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1862. Erle, C.J., ruled that the letters would be admissible
for that purpose (a). Anything tending to show whether
Visciuntess ant wiH be relevant.
Bovill desired to put in the letter from Taylor to the defendant's attornies touching the mortgage.
<S/«?f, Serjt., objected thatTaylor ought to have been called.
Erle, C. J.— His authority, at all events, as Richards' attorney would be necessary, and the evidence will be doubtful: no such proof could be given.
A witness was called to contradict the plaintiff's denial that he had seen Richards so lately as last Thursday, i.e., that day week.
The plaintiff was recalled to rebut this contradiction.
At the close of the case,
Erle, C. J. (to the jury.)—The question is, whether Richards had authority from the defendant to pledge her credit for, and borrow, this money? It matters not what the plaintiff believed on the point, unless the defendant either gave Richards such authority, or allowed her to hold herself out to him as having it. The defendant's acceptance in blank would be authority to fill up the bill, but not necessarily to pledge the defendant's credit for the money received. The letters relied on to prove the authority are ambiguous and quite consistent with the case for the defendant, that Richards was to lend her the money, raising it by means of the bill. Of course a person who has signed a bill would be liable on it to any honest holder (and that explains a passage in one of the letters of the defendant, "the bill on which I am liable"). On the bill, of course, she would be liable (if the plaintiff took it fairly), only it happens that it cannot be sued on, and the
(a) Vide Basket! v. Tinihl, Vol. was admitted on his behalf; ante, II., p. 644. Taylor's letter to p. 47. Richards, shown to the plaintiff,
question is quite different as to the claim for money lent. 1862.
Upon that the question is one of authority to receive the
... . . Kino
money, and if you believe it was received by Richards as ».
the agent authorized by the defendant to receive it for her Viscountess and on her behalf, you must find for the plaintiff; if other- F°RnESwise, for the defendant. It is very important that Richards has not been produced as a witness for the plaintiff', although it was of the essence of his case to produce her, in order to prove her authority. You heard the evidence as to that (h).
Verdict for the defendant.
(a) Vide ante, p. 4G.
ALLEN v. ENGLAND.
F Spring Assizes.
IRST count, that the defendant, with workmen and A person using
others, broke and entered certain land of the plaintiff" and (1ae'n (H ^orl'
prostrated the nates and fences, and broke down railings, t,lan twenty
° ° years, under
Sec, and dug up the soil, &c, and felled trees, and rooted permission
. . , from the owner
up plants then there growing, &c. to do so, in
Third count, for that the plaintiff was seised of the land, ?TM!«to keep
'' 'it from tres
and he being so seised, the defendant, contrary to the passers, the
statute (a) in that behalf, with force and arms and with time to time a strong hand, broke and entered the said land of the fa^'andgiv-6 plaintiff, and then in a forcible manner put out and dis- in8 directions
'■ as to cutting of
seised the plaintiff thereof, and in a forcible manner and trees, &c.:— with a strong hand kept and continued the plaintiff so put had not got a out and disseised, &c. title so as to
7 enable him to
Pleas: inter alia, not possessed; and to the first count, sl,e a claimant
..._..,,,. under the
lib. ten. in one Cox, and justification by the defendant as owner for a
i ■ _ forcible entry.
6. To the third count, denying the plaintiff's seisin. Bovill, Raymond and Rosher, for the plaintiff.
(a) The statutes of Hen. 6 and of which another has acquired Rich. 2, as to forcible entry on land seisin.
VOL. III. E F.F.
1862. M. Chambers and Hance for the defendant.
The plaintiff stated that he had been possessed for upwards of twenty years of two houses and of the land in question, which lay at the rear of the gardens thereof, and extended to the rear of a house belonging to Cox. He had, he said, cultivated it ever since he first took possession of it—twenty-two years before the trespasses complained of. He admitted, on cross-examination, that Cox had purchased this (and other) land many years before he (the plaintiff) had taken possession of the land in question, and had planted some trees upon it. He admitted, also, that Cox used to come often, and had originally fenced the land, but had allowed him to make an opening from the plaintiff's land to his own and he had thrown it into his garden. During the last twenty-two years (he said) Cox had never interfered with, him in the possession of the land in any way, and he himself, and no one else, had, during that period, exercised acts of ownership over the land. It was proved that, during that time, he had planted and cut down trees, &c.
For the defendant, Cox was called, and stated that he had purchased the land in 1837, and had planted it with trees and fenced itround. The plaintiff had asked him to let him keep the boys out of it, and he had consented to his having the use of it so long as he did so. The witness had resided at a great distance from London, but used to come to town every year or two and visit the plaintiff and go on the land with him, and frequently told him what trees to lop and cut and what fences required repairs. [This was denied by the plaintiff] The witness stated, that the plaintiff, when he pulled the wall down between this land and his garden, had promised him to rebuild it whenever required. The witness had agreed to sell the land to the defendant, and put him in possession of it, when the defendant with workmen did the acts complained of.
Bovill, for the plaintiff, contended that, as the doctrine of adverse possession had been got rid of by the 2 & 3 Will. 4, c. 27 (a), twenty years' possession, use and enjoyment by the plaintiff was sufficient to give him a title, and that at all events, even if the land was the land of Cox, a forcible entry was a ground of action.
was created between the parties; and therefore, that unless the fact of tuck new tenancy were found by the jury, an ejectment brought by A., in 1839, was too late, inasmuch as, by the statute 3 & 4 Will. 4, c. 27, s. 7, his right of action first accrued at the expiration of one year after the commencement of the original tenancy at will, i. e. in the year 1818; Due d. Bennett v. Turner, 7 Mee. & VV. 226. Afterwards, however, held, on error in the Exchequer Chamber, that this entry amounted to a determination of the estate at will; Turner v. Doe d. Jiennelt, 9 Mee. & W. 643. In a later case, the defendant being in adverse possession of a hut and piece of land, the lord of the manor entered in the absence of the defendant, but in the presence of his family said he took possession in his own right, and he caused a stone to be taken from the hut, and a portion of the fence to be removed: held, that these acts were not sufficient to disturb the defendant's possession under the 3 & 4 Will. 4, c. 27, s. 10; Doe d. Huker v. Combes, 19 L. J., C. P. 306. It should seem that the safer ground on which to support the ruling in the principal case is, that there was no tenancy in the plaintiff, but merely an occupation as bailiff for the owner Cox, looking after the land for him and on his behalf.
(a) That is, in the sense of a possession with an intention to acquire and exercise dominion and ownership, such as would have been a disseisin by the old law (see notes to Doe v. Nepean, 5 B. & Ad. 86). But there must still be a possession different from that of the owner, and in that sense adverse; and that either if the legal possession has been in him, the actual occupation having been only in some one slse, as servant or bailiff* to him, or the hind has been vacant, the statute does not run. In the present case, of a piece of land which can only be occupied by user, the effect of the evidence was, that there was no indfptndent user, but only under the constant direction of the owner. A mere permission to occupy constitutes a tenancy at will (Doe A. Hall v. Wood, 14 M. & W. 682); and, assuming such a tenancy, the question would be, whether it had been terminated within the twenty years. Where the owner let B. into possession of a farm as tenant at will, and within ten years entered upon the land without 15.'s consent, and cut and carried away •tone therefrom: held, that this entry amounted to a determination of the estate at will; and that B. thenceforth became tenant at sufferance, until by agreement, express or implied, a new tenancy
M. Chambers, for the defendant, contended, that in reality the plaintiff had never been in legal possession at nil, although he had by permission had the use and occupation, his possession being in fact as bailiff or agent for Cox, to "look after the land for him," and keep it from trespassers, so that the legal possession had been always in Cox. And that even if the plaintiff had ever been in possession as tenant, his tenancy had been determined within the twenty years.
Erle, C. J.—It may be taken that the plaintiff had the beneficial occupation for more than twenty years, and if that will give him a title, I will give him leave to move. But, in my judgment, every time Cox put his foot on the land it was so far in his possession, that the statute would begin to run from the time when he was last upon it. The question then for the jury will be, whether they believe the evidence of Cox, that he gave the plaintiff leave to use the land on account of his taking care of it, and that he often went upon the land and gave directions as to cutting trees, &c. If so, they ought to find for the defendant.
The jury said they believed the evidence of Cox, and accordingly, on the above direction, found a
Verdict for the defendant (a).
(«) Bovill moved in C. P., in E. T., but look nothing.
SPANTON v. HINVES.
Lent Assizes. -p~.
The doctrine JJECLARATION on an indenture of demise, by which apparent ease- the defendant and one Elizabeth Taylor demised to the ment:," applied piajniiff a pjece 0f ground, situate on or near the line of
to all ways' ~ °'
marked on a the Blue Anchor Road, together with free right and way
plan shown by
lessor to lessee
before the execution of the lease, and also applied to a plan shown by cestui que trust of
lessor in his presence; and this held sufficient prima facie proof of possession by him, so as
to let in secondary evidence of the plan, after notice to him to produce it, he being defendant
in the action.