Of the Right to Light and Air. Acquiescence. materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?" (Walter v. Selfe, 4 De G. & Sm. 322, adopted in Soltau v. De Held, 2 Sim. N. S. 133, and Crump v. Lambert, 3 Eq. 413; Bellamy v. Wells, 63 L. T. 635; see Jenkins v. Jackson, 60 L. T. 105). What would be a nuisance in one locality might not be so in another (Sturges v. Bridgman, 11 Ch. Div. 852). Where a man, by an act on his own land, such as burning bricks, causes so much annoyance to another in the enjoyment of a neighbouring tenement, as to amount prima facie to a cause of action, it is no answer that the act was done in a proper and convenient spot, and was a reasonable use of the land (Bamford v. Turnley, 3 B. & S. 66, overruling Hole v. Barlow, 4 C. B. N. S. 334). See Shotts Iron Co. v. Inglis, 7 App. Cas. 528; Reinhardt v. Mentasti, 42 Ch. D. 685; Cavey v. Ledbitter, 13 C. B. N. S. 470; Luscombe v. Steer, 15 W. R. 1191; and St. Helen's Co. v. Tipping, 11 H. L. C. 612, where Lord Westbury distinguishes the cases where material injury is done to property, and those where personal discomfort is produced. An injunction was granted to restrain brick burning (Beardmore v. Tredwell, 3 Giff. 683; Walter v. Selfe, 4 De G. & Sm. 315; Boreham v. Hall, 1870, W. N. 57; Roberts v. Clarke, 18 L. T. 49); and the emission of noxious vapours (Imperial Gas Co. v. Broadbent, 7 H. L. C. 600). The plaintiff must prove damage, visible, substantial, and actual (Salvin v. North Brancepeth Co., 9 Ch. 709). The fact of the plaintiff having come to the nuisance, does not disentitle him to relief (Tipping v. St. Helen's Co., 1 Ch. 66). As to how far the delicate nature of the plaintiff's trade can be taken into consideration, see Cooke v. Forbes, 5 Eq. 166; Robinson v. Kilvert, 41 Ch. D. 88. A weekly tenant can obtain an injunction (Jones v. Chappell, 20 Eq. 539), and tenants were added as co-plaintiffs by amendment at the time (House Property Co. v. H. P. Horsenail Co., 29 Ch. D. 190). As to liability of occupiers, see White v. Jameson, 18 Eq. 303; Broder v. Saillard, 2 Ch. D. 692; Jenkins v. Jackson, 60 L. T. 105. As to joining as co-plaintiffs the occupiers of several houses affected by the nuisance, see Truman v. L. B. & S. C. R. Co., 29 Ch. Div. 89; Umfreville v. Johnson, 10 Ch. 580; Hudson v. Maddison, 12 Sim. 416. Acquiescence in the erection of noxious works while they produce little injury does not warrant the subsequent extension of them to an extent productive of great damage (Bankart v. Houghton, 27 Beav. 425). See also, as to the effect of acquiescence in such a case, Williams v. Jersey, Cr. & Phil. 91; Savile v. Kilner, 26 L. T. 276; Sanders v. Manley, 1878, W. N. 181. LIMITATION OF ACTIONS AND SUITS. I. Limitation of time for the recovery of lund or rent, 3 & 4 Will. 4, c. 27. 1. 3 & 4 Will. 4, c. 27, s. 1, Interpretation clause. 2. Period of limitation fixed, and when right first accrues, ss. 2-15. 4. Concurrent rights, s. 20. 5. Operation of the statute in case of estates tail, ss. 21—23. 6. Limitation of time as to suits in equity, ss. 24-27. 7. Limitation of time between mortgagor and mortgagee, s. 28. 8. Limitation of time as to church property and advowsons, ss. 29-33. 9. Final extinction of right, s. 34. 10. Abolition of real and mixed actions, &c., 88. 36-39. 11. Limits of act, ss. 43, 44. II. Limitation of time for the recovery of money charged on land, legacies, arrears of dower, rent and interest, 3 & 4 Will. 4, c. 27, 88. 40-42. I. & II. Further limitation, 37 & 38 Vict. c. 57. III. Of the limitation of actions by or against executors in respect of injuries IV. Of the limitation of actions on simple contract, 21 Jac. 1, c. 16; 9 V. Limitation of time in actions against trustees, 51 & 52 Vict. c. 59, VI. Courts of equity and the Statutes of Limitation. I. LIMITATION OF TIME FOR THE RECOVERY OF LAND OR RENT. 3 & 4 WILLIAM IV. CAP. 27.—"An Act for the Limitation of Actions and Suits relating to Real Property, and for simplifying the Remedies for trying the Rights thereto." 1. Interpretation Clause. [24th July, 1833.] the act. "Land." Be it enacted, that the words and expressions hereinafter men- 3 & 4 Will. 4, tioned, which in their ordinary signification have a more con- c. 27, s. 1. fined or a different meaning, shall in this act, except where the Meaning of nature of the provision or the context of the act shall exclude the words in such construction, be interpreted as follows; (that is to say,) the word "land" (a) shall extend to manors, messuages, and all other corporeal hereditaments whatsoever (b), and also to tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole) (c), and also to any share, estate or interest in them or any of them, whether the same shall be a freehold or chattel interest (d), and whether freehold or copyhold, or held according to any other tenure; and the word c. 27, s. 1. "Rent." Person through whom another claims. 3 & 4 Will. 4, "rent" shall extend to all heriots (e), and to all services and suits for which a distress may be made (f), and to all annuities and periodical sums of money charged upon or payable out of any land (g) (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole); and the person through whom another person is said to claim shall mean any person by, through or under or by the act of whom, the person so claiming became entitled to the estate or interest claimed, as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat (h); and the word "person" shall extend to a body politic, corporate or collegiate, and to a class of creditors or other persons, as well as an individual (i); and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male. "Person." Number and gender. Construction of statutes of limitation generally. Subjects not included in this act. Tithes. The object of all statutes of limitation is to prevent claims at great distances of time when evidences are lost, and in all well-regulated countries the question of possession is held to be an important point of policy (Dundee Harbour v. Dougall, 1 Macq. H. L. C. 321, per Lord St. Leonards). The several statutes of limitations being all in pari materiâ ought to receive an uniform construction notwithstanding a slight variation in phrase, the object and intention being the same (Murray v. East India Co., 5 B. & Ald. 206, 215, per Abbott, C. J.) All these acts being, as they were emphatically termed by Lord Kenyon, statutes of repose, are to be liberally and beneficially expounded (Per Dallas, C. J., in Tolson v. Kaye, 6 Moore, 558; 3 Bro. & B. 217). See the maxims " Interest reipublicæ ut sit finis litium" (Broom's Legal Maxims, 328, 6th ed.) and " Vigilantibus non dormientibus jura subveniunt" (Broom, 844, 6th ed.) (a) Turnpike tolls are not within this act; and consequently more than six years' arrears of interest may be recovered on a mortgage of turnpike tolls notwithstanding the 42nd section of the act, a share of the tolls of a turnpike road not coming within the meaning of the word land as defined by the first section of this act (Mellish v. Brooks, 3 Beav. 22). But quarries and limestone land do come within that word (3 Ir. L. R. 521). The limitation prescribed by the 3 & 4 Will. 4, c. 27, did not apply to an action on a collateral covenant for payment of a rent charged on land, and the covenantee might recover damages for the breach of that covenant, notwithstanding his right to recover the rent-charge was barred by this statute (Manning v. Phelps, 10 Exch. 59). See now as to this, 37 & 38 Vict. c. 57, s. 8, post, p. 198. The word "rent" has an ambiguous meaning, being either the estate in the rent or the rent reserved under a lease. It has been confined in sect. 2 to the former meaning alone, so that a mere non-receipt of rent under a lease for more than the statutory period did not deprive the lessor of his right to rent under the lease (Gránt v. Ellis, 9 M. & W. 113; Irish Land Commission v. Grant, 10 App. Cas. 26). Lord St. Leonards said, rent, in the sense in which it is spoken of in the second section, means rent of inheritance, and it does not mean rent reserved by lease for example, or rent in the common and customary form of a render for property (Ely v. Bliss, 2 D. M. & G. 472). The word "tithes," like rent, has an ambiguous meaning, signifying either the estate in the tithes or the chattel itself, the fruits of the estate. 3 & 4 Will. 4, Tithes (other than tithes belonging to a spiritual or eleemosynary corpora- c. 27, s. 1. tion sole), are included in the word "land," which in its proper sense applies only to cases in which there are two parties, each claiming an estate in the land adverse to each other. It has been held, that the statute does not prevent the tithe-owner from recovering tithes as chattels from the occupier, although none had been set out for twenty years, but that the operation of the statute is confined to cases where there are two parties, each claiming an adverse estate in the tithes. Therefore a person who has received no tithes for the statutory period cannot recover the possession of them from another, who has for the same period received those tithes from the terre-tenant (Ely v. Cash, 15 M. & W. 617; Ely v. Bliss, 5 Beav. 574; 2 D. M. & G. 459; see Shannon v. Hodder, 2 Brady, Adair & Moore, 223, n.) The effect of time as between tithe-owner and occupier is determined by 2 & 3 Will. 4, c. 100 (See Salkeld v. Johnston, 1 Mac. & G. 242, where Lord Cottenham expressed his opinion that under that act the proof of the enjoyment of the discharge claimed for the prescribed time is a sufficient answer to a demand for tithes : see 2 Ex. 256; 2 C. B. 749). The cases on the construction of that act are collected, Shelford on Tithes, 391-398, 3rd ed., and Supplement, 47-86; and see Leach's Tithe Acts, 5th ed. Payments imposed in London by 37 Hen. 8, c. 12, are not within that act (Payne v. Esdaile, 13 App. Cas. 613). Tithes, moduses or compositions, belonging to a spiritual or eleemosynary corporation sole, are excepted from the operation of 3 & 4 Will. 4, c. 27. The time for recovering lands belonging to such a corporation is prescribed by 3 & 4 Will. 4, c. 27, s. 29, post. Tithe rent-charge not belonging to a spiritual or eleemosynary corpora- Tithe renttion sole is within the meaning of the word "rent" in sect. 2, and the charge. right thereto will be extinguished by non-payment for the statutory period (Irish Land Commission v. Grant, 10 App. Cas. 14). In the case of a tithe rent-charge belonging to a spiritual corporation sole, and which arose under the Irish Tithe Commutation Act (1 & 2 Vict. c. 109), the House of Lords held on the construction of the last-mentioned act that it was not a "composition" within the meaning of sect. 1 of 3 & 4 Will. 4, c. 27, s. 1, and accordingly fell within the general operation of the act (Irish Land Commission v. Grant, 10 App. Cas. 14). As to the recovery of arrears of tithes and tithe rent-charge, see note to Arrears of sect. 42, post. tithes and (b) Hereditament is a very comprehensive term, including whatever tithe rentmay be inherited, be it corporeal or incorporeal, real, personal or mixed charge. (Co. Litt. 6 a; 3 Rep. 2; Shep. Touch. 91). Hereditaments are of two Hereditasorts; corporeal, consisting wholly of substantial and permanent objects; ments. all of which may be comprehended under the general denomination of land (Co. Litt. 4; 2 Bl. Com. 17); and incorporeal, which are rights issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within the same (Ib. 20). Many of the latter are not within this act, but the periods of limitation for several incorporeal rights are prescribed by the stat. 2 & 3 Will. 4, c. 71 (ante, pp. 1-21). (c) Spiritual corporations are those of which not only the members Different composing it are spiritual persons, but of which the object of the institu- kinds of cortion is also spiritual, such as bishops, some deans, and prebendaries, all porations. archdeacons, parsons, and vicars, which are sole corporations; deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate (Co. Litt. 150 a; 1 Bl. Com. 471; 1 Kyd on Corporations, 22). Eleemosynary corporations are such as are constituted for the perpetual distribution of the free-alms or bounty of the founder of them to such persons as he has directed (1 Bl. Com. 471). These are of two general descriptions; hospitals for the maintenance and relief of poor and impotent persons, and colleges for the promotion of learning, and the support of persons engaged in literary pursuits, of which the greater 3 & 4 Will. 4, number are within the universities, and form component parts of these c. 27, s. 1. larger corporations; and others are out of the universities, and not necessarily connected with them. Between hospitals having a common seal, and colleges in the universities or out of them, there is no difference in legal consideration, the difference is only in degree; for where in an hospital the master and poor are incorporated, it is a college having a common seal by which it acts, although it have not the name of a college (Per Holt, Skinn. 484). There are many hospitals not incorporated in which the succession is kept up by trustees (10 Rep. 31, 35). There are other corporations which may be classed under the head of eleemosynary, as their object is, by means of trustees or governors incorporated, to carry into execution some public charity; such is the corporation created in the reign of Queen Anne, under the name of "The Governors of the Bounty of Queen Anne, for the Augmentation of the Maintenance of the Poor Clergy" (2 Anne, c. 11; 5 Anne, c. 24; 6 Anne, c. 27; 1 Geo. 1, stat. 2, c. 10; 3 Geo. 1, c. 20). And such are many corporations of trustees or governors of free schools (See 1 Kyd on Corporations, 25-27). All these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons (1 Ld. Raym. 6), and although they, in some things, partake of the nature, privileges and restrictions of ecclesiastical bodies (1 Bl. Com. 471). Each university of Oxford and Cambridge is a lay corporation and not eleemosynary, as particular colleges are, although some salaries are attached to some of their officers (R. v. Cambridge, 3 Burr. 1652; see Shelford on the Law of Mortmain and Charities, 8-34; Tudor's Charitable Trusts, 3rd ed.) Meaning of Heriots. Heriot service. Corporations aggregate consist of many persons, of which kind are the mayor and commonalty of a city, the head and fellows of a college, the master and brethren of an hospital, the dean and chapter of a cathedral church (10 Rep. 29 b; 11 Rep. 69 b). Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a corporation sole (Co. Litt. 43). So are archbishops, bishops, deans and prebendaries, distinct from their several chapters; and so is every parson and vicar (10 Rep. 29 b; Wood's Inst. 109; 1 Bl. Com. 470; 1 Kyd on Corporations, 20). Corporations are as liable to the operation of prescription as private persons (Dundee v. Dougall, 1 Macq. Ĥ. L. C. 317). (d) The term freehold, as denoting an estate of a given quantity, or rather of a peculiar quality, is opposed to the term chattel (Co. Litt. 43 b; 1 Burr. 108). An estate of freehold may be defined to be “an estate in possession, remainder, or reversion, in corporeal or incorporeal hereditaments, held for life, or some uncertain interest, created by will, or some other mode of conveyance, capable of transferring an estate of freehold, which may last the life of the devisee or grantee, or of some other person" (Watk. on Conv. by Morley and Coote, 63; Prest. on Estates, 200203; see observations on an Estate of Freehold, by Manning, 2 Jur. 459). All interests in land for a shorter period than a life, or, more properly speaking, all interests for a definite space of time, measured by years, months, or days, are deemed chattel interests (1 Prest. on Estates, 203), which may subsist in both corporeal and incorporeal hereditaments (Noy's Maxims, by Bythewood, 142, 357; Bac. Abr. Executors (H. 3)). Chattels real are such as concern the realty, as terms for years in land, the next presentation to a church (Dyer, 135 a), estates by statute-merchant, statute-staple, elegit, or the like (Co. Litt. 118 b). By the common law no estate of inheritance or freehold is comprehended under the word chattels. (e) Heriot is defined to be the best beast, or other thing, due to the lord on the death or alienation of his tenant. Heriots are usually divided into two sorts, heriot service, and heriot custom. The former are such as are due upon a special reservation in a grant or lease of lands (Lanyon v. Carne, |