3&4 Will. 4, c. 27, s. 34.

any respect or republished his will, leaving his eldest son of full age. Upon the death of the testator, in 1791, the six younger sons entered into the possession, inter alia, of the after-acquired property, and so continued until the present time: George, the eldest son, died in 1819, leaving an infant heir. It did not appear that any claim was ever made on the part of George during his life or after his death by his heir at law, and the younger sons continued during the entire of such period in the undisturbed enjoyment of the property. In 1839, the premises were sold under a decree of the court, pronounced in a suit instituted by a judgment creditor of the testator, in which suit the infant heir was a party defendant. Subsequently to this sale the heir died, and the suit was not revived against the next heir. The abstract of title stated all the above matters, and was verified by two affidavits deposing as to the fact of the possession and receipt of rent by the younger sons: it was held, upon objections to the title on the part of the purchaser, that by the operation of this statute, such a title had been created as the purchaser was bound to take. (Scott v. Nixon, 3 Dru. & War. 388.) In the subsequent case of Tuthill v. Rogers, (6 Ir. Eq. R. 441; 1 Jones & L. 36,) Sugden, L. C., observed, that the above decision had been acquiesced in, and in conformity with it he should be compelled in principle to adopt the same construction against the rights of the crown, if the case came within the provisions of the act 48 Geo. 3, c. 47, by which the right of the crown is barred, and the estate actually transferred and vested in the person who has held adverse possession for sixty years.

Receipt of rent to

of profits.

RECEIPT OF RENT.

35. The receipt of the rent payable by any tenant from year be deemed receipt to year, or other lessee, shall, as against such lessee or any person claiming under him (but subject to the lease), be deemed to be the receipt of the profits of the land for the purposes of this act.

Real and mixed actions abolished after the 31st

IX. ABOLITION OF REAL AND MIXED ACTIONS, &C. 36. No writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, December, 1834; writ of right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, writ de rationalibus divisis, writ of right of ward, writ de consuetudinibus, et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de theolonia, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in remainder, or in reverter, writ of assize, of novel disseisin, nuisance, darrein presentment, juris utrum, or mort d'ancestor, writ of entry sur disseisin, in the quibus, in the per, in the per and cui, or in the post, writ of entry sur intrusion, writ of entry sur alienation, dum fuit non compos mentis, dum fuit infra ætatem, dum fuit in prisona, ad communem legem, in casu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui ante divortium, writ of entry sur abatement, writ of entry quare ejecit infra terminum, or ad terminum qui præteriit, or causa matrimonii prælocuti, writ of aiel, besaiel, tresaiel, cosinage, or

c. 27, s. 36.

nuper obiit, writ of waste, writ of partition, writ of disceit, writ 3 & 4 Will. 4, of quod ei deforceat, writ of covenant real, writ of warrantia chartæ, writ of curia claudenda, or writ per quæ servitia, and no other action real or mixed (except a writ of right of dower, except for dower, or writ of dower unde nihil habet (b) or a quare impedit (c), or an ejectment (d)), and no plaint in the nature of any such writ or action (except a plaint for freebench or dower), shall be brought after the thirty-first day of December, one thousand eight hundred and thirty-four.

(b) The right to bring real actions is preserved for a limited time by the 37th and 38th sections. (See post, p. 245.) A writ of right by journeys accounts, sued out after the time allowed by stat. 3 & 4 Will. 4, c. 27, s. 36, for suing out original writs of right, is a nullity, being a new writ and not a continuance of a former one. (Davies v. Lowndes, 2 Dowl. & L. 272; 6 Man. & G. 529; 8 Scott, N. R. 539. See I Phill. C. C. 328.)

It seems that an action of debt does not necessarily lie for rent in consequence of the abolition of real actions. (Varley v. Leigh, 2 Exch. R. 450.) If a tenant in a writ of right obtain judgment on demurrer to the count, the demandant not joining in the demurrer but making default, the judgment for the tenant ought not to be final, no issue being joined on the mise. A judgment under such circumstances, barring the demandant as to the present action, is, so far, good; but if it also adjudge that the tenant shall hold to him and his heirs quit of the demandant and his heirs for ever, that part is erroneous, and judgment ought so far to be reversed. So held by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench. (Nesbit v. Rishton, 11 Ad. & El. 244; 6 Ad. & El. 103; 9 Ad. & El. 426; 2 Per. & D. 706.)

quare impedit and ejectment.

By the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, s. 26, Dower, writ of no writ of right of dower or writ of dower unde nihil habet, and no plaint for tight of dower freebench or dower in the nature of any such writ, and no quare impedit abolished as real and quare impedit shall be brought after the commencement of this act, (10th October, 1860,) actions, and to be in any court whatsoever, but where any such writ, action, or plaint would commenced by now lie, either in a superior or in any other court, an action may be com- writ of summons. menced by writ of summons issuing out of the Court of Common Pleas, in the same manner and form as the writ of summons in an ordinary action, and upon such writ shall be indorsed a notice that the plaintiff intends to declare in dower or for freebench, or in quare impedit, as the case may be. The service of the writ, appearance of the defendant, proceedings in default of appearance, pleadings, judgment execution, and all other proceedings and costs upon such writ shall be subject to the same rules and practice, as nearly as may be, as the proceedings in an ordinary action commenced by writ of summons, and the provisions of "The Common Law Procedure Act, 1852," and of "The Common Law Procedure Act, 1854," shall apply to the writ and pleadings and proceedings thereupon, 23 & 24 Vict. c. 126, s. 27.

Writ and all pro ceedings there

upon to be same as in ordinary

actions.

A writ of right of dower laid when a widow had dower of part of the lands Recovery of in the same vill, for then she could not have dower unde nihil habet against dower. the same tenant. (Com. Dig. Dower (G. 1). See Roscoe on Real Actions, 29.) Dower unde nihil habet was a writ of right in its nature, and lay in all cases where a woman had a right of dower, except where she had part from the same tenant in the same vill where she then demanded it. (Com. Dig. Dower (G. 2). See Roscoe on Real Actions, 39; 2 Wms. Saund. 43--45 d, notes; Roper on Husband and Wife, by Bright, pp. 391-431, where the mode of proceeding is fully explained.)

It has been held, that copyholders shall neither plead nor be impleaded for the tenements which they hold by copy by the king's writ, but shall have their plaints in the nature of the several actions at common law, unless the dispute arise between the lord and his tenant. (2 Watk. on Cop. 35.) And the plaint in the nature of a writ of dower lies in the manor court. (4 Rep. 30 b. See Rex v. Coggan, 6 East, 431, n.; Scott v. Kettle

3 & 4 Will. 4, c. 27, s. 36.

Quare impedit.

well, 19 Ves. 335; Widowson v. Earl of Harrington, 1 Jac. & Walk. 532; 1 Scriven on Cop. 562, et seq., 3rd edit.) Courts of equity show great indulgence to a dowress on account of the great difficulty of determining à priori whether she could recover at law, ignorant of all the circumstances, and the person against whom she seeks relief having in his possession all the information necessary to enable her to establish her rights. (6 Ves. 89.) Therefore a court of equity will assist a woman claiming dower, by putting out of her way a term which prevents her obtaining possession at law; but that is only as against an heir; (Lord Dudley and Ward v. Lady Dudley, Prec. Ch. 241;) or volunteer not a purchaser; (Lady Radnor v. Rotherham, Prec. Ch. 65; but see Williams v. Lambe, 3 Br. C. C. 264, and note by Eden;) the heir or volunteer being considered as claiming in no better right than she does. A person being seised of an estate of inheritance, subject to a term outstanding for a purpose still unsatisfied, married in 1796; in 1805 mortgaged the estate, and died in 1825: it was held, that the widow having a judgment in dower was relievable in equity against the outstanding term, and should have her dower subject to one-third of the charges affecting the term. Neither party in this case having got the legal estate under control, there was no pretence for saying that equity ought not to give the preference to the dowress, who was the first incumbrancer. (Wilkins v. Lynch, 1 Hayes' Ir. R. 98.) When any question of dower has arisen in courts of equity, and doubts have been entertained of the title to dower, the practice has been to put the widow to bring her writ of dower at law. The courts will assist her in trying her right, and enjoying the benefit of it, if determined at law in her favour, by giving her a discovery of title deeds; by ascertaining metes and bounds; and they do not require her to execute the writ with all the formalities necessary at law; and the right being ascertained by judgment at law will give her possession according to her right; but still they require that the question of her title to dower, if subject to doubt, should be determined at law. (D'Arcey v. Blake, Sch. & Lef. 391.) If the right of dower is not controverted, the Court of Chancery has a concurrent jurisdiction, and writs of dower may be considered as having almost gone out of use. (Mundy v. Mundy, 2 Ves. jun. 122.) Upon the point whether a plea of a purchase for valuable consideration without notice be an answer to a bill by a dowress against a bona fide purchaser, Lord Thurlow held, that such a plea would bar an equitable, but not a legal title; (Williams v. Lambe, 3 Br. C. C. 264 ;) which was followed in Collins v. Archer, 1 Russ. & M. 292, where it was held, that such a plea would not be available against a legal title on a bill filed for on account of tithes. (See Payne v. Compton, 2 Y. & Coll. 457; Bowen v. Evans, 2 Jones & L. 263; Sugd. V. & P. 1071, 11th ed.; 1 Story's Eq. Jurisp. 510-512.) If the wife be divorced à mensé et thoro, a court of equity will not assist her in recovering dower, but leave her to her remedy at law. (Shute v. Shute, Prec. Chan. 111; Shelford on Law of Marriage and Divorce, 420.)

(c) In a proceeding by quare impedit the plaintiff must prove that he, or those under whom he claims, have made a presentation to the living. This is the only legal evidence of the right. If it were otherwise, any person might set up a claim to present a clerk without a shadow of right, and contrary to reason and common sense. (Cook v. Elphin, 5 Bligh, N. S. 126.) In another case, where a party claimed to present in the fourth turn in right of one of four coparceners, it was held sufficient to allege in the declaration a presentation by the ancestor under whom all the coparceners claimed. (Gully and others v. Bishop of Exeter, 10 B. & Cr. 584; 5 Bing. 171; see 2 M. & P. 105; 4 Bing. 525.) An advowson descended to four coparceners, A., B., C. and D., who agreed to present in succession, according to their seniority. When the third turn came, C. had died, leaving two co-heirs, E. and F., between whom the right to present was disputed. F., however, presented, and on the next avoidance E. presented. It was held, that the presentation by E. and F. were to be counted, though they were usurpations on the rights of F. and D. respectively, and that on the seventh avoidance F. would be again entitled to present. (Richards v. Earl of Macclesfield, 7 Sim. 257. See Pyke v. Bishop of Bath and Wells, Bac. Abr. tit. Joint Tenants (H.), vol. iv. p. 482, 7th edit.) In quare impedit the ordinary

could not counterplead the patron's title by setting up title in the Queen by lapse. (Stone v. Bishop of Winchester, 9 C. B. 62.)

It was not competent to the bishop to dispute the title of the patron, at least before collation, as two persons are never permitted to dispute concerning the title of a third in his absence. (Apperley v. Bishop of Hereford, 3 Moore & Scott, 102. See Elvis v. Archbishop of York, Hob. 316; and the 1st resolution in Holland's case, 4 Rep. 75 b.) As to a right of nomination by a majority, see Earl Harrington v. Bishop of Lichfield, 4 Bing. N. C. 77; 7 Scott, 371. If a deanery is in the presentation of the crown as patron, or if the crown has a right to nominate a person to the chapter, to be by them presented to the bishop for institution to the deanery, (a right of which many instances occur, and which is fully recognized in the books,) the proper remedy to admit the nominee of the crown is by quare impedit, and the Court of Queen's Bench never interferes by mandamus when that writ lies. (Reg. v. Chapter of Exeter, 12 Ad. & E. 512; see p. 534.)

By statute 4 & 5 Will. 4, c. 39, costs might be recovered in actions of quare impedit, and if plaintiff was nonsuited, &c., the defendant was, with the exception mentioned in the act, to have judgment. A bishop, who was a defendant in quare impedit, who failed upon demurrer, might be exempted from costs by the certificate of the court under that act. (Edwards v. Bishop of Exeter, 6 Bing. N. C. 146; 7 Scott, 652, 679; see 8 & 9 Vict. c. 51, for enabling archbishops and bishops in Ireland to charge their sees with the costs incurred by them in defending their rights of patronage in certain cases.)

(d) An ejectment is a possessory action, wherein the title to lands and tenements may be tried, and the possession recovered in all cases where the party claiming title has a right of entry, whether such title be to an estate in fee, fee tail, for life, or for years. (See 15 & 16 Vict. c. 76, ss. 168-221; 17 & 18 Vict. c. 125, s. 93; 2 Archbold's Pr., by Prentice, 1005-1066 (11th ed.).)

3 & 4 Will. 4,

c. 27, s. 36.

Saving Clauses.

37. Provided always, and be it further enacted, that when on the said thirty-first day of December, one thousand eight hundred and thirty-four, any person who shall not have a right of entry to any land shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the first day of June, one thousand eight hundred and thirty-five, in case the same might have been brought if this act had not been made, notwithstanding the period of twenty years hereinbefore limited shall have expired (e).

(e) A writ of right was issued before the expiration of the time allowed by this section; after that time had expired the return day of the writ was altered, and the writ was resealed: it was held, that the writ must be considered as having been brought after the time limited by the act; and it was therefore superseded. (Foot v. Collins, 1 My. & Cr. 250.)

38. Provided also, and be it further enacted, that when, on the said first day of June, one thousand eight hundred and thirty-five, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said first day of June, one thousand eight hundred and thirty-five, but only within the period during which, by virtue

c. 27, s. 38.

3 & 4 Will. 4, of the provisions of this act, an entry might have been made upon the same land by the person bringing such writ or action if his right of entry had not been so taken away (ƒ).

Formedon still lies.

(f) The rights preserved by this saving were required to be enforced within the time allowed by the act, where a right of entry existed. By a will in 1789, an estate was devised to A. G. M. for life, with remainder as he should by deed or will appoint; and in default of appointment, remainder to the heirs of his body, with remainder over. In 1790, A. G. M. levied a fine to the use of himself in fee, and afterwards died without issue: it was held in an ejectment by the lessors of the plaintiff, claiming as heirs at law of A. G. M., that the fine created a discontinuance, and gave a tortious fee to A. G. M., and that his heir at law was consequently entitled to recover in ejectment, the remainders over being divested, and the rights of the remaindermen only capable of being enforced by real action. In such a case this section preserves the right of the remainderman to bring a formedon. (See Doe d. Gilbert v. Ross, 7 Mees. & W. 102; Seymour's case, 10 Rep. 96 a ; Doe d. Cooper v. Finch, 4 B. & Ad. 283; 1 Nev. & M. 130, Doe d. Jones v. Jones, 1 B. & C. 238; 2 D. & R. 373; Sugd. V. & P. 613 (11th ed.); 1 Hayes, Conv. 237, (5th ed.).)

In formedon the tenant, having demanded a view after a general imparlance, the demandant issued a writ of petit cape, which was held to be irregular; (Tolson v. Watson, 3 Bing. N. C. 770;) because the latter writ can only be awarded where a default has been committed by the tenant, and in this case there had been no such default; instead of suing out that writ, the demandant ought to have counterpleaded or demurred. Demand of view in formedon may be withdrawn on payment of costs, when the delay in the application is sufficiently accounted for. (Tolson v. Fisher, 3 Bing. N. C. 783; 4 Scott, 569.) The tenant in a writ of formedon having demanded a view, for the avowed purpose of obtaining more time than he could obtain upon a judge's order for the time to plead, the demandant having counterpleaded that the tenant was in possession of the land demanded, and of none other in the parish, the court allowed the latter to withdraw the demand of view on payment of costs, notwithstanding the propriety of the step had been the subject of discussion in a preceding term. (Tolson, dem., Watson, ten., 5 Scott, 77.)

No descent, warranty, &c. to bar a right of entry.

Descent.

DESCENT CAST, DISCONTINUANCE AND WARRANTY. 39. No descent cast, discontinuance, or warranty (g), which may happen or be made after the said thirty-first day of December, one thousand eight hundred and thirty-three, shall toll or defeat any right of entry or action for the recovery of land.

(g) A mere entry is not possession. Continual or other claim will no longer preserve any right of entry, or distress or action. (Ante, sects. 10, 11, p. 191.) By the common law, descents of corporeal inheritances in fee simple took away the entry of the party who had right; (Litt. s. 385;) as if a disseisor died seised, and the lands descended to his heir, the entry of the disseisee was thereby taken away unless there had been a continual claim; (Litt. s. 414;) and the like law was of an abatement and intrusion, and of the feoffees or donees of abators or intruders. But by stat. 32 Hen. 8, c. 33, the "dying seised of any disseisor of and in any lands, &c., having no title therein, shall not be deemed a descent to take away the entry of the person or his heir, who had lawful title of entry at the time of the descent, unless the disseisor has had peaceable possession for five years next after the disseisin, without entry or continual claim by the person entitled." If a disseisor died after five years' quiet possession, and the disseisee entered, the heir of the former might have maintained an ejectment, for the right of