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a magistrate, without acquiring any new qualifica- 1816. tion. He had qualified originally in 1802. No m notice of this action had been given by the plain

Wright tiff to the defendant.

Horton.

Richardson and Williams, for the defendant, contended, that the plaintiff was bound to prove a notice of action according to the provisions of the statute 24 Geo. II. c. 44. The defendant had acted as a magistrate, and was therefore entitled to the privileges and protection of that office : but

Mr. Baron Wood ruled, that he was not within the act. The question to be tried is, was he a magistrate?

They then contended, that if they were enabled to shew when Mr. Horton was discharged from prison, that there was a fair probability that his estate would pay his debts, and leave a sufficient surplus to uphold the qualification of a magistrate, the present action would not lie. A legal estate in land was not necessary; an estate in equity was sufficient. They therefore proposed to shew, that there would be a surplus of 1001. per annum after paying Mr. Horton's debts..

Mr. Baron Wood.--All the defendant's estate is now vested in the Clerk of the Peace. His legal and equitable rights are equally transferred to his creditors. We cannot take an account here, and declare a surplus in his favour. The defendant

1816.

may ultimately be entitled to qualify ; but, at present, he has not the title which the act of parlia. ment requires.

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Verdict for the plaintiff.

Scarlett and Littledale, for the plaintiff.

Richardson and Williams, for the defendant.

1816.

Doe d. SAUNDERS V. Cooper.

TJECTMENT for three messuages in Hunslet, A lease for a

1 in the county of York. In support of the year to A. and defendant's title, indentures of lease and release support a re.

lease to A. and were put in; the lease made between Ralph Saun- a third person. ders of the one part, and the defendant and Elizabeth his wife of the other part; and the release made between the said Ralph Saunders of the first part, the defendant and Elizabeth his wife of the second part, and the defendant and William Saunders, of the third part; habendum to the defendant and William Saunders, their heirs and assigns. Upon the trusts, and to the uses therein mentioned.

Raine and C. Milner, for the lessor of the plaintiff, objected, that the bargain and sale for a year, being to the defendant and Elizabeth his wife, and the release to defendant and William Saun ders, who took as joint-tenants, the releasees had not a possession upon which the release could operate: and that, if it did not operate as a release, it was void; for it could not take effect as a bargain and sale under the statute; which must be enrolled, and for a valuable consideration.

S

Scarlett and Wales, contrà.

Mr. Baron Wood.-The bargain and sale vests the possession for a year in defendant and his wife: one of the releasees therefore has that possession

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which, under the statute of uses, enables him to accept a release; and I think that this possession is sufficient to entitle him, and the other releasee, William Saunders, to take a release to them, as joint-tenants under this deed.

Cooper.

Verdict for the defendant.

The point was saved ; but not afterwards moved.

Raine and C. Milner, for the lessor of the plaintiff.

Scarlett, Hardy, and Wailes, for the defendant.

See Spyve v. Topham, 3 East 115.

1816.

DURHAM
ASSISES, 56 GEORGE III.

HEADLAM v. HEDLEY.

TRESPASS for breaking and entering a close, Though the which was a piece of land which the defend- righ

do soil in a public ant had enclosed between the plaintif's field and highway be.

longs to the a public road.- Plea, not guilty. The plaintiff owner of the was the owner of the close adjoining the locus in closes (when

adjoining quo, which was a slip of green sward, across which prietor apo

h no other prothe road extended. The breadth of the road (including the green sward) was about sixty or se- is only a pre

sumption of venty yards between the fence of the plaintiff's law in his fa

vour, when the close and the fence of the occupier of the opposite original dediclose. It was in evidence that this green sward

cation of the

road cannot be had been generally treated as waste land, and as a

shewn by po

sitive evi portion of a neighbouring common, to which, on dence. And if

there are cirone extremity, it adjoined. That it had been used cun.Stances in

the case which as a common for cattle, for a long space of time, bring this by some persons in the next village. There was

presumption

of property in no evidence that the plaintiff had exercised any

plaintiff, who act of ownership over it. But he rested his case claims such

road in an acupon the general presumption of law.

pass, must give

some other eviWilliams, for the defendant, contended, that the dence of pro

perty beyond plaintiff could not recover without shewing pro- the mere pre

sumption of perty in the soil; that the evidence of such pro- law.

tion of tres

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