« ForrigeFortsett »
debtor died, and that by reason of litigation as to the right of probate, an executor of his will was not appointed until after the expiration of the six years, and that the plaintiff sued such executor within a reasonable time after probate granted ; (1) and this even though a personal representative of the debtor has not been constituted. (m)
The disabilities are, being under twenty-one years (n) of age; feme covert.
An idiot. (c) This means a person with a fatuity a nativitate vel dementia naturali, who never has any lucid intervals, e.g. cannot number twenty, tell the days of the week, does not know his own father or mother, or his own age, or the like. But he ceases to be so on giving sensible answers to questions. (p)
A lunatic. (9) This includes (r) imbecility of mind to the extent of incapacity ; from any cause, as disease, age, or habitual intoxication. This disability is removed (s) upon the lunatic having a lucid interval effecting a restoration of mind, sufficient to enable him soundly to judge of his acts.
(1) Rhodes v. Smethurst, 4 M. & W. 42.
(0) Bro. Idiot, 1 ; F. N. B. 233; Frances' case, Moor, 4, pl. 12; Beverley's case, 4 Rep. 123; Holmes's case, 1 Dyer, f. 25, pl. 164.
(p) Dickenson v. Blisset, Dick. 268.
(9) Att. Gen. v. Parnther, 3 Bro. C. C. 441 ; Ex parte Cranmer, 12 Ves. 450.
(r) Ridgeway v. Darwin, 8 Ves. 65; Sherwood v. Saunderson, 19 Ves. 285.
(s) Beverley's case, 4 Rep. 123 b; Hall v. Warren, 9 Ves. 611; White v. Wilson, 13 Ves. 88.
Absent beyond the seas, i.e. beyond Great Britain, Ireland, the islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent thereto, and being dominions of the Queen. (t) The removal of the disability here takes place on the "first return from beyond seas.” This expression is not to be grammatically considered, but looked at in general terms, and in its well known and popular sense ; the mere treading on English ground is not to be considered as a return; as if a party was on board a ship off Dover, and there should be an alarm of fire, in consequence of which he goes on shore there, and stays the night, and returns to the vessel on the following morning, this is not considered a return within the statute. (u)
7. Claims having reference to a custom, prescription, or grant, as to rights of common, profits, and benefit from land, and not being either tithes, rents, or services, must be made within a limited time. (x)
Where such right, profit, or benefit, has been actually taken and enjoyed as of right, and without interruption (y) for thirty years, (2) and before the commencement of any action ; (a) and so alleged in pleading,
(1) 3 & 4 Will. 4, c. 27, s. 19, Appendir.
(u) Monmouthshire Canal Company v. Harford, 1 C. M. & R. 614; Tickle v. Brown, 4 Ad. & E. 369; Wright v. Williams, 1 M. & W.77 ; Jones v. Price, 3 Bing. N. C. 52 ; Bensley v. Clarke, 2 Bing. N. C. 705; Richards v. Fry, H. T. 1838, (Q. B.) 3 N. & P. 67.
it cannot be defeated by showing only that it was first taken at any time before the thirty years so above limited. A claim so arising more than thirty years and less than sixty years may be defeated in any other way by which the same can by law be defeated, as by showing leave and licence ;(6) but if for more than sixty years, the right is absolute and indefeasible; unless there was a consent or agreement expressly made or given by deed or writing, and which is the only exception which can be made to such a right.
The words “enjoyment as of right” mean an enjoyment had not secretly, or by stealth, or by tacit sufferance, or by permission asked from time to time on each occasion, or even on many; but an enjoyment had notoriously without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser, as a matter of right; whether the right so claimed be strictly legal, as by prescription and adverse user, or by a deed, or be merely lawful, and was simply to excuse a trespass. (c)
8. Claims arising in reference to ways, easements, (d) watercourses, (e) or the use of water, are thus limited ; when enjoyed without interruption for twenty years ($) they are not defeated by showing a first commencement before the twenty years, as above. But if they were
(6) Campbell v. Wilson, 3 East, 294; 2 Jur. 1019. (c) Tickle v. Brown, 4 Ad. & E. 369; 1 Har. & W. 169. (d) Manning v. Wasdale, 5 Ad. & El. 758; 1 N. & P. 172. (e) St. Juhu v. Moody, 2 Lev. 148.
(f) Elliotson v. Feetham, 2 Scott, 174 ; 1 Hodges, 259; 2 Bing. N. C. 134; Bailey v. Appleyard, 3 N. & P. 257; 4 M. & W. 245.
first enjoyed within forty years, they may be defeated by any other means, as by proving a leave, favour, or other matter, as opposed to a claim, or assertion of right; and after forty years, unless they have been enjoyed by a consent or agreement expressly given or made by deed (g) or writing, they become absolute and indefeasible.
9. Claims arising as to the access and use (h) of light for dwelling-houses, workshops, and other buildings, are thus limited; when they have been enjoyed and without interruption for twenty years, and notwithstanding local usages and customs, they become, unless enjoyed by consent or agreement, expressly made or given by deed, (i) or writing, (k) or there has been an interruption, (l) and with notice (m) for a year, absolute and indefeasible.
(g) Termes de la Ley; Aldred's case, 9 Rep. 57 ; Moore v. Rawson, 3 B. & C. 340; 5 D. & R. 234.
(h) 2 Rolle's Abr. 141; Shepherd's Touchstone, 231 ; Bryan v. Whistler, 8 B. & C. 293; 2 M. & R. 318; Hewlins v. Shippam, 5 B. & C. 221; 7 D. & R. 783 ; Liggins v. Inge, 7 Bing. 690 ; Fentiman v. Smith, 4 East, 187.
(i) Hewlins v. Shippam, 5 B. & C. 221 ; 7 D. & R. 783.
(k) Bridges v. Blanchard, 1 Ad. & E. 536; Winter v. Brokwell, 8 East, 309.
(1) 2 & 3 Will. 4, c. 71, s. 4, Appendir.
(m) Plumb v. Flint, 2 Anstr. 482 ; Malloon v. Fitzgerald, Skin. 128 ; Com. Dig. Pleader (C. 73); Chancery (4 C. 1), (4 I. 3).
1. Trespass .......... page 22 | 7. On Awards, &c. ...... 25 2. On the Case .......... 23 8. On Contract.......... 26 3. Detinue ..
9. Taking the Case out of the 4. Replevin ............. ib. Statute- Disabilities.. 5. Preventing the Operation | 10. Penal. Actions ........ 31
of the Statute (er delicto). ib. 11. Preventing the Operation 6. Debt on Specialties—Dise
of the Statute er conabilities — Taking the
tractii ............. ib. Case out of the Statute . 25 12. Set-off .............. 35
In the following instances of limitation the remedy by action is alone taken away, and not the right. (a)
1. As to actions of trespass when quare clausum fregit, and for taking goods and personal chattels; they must be brought within six years next after the accruing of a right of action. (6) Where an injury has been committed to the real estate of a deceased person while he was living and within six calendar months before his death, and provided he could if living have maintained an action of trespass, his personal representative
(a) Heyling v. Hastings, 1 Com. 54 ; Quantock v. England, 5 Burr. 2629 ; Higgins v. Scott, 2 B. & Ad. 413.
(6) 21 J. 1, c. 16, s. 3, Appendir.