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1816.

JACKSON O. STACEY.

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TRESPASS 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 peoples itali 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

such way for The defendant pleaded, 1. Not guilty. 2. A

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 purposes, in fore, where a. 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- not

, therefore

, ment, denying the defendant's right of using the a general and road for general purposes.

right to carry lime, or the

produce of a It appeared that the defendant had bought the the locus in quo 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.

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

JACKSON

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 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,

1816.

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.

Jackson

STACEY.

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 ». HORTON.

1. A person

T who has qua

THIS was an action of debt upon the statute lified for the

18 Geo. II. c. 20, brought against the debiticorpeaces. 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 bave a clear

being duly qualified by law. The clause in the cstate of 1001. 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 2. In an action against a

use, in possession, a freehold, copyhold, or custoperson for the mary estate for life, or some greater estate, or an 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 out a proper

lands, tenements, or hereditaments, in England or qualification, 10 votice of

Wales, of the clear yearly value of 1001. above action is necessary under what will discharge all incumbrances affecting the the provisions of the 24th same, and all rents and charges payable out of the Geo. II. c. 44.

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.”

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

1816.

a magistraté, without acquiring any new qualification. He had qualified originally in 1802. No notice of this action had been given by the plaintiff to the defendant.

WRIGHT

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, wus 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

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