3 & 4 Will. 4, ante divortium, writ of entry sur abatement, writ of entry quare c. 27, s. 36. ejecit infra terminum, or ad terminum qui præteriit, or causa matrimonii prælocuti, writ of aiel, besaiel, tresaiel, cosinage, or nuper obiit, writ of waste, writ of partition, writ of disceit, writ 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, 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.

Dower, writ of right of dower and

quare impedit abolished by 23 & 24 Vict.

c. 126, s. 26.

Dower.

Equitable relief in case of dower.

The words in italics have been repealed (37 & 38 Vict. c. 35).

(b) The right to bring real actions was preserved for a limited time by sects. 37 and 38 (post) (See Davies v. Lowndes, 6 M. & G. 529; 1 Phill. C. C. 328; and also Nesbit v. Rishton, 11 Ad. & Ell. 244; 6 Ad. & Ell. 103; 9 Ad. & Ell. 426; 2 P. & D. 706). It was doubted whether, since the passing of this section, an action of debt would lie for the recovery of the arrears of a rent in fee (Varley v. Leigh, 2 Exch. 450). It has since been decided that an action lies (Thomas v. Sylvester, L. R. 8 Q. B. 368; Ex p. Graham, 42 Ch. Div. 343; Searle v. Cooke, 43 Ch. Div. 519; see Whitaker v. Forbes, 1 C. P. Div. 51).

By the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, s. 26, no writ of right of dower, or writ of dower unde nihil habet, and no plaint for freebench or dower in the nature of any such writ, and no quare impedit shall be brought after the commencement of this act (10th October, 1860), in any court whatsoever, but where any such writ, action, or plaint would now lie, either in a superior or in any other court, an action may be commenced 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). See now the R. S. C. under the Jud. Acts.

A writ of right of dower lay when a widow had dower of part of the lands in the same vill, for then she could not have dower unde nihil habet against 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). And a plaint in the nature of a writ of dower lay in the manor court (4 Rep. 30 b; see R. v. Coggan, 6 East, 431, n.; Scott v. Kettlewell, 19 Ves. 335; Widowson v. Harrington, 1 Jac. & W. 532; Scriven on Cop. 69 et seq., 6th ed.) To entitle a woman to damages in dower, it must be alleged and proved that the husband died seised of an estate of inheritance (Jones v. Jones, 2 C. & J. 601).

Courts of equity showed 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

c. 27, s. 36.

relief having in his possession all the information necessary to enable her 3 & 4 Will. 4, to establish her rights (6 Ves. 89). Therefore a court of equity would assist a woman claiming dower, by putting out of her way a term which prevents her obtaining possession at law; but that was only as against an heir (Dudley v. Dudley, Prec. Ch. 241); or volunteer; not a purchaser (Radnor v. Rotherham, Prec. Ch. 65; but see Williams v. Lambe, 3 Br. C. C. 264, and note by Eden; and see Wilkins v. Lynch, 1 Hayes' Ir. Rep. 98). Upon the point whether a defence of a purchase for valuable considera- Plea of purtion without notice be an answer to a bill by a dowress against a bona fide chase for purchaser, Lord Thurlow held, that such a defence would bar an equitable, valuable but not a legal title (Williams v. Lambe, 3 Br. C. C. 264); which was fol- consideration lowed in Collins v. Archer (1 R. & M. 292), where it was held, that such a without defence would not be available against a legal title on a bill filed for an notice. account of tithes.

Before the Jud. Acts it was laid down generally that the defence could not be raised in the Court of Chancery in cases where that court exercised a legal jurisdiction concurrently with courts of law (Phillips v. Phillips, 4 D. F. & J. 217). And where, since the Jud. Acts, a plaintiff in the Chancery Division claimed possession of land, and production and delivery of documents, and the defendants raised this defence, and also pleaded possession, they were held not entitled to resist discovery (Ind Coope v. Emmerson, 12 App. Cas. 300).

If the wife be divorced à mensa et thoro, a court of equity would not assist her in recovering dower, but leave her to her remedy at law (Shute v. Shute, Prec. Chan. 111; Shelford on the Law of Marriage and Divorce, 420).

As to the recovery of arrears of dower, see 3 & 4 Will. 4, c. 27, s. 41, post, p. 185. And as to the law of dower generally, see the notes to 3 & 4 Will. 4, c. 105, post.

(c) In a proceeding by quare impedit the plaintiff must prove that he, or Quare impedit. those under whom he claims, have made a presentation to the living. This is the only legal evidence of the right (Cook v. Elphin, 5 Bligh, N. S. 126). As to the case of coparceners, see Gully v. Exeter (10 B. & C. 584; 5 Bing. 171; 2 M. & P. 105; 4 Bing. 525); Richards v. Macclesfield (7 Sim. 257); Pyke v. 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 (Storie v. 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. Hereford, 3 M. & Scott, 102; see Elvis v. 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 Harrington v. Lichfield (4 Bing. N. C. 77). If a deanery was in the presentation of the Crown as patron, or if the Crown had 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 was by quare impedit, and the Court of Queen's Bench never interfered by mandamus when that writ lay (R. v. Exeter, 12 Ad. & E. 512, 534).

By statute 4 & 5 Will. 4, c. 39, costs might be recovered in actions of quare impedit, and if plaintiff was non-suited, &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. Exeter, 6 Bing. N. C. 146).

(d) An ejectment is a possessory action, wherein the title to lands and Ejectment. 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, 825883, 13th ed.)

3 & 4 Will. 4,

[Sects. 37 and 38, which contained provisions as to saving rights c. 27, s. 39. in respect of real actions, have been repealed by 37 & 38 Vict. c. 35.]

No descent, warranty, &c.

Descent cast, Discontinuance and Warranty.

39. No descent cast, discontinuance, or warranty (g), which to bar a right may happen or be made, shall toll or defeat any right of entry or action for the recovery of land.

of entry. Descent.

Discontinu

ance.

Warranty.

(9) 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. 136). 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 possession belonged to him, although the mere right was in the disseisee (Smyth v. Tyndall, 2 Salk. 685). The doctrine of descent cast did not apply, if the claimant was under any legal disabilities during the life of the ancestor, either of infancy, coverture, imprisonment, insanity, or being out of the realm; because in all these cases there was no laches or neglect in the claimant, and therefore no descent took away his entry (Litt. 1. 3, c. 6); nor did it affect copyhold or customary estates, where the freehold is in the lord (Doe v. Danvers, 7 East, 299); nor cases where the party had not any remedy but by entry as a devisee (Co. Litt. 240 b; 7 East, 321. On descent cast, see Co. Litt. 237 b; Bac. Abr. Descent (F) (G) (H); Com. Dig. Descent (D); Roscoe on Real Actions, 81-87; Adams on Ejectment).

A discontinuance of estates in lands and tenements is defined by Lord Coke to be "An alienation made or suffered by tenant in tail, or by any that is seised in auter droit, whereby the issue in tail, or the heir or successor, or those in reversion or remainder, are driven to their action and cannot enter" (Co. Litt. 325 a). At common law, an estate might be discontinued five ways:-1. By feoffment. 2. By fine. 3. By common recovery. 4. By confirmation: and 5. By release with warranty. A grant by deed or fine, of such things as lie not in livery (Litt. s. 618; Co. Litt. 332 a), did not work any discontinuance. A feoffment made after 1st October, 1845, has no tortious operation (8 & 9 Vict. c. 106, s. 4).

A discontinuance of an estate tail could only be made by a tenant in tail in possession (Doe v. Jones, 1 B. & C. 243; Trevilian v. Lane, Cro. Eliz. 56; see 1 Rep. 76 a; Litt. s. 658; Co. Litt. 325 a). But the existence of a term of years prior to the estate of a tenant in tail did not prevent a fine levied by him from operating as a discontinuance (Doe v. Finch, 1 Nev. & M. 130). As to a prior estate by the curtesy, see Anderson v. Anderson, 30 Beav. 209; see further the notes to Doe v. Finch, sup., where much learning on the subject of discontinuance, &c., is collected (S. C., 4 B. & Ad. 283). As to discontinuance, see Bac. Abr. and Com. Dig. Discontinuance; Co. Litt. 325 a; 347 b, and notes by Butler; Roscoe on Real Actions, 43-53; 1 Prest. on Conv. and on Abst. Index; Roper on Husband and Wife, c. 2, s. 2; Doe v. Ross, 7 M. & W. 125.

As to the law of warranty, see Com. Dig. Guaranty; Co. Litt. 365 a; 393 b, and notes by Butler; Bac. Abr. Warranty; Shepp. T. 181-203;

Doe v. Jones, 1 Crompt. & Jerv. 528. By stat. 3 & 4 Will. 4, c. 74, s. 14, 3 & 4 Will. 4, all warranties of lands which shall be made after the 31st December, 1833, c. 27, s. 39. by any tenant in tail thereof, shall be absolutely void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail (See post).

[Sections 40, 41, 42 of this act are inserted pp. 176, 185, post.]

11. Limits of the Act.
Spiritual Courts.

43. No person claiming any tithes, legacy or other property, Act to extend for the recovery of which he might bring an action or suit at to the spilaw or in equity, shall bring a suit or other proceeding in ritual courts. 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 (h).

(h) The mode of recovering personal legacies in the ecclesiastical courts is stated in 3 Hagg. Eccl. R. 161, 162. See now, however, 20 & 21 Vict. c. 77, s. 23, by which it is provided that the Court of Probate, to which the jurisdiction of the ecclesiastical courts has been transferred, shall entertain no suit for legacies.

No action at law lay against an executor for a pecuniary legacy (Deeks Recovery of v. Strutt, 5 T. R. 690; see Southampton v. Graves, 8 T. R. 593; Atkins v. legacies by Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289, contra); nor against an action at law. administrator to recover a distributive share; nor against his executor, although he had promised to pay (Jones v. Tanner, 7 B. & C. 542; see Johnson v. Johnson, 3 Bos. & P. 169). But an action at law lay against an executor to recover a specific chattel bequeathed after his assent to the bequest (Doe v. Guy, 3 East, 120; Paramour v. Yardley, Plowd. 539; Westwick v. Wyer, 4 Rep. 28 b); also to recover a pecuniary legacy where the executor had admitted that he held the money to the legatee's use (Topham v. Morecraft, 8 E. & B. 972; Barlow v. Browne, 16 M. & W. 126). So an action of assumpsit for money had and received, and on an account stated, was maintainable by a residuary legatee against an executor "on the ground of a certain sum being received and retained to the plaintiff's use (Hart v. Minors, 2 C. & M. 700; see Gregory v. Harman, 1 M. & P. 209; 3 C. & P. 205; Corporation of Clergymen's Sons v. Swainson, 1 Ves. sen. 75; Reech v. Kennegal, Ib. 123; Rogers v. Soutten, 2 Keen, 598; Bothe v. Crampton, Cro. Jac. 612; Davis v. Reyner, 2 Lev. 3; Goring v. Goring, Yelv. 10; Rann v. Hughes, 7 T. R. 350, n.; Childs v. Monins, 2 Brod. & Bing. 460; 5 B. Moore, 282; Bradley v. Heath, 3 Sim. 543; Holland v. Clark, 1 Y. & Coll. N. C. 151; see Wms. Exors. 1941 et seq., 8th ed.) In an action against executors upon an account stated for a legacy, it is competent to the plaintiff to impeach any particular item or items on the credit side of the account (Rose v. Savory, 2 Scott, 199; 1 Hodges, 269; Gorten v. Dyson, 1 Brod. & B. 219; Moert v. Moessard, 1 M. & P. 8; Wasney v. Earnshaw, 4 Tyrw. 806; Roper v. Holland, 3 Ad. & Ell. 99). A testator devised lands in fee, after the determination of certain life estates, to A., B., and C., as tenants in common, subject to and charged with the payment of 2007., which he thereby bequeathed to and to be equally divided among the children of his niece. A. and B., during the life of one of the tenants for life, granted their reversion in two undivided third parts of the lands to mortgagees for 500 years: it was held,

3 & 4 Will. 4, that an action of debt could not be maintained against the termors for a c. 27, s. 43. share of the 2007. so bequeathed (Braithwaite v. Skinner, 5 M. & W. 313).

Act not to

extend to

Scotland nor

Scotland and Ireland.

44. Provided always, and be it further enacted, that this act shall not extend to Scotland; and shall not, so far as it relates

to advowsons to any right to permit to or bestow any church, vicarage or other ecclesiastical benefice, extend to Ireland (i).

in Ireland.

(i) The provisions of 3 & 4 Will. 4, c. 27, relating to advowsons, &c., were extended to Ireland by 6 & 7 Vict. c. 32, and 7 & 8 Vict. c. 27, and the words of this section excluding Ireland have been repealed (37 & 38 Vict. c. 35). See 32 & 33 Vict. c. 42.

This act applies to New South Wales (Day v. Day, L. R. 3 P. C. 751; Trustees Co. v. Short, 13 App. Cas. 793); and to New Zealand (Plimmer v. Wellington, 9 App. Cas. 708), but does not apply to Jamaica (Pitt v. Dacre, 3 Ch. D. 295). Where a Hindoo banker claimed as a creditor in an English administration action, the English statute applied (Finch v. Finch, 35 L. T. 235). But the Indian statute was held to govern the case of money in an English court representing land in India (Re Peat, 7 Eq. 302). As to which statute, see also Hay v. Gordon (21 W. R. 11). See also the questions raised as to bonds charged on the revenues of Oudh in Doss v. Secretary, &c. of India (1875, W. N. 59); and as to the Bombay Civil Service Fund, in Edwards v. Warden (1 App. Cas. 281). By the law of Lower Canada, the period of prescription is thirty years (Herrick v. Sixby, L. R. 1 P. C. 436; Macdonald v. Lambe, ib. 539). As to adverse possession in Nova Scotia, see Des Barres v. Shey (22 W. R. 273); and in Ceylon, see Clark v. Elphinstone (6 App. Cas. 164). See as to the period of limitation in New Brunswick, Lewin v. Wilson, 11 App. Cas. 639.

Raising the statute:

by pleading;

by demurrer.

Renewal of writ to save statute.

PLEADING AND PRACTICE AS TO THE STATUTE OF
LIMITATIONS.

By R. S. C. Ord. 19, r. 15, a party must raise by his pleading all such grounds of defence or reply as, if not raised, would take the opposite party by surprise or would raise issues of fact not arising out of the preceding pleadings, as, for instance, Statute of Limitations."

In Dawkins v. Penrhyn (4 App. Cas. 59; an action commenced in 1877, when demurrer was permitted), Earl Cairns held that in personal actions the statute must be pleaded; but that in the case of real property, where it was a question of title, the statute might be raised by demurrer (See further, Re Burge, Gillard v. Lawrenson, 57 L. T. 364; Noyes v. Crawley, 10 Ch. D. 31). Since Dawkins v. Penrhyn demurrer has been abolished, but in lieu thereof a party can raise by his pleading a point of law (R. S. C. Ord. 25).

Where an action is brought to recover land of which the defendant is in possession, the statute is often pleaded expressly (Lyell v. Kennedy, 18 Q. B. Div. 796; Pedder v. Hunt, ib. 565). In Heath v. Pugh (6 Q. B. Div. 353), it was said that in such a case the defence of the statute might be raised under the plea of possession in a general form (Ord. 21, r. 21).

Ord. 8, r. 1, provides that no original writ of summons shall be in force for more than twelve months from the date thereof. Ord. 6, r. 1, provides for the issue of concurrent writs, such writs only to be in force for the period during which the original writ is in force. Under Ord. 8, r. 1, however, upon application before the expiration of the twelve months, the writ or concurrent writ may for good reason be renewed for six months, and so from time to time. Under Ord. 64, r. 7, times may be enlarged.