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![handle is hein.slavery/ssactsengr0280 and id is 1 raw text is: SANTOS V. ILLIDGE
scription. The only methods of legally stopping a highway are, either by the old
writ of ad quod damnum, or by proceedings before magistrates under the statute.
The true question, therefore, seems to be this,-was there any reasonable evidence
of a dedication of the alleged new way to the public by the owner of the soil ?
I collect from the evidence that the material facts were these. The old road was
an antient and undoubted highway, and was illegally stopped about the year 1813.
The public in consequence deviated on to [859] the adjoining land, which was an
open down. The deviation was over various parts of the down: but the principal
track was nearly parallel with the old road. The ownership of the soil both of the
old road and new tracks was at the tine of the deviation in the same person. About
the year 1832, the principal track, called at the trial the new road, was stopped by
the occupier building a wall thereon. For the last, twenty-eight years that track has
never been used by the public as a road. But, about the year 1857, the old road was
re-opened to the public.
The contention of the defendant throughout the trial had been that the principal
track of deviation was no deviation at all, but was the true antient road. This con-
tention the jury decided against him. But the learned counsel for the defendant in
his summing-up to the jury at the close of the case for the first time raised the
further point, that, the deviating track, even if not the antient road, had been dedi-
cated to the public, and become a second highway, parallel to the old one.
The facts, however, as above stated, do not appear to me to amount to any reason-
able evidence of a dedication to the public.
It was plain that the public had never used the deviating track, except when they
were shut out from the true antient highway. The public user, therefore, was refer-
able t6 the right of the public to deviate on to the adjoining land whenever the owner
of the soil illegally stops a highway : Asr v. French, 2 Show. 28. And it further
appeared that the deviation was not confined to a single defined track, but was at
least occasionally exercised widely over the down. It is difficult to suppose that the
owner of the soil could have assented to so extensive a dedication as such an user
would imply. Lastly, the deviating track [860] had been built tp and been disused
for twenty-eight years.
These facts seem to me very consistent with the exercise of a public right of
deviation during the temporary obstruction of a road, but inconsistent with the
permanent dedication to the public of a new way, whether parallel to the old road or
straggling over the down,-the old road still continuing to exist in point of law.
But, assuming the facts to be as consistent with the defendant's hypothesis as
with the plaintiff's hypothesis, yet there is still no balance of probability in favour of
the defendant's hypothesis. And, if that be so, the burthen of proof lying on the
defendant, there is no evidence to be left to the jury.
Lastly, even assuming some evidence of a new road to exist, yet it is at most
such a mere scintilla of evidence, that, if the jury had found a verdict for the defen-
dant upon it, the verdict would, I think, certainly have been set aside as against the
weight of evidence. If so, there can be no new trial : see the observations of the
court of Exchequer Chamber in Avery v. Bowden, 6 Ellis & B. 972.
For these reasons, I am of opinion that the rule for a new trial must be discharged.
Rule discharged.
[861] IN THE EXCHEQUER CHAMBER.
TRINITY VACATION, 23 & 24 VICTORIA.
SANTOS V. ILLIDGE AND OTHERS. July 9th, 1860.
[S. C. 29 L. J. C. P. 348; 3 L. T. 155; 6 Jur. N. S. 348; 8 W. R. 705. See
Kaufman v. Gerson, [1903] 2 K. B. 117 ; [1904] 1 K. B. 591.]
The defendants, British subjects resident and domiciled in Great Britain, being
possessed of certain slaves in the Brazils, where the purchase and holding of slaves
is lawful, contracted with the plaintiff a Brazilian subject domiciled in the Brazils,
to sell them to him to be used and employed there. Some of the slaves had been
purchased by the defendants in the Brazils after the passing of the 5 G. 4, c. 113,
1404
8 0. D. (N. S.) 859.](ViewImageLocal?handle=hein.slavery/ssactsengr0280&div=1&collection=&method=preview&ext=.png&size=3)