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claimant arose, our ancestors either did not perceive, or neglected, the obvious consideration that the continued lapse of time would render necessary, from time to time, fresh periods to be fixed. Through succeeding ages, until the reign of Henry the Eighth, this defect in the law continued, and these periods remained to be computed from the events specified in the Statute of Westminster 1, and the insecurity of property for want of a reasonable limitation of time was the most extensive grievance in our civil institutions (f).
In the reign of Henry the Seventh was passed the Statute of Fines (g). By that statute, after the period of five years from the last proclamation of a fine, all title, claim and interest which had accrued to and in the property at the time of such proclamation, were excluded. The properties of such a fine were afterwards communicated to fines levied before the justices of assize at Lancaster (h); to fines levied before the high justice of the county palatine of Chester, or his deputy(i); to fines levied in the Portmoot Court of the city of Chester for lands within the county of that city (k); to fines levied before the justices of the county palatine of Durham (1); and to fines levied before the justices of
; Wales (m).
Now, however, that fines have been abolished (n), these statutes have been virtually repealed, and a title by non-claim for so short a period as
five years cannot now be acquired. Computation The periods of limitation prescribed by the Statute of the periods of Westminster 1, c. 39, continued until the reign of of limitation altered again. Henry the Eighth, when the policy of measuring the in the reign of time of limitation for commencing actions by a certain 8
number of years, computed from the time of the seisin or possession of the ancestor or predecessor of the
(f) 4 Q. B. 354.
(1) 5 Eliz. c. 27.
(m) 34 & 35 Hen. 8, c. 26, s. 40, amended by 5 Geo. 4, c. 106, s. 26.
(n) 3 & 4 Will. 4, c. 74 (E.); 4 & 5 Will. 4, c. 92 (I.).
claimant in some cases, and of the seisin or possession of the claimant himself, was adopted in the place of the periods prescribed by that statute. In the thirty-second year of this latter reign was passed the statute, chapter 2, and stated in its preamble that the inconvenience of the time of limitation extending and being so far and long time past was a great occasion of much trouble, vexation and suits, so that no man, although he and his ancestors, and those whose estate he or they had, had been in peaceable possession of a long season, of and in lands, tenements and other hereditaments, was or could be in any surety, quietness or rest of and in the same without a good remedy and reformation be provided. The statute then enacted upon what seisin and within what time certain writs, and every prescription, title or claim of or to any manors, lands, tenements, rents, annuities, commons, pensions, portions, corodies or other hereditaments, and also all avowries or cognizance for any rent, suit or service, was to be brought and made, as has been already noticed in the last section.
In the reign of James the First the periods of limita- – and of Jac. 1. tion prescribed by the statutes of Westminster 1, and the 32 Hen. 8, c. 2, were still further limited by the legislature, by a statute professedly made “for quieting of men's estates and avoiding suits,” which restricted the time for bringing writs of formedon in descender, in remainder and in reverter, and for making any entry for or into any manors, lands, &c., to twenty years next after the right or title thereto should accrue (o).
In actions touching advowsons, however, there was No limitation not in England, until the reign of William the Fourth, any limitation of the time within which such actions were to be brought; at least not any later than the times of Richard the First and Henry the Third. The words of the 32 Hen. 8, c. 2, indeed were comprehensive
of time for advowsons.
(0) 21 Jac. 1, c. 16.
enough in themselves to embrace advowsons; but the mischief which would arise from that interpretation of the language of it was apparent. For if the incumbent had lived sixty years and had died, and a stranger had presented, the owner of the advowson could not have had a quare impedit or darrein presentment; and yet the mischief was great by reason of the incumbent living so long, and so in similar cases (p); nevertheless the mischief was not remedied by the exposition of the words of the act, nor by the equity of the act, until the reign of Queen Mary (9). By the Statute 2, c. 5, passed in the last year of her reign, the act of 32 Hen. 8 was declared not to extend to any writ of right of advowson, quare impedit, or assize of darrein presentment or jus patronatus. Besides these reasons for not extending the statute of Hen. 8 to advowsons, the time of limitation prescribed by it was based upon seisin, and therefore to extend that statute to actions in which seisin, not being issuable, could never become the subject of evidence or trial, would be absurd (r). So, until the present reign (s), there was no limitation of time for
such actions in Ireland (t). Consequence One consequence of prescription at common law was, of prescription that prescriptive rights to profits and easements to be law.
taken in, or enjoyed over, the soil of another, could only be established by what is deemed legal proof of an adverse enjoyment for 640 years, or from the time whereof the memory of man runneth not to the contrary, or during legal memory.... But the limits of legal memory were fluctuating. They were long made to depend upon the period for bringing a writ of right, which, till 32 Hen. 8, was not any certain period before the commencement of the suit, but dated from some historical event fixed from time to time, as the beginning of the reign
(p) Co. Litt. 115a; Plowd. 371.
(8) 6 & 7 Vict. c. 54.
(t) See London v. Derry, 1 Sinythe's Ir. Rep. 479.
of Henry the First; the return of king John'out of Ireland; the journey of king Henry the Third into Normandy; or the coronation of king Richard the First. The last epoch being fixed by the Statute of Westminster 2, c. 46 (u), as the time after which seisin must be proved to maintain a writ of right, it was from thence adopted as the commencement of legal memory. When 32 Hen. 8 was passed, the reign of Richard the First was adhered to, and is considered the commencement of legal memory for all purposes at the present day (2). And the consequence of this law was, that a right claimed by prescription could be always disproved, by showing that it did not, or could not, exist at any one point of time since the commencement of legal memory; that at some subsequent period the servient tenement, or that over which the right was exercised, and the dominant tenement, or that to which the right was attached, once belonged to the same individual, whereby the prescriptive right was extinguished (y), that is, when such individual had in one tenement as high and perdurable an estate as he had in the other(z).
Prior to the two statutes enacted in the reign of Wil- Anomalies of liam the Fourth, and presently to be noticed, the law of such prescrip
tion, England applicable to prescriptive rights, in relation to their acquisition and enjoyment, was of an anomalous character; and even since those statutes, as regulated by them, is applied and operates, as will be shown
presently, in a mode differing from that when it is applied to land and other matters. That law, as applicable to such rights, was also productive of much inconvenience, and, not unfrequently, of considerable injustice. In the reign of Edward the First (a) the legislature adopted the reign of Richard the First as the date from which (u) This epoch was fixed by the
(y) Ib. Stat. of Westm. 1, Edw. 1, c. 39. (2) Co. Litt., 114 b.
(2) 1st Rep. Commis. on Law (a) 3 Edw. 1, c. 39. of R. P.51.
the limitation in a real action was to run, and thereupon the courts of law adopted it as the period to which, in all matters of prescription, legal memory, which till then had been confined to the time to which living memory could go back, should thenceforth be required to extend; and although in the reign of Henry the Eighth (6), the legislature again altered the period within which rights to real estate could be asserted by parties out of possession, the courts on this occasion omitted to follow the analogy of the recent statute, as fixing the date from which legal memory was to commence, as they had done on the passing of the statute of the 3 Edw. 1, c. 39, and in all that related to prescription adhered to the previously established standard. Hence, as time went on, the adoption of a fixed epoch as the time from which legal memory was to run was attended by grievous inconvenience and hardship. Possession however long, enjoyment however uninterrupted, afforded no protection against stale and obsolete claims on the assertion of long-abandoned rights. And as parliament failed to intervene to amend the law, the courts resorted to fictions and presumptions to supply the deficiency of the law in the matter of rights acquired by possession and enjoyment. When the doctrine of presumptions had proceeded far towards its development, the legislature at length interfered, and, as respects certain prescriptive rights at common law, fixed certain periods of possession or enjoyment, as establishing prescriptive rights. But with regard to all prescriptions or customs, not provided for by statutory enactment, the law remains as
before(c). - and their In thus fixing the time of prescription at common consequences. law from the reign of Richard the First, by analogy to
the Statute of Westminster 1, c. 39, it was forgotten
(6) 32 Hen. 8, c. 2.