« EelmineJätka »
8. 2 8. 3
30 & 31 Vict.
PAGE 496", 240, 492
c. 83, s. 20 .. 563, 567, 590 s. 1
725 497) c. 107
51 c. 127
627 33 & 34 Vict.
501, 672 c. 132, ss. 1, 2
725 31 & 32 Vict.
c. 23, s. 1
457, 676 c. 4
ss. 9, 10, 12–18 676 c. 20, Ir. 459, 461
725 c. 40, ss. 1, 2
543, 547, 555 ss. 3, 4, 5..746—747*
ss. 1-4.. 555-556 s. 6 748
5576, 556 s. 7 748*, 667
ss. 6, 7 .. 557* ss. 8-12 748–750*
411*, 379 597
ss. 1-11.. 411–415. c. 89 51
415*, 287 c. 122, s. 33
ss. 13, 14., 416*, 415 32 & 33 Vict.
ss. 15-17 416* 230
685 477, 480
753 481 34 & 35 Vict. 588 c. 27, s. 1
725 416 c. 74, s. 2
270 s. 24 563.
51 ss. 26-28
567* 35 & 36 Vict.
611, 676, 695 s. 25
51 668 36 & 37 Vict. c. 66, s. 25 c. 83, s. 2
c. 42 c. 46
:. Add. ADDENDA.
Page 40, line 36.—Johnson v. Barnes is now reported L. R., 7 C. P. 592;
and has been affirmed, L. R., 8 C. P. 527. 51, line 1.-36 & 37 Vict. c. 75, continues the inclosure commis
sion until the 1st August, 1874. „ 67, line 44.—As to the remedies for injury caused by obstruction of
a highway, see also M° Carthy v. Metropolitan Board of Works, L. R., 8 C. P. 191; Bigg v. Cor
poration of London, L. R., 15 Eq. 376. 79, line 20.- As to Ackroyd v. Smith, see Thorpe v. Brumfitt,
L. R., 8 Ch. 650. „ 80, line 53.-As to the right of the public to deviate, where a public
way has become impassable, see Arnold v. Holbrook,
L. R., 8 Q. B. 96. 90, line 43.-See Holker v. Poritt, L. R., 8 Ex. 107. 92, line 45.- As to the right of eavesdropping, see Harvey v.
Walters, L. R., 8 C. P. 162. „ 108, line 44.- Add a reference to Pudsey Coal Gas Co. v. Corpora
tion of Bradford, L. R., 15 Eq. 167. „ 113, line 44.-See Ex parte Tomline, 21 W. R. 475, as to evidence
of the right of lord of manor to seashore. , 122, line 2.-See Booth v. Alcock, L. R., 8 Ch. 663.
line 39.-See Robinson v. Grare, 21 W. R. 569. „ 123, line 7.-See Younge v. Shaper, 21 W. R. 135. line 34.–See Dickinson v. Harbottle, 28 L. T., N. S. 186, as to
a claim to an extraordinary amount of light. 138, line 48.-As to the right of an annuitant to distrain, see also
Sollory v. Learer, L. R., 9 Eq. 22. » 202, note (8).-By 36 & 37 Vict. c. 66, s. 25 (2), it is enacted that no
claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of trust, shall be held to be barred by
any Statute of Limitations. line 55.-Locking v. Parker was reversed on appeal, L. R., 8
Ch. 30; and see p. 205, line 46.. „ 209, line 58.- Vane v. Vane is reported on appeal, L. R., 8 Ch. 383. „ 217, line 4.-See Hemming v. Blanton, 21 W. R. 636.
224, line 48.-See Bryan v. Condal, 21 W. R. 693.
charge in fee. Thomas v. Sylvester, L. R., 8 Q. B.
Page 257, tine 6.-A summons in a winding up, claiming interest, is a
demand in writing within 3 & 4 Will. 4, c. 42, s. 28.
Ex parte Alison, L. R, 15 Eq. 394. » 267, line 14.-Knox v. Gye is reported on appeal, L. R., 5 H. L. 656;
where it is laid down that there is no fiduciary relation between a surviving partner and the representatives of his deceased partner; and in taking the account between them the Statutes of Limitation are applicable. See also Taylor v. Taylor, 28 L. T.,
N. S. 189. „ 336, note ($).—The office of protector survives. Bell y. Holtby,
L. R., 15 Eq. 178. » 386, line 43.-In Ex parte White, L. R., 8 C. P. 106, the commission
having been lost, the time was enlarged and a dupli
cate commission issued. » 400, line 8.-As to estates tail belonging to Irish bankrupts, see now
35 & 36 Vict. c. 58, s. 50. , 405, note (a).-As to the effect of an assignment under this act, see
Re Batchelor, 21 W. R. 901. 413, note (d).-See Reg. v. Carnatic Rail. Co., L. R., 8 Q. B. 299. 504, line 38.- Noble v. Willock has been reversed on appeal, 21
W. R. 711. 514, line 10.-Add a reference to Cozens v. Crout, 21 W. R. 781. 555, note (a).— There is no apportionment under 33 & 34 Vict. c. 35,
of dividends on shares specifically bequeathed. Whitehead v. Whitehead, 29 L. T., N. S. 289. See, also, as to this act, Roseingrave v. Burke,
I. R., 7 Eq. 186. » 581, note (R).- A charging order under this section will not be granted
by the Judge of the Court for Divorce. Clarke v.
Clarke, L. R., 3 P. & M. 57. » 604, note (9).--As to the effect of registering a lis pendens, see
Beyfus v. Bullock, W. N. 1869, p. 36; Bury v.
Gibbons, L. R., 8 Ch. 747. » 627, note (f ).-For form of order, see Howson v. Trant, 21 W. R.
781. 693, note (8).-Add a reference to Re Strutt, 21 W. R. 880. 696, note (c).-See Re Taddy, 21 W. R. 863. 705, note (b).--A discrepancy was disregarded in Re Hemsley, L. R.,
16 Eq. 103. 719, line 58.-As to Bunting v. Marriott, see Sondon v. Marriott,
21 W. R. 808. „ 746, note (c).-After “ Higgs v. Dorkis,” add a reference to Leigh
v. Edwards, 21 W. R. 835.
PASSED IN THE REIGNS OF
KING WILLIAM IV. AND QUEEN VICTORIA.
2 & 3 WILLIAM IV. CAP. 71. An Act for shortening the Time of Prescription in certain Cases (a).
[1st August, 1832.]
1. Time limited for establishing rights of common and other profits
I. TIME LIMITED FOR ESTABLISHING RIGHTS OF COMMON AND
OTHER PROFITS À PRENDRE. WHEREAS the expression “ Time Immemorial, or Time whereof 2 f: 3 Will. 4, the Memory of Man runneth not to the contrary,” is now by
c. 71, s. 1. the law of England 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 ; for remedy thereof, be it enacted, That no claim which may be lawfully made at the common Claim to right of law, by custom, prescription (6), or grant, to any right of com- profits a prendre mon (c) or other profit or benefit, to be taken and enjoyed from not to be defeated
after thirty years' or upon any land of our sovereign lord the King, his heirs or
enjoyment by successors, or any land being parcel of the Duchy of Lancaster showing the comor of the Duchy of Cornwall (d), or of any ecclesiastical or lay
2 & 3 Will. 4, person, or body corporate, except such matters and things as c. 71, s. 1.
are herein specially provided for, and except tithes, rent, and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be
defeated in any other way by which the same is now liable to After sixty years' be defeated ; and when such right, profit, or benefit shall have enjoyment the right to be abso
been so taken and enjoyed as aforesaid, for the full period of lute, unless had
sixty years, the right thereto shall be deemed absolute and indeby consent or
feasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing (e).
This act extended to Ireland,
Subject-matter of the first section.
(a) By 21 & 22 Vict. c. 42, the provisions of the act 2 & 3 Will. 4, c. 71, shall, after the first day of January, 1859, extend and apply to Ireland.
(b) The reader is referred to note (1) at the end of this act, as to the nature of prescription; the difference between it and custom; what customs are valid; what things may or may not be claimed by prescription; and how a right depending upon it may be lost. (See post.)
(c) As to rights of common, see note (2) at the end of this act.
(d) The provisions of this act are not affected by the Act for limiting Actions and Suits by the Duke of Cornwall, in relation to Real Property. (23 & 24 Vict. c. 53, s. 2.)
(e) The several decisions upon this statute, although relating to many different subjects, have for the most part a relation to each other; the more convenient course therefore will be to commence with the statute and the several decisions upon it, rather than to distribute them amongst the subjects which are hereafter considered separately.
The first section relates to such claims as may be lawfully made at common law, by custom, prescription, or grant, to any right of common or other profit or benefit to be taken or enjoyed from or upon any land. Tithes, rent and services are excepted from this act. The stat. 2 & 3 Will. 4, c. 100, provides the limitation of time with respect to claims of a modus decimandi, or exemption from, or discharge of tithes. (See Acts for the Commutation of Tithes and Supplement thereto, by Shelford, 3rd ed.) The stat. 3 & 4 Will. 4, c. 27, post, limits the time within which actions and suits must be brought respecting tithes not belonging to a spiritual or eleemosynary corporation sole. The limitation of time for the recovery of tithes is not affected by the Act for the Commutation of Tithes in England and Wales. (See 6 & 7 Will. 4, c. 71, s. 49.)
It must be borne in mind that the first section of this act includes different subjects from those in the second, which distinguishes between easements and common, or profit à prendre, and that a different limitation is established for the first and latter cases. (Bailey v. Appleyard, 8 Ad. & Ell. 107; Lawson v. Langley, 4 Ad. & Ell. 890; Jones y. Richard, 5 Ad. & Ell. 413.) The right to receive air, light, or water, passing across a neighbour's land, may be claimed as an easement, because the property in them remains common; but the right to take “something out of the soil” is a profit à prendre, and not an easement. (Manning v. Masdale, 5 Ad. & Ell. 764; 1 Nev. & P. 172; Blewitt y. Tregonning, 3 Ad. & Ell. 554; 5 Nev. & M. 308; Bailey v. Appleyard, 3 Nev. & P. 257; 8 Ad. & Ell. 161.) Prescriptive rights in gross are not within the scope of the statute. (Shuttleworth v. Le Fleming, 19 C. B., N. S. 687; 14 W. R. 13.). This section applies only to profits à prendre in the land of another, and has no application to a copyholder's acts on his copyhold tenement. (Hanmer v. Chance, 34 L. J., Ch. 413; 13 W. R. 556.)