3 & 4 Will. 4, c. 27, s. 1.

"RENT."

Annuities:

charged on land.

Raising

annuity by distress or sale.

Annuities

not charged on land.

Compositions.

(4) Person through

whom another claims. Appointee.

tion of payment (10 Ves. 467). But mere length of time, short of fifty years, the period fixed by the stat. 32 Hen. 8, c. 2, and unaccompanied with other circumstances, was not of itself sufficient ground to presume a release or extinguishment of a quit rent (Eldridge v. Knott, Cowp. 214, cited 10 Ves. 467, 468).

(i) An annuity is a thing very distinct from a rent-charge, with which it is frequently confounded; a rent-charge being a burthen imposed upon and issuing out of lands, whereas an annuity is a yearly sum chargeable only upon the person of the grantor (2 Bl. Comm. 40). The material distinction between an annuity and a rent is, that the former is a charge on the personal estate only, and the latter on the real (Co. Litt. 2 a; 114 b, 20 a).

An annuity charged upon land is by this clause included in the word "rent" as used in the act (James v. Salter, 3 Bing. N. C. 544). So is an annuity charged on both real and personal estate (Dower v. Dower, 15 L. R. Ir. 275; Re Nugent, 19 L. R. Ir. 140). Six years' arrears only of such an annuity can be recovered under sect. 42, in proceedings other than an action on a specialty (Francis v. Grover, 5 Hare, 39; Re Nugent, 19 L. R. Ir. 140). Where such an annuity was secured by specialty, twenty years' arrears could formerly be recovered under the Civil Procedure Act, 1833, s. 3, in an action on the specialty (Strachan v. Thomas, 12 Ad. & El. 536). See now R. P. Lim. Act, 1874, s. 8, p. 211, post. A gross sum of money charged upon land, to be paid by yearly instalments, and secured by power of distress, is within R. P. Lim. Act, 1833, ss. 40 and 42 (Uppington v. Tarrant, 12 Ir. C. L. R. 262).

It has been decided, that a distress may be taken for arrears of a rentcharge created by will, although the testator does not in terms give a power to distrain, such power being a consequence drawn by law from the rent-charge (Rodham v. Berry, Watk. Conv. by Cov. 243, n. (a)). So in the case of annuities charged on land by wills containing no power of distress, the annuitant can distrain under 4 Geo. 2, c. 28, s. 5 (Buttery v. Robinson, 3 Bing. 392; Roper v. Roper, 3 Ch. D. 720); and a receiver will not be appointed (Sollory v. Leaver, 9 Eq. 22); except, perhaps, where the rents are not sufficient, or the annuity has been long in arrear (Kelsey v. Kelsey, 17 Eq. 500). In the case of an annuity created since 1881, see Conv. Act, 1881, s. 44, post. As to raising arrears by sale, see Re Tucker, T. v. T., 1893, 2 Ch. 323; Hambro v. Hambro, 1894, 2 Ch. 564; Blackburne v. Hope Edwards, 1901, 1 Ch. 419.

An annuity given by will and not charged upon land is within the provision as to legacies in sect. 40 (Ashwell's Will, Johns. 112). Lord St. Leonards seems to have been of opinion that such an annuity would be extinguished if no payment were made for twenty years (R. P. Stat. 138, 2nd ed.). But it has been held that the annuity would not be extinguished by non-payment for the statutory period (Dower v. Dower, 15 L. R. Ir. 275; Darb. & Bos. Stat. Lim. 171, 182, 2nd ed.). Such an annuity has been decided not to be within sect. 42 (Roch v. Callen, 6 Hare, 531). If such an annuity be secured by bond or covenant, the nonpayment of each instalment is a distinct breach, and time runs, under Civil Procedure Act, 1833, s. 3, against each as it becomes due (Amott v. Holden, 18 Q. B. 593).

66

(k) The compositions" excepted from the definition of rent were compositions real (per Lord Selborne, Irish Land Commission v. Grant, 10 App. Cas. 31).

(7) As to the meaning and operation of the words "issue in tail" in this clause, see Abergavenny v. Brace, L. R. 7 Ex. 152, post, p. 124.

(m) Whether the word "appointee" (in the definition of person through whom another claims) includes the case where the power of appointment is not in substance created by the appointor himself, quære (Re Devon Settled Estates, 1896, 2 Ch. 572; where Chitty, J., draws a further distinction between a general power and a special power).

c. 27, s. 1. Escheat.

(n) An escheat was in its nature feodal. A feud was the right which 3 & 4 Will. 4, the tenant had to enjoy lands, rendering to the lord the duties and services reserved to him by contract. After a grant made, a right remained in the lords, called a seigniory, consisting of services to be performed by the tenant, and a right to have the land returned on the expiration of the grant as a reversion, called an escheat (Burgess v. Wheate, 1 Eden, 191).

Escheat is founded on the principle that the blood of the person last seised in fee is by some means utterly extinct and gone; and since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence that the inheritance must fail (2 Inst. 64; Wright's Ten. 115). Escheat may happen from default of heirs, as where the tenant dies without any relations on the part of any of his ancestors, or where he dies without any relations on the part of thoso ancestors from whom the estate descended, or where, until the Inheritance Act, 1833, s. 9 (see post), he died without any relations of the whole blood. An escheat also arose from the corruption of the tenant's blood, consequent upon an attainder for treason or felony, by which he became incapable of inheriting, and of transmitting anything by heirship (see the Inheritance Act, 1833, s. 10, and note, post). On the subject of escheat, see 2 Bl. Comm. 241-257; Cruise's Dig. tit. XXX.; Harg. Co. Litt. 18 b, n. (2); Henchman v. A.-G. (2 Sim. & Stu. 498; 3 M. & K. 492); Intestates' Estates Act, 1884, s. 4; Re Hartly, 1899, P. 40; and the note to A.-G. v. Sands, Tudor, L. C. Conv., 4th ed. 211.

(5)

(0) The poor of a parish are a class of persons within the meaning of Persons. the word " person' in this section, in a case where the rents of property are applicable for the benefit of such poor (Magdalen College v. A.-G., 6 H. L. C. 189). The Att.-Gen., whether suing ex officio, or at the relation of others, is not a "person" having a right to bring an action or suit in equity to recover land within the meaning of this act; he is only part of the machinery by which the rights of others are sought to be enforced (Ib. ; see A.-G. v. Magdalen College, 18 Beav. 223; sect. 24, post). A statutory corporation was held to fall within the definition of " person" (Jones v. Withers, 74 L. T. 572). Where tenants holding leases under a parish vestry had occupied and enjoyed the soil of a lane for more than a century, it was held that the above statute vested the title in the churchwardens and overseers under 59 Geo. 3, c. 12, s. 17 (Haigh v. West, 1893, 2 Q. B. 19).

(6)

The king having the prerogative of not being included within the words Crown, when "person or persons, bodies politic or corporate," used in an act of parlia- bound by acts ment, whether affirmatively or negatively (11 Rep. 68), is not bound in of parliament. his public capacity by the general words of an act of parliament, unless named (7 Rep. 32; 11 Rep. 68; Plowd. 240; 1 Str. 516; 1 Show. 464; Show. P. C. 185; Hall v. Maule, 4 Ad. & Ell. 284; R. v. Wright, 1 Ad. & Ell. 434; Re Cuckfield Board, 19 Beav. 153, and the cases cited in the note thereto; Re Bevan, 14 W. R. 147; Re Henley, 9 Ch. Div. 481; see Perry v. Eames, 1891, 1 Ch. 668; Re Pratt, 55 L. T. 313; Dacre v. Patrickson, 1 Dr. & Sm. 191), except where an act of parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, when the king is bound, though not particularly named (Plowd. 136, 137; 11 Rep. 68 b; 5 Rep. 14; 7 Rep. 32; see Bac. Abr. Prerogative (E.)). But where a statute is general, and its effect would be to deprive the king of any prerogative, right, title, or interest, he is not bound unless specially named (11 Rep. 68), and was held not to be bound by the Statute of Limitations (Br. St. Lim. 67), or the statute of 13 Edward 1, st. 1, c. 5, which makes plenarty for six months a good plea in quare impedit (11 Rep. 68; Plowd. 244). It was said by Lord Romilly that the R. P. Lim. Act, 1833, does not affect suits by the Att.-Gen. to recover property belonging to the Crown (A.-G. v.

c. 27, s. 1.

3 & 4 Will. 4, Magdalen Coll., 18 Beav. 246); and in Rustomjee v. The Queen (1 Q. B. D. 491, 492) it was said that the Crown cannot be bound by the Statute of Limitations, which has relation only to actions between subject and subject. In the same case the statute was held not to apply to a petition of right. The Crown comes expressly within 2 & 3 Will. 4, c. 100, for shortening the time required in claims of modus or discharge from tithes. The Crown is also expressly within sects. 1 and 2 of Prescription Act, 1832, ante, pp. 1, 4; but is not within sect. 3 (Perry v. Eames, 1891, 1 Ch. 658; Wheaton v. Maple, 1893, 3 Ch. 64); or sect. 1 of the Land Transfer Act, 1897 (Re Hartley, 1899, P. 40).

Statutes of limitation as to rights of Crown to

realty.

c. 16. Nullum

Tempus Act.

By stat. 21 Jac. 1, c. 2, the king was disabled from claiming any manors, lands, or hereditaments, except liberties and franchises, under a title accrued sixty years before the then session of parliament, unless within that time there had been a possession under such title; but this provision becoming daily more ineffectual by lapse of time, a permanent limitation 21 Jac. 1, c. 2. was introduced (see Co. Litt. 119 a, n. (1); 3 Inst. 188). And by the 9 Geo. 3, Crown Suits Act, 1769, it is provided that the king shall not sue, &c., any persons, &c., for any lands, &c. (except liberties and franchises) on any title which has not first accrued within sixty years before the commencement of such suit, unless he has been answered the rents within that time, or they have been in charge, or stood insuper of record; and the subject shall quietly enjoy against the king, and all claiming under him, by patent, &c. This statute was extended to Ireland by 48 Geo. 3, c. 47, as to which, see Tuthill v. Rogers, 6 Ir. Eq. R. 429; 1 J. & Lat. 36. It applies to N. S. Wales (4.-G. for N. S. Wales v. Love, 1898, A. C. 679), where the provision as to rents being in charge is explained; and see 3 Inst. 189). In the case of tithes where none had been received, it was held, that the accounts of the auditors of the revenue, in which the tithes had been entered and returned nil, were sufficient proof that they had been "duly in charge" (4.-G. v. Eardley, 8 Price, 73).

24 & 25 Vict. c. 62.

Adverse possession against the Crown.

21 Jac. 1, c. 14.

Practice in
Crown suits.

By the Crown Suits Act, 1861, s. 1, the Crown shall not sue for real property (other than liberties or franchises) of which the profits have been taken by the space of sixty years, by reason only that the rents have been in charge to the Crown, or stood insuper upon record within the said space of sixty years. The Crown shall not be deemed to have been answered the rents of real property by reason only of the same real property having been parcel of any manor of which the rents shall have been answered to the Crown, or of any manor which shall have been duly in charge to the Crown or stood insuper of record (s. 3). See as to Ireland, Nullum Tempus (Ireland) Act, 1876; see A.-G. British Honduras v. Bristowe, 6 App. Cas. 143. These acts do not apply in case of a quit rent (Re Maxwell, 28 L. R. Ir. 356).

Where an entire manor has been in charge to the Crown within sixty years, acts done in different parts of it by different persons, such as the erection and occupation of lime-kilns and cottages, and the sale of lime produced, do not displace the title of the Crown to the district, although continued for sixty years (Doe v. Roberts, 13 M. & W. 520).

The Crown Suits Act, 1769, does not give a title, it only takes away the right of suit of the Crown, or those claiming from the Crown, against such as have held an adverse possession against it for sixty years (Goodtitle v. Baldwin, 11 East, 495). Adverse possession of Crown lands for less than sixty years was not sufficient to support the plaintiff's title in an action of ejectment against a stranger (Ib.).

By stat. 21 Jac. 1, c. 14, s. 1, it was in effect provided that a person who had been in adverse possession of Crown lands for twenty years might, on information of intrusion, plead the general issue, and might retain possession until trial. Although the king can never be put out of possession in point of law by the wrongful entry of a subject, yet there may be an adverse possession in fuct against the Crown. After such an adverse possession for twenty years, the Crown could only recover by information of intrusion, and ejectment would not lie at the suit of the grantee of the Crown (Doe v. Morris, 2 Bing. N. R. 189). See further as to

intrusion, 28 & 29 Vict. c. 104, s. 31 et seq.; 2 Chitty's Statutes, 4th ed. 3 & 4 Will. 4, 619 et seq.

The title of the Crown may be tried in the information of intrusion itself, and need not be first found by inquest of office, the only effect of the statute 21 Jac. 1, c. 14, being to throw the onus of proving title in the first instance, in such a case, on the Crown (A.-G. v. Parsons, 2 M. & W. 23). As to inquests of office, see now 28 & 29 Vict. c. 104, s. 52. See, as to evidence in Crown suits, Doe v. Roberts, 13 M. & W. 520.

c. 27, s. 1.

Although the Statute of Limitations does not bind the Crown, yet Chose in where the claim of the Crown is only a derivative right, it must stand in action vested the same situation as its principal. Therefore, the statute may be pleaded in the Crown. to a scire facias issued by the Crown against the drawer of a bill of exchange, which was barred in the hands of the Crown debtor (R. v. Morrall, 6 Price, 24). But where a right has vested in the Crown before the statute has run against the former owner, the rights of the Crown are not barred or affected by the statute, as the Crown is not within its operation (Lambert v. Tayler, 4 B. & C. 138). See Tayler v. A.-G., 10 Sim. 413, as to course of proceeding by a subject to enforce a claim of property against the Crown; see also Re Robson, 2 Phil. 64; Re De Bode, Ib. 85. And as to petitions of right and the orders thereon, see Petition of Right Act, 1860; Seton, 6th ed. 397.

With respect to the personal estate of a deceased, proceedings on the part of the Crown cannot now be instituted, nor can a petition of right be presented, except within the same time, and subject to the same rules of law and equity, as in the case of an action by or against a subject (Intestates' Estates Act, 1884, s. 3).

Under the Customs Act, 1889, ss. 12 and 14, the claim of the Crown to Claim of legacy and succession duty in specified cases cannot be enforced after Crown to specified periods. These sections have been made applicable to estate duties. duty by the Finance Act, 1894, s. 8 (2).

The Statutes of Limitation which affect the rights of the Duke of Corn- Statutes of wall are 7 & 8 Vict. c. 105, ss. 71-88; 23 & 24 Vict. c. 53; and Crown Limitation as Suits Act, 1861; as to which, see Darb. & Bos. Stat. Lim. 523, 2nd ed.; to rights of Duke of Brown's Law of Limitation, 251, 415. Cornwall.

So

So

from the

But though the Crown was not bound by the Statute of Limitations, yet a grant from it may be presumed from great length of possession, not Presumption because the court really thinks a grant has been made, but it presumes of grants the fact for the purpose and from a principle of quieting the possession (Hull v. Horner, Cowp. 102, 215). Thus grants from the Crown Crown. of markets and the like, after an uninterrupted enjoyment of twenty years have been presumed (Goodtitle v. Baldwin, 11 East, 490; Holcroft v. Heel, 1 Bos. & Pull. 400; Campbell v. Wilson, 3 East, 291). a grant by the Crown of a several fishery in tidal waters was presumed (Goodman v. Saltash, 7 App. Cas. 633), and of a manor (Merttens v. Hill, 1901, 1 Ch. 851); and see A.-G. v. Wright, 1897, 2 Q. B. 318. an enfranchisement of a copyhold may be presumed against the Crown (Roe v. Ireland, 11 East, 280). So where the title of a family to an advowson was evidenced by deeds for nearly 140 years, and there had been three presentations by them and none by the Crown, a grant from the Crown might be presumed (Gibson v. Clark, 1 Jac. & W. 159; see 3 T. R. 158). Letters patent from the Crown have been presumed (Picking v. Stamford, 2 Ves. jun. 282). A grant from the Crown of undefined shares in land will not be held void for uncertainty after long modern possession, for a supplementary grant may be presumed (Des Barres v. Shey, 29 L. T. 592). Enjoyment of property for 110 years by a parish, although no conveyance appeared in evidence, was held conclusive proof of ownership against the Crown (A.-G. v. Hotham, 1 T. & R. 210; see Haigh v. West, 1893, 2 Q. B. 19). An objection to a title that two fee-farm rents, created by letters patent by James I., were not shown to have been extinguished, was overruled, it being proved that no claim had been made by the Crown of the rent from the year 1706, and no proof of any previous claim (Simpson v. Gutteridge, 1 Madd. 609; see Flower v.

No land or rent to be

recovered, but within twenty

Hartopp, 12 L. J. Ch. 307). A lost surrender to the Crown of one of two differing charters was presumed in A.-G. v. Simpson, 1901, 2 Ch. 716. In a case where Charles I. had granted the soil between high and low-water marks, but the Crown remained in possession for 150 years after the grant, this created a presumption against the grant (Parmeter v. A.-G., 1 Dow, 316). A grant from the Crown will not be presumed where it would have been against a statutory provision of a public nature (Goodtitle v. Baldwin, 11 East, 495). Nor where the enjoyment has been, not against the Crown itself, but against a lessee from the Crown (Wheaton v. Maple, 1893, 3 Ch. 62; see Ib. 56 as to modern enjoyment against the Crown).

Where port duties are claimed under a grant from the Crown, which appears from the evidence to be inrolled, but which is not produced, the jury ought not to be directed to presume such grant upon mere evidence of usage (Brune v. Thompson, 4 Q. B. 543; as to the presumption that a claim for port duties had a legal origin, see Foreman v. Whitstable, L. R. 4 H. L. 266, and cases there cited). There seems to be no instance of presuming inrolment of a deed which was made essential by statute (Doe v. Waterton, 3 B. & Ald. 149, 151; Wright v. Smythies, 10 East, 409). It might be otherwise if some foundation were laid for raising a presumption by showing that there was a chasm in the records corresponding with the date of the supposed conveyance (Allen v. Walker, 1 Jac. & W. 619). The registry of a deed of lands in a register county will not be presumed (Doe v. Hirst, 11 Price, 475). But where the usage of paying tithe was shown, an inrolment of a decree directing such payment was presumed (Macdougall v. Purrier, 4 Bligh, N. S. 433; see A.-G. v. Moor, 20 Beav. 119; Haigh v. West, 1893, 2 Q. B. 31).

After long possession the court will even presume an act of parliament in order to protect a right (A.-G. v. Ewelme Hospital, 17 Beav. 366), but not the passing of an act of parliament within the last 250 years, on an important subject of the most general interest, of which no vestige can be found (R. v. Exeter, 12 Ad. & Ell. 532, 533). Jessel, M. R., refused to presume an act of parliament as an origin for an alleged right (Chilton v. London, 7 Ch. D. 735). See Neaverson v. Peterborough Council, 1902, 1 Ch. 574.

2. Period of Limitation fixed, and when Right first accrues.

2. After the thirty-first day of December, one thousand eight hundred and thirty-three, no person shall make an entry or distress, or bring an action to recover any land or rent, but years after the within twenty years next after the time at which the right to right of action make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he whose estate claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the

accrued to the

claimant, or

some person

he claims.

37 & 38 Vict. c. 57.

same.

(1) Effect of sect. 2...123.

(2) Old law and adverse possession...124.

(3) Nature of possession necessary to give title under sect. 2...127.

From the 1st January, 1879, sect. 1 of R. P. Lim. Act, 1874 (post, p. 184), has, by sect. 9 of the same act, been substituted for sect. 2 of R. P. Lim. Act, 1833. Sect. 1 of R. P. Lim. Act, 1874, fixes the period of limitation for the recovery of land or rent at twelve years, and also expressly includes " suits," but is in other respects similar to sect. 2 of