[*461

*Doe dem. SAUNDERS v. COOPER.

A lease for a year to A. and his wife will support a release to A. and a third person.

EJECTMENT 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 Saunders, 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, contra

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 *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 re[*462 leasee, William Saunders, to take a release to them, as joint-tenants under this deed.

Though the right of the soil in a public highway belongs to the owner of the adjoining closes (when no other proprietor appears) usque ad filum viæ; this is only a presumption of law in his favor, when the original dedication of the road cannot be shown by positive evidence. And if there are circumstances in 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 evidence of property beyond the mere presumption of law.

TRESPASS for breaking and entering a close, which was a piece of land which the defendant had enclosed between the plaintiff's field and a public road.Plea, not guilty. The plaintiff was the owner of the close adjoining the locus in quo, which was a slip of green sward, across which the road extended. The breadth of the road (including the green sward) was about sixty or seventy

yards between the fence of the plaintiff's close and the fence of the occupier of the opposite close. It was in evidence that this green sward had been generally treated as waste land, and as a portion of a neighboring 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.

Williams, for the defendant, contended, that the plaintiff could not recover *464] without showing property in the soil; that the evidence of such *property, as far as presumption went, was against him. Non constat but the locus in quo is part of the waste. Admitting the property in the soil still to continue in the person who dedicates a part of his land to public uses as a highway; in the present case it was not to be presumed that the plaintiff had made any such dedication. 1. From the great extent or breadth of the slip of land intervening between the opposite fences. 2. From the absence of all proof of acts of ownership by the plaintiff over the place in question. 3. That, in one part, it adjoined to an acknowledged common.

Hullock, Serjt., and Richardson, contra.-If the defendant can show a title in some other person, he rebuts the title of the plaintiff; but, in the absence of such proof, the property must be adjudged to the plaintiff upon the ordinary presumptions of law, which are, that the property of the soil in a highway belongs to the owner of the adjoining land, usque ad filum viæ. Now, the defendant has enclosed a part between the plaintiff's close and the highway, and is thereby a trespasser. It is for the defendant to show property in some other person.

BAYLEY, Justice.-It is difficult in many cases to discover the origin of roads. They are sometimes made over waste or common lands, in which case the rights of soil, subject to the public easement, are in the lord of the manor. In other cases they are allotted by the owners of adjoining lands, and then the property in the soil continues in such owners, subject to the rights of general passage. *I think the presumption of the private rights of the plaintiff *465] are negatived by the circumstances of this case; so far at least as to make it incumbent on him to adduce some evidence of property, or act of ownership, from which property may be inferred. In the absence of such evidence, I shall direct the jury to presume the locus in quo to be common land or waste.

Hullock, Serjt., and Richardson, for the plaintiff.
Williams, for the defendant.

Nonsuit.

466]

*NESHAM et al. v. ARMSTRONG et al.

In an action on the Riot Act, and upon the 52d G. III. c. 130, against the hundred: Held, that burning, though specifically mentioned in a clause of the statute, as distinct from a demolishing or pulling down, is included in the latter terms. Q. If a staith, which is a place of deposit for coals, is an erection, building, or engine, with.n the meaning of the first and second sections of the 52d G. III. c. 130.

THIS was an action against the Hundred for the destruction of a stable, and two staiths, part of a colliery, by a mob, on the 20th of March, 1816. The staiths and stable were in the township of Bishop Wearmouth. The stable was pulled down; and one of the staiths was burnt. As respected the stable, the declaration was framed upon the 1st Geo. I. st. 2. c. 5; the Riot Act. In regard to the staiths, which are places for the deposit of coals; the counts were VOL. III.-24. Q 2

The clause in the latter statute is

framed upon the 52d Geo. III. c. 130. st. 2. as follows: "And be it further enacted, that if, after the passing of this Act, any person or persons, (following the words of the Riot Act,) shall unlawfully or with force demolish or pull down, &c., any erection and building, or engine, which shall be employed in the carrying on or conducting of any trade or manufactory, or any branch or department of any trade or manufactory of goods, &c., of any kind or description whatever; or in which any goods, &c., shall be warehoused or deposited, that then, &c." The clause then proceeds to make such demolishing felony, and gives an action against the Hundred by the parties injured to recover damages.

It appeared that there had been an examination of one of the plaintiffs before a magistrate, in compliance with the provision of the 4th section of the Act, who was the principal manager of the concern.

[*467 Richardson, for the defendants, contended, that as the object of the act was to detect the offenders, all the plaintiffs should have been examined. The act directs that all persons who claim redress shall be sworn and examined.

BAYLEY, Justice.--I think if the plaintiff, who was examined, was the manager, and the only person actively employed, it is sufficient. I will not stop the case on this objection.

Richardson then objected, 1. That the case did not fall within the 52d Geo. III. c. 130. s. 2.; that clause extended only to trades and manufactories, the conductors of which (under the general name of traders and manufacturers) were meant to be protected from the violence of a mob. Warehouses and depositories of goods might require such protection. But, in the present case, the staiths do not fall under the description in the act. They are not erections, buildings, or engines, for the purpose of trade and manufacture. They are parts of a colliery quite distinct from general trade. Neither could the owners of the staiths be called traders in the common use of the word, 2. With respect to the larger staith, it was burned. Burning is not included in the general word demolishing. There is a clause in the act specifically providing redress against burning, which does not mention demolishing.

*BAYLEY, J.-I think burning is included in the general word [*468 demolishing, &c. The act meant to provide against destruction and spoliation; burning is only one of the means. With respect to the objection upon the staith not being within the clause of the act of parliament, I will reserve the point.

Hullock, Serjt., and Tindall, for the plaintiffs.
Richardson, for defendants.

Verdict for the plaintiff.

In an indictment upon the 43d G. III. c. 58. Semble that the words "some other grievous bodily harm," must be construed to extend to such wounds only as are inflicted upon a vital part in the body.

THE prisoner was indicted on the 43d G. II. c. 58. The circumstances were these:-The prosecutor and some other men had got hold of a woman,

who, as they conceived, had been using another person ill. They said that she deserved to be ducked in a trough which was near; but it did not appear that such was their intention. The prisoner, who was at some distance at the time, on being informed that they were using the woman ill, exclaimed, "I have got a good knife," and immediately rushed to the place where she was. He entered among the crowd and instantly struck the prosecutor on the shoulder with a knife. The prosecutor turned round upon him; a struggle ensued between them; and in that struggle the prosecutor received other wounds. After they had fought for some time, the prisoner dropped the knife, and ran away. The wound upon the prosecutor's shoulder was about seven inches long, and two deep; and the lap of one of his ears was cut. There was likewise a slight wound on the gland of his neck, and a cut on his left arm. The indictment contained counts, *1. For an intent to murder, &c.; and *470] 2. To maim, disfigure, and disable; 3. And to do some other grievous bodily harm.

Williams, for the prisoner, objected-1. That the first and second counts in the indictment were not supported by the evidence. The only question was upon the third count--Did the prisoner mean to do "some other grievous bodily harm," to the prosecutor? He submitted that the wounds were not of that kind from which grievous bodily harm could ensue. It was a scuffle in which a knife was used accidentally, without any settled design to "maim, disfigure, or disable," or to do "other grievous bodily harm" to the prosecutor 2. The wounds were not inflicted in a part of the body, which could produce such a consequence.

BAYLEY, J. entertained some doubts on the circumstances; the wounds were not in a vital part; and quære, whether the injury done was a grievous bodily harm contemplated by the act? Had death ensued, would it have been more than manslaughter? And was not this limit clearly understood throughout the act? His lordship directed an acquittal, under all the circumstances of the

case.

Richardson and Cooksun, for the prosecutor.
Williams, for the prisoner.

*REPORTER'S NOTE.

*471] *The following is the main provision of the 43d of G. III. c. 58-The first section enacts-That if any person, &c. shall, either in England or Ireland, wilfully, maliciously and unlawfully shoot at any of his majesty's subjects, or shall wilfully maliciously and unlawfully present point or level any kind of loaded fire-arms at any of his majesty's subjects, and attempt by drawing a trigger or in any other manner to discharge the same, at or against his or their person, &c.; or shall wilfully maliciously and unlawfully stab or cut any of his majesty's subjects with intent, by so doing or by means thereof, to murder or rob or to maim, or with intent to do some other grievous bodily harm, to such his majesty's subject or subjects, disfigure or disable such his majesty's subject or subjects, or with intent to obstruct resist or prevent the lawful apprehension and detainer of any of his her or their accomplices, for any offences for which he she or they may be respectively liable by law to be apprehended imprisoned or detained, or shall wilfully maliciously and unlawfully administer to or cause to be administered to or taken by any of his majesty's subjects any deadly poison or other noxious or destructive substance or thing, with intent such his majesty's subject or subjects thereby to murder, or thereby to cause and procure the miscarriage of any woman quick with child; that then and in every such case the person or persons so offending, their counsellors; aiders and abettors, knowing of and privy to such offence, shall be and are hereby declared to be felons; and shall suffer death as in cases of felony, without benefit of clergy.

Provided always, that in case it shall appear on the trial of any person or persons indicted for the wilfully maliciously and unlawfully shooting at any of his majesty's subjects, or for wilfully maliciously and unlawfully presenting pointing or levelling any kind of loaded fire-arms at any of his majesty's subjects, and attempting by drawing a trigger or in any other manner to discharge the same at or against his or their person or persons, or for wilfully maliciously and unlawfully stabbing or cutting any of his majesty's subjects with such intent as aforesaid; that such acts of cutting or stabbing were committed under such circumstances as that if death had ensued therefrom the same would not have *472] amounted to the crime of murder; that then, and in every such case, the person or persons so indicted shall be deemed and taken to be not guilty of the felonies whereof they shall be so indicted, but be thereof acquitted."

The object of this act, which was much called for, and particularly for the security of police officers, at the time it was passed, was threefold:

1. To give the same legal quality to the initiative act, which would belong to the act completed; that is to say, to make the attempt, partly executed, murderous, where the act, consummated, would have been murder.

2. To supply a defect in the coventry act, by withdrawing the necessary qualification under that act, the lying in wait; a limitation which took all cases out of the reach of that act in which there was any malicious cutting or stabbing not accompanied by such lying in wait.

3. To meet some particular mischiefs at the time when the act was passed; namely, the practice of thieves, at that time become most frequent and atrocious, of cutting and stabbing police officers, employed in the pursuit or apprehension of them.

The term in the act, "grievous bodily harm," looks particularly to this; and thereby, in addition to the taking away the necessity of the circumstance of lying in wait, gives an extent to this act beyond the coventry act; as, under the term (grievous bodily harm,) the wound need not be given either in a part which by law is a mayhem; nor in a visible part, as under the term, disfigure," in the coventry act; nor even in a part regarded as vital. For this act, under its term, grievous bodily harm, comprehends stabbing or cutting in the thighs, legs, or any other part; subject only to the limitation, that if death ensue from such act, it must (under the circumstances) amount to the crime of murder; and, therefore, by implication, that there might be a possibility of death ensuing, namely, by the cutting of an artery, or the loss of blood, &c.

4. But as the terms in the act, cutting and stabbing, and the description which follows them, all belong to wounds made by a sharp instrument; so the application of the act under the words wounding, &c. *confined to a wounding by such sharp instrument. [*473 Therefore, wounds made by a bludgeon, a poker, or instruments without a point or edge, would not be within this act; cutting taking in all edged instruments, and stabbing comprehending all instruments with points.

5. The words in the act which direct an acquittal, if the cutting, &c., be "under such circumstances as if death had ensued therefrom, the same would not in law have amounted to murder," are intended further to define the crime under the statute, by requiring that malice prepense in the initiative, (as it were,) of the action, which in the completion of it, would have rendered it murder. This limitation is necessary in order to exclude such acts, as in their consummation would only have been manslaughter; and, therefore, in their initiation, are only violent personal assaults.

6. If the means by which the murder, as it were, is thus commenced, be totally and obviously inadequate to the effect; the act, it would appear, would have the advantage of this two-fold favorable presumption; first, that murder was not intended, and, therefore, that the act wanted the quality of malice prepense; and, secondly, that it did not fa!! within any of the terms of the statute, which, under its most general description, requires an act, or an attempt, which might be mortal.

7. One of the clauses in this act is directed against maliciously cutting with an intent to resist lawful apprehension. But if this cutting take place in an attempt to apprehend the prisoner without a due notification of the warrant or authority by which the person acts, it obviously does not fall within the clause; as it is not a wilful resistance of a lawful apprehension. Rex. v. Ricketts, 3 Campb. 68.

*CARLISLE

ASSIZES, 56 GEORGE III. 1816.

[*474

CLERK v. BLACKSTOCK.

A note beginning "I promise to pay," signed by two parties, is joint and several. A promissory note is signed by A., and subsequently by B., whilst in the hands of the payee, as surety for A.; unless such signature of B. is in virtue of a previous agreement at the time of making the note, it will be void, without an additional stamp.

THIS was an action on a promissory note, brought against the administratrix of John Blackstock, deceased. The note was as follows:

"I promise to pay to Mr. J. Clark, or order, the sum of 30l. with lawful interest for the same, value received.