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In cases of prescriptive claims made absolute.
tion, and now, in the case of lands, rents and advowsons extinguishes, after the lapse of the prescribed periods, the right and title of the person claiming (c). Time, with preserving hand, has meted out the portions of duration which have given birth to the new parliamentary title, and with his destroying scythe has cut down the material witnesses who could testify ... of their own knowledge of facts which are at variance with the claim (d). The consequences of this alteration, as will hereafter appear, are important. In relation to other matters of the nature of things personal, the claimant is deprived of his remedy after a certain period; but the right is left unaffected; that is, is not expressly the direct subject of any legislative provision similar to the case of land (e).
In relation, however, to rights of a prescriptive nature of two classes, such as (1) claims to any right of common or other profit or benefit to be taken and enjoyed from or upon any land, and to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, from or over any land or water (f), and (2) prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes by composition, real or otherwise (9), neither the right itself nor the remedy for it is the subject of any legislative provision in any mode analogous to that in the case of land itself, and of things personal; but such rights of the first class, after having been actually taken and enjoyed by any person claiming them without interruption for a specified period, are preserved from being defeated or destroyed, as they were formerly (h), by showing only that they were first taken or enjoyed at any time prior to such period, but
(c) 3 & 4 Will. 4, c. 27.
(e) 21 Jac. 1, c. 16; 9 Geo. 4, c.
() 2 & 3 Will. 4, c. 71.
are still left liable to be defeated in any other way by which they are liable to be defeated; but after a further specified period, when they are not taken and enjoyed by some consent or agreement expressly made or given for the purpose by deed or writing, are rendered absolute and indefeasible; and such rights of the second class, in cases where the render of tithes in kind is demanded, are to be sustained and deemed good and valid in law, upon evidence showing, in claims of a modus decimandi, the payment or render of such modus, and, in claims to exemption or discharge, showing the enjoyment of the land without payment or render of tithes, money, or other matter in lieu thereof, for a certain period before the time of the demand ; unless in claims of a modus, the actual payment or render of tithes in kind, or of money or other thing differing in amount, quality or quantity from the modus claimed, or in claims to exemption or discharge, the render or payment of tithes, or of money or other matter in lieu thereof, be shown to have taken place at some time prior to such period, or evidence be given that the payment, render or enjoyment was had by some consent or agreement expressly made or given for the purpose by deed or writing; and if such evidence be extended to a further period next before the time of such demand the claim is to be deemed absolute and indefeasible, unless the payment, render or enjoyment was had by some such consent or agreement.
THE RISE AND PROGRESS OF PRESCRIPTION IN
ENGLAND AND IRELAND.
Anciently, no The rise and progress of these laws in general, affecttime of limitation against
ing the Crown, can be very distinctly traced. In the the Crown.
early period of our jurisprudence, in respect of that ancient prerogative of the Crown, that nullum tempus occurrit regi (a), titles of the king were not restrained to any limitation of time; for that no limitation of time, that ever was made, did ever limit the title of the king to any manors, lands, tenements, or hereditaments to any certain time (b). It was also applicable to rights claimed by prescription against the king (c), but was, both at common law and by statute, subject to vari
ous exceptions (d). Prerogative The prerogative of the Crown is precisely the same as maxim, nullum tempus,
regards what is called the property of the Sovereign and until Jac. 1. the property of the public (e); and is founded upon this,
that the prerogative is the inheritance of the Crown as Sovereign of this realm, and is too great a matter to be
(a) Litt. s. 178; Co. Litt. 41 b, Lim. 39. 57 b, 90 b, 118 a, 294 b, 344 a; 11 (d) See Bro. Stat. Lim. 180; Co. Co. 75; Plowd. 243.
Litt. 119 a, n. 1, 180b, n. 2. (6) 3 Inst. 188.
(c) Per Lord Brougbam, 9 Cl. (c) 2 Roll. 364, 1. 10; Bro. Stat. & F. 211.
governed by the narrow rules of private property (f), and that the Crown was supposed to be so much engaged in public affairs, and to be devoted so much to the public interests (9), that it has not the opportunity of actively superintending its own particular interest, and perhaps, also, that the weakness, supineness and negligence of the immediate possessor of the crown should not impair the rights and interests of the successor This prerogative, until the reign of James the First, continued in full force. Before the statutes in his reign in relation to the property of the Crown, we know that from the different disputes about the succession of the Crown, and grants to partisans, the Crown lands had passed into a great variety of hands. Many persons had been long in possession of their estates; money had been expended upon them, and they had passed from hand to hand. Under these circumstances, the reclaiming them was felt to be extremely oppressive, and therefore a bill at that time, to quiet possession under certain circumstances, was thought necessary (h). Hence the two statutes now to be noticed.
That the law limiting the time within which, in This maxim cases between subject and subject, claims should be modified in his
abrogated or asserted, should not apply in cases between the Crown reign. and its subjects, was, in principle, false ; although, in the latter cases, the law might be applied with less force, and a more lengthened period be allowed to the Crown for the assertion of its rights, than in the former cases. In that reign accordingly the legislature, to a certain extent, abrogated, or rather perhaps modified, this ancient maxim or prerogative, by enacting that the Crown should not sue any person for or concerning any manors, lands, tenements, rents, tithes, or hereditaments, other than liberties and franchises,
or the profits thereof, or make any demand of the same, by reason of any right or title accrued sixty years past and more, and then in esse, unless answered, by virtue of such right or title, the profits of the same manors, &c., or the profits had been duly in charge, or had stood insuper of record, within sixty years next before the beginning of the then session of parliament; and every person claiming the same manors, &c., with such exception, or such profits, were to enjoy against the Crown, claiming by any title accrued within that period, and then in esse, the manors, &c., which with such exception they had so enjoyed, or the profits whereof they had taken for that term, unless the Crown had been so answered the rents, or the profits had been duly in charge or stood insuper of record within the same space of time, and also against all patentees or grantees from the Crown, the same manors, &c., but without any such exception(i).
Again, by chapter 14 of the same session, wherever the Crown has been, or shall be, out of possession for twenty years, or shall not have taken the profits of lands, &c. within twenty years before any information of intrusion brought to recover the same, the defendant may plead the general issue and shall not be required to plead specially, and shall retain the possession he had at the time of the information exhibited until the title be tried, found or adjudged for the Crown.
As before the former of these two acts, the king was considered as in actual possession, and the defendant was bound to plead his title, as a justification for his trespass and intrusion; so, since the act, he might stand upon his actual possession of sixty years, and put the king to prove his title within that period. Hence, therefore, the latter act, regulating the course of proceeding, by remitting the ancient prerogative of putting
(i) 21 Jac. 1, c. 2; 3 Inst. 190.