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become entitled, upon the happening of any future event, to any honour, title, dignity or office; or to any estate or interest in any property real or personal; the right or claim to which cannot by him be brought to trial before the happening of such event,-shall be entitled to take proceedings in Chancery, to perpetuate any testimony which may be material for establishing such claim or right (d).

[These are some of the matters wherein jurisdiction is at present exercised in our courts of equity: which jurisdiction differs, we see, very considerably from the notions entertained by strangers, and even by those courts themselves before they arrived at maturity; as appears from the principles laid down, and the jealousies entertained of their abuse, by our early juridical writers cited in a former page (e); and which were received and handed down by subsequent compilers, without attending to those gradual accessions and derelictions by which, in the course of a century, this mighty river had imperceptibly shifted its channel. Lambard, in particular, in the reign of Queen Elizabeth, lays it down (f), that "equity should "not be appealed unto but only in rare and extraordinary "matters; and that a good chancellor will not arrogate "authority in every complaint that shall be brought "before him, upon whatsoever suggestion: and thereby "both overthrow the authority of the courts of common “law, and bring upon men such a confusion and un"certainty as hardly any man should know how or how "long to hold his own assured to him." And certainly, if a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every par

(d) A jurisdiction of a somewhat similar, though more limited, kind has been conferred on the New Divorce Court in reference to the questions of legitimacy and nationality.

(See 21 & 22 Vict. c. 93; 22 & 23
Vict. c. 61, s. 7.)

(e) Vide sup. p. 449.
(ƒ) Archeion, 80, 81.

[ticular case, the inconvenience that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible. Its powers would have become too arbitrary to have been endured in a country like this; which boasts of being governed in all respects by law, and not by will. But since the time when Lambard wrote, a set of great and eminent lawyers who have successively held the Great Seal, have by degrees erected the system of relief administered by a court of equity into a regular science; which cannot be attained without study and experience, any more than the science of law: but from which, when understood, it may be known what remedy a suitor is entitled to expect, and by what proceeding, as readily and with as much precision, in a court of equity, as in a court of law.

It would carry us beyond the bounds of our present purpose to go further into this matter. It seemed desirable to go so far; because strangers are apt to be confounded by nominal distinctions, and the loose unguarded expressions to be met with in the best of our writers. It hath also afforded us an opportunity to vindicate, on the one hand, "law" from being that harsh and illiberal rule, which many are too ready to suppose it; and, on the other, "equity" from being the result of mere arbitrary opinion, or an exercise of dictatorial power, which rides over the law of the land, and corrects, amends and controls it by the loose and fluctuating dictates of the conscience of a single judge.]

VOL. III.

H H

CHAPTER IX.

OF THE LIMITATION OF ACTIONS.

We have now considered the various injuries between one subject of the realm and another, of which the law takes notice; and the general nature of the remedies provided by the courts. When any of these injuries have been committed, it follows that a right of redress has arisen; but after ascertaining this, there still remains another point for consideration before it can be determined that such right still subsists, viz. how long it has existed; for there is established, by certain statutes called the Statutes of Limitation, a certain period, after which the remedy by action is barred by the mere effect of lapse of time.

The use of these Statutes of Limitation is to preserve the peace of the kingdom; and to prevent those innumerable perjuries which might ensue, if a man were allowed to bring an action for an injury committed at any distance of time. Upon these accounts our law therefore holds, that interest reipublicæ, ut sit finis litium; just as by the laws of Athens, actions were prohibited in cases where the injury was committed a certain period before the complaint was made (a). Nor are these the only reasons on which the bar by lapse of time is founded; for if the plaintiff

(a) 3 Bl. Com. 308. So also under the imperial civil law various periods of limitation were assigned, and by a constitution of Honorius and Theodosius, actions could not be brought more than thirty or in some cases

forty years after the right accrued. By the earlier Roman law there was no limitation of such actions as arose out of the jus civile, though it was otherwise as to most of the Prætorian actions.

were permitted to bring a claim forward at any period, however remote, there would be danger of its being delayed until the defendant had, by some casualty, been deprived of the documentary or other evidence by which it might once have been successfully encountered; and the delay might even be practised with the fraudulent design of exposing him to this disadvantage. Besides which, it is to be considered, that great hardship always attaches to the case of a party, who, after a long possession,-not originating in any fraud or other misconduct of his own,—finds himself unexpectedly liable to eviction; while, on the other hand, a supine claimant is entitled to no favour or protection from the law: the maxim being, that vigilantibus, non dormientibus, jura subveniunt.

The course of legislation upon the subject under consideration, has been such as to lead naturally to its division into such statutory limitations as have reference to land and the rights issuing thereout, and such as have reference strictly to things personal. The first of these two branches shall be now discussed ::

I. Of limitations as to entry or distress on land, and proceedings for the recovery of the realty, or of rights issuing thereout.

It was in reference to real actions, while still the only forms of action for recovery of the realty, that the law of limitations was first established. And, originally, such actions were limited from some particular event, or fixed era. Thus, by the antient law in the time of Henry the second, the demandant, in a writ of right, could not claim upon any seisin earlier than the reign of Henry the first, nor, by the Statute of Merton, (20 Hen. III. c. 8,) earlier than the reign of Henry the second; nor by Statute of Westminster the first, (3 Edw. I. c. 39,) earlier than that of Richard the first (b). And the same species

(b) Sce 3 Bl. Com. p. 196, and Com. Dig. Temps (G).

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of limitation, though from more recent dates, was, by the same statutes, from time to time appointed for many other kinds of real action. But these dates were allowed afterwards to continue so long unaltered, that in process of time they became, in effect, no limitation at all; which gave rise at length to the Statute of Limitation, 32 Hen. VIII. c. 2. This Act took a different course, and limited real actions not from any fixed date or event, but according to a fixed interval of antecedent time; and provided, that where, in any writ of right or any action possessory, the demandant claimed upon his own seisin, it must be a seisin within thirty years back; where on the seisin of his ancestor, it must (in a writ of right) be a seisin within sixty, or (in a possessory action) within fifty years (c). And afterwards, by 21 Jac. I. c. 16, s. 1, it was enacted, that all writs of formedon (d) should be brought within twenty years after the cause of action first fallen; and also that no person should make entry into any lands or hereditaments, but within twenty years after his right should first accrue; from which last enactment it followed, that the same period of twenty years also became the limitation, (as it still is,) in every action of ejectment, for no ejectment can be brought unless where the plaintiff is entitled to enter on the lands (e).

And thus stood the doctrine of limitation in general, so far as relates to the recovery of real property, during the whole of the long period that elapsed from the reign of Henry the eighth to that of William the fourth; upon which branch of the law, however, as it stood during

(c) 3 Bl. Com. 189. This statute extended to rents, suits, and services, as well as other hereditaments; but only to those which were customary or prescriptive, and not to those created by deed, or reserved on a particular estate. (Ibid.) Nor did it extend to services of a casual kind, such as by possibility might

not become due within the period of limitation, such as fealty. (Com. Dig. Temps (G), 9.)

(d) As to formedon in descender, see Rimington v. Cannon, 22 L. J. (C. P.) 153.

(e) Christ. Bl. Com. vol. iii. p. 204, n. (2), p. 206.

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