have been held only that a mere entry consistent with the continuance of the tenant's possession, as by taking stone, would not interrupt the possession.

LORD CAMPBELL, Ch. J. Sect. 10 enacts: "that no person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon:" the proceedings of the overseers seem to have gone far beyond a "mere " entry.)

The defendants, upon that view, should have insisted upon the jury being asked whether the plaintiff had been put out of possession. Nothing now appears beyond a hostile assertion of right.

(LORD CAMPBELL, Ch. J.: If there were any right of entry created by the proceedings in 1839, we must hold the entry now in question to have been made in pursuance of such right, rather than of an earlier one, according to our decision in Keyse v. Powell (1).)

The tenancy at will was determined at the end of the one year from its commencement, by the express words of sect. 7; there could not, therefore, be a determination afterwards: and so the enactment seems to be understood by Lord ST. LEONARDS, in Sugden's Vendors and Purchasers, p. 622 (11th ed.), Ch. XI. Sect. V. §§ 52, 53, 54.

(CROMPTON, J.: That is, if there be no express determination of the will, the Legislature construes it to have been determined at the end of the first year.)

In Doe d. Dayman v. Moore (2) it was held that the twenty-one years' possession commencing with a tenancy at wil might be insisted upon, though the land had, within twenty years, been expressly devised for life by the landlord to the wife of the tenant at will, who had recognised the devise by receiving an annuity bequeathed thereby to his wife.

(LORD CAMPBELL, Ch. J.: *In that case, and in Doe d. Goody v. Carter (3), the landlord had no possession at all during the twentyone years.)

(1) Ante, pp. 464, 475.

(2) 72 R. R. 374 (9 Q. B. 555).

(3) 72 R. R. 472 (9 Q. B. 863).

RANDALL

v.

STEVENS.

[ *647 ]

66

In Garrard v. Tuck (1) the COURT said that the object of sect. 7 obviously is, to fix a definite period after the commencement of a tenancy at will, beyond which the tenancy shall not be presumed to have had a continuance." Sect. 8 is in pari materiâ. There the time runs from the determination of the first year or the last receipt of rent," which shall last happen;" from which express enactment it may fairly be inferred that, in sect. 7, where there are no such words, the time was to run from the alternative which should first happen. The two sections seem to be so understood in Sugden's Vend. and Purch. 628 (11th ed.), Ch. XI. Sect. V. § 72, and in Sugden's Essay on the New Statutes, &c., p. 54 et seq. Doe d. Evans v. Page (2) may be cited on the other side: but that case shows only that sect. 7 does not apply when the tenancy at will has ceased before the statute passed: but it seems to be there understood, by the Court, that, in the case of tenancies at will not determined till after, the right is barred by twenty-one years, reckoned from the commencement of the tenancy: and that is the present case. The same explanation applies to Doe d. Birmingham Canal Company v. Bold (3). In Doe d. Jukes v. Sumner (4) the Court of Exchequer held that sect. 8 applies to tenancies created before the Act and existing at the time of its passing.

Keating and Phipson, contra :

*

The tenancy at will existed, in this case, at the time of the passing of the statute: after that time, and before twenty-one years had elapsed from the commencement of the tenancy, the parish officers entered upon the plaintiff. Upon such entry they were possessed, and the plaintiff was dispossessed: from that time. a new state of things commenced: while they were in possession the defendant was a mere stranger.

(LORD CAMPBELL, Ch. J.: He clearly would then be on the land only as a trespasser.)

Reliance is placed on Doe d. Bennett v. Turner (5). But all that was necessary for the decision of that case was that the tenancy at will was there determined, and that the time was interrupted if a fresh tenancy was created. The dictum, that if, at the determina

(1) 79 R. R. 475 (8 C. B. 231, 251).

(2) 5 Q. B. 767.

(3) 75 R. R. 304 (11 Q. B. 127).
(4) 69 R. R. 653 (14 M. & W. 39).
(5) 56 R. R. 692 (7 M. & W. 226).

tion of the tenancy at will, the tenant had continued to occupy as
tenant at sufferance the entry would have been barred, was not
necessary to the case: nor was that doctrine acted upon in the
court of error: Turner v. Doe d. Bennett (1). But, if the effect of
the decision in Doe d. Bennett v. Turner (2) be as contended on the
other side, the case is overruled by Doe d. Evans v. Page (3). In
that case a tenancy at will was followed by what, before the
statute, would have been an adverse possession; but the action,
being brought within twenty years of the expiration of the tenancy
at will, was held not to be barred by the lapse of twenty-one years
from the commencement of such tenancy at will. It is true that
the judgment of the COURT rested upon their view that sect. 7 was
not retrospective, and the fact that the tenancy at will expired
before the statute passed. But that was also the case in Doe
d. Bennett v. Turner (2). *The latest case is Doe d. Birmingham
Canal Company v. Bold (4), which affirmed Doe d. Evans v. Page (3),
though Doe d. Bennett v. Turner (2) was cited. Doe d. Goody v.
Carter (5) is no otherwise applicable to this case than as apparently
recognising the dictum in Doe d. Bennett v. Turner (2): and there
Doe d. Evans v. Page (3) was not cited. But in no case has there
been an actual taking of possession, as here. It is said that the
effect of this ought to have been left to the jury: but the act was
unequivocal; and there was no dispute as to its effect. The
reasonable view is that, from the time of the owner resuming
possession, though he parts with it again, a fresh period of time
begins to run; which, if the possession of the person whom he
suffers to occupy were continued uninterruptedly for twenty years,
would, according to the expression in Sugden's Vend. and Pur. 622
(11th ed.), Ch. XI. Sect. V. § 54, "vest the fee simple in the tenant
at will, for the remedy of the owner will not only be barred, but
his estate extinguished;" and, as said by PARKE, B. in Doe d. Jukes
v. Sumner (6), “make a Parliamentary conveyance of the land to
the person in possession after that period of twenty years has
elapsed." But the Legislature can never have intended to prevent
the owner from taking steps during the twenty years to prevent
such a title being gained against him.

(1) 60 R. R. 850 (9 M. & W. 643). (2) 56 R. R. 692 (7 M. & W. 226). (3) 5 Q. B. 767.

(4) 79 R. R. 475 (11 Q. B. 127).

Cur. adv. vult.

(5) 72 R. R. 472 (9 Q. B. 863): see Doe d. Carter v. Barnard, 78 R. R. 564 (13 Q. B. 945).

(6) 69 R. R. 653 (14 M. & W. 42).

RANDALL

v.

STEVENS.

[648]

RANDALL

2. STEVENS.

[649]

[ *650 ]

LORD CAMPBELL, Ch. J. now delivered the judgment of the Court: The question for our determination in this case is, whether, on the 24th day of July, 1852, a certain cottage in the pleadings mentioned had ceased to be the property of the parish officers to whom it had belonged. The material facts were: His Lordship then stated them, as ante, p. 738. And the defendants pleaded

that the cottage was not the plaintiff's.

66

Independently of any decision, it appears quite clear to us that, according to the just construction of stat. 3 & 4 Will. IV. c. 27, the title of the overseers was not barred. By sect. 2 of that statute, it is enacted that no person shall make an entry" to recover any land" "but within twenty years next after the time at which the right to make such entry" "shall have first accrued." Within twenty years next after the time when such right first accrued the entry may be made. Now it is not disputed that in April, 1839, the overseers determined the tenancy at will, which had subsisted since Whitsuntide, 1818, before the Statute of Limitations had run : and they were then actually in possession of the cottage. When the plaintiff again took possession of the cottage, a right to make an entry upon it accrued to them: and we conceive that they were entitled to enter at any time within twenty years from that day. It is admitted that they might have brought an ejectment the following day, and at any time before twenty-one years had expired from Whitsuntide, 1818. But how could the right of entry, which subsisted from April, 1839, to Whitsuntide, 1839, be then barred ? The right of entry in respect of which they entered in July, 1852, first accrued in April, 1839, and would not be barred till April, 1859.

The nature of the holding subsequent to the time when the plaintiff was turned out of possession in April, *1839, seems for this purpose to be wholly immaterial. Whether the plaintiff during the interval was tenant at will, or tenant at sufferance, or a mere trespasser, nothing appears to abridge the period of twenty years during which the right of entry might be exercised from the time when it first accrued.

The plaintiff's counsel rely upon the 7th section of the statute, which enacts" that when any person shall be in possession" "as tenant at will, the right of the person entitled subject thereto" "shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall

be deemed to have determined." And it is contended that here the tenancy shall be deemed to have expired at Whitsuntide, 1819. Another construction of the statute is, that this determination of the tenancy at the expiration of one year after its commencement is only to be deemed to have taken place where there has been no actual determination of the tenancy by the landlord before the Statute of Limitations has run (1). If there has been no actual determination of the tenancy by the landlord, and the tenant has continued in possession twenty-one years or upwards, the tenancy in point of law shall be deemed to have determined at the expiration of one year next after the commencement of such tenancy. After the expiration of twenty-one years of a continuous tenancy at will, if the landlord were to enter, no subsequent right of entry having accrued to him, this entry would not be within twenty years next after the time at which the right to make such entry first accrued, and would therefore be unlawful: according to sect. 34 of the statute his right *of entry would be "extinguished." It is difficult to contend that, universally, every tenancy at will shall be deemed to have expired by operation of law at the expiration of one year after its commencement and the more reasonable construction to put upon the enactment might have been, that, where there has been no actual determination of the tenancy by act of the parties within twenty-one years, it shall be deemed to have determined at the expiration of the first year; making an occupation of twenty-one years without payment of rent a bar: but, where there has been an actual determination of the tenancy within that period, whereby a new right of entry accrues, this clause of the statute shall have no operation, "such tenancy" being supposed by the statute to continue till the right of entry is barred.

In the present case there was an actual determination of the tenancy by the act of the overseers in April, 1839, when they took possession and the right of entry accrued to them under which they entered, as they lawfully might, in July, 1852. What happened subsequently to the time when the plaintiff resumed the occupation of the cottage in April, 1839, seems to be wholly immaterial, so that the overseers had not in the interval done any thing to prejudice the right of entry which then vested in them. If he had never resumed the possession of the cottage after he was dispossessed in April, 1839, could it have been said that, when Whitsuntide, 1839, arrived, he had acquired the fee simple in the cottage by reason of (1) See Day v. D1y (1871) L. R. 3 P. C. 751, 761, 40 L. J. P. C. 35.—A. C.

RANDALL

r.

STEVENS

[ *651 ]