TITLE XXXI. PRESCRIPTION. CHAP. II. Of the Statutes of Limitation. 1. Negative Prescription. 3. Statutes of Limitation. session. 22. The Possession must be ad verse. 42. And followed by an Action. 49. What are not within them. 53. Dignities. 54. Rents created by Deed. 30. A Lease postpones the Right 57. Fealty, &c. of Entry. 35. Where a second Right accrues, 38. The Entry must be on the 58. Bond Debts. 59. Nullus Tempus Act. Negative THE SECTION 1. HE second sort of prescription is that which arises from the several statutes of limitation; in consequence of which no action can be brought for the recovery of lands or tenements, after an uninterrupted possession of a certain number of years. It is different from the former prescription; for by that a right is acquired to an incorporeal hereditament: but by this last kind, the remedy for the recovery either of a corporeal or incorporeal heredita ment is taken away; from whence it may be called a negative prescription. 2. This kind of prescription is as ancient as that which arises from immemorial usage. For Bracton says-Longa enim possessio (sicut jus) parit jus pos- 52a. 'sidendi, et tollit actionem vero domino: quandoque unam, quandoque aliam, quandoque omnem. Quia omnes actiones in mundo, infra certa tempora, habent limitationem. And in a modern case the Court of K. B. Davenport v. said, the statutes of limitation operated as an extin- Tyrrell, guishment of the remedy of the one, not as giving the estate to the other. Tit. 19. § 9. 1 Inst. 114 b. 3. By the old law, no seisin could be alleged by Statutes of the demandant in a real action, but from the time of Limitation, King Henry I. By the statute of Merton, 20 Hen. III., the seisin must have been alleged from the time of 2 Inst. 94. King Henry II.; and by the statute of Westm. 1. Id. 238. 3 Edw. I. c. 59., the seisin must have been alleged from the time of Richard I. 4. The period established by the last of these 3 Comm. 189. statutes increased every day, till at last it was scarce any limitation at all. So that it became necessary to fix a certain period of time within which a claim to lands and tenements must be made; and beyond which an undisturbed possession became a good title, by operating as a bar to every kind of action. This was effected by the statutes 32 Hen. VIII. c. 2. and 21 Ja. I. c. 16., which were made for the purpose of quieting the titles to estates, and avoiding suits; and have therefore been called statutes of repose. 5. The first section of the stat. 32 Hen. VIII. As to Writs of Right. enacts, "That no manner of person or persons shall sue, have, or maintain any writ of right, or make any prescription, title, or claim of, to, or for any manors, lands, tenements, rents, annuities, commons, pensions, Dally v. 1 H. Black. R. 1. As to prescriptive Rights. As to Avowries. portions, corrodies, or other hereditaments, of the possession of his or their ancestor or predecessor, and declare and allege any further seisin or possesrion of his or their ancestor or predecessor, but only of the seisin or possession of his ancestor or predecessor which shall be seised of the said manors, &c. within threescore years next before the teste of the same writ." 6. In consequence of this clause, a writ of right cannot now be maintained by any person, without showing an actual seisin, by taking the esplees or profits, either in the demandant himself, or the ancestor under whom he claims, within sixty years. 7. As to incorporeal hereditaments, acquired by immemorial usage, the clause which has been just stated extends to them: therefore nothing can be now claimed by prescription, without showing a possession within sixty years. statute it is shall make any 8. By the 4th section of this enacted, ، That no person or persons avowry or cognizance for any rent, suit, or service, or allege any seisin of any rent, suit, or service, in the same avowry or cognizance, in the possession of his or their ancestors or predecessor or predecessors, or in his own possession, or in the possession of any other, whose estate he shall pretend or claim to Vide3Comm. have, above fifty years next before the making of the said avowry or cognizance.' 189. n. Bevill's Case, 4 Rep. 6. 9. This section only extends to rent, suit, and service; and not to such services as may not accrue within the time limited in it: of which an account will be given hereafter. 10. In the two sections of this statute which have been stated, the word seisin is used generally and indefinitely. But it has been resolved, that as to a writ of right, it shall be intended of an actual seisin; and as to avowries, it shall extend to a seisin in law, as well as to a seisin in fact. Formedon. 11. By the statute 21 Ja. I. c. 16. § 1. it is enacted, As to Writs of "That all writs of formedon in descender, formedon in remainder, and formedon in reverter, of any manors, lands, tenements, or other hereditaments whatsoever, at any time thereafter to be sued or brought, by occasion or means of any title or cause thereafter happening, shall be sued or taken within 20 years next after the title and cause of action first descended or fallen; and at no time after the said 20 years. 12. It has never been determined whether, under this statute, a person claiming an estate tail by descent, is barred by the neglect of the preceding person entitled to the estate tail, in not making an entry or bringing a writ of formedon, within 20 years from the time his title accrued. It may be contended that he is not barred, because the issue in tail do not take in the character of heir to their immediate predecessor, but as issue of the Tit. 29. c. 5. body of the first donee, and described as such in the original gift of the estate tail; and are therefore not affected by any act of their ancestors. That where $5. 1 Inst. 15 b. 3 Rep. 41 b. 1P. Wms. 721. a person becomes entitled to an estate tail, as son, 2 Ves. 634. nephew, or cousin to the person last seised of it; a new title and cause of action first descends to him, as issue of the original donee, and so he is within the letter of the statute; and has a new period of 20 years to bring his formedon. That although a tenant in tail may bar his issue by fine, in consequence of the statutes made for that Tit. 35.36. purpose, and by a common recovery, on account of the supposed recompence in value; yet that if he does not avail himself of those modes of barring his estate, VOL. III. I i it is still within the statute De Donis; and he cannot by any positive act of his, nor by his laches, destroy the rights of those who become entitled to it after his death. 13. The general opinion however is, that in consequence of the words first descended, if a person entitled to an estate tail neglects to bring his writ of formedon within 20 years after his title first descends, he and also his issue will be barred. For if the issue brings a formedon, it may be answered that the title first descended to his predecessor upwards of 20 years before. This construction is confirmed by the opinion of the majority of the Judges in the case of Stowell v. Plowd. 374. Zouch, in which two of the Judges said, that if a tenant in tail was disseised, and the disseisor levied a fine, and five years passed, and afterwards the tenant in tail died, the issue in tail should have a new period of five years to make his claim; for a new right came to every one of them, per formam doni. But this opinion was utterly disallowed by the Chief Justices Dyer and Catline, who said that the word first, which ought to be added to the word descend, would not suffer every descent to have five years. Now the Tit. 35. c. 11. words of the statute of fines, 4 Hen. VII. upon which the above opinion of the majority of the Judges was founded, are nearly similar to those of the stat. 21 Ja. I.; and therefore it may be fairly presumed, that the Judges would adopt this reasoning, and give the same effect to the words first descended, in the stat 21 Ja. I., as in the statute of fines. 14. The word fallen in this statute is clearly applicable to remainders and reversions. And it has always been held, that writs of formedon in remainder and reverter, may be brought at any time within 20 |