Bionary estate and interest, &c., heretofore, to wit, on 1st June, 1851, and whilst the same was so in the possession and occupation of J. Soper, and whilst plaintiff was so interested as aforesaid, injuriously, wrongfully, &c., against the will of plaintiff, greatly and permanently encroached upon, encumbered and obstructed the said way, to wit, by placing blocks of stone, &c., and so continued such obstruction from thence hitherto, whereby the reversion of plaintiff is greatly and permanently injured and lessened in value.

Pleas 1. Not guilty. Issue thereon.

2. That plaintiff, at the said time when, &c., did not of right have or use, possess or enjoy the said way, in manner, &c. Issue thereon. On the trial, before Erle, J., at the last Devonshire Spring Assizes, the plaintiff proved the interruption, and gave evidence to show a user of the way for twenty years. It appeared that the land, over which the right of way was claimed, had been demised in 1831 for a term of fourteen years, and again, in 1838, by a fresh lease, for a term of eight years, ending in 1846. No resistance had been made to the user at any time during or after the determination of the leases. The learned Judge, as to the user, left it to the jury to say whether or not the plaintiff had enjoyed the right of way from time immemorial or for twenty years, as of right; and, as to the twenty years, he told them that the fact of such lease having existed during part of that period would not defeat the plaintiff's right of user, under stat. *2 & 3 W. 4, c. 71. The jury found that there had been a twenty years' user, and gave a verdict for the plaintiff.

[*570

Kinglake, Serjt., in last Easter Term, obtained a rule Nisi for a new trial, on the ground of misdirection.

Crowder and Collier now showed cause.-The question is whether, under stat. 2 & 3 W. 4, c. 71, in establishing a user for twenty years as against the reversioner of the servient tenement, the time during which such tenement was on lease for any term of more than three years is to be excluded from the computation of the twenty years' user. This point has not been raised before. It depends upon the construction of sects. 7 and 8 of the Act, taken in connexion with sect. 2. The object of sect. 2 is to give to a user of twenty years the same effect as that of a custom, a prescription or a grant, but providing that the claim by such user shall not be defeasible by proof of origin at some time prior to the twenty years; and to make the right arising from a user of forty years absolutely indefeasible, except where such right has been enjoyed "by some consent or agreement expressly given or made for that purpose by deed or writing." Sect. 7 provides, among other things, that the time during which any person, otherwise capable of resisting any claim to a right of way, shall have been or shall be a tenant for life shall be excluded in the computation of the "periods herein before mentioned," except in cases where the right or claim is by the Act declared to be

absolute and indefeasible. Sect. 8 provides that when any land or water upon, over, or from which any such way or other convenient (a) *watercourse or use of water shall have been or shall be enjoyed *571] or derived hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof." Now, first, even supposing that the intention of sect. 8 was to exclude a tenancy for years in the computation also of an user for only twenty years, no such exclusion could be made here, inasmuch as the reversioner has not resisted the claim within the three years directed by the statute. But, secondly, sect. 8 does not admit of such a construction. The only authority in support of it is an observation of Parke, B., in Bright v. Walker, 1 C. M. & R. 211,† S. C. 4 Tyr. 502. But that was an obiter dictum only; and no reason is given for the position laid down. [CROMPTON, J.-The learned Judge there said that a life tenancy must, à fortiori, be excluded from an user of twenty years: I should rather have thought the intention of the statute had been to control only that description of user which is the nearest to being indefeasible.] That would appear to be the right construction. In Bright v. Walker moreover, the tenancy which was excluded was a life tenancy, not a tenancy for years. And the tenancy had continued up to the time of the *obstruction for which the action was brought: here it expired three years before.

*572]

Kinglake, Serjt., and Montague Smith, contrà.-There can be no doubt as to the construction of sect. 7, which expressly directs a life tenancy to be excluded in the computation of any of the periods thereinbefore mentioned (one of which is a twenty years' user of a right of way) except where the right or claim is by the Act declared to be indefeasible, one of which exceptions is a forty years' user of a right of way. As regards that exception, sect. 8 provides that a life tenancy is to be excluded in the computation of it only if the claim be resisted by the reversioner within three years after the determination of the term. The intention, therefore, clearly is to exclude a life tenancy absolutely in the case of a twenty years' user, and conditionally in the case of a forty years' user. That is the view taken by the Court of Exchequer in Wright v. Williams, 1 M. & W. 100,† S. C. Tyr. & G. 375. And Wightman, J., in Pye v. Mumford, 11 Q. B. 666, 672 (E. C. L. R. vol. 63), appeared to be of opinion that the construction in favour of the

(a) Probably a misprint for "convenience," or "easement." See Wright v. Williams, Tyr. & Gra. 375, 390; Gale on Easements, p. 103 (Ed. 2).

exclusion of a tenancy for a term of years from the computation of a thirty years' user, though not expressly directed by the Act, was cor rect. The statute declares that a user for twenty years may still be defeated by any of the old methods except proof of enjoyment for a less period than from time immemorial: it may therefore be defeated, as before, by showing that the owner of the servient tenement had not the fee during the whole of the twenty years. The observations of Wightman, J., in Pye v. Mumford are in accordance with this [*573 view. [Lord CAMPBELL, C. J.-Would an old prescriptive right Le so defeated?] If there had been a succession of leases, and no evidence of user before such succession, the jury could not, before the Act, have been directed to presume the prescriptive right against the owner in fee. [CROMPTON, J.-Suppose the owner of the inheritance had consented by parol.] It has been held that proof of a written parol license will defeat a forty years' user, and proof of a mere verbal license a twenty years' user; Tickle v. Brown, 4 A. & E. 369 (E. C. L. R. vol. 31), Beasley v. Clarke, 2 New Ca. 705 (E. C. L. R. vol. 29). [Lord CAMPBELL, C. J.-Assuming that sect. 8 applies to a user for twenty years, what answer is there to the objection that no resistance has been made by the reversioner, in the present case, within three years after the determination of the lease?] That condition in sect. 8 applies only to the case of a forty years' user, and was introduced for the purpose of fixing a time within which the absolute right might be defeated.

Lord CAMPBELL, C. J.-I am of opinion that the plaintiff is entitled to our judgment. I think that there was evidence from which the jury might find that he was entitled to claim a right of way under sect. 2 of stat. 2 & 3 W. 4, c. 71. I do not say that the evidence was conclusive; but it was sufficient to justify their finding; and that finding ought not to be disturbed unless the plaintiff's claim is defeated by sect. 8. I am of opinion that it is not. The period during which the land over which the right of way is claimed has been *leased for a term exceed[*574 ing three years is not, under that section, to be excluded from the computation of a twenty years' enjoyment, though it is, no doubt, to be excluded from the computation of an enjoyment for forty years. Sect. 7 excludes certain times, including that of a tenancy for life, but not that of a tenancy for years, from the computation of the "periods" therein beforementioned;" and a twenty years' enjoyment is one of those periods. But sect. 8 provides for the exclusion of certain other times, among which is a tenancy of more than three years, not from the periods thereinbefore mentioned, but from one particular period only, expressly mentioned, namely, that of an enjoyment for forty years. It is clear, therefore, that it was not intended to exclude them from the computation of an enjoyment for twenty years. Great reliance was placed upon Bright v. Walker, 1 C. M. & R. 211,† S. C. 4 Tyr. 502;

but, on examination into that case, it appears that there was no necessity for the Court to give any opinion as to the effect of sect. 8; for the right of way there claimed was clearly destroyed, under sect. 7, by reason of a tenancy for life. But, even supposing sect. 8 to apply to a twenty years' enjoyment as well as to an enjoyment for forty years, the right by enjoyment in the present case is not destroyed, inasmuch as the condition, that the claim shall be resisted by the reversioner within three years after the determination of the tenancy for years, has not been complied with.

COLERIDGE, J.-Putting out of consideration sects. 7 and 8, there was clearly evidence for the jury of a twenty years' user, as of *575] right, before the commencement of the action. That being so, we must look to sects. 7 and 8 to see whether that period of twenty years is to be shortened by excluding the period during which the tenancy for years existed. Now, sect. 7 applies in terms to a twenty years' enjoyment, for the purpose, not of defeating the right, but of excluding certain periods from the computation of the twenty years. But a tenancy for years is not one of those periods, although a life tenancy is. Then, sect. 8 does exclude a tenancy for years, but excludes it only from the computation of a forty years' enjoyment. There being one section applicable to a twenty years' enjoyment, and another expressly confined to a forty years' enjoyment, it would be unreasonable to import the latter into the former, and make sect. 8 apply to a twenty years enjoyment also. But, even if it did so apply, the tenancy for years cannot be excluded in the present case, the reversioner having made no resistance within three years from the determination of the

term.

ERLE, J.-If this case had arisen before the statute, there would have been good evidence to go to the jury of a user as of right for twenty years, notwithstanding the existence of the tenancy for years. And the question is still to be left to the jury in the same way; for the statute makes no difference in the various modes of defeating the user, except as it provides that it shall not be defeated by proof of origin at some time prior to the twenty years. The question then arises whether, under sect. 8, the tenancy for years is to be excluded from the computation of twenty years' enjoyment. That section applies expressly to the computation of an *enjoyment for forty years; and it would *576] be contrary to all rules of construction to hold that it applies also to the computation of an enjoyment for twenty years. The only possible ground for such a conclusion is found in Bright v. Walker, 1 C. M. & R. 211,† S. C. 4 Tyr. 502. But there the question was as to the exclusion of a tenancy for life, and the Court was clearly right in holding that such tenancy must be excluded from the computation of a twenty years' enjoyment. It is so excluded under sect. 7; and I de not see that its exclusion is made more clear by sect. 8. But I do

not think the learned Judge ever meant to say that a tenancy for years must be excluded from the computation of an enjoyment for twenty years.(a) Rule discharged.

(a) Crompton, J., was absent.

The QUEEN v. AVERY. May 26.

Under stat. 5 & 6 W. 4, c. 76, s. 32, which requires the voting paper at an election of borough councillors to be signed with the name of the burgess voting, the party's usual signature is sufficient; and it is no valid objection that the Christian name is denoted only by an initial. Such paper is correct according to sect. 32, if the place in respect of which the party votes, and for which he appears to be rated on the burgess roll, be described according to its actual situation, though the description may vary in terms from that on the burgess roll.

QUO WARRANTO for exercising the office of a councillor of the borough of Barnstaple. Plea, that, defendant being a person qualified, and a candidate, for the said office at an election of three councillors held on November 1st, 1851, it was then ascertained that he was one of the three persons having the greatest number of votes; and he was deemed to be and was then and there *elected, &c.; and that his name [*577 was published accordingly, and he subscribed the declaration, &c.: verification. Replication, denying that it was ascertained, &c., in manner and form, &c.: or that defendant was one of the three persons having the greatest number of votes, in manner, &c.: or that he was elected a councillor, &c., in manner, &c. Issues to the country were joined on these several traverses.

On the trial before Erle, J., at the Devonshire Spring assizes in this year, it appeared that, at the close of the election, Avery stood third upon the poll, and one King, fourth, the numbers declared being for Avery 282, and for King 274; but it was contended that King had more legal votes than Avery. The following among other objections to the votes given for Avery were relied upon for the prosecution.

1. That the Christian name or names of the voter were designated on the voting paper by initials only; as "J. S. Clay;" "A. T. Powning." The Burgess rell contained the names "John Sherard Clay" and "Ambrose Toop Powning." Erle, J., referring to Regina v. Hartlepool, 2 Lowndes, M. & P. 666, held these signatures sufficient.

2. That a voter who resided in a portion of Pilton parish, forming part of the North ward, signed his voting paper "John Cann, Pilton;" whereas in the Burgess roll of voters for the North ward his rated property was described (under the head of " Pilton") as follows: "Cann, John. House: In the Street." Another voter, whose rated property was similarly described on the roll, signed himself "James Cooksley, Pilton Street." It appeared that Pilton contained more than one street,