jury was not warranted. He referred to Rex v. Lloyd (a), Rex v. Barr (b), and The Rugby Charity v. Merryweather (c).

ABBOTT, C. J.-I am of opinion there ought to be no new trial in this case. If the defendant has a right of approach to his own house over the locus in quo, he may bring an action for disturbing it. I should have felt some concern if, in the result of the trial of a question of this kind, it had been found that places of this description are to be considered public highways. This is a little court, leading to four or five private houses; but it is not a thoroughfare. I told the jury, however, that for the purpose of the present case they might consider that in point of law there might be a highway in a place where there was no thoroughfare. That was with reference to the case of The Rugby Charity v. Merryweather. I then left it to them to consider whether they were satisfied there had been a dedication of this place to the public by the owner of the fee, or by his authority, prior to the lease of 1719, telling them at the same time that nothing done by the tenants during the continuance of the lease, without the authority of the landlord, could prejudice his reversionary rights. I told them, that certainly during the continuance of the lease the landlord could not have erected such a bar as this without committing trespass; but at the same time that the landlord might file a bill of injunction to restrain his tenants from making the locus in quo a public highway during the continuance of their tenancy. The point I left them to consider was, whether there had been a dedication to the public of this spot by the owner of the soil; and I told them, that if they were satisfied there had t been such a dedication, they would find for the defendant;

(a) 1 Campb. 260. (b) 4 Campb. 16. (c) 11 East, n. a. 376.

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v.

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v.

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but if otherwise, for the plaintiff; and they found their verdict for the plaintiff.

BAYLEY, J.-The question whether there can be a public right of way over land where there is no thoroughfare, is a question which the Court will consider when it shall plainly and distinctly arise, but it does not arise in this case. The ground of defence here is, that there has been such a public user of the soil as to shew that the public have a right to go over it, and to continue the use of it in future. Now, primâ facie, public use is evidence of public right; but that may be explained; and if it is satisfactorily explained, then that destroys the notion of the existence of that apparent right which can be legally referred to something else. To give the public a right, it must be given by the person who is the owner of the fee. If given by a person who has a limited interest, it only continues during the continuance of that interest. In this case the owner of the soil does not grant a public right of way, but he gives to his tenants, who occupy particular houses, a right of way to be exercised by them for a period of ninety-nine years; and he divests himself of all power of obstructing them in the free access to those houses during the continuance of that term. The mere dedication of this as a right of way to the public by the tenants, would not bind the owner of the fee; and it was for the jury to say, whether the spot had ever been dedicated by the owner of the soil to the public; and therefore I think the case was properly left to the jury.

HOLROYD, J.-I am of opinion also that the case was rightly left to the jury; and I can find no fault with the conclusion to which they have come. When the question whether there can be a public right of way, where there is no thoroughfare, shall fairly arise, the conse

quences of the doctrine laid down in the case of The Rugby Charity v. Merryweather may be further considered. That case decided, for the first time, that where there is no thoroughfare, there may be a public highway. Should that case ever be considered again, I think it will be found at variance with principles which have been solemnly decided; but taking it for granted that the doctrine there laid down by Lord Kenyon is correct in point of law, I think the jury have, in this case, drawn the right conclusion.

BEST, J.-I entertain the greatest respect for the authority of Lord Kenyon; but I think the principle upon which the case of The Rugby Charity v. Merryweather (a)

(a)" It was an action of trespass brought by the trustees of The Rugby Charity v. Merryweather, at the Sittings in Middlesex, on the 26th of May, 1790, to try a right of way in dispute between the plaintiffs and the Governors of The Foundling Hospital. There were several pleas of justification on the record, amongst others, one stating that the locus in quo (which was Lamb's Conduit Street) was a common highway, and that the supposed trespass was committed in removing an obstruction there. The evidence was, that the right of the soil was clearly in the plaintiffs; but there had been a common street there, though no thoroughfare, by reason of the houses at the end, for above fifty years. The plaintiffs accounted for not having put up a bar or the like, to denote that the way was not relinquished to the public at large, by shewing that the locus in quo had been in lease for a long term up to the year 1780. Lord Kenyon, C. J. asked what the plaintiffs had to say to the time from 1780 till about two years ago, when they had put up a bar. In answer, it was said, that they had been in treaty with The Foundling Hospital, respecting the allowing them a right of way, which was finally broken off. Per Lord Kenyon. If this rested solely on the ground of a question of right between the plaintiffs and The Foundling Hospital, the former would certainly not have been barred by the time which elapsed from 1780 till the obstruction was put up, pending the treaty between them but during all that time they permitted the public at large to have the free use of this way, without any impediment whatever; and therefore it is now too late to assert the right; for this is quite a sufficient time for presuming a dereliction of the way to the public. In a great case, which was much contested, six years was held sufficient. And as to this not being a thoroughfare, that can make no

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v.

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was decided, is a departure from that principle upon which public rights are founded. The right of way in this case is connected only with the particular houses to which the passage in question leads, and is limited by the duration of the tenancy of the respective occupiers, who certainly had no right to dedicate it to the use of the public in prejudice of the reversionary rights of their landlord, whose concurrence in the dedication was essential to the confirmation of this as a public highway. I am of opinion therefore that the verdict is right.

Rule refused.

difference. If it were otherwise in such a great town as this, it would be a trap to make people trespassers. The Duke of Bedford preserves his right in Southampton Street, Covent Garden, by a bar set across the street, which is shut at pleasure, and shews the limited right of the public. The jury found a verdict for the defendant upon the issue on the common highway."

Tuesday, January 29.

Where a defendant was

indicted with

an alias dictus,

and pleaded in

abatement that he was not

The KING v. GEORGE CLARK alias JOHN JONES.

THE

HE defendant had been indicted by the name of George Clarke for an alleged libel. To that indictment he pleaded a misnomer, and gave his name as John Jones, upon which the prosecutor abandoned that indictment, known by such and indicted him again by the name of John Jones alias name: Held, George Clark. The defendant having pleaded to this indictment that he was never called or known by the name of George Clark, but that he had always been called and known by the name of John Jones.

that the plea

must be demurred to, and could not be quashed on motion.

G. Marriott now moved for a rule to shew cause why this plea should not be quashed, and the defendant

required to plead in chief, for that this was no plea at all,

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CLARK.

or if it was a plea, it amounted to the general issue. He The KING cited Com. Dig. tit. Pleader, E. 14. Hob. 127. and 1 Leon. 178, as cases shewing that the prosecutor was not bound to demur, but might move to quash the plea.

Per Curiam. We cannot try the merits of this plea on affidavit. The proper course is to demur, or to reply and take issue on the plea. The defendant has a right to be indicted by his right name if he thinks proper. If he is not indicted by his right name, he has a right to plead in abatement. All the defendant says by his plea is, that the name by which he is indicted is not his true name. It may not be a good plea, but the prosecutor must demur to it. It is said, that when a plea amounts to the general issue it shall not be demurred to, but this is not a plea to the general issue. The general issue on an indictment is Not Guilty, and no assumption or inference can convert this into a plea of Not Guilty. If it is no plea at all, let the prosecutor demur.

Rule refused.

The KING v. The JUSTICES of NORFOLK.

Thursday, January 31.

THIS was a rule, calling on the Justices of Norfolk to Justices may

shew cause why a writ of Mandamus should not issue, commanding them to receive, enter, and hear an appeal at the next General Quarter Sessions of the Peace for county of Norfolk, against an order of two Justices, re

the

supersede their own order dently made. when improviOn the 20th August two Justices re

moved a panper from the parish of 4. to the parish of B. On the 5th of September the churchwardens of B. gave notice of appeal to the Sessions, to be holden on the 17th of October; on the 10th of October the Justices made an order, superseding their former order of removal, upon doubts of its validity, which supersedeas was served on the parish officers of B. who treated it as a nullity, and went to the Sessions, where the Justices refused to hear the appeal; and now this Court refused to grant a mundumus to the Sessions, to enter, hear, and determine it.