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affirmative, and negative. The former as a mode of acquiring rights in or to incorporeal hereditaments; the latter when applied to those laws which deprive persons of the exercise of their remedies for the recovery of any right to or in things corporeal or incorporeal (e). But the positive or affirmative kind is restricted to prescription properly so called, and applicable to the acquisition of things incorporeal only, by the enjoyment of them for the period of time by law fixed for the purpose (f ), The negative kind, applied to things corporeal, as lands, is directed against the person out of the possession of them, not as transferring his estate to the actual possessor, but by precluding such person from asserting his right or claim thereto after the period assigned by the law for the purpose (9); but as to the right of the actual possessor, as between him and any other person than the person actually asserting right or claim thereto, is altogether silent.
This difference in the operation of these laws has been Difference of made, by an eminent Scotch writer, a ground of distinc- Operation made tion between limitation and prescription. He designates limitation and the former as a denial of the remedy after the lapse of a
prescription, certain time, without regard to the actual subsistence of the claim, and the latter as, and as inferring by operation of the law itself from the mere lapse of time, a presumption of abandonment or of satisfaction of, and thus extinguishing, the claim (h).
The effect of the limitation of the time for asserting Effect of the the right was said by Walsh, J. (i), in the case of time of limitaFines under 4 Hen. 7, c. 24, to be, to subject the right to a condition, that is, that the right be pursued within the time prescribed by law for the purpose. But in contracts, the time beyond which they cannot be enforeed is not of the nature of the contract, nor are the
(e) 3 Cru. Dig. c. 2, s. 1.
(h) Bell's Prin. Law of Scot-
(i) Plowd. 375 a.
-as to the right,
- and the remedy.
parties to be assumed as contemplating the breach only of the agreement (k).
In all questions which turn on the limitation of time, the right is never taken into consideration: for the statute was made to bar right, and not give remedy in dubious cases. The rule, ut sit finis litium, operates against cases of right, rather than in cases of wrong (?). So it was said of the Statute of Fines, that the intention of the act was not so much to preserve former rights as to extinguish them (m).
Statutes of Limitation affect, strictly speaking, the remedy and not questions upon the merits, and go ad litis ordinationem, and not ad litis decisionem, in a just juridical sense. The object of these statutes is to fix certain periods within which suits shall be brought(n). Considered in their true light, these statutes are ordinarily simply regulations of suits and not of rights. They regulate the times in which rights may be asserted in courts of justice and do not purport to act upon those rights (o). In truth it has become almost an axiom in jurisprudence, that a law of prescription, or law of limitation, which is meant by that denomination, is a law relating to procedure, having reference only to the lex fori(p). In some countries, however (9), the legislature has extended the operation of such statutes so as to extinguish the right of the person who has lost the possession to the property, and thus in effect transferring to the possessor that right.
In the law of England the Statute of Limitations in relation to rights of a personal nature is a rule of procedure only; and foreigners suing here are only allowed
(k) Ante, p. 18.
(n) Story, Confl. of Laws, s.
(0) Ib. sect. 580.
(p) The British Linen Co. v. Drummond, 10 B. & C. 903; 1
Bing.N.C. 151; Huber v. Steiner, 2 Ib.202; 8 Moore, P.C.C. 35; Don v. Lippmann, 5 CI. & F. 1; Ex parte Kidd, in re Kidd, 3 De G., F. & J. 646.
(9) Jamaica, Beckfordv.Wade, 17 Ves. 87; and England and Ireland, 3 & 4 Will. 4, c. 27, s. 34.
the time limited by the statute of James, without reference to any limitation which may obtain in the country where the contract was made (r). And in relation to real property which they may lawfully hold in this country, they are of course concluded by the lex loci rei site. As to real property, the statute does not produce its effect by the technical operation of disseisin, abatement or intrusion. The statute requires, as an indispensable preliminary, that the plaintiff in a possessory action should show that he has had possession of, or made an entry into, the estate within the limited period. The onus probandi lies upon him. The inquiry into the nature of the possession is only material with a view to this point, to ascertain whether it has been such, during this period, as to make good what the plaintiff is to prove in order to entitle him to his action, viz. whether it shows him to have had, during any part of the period, by himself, or by another, the actual possession; or whether the estate has, during the whole time, been in fact held and enjoyed by an adverse claim of title, that is, a claim not consistent with the title of the plaintiff(s).
The operation of the law in England and Ireland, in In England claims of the Crown against a subject, and in claims between the by one subject against another, differs; but in claims Crown and
subject. between subject and subject, with one exception, until 1835, was the same. In that year the operation of the law as to three classes of things was changed.
In claims of the Crown against a subject, the 21 Jac. 1, c. 2, excluded and negatived all remedies of the Crown against the subject, and the king's right and title were utterly barred (t) and transferred to the subject(u), or was exclusive of the right and title of the king, and affirmed and established the estate of the subject
(r) 13 Q. B. 818; Pardo y. Bingham, 17 W. R. 419.
(8) 2 Jac. & W. 164.
(t) 3 Inst. 188, 189.
as against the Crown, and all persons claiming or pretending to claim under it any hereditaments, except, as to the Crown, liberties and franchises. This act was intended to be extended by the 9 Geo. 3, c. 16, in England, and by the 48 Geo. 3, c. 47, to Ireland; and the 9 Geo. 3, c. 16, in similar terms, has been extended to the Duke of Cornwall, in relation to some of his property and possessions in the county of Cornwall, by the 7 & 8 Vict. c. 105; and in relation to other property and possessions of his not within the last-mentioned statute, and to other property and possessions not within that county, the provisions of the 9 Geo. 3, c. 16, are extended to him by the 23 & 24 Vict. c. 53, subject nevertheless, as to the property and possessions included in the last-mentioned act, to the provisions contained in the ss. 72 and 75 of the 7 & 8 Vict. c. 105, with respect to the property and possessions included therein, and are also amended and extended to all actions and suits by him, and also to the acts of the 7 & 8 Vict. c. 105, and the 23 & 24 Vict. c. 53, by the 24 & 25 Vict. c. 62.
In claims to land between subject and subject, by the Statute of Limitations the right was not, until 1834, the direct object of this law. The land was considered neither as acquired by one party, nor transferred from the other. The law merely extinguished the remedy of the one party without giving the estate to the other (x). The title remained, but the remedy was lost (y), or rather suspended. Practically, however, in one respect at least, the result was the same as if the right had been the object, for a right without a remedy is a mere negation. There was this important difference, however, the right being merely suspended was therefore capable of revival at any time after the period
Between subject and sub ject.
(2) Davenport v. Tyrell, 1 W. Bl. 675.
(y) 2 Jac. & W.140.
within which the remedy was to be pursued had elapsed. A fine with proclamations and non-claim for five Exception
fine with proyears after it was levied, is, or rather until the year clamations. 1834 was, the exception referred to. The fine not only passed the interest of the conusor or person levying it, and extinguished and perpetually barred him of all present and future right and possibility of right; or other collateral benefit to the thing whereof the fine was levied, but was à perpetual bar to all other persons having any right in or to the thing, and not asserting their right within five years after the last proclamation of the fine (2); although as to such other persons, if neither the conusor nor the conusee had an estate of freehold in the thing, the fine was void, whatever might be its effect between the parties to it (a).
Sir William Grant, speaking of the possessory law of Possessory law the island of Jamaica of the 4 Geo. 2, said:
66 This possessory law is framed upon a different principle from four Statutes of Limitation. It is rather of the nature of the usucapio of the Roman law, or the positive prescription of the law of Scotland. It does not bar the legal remedies, if the parties do not proceed within a certain time; but it converts a possession for seven years, under a deed, will or other conveyance, into a positive absolute title against all the world .. .. and it is provided that after such possession, the party'shall be at liberty to give this act in evidence, or plead the same in bar,' not, as our statute sàys, 'of certain legal remedies, but in bar in any suit or suits, claim or demand to be brought or made against him, her, or them," &c. &c. (b). To a certain extent, however, this law, as will be Right, in case
of land, &c., hereafter shown, has been placed on a different founda
guished. (3) Shep. T.6; Stowel v. Lord (b) Beckford v. Wade, 17 Ves. Louch, Plowd. 353 a.
(a) Shep. T. 14.