EASEMENTS-continued.

(Rex v. Roswell, 2 Salk. 459); but the abatement generally involves a trespass quare clausum fregit (Arnold v. Jefferson, Holt, 498); and is for other reasons also to be discouraged. Hyne v. Graham, 1 H. & C. 598.

For the maintenance of an action for the disturbance of an easement, as also of a natural right, it is essential that actual damage should have been sustained (Bonomi v. Backhouse, 9 H. L. C. 503), unless where the disturbance amounts to or involves a trespass, in which latter case the law presumes the damage (Smith v. Thackerah, L. R. 1 C. P. 564). And where the disturbance may be regarded as an injury to the right of easement itself, and the repetition of which injury would tend to destroy or prejudice the right itself, that tendency is a sufficient damage (Harrop v. Hirst, L. R. 4 Ex. 43). But a mere possibility of damage at some future period, unaccompanied with any present damage, is insufficient to sustain the action. Jackson v. Newcastle (Duke), 33 L. J. (Ch.) 698.

The right of action sometimes varies according as the disturbance affects the dominant occupier only, or the dominant reversioner as well, it being sufficient in the case of the latter, that there should be a reasonable probability of damage to his reversion arising from the fact of the denial of the right of easement generally (Metropolitan Industrial Dwellings Association v. Petch, 5 C. B. (N.S.) 504). For example, an action for the pollution of air can in general only be maintained by the person in present occupation, and not by the reversioner (Simpson v. Savage, 1 C. B. (N.S.) 347), that injury being necessarily of a temporary nature. At the same time, if the injury is likely in any case to be of a permanent character, the reversioner may take proceedings for its suppression (Wilson v. Townend, 1 Dr. & Sm. 324). e.g., for the locking of a gate. Kidgill v. Moor, 9 C. B.

364.

A defendant to an action for disturbance may plead in justification that the plaintiff was exceeding the rightful enjoyment of his easement, and that he, the defendant, merely obstructed the plaintiff's encroachment; and this plea is good, even although the defendant's obstruction of plaintiff's encroachment has obstructed also the plaintiff's lawful enjoyment (Cawkwell v. Russel', 26 L. J. (Ex.) 34), with the single exception of light, as to which the plea would be bad (Tapling v. Jones, 11 H. L. C. 290). And it seems that when an easement of light has been acquired under the Prescription Act, there can be no encroachment, inasmuch as the user is for all purposes, future as well as present (Yates

EASEMENTS-continued.

v. Jack, L. R. 1 Ch. Ap. 295), although where the easement exists under an express grant the user is measured by the words of the grant.

Lastly, easements although once validly existing may have become extinguished or suspended. Thus, in the event of the dominant and servient tenement becoming united in one owner who is legally seised thereof, the easement as such is necessarily either extinguished or suspended, upon the maxim nulli res sua servit (Sury v. Pigott, Pop. 166). But in such event, if the easement is of the quality styled apparent and continuous, that is to say, if the existence of the easement is apparent to the eye, and those appearances continue after the unity of ownership, then it may be concluded from the cases of Suffield v. Brown (33 L. J. (Ch.) 349) and Crossley v. Lightowler (L. R. 2 Ch. Ap. 486), that if the once-dominant tenement is sold, the easement revives without any fresh creation by grant or otherwise, and is taken to have been suspended merely, but that if the once servient tenement is sold, the easement does not revive without some fresh creation by reservation or otherwise, and is taken to have been extinguished; and the like rule applies in the case of those rights or quasieasements, being apparent and continuous, which the common owner has exercised over the one portion of his land for the benefit of the other portion of it, where the two portions, being respectively the quasi-servient and quasi-dominant lands, have never been the properties of several

owners.

Where an easement (like a natural right) is suspended merely, it revives (like a natural right) upon the removal of the cause of the suspension (Bower v. Hill, 2 Bing. (N.C.) 339); on the other hand, where an easement (unlike a natural right) is extinguished altogether, it does not revive merely upon the removal of the cause of the extinguishment, but requires in addition for its revival, or rather re-establishment, a re-grant thereof. Bower v. Hill, supra.

ECCLESIASTICAL COMMISSIONERS

continued.

the stats. 3 & 4 Vict. c. 86, and 29 & 30 Vict. c. 18, for the general management and supervision of the estates of the Church, being either episcopal or capitular, and for the proper application of the revenues or produce thereof in support and extension of the Church.

ECCLESIASTICAL COURTS: See COURTS ECCLESIASTICAL.

EDUCATION: See titles ELEMENTARY SCHOOLS; PUBLIC SCHOOLS.

EFFLUXION OF TIME. When this phrase is used in leases, conveyances, and other like deeds, or in agreements expressed in simple writing, it indicates the conclusion or expiration of an agreed term of years specified in the deed or writing, such conclusion or expiration arising in the natural course of events, in contradistinction to the determination of the term by the act of the parties or by some unexpected or unusual incident or other sudden event. EIGNÉ. This word is a corruption of the French word aisné or aîné, meaning eldest. The phrase is usually found in connection with bastard, and a bastard cigne is commonly used to describe a son born before the intermarriage of his parents, in contradistinction to a mulier puisne, who is the second or other son born of the same parents subsequently to their intermarriage. By the laws of England, and in particular by a clause in the Statute of Merton (20 Hen. 3, c. 9), a bastard eigné remains a bastard even after the intermarriage of his parents, and as such is incapable of inheriting from or through either of his parents; and neither is he their, or either of their, next of kin.: By the laws of some other countries (e.g., of Scotland), he becomes legitimate upon the intermarriage of his parents; and even by the laws of England, he has a modified right of inheriting to his parents or either of them, in this way, namely, that if he enters upon the lands of his parent upon the parent's death, and afterwards dies seised thereof, his issue succeeding him in the possession of the lands may hold and enjoy the same as against the mulier puisne and his heirs.

EIRE, or EYRE. This word is a French corruption of the Latin word iter, and means a way. The word usually occurs only in the phrase justices in eyre, called also justices itinerant, a body of judges who were instituted for the first time in 1176 by an Act of the Parliament held at Northampton in that year. Under that Act the kingdom was divided into six circuits, and

EIRE, or EYRE-continued.

these newly created judges were commissioned to travel though the various counties comprised in the several circuits, and therein to administer justice upon writs so-called of assize (see title AsSIZE). It is from this early institution that the present justices of assize and nisi prius are historically derived.

See title COURTS OF JUSTICE. EJECTIONE CUSTODIE, This phrase, which is the Latin equivalent for the French ejectment de garde, was the title of a writ which lay for a guardian when turned out of any land of his ward during the minority of the latter.

EJECTMENT. This is an action for the recovery of land. The action originated as far back as the reign of Edward III., and was then a species of personal action brought to recover damages only for the ouster. But towards the end of the 15th century the possession, it was decided, might be recovered by it. From that time until the C. L. P. Act, 1852, the action was encumbered to a very large extent with fictions, being in the form of Doe d. Thomas v. Richard d. Roe, the first-mentioned person, viz., Doe, being the nominal plaintiff only; the second-mentioned person, viz., Thomas, the real plaintiff, and who was commonly called the lessor of the plaintiff'; the third-mentioned person, viz., Richard, being the tenant in possession; and the fourth-mentioned person, viz., Roe, being the imaginary ejector, and who was commonly called the casual ejector. The declaration was the first step in the action, and was framed in trespass and ejectment between Doe v. Roe; it was served upon the tenant in possession, who or his landlord thereupon obtained a consent rule" of the Court to appear and defend the action, admitting the fictitious lease, entry, and ouster, and consenting to defend the action upon the strength of his title and nothing else. Thereafter the question came on to be tried upon its merits, and was in substance the following:-Whether the lessor of the plaintiff, on the day when he was alleged to have made the lease to John Doe, and from thence until the service of the declaration, was entitled to the property in question; if the verdict was in the affirmative, the plaintiff recovered; and if in the negative, then the defendant remained in possession, and also recovered his costs of the action from the lessor of the plaintiff.

But at the present day, under the C. L. P. Act, 1852, ss. 168, 221, the mode of proceeding in ejectment is as follows :—

(1.) In cases other than between landlord and tenant,-A writ of summons is

EJECTMENT-continued.

issued precisely as in a personal action, and is directed to the persons in possession, and to all persons entitled to defend the possession; and it describes with a reasonable certainty the property claimed. The writ also states the names of all persons in whom the title is alleged to be, and commands the persons to whom it is directed to appear within sixteen days after service thereof to defend the possession, and gives notice that in default of appearance they will be turned out of possession. The writ remains in force for three months, and is to be served personally if possible. Immediately upon service, the tenant in possession is forthwith to give notice thereof to his landlord, who may by leave of the Court or a judge appear and defend.

An appearance having been thus entered, an issue may be made up without any pleadings, by the plaintiff merely setting forth the writ, and stating the fact and date of appearance; and the sheriff is directed to summon a jury. The issue is then delivered by the plaintiff to the opposite party, and the action comes on for trial in the usual way. The question for trial is, in substance, whether the statement in the writ of the plaintiff's title is true or false, and if true, then which of the plaintiffs, if more than one, is entitled, and whether to the whole or to what part; and then, according to the verdict, the plaintiff recovers or not. But in a proper case a special verdict may be found, and either party may tender a bill of exceptions. The damages for the interim detention of the property are in general recovered in an action of trespass for mesne profits.

The plaintiff if successful then obtains a writ of execution, called a writ of habere facias possessionem, the writ being directed to the sheriff as in the usual case.

In case the judgment is afterwards reversed in error or on appeal, a writ of restitution may be awarded.

(2.) In cases between landlord and tenant,-Putting aside the provisions made by statute for the recovery of small tenements for causes sufficient to support an ejectment, the mode of ejectment between landlord and tenant is as follows:(a.) If there be a sufficient distress on

the premises to answer the amount of rent due.-The proceeding in this case must be by the Common Law, and not under the C. L. P. Act, 1852, and is as follows:-Before commencing the action, a demand must be made for the rent, and usually by the landlord in person, upon the land, on the last

EJECTMENT-continued.

day limited for payment to save a forfeiture, and at sunset of that day. If the tenant fails to pay, then the proceedings in ejectment are to be taken as in an ejectment between strangers explained above.

(b) If there be no sufficient distress on the premises to answer the amount of rent due, and onehalf year's rent is due. The proceeding in this case is under the C. L. P. Act, 1852, s. 210, and is as follows:-The landlord or his agent must make a search over the land to prove the insufficiency of the property thereon to answer the distress, and must furnish himself with proof thereof for the satisfaction of the Court. Thereafter the writ is the same as in the ordinary case of ejectment as between persons who are strangers to each other, as explained above. See Smith's Action at Law, 398-429.

ELECTION. Is the name of a head of Equity jurisprudence, which directs as follows;-Where, by one and the same instrument, property belonging to A. is given away to B. without the consent of A., and other property of the testator's or settlor's own is at the same time given to A., without any express condition that A. is only to take the latter property if he consents to give up his own property to B., then there is an implied condition to that effect; nevertheless if A. will keep his own property, he is only bound to give up to B. an equivalent for it out of the property of the testator or settlor which is given to himself, and he may thereafter keep the difference and also his own property, compensation and not forfeiture being the rule in all cases of election.

The question of election is sometimes encumbered by part of the property given being the subject of a special power of appointment among children or other limited classes of objects; but the rule in these cases, although somewhat more encumbered in its details, is in substance the same, viz. :

(1.) When the intended appointees of the property are also the persons entitled in default, then in every such case :— (a.) If the testator gives them some

property of his own, and gives away either the whole or part of the appointment property to other persons who are not objects of the power at all, the intended appointees are put to their

ELECTION-continued.

election (Whistler v.

Webster,

2 Ves. Jun. 367); but (b.) If the testator gives them no property of his own, under the like circumstances, they are not put to their election. Bristowe v. Warde, 2 Ves. Jun. 336. (2.) Where the intended appointees are not also entitled in default, but some other person or persons are entitled in default of appointment, inasmuch as in this case, clearly, the donce of the power has the intended appointees, and (although to a less extent) the person or persons entitled in default, under his entire control, to give or not to give the property to them:(a.) The intended appointees cannot complain whatever the donee of the power should do, and must simply be thankful for what they get; but

(b) The person or persons entitled in default have a right to say that, an improper appointment being no appointment at all, they are entitled to all that part of the property which is improperly appointed; and if the appointor wants to shut them up from complaining of and defeating his improper appointment, he must give them some property of his own, "as a sop to pacify them;" for otherwise they will not be put to their election. But if he does give them some property of his own, they will be put to their election, according to the general rule.

ELECTION COMMITTEE. This was a committee of the House of Commons appointed to inquire into the validity of the election of its own members. Its mode of proceeding was regulated by the Act 4 & 5 Vict. c. 58, which prescribed a remedy by petition in favour of the party aggrieved, whether he were a candidate for election or an elector, and to which petition the member actually returned was made respondent. The petition was, in the first instance, delivered by either party to the general elections committee appointed by the House at the commencement of the session, and was then referred by that committee to the Select Committee, which consisted of a chairman and six other members. This select committee, being sworn duly to try the matter, were empowered for that purpose to examine witnesses on oath; and by the majority of their voices they determined the validity or invalidity of the past return, together with consequential findings. These election committees have been superseded by

ELECTION COMMITTEE-continued. the Parliamentary Elections Act, 1868 (31 & 32 Vict. c. 125), which has provided in effect as follows:

A petition complaining of an undue return is to be presented in the Court of Common Pleas by any one who either voted or had a right to vote at the election, or by the defeated candidate; and such election petition (as it is called) is to be tried before a puisne judge of the superior Courts, three such judges (to be called the election judges), being chosen for this purpose from among the judges of those Courts respectively. The trial is to take place, in the case of a borough election, in the borough, and in the case of a county election, in the county, excepting in exceptional cases; and at the conclusion of the trial the judge is to declare the validity or invalidity of the return, and who is duly elected, or whether the election is wholly void, and is to certify his determination to the Speaker of the House of Commons, and the determination so certified is final to all intents and purposes. See also next title.

ELECTIONS, COMMONS' RIGHTS IN. At the election for Bucks, in 1604, Sir Francis Goodwin was chosen in preference to Sir John Fortescue. Now, as Goodwin was an outlaw, and the King, by proclamation of the previous year, had forbidden the return of such persons as members, the return made by the sheriff into Chancery was sent back to the sheriff, and a second election was directed to be made, upon which latter election, Sir John Fortescue was returned.

With this interference in election matters on the part of the King, the Commons were greatly annoyed, and they resolved that the election of Goodwin was lawful. The Lords thereupon requested the Commons to explain the matter; but the Commons answered that it was not consistent with the dignity or the practice of their House to account for their proceedings. The King thereupon directed a conference between the Lords and Commons upon the matter, and afterwards a second conference between the Commons and the judges; but the Commons refused to obey either direction, whereupon the King commanded the same as an absolute monarch. Upon this, the Commons yielded, and the conference between them and the judges came off and ended in both members being set aside and a writ issued for a new election, the King directing that all the proceedings in the matter should be erased from the journals.

Subsequently, in the year following (1604-5), the Commons delivered to the King a declaration of their rights, and which declaration (entitled "A Form of

ELECTIONS, COMMONS' RIGHTS INcontinued.

Apology and Satisfaction") was to the following effect:

"(1.) That the privileges and liberties of the Commons are their right and their inheritance no less than their very lands and goods, and that the same privileges and liberties are not given up by the customary request made by the Commons at the commencement of parliaments, that they may enjoy their privileges and liberties as in times past. for that such request is a mere act of courtesy on their part;

(2.) That their House is a Court of Record, and that there is no Court in the kingdom which can compare with the High Court of Parliament;

(3.) That the House of Commons is the sole proper judge of election matters; and (4.) That the power of the High Court of Parliament being above the Law is not founded on the Common Law, but that Court has rights and privileges peculiar to itself."

ELECTIONS, CROWN'S INFLUENCE IN. By the stat. 28 Edw. 1, st. 3, c. 8, the power to elect the sheriffs had been given to the people, but that power was transferred to the king by the stat. 9 Edw. 2, st. 2, and the election of sheriff's was rendered annual and the old sheriffs made reeligible by the stat. 14 Edw, 3, st. 1, c. 7. Now

(1.) The first mode in which the Crown endeavoured to influence elections was furnished by this attitude of the sheriffs to the Crown; for the sheriff being the nominee of the Crown and being anxious to retain a lucrative and influential position, it was a matter of policy on his part to return members who should support the Crown, and to omit altogether (as he was well able in those times to do), the return of members from boroughs not well disposed towards the Crown.

In later times, other modes were adopted by the Crown to influence elections, namely, the following,

(2.) The creation of new boroughs, e.g., Edward VI. created 22, Mary 14; Elizabeth over 50, and James I. about as many;

(3.) The dispatch of circular letters to the nobility and influential gentry in the provinces, e.g., in the reigns notably of Edward VI. and James II.;

(4.) The securing a favourable party in the Commons, e.g., by means of the undertakers of James I., being five in number (Neville, Yelverton, Hyde, Crew, and Digges), who undertook to keep up a favourable majority for the king;

(5.) The re-modelling or purging of corporations, e.g., by James II, by means of his Regulators of Corporations; and

ELECTIONS, CROWN'S INFLUENCE IN -continued.

(6.) The distribution of places and pensions by the sovereign and his ministers,a mode of influence which was originated and carried to excess in the reign of George III., and which has, more or less, continued almost until the present day.

ELECTIONS, PARLIAMENTARY: See for the latest practice in these matters, Bushby's Elections Manual, by Hardcastle, 1874.

ELECTORAL FRANCHISE. This phrase denotes most commonly the qualifications of the persons entitled to elect members of parliament, whether in counties or in boroughs; although it may also apply to the qualifications (now entirely repealed) of persons entitled to become candidates for election. A brief history of the electoral franchise at different periods is as follows:

I. In the case of Counties: It appears that originally all the freeholders of the county, whether resident or not, elected the members for the county (7 Hen. 4. c. 15); that afterwards by the stat. 1 Hen. 5, c. 1, residence was made a necessary qualification; that the number of electors occasioning turbulence, the forty shillings freehold qualification was imposed by 8 Hen. 6, c. 7; that the stat. 14 Geo. 3, c. 58, dispensed with the qualification of residence. More recently, by the Reform Act, 1832, the electors for counties were increased by the addition of copyholders and leaseholders for terms of years, and of tenants at will, paying a rent of £50 a year.

II. In the case of Boroughs: It appears that originally the right of election in these was very various, the chief varieties of qualification being the following:

(1.) All inhabitant householders resident within the borough;

(2.) All inhabitants paying "scot and lot";

(3.) All "potwallers," i. e.. persons (whether householders or lodgers) furnishing their own diet;

(4.) All persons holding burgage lands; and

(5.) All persons enjoying corporate rights. And in some boroughs two or more of these qualifications might be combined.

After many fruitless endeavours, extending through the reigns of George III. and George IV., the Reform Act, 1832, regulated the representation as follows: A £10 household franchise was uniformly established in all boroughs, saving only the rights of corporate towns. Ultimately, by the Act 30 & 31 Vict. c. 102 (the Representation of the People Act, 1867), which extends as well to counties as to boroughs, the rights of election have been regulated as follows: