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 commission 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. Corporation 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. Corporation 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 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. Leaver, L. R., 9 Eq. 22.

,, 202, note (s).—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.

225, note (b).—An action of debt now lies for the recovery of a rentcharge in fee. Thomas v. Sylvester, L. R., 8 Q. B.

Page 257, line 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 (ƒ).—The office of protector survives. Bell v. 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 duplicate 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 (h).—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 (g).-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 (ƒ).—For form of order, see Howson v. Trant, 21 W. R.

781.

693, note (s).—Add a reference to Re Strutt, 21 W. R. 880.

696, note (c).-See Re Taddy, 21 W. R. 863.

16 Eq. 103.

705, note (b).—A discrepancy was disregarded in Re Hemsley, L. R.,

719, line 58.-As to Bunting v. Marriott, see Sowdon v. Marriott, 21 W. R. 808.

746, note (c).—After "Higgs v. Dorkis," add a reference to Leigh v. Edwards, 21 W. R. 835.

STATUTES

RELATING TO

REAL PROPERTY,

PASSED IN THE REIGNS OF

KING WILLIAM IV. AND QUEEN VICTORIA.

PRESCRIPTION.

2 & 3 WILLIAM IV. CAP. 71.

An Act for shortening the Time of Prescription in certain
Cases (a).

[1st August, 1832.]

I. Time limited for establishing rights of common and other profits à prendre.

II. Ways, easements and watercourses.

III. Light.

IV. How periods of limitation are to be computed.

V. Pleadings.

VI. Period less than that provided by statute not to be allowed.

VII. Saving in favour of persons under disabilities.

VIII. Time excluded in computation of period of forty years.

I. TIME LIMITED FOR ESTABLISHING RIGHTS OF COMMON AND

OTHER PROFITS À PREndre.

c. 71, s. 1.

WHEREAS the expression "Time Immemorial, or Time whereof 2 & 3 Will. 4, the Memory of Man runneth not to the contrary," is now by 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 law, by custom, prescription (b), or grant, to any right of common (c) or other profit or benefit, to be taken and enjoyed from or upon any land of our sovereign lord the King, his heirs or successors, or any land being parcel of the Duchy of Lancaster or of the Duchy of Cornwall (d), or of any ecclesiastical or lay

S.

B

Claim to right of

common and other profits à prendre

not to be defeated enjoyment by showing the com

after thirty years'

mencement.

c. 71, s. 1.

2&3 Will. 4, person, or body corporate, except such matters and things as 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 been so taken and enjoyed as aforesaid, for the full period of right to be absolute, unless had sixty years, the right thereto shall be deemed absolute and indeby consent or agreement. 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. 167; Lawson v. Langley, 4 Ad. & Ell. 890; Jones v. 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. Wasdale, 5 Ad. & Ell. 764; 1 Nev. & P. 172; Blewitt v. 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.)

The liberty of fowling has been decided to be a profit à prendre. (Davies' case, 3 Mod. 246.) The liberty to hunt is one species of aucupium, and the taking of birds by hawks seems to follow the same rule. The liberty of fishing appears to be of the same nature; it implies that the person who takes the fish, takes for his own benefit; it is common of fishing. (Anon., Hardr. 407.) The liberty of hunting is open to more question, as it does not of itself import the right to the animal when taken; and if it were a licence given to one individual, either on one occasion or for a time, or for his life, it would amount only to a mere personal licence of pleasure, to be exercised by the individual licensee. But in the case of a grant by deed-" of free liberty with servants or otherwise to enter lands and there to hunt, hawk, fish and fowl"-to persons, "their heirs and assigns," where it is apparent that not merely the particular individual named, but any to whom they or their heirs choose to assign it should exercise the right, it has been considered that an interest, or profit à prendre, was intended to be granted. (Per Parke, B., Wickham v. Hawker, 7 Mees. & W. 78, 79.) The property in animals feræ naturæ, while they are on the soil, belongs to the owner of the soil, and he may grant a right to others to come and take them by a grant of hunting, shooting, fowling, and so forth, and such a grant is a licence of a profit à prendre. Substantially it may be reserved by the owner of the fee simple when he alienates, although it is considered that, technically speaking, in such a case it is a regrant of the right by the alienee of the fee simple to the alienor. (Ewart v. Graham, 7 H. L. 344, 345, per Lord Campbell.) A right to cut down and carry away trees growing in a close (Bailey v. Stevens, 12 C. B., N. S. 91) and a right to take stones and sand from the seashore (Constable v. Nicholson, 14 C. B., N. S. 230) have been held to be profits à prendre.

It is an elementary rule of law that a profit à prendre in another's soil cannot be claimed by custom, for this among other reasons that a man's soil might thus be subject to the most grievous burdens in favour of successive multitudes of persons like the inhabitants of a parish or other district who could not release the right. The claim of free miners to subvert the soil and carry away the substratum of stone without stint or limit of any kind cannot be supported either on the ground of custom, prescription or lost grant. A claim which is vicious and bad in itself cannot be substantiated by an user however long. (Per Byles, J., Att.-Gen. v. Matthias, 4 Kay & J. 591; Constable v. Nicholson, 14 C. B., N. S. 230; Johnson v. Barnes, 27 L. T., N. S. 152.) To a declaration for breaking and entering the plaintiff's close and taking his fish, a custom pleaded for all the inhabitants of a parish to angle and catch fish in the locus in quo was held to be bad, as this was a profit à prendre, and might lead to the destruction of the subject-matter to which the alleged custom applied. (Bland v. Lipscombe, 4 Ell. & Bl. 713, n. (c).) A right, claimed by the inhabitants of a township, to enter upon the land of a private person and take water from a well therein for domestic purposes, is an easement and not a profit à prendre, and may therefore properly be claimed by custom. (Race v. Ward, 4 Ell. & Bl. 702; 24 Law J., Q. B. 153; 1 Jur., N. S. 704.) The court held an alleged custom to be bad for all the inhabitants occupying lands in a district to enter a close and take therefrom reasonable quantities of sand, which had drifted thereupon, for the purpose of manuring their lands. The reason was, that the drifted sand had become part of the soil, so that the claim was to take a profit in alieno solo. (Blewitt v. Tregonning, 3 Ad. & Ell. 554, cited in Race v. Ward, 4 Ell. & Bl. 712.)

Before the passing of this act, a prescriptive claim was a claim of immemorial right; the evidence in support of it was such as a party might be able to give in such a case; and the jury were to draw their inference from such proof as could be produced. Now the burden of establishing an immemorial right is withdrawn, and the proof is limited to thirty years. But the party prescribing must prove his right for that whole period, and no presumption will be drawn from evidence as to part of that period. (See 8 Ad. & Ell. 167.) The plaintiff prescribed under this statute, first, for a right of pasture