c. 71, s. 4.

claimant himself (Carr v. Foster, 3 Q. B. 581; see note to sect. 6, 2 & 3 Will. 4, post). The mere intermission of the exercise of the right for more than a year, in the middle of the prescriptive period, is not necessarily an interruption of the right within the meaning of this section: such an intermission may be explained, and it is for the jury to say whether there has notwithstanding been a substantial enjoyment of the right for the requisite period (Ib.; see Plasterers' Co. v. Parish Clerks' Co., 6 Exch. 630; Hollins v. Verney, 13 Q. B. Div. 314).

Where it appeared that at a period much earlier than twenty years before the commencement of the action, a stream of water had flowed through the plaintiff's lands; but that there had been some interruption about twenty-two years before the action, and it was not till within nineteen years that the stream had again flowed constantly in its former course, and it was objected that there was a want of sufficient evidence to support the plaintiff's claim, Tindal, C. J., said, it would be very dangerous to hold that a party should lose his right in consequence of such an interruption; if such were the rule, the accident of a dry season, or other causes over which the party could have no control, might deprive him of a right established by the longest course of enjoyment (Hall v. Swift, 4 Bing. N. C. 381; see Carr v. Foster, 3 Q. B. 585, 586). The interruption may be caused by the act of a stranger, as well as by that of the person in whose land the easement is claimed (Davies v. Williams, 16 Q. B. 558). A fluctuating interruption was held not sufficient to prevent a right to light being acquired (Presland v. Bingham, 41 Ch. Div. 268, where the onus of proof as to interruptions was considered).

An interruption in the enjoyment may cause the acquisition of a qualified easement instead of altogether preventing the acquisition of any easement (Rolle v. Whyte, L. R. 3 Q. B. 286; see Brook v. Archer, 1868, W. N. 5). Although, under this section, no interruption will prevent a right from being acquired by twenty years' user, unless it has been acquiesced in for a whole year, yet an interruption for a shorter period may have the effect of showing that the enjoyment never was as of right, and thereby of preventing a right being acquired under the second section of this act (Eaton v. Swansea Co., 17 Q. B. 267; see Brook v. Archer, 1868, W. N. 5).

Where an obstruction to an ancient light had existed more than twelve Acquiescence months, but a promise had been given to remove the obstruction, and in interruptwelve months had not elapsed from the date of that promise before pro- tions. ceedings were taken, it was held, that there had not been such an interruption of the enjoyment as would deprive the owner of the light of his remedy (Gale v. Abbott, 10 W. R. 748). It was said by Kindersley, V.-C., that if the plaintiff had allowed twelve months to elapse without taking proceedings, even though he had continued to complain, that would have been a submission to the interruption within sect. 4 (Ib.) It has, however, been held that, in order to negative submission to the interruption to light, it is not necessary to bring an action or actively remove the obstruction (Glover v. Coleman, L. R. 10 C. P. 108). Non-acquiescence in an interruption is a question of fact for a jury (Bennison v. Cartwright, 5 B. & S. 1). An interruption acquiesced in for four years before action brought was held to bar the right (Tibury v. Silva, 45 Ch. D. 98). A person asserting an interruption must prove that some notice was given to the person interrupted of the person by whose authority the interruption was made; the mere existence of a physical obstruction is not sufficient notice (Seddon v. Bank of Bolton, 19 Ch. D. 462).

As to evidence of interruptions to the right of common, see Davies v. Williams, 16 Q. B. 558; Welcome v. Upton, 6 M. & W. 536. Where the lord attempted to stop the user of a common, the fact that some of the tenants yielded is not an interruption of the right within the meaning of this section, so as to bar the rights of freeholders, who as a body have never yielded to, or acquiesced in, the claim of the lord (Warwick v. Queen's College, 10 Eq. 105).

2 & 3 Will. 4, c. 71, s. 5.

In actions on the case the

allege his

the act.

In pleas to

V. PLEADINGS.

5. In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, claimant may without averring the existence of such right from time immeright genemorial, such general allegation shall still be deemed sufficient, rally as before and if the same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and in all pleadings to actions of trespass, and in all other pleadings wherein before the passing of this act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter hereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation (4).

trespass and other plead ings, where party used to allege his claim from time immemorial, the period mentioned in this act may be

alleged; and exceptions or

other matters

to be replied to specially.

Pleading before 2 & 3

Will. 4, c. 71.

Pleading

under 2 & 3

Will. 4, c. 71.

(k) Before the passing of the statute 2 & 3 Will. 4, c. 71, a prescription in a que estate must always have been laid in the person who was seised of the fee simple. A tenant for life, for years, or at will, or a copyholder, could not prescribe in this manner, by reason of the imbecility of their estates; for as prescription was deemed to be always beyond time of memory, it would have been absurd that those whose estates commenced within the memory of man should have prescribed for any thing. Therefore, a tenant for life must have prescribed under cover of the tenant in fee simple, and a copyholder under cover of his lord (6 Rep. 60a; Fortesc. 340). The uniform practice, in a plea justifying under a right of common, was to set out the title to the common specially, by showing a seisin in fee of the land to which the defendant claimed a right of common, either in himself or in some other person under whom he derived title, and then to prescribe in the que estate for the right of common, by showing the right to have been in the party seised in fee, and all those whose estate he had in the land from time immemorial (Grimstead v. Marlow, 4 T. R. 718; 1 Wms. Saund. 346, n. (1)). And if the defendant was lessee for years, he must have shown the seisin in his lessor, and prescribed in him; for if he laid the prescription in himself it was bad (Cro. Car. 599; 4 Rep. 38; A. G. v. Gauntlett, 3 Y. & Jer. 93).

By the above section, the claimant might allege his right generally ; and in pleading to actions of trespass, where previously it would have been necessary to have alleged the right to have existed from time immemorial, it was sufficient under the act to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed during the period provided by the act, and without claiming in the name of the owner of the fee.

The 5th section gives a new plea, by enacting, that in certain cases it shall be sufficient to allege the enjoyment as of right." If the parties

c. 71, s. 5.

choose to avail themselves of that provision, they must follow the very 2 & 3 Will. 4, words; and if they neglect to do so, the plea is bad (Stamford v. Dunbar, 13 M. & W. 827; Holford v. Hankinson, 5 Q. B. 584). For the meaning of "enjoyment as of right," see Tickle v. Brown, 4 Ad. & Ell. 369, quoted ante, p. 9.

In several cases decided upon this section it was held that under a Evidence general denial of the enjoyment as of right, evidence of unity of posses- admissible sion was admissible, inasmuch as such proof went to show that the enjoy- under a ment was not as of right (Onley v. Gardiner, 4 M. & W. 496; Clayton v. general Corby, 2 Q. B. 813; England v. Wall, 10 M. & W. 699; Clay v. Thack- denial of rah, 9 C. & P. 47).

In Beasly v. Clark (2 Bing. N. C. 709), Tindal, C. J., said, "Under a replication denying that the defendant had used the way for forty years as of right, and without interruption, the plaintiff is at liberty to show the character and description of the user and enjoyment of the way during any part of the time-as, that it was used by stealth, and in the absence of the occupier of the close, and without his knowledge; or that it was merely a precarious enjoyment by leave and licence, or any other circumstances which negative that it was an user or enjoyment under a claim of right; the words of the 5th section not inconsistent with the simple fact of enjoyment, being referable, as we understand the statute, to the fact of enjoyment as before stated in the act, viz., an enjoyment claimed and exercised as of right." So, under a general denial, evidence might be given of asking leave within the period (Monmouthshire Co. v. Harford, 1 C. M. & R. 614), or of an agreement commencing within the period (Tickle v. Brown, 4 Ad. & Ell. 383). As to whether a parol permission extending over the whole period could be shown, see Kinloch v. Nevile, 6 M. & W. 806.

enjoyment as of right.

It was said that where a defendant justified under an enjoyment for a Matters to be statutory period if the plaintiff relied on a licence covering the whole replied period, it must be replied specially (Tickle v. Brown, 4 Ad. & Ell. 369; specially. see Lowry v. Crowthers, 5 Ir. 698). It was decided that where a defendant pleaded an enjoyment for a statutory period, and the plaintiff relied on the existence of a life estate, &c. (See sect. 7), such life estate must be replied specially (Pye v. Mumford, 11 Q. B. 666).

The above section and the decisions under it must now be read in con- Pleading prenection with the rules of pleading established under the Jud. Acts, and scriptive so far as inconsistent therewith the section must be taken to have been rights under

repealed (Jud. Act, 1875, sects. 17, 21, 33). R. S. C., Ord. 19, provides the Jud. Acts. (r. 4) that every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies; and further (r. 15) that a party must raise by his pleading all matters which show the action or counterclaim not to be maintainable, and all such grounds of defence or reply as, if not raised, would be likely to take the opposite party by surprise; and further (r. 17), that in a defence or reply a general denial shall not be sufficient, but the party must deal specifically with each allegation of fact of which he does not admit the truth. Pleadings need not state inferences of law (Hanmer v. Flight, 24 W. R. 347).

The forms of pleading contained in the appendices to R. S. C.which are not to be slavishly adhered to (The Isis, 8 P. D. 228), but illustrate the meaning of the act (Turquand v. Fearon, 40 L. T. 545)-include a statement of claim in an action for obstruction of light (App. C. sect. 6, No. 10), which contains the simple allegation, "The plaintiff is the owner of a house in which are the following ancient lights, &c." Further, to the defence in an action for polluting water given in App. D. sect. 6, there is added the following note:-"If the defendant claims the right by prescription or otherwise to do what is complained of, he must say so, and must state the grounds of his claim, i. e., whether by prescription, grant, or what."

It would seem from Ord. 19, that the general allegations and denials which were sufficient within sect. 5 of 2 & 3 Will. 4, c. 71, are now in

S.

C

2 & 3 Will. 4, c. 71, s. 5.

New assignment.

Amendments.

Raising by defence different prescriptive rights.

sufficient. Accordingly, in an action to restrain the obstruction of an alleged private right of way, the plaintiff was bound in his pleading to give a short statement of the title by which he claimed, and whether by grant or by prescriptive user (Harris v. Jenkins, 22 Ch. D. 483; Farrell v. Coogan, 12 L. R. Ir. 14). Compare the case of a recent action for trespass, where the defendants pleaded that the locus in quo was a highway, and were ordered to amend so as to show the mode or title in or under which they claimed that it had become a highway, and were further ordered to give particulars of acts of dedication (Spedding v. Fitzpatrick, 38 Ch. Div. 410).

Under the R. S. C., Ord. 19, r. 18, a joinder of issue operates as a denial of every material allegation of facts in the defence or reply, as the case may be. Where a party justifies the acts complained of by an allegation of a prescriptive right, it is doubtful whether a mere joinder of issue will include a denial of the allegation that the acts were done in exercise of the right (See Bullen & Leake, Pleading, 354, 522, 4th ed.)

In a case before the Jud. Acts, a plea of a right of way for the occupiers of a close for twenty years, for horses, carts, waggons, and carriages, at their free will and pleasure, was traversed. Under the issue, the plaintiff was allowed to show that the defendant had a right of way for horses, carts, waggons, and carriages, for certain purposes only, and not for all, and was not compelled to new assign; and he could show that the purpose for which the defendant had used the road, and in respect of which the action was brought, was not one of those to which the right extended (Cowling v. Higginson, 4 M. & W. 245). In an action of trespass, defendant justified as having acted in exercise of a right of way for foot passengers. Plaintiff taking issue, gave evidence at the trial that defendant had used the alleged pathway with horses and carts. Held, that the excessive user should have been new assigned (Lane v. Hone, I. R. 6 C. L. 232). What was formerly alleged by way of new assignment is now introduced by amendment of claim or by reply (R. S. C., Ord. 23, r. 6).

According to the practice before the Jud. Acts, it was a rule that in cases of prescription the allegation must be proved as laid (2 Roll. Abr. 706; 5 Rep. 79; 4 Rep. 29 b; 1 Campb. 313; see Brook v. Willet, 2 H. Bl. 224). It was not material that a party proved a larger right than he alleged (Cro. Eliz. 722; 1 Taunt. 142; West v. Andrews, 1 B. & C. 77; Bailey v. Appleyard, 8 Ad. & Ell. 167; Manifold v. Pennington, 4 B. & Cr. 161; Pigott v. Bayley, 6 B. & C. 16); but if he alleged a larger right than he proved, he could not amend (Drewell v. Towler, 3 B. & Ad. 735; see Ricketts v. Salway, 2 B. & Ald. 363; Beadsworth v. Torkington, 1 Q. B. 782; Brunton v. Hall, Ib. 792). If the allegation of right was divisible, the plaintiff was entitled to a limited verdict for a divisible part of the right alleged, though he failed to prove the residue (Giles v. Groves, 12 Q. B. 721).

Since the Jud. Acts, a much wider liberty of amendment has been introduced. R. S. C., Ord. 28, r. 1, provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. And this wider liberty of amendment has been allowed in pleading prescriptive rights (Budding v. Murdoch, 1 Ch. D. 42; Laird v. Briggs, 19 Ch. D. 22; Bourke v. Alexandra Co., 1877, W. N. 30).

Since the passing of 2 & 3 Will. 4, c. 71, it has been frequently considered advisable to plead together in the same case pleas of prescription at common law of a non-existing grant, and of prescription by the statute (Bailey v. Stevens, 12 C. B. N. S. 91), and in the case of pleas under the statute, prescription both for the longer and shorter periods mentioned in sects. 1 and 2 (Stamford v. Dunbar, 13 M. & W. 827); the reason being to meet a possible difficulty arising from failure of proof by reason of interruption, &c. (See Welcome v. Upton, 5 M. & W. 398; 6 M. & W. 536; Hollins v. Verney, 13 Q. B. Div. 304, and cases quoted in the judgment).

VI. LESS PERIOD NOT TO BE ALLOWED.

2 & 3 Will. 4,

c. 71, s. 6.

allowed in

6. In the several cases mentioned in and provided for by Restricting this act, no presumption shall be allowed or made in favour or the presumpsupport of any claim, upon proof of the exercise or enjoyment tion to be of the right or matter claimed for any less period of time or support of number of years than for such period or number mentioned in claims herein this act as may be applicable to the case and to the nature of provided for. the claim ().

(7) This section forbids a presumption in favour of a claim to be drawn from a less period of enjoyment than that prescribed by the statute (Bright v. Walker, 1 C. M. & R. 222; ante, p. 8). The meaning of this section seems to be that no presumption or inference in support of the claim shall be derived from the bare fact of user or enjoyment for less than the prescribed number of years; but when there are other circumstances in addition, the statute does not take away from the fact of enjoyment for a shorter period its natural weight or evidence, so as to preclude a jury from taking it along with other circumstances into consideration as evidence of a grant (Hanmer v. Chance, 4 D. J. & S. 626). The "interruption" which defeats a prescriptive right under this statute is an adverse obstruction, not a mere discontinuance of user by the claimant himself. In a case under the 1st section, if proof be given of a right of enjoyment at the time of action brought, and thirty years before, but disused during any part of the intermediate time, it is always a question for the jury whether at that time the right had ceased or was still substantially enjoyed. The inference to be drawn from the facts proved on this point is not a presumption within the 6th section. Where a commoner had ceased to use the common during two years of the thirty, having no commonable cattle at the time, but had used it before and after it was held that a jury were justified in finding a continued enjoyment of the right during thirty years (Carr v. Foster, 3 Q. B. 581; see Hall v. Swift, 4 Bing. N. C. 381; Dare v. Heathcote, 25 L. J. Ex. 245).

VII. DISABILITIES.

disabilities.

7. Provided also, That the time during which any person Proviso for otherwise capable of resisting any claim to any of the matters persons under before mentioned shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible (m).

(m) It is the intention of the act that an enjoyment of thirty years, or twenty years, shall be of no avail against an idiot or other person labouring under incapacity, but that one of sixty or forty years shall confer an absolute title, even against parties under disabilities (See Wright v. Williams, 1 M. & W. 77). This section, it is to be observed, in express terms excludes the time that the person (who is capable of resisting the claim) is tenant for life. During the period of a tenancy for life the exercise of an easement will not affect the fee; in order to do that there