for any portion or portions of such imprisonment, or of such imprisonment with hard labour not exceeding one calendar month at any one time, and not exceeding Limitation. three calendar months in any one year, as to the Court in its discretion shall seem meet.

rants may be.

ed to be kept

XII. And be it enacted, That any Justice of the Peace of any District, City, Town Search waror place in which any gunpowder or other explosive, dangerous or noxious substance issued suspected to be made or kept for the purpose of being used in committing an offence search for gunpowder or exunder this Act, upon reasonable cause assigned upon oath by any person or persons, plosive submay issue a warrant or warrants under his hand and seal for searching in the day time stance suspectany house, shop, cellar, yard or other building, or any vessel in which such gunpowder for illegal puror other explosive dangerous or noxious substance is suspected to be made or kept for poses. such purpose as aforesaid, and that every person acting in the execution of any such warrant shall have power to seize any gunpowder, explosive substance or any danger- The same if ous or noxious thing, or any machine, engine or instrument or thing which he shall formed may be have good cause to suspect to be intended to be used in committing or enabling any other person to commit any offence against this Act, and with all convenient speed after the seizure to remove the same to such proper places as they shall think fit, and may detain the same until ordered to restore it to the person or persons who shall claim the same by any Judge of any of Her Majesty's Courts of Queen's Bench; and such sear- Protection to cher or searchers, seizer or seizers shall not be liable to any suit for such detainer, or searchin for any loss of or damages which may happen to the same, other than by the wilful acts or neglects of them or the persons with whom they shall entrust the keeping thereof.

seized; how to

be dealt with.

searching.

&c. with

under

XIII. And be it enacted, That any gunpowder, explosive substance or any danger- Forfeiture of ous or noxious thing, or any machine, engine, instrument or thing which shall be in- en found w tended to be used in committing or in enabling any other person to commit any offence persons conagainst this Act, and which shall be seized and taken possession of under the provisions this Act. thereof, shall, in the event of the person or persons in whose possession the same shall be found, or the owner or owners thereof being convicted for any offence under this Act, be forfeited; and the same shall be sold under the direction of the Court before Sale of such which any such person shall be convicted, and the proceeds thereof shall be paid into gunpowder. the hands of the Receiver General to and for the use of the Province.

XIV. And be it enacted, That it shall be lawful for any Constable or Peace Officer to take into custody, without a warrant, any person whom he shall find lying or loitering in any highway, yard or other place during the night, and whom he shall have good cause to suspect of having committed or being about to commit any felony under this Act, and to detain such person until he can be brought before a Justice of the Peace to be dealt with according to law.

XV. Provided always, and be it enacted, That no such person having been so apprehended shall be detained after noon of the following day without being brought before

a Justice of the Peace.

XVI. And be it enacted, That neither the Justices of the Peace acting in and for any District, Division or City, nor the Recorder of any City, shall, at any Session of the Peace or at any adjournment thereof, try any person or persons for any offence under this Act.

Persons loitering, &c. and intention to commit offenAct, may be

suspected of

cesagainst this

detained.

Must be brought before

in a certain time.

Offender not to be tried by Peace or Re

Offences within the Juris

XVII. And be it enacted, That where any felony punishable under this Act shall be

diction of Vice committed within the jurisdiction of any Court of Admiralty in this Province, the

Admiralty, how dealt with.

Act may be amended in this Session.

same shall be dealt with, inquired of and tried and determined in the same manner as any other felony committed within that jurisdiction.

XVIII. And be it enacted, That this Act may be amended or repealed by any Act to be passed in this Session of Parliament.

MONTREAL :-Printed by STEWART DERBISHIRE & GEORGE DESBARATS,
Law Printer to the Queen's Most Excellent Majesty.

DINO E

ANNO DECIMO ET UNDECIMO

VICTORIÆ REGINE.

CAP. V.

An Act for shortening the time of Prescription in certain cases, and for other purposes therein mentioned.

[9th July, 1847. ]

WHEREAS by the Law of Upper Canada the title to matters that have been long Preamble.

Certain claims not to shewing only more than

be defeated by

enjoyed, is subject to some cases to be defeated by shewing the commencement of such enjoyment, to the great inconvenience of and injury to parties having had suchlong enjoyment: For remedy thereof, Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, and intituled, An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada, and it is hereby enacted by the authority of the same, That no claim which may be lawfully made at the Common Law by custom, prescription or grant to any profit or benefit to be taken and enjoyed from or upon any land of Our Sovereign Lady the Queen, Her Heirs or Successors, or of any Ecclesiastical or Lay person or body corporate, except such matters or things as are herein specially provided for, and except rent and services, shall, where such profit or benefit shall have been actually taken and enjoyed by any person claiming right thereto, without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such profit or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such And if enjoyed profit or benefit shall have been so taken and enjoyed as aforesaid for the full period for 60 years, of sixty years, the right thereto shall be deemed absolute and indefeasible, unless it indefeasible. shall appear that the same was taken and enjoyed by some consent or agreement ex- Exception. pressly made or given for that purpose by deed or writing.

II. And be it enacted, That no claim which may lawfully be made at the Common Law by custom, prescription or grant to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over or from any land or water of Our said Lady the Queen, Her Heirs or Successors, or being the property of any Ecclesiastical or lay person or body corporate when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by shewing only that such way or other matter was first enjoyed

that the enjoyment began

30 years ago.

they shall be

Right of way be defeated by shewing only more than 20 years ago.

40 years, to be indefeasible. Exception.

at any time prior to such period of twenty years, but nevertheless, such claim may If enjoyed for be defeated in any other way by which the same is now liable to be defeated, and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

Access and light

enjoyed for 20 years to be in

defeasible.

Exception.

How the

terms shall be calculated;

III. And be it enacted, That when the access and use of light to or for any dwelling house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

IV. And be it enacted, That each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period next before some suit or action and what acts wherein the claim or matter to which such period may relate, shall have been or shall only shall be an interruption be brought into question; and that no act or other matter shall be deemed an interto the prescription.

What allegation by the party claiming shall be sufli

cient.

What proof

admitted for or against such allegation Plea of sufli

cient term of substituted for

enjoyment,

time immemorial.

Matter of ex

ception to the effect of such

term to be spe

cially pleaded.

No presump

on proof of en

ruption within the meaning of this Statute, unless the same shall have been, or shall be, submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made.

V. And be it enacted, That in all actions upon the case and other pleadings wherein the party claiming may now by law allege his right generally without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient, 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 that 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.

VI. And be it enacted, That in the several cases mentioned in and provided for by tion admissible this Act, no presumption shall be allowed or made in favor or support of any claim joyment for a upon proof of the exercise or enjoyment of the right or matter claimed for any less shorter period period of time or number of years than for such period or number mentioned in this quired for pre- Act as may be applicable to the case and to the nature of the claim: Provided also, scription. that the time during which any person otherwise capable of resisting any claim to any

Time during which a party could not act not to be com

of the matters before mentioned shall have been or may be an infant, idiot, non compos mentis, feme-covert, or tenant for life, or during which any action or suit shall have been puted against pending, and which shall have been diligently prosecuted until abated by the death of

him.

any

any party or parties thereto shall be excluded in the computation of the period hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible.

cluded from

cases.

VII. Provided also and be it enacted, That when any land or water upon, over or Terms of from which any such way or other convenient water-course or run of water shall have years &c. exbeen or shall be enjoyed or derived, or shall be held under or by virtue of any term of computation, life or any term of years exceeding three years from the granting thereof, the time of incertain 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.

VIII. Provided also and be it enacted, That nothing in this Act shall extend to support or maintain or be construed to support or maintain any claim to any profit or benefit to be taken or enjoyed from or upon any land of Our Sovereign Lady the Queen, Her Heirs and Successors, or to any way or other easement, or to any watercourse or the use of any water to be enjoyed or derived upon, over or from any land or water of Our said Lady the Queen, Her Heirs and Successors, unless such land, way, easement or water-course or other matter shall lie and be situate within the limits of some town or township, or other parcel or tract of land duly surveyed and laid out by proper authority.

IX. And whereas it is expedient to make further provision for the limitations of actions and suits relating to real property: Be it enacted, That when the right of a tenant in tail of any land or rent to make an entry or distress or to bring an action to recover the same, shall have been barred by reason of the same not having been made or brought within the period limited by the Act of the Parliament of Upper Canada, passed in the fourth year of the Reign of His late Majesty King William the Fourth, and intituled, An Act to amend the law respecting Real Property, and to render the proceedings for recovering possession thereof in certain cases less difficult and expensive, which shall be applicable in such case, no such entry, distress or action shall be made or brought by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred.

X. And be it enacted, That when a tenant in tail of any land or rent entitled to recover the same shall have died before the expiration of the period limited in the said Act, passed in the fourth year of His late Majesty's Reign, which shall be applicable in such case for making an entry or distress or bringing an action to recover such land or rent, no person claiming any estate, interest or right which such tenant in tail might lawfully have barred, shall make an entry or distress or bring an action to recover such land or rent, but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action.

XI. And be it enacted, That when a tenant in tail of any land or rent shall have made an assurance thereof, which shall not operate to bar an estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof or at any time afterwards, be in possession

Exception as

to lands of
the Crown not

duly surveyed and laid out.

Prescription
U. C. 4 W. 4.

under Act of

c. 1, against the tenant in

tail, to be in those whose have barred.

certain cases valid against

he could

in such cases

Term elapsed during the life of the tenant computed against those rights he could have

in tail to be

barred.

Effect of an