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1816.

FARMER

JOSEPH.

common

sense

parentis; or an orphan in the the more remote character of a same manner; and in a condi- protector, or domestic benefaction of life (such as that of a tor, from Christian duty. gentleman) where no actual We have conceived it necesservice can be imagined, in sary to explain the nature of the

of that this action, as cases are ocword: the Courts, however, curring every day in which will, in all these cases, admit more importance is assigned the action ; it will suppose to the mere formal part of the such a service as that of a action than belongs to it. Vide daughter to a father ; a do- Dean v. Peel, 5 E. R. 45. and mestic attendance and obedi. the cases cited in the argument ence; and, upon this ground, and the notes. Bennett v. Allwill not suffer the question of cott, 2 T. R. 166. 3 Burr. service, and therein the juris. 1878. Fores v. Wilson, Peake diction of courts of law over N. P. 55.; and Irwin v. Dear. the action, to be disputed. man, 11 East 23., in which it And with respect to the rela- was held, that this action could tion of the parent, guardian, be maintained for the seduction protector, or master, bringing of an adopted child. And in the action, the law is equally Edmonson v. Machell, 2 T. R. satisfied with any thing ap. 4., it was adjudged that it proaching to the nature of a might be brought by an aunt pater familias; or even with for the seduction of her niece,

1816.

JACKSON 0. STACEY.

way, and does

universal purposes. There

over the locus

unlimited

TR
VRESPASS for breaking the plaintiff's close. A right of

The land in question was a head-land, or cultural pur piece of ground, between a close belonging to the poited and qua. plaintiff, and some land of the defendant's, who had lified right of a quarry in his field, from which he was in the not, necessahabit of carting lime daily over the locus in quo. right to use The defendant pleaded, 1. Not guilty. 2. A ge- general and neral right of way over the locus in quo. 3. A right of way, at all times, and for all

at all times, and for all purposes, in fore, where 4. virtue of his occupation of an adjoining field. proved a right 4. A general right of way which he claimed under and manure a non-existing grant. The plaintiff took issue in quo, Held, upon these pleas; and likewise made a new assign- that he had

not, therefore, ment, denying the defendant's right of using the a general and road for general purposes.

right to carry

produce of a It appeared that the defendant had bought the ha

the locus in que 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

lime, or the

1816.

evidence that the road had been used for other purposes besides agriculture.

Jackso

STACEY.

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 liine-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,

1816.

Jackson

he usurped a larger interest in the road than he had 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 qualified by reference to the purposes of agriculture.

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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.

Verdict for the plaintiff.

Scarlett, Maude, and Littledale, for the plaintiff.

Raine and Richardson, for the defendant.

Vol. I.

2 H

1816.

WRIGHT v. HORTON.

THI

18 Geo. II.

1. A person NHIS was an action of debt upon the statute who has qualified for the

18 Geo. II. c. 20, brought against the delitice Beades fendant, to recover a penalty of 1001. for acting as and acts as

a Justice of Peace in the county of York, not such, must have a clear, being duly qualified by law. The clause in the

. per annum, in statute is, No person shall be capable of being, equity, for his or acting as, a justice of the peace, for any county, own use, in possession.

who shall not have, in law or equity, for his own tion against a use, in possession, a freehold, copyhold, or custoperson for the

mary estate for life, or some greater estate, or an penalty given by the statute estate for some long term of years, determinable c. 20., for act. upon one or more lives, or for a certain term origistrate with. ginally created for twenty-one years or more, in ont a proper lands, tenements, or hereditaments, in England or

,

Wales, of the clear yearly value of 1001. above action is ne. cessary under what will discharge all incumbrances affecting the the provisions

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.

no notice of

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

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