XXIX. Provided always, That it shall be lawful for any archbishop, No. II. bishop, dean, prebendary, parson, vicar, master of hospital, or other 3 & 4 W. 4, spiritual or eleemosynary corporation sole, to make an entry or distress c. 27. or to bring an action or suit to recover any land or rent within such period as herein-after is mentioned next after the time at which the No lands or right of such corporation sole, or of his predecessor, to make such entry rents to be reor distress or bring such action or suit shall first have accrued; (that is covered by to say,) the period during which two persons in succession shall have ecclesiastical or held the office or benefice in respect whereof such land or rent shall be eleemosynary claimed, and six years after a third person shall have been appointed corporations thereto, if the times of such two incumbencies and such term of six years taken together shall amount to the full period of sixty years; and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will, with the time of the holding of such two persons and such six years, make up the full period of sixty years; and after the said thirty-first day of December one thousand eight hundred and thirtythree no such entry, distress, action, or suit shall be made or brought at any time beyond the determination of such period. (1) sole but within two incumbencies and six years, or sixty years. XXX. That after the said thirty-first day of December one thousand No advowson eight hundred and thirty-three no person shall bring any quare impedit to be recovered or other action or any suit to enforce a right to present to or bestow any but within three church, vicarage, or other ecclesiastical benefice, as the patron thereof, incumbencies after the expiration of such period as hereinafter is mentioned; (that is or sixty years. to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as with the times of such incumbencies will make up the full period of sixty years. (2) XXXI. Provided always, That when on the avoidance, after a clerk Incumbencies shall have obtained possession of an ecclesiastical benefice adversely to after lapse to be the right of presentation or gift of the patron thereof, a clerk shall be reckoned withpresented or collated thereto by his Majesty or the ordinary by reason of in the period. a lapse, such last-mentioned clerk shall be deemed to have obtained pos- but not incum ment of the mortgagor's title, was a bar in equity to the claim of the latter; 2 J. & W. 158. But if within the twenty years the mortgagee had kept accounts, or otherwise dealt with the property as mortgagee, he was not protected by the mortgagor's negligence; 6 Mad. 181; S. C. 1 Ves. &B. 536. So an acknowledgment to a third party, as an assignment by the mortgagee of his interest, treating it as a mortgage; 4 Ves. 478; or recognizing it in a will, or in any other deed, as such 2 Eq. Čas. Abr. 600; 2 Br. C. C. 399; 13 Ves. 455; 1 Sim. & S. 347; was held to preserve the mortgagor's right to redeem. And a parol acknowledgment of the mortgage within twenty years was sufficient, 6 Mad. 274; but the proof must have been clear and unimpeachable, 2 Cox, 295. (1) Ecclesiastical corporations, and ecclesiastical persons cised in right of their churches, were not within the former statutes of limitations. Eut although neither the acts nor neglect of ecclesiastical persons barred their successors, yet incumbents, by submitting to an adverse possession, or by doing other acts, might be individually bound; Plowd. 358, 375, n.; 4 B. & A. 579 ; 5 B. & C. 696; Ecclesiastical persons are also within the act shortening the time of prescription in certain cases (2 & 3 W. 4, c. 71), see ante. And their claims are greatly limited by the modus act (2 & 3 W. 4. c. 100.) See Part II., Class 2, Tithes. (2) By the 1st Mary, stat. 2, c. 5, (extended to Ireland by the 10th Car. 1, st. 2, c. 6,) it was enacted, That the 32d H. 8, c. 2, should not extend to a writ of right of advowson, quare impedit, assize of darreign presentment nor jus patronatus, but the time of seisin to be alleged in such cases should be as it was at the common law, before the making of the said statute, which was from the commencement of the reign of Richard the first. By the 7th Anne, c. 18, (extended to Ireland, by 1 G. 2, c. 23, see Evans's Statutes, Part I., Class 2,) it was provided, That no usurpation should displace the estate of the patron, and that he might present or maintain his quare impedit upon the next avoidance, notwithstanding such usurpation. This enactment took away all limitations of suits respecting the rights of patronage. See 3 Bl. Comm. 250. No. II. 3 & 4 W. 4, c. 27. bencies after promotions to bishopricks. When person claiming an advowson in session adversely to the right of presentation or gift of such patron as aforesaid; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this act, be deemed a continuation of the incumbency of the clerk so made bishop. XXXII. That in the construction of this act every person claiming a right to present to or bestow any ecclesiastical benefice, as patron thereof, by virtue of any estate, interest, or right which the owner of an estate tail in the advowson might have barred, shall be deemed to be a after an estate person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action, or suit, shall be limited accordingly. remainder, &c. tail, shall be barred. No advowson XXXIII. Provided always, That after the said thirty-first day of to be recovered December one thousand eight hundred and thirty-three no person shall after 100 years. bring any quare impedit or other action or any suit to enforce a right to present to or bestow any ecclesiastical benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share, or right held or derived under the same title. At the end of the period of limitation the right of the party out of possession to be extinguished. Receipt of rent to be deemed receipt of fits. pro Real and mixed actions abo 31st Decem ber 1834, XXXIV. That at the determination of the period limited by this act to any person for making an entry or distress, or bringing any writ of quare impedit or other action or suit, the right and title of such person to the land, rent, or advowson for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period, shall be extinguished. (1) XXXV. That the receipt of the rent payable by any tenant from year 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. XXXVI. That no writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, writ of lished after the right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, writ de rationabilibus 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 theolonio, 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 communein 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 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 except for dower, quare impedit, and ejectment. (1) The former statutes of limitation were held not to bar the right, but only the remedy, 1 Saund. 283, a. n; 2 B. & Ad. 413. The present act has wisely put an end to such an absurd distinction. No. II. mixed (except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, (1) or an ejectment,) and no plaint in the 3 & 4 W. 4, 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. c. 27. XXXVII. Provided always, That when, on the said thirty-first day of Real actions December one thousand eight hundred and thirty-four, any person who may be brought shall not have a right of entry to any land shall be entitled to maintain until the 1st any such writ or action as aforesaid in respect of such land, such writ June 1835. 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 herein-before limited shall have expired. real actions XXXVIII. Provided also, That when, on the said first day of June Saving the one thousand eight hundred and thirty-five, any person whose right of rights of perentry to any land shall have been taken away by any descent cast, dis- sons entitled to continuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought only at the after the said first day of June one thousand eight hundred and thirty- of the act, &c. five, but only within the period during which by virtue 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. commencement XXXIX. That no descent cast, discontinuance, or warranty, (2) which No descent, may happen or be made after the said thirty-first day of December one warranty, &c. thousand eight hundred and thirty-three shall toll or defeat any right of to bar a right of entry or action for the recovery of land. entry. XL. That after the said thirty-first day of December one thousand Money charged eight hundred and thirty-three no action or suit or other proceeding upon land and shall be brought, to recover any sum of money secured by any mort- legacies to be gage, judgment, or lien, or otherwise charged upon or payable out of any deemed satisland or rent, at law or in equity, or any legacy, but within twenty fied at the end years next after a present right to receive the same shall have accrued to twenty years if there shall be some person capable of giving a discharge for or release of the same, no interest paid unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the ledgment in right thereto shall have been given in writing signed by the person writing in the by whom the same shall be payable, or his agent, to the person entitled meantime. thereto or his agent; and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one, was given. (3) (1) See the act giving costs in quare impedit, post, Part IV., Class XI. or acknow (2) By the 3 & 4 W. IV. c. 74, s. 14, all warranties of lands after the 31st December 1833, by tenants in tail are declared wholly void. See ante, Part II, Class 1; Fines and Recoveries. It is to be observed that in consequence of the abolitions of fines by the above act, a title to lands can no longer be acquired by a fine levied with proclamations and nonclaim for five years, under the provisions of the 4 H. 7, c. 24. (3) Previous to this act, if a mortgagee continued in possession, and there had been neither payment nor demand of principal or interest for twenty years, a court of equity would presume payment, 1 Chan. Rep. 59, 105; Trash v. White, Br. C. C. 289; Christopher v. Sparke, 2 Jac. & Walk. 228; Cooke v. Soltau, 2 Sim. and St. 154; but such presumption might be rebutted by circumstances, and the payment of interest, even in part of the debt, would keep the whole alive. Loftus v. Smith; 2 Sch. & L. 642. So a lapse of twenty years raised a presumption that a judgment had been satisfied, Peake's Ev. 25 n.; Kemys v. Ruscomb, 2 Atk. 45; Willaume v. Gorges 1 Campb. 217. Also, it seems, that the lapse of twenty-one years after the testator's death, without any demand of legacy, would have been sufficient to raise a presumption of payment, Montresor v. Williams, 1 Rop. on Leg. 792, 2d ed. In a recent case this doctrine received great consideration, and there it was held that a party was barred, by length of time, who had bought a legacy which was assigned to him twenty-seven years after the testator's death, and four years more had elapsed before he filed his bill; Campbell v. Graham, 1 Russ. & M. 453. No. II. 3 & 4 W. 4, c. 27. six years. XLI. That after the said thirty-first day of December one thousand eight hundred and thirty-three no arrears of dower, nor any damages on account of such arrears, shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit. (1) dower to be recovered for more than six years. No arrears of No arrears of XLII. That after the said thirty-first day of December one thousand rent or interest eight hundred and thirty-three no arrears of rent or of interest in respect to be recovered of any sum of money charged upon or payable out of any land or rent, for more than or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action, or suit but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent: Provided nevertheless, That where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. (2) Act to extend courts. XLIII. That after the said thirty-first day of December one thousand to the spiritual eight hundred and thirty-three no person claiming any tithes, legacy, or other property for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in 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. Act not to exXLIV. Provided always, That this act shall not extend to Scotland; tend to Scot- and shall not, so far as it relates to any right to permit to or bestow any land, nor to ad- church, vicarage, or other ecclesiastical benefice, extend to Ireland. vowsons in Ireland. Limitation of [No. III.] 3 & 4 W. 4. c. 42.-An Act for the further III. That all actions of debt for rent upon an indenture of demise, action of debt all actions of covenant or debt upon any bond or other specialty, and all on specialties, actions of debt (3) or scire facias upon any recognizance, and also all &c. (1) Before this act there was no limitation to a claim of arrears of dower either at law or in equity; see Oliver v. Richardson, 9 Ves. 222. See the recent statute amending the law of dower. See ante, Part II, Class I. (2) This clause contains no exception in favour of persons under disabilities; and Sir E. Sugden suggests that it "should be modified without loss of time, or the grossest injustice will be committed upon the just rights of legatees and others, particularly infant legatees.' Vend. & Purch. 1 vol. 411 n. last ed. (3) The object of this clause was, to fix a period of limitation for such actions as had been decided not to be within the 21st Jac. 1, c. 16. It was held that an action of debt for rent reserved on a lease by indenture was out of that statute, the lease by indenture being equal to a specialty; Hutt, 109; 1 Saund. 38. Also an action of debt for an escape was not within the statute, not only because it is founded in maleficio, and arises on a contract in law, which is different from those actions of debt on a lending or contract mentioned in the statute, but also because it is grounded on 1 Rich. 2, c. 12, which first gave an action of debt for an escape, there being no remedy for creditors before, but by action on the case; 1 Saund. 37; Jones v. Pope, 1 Lev. 191; 2 Keb. 903; 1 Sid. 305. Neither did the statute extend to actions of covenant, nor to any actions of debt in specialties, or other matter of a higher nature; 1 Saund. 38. Thus a scire facias being actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages, or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of parliament, shall be commenced and sued within the time and limitation herein-after expressed, and not after; that is to say, the said actions of debt for rent upon an indenture of demise, or covenant or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited. IV. That if any person or persons that is or are or shall be entitled to Infants, femes any such action or suit, or to such scire facias, is or are or shall be, at covert, &c. the time of any such cause of action accrued, within the age of twentyone years, feme covert, non compos mentis, or beyond the seas, (1) then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provisions of this act, have done; and that if any person or per- beyond seas sons against whom there shall be any such cause of action is or are, or shall be at the time such cause of action accrued, beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas. Absence of defendants provided for. V. Provided always, That if any acknowledgment shall have been Proviso in case made, either by writing signed by the party liable by virtue of such in- of acknowledgdenture, specialty, or recognizance, or his agent, or by part payment or ment in writing, part satisfaction on account of any principal or interest being then due or by part thereon, it shall and may be lawful for the person or persons entitled to payment. such actions to bring his or their action for the money remaining unpaid and so acknowledged to be due within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid, or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be, at the time of making the founded on matter of record was not within the act. So this statute could not be pleaded to an action of debt brought against a sheriff for money by him levied on a fieri facias; because the action is founded in maleficio, as also upon the judgment on which the fieri facias issued, which is a matter of record; 1 Mod. 212, 245; 2 Show. 79. And an action of debt on an award under the hand and seal of the arbitrators, though the submission was by parol, was not within the statute; 2 Saund. 64; Sid. 415; 1 Lev. 273; 1 Keb. 462, 496, 533. Nor an action of debt for a fine of a copyholder; 1 Keb. 536; 1 Lev. 273. Neither was an action of debt upon bond within the statute; Coup. 102; but after a lapse of twenty years, without payment of interest or any acknowledgment of it by the obligor, the law presumed it to be satisfied; 1 Term. Rep. 270; and in some cases satisfaction was presumed within that period; 1 Bur. 434, n. (a), 1 Term. Rep. 270; 1 Camp. 26. As to what steps are to be taken to prevent the operation of the statutes of limitations. See the Uniformity of Process Act, 2 W. 4, c. 39, 10, ante, Part IV., Class III. (1) Imprisonment, which is one of the disabilities enumerated in the 21st Jac. 1, c. 16, s. 2. (See Evans's Statutes, Part IV., Class VIII), is not included in those contained in this and the other recent acts of limitation. |