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dicatur, cum fungatur vice minoris, non magis quam minori fi cuftos clameum non appofuerit.

Where an ecclefiaftical perfon neglects to bring his Plowd. 358. action within the time required, he himself will be barred, but not his fucceffor.

§ 42. There is no limitation as to the time within Advowfons. which any actions touching advowfons are to be brought; at least, none later than the time of Rich. 1.: for, by the ftatute 1 Mary fect. 4. it is enacted, that the ftatute 32 Hen. 8. fhall not extend to a writ of right of advowson, quare impedit, darrein prefentment, &c.; and, by the ftatute 7 Ann c. 18. it is enacted, that no ufurpation fhall difplace the estate of the patron, and that he may prefent on the next avoidance, as though there had not been any ufurpation; which pro- 1 Inft. 115 a. vifion, in effect, takes away all limitations of fuits about the right of patronage.

§ 43. Tithes are not within the ftatutes of limitation; and, in a cafe where a bill was filed in the Court of Exchequer for tithes, the court would not allow a plea of the ftatute of limitations: and Lord Chief Baron Gilbert said the reason was, that tithes were not of the nature of thofe demands, which were intended to be barred by that statute.

n. 6.

Quilter v.

Muffendine,

Gilb. R. 228.

S 44. Where a rent is created by deed or grant, of Rents created which the commencement can be fhewn, it is not with

in the ftatutes of limitation.

VOL. III.

$ 45. Where

by Deed.
1 Inft. 115 a.

Fofter's Cafe, 8 Rep. 64.

r Inft. 115 4. #.5.

§ 45. Where A., by deed indented, made a feoffment in fee to B. and his heirs, rendering 10 s. per annum rent to A. and his heirs; of which rent, the heirs of A. had not been feifed for forty years: it was determined, that they might diftrain for it. For the ftatute 32 Hen. 8. Hen. 8. was intended to operate only where the avowant was driven to allege a feifin by force of fome old ftatute of limitation; and that was, when the feifin was material, and of fuch force, that it fhould not be avoided in avowry, although it were by encroachment, as between the lord and tenant. But, in the cafe of refervation or grant of a rent, there the deed is the title, and the beginning thereof appears : no encroachment, in that cafe, fhall hurt, nor is any feifin material. And this conftruction ftands with the

words of the act.

66

"No man fhall make avowry, and allege feifin," &c.; by which it appears, that that branch extends only where the avowant ought to allege feifin; but, where no feifin is requifite, it is out of the words and intent of the act: for it intends to limit a time for the feifin; which feifin is required by law to be alleged, and not to compel any one to allege seisin, where feifin is not neceffary before.

§ 46. The exemption of rent, from the ftatute 32 Hen. 8. fhould be understood with this qualification, that the certainty of the rent fhould appear in the deed; becaufe, otherwife, the quantum of the rent is no more ascertained by the deed than if there was not one exifting. If, therefore, the rent is created by reference to fomething out of the deed, as by referving fuch rent as the perfon referving pays over, without expreffing

expreffing what that is; and the latter, not having commenced by deed, is one, of which feifin is the proper proof: in fuch a cafe, feifin is equally neceffary to both rents, and, confequently, both ought to be equally deemed within the ftatute 32 Hen. 8.

ftatute

§ 47. Fealty is within the letter of the 32 Hen. 8.; yet Lord Coke fays, that, and all other accidental fervices, as heriot fervice, or to cover the lord's hall, and the like, (for that they may not happen within the times limited by that act), are, by conftruction, out of the meaning of it.

§ 48. Bond-debts, and other fpecialties, are not within the ftatutes of limitation; but, where an action

money

does not appear

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Legh,

1 Term R.

is brought on a bond, and the
to have been demanded, or intereft, within twenty years, 270.
this amounts to a prefumption that it has been paid.

§ 49. The ftatute 32 Hen. 8. contains a faving for $ infants, married women, perfons in prifon, or out of the realm, provided they bring their writs or actions, or make their avowries, within fix years after the removal of their difablities.

S 50. By the ftatute 21 Jac. 1. c. 2. it is further enacted, "That, if any perfon, &c. that is or fhall be "entitled to fuch a writ or writs, or that hath or fhall "have fuch right or title of entry, be or fhall be, at "the time of the faid right or title firft defcended, "accrued, or fallen, within the age of twenty-one "years, feme covert, non compos mentis, imprifoned,

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Doe v. Jones, 4 Term Rep.

3co.

Tit. 35.

King v.
Walker,
1 Black. R.
286.

Where Equi-
ty adopts the

Doctrine of
Limitations,

1 Ld. Raym.

935.
2 Burr. 961.
Treat. of Eq.
B. 3. c. 1. f. 7.

"or beyond the feas, fuch perfon, &c. and his and "their heir and heirs, fhall or may, notwithstanding "the faid twenty years be expired, bring his action or "make his entry, as he might have done before this "act, fo as fuch perfon, &c. or his and their heir "and heirs fhall, within ten years next after his and "their full age, discoverture, coming of found mind, "enlargement out of prifon, or coming into this "realm, or death, take benefit of and fue for the "fame, and at no time after the faid ten years."

S51. Upon the conftruction of this claufe it has been held, that the difabilities here mentioned, must exift at the time when the right first accrues: for, if the time once begins to run, no fubfequent difability will avail.

$ 52. In a modern cafe, the Court of King's Bench appears to have been of opinion, that the ftatute of limitations extends to perfons in Scotland: for the statutes 21 Jac. 1. and 5 Ann, were both exprefs, that the party to be excufed muft be beyond feas. Before Kingdom the Union, England was and of itfelf; fince the Union, Scotland is made a part of it; and, therefore, a perfon in Scotland is not out of the realm.

§ 53. The ftatutes of limitations only fix certain periods, within which different real and perfonal actions may be brought in the courts of common law, and, therefore, do not extend to fuits in equity. But, the limitation of fuits being founded in public convenience,

and

and attended with fo much utility, the courts of equity have adopted the principles eftablished by thefe ftatutes, as pofitive rules for their own conduct.

§ 54. It has therefore been long fettled, that, where a mortgagee has been in poffeffion for twenty years, that circumstance may be pleaded to a bill to redeem; because, in that cafe, the Court of Chancery confiders the right of redemption to have been abandoned. But Lord Hardwicke fays, that infifting on length of time against a bill to redeem, is only a kind of equitable bar, and taken by way of analogy to the ftatute of limitations.

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Llewellin v.

Mackworth, 15 Vin. Ab. 125. pl. 1.

§ 55. There are, however, feveral cafes, in which courts of equity have refused to adopt the principles of the ftatute of limitations. Thus, it is generally faid, that a truft is not within the ftatute of limitations; but this propofition is only applicable to cafes, arifing 2 P. W. 145. between the ceftuique truft and his truftee, where there is no adverfe poffeffion. And Lord Hardwicke fays, this rule holds only as between ceftuique truft and his trustee on the one fide, and ftrangers on the other: for that would be to make the ftatute of no force at all; because there is hardly any eftate of confequence without fuch truft, and fo the act would never take place. Therefore, when a ceftuique truft and his truftee are both out of poffeffion, for the time limited, the party in poffeffion has a good bar against both of them.

$ 56. Where

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