ber, 1833, 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
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."
The 3rd section enacts, "that, in the construction of
this act, the right to make an entry or distress, or
bring an action to recover any land or rent, shall be
deemed to have first accrued at such time as hereinafter
is mentioned, that is to say, when the person claiming
such land or rent, or some person through whom he
claims, shall, in respect of the estate or interest claimed,
have been in possession or in receipt of the profits of such
land, or in receipt of such rent, and shall, whilst entitled
thereto, have been dispossessed, or have discontinued
such possession or receipt, then such right shall be
deemed to have first accrued at the time of such dispos-
session or discontinuance of possession, or at the last
time at which any such profits or rent were or was so
received," &c. The 21st section enacts, "that, when
the right of a tenant-in-tail of any land or rent to make
an entry or distress, or to bring an action to recover the
same, shall have been barred by reason of the same not
having been made or brought within the period herein-
before limited, which shall be applicable in such case, no
such entry, distress, or action shall be made or brought
by any person claiming any estate, interest, or right,
which such tenant-in-tail might lawfully have barred."
The 22nd section enacts, "that, when a tenant-in-tail of
any
or rent, entitled to recover the same, shall have
died before the expiration of the period hereinbefore

land

1852.

CANNON, Dem., RIMINGTON,

Ten.

s. 3.

s. 21.

s. 22.

1852.

CANNON, Dem., RIMINGTON, Ten.

8. 37.

8. 38.

limited, which shall be applicable in such case, for making an entry or distress, or bringing an action to recover such land or rent, no person claiming any estate, interest, or right, which such tenant-in-tail might lawfully have barred, shall make an entry or distress, or bring an action to recover such land or rent, but within the period during which, if such tenant-in-tail had so long continued to live, he might have made such entry or distress, or brought such action." The 37th section enacts, "that when, on the said 31st of December, 1834, any person who shall not have a right of entry to any land, shall be entitled to maintain any such writ or action as aforesaid, in respect of such land, such writ or action may be brought at any time before the 1st of June, 1835, in case the same might have been brought if this act had not been made, notwithstanding the period of twenty years hereinbefore limited shall have expired.” And the 38th section enacts, "that, when, on the said 1st of June, 1835, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st of June, 1835, but only within the period during which by virtue of the provisions of this act an entry might have been made upon the same land by the person bringing such writ or action, if his right of entry had not been so taken away."

The facts disclosed upon this record, are,-that, after the first tenant-in-tail became seised in tail, and more than twenty years ago, he made a feoffment, and so discontinued the fact of the possession, and the feoffee has ever since been in possession of the land, and in receipt of the rents and profits. The question is, whether, upon that state of facts, the issue in tail is barred of his writ of formedon. It is submitted that he is. Before the

passing of the act, the tenant-in-tail might have barred.
the issue in tail by a fine, with proclamations, under the
32 H. 8, c. 36, s. 1. If there had been no feoffment in
this case, but only a simple discontinuance in fact of the
possession and receipt of the rents and profits, the issue
in tail would have been barred, under section 21, if the
whole twenty years had run out in the life-time of the
tenant-in-tail, or, under section 22, he would have had
only so much of the twenty years as remained unex-
pired at the death of the tenant-in-tail. If that be so,
how is the issue in tail in a better position because the
tenant-in-tail has executed a feoffment?
In Tolson,

dem., Kaye, ten., 3 B. & B. 217, 6 J. B. Moore, 542,
it having been urged in argument that the old statute
of limitations, 21 Jac. 1, c. 16, s. 1, ought to be con-
strued strictly,-Dallas, C. J., said: "I cannot agree in
the position that statutes of this description ought to
receive a strict construction: on the contrary, I think
they ought to receive a beneficial construction with
a view to the mischief intended to be remedied; and
this is pointed out by the very first words of the statute,
which are, 'for quieting of men's estates, and avoiding
of suits.' It is therefore that this statute and all others
of this description, are termed by Lord Kenyon statutes
of repose; and long before and since the passing of this
statute that has been the principle which has guided the
courts in the construction of them." The 3 & 4 W. 4,
c. 27, carries that intention further than the former
statutes: by those, the remedy only was barred; but,
under this statute, the title is absolutely extinguished,-
s. 34.

Willes (with whom was Spinks), contrà. The demandant claims as the issue in tail, whose right of action has not been barred by any conveyance his ancestor has made. But for the statute De Donis, 13 Edw. 1, c. 1,

1852.

CANNON, Dem., RIMINGTON,

Ten.

1852.

CANNON, Dem., RIMINGTON.

Ten.

the feoffment would have been a good conveyance: but, by that statute, there being issue in tail, its only effect was, to turn their right of entry into a right of action. The real question is, whether the statute 3 & 4 W. 4, c. 27, has taken away the right of the issue in tail to bring his action, under the circumstances disclosed upon this record. It is clear that the issue in tail was not barred under the 21 Jac. 1, c. 16: it is so laid down in Watkins on Conveyancing, 9th edit. p. 401, n. How is it under this statute? By the 36th section, real and mixed actions (with certain exceptions), and, amongst the rest, writs of formedon, are abolished from the 31st of December, 1834; provided (s. 37) "that, when, on the 31st of December, 1834, any person who shall not have a right of entry to any land, shall be entitled to maintain any such writ or action as aforesaid, in respect of such land, such writ or action may be brought at any time before the 1st of June, 1835, in case the same might have been brought if this act had not been made, notwithstanding the period of twenty years herein before limited shall have expired." Then comes the 38th section, which provides, "that, when, on the said 1st of June, 1835, any person whose right of entry to any land shall have been taken away by any descent cast, discontinuance, or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st of June, 1835, but only within the period during which by virtue of the provisions of this act an entry might have been made upon the same land by the person bringing such writ or action, if his right of entry had not been so taken away." It may be conceded, that, if the 21st and 22nd sections had not been in the act, the time for the demandant to have brought his formedon would have been within twenty years after the death of the tenant-in-tail. The general rule of prescription is expressed in the maxim,

"Contrà non valentem agere non currit præscriptio." It would be manifestly absurd to make the prescription run against a person who is excluded by his own act from doing anything during the time limited. Here, the tenant-in-tail was excluded by his conveyance: there was no period "herein before limited," for, there was no discontinuance until after the tenant-in-tail had parted with his right, so that the period of limitation never began to run. The 22nd section, upon which the main reliance is placed on the other side, applies to the case of tenant-in-tail of land or rent entitled to recover the same. Here, the demandant's father was not a person in that position, nor did he die before the expiration of the period "herein before limited." The action is to be brought only within the period during which, by virtue of the provisions of the act, an entry might have been made upon the same land by the person bringing such writ or action, if his right of entry had not been so taken away. Sir Edward Sugden, in his essay upon this statute, edit. 1852, p. 89, says: "When the right of a tenant-in-tail has been barred by reason of the entry, distress, or action not having been made or brought within the period before limited, no such entry, distress, or action can be made or brought by any person claiming any estate, interest, or right which such tenant-in-tail might lawfully have barred (s. 21). And when a tenant-in-tail has died before the expiration of the period before limited, no person claiming any estate, interest, or right which such tenant-in-tail might lawfully have barred, can make an entry or distress or bring an action, but within the period during which, if such tenant-in-tail had so long continued to live, he might have made such entry or distress or brought such action (s. 22). These were reasonable provisions. The neglect of the tenant-in-tail will bar all those,-issue in tail and remainder-men,-whom the tenant-in-tail himself might have barred, and, if the

1852.

CANNON,

Dem., RIMINGTON, Ten.