Pais, contains a dictum, but not a judicial opinion of Sir Matthew Hale. Every one who hears me must acknowledge the impropriety of construing all the conversation which passes between a Judge and the counsel at Nisi Prius, as legal decision. It would in this instance be a want of respect to the memory of Hale, to argue that he meant to give a serious opinion on the right of gleaning, when his dictum tends only to prove that such a right must be pleaded, and not given in evidence under the general issue, Gilbert and Blackstone have copied from Hale. In the ease of The King v. Price, 4 Burr. 1927, Mr. Justice Yates says, "As to the right of leasing it will be time enough to determine that point when it comes directly in question." This is a full answer to the argument "that there are no cases on this subject, because the custom was too well established to admit of a question."
But it has been farther argued, that the farmer having abandoned the leavings of his crop, the poor are entitled to them.
Now supposing a right could arise from abandonment, it would be in the first occupier, the property would be as in a state of nature, the poor could not have any exclusive right. But the truth is, there can be no abandonment, while the property remains on the soil of the owner. It might with as much reason be urged, that a man bad abandoned the property of his horse, who having right of common, had turned him out to pasture.
For these reasons therefore, I am of opinion that the law should not interfere in this case, but that every man's conscience should be his law.
Judgment for the plaintiff.
[64] Ensues against Wits. 1788.
Where thera is « promise “to pay a bill of exchange within a fixed time, if during that time ne proof ba brought of its being already paid,” though the promise be broken (no proof being brought within the time), and the plaintiff in an action on the bill with an insimul computassent, gives evidence under the insimul computassent of the special promise, yet the defendant may also prove under that count, that the debt for which the bill was originally given was paid, and thereby avoid the promise by shewing it was without consideration.
Assumpsit, by the indorsee of a bill of exchange against the drawer, the bill being refused acceptance—-2d, count for money paid—-3d, money had and received—4th, ingimul computasaent.—
Plea general issue, and set-off.—
This cause came on to be tried befora Mr. Juatice Gould, at Hertford Assizas in the sammer 1787.
It appeared in evidence, that the plaintiff and defendant had mutual dealings together, and had applied to one Rawnsley'to settle their accounts, who accordingly adjusted all matters in dispute, except the bill on which the action was brought, This, the defendant said, he could prove he had paid. Upon which, it was agreed that the bill should be deposited in the hands of Rawnsley, and if the defendant brought proof of the payment within a month, the bill should be delivered up to him, if not, he promised to pay it to the plaintiff. No proof being brought by the defen- dant within the month, the bill was delivered to the plaintiff, who brought bis action upor it.
The counsel for the defendant offered to give evidence that the original debt was paid, for which the bill was given, and that the defandant could not within the month find the witness by whom it might have been proved according to the agreement, he having absconded to avoid an arrest.
But thie evidence the Judge refused to admit, holding that the defendant was bound by his agreement to pay the bill, if he did not bring the necessary proof within the month (@).
Tn Michaelmas term last a rule was obtained to shew cause why a new trial should not be granted, on the ground that this evidence ought to have been admitted. uamrence, Serjt., shewed cause against the rule, and Rooke, Serjt. argued in favour off it.
(a) See 1 Lutw. 663. Cro. Jac. 381. �
