of the duchy (t). So also in relation to the possessions of the duchy of Cornwall when there is no Duke of Cornwall (u). protected by nullum tem pus. In relation to things incorporeal, however, some, Some things by the enjoyment or quasi possession thereof, may be incorporeal not acquired at common law even against the Crown, and the maxim are not within the maxim nullum tempus occurrit regi(v). At the common law, if any had usurped upon the king, and the presentee had been admitted, instituted and inducted (for without induction the church had not been full against the king), the king might have removed him by quare impedit, and been restored to his presentation: for therein he hath a prerogative, quod nullum tempus occurrit regi; but he could not present, for the plenartie barred him of that; neither could he remove him any way but by action, to the end the church might be the more quiet in the meantime (x). In other instances also the Crown loses its right either because before it is exercised the subject of it fails, or because the right is not exercised in due time (y), or cannot exercise the right until it has been first recovered, as in the case of presentation to a church already full against the Crown (z). For the maxim just quoted applies only when the king has an estate or interest certain and permanent and not when his interest is specially limited, when and how he shall take it, and not otherwise; for there time is the substance of his title, and tempus occurrit regi (a). Some writers, indeed, have said that no claim by prescription can be made against the Crown (b). But it is submitted that the (t) Reg.v. Archbishop of York, &c., infra. (u) See Att.-Gen. v. St. Aubyn, Wightw. 167. Plowd. (e) Co. Litt. 114 b; 322; Staundf. Prærog. Reg. c. 8. (2) Co. Litt. 344 b. (y) Staundf. Prærog. Reg. 32b; Baskerville's case, 7 Co. 28 a. (z) Co. Litt. 344b; 2 Inst. 358. (a) 7 Co. 28 a; Staundf. Prærog. Reg. c. 8. (b) See Best on Ev. ss. 370, 383. Since this was written the 4th edition of this work has appeared, and contains a reference to the authorities on both sides of the question. Defendant in intrusion in the Jury to an in authorities cited in support of this proposition do not support it. Comyn indeed in his Digest, in showing what things may be claimed by prescription, includes such as can be derived from the Crown only, and Lord Coke distinctly states that such things may be acquired by prescription (c); and against this authority that of Rolle (d) cannot be sustained. The enjoyment or quasi possession, as against the Crown by any person, of rights of common or other profits or benefits, ways or other easements, watercourses, and the use of water, upon, over or from any land or water of the sovereign or parcel of the duchy of Lancaster (e), and also of prescriptions and claims of or for any modus decimandi, or of or to any exception from a discharge of tithes by composition real or otherwise as against the Crown (f), is secured to the subject after the expiration of certain times. Although in an information of intrusion the defennature of tres- dant, when his possession of lands has been for less than pass for an in- twenty years, must maintain, and show it to be legal (g), corporeal right yet in an information in the nature of an action of need not plead title to the land trespass on the case for an injury to the incorporeal right of forest by interfering with the game, the defendant is not bound to plead title to the land which he uses in such a way as to be injurious to the game (h). used. Liberties and franchises. Liberties or franchises also are expressly excepted from the 9 Geo. 3, c. 16 (E.), and the 48 Geo. 3, c. 47 (I.). Therefore, although as to this species of Crown property proof of their existence, user and enjoyment may be sufficient to enable one subject having the bare quasi possession of them to maintain against a mere wrongdoer an action of trespass (i), yet as between the (c) Co. Litt. 114 b. (d) 2 Ab. 264, Prescription C. (h) Att.-Gen. v. Hallett, 1 Exch. 211. (i) Trotter v. Harris, 2 You. & Jer. 285. Crown and a subject they are still within the common law and the maxim nullum tempus occurrit regi. The Duke of Cornwall's corporeal posses In relation to the possession of property of the Duke of Cornwall no express legislative provision similar to that in relation to the possession of, as distinguished from sions. the title to, the property of the sovereign, exists (j). But the possession of property, parcel of the possessions of the duchy of Cornwall, is conceived to be within the 21 Jac. 1, c. 14, as between the Duke of Cornwall and another subject, in like manner as in a case between the Crown and a subject (k). A title, as distinguished from mere possession, may with some exceptions, be acquired against the Duke by another subject in the same manner as in the possessions of the Crown against the Crown itself (); and it is conceived that as until these statutes in relation to the property of the Duke, parcel of the duchy, that property was in the same position as the property of the Crown, and as those statutes contain exceptions of certain property belonging to the duchy, the Duke, in relation to the property so excepted, as in the case of the Crown, is still entitled to the benefit of the maxim nullum tempus occurrit regi(m). The enjoyment or quasi possession of the incorporeal Incorporeal rights against rights secured to the subject as against the Crown (n) is him. also secured to the subject as against the Duke of Cornwall by the same statutes. (j) 21 Jac. 1, c. 14. (k) See Att.-Gen. v. St. Aubyn, Wightw. 167. (7) See 7 & 8 Vict. c. 105; 23 & 24 Vict. c. 53; 24 & 25 Vict. c. 62. (m) See Aubyn, supra. Att.-Gen. V. St. (n) Supra, pp. 40, 41, 97. CHAPTER V. POSSESSION PROPER AND QUASI POSSESSION AS BETWEEN SUBJECT AND SUBJECT. How possession POSSESSION, both proper and quasi, is regarded here, as regarded here. to its nature, as a mere condition of fact (a), independent of the title to, or of the property in, the thing possessed, and whether acquired wrongfully or acquired rightfully, but continued wrongfully. In whom presumed to be. Making entry. When two per sons on the land. The possession is presumed to be in the owner of the soil and freehold until some evidence is given to the contrary. If, therefore, land over which a right of way is claimed by a lessee be not shown to be comprised in the demise, the presumption is that such land was not demised, that he has an easement only, and that the possession of the land is in the lessor as such owner (b). When a person entitled to, enters in the assertion of, the possession, or, which is exactly the same thing, any other person enters by command of the person so entitled, the law immediately vests the actual possession in the person who has so entered (c); and any person who insists on remaining on the land of another against his will, and, therefore, primâ facie against right, ought to show all the circumstances which make such possession lawful, and abridge the general rights of property (d). If two persons be upon land, each asserting that it is his, and each doing some act in virtue of his alleged ownership, the person who has the title is in actual possession (e), and the other person is a trespasser. They (a) Chap. II. of this Book. M. & R. 861. (c) See 7 B. & C. 402; 2 Ex. 821. (d) 8 Ex. 545. (e) Litt. s. 701; Plowd. 233. differ in no other respects. They have not a joint possession, nor a possession as tenants in common, for a man cannot be a tenant in common by wrong (ƒ); but one is in possession, and the other is a trespasser, and which of the two really is in possession is determined by the fact of the possession following the title; that is, by the law, which makes it follow the title (g). Where a lessee is in the actual possession under his By lessee. lease, his possession will be presumed to continue until the determination of his interest, not doing any act to the contrary. But after his interest has ceased he will not be presumed to have continued his possession unless an intention to the contrary be clearly shown, because by such continuance he would be a wrongdoer (h). The possession of the lands of the church by eccle- By ecclesiassiastical persons is in such persons in right of their tical persons. respective churches or other ecclesiastical preferment, and they are said to be seised in fee in that right (¿). But whether the incumbent of a perpetual curacy, augmented by Queen's Anne's Bounty, be seised in fee simple, or even in right of his church, has been the subject of considerable doubt and difference of opinion (j). Possession is evidence against a rector or vicar who Against whom has submitted to it, but is not, in general, evidence evidence. against his successor who has not submitted to it (k). A lease by a perpetual curate, not confirmed by the patron of the rectory (1), or by the bishop (m), is therefore void; and the acceptance by the successor of the rent reserved by such lease is no affirmance by him of such (f) Plowd. 233; Salk. 423. 219. (i) Co. Litt. 44 a, 66 b; Litt. 88. 643, 644, 645. (j) See Doe d. Richardson v. Thomas, 9 Ad. & E. 556. (k) See Co. Litt. 45 a; Litt. ss. 643, 644, 645; Croft v. Howel, (1) Doe d. Brammall v. Col- (m) Doe d. Richardson v. Thomas, 9 Ad. & E. 556. |