twenty years from the time when the mortgagee took possession, or from the last written acknowledg

ment.

66

66

"land, or the receipt of any rent, comprised in his mortgage, the
mortgagor, or any person claiming through him, shall not bring a
"suit to redeem the mortgage, but within twenty years next after the
"time at which the mortgagee obtained such possession or receipt,
"unless in the meantime an acknowledgment of the title of the
"mortgagor, or of his right of redemption, shall have been given to
"the mortgagor, or some person claiming his estate, or to the agent
"of such mortgagor or person, in writing, signed by the mortgagee,
or the
person claiming through him; and in such case no such suit
"shall be brought, but within twenty years next after the time at
"which such acknowledgment, or the last of such acknowledgments,
"if more than one, was given; and when there shall be more than
"one mortgagor, or more than one person claiming through the
"mortgagor or mortgagors, such acknowledgment, if given to any
"of such mortgagors or persons, or his or their agent, shall be as
"effectual as if the same had been given to all such mortgagors or
persons: but where there shall be more than one mortgagee, or
more than one person claiming the estate or interest of the mort-
gagee or mortgagees, such acknowledgment, signed by one or
more of such mortgagees or persons, shall be effectual only as
"against the party or parties, signing as aforesaid, and the person or
persons claiming any part of the mortgage money, or land or rent,
"by from or under him or them, and any person or persons entitled
"to any estate or estates, interest or interests, to take effect after or
"in defeasance of his or their estate or estates, interest or interests;
"and shall not operate to give to the mortgagor or mortgagors a
"right to redeem the mortgage, as against the person or persons
"entitled to any other undivided or divided part of the money, or
"land or rent: And where such of the mortgagees or persons aforesaid
"as shall have given such acknowledgment, shall be entitled to a
"divided part of the land or rent comprised in the mortgage, or
"some estate or interest therein, and not to any ascertained part of
"the mortgaged money, the mortgagor, or mortgagors, shall be en-
“titled to redeem the same divided part of the land or rent, on pay-
"ment, with interest, of the part of the mortgage money, which
"shall bear the same proportion to the whole of the mortgage money,
"as the value of such divided part of the land or rent shall bear to
“the value of the whole of the land or rent comprised in the mort-
"gage."*

66

§ 28.

66

66

66

That "after the said 31st day of December 1833, no action or suit, "or other proceeding, shall be brought, to recover any sum of money "secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twenty years next after a present right to receive "the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of "the principal money, or some interest thereon, shall have been paid, "or some acknowledgment of the right thereto shall have been given in "writing, signed by the person by whom the same shall be payable, "or his agent, to the person entitled thereto, or his agent; and in “such case, no such action or suit, or proceeding, shall be brought, “but within twenty years after such payment or acknowledgment, or "the last of such payments or acknowledgments, if more than one, was given."a

66

That" after the said 31st day of December 1833, no arrears of "dower, nor any damages on account of such arrears, shall be re" covered or obtained, by any action or suit, for a longer period than "six years next before the commencement of such action or "suit." b

66

66

66

66

66

That" after the said 31st day of December 1833, no arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be "recovered by any distress, action, or suit, but within six years next after the same respectively shall have become due, or next after an " acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom "the same was payable, or his agent: Provided nevertheless, that "where any prior mortgagee, or other incumbrancer, shall have "been in possession of any land, or in the receipt of the profits "thereof, within one year next before an action or suit shall be "brought by any person entitled to a subsequent mortgage or other "incumbrance on the same land, the person entitled to such sub"sequent mortgage or incumbrance may recover in such action or "suit, the arrears of interest which shall have become due during the "whole time that such prior mortgagee or incumbrancer was in such

CHAP. I.

Act to extend to spiritual courts.

Not to ex

tend to Scotland, nor to advowsons in Ireland.

King, when bound, or not,

by statutes of li

mitations.

"possession or receipt as aforesaid, although such time may have "exceeded the said term of six years.'

" a

And that "after the said 31st day of December 1833, no person "claiming any tithes, legacy, or other property, for the recovery of "which he might bring an action or suit at law or in equity, shall bring a suit, or other proceeding, in any spiritual court, to recover "the same, but within the period during which he might bring such "action or suit at law or in equity." b

Provided always, that "this act shall not extend to Scotland; "and shall not, so far as it relates to any right to permite to, or "bestow any church, vicarage, or other ecclesiastical benefice, ex"tend to Ireland." d

The King, not being named in the statute 32 Hen. VIII. c. 2, e or 21 Jac. I. c. 16, was not bound by either of these statutes; and, for a similar reason, he is not bound by the statute 3 & 4 W. IV. c. 27, for the limitation of actions, relating to real property, &c. : But he is expressly named in, and bound by the statutes 2 & 3 W. IV. c. 71, for shortening the time of prescription in certain cases, and 2 & 3 W. IV. c. 100, for shortening the time required in claims of modus decimandi, &c.; which also extend to lands being parcel of the duchy of Lancaster, or Cornwall: And, by the statute 21 Jac. I. c. 2, a time of limitation was extended generally to the case of the King; viz. sixty years precedent to 19th February 1623; but, this becoming ineffectual by efflux of time, the same date of limitation was fixed by the statute 9 Geo. III. c. 16, to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; so that a possession for sixty years is now a bar, even against the prerogative, in derogation of the ancient maxim, "nullum tempus occurrit regi." h

IV. c. 71. & c. 100.

former of these statutes.

It will next be proper to notice, as connected with the limitation Stat. 2 & 3 W. of actions, &c., the provisions of the statutes 2 & 3 W. IV. c. 71, for shortening the time of prescription in certain cases, and 2 & 3 W. IV. c. 100, for shortening the time required in claims of modus decimandi, or exemptions from, or discharge of tithes. Before the making of the former of these statutes, as appears by Preamble to the preamble thereto, the expression time immemorial,' or time whereof the memory of man runneth not to the contrary,' was, by the law of England, in many cases, considered to include and denote the whole period of time from the reign of King Richard the first, whereby the title to matters that had been long enjoyed was sometimes defeated, by shewing the commencement of such enjoyment, which was in many cases productive of inconvenience and injustice. And, in pleading a right of common by prescription, the party must formerly have shewn a seisin in fee of the land in respect of which he claimed, and prescribed in a que estate for the right: Therefore, where a defendant justified under a right of common of pasture, by shewing a demise from a freeholder for life, of the land in respect of which he claimed, and averred that he, the defendant, and all those whose estate he then had, and his landlord, from time whereof, &c., had common of pasture in respect of the demised premises, the court of Exchequer held, upon demurrer, that the plea was bad. But now, by the above statute, it is enacted, that "no Periods of limit"claim which may be lawfully made at the common law, by custom, "prescription, or grant, to any right of common, or other profit or benefit, to be taken and enjoyed from or upon any land of our sovereign lord the king, his heirs or successors, or any land being "parcel of the duchy of Lancaster, or of the duchy of Cornwall, or " of any ecclesiastical or lay person, or body corporate, except "such matters and things as are therein specially provided for, " and except tithes, rent, and services, shall, where such right, "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 right, profit or benefit, was first taken or en"joyed, at any time prior to such period of thirty years; but

66

66

a

Attorney-General v. Gauntlett, 3 Younge & J. 93. And for the mode of setting forth a title to incorporeal hereditaments, previously to the above sta

tute, see Tidd Prac. 9 Ed. 443. and the
authorities there referred to.
b § 1.

ation for claims to rights of common, and other profits à prendre.

СНАР. І.

For claim to

right of way, or other easement, or watercourse, &c.

For claim to use of light.

Periods of limit

ation, how reckoned.

"nevertheless, such claim may be defeated in any other way, by "which the same is now liable to be defeated: And when such "right, profit or benefit, shall have been so taken and enjoyed as "aforesaid, for the full period of sixty years, the right thereto "shall be deemed absolute and indefeasible; unless it shall appear "that the same was taken and enjoyed by some consent or agree"ment, expressly made or given for that purpose, by deed or "writing."

66

66

And it is thereby further enacted, that “ no claim, which may "be lawfully 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 lord the king, his heirs or successors, or being parcel of the duchy of Lancaster, or of the "duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter therein 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 at

66

66

66

as

any time prior to such period of twenty years; but nevertheless, "such claim may be defeated in any other way, by which the

66

66

same is now liable to be defeated: And where such way, or other "matter as therein last before mentioned, shall have been so en"joyed 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." That "when the access and use of light to and for any dwell"ing house, work-shop, 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 in"defeasible, any local usage or custom to the contrary notwith

66

66

66

standing, 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."b

That "each of the respective periods of years thereinbefore "mentioned shall be deemed and taken to be the period next be"fore some suit or action, wherein the claim or matter to which a § 2. b§ 3.