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of the period, and the preposterous negligence of succeeding ages left that reign as the point from which legal memory must be dated. Thus the limitation, which ought to have afforded no more than a reasonable time for dispossessed persons to advance their claim, was extended to 650 years, and daily increasing. It is hardly credible that, in the nineteenth century, juries were required to pronounce a verdict on oath respecting matters full of difficulty as they stood in the year of our Lord 1189. What could follow but obscurity, confusion, litigation, and expense (d)?
In this section, and the preceding one, have been Alterations thus shown the rise and progress of these laws generally, in relation to the clergy and the laity, down to the commencement of the reign of William the Fourth. In his reign, extensive and important alterations in these laws affecting both these classes of persons in common, though not to the same extent, were made, and these alterations are proposed to be shown in the next section.
in the law,
The Rise and Progress of Prescription, in and since
the Reign of William the Fourth, as affecting the Clergy and the Laity in common.
Shortly after the commencement of the reign of Preliminaries William the Fourth, a royal commission was issued for to, and the investigating and considering the existing laws of this ing, the alteraclass, and their operation generally. Their importance to the interests of society, in excluding litigation and
(d) 4 Q. B. 354.
quieting titles to property, induced the legislature, in making, about the same time, various extensive and important alterations in and improvements of the laws of real property; and, among others, to extend such existing laws to things and to persons which were not within them, to fix new periods within which actions and suits in relation to such property and to claims therein and thereto were to be brought, and to simplify the remedies for trying the rights to such property. These objects were accomplished, and are now, in general, regulated by the 2 & 3 Will. 4, c. 71, the 2 & 3 Will. 4, c. 100, and the 3 & 4 Will. 4, c. 27, and
how accomplished will now be shown. How rights
In general, a man cannot establish a right by lapse acquired by time and
of time and acquiescence against his neighbour, unless acquiescence. he shows that the party against whom the right is acPresumption quired might have brought an action or done some act in favour of.
to put a stop to the claim, without an unreasonable waste of labour and expense (k). But the policy of the law has been, and in latter times more especially, to infer the right, where practicable, from actual user and enjoyment, and the contrary. In the case of rights of common, of rights of way, of rights to lights
, and to water, from the exercise of each respectively, the presumption of a legal origin has been from time to time made, and therefore made (according to Lord Mansfield, who had a large share in the establishment of this doctrine, and who went the length of saying, in Eldridge v. Knott (1), that a jury should presume anything in favour of possession), "because it is for the furtherance of justice and for the sake of peace when there has been a long exercise of an adverse right. In like manner, è converso, from nonuser, and more especially from adverse user, a conclusion against the right arises. And in all these cases
the object has been effected, until the stat. 2 & 3 Prescription Will. 4, c. 71, by recommending the jury to find in Wili. 4, c. 71.
Act, 2 & 3 each case such legal origin as was adapted to the establishment of the right, and with the avowed object, and, as it was supposed, with the necessary effect, of fortifying and confirming this principle and practice, that act was introduced (m); and in the course of legislation then and since, parliament has been actuated by a desire to settle titles and rights (n); and the courts both of law and equity have ever endeavoured to give effect to the Statute of Limitations, and to narrow the means of taking cases out of the operation of that statute (o). The occasion of the enactment of the Prescription The occasion
of it. Act (p) is well known. It had been long established, that the enjoyment of an easement as of right for twenty years was practically conclusive of a right from the reign of Richard the First; or, in other words, of a right by prescription, except proof was given of an impossibility of the existence of the right from that period. A very common mode of defeating such a right was proof of unity of possession since the time of legal memory. To meet this, a grant by a lost deed was invented; but in progress of time a difficulty arose, in requiring a jury to find upon their oaths that a deed had been executed which every one knew never existed. Hence the Prescription Act (9). And though the presumption did not always proceed on a belief that the thing presumed had actually taken place, yet “ a technical efficacy was given to the evidence of possession beyond its simple force and operation;" and
though in theory it was mere presumptive evidence,
(m) Q. B. 326. See also 4 Tyrw. 507.
(n) 8 Exch. 864.
v. Jones, 4 CI. & F. 382, 395.
(p) 2 & 3 Will. 4, c. 71.
C) Per Cur., Mounsey V. Ismay, 11 Jur., N. S. 141.
in practice and effect it was a bar”(r). This statute was professedly “ for shortening the time of prescription in certain cases," and states in the preamble that the expression “ time immemorial, or time whereof the memory of man runneth not to the contrary, was in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice;" and for remedying those evils modifies the effect of the existing law upon the title to rights of common and other profits or benefits to be taken and enjoyed from or upon any land, except tithes, rents, and services (s); to rights of and other easements and to watercourses, and the use of any water to be enjoyed or derived upon,
or from any land or water (t), and also to the access and use of light to any building (u); and after the enjoyment thereof under certain specified conditions, for a specified number of years, according to the nature of the right, secures the enjoyment thereof in a qualified way, and eventually, under certain circumstances, renders them absolute and indefeasible. This statute was not extended to Scotland or Ireland, but in the present
reign (x) was extended to Ireland. Moduses and The 2 & 3 Will. 4, c. 100, was professedly “for exemption from tithes,
shortening the time required in claims of modus deci2 & 3 Will. 4, mandi, or exemption from, or discharge of, tithes.”
And in its preamble states that “the expense and inconvenience of suits instituted for the recovery of tithes may and ought to be prevented, by shortening the time required for the valid establishment of claims of a modus
(r) 2 Stark. Ev. 669 ; 4 Tyrw. 507.
(8) Sect. 1.
(t) Sect. 2.
decimandi, or exemption from or discharge of tithes," and then modifies the existing law in relation to all prescriptions and claims (1) of or for any modus decimandi ; (2) of or to any exemption from or discharge of tithes by any composition real or otherwise (y); and (3) every composition for tithes made or confirmed by the decree of any court of equity in England in suits to which the ordinary, patron and incumbent were parties and not afterwards set aside, abandoned or departed from, have been confirmed and made valid in law (2), and upon evidence showing the payment or render of such modus, or the enjoyment of the land without payment or render of tithes, money or other matter in lieu thereof, for certain specified periods, under certain specified conditions, the claims are rendered valid, and eventually absolute and indefeasible.
This latter statute, providing as it does for rights A statute of to tithes, and shortening the time for making out a but differing
limitations, claim in discharge of tithes, is decidedly a statute in operation
from the forof limitations as regards tithes, though it operates in a mer act, and very different way from the 3 & 4 Will. 4, c. 27 (a). The the 3 & 4 Will.
4, c. 27. same remark is applicable to the 2 & 3 Will. 4, c. 71. The difference in the operation of the 2 & 3 Will. 4, c. 71, and the 2 & 3 Will. 4, c. 100, as compared with the 3 & 4 Will. 4, c. 27, will be noticed hereafter.
The persons to which the 2 & 3 Will. 4, c. 71, and the The persons 2 & 3 Will. 4, c. 100, extend are all natural persons and affected by the
. all corporations aggregate and sole, spiritual and temporal, including the crown and the Duke of Cornwall. The former of these two acts also extends to the person for the time being entitled to the Duchy of Lancaster.
The 3 & 4 Will. 4, c. 27, had for its primary object, 3 & 4 Will. 4, as indicated by its title, “the limitation of actions and
c. 27. The
primary suits relating to real property, and for simplifying the
(y) Sect. 1. (z) Sect. 2.
(a) 2 De Gex, M. & G. 469.