3 & 4 Will. 4, c. 27, s. 1. Port duties. Presumption of an act of parliament. No land or rent to be recovered years after the right of action accrued to the person whose estate he claims. laid for raising a presumption by showing that there was a chasm in the records corresponding with the date of the supposed conveyance. (Allen v. Walker, 1 Jac. & Walk. 619.) The registry of a deed of lands in a register county will not be presumed. (Doed. Beauland v. Hirst, 11 Price, 475.) An inrolment of a tithe award was presumed where the usage of paying tithe was shown. (Macdougall v. Purrier, 2 Dow & Cl. 135, cited 8 Q. B. 580.) It seems that where port duties are claimed under a grant from the crown, which appears from the evidence to be inrolled, but which is not produced by the plaintiff, the jury ought not to be directed to presume such grant upon mere evidence of usage. (Brune v. Thompson, 4 Q. B. 543.) As to the presumption that a claim for port duties had a legal origin, see Foreman v. The Free Fishers of Whitstable (L. R., 4 H. L. 266), and cases there cited. After a long possession the court will, in some cases, even presume an act of parliament in order to protect a right. (Att.-Gen. v. Ewelme Hospital, 17 Beav. 366.) Upon the dicta of certain judges, that even an act of parliament might be presumed, if necessary, in support of an ancient usage, it was observed by Lord Denman, C. J., that even such a strong presumption might not be unreasonable, where the usage has been such as nothing but an act of parliament could legalize, and has prevailed in those obscure ages, in which not only the records of parliament may have been negligently kept, but even the form of parliament itself is scarcely to be discerned. But no judge would venture to direct a jury that they could affirm the passing of an act of parliament within the last 250 years, on an important subject of the most general interest, of which no vestige can be found on the parliament roll, in the journals of either house of parliament, in any records of the courts of law, in the numerous treatises of enlightened authors, devoting unwearied industry and the greatest accuracy on similar inquiries, or in the history of the country. (Reg. v. Chapter of Exeter, 12 Ad. & E. 532, 533. See further, 1 Taylor, Ev. 144, 5th ed.) By stat. 3 & 4 Will. 4, c. 99, ss. 12, 13, quit rents and other rents payable to the crown in respect of any honors, manors, lands, and hereditaments in England or Wales, are placed under the management of the Commissioners of Woods and Forests and Land Revenues; and the Lord High Treasurer, or the Commissioners of the Treasury, are empowered, by warrant under his or their hands, to remit, release or discharge all or any of the same rents, and the arrears thereof. (See 10 Geo. 4, c. 50; 2 Will. 4, c. 1.) 2. Period of Limitation fixed, and when Right first accrues.— Twenty Years. 2. After the thirty-first day of December, one thousand eight but within twenty hundred and thirty-three, no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the time at which the right to claimant, or some make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same (k). This section included among (k) This section governs cases which fall within its general words, even governs cases not though not included among the instances given in sect. 3. A testator charged an annuity on land, payable quarterly, with a power of distress if the annuity should be in arrear for twenty days next after any quarterly day of payment. The testator died in 1804, and on the 17th March, 1835, instances in sect. 3. James v. Salter. the defendants distrained for 8701. for twenty-nine years' arrears of the annuity, ending at Christmas, 1834. It appeared that the right to make a distress for the annuity first accrued to the annuitant, on the expiration of the twenty days next after the first quarterly payment subsequent to the testator's death, that is, at the very latest, some time in April, 1805. It also appeared that there was no payment or receipt of the annuity by the annuitant before the distress was put in in March, 1835, for it was for the whole of the arrears since the testator's death. The second issue on the case arose upon a plea in bar, framed upon the second section of stat. 3 & 4 Will. 4, c. 27. The facts brought the case within the second section, unless the third section did in terms exclude from the operation of the second the claim of any person whose right to a rent is derived under a will, by reason of the words "other than a will" in the third section (post). The court, in the first instance, expressed an opinion that the case was excluded from the operation of the second section, by reason of its not being comprehended within the third, which third section was thought to contain an enumeration of the instances to which only the second section could be held to be applicable; and the court held that the annuitant was not barred by the lapse of twenty years, and the non-payment of the annuity. (James v. Salter, 2 Bing. N. C. 505.) Upon further consideration, the court changed their former opinion. Tindal, C. J., in giving judgment, said "that the case must have been governed by the second section, if that section had stood alone, cannot be doubted; and upon a more close examination of the third section, the object and intent of it seems to us to be no more than this: to explain and give a construction to the enactment contained in the second clause, as to the time at which the right to make a distress for any rent shall be deemed to have first accrued,' in those cases only in which doubt or difficulty might occur; leaving every case which plainly falls within the general words of the second section, but is not included amongst the instances given by the third, to be governed by the operation of the second." And it was accordingly held that the claim to the annuity was barred by the lapse of twenty years since the right to distrain first accrued. (James v. Salter, 3 Bing. N. C. 544. See pp. 553-555; 4 Scott, 168; 5 Dowl. P. C. 496.) By this section the right of entry is taken away, unless an entry be made within twenty years of the right first accruing, where the party is not entitled to the benefit of the 15th section, which has now generally ceased to operate. (Holmes v. Newlands, 11 Ad. & El. 44; 3 P. & D. 128; Newlands v. Holmes, 8 Q. B. 679.) Where a lord had seized copyholds quousque, and had held them for nearly forty years, and the heir of the former tenant filed a bill to compel admittance by the lord, it was held that this was a suit to recover land within this section, and that the right of the heir was barred, (Walters v. Webb, L. R., 5 Ch. 531.) An action at law for an assignment of dower is barred in twenty years by this section, and a suit in equity for the same purpose is barred in the same time. (Marshall v. Smith, 5 Giff. 37.) A plaintiff admitted to be in possession and seeking to displace the title under which the defendants claim, on the ground that it is barred by the 3 & 4 Will. 4, c. 27, s. 2, need not show what that title was and how it was barred; but a general allegation, so as to bring the case within that section, is sufficient. (Jones v. Jones, 16 M. & W. 699.) Where a lessor permits his lessee, during the continuance of the leases, to pay no rent for twenty years, the lessor is not therefore barred by the stat. 3 & 4 Will. 4, c. 27, s. 2, from recovering the premises in ejectment, but the case comes within the latter branch of the third section. (Doe d. Darey v. Oxenham, 7 Mees. & W. 131. See post.) 3 & 4 Will. 4, c. 27, s. 2. Actions and suits to recover land within this section. In Paget v. Foley (2 Bing. N. R. 679; 3 Scott, 135), Tindal, C. J., said, Rent within this "This statute was proposed to include other rents of the same nature as section. those to which the act, according to its title and preamble, was intended to apply, rather than conventional rents reserved on a lease." It was not necessary, however, to decide the point in that case, for the reason which will hereafter appear. (See post.) The Real Property Commissioners seem also to have contemplated an assimilation of limitation for land and S. L 3 & 4 Will. 4, c. 27, s. 2. Grant v Ellis. Issue in tall barred by this section. Limitation of real 32 Hen. 8, c. 2. all rents, other than conventionary rents between landlord and tenant. (See 1 Real Prop. Rep. p. 50.) The word "rent" in the second section of the act does not include rents reserved on leases for years, but is confined to rents existing as an inheritance distinct from the land, and for which before the statute the party entitled might have had an assize, such as ancient rents service, fee-farm rents, or the like. (Grant v. Ellis, 9 M. & W. 113.) Mere non-receipt therefore of rent under a lease, for more than twenty years, does not deprive the lessor of his right to rent under the lease. (lb.) A lessee of premises for one hundred and twenty-five years from the 25th of March, 1782, by a lease dated the 21st of July, 1787, and which contained clauses of distress and re-entry, demised the same to a lessee for one hundred and twenty years from the 25th of March last past. Twenty-two years' arrears of rent accrued due to the representatives of the lessor in the last-mentioned lease: it was held, that although the original lessee had no reversion expectant on the determination of the lease of the 21st of July, 1787, yet that the rent reserved by the lease was a conventional equivalent for the right of occupation, and that therefore the right of the representatives of the original lessee to the rent during the residue of the term was not barred by this section. (Re Turner, 11 Ir. Ch. Rep., N. S. 304.) It is now clearly established that so long as the relation of landlord and tenant under a lease in writing subsists as a legal relation, the landlord's right to rent is not barred by nonpayment, for however long a time. (Per Lord Cranworth, Archbold v. Scully, 9 H. L. Ca. 360.) An additional rent in the nature of a penal rent reserved by indenture of demise between landlord and tenant was held not to be within the second section of 3 & 4 Will. 4, c. 27. (Daly v. Lord Bloomfield, 5 Ir. L. R. 65.) As to the use of the word "rent" in the statute, see further, Doe v. Angell (9 Q. B. 328, quoted under sect. 9, post.) An ordinary tenant in tail would, by virtue of the first and second sections, lose his right after twenty years' want of possession in the time of his ancestor. (Earl of Abergavenny v. Brace, L. R., 7 Ex. 172.) But where by a private act of 2 & 3 Ph. & M. certain lands were limited to E. N. and others successively in tail male, with limitations over, and an ultimate limitation to the crown; and it was provided that "no feoffment, discontinuance, fine or recovery, with voucher or otherwise, or any other act or acts thereafter to be made, done, suffered or acknowledged of the premises or any part or parcel thereof," by E. N. or the other persons named, "or by any of them, or by any of their heirs male of their several bodies, should bind or conclude or put from entry" the crown "or any of the heirs in tail;" a lease for three lives was made in 1781 by the heir in tail male of E. N., then in possession, of part of the lands so settled: the lease expired in 1832, and since that time the land had been held by the defendant, and those through whom he claimed, without payment of rent or acknowledgment of the title of the tenants in tail for the time being. In 1868 the plaintiff became entitled to the entailed lands as heir in tail male of E. N. : it was held that he was not barred by this statute from recovering the lands comprised in the lease. (Earl of Abergavenny v. Brace, L. R., 7 Ex. 145.) By the common law there was no stated or fixed period within which it was necessary to commence actions, but afterwards certain remarkable events were from time to time selected for that purpose as the return of King John from Ireland, and the coronation of Henry the Third. A certain period was limited by stat. 32 Hen. 8, c. 2, which enacted that no person should maintain any writ of right, or make any prescription, title or claim of, to or for any manors, lands, tenements, rents, annuities, commons, pensions, portions, corodies, or other hereditaments of the possession of his or their ancestor or predecessor, and declare and allege any further seisin or possession of his or their ancestor or predecessor, but within sixty years next before the teste of the said writ, or next before the said prescription, title or claim so made. Actions upon the possession of the ancestor of the party claiming were limited to fifty years; and those upon the seisin or possession of the party himself to thirty years; and formedons in remainder or reverter were required to be sued within fifty years. The writ of intrusion came within the stat. 32 Hen. 8, c. 2, and not within the stat. 21 Jac. 1, c. 16, and the limitation of time for suing out such writ was fifty years. This writ was maintainable by one in remainder for an intrusion made after the determination of an estate pur auter vie ; and a demandant who claimed under a devise might maintain the writ. (Peircey, dem., Gardner, ten., 3 Bing. N. C. 748.) Dignities were held not to be within the Statute of Limitations, and even an adverse possession and exercise of a dignity by persons not entitled to it, for a period of eighty-five years, was resolved by the House of Lords not to bar the real claimant. (In the barony of Willoughby of Paiham, Lords' Journ. vol. 31, p. 350; see 3 Cru. Dig. 202.) But offices with fees and profits are within them. (Lords' Journ. vol. 36, p. 295.) An annuity was not within the stat. 32 Hen. 8, c. 2, for the plaintiff did not declare upon a seisin but upon his grant. (Bro. St. Lim. 26; see ante, p. 139.) So that statute did not extend to a corporation aggregate, as mayor and commonalty, nor to a dean and chapter, as they did not count upon a seisin of any ancestor or predecessor, but upon their own possession. But it was otherwise as to a corporation sole; for if a bishop or other sole corporation sued upon a seisin of his predecessor, he was barred if the seisin was not within sixty years. (Bro. St. Lim. 33; Bac. Abr. Limitation of Actions, (B).) 3 & 4 Will. 4, c. 27, s. 2. The stat. 21 Jac. 1, c. 16, sects. 1 and 2 (repealed by 26 & 27 Vict. Limitation of c. 125), limited the period for all writs of formedon to twenty years, and right of entry. enacted that no persons should at any time thereafter make any entry into 21 Jac. 1, c. 16. any lands, tenements or hereditaments, but within twenty years next after his title should first descend or accrue to the same, and, in default thereof, such persons so not entering, and their heirs, should be disabled from such entry after to be made. The provisions of the statutes 32 Hen. 8, c. 2, and the 21 Jac. 1, c. 16, were extended to Ireland by the Irish stat. 10 Car. 1, sess. 2, c. 6, by making the limitation in a writ of right on the seisin of the party's ancestors sixty years, and in a possessory action upon possession of ancestors fifty years, and in an action upon the party's own seisin or possession twenty years, and in an avowry or cognizance for rent, suit or service, forty years. Actions of formedon and scire facias on fines and recoveries were limited to twenty years after the title or cause of action accrued, and an entry upon lands must be made within twenty years after the title accrued, with an exception in favour of persons being infants, feme coverts, non compos mentis, imprisoned, or beyond seas, who should sue within ten years after the removal of the disability. By the stat. 21 Jac. 1, c. 16, s. 1, no entry could be made, and therefore no ejectment maintained, but within twenty years after the title of entry first accrued, with the exception of persons under disabilities. There were two periods from which the term of twenty years limited by that statute was to be computed, one with respect to the rights of persons entitled in possession, and the other with respect to the rights of persons entitled to future interests. Less difficulty arose with respect to the latter, because it can easily be proved when such rights would have come into possession by the determination of the preceding estates; but the former period was to be computed from the time when the wrongdoer acquired the possession of the freehold adversely to the title of the owner, whose estate thereby became a mere right; and in many cases it was very difficult to ascertain what would constitute such possession. By stat. 4 Hen. 7, c. 24, a fine with proclamations was made a bar to all Non-claim on persons having present rights of entry, and not being under any disabilities, fines. : if they did not claim within five years after the proclamations made; to 4 Hen. 7, c. 24. 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. By the abolition of fines, the practice of gaining a title by a fine, and non-claim will be prevented in future. (See 3 & 4 Will. 4, c. 74, s. 2, post.) In order that a fine should operate as a 3 & 4 Will. 4, c. 27, s. 2. Adverse possession necessary under above statutes. Disseisin. Question of adverse possession 4, c. 27. bar by non-claim, it was necessary that the person who levied it should have had a freehold, either by right or by wrong. If he turned out a lawful possessor of it, if he had committed a disseisin, he had what was called a wrongful freehold, and if the party entitled had not claimed within five years after the fine had been levied, that would be a bar to him. Or if a person had been in by right adversely to the rest of the world, and asserting the dominion to be his own, and levied a fine after the proclamations had been made and five years had expired, any demand or latent claim would be equally barred. (Davies v. Lowndes, 5 Bing. N. C. 177, 178; Runcorn v. Doe d. Cooper, 5 B. & C. 701. See Doe d. Burrell v. Perkins, 3 Maule & S. 271; Doe d. Parker v. Gregory, 2 Ad. & Ell. 14 ) For the case of married women, see Doe d. Bright v. Pett, 11 Ad. & El. 853; 4 P. & D. 278; Doe d. Wright v. Plumtre, 3 B. & Ald. 474. It seems that the adverse possession necessary to make a fine with proclamations operate by way of bar, was the same as the adverse possession necessary for the purpose of barring a right of entry. (Note to Nepean v. Doe, 2 Smith's L. C. 615, 6th ed.) To constitute such adverse possession, it was formerly considered necessary that there should be an ouster of the seisin in one of five modes, called disseisin, abatement, intrusion, discontinuance, and deforcement. Disseisin is where the person in possession of the freehold is evicted. Abatement is where a wrong-doer enters on the vacant possession, after the death of the owner, instead of the heir or devisee. Intrusion is where a wrong-doer enters on the vacant possession, after the death of the tenant for life, instead of the remainderman or reversioner. Discontinuance was where a tenant in tail in possession aliened by a tortious conveyance, as feoffment or fine, which did not bar the entail. Deforcement was considered to include the other four terms, and any holding over after the determination of an estate, or other wrongful withholding of the freehold from the right owner. (See 1 Real Prop. Rep. 494; 3 Bl. Comm. 167-173.) When a party enters by colour of a void grant, he is a disseisor. (Buckler's case, 2 Rep. 55b; Cro. Eliz. 451; Cro. Car. 306, 388; Litt. Rep. 298, 373; Cro. Jac. 660; 1 Jones, 316.) But where a grant is according to the rules of law, but requires to be perfected by a subsequent ceremony, as if a feoffee enters before livery of seisin, he is not a disseisor. (2 Rep. 55.) Wherever there is a disseisin, the possession of the disseisor will be considered adverse, and the party must pursue his remedy within twenty years from the act constituting the disseisin. (Butl. Co. Litt. 330 b, n.) There may be an unlawful possession which does not amount to a disseisin. (Doe v. Gregory, 2 Ad. & Ell. 14; 4 Nev. & M. 308. See 2 Mees. & W. 904. As to disseisin, see Taylor v. Horde, 1 Burr. 108; Doe v. Lynes, 3 B. & C. 388; Williams d. Hughes v. Thomas, 12 East, 141; Roscoe on Real Actions, 61-63; 2 Prest. on Abst. 284, et seq.) Great practical difficulty had arisen under the former statutes in determining what is adverse possession, and when it shall be considered to have before 3 & 4 Will. begun. This must generally be left as a question of fact for the jury; but there are some rules of law (præsumptiones juris et de jure) which absolutely prevented the possession from being considered adverse, and the expediency of which was very questionable, as they did not seem necessary for preserving rightful claims, and they greatly impaired the healing tendency of the statutes of limitations. (See 1 Real Prop. Rep. 47.) At the time of the enactment of 3 & 4 Will. 4, c. 27, it seems that the question whether possession was or was not adverse, was to be decided by inquiry whether the circumstances of that possession were sufficient to evince its incompatibility with a freehold in the claimant. (Note to Nepean v. Doe, 2 Smith's L. C. 614, 6th ed.) Cases as to adverse possession 4, c. 27. Where one person held an estate on the joint account of himself and another, or by the permission of the real owner, and without claiming any before 3 & 4 Will. inconsistent right, the possession is not adverse, and the original title is not affected. Thus, where one holds lands as lessee, his possession is in contemplation of law that of the lessor. (1 Wils. 176; 3 Wils. 521.) For length of possession during a particular estate, as under a lease for lives, as long as the lives are in being, gives no title; but if the tenant hold over for twenty years after the death of cestui que vie, such holding over will in |