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3 & 4 Will. 4, c. 27, s. 1.

Statutes of limitation as to rights of Crown to

realty.

particularly named (Plowd. 136, 137; 11 Rep. 68 b; 5 Rep. 14; 7 Rep. 32; see Bac. Abr. Prerogative (E.)).. But where a statute is general, and its effect would be to deprive the king of any prerogative, right, title, or interest, he is not bound unless specially named (11 Rep. 68), and was held not to be within the Statute of Limitations (Br. St. Lim. 67), nor the statute of 13 Edward 1, st. 1, c. 5, which makes plenarty for six months a good plea in quare impedit (11 Rep. 68; Plowd. 244). It was said by Lord Romilly that 3 & 4 Will. 4, c. 27, does not affect suits by the Att. Gen. to recover property belonging to the Crown (18 Beav. 246); and in Rustomjee v. The Queen (1 Q. B. D. 491, 492), it was said that the Crown cannot be bound by the Statute of Limitations which has relation only to actions between subject and subject. In the same case the statute was held not to apply to a petition of right. The Crown comes expressly within 2 & 3 Will. 4, c. 100, for shortening the time required in claims of modus or discharge from tithes. The Crown is also expressly within sects. 1 and 2 of 2 & 3 Will. 4, c. 71, ante, pp. 1, 4; but is not within sect. 3 (Perry v. Eames, 1891, 1 Ch. 658).

By stat. 21 Jac. 1, c. 2, the king was disabled from claiming any manors, lands, or hereditaments, except liberties and franchises, under a title accrued sixty years before the then session of parliament, unless within that time there had been a possession under such title; but this provision 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 statute 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 title which has not first accrued within sixty years before the commencement of such suit, unless he has been answered the rents within that time, or they have been in charge, or stood insuper of record; and the subject shall quietly enjoy against the king, and all claiming under him, by patent, &c. This statute was extended to Ireland by 48 Geo. 3, c. 47, as to which, see Tuthill v. Rogers, 6 Ir. Eq. R. 429; 1 J. & Lat. 36.

24 & 25 Vict. c. 62.

Adverse

possession against the Crown.

In the case of tithes where none had been received, it was held, that the accounts of the auditors of the revenue, in which the tithes had been entered and returned nil, were sufficient proof that they had been “duly in charge" (A. G. v. Eardley, 8 Price, 73; see 3 Inst. 189, as to the meaning of being in charge").

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The stat. 9 Geo. 3, c. 16, is amended by 24 & 25 Vict. c. 62; and by the 1st section of the latter act, the Crown shall not hereafter sue any persons for real property (other than liberties or franchises) which such persons or their ancestors have held or taken the profits by the space of sixty years before the commencement of suit, by reason only that the same real property, or the rents thereof, have been in charge to the Crown, or stood insuper upon record within the said space of sixty years. The Crown shall not, for the purposes of the act 9 Geo. 3, c. 16, be deemed to have been answered the rents of real property which shall have been held, or of which the rents shall have been taken by any person by the space of sixty years before the commencement of any action, as mentioned in that act, by reason only of the same real property having been parcel of any manor of which the rents shall have been answered to the Crown, or some other person under whom the Crown claims or shall thereafter claim as aforesaid or of any manor which shall have been duly in charge to the Crown or stood insuper of record (24 & 25 Vict. c. 62, s. 3). As to Ireland see 28

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Where an entire manor or other district has been in charge to the Crown within sixty years, acts done in different parts of it by different persons, such as the erection and occupation of lime-kilns for burning 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 an adverse possession as to displace the title of the Crown to the district, although they may have been continued for above sixty years (Doe v. Roberts, 13 M. & W. 520).

The statute 9 Geo. 3, c. 16, does not give a title, it only takes away the right of suit of the Crown, or those claiming from the Crown, against such as have held an adverse possession against it for sixty years (11 East,

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. 1, 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 where the claim of the Crown is only a derivative right, it must stand in action vested the same situation as its principal. Therefore, the statute may be pleaded in the Crown. to a scire facias issued by the Crown against the drawer of a bill of exchange, which was barred in the hands of the Crown debtor, upon the ground that the Crown is only entitled to its debtor's right, and cannot create or reserve a right, if none existed, or it has become barred (R. v. Morrall, 6 Price, 24). But where a right has vested in the Crown before the statute has run against the former owner, the rights of the Crown are not barred or affected by the statute, as the Crown is not within its operation (Lambert v. Tayler, 4 B. & C. 138; see Tayler v. A. G., 10 Sim. 413, as to course of proceeding by a subject to enforce a claim of property against the Crown; Re Robson, 2 Phil. 64; Re De Bode, Ib. 85; see 23 & 24 Vict. c. 34, as to petitions of right and the orders thereon, 8 Jur. N. S. 283, Part II.)

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With respect to the personal estate of a deceased, proceedings on the part of the Crown cannot now be instituted, nor can a petition of right be presented, except within the same time, and subject to the same rules of law and equity, as in the case of an action by or against a subject (47 & 48 Vict. c. 71, s. 3). Under 62 Vid. C. 7 $5.12 14, the con of the X 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. But though the Crown was not bound by the Statute of Limitations, yet

Duke of
Cornwall.

Presumption

c. 27, s. 1.

of grants from the Crown.

3 & 4 Will. 4, a grant from it may be presumed from great length of possession, not 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 possession (Hull v. Horner, Cowp. 102, 215). Thus grants from the Crown of markets and the like, after an uninterrupted enjoyment of twenty years (11 East, 419) have been presumed. So an enfranchisement of a copyhold may, upon sufficient evidence, be presumed against the Crown (Roe v. Ireland, 11 East, 280). So where the title of a family to an advowson was evidenced by deeds and conveyances for a period of nearly 140 years, and there had been three presentations by them and none by the Crown, it was held, that a grant from the Crown might be presumed (Gibson v. Clark, 1 Jac. & W. 159; see 3 T. R. 158). Letters patent from the Crown have been presumed (Picking v. Stamford, 2 Ves. jun. 282); but a grant which would have been against a statute was not presumed (Goodtitle v. Baldwin, 11 East, 495). In a case where Charles I. had granted the soil between high and low water marks along the coast of the county of Southampton, but the Crown remained in possession for upwards of 150 years after the grant, this was held to create a presumption against the grant (Parmeter v. A. G., 1 Dow, 316). An objection to a title that two fee-farm rents, created by letters patent by James I., were not shown to have been extinguished, was overruled, it being proved that no claim had been made by the Crown of the rent from the year 1706, and no proof of any previous claim (Simpson v. Gutteridge, 1 Madd. 609; see Flower v. Hartopp, 12 L. J. Ch. 507). A grant from the Crown of undefined shares in land will not be held void for uncertainty after long modern possession, for a supplementary grant may be presumed (Des Barres v. Shey, 29 L. T. 592). Enjoyment of property for 110 years by a parish, although no conveyance appeared in evidence, was held conclusive proof of ownership against the Crown (A. G. v. Hotham, 1 T. & R. 210).

Presumption of inrolments and registra

tion.

Port duties.

Presumption of an act of parliament.

But although grants on record have been presumed, there seems to be no instance of the presumption of an inrolment of a deed which was made essential by statute (Doe v. Waterton, 3 B. & Ald. 149, 151; It might be otherwise if some Wright v. Smythies, 10 East, 409). 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 & Cl. 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.

After long possession the court will even presume an act of parliament in order to protect a right (A. G. v. Ewelme. Hospital, 17 Beav. 366), but 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. Exeter, 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.

No land or
rent to be

recovered, but

2. Period of Limitation fixed, and when Right first accrues.Twenty Years.

2. After the thirty-first day of December, one thousand eight hundred and thirty-three, no person shall make an entry or

c. 27, s. 2.

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 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 accrued to the right of action 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. same (k).

whose estate

(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. 57. 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.

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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).

sect. 3.

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 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 more 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. Saller, 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).

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Where a lessee entered under a lease granted by a charitable corpora- Void lease. tion in 1783, which the court held to 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 Hospital 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

S.

I

tenant.

3 & 4 Will. 4, c. 27, s. 2.

Rent within this section.

to pay no rent for the statutory period, time ran against the lessor's right to bring ejectment from the determination of the lease, his right of action accruing under the fourth branch of the third section (Doe v. Oxenham, 7 M. & W. 131). Nor did he lose his right to rent, the word "rent" in the second section not including rents reserved on leases for years (Grant v. Ellis, 9 M. & W. 113; Re Turner, 11 Ir. Ch. R. N. S. 304; Irish Land Commission v. Grant, 10 App. Cas. 26). So long as the relation of landlord and tenant under a lease in writing subsists as a legal relation, the landlord's right to rent is not barred by non-payment for however long a time (Archbold v. Scully, 9 H. L. C. 360). Where a lease was renewed, the landlord's estate became an estate in possession, and his right of action accrued (Eccl. Commissioners v. Rowe, 5 App. Cas. 741).

The word "rent" in the second section of the act does not include rents 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

Issue in tail.

Actions and suits to recover land within this section.

Limitation of
real actions
before 3 & 4
Will. 4,
c. 27.

32 Hen. 8,
c. 2.

party entitled might have had an assize, such as ancient rents service, fee-farm rents, or the like (Grant v. Ellis, 9 M. & W. 113; Irish Land Commission v. Grant, 10 App. Cas. 26). The word is used to express rents which are a charge on land (Paget v. Foley, 2 Bing. N. C. 688; see 1 Real Prop. Report, 50). An additional rent in the nature of a penal rent reserved by indenture of demise between landlord and tenant was held not to be within the section (Daly v. Bloomfield, 5 Ir. L. R. 65). As to the use of the word "rent" in the statute, see further, Doe v. Angell, 9 Q. B. 328, quoted under sect. 9, post.

The first section interpreting the person through whom another person is said to claim as meaning 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 issue in tail," it has been laid down that by virtue of the first and second sections an ordinary tenant in tail would lose his right after want of possession for the statutory period in the time of his ancestor (Abergavenny v. Brace, L. R. 7 Ex. 152, 172). But a statutory entail (as that of the Abergavenny estates) is not within these words (16, 155, 172).

The right of a lord to enter and seize copyholds quousque was barred after seventy years (Re Lidiard, 42 Ch. D. 254). A suit by a copyhold tenant to compel admittance by the lord was a suit to recover land within this section (Walters v. Webb, 5 Ch. 531). So was an action for an assignment of dower (Marshall v. Smith, 5 Giff. 37). A foreclosure action is an action to recover land within this section (Harlock v. Ashberry, 19 Ch. Div. 539; Hugill v. Wilkinson, 38 Ch. D. 480). A mortgagee's petition to recover arrears of interest out of a fund in court, representing the mortgaged property was held analogous to a suit to recover land (Re Stead, 2 Ch. D. 713, 718).

By the common law there was no stated or fixed period within which it was necessary to commence actions, but afterwards certain remarkable events were from time to time selected for that purpose, as the return of King John from Ireland, and the coronation of Henry the Third. A certain period was limited by stat. 32 Hen. 8, c. 2, which enacted that no person should maintain any writ of right, or make any prescription, title or claim of, to or for any manors, lands, tenements, rents, annuities, commons, pensions, portions, corodies, or other hereditaments of the possession of his or their ancestor or predecessor, and declare and allege any further seisin or possession of his or their ancestor or predecessor, but within sixty years next before the teste of the said writ, or next before the said prescription, title or claim so made. Actions upon the possession of the ancestor of the party claiming were limited to fifty years; and those upon the seisin or possession of the party himself to thirty years; and formedons in remainder or reverter were required to be sued within fifty years. The writ of intrusion came within the stat. 32 Hen. 8, c. 2, and not within the stat. 21 Jac. 1, c. 16, and the limitation of time for suing out such writ was fifty years (See Peircey v. Gardner, 3 Bing. N. C. 748). Dignities were held not to be within the Statute of Limitations (In the barony of

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