1816. FARMER V. JOSEPH. parentis; or an orphan in the same manner; and in a condition of life (such as that of a gentleman) where no actual service can be imagined, in the common sense of that word: the Courts, however, will, in all these cases, admit the action; it will suppose such a service as that of a daughter to a father; a domestic attendance and obedience; and, upon this ground, will not suffer the question of service, and therein the jurisdiction of courts of law over the action, to be disputed. And with respect to the relation of the parent, guardian, protector, or master, bringing the action, the law is equally satisfied with any thing approaching to the nature of a pater familias; or even with the more remote character of a protector, or domestic benefactor, from Christian duty. We have conceived it necessary to explain the nature of this action, as cases are occurring every day in which more importance is assigned to the mere formal part of the action than belongs to it. Vide Dean v. Peel, 5 E. R. 45. and the cases cited in the argument and the notes. Bennett v. Allcott, 2 T. R. 166. 3 Burr. 1878. Fores v. Wilson, Peake N. P. 55.; and Irwin v. Dearman, 11 East 23., in which it was held, that this action could be maintained for the seduction of an adopted child. And in Edmonson v. Machell, 2 T. R. 4., it was adjudged that it might be brought by an aunt for the seduction of her niece, 1816. JACKSON V. STACEY. A ge- RESPASS for breaking the plaintiff's close. The land in question was a head-land, or piece of ground, between a close belonging to the plaintiff, and some land of the defendant's, who had a quarry in his field, from which he was in the habit of carting lime daily over the locus in quo. The defendant pleaded, 1. Not guilty. 2. neral right of way over the locus in quo. right of way, at all times, and for all purposes, in virtue of his occupation of an adjoining 4. A general right of way which he claimed a non-existing grant. The plaintiff took upon these pleas; and likewise made a new assignment, denying the defendant's right of using the road for general purposes. field. under issue that he had not, therefore, a general and unlimited right to carry lime, or the produce of a quarry over at all times, It appeared that the defendant had bought the field, in which the lime quarry was, from one and for all Poole; that the quarry had been first opened about purposes. 15 years ago; that he had paid an acknowledgment for the use of another road more circuitous than that over the head-land, and had only used the locus in quo within the last two years. But there was evidence that the head-land, which was generally cultivated, had been always used by the occupiers of the defendant's field as a road for agricultural purposes; and that the former occupiers had sometimes trodden down the crops whilst they were so using it. There was likewise some slight 1816. JACKSON v. STACEY. evidence that the road had been used for other purposes besides agriculture. Raine and Richardson, for the defendant, contended-1. If a man has a way for agricultural purposes, which the evidence in this case established beyond contradiction, he has a right to carry lime-stone, or any other produce of the earth, by the same way. Is he to be confined to the naked right of carrying the surface and crops of the earth? Having a general right of way, he may build a house or barn on his field; and if the bowels of his land produce minerals, or other valuable substances, he may dig them up, and carry them by the same way. 2. The defendant has not abandoned his right because he has hired another way for that purpose. Scarlett, contrà.-Where a man has a right to use a road at all times of the year, and for all purposes, if he find a mine in the field (in respect of the occupation of which he claims such road) he may work his mine, or build upon his soil, and use the road without limitation or stint. But the present is a qualified right. The, only evidence is, that the head-land has been used for agricultural purposes. Now, the defendant might have a right to use this way to manure his land, or to carry his crops, and for no other purpose. The lord of a manor may have a right to the minerals in the soil, but he cannot break the surface of the earth, and claim a universal right of way over his tenants' (the copyholders') estate, without such copyholders' consent. When the defendant opened a quarry, JACKSON v. he usurped a larger interest in the road than he had 1816. heretofore exercised; a general and universal right of way. But no witness speaks to this general use, in the extent in which it is claimed. It was always STACEY, qualified by reference to the purposes of agriculture. Mr. Baron WOOD.-If the defendant is entitled to a general right of road, the plaintiff cannot recover in this action. If the defendant has only a qualified right, the plaintiff has made out his case. The defendant puts his case upon this point; that, from the right of using the road for agricultural purposes, may be inferred the right of using it for all purposes. In a word, that he may carry lime, as well as corn, over the road in question; and that he may work his quarry generally, and at all times of the year. This is not the law. A right of road may be qualified and limited; and the defendant does not make out his case by shewing that he was never obstructed in using the road for purposes of agriculture. He must shew a general and unqualified right, in order to warrant the manner in which he has used this road. There .is some evidence, however, of this general use. I shall leave it to the Jury. tiff. Verdict for the plaintiff. Scarlett, Maude, and Littledale, for the plain Raine and Richardson, for the defendant. VoL. I. 2 H 1816. 1. A person who has qualified for the office of a jus and acts as such, must have a clear estate of 100%. per annum, in law, or in equity, for his own use, in possession. 2. In an action against a person for the penalty given by the statute 18 Geo. II. TH WRIGHT. HORTON. THIS was an action of debt upon the statute 18 Geo. II. c. 20, brought against the detice of peace, fendant, to recover a penalty of 1007. for acting as a Justice of Peace in the county of York, not being duly qualified by law. The clause in the statute is, "No person shall be capable of being, or acting as, a justice of the peace, for any county, who shall not have, in law or equity, for his own use, in possession, a freehold, copyhold, or customary estate for life, or some greater estate, or an estate for some long term of years, determinable upon one or more lives, or for a certain term originally created for twenty-one years or more, in lands, tenements, or hereditaments, in England or Wales, of the clear yearly value of 100l. above cessary under what will discharge all incumbrances affecting the same, and all rents and charges payable out of the same; or who shall not be entitled to the immediate reversion, or remainder of lands, leased for one, two, or three lives, or for any term of years' determinable on the death of one, two, or three lives, upon reserved rents, of the clear yearly value of 3001." c. 20., for act ing as a ma gistrate with out a proper qualification, no notice of action is ne the provisions of the 24th Geo. II. c. 44, It appeared that the defendant had taken the benefit of an insolvent act in January 1814, subsequent to which time he had repeatedly acted as |