« SebelumnyaLanjutkan »
3 & 4 Will. 4, particularly named (Plowd. 136, 137; 11 Rep. 68 b; 5 Rep. 14; 7 Rep.
and its effect would be to deprive the king of any prerogatige, right,
but is not within sect. 3 (Perry v. Eames, 1891, 1 Ch. 658).
crued sixty years before the then session of parliament, unless within that Crown to
time there had been a possession under such title; but this provision realty.
becoming daily more ineffectual by lapse of time, a permanent limitation 21 Jac. 1, c. 2. was introduced (See Co. Litt. 119 a, n. (1); 3 Inst. 188). And by statuto 9 Geo. 3,
9 Geo. 3, c. 16, it is provided, that the king shall not sue, &c., any c. 16.
persons, &c., for any lands, &c. (except liberties and franchises) on any
In the case of tithes where none had been received, it was held, that
meaning of being in charge").
1st section of the latter act, the Crown shall not hereafter sue any persons
stood insuper of record (24 & 25 Vict. c. 62, s. 3). Ao to Ireland see?! Adverse Where an entire manor or other district has been in charge to the possession Crown within sixty years, acts done in different parts of it by different against the
persons, such as the erection and occupation of lime-kilns for burning Crown. limestone found within the district, and of cottages for the purpose of
such occupation and the sale of lime so produced, do not amount to such
495). Adverse possession of Crown lands for less than sixty years was 3 & 4 Will. 4, not sufficient to support the plaintiff's title in an action of ejectment c. 27, s. 1. against a stranger (Goodtitle v. Baldwin, 11 East, 488).
By stat. 21 Jac. ì, c. 14, s. 1, it is enacted, “ that wheresoever the king, 21 Jac. 1, his heirs or successors, and such from or under whom the king claimeth, c. 14. and all others claiming under the same title under which the king claimeth, Practice in hath been or shall be out of possession by the space of twenty years, or Crown suits hath not or shall not have taken the profits of any lands, tenements, or hereditaments, within the space of twenty years before any information of intrusion brought or to be brought to recover the same: that in every such case the defendant or defendants may plead the general issue, if he or they so think fit, and shall not be pressed to plead specially; and that in such cases the defendant or defendants shall retain the possession he or they had at the time of such information exhibited, until the title be tried, found, or adjudged for the king.” Although the king can never be put out of possession in point of law by the wrongful entry of a subject, yet there may be an adverse possession in fact against the Crown. Therefore, after such an adverse possession by a subject for twenty years, the Crown could only recover land by information of intrusion; consequently ejectment would not lie at the suit of the grantee of the Crown, notwithstanding the rights of the Crown are not barred by the Statute of Limitations (Doe v. Morris, 2 Bing. N. R. 189). Rules have been made for assimilating the mode of procedure to that in ejectment and trespass on the common law side of the Court of Exchequer as nearly as may be, consistently with the rights and prerogatives of the Crown, and the provisions of the stat. 21 Jac. 1, c. 14, the mode of procedure to remove persons intruding upon the Queen's possession of lands, shall be distinct from that to recover profits or damages for intrusion (See Rules on Revenue side of the Court of Exchequer, made in pursuance of 22 & 23 Vict. c. 21, 22nd June, 1860, Nos. 21–38; 2 Chitty's Statutes, 613 et seq.; and also 28 & 29 Vict. c. 104, s. 31 et seq.)
The title of the Crown to lands, of which it has been out of possession for twenty years, may be tried in the information of intrusion itself, and need not be first found by inquest of office, the only effect of the statute 21 Jac. 1, c. 14, being to throw the onus of proving title in the first instance, in such a case, on the Crown (A. G. v. Parsons, 2 M. & W. 23). As to inquests of office, see now 28 & 29 Vict. c. 104, s. 52. See, as to evidence in Crown suits, Doe v. Roberts, 13 M. & W. 520.
Although the Statute of Limitations does not bind the Crown, yet Chose in
ellery part of the Crown cannot now be instituted, nor can a petition of right be na specilied camo presented, except within the same time, and subject to the same rules of
indre into reeds law and equity, as in the case of an action by or against a subject (47 & 48 Vict. c. 71, S. 3). "Under 02 Vecb.c.y $5.912 14°te cilen of ide
The Statutes of Limitation which affect the rights of the Duke of Corn- Statutes of wall are 7 & 8 Vict. c. 105, ss. 71-88; 23 & 24 Vict. c. 53; and 24 & 25 Limitation as Vict. c. 62 ; as to which, see Darb. & Bos. Stat. Lim. 413 ; Brown's Law to rights of of Limitation, 251, 415.
Cornwall. But though the Crown was not bound by the Statute of Limitations, yet
3 & 4 Will. 4, a grant from it may be presumed from great length of possession, not c. 27, s. 1. because the court really thinks a grant has been made, but it presumes
the fact for the purpose and from a principle of quieting the possesof grants
sion (Hull v. Horner, Cowp. 102, 215). Thus grants from the Crown from the
of markets and the like, after an uninterrupted enjoyment of twenty Crown.
years (11 East, 419) have been presumed. So an enfranchisement of a
(A. G. v. Hotham, 1 T. & R. 210). Presumption But although grants on record have been presumed, there seems to of inrolments be no instance of the presumption of an inrolment of a deed which and registra- was made essential by statute (Doe v. Waterton, 3 B. & Ald. 149, 151; tion.
Wright v. Smythies, 10 East, 409). It might be otherwise if some foundation were laid for raising a presumption by showing that there was a chasm in the records corresponding with the date of the supposed conveyance (Allen v. Walker, 1 Jac. & W. 619). The registry of a deed of lands in a register county will not be presumed (Doe v. Hirst, 11 Price, 475). An inrolment of a tithe award was presumed where the
usage of paying tithe was shown (Macdougall v. Purrier, 2 Dow & Ci. Port duties. 135, cited 8 Q. B. 580). It seems that where port duties are claimed
under a grant from the Crown, which appears from the evidence to be inrolled, but which is not produced by the plaintiff, the jury ought not to be directed to presume such grant upon mere evidence of usage (Brune v. Thompson, 4 Q. B. 543). As to the presumption that a claim for port duties had a legal origin, see Foreman v. Whitstable (L. R. 4 H. L. 266),
and cases there cited. Presumption After long possession the court will even presume an act of parliament of an act of in order to protect a right (A. G. v. Ewelme. Hospital, 17 Beav. 366), but parliament. not the passing of an act of parliament within the last 250 years, on an
important subject of the most general interest, of which no vestige can be found (R. v. Ereter, 12 Ad. & Ell. 532, 533). Jessel, M. R., refused to presume an act of parliament as an origin for an alleged right (Chilton v. London, 7 Ch. D. 733). See further, 1 Taylor, Ev. 144, 7th ed.
2. Period of Limitation fired, and when Right first accrues.
Twenty Years. No land or 2. After the thirty-first day of December, one thousand eight rent to be
hundred and thirty-three, no person shall make an entry or recovered, but
distress, or bring an action to recover any land or rent, but 3 & 4 Will. 4, within twenty years next after the time at which the right to
c. 27, s. 2. make such entry or distress, or to bring such action, shall have within twenty first accrued to some person through whom he claims, or if such years after the right shall not have accrued to any person through whom he right of action
accrued the claims, then within twenty years next after the time at which claimant, or the right to make such entry or distress, or to bring such action, some person shall have first accrued to the person making or bringing the he claims.
whose estate same (k).
(k) From the 1st January, 1879, sect. 1 of 37 & 38 Vict. c. 57 (post, p. 194), 37 & 38 Vict. has, by sect. 9 of the same act, been substituted for sect. 2 of 3 & 4 Will. 4, c. 67. c. 27. Sect. 1 of 37 & 38 Vict. c. 57, fixes the period of limitation for the recovery of land or rent at twelve years, and also expressly includes "suits, but is in other respects similar to sect. 2 of 3 & 4 Will 4, c. 27. The following note has reference to the last-mentioned section.
Where the claim is to the possession of land, the real right is the right of entry, and the right of action is only given to enforce the right of entry (Magdalen Hospital v. Knotts, 8 Ch. Div. 727). By this section the right of entry is taken away unless an entry be made within the statutory period computed from the right first accruing (Holmes v. Newlands, 11 Ad. & El. 44; 8 Q. B. 679).
This section governs cases which fall within its general words, even This section though not included among the instances given in sect. 3. A testator governs cases charged an annuity on land, payable quarterly, with a power of distress not included if the annuity should be in arrear for twenty days after any quarterly day. among The testator died in 1804, and on the 17th March, 1835, the defendants instances in
sect. 3. distrained for twenty-nine years' arrears of the annuity, ending at Christmas, 1834. The right to make a distress for the annuity first James v. accrued to the annuitant in April, 1805. It was held that the claim to Salter. the annuity was barred. Tindal, C. J., in giving judgment, said “ that the case must have been governed by the second section, if that section had stood alone, cannot be doubted; and upon a more close examination of the third section, the object and intent of it seems to us to be no mor than this : to explain and give a construction to the enactment contained in the second clause, as to the time at which the right to make a distress for any rent shall be deemed to have first accrued,' in those cases only in which doubt or difficulty might occur; leaving every case which plainly falls within the general words of the second section, but is not included amongst the instances given by the third, to be governed by the operation of the second” (James v. Salier, 3 Bing. N. C. 553; approved in House of Lords, Irish Land Commission v. Grant, 10 App. Cas. 27; see Magdalen Hospital v. Knotts, 8 Ch. Div. 727). And in a case where it was held that the right of a mortgagee to recover possession first accrued (within the above section), at the date of a foreclosure order, it was said by Earl Cairns, that sect. 3, in defining when the right shall be deemed to have accrued, is not necessarily exhaustive (Pugh v. Heath, 7 App. Cas. 235).
Where a lessee entered under a lease granted by a charitable corpora- Void lease. tion in 1783, which the court held have been absolutely void, and an action was brought in 1876 claiming possession of the demised land, it was held by the House of Lords that the lessees must be taken to have been in possession from 1783 without any title whatever, and that the rights of the corporation were barred by this section (Magdalen H03pital v. Knotts, 4 App. Cas. 324 ; see Webster v. Southey, 36 Ch. D. 9). In the courts below, the same lease was treated as voidable only; and it was held by the Court of Appeal (overruling Jessel, M. R., 5 Ch. D. 175) that the period of limitation ran from the granting of the lease (8 Ch. Div. 709). Where a lessor permitted his lessee during the continuance of the lease Landlord and
3 & 4 Will. 4, to pay no rent for the statutory period, time ran against the lessor's right
accruing under the fourth branch of the third section (Doe v. Oxenham,
action accrued (Eccl. Commissioners v. Rowe, 5 App. Cas. 741).
reserved on leases for years, but is confined to rents existing as an inGrant v. Ellis. heritance distinct from the land, and for which before the statute the
party entitled might have had an assize, such as ancient rents service,
Angell, 9 Q. B. 328, quoted under sect. 9, post.
is said to claim as meaning any person by, through, or under, or by the
tenant to compel admittance by the lord was a suit to recover land within within this
this section (Walters y. Webb, 5 Ch. 531); So was an action for an assignsection.
ment of dower (Marshall v. Smith, 5 Giff. 37). A foreclosure action is an
Stead, 2 Ch. D. 713, 718).
tain period was limited by stat. 32 Hen. 8, c. 2, which enacted that no 32 Hen. 8, person should maintain any writ of right, or make any prescription, title
or claim of, to or for any manors, lands, tenements, rents, annuities, com-