3&4 Will.4, stat. 11 Geo. 2, c. 17, s. 5, every grant made of any advowson or right of C. 27, s. 31. presentation, collation, nomination, or donation, by any person professing the Catholic religion, or by any mortgagee, or trustee of such person, is void, unless it be for valuable consideration to a Protestant purchaser. (See 9 & 10 Vict. c. 59.)

An advowson donative being in the patron's disposal by his own deed of donation, without presentation, institution or induction, (Co. Litt. 344 a,) is not subject to lapse, (Ib.; Fairchild v. Gayre, Cro. Jac. 63; Britton v. Wade, Ib. 515,) unless such be the terms of the foundation, or unless the donative be augmented by Queen Anne's bounty, in which case it is subject to lapse, by statute 1 Geo. 1, st. 2, c. 10, ss. 6, 14, in case there be no nomination within six months. (See Mutter v. Chauvel, 1 Mer. 475.) As to proof of augmentation, see 11 East, 478. The ordinary may, by ecclesiastical censures, compel the patron of a donative to fill the church. (3 Salk. 140; Rex v. Bishop of Chester, 1 T. R. 396.)

By stat. 21 Hen. 8, c. 13, if a person having a benefice with cure of souls, of the yearly value of 81. or above, was instituted and inducted into any other benefice with cure of souls, the first benefice became void. (See, on the construction of this statute, Boteler v. Allington, 3 Atk. 453; Botham v. Gregg, 4 Moore & S. 230; Halton v. Cove, 1 B. & Ad. 530.) The stat. 1 & 2 Vict. c. 106, ss. 1-13, has repealed the stat. 21 Hen. 8, c. 13, and made new provisions as to pluralities, which provisions apply generally to all persons and benefices without distinction of value. By the 11th section of 1 & 2 Vict. c. 106, institution into a second benefice ipso facto avoids the first. (See Storie v. Bishop of Winchester, 9 C. B. 62; Ex parte Bartlett, 12 Q. B. 488, as to avoidance by non-residence under ss. 54, 58, of the same statute, when the clerk is in prison.)

Further provisions are made relating to the holding benefices in plurality by statute 13 & 14 Vict. c. 98.

When person

claiming an

remainder,

&c. after an estate tail shall be barred.

Estates subsequent to Estates Tail.

XXXII. That in the construction of this act every advowson in person claiming a right to present to or bestow any ecclesiastical benefice, as patron thereof, by virtue of any estate, interest or right which the owner of an estate_tail in the advowson might have barred, shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action or suit, shall be limited accordingly.

No advow

son to be re

100 years.

Extreme Period of Limitation One Hundred Years.

XXXIII. Provided always, and be it further enacted, covered after that after the said thirty-first day of December, one thousand eight hundred and thirty-three, no person shall bring any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the

c. 27, s. 33.

right of presentation or gift of such person, or of some 3&4 Will.4, person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share, or alternate right of presentation or gift, held or derived under the same title, unless a clerk shall subsequently have obtained possession of such benefice on the presentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share or right held or derived under the same title (z).

(z) It will be observed that there is no saving of the rights of persons under disabilities. It will still be necessary to require abstracts of titles to advowsons to be carried back for a century at least. An abstract of title to an advowson should be accompanied with evidence that the presentations have from time to time been made by the persons appearing to be the owners of the advowson. Sir W. Blackstone observes, that instances are not wanting, wherein two successive incumbents have continued for upwards of 100 years; and states as an instance, that two successive incumbents of the rectory of Chelsfield-cum-Farnborough, in Kent, continued 101 years; of whom the former was admitted in 1650, the latter in 1700, and died in 1751. (3 Chitt. Bl. Comm. 250; Co. Litt. 115, a.)

FINAL EXTINCTION OF RIGHT.

limitation

the party out

XXXIV. That at the determination of the period At the end of limited by this act to any person for making an entry or the period of distress, or bringing any writ of quare impedit or other the right of action or suit, the right and title of such person to the of possession land, rent or advowson, for the recovery whereof such to be extinentry, distress, action or suit respectively might have been made or brought within such period, shall be extinguished (a).

guished.

(a) This section of the act is new in principle, as the former sta- Effect of this tutes of limitation were held not to bar the right but merely the section. remedy. (See 1 Wms. Saund. 283 a, n.; 2 B. & Ad. 413; 1 B. & Ald. 93; 1 Ld. Raym. 422.) The old statutes only barred the remedy, but did not touch the right; possession at all times gave a certain right, but, under the new act, when the remedy is barred, the right and title of the real owner are extinguished, and are in effect transferred to the person whose possession is a bar. (Incorporated Society v. Richards, 1 Dru. & War. 289.) By the effect of the statute after the proper period of limitation has passed, the legal fee-simple is in the party who has been in possession during that period, and he is competent to convey to another. The old statute of limitations was held to operate as an extinguishment of the remedy of one, and not as giving the estate to the other, where one heir in gavelkind had disseised the other, and been in the sole possession sixty-two years. (1 Bl. R. 678.) Under this and the 2nd and 3rd sections the right to rent is extinguished by the lapse of twenty years from the time of the last payment of such rent, although twenty years have not expired since the rent became due. (Ante, 155 n. (1).)

3 & 4 Will. 4, c. 27, s. 34.

Though by this section the right is extinguished at the end of twenty years, still adverse possession by a succession of independent trespassers for a period exceeding twenty years confers no right on any one of them who has not himself had twenty years' uninterrupted possession, except as furnishing a defence to a trespasser in possession against an action by the rightful owner. (Dixon v. Gayfere, 17 Beav. 421; 23 Law J., Chanc., 60.)

After both the trustees and cestui que trust had been out of possession more than twenty years, an ejectment was brought by A. B., the heir of the trespasser, in the name of the trustee, and he obtained judgment. The trustee who, disclaiming all personal interest, then instituted a suit seeking to have the rights declared as between the rightful owner and the heir of the trespasser, and the court by its receiver took possession. A. B. afterwards instituted a suit against the trustee and the rightful owner to recover the property. It was held, that the court being in possession this statute had conferred no right and did not apply. (Ib.) A. wrongfully entered and died intestate, his widow entered. It was held, that the possession of the widow was not a continuance of that of her husband, it not being shown that she was entitled to dower, and such a right not entitling her to enter into the whole estate. (Ib.) A suit dismissed as against the principal defendant, and which though pending as against the others has yet been practically abandoned, does not prevent the operation of the statute. (Ib.)

Without the aid of this statute twenty years' possession gave a prima facie title against every one, and a complete title against a wrong-doer who could not show any right, even if such wrong-doer had been in possession many years, provided they were less than twenty. (Doe d. Harding v. Cooke, 7 Bing. 346; see ante, p. 152.) And the effect of this section would probably be to give the right to the possessor for twenty years even against the party in whom the legal estate formerly was, and, but for the act would still be, where he had not obtained the possession till after the twenty years, but then it is apprehended that such twenty years' possession must be either by the same person or by several persons claiming one from the other by descent, will or conveyance. (Doe d. Carter v. Barnard, 13 Q. B. 945, 952.)

Where a Statute of Limitations extinguishes the right and does not merely bar the remedy, the defence under such statute need not be pleaded specially, and therefore in an action of replevin evidence of the lapse of twenty years since the last payment of rent may be given under a plea in bar of non tenuit. (De Beauvoir v. Owen, Law J. 1850, Exch. Ch. 177; 5 Exch. 166; Owen v. De Beauvoir, 16 Mees. & W. 547.)

The court will compel a purchaser to take a title depending upon parol evidence of adverse possession under the Statute of Limitations, 3 & 4 Will. 4, c. 27. A testator, by his last will and testament, after appointing certain lands to his eldest son, George, gave all the residue of his real estate among his six younger sons, subject to the payment of his debts and some charges. Shortly afterwards, he obtained a conveyance of certain freehold property, which was the subject of the controversy in the present suit, and died without having altered in any respect or republished his will, leaving his eldest son of full age. Upon the death of the testator, in 1791, the six younger sons entered into the possession, inter alia, of the after-acquired property, and so continued until the present time: George, the eldest son, died in 1819, leaving an infant heir. It did not appear that any claim was ever made on the part of George during his life or after his death by his heir-at-law, and the younger sons continued during the entire of such period in the undisturbed

enjoyment of the property. In 1839 the premises were sold under 3 & 4 Will. 4, a decree of the court, pronounced in a suit instituted by a judgment c. 27, s. 34. creditor of the testator, in which suit the infant heir was a party defendant. Subsequently to this sale the heir died, and the suit was not revived against the next heir. The abstract of title stated all the above matters, and was verified by two affidavits deposing as to the fact of the possession and receipt of rent by the younger sons: it was held, upon objections to the title on the part of the purchaser, that by the operation of the statute 3 & 4 Will. 4, c. 27, such a title had been created as the purchaser was bound to take. (Scott v. Nixon, Dru. & War. 388.) In the subsequent case of Tuthill v. Rogers, (6 Ir. Eq. R. 441; 1 Jones & L. 36,) Sugden, L. C., observed, that the above decision had been acquiesced in, and in conformity with it he should be compelled in principle to adopt the same construction against the rights of the crown, if the case came within the provisions of the act 48 Geo. 3, c. 47, by which the right of the crown is barred, and the estate actually transferred and vested in the person who has held adverse possession for sixty years.

RECEIPT OF RENT.

rent to be

XXXV. That the receipt of the rent payable by any Receipt of tenant from year to year, or other lessee, shall, as against deemed resuch lessee or any person claiming under him (but sub- ceipt of project to the lease), be deemed to be the receipt of the profits of the land for the purposes of this act.

fits.

tions abo

the 31st De

IX. ABOLITION OF REAL AND MIXED ACTIONS, &c. XXXVI. That no writ of right patent, writ of right Real and quia dominus remisit curiam, writ of right in capite, writ mixed acof right in London, writ of right close, writ of right de lished after rationabili parte, writ of right of advowson, writ of right cember, upon disclaimer, writ de rationalibus divisis, writ of right 1834; of ward, writ de consuetudinibus, et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de theolonia, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in remainder, or in reverter, writ of assize, of novel disseisin, nuisance, darrein presentment, juris utrum, or mort d'ancestor, writ of entry sur disseisin, in the quibus, in the per, in the per and cui, or in the post, writ of entry sur intrusion, writ of entry sur alienation, dum fuit non compos mentis, dum fuit infra ætatem, dum fuit in prisona, ad communem legem, in casu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui ante divortium, writ of entry sur abatement, writ of entry quare ejecit infra terminum, or ad terminum qui præteriit, or causa matrimonii prælocuti, writ of aiel, besaiel, tresaiel, cosinage, or nuper obiit, writ of waste, writ of partition, writ

except for

3&4 Will.4, of disceit, writ of quod ei deforceat, writ of covenant real, c. 27, s. 36. writ of warrantia chartæ, writ of curia claudenda, or writ per quæ servitia, and no other action real or mixed (except a writ of right of dower, or writ of dower unde dower, quare nihil habet (b) or a quare impedit (c), or an ejectment (d), and no plaint in the nature of any such writ or action (except a plaint for freebench or dower), shall be brought after the thirty-first day of December, one thousand eight hundred and thirty-four.

impedit and ejectment.

Recovery of dower.

(b) The right to bring real actions is preserved for a limited time by the 37th and 38th sections. (See post, p. 238.) A writ of right by journeys accounts, sued out after the time allowed by stat. 3 & 4 Will. c. 27, s. 36, for suing out original writs of right, is a nullity, being a new writ and not a continuance of a former one. (Davies v. Lowndes, 2 Dowl. & L. 272; 6 Man. & G. 529; 8 Scott, N. R. 539. See 1 Phill. C. C.328.)

It seems that an action of debt does not necessarily lie for rent in consequence of the abolition of real actions. (Varley v. Leigh, 2 Exch. R. 450.) If a tenant in a writ of right obtain judgment on demurrer to the count, the demandant not joining in the demurrer but making default, the judgment for the tenant ought not to be final, no issue being joined on the mise. A judgment under such circumstances, barring the demandant as to the present action, is, so far, good; but if it also adjudge that the tenant shall hold to him and his heirs quit of the demandant and his heirs for ever, that part is erroneous, and judgment ought so far to be reversed. So held by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench. (Nesbit v. Rishton, 11 Ad. & El. 244; 6 Ad. & El. 103; 9 Ad. & El. 426; 2 Per. & D. 706.)

A writ of right of dower lies when a widow has dower of part of the lands in the same vill, for then she cannot have dower unde nihil habet against the same tenant. (Com. Dig. Dower (G. 1). See Roscoe on Real Actions, 29.) Dower unde nihil habet is a writ of right in its nature, and lies in all cases where a woman has a right of dower, except where she has part from the same tenant in the same vill where she now demands it. (Com. Dig. Dower (G. 2). See Roscoe on Real Actions, 39; 2 Wms. Saund. 43-45 d, notes; Roper on Husband and Wife, by Bright, pp. 391-431, where the mode of proceeding is fully explained.)

In a writ and count in dower the exact number of acres of land in respect of which dower is demanded is not material; in order, therefore, to sustain a plea alleging that the tenements mentioned in the count were subject to an outstanding term, it is sufficient for the tenant to show that all the lands held by him in the parishes named in the count are subject to the term. (Garrard, dem., Tuck, ten., 8 C. B. 231.)

So a count in dower under the Statute of Merton, the tenant pleaded tout temps prist, the demandant replied a demand and refusal to render dower before the suing out of the writ, to which the tenant rejoined by a traverse of the demand. The issue having been found for the demandant: it was held, that she was entitled to damages, to be computed from the decease of her husband. (Watson v. Watson, 10 C. B. 3.) It seems that a demand of dower need not be made by the widow personally or in the presence of witnesses. (Ib.)

It has been held, that copyholders shall neither plead nor be impleaded for the tenements which they hold by copy by the king's writ, but shall have their plaints in the nature of the several actions at common law, unless the dispute arise between the lord and