1 i QJnrnpU &ui ^rl^nnl Slibtary KF 450X51821""'"™"' '-'""'^ V.I A concise treatise on the statute iaw of 3 1924 018 772 024 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018772024 A CONCISE TREATISE ON THE STATUTE LAW OF THJ) LIMITATION OF ACTIONS, Wiii^ an ^ppiitbb of Statutes, COPIOUS REFERENCES TO ENGLISH AND AMERICAN CASES, AND TO THE FRENCH CODE, AND A VEET FULL INDEX. By henry THOMAS BANNING, M.A., OF THE INNER TEMPLE, BARRTSTER-AT-LAW. LONDON : STEVENS AND HAYNES, BELL YARD, TEMPLE BAR. 1877. LONDON : BRADBURY, AGNEW, & CO., PRINTlURg, WHITEPRIAR3, PEEFACE. The Author has endeavoured in this work to give a short outHne of the Law of the Limitation of Actions as it exists under the numerous Statutes deahng with the subject as judicially interpreted. The work, which has been one of much labour, and which the author hopes may be of some use in the profession, is chiefly the result of a careful investigation of the principal reported cases affect- ing the subject which have arisen in the Courts of Law and Equity in England and America. These cases are for the most part cited in the volume, and amount to nearly one thousand in number. The author has endeavoured as far as possible to leave no statement of law unsupported by a judicial decision, and in quoting from important cases he has, so far as is consistent with due brevity, em- ployed the ipsissima verba of the tribunal. In pro- secuting his researches, and still more in verifying yi PEEFACE. their results, he has to acknowledge the valu- able assistance he has received from the follow- ing modern works, viz. : Angell on Limitations ; Blanchard's Law of Limitations ; Brown's Law of Limitation of Realty ; Darby and Bosanquet's Statutes of Limitations ; Shelford's Real Property Statutes ; Smith's Leading Cases ; Daniel's Chan- cery Practice ; Seton on Decrees ; Williams on Executors ; Davidson's Precedents ; Chitty on Contracts ; Byles on Bills ; and many others. Lincoln's Inn Chambees, Chanoeey Lane, January, 1877. CONTENTS. CHAPTEK I. PAGE INTKOD0CTION ........ 1 CHAPTEE II. SIMPLE CONTRACTS . . . . . . . . 10 CHAPTEK III, SIMPLE CONTRACTS WHEN TIME BEGINS TO RUN . 20 CHAPTER IV. ACKNOWLEDGMENTS IN GENERAL . . . . . 35 CHAPTER V. SIMPLE CONTRACTS ACKNOWLEDGMENTS .... 39 CHAPTER VI. SIMPLE CONTRACTS ACKNOWLEDGMENT BY PART PAYMENT . 64 CHAPTER VII. ACKNOWLEDGMENTS BY CO-CONTRACTORS . . . .78 CHAPTER VII r. SIMPLE CONTRACTS DISABILITIES . . . . . 81 Vm CONTENTS, PAGE CHAPTEE IX. HEAL PKOPERTY OWNER AND TEESPASSEB . . .88 CHAPTEE X. REAL PROPERTY ESTATES TAIL 112 CHAPTEE XI. REAL PEOPEETY — ACKNOWLEDGMENTS . . . .118 CHAPTEE XII. REAL PROPERTY EQUITY 120 CHAPTEE XIII. REAL PEOPEETY CONCUBRENT RIGHTS . . . .124 CHAPTEE XIV. REAL PROPERTY JOINT TENANTS AND TENANTS IN COMMON 127 CHAPTEE XV. REAL PROPERTY DISABILITIES 130 CHAPTEE XVI. HEAL PROPERTY LANDLORD AND TENANT . . . . 138 CHAPTEE XVII. REAL PROPERTY — MORTGAGOR AND MORTGAGEE . . .150 CHAPTEE XVIII. ACKNOWLEDGJIENTS AND DISABILITIES IN MORTGAGES . . 167 CHAPTEE XIX. SPECIALTIES . . .175 CONTEJSTS. IX PAGE CHAPTER XX. TRUSTS .......... 187 CHAPTER XXI. ACCOUNTS AND PAETNEESHIP ...... 200 CHAPTER XXII. LEGACIES 209 CHAPTER XXIII. FEAUD ......... 217 CHAPTER XXIV. EXECUTOES AND ADMINISTEATOES . 224 CHAPTER XXV. EFFECT 01? DECEEE ....... 241 CHAPTER XXVI. ACQUIESCENCE AND LACHES . . . . . . 245 CHAPTER XXVII. THE CEOWN ...... ... 249 CHAPTER XXVIII. COMPUTATION OF TIME ....... 254 CHAPTER XXIX. THE CHUECH . . . . . . . .257 CHAPTER XXX. BANKEUPTCY 262 X CONTENTS. PAGE CHAPTEK XXXI. CHABITIES 266 CHAPTER XXXII. TORTS .......••• 269 CHAPTER XXXIII. MISCELLANEOUS . • 273 Appendix op Statutes . . . . ■ . . 287 Index 327 TABLE OF CASES. Abeesavennt (Earl of), v. Brace, 113, 117 Acourt V. Cross, 42 Adair v. Shaw, 192 Adams v. Barry, 210, 226 Allen V. England, 103 Als5op ■;;. Bell, 238, 276 Alston V. Trollope, 236 Amos V. Smith, 72, 73 Anderson v. Sanderson, 60 Andrews u. Brown, 195, 275 Angrove v. Tippett, 29 Anon., 33 — 36 — 195 — 246 Anstee v. Nelmes, 107, 109 Archbold v. Scully, 90, 121, 144, 145, 146, 157, 247 Ashby V. James, 200, 202 Asher v. Whitlock, 106, 107 Ashlin V. Lee, 68 AshweU's Will, In re, 212 Astley v. Earl of Essex, 100, 102 Att.-Gen. v. Brewers' Company, 267 — 11. Corporation of Exeter, 267, 268, 276 — V. Davey, 266, 267 — V. Ewelme Hospital, 261 — w. Fishmongers' Company, 187, 191 — V. Flint, 98, 190 — M. Magdalen College, 249, 266, 267 — V. Newbury, 267 — V. Pretyman, 267 — V. Stevens, 143 B Baildon v. Walton, 67 Baker v. Martin, 192 — V. Wetton, 157 Bampton v. BircheU, 36 Bank of Hartford v. Waterman, 271 Barber v. Barber, 201 Barber Surgeons of London u Pel- son, 16 Barker v. Buttress, 285 Bamett v. Cox, 285 Barrett v. Bermingham, 242 Bash V. Bash, 32 Bass V. Smith, 39 Bateman v. Piuder, 57 Bateson, Ex parte, 265 Battley u Fallmer, 30 Bay ley v. Ashton, 58, 71 Bealy v. Greenslade, 65, 66 Beardman v. Wilson, 160 Beardmore v. Gregory, 231 Beddy v. Lefevre, 134 Belch V. Harvey, 173 Bellamy v. Sabine, 219 Benham's Trusts, In re, 104 Bennett v. Bernard, 242 Bermingham v. Burke, 242 Berrington v. Evans, 242, 243 Bevan v. Gething, 70 Bevin v. Chapman, 32 Binns v. Nichols, 210, 226 Birch V. Wright, 141 Blakeway v. Earl of Strafford, 195 Bland v. Hasebig, 39 Blight's lessee v. Rochester, 195 Blomfield v. Eyre, 134 Blunt V. Heslop, 255 Board v. Board, 107 Boatwright v. Boatwright, 81, 229, 230, 232, 233 Rodger v. Arch, 72, 73 Bonney v. Redgard, 220 Bonomi v. Backhouse, 178, 271, xu TABLE OF CASES. Borrows v. Ellison, 85, 136, 174 Bowes V. East London Waterworks, 276 Bowyerv. Woodman, 162 Bradley v. James, 75 Brandram v. Wharton, 264 Brassingtnn v. Llewellyn, 103 Bree v. Holbech, 21, 27, 218 Brereton v. HutcMnson, 20 Bridgman v. Gill, 15, 187, 220 — V. Green, 217 Briggs V. Wilson, 75, 77, 228, 237 Bright V. Larcher, 211 — V. Legerton, 192 Brigstocke v. Smith, 50 Bristow V. Miller, 208 Brittlehant v. Goodwin, 192 Brooklehurst v. Jessop, 13, 77, 153, 157 Brooksbank v. Smith, 218 Broomhead, In re, 13 Brougham v. Ponlett, 213 Brown v. Howard, 27, 218 Browne v. Bishop of Cork, 156, 158 — V. Radford, 247 Browning v. Paris, 228 Bructon v. Hutchinson, 192 Bryan v. Horseman, 40 Buckm aster v. Eussell, 46 Bullock V. Downes, 209, 214 — V. Lloyd, 28 Burdick v. Garrick, 15, 229, 233 Burke v. Jones, 196 Bum V. Boulton, 68, 69, 71 Burne v. Robinson, 189 Burrell v. Lord Egremont, 20 Burrough v. M'Creight, 129 Buirowes v. Gore, 189 Burt i). Palmer, 69 Bushby v. Dixon, 145 Butler V. Howe, 85 Byrohall v. Bradford, 213 C. Campbell v. Graham, 248 Cannon v. Rimington, 113, 116 Canterbury's (Archbishop of) case, 261 Garden v. General Cemetery Com- pany, 280, 281 Carr v. Carr, 14, 15 Carroll v. Darcy, 242, 243 Carrs v. Stephenson, 208 Gary v. Hills, 231 — V. Stephenson, 233 Casher v. Holmes, 261 Oastleton v. Fanshaw, 237 Catling V. Skoulding, 200, 203 Cawley v. Furnell, 46, 48 Chadwick i>. Broadwood, 146 Chalmers v. Bradley, 246 Charter v. Trevelyan, 220 ■ Chasemore v. Turner, 48 Cheslyn v. Dalby, 53 Chetham v. Hoare, 218, 219, 220 Chievly v. Bond, 13 Cholmondeley v. Clinton, 121, 188 Clanricarde (Marquis) v. Henning, In re, 220 Clark V. Alexander, 202 — V. Figea, 18 — ■0. Hougham, 40, 60, 62 — V. Moody, 23 Clarke v. Yonge, 276 Clayton v. Gosling, 27 Cleave v. Jones, 71 Clendhming, In re, 262, 263 Coates V. Coates, 226 Cockram v. Wc4by, 17 Cockrill V. Sparkes, 49, 80 Codrington v. Foley, 190 Colclough, In re, 243 Coleman v. Winch, 163 CoUedge v. Horn, 45, 53 Oollett V. Barker, 17 Colling V. Heywood, 28 Collins V. Benning, 23 Collis V. Stack, 47, 48, 265 Collyer «. Willcock, 67 Commissioners of Charitable Dona- tions V. Wybrants, 266 Cook V. Amham, 84, 173 Coope V. Cresswell, 77, 186 Cooper V. Cresswell, 19 — V. Emery, 5, 122 — V. Godmond, 24 — V. Greene, 246 Coote V. Wliittington, 231 Corbett v. Barker, 155 Cordwell's estate. In re, 236, 240 Cork & Bandon Railway Company V. Qoode, 16, 17 Cornforth v. Smithard, 44 TABLE OF CASES. XUI Cottam V. Partridge, 202 Courtenay v. Williams, 225, 239 Cowper V. Godmoncl, 24 Cox V. Dolman, 163, 190, 191 Crawford u Gaulden, 30 Cripps V. Davis, 49 Crosier v. Tomlinson, 82 Culley V. Taylorson, 129 Curlewis v. Momington (Earl of), 234, 283 D Dann v. Spurrier, 245 Davenport V. Stafford, 214 Davies v. Edwards, 66, 264 Dawes v. Hawkins, 278 Day V. Day, 141 De Beaiivoir v. Owen, 90, 145 De la Torre v. Barclay, 51 Dean of Ely v. Bliss, 90, 258, 259 — V. Cash, 90 Dean v. Thwaite, 219 Denys v. Shuokburgh, 271 Devayne v. Noble, 14, 15 Devine v. Holloway, 136 Dewdney, Ex parte, 225, 236, 237, 262, 263, 264 Dickenson v. Teasdale, 189, 191 Dickinson v. Hatfield, 53 Dimadale v. lies, 140 — V. Dudding, 214 Dix V. Burford, 213 Dixon V. Gayfere, 106 Doe V. Barnard, 106 — V. Beckett, 143 — • V. Benbam, 143 — V. Bingbam, 146 — V. Blakeway, 100, 147 — V. Bramston, 122 — V. Brigbtwen, 277 — V. Carter, 140, 141 — I'. Combes, 103 — V. Danvers, 100, 102, 145, 147 — V. Dav, 151 — V. Dytall, 106 — V. Edmonds, 120 — V. Eyre, 152, 158 — V. Godsil, 143, 146 — V. Gower, 142 Doe V. Groves, 141 — V. Hellier, 111 — V. Hinde, 143 — V. Jones, 84 — V. Keen, 127 — 1). Ligbtfoot, 151 — V. Liversedge, 125 — V. Massey,'l52, 158 — V. Monsdale, 125 — V. Nepean, 104 ^- V. Oxenham, 146 — V. Page, 139 — V. PhUlips, 194 — V. Reade, 194 — V. Roberts, 251 — V. Rocke, 141, 194 — V. Sumner, 142 — V. Thompson, 111, 139 — V. Turner, 140, 141 — V. Williams, 151 — V. Wilson, 252 Doberty (lessee of ) v. Doberty, 147 Dormer v. Fortescue, 276 Dover v. Maestaer, 19 Dover, Ex parte, 213, 214 Dowley v. Winfield, 105 Down V. Spurrier, 28 Downes v. Bullock, 214 Dowtbwaite v. Tibbut, 40 Drew V. Earl of Norbury, 146 Drummond v. Sant, 157 Dublin, Corporation of.i;. Judge, 119 Dumpor's Case, 103 Dunne v. Doran, 192 Dupleix V. de Roven, 9, 12 Du Viguier v. Lee, 162, 165 Eable v. Bellingham, 209 East V. East, 26 East India Company v. Paul, 51, 269 Eastwood V. Saville, 71 Edsell V. Buchanan, 121 Edmonds v. Downes, 58 — V. Goater, 44 Edmunds v. Waugh, 5, 31, 162, 164 Edwards v. Janes, 71, 76' — V. Warden, 198, 212 Eicke I'. Nokes, 265 XIV TABLE OF CASES. Ellis (lessee of) v. Crawford, 147 Elvy V. Norwood, 162, 163 Ely (Dean of) v. Bliss, 90, 258, 259 Emery v. Day, 21, 25 Evans v. Davies, 68, 76 Ewer V. Jones, 283 Eyre v. Walsh, 152 F. Fannin v. Anderson, 86 Farrington v. Lee, 202 Faulkner v. Daniel, 152 Fearn v. Lewis, 46 Feams v. Young, 211 Felter v. Beal, 30 Feltmakers' Company v. Davis, 16 Fenton v. EmUers, 29 Fenwick v. Reed, 159 Fievit V. Manby, 285 Fladong v. Winter, 86 Foley V. Hill, 14 Forbes v. Smith, 83, 87 Ford V. Ager, 158 Fordham v. WalUs, 77, 216, 228, 229 Forrest v. Douglas, 229 Foster v. Hodgson, 201, 204 — ■ V. Dawber, 66 Freake r. Cranefeldt, 234 Freeman v. Barnes, 193 — V. Dowding, 214 Frost V. Bengough, 40 Fuller V. Eedman, 237 Fulton V. Creagh, 146 Fulthorpe v. Foster, 159 G. Garden v. Bruce, 25 Gardner u M'Mabon, 45, 52 Garrard v. Tuck, 191, 194 Gartshore v. Ohalie, 210 Gibson v. Bott, 211 — V. Baghott, 59 — V. Clarke, 251 GUlon V. Boddington, 30, 271 Gery v. Eedman, HI Gleadow v. Atkin, 75 Goate V. Goate, 50 Goodallu SkeiTatt, 117 Godwin v. Culley, 56, 60, 62 Goodtitle v. Baldwin, 107, 251, 252 Gosden v. Elphiok, 286 Gowan v. Forster, 74 Gowers, Ex parte, 265 Grant v. Ellis, 90, 145 Gray v. Mendez, 264 Green v. Johnson, 278 Green's Case, 247 — Settlement, In re, 104 Greenway v. Broomfleld, 165/ 242 Gregory v. Parker, 60 — V. Hurrill, 87 Grenfell v. Girdlestone, 63 H. Hales v. Stevenson, 48 Hall V. -Noves, 246 Halliday ?;."Ward, 60, 62 Hambly v. Trott, 30, 269 Harcourt v. White, 100, 248 Hargreaves v. Mitchell, 196 Harris v. Harris, 191 ■ — 11. Osbourn, 274 — V. Saunders, 12, 13 Hart V. Nash, 72 — V. Prendergast, 46, 49 Hartley v. Wharton, 58 Haseldine v. Grove, 286 Hawksbee v. Hawksbee, 107 Haydon v. Williams, 56, 57, 61 Hayes v. Woodley, 146 Hayward v. Kinsey, 238 Hele V. Lord Bexley, 286 Helps V. Winterbottom, 22 Hellings v. Bird, 128 — V. Shaw, 40 Hemp V. Garland, 26, 27 Henry v. Smith, 165 Hickman v. Upsall, 166 Hicks V. Sallitt, 133, 276 Higgins«). Scott, 16 — V. Shaw, 238 Higham v. Ridgway, 75 Hill V. South Statfordshire Railway Company, 66 — V. Walker, 224, 225, 226 Hindniarsh, In re, 15 Hinsdale v. Larned, 269, 278 Hipwell V. Knight, 256 Hitchin v. Campbell, 30, 269' TABLE OF CASES. XV Hodges V. Croydon Canal Company, 163 Hodsden v. Harridge, 18 Hodgson V. Hooper, 139, 140 Hogg V. Scott, 276 Holdfast V. Clapham, 161 Hollingshead's Case, 121, 238 Hollis V. Palmer, 64 Holmes v. Kerrison, 27 — V. Maokrell, 47, 58 Hony V. Hony, 29, 31 Hooper v. Stevens, 72 Hordle v. Healey, 157, 170 Houghton V. Franklin, 211 HounseU v. Gibbs, 23 Hovenden v. Lord Annesley, 121, 145, 218 Howcutt V. Bowrer, 5 Howell V. Young, 30 Huggins «. Coates, 24 Hughes V. Kelly, 162 — V. Palm'er, 103, 148 Huguenin v. Baseley, 217 Hull (Mayor of) v. Horner, 252 Humble d. Humble, 242, 243, 276 Hunter v. Nockolds, 162 Hurst r. Parker, 41, 270 Hutchings v. O'Sullivan, 242, 243 Hyde v. Dallaway, 155 — V. Johnson, 37, 59 — V. Watts, 103, 148 I. Imperial Gas Light Company v. London Gas Company, 218 Incorporated Society v. Richards, 120, 266 Ingle V. Richards, 227 Inglis V. Haigh, 12 Irving V. Veitch, 74 J. Jackson v. WooUey, 80 Jacquet v. Jacquet, 191, 196 James v. Salter, 97, 99 Jenner v. Tracey, 84, 1 73 Jolliff V. Pitt, 229 Jones V. Hughes, 76 — V. Hoar, 30, 269 Jones 1}. Pope, 16, 17 — V. Scott, 275, 276 — V. Stratford, 196 — V. Tuberville, 85 K. Keen v. Deardon, 194 Kemp V. Westbrook, 32 Kensington Station Act, In re, 279 Kerrison v. Williams, 29 Kidd, Ex parte, 262, 264 Kilgour V. Finlyson, 208 King V. Jones, 178, 180 — (the) V. Morrall, 252 Kingdon v. Nottle, 178 Kirkwood v. Thompson, 166 Knight V. Bowyer, 191 Knott V. Farren, 50 Knox V. Gye, 203, 204, 205, 206, 210 — V. Kelly, 189 Koch V. Shep'herd, 87 Lacon v. Briggs, 39 Lafond v. Ruddock, 83 Lake v. Hayes, 33 Lamb v. Clark, 29, 269 Lambert v. Taylor, 252 Lamine v. Dorrell, 29, 269 Lane v. Bennett, 276 Langley v. Fisher, 219 Larkins v. Phipps, 210, 215 Law V. Bagwell, 190 Lawley v. Hooper, 159 — V. Lawley, 187 Lawton v. Ford, 190 Leaper v. Tatton, 40 Leasure v. Mahoning Township, 279 Le Boy v. Crowninshield, 9 Le Veux v. Berkeley, 9, 83 Lechmere v. Fletcher, 53, 58 Lee V. Norris, 251 — V. Wilmot, 49, 50, 57 Leeds, Duke of, v. Amherst, 99, 245 Leland v. Murphy, 51 Lester v. Garland, 30, 254 Lewes Trusts, In re, 104 Lewis V. Buncombe, 163, 213 XVI TABLE OF CASES. Lewis V. Runiney, 225, 227 — V. Thomas, 219 Ley V. Peter, 118 Lister v. Pickford, 199 Litchfield v. Ready, 150 Locke V. Matthews, 140, 141 Lockey v. Lockey, 187, 200, 205 Looking v. Parker, 166, 197 Loudon, City of, v. Gorry, 15 Long V. Greville, 68 Lovett, In re, 231 Lowe, In re, 158 Lowther v. LordTladnor, 261 Lucas V. Dennison, 169 M. Mabbr v. Maber, 72, 73 Mkgdalen College Case, 117 — Hospital •». Knotts, 267 Maghee v. O'Neil, 71 Mali^^ V. Freeman, 103, 148 Manby v. Bewicke, 219, 220 — D. Manby, 32, 33 Marker v. Marker, 246 Martin v. Heathcote, 201, 204 Martindale v. Palkner, 274 Mason v. Broadbent, 163, 164, 278 — 1). Mason, 105 Massey v. Johnson, 286 ''■ tthews V. Phillips, 32 Mavor v. Payne, .263,": "iS, 264 Mayor of Hull v. Humor, 29 M'Cullock V. Dawes, 224 Ai'Donnell v. M'Kiutay, 98 Melling v. Leak, 194 MeUish v. Brooks, 89 MiUer v. Miller, 204 Millington v. Holland, 204 Mills D. Capel, 114 — V. Fowkes, 70, 202 Mitchell V. Foster, 256 Montmorency (lessee of) v. Walsh, 147 Moodie v. Bannister, 184 Morgan v. Morgan, 114, 134 Morrell v. Frith, 58, 120 Morris v. Morris, 99 "%"-.^-*i„i^, Mountstephen v. Brooke, 40, 60,' 61 Murphy v. Murphy, 129 Murray v. Coster, 25 Murray -o. East India Company, 233 Mutlow V. Bigg, 189, 190, 197 N. Nannet v. WilUams, 133 Nash V. Hodgson, 70, 71 Nedhams' Case, 227 Nepean v. Doe, 105, 122 Neve V. Hollands, 76 Nioklin v. Williams, 271, 272 Norris v. Hundred of Gautris, 255 Norton v. Frecker, 224, 225 O. Obeb 1). Bishop, 192 O'Connor ■«. Haslam, 196 O'Kelly V. Bodkin, 241, 242 Oliver v. Thomas, 13, Ord V. Euspini, 202 Oughterlony v. Earl Powis, 195 Owen V. De Beauvoir, 91,95, 136,146 — V. Wooley, 51 Page v. Selby, 127 Paget V. Foley, 149, 162 Paine v. Jones, 107, 110 Pare v. Clegg, 198 Parham v. Macrory, 218 Parsons ii. Chamberlain, 256 Partington v. Butcher, 40 Pawsey v. Barnes, 190, 197 Peaceable v. Read, 128 Pearpoint v. Graham, 254 Peaslee v. Breed, 239 Pellew V. Hundred of Wonford, 255 PeUy V. Bascombe, 133, 135 Pendleton v. Rooth, 172 Pennington d. Cardale, 269 Penny v. Allen, 114 — v. Brice, 229 — V. Watts, 231 Perry v. Davison, 256 — »;. Jenkins, 233 Peters v. Brown, 60 Petre v. Petre, 190, 218, 219 Pettiward v. Prescot, 276 TABLE 0? OASES. XVll Phene's Trusts, In re, 104, 105 PMllipo V. Mullins, 213, 214 Phillips V. Ball, 111 — V. Broadley, 274 — V. PhilUps, 43, 44 Phillipson v. Gibbon, 119 Piggott V. Eush, 12, 82 Pitt V. Lord Dacre, 9, 248, 286 Pittam V. Foster, 60 Playfair v. Cooper, 213 Pomfret (Earl) v. Lord Wiadsor, 194 Pott V. Clegg, 14, 15, 59 Prevbst ■;;. Gratz, 220 Price V. Berrington, 219 Prior V. Horniblow, 209, 210, 226 Pritohard i;.. Draper, 208 Proud V. Proud, 195 Prowse V. Spurgin, 244 Pulteney v. Warren, 123 Purdon v. Purdon, 65, 66 Putnam v. Bates, 77 Q. QuANTOCK V. England, 263 Queen v. Justices of Kent, 37 Quincey v. Sharpe, 44 R. Eackham v. Marriott, 49, 51 Eaffety v. King, 155, 156 Eandall v. Stevens, 103, 140 Eayner v. Koehler, 231 Eavald v. Eussell, 155 Eawley v. Eawley, 239 Eead v. Farr, 103, 148 Eeade v. Eeade, 15 Beading's Case, 128 Eeed v. Fenn, 20, 215 Eeeve v. Hicks, 155 Eeid V. Dickons, 68 Eeg. V. Lumley, 105 Eemington v. Stevens, 239 Eew V. Pettet, 76 Eex V. Lord of the Manor of Agard- sley. 111 Eeynolds v. Doyle, 28 Ehodes v. Smethurst, 7, 226 229, 234 Eichards v. Foster, 196 Eichardson u. Younge, 156, 157, 169, 170 Ridd V. Moggridge, 64 Eobaits V. Robarts, 200, 202 Eoberts v. Davey, 103, 148 — V. Eead, 271 Eobinson v. Alexander, 201, 204 Roch V. Callen, 212 Rochdale Canal Company v. King, 245, 247 Roffey V. Roffey, 262 Rolfe V. Chester, 163 Ross, Ex parte, 264 Rothery v. Munnings, 274 Round V. BeU, 163, 165 Eoutledge v. Ramsay, 57 Eowsell V. Morris, 231 Ruckmayboye v. LuUoobhoy, 133 Rudd V. Sewell, 246 Rustomjee v. The Queen, 252, 253 Salter v. Cavanagh, 197 Sanders v. Benson, 13 Savage v. Aldren, 20, 25 Scales V. Jacob, 40, 47 Scott V. Jones, 195, 196, 236, 275 — V. Nixon, 118 Scholey v. Walton, 228 Scudamore v. White, 201 Seagram v. Knight, 156, 227 Seaman v. Vaudrey, 98 Searle v. Barrington, 75 Selsey (Lord) v. Ehoades, 246 Sharpe, Ex parte, 15 Shaw V. Johnson, 163 Sheil V. Incorporated Society, 259 Shepherd v. Hills, 16 Sheppard v. Duke, 209 Sherwood v. Sutton, 218 Shirt V. Westby, 209 Short V. M'Carthy, 25, 27 Shortreed v. Cheek, 58 Sidwell V. Mason, 45, 48, 49 Sims V. Thomas, 149, 162 — V. Britton, 30 Sinclair v. Jackson, 162, 163 Sirdefield v. Price, 33 Smallcombe v. Bruges, 264 Smales v. Dale, 127 4 XVIU TABLE OF CASES. Smith V. Forty, 200, 202 — 0. Fox, 31 — V. King, 194 — V. Lloyd, 98 — V. Thome, 44, 48 — V. Winter, 239 Sober v. Kemp, 162 South Sea Company v. Wymond- sell, 13, 17, 121, 218 Spickernell v. Hotham, 58 Spong V. Wright, 53 Spoor V. Green, 28, 176 Spratt V. Sherlock, 146 Spurway v. Glynn, 209 St. John (Lord) v. Boughton, 186 Staokpoole v. Staokpoole, 111 Stafford v. Richardson, 24 Stahlschmidt v. Lett, 225 Stansfield v. Hohson, 171 State Bank of Illinois v. Brown, 253 Stead, In re, 164, 165 Sterndale ». Hankinson, 241, 242, 244, 264 Stone V. Stone, 193 Storer v. Prestage, 211 Story V. Fry, 86 — V. Gape, 192 Stowel V. Lord Zouch, 124 Stratfield v. Dover, 117 Strithorst v. Graeme, 83 Sturdy v. Henderson, 27 Sturgis V. Darrell, 234 — V. Morse, 220 Sturt V. MeUish, 33, 84, 277 Supple V. Raymond, 84 Sutton V. Toomer, 27 — V. Stone, 161 Swayn v. Stephens, 16, 82 — V. Wallinger, 264 Swift V. Jewshury, 37 T. Talbot v. Braddil, 159 Talory v. Jackson, 18 Tanner v. Smart, 41, 47, 61, 270 Tatam v. Williams, 205 Taylor v. Horde, 3 Teulon v. Curtis, 159 Thomas v. Thomas, 133, 134, 135, 163, 276, 277 Thompson v. Bowyer, 171 — V. Waithman, 208 Thorpe V. Booth, 27 Tidball v. James, 129 Tippets V. Heane, 65 Tobacco Company v. Loder, 15 Toft V. Stephenson, 197, 228 Toms V. Cuming, 37 Topham v. Braddick, 23 Topping, Ex parte, 264, 265 Towers v. Haghner, 278 Towns V. Mead, 85 Townsend v. Deacon, 83 — V. Townsend, 190 Trentham v. Deverill, 71 Troupe v. Smith, 218 Trulook V. Robey, 170, 171 Tuokey v. Hawkins, 29 TuU V. Owen, 155 Tullock r. Dunn, 228 Turner v. Bennett, 140 — V. Buck, 209 Turney v. Dodwell, 74 Tyson v. Jackson, 23 U. Underhill v. Kelsey, 132 United States v. Hill, 253 Uppington v. Tarrant, 149 Vane v. Vane, 218, 221 Vansandau v. Crosbie, 30 Violett V. Sympson, 271 W. Wain v. Warlters, 153 Wainman v. Kynman, 66 Walker v. Butler, 69 — V. Clements, 32, 256 Waller v. Lacy, 202 Walter v. Walter, 32 Walters v. Webb, 161 Wankford v. Wankford, 227 Ward V. Arch, 189, 191 — V. Grey, 211 TABLE OF CASES. XIX Waters v. Earl of Tlianet, 52 — V. Tomkins, 68 Watson V. Birch, 241, 242 — V. Woodman, 15, 80, 208 Waugli r. Cope, 68 Webster v. Webster, 229, 230, 231 — V. Kirk, 28 Wedderbvim v. Wedderbum, 187 Westbrook's Trusts, In re, 105 Whippy V. Hillary, 59 Whitoombe v. Whitcombe, 78 Whitehead v. Howard, 30 — V. Lord, 274 Whitehouse v. Fellowea, 271 Whitfield V. Bowyer, 286 — V. Knight, 286 Whitton V. Peacock, 111 Widdowson v. Harrington (Eari. of), 111 Wilby V. Elgee, 48 WilUams v. Griffiths, 53, 202 — V. Gun, 39 — V. Innes, 60 Williams v. Jones, 9, 84, "86 Williamson v. Naylor, 196, 224, 225 Willis V. Newham, 71 Willmott V. Jenkins, 213 Wittersheim v. Lady Carlisle, 21, 25 Wood V. Brodick, 208 WooUey V. Clark, 234 WormweU v. Hailstone, 21 Worthington v. Grimsditch, 73 Wyllie V. Ellice, 134 Yardley v. HoUand, 166, 197 Yates V. Hambly, 159 Yea V. Eouraker, 57 Young V. Lord Waterpark, 189, 191 ZouCHB (Lord) V. Dalbiac, 92 EKRATA. Page 40, marginal note, /or " do not apply," read "does not apply.' Page 158, marginal note, /or "reversion," read "reversions." THE STATUTE LAW LIMITATIONS OF ACTIONS. CHAPTER I. INTRODUCTION. The law of the limitations of actions in England Historical view ° of tlie law ot applicable to questions of title or contract is entirely limitations in the creation of Statute. At Common Law there existed no period of limitation except in the single case of a fine with proclamations ; ' and the want of such a limitation was supplied (where supplied at ' Originally the time al- tion's, p. 11, and Blanshard, p. lowed within which a stranger 4. The truth of the dictum of might make a claim after a Bracton to the contrary," omnes fine with proclamations was a actiones in mnndo infra certa year and a day, but this was tempora habent limitationeni '' enlarged to a period of five (Bracton, Lib. 2, fol. 52) seems years by the Statute 4 Hen. 7, as doubtful as the Latinity. On c. 24. Of. Co. Litt. 26 (a), the other hand torts were al- Fines are now abolished, 3 & 4 ways subject to the rule ex- Wm. 4, c. 74. The statement in pressed in the maxim, " actio the text seems to be now re- personalis moritur cum per- cognised. Cf. Angell's Limita- sona." INTEODDCTOEY. all) by a doubtful doctrine of presumption.^ When legislation had b'ecome a necessity the Legislature did not at first fix any certain and progressive period within which actions should be commenced, but from time to time chose for that purpose certain Noteable times ; and in this manner, by virtue of various Statutes, the beginning of the reign of King Henry the First, the return of King John from Ireland, the journey of Henry the Third into Nor- mandy, and the coronation of King Richard the First were successively chosen, that suits and actions, the cause of which arose previous to their respective dates, should be barred.^ The early Statutes had reference to realty alone, and they were from their nature, though productive of immediate relief, merely of temporary advan- tage. At length, in the reign of Henry the Eighth, a more commodious course was taken, so that, in the words of Lord Coke, "by one constant law cer- tain limitations might serve both for'' the time present and for all times to come."^ This was ' 1st Rep. Real. Prop. Com- to the Wager of Law seems to missioners, p. 39. It has been be preserved in the Code Na- suggested that trial by Wager poison, but with the opposite of Law allowed in actions of intention of preventing the debt also acted as a check to abuse of the law of limitations, state demands. By this me- Co. Civil. 2275. thod a defendant was allowed " Hale's Common Law, 6th to clear himself by the oath of Ed. p. 152. Cf. Co. Litt. 114 himself and of eleven compur- (b), 115 (a), gators. Something analogous " 2 Inst. 95. INTEODUCTORY. i effected by the Act of 32 Henry 8, cap. 2, '•' a profitable and necessary statute," ' by which the hmitation of time in every case was reduced to a fixed interval between the accrual of the right and the commencement of the action. The intervals so fixed were in the various cases per'iods of fifty, sixty, and thirty years. This permanent and effectual method of limitation was adopted in all subsequent Acts.*^ The beneficial Statute of James, which applied to Adverse pos- . session. personal actions as well as to realty, remained for a length of time the principal Act of Limitation affecting land, as it still remains the principal Act regarding simple contracts. But real property has been the subject of more frequent legislation. The most important Act was that passed in the reign of William the Fourth.^ By that time the construction of the Act of James in regard to realty had become involved in almost hopeless confusion, especially with regard to the old doctrine of adverse posses- sion,* and in the year 1833, in compliance with a ^ Co. Litt. 115 (a). time of Richard 1. ^ There is one exception. ^ 3 & 4 Wm. 4, c. 27. See In the Statute, 21 James I., c. Appendix. 16,therightsof the crown were ■* Of. the remark of Lord to be barred at the expirationof Mansfield, "The more we read 60 years from the beginning of the more we shall be con- the then session, viz., the 19th founded." Taylor d. Atylciu ^. of February, 1623. The limit Horde, 2 Smith's L. C. ; 1 Burr, of legal memory, as is well 60. known, still dates from the n 2 4 INTEODTJCTOEy. recommendation of the Real Property Commis- sioners, the whole law on the subject was ultimately remodelled by the important Statute, 3 & 4 Wm. 4, c. 27. This Act, though it has not escaped (as will be seen) the vice of ambiguity which seems destined to follow legislation on the subject, and which is perhaps due in part to the apparent simplicity and real complexity of the questions that arise, has greatly simplified the law by, amongst other things, abolishing in the old sense of the expression, the doctrine of adverse possession. A recent Act', which has not as yet come into operation, has reduced the different periods of limitation in length, but has in other respects for the most part left undisturbed, or has re-enacted afi-esh, the provisions of the Act of William the Fourth.^ The statutes Statutcs of Limitation have been termed statutes of Limitations on- p • i i i are statutes of ot rcposc '' aud opmion, proicssional and general, has been in favour of a continuous augmentation of their stringency. This feeling, so far as regards real property, has been much increased of late years by the desire generally felt by the legal profession and by the public to abridge the length of abstracts and to simplify the deduction of titles, a result which it has been thought may be partially at least obtained ' 37 & 38 Vict. c. 57. See ought to be favoured." 2 Salk. Appendix. 421. They may, however, be 2 3 Brod. & Bing. 222. Cf. viewed otherwise, and have sndh expressions as, " The been termed " Improborum statute of limitations on which prsesidium." See Evans' Pot- the security of all men depends hier, s. 657. INTKODUCTORY. i by a strict law of limitation.' The result has been the recent Act,'^ which has diminished by nearly a half the length of time allowed for the recovery of land. There can be little doubt that the policy of the laws of limitations is good, but they may at the same time be productive of individual hardship, and it must be remembered that though their policy is one to be encouraged, yet they are Acts which take away existing rights, and which should there- fore not be unnecessarily stringent, and should be construed with reasonable strictness.^ The principles upon which laws of limitation and Principles on wiiicli law is prescription are founded depend, according tofo™ spirit of the standing its beneficial operation and great practical utility, it has been described as being " unfortunately worded very loosely." ^ In particular, there is no mention in the Act of perhaps the most important action of all, that of assumpsit. But the omission is clearly unintentional,'^ and it has been construed and settled by early cases that assumpsit is within the Act, inasmuch as it comes within the reason of the Statute and may also be fairly considered to be included in trespass on the case.^ The section is ^hc scctiou thus read is very comprehensive, and comprehensive. * ■*■ comprises nearly all cases of contract not founded on specialty, and which indeed fall for the most part under the head of assumpsit. To attempt any com- plete enumeration would be useless. There are, however, some cases within this Statute which, as they fall less obviously within it, it may be well to particularise. Thus assumpsit upon foreign judg- ments is within the section, inasmuch as, if a man recovers a judgment in France or any other foreign country for money due to him, the debt will only What are sim- rank in this country as a simple contract debt for the purpose of the Statutes of Limitation,* and this ' Per Parke, B., in hfflis v. ' Harris v. Saunders, 4 B. & Haigh, 8 M. & W. 769, 779. Cress. 411. Bac. Abr., Limita- ^ Per Dentnan, C.J., in tions, E. 1. Piggot V. Rush, 4 Ad. k Ell. * Dupleix v. De lioven, 2 912. Vern. 540. SIMPLE CONTRACTS. 13 is SO even with regard to Irish judgments and since the Union.' It was early decided that actions of assumpsit on i^iu^ "f ex- 1 •,, f. 1 1 • . , . cliange, solici- Dills ot exchange and promissory notes were withm toi's fees, &c. the section.'' Actions by attorneys to recover their fees are within the section, for though the status of an attorney is " of Record " yet his fees are not of Record.' But the lien of a sohcitor on deeds in his possession for his costs may of course remain after the statutory period.* Actions of assumpsit by a bankrupt's assignees under the old laws were held within the section, on the ground that, notwithstand- ing that the assignment was by Act of Parhament, yet the assignees could only stand in the bankrupt's place, and have what right and remedy he had.® Money lent on a depusit of title deeds creates only a simple conti'act debt ; but this is subject of course to the question of hen.® The liability of an equitable assignee of lease- Deposits with holds for the covenants thereon is within the sec- tion.^ The ordinary dealings of bankers and cus- tomers also fall within the section, inasmuch as ^ Harris v. Saunders, Al B. ' Bac.Abr., Lim.,E.l. South & C. 411. Sea Go. v. Wpmondsell, 3 P. 2 Chievly v. Bond, 4 Mod. W. 144. And see Index, S. C. Eep. 105. Bankruptcy. ' Oliver V. Thomas, 3 Levin, * Brocklehurst v. Jessop, 7 367. Sim. 438. ^ In re Broomhead, 5 D. & ' Sanders v. Bemon, 4 Bea- S. 52. van, 450. 14 SIMPLE CONTRACTS. sums paid to the credit of a customer with his banker, though usually called deposits, are in truth loans to the banker,^ and it is a fallacy to liken the dealings of a banker to the case of a deposit, to which, in legal effect, they have no sort of resem- blance, as money paid into a banker's becomes at once part of his general assets, and he is merely a debtor for the amount. In fact, money deposited with a banker by his customer in the ordinary way is money lent to the banker, with a superadded obligation that it is to be paid when called for by cheque, and consequently if it remains six years without payment of principal or interest, the right to recover it is barred. And this is the case even although there be an agreement to pay interest, which it is the banker's duty (though in the case subjoined it was omitted) to enter duly to his cus- tomer's credit.^ And this is so notwithstanding that the debt of a bank to customers is one of a special nature, and one for which no action can be brought without a previous demand.^ It is, how- ever, necessary to remark that, in Pott v. Clegg, Pollock, C.B., suggested a doubt whether the ques- 1 i^oZe?/ v.ffi«,lPhill. 399; bankers had fraclulently or Pott Y. Cleqg, l&M.. tyf. '62,1; through gross carelessness Carr v. Carr, 1 Mer. 541 (?i) ; omitted their duty to enter the Devayne v. Noble, 1 Mer. 568. interest. 2 Pott V. Cleyg, 16 M. & W. ^ Pothier on Contracts, 321 ; Foley v. Hill,ubi supra, quoted in Pott v. Cli^iji/, 16 M. But in Foley v. Hill there was <& W. at p. 325. no charge in the bill that the SIMPLE CONTRACTS. 15 tion was not one for a jury to decide whether money so lent were a loan or deposit.^ The case is, however, different where the banker J^^eptioiis if ' ' bankers nave has notice that the fund is a trust fund, even thoup;h notice of trust ' ^ or ileposit in he has no notice what are the particular trusts.^ specie. And again, in the case of money deposited in a sealed bag, or which may otherwise be earmarked and recovered in specie.^ The liability of a solicitor for money of his client come to his hands, in the absence of fraud, is simply that of an agent or factor, and creates a simple con- tract debt only.* But where the plaintiff claimed against his solicitor for money received on his be- half, the Statute was not considered a bar to the summary jurisdiction of the Court.^ An action for mesne profits is considered within the Act.® Money due by virtue of a custom is within this ^^''"'^y "^"^ ^y ■' •' custom. Act.^ So, too, may be an action grounded on a bye-law made by a company under its charter or Act of Parliament ; on the ground, apparently, tbat though in one sense a bye-law is grounded on the ' Pott V. Clegg, iibi supra. And see infra. ^ Bride/man V. Gill, 24:Bea,v. * JUx parte Shar2),W. W. & 302. D. 354. " Carr v. Carr, 1 Mer. 541 « Reade v. Reade, 5 Vesey, (n) ; Bevayne v. Noble, Ibid., 749. 568. T Mayor of London Y.Gorry, ' In re Hindmarsh, 1 Dr. 2 Levin. 174. S. 0. as City of & Sw. 129 ; Biirdick v. Gar- LondoiiY. Goree, 1 Ventr. 298 ; rett, 5 Ch. 233 ; Watson v. Tobacco Company v. Loder, 16 ^¥oodman, L. K. 20 Eq. 731. Q. B. 765. 16 SIMPLE CONTRACTS. Cases not ■within this statute or charter which authorises it, yet it only operates against an individual by virtue of his ov^n assent.* Actions of trover and of replevin are within the Statute of James.'^ The fact that a creditor has collateral security for a simple contract debt will not prevent the debt from becoming barred (as respects other remedies), though he will, of course, retain his lien upon the security.^ Actions to recover damages for torts, inasmuch as they are quasi e contractu, are within the Act.* Actions grounded upon a Statute or a matter of ■^<=*- record, or on any specialty are specialty debts, and not within this Statute. Thus an action of debt by a railway company against one of its members, under the Companies Clauses Consolidation Act (8 & 9 Vict., c. 16) and its special Act, is an action founded upon a statutory liability, and there- fore a plea that the action is founded upon contract without specialty, and that the alleged cause of action did not accrue within six years before suit, is a bad plea, the proper limitation to such an action ' Barher Surgeons of London Ad. 413. V. Pelson, 2 Lev. 252 ; Felt- * Corh and Bandon Railway maJcers' Co. Y. Baiiis,! Stremge, Co. v. Goode, 13 C. B. 826; 385. Shepherd v. HilJs, 1 1 Exch. 55, ^ Swayn v. Stevens, Cro. Car. 67 ; Jones v. Pope, 1 Wm. 245. Saunders, 37. Iliggins v. Scott, 2 B. & SIMPLE CONTRACTS. 17 being twenty years by the 3 & 4 Wni. 4, c. 42, s. 3.^ And this may be so even when the action is remotely so grounded. There is, however, a dis- tinction a-s to actions grounded upon a statute as to whether they are so grounded directly or indirectly, and in the latter case they are not within the excep- tion.^ Thus, a debt for escape under 1 Rich. 2, c. 12, is a specialty debt.' So is an action against a sheriff for money levied under &fi.fa., because such action arises in a maleficio^ and is chiefly grounded on Record ; * but now actions for an escape, or for any money levied under a fi. fa. are provided for by 3 & 4 Wm. 4, cc. 42, 43, the limit being six years.' It has been unsuccessfully contended that attorney's bills are also so grounded on Record.^ A bond creates a specialty debt.' An action for debt of a fine for a copyholder is Cases not .,...„■, n T • witliin the Act not witmn the Act,* but now any nne due m respect of any copyhold estates must be recovered within six years under the 3 & 4 Wm. 4, c. 42.^ Neither is an action for debt for arrearages of rent reserved on an indenture of demise within the Statute of James ; ^^ but this case has also been provided for by a later • Cork and Bandon Railway Kep. 212, where, however, Co. V. Goode, uU sup. Scroggs, J., dissented. ^ South Sea Co. v. Wymon- * See Appendix. sell, 3 P. W. 144. " See supra, p. 13. ' Jones V. Pope, 1 Levin, ' Blansh. 92. 191. See 1 Siderfin, 306; '^ Bac. Abr., 228, D. 1. and 1 Siderfin, 415. ' See Appendix. * Cockram v. Welhy, 2 Mod. '» Bac. Abr., 227, D. 1. c 18 SIMPLE CONTRACTS. statute.' A warrant of attorney does not in itself create a specialty debt.'^ An action for debt upon the 2 & 3 Edward 6, c. 13, for not setting out tithes was held not within the Act,' but the time for the action is limited to six years by the Statute 53 Geo. 3, c. 127, s. 5. Award. An action upon an award to which the submission is by specialty, is clearly grounded upon a specialty ; and even where the submission was not by specialty, h was considered that an action upon the award was not within the Act.* That case was decided partly on the ground, that inasmuch as the award was under hand and seal of the umpire, there was sufficient specialty to prevent the Statute, and partly on the ground that the action was not founded on any lending or contract within the wording of the Statute, but now, by the Act 3 & 4 Wm. 4, c. 42, s. 3, all actions of debt upon any award, where the submission is not by any specialty, must be brought within six years after the cause of action. Seamen's It was doubted whether in a suit in the Admiralty for mariner's wages this Statute was a good plea, it being said that it was a matter properly determinable at common law, and that the allowing the Admiralty ' 3 & 4 Wm. i, cap. 27, s. Car. 513. 40. ■• Hoclson v. Harridge, 1 2 Clarke v. Figes, 2 Stark. Levin, 273. Williams' Notes 234. to Saunders, vol. ii. p. 150 ; 1 ^ Taloiy V. Jackson, Cro. Siderfin, 415. wages. SIMPLE (CONTRACTS. 19 jurisdiction therein was only a matter of indul- gence ; ' but this is now settled by the 4 & 5 Ann., c. 16, by which it is enacted, "That all suits and actions in the Court of Admiralty for seamen's wages shall be commenced and sued within six years next after the cause of such suits or actions shall occur, and not after." There is no limitation at common law to criminal procedure by indictment.* ' Bac. Abr., Lim., D. 4. ' Dover v. Maestaer, 5 Esp. 92. c 2 20 SIMPLE COWTRACTS. CHAPTER III. SIMPLE CONTRACTS — WHEN TIME BEGINS TO RUN. ■When time By scction 3 of the Statute of James it is enacted tegms to run. ^-^^^ ^^^ diifcTent periods within which the remedies for the cases provided for are to be pursued are to be reckoned (except as to slander) from the time of the respectire causes of action. This, indeed, would probably be so independently of the statutory direc- tion. It becomes, therefore, necessary in each case to consider with reference to the Statutes of Limitation at what time the cause of action arose, a question which is not seldom one of difficulty. Thus, adopting the rule that a cause of action, or, as it is sometimes further laid down, a complete cause of action, is the necessary point of com- mencement, time will not commence to run in case of a contingent promise till the event has happened on which the contingency depends. Thus, if a man promise to pay 101. to J. S. when he comes from Rome, and ten years after J. S. returns from Rome, the right of action accrues upon the happening of that contingency, and from that time the Statute will commence to run, and not from the earlier date of the promise.^ ' Bac. Abr., Lim., 230, D, 3 ; Savage v. Aldren, 2 Stark. 232. WHEN TIME BEGINS TO EUN. 21 And time will commence to run in the defendant's f^J^'^y "/ aefendaDt. favour from the date when a cause of action accrued, even though from any cause (such as poverty of the defendant) an action would then have been fruitless.' And a cause of action accrues when work is done, though it may be that the parties cannot get satisfaction till afterwards,* though, of course it may be otherwise where there is a special contract as to time of payment.' So in cases of mistake, time runs from the date of the mistake, not from the date of discovery. Thus, when a personal representative found among the papers of the deceased a mortgage deed, and assigned it more than six years before the action for the mortgage money, reciting in the deed of assignment that it was a mortgage deed made, or mentioned to be made between the mortgagor and mortgagee for that sum, the assignee was not allowed to recover, though it turned out that the mortgage deed was a forgery, and the assignee did not discover the forgery till within six years before the action.* Again, where a defendant promises to pay upon Request. request, a complete cause of action will not accrue till the request is made. Thus, in an action on the case wherein the plaintiff declared that in considera- ' Emeri/Y. Dai/,IC.M. &'R. ^ Wittersheim v. Lady Car- 245, but see also under Torts. lide, 1 H. Bl. 631. ^ Wormwell v. Hailstone, 6 ■* Bree v. Ilolherh, 2 Doug, Bing- 668. 654. 22 SIMPLE CONTRACTS, Goods sold. Factors. tion that he would forbear to sue defendant for some sheep killed by defendant's dog, defendant promised he would make satisfaction, upon request, it was held that the right of action accrued from the request, and not from the killing of the sheep.* In the ordinary case of goods sold the cause of action arises on the delivery to the purchaser in the absence of a special contract, but if credit is given for a fixed period to the purchaser then the cause of action will not arise till the expiration of the credit.^ Where goods were sold at six months' credit, and payment was then to be made by bill at two or three months, at the option of the purchaser, it was held' (Parke, J., duhitante as to the last two or three months), that the transaction, in fact, amounted to a nine months' credit, and that an action commenced within six years from the end of the nine months was commenced in time. The doubts of Mr. Justice Parke appear to have been caused by the fact that the vendor had a right to an immediate remedy against the purchaser for damages on his non- performance of his agreement to give a bill at the expiration of six months.^ If goods are consigned to a factor for sale on commission or otherwise, there is an implied con- tract on the part of the factor to account for such goods as are sold, to pay over the proceeds to his ' Bac. Abr., Lim., 230, D. 3. & A. 431. - Helps V. Winterbottom, 2 B. ^ Ibid. WHEN TIME BEGINS TO RUN. 23 principal, and to redeliver to him the residue remaining unsold upon demand, but no action will, as a rule, lie either for account or redelivery until demand ; consequently time vsrill not commence in such a case to run in the factor's favour previously to demand.' After a reasonable length of time, however, it seems a jury may presume a demand ; but demand must be either proved or presumed to have been made.^ The question, indeed, seems to depend on one of fact in each case, namely, how soon the factor has commenced to retain his prin- cipal's funds, either actually or constructively, as his own ; in fact, at what time there has been a conver- sion by him to his own use, from which date, even- without demand, time will commence to run in his favour. It was decided in an American case,^ in an action against an attorney for moneys he had collected on his client's behalf more than six years previously to the action, that the action was barred, notwith- standing that no demand had been made till within 1 " Demand must be either where fm-niture had been left proved or presumed,'' per for a time exceeding the statu- Heath, J., in Topliam v. Brad- tory period in a mansion house. dick, 1 Taunt. 572. See Clark In an action to recover it, the V. Moody, 17 Mass. R. 144, demand and refusal being re- where the law of Factors is cent, the Statute was pleaded discussed at length, and Gol- unsuccessfully. lins-^.Benning, 12 Mod. 444. ^ ^ ^^^^_ (Virg.) R. 284; ^ Topham v. Braddick, uhi ^OMWseZ/v. 6ri66s, IBail (S. C), supra. In this case Lawrence, 482. J., said he remembered a case 24 -SIMPLE COITTEACTS. Fail ore of eonsideraticai such six years. And it was intimated that though the attorney could have protected himself from a suit on the ground of absence of demand, yet that the rule was so made entirely for the benefit of the attorney, and that he ought not therefore to be subject all his Mfe to demands, however stale.' Where an annuity granted to a purchaser was invalid against the grantor by reason that the memorial was incomplete under the then existing Annuity Acts, it was held that there were two Void annuity, requisitcs to give a good cause of action to the grantee for the purchase money. Firstly, the pay- ment by him of the money ; and, secondly, the elec- tion by the grantor to take advantage of the defect in the memorial ; and that until both happened the Statute would not commence to run in favour of the grantor.^ The same reasoning would seem applicable to any conveyance void in form or through non- compKance with Statute obligations. Where the purchase money given for an annuity was sought to be recovered by the buyer of the annuity, on the ground that part of the security for the annuity had failed, time was held to have commenced to run in favour of the seller of the annuity from the date of the failure of the security, and not previously from the date of the payment of the purchase money.^ It was held in an American case, where there had Joint pnr- chaseis. ' Stafford V. Richardson, 15 Wend (N.T.) K. 302. ^ Covjper V. Godmond, 9 Bing. 748. ' Huggins v. Coatei, 5 Q. B. 432. WHEN TIME BEGINS TO RUN. 25 been a joint purchase of goods and one of the pur- chasers took the whole goods and agreed to account to the other for his share, or the nett proceeds, that the Statute began to run in the defendant's favour so soon as he had rendered an account of the goods sold.» Time begins to run on a bill or note when the bius and right of action accrues independently of the question whether the action would then be fruitless.'^ On a promissory note, payable at a fixed period after date, time will not commence to run till that date, notwithstanding that the notice is only evi- dence of an account stated.^ Where a promissory note was given to bankers to be delivered to the payee upon his producing and cancelling another note, it was held that the cause of action did not accrue till delivery of the first note to the payee by the bankers,* A cheque is an inland bill of exchange, and if a loan be made by means of a cheque a cause of action does not arise against the debtor till the cheque is cashed. In Carden v. Bruce,^ a cheque for 45Z. was given as a loan to the defendant on the 14th June, 1861. The defendant paid it into his ' Murray Y.Coster, 20 J dhna. lisle, 1 H. Bl. 631; iShort v. (New York) K. 576. McCarthy, 3 B. & Aid. 631. 2 Emery v. Bay, 1 C. M. & ^ Savage v. Aldren, 2 Stark. E. 215 j Byles on Bills. See 232. supra, p. 21. * Carden v. Bruce, L. E. 3 ' Wittersheim v. Lady Gar- C. P. 300. 26 SIMPLE CONl'RACTS. bank on the day following and received credit for it. The defendant having omitted to endorse the cheque, though payable to order, it was returned to him for signature, and was not presented to the plaintiffs and paid by them till the 21st June, 1861. The writ was issued by the plaintiff on the 21st June, 1867. It was held by the Court of Common Pleas, as being too clear for argument, that the Statute was not a bar. The question, according to Keating, J., was, when could the plaintiff have first sued the defendant for money lent ? And he was of the opinion that the plaintiff could not have done so till he had lent the money, which was when the cheque was cashed on the 21st June. Instalments. It scems, according to the decision in Hemp v. Garland,^ that if a bill be made payable by instal- ments, with a provision that if one instalment fail the whole sum shall thereupon become due, the Statute will commence to run from the date of such default. It may be noticed, however, that it might be argued that this is at variance with the well- known rule, that no one is obliged to take advantage of a forfeiture,'^ a point which does not appear to have been noticed in the argument. Usually, when a debt is payable by instalments, time commences to run as regards each instalment at the time when it separately becomes due.^ No debt accrues on a bill payable after sight until ' 4 Q. B. 519. ture and Annuity. ^ See Index, S. C, Forfei- ^ Evans' Pothier, 404. WHEN TIME BEGINS TO RUN. 27 presentment. Therefore the Statute is no bar to an action on such a note unless it has been presented for payment six years before the action, the ex- pressions after date and after sight not being synonymous.* A bill or note, however, payable at sight or on demand is payable immediately, and presentment or demand is not a condition precedent to payment.^ So that the Statute will commence to run imme- diately from the date of the note. A bill or note payable after demand or after notice is not payable till demand made or notice given.' Thus, in Thorpe v. Booth, the Statute was held not to be a bar to an action on a promissory note payable twenty-four months after demand, which had been made long previously but presented for payment within six years before the action was commenced.* At law fraud was no bar to the Statute of Limi- Fraud, tations ; and a special replication of concealed fraud would not suffice to avoid such a plea.^ Thus it ' Holmes v. Kerrison, 2 * Uhi supra. Taunt. 323 ; Sturdy v. Hen- * Brovm v. Howard, 2 Brod. derson, 4 B. & Al. 592 ; Sutr & Bing. 73. This proposition ton V. Toomer, 7 B. ifc C. 416. has, however, been denied. See ^ Byles on Bills, 11 Ed. p. Bree v. Holbech, Doug. 654 ; 342. See, however, note (a) Short v. McCarthy, 3 Barn. & Ibid., and cases there cited. Aid. 626. The question is ^ Thorpe v. Booth, Ryan & considereddoubtfulinAmerica. M. 388 ; Clayton v. Gosling, 5 Angell, 5 Ed. 185. B. & C. 360. tion bills. 28 SIMPLE CONTRACTS. has frequently happened that the owner of a coal miiie has taken coal from an adjoining mine and by fraud prevented it from being found out for more than six years, yet this has been no answer to a plea of the Statute ; but fraud has always been ground of relief in Equity, and it is presumed that now, under the Judicature Acts, 1873 and 1875, it is so also at law.^ Accommoda- On the contract which the law implies on accom- modation bills to indemnify the acceptor the Statute commences to run from and not before his damnifi- cation. " In the ordinary case of an accommodation acceptance the cause of action accrues when the plaintiff is damnified." ^ Similarly, upon a contract to indemnify the plaintiff against costs which he was afterwards called upon to pay, the cause of action was considered to accrue when he paid the costs, not when they accrued, nor when the bill was delivered.^ And generally in the case of a guaranty, when a person is called upon to pay the debt of another, time does not run in that other's favour till the actual payment.* An acceptor may retain money to meet his accep- ' 36 & 37 Vict., c. 66, s. 9 Ex. 99. But see Wehster v. 25; and see Index, c. 6, S. C, Kirk, 17 Q. B. 941 Fraud. ^ Gollinge v. Heywood, 9 A. 2 Per Maule, J., in Reynolds & E. 633. But see Bulloch v. V. Doyle, 1 M. & Gr. 753; Lloyd, 2 Carr. & P. 119. Gollinge V. Heywood, 9 Ad. & ■* AngrovcY. Tippett, 11 L. E. 633 ; Spoor v. Green, L. R. T. N. S. 708, Q. B. WHEN TIME BEGINS TO EUN. 29 tances, although they are barred by a Statute of Limitation.^ In the case of post obit bonds time commences to Torts. run on the death of the person to whose life the charge is subject,^ and generally, where a sum is payable upon a contingency, time begins to run on the happening of the eyent.^ In torts time commences to run from the date of Time runs from wrong doing the misfeasance, not from the time when damage is not from time . • 1 n "^ damage. occasioned. That this is so, and that the period of limitation begins to run from the time and as soon as the injurious act is effected and perpetrated, although the actual injury and damage are subse- quent and could not immediately operate or become known, is laid down as an established principle by an eminent writer.* The rule seems, however, to admit of possible qualification. Thus it has been laid down, both in England and America, that there are cases where, though trover may be brought im- mediately, yet the injured party may bring trespass or trover, or may waive both and bring assumpsit for the proceeds when the property has been con- verted into money ; and that, in the last case, the tort-f&asor cannot allege his own wrong so as to bring time back to the date of the tort,^ but there ' Eerrison v. Williams, 3 ■* Powell's Analysis of Ameri- Carp. 418. can Law, 40. ^ Tuclcey v. Hawldns, 4 C. B. ° Hony v. Hony, 1 Sim. & 655. Stu. 568 ; Lamb v. Clarh, 5 ' Fenton v. Imhlers, 3 Burr. Pick. (Mass. R.) 193 ; Lamine 1278. V. Dorrell, 2 Ld. Eaymond, 30 SIMPLE CONTRACTS. Solicitor's negligence. Howell V. Young. must be some actual conversion.^ However, the general rule seems to be as stated above. Thus, in Battle]) v. Faullcner^ a case of special damage for delivery of bad wheat, Abbott, J., said that it would be extremely dangerous to enquire in every case the precise period of time when damage first came to the knowledge of the plaintiff, and in many in- stances would deprive the defendant of the benefit of the legislation. And, in the same case, Bayley, J., observed that the special damage was merely a measure of damages. The principal rule is illustrated in Whiteheads. Howard,^ where an action was brought against a solicitor who had been guilty of gross negligence. In this case Burroughs, J., observed that the time for bringing an action had long gone by, twelve years having elapsed from the preparation of the insufficient security and six years from discovery of the insufficiency ; but in this case the question was not directly raised. In Howell v. Young* an im- portant case upon the question, the defendant, an attorney, retained by the plaintiff, in the year 1844? then represented to the plaintiff that certain pro- 1216 ; Hitchin v. Campbell, 2 W. Bl. 827 ; Hambly v. Trott, Cowp. 371. ' Jones V. Hoar, 5 Pick. (Mass. K) 285. 2 3 B. & Aid. 288. See Van Sandau v. Corsbie, 3 B. & Aid. 13. ' 2 Bro. 4 Bing. 372 ; and Ibid., p. 73. " 5 Barn. & Cr. 259 : see Fetter v. Beal, 1 Salk. 11 ; Gillon Y. Boddington, 1 R. & M. 161 ; Sims v. Britten, 5 Ex. 802 ; and Crawford v. Gauldem 33 Ga. 173. WHEN TIME BEaiNS TO RUN. 31 posed securities for an advance of a sum of 3000Z. were sufficient. lu the result they proved M'orth- less, but this was not discovered by the plaintiff till the year 1850, after more than six years had elapsed from the making of the security. Interest had in the meantime been duly paid to the plaintiff. In this case, Bayley, J., said, " This is a case of no difficulty whatever. It appears to me that the mis- conduct of the defendant is the gist of the action. If the allegation of special damage had been wholly omitted the plaintiff would have been entitled to a verdict for nominal damages." In a subsequent and somewhat similar case,* where the defendant to a suit in Equity raised the defence of the Statutes of Limi- tations by demurrer, Vice-Chancellor Wigram said that he had endeavoured to ascertain whether the case of Howell v. Young was considered to be law in Westminster Hall, and had found it so considered, and he allowed the demurrer accordingly. It should be noticed that no acknowledgment keeps up the right of the aggrieved party in cases of trespass and trover.'^ If a defendant plead a set-off, the plaintiff may Set-off. reply the Statute, but a set-off is available as a simultaneous cross-action would be, and if it is to be barred at all, must be barred at the time of the commencement of the action. Therefore, when to a plea of set-off the plaintiff replied that the cause ' Smith V. Fox, 6 Ha. 386. ^ Hony V. Hony, 1 Sim. & Stu. 668. 32 SIMPLE CONTRACTS. Owelty of paitition. Agreement to devise. The com- mencement of an action is issuing of a writ. Mistake in Court. of set-off did not accrue within six years of the plea, the replication was held bad.^ In an action to recover, money agreed to be paid for every owelty of partition, it was held in America that time did not begin to run till the making of a legal partition.^ It seems that if a man make an agreement to devise a cause of action will not arise thereon till his death.^ The commencement of an action is the issuing of the writ, and if an action be properly commenced in an Inferior Court and it be then removed into a Superior Court for the purpose of the Statute of Limitation, the action in the Superior Court will be considered to have been commenced at the date of the commencement of the action in the Inferior Court ; not that the second suit is really a continua- tion of the first, but it is rather a matter of indul- gence to the plaintiif who has properly attempted to pursue his remedy.* According to Pothier, though a process before an incompetent judge does not interrupt a prescription, nevertheless, when the question of competence may have been doubtful, the Court, in pronouncing the incompetence of the judge, sometimes refers the ' Walher v. Clevients, 15 Q. B. 1046. " Walter Y. Walter, 1 Whart. (Penn.) K. 292. " Bash V. Bash, 9 Barr. (Penn.) 260. '' Bevin v. Ghapman, 1 Sider- fin, 228 ; Matthews v. Phillips, 2 Salk. 424. But see Manhy Y. Manhy, L. E. 3 Ch. D. 101, cited infra. WHEN TIME BEGINS TO RUN. 33 parties to the proper judge, with a direction requiring him to proceed between the parties, according to the state in which the proceedings were at the time of removing the process.' This doctrine seems consonant with sound sense, and a similar doctrine has in some cases been followed by our Court of Chancery, where it has been held that equity will prevent the bar of the Statute being set up at law in cases where time has run during proceedings in Chancery,'^ but the cases on this point are inconsistent,^ and it is believed that in some recent and unreported cases no such relief has been allowed a plaintiff who has lost his remedy at law while endeavouring to pursue it in equity ; but the question may now, perhaps, be of little import- ance, owing to recent litigation on the fusion of law and equity. In a very recent case,* one J. Manby had become a debtor to the plaintiff for a sum of 1,181^. In- terest was paid up to the date of the debtor's death, on the 19th of March, 1869. Administration was taken out by the defendant on the 28th of April, 1869, and the plaintiff, on the 7th of January, 1875, issued a writ in an action against the defendant, in the Common Pleas. On the 6 th of ' Evans' Pothier, 662. Sirde- Anon., 2 Atk. 1. See also jield V. Price, 2 Y. & J. 73. under Equity. ^ A-non., 1 Vern. 74 ; Sturt * Manhi/ v. Manby, L. R. 3 V. Mellish, 2 Atk. 615. 3 Ch. D. 101. * Lahew. Hayes, 1 Atk. 282 ; 34 SIMPLE CONTRACTS. July, 1875 (after which day the writ would cease to be in force), the plaintiff took out a summons against the defendant for administration of the debtor's estate in Chancery. The administrator pleaded the Statute, and the plea was allowed with costs by Malins, V.-C, who said : — " The administrator says the cause of action, namely, the debt, arose more than six years before the commencement of this suit. The only answer is : Very true, it did occur six years before the commencement of this suit, but we had commenced a suit in another Court. But commencing the suit in another Court is in my opinion only a mode of keeping alive the debt in that particular action. I am therefore of opinion, that though in some sense the debt is kept alive by the writ, it was only kept alive for the purpose of being recovered in that particular Court in which the writ was issued. * * * I am therefore of opinion, that the Statute of Limitations is a complete answer to the claim, and that it there- fore cannot be sustained, and must be dismissed with costs." ACKNOWLEDGMENTS IN GENERAL. 35 CHAPTER IV. ACKNOWLEDGMENTS IN GENERAL. The reason for a statutory bar to claims obviously fails when the existence and justice of such claims are from time to time admitted by the persons against whom they are made. We naturally find, therefore, that, under most Statutes dealing with the subject, a sufficient acknowledgment will suffice, up to the time of such acknowledgment, to exclude the operation of the particular Statute, and, as it is conveniently termed, to " set time running again." And where such provision has not been expressly made in the Statute, Courts, even of Common Law, have found themselves at hberty beneficially to imply such a qualification to the rigour of the Statute. Where there is a statutory bar, and there is a Acknowiedg- ments in statutory exception to that bar by an acknowledg- general, ment of a certain character, the acknowledgment must, to be effectual, be strictly in accordance with the wording of the Statute, and unfortunately in the several Statutes affecting the subject, the require- ments for a sufficient acknowledgment are very various, and, it may almost be said, different in D 2 36 ACKNOWLEDGMENTS IN GENERAL. each. In a case, then, when it is intended to rely upon the fact of an acknowledgment on the part of the defendant, to prevent his taking advantage of the bar of the Statute, it is necessary to consider care- fully under what Statute that bar arose, and the particular wording of the exception provided by that Statute. Thus, under some Statutes an acknowledgment will be sufficient, if it be made by, and to an agent, in others hy, but not to, and in others, again, to, but not hy an agent. Before proceeeding to treat of the various cases in detail it may be well shortly to note the minute but im- portant differences on this head in the various Acts. Different Under 3 & 4 Wm. 4, c. 27, s. 14, an acknowledg- requisites for r i i n i > • i c acknowiedg- meut 01 the lawtul owner s title, so lar as concerns 3 & 4 Wm. 4, any land or rent, must be given to him or his agent, "■ • ■ ■ \)^i not \)j -tl^g giver's agent. Under the same 3 & 4 Wm. 4, Statute, section 40, however, which concerns c. ■/7, ss. 40- ' ' ' *2- charges on lands and legacies, an acknowledgment may be given by the persons to whom such are payable, or his agent, to the person chargeable, or his agents. So that a valid acknowledgment may be given and received in such cases without the personal signature of the principals on either side. And the same is the case as to section 42, which deals with arrears of rent or interest on charges on 3&4Wm 4, land. By section 28, however, of the same Act. c. 27, s. 28. _ •' _ ' ' ' which deals with mortgages, an acknowledgment of the title of the mortgagor must be given to the mort- gagor, or his agent by the mortgagee personally. ACKNOWLEDGMENTS IN GENERAL. 37 By section 5 of the Act, 3 & 4 Wm. 4, c. 42, passed ^ ^J ^^- *> the same year, and dealing Avith specialties, an acknowledgment must be signed by the party liable or his agent, but it is not expressed to whom it is necessary that it should be given, and it may be, that if made to an agent of the covenantee, it would not be within the section. At Common Law where a person authorises R«ie as to signature by another to sign for him, the signature of the person agents in , . „ , , . . general is not SO signmg is the signature of the person authorising applicable. it ; but it is otherwise in cases under the Statute Law, which may require a personal signature.^ And this is so with the Statutes of Limitation. It was held in Hyde v. Johnson,^ that Lord Tenterden's Act (9 Geo. 4, c. 14) must be read in pari materid with the Statute of Frauds, and that upon the con- struction of those Statutes the Legislature must be taken to have intended a personal signature. It must, however, be remembered, that the Common Law rule qui facit per alium facit per se ought not to be restricted, unless the Statute expressly or by neces- sary imphcation requires a personal signature.^ In all cases of acknowledgment it is necessary to ^°^^ ■> . general bear in mind the following requisites ot a sufficient requisites of . an acljnow- acknowledgment, and to consider whether they are ledgment. ' Per Blackburn, J., in Justices of Kent, uhi supra. See Queen v. Jtistices of Kent, L. R. Toms v. Cuming, 7 M. & G. 8 Q. B. ,307. 88; Sivift v. Jewshury, L. R. ■" 2 Bing. N. C. 776. Q. B. Ex. Ch. 301. ^ Per Quain, J., in Queen v. 38 ACKNOWLEDGMENTS IN GENERAL. to be found in tlie particular case. These general requisites are as follows, viz. : — 1. The acknowledgment made must be in terms sufficient. 2. It must be made by the proper person. 3. It must be made to the proper person. 4. It must be made with the proper formalities (such as signature in writing), if any. And further, in cases affecting real property, where the right and not the remedy alone is destroyed, it must be seen that the acknowledgment is made before time has finally run in favour of the maker, so as to have made to him a statutory transfer of the property before his acknow- ledgment, in which case such an acknowledgment vyill be of no avail to the original lawful owner. Having premised thus much generally as to acknowledgments, we shall proceed to consider separately the questions arising on the several Statutes of Limitation in respect of this point. As the rule in each Statute varies, it will be necessary, for the most part, to consider each by itself; though in fact decisions made upon one Statute may be often applicable to the consideration of another. SIMPLE CONTRACTS — ACKNOWLEDGMENTS. 39 CHAPTER V. SIMPLE CONTRACTS — ACKNOWLEDGMENTS. Although the Statute of James does not contain Acknowiedg- any exception in case of acknowledgments of in- admitted to debtedness by the debtor, yet the judges early read statute ; such an exception into that Statute. There has been a considerable change of opinion as to the exact nature and bearing of acknowledgment in cases under this Act. At first it was necessary in the opinion of the a* fi^^* . strictly ; Courts that an acknowledgment, amounting to very nearly an express promise to pay, should be given in order to avoid the effect of the Statute.^ Indeed, in one case, PoUexfeu, C.J., went so far as to sug- gest that not only was a new promise required, but that it must be founded upon a new consideration.'^ Subsequently greater laxity prevailed. The prin- then with greater ciple of the rule of acknowledgment was mistaken, laxity, due to . Ill mistaken and it was supposed to rest upon the rebuttal theory of ac- afforded thereby of the presumption of payment of the debt, and not upon any renewal of the promise ' Bass V. Smith, 12 Vin. Fortescue, 177. Abr. 229 ; Lacon v. Briggs, 3 ^ Bland v. Haselrig, 2 Ven- Atk. 105; Williams v. Gun, tris, 151. 40 SIMPLE CONTEACTS. to pay. In this way any admission of a debt was sufficient to avoid the effect of the Statute, however indirect, and even if accompanied with an expression of intention not to pay.^ In Bryan v. Horseman, a note of change was sounded by Ellenborough, C.J., who, in deciding that he was bound by previous authorities to follow the laxer rule, yet expressed an opinion that were the subject res Integra, the matter might not be free from doubt. On the disadvantage of a too liberal extension of a doctrine of acknow- ledgment the following remarks were made by Gibbs, C.J., in Helling s v. Shaw^ "I agree that if the Courts could retrace their steps, and could recall the consequences that have arisen, they would have seen it better to adhere to the precise words of the Statute than to attempt to relieve in particular cases." Theory of m- The doctriue of acknowledgment applies only to mentsdonot cases fouudcd upon assumpsit. If the gist of an app y 01 s. g^j^^jpj^ jg ^^ injury committed by the defendant, and the right of action is once barred by time, it is im- possible to revive it by admission of indebtedness ; and in the case of torts no acknowledgments will suffice to avoid the express words of the Statute. ' ^ryamv.-fforsgman, 4 East, Mountstephen Y.Brooke, 3 B. 599 ; Frost v. Bejigough, 1 & Aid. 41 ; Scales v. Jacob, 3 Bing. 266; CZarA V. -ffoM5'Aa?7i, Bing. 688; Partington v. 2 B. & C. 149 ; Leader v. Butcher, 6 Esp. 66. Tattmi, 16 East, 420 ; Dowth- ^ 7 Taunt. 608. waite V. Tibbut, 5 M. & S. 75 ; ACKNOWLEDGMENTS. 41 Thus a promise to make compensation for a trespass committed in illegally taking away coals in a coal mine, was not sufficient to revive the cause of action.^ This doctrine, together with the present received doctrine as to the theory of acknowledg- ments, namely, that an acknowledgment, to be effectual, must amount to a fresh promise to pay, is well shown in the judgment of Tenterden, C.J., in Tanner v. Smart.^ "It is only in actions of assumpsit," said his lordship, " that an acknowledg- ment can be held an answer ; and when, in the case of Hurst v. Parker, it was decided to be inap- plicable to actions of trespass. Lord Ellenborough gave, what appears to be the true reason, that in assumpsit ' an acknowledgment of the debt is evi- dence of a fresh promise,' and that promise is considered as one of the promises laid in the declara- tion, and one of the causes of action which the declaration states. If acknowledgment had the effect Tanner v. T • • en n -i Smart. which the cases m the plamtiii s favour attribute to Doctrine of it, one would have expected that the replication to a ment is not plea of the Statute could have pleaded the acknow- presumption ledgment in terms, and relied upon it as a bar to Lf on"impiied the Statute, whereas the customary replication, ever "^^ p™™'^^- since the Statute, to let in evidence of acknowledg- ment, is that the cause of action accrued (or the defendant made the promise) within six years. And the only principle upon which it can be held to be ' Hurst V. Parker, 1 Barn. ^ See 6 Barn. & Cr. 603, &Ald. 92. 605. 42 SIMPLE CONTRACTS. Cross an answer to the Statute is this, that an acknow- ledgment is evidence of a new promise and, as such, creates a new cause of action, and supports and estabhshes the promises which the declaration states. Upon this principle, wherever the acknowledgment supports any of the promises in the declaration, the plaintiff succeeds ; where it does not so support them, (though it may show clearly that the debt never has been paid, but is still a subsisting debt), the plaintiff fails." Acourt V. A crucial test at length arose in the case Acourt v. Cross} In that case the defendant had made an admission in the following terms : — " I know that I owe the money, but the bill I gave is on a three- penny stamp and I will never pay it." The decision in the case, which was in favour of the defendant, practically overruled a large course of intermediate decisions, and returned to something nearly approach- ing the strictness of the primitive construction of the Act. Best, C.J., in giving judgment, remarked, " I am sorry to admit that the Courts of Justice have been deservedly censured for their vacillating deci- sions on the 21 James 1, c. 16. When by distinc- tions and refinement which. Lord Mansfield says, the common sense of mankind cannot keep pace with any branch of the law is brought into a state of un- certainty, the evil is only to be remedied by going back to the Statute." However, it is not wholly 1 3 Bing. 329. ACKNOWLEDGMENTS. 43 correct to say that an acknowledgement revives the previous debt. It rather, as has been seen, creates a new debt by virtue of an implied promise, yet it does none the less to a certain extent revive the previous debt so far as is sufficient to make it a good consideration for the new promise. The present doctrine on the subject was explained Phuiips ». . . . Phillips. with admirable clearness by Wigram, V.-C, in the case of Phillips v. Phillips,^ as follows: — "The legal effect of an acknowledgment of a debt barred by the Statute of Limitations is that of a promise to pay the old debt, and for this purpose the old debt is a consideration in law. In that sense and for that purpose the old debt may be said to be revived. It is revived as a consideration for a new promise. But the new promise and not the old debt is the measure of the creditor's right. If a debtor simply acknowledges an old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient considera- tion. But if the debtor promises to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor can claim nothing more than the promise gives him." It may now be said that the theory of acknow- Present theory, ledgment is settled in a fairly satisfactory manner as to simple contracts on the principle that there is re- quired either an express promise to pay the debt or an absolute admission of indebtedness from which a ' 3 Ha. 281, 300. 44 SIMPLE CONTRACTS. promise to pay may naturally be inferred/ wliich new promise is sufficiently supported by the consi- deration of the past debt.'* What amounts Having premised therefore that a clear admission to an aoknow- r ii,- -i -p i,,i r ledgment. 01 a debt IS evidencc, it unrebutted, ot a new pro- mise to pay sufficient to avoid the Statute, it follows that three questions will usually arise as to any al- leged acknowledgment. Firstly, is there an ad- mission of the debt in question. Secondly, if there is such admission, is it narrowed by any qualifica- tion which rebuts the presumption of a promise or subject to any condition on the fulfilment of which the implied promise is defendant. And thirdly, if there be such a condition, whether it has been satis- fied. On the first question it seems that there is considerable liberality in construing a reference to a debt as an admission. Thus, where the admission was in the following terms, " I am ashamed the ac- count has stood so long," it was held to be a good acknowledgment.^ In Edmonds v. Goater* the debtor wrote as follows : — " I hope to be in Hamp- shire very soon, when I trust everything will be ar- ranged with W. (the creditor) agreeable to her wishes," and this was held a sufficient acknowledg- ment. And in the recent case of Quincey v. Sharpe,^ the two following letters written by the ' Smith Y. Thome, 18 Q. B. ^ Cornfnrth v. Smithard, 5 134, 143. H. & N. 13. 2 Phillips V. Phillips, ubi " 15 Beav. 415. supra. ' W. N. 1876, p. 72. ACKNOWLEDGMENTS. 45 defendant were held sufBcient to prevent the opera- tion of the Statute, though in fact, no account was sent in in compliance with the request in the letters. The letters were as follows : — January 13, 1872. " Me. Quincey, " Sir, — I shall be obliged to you to send in your account made up to Christmas last. I shall have much work to be done this Spring, but cannot give further orders until this be done. " I am, Sir, " Your humble servant, "J. Sharpe." February 19, 1872. '• Mr. Quincey, " Sir, — You have not answered my note. I again beg of you to send in your account as I particularly require it in the course of this week, "To oblige, Sir, " Yours, &c., " Jno. Sharpe." Thus, an admission of the debt will be sufficient, although the exact amount payable is disputed, or remains to be proved.* ' Golledge v. Horn, 3 Biug. 2 H. & N. 306 ; and see 119; Gardners. M'Mahon, 3 infra. Q. B. 561 ; Sidwell v. Mason, 46 SIMPLE CONTRACTS. Qualified or conditional acknowledg- ment. Secondly, it is to be considered, in case there is an admission of indebtedness sufficient to amount to an acknowledgment, whether that admission is nar- rowed in such a way by the contest as to exclude the presumption of a promise of payment either entirely or except in a particular manner, or upon fulfilment of some condition. In Hart v. Prendergast,^ Parke, B., remarked as follows : — " An unconditional ac- knowledgment is good for that purpose {i.e. to prove a promise) because you would infer from it that the party meant to pay on request. But if he annexes any qualification or condition, that is not a sufficient acknowledgment without proof of the performance of it." In Buckmaster v. Russell,"^ the defendant had written as follows : — " I have received a letter from Messrs. P. and L., solicitors, requesting me to pay you an account of £40 9s. 6d. I have no wish to have anything to do with the lawyers ; much less do I wish to deny a just debt. I cannot, however, get rid of the notion that my account with you was settled in 1851 ; but as you declare it was not set- tled, I am willing to pay you 10/. per annum until it is liquidated. Should the proposal meet with your approbation we can make arrangements accordingly." This was held insufficient, Willes, J., observing that it did not amount to a promise till the terms the de- fendant proposed were assented to. > 14 M. & W. 741. 2 10 C. B. N. S. 749. See Fearn v. Leivis, 6 Bing. 349 ; Cawley V. Furnell, 12 C. B. 291, 20 L. J. C. P. 197. ACKNOWLEDGMENTS. 47 However, in Collis v. Stack'^ an acknowledgment in the terms following was held good without any proof of assent. " I shall repeat my assurance to you of the certainty of your being repaid your generous loan. Let matters remain as they are for a short time longer and all will be right. The works I have been appointed to, but they are not yet worked with the full complement of labour ; this term will decide the matter." Where a defendant, called upon by a creditor, holder of two promissory notes more than six years over due, for a statement of his affairs, made out an account in which the notes were inserted as a debt to which he was liable, it was held to be a sufficient acknowledgment by the debtor.'^ If a defendant accompanies his acknowledgment Conditional . aclcnowledg- with a promise to pay upon any condition, proof .of ment. the fulfilment of the condition will be necessary. For instance, if he promises to pay when he is able, or use some similar expression, proof of the defen- dant's ability will be required.^ In a recent case the defendant had written to one of the plaintiffs as follows : — " My dear sir, the old account between us, which has been standing over so long, has not escaped our memory, and as soon as we can get our affairs arranged we will see you are paid ; perhaps, in the meantime, you will let your clerk send me an account of how it stands." ' 1 H. & N. 605. ^ Tanner v. Srnart, 6 B. & ^ Holmes v. Mackrell, 3 C. C. 603 ; Scales v. Jacob, 3 B. N. S. 789. Bing. 638. 48 SIMPLE CONTRACTS. It was con tended for the defendant that the letter did not take the case out of the Statute, the tune limited by which would otherwise have run. It was, however, held on an appeal by a majority in the Exchequer Chamber (Lord Coleridge, C.J., dissent- ing), that the promise in the letter was sufficient.' In another recent case, where there i was in effect a promise to pay on alternative conditions, forbearance to sue was said to be sufficient evidence of the acceptance of one condition by the plaintiff.'^ And a promise to pay in a particular manner will not revive the debt generally.^ Conditional on When tlicrc was an agreement signed by certain arbitration. persons to refer accounts between them to arbitra- tion, and the arbitrators were empowered to ascer- tain by their award what was due and payable, and to order the same to be paid at such time, and in such proportion as the arbitrators should think fit, it was held on the arbitration proving abortive that the agreement only amounted to a conditional pro- mise to pay the amount found due by arbitration, and that as the condition was unfulfilled there was no effectual acknowledgment.* Qualified ac- As au acknowledgment of a debt simply avoids kaowledgment. ' Chasemore v. Turner, L. J. Ex. 138. E. 10 Q. B. 500. See Smith ^ Wilby v. Elgee, L. R. 10 V. Tliorne, 18 Q. B. 143; 21 C. P. 497, 501. L. J. Q. B. 201; Sidwell v. ' Gawley v. Furnell, 12 C. Alason, 2 H. & N. 306, 310; B. 291. 2G L. J. Ex. 407 ; Collis v. ■* Hales v. Stevenson, 9 Jur. Stach, 1 H. & N. 605 ; 26 L. N. S. 300. ACKNOWLEDGMENTS. 49 the Statute by the implication it affords of a new promise, an acknowledgment, though otherwise suffi- cient if made obviously on some other account, may be held insufficient.' Thus in one case it was so held, where the acknowledgment consisted in the fact that a surety had written to authorize the creditor to receive a dividend upon his debt from the prin- cipal debtor.'^ Where an acknowledgment has been given fol- ^°p^ *" P*y- lowed by an expression of " hope " that the debtor will satisfy his debt, it has often been doubted how far that expression has cut down the implied pro- mise.' On this point Bramwell, B., made the fol- lowing observations in Sidwell v. Mason, " It seems to me a mistake has been made in several cases with respect to the expression of hope in holding, that because along with an unconditional acknowledg- ment of a debt a man expresses a hope to be able to do that which he is legally obliged to do, such an acknowledgment is not sufficient."* In Lee v. Wilmot ^ the defendant had written to his creditor as follows : — " Your letter has reached me at last, after having been half over England. It is quite true that I have not sent you any money for years, but I really have none of my own. We just ' Cripps V. Davis, 12 M. & M. & W. 741 ; Rackliam v. W. 159. Marriott, 2 H. & N. 196 ; 2S 2 Gockrill V. SparTces, 1 H. & L. J. Ex. 315. C. 699 ; 32 L. J. Ex. 118. ^ 2 H. & N. 310. ' Hart V. Prendergast, 14 ^ L. E. 1 Ex. 364. 50 SIMPLE CONTRACTS. manage to exist on my wife's, or at least what'is left of hers. We have hard work to get on, but I will try to pay you a little at a time if you will let me. I am sure that I am anxious to get out of your debt. I will endeavour to send you a little next week." This letter was held by a majority of the Court of Exchequer (Martin, B., dissenting), to be a sufficient acknowledgment. Refusal to pay. Where an admission of a debt is accompanied with a distinct refusal to pay, the implication of a promise arising from the acknowledgment is of course rebutted.* Thus even under the old theory (and d fortiori the case would be so still more now,) an admission as follows : — " T cannot afford to pay my new debts much less my old ones," was held insufficient.^ Objection on Again, if an acknowledgment be accompanied with an objection to payment, which would if valid have been at any time a good defence to an action, no presumption of a promise of payment will be raised. Thus an admission of a debt made to a person, who at the same time signed a paper im- porting to release it, was not sufficient to avoid the Statute, although the discharge was inoperative, and was indeed conditional upon an act of the defen- dant which he failed to perform.* Similarly an 1 Lee V. Wilmot, L. R. 1 E. 179. Ex. 364 ; Brigstocke v. Smith, ^ Goate v. Goate, 1 H. & N. 1 C. & M. 483. 29. ^ Knott V. Farren, 4 D. & ACKNOWLEDGMENTS. 51 acknowledgment as follows : — " I acknowledge the receipt of the money, but the testatrix gave it me," was held inoperative.^ But if a defendant acknow- ledges a debt, but insists at the same time on a set off, his acknowledgment is it seems none the less effectual.'* And again an admission in the following terms : Promise not to ,„ „ plead Statute. — I do not wish to avail myself of the Statute of Limitations " was held insufficient.^ Usually, perhaps, where there is a promise not to plead the Statute, there will be found in the context something further which will amount to an acknowledgment of indebt- edness whence a promise to pay may be implied ; but in absence of such context it seems on the authority of the cases cited, and upon a strict application of the present theory as to the principles of the doctrine of acknowledgment, that a promise not to take ad- vantage of the Statute will have no efficacy in itself as an acknowledgment of a debt. Such a promise, howsoever, where it is supported by a consideration, and is not a mere nudum pactum, may amount to an agreement, for the breach of which damages may be recovered.* And it must be borne in mind, that if ' Owen V. WooUei/, Bull. N. M. P. C. C. 85. lu this case P. 168; and see Be la Torre it is distinctly laid down by V. Barclay, 1 Stark. 7. Lord Campbell that there ^ Leland v. Murphy, 16 Ir. might be an agreement that Ch. E. 500. in consideration of an inquiry ' Rackham v. Marriott, 2 into the merits of a disputed H. & N. 196. claim, no advantage should be ■• East India Go. v. Paul, 7 taken of the Statute of Limi- E 2 52 SIMPLE CONTRACTS. the promise not to take advantage of the Statute be made within six years, and while the debt is still recoverable, the forbearance to sue will be itself a sufficient consideration. It may, however, be argued that any such promise must be disregarded as frus- trating the policy of the Statutes, and as being con- trary to the rule that prescription cannot be renounced in advance. Promise not to It might, indeed, at first sight seem that a promise not to take advantage of the Statute amounted prac- tically to a promise to pay the debt in question. And in Gardner v. MMakon'^ where the promise was in the terms following : — " As you have men- tioned the Limitations Act I answer at once that I am ready to put it out of my power to take advan- tage of the Act ; " it seems (though the case may have been decided upon other grounds,) to have been so considered. It is obvious, however, that a pro- mise not to plead the Statute in an action is not in- consistent with an intention to defend the action upon its merits. And thus we find that a promise in the following terms has not been held sufficient : " I hereby debar myself of all future plea of the Statute." 2 Amount of It is uot ncccssary in order to make a binding be st^ttd. ''° acknowledgment that the exact sum due should be tations in respect of time em- agreement. ployed in the enquiry, and ^ 3 Q. B. 561. that an action might be ° ^Yaters v. Earl of Thanet brought for breach of such 2 Q. B. 757. ACKNOWLEDGMENTS. 53 stated and acknowledged. An acknowledgment that some debt is due is sufficient,^ and parol evidence may be received to prove the amount, and to prove the meaning of such words as " bill" or " balance " if used in such an acknowledgment.'^ In Golledge v. Hyrn ' the defendant had written in reply to a letter of the plaintiff as follows : — "I have received yours respecting Mr. Thomas Colledge's demand ; it is not a just one. I am ready to settle the account when- ever Mr. T. C. thinks proper to meet me on the business. I am not in his debt 90?., nor anything like that sum ; shall be happy to settle the difference by his meeting me in London or at my house." And this was in accordance with the theory, above stated) held to be sufficient acknowledgment. In Cheslyn V. Dolby '^ a deed executed by A. and B. recited that A. was indebted in various sums of money, the amount of which was not yet ascertained, nor a bal- ance struck ; and that A. was willing to pay B. the amount which might appear due to B. in respect of such sums, such amount to be ascertained and paid as therein mentioned, and the deed afterwards pro- vided for taking the accounts by the arbitration of two persons named in the deed ; and it was held that, notwithstanding the clause as to arbitration, ' Colledge v. Horn, 3 Bing. 3 Ex. 335. 119 ; Lechmere v. Fletcher, 1 ' Dickinson v. Hatfield, 1 C. & M. 623. But see contra. Moo. & R. 141. S^img V. Wright, 9 M. & W. ' Ibid. 629 ; and Williams v. Griffiths, ' 4 Y. & C. 238. 54 SIMPLE CONTRACTS. the recital amounted to an absolute promise to pay the amount when ascertained ; and that, when coupled with external parol evidence as to the amount, there was a sufficient acknowledgment to avoid the bar of the Statute. Lord Tenter- It is uow necessarj to notice the important and tions 1 ° 2, 3!°' well-known Act of 9 Geo. 4, c. 14, commonly re- i, & 8. ferred to as Lord Tenterden's Act. This Act renders writing necessary to an effectual acknowledgment in cases under the Statute of James, and the kindred Irish Act. Notwithstanding that the Act contains a recital that various questions have arisen as to the proof and effect of acknowledgments, it has been de- cided that practically the Act is to be construed as altering the mode of proof only, not the legal con- struction of acknowledgments or promises. The Act enacts as follows : — " 1. That in actions of debt or upon the case grounded upon any 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 said enactments or either of them, or to deprive any party of the benefit thereof, unless ^uch acknowledgment shall be made or con- tained by or in some writing to be signed by the party chargeable thereby ; and that where there shall be two or more joint contractors, or executors, or administrators of any contractor, no such joint con- tractor, executor, or administrator shall lose the benefit of the said enactments, or either of them so acknowledgments; 55 as to be chargeable in respect, or by reason only of any written acknowledgment or promise made and signed by any other or others of them : Provided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatso- ever : Provided also, that in actions to be com- menced against two or more such contractors, or executors, or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited Acts or this Act as to one or more of such joint contractors, or executors, or administrators, shall nevertheless be entitled to re- cover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise judgment may be given and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. " 2. And be it further enacted, that if any de- fendant or defendants in any action or any simple contract shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the said trial that the action could not by reason of the said recited Acts or this Act, or either of them, be maintained against the other person or persons named in such plea or any of them, the issue joined on such plea shall be found against the party pleading the same. 56 SIMPLE CONTRACTS. " 3. And be it further enacted, that no indorse- ment or memorandum of any payment written or made after the time appointed for this Act to take effect upon any promissory note, bill of exchange, or any other writing by or on behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of either of the said Statutes. " 4. And be it further enacted, that the said re- cited Acts or this Act shall be deemed and taken to apply to the case of any debt or simple contract al- leged by way of set-off on the part of any defendant either by plea, notice, or otherwise. " 8. And be it further enacted, that no memorandum or other writing made necessary by this Act shall be deemed to be an agreement within the meaning of any Statute relating to the duties of stamps." Lord Tenter- This Act docs uot alter or affect the law as to aite'imodrof '^^^^ amouuts to a sufficient acknowledgment; it proof. simply renders writing necessary as a means of proof. In Haydon v. Williams,^ Tindal, C.J., in giving the opinion of the Court of Common Pleas on the construction of this Act said as follows : — " The Statute does not intend, as it appears to us, to make any alteration in the legal construction to be put upon acknowledgments or promises made by de- fendants, but merely to require a diiferent mode of ' 7 Bing. 163-66. And Godwin v. Culley, 4 H. & N. see, ;jer Pollock, C.B. in 373. ACKNOWLEDGMENTS. 57 pi'oof ; substituting the certain evidence of a writing signed by the party chargeable for the insecure and precarious testimony to be derived from the memory of witnesses. To inquire, therefore, whether in a given case the written document amounts to an ac- knowledgment or promise is no other inquiry than whether the same words, if proved before the Statute to have been spoken by the defendant would have had a similar operation and effect." It appears" also that the words " promise or acknowledgment " in the Act mean the same thing.' The terms of a lost ac- knowledgment in writing may be proved and the acknowledgment supported by parol evidence.^ It results from the existing theory of acknowledg- Acknowledg- ments that an acknowledgment after action brought action. will be of no use. Thus in Bateman v. Finder,^ after proceedings were commenced, a part payment was made by the defendant on account of the debt, but it was held to be inoperative to avoid the effect of the Statute. The question whether a written acknowledgment whether suf- . . ficiency of ac- is sufficient to amount to an absolute promise to pay, knowiedgment is a question in itself for the decision of the Court, not that of the jury.* Where, however, a document of doubtful construction put in evidence to avoid the ' Lee V. Wilmot, L. R. 1 Ex. been held when the old theory 364-67. prevailed. See Yea v. Four- ^ Haydon v. Williams, X aher, 2 Burr. 1099. Bing. 168. ■* Routledye v. Ramsay, 8 A. 3 3 Q. B. 574. The con- & E. 221. trary would probably have 58 SIMPLE CONTEACTS. plea of the Statute has to be explained by consider- ing extrinsic facts, then the question is one for a jury to decide.^ The writing must now bear the actual signature of the person to be charged. It is not sufficient if simply in his handwriting.^ Bat where a whole document is in the handwriting of a person, his What may be uamc at the top is a sufficient signature.^ Although parol. a document signed- is now necessary to avoid the Statute, yet the date (if wanting) of such an acknow- ledgment may be supplied by parol evidence.* In the same way the name of the creditor to whom the debt is owing may be supplied by parol.* The identity also of a debt acknowledged in writiijg may be proved by parol. In Shortrede v. Cheeh^ the defendant had written, " I will pay the promis- sory note," and it was held that the onus of proving the existence of more than one promissory note, to which the writing might refer, was upon the person disputing the debt. And a promissory note, though * Morrell v. Frith, 3 M. & ever, in Hartley v. Wliarton "W. 402. (11 Ad. & Ell. 934), the case * Bayley v. Ashion, 12 Ad. of Edmonds v. Downes was & EIL 493. cited by the Coui-t as an ' Holmes v. Mackrell, 3 C. authority for the proposition B. N. S. 789. in the text. See also Leclt- * Edmonds v. Dovmes, 2 Cr. mere v. Fletcher, 1 C. & M. & M. 459, 463. According to 623. another report of the same ' Hartley v. Wharton, 11 case (4 Tyr. 179), the point Ad. & Ell. ; 2 M. & W. 141. was treated as doubtful. How- ^ 1 Ad. k E. 57. ACKNOWLEDGMENTS. 59 unstamped, and therefore invalid in itself, may be used as evidence to prove the identity of a debt alleged to be acknowledged.* Previously to Lord Tenterden's Act an admission By whom the acknowledg- by an agent of the debtor was equally, with that of ment must be the debtor himself, sufficient to avoid the Statute. Subsequently to the passing of that Act it was held, upon the construction of the Statute, that an admis- sion, to be effectual, must be made personally by the person to be charged thereby.^ Now, however, it is enacted by the Mercantile Law Amendment Act (19 & 20 Vict., c. 97, s. 13), that an acknow- ledgment shall be sufficient if signed by an agent duly authorised to make such acknowledgment. Thus the case-made rule which existed previously to Lord Tenterden's Act, after having been abrogated by one Statute has been restored by another. And the cases accordingly decided before Lord Tenter- den's Act as to what constituted a sufficient agency for the purpose are still of use. In Burt V. Palmer,^ an agent was employed to what is an (. , , 1 ,1 1 • 1 authorised pay money tor work done, and the workmen, with agent. his consent, were referred to him for payment. It was held, that an acknowledgment or promise to pay by him after six years was sufficient to take the case out of the Statute. ' SpickernellY. HotlMm,Kiij, W. 321. And see Gibson v. 669. Bagliott, quoted at Whippy v. ^ Hyde v. Johnson, 3 Scott, Hillary, 5 Car. & P. 209. 289; Fott V. Glet/g, 16 M. & '" 5 Esp. 145. 60 SIMPLE CONTRACTS, And in Williams v. Innes^ Lord Ellenborougli lays down the general rule, that if a man refers another upon any particular business to a third person, he is bound by what this third says or does concerning it as much as if that had been said or done by himself. And an admissiun by a wife who was accustomed to conduct the business of her husband was held sufficient to take the case out of the Statute in an action against the husband.^ And where goods were supplied to a wife usually living apart from her husband, for her own use, she was considered to be her husband's agent for the purpose of making an acknowledgment.^ A married woman cannot effectually acknowledge a debt contracted dum sola.* To third per- Previously to the passing of Lord Tenterden's Act, and while the " presumption " theory of acknow- ledgment still prevailed, it was unnecessary for an acknowledgment, to be effectual, that it should be made to the creditor himself or to his agent.* The passing of Lord Tenterden's Act, on a proper con- struction of the Act, does not affect the question. " There is no doubt," says Pollock, C.B., in Godwin ' 1 Camp. 364:. ° Peters v. Brown, 4 Esp ^ Anderson v. Sanderson, 46 ; Glarh v. Hougham, 2 B Holt, N. P. 591. & C. 149 ; Mountstephen v ^ Gregory v. Parker, 1 Brooke, 3 B. & Aid. 141 Camp. 394. Halliday v. Ward, 3 Camp * Pittam V. Foster, 1 Barn. &, 32. Cr. 248. son. ACKNOWLEDGMENTS. 61 V. Culley,^ " as to the proper construction of 9 Geo. 4, 0. 14, viz., that what would formerly have taken a case out of the Statute of Limitations, if the acknowledgment had been by word of mouth, is now sufficient if the acknowledgment is in writing." The Act then does not affect the rule on this point- The change, however, in the theory of acknowledg- ment, dating from the case of Tanner v. Smart, before referred to, and by virtue of which something equivalent to a new promise to pay is required, may affect the question. The question then now is, whether a promise to a To thM per- creditor to pay him can be implied from an acknow- ^°°' ledgment made to another person. And it may be mentioned that, previously to Tanner v. Smart, it has been pointedly so laid down more than once by the Court ; although, inasmuch as under the then prevailing theory a new promise was not necessary, these opinions may be of the nature of obiter dicta, and not necessary to the decision in each case. Thus, in Mountstephen v. Broohe, where, in a deed made between the defendants and a third person, admission was made by the defendants of a debt due to the plaintiffs, who were wholly strangers to the deed, it was held sufficient to avoid the operation of the Statute ; and Abbott, C.J., said that the legal effect of an acknowledgment (even though made to a stranger) was itself to raise a promise to pay.'^ ' 4 H. & N. 373. And see, v. Williams, 7 Bing. 166. per Tindal, C.J., in Haydon ^ 3 g & Aid. Ul. 62 SIMPLE CONTRACTS. son. To third per- Again, in Ealliday v. Ward,'^ where the defendant, a Quaker, wrote to his father, who was a co-obligor with him on a promissory note, as follows : — " With regard to Halliday's money, thou must settle it thy- self," Lord Ellenborough said that the letter ac- knowledged the existence of the debt, and that the promise to pay (although the debt was not acknow- ledged to the plaintiff) was raised by law. So, in Clark V. Hougham^ an admission to one of the several parties was held to enure for the benefit of all for the purpose of the Statute of Limitations ; and though it was suggested that the admission was made to one as the agent of the others, it was ex- pressly stated by Bayley, J., that agency was not necessary to be proved. So far it might seem that as well under the new theory of acknowledgment as under the old, an admission to a third person would be sufiScient ; as it might be gathered from the judicial remarks above quoted, that a promise to pay a creditor may be implied from an admission not made to him personally. There arCj however, a large number of more recent judicial decisions, or rather^ perhaps, of judicial remarks, on the other side. Thus in Godwin v. Culley"^ Martin, iB., distinctly laid down that an admission to a third person is not sufiicient for the purpose, and Bramwell, B., ex- pressed a similar opinion. And again in Grenfell • 3 Camp. 32. => 4 H. 10 Ex. 333. payment. ACKNOWLEDGMENT BY PART PAYMENT. 73 was calculated. The plaintiffs son then put his hand into his pocket, as if to get out the money to pay it. The plaintiff stopped him, and, writing a receipt for the money, gave it to his son's wife, saying he would make a present of it to her. It was held, by a majority of the Court of Exchequer, Bramwell, B., dissenting, that the transaction was sufficient to take the case out of the Statute of Limitations. The true test as to what transactions will amount to a part payment for the purposes of avoiding the Statute of Limitations appears from the judgment in Maber v. Maber, as well as from other cases.^ Thus it may broadly be laid down that any facts which would prove a plea of payment of in- terest or principal in an action brought to recover either would amount to a payment sufficient to bar the Statute. And Bramwell, B., in dissenting from the opinion of the majority in Maber v. Maber, did so on the ground that in his judgment the facts would not have supported such a plea of payment. Further, if by agreement money is paid by a debtor on behalf of his creditor to a third person, that may be a sufficient part payment as between the debtor and creditor.^ Where a debtor has given a bill on account of his Part payment . . by Mil. debt, some diificulty has arisen as to the effect of it as a part payment, especially if it turn out ultimately ' Bodger v. Arch, 10 Ex. ^ Worthingtonw. Grimsditch, 333 ; Amos v. Smith, 1 H. & C. 7 Q. B. 479. 238. 74 SIMPLE CONTRACTS. worthless. On this point it may be observed that payment is taken in the popular use of the term to include a giving and taking of a negotiable instru- ment on account of a debt, as well as a giving and taking it in satisfaction of a debt.' A bill is con- ditional payment, and its imniediate operation as an acknowledgment of a balance demand is not to be affected by its operation as a payment being liable to be defeated at a future time ; and even if it is worthless, the intention and the act by which it is evinced remain the same.** A question arises, when a bill is given in part payment of a debt, whether the part payment must be considered made at the time of the delivery of the bill, or of payment thereof On this point it has been decided that when a debtor draws a bill of exchange to be applied in part payment of a debt, and the bill is paid when due by the drawee to the creditor, it operates as a part payment from the time of the delivery of the bill by the debtor, not from the time of the payment.^ Indorsements Indorsements by a creditor on a bill or note ad- 011 M^r^"^ mitting payments of interest or principal, if made before the debt was barred, were formerly after the creditor's death evidence for the purpose of avoiding the plea of the Statute; the principle of their admis- sion as evidence being that they were acknowledg- ' Turneij v. Dodivell, 3 Ell. =* Irving v. Veitch, 3 M. & & Bl. 136. W. 90; Gowan v. Forster, 3 ^ Per Campbell, C.J,, Ibid. B, & A. 507. ACKNOWLEDGMENT BY PART PAYMENT. 75 ments made against the interest of their maker.' It was otherwise if the indorsements were made after the debt was ah'eady barred as the principle did not then apply. And now it is enacted by section 3 of Lord Ten- terden's Act that " no indorsement or memorandum of any payment written or made after the time ap- pointed for this Act to take effect upon any promis- sory note, bill of exchange, or other writing, by or on behalf of the party to whom such payment shall be made shall be deemed sufficient proof of such payment so as to take the case out of the operation of either of the said Statutes." It is x'emarked in Bradley v. James^ by Maule, C. J., that this section only applies to the case where there is nothing more than an indorsement or memo- randum on the note or bill or other writing which constitutes the contract declared on. And it appears from the same case that the memoranda made against their own interest of dead persons in ledgers, account books, and otherwise, may still be used as evidence for the present purpose. Part payment by an agent of the debtor is as By agent. effectual in regard to the Statute Law of Limitations as by the principal ; but the agency must be proved ' Per Lord Ellenborougli, M. & G. \1;Glead(ywN. Ailcin, in Higham v Rid-gway, 10 1 Cr. & M. 421 ; Searle v. East, 109. Barrington, 8 Mod. 278. 2 Briggs v. Wilson, 17Beav. ' 13 C. B. 822. 330 ; «S'. G. on appeal, 5 D. G. 76 SIMPLE CONTRACTS. to the satisfaction of the jury.^ In Hew v. PetM^ the defendants, who were the churchwardens and an overseer of a parish, gave some promissory notes as security to the plaintiff, expressly signing the notes as officers of the parish. Other parish officials from time to time duly paid interest upon the notes ; and this payment was held to be sufficient to prevent the defendants from setting up the bar of the Statute. But a payment by a married woman not autho- rised by her husband, on account of a note made by them previously to marriage, was not an acknowledg- ment sufficient to keep alive the debt against either.^ To agent. I Similarly it appears not necessary that a part ;^ payment to be effectual to avoid the Statute should be made to the creditor personally, but that pay- ment to his agent will suffice.* Part payment. Where a bill was filed by a simple contract creditor of a testator against his executors and devisee of realty to make the real estate liable under the Act of 47 Geo. 3, which rendered traders' real estate liable for simple contract debts, it was held that notwith- standing a part payment by the executrix within six years, the debt being more than six years old, was ban-ed as against the real estate.* The reason ' Jonei V. Hughes, 5 Ex. 262. 104. ■* Hvans v. Bavies, 4 Ad. & 2 1 Ad. & Ell. 196. See Ell. 840 ; Edwards v. Janes, 1 also Jones v. Hughes, 5 Ex. K. & J. 534. 104. * Putnam v. Bates, 3 Kuss. 3 Neve V. Hollands, 17 Q. B. 188. ACKNOWLEDfiMBNT BY PART PAYMENT. 77 of this decision is given by the V.-C. Kindersley in Coope V. Gressioell} It is that (as elsewhere re- marked) such a payment is not regarded in respect of the Act of James the First as simply an acknow- ledgment of a debt but as a new promise to pay ; and in this view a promise by an executor could not bind a devisee. In Brochlehurst v. Jessop'^ it was laid down that if Part payment. an equitable mortgagee enters into possession of an estate and receives the rent of it such receipt ought primd facie to be taken as a part payment of either the principal or interest of his debt so as to prevent time from running against his claim. But in Ford- ham V. Wallis,^ this case was much criticised, and it was remarked that in fact the judgment amounted only to a dictum as the practical result of the case was only the making of certain inquiries. It has been remarked that there may be a differ A^art payment ence between acknowledgments by part payment/ of principal or interest and other acknowledgmenta in respect of the extent to which they may be bind-j ing on persons, other than those actually making ac-J knowledgment, inasmuch as part payment is a\ benefit to all persons liable to the debt as it relieves] them from so much of their liability.* ' L. E. 2 Eq. 119. See ' 10 Ha. 217. Fordham v. Wallis, 10 Ha. '' Fer Chelmsford, C, in 217 ; Briggs v. Wilson, 5 D. Coope v. Cresswell, L. R. 2 Ch. M. & G. 12. 124. ^ 7 Sim. 438. 78 SIMPLE CONTRACTS. CHAPTER VIL ACKNOWLEDGMENTS BY CO-CONTEACTOES. Admission ty Oeiginally it was held that admissions by a co- co-contraotors. ,, , i"T i"j?ii contractor or co-partner were binding on nis leliow. The leading case on the old law was Whitcomhe v. Whttcombe,'^ but the doctrine thereby established was found productive of hardship, and it has been gradually abolished by Statute. Firstly by Lord Tenterden's Act (9 Geo. 4, c. 14), which enacts as follows : — " That where there shall be two or more joint contractors or executors or administrators of any contractors, no such joint contractor, executor, or administrator shall lose the benefit of the said enact- ments, or either of them, so as to be chargeable in re- spect or by reason only of any written acknowledgment or promise made and signed by any other or others of them. Provided always, that nothing therein con- tained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever : Provided always, that in actions to be commenced against two or more such joint contractors or executors or administrators, if it shall appear at the trial or otherwise, that the plain- ' Doug. 652. And Smith's L. C. vol. 1, p. 575. ACKNOWLEDGMENTS BY CO-CONTRACTORS. 79 tiff, though barred by either of the said recited Acts or this Act as to one or more of such joint con- tractors, shall, nevertheless, be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise or otherwise, judgment may be given, and costs allowed for the plaintiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. " And be it further enacted, that if any defendant or defendants in any action or simple contract shall plead any matter in abatement to the effect that any person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not by reason of the said recited Acts or this Act or either of them be maintained against the other person or persons named in such plea or any of them, the issue joined on such plea shall be found against the party plead- ing the same." And now it has been enacted by section 14 of the Mercantile Law Amendment Act (19 & 20 Vict., c. 98), that in reference to the Statutes 21 James 1., c. 16, s. 3, the 3 & 4 Wm. 4, c. 42, s. 3, and the Irish Act, 16 & 17 Vict., c. 113, s. 20, that when there shall be two or more co-contractors or co- debtors, whether bound or liable jointly only or jointly and severally, or executors or administrators of any contractor, no such co-contractor or co-debtor, execu- tor or administrator shall lose the benefit of the said 80 SIMPLE CONTEACTS. enactments or any of them, so as to be chargeable in respect or by reason only of payment of any prin- cipal, interest or other money, by any other or others of such co-contractors or co-debtors, execu- tors or administrators. In Cockrill v. Sparhes ' a surety had authorised the creditor of his principal by letter to receive a dividend under an assignment for the benefit of creditors, made by the principal without prejudice to his claim against the surety. And it was held that the letter and the payment together did not amount to more than payment " only " within the last section. It seems that a part payment made by one co- contractor will not, under this section, revive a debt against his fellow contractor, even though the latter has consented to the payment.'* Where there has been a dissolution of partner- ship a payment made by a continuing partner will not revive a debt to the detriment of the retiring partner, although accounts have not been finally adjusted between the partners and payments have continued to be made between them.^ " 1 H. & C. 699. ^ Watson v. Woodman, W. ^ Jachon V. Woolley, 8 Ell. N. 1875, p. 180. & B. 778. DISABILITIES. 81 CHAPTER VIIL SIMPLE CONTRACTS — DISABILITIES. The general rules existing by Statute or otherwise Exceptions to which limit the time within which claims must be prosecuted are subject to numerous exceptions in case of disability of parties. Such exceptions exist where, from some impediment on one side or the other the plaintiff has been disabled from prosecuting his claim. The policy of the law is not to discou- Policy of law , . •nil 1 ^0^^ not dis- rage such exceptions, especially where the moral courage such justice of the case is in favour of the plaintiff. Thus ^^''^^' ^°"^' in a recent case. Sir G. Jessel, M.R., has observed that where a debt is clearly admitted and where the Statute is used not with a view of protecting persons from a claim of which they doubt the truth and honesty, but for a purpose for which it was not in- tended, namely to defeat an honest claim which is not brought forward within six years, the Court is anxious to hsten to any fair ground which may bring the case of the creditor within some or one of the exceptions which have been established to the strin- gent provisions of the Act.^ The Statute of James 1, c. 16, contains in the Saving in case ' Boatioright v. Boaturight, L. R. 17 Eq. 74. 82 SIMPLE CONTRACTS. of disability of Seventh section a saving in case of the disability of the ^'™*' ■ plaintiff by reason of infancy, coverture, weakness of mind, imprisonment, or absence beyond seas. The section is as follows : — " Provided nevertheless and be it further enacted, That if any person or persons that is or shall be entitled to any such action of trespass, detinue, action sur trover, replevin, actions of ac- count, actions of debt, actions of trespass, for assault, menace, battery, wounding, or imprisonment, actions upon the case for words, be or shall be at the time of any such cause of action given or accrued, fallen or come within the age of twenty-one years, feme coverte, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited after their coming to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such impedi- ment should have done." It will be noticed that it applies in terms to actions of accounts, or actions of debt only. But it has been held and it is now the law that actions on assumpsit and for unliquidated damages, though not within the words, are within the equity of the proviso.^ In Piggott v. RusJi^ in- deed, this view, though followed, was expressly dis- approved by the Court, which consisted of Denman, ' Swayne v. Stephens, Cro. Piggott v. Smh, i Ad. & Ell. Cat. 2,i5; Crosier Y. Tomlinson, 912. 2 Mod. 71 (Ellis, J., diibitante) ; ^ Ubi supra. DISABILITIES. 83 C.J., and Littledale, Patteson, and Coleridge, JJ. They declined, indeed, to overrule the previous cases, but expressed an opinion that v^^ere the ques- tion res Integra their construction of the Statute would have been different. Though 'a plaintiff, if under one of the disabilities mentioned in the Act, has six years from the cessation of his disability within which he may take proceedings, yet he is not thereby precluded from taking proceedings earlier if he is able so to do, even if the original term of six years has expired since the cause of action.^ It was held also that a plaintiff under the disa- pia-ntiff may bility of absence beyond seas might sue before his ability. return to England.^ And the provision was held applicable to foreigners who had never been in and could not therefore strictly return to England.^ The saving in case of the disability of the plain- tiff, by reason of absence beyond seas or imprison- ment, is now abolished by the Mercantile Law Amendment Act,* and with regard to the disability^ of defendants to be sued it is enacted, that no part of the United Kingdoms of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to them being ' Forbes v. Smith, 11 Ex. ^ Lafond v. Ruddoch, 13 C. IGl ; Townsend v. Deacon, 3 B. 813. Ex. 706. M9 & 20 Vict., c. 97, s. ^ Le Veux v. Berkeley, 5 Q. 10. B. 836 ; Strithorst v. Graeme, * Ibid., s. 12. 2 W. Bl. 723. G 2 84 SIMPLE CONTRACTS. part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the Statute of Anne hereinafter to be referred to. Where the causes of action accrued within the jurisdiction of the Supreme Court of Calcutta, while both parties resided there and one of the parties afterwards re- turned to England, he was allowed the full period of six years from his return within which he might bring his action.^ No difference There is no distinction for the purposes of the tary and in- Statute Law of Limitations between voluntary and disabiiitfes. involuutary disabihties.'^ In Doe v. Jones, Lord Kenyon notices that it would be mischievous to re- fine and make nice distinctions in such cases. How- ever, in an old case of Jenner v. Tracey^. the;:e is an obiter dictum to the contrary, and a distinction is drawn there by Lord King between a necessary ab- sence beyond seas and an avoidance or retarding of justice by abscondance. Co-existing Where several disabilities co-exist in the same per- and successive . - .•,..,, disabilities, son time Qoes not commence to run agamst him till all have ceased.* There is a curious absence of authority as to the effect of successive disabilities supervening and over- lapping each other in cases of simple contracts. ' TFiZ^iamsv. J^orees, 13 East, ^ Quoted at Cooh v. Arrv- 439. ham, 3 P. W. 287 (n). ' Dot d. Buroure v. Jones, 4 * Sturt v. Mellish, 2 Atk. T. R. 310; Lessee of Supple 610. V. Raymond, Hayes, 6. DISABILITIES, 85 Possibly it has often been taken for granted that time will not commence to run till the expiration of the last ; and it would probably be now so held, at all events when they occurred in the same person. It has, indeed, been stated that the period carmot be extended by the connection of one disability with another in these cases ; ' but the words of the judges to a contrary effect in the recent case of Borrows v. Ellison,^ though decided upon the Statute 3 & 4 Wm. 4, c. 27, would seem to apply by analogy to cases of simple contract. Neither in the Act of 21 James 1, c. 16 (which deals with simple contract debts), nor in that of 3 & 4 Wm. 4, c. 27 (regulating the title to land), is there any saving in favour of the plaintiff by reason of the disability of the defendants. It is rather difficult to see why a plaintiff, inasmuch as in the case of disability on his own part he is so carefully considered and pi'otected, should not have been fur- ther protected in the case of a disabihty on the part of the defendant to be a proper party to any action or suit. Some reasons, however, for sach a dis- tinction were suggested in Jones v. Tuberville,^ by Lord Commissioner Ashhurst, and mToivns v. Mead* ' Angell on Lim., p. 206, the disability of coverture, and where an American case (But- jet time ran from the cessa- ler V. Howe, 1 Shep. (Me.) p. tion of infancy. 397) is referred to, where an ^ L. R. 6 Ex. 128. infant had, before the cessa- ^ 2 Ves. 14. tion of infancy, come under ■" 16 C. B. 123-35. And 86 SIMPLE CONTRACTS. it is remarked by Maule, J., that a plaintiff (in case of the absence of defendant beyond seas) was not entirely without a remedy, inasmuch as he might issue his writ, and continue it by alias or pluries, and so on until the defendant returned, or he might proceed to outlawry against him. Absence be- By the Statute, however, of 4 Anne, c. 16, yond seas. i • i f • f> ■ t ^ s. 19, this defect, it it were one, was remedied so far as concerned the single disability of absence beyond seas in regard to the numerous cases (which do not include claims on specialty or to realty), enumerated in that Act.^ And by the Act of 3 & 4 Wra. 4, c. 42,' s. 4, a similar saving is enacted with regard to specialty debts in case of the absence be- yond seas of a defendant.^ And it does not appear that the exception in either of these cases is abolished by the 19 & 20 Vict., c. 97, s. 10^ (The Mercantile Law Amendment Act), which abolishes the exceptions existing in case of disability arising from absence beyond seas on the part of plain- tiffs. Though, where a defendant in these cases is abroad, the Statute, does not begin to run in his favour till six years after his return, yet it is not necessary for the plaintiff to wait till his return, and he may take such proceedings as he is able at any see Fannin v. Anderson, 7 Q. v. Winter, 19 Ves. 196. B. 811; Williams v. Jones, 13 ' See Appendix. East, 439 ; Story v. Fry, 1 You. " See Appendix. & C. 0. C. 603 ; and Fladong * See Appendix. DISABILITIES. 87 time, though six years have elapsed from the original cause of action.^ A return must be more or less of a permanent nature, and mere entry within British jurisdiction for a temporary purpose, for instance, by touching in a vessel at Deal, may not be a return within the Act.'' ' Forbes v. Smith, 11 Ex. Bing. 324 ; Koch v. Shepperd, 161. 18 C. B. 191. ^ Gregory v. Hurrill, 1 88. EEAL PROPERTY. CHAPTER IX. REAL PROPERTY. The case of real In regard to real property it may be well to first chiefly govern- consider the Statute Law of Limitation in the sim- Wm.'^'i, 0. 27. plest form of cases ; that is, where the owner is wrongfully out of provision, and the person occu- pying is a simple trespasser. Cases where there is some special relation to complicate the subject, as, for instance, the case of landlord and tenant, mort- gagor and mortgagee, trustee and cestui que trust, will be considered later on. Real property is now almost entirely governed as to the present subject by the well-known Statute, 3 & 4 Wm. 4, c. 47,^ and discussion on the question in its simple forms is little else than a commentary on the wording and ' This Act has been in effect greatly to increase the imp or- re-enacted with alterations by tance of the subject as to the 37 ifc 38 Vict., c. 57. realty. Fortunately the new See Appendix, infra. The Act is almost identical with effect of that Act (which does the old, except as to length of not, however, come into periods, so that the cases de- operation till the year 1879), cided upon the old Act will be will be to diminish the length applicable to the new, and the of the periods under which a vast amount of past litigation title may be gained under on the subject will not have Statute, and consequently been wasted for the future. OWNER AND TRESPASSER. 89 meaning of that Act. There are, however, some cases which have been intentionally or otherwise omitted from the Statute. These we will first con- sider. The scope of the Act is defined by the first Scope of the section, which is an interpretation clause,^ and the wording of which requires a careful perusal. Broadly stated, the object of the section is to substitute the general terms land and rent for a more particular enumeration of the various kinds of real property in each of the subsequent sections. Thus, by this section the term "land," as used after- wards is interpreted to mean, speaking generally, all corporeal hereditaments ; while the term " rent " is similarly to include all hereditaments of an incorpo- real nature. This section must be construed with accuracy. Thus, in a case on the 42nd section of the Act, which limits the amount of arrears of in- terest recoverable on mortgages of " land " alone the term "rent" being probably accidentally omit- ted, it was decided that a mortgage of turnpike tolls was not within the provisions of the section.^ There is an ambiguity in the term " rent " which Ambiguity may mean either the estate of inheritance in a rent ' ' rent.""'^ or the conventional rent receivable under a lease. Indeed, the term " rent " is used pretty indiscrimi- nately in both senses throughout the Act. In the second section an estate of inheritance such for which an assize might formerly have been had is alone in- ' See Appendix. ^ Mellish v. BrooJcs, 3 Beav. 22. 90 REAL PROPERTY. eluded, but in the 42nd section, dealing with arrears, both kinds of rent are included ; ^ while in one section — the ninth — the word is used in all seven times, three times in the first and four times in the second sense. This difficulty will be referred to later on, in discussing the relations of landlord and tenant.'^ The Statute was extended to embrace the inheri- tance in tithes, in accordance with the recommenda- tion of the Real Property Commissioners, who were of opinion that the principles upon which long en- joyment is held to be conclusive evidence of title applied to this species of property as fully as to any other.* Ambiguity of There is an ambiguity as to the word " tithes " "tiaes." similar to that above noticed in regard to rent, and in this case it may now be considered as decided that the Act applies to an estate of inheritance in tithes solely. An opinion to the contrary of Lord Langdale, in The Dean and GTiapter of Ely v. Bliss* having been apparently overruled by the later deci- sion of Lord St. Leonards.® Between the occupier, ' Grant v. Ellis, 9 M. & W. G. M. & G. 459-68. And 113; Be Beauvoir v. Owen, see, per Alderson, B., in Dean 6 Exoh. 179; Archbold y. of My y. Cash, 15 Uees. &,W. Scully, 9 H. L. C. 360. 617, " The word ' tithes ' is ^ See Index. Landlord and like rent, ambiguous. It may Tenant. mean either the estate in the 3 3rd Eep. of Keal Pro- tithes, or it may mean the perty Commissioners, p. 59. chattel itself, the fruits of the " 5 Beav. 574. estate." ^ Bean of Ely v. Bliss, 2 D. OWNER AND TRESPASSER. 91 therefore, of the land and the owner of the tithe the L*'*'^™*'"' ' 27 applies only Statute now in discussion does not apply, and ques- ^ titiies of , \ , mheritanoe, tions arising between them as to the limitations of the right to recover any tithes or modus are left to the provisions of the Act 2 & 3 Wm. 4, c, 100, which remain unaffected by the later Statute. It is a° See remarks of the L. C. S. C. in Ex. Ch. 12 C. B. 18 ; at 12 C. B. p. 16. and 22 L. J. C. P. 153. ESTATES TAIL. 117 covery, so that a permissive occupation through the laches (even without coUusion) of a tenant in tail vpill not give the occupier any title against the tenaot in tail's successors ; ^ with regard to the in- convenience of the indestructibility of such an estate, Cleasby, B., remarks that in reality such an estate would among all persons dealing with it be marked and known as having a strict parliamentary entail, and that they would deal with it knowing that no good title could be made or acquired as against a succeeding tenant in tail.'^ It appears that there is no saving in regard of disabilities or acknowledgments in the case of remainders upon estates tail,^ so far as they are governed by the 23rd section of the Act; so far, however, as the rights of such reversioners and of the issue in tail are governed by sections 1 and 2, or sections 21 and 22 of the Act, they will no doubt have the advantage of the savings in case of disability, and of acknowledgments provided for in sections 14 and 16 of the Act. ' Earl of Abergavenny v. 1 Eoll. Rep. 151. Brace, L. R. 7 Ex. ; per Chan- ' Earl of Abergavenny v, nell and Cleasby, BB., dissen- Brace, Ibid., 161. «ieraie, Bramwell, B. ; Stratfield ' Goodallv.Skerratt,ZJ)xQ-^. V. Dover, Moore, i^l ; Magdalen 216 ; 24 L. J. Ch. 323. College Case, 11 Co. Rep. 66, b. j 118 REAL PEOPERTY. CHAPTER XL 3 & 4 Wm. 4, c. 27, B. 14. Aoknowledg- ACKNOWLEDGMENTS. The 14tli section, as has been seen, causes time to run afresh, when a proper acknowledgment is in^ri?""^*^^ given, from the time of such acknowledgment, or where several acknowledgments have been given, from the time of the last. It has been suggested by Lord St. Leonards, that the giving an acknow- ledgment may thus cause time to commence to run from the date of an acknowledgment, even when otherwise it would not have commenced to run as early. ^ It seems, however, probable that if it should be necessary to decide the question, that it would be more consistent with the spirit of the Act to hold that the period is to be calculated from the date of an acknowledgment only when that is subsequent to the date from which time would otherwise be calculated. An acknowledgment under this section must be signed personally, and signature by an agent will not, as a rule, be sufficient.'^ Notwithstanding this, however, a signature may, it seems, be so signed by Must be signed person- ally. ' Scott V. Nixon, 3 Dra. & War. 388. Leyv. Peter, 3 H. & N. 101. ACKNOWLEDGMENTS. 110 an agent under the immediate direction and super- vision of the principal so as to be in effect the signa- ture of the principal, especially where the latter is incapacitated by illness or otherwise from signing himself^ The acknowledgment must be given to the person To whom. lawfully entitled, or his agent, so that an acknow- ledgment to third persons or the public generally will not suffice. However, where there was a stone in a boundary wall, with an inscription to the effect that the wall was the property of persons not then in possession, and to whom no other acknowledgment had been given for upwards of forty years, it was held on appeal reversing the decision of Malins, V.-C, that it was idle to suppose that in such a case any question of the Statute of Limitations or of adverse possession could properly arise.'^ No particular form of acknowledgment is required Terms of ac- .„.,., kuowledgment. under the section, but any is sufficient which prac- tically amounts to an admission of the lawful owner's title, and there is no rule, in analogy to the rule requiring that an acknowledgment of a simple contract debt shall amount to a promise to pay, which renders it needful that an admission of the lawful owner's title should, to be effectual, contain any promise of restitution. As a general rule, the question, what terms are Sufficiency of ' Lessee of Corporation of " Phillipson v. Gibbon, L. R. Dublin V. Jtidge, 11 Ir. L. R. 6 Ch. 434. 8. And see under Signatures. 120 REAL PROPERTY. terms is a Sufficient to constitute a binding acknowledgment question for . ' . . . . the Court. in a case of this kind, is a question for the Court, not for the jury.^ But where an acknowledgment was to be gathered from the terms of a lengthened correspondence between parties, it was left to the jury to decide whether, in fact, the correspondence contained an acknowledgment.^ ' Doe d. Cunon v. Edmonds, St. Leonards' E. P. St., p. 67. 6 M. & W. 295 ; Morrell v. ^ Incorporated Society v. Frith, 3 M. & W. 402 ; Lord Richards, 1 Dru. & War. 258. EQUITY. 121 CHAPTER XII. EQUITY. By section 24 of the Act of William the Fourth/ Equity foUows the law. express provision is made that the rule as to actions at law shall extend to proceedings in equity. In this respect, it is true, equity always followed the law, and this enactment does little more than give a statutory sanction to a well-established rule of the Courts of Equity.'^ Previously, the Courts of Equity were usually said to act in analogy to the Courts of Law, but Lord Redesdale went further than this in Hovenden v. Lord Annesley, and stated that Courts of Equity acted not merely by analogy of, but in obedience to the then existing Statutes of Limitation.^ Thus there was no limit in equity to the recovery of rent-charge at a time when no bar existed by Statute.* The jurisdiction which the Court of Chancery has stale demands, always had to discourage stale demands, and to refuse to entertain cases where the plaintiff has lost ' See Appendix. 83 ; Cholmondeley v. Clinton, ^ Hollingshead' s Case, IP. 2 Jac. & Walk. 56. W. 743 ; South Sea Company => 2 Sch. & Lef. 629. V. Wymondsell, 3 P. W. 143 ; ' Archbold v. Scully, 9 H. Edsell V. Buchanan, 2 Ves. L. C. 360. 122 EEAL PROPERTY. his moral right to relief through laches or acquies- cence, is expressly reserved to the Court by section 27 of the Eeal Property Act/ as to the cases which are within Jhe provisionsvof that Act. The rules as to acquiescence and laches,- inasmuch as they depend upon principle and not upon parlia- mentary drafting, are for the most part uniform as to all descriptions of property, and will be subse- quently considered together. Extreme period By sectiou 17 of 3 & 4 Wm. 4, c. 27, a period of of limitation is „ • f i ^ t • ■ i ■ forty years ; lorty years IS lixed as the extreme limit within which any proceedings may be taken.'^ Notwith- but a sixty standing this, a sixty years' title is still necessary, years' title is n i • i • n ... still necessary, and the ruic which requires a vendor to give it in the absence of conditions to the contrary, remains unaltered. " One ground of this rule," remarks Lyndhurst, L. C, was the duration of human life, and that is not affected by the Statute." * The 1 7th section, just referred to, was decided to be retro- spective in Doe d. Corhyn v. Bramston.'^ But the question seems not to be free from doubt, as the words are perhaps in strictness prospective and different from those in some other sections, the 26th, for example ; and in the learned note to Nepean v. Loe, in Smith's Leading Cases,^ it is suggested that the question may be still open. It is a principle that whenever a party applies to ■ Appendix. C. C. 388. - Appendix. -> 3 Ad. & Ell. 63. ■• Cooper V. Emenj, 1 I'iiill. ' 2ud Vol. p. 662. EQUITY. 123 a Court of Equity, and carries on an unfounded Equity win litigation, protracted under circumstances and for a it has itself length of time which deprive his adversary of his legal rights, a substitute for the legal right of which the party so prosecuting an unfounded charge has deprived his adversary should be supplied and ad- ministered.^ ' PuUeney v. Warren, 6 Vesey, 73. But Cf. supra, p. 33. 124 HEAL PROPERTY. CHAPTER XIII. CONCURRENT RIGHTS. Concurrent FORMERLY in cases in whicli two rights co-existed in the same person he was able to take full co- advantage of both. This was in accordance with the old text of civil law, quando duo jura concur- runt in und persond cequum est ac si essent in diversis} Thus, according to Plowden, in Stowel V. Lord Zouch, when there are three several rights in the same person, he shall have the like benefit of them as three persons should have.*^ But this old and well-established principle of law is abolished for the future by s. 20 of 3 & 4 Wm. 4, c. 27, as regards cases within the purview of that Act, by which, when the right to an estate in possession is barred, the right of the same person to^ future estates will also be barred. The section is as follows : — " And be it further enacted, that when the right of any person to make an entry or distress, or bring an action to recover any land or rent to which he may have been entitled for an estate or interest ' Plowden, 368. ■ Plowden, 374. CONCUERENT EIGHTS. 125 in possession shall have been barred by the deter- mination of the period hereinbefore limited, which shall be applicable in such case, and such person shall at any time during the said period have been entitled to any other estate, interest, right, or pos- sibility in reversion, remainder, or otherwise, in or to the same land or rent, no entry, distress, or action shall be made or brought by such person, or any person claiming through him to recover such land or rent in respect of such other estate, interest, right, or possibility, unless in the mean- time such land or rent shall have been recovered by some person entitled to an estate, interest, or right which shall have been limited or taken eifect after or in defeasance of such estate or interest in pos- session." This section makes an exception to the rule which always allows a reversioner a fresh right on the falling in of his reversion under section 5 of the same Statute. The latter section applies only to cases where the estate or interest claimed is an estate or interest in a reversion expectant on the determination of a particular estate in some other person, and not to the case where the same person who has the reversion has also the particular estate.^ In Doe d. Johnson v. Liversedge^ copyhold lands Doe v. Liver- ' Boe d. Johnson v. Liver- 689. sedge, 11 M. & W. 517 ; Doe d. * Uhi sripra. Hall V. Mousdale, 16 M. & W. 126 REAL PROPERTY. were surrendered in 1798 to husband and wife for their joint lives with remainder to the heirs of the husband. In 1805 the husband absconded and went abroad, and was never afterwards heard of. In 1807 a commission of bankruptcy issued against him, and the usual assignment of his estate was made by the commissioners to his assignee. The wife occupied the copyhold estate until her death in 1841, whereupon the assignee was admitted. On these circumstances it was held that an ejectment by the assignee brought after her death was in time, for that the husband's reversion in fee was a future estate within the meaning of the 3 & 4 Wm. 4, c. 27, s. 3. And the Court thought that supposing the twentieth section to apply, the proviso at the close thereof applied also, because the wife had been in possession during the whole period of her life until the time of her death, and though she had not recovered that possession by virtue of legal proceedings, it seemed to the Court a sufficient recovery for the purposes of the section that she had been in actual possession during the whole period of her life, and that until her death, there- fore, there would be no right in the assignee to take possession. JOINT TENANTS AND TENANTS IN COMMON. 127 CHAPTER XIV. JOINT TENANTS AND TENANTS IN COMMON. According to the old doctrine of our law posses- sion by one of a number of joint tenants or tenants in common was equivalent to the possession of all. Thus it is laid down in Smales v. Dale,^ that the Joint tenants, entry of one tenant in common should be taken generally as an entry for his companions as well as for himself And it was_ the same in the case of co-parceners.'^ The reason of this of course was the oid law. privity of interest existing between all the parties. "There is," it is laid down, "a great diversitie holden in our books, where one hath a colour or pretence of right, and where he hath none at all." ^ Yet even under the old law this presumption was liable to be rebutted on proof that there had been an express ouster, or by any circumstances incon- sistent with the possibility of the acquiescence of those who were out of possession of their shares.* And, indeed, a forcible ouster was not always neces- sary. Thus, where one tenant in common remained ' Hob. 120. ' Co. Litt. 243 b. 2 Doe V. Kee7i, 7 Term Kep. ' Fage v. Selby, Bull. N. P. 386. I02h; Co. Litt. 242. 128 REAL PROPERTY. in possession, claiming the whole property, and denying possession to the other, it was considered to be different from the mere act of receiving the whole rent which might be equivocal, but to be certainly an ouster of his companion.' It was held in Peacahle v. Read^ that the fact of ouster was one to be found by a jury. New law. Now, however,^the old law has been changed by s. 12 of the Act 3 & 4 Wm. 4, c. 27, as to cases coming within the scope of the Act. The section is as follows : — " When any one or more of several persons entitled to any land or rent as coparceners, joint tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land, or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons, or any of them." This section has been held to be retrospective, and to make the sole possession of a joint owner adverse in the later sense of the term from its com- mencement ; if, however, the possession were not strictly adverse at the time of the passing of the ' Hdling v. Bird, 11 East, 1 Salk. 392. 51 ; but see Beading's Case, = 1 East, 575. JOINT TENANTS AND TENANTS IN COMMON. 129 Act, the remedy would be saved for five years by virtue of s. 15.^ If an owner of an undivided share of a property occupy a portion only of the property, even though it be not more than he would be entitled to if the Avhole were divided, yet the Statute will apply, and the rights of his fellow owners will be lost as to the part so occupied by him.^ It is doubtful whether the word " rent " in sec- tions 12 and 13 of the Act now in discussion, extends to rent reserved on a lease. On the one hand the less extended signification of the term is the more usual signification in the Act.^ On the other hand, in a case in Ireland, where four out of five tenants in common had been in receipt of the entire rent reserved on a lease, the remedy of the fifth tenant was held to be barred. * ' Culley V. Doe d. Taylorson, 11 Ad. &E11. 1008. = Tidhall v. James, 29 L. J. N. S. Ex. 91 ; Murphy v. Murphy, 15 Ir. C. L. R. 205. ^ Sugden's Real Property Statutes, p. 47. * Burrough v. M'Creight, 1 J. & Lat. 290. 130 REAL PROPERTY. CHAPTER XV, DISABILITIES. In case the plaintiff in any proceedings for the recovery of any land or rent (as defined in the in- terpretation clause of the Act) shall have been under certain disabiKties at the time of the first accrual of his right, he has, by virtue of the 16th section of the 3 & 4 Wm. 4, c. 27, a period of ten years allowed him after the expiration of such dis- ability, in which he may pursue his remedy. This saving provision differs from those which are found in other existing Statutes in pari materia^ in so far as it allows only ten years instead of the full period of twenty years after the cessation of disability, and in this respect it follows the Statute of 21 James 1. The disabilities for which allowance is thus made are infancy, coverture, idiotcy, lunacy, unsoundness of mind, and absence beyond the seas. The terms of the section are as follows : — " Provided always and be it further enacted, that if at the time at which the right of any person to make an entry or distress, or bring an action to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned, (that is to say,) infancy, DISABILITIES. 131 coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, then such person, or the per- son claiming through him, may, notwithstanding the period of twenty years hereinbefore limited, shall have expired, make an entry or distress, or bring an action to recover such land or rent, at any time within ten years next after the time at which the person to whom such right shall have first accrued as aforesaid, shall have ceased to be under any such disability, or shall have died (which shall have first happened)." ^ It will be noticed that there is not in the present imprisonment. Act any saving in case of imprisonment of the plaintiff. Such^ a saving existed in the previous Act of 21 James 1, c. 16, but it is designedly omitted in the present in accordance with the re- commendation contained in the first report of the Real Property Commissioners.'* The reasons for the omission are the ample facilities a prisoner may now have for communicating with his legal advisers, and taking any proceedings he may be advised. The saving in cases where the plaintiff is " absent Absence be- yond seas. beyond seas " is not removed by the 19 & 20 Vict., c. 97, s. 10 (the Mercantile Law Amendment Act), inasmuch as that Statute, while abolishing the saving in the case of all other existing Statutes of Limitation, omits to mention this section, though it ' By the new Act the time 37 & 38 Vict., c. 37, s. 4. will be reduced from ten years ^ 1 R. P. R. 44. to six years. See Appendix, K 2 132 EEAL PEOPERTY. purports, by a carious error, to remove such excep- tions (which never existed) in sections 40, 41, and 42 of the Act. ^ The vpords " absence beyond seas " were well known to our Common Law before the enactment of any Statute which contained the words. Thus in a case where a descent was cast after a dis- seisin, the entry of the disseisee was considered to be tolled, unless the disseisee were " beyond the seas ;" and, again, relief against forfeiture of copyhold lands was often allowed, by reason that the defaulters had been absent beyond the seas.^ Absence be- The meaning which the words " beyond the seas " yond the seas. , . , . are to bear m this country is defined by the following 19th section of the Act, which enacts as follows : — " And be it further enacted, that no part of the United Kingdom of Great Britain and Ireland, nor the islands of Man, Guernsey, Alderney, or Sark, nor any islands adjacent to them (being part of the dominions of His Majesty), shall be deemed to be beyond seas, within the meaning of this Act." There has, however, been considerable difficulty in con- ' See Appendix. The disa- ties of locomotion had dimi- bility of absence beyond seas nished the importance of is removed by the new Act. distant absence is open to the See Appendix, 37 & 38 Vict., criticism that the same faci- c. 57, s. 3. The policy of this lities have greatly increased alteration may be doubted. the number of persons who The argument used by Lord may be absent and require the Selborne in the House of Lords protection of the exception, in advocating the change, ^ jJnderhill v. Kelsey., Cro. namely, that increased faoili- Jac. 226. DISABILITIES. 133 struing the expression in cases where the Act has been adopted in our colonies and dependencies. The question was much considered in the case before the Privy Council of Ruchmayboye [Her Highness) v. Lulloohhoy Moitichund^ on appeal from a decision in India.^ In this case, alter much discussion, it was decided that the words were not to be taken literally, but that they were to be read as synonymous with the expression out of the realm, used in the early English Statutes of Limitation, namely the 1 Ric. 3, c. 7, the 4 Hen. 7, c. 24, and the 32 Hen. 8, c. 2, and as meaning outside the British territory. Notwithstanding, that by the words of the Statute infancy. a period of ten years alone is provided after the ces- sation of the disabilities mentioned, of which infancy is one, during which a plaintiff may pursue his re- medies, yet if a father, or other person, enters into the property of an infant, in such a manner as to in- vest himself with a fiduciary character, the infant will, on attaining his age of twenty-one years have a full period of at least twenty years within which he may seek a remedy.^ Where a father enters upon the estate of his infant children the presumption is that he enters as their guardian and bailiff, and therefore the Statute of Limitation does not commence to run against the children until they attain the age of ' 8 Moo. P. C. C. 4. Nanney v. Williams, 22 Beav. 2 Thomas r. Thomas, 2 Kay 452 ; Hicks v. Sallitt, 3 D. G. & J. 79 ; P«% V. Bascomhe, 4 M. & G. 782-861. Giff. 390, and 13 W. E. 306 ; 134 REAL PROPERTY. twenty-one years, and from that time, at least, a child has twenty years during which he may recover possession.* And further than this, it appears that if the father retain possession after the children attain their age of twenty-one years, his possession will be considered to be continued in the character in which he entered, and that if he has once entered as a guardian the Court will never allow him to set up any other title. '^ Infancy. j^ was the Opinion of Lord Hardwicke in Morgan V. Morgan^ that if any person, even a stranger, entered upon the estate of an infant, and continued in possession, a Court of Equity would consider such person so entering as a guardian to the infant, and would decree an account against him, and carry on such accounts after the infancy determined.* But now, since the Act 3 & 4 Wm. 4, c. 27, it is doubtful whether the rule laid down by Lord Hardwicke is any longer law in the case of entry by a stranger ; and Lord Hatherley, then Sir Page Wood, V.-C, in Thomas v. Thomas,^ expressed a great doubt whether the rule above mentioned applies to a stranger, inasmuch as the Statute provides an allow- ance of only ten years after majority, a provision which would be rendered altogether nugatory if it ' Thomas v. Thomas, ubi Beav. 250 ; Beddy v. Lefevre, supra. 1 Ha. 602 ; Wyllie v. Ellice, = Ibid. 6 Ha. 505. » 1 Atk. 489. ' 2 Kay & J. 79. ■■ See Blomfidd v. TSyre, 8 DISABILITIES. 135 were to be held that in every case where a stranger enters upon an infant's estate he enters as bailiff. However, if a relation, and it is presumed even a infancy. stranger, enters upon an infant's estate by virtue of a family arrangement, and in a fiduciary character, the children will have at least twenty years to re- cover possession after attaining their majority.' It is to be noticed, however, that one of the grounds for the decision of the Vice-Chancellor in Thomas v. Thomas is stated by him to be the fact that it was in evidence that the father of the infants had in that case, while in possession of their estate, given them a proper maintenance, and had, in fact, acted much as he would have done if appointed guardian by and acting under the direction of the Court of Chancery. It is possible, therefore, that had the father in that case improperly spent the proceeds of his childrens' es- tate, the question might have been more open, the law in regard to limitation of actions in this, as in other cases, offering a premium on mis-behaviour. The section regulating disabilities is expressed to apply only when the party intended to be protected is under disability at the time when the right first accrued, which must be determined by the third section of the same Act ; and in those cases where the time of such accrual has been fixed by the Statute, before the period at which any actual right to bring an action or make an entry has arisen, a ' Felly V. Bascombe, 4 GifF. 390 ; on appeal, 13 W. R. 306. 136 REAL PROPEETY. Successive dis- atilities in different persons ; In the same person. person who falls into disability in the interval be- tween those two periods may never have an oppor- tunity of asserting his rights.'' In fact such a contingency seems to be a casus omissus in the Act.'' A question might be raised whether on the word- ing of the Statute a person claiming, for instance, through a conveyance from a person under disabihty, would have the advantage of the ten years' allow- ance after the cessation of the grantor's disability, it being often possible for a person under disability yet to be able to convey. By the 18th section of the principal Act, now in discussion,^ it is enacted that successive disabilities in different persons shall not prevent the bar of the Statute. Formerly this had been a doubtful ques- tion, though, on the whole, it seems that this section is only declaratory of a principle pretty well esta- blished already.* It has now been settled that when the same person falls under successive disabilities which overlap, time does not commence to run against him under this Act till the expiration of the last disability.^ ' See judgment of Parke, B., in Owen v. De £eativoir, 16 M. & W. 567. ' See, however, Lord St. Leonards' Eeal Prop. Stat. p. 71 ; and Devine v. Holloway, 14 Moo. P. C. C. 290. ^ See Appendix. ■* Blanahard, p. 22. ' Borrows v. Ellison, L. R. 6 Ex. 128. And see mpra, Disabilities in Simple Con- tracts. DISABILITIES. 137 By the 3 & 4 Wm. 4, c. 27, an extreme limit of forty years is fixed in cases of disability. This period is reduced to thirty years by the new Act, which comes into" operation on the 1st of January, 1879.^ ' See Appendix, 37 & 38 Vict., c. 37, s. 5. 138 REAL PROPERTY. CHAPTER XVI. LANDLORD AJSTD TENANT. The law of landlord and tenant is a branch of that of rcTer- sioners. But is now chiefly govern- ed by 3 & 4 Wm. 4, c, 27. Tenancies at will are go- •vemed by sec- tion 7. The law of landlord and tenant is a branch of the law of reversioners in general,^ and where a case does not fall within one of the numerous exceptions in the Statute of 3 & 4 Wm. 4, c. 27, it will be governed by the rule regarding reversioners in general contained in section 3 of the same Act ; that is to say, that time will not commence to run against the landlord or reversioner till, by the determination of the previous estate, the reversion become an estate or interest in possession. Express provision is made by the Act for the cases of tenancies at vnll,^ tenancies from year to year,^ and leases in writing where the rent is not less than twenty shillings.* The case of tenancies at will is governed by section 7 of 3 & 4 Wm. 4, c. 27,^ under which the time commences to run against the landlord either at the determination of the tenancy at will, or at the end of one year from its commencement, whichever first 1 Smith's L. C, 6th ed. ' Ibid., s. 8. vol. 2, p. 636. . " Ibid., s. 9. ^ 3 & 4 Wm. 4, c. 27, s. 7. ^ See Appendix. LANDLORD AND TENANT. 139 happens. It has been noticed that non-payment of any rent seems assumed in this section/ and it is certain that it cannot be intended that the landlord should be barred of his remedy by efflux of time so long as he continues to receive rent from his tenant. Possibly this remarkable difficulty is escaped by the provisions of section 35 of the same Act/ or such payment may be a sufficient acknowledgment that the tenant's occupation is permissive.^ There was much discussion as to how far this Howfar is sec- section is retrospective, a question which, of course, spective ? has become almost without importance. It was held that it is not so far retrospective as conjointly with sections 2 and 34, to vest the property in land in a person who had been a tenant at will without pay- ment of rent more than twenty years continu- ously, but had quitted possession previously to the Act.* In Doe d. Evans v. Page, 5 Q. B. 767, Lord Denman expressed an opinion that the section only applied to tenancies at will existing at the passing of the Act or subsequently. If, before the right of entry upon a tenant at will Where a is gone, that is to say, before the lapse of twenty-one irdTterminld years from its commencement the lessor determines toancyTt that tenancy, and by agreement expressed or implied fTrance'"^' a fresh tenancy at will is commenced, then the""*'^*^' ' Lord St. Leonards' E. P. & Ell. 149 ; 29 L. J. Q. B. 222. Stat., p. 53 («). ^ Doe&. Thompson \.Thomp- ^ See Appendix. son, 6 Ad. & Ell. 72L '' Hodgson v. Hooper, 3 Ell. 140 REAL PROPEETY. period of grace of the lessor must be computed from the commencement of such fresh tenancy at will.^ Where, however, the tenancy at will is determined but a tenancy at sufferance continues, it is perhaps the better opinion that no further tiuie is gained by the lessor,^ but that he will be barred his remedy at the expiration of twenty-one years from the com- mencement of the original tenancy at will. What deter- A tenancy at will may be determined by declara- mines a . p i i a i i • i tenancy at tiou 01 the Icssor,^ or Dy any act which amounts to will, . , . , p , , an express, or imphed ouster ; lor instance, by entering on the land and cutting down a tree, or actual entry on the land in the absence of the lessee, or by words spoken off the land, if the lessee have notice.* In fact, by any act of the lessor inconsistent with the lessee's title, for example, a conveyance by the lessor.® On this point, Denman, C.J., in Turner v. Bennett^ remarks, " if he (the landlord) do any act upon the land for which he would other- ^ Eandall V. Stevens, 2 E. & v. Matthews, 13 C. B. N". S. B. 641 ; Hodgson v. Hooper, 753 ; Doe d. Goody v. Garter, 3 E. & E. 149 ; Loche v. Mat- 9 Q. B. 863. thews, 13 C. B. N. S. 753. " If ' " The lessor may put him the owner enters effectively (the tenant at will) out at and creates a new tenancy at what time it pleaseth him." will he has 20 years from Co. Lit. 55 b. that period before he can for- ■* Ibid, feit his estate." Per Erie, C. * Dimsdale v. Hes, 2 Lev. J., Ibid., 764. 88 ; Doe d. Bennett v. Turiie"-, 2 Doe d. Bennett v. Turner, 7 M. & W. 226. 7 M. & W. 226 ; Turner v. "^ 9 M. & W. 643. Bennett, 9 M. & W. 643 ; Locke LANDLOBD AND TENANT. 141 wise be liable to an action for trespass at the suit of the tenant, such act is a determination of the will, for so only can it be a lawful and not a wrongful act." The question whether, after the determination of Whether a new a tenancy at will, a tresh tenancy at will is created created is a is one for a jury.^ As to creation of tenancies at the jury. will generally, the reader may consult Co. Litt. 55 a, and as to what is sufficient to create a fresh tenancy at will after determination of a previous one, the case of Day v. Day^ a case on appeal from the Supreme Court of New South Wales.^ It is pro- Trustees, etc., vided that mortgagors and cestuis que trust shall not section 7. be considered tenants at will within this section, but a constructive trustee, for example, a person occu- pjdng under an agreement to purchase is not within this exception.^ The subject of yearly tenancies is important. A Yearly tenan- tenancy from year to year is readily created. It is implied whenever possession is taken legally with an annual payment. It is not affected by the death of or alienation by lessor or lessee, and will continue for an indefinite time, unless determined by a proper notice.* ' Doe d. Bainett v. Turner, v. Groves, 10 Q. B. 486. 7 M. & W. 226; LocTce v. ^ L. K. 3 P. C. 7.51. Matthews, 13 C. B. N. S. 753; ^ Doe d. Stanway v. Eoche, Doe d. Goody v. Carter, 9 Q. 4 M. & Gr. 30. B. 863 ; Doe d. Stanway v. ■* Birch, v. Wright, 1 T. R. Roche, 4 Man. & Gr. 30, and 1 380. .Car. & M. 510; Doe d. Groves cies. 142 REAL PROPERTY. Yearly tenan- Tenancies from year to year, and tenancies for C16S with lfi3.S6 in writing are othcr fixed succcssive periods, toJiere there is no sect. 8. lease in writing, are governed by sectioo 8 of 3 & 4 Wm. 4, c. 21} The ambiguity of the term "rent," which may mean either rent reserved on a lease or an estate in a rent charge, as before noticed, is exemplified in this section. The word occurs three times in the section, twice in the commencement in the latter, and the last time in the former sense. The effect of the section is that the lessor has twenty years from either the end of the first of such years or other periods, or the last payment of rent, which- ever shall last happen, during which he may pursue his remedy. How far sect. 8 Questious similar to those as to tenancies at will tire! ™^'''"' were raised as to how far the section was retrospec- tive, and probably decisions affecting one section on this point would be applicable to both. As to such tenancies commenced before, but existing at the time of the act being subject thereto, see Doe d. Jukes V. Sumner? " A lease in A Icasc in Writing to take a tenancy out of the writing'* with- in sect. 8 must operation of this section must be an effectual lease be a binding ... , lease. and bmdmg on the parties, not merely a memoran- dum of the terms of the tenancy. Thus, a writing purporting to be a demise, but really ineifectual, not being signed by necessary parties, was not sufficient.^ ' Appendix. ' Doe d. Landsell v. Gower, = 14 M. &W. 39. 16 Jur. 100; 21 L. J. Q. B. LANDLORD AND TENANT. 143 As to what is a rent sufficient, if rendered to take what is a a case away from the operation of this section, it section 8. has been decided that the performance of services for which a distress might be made is equivalent to the payment of rent. Such, for instance, as tolling a bell, or sweeping a church ; ^ but it is otherwise with services for neglect of which a distress cannot be made, such as keeping in repair a parish grind- stone.*^ Where periodical payments have been paid by the Whether pay- lessee to the lessor, it is of course important to con- are made on ' -I T n 1 1 1 I n account of sider how tar they have been made on account oi "rent." rent, especially when money has been due to the landlord on other accounts, and in view of the maxim, quicquid solvitur snlvitur secundum animum solventis? A question also arises as to who must pay the rent. Thus, where the defendant had occu- pied a sufficient time without himself paying rent, but a person who was undertenant, as he acknow- ledged himself to be, of the first lessee, had done so to the superior landlord, the latter was not considered barred, and it was said that an undertenant should not dispute a title good against his immediate land- lord." Where a tenant had been legally tenant at will for Equitable 51 ; 17 Q. B. 589. See, how- 2 Moo. & E. 441. ever, remarks of Lord St. ' A.-G. v. Stevens, 6 D. G. Leonards, R. P. Stat., p. 61. M. & G. 146 : Doe d. Newman ' Doe d. Edney v. Benham, v. Godsill, cited at 4 Q. B. 603. 7 Q. B. 976. " Doe d. Spencer v. Beckett, ^ Doe d. Robinson v. Hinde, 4 Q. B. 601. 144 REAL PEOPERTY. Leases in writing over 20«. rent. Time never runs against landlord. twenty years without payment of rent, but was in the meanwhile entitled in equity to a long term of years in the same premises, it was considered that in equity he must be regarded as tenant for the longer term, and that in equity the landlord's remedy would not be barred till twenty years from the expiration of that term.^ Where a lessor has a lease in writing, and the rent amounts to twenty shillings, the case is governed by section 9,^ the wording of which re- quires a careful examination. The ambiguity of the word rent is again curiously exemplified.^ The word is used in all seven times in the section, four times in the sense of the conventional rent reserved on a lease, three times in the sense of an estate in a rent or rent-charge. In the Appendix, the word when it appears to be used in the latter sense is printed in italics. As a rule, where there is a written lease by which a rent of twenty shillings and upwards is reserved, time will never commence to run against the landlord during the existence of the tenancy ; but this section introduces one excep- tion to the rule, by which such landlord, as any other reversioner, may, both on general principles and by virtue of section 3 of the Statute, enter any time within twenty years of the termination of the lease. ' Archbold v. Scully, 9 H. and 3, See Appendix. L. 360. ' Darby and Bosanquet, p. 2 3 & 4 Wm. 4, c. 27, ss. 9, 726. LANDLORD AND TENANT. 145. The exception is this that if the rent has been except on pay- received by some person wrongfully claiming the to a third reversion, and no rent be received subsequently by ^'^' ^' the real landlord, then the twenty years' limit com- mences to run against the real landlord from the first wrongful receipt of rent.' This is quite new law ; previously, mere receipt of rent did not con- stitute an ouster subject to the question of acquies- cence on the part of the real landlord.* The policy of the change is explained in the report of the Real Property Commissioners.' It is important to notice that it seems that a single payment to a person claiming wrongfully the reversion is sufficient to set time running against the true owner if no payment is afterwards made to the latter, so that at the end of twenty years the true owner may lose his remedy without his rights being transferred to the wrongful claunant. On the other hand, it is a principle, where there is a lease in writing, that the tenant can never acquire a title against his landlord.* Where there is a mesne tenant between landlord Effect of pay- , . Ill ment direct and undertenant, and the latter pays rent to the ty undertenant landlord immediately, instead of to his immediate lord. ' Smith's L. C, vol. ii., 6th Amicdcy, 2 Sch. k Lef. 624. ed., 643. ■' K. P. C. 1st Rep., 77. ^ Ibid. ; Gilb. Ten., 21 ; Boe * Grant v. Ellis, 9 M. & \V. d. Cooky. Danvers, 7 East, 299; \\% ; Be Beauwir v. Owen, 5 Bxishhy V. Bixon, 3 B. ii C. Ex. 179 ; Archbnld v. Si:nUii, 298. But see Ilovenden v. 9 H. L. 360. 146 EEAL PROPERTY. superior, tlie mesne tenant, it may be a question whether or not the mesne tenant is by efflux of time gradually barred of his rights as immediate rever- sioner of the undertenant.^ But it may probably be decided that as the circumstances have arisen by arrangement, and to save the circuity of a double payment,^ the Statute does not apply. Can landlord Jt has been doubted whether the landlord who enter till end of lease. had allowed a tenant to go twenty years without payment of rent could bring ejectment during the lease, or whether he must wait till by its determi- nation his reversion fall in. In the Irish case of Doe d. Mannion v. Bingham ^ it was held that he must so wait ; but this case has not been followed, and cannot now be considered law.* In the case cf Where the rent reserved on a lease in writing is nommal rents ^ time never nominal, Or SO small as to seem unimportant, the runs against landlord. rightful landlord may, under the general rule as to the rights of reversioners, enter any time within twenty years from the falling in of the lease, and the same is the case where the rent, though higher, has been simply withheld and not paid to a wrongful claimant.^ In no case, while there is a lease in ' Drew V. Earl of Norhury, 3 ^ Boe d. Davy v. Oxenham, Jo. & Lat. 267 ; Doe d. Neio- 7 M. & W. 131 ; Owen v. Be man v. Goddl, cited 4 Q. B. Beauvoir, 16 M. & W. 560; 603, note. Spratt v. Sherlock, 3 Ir. C. L. - Hayes v. Woodley, 3 Ir. R. 69. Ch. Rep. 142, 150. * Doe d. Davey t. Oxenham, ' " 3 Ir. L. R. 456. 7 M. & W. 131 ; Fulton v. LANDLORD AND -TENANT. 147 writing, can the tenant himself acquire any title.' It is to be noticed that under section 34,^^ wherever the landlord's remedy has been lost his title also is extinguished. As to what is such a permissive occupation as to Occupation by . . . , . , servants, etc. prevent an occupier acquiring a title against the owner the reader may refer to some remarks in a short treatise by the late Lord St. Leonards.^ Oc- cupation by a bailiff is such permissive occupation,* and by a servant.' No one is obliged to take advantage of a forfei- No one is rni • • 1 1 1 fi 1 • 11 ■ ol liged to ture. ihis is old law,*" and is preserved by section take advan- 4 of 3& 4 Wm. 4, c. 277 So that a lessor, likefefture.'^ "'' any other remainderman on an estate for years or life, has twenty years within which he may pursue his remedy after the reversion falls naturally into possession, notwithstanding any previous right of entry he may have gained by any forfeiture.^ Where there is a provision for re-entry only on the commission of any act of forfeiture by a tenant, Creagh, 3 Jo. & Lat. 329 ; of Doherty v. Doherty, 5 Ir. L. Chadimck v. Broadivood, 3 R. 449 ; Lessee of Montmorency Beav. 308. v. Walsh, 4 Ir. L. R. 254. ' Archhold v. Scully, 9 Hoi. ' Doe d. Gook v. Danvers, 7 L. C. 360. East, 299 ; Doe d. Allen v. ^ 3 & 4Wm. 4, c. 27, s. 34, Blaheivay, 5 Car. & P. 563. Appendix. ' See Appendix. 3 E. P. Stat., p. 26. ^ See 1 Vesey, Sen., 275 ; ^ Ibid., p. 27. Doe d. Alleti v. Blakeivay, 5 * Lessee of Ellis v. Craw- Car. & P. 563. ford, 6 Ir. L. R. 404 ; Lessee L 2 148 HEAL PROPERTY. the lease is simply voidable, not void, and there can be no question that the lessor is not obliged to take immediate advantage of the forfeiture. But where the penalty for an act of forfeiture is that upon such breach the lease shall absolutely determine and be void, a difficulty has been raised, that by the very terms of the lease the lease must be then considered to have ceased, and the reversion to have fallen in. It is, however, perhaps the better opinion that if that point should be raised, it would be held that a lease with such a provision is void only at the option of the lessor, inasmuch as it is not allowable for a lessee to take advantage of his own wrong- doing.' An acknowledgment in all the preceding cases by t])e tenant in writing, given to the landlord or his agent, within the statutory period of twenty years,'' will avoid the Statute, and there is a saving in case of the disability of the lessor at the time of his right of entry.^ There is a conflict as to the question of the recovery of arrears between section 42 of 3 & 4 Wm. 4, c. 27,* and section 2 of 3 & 4 Wm. 4, c. 42.^ The latter Act received the royal assent last ^ Read v. Farr, 6 M. & S. L. C, Gth ed., vol. i., 36-39. • 121 ; Maliiis y. Freeman, 4 ^ 3 & 4 Wm. 4, c. 27, s. 14, Bing. N. C. 395 ; Hyde t. and the new Act. Watts, 12 M. & W. 254; ^ 3 & 4 Wm 4, c. 27, s. 16, Hughes v. Palmer, 19 C. B. N. S, and the new Act. 393. And see Robert v. Davey, * Appendix. 4 B. & Ad. 664, and Smith's ' Appendix, LANDLORD AND TENANT. 149 (which is the true test of priority), namely, on the 14th August, 1833, while the former received the royal assent on the 24th of July previous ; where, therefore a case comes within the provisions of both Acts the later Act wdll prevail, and by this it appears, that where there is an indenture of demise and covenant for payment of rent twenty years' rent may be recovered.* But where there is no indenture of demise or covenant it seems that six years' arrears of rent can alone be recovered as the case falls solely under the first Act.^ ' Paget v. Foley, 2 Bing. N. ° Uppington v. Tarrant, 3 C. 679 ; Sims v. Thomas, 12 Ir. Ch. R. 262. Ad. & EIL 536. 150 REAL PEOPEETY. CHAPTER XVII. MORTGAGOE AND MOETGAGEE. The rights which a mortgagor may acquire against his mortgagee by efflux of time and vice versd are governed partly by the special section 28 of the principal Act,' and the explanatory Act, 7 Wm. 4 & 1 Vict., c. 28,*^ and partly by more general rules. Complexity of The subject is one of some complexity. A mortga- the .subject. . . i •,• en i i gor IS m an anomalous position ; he can be de- scribed only by saying he is a mortgagor," per Parke, B.^ We will first consider the ordinary case where a mortgagor in fee remains in possession of the mortgaged property. Mortgagor Where a mortgagor remained (as is usual) in oc- possession." cupation of the mortgaged premises it was doubted till the passing of 7 Wm. 4 & 1 Vict., c. 28, whe- ther the mortgagee would not be barred of his rights against the land, notwithstanding payment of interest or part principal to him in the meantime, at the ex- piration of twenty years from his right of entry, so that he would be left an unsecured creditor for the ' 3 & 4 Wm. 4, c, 27, s. 28, ^ Litchfield v. Eeadi/, 20 h. Appendix. J. E?. 51, ^ Appendix, MORTGAGOR AND MORTGAGEE. 151 mortgage money, his right to which (though not to the land) could be kept on foot by payment of in- terest or principal. And it was considered that where there was nothing amounting to a re-demise in the mortgage deed that the twenty years would commence running against the mortgagee at the date of the deed ; and at the expiration of the re- demise, where such existed. To make a re-demise Eflfect of a in a mortgage deed it is necessary that there be in it an affirmative covenant for enjoyment of the pre- mises by the mortgagor for a definite period ; a covenant for such enioyment until default not beina: ^^f-* c^'^^t^s a '' •' ° re-aemise. such a re-demise owing to the fact that a demise for an uncertain period is void at law.^ Now, however, by 7 Wm. 4 & 1 Vict., c. 28, it is provided that ^,"^"7^^^°? time shall not run against a mortsjaoree so as to bar f""^^ '' ^'^■t' ° ^ " " & 1 Vict. c. 28. his right to land (as defined in 3 & 4 Wm. 4, c. 27, s. 1) so long as any part of principal, or interest is paid by mortgagor,^ bu^ a mortgage of a rent charge or other hereditaments not comprised in the -defini- tion of land seems still liable .to the same question. A mortgagee under this Act is protected as against a person who has been in occupation more than twenty years before the action, but less than twenty years before the mortgage, and who has thus gained ' As to what is sufficient in W. 558 ; Doe A. Pasley v. Day) a mortgage deed to create a 2 Q. B. 147. re-demise, see Dav. Prec. Con., ^ Appendix. See Doe d. vol. ii., pt. 2, p. 588; Doe d. Jones v. Williams, 5 A. & E, Boylance v. Lightfoot, 8 M. & 291. 152 REAL PROPERTY. a title against the mortgagor/ and a purchaser tak- ing a conveyance from mortgagor and mortgagee is a person claiming " under the mortgage," and pro- tected by the Act.'* For further remarks on the bearing of the Act the reader is referred to the case of Eyre v. Walsh.^ Ackno-wiedg- The right to recover the money as well as the gagor. land is lost by the mortgagee at the end of twenty years after his present right to receive the same, un- less there has been some payment of interest or part payment of principal or acknowledgment.* For the exact meaning of the expression " a present right to receive," the reader may refer to the case of Faulkner V. Daniel.^ There is, however, a difference in the two cases as to the effect of an acknowledgment. In order to keep up the charge on the land, the ac- knowledgment must be in writing signed by the mortgagor personally, and made to the mortgagee or his agent. In order, however, to keep up the money charge alone, a similar acknowledgment by the agent of the mortgagor will suffice, so that if an acknowledgment has been made, signed by the mortgagor's agent to the mortgagee, he none the less will lose the security of the land, while remaining a specialty creditor for the mortgage money. As to the law upon signatures generally, the reader is I'e- ' Doe d. Palmer v. Eyre, '' 10 Ir. C. L. Kep. 346. 17 Q. B. 366. •* 7 Wm. 4 & 1 Vict., c. 28; = Doe d. Baddeley v. Massey, 3 & 4 Wm. 4, c. 27, s. 14. 17 Q. B. 373. * 3 Hare, 212. MORTGAGOR AND MORTGAGEE. 153 ferred to the case of Wain v. Warlters, and the notes and references thereto.* Inasmuch as part payment of interest or principal Part pay- money secured by a mortgage will prevent the mort- "™ ' gagor from deriving the benefit of the Statute it may be questioned what the effect of such a payment by a stranger would be. The receipt of the rent and profits of mortgaged premises by an equitable mortgagee has been held equivalent to a part payment within the Sta- tute.'^ The disabilities affecting the mortgagee which Disabilities of -, . J. • r J.- J mortgagee. may give him an extension ot time are, as regards his right to the land, those mentioned in 3 & 4 Wm. 4, c. 27, s. 16. Subject to the extreme period of limitation of forty years,'' and as regards his right to the money as a specialty debt by virtue of the usual covenant, those named in 3 & 4 Wm. 4, c. 42, s. 4. They are practically the same, but as regards the latter, the disability of absence beyond the seas has been abolished by the Mercantile Law Amend- ment Act.* In the first case, moreover, the mort- gagee would have only ten years further from the date of recovery from disability, while in the second he has the full twenty years, so that there arises again the not unusual contingency of a creditor, who, ' Smith's L. 0., vol. ii., 234. ^ Reduced to thirty years And see under Signatures by the new Act. See Appen- ^ Brocklehurst v. Jessop, 7 dii, 37 & 38 Vict., c. 57. Sim. 438. " 19 & 20 Vict., c. 27, s. 10. 154 REAL PROPERTY. though he has not lost his debt, has lost his security by efflux of time.^ Liability of The cases where a mortgagee is under disabihty at the time of the accrual of his right cannot be fre- quent, as usually he will not be under such at the date of the mortgage, and his rights generally arise shortly afterwards, if not at the time, except under the Statute 7 Wm. 4 & 1 Vict., c. 28, to which it does not appear that the saving in case of disability is applicable. Still a mortgagee would have time to fall under disability so as to prolong his right of entry in the case of a deed which created a re- demise ^ to the mortgagor between the time of the execution of the deed and the termination of such re-demise. And the question may arise under mort- gages made to persons under disability, under orders in lunacy, and the like. Mortgagee in The case of a mortgagee in possession is now principally regulated by section 28 of the principal Act.^ Broadly stated the effect of this section is that time begins to run in favour of the mortgagee immediately upon his obtaining possession of the premises, whether land or rent charge, comprised in his mortgage, and that the mortgagor may not bring ' The two dates of ten years Appendix. And after the 1st and twenty years are altered January, 1879, by the new under the new Act. See Ap- Act. By this Act the period pendix. is reduced from twenty years ^ See supra. to twelve years. See Appendix, s 3 & 4 Wm. 4, c. 27, s. 28, 37 & 38 Vict., c. 57, s. 7. MORTGAGOR AND MORTGAGEE. 155 any suit to redeem except within twenty years of such possession, unless in the meantime an acknow- ledgment of his title is given to the mortgagor or his agent signed by the mortgagee or the person claim- ing through him, but the wording of the clause re- quires a careful study, and numerous questions have arisen on its effect. The rights of a mortgagee are sometimes compli- Where pro- , . . . , . „ perty is set- cated where the property m question is subject oi a tied if mort- settlement. Thus, where the mortgagee was him- Sferest^L'fte self entitled to a limited interest in the premises, p™™'^^^' time did not commence to run in his favour till the determination of that interest.^ Where a mortgagee enters not as a mortgagee only, but as purchaser of the equity of redemption, he must look to his vendor's title, and if he has really only acquired a limited interest in such equity of redemption, time will not commence to run in his favour during the continuance of that interest ; as while at once mortgagee of the whole and the owner of the immediate equity of redemption he is bound to keep down the interest on his own mortgage in favour of the remaindermen, and there is the same hand to pay and receive the money. '^ The rights of a mort- The rights are ' Raffety v. King, 1 Keen, 1028 (a) ; Raffety v. King, 1 601 j Tull V. Owen, 4 Y. & C. Keen, 601-18 ; Corhett v. £ar- 201 ; Hyde v. Dallaway, 2 Ha. her, 1 Anst. 138; S. C, 3 Anst. 528. 755 ; Reeve v. Hicks, 2 Sim. & ^ Story's Equity Jur. Stu. 403 ; Ravald v. Russell, 156 REAL PROPERTY. not affected by sutseqiient devise o£ the equity of re- demption. Acknowledg- ment by mort- gagee in pos- session. Nature of acknowledg- ment. gagee are not, of course, affected by a devise in set- tlement of the mortgaged premises subsequent to the mortgage.^ Time will not run in favour of the mortgagee, if he from time to time acknowledges the mortgagor's title. The wording of the section regulating the ac- knowledgment requires particular attention.'* It must be signed personally by the mortgagee or the person claiming through him, and be made to the mortgagor or person claiming through the mort- gagor or the agent of either. If there is more than one mortgagor, acknowledg- ment to one is sufficient to save the rights of all. If, on the contrary, there is more than one mort- gagee, an acknowledgment by one affects only his interest ; and there is a provision for apportioning the value of that interest. Where an acknowledgment of the mortgagor's title had been made and signed by one only of two trustees it was held to be entirely inoperative.^ In this case MeUish, L.J., seemed to think that the signature of one out of several mortgagees who had the beneficial interest would be inoperative if they were joint tenants, and that much difficulty might be thereby caused, for example, in the case of partners ; 1 Younge, 9-19. And see per Chelmsford, L.C., in Seagram V. Knight, L. K. 2 Ch. 632. ' Browne v. Bishop of Corlc, 1 Dr. & Wal. 700 ; Raffety v. King, 1 Keen, 601. ^ 3 & 4 Wm. 4, c. 27, s. 28, Appendix. ^ Richardson v. Younge, L. R. 6Ch. 478; 10 Eq. 297. MOETGAGOR AND MORTGAGEE, 157 but James, L.J., expressly stated that the decision in the case must be considered as strictly confined to mortgagees who are trustees, and appear such on the face of the deed. A mortgagee may also be held to acknowledge his mortgagor's title by keeping and rendering ac- counts.^ Where a mortgagee in possession is in possession Equitable mortgages. under an agreement amountmg m equity to a lease, time will not run in his favour till the expiration of such equitable lease.^ It may be remarked that, in- dependently of the lien gained by a mortgagee upon the land by an equitable mortgage by deposit of title deeds, the mortgage debt is a simple contract debt only.' Where a third person is in occupation it does not where a twrd follow that, because he has acquired a title against possession the mortgagor, he has also acquired it against the h^ a^spedai mortgagee, as the latter is specially protected by the tectixin^ ^™' Statute 7 Wm. 4 & 1 Vict. Thus where an owner mortgaged land in occupation of a third person, who remained in possession more than twenty years without payment of rent or acknowledgment, yet payment of interest in the meantime by the mort- gagor to the mortgagee was held sufficient under ' Baher v. Wetton, 14 Sim. L. 360 ; Drummond v. Sunt, 426 ; Hordle v. Healep, 1 L. R. Q. B. 763. Madd. 181 ; Richardson v. ^ Brochlehurst v. Jessop, 7 Younge, L. E. 10 Eq. 297. Sim. 438. ^ Archhold v. Scully, 9 H. 158 REAL PROPERTY. the Statute to save his rights as against the mort- Query whether gagee.^ A question may be raised whether a third the third per- persoii SO entitled by possession against the mort- to the equity g^gor, but not against the mortgagee by virtue of re emp ion. ^^^ statutory Saving is or not entitled to the equity of redemption. A person wlio has bought the in- terest of both mortgagee and mortgagor is a person " claiming under the mortgage " within the Act.^ In mortgages Under sectiou 3 of the principal Act,^ where the of reversion . . . .n time cannot cstate IS a reversiou, time will not commence to run till they fau in favour of the mortgagor until the reversion falls in. . . into possession.* Where a mortgagor devises mortgaged property in settlement there will be no saving in favour of the remaindermen on their reversion falling in.' The rule, that when time has once begun to run, no dealings by way of settlement with the estate will enlarge it, is applied with strictness by section 28 as to mortgagees in possession, as no one claim- ing through the mortgagor can recover after twenty years' occupation by the mortgagee. Where, previously to a mortgage, the mortgagor has settled his property, reserving to himself a hfe- interest, it is conceived that time would not run ' Ford V. Affer, 2 Hurl. & C. 434. 279 ; 8 L. T. N. S. 546 ; Doe ^ Appendix, d. Falmer r. Eyre, 17 Q, B. * Be Lowe, 30 Beav. 95. 366. ' Br Clone v. Bishop of Cork, 2 2)oed. Baddeleyv. Massey, 1 Dr. & Wal. 700. 17 Q. B.373and20 L. J. Q. B. MORTGAGOR AND MORTGAGEE. 159 against the remaindermen in case of occupation by the mortgagee during the subsistence of the life estate of the mortgagor. There is no special saving for the disability of a mortgagor. ■* Welch mortgages are effected by a conveyance Weish mort- of property to a mortgagee, coupled with occupation by him on the understanding that he is to pay him- self the interest of the money lent by recovering the profits of the land. The land may be redeemed at any time on repayment by the mortgagor of the money lent ; and the mortgagee cannot foreclose,^ though now equity would probably compel an ac- count against the mortgagee.^ If a mortgagee after repayment of the mortgage debt continues to hold the property twenty years, the mortgagor will, it appears, be barred his right to recover it,* and it would seem as if the same would be the case under the recent Statutes, even if the money remained un- paid, if no acknowledgment of the mortgagor's title has been in the meantime made. Any arrangement for securing repayment of a loan by demise, or grant- ing annuities possessing characteristics similar to those above mentioned is considered of the nature of a Welch mortgage.^ ' See under Disability of ' Fulthrope v. Foster, 1 Mortgagor. Vem. 477. ' Talbot V. Braddil, 1 Vem. * Fenwick v. Reed, 1 Mer. 395 ; Lawley v. Hooper, 3 Atk. 115^ 280 ; Yates v. Hambly, 2 Atk. ^ Teulon v. Curtis, 1 Younge, 237. 616. 160 REAL PHOPEETY. Mortgages It would Seem, in accordance with general princl- of leasehold i i n • • t • • i by assignment ples, that there IS an important distinction between the case where a mortgage of leaseholds is made by- demise, and where it is made by assignment. In the former case the possession of a mortgagee, who enters into enjoyment of the premises, will never become adverse, so as to allow time to run in his favour against the mortgagors till the expiration of Different effect such dcmisc. Where, however, a mortgage of long methodsTsto leaseholds is made by assignment, and the mort- Limwltioni gagee enters, time will probably run in his favour against the mortgagor (though not against the ori- When mort- S^^^^ lessor), from the time of such entry. Where, gagorand however, after either an assignment or demise, the mortgagee are ' ° ' respectively in mortgagor remains in possession (unless he make possession, •-><-> i \ ^ ^ payment or other acknowledgment), time will pro- bably run in his favour against the mortgagee as his assignee or under-lessee immediately from the date of such assignment or under-lease. An under-lease of the whole residue of a term, or for a longer period, is practically an assignment.' A question might arise in such a case, however, if there should be in the deed a covenant for quiet enjoyment by the mort- gagor, whether that would not amount to a re-demise to him of the premises, and one which is not invalid through indefinitenesSj inasmuch as it could not last ' Beardman v. Wilson, L. may be raised the rela» il. 4 C. P. 57. But under tionship of landlord and special circumstances there tenant. MOKTGAGOR AND MORTGAGEE. 161 longer than the lease, and time be thus prevented running in favour of the mortgagor. Where, after the usual conditional surrender of a Mortgages of copyhold. copyhold, the mortgagor continues in possession, it does not seem to follow that the mortgagee's right of entry commences upon the execution of such sur- render, and that he will be, therefore, barred his remedy at the expiration of twenty years therefrom, subject to the usual exceptions,' inasmuch as the sur- renderee cannot maintain an action of ejectment till after he has been admitted ; ^ on the other hand it must be remembered that a mortgagee of copyholds may file a bill of foreclosure before admittance.^ As to how far copyhold tenure may be extinguished by •efflux of time the reader is referred to the case of Walters v. Webb.* Much difficulty has been felt by the Courts in Conflict of dealmg with the subject of ari'ears of niterest on mortgage mortgages in foreclosure and redemption suits. The two Acts, c. 27 and c. 42 of 3 & 4 Wm. 4, seem to overlap in the case of those mortgages where there is the usual covenant for payment of the mortgage money and interest. And the subject is scarcely as yet clearly and satisfactorily settled. Some points may, however, be mentioned as guides in the con- ' 3 & 4 Wm. 4, c. 27, ss. 1 ' Ibid. ; Sutton v. Stme, 2 and 2. Atk. 101. 2 Davidson's Pr., 3rd ed., " L. R. 5Ch. 531. See also vol. ii., pt. 2, 666 ; Holdfast v. under Copyholds. C'lapham, 1 T. R. 600. arrears. 162 REAL PROPERTY. sideration of the subject. Firstly, the difficulty arising from the conflict of the Statutes 3 & 4 Wm. 4, c. 27, s. 42, and 3 &4 Wm. 4, c. 42, owing to the fact that by the former six years' arrears alone are allowed of a charge on land, while the latter allows twenty years' arrears on a specialty, and received How to be the Royal assent last,^ is to be solved by treating Rule 1. the charge on the land and the specialty debt on the covenant, as completely distinct, and as if made in separate deeds.^ In this way, in fact, the mortgagee is in the position of a secured creditor for six years' arrears, and of an unsecured creditor for the re- mainder of the twenty.^ Rule 2. Secondly,' it seems that, notwithstanding expres- sions to the contrary in Edmunds v. Waugh* and elsewhere, that there is no difference on this point between suits for redemption and for foreclosure.^ Rule 3. Thirdly, that in all cases so far as the suit is one to realize the charge on the land, six years' arrears only are allowed, notwithstanding a covenant for payment in the deed.^ Rule 4. Fourthly, that wherever the mortgagee would be ^ See supra, Paget v. Foley, * De Viguier v. Lee, 2 Hare, 2 Bing. N. C. 679 ; Sirns 326, 334 ; Sober v. Kemp, 6 V. Thomas, 12 Ad. & Ell. 536. Hare, 155, 160; Sinclair v. ^ Sinclair v. Jackson, 17 Jackson, 17 Beav. 405. Beav. 413 ; Mvy v. Norwood, = Bowyer v. Woodman, Ex 5 De G. & S. 240. parte Clark, L. E. 3 Eq. 313 ; ' Dav. Prec, 3rd ed., vol. ii., Hughes v. Kelly, 5 Ir. Eq. 286 ; pt. 2, 572 n. Hunter v. Nockolds, 1 Mac. k 4 L. R. 1 Eq. 418. Gor. 640. MORTGAGOR AND MORTGAGEE. 163 allowed to tack a bond debt to his mortgage, if made by separate deed, he may add the further fourteen years' arrears to his principal.* Fifthly, that where there is a trust term for pay- Rui« s- ment of the mortgage, the full arrears for at least twenty years may be recovered.^ With regard to this rule, the case is the same where there is an agreement to assign a term.^ In Mason v. Broadhent * the question what amounts to such a trust is considered. Where, however, the covenant does not in terms extend to payment of interest, it would seem that it would not be within the saving as to arrears of the 3 & 4 Wm. 4, c. 42, s. 3. The mortgage debt, where there is no covenant for payment, is one of simple contract only.^ But to obtain more than six years' arrears, the Taking must question of tacking must be raised on the plead- the pleadings, ings,^ and the right may be lost by laches.^ In a case where the proceeds of sale of mortgaged 'Where pro- premises were paid into Court under a decree for ad- of mortgaged . . . PI ) 11 premises is in ministration oi the mortgagee s estate, and there Court. ' Elm/ T. Norwood, 5 De G. 1 , as to trusts. and realty, and m the case oi real property, one confirmed by Statute, that time does not create a bar in case of trust. There are, however, many ways in which the term trust is used, and the doc- trine requires some qualification. Thus it is said that a trust, to be within the saving of this prin- ciple, must be, in the first place, direct or express, and secondly, of a nature not cognisable at law but solely in equity. There is too a third qualification of the doctrine, viz., that it applies (at all events in its universality) only between the trustee and his cestui que trust} As a fact, indeed, every case of deposit or bailment in a certain way creates a trust ; but the trusts excluded from the operation of efflux of time are those technical and continuing trusts, which were not cognisable at common law,^ and where the plaintiff has no legal title, the estate at law being in the trustee.^ ' Angell, Lim., c. 16 : Story, Cr. 41 ; Bridgman v. Gill, 24 Eq. Jur. 1520, n. (1) ; A.-G. v. Beav. 302. Fishmongers' Go. (Preston's "■' Lockey v. Lochey, Preo. Ch. will), 5 M. & Cr. \Q;Wedder- 518. burn V. Wedderhurn, 4 My. & ^ Lawly v. Lawly, 9 Mod. 188 TRUSTS. Eepudiation by trustee. The Code Napoleon. Real property governed by 3 & 4 Wm. i, c. 27, s. 25, wbere there is an express trust. A trustee, however, who distinctly and openly repudiates his trusteeship and assumes to own abso- lutely may commence to acquire an adverse posses- sion against his cestui q'ue trust} A corresponding exception in the case of trusts finds a place in the French Code, the exception being perhaps of more universal application than with us. Some sections of the Civil Code referring to the questions are subjoined.^ The case of real property ^ held in trust is now provided for by section 25 of 3 & 4 Wm. 4, c. 27, by which time does not commence to run against a cestui que trust, where there is an express trust, till the trust premises have been sold to a purchaser for Rep. 32. See, however, criti- cism by Lord Eldon on this case in Cholmondeley v. Glin- trni, 1 Jac. & Walk. 171. ' Angell, Lim., 5th ed., p. 165. * " Ceux qui possedent pour autrui ne prescrivent jamais par quelque laps de temps que ce soit." Code Civil., s. 2236. "Ainsi le fermier, le d^positaire I'usufruitier et tous autres qui d6tiennent pr6cairement la chose du proprietatre ne peu- ventlaprescrire." Ibid. "Les heritiers de ceux qui tenaient la chose a quelqu'un de titres d6sign6s par I'article pr6c6- dent ne peuvent non plus pre- scrire." Ibid., s. 2237. "Nean- moins les personnes 6nonc6e3 dans les articles 2236, 2237, peuvent prescrire si le titre de leur possession se trouve inter- verti soit par une cause venant d'un tiers soit par la con- tradiction qu'elles ont oppos^e au droit du propri^taire." Ibid., s. 2238. " Ceux I que les fermiers dipositaires et autres d^tenteurs pr^caires ont transmis la chose par un titre translatif de propri6t6 peuvent la prescrire." Ibid., s. 2239. ' i. e., land and rent as de- fined in s. 1 of the same Sta- tute. TRUSTS. 189 value, and then only as ao'ainst such purchaser.^ ^'^^^ ^^ ^^ . . express trust. The first question that arises on this section is what is an express trust ? An express trust must be actually expressed in iiequisites of •' '■ an express terms by deed, will or other writing, and in such t™st. way as to vest the legal estate in the trustees. " To create an express trust," says Lord Westbury, " two things must combine, there must be a trustee with an express trust and an estate or interest vested in the trustee." "^ A difficult question arose on the construction of '^I'^'^s^^ °" land. 3 & 4 Wm. 4, c. 27, as to whether section 25, by which the saving in favour of express trusts is created, extends to the subjects dealt with in sections 40 and 42 of the Act, namely to money charges on land or rent. It was at one time held otherwise in Ireland,^ but this view was not upheld by the House of Lords,* and it is now established that when land or rent is vested in trustees upon express trust to raise legacies, annuities, or other charges, time will not run as between trustee and cestui que trust, as to any part of the principal or interest of such charges ; ^ at all events as long as the land remains in specie.® ' See Appendix. 907. ° Dickenson v. Teotsdale, 1 ° Ward v. Arch., 12 Sim. D. G. J. & Sm. 52. 472; Young ^f. Lord Waierpark, ' Knox V. Kelly, 6 Ir. Eq. R. 13 Sim. 204, 10 Jur. 1, and 15 279 j Burne v. Robinson, 1 Dm. & Walsh, 683. " Mutlow v. Bigg, ubi sup. '' Burrowes v. Gore, 6 H. L. The decision in this case was 190 TRUSTS. Time runs in favour of a purchaser for value. Even with notice. When time be- gins to run. Purchaser under a settle ment. Where exist- ence of the trusts is in dispute. Though time in cases of express trust will never run against the cestui que trust in favour of the trustee, yet it will in the case of real property, as we have seen, run in favour of a purchaser for value fron the date of his purchase.^ And this will be so even though the purchaser has notice of the trust in cases falling within the words of the Statute.'^ The actual date of the execution of the conveyances is usually the date from which time commences to run in favour of the purchaser.' The term purchaser for value includes a person taking under a settlement where there is a consideration ; thus, if a trustee on his marriage includes his cestui que trusts' property in his mar- riage settlement, it appears that this is a convey- ance for valuable consideration, so far as the consideration extends.* The saving as to trusts, however, only exists where the trust is clear. Where there is a hondfide doubt as to the existence of the trust, neither the rule nor the reason of the exception exists. "In L. J. Ch. 63 ; Cox v. Dolman, 2 D. G. M. & G. 592 ; God- rmgton v. Foley, 6 Vesey, 364 ; Lawton v. Ford, L. R. 2 Eq. 104; Mutlow V. Bigg, L. R. 18 Eq. 246. reserved on appeal, but on different grounds ; L. R. 1 C. D. 385. And see Pawsey v. Barnes, 20 L. J. Ch. 393. ' 3 & 4 Wm. 4, cap. 27, s. 25. ^ Law V. Bagwell, 4 Dru. & Wa. 398 ; Toionsend v. Town- send, I Br. C. C. 557. ' A.-G. V. Flint, 4 Hare, 147. * Petre v. Petre, 1 Drew. 371. TRUSTS. 191 question of doubt," says Lord Cottenliam, " whether any trust exists, and whether those in possession are not entitled for their own benefit, the principles of justice and the interests of mankind require that the utmost regard should be paid to the length of time during which there has been enjoyment incon- sistent with the existence of the supposed trust.^ The saving as to express trusts applies between Co-cestni que co-cestuis que trustent as well as between trustee and cestui que trust? Where one cestui que trust had been overpaid he was held liable to account to a co-cestui que trust more than six years afterwards.^ ^ A mere power in gross to sell does not confer A ™^^™ p^^^ any estate in the trustee, which is one of the requi- sites, as we have seen, to create an express trust.* There is a clear distinction between an authority and an estate,^ and therefore an executor with power to sell real estate charged with debts is not a trustee within the saving of the Statute.® The liability of a trustee for a breach of trust, The liability of ' A.-G. V. Fishmongers' Co., 592 ; Garrard v. Tuck, 8 C. 5 My. & Cr. 16. B. 231. 2 Fer Turner, L.J., dissen- ' Harris v. Harris, 29 (No. tiente, Knight-Brace, L.J., in 2) Beav. 110. Kniffht V. Bowyer, 2 D. G. & ^ Supra, p. 189. J. 421, 4 Jur. N. S. 569, 28 L. ' Fer Lord Westbury, in J. Ch. 54. See Ward v. Arch, Dichenson v. Teasdale, 14 D. 12 Sim. 472; Young v. Lord G. J. & S. 52. Waterparh, 13 Sim. 199; (7oa " Ibid.; but see J acquets. V. Dolman, 2 D. G. M. & G. Jacquet, 27 Beav. 332. 192 TRUSTS. a trustee for a though it Creates only a simple contract debt, trust creates a except when tlie trust is created by a specialty against his estate, is nevertheless a trust debt, and neither the trustee nor his executor can plead the Statute with regard to it. This has been decided in the case of Brittlehanh v. Goodwin^ though in several previous cases in Ireland it had been held that though time never ran in favour of the trustee in his lifetime, it would on his death run in favour of his executor.* In Brittlehank v. Goodwin, Giffard, Vice-Chancellor, however, decided to the contrary, in opposition to the Irish authorities, and following the dicta of several distinguished Eughsh judges, namely, of Shadwell, Vice-Chancellor, in Baker v. Martin ; ^ of Wood, then Vice-Chancellor, in Story v. Gape ; * and of Turner, Lord Justice, in Ohee v. Bishop.^ In future, therefore, a trustee and his executor or administrator will stand on the same footing as regards the Statutes of Limitation in cases of breach of trust. The Court has refused relief, however, in cases of great delay, against a trustee for a breach of trust for non-payment of surplus rents.® Covenant to A' covcnaut to Settle a sum on trusts creates simply a specialty debt, but a settlor may so act as ' L. K. 5 Eq. 545. " 5 Sim. 380. 2 Dunne Y.Boran, 13 Ir.Eq. '' 2 Jur. N. S. 706. Eep. 545 ; BnictmiY. Hutchin- ' 1 D. F. & J. 137, 141. son, 2 Ir. Ch. Eep. 648, and * Bright v. Legerton (No. 1), 3 Ir. Ch. Kep. 361 ; Adair v. 29 Beav. 60. Shaw, 1 Sell. & Lef. 243. settle. TRUSTS. 193 to constitute himself an express trustee of such a sum, even though it has never been paid. A settlor in a settlement which contained a recital that a sum had been paid to a trustee by the settlor, and a covenant by that trustee to invest the same in the joint names of himself and the settlor, was held a trustee, for the purpose of the Statutes of Limita- tion, of the sum, although it had, in iact, never been paid over to the first trustee. The settlor had in the same settlement covenanted to pay to the trustee a further sum, to be held on the same trusts, but it was held that this was simply a specialty debt, not a trust.^ Where a cestui que trust of real property is wtere cestui , 1 • 1 1 1 ^^ trust is in allowed to be in possession he stands m the legal possession. relation of tenant at will to his trustee.^ The case of a cestui que trust does not seem to be within the wording of 3 & 4 Wm. 4, c. 27. It requires a very technical reading of the 3rd section of that Statute to hold a cestui que trust within its provisions, as a cestui que trust is really " a person entitled under such instrument " in the words of the section.^ Moreover, the case of a cestui que trust is specially excluded from the provisions respecting tenants at will in section 7 of the same Act. Cestuis que trustent are certainly not within the spirit of the Act, which is thus described in ' Stone V. Stone, L. R. 5 Ch. 80. 74 ^ Appendix. ^ Freeman v. Barnes, 1 Vent. 194 TRUSTS. Garrard v. Tuck. " The object of the Statute was to settle the rights of persons adversely litigating, not to deal with cases of trustee and cestui que trust where there is but one simple interest, i. e., of the person beneficially entitled." * Where cestui Ordinarily, therefore, it would seem that on a possession. reasonable construction of the Statutes affecting the point no lapse of time will give a cestui que trust in possession a title against his trustee, and this view seems supported so far as they go by the cases on the subject.'^ There are, however, two quaUfications to this rule. In the first place it applies only to cases where the cestui que trust is the actual occu- pant himself, and not to cases where his assignees or others are in possession, who, it seems, are not precluded by the fact that the property is subject to a trust from taking advantage of the Statute.' And, secondly, the trust (as in other cases) must be express, and a merely constructive trustee in pos- session, such, for instance, as a purchaser holding under an agreement to purchase is not so affected with any trust as to be unable to take advantage of the Statute.* ' Garrard v. Tuch, 8 C. B. Lord Windsor, 2 Ves. 472 ; 231, 250. Roe d. Reads v. Reade, 8 T. R. ^ Keen v. Dear don, 8 East, 118. 248, 263; Smith v. King, 16 « Melling v. Leah, 16 C. B. East, 283 ; Burrell v. Lord 652 ; Stanway v. Rock, 4 M. & Egremont, 7 Beav. 205, 234 ; Gr. 30. Doe d. Jacobs v. Phillips, 10 Q. " Stanway v. Roch, 1 C. & B. 130 ; Garrard Y. Tuch, 8 C. M. 549. B. 231, 250; Earl Pomfret v. TRUSTS. 195 This doctrine is well illustrated by the following Purchaser in opinion of the Court in an American case : ^ — under agree- " Equity makes the vendor without deed a trustee for the vendee for the conveyance of the title, the vendee is a trustee for the payment of the pur- chase-money and the performance of the terms of the purchase. But the vendee is in no sense the trustee of the vendor as to the possession of the property sold ; the vendee claims and holds it of his own right for his own benefit, subject to no right of the vendor, save the terms which the con- tract expresses ; his possession is therefore adverse as to the property, but friendly as to the perform- ance of the conditions of the purchase." A bequest of personalty in trust to pay debts does Bequest or not at all vary the legal liability of the parties, or to pay debts. make any difference with respect to the effect and operation of the Statute itself Executors are, in point of law, trustees for creditors, and there is no- thing whatever added to their legal liabilities from the mere circumstance of the testator himself de- claring in express terms that the estate shall be subject to the payment of his debts.'^ This is so as to debts not already barred at the testator's death, ' Blight's lessee v. Rochester, Ch. 385 ; Blaheway v. Earl of 7 Wheat. (U. S.) 535. Strafford, 2 P. W. 373 ; Ough- ^ Per Lord Lyndhurst in terlony v. Earl Powis, Amb. Scott V. Jones, 4 Clark & Fin. 231 ; Proud v. Proud, 32 382. And see Anon., 1 Salk. Beav. 324. 154 ; Andrews v. Brown, Prec. o 2 196 TRUSTS. and a fortiori as to debts then barred.^ And the case is the same though the testator imagined he was dealing with realty.^ But where there is a direction to pay certain scheduled debts out of a particular fund it may be otherwise.^ A devise of realty upon trust to pay debts is upon a different footing, inasmuch as it imposes on the devisee a duty in excess of his legal liability, or rather perhaps did so previously to the Act 3 & 4 Wm. 4, c. 104. Thus a devise of realty upon trusts to pay debts will prevent the operation of the Statute in the case of debts not barred in the tes- tator's lifetime,* but will not revive debts so barred.® As a general trust to pay debts can only apply to such debts as the person creating the debt is bound to pay.^ But it is otherwise in the case of a devise in trust to pay the debts of another person, which may, it seems, revive debts barred during the devisor's lifetime.^ A simple charge of debts upon realty does not create a trust.^ ' Burlte V. Jones, 2 Ves. & * Hargreaves v. Mitchell, 6 Bea. 275. Madd. 326 ; O'Connor v. Has- ^ Scott Y.Jones, uhi supra. lam, 5 H. L. 170-75. ' Williamson v. Naylor, 2 Y. ? O'Connor v. Haslam, ubi & C. 210 n. supra; Richards v. Foster, ■• Scott V. Jojies, ubi supra ; cited in O'Connor v. Haslam, Burhe \. Jones, uhi supra. 5 H. L. 174. ' Ibid. But see Jones v. ^ Jacquet v. Jacquet, 27 Stratford, 3 P. W. 84. Beav. 332. TRUSTS. 197 It is necessary to notice that it may be contended that the distinction above referred to as existing be- tween a bequest in trust of personalty and a similar devise of really has ceased since realty has been made liable for debts by Statute, and that now realty is on the same footing as personalty upon this subject. Where there was a devise of land upon trust for "^^su for '^ sale. sale, the proceeds to be considered as part of the personal estates, and the trustees allowed part of the land to remain unsold for fifty years, it was held that the trust was an express trust within section 25 of the Statute of 3 & 4 Wm. 4, c. 27. And a decree for the execution of the trusts as to the un- sold land was made at the suit of a residuary legatee.^ But where the property had been sold and no longer existed in sjiecte, the contrary had been held.^ As a general rule, the acknowledgment of a ■^"knowiedg- ° ' _ _ ° _ ment by trus- debt by a trustee will be binding on the cestms que tees. trustent.^ A security by way of a trust for sale is to be regarded as an ordinary mortgage in reference to the Statutes of Limitation.* In Sailer v. Cavanagh,^ where a testator gave ' Mutlow V. Bigg, L. E. 18 = Toft -v. Stephenson, 1 D.G Eq. 246. This decision was M. & G. 41. afterwards reversed on appeal, * Locking v. Parker, L. R. but on different grounds. 8 Ch. 30 ; Yardley v. Holland, 2 Pawsey v. Barnes, 20 L. J. L. R. 20 Eq. 428. Ch. 393. M D. & Wal. 668. societies. 198 TRUSTS. land, producing a clear profit rental of 601., to trustees upon trust to pay annuities for life, less in amount in all than the rental, but declared no trust of the surplus, it was decided that there was de- clared an express trust within the meaning of the 25th section of the Real Property Act of Limitation, and that the heir of the testator was not barred by lapse of time from claiming the surplus. Benefit Where the funds of an association in the nature of a benefit society were vested in trustees, it was held that neither the association nor the trustees were trustees for the purposes of the Statute ; and a claim to a pension due to the widow of a member of such a society was held barred as to the chief part thereof after the lapse of more than twenty years ; in the particular case, the claim being to a sum of money payable de anno in annum, the plaintiff was allowed so much thereof as had become due within six years before filing the bill, with in- terest from the filing of the bill.^ Persons, how- ever, appointed trustees of the assets of a certain benefit society, called the " Rational Society," which was insolvent, were considered to be trustees for the creditors within the Statute.^ There is no fiduciary relation between a mutual assurance society or its trustees and a policy holder or grantee of an an- nuity.^ ' Edwards v. Warden, 9 Ch. 589. 495. ' Ibid., p. 505. 2 Pare v. Clegg, 29 Beav. TRUSTS. 199 A mistake by a trustee in possession of land, who Mistake of _ _ . trustee in pos- treats a wrong person as equitably entitled, will not session. affect the rights of the rightful claimant. He is in possession on behalf of his cestuis que trustent, and his making a mistake as to the persons who are really entitled, will not affect the question.^ ' Lister v. Pickford, 34 Beav. 576. 200 ACCOUNTS AND PARTNERSHIP. CHAPTER XXI. ACCOUNTS AND PARTNERSHIP. Action of ac- The old actioii of account was one of the most ancient forms of action at the Common Law, but though attempts were made from time to time to revive it, it gradually fell into disuse, being super- seded by the more convenient method of a suit in Equity ; ^ though in simple cases in the form of assumpsit it still practically continued.'^ Limitation of time in Equity was early held in this respect to be the same as that in law.^ Where all the items of an account are on one side, as, for instance, in a tradesman's bill, the fact that some items are within the time allowed does not take the earlier items out of the operation of the Statute.* Mutual open Difficulty was early felt in the treatment of mutual accounts. Old , . , . . , . difficulties. accounts, which it was thought might be exempted from the ordinary Statute Law of Limitations, partly on the terms (now altered) of the then existing ' Story, Eq. Jur. 442. * Roharts v. Roharts, 1 M. ' Ibid. & P. 487; Ashhy v. James, 11 3 hockey y. Lochey, Prec. Ch. M. & W. 542 ; Smith v. Forty, 518. 4C. &P. 126. ACCOUNTS. 201 Statute, which excepted from its operation mer- chant's accounts, and partly upon broad general principles. It was laid down in Scudamore v. White,^ that the Statute had no application in the case of open accounts. Lord Talbot^ however, held, in accordance with what seems the present law, that an open mutual account is within the Statute, unless there is some item of charge and debit within six years before the bill was filed.^ And Lord Eldon says, " between common persons (that was to say, amongst persons not coming within the then existing exception as to the accounts of merchants), as long as the account is continued, the Statute does not apply * * * but between merchants an open account will do though there has been no dealing within six years." In Catlinq v. /S/^OMZc/mo,^ Lord ^"i^™ there _ "^ "^_ are mutual ac- Kenyon said, that where there was no item of counts each item sets time account within six years, the plamtiff would be pre- running afresh. eluded from his remedy unless he could bring his case within (the now abolished) exception as to merchants' accounts. And this seems to be the present law ; so that, where there have been mutual accounts, the Statute is retarded by every fresh item, provided such item is within six years of previous items. And it seems to make no difference on 1 1 Vern. 474.' cote, 2 Eden, 169 ; Barher v. ^ See Foster v. Hodgson, 19 Barher, 18 Ves. 286 ; RoUnson Ves. 183. V. Alexander, 2 CI. & Fin. 3 6 Term Rep. See also on 717. the subject Martin v. Heath- 202 ACCOUNTS. stated. which side the items are which are within the six years. ^ There must be a really mutual or " alternate " course of dealing to bring accounts within the exception. Thus, in cases where all the items of the account were on one side, as in the case of a tradesman's bill, even before the last-meutioned enactment, it was held that the fact of some items being within the statutory six years, did not exclude the bar of the Statute as to the earlier items.^ And where articles are continuously delivered by tradesmen or others, time runs as to each separate article from its delivery.^ Account As soon as an account ceases to be open and becomes an account stated, the balance which is found due is at once subject to the ordinary law of limitations.* However, this balance may become an item in a fresh account. Thus, in Farrington v. Lee,^ North, C.J., agreeing with Wyndham and Scroggs, JJ., says, " If after an account stated, upon the balance of it a sum appear due to either of the parties, which sum is not paid, but is afterwards thrown into a new ' Ord V. Ruspini, 2 Esp. M. & E. 45 j Mills v. Fowhes, 7 569. Scott, 444 ; Cottam v. Part- ^ Eoharts y.Jiobarts, 1 M. & ridge, 4 M. & Gr. 271 ; Clark P. 487; Ashlyy. James, 11 M. v. Alexander, 8 Scott, N. K. & W. 542 ; Smith v. Forty, 4 147 ; Waller v. Lacy, 1 M. & C. & P. 126. G. 54. ^ Angell, 5tli ed., p. 13. '1 Mod. 270, * Williams v. Grifiths, 2 Or. ACCOUNTS. 203 account between the same parties, it is now slipped out of the Statute again." And now there is Legislative authority, by virtue Open accounts. of section 9 of the Act 19 & 20 Vict., c. 97 (com- monly known as the Mercantile Law Amendment Act), that a subsequent transaction will not have the effect of removing the bar of time where an account has already ceased for six years. The words of the section are as follows : — " No claim in respect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by action or suit, by reason only of some other matter or claim comprised in the same account having arisen within six years next before the commencement of such action or suit." Lord Westbury, in Knox v. (%e,^ states that this enact- ment was directed against the erroneous notion that an account, which had been barred by lapse of time, might be considered as opened and revived by the receipt of a subsequent sum of money more than six years after the date of the last entry. The accounts of merchants were, in the Act of Accounts-mer- James the First, excepted to some extent from the operation of the Statute. The extent of this ex- ception was a subject of much disagreement. In some cases, as in Catling v. Skoulding^ it is implied that in such accounts mere time would never constitute a bar. On the other hand, Henley, L.C., laid down the rule following : — " The difference ' L. K. 5 H. L. 674. ^ 6 Term Rep. 189. 204 PARTNERSHIP. between merchants' accounts and those of other per- sons is that a continuation afterwards will prevent the Statute running against the former accounts, but will be a bar as to all articles before six years in other accounts." ^ But the question is now one of little importance, except as illustrating the law as to accounts in general, the exception in favour of accounts-merchant having been abolished by the 9th section of the Mercantile Law Amendment Act, 1856.^ Statute does So long as a partnership continues existing, and during apart- cach partner is in the exercise of his rights and ners ip. ^^^^ enjoymcnt of his property, the Statute Law of Limitations has no application at all between the partners.^ Account be- Where one partner dies, questions of difficulty and ing and dead much importance have been raised as to what length partner barred ^ ,. ,.« \ -n i i ■ ; • p p after six years, ot time (it any) Will DC a bar against or m tavour oi (as the case maybe) the deceased partner's estate. The subject was very much considered in the recent case of Knox V. Gye^ on appeal to the House of Lords.* The result of the decision in that case, which was in effect an action by the appellant, as executor of the deceased partner, against the surviving partner for ^ Martin v. Heaihcote, 2 Ed. 169. ^ Appendix. ^ Lindley on Partnership, vol. ii., 980 ; Miller v. Miller, L. E. 8 Eq. 499 ; MUlington V. Holland, W. N. 22, Nov. 1869 ; Robinson v. Alexander, 2 CI. & Fin. 717 j Foster v. Hodgson, 19 Ves. 183. ' L. R. 5 H. L. 674. PARTNERSHIP. 205 an account of the share of the deceased partner, seems to be that a Court of Equity will not decree an account between a surviving partner and the estate of a deceased partner after the lapse of six years, and that whether the surviving partner be plaintiff or defendant. And further, that the punctum temporis from which time commences to run is the date at which the partnership estate is vested in such surviving partner.^ The decision in Knox v. Gye was, according to Knox v. Gye. Lord Westbury, in accordance with long-settled law which had been laid down as early as Lochey v. Lockey."^ And in Tatam v. Wtllmms,^ Wigram, V.-C, says, " In this Court there is direct and very high authority for the proposition that a Court of Equity will not, after six years' acquies- cence * * * decree an account between a surviving partner and the estate of a deceased partner ; " but it must be observed that the deci- sion of their lordships in Knox v. Gye was not unanimous. Lord Hatherley being the dissentient. The real difficulty involved in denying to the representatives of a deceased partner an account against a surviving partner, after the lapse of six years, arises in cases where valuable partnership assets fall in to the surviving partner after that period. In Knox v. Gye,* Lord Colonsay remarks on this point as follows : — " I do not say that if a 1 Ibid. ' 3 Ha. 347. 2 Prec. in Ch. 518. "• Uhi supra. 206 PARTNERSHIP. sum is unexpectedly recovered after the lapse of six years, tlie executor of the deceased partner, though he has lost the right to sue for an account of the partnership concerns, may not in another kind of suit demand a share of the particular fund so recovered." The observations of Lord Chelmsford on the subject in the same case are as follows : — " There may be a difficulty in determining vfhat is the right of an executor of a deceased partner when he has allowed the Statute of Limitations to run against his claim to an account, and a debt has been received by the surviving partner after the six years has elapsed. But this is a difficulty occa- sioned by his own laches, and I see no reason why, if he thinks that -his interest in the sum received has not been absorbed by its application to pay debts due from the partnership, why he should not have a right to sue for his share in this sum (a very different thing from a suit for an account of all the partnership transactions), the surviving partner being at liberty to defend himself by alleging and proving that the whole sum received has been applied, or was applicable to the payment of part- nership liabilities." It may be remarked, however, that according to the dictum of Lord Westbury, in the same case of Knox V. Gye^ the representatives of a deceased partner has no specific interest in, or claim upon any part of the partnership estate, so that it seems doubtful how far he would be able, as suggested PARTNERSHIP. -07 by Lord Colonsay, to sue for the share of any newly-acquired asset as primd facie due to him, and in that way, in fact, obtain an account from the defendant by throwing the onus of proof (which would, in fact, require an account of the partner- ship transactions) upon the defendant, to show that the whole or part of such plaintiff's primd facie share was applicable to satisfy partnership liabilities. Further, it is difficult to see' how laches could be imputed on the part of the representatives of a deceased partner, at all events in respect of unexpected assets which fall in after the lapse of six years, in respect that he has not kept alive his right to have an account by filing a bill or even, as suggested by Lord Hatherley, who (as has been said) dissented from the judgment by filing con- tinuous bills at sexennial intervals. It was in Survmngpart- ner is not a the case, now in discussion, contended that a sur- trustee of the viving partner was a trustee of the partnership assets, and as such not within the Statute Law of Limitations, but this contention was (Lord Hatherley dissenting) overruled ; Lord Westbury expressing a olear opinion that there was no fiduciary relation between a surviving partner and the representatives of one deceased, and that the former was not a trustee in the strict and full sense of the term, the term being so used only by a convenient but deceptive metaphor, and the rights of the parties being strictly legal rights. As long as a partnership continues each partner Acknowiedg- 2^° PARTNERSHIP. ment by part- ig an agent for the purpose of making an acknow- ledgment under the Statute of Limitations.^ Under the old theory of acknowledgment an ac- knowledgment made by a continuing partner after a dissolution of partnership might revive a debt,^ but under the new theory and since the Mercantile Law Amendment Act, 1856, such agency will terminate at dissolution, and after a partnership is dissolved one of the late firm cannot by his act or admission involve his co-partner in any new legal liability.^ It is possible, however, that it might be otherwise if the admission consisted of a part payment out of assets belonging to the late firm.* If a partner die during the partnership it seems that the maxim contra non valentem agere non cur- rit lex prevails and that time will not run against his estate, and in favour of the surviving partner, till there is administration to the estate of the dead partner, unless there have been disputes so as to give a cause of action before the death of the dead partner.^ ' Watson V. Woodman, L. E. Waithman, 3 Drew. 628 ; B'ris- 20 Eq. 730. tow v. Miller, 11 Jr. L. E. 461 ; = Wood V. Brodick, 1 Taunt. Kilgour v. Finlyson, 1 H. B. 104 ; Pritchard v. Draper, 1 155. Euss. & Myl. 191. < Watson v. Woodman, L. E. ' Watson V. Woodman, L. E. 20 Eq. 431. 20 Eq. 721 ; Thompson v. '" Angell (6th ed.), 58. LEGACIES- 209 CHAPTER XXII. LEGACIES. The Statute 3 & 4 Wm. 4, c. 27, s. 40 applies to 3 & 4 wm. 4, c. 27 s. 40 all legacies whether charged upon land or not,^ and applies to ai'i to residuary property.^ Previously to that Statute ^^^'^^ ' the right of a legatee was never barred except by presumption of payment, and there could be no pre- sumption of payment contrary to the duty of an executor.* The present Statute limits the time for the recovery of a legacy to the period of tvfenty years after a present right to receive the same.* That is to say usually, and except as to after- Legatee has "a acquired assets, from the expiration of one year from to receive " the testator's death, from which time the legatee isenTS me^ entitled to interest.® Romilly, Master of the Rolls, ^^^^' in Earle v. Bellingham^^ held that the two periods, namely that from which the Statute commences to run, and that from which interest is payable are identical. ' This was doubted, see be twelve years. See Appen- Bullook V. Downes, 9 H. L. 1 ; dix, 37 U Ves. 273. ' See Appendix. ^ Wilmot's Notes, 58. But * E. P. Commissioners' First as to Torts, see Index. Rep., p. 58. till. 218 FEAUD. discovered by the other, the Statute shall not operate as a bar is this, that the Statute ought not in con- science to run ; the conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time.^ Ejectment Though equity will, even independently of any Statute, relieve against fraud,'^ non-discovery of the fraud till within the proper period must be alleged in the bill,^ and in law it is said that fraud will not prevent the operation of the Statute, however great or however carefully concealed it may have been.* Consequently, it was decided that a mere ejectment bill, which formerly could not otherwise have been properly brought into a Court of Equity, might be properly so brought where fraud was involved.® On the contrary, there are cases in which it has been held that, fraud may form a good replication in law.^ And a similar doubt still exists in America,^ but in any case it appears that equity had a con- current jurisdiction. And the question now, since ' Hovenden v. Lord Annes- 391 n; CheiharriY. Hoare, L. ley : 2 Sch. & Lef. 634. E. 9 Eq. 571 ; Peire v. Petre, ^ Smith Sea Go. v. Wymond- 1 Drew. 371-97. sell, 3 P. W. 143. ^ Bree v. Holhech, Doug. => Ibid. 664 ; Brown v. Howard, 3 B. " ProoJcsbank v. Smith, 2 Y. & Bing. 73. & Coll. 58 ; Imperial Gas Light ' See opinions of Mr. Justice Co. V. London Gas Co., 10 Ex. Spencer in Troupe v. Smith, 39 ; Parham v. Macrory, 6 20 Johns. (N. Y.) 33, and of Kich. Eq. 140. Mr. Justice Story in Sherioood ' Vane v. Vane, L. K. 8 Ch. v. Sutton, 5 Mason, 149. FRAUD. 219 the attempted fusion of Law and Equity, is perhaps of little impoi'tance. Such fraud as will in equity prevent the bar of The fraud must the Statute must be distinct in its characteristic,^ and mere wrongful entry or possession is not equi- valent to fraud unless there is designed concealment of important circumstances from the rightful owner. It has been decided that possession through a con- veyance from a lunatic is not of itself evidence of fraud. ^ But it would be otherwise if mala fides were proved on the part of the purchaser.^ Where a fine was levied with proclamations by a person aware of a flaw in his title, it was considered not a case of fraud, so as to take the case out of the then existing Law of Limitations.* It will be observed that the exception introduced whatiscon- ,,1. ,. T i-.i p in cealed fraud by this section applies only m the case oi concealed wiihm the fraud. And further, so long only as with due dili- gence the fraud could not have been detected. There- fore, in Chetham v. Hoare, where a register-book containing a certificate of marriage which formed a principal link in the title of the plaintiff had been fraudulently mutilated, as was alleged in the bill by one Edward Chetham, counsellor at law, yet it was held by Malins, V.-C, on demurrer, that the ' Petre v. Petre, 1 Drew. ' Lewis v. Thomas, 3 Ha. 26. 397 ; Dean v. Thwaite, 21 * Langley v. Fisher, 9 Beav. Beav. 621. 90 ; 15 L. J. Ch. 73. And see '^ Price V. Berrington, 3 Mac. Bellamy v. Sabine, 2 Ph. C. C. & G. 486 ; Manby v. Bewicke, 425. 3 K. & J. 342. 220 FRAUD. Dulness of claimant's intellect. Fraud is not readily pre- sumed at a distance of time. fraud could have been discovered earlier with proper diligence, and that the bill was too late.-' In this case the claim had, in fact, lain dormant for nearly one hundred and fifty years. Where an estate was intentionally omitted from an insolvent's schedule, it was considered an instance of concealed fraud. ^ The Court will not enter into the question how far a fraud has been in effect concealed, owing to the exceptional dulness of the lawful claimant's intellect.^ Where the question of fraud is raised, but there is a doubt of the existence of such fraud, the Court will not be inclined to presume it at a great distance of time, but will require strong primd facie evi- dence.* "Length of time," said Mr. Justice Story, in an American case, " necessarily obscures all human evidence ; and as it thus removes from the parties all the immediate means to verify the nature of the original transaction, it operates by way of presumption in favour of innocence and against the imputation of fraud." * ' Cheiham v. Hoare, L. R. 9 Eq. 571. ^ Stwrgis v. Morse, 24 Beav. 641. ^ Manhy v. Bewiche, 3 K. & J. 342 ; Bridgman v. Gill, 24 Beav. 302. " Charter v. Trevelyan, 4 L. J. N. S. Ch. 239; 11 CI. & Fin. 714 ; Bonneyv. Ridgard, cited in 17 Ves. 97. * Prevost V. Gratz, 6 Wheat. (U. S.) 481. In The Marquis of Clanricarde v. Henning, 30 Beav. 175, a bill to impeach a purchase by a solicitor from his client was considered too late after a lapse of more than forty years. FRAUD. 221 It will be seen that an innocent purchaser for An innocent value is, by the 26th section of the Act of William protected. the Fourth, protected against the claims which the rightful owner might have otherwise prosecuted, on the ground of original fraud by those from whom such a purchaser claims. The effect of the section seems to be to strike out the fraud altogether as against such purchaser, so that he is at once pro- tected on making his purchase if the legal time has expired previously to his purchase. An innocent person claiming under a marriage ciaimantunder , , 1 1 -ii j_ j_- • 1 1 j_ 1 a settlement settlement without notice is no doubt a purchaser may be such. for value ; and the express wording of the section seems to point to something more than constructive notice, in fact, to some personal knowledge on the part of a person who claims protection as such a purchaser in order to defeat his claim.' But with Effect of kuow- 1 -T TT-iT- ledge by pur- reierence to that question, James, L.J., m dehvering chaser's agent, the judgment of the Court in Vane v. Vane,^ re- marks as follows : — " It appears to us beyond all question that, as the law of this Court stood when the Statute was passed, the knowledge of the purchaser's agent, acquired in the course of the transaction, was for all purposes treated as the knowledge of the principal. It is also, we conceive, beyond question that, in every case except under this section, the Court would treat the knowledge of the purchaser's agent as the knowledge of the 1 Vane v. Vane, L. E. 8 Ch. » Ibid. 383. 222 FRAUD. purchaser. Was it, then, meant to make such a material alteration in the law ? It is said in support of that (and not without force), that the words well known to the Court, ' purchaser for valuable con- sideration without notice,' were designedly not used, and the words, ' who had not participated in the fraud, and did not know, arid had no reason to believe,' were designedly introduced, so that only those purchasers should be aifected who had actual knowledge, and who were, in truth, making them- selves morally accomplices in the fraud, in fact, receivers of stolen goods. But we think that what the Legislature meant to do was to exclude that constructive notice, which had certainly been carried to a very startling extent in many instances, and that it did not mean to subvert, in respect of one small portion of the law of this Court, the well- settled principles and rules on which all the Courts have acted in respect of the relation of principal and agent, and in respect of the extent to which the knowledge of the latter is deemed to be the know- ledge of the former. The Courts had, in fact, held, almost in so many words, that what the agent knows the principal knows, that the knowledge of the agent was sufficient to create mala fides in the principal, and we think it therefore reasonable to hold that the Legislature used the words in the same sense, and that when they said, ' who did not know, or had not reason to believe,' they meant, ' who did not know or had not reason to believe either by FRAUD. 223 himse.lf or by some agent, whose knowledge or reason to believe is by settled law deemed and taken to be his.' We think it would lead to very startling consequences if any other interpretation were put upon the clause. It is obvious that if actual personal knowledge were required, every corporation or joint- stock company might acquire a good title to pro- perty, although its officers and solicitors were per- fectly conversant with the grossest fraud perpetrated by the vendor ; and, in fact, any person might deal with impunity in the purchase of what is in sub- stance stolen property, provided he takes care to leave the whole dealing from first to last in the hands of his agent." 224 EXECUTORS AND ADMINISTEATOES. CHAPTER XXIV. EXECUTORS AND ADMINISTRATORS. Executor may When the remedy for a debt is barred by lapse in his discre- „ . , . . tiou pay barred 01 time, an executor or admmistrator is neverthe- less not obliged to take advantage of the Statute, but may at his discretion satisfy the debt. " No execu- tor," said Lord Hardwicke, " is compellable either in law or equity to take advantage of the Statute of Limitations against a claim otherwise well founded." ' In fact, it has been treated as almost a duty in some cases for an executor to satisfy in that way, in his representative character, the conscience of his testator.^ And Lord Hatherley, when Vice- Chancellor, in overruling a case of M''Culloch v. Baioes^ remarks as follows: — " It certainly cannot be considered to be law at the present day, that executors paying a debt . against the recovery of which the Statute of Limitations might be pleaded as a legal bar render themselves liable to those who are interested in the testator's property.* ' Norton v. Wrecker, 1 Atk. ' 9 Dowl. Remington v. Stevens, 2 Ha. 539 ; 15 L. J. Ch. 204. 240 EXECUTORS AND ADMINISTRATORS. under an intestacy, on the ground that one of the next of kin of an intestate can take no share of the estate until he has discharged his obligation to it, and paid the debt in fuU.^ ' In re CordweU's Estate, L. R. 20 Eq. 644. EFFECT OF INSTITUTION OF ACTION. 241 CHAPTER XXV. EFFECT OF INSTITUTION OF ACTION. Much doubt has been felt, and indeed remains, ^^«'=* "* "i^- cree. as to bow far the institution of a suit will prevent time running against creditors other than the jplain- tiff. In Sterndale v. Hanhinson,^ it was decided that on a bill filed by one creditor on behalf of him- self and all other creditors of the estate, all creditors who came in under the decree had an inchoate in- terest in the suit from the time of the filing of the bill, to the extent of its being considered as a de- mand by them, so that their debt would not be barred, though the decree itself was not made till the debt was six years old. Similarly in O'Kelly v. Bodldn^ it was held, that a creditor coming in and taking proper proceedings under a decree, may be considered as having adopted the suit ab initio. And it was considered that the fact that the bill was not in form filed on behalf of other creditors, as well as the plaintiff, was unimportant.^ These cases, which seem agreeable to common Effect of sense were, however, decided before the passing of ' I Sim. 393. ' Jbid., p. 369 ; but see 2 2 Ir. Eq. 361-70. Watson v. Birch, 15 Sim. 523. 242 EFFECT OF INSTITUTION OF ACTION. tKe 3 & 4 Wm. 4, c. 27, and it is said that tliey are not applicable to cases within that Act since it has been passed.^ And notwithstanding that Lord St. Leonards' remarks in Bermingham v. Burke^ that (Courts of Equity should be cautious not to render it necessary for every creditor to file a bill upon his debtor's death, yet upon the authority of the cases,^ it would seem that no creditor (one by simple contract perhaps excepted) can at present be advised that he can safely trust to the institution of a suit by any one but himself as a means to pre- vent the Statute running against his demand in the interval between the institution of the suit and his claim under the decree, though it seems probable that if such creditor be made a defendant to the suit, he will be protected from that date,* or if he bring in a claim under the decree from the date of his claim,^ but the question requires further judicial interpretation. One point is, at all events certain, namely, that a creditor who comes in late under a ' Berrington v. Evans, 3 Y. Sim. 523 ; Humble v. Humble, & C. 384. 24 Beav. 535 ; Barrett v. Ber- 2 2 J. & L. 699. mingham, 4 Ir. Eq. 537 ; Gh-eeri- ' See generally on the sub- way v. Bromfield, 9 Ha. 201 j ject, Stem 9 Geo. 3, c. 16. This Act is amended by the Statute 24 & 25 Vict, 0. 62. See Ap- pendix. ^ Ibid. ^ 48 Geo. 3, c. 47. ' 7 & 8 Vict., c. 105 ; 23 & 24 Vict., c. 53, and 24 & 25 Vict., c. 62. THE CEOWN. 251 been " put in charge," a mode of expression not applicable to advowsons.' In the Act of 9 Geo. 3, there were certain excep- Exceptions in tions in favour of the Crown in cases where the title Te^p„g ™t_ of the Crown had been acknowledged, by reason that the manor or other hereditaments had been in charge to the Crown or stood insuper of record, and also where as to a different part of the manor or other hereditaments in question the Crown's right had been preserved. These exceptions have beennemoveaby abolished by a - recent Act,^ and provision is made by™"^''* °'^' the same Act, that where the Crown has made a lease of any manor or other hereditament, the right of the Crown against any person whose possession commences subsequently to the lease shall not be considered to accrue till the expiration of the lease.^ It has been said that the remedy only of the Question Crown is barred by the Nullum Tempus Act* and Nullum Temp- that the title is not transferred, and words of Lord "d thl iem*edy' Ellenborough in a case of Goodtitle v. Baldwin^ °" ^' have been supposed (but perhaps without sufficient reason) to support this view. The privilege of the Crown has been extended to a lessee of the crown out of possession more than twenty years.® ' Gihmi V. Clarle, 1 Jac. & 39 & 40 Vict., c. 37. W. 159. " 9 Geo. 3, c. 16. = 24&25Vict.,c. 62, ss. 1,3. " 11 East, 488. ^ Ibid., 3. 4. A similar Act ^ Boe v. Roberts, 13 M. & was framed in the last session W. 520. But see Lee v. Norris, for Ireland. See Appendix, Cro. Eliz. 331. 252 THE CROWIT. Crown may Althougli the Crowii is not affected prejudicially of Statutes not by any particular Statute of Limitation it may yet ™ '"^ ^ ■ take the advantage of it.' Independently of the Statute, a grant from the Crown may be presumed where the grant would not have been in excess of the prerogative. In Good- title v. Baldvyin^ EUenborough, C.J., remarked that it was the daily practice of the Courts to presume a grant of markets and the like upon an uninterrupted enjoyment of twenty years. No grant can be presumed to have been made by the Crown against the express provisions of any Statute.^ In all cases where not specially named the Crown is not affected by Statutes of Limitation, conse- quently there is no limit to the time for the recovery of Crown debts. Though between the Crown and its immediate debtor the Statutes have no applica- tion,* yet when the Crown takes as assignee the rights of a subject, through a forfeiture or otherwise, there is more difficulty in the question. It seems that where the Crown has a derivative title it stands in the same position as its principal.^ Thus, it has been considered that where the debt to the principal No bar as to Crown debts. Cases where Crown is as- signee of a debt. ' 11 Co. 68 b. But see Rustomjee v. Tlie Queen, L. K. 1 Q. B. D. 487. ^ UM supra. See Mayor of Hull V. Horner, 1 Cowp. 102. ' Goodtitle V. Baldwin, 11 East, 488 ; Doe d. Devine v. Wilson, 10 Moore, 502. ^ The King v. Morrall, 6 Price, 24. ' Lambert v. Taylor, 4 B. & C. 138. THE CROWN. 253 is already barred, the transfer to the Crown will not revive it ; but, if time is running against the principal, it will cease to run on the debt becoming vested in the Crown,^ this being an exception to the general rule, that time having commenced to run will not stop. It was decided in an American case that a debt "^^^^ ^™^ is a trader. due to a State bank was due to the State, and con- sequently not barrable by the Statute.** On the other side it has been said to be a settled principle that, where a Sovereign becomes a member of a trading company, he divests himself to that extent of the prerogatives of Sovereignty and assumes the character of a private citizen.' It follows from what has been said that the Petition of right. Statute Law of Limitations does not affect Petitions of Right.* ' Ibid. This seems to be " State Bank of Illinois v. the law in America. See Brown, 1 Scam. (111.) R. 106. United States v. White, 2 Hill ' Angell, 5th ed., p. 41. (N. Y. R.) 59, and Angell, * Rustomjee v. The Queen, 5th ed. 32. L. R. 1 Q. B. D. 487. 254 COMPUTATION OF TIME. CHAPTER XXVIIL COMPUTATION OF TIME. In calculating tlie various periods fixed by the different Statutes of Limitation, which date for the most part from the time of the accrual of the cause of action, a difficulty has sometimes arisen whether the day of such accrual ought to be excluded or in- cluded in the computation. Now, inasmuch as frac- tions of a day are not recognised in English law, the day must be either included or excluded in entirety.^ As the law on this point is neither satisfactory nor certain, and as the question is one not belonging pecuKarly to the subject of this work, it will suffice here to discuss the matter very -briefly. The question was carefully considered, and the then existing authorities examined by Sir William Grant in Lester V. Garland."^ The result of the learned judge's decision in that case seems to be that there is no settled general rule, and that the day of the event ' Notwithstanding the old justice to ascertain the exact maxim of law, yet the fiction hour or minute. Fearpoint v. that there is no fraction of a Graham, 4 Wash. (U. S.) R. day will, it is said, no longer 232, and valuable remarks in prevail, where it becomes es- Angell, 6th ed., cap. 6. sential for the purposes of ^ 15 Vesey, 248. COMPUTATION OF TIME. 255 in each case must be included or not, as may be most conducive to the beneficial operation of the particular Act, but that, however, where the act from which time is to commence to run is one to which the party who seeks to extend the period of the act is privy, then there is a presumption in favour of including the day of such act in the period. Again in the case of Pellew v. Hundred of Win- ford,^ Lord Tenterden said that it was impossible to reconcile all the cases, or to deduce from them any clear rule or principle. In an action on the Statute of Hue and Cry,^ it was decided by a majority of the Court that the day of the robbery was to be included in computing the period within which it was neces- sary to bring the action. This was so decided partly on the ground that though the party robbed was deserving of relief and pity, yet as against the innocent Hundred the law was highly penal. Under the Statute 2 Geo. 2, c. 23, which directs that no solicitor shall commence an action for the recovery of his fees until the expiration of one month after he shall have delivered his bill it has been decided that the month is to be reckoned exclusively of the days on which the bill is delivered and the action brought.^ In the absence of special circumstances which Meaning of may lead to a contrary conclusion, a month at Com- "month." 1 9 B. & C. 139. ' Blunt v. Heslop, 8 A. & ^ Norris v. Hundred of Gau- E. 577. tris, Hobart, 139. 256 COMPUTATION OF TIME. men Law and in temporal matters is usually held to mean a lunar and not a calendar month. But now it is enacted by 13 & 14 Vict., c. 21, that in all statutes the word month shall be deemed and taken to mean calendar month, unless words be added which show that lunar month is intended. The effect of this Statute is, therefore, in regard to the construction of Acts of Parliament, to shift the onus of proof of the meaning of the term. But except so far as the Act extends, the term month still in temporal matters primd facie means lunar month, though it is otherwise in ecclesiastical matters.^ In mortgage transactions, too, a month means calendar month.'* In considering what is the length of a calendar month, it is sufficient when the months are broken, whatever may be their length, to go from one day in one month to the corresponding day in the other.' In Mitchell v. Foster* it was decided that the expression "ten days' notice at least " in a Statute means ten clear days, exclusively both of the day on which proceedings are taken and of the day on which the cause arose. ' Hipwell V. Knight, 1 Y. & Q. B. 1046. C. 401 ; Parsons v. Chamber- ^ Dav. Prec, 3rd ed., vol. ii, lain, 4 Wend. (N. Y.) R. 512; pt. 2, p. 863 (note s). Stephens' BL, 7th ed., vol. i., ^ ji^y 283 ; Walker v. Clements, 15 * 4 Per. & Dav. 150. THE CHURCH. 257 CHAPTER XXIX. THE CHUECH. The rights of the bishops, clergy, and other spiritual persons, to recover land or rent in right of their benefices, are now chiefly regulated by the 29th section of the 3 & 4 Wm. 4, c. 27. They must be exercised within two incumbencies and six years or sixty years, whichever is the longer. The section is as follows : — " Provided always, that it shall be lawful for any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other spiritual or eleemosynary corporation sole, to make an entry or distress, or to bring an action or suit, to recover any land or rent within such period as hereinafter is mentioned next after the time at which the right of such corporation sole, or of his predecessor, to make such entry or distress or bring such action or suit, shall first have accrued ; (that is to say,) the period during which two persuns in succession shall have held the office or bene- fice, in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the time of such two incumbencies and such term of six years taken to- 258 THE CHUEOH. gether shall amount to the full period of sixty years, and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will, with the time of the holding of such two persons and such six years, make up the full period of sixty years ; and after the said 31st of December, 1833, no such entry, distress, action, or suit shall be made or brought at any time beyond the determination of such period." Tithes. There has been much doubt whether tithe rent- charge in the hands of a clergyman or other spiritual or eleemosynary corporation sole is in- cluded in this section. Tithes, moduses and com- positions, in the hands of such a spiritual or elee- mosynary corporation sole, are excepted by virtue of the interpretation clause of the Act.^ They are, indeed, as chattel interests (that is to say, as be- tween the landowner and the owner of the tithes and moduses), governed by the Statute 2 & 3 Wm. 4, c. 100 ; but, as regards the inheritance in them, they appear exempt from the operation of the Statute Law of Limitations. In fact, as between rival claimants to the inheritance in tithes, moduses, and compositions, the maxim, Nullum tempus occurrit ecclesicB appears to survive.'^ It would seem indeed as if tithe rent-charge would be held to be on the same footing as tithes, moduses, and compositions, 1 3 & 4 Wm. 4, c. 27, s. 1. G. M. & G. 471. 2 Dean of Ely v. Bliss, 2 D. THE CHDRCH. 259 being strictly a tithe composition, so as to be governed by the Statute 2 & 3 Wm. 4, c. 100, as a chattel interest, and to be without statutory limitation as an inheritance ; but the question has not, it is believed, been settled by authority, and it may be argued that it is within the Statute 3 & 4 Wm. 4, c. 27, s. 29, as between rival claimants to the inheritance.* In an Irish case it has been laid down that tithe Tithes. rent charge clearly falls within either the term " land," or the term " rent," for the purposes of the 3 & 4 Wm. 4, c. 27,^ but this view (if correct) does not dispose of the whole difficulty, inasmuch as tithe rent-charge belonging to an eleemosynary corporation sole, if it fall within the Statute as " land," on the ground that " land " is, by the in- terpretation clause to include tithes, would also fall within the exception mentioned as to tithes and moduses. If tithe rent-charge in the hands of a spiritual corporation sole, falls not under 3 & 4 Wm. 4, c. 27, but solely under the 2 & 3 Wm. 4, c. 100, it is not as an inheritance subject to any Statute of Limitation. The period within which a patron may recover AiItowsod. his right to present to a benefice is regulated by section 30 of the Statute 3 & 4 Wm. 4, c. 27, and is fixed to be the period of three adverse incum- ' Dean of Ely v. Bliss, 5 ^ Shiel v. Incorporated So- Beavan, 574; Darby & Bo- ciety, 10 Ir. Eq. E. 416. sanquet, 377. s 2 260 THE CHUECH. bencies, or of sixty years, whicliever is the longer. The section is as follows : — " That after the said 31st of December, 1833, no person shall bring any quare impedit or other action, or any suit, to en- force a right to present to or bestow any church, vicarage, or other ecclesiastical benefice as the patron thereof, after the expiration of such period as hereinafter is mentioned ; (that is to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presen- tation or gift of such person, or of some person through whom he claims, if the times of such in- cumbencies taken together shall amount to the full period of sixty years ; and if the times of such in- cumbencies shall not together amount to the full period of sixty years, then after the expiration of such further time as with the times of such in- cumbencies, will make up the full period of sixty years." It is to be observed that the old doctrine of adverse possession is revived for the purposes of this section. By section 31 of the same Act,^ in cases where the Crown or the ordinary after a clerk has obtained possession of a benefice adversely presents or col- lates a clerk thereto by reason of a lapse, such last-named clerk is to be considered to have obtained possession adversely to the patron ; but ' See Appendix. THE CHURCH. 261 where a clerk is appointed by the Crown to a benefice vacant by the appointment of the incum- bent to a bishopric, the incumbency of such clerk is to be considered a continuation of that of the in- cumbent so made bishop. In modern times, and in ordinary langjuaore, the Meaning of •' ° ° ' term "advow- terra advowson is confined to mean the perpetual son." right of presentation to a church or other ecclesias- tical benefice.^ A benefice is not made spiritual because it can Meaning of •■■ term spiri- only be held by a person in holy orders ; it is the t^^*' corpora- object for which it is established which makes it a spiritual or lay foundation ; if a hospital be estab- lished for the relief of the poor, and if there be no cure of souls attached to it, it is a lay foundation.^ It seems that the Statute would not apply to benefices of a higher grade than those enumerated in it; as the general words of a Statute beginning with inferior persons do not extend to superior persons.^ ^ Attorney-General N.Ewelme Case, 2 Co. Litt. 46 b; Low- Hospital, 17 Beav. 383. ther v. Lord Radnor, 8 East, ^ Ibid. 115; Casher v. Holmes, 2 B. ^ ArcJibishop of Canterbury's & Ad. 592. 262 BANKRUPTCY. not proveable. CHAPTER XXX. BANKRUPTCY. DeMs barred Debts barred by any Statute of Limitation are not proveable in bankruptcy ; they can be objected to by the debtor or any creditors, and may be ex- punged/ and dividends received thereon by a cre- ditor have been ordered to be refunded.^ The pur- pose of a commission of bankruptcy is described by Lord Eldon as being to work out the payment of those creditors who could by legal action or equit- able suit have compelled payment.^ It is the duty of assignees or trustees in bank- ruptcy, to set up the bar of any Statute of Limita- tion. There is in this respect no analogy between their position and that of an executor ; and it is their duty to pay with perfect fairness the debts owing by the bankrupt. They are, in fact, trustees for the general body of the creditors, and it is not only their right, but their bounden duty to rely on the Statute.* ' Ex parte Dewdney, 15 parte Roffey, 2 Eose, 245. Ves. 479 ; Mavor v. Payne, 3 ' Ex parte Deiudney, uhi Bing. 285 ; Ex parte Kidd, 7 supra. Jur. N. S. 613. " Per Macan, J., In re Glen- ' 2 Rose, 59 (note a) ; Ex dinning, 9 Jr. Ch. Eep. 284. BANKRUPTCY. 263 There is now no doubt (though the question was How far debt • IT •! Til 1 liarred may at one time considered uncertain) that a debt barred be ground for by the Statute Law of Limitations, cannot be a ground for a petition of adjudication if the debtor intended to he rtiade hanhrupt raise that defence} By the Bankruptcy Act, 1861, s. 97, indeed, it was expressly enacted that debts barred by any Statute of Limitation should not be reckoned as debts for the purpose of such a petition, but there appears to be no enactment to that effect in the present Bank- ruptcy Act.'^ It is, indeed, frequently laid down that such a debt cannot be ground for a petition,^ even though the debtor do not object; but it is sub- mitted that practically no one could dispute the validity of proceedings grounded on such a peti- tion,* and that though other creditors may, as we shall see, object to the proof of other debts barred by any Statute, yet that by analogy to the rule obtaining in the case of a creditor's administra- tion suit,^ they could not object to proof of the debt of the petitioning creditor. It has been held that debtors to the bankrupt's estate could not, in an action against them by assignees in bankruptcy, dispute the validity of the proceedings on the ' Ex parte Dewdney, 15 ^ 32 & 3.3 Vict., c. 71. Ves. 479 ; Mavor v. Payne, 3 ' See Kobson's Bankruptcy, Bing. 28-5; Quantock v. Eng- 2nd ed., p. 161. land, 2 Blaokst. 702 ; In re * Mavor v. Payne, 3 Bing. Glendinning, 9 Ir. Ch. Eep. 285. 284. ^ See supra, p. 237. 264. BANKRUPTCY. ground that the debt of the petitioning creditor was barred.^ It seems that the Law of Limitations ceases to operate after bankruptcy, and that time will not run as to debts of creditors not at the commencement of the bankruptcy already barred ; the effect of bank- ruptcy is to vest the property in the trustees as such for the benefit of the creditors, and debts are not afterwards affected by lapse of time.^ And it would seem that the date of the act of bankruptcy is the date to be considered for this purpose.^ Admissions by a bankrupt before bankruptcy may be binding on his property, but after bankruptcy he cannot so affect the estate.* Payment of dividends in bankruptcy will not re- vive a debt.^ It was said by Alderson, B., in Davies v. Edwards^ that such payments did not amount to an admission that the debt was due, coupled with a promise to pay the remainder. And in another case, Campbell, L.C., said, that the ' Mavor^. Payne, nhi supra; ^ Ex parte Dewdney, 15 Swayn v. Wallinger, 2 Str. Ves. 491. 746. ■* Smallcomh v. Bruges, Mc- - Ex parte Boss, 2 G. & J. Cleland, 45. 330 ; Sterndale v. Hankinson, * Brandram v. Wharton, 1 1 Sim. 393. See, however, B. & Aid. 463 ; Davies v. Ed- Gray V. Mendez, 1 Str. 556. wards, 7 Ex. 22 ; Ex parte A commission in a foreign Topjnng, 34 L. J. Banktcy. country will not stop the 44. Statute. Ex -parte Kidd, ubi ° Uhi supra, supra. BANKRUPTCY. 265 law could not infer a promise to pay a debt from admission of it, where there is a declaration by the debtor at the same time that he is unable to pay it in full.i The insertion of a debt in the schedule to a deed of inspectorship executed for the purpose of admi- nistering the estate of a creditor, although the schedule was verified by the debtor's affidavit, was held not to amount to a sufficient acknowledgment, so as to take the debt out of the Statute of Limita- tions, under a subsequent administration of the debtor's estate in bankruptcy. Neither was pay- ment by the inspectors of a dividend upon the debt held to be a sufficient part payment. The debtor's affidavit in such a case was characterised by Cran- worth, L.C., as amounting only to an admission that the debt was due modo et formd!^ A payment expressed to be on account of a com- position of five shillings in the pound, did not revive the remedy for the whole debt on the composition not being paid.^ Cestuis que trustent may prove against a bank- rupt's estate for trust-money which was knowingly in the bankrupt's possession, though otherwise the debt would have been barred.* ' But see Eichc v. Nohes, 1 ^ Ex parte Bateson, 1 M. D. Moo. & P. 358 ; Collis v. & D. 289. StacTc, 1 H. & Norm. 605. ■" Ex parte Gowers, 2 Deac. 2 Ex parte Topping, 13 W. 207. R. 1025. 266 CHARITIES. CHAPTER XXXI. CHAEITIES. Charities are Charities are within the Statute 3 & 4 Wm. 4, Statute. c. 27. Under previous Acts, when Courts of Equity were not eo nomine bound, and followed the statu- tory limitations, only by way of analogy, an excep- tion was allowed in favour of charities — an excep- tion which, though intended for the public benefit, was often in reality productive of hardship.^ Chari- ties are not expressly named in the 3 & 4 Wm. 4, c. 27, but it has now been decided that they are within its scope. They are, in fact, trusts, though in some respects trusts of a favoured nature, and as such are within sections 24 and 25 of the Act.^ The recipients of a charity are really mere cestuis que trustent, and a purchaser for value from their trustees, whether with or without notice of the trust, is safe at the expiration of the proper term, in the same manner as if he had purchased from ordi- nary trustees.' ' Attorney-General v. Mag- 2 Dru. & Wal. 67 ; Commis- dalen College, 6 H. L. 189. sioner of Ghwitahle Donations ^ Ibid. ; Attorney-General v. v. Wyhrants, 2 J. & Lat. 182. Davey, 4 D. G. & J. 521 ; In- ^ Attorney-General v. Mag- cwyorated Society v. Richards, dalen College, Ibid., p. 216. CHARITIES. 267 The recipients of the charity will of course still retain their remedy against the trustees.^ The Attorney-General, in appearing on behalf of The Attorney- a charity, is only part of the machinery by which the rights of others are sought to be enforced, and the real litigants are the rightful recipients of the charity. '^ The "poor" of a parish are a class of persons ^^^^ "poor." within the meaning of the 1st section of the Act.^ The decision of the House of Lords in the case of the Attorney- General v. Magdalen College^ which decided that a purchaser for value from the trustees of a charity could take advantage of the Statute, was held to govern a case where the property in question had not been aliened in fee, but had been leased for a term of 500 years, and the rent on which had been regularly paid.® ' Attorney-General v. 21ag- was admitted to be void or dalen College, 2 J. & Lat. 182. void&,ble under the Statute of ^ Ibid. 13 Elizabeth, cap. 10. In ^ Ibid. overruling the demurrer Sir * Ubi supra. George Jessel, M.R., said that * Attorney-General v. Davey, it "was a case of great hard- 4 D. G. & J. 136; /S'. C, 19 ship. He should have been Beav. 521. But see the recent very glad to decide in favour case on demurrer of Magdalen of the defendants, and he Hospital V. Knotts, reported in hoped that it was not wrong The Times of Dec. 12, 1876. to wish that another Court In this case the defendants might see its way to reversing held certain premises under a his decision. The defendants long lease granted so far back held the property from which as the year 1783, which lease it was sought to eject them 268 CHARITIES. A breach of trust by misapplying cliaritable funds is in strictness never barred,' but in cases ' Attorney-General t. Cor- poration of Exeter, Jacob, 448; 2 Euss. 45 ; Attorney-General V. Newhury, 3 M. & K. 647 ; Attorney-General v. Brewer's Co., 1 Mer. 498. under a 99 years' lease granted by the cbarity in 1783, ap- parently for valuable consider- ation and at a peppercorn rent. Whether the transac- tion was improvident or not he need ,not stop to consider at this distance of time. This was certain — that the pro- perty had been ever since held and enjoyed under that lease, which would not expire until 1882, and then the rever- sionary term of 50 years would come into existence. The plaintiff's case was that this lease was void under the Statute of Elizabeth. That it was void for this reason was clear ; and then the question was whether the Statute of Limitations — a most bene- ficial statute — was a shield to the defendants. He was sorry to be obliged to hold that it was not. In order to get the benefit of the Statute of Limitations the defendants must show adverse possession for a period of 20 years prior to the time when the right to bring an action of ejectment first accrued. When did that right first accrue? Ifatthetime when the lease was granted, then the plaintiffs were out of court ; but if not, then when did it first accrue? He was compelled to come to the con- clusion that the lease was not void under the Statute of Elizabeth, but voidable, and consequently that the right first accrued when the plain- tiffs elected to avoid it — in other words, when the writ of summons issued in the present action. If leases such as this were void ah initio, as the de- fendants' counsel had been forced to argue, then a bishop or a rector might grant a lease at a peppercorn rent to a tenant who, at the expira- tion of 20 years, would be able to hold the premises in fee-simple as against the Church for ever. The mere statement of such a proposi- tion was shocking to one's intellectual perceptions, when one considered for what ob- jects the Statute of Elizabeth CHARITIES. 269 where parties liave only followed the custom of their predecessors, then, if they behave well and do not resist, they may be saved as much as possible from a bygone account.^ Indeed, if the administra- tion of the funds, though mistaken, has been itmo- cent and unconnected with any corrupt purpose, the Court, while it directs for the future, refuses to visit with punishment what has been done in times past.^ was enacted. The only natural conclusion was that such leases were voidable, but not void. It had been decided by the Court of Exchequer — Pennington v. Cardale, 3 H & N. 666 — that such was the effect of the disabling and restraining Statutes of Eliza- beth. Besides, how could the man whose predecessor in title had taken a lease, turn round and say it was void ? In the common case of a proviso that in certain events a lease should be void, it had never been decided that the tenant could claim the benefit of the proviso, which was meant for the landlord only. His Lordship then overruled the demurrer accordingly. See aS'. C, Weekly Notes, 23 Dec, 1876. ' Attorney-General v. Prety- man, 4 Beav. 462. ^ Per Eldon, C, in Attorney- General V. Corporation of Exeter, uhi sxipra. 270 TORTS. CHAPTER XXXII. TOETS. In torts time In the case of torts arising quasi e contractu, the runs from date „ ,, n i i r of tort; btatute usually commences to run trom the date oi the tort, not from the occurrence of actual damage. And ignorance of the facts on the part of the plaintiff will make no exception to the rule, though he discover his injury too late to have a remedy. This will be the case, too, even where the defendant has betrayed the plaintiff into permitting the time to elapse in fruitless inquiries and negotiations.^ It is, however, said that there may be cases where the injured party may bring trespass or trover, or may waive both, and bring assumpsit for the proceeds of the property when it shall have been converted into money, and in the last case the tortfeasor cannot allege his own wrong so as to bring time back to the day of the tort.^ ^ East India Co. v. Paul, 1 must be an actual conversion : Moo. P. C. C. 85. See as to Jones v. Hoar, lb., 285. See directors of insolvent bank, Lamme v. Dorrell, 2 Ld. Eay- the American case of Hinsdale mond, 1216 ; HitchinY. Camp- V. Lamed, 16 Mass. B. 68. hell, 2 W. Bl. 827 ; Hamhly v. 2 Lamh v. Clarlc, 5 Pick. Trott, Cowp. 371. (Mass.) E. 193. But there TORTS. 271 An important distinction exists between actions and remedy . . f. - . . , , cannot be re- ansiDg irom torts and upon assumpsit, m that the vived by ac- right to the former cannot be revived by acknow- ^^^ ^"^ ledgment.^ Although, as has been seen, time commences "When time usually to run in a defendant's favour from the time ''^'"^ of his wrongdoing, and not from the time of the occurrence to the plaintiff of any consequential damage, yet it is necessary for the truth of this proposition that the wrongdoing should be one for which nominal damages might be immediately re- covered. Not every breach of duty creates an individual right of action. And a distinction some- thing similar to that which has been drawn by moralists between duties of perfect and imperfect obligation may be observed in duties arising from the law. In this way a breach of public duty will not inflict any direct immediate wrong on an indi- vidual ; and neither his right to a remedy, nor his liability to be precluded by time from its prosecu- tion, will commence till he has suffered some actual inconvenience. While it is otherwise, as has been noticed, where there is a private relation between the parties, where the wrongdoing of one at once creates a right of action in the other. In fact, when the injury, however slight, is complete at the time of the act, the statutory period then commences, but when the act is not legally injurious until certain ' Hiirst V. Farker, 1 B. & 6 Bar. & Cress. 603. Aid. 92 ; Tanner v. Smart, 6 272 TORTS. consequences occur, the time commences to run from the consequential damage.' And in a case where the plaintiff had been damaged by the cutting away of certain pillars of coal which sup- ported the surface, and which was ultimately injured in consequence, it was considered that time com- menced to run against the plaintiff on the occurrence of the damage, and not from the date of the removal of the pillars.^ In an^^action for maliciously opposing the dis- charge of an insolvent debtor, time was considered to run from the date of the opposition, and not from the cessation of imprisonment.^ In Nicklin v. Williams, Parke, B., referring to the above cases as to consequential damage, said, " It remains to consider some cases cited and much relied on showing that the limitation of actions under particular Statutes directed to^be brought ' See judgment of Story, ^ Bonomi v. Backhouse, 5 C.J., in the American case of Jur. N. S. 1345; 28 L. J. BanJc of Hartford Co. v. Water- Q. B. 378 ; 9 H. L. 503. man, 26 Conn. 324, which is This case was decided on ap- given verbatim in Angell, 6th peal by Lords Westbury, ed., 142, n. 3. See also lie- Brougham, Cran worth, Wens- berts Y. Head, 16 East, 215; leydale, and Chelmsford, with and Oillon v. Boddington, 1 the assistance of six of the Car. & P. 541 ; and see White- judges. house V. Fellowes, 10 C. B. ^ See Nicklin v. Williams, N. S. 765 ; and Bemjs v. 10 Ex. 259 ; Violett v. Symp- ShuckbuTffh, 4 Y. & C. 42. son, 8 El. & Bl. 344 ; 27 L. J. See also supra, on solicitor's Q. B. 138. negligence. TOKTS. 273 within a certain time ' from the fact committed,' dated from the period when consequential damage was occasioned, and therefore it was said that the damage was the cause of action. These Statutes mean no doubt the limitation to run from the act, that is the cause of action. But on examining these cases they do not appear to be for injuries to rights which this is, but solely for consequential damages, where the original act itself was no wrong and only became so by reason of those damages." 274 MISCELLANEOUS. costs, CHAPTER XXXIII. MISCELLANEOUS. Solicitor's As long as an action is going on a solicitor is bound to attend to it, and cannot sue for his costs, though he may in some cases require a reasonable advance on their account. Consequently, as a rule time will not commence to run against any items of a solicitor's bill until his retainer is concluded, either by the termination of the action or matter, or by notice from, or death of, his client.^ But continuous employment out of Court, as for instance, in endeavouring to raise money on behalf of a client, may not be a continuous employment within this principle.^ And it seems that the time when a solicitor can recover his fees is when a suit is terminated by a sentence given and then time begins to run, not- withstanding that some further charges incidental to the matter may be incurred afterwards.^ Where a lunatic died in June, 1853, and the 1 Whitehead v. Lord, 7 Ex. B. 744 ; 16 L. J. Q. B. 72. 691 ; Harris v. Osbourn, 2 C. ^ Per Lord Tenterden, in & M. 629 ; Martindale v. Falh- Rothery v. Mumiings, 1 B. & ner, 2 0. B. 706. Ad. 15. ' Fhilhps V. Broadley, 9 Q. MISCELLANEOUS. 275 solicitor in the lunacy obtained an order for taxation of his costs in the lunacy in February, 1854, under the 23 & 24 Vict., c. 127 (Attorneys and Solicitors Act), and the taxation was completed in February, 1855, on the solicitor presenting a petition for an order to charge the lunatic's estate under section 29 of the last-named Act, it was held by Knight- Bruce, L. J., that the right to recover accrued on the death of the lunatic, and by Turner, L.J., that it accrued on the order for taxation being obtained, and as more than six years had in either case elapsed since the accrual of the right to recover, it was held that the petitioner's claim was barred by the concluding provision of the 29th section.^ If a debtor, whose debt has become barred by Advertisement lapse of time, or if he is dead, his personal represen- tative advertise for creditors in the " Gazette " or other newspapers, it will, it seems, depend on the wording of the advertisement, whether it amounts to an acknowledgment so as to revive the debt or not. If the advertisement contains a promise to pay all persons on application who have debts owing to them by the advertiser, it will amount to a suffi- cient acknowledgment to exclude the Statute.^ But ' This provision is as fol- and expenses shall have ac- lows : — "Provided always, that crued." it shall not be lawful for the ^ Andrews v. Broim, Prec. Court or Judge to make any in Ch. 385 ; Jones v. Scott, 1 such order but within six R. & M. 255-70 ; Scott v. years next after the right to Jones, 4 CI. & Fin. 382. recover such costs, charges, T 2 276 MISCELLANEOUS. it seems that an advertisement (in the form usual, for instance, in advertising, under 22 & 23 Vict., c. 35), only requesting persons having claims against the debtor's estate to submit them for examination, will not suffice to exclude the operation of the Statute.^ Mesne profits. In equity as vpell as at law, in absence of any special circumstances to the contrary, a trespasser in possession of the estate of another must account for the mesne profits for the whole time he has been in possession, so far as the account is not barred by any express Statute. But such circum- stances are readily assumed ; and where the defen- dants have been in justifiable ignorance of plaintiff's title, the account will usually only be taken from the date of the filing of the bill.^ In an adverse suit in the nature of an ejectment bill, the account is directed only from the filing of the bill, but in a suit against a person in a fiduciary character the account is taken either from the original period, or if the Court thinks so fit, on account of the plain- tift's laches, for the six years only previous to the filing of the bill.^ But' this is so only in cases where there is, to quote the words of Turner, L.J., 1 Jones V. Scott, 1 E. & M. 375-83 ; Attorney-General v. 155. Corporation of Exeter, 2 Kuss. ^ Dormer v. Fortescue, 3 45 ; Clarke v. Yonge, 5 Beav. Atk. 124; Pettiward v. Pres- 523. coU, 7 Ves. 541 ; Bowes v. Hast ^ ' PerWood,Y.-G.,m Thomas London Waterworks, 3 Madd. v. Tlwmas, 2 K. & J. 79. MISCELLANEOUS. 27T " no fraud, no suppression, no infancy," ' and in cases of infancy, therefore, an account may be claimed from the original period. The 26th section of the Copyright Act (5 & 6 Copyright. Vict., c. 45) does not apply so as to prevent a suit for an injunction to restrain a piracy of copyright by sale of a book published more than twelve months before bill filed.^ There occurs occasionally, as we have from time Casus omissus. to time seen, a casus omissus in the existing Statutes. It is said that these accidental omissions can in no way be supphed by a Court of law, inas- much as to do so would be to make laws.^ The rule by which a father or relation in posses- infancy. sion of an infant's estate is treated as a guardian or bailiff for the infant, depends upon the more general rule, which requires that no possession shall be con- sidered as adverse which may possibly be consistent with the lawful title.* The time of the pendency of a suit in equity has Pendency of been directed not to be taken advantage of at law.^ When the guardian of an infant makes up the Ouardians' ° ^ balance. ' Hicks V. Sallitt, 3 D. G. * " Possession is never con- M. & G. 782-801. sidered adverse if it can be ^ Hogg V. Scott, L. K. 18 referred to a lawful title,'' /ler Eq. 444. V.-C. Wood, in Thomas v. ' Lane v. Bennett, 1 M. & Thomas, 2 Kay & J. 79. See W. 70. See 1 T. E. 72. And Doe d. Milner v. Brightiven, 10 see Alsop v. Bell, 24 Beav. East, 583. 451 ; and Humble v. Humble, * StU7~t v. Mellish, 2 Atk. 24 Beav. 535. 614; Anon., 1 Vern. 73, 74. 278 MISCELL ANEOUS. accounts of the infant's estate on the attainment of twenty-one years, and exhibits a balance due from himself, he ceases to be a trustee of the amount, and time runs in his favour from that date.^ Bank notes are not expected to be paid until given up by the holder, so that they are not affected by the laws of limitation.^ A power of sale is not within the mischief or spirit of the Acts.^ No title can be gained by the Statute against a public highway. " Once a highway always a high- way," is an established maxim, and the public can- not release their right.* Actions upon the case for words actionable in themselves must be brought within two years, but it seems where they are actionable only by reason of special damage, they may be brought within six years. ^ If a feme covert, having money for her separate use, lend to her husband, owing to the unity of per- son existing in law, the Statute will not begin to run till the husband's death." Where a cause of action, not existing previously, ^tXt^^ ^^^ ^^ given by a new Act, it has been held in America And Cf. Code Bank notes. Power of sale. Public high- way. Slander. lioan by wife to husband. Cause of action given by Statute. ' Green v. Johnson, 3 Gill & Johns. (U. S.) R. 387. ^ Hinsdale v. Lamed, 16 Mass. R. 68. ^ Mason V. Broadbent, 30 Beav. 296. * Dawes v. Hawkins, 8 C. B. N. S. 858. Civil., 2226. ' Blansh. 99. See Bonomi V. Bachhouse, 9 H. L. 503. ^ Towers v. Haghner, 3 Whart. (Penn.) E. 48. MISCELLANEOUS. 279 that time elapsed previously to the passing of the Act can form no bar.^ Where, under certain railway Acts certain moneys Railway de- deposited in the Court of Chancery were to be ap- ^''^'*^' pHed as assets of a railway company, the project of which was abandoned, the costs of obtaining the special Act were allowed to be paid out of the de- posit, though they had been incurred fourteen years previously.^ There had been in fact no assets of the company till the return of the deposit, and upon this, and the wording of the special Act, the decision of Malins, V.-C, principally turns. The subject is, however, one of considerable importance, as the principles on which the judgment is founded are of wide application ; and an extract from the judgment, from which the facts of the case suffi- ciently appear, is given accordingly : — " Now what was the situation of these gentlemen (the applicants) ? Up to the 14th of May, 1873, it is perfectly clear there was not an asset of the com- pany which could possibly pay them. If, therefore, the question depended entirely upon the Companies Clauses Act, it seems to me that the Statute of Limitations is excluded because there is, as I read the section, a continual obligation on the company out of their first assets to pay the expenses of obtain- ing the Act of Parhament. That obligation does not cease because they do not have assets for a con- ' LeasureY. MalioningTown- - In n Kensington Station ship, 8 Watts' (Penn.) R. 551. Act, L. R. 20 Eq. 197. 280 MISCELLANEOUS. siderable time. It happened in this case that they had no assets for fourteen years. Suppose they had had assets immediately after the expiration of six years, why is the debt to be barred? It is to be paid out of the first assets and the money is to be applied first in payment of these expenses. How can the Statute of Limitations run against parties who do not apply for payment when they know that there is nothing to pay them with ? I quite agree that in the case of a man owing a debt, the Statute of Limitations is not saved because he has no means of paying. Whether he can pay or not there the debt is incurred and the Statute begins to run. But in this case the Statute of Limitations has no appli- cation till the period arrives when there is something to pay with. They are to pay the expenses out of the first moneys they receive. They had the first money on the 14th of May, 1873 ; and then, and in my opinion not till then, the Statute of Limitations began to run. " That conclusion rests upon principle and also upon authority. I refer to Garden v. General Cemetery Company} Mr. Garden was the pro- moter of cemeteries generally, and particularly of the cemetery at Kensal Green. He incurred very considerable expenses in establishing that cemetery, or rather in obtaining the Act of Parliament for it. He brought an action against the Company after its incorporation for payment of those expenses and his ' 5 Bing. N. C. 253. MISCELLANEOUS. 281 costs. His case rested upon the 20th section of the Act which enacted ' That all the money to be raised by the company by virtue of this Act shall be laid out and applied, in the first place, in the payment of and discharging all costs and expenses incurred in applying for obtaining and passing this Act, and all other expenses preparatory or relating thereto, and the remainder of such money shall be applied in and towards purchasing lands, tenements, and heredita- ments,' and for other purposes. There, like the present case under the general Act, he had no right to be paid until there was money due to him. He was to be paid out of the first moneys. An objec- tion was taken to his action that he did not aver that there were moneys. If he was bound to bring his action within six years, why was he to make the averment V Chief Justice Tindal in giving judgment says : ^ — " It was next objected on the part of the defendants that the declaration does not state that the defendants had any money in their hands at the time the plaintiff demanded his debt, or at all events that they had sufficient in their hands to satisfy the demand of the plaintiff. And if this objection had been made the ground of a special demurrer to the declaration, it might perhaps have been held that the allegation was insufficient for that purpose. But the declaration does in fact allege that the com- pany, after the passing of the Act, under and by ' 5 Bing. N. C. 259. 282 MISCELLANEOUS. virtue of the Act, did receive divers sums of money out of which they might and ought to have paid and satisfied the plaintiff, and we think this amounts in substance to an averment . that the company had enough to satisfy the plaintiff's demand, and there- fore is sufficient upon a general demurrer." What is the fair result of those observations of the Lord Chief Justice 1 That if he brought his action at any time without being able to aver that they had money the action would fail. If, until he can aver that, he has no right to bring an action, then the Statute must run from the time when he is in a situation to maintain an action. If it is a condition precedent to bringing an action that a man must aver there are funds out of which he can be paid, then the time begins to run only when that state of thing exists which entitles him to maintain an action ; and that state of things does not exist until he can aver in his declaration that the defendants have money in their hands wherewith he can be paid. So far as it de- pends upon the general Act — The Company's Clauses Act — it was a condition precedent to the plaintiff being able to maintain an action, and if an action then a suit in this Court, that he should aver that the time had arrived when the defendants had assets in their hands ; and as soon as they have assets in their hands his right arises, and from that time only the Statute begins to run. Dignities. Dignities without emoluments attached, such as are peerages and titles of honour are not within any MISCELLANEOUS. 283 Statute of Limitation.^ But offices of dignity, which 0^=^^ °^ are accompanied with the right to fees and emolu- ments, such as is the office of Lord Chamberlain are within the Statute Law.^ The case of persons having privilege of Parha- ^"1?^^^^^°^ ment is the subject of special enactments ; except as to freedom from arrest they are much in the same position as other persons.^ "Where an action abated by the marriage of a -^i^atement. feme sole, a reasonable time was allowed afterwards for the plaintiff to commence a new action, though the statutory time expired in the interval ; and it is reasonable to suppose that a similar indulgence would be granted in cases of abatements from other causes.* The Court of Admiralty, though following the law, as did equity, is not bound by the Statute of James.* It has been held that suits in Spiritual Courts are Spiritual court. not within the Statute Law of Limitations, such for instance as a proceeding pro violantd manuum in- jcctione super clericum, inasmuch as the proceeding is one pro reformatione morum and not for damages,® but now all suits for property in Ecclesiastical • Blansh. 56. Bl. 283 ; 27 L. J. Q. B. 439. ^ Blansh. 52. * Ewer v. Jones, 6 Mod. 25. 3 See 12 & 13 Wm. 3, c. 3 ; See under Seamen's Wages. 45 Geo. 3, c. 124; Blansh. « Blansh. 211. Such suits 209. are also regulated in this re- ■* Blansh. 114; Curlewis v. spect. Mornington {Earl of), 7 El. & writ. 284 MISCELLANEOUS. Courts are regulated by the 43rd section of the Statute 3 & 4 Wm. 4, c. 27. The section is as follows :— "After the said thirty-first day of December one thousand eight hundred and thirty -three, no per- son claiming any tithes, legacy, or other property, for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in any Spiritual Court to recover the same, but within the period during which he might bring such action or suit at law or in equity." Renewal of Formerly, the Statute Law of Limitations might have been defeated for an indefinite time by con- tinually renewing a writ without service ; but now, under the Judicature Act, 1875, Order VIIL, a writ can only be renewed if reasonable efforts have been made to serve the defendants.^ The order is as follows : — "No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date ; but if any defendant therein named shall not have been served therewith the plaintiff may, before the expi- ration of the twelve months, apply to a judge or the district registrar for leave to renew the writ, and the judge or registrar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent summons be renewed for ^ Wilson's Judicature Acts, 174. MISCELLANEOUS. 285 six months from the date of such renewal, and so from time to time during the currency of the re- newed writ * * * and a writ of summons so renewed shall remain in force and be available to prevent the operation of any Statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons." In a recent case, where a plaintiff had issued a writ against the defendant in the Court of Common Pleas, on the 7th of January, 1875, but no notice had been given to the defendant, and on the 6th of July, 1875, within six months from the issuing of the writ an administration summons was issued to administer the estate of the defendant's testator in Chancery, the Court held that the commencement of proceedings by the writ in the Common Pleas only kept the debt alive as regarded that particular Court, and the administration summons was not a proper renewal of the writ so as to defeat the Law of Limitations.* The institution of proceedings which are presumed to have been unsuccessful will not suspend the operation of the Statute.^ Where a person is out of the jurisdiction, and the bill prayed process against him when he returned, the Statute was considered to have been suspended ' Fievet v. Manhy, W. N. ^ Barker v. Buttress, 7 Beav. 1876, p. 160. 134- 286 MISCELLANEOUS. Justices of the Peace. Constables. The colonies. as against him, though he had not been served nor appeared to the suit.^ Justices of the peace are protected, as to acts done in the execution of their duty after six months, by the 11 & 12 Vict., c. 44, s. 8. Constables are similarly protected by the same section. In both cases, a question may arise as to how far the acts complained of were done bond fide in execution of the defendant's duty.^ Colonial lands are not bound by English Statutes unless expressly named, or unless the colonial Legis- lature re-enacts the Statutes. Consequently it was held, in a very recent case, by Hall, V.-C, that annuities, which were given out of an estate in Jamaica, were recoverable after a period, when, in consequence of the Statute 3 & 4 Wm. 4, c. 27, they would not have been recoverable out of an estate situate in England, there being no correspond- ing Statute of Limitation applicable to Jamaica.^ ' Hele V. Lord Bexley ; Whitfield V. Bowyer ; Whit- field V. Knight, 20 Beav. 127. ^ Gosden v. JElphick, 4 Ex. 445 ; Haseldine v. Ch'ove, 3 G. & D. 210 ; Barnett v. Cox, 1 Q. B. 617 ; Masseyv. Johnson, 12 East, 67. ' Pitt V. Lord Dacre, L. E. 3 Ch. D. 295. APPENDIX OF STATUTES. (ARRANGED IN CHRONOLOGICAL ORDER.) 21 James 1, cap. 16, ss. 3, 4, 7. (Simple Contracts. ) 4 Anne, cap. 16, ss. 17, 18, and 19. (Seamen's Wages.) 9 Geo. 3, cap. 16. (The Crown.) 9 Geo. 4, cap. 14, ss. 1, 2, 3, 4, and 8. (Lord Tenterden's Act.) 3 & 4 Wm. 4, cap. 27. (Real Property.) 3 & 4 Wm. 4, cap. 42, ss. 3 to 7. (Specialties). 7 Wm. 4 & 1 Vict. cap. 28. (Mortgages.) 16 & 17 Vict. cap. 113, ss. 20 to 27. (C. L. P. Amendment Act, Ireland.) 19 & 20 Vict. cap. 97, ss. 9 to 16. (Mercantile Law Amendment Act.) 23 & 24 Vict. cap. 38, ». 13. (Intestate's Estate.) 23 & 24 Vict. cap. 53, ss. 1 and 2. (Dachy of Cornwall.) 24 & 25 Vict. cap. 62. (Crown and Duchy of Cornwall Amendment Act. ) 37 & 38 Vict. cap. 57. (E«al Property.) 38 & 39 Vict. cap. 77, Order VIII. s. 1. (Judicature Act, 1875.) 39 & 40 Vict. cap. 37 (Nullum Tempus (Ireland) Act, 1876). 21 JAMES 1, CAP. 16, SECTS. 3, 4, & 7. (SIMPLE CONTEACTS.) 3. And be it further enacted, That all actions of trespass, quare clausum fregit, all actions of trespass, detinue, action sur trover and replevin, for taking away of goods and cattle, all actions of account, and upon the case other than such accounts as concern the trade of merchandise between merchant and mer- chant, their factors, or servants, all actions of debt grounded upon any lending or contract without specialty, all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after the end of this present session of Parliament, shall be commenced and sued within the time and limitation hereafter expressed, and not after ; that is to say, the said actions upon the case (other than for 288 APPENDIX OF STATUTES. 21 Jas. 1, slander) and the said actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action for trespass, quare clausum fregit, within three years next after the end of this present session of Parliament, or within six years next after the cause of such actions or suit, and not after, and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within one year next after the end of this present session of Parliament, or within four years next after the cause of such actions or suit^ and not after, and the said action upon the case for words within one year after the end of this present session of Parliament, or within two years next after the words spoken, and not after. 4. And nevertheless, be it enacted, That if in any the said actions or suits judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill, or if any the said actions shall be brought by original, and the defendant therein be outlawed, and shall after reverse the outlawry, that in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed, or such judgment given against the plaintiff, or outlawry reversed, and not after. 7. Provided nevertheless, and be it further enacted. That if any person or persons that is, or shall be entitled to any such action of trespass, detinue, action sur trover, replevin, actions of account, actions of debt, actions of trespass, for assault, menace, battery, wounding, or imprisonment, actions upon the case for words be, or shall be, at the time of any such cause of action, given or accrued, fallen or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be at liberty to bring the same actions so as they take the same within such times as are before limited after their coming to, or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, as other persons having no such impediment should have done. APPENDIX OF STATUTES. 289 4 ANNE, CAP. 16 (SEAMEN'S WAGES), SECTS. 17, 18, & 19. 17. And be it further enacted, by the authority aforesaid, That all suits and actions in the Court of Admiralty for seamen's wages, which shall become due after the said first day of Trinity term, shall be commenced and sued within six years next after the cause of such suits or actions shall accrue, and not afterwards. 18. Provided nevertheless, and be it enacted, That if any person or persons who is, or shall be, entitled to any such suit or action for seamen's wages be, or shall be, at the time of any such cause of suit of action, accrued, fallen, or come within the age of twenty-one years, feme covert, non compos ■mentis, imprisoned, or beyond the seas, that then such person or persons shall be set at liberty to bring the same actions, so as they take the same within six years next after their coming to, or being of full age, discovert, of sane memory, at largo, and returned from beyond the seas. 19. And be it further enacted, by the authority aforesaid, That if any person or persons against whom there is or shall be any such cause of suit or action for seamen's wages, or against whom there shall be any cause of action of trespass, detinue, actions for trover or replevin, for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract without specialty, of debt for arrearages of rent, or assault, menace, battery, wounding, and imprisonment, or any of them, be, or shall be, at the time of any such cause of suit or action given or accrued, fallen, or come beyond the seas, that then such person or persons, who is, or shall be, entitled to any such suit or action, shall be at liberty to bring the said actions against such person and persons after their return from beyond the seas, so as they take the same after their return from beyond the seas within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one-and-twentieth year of the reign of King James the First. 290 APPENDIX OF STATUTES. 9 GEO. 3, Cap. 16.' (THE CKOWN.) By the first section of this Act the Crown is disabled to sue or implead any person for any manors, lands, tenements, rents, tithes, or hereditaments where the right had not, or shall not first accrue and grow within sixty years next before commenc- ing suit, unless the §ame shall have been duly in charge, or stood insv/per of record, or been answered to the Crown. The second section provides for oases where the rent and profits of such hereditaments shall be duly in charge to the Crown. The third and forth sections provide for and exempt from the opera- tion of the Act reversions in the Crown and grantees of the Crown. The fifth and sixth sections provide for payment of certain services to the Crown and contain a general reservation of the rights of others than the Crown. The seventh section secures to the Crown such fee farm, or other rents as had been paid within a limited time. The eighth and ninth sections con- tain temporary provisions. The tenth section declares what shall and shall not be deemed a putting in charge, standing insuper or taking or answering by or to the Crown within the meaning of the first section. 9 GEO. 4, CAP. 14 (LOED TENTEEDEN'S ACT) SECTS. 1,2, 3, 4 & 8.2 1. Whereas by an Act passed in England in the twenty-first year of the reign of King James the First, it was among other things enacted that all actions of account and upon the case other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent should be commenced within three years after the then present session of ' Extended to the Duchy of Cornwall by 23 & 24 Vict., cap. 53, infra, p. 316; and see 24 & 25 Vict., cap. 62, infra, p. 316. 2 See 19 & 20 Vict., cap. 97, s. 13, infra, p. 315. APPENDIX OF STATUTES. 291 Parliament, or within six years next after the cause of such 9 Geo. 4, action or suit and not after : And whereas, a similar enactment is contained in an Act passed in Ireland in the tenth year of the reign of King Charles the First : And whereas, various questions have arisen in actions founded on simple contract as to the proof and effect of acknowledgments and promises offered in evidence for the purpose of taking cases out of the operation of the said enactments ; and it is expedient to prevent such questions and to make provision for giving effect to the said enactments and to the intention thereof : Be it. therefore en- acted, by the King's most excellent Majesty, by and with the advice and consent of the lords Spiritual and Temporal and Commons in the present Parliament assembled, and by the authority of the same, that in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or pro- mise 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 said enactments or either of them, or to deprive any party of the benefit thereof unless such acknowledgment or promise shall be made, or contained by or in some writing to be signed by the party chargeable thereby ; and that where there shall be two or more joint contractors or executors, or administrators of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of the said enactments or either of them, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them : Provided always, that nothing herein contained shall alter or take away or lessen the affect of any payment of any principal or interest made by any person whatsoever : Provided also, that in actions to be commenced against two or more such joint contractors or executors or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited Acts or this Act, as to one or more of such joint con- tractors or executors or administrators shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise judgment may be given and costs allowed for the plaintiff as to V 2 292 APPENDIX OF STATUTES. 9 Geo. 4, such defendant or defendants against whom he shall recover, cap. 14. g^jj^ fpj. .j-jjg other defendant or defendants against the plaintiff. 2. And be it further enacted, that if any defendant or de- fendants, in any action on any simple contract shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued and issue be joined on such plea, and it shall appear at the trial that the action could not by reason of the said recited Acts or this Act or either of them, be maintained against the other person or persons named in such plea or any of them, the issue joined on such plea shall be found against the party pleading the same. 3. And be it further enacted, that no indorsement or memo- randum of any payment written or made, after the time ap- pointed for this Act to take effect, upon any promissory note, bill of exchange or other writing, by or on the behalf of the party to whom such payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the opera- tion of either of the said Statutes. 4. And be it further enacted, that the said recited Acts and this Act shall be deemed and taken to apply to the case of any debt or simple contract alleged by way of set off on the part of any defendant either by plea, notice, or otherwise. 8. And be it further enacted, that no memorandum or other writing made necessary by this Act shall be deemed to be an agreement within the meaning of any Statute relating 'to the duties of stamps. 3 & 4 WM. 4, CAP. 27.' (REAL PROPERTY.) 1. Be it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or different meaning, shall in this Act, except where the nature of the provision or the context of the Act, shall exclude such construction, be interpreted as follows ; (that is to say,) the word "land" shall extend to manors, messuages, ' See 37 & 38 Vict., cap. 57, infra. ' APPENDIX OF STATUTES. 293 and all other corporeal hereditaments whatsoever, and also to 3 & 4 Wm. 4, tithes (other than tithes belonging to a spiritual or eleemosy- °^^' nary corporation sole), and also to any share, estate or interest in them, or any of them, whether the same shall be a freehold or chattel interest, and whether freehold or copyhold, or held according to any other tenure; and the word "rent" shall extend to all heriots, and to all services and suits for which a 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 eleemosy- nary corporation sole), and the person through whom another person is said to claim shall mean any person by, through, or under, or by the act of whom the person so claiming became entitled to the estate or interest, claimed as heir, issue in tail, tenant by the courtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat ; and the word " person " shall extend to a body politic, corporate or col- legiate, and to a class of creditors or other persons, as well as an individual ; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing ; and every word importing the masculiue gender only shall extend and be applied to a female as well as a male. 2.' After the thirty-first day of December, 1833, no person shall make an entry or distress, or bring an action to recover any land or rent 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 to any person through 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 making or bringing the same. ' See the New Act, infra, p. 321. 294 APPENDIX OF STATUTES. 3 & 4 Wra. 4, 3. In the construction of this Act, the right to make an entry or distress, or bring an action to recover any land or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned; (that is to say,) when the person claiming such land or rent, or some person through whom he claims shall, in respect of the estate or interest claimed, have been in possession, or in receipt of the profits of such land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such right shall be deemed to have first ac- crued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent wore or was so received ; and when the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such posses- sion or receipt, then such right shall be deemed to have first accrued at the time of such death ; and when the person claiming such land or rent shall claim in respect of an estate or interest in possession granted, appointed, or otherwise assured by any instrument (other than a will) to him or some person through whom he claims, by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, or in the receipt of the rent, and no person entitled under such instrument shall have been in such pos- session or receipt, then saoh right shall be deemed to have first accrued at the time at which the person claiming as afore- said, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument ; and when the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the pos- session or receipt of the profits of such laud, or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in posses- APPENDIX OP STATUTES. 295 sion ; and when the person claiming such land or rent, or the 3 & 4 'Wm. 4. person through whom he claims shall have become entitled by ^^' reason of any forfeiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred, or such condition was broken. 4. Provided always, that when any right to make an entry or distress, or to bring an action to recover any land or rent by reason of any forfeiture or breach of condition, shall have first accrued in respect of any estate or interest in reversion or remainder, and the land or rent shall not have been recovered by virtue of such right, the right to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued in respect of such estate or inte- rest at the time when the same shall have become an estate or interest in possession, as if no such forfeiture or breach of condition had happened. 5 '. Provided also, that a right to make an entry or distress, or to bring an action to recover any land or rent, shall be deemed to have first accrued in respect of an estate or interest in reversion at the time at which the same shall have become an estate or interest in possession by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof, or such rent shall have been re- ceived, notwithstanding the person claiming such land, or some person through whom he claims, shall at any time previously to the creation of the estate or estates which shall have deter- mined have been in possession or receipt of the profits of such land, or in receipt of such rent. 6. For the purposes of this Act an administrator claiming the estate or interest of the deceased person of whose chattels he shall be appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of adminis- tration. 7. When any person shall be in possession, or in receipt of the profits of any land, or in receipt of any rent as tenant at will, the right of the person entitled subject thereto, or of the ' See the New Act, infra, p. 321 . 296 APPENDIX OF STATUTES. 3 & 4 Wm. i, person through wTiom he claims, to make an entry or distress, cap. n. Qj. bring an action to recover such land or rent, shall be deemed to have first aooriied, either at the determination of such tenancy, or at the expiration of one year next after the com- mencement of such tenancy, at which time such tenancy shall be deemed to have determined : Provided always, that no mort- gagor or cestui que trust shall be deemed to be a tenant at will within the meaning of this clause to his mortgagee or trustee. 8. When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent as tenant from year to year, or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent, payable in respect of such tenancy, shall have been received (which shall last happen). 9. When any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent (charge) by virtue of a lease in writing by which a rent amounting to the yearly sum of twenty shillings or upwards shall be reserved, and the rent reserved by such lease shall have been received by some person wrongfully claiming to be entitled to such land or rent (charge) in reversion immediately expectant on the deter- mination of such lease, and no payment in respect of the rent received by such lease shall afterwards have been made to the person rightfully entitled thereto, the right of the person entitled to such land or rent (charge) subject to such lease, or of the person through whom he claims to make an entry or distress, or to bring an action after the determination of such lease shall be deemed to have first accrued, at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid, and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled. 10. No person shall be deemed to have been in possession APPENDIX OF STATUTES. 297 of any laud within the meaning of this Act merely by reason of 3 & 4 Wm. i, having made an entry thereon. '^^^' 11. No continual or other claim upon or near any land shall preserve any right of making an entry or distress, or of bringing an action. 12. When anyone or more of several persons entitled by any land or rent as coparceners, joint tenants, or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land, or of the profits thereof or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons, or any of them. 13. When a younger brother, or other relation of the person entitled as heir to the possession or receipt of the profits of any land, or to the receipt of any rent, shall enter into possession or receipt thereof, such possession or receipt shall not be deemed to be the possession or receipt of or by the person entitled as heir. 14. Provided always, and be it further enacted, That when any acknowledgment of the title of the person entitled to any land or rent shall have been given to him or his agent in writing, signed by the person in possession or in receipt of the profits of such land, or in receipt of such rent, then such possession or receipt of or by the person by whom such acknowledgment shall have been given shall be deemed, according to the meaning of this Act, to have been the pos- session or receipt of, or by the person to whom, or to whose agent, such acknowledgment shall have been given at the time of giving the same, and the right of such last-mentioned person or any person claiming through him to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued at and not before the time at which such acknowledgment, or the last of such acknowledgments, if more than one, was given. 15. Provided also, and be it further enacted. That when no 298 APPENDIX OP STATUTES. 3 & 4 Wm, i, such acknowledgment as aforesaid shall have been given before^the passing of this Act, and the possession or receipt of the profits of the land or the receipt of the rent, shall not at the time of the passing of this Act have been adverse to the right or title of the person claiming to be entitled thereto, then such person or the person claiming through him may, not- withstanding the period of twenty years hereinbefore limited shall have expired, make an entry or distress, or bring an action to recover such land or interest at any time within five years next after the passing of this Act. 16.' Provided always, and be it further enacted, That if at the time at which the right of any person to make an entry or distress, or bring an action to recover any land or rent shall have first accrued as aforesaid, such person shall have been under any of the disabilities hereinafter mentioned ; (that is to say,) infancy, coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, then such person or the person claiming through him may, notwithstanding the period of twenty years hereinbefore limited shall have expired, make an entry or distress, or bring an action to recover such land or rent at any time within ten years next after the time at which the person to whom such right shall have first accrued as aforesaid shall have ceased to be under any such disability, or shall have died (which shall have first happened). 17'- Provided nevertheless, and be it further enacted, that no entry, distress, or action shall be mxde or brought by any per- son who at the time at which his right to make an entry or distress or to bring an action to recover any land or rent shall have first accrued, shall be under any of the disabilities herein- before mentioned, or by any person claiming through him, but within forty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole term of such forty years, or although the term of ten years from the time at which he shall have ceased to be under any such disability or have died, shall not have expired. 18. Provided always, and be it further enacted, that when ^ See the New Act, infra, p. 321. APPENDIX OF STATUTES. 299 any person shall be under any of the disabilities hereinbefore 8 & ^^™- *• mentioned at the time at which his right to make an entry, or distress, or to bring an action to recover any land or rent shall have first accrued, and shall depart this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring an action to recover such land or rent be- yond the said period of twenty' years next after the right of such person to make an entry or distress, or to bring an action to recover such land or rent shall have first accrued, or the said period of ten^ years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person. 19. No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Aldemey, or Sark, nor any islands adjacent to any of them (being part of the dominions of his Majesty) shall be deemed to be beyond seas within the meaning of this Act. 20. When the right of any person to make an entry or dis- tress, or bring an action to recover any land or rent to which he may have been entitled for an estate or interest in posses- sion, shall have been barred by the determination of the period hereinbefore limited which shall be applicable in such case, and such person shall at any time during the said period have been entitled to any other estate, interest, right, or possibility in re- version, remainder, or otherwise, in or to the same land or rent, no entry, distress, or action shall be made or brought by such person or any person claiming through him to recover such land or rent in respect of such other estate, interest, right, or possibility, unless in the meantime such land or rent shall have been recovered by some person entitled to an estate, interest, or right which shall have been limited or taken effect after or in defeasance of such estate or interest in possession. 21. When the right of a tenant in tail of any land or rent to make an entry or distress, or to bring an action to recover the same, shall have been barred by reason of the same not having been made or brought within the period hereinbefore ' Reduced to tweWe years by the New Act, infra, p. 321. 2 Keduced to six years by the New Act, infra, Ibid. ^00 APPENDIX OF STATUTES. ^ *■ ^ J^™' *' limited whicli shall be applicable in such case, no such entry, distress or action shall be made or brought by any person claiming any estate, interest, or right which such tenant in tail might lawfully have barred. 22. When a tenant in tail of any land or rent entitled to re- reoover the same shall have died before the expiration of the period hereinbefore limited which shall be applicable in such case for making an entry, or distress, or bringing an action to recover such land or rent, no person claiming any estate, interest, or right, which such tenant in tail might lawfully have barred, shall make an entry or distress or bring an action to recover such land or rent but within the period during which, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action. 23 '. When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar an estate or estates to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof or at any time afterwards be in posess- sion, or receipt of the profits of such land or in the receipt of such rent, and the same person or any other person whatsoever (other than such person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail,) shall continue or be in such pos- session or receipt for the period of twenty years next after the commencement of the time at which such assurance if it had been executed by such tenant in tail, or the person who would have been entitled to his estate tail, if such assurance had not been executed, would without the consent of any other person have operated to bar such estate or estates as aforesaid, then at the expiration of such period of twenty years such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance' of such estate tail. 24. After the said 31st day of December, 1833, no person claiming any land or rent in equity shall bring any suit to re- recover the same, but within the period during which by virtue ' See the New Act, infra, p. 321 . APPENDIX OF STATUTES. 301 of the provisions hereinbefore'contained he might have made sua. s & i Wm. 4, entry, or distress, or brought an action to recover the same °^P- ^''• respectively if he had been entitled at law to such estate, interest, or right in or to the same as he shall claim therein in equity. 25. Provided always, and be it further enacted, that when any land or rent shall be vested in a trustee upon any express tmst, the right of the cestui que trust, or any person claiming through him to bring a suit against the trustee, or any person claiming through him to recover such land or rent, shall be deemed to have first accrued according to the meaning of this Act at and not before the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser and any person claiming through him. 26. In every case of a concealed fraud the right of any person to bring a suit in equity for the recovery of any land or rent of which he or any person through whom he claims may have been deprived by such fraud shall be deemed to have first accrued at, and not before, the time at which such fraud shall or with reasonable diligence might have been first known or discovered, provided that nothing in this clause contained shall enable any owner of lands or rents to have a suit in equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents on account of fraud against any bond fide purchaser for valuable considera- tion who has not assisted in the commission of such fraud, and who at the time he made the purchase did not know and had no reason to believe that any such fraud had been committed. 27. Provided always, and be it further enacted, that nothing in this Act contained shall be deemed to interfere with any rule or jurisdiction of Courts of Equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of this Act. 28 '. When a mortgagee shall have obtained the possession ' See the New Act, p. 321. 302 APPENDIX OF STATUTES. 3 & 4^111. 4, or receipt of the profits of any land, or the receipt of any '^^' ' rent comprised in his mortgage, the mortgagor or any person claiming through him shall not bring a suit to redeem the mortgage, but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mort- gagor, or of his right of redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person in writing signed by the mortgagee or the person claiming through him ; and in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment or the last of such acknowledgments, if more than one was given, and when there shall be more than one mortgage, or more than one person claiming through the mortgagor or mortgagors, such acknow- ledgment, if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons ; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money, or land, or rent, by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or interests to take effect after or in defeas- ance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors, a right to redeem the mortgage as against the person or persons entitled to any undivided or divided part of the money, or land, or rent ; and where such of the mortgagees, or persons afore- said as shall have given such acknowledgment shall be entitled to a divided part of the land or rent comprised in the mortgage or some estate or interest therein, and not to any ascertained part of the mortgage money to mortgagor or mortgagors, shall be entitled to redeem the same divided part of the land or rent on payment with interest of the part of the mortgage money, which shall bear the same proportion to the whole of the mort- APPENDIX OP STATUTES. 303 gage money as tlie value of such divided part of the land or 3 & 4 Wm. 4, rent shall bear to the value of the whole of the land or rent <=^P- '^'^■ comprised in the mortgage. 29. Provided always, and be it further enacted, that it shall be lawful for any archbishop, bishop, dean, prebendary, parson, vicar, master of hospital, or other spiritual or eleemosynary corporation sole, to make an entry or distress, or to bring an action or suit to recover any land or rent within such period as hereinafter is mentioned, next after the time at which the right of such corporation sole, or of his predecessor, to make such entry or distress, or bring such action or suit, shall first have accrued ; (that is to say,) the period during which two persons in succession shall have held the office or benefice in respect whereof such land or rent shall be claimed, and six years after a third person shall have been appointed thereto, if the time of such two incumbencies, and such term of six years taken together, shall amount to the full period of sixty years, and if such times taken together shall not amount to the full period of sixty years, then during such further number of years in addition to such six years as will, with the time of the holding of such two persons and such six years, make up the full period of sixty years ; and after the said 31st day of Decem- ber, 1833, no such entry, distress, action, or suit shall be made or brought at any time beyond the determination of such period. 30. After the said 31st day of December, 1833, no person shall bring any quare impedit, or other action, or any suit to enforce a right to present to or bestow any church, vicarage, or other ecclesiastical benefice, as patron thereof, after the expiration of such period as hereinafter is mentioned ; (that is to say,) the period during which three clerks in succession shall have held the same, all of whom shall have obtained possession thereof adversely to the right of presentation or gift of such person, or of some person through whom he claims, if the time of such incumbencies taken together shall amount to the full period of sixty years, and if the' times of such incum- bencies shall not together amount to the full period of sixty years, then after the expiration of such further time as with 304 APPENDIX OF STATUTES. 3 & 4 Wm. 4, the times of such incumbencies will make up the full period of cap. 27. sixty years. 31. Provided always, and be it further enacted, that when on the avoidance after a clerk shall have obtained possession of an ecclesiastical benefice adversely to the right of presenta- tion or gift of the patron thereof, a clerk shall be presented or collated thereto by his Majesty, or the ordinary, by reason of a lapse, such last-mentioned clerk shall be deemed to have ob- tained possession adversely to the right of presentation or gift of such patron as aforesaid ; but when a clerk shall have been presented by his Majesty upon the avoidance of a benefice in consequence of the incumbent thereof having been made a bishop, the incumbency of such clerk shall, for the purposes of this Act, be deemed a continuation of the incumbency of the clerk so made bishop. 32. In the construction of this Act, every person claiming a right to present to or bestow any ecclesiastical benefice, as patron thereof by virtue of any estate, interest, or right, which the owner of an estate tail in the advowson might have barred, shall be deemed to be a person claiming through the person entitled to such estate tail, and the right to bring any quare impedit, action, or suit, shall be limited accordingly. 33. Provided always, and be it further enacted, that after the said 31st day of December, 1833, no person shall bring any quare impedit, or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice as the patron thereof, after the expiration of one hundred years from the time at which a clerk shall have obtained possession of such benefice adversely to the right of presentation or gift of such person, or of some person through whom he claims, or of some person entitled to some preceding estate or interest, or undivided share or alternate right of presentation or gift held or derived under the" same title, unless a clerk shall subse- quently have obtained possession of such benefice on the pre- sentation or gift of the person so claiming, or of some person through whom he claims, or of some other person entitled in respect of an estate, share, or right held or derived under the same title. APPENDIX OF STATUTES. 305 34. At the determination of the period limited by this Act 3 & 4 Wm. i, to any person for making an entry or distress, or bringing any °^P' writ of quare impedit, or other action or suit, the right and title of such person to the land, rent, or advowson, for the recovery whereof such entry, distress, action, or suit respec- tively might have been made or brought within such period shall be extinguished. 35. The receipt of the rent payable by any tenant from year to year, or other lessee shall, as against such lessee or any person claiming under him (but subject to the lease) be deemed to be the receipt of the profits of the land for the purposes of this Act. 36. No writ of right patent, writ of right, quia domimis re- niisit curiam, writ of right in capite, writ of right in London, writ of right close, writ of right de rationahili parte, writ of right of advowson, writ of right upon disclaimer, writ de ra- tionabilus divisis, writ of right of ward, wi-it de consuetudinibus et servitiis, writ of cessavit, writ of escheat, writ of quo jure, writ of secta ad molendinum, writ de essendo quietum de theolonia, writ of ne injuste vexes, writ of mesne, writ of quod permittat, writ oiformedon indescender in remainder or in reverter, writ of assize of novel disseisin, nuisance, darrein, presentment, juris utrum, or mart d'ancestor, writ of entry sur disseisin in the quibus, in the per, and cui, or in the post writ of entry sur intrusion, writ of entry sur alienation dum fuit, non compos mentis, dum fuit infra cetatem, dxim fuit in prisona, ad communem legem, in casu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante divortium, or sur cui ante divortium, writ of enti-y «m?* abatement, writ of eniij quare ejedt infra terminum, or ad terminum qui proeteriit, or causa matrimonii prcelocuti, writ of aiel, besaiel, tresaile, cosinage, or nuper ohiit, writ of waste, writ of partition, writ of disceit, writ of quod ei deforceat, writ of covenant real, writ of warrantia chartce,virito{curiaclaudenda,or-wntperquceservitia, and no other action, real or mixed (except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, or an ejectment), and no plaint in the nature of any such writ or action (except a plaint for freebench or dower) shall be brought after the 31st day of December, 1834. 306 APPENDIX OF STATUTES. 3 & I Wm. 4, 37_ Provided always, and be it further enacted, that when on the said 31st day of December, 1834, any person who shall not have a right of entry to any land, shall be entitled to maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought at any time before the 1st day of June, 1835, in case the same might if this Act had not been made, notwithstanding the period of twenty years hereinbefore limited shall have expired. 38. Provided also, and be it further enacted, that when on the said 1st day of June, 1835, any person whose right of entry to any land shall have been taken away by any descent, cast, discontinuance or warranty, might maintain any such writ or action as aforesaid in respect of such land, such writ or action may be brought after the said 1st day of June, 1835, but only within the period during which, by virtue of the provisions of this Act, an entry might have been made upon the same land by the person bringing such writ or action if his right of entry had not been so taken away. 39. No descent, cast, discontinuance or warranty which may happen or be made after the 31st day of December, 1833, shall toll or defeat any right of entry or action for the recovery of land. 40.' After the said 31st day of December, 1833, no action, or suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage judgment or lien or other- wise charged upon or payable out of any land or rent at law or in equity, or any legacy " but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money or some interest thereon shall have been paid or some acknow- ledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable or his agent to the person entitled thereto or his agent, and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledg- ' See the new Act, infra, p. 321. 2 See infra, 23 & 24 Vict., cap. 38, s. 13, p. 313. APPENDIX OF STATUTES. 307 ment, or the last of such payments or acknowledgments if more 3 & 4 Wm. 4, than one was given. °*P' 41. After the said. 31st day of December, 1833, no arrears of dower nor any damages on account of such arrears shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit. 42. After the said 31st day of December, 1833, no arrears of rent or of interest in respect of any sum of money^ charged upon or payable out of any land or rent, or in respect of any legacy or any damages in respect of such arrears of rent or interest shall be recovered by any distress, action or suit, but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto or his agent, signed by the person by whom the same was payable or his agent ; provided, nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incum- brancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. 43. After the said 31st day of December, 1833, no person claiming any tithes, legacy or other property, for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceedings in any spiritual court to recover the same, but within the period during which he might bring such action or suit at law or in equity. 44. Provided always, and be it further enacted, that this Act shall not extend to Scotland, and ahall not, so far as it relates to any right to permit to or bestow any church vicarage or other ecclesiastical benefice, extend to Ireland. X 2 308 APPENDIX OF STATUTES. 3 & 4 Wm. 4, 3 & 4 WM. 4, CAP. 42 (SPECIALTIES), SECTS. 3-7. cap. 42. 3. And be it further enacted, that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages or sums of money given to the party grieved by any Statute, now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of Parliament, shall be commenced and sued ■within the time and limitation hereinafter expressed and not after ; (that is to say,) the said actions of debt for rent upon an indenture of demise or covenant, or debt upon any bond or other specialty, actions of debt or scire facias upon recognisance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after ; the said actions by the party grieved one year after the end of this present session, or within two years after the cause of such actions or suits but not after ; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after ; provided that nothing herein contained shall extend to any action given by any Statute where the time for bringing such action is or shall be by any Statute specially limited. 4. And be it further enacted, That if any person or persons that is or are or shall be entitled to any such action or suit or to such scire facias, is or are or shall be at the time of any such cause of action accrued within the age of twenty-one jeaxs, feme covert, non compos mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same actions, so as they commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should according to the provisions of this APPENDIX OF STATUTES. 309 Act have done ; and that if any person or persons against whom 3 & 4 'Wm. 4, there shall be any such cause of action, is or are or shall be at '^^'^- *^- the time such cause of action accrued beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas. 5. Provided always, that if any acknowledgment shall have been made either by writing, signed by the party liable by virtue of such indenture, specialty, or recognisance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid and so acknowledged to be due, within twenty years after such acknowledgment by writing, or part payment, or part satisfac- tion as aforesaid, or in case the person or persons entitled to such action shall, at the time of such acknowledgment, be under such disability as aforesaid, or the party making such acknow- ledgment, be at the time of making the same beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond the seas, as the case may be ; and the plaintiff or plaintiffs in any such action, or any indenture, specialty or recognisance, may by way of replication state such acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this Statute. 6. And nevertheless be it enacted. That if in any of the said actions judgment be given for the plaintiff and the same be reversed by error, or a verdict pass for the plaintiff and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill, or if in any of the said actions the defendant shall be out- lawed and shall after reverse the outlawry, then in all such cases the party, plaintiff, his executors or administrators, as the case shall require, may commence a new action or suit from time to time within a year after such judgment reversed or such judgment given against the plaintiff or outlawry reversed and not after. 310 APPENDIX OF STATUTES. 3 & 4 Wm. 4, 7. And be it further enacted, That no part of the United cap 42 Kingdom of Great Britain and Ireland, nor the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any Islands adjacent to any of them, being part of the dominions of His Majesty, shall be deemed to be beyond the seas within the meaning of this Act, or of the Act passed in the 21st year of the reign of King James the First, entituled an Act for limitation of actions and for avoiding of suits in law. 7 WM. 4 & 1 VICT., CAP. 28 (MORTGAGES). By this Act' it is enacted as follows: — That it shall and may be lawful for any person entitled to, or claiming under any mortgage of land within the definition contained in the first section of the said Act (3 & 4 Wm. 4, c. 27), to make an entry, or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last pay- ment of any part of principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry, or bring such action or suit in equity shall have first accrued, anything in the said Act notwithstanding. 16 & 17 VICT., CAP. 113 (C. L. P. AMENDMENT ACT, IRELAND), SECTS. 20-27. 20. All actions for rent upon an indenture of demise, all actions upon a bond or other specialty, or upon any judgment, statute-right, statute-merchant, or recognisance shall be com- menced and sued within twenty years after the cause of such ac- tions or suits, or the recovery of siich judgments, but not after ; all actions grounded upon any lending or contract, expressed or implied, without specialty, or upon any award where the submis- sion is not by specialty or for any money levied by fieri facias ; all actions of account, or for not accounting, other than for such ' See new Act, infra, y. 321. APPENDIX OF STATUTES. 311 accounts as concern the trade of merchandise between merchant 16 & 17 Vict., and merchant, their factors or servants ; all actions for direct °^P' ■^■^"^■ injuries to real or personal property ; actions for the taking away or conversion of property, goods, and chattels ; actions for libel, malicious prosecution and arrest, seduction, criminal conversation ; and actions for all other causes which would heretofore have been brought in the form of action called trespass on the case, except as hereinafter excepted, shall be commenced and sued within six years after the cause of such actions, but not after ; and all actions for assault, menace, battery, wounding, and imprisonment, shall be commenced and sued within four years after the cause of such actions, but not after ; and all actions for words and for penalties, damages, or sums of money given to the party grieved by any Statute now, or hereafter to be in force, shall be com- menced and sued within two years after the words spoken or the cause of such action or suit, but" not after ; and with respect to every subject matter of a personal action not herein specifically provided for, being the subject matter of a per- sonal action, such actions in respect thereof shall be brought within the same period of limitation now applicable thereto, notwithstanding that such cause of action may be described or expressed in such Statutes by reference to any particular form of action : Provided that nothing in this Act contained shall alter the period of limitation of any action given by any Statute where the time for bringing such action is, or shall be, by any Statute specially limited. 21. If in any of the said actions judgment be given for the plaintiff, and the same be reversed by error, or a verdict pass, or upon judgment by default damages be assessed for the plaintiff, and upon matter alleged in arrest of judgment the judgment be given against the plaintiff, that he take nothing by his plaint, in all such cases the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from time to time, within the period hereinbefore provided for in such action, or within a year after such judgment reversed, or judgment given against the plaintiff, and not after. 312 APPENDIX OF STATUTES. 16 & 17 Vict., 22. If any person that is, or shall be entitled to any such cap. 113. cause of action, is, or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, a married woman, of unsound mind, or beyond the seas, then such person shall be at liberty to bring the same action so as to commence the same within such time after the cessation of such disability, or his return from beyond seas, as other persons having no such impediment should, according to the provisions of this Act, have done ; and if any person or persons against whom there shall be any such cause of action is, or shall be, at the time such cause of action accrued, beyond seas, then the person entitled to any such cause of action shall be at liberty to bring the same against such person, within such time as is before limited after the return of such person from beyond 23. If any acknowledgment shall have been, or shall be made, either by writing signed by the party liable by virtue of any indenture, specialty, judgment, statute-staple, or statute- merchant, or recognisance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall be lawful for the person entitled to bring his action for the money remaining unpaid and so acknow- ledged to be due, within twenty years after such acknowledg- ment by writing, or part payment, or part satisfaction as aforesaid, or in case the person entitled shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be at the time of making the same beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond seas, as the case may be ; and the plaintiff in any such action on any indenture, specialty, judgment, statute-staple, or statute-merchant, or recognisance, may rely on such acknowledgment and that such action was brought within the time aforesaid in answer to a plea of the Statute. 24. In actions grounded upon any simple contract no acknow- ledgment or promise shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of APPENDIX OF STATUTES. 313 the operation of the provisions of this Act in relation to the 16 & 17 Vict., limitation of actions, or to deprive any party of the benefit "^P" ^^^' thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and where there shall be two or more joint contractors or executors of any contractor, no such joint contractor, executor, or administrator shall lose the benefit of this Act, so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed by any other or others of them : Provided always, that nothing herein contained shall alter or take away the effect of any pay- ment of any principal or interest made by any person whomso- ever. 25. No endorsement or memorandum of any payment written or made upon any promissory note, bill of exchange, or other writing by or on behalf of the party to whom such payment shall be made shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the provisions of this Act in relation to the limitation of actions. 26. This Act shall be deemed and taken to apply to the case of any debt alleged by way of set off on the part of any defendant. 27. No memorandum or other writing made necessary by this Act shall be deemed to be an agreement within the mean- ing of any Statute relating to the duties on stamps. MEECANTILE LAW AMENDMENT ACT (19 & 20 VICT., CAP. 97), SECTS. 9-16. 9. All actions of account, or for not accounting, and suits for such account as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits, or when such cause has already arisen, then within six years of the passing of this Act ; and no claim in re- spect of a matter which arose more than six years before the commencement of such action or suit shall be enforceable by 314 APPENDIX OF STATUTES. 19 & 20 Vict., action or suit, by reason only of some other matter of claim com- cap. a7. prised in the same account having arisen within six years next before the commencement of such action or suit. 10. No person or persons who shall be entitled to any action or suit with respect to which the period of limitation within which the same shall be brought is fixed by the act of the twenty- first year of the reign of King James the First, chapter sixteen, section three, or by the Act of the fourth year of the reign of Queen Anne, chapter sixteen, section seventeen, or by the Act of the fifty-third year of the reign of King George the Third, chapter one huijdred aud twenty-seven, section five, or by the Acts of third and fourth years of the reign of King William the Fourth, chapter twenty-seven, sections forty, forty-one, and forty-two, and chapter forty-two, section three, or by the Act of the sixteenth and seventeenth years of the reign of her pre- sent Majesty, chapter one hundred and thirteen, section twenty, shall be entitled to any time within which to commence and sue such action or suit beyond the period so fixed for the same by the enactments aforesaid by reason only of such person or some one or more of such persons being at the time of such cause of action or suit accrued beyond the seas, or in the cases in which by virtue of any of the aforesaid enactments imprison- ment is now a disability by reason of such person or soDie one or more of such persons being imprisoned at the time of such cause of action or suit accrued. 11. Where such cause of action or suit, with respect to which the period of limitation is fixed by the enactments aforesaid or any of them, lies against two or more joint debtors, the person or persons v/ho shall be entitled to the same shall not be entitled to any time within which to commence and sue any such action or suit against any one or more of such joint debtors who shall not be beyond the seas at the time such cause of action or suit accrued, by reason only that some other one or more of such joint debtors was or were at the time such cause of action accrued beyond the seas, and such person or persons so entitled as aforesaid shall not be barred from commencing and suing any action or suit against the joint debtor or "oint debtors who was or were beyond the APPENDIX OF STATUTES, 315 seas at the time the cause of action or suit accrued, after his or 19 & 20 Viot., their return from beyond seas, by reason only that judgment ■'^^^' was already recovered against any one or more of such joint debtors who was not or were not beyond seas at the time aforesaid. 12. 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 to any of them, being part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the Act of the fourth and fifth years of the reign of Queen Aune, chapter sixteen, or of this Act. 13. In reference to the provisions of the Acts of the ninth year of the reign of King George the Fourth, chapter fourteen, sections one and eight and the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, sections twenty-four and twenty-seven, an acknowledg- ment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorised to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself. 14. In reference to the provisions of the Acts of the 21st year of the reign of King James the First, chapter sixteen, section three, and of the Act of the third and fourth years of the reign of King William the Fourth, chapter forty-two, section three, and of the Act of the sixteenth and seventeenth years of the reign of her present Majesty, chapter one hundred and thirteen, section twenty, when there shall be two or more con- tractors or co-debtors, whether bound or liable jointly only, or jointly and severally, or executors, or administrators of any contractor, no such co-contractor or co-debtor, executor or ad- ministrator, shall lose the benefit of the said enactments or any of them, so as to be chargeable in respect or by reason only of payment of any principal interest or other money by any other or others of such co-contractors or co-debtors, executors, or administrators. 15. In citing this Act, it shall be sufficient to use the expres- sion, "The Mercantile Law Amendment Act, 1856." 16. Nothing in this Act shall extend to Scotland. 316 APPENDIX OF STATUTES. 24 & 25 Vict., 23 & 24 YICT., CAP. 38 (INTESTATE'S ESTATE), cap. 62. SECT. 13. 13. This section, after reciting the 3 & 4 Wm. 4, o. 27, s. 40, enacts that after the thirty-first day of December, 1860, no suit or other proceeding shall be brought to recover the per- sonal estate of any person dying intestate, but within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for, or release of the same, unless in the meantime some part of such estate or share, or some interest in respect thereof shall have been accounted for or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent ; and in such case no such action or suit shall be brought but within twenty years after such accounting, payment, or acknowledgment, or the last of such accountings, payments, or acknowledgments, if more than one was made or given. 23 & 24 VICT., CAP. 53 (DUCHY OF CORNWALL ACT), SECTS. 1 & 2. By section 1 of this Act all the provisions of the Act 9 Geo. 3, c. 16, as to limitation of actions and suits are extended to the Duke of Cornwall, subject to the provisions of certain previous Acts affecting the duchy. 24 & 25 VICT., CAP. 62 (THE CROWN AND DUCHY OF CORNWALL AMENDMENT ACT).' By section 1 of, this Act the Crown is not to sue after by reason of the lands having been in charge or stood insuper of record. 1 See 39 & 40 Vict., cap. 37, infra, p. 323. APPENDIX OF STATUTES. 317 By section 2 a similar provision is made as to the rights of 24 & 25 Vict., the Crown in respect of the Duchy of Cornwall. '^^' By the 3rd section provision is made as 'to the effect of answering of rents to the Crown. The 4:th section contains a reservation of reversionary in- terests in the Crown and Duke of Cornwall. 37 & 38 VICT., CAP. 57 (KEAL PROPERTY LIMITATION ACT, 1874). An Act for the further Limitation of Actions and Suits re- lating to Real Property. Whereas it is expedient further, to limit the times within which actions or suits may be brought for the recovery of land or rent, and of charges thereon : Be it enacted, by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons in this present Parliament assembled, and by the authority of the same, as follows : — 1. After the commencement of this Act no person shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress or to bring such action or suit, shall have first accrued to some person through whom he claims ; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same. 2. A right to make an entry or distress, or to bring an action or suit to recover any land or rent, shall be deemed to have first accrued in respect of an estate or interest in rever- sion or remainder, or other future estate or interest at the time at which the same shall have become an estate or interest in pos- session, by the determination of ary estate or estates in respect of which such land shall have been held or the profits thereof, or such rent shall have been received, notwithstanding the 318 APPENDIX OF STATUTES. 37 & 38 Vict., person claiming such land or rent, or some person througli whom he claims, shall at any time previously to the creation of the estate or estates which shall have determined, have been in the possession or receipt of the profits of such land, or in receipt of such rent. But if the person last entitled to any particular estate on which any future estate or interest was expectant shall not have been in the possession or receipt of the profits of such land, or in receipt of such rent at the time when his interest determined, no such entry or distress shall be made, and no such action or suit shall be brought by any person becoming entitled in possession to a future estate or interest, but within twelve years next after the time when the right to make an entry or distress, or to bring an action or suit for the recovery of such land or rent, shall have first accrued to the person whose interest shall have so determined, or within six years next after the time when the estate of the person becoming entitled in possession shall have become vested in possession, whichever of those two periods shall be the longer ; and if the right of any such person to make such entry or distress, or to bring any such action or suit^ shall have been barred under this Act, no person afterwards claiming to be entitled to the same land or rent, in respect of any sub- sequent estate or interest under any deed, will, or settlement, executed or taking eifect after the time when a right to make an entry or distress, or to bring an action or suit for the recovery of such land or rent, shall have first accrued to the owner of the particular estate whose interest shall have so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit to recover such land or rent. 3. If at the time at which the right of any person to make an entry or distress, or to bring an action or suit to recover any land or rent, shall have first accrued as aforesaid, such person shall have been under any of the disabilities herein- after mentioned ; that is to say, infancy, coverture, idiotcy, lunacy, or unsoundness of mind, then such person, or the person claiming through him, may, notwithstanding the period of twelve years or six years (as the case may be) hereinbefore limited shall have expired, make an entry or distress, or bring APPENDIX OF STATUTES. 319 an action or suit to recover such land or rent at any time 37 & 38 Vict. , ■within six years next after the time at which the person to °*P' ■whom such right shall have first accrued shall have ceased to be under any such disablity, or shall have died (whichever of those two events shall have first happened). 4. The time within which any such entry may be made, or any such action or suit may be brought as aforesaid, shall not, in any case, after the commencement of this Act, be extended or enlarged by reason of the absence beyond seas during all or any part of that time, of the person having the right to make such entry, or to bring such action or suit, or of any person through whom he claims. 5. No entry, distress, action or suit, shall be made or brought by any person who, at the time at which his right to make any entry or distress, or to bring an action or suit to recover any land or rent, shall have first accrued, shall be under any of the disabilities hereinbefore mentioned, or by any person claim- ing through him, but within thirty years next after the time at which such right shall have first accrued, although the person under disability at such time may have remained under one or more of such disabilities during the whole of such thirty years, or although the term of six years from the time at which he shall have ceased to be under any such disability, or have died shall not have expired. 6. When a tenant in tail of any land or rent shall have made an assurance thereof which shall not operate to bar the estate or estates, to take effect after or in defeasance of his estate tail, and any person shall by virtue of such assurance at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in receipt of such rent, and the same person, or any other person whosoever (other than some person entitled to such possession or receipt in respect of an estate, which shall have taken eflect after or in defeasance of the estate tail) shall continue or be in such possession or receipt for the period of twelve years next after the commencement of the time at which such assurance if it had then been executed by such tenant in tail, or the person who would have been entitled to his estate tail, if such assur- 320 APPENDIX OF STATUTES. 37 & 38 Vict., ance had not been executed, would, without the consent of any- other person, have operated to bar such estate or estates as aforesaid, then at the expiration of such period of twelve years, such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right, to take effect after or in defeasance of such estate tail. 7. When a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, shall have been given to the mortgagor or some person claim- ing his estate, or to the agent of such mortgagor, or person signed by the mortgagee, or the person claiming through him; and in such case no such action or suit shall be brought but within twelve years next after the time at which such acknowledg- ment, or the last of such acknowledgments, if more than one was given ; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such acknowledgment, if given to any of such mortgagors, or persons, or his or their agent, shall be as effec- tual as if the same had been given to all such mortgagors or persons ; but where there shall be more than one mortgagee, or more than one person claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment signed by one or more of such mortgagees or persons, shall be effectual only as against the party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage-money, or land, or rent, by, from, or under him or them, and any person or persons entitled to any estate or estates, interest or inte- rests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided part of the money, or land, or rent ; and where such APPENDIX OF STATUTES. 321 of the mortgagees or persons aforesaid as shall have given such 87 & 38 Vict., acknowledgment, shall be entitled to a divided part of the land °^^' or rent comprised in the mortgage, or some estate or interest therein, and not to any ascertained part of the mortgage- money, the mortgagor or mortgagors shall be entitled to re- deem the same divided part of the land or rent, on payment, with interest, of the part of the mortgage-money, which shall bear the same proportion to the whole of the mortgage-money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. 8. No action, or suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage, judg- ment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto, shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent ; and in such case no such action, or suit, or pro- ceeding shall be brought but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was given. 9. From and after the commencement of this Act, all the provisions of the Act passed in the session of the third and fourth years of the reign of his late Majesty King William the Fourth, chapter twenty-seven, except those contained in the several sections thereof next hereinafter mentioned, shall re- main in full force, and shall be construed together with this Act, Bnd shall take effect as if the provisions hereinbefore con- tained were substituted in such Act for the provisions con- tained in the sections thereof numbered two, five, sixteen, seventeen, twenty-three, and twenty-eight, and forty respec- tively (which several sections from and after the commence- ment of this Act shall be repealed) and as if the term of six 322 APPENDIX OF STATUTES. 37 & 38 Vict., years had been mentioned instead of the term of ten years in the section of the said Act numbered eighteen, and the period of twelve years had been mentioned in the said section eighteen instead of the period of twenty years ; and the provisions of the Act passed in the session of the seventh year of the reign of his late Majesty King WiUiam the Fourth, and the first year of the reign of her present Majesty, chapter twenty-eight, shall re- main in full force, and be construed together with this Act, as if the period of twelve years had been therein mentioned instead of the period of twenty years. 10.^ After the commencement of this Act, no action, suit or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent at law or in equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any trust. 11. This Act maybe cited as the "ileal Property Limita- tion Act, 1874." 12. This Act shall commence and come into operation on the first day of January, one thousand eight hundred and seventy-nine. 38 & 39 VICT., CAP. 77 (THE SUPEEME COURT OF JUDICATURE ACT, 1875), ORDER VIII., SECT. 1. 1. No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date, but if any defendant therein shall not have been served therewith the plaintiff may, before the expi- ration of the twelve months, apply to a judge, or the district registrar, for leave to renew the writ ; and the judge or regis- trar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the 1 This section is intended to set at rest the douhtful question as to charges on land. See sv^ra, p. 189. APPENDIX OF STATUTES. 323 original or concurrent writ of summons be renewed for six 38 & 39 Yict., months from the date of such renewal, and so from time to °^P' '^^■ time during the currency of the renewed writ. And the writ shall, in such case, be renewed by being marked with a seal bearing the date of the day, month and year of such renewal ; such seal to be provided and kept for that purpose at the proper of&ce, and to be impressed upon the writ by the proper officer upon delivery to him by the plaintiff, or his solicitor, of a Memorandum in Form No. 5 in Appendix (A), Part 1 ; and a writ of summons so renewed shall remain in force and be available to prevent the operation of any Statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons. 39 & 40 VICT., CAP. 37 (NULLUM TEMPUS (IRELAND) ACT, 1876). Whereas by an Act passed in the twenty-fourth and twenty- fifth years of her Majesty, certain provisions were made for the better quieting possessions and titles against the Crown in England, and it is expedient to extend these provisions to Ireland, in order that the Crown shall have no greater right over the estates of its subjects in Ireland than what it enjoys over the estates of its subjects in England : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same as follows : 1. The Queen's Majesty, her heirs and successors, shall not at any time hereafter, sue, impeach, question, or implead any person or persons for or in anywise concerning any manors, lands, tenements, rents, tithes, or hereditaments whatsoever (other than liberties or franchises), which such person or per- sons, or his or their, or any of their ancestors or predecessors, or those from, by, or under whom they do or shall claim, have, or shall have held, or enjoyed, or taken the rents, revenues, y 2 324 APPENDIX OF STATUTES. ^^ ^S^ ^^"^-t issues, or profits thereof, by tlie space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit, or proceed- ings as shall at any time or tinies hereafter be filed, issued, or commenced for recovering the same, or in respect thereof, by reason only that the same manors, lands, tenements, rents, tithes, or hereditaments, or the rents, revenues, issues, or profits thereof, have, or shall have been in charge to her Majesty, or her predecessors, or successors within the said sixty years, but that such having been in charge shall be as against such person and persons, and all claiming by, from, and under them, or any of them, of no force or effect. 2. The Queen's Majesty, her predecessors, and successors, shall not be held, deemed, or taken for the purpose of any suit, bill, plaint, information, commission, or other proceeding, to have been answered, the rents, revenues, issues, or profits of any lands, manors, tenements, rents, tithes, or hereditaments, which shall have been held or enjoyed, or of which the rents, revenues, issues, or profits shall have been taken by any other person or persons by the space of sixty years next before the filing, issuing or commencing of any such action, suit, bill, plaint, information, commission, or other proceeding for re- covering the same, or in respect thereof, by reason only of the same lands, manors, tenements, rents, tithes, or hereditaments having been part or parcel of any honour, or manor, or other hereditaments, of which the rents, revenues, issues, or profits shall have been answered to her Majesty, her predecessors or successors, or some other person under whom her Majesty, her predecessors, or successors hath or lawfully claimeth, or shall hereafter have or lawfully claim as aforesaid, or of any honour, manor, or other hereditaments which shall have been duly in charge to her Majesty, her predecessors, or successors, as aforesaid. 3. In the construction of the Act passed in the forty-eighth year of the reign of his late Majesty King George the Third, chapter forty-seven, and of this Act, the right or title of the Queen's Majesty, her heirs, or successors, to any manors, lands, tenements, rents, tithes, or hereditaments which are now, or APPENDIX OF STATUTES. 325 shall at any time hereafter, be subject to or comprised in any 39 & 40 Vict., demise or lease for any term or terms of years, or for any life ° ^" or lives granted by or on behalf of her Majesty, or any of her Royal predecessors, or successors, shall not be deemed to have first accrued or grown until the expiration or determination of such demise or lease, as against any person or persons whose possession, holding, or enjoyment of such manors, lands, tene- ments, rents, tithes, or hereditaments, or whose receipt of the rents, issues, or profits thereof shall have commenced during the term of such demise or lease, or who shall claim from, by, or under any person or persons whose possession, holding, or enjoyment of such manors, lands, tenements, rents, tithes, or heredita- ments, or whose receipt of the rents, issues, or profits thereof shall have so commenced as aforesaid. 4. Nothing contained in this Act shall extend to any action, bill, plaint, information, commission, or other suit or proceed- ing instituted or commenced before the passing of this Act, and now pending. 5. This Act may be cited as " The Nullum Tempus (Ireland) Act, 1876," and shall be read and construed with the Act for quieting possessions and confirming defective titles in Ireland, passed in the forty-eighth year of his Majesty King George the Third. INDEX. ABATEMENT, 238, 283. ABILITY TO PAY, 21. ABSENCE BEYOND SEAS, {see also Disabilities), 82, 83, 86, 87, 131, 132. saving as to plaintiff abolished by Mercantile Law Amendment Act, 86. in case of defendant, 86. now abolished as to land, 132. meaning of "beyond seas," 132, 133. ABSENCE, of legal personal representative, 229. of possession, mere, 98. ABSTEACTS, length of, 4, 122. ACCEPTANCES, 29. ACCOMMODATION BILLS, 28. ACCOUNT, items in, 200. ACCOUNTS, mutual, 200—203. early difficulty as to, 200. not barred if any items within six years, 201. what is a mutual account, 202. account stated, 202. account not revived if it has ceased six years, 203. merchant's accounts, exception as to abolished, 203. partnership accounts, 204. ACCEUAL of right to land, 97. ACKNOWLEDGMENTS in general, 35. requisites of, under different Statutes, 36. by or to agents, 37. 328 INDEX. ACKNOWLEDGMENTS— co7ifo-HMed land and rent, 36. charges and legacies, 36. under Lord Tenterden's Act, 37. general requisites of an acknowledgment, 37. in legacies, 216. in mortgages, 167 — 172. by mortgagor, 172. by mortgagee, 167. by part payment. See Part Payment. in real property law, 118. must be in writing, 118. not by agent, 118, 119. to agent, 119. by an inscription, 119. no particular form required, 119. need not amount to promise, 119. sufficiency of terms usually question for Court, 120. in simple contracts, 39. old theory, 39, 40. true theory of, 39, 40, 41, -43. in torts, 40. conditional acknowledgments, 44, 46, 47. must amount to admission of debt, 44. be unqualified, 44, 46, 48, 49. or condition fulfilled, 44, 47. not only for special purpose, 48. coupled with refusal to pay, 50. with objection on merits, 50. amount of debt need not be stated, 52. after action commenced, 57. sufiioiency is question for Court, 58. unless depending on extrinsic evidence, 58. in writing under Lord Tenterden's Act, 57. ■what may be supplied by parol, 58. identity of debt, 58. by agent, 59, 60. by wife, 60. to third person, 61 — 63. by co-contractors, 78 — 80. by executor, binds estate, 228. must be made in representative character, 228. ■when executor is also devisee of realty, 228. in specialties (see oZso Specialties), 184. ACQUIESCENCE, 122, 245. doctrine of, in equity, 245. INDEX. 329 ACQUIESCENCE— co«