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has been created by simple contract, and has not been distinctly recognised within six years as a subsisting obligation, either in some writing signed by the party chargeable, or his agent, or by part payment, no action can be maintained to recover it ; that is, it is conclusively presumed to have been paid. So, all actions on the case, other than slander, actions of trespass to goods or land, and actions of detinues or replevin, must be brought within a like period of six years after the cause of action shall have accrued ;4 and no action can be maintained for an assault or false imprisonment after the lapse of four years ;5 for slander after the lapse of two years ; 6 or for compensation to the families of persons killed by accident, after twelve calendar months from the death of the deceased. So, actions against persons for anything done by them under the authority or in pursuance of any local and personal Act, must be brought within two years after the cause of action shall have accrued, or in the case of continuing damage, within one year after the damage shall have ceased. So, all actions and proceedings against persons acting under any of the statutes passed in 1861, to consolidate the law relating to larceny, malicious injuries, or coin, or under the Naval Prize Act,

of assault, battery, wounding, imprisonment, or any of them, within four years next after the cause of such actions or suit, and not after ; and the said actions upon the case for words, within two years next after the words spoken, and not after.” The exception marked in italics, after perplexing the courts for two centuries, and giving rise to numerous conflicting decisions, has at length been repealed by 19 & 20 V., c. 97, $ 9.

i The St. of Limit. 21 J. 1, c. 16, applies to an action of debt for a penalty under a by-law. Tobacco-pipe Makers' Co. v. Loder, 16 Q. B. 765.

? 9 G. 4, c. 14, § 1; 19 & 20 V., c. 97, § 13.

3 See Wilkinson v. Verity, 6 Law Rep., C. P. 206 ; 40 L. J., C. P. 141, S. C.; as to when the cause of action will accrue in detinue. 4 See ante, p. 87, n. 6.

5 See id.

6 See id. 7 9 & 10 V., c. 93, § 3, as amended by 27 & 28 V., c. 95.

8 5 & 6 V., c. 97, § 5, passed 10 Aug., 1842, after reciting, that “divers Acts commonly called public local and personal, or local and personal, Acts, and divers other Acts of a local and personal nature, contain clauses limiting the time within which actions may be brought for anything done in pursuance of the said Acts respectively,” enacts, that “ the period within which any action may be brought for anything done, under the authority or in pursuance of any such Act or Acts shall be two years, or in case of continuing damage, then within one year after such damage shall have ceased."

9 24 & 25 V., c. 96, § 113; c. 97, § 71 ; c. 99, § 33.

CHAP. V.

STATUTES OF LIMITATION.

89

1864, the Prison Act, 1865, the Seaman's Clothing Act, 1869, the Public Health Act, 1875,4 or the Militia Act, 1875,5 must be “ commenced within six months after the fact committed ;” and no action can “ be brought against any justice of the peace, for anything done by him in the execution of his office," unless it be commenced within a like period. Under some of the Metropolitan Police Acts, the right of action is limited to three months from the date of the injury, while two months are the limit under “The Customs Consolidation Act, 1876.”8 So, when a judgment has been obtained against a banking copartnership, no execution can issue thereon against any former member of such copartnership, after the expiration of three years next after the person sought to be charged shall have ceased to be a member. Again, the period within which over-payments of duty may be returned by the Commissioners of Customs is limited to six years.10

$ 74. In like manner, the right of the Sovereign,11 and of the $ 65 Duke of Cornwall,12 to institute legal proceedings for the recovery of lands, rents, or minerals, is barred, under several special statutes, by uninterrupted possession for a period of sixty, or in certain cases,

of one hundred years. The possession, too, of land, or of rent, for the length of time mentioned in the general statutes of limitation, under a claim of absolute title and ownership, constitutes against all subjects of the Crown a conclusive presumption of a valid grant.13 So the payment of a modus, or

| 27 & 28 V., c. 25, § 51.

2 28 & 29 V., c. 126, § 50. 3 32 & 33 V., c. 57, § 6.

4 38 & 39 V., c. 55, § 264. $ 38 & 39 V., c. 69, § 97.

6 11 & 12 V., c. 44, § 8; 12 & 13 V., c. 16, § 8, Ir. In Scotland, under " the Summary Procedure Act, 1864,” the period is fixed at two months, 27 & 28 V., c. 53, § 35.

1 2 & 3 V., c. 71, $ 53 ; Barnett v. Cox, 9 Q. B. 617; Hazeldine v. Grove, 3 Q. B. 997; 3 G. & D. 210, S. C.

$ 39 & 40 V., c. 36, § 272, as amended by 40 V., c. 13, § 4.

97 G. 4, c. 46, § 13. See In re North of Engl. Joint Stock Bank Co., ex parte Gouthwaite, 20 L. J., Ch. 188, 192, 193 ; Barker v. Buttress, 7 Beav. 134. 10 34 & 35 V., c. 103, § 5.

11 9 G. 3, c. 16 ; 24 & 25 V., c. 62. 12 7 & 8 V., c. 105, $$ 73, et seq. ; 23 & 24 V., c. 53 ; 24 & 25 V., c. 62. 13 This period has been limited differently, at different times ; but for

many years past, it has been shortened, at successive revisions of the law, th in

the adverse, and as of right enjoyment of land tithe-free, for the periods specified in the Act of 2 & 3 W. 4, c. 100, conclusively

England and the United States. In 1833 the Act of 3 & 4 W. 4, c. 27, passed ; and by $ 2 of that Statute all actions to recover land or rent are barred, after twenty years from the time when the right of action accrued ; unless, at such time, the plaintiff or the party through whom he claims shall have been under some disability, specified in the Act, in which case he is allowed ten years from the ceasing of the disability ; provided that in no case shall an action be brought after forty years from the time when the right first accrued, although the period of ten years shall not have expired. $$ 16 & 17. This statutory rule is extended by SS 24 & 25, to all claims in equity for the recovery of land ; Magdalen College v. Att.-Gen., 26 L. J., Ch. 620; 6 H. of L. Cas. 189, S. C. ; and it also applies to a claim for dower ; Marshall v. Smith, 34 L. J., Ch. 189, per Stuart, V.-C.; to a claim for compensation for equitable waste; D. of Leeds v. Ld. Amherst, 2 Phill. 117; and to the claim of an annuity charged upon land by will, the twenty years in this last case being calculated from the death of the testator ; James v. Salter, 3 Bing. N. C. 544. The sections, however, just referred to do not apply to spiritual or eleemosynary corporations sole, who are empowered by § 29 to bring actions or suits to recover land or rent within two successive incumbencies and six years, or, in case these periods do not amount to sixty years, then within sixty years next after the right of action shall first have accrued. $$ 30—33 limit the time within which advowsons can be recovered, while § 40 enacts, that all moneys charged upon land and legacies shall be deemed satisfied at the end of twenty years, unless some interest shall have been paid, or some written acknowledgment shall have been given in the meanwhile. Under $ 28 no mortgagor shall bring a suit to redeem a mortgage but within twenty years from the time when the mortgagee took possession, or from the last written acknowledgment of the mortgagor's title. Mortgagees also may bring actions to recover land at any time within twenty years next after the last payment of any part of the principal or interest secured by the mortgage, 7 W. 4, & 1 V., c. 28 passed in 1837; Doe v. Eyre, 17 Q. B. 366 ; Doe v. Massey, id. 373 ; Ford v. Ager, 2 New R. 366, per Ex. ; 32 L. J., Ex. 269 ; 2 H. & C. 279, S. C. ; provided that such last payment be itself within twenty years from the date of the mortgage ; Hemming v. Blanton, 42 L. J., C. P. 158. See also, 6 & 7 V., c. 54, and 7 & 8 V., c. 27, which Acts extend to Ireland such of the provisions of 3 & 4 W. 4, c. 27, as were not already in force there, and explain and amend that Act. This period of twenty years has been adopted in most of the United States. See 4 Kent, Com. 188,

The same period in regard to the title to real property, or, as some construe it, only to the profits of the land, is adopted in the Hindoo law. 1 Macnagh. Elem. of Hindoo L. 201. See, as to the Scotch law, 37 & 38 V., c. 94, $$ 13, 34. Under the “Real Property Limitation Act, 1874,” 37 & 38 V., c. 57, which, however, is not to come into operation till the 1st January, 1879, the periods of limitation have been greatly reduced, six, twelve, and thirty years having been substituted for the ten, twenty, and forty years mentioned in the Acts of 1833 and 1837.

1 See Salkeld v. Johnson, 2 Ex. R. 256. In this important case, which was

n. a.

CHAP. v.]

TITLE TO LAND-THE PRESCRIPTION ACT.

91

bars the right of all parties, even the Queen, to recover tithes, unless such payment has been made, or enjoyment had, under an express written consent or agreement.

$ 75. So, also, in the completion of any contract of sale of land, $ 65 the period of the commencement of title, which a purchaser may require, or, in the language of conveyancers, the root of title, is now fixed by statute at forty years, unless there be some stipulation to the contrary in the contract, or some very special circumstances in the case. Thus, too, by the Prescription Act, the length of time which constitutes the period of legal memory, or in other words,

an issue out of Chancery, the Barons decided,—1st, That the enjoyment of land, producing titheable matters, without payment of tithe for the period prescribed by the Act stated above, if adverse and as of right, created an indefeasible exemption from tithes, without other proof of the legal origin of the exemption ; but, secondly, that the non-payment of tithes of a particular thing for such period, in respect of lands for which tithes of other titheable produce had been paid within the statutable period, did not exempt the payment of the tithes of that particular thing. Subsequently, Ld. Cottenham, C., while he confirmed the decision of the Ct. of Ex. on the first point, overruled it on the second. See S. C. reported in 1 Hall & T. 329 ; 1 M. & Gord. 242, S. C. See, also, Fellowes v. Clay, 4 Q. B. 313; 3 G. & D. 407, S. C. ; and Salkeld v. Johnson, 1 Hare, 196, & 2 Com. B. 749.

See Toymbee u. Brown, 3 Ex. R. 117. 2 37 & 38 V., c. 78, § 1. 3 2 & 3 W. 4, c. 71,--extended to Ireland by 21 & 22 V., c. 42,-limits the period of legal memory as follows :-In cases of rights of common or other profits or benefits arising out of lands, except tithes, rent, and services, primâ facie to thirty years, and conclusively to sixty years, unless it shall appear that such rights were enjoyed by some consent or agreement expressly given or made by deed or writing, $ 1; in cases of ways or other easements, watercourses, or the use of water, prima facie to twenty years, and conclusively to forty years, unless it shall be proved, in like manner, by written evidence, that the same were enjoyed by consent of the owner, § 2; and in cases of lights, conclusively to twenty years, unless it shall be proved, in like manner, that the same were enjoyed by consent, $ 3. See Tapling v. Jones, 34 L. J., C. P. 342, in Dom. Proc. ; 20 Com. B., N. S. 166, S. C. ; Lanfranchi v. Mackenzie, 26 L. J., Ch. 518; 4 Law Rep., Eq. 421, S. C. ; Aynsley v. Glover, 44 L. J., Ch. 523. § 4 directs, that the before-mentioned periods shall be deemed those next before some suit or action respecting the claims, and further defines what shall amount to an interruption. $ 6 enacts, that no presumption shall be made in support of any claim, upon proof of the enjoyment of the right for any less period than the period mentioned in the Act as applicable to the nature of the claim. § 7 provides for parties who are under legal disabilities. As to what evidence of user is necessary under this Act, see Lowe v. Carpenter, 6 Ex. R. 825. In

which affords a legal title, has in respect of incorporeal rights been definitely fixed; while by the Act of 3 & 4 W. 4, c. 42, the time within which actions of covenant, and debt on specialties, and actions for penalties,* may be brought, is expressly limited. So, where any real or personal estate, subject to a trust for a Roman Catholic charity, has been applied upon some trusts connected with that religion for twenty years, but the original trusts cannot be ascertained by any document, a consistent usage of twenty years is, by statute, rendered conclusive evidence of the trusts on which the property has been settled. So, under Lord Lyndhurst's Act for regulating suits relating to meeting-houses and other property held for religious purposes by dissenters, the usage for twenty-five years immediately preceding any such suit, shall be taken as conclusive

the United States, the courts are inclined to adopt the periods mentioned in the statutes of limitation, in all cases analogous in principle. Coolidge v. Learned, 8 Pick. 504; Melvin v. Whiting, 10 Pick. 295 ; Ricard v. Williams, 7 Wheat. 110.

1 A right to the passage of air and light to a garden, Potts v. Smith, 38 L. J., Ch. 38, per Malins, V.-C. ; or of air to a windmill, is not within the meaning of this Act, Webb v. Bird, 13 Com. B., N. S. 841 ; nor is a claim of “ a free fishery” in the waters of another, Shuttleworth v. Le Fleming, 19 Com. B., N. S. 687.

$ 3 enacts, that actions of debt for rent upon an indenture of demise, actions of covenant or debt upon any bond or other specialty, and actions of debt or scire facias upon recognisance, shall be brought within twenty years after the cause of such actions or suits ; actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estate, or for an escape, or for money levied on any scire facias, within six years after the cause of such actions or suits ; and actions for penalties, damages, or sums of money given to the party grieved by any statute now or hereafter to be in force, within two years after the cause of such actions : “ Provided that nothing herein contained shall extend to any action given by any statute, where the time for bringing such action is or shall be by any statute specially limited.” § 4, as amended by 19 & 20 V., c. 97, § 10, provides for parties under legal disabilities, and § 5 states the effect of an acknowledgment in writing or part payment. See, also, the Irish Act of 16 & 17 V., c. 113, $$ 20—24.

3 The term “specialty” includes all actions on statutes, as, for instance, an action against a shareholder of a company for calls. Cork & Bandon Rail. Co. v. Goode, 13 Com. B. 826 ; Shepherd v. Hills, 26 L. J., Ex. 6.

See, also, as to actions for penalties, 31 El. c. 5, § 5, as limited by 11 & 12 V., c. 43, § 36, and Dyer v. Best, 1 Law Rep., Ex. 152; 35 L. J., Ex. 105 ; and 4 H. & C. 189, S. C.

5 23 & 24 V., c. 134, $ 5.

4

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