THE TIMES

Monday, Apr 19, 1847 (page 7, col F)

VICE-CHANCELLORS' COURTS, SATURDAY, APRIL 17.

(Before Sir J. WIGRAM.)

TOLSON V. DYKES.

The bill in this case was filed nearly 30 years ago.  It sought to establish a title to an estate in Cumberland, under a settlement in tail created in the year 1673.  The bill alleged that the last person who was in possession under the entail was Henry TOLSON, who died in 1763; that upon his death the person next entitled as tenant in tail was General TOLSON, who was then in India, and died in 1811; and that the estate then devolved upon his nephew Richard, Henry TOLSON, the present plaintiff.

Mr. Serjeant MANNING and Mr. ROGERS appeared for the plaintiff.  The plaintiff had some years ago brought a writ of formedon, to which the defendants had pleaded nearly 40 different pleas.  The cause came before the court of law on demurrer to the replication, the question being whether the statutes of limitation began to operate as against the claim from the death of Henry TOLSON, in 1763, or the death of Richard, in 1811.  The Court held that the statute ran from 1763, and, therefore, the plaintiff was barred.  This decision was brought before the Court of Exchequer Chamber, but that Court held that the writ of error was premature, as several issues of fact raised by the pleas to the action of formedon had not been disposed of.  The bill in this case sought the delivery up of the title-deeds, and an account of tithes, part of the settled property.  All the relief required on this occasion, was to obviate the effect of the Statute of Limitations of the 3d and 4th William IV.  which had been passed since the suit was instituted.  They asked, therefore, that a trial at law might be directed by the Court.

Mr. K. PARKER and Mr. WETHERELL, for the defendants, said the bill ought to be dismissed, as the plaintiff had entirely failed to prove the case alleged by this bill.  He had not proved his pedigree, or any possession under the deeds upon which he pretended to found his claim.

His HONOUR referred to the decision of the House of Lords in "KNIGHT v. the Marquis of WATERFORD," in which the house refused to protect the plaintiff from the effect of the Statute of Limitations, which had passed during the progress of the cause, or deprive the defendant of the benefit of that statute in the action at law which they gave the plaintiff leave to bring.

The plaintiff ultimately elected to dismiss the bill, without prejudice to the institution of another suit after he should have established his right at law.

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