against the alienor, if a sole corporation, or if the head of a corporation aggregate of many, so long as he remain such head (r). These restrictive statutes have, in effect, as respects Effect of the operation of a fine and non-claim as against ecclesi- these acts. astical corporations aggregate, placed them in the same position as ecclesiastical corporations sole. An absolute title could not be acquired against the corporation to the fee simple, but only against the head of it during his own time, and so with respect to his successors from time to time during each of their times (y). This state of the law continued until the abolition of fines in the reign of William the Fourth (z). On that abolition the acquisition of a title against an ecclesiastical corporation, as well aggregate as sole, under 4 Hen. 7, was virtually abrogated, and the ancient maxim applicable to the church just noticed, but for the new periods of limitation applied to the clergy, presently to be noticed, would have recovered much of its vitality. The legislature has since almost entirely abrogated this maxim. Nearly contemporaneous with the abolition of fines a time was appointed within which all ecclesiastical persons are to recover lands, rents, advowsons, &c. (a). This application of the law, however, is to the corporeal possessions of the clergy. Little or nothing appears in the books in relation to acquiring rights of a prescriptive nature by the laity against ecclesiastical persons, so as to bind, not only the individual against whom such rights have been enjoyed, but also his successors in perpetuity. Formerly the laity could not prescribe in non decimando. And this was in favorem (x) Hunt v. Singleton, 3 Co. 60; Sale v. Bp. Cov. and Lich. ib. 59; Co. Litt. 45 a. As to Hunt v. Singleton see 6 East, 98, 103. (y) Co. Litt. 44 a, 45 a; Magdalen Coll. case, 11 Rep. 66; 1 Roll. Rep. 171, S. C. See also Barker (z) 3 & 4 Will. 4, c. 74. (a) 3 & 4 Will. 4, c. 27; 6 & 7 Vict. c. 54; infra, Sect. IV. ecclesiæ, lest, as was said, laymen should spoil the church, but they might prescribe in modo decimandi (d), and the rule was the same as well in the case of a lay rector as in that of a spiritual one (e). So the mere naked non-render of tithes would not support the defence of a conveyance or release of them (f). But the actual pernancy and receipt of tithes separate from and independent of any interest in connection with the lands themselves, supported by conveyances of the tithes, as well as of the lands, and perhaps even a disclaimer of the tithes by the rector, whether lay or spiritual (g), although by parol merely (h), is, against as well a spiritual rector (i) as a lay rector (k), and against grantees of the crown (1), such evidence of title as will warrant the presumption of a legal grant of the tithes to the owner of the lands. The principle applicable to the corporeal possessions of the clergy seems, however, to be equally applicable to prescriptive rights claimed as well in, upon, or over those possessions of the clergy, as against them personally, as well prior as subsequent to the 32 Hen. 8, c. 2, but, after the disabling statutes and until the reign of William the Fourth, in only a limited degree, as in the case of their corporeal possessions (m); and in the latter reign the principle was expressly applied to such rights, and when they are claimed and established for certain specified periods are made valid and eventually absolute (n). (d) Hob. 297; 1 Mad. 243, 245; 3 Bli. 297. (e) Fanshaw v. Rotheram, 1 Eden, 276; 3 Anstr. 705; 1 Mad. 243; Andrews v. Drever, 2 Bing. N. C. 1; 3 Bli. 251. (f) 2 You. & Jer. 368. (g) See Norbury v. Meade, 2 Bli. 211, 249, 256. (h) Ib. (i) Scott v. Airey, 3 Gwill. 1174; Strutt v. Baker, 2 Ves., Jun. 625; Williams v. Bacon, 1 Sim. & S. 415; S. C. on app. 3 Russ. 525; 3 Bli. 251. (k) See Norbury v. Meade, supra; Ross v. Aglionby, 4 Russ. 494. (1) Monck v. Huskisson, 1 Sim. 280. (m) See Barker v. Richardson, 4 B. & Ald. 579. (n) 2 & 3 Will. 4, cc. 71, 100; infra, Sect. IV. SECTION III. The Rise and Progress of Prescription down to the established able. These laws, in general, affecting the laity, or all those Time when persons, corporations as well as individuals, who are not not determinsubject to or affected by these laws in the same way as, or in a different degree to, the Crown, and the persons and corporations mentioned in the two preceding sections, are the subject of consideration in the present section. The time when these laws affecting the laity was established cannot be precisely determined, but their recognition and subsequent progress can be distinctly traced. From the earliest period these laws, as a part of our system of jurisprudence, appear to have been recognized and acted upon. Bracton, one of the justices in eyre in the reign of Henry the Third (o), mentions them. The title of chapter 22 of book 2 of Bracton's work (p) is, Qualiter acquiritur possessio per usucaptionem; and usucaptionem he explains to be sine titulo et traditione per longam, continuam et pacificam possessionem ex diuturno tempore; and in another place, per longam et pacificam seisinam, habitam per patientiam et negligentiam veri domini. "Ita erit," he says, "modus acquirendæ possessionis: longa enim possessio, sicut jus, parit jus possidendi, et tollit actionem vero domino petenti, quandoque unam, quandoque aliam, quandoque omnem, quia omnes actiones in mundo infra certa tempora habet limitationem ;" and, in general, actions, personal and mixed, were to be brought within a certain period on account of the defect of proof which would happen by lapse of time (q). The length of time, however, for which peaceable possession to give a title to land was (0) Crabb's Hist. Eng. Law, 157. (p) 10, 51 b. Early recogni tion of these L. E Prescription of two kinds-by statute and at common law. At common considered by the common law necessary, was not defined but was left to the discretion of the judges (r). Plowden also states (s) several instances of the care taken by the ancient law to limit a time for the public repose of the realm, and in order to put a stop to contention and avoid universal trouble to the subjects of the realm (t). The authority of Bracton, however, as well as of Glanvil, in our law, has not always been acknowledged (u), and is not now (x). Prescription is of two kinds (1) that which is limited from a certain time by act of parliament, as from the time of Henry the First, which was the first time of limitation set down by any act of parliament, and so from the reign of Richard the First (y); and (2) the prescription, time out of memory of man, was (z) at the common law, and limited to no time, is from the reign of King Richard the First, and the time from that reign was intended from the first day of his reign; for, from the time, being indefinitely, doth include the whole time of his reign (a), which commenced in the year 1189; but whether on the day of the death of the preceding sovereign, or on the day of his own coronation, has been the subject of controversy (b); but, in law, both kinds were all one (c). At common law, prior to the Statute of Merton (d), actions for the recovery of land were of two classes, possessory, or those wherein the possession of, as distinaction for re- guished from the dominium or property in, the land classes of covery of land. (r) Bract. 51 b. (8) Rep. 357. (t) 2 Jac. & W. 141. (u) See Fitz. tit. Garde, 71; Stowel v. Lord Zouch, Plowd. 353 a; but see 5 Reeves' Hist. Eng. Law, 570, 571; Hale's Hist. Com. Law, c. 8. (x) See Blundell v. Catterall, 5 B. & Ald. 382, and authorities there cited. The writer has also been informed by a professional was primarily in question, and droitural, involving that dominium or property (e); and the commencement of those actions, of both classes, was by writs corresponding in form to the nature of each class of action. And such writs were to be sued out within certain periods of time fixed by that law (ƒ). of time of before that In writs of right, at the common law for some years Computation prior to the Statute of Merton, a descent might be con- limitation in veyed from the time of Henry the First. That statute, writs of right however, ordained that there should be no mention of a statute. time so distant, but only from the time of Henry the Second, and that certain specified writs should not pass the last return of King John from Ireland into England, which was in the twelfth year of his reign (g), and that certain other specified writs should not pass the first voyage into Gascony of the then king, Henry the Third (h). Westminster 1. By the Statute of Westminster 1 (i), a new time of By Statute of limitation was appointed, in the following manner: in writs of right no person was to declare of the seisin of his ancestor beyond the time of King Richard. The time within which certain other specified writs were to be brought was to be computed from the first voyage of Henry the Third into Gascony, and the time within which certain other specified writs were to be brought was to be computed from the coronation of that monarch (k). In thus fixing the periods of limitation with reference Effect of that to past events of this character, instead of computing computation. the time from the expiration of a specified number of years next before the time when the right or title of the (e) 3 Com. 179 et seq. (f) Hale's Hist. Com. Law, 123. (g) Ib. 122. (4) Of the statute of Merton, Lord Brougham said, it is only different from other statutes, inasmuch as it is in substance decla ratory, and in form somewhat dif- (i) 3 Edw. 1, c. 39. (k) See also Stat. Westm. 2; 13 Edw. 1, cc. 2, 46. |