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DEMURRER PAPER.
SPECIAL ARGUMENTS.

sion, or that right which the law admits and protects till a better right is proved, while the true right of possession, or that right which flows from the right of property itself, is in B. If, in the state of circumstances last supposed, C. be dispossessed by D., a Lor stranger, then C., having a right of possession as al against all mankind except B., may recover the posby session in ejectment from D. (3 Man. & R. 112, note); as for to permit D., who has no colour of title to retain -de- the possession against C., who has a primâ facie title any (see Doe v. Penfold, 8 Car. & P. 436, and Doe v. Birching more, 1 Per. & D. 448), would be not merely to disthe quiet the possession without advancing the ends of it, or justice, but possibly to do injustice, since the wrong y, dis- of C. may have ripened into a right, while the wrong been of D. is still recent and notorious. In the meantime extin- the title is really in B., who brings ejectment against the sta- C., and recovers by force of a right superior to that sion by which enabled C. to recover from D.-by force of the (Bras- right of property itself. But if B. should neglect to Hanks v. bring his ejectment within twenty years from the purchaser death of A., then the statute would at once bar his tipulation right of entry, and extinguish his right of property, ground of and thus, by a necessary consequence, confer upon C. last twenty an absolute right to the possession as against every ument, "Is possible claimant under the supposed settlement, for 34 do more the bar to the now sole remedy would close the door If, after non-against all but vexatious litigation; and the utter exresh payments tinction of the right would deprive the late owner of said to exist every chance of the resuscitation of his title by any rt, in giving other means." (1 Hayes Conv. 268). an opinion on to have been no s clauses having mas obviously no ht; and the lan

in The Incorpo289), Lord St. Leothen the remedy is al owner are extin," and are in effect ssession is a bar." In ve that he went beyond the meaning of provision for vesting the dispossessed late or thus states and illustute upon the title:right of possession and reduced to this-that n may be in one person right of property be in operty can exist no longer In connexion with a right present state of the law pposing that land is setmainder to B. in fee; that continues in possession for A. be still living, his right wht of possession is absolute A.; but if A. be dead within right of C. is defeasible, being r presumptive right of posses

We conceive that the distinguished writer, from whom we have taken the above observations, is in error when he says, that if C. is dispossessed by D. while the right of entry is really in B., C. may recover the possession in ejectment from D. This would be contrary to "the well-established rule, that the plaintiff in ejectment must recover by the strength of his own title, without any regard to the weakness of the defendants." (2 Wms. Saund. 111 (a)). Of course, C. might recover upon proving his prior possession, as upon a primâ facie title, if D. was unable to shew that the real title was elsewhere. (Allen v. Rivington, 2 Wms. Saund. 111; Doe v. Dyeball, Moo. & M. 346). The authorities cited by Mr. Hayes go no further. But though prior possession for any period, however short, may, if unexplained, be sufficient to establish a presumption of title, the defendant may rebut the presumption by shewing that the title is in another, as in Doe d. Crisp v. Baker (2 T. R. 749), where the lessor of the plaintiff entered into possession of a rectory house at Lady-day, 1787, under a lease by the rector, and remained in possession until the 17th March, 1788, when he was dispossessed by the defendant, who had no colour of title. On the trial, the defendant relied on the 13 Eliz. c. 20, which enacts, that "no lease of any benefice, &c. shall endure any longer than while the lessor shall be ordinarily resident, without absence above fourteen days in one year; but that every such lease, immediately upon such absence, shall cease and be void." The rector was wholly resident in another place. The Court, expressing their regret that such a possession as that of the defendant

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sion, or that right which the law admits and protects till a better right is proved, while the true right of possession, or that right which flows from the right of property itself, is in B. If, in the state of circumstances last supposed, C. be dispossessed by D., a stranger, then C., having a right of possession as against all mankind except B., may recover the possession in ejectment from D. (3 Man. & R. 112, note); for to permit D., who has no colour of title to retain the possession against C., who has a primâ facie title (see Doe v. Penfold, 8 Car. & P. 436, and Doe v. Birchmore, 1 Per. & D. 448), would be not merely to disquiet the possession without advancing the ends of justice, but possibly to do injustice, since the wrong of C. may have ripened into a right, while the wrong of D. is still recent and notorious. In the meantime the title is really in B., who brings ejectment against C., and recovers by force of a right superior to that which enabled C. to recover from D.-by force of the right of property itself. But if B. should neglect to bring his ejectment within twenty years from the death of A., then the statute would at once bar his right of entry, and extinguish his right of property, and thus, by a necessary consequence, confer upon C. an absolute right to the possession as against every possible claimant under the supposed settlement, for the bar to the now sole remedy would close the door against all but vexatious litigation; and the utter extinction of the right would deprive the late owner of every chance of the resuscitation of his title by any other means." (1 Hayes Conv. 268).

THE 34th section of the stat. 3 & 4 Will. 4, c. 27, for the limitation of actions and suits relating to real property, enlarged the effect of adverse possession, by making it operate to extinguish the title as well as the remedy of the once rightful owner. "At the determination of the period limited by this act to any person for making an entry or distress, or bringing any writ of quare impedit or other action or suit, the right and title of such person to the land, rent, or advowson, for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished." It follows that after the lapse of the statutory period, the late owner regaining possession by any means is not remitted to his former title. (Brassington v. Llewellyn, 27 L. J., Ex., 297). In Hanks v. Palling (6 El. & Bl. 668), however, where a purchaser of a fee-farm rent was held bound by a stipulation that he should make no objection on the ground of the non-payment of the rent during the last twenty years, Coleridge, J., asked, during the argument, "Is the rent itself extinguished? Does sect. 34 do more than extinguish the right to sue for it? If, after nonpayment for twenty years, a series of fresh payments were made, might not the old rent be said to exist without a fresh grant?" and the Court, in giving judgment, carefully avoided expressing an opinion on We conceive that the distinguished writer, from the effect of the statute. There seems to have been no whom we have taken the above observations, is in need of such caution; for the previous clauses having error when he says, that if C. is dispossessed by D. barred the remedy, the 34th section has obviously no while the right of entry is really in B., C. may recover other object than to extinguish the right; and the lan- the possession in ejectment from D. This would be guage is unambiguous. Accordingly, in The Incorpo- contrary to "the well-established rule, that the plainrated Society v. Richards 1 Dru. & W. 289), Lord St. Leo- tiff in ejectment must recover by the strength of his nards said, "Under the new act, when the remedy is own title, without any regard to the weakness of the barred, the right and title of the real owner are extin- defendants." (2 Wms. Saund. 111 (a)). Of course, guished." But he proceeded to add," and are in effect C. might recover upon proving his prior possession, as transferred to the person whose possession is a bar." In upon a primâ facie title, if D. was unable to shew that saying that, however, we conceive that he went be- the real title was elsewhere. (Allen v. Rivington, 2 yond the letter, and possibly beyond the meaning of Wms. Saund. 111; Doe v. Dyeball, Moo. & M. 346). the act, which has not made any provision for vesting The authorities cited by Mr. Hayes go no further. the title of which it deprives the dispossessed late But though prior possession for any period, however owner. A learned commentator thus states and illus-short, may, if unexplained, be sufficient to establish a trates the operation of the statute upon the title:- presumption of title, the defendant may rebut the "The distinction between the right of possession and presumption by shewing that the title is in another, the right of property is now reduced to this-that as in Doe d. Crisp v. Baker (2 T. R. 749), where the though the right of possession may be in one person lessor of the plaintiff entered into possession of a recas against strangers, and the right of property be in tory house at Lady-day, 1787, under a lease by the another, yet the right of property can exist no longer rector, and remained in possession until the 17th as a mere right, but only in connexion with a right March, 1788, when he was dispossessed by the defendof entry at least. The present state of the law ant, who had no colour of title. On the trial, the may be illustrated, by supposing that land is set- defendant relied on the 13 Eliz. c. 20, which enacts, tled upon A. for life, remainder to B. in fee; that that "no lease of any benefice, &c. shall endure any C. dispossesses A., and continues in possession for longer than while the lessor shall be ordinarily resitwenty years. Now, if A. be still living, his right dent, without absence above fourteen days in one year; is extinct, and the right of possession is absolute but that every such lease, immediately upon such abin C., for the life of A.; but if A. be dead within sence, shall cease and be void." The rector was wholly twenty years, then the right of C. is defeasible, being resident in another place. The Court, expressing their merely an apparent or presumptive right of posses-regret that such a possession as that of the defendant