253 New Rules of Practice and Pleading. under the general authority which the judges possess for regulating the proceedings in their own courts. These rules have completely remodeled the whole course of practice, and assimilated that of the different courts; the process in each court had been made uniform by one of the statutes above referred to. These new rules have, according to the concurrent testimony of all those who are competent to form a judgment on the subject, vastly lessened the expense, and simplified and accelerated all the proceedings in an action. But though useless and inconvenient forms have been swept away, and some abuses rectified, the system remains the same as on its original construction. All the rules of any importance have been preserved in their full vigor, and some of them are more distinctly developed than formerly, and more generally and consistently applied (a). Though a summons is substituted for an original writ, equal strictness is observed to compel adherence to form as was applied to the formula of the Romans, and the original writ of the Anglo-Normans (b); and as has already been partially noticed, the rules of pleading are as rigidly enforced as at any previous period. It may here be observed, that no help is given by the Court of Chancery to those who have suffered loss occasioned by mere mispleading at law. But the liberal exercise by the judges of their inherent powers, and those given to them by the late statutes, to cause pleadings to be amended, even at the trial of the cause (c), prevents much of the injustice which might otherwise result in particular cases from the strict enforcement of the rules of pleading. The Court of Chancery, in the construction of its ordinary course of pleading, rejected the strict rules, which have been the subject of our consideration, and established a system of its own. The substantial ends of justice could not otherwise have been attained; but this *subject will be fully entered into in the next division of this work. [*254] I will only here observe, that we have found that, after the abolition of formula, suits were made to endure beyond the life of man (d); the Court of Chancery, and the courts in Scotland (where proceedings by writs and formal pleadings have also been abolished) have not escaped from a similar imputation. There are some descriptions of suits, such, for instance, as are instituted to secure the enjoyment of property to successive claimants, which must, from their nature, so endure. Still, our own experience as regards the Court of Chancery, I allude particularly to the proceedings in the Masters' offices, has shown that where forms and strict rules of practice are relaxed or abandoned, a continued superintendence, to prevent the evils of uncertainty and delay, is a matter of absolute necessity. (a) See Mr. Serj. Stephen's Preface. (c) See Stephen on Pleading, p. 81. Statutes for Limitation of Actions—3 & 4 Will. IV. c. 47. *255 *CHAPTER X. LIMITATION OF ACTIONS AND PRESCRIPTION. Early Statutes for Limiting the Time within which Actions might be brought.-Statutes relating to Real Actions-Modern Statute, 3 and 4 Will. IV. c. 27. Statutes relating to Actions not comprised within the description of Real.-Stat. 21 Jac. I. c. 16; 4 Ann. c. 16; 9 Geo. IV. c. 14; 3 & 4 Will. IV. c. 42. The Stat. 2 & 3 Will. IV. c. 71, for regulating the Title by Prescription, The Stat. 2 & 3 Will. IV. c. 100, Act relating to Moduses, and Exemptions from Payment of Tithes. It remains shortly to consider the Limitations of Actions according to the law of England; and the subject of Prescription. Statutes were passed for limiting the time within which actions should be brought, at an early period of our history (a). The object of the 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, and to save persons from the danger of not being able to sustain or to defend their rights by the evidences of their title having been lost by the casualties which must occur in the lapse of time (b). Besides which, general policy requires for the sake of mankind at large, that the person who has long enjoyed, and who has the credit attributed to long enjoyment, should not be lightly disturbed (c). We will first consider the doctrine of limitation as it affects legal claims to real property. The Statutes of Limitation which were in force at the commencement of the last reign, in relation to real actions, were the 32 Hen. VIII. c. 2, and the stat. 21 Jac. I. c. 16. By the first it was provided, that where, in any writ of right or 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 be within sixty years, or in a [*256] possessory action within fifty years. By the latter statute 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 an entry into any lands or hereditaments, but within twenty years after his right should first accrue. This, in effect, limited the right to bring an ejectment to twenty years, as no ejectment can be brought unless where the lessor of the plaintiff is entitled to enter on the lands (e). The statute 3 & 4 Will. IV. c. 27, by which real actions were abolished, (a) The Statute of Merton, 20 Hen. III. c. 8, and of Westminst. 1, 3 Edw. I. c. 39, limited the time within which a writ of right could be brought. (b) 3 Bla. Comm. by Stephen, 544. (c) Lord Eldon, Hayes' Introd. i. 223. (d) Form de Don, the action by which the tenant in tail and those in remainder and reversion were entitled to recover an estate entailed. (e) 3 Bla. Comm. 307, Stephen's ed. 546. The stat of Hen. VIII. did not apply to advowsons, and the claims of the Crown were the subject of a particular statute, 9 Geo. III. c. 16, which is still in force, ibid. 547. 256 Limitation of Actions as to Realty-Of other Actions. introduced some important amendments (a), founded on the report of the Real Property Commissioners (who were appointed in the preceding reign in consequence of the speech on the state of the law which was delivered by Lord Brougham, in 1828, before referred to), in regard to the limitation of actions for the recovery of real property. The provisions of this statute proceed upon the general principle that twenty years is an allowance of time reasonably sufficient, in every case, for the recovery of a person's rights, provided the claimant be a merely private person, and that he labor under no disability to assert his pretensions. The statute above referred to governs the law of limitation in all proceedings for the recovery of things real, whether in Law or in Equity (to which the Crown is not a party), and to all proceedings for the recovery of money secured or charged on the realty, or of any legacy (b). By section 2 of this stat. it is declared, that no person shall make an entry, or distress, or bring an action to recover any Land (which by the interpretation clause includes all corporeal hereditaments whatever, and tithes not belonging to a spiritual or eleemosynary corporation sole, and also to any share or interest in any of them, whether the same shall be a freehold or a copyhold interest, and whether freehold or copyhold, or held according to any other tenure) or Rent (which includes all heriots, services and suits for which distress may be made, and to all annuities and periodical sums of money charged upon or payable out of any land except moduses or compositions belonging to a spiritual or eleemosynary corporation sole) (c), but 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 some person through whom he claims; or, *if such right shall not have accrued (d), to any person through [*257] whom he 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 bringing the same. By § 14, an acknowledgment in writing, given to the person entitled, is declared to be equivalent to possession, or receipt of rent. Under this statute, possession destroys the adverse right, so as to effect what is equivalent, in many cases, to a transfer of the estate-it is not the remedy only that is barred (e); still the negative effect of the statute must not be confounded with the positive effect of a conveyance (f). All concurrent rights and possibilities of the claimant, in respect of future estates or interests, are barred, as well as his present right (g). If a person be under the disability of infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond sea, then he, or the person claiming through him, may, though twenty years have elapsed, make the entry or distress, or bring the action within ten years next after the person to whom the right has accrued shall have ceased to be under (a) See a general view of the changes effected by this statute, Hayes' Introd. i. 270. (b) 3 Bla. Comm. by Stephen, 548. (c) But it does not include rent reserved on leases for years, Shelford, 4th ed. p. 122. (d) Rules are necessarily introduced for determining under different circumstances when the right is to be considered as having accrued; they are illustrated by Mr. Hayes, Introd. i. p. 244. et seq. (e) § 34, Lord C. Sugden, Incorporated Society v. Richards, 1 Conn. & Laws. 84-85. See Sugd. V. & P. 10th ed. 351, and Shelford, 4th ed. p. 117, et seq. As to the effect of the stat. 21 James I. v. infra, p. 259. (f) Hayes' Introd. 269-270. (g) § 20. Limitation of Actions, 21 Jas. I. c. 16-9 Geo. III. c. 14. 257 any such disability, or have died, whichever shall first happen (a). But no such entry, distress, or action shall be made or brought in such case of disability, but within forty years next after the right has accrued, although the person to whom it has accrued may have remained under disability during the whole forty years, and although the term of ten years above mentioned shall not have expired (b). By § 18, no further time is to be allowed for a succession of disabilities (c). As regards advowsons, it is declared that no advowson shall be recovered but within three incumbencies, or sixty years (d); the extreme period for the recovery of an advowson being limited to one hundred years (e). Next, as to the limitation of actions in regard to matters not comprised under the description of Real. *Such actions are chiefly governed by the statute 21 Jas. I. c. 16, by which it is enacted, in substance, that all actions of tres- [*258] pass for injuries to the person, or to land, or personal property (except those hereafter particularized), detinue, trover, replevin, account (except upon accounts between merchants), trespass on the case (except for verbal slander), or debt, or simple contract, or for arrears of rent, shall be limited to six years after the cause of action accrued; actions of trespass for assault, menace, battery, wounding, and imprisonment, to four years; and actions on the case for verbal slander, to two years. Persons under the disabilities of infancy, or coverture, or of unsoundness of mind, or imprisonment, or being beyond the seas at the time when the cause of action accrued, are allowed to sue within the same period, after the removal of the disability, as is allowed to persons not under any such disability; and by the 4 Anne, c. 16, § 19, if any person liable to be sued shall, at the time when the cause of action accrued, be beyond the seas, a similar extension of time for bringing the action shall in that case also be permitted (ƒ). By § 4, after reversal of judgment for the plaintiff, in error, or arrest of judgment, or reversal of outlawry, the plaintiff, his heirs, executors, or administrators, may commence a new action within a year. By the stat. 9 Geo. IV. c. 14, it is enacted, that in actions of debt, or on the case, grounded upon a simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the stat. 21 Jas. I. c. 16, unless such acknowledgment or promise be contained in some writing to be signed by the party to be chargeable thereby ; and that when there shall be two or more joint contractors, or joint executors, or administrators of any contractor, no such joint contractor, or joint executor or administrator shall be chargeable in respect only of the written acknowledgment of the other (g); but this enactment is not (a) 16. The old disability of imprisonment is omitted. (b) § 17. The cases of remainder men and reversioners are provided for in the 4th and 5th sections, and there are special provisions for other cases for which I must refer to the Act. (c) The reader may see the practical effect of the allowance for disabilities illustrated by examples, in Hayes' Introd. i. 241. (d) § 30. (e) § 33. See 3 Bla. Comm. 250. 258 Limitation of Actions, 3 & 4 Will. IV. c. 42—Prescription. to lessen or alter the effect of any payment of principal or interest made by any person whatever (a). By the statute 3 & 4 Will. IV. c. 42, s. 3 (b), it is enacted, that all *actions of debt for rent, or on any indenture of demise, or of [*259] covenant, or debt on any bond, or other specialty, and all proceedings on recognizance, shall be brought within twenty years after the cause of action or proceeding accrued ; and that all actions of debt upon an award (where the submission is not under seal), or for a copyhold fine, or money levied upon any writ of fieri facias, shall be brought within six years. The same protection is extended to persons under disability other than that of imprisonment, which is given by the stat. 21 James. I. (c). Acknowledgments by writing, signed by the party liable or his agent, or by part payment, or part satisfaction within twenty years, may be pleaded by way of replication, so as to avoid a plea of the statute (d). The stat. 3 & 4 Will. IV. c. 27, as before observed, bars the right, the Stat. 21 Jas. I. c. 16, bars the remedy only; a distinction which is material to be observed, in regard to acknowledgments given subsequently to the time limited for bringing the action: so, although a person cannot bring an action to recover a debt on a simple contract after the expiration of the six years, he may resort to any other legal means in his power to effectuate payment, and he will not be deprived of any lien which he may be able to put in force for the recovery of the debt (e). I propose here to introduce a more specific notice of the late Act, 2 & 3 Will. IV. c. 71, for shortening the time of prescription, though it has been already adverted to (ƒ). That Act recites that the expression "time immemorial," or "time whereof the memory of man runneth not to the contrary," was then by the law of England, in many cases, considered to include and denote. the whole period of time from the reign of Richard I., whereby the title to matters that had been long enjoyed was sometimes defeated, by showing the commencement of such enjoyment, which was in many cases productive of inconvenience and injustice;-it is therefore enacted (g), that no claim which may be lawfully made at common law, by custom, prescription, or grant, to any right of common (h), or other profit or (a) The fact of the payment of a sum by the defendant to the plaintiff is not sufficient to take the case out of the statute without some evidence to satisfy the jury, first that it was a payment of a debt; and next that it was not the discharge of a balance due, but a payment intended to be applied to the part discharge of the particular debt, Tippetts v. Heane, 1 Cr. M. & R. 252; 4 Tyrw. 772; the other modern cases on the subject may be seen, Harrison's Digest, vol. 2, p. 3775, et seq. (b) By the stat. 53 Geo. III. c. 5, actions for not setting out tithes must be commenced within six years from the time when the tithes became due, but the Act for the commutation of tithes has rendered any further notice of that Act unnecessary. (c) § 4. By sect. 7 it is declared, that no part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent being part of the dominions of her Majesty, shall be deemed to be beyond the seas within the meaning of that Act, or of the Act, 21 Jas. I. (d) § 5. In Mr. Stephen's edition of the Commentaries, p. 557-8, the statutes for the limitation of penal actions, and actions against justices of the peace are stated. (e) 3 Bla. Comm. by Stephen, 558, and Higgins v. Scott, 2 Barn. & Ad. 413, there referred to. (f) V. supra, p. 151. |