STATUTES.

PRESCRIPTION.

2 & 3 WILL. IV. CAP. 71.

[Royal Assent, 1st August, 1832.]

not to be defeated

An Act for shortening the Time of Prescription in certain Cases. WHEREAS the expression "time immemorial, or time whereof the memory of man runneth not to the contrary," is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice; for remedy thereof be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, That no claim which may be lawfully made at the common law, Claims to right of by custom, prescription or grant, to any right of common or other common and other profit or benefit to be taken and enjoyed from or upon any land of profits à prendre, our sovereign lord the king, his heirs or successors, or any land being after thirty years parcel of the duchy of Lancaster or of the duchy of Cornwall, or of enjoyment by any ecclesiastical or lay person, or body corporate, except such matters showing the comand things as are herein specially provided for, and except tithes, rent and services, shall, where such right, profit or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of thirty years, be defeated or destroyed by showing only that such right, profit or benefit was first taken or enjoyed at any time prior to such period of thirty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit or after sixty years benefit shall have been so taken and enjoyed as aforesaid for the full enjoyment the period of sixty years, the right thereto shall be deemed absolute and right to be ab indefeasible, unless it shall appear that the same was taken and en- by consent or joyed by some consent or agreement expressly made or given for that agreement. purpose by deed or writing.

mencement:

solute, unless had

other easement,

the periods to be twenty years and forty years.

2. And be it further enacted, That no claim which may be lawfully In claims of made at the common law, by custom, prescription or grant, to any right of way or way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the king, his heirs or successors, or being parcel of the duchy of Lancaster, or of the duchy of Cornwall, or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any

Claim to the use of light enjoyed for twenty years indefeasible, unless shown to

have been by consent.

Before-mentioned periods to be deemed those

next before suits

for claims to which such periods relate.

In actions on the

may allege his right generally, as at present.

In pleas to trespass and other pleadings, where party used to allege his claim

time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.

3. And be it further enacted, That when the access and use of light to and for any dwelling-house, workshop or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

4. And be it further enacted, That each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and that no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made.

5. And be it further enacted, That in all actions upon the case and case the claimant other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient, and if the same shall be denied, all and every the matters in this act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation; and that in all pleadings to actions of trespass, and all other pleadings wherein before the passing of this act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement or other matter hereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.

from time imme morial, the period mentioned in this act may be alleged; and ex

ceptions or other matters to be replied to specially

6. And be it further enacted, That in the several cases mentioned in and provided for by this act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned

in this act as may be applicable to the case and to the nature of the claim.

7. Provided also, That the time during which any person other- Proviso for inwise capable of resisting any claim to any of the matters before men- fants, &c. tioned shall have been or shall be an infant, idiot, non compos mentis, feme covert or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be alsolute and indefeasible.

8. Provided always, and be it further enacted, That when any land or water upon, over or from which any such way or other convenient watercourse or use of water shall have been or shall be enjoyed or derived hath been or shall be held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of forty years, in case the claim shall within three years next after the end or sooner determination of such term be resisted by any person entitled to any reversion expectant on the determination thereof.

9. And be it further enacted, That this act shall not extent to Scot- Not to extend to land or Ireland.

Scotland or Ireland.

10. And be it further enacted, That this act shall commence and Commencement take effect on the first day of Michaelmas term now next ensuing.

of act.

11. And be it further enacted, That this act may be amended, Act may be altered or repealed during this present session of parliament.

amended.

MODUS DECIMANDI.

2 & 3 WILL. IV. CAP. 100.

[Royal Assent, 9th August, 1832.]

An Act for shortening the Time required in Claims of Modus Decimandi, or Exemption from or Discharge of Tithes.

WHEREAS the expense and inconvenience of suits instituted for the recovery of tithes may and ought to be prevented, by shortening the time required for the valid establishment of claims of a modus decimandi, or exemption from or discharge of tithes; be it therefore enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, That all prescriptions and claims of or for any modus decimandi, or of or to any exemption from or discharge of tithes, by composition real or

Proviso.

What compositions for tithes shall be considered valid.

otherwise, shall, in cases where the render of tithes in kind shall be hereafter demanded by our said lord the king, his heirs or successors, or by any Duke of Cornwall, or by any lay person, not being a corporation sole, or by any body corporate of many, whether temporal or spiritual, be sustained and be deemed good and valid in law, upon evidence showing, in cases of claim of a modus decimandi the payment or render of such modus, and in cases of claim to exemption or discharge showing the enjoyment of the land, without payment or render of tithes, money or other matter in lieu thereof, for the full period of thirty years next before the time of such demand, unless, in the case of claim of a modus decimandi, the actual payment or render of tithes in kind, or of money or other thing differing in amount, quality or quantity from the modus claimed, or, in case of claim to exemption or discharge, the render or payment of tithes, or of money or other matter in lieu thereof, shall be shown to have taken place at some time prior to such thirty years, or it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing; and if such proof in support of the claim shall be extended to the full period of sixty years next before the time of such demand, in such cases the claim shall be deemed absolute and indefeasible, unless it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing; and where the render of tithes in kind shall be demanded by any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital or other corporation sole, whether spiritual or temporal, then every such prescription or claim shall be valid and indefeasible, upon evidence showing such payment or render of modus made or enjoyment had, as is hereinbefore mentioned, applicable to the nature of the claim, for and during the whole time that two persons in succession shall have held the office or benefice, in respect whereof such render of tithes in kind shall be claimed, and for not less than three years after the appointment and institution or induction of a third person thereto : provided always, that if the whole time of the holding of such two persons shall be less than sixty years, then it shall be necessary to show such payment or render of modus made or enjoyment had (as the case may be), not only during the whole of such time, but also during such further number of years, either before or after such time, or partly before and partly after, as shall with such time be sufficient to make up the full period of sixty years, and also for and during the further period of three years after the appointment and institution or induction of a third person to the same office or benefice, unless it shall be proved that such payment or render of modus was made or enjoyment had by some consent or agreement expressly made or given for that purpose by deed or writing.

2. And be it further enacted, That every composition for tithes which hath been made or confirmed by the decree of any court of equity in England in a suit to which the ordinary, patron and incumbent were parties, and which hath not since been set aside, abandoned or departed from, shall be and the same is hereby confirmed and made valid in law; and that no modus, exemption or discharge