For arrears of rent, &c.

Tithes as chattels where recoverable.

Legacies, &c. in spiritual courts.

Arrears of, in equity.

the writ de dote assignandâ, issued by that court, on which there are no damages (c), and not when given to her by a decree of a court of equity (d).

Damages on account of arrears of rent and arrears of interest within the chap. 27 are only those which arise within six years after they become due, or next after an acknowledgment of them in the mode expressed in the statute (e).

Damages for arrears of interest in respect of any sum in gross charged upon or payable out of advowsons are not within the section 42; for that section in terms applies to the damages for arrears of interest in respect of sums in gross charged upon or payable out of land or rent only.

Tithes, either when they are acknowledged to be due to some person and the right to them is not in dispute, or when the right to them is in question between spiritual persons only (ƒ), are recoverable in the spiritual courts (g) as well as in the temporal courts.

Legacies, and shares arising on the distribution of the estates of persons dying intestate (h), are recoverable in the spiritual courts as well as in courts of equity.

Courts of equity in general never decreed an account of tithes for more than six years (i). By 53 Geo. 3, c. 127, s. 5, no suit in equity or in any ecclesiastical court to recover the value of any tithes can be brought but within six years from the time when the tithes became due.

When tithes, legacies, or other property which might be recovered in any temporal court, are claimed, they must be recovered in the spiritual courts within the

(c) See Curtis v. Curtis, 2 B. C. C. 620, 631.

(d) Ibid.

(e) Sect. 42.

(f) Toller on Tithes, 248.

(g) 1 Woodd. 154; 2 Eagle on

Tithes, 335; ante, p. 342.

(h) Grignion v. Grignion, 1 Hagg. N. R. 535; Williams on Executors, pt. v. bk. ii. c. 3. (i) 2 Eagle on Tithes, 244.

same period as they are recoverable in the temporal courts (k).

tithes.

As regards tithes the context of this act seems to Sect. 43 of show that the sect. 43 is applicable to them as chattels only, that is, arrears of them. But the object of this section and the mode of its operation have been doubted (1).

The words "other property" in this section apply to only property recoverable in a spiritual court as well as in a temporal court, or, in other words, where the spiritual court and the temporal court have concurrent jurisdiction, as in the case of pensions or other ecclesiastical or spiritual profit made temporal, or by law admitted to be or abide in temporal hands (m), and not where the recovery is within the jurisdiction of the spiritual court exclusively.

The matters embraced by the three statutes 3 & 4 Will. 4, c. 27, and the 2 & 3 Will. 4, cc. 71 and 100, have now been shown. Some matters, however, are not embraced by any Statute of Limitations. Others are not included, in terms at least, in some of the provisions of the c. 27.

Matters not embraced by any, or only some, Statutes

of Limitation.

Dignities are not within any of the Statutes of Limi- Dignities. tation; and although, in general, not lost, yet under some circumstances may be affected by the length of time during which the rights thereto have been permitted to lie dormant (n).

duses and com

rations as an

The principal matters to which the maxim nullum Tithes, motempus occurrit ecclesiæ are still applicable are tithes, positions of moduses and compositions belonging to spiritual or certain corpoeleemosynary corporations sole as an inheritance. These inheritance. are unaffected by any Statute of Limitations and were not intended to be touched (o), and, when belonging to them as chattels merely, that is, as claiming the

(k) 3 & 4 Will. 4, c. 27, s. 43. (1) Vide ante, p. 342.

(m) Co. Litt. 159 a.

(n) Vide ante, p. 264.

(0) Dean and Chapter of Ely v. Bliss, 2 De Gex, M. & G. 459.

Lay advow

sons.

Advowsons as

to some sec

render and the payment thereof by the persons bound to render and to pay them to the person entitled to receive them and independent of the estate therein as between persons claiming them adversely, are within the 2 & 3 Will. 4, c. 100, and are not embraced by, but expressly excepted from, the 3 & 4 Will. 4, c. 27 (p). The question of the liability to such render or payment can only arise on a claim against the tithe payer, and never can be affected by a contest or litigation between persons claiming the estate in the tithes (q). Whether, where one claimant is barred by the statute set up by the other, the latter can afterwards maintain an action against a person claiming exemption from the tithes, may be a question (q).

Advowsons of a lay nature, as of hospitals, are not within the 3 & 4 Will. 4, c. 27 (r).

Advowsons of ecclesiastical benefices are not, in tions of c. 27. terms, within sections 24, 25, 26, 27 and 28 of the 3 & 4 Will. 4, c. 27. These sections in terms are applicable to land and rent only.

Advowsons not within

terms of sect. 28.

Some suits and services.

If advowsons be not within the section 28, yet as before this statute length of time was considered in equity as much a bar to the equity of redemption of an advowson as of any other estate (s), so now courts of equity will no doubt, by analogy to the 3 & 4 Will. 4, c. 27, adopt the period of limitation fixed by that section for land and rent.

The suits and services within this statute are those only for which a distress may be made. With the exception, therefore, of heriot custom, which, although a distress cannot be made for it (t), is included under the

(p) See Dean and Chapter of
Ely v. Bliss, 5 Beav. 574; 2 De
Gex, M. & G. 459; S. C. sub
nom. Dean and Chapter of Ely v.
Cash, 15 Mee. & W. 617.

(g) 2 De Gex, M. & G. 478.
(r) Vide ante, p. 358.
(8) 2 Kenyon, 53.

(t) 2 Inst. 132; Odiham v. Smith, Cro. El. 590; Hungerford v. Haviland, Latch. 38; 3 Bulst. 325. But see Rogers v. Birk mire, Rep. temp. Hardw. 247; Crew, C. J., in Hungerford v. Haviland, supra.

term heriot, those services for which a distress cannot be made, as suit to a court baron, when not arising under a feoffment or by prescription (u), those of which seisin is not had, or are claimed under a custom void in law (x), and reliefs claimed by executors (y), are not within this statute.

Those services which by common possibility may not happen or become due within the period fixed by the old Statute of Limitation, 32 Hen. 8, c. 2, and were therefore not within that statute (z), are not within the 3 & 4 Will. 4, c. 27.

advowsons.

Sums of money secured by mortgage, judgment, lien, Charges on or otherwise charged upon or payable out of advowsons, are not within the terms of the section 40; for that section applies to such sums when charged on or payable out of land and rent only. If, however, they are secured by bond or covenant, they are within the 3 & 4 Will. 4, c. 42, s. 3. Arrears of interest on any such sum, or any damages in respect of such arrears, are not within the section 42; for this section, in terms at least, embraces land and rent only.

claims.

Cases of breach of trust (a), of constructive fraud (b), Some equitable and of claims founded on equitable waste, as between a tenant for life and a remainderman (c), are not within the terms of the 3 & 4 Will. 4, c. 27.

In cases of an equitable nature not within the express terms of the Statutes of Limitations, but analogous to those of a legal nature within those terms, courts of equity will follow the analogy of those statutes (d).

(u) 52 Hen. 8, c. 9. (x) Bradby, 116.

(y) Co. Litt. 47 b, 83 a. But see 2 Leon. 179; 2 Roll. Rep. 371. (2) Co. Litt. 115 a; 2 Inst. 95; Bevill's case, 4 Rep. 8; Bennet v. King, 3 Lev. 21.

(a) Obee v. Bishop, 1 De Gex, F. & J. 137.

(b) The Marquis Clanricarde

v. Henning, 30 Beav. 175.'

(c) Duke of Leeds v. Earl Amherst, 2 Phill. 117.

(d) Duke of Leeds v. Earl Amherst, supra; O'Hara v. Creagh, Longf. & T. 65; Bateman v. Boynton, 14 W. R. 119; 35 L. J., N. S., Ch. 18; Ib.on app. 568, L. R., 1 Ch. App. 359.

tive law.

CHAPTER IV.

THE PERIODS OF LIMITATION.

Fixed by posi- THE periods of limitation are necessarily fixed by positive law, vary with the nature of the things to be claimed, and are regulated by the relative positions of the persons who are in, and those who are out of, possession. In any case, however, the possession, or quasi possession, ought not to be too short.

"Quis hoc credat nisi pro teste vetustas ?”

Where the possession is accompanied by a transfer of a public nature, the time of limitation is sometimes shorter than when accompanied by a transfer of a private character, or without any transfer, as in the case of the Statute of Fines (a).

....

But, independent of positive law, the particular space of time within which possession is to grow to the force and strength of property is not precisely determined, "either by natural reason, or the universal consent of nations; but it is to be adjudged by the opinion of good and true men upon the case, not without some considerable degree of latitude. . But, in fixing the particular period, a regard shall be had to the ancient owner and the new possessor. To the former, lest he should be too soon excluded from the privilege of following and finding out what he had lost. .. To the latter, lest he should undeservedly suffer damage when it is too late for him to gain redress by convicting the first injurious detainer, from whom the thing was honestly received; or when the thing is so riveted to his fortunes and

(a) 4 Hen. 7, c. 4; 3 K. & J. 350.