remedy by distress will arise when the lessee comes into possession (Co. Litt. 47 a) for all the arrears. (2 Roll. Abr. 446.) 3 & 4 Will. 4, c. 27, s. 1. A lease by a bishop of tithes only, rendering the ancient rent, was held void against the successor, because there was no remedy for the rent by Lease of tithes. distress or assize. (Tanlintine v. Denton, Cro. Jac. 111; Dean and Chapter of Windsor v. Gover, 2 Wms. Saund. 230.) But by stat. 5 Geo. 3, c. 17, all leases for one, two or three lives, or for any term not exceeding twenty-one years, of any tithes, tolls or other incorporeal hereditaments without any lands by any bishop, college or hall, dean and chapter, precentor, prebendary, hospital or any other person who is enabled by statute to make such leases of any corporeal hereditaments, are as effectual against the lessors and their successors, as any leases of corporeal hereditaments are by virtue of 32 Hen. 8, c. 28, and an action of debt against the lessee is given for the recovery of such rent. It is perfectly clear that, in point of law, tithes, being an incorporeal hereditament, cannot pass by parol, but by deed only. Therefore where, by an instrument not under seal, A. agreed to let to B. on lease the rectory of L., and the tithes arising from the lands in the parish of L., and also a messuage used as a homestead for collecting the tithes, at a yearly rent of 2007., the rent being in arrear, A. distrained, and B. having brought trespass, it was held, that the distress was altogether unlawful, because the agreement, not being under seal, did not operate as a demise of tithes, and no distinct rent was reserved for the homestead. (Gardiner v. Wilkinson, 2 Barn. & Ad. 336.) By stat. 32 Hen. 8, c. 2, s. 4 (10 Car. 1, sess. 2, c. 6, Irish,) no person Old limitation should make any avowry or cognizance for any rent, suit or service, and act as to rents. allege any seisin of any rent, suit or service in the same avowry or cognizance, in the possession of his or their ancestors or predecessors, or in his own possession, or in the possession of any other whose estates he shall pretend or claim to have above fifty years next before the making of the said avowry or cognizance. This provision was held to apply only where it was necessary to allege seisin, and not where rent was expressly created by deed, the commencement whereof could be shown (Co. Litt. 115 a; 8 Rep. 64), or by act of parliament (Faulkner v. Bellingham, Cro. Car. 80), or by will (Collins v. Goodall, 2 Vern. 235), as to which there was no prescribed period of limitation, either at law or in equity. (Cupit v. Jackson, M'Clel. 495; 13 Price, 721. See White v. James, 4 Jur., N. S. 1214; and Stackhouse v. Barnston, 10 Ves. 467; Foster's cuse, 8 Rep. 128; De Beauvoir v. Owen, 19 Law J., Exch. 182.) So that arrears for any number of years might have been recovered unless there was evidence to raise a presumption of payment. (10 Ves. 467.) But mere length of time, short of fifty years, the period fixed by the stat. 32 Hen. 8, c. 2, and unaccompanied with other circumstances, was not of itself sufficient ground to presume a release or extinguishment of a quit rent. (Eldridge v. Knott, Cowp. 214, cited 10 Ves. 467, 468.) As to the use of the word "rent" in this statute, see Doe v. Angell, 9 Q. B. 528, quoted in note to sect. 9, post. (g) An annuity is a thing very distinct from a rent-charge, with which Annuities. it is frequently confounded; a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor. (2 Bl. Comm. 40.) The material distinction between an annuity and a rent is, that the former is a charge on the personal estate only, and the latter on the real. (Co. Litt. 2 a; 114 b, 20 a.) An annuity charged upon land is by this clause included in the word Annuities charged "rent" as used in the act. An annuity charged by will on lands, with on land. a power of distress in default of payment after twenty days, was held to be extinguished by sect. 2, twenty years after the first right to distrain accrued after the testator's death. (James v. Salter, 3 Bing. N. C. 544.) Six years' arrears only of such an annuity can be recovered under sect. 42, in proceedings other than an action on a specialty. (Francis v. Grover, 5 Hare, 39.) But if such an annuity be secured by specialty, twenty years' arrears can be recovered, under 3 & 4 Will. 4, c. 42, s. 3, in an action on the specialty. (Strachan v. Thomas, 12 Ad. & El. 536.) 3 & 4 Will. 4, c. 27, s. 1. Annuities not charged on land. Escheat. Persons. Crown, when bound by acts of parliament. An annuity given by will and not charged upon land, is within the provision as to legacies in sect. 40. (Ashwell's Will, Johns. 112.) Lord St. Leonards seems to be of opinion that such an annuity would be extinguished if no payment were made for twenty years. (R. P. Stat. 138, 2nd ed.) But it has been suggested that time must be reckoned separately with regard to each payment, and that the annuity would not be extinguished by non-payment for twenty years. (Darb. & Bos. Stat. Lim. 126.) Such an annuity has been decided not to be within sect. 42. (Roch v. Callen, 6 Hare, 531.) If such an annuity be secured by bond or covenant, the non-payment of each instalment is a distinct breach, and time runs, under 3 & 4 Will. 4, c. 42, s. 3, against each as it becomes due. (Amott v. Holden, 18 Q. B. 593.) A terminable annuity for ten or twenty years is within the act. (Uppington v. Tarrant, 12 Ir. Ch. R. 269.) A gross sum of money charged upon lands, to be paid by yearly instalments, and secured by power of distress, is within this and the 42nd section. (Ib. 262.) (h) An escheat was in its nature feodal. A feud was the right which the tenant had to enjoy lands, rendering to the lord the duties and services reserved to him by contract. After a grant made, a right remained in the lords, called a seignory, consisting of services to be performed by the tenant, and a right to have the land returned on the expiration of the grant as a reversion, called an escheat. (Burgess v. Wheate, 1 Eden, 191.) Escheat is founded on the principle that the blood of the person last seised in fee is by some means utterly extinct and gone; and since none can inherit his estate, but such as are of his blood and consanguinity, it follows as a regular consequence that the inheritance must fail. (2 Inst. 64; Wright's Ten. 115.) Escheat may happen from default of heirs, as where the tenant dies without any relations on the part of any of his ancestors, or where he dies without any relations on the part of those ancestors from whom the estate descended, or where, until the stat. 3 & 4 Will. 4, c. 106, s. 9, (see post,) he died without any relations of the whole blood. An escheat may also arise from the corruption of the tenant's blood, consequent upon an attainder for treason or felony, by which he becomes incapable of inheriting, and, until recently, of transmitting anything by heirship. (See 3 & 4 Will. 4, c. 106, s. 10, and note, post.) On the subject of escheat, see 2 Bl. Comm. 241-257; Cruise's Dig. tit. XXX. ; Harg. Co. Litt. 18 b, n. (2); Henchman v. Att.-Gen. (2 Sim. & Stu. 498; 3 M. & K. 492); and the note to Att.-Gen. v. Sands (Tudor, L. C. Conv. 664, 2nd ed.) (i) The poor of a parish are a class of persons within the meaning of the word "persons" in this section, in a case where the rents of property are applicable for the benefit of such poor. (St. Mary Magdalen College, Oxford v. Att.-Gen., 6 H. L. C. 189; 3 Jur., N. S. 675; 26 L. J., Ch. 620.) The Attorney-General, whether suing ex officio, or at the relation of others, is not a "person" having a right to bring an action or suit in equity to recover land, within the meaning of this act, he is only part of the machinery by which the rights of others are sought to be enforced. (Ib. See Att.-Gen. v. Magdalen College, Oxford, 18 Beav. 223; sect. 24, post.) 66 The king having the prerogative of not being included within the words person or persons, bodies politic or corporate," used in an act of parliament, whether affirmatively or negatively, (11 Rep. 68,) is not bound in his public capacity by the general words of an act of parliament, unless named; (7 Rep. 32; 11 Rep. 68; Plowd. 240; 1 Str. 516; 1 Show. 464; Show. P. C. 185; Hall v. Maule, 4 Ad. & Ell. 284; Rex v. Wright, 1 Ad. & Ell. 434; In re Cuckfield Burial Board, 19 Beav. 153, and the cases cited in the note thereto; Re Bevan, 14 W. R. 147;) except where an act of parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, when the king is bound, though not particularly named. (Plowd. 136, 137; 11 Rep. 68 b; 5 Rep. 14; 7 Rep. 32. See Bac. Abr. Prerogative (E).) But where a statute is general, and its effect would be to deprive the king of any prerogative, right, title or interest, he is not bound unless specially named, (11 Rep. 68,) and was held not to be within the Statute of Limitations, (Br. St. Lim. 67,) nor the statute of 13 Edward 1, st. 1, c. 5, which makes plenarty for six 3 & 4 Will. 4, months a good plea in quare impedit. (11 Rep. 68; Plowd. 244.) As the king is not particularly named in this act, it is conceived that he is not included in the words "body politic;" and that the period of limitation as to rights of the crown is not altered by it. It was said by Lord Romilly that this statute does not affect suits by the Attorney-General to recover property belonging to the crown. (18 Beav. 246.) The king comes expressly within the provisions of the prescription act, 2 & 3 Will. 4, c. 71, (see ante, pp. 1, 6,) and the stat. 2 & 3 Will. 4, c. 100, for shortening the time required in claims of modus or discharge from tithes. c. 27, s. 1. By stat. 21 Jac. 1, c. 2, the king was disabled from claiming any manors, Statutes of Limilands or hereditaments, except liberties and franchises, under a title ac- tation as to rights crued sixty years before the then session of parliament, unless within that of crown to realty. time there had been a possession under such title; but this provision 21 Jac. 1, c. 2. becoming daily more ineffectual by lapse of time, a permanent limitation was introduced. (See Co. Litt. 119 a, n. (1); 3 Inst. 188.). And by statute 9 Geo. 3, c. 16, it is provided, that the king shall not sue, &c., any 9 Geo. 3, c. 16. persons, &c., for any lands, &c. (except liberties and franchises) on any title which has not first accrued within sixty years before the commencement of such suit, unless he has been answered the rents within that time, or they have been in charge, or stood insuper of record; and the subject shall quietly enjoy against the king, and all claiming under him, by patent, &c. This statute was extended to Ireland by 48 Geo. 3, c. 47, as to which see Tuthill v. Rogers, 6 Ir. Eq. R. 429; 1 J. & Lat. 36. Where it appeared in evidence that although the tithes in question had been constantly leased, neither the crown or its lessees had received any tithes, or compensation in lieu of them, since 1715, it was held, that the accounts of the auditors of the revenue, in which the tithes had been entered and returned nil from 1729 to the time of the institution of the suit, were sufficient proof that they had been "duly in charge," so as to protect the claim of the crown from the operation of the statute. But the court doubted whether the mere act of granting leases of the tithes, none having been received by the crown or its lessees since the year 1715, would have been sufficient to keep up the title of the crown, if the tithes had not been constantly kept in charge. (Att.-Gen. v. Lord Eardley, 8 Price, 73; S. C. Dan. 271; 3 E. & Y. 986. See 3 Inst. 189, as to the meaning of "being in charge.") The stat. 9 Geo. 3, c. 16, is amended by 24 & 25 Vict. c. 62; and by the 24 & 25 Vict. c. 62. 1st section of the latter act, the crown shall not hereafter sue any persons for real property (other than liberties or franchises) which such persons or their ancestors have held or taken the profits by the space of sixty years before the commencement of suit, by reason only that the same real property, or the rents thereof, have been in charge to the crown, or stood insuper upon record within the said space of sixty years. The crown shall not, for the purposes of the act 9 Geo. 3, c. 16, be deemed to have been answered the rents of real property which shall have been held, or of which the rents shall have been taken by any person by the space of sixty years before the commencement of any action, as mentioned in that act, by reason only of the same real property having been parcel of any manor of which the rents shall have been answered to the crown, or some other person under whom the crown claims or shall thereafter claim as aforesaid, or of any manor which shall have been duly in charge to the crown or stood insuper of record. (24 & 25 Vict. c. 62, s. 3.) Where an entire manor or other district has been in charge to the crown Adverse posseswithin sixty years, acts done in different parts of it by different persons, sion against the such as the erection and occupation of lime-kilns for burning limestone crown. found within the district, and of cottages for the purpose of such occupation and the sale of lime so produced, do not amount to such an adverse possession as to displace the title of the crown to the district, although they may have been continued for above sixty years. (Doe d. Will. 4 v. Roberts, 12 Mees. & W. 520.) The statute 9 Geo. 3, c. 16, does not give a title, it only takes away the right of suit of the crown, or those claiming from the crown, against such c. 27, s. 1. 3 & 4 Will. 4, as have held an adverse possession against it for sixty years. (11 East, 495.) Although it was held that possession of crown land, commencing at least fifty-five years ago, by encroachment on the crown in the time of the lessor of the plaintiff's father, maintained by the father till his death nineteen years before the action, and afterwards continued for two years by his widow, when the defendant obtained possession, would have been sufficient evidence for the jury to presume a grant from the crown to the lessor's father, if the crown had been capable of making such a grant, in order to support a demise in ejectment from the eldest son and heir of such first possessor, against the defendant, who had no apparent title, and whose possession was not defended by the crown, nor found to be by licence from it. (Goodtitle d. Parker v. Baldwin, 11 East, 488.) But the grant was not presumed in this case, because it would have been against the express provisions of an act of parliament. (Ib. 495.) 21 Jac. 1, c. 14. Practice in crown suits. Evidence in crown suits. Chose in action vested in the crown. By stat. 21 Jac. 1, c. 14, s. 1, it is enacted, "that wheresoever the king, his heirs or successors, and such from or under whom the king claimeth, and all others claiming under the same title under which the king claimeth, hath been or shall be out of possession by the space of twenty years, or hath not or shall not have taken the profits of any lands, tenements or hereditaments, within the space of twenty years before any information or intrusion brought or to be brought to recover the same: that in every such case the defendant or defendants may plead the general issue, if he or they so think fit, and shall not be pressed to plead specially; and that in such cases the defendant or defendants shall retain the possession he or they had at the time of such information exhibited, until the title be tried, found, or adjudged for the king." Although the king can never be put out of possession in point of law by the wrongful entry of a subject, yet there may be an adverse possession in fact against the crown. Therefore, after such an adverse possession by a subject for twenty years, the crown could only recover land by information of intrusion; consequently ejectment would not lie at the suit of the grantee of the crown, notwithstanding the rights of the crown are not barred by the statute of limitations. (Doe d. Watt v. Morris, 2 Scott, 276; 2 Bing. Ñ. R 189.) Rules have been made for assimilating the mode of procedure to that in ejectment and trespass on the common law side of the Court of Exchequer as nearly as may be, consistently with the rights and prerogatives of the crown, and the provisions of the stat. 21 Jac. 1, c. 14, the mode of procedure to remove persons intruding upon the Queen's possession of lands, shall be distinct from that to recover profits or damages for intrusion. (See Rules on Revenue side of the Court of Exchequer, made in pursuance of 22 & 23 Vict. c. 21, 22nd June, 1860, Nos. 21-38; 1 Chitty's Statutes, 1341; and also 28 & 29 Vict. c. 104, s. 31, et seq.) The title of the crown to lands, of which it has been out of possession for twenty years, may be tried in the information of intrusion itself, and need not be first found by inquest of office, the only effect of the statute 21 Jac. 1, c. 14, being to throw the onus of proving title in the first instance, in such a case, on the crown. (Att.-Gen. v. Parsons, 2 Mees. & W. 23.) As to inquests of office, see now 28 & 29 Vict. c. 104, s. 52. An ancient extent of crown lands, found in the office of Land Revenue Records, and purporting to have been made by the steward of the crown lands, is evidence of the title of the crown to lands therein mentioned, and stated to have been purchased by the crown of a subject. Documents deposited in the office of her Majesty's land revenue records and inrolments, pursuant to the stat. 2 Will. 4, c. 1, may be proved by examined copies, in a suit brought to establish the title of the crown, or its lessee, to lands to which such documents relate; and that, although the original purport to be the rental of a former grantee of the crown. Expired leases by the crown of lands or mines, tendered in evidence as acts of ownership by the crown, are so proveable by examined copies, although the originals may not have been inrolled within six months after their execution, pursuant to the statute 10 Geo. 4, c. 50, s. 63. (Doe d. Will. 4 v. Roberts, 13 Mees. & W. 520.) Although the statute of limitations does not bind the crown, yet where the claim of the crown is only a derivative right, it must stand in the same situation as its principal. Therefore, the statute of limitations may be But though the crown was not bound by the statute of limitations, yet a grant from it may be presumed from great length of possession, not because the court really thinks a grant has been made, because it is not probable a grant should have existed without its being upon record; but they presume the fact for the purpose and from a principle of quieting the possession. (Corporation of Hull v. Horner, Cowp. 102, 215.) Thus grants from the crown of markets and the like, after an uninterrupted enjoyment of twenty years, (11 East, 419,) have been presumed. So an enfranchisement of a copyhold may, upon sufficient evidence, be presumed against the crown. (Roe d. Johnson v. Ireland, 11 East, 280.) So where the title of a family to an advowson was evidenced by deeds and conveyances for a period of nearly 140 years, and there had been three presentations by them and none by the crown, it was held, that a grant from the crown might be presumed. (Gibson v. Clark, 1 Jac. & Walk. 159. See 3 T. R. 158.) King Charles 1, by letters patent, granted certain mills, &c., subject to a fee-farm rent, with a proviso, that if the mills should at any time thereafter be in decay, &c., his majesty and his successors should have a right of reentry. Subsequently, under the provisions of 22 Car. 2, c. 6, the fee-farm rent was sold. It did not appear that the right of re-entry had ever been specially granted or released. It was held that, having regard to the sale of the fee-farm rent, no right of re-entry capable of being enforced remained in the crown; and that such right did not pass to the purchaser of the rent. (Flower v. Hartopp, 12 L. J., N. S., Ch. 507; 7 Jur. 613.) In a case where Charles 1 had granted the soil between high and low water marks along the coast of the county of Southampton, but no possession had been taken of the spot in question under the grant until 1784, the crown having remained in possession for upwards of 150 years after the grant, this was held to create a presumption against it, and the parties not having been in possession more than nineteen or twenty years, no title was gained by adverse possession against the crown. (Parmeter and others v. Att.Gen., 1 Dow. 316.) An objection to a title that two fee-farm rents, created by letters patent by James 1, were not shown to have been extinguished, was overruled, it being proved that no claim had been made by the crown of the rent from the year 1706, and no proof of any previous claim. (Simpson v. Gutteridge, 1 Madd. 609.) Enjoyment of property for 110 years by a parish, although no conveyance appeared in evidence, was held to be conclusive proof of ownership against purchasers from the crown, relying upon a parliamentary survey and the court rolls of a manor, to show that the right to the property had formerly been in the crown. (Att.-Gen. v. Lord Hotham, 1 Turn. & Russ. 210.) But although grants on record have been presumed, there seems to be no instance of the presumption of an inrolment of a deed which was made essential by statute. (Doe v. Waterton, 3 B. & Ald. 149, 151; Wright v. Smythies, 10 East, 409.) It might be otherwise if some foundation were |