while entitled thereto, have been dispossessed or have discontinued the possession or receipt of it. But here there was a continued receipt of the whole of the rent from the owner of A. and his ancestors, and as there was a common liability to its payment attaching on B., all the payments made by the owner of A. were sufficient to prevent the bar of the statute from operating in favour of the owner of B. The statute never began to run. (Archbishop of Dublin v. Lord Trimleston, 12 Ir. Eq. Rep. 251; Sugd. on Real Prop. Stat. 153, 2nd ed.; conf. Woodcock v. Titterton, 12 W.R. 864.)

Advowsons.

Time of Limitation fixed.

30. After the said thirty-first day of December, one thousand eight hundred and thirty-three, no person shall bring any quare impedit or other action, or any suit to enforce a right to present to or bestow any church, vicarage or other ecclesiastical benefice, as the patron thereof, after the expiration of such period as hereinafter is mentioned; (that is to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the times of such incumbencies taken together shall amount to the full period of sixty years; and if the times of such incumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as, with the times of such incumbencies, will make up the full period of sixty years (x).

3 & 4 Will. 4,

c. 27, s. 29.

No advowson to within three incumbencies or sixty years.

be recovered but

(a) If a stranger present to a benefice, the recovery of that presentation Limitation of the depends on the statutes 13 Edw. 1, c. 5, s. 2, and 7 Anne, c. 18. "And the right to recover law stands upon this reasonable foundation-that if a stranger usurps my presentations.

presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church, and as a punishment for my own negligence; but that turn is the only one I shall lose thereby." (3 Steph. Com. 531.)

By stat. 1 Mary, sess. 4, c. 5, it was enacted, that the stat. 32 Hen. 8, c. 2, should not extend to a writ of right of advowson, quare impedit, assize of darrein presentment, nor jure patronatus, but the time of seisin to be alleged in such cases should be as it was at the common law before the making of the said statute, which was from the time of the commencement of the reign of Rich. 1. Before the statute of Mary, if the incumbent of an advowson had lived sixty years and died, and a stranger had presented, the patron could not maintain quare impedit or darrein presentment. (See Plowd. 371 b; Co. Litt. 115 a.)

The limitation of the right to recover advowsons laid down by 3 & 4 Will. 4, c. 27, s. 30, was in accordance with a suggestion of Blackstone. (3 Steph. Com. 565, where the old law is stated.) See Robinson v. Marquis of Bristol, 20 L. J., C. P. 208.

:-

Limitation of

right to recover

advowsons.

The limitations prescribed by 3 & 4 Will. 4, c. 27, were expressly Bishops' rights. 6 & 7 Vict. c. 54, applied to a bishop's rights by 6 & 7 Vict. c. 54, s. 3, which is as follows:8. 3. "And whereas doubts have been entertained whether the several periods by the said act (3 & 4 Will. 4, c. 27), limited for bringing any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice as the patron thereof, apply to the case of a bishop claiming to have right to collate to or bestow any ecclesiastical benefice in his diocese, and it is expedient that all such doubts should be removed; be it therefore enacted, that the several periods limited by the said act or by this act for bringing any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, shall apply to the case of any bishop claiming a right as

3 & 4 Will. 4, c. 27, s. 30.

patron to collate to or bestow any ecclesiastical benefice, and that such right shall be extinguished in the same manner and at the same periods as the right of any other patron to present to or bestow any ecclesiastical benefice : provided always, that nothing herein contained shall be deemed to affect the right of any bishop to collate to any ecclesiastical benefice by reason of lapse."

Incumbencies

after lapse to be reckoned within the period, but not incumbencies after promotions to bishoprics.

Lapse.

Prerogative pre

sentation.

Lapse.

31. Provided always, and be it further enacted, that when on the avoidance, after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presentation or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty, or the ordinary, by reason of a lapse, such last-mentioned clerk shall be deemed to have obtained possession adversely to the right of presentation or gift of such patron as aforesaid; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice, in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this act, be deemed a continuation of the incumbency of the clerk so made bishop (y).

(y) Presentation must be made by a common person within six calendar months after the death of the last incumbent, otherwise the right accrues to the ordinary, which is called a lapse. (3 Leon. 46; 2 Inst. 273; Wats. Cl. L. c. 12.) The six months commence from the time the patron has notice of the avoidance; (2 Burn, Eccl. Law, 327;) but if the clerk of a stranger be instituted and inducted, and the patron gives no disturbance within six months, he has no remedy for that turn, because induction is an act of which he is bound to take notice. (Ib. 329.) If the avoidance be by resignation or deprivation, the six months do not commence till notice of the avoidance given by the ordinary to the patron. (Com. Dig. Esglise, (H. 9).) But where the incumbent is himself patron, a sentence of deprivation is not necessary to render the first living void, the object of such a sentence being to give notice to the patron. (Apperley v. Bishop of Hereford, 3 Moore & Scott, 192; S. C., Bing. 681.) If the bishop should not present within six months after the lapse to him, then the right to present goes to the archbishop; (Com. Dig. Esglise, (H. 11);) and if neither the bishop nor archbishop present, then to the crown, which is not confined to any time. (Cro. Car. 335; Plowd. 498.) It is clear that, as against the bishop at least, the patron may at any time present, notwithstanding six months have elapsed, provided advantage has not been taken of the lapse. (3 Moore & Scott, 114.) So that if after a lapse and before the bishop or archbishop has collated his clerk, the patron presents one, the latter shall be instituted. (Hutt. 24; Hob. 152, 154; 2 Inst. 273.) So after a lapse to the king, if the patron's clerk be presented, instituted and inducted, and die incumbent, before the king has taken advantage of the lapse, his right is gone. (Owen, 2-5; Cro. Eliz. 44, 119; 7 Rep. 28.)

When an incumbent is made a bishop, the right of presentation to livings held by him vests for that turn in the king, and is called a prerogative presentation. This right of the crown was formerly doubted, (Wentworth v. Wright, Owen, 144,) but has since been fully established and acted on, but the right must be exercised in the lifetime of the person promoted, otherwise the turn of the crown is lost. (2 Bl. Rep. 770; Rex v. Bishop of London, 1 Show. 464; S. P., Show. P. C. 185; Com. Dig. Esglise, (H. 6); Archbishop of Armagh v. Att.-Gen., 2 Br. P. C. 514.) If after a grant of the next presentation to a living the incumbent be made a bishop, by which the living becomes vacant, and the king is entitled to present, the grantee may present on the next vacancy occasioned by the death

or resignation of the king's presentee. (Calland v. Troward, 2 H. Bl. 324; 8 Br. P. C. 71 ; 6 T. R. 439, 778.) The right of the crown to present to an English benefice, upon the appointment of the incumbent to a bishopric, is not barred by the crown having before such appointment granted the advowson to a subject. But no such right exists in the case of an appointment to the bishopric of Christ's Church, in New Zealand. (Reg. v. Eton College, 8 Ell. & Bl. 610.)

3 & 4 Will. 4,

c. 27, s. 31.

The right of presentation given to the universities by the statutes 3 Jac. 1, Universities. c. 5, ss. 18, 19, 20; 1 Will. & M. c. 26, s. 2, and 12 Anne, st. 2, c. 14, s. 1, arises only in the case of a sole patron, or all of several patrons professing the Roman Catholic religion. Where two are jointly seised of an advowson, the one being a Roman Catholic, the other a Protestant, the sole right is in the latter. (Edwards v. Bishop of Exeter, 7 Scott, 652; 5 Bing. N. S. 652; 3 Jur. 725. See Cottington v. Fletcher, 2 Atk. 155.) By statute 12 Anne, st. 2, c. 14, the presentation to any benefice by any Roman Catholic is void. And by stat. 11 Geo. 2, c. 17, s. 5, every grant made of any advowson or right of presentation, collation, nomination or donation, by any person professing the Catholic religion, or by any mortgagee or trustee of such person, is void, unless it be for valuable consideration to a Protestant purchaser. (See 9 & 10 Vict. c. 59.)

An advowson donatire being in the patron's disposal by his own deed of Advowson donadonation, without presentation, institution or induction, (Co. Litt. 344 a,) is tive. not subject to lapse, (1b.; Fairchild v. Gayre, Cro. Jac. 63; Britton v. Wade, Ib. 515,) unless such be the terms of the foundation, or unless the donative be augmented by Queen Anne's bounty, in which case it is subject to lapse, by statute 1 Geo. 1, st. 2, c. 10, ss. 6, 14, in case there be no nomination within six months. (See Mutter v. Chauvel, 1 Mer. 475.) As to proof of augmentation, see 11 East, 478. The ordinary may, by ecclesiastical censures, compel the patron of a donative to fill the church. (3 Salk. 140; Rex v. Bishop of Chester, 1 T. R. 396.)

By stat. 21 Hen. 8, c. 13, if a person having a benefice with cure of souls, Pluralities. of the yearly value of 81. or above, was instituted and inducted into any other benefice with cure of souls, the first benefice became void. (See, on the construction of this statute, Boteler v. Allington, 3 Atk. 453; Botham v. Gregg, 4 Moore & S. 230; Halton v. Cove, 1 B. & Ad. 530.) The stat. 1 & 2 Vict. c. 106, ss. 1-13, has repealed the stat. 21 Hen. 8, c. 13, and made new provisions as to pluralities, which provisions apply generally to all persons and benefices without distinction of value. By the 11th section of 1 & 2 Vict. c. 106, institution into a second benefice ipso facto avoids the first. (See Storie v. Bishop of Winchester, 9 C. B. 62; Ex parte Bartlett, 12 Q. B. 488, as to avoidance by non-residence under ss. 54, 58, of the same statute, when the clerk is in prison.) Further provisions are made relating to the holding benefices in plurality by statute 13 & 14 Vict. c. 98.

Estates subsequent to Estates Tail in Advowsons.

claiming an admainder, &c. after shall be barred.

vowson in re

an estate tail,

32. In the construction of this act every person claiming a when person right to present to or bestow any ecclesiastical benefice, as patron thereof, by virtue of any estate, interest or right which the owner of an estate tail in the advowson might have barred, shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action or suit, shall be limited accordingly.

Extreme Period of Limitation One Hundred Years. 33. Provided always, and be it further enacted, that after the No advowson to said thirty-first day of December, one thousand eight hundred

be recovered after 100 years.

c. 27, 8. 33.

3 & 4 Will. 4, and thirty-three, no person shall bring any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share or right held or derived under the same title (z).

At the end of the period of limitation the right of the party out of possession to be extinguished.

Effect of this section.

Nature of the interest of the person in possession.

(z) It will be observed that there is no saving of the rights of persons under disabilities. It will still be necessary to require abstracts of titles to advowsons to be carried back for a century at least. (1 Dart, V. & P. 272, 4th ed.) An abstract of title to an advowson should be accompanied with evidence that the presentations have from time to time been made by the persons appearing to be the owners of the advowson. Sir W. Blackstone observes, that instances are not wanting, wherein two successive incumbents have continued for upwards of 100 years and states as an instance, that two successive incumbents of the rectory of Chelsfield-cumFarnborough, in Kent, continued 101 years; of whom the former was admitted in 1650, the latter in 1700, and died in 1751. (3 Chit. Bl. Comm. 250; Co. Litt. 115 a.)

Final Extinction of Right.

34. At the determination of the period limited by this act to any person for making an entry or distress, or bringing any writ of quare impedit or other action or suit, the right and title of such person to the land, rent or advowson, for the recovery whereof such entry, distress, action or suit respectively might have been made or brought within such period, shall be extinguished (a).

(a) This section of the act is new in principle, as the former statutes of limitation were held not to bar the right but merely the remedy; but this bars the right as well as the remedy. (See 1 Wms. Saund. 283 a, n.; 2 B. & Ad. 413; 1 B. & Ald. 93; 1 Ld. Raym. 422.) The old Statute of Limitations was held to operate as an extinguishment of the remedy of the one and not as giving the estate to the other, where one heir in gavelkind had disseised the other, and been in the sole possession sixty-two years. (1 Bl. R. 678.) The old statutes only barred the remedy, but did not touch the right; possession at all times gave a certain right, but, under the new act, when the remedy is barred, the right and title of the real owner are extinguished, and are in effect transferred to the person whose possession is a bar. (Incorporated Society v. Richards, 1 Dru. & War. 289.) The effect of the act is to make a parliamentary conveyance of the land to the person in possession after the statutory period has elapsed. (Per Parke, B., Doe v. Sumner, 14 M. & W. 42.)

It has been suggested that the title gained by a wrongdoer who has been in possession, which may be limited by rights yet remaining unextinguished, is commensurate with the interest which the rightful owners have lost by the operation of the statute, and must therefore have the same legal character and be freehold, leasehold or copyhold accordingly. (Darb. & Bos. Stat. Lim. 390.) Mr. Hayes' view is as follows: "The wrongdoer must be considered

c. 27, s. 34.

according to the principle of the old law as claiming generally, and therefore 3 & 4 Will. 4, as claiming the absolute property (unless indeed he expressly qualify his claim), and the statute as merely diminishing from time to time the danger of eviction, till at length his originally precarious fee becomes, by the exclusion of every stronger claim, a firm inheritance." (1 Hayes, Conv. 270, 5th ed.) The latter view seems to be taken by Mr. Dart (Vend. & Purch. 370, 4th ed.) See further an article, 11 Jur., N. S. 151 (Part 2).

A person in possession of land without other title has, even before time has run in his favour under this statute, a devisable interest. (Asher v. Whitlock, L. R., 1 Q. B. 1; Keeffe v. Kirby, 6 Ir. C. L. R. 591; Clarke v. Clarke, I. R., 2 C. L. 395.)

Before this statute twenty years' possession gave a prima facie title against every one, and a complete title against a wrongdoer who could not show any right, even if such wrongdoer had been in possession many years, provided they were less than twenty. (Doe d. Harding v. Cooke, 7 Bing. 346; see ante, p. 152.) And the effect of this section would probably be to give the right to the possessor for twenty years even against the party in whom the legal estate formerly was, and, but for the act would still be, where he had not obtained the possession till after the twenty years, but then it is apprehended that such twenty years' possession must be either by the same person or by several persons claiming one from the other by descent, will or conveyance. (Doc d. Carter v. Barnard, 13 Q. B. 945, 952.)

In ejectment the lessor of the plaintiff relied on her own possession for thirteen years, and her husband's before her for eighteen years, but in so doing showed that her husband died leaving children. The defendant, in whom the legal estate was before the twenty years, had turned the lessor of the plaintiff out of possession. It was held, first, that the possession of the lessor of the plaintiff, not being connected by right with that of her husband, sect. 34 of stat. 3 & 4 Will. 4, c. 27, did not give her the right of possession against the defendant. (Doe d. Carter v. Barnard, 13 Q. B. 945; 18 L. J., Q. B. 306. See Doe d. Humphrey v. Martin, 1 Car. & M. 32; Doe d. Hughes v. Dyball, 3 Car. & P. 610.) Possession is primâ facie evidence of title, and, no other interest appearing in proof, evidence of a seisin in fee. But in this case the lessor of the plaintiff not only proved her own possession, but that of her husband before her, for eighteen years, which was primâ facie evidence of his seisin in fee; and as he died in possession, and left children, it was prima facie evidence of the title of the heir, against which the possession of the lessor of the plaintiff for thirteen years could not prevail; and therefore she had proved the title to be in another, of which the defendant was entitled to take advantage.

Person in posses

sion has a devis

able interest.

passers.

Though by this section the right is extinguished at the end of twenty Possession by years, still adverse possession by a succession of independent trespassers succession of infor a period exceeding twenty years confers no right on any one of them dependent treswho has not himself had twenty years' uninterrupted possession, except as furnishing a defence to a trespasser in possession against an action by the rightful owner. (Dixon v. Gayfere, 17 Beav. 421; 23 L. J., Chan, 60.) After both the trustees and cestui que trust had been out of possession more than twenty years, an ejectment was brought by A. B., the heir of the trespasser, in the name of the trustee, and he obtained judgment. The trustee, who disclaimed all personal interest, then instituted a suit secking to have the rights declared as between the rightful owner and the heir of the trespasser, and the court by its receiver took possession. A. B. afterwards instituted a suit against the trustee and the rightful owner to recover the property. It was held that, the court being in possession, this statute had conferred no right and did not apply, and that the court was bound to ascertain and declare the rights of the parties as if the statute did not exist. (b.) The Master of the Rolls put the case of a series of trespassers, each adverse to one another and to the rightful owner, taking and keeping possession of an estate in succession for various periods, each less than twenty years, but exceeding in the whole twenty years: and he said "At law, no doubt, the person possessed of the legal estate would obtain possession, or if the legal estate could not be shown to be in anyone, the last possessor, that is,