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3 & 4 W. 4, 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.
XLIII. And be it further enacted, That, after the said tend to the spiritual
thirty-first day of December, one thousand 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 XLIV. Provided always, and be it further enacted, That extend to Scotland,
this act shall not extend to Scotland; and shall not, so far nor to ad- as it relates to any right to permit * to or bestow any church, Ireland.
vicarage, or other ecclesiastical benefice, extend to Ireland.
XLV. And be it further enacted, That this act may be amended.
amended, altered, or repealed during this present session parliament.
Act to ex
Act may be
* Sic. “ Present."
2 & 3 WILL. IV. CAP. LXXI.
An Act for shortening the Time of Prescription in certain 2 & 3 W. 4, Cases.
[1st August, 1832.] Whereas the expression “time immemorial, or time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice; for remedy thereof, be it enacted, by the King's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present parliament assembled, and by the authority of the same, That no claim which may be lawfully made at the common Claims to law, by custom, prescription, or grant, to any right of righton common or other profit or benefit to be taken and enjoyed and other
profits a from or upon any land of our Sovereign Lord the King, his
prendre, not heirs or successors, or any land being parcel of the Duchy to be of Lancaster, or of the Duchy of Cornwall, or of any ec- thirty years' clesiastical or lay person, or body corporate, except such enjoyment
by shewing matters and things as are herein specially provided for, and the comexcept tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto, without interruption for the full period of thirty years, be defeated or destroyed by shewing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless, such claim may be defeated in
other way by which the same is now liable to be after sixty defeated; and when such right, profit, or benefit shall have years' en
joyment the been so taken and enjoyed as aforesaid, for the full period right to be of sixty years, the right thereto shall be deemed absolute unless had
2 & 3 W. 4, and indefeasible, unless it shall appear that the same was
taken and enjoyed by some consent or agreement expressly by consent
made or given for that purpose by deed or writing.
II. And be it further enacted, (a) That no claim which may right of way be lawfully made at the common law, by custom, prescripor other easement, tion, or grant, to any way or other easement, or to any the periods to be twenty
watercourse, or the use of any water, to be enjoyed or de
rived upon, over, or from any land or water of our said lord forty years, the King, his heirs or successors, or being parcel of the
Duchy of Lancaster or of the Duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by shewing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
(a) Previous to this act, the prescriptive rights to profits and easements, to be taken in or enjoyed
the soil of another, could only be 'established by what was deemed legal proof of an enjoyment of nearly 650 years,—these rights not being within the operation of the 32 Hen. 8, and, consequently, the reign of Rich. 1 being considerd the commencement of legal memory for all purposes at the present day. In many cases, the courts created a remedy to this absurd rule, by holding that proof of enjoyment as far back as living witnesses could speak, raised a presumption of an enjoyment from the remote era. This remedy,
however, frequently failed, inasmuch as a right claimed by prescription was always disproved, by shewing that it did not, or could not, exist at any one given point of time since the commencement of legal memory; or, although it originated before the commencement of legal memory, that, at some subsequent period, the servient tenement, or that over which the right was exercised, and the dominant tenement, or that to which the right was attached, once belonged to the same individual, whereby the prescriptive right was extinguished. To obviate these difficulties, it had recently become the practice to presume à grant of the right in question
Claim to the
III. And be it further enacted, That, when the access 2 & 3 W. 4, and use of light to and for any dwelling-house, workshop, or other building, shall have been actually enjoyed there
use of light with for the full period of twenty years without interruption, enjoyed for the right thereto shall be deemed absolute and indefeasible, defeasible, any local usage or custom to the contrary notwithstanding, sheen unless it shall appear that the same was enjoyed by some to have been
by consent. c. 71.
to have been made by a tenant in fee of the servient tenement to
tenant in fee of the dominant tenement, to have been made subsequent to the period at which the right was shewn to have been commenced or extinguished. (As to presuming the grant of a right of way, see Campbell v. Wilson, 3 East, 294as to presuming a right of water, Wright v. Howard, 1 Sim. & Stu. 203—and as to a right to the enjoyment of light, Cross v. Lewis, 2 Barn. & Cress, 689). Even this expedient, independently of the objection, aris. ing out of its being known by all parties to be a mere fiction, frequently failed by its being shewn that the title of the two tenements was such, that the presumed grant could not have been made in the manner alleged in the plea.
The commissioners, moved by these considerations, proposed to amend the law as follows:—“We propose that legal memory, with respect to this species of property, shall always be taken to be sixty years ante litem motam, or rather, that adverse enjoyment during this period shall be conclusive evidence of a right to such profit or easement. It will still be for a jury to determine, in case of dispute, whether the right has been exercised conventionally or adversely, and there will be no greater danger than at present of a licence or limited grant becoming the foundation of a prescriptive right; but it must not be
open to the party denying the right to contend, that, from leases or other particular estates, it could not have been lawfully granted by the occupier of the soil within sixty years. It can only be in very rare cases that the owner of the fee, or at least an estate of inheritance, has not been in possession during some part of such a period; and, even in that case, he might have put an end to any usurped right, by bringing an action on the case for an injury to his reversion by the exercise of it. Without making adverse enjoyment during the new period of limitation conclusive eviof the right, comparatively little advantage would arise from the reduced limit of legal memory. The disabilities of the parties against whom this prescription is to run must likewise be disregarded.
But we are of opinion, with respect both to profits and easements, shorter period, namely twenty years, should also be established, as affording presumptive evidence of right, liable to be rebutted by proof that during that time the servient tenement was occupied under a lease, or was held by a tenant for life, or by a person under disability. At present, the exercise of a right of common, or the use of a way, or of water, or any easement, for twenty years, constitutes a prima facie case to establish the right; and the rule may be continued without inconvenience.-1st Rep. p. 51.
deemed those next
2 & 3, W.4, consent or agreement expressly made or given for that pur
pose by deed or writing. Before men- IV. And be it further enacted, That each of the reriods to be spective periods of years herein before mentioned shall be
deemed and taken to be the period next before some suit or
action wherein the claim or matter to which such period for claims may relate shall have been or shall be brought into questo which such periods tion, and that no act or other matter shall be deemed to be relate.
an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making
or authorizing the same to be made. In actions V. And be it further enacted, That, in all actions upon on the case, the case and other pleadings, (6) wherein the party claiming may allege may now by law allege his right generally, without averring his right generally, as
the existence of such right from time immemorial, such at present. general allegation shall still be deemed sufficient, and, if the
same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the
case, shall be admissible in evidence to sustain or rebut such In pleas to allegation; and that, in all pleadings to actions of trespass, trespass and other plead
and in all other pleadings wherein before the passing of this ings, where act it would have been necessary to allege the right to have to allege his existed from time immemorial, it shall be sufficient to allege claim from the enjoyment thereof as of right by the occupiers of the morial, the tenement in respect whereof the same is claimed for and period men- during such of the periods mentioned in this act as may be this act may applicable to the case, and without claiming in the name or be alleged ;
right of the owner of the fee, as is now usually done: and if tions or the other party shall intend to rely on any proviso, excepother mat
tion, incapacity, disability, contract, agreement, or other replied
matter hereinbefore mentioned, or on any cause or matter specially.
of factor of law, not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.
ters to be
(6) We think the necessity of alleging the grant of an easement in
pleading might in all cases be dispensed with. The right to an ease