the king's presentee. (Calland v. Troward, 2 H. Bl. 324; 8 Br. P. C. 71; 6 T. R. 439, 778.) 3 & 4 Will. 4, c. 27, s. 31. The right of the crown to present to an English benefice, upon the appointment of the incumbent to a bishopric, is not barred by the crown having before such appointment granted the advowson to a subject. But no such right exists in the case of an appointment to the bishopric of Christ's Church, in New Zealand. (Reg. v. Eton College, 8 Ell. & Bl. 610.) The right of presentation given to the universities by the statutes 3 Jac. 1, Universities. c. 5, ss. 18, 19, 20; 1 Will. & M. c. 26, s. 2, and 12 Anne, st. 2, c. 14, s. 1, arises only in the case of a sole patron, or all of several patrons professing the Roman Catholic religion. Where two are jointly seised of an advowson, the one being a Roman Catholic, the other a Protestant, the sole right is in the latter. (Edwards v. Bishop of Exeter, 7 Scott, 652; 5 Bing. N. S. 652; 3 Jur. 725. See Cottington v. Fletcher, 2 Atk. 155.) By statute 12 Anne, st. 2, c. 14, the presentation to any benefice by any Roman Catholic is void. And by stat. 11 Geo. 2, c. 17, s. 5, every grant made of any advowson or right of presentation, collation, nomination or donation, by any person professing the Catholic religion, or by any mortgagee or trustee of such person, is void, unless it be for valuable consideration to a Protestant purchaser. (See 9 & 10 Vict. c. 59.) An advowson donative being in the patron's disposal by his own deed of donation, without presentation, institution or induction, (Co. Litt. 344 a,) is not subject to lapse, (Ib.; Fairchild v. Gayre, Cro. Jac. 63; Britton v. Wade, Ib. 515,) unless such be the terms of the foundation, or unless the donative be augmented by Queen Anne's bounty, in which case it is subject to lapse, by statute 1 Geo. 1, st. 2, c. 10, ss. 6, 14, in case there be no nomination within six months. (See Mutter v. Chauvel, 1 Mer. 475.) As to proof of augmentation, see 11 East, 478. The ordinary may, by ecclesiastical censures, compel the patron of a donative to fill the church. (3 Salk. 140; Rex v. Bishop of Chester, 1 T. R. 396.) By stat. 21 Hen. 8, c. 13, if a person having a benefice with cure of souls, of the yearly value of 81. or above, was instituted and inducted into any other benefice with cure of souls, the first benefice became void. (See, on the construction of this statute, Boteler v. Allington, 3 Atk. 453; Botham v. Gregg, 4 Moore & S. 230; Halton v. Cove, 1 B. & Ad. 530.) The stat. 1 & 2 Vict. c. 106, ss. 1-13, has repealed the stat. 21 Hen. 8, c. 13, and made new provisions as to pluralities, which provisions apply generally to all persons and benefices without distinction of value. By the 11th section of 1 & 2 Vict. c. 106, institution into a second benefice ipso facto avoids the first. (See Storie v. Bishop of Winchester, 9 C. B. 62; Ex parte Bartlett, 12 Q. B. 488, as to avoidance by non-residence under ss. 54, 58, of the same statute, when the clerk is in prison.) Further provisions are made relating to the holding benefices in plurality by statute 13 & 14 Vict. c. 98. Estates subsequent to Estates Tail. vowson in re 32. In the construction of this act every person claiming a when person right to present to or bestow any ecclesiastical benefice, as patron claiming an adthereof, by virtue of any estate, interest or right which the owner mainder, &c. of an estate tail in the advowson might have barred, shall be deemed to be a 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. after an estate barred. tail shall be 3 & 4 Will. 4, c. 27, s. 33. No advowson to be recovered after 100 years, Extreme Period of Limitation One Hundred Years. 33. Provided always, and be it further enacted, that after the said thirty-first day of December, one thousand eight hundred and thirty-three, no person shall 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 (z). (z) It will be observed that there is no saving of the rights of persons under disabilities. It will still be necessary to require abstracts of titles to advowsons to be carried back for a century at least. An abstract of title to an advowson should be accompanied with evidence that the presentations have from time to time been made by the persons appearing to be the owners of the advowson. Sir W. Blackstone observes, that instances are not wanting, wherein two successive incumbents have continued for upwards of 100 years; and states as an instance, that two successive incumbents of the rectory of Chelsfield-cum- Farnborough, in Kent, continued 101 years; of whom the former was admitted in 1650, the latter in 1700, and died in 1751. (3 Chitt. Bl. Comm. 250; Co. Litt. 115 a.) At the end of the period of limita the party out of possession to be extinguished. FINAL EXTINCTION OF RIGHT. 34. At the determination of the period limited by this act to tion the right of 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 (a). Effect of this section. (a) This section of the act is new in principle, as the former statutes of limitation were held not to bar the right but merely the remedy; but this bars the right as well as the remedy. (See 1 Wms. Saund. 283 a, n.; 2 B. & Ad. 413; 1 B. & Ald. 93; 1 Ld. Raym. 422.) The old statutes only barred the remedy, but did not touch the right; possession at all times gave a certain right, but, under the new act, when the remedy is barred, the right and title of the real owner are extinguished, and are in effect transferred to the person whose possession is a bar. (Incorporated Society v. Richards, 1 Dru. & War. 289.) By the effect of the statute after the proper period of limitation has passed, the legal fee-simple is in the party who has been in possession during that period, and he is competent to convey to another. The old statute of limitations was held to operate as an extinguishment of the remedy of one, and not as giving the estate to the other, where one heir in gavelkind had disseised the other, and been in the sole possession sixty-two years. (1 Bl. R. 678.) Under this and the 2nd and 3rd sections the right to rent is extinguished by the lapse of twenty years from the time of the last payment of such rent, although twenty years have not expired since the rent became due. (Ante, p. 166, n. (1).) Though by this section the right is extinguished at the end of twenty years, still adverse possession by a succession of independent trespassers for a period exceeding twenty years confers no right on any one of them who has not himself had twenty years' uninterrupted possession, except as furnishing a defence to a trespasser in possession against an action by the rightful owner. (Dixon v. Gayfere, 17 Beav. 421; 23 Law J., Chan. 60.) After both the trustees and cestui que trust had been out of possession more than twenty years, an ejectment was brought by A. B., the heir of the trespasser, in the name of the trustee, and he obtained judgment. The trustee who, disclaiming all personal interest, then instituted a suit seeking to have the rights declared as between the rightful owner and the heir of the trespasser, and the court by its receiver took possession. A. B. afterwards instituted a suit against the trustee and the rightful owner to recover the property. It was held, that the court being in possession this statute had conferred no right and did not apply. (Ib.) A. wrongfully entered and died intestate, his widow entered. It was held, that the possession of the widow was not a continuance of that of her husband, it not being shown that she was entitled to dower, and such a right not entitling her to enter into the whole estate. (Ib.) A suit dismissed as against the principal defendant, and which though pending as against the others has yet been practically abandoned, does not prevent the operation of the statute. (Ib.) The effect of this and the 2nd section as to land, is, that after twenty years' possession adverse to a title it is extinguished, so that it cannot be revived or re vested by a re-entry after that period, upon the doctrine of remitter, because such an application of that doctrine requires that the former title should be in existence at the time of the re-entry, and the express provision in the statute that no person shall be deemed in possession of lands merely by reason of an entry thereon, applies to cases of such re-entry. (Brassington v. Llewellyn, 27 Law J., Exch. 297; 1 F. & F. 27.) Without the aid of this statute twenty years' possession gave a primâ facie title against every one, and a complete title against a wrong-doer who could not show any right, even if such wrong-doer had been in possession many years, provided they were less than twenty. (Doe d. Harding v. Cooke, 7 Bing. 346; see ante, p. 163.) And the effect of this section would probably be to give the right to the possessor for twenty years even against the party in whom the legal estate formerly was, and, but for the act would still be, where he had not obtained the possession till after the twenty years, but then it is apprehended that such twenty years' possession must be either by the same person or by several persons claiming one from the other by descent, will or conveyance. (Doe d. Carter v. Barnard, 13 Q. B. 945, 952.) Where a Statute of Limitations extinguishes the right and does not merely bar the remedy, the defence under such statute need not be pleaded specially, and therefore in an action of replevin evidence of the lapse of twenty years since the last payment of rent may be given under a plea in bar of non tenuit. (De Beauvoir v. Owen, Law J. 1850, Exch. Ch. 177; 5 Exch. 166; Owen v. De Beauvoir, 16 Mees. & W. 547.) The appointment of receivers in a suit in chancery, at the instance of judgment creditors of a former owner, is not such an interruption of possession as will prevent an indefeasible title being acquired by an adverse possession for twenty years under this section. (Groome v. Blake, 8 Ir. C. L. R. 428.) The court will compel a purchaser to take a title depending upon parol evidence of adverse possession under this statute. A testator by his last will and testament, after appointing certain lands to his eldest son, George, gave all the residue of his real estate among his six younger sons, subject to the payment of his debts and some charges. Shortly afterwards, he ob tained a conveyance of certain freehold property, which was the subject of the controversy in the present suit, and died without having altered in S. R 3 & 4 Will. 4, c. 27, s. 34. 3 & 4 Will. 4, c. 27, s. 34. any respect or republished his will, leaving his eldest son of full age. Upon the death of the testator, in 1791, the six younger sons entered into the possession, inter alia, of the after-acquired property, and so continued until the present time: George, the eldest son, died in 1819, leaving an infant heir. It did not appear that any claim was ever made on the part of George during his life or after his death by his heir at law, and the younger sons continued during the entire of such period in the undisturbed enjoyment of the property. In 1839, the premises were sold under a decree of the court, pronounced in a suit instituted by a judgment creditor of the testator, in which suit the infant heir was a party defendant. Subsequently to this sale the heir died, and the suit was not revived against the next heir. The abstract of title stated all the above matters, and was verified by two affidavits deposing as to the fact of the possession and receipt of rent by the younger sons: it was held, upon objections to the title on the part of the purchaser, that by the operation of this statute, such a title had been created as the purchaser was bound to take. (Scott v. Nixon, 3 Dru. & War. 388.) In the subsequent case of Tuthill v. Rogers, (6 Ir. Eq. R. 441; 1 Jones & L. 36,) Sugden, L. C., observed, that the above decision had been acquiesced in, and in conformity with it he should be compelled in principle to adopt the same construction against the rights of the crown, if the case came within the provisions of the act 48 Geo. 3, c. 47, by which the right of the crown is barred, and the estate actually transferred and vested in the person who has held adverse possession for sixty years. Receipt of rent to of profits. RECEIPT OF RENT. 35. The receipt of the rent payable by any tenant from year be deemed receipt 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. Real and mixed actions abolished after the 31st IX. ABOLITION OF REAL AND MIXED ACTIONS, &C. 36. No writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, December, 1834; writ of right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, writ de rationalibus 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 theolonia, 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 communem 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 c. 27, s. 36. nuper obiit, writ of waste, writ of partition, writ of disceit, writ 3 & 4 Will. 4, 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, except for 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. (b) The right to bring real actions is preserved for a limited time by the 37th and 38th sections. (See post, p. 245.) A writ of right by journeys accounts, sued out after the time allowed by stat. 3 & 4 Will. 4, c. 27, s. 36, for suing out original writs of right, is a nullity, being a new writ and not a continuance of a former one. (Davies v. Lowndes, 2 Dowl. & L. 272; 6 Man. & G. 529; 8 Scott, N. R. 539. See 1 Phill. C. C. 328.) mise. It seems that an action of debt does not necessarily lie for rent in consequence of the abolition of real actions. (Varley v. Leigh, 2 Exch. R. 450.) If a tenant in a writ of right obtain judgment on demurrer to the count, the demandant not joining in the demurrer but making default, the judgment for the tenant ought not to be final, no issue being joined on the A judgment under such circumstances, barring the demandant as to the present action, is, so far, good; but if it also adjudge that the tenant shall hold to him and his heirs quit of the demandant and his heirs for ever, that part is erroneous, and judgment ought so far to be reversed. So held by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench. (Nesbit v. Rishton, 11 Ad. & El. 244; 6 Ad. & El. 103; 9 Ad. & El. 426; 2 Per. & D. 706.) quare impedit and ejectment. Dower, writ of right of dower abolished as real and quare impedit actions, and to be commenced by writ of summons. 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 actions. 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. Writ and all pro ceedings thereas in ordinary upon to be same A writ of right of dower laid when a widow had dower of part of the lands Recovery of in the same vill, for then she could not have dower unde nihil habet against dower. 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.) It has been held, that copyholders shall neither plead nor be impleaded for the tenements which they hold by copy by the king's writ, but shall have their plaints in the nature of the several actions at common law, unless the dispute arise between the lord and his tenant. (2 Watk. on Cop. 35.) And the plaint in the nature of a writ of dower lies in the manor court. (4 Rep. 30 b. See Rex v. Coggan, 6 East, 431, n.; Scott v. Kettle |