his Duchy of Cornwall on the other hand, vested in the Prince and Duke in such right as part of the soil and territorial possessions of the said duchy; but is not to extend to the mines and minerals in or under land below high water mark, parcel of any manor belonging to her Majesty in right of her Crown (1). Then, that all mines and minerals lying below low water mark under the open sea, adjacent to but not being part of such county, are, as between her Majesty in right of her Crown on the one hand and the Prince and Duke on the other hand, vested in her Majesty in right of her Crown, as part of the soil and territorial possessions of the Crown (m). And also enacts, that the expression "mines and minerals" shall comprehend all mines and minerals, and all quarries, veins or beds of stone, and all substrata of any other nature whatsoever, and the ground and soil in, upon and under which they lie (n). By the 23 & 24 Vict. c. 53, all the provisions of the 9 Geo. 3, applicable to the Crown, are extended and made applicable to the Duke of Cornwall, as if reenacted, and he named throughout where the Crown is named; subject, however, as to the property and possessions included in it, to the sects. 72 and 75 of the 7 & 8 Vict. c. 105, with respect to the property and possessions included therein, but is not extended to the property or possessions in relation to which provision for the limitation of actions and suits, and for quieting titles, is made by the 7 & 8 Vict. c. 105, nor affect either the 2 & 3 Will. 4, c. 71, or the 2 & 3 Will. 4, c. 100 (o). In the present reign, also, the 9 Geo. 3, as amended by 24 & 25 Vict. c. 62 (p), was also by the latter sta tutes extended to the Duke of Cornwall, and to the acts 7 & 8 Vict. c. 105, and 23 & 24 Vict. c. 53; and the amending statute is to be construed with and deemed part of the two latter statutes (q). SECTION II. The Rise and Progress of Prescription down to the tempus ap The principle or maxim applied in the case of eccle- Maxim nullum siastical persons generally, in relation to their posses- plied to the sions in right of the Church, was, as in the case of the clergy. Crown, nullum tempus occurrit ecclesiæ. The reason for this application was, as in the case of the Crown, that the interests of the Church, as a corporation, should not suffer from the supineness, the negligence, or the connivance, of the individual member immediately in the possession of the property. "It is difficult," said Eyre, B. (r), "to settle the bounds of this maxim. It is clear that the church shall in no case be barred by such imputed laches as would bar private persons; that the Statutes of Limitation shall not extend to it. Whether the maxim should go further I much doubt. With respect to presumption arising from the acts of other persons I think it ought to have the same force against the church as against private persons.. But nothing is to be presumed from the laches of the church in their not claiming." or possession Until the reign of Henry the Seventh, neither the No alienation alienation by ecclesiastical persons of the lands belonging affected the to them in their corporate capacity (s), nor the posses- successors. (2) 24 & 25 Vict. c. 62, s. 2. (r) 3 Gwill. 1176; 2 E. & Y. 344; 1 Eagle on Tithes, 99. (8) Litt. s. 643; Fitzh. N. B. 50 c. Statute of Fines as affecting the clergy. sion of those lands acquired against, or from, them without alienation, was binding upon their successors, but only upon themselves and such of their successors as submitted to such alienation or possession; for none of the Statutes of Limitation, appointing certain times within which certain entries were to be made and actions were to be brought for the recovery of lands belonging to such persons in that capacity, were binding upon them so as to exclude their successors (s). In general, parsons and vicars have an estate for life only in the possession of their benefices, and the fee is in abeyance (t). And therefore such persons could not maintain a writ of right. The highest writ they could have was a juris utrum (u), a possessory writ only, and is a great proof that the right of the fee is not in them nor in any others (x), but in abeyance. For the benefit of the Church and their successors, they are, in some cases, esteemed in law to have a fee simple qualified; but to do anything to the prejudice of their successors, in many cases the law adjudgeth them to have in effect but an estate for life (y). Thus if a parson or vicar aliened parcel of his glebe to another in fee and died or resigned, his successor might well enter notwithstanding such alienation (z). So if a parson received rent of the tenant of the land, aliened by his predecessor, he could not during his life have a juris utrum, but his successors could have such writ (a). In the reign of that monarch was passed the Statute of Fines (b). By that statute, a fine with proclamations, after five years from the last of them, gave, in general, with exceptions in cases of certain personal disabilities, absolute right and title to the property comprised in it. (s) Croft v. Howel, Plowd. 538 (u) Plowd. 538. After this statute and down to the reign of Elizabeth, the clergy, with some distinctions however founded on the nature of their capacity as corporations aggregate or sole, were bound by a fine and a non-claim for five years. Thus, corporations which of themselves had absolute estate and authority, as dean and chapter, colleges, and such like, were bound by fine and non-claim thereon for five years (c). But corporations which of themselves had no absolute estate or authority in their possessions, as a bishop, dean, parson, vicar or prebendary, or such like, were only bound by a fine and non-claim during his own time, and so of each successor during his own time (d). In the following reign was passed another statute which affected some of the clergy. This was the 32 Hen. 8, c. 2, and enacted that no person should sue a writ of right or make any prescription, title, or claim, of or to any manors, lands, tenements, rents, annuities, commons, pensions, portions, corrodies or other hereditaments otherwise than upon the seisin or possession of his ancestor (e) or predecessor (ƒ), which had been or then was or should be seised within sixty years next before the teste of the writ or before the prescription (g). The statute also enacted that no person should have action possessory, otherwise than on such seisin or possession, for any manors, lands, tenements or other hereditaments within fifty years next before the teste of the original writ (h), and on his own seisin or possession for any manors, lands, tenements or other hereditaments above thirty years next before such teste (i), or make any avowry or cognizance for any rent, suit or service, and allege therein any seisin thereof in the possession of his ancestor or predecessor, or in his own possession, any (i) Sect. 3; Bevil's case, 4 Co. 10. Some of them Acts restraining alienation or in the possession of any other whose estate he should pretend or claim to have, above fifty years before the making of the avowry or cognizance (k), and that all formedons in reverter and in remainder, and scire facias upon fines, should be sued within fifty years next after the title and cause of action accrued and not after (1). And that if in any such cases the seisin within the periods prescribed could not be proved, and should be traversed (m), all such persons and their heirs were to be barred for ever of all the said writs, actions, avowries, cognizance, prescription, title or claim (n). A bishop or a parson making, after this statute, a title upon the seisin of a predecessor, was expressly within the statute (o). So, where a juris utrum passed against a parson upon the trial of a seisin, his successor was barred by the trial, because within the equity of the statute (p). A dean and chapter were not within the statute, because they make title on their own seisin, and not on the seisin of their predecessors (g). In the reign of Elizabeth and of James the First the by the clergy. clergy generally were restrained from alienating their possessions otherwise than by way of lease (r) or by way of exchange (s), and from charging them in any way (†). And the acceptance, by a successor, of rent reserved by a lease which is void, is no affirmance of such a lease, but merely creates a tenancy from year to year (u). Although, however, the statutes of the 1 and 13 Eliz. make absolutely void all alienations other than leases in the mode expressed, yet as these statutes were made for the benefit and protection of the successor only, alienations not warranted by them are not void but good (k) Sect. 4. (7) Sect. 5. (m) See 1 Jac. & W. 557. (0) Bro. Read. Stat. Lim. 33. (7) Ib. 33, 60. (*) 1 Eliz. c. 19; 13 Eliz. c. 10. (8) 14 Eliz. c. 11; Co. Litt. 45a, 325 b, 342 a. (t) 13 Eliz. c. 20; Doe v. Somerville, 6 B. & C. 126; Doe d. Broughton v. Gully, 9 Ib. 344; Shaw v. Pritchard, 10 Ib. 241. (u) Doe d. Bramall and another v. Collinge, 7 C. B. 939. |