[24th July, 1833.]

(a) Except as mere matter of history, and for the purpose of shewing the extensive nature of the amendments introduced into this branch of the law, it would be immaterial to advert to its previous state. With this view, however, it may not be entirely useless to notice briefly its leading features and defects.

The periods of limitation which previously existed, depended mainly upon the 32 Hen. 8, c. 2, 21 Jac. 1, c. 16, and 4 Hen. 7, c. 24, upon the rules laid down by courts of justice respecting legal memory and presump

tion.

By 32 Henry 8, c. 2, a writ of right on the seisin of an ancestor (to which, till then, there was no limit except the

reign of Richard the First), was confined to sixty years; and a possessory action on the seisin of an ancestor to fifty years; and no real action, droitural or possessory, could be maintained by any person on his own seisin, after a lapse of thirty years; formedons in reverter or remainder, were required to be sued within fifty years; and it was enacted that no avowry or cognizance should be made for any rent or service after fifty years from the seisin of an ancestor or any other person.

The statute 21 Jac. 1, c. 16, limited the period for all writs of formedon to twenty years, and generally enacted that no person should make entry into any lands but within twenty years

next after his right of entry accrued. This, with the single exception of fine and non-claim, was the first and is the only limit by statute to a right of entry, which at common law was never taken away by lapse of time, but only by descent cast, discontinuance, or warranty.

The statute of 32 Hen. 8, c. 2, contained no saving, except as to rights which were in existence when it was passed; but 21 Jac. 1, c. 16, saved the right of persons under disability, when their rights accrued.

Besides these, the other statutes of limitation are the 9 Geo. 3, c. 16, by which the party is precluded from recovering upon a title beyond sixty years; but the operation of this act is very much limited, as it does not extend to liberties, franchises, or lands parcel of an honor which has been put in charge within sixty years, there being few lands which are not part of an honor remaining in the crown and continuing in charge; the 10 & 11 Wm. 3, c. 14, by which no writ of error for reversing a fine, or a recovery, or a judgment, can be brought after twenty years; and the 14 Geo. 3, e. 20, by which common recoveries cannot be disputed after twenty years, although the deed for making the tenant to the præcipe be lost, or, if the deed be produced, although the record be lost.

There were certain parties, estates, and interests, to which none of the statutes of limitation applied. For example, the statutes of limitation did not extend,

1st. To any incorporeal hereditaments, except quit rents and prescriptive services. Rents created or re

served by deed or act of parliament, were not within the 32 Hen. 8, c. 2, s. 4, because the statute only applied to cases where it was necessary to allege seisin; although the courts were in the habit of holding, that nonpayment for twenty years afforded a prima facie presumption of a release, and the receipt of them for twenty years, the like presumption of a grant, -nor to prescriptions by a que estate, as, where the right was claimed in respect of the ownership of an estate in land, as, common appendant, or the right to require corn to be ground at a mill; nor to actions or prescriptions in discharge, as, exemption from toll or services, or from common by certain beasts, &c.; nor to actions or prescriptions for casual rights or services which might not occur during the period of limitation, as, heriots, wrecks, estrays, royal fish, &c.; nor to rights of way, water, light, and other easements; nor annuities, or legacies charged upon land, judgments, or other specialties; nor to tithes in lay hands, for, by the 31 Hen. 8, c. 13, lay proprietors have the same rights as ecclesiastical persons; nor to advowsons, for, although they were within the 32 Hen. 8. c. 2, they were exempted from any limitation by the 1 Mary, c. 5, and 7 Anne, c. 18; nor to corporations aggregate, because they have no "predecessor."

2ndly. Nor to ecclesiastical bodies, colleges, and hospitals.

3rdly. Nor to actions for dower, because seisin need not be alleged; nor writs of escheat, because the seisin is not traversable in them; nor to actions of waste, because the land is not directly in demand.

In many of the preceding cases, the courts have been in the habit of supplying the deficiencies of the statute law by presuming that deeds have been executed and lost; and in doing this they have adopted the period of twenty years, during which continued enjoyment or continued disuse was sufficient to found a presumption that there had been a grant or a release. It would be idle now to go into the cases on the subject, but those who may be curious will find a tolerably full account of the leading authorities on the doctrines of presuming grants and releases, in my Essay on Marketable Titles, p. 410-517.

By the effect of this act, the acts of the 2 & 3 Wm. 4, c. 100, for shortening the time required, in claims of modus decimandi, or exemption from, or discharge of tithes,-the 2 & 3 Wm. 4, c. 71, for shortening the time of prescription in certain cases,-and the 3 & 4 Wm. 4, c. 42, s. 3, for the limitation of actions of debt on specialties, &c. (which are given in the following pages), the statutes of limitation are now reduced to a simple and uniform system, and extended to the various classes of persons, and the various estates and interests in land, and remedies for their recovery, which were not previously within their operation.

By the 4 Hen. 7, c. 24, a fine with proclamation was made a bar to all persons having present rights of entry, and not being under any disabilities, if they did not claim within five years after the proclamation made; to all

persons under disabilities, if they did not claim within five years after their disabilities were removed; and to all persons not having present

rights, if they did not claim within five years after their rights of entry accrued, unless under disabilities, and then within five years after the removal of their disabilities.

The commissioners, after observing that in many cases the statutes of limitation did not sufficiently protect purchasers, and that in others (alluding probably to the act just adverted to) they restricted too much the right of recovery, make the following observations:-" But the shorter period of limitation now in use, established by the statute of 4 Hen. 7, c. 24, we consider anomalous, unjust, and mischievous. However it may have been adapted to the times in which it passed, when the quieting of titles after the long civil wars of York and Lancaster might require some extraordinary remedy, it is not suited to the present state of society. It proceeds not on the long acquiescence of the claimant or those whom he represents, which is the just ground of prescription; but on the act of the party in possession, who, to derive any benefit from it, must be considered as holding an estate to which another is legally entitled. A convenience, certainly, sometimes is experienced from a bona fide purchaser being enabled, by levying a fine with proclamation, to protect himself against a lawful title which is discovered after his purchase, and which, though using reasonable diligence, he could not have detected earlier. If the practice of acquiring a title in this manner could be confined to cases of peculiar hardship, the law would be salutary, and might on that ground be justified. But unfortunately it is equally applicable to purposes of fraud." By the act for abolishing fines, this mode of acquiring a title is in effect tacitly superseded.