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1862. Erle, C.J., ruled that the letters would be admissible
for that purpose (a). Anything tending to show whether KING
Richards was lender or borrower on behalf of the defend
ss ant will be relevant. FORBES. It turned out, however, that none could be proved.
Bovill desired to put in the letter from Taylor to the defendant's attornies touching the mortgage.
Shee, Serjt., objected that Taylor 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.
Erle, C. J. (to the jury.)—The question is, whether
(a) Vide Basketl v. Tindul, Vol. was admitted on his behalf; ante, Il., p. 644. Taylor's letter to p. 47. Richards, shown to the plaintiff,
THE ISCOUNTESS FORBES.
question is quite different as to the claim for money lent. 1862.
Verdict for the defendant.
(a) Vide ante, p. 46.
ALLEN v. ENGLAND.
Spring Assizes. FIRST count, that the defendant, with work men and A person using
land as a garothers, broke and entered certain land of the plaintiff and a prostrated the gates and fences, and broke down railings, than twenty
years, under &c., 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,
td, it from tresand he being so seised, the defendant, contrary to the passers, the
owner from 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 lar
le land and givplaintiff, and then in a forcible manner put out and dis- ing directions
as to cutting of seised the plaintiff thereof, and in a forcible manner and trees, &c. :
Held, that he with a strong hand kept and continued the plaintiff so put had not got a out and disseised, &c.
title so as to
enable him to Pleas : inter alia, not possessed; and to the first count, sue a claimant
under the lib. ten. in one Cox, and justification by the defendant as owner for a
forcible entry. bis agent.
6. To the third count, denying the plaintiff's seisin. Bovill, Raymond and Rosher, for the plaintiff.
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, bim 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 bad purchased the land in 1837, and had planted it with trees and fenced it round. 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.
(a) That is, in the sense of a was created between the parties; possession with an intention to ac- and therefore, that unless the fact quire and exercise dominion and of such new tenancy were found by ownership, such as would have the jury, an ejectment brought by been a disseisin by the old law A., in 1839, was too late, inasmuch (see notes to Doe v. Nepean, 5 as, by the statute 3 & 4 Will. 4, B. & Ad. 86). But there must still c. 27, s. 7, his right of action first be a possession different from that accrued at the expiration of one of the owner, and in that sense vear after the commencement of adverse; and that either if the the original tenancy at will, i. e. in legal possession has been in him, the year 1818; Doe d. Bennett v. the actual occupation having been Turner, 7 Mee. & W. 226. Afteronly in some one slse, as servant wards, however, held, on error in or bailiff to him, or the land has the Exchequer Chamber, that this been vacant, the statute does not entry amounted to a determination run. In the present case, of a of the estate at will; Turner v. piece of land which can only be Doe d. Bennett, 9 Mee. & W. 643. occupied by user, the effect of the In a later case, the defendant being evidence was, that there was no in- in adverse possession of a hut and dependent user, but only under the piece of land, the lord of the manor constant direction of the owner. entered in the absence of the deA mere permission to occupy con- fendant, but in the presence of his stitutes a tenancy at will (Doe d. family said he took possession in Hall v. Wood, 14 M. & W. 682); his own right, and he caused a and, assuming such a tenancy, the stone to be taken from the hut, question would be, whether it had and a portion of the fence to be been terminated within the twenty removed: held, that these acts were years. Where the owner let B. not sufficient to disturb the defendinto possession of a farm as tenant ant's possession under the 3 & 4 at will, and within ten years en Will. 4, c. 27, s. 10; Doe d. Baker tered upon the land without B.'s v. Combes, 19 L. J., C. P. 306. It consent, and cut and carried away should seem that the safer ground stone therefrom: held, that this on which to support the ruling in entry amounted to a determination the principal case is, that there was of the estate at will; and that B. no tenancy in the plaintiff, but thenceforth became tenant at suf- merely an occupation as bailiff for ferance, until by agreement, ex. the owner Cox, looking after the press or implied, a new tenancy land for him and on his behalf.
M. Chambers, for the defendant, contended, that in reality the plaintiff had never been in legal possession at all, 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). (a) Bovill moved in C. P., in E.T., but took nothing.
SPANTON v. HINVES. Lent Assizes. The doctrine DECLARATION on an indenture of demise, by which of "open and
at ease the defendant and one Elizabeth Taylor demised to the ment," applied plaintiff a piece of 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 primâ 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.