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exercise its right during his life, (t) or, at the latest, before the church is again full.
The legal presumption “ of life" is for seven (u) years, and “ of the age" of a legatee as (x) stated in the will.
5. The laws of Scotland, and of foreign countries, respecting the limitation of rights, are not regarded here, (y) unless they extinguish the right; and if the limitation arise by prescription, the latter must be uninterrupted and peaceable. (2)
In Scotland this limitation is termed “ Prescription.” (a) The first is the “ Positive,” (6) and which renders valid all heritages, where a charter or instrument of seisin are shown on returns, or precepts of clare constat, and clad with forty years continual and peaceable possession, (c) and without interruption. Secondly, the “ Negative,” and which, after forty years, considers (d) all actions competent upon heritable bonds, reversions, contracts, or other matters whatsoever to have been extinguished, and views so
(t) Rex v. Archbishop of Armagh, 2 Stra. 841.
(u) Holman v. Exton, Carth. 246; Nepean v. Knight, 2 M. & W. 894.
(2) Vulliamy v. Huskisson, (Exch. Eq.) H. T. 1838.
(y) Williams v. Jones, 13 East, 439; Huber v. Steiner, 2 Scott, 305; The British Linen Company v. Drummond, 10 B. & C. 903.
(z) Benest v. Pipon, Knapp's Cases, 60.
(c) Erskine, 3, tit. 7, s. 3; Ramsay v. Caitchison, January 22,
(d) Acts 1469, c. 29; 1474, c. 55, 1617.
long a silence as a dereliction, even though the debtor promises to pay it. (e)
In France the law of prescription affects the remedy only. (f)
In Jersey a continued and peaceable enjoyment for forty years, (g) except in the case of servitudes, gives a clear title.
By the statute of limitations in Jamaica (h) which bars the remedy, and all suits, claims, and demands thereon, a seven years' possession is converted into an absolute and indefeasible title ; there is not any exception in favour of absentees.
6. Where a debt or claim is extinguished, (i) as when it comes within the provisions of 3 & 4 Will. 4, c. 27,(k), all remedy on it is at an end. (1) Unity of possession extinguishes rents, commons, all matters of charge and interest in other men's lands, (m) and a prescriptive right of way;(n) but not things of necessity (o) or collateral things, such as a watercourse,
(e) December 24, 1728; Presbytery of Perth y. The Magistrates of Perth.
(f) Code Civil, L. iii. (tit. 20), of Prescription.
(8) Jersey Code, p. 223, Anno 1771; Basnage, tit. de Prescription, Art. 521.
(h) Beckford v. Coade, 17 Ves. jun. 87. (i) Bac. Abr. ii. 447; Vaughan, 199. (k) Sect. 34, Appendix. (1) Widdown v. Earl of Harrington, I J. & W. 534. (m) Peers v. Lucy, 4 Mod. 364. (n) 1 Saund. 323 a, n. (8); Wright v. Rattray, 1 East, 377. (6) Palmer, 445 ; 1 Saund. 323 a, in notis.
warren, or way of necessity, or matters of easement, such as the use of light and air. (p)
The statute commences running upon a cause of action arising (9) at a time when there is a person of capacity to sue. (r) In the case of an administrator the right reverts back to the death of the intestate, (s) and so in the case of a posthumous heir, to the death of his ancestor.(1) In computing the year, it runs from the same nominal day in one .year to that in the next; as if the day of payment is the 1st day of January, 1839; the statutes bars the remedy upon the arrival of twelve o'clock at midnight (u) of the 1st day of January, 1845 : where the right depends on the expiration of one year, a day is added, making together one year and a day; and therefore the running of any part of that day completes the limitation; dies inceptus pro completo habetur : and where it is reckoned from an act done, the day of that act is exclusive, (a), and the Code civil of France truly says, “ Prescription is reckoned by the day, and not by hours."(y) It arises at the end of the last day. (2)
(p) Hobart, 131.
(s) 3 & 4 Will. 4, c. 27, s. 7, Appendix; Wankford v. Wank. ford, 1 Salk. 300; Rex v. Hungerford, 2 Lutw. 1007, 1008; Middleton's case, 5 Rep. 28.
(t) Bassett v. Bassett, 8 Vin. Ab. 87; 3 Atk. 203; Bull. N. P. 10; 10 & 11 Will. 3, c. 16.
(u) Fountainhall, November 11, 1704, Blair.
(x) Ogilvy v. Mercer, Court of Session, December 10, 1793; House of Peers, March 1, 1796.
(y) L. iii. c. 5, s. 1, (2260).
1. Real Actions .....: page 11 | 6. Disabilities – Exceptions 17 2. Mixed and Personal Ac. 1 7. Claims by Custom-Pre
tions .............. 12/ scription-Grant .... 19 3. Judgment Debts – Real 8. Ways – Easements—Wa
Liens .............. 15 tercourses .......... 20 4. Monies charged on Land | 9. Access and use of Light.. 21 5. Distress for Rent ...... 16
1. The only real (a) actions now remaining are a writ of right of dower, (6) unde nihil habet, and quare impedit.
The two former must be brought within twenty years next after a right to dower accrued. (c)
A writ of quare impedit, in order to bar a presentation by lapse, must be sued out within six calendar months next after the vacancy happened ; (d) in case of abatement it may be continued by a writ of journeys
(a) Bracton, 102; 3 & 4 Will. 4, c. 27, s. 36, Appendix.
(b) 3 & 4 Will. 4, c. 105; The Earl of Buckinghamshire v. Drury, Wilmot's Opinions and Judgments, 177.
(c) S. 3; and 3 & 4 Will. 4, c. 27, ss. 1, 2, Appendir.
(d) Stat. West. 2, c. 5, s. 2; Anon. 1 And. 30; Case, 70; Grendit v. Baker, Yelv. 7.
accounts. (e) The limitation is the period during which three incumbents (s) have each held adversely (g) to the right or gift of the claimant, and provided they amount together to sixty years, and reckoning a subsequent presentation upon a lapse (h) or on an avoidance. (i) Where 100 years have elapsed (k) from the time of a clerk obtaining possession adversely, the claimant cannot, unless a clerk on his presentation or gift has subsequently obtained possession of the benefice, maintain any writ.
2. The act of limitation now in force with respect to real property is 3 & 4 Will. 4, c. 27. By its provisions (1) every action, (m) entry, or distress to recover land (n) or rent, must be brought or made within twenty years next after the time when the right, or any right (c) accrued ; and though the possession was not, in a technical sense, adverse, (p) except where a direct permission to occupy can be shown. (9) The right of an annuitant to distrain for an annuity given
(e) Theol. Dig. I. ii. c. 42, s. 8; Spencer's case, 6 Rep. 9. (f) 3 & 4 Will. 4, c. 27, s. 30, Appendix ; Paroch. Antiq. 171. (g) Adams on Ejectment, 46 ; Co. Lit. 242, 396. (h) Sect. 31, Appendix; Catesby's case, 6 Rep. 61. (i) Armagh (Archbishop) v. Attorney General, 2 Bro. P. C. 514. (k) 3 & 4 Will. 4, c. 27, s. 33, Appendir. (1) Sect. 2, Appendix. (m) Taylor v. Horde, 1 Burr. 60; Sid. 432. (n) Including dower; Lindsey v. Lindsey, 1 Salk. 291. (0) Sect. 20, Appendir; 4 Bing. N. C. 799.
(p) Nepean v. Doe, 2 M. & W. 894 ; Doe v. Edwards, 5 Ad. & E. 25.
(9) Doe d. Pritchard v. Janney, 8 Car. & P. 99.