a magistrate, 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.

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 100l. 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.

WRIGHT

V.

HORTON.

1816.

WRIGHT

2.

HORTON.

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

Verdict for the plaintiff.

Scarlett and Littledale, for the plaintiff.

Richardson and Williams, for the defendant.

1816.

EJECT

DOE d. SAUNDERS v. COOPER.

JECTMENT for three messuages in Hunslet, in the county of York.-In support of the defendant's title, indentures of lease and release were put in; the lease made between Ralph Saunders 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.

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

1816.

DOE

v.

COOPER.

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.

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 Spyce v. Topham, 3 East 115.

DURHAM

ASSISES, 56 GEORGE III.

1816.

TR

HEADLAM. HEDLEY.

Though the right of the

soil in a public

longs to the

adjoining

no other pro

(in- fitum vic; this

pears) usque ad

se

is only a pre

sumption of

law in his fa

vour, when the

RESPASS for breaking and entering a close, which was a piece of land which the defendant had enclosed between the plaintiff's field and highway bea public road.-Plea, not guilty. The plaintiff owner of the was the owner of the close adjoining the locus in closes (when quo, which was a slip of green sward, across which prietor apthe road extended. The breadth of the road cluding the green sward) was about sixty or venty yards between the fence of the plaintiff's close and the fence of the occupier of the opposite original dediclose. It was in evidence that this green sward road cannot be had been generally treated as waste land, and as portion of a neighbouring common, to which, on one extremity, it adjoined. That it had been used as a common for cattle, for a long space of time, by some persons in the next village. There was no evidence that the plaintiff had exercised any act of ownership over it. But he rested his case upon the general presumption of law.

a

Williams, for the defendant, contended, that the plaintiff could not recover without shewing perty in the soil; that the evidence of such

cation of the

shewn by positive evi

dence. And if cun.stances in

there are cir

the case which

bring this presumption of property in

question, the plaintiff, who claims such

road in an action of trespass, must give some other evi

dence of propro- the mere pre pro- law.

perty beyond

sumption of