mitted him to continue to take the tithe of oats. Upon the above part of the answer being read in evidence by the defendant, the counsel for the plaintiff also read the following sentence from the same answer: "That the lessors of the plaintiff had heard as truth, that the said John Pryse did pay or deliver to the sid Sir N. H. Carew divers quantities of corn and straw; and tlat the said Sir N. H. Carew did receive the tithe of oats withn the said parish;" which corn and straw, he insisted, was delivered by way of render, and the tithe of oats received in corsideration of the demise, and on the footing of the several agreements contained in the several leases. No rent appeared to have been paid by the rectors of Beddington to the lords of the manor since the year 1753; but the latter continued to take the tithe of oats until a decree made in favour of the rector, in consequence of the above mentioned bill in equity. The present defendant was instituted to the living of Beddington in

the year 1782; and *it was not till after that period [*54] that the lease of 1703, which had been lost, was discovered.

Lord Alvanley, Ch. J. If the rules of law will permit me to do otherwise, I shall be very sorry to give any countenance to the defence which has been resorted to in the present case. And the more so, because the two parties, in ascertaining their respective rights, meet upon very unequal terms; the one, as the representative of the church, being barred by no lapse of time in the claim of any dormant rights, whereas the other has to encounter the difficulties opposed to him by the statute of limitations. It is not disputed that the premises in question were demised to the rectors of Beddington by the predecessors of the present lessors of the plaintiffs, reserving to themselves certain rents, and also the tithe of oats within the parish. Since the year 1753, the rectors have ceased to pay the rents reserved in the lease, but the Carew family have continued to receive the tithe. Possibly, therefore, at the time at which the rents were withheld, it was agreed between the then rector and the representative of the Carew family, that if the latter were per

mitted to receive the tithe as before, the former should be permitted to retain the land demised. Considering, therefore, that this is a question to be submitted to a jury, and understanding from the learned judge who tried the cause, that whatever was contested at the trial was submitted by him to the jury, I am of opinion that the present verdict ought not to be disturbed.

Heath, J. The doctrine of remitter furnishes a strong analogy in favour of the present lessors of the plaintiffs; [*55] *for the rule is, that a man who is in by a puisne estate, shall be remitted without any act of his own, but by a mere operation of law in his eigne estate. Now that rule seems to me very applicable to the present case; for it is clear that the Carew family continued to receive the tithe of oats, and therefore should, as it appears to me, be held to have received them in that right which they acquired under the demise by which they granted the premises in question. Besides, it is to be recollected, that this question arises upon the statute of limitations, which always receives a strict construction from the courts.[1]

Rooke, J. It is clear that the Carew family and the Rectors of Beddington agreed to create the relation of landlord and tenant between themselves by the lease of 1703; and up to the present time, the one has continued to receive the tithe, and the other to hold the land. The present rector attempts to avail himself of a rule of law highly favourable to the church, by by which he may, without any limitation of time, reclaim the tithe granted as a consideration for the enjoyment of the land in question by his predecessor, and yet prevent the Carew family from reclaiming their land by setting up the statute of limitations in bar of their demand. This is so unjust, that I shall be glad to find out any ground upon which we may be enabled

[1] "Every Statute of Limitations, being in restraint of right, "must be construed strictly." Pease vs. Howard, 14 Johns. Rep. 479. (per VAN NESS, J. delivering the Opinion of the Court.)

to defeat his attempt. Now it does appear to me, that the former rectors of the parish may be presumed to have intended to do justice, and therefore to have permitted the Carew family to receive the tithe of oats by way of compensation for the land which they continued to hold. If so, the present rector not having succeeded to the living till 1782, the possession of the premises in question was not adverse up to that period, and since that period twenty years have not elapsed. *Upon the whole, therefore, I think there ought not to be a new trial.

[56]

Chambre, J. Upon this question I have entertained considerable doubts; nor, indeed, is my mind altogether free from doubts at the present moment. Those doubts do not respect the justice of the case, for that is most clearly with the lessors of the plaintiff. I am not, indeed, altogether without suspicion, that the contract entered into between the rectors of Beddington and the Carew family originated in simony; the latter reserving to themselves much more than they were entitled to, under the name of a compensation for the manor-house and lands. But however that may be, it will not affect the present question. If this case were to be again submitted to a jury, I think they might fairly conclude, that in 1753, the then rector of Beddington quarrelled with the terms of his lease, and though he refused to continue the stipulated renders to the Carew family, yet permitted them to receive the tithe of oats. Possibly, at the trial, the question was not put to the jury quite so fully as it might have been, but reserved rather too much as a dry point of law. Indeed, could I be convinced that the jury had considered and decided the precise question, my doubts would be removed. Certainly, in the litigation of their respective rights, these parties contend on very unequal terms; the rector availing himself of a maxim in law in favour of the church, to which the Carew family, as laymen, cannot resort. The point, how ever, which, in this case, has most embarrassed my mind, is the degree of positive truth drawn from the answer in chancery of the lessors of the plaintiff in their own favour. It is true

that it was introduced into the cause by the defend[*57] ant, on *whose behalf some parts of the answer were read. But in those parts on which the lessors of the plaintiff relied, they speak only to what they "have heard as truth." I think that was not admissible evidence; for it appears to me, that where one party reads a part of the answer of the other party in evidence, he makes the whole admissible only so far as to waive any objection to the competency of the testimony of the party making the answer; and that he does not thereby admit as evidence all the facts which may happen to have been stated by way of hearsay only, in the course of the answer to a bill filed for a discovery. This point does not, indeed, appear to have been contested at the trial. Had it been contested, I should have thought the court bound to send the case down to a new trial. Upon the whole, however, I am disposed to concur with my lord, and my brothers, that there ought not to be a new trial in this case.

As to what act of the party to be benefited by the statute takes the case out of the statute. It was ruled, per Holt, Ch. J. at Maidstone, Lent Assises, 13 Wm. III. in an ejectment(a) brought by the executor of Harrison, that he was not barred by the statute of limitations, because the statute did not prejudice at the time of the assignment, there being but nineteen years elapsed; and then the joining of him in the assignment, who had the title to take advantage of the statute, gives a new title.

Also, it has been ruled,(b) that a claim or entry, to prevent the statute of limitations, must be upon the land, unless there be some special reason to the contrary.[1]

(a) Ld. Raym. 740. (b) 6 Mod. 44. Doug. 485. Bull. N. P. 102.

[1] "If a man hath title to enter into any lands or tenements, if "he dares not enter into the same lands or tenements, nor into any "parcell thereof for doubt of beating, or for doubt of mayming, or "for doubt of death, if he goeth and approach as neere to the tene

*And by the 4 & 5 Anne, c. 16. upon such claim

[*58*]

or entry, an action must be commenced within one year next after the making of such entry and claim, and prosecuted with effect, otherwise of no force to avoid the statute. [1]

"ments as hee dare for such doubt, and by word claime the lands "to bee his, presently by such claim he hath a possession and seisin "in the lands, as well as if he had entred in deed, although hee "never had possession or seisin of the same lands or tenements "before the said claime. "Litt. Sect. 419. & vide Green vs. Liter & Al. 8 Cranch. Rep. 425, 426.

46

"Here is to be observed, that there be two manner of entries, viz. an entry in deed and an entry in law. An entry in deed is sufficiently knowne. An entry in law is when such claime is made as is here expressed, which entry in law is as strong and as forci"ble in law as an entry in deed, and that as well where the lands "are in the hands of one by title as by wrong. And therefore "upon such an entry in law an assise doth lie, as well as upon an entry in deed, and such an entry in law shall avoid a warranty, " &c." Co. Litt. [253. b.]

And living within the view of the land will, under circum"stances, give the feoffee a seizin in deed as effectually as an ac"tual entry. There are, therefore, cases in which the law gives "the party a constructive seizin in deed. They are founded upon this plain reason, that either the claim is made sufficiently notori"ous by an actual entry into part, of which the vicinage can take "notice, or the party has done all that, under the circumstances of "the case he was bound to do. Lex non cogit ad vana aut impos"sibilia. The same is the result of conveyances deriving their ef"fect under the Statute of Uses; for there, without actual entry or "livery of seizin, the bargainee has a complete seizin in deed. "Com. Dig. Uses, [B. 1.] Cro. Eliz. 46. 1 Cruise Dig. 12. "Shep. Touch. 223, &c. Harg. Co. Litt. 271, [b.] note, [231.]" Green vs. Later & Al. 8 Cranch's Rep. 247. (per STORY, J. delivering the Opinion of the Court.)

[1] The same provision is contained in the Statute of the State of New-York, Chap. 183. Sect. 3. (1 R. L. 185.) entitled "An Act for the Limitation of Criminal Prosecutions, and of actions at Law." passed 8th April, 1801.