UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY /iA C h 9*^ THE TIME LIMIT ON ACTIONS THE TIME LIMIT OK ACTIONS BEING A TREATISE OX THE STATUTE OF LIMITATIONS AND THE EQUITABLE DOCTRINE OF LACHES JOHN M. LIGHTWOOD, M.A. OF LINCOLN'S INN, BARRISTER-AT-LAW ; FORMERLY FELLOW OF TRINITY HALL, CAMBRIDGE AUTHOR OF "POSSESSION OF LAND" LONDON : BUTTERWOKTH & CO., 11 & 12, Bell Yard, Temple Bar. Xaw publisbcrs. IIJOI). j Vc i~ 31 L J O B. 61 ... ... ••• ••• ••• ••• ••• ••• ^^^ Anste'e v. Nelms, 1 H. & N. 225 : 26 L. J. Ex. 5 130 Antrim, etc., Co. /■. Stewart, [1904] 2 I. R. 357 81 Archbold c. Scully, 9 H. L. C. 360 ; 5 L. T. 160 ; 7 Jur. N. S. 1169 22, 103, lOo, 106, 107, 175, 254, 303 yvrchclall r. Anderson. 25 L. R. Ir. 433 Archer r. Leonard, 15 Ir. Cb. R. 267 Armstrong I'. Milburn, 54 L. T. 723 Arnison v. Smith, 40 C. D. 567 ; 58 L. J. Ch. 335 ; 60 L. T. 206 ; 37 W. R. 405 „^, Arnold I'. Hamel. 9 Ex. 404 ; 23 L. J. Ex. 137 ^93 Artizans' Land, etc.. Corporation, Re, [1904] 1 Ch. 796 ; 73 L. J. Ch. 581 ; 52 W.R. 33J • Ashby V. James, 11 M. &. W. 542; 12 L. J. Ex. 295 Asher t. Wliitlock, L. R. 1 Q. B. 1 ; 35 L. J. Q. B. 17 ; N S 9-^5 122,124,125 Ashlin V. Lee, 44 L. J. Ch. 376; 32 L. T. 348 ; 23 W. R. 458 357 Ashling V. Boon, [1891] 1 Ch. 568; 60 L. J. Ch. 306; 64 L. T. 193; 39 W. R. 298 ^ 345 Ashton r. Stock, 6 C. D. 719 ; 25 "W. R. 862 19,35,44 Ashwell'sWilLi?^ Johns. 112 168,177,262,356 Astbury r. Astbury, [1898] 2 Ch. Ill ; 67 L. J. Ch. 471 ; 78 L. T. 494 ; 46 \V. R. 536 337 Astley V. Earl of Essex, 18 Eq. 290; 43 L. J. Ch. 817; 30 L. T. 485; 22 ■ W. R. 620 57,61 Astlev,etc., Coal Co. and Tyldesley Coal Co., Ee, 68 L. J. Q. B. 252; 80 L. T. 116 300 Atkins V. Tredgold, 2 B. & C. 13 ; 1 L. J. O. S. K. B. 228 ... 353, 382, 383 Atkinson, iie. Proctor r. Atkinson, [1908] 2 Ch. 307 371 V. Bradford Building Society, 25 Q. B. D. 377 ; 59 L. J. Q. B. 360 ; 62 L. T. 857 ; 38 W. R. 630 ...' 205,217,238 AttbilU-. Woods, [1903] 2 L R. 305 417 Attorney-General I'. Bristol (Mayor of), 2 J ac. & \V. 294 75 (•. Coventry (Mayor of), 2 Vern. 397 75 . r. D'Arcy, Hayes, 85 142 f. Davey, 4DeG. & J. 136; 19 Beav. 521 70,75 y. Davis, 18 W.R. 1132 70 y. Eardley, 8 Price. 39 145,150 y. Flint, 4 Hare. 147 69 i;. Hall, 11 Price, 760 240 tj. Hallett, 1 Ex. 211 142 r. Hotham, T. & R. 209 141 f. Hungerford, 2 CI. & F. 357 75 _ ,-. Magdalen College, 18 Beav. 223 143 See Magdalen College r. Att.-Gen. 1-. Margate Pier Co., [1900] 1 Ch. 749; 69 L. J. Ch. 331 ; 82 L. T. 448 ; 48 ^V. R. 518 ; 64 J. P. 405 391 ■■ V. Maxwell, 8 Price, 76, n 144 • «. Mitchell, Hayes. 55 142 r. Parsons, 2 M. &. AV. 23 142 y. Payne, 27 Beav. 168 70,75 r. Persse, 2 Dr. & War. 67 75 — w. St. Aubyn, Whitw. 167 142 Stephens, 6 D. M. & G. Ill ; 25 L. J. Ch. 888; 4 W. R. 191 ; 2 Jur. N. S. 51 103 r Tomline, 15 C. D. 1.50 ; 43 L. T. 486 95, 108 Ward, Hayes, 555 ... ... 142 Attorney-General for British Honduras r. Bristowe, 6 App. Cas. 143 ; 50 L. J. P. C. 15; 44L. T. 1 141 TABLE OF CASES. XVll Attorney-Geueral for New South Wales v. Love, [1898] A. C. G79 ; 47 W. R. 81 144 Ault y. Goodrich, 4 Russ. 430 35;> Austin r; Llewellyn, 9 Ex. 27G ; 2:! L. J. Ex. 11 62 B. Backhouse i'. Bonomi, 9 H. L. C. 503 ; 34 L. J. Q. B. 181 : 4 L. T. 754 ; 9 W. R. 769 ; 7 Jur. N. S. 809 205.236,399 Bagot V. Bagot, 32 Beav. 509; 33 L. J. Ch. IIG ; 9 L. T. 217; 12 W. R. 35; 9 Jut. X. S. 1022 6G BaQdon v. Walton, 1 Ex. 617 ; 17 L. J. Ex. 357 375 Baile v. Baile, 13 Eq. 497 ; 41 L. J. Ch. 300 ; 26 L. T. 283 ; 20 W. R. 534 ... 249 Bailee r. Browne, 10 Ir. Eq. R. 180 208 Bailey r. Owen, 9 W. R. 128 311 I'. Warden, 4 M. & S. 400 5,201,400 Bailie I'. Irwin, [1897] 2 L R. 614 369 Baines r. Lumley, 16 W. R. 674 50,103 Baker, Ee. Collins i: Rhodes, 20 C. D. 230 ; 51 L. J. Ch. 315 ; 45 L. T. G58 ; 30W.R. 858 255 Nichols V. Baker. 44 C. D. 262 ; 59 L. J. Ch. 661 ; 62 L. T. 817 ; 38 W. R. 417 1 v. Billericay Union. 2 H. & C. 642; 33 L. J. M. C. 40; 9 L. T. 486; 13 W. R. 11 ; 9 Jur. N. S. 1201 233 V. Read. 18 Beav. 398 ; (App.) 3 W. R. 118 264 r. Weltou, 14 Sim. 426; 9 Jur. 98 331 Balfe r. Lord, 2 Dr. & War. 480 90 Ballard, ii'e, Lo veil r. Forester, W. N. (1890), p. G4 246,315 V. Marsden, 14 C. D. 374 ; 49 L. J. Ch. 614 ; 42 L. T. 763 ; 28 W. R. 914 211 Bamfield v. Tupper, 7 Ex. 27 ; 21 L. J. Ex. 6 375 Bamford ». Bamford, 5 Hare, 203 175 Banner v. Berridge, 18 C. D. 254 ; 50 L. J. Ch. 7; 44 L. T. G80; 29 W. R. 844 274,278,347 Barber r. Houston, 18 L. R. Ir. 475 301 • i\ Shore, 1 Jebb. & Sym. 610 166 Barclay v. Messenger, 43 L. J. Ch. 449 ; 30 L. J. Ch. 350 ; 22 W. R. 522 ... 270 I'. Owen, GO L. T. 220 363,366 Barcroft r. Murphy, [1896] 1 I. R. 590 161 Barker, Ee. Buxton v. Campbell, [1892] 2 Ch. 491 ; 62 L. J. Ch. 76 ; 66 L. T. 848 173 Barnes v. Addy, 9 Ch. 244 ; 43 L. J. Ch. 513 ; 28 L. T. 398 ; 22 W. R. 505 274, 275 1-. Glenton, [1898] 2 Q. B. 223 ; 67 L. J. Q. B. 731 ; 47 W. R. 13 ; rev. in 0. A., [1899] 1 Q. B. 885 ; 68 L. J. Q. B. 502 ; 80 L. T. 606 ; 47W. R. 435 158,238,356,382 ■ V. Mawson, 1 M. & S. 77 18 Barnettr. Cox, 9Q. B. 617; 15L. J. M. C. 27; 11 Jur. 118 401 Barney, Ee, Barnev *•. Barney, [1892], 2 Ch. 265 ; 61 L. J. Oh. 585 ; G7 L. T. 23;40W.R.637 274 Barrett, Ee, Whitaker v. Barrett, 43 C. D. 70 ; 59 L. J. Ch. 218 ; 38 W. R. 59 212 f. Birmingham, 4 Ir. Eq. R. 537 329,331 r. Johnson, 2 Jon. Ex. R. Ir. 197 241 and Suns, Ltd. t>. Davies, 91 L. T. 736 341.351 Barton c. North Staffs. Ry. Co., 38 C. D. 458 ; 57 L. J. Ch. 800 ; 58 L. T. 549 ; 36W. R. 754 224,240 Batchelor f. Middleton, G Hare, 75 329,331 Bateman v. Finder, 3 Q. B. 574 ; 11 I.. J. Q. B. 281 352 Batcson, jBe, [189GJ 2 I. R. 171 i518 Batten Pooll r. Kennedy, [1907] 1 Ch. 256 ; 76 L. J. Ch. 162 18 Battersby r. Rochfort, 10 Ir. Eq. R. 439 177 Battirthiil r. Reed. 18 C. B. GOG 204 Battley c. Faulkner. 3 B. & A. 288 202 Bealc r. Nind, 4 15. & A. 5G8 1 Bcaly -•. Greensladc. 2 Or. & J. 61 ; I L. J. Ilx. 1 375 Beamish u. Whitney, [1908] I [. R. 38 335,3.55 Bean /•. Wade, C. & E. 519 247 T.L.A. /' xviii TABLE OF CASES. PAGE Beaufort, Duke of . r. Aiid, 20 T. L. R. 602 40 Becher r. Delacour, 11 L. R. Ir. 187 337,366 Beck V Pierce, 23 Q. B. D. 316; 58 L. J. Q. B. 516; 61 L. T. 448; 38 W. R. 29 ... ... 207,326,380 Beck'ford r. Wade, 17 Ves. 87 69, 77, 268, 274 Beddall v. Maitland, 17 C. D. 174 ; 50 L. J. Cb. 401 ; 44 L. T. 24S ; 29 W. II. 484 ^*5 BeiRhton v. Beighton, 64 L. J. Ch. 796 ; 73 L. T. 86 ; 43 W. R. 685 ... 94, 107 BeUze Estate Co. v. Quilter,[1897] A. C. 367 ; 66 L. J. P. C. 53; 76 L. T. 361 135 Bell, Re, Lake v. Bell, 34 C. D. 462 ; 56 L. J. Ch. 307 ; 55 L. T. 757 ; 35 W. R. 212 ... ... ... ••• ••• ••• ••• ■• ■•• ••• ^^^ Belton'sEstatc-riie. [1894] ILR. 537 318 Bennett?;. Bernard, 12 Ir.Eq. R. 229 314,31b -y. Collv, 2 My. & K. 225 : 5 Sim. 181 261 BerminRham's Estate, i?e, Ir. R. 5 Eq. 147 ^^'^*^ Bermingham V. Burke, 2 Jo. & Lat. 699 313 Bermondsey Vestry v. Jolmson, L. R. 8 C. P. 441 ; 42 L. J. M. C. 67 ; 28 L. T. 665 ; 21 W. R. 626 ; 37 J. P. 392 416 Berrinsjton r. Evans, 1 Y. & C. Ex. 434 9, 313, 31o Bethell, lie, Bothell v. Bethell, 34 C. D. 561 ; 56 L. J. Ch. 334 ; 56 L. T. 92 ; 35WR330 219,220,351 Betjemann v. Betjemann, [1895] 2 Ch. 474 ; 64 L. J. Ch. 641 : 73 L. T. 2 ; 44 W. R. 182 240,298 Bettesworth & Richer's Contract, Re, 37 C. D. 535 ; 57 L. J. Ch. 749 ; 58 L. T. 796 ; 36 W. R. 544 ; 52 J. P. 740 411 Bevan r. Gethiug. 3 Q. B. 740 ; 12 L. J. Q. B. 37 ; 6 Jur. 971 37o y. London Portland Cement Co. Ltd., 67 L. T. 615 18 Bewley r. Power, Hayes & J. 368 344 Binus V. Nicholls. 2 Eq. 356 ; 35 L. J. Ch. 635 ; 14 W. R. 727 169, 171 Birch tJ. Wright, 1 T. R. 378 *^-3 Birch-Wolfe v. Birch, 9 Eq. 683; 39 L. J. Ch. 345; 23 L. T. 216; 18 W. R. 594 G6,67 Bird V. Gammon, 3 Bing. N. C, 883 ; 5 Scott, 213 ; 6 L. J. C. P. 258 ... 344, 349 Birkbeck, ^x parfe, L. R. 9 Q. B. 256 408 Birkenhead Union *•. Brooks, 95 L. T. 359 ; 70 J. P. 406 ; 22 T. L. R. 583 ... 237 Bishop i). Howard, 2 B. & C. 100 ; 3 D. & R. 293 103 Blachford, Re, Blacbford v. Worsley, 27 0. D. 679 ; 54 L. J. Ch. 215 ; 33 W. R. 11 ... 181 Blackburn (Mayor of) v. Sanderson, [1902] 1 K. B. 794 ; 71 L. J. K. B. 590 ; 86 L. T. 304 415,416 Blair r. Bromley, 2 Phil. 354 ; 5 Hare, 542; 16 L. J. Ch. 495; 11 Jur. 617 ... 299 V. Nugent, 3 Jo. & Lat. 673 ; 9 Ir. Eq. R. 400 162, 329, 331 V. Ormond, 17 Q. B. 423 ; 20 L. J. Q. B. 444 ; 15 Jur. 1054 324 Blake, ^e, 2 Ir. Ch. R. 643 1^6 Blake^.Powcr, 60L. T. 663; 37 W. R. 441 274 t). Foster. 2 Ball & B. 387, 565 90 V. Gale. 31 C. D. 196 ; 55 L. J. Ch. 319 ; 53 L. T. 689 ; 34 W. R. 177 : C. A., 32 C. D. 511 ; 55 L. J. Ch. 559; 55 L. T. 234; 34 W. R. 555; and see Be Gale 262,266 Blakemore i>. Glamorganshire Canal Co., 3 Y. & J. Ex. 60 ... 400 Blennerhassett r. Day, 2 Ball & B. 104 208 Board v. Board, L. R. 9 Q. B. 48 ; 43 L. J. Q. B. 4 ; 29 L. T. 459 ; 22 W. R. 206 128 Boatwright v. Boatwright, 17 Eq. 71 ; 43 L. J. Ch. 12 ; 29 L. T. 603 ; 22 W. R. 147... .. 384 Bobbett r. S. E. Ry. Co., 9 Q. B. D. 424; 51 L. J. Ch. 161 ; 46 L. T. 31 ; 46 J. P.823 11,40 Boden v. Smith, 11 L. J. C. P. 121 ; 13 Jur. 428 401 Bodger v. Arch, 10 Ex. 333 ; 24 L. J. Ex. 19 377, 381 Bodkin, Be. 12 Ir. Ch. R. 61 167 Boldero r. Halpin. 19 AV. R. 320 172 Bolding I'. Lane, 1 D. J. & S. 122; 32 L. J. Ch. 219; 7 L. T. 812: 11 W. R. 386 ; 9 Jur. X. S. 506 328,336,364 Boiling V. Hobday, 31 W. R. 9 77. 81, 83, 119 Bolton, Duke of, v. Williams, cited 2 Ves. J., p. 216 168 TABLE OF CASES. XIX PAGE Bond I' Hopkius, 1 Seh. and Lef. 413 208,251 Bonney i\ Kidgaid, 1 Cos, 145 265,278 Bonsor & Smith's Contract, fle, 34 C. D. 560 11 161 Booth r. Clive, 10 C. B. 827 393 Booth r. Purser, 1 Ir. Eq. R. 33 ... -. 90 Booth r. Earl of Warrington, 4 Bro. P. C. 163 ... 301 Boothby i'. rMortou, 3 Br. & B. 239 ; 7 Moore, 51 396 Borrows i. Ellison, L. R. 6 Ex. 128; 40 L. J. Ex. 131 ; 24 L. T. 365; 19 W.R. 850 "-^^^ Boswell, lie, [1906] 2 Ch. 359 ; 75 L. J. Ch. 234 ; 94 L. T. 243 ; 54 W. R. 306 ; on appeal, settled, [1907] 2 Ch. 331 ; 75 L. J. Ch. 658 375, 376, 378 Bourdin r. Greenwood, 13 Eq. 281; 41 L. J. Ch. 73; 25 L. T. 782; 20 W.R. 166 346 Bowden. 7?e, 45 C. D. 444; 59 L. J. Ch. 815; 39 W. R. 219 272, 283 Bowes, Tie, W. X. (1889), p. 53 209 Bowies' Case : See Lewis Bowles' Case Bowyer r. Woodman, 3 Eq. 313 17,155,178 Boydeli r. Drummond, 2 Camp. 157 340 Boyse, Be, Crofton v. Crofton, 33 C. D. 612; 56 L. J. Ch. 135 ; 55 L. T. 391 ; 35 W.R. 247 210 Boyt.-r r. Dodswortli, 6 T. R. 681 188 Bradley r. James, 13 C.B. 822; 22 L.J. C. P. 193; 1 W. R. 388 379 Bradshaw r. Widrington, [1902] 2 Ch. 430; 71 L. J. Ch. 627 ; 86 L. T. 726 ; 50 W. R. 561 360,367 Braithwaito r. Britain, 1 Keen, 206 383 Brandram r. Wharton, 1 B. & A. 463 382 Brassington v. Llewellyn, 27 L. J. Ex. 297 ; 1 F. & F. 27 116 Bravthwaite v. Hitchcock. 10 M. & W. 494 ; 6 Jur. 976 99 Breach, Ex parte, 12 W. R. 769 ; 10 Jur. X. S. 382 133 Brereton r. Hutchinson. 3 Ir. Ch. R. 361 274 Breslin r. Hodgens, Ir. R. 10 Eq. 260 165,185 Brew 17. Brew, [1899] 2 I. R. 163 357 Bridgman r. Daw, 40 W. R. 253 359 r. Gill, 24 Beav. 302 276 Briggs V. Wilson, 5 D. M. & G. 12 ; 17 Beav. 330 ; 2 Eq. R. 153 158, 212, 348, 363, 379, 385 Bright V. Larcher, 4 De G. & J. 608; 28 L. J. Ch. 837; 7 W. R. 658; 5 Jur. N. S. 1233 171 v. Legerton, 2 D. F. & J. 606 ; 30 L. J. Ch. 338 ; 3 L. T. 713 ; 9 W. R. 239 ; 7 Jur. N. S. 5.59 257,273 Brighton, Mayor of, v. Guardians of Brighton, 5 C. P. D. 368 ; 49 L. J. C. P. 648 ; 44 J. P. 683 10,99 Brigstocke r. Smith, 1 Cr. &M. 483; 2 L. J. Ex. 187 348 Brinsdon r. Williams, 38 Sol. Jouru. 603 275 Bristowr. Miiller, 11 Ir. L. R. 461 ... 343 British Liner Co. v. Drummond, 10 B. & C. 903 ; 9 L. J. O. S. K. B. 213 ... 214 British Mutual Investment Co. r. Smart, 10 Ch. 567 ; 44 L. J. Ch. 695; 32 L. T. 819; 23 W. R. «00 155,274,371 Brittlebank v. Goodwin, 5 Eq. 545; 37 L. J. Ch. 377; 16 W, II. 696 274 BrucklehurBt )■. Jessop, 7 Sim. 438 158,238,384 Brockwell v. Bullock, 22 Q. B. D. 567; .58 L. J. Q. B. 289 ; 37 AV. R. 455 ... 237 Bromlov District Council r. Croydon Corporation, [1908] 1 K. B. 353; 77 L. J. K. B. 335; 98 L.T. 165; 6 L. G. R. 165 ; 72 J. P. 17 230 Brook I). Lewie, 6 Madd. 358 170 Brooksbank /;. Smith, 2 V. & C. Ex. 58; 6 L J. Ex. Eq.3i 260 Br.xmihead, Jle, 5 D. & L. 52 ; 16 L. J. Q. B. 355 2(K» Brown's Estate. A'e, J. Brown r. Brown, [1893] 2 Ch. 300; 62 L. J. Cii. 695 ; CK L.T. 12; 41 W. R. 440 244 Brown v. Gordon, 16 Bonv. 302 ; 22 L. J. Ch. 65 ; 1 W. R. 2 3H1 c. HowarV; W'al. 7')0 7.90 ». Cross, 14 Beiiv. 105 261 p. Gibljons, 1 Salk. 206 203,236 XX TABLE OF CASES. PAGE Browning r. Paris, r. M. & W. 117 : 7 Dowl. P. C. 398 326 Bruce, lie, Ltiwford v. Bruce, [PJOS] 1 Cli. 850 ; 77 L. J. CU. iM ; 98 L. T. 834 ; reversed, [1908] 2 Ch. 682 ^10 Bruen r. Nowlan, 1 Jebb & Svm. 346, note 175 Brunswick. Duke of, v. Harmer, 14 Q. B. 185 ; 19 L. J. Q. B. 20 ; 14 Jur. 110 236 Brutton r. St. ( ieorge's, Hanover Square, 13 Eq. 339 ; 41 L. J. Ch. 134 ; 25 L. T. 552; 20 W. R. 84; 36 J. P. 580 4:16 Bryan V. Cowdal, 21 W. E. 693 116 Bryson v. Russell, 14 Q. B. D. 720: 52 L. J. Q. B. 144; 52 L. T. 208 ; 33 AV. P. 34; 49 J.P. 293 401 Bnccleugh, Duke of, I-. Eden, 61 L. T. 360 351 Buckr. Robson, lOEq. 629; 13L.J.C11. 821; 23L. T. 391 195 Bucket r. Church. 9 C. & P. 209 34o, 346 Buckler <•. Moor, 1 Mod. 89 202 Buckmaster r. Russell, 10 C. B. N. S. 745; 4 L. T. 552 ; 9 W.R. 749; 8 Jur. N. S. 155 350 Budgett V. Budgett, [1895] 1 Ch. 202 ; 64 L. J. Ch. 209 ; 76 L. T. 632; 43 W.R. 167 .". 211 Bulli Coal Mining Co. v. Osborne, [1899] A. C. 351 ; 68 L. J. P. C. 49 ; 80 L. T. 430 ; 47 W. R. 545 300 Bullock r. Downes, 9 H. L. C. 1 168 Bunting v. Sargent, 13 C. D. 330 ; 49 L. J. Ch. 109 ; 41 L. T. 643; 28 W. R. 12;; 1"! P.urdick V. Garrick, 5 Ch. 233; 39 L. J. Ch. 369 ; 18 W. R. 387 243, 246, 275, 277 Purge, lie, Gillard i: Lawrenson. 57 L. T. 364 ; 52 J. P. 20 3, 274 Burke I'. Jones, 2 Yes. & B. 275 162 P.urkitt r. Blanshard, 3 Ex. 89 37o Burn V. Boulton, 2 C. B.476; 15 L.J. C. P. 97 375, 376 Burns, The, [1907] P. 137 ; 76 L. J. P. 41 ; 96 L. T. 684 ; 71 J. P. 193 ... 390 r. Nowell. 5 Q. B. D. 444 ; 49 L. J. Q. B. 468 ; 43 L. T. 342 ; 29 W.R. 39 395 Burnside ;■. Burnside, [1906]1L R. p. 218 n 30 Burrell v. Earl of Egremont, 7 Beavr. 205 ; 13 L. J. Ch. 309 ; 8 Jur. 587 87, 361 Burroughs c. M-Creight, 1 Jo. & Lat. 290 ; 7 Ir. Eq. R. 49 32, 70, 77, 82, 117, 335 Burrowes v. Gore, 6 H. L. C. 907 ; 6 W. R. 699; 4 Jur. N. S. 1245 160, 276, 361 Burrows 1-. Baker, Ir. R. 3 Eq. 596 346 r. Walls, 5 D. M. & G. 233 ; 3 Eq. R. 960 ; 3 W. R. 327 260 Busby r. Sevmour, 1 Jo. & Lat. 527 : 7 Ir. Eq. R. 433 20O Bush V. Martin, 2 H. & C. 311 ; 33 L. J. Ex. 17 ; 8 L. T. 501 ; 11 W. R. 1078 : 12 W.R. 205: 10 Jur. 347 342 Bushby r. Dixon. 3 B. & C. 298 16,146 Buskin, iZe, 15 R. 117 348,351 Butler's Estate, J?e, 13 Ir. Ch. R. 453 320 Butler 1-. Carter, 5 Eq. 276: 18 L.T. 11; 16 W. R. 388 261 Byrne y. Duignan, 3 Jo. &Lat. 116; 9 Ir. Eq. R. 295 184 r. Frere, 2 Moll. 157 262.270.298 Byron r. Cooper, 11 CI. & F. 556 309 C. Cadbury r. Smith, 9 Eq. 37 ; 24 L. T. 52 ; 18 W. R. 105 158, 173 Camberwell Rent-charge, lie. 4 Q. B. 151 ; 12 L. J. Q. B. 155 ; 7 Jur. 128 ... 175 Campbell r. Graham, 1 R. & M. 453 262 Cann ^•. Clipperton, 10 A. & E. 582 393 v. Tavlor, 1 F. & F. 651 368 Cannon v. Rimington, 12 C. B. 1 ; 21 L. J. C. P. 137 62 Canterbury, Corporation of, i;. Cooper, [1908] r/mes, July 2 107 Carbcrv t\ Preston, 13 Ir. Eq. R. 455 361 Cardigan. Earl of. r. Armitage, 2 B. & C. 197 18 Carey r. Mayor of Bermondsey, 67 J. P. Ill 399 r. Cuthbert ; Ir. R. 7 Eq. 542 ; 9 ibid. 330 ; 22 W. R. 249 273 Carlton r. Bowcock, 51 L. T. 659 126 TABLE OF CASES. XXI PAGE Carlyon r. Loveriug, 1 H. iSr N. 784 li) Tarpue v. London & Brighton Ry. Co., 5 Q. B. 747 ; 13 L. J. Q. B. lo3 ; 8 Jur. 464 ; 3 Eail. Cas. 692 39o, 398 Carroll r. Darcv, 10 Ir. Eq. K. 321 313,335 c. Hargrave. Ir. R. 5 Eq. 123, 548 161,274 Carter r. White, 25 C. D. 666; 54 L. J. Ch. 138; 50 L. T. 670 ; 32 W. E. 692 232 Cartwright. Re, 16 Eq. 469; 42 L. J. Ch. 735 ; 28 L. T. 891 ; 21 AV. E. 891 ... 248 Cary r. Stephenson. Salk. 421 206 Casborne r. Scarfe. 1 Atk. 603 88 Cassidy r. Firman, Ir. R. IC. L. 8; 15 W. R. 432 348 Castrique r. Bernarbo. 6 Q. B. 498 219 Catling c. SkouldiDg, 6 T. R. 189 __ ... 215 Cator r. Croydon Canal Co.. 4 Y & C. Ex. 405; 13 L. J. Ch. 89 ; 8 Jur. 2, , ... 260 Cavendish r. Muudv. W. X. (1877). p. 198 66 Cawley r. Furnell, 12 C. B. 291 ; 20 L. J. C. P. 197 ; 15 Jur. 908 349 Central Rv. Co. of Venezuela v. Kisch, L. R. 2 H. L. 99 ; 36 L. J. Ch. 849 ; 16 L. T.'oOO: 15 W. R. 821 271 Chadwick v. Broadwood, 3 Beav. 308 ; 10 L. J. Ch. 242; 5 Jur. 359 113 Challinor 1-. Roden, 1 T. L. R. 527 309 Chalmer c. Bradlev. 1 Jac. & W. 51 69 Chamberlain, ^a; parte, 14 C. D. 323; 49 L. J. Ch. 354; 42 L. T. 358; 28 W. R. 565 132 V. King, L. R. 6 C. P. 474 ; 40 L. J. C. P. 273 ; 24 L. T. 736 ; 19 W. R. 931 393 & Hookham v. Bradford Corporation, 83 L. T. 518 ; 64 J. P. 806 397 Chambers r. Reid, 13 L. T. 703; 14 W. R. 370; 30 J. P. 231 391 Champion r. Riofbv. 1 R. & M. 539 265 Chan Kit San v. Ho Fun- Hang, [1902] A. C. 257 ; 71 L. J. P. C. 49 ; 86 L. T. 245; 51 W. R. 18 206 Chant. iiV, Bird v. Godfrey, [1905] 2 Ch. 225 ; 74 L. J. Ch. 542 ; 93 L. T. 265 ; 53W. R. 526 386 Chapman r. Corpe, 41 L. T. 22 ; 27 W. R. 781 72 & Co. V. Auckland Union, 23 Q. B. D. 294 ; 58 L. J. Q. B. 504 ; 61 L.T. 446; 53 J. P. 820 388 Chappell r. Rees, 1 D. M. & G. 393 ; 16 Jur. 415 316 Charlesworth r. Rudvard, 1 C. M. & R. 896 3S9, :'.90 Charter r. Trevelvan. 11 CI. & F. 714 ; 8 Jur. 1015 297 — — r. Watson, [1899] 1 Ch. 175; 68 L. J. Ch. 1 ; 79 L. T. 440 ; 47 W. R. 250 181,242 Chartered Bank c. Dickson, L. R. 3 P. C. 574 221 Chasemore v. Turner, L. R. 10 Q. B. 500 ; 45 L. J. Q. B. 6ii ; 33 L. T. 323; 24 W. R. 70 311,350 Cheese r. Keen, [1908] 1 Ch. 245 ; 77 L. J. Ch. 163 ; 98 L. T. 316 216 Cheslyn r. Dalby, 4 Y & C. Ex. 238; 10 L. J. Ex. Eq. 21 ... :!44, 346, 352 Chetham v. Hoare, 9 Eq. .-)7] : 39 L. J. Ch. 376 ; 22 L. T. 57 303. 307 Chichester, Earl of. r. Hall, 17 L. T. O. S. 121 24,25 Chinnery r. Evans, 11 H. L. C. 115; 11 L. T. 68; 13 W. R. 20; 10 Jur. N. S. 855 86, ISO, 357. 35s, 360, 367 Cholmondeley r. Clinton, 2 Jac. & W. 1, 162 ; 2 :Mer. 171 ; 4 Bligh 1 1, 2, 75, 76, 81,85. 91. 96, 112,251 Christ, College of, v. Martin, 3 Q. B. D. 16 ; 46 L. J. Q. B. 591 ; :;6 L. T. 537 ; 25W. R.637 407 Cliristiaii r. Devereux, 12 Sim. 264 168 Churcher v. Martin, 42 C. D. 312 ; .")8 L. J. Cli. .")86; 61 L. T. 113 ; 37 W. U. 682 ;!5, 4."), 74 Civil Service, &c., Association r. Whitcman, OH L. J. Ch. 4S1; 80 L. T. 685; i;3J. P. 441 Chibbon, Re, [1904] 2 Ch. 465; 73 L. J. Ch. 853; 91 !>. T. 316; 53 W. R. 43 Clanricarde, Marquis of /•. Henning, 30 Beav. 175 ; 3(1 L. J. Ch. 865 ; 5 1.. T 168; 9 W. R. 912; 7 Jur. N.S. 1113 (laridge »•. Mackenzie;, 4 Mail. i<: (ir. 143 Clark r. Alexander, 8 Scott \. 1!. 117 ; 13 L. J. C. P. i:;3 ; S Jnr. iW V. Hoop. J. Q. I!. 360 ; 74 L. T. 241 ; 41W. E. 452 4 Darky r. Tennant, 53 L. T. 2.")7 186 Darley Main Colliery Co. r. Mitchell, 11 App. Cas. 127; 55 L. J. (l 15. .520; .54 L.T. 882; 51 J. P. 148 205 Dartmouth, Earl of, i-. Spittle, 24 L. T. 6H ; 10 W. I!. 444 44, 304 Davieri, R>s, Ellis n. Roberts, [1898] 2 Ch. 142; 67 L. .1. Cli. 507; 70 L. T. 344 285 -■. Edwards, 7 Ex. 22; 21 L.. I. E.\. 4; 15 Jur. 1014 357 xxiv TABLE OF CASES. PAGE Davies v. Garland, 1 Q. 15. D. 2.10; 45 L. J. Q. B. 137; 33 L. T. 727; 2i W E. 252 "*^" I, Humphreys, G M. & W. 153 ; 9 L. J. Ex. 263 ; 4 Jur. 250 . . . 234, 235 ^ Mayor of Swansea, 8 Ex. 808 ; 22 L. J. Ex. 297 388 Da^as, Re, Evans v. Moore, [1891] 3 Ch. 119 ; 61 L. J. Ch. 85 ; 65 L. T. 128 ; 39AV. R. 627 l''-{ I- Curling, 8 Q. B. 286; 15 L. J. Q. B. 56; 10 Jur. 69 6bd Davison v. Gent,^ 1 H. & N. 744 ; 26 L. J. Ex. 122 ; 5 W. R. 229 ; 3 Jur. X. S Q49 ,,, «,• ... ••• ••• ••• ••• 1.21.1— Z Dawes i^Bagnall, 23 W.R.'690 ... ^■■\^,--^,--, •• ^'^'^• Dawkins v. Lord Penrhyn, 6 C. D. 323 ; 4 App. Cas. 51 ; 48 L. J. Cb 304 ; 39 L. T. 583; 27 W. R. 173 3, 44. /2, 11 / , 304 Day V. Day, L. R. 3 P. C. 751 ; 40 L. J. P. C. 35; 24 L. T. 856; 19 W. R. 1017 97, 102 Dean r. Th^Yaite, 21 Beav. 621 • ./•• .n;"m .-' ^^^ Dearie r. P.tersfield Union, 21 Q. B. D. 447 ; 57 L. J. Q. B. 640 ; bO L. T. bo ; 37AV. R. 113 ^^ Dearmau r. Wyche, 9 Sim. 570; 9 L. J. Ch. 76 9 De Beauvoir v. Owen. 5 Ex. 166 ; 19 L. J. Ex. 177 3, 2o De Bussche v. Alt. 8 C. D. 286; 47 L. J. Ch. 381 ; 38 L. T. 370 2.53 Delaney r. Fox, 2 C. B. N. S. 768 ; 26 L. J. C. P. 248 12b r. Metropolitan Board of Works, L. R. 3 C. P. Ill ; 37 L. J. C. P. o9 ; 17L. T. 262; 16 W. H. 137 389 Deloraiiie, Earl of. r. Browne, 3 Bro. C. C 633 29/, 29h Dennis, Re, Ex parte Dennis, [189.5] 2 Q. B. 630 ; 65 L. J. Q. B. 48 32U Denys r. Shuckburgh, 4 Y. & C. Ex. 42 ; 5 Jur. 21 190, 223, 260 Derbyshire r. Home, 3 D. M. & G. 80 261 Dering r. Earl of Winchelsea, 1 Cox, 318 ; 2 Wh. & T. L. C. (7th ed.) o35 ... 234 De Sousa v. Cobden, [l891] 1 Q. B. 687 ; 60 L. J. Q. B. 533 ; 65 L. T. 130 ; 39 W. R. 454 : 55 J. P. 565 ^06 Des Barres r. Shev, 29 L. T. 592 ; 22 W. R. 273 7 Deveryr. Grand Canal Co.. Ir. R. 9 O.'L. 194 204 Devon's, Earl of. Settled Estates, [1896] 2 Ch. 562 ; 65 L. J. Ch. 810 ; 75 L. T. 178;45W.R.25 10,15,56,60 Dewdnev, £"0; ?x, J, O. S, C, 1', 157 ... . . 206. 295 Douglass V. L. & N. W. Ky. Co., 3 K. & J. 173; 3 Jur. N. S. 181 ... . 132 DouBt r. Slater, 10 B. & S. 400; 38 L. J. Q. B. 1.-j9 ; 20 L. T, 525: 3.; J I', 581 '.;. ... :;:,l Dover f, .Mai.ster, 5 Esp, 92 103 Dovey V. Cory, [1901] A, C. 477 ; 70 L. J. cii, 753 ; 85 iV.T. 257; 50 W. E. 6.") 283 Dower f. Dower, 1 5 E, E. I r. 264 28, 157, lf;3, 168 Dowling V. Fonl, 11 M. & W. 329; 12 E, J, Ex. 312 ". " ... ' 382 Downes r. Bullock, 25 I'.eav. 51 (»e« Bnllock c, Downes) I6S xxvi TABLE OF CASES. Downino- v. Capel, I,. K. 2 C. P. 461 : 36 L. J. M. C. 97; 16 L. T. 323; 15 W. R. 745 Doyle v. Culverwell. 4 D. F. & J. 20 — ^ — r. Foley, [1903] 2 I. R. 95 r. Kaufman, 3 Q. B. D. 7, 340 ; 47 L. J. Q. B. 26; 26 W. E. 98 Drew v. Earl of Norlmry, 3 Jo. & Lat. 267 ; 9 Ir. Eq. E. 171, 524 Driver /•. Broad, [1893] 1 Q. B. 744 ; 63 L. J. Q. B. 12 ; 69 L. T. 169 W. K. 4S3 Drogheaa Steam Packet Co., Be, [1903] 1 I. R. 512 Droiiffbt r. Jones, 2 Ir. Eq. R. 303 Drum^mona r. Sant, L. R. 6 Q. B. 763 ; 41 L. J. Q. B. 21 ; 25 L. T. 419 W. R. IS Dublin, Archbishop of, r. Coote and Lord Trimleston, 12 Ir. Eq. E. 2.3l Dublin, Corporation of. v. Judge, 11 Ir. L. R. 8 Duffy's Estate, 7i'e, ri897] 1 I. K. 307 DuifV r. Duffv, [1906] I. E. 205 Dugilalo r. Yize, 5 Ir. L. R. 568 Dundee Harbour, Trustees of, r. Dougall. 1 Macq. H. L. 317 Dundas r. Blake, 11 Ir. Eq. K. 138 Dunne '•. Doran, 13 Ir. Eq. E. 545 ... n Doyle. 10 Ir. Ch. R. 502 Dupleix r. De Roveu, 2 Vern. 540 •••^ Durrant c. Ecclesiastical Commissioners, 6 Q. B. D. 234 ; 50 L. J. Q. B. 3f! L. T. 348 ; 29 W. R. 443 ; 45 J. P. 270 Du Yigier v. Lee. 2 Hare, 326; 12 L. J. Ch. 345; 7 Jur. 299 Dyer r. Best. L. E. 1 Ex. 152 ; 35 L. J. Ex. 105 ; 13 L. T. 753 : 14 W. R. 12 Jur. X. S. 142 240 E. Eads T. Williams, 4 D. M. & G. 674 ; 24 L. J. Ch. 531 ; 1 Jur. N. S. 193 ... 270 Kardley r. Granville, 3 C. D. 826 18 Earle r. Bellingham, 24 Beav. 448 ; 47 L. J. Ch. 545; 3 Jur. N. S. 237 170, 171 East India Co. r. Campion, 11 Bligh. N. S. 158 208 r. Paul, 7 Moo. P. 0. C. 85 ; 14 Jur- 2.53 202, 208 East London Water\vorks Co. v. Charles, [1894] 2 Q. B. 730 ; 63 L. J. 31. C. 209 ; 71 L. T. 200 ; 42 W. R. 702 ; 58 J. P. 764 417 East Stonehouse Urban Council r. Willoughby Brothers, [1902] 2 K. B. 318; 71 L. J. K. B. 873; 87L. T. 366: 50 W. R. 698 84,111 Eaton r. Taplev, [1899] 1 Q. B. 953 ; 68 L. J. Q. B. 638 ; 80 L. T. 797 ; 47 W. R. 463 '. ■i Ebbs' Estate. AV, 31 L. E. Ir. 95 31;j, 316 I-:cclesiastical Commissioners v. N. E. Ry. Co., 4 C. D. 845 ; 47 I.. J. Ch. 20 ; 36L. T. 174 300 V. Parr, [1894] 2 Q. B. 420; 03 L. J. Q. B. 784 ; 71 L. T. 65; 42 W. R. 561 94 V. Eo\ve, 5 App. Cas. 736; 49 L. J. Q. B. 771; 43 L. T. 353 ; 29 W. R. 159 ; 45 J. P. 36 13, 14, 111 , Sligo, 5 Ir. Ch. R. 46 175 Treemer. [1893] 1 Ch. 166; 62 L. J. Ch. 119; 68 L. T. 11; 41 W. R. 166 Ill 393 172, 91 LI t 311 104 : 41 17 196 180 ; 20 78, 107 13, 47. 48 332, ,333 42 277 331 1 102 274 167 230 ; 44 177 "" 9 ,182 336; Eddlestonc r. Francis, 7 C. B. K S., 568 414 Edmunds r. Downes. 2 Cr. & M. 459 ; 3 L. J. Ex. 98 344, 351 »-. Goater, 15 Beav. 415 : 21 L. J. Ch. 290 350 r. Waugh, 1 Eq. 418 ; 35 L. J. Ch. 234 ; 13 L. T. 739 ; 14 W. R. 257 ; 12 Jur. X. S. 326 182,183 Edmundson, Be, R. r. Leeds and Bradford Ey., 17 Q. B. 67; 21 L. J. INI. C. 193 ; 13 Jur. 817 417 Edwards r. Clay, 28 Beav. 145 223 r. C.iombe, L. E. 7 C. P. 519 ; 41 L. J. C. P. 202 : 27 L. T. 315 ; 21 W. E. 107 209 r. Janes, 1 K. & J. 534 ; 3 W. R. 566 379 TABLE OF CASES. XXVU PAGE Eilwards v. Vestry of St. Mary, Islinsrton, 22 Q. B. D. 338 ; 58 L. J. Q. B. IG.") ; 60 L. T. 725 : 37 W. E". 347 ; 53 J. P. 180 394 r. Warden, 9 Ch. 495; 1 App. Cas. 281 ; 45 L. J. Ch. 713; :;5 L. T. 174 168,281 Eliot r. Allen, 1 C. B. 18 396 Ellard r. Cooper, 1 Ir. Ch. E. 376 200 Elliott r. Thompson. 33 L. T. :;39 409 Ellis c. Crawford, 5 Ir. L. E. 402 30 Elvy V. Norwood, 5 De G. & Sm. 240 ; 21 L. J. Ch. 716 ; 16 Jur. 493 ... 182, 184 Ely, Dean of, r. Bliss, 2 D. M. & G. 459 ; 11 L. J. Ch. 351 ; 6 Jur. 496 ... 7, 17, 19, 22 Emerv r. Day, 1 C. M. & R. 245 ; 3 L. J. Ex. 307 249 Emmett, i?e, 95 L. T. 755 342 England, L'e, Stewart v. England, [1895] 2 Ch. 820 ; 65 L. J. Ch. 21 ; 73 E. T. 237; 44 W. E. 119 362 English r. Metropolitan Water Board, 71 J. P. 313 391, 400 Epsom District Council r. London County Council, [1900] 2 Q. B. 751 ; 69 L. J. Q. B. 933 ; 83 L. T. 284 ; 49 W. E. 302 ; 64 J. P. 727 230 Erlangcr r. New Sombrero Phosphate Co., 3 App. Cas. 1218 : 39 L. T. 269 ; 26W. E. 65 258,260.263 Ernest r. Croysdill, 2 D. F. & J. 175 ; 2 L. T. 616 ; 8 W. E. 736 ; 6 Jur. N. S. 740 276 Evans, ^f. 42 L. J. Ch. 357 133 V. Davies. 4 A. A: E. 840 ; 6 L. J. K. B. 268 375. 381 V. Jones, 2 B. & S. 45 ; 5 L. T. 393 ; 8 Jur. N. S. 641 311 r. O'Donnell, 16 L. E. n-., 445; 18 L. E. Ir. 170 166,167 r. Prothero, 1 D. M. & G. 572 ; 21 L. J. Ch. 772 345 r. Simon, 9 Ex. 282; 23 L. J, Ex. 16; 2 W. E. 40 346 ^ r. Smallcombe, L. E. 3 H. L. 249 ; 19 L. T. 207 263 r. Tweedie, 1 Beav. 55 ; 8 L. J. Ch. 46 158,280 Everett v. Eobertson, 1 E. & E. 16; 28 L. J. Q. B. 23; 7 W. E. 9; 4 Jur. N.S. 1083 350 Eyre r. Walsh, 10 Ir. C. L. E. 346 92 F. Fairbrother v. Bury Sanitary Authority, 37 W. E. 544 205, 399 Fannin v. Anderson, 7 Q. B. 811 ; 14 L. J. Q. B. 282 ; 9 Jur. 969 ... 296, 371 Farran r. Beresford, 10 CI. & F. 319 159,166 Furrarr. Farrars, Ltd., 40 C. D. 395; 58 L. J. Ch. 185; 60 L. T. 121; 37 W. E. 196 266 Farrell r. Gleeson, 11 CI. & F. 702 166 Farrington r. Lee, 1 Mod. 268 214 Faulkner r. Daniel, 3 Hare, 199 171 Fausset v. Carpenter, 2 Dow. & C. 232 76 Feam r. Lewis, 6 Bing. 349 ; 8 L. J. O. S. C. P. 95 348 Fearnside v. Flint, 22 C. D. 579 ; 52 L. J. Ch. 479 ; 48 L. T. 154 ; 31 W. E. :'.I8 L17, 355 Fenner r. Duploek, 2 Bing. 10 126 r. Lord, 14 T. 1>. R. 450 352 Fenton c. Emblers, 3 Burr. 1278 202 r. Tiiorley & ('»., [19(»3] A. C. 443; 72 L. J. K. B. 787; 89 J.. T. 31 I ; 52W. E. 81 391 Fenwick v. Eeed, 1 Mer. 11 1 i»l Fergus c. Gore, 1 Sch. iV- Lof. 107 162 Ferguson c. Livingstone, 9 I r. Eq. E. 202 176 FergUHSon r. FyHc, 8 (1. \; F. 121 291 Fielding v. Morlcy Coriioration, [1899] 1 Ch. 1 ; [1900] A. ('. 133; (V.\ L. J. Cii. 314 ; 82 L. T. 29; 18 W. It. 545; 64 J. ]'. 484 388, 301 Kincii v. Finch, 45 L. .1. Ch. SK; ;:;.-) L. T. 235 211,315 Finegun'a Estate, 7/e, [1906] 1 L R. 3711 ;i(;i Fiiihiy r. Briwtol mid llxeter Ry. Co.. 7 Ex. I(i9; 21 L. J. llx. 117 103 Firth /•. Sling«bv, 5H 1.. T. iHl" •_';;s. 317, :!18 Fisk r. Mitchell, lil E. T. -.^72; 19 W. i;. 7'.i8 ... ::.")2 Xxviii TABLE OF CASES. PAGE Fitzgerald, i?e. [1807] 1 I. R. aoO 165 Fitzgerald's Settlement, lie, 37 C. D. 18; o7 L. J. Ch. 504; 57 L. T. 706; now. R. 3S5 280 Fitzinaurices, i?e, 15 Jr. Cli. R. lis 337, 3GG Fitzrov. &c., Steel Co., Ik, 50 L. T. 144 ; 32 AV. R. 475 ; 33 W. K. 312 ... 299 Fletcher r. Bird, Fisher on Mortgaoes, 5th ed., p. 972 01, 117 Flitcroft's Case, 21 C. D. 510; 52^ L. J. Ch. 217; 48 L. T. 86; 31 \V. R. 174 278, 283 Flood r. Patterson, 20 Beav. 205; 30 L. J. Ch. 486; 4 L. T. 78; 9 VV. R. 327; 7Jnr.N. S. 324 206,295 Flower r. L(.w Leytou Local Board, 5 C. D. 347 ; 46 L. J. Ch. 621 ; 36 L. T. 760; 25 W. R. 545 388 Foat V. 3Iavor of Maroate. 11 Q. B. D. 290 ; 52 L. J. Q,. B. 71 1 ; 47 J. T. 535 389 Foley V. Hill, 1 Phil. 300 ; 2 H. L. C. 28 ; 13 L. J. Ch. 182 ; 8 Jur. 347 ... 216 Forbes >: Smith. 11 Ex. 161 ; 24 L. J. Ex. 299 ; 3 W. R. 476 ; 1 Jur. N. S. 503 295 Ford r. Aaer, 2 H. & C. 279; 32 L. J. Ex. 269; 8 L. T. 546; 11 W. R. 1073; Jm-.^N. S. 804 8,92 Forde, £".« war^, [1894] 1 I. R. 156 132 Fordham r. Wallis, 10 Hare. 217; 22 L. J. Ch. 548; 1 W. R. 118; 17 Jur. 228 200, 212, 213, 364. 374, 384, 385 Forster v. Patterson, 17 C. D. 132 ; 50 L. J. Ch. 603 ; 44 L. T. 465 ; 20 W. R. 463 290 Forsvtli f. Bristowe, 8 Ex. 347 ; 22 L. J. Ex. 70 325 " 8 Ex. 716 ; 22 L. J. Ex. 255 ; 1 W. R. 356 ; 17 Jur. 675 86, 358, 350, 363, 369 Foster v. Bates. 12 M. & W. 226 ; 13 L. J. Ex. 88 ; 7 Jur. 1093 ... 50, 205 /•. Dawber, 6 Ex. 839 ; 20 L. J. Ex. 385 374,378 . r. Hodgson, 19 Yes. 180 297 /;. 3Iutual Reserve Insurance Co., 20 T. L. R. 715 271 Fouutaine, Ri-, Fountaine v. Lord Amherst, 1008, Times, December 9 375 Francis r. Grover, 5 Hare, 39; 15 L. J. Ch. 09; 10 .Jur. 280 ... 162, 176, 179 ■ V. Hawksley, 1 E. & E. 1052 ; 28 L. J. Q. B. 370 ; 7 W. R. 500 ; 5 Jur. N.S. 1301 350 Eraser r. Swansea Canal Co., 1 A. & E. 354 ; 3 L. J. K. B. 153 398 Freake i: Cranefeldt. 3 3Iy. & C. 499 ; 8 L. J. Ch. 61 ; 2 Jur. 1080 207 Freegard f. Barnes, 7 Ex. 827 ; 21 L. J. Ex. 320 306 Freeman r. Barnes. 1 Yentr. 80; 1 Sider. 349, 458 "6 r. Cooke. 2 Ex. 654 259 i: Jeflferies. L. R. 4 Ex. 189 ; 38 L. J. Ex. 116 ; 20 L. T. 533 ... 239 r. Stacev. Hutt. 109 195 Friend, He, Friend r. Youn-, [1807] 2 Ch. 421 ; 78 L. T. 222 ; 46 W. R. 139 243, 376 Frisbv, Me. Allison r. Frisby, 43 C. D. 106 ; 50 L. J. Oh. 94 ; 61 L. T. 632 ; 38W.R. 65 157,355,369 Fryer r. Roe. 12 C. B. 437 218 Fuller r. Redman (Xo. 2), 20 Beav. 614 209,211,212,342 Furness r. Meek, 27 L. J. Ex. :J4 345 Fursdon c. Clogg, lOM. & W. 572 331,333 Fyson r. Pole, 3 Y. & C. Ex. 266 208 G. Gabv 1-. Wilts and Berks Canal Co., 3 M. & S. 580 394 Gale. Re, Blake v. Gale, 22 C. D. 820 ; 53 L. J. Ch. 604 ; 48 L. T. 101 ; 31 W. R. 538 369 Games r. Bonnor, 54 L. J. Ch. 517; 33 W. R. 64 118 Garden r. Bruce, L. R. 3 C. P. 300; 37 L. J. C. P. 112; 17 L. T. 545; 16 \Y. R. 366 237 &c., Mining Co. i: McLister, 1 App. Ca:s. 30 ; 33 L. T. 408 ; 24 AV. R. 744 267 Gardner 1-. Brooke, [1897] 2 L R. 20 235,239,383 • V. M'Mahon, 3 Q. B. 561 ; 11 L. J. Q. B. 297; 6 Jur. 712 350 Gamer v. AVingrove, [1905] 2 Ch. 233; 74 L. J. Ch. 545; 93 L. T. 131; 53W. R. 588; 288 Garrard r. Lauderdale, 2 R. & M. 451 279 TABLE OF CASES. xxix Garrard v. Tuck, 8 C. B. 231 ; 18 L. J. C. P. 338 7G ''lOO Garratt, 7/e, 18 W. R. G84 .. .?ii Garth v. Cotton, 1 Ves. S. 524, 546 : 2 Wh. & T. L. C. 7th ed. 970 ~m Gedyo v. Commissioners of Works, [1891] 2 Ch. 630 ; 60 L. J. Ch. 587 ; 65 L. T. 359; 39 W. R. 598 13-', 133 General Rolling Stock Co., /.'«, 7 Ch. 646 ; 41 L. J. Ch. 7:i2; 27 L. T. 88 ; 20 ' W. R. 762 314,315,318,319 Gent I'. Harrison, Johns. 517 ; 29 L. J. Ch. 68 ... ... ... ... ^)^J qj George, h'e, Francis v. Bruce, 44 C. D. 627 ; 59 L. J. Ch. 709 ; 63 L. T 49 • 38W. R. 617 ' ■>>i Gething v. Keighlev, 9 C. D. 547 ; 48 L. J. Ch. 45 ; 27 W. R. 283 ... '" •"'16 Gibbon v. Snape, 1 D. J. & S. 621; 33 L. J. Ch. 103; 9 L. T. 132 • 11 "W R 1087: 9 Jur. N. S. 1096 189 Gibbs v. Guild, 9 Q. B. D. 59; 51 L. J. Q. B. 313 ; 46 L. T. 248 • 30 W R 591 ; 4(;j. P. 310 188,193,301 Gibson ». Wise, 35 W. R. 409 116 Gillard v. Lawrenson. See 7iV Bnrge. Gillon V. Boddington. Ry. & iM. 161 ; 1 C. & P. 541 39'» Gilman r. Chute.^11 Jr. L. R. 442 ]] 1G6 Glasgow (Lord Provost of) r. Fairie, 13 App. Cas. 657; 58 L. J. 1' C 33- 60L. T. 274; 37 W. R. 027 ' ig Gleadow r. Atkin, 1 Cr. A: Mee. 410 ; 2 L. J. Ex. 16.'! 363 381 (Tledhill r. Hunter, 14 C. D. 492 ; 49 L. J. Ch. 333 ; 42 L. T. 392 ; 28 W. R 530 ' 188 Gloucester, etc., Ry. Co., Re, 2 Giff. 47 ; 29 L. J. Ch. 383 ... 250 Gl\ n V. Hood, 1 D. F. & J. 334 ; 29 L. J. Ch. 204 ; 1 L. T. 353 ; S W. R '>4S • 6Jur. N. S. 153 ' 255 Goate I'. Goate, 1 H. & N. 29 35I Godfrey r. Poole, 13 App. Cas. 497; 58 L. T. 685 '.." 280 Godwin i\ Culley, 4 H. & N. 373 ... ... ... ... ... . ;jj.2 344 (Toodallr.Skcrratt,3Drew.216; 24 L. J. Ch. 323 ; 3W. R. 152; 1 Jur \ S 57"' ' 68 Goode r. Job, 1 E. & E. 6 ; 28 L. J. Q. B. 1 ; 7 W. R. 7 ; 5 Jur. N. S. 145 331, 333 Goodtitle r. Baldwin, 11 East, 488 120,141 142 Goodwin V. Parton, 41 L. T. 94 375*383 Gordon r. Gordon, 3 Swanst. 400 ' 270 Gosdeu r. Elphick, 4 Ex. 445; 19 L. J. Ex. 9; 13 Jur. 989 ... ... ... 306 Gould V. Johnson, 2 Salk. 422 ; 2 Ld. Raym. 838 '" -^O" r. Shirley, 2 Moo. & P. 581 ; 7 L. J. 0. S. C. P. 117 .' 'ifl Gowan y. Forster, 3 B. & Ad. 507 :!7^s Gowers, Ex jxtrte, 3 Mont. & A. 172 ; 6 L. J. Bk. 49 '.. 274, 275 Graham r. Lewis, 80 L. T. Newsp. 66 ' 186 /•. Mayor of Newcastle, [1893] 1 Q. B. 643; 62 L. J. Q. B."315; 69 L. T. 6 401 Grand Junction Waterworks Co. r. Hampton District Council. 15 T. L. R. 412 38S Granger r. George, 5 B. & C. 149 >>->^> Grant v. Ellis, 9 M. & W. 113; 11 L. J. Ex. 228 ... 22, io."i, 113 Graves r. Arnold, 3 Camp. 242 393,396 Gray ij. Bateman, 21 W. li. 137 246,' 278 (ireat Western, etc., Ry. Co., Re, Ex parte Wryghtc, 5 De (r. & Sm. 244; 16 ' Jur. 812 ;;[() Cireaves, R<; Bray r. Tofield, 18 C. D. 551 ; 50 L. J. Cli. 817; 45 \'''V. 464' 30 W. R. 55 314,315 Grece v. Hunt, 2 Q. B. D. 389 ; 46 L. J. M. C. 202 ; 36 L. T. 404 : 26 W. R. 543 "ill (Jreen r. Humpiireys, 26 C. D. 474 ; 53 L. J. Ch. 625; 51 L. T. 42 ... 3:!9. 311 Greene's Estate, /i'*-, 13 L. R. Ir. 461 197. 321, 36.!, 369 (Jrfcuway r. I5njmfi(ld, 9 Hare, 201 315,316 r. Iliud, 4 T. K. 553 396 Greenwell /•. Howell, [1900] 1 Q. B. 535; 69 L. J. Q. 1!. 161 ; 82 L. T. 183; 48W. i;.307 390,397 /•. Low I'.eecliburn Coal Co., [1897] 2 (,). B. 165; (\ij I.. .1. (i. 1$. 643; 76 L. T. 759 205 Gregory v. Doidge, 3 Bing. 474 126 1). (in-gory, Coop. 201 261.261 V. Hurrill, 5 B. iV- C. 311 213.295 Gregsou /•. Ilimlley, 10 Jur. :!83 337,366 <;rcnf.ll V. (iir.llostonc, 2 V. & C. E.\. 662; 7 i,. J. llx. I^i. 12; I Jiu. ;tl(i ... :::i0 XXX TABLE OF CASES. I'AGE Gresley r. Adderley, 1 Swanst. 573 320 r. 3Iousley, 1 Giff. 450 265 Griffith v. Taylor, 2 C. P. D. 194 ; 46 L. J. C. P. 152 ; 36 L. T. 5 ; 25 W. E. 196 393 Grogan r. Began, [1902] 2 I. E. 196 105 Groome v. Blake, 6 Ir. C. L. R. 400 ; 8 ibid. 428 121, 321 Gurney, Be. Mason r. Mercer, [1893] 1 Ch. 590 ; "J8 L. T. 289; 41 W. R. 443 282 Guy r. AVest, 2 Selw. N. P. 1244 43 H. Hague r. Doncaster Rural District Council. 1908, Times, December 2 ... 308 Haigh *-. West, [1893] 2 Q. B. 19 ; 62 L. J. Q. B. 532; 69 L. T. 165 41 Hale, lie, [1899] 2 Cli. 107 ; 68 L. J. Ch. 517 ; 80 L. T. 827 ; 47 W. E. 579 358, 880 Hales r. Stevenson, 8 L. T. 798 ; 11 W. R. 952 ; 9 Jur. X. S. 300 352 Hall V. Barker, Be, 9 C. D. 538 ; 47 L. J. Ch. 621 ; 26 W. R. 501 248 r. Duke of Norfolk, [1900] 2 Ch. 493 ; 69 L. J. Ch. 571 ; 82 L. T. 836 ; 48 W.R. 565; 64 J. P. 710 205 r. Noyes, cited 3 Ves. p. 748 265 Hamilton, Be, [1895] 2 Ch. 370 ; 64 L. J. Ch. 799 ; 72 L. T. 748 ; 43 W. R. 577 72 Hammersmith Vestry r. Lowenfeld, [1896] 2 Q. B. 278; 65 L. J. Q. B. 662: 75 L. T. 182; 45 W.R. GO; 60 J. P. 600 416 Hammond r. Smith, 33 Beav. 452; 9 L. T. 746; 12 W. R. 328; 10 Jur. X. >s. 117 244.351 Hampstead Corporation v. Caunt, [1903] 2 K. B. 1 ; 72 L. J. K. B. 440; 88 L. T. .599; 51 W. R. 700 415,416 Hanan *-. Power, 8 Ir. L. R. 505 331 Hanbury, Be, Hanbury r. Fisher, [1904] 1 CIi. 415; 73 L. J. Ch. 222; 90 L. T. 66; 52 W.' R. 662: reversed in H. L. Comiskey v. Bowring- Haubury (qr.r.) ... 72 Hancock, i?e, 57 L.J. Ch. 793; 59 L. T. 197; 36 W.R. 710 243 Hanks r. Palling, 6 E. & B. 659 116 Hanly r. Carroll, [1907] 1 I. R. 166 162,173 Harcourt r. White, 28 Beav. 303 ; 30 L. J. Ch. (581 ... 66, 158, 172, 262, 273 Harding r. Edgecumbe, 28 L. J. Ex. 313 380 Hard wick r. Moss. 7 H. & N. 136 ; 31 L. J. Ex. 205 393, 396 Hardy r. Ryle, 9 B. & C. 603; 7 L. J. O. S. M. C. 118 201, 400, 402 Harland r. Binks, 15 Q. B. 713 279 Harlock r. A.shberry, 19 C. D. 539 ; 51 L. J. Ch. 394 ; 46 L. T. 356 ; 30 W.R. 327 9,356,358.360 Harmood r. Oglander, 6 Ves. 199; 8 Yes. 106 S2, 189 Harper & Great Eastern Ey. Co., Be, 20 Eq. 39 ; 44 L. J. Ch. 507 ; 32 L. T. 214; 22 W.R. 942; 23 W.R. 371 411 Harper r. Charlesworth, 4 B. & C. 574 141 Harrington r. Corporation of Derby, [1905] 1 Ch. 205 : 92 L. T. 153 ; 69 J. P. 62; 3L. G. R. 321 399,400 r. Wheeler, 4 Ves. 686 270 Harris, Be, [1901] 1 Ch. 931 ; 70 L. J. Ch. 432; 84 L. T. 203 133 49L. J. Ch. 327 236 r. Harris, 29 Beav. 110 267,275 r. Osbourn, 2 Cr. &Mee. 629; 3L. J. Ex. 182 248 r. Quine, L. R. 4 Q. B. 653 ; 10 B. & S. 644; 38 L. J. Q. B. 331 ; 20 L.T. 947; 17 W.R. 967 214,248 r. Truman, 7 Q. B. D. 340 ; 50 L. J. Q. B. 633 ; 9 Q. B. D. 264 ; 51 L. J. Q.B. 338; 46L. T. 844; 30 W. R. 533 71 Harrison r. Hollins, 1 Sim. & St. 471 ... 90 r. Kirk, [1904] A. C. 1 ; 73 L. J. P. C. 35; 89 L. T. 566 320 Harrisson r. Duignan, 2 Dr. & War. 295; 1 Con. & Law. 376. S. C. Keyne r. Dignan, 4 Ir. Eq. R. 562 156,184,321 Harrop r. Ossett Corporation, [1898] 1 Ch. 525 ; 67 L. J. Ch. 347 ; 78 L. T. 387 ; 46 W. R. 391 ; 62 J. P. 207 388 Hart^. Xash, 2 C. M. &R. 337 377 V. Prendergast, 14 M. & W. 741 ; 15 L. J. Ex. 223 o50 V. Stephens, 6 Q. B. 937; 14 L. J. Q. B. 148; 9 Jur. 225 381 Hartford (-.Power, Ir.R. 2 Eq. 204; 10 W.R. 822 173 TABLE OF CASES. xxxi PAGE Hartland v. Jukes, 1 H. & C. 667; 32 L. J. Ex. 162; 7 L. T. 792 ; 11 W. R. 519; 9 Jur. X. S. 180 231 Hurtlev, Be, [191JU] 1 Ch. 152 ; 69 L. J. Ch. 79 ; 81 L. T. 80i ; 48 W. R. 215 160, 162 ~r. Wharton, 11 A. & E. 934; 9 L. J. Q. B. 209 344 Harty r. Davis, 13 Ir. L. R. 23 336,366 Hasell, Ex parte, 4 Y. A: C. Ex. 617 ; 3 Jur. 1101 7. 32. 73, 268 Hastings, Me, Hallett v. Hastings, 35 C. D. 94; M L. J. Ch. 631; 57 L T. 126 ; 35 W. R. 584 ; 52 J. P. 100 279 ■ Lord r. Sadler, 79 L. T. :^55 108 Hatch 1-. Hatcli, 9 Ves. 292 270 Hatton, Re, Ex parte Hodges, 7 Ch. 723; 52 L. J. Bk. 12; 27 L. T. 396; 20\V. R. 978 209 Hawes, Re, Burchell v. Hawes, 62 L. J. Ch. 463 ; 67 L. T. 756 ; 41 W. R. 173 87, 361 Hawkins, iZe, Hawkins r. Hawkins, 28 W. R. 240 378 r. Gardiner, 2 Sm. & GiflF. 441 286 Hawksbee v. Hawksbee, 11 Hare, 230 jQg Hayden, Be, [1904] 1 L R. 1 ;" 95, 105, 117 V. Williams, 7 Bing. 163 ; 9 L. J. O. S. C. P. 16 343, 351 Hayes I'. Woodley, 3 Ir. Ch. R. 142 104 Hazeldiue's Trusts, Re, [1908] 1 Ch. 34 ; 77 L. J. Oh. 97 ; 97 L. T. 818 183, 196 Hazeldine *•. Groves, 3 Q. B. 997 ; 12 L. J. 31. C. 10 ; 7 Jur. 36 ... 393, 396 Healey, £x ^arfe. 1 Deac. & Ch. 361 ... ... ... ... . 319 Heath i\ Brewer, 15 C. B. X. S. 803 ; 9 L. T. 653 ..'. ... ... ... :;9;! r. Henley, 1 Ch. Cas. 20 ... ' 97(5 V. Pugh, (C.A.) 6 Q. B. D. 345 ; 50 L. J. Q. B. 473 ; 44 L. T. 327; *29 W. R. 904 ; (H.L.) Pugh r. Heath, 7 App. Cas. 235 ; 51 L. J. Q. B. 367 ; 46 L. T. 321 ; 30 W. R. 553 ... 3, 9, 15, 46, 49, 86, 87, 154 r. Wickham, 5 L. R. Ir. 285 261 Hebblethwaite r. Peevor, [1892] 1 Q. B. 124; 40 W. R. 318 ... ... '" 165 Helps r. Winterbottom, 2 B. & Ad. 431 ; 9 L. J. O. S. K. B. 258 231 Helsham r. Lani;ley, 11 L. J. Ch. 17 y;-]2 Hemmings v. Blauton, 42 L. J. C. P. 158 ; 21 W. R. 636 ... ... ... 86 Hemp V. Garland, 4 Q. B. 519; 12 L. J. Q. B. 134; 7 Jur. 302 ... ,'.'. 238 Henderson 1-. Atkins, 28 L. J. Ch. 913 I73 Henriques 1-. Bensusan, 20 W. R. 350 279 Heury v. Smith, 2 Dr. & War. 381 ; 5 Ir. Eq. R. 502 ; 1 Con. fcLaw. 506 ... 156. 164. 178, 179, 180, 31(i Henton f. PadJison, 68 L. T. 405 231 Hepburn, Re, Ex, parte Smith, 14 Q. B. D. 394; 54 L. J. Q. B. 422 ... 155, 213 Hercy f. Ballard, 4 Bro. C. C. 468 189 v. Dinwood, 2 Ves. Jun. 87 262 298 Hermann v. Seneschal, 13 C. B. N. S. 392; 32 L. J. C. P. 43 ; 6 L T 646 • IIW. R. 184 ; 393 Hertford, Marquis of, r. Boore, 5 Ves. 719 ..." 270 Hervey 1-. Wynn, 22 T. L. R. 93 !. 16o','329. 331, 336 Hewett V. Barr, [1891] 1 Q. B. 98 ; 60 L. J. Q. B. 268 ; 39 W. R. 394 ... 311 Hewlett y. London County Council, 72 J. P. 136 402 Hibbert r. Martin. 1 Camp. 538 201 Hickman v. Upsall, 4 C. D. 144; 46 L. J. Ch. 245; 35'l. T. 919 : 25 W. r' T.. ,^^^;--., 189,190 Hicks v. Sallitt, 3 D. M. & G. 782 ; 23 L. J. Ch. 571 187, 188, 189 Higginbotham v. Hawkins, 7 Ch. 676; 41 L. J. Oh. 828; 27 L. T. 328- 2(» ' ^^•l^^-!^55 ' (j^ ^7 Higgius c. Scott, 2 B. & Ad. 413 ; 9 L. J. O. S. K. B. 262 ... 909 Hill r. Stawell, 2 Ir. L. R. 302 ; 2 Jebb & S. 389 :!29 r. Walker, 4 K. & J. 166 '. '" 212 Hilton V. Woods, 4 Eq. 432; .36 L. J. Ch. 941 ; 16 L. T. 736; 15 W. R llo.V 300 Hiuchcliffe y. Sliarp, 77 L. T. 714 2'>4 Hindrnarsli, l{e. 1 Dr. & Sm. 129; 1 L. T. 475; 8 W. R. 203 ... ... 24G, 278 Ilind.son /•. Asliby, [1896] 2 Cli. 1 ; 65 L. J. Ch. 515; 75 L. T. 327; 45 W. R. ' " 2.J2; 60 J. 1'. 484 10 Iliort r. Bott. [.. It. 9 Ex. 86; 43 L. J. Ex. 81 ; 30 L. T. 25; 22'w. ll'lil '". •>'2 ilobbs. Re, ilobbs V. Wade, 36 C. D. .553; 57 L. J. Ch. 184; .58 L. '\\ [)■ :;(; ^\Mi-445 :;0. 11,; xxxii TABLE OF CASES. PAGE Hobson r. Bums, 13 L. IMr. 286 333 Hodirens r. Graham. Ale. & Xap. 49 351 Hodires V. Croydon Canal Co., 3 Beav. SG 178 Hodgson r. Hooper. 3 E. & E. 149 ; 29 L. J. Q. B. 222 ; 3 L. T. 149 ; 8 W. E. 637; tj Jur. N. S. 911 ... 1"1 r. Williamson, U C. D. 87 ; 42 L. T. 676 ; 28 W. E. 944 Hodsden r. HKrridcre.2 Wms. Samid. 60 ; 1 Lev. 273: 1 Sid. 413 5, l97, 2U(t, 2i»* Ho^aii V. Hand. 14 Moo. P. C. 310 ; 4 L. T. 565 : 9 W. E. 673 99, 100 Horford V. Acton Dist. Council, [1898] 2 Ch. 240 ; 67 L. J. Ch. 636: 78 L. T. S29 388 Holl r. Hadley. 2 A. .^-E. 758; 4L. J. K. B. 126 231 Holland /•. Clarke. 1 Y.&C.C.C. 151 329 - r. Xorthwich Higliwav Board, 34 L. T. 137 ; 40 J. P. 517 392 Hollingshead, n>\ Hollingsliead r. Webster, 37 C. D. 651 ; 57 L. J. Ch. 400 ; 58 L. T. 758 ; 30 W. R. 060 386 Hollins r. Fowler, L. E. 7 H. L. 757 ; 44 L. J. Q. B. 169 ; 33 L. T. 73 ... 222 HoUis r. Paluier. 2 Bing. N. C. 713 ; 3 Scott. 265 ; 5 L. J. C. P. 264 ... 4, 326 Holme '•. Green. 1 Stark. 488 ... 354.375,382 Holmes '". KerrLson. 2 Taunt. 323 ... ■-. 218,222 /•. Maekrell. 3 C. B. N. S. 789 34.3,346 r. Smith, 8 Ir. C. L. E. 424 346 r. Wilson. 10 A. & E. .503 201 Homan r. Andrews, 1 Ir. Ch. E. 100 337.358,360,366 Homfray v. Scroope. 13 Q. B. 509; 18 L. J. Q. B. 13S 207 Honevwood r. Houeywood, 18 Eq. 306; 43 L. J. Ch. 652; 30 L. T. 671: 22 W. E.749 67 Hood v. Eastou, 2 Giif. 092 ; 4 W. E. 575, 786 ; 2 Jur. X. S. 729, 917 188 Hooper r. Stephens, 4 A. &. E. 71 377 H(.pkin8 r. Crowe, 4 A. & E. 774 394 Hopkinson /•. Chamberlain. [1908] 1 Ch. 853 ; 77 L. J. Ch. 567 ; 98 L. T. 835 118 Horn 1-. Thornborough, 3 Ex. 846 393,394 Hornsey Local Board r. Monarch Building Societv. 24 Q. B. D. 1 ; 59 L. J. Q.B 105: 01L.T.S07; 38W.E.85; 54J.P.391 ... 1.59,160,101,171,416 Hounsell r. Dunning, [1902] 1 Ch. 512 ; 71 L. J. Ch. 259 ; 80 L. T. 382 ... 115 Hovenden r. Auneslev, 2 Sch. & Lef. 697 69.79,251,273,301 How V. Earl of Winterton, [1896] 2 Ch. 626; 05 L. J. Ch. 832 ; 75 L. T. 40; 45W. E.103 283.284,285 Howard *•. Fanshawe, [1895] 2 Ch. 581 ; 64 L. J. Ch. 600 ; 73 L. T. 77 : 43 W. E. 645 177 H.-wcutt r. Bouser, 3Ex. 491; 18L. J. Ex. 262 330,333 Howlett ('. Lambert, 2 Ir. Eq. E. 254 207 H..well c. YouDff, 5 B. & C. 259 : 4 L. J. O. S. K. B. 160 202, 247 Howitt '•. Earl of Harrington, [1893] 2 Ch. 497; 62 L. J. Ch. 571 ; 68 L. T. 703; 41 W. R. 664 23,24,95 Howlin f. Sheppard, Ir. E. 6 Eq. 38; seeibid. p. 497 320 Huber r. Steiner, 2 Bing. N. C. 202 ; 2 Scott, 304 214, 295 Hudson r. Fernvhough, 61 L. T. 722 ; C. A. 34 Sol. Journ. 228 309 Ha-gins r . Coates, 5 Q. B. 432 ; 13 L. J. Q. B. 46 ; 8 Jur. 334 239 r. Wadv, 15 M. & W. 357 394 Hughes r. Buckland. 15 :\r. & W. 346 ... 392,394 . . ,• Coles, 27 C. D. 231 ; 53 L. J. Ch. 1047 ; 51 L. T. 226 ; 33 W. E. 27 163, 178 r Kellv, 3 Dr. & War. 482 ; 5 Ir. Eq. E. 286 ; 2 Con. & Law. 223 156, 175 ,-. paraiuore, 7 D. 31. & G. 229 ; 24 L. J. Ch. 681 ; 3 W. E. 388 ; 1 Jur. N. S. 1101 347 Twisden, 55 L. J. Ch. 481 ; 54 L. T. 570 ; 34 W. E. 498 ... 247, 298 r. Williams. 3 Mac. & G. 083 ; 16 Jur. 415 179 Hu^-ill r. Wilkinson. 38 C. D. 480 ; 57 L. J. Ch. 1019 ; 58 L. T. 880 ; 36 W. E. °633 53,87,160 Hull V. London Countv Council, [1901] 1 Q. B. 580 ; 70 L. J. Q. B. 364 ; 84 L. T. 160; 49 W.E. 396; 65 J. P. 309 416 Humble r. Humble. 25 Bear. 535 ; 3 Jur. X. S. 1289 63, 155, 316 Hume r. Somerton, 25 Q. B. D. 239; 59 L. J. Q. B. 420; 62 L. T. 828; 38 W. E. 748 ; 55 J. P. 38 311 Humfrey r. Gerv, 7 C. B. 507 175 TABLE OF CASES. xxxiii Humphreys r. Joues, 14 M. & W. 1 ; 14 L. J. Ex. 254 ; 9 Jur. :^33 352 Humphrisa I'. Worwood, (J4 L. J. Q. B. 437 390 Hunt r. Bateman, ] Ir. Eq. E. oGO 162 r. Burn, 2 Salk. 422 C 116 o^f.. ' f«- ons, 1 H. & N. 459; 26 L. J. Ex. 1 ; 5 W. E. 91 ; 2 Jur. X. S. ' ■ ■' :■:■' 1^49 1,301 f. Hunter, Ir. E. 3 C. L. 138 ... 250 V. Nockolds, 1 Mac. & G. 640; 19 L. J. Ch. 177 ; 14 Jur. 256 ... 156, 165, 181, 184, 316* Huntley r, Sanderson, 1 Cr. & Mac. 467 ; 2 L. J. Ex. 204 934 Hurdle *-. Warinir, L. E. 9 C. P. 435 : 43 L. J. C. P. 209 ; 30 L. T. 329 • 22 W. E. 735..r ' 405 Hurst v. Parker, 1 B. & A. 92 4 Hutchins r. O'Sullivan, 11 Ir. Eq. E. 443 313 Hyatt, Re, 38 C. D. 609; 57 L. J. Ch. 777 ; 59 L. T. 297 ... '.'.'. ... 229 Hyde v. Dallaway, 2 Hare, 528 90 V. Johnson, 2 Bing. N. C. 776 ; 3 Scott, 289 ; 5 L. J. C. P. 291 ... ... 328 I. Imperial Gas Co. r. Loiidun Gas Co., 10 Ex. 39; 23 L. J. Ex. 303; 2 W. E. 527; 18 Jur. 497 301 Incorporated Society r. Eichards, 1 Dr. & War. 258 ; 4 Ir. Eq. E. 177 ; 1 Con. & Law. 58 117.331,333,334 Ingle V. Eichards, 28 Beav. 366 ; 8 W. E. 697; 6 Jur. N. S. 1178 ... . •:>07 Inglis I'. Haigh, 8 M. & W. 769 ; 10 L. J. Ex. 406 ; 5 Jur. 704 214 Ingram r. Little, C. & E. 186 344 Ireland V. Bircham, 2 Scott, 207 203 Irish Laud Commission r. Davies, 27 L. E. Ir. 334 317,318 v. Grant, 10 App. Cas. 14 ; 52 L. T. 228 ; 33 "\V. E. 357 14,19,22,24,27 r. Junkin, 24 L. E. Ir. 40 15,46 V. Evan, [1900] 2 I. E. 565 46, 116 y. White, [1896] 2 L E. 410 48 Irving r. Veitch, 3 3L & W. 90 ; 7 L. J. Ex. 25 209 244 i'. Wilson, 4 T. E. 485 395 Irwin's Estate. i?e, [1907] 1 L E. .357 359,362 Iven V. Elwes, 3 Drew. 25 ; 24 L. J. Ch. 249 ; 3 W. E. 119 ; 1 Jur. N. S. G ... 195, 209 J. Jack i;. Walsh, 4 Ir. L. E. 254 30,116 Jackson i\ M'Master, 28 L. E. Ir. ] 76 120 v. Ogg, Johns. 397 ; 7 W. E. 730 ; 5 Jur. N. S. 976 ... 221, 231, 237, 379 r. Woolley. 8 E. & B. 778 ; 27 L. J. Q. B. 448 ; 6 W. E. 686 ; 4 Jur. N. S. 656 382 Jacobs V. Eevell, [1900] 2 Ch. 858 ; 83 L. T. 629 ; 49 W. E. 109 lis Jacomb v. Dodgson. 3 B. & S. 461 : 32 L. J. M. ('. 113 ; 7 L. T. 674 : 11 W. E. 308 ; 9 Jur. N. S. 848 ; 27 J. P. 548 414 Jacquet t'. Jacquet, 27 Beav. 332 161 James 1). Holmes. 31 L. J. Ch. 567; 10 W. IL 634 275 r. Eydtr, 4 M. & W. 32 345 V. Salter, 2 Bing. N. C. 506 ; 3 ibid. 544 ; 4 Scott, 168 ; 6 L. J. C. P. 171; 1 Jur. N. S. 1.35 15,24,27,49.55 Jarman r. Hale, [1899] 1 Q. B. 994 ; 68 L, J. Q. B. 681 99, 102 Jay I'. Jolmstoiic, [1893] 1 Q. B. 189; 62 L. J. Q. B. 128 ; 68 L. T. 129 ; 41 W. E. 161 165,167,179 Jayne r. Hughes, 10 Ex. 430 ; 24 L. J. Ex. 115 ; 3 W. E. 65 ... 331, 332, :'.33 •loiiks c. Viscount Clifdeu, [1897] 1 Ch. 694; 66 L. J. Ch. 338; 76 L. T. 382; 45W. E. 424 228 Jennons, lie, Willis v. Earl Howe, 50 L. J. (Jli. 4 ; 29 W If. 70 ... 169, 307 Jennei-y. Akerman, 10 L. T. 328; 10 Jur. N. S. 465 276 Jeremiah Ambler & Sons, Ltd. r. Bradford Corporation. ISee Ambler (Jeremiah ) & SnriB. I,td. '•. Bradford Corporation. T.L.A. /: XXXlV TABLE OF CASES. Jew V. Wood, Cr. & Ph. 185 ; 3 Beav. 579 ; 10 L. J. Ch. 261 : 5 Jur. 954 ... 126 Johanuesberg, The, [1907] P. 65 ; 76 L. J. P. 67; 96 L. T. 46i ... 396 397 Johns V. James, 8 C. D. 744 ; 47 L. J. Ch. 853 ; 39 L. T. 54 ; 26 W. E. 821 . ' 279 Johnson, Me, Sly v. Blake, 29 C. D. 964 ; 52 L. T. 682 ; 33 W. E. 502 ..'. 169, 170, 172, 312, 357 ?'. Bell, 6 Ir. C. L. E. 526 167 V. Lowry, [1900]'l I. E. 316 ',[[ iqq Johnston r. Howieson, 13 Jr. Eq. E. 463 297 ?'. Smith, [1896] 2 I. E. 82 *.'.' ."'." 330 333 Jolliffe V. Wallasey Local Board, L. E. 9 C. P. 62 ; 43 L. J. C P 41 ■ 29 L T ' 582;38J.P.40 '...■ '... " " 399 Jolly, Be, Gathercole v. Norfolk, [1900] 2 Ch. 616 ; 69 L. J. Ch. 661 -SS L t' 118;48W.E.657 28:104,178 Jones V. Hxggins, 2 Eq. 538 ; 35 L. J. Ch. 403 ; 14 L. T. 126 ; 14 W. E. 448 260 V. Hughes, 5 Ex. 104 ; 19 L. J. Ex. 200 380 r. Jones, 2 Cr. & J. 601 "" 175 r. Pope, 1 Saund. 37; 1 Lev. 191; 1 Sid. 305 ... .' 107 r. Ehind, 17 W. E. 1091 3J ?'. Eyder, 4 M. & W. 32 ; 7 L. J. Ex. 216 '.'. ] 343 ?'. Simes, 43 C. D. 607 ; 59 L. J. Ch, 351 ; 62 L. T. 447 '. '" 228 v. Turberville, 2 Ves. Jun, 111 ' 262 V. Withers, 74 L. T. 572 23 24 28 178 Jortin V. S. E. Ey. Co., 6 D. M. & G. 270 ; 24 L. j. Ch." 343 ;"'3 W E 190 • ' I Jur. N. S. 433 ' 33J Jumpsen I'. Pitchers, 13 Sim. 327 5.7 Jupp y. Powell, C. & E. 349 .'.'. ..." "' ■■ 35Q K. Kaye, Be, 1 D. & E. 436 .(.a Kcaye, i?e, L-. E. 3 Eq. 659 ... . o^ Keech v. Hall, 1 Doug. 21 ^- Keefe i;. Kirby, 6 Ir. C. L. E. 591 .'.'. ..', l^o Keene t'. Deardon, 8 East, 248 r-,. Kelly t'. Bodkin, 3 Ir. Eq. E. 390 ... ..'.' ..'. 170 V. Westbrook, 1 Ves. S. 278 24-^ Kempe v. Gibbon, 9 Q. B. 609; 12 ibid. 662 ; 16 L.'j. Q." B. 120 •' 17 ibid '^9*8 "■ "* II Jur. 299; 12 ibid. 697 ' •- > Kendall v. Hamilton, 4 App. Cas. 504; 48 L. J. C.' P. 705 ; 41* L. T."418; 28 '^ W. E. 97 ... ... ... ... ... ,.. . ' 29« Kennedy v. De Trafford, [1897] A. C. 180 ; 66 L. J. Ch. 413 ; 76 L. t! 427 ; 45 W. E. 671 ......... ' npf* ^•- Thomas. [1894] 2 Q. B. 759 ; 63 L. J.'q. B."761 -"il L "t 144 • 42W. E. 641 9 IS 910 V. Whalev, 12 Jr. L. E. 54 ... Ifir r. Woods, Ir. E. 1 C. L. 76 ; 2 C. L. 436 110 Kenuet & Avon Canal Co. v. Gt. West. Ry. Co., 7 Q. B 824 i.4 L J O B 325; 9 Jur. 788 , . . h,- • Kennett v. Milbank, 8 Binjj-. 38; 1 L. J. C. P 8 oV.j Kenrick, i?e, [1907] 1 L E. 480 ' 237 Kensington Station Act, Be, 20 Eq. 197; 32 L. T. 183; "23 W E 463 249 Kent V. Jackson, 14 Beav. 367 ; affirmed, 2 D. M. & G. 49 ". ' "■ 953 Kent County Council v. Folkestone Corporation, [19051 1 K B "620 •74 T, 'i' KB. 353; 92L.T.309; 53W.R.371; 69 J. P. 125 ; 3 L. G. E. 438 ' . ! 230, Kernaghan t;. M'Nallv, 12 Ir. Ch. E. 89 v?q'/qn Kerr v. Corporation of Preston, 6 C. D. 463; 46 L. J. Ch.*409 •"25 W E 265 " 417 Keyse v. Powell, 2 E. & B. 132 ; 22 L. J. Q. B. 305 ; 17 Jur. io52 ' ' 45 W 'ij^^'''*^^°™®' fl^'^^3 1 Oh. 219; 64 L. J. Ch. 184; 71 L. T."755; 43 King V. Hoare, 13 M. & W. 494 ; 14 L. J. Ex. 29.' oq? V. Walker, 1 W. Bl. 286 ... . "^^^ Kingdomt;. Nottle, IM. &S. 355; 4M. &S..53 ..." 9nq Kingsmill t). Millard, 11 Ex. 313 i"o"8 109 TABLE OF CASES. xxxv Kintrstou's (Earl of) Estate, 7i'e, I. K. 3 Eq. 485 369 Kiiisey r. Hey ward, 1 Ld. Kaym. 432 ... 200 Kinsman i-. Eouse, 17 C. D. 104 ; 50 L. J. Ch, 48U ; 44 L. T. 51)7 ; 29 W. 11. ,..627.. ' ... 90,290 Kirby v. bimnson, 10 Ex. 358 ; 23 L. J. M. C. 165 ... 895 Kirk r. Todd. 21 C. D. 484 ; 52 L. J. Ch. 224 ; 47 L. T. 076; 31 W. R 69 "" '>28 Kirkland r. Peatfield, [1903] 1 K. B. 756; 72 L. J. K. B. 355; 88 L. T. 472 • 51W.E.044 155,160 Kirkwood v. Lloyd, 12 Ir. Eq. E. 585 ; see 11 ibid. 561 1(J7. 3G1, 366 369 -^— r. Thompson, 2 H. & M. 392 ; affirmed 2 D. J. & S. 613 '72 Kirwan v. Kennedy, Ir. E. 3 Eq. 472 I55 kjq 261 Knight V. Bowyer, 2 Do. G. & J. 421 ; 27 L. J. Ch.. 520 ; 6 W. R. 565 ; 4 Jur. ' N. S. 569 ^3 r. Knight, 3 Beav. 148 ; 9 L. J. Ch. 354; 4 Jur. 839 ; see in H. L , U CI. & F. 513 ; 8 Jur. 923 ... 72 Knowles I'. Bartlett. 5ee Tuustall c. Bartlctt Knox r. Gye, L. R. 5 H. L. 656 ; 42 L. J. Ch. 234 ... . 188 'n5 240 '^r^ r. Kellv, 6 Ir. Eq. E. 279 "" ' ' l\fi Kong Magnus, The, [1891] P. 223 ; 63 L. T. 715 ; 60 L. T. 231 " '..'. ..'. 216 Kyne c. Dignan. /See Harrison v. Duignan Labalmondiere v. Addison, 1 E. & E. 41 ; 28 L. J. M. C. 25 415 Lacey, Be, Howard v. Lightfoot, [1907] 1 Ch. 330 ; 76 L. J. Ch. 316 -'96 L T ^ ^06 213, 266, 364, 368, 370, 371 , 372, 373,' 374, 386 Lacons v. Wormall, [1907] 2 K. B. 350 ; 76 L. J. K. B. 914- 97 L T 379 •?29 Lacy, Be, [1899] 2 Ch. 149 ; 68 L. J. Ch. 488 ; 80 L. T. 706 ; 47 W. E. 664 '.'.'. "74, Lade v. Trill, 11 L. J. Ch. 102; 6 Jur. 272 ' ' ' ' -^^ Lafond v. Euddock, 13 C. B. 813 ; 22 L. J. C. P. 217; i \V. R*371 ',"n Jur! 624 ... ... ... ... ... ... ... . .. 2 293 Lake's Trusts, Be, 63 L. T. 416 ..'. '..[ 53, l6o'**167, 172' 243 Lake 1;. Hayes, 1 Atk. 281 .>Qg Lambs v. Fames, 6 Ch. 597; 40 L. J. Ch. 447; 23 L. T.'i75 ; 19 W E. 659 "" ^72 Lambert's Estate, i?e, [1906] 1 L E. 220 [ 181 Lambert r. Browne, Ir. E. 5 0. L. 218 ... . ' 30 f. Taylor, 4B. &C. 138; 3L. J.O. S.K.B. I60" '.'.'. ] 2'>4 Lancashire Wagon Co. r. Fitzhugh, 6 H. & N. 502 ', '" 2^2 Lancaster v. Evors, 10 Beav. 154 ; 16 L. J. Ch. 8 .,, ,[[ 320 ?7. Moss, 15 T. L. E. 476 '\ ."'.' 309 Lancaster District Council v. Fisher, [1907] 1 K.B. 516; 76 L. J. K B 1070- 97L. T. 500; 71 J. P. 401; 5L. G. E. 1223 ' ' ' 030 Lands Allotment Co., Be, [1894] 1 Ch. 616 ; 63 L. J. Ch. 291 ; 70 l"t 286- 42L. E. 404 • • > ^g^ Lane, Be, Ex parte Gaze, 23 Q. B. D. 74 ; 58 L. J.'q B."373 ; 61 L. t!'64 ; 37 W. E. 671 350 ••77 Langrish v. Watts, [1903] 1 K. B. 636 ; 72 L. J. K. B.' 435; 88 L. T."443- 51 ' ' AV. E. 503 '347351 Langton r. Langton, 18 Jur. 928 ''. ,', ,,', '" ' ' 49 Latouche t'. O'Brien, 10 Ir. Eq. R. 113 TiO 366 Law r. Bagwell, 4 Dr. & War. 398 ..." ..'. ,".'.' 69 70 ».'. Harwood, 1 Cro. Car. 140 '" 236 Lawder, /("e, 6 Ir. Cli. E. 587 .'"* ,','.' ,','." *'* 313 Lawrance v. Lord Norreys, 15 App. Cas. 210 ; 59'l. J. Ch. 681;" 62 L.T. To'J* 38W. E 753; 54J. P.708 302,303,305 Laws V. Rand, 27 L. J. C. P. 76 220 Lawton v. Ford, 2 Eq. 97 ; 14 L. T. 320 ; 14 AV. E. 575 '.'.'. '.". 162 Layburn r. Gridley, [1892]2 Ch. 53; 61 L. J. Ch. 352; 40W.'E. 474... 18 115 L-a r. Facey, 19 Q. B. D. 352; 56 L. J. Q. B. HWO ; 58 L. T. 32; 35 W. E. 721 : 51 J. P. 756 391, 397 Leahy f. De.Aloleyns, [1896] 1 1. R. 206 266 W '{72 Lechmerc r. Fletclier, 1 Cr. & M. 623 ; 2 L. J. Ex. 219 •;->6' 344* 3-)0 Lee V. Sankey, 15 Eq. 204; 27 L. T. 809; 21 W. R. 286 - - ' ^^^ XXXVl TABLE OF CASES. PAGE Lee V. Wilmot, 4 H. & C. 460 ; L. E. 1 Ex. 3G4 ; 35 L. J. Ex. 175; 14 L. T G-'T • 14 W. E. 993 ; 12 Jur. N. S. 702 341,350 Leeds, Duke of, r. Earl Amherst, 2 Ph. 117; 15 L..T. Ch. 351; lOJur. 95G ... ' 66, 67, 253 Leeds Estate, etc., Co. v. Shej^herd, 36 C. D. 787; 57 L. J. Ch. 46; 57 L T 684 ; 36 W. E. 322 278 Leeds, Mayor of, r. Eobshaw, 51 J. P. 441 415 Leete r. Hart, L. E. 3 C. P. 322; 37 L. J. C. P. 157; 18 L. T. 28 Lidiard & Jackson & Broadlev's Contract, Bp, 42 C. D. 254 • 58 L J Ch 785 • 61 L. T. 322 ; 37 W. E. 793 ' ,.'. ^4 Lidster r. Borrow, 9 A. & E. (J54 '" 394 Life Association of Scotland r. Siddall, 3 D. F. & J. 58; 4 L. T 311 -9 AV e" 541 ; 7 Jur. N. S. 785 73,256,261,274 Lmdsay 7-. 3Iacgnire, [1899] 2 L E. 554 37.-, Lindsay Petroleum Co. r. Kurd, L. E. 5 P. C. 221 ; 22 W. E. 492 '257 260 '^71 Linsell r. Bonsor, 2 Bing. N. C. 241 ; 2 Scott, 399 ; 5 L. J. C. P. 40 '345,'3"48, 377 380 Lisburne, Earl of, v. Davies, L. E. 1 C. P. 259; .35 L. J. C.P. 193 • 13 L T ' 795 ; 14 AV. E. 333 ; 12 Jur. N. S. 340 ' ... * iQg Lister r. Pickford, 34 Beav. 576; 34 L. J. Ch. 582; 12 L. T. 587- 13 AV pi' 827; 11 Jur. N. S. 649 ' . ' 82 83 Listej & Co. V. Stubbs, 45 C. D. 1 ; 59 L. J. Ch. 570 ; 63 L. T. 75 ; 38 AV. E. ' 548 ... ... ... ... ... ___ ... ._. __ 299 Littleboy r. AA'right, 1 Lev. 69 '. 236 Littledale r. Liverpool College, [19001 1 i5h. 19; 69 L. J. Oh.'87; 81 L t' 564; 48AA\E. 177 ... oq Littler, 7?e. 10 Ir. Eq. E. 275 '.'.'. ".'*. *.'.'. 349 Lloyd, He. Lloyd r. Lloyd, [1903] 1 Cli. 385; 72"l. J. Ch. 78;"87 L.T. 541 • 51 AV. E. 177 ' -ijjq r. 3Iaund, 2 T. E. 760 " '.;; ■.".■. 345 5-J'Vigney, 6Bing.489; 8L. J. O. S. C. P. 161 ... '.'.'. '..'. .['. 399 101 188 Llynvi Coal Co. r. Brogden,'ll Eq. 188; 4o'l.'j. Ch.'k'o; 23'l. T.'siS; 19 AA.E. 196... ... ... __ _.. _^ of)A Lobb V. Stanley, 5 Q. B. 574 ; 13 L.' J. Q. B. IIt/s JurV462 343 Locke r. Matthews, 13 C. B. N. S. 753; 32 L. J. C. P. 98 • 7 L T 8'>4 ■ U AV. E. 343 ; 9 Jur. N. S. 875 Lockey r. Lockey, Prcc. Chan. 518 ^i,^ Locking v. Parker, 8 Ch. 30; 42 L. J. Ch. 257 ; 27 L. T. 635';"21 Av'.E. 113 72, London & Birmingham, etc., Eailway Co., Be, Ex parte Higgins, 2 Jur. JN. h. 17h ... ... ... ... ... gjQ London, Chatham & Dover Eaihvay Co. r. Bell, 47 L T 413 255 Loudon County Council r. Cross, 66 L. T. 731 416 London & Midland Bank r. Mitchell, [1899] 2 Cli. 161 ■* 47 Av"e 60^"' i.58 '•'38 London & N. AA'. Eailway Co. r. Buckmaster, L. E. 10 Q. B. 444 • 44 L j ' " M. C. 180 ; 33 L. T. 329; 24 AV. E. 16 ... , ^* 1^. 0. Long V. GrevUle, 3 B. & C. 10 ; 2 L. J. O. S. K B 205 c.74 Longuet r. Scawen, 1. A'es. S. 402 on Lookup r. Frederick, 4 Burr. 2018 ... ... 240 Lord V. Lord, 3 Jur. N. S. 485 ... 17I TABLE OF CASES. xxxvii Love^-Mge, Be, [1902] 2 Ch. 859; 71 L. J. Ch. SU.j ; 87 L. T. 294; 51 W. 11. ''^'"' Low 7,V, Bland v. Low,'[1894] 1 Ch!'l47;'63 L. J.' Ch. 00; 7o"l. T. *57 "■ -m LowMoor Co. r. Stanley Coal Co., 34 L. T. 186 "* 4^ Lowe 7/. Fox. 15 Q. B. D. G67 ; 54 L. J. Q. B. ogI ; 53 L. T. 88G ; 34 W. E." 144; oOJ.P. 244 ... ... ,., oaa .5q.> Lowes' Settlement, Ji'e, 30 Bcav. 95 .*.'.' .'.'.' -us Lowndes c. Garnett, &c., Gold Mining Co., 33 L. J. Ch.'418; lo L.' T. 229"; 243 12 W. R. 572 ... r. Norton, 6 C. D. 139 ; 46 L. J. 'c'b. G1.3 ;" 25 w'. R. 82G 342 Lowis r. Rumney, 4 Eq. 451 .^V, Lucasr. Dennison, 13 Sim. 584; 7 Jur. 1122 o-:>\ Ladbrook v. Ludbrook, [1901] 2 K. B. 96 ; 70 L.' J. K. B. 552';" 's4 L."t 485* 49 AN . R. 465 ' ' '.^ , .^ Ludlam, i?e, Ludlam v. Ludlam, 63 L. T. 330 \ n Lusher r. Hassard. 20 T. L. R. 563... .,-7 Lyall r. Fluker, W. X. (1873), p. 208 '.'. t^i Lyell r. Ke^medy, 14 App. Cas. 437; 59 L. J. Q. B. 2G8; G2L. f.'"77; 38 V\ , 1\. oOo ,,, ,,, ^^^ lfi^l*'9'~*»liQO— o Lyles V. Southend Corporation, [196i)'] 2 K."b, 1;"'74 L.'j. K. B.'484;''92 l'. T " I^3™^^'^Snaitbi'[1899i'l Q."b. 486 ,* 68 KJ. Q.""b. 275; 80 L. T. Sl-'T^'^^^ Lyon V. Reed, 13 M. &' W. 285 ; 13 "l. J. Ex. 377';" "s Jun" "762 .";.■ .'.*.* .■;; \l] M. S 'L''- ^^^^^'' h ^- - ^^- ^^3 = 2^ I^- J- Ex. 70 ; 16 L. T. 26 377 M-Ardle v. Gaushrau, [1903] 1 I. R. 106 07- McAidiffe !-. Fitzsimmous, 2G L. R. L- 29 o],* McCallumr^SIcCallum, [1901] 1 Ch. 143; 70 l!' J. Ch". 20g";""83 L.T 717 • t:J >V . R. 129 ... ... '01. M'Carthy r. Daunt, 11 Ir. Eq. R. 29 ?'.f M'Combie r. Davies, 6 East, 538 ... . .„o MacCormack t-. Courtney, [1895] 2 L R. 97 "o iVo 0-7 M'Clure & Garrett's Contract, Me. [1899] 1 I R ■)25 " ' n r o-l M'Culloch ..Dawes, 9 D. & R. 40;' 5 L.^J. O. S. KB. 'o'^ Z .-" "'' Ig Macdonald,_^e, Dick ,^ Eraser, [1897] 2 Ch. 181 ; GG L. J. Ch. 630 .- 76 L. T M«Donnel r. White, 11 H. L. C. 570 006, oat, 6b6 JI'Donnell r. Broderick, [1896] 2 L R. 1.36 ' 'inv oaq ^^ Fitzgerald, [1897] 1 L R. 55G Ts? —7 ^^^. M'Kinty, 10 Jr. L. R. 514 ... 1 s"i ^i"4Q^n McGuffie r. Burleigh, 78 L. T -'64 lb, 19, o4, 43, oO MeHenry,^^e,42 WR^491; C. A., "[1894] "3 Ch:"290 ; "63 L. "j. Ch.'m; li ^^"Ifw^* R^SS'^^-' '■• ^°"^^' tl906] 1 Ch:'25 ; 75 L. J.'ch. 47 i'gs lVt. 694 ," ^'^ ^''^^r'^:^^it^^ ^-^^^-^ '^ ^- ^'^^ -'53 l. j: ''' Maddockr. Mallet, 12Ir.C.L.R. 173, 193" ■.". ono fTr v^^^-'T-'- Attorney-General, G H. L. C. 189'; 26 L. J. cii. 620^ 466' •>? w' ?■ r 0.?= ^"- -^ ^ "^I'^'- ^'^'- ^^--^ •■ ^^ I- J- <^h. 579; 40 L. T. Magdalene Steam Navigation Co. ^^"3rartin■, 2 i:.""& E. i"."! '■■ ' ' ^''' oflG Magee r. Ha&tings, 28 L. R. Ir. 288 oV, Magherafelt Union r. Gribben, 24 L R Ir"5-'0 Vu- Maguire and M'Clelland's Contract, 7^e, [1907"] l""l". R ;i93 •'■,; Mahm r. Jveighley, 2 Ves. 333 ... -I, Malone ?•. O'Connor, 9 Jr. Ch. R. 45;j 1.*; -Mamniotli (J-V M.uiby '■. Jiewicke, 3K. & J..:542 . ■•04 ",'.7 . Manby, 3 C. D. 101 ; 35 L. T. 307 ; 21 W. i; "r,;.;* ' ' ••i', xxxviii TABLE OF CASES. PAGE Manchester, Sheffield, & Line. Kv. v. Doncaster Union, [1897] 1 Q. B. 117; tiO L. J. Q. B. 75 ; 75 L. T. 472 ; 45 W. E. 82 ; GO J. P. 819 233 Maniram r. Seth Eupohand, 22 T. L. E. G19 342,347 Manning r. Phelps, 10 Ex. 59; 24 L. J. Ex. G2 28. 156. 184 Mansell. ii'e, G(; L. T. 245 319 Mara v. Brown, [1895] 2 Ch. G9 ; G4 L. J. Ch. 594 ; 72 L. T. 765 ... 275, 28G IMareh v. Eussell. 3 My. & Cr. 31 ; G L. J. Ch. 3G3 ; 1 Jur. 588 261, 267 IMargetts, Re, [1890] 2 Ch. 263 ; 05 L. J. Ch. 479 ; 74 L. T. 309 ; 44 W. E. 462 210 ^— V. Bays, 4 A. & E. 489 ; 5 L. J. K. B. 105 4 Marker c. Marker. 9 Hare, 1 ; 20 L. J. Ch. 246 ; 15 Jur. 663 260 Markcy r. Dowdell, 2 L-. C. L. E. 117 309 r. Tdlworth Joint Hospital Board. [1900] 2 Q. B. 454 ; 69 L. J. Q. B. 738 ; S3 L. T. 28 ; 64 J. P. G47 400 Markwick v. Hardingliam, 15 C. D. 339 ; 43 L. T. 647 ; 29 W. E. 361 31, 329 Marr v. Greenwich Board of Works. 44 J. P. 424 414 Marrecco r. Eichardson, [1908] 2 K. B. 584 : 77 L. J. K. B. 859 378 Marsden, R>., Bowden r. Lavland, 26 C. D. 783 ; 54 L. J. Ch. 640 ; 51 L. T. 417: 33 W. E. 28... " 229 Marshall i-. Eobertson, 50 Sol. Jouni. 75 137 V. Smitli, 5 Giff. 37 ; 34 L. J. Ch. 189 ; 11 L. T. 443 ; 13 W. E. 198 ; 10 Jur. N. S. 1174 9 V. Taylor, [1895] 1 Ch. 641 ; 64 L. J. Q. B. 416; 72 L. T. 670 ... 43 Marshfield, Be, 3Iarsbfield r. Hutchings, 34 C. D. 721 ; 56 L. J. Ch. 599 ; 56 L. T. G94 ; 35 W. E. 491 1S2 Martin ^•. Geoghugan, 13 L. E. Ir. 403 348 r. Kearney, 3G Ir. L. T. E. 117 ... 119 r. Knowles, 1 Nev. & Man. 421 ; 2 L. J. K. B. 100 349 Martindale r. Falkner, 2 C. B. 70G 248 ^lartinson r. Clowes, 21 C. D. 857 ; 51 L. J. Ch. 594 ; 46 L. T. 882 ; 30 W. E. 795 : App. 22 L. T. 706 ; 33 W. E. 555 266 Marys' Case. 9 Eep. 113a B . ... 202,204 Mason v. Broadbent, 33 Beav. 296 ; 9 L. T. 5G5 ; 12 W. E. 1118 182 Matheson r. Boss, 2 H. L. C. 286 345 Mathew /•. Brise. 14 Beav. 341 188.257,276 Mauusell r. Hedges, 2 L-. C. L. E. 88 351 Maxwell's Estate, ii'e, 28 L. E. Ir. 35G 144,145 Mecca, The, [1897] A. C. 286 : 6G L. J. P. 86 ; 76 L. T. 579 ; 45 W. E. 667 ... 376 Medlicott r. O'Donel, 1 Ball & B. 156 298 Megginson V. Harper, 2 Cr. & M. 322 ; 3 L. J. Ex. 50 381 Mehrtens r. Andrews, 3 Beav. 72 201 Mellersh v. Brown, 45 C. D. 225; 60 L. J. Ch. 43; 03 L. T. 189; 38 AV. E. 732 180,242.252 Melling v. Leak, 16 C. B. 652; 24 L. J. C. P. 187; 3 "W. E. 595 ; 1 Jur. N. S. 7.59 76,77.99 Mellish V. Brooks, 3 Beav. 22 ; 9 L. J. Ch. 362 ; 4 Jur. 739 178 Metropolitan Bank r. Heiron, 5 Ex. D. 319; 43 L. T. 676; 29 "W. E. 370 ... 299 Board of Works r. Anthony & Co., 54 L. J. M. C. 39 : 33 W. E. 166 ; 49J. P. 229 417 r. Lathey, 49 J. P. 245 410 Meverhoff r. Froehlich, 4 C. P. D. 03 ; 48 L. J. f. P. 43 ; 39 L. T. 620 ; 27 W. E. 258 341,343,352 Mieklethwaite v. Vavasour, 37 Sol. Journ. 386 312 IMidgley r. Midgley, [1893] 3 Ch. 282; 62 L. J. Ch. 905; 09 L. T. 241; 41 AV. E. 059 211 Jlidland Railway Co. v. Edmonton Union. [1895] A. C. 485 • 04 L J. Q B 710: 72 L. T. 811; 60 J. P. 68 ' 233 V. Eobinson. 15 Ajip. Cas. 19; 59 L. J. Ch. 442; 62 L. T. 194; 38 W. E. 577 18 *•. Within-ton Local Board, 11 Q. B. D. 788; 52 L. J. Q.B. 089; 49 L. T. 489; 47 J. P. 789 389 r. Wright. [1901] 1 Ch. 738 ; 70 L. J. Ch. 411 ; 84 L. T. 225: 49 W. E. 474 ... 18.41 INIilford Docks Co. v. Milford Haven Dist. Council, 65 J. P. 483 389 IMiller v. Dell, [1891] 1 Q. B. 408 ; GO L. J. Q. B. 404 ; 03 L. T. 693 ; 39 W. E.342 223 TABLE OF OASES. xxxix PACE Miller 1?. Miller, 8 Eq. 499 239 Millington I'. Holland, 18 W. R. 184 240 *'. Thompson, 3 Ir. Ch. E. 236 331 Mills V. Borthwick, 35 L. J. Ch. 31 ; 12 L. T. 600 ; 13 W. R. 707; 11 Jur. N. S. 558 87,361 V. Capel, 20 Eq. 692 ; 44 L. J. Ch. 674 ; 33 L. T. 158 65 V. Commissioners of New Forest, 18 C. B. 60 142 V. Fowkes, 5 Bing. N. C. 455 ; 7 Scott, 444 ; 8 L. J. C. P. 276 ; 3 Jur. 406 .... 376 Milnes, i?e, Milnes V. Sherwin, 53 L. T. 534 211 Miltown, Earl ot; (!. Goodman, Ir. R. 13 C. L. 27 54 Milward w. Earl of Thanet, 5 Ves. p. 720 n. 270 Mitchell's Claim, lie River Steamship Co., 6 Ch. 822; 25 L. T. 319; 19 W. R. 1130 341,348,349,352 Molloy V. Mutual Reserve Life Insurance Co., 94 L. T. 756 ... 260, 271, 300 Moloney y. O'Brien, 5 Ir. L. R. 577 325 Molony i). Molony, [1894] 2 L R. 1 277 Montague v. Perkins, 22 L. J. C. P. 187; 1 W. R. 437; 17 Jur. 557 218 Monckton r. Payne, [1899] 2 Q. B. 603 ; 68 L. J. Q. B. 951 ; 81 L. T. 204 ; 48 W. R. 44 197 Montague I'. Sandwich, 7 Mod. 99 223 Montgomery r. Southwell, 3 Dr. & War. 171 ; 2 Con. & Law. 263 ... 180, 316 Monypenny r. Bristow, 2 R. & M. 117; 1 L. J. Ch. 88 189 Moodie v. Bannister, 4 Drew. 432 ; 28 li. J. Ch. 881 ; 7 W. R. 278 ; 5 Jur. N. S. 402 211,330,343 Moore i;. Dohert.y, 5 Ir. L. R. 449 30 Moore v. Knight, [1891] 1 Ch. 547 ; 60 L. J. Ch. 271 ; 63 L. T. 831 ; 39 W. R. 312 285,299 V. Petchell, 22 Beav. 172 222 V. Shepherd, 10 Ex. 424; 24 L.J. Ex. 28 401 u. Strong, 1 Bing. N. C. 441 246 Morant V. Taylor, 1 Ex. D. 188 416 Morgan v. Morgan. 10 Eq. 99 ; 39 L. J. Ch. 493 ; 22 L. T. 595 ; 18 W. R. 744 64 ?;. Palmer, 2 B. & C. 729 395 V. Rowlands, L. R. 7 Q. B. 493; 41 L. J. Q. B. 187; 26 L. T. 855; 20 W. R. 720 341,377 Morley v. Morley, 5 D. M. & G. 610 ; 25 L. J. Ch. 1 ; 4 W. R. 75 ; 1 Jur. N. S. 1097 213 Morrell v. Firth, 3 M. & W. 402 ; 7 L. J. Ex. 172 ; 2 Jur. 619 345, 348 Morris -y. Morris, 6 W. R. 427 66 r. Kennedy, [1896] 2 L R. 247 203 r. Richards, 45 L. T. 210 218 Morrison's Estate, i?e, [1907] 1 L R. 15 318 Morrogh 11. Alleyne, Ir. R. 7 Eq. 487 '. 203 Morse 1-. Royal, 12 Ves. 355 250,264 Moses V. Macferlan, 2 Burr. 1005 188,239 Moss r. Gallimore, 1 Doug. 279 85 Moth V. Atwood, 5 Ves. 845 265 Mowbray iJ. Appleby, 80 L. T. 805 348 Mulcaire t'. Lane-Joynt, 32 L. E. Ir. 683 120 Municipal Land Co., Ltd. r. PoUington, 59 L. J. Ch. 734 ; G3 L. T. 238 ... 278 Murphy V. Murphy, 15 Ir. Ch. R. 205 32 y. O'Shea, 2 Jo. & Lat. 422 265 u. Sterne, 1 Dr. & Wal. 236 7 Murray u. East India Co., 5 B. & A. 204 3,51,205 V. M'Swincy, Ir. R. 9. C. L. 545 396 V. Watkins, 62 L. T. 796 288 Murrogh r. Powers, 5 Ir. L. R. 494 331 Musurus Bey v. Gadban, [1894] 2 Q. B. 3.52 ; 63 L. J. Q.B. 621 ; 71 L. T. 51 ; 42W. R. 545 206,295 Mutlow V. Biggs, 18 Eq. 246 ; 22 W. R. 469 ; C. A. I C. D. 385 ; 45 L. J. Ch. 282; 34 L. T. 273; 24 W. R. 401 272 Xl TABLE OF CASES. X. PAGE Nagle r. O'Shea, L-. R. 8 C. L. 224 124 Nash V. Hill, 1 F. & F. 198 346 r Hodgson. G D. M. & G. 474 ; 25 L. J. Ch. 186 ; 1 Jur. N. S. 946 376, 377 National Bank of Wales, lie, [1899] 2 Ch. G99 ; 81 L. T. 363. See Dovey v. Cory 283 National Telephone Co. v. Kingston-upon-Hull Corporation, 52 "W. E. 26 ; 68 J. P. 62 : 1 L. G. E. 777 389 Nazer v. Wade, 1 B. ct S. 728 ; 31 L. J. Q. B. 5 ; 5 L. T. 6U4 ; 8 Jur. N. S. 134 311 Nelson, Son & Hastings, Ik, 30 C. D. 1 ; 54 L. J. Ch. 998 248 Nepean r. Doe, 2 M. & W. 894 ; 7 L. J. Ex. 335 7 Netterville r. Power, 13 Ir. Jur. 123 24 Neve V. Holland, IS Q. B. 262 ; 21 L. J. Q. B. 289 ; 16 Jur. 9^3 380 New's Trustee r. Huntins-, [1897] 2 Q. B. 19 ; 66 L. J. Q. B. 554 : 76 L. T. 742 ; 45 W. E. 577: in H. L., Shai-p r. Jackson {q.v.) 280 Newbegin's Estate, Re, Eggleton v. Newbegin, 36 C. D. 477 ; 56 L. J. Ch. 907 ; 57 L. T. 390 ; 36 W. E. 69 236 Newbould r. Smith, 29 C. D. 882 ; 53 L. T. 137 ; 33 AV. E. 690 379 V. , (C. A.) 33 C. D. 127 ; 55 L. J. Ch. 788 ; 53 L. T. 194 ; o4 AV. E. 690 ; (H. L.) 14 App. Cas. 423 ; 61 L. T. 814 358, 367 Newton c. Ellis, 5 E. & B. 115; 24 L. J. Q. B. 337 ; 1 Jur. N. S. 850 ; 19 J. P. 805 390 Nicholls r. AVilsou, 11 M. & AAM06 248 Nichols V. Eegent's Canal Co.. 63 L. J. Q. B. 641 ; 71 L. T. 249, 836 195 Nisbet & Potts' Contract, Be, [1905] 1 Ch. 391 ; 74 L. J. Ch. 310 ; 92 L. T. 448 ; 53 AV. E. 297 ; (C.A.), [1906] 1 Ch. 386; 75 L. J. Ch. 238 ; 94 L. T. 297; 54AV. R. 286 80,117,118 Nixon's Estate . i?e, Ir. E. 9 Eq. 7 317,318 Nixon ^^ Darley, Ir. R. 2 C. L. 467 290,292 Norris I'. Smith. 10 A. & E. 188 396 Norton v. Ellam. 2 M. & AA". 461 ; 6 L. J. Ex. 121 ; 1 Jur. 43ci ... 220, 221, 244 North American Land and Timber Co. r. AVatkins. [1904] 1 Ch. 242; 73 L. J. Ch. 117; 89 L. T. 602; 52 AV. R. 360 243 Norton r. L. & N. W. Ey. Co.. 13 C. D. 268 ; 41 L. T. 429 ; 28 W. R. 173 41, 43 Norton t-. Turvill, 2 P. Wms. 144 279 Norway r. Rowe, 19 A"es. 144 269 Noves V. Crawley. 10 C. D. 31 ; 48 L. J. Ch. 112 ; 39 L. T. 267 ; 27 AV. E. 109 240 Nugent's Trusts," Be, 19 L. E. Ir. 140 28. 157, 177, 320 Nugent i\ Nugent, 15 L. E. Ir. 321 74 0. Oakley i;. Kensington Canal Co., 5 B. & Ad. 138 ; 2 L. J. K. B. 208 392 Obee V. Bishop, 1 D. F. & J. 137 ; 29 L. J. Ch. 148 ; 1 L. T. 151 ; 6 Jur. N. S. 10,132 274 O'Brien r. Mitchelstown Loan Fund, [1903] 1 I. R. 282 391 ■■!;. Osborne, 10 Hare. 92; 16 Jur. 960 209 O'Connor r. Foley, [1906] 1 L R. 20 2.118,119 r. Haslam, 5 H. L. C. 170 162 O'Donal t\ Browne, 1 Ball & B. 262 208 Offin V. Rochford Dist. Council. [1906] 1 Ch. 342 ; 75 L. J. Cli. 348 ; 94 L. T. 669; 54 AV. E. 1244 :;97, 398 Ogilvie r. Foljambe. 3 Mer. 5o 343 O'Hara v. Creagh, Long. & Town. 65 ; 3 Ir. Eq. E. 179 156, 164 O'Kelly r. Bodkin, 2 Ir. Eq. R. 361 ; 3 ibid. 390 313 Oliver & Scott's Arbitration, Re, 43 C. D. 310 ; 59 L. J. Ch. 148 ; 01 L. T. 552 ; 38AV. E. 476 410 Oliver r. Eichardson, 9 At'S. 222 175 Ongley r. Chatham Local Board, 4 T. L. R. 6 397 Ord r. Euspini, 2 Esp. 569 246 Orde r. Homing. 2 A^crn. 418 91 O'Eeilly v. Connor, [1904], 2 I. E. 101 417 r. AValsh, 6 Ir. Eq. E. 555; 7 ibid. 167 161, 173 TABLE OF CASES. xli O'Sullivan t'. M'Swiney, Long, & Town. Ill 7 Ormonde, Marquis of, f. Kynnersley, 7 L. J. Ch. O, S. 150 67 Owen, Re, [1894] 3 Ch. 220 ; 63 L. J. Ch. 740 ; 71 L. T. 181 ; 43 W. E. 55 ... 161 V. De Beauvoir, 16 M. & AV. 547 ; 5 Ex. 166 ... 24, 25, 26. 46, 288, 290 Owen Lewis's Estate, 7?e, [1903] 1 L E. 348 183 Page, Be, [1893] 1 Ch. 304; 62 L. J. Ch. 592 ; 41 W. R. 357 282 Paget V. Foley, 2 Bing. N. C. 679 ; 3 Scott, 120 ; 5 L. J. C. P. 258 ... 22, 157, 175 Paine v. Jones, 20 Eq. 320 ; 43 L. J. Ch. 787 ; 30 L. T. 779 ; 22 W. R. 837 ... 129 i;. Eyder, 24 Beav. 151 32 Palmer v. Grand Junction Ey. Co., 4 M. & W. 749 ; 8 L. J. Ex. 129 395 V. Moore, [1900] A. C. 293; 69 L. J. P. C. 64 ; 82 L. T. 166 267 Pardo V. Bingham, 4 Ch. 735; 39 L. J. Ch. 170; 20 L. T. 464; 17 W. R. 419 293 Pardee, Be, MacLaughlin v. Penny, [1906] 1 Ch. 265 ; 75 L. J. ( h. IGl ; 94 L. T. 88; 54 W. R. 210; rev. on app. on question of fact, [19061 2 Ch. 340 ; 75 L. J. Ch. 748 ; 95 L. T. 512 169,170 Pare v. Clegg, 29 Beav. 589 ; 30 L. J. Ch. 742 ; 4 L. T. 669 ; 9 W. R. 795 ; 7 Jur. N. S. 1136 280 Parker t\ Carter, 4 Hare, 400 7(j V. London County Council, [1904] 2 K. B. 501 ; 73 L. J. K. i3. 561 ; 90L. T. 415; 52 W. R.476; 68 J. P. 239 397 Parmiter i\ Parmiter, 3 D. F. & J. 461 ; 30 L. J. Ch, 508 ; 3 L. T. 799 ; 8 W. E. 578 345 Parr's Banking Co. v. Yates, [1898] 2 Q. B. 460 ; 79 L. T. 321 ; 47 W. E. 42 2.32 Parton r. "Williams, 3 B. & A. 330 392,395 Patrick v. Simpson, 24 Q. B. D. 128; 29 L. J. Q. B. 7 ; 61 L. T. 686 ' ... ' 74 Pawsey V. Barnes, 20 L. J. Ch. 393 ; 15 Jur. 943 155 Payne v. Esdaile, 13 App. Cas. 613 ; 58 L. J. Ch. 299 ; 59 L. T. 568 ; 37 ^\. E. 273; 53 J. P. 100 21,24,26,155 Peakin ^•. Peakin, [1895] 2 L R. 359 30 Pearce I'. Selby, 6 Jur. 896 377 Pears v. Laing, 12 Eq. 41; 40 L. J. Ch. 225; 24 L. T. 19; lo'w. E.653 359, 369 Redder v. Hunt, 18 Q. B. D. 565 ; 56 L. J. Q. B. 212 ; 56 L. T. 687 ; 35 W. R. 371 56 Pelly V. Bascombe, 4 Giflf. 390; 34 L. J. Ch. 233; 13 W. R. 306; 11 Jur. N. S. 52 30 Penney ?J. Todd, 26 W. R. 502 . 320 Penny v. Allen, 7 D. M. & G. 409 ; 3 Jur. N. S. 273 64, 255 V. Brice, 18 C. B. N. S. 393; 11 L. T. 632; 13 W. R. 342 207 Pentland V. Stokes, 2 Ball & B. 68 79 Percival r. Dunne, 9 Ir. C. L. R. 422 .". 156 Perliam i;. Raynal, 2 Bing. 306 ; 3 L. J. O. S. C. P. 271 ..'. ... ... 353 Perry r. Clissold, [1907] A. C. 73 ; 76 L. J. P. C. 19 ; 95 L. T. 890 122, 123, 125, 132 • r. Jackson, 4 T. R. 516 2 V. Jenkins, 1 My. &Cr. 118; 5 L. J. Ch. 82 205 Petre t'. Petre, 1 Drew. 371 70,71,73,302 Peyton y. M'Dermott. 1 Dr. & Wal. 198 7 Philips r. Philips, 3 Hare, 281 ; 13 L. J. Ch. 445 340 Phillipo V. Munnings, 2 My. & Cr. 309 167, 172, 285 Phillips ?;. Barlow, 14 Sim. 263 67 r. Beal, 32 Beav. 26 212,342 V. Broadley, 9 Q. B. 744; 16 L. J. Q. B. 72; 11 Jur. 264 249 Phillipps r. Phillipps, 4 Q. B. D. 127; 48 L. J. Q. B. 135; 39 L. T. 556; 27 W. R. 436... „ ... ... i Pl]illil)8on v.Gibbon, 6Ch. 428; 40 L. J. Ch.406; 24L.T.602; 19 W. E. 661 .38 Philpot y:. Bath, 21 T. L. R. 634 40 Philpott r. Kelly, 3 A. & K. 1(»6 223 Pickard r. Scars, 6 A. & E. 469 259 Pickering (;. Stamford, 2 Yes. Jun. 272, 581 ; 4 Bro. C. C. 214 261 Piggot /;. Jefferson, 12 Sim. 26; 5 Jur. 196 158,161 Piggott z;. Rusli, 4 A. & K. 912; 6 L. J. K. B. 272 291 xlii TABLE OF CASES. 6 Jur. 795 Ch. 899 ; 55 L. T. 333 ; 2G6 72 76 195 331, 350. 378 Poulsum v. Thirst, L. E. 2 C. P. 4i9; 30 L. J. C. P. 225; 16 L. T. 324; 15 W. I{. 766. Powell V. Eces, 7 A. & E. 426 Power r. Power, 13 L. P. Ir. 281 Powers, Be. Lindsell v. Phillips, 30 C. D. 291 ; 53 L. T Powlett V. Duchess of Bolton, 3 Ves. 374 Poynder r. Black, 5 Dowl. 570 Prance r. Svmpson, Kav, 678 ; 18 Jur. 929 Pratt V. Hawkins, l.T M. & W. 399 r. Hillman, 4 B. & C. 269 Prendergast i: Turtou, 1 Y. & C. C. C. 98 ; 13 L. J. Ch Prescott v. Boucher, 3 B. & Ad. 849 r. Nicholson, 60 L. T. 563 Prestidge v. Woodman, 1 B. & C. 12 Price ^rBerrington, 3 Mac. & G. 486; 15 Jur. 999 Priestley v. Ellis. [1897] 1 Ch. 489 ; 66 L. J. Ch. 240 442 Prior r. Horniblow, 2 Y. & C. Ex. 20(i Propert v. Parker. 1 E. & M. 625 Proud r. Proud, 32 Beav. 234 ; 32 L. J. Ch. 125 ; 7 101 Prowse V. Spurgin. 5 Eq. 99 ; 37 L. J. Ch. 251 ; 17 L. 1 Pryke r. Hill, 79 L. T. 738 Pugh V. Heath. See Heath r. Pugh Pulman r. Meadows, [1901] 1 Ch. 2:!3 ; 70 L. J. Ch. 97 Pulteney r. Warren, 6 Ves. 73 Purcell r. M'Xamara, 14 Ves. 91 Purdon r. Purdon, 10 M. & W. 562 ; 12 L. J. Ex. 3 Pushman r. Filliter, 3 Ves. 7 Putnam r. Bates, 3 Euss. 188 Pyrah v. Woodcock, 24 L. T. 407; 19 W. E. 463 ... 647 268 76 L. T. 187 ; 4 L. T. 553; 11 590 ; 16 W. E 84 L. T. 26., PAGE ... 66 ... 99 ... 216 ... 17 326, 380 W. K. ... 224 ... 173 99 Pigot r. Bullock, 1 Ves. Jun. 479 Piahorn r. Souster, 8 Ex. 763 Pit r. Cholmondeley, 2 Ves. S. 565 Pitt V. Lord Dacre, 3 C. D. 295 ; 45 L. J. Ch. 796 ; 24 W. R. 943 Pittam v. Foster, 1 B. & 0. 248 ; 1 L. J. O. S. K. B. 81 Plant r. Cotterill, 5 H. & N. 430 ; 29 L. J. Ex. 198 ; 2 L. T. 20 ; S 281 Plavfair r. Cooper, 17 Beav. 187 ; 23 L. J. Ch. 341 Polden v. Brewer, 7 C. B. N. S. 371 ; 6 Jur. N. S. 509 Poller r. Fordham, [1904] 2 K. B. 345 ; 73 L. J. K. B. 687 ; 90 L. T. 755 ; 53 W. E. 48 : 68 J. P. 321 398 Pomfret, Earl of, r. Windsor, 2 Ves. S. 472 76,262 Pongola. The, 73 L. T. 512 ; 8 Asp. M. C. 89 240,243 Pool and Forden Highway Board v. Gunning, 51 L. J. M. C. 49 ; 46 L. T. 163 229 Pope r. Biogs. 9 B. & C. 245 85 Poole r. Griffith. 15 Ir. C. L. E. 277 110 r. Poole. 7Ch. 17; 25 L. T. 770; 20W. E. 133 210 Pooley's Trustee v. Whetham, 33 0. D. Ill ; 55 L. J 34W. E.6S9 Portlock r. Gardner, 1 Hare, 594 ; 11 L. J. Ch. 313 ; Portsmouth. Karl of, r. Effingham, 1 Ves. S. 430 • Banking Co., i?e, 2 Eq. 167; 14 L. T. 47; 14 W. E. 417 . Pott V. Clegg, 16 M. & W. 321 ; 16 L. J. Ex. 210; 11 Jur. 289 ... 21" 15'; 391 ... 228 246, 278 356, 369 66, 67 ... 348 ... 347 ... 312 ... 394 ... 267 22 ... 415 ... 396 ... 304 W. E. ... 280 168,171 ... 344 W. E. 162, 171 413... 267 ... 350 ... 212 ... 208 ... 261 375, 379 ... 72 384, 385 Q. Quantock 1-. England, 5 Burr. 2628 ; 2 W. Bl. 702 213 Quarrell r. Beckford, 1 Madd. 269 89 Quilter r. Mapleson, 9 Q. B. D. 672 ; 52 L. J. Q. B. 44 ; 47 L. T. .■)62 : 31 W. E. 75 199 Quincey v. Sharpe. 1 Ex. D. 72 ; 45 L. J. Ex. 347 ; 34 L. T. 495 : 24 W. E. 373 346 Quintou r. Frith, Ir. E.2 Eq. 396 73,80 TABLE OF CASES. xliii E. TAOE K. V. Abergele, InLabitants of, 5 A. & E. 795, 796 n. (o) 409, 410 — r. Agardslev, 5 Dowl. 19 ... 93 — r. Allan, 4 B. & y. 915 409 — r. Anderson, 2 G.& D. lU; 408 — I'. Austin, 1 C. & K. (;21 40<:; — r. Battams, 1 East, 29S 410 — r. Bishop, 5 B. & A. 612 407 — I'. Bloxam, 1 A. & E. 386 40i) — 1-. Boughev, 4 T. R. 281 409 — r. Brooks,"2 C. & K. 402 ; 1 Den. 217 406 — i'. Carter, 68 J. P. 466 390 — r. Cartworth, Inhabitants of, 8 Jur. 61 ; sec ibid. 360 410 ,5Q. B. 201 410 — r. Casbolt, 11 Cox C. C. 285 406 — V. Cockermouth Inclosure Commissioners, 1 B. & Ad. 370 411 — i: Edwards, 13 Q. B. D. 586 ; 53 L. J. M. C. 149 ; 51 L. T. 586 ; 49 J. P. 1 17 417 — f. Fermanagh, Justices of, [1904] 2 I. E. 18 417 — r. Francis, 18 Q. B. 526; 21 L.J. Q. B. 304 408 — r. Gateshead, Mayor of, 34 W. E. 682 417 — r. C4ilberdvke, Inhabitants of, 5 Q. B. 207 410 — r. Hanna\% 44 L. J. M. C. 27 ; 31 L. T. 702 ; 23 W. E. 164 417 — r. Harries, 13 East, 270 407 — r. Harris, 5 A. & E. 518 407 — I. Harris, 11 A. &E. 518 408 — r. Hartley, 4 B. & Ad. 869 u 407 — r. Hodson, 9 L. T. 290 409 — V. Hudson, 4 Q. B. 648, n. (6) 408 — r. Hull, 2 F. & F. 16 406 — r. Jollie, 4 B. & Ad. 867 407 — r'. Killminster, 7 C. & P. 228 406 — V. Labouchere, 12 Q. B. D. 320 ; 53 L. J. Q. B. 362 ; 50 L. T. 177 ; 32 W. R. 861 : 48 J. P. 165 400 — V. Leeds and Liverpool Canal Co., 11 A. &. E. 316 411 — ?'. Marshall, 13 East, 322 407 — r. Middlesex, JJ. of, 5 A. & E. 626 409 — i". Morrall, 6 Price, 24 224 — r. O'Meara, 4 B. & Ad. 869 n 407 — 1'. Parker, Leiuh & C. 459 ; 33 L. J. M. C. 135 406 — r. Phillips, Euss. & Ry. C. C. E. 369 406 — r. Robinson, 1 W. Bl. 541 407 — r. St. Marv, Whitechapol, 2 Dowl. N. S. 964 409 — t;. Satirist," 3 N. &M. 532 407 — V. Slade, [1895] 2 Q. B. 247 ; 64 L. J. M. C. 232 ; 73 L. T. 343 ; 59 J. P. 471 417 — I'. Sheffield, Mayor of, L. R. 6 Q. B. 652 ; 40 L. J. Q. B. 247 ; 24 L. T. 65'.> : 19W.E.1159 3;t0,410 — r. Smitli. 7 T. R. 80 407 — r. Staffordshire, J J. of, 7 E. & B. 935 lOSJ — V. Stainforth and Keadby Canal Co., 1 M. & S. 32 411 — /•. Stepney Union, L. E."9 Q. B. 383 ; 43 L. J. M. C. 145 : 30 L. T. SOS ... 233 — r. Stoke.s, 2 M. & S. 71 407 — v. Suffolk, JJ. of, 1 Dowl. 163 409 — 7,'. Sussex, JJ. of, 1 M. & S. 631, 734 iOl> — v. Taylor, Ex parte Gailev, [1908] 2 K P.. 237; 77 L. J. K. B. 531 ; 9,s L. T. 754 ; 72 J. P. 23S 41:: — r. Thompson, 16 Q. B. S32 ; 20 L. J. I\l. C. 183; 51 Jur. 45:'. 404 — V. 'lower Hamlets, Commrs. of Sc\Yers for, 5 Q. B. 375 ... ... ... 410 — /•. Wardroper, 4 Burr. 2024 -i''^ — /•. Wells, Corporation of, 4 J )owl. 562 411 — r. ^Villace, 1 East P. C. 1S<; 406 — r. AVoobiirn, Inhabitants of, 10 B. &. C. 846 12 Rackham r. ."Murriott, 2 II. tV \. 196; 26 f.. .1. Ex. 315; 5 W. il. .572 ; 3 Jur. X S 4:15 . . 350 xliv TABLE OF CASES. Eadcliffe r. Bartholomew, [1802] 1 Q. B. 161 ; Gl L. J, M. C. 63 ; 65 L. T. 677 : 40 W. E. 63 412 Kaffety r. Kiuo, 1 Keen, 601 ; 6 L. J. Ch. 87 90 Rainfortli, JiHGwynnr. Gwynn, 49L. J. Ch. 5; 41 L. T. 610 376 Eains r. Buxton. 14 C. D. 537 ; 49 L. J. Ch. 473 ; 43 L. T. 88 ; 28 W. E. 954 33, 44, 304 Eamsden v. Dyson, L. E. 1 H. L. 129; 14 AV. E. 926 ; 12 Jur. N. S. 506 ... 254 Eandall r. Stevens, 2 E. vt B. 641 ; 23 L. J. Q. B. 68 ; 18 Jur. 128 ... 11, 97, 100 Eankin ?•. 3rMurtry, 24 L. E. Ir. 290 119 Eavenscroft v. Frisby, 1 Coll. 16; 13 L. J. Ch. 153 171 Eawley r. Eawlev, 1 Q. B. D. 460 ; 45 L. J. Q. B. 675 ; 35 L. T. 101 : 24 W. E. 995..." 211,246 Eawlins r. Wickbam, 3 De G. & J. 304 ; 1 Giff. 355 ; 28 L. J. Ch. 188 ; 7 W. E. 145; 5 Jur. N. S. 278 298 Eeade r. Eeade, 5 Yes. 744 189,193 Eeay v. Mayor of Gateshead, 55 L. T. 92 ; 34 W. E. 682 ; 50 J. P. 805 ... 417 Eeed r. Fenn. 35 L. J. Ch. 464; 14 W. E. 704 172 Eeeves r. Butcher, [1891] 1 Q. B. 509 ; 60 L. J. Q. B. 619 ; 65 L. T. 329 ; 39 W. E. 626 238 r'. Hearne, IM. &W. 323 208 Eeid V. Coker, 13 C. B. 850 ; 22 L. J. C. P. 201 : 17 Jur. 990 392 — — • 1-. Dickons, 5 B. & Ad. 499 374 Eeillyt-. Thompson, Ir. E. 11 C.L. 238 36 Eeimersr. Druce, 23 Beav. 145; 26 L. J. Ch. 103 : 5 W. E. 211 ; 3 Jur X. S. 147 293 Eemiugton ?;. Stevens, 2 Str. 1271 246 Eendell 7'. Carpenter, 2 Y. & J. 484 346 Eew ?•. Pettett, 1 A. & E. 196 380 Eeynolds v. Doyle, 1 Man. & Gr. 753 ; 2 Scott N. E. 45 ; 44 Jur. 092 ... 233, 234 Ehodes r. Patelev Bridge Union. 51 L. T. 235 233 r. Smethurst, 6 M. & W. 351 ; 9 L. J. Ex. 330 ; 4 Jur. 702 207 Eich r. Johnson. 2 Str. 1142 18 Eichards r. Eichards, 2 B. & Ad. 447 207 Eichardson r. Barry, 29 Beav. 22 348 — r. Langridge, 4 Taunt. 128 99 V. Younge,"'6 Ch. 478; 40 L. J. Ch. 338 ; 25 L. T. 230 ; 10 W. E. 612 ... 338 Eidd r. Moggridge, 2 H. & N. 567 326 Eidgway r. Newstead, 3 D. F. & J. 474 ; 2 Giff. 492 ; 30 L. J. Ch. 889 ; 4 L. T. 492 ; 9 W. E. 401 266 Eimington i: Cannon, 12 C. B. 18; 22 L. J. C. P. 153; 1 W. E. 201 62 Eiver steamship Co., Rt-. See Mitchell's Claim Eobarts v. Eobarts, 1 31oo. & P. 487; 6 L. J. O. S. C. P. 117 344 Eoberts v. Orchard, 2 H. & C. 769 ; 33 L. J. Ex. 65; 9 L. T. 727; 12 AV. E. 253 393 r. Bead, 16 East, 215 399 V. Tunstall,4 Hare,257; 14 L. J. Ch. 184; 9 Jur. 292 261.264 Eobertson r. Xorris, 1 Giff. 421 ; 4 Jur. N. S. 155, 443 266 Eobinson r. Alexander, 2 CI. & F. 717 ; 8 Bliah N. E. 352 214 r. Currey, 7 Q. B. D. 465 ; 50 L. J. Q. B. 561 ; 45 L. T. 368 ; 30 W.E. 39 241,242 >: Harkin, [1896] 2 Ch. 415 ; 65 L. J. Ch. 773 ; 74 L. T. 777 : 44 W.E. 702 235,284 r. Hawksford, 9 Q. B. 52 220 Eoch V. Callen, 6 Hare, 531 ; 17 L.J. Ch. 144; 12 Jur. 112 4, 168, 177 Eochdale Canal Co. r. King, 2 Sim. N. S. 78; 20 L. J. Ch. 675; 15 Jur. 062 254, 255 Eoche V. O'Brien, 1 Ball. & B. 330 297 Eochefoucauld r. Boustead, [1897] 1 Ch. 106: m L. J. Ch. 74; 75 L. T. 502: 45W. E. 272 258,272 Eock V. Cooke, 1 De G. & Sm. 675; 17 L. J. Ch. 03; 12 Jur. 5 237 Eoddam v. Morley, 2 K. & J. 336 ; 1 De G. & J. 1 ; 26 L. J. Ch. 438 : 5 W. E. 510 ; 3 Jur. N. S. 449 2, 155, 329, 358, 350, 364. 370, 371, 372, 373. 385, 386 Eoe r. Herve}', 4 Burr. 24S4 120 r. Ireland, 11 East, 280 94,142 TABLE OF CASES. xlv PAGE Uo&ey, Ex parte, 10 Yea. iGS 213 Rogers r. Pitcher, 6 Taunt. 202 12G Quimi, 26 L. R. Ir. 136 342 Rolfe V. Gregorv, 4 D. J. & S. 570 : 34 L. J. Ch, 274 ; 12 L. T. 102 ; 13 W. R. 355; llJur. N. S. 98 297 Rolt V. Somerville, 2 Eq. Cas. Abr. 750 67 Romer and Haslam, lie, [1893] 2 Q. B. 28G ; 62 L. J. Q. B. 010; 09 L. T. 547; 42 AV. R. 51 248,249 Rose i\ Goukl, 15 Bcav. 189; 21 L. J. Ch. 300 211 noss, Ex parte, 2 Glyn& J. 330 319 Rothery v. Miuminos, 1 B. & Ad. 15 ; 8 L. J. O. S. K. B. 380 248 Round r. Bell, 30~^Beav. 121 ; 31 L. J. Ch. 127 ; 5 L. T. 15 ; 9 W. R. 846 ; 7 Jur. X. S. 1183 182 Routledge i\ Ramsav, 8 A. & E. 221 ; 7 L. J. Q. B. 156; 2 Jur. 789 ... 345, 349 Rowbotham V. Wilson. 8 E. & B. 123 19 Rowe, He, Jacobs r. Hind, 58 L. J. Ch. 703 ; 60 L. T. 596 ; 61 L. T. 581 ... 173 r. Grenfell. Ry. & Moo. 390 18 Rownson. Be, Field r. White, 29 C. D. 358 ; 54 L. J. Ch. 950 ; 52 L. T. 825 ; 33W. R. 004 211 Rowson r. Earle. 1 Moo. & M. 538 248 Roval Aquarium Society v. Parkinson. [1892J 1 Q. B. 431 ; 01 L. J. Q. B. 409 ; 66L. T. 513; 40 W. R. 450 39G Roval Bank of Australia, Be, Ex parte Forest, 2 Gift". 42 319 Rudd V. Riidd. [1895] 1 I. R. 15 171 Ruler. Jewell. IS C. D. 660; 29 W. R. 755 267 Rumball c. Schmidt, 8 Q. B. D. 603 ; 40 L. T. 061 ; 30 W. R. 949 ; 40 J. P, 507 417 Russell c. Crowley, [1907] 1 I. R. 275 108,172 Rustomjee r. The Queen, 1 Q. B. D. 487 ; (C. A..) 2 Q. B. D. 69 ; 40 L. J. Q. B. 238 ; 30 L. T. 190 ; 25 W. R. 333 225 Rutherford, Be, 14 0. D. 687 ; 49 L. J. Ch. 654 ; 43 L. T. 105 ; 28 W. R. 802 222. 244, 375 Ryan r. Cambie, 2 Ir. Eq. R. 328 166 f. Sheehy, 12 Ir. L. R. 44 310 s. Saffyn r. Adams, Cro. Jac. 61 200 St. John V. Boughton, 9 Sim. 219 ; 7 L. J. Ch. 208 ; 2 Jur. 413 313, 314, 328, 332, 335 Sale Hotel, etc., Ltd.. i.'e, 40 W. R. 314, 617 281 Salford, Mayor of, v. Lancashire County Council. 25 Q. B. D. 384 ; 59 L. J. Q. B. 576 : 63 L. T. 409 : 38 W. R. 661 I'JC Salisbury ?•. Gould, 68 J. P. 158 390,402 Salkeld i: Johnston, 1 Mac. & G. 242; 18 I;. J. Ch. 493; 14 Jur. 1 ... 20, 21 Salter r. Cavanagh, 1 Dr. & Wal. 608 74 Samuel Johnson & Sons, Ltd. r. Brock, [1907] 2 Ch. 533; 76 L. J. Cli. 002; 97L. T. 294 80.120 Sanders' Trusts, Be, 47 L. J. Ch. 667 279 Sanders *■. Coward, 15 M. & W. 48 202 /•. Sanders, 19 C. D. 373; 51 L. J. Ch. 270 ; 45 L. T. 037; 30 W. R. •-^80 32,33.104,110,335 Sanderson f. Benson, 4 Beav. 350 235 Sandgate I>ocal Board v. Keeue, [1892] 1 Q. B. 831 ; 60 L. T. 741 414 Sands to Thompson, 22 C. D. 614; 52 L. J. Ch. 400; 48 L. T. 210; 31 W. R. •^9" 71,77.85.89 Saunders V. Annesloy, 2 Sch. »& Lef. 8, 73 96 V. Edwards. 1 Sid. 95; Sir T. Raymond, 01 203, 230 v. Wiel, [1892] 2 Q. B. 321; 02 L. J. Q. B. .37; 07 L. T. 207; 40 W. Jt. 594 241 Savage 7-. Aldren, 2 Stark. 232 221 '■. Foster, 9 Mod. 35 253 Saxon Life Assurance Society, /.'e, 2 J. & H. 408 200 Scales '•. Jacob, 3 Bing. 638; 4 L. J. O. S. C. I'. 209 :;51 xlvi TABLE OF CASES. PACK Scarpelliui r. Atchesoii. 7 Q. B. S64 : 14 L. J. Q. B. 333 ; 1) Jur. 827 4 Scholey r. Walton, 12 M. & W. 510 ; 13 L. J. Ex. 122 ; 8 Jur. 3U) ... 353, 388 Scott, i^e. S Ir. Cb. R. 316 73.80 r. Jones. 4 CI. &F. 382; 7 L.J. Cli. 242 158,161,280,342 • r. M'Intosh, 2 Camp. 238 192 >:. Xixon, 3 Dr. & War. 388; 6 Ir. Eq. E. 8; 2 Con. & L. 185 112, 113, 117, 118, 119, 130,335 r. Scott, 4H. L. C.1065; 18 Jur. 755 78,80 r. Synge, 27 L. E. Ir. 560 332,364 Scottish Petroleum Co.. He, 23 C. D. 413 ; 49 L. T. 348 ; 31 W. E. 846 ... 271 Scottish Provident Institution ;•. Conollv, 31 L. E. Ir. 329 28,234 Seasrer r. Alston, 26 L. J. Ch. 809 ; 5 W. E. 548 ; 3 Jur. N. S. 481 172 Seagram c. Knio-ht, 2 Ch. 628; 36 L. J. Ch. 91S; 17 L. T. 47; 15 W. E. 1152 66,67,207 c. Tuck, 18 C. D. 296; 50 L. J. Ch. 572; 44 L. T. 800; 29 W. E. 784 ... 276 Seaman r. A^awdrev. 16 Yes. 390 ... ... ... ... ... ... ... 34 Scarby r. Tottenham Ev. Co., 5 Eq. 409 42 Searle v. Barriu£rton, 2 Str. 826 ; 3 Bro. P. C. 593 ; 8 Mod. 278 363 c. Colt. 1 Y. & C. C. C. 36 28 Seddon r. N. E. Salt Co., 53 W^ K. 232 271 r. Smith. 36 L. T. 168 40,41 Sellors 1-. Matlock Bath Local Board, 14 Q. B. D. 928; 52 L. T. 762 388 Selmes *■. Judge. L. E. 6 Q. B. 724; 40 L. J. Q. B. 287; 24 L. T. 904; 19 AY. E. 1110; 35 J. P. 645 396,397 Selsey r. Eboades, 1 Bligh. X. S. 1 265 Senhouse r. Christian, cited, 19 Yes. p. 159 269 Severn, etc.. Ey. Co., Be, [1896] 1 Ch. 559; G5 L. J. Ch. 400; 74 L. T. 219; 44W. E. 347 196 Shannon, Lord, r. Hodder. 2 Ir. L. E. 223 19 r. Stoughton, 3 Ir. L. E. 521 19 Sharman r. Eudd, 4 Jur. N. S. 527 212 Sharp r. Jackson, [1899] A. C. 419 280 Sharpe, .Kc 23«/ Skeet V. Lindsay, 2 Ex. D. 314; 46 L. J. Ex. 249 ; :i6 L. T. 98 ; 25 W. 11. 322 347 Skelton's Case, 68 L. T. 210 271 Skeue r. Cook, [1902] 1 K. B. 682; 71 L. J. K. B. 446; 86 L. T. 319; 50 W. R. 506 27 Slacke's Estate, iiV, [1896] 1 L R. 191 320,321 Slater's Trusts, Be, 11 C. D. 227 ; 48 L. J. Ch. 473 ; 40 L. T. 184; 27 W. R. 448 180 Slater v. Jones, L. R. 8 Ex. 186 ; 42 L. J. Ex. 122 ; 29 L. T. 56 ; 21 W. R. 815 209 V. Lawson, 1 B. & Ad. 396 ; 9 L. J. O. S. K. B. 4 353, 382 Sleeman c. Wilson, 25 L. T. 408 273 Sloaue y. Flood, 5 Ir. C. L. R. 75 113 Sly V. Blake. See lie Johnson Smallcombe I'. Bruges, M'Cl. 45 : 13 Price, 136 350 Smalpage v. Tonga, 17 Q. B. D. 644 ; 55 L. J. Q. B. 518 ; 55 L. T. 44 ; 34 W. R. 768 312 Smith, lie, Henderson-Rowe v. Hitchens, 43 C. D. 302; 58 L. J. Ch. 860; 61 L. T. 363 ; 37 W. R. 705 173 r. Bennett, 30 L. T. 100 31 V. Betty, [1903] 2 K. B. 317; 72 L. J. K. B. 853; 89 L. T. 258; 52 W. R. 137 246,376 r. Clay, 3 Bro. C. C. 639 n 251,252,254,256 V. Cork & Bandon Rv. Co., Ir. R. 5 Eq. 65... 196, 274 r. Forty, 4 C. & P. 126 343 V. Fox, 6 Hare, 386; 17 L. J. Ch. 170 ; 12 Jur. 130 247 V. Hill, 9 C. D. 143 ; 47 L. J. Ch. 788 ; 38 L. T. 638 ; 26 W. R. 878 ... 180 v. Hopper, 9 Q. B. 1005 393 r. King, 16 East, 283 76 V. Lloyd, 9 Ex. 562; 23 L. J. Ex. 194; 2 W. R. 271 10, 34, 50 i: O'Grady, L. R. 3 P. C. 311; 39 L. J, P. C. 63; 23 L. T. 476; 19 W.R. 22 169 V. Pococke, 2 Drew. 197 ; 23 L. J. Ch. 545 ; 2 W. R. 285 ; 18 Jur. 478 247 1-. Poole, 12 Sim. 17: 10 L. J. Ch. 192 342 t'. Savage, [1906] 1 L R. 469 119,120 I'. Shaw, lOB. &C. 277; 8 L. J. O. S. K. B. Ill 394 i. Smith, Ir. R. 10 Eq. 273 ; 1 L. R. Ir. 206 70,189 V. Stocks, 10 B. & S. 701 ; 38 L. J. Q. B. 306 ; 20 L. T. 740 ; 17 W. R. 1135 41 V. Thorne, 18 Q. B. 134 ; 21 L. J. Q. B. 199 ; 16 Jur. 332 ... 341, 350 ■ V. Wiltshire, 5 Moo. 322 ; 2 Br. & B. 619 396 Smithwick's Estate, /?e, [1896] 2 L R. 401 317 Snow V. Booth, 8 D. M. & G. 69 ; 25 L. J. Ch. 417 ; 4 W. R. 345 ; 2 Jur. X. S. 244 53 Snowdon, Ex parte, 17 C. D. 44; 50 L. J. Ch. 540; 44 L. T. 830; 29 W. \\. „ *J54 235 Soar V. Ash well, [1893] 2 Q. B. 390; 69 L. T. 585 ; 42 W. R. 105 ... 73. 274, 275 Sober y. Kemp, 6 Hare, 155 ... 182 Soiling V. Broughton, [1893] A. C. 556; 63 L. J. P. C. 2i .". 11 Somerset, He, Somerset v. Earl Poulett, [1894] 1 Ch. 231; 63 L. J. Ch. 41 ; 70 L. T. 541 ; 42 W. R. 274 284,286,363 South Sea Co. c. Wymondsell, 3 P. Wms. 143 301 Southcomb V. Bishop of Exeter, 6 Hare, 213 ; 16 L. J. Ch. 378 ; 11 Jur. 725 ... 270 Spackman r. Foster, 11 Q. B. D. 99; 52 L. J. Q. B. 418; 48 L. T. 670 ; 31 W. R. .548 ; 47 J. P. 455 223 Spears r. Hartley, 3 Esp. 81 209 Spencer, Earl, r. Swannell, 3 M. & W. 151 5 Bpickerwell v. Hotham, Kay, 669; 2 W. R. 638 ... 87, 274, 276, 344, 345, 846, 352, 362 Sponge. Wright, 9 M. &W. 629; 12 L.J. Ex. 144 346 Spoor V. Green, L. R. 9 Ex. 99 ; 43 L. J. Ex. .J7 ; 30 L. T. 393 ; 22 W. R. .-.)7 202, 20: 5 Sprange v. Lee, [1908] 1 Ch. 424 ; 77 L. .1. Ch. 274 ; 9.S L. T. 400 261 Spread i;. Morgan, 11 H. L. C. 588; 13 L. T. 164 J55 Stackliouse V. Barmston, 10 Vos. 453 S xlviii TABLE OF CASES. PACK Stackpoole r. Davoreii, 1 Bro. P. C. 9 ... 138 V. Stackpoole, 4 Dr. & War. 320; 6 Ir. Eq. R. IS; 2 Con. & Law 489 5G Stafford r. Stafford, 1 De G. & J. 193 ; 4 Jur. N. S. 149 960 Stagg v. Wyatt, 2 Jur. 892 244 Stahlschmidt r. Lett, 1 Sm. & G. 415 ... . 212 Stalev r. Barrett, 2G L. J. Ch. 321 ; 5 W. R. 188 .'.'." 362 Stamford, &c., Bankino- Co. v. Smith, [1892] 1 Q. B. 765 ; 61 L. J. Q. B 405 • 66L. T. 306; 40 W. K. 355 1,342,381 Stamford's Case, Cro. Jac. 61 ... ... ' 51 Stansficld V. Hobson, 3 D. M. & G. 620 ; 22 L. J. Cb. 657 ; 1 W. R. 216 ..'. 116, 334 335 Stead's Blortoatied Estates, 2 C. D. 713 ; 45 L. J. Ch. 634 ; 35 L. T. 465 • '^4 ' W. K. 698 : ' ~. 183 Stedman v. Hart, Kay, 607 ; 23 L. J. Ch. 908; 2 W. E. 462 ; 18 Jur. 744 . 937 ■ — V. Smith, 8 E. & B. 1 38 Stephens, Be. Warburton v. Stephens, 43 C. D. 39 ; 59 L. J. Ch. 109 • 01 L T 609 '... 158,317 ^. Elwall, 4 M. & S. 258 222 Sterndalc r. Hankinson, 1 Sim. 393 313,314,316 317 Steward r. North Metrop. Tram. Co., 16 Q. B. D. 556; 55 L. J. Q B. 157- 54L. T. 35; 34 W. K. 316; 50 J. P.324 ] 309 Stewart r. Connick, Ir. B. 5 C. L. 562 373 r. Marquis of Conyngham, 1 Ir. Ch. R. 534 32 80 Stin son's Estate. i?e, 29 L. R. Ir. 490 318 Stock, He. 66 L. J. Q. B. 146 ; 75 L. T. 422 ; 45 W. R. 480 ."* 209 Stone V. Godfrey, 5 D. M. & G. 76; 23 L. J. Ch. 769 ; IS Jur. 524 ... 257 '?60 V. Stone, 5 Ch. 74 ; 39 L. J. Ch. 196 ; 22 L. T. 182 ; 18 "W. R 2'>5 ' 276 Stooke v. Taylor, 5 Q. B. D. 569 ; 49 L. J. Q. B. 857 ; 43 L. T. 200 ; 29 W R 49; 44 .LP. 748 .>45 Story ^^ Gape, 2 Jur. N. S. 706 274 Strachan r. Thomas. 12 A. & E. 536 ; 9 L. J. Q. B. 399 ; 4 Jur. 1183 ... 156 184 Stringer's Case, 4 Ch. 475 ; 38 L. J. Ch. 698 ; 20 L. T. 591 ; 17 AV. R. 694 ..." 271 Stringer, Be. Shaw v. Jones-Forde, 6 C. D. 1 ; 46 L. J. Ch. 633 ; 37 L. T. 233 • 25W. R. 815 ' 129 i\ Barker, W. N. (1879), p. 127 39O Strithorst r. Graeme, 2 W. Bl. 723 ; 3 "Wils. 145 293 Stucley, Be, Stucley r. Kekewich, [1906] 1 Ch. 67 ; 75 L. J. Ch. 58; 93 L T 718; 54 W. R. 256 ISO Sturgis V. Darell, 4 H. & N. 622 ; 6 H. & N. 120 ; 29 L. J. Ex. 472 ; 2 L. T 808 ; 8 W. P. 653 ; 6 Jm-. N. S. 1351 200 r. iMorse, 24 Beav. 541 ; 3 De G. & J. 1 70 303 307 Sturt r. Mellish, 2 Atk. 610 ' 208 Sunderland, Corporation of, ?7. Alcock, 51 L. J. Ch. 546 416 Supple i\ Cann, 9 Ir. C. L. R. 1 208 Lessee of, y. Raymond, Hayes, 6 ... ... ... ... ... ... 288 Sutton, Be, Sutton v. Sutton, 22 C^ D. 511 ; 52 L. J. Ch. 333 ; 48 L. T. 95 ; 31 W. E. 369 28,154,157,158,165,184,355 Swain. Be, Swain r. Bringemnn, [1891] 3 Ch. 233 ; 61 L. J. Ch. 20 ; 65 L. T. 296 284,285 Swanton's Estate, iZe, [1898] 1 I. R. 157 31S Swayne r. Stephens, Cro. Car. 245 ... ... I9;; Sweetmau v. Guest, L. R. 3 Q. B. 262; 37 L. J. M. C. 59; 18 L. T. 52 ■ 16 AV. R. 426 Swindell v. Bulkelcy, 18 Q. B. D. 250 ; 56 L. J. Q. B. 613 ; 56 L. T. 138 • 35 AV. R. 189 ' , . Sykes r. Mayor of Hiiddersfield, 35 J. P. 614 '."] 415 Symouds v. Hallett, 24 C. D. 346 ; 53 L. J. Ch. 60 ; 49 L. T. 380 ; 32 AV. R. 103 289 Synnot r. Simpson, 5 H. L. C. 121 279 280 Taaffe's Estate, iZe. 1 L. R. Ir. 387 318 Tabor V. Godfrey, 64 L. J. Q. B. 245 '" no Taite's Case, 3 Eq. 795 ; 36 L. J. Oh. 475 ; 16 L. T. 343 ; 15 AV. R. 891 •>71 413 200 TABLE OF CASES. xlix PAGE Talmasli 1-. Mugleston, 4 L. J. O. S. Ch. ^OD 252 Tanner r. Smart, 6 B. & C. 603 ; 5 L. J. 0. S. K. B. 218 ... :]26,"o3y, sio, 351 Tatam r. Williams, 3 Hare, 347 315 Taylor,i?e, 81L. T. 812 V. ■■255,273,285 — V. Hollard, [1902] 1 K. B. 676 ; 71 L. J. K. B. 278 ; 86 L. T. 228 ; 50 W. R. 558 ... 356,357 '•. Horde, 1 Burr. 60; 2 Smith's Leading Cases, lltli ed. 575 119 TeedtJ. Bere, 28L. J. CIj. 782; 5 Jur. N. S. 381 276 Teulou r. Curtis, Younae, 610 ... 91 Theobald V. Criehmore,! B. & A. 227 .'.'.' 393,395 Thomas r. Cross, 7 Ex. 728 '378 V. Sylvester, L. E. 8 Q. B. 368 ; 42 L. J. Q. B. 237 ; 29 L. T. 290 • 21 W. R. 912 97 V. Thomas, 2 K. & J. 79; 25 L. J. Ch. 159; 4 W. R 135 • 1 Jiir. N *S ^, 1160 "...7,30 Thompson v. Bowyer, 9 L. T. 12 ; 11 W. R. 975 ; 9 Jur. N. S. 863 334 I'. Eastwood, 2 App. Cas. 215 179,263 '•. Hickman, [1907] 1 Ch. 550 ; 76 L. J. Ch. 254; 96 L. T. 454 ... 19 35 r. Hurley, [190.5] 1 L R. 588 314,358 '•. Simpson, 1 Dr. & War. 459 7I V. AVaithman. 3 Drew. 628; 26 L. J. Ch. 134; 5 W. E. 30; 2 Jur! ^, N.S. 1080 383 Tliomson v. Clanmorris, [1900] 1 Ch. 718; 69 L. J. Ch. 337- 82 L T •'77- 48W. R.488 ' ■ ' 241 Thorne v. Heard, [1895] A. C. 495 ; [1894] 1 Ch. 599 ; 64 L. J. Ch. 632 ; 73 L. T. 291 ; 44 W. R. 1.55 281,282,284,299 ■ V. Kerr, 2 K. & J. 54 ; 25 L. .J. Ch. 57 : 4 W. R. 131 ; 2 Jur. N. S. 322 229 Thornton v. France, [1897] 2 Q. B. 143 ; 66 L. J. Q. B. 705 ; 77 L. T. 38 ; 46 AV. R56 8,89,92,367 Thorp V. Facev, 35 L. J. C. P. 349 ; 12 Jur. N. S. 740 19 Thorpe f. Booth, Ry. ifc M. 388 " 922 V. Coombe, 8 D. & E . 347 ; Ey. & M. 388 ..'. ..'. 222 r. Stall wood, 5 Mar. & Gr. 760 50 205 Three Towns Banking Co. r. Maddever. See Re Maddever Tich borne r. Weir, 67 L. T. 735 127 Tidball r. James, 29 L. J. Ex. 91 32 Tidd, Ee, [1893] 3 Ch. ].54; 62 L. J. Ch. 915; 69 L. T. 255; 42 W. R.'25 .'.'.' 217, Tilling & Co.. Ltd. v. Dick, Kerr & Co., [1905] 1 K. B. 562 • 74 L J K B 3.-.9 ; 02 L. T. 731 ; 53 W. R. 380 ; 69 J. P. 172 ' sqi Timmis, Be, [1902] 1 Ch. 176; 71 L. J. Ch. 118 ; 85 L. T. 672 ; 50 W. R. 164 172, 173, 282, 285 r. Piatt, 2 M. i- W. 720 . 326 Tinker r. Rodwell, 69 L. T. 591 [['_ 30 Tippetts V. Hearne, 1 C. M. & E. 252; 3 L. J. Ex. 281 . ... 375 Tobacco Pipe Makers' Co. u. Loder, 16 Q. B. 765 ; 20 L. J. Q. B. 414 -15 Jiir 1194 ;,. ■ 040 Toft V. Stephenson, 7 Hare, 1 ; ID. M. & G. 285 ; 5 ibid. 735 ; 21 L. J. Cli 129; 15 Jur. 1187 73,155.315,328,329 roUemache, J{e, Ex parte Eevell, 13 Q. B. D. 720 ; 54 L. J. Q. B. 89 ■ 51 L T 376 ; 33 W. E. 288 '...■ 331 Tolsou ^•. Kaye, 3 Br. \- B. 217 ][ 1 2 Toms r. Clacton Di.st. Council, 78 L. T. 712 ; 46 W. E. 629 ; 62 J. P. 505 '" 397 Topham r. Booth, 35 C. D. 607 ; 56 L. J. Ch. 812 ; 57 L. T. 170 ; 35 W. R. 715 87, Topham r. Braddick, 1 Taunt. 572 94;; Toplis «. Baker, 2 Cox, 118 158 Topping, Ex parte, 4 D. J. & S. 551 ; 34 L. J. Bk. 44 ; 12 L. T. 787 ; 13 W. U. ,,, ,1*^25 3.50,374,380 lottenhara, Ite, Tottenham r. Tottenham, [1896] 1 Ch. 628; Ury L. J. Ch. 549- 74 L. T. 376 ; 44 W. R. .539 ' 314 '•• Byrne, 12 Ir. C. L. R. 376 3G I-ocal Boiiid V. Rowell, 1 Ex. 1). 514; 46 L. J. Q. B. 43'> • 35 L. T. 8S7; 25 W. R. 135 '415 416 Towns I'. :M.ad, 16 C. B. 123; 24 L. J. C. T. 89; 1 Jur. X. S. 355 ... 296,' 371 T.L.A. ,1 1 TABLE OF CASES. Townsend r. Deacon, 3 Ex. 706 ; 18 L. J. Ex. 298; 13 Jur. 30G 291 Townshend v. Townslicnd, 1 Bro. C. C. .550 ; 1 Cox, 28 69. 268, 274 Trevor v. Hutchins, [1896] 1 Ch. 8M ; 74 L. T. 470; 44 W. R. 417 212 , 76L. T. 636 280 Trill V. Lade. See Lade v. Trill Triston, i,'e, 1 L. M. & P. 74 279 Tristram t^. Ilarte, Long. & T. 186 : 3 Ir. Eq. R. 386 331 Trotter?;. Maclean, 13 C. D. 574; 49 L. J. Ch. 256; 42 L. T. 119; 28 W. R. 244 300 Trulock ^•. Robey, 12 Sim, 402 330,334 Trustees, Executors, and Agency Co.. Ltd. v. Short, 13 App. Gas. 793; 58 L. J. P. C. 4; 59 L. T. 677; 37 W.R. 433; 53 J. P. 132 12.34,50,120 Tucker, lie, [1894] 3 Ch. 429; 63 L. J, Ch. 737; 71 L. T. 453 383 Tuckey V. Hawkins, 4 C. B. 655; 16 L. J. C. P. 201; 11 Jur. 919 166 TufncU, Be, 18 T. L. R. 705 282 Tullock v. Dunn, Ry. & M. 416 342,353,383 Tunstall ?;. Bartlett, 14 L. T. 400 233 Turloy -y. Dew, 94 L. T. 216 398 Turner, iie, Turner v. Spencer, 43 W. E. 153 157,181 ©.Bennett, 9 M.&W. 643; 11 L.J. Ex. 453 99 r. Collins, 7 Ch. 329 ; 41 L. J. Ch. 558 ; 25 L. T. 779 ; 20 W. R. 205 257,269,270 ■«. Crisp, 2 Str. 827 363 V. Moon, [1901] 2 Ch. 825; 70 L. J. Ch. 822; 85 L. T. 90; 50 W. R. 237 203 — V. Trelawuey, 12 Sim. 49; 10 L. J. Ch. 249; 5 Jur. 698 269 t?. West Bromwich Union, 9 W. R. 155 ..' 94.95 Turner's Estate, i?e, 11 Jr. Ch. Rep. 304 105 Turney v. Drodwell, 3 E. & B. 136; 23 L. J. Q. B. 137; 18 Jur. 187 378 Tuthill V. Rogers, 1 Jo. & Lat. 36; 6 Ir. Eq. R. 429 ... 10, 118, 141, 146, 148, 149, 151 Twaddle r. Mur^Dhy, S L. R. Ir. 123 53 Twiss r. Noblet, Ir. R. 4 Eq. 64 104, 112, 113 Tynte, Ex parte, 15 0. D. 125 ; 42 L. T. 598 ; 28 W. R. 767 165, 213 T3'son r. Jackson, 30 Beav. 384 173 u. Udal r. Udal, Aleyn, 81 66 Uherstone Guardians v. Park, 53 J. P. 629 413 Underwood V. Lewis, [1894] 2 Q. B. 306; 64 L. J. Q. B. 611 248 Uppington ?■. Tarrant, 12 Ir. Ch. R. 262 177 LTpton r. Else, 5 Moore, 30:! ' 326 Vane r. Vane, 8 Ch. 383 ; 42 L. J. Ch. 299 ; 28 L. T. 320 ; 21 W. E. 6{}, 252 10,303 Veale r. Warner, 1 Wms. Saund. 580 iv^ Vernon's Estate, i?e, [1901] 1 I. R. 1 [[] 37 A'eruon iJ. Vawdrey, 2 Atk. 119 298 Vickers v. Oliver, 1 Y. & C. C. C. 211 ; 11 L. J. Ch. 112 ; 6 Jur. 273 200 Vincent v. Going, 1 Jo. & Lat. 697; 7 Ir. Eq. R. 463 180 V. Willington, Long. & T. 456 197, 329. 357, 358, 363, 369 A'iolett V. Sympson, 8 E. & B. 344 ; 27 L. J. Q. B. 138 ; 6 W. R. 12 ; 3 Jur N.S. 1217 201 Vivian v. Moat, 16 C. D. 730; 50 L. J. Ch. 331 ; 44 L. T. 210; 29 W. R. 504 107 Vowles 1'. Miller, 3 Taimt. 137 43 w. Waddell r. Harshaw, [1905] 1 Ir. 416 170 Waddington i). Naylor, 60 L. T. 4S0 38 Wade's Estate, y.'e. 13 L. R. Ir. 515 318,320 TABLE OF CASES. li PAGE Wainford r. Barker, 1 Ld. Itayin. 2;!'_' 209 Waiomaii '■. Kynman, 1 Ex. 118 ; 16 L. J. Ex. 2o2 377 Waldo i\ Waldo, 12 Sim. 107 ; 10 I;. J. Ch. 312 67 Walker, Be, 7 Ch. 120 ; 41 L. J. Ch. 219 ; 25 L. T. 775 ; 20 W. R. 171 173, 179 V. Butler, G E. & B. 506; 25 L. J. Q. B. 377; 2 Jur. N. S. 687 ... 376 ?;. Clements, 15 Q. B. 1046 246 Wall r. Stanwick. 34 0. D. 763 ; 56 L. J. Ch. 501 ; 56 L. T. 309 ; 35 W. II. 701 30 AV^aller r. Lacy. 1 l^cott N. R. 186 ; 1 Man. & Gr. 54 ; 9 L. J. C. P. 217 ; 4 Jur. 435 344,346 Walsh f. t50uth\vark Borough Council, 72 J. P. 71 395 Walsham *•. Stainton, 12 W. R. 63 243 Walter r. Waterhouse, 2 Wms. Saund. 826 126 t. Yalden, [1902] 2 K. B. 304 ; 71 L. J. K. B. 693 ; 87 L. T. 97 ; 51 W. K. 46 Ill Walters !•. Lidwill, 9 Ir. L. R. 362 166 V. Webb, 5 Ch. 531 ; 39 L. J. Ch. 677 ; 18 W. R. 587 9, 93 Wandsworth Union c. Worthington, [1906] 1 K. B. 420 ; 75 L. .J. K. B. 285; 95L.T. 331; 54W. R. 422; 70 J. P. 191 236,380 Want r. Campain, 9 T. L. R. 254 286 Warburton, £".7; 2j«Tfc, 10 Ir. Eq. R. 206 175 Ward f. Carttar, 1 Eq. 29 ... 31 1-. Ward, 6 Ch. 789 119 Waring (-.Ward, 7 Ves. 332 ... ... 359 Warner v. Jacob, 20 C. D. 220 ; 51 L. J. Ch. 642 ; 46 L. T. Qb^i ; 30 W. R. 731 72 Warren ». Bateman, Fl. & Kelly, 448 ... 47 r. Murray, [1894], 2 Q. B. 648 ; 64 L. J. Q. B. 42 ; 71 L. T. 458 ; 43 W. R. 3 ■ 79,107 Warwick & Worcester Ry. Co., iiVs 27 L. J. Ch. 735 319 Wassell r. Leggatt, [1896] 1 Ch. 554 ; 65 L. J. Ch. 240 ; 74 L. T. 99 ; 44 W. R. 298 275,282 Waterhouse r. Keen, 4 B. & C. 200 389 Waters r. E. of Thanet, 2 Q. B. 757 ; 11 L. .J. Q. B. 87 ; 6 Jur. 708 244 r. Tompkins, 2 CM. &R. 723; 5 L.J. Ex. 61 375 Watkins c. Figg, 11 W. R. 258 221 Watson, He, Stamford Union v. Bartlett, [1899] 1 Ch. 72 ; 68 L. J. Ch. 21 ; 79 L. T. 462 ; 47 W. R. 359 236 V. Birch, 15 Sim. 523; 16 L. J. Ch. 188 ; 11 Jur. 198 ... 164, 313, 315, 316 r. Reid, 1 R. ,5;: M. 236 270 r. Saul, 1 Giff. 188 : 7 W. R. 197 ; 5 Jur. X. S. 404 162 r. Toone, 6 Mad. 153 264 r. Watson, 10 C. B. 3 175 V. Woodman, 20 Eq. 721 ; 45 L. J. Ch. 57 ; 24 W. R. 47 246, 278, 383 Waughr. Cope, 6M. & W. 824; 10 L. .L Ex. 145 375,378 Way i: Bassett. 5 Hare, 55 ; 15 L. J. Ch. 1 ; 10 Jur. 89 222, 383 Weaver, iie, 21 C. D. 615 237 Webb, Be, Lambert r. Still, [1894] 1 Cli. 73 ; 63 L. J. Ch. 145 ; 70 L. T. 318 216 I'. Martin, 1 Lev. 48 202 Webster. £'x parte, W. N. (1866), p. 246 132 r. Kirk, 17 Q. B. 944; 21 L.J. Q.B. 159; 16 Jur. 247 219 V. Southey, 36 C. D. 9 ; 56 L. .L Ch. 785 ; 56 L. T. 879 ; 35 W. R. 622 106 f. Webster. ] Ves. 93 206 Wedge r. Berkeley, 6 A. & E. 663 395 Weldon /•. De Bathe. 14 Q. B. D. 339; 54 L. J. Q. B. 113; .53 L. T. 520; 33 W. R. 328 28!» — r. Xeal, 51 L. T. 289; 32 W. R.828 289,293 r. Xeale. 19 Q. B. D. 394 ; 56 L. J. Q. 15. 621 ; 35 W.R. 820 :!09 Weller r. Toke, 9 East. 364 396 Wells?'. Chelmsford Local Board, 15 C. I). 108: 49 L. J. Ch. 827; 43 L. T. 378; 29 W. J;. 3S1; 45J. P. 6 132 r. Watling, 2 W. Bl. 1233 202 Wenhaui, Ite, Hunt /•. VVenham, [1892] 3 t'li. 59 ; 61 L. J. Ch. 565 ; 67 L. T. 648 ; 40 W. R. 636 211 AVest, AV, 3 L. R. Ir. 77 331 v. Downman, 14 C. 1). Ill ; 42 L. T. 340; 29 W. R. 6 415 West Derby Local Board r. Bell, 42 J. !'. 812 414 lii TABLE OP CASES. PAGE Westropp r. Public Works Commissioners, [1896] 2 I. K. 93 413 West Ham Local Board r. Maddams, 33 L. T. 809 415 . Union v. St. Matthew, Bethnal Green, [1896] A. C. 477 : 65 L. J. M. C. 201 ; 75 L. T. 286 ; 60 J. r. 740 233 West Leigh Colliery Co. r. Tuunicliffe & Hampson, Ltd., [1908] A, C. 27; 77 L. J. Ch. 102 ; 98 L. T. 4 205 Whallev ^'. Whalley, 3 Bligh, 1 297 Whatman v. Pearson, L. K. 3 C. P. 422; 37 L. J. C. P. 156; 18 L. T. 290; 16W. R. 649 394 AVheatcroft v. Matlock Local Board, 52 L. T. 356 395 Wheeler c. Howell, 3 K. & J. 198 180 Whippy r. Hillary, 3 B. & Ad. 399 ; 1 L. J. K. B. 178 349 Whitcombe ^'. Whiting, Dougl. 652 353,381 1-. Steere. 19 T. L. E. 697 350 White 1). Colson, 46 J. P. 565 229 c. Hillacie, 3 Y. & C. Ex. 597 ; 4 Jur. 102 384 Whitehead V. Howard, 2 Br. & B. 372 340 tj. Lord, 7 Ex. 691 ; 21 L. J. Ex. 239 248 T. Walker, 9 M.&W. 506; 11 L.J. Ex. 168 218 Whitehouse -y. Abberley, 1 C. & K. 642 341 V. Fellowes, 10 C. B. N. S. 765 ; 30 L. J. C. P. 305 ; 4 L. T. 177 ; 9W.R. 557 203,204,399 Whitfield r. Bewit, 2 P. Wms. 240 66 Whitley v. Lowe, 2 De G. & J. 704; 6 W. R. 819; 4 Jur. N. S. 815 ... 358, 359 Whitmore v. Humphries, L. R. 7 C. P. 1 ; 41 L. J. C. P. 43; 25 L. T. 49*!; 20W. E. 79 108,109 Whittou t;. Peacock, 3 My. & K. 325 93 Whitwham r. Watkin, 78 L. T. 188 283 Widdowson v. Earl of Harrington, 1 Jac. & W. 532 79 Wilby V. Elgee, L. R. 10 C. P. 497 ; 44 L. J. C. P. 254 ; 32 L. T. 310 ... 850 t^ Henman, 2 C. & M. 658 : 4 L. J. Ex. 282 4 Wilkes t'. Greenway, 34 Solicitors' Journal, 673 117 V. Hungerford Market Co., 2 Biug. N. C. 281 ; 2 Scott, 446 ; 5 L. J. C. P. 23 400 Wilkinson!'. Proud, 11 M. & W. 33 IS V. Verity, L. R. 6 C. P. 206 ; 40 L. J. C. P. 141 : 34 L. T. 32 ; 19 W. R. 604 224 ?•. Wilkinson, 9 Hare, 204 237 Williams, lie, Davies v. Williams, 34 C. D. 558; 56 L. J. Ch. 123 ; 55 L. T. 633 ; 35 W. R. 182 51 .Be, Williams v. Williams, [1897] 2 Ch. 12; (JG L. J. Ch. 485; 76 L. T. 600: 45 W.E. 519 71,72 r. Bartholomew, 1 B. & P. 327 126 — • I'. Duke of Bolton, 3 P. Wms. 268 66 r. Burgess, 12 A. & E. 635 412 V. Golding, L. E. 1 C. P. 69; 35 L. J. C. P. 1 ; 13 L. T. 29 ; 14 AV. E. 60 ; 11 Jur. N. S. 952 390 V. Griffith, 3 Ex. 335 ; 18 L. J. Ex. 210 344, 346, 347 V. Griffiths, 2 C. M. & E. 45 ; 4 L. J. Ex. 129 378 ■ t;. Gun, Fortescue, 177 326 r. Jones, 13 East, 439 265 1'. Mersey Docks, etc.. Board, [1905] 1 K. B. 804; 74 L. J. K. B. 481 ; 92 L. T. 444 ; 53 W. E. 488; 69 J. P. 196 400 I'. Pott, 12 Eq. 149; 40 L. J. Ch. 775 114 r. Welch, 3 Dowl. & L. 565 167 Williamson v. Barbour, 9 C. D. 529 ; 50 L. J. Ch. 147 ; 37 L. T. 698 • ... ... 216 ■ I'. Naylor, 3 Y. & C. Ex. 208 158 Willins V. Smith, 4 E. & B. 180 ; 24 L. J. Q. B. 62 ; 3 W. R. 22 ; 1 Jur. N. S. 163 342,352 Willis V. Earl Beauchamp, 11 P. D. 59 ; 55 L. J. P. 17; 54 L. T. 185 ; 34 W. E. 357 169 V. Earl Howe, [1893] 2 Ch. 545 ; 62 L. J. Ch. 690 ; 69 L. T. 358 ; 41 W.E. 433 12,120,302,303,306 V. Earl Howe. See lie Jennens Wilmott r. Barber, 15 C. D. 96; 43 L. T. 95 ; 28 \Y. E. 911 253 TABLE OF CASES. liii Wilson, Ex parte, 1 Mont. D. & De. G. 586 r. Mayor of Bolton. L. E. 7 Q. B. 105 ; 41 L. J. M. C. 4 ; 25 L. T. 397; 20 AY. R. 246 r. Mayor of Halifax, L. R. 3 Ex. 114; 37 L. J. Ex. 44 ; 16W. R. 707 V. Mackay, 5th Ser. Sess. Cas. VII., 168 r. Walton & Kirkdale Building Society. 19 T. L. R. 408 Wilton r. Hill, 25 L. J. Ch. 156 Winchelsea Causes, 4 Burr. 1962 ... Winder, Ex parte, 6 C. D. 696 ; 46 L. J. Ch. 572; 25 W. R. 768 Wirrall Highway Board v. Newell, [1895] 1 Q. B. 827; 64 L. 72L. T. 535"; 43 W. R. 328; 59 J. P. 183 Wiltersheim i\ Countess of Carlisle, 1 H. Bl. 631 Wolmershausen, Be. 69 L. T. 541 ; 38 W. R. 537 r. Gullick, [1893] 2 Ch. 514 ; 68 L. T. 753 Wood i\ Joues, 61 L. T. 551 ^ Wood 17. Penoyre, 13 Ves. 333 Woodcock f. Titterton, 12 W. R. 865 M oodhouse v. Walker, 5 Q. B. D. 404 ; 49 L. J. Q. B. 6U9 ; 42 L. T. 770 ; 28 W.R. 765; 44 J. P. 666 V. Woodhouse, 8 Eq. 514 ; 38 L. J. Ch. 481 ; 20 R. 583 Woolley r. Clark, 5 B. & A. 744 Wordsworth v. Harley, 1 B. & Ad. 391 ; 9 L. J. O. S. M. C. 50 Worssam r. Vandenbrande, 17 W. R. 53 ... Worthington v. Grimsditch, 7 Q. B. 479 ; 15 L. J. Q. B. Wortley v. St. Mary, Islington, 51 J. P. 166 Wright v. Chard. 4 Drew. 673 ; (App.) 1 D. F. & J. 567 L. T. 104 ; 8 W. R. 334 ; 6 Jur. X. S. 476 V. Vanderplank, 8 D. M. & G. 133 ; 4 W. R. 410 Wrixon v. Vize, 3 Dr. & War. 104 ; 5 Ir. Eq. R. 173 ; 2 Con. & Law. 138 Wryght, Ex parte. See G. W. Railway Co., Be AVych I'. E. Indian Co., 3 P. Wms. 309 Wycombe Union r. Eton Union, 1 H. & N. 687 ... Wynne ?'. Styan, 2 Ph. 303 PAGE 346 414 17 L. T. 660 ; 392 390 330 261 407 132, 133 J. M. C. 681 ; 229 238 349, 355, 382 235 247 170 47 . 228 L. T. 209 ; 17 W. 274 51, 206 201, 399 ... 12 377, 381 415 29 L. J. Ch. 415 ; 2 188 269 9. 321 10 Jur. 26 79 376 87 Yardley r. Holland. 20 Eq. 428 ; 33 L. T. 301 74 Ydun, The, [1899] P. 236 ; 68 L. J. P. 101 ; 81 L. L. 10 ; 8 Asp. M. C. 551 391, 397 Young y. Harris, 65 L. T. 45 30,261 V. Lord Waterpark, 13 Sim. 199; 15 L. J. Ch. 63; 10 Jur. 1 161 r. Wilton, 10 Ir. Eq. R. 10 161 z. Zouche V. Dalbiac, L. R. 10 Ex. 172; 44 L. J. Ex. 109; 33 L. T. 221 ; 23 W.R. 564 , 24,25 TABLE (3F STATUTES. [Statutes atid sections marked with an asterisk arc repealed. See the Aiipendix for page-references in the case of statutes which are printed there.] PAGE 20 Hen. o. (Statute of Merton, 1235), c. 1 * 174 4 Ed. 3, c. 7. (Survival of Trespass to Tersonal Estate, 1.330) ... 226 1 Ric. 2, e. 12. (Liability for Escape of Debtor, 1377)* 197 4Hen. 7, c. 24. (Statute of Fines, 1488) * 6 31 Hen, 8, c. 13. (Dissolution of Monasteries, 1539)*— s. 21 (Exemption from Tithes) 20 32 Hen. S, c. 2. (Limitation on Eeal Actions, 1540) * ... ... 0,116 37 Hen. 8, c. 12. (Tithes in City of London, 1545) 21. 26 ISEliz., c.lO. (Disabling Statute, 1571) 19,105 31 Eliz., c. 5. (Limitation on Penal Actions, 1588) — s. 5 419 (App.) 21 Jac. 1, c. 2. (Limitation on Crown suits, 1023) * 140 c. 4. (Pleadino-, etc., in Penal Actions, 1023) — s. 3 241 s. 4 4 c. 14. (Pleading against Crown, 1023) 420 (App.) c. 16. (Limitation Act, 1623)— s. 1* 6,11,116 ss. 3, 4, 7 421 (App.) 10 Car. 1, sess. 2, c. 6. (Ir.) (Limitation in Simple Contract and Tort. 1635) * 197, 246 15Car. 1, c. 1. (Ir.) (Pleading against Crown, 1040) 142 29 Car. 2, c. 3. (Statute of Frauds, 1677)— s. 4 344 3 Will. & Mary, c. 14. (Statute of Fraudulent Devises, lOlJl) *— 8.2 370 7 k 8 Will. 3, c. 3. (Treason Act, 1095)— s. 5 403 ;t & 10 Will. 3. c. 32. (9 Will. 3, c. 3."'), in Pevised Statutes) (lilasphemv, 1697)— 8.2 403 4 Anne, c. 10. (4 & 5 Anne, c. 3, in Kevised Statutes, 1705) — s. 16 (Entry and Continual Claim) -^ 11 ss. 17, 18 (Limitation on Seamen's wages) ... 422 (App.) s. 19 (Defendant Abroad) „ „ 6Anne, c. 10. (Ir.) (1707, corresponded to 4 Anne, c. 10)* ... 197,245 7Anne, e. 21. (Treason Act, 1 70S) 403 1 Geo. 1, Stat. 2, c. 5. (Riot Act, 1714)— s. 8 403 8Geo. l,c. 4. (Ir.) (Limitation on Specialty Debts, 1721)* 197 2 Geo. 2, c. 22. (Set-ofF, 1729) *— 8. 13 245 4 Geo. 2, c. 28. (Landlord and Tenant Act, 1730) 8. 5 22 5 Geo. 2, c. 30. (Bankruptcy, 1732) *— 8.23 213 8 Geo. 2, c. 24. (Set-oflF, 1735) *— ss. 4, 5 245 Ivi TABLE OF STATUTES. PAGE OGeo. 2, c. 36. (Charitable Uses Act, 1735) * 74 13 Geo. 2, c. IS. (Certiorari, 1740) *— s. 5 409 16 Geo. 2, e. 31. (Prison (Escape) Act. 1742)— 8.4 404 9Geo. 3, c. 16. (Crown Suits Act, 1769) 423 (App.) 13 Geo. 3, c. 78. (Highway Act, 1772) *— s. 81 399 32 Geo. 3, c. 58. (Limitation on Quo warranto, 1792) * — 88.1,2 407,408 35 Geo. 3, c. 125. (Heir Apparent's Establishment Act, 1795) — ss. 7, 9 226 39 & 40 Geo. 3, c. xlvii. (London Dock Act, 1800)— s. 151 399 43 Geo. 3, c. 51. (Land Tax Redemption Act, 1803) — s. 123 27 47 Geo. 3, 0. 74. (Liability of Lands of Deceased Trader, 1807)* ... 370 48 Geo. 3, c. 47. (Crown Claims Limitation (Ireland) Act, 1808) 428 (App.) 53 Geo. 3, c. 127. (Ecclesiastical Courts Act, 1813) — s. 5 * 292 59 Geo. 3, c. 12. (Poor Relief Act, 1819)— s. 17 42 60 Geo. 3 & 1 Geo. 4. c. 1. ' (Unlawful Drilling Act, 1819)— s. 7 404 I & 2 Geo. 4, c. 24. (Treason (Ireland) Act, 1821) 403 7 Geo. 4, c. 57. (Bankruptcy, 1826) * 343 9 Geo. 4, c. 14. (Statute of Frauds Amendment Act, 1828) ... 432 (App.) c. 69. (Night Poaching Act, 1828)— s. 4 404 II Geo. 4&1 Will. 4, c. 40. (Executors Act. 1830) 74,169 llGeo.4&lWill.4, c. 47 (Debts Piecoverv Act, 1830) 370 1 & 2 Will. 4, c. 32. (Game Act, 183*1) 392, 402 c. 4L (Special Constables Act, 1831) 401 2 & 3 Will. 4. c. 100. (Tithe Act, 1832) 19,20,27 3 & 4 Will. 4, c. 15. (Dramatic Copyright Act, 1833) .... 241 c. 27. (Real Property Limitation Act, 1833) 433 (App.) c. 42. (Civil Procedure Act, 1833) ... 444 (App.) 0.74. (Fines and Recoveries Act, 1833) 7 c. 104. (Administration of Estates Act, 1833) 371 c. 105. (Dower Act, 1833) 175 5 & 6 Will. 4, c. 50. (Highway Act, 1835) 392,398,401 6 & 7 Will. 4, c. 71. (Tithe Act, 1830)— s.Sl 175 7 Will. 4 & 1 Vict. c. 28. (Real Property Limitation Act, 1837) 446 (App.) 1 Vict. c. 78. (Municipal Corporations Act, 1837) * — s. 23 408 1 & 2 Vict. c. 110. (Judgments Act, 1838)— 8. 17 179 3 & 4 Vict. c. 105. (Debtors (Ireland) Act, 1840)— s. 22 165 s. 26 179 s. 31 227 s. 32* 165,197 c. 113. (Ecclesiastical Commissioners Act, 1840) — s. 57 13 5 & 6 Vict. c. 97. (Limitation of Actions and Costs Act, 1842) 387, 401, 402 6 & 7 Vict. c. 54. (Limitation of Actions Act, 1843) 14,444 c. 73. (Solicitors Act, 1843)— 8.37 249 c. 91. (Charitable Loan Societies (Ireland) Act, 1843) 375, 417 TABLE OF STATUTES. Ivii I'AfJE 7 & 8 Yict. c. c. 2i». 90. 8 & 9 Yict. c. 0. c. 105, liJ. 18. (Night Poaching Act, 1 844) 404 (Judgments (Ireland) Act, 1844)— S.39* 197 (Duchy of Cornwall Act, 1844) 152 (Companies Clauses Act. 1845) 195 (Lands Clauses Act, 184.1) 380,411 s. 22 417 ss. 76, 77 131 ss. 78,79 132 c. 20. (Railways Clauses Act, 1845) — 83.20,22 176 s. 140 417 c. 118. (Inclosure Act, 1845) 410 9 & 10 Yict. c. 93. (Fatal Accidents Act, 1846) 228,400 10 Yict. c. 17. (Waterworks Clauses Act, 1847)— ss. 74, 85 417 11 & 12 Yict. c. 12. (Treason Felony Act, 1848)— s. 4 403 c. 43. (Summary Jurisdiction Act, 1848) — s. 11 413,414,416 s. 36 240 c. 44. (Justices' Protection Act, 1818) 390. 392, 395, 396, 898, 401 c. 63. (Public Health Act, 1848) * 390,414 s. 69 159 12 & 13 Vict. c. 92. (Cruelty to Animals Act, 1849) 392 s. 14 412 c. 103. (Poor Law Amendment Act, 1849) — 8.13 410 s. 16 236 13 & 14 Yict. c. 29. (Judgment Mortgage (Ireland) Act. 1850)— s. 7 165,166 c. 88. (Fisheries (Ireland) Act, 1850) 413 14 & 15 Yict. c. 93. (Petty Sessions (Ireland) Act, 1851) 413 15 & 16 Yict. c. 76. (Common Law Procedure Act. 1852) — 8.210 177 16 & 17 Yict. c. 51. (Succession Dutv Act, 1853) — s. 42 ...' 163 c. 113. (Common Law Procedure (Ireland) Act, 1853)— 8.3 432 ss. 20-27 447 (App.) s. 28 310 18 & 19 Yict. c. 120. (^letropolis Management Act, 1855) 415 s. 105 416 c. 122. (Metropolitan Building Act, 1855) *— s. 108 390,392,398 19 & 20 Yict. c. 97. (Mercantile Law Amendment Act, 1856) — s. 5 235 ss. 9-14 449 (App.) 20 & 21 Yict. c. 77. (Court of Probate Act, 1857) 168 21 & 22 Yict. c. 72. (Landed Estates Court (Ireland Act), 1858)— s. 62 318 c. 98. (Local Government Act, 185S) * 414 22 & 23 Yict. c. 49. (Poor Law (Payment of Debts) Act, 18.VJ) 232 23 & 24 Yict. c. 38. (Law of Property Amendment Act, I860)— 88.13,15 451 (App.) 23 & 24 Yict. c. 53. (Duchy of Cornwall (Limitation of Actions) Act, 1860) 153 0. 127. (Solicitors Act, 18(;0)— 8.28 210,249 24 & 25 Vict. c. 62. (Crown Suits Act, 1861) 452 (App.) c. 96. (Larceny Act, 1861) 391,392,394,402 H. 102 242 s. 113 ♦ 394 25 & 26 Yict. c. 89. (Companies .\ct, 1862) — s. 16 lO."), 196 H. 9.S 319 Iviii TABLE or STATUTES. PAGE 25 & 26 Yict. c. 102. (Metropolis Management Amendment Act, 1862) 392, 415 s-^o* 41(5 s. 85 " ... ... ... ... ... ... ... 417 s.lOfi* 391,415,416 s. KIT 416,417 26 & 27 Vict. e. 118. (Companies Clauses Act. 1863) 19,-, 27 & 28 Viet. c. 112. (Judgmints Act, 1864) "' iqI 28 & 29 Yict. c. 1 04. (Crown Suits Act, I860)— fs. 8, 10 240 31 & 32 Yict. c. 125. (I'arliamentary Elections Act, 1868)— 8.6 405 32 & 3.-! Yict. c. 67. (^'aluat^ou of Property (Metropolis) Act, 1869) — s. 40 411 33 & 34 Yict. c. 23. (Forfeiture Act, 1870) 140 c. 65. (Larceny (Advertisements) Act, 1870) ... 242 34 Yict. c. 22. (Liuiacy (Ireland) Act, 1871) — s. 05 " 237 34 & 35 Yict. c. 70. (Local CTOvernment Board Act, 1871)— s. 2 410 36 & 37 Yict. c. (S6. (Judicature Act, 1873)— s-24(3) 208,245 s. 25(2) 68 S.26 407 .37 & 38 Yict. c. 35. (Statute Law itevision Act, 1874) 14,443 c. 57. (Real Property Limitation Act, 1874) 454 (App.) c. 88. (Births and Deaths Registration Act, 1874)— s. 46 404 38 & 30 Yict. c. 55. (Public Health Act, 1875)— s. 144 402 s. 156* 417 s. 257 159,414,416 8.261 41.-i s. 264 390,392 c. 77. (.Judicature Act, 1875) — s. 16 9 c. 87. (Land Transfer Act, 1875)- — ss. 7, 8, 18, 21*, 30, 32, 33 134-138 39 & 40 Yict. c. 36. (Customs Consolidation Act, 1876) — s. 257 404 c. 37. (Nullum Tempus (Ireland) Act, 1876) 458 (App.) 41 & 42 Yict. c. 77. (Highways and Locomotives (Amendment) Act, 1878) — ss. 23, 36 229 42 & 43 Yict. c. 19. (Habitual Drunkards Act, 1879) 401 c. 59. (Civil Procedure Acts Repeal Act, 1879) ... 199, 443 43 Yict. c. 1. (Seed Supply (Ireland) Act, 1880) ' 195 43 & 44 Yict. c. 42. (Employers' Liability Act, 1880)— «.i 250 44 & 45 Vict. c. 41. (Conveyancing and Law of Property Act, 1881) — 8. 2 (iii.) 16 s. 44 22,27 c. 58. (Army Act, 1881) 392,398,401 c. 59. (Statute Law Revision Act, 1881) ^.. 174 45 & 46 Yict. c. 14. (Metropolis IManagement, etc., Amendment Act, 1882) — s. 13 417 c. 38. (Settled Land Act, 1882)— s. 2(10)(i.) 16 c. 50. (Municipal Corporations Act, 1882)— s. 47 411 ss. 73, 88 406 s. 219 404,412 s. 225 408 c. 61. (Bills of Exchange Act, 1882) 217 c. 75. (Married Women's Property Act, 1882) ... 275, 380, 381 s. 1 (2) 289.293 TABLE OF STATUTES. lix 46 &- 47 Vict. c. 51. (Corrupt and Illegal Practices Prevention Act, 1883) — ss. 40, 51 405 c. 52. (Bankruptcy Act, 1883) — s. 6 218 s. 87(3) 318 c. 57. (Patents, Designs, and Trade Marks Act, 1883)* ... 241 [now Patents and Designs Act, 1907 (7 Ed. 7, c. 29)] 47 & 4S Vict. c. 70 c. 71 48 & 59 Vict. c. 49. c. 69 49 &50 50 & 51 Vict. c. 28. 51 Vict. 51 & 52 c. 59. c. 3. Vict. c. 17. c. 41. c. 42. c. 43. c. 51. c. 52. 0. 59. 292, 405, .57 Vict. .57 & 58 59 & 60 f;0& (;i (Municipal Elections (Corrupt and Illegal Practices) Act, 18S4)— ss. 30, 35 ... (Intestates' Estates Act, 1SS4) (Submarine Telegraph. Act, 1885) ... (Criminal Law Amendment Act, 1885) — s. 5 c. 73. (Purchase of Land (Ireland) Act, 1885) 317 [and see Land Law (Ireland) Act. 1890 (59 & 60 Vict. c. 57)] Vict. c. 54. (Extraordinary Titlie Kedemption Act, 188G) (Merchandise 3Iarks Act, 1887) — s. 15 (Statute Law Revision Act, 1887) (Statute Law Revision Act, 1888) (Copyright (Musical Compositions) Act, 1888) (Local Governmeut Act, 1888) — s. 75 (Mortmain and Charitable Uses Act, 1888) (County Courts Act, 1888)— ss. 49, 138 (Land Charges Registration and Searches Act, 1888)... (Public Health (Buildings in Streets) Act, 1888) (Trustee Act, 1888)— s. 8 (J9, 188, 229, 240, 255, 263, 272, 280, (Customs and Inland Revenue Act, 1889)— - s. 12 s. 13 s. 14 (Lunacy Act, 1890)— 8. 299 (i.) (Dii-ectors' Liability Act, 1890)— 8.3 (Tithe Act. 1891) (Stamp Act, 1891)- s. 14(4) (Local Registration of Title (Ireland) Act, 1891) (Statute Law Revision Act, 1891) (Public Healtli (London) Act, 1891)— 8.5(9) 8.11 (Private Streets Works Act, 1892)— s. 12 (Trustee Act, 1893)— 8. .JO (Public Authorities Protection Act, 1893) 5, 387, 407, 410, (Local Government Act, 1894) — 8.48 405, (Army Annual Act, 1894) (Finance Act, 1894)— s. 8(2) KM. 8.9(1) (Statute liuw Revision Act, 1894) (Merchant Slapping Act, 1894) - 8. I7S 8.683 (I) (Truck Act, 1896)— K. 4 (Police (Property) Act, 1.S97) 52 Vict. c. 7 53 & 54 Vict. c. 5. c. 64. 54 Vict. c. 8. 54 & 55 Vict. c. 39. c. G6. c. 67. c. 76. 55 & 56 Vict. c. 57. 56 & 57 Vict, c. 53. c. 61. c. 3. Vict iO. c. ;)(;. c. 6(t. Vict. Vict. (1. :;o. 405 169 401 404 318 176 404 408 409 241 406 35 9 165 417 2'.»9 163 226 227 236 241 176 345 117 14 417 415 414 72 412 406 401 2l>6 164 401 245 412 250 213 Ix TABLE OF STATUTES. 60 & 61 A'ict. c. 65. (Land Transfer Act, 1897)— s. 2(1) 74 s. 7(7) 225 s. 12 133-138 61 tt 62 Yict. c. 29. (Locomotives Act, 1898) 400 s. 12 ... ... ... ... ... ... ... 229 63 & 64 Vict. c. 48. (Companies Act, 1900)— s. 5 241 1 Edw. 7, c. 22. (Factory and Workshop Act, 1901)— ss. 135, 146 412 6 Ed. 7, 0. 28. (Crown Lands Act, 1906) — S.9 459 (App.) c. 58. ("Workmen's Compensation Act, 1906) — s. 2 ... ... ... , , 250 8 Ed. 7, c. 28. (Agricultural Holdings Act, 1908)^ s. 28 175 c. 48. (Post Office Act, 1908)— s. 70 404 ADDENDA ET COEEIGENDA. Page 14, line 3 ab infra, for " c. 44 " read " c. 54." „ 27, line 5, for " 1802 " read " 1803." „ 72, line 8, for " Evans " read " Eames.'' „ 210, Be Bruce, on appeal, is now reported, [1908, 2 Ch. 682]. „ 245, line 13 ab infra, for "arises" read "arose." The Statutes of Set- off are repealed. „ 246, line 6, for " c. 9 " read " c. 6." „ 249, line 21, for •' 1862 " read " 1860." „ 252, line 5. for " 6 H. L." read " 5 H. L." THE TIME LIMIT ON ACTIONS. INTEODUCTION. (1) Polici/ of tJtc Statutes of Limitation. The policy of fixing a period of limitation for actions has long The object of been incorporated in the statute law, the chief of the existing st'vtutesof statutes being the Real Property Limitation Acts, 1833 and 1874 (land, rent-charges, and charges on land), the Limitation Act, 16'23 (simple contract and tort), and the Civil Procedure Act, 1833 (specialty debts). " All Statutes of Limitation," said Lord St. Leonards in Trustees of Dundee Harbour v. Dougall (1852), 1 Macq. H. L. p. 321, "have for their object the prevention of the rearing up of claims at great distances of time when evidences are lost, and in all well-regulated countries the quieting of possession is held an important point of policy " : see per Lord Kedesdale in Cholmondelcy v. Clinton (1821), 4 Bligh, p. 100; per Wood, V.C, in Manhy v. Bcwieke (1857), 3 K. & J. p. 352. Lord Kenyon described the Statutes of Limitation as "statutes of repose" (see per Dallas, C.J., in Tolson v. Kaye (1822), 3 Br. & B. p. 223); and Bramwell, B., spoke of them collectively as "a statute of peace": Hunter \. ( I ibbo ns {185G), 20 L. J. Ex. p. 5. And this is the prevailing view, though occasionally intimations of a contrary opinion are to be found. In lie Jlaher (1890), 44 C. D. p. 270, Cotton, L.J., went so far as to say that the plea of the statute was never looked upon with any favour; and in Stamford, etc., Banlcinr/ Co. v. SmitJi, [1892] 1 Q. B. 705, Lindley, L.J., spoke of the case before the Court as " one of the few cases in which the Statute of Limitations comes In aid of an honest defence." Sometimes, no doubt, the statute may be used to defeat a debt clearly due, and to sucli cases these last observations may bo referred. But as to the general utility of fixing a period to 1 litigation — especially when the title to real estate is in question ' — there is probably no dilference of opinion. The grounds upon " T.L.A. B THE TIME LIMIT ON ACTIONS. [INTROD. whicli this policy is based were well stated by Plumer, M.E., in his judgment in Cholmondeley v. Clinton (1820), 2 Jac. & ^V. p. 140: "The public have a great interest in having a known limit fixed by law to litigation, for the quiet of the community, and that there may be a certain fixed period, after which the possessor may know that his title and right cannot be called in question. It is better that the negligent owner, who has omitted to assert his right within the prescribed period, should lose his right, than that an opening should be given to interminable litigation, exposing parties to be harassed by stale demands, after the witnesses of the facts are dead, and the evidence of the title lost. The individual hardship will, upon the whole, be less, by withholding from one who has slept upon his right, and never yet possessed it, than to take away from the other what he has long been allowed to consider as his own, and on the faith of which the plans in life, habits, and expenses of himself and his family may have been unalterably formed and established — vigilantihiis ct non dormicntibus lex succurrit." Moreover, reliance is continually placed on the statute for the purpose of vesting the legal estate in the owner of land for the time being. In O'Connor V. Foleif, [1906] 1 I. E. 20, C. A., Holmes, L.J., observed (p. 39) that in Ireland the titles of small occupiers of leasehold land were generally dependent on the statute, since they did not take out administration to their predecessors. Construction of the statutes. (2) Construction of the Statutes. The Statutes of Limitation being thus generally approved as incorporating a principle of great benefit to the community-, it has sometimes been said that they ought to receive a liberal construction : see Kingy. Walker (1760), 1 W. Bl. p. 287; Tolson V. Kaye (1822), 3 Br. & B. p. 223; Lafond v. liuddovk (1853), 13 C. B. p. 820 ; and, in consequence, that the exceptions to the statutes should not be extended further than is necessary r Perry v. Jackson (1792), 4 T. Pi. p. 519. But it may be doubted whether there is any such rule of construction. A Statute of Limitation, like any other statute, must be interpreted in accordance with the fair meaning of the language used, and a litigant who relies upon it must bring his case within its terms as so interpreted. " I should be very unwilling," said Lord Cran- worth, C, in Eoddam v. Morlcy (1857), 1 Be CI. & J. p. 23, ''to IN TROD.] PLEADING THE STATUTE. o give encouragement to the notion that there is of necessity any- thing morally wrong in a defendant relying on a Statute of Limitation. It may often be a very righteous defence. But it must be borne in mind that it is a defence the creature of positive law, and therefore not to be extended to cases which are not strictly within the enactment." Though founded, indeed, on considerations of public policy, the statute may bear hardly in individual cases, and the Court, before holding a claim to be barred by lapse of time, must see clearly that the statute applies. The several Statutes of Limitation are in imri materia, and should as far as possible receive the same construction : Mnrm;/ V. East India Co. (1821), 5 B. & A. p. 21.5. (3) Pleading the Statute. Some statutes, such as the Pieal Property Limitation Acts, when statute 1833 and 1874, so far as they apply to real estate, operate by X^adetl extinguishing the for mer owner's title ; others, as the Limitation Act, 1623, b ar his ri ght of action onl}-, but leave his substantive right intact, so that he is at liberty to avail himself of it by any means which do not require him to take proceedings to enforce it. This distinction has an important result as regards pro- cedure. When a i)]aintiff is seeking to assert a title which has been extinguished by the statute, the defendant is not bound to plead the statute in his defence ; when, on the other hand, the plaintiff's remedy only is barred, the defendant cannot set up the statute unless he has specially pleaded it. " The necessity to plead a Statute of Limitations applies to cases where the remedy only is taken away, and in which the defence is by way of confession and avoidance ; not where the right and title to the tiling is extinguished and gone, and the defence is by denial of that right " : per Patteson, J., in Dc Beauroir v. Onrn (1850), 5 Ex. p. 177 ; He Ihirrje : (Jillard v. Laicrenson (1887), 57 L. T. 3G4. Hence the defendant in an action for recovery of land need Action to not plead the statute ; it is sufficient for him to plead that he is '"^^o^®^" i'^^^^- in possession (Pi. S. C, 1883, Ord. 21, r. 21), and under such a plea he can take advantage of any defect in the plaintiff's title due to the operation of the statute : see Jleatli v. Piuik (1881), Q. B. B. p. 353, C. A. It is for the plaintiff to prove a title which has not been extinguished by the statute : JJan-hins v. Penrhi/n THE TIME LIMIT ON ACTIONS. [INTEOD. Other actions. Effect of pleading- the statute. Plea uf the general issue. (1878), 4 App. Cas. 51 ; and if the statute has apparently run he must allege any special matter, such as an acknowledgment, upon which he relies to exclude it. As to the particularity with which he must allege his title, see Pldlipps v. PJdUpps (1878), 4 Q. B. D. 127, C. A. ; Darhi/shire v. Lcifih, [1896] 1 Q. B. 554, C. A. ; and as to the plea of possession, see Danford \. McAnultij (1883), 8 App. Cas. 450. In cases other than claims to recover land and rent-charges, and except, perhaps, in penal aqtions {iufva, p. 240), the statute must be pleaded : E. S. C, 1883, Ord. 19, r. 15 ; and equally so when the defendant seeks to limit the period of an account : RocU V. Callen (1848), 6 Hare, 531. It seems to be sufficient to plead " the Statute of Limitations " generally, and the defendant can then rely upon the particular statute applicable to his case : Adams v. Barry (1845), 2 Coll. 285, p. 293. But a direction to the contrary is given in the form of defence in the Appendix to the K. S. C. (App. D. sect. 4, General Defences, 11), and it is better to plead the particular statutory provision. This is unnecessary, however, in the County Court where the general plea of "a Statute of Limitations" is expressly prescribed: C. C. E., 1903, Ord. 10, r. 14, Form 85 ; see Eaton v. Tapleij, [1899] 1 Q. B. 953. And as to pleading the statute, see Bullen and Leake, Precedents of Pleading, Gth ed. pp. 717 ct scqq., pp. 873 ct scqq. The effect of a plea of the statute is to admit the plaintiff's original right to sue, but to allege that the remedy has been lost by lapse of time : ScarpelUnl v. Atchcson (1847), 7 Q. B. p. 878 ; see Margctts v. Bays (1836), 4 A. & E. 489. And the burden of disproving this allegation is on the plaintiff. This he may do by proving that the cause of action arose within the statutory period, or that the action has been kept alive by acknowledg- ment, or part payment, or that the period must be extended in consequence of disability or concealed fraud : Hurst v. Parker (1817), 1 B. & A. 92 ; Bcalc v. Nind (1821), 4 B. & A. p. 571 ; Wilby V. Henman (1834), 2 C. & M. 658. But he should not anticipate the defence by alleging a reason for excluding the statute in the statement of claim : Hollis v. Palmer (1836), 2 Bing. N. C. p. 717. The usual i)lace for any such matter is in the reply : see Bullen and Leake, Precedents of Pleading, 6th ed. pp. 723 et seqq., infra, p. 325. By 21 Jac. 1, c. 4, s. 4, it is provided that the general issue may be pleaded in an action on a penal statute, and that any INTKOD.] PLEADING THE STATUTE. special matter — which includes the Statute of Limitations — may be given in evidence under such plea. The right to use this plea is preserved by the E. S. C, 1883 : see Ord. 19, r. 12 ; Ord. 21, r. 19; and it seems, therefore, that in such a case it is not necessary to plead the Statute of Limitations specially : 2 Wms. Saund., notes to llodsdeii v. llarridgc, p. 1G2 ; Earl Spencer v. Stvannell (1838), 3 M. & W. 154. Formerly many statutes fixed a special limitation for actions brought against persons acting in pursuance of them, and allowed the limitation to be set up under a plea of the general issue : see Bailei/ v. Warden (1815), 4 M. & S. p. 407 ; but as regards such cases the plea is in practice abolished by the Public Authorities Protection Act, 1893 {infra, Chap. VIIL), and a defendant relying on the six months' limitation of that statute must plead it. CHAPTER I. LAND AND EENT-CHAEGES. Law befure 1833, Abolition of the old doctrine of adverse possession. Section I. — General Eule of Limitation. (1) Adverse Possession nnder Old Laic. Prior to the year 1833 a right to recover land might be barred either by the Statutes of Limitation (32 Hen. 8, c. 2, which barred real actions, such as the writ of right and novel disseisin, and 21 Jac. 1, c. 16, which barred ejectment), or by the opera- tion of the Statute of Fines (4 Hen. 7, c. 24). The Statute of Tines both barred the remedy and extinguished the right ; the Statutes of Limitation only barred the remedy: Hunt \. Burn (1702), 2 Salk. 422. The statute of James, to which recourse was usually had, imposed a limitation of tv,'enty years upon the right of entry — and therefore upon ejectment, which assumed a right of entry — the period running from the time when the right first accrued. The right of entiy was held to accrue so soon as there was an adverse possession — that is, a possession inconsistent with the title of the true owner — but in practice there was difficulty in deciding when possession was adverse in this sense. Moreover, the operation of the statute was restricted by technical rules which settled that in certain cases the possession, though held without title, was not to be deemed adverse. Such were the rules that the possession of the j'ounger brother was the possession of the heir ; that the possession of one of several co-owners was the possession of the rest ; and that a tenant for years, who remained in ^Dossession after the term had expired, held on behalf of his lessor. Under the E. P. L. A., 1833, it was still true that time ran from the accrual of the right of entry (or right of action), and where no specific rule was given in the Act, the date of accrual had to be determined upon general principles : infra, p. 15. But for nearly all cases in which the statute could operate, specific rules were laid down for ascertaining the date of CHAr. T.] GENERAL RULE OF LIMITATION. accrual, and tlie rules which formerly prevented possession from being adverse were expressly or impliedly abolished. Sect. 12 provided that the possession of one of several co-owners was not to be deemed to be the possession of the rest ; sect. 13, that the possession of a younger brother was not to be deemed to be the possession of the heir; and sects. 3 (clause 4), 7, and 8, enabled a tenant, whether for years, or from year to year, or at will, to gain a title against his landlord by holding over after the time when the tenancy had actually expired, or for the purpose of the statute, was to be deemed to have expired. Hence, it was held, soon after the passing of the Act of 1833, that the effect of the Act was to abolish the old doctrine of adverse possession : Xcpean v. Doc (1837), 2 M. & W. p. 911 ; Cullci/ V. Taylerson (1840), 11 A. & E. p. 1015. In cases where a possession, which was not adverse before 1833, became adverse by virtue of the Act of that year, sect. 15 allowed a period of five years for the prosecution of claims : see Ex jiarte Hasrll (1839), 3 Y. & C. Ex. 617 ; Cidh'i/ v. Taylerson (1840), 11 A. & E. 1008 ; ry Sullivan v. M'Sn-inci/ (1839), 2 Ir. L. E. 89 ; (1841), Long. & Towns. 111. It did not apply to the limitation in favour of a mortgagee under sect. 28 : Bi-oinir v. Bishop of Corl: (1839), 1 Dr. & Wal. " 700. The system of limitation by the operation of fines was abolished by the Fines and Recoveries Act, 1833, s. 2. The E. P. L. A., 1833, was not retrospective: Peyton v. WDennott (1837), 1 Dr. & Wal. 198 ; Murpliy v. Sterne (1838), ihid. 236. As to tenancies at will existing prior to the Act, see Doe V. Thompson (1837), 6 A. & E. 721 ; Doe v. Bold (1847), . II Q. B. 127. (2) Adverse Possession under Present Lau\ Although the old doctrine of adverse possession has been Adverse abolished, it is still convenient to speak of a possession in favour {'"f^^j^^^j;" of which the statute is running as adverse : see per Lord St. R.P.Ta Acts. Leonards in Dean of Ely v. Bliss (1852), 2 D. M. & G. p. 477. In general, possession is adverse in this sense whenever it is held without title, or is incompatible with the claimant's title : Jhs Barres v. Shey (1873). 29 L. T. 592, P.C. ; but the old rule that possession, when possible, is to be referred to a lawful title {Dor v. Ei/re (1851), 17 Q. B. 36G ; Doe v. Massej/ (1851), 17 Q. B. 373 ; Ford v. Agrr (1863), 2 H. & C. 279 ; provided the adverse possession began after the creation of the mortgage : Thornton v. France, [1897] 2 Q. B. 143, C. A. (3) llnle of Llmiiation. An action for the recovery of land or of a rent-charge must be brought within twelve years after the right of action has accrued to the plaintiff or to his predecessor in title : — " 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 i^ent, but within twelve years next after the time at which the I'ight to make such entry or distress, or to bi'ing 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 w'hom he claims, then within twelve years next after the tjme 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." This replaced sect. 2 of the Act of 1833, the time of limita- tion being shortened from twenty to twelve years. Previously to that Act there was no statutory limitation on rent-charges : Stackhouse v. Barnston (1805), 10 Ves. 453. The word "person" extends to a body politic, corporate, or collegiate, and to a class of creditors or other persons, as well as to an individual : E. P. L. A., 1833, s. 1 ; see " Charities," infra., p. 75. The phrase " action to recover land " includes not only actions which are aimed directly at the recovery of possession of land, such as the action to recover land which in the High Court has taken the place of ejectment, and the County Court OHAr. I.] GENERAL RULE OF LIlIITATION. 9 actions for the recovery of land and the recovery of possession (County Court Acts, 1888, ss. 49, 138) ; but also all actions, such as an action to compel the lord of a manor to admit the heir of a deceased copyhold tenant (JValters v. Wehh (1870), 5 Ch. 531), or for a declaration of a right to dower (Marshall v. Smitli (1867), 5 Giff. 37), which are intended to have this result. And it is the same whether the remedy is at law or in equity, the former discretion of Courts of Equity having been put an end to by sect. 24 of the Act of 1833 : infra, p. 68 ; Berrington v. Evans (1835), 1 Y. & C. Ex. 434. Moreover, the Act of 1874 expressly extends to suits, and shortly after it was passed the distinction between actions and suits was abolished : Judicature Act, 1875, s. 16 ; R. S. C, 1883, Ord. 1, r. 1. At one time it was thought that a foreclosure action was in Foreclosure sul)stance an action for the recovery of money : Dcarman v. "^12/ .. ^ Wychc (1839), 9 Sim. 570 ; Du Vigicr v. Lee (1843), 2 Hare, 326. j^^^/^ But the object of the mortgagee in bringing the action is to /^- ^^/H/^ exclude the mortgagor's equity of redemption, and at the same ^^^ time to convert himself from a mere incumbrancer — for in equity this is the position of even a legal mortgagee — into the owner of the land ; and it is now settled that the action ranks as an action to recover land : Wrixon v. Vize (1842), 3 Dr. & War. 104 ; Heath v. Pngh (1881), 6 Q. B. D. p. 364, C. A. ; Harlock v. Ashherrii (1882), 19 C. D. 539, C. A. (4) Statute runs against Successors in Title. From the language of sect. 1 of the Pi. P. L. A., 1874, it Devolution of follows that when the statute has commenced to run against a ^ ^" person entitled, it continues to run both as against him and as against persons deriving title under him ; or, more exactly, against persons claiming through him within the meaning of the following definition : — " The person through whom another person is said to claim J{. P. L. A., shall mean any person by, through, or under, or by the act of l^J^'^' ^' ^■ whom the person so claiming became entitled to the estate or tluousjli interest claimed, as heir, issue in tail, tenant by the curtesy of ^^'i'*'" iniotbtr claims Enirland, 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 •■state or interest to which the person so claiming, or some person through whom he claims, became entitled as lord by escheat." 10 LAND AND RENT-CHAEGES. [CHAP. I. Statute runs against successors in title. " Appointee." Mode of operation of statute. "Where owner cannot alienate. Thus, where an owner has been dispossessed, or the statute is otherwise running against him, it runs also against persons entitled under him in any of these capacities. In common, however, with the other definitions in sect. 1, this definition does not apply where the meaning assigned by it is excluded by the nature of the particular provision or by the context of the Act. Hence the term " appointee " in the definition must be limited to persons taking by appointment under a general power. In eliect they take, like an heir or devisee, the estate of the appointor. It does not extend to an appointee under a special power contained in a settlement, as where a tenant for life has power to apjDoint to a limited class. The limitation to the appointee is then read into the settlement, and the estate of the appointee takes efi'ect, for the purposes of the statute, as a remainder upon the estate of the tenant for life : Be Earl of Devon's S. E., [189G] 2 Ch. 502. (5) Operation of Statute. The statute assumes that an owner, or other person interested in land, is out of possession and is entitled to recover possession by legal process : Hindson v. Aslihy, [1896] 2 Ch. 1, C. A. The date when his right to take proceedings first accrues gives the starting-point for the statute, and if this right is not exercised in twelve years, it is barred. Under sect. 34 of the Act of 1833 the title also is extinguished, and the result is to create a new title in the adverse possessor. But there must be an adverse possessor in order to bring the statute into o^Deration. It does not run unless there is a person in whose favour it can run: Smith v. Lionel (1854), 9 Ex. 562; though its operation does not depend on the honafieles of the possessor. Vane v. TVn/r (1S73), 8 Ch. 397; cf. TuthiU v. 7?o//rr.s (1844), 1 Jo. & Lat. p. 64. Its effect may be to confirm a meritorious but defective title ; on the other hand, it may enable a mere trespasser to appropriate the land of another. He must, however, be in possession on his own account. The statute does not run in favour of an agent or servant, and where persons are in occupa- tion in such a character, the possession is deemed to remain in the principal or employer (infra, p. 30). The statute runs, notwithstanding that the dispossessed owner has no power to alienate the land : Maj/or (f Brighton v. Guardians of Brifiltton (1881), 5 C. P. D. 368 ; and consequently a title can be CHAP. I.] GENERAL RULE OF LDIITATIOX. 11 gained by adverse possession of land of a railway compan}-, even though it is not superfluous land : Bohhett v. SontJi-Eastrni Ei/. Co. (1882), 9 Q. B. D. 424; Midland Bi/. Co. v. Wright, [1901], 1 Ch. 738. But the particular provisions of a private Act may prevent the non-possession of a tenant in tail from prejudicing those in remainder : Earl of Ahergarenui/y. Brace (1872), L. Pi. 7 Ex. 145. (6) Cessation of Statute. The statute ceases to run if the adverse possession in favour Re-entry. of which it is running comes to an end, either in consequence of a re-entry by the true owner, or an abandonment of possession by the adverse possessor. Under the old law a merely formal entry by the person entitled was sufficient to vest the possession in him, or, if he dared not enter for fear of injury, the same result was attained by his going as near the land as he dared, and making his claim : Co. Litt. 253 b ; though under 4 & 5 Anne, c. 16, s. IG, such an entiy or claim was not effectual to avoid the statute 21 Jac. 1, c. 16, unless an action was com- menced within a year and prosecuted with effect. In pursuance of the suggestion of the Pieal Property Com- Aiwiition of mission of 1833 (First Eeport, p. 41), the doctrine of mere entry contf,,u"f and continual claim was abolished : — claim. "iSTo person shall be deemed to have been in possession of any R. p. L. A., land within the meaning of this Act merely by reason of having ^^•'^' ^- ^^■ made an entry thereon. "No continual or other claim upon or near any land shall S. 11. preserve any right of making an entry or distress or of bringing an action. The result is that an entry, to vest the possession in the ^"t''.y ^}^^^ person entering and prevent the bar of the statute, must be effective as opposed to merely formal. " The making an entry amounts to nothing unless something is done to divest the possession out of the tenant, and re-vest it in fact in the lord " : Doe V. Coomhe.s (1850), 9 C. B. p. 718. And it must be made auimo possidcndi: SolUng v. Broughton, [1893] A. C. 556. The entry is most effectually made if the occupier is actually put out of possession : see liandall v. Stevens (1853), 2 E. i*c B. Oil, stated infra, p. 100. If, however, the occupier or his family remain on the land, the owner must exercise substantial acts of ownership, and merely formal acts intended to assert his 12 LAND AXD EENT-CHARGES. [CHAr. I. right are not sufficient. In Doc v. Coomhes (sujji-a), Coombes bad encroached on the waste of a manor, and had built himself a hut. In 1835, the encroachment having been presented at the lord's court, the lord of the manor, accompanied by the steward, went to the premises, and, finding Coombes' wife and family there, they entered. The lord stated that he took possession, and directed that a stone should be taken out of the wall of the hut, and that a i)ortion of the fence should be removed. This was done without any objection being made, and the lord and the steward then retired. This was no more than a mere entry, and was not sufficient to vest the possession in the lord : rf. Thorp v. Faccj/ (186G), 35 L. J. G. P. 349 ; R. v. Inhabitants of Woohurn (1830), 10 B. & C. 846. But slighter acts will be sufficient if no person is actually on the land at the time of re-entry, although the possession may not be vacant. In Worssam v. Yandenhramlc (1868), 17 W. E. 53, the defendant, more than twenty years before the action, had entered into possession of land, and had enclosed it with a fence. Between nineteen and twenty years before the action the j)redecessors in title of the plaintiffs went to the land, broke down the fence, and erected a post with the announcement that applications for a lease of the land were to be made to them. They remained on the land three-quarters of an hour. Three days later the post was gone, but there was no evidence to show who had removed it. For the next five years no one, so far as appeared, did anything on the land, and then the defendant re-entered and built upon it. It was held that the plaintiifs' predecessors had effectively resumed possession. Abandonment The statute ceases to run, also, if the adverse possessor quits of possession. ^^]^q j.^^j^j ^^^ leaves the possession vacant. There is no person now in whose favour it can run, and the true owner is in the same position in all respects as before the intrusion took place : Trustees' Af/cnaj Co. v. Short (1888), 13 App. Cas. 793 ; cf. Willis V. Earl Howe, [1893] 2 Ch. 545, C. A. (7) Clnireh Lands. Spiritual and In the casc of land or rent belonging to a spiritual or coqi^SlSns^ eleemosynary corporation sole, a special period of limitation is sole. assigned : — n. P. T>. A., " It shall be lawful for any archbishop, bishop, dean, pre- 18:^.3, s. 2'.». bendary, parson, vicar, master of hospital, or other spiritual or €HAr. I.J GEXERAL RULE OF LIMITATION. 13 eleemosynary corporation sole, to make an entry or distre.ss or Two iucum- to brins; an action or suit to recover any land or rent within ■^•^i^cies aiKl such period as hereinafter is mentioned next alter the time at tbird. with which the right of such corporation sole, or of his predecessor, a maximum of to make such entry or distress or bring such action or suit shall first have accrued ; (that is to sayj, 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 times 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 holding of such two persons and such six years, make up the full period of sixty years ; and no such entry, distress, action, or suit shall be made or brought at any time Ijeyond the determination of such period." Thus land or rent can be recovered by such a corporation ^vithill a period measured b}- two incumbencies of the office or benefice in respect of which it is claimed, and six years of a third incumbency ; but if these times do not give an aggregate of sixty years, so many years are to be added as will make up the deficiency. The period is reckoned from the date of accrual of the right of action, and this date has to be ascertained in accordance with the other relevant provisions of the Acts : Arclth. yif DuhUn V. Trimleston (1849), 12 Ir. Eq. E. 251. If a statute transferring the lands of a spiritual corporation Transfer of sole to the Ecclesiastical Commissioners contains a clause, such t"h«rcii lamls to lav as sect. 57 of 3 & 4 Yict. c. 113, preserving, m favour of the corporation, commissioners, the rights and remedies of the corporation for obtaining possession of lands, and if the statute is already running against the corporation at the date of transfer, the commissioners can recover possession within the same period as would have been allowed to the corporation under sect. 29 had there been no transfer: Ecclesiastical Commissioners v. Uowe (1880), 5 App. Cas. 73G. But in the absence of such special provision, the Ecclesiastical Commissioners, and any other lay corporations to whom the property of spiritual corporations sole is by statute transferred, are within sect. 1 of the H. P. L. A., 1874, and are allowed only twelve years from the time when the right of entry accrued to the spiritual corporation. The definition of 14 LAND AND EENT-CHAKGES. [CHAP. I. " person " extends to all corporations •without any exception of those which are spiritual or sole (supra, p. 8), and the right of entry accrued to a "person" through Avhom the lay corporation claims. Consequently, if the transfer takes place when more than twelve years, but less than the time prescribed by sect. 29, have run against the spiritual corporation, the lay corporation takes a title which by the transfer becomes extinct : Irish Land Commission v. Grant (1884), 10 App. Cas. 14 ; Ecclesiastical Commissioners v. Bowe {Joe. cit. at p. 749). And even if there is such a special provision, it ceases to operate so soon as the lay corporation are in possession, and, if they are sub- sequently dispossessed, they are allowed only the usual period of limitation : Ecc. Comm. v. llou-c (p. 745). (8) Advoicsons. Limitation The statute begins to run against the owner of an advowson ill risspect of g^ soon as an adverse presentation is made, and his action to enforce the right of presentation is barred after three consecutive adverse incumbencies, if the time of such incumbencies amounts \ to sixty years ; if it is less, he has such further period as will make up the sixty years : K. P. L. A., 1833, s. 30. If, after an adverse incumbency, the Crown or bishop presents by reason of a lapse, this is reckoned as another adverse incumbency; but a clerk presented by the Crown upon the promotion of the incumbent to a bishopric is deemed to continue the incumbency of the promoted clerk : sect. 31. An owner who claims an advowson by virtue of an estate which the owner of an estate tail in the advowson might have barred is deemed to be a person claiming through the tenant in tail : sect. 3'2. Hence, if the statute has begun to run against the tenant in tail in possession, it runs also against the issue in tail and remaindermen. Sect. 33 provides a maximum limit of one hundred years from the first adverse presentation, unless the running of the statute is stopped by a presentation made by the owner. These pro- visions as to advowsons did not at first apply to Ireland : E. P. L. A., 1833, s. 44 ; but they were extended to that country by G & 7 Vict. c. 54. Both the words excluding Ireland in sect. 44, and the extending provisions of 6 & 7 Vict. c. 44, have been repealed : Statute Law Pievision Acts, 1874 (37 & 38 Vict. c. 35) ; 1891 (54 & 55 Vict. c. G7). The Act 6 & 7 Vict. c. 54, also CflAP. I.] GENERAL RULE OF LIMITATIOX. 15 provided, by sect. 8, that the statute should run against a bishop's right to collate to or bestow any benefice in his diocese, and that his right should be extinguished in the same manner and at the same periods as the right of any other patron. (9) Accrual of lUght of Action. In order to apply the rule of limitation, it is necessary to fix I'^^t® "^^ the date when the right of action " first accrued " (see Irish Land right of Commission v. Junhin (1888), 24 L. E. Ir. p. 44) to the claimant ''^"'^^"''• or his predecessor in title. This depends upon the nature of the interest in question. The ownership of land is divided in various ways : into simultaneous interests ; either of the same nature, as in the case of co-owners ; or of different natures, as in trusts, mortgages, and copyholds ; and into successive interests, as life estates and remainders. As regards many of these interests, directions are specifically given by the statutes as to the time when the right of action is to be deemed to have accrued. To such an extent is this done, that it was formerly a matter of doubt whether the Legislature did not intend thus to provide for all cases intended to fall within the statutes, and on this assumption any case not expressly provided for would not be subject to any period of limitation. It is settled, however, that the provisions which fix the date when the right of action shall be deemed to have accrued are not exhaustive, and, where they afford no guidance, recourse must be had to general principles : James v. Salter (1837), 3 Bing. N. C. p. 553 ; Mcu/dalen Hospital V. Knotts (1878), 8 C. D. p. 727, C. A. ; Pagh v. Heath (1882), 7 App. Cas. p. 238; Irisli Land Commission \. Junkin (1888), 24 L. E. Ir. 40; Er Earl of Heron s Settled Estate, [1896] 2 Ch. 562. Time in such cases runs from the actual date of accrual of the right of action, and this corresponds with the date when the claimant's right to possession has been infringed. The division of rights between landlord and tenant requires Laiuliord and special notice. The landlord parts with his right to possession, tenant. and, so far as this is concerned, he is in the same position as the remainderman after a particular freehold estate : <;/'. Co. Litt. 143 a. Both the landlord and the remainderman must wait for the determination of the prior interest before their right to possession of the land arises, and in respect of such right each has merely a future interest. Consequently, in the IQ LAND AND EENT-CHARGES. [CHAP. I. absence of special provision, a landlord's rights are governed by the general provisions of the R. P. L. Acts relating to future interests. But for practical purposes the cases are widely different, the landlord being in fact in the present enjoyment of the advan- tages of o\Ynership. Sometimes, indeed, the landlord is spoken of as though he was in possession of the land by means of his tenant : Zyell v. Kennedy (1889), 1-i App. Cas. 437 ; but the land- lord's possession in such a case is technically described as seisin. The possession of the tenant supports the seisin of the landlord : Bushhy v. Ihxon (1824), 3 B. & C. p. 304 ; and so in Boe V. Finch (1832), 4 B. & Ad. at p. 300, Denman, C.J., observed, " Where it is said that the possession of tenant for years is the possession of the party entitled to the freehold, that imports that such person is seised of the estate of freehold." While, however, this is true with regard to possession of the land, the receipt of rent marks the landlord as being in iDresent IDOssession of his rights as owner: cf. the Conveyancing Act (1881), s. 2 (iii), and the Settled Land Act (1882), s. 2 (10) (1), where " possession " is defined as including the receipt of income. Consequently, although in the operation of the E, P. L. Acts it is only actual possession which in general is contemplated, the theory has to be modified in dealing with the rights of land- lords, and under certain circumstances a lessor is regarded as having a present interest which is liable to be barred. At the same time the lessee has a right of property which is capable of modification, and it may, and, in cases where the lease is not at a rack rent, frequently is, dealt w^ith on the same tooting as the ownership. It is divided into successive or concurrent interests, and is made the subject of trusts and mortgages. In considering the application of the rule of limitation, the matters to be noticed are (1) the subject-matter of the rule ; (2) its operation in particular cases ; and (3) the nature of the possessory title which is acquired under the statute. CHAP. L] LAND. 17 Section II. — The Subject-matter of Sect. 1 of the E. P. L. A., 1874. (1) Land. The E. P. L. A., 1833, defines " land " as follows :— " The word ' land ' shall extend to manors, messuages, and R. P. L. A., all other corporeal hereditaments whatsoever, and also to tithes .. Laud/' (other than tithes belonging to a spiritual or eleemosynary 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." The definition thus includes land, regarded as a physical inteiests m thing, and also the estates and interests which may exist in it. Ordinarily an estate or interest in land (as to these terms, see Co. Litt. 345 a, b) involves, at some time or other, a right to possess the land; though the term "interest" is not thus restricted, and it applies to a charge on land : Drivers. Broad, [1893] 1 Q. B. 744, C. A. ; and to a right to the proceeds of sale of land : Boinjcrv. Woodman (1867), 3 Eq. 313. But for the purpose of sect. 1 of the Act of 1874, it is in general sufficient to regard " land " as meaning the physical thing. The right of entry is exercised, or the action brought, to recover possession of the land itself. "The Act," said Lord St. Leonards in Dean of Ell/ V. Bliss (1852), 2 D. M. & G. p. 473, " does not deal with land in any other sense than in that where a person has the right to the land itself." The Acts do not apply to land in Jamaica : Pitt V. Lord Bacre (1876), 3 C. D. 295. " Land," says Lord Coke, " in the legal signification, compre- bau.l as a hendeth any ground, soil, or earth whatsoever; as meadows, object, pastures, woods, moors, waters, marishes, furses, and heath" (Co. Litt. 4 a). All these things are the subject of estates of inheritance, and are corporeal hereditaments. And the owner- ship and possession of the surface of the earth generally carry with them the ownership and possession of all that is below and all that is above the surface. But this is not necessarily the case, and just as the area of land is divided by surface boundaries, T.L.A. c 18 LAND AND RENT-CHARGES. [CHAP. I. SO the column reaching from below the surface into the air above may be divided into layers, and the R. P. L. Acts apply to any layer or other portion of which separate possession can be shown. Thus by means of a projection from a building adverse possession may be gained of a definite space above the soil : see Layhurn v. Gndlerj, [1892] '2 Ch. 53 ; though the possession is limited to such space, and does not carry with it the possession of the space above. This remains with the surface owner. Similarly a title to a tunnel may be obtained by exclusive possession : Bcvan v. Loudon Portland Cement Co., Ltd. (1892), 67 L. T. 615 ; or to surface land over a tunnel : Midland By. Co. V. Wyhjht, [1901] 1 Ch. 738. Severance of surface and minerals. Possession of mines. Mines. The question of the division of land in this manner is chiefly of importance with regard to mines ; and as to these, the recognition of separate possession follows the ordinary law of property. " It is of universal experience," said Ellenborough, C.J., in Barnes v. Maivson (1813), 1 M. & S. at p. 84, "that one person may have in him the freehold title to land, whilst another has the exclusive right to mines under it." Hence there is no universal presump- tion that the fee simple of the land carries with it the right to minerals : Bou-c v. Grenfell (1824), Ey. & Moo. 396 ; and the severance that may exist between the title to and the possession of the surface and the title to and possession of the mines is well established: see Earl of Cardigan v. Arinitaf/e (1823), 2 B. & C. 197 ; M'Donncll v. M'Kintij (1847), 10 Ir. L. R. 514 ; Bardley V. Granville (1876), 3 C. D. 826; Batten PooUy. Kennedy, [1907] 1 Ch. 256 ; Bicli v. Johnson (1741), 2 Str. 1142. It being thus possible in law to sever the mines from the surface, they may be treated as the subject of separate possession and are within the R. P. L. Acts. Consequently a seam of coals cannot be prescribed for, though it is otherwise with a mere right to take coals in the land of another : Wilkinson v. I^rond (1843), 11 M. & W. 33. Legally the term " mine " includes surface workings as well as mines underground : Midland By. Co. v. Bohinson (1889), 15 App. Cas. 19 ; ef. Lord Prorost of Glasgow v. Fairie (1888), 13 App. Cas. 657. To gain a title by possession, it is sufficient to be able to establish possession throughout the requisite period of a definite part of the crust of CHAP. I.] TITHES. 19 the earth, and this may be an open quarry: M'Donndl v. M'Ki)iti/ (1847), 10 Ir. L. R. at p. 525 ; a bed of clay: Carhjon V. Loverinrj (1857), 1 H. & N. at p. 799 ; or mines in the ordinaiy sense : Rowhotham v. Wilson (1857), 8 E. & B. at p. 142 ; Ashton V. Stock (1877), G C. D. 719. But the mere getting by a mine- owner of minerals from neighbouring mines will not give him possession of those mines : Ashton v. Stock ; Thompson v. Hick- man, [1907] 1 Ch. 550. Tithes. By the definition clause {supra, p. 17) the term "land "is Claimants expressly extended to include " tithes (other than tithes belonging to a spiritual or eleemosynary corporation sole) " ; but the statute only applies as between rival claimants to the tithe, and not as between tithe-owner and tithe-payer : Dean of Ely v. Bliss (1852), 2 D. M. & CI. 459; Lord Shannon v. Hodder (1837), 2 Ir. L. E. 223; Lord Shannon v. Stoughton (1841), 3 Ir. L. E. 521 ; see Irish Land Commission v. Grant (1884), 10 App. Cas. 14 ; though it is otherwise as to tithe rent-charge : injra, p. 27. In Dean of Ely v. Bliss {loc. cit., pp. 4G9, 470), Lord St. Leonards based this construction partly on the ground that a limitation as between tithe-owner and tithe-payer had just been introduced by the Tithe Prescription Act, 1832 (2 & 3 Will. 4, c. 100), an Act which, at the time of the passing of the E. P. L. A., 1833, had not yet come into operation, and which the latter Act could hardly have been intended to repeal. Previously to 1833 a claim to the payment of tithes — that is. Former to payment in kind — might be resisted by setting up a modus barring tithes. decimandi, a composition real or conventional, or an exemption, but not by mere proof of non-payment. A tnodus decimandi existed where, by custom or prescription, a particular manner of tithing was allowed (as by payment of a fixed sum of money), L. E. Ir. 309 ; and it is settled that the bar of sect. 1 of the Act of 1874 does not apply to rents reserved on leases for years : Dean of Ely v. Bliss (1802), 2 D. M. & G., p. 477 ; Archhohl V. Sculli/ (1861), 9 H. L. C. p. 375 ; Irislt Land Commission v. CHAP. I.] EENT-CHARGES. 23 Grant (1884), 10 App. Cas. p. 26 ; including penal rents : BaJji V. BloompM (1842), 5 Ir. L. E. 65. But it does apply to rent- charges, whether ancient or created recently : Jones v. Withers (1896), 74 L. T. 572, C. A. It makes no difference that the land is in the hands of a statutory corporation (S. C). The distinction thus established is upon principle clear, and it is justified by the general framework of the Acts. Eent, in the sense of rent-charge, is a species of property forming an incumbrance on the ownership of land. It is a right to demand from the owner a share of the annual profits of the land. A conventional rent reserved on a lease, on the other hand, is paid to the owner as a return for the occupation and use of the land. In the one case the rent is an incumbrance on the ownership, in the other it is an incident of the ownership. Statutes which are intended to quiet the title to the ownership may therefore properly provide a bar against a forgotten rent- charge, but there is no occasion for extending this bar in favour of a lessee who, during the currency of his lease, cannot possess as owner. The different senses in which, in accordance with this dis- Different tinction, the word "rent" is used in the E. P. L. A., 1833, ofrenT." w^ere pointed out by Lord Denman, C.J., in Doe v. Angell (1846), 9 Q. B. p. 355 : " The word is used in the sense of rent-charge in the 2nd section, and so, too, in sects. 3, 4, 5, and 7, the last of these sections contemplating the possible case of a tenancy at will in a rent-charge. In sect. 8 it is used in both senses, but the confusion is most marked in sect. 9. The word ' rent ' is there used seven times. The first time it means rent-charge ; the second and third, rent reserved ; the fourth, rent-charge ; the fifth, rent reserved ; the sixth, rent-charge ; the seventh, rent reserved." But while conventional rents on leases for years have been Freehold and thus definitely excluded from the operation of the E. P. L. Acts rents.*' ' (except as to arrears, itifra, p. 175), there has been no tendency to carry the exclusion further, and it has been held that the bar applies to quit-rents (I>c BeanroirY. Otcen (1850), 5 Ex. 1()(>), and to copyhold rents: Ilowitt v. Earl r>f Ilarrhujion, [1893] 2 Ch. 497. It would probably be held to apply also to rents reserved on leases for lives, though this point has not been decided. The statute runs not only as between rival claimants to the I'.ison linbio rent- charge, Ijut also in favour of the pei'son liable to pay: I.'i',^'"?^/*^"*" 24 LAND AND EEXT-CHAEGES. [CHAr. I. James v. Salter (1837), 3 Bing. N. C. 544 ; Irish Laud Commission V. Grant (1884), 10 App. Cas. 14 ; Paijnr v. Esdaile (1888), 13 App. Cas. 613. Hence a quit-rent or copyhold rent can be extinguished by non-payment : I>c Beauroir v. Owen, Ilou-itt v. Earl of Harrington (sujjra); and so, too, can a modern rent- charge created by deed : Jones v. Withers (1896), 74 L. T. 57'2. And although there was formerly some doubt on this point with respect to tithe rent-charge, on account of its analogy with y^ tithes (snjya, p. 19), it is now settled that the statute applies '/C^a^ ^/^i^^t-* jjj favour of the person liable to pay tithe rent-charge as against ^^/y ^^*^^ the person entitled: Irish Land Commission v. Grant {supra), ^V overruling Xettcrrille v. Poicer (1861), 13 Ir. Jur. 123. Heriots. Heriots Although heriots are by the definition clause expressly excluded. included under rent, it seems to be settled by Oiren v. De Beauroir (1847), 16 M. k W. 547 ; Earl of Chiehester v. Hall (1851), 17 L. T. O. S. 121 ; and Lord Zouehe v. DalJnac (1875), L. E. 10 Ex. 172, that they are not within the operation of sect. 1 of the Act of 1874. This is mainly upon the ground that the right to a heriot only arises at irregular intervals, and since the statute, on a literal construction, would run from the last time when a heriot was taken, the right might be barred before there had been any chance of asserting it. (For the various kinds of heriots, and whether recoverable by distress or seizure, see Elton on Copyholds, 2nd ed. pp. 198-203.) Oicenx.Be In Oicen V. De Beauroir {supra), the point at issue was Beauvoir. whether time ran against a freehold quit-rent from the date of the last payment or the date when the last rent unpaid fell due. On the words of sect. 3 of the Act of 1833, it was clear that the former date must be taken, but it was objected that, on this construction, a heriot, if it did not become payable for over twenty years, would be barred by lapse of time without any default in payment, and without any opportunity for the lord to enforce payment. To this argument Parke, B., replied (16 M. & W. p. 566) : " As to heriots, probably the answer to this objection may be that, in a case similar to that now before us, the word ' rent ' would not include heriots. For although by the interpretation clause the word ' rent ' is made to include heriots, yet that is only where the nature of the provision or the CHAr. I.] HERIOTS. 25 context does not exclude such a construction ; and it may be that the injustice pointed out would afford grounds for holding that in the clause now under consideration (sect. 3) the word * rent ' does not include heriots." In Chichcstn- V. HaU (1851), 17 L. T. 0. S. 121, freehold land Chichestn- was held of a manor by services which included heriots and quit- ^' "' " rent. In 1804 the lord, who was entitled for life only, took a heriot on the death of the tenant, but omitted to do so on the next death, in 1824. In 1826 the lord died, and his son became tenant in tail in possession. The son claimed to seise a heriot on the next death, in 1847, and he also claimed quit-rent, of which there had been no payment since 1804. As to the quit- rent, the statute commenced to run against the son in 1826, when his estate fell into possession, and it was therefore barred in 1846. The same result would follow as to the heriot, if it was really " rent " ; but since the son had taken the first heriot he could, the injustice of this was obvious. " The 2nd and 3rd sections," said Patteson, J., "cannot be put together so as to make the last receipt of a heriot, which only falls due at long and irregular intervals, the point of time from which the period begins to run. The twenty years must, I suppose, run from the time when the right to have the heriot accrued." But this supposition is hardly warranted. If, under sect. 2, rent really, as directed by sect. 1, includes heriots, and if, under sect. 3, the right to rent accrues at the date of the last payment, at the same date, too, must the right to heriots accrue. Either, then, time runs against heriots from the time when they were last taken, or, as suggested in Otccn. v. Dc Jkanvoir, they are not included in sect. 2 of the statute at all. In Lord Zonchc v. Dalbiac (1875), L. 1\. 10 Ex. 172, where Lord Zouche the right to seise a heriot was alleged to be barred by statute, ''• ^^«'^'■«'•• the new objection was taken that, among the remedies barred by sect. 2 of the Act of 1833, a right to seise was not mentioned : see per Kelly, C.B., loc. cit. p. 176 ; per Bramwell, B., p. 181. But this reason would only apply to heriots which lie in prendre, and the decision went upon the broader ground that a heriot differs materially from rent, and caiinot, even by the express words of the delinition clause, be brought within the statute. "'Bent,'" said Kelly, C.B., "is a noun of mnltitude, meaning not one single sum due at some one moment, which may be recovered by action, and may be lost if not, but meaning 20 LAND AND RENT-CHARGES. [( ilAP. I. a succession of sums of money payable, in general, yearly or at shorter intervals during the whole term specified. A heriot is a right to take a specific chattel, a right arising either upon death or alienation in a manor. It is not of a continuous nature. To apply to such a subject words in the statute which are applicable onl3'to continuous payments would be to disregard the principle and spirit of the statute ; and to apply such words to a case in which no opportunity may occur of enforcing the right for per- haps twenty, thirty, or forty years, would seem to be a total departure from the intention of the Legislature." And this view, Kelly, C.B., pointed out, is supported by the difficulty observed upon in Oireii v. De lycanvoir, that, if time runs against heriots, it must, under the words of the statute, run against them from the moment when the last heriot was taken. Upon the whole, while the Court considered that, even if the statute applied to heriots, a right to seise heriots was not barred, yet it was thought that they were excluded by the whole purport of the Act of 1833 from sects. 2, 3, and 34. Periodical Sums charged on Land. Periodical The definition clause extends the term "rent" to "all upon or pa^y- annuities and periodical sums of money charged upon or able out of payable out of any land (except mod uses or compositions land. 1 1 • i •'•11 1 . belongnig to a spiritual or eleemosynary corporation sole)." The nature of )nodiises and compositions has already been con- sidered, and it was pointed out in Paipic v. Eadaile (1888), Vi App. Cas. 613, that a modus was never charged upon or payable out of land in the sense that there was a remedy for it against the land itself. Hence, since mod uses are treated as " charged upon or payable out of" land for the purpose of the definition, and are included under "rent" save where they belong to a spiritual or eleemosynary corporation sole, it follows, as was held in that case, that the phrase " charged on land" is to be taken in a popular rather than a technical sense ; and a pay- ment is charged upon land within the meaning of the definition where the occupier of the land can only enjoy it upon terms of becoming liable to the payment. Thus the annual payments or customary tithes imposed by 37 Hen. 8, c. 12, in respect of houses in the City of London, which are payable by the occupiers by reason of their occupation, are "charged on land," and are CHAP. L] ANNUITIES. -< liable to be barred as rent under the J\. P. L. A., 1874, although they are not liable to be barred as tithes under the Tithe Prescription Act, 183*2 (.'iKpra, p. 21). The definition covers annual sums charged on land under J;^"^[^^„,^ the Land Tax Kedemption Act, 1802, s. 123, in favour of a charge, person having a partial interest in the land (not being an estate of inheritance) who redeems the land tax ; and the right to such sums is liable to be barred, notwithstanding that they are stated in the statute to be payable by way of interest, and might there- fore conceivably be subject only to the six years' limitation on arrears of interest: Skene v. Cook, [1902] 1 K. B. 682, C. A. Tithe rent-charge is a species of property distinct from a Titho rent- composition, and is not within the exception of compositions belonging to spiritual and eleemosynary corporations sole. Consequently tithe rent-charge is always liable to be barred by non-payment, though when it belongs to such a corporation sole the periods of limitation are those prescribed by sect. 29 of the Pi. P. L. A., 1833 {supra, p. 12) : Irish Land Commission v. Grant /^/C^e-^*^ "^ (1884), 10 App. Cas. 14, p. 31. Modnscs and compositions, when /-^.^^^J./^^^^ they consist of periodical sums charged on land, are also liable //i:^^ /If 7 to be barred, provided they do -not belong to a spiritual or / eleemosynary corporation sole. Formerly an annuity charged the person of the grantor Annuities only (Co. Litt. 144 b), and was recoverable by writ ot annuity ; hmii: while a rent-charge w^as recoverable either against the land, by distress or assize, or, at the election of the grantee, by writ of annuity : Litt , sect. 219 ; Co. Litt. 144 b ; Gilbert on Eents, pp. 92 rt seqq. Frequently, however, annuities are charged upon land, and then they are rent-charges. Powers of distress and entry may be expressly attached to them by deed or will : cf. James v. Salter (1830), 2 Bing. N. C. 506 ; and in the case of instruments coming into operation after 31st December, 1881, such powers are conferred by sect. 44 of the Conveyancing Act, 1881. And since the remedy by assize is abolished, an action of debt can be brought against the person in enjoyment of the land : Thomas v. Sijlvestrr (1873), L. K. 8 Q. B. 368. For the purpose of the statute each instalment of the annuity Anmiitiea .,,, ,, - 1 iiAi'ix barred as might be regarded as a sum of money charged on land, the rigiit -rent." to recover which would be barred in twelve years from its falling due: P. P. L. A., 1874, s. 8; infra, p. 154. Failure to enforce payment of any particular instalment would not, on this view. 28 LAND AND RENT-CHARGES. [CHAP. I. prejudice the right to recover subsequent ones. But the correct view is that an annuity charged on land is rent, so that the right to recover the annuity as such is liable to be barred under the E. P. L. A., 1874, s. 1, in twelve years from the last payment : Dower v. Bower (1885), 15 L. E. Ir. 264 ; He Xtir/ent's Trusts (1885), 19 L. E. Ir. 140. So long as the annuity itself is in existence, arrears for six j-ears are recoverable : infra, p. 176. But when the statutory period has run against the annuity it is extinguished : E. P. L. A., 1833, s. 34 ; and at the same time the right to recover any arrears is gone : Jones v. Withers (1896), 74 L. T. 572, C. A. ; cf. Re Jolly, [1900] 2 Ch. 616, C. A. ; this was left open in He Nagenfs Trusts (uhi supra, p. 145) ; see also Searlc v. Colt (1841), Y. & C. C. C. 36. Personal If the annuity is also secured by covenant, each failure to barred as V^J gi"^es a fresh cause of action, and hence it was formerly held ^eil. that the remedy on the covenant might subsist, though the right to recover the annuity out of the land was extinguished : JManning v. Phelps (1854), 10 Ex. 59. But in fact the extinction of the title to the annuity removes the subject-matter of the covenant and renders it unenforceable. The decision in Sutton V. Sutton (1882), 22 C. D. 511, C. A., though not directly applicable to the case, shows the unwillingness of the Court at the present time to allow the personal remed}- to survive when the remedy against the land is gone. Moreover, if the annuity is charged on personal estate as well as on land, it is not kept alive as against the personal estate : He Xu[ie)ifs T)-usts (supi-a) ; Dower v. Dower {sujira). Payment But where instalments of the annuity have been paid by by surety. ^ surety, he is entitled to recover the specific sums with interest, and not arrears of the annuity as such : Seottisli Drorident Institution v. ConoUij (1893), 31 L. E. Ir. 329. CHAr. I.] PRESENT INTERESTS. 29 Section III. — Present Interests. The statute may begin to run against a person presently i.(«s of i»os- entitlecl to the possession of land or to receipt of a rent-charge failure to°take (1) when he has been in possession of the land or in receipt of the possession. rent, and has been dispossessed or has discontinued possession or receipt ; (2) when his title has arisen, but he has failed to enter into possession or receipt. (1) Dispossession of Land. The following clause defines the date of accrual of the right of action in the case of dispossession or discontinuance of possession of land : " Whea the person claiming such land or rent, or some person R. R- R- A., through whom he claims, shall, in respect of the estate or interest , j' ^' ' claimed, have been in possession or in receipt of the profits of Dispossession such land, or in receipt of such rent, and shall, while entitled thereto, have been dispossessed, or have discontinued such posses- sion or receipt, then such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received." Shortly stated, the rule is that when a person claiming land, or his predecessor in title, has, in respect of the estate claimed, been in possession of the land, and has, while entitled thereto, been dispossessed or has discontinued possession, the statute runs from the time of dispossession or discontinuance of possession ; with the like provision for the case of a claim to a rent-charge. (i.) Possession hi/ Agent. The phrase " in receipt of the profits " seems to have been Posscssiou by intended to provide for the case of an owner being in receipt of "'^^^^"• the proceeds of land from a bailiff: see Lord St. Leonards' Heal Property Statutes, p. 47 ; and, taken with sect. 35 of the Act of 1838, which makes the receipt of rent equivalent as against the tenant to receipt of profits, it would also prevent the statute running against a landlord. But for neither purpose are the 30 LAND AND RENT-CHARGES. [CHAP. I. Possession ou behalf of infant. Receijit of rents by agent. words necessary. The case of lanclloid and tenant is fully covered by sects. 7 and 8 of the Act of 1S33, and by the principle that during the continuance of a term of years the landlord has no right to the actual possession ; and the possi- bility of dispossession while a bailiff holds as such is excluded by the character of his possession. Where possession is held by a servant or bailiff, this is the possession of his employer, and there is no dispossession of the employer so as to make his right of entry accrue and the statute run ; JSIoore v. Dolicrti/ (1845), 5 Ir. L. E. 449; Allen v. Euglaml (1862), 3 F. & F. 49. Hence the insertion of the phrase " in receipt of the profits " was unnecessary. Where possession is held by permission of the owner by a person who is not in the position of a bailiff or a guest, a tenancy at will is created, and the rule suitable to such a tenancy applies {uifra, p. 97) : see Jacic v. Walsh (1842), 4 Ir. L. Pt. 254, a case of possession given to a mistress. Where the owner of a leasehold house allowed his sisters to reside therein, contributing to their support, and himself paying the rent, rates, and taxes, and executing the repairs, they were guests and not tenants at will: Pealcin v. Pcalnn, [1895] 2 I. E. 359 ; cj\ Ellis v. Crairford (1842), 5 Ir. L. E. 402. A parent or other near relation entering on the land of an infant is deemed to enter as a bailiff, and the statute does not run : 'Thomas v. Thomas (1855), 2 K & J. 79 ; Pclli/ v. Bascomhc (18(33), 4 Giff. 390; WaJl v. Stanwick (1887), 34 C. D. 7G3 ; MacConnack v. Courtnci/, [1895] 2 I. E. 97 ; Biirnside v. Burusidc, [1906] 1 I. E. p. 218 »., C. A. In such a case the possession remains non-adverse, even after the infant has attained twenty- one, until something has been done to change its character : Hohhs V. Wade (1887), 36 C. D. p. 557; Tinier v. Bodirell (1893), 69 L. T. 591 ; as where the infant has left home and has attained twenty-one, and has not for many years made any claim to the property: Be Magiiire and M'Clelland's Contract, [1907] 1 I. E. 393, C. A. And the principle applies to a stranger — such as a purchaser — who enters with full notice of the infant's rights : Youn(j v. Harris (1891), 65 L. T. 45 ; but not to an heir-at-law who enters without knowing that the land has been devised to an infant: Lambert v. Broinie (1870), Ir. E. 5 C. L. 218. Upon a similar principle a person who is in receipt of rents as agent cannot thereby gain a title against his principal. In CIIAr. I.] PKESENT INTERESTS. 31 I !'(//•(/ V. Carttar (1865), 1 Eq. 29, a solicitor, who paid off a mortgage on his cheat's estate in order to facihtate a sale, and who, ^Yhe^ the sale was not proceeded with, went into receipt of the rents, was held to be in receipt as agent, so that the statute did not run in his favour. And the agency will be taken to last until it can be shown to have in fact terminated : Smith v. Bennett (1874), 30 L. T. 100 ; as, for instance, by the principal's bank- ruptcy : MarkwicJc v. Hard in [/ham (1880), 15 C. D. p. 348, C. A. An agent purporting to act for an unknown owner is debarred Lyell v. from gaining a title under the statute, provided the owner is "^^"'^""^ ^' subsequently discovered and ratifies the agency. This was the ground of decision in Li/cll v. Kennedy (1889), 14 App. Cas, 437. The action was commenced in 1881 to recover a mill and factory and about seventy cottages at Manchester. Ann Duncan took the property as devisee under the will of Lawrence Buchan, who died in 1859. She and Kennedy were executors of the will. Kennedy managed the property for Ann Duncan gratuitously, received the rents, and carried them to an account at the bank in the name of " the executors of Lawrence Buchan." Ann Duncan died in 1867 intestate as to realty in England. The property was at that time let on different tenancies, one annual and the others weekly, without writing. Till 1880 Kennedy continued to manage the property, giving receipts and paying in the rents exactly as before, the tenants apparently not being informed of the death of Ann Duncan. Kennedy repeatedly stated, orally and in writing, to Lyell and other persons that he was acting for the heir or heirs, whoever he or they might be, and that he was ready to account to him or them as soon as they .were ascertained. In 1880 he claimed to be in receipt of the rents and profits for himself. Three sisters were found to be co-heiresses of Ann Duncan, and they assigned their interest to Lyell, who claimed the property. To this claim Kennedy pleaded the statute. It was held by the House of Lords that Kennedy's position as agent prevented his receipt of rents from being adverse to the heirs. " The respondent's acts," said Lord Selborne, "in so receiving the rents, could not, in my opinion, dispossess the heirs of Ann Duncan, so as to put them to their action, either under the 2nd and 3rd, or under the 8th section of the statute 3 & 4 Will. 4, c. 27. If he received on behalf of the heirs, and if they could and did adopt and ratify his agencj^ they were in, and never out of, possession " : see also McAidijI'c 32 LAND AND RENT-CHARGES. [CHAP. I. Co-ownership. E. P. L. A., 1833, s. 12. Possession by one co-owner. Title acquired against other co-owners. V. Fitzsimmons (1889), 26 L. E. Ir. 29. Li/elJ v. Kcnncchj depended on the question, not of dispossession, but of the failure of the true owner to take possession ; but in regard to the nature of possession held on behalf of another, the distinction is immaterial. (ii.) Possession hy Co-owner. The rule previous to 1833, under which one co-owner in exclusive possession of land was deemed to possess on behalf of his co-owners, was abolished by sect. 12 of the Act of that year : — " When any one or more of several pei'sous 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 Buch 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." By virtue of this section a co-owner who occupies the whole,, or any part exceeding his proper share, of the land, can acquire a title as regards the whole or such part to the exclusion of the other co-owners : Ex parte Hasell (1839), 3 Y. & C. 617 ; Burroughs- V. M'Crcight (1844), 1 Jo. & Lat. 290 ; Sanders v. Sanders (1881), 19 C. J). 373, C. A. As to co-parceners, see Steicart v. Marquis of Conyngham (1849), 1 Ir. Ch. E., p. 551. Moreover, where two co-owners enjoy their moieties separately, without any deed of partition, the effect of the statute is to vest in each, after the statutory period, a sole title to his moiety, inasmuch as the section applies to the case where a co-owner is in the exclusive possession of the entirety of any portion of the land : Murphy V. Murphy {Id,^^), 15 Ir. C. L. E. 205, correcting Tidhall v. James (1859), 29 L. J. Ex. 91. Consequently in this manner two joint tenants may sever the joint tenancy, so as to extinguish the right of survivorship. A partition by parol and separate possession cannot be questioned after twelve years : Paine v. Ryder (1857), 24 Beav. 151. But where one co-owner who had been in receipt of the entirety of the rents from 1833 till his death in 1877, was shown to have accounted for a moiety to his co-owner from CHAP. I ] DISPOSSESSIOX. 18G4 to 1877, it was held that this raised a presumption that he had accounted for the earher rents, and he could not rely on the title of his co-owner having been already extinguished in 1864 : Sanders x. Sanders (snjjra). 33 (iii.) Disjjosscssion and Discontinuance of Possession. The statute draws a distinction between dispossession and Distinction discontinuance of possession. When the existing possession posre8sk)n'^" of A. is terminated against his will by the entry of B., there is a'ld discon- a case of dispossession. When A. voluntarily withdraws from jj^ossessioii! possession, and then or subsequently B. enters and gains pos- session, there is a case of discontinuance of possession. " In my view," said Fry, J., in Bains v. Buxton (1880), 14 C. D. p. 539, "the difference between dispossession and discontinuance of possession may be expressed in this way — the one is where a person comes in and drives out the others from possession ; the other case is where the person in possession goes out, and is followed into possession by other persons." But dispossession does not require the driving out of a possessor actually present on the land. Possession once acquired continues so long as it is supported by indications of occupation, although no person is on the land ; and the entry of a stranger during the pos- sessor's absence is then a dispossession and not a discon- tinuance of possession. Discontinuance of possession implies that all indications of occupation have been withdrawn. " It is difficult," said Bramwell, L.J., in Leigh v. Jack (1879), 5 Ex. D. at p. 272, " to suppose a case where it can be doubtful whether there has been a discontinuance of possession as to a house ; if any chair or table, or other small article of furniture be left, there is strong evidence of intention that there shall be no discontinuance of possession ; but it is possible to conceive a case of discontinuance of possession as to a piece of land Yv'here the former owner does nothing to it for the space of twenty years. . . . But, after all, it is a question of fact, and the smallest act would be sufficient to show that there was no discontinuance." But A.'s withdrawal from possession, though it appears to 4 "^^^' posscs- satisfy the literal meaning of " discontinuance of possession," is to'discoii- " not by itself sufticient for the purpose of the statute. Until tinuaace. «ome other person has entered there is no one against whom A. T.L.A. D 34 LAXD AND EENT-CHARGES. [CHAP. I. can enforce his right of entry, or in favour of whom the statute can operate, and on these grounds it has heen held that actual possession by a stranger is necessary to complete the discontinu- ance of possession. "The word 'discontinuance,'" said Black- burne, CJ., in McDonnell v. M'Kinti/ (1847), 10 Ir. L. E. p. 526, " I understand to mean an abandonment of possession by one person, followed by the actual possession of another person. This, I think, must be its meaning ; for if no one succeed to the possession vacated or abandoned, there could be no one in whose favour or for whose protection the Act could operate. To constitute discontinuance there must be both dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected." And this opinion was indorsed by the English Court of Exchequer in Smith v. Lloiid (1854), 9 Ex. 562, where Parke, B., in delivering the judg- ment of the Court, said, " We are clearly of opinion that that statute [R. P. L. A., 1833] applies not to cases of want of actual possession by the plaintiff, but to cases where he has been out of and another in possession for the prescribed time. There must be both absence of possession by the person who has the right and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute. We entirely concur in the judgment of Blackburne, C.J., in McDonnell v. M'Kintij, and the principle upon which it is founded." In Trustees Ageneij Co. v. Sliort (1888), 13 App. Cas. p. 799, the above cases were treated by the Privy Council as correctly stating the law. In the earlier case of Doe v. Bramston (1835), 3 A. & E. 63, it appears to have been considered that, where an owner abandons possession w^ith no intention of returning, time will run against him forthwith. But this is inconsistent with the principle just stated. Whatever be the owner's intention, it is only the entry of a stranger that brings the statute into operation. Mines. Questions of discontinuance of possession may arise in regard to mines, where the ownership of the mines has been severed from the ownership of the surface. The mere omission of the mine- owner to work the mines is no evidence of the abandonment of the right to work them : Seaman v. Vawdrei/ (1809), 16 Ves. 390 ; Aelair v. Shaftoe, referred to in 19 Yes. p. 156. It may involve an abandonment of possession, yet this does not imperil the mine-owner's title so long as the CHAP. I.] DISrOSSESSION". 35 " discontinuance of possession " has not been completed by an effective occupation by a stranger ; and possession must be actually gained over a definite portion of the suhstratiDx ; it is not sufficient merely to work into the seam from adjoining mines : Ashton V. Stock (1877), 6 C. J). 719, 727 ; ThompsoiiY. Hickman, [1907] 1 Ch. 550. /^^'^ ^^"^^^^ ^f^f. ^'^^ .^t^-^ , Discontinuance of possession, however, is not confined to invalid the case where a mere stranger enters upon a vacant possession. *''^°^^*^'''- Where A. purports to transfer the ownership to B., and lets him into possession, but for some reason the transfer is invalid, this is a discontinuance of possession by A., and the statute begins forthwith to run in favour of B. Thus, where a conveyance is void for non-compliance with the requirements of the Mortmain Act, the grantee will acquire a good title by the lapse of twelve years : Churcher v. Martin (1889), 42 C. D. 312. (iv.) Ilnlcs for Dispossession. Possession is maintained by the exercise of acts of ownership chan"-e of over the land, and these may be acts of beneficial user, as the possession, cultivation of the land, or acts of exclusion, as the maintenance of fences and barriers. But the acts of ownership need not be continuous, nor need they be in all cases even frequent. Piegard must be had to the character of the land, and the purposes for which the owner requires to use it, and his possession is sufficiently maintained by the doing of such acts as, under the circumstances, might be expected. On the other hand, while an existing possession is easily preserved, an adverse possession must be marked by definite acts of ownership, and since no presumption is made in its favour, it extends only over the area which is effectively occupied. Under these circumstances it is frequently a question whether A.'s possession, which has been manifested by only slight acts of ownership, has been replaced by the possession of B., so as to constitute a case of dis- possession. When, on the other hand, A. has ceased to exercise any acts of ownership at all, it has only to be determined wliether B. has exercised such acts as to place him in possession, so as to constitute a case of discontinuance of possession. The cases on the subject may be referred to the following rules : — 36 LAND AND EENT-CHAEGES. ICIIAr. I. I. Begard must he had to ilie imrj^ose for icJiuh A. desires to use the land, and though such user requires only slight acts upon the land, yet these icill he enough to preserve the possession in A., unless the acts of oionership done hy B. are inconsistent loith A.^s user of the land for his intended purpose. Tottenham v. Ill Tottenham v. Byrne (18G1), 12 Ir. C. L. R. 376, B. was the Byrne. owner of land on each side of a piibHc road, the soil and freehold of which had been reserved on the grant of the land, and were vested in A. The road was at first used as a carriage road, but B. built a wall across it, leaving a stile for foot passengers, by whom it was thenceforth used. The evidence as to the date when the wall was built was conflicting, the evidence for A. putting it in 1843, that for B. in 1839. B. also levelled the fence on each side of the road, so as to throw the site of the road apparently into his own land. The question was whether this was a dispossession of A. by B. The majority of the Court held that it was. For pulling down the boundary walls and enclosing the roads, it was pointed out that A. could have sued in ejectment, and as this was a remedy intended to restore possession there must have been a dispossession. This, however, seems to beg the question. Pigot, C.B., took a different view. The erection of the wall by B. had not stopped the user of the road by the public, including tenants of A., who used it for fetching water from a well, and hence it had been actually used in the manner contemplated when the soil of the road was reserved. "The exception," said the Chief Baron, "being of land described as a road, what was contemplated by both parties (by the grantee of the soil, and the grantor who excepted it) was the use of the road as such ; and so long as the road was used by the tenants of the grantor, or by the public, there was a use and enjoyment, quoad hoc, which, in my opinion, preserved the title in the grantor, and in those deriving under him, and which prevented the operation of ss. 2, 3, and 34 " of the E. P. L. A., 1833. This view was adopted in the Exchequer Chamber, which reversed the decision, but the case there is not reported : see lleiUij V. Thompson (1877), Ir. E. 11 C. L. pp. 247, 251. Leifjh y.Jach. In Leigh v. Jack (1879), 5 Ex. D. 264, C. A., the soil of an in- tended street, and the land on either side of it, belonged originally to L., the plaintiif's predecessor in title. In 1854, L. conveyed to the defendant a plot of land on the south side of the street, upon which he built a factory. A conveyance of land upon the CIIAr. T.] DISPOSSESSION. 37 north side was made in 1857, and in 1872 this also became vested in the defendant. The street was never dedicated to the pubhc as a highway, and from 1854 the defendant had placed upon it materials used at his factory, so as to block it up except as against foot passengers. In 1865 he enclosed an oblong portion of it, and in 1872 he fenced in the ends. Previously to this the site of the intended street had been separated from another street, into which it led, by a fence consisting of posts and a swing rail; and this fence was repaired and renewed w^ithin twenty years of the action both by L. and by the defendant. The action was brought in 1876 by the tenant for life under L.'s will to recover possession of the site of the intended street. The Court of Appeal (Cockburn, C.J., Bramwell and Cotton, L.JJ.) held that there had been no discontinuance of possession on the part of L. or the plaintiff, and it had to be determined, therefore, whether there had been a dispossession. It was held that there had not. Cockburn, C.J., and Bramwell, L.J., relied upon the acts of user by the defendant being of a merely temporary kind, and not inconsistent with the owner's enjoy- ment of the soil for the purpose for which it was intended. Cockburn, C.J., said : *' I do not think that any of the defendant's acts were done with the view of defeating the purpose of the parties to the conveyances ; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another's right." And Bramwell, L.J. : "I do not think that there was any dispossession of the plaintiff by the acts of the defendant. Acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant ; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoy- ment of the soil for the purposes for which he intended to use it." In Pie Vernon s Estate [1901], 1 I, B. 1, land was taken by a Ue Vernon's Government Department, and the boundary line between the -^®'"'^- land taken and the remaining land was ascertained by an award. The officers of the department erected three posts outside their boundary, and then, when the posts fell into decay, erected two short walls on their site. Part of the land in the extra strip thus marked off was leased to the Admiralty, but no further acts were done by the department on the remainder. It was held that there had been no discontinuance of possession by the owner, except as to the part leased to the Admiralty. There can bo no 38 LAND AND EENT-CHAEGES. [CHAP. I. Inscription on boundary wall. I'hiJlipsdH V. Gibbon. Waddingion V. Naylor. Stedman V. Smith. discontinuance, it was said, without actual exclusion. But of course it is sufficient if, while the owner is not using the land, substantial ownership is exercised by the intruder. Bound (()•)/ JVall. To this rule may be referred cases where possession of a boundary wall is retained by means of an inscription. Though the owner may have no occasion to use the wall, this assertion of his title will maintain his possession until there has been an actual possession taken by a stranger. In I'hiUipHon v. Gihhon (1871), L. E. 6 Ch. 428, the wall formed one side of a house and fronted on a street. It contained a stone with an inscription dated in 1766, stating that the wall had been built by and belonged to the East India Company, who had thrown the adjoining ground into the street. Soon after 1831 the tenant of the house, who did not hold under the company, rebuilt the wall in pursuance of a covenant in his lease, and replaced the stone. It was held that the stone was enough to save the possession of the company. "Where," said James, L.J., "there is a boundary wall, and that boundary wall remains undisturbed, and an inscription is allowed to remain on it which states to all the world that it is the boundary wall of the adjoining proprietor, it seems to us idle to suppose that any question of the Statute of Limitations, or of adverse pos- session, or of cesser of possession, could properly arise." The replacing of the stone was in effect an admission by the tenant that by rebuilding the wall he did not mean to interfere with the possession. And where A. and B. were the owners of two adjoining houses, and A. for the purpose of raising his house built upon the wall, belonging to B., of B.'s house, it was held that this was at the utmost a case of easement ; that the additional wall belonged, immediately on the building of it, to B. ; and that, as A. had not subsequently done any act to put himself in exclusive possession, he had not gained a title to the wall against B. ; Waddimiton v. Nai/lor (1889), 60 L. T. 480. In Stedman v. Smith (1857), 8 E. & B. 1, on the other hand, it was held that dispossession had been effected. The plaintiff and defendant occupied adjacent plots of ground, divided by a wall of which they were tenants in common. There was a shed on the defendant's ground contiguous to the wall, the roof of CHAP. I.] DISPOSSESSION. 39 •which rested on the top of tho wall across its whole width. The defendant took the coping stones off the top of the wall, heightened the wall, replaced the coping stones on the top, and built a washhouse contiguous to the wall, where the shed had stood, the roof of the washhouse occupying the whole width of the top of the wall ; and he let a stone into the wall, with an inscription on it stating that the wall and the land on wdiich it stood belonged to him. It was held that there was evidence of actual ouster such as would sustain an action of trespass by one tenant in common against another, and apparently, too, there was a dispossession such as to make time run under the statute. II. — Even though A. is not actitalbj using the land, B.'s acts of oivnership tvill not exclude A. and transfer the possession to B., unless they are accompanied hy an intention to possess — an animus possidendi. There is no such animus possidendi where the acts can be referred to some right short of ownership, as where they only involve a claim to an easement. In Littledalc v. Liverpool LHtkdale v. College, [1900] 1 Ch. 19, C. A., a narrow strip of grass-land led ^^T""^ from a public road between two fields formerly belonging to A., the defendants' predecessor in title, to a field belonging to B., the plaintiffs' predecessor in title, who had a right-of-way over it. A conveyance of the latter field in 1843 showed the strip on the plan, but did not convey it, and it was admitted that the title to the strip had, on the deeds, been in A., and would then be in the defendants ; but the plaintiff's claimed to have gained a title by possession. A. had had no occasion to use the strip, but some thirteen or fourteen years before the action he had told the tenant of one of his fields to pull down part of the fence between the field and the strip, asserting that the strip was his. No further act of ownership was shown on the part of A. or the defendants, but Lindley, M.E., considered that, since the defendants had not had occasion to use the land, dis- continuance of possession was not to be inferred. The question was whether there had been actual possession by the plaintiffs. To establish this the plaintiff's relied chielly on the fact that many years ago they had put up two gates, one at either end of the strip, and had kept them locked. Lindley, M.R., held, how- ever, that this might well have been done for the purpose of protecting the strip and the right of way from public invasion, 40 LAND AND RENT-CHARGES. [CHAP. I. Philpot V. Bath. Licensees. and that, under the circumstances, it did not show an intention to exclude the owner. Possession, he pointed out, involves an ammus jwssldendi — i.e. an occupation with the intention of ex- cluding the owner as well as other people. In other words, the putting up of the gates was referable to the right of way and was not evidence of possession, as it would have been in the case of a stranger. There were other acts upon which reliance was placed — the grazing on the strip, the clipping of the hedges, and the putting up of a telegraph pole — but the Master of the Eolls regarded these as unimportant, observing, as to the grazing, that it was by horses and cattle lawfully on the strip. Jeune, B., though with some hesitation, and Eomer, L.J., agreed with the Master of the Rolls, the former remarking that, in the absence of a right of way, the putting up of the gates and locking them would have been the strongest possible assertion of a right ot ownership ; see Scddon v. Smith (1877), 36 L. T. 1G8, C. A. Similar to the above case was Pldlpot v. Bath (1905), 21 T.L. E. 034, C. A., where the land of the defendant adjoined foreshore vested in the plaintiff. The predecessor in title of the defendant had placed rocks and piles on the foreshore to protect a house built on his own land from the encroachment of the sea. It was. held that in so doing he had no intention to claim ownership, and consequently there had been no dispossession of the plaintiff".. He had acquired only an easement of support ; see, too, Duke of Beaufort v. Aird (1904), 20 T. L. E. 602. To this head may be referred cases where an owner in pos- session of land allows another to enter as licensee — that is, for a particular purpose which does not involve the exclusive pos- session of the land. The licensee will not gain a title under the statute : Boldn'tt v. South-Easteni Bi/. Co. (1882), 9 Q. B. D. 424, 430; see London and North-Westcrn Bij. Co. v. Buchmaster (1875), L. E. 10 Q. B. 444. ( 'ases of dis- possession. IIL — If A. is not exerdsing any acts of ownersltip, it is immaterial icliether the case is regarded as one of dispossession, or discontinuance of possession. B. icill acquire possession, and the statute ivill run in his favour, if he exercises acts of ownership ivhich definitely mark him as occupier ; otherwise, if his acts fall short of this. In addition to the animus j)ossidcndi, B. must have definite physical control. He then possesses animo ct corpore. In the following cases dispossession was held to have been effected : — CHAP. I.] DISPOSSESSION. 41 In Smith v. Stocks (1869), 17 W. E. 1135, a gravel pit bad Smith v. ill 1804 been allotted by Inclosure Commissioners to tbe sur- '' "^'^* veyors of bighways. Tbe surveyors bad at first got gravel from tbe pit, but in 1837 tliey ceased to do tbis and procured gravel elsewbere. Tbe pit was tlien filled up and taken into culti- vation by tbe tenants of tbe owner of tbe adjoining land, and it remained in tbeir occupation for over twenty years. Tbis, it was beld, was an actual possession on bebalf of tbe adjoining owner wbicb bad extinguisbed tbe title of tbe surveyors : cf. Seddon v. Smith (1877), 36 L. T. 168, C. A. In Norton v. London and North-Western By. Co. (1879), 13 Norton v. C. D. 268, C. A., tbe company bad taken land, and bad fenced it riy. Co. off from tbe adjoining land by a post and rail fence. Inside tbis, on tbeir own land, tbey planted a quick liedge, leaving between tbe bedge and tbe fence a strip of land 4 feet 6 incbes wide. As tbe bedge grew up, tbe fence was allowed to fall into decay, and about tbe year 1846 it was removed by tbe occupier of tbe adjoining land. From tbe year 1854 until tbe commencement of tbe action in 1875 tbe strip of land was occupied and cultivated witb tbe remainder of tbe field in wbicb it lay, partly as arable land and partly as garden ground. Tbe railway company in no way interfered witb it, except tbat tbeir workmen went upon it to trim tbe bedge. Tbe Court of Appeal beld tbat tbere was a complete case of passession by tbe owner of tbe field sufficient to extinguisb tbe title of tbe company. And possession may be gained as against a railway company to tbe surface of land, altbougb a tunnel beneatb it remains in tbe occupation of tbe company : Midland By. Co. v. Wrif/ht, [1901] 1 Cb. 738. In Haii/h V. West, [1893] 2 Q. B. 19, C. A., a public bigb- f,t ' _ _ -^ clause o. any forfeiture or breach of condition, then such right shall be Forfeiture or deemed to have first accrued when such forfeiture was incurred l"eacli of . condition. or such condition was broken. " Provided always, that when any right to make an entry or S. 4. distress or to bring an action to recover any land or rent, by ^^ gutter f^r reason of any forfeiture or breach of condition, shall have first forfeiture. 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 interest 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." In Asth'ii V. Earl of Essex (1874), 18 Eq. 290, an estate had Afeyx. Ear been devised m strict settlement, subject to a name and arms clause, and, in the event of any person who should become entitled neglecting for twelve months to comply with this clause, the estate was to go to the next remainderman then in being, as if the person so neglecting were dead. A tenant in tail under the will entered in 1832, but did not comply with the clause. He remained in possession until his death without issue in 18G8. Jessel, M.R., held that the words "forfeiture or breach of condition," in sect. 4, were to be taken in their largest sense, so as to apply equally whether the effect was to give the grantor a right of re-entry under the old rules of the common law, or, as in the present case, to accelerate a 5S LAND AND RENT-CHARGES. [CHAP. I. subsequent estate under a conditional limitation. Hence the remainderman, who had neglected to take advantage of the forfeiture, nevertheless retained his right to recover the land on the natural termination of the previous estate by the death of the tenant in tail. If the condition upon which an estate is to determine requires an act to be done by the remainderman, his right of action does not arise until the act is done. By the will of a testator who died in 18G3, land was devised, to his widow for life and then to his son in fee. If the widow married again she was to lose all claim to the property on receiving £50. She remarried in 1874. The son died in 1897, and in 1898 tender of the J650 was made by the person who was heir-at-law of both the testator and his son. The right of action accrued at this last date : Connolhj v. Leahy, [1899] 2 I. E. 344. (6) Effect of Extinction of Previous Estate. Possible Where the previous particular estate is extinguished by the of remainders operation of the statute, the question arises whether the by extinction remainder is thereby accelerated so that a right of entry accrues estate. ' to the remainderman, and the statute runs against him. Under sect. 3, clause 4, of the Act of 1833, the right is deemed to have accrued when the remainder "became an estate or interest in possession " ; and sect. 2, clause 1, of the Act of 1874 adds the words, " by the determination of any estate or estates in respect of which such land shall have been held." The effect of adverse possession is not to transfer the particular estate, but to destroy it, so that there is a " determination " of the estate. But it does not necessarily follow that, because the particular estate is determined, the succeeding estate is thereby brought into possession. In favour of this result there is the analogy of the forfeiture of a life estate which gives a right of entry to the remainderman : Challis on Eeal Property, 2nd ed. p. 125 ; and. the view has been maintained that the remainders are accele- rated by the statutory extinction of the particular estate, and that on such extinction the statute commences to run against the remainderman : see Hayes' Conveyancing, vol. I. p. 269 ; 11 Jur. N. S. Part II. p. 181; and letter in 34 Sol. Journ. p. 691. But it seems more correct to say that the bar to the particular estate does not immediately affect the remainders. CHAP. I.] FUTURE INTERESTS. '">9 The iDossessor who has ousted the tenant for life takes a possessory estate jynr autre vie, and the remainderman, on the death of the cestui que vie, the quondam tenant for life, is entitled to the six years specially provided by the E. P. L. A., 1874, s. 2, clause 2, for the case of a tenant for life being out of possession. (7) Successive Estates in Same Person. Of the successive estates into which the fee is divided, more Successive' than one may belong to the same person, and the owner of the ^^ same time. particular estate, against whom time is running, may thus be the owner also of a future estate ; where, for example, there is a life estate in A., who has been dispossessed, remainder to B. for life, remainder to A. in fee. In such a case sect. 20 of the Act of 1833 provides that a bar to the first estate of A. is a bar also to his subsequent estate, unless in the meantime possession of the land has been recovered in respect of B.'s intermediate estate : — " When the right of any person to make an entry or distress R. p. L. A., or brinw an action to recover any land or rent to which he may 1^^^' ^^ 2^- ® ■' . . •Ill Present and have been entitled for an estate or interest in possession shall future estates have been barred by the determination of the period hereinbefore in same 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 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 though 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," An instance of the application of the section occurred in Doe Doe v. v. Moulsdah (1847), 16 M. & W. 089. A term was created in ^^o"?«'^«'*^- 1784 for the lives of three persons, the last of whom died in 1835. Under various conveyances, devises, and descents, Lewis Jones in 1812 became entitled to the term as heir-at-law of his grandmother, Ann Jones, and to the reversion in fee as heir-at- law of his uncle, Eichard Jones ; but the widow of the previous o\Yner of the term remained in possession till her death in 1843. 60 LAND AND RENT-CHARGES. [CIIAI'. I. Earlier estate must give right to possession. Estates of appointees. In 1846 ' ejectment was brought by Mrs. Hall, who claimed the fee as heiress to her brother Lewis Jones, who had died in 1834. There was a question whether the term had not merged in the fee upon the union of the two interests in Lewis in 1812, and then the statute would clearly have been a bar. Assuming, however, that there was no merger, the title of Lewis Jones to the term was barred in twenty years from 1812 — that is, in 1832 ; and although, had the reversion been his only estate, time would not have commenced to run against him under sect. 3, clause 4, until it fell into possession in 1835, yet the co-existence in him of the title to the term and the title to the fee brought in the express provision of sect. 20. Consequently, his title to the term having been barred, the title of his successor to the fee was barred also. But, in order that sect. 20 may operate, the earlier estate must have conferred upon its owner a right to possession of the land. In Lmlhrooh v. Lndhroolc, [1901] 2 K. B. 96, C. A., A., who was a beneficiary under the will of a mortgagor, but who was not, under the trusts of the will, absolutely entitled to possession, paid off the mortgage and took a conveyance of the mortgaged premises. There was a possession adverse to the mortgagor's successors in title from 1885 to 1899, but the mortgage was kept alive by payment of interest. It was contended that, since the adverse possession barred A.'s benejQcial interest, it barred also, uuder sect. 20, his title as mortgagee. Inasmuch, however, as A.'s title as beneficiary did not enable him to make an entry or distress, or bring an action to recover the land within the words of the section, his earlier estate did not come within its operation, and consequently his title as mortgagee was not barred. The section applies not only to future estates marked out by a definite course of limitation, but to any "estate, interest, right, or possibility, in reversion, remainder, or otherwise," to which the owner of a previous estate against whom the statute has run was entitled. These words, however, are used in their technical sense — "right," for instance, applies to an estate turned to a right of entry — and they do not include a general power of appointment. This is not technically an interest, right, or possibility. Hence a bar to the estate of the appointor is not a bar also to the estate taken under the appointment : He Earl of Devon's Settled Estate, [1896] 2 Ch. 562. CHAr. I.] ESTATES TAIL. 61 In Clarke v. Clarke (1868), Ir. E. 2 C. L. 895, lands were Successive devised to A., with limitation over to B., in case A, "took up "[ftrv °^ with " a Eoman Catholic, or died without a lawful heir. Both Clarke v. events happened, the former on 15th March, 1847; the latter on 6th Januar}', 1867. B. claimed the lands in an action commenced on 1st June, 1867, but it was held that since his right under the first event was barred, his right under the second event was, by sect. 20, barred also. This, however, is opposed to Astlei/ v. Earl of Essex (1874), 18 Eq. 290. The conditional limitation was within sect. 4 of the E. P. L. A., 1833, supra p. 57, and B. was not bound to take advantage of the forfeiture in 1847. Sect. 20 is subject to the proviso that it shall not operate Eecovcryof if the land has been recovered in respect of an intermediate Iq^vccI of '^ estate or interest. For the proviso to take effect it is not intermediate iiitprGst necessary that there shall have been an actual recovery by entry or action. It is sufficient that possession has been in fact held under such estate. In Doe v. Liversedge (1843), 11 M, & W. 517, the facts in which have been already shortly stated {supra, p. 52), the assignee in l)ankruptcy of the husband had vested in him the husband's life estate and remainder in fee ; but the continuance in possession by the wife in respect of her intermediate life estate was a " recovery " of the land which saved the remainder in fee, assuming the husband's life estate to have been barred by the statute. (8) Estates Tail. In the case of estates tail, the effect of the statute has to be issue in tail, considered as regards the issue in tail and the remainders expectant on the estate tail. The issue "claim through "the tenant in tail within the meaning of sect. 1 of the Act of 1833, and consequently, under sect. 1 of the Act of 1874, when the statute is running against the tenant in tail, it is running against the issue also. If, however, the tenant in tail is pre- vented by statute from doing any act whereby he can affect the interest of his heirs in tail, it is not competent for him to do this by neglect, and hence, in the event of his being out of possession, the statute will not run against them : Earl oj Aher- Havennij v. Erace (1872), L. E. 7 Ex. 145. If he parts with the right to possession during his life, by an assurance which does 62 LAND AND EENT-CHAEGES. [CHAP. I. Remainders on estate tail. E. P. L. A.. 1833, s. 21. Statute running against tenant in tail. S. 22. Death of tenant in tail ■while out '<^ tanto : Att.-Geu. v. Payne (1859), 27 Beav. 168; Att.-Gen. v. Dareij (1859), 4 De G. & J. 136. And valuable consideration includes the consideration of marriage. Hence, if the trustee settles the trust property upon the occasion of marriage, the statute runs in favour of the persons entitled under the settlement (Petre v. Petre (1852), 1 Drew. pp. 387, 397), including the persons entitled to an ultimate remainder in fee limited by the settlement to the settlor himself : S. C. ; though this latter point cannot be taken to be settled : Smith v. Smith (1876), Ir. E. 10 Eq. p. 281 ; see 1 L. E. Ir. 206, C. A. Sect. 25 enacts generally that upon a conveyance for value " the right of the cestui que trust " shall be deemed to accrue, and there is no provision, as under sect. 3, for the case of future interests. Hence it would seem that twelve years is a bar to all persons entitled under the trust, as well in remainder as in possession, with an extension of time, however, in the event of the cestui que trust in possession being under disability: Magdalen College v. Att.-Gen. (1857), 6 H. L. C. p. 215. The CIIAr. I.] TRUSTEE AND CESTUI QUE TRUST. 71 allowance for disability simply extends the time within which a cestui que trunt whose right of action has accrued may bring the action ; it does not. affect the time of accrual of the right. It was suggested by Lord St. Leonards in Thompson v. Simpson (1841), 1 Dr. & War. p. 489, that, as against future equitable interests, the statute would not run until they fell into possession. But in that case the trustee who conveyed had himself a beneficial life interest, to which during his life the possession of the pur- chaser could be referred, and under such circumstances the statute would not run against the remainderman until the death of the trustee tenant for life. For an ordinar}- case of a con- veyance by a trustee the rule as stated appears to be correct. The words of sect. 25 require that the date of the conveyance to the purchaser shall fix the time of accrual of the right of action in respect of the equitable interest as against every person falling under the description of cestui que trust. (i,) Express Trusts. To constitute an express trust there must be a trust How au ^' expressly declared by a deed, or a will, or some other written L^cou-'* instrument": jjcr Kindersley, V.C, in Petre v. Petre (1852), stituted. 1 Drew. p. 393. As to lands, writing is required by sect. 7 of the Statute of Frauds ; but as to personalty (other than lease- holds), the trust can be declared by parol: Harris v. Truman (1881), 7 Q. B. D. p. 357 ; Sands to Thompson (1883), 22 C. D. 614. So in Cunnimiham v. Foot (1878), 3 App. Cas. p. 984, Lord Cairns, C, said that by au express trust he understood the Legislature to mean " a trust which arises upon the con- struction of the written instrument, not upon any inference of law imposing a trust upon the conscience ; a trust arising upon the words of the instrument itself " : cf. Dickinson v. Teasdale (18G2), 1 D. J. & S. p. 59 ; Sands to Thompson {supra). It is not essential, however, that the trust should be declared in plain and unambiguous terms. The use of the word "trust " is not necessary : Commissioners of Donations v. Wyhrants (1845), 2 Jo. & Lat. p. 189 ; and the trust is none the less express because it has to be made out from all the terms of the instrument : see prr Rigby, L.J., in Pie Williams, [1897] 2 €h. 12, at p. 27. Thus, where the various elements of the trust — the property subject to it, the persons to be benefited, 72 LAND AND KENT-CHAEGES. [CIIAr I. Mortgage by way of trust for sale. Statute runs against con- structive trusts. and the interests they are to take — are clearly ascertained (Mctlim V. Keujldeij (1791), 2 Ves. p. 335; Ktu(jht v. Knujht (1840), 3 Beav. p. 173), an express trust may be created by any words which indicate an intention that the person to whom the property is given shall be bound by a trust ; see Pn^Jiman v, Filliter (1795), 3 Ves. 7. But the Courts are less ready than formerly to construe words of recommendation as creating a "precatory trust": Lamhe v. Evans (1871), 6 Ch. p. 599; and even the words " in full confidence " do not necessarily have that- effect : Re Adams and TJic Kensington Vestry (1884), 27 C. D. 394, C. A. ; Be Williams {supra) ; cf. Be Hanhury, [1904] 1 Ch. 415, C. A. ; H. L. snh nam. Coniskey v. Boicring Hanhnry, [1905} A. C. 84; Be Diggles (1888), 39 C. D. 253, C. A. ; Be Hamilton [1895], 2 Ch. 370. Moreover it must be possible for the relation of trustee and eestui que trust to be established. A testator cannot, on a devise of land in tail, make the devisee truste& for the remainderman after the estate tail, so as to prevent him from barring the entail : T>awhlns v. Penrltyn (1878), 4 App. Cas, 51. As to persons who are treated by courts of equity as. express trustees, though not strictly such, see infra, p. 274. Where a mortgage is created in the form of a trust for sale,, the relation of the parties, so far as concerns the land, is solely that of mortgagor and mortgagee, and there is no express trust to exclude the statute : Kirlucood v. Thompson (1865), 2 H. & M. p. 402. Hence the mortgagee can gain a title against the mortgagor by twelve years' possession : Locking v. Parker (1872)^ 8 Ch. 30 ; Chapman v. Corpe (1879), 27 W. R. 781. And where the mortgagor has thus lost his equity of redemption, his rights- do not revive if, upon a subsequent sale, the mortgagee professes. to sell under his trust for sale as mortgagee and not as owner : Be Alison (1879), 11 C. D. 284, C. A. ; see Warner v. Jeieoh (1882),. 20 C. D. 220. (ii.) Constructire and Besulting Trusts. Distinguished from express trusts are trusts which arise by operation of law, and which again may be divided into con- structive and resulting trusts. Sometimes implied trusts are spoken of as a separate class (see Trustee Act, 1893, p. 50), but for the present purpose this is unnecessary : see Cook v. Fountain (1672), 3 Swanst. App. 585 ; Portloek v. Gardner (1842), 1 Hare, p. 607. Subject to the distinction as to resulting trusts. CHAr. I.] TRUSTEE AND CESTUI QUE TRUST. 73 mentioned subsequently, the statute in such cases can be set up by the trustee. "If," said Kindersley, Y.C., in Petvc v. Petre (1852), 1 Drew. p. 393, "a person has been in possession, not being a trustee under an instrument, but still being in under such circumstances that the Court, on the principles of equity, would hold him a trustee, then the 25th section of the statute does not apply ; and if the possession of such a constructive trustee has continued for more than twenty years, he may set up the statute against the party who, but for the lapse of time, would be the right owner." It has been held, accordingly, that the statute is not excluded Cases of con- in the following cases : — Where a tenant for life of leasehold t^l^ts^^^ property obtains a renewal of the lease to himself: Petre v. Petre {supra); Be Danes Estate (1871), Ir. E. 5 Eq. 498; where mone}' is secured by a vendor's lien : Toft v. Stephenson (1848), 7 Hare, 1, decided when charges on land were saved by express trusts ; where the trust depends on questions of fact and law, and evidence has been lost : Malone v. O'Connor (1859), 9 Ir. Ch, E. 459 ; and where the husband of a legatee took from the executor, in satisfaction of the legacy, an assignment of lease- holds alleged greatly to exceed the legacy in value : Pijrah v. Woodcock (1871), 24 L. T. 407. Where a mortgage is given to secure an advance made by a trustee, the mortgagor is not an express trustee so as to prevent the statute from clearing the land of the mortgage : Re Scott (1858), 8 Ir, Ch. E. 316. A possession which is merely wrongful creates no trust at all, still less an express one ; and a husband, who, being entitled to 'one moiety of an estate, enjoyed the other in right of his wife, and who held over after her death, gained thereby a title to such other moiety against the heir : Ex parte Hasell (1839), 3 Y. & C. Ex. G17. A person who assumes to act in an express trust without Trustee Phillips (1847), 10 Q. B.130; Melling \. Leal {supra) ; but, at any CHAP. I.] TRUSTEE AND CESTUI QUE TRUST. 77 rate, any act on the part of the cestui que^ trust will be sufficient which would have amounted to a disseisin under the old law. And where the legal estate is outstanding in a bare trustee and the beneficiary is in possession, there is not even a tenancy at will, and the legal estate will be vested in the beneficiary in twelve years : He Cussons, Ltd. (1904), 73 L. J. Ch. 296. The above statement assumes that the ecstui que trust on entering recognizes the title of the trustee. If he enters without such recognition, no tenancy at will is created ; his possession is not the possession of the trustee, and the statute runs against the latter : Burroughs v. M'Creight (1844), 1 Jo. & Lat. 290 ; Boiling v. Hobday (1882), 31 W. E. 9. The tenancy at will only arises where the cestui que trust is in Cestui que occupation. If he does not go into occupation, but merely receipt of receives the rents, at the same time recognizing the title of the ^'*^"*^- trustees, he receives them as agent for the trustees, and there is no tenancy at will between him and the trustees which will prevent the statute running in favour of the occupier. Hence an occupier, who has been let into possession by the cestui que trust as tenant at will or yearly tenant, can, by non- payment of rent, gain a title against the trustee : Melling v. Leak (1855), 10 C. B. p. 669. (ii.) Constructive Trusts. The proviso to sect. 7 should apparently be restricted to Constructive express trusts : Doe v. PiocJc (1842), Car. & M. 549 ; cf. BecJc- ford V. Wade (1805), 17 Ves. 87 ; Sands to Thompson (1883), 22 C. J). 014. It thus corresponds with sect. 25 of the same Act, and the possession of a cestui que trust under a constructive trust is left to the ordinary provisions of the statute. The trustee's right of entry accrues at the end of the first year of the y-estui que trust's occupation, and in twelve years from that time the trustee's title is extinguished without the cestui que trust doing anything adverse to it. In ordinary cases this is probably convenient. There is no reason for prolonging the trust, and in a comparatively short time the cestui que trust's interest is clotlied with a legal title, and the trust is put an end to. But in the case of a cestui que trust with a limited interest, it has been supposed that the result would be to vest the legal fee in him, discharged from the equities of persons entitled in remainder, trusts. 78 LAND AND EENT-CHARGES. [CHAr. I, Drummonil v, Sant. Liinitud es- tate under constructive trust. and to avoid this the proviso to sect. 7 was, in Dnimmond v. Sant (1871), L. E. C Q. B. 763, extended to constructive trusts. In that case A., for more than twenty years prior to 1867, was in possession of land which had heen reclaimed from the Thames. Under the circumstances of the case, and hy virtue of the statute authorizing the reclamation, the legal fee of the land was in B., and A. was entitled under an agreement for a lease for ninety-nine years from 1768. It was argued that B. and A. stood in the relation of trustee and cestui que trust ; that A., on entering, became tenant at will to B, ; and that, under sect. 7, he had gained a title against B., unless the proviso applied. It was held that the proviso did apply upon the ground that it applied to " actual direct " trusts, and that the trust here was of this nature. Apparently, any constructive trust clearly established would be an "actual direct" trust within the meaning of the decision, and the effect, if the decision is really to be referred to this ground, is to make the proviso to sect. 7 apply alike to express and constructive trusts. There are, however, two ways of dealing with such cases which make this extension of the proviso unnecessary. Under the above circumstances B. had no right to possession of the land during the ninety-nine years, and if he had attempted to re-enter he would have been restrained in equity from interfer- ing with the possession of A., the cestui cjue trust, until this term had expired. It follows that after the expiration of the term, the cestui que trust and his successors in title would be restrained from setting up the statute in any action to recover possession brought by the trustee or his successors in title. Formerly this required separate proceedings in equity in aid of the ejectment : see Scott v. Scott (1854), 4 H. L. C. 1065 ; and the judgment of Maziere Brady, L.C., 11 Ir. Eq. R. p. 509, in the same case: "I think if this bill had been filed to aid this ejectment, the defendant would have been restrained from relying on that bar " ; and see 38 Solicitors' Journal, p. 612. But under the present practice no separate proceedings are necessary. In the action brought to recover the land on the termination of the cestui que trust's estate he can be prevented from setting up the statute. But the simpler and more satisfactory way is to treat the constructive trustee as having, during the continuance of the CHAP. I.] TRUSTEE AND CESTUI QUE TRUST. 79 cestui que trust's limited estate, no right of entry at all, so that the statute does not commence to run against him. This course, which was adopted in Warren v. Murray/, [1894] 2 Q. B. 048, C. A., explains the result in Drummond v. Sant, and leaves the proviso to sect, 7 applicable only to express trusts. Moreover, the suggestion made in Drum)}iond v. Sant that the destruction of the trustee's estate would carry with it the destruction of the future equitable estates, was, according to the present doctrine of the relation of legal and equitable estates, groundless. The futm'e equitable estates would still be capable of enforcement when they fell into possession : infra, p. 80. (3) In favour of a Sti-auger. A stranger in possession of land may either hold adversely O-) Disseisiu to the trustee, or, admitting the trustee's title, may claim to hold under him as cestui que trust. Previously to 1833 it was settled that, where he held adversely to the trustee, the statute ran in his favour as against the trustee and also the cestui que trust. " A cestui que trust,'' said Lord Eedesdale, in Hovenden v. Anncsh'ii (1806), 2 Sch. & Lef. p. 629, "is always barred by length of time operating against the trustee. If the trustee does not enter and the cestui qui trust does not compel him to enter, as to the person claiming paramount the cestui que trust is barred." " If," said Plumer, M.E., in Widdoicson v. Earl of HarruKjton (1820), 1 Jac. & W. p. 566, " the bar attaches on the legal title, it attaches also on the equitable title " : cf. Lewellin v. Machcorth (1740), 2 Eq. Cas. Abr. 579 ; Pentland v. Stokes (1812), 2 B. & B. p. 75 ; Preston on Abstracts, II. 378. This followed from the conception of a trust as a matter operating only on the conscience of the trustee. Until recently it has been generally assumed that the Whether bar E. P. L. A., 1833, did not affect this principle, and, if the title bar \() all of the cestui que trust is still treated as being entirely dei)endent equitable interests on that of the trustee, the fact that, under sect. 84, the trustee's title is extinguished furnishes strong reason for saying that the cestui que trust loses his interest by the operation of the statute against the trustee. If this is so, it also follows that the cestui que trust can have no allowance on the ground of disability : cf Wijck v. East India Co. (1734), 3 P. Wms. 309 ; so LAND AND EENT-CHAEGES. [CHAP. I. He Nislet (t" Pott's Con- tract. Bar to the trustee not now a bar to all bene- ficiaries. nor, if his estate is future, is the operation of the statute post- poned till it falls into possession. Accordingly opinions have been expressed that both these results follow : Re Scott (1858), 8 Ir. Ch. p. 323 (as to disabilities), and Cooper v. Warrc (1865), 18 Ir. Jur. 24 (as to remainders) ; see Lewin on Trusts, 11th ed., pp. 8-10, 271, 1087. In Qidnton v. Frith (1868), Ir. R. 2 Eq. p. 416, the question how far a possession adverse to the trustee's title would affect the cestui que trust was treated as an open one. In Stewart v. Marquis of Conumjham (1849), 1 Ir. Ch. R, 534, it was considered that it would at any rate bar executory trusts. On the other hand, in Scott v. Scott (1854), 4 H. L. C. 1065, Lord Cranworth, C, suggested that a legal estate got by disseisin would not affect the rights of parties equitably entitled, and this suggestion has recently been embodied in an authoritative decision in Re Nishet & Potfs Contract, [1906] 1 Ch. 386, C. A. It follows from that case that equitable interests rank as independent estates in the land, and continue to be enforceable against the legal owner of the land for the time being, whether he has acquired it by assignment or by disseisin, unless, in the former case, he can claim to be a purchaser for value without notice — a claim which of course cannot be made by a disseisor. The actual point in Re Xishet cC- Pott's Contract related to restrictive covenants. It was decided that these created in favour of the covenantee an interest in the land which was independent of the estate of the covenantor, and that they were binding upon the land in the hands of an adverse possessor who had gained a legal title in consequence of the lapse of the statutory period and the extinction of the title of the covenantor. But the interest in land created by a restrictive covenant is at most equitable, and the same considerations apply with greater force to trusts which confer upon the cestui que trust a direct interest in the land itself. The reason for saving restrictive covenants from sharing in the extinction of the covenantor's estate was based by Collins, M.E., on the language of sect. 34. The statute does not begin to run against a person until that person has been put to what is generally called his "right of entry"; and then, after the statutory period, the right and title of such person are extinguished. In the case of a restrictive covenant, the extinction of the title of the covenantor, does not affect the covenantee, who is not put upon the assertion of his right unless and until that right has CHAP. I.] TRUSTEE AND CESTUI QUE TRUST. 81 been interfered with in some way. Similarly, it would seem, in the case of an equitable estate, the extinction of the trustee's title under sect. 34 is confined in its effect to that title. The interest of the cestui que trust is an independent interest, and the operation of the statute against this interest is quite separate from its operation against the estate of the trustee. The statute does not run against the cestui que trusfs interest until the cestui que trust has a present right to assert it, and, moreover, the cestui que trust is entitled to any additional time allowed by the statute for disability. This view of the separate operation of the statute as regards Equitable the estate of the trustee and the estates of the cestui que trusts dependent on is supported by the consideration that in an action by the cestui estate of trustcG que trust to recover the land, it is no longer necessary to join the trustee : Antrim, etc., Co. v. Stewart, [1904] 2 I. E. 357, C. A. The rule to the contrary laid down in Allen v. Wood (1893), 68 L. T. 143, C. A., applies only to the case of an executory trust, and then the alleged trustee must be before the Court in order that the trust may be established against him. The non- dependence of equitable interests upon the estate of the trustee, and the possibility that they may exist when the trustee's estate has been destroyed, involves a considerable breach with the old law, and it has not passed without criticism : see Mr. T. Cyprian Williams' articles in 51 Solicitors' Journal, pp. 141, 155 ; but it is not likely to be overruled. It is probable, however, that the principle only applies where the cestui que trusts have equitable interests in the land itself. Where they are only entitled to share in the proceeds of sale of the land, the extinction of the trustee's title extinguishes the trust for sale : Boiling V. Hobday (1882), 31 W. K. 9 {infra, p. 83) ; and then, apparently, the cestui que trusts cease to have any claim against the land. In the case already noticed {supra, p. 77), where a person, who has been let into possession by the cestui que trust acting as agent for the trustees, gains a title against the trustees, he would gain a title also against such cestui que trust, though not, if the above view is correct, against cestui que trusts in remainder. But the possessor may recognize the legal title of the trustee, (ii.) Possession and may claim to hold adversely to the cestui que trust alone, adverse only *' *' -^ to cestui que This was the case which was considered at great length in tru>it. Cholmondchij y. Clinton (1820), 2 Jac. & W. 1 ; the difficulty T.L.A. G 82 LAND AND RENT-CHARGES. [CHAP. I. Receipt of rents from trustee is not equivalent to adverse possession. being caused by the doubt whether, under the old law, equity- could recognize the bar of the statute when there had been no disseisin. It was held that it could, and that an equitable owner's title could be barred notwithstanding that the legal estate was outstanding. Under the present law no such question can arise. In whatever proceedings the true cestui que tyiist seeks to enforce his claim to possession against the de facto cestui que trust, this claim is an equitable claim, which is not saved as against the de facto cestui que trust by sect. 25 of the Act of 1833, this enactment only referring to suits against the express trustee and jDcrsons claiming through him. It is accordingly barred in the same manner as if it were a legal claim. But this assumes that the stranger is in possession of the land or in immediate receipt of the rents and profits. He is in the position of owner, although he claims only under an equitable title. He makes a wrongful claim to be cestui que trust, and as such is let into possession. If he merely receives the rents and profits from the trustee, the result is different. The trustee is in possession and he holds for the person really entitled. In Lister v. Pichford (1865), 13 W. E. 827, trustees, who were in the receipt of rents, paid them to A. instead of to B. who was the actual cestui que trust. More than twenty years elapsed before the mistake was discovered, but Eomilly, M.E., held that B.'s right was not barred. The trustees were in possession for the actual cestui que trust, and their mistake as to who the actual cestui cjue trust was did not affect his rights. I'ossessiou one cestui que trust adverse to trustee. (4) 1)1 favour of one Cestui que Trust against tlic liest. The case where one of several cestui que trusts has been in possession of more than his share of the trust estate depends upon principles which have been considered under the previous heads. Under the old law possession gained adversely to the trustee, and held long enough to bar the trustee's estate, was a bar at the same time to the equities of the other cestui que trusts: see TIarmood v. Oglander (1803), 8 Yes. p. 131. At present the result is the same, provided that the cestui qui trusts who are excluded have present interests and are under no disability. Thus, in Burrouijhs v. M'Creir/ht, €HAP. I.] TRUSTEE AND CESTUI QUE TRUST. 83 (1844), 1 Jo. & Lat. 290, lands were conveyed to a trustee and his heirs in trust for five persons as tenants in common in fee. For more than t\Yenty years four of the five cestui que trusts yfeve in the exchisive enjoyment of the rents and profits, and the trustee never acted in the trust. The fifth cestui que trust was held to he harred. The other four, said Lord St. Leonards, were not persons w4io had placed themselves in the shoes of the trustees, but persons who, in spite of the trustees, had continued to receive the whole of the rents of the estate for their own exclusive benefit. In IMling v. HoMay (1882), 31 W. E. 9, real estate was devised in trust for A. for life, and then on trust for sale and division of the proceeds between B., C, D., and E. equally. After the death of A., the possession was held by D. and E., and after E.'s death by D. for more than twenty years, to the exclusion of B. and C. This was held to extinguish the title of the trustees and also of B. and C. Li a case similar to Burroughs v. M'Creiglit the statute would now be treated as running independently as against the trustees and as against the cestui que trusts, so that the latter would be entitled to claim allowance for disability, if any, and, if their estates were future, the statute would not run till they fell into possession : supra, p. 81. But under the circumstances in Boiling v. Hobday the cestui que trusts had no direct interest in the land, but only in the performance of the trust for sale, and the ground upon which the case was decided, namely, that, since the trustee's estate was gone, the trust was gone also, seems to be still correct. " By the extinguishment of the legal estate, the trusts by which that estate was affected were also extinguished " : per Chitty, J. (31 W. E. p. 11). Where one cestui que trust, while recognizing the title of the Possessiou . . -^ . ° ° under trustee trustee, is in actual possession of the whole or of more than his adverse to share of the land, time will run in his favour against the rest, f^l^frulfJ!^ so that he will gain a title to the whole, or so much as he possesses. For this purpose he is in the position of a stranger. An opposite opinion seems to have been expressed by Turner, L.J., in Knight v. Boivyer (1858), 2 Be G. & J. p. 441, but there the trustees were in receij^t of the rents, and the case falls within the principle of Lister v. IHclford (1865), 13 W. E. 827, namely, that the trustee, when in possession, holds on behalf of the persons rightfully entitled, notwithstanding the lapse of time. When one cestui que trust is actually in possession, or in receipt 8i LAND AND EENT-CHAEGES. [CHAP. I. of rents and profits, an action against him does not fall within sect. 25, which excepts actions " against the trustee or any person claiming through him " from the general har of sect. 24 against equitable claims. But where the lands are leasehold, and there are from time to time surrenders of the leases and fresh grants to the trustees, this may have the effect of preventing the cestui que trusts of part from gaining a title by possession to more than their share of the land : see East Stonelwuse Urban Council V. Willoughhy Brothers, [1902] 2 K. B. 318 {iufra ; p. 111). CflAP. T] MORTGAGOR AXD MORTGAGEE. 85 ' Section YI. — Mortgagor and Mortgagee. Where land is subject to a mortgage, the statute may operate Divjaion of (1) in favour of the mortgagor against the mortgagee ; (2) in ^" ^^^ ' favour of the mortgagee against the mortgagor; and (3) in favour of a stranger, whether against the mortgagor only, or against both the mortgagor and the mortgagee. (1) In Favour of the Mortgagor'. It is sometimes said that the mortgagor in possession is tenant at will to the mortgagee, but the expression must be taken with caution : Keecli v. Hall (1778), 1 Doug. 21 ; Moss v. GalUmore (1779), 1 Doug. 279. In particular there is no such tenancy as to deprive the mortgagee of his immediate right to possession: Birch v. Wright (1786), 1 T. E. p. 383. Perhaps the mortgagor more resembles a tenant at sufferance : Doe v. Maiseij (1828), 8 B. & C. 767 ; Pope v. Biggs (1829), 9 B. & C. 245 ; but no legal relation, it has been observed, affords a com- Ijlete analogy : Cholmondelcg v. Clinton (1820), 2 Jac. & W. p. 183; cf. Doe v. Barton (1840), 11 A. & E. p. 314; Sands to Thompson (1883), 22 C. D. 614. A mortgagee's right of entry is kept alive during the twelve years following any payment under the mortgage by virtue of the E. P. L. A., 1837 (1 Vict. c. 28). " It shall and may be lawful for any person entitled to or claiming under any mortgage of land, being land within the defi- nition contained in the first section of the [R. P. L. A., 1833], to make an entiy or bring an action at law or suit in equity to recover such land at any time within twelve years next after the last payment of any part of the principal money or interest secured Ijy such mortgage, although more than twelve years may have elapsed since the time at which the right to make such «ntry or bring such action or suit in equity, shall have first accrued, anything in the said Act notwithstanding. In the E. P. L. A., 1833, no special provision was made for the case of a mortgagor in possession ; and since the mortgagee has a right of entry, possibly on the execution of the mortgage, Relation of mortgagor to mortsrauee. ^rortgagee's riulit of entry. E. r. L. A., 1837, as altered by R. P. L. A., 1874, 8. 9. Time runs from last paymcut of principal or interest. 86 LAND AND EENT-CHAKGES. [CHAP. I. and in any case, on default in payment of the principal at the '■ , specified day, it was considered that, under the general rule of the statute, time would, at one of such dates, run against him, notwithstanding that interest on the mortgage debt was being regularly paid: Doc v. WilUams (1836), 5 A. & E. 291 ; c/. Dor- V. Lifihtfoot (1841), 8 M. & W. 553. Hence, by the above section, as altered by sect. 9 of the E. P. L. A., 1874, it was provided that any person entitled to or claiming under any mortgage of land might recover the land within twelve years next after the last, payment of any part of the principal money or interest, although more than the statutory period had elapsed since the first accrual of the right of entry or action : see Heath v. Puf/lt (1881), 6 Q. B. D. p. 3G2. The effect is that the statute com- mences to run upon default in payment at the day fixed for redemption, but it may be continually stopped by payment of interest. Secoucl Where there are two mortgages and no payment is made in ^ ■ respect of the second mortgage, the statute runs against the second mortgagee, notwithstanding the fact that the legal estate is outstanding in the first mortgagee : Kihhlc v. Falrthornc, [1895] 1 Ch. 219 ; and it has been held that it is the same even though ■^s^/i^^ ^^ ^^® -^^^^ mortgagee is in possession : Samuel Johnson and Sons: •> .^ //^ Z/A/Z^^^^'^-) ^' ^''''"'^'^j [1907] 2 Ch. 533. But this seems to be incorrect.. ^ -^ Upon the first mortgagee taking possession the second mortgagee / ' ceases to have a right of entry, and his interest becomes, for the purpose of the statute, a future interest : Be Bermingliaui's Estate (1870), 5 Ir. E. Eq. 147 ; ef. E. P. L. A., 1833, s. 42, as to arrears- of interest in such a case, infra, p. 179. Eifect (if Upon the payment being made the statute immediately paymen . begins to run afresh ; and since the mortgagee's title is ex- tinguished at the end of twelve years, a payment after this l^eriod does not help him, even though made in pursuance of an order obtained in a foreclosure action : Henumnij v. Bkinton (1873), 42 L. J. C. P. 158. Where the mortgagor has assigned the equity of redemption, payment can be effectually made either by the assignee: Forsijth v. Bristotre (1853), 8 Ex, 716; or by the mortgagor: Cliinncri/ v. Evans (1864), 11 H. L. C. 115; and generally as to the effect of payment, see infra, Chap. VII. Uuion of If the same person temporarily unites the characters of ''^''^ft^'i^'! ^^ mortgagor and mortgagee, he is considered as applying the and rents and profits in keeping down the interest, and accordingly, mortgagee. CHAP. I.] MORTGAGOR AND MORTGAGEE. 87 where a tenant of life of land is entitled to a charge upon it, the statute does not run against the charge during his life : Burrell ^^ >4/c2^^ /^. V. Earl ofEgremont (1844), 7 Beav. 205, 237. And if the tenant^^/^ >y^ for life is beneficially entitled to receive interest, and is liable to have the interest deducted from income, it makes no difference that the land and the charge are vested in different sets of trustees; Topham v. Booth (1887), 35 C. D. 607. The same principle applies where a married woman is entitled to the interest for her separate use, and her husband is liable to pay it, and the two have a common purse: Re Haiccs (1892), 62 L. J. Ch. 463. And it applies generally where the title to an existing fund is in question : ^lUh v. Bovtlucick (1865), 35 L. J. Ch. 31 ; but not where the interest would arise from a fund not in existence, though covenanted to be brought into existence : Spiclrrnell v. Hotham (1854), Kay, p. 676. And the statute does not run where the mortgagee is tenant in common of the equity of redemption, for a tenant in common is entitled to receive the whole rents subject to accounting to his co-tenant : Wjiunc V. Stiian (1847), 2 Ph. 303. Where the property subject to the mortgage is reversionary. Mortgage" of time does not run against the mortgagee until it falls into fut"'®^ . '^ . . interest. possession. He has, indeed, a present right to bring a foreclosure action, and so to obtain a transfer to himself of the reversionary beneficial interest of the mortgagor : Sinclair v. Jackson (1853), 17 Beav. p. 410. Hence it might be supposed that as between himself and the mortgagor the statute would, in the absence of payment of interest, run forthwith. But foreclosure is treated, for the purpose of the statute, as a mode of recovering pos- session of land, and in this view it is not effective so long as the mortgaged interest is future. The mortgagee, therefore, can bring foreclosure within twelve years of the interest falling into possession, although his personal remedy for the debt may then be barred : Ilufiill v. Wilkinson (1888), 38 C. D. 480 ; Ec Conlan (1802), 29 L. E. Ir. 199. If, during the currency of the statute, the mortgagee brings Foreclosure foreclosure and obtains an order absolute, since the effect of the "<|'^^tes a new order is to vest in him a new title as owner, he can assert this title at any time within twelve years from the date of the order. In Uratli V. Piiiih riMSl), (}. B. ]). 345, C. A. ; 7 App. Cas. 235, Ueaih v. a legal mortgage of land liad been made to the plaintiffs in ^'"^''• 1M56. In 1H59 the equity of redemption was conveyed by the S8 LAND AND RENT-CHAKGES. [CHAP. I. mortgagor, Stephen, to the defendant. In 1870 the plaintiffs filed a bill against Stephen and the defendant for redemption or foreclosure, and an order for foreclosure absolute was made in 1877. There was no proof of payment at any time on account of principal or interest, nor of any acknowledgment in writing of the plaintiffs' title. Lord Selborne, C, in delivering the judgment of the Court of Appeal, pointed out that, on the principle of Cashornc v. Scarfe (1737), 1 Atk. 603, the mortgagor is, while he remains in possession, substantially the owner of the land, and the mortgagee a mere incumbrancer ; and the effect of the foreclosure is to vest in the person who was previously an incum- brancer the ownership of, and beneficial title to, the land. "It follows," he said, "from this state of the law, that when the owner of land under an ordinary decree of foreclosure absolute takes proceedings to recover possession of that land, he seeks possession of that which, by a title newly accrued, has for the first time become his own property ; and that it can make no difference whether the title which he previously had as a mere incumbrancer was, or was not, protected b}^ the legal estate. The possession which he now claims, and the right by virtue of which he seeks to recover it, are substantially different from the possession which he might before have claimed, and from the right by virtue of which he might have claimed it." Technically, Lord Selborne brought the case within the statute by holding that the foreclosure amounted to a forfeiture of the mort- gagor's equitable estate — an estate which, since the Judicature Acts, at any rate, must be recognized in a Court of Law — and that the mortgagee's right of action accrued, under the last clause of sect. 3 of the Act of 1833, at the date of such forfeiture. In the House of Lords (7 App. Cas. 235) Lord Cairns thought it unnecessary to bring the case under any of the clauses of sect. 3. The action was not by the mortgagee as such to gain possession under his legal title, but by one who had become absolute owner under a decree of the Court, and his right to bring it accrued, within the meaning of sect. 2 of the Act of 1833, at the date of the decree, sect. 3 not being exhaustive as to all the cases to which sect. 2 was to apply. Thus, before foreclosure, the mortgagee, whether legal or equitable, is merely an incumbrancer. By the order for foreclosure he for the first time gains a title as owner, and against this title the statute CHAP. I.] MORTGAGOR AND MORTGAGEE. 89 only then begins to run : see TJioniton v. France, [1897] 2 Q. B. 143, C. A. If the mortgage is paid off, but no re-conveyance is taken, Where the mortgagee becomes constructively a trustee for the J^*idoftf^ mortgagor: Quarrell v. Bedford (1816), 1 Madd. p. 278. The mortgagor accordingly is tenant at will, and, under sect. 7 of the Pi. P. L. A., 183B, he gains a legal title in thirteen years from the payment. The operation of that section is not excluded by the proviso, "that no mortgagor or cestui que trust shall be deemed to be a tenant at will, within the meaning of this clause, to his mortgagee or trustee " {supra, p. 76), inasmuch as the proper relation of mortgagor and mortgagee is at an end, and the trust which succeeds to it is not express : Sands to Thompson (1883), 22 C. D. 614 {supra, p. 77). (2) In Favour of the Mortgaijec. Under the old law, although the mortgagee was said to be Mortgagee iu for some purposes a trustee for the mortgagor, yet this was P°^^^^^^°"- not so in reference to the statute, and if he went into possession, and held for more than twenty years without acknowledgment and without account, the mortgagor's equity of redemption was barred: Dillon v. Parker (1822), Jac. p. 513. So, under the present law, when a mortgagee has obtained possession of land, the mortgagor can only bring an action to redeem the mortgage within twelve years after the time at which the mort- gagee obtained such possession, unless in the mean time an acknowledgment in writing of the mortgagor's title, signed by the mortgagee, has been given to the mortgagor or his agent : — • " When a mortgagee shall have obtained the possession or 1{. P. L.A.,^ receipt of the profits of any I'and orih^receipt of any rent JJ^^t'o-a^gor '* comprised in his mortgage, the mortgagor, or any person barred in claiming through him, shall not bring any action or suit to twelve years. redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession or receipt [unless in the mean time an aclcnoivledgment in writing of the mortgar/o/s title has been given]." This section replaces sect. 28 of the Act of 1833. As to acknowledgment, see infra, p. 323. The mortgagee's title under the statute, while inchoate, devolves as personalty : lie Loreridge, [1902] 2 Ch. 859. !)0 LAND AND RENT-CHAEGES. [CHAP. I. 3Iortgag-ce must bo in possession as mortgaoree. liar extends to all persons interested in equity of redemption. Mortgagor re- maining in possession of part of property. Welsh mortc-aE To gain the benefit of the section the mortgagee must enter and continue in possession solely as mortgagee. If he enters as purchaser of a life tenancy, or if, after entry, he purchases such tenancy, the statute will not, during the continuance of this interest, run against the remaindermen. This was the rule previous to the E. P. L. A., 1833 : Corhett v. BarJcer (1795), a Anst. p. 759 ; Baffcty v. Kinrj (1836), 1 Keen, GOl ; and is the rule under the E. P. L. Acts ; lliide v. DaUaicaij (1843), 2 Hare, 528: see Booth v. Purser (1838), 1 Ir. Eq. E. 33, 43; nmtra, Browne v. Bishop of Cork (1839), 1 Dr. & Wal. 700, where it was held that the rule was abolished, upon the ground that sect. 28 expressly barred the right of the mortgagor without regard to the nature of the mortgagee's possession. It is^ however, in such a case the duty of the mortgagee, who unites the characters of tenant for life and mortgagee in possession, to keep down the interest of the mortgage for the benefit of the remaindermen : Bajfety v. Kimj, supra ; and, since he is to be deemed to perform this duty, the statute does not run. But when the mortgagee enters solely in that capacity, the statute runs at once in his favour as against all persons interested in the equity of redemption ; and where an estate is limited, subject to a mortgage, to a tenant for life with remainders over, the remaindermen are barred by the lapse of twelve years equally with the tenant for life. This was the rule of the old law : Harrison v. HolUns (1812), 1 Sim. & St. 471 ; and it follows now from the express bar of sect. 7 of the Act of 1874 on " the mortgagor or any person claiming through him." It was formerly the rule that if the mortgagor remained in possession of part of the mortgaged property, time would not run against him as to the other part: Blake y. Foster (1814),. 2 B. & B. 565. But no such distinction is made in the E. P. L. Acts, and the bar of the statute now applies to any land of which the mortgagee has in fact taken possession : Kinsinaii v. Bouse (1881), 17 C. D. 104. Sect. 7 of the E. P. L. A., 1874, does not apply to a Welsh mortgage ; that is, to a mortgage under which the lender goes into possession and receives the rents and profits until he is satisfied or the borrower redeems : see Fisher on Mortgages, 5th ed., pp. 7, 673 ; Coote on Mortgages, 5th ed., p. 538 ; and as to such mortgages, see Longuet v. Sc(twcn (1750), 1 Yes. S. p. 406 ; Balfe v. Lord (1842), 2 Dr. cl- War. p. 487 ; CIIAr. I.] MORTGAGOR AND MORTGAGEE. 91 Teuhm v. Curth (1832), Younge, 610. The mortgagor's right to redeem is not a mere equity, btit springs out of the con- tract, and under the old law time did not run against it so long as anything was due on the mortgage : Ordc v. Heniiwj (1686), 2 Yern. 418, where redemption was allowed after sixty years ; though after the debt had been satisfied, a lapse of twenty years barred the right to a re-conveyance : Fenwick V. Bccd (1816), 1 Mer. p. 125. A Welsh mortgage being thus different from an ordinary mortgage as regards the relative rights of the parties, it is not possible to apply to it the pro- visions of sect. 7 and make time run against the mortgagor from the entry of the mortgagee. The mortgagor can at any time exercise the right of redemption given him by the contract : cf. Aldersoti v. White (1858), 2 De G. & J. p. 109; though the dictum of Lord Cranworth, reported as referring to a contract giving the mortgagor the right to redeem at any time, is in the report in 4 Jur. N. S. 125, referred to a contract for sale and re- purchase. But the statute will run, as under the old law, when the debt is satisfied. The mortgagee is then trustee for the mortgagor, and, since the trust is only constructive, the mort- gagee gains a title free from the mortgagor's right to redeem in twelve years. As to absolute conveyances reall}^ given as security, see Cotterell v. rurchasc (1735), Cas. t. Talb. 61 ; Doi/le v. CuUenvdl (1862), 4 D. F. & J. 20. As to mortgages by way of trust for sale, rid. sup. p. 72. (3) In Favour of a Stranger, A stranger who is in possession of land subject to a mortgage rossession may claim to have gained a title either as against the mortsagor =^*^^'f ^^ *^ only — that is, a title to the equity of redemption — or as against ouiy. both mortgagor and mortgagee. The former case was the subject of the celebrated decision under the old law in CJtolino)idclci/ v. Clinton (1820), 2 Jac. & W. 1, where it was settled tliat a stranger might gain a title to the equity of redemjotion by lapse of time. The same result follows under the present law, since tlie true owner's right in equity to possession of the land is liable to be barred under sect. 24 of the Act of 1833 exactly as though it were a legal right : Flctchrr v. Jiird, Fisher on Mortgages, 5th ed., p. 972. 92 LAND AND EENT-CHARGES. [CHAr. I. Possession adverse to mortgagee also. Persons ".claiminfr under " the, mortc;asre. Where a stranger is in possession without recognition of the mortgage, time runs in his favour as against hoth mortgagor and mortgagee, but as against the latter the operation of the statute may be prevented by payment of principal or interest under the E. P. L. A., 18B7 {supra, p. 85). A payment by the mortgagor is effectual for this purpose, notwithstanding that he is out of possession : Doe v. Eijre (1851), 17 Q. B. 366 ; Ford v. Ager (1863), 2 H. & C. 279 ; and see Ei/rc v. Walsh (1860), 10 Jr. C. L. E. 346 ; provided that the mortgage was created before the statute began to run against the mortgagor. An owner against whom the statute is already running cannot, by creating a mortgage, confer a fresh right on the mortgagee, and then keep such right alive by payment of interest : Thornton v. France, [1897] 2 Q. B. 143, C. A. Doe v. Eyre (siijyra), so far as it decides to the contrary, is overruled, though in that case the possession at the date of the mortgage was not adverse to the mortgagor. But, of course, if the running of the statute as against the mortgagor is stopped, this operates in favour also of the mortgagee. And a payment is only effectual in favour of a "person entitled to or claiming under " the mortgage : E. P. L. A., 1837. Probably the mortgage should be existing when the claim is made ; but whether this is necessary or no, a purchaser of the land, who takes a conveyance in which the mortgagee joins, or who subsequently pays off the mortgage, does not "claim under " the mortgage so as to get the benefit of the statute : Thornton Y.France, [1897] 2 Q. B. 143, C. A., overruling on this point Doe v. Masseij (1851), 17 Q. B. 373. If, however, the mortgage was made before the statute began to run against the mortgagor, and if the mortgage is still subsisting, a pay- ment under the E. P. L. A., 1837, will keep alive the title of the mortgagee, although the mortgagor's title may have been extinguished : Ludhrook v. Ludhrook, [1901] 2 K. B. 96, C. A. CHAr. I.] LORD AXD COPYHOLDER. 93 Section YII, — Lord and Copyholder. In the same manner as under the last head the inquiry divides itself into three parts — the operation of the statute in favour respectively of the lord, the quasi-copyholder, and a stranger. (1) In Favour of the Lord. When a copyholder has died, and his heir, after proclamation Seizure absolute quQUsque. duly made, does not come to be admitted, the lord may, by ^ ^" " ^ -^ ^^ virtue of a special custom, seize the lands absolutely, and the interest of the heir is thereby forfeited ; but in the absence of such custom he can only seize quousque — that is, till the heir comes to be admitted : Doe v. Helier (1789), 3 T. E. 162 ; Doc V. Trueman (1831), 1 B. & Ad. 736. When a seizure quousque has taken place, proceedings on the part of the heir to compel admittance fall within the phrase "action to recover land," and he is barred in twelve years from the seizure : Walters v. Wehh (1870), L. E. 5 Ch. 531 ; see R. v. Afjardslcij (1836), 5 Dowl. 19. (2) In Favour of Copyliolder. By ''copyholder" is here to be understood a person who, Accrual of being entitled to admittance, holds possession without admit- |or*i'?"g^t lO S61Z6 tance. The question then arises whether, by the lord's omission to compel him to procure admittance, the tenure is changed to freehold, and the answer depends upon the date at which the statute begins to run against the lord's right to seize quousque. This is a right of entry within the meaning of sect. 1 of the E. P. L. A., 1874, but it is not possible to assign any certain date for its accrual from which time can be reckoned. If it were a case of forfeiture, time would run from the event giving rise to the right of forfeiture: Doc v. Heller (1789), 3 T. R. 172 ; Whltton v. l>eaeock (1834), 3 My. k K. p. 335. But the mere omission of the heir to come in is no cause of forfeiture. Before the lord has any right at all, express notice 94 LAND AND KENT-CHAEGES. [CHAP. I. must be given to the heir, or the homage must present the death of the ancestor, and there must be three proclamations at three successive courts for the heir to come in ; I)<>e v. Tnionaii (1831), 1 B. & Ad. 736. It is only after this has been done that the lord can issue his precept to seize the land. Upon such notice being given or proclamations made, and the failure of the heir to comply, the lord's right of entry arises. But otherwise the right never comes into existence, and consequently the statute does not begin to run : Ecclesiastical Commissioners V. Parr, [1894] 2 Q. B. 420, C. A. ; Beighton v. Beigliton (1895), 43 W. K. 685 ; cf. Turner \. West Bromicich Union (1860), 9 W. E. 155. The result is that a copyholder cannot claim that the tenure has been changed to freehold by virtue of the statute unless he can show failure to comply with the notice or with the proclamations, and the subsequent lapse of the statutory period without seizure by the lord. Presumi)tion But though it is in general impossible to show that the ofeiifran- statute lias run against the lord, the Court will presume an cflisemeiit. ° ■"■ _ enfranchisement where there has been long possession without recognition of the lord's rights. And such presumption is made also against the Crown. In Boe v. Ireland (1809), 11 East, 280, land had been copyhold of a Crown manor till 1636, and a copy- hold rent of 6s. 6d. had been paid. After tliat date no new tenant appeared upon the rolls, but an annual rent of 6d. was regularly paid. In the Parliamentary Survey of 1649 this was described as a freehold rent, and receipts given by the steward of the manor between 1803 and 1805 described it as a quit rent. The manor was in lease from before 1634 down to 1804. In 1806 and 1807 proclamations were made for tenants to come in and be admitted, and, none appearing, the lands were declared to be forfeited, and ejectment was brought to recover them. At the trial the jury were directed that there was no ground for presuming an enfranchisement, since it would be subversive of the maxim nullum temjms occurrit rcgi; but from this the King's Bench dissented, and a new trial was ordered, Lord Ellen- borough, C.J., saying that he would presume anything capable of being presumed in order to support an enjoyment for so long a period. In Be Lidiard and Jackson's and Broadlcjfs Contract (1889), 42 C. I). 254, copyholds had not been dealt with on the court rolls after 1779, and there was no evidence on the rolls of any proceedings for forfeiture or for recovery of heriots, CHAP. I.] LORD AND COPYHOLDER. 95 fines, or fees after that date. The last copyhold tenant died in 1819, and in all subsequent changes of title, Avhich were numerous, the land was dealt with as freehold, except that in deeds of 1878 and 1883 there were recitals that it was copyhold. Ka}-, J., held that, apart from the recitals, enfranchisement should be presumed, and that the recitals must be taken to be erroneous. On the other hand, in Turner v. West Bromwicli Union (1860), 9 W. E. 155, where from 1717 to 1859 the lord had been negligent in enforcing a payment of 10^-. once in every seven years for which, so long as the land should be used as a workhouse, the fines and heriots had been commuted, but otherwise the j)ossession had not been adverse to his rights, Wood, Y.C., held that no enfranchisement was to be presumed. Of the various incidents of copyhold tenure other than the incidents of lord's right to seize quousque, namely, fines, fealty and suit of tgj^^'g"^'^ court, heriots, reliefs, and rents, it would seem that it is only rents which are liable to be barred : Hoicitt v. Earl erf Harrington, [1893] 2 Ch. 497. There is nothing in the E. P. L. Acts applying to fines, and the remaining incidents, though prinid facie they fall within the definition of "rent " in sect. 1 of the Act of 1833, are excepted on the ground that they fall due only at irregular intervals : siqrra, p. 24, But the right to recover any particular fine is liable to be barred in six years under the Civil Procedure Act, 1833 (3 & 4 Will. 4, c. 42) s. 3, infra, p. 197. (3) In Far our of a Stranger. Where a stranger, whether a disseisor or a tenant at will of Wa.str of the lord, is in possession of part of the waste of the manor, so '"^"^'■• that the statute is running against the lord, the lord's title is extinguished at the end of the statutory period, and the land vests as freehold in the possessor: Att.-Gen. v. Toniline (1880), 15 C. D. 150. By sect. 1 of the E. P. L. A., 1833, "land" is defined to Copybokis. include land of copyhold tenure, and if a stranger enters on the land of a copyholder and holds it for the statutory period, the copyholder's title is extinguished, and the title to the land is vested in the possessor. Thereupon the steward would be bound to admit him. This follows from the clear recognition which lias been accorded by the Courts to possessory titles : (f. Ik Ifa/jdrn, [1904J 1 I. E. 1 {infra, p. 117). 96 LAND AND RENT-CHARGES. [CHAP. I. Section VIII. — Landlord and Tenant. Division of Where land is let to a tenant, the statute may operate in subject. favour of the landlord, of the tenant, or of a stranger. The first case seems to raise no question. If the tenant does not enter under the lease, time will run against him ; and so, too, if the landlord enters wrongfully during the continuance of the lease. The cases to be considered are the second and third. Receipt of rent equival- ent to receipt of profits. R. P. L. A., 1833, s. 35. Previons la-\Y. (1) In Favour of the Tenant. The receipt of rent payable by a tenant is as against him the- receipt of the profits of the land, and consequently such receipt prevents the statute from running against the landlord : " The receipt of the rent payable by any tenant from year to year, or other lessee, shall, as against such lessee or any parson 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."' Under the old law a tenant could not, either during the con- tinuance of the lease, or after its termination, gain a title against his landlord : Saunders v. Annesley (1804), 2 Sch. & Lef. p. 98 ; Cholmondcley v. Clinton (1821), 4 Bl. 96. If he repudiated his landlord's title during the lease, the landlord might, at his option, treat this as a forfeiture, but otherwise the lease was still subsisting ; and if the tenant held over after the lease had' expired, he was still tenant, although only tenant at sufferance, and his possession was not adverse. The above section expressly preserves the title of the land- lord so long as he is in receipt of rent, but it is doubtful whether it is required. The operation of the statute really depends on the consideration that during the continuance of the tenancy the landlord has no present right of entry. His interest, so far as actual occupation of the land is concerned, is future, and his right does not accrue, and the statute does not run, until his interest — that is, his reversion — falls into possession. But while this is the rule applicable to tenancies generally, special provision is made for tenancies at will and yearly tenancies. CHAP. I.] .LA.NDLOKD AND TENANT. 97 (i.) Tenancies at Will. In the case of a tenancy at will the landlord's right of entry accrues at latest at the end of the first year of the tenancy : — " When any person shall be in possession or in receijit of the ij p l a profits of any land, or in receipt of any rent, as tenant at will, 1833, u. 7. the right of the person entitled subject thereto, or of the person , ^^ , ^^^V^!.f through whom he claims, to make an entry or distress or bring year. an action to recover such land or rent, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined " [idtli a proviso excluding mortgagors and cestui que trusts {supra, p. 76)]. This section governs tenancies at will of land, and also, statute runs should such a case occur, of a rent-charge : iJoe v. Angell (184G), irom end of 1) Q. B. p. 356 {supra, p. 23). The effect is that, if the tenancy is ^''^^ y^^i"- determined within a year of its commencement, and the tenant remains in possession without a renewal of the tenancy, time runs from such determination ; if it is not determined within the year, time runs from the end of the year. Thus, if a person enters into possession of land as tenant at will, and nothing further is done, the landlord's title is extinguished in thirteen years : Doe y. Turner (1840), 7 M. & W. 226 ; Doe v. Carter (1847), 9 Q. B. 863. This was doubted in Eamlall v. Stevens (1853), 2 E. & B. 641, by Lord Campbell, C.J., who found it difficult to admit that a tenancy at will w-as to be deemed in all cases to have deter- mined at latest at the end of a year. He would have made that date the starting-point for the statute only when there was no actual determination subsequently within the statutory period. But the rule as above stated was adopted by the Privy Council in Day v. Daij (1871), L. E. 3 P. C. 751. In that case, A., the owner of land in fee, in May, 1842, let ^^"J ^'- ^^"^• B. into possession, and B. remained in possession or in receipt of rent till his death in 1864. At various dates, commencing in or about 1S52, and all within twenty-one years from May, 1842, B. let portions of the land to various persons, on yearly and weekly tenancies, and received rent from these under-tenants, lie also transferred, or purported to transfer, his interest in part o{ the land to C. who likewise let it and received rent. A. had T.L.A. H 98 LAND AND RENT-CHARGES. [CHAP. I. notice of such lettings and transfer at the times at which they took place respectively. On B.'s death, the devisee for life under his will entered into receipt of the rents of the part of the land he had retained, until, in 1867, A. took possession and procured the tenants to attorn to him. The devisee hronght ejectment. It was argued for A. that the letting of the land operated as a determination of the tenancy and fixed the time for the running of the statute, but it was held that such determination was only material if followed by resumption of possession or the creation of a fresh tenancy. "The reasonable construction of this provision," it was said in the Privy Council, "is (according to Lord St. Leonards) that the right shall accrue ultimately at the end of a year from the commencement of the tenancy at will, though it may accrue sooner by the actual determination of the tenancy. In the present case the right under the statute must be deemed to have first accrued to [A.] in May, 1843, at which time the tenancy at will under which the occupation began, must for the purposes of the bar of the statute, be deemed to have determined. The condition of [B.] was, for these purposes, but that of a tenant at sufferance from and after May, 1843, unless and until a subse- quent tenancy at will was created by a fresh agreement of the parties." And subsequently : " It seems to their Lordships that, as in this case the statute began to run from May, 1843, the question of a subsequent determination of the original tenancy is only relevant so far as it may have been preliminary to the creation of a fresh tenancy at will after the determination of the first and within the period of limitation. . . . When the statute has once begun to run it would seem on principle that it could not cease to run unless the real owner, whom the statute assumes to be dispossessed of the property, shall have been restored to the possession. He may be so restored either by entering on the actual possession of the projDerty, or by receiving rent from the person in occupation, or by making a new lease to such person which is accepted by him ; and it is not material whether it is a lease for a term of years, from year to year, or at will." The jury had found, however, that no new tenancy had been created. Consequently A. was barred and his title extinguished. The fee had become vested in B. and his devisee recovered. CHAP. I.] LANDLORD AND TENANT. 99 Creation and Determination of Tenanci/ at Will. A tenancy at will is created when lands or tenements are let Creation of by one man to another to be held at the will of the lessor : Litt. *^^°f ^^^y ** •^ ■will. s. 68 ; and such a tenancy is usually implied from a simple permission to occupy : Doe v. Wood (1845), 14 M. & W. p. G87; or from an entry under a void lease: Braythwayte v. Hitchcock (1842), 10 M. & W. 494. The Courts lean, however, to 3'early tenancies as giving more security to the tenant, and where there is a payment of rent referable to a year, or to the aliquot part of a year, the tenancy at will is converted into a yearly tenancy : Richardson v. Langridge (1811), 4 Taunt. 128; Tudor's L. C. in Real Prop. 4th ed. p. 4 ; 2 Sm. L. C. 11th ed. p. 134. The existence of a tenancy at will may be negatived by showing that the occupier has no exclusive possession on his own account. He may be servant or bailiff, or may be merely allowed on the premises as licensee, and in such characters he cannot gain a title under the statute : supra, p. 30. But a servant may be put in possession as tenant at will : Hogan v. Hand (1861), 14 Moo. P. C. 310. In Mayor of Brighton v. Guardians of Brighton (1880), 5 C. P. D. 368, the defendants, who had been allowed the use of certain buildings as offices by the predecessors in title of the plaintiffs, and who had had exclusive occupation, without payment of rent or acknowledg- ment of title, for above thirteen years, were held to be not mere licensees and to have gained a title under the statute. The determination of the tenancy at will may be express, as Dctermina- where there is an actual demand of possession or other intima- i^°" "^ . . . tenancy at tion that the tenant s occupation is to cease : Co. Litt. 55 b ; will. Doe V. Jones (1830), 10 B. & C. 718 ; Pollen v. Brewer (1859), 7 C. B. N. S. 371 ; or implied, as where the lessor does any open act of ownership on the land which would not be lawful during a tenancy, and which would, therefore, on the assumption of the continuance of the tenancy, render the lessor liable to the lessee in trespass : Turner v. Bennett (1842), 9 M. & W. p. 646. It is determined also by the death of either party ; by a conveyance of the reversion by the lessor, so soon as the tenant has notice (Due V. Tlumas (1851), 6 Ex. p. 857), although only by way of mortgage : Jarnian v. Jfale, [1899] 1 Q. B. 994 ; by an assignment of the premises by the lessee, so soon as the lessor has notice : Pinhorn v. Souster, 1853, 8 Ex. p. 772 ; Melling v. Leak (1855), 100 LAND AND KENT-CHAEGES. [CHAP. I. 16 C. B. p. GG9 ; and by any dealing with the land hy the tenant inconsistent vrith his interest as tenant at will : Co. Litt. 57 a. Lessor's right But though the lessor has the right at any time to determine o en ry. ^^^ tenancy at will and enter, he has not, until actual determina- tion, such an immediate right of entry as will make the statute run against him during the first year : Garrard v. TncJc (1819), 8 C. B. 231. Nor does the grant of a lease by the lessor to a third person, though technically a determination of the tenancy at w^ill, give the lessor such a right of entry as is contemplated by the statute: Hogan v. Hand (1861), 14 Moo. P. C. 310. During the first year of the tenancy, the possession of the tenant at will is not adverse to the lessor, and, if the latter grants a lease, the effect is to postj)one his right of entry until the determination of the lease. His interest is turned into a future estate, and the statute does not run against him until it falls into possession. In Jlogan v. Hand the lease was granted in 1832, and the possession of the tenant at will was then non-adverse under the old law. But if the lease is granted after the year, the statute is already running, and it cannot be IDOstponed by the paper creation of a future estate. To avoid the statute the lessee must enter on the land. l^e-entry. statute ^^^ running of the statute may be checked by an effective stopped by entry ; that is, by an entry which amounts to a resumj^tion of possession by the landlord. In lUmdall v. Stevens (1853), 2 E. & B. 611, the plaintiff, who had been put into possession of a cottage by the overseers of a parish, occupied it without payment of rent from 1818 to 1839. In the latter year, just before the twentj'-one years had elapsed, the overseers entered, turned out the plaintiff and his family, and removed nearly the whole of his furniture and goods. Shortly after, on the same day, he returned and held possession till 1852, when the overseers again entered, and, since he refused to give up possession, destroyed the cottage. It was held that in 1839 the overseers had resumed possession so that the statute ran afresh from the subsequent entry of the plaintiff, and they were not barred, therefore, in 1852. But where the owner of several adjacent houses allowed one to be occupied by a tenant at will for thirteen years, and, with the tenant's assent, entered from time to time re-entrv. CHAP. I.] LANDLORD AND TENANT. 101 to do external repairs, similar to those he did to the other houses, it was held that he had not taken possession so as to stop the running of the statute : Lijncs v. Snaith, [1899] 1 Q. B. 486. The occasional residence, however, of the owner with the tenant at will may save the statute : Doe v. Groves (1847), 10 Q. B. 486. Creation of Xew Tenancy. The creation of a new tenancy at will also gives a fresh Statute starting-point for the running of the statute. In Turner v. creation of Bennett (1842), 9 M. & W. 643, Bennett had in 1817 let Turner new tenancy. into possession of land as tenant at will. In 1827 Bennett entered and quarried for stone, and thereby determined the tenancy, hut did not retake possession. In 1829 Turner, as one of the assessors for land tax, signed an assessment in which he was named as the occupier of the land, and Bennett was named as the proprietor. It was held that this was evidence from which the jury might properly infer the creation of a new tenancy : see Doc v. Turner (1840), 7 M. & W. 226. In Locke v. Matthews (1863), 13 C. B. N. S. 753, A. in 1830 enclosed some six acres of waste land of a manor, and built a cottage thereon. He was allowed to remain in possession, without acknowledgment or payment of rent, till 1845, when the steward of the manor served him with a declaration and notice in ejectment. There- upon he consented to give up four acres of the land on being allowed to continue for his life in possession of the other two acres and of the cottage. He died in 1861. Here again a fresh tenancy had been created, and the statute ran anew from 1845. In Hodgson v. Hooper (1860), 3 E. & E. 149, land, which was waste of a manor, had been held by workhouse trustees since 1781 under such circumstances that their i30ssession, whether under a tenancy at will or not, was not adverse to the lord before 1833. In 1835 new trustees were admitted. This created a new tenancy at will and the lord's title, therefore, was existing in 1840, " We are clearly of opinion," said Cockburn, C.J., in delivering the judgment of the Court, " that if the first tenancy was a tenancy at will, the admission in 1835 operated to create a fresh tenancy of the same kind. If before the right of entry upon a tenant at w'ill is gone, the tenancy is put an end to, and a new tenancy at will created by fresh agreement, express or implied, between the parties, then, according to the decision in />'.<■ v. 'I'urnrr (1840), 7 M. & W. 226, with which wo concur, a 102' LAND AND EENT-CHAKGES. [CHAP. I. Intention to create new tenancy. K. P. L. A., 1833, s. 8. Right accrues at end of first fresh right of entry accrues, and an additional period of [thirteen] years must run before that entry would be barred." In Day v. Day (supra) it was said that, in order to constitute a new starting-point for the statute, " the agreement for a new tenancy should be made by the parties with a knowledge of the determination of the former tenancy, and with an intention to create a fresh tenancy at will." But where the former tenancy is determined in accordance with a technical rule, as by a mortgage of the reversion, the parties have no actual knowledge of it, nor do they really intend to create a new tenanc}'. In Jarman v. Hale, [1899] 1 Q. B. 994, the above passage was treated as ohiter dictum, and Channell, J., said, "It seems to me that if you find a definite acknowledgment from the tenant that he is holding by permission of the other, that is all you want." In that case the defendants had occupied a house by permission of the plaintiff without payment of rent, from 1883. In 1893 the plaintiff executed a legal mortgage of the house -which came to the knowledge of the defendants in 1894, when, therefore, the tenancy at will was determined. Subsequently the defendants filled up an income tax paper in which they -described the plaintiff as being the owner of the house, and themselves the occupiers, and in conversation with other persons they admitted that they were then tenants at will. These admissions were held to be sufficient to show that, after the determination of the first tenancy at will, a new tenancy was created, and the statute, therefore, ran only from 1894. "When a tenancy at will has been determined by notice to quit, the continuance of the tenant in possession cannot be construed as the creation of a new tenancy, if the landlord declines to receive rent and tells the tenant that he is a trespasser. There must be consent, express or implied, on the part of the lessor : Cusack v. Fan-ell (1886), 18 L. E. Ir. 494. (ii.) Yearly Tenancies. In the case of a teuancy from year to year without any lease in writing, the landlord's right of entry is deemed to have accrued at the end of the first year, or at the last receipt of rent, whichever date is the later : — " When, any pei'son 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 CHAr. I.] LAXDLOED AND TENANT. 103 right of the person entitled subject thereto, or of the person year or last through whom he claims, to make an entry or distress or to l^^^J^^ ^ 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). The word " rent" is used in this section three times : on the "Rent." first two occasions it means rent-charge ; on the last, rent reserved on a lease : Doe v. Anr/eU (1846), 9 Q. B. p. 35G (supra, p. 23) ; see Babies v. Lumh'i/ (1868), 16 W. E. 674. To constitute a lease in writing, which will take the case out Lease iu of sect. 8, there must be an instrument passing an interest in the ^'^'I'li^s- land, and not merely showing the conditions of the holding : Doe V. Goiccr (1851), ^7 Q. B. 589. A tenancy from year to year may be created expressly, either ciieation of by parol or in writing, or it may be implied from payment of yearly rent upon entry without a valid lease : Doe v. Bell (1793), 5 T. E. 471 ; Clmjton v. Blahn/ (1798), 8 T. E. 3 ; 2 Sm. L. C. mh ed., 110, 118; Crawley v. Priee (1875), L. E. 10 Q. B. 302; or from payment of rent by a tenant who holds over after the expiration of his lease : Archhold v. Scully (1861), 9 H. L. C. 1). 387. Payment of rent, however, does not of itself create a tenancy from year to year. It is only evidence of a tenancy (Finlay v. Bristol and Exeter By. Co. (1852), 7 Ex. 409), and though, in general, it is conclusive evidence (Doe v. ir'«/^s (1797), 7 T. E. 83 ; Bishop v. Howard (1823), 2 B. & C. 100), this is not necessarily the case ; and it is open to the party to show the circumstances under which the rent was received, as that he was ignorant of the death of a person for whose life the premises were held (l)oe v. Crago (1848), 6 C. B. 90), or that a tenancy at will had been expressly created : Doe v. Cox (1847), 11 Q. B. 122. The rent need not be reserved in money: Doe v. Jknham (1845), 7 Q. B. 976 ; Doe v. Billett(ihid., 983). The payment of rent does not support the tenancy and I'^^yment of prevent the possession from being adverse. It simply gives a starting-point for the statute : Baines v. Lumlcy (1868), 16 W. E. 674. And for this purpose the payment must be made strictly in respect of rent. " Where," said Lord Cranworth, C, in Att.-Gen. v. Stephens (1855), 6 D. M. & G. Ill, at p. 146, " the tenancy is, as in this case, disputed, the circumstances 104 LAND AND EENT-CHARGES. [CHAr. L Eeceipt of rent after lapse of 12 years. Arrears of rent. Payment of head-rent by yearly under-tenant. connected with the annual payments are evidently most impor- tant ; for if the person paying made the payment expressly or impliedly on account of something else than rent of land of which he was the tenant, this would not he a payment of rent within the meaning of the clause." The payment of rent^ though it is similar in its effect to an acknowledgment of title which must be in writing {infra, p. 322), may be proved by the parol admission of the tenant : Doe v. BccJcett (1843), 4 Q. B. 601. The section gives two alternative points for the commence- ment of the statute — the end of the first year of the tenancy, or the last receipt of rent ; and hence, although such last receipt may be more than twelve years after the end of the first year, the lessor is entitled to rely upon it as giving the date from which the statute is to run : Bunting v. Sargent (1879), 13 C. D. 330. Prima facie, it might be supposed that the title is extinguished at the end of the twelve years, and that a subse- quent payment of rent would be as ineffectual to revive it as an acknowledgment : cf. Sanders v. Sanders (1881), 19 C. D. 373, C. A. But in Bunting v. Sargent, Jessel, M.R., observed that sect. 34 only extinguishes the title " at the determination of the period limited by this Act," and that under sect. 8 the statutory period was to be reckoned from the last receipt of rent, whenever this took place, provided only it was subsequent to the end of the first year of the tenancy. When the title of the landlord is extinguished by the lapse of the statutory period, his right to arrears of rent is also extinguished, and he cannot recover them, either directly or indirectly : Be JoIIg, [1900] 2 Ch. 61G, C. A. Where land held on lease for a term of years is sublet to a yearly tenant, and the latter voluntarily pays the head-rent direct to the superior landlord, it has been said that this payment must be deemed to be made on behalf of his immediate landlord ; it would operate, on this view, as a payment to him, and the under- tenant could not set up the statute against his landlord : Hai/es v. Woodleij (1852), 3 Jr. Ch. E. 142 ; ef Tiriss v. Kohlct (1869), Ir. E. 4 Eq. p. 80. But this is not so. It is a question of fact, to be decided on all the circumstances of the case, whether the I3ay- ment is made by arrangement with and on behalf of the inter- mediate lessee, so that his title is saved: see Drew v. Karl of Xortmrg (1846), 3 Jo. & Lat. 267. And in the absence of evidence of such an arrangement, the payment of the head-rent does not CHAr. I.] LANDLORD AXD TENANT, 105 operate as a payment on account of the sub-rent. Consequently, the right of the intermediate lessee to recover the land is barred and his title extinguished at the end of twelve years from the last receipt of the sub-rent ; he cannot recover arrears of the rent : Gror/cm v. Began, [1902] 2 I. E. 196, 201, C. A. ; and the term belongs thenceforth to the under-tenant, who is entitled to be registered as owner of it : lie Haydcn, [1904] I. R. 1. (iii.) Terms of Years. In the case of tenancies for a term of years, and of yearly '"Statute does •L ^' . -^ , -^ not run till tenancies under a lease in writing, the 11. P. L. Acts have end of term. no provision interfering with the general rule that, since the lessor has no present right to possession of the land, time does not run against him until, by the determination of the term, his reversion falls into possession. It makes no difference that rent has not been paid for more than twelve years : Doe v. Oxcnham (1840), 7 M. & W. 131 ; and since the statute only bars rent of the nature of rent-charge (Grant v. Ellis (1841), 9 M. & W. 113, supra, p. 22), six years' arrears of rent may be recovered at any time during the currency of the term: Arclihold v. Scullij (1861), 9 H. L. C. 360. And provided the rent is a conventional rent reserved upon a lease, it is not an objection that no reversion remains in the lessor, as where an underlease is created for the whole of the residue of the term : Re Turner's Estate (1861), 11 Ir. Ch. Rep. 304. If the lease is void, time runs against the lessor from the yq{^ lease, date when possession is taken, unless a 3'early tenancy is inferred from payment of rent. In Magdalen Hospital v. Knotts (1879), 4 App. Cas. 324, a lease was granted in 1783 by the Governors of the hospital for 99 years at a peppercorn rent "if lawfully demanded." The rent was never demanded or paid. In 1876 the Governors brought an action claiming to have the lease declared void under 13 Eliz. c. 10, as an improvident alienation of the lands of the hospital. It was held, however, by the House of Lords, that the lease was not voidable, but void ah initio, and that time had been running since 1783. "Holding, as I do," said Lord Cairns, C, "that the lease of 1783 was absolutely void, the respondents, or those whom they represent, must be taken to have been in possession of the property from 1783 without any title whatever ; and not having paid rent to 106 LAND AND RENT-CHAKGES. [CHAP. I. Existence of term in equity. Archbold v. Scully. the appellants, or in any other way entered into the relation of tenants, there is nothing to prevent the full operation of the 2nd section of the Statute of Limitations, and the right of the appellants to recover the land is in my opinion effectually barred." "If any rent," added Lord Selborne, "had been reserved and received, however small, the legal relation of a tenancy from year to year would have been created, and the Statute of Limitations could not have run," A decision upon the same principles was given by Kay, J., in Wchstcr v. Southei/ (1887), 3G C. D. 9, where a lease, granted in 1747 for the building of a workhouse, was held to be void for non-compliance with the requirements of the Mortmain Act. But the mere non-existence of a lease does not make the statute run, if the circumstances are such that in equity the lease must be assumed to exist. In Archhold v. Sculli/ (1861), 9 H. L. C. 360, a lease granted in 1699 for lives renewable for ever came to an end by the dropping of the last life — that of A. — in 1784. In 1779 A. was claiming a fourth share under the lease, but L., who was entitled to the remaining three-fourths, had obtained possession of the whole, and in that year A. granted to L. an underlease of an undivided fourth part for 999 3'ears at £40 a year byway of compromise. A. received the rent of £40 till her death in 1784, and afterwards it was received by A.'s successors in title till 1828, when its payment was dis- continued. The original lease was not renewed till 1835. It was contended that the right to the rent was barred by the lapse of more than twenty years from 1828. At law the underlease came to an end with the head lease in 1784, and after that date the legal relation of landlord and tenant between the successors of A. and L. only existed so far as it was preserved by the annual payments of rent. Hence the statute would run from the last payment in 1828. But although the legal interest under the lease of 1699 was gone, there remained the right to have it renewed, and the lease of 1779 created a good equitable charge upon this right. Moreover, when in 1835 the original lease was actually renewed, the lease of 1779 revived in equity, and took effect out of the new lease. Hence, both from 1828 to 1835, and subsequently, there existed between the successors in title of A. and of L. the equitable relation of landlord and tenant. Under these circumstances it was held that the rights of the parties were to be treated as though the head lease and the CHAP. I.] LANDLORD AND TENANT. 107 underlease had been in existence throughout as legal leases, and consequently the claim of A.'s successor to the one-fourth share and to the rent of £40 was not barred. This was put upon the ground that, by virtue of sect. 24 of the Act of 1833, equitable rights are placed, for the purpose of the statute, on the same footing as legal rights. Or the case may be brought into line with the subsequent cases of Drummond v. Sant (1871), L. R. 6 Q. B. 763, and JVanrn v. Murrci/, [1894] 2 Q. B. 648, C. A. (supra, p. 78), upon the principle that, had A. and her successors in title sought to disregard the lease and recover the one-fourth share, they would have been restrained in equity, and hence the statute did not run against them: see Beighton v. Beighton (1895), 43 W. E. 685. During the continuance of the lease the lessee may disclaim Disclaimer of the lessor's title, either by direct repudiation of the relation of Y'^^^^'^ *^^*^^ Oy 1CS8GG. landlord and tenant, or by a claim to hold possession on a ground inconsistent with the existence of that relation : Doe v. Stanion (1836), 1 M. & W. p. 703 ; l>ne v. Coojjer (1840), 1 M. & Gr. p. 139 ; Vivian v. Moat (1881), 16 C. D. 730. Or, in fraud of his landlord, he may give up possession to a third party with the intention of enabling such third party to set up a hostile title : Doe v. I^hjnn (1834), 1 C. M. & E. 137. But though such disclaimer — provided, in the case of a term, though not, perhaps, in the case of a tenancy from year to year, it does not rest upon mere words : Doe v. Wells (1839), 10 A. & E. 427— may be a ground of forfeiture, it does not in itself make the statute run oe v. a tenant at will from 1815 to 1834, then a possession by his widow, but not under him, till 1847. In 1845 a mortgagee from the owner, under a mortgage dated in 1829, attempted to recover possession from the widow in the earlier action of Doe v. Carter (1847), 9 Q. B. 863, but his right was held to be barred. Subsequently Barnard, who claimed under the mortgagee, managed to get into possession, and Doe v. Barnard {supra), was an action of ejectment brought by the widow to recover possession from him. It was held that the widow would have succeeded had she shown only her own possession for thirteen years, since this would have been, as just stated, prima facie evidence of seisin in fee. However, she did more, " for she proved the possession of her husband before her for eighteen years, which was prima facie evidence of his seisin in fee; and, as he died in possession and left children, it was prima facie evidence of the title of his heir, against which the lessor of the plaintiff's possession for thirteen years could not prevail ; and, therefore, she has by her own showing proved the title to be in another, of which the defendant is entitled to take advantage." During the husband's life his actual interest was, as already stated, a tenancy at will, and the true owner remained seised, although the statute was running against him. Hence it has been questioned whether the heir of the husband could, in fact, have recovered : Groom v. Blake (1857), G Ir, C. L. Pi. 400. In Doe V. Barnard, it appears to have been assumed, however, that, upon the extinction of the true owner's title, the presumption of seisin in fee arising from the first possession, in favour of which the statute ran, became irrebuttable ; in other words, upon the statutory period being complete, the fee is to be deemed to have vested in the first adverse possessor, using the term "adverse possession" in its modern sense: aupra, p. 7. And the case aflirnied tho rule, referred to above, that the plaintiff in ejectment must fail if the title appears to be in another. The rule, however, was shaken l)y J >arison v. (lent (1S57), 1 II. & N. 122 LAND AND KENT-CHARGES. [CHAP. I, 744, and was abolished by Asher v, Whitlock (1865), L. E. 1 Q. B. 1 ; and this abolition was recognized in Pernj v. CllHsohh [1907] A. C. 73, P. C. Davmni In Bavhoii V. Gant, premises had in 1842 been demised by V. Gent. ^|jg freeholders to Sherwood for twenty-one years. In 1849 they leased the same premises to Wood for a like term. No sm-render of the former term, either express or by operation of law, was- proved. Wood entered and died in possession, and his executor sub-let to Davison, who was forcibly ejected by the defendant, a mere wrongdoer. The outstanding lease to Sherwood constituted a defect in Davison's title, but the Court held that this did not prevent him from recovering in ejectment. " A plaintiff in ejectment," said Pollock, C.B., " is not deprived of his right t» rely on his prior possession as against a mere wrongdoer, because he has brought forward documents which, if complete, might make out a perfect title, but w4iich, on account of some defect in proof, do not establish his title to the property in question." And Bramwell, B., recognized the plaintiffs' "right to rely on their prior possession as against the defendant, who was a mere intruder." Davison v. Gent did not go further than to establish that a possession which is substantially lawful shall not lose protection because of a technical defect in the possessor's title. It did not expressly recognize that a possession wrongfully taken may give a good title as against a subsequent wrongdoer ; yet this, Ashtr V. as pointed out in Asher v. Whitlock (1865), L. E. 1 Q. B. 1, i& the real doctrine of English law, at any rate where the first wrongful possessor has disseised the true owner. " All the old law on the doctrine of disseisin," said Cockburn, C.J., " was founded on the principle that the disseisor's title was good against all but the disseisee." In that case Williamson had, in 1842, enclosed a piece of land, part of the waste of a manor, and had built a cottage. He died in 1860, having devised the premises to his wife during widowhood, remainder to his daughter in fee. The widow married the defendant in 1861, and these two, and the daughter, resided on the premises till the daughter's death in 1863. Later in that year the widow died, and in 1865 the heir-at-law of the daughter sued in ejectment ta recover possession. Cockburn, C.J., treated the doctrine of disseisin as applicable, and held that Williamson had a right of possession upon which he could have brought ejectment, and Whitloch. CHAF. I.] POSSESSORY TITLES. 123 that this passed by his will to the daughter and so to her heir. In other words the rule that a plaintiff in ejectment must recover on the strength of his own title does not mean that he must show a title good against the world. It must be a better title than the defendant's, and if founded on disseisin it satisfies the test, since it is then good against all except the disseisee. This view was affirmed by the Privy Council in Pcvrii v. rerry v. CUssold, [1907] A. C. 73. Land in New South Wales was in 1891 "resumed " by the Government for a public purpose, and compensation thereupon became payable to the owner. At that date the rightful owner was unknown and out of possession, but one Clissold had in 1881 entered into possession of the land, which was then open and vacant, and had enclosed it, and had, until the time of resumption, held exclusive possession without any notice of an adverse claim. He had let it to different tenants and had received the rents for his own use, and had been rated, and had duly paid all rates and taxes in respect of the land. Clissold died in 1891, and in 1902 the executors and trustees of his will served notice of a claim to compensation, alleging that their testator "at the date of resumption was in possession of such land as the owner thereof, and in receipt of the rents of such land, and had a title thereto by possession." The Government refused to entertain the claim and the Supreme Court of New South Wales decided in their favour. But the decision was reversed by the High Court of Australia, who were upheld by the Privy Council. "It cannot be disputed," said Lord Macnaghten, in delivering the judgment of the Court, " that a person in possession of land in the assumed character of owner, and exercising peaceably the ordinary rights of owner- ship, has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessor}^ owner acquires an absolute title." And, referring to ]><>(' v. JianianI (1849), 13 Q. B. 945, and the proposition there laid down that a possessory owner who, after dispossession by one with no better title, would fail in his action to recover the land if he showed in the course of the proceedings that the title on which he sought to recover was merely possessory, Lord Macnaghten continued : " It is, however, difficult, if not 124 LAND AND KENT-CHAEGES. [CHAr. I. Present rule that posses- sion is a title in ejectment. Dixon V. Gay/ere. impossible, to reconcile this case with the later case of A. site r v. WJiiflocJc (18G5), L. R. 1 Q. B. 1, in which Doe v. Barnard was cited. The judgment of Cockhurn, C.J., is clear on the point." Probably the principle of A^hcr v. Wlutlock goes beyond the case of a disseisin, and applies whenever there is a possession in favour of which the statute is running. This is now known as an adverse possession {>iupra, p. 7), and it corresponds to the possession of a disseisor under the old law. In Asher v. Whitlock the Court (Cockburn, C.J. and Mellor, J.) do not seem to have concerned themselves with technical disseisin, and it is not clear that A.'s inclosure from the waste was a disseisin of the lord of the manor. The judgment of Cockburn, C.J., was apparently an extension of the doctrine of disseisin to dis- possession, and the principle of the judgment was that mere possession gives a good title against subsequent wrongdoers. "On the simple ground," said Cockburn, C.J., "that possession is good title against all but the true owner, I think the plaintiff entitled to succeed," and weeper Monahan, C.J., in Nafjlc v. (yShea (1874), Ir. R. 8 C. L. 224. In Dixon v. Gai/fere (1853), 17 Beav. 421, it was thought that, as between successive trespassers, each holding for less than twenty years, but the aggregate period exceeding twenty years, the law could not ascribe a title to any of them, neither to the first, nor to the last, nor to the one who had held the land for the longest period. " At law, no doubt," saidRomilly, M.ll, " the person possessed of the legal estate would obtain possession, or, if the legal estate could not be shown to be in any one, the last possessor, that is, the person actually in possession, would hold the propert}^ ; hut not by reason of the validity of his own title, but by reason of the infirmity of the title of the claimants." In the circumstances of the case, however, the Master of the Rolls held that the Court must ascertain the rights of the parties exactly as if the statute did not exist. The facts in Dixon v. Gayferc were as follows : — The legal estate was during the whole period, outstanding in trustees. A stranger was in possession of a share of the property from 1818 to 1837 ; then his widow, without title under him, till 1838 ; then for four years the tenants withheld their rents ; and finally the Court, at the instance of the then trustee, took possession by a receiver. Inasmuch as neither the stranger, nor his widow, had been in possession for twent}' years, Romilly, M.R., CHAP. I.] . rOSSESSORY TITLES. 125 considered that neither of them had gained a title, and that, the possession being in the Court, the declaration of title must be in favour of the original equitable owner. The decision has been questioned (Asher v. Whitloch (1865), L. E. 1 Q. B. 1 ; Dart's Vendors and Purchasers, 7th ed., 475 ; Pollock & "Wright on Possession, 99), and so far as it deals with the general doctrine of possession is probably incorrect. It follows from Doe v. Barnard {supra), that, at any rate when the statute has run against the true owner, the legal title is in the first of the adverse possessors and those claiming through him ; and Aalwr V. WJtitlocl- and Pcrrii v. CUssold (suj^ra) recognize that, even while the statute is running, the first possessor has a title upon which he can recover against a subsequent disseisor or trespasser. Each possessor, whether under the old law he would have been a disseisor or not, gains at once a possessory title which is good against a subsequent possessor. The nature of an inchoate possessory title may be stated as inclioate follows : — If a stranger upon entering claims an existing par- fftle!^^^^'^ ticular estate in the land, as a life estate, he is seised of that estate (Prest. Abstr. IT. 293). If he only claims an existing term, he is possessed of that term {rf. ihUL, 295), and his pos- sessory title will devolve as personalty ; and it is the same if, without expressly claiming the term, he enters wrongfully during its subsistence, so that the statute runs in his favour against the lessee, but not against the lessor: sujira, p. 119. But otherwise, since he cannot qualify his own wrong (Co. Litt. 271 a), he gains an estate in fee, and he has an interest which he can alienate or devise, and which, if not devised, will descend to his heir-at-law: Asher y. Whitlock (1865), L. E. 1 Q. B. 1; Clarke v. Clarke (1868), Ir. E. 2 C. L. 395 ; Doe v. Jauncey (1837), 8 C. & P. 99. This will be so whether he is strictly a dis- seisor or not, inasmuch as a possession in favour of which the statute is running is now equivalent, for the purpose of founding a possessory title, to adverse possession or tortious seisin under the law prior to the E. P. L. A., 1833. And the possessory title thus gained is good against all subsequent possessors without title. Thus, suppose A. to be the true owner, and B., C, D., and E. to be successive possessors in whose favour the statute runs — either as disseisors, or trespassers, or tenants at will or on sufferance. If E. is in possession at the time when A.'s title is extinguished by the statute, he does not gain thereby a right 126 LAND AND EENT-CHAEGES. [CHAP. I, to retain the land against the preceding possessors. The title vests first in B., and, when he is barred, it vests successively in C. and D. Only when the statute has barred all these, does E. gain an indefeasible title to the land : Dalton v. Fitzgerald, 1 1897] 2 Ch. pp. 1)0, J)l, C. A. Estoppel l>y payment of rent. When paj-- ment is no fstojipel. Carlton V. Boiccocl:. (3) Title hij llcccipt of llcnt. When a stranger, B., has been in receipt of the rents of land so that the statute is running, or has run, against the true owner, A. {siqrra, p. Ill), the question arises whether B. is entitled, as against the tenant, to continue to receive the rents. "Where B. has himself let the tenant into possession, the defect in his title is immaterial, since the tenant is then absolutely estopped from disputing it : Doc v. Sun/the (1815), 4 M, & S. 347; Bclancy v. Fox (1857), 2 C. B. N. S. p. 774; Cook v. Whel- loch (1890), 24 Q. B. D. 658, C. A. ; notes to Vcalc v. Warner, 1 Wms. Saund. 580, and to Walter v. Waterhouse, 2 ihid., 826. But if the tenancy was created by A. or his jDredecessor in title, then the receipt of rent by B. in the course of the tenancy does not raise an absolute estoppel against the tenant. He may dispute B.'s title if he can show that he was induced to pay rent to him by fraud or misrepresentation : Doe v. Wifigins (1843), 4 Q. B. 367 ; Carlton v. Boiveoch (1884), 51 L. T. 659 ; Williams V. Bartholomew (1798), 1 B. & P. 327 ; Doe v. Broirn (1837), 7 A. & E. 447. And he may show that he has paid rent to B. under a mistake, and that B. is not, in fact, entitled to receive it : Bogers v. Biteher (1815), 6 Taunt. 202 ; Fcnuer v. Duplock (1824), 2 Bing. 10; Gregory v. Doidge (1826), 3 Bing. 474; Cornish v. Searell (1828), 8 B. & C. 471 ; Jeir v. Wood (1841), Cr. & Ph. 185; Claridge v. Maehenzie (1842), 4 Man. & Gr. 143 ; provided he can prove that the true title is in another : Cooper V. Blandy (1834), 1 Bing. N, C. 45. But in the absence of such proof B.'s primd facie title, evidenced by receipt of rent, will prevail. "No case," said Cave, J., in Carlton \. Bowcoch (1884), 51 L. T. 659, "is to be found in which the tenant has been allowed to pick holes in the title of the person to whom he had paid rent." In Carlton v. Boiucoch Watson, who was seised in fee of a house and shop, let them, in 1869, to the defendants for a term of five years at £15 a year. In 1872 Watson died, having by CHAP. I.] POSSESSORY TITLES. 127 his will devised the property to the plaintiff, whom he also appointed his executor. During Watson's life certain agents had been employed by him to collect the rents of this and other jDroperty. They continued to do so after his death, and from 1872 to 1874 they accounted for the rents to the plaintiff". In 1874 the plaintiff endeavoured to sell some freehold i)roperty devised to him by Watson, and upon the investigation of the title the objection was taken that the will had not been properly executed. Thereupon the agents ceased to account any longer to the plaintiff". Certain rents already received they retained, and they made no further demand on the tenants. No other person claimed the rent from the tenants, and in fact they did not pay any at all. Ultimately the action was brought to recover from the tenants six years' arrears, and Cave, J., held that the plaintiff" was entitled to succeed. " Where," he said, *' rent is paid by the tenant under such circumstances as to amount to pi'imd facie evidence of title, the person receiving the rent is in as good a position as if he were actually in possession ; and, although it is open to the tenant to prove, if he can, that he paid the rent in ignorance of the true state of the title, and that some third person is the real assignee of the reversion, yet he must show such a title in that third person as would entitle him to a verdict in ejectment, and it is not enough to show that the person to whom the rent was paid has no title, his receipt of the rent being sufficient until a better title is shown." (4) Limited Estate under Possessorii Title The rule that a person in possession in whose favour the Limited statute is running acquires an estate in fee is sometimes egtormei*^' qualified by an application of the doctrine of estoppel. Thus, where a testator, who is in possession of land, but who has no devisal)le interest, or has merely an inchoate possessory title under the statute, devises it to one for life, with remainders over, and the tenant for life enters, his possession will be referred to his title imder the will; and, having entered by virtue of the will, he and persons claiming under him will not be allowed to dispute the right of the remaindermen under the will. In other words, the will takes effect upon the possessory interest, and til is interest is carved out into estates corresponding to the limitations of the will. The title of the true owner, of course. 128 LAND AND EENT-CHARGES. [CHAP. I. Board v. Board, Entry under settlement. Dalton V. Fitzgerald. remains until extinguished by the statute. But the rights of the devisees inter sc are regulated by the will. This doctrine was established by Board v. Board (1873);, L. E. 9 Q. B. 48. Eobert Amesbury, being tenant by the curtesy of premises of which his deceased wife Hannah had been seised in fee, devised them to trustees for his daughter Eebecca for life, with remainder to his grandson William. On the death of the testator Eebecca entered into possession, and was suffered by Hannah's heir-at-law to remain in possession undisturbed for more than twenty years. William conveyed his remainder to the plaintiff. Eebecca, after the twenty years had elapsed, conveyed to the defendant in fee, and upon her death he took possession. The plaintiff, as assignee of William, brought ejectment, and it was held that the defendant was estopped from disputing his title> " The questionlis," said Blackburn, J., " whether Eebecca, having taken under the will which gave her an estate for life, is not estopped from saying that, as against William or the person claiming under him, the will, under which she came in as tenant for life and William was remainderman, is void . . . and that the heir-at-law is entitled to the land, and as twenty years have run against his title he is barred, and she, having acquired the fee by twenty years' undisturbed possession, can prevent William from taking under the will. Eebecca claimed under the will, and retained possession under the will, and she, as against everybody interested in the will, is estopped from denying its validity. The case is like that of a tenant coming in under a landlord ; and he is estopped from denying his landlord's title " : see IlawLshee v. Hawkshec (1853), 11 Hare, 230. And the principle applies where lands to which a settlor has no title are included in a settlement, and a limited owner under the settlement enters into possession. In Dalton v. Fitzgerald, [1897J 2 Ch. 86, C. A., John Dalton, who died in 1837 possessed of the Thurnam and Bulk estates, made a devise which comprised the Thurnam estate, but not — so it was contended — the Bulk estate, to trustees upon trust to settle the devised lands in a specified manner. The trustees by deed dated in 1842 settled both estates upon the trusts mentioned in the will, and succes- sive tenants for life entered under the settlement, the last being Sir Gerald Fitzgerald, who was in possession from 1867 to 1894. Sir Gerald devised the Bulk estate to the defendants, and, upon CUAP. I.] POSSESSORY TITLES. 129 the assumption that it was not included in the devise in the will of John Dalton, they claimed that Sir Gerald had acquired a title to the fee. The plaintiff claimed as remainderman under the settlement, and it was held, upon the principle of Board v. Board (siijjra), that he was entitled to succeed. The doctrine of that case, said Rigby, L.J., was not peculiar to the law of wills, find depended only upon an estate being taken under an instru- ment, whatever it might be. Even though the Bulk estate was not devised by the will, yet it was comprised in the settlement, and it was under the latter instrument that Sir Gerald Fitz- gerald entered. Hence his devisees were estopped from claiming that he had more than a life estate. But there is no such estoppel in a case where land of a No ostopixl testator is not in fact devised by the will, but a tenant for life '^^ f " '.'°*'"^ •^ ' _ under inope- named as such in the will enters upon the assumption that there mth-e will. has been an effectual devise. A doubt as to this distinction was suggested by Lindley, L.-L, in Dalton v. Fitzcjerald, [1897] '1 Ch. p. 91, and a decision against it was given in KeniagJian V. M'Xally (1861), 12 Ir. Ch. E. 89 (infra, p. 130), but it must at j)resent be taken to be established by authority. In Paine v. Jones (1874), 20 Eq. 320, a testator, who died in pahiex. 1830, by his will dated in 1824 devised all his real estate upon '^^"^''• trusts under which his widow was tenant for life. He acquired land after the date of his will. The widow entered into j)OS- session of this land in the belief that she was entitled under the will and continued in possession for more than twenty years. Malins, Y.C., held tliat her assignee was entitled after her death to keep the land as against the remainderman under the will. She had in fact no title under the will, and her assignee was not estopped from setting up her possession as giving her a title to the fee. In Strinfji'r v. Jones (1877), C. D. 1, a testator devised lie Stringers his real estate to his brother J., with power to sell and dispose ^"*'"'*- of it -, but in case he should not dispose of it, he devised it to J. H. for life, with remainder to the predecessor in title of the plaintiff. J. died in the testator's lifetime. On the testator's death in 1803, J. H. entered, claiming as tenant for life under the will, and continued in possession till his death in 18G9. He devised his real estate to the defendants. It was held by Jessel, M.E., that the gift to J. was an absolute gift, and that the gifts over were void. Thus on the death of J. his heir-at-law was T.r,.A. K 130 LAND AND RENT-CHARGES. [CHAP. I. entitled, but his title had been extinguished by the adverse possession of J. H. ; and since J. H. had no title under the will, he was not restricted to the life estate mentioned in the will, but took the fee. In the Court of Appeal a different view was taken of the gift to J., with the result that the remainders were held to be valid. Consequently there was no adverse possession by J. H., and the plaintiffs were entitled. Thus the present point was not considered, and the decision of Jessel, M.R., remains as an authority upon it. Be Anderson. In Be Anderson, [1905] 2 Ch. 70, a married woman, married before 1883, purported to dispose by will of freehold property, over which she had no power of appointment, in favour of her husband for life with remainders over. The husband entered and held the property from 1882 until his death in 1903. It was held by Buckley, J., that he had acquired the fee and that it passed under a devise of real estate in his will. He took nothing under the devise in his wife's will, and consequently those claiming under him were not estopped from setting up their j^ossessory title against the remaindermen under that will. Contrary I^ Kemaghan V. M'Nally (1861), 12 Ir. Ch. E. 89, on the view in other hand, it was decided by Brady, L.C., that the estoppel iWa%."" ' applied although the will did not pass any interest at all in the lands. Cestui que trusts entitled in common in fee under a will made in 1776 entered upon land which the testator had acquired, after that date. It was held that they were bound to refer their possession to the will, and, since they were to be deemed to hold as tenants at will to the trustees, the effect was to vest in the trustees the legal estate which had been acquired by possession as against the heir. And the view that a possession taken upon the footing of a will being valid must be referred to the will seems to be supported by the dictum of Martin, B., in Anstee V. Nehns (1856), 1 H. & N. 225. " My impression is that the Statute of Limitations can never be so construed that a person claiming a life estate under a will shall enter, and then say that such possession was unlawful, so as to give to his heir a right against the remainderman." In that case, however, the land in question passed under the will ; and the point now in question had not to be determined. And it is to be noticed that Kerncujlian v. M'Nally — apart from its being opposed to the subsequent English authorities — is inconsistent with the prior decision of Sugden, L.C., on the same will in Scott v. Nlxou (1843), 3 Dr. CHAP. I.] POSSESSORY TITLES. 131 & War. 388, that the legal estate had vested in the cestui que trusts by virtue of their possession : cf. Dalton v. Fitzgerald, [1897] 2 Ch. pp. 91, 95, C. A. It seems correct, therefore, to say that there is an established operative distinction between the case where a testator, having either no ^°'l iuopera- ,.,,.,, . . , tive instru- devisable interest or an nicomplete possessory title, actually ments. devises the land by his will, and the case where he has a title, whether absolute or only possessory, but does not make an effectual devise. In the former the persons who enter by virtue of the limited estates which the will creates are bound to refer their possession to the will. And so, too, where land to which the settlor has no title is actually comprised in a settlement, and the tenant for life, as in Dalton v. Fitzgerald, is thereby placed in possession of it. In such cases the instrument which creates the life estate is really operative on the particular propert}'. It is otherwise where the instru- ment is altogether inoperative on the property. A person entering on the property then takes no interest therein under the instrument. And though he may be named in the instrument as tenant for life, his possession is independent of the instrument, and he is bound by no estoppel in favour of the remainderman. (5) Title to ComiKUsation under the Lands Clauses Act. The question of the efficacy of a possessory title arises when Effect of.sale the compensation for land held under such a title, and taken ^^ue?^'^"* for the purposes of a public undertaking, is paid into Court under the Lands Clauses Act, 1845. The amount of the com- pensation is fixed by agreement between the apparent owner and the undertakers, or by the award of an arbitrator, or the verdict of a jury, and if the " owner " fails to make out a title to the satisfaction of the promoters, the amount may be paid into the bank (sect. 70), and thereupon the promoters may execute a deed poll vesting in themselves all the estate and interest in the lands "of the parties for whose use and in respect whereof" such compensation has been deposited (sect. 77). But these sections do not enable the promoters to agree upon the com- pensation with a claimant who has no title, and then vest the land in themselves. They refer to cases where an owner has a title to the fee, but by reason of outstanding interests — such as dower or jointure — in a third party, he is not able to convey an 132 LAND AND RENT-CHARGES. [CHAP. I. Payment of compensation to owner with possessory title. Possessory title not comiilete. unincumbered estate: Doiujhis v. London & Xo)i}i-]]\'stern Hy. Co. (1857), 3 K. & J. 173 ; Wells v. Chelmsford Local Board (1880), 15 C. D. 108. "It is impossible to suppose," said Wood, Y.C., in DoiKjlas v. London & Xortli-Westcvn Uij. Co., " that the Legislature could ever have contemplated that a person having a positively bad title, and who is merely in possession of land, should be at liberty by his own agree- ment to sell that land and to fix the price, adversely to another who may possibly be in a position to recover in eject- ment the very next day." Hence, where the person claiming to be owner does not show a title to the fee, the promoters cannot by paying in the sum he has agreed to take vest the fee in them- selves. The effect of the deed poll is to vest in the promoters only the actual interest of the party with whom the contract has been made, and if this is a possessory interest, that is the interest which passes under the deed poll : Ex imrtc Winder (1877), 6 C. D. 696. When the compensation has been deposited in the bank, application for payment out is made under sect. 78, and sect. 79 provides that if any question arise respecting the title to the lands, "the parties respectively in possession of such lands, as being the owners thereof . . . shall be deemed to have been law- fully entitled to such lands, until the contrary be shown to the satisfaction of the Court." The effect is that where the title is possessory, but more than twelve years of possession have elapsed before it is taken by the promoters, and there are no reasons for supposing that a longer period is required to j)erfect the title on account of the disability of the true owner, or the existence of future interests, the claimant is entitled to be treated as owner and to have the money paid out to him at once : He Alston's Estate (1856), 5 W; E. 189 ; Ex parte Wehster, W. N. (1866), p. 246. And a similar result has been arrived at when a person entitled under a lease has held over after the termination of the lease for more than the statutory period : Ex parte Chamberlain (1880), 14 C. D. 323 ; Ex parte Forde, [1894] 1 I. E. 156 ; though this has been questioned upon the ground that such a person does not hold as "owner": Gedije v. Commissioners of IJ^orks, [1891] 2 Ch. 630. Where the statutory period has not elapsed before the land is taken, the land should be valued as at the date of taking : Perry v. Clissold, [1907] A. C. 73 {supra, p. 123); and the money L'lIAF. I.] POSSESSORY TITLES. 133 will remain in Court until that period lias elapsed without claim by the true owner, and also any further period which under the circumstances may be proper in order to insure that no other claim can be successfully made : Ex imrtc Winder (1877), 6 CD. 696 ; Re Evans (1873), 42 L. J. Ch. 357 ; Re Harris, [1901] 1 Ch. 931 ; Ex parte Breach (1864), 12 W. E. 769. Where, however, at the time when the promoters take the Land taken land, the occupier's title is still lawful, as where he is a lessee before possea- ^ sorv title has holding near the end of a long lease, he cannot claim more than commenced, the actual value of his interest, notwithstanding the fact that the reversioner is unknown, and that, had the promoters not inter- vened, the occupier would probably have been able to gain a possessory title : Gedije v. Commissioners of Worlcs, [1891] 2 Ch. 630. There is, in such a case, no inchoate interest which, if left undisturbed, will ripen into possession. (6) Effect of Registration of Title on, the Acquisition of Title hij A dvcrse Possession. Under the Land Transfer Act, 1875 (38 & 39 Vict. c. 87), an Adverse adverse possession taken after the registration of land, whether possessory with an absolute or a possessory title, did not affect the title excluded by " of the registered proprietor; and it was the same with an J^^acT'isTo adverse possession taken before the registration of land with an absolute title. But where, at the date of registration of land with a possessory title, the statute was already running against the applicant for registration, it continued to run against him after registration, and a title adverse to the registered title could be acquired : Land Transfer Act, 1875, sect. 21. Under the Land Transfer Act, 1897 (60 & 61 Vict. c. 65), Adverse titles this scheme is fundamentally altered: partly by virtue of the ^'iiowcd tinder . , . ,. T . , . Land Transfer mclusion ot adverse possessory titles among the interests Act, 1S97. enumerated in sect. 18 of the Act of 1875, and thereby declared not to be " incumbrances " ; partly by virtue of the re-enactment of sect. 21 of the Act of 1875 as sect. 12 of the Act of 1897 with the addition of a proviso allowing for the rectification of the register in favour of a possessor who has acquired a title by adverse possession. Under the two Acts together the present rules as to adverse i*^"ics as to possession are as follows :- ':^ou. 134 LAND AND RENT-CHAKGES. [CHAP. T. (1) All registered titles, ^Yllethe^ absolute or possessory, are liable to be displaced by adverse interests acquired by possession ; but these interests, save as mentioned under (4), cannot be made effective without rectifica- tion of the register. (2) If, while the statute is running in favour of an adverse possessor, there is a registered transfer of the land for value, the statute is stopped, and thereupon it begins to run afresh against the transferee. (3) Any person who has acquired a title by adverse possession can obtain a rectification of the register in his favour. (4) As against a first registered proprietor with a possessory title, and, probably, as against transferees from him, whether for value or not, an adverse title arising from a possession commenced before the date of registration is, when complete, effective without rectification of the register. Deduction of These rules are not stated explicitly in the Acts, but they the rules from foUow from a Consideration of the relevant provisions. Sect. 18 the Land ^ Transfer Acts, of the Act of 1875 enumerates various liabilities, rights, and interests to which all registered land, unless the contrary is Eegistercd expressed on the register, is to be deemed to be subject, and title IS sub- -which are not to be deemed "incumbrances" within the ject to ad- verse posses- meaning of the Act ; and Schedule I. to the Act of 1897 extends sory interests. ^^^^ j-^^ ^^ ^^^ addition of the following item :— " Subject to the provisions of this Act, rights acquired or in course of being acquired under the Limitation Acts." The phrase " subject to the provisions of this Act " refers to sect. 12 of the Act of 1897, and in cases where registered titles are, by this addition to sect. 18, primd facie made subject to adverse possessory interests, it must be remembered that this result follows only so far as, and in the manner permitted by, sect. 12. The importance of the definition of adverse possessory interests as not being " incum- brances " lies in the fact that the estate vested in a first registered proprietor, whether absolute or possessory, and also the estate vested in a registered transferee, whether for valuable consideration or not, is subject " to such liabilities, rights, and interests, if any, as are by this Act declared not to be incum- brances " (see Act of 1875, sects. 7, 8, 30, 32, 33). Consequently it is subject to such adverse possessory interests as for the time being have been acquired, or are in course of being acquired. CHAP. I.] POSSESSOEY TITLES. 1^>") Bat this result is subject to sect. 1"2 of the Act of 1897, and How adver.sc the question remains bow far the acquisition of an adverse titles are possessor}^ title is affected by that section, ■which is as follows : — "ff ^ r • " A title to registered land adverse to or in derogation of the Land Transfer title of the registered proprietor shall not be acquired by any ^ct,lhO(, length of possession [and the registered proprietor may at any r^-i.i\ time make an entry or bring an action to recover possession of the registereil land accordingly. Provided that where a person would, but for ^^^^ ^-Y the provisions of the principal Act or of this section, have obtained a title by possession to registered land, he may apply for an order for rectification of the register under sect. 95 of the principal Act, and on such application the Court may, subject to any estates or rights acquired for valuable consideration in pursuance of the principal Act or this Act, order the register to be rectified accordingly]. "And provided also that this section shall not prejudice, as against any person registered as first proprietor of land with a possessory title only, any adverse claim in respect of length of possession of any other person who was in possession of such land at the time when the registration of such first proprietor took place." This section re-enacts, with the addition of the part in Rectification ^ of the register square brackets, sect. 21 of the Land Transfer Act, 1875, which as asjainst is repealed. In the absence of any provision exclusive of the p^roprietor. Statute of Limitations, a system of registration does not operate to prevent the registered title being extinguished by adverse possession : Belize Estate Companij v. Qnilter, [1897] A. C. 367, P. C. But the above section enunciates the general rule that a title adverse to that of the registered proprietor shall not be acquired by possession, and this taken by itself would override the provisions above mentioned in favour of adverse possessory titles. The general rule, however, is qualified by two provisoes, the first referring to registered titles generall}', the second to registered possessory titles against which the statute was already running at the date of first registration. The effect of the first proviso is to save adverse possessor}' titles as against registered titles generally, but to require that, as a condition of their being effective, the adverse owner shall procure the register to be rectified in his favour. The registered title is predominant so long as it remains on the register, but, upon the adverse title becoming complete under the 1\. P. L. Acts, the tidverse owner is entitled to have his name substituted 136 LAND AND RENT-CIIAEGES. [CHAP. I. Rectification as against registered transferee for value. on the register as proprietor. His adverse title is expressly recognized by the sections of the Land Transfer Act, 1875, already referred to, when read in connection with the extension given to sect. 18 by Schedule I. to the Act of 1897, the recognition, however, being subject to sect. 12 of the latter Act. This qualification is satisfied by requiring that the adverse title shall not be enforceable until it has been registered, but the right to registration is clearly conferred. In other words, the adverse possessory title is effective as regards the registered land upon condition that the possessory owner shall establish his adverse title to the satisfaction of the Court, and shall procure the register to be rectified. The adverse owner's right to rectification is, however, "sub- ject to any estates or rights acquired by registration for valuable consideration": sect. 12 (supra). Hence a jjurchaser from the registered proprietor is under no necessity to inquire into the state of the possession at the time of his purchase. If he procures himself to be registered it makes no difference that the statute is then running or has then run against his vendor. He takes what is, for the purpose of the statute, a new title ; but, if the adverse possession continues, the registered title is, as before, subject to it. The statute again commences to run, and if the transferee suffers twelve years to elapse without entry or action, the register can then be rectified against him. Thus if in 1908 B. dispossesses A., the registered proprietor, who is absolutely entitled and is under no disability, and A. does nothing for twelve years, at the end of that time — in 1920 — B. will have acquired a title and can call for rectification of the register. But if, in 1919, A. sells to C, and C. procures himself to be registered, but does not enter, the statutory period begins to run afresh against C, and he will not be barred till 1931. Statute running at date of registration witli posses- sory title. Adcerse Possession at Date of ]le(jistration of Possessory Title. The general rule of sect. 12 securing the predominance of the registered title makes no distinction between possessory and absolute titles, and, as regards an adverse possession begun after first registration, there is no reason for any difference. As to matters originating after first registration the register is as conclusive in the case of a possessory title as in the case of an CHAP. I.] rOSSESSORY TITLES. 137 absolute title. But a title registered as possessory gives no guarantee as to the state of the title prior to registration. Under the Laud Transfer Pailes, 1903, r. 18, it did not even ensure that the registered proprietor was at the date of registration in possession : see Marsluill v. Ilohoison (1905), 50 Sol. Journ. 75. This qualification of a registered possessory title follows from sect. 8 of the Act of 1875, which enacts that the registration " shall not affect or prejudice the enforcement of any estate, right, or interest adverse to or in derogation of the title of such first registered proprietor, and subsisting or capable of arising at the time of registration of such proprietor." A title based upon a possession held adversely to the registered proprietor at the date of registration is an estate adverse to his title, which was " subsisting or capable of arising " at the time of regis- tration within the meaning of sect. 8. Hence it prevails over the registered title, and under sects. 32 and 33 its prevalence continues as against a registered transferee, whether for value or not. This liability of a registered possessory title to be set aside Proviso in favour of an adverse possession existing prior to registration adwrfe^"^"'' is so emphatically an incident of the registered title that, even possession as apart from the second proviso to sect. 12 of the Act of 1897, registereii the liability would not, it is apprehended, be affected by the possessory main provision of that section excluding the Statute of Limita- tions. The general enactment that a title adverse to the registered proprietor shall not be acquired by possession could not be construed as overruling the provision in favour of a prior possession in the case of registered possessory titles. To make this clear, however, the second proviso Avas introduced, and as against the first registered proprietor the case was put outside sect. 12 altogether. As against such proprietor, there- fore, the statute, if it has commenced to run, continues to run, and the adverse title when complete is effective as against the registered title, and this is so without any rectification of the register. But the second proviso to sect. 12 operates, according to its Position of terms, only as against the first registered proprietor with a j-Ji'JJJ'^iiIe'iir^t possessory title. What happens to the adverse possessory title, rof^istcnd if a change takes place on the register, and a transferee, whether i"*"!^*""^ "'• for value or not, is registered as proprietor '? It would seem that no reliance can now be placed on the proviso. The 138 LAND AXD EEXT-CIIAEGES. [CILVr. T. expression "person registered as first proprietor " is not apt to describe any other than the first person named as proprietor on the register. It does not properly inchide a transferee, nor even an executor or devisee. Such persons are not first proprietors ; though, having regard to the scheme of the Acts, it might have been expected that the proviso would be extended to persons claiming under the first proprietor, and the words might possibly admit of this construction. But this is very doubtful, and the following is suggested as the correct way of dealing with the matter : — As already pointed out, the proviso is not really required for the purpose of preserving claims arising out of an adverse possession already existing at the date of first registration. These are preserved both as against the first proprietor and transferees from him by the sections which define the nature of the possessory registered title in his and their hands ; and claims thus expressly reserved are not taken away by the general provision of sect. 12. The second proviso fortifies this result as regards the first registered proprietor, but the fact that the proviso is limited in its eft'ect to him does not prevent the adverse owner from relying on sects. 82 and 33 of the Act of 1875 as against transferees. This, it is submitted, is the correct view, and the adverse estate arising out of a possession prior to first registration prevails as against registered transferees whether for value or not, without any need for rectification of the register ; though of course rectification would be advisable, and, if applied for, would be ordered by the Court. If, however, the restriction of the proviso to the first registered proprietor is held to be an intimation that the setting up of the statute as against transferees from him is, notwith- standing the express language of sects. 32 and 33 of the Act of 1875, subject to sect. 12, then it can be set up only in manner specified in the first proviso. The statute continues to run against voluntary transferees notwithstanding the transfer ; as against transferees for value it is stopped and begins to run afresh from the transfer ; but in either case the register must be rectified before the adverse possessory title can be made available. CHAP. I.] POSSESSORY TITLES. 139 Erfiiifiiiisliment of Equity of PwdemjHion. Where the proprietor of a registered charge goes into Owner of possession, the equity of redemption will be extinguished and he charge m will be entitled to be placed on the register as proprietor at the i'"^9ession. end of twelve 3'ears, provided that there has not been a registered transfer for value. In that case it would seem that the twelve years must be reckoned again from the date of the transfer : cf. Brickdale and Sheldon's Land Transfer Acts, 2nd ed. pp. 327, 328. 140 LAND AND RENT-CHARGES. [CHAP. I. Section X. — Crown Lands. Sixty years Prior to the statute 21 Jac. 1, c. 2, there was no limitation on Crown." ^*^ proceedings by the Crown to recover land, the maxim of the common law being " nullum tcmpus occurrit regi" (Litt. s. 178). According to Lord Coke (3 Inst. 188) this led to great abuses, it being the practice of indigent persons to search out and obtain grants of ancient Crown titles and then set them up against persons who had been in long enjoyment of the lands, and who had lost the means of establishing their own title under the Crown. The statute 21 Jac. 1, c. 2, imposed a limitation of GO years on suits by the Crown to recover manors, lands, and hereditaments (other than liberties and franchises). But inas- much as the 60 years was reckoned before the commencement of the then session of Parliament — namely, 19th February, 1621 — the statute in course of time lost its effect. Accordingly by the Crown Suits Act, 1769 (9 Geo. 3, c. 16), usually known as the Nullum Tempus Act, the modern method of limitation was ^ ■ adopted, and the period of 60 years was reckoned prior to the commencement of the proceedings to recover the land. » • '^ (1) Possession against the Croicn. Possession The possession of the Crown is said to be of two sorts, in yOro\\n. -^^^ ^^^^ -^ deed: in law, merely by force of law; indeed, by actual taking by an officer, though without office found (Chitty, Prerog. of Cr. 251). Also, where the possession is vacant, the effect of office found is said to be to vest the possession in deed in the Crown, or (prior to the Forfeiture Act, 1870) even without office found, in case of treason : Doe v. Redfern (1810), 12 East, p. 114. In such a case a possession which is really only possession in law is treated, in favour of the Crown, as though it were actual possession. And where the Crown is once in possession by title of record, the possession continues, in theory, until the record is changed, and it is said that the Crown is not put out of possession or disseised by the wrongful entry of a subject : Lee v. Xorris (1597), Cro. Eliz. 331 ; Doc v. CHAP. I.] CKOWX LANDS. 141 .1/oms (1835), 2 Bing. N. C. p. 19G; Tathill v. Ror/crs (1814), 1 Jo. & Lat. p. 67. If possession once held by the Crown remained in the Crown ^ft>ct of notwithstanding the actual occupation of another, this would posLSbn by mean that the occupier could not maintain trespass : see Harper <-"™''^"- V. Charh'strorth (1825), 4 B. & C. 574 (where, however, the Court declined to deprive of this remedy one who had entered by the permission of the Crown) ; and an occupier without title, if ejected by a wrongdoer, would not be able to recover pos- session. The continued seisin of the Crown would rebut the presumption of seisin in fee in the occupier : Goodtith v. Baldwin (1809), 11 East, 488. And if, as it now seems correct to say {supra, J). 124), possession is a sufficient title in ejectment, he ■would just as little be able to recover on his actual possession. But the theory that possession remains in the Crown in spite rossessiou of the occupation by a stranger applies only to a limited extent, "^f >' ^® , ; see llr MaxicelVs Estate (1891), 28 L. E. Ir. 350, at p. 362; but, under sect. 2 of the Nullum Tempus Act, it was sufficient that they were in charge wdth any proper officer of the revenue. And if any particular subject-matter was returned by the officers in the Crown revenue accounts, this was sufficient proof of its having been kept in charge to exclude the statute, although they also returned "nil," and the claim had not been put in suit for over sixty years: Att.-Gcn. v. Maxwell (1814), 8 Pr. 76, note; Att.-Gen. v. Eardley (1820), 8 Pr. 39 ; cf. Tnthill v. Rogers (1844), 1 Jo. & Lat. p. 82; Att.-Gen. for Neiv South Wales v. Iar-c, [1898] A. C. p. 686, P. C. This travesty of the doctrine of adverse possession was abolished by the Crown Suits Act, 1861 (24 & 25 Vict. c. 62), which also deprived the Crown of the right to exclude the statute by receipt merely of the rents and profits of an honour or manor of which the land in question formed part. To be effectual the receipt must now be actual receipt of the rents and profits of the particular land. The provisions of this Act, simplified as in the above statement of the Nullum Tempus Act, are as follows : — Crown Suits Act, 18G1. s. 1. No saving where rents only in charge to Crown. Sect. :;. " The Crown shall not sue any person for or in any wise con- cerning any lands or hereditaments (other than liberties or franchises) which such person or his predecessors in title have held or of which they have taken the rents or profits for the space of sixty years before the commencement of the suit, by reason only that the same lands or hereditaments, or the rents or profits thereof, have been in chai'ge to the Crown, or stood insitper of record within the said space of sixty years. " The Crown shall not be deemed, for the purposes of 9 Geo. 3, c. 16, to have been answered the rents or profits of any lands or hereditaments, which shall have been held or enjoyed, or of which the rents or profits shall have been taken, by any other person, for ciiAr. I.] CROWN LANDS. 145 the space of sixty years next before the commencemeat of any pro- No saving ceedinfT for recovering the same or in respect thereof, by reason only ^vhere land is f 1-1 p part I if manor of the same lands or hereditaments having been part of any honour the rents of or manor or other hereditaments of which the rents or profits which are riiiswGrGQ. to shall have been answered to the Crown or its predecessors in title." Crown. Sect. 1 of this Act only applies where lands have been Effect illur mjnis Act. adversely held or the rents and profits adversely taken ; it does ^"^'"™ not extend to the case of the withholding of rent by the terre tenant. Hence a rent-charge due to the Crown may still, in England, be kept alive by being simply entered in the revenue books, although there is no payment in respect of it: Re MaxicclVs Estate (1891), 28 L. E. Ir. 356. But apart from such cases, clause 1 of sect. 1 of the Nullum Tempus Act now operates as though the parts enclosed in brackets in the above summary (p. 143) were struck out. The provision of the Irish Nullum Tempus Act (Crown Ireland. Claims Limitation (Ireland) Act, 1808 (48 Geo. 3, c. 47)), corre- sponding to clause 1 of the 1st section of the English Act, is as follows, the actual words being summarized as in the statement of such clause given above : — " The Crown shall not sue any person for or in any wise con- Irish Nullum cernms: any lands or hereditaments (other than liberties or Tempus Act, , ? - , , ...... „ . , s. l,cl. 1. franchises) or the rents and profits thereof by reason of any right Sixty years' or title which has not first accrued within sixty years next before limitation, the commencement of the suit, unless the Crown or its pre- decessors in title have been in the actual seisin thereof, or have been answered by force of any right or title to the same the rents or profits thereof \or the rents or profits of any honour, manor, or other hereditament whereof the premises in question are part^ within the space of sixty years \or that the same have been duly in charge to the Crown within such space\ The Nullum Tempus (Ireland) Act, 1876 (39 & 40 Vict. c. 37), Nullum by sects. 1 and 2, repealed the portions in brackets in terms ^ir^and) Act, similar to those of the Crown Suits Act, 1861 {supra, p. 144), i^"G. but the repeal was limited, in the manner already stated, to cases where there had been adverse receipt of rents as dis- tinguished from withholding of rent. In lU MaxicelVs Estate (1891), 28 L. Ii. Ir. 356, a quit rent payable to the Crown, and entered in the Crown rental at the time of its creation, had not been paid for over sixty years. It was held, following Att.-Gen. V. Eardh'ij (1820), 8 Pr. 39, that the rent was " duly in charge " T.L..\. L 146 LAND AND PwENT-CHARGES. [CHAP. I. CroTvn Lands Act, 190U, s. 9. Limitation on quit-rents iu Ireland. Effect of Irish statutes. " Actual seisin." Eeceipt of rents and profits. within the meaning of sect. 1 of the Irish Nullum Tempus Act, and that the Act of 1878 only applied, in the case of a quit-rent, where the rent had been wrongfully received by a subject for the statutory period. But this has been corrected (though in Ireland only), and the limitation made to apply to the non- payment of a rent, by sect. 9 of the Crown Lands Act, 1900 (6 Ed. 7, c. 28) :— " No proceedings shall be taken by or on behalf of the Crown for enforcing the payment of any quit-rent or any other perpetual rent payable to the Crown in Ireland or any arrears thereof but within sixty years from the time when such rent was last received by or on behalf of the Crown, and after the expiration of that period the right of the Crown to the rent and arrears shall be extinguished." The effect of these enactments is that in Ireland the statute is excluded where the Crown has, within the sixty years, been either in the "actual seisin" of the lands, or in receipt of the rents and profits. The meaning of the phrase "actual seisin " was discussed in Tuthill v. Piogcrs (1844), 1 Jo. & Lat. 36. The difficulty is that if the Crown has once been seised it cannot technically be disseised {supra, p. 140). Blackburne, M.E., who was sitting with Sugden, L.C., took the natural view that actual seisin meant actual possession (p. 67). Lord St. Leonards hesitated to go as far as this, and referred to instances in which a seisin is recognized as actual, even though the person seised has neither entered nor received rent. Thus where one dies seised of land in the possession of a tenant and the land descends to his heir, the heir has at once a seisin in deed : Bushlij V. Dixon (1824), 3 B. & C. 298. He was content to say that in the case before him the Crovrn could not be deemed to be in the actual seisin of the lands within the meaning of those words. Inasmuch, however, as he attributed this result to the fact that, though the seisin and the right to possession had been in the Crown in 1776, a subject had enjoyed the lands for sixty years by claim of right to the fee without interruption by the Crown, he appears in effect to have assented to the view taken by the Master of the Rolls ; and there can be no doubt that where a subject gains adverse possession, the Crown is no longer " in the actual seisin " for the purpose of the statute. Under both the English and Irish Acts the Crown's title is saved by receipt of the rents and profits, or, to use the fuller CHAP. I.] CROWX LANDS. 147 phrase of the statutes, "the rents, revenues, issues, or profits." Such receipt must be in respect of the entire income from the land, and the statute is not excluded by the receipt of a quit- rent. This appears more clearly from sect. 5 (infra, j). 150). (B) EstaUisliment of Adverse Title. The second clause of sect. 1 of the English and Irish Nullum Tempus Acts is as follows : — "And all persons, according to their several estates and interests XuUum which they have or claim to have in the same respectively, shall at Tempus Act, all times quietly hold against the Crown claiming by any title, Nullum M'hich lias not lirst accrued within the said space of sixty years, Tempus all lands and hereditaments (except liberties and franchises) which s 1 el 2 ' they or their predecessors in title have held, or of which they have taken the rents and profits, for sixty years next before the commencement of proceedings by the Crown for recovering the same, unless the Crown or its predecessors in title, by force of any right or title [for Ireland, have been in the actual seisin thereof or] have been answered by virtue of any such right or title the rents, or other profits thereof within the said space of sixty years [or that the same have been duly in chartje or stood insuper of record loithin such sjjace]." The concluding words are, in effect, repealed by the Crown Suits Acts, 1861, and the Nullum Tempus (Ireland) Act, 1876 {supra, pp. 144, 145). There follows in the English Act a third clause which, like rretcuced the first two clauses, was copied from 21 Jac. 1, c. 2, and was *^*^^^" intended to secure the possessor who had held adversely to the Crown for sixty years against persons claiming under the Crown under grants of pretenced titles, or, to use Lord Coke's words, "against patentees and grantees of concealments, defective titles, or lands not in charge, and all claiming under them." A beneficial law, he calls it, both for the Church and the Common- wealth, in respect of the multitude of letters patent and grants of these natures and qualities, but it had become obsolete before the date of the English Act, in which it was needlessly introduced. It is not found in the corresponding Irish enactment (48 Geo. ■^ c. 47). The first clause of sect. 1 is negative and exclusive of the Extinguish- right and title of the king; the second is affirmative and ™;"J,°y establishes the estate of the subject O? Inst. p. 100). In effect, title. I'lS LAND AND RENT-CHARGES. [CHAP. I. the second corresponds to sect. 34 of the H. P. L. A., 1838, which extinguishes the title against which the statute has run. "These distinct clauses," said Blackhurne, M.E., in Tnthill v. Rogers (1844), 1 Jo. & Lat. p. 62, "had objects perfectly different. The first was a limitation to the suit, and barred the remedy of the Crown; the second, by confirming for all time thereafter the estate had or claimed by the subject, and enjoyed for sixty years, against the Crown's title, barred and extinguished that title and transferred it to the subject ; " and see further under sects. 5 to 7 (infra, p. 151). And even though the estate (as opposed to a mere right of entry : see j>er Sugden, L.C., in Tathill V. Rofjrrs(18U), 1 Jo. & Lat. p. 82) remains in the Crown, yet the statute runs if one claiming an interest in the land actually takes the rents and profits ; " for albeit the king may in law charge him as bailiff, yet without question, de facto, he did take the rents, revenues, issues, and profits, and that sufficeth to answer the letter and meaning of this Act " : 3 Inst. 190. But the estate of the adverse possessor is established only against the Crown, and the Act does not bar any right which a subject — as mortgagee, for instance— may have against the possessor (ibid.). But when all claims, as well of the Crown as of in- dividuals, are extinguished, the title is good and will be forced on a purchaser {stqyra, p. 118). (ii.) Fiitii)-e Estates in the Croirn. Future estates Under clause 1 of the Nullum Tempus Act, sect. 1, a sixty in Crown. years' possession does not bar the Crown if the right or title of the Crown has accrued within that period. "Eight or title "^ refers to right or title to possession, and hence in strictness it was unnecessary to make any provision for future estates vested in the Crown. The right does not accrue, and the statute does not run, till the future estate falls into possession. The matter, however, was not left to be dealt with on this simple footing, and the case of future estates is specially dealt with by sects. 3 and 4^ while the particular case of a reversion upon a Crown lease is governed by sect. 4 of the Crown Suits Act, 1861. The following is the effect of these sections : — Nullum " This Act shall not bar King George III. or his successors from TcmpuB Act, j^^y \&nds, or hereditaments whereof any reversion or remainder now is in him, for or concerning such reversion or remainder : Ineffectual Crowii srrauts. CHAr. I.] CROWN LANDS. 149 " Nor from any reversion or remainder, or possibility of reversion Reversions in or remainder in any of his predecessors, which by the determina- '^"^ Orown. tion of any limited estate of fee-simple, or of any fee- tail or other particular estate, has first fallen into possession within the space of sixty years next before the commencement of proceedings for recovering the same, or in respect thereof ; " Nor from any right or title first accrued to the Crown in or to any lands or hereditaments within such space of sixty years. " This Act shall not extend to any lands or hereditaments ^* *• mentioned to be granted by any predecessors of King George III. to any person for any limited estate in fee-simple, or for any estate tail or other particular estate, which several estates (if the same had been effectual) would have first fallen into possession within the space of sixty years next before the commencement of proceedings for recovering the same, or in respect thereof ; nor to any lands or hereditaments mentioned to be granted by any pre- decessors of King George III. to any person in fee- tail or other particular estate, whereof the reversion or inheritance ( if such estate tail or other particular estate had been effectual) would have continued in the Crown within the space of sixty years next before the commencement of proceedings for recovering the same, or in respect thereof." These sections were reproduced, with doubtful benefit, from Effect of 21 Jac. 1, c. 2. The re-enactment of clause 1 of sect. 3 was to'tuture an obvious error. It was originally an absolute saving of (^states, reversions then vested in James I., and, having regard to the fixed period of limitation — sixty years before 1623 — the saving was not inappropriate. But it had no application to the Nullum Tempus Act "svith its new princij)le of a movable limitation : see Tuthill v. liorjcrs (1841), 1 Jo. & Lat. p. 83, a case in which the second clause was applied. There a reversion which had existed in George lll.'s predecessors fell into possession in 1776, and an adverse possession of sixty years from that date was held to be a bar. If the clause was required, its restriction to reversions existing in predecessors of George III. was a mistake. The third clause was a mere repetition of the rule enacted in sect. 1. In fact, the object of the entire section was sufficiently attained by sect. 1 : see 3 Inst. 191. In the case of a future estate in the Crown, the Crown's right to possession does not accrue until the determination of the particular estate, and until that happens the statute does not run. Sect. 4 deals with the case of a defective grant by the Crown of a particular estate. The Crown's right is to accrue at the same time as if the grant ir.u LAND AND REXT-CHARGES. [CHAP. I. Reversion on Crown lease. Crown Suits Act, 1861, s. 4. Right of Crown accrues on determina- tion of lease. had been good, but the section appHes only to grants by the pre- decessors of George III. It is not introduced into the Irish statute, and in fact it is obsolete. The principle that in the case of a reversion the right of the Crown does not accrue until the reversion falls into possession applies to a reversion upon a lease for years ; but in Att.-Gen. v. Eardleij (1820), 8 Pri. 39, it appears to have been doubted whether the case was, in fact, saved under 9 Geo. 3, c. 16, and the following provision was introduced into the Crown Suits Act, 1861 (24 & 25 Vict. c. 62) :— "In the construction of 9 Geo. 3, c. IG, and of this Act, the right or title of the Crown to any lands or hereditaments com- prised in any lease for a term of years, or for life or lives, granted by the Crown, shall not be deemed to have first accruecl until the expiration or determination of such lease as against any person whose possession of such lands or hereditaments, or whose receipt of the rents or profits thereof, shall have commenced during the term of such lease, or who shall claim under any person whose possession or receipt shall have so commenced." The same provision is made for Ireland by sect. 3 of the Nullum Tempus (Ireland) Act, 1876 (39 & 40 Vict. c. 37). Thus, during the currency of a Crown lease, the statute does not begin to run against the Crown in favour either of the lessee, or of a person in adverse receipt of the rents. Nullum Tempus Act, 8. 5. Quit-rents, etc., preserved. S. (J. Saving of private rights. 8. 7. Rent-charges saved if actually i)aid. (iii.) Saving Clauses. The remaining relevant sections of the Nullum Tempus Act may be stated as follows : — " All the said lands and hereditaments shall be held of the Crown and of other persons by the same tenures, services, fee- farms, chief rents, heriots, and other duties as the same ought to be holden if the estates established by this Act had been before the Act eifectual. " Saving to every person (other than the Crown) all such rights in the said lands or hereditaments as he had before the making of this Act. " "Where any fee-farm rent or other rents have been answered and actually paid to the Crown within the space of sixty years next before any proceeding shall be commenced for recovering the same or in respect thereof out of any manors, lands, or hereditaments, of which the estates, being defective, are established by this Act, CHAP. I.] CROWN LANDS. 151 the Crown shall hold the said rents and arrearages thereof as fully as the same were enjoyed at any time within the said space of sixty years." Sects. 5 and G are enacted in sect. 4 of the Irish Act, and Receipt of sect. 7 in sect. 5 of that Act. All are reproduced from 21 Jac. 1, l"^*-""^"*"- c. 2. These sections confirm the view that clause 2 of sect. 1 confers an actual estate upon the subject after sixty years' possession. Clause 2 "does not provide for the protection of actual title, in which there might be some defect or infirmity ; but it validates the title and estate which the subject claimed to have. We find accordingly that the 4th and 5th sections [of the Irish Act] treat the first as having established and made sure the estates, rights, and interests of the subject " : TutlriU v. Bogers (1844), 1 Jo. & Lat. p. 62, per Blackburne, M.R. The sections also confirm the view that the receipt of a quit-rent, or rent in the nature of a quit-rent, does not save the right of the Crown. To exclude the statute on the ground of receipt of rent, the Crown must have been in receipt of the general profits of the estate. In Tafhill v. Fiogcrs (1844), 1 Jo. & Lat. 36, lands in Ireland were granted by Charles 11. for an estate tail at a rent of £4 18s. 5?,(/. The estate tail determined in 1776, and for more than sixty years from that date the persons deriving title under the grantee continued in possession of the lands, claiming the fee, and paying the rent of £4 18.s. 5M. as quit-rent. It was held that this rent was distinguishable from the general profits of the land, and that the receipt of it was not a receipt of the ** rents, revenues, issues, or profits" of the lands so as to exclude the statute. On the contrary, the statute confirmed the title of the possessors, but subject, by virtue of the sections now under consideration, to the quit-rent : 1 Jo. & Lat. p. 80 ; 3 Inst. 191. The Act 21 Jac. 1, c. 2, concluded with a proviso against Concealed the statute being excluded by land being put in charge under ^'*'^^' grants of concealed or defective titles unless judgment for the Crown had been given within fifty years. This was needlessly repeated in the Nullum Tempus Act (sect. 10); it is omitted in the Irish statute. 152 LAND AND EENT-CHAEGES. [CHAr. I. >?iimmarv. (iv.) Effect of N nil inn Tempns Acts. The effect of the Nullum Tempus Acts is as follows : Time runs against the Crown in respect of manors, lands, and other hereditaments (except liberties and franchises) from the date of accrual of the right of the Crown to possession; and the Crown's right is barred and its title extinguished in sixty years, unless ■within that period the Crown has been in actual receipt of the rents and profits. Eeceipt of a rent-charge or quit-rent out of the land saves the Crown's title to the rent, but not to the land ; and receipt of the rents of part of an estate does not preserve the title to the whole estate. But actual receipt of a rent-charge is not necessary (in England) to keep it alive against the terre- tenant. It is sufficient if it is duly charged in the Crown books. In the case of a Crown lease the statute does not run against the Crown till the determination of the lease, notwithstanding that a stranger may be in possession or in receipt of the rents. Duchy of Cornwall. (3) Dnchy of Cornnxdl. The Duchy of Cornwall Act, 1844 (7 & 8 Vict. c. 105) enacts for lands and hereditaments of the Duchy in the county of Cornwall (other than liberties or franchises, and mines and minerals) a limitation of sixty years in manner similar to the Nullum Tempus Act. Time runs from the accrual of the right (sects. 71, 76), and the bar is complete in sixty years, unless the Duke of Cornwall or his predecessors in title have been answered the rents and profits [or— until the Crown Suits Act, 1801—///^ same liad been in cliarr/e or had stood insii2)er of record] within the sixty years, and the Act affirms the title of the persons in whose favour time has run. Sect. 72 provides that the Duke of Cornwall is not to be deemed to have been answered the jDrofits of lands which have been held, or the profits of which have been taken, by any other person for sixty years before suit by reason only of the same having been part of any honor, manor, or hereditament of which the rents have been taken by the Duke of Cornwall or his predecessors in title. This anticipated the amendment of the Nullum Tempus Act made by the Crown Suits Act, 1861, s. 3 {snpra, p. 144), and sect. 1 of this latter Act is also by sect. 2 exj)ressly applied to lands of the Duchy of Cornwall. Conse- quently the duchy rights are not now saved by lands having been CHAP. I.] CROWX LANDS. 15c in charge or having stood insujH'r of record within the sixty years. Sect. 73 of the Duchy of Cornwall Act, 1844, imposes a limitation of sixty years on proceedings by the duke for the recovery of mines and minerals under lands in the county of Cornwall, where the lands have been adversely enjoyed for a period of sixty years without interruption by the duke or persons claiming under him, and where the mines and minerals have been substantially worked and gotten at any time during such period by the possessors of the lands ; and where they have not been worked during such period, or the profits thereof received, by the duke or persons claiming under him. If, under the same conditions, the possessor has not worked the mines, the period of limitation is one hundred years (sect. 74). The Act enacts in sects. 76-79 provisions corresponding to those in sects. 3, 4, 5, and 7 of the Nullum Tempus Act (sii2)m, pp. 148-150), and under sect. 4 of the Crown Suits Act, 1861, the statute does not run, in cases where land has been let on lease for years or lives, until the determina- tion of the lease. Under 23 & 24 Yict. c. 53, and the Act of 1861 just mentioned, lands of the Duchy of Cornwall not in that county, and also claims to navigable rivers, estuaries, ports, or branches of the sea, or the soil thereof, or the shores between high and low water mark — which claims were excepted from the Duchy of Cornwall Act, by sect. 86 — are made subject to the limitation of the Nullum Tempus Act, as amended by the Act of 1861. The result as to property of the Duchy of Cornwall is as Summary as , „ i i J J to Duchy. lollows : — (1) Liberties and franchises are subject to no statutory limitations. (2) Lands (other than foreshore, etc.) and mines and minerals within the county of Cornwall are subject to the limitation of 7 & 8 Vict. c. 105, as amended by sects. 1 and 2 of the Crown Suits Act, 1861. (3) Foreshore, etc., whether within or without the county, and lands and mines and minerals without the county, are subject to the Nullum Tempus Act as amended by the Crown Suits Act, 1861. CHAPTER 11. Kule of limitation. K. P. L. A., 1874, s. 8. Mortgages, judgments, and legacies. Scope of sect. 8. IMort gages and liens. MONEY CHARGED ON LAND, JUDG5IENTS, AND LEGACIES. The E. p. L. A., 1874, by sect. 8 (replacing sect. 40 of the Act of 1833), imposes a twelve years' limit on sums of money charged on land, sums of money secured by judgment, and legacies : — "No action or suit or other proceeding shall be brought to recover any sum of money secured by any mortgage, judgment, 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." There follows a saving for part payment or acknowledgment, as to which see Chap. VII. Notwithstanding the position of the word "judgment," the section extends to all judgments, whether charged on land or not. Personal estate of an intestate is subject to a twenty years' limitation under the Law of Property Amendment Act, 1860 (infra, p. 169). Section I. — Sums of Money Chaeged upon Land or Eent. (1) Money subject to Sect. 8. Sect. 1 of the R. P. L. A., 1874, relates to actions to recover land ; sect. 8 relates to actions to recover money : Doe v. WilUams (1836), 5 A. & E. 291, 296 ; see Kihhle v. Fairthorne, [1895] 1 Ch. 219, 224. Thus an action of foreclosure is barred by sect. 1 : Heath v. Pugh (1881), 6 Q. B. D. p. 364, C. A. (siqira, p. 9) ; an action on the covenant in the mortgage is barred by sect. 8 : Sutton v. Sutton (1882), 22 C. D. 511, C. A. Actions to recover annuities charged on land are actions to recover rents, and are barred under sect. 1, while the recovery of arrears of the annuity is limited by sect. 42 of the E. P. L. A., 1833 : supra, ix^7;'injra,i\ 176. Sect. 8 applies by its express terms to sums of money secured by mortgage or lien — that is, by equitable lien as distinguished cpiAr. n.] SUMS of money chahged upon land ok eent. 155 from a possessory or commou law lien. The form of the mortgage is immaterial, and, ^Yhen formerly a charge might be preserved against the statute by an express trust (see now sect. 10 of the E. P. L. A., 1874, infra, p. 162), the exemption did not extend to a mortgage by way of trust for sale : Humble V. Humble (1857), 24 Beav. 535 ; ef. Locking v. Parker (1872), 8 Ch. 30 (.s/(j)m, p. 72). Equitable liens "are founded upon the consideration of a duty or implied intention on the part of the owner of property to make it answerable for a specific claim " : Fisher on Mortgages, 5th ed., p. 252. Of this nature is a vendor's lien for unpaid purchase-money, and such a lien is liable to be barred under the section : Toft v. Stephenson (1848), 7 Hare, 1. So also is the lien of a remainderman upon arrears of income due to the estate of the tenant for life to recoup to the remainderman interest paid by the tenant for life out of corjms : Kirwau v. Kennedy (1869), Ir. E. 3 Eq. 472. A sum of money is " charged upon " land within the meaning Sums -'other- of the R. P. L. Acts when the land can only be enjoyed subject ^^^q 'jJi"^^^!? to its payment, although there is no direct remedy against the ^bie out of" land itself: Payne v. Esdaile (1888), 13 App. Gas. (SV^ {supra, '"^y^^"^^" p. 26), decided on the same words in the definition of "rent" in sect. 1 of the E. P. L. A., 1833. The words do not include a bond debt in which the heir is bound: Pioddam v. il/o/7('_^(1856), 2 K, & J. 336 ; for although the heir or devisee of the obligor can only enjoy the land subject to the liability to pay the debt, it is free from such liability in the hands of a bond fide alienee for value : British Mutual Investment Co. v. Smart (1875), 10 Ch. 567. Thus the debt is not necessarily incident to the enjoyment of the land, and is not, therefore, "charged upon" the land. Moreover, money is not charged upon land unless there is land upon which the charge can take effect, and hence a charge of debts upon real estate, by a testator who leaves no real estate, is not affected by the section : lie Jfcpburn (1884), 14 Q. B. D. 394. Compensation payable under the doctrine of election is pro- Election. bably charged upon land. If not, the limitation is six years from the date of election : Spread v. Mon/an (1865), 11 H. L. C, p. 617. The proceeds of sale of real estate directed to be sold are Procccils of within the words "money charged upon or payable out of estate ''''^ land": Pjowyer v. ]Voodman (1867), 3 Eq. 313; Kirkland v. Pcatfield, [1903] 1 K. B. 756 ; ef Pawsey v. Barnes (1851), 20 L. J. Ch. 393. 156 MONEY CHARGED OX LAND, JUDGMENTS, LEGACIES. [CHAr. IL Specialty debt chiirgcd on laud. Former exception of personal remedies. (2) Ticmcdics ivliicli arc harrcd. "When a sum of money charged on land is also secured by covenant, the creditor lias a remedy against the land and a remedy on the specialty against the debtor. Sect. 40 of the E. P. L. A., 1833 (3 & 4 Will. 4, c. 27), in terms barred every proceeding to recover such money, and therefore appeared to bar the action on the covenant as well as the remedy against the land. Actions on covenants were, however, subject to a twenty years' limitation by a later statute (c. 42) of the same session (the Civil Procedure Act, 1833), and, but for the identity of the periods, it would have been necessary to determine whether the action on the covenant was barred only by c. 42, or was included in the bar of c. 27. This question arose, however, with respect to arrears of rent and of interest, the limit of six years being imposed generally by sect. 42 of c. 27, while to an action on the lease or on the covenant the limit was twenty years under c. 42. Did sect. 42 bar the real and the personal remedy alike, or did it bar the real remedy only, leaving the creditor at liberty to recover twenty 3'ears' arrears, if his action was personal ? The same question arose in respect of the twenty years' limitation under the Irish C. L. P. A. s. 20 ; infra, p. 197. In Hcnrii v. Smith (1842), 2 Dr. & War. p. 391; cf. O'llara V. Crcarjh (1841), Long. & T. 65, Lord St. Leonards expressed the view that sect. 42 of c. 27 was an express bar to all remedies alike. But it was settled by a series of cases, terminating with Hunter v. Nocholds (1850), 1 Mac. & G. 640, that the real and personal remedies had each their separate period of limitation ; or, more strictly, that while all remedies, real and personal, were x>rimd facie barred by c. 27, an exception as to actions on a covenant or on an indenture of demise was introduced by c. 42. Thus, where a principal sum charged on land, or a rent- charge, was secured by covenant, or where rent was reserved b}^ indenture of demise, then proceedings for the recovery of arrears of interest {Hughes v. Kelly (1843), 3 Dr. & War. 482), or of rent, whether rent-charge or rent on a lease (Harrison v, Duignan (1842), 2 Dr. & War. 295; Hunter v. KocMds ; cf. Percival v. Dunne (1858), 9 Ir. C. L. E. 422), against the land, were barred in six years ; but an action upon the covenant (Strachan v. Thomas (1840), 12 A. & E. 536; Manning v. Phelps (1854), CllAV. II.] SUMS OF MONEY CHARGED UPON LAND OR RENT. 157 10 Ex. 59), or upon the indenture of demise (Par/ct v. FoJci/ (1886), 2 Bing. N. C. 679), was barred in twenty years. But when by sect. 8 of the R. P. L. A., 1871, the period in Real and respect of sums of money charged on land was shortened to '^:'®'^'*j"^g qq twelve years, the question was raised afresh, and it was neces- covenant now sary to determine, as to such sums, whether the section still together. barred the remedy against the land only, leaving the remedy on the covenant to the twenty years of the Civil Procedure Act, 1833. In Sutton v. Sutton (1882), 22 Ch. D. 511, C. A., it was Sutton y. held by the Court of Appeal that the old doctrine as to c. 42 ^"'^"'*- being an exception out of c. 27 could not influence the con- struction of the Act of 1874, and that sect. 8, in barring generally any action for the recovery of money charged on land, must be taken to bar all remedies alike, both real and personal. Consequently where money is charged on land and secured also by covenant, the remedy against the laud and the remedy on the covenant are both barred in twelve years. As to the subsequent history of this litigation, see Fw Turner (1894), 43 W. E. 153. And the result is the same although the covenant by the Covenant in mortgagor is contained in a separate deed. The money is still ^^^^^^'^ e t ee . " secured by a mortgage," and the remedy on the collateral security is barred in twelve years : Fcarnside v. Flint (1883), 22 C. D. 579; Re Powers (1885), 30 C. D. 291, C. A., j^er Bowen, L.J., at p. 297; and as to the doctrine of Sutto)i v. Sutton, see Dower v. Dower (1885), 15 L. R. Ir. 264 ; Re Nu(jent\ Trusts (1885), 19 L. R. Ir. 140. But while, as against a mortgagor, sect. 8 of the Pi. P. L. A., Surety cove- 1874, bars alike the real and the personal remedy, it does not sepaiafc tleeil. bar the remedy against a surety who has bound himself by a bond separate from the mortgage: Re Powers (1885), 30 C. D. 291, C. A. An action on the bond, it was said in that case, was not an action to recover a sum of money charged on land, but to recover damages from a third person because the mortgagor did not pay. But where the surety joins in the covenant in the mortgage deed, it is possible that the remedy against him is barred with the remedies against the mortgagor and the land : see Rr Frishj (1889), 43 C. D. 106, C. A., and note the divergent opinions of Cotton and Bowen, L.JJ. ^,. , The doctrine of Sutton v. Sutton Uiipra) is based upon the tnu-tacbt express language of sect. 8 of the II. P. L. A., 1874. The ;;';;;'i:"'^ °" /^' 158 MONEY CHARGED OX LAXD, JUDGMENTS, LEGACIES. [CHAr. II. limitation of that section is upon all actions to recover mone}' charged upon land, and hence it applies to an action upon a covenant for payment of money so charged, and it reduces to twelve years the period of t^Yenty years which would otherwise be allowed on the covenant. But when a simple contract debt is charged on land, the limitation on the personal remedy is six years under the Limitation Act, 1G23, and this is not extended to the twelve years of sect. 8 in analogy to Sutton v. Sutton , Barnes v. Glenton, [1899] 1 Q. B. 885, C. A. Nor is the remedy against the land reduced to six years. The two remedies have different ^periods of limitation, and the remedy against the land is subject to the twelve years' bar under sect. 8 : lie Stephens (1889), 43 C. D. 39 ; London and Midland Bank, Ltd. v. Mitchell, [1899] 2 Ch. 161 ; cf. Toplis v. Baker (1789), 2 Cox, 118, 123 ; Brocklehurst v. Jessop (1835), 7 Sim. 438. Chai-o-eof Where a testator charges his debts on, or creates a trust for debts by will, their payment out of, personal estate, this does not revive debts barred at his death, nor does it stop the statute as to debts not then barred: Scott Y.Jones (1838), 4 CI. & F. 382; Evans v. Ticeedij (1838), 1 Beav. 55 ; Cadhunj v. Smith (1869), 9 Eq. 42. And where he charges his debts on real estate, this also does not revive debts barred at his death: BriggsY. Wilson (1853), 5 D. M. & G., p. 21 ; but as regards debts not then barred, and not already charged in land, it brings them within sect. 8 of the Pi. P. L. A., 1874, and the period of limitation is twelve years. Where the debts are charged on a blended ^nd of realty and personalty, apparently only a part proportionate to the realty takes the benefit of the twelve years' period : Be Stejyliens (1889), 42 C. D. 39. And this period runs, not from the due date of ^;i^^^ the debt, but from the testator's death. The debt then for the /f^f /^ V^.first time becomes money charged on land, and a new right to / ^ ^ receive it arises. If it is a simple contract debt, it is still liable to be barred as against the personalty in six years from its due date ; if a specialty debt, the effect may be to shorten the twenty years' period already running at the testator's death, unless, indeed, the creditor elects to disclaim the charge, and rely on his personal remedy alone. Direction to A. direction in the will to pay specified debts has the effect pay specified q^ reviving statute-barrcd debts, as debts, and not as legacies, so that the executors of a creditor dying in the lifetime of the testator are entitled to the benefit of the direction : JViUiamson CHAP. II.] SUiMS OF MOXEY CHARGED UPON LAND OR RENT. 159 V. Naylor (1838), 3 Y. & C. Ex. 208; Clinton v. Bivphij (1847), 10 Ir. Eq. R 139. (3) Date from ichich the Statute runs. Sect. 8 of the E. P. L. A., 1874, provides that no action shall "Present be brought to recover money charged on land, "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 : " see Farran v. Beresford (1843), 10 CI. and F. 319. Thus the statute runs from the time when there is a present right to receive the sum. In Dillon v. Cruise (1840), 3 Ir. Eq. R., p. 81, it was suggested that the present right to receive would not be deemed to accrue if there were no effectual means of enforcing it; but the section is not thus restricted. It is enough that there is a present right to receive money charged on land, though the time for enforcing the charge has not arrived : Hornsey Local Board v. Monarch Buildinq Society (1889), 24 Q. B. D. 1, C. A. In that case a local authority had, upon the default of the Hormey L. B. frontage owners, executed paving works under the Public Health SiSinr^' Act, 1848. By sect. 69 the expenses became a charge upon the Society.' premises fronting the street immediately on completion (see now sect. 257 of the Pubhc Health Act, 1875) — namely, in 1875 — but no apportionment was made till 1885, and the charge was not capable of being enforced till the latter year. Nevertheless it was held that a present right to receive the expenses accrued to the local authority immediately on completion, and the charge was barred, therefore, in 1887. " The section," said Lindley, L.J., "is dealing with charges on land, and it must be borne in mind that such charges are present charges and future charges, reversionary charges, charges in remainder, and such- like. One general form of expression is used to include the whole, and that expression is ' present right to receive.' It seems to me clear that the meaning is that in each case the moment to be looked to is the moment when the charge comes into present operation ; for instance, when reversionary charges are being dealt with, the moment to be looked to is the moment when the reversion falls in and the charge takes effect in possession." 160 MONEY CHARGED ON LAND, JUDGMENTS, LEGACIES. [CHAP. IL Vendor's lien. Where purchase -money of land is secured by a lien upon the land, the right to receive the money accrues in general on the day fixed for completion, unless a title has not then been made out; in such case the right accrues upon the title being established : Toft v. Stevenson (1854), 5 D. M. & G. 735. ^^"t"J^' As stated in the passage just quoted from the judgment of Lindlej^ LJ., in Ilornscij Local Board v. Monarch Building Societi/ {supra), where a charge is future, the statute does not run against it till it falls into possession ; where, for instance, a sum of money is to be raised out of land on the death of a specified person : Be Jlartleij, [1900] 1 Ch, 152. And similarly as to a future interest in an existing charge. During a life tenancy of the charge, no present right to receive accrues to the person entitled in remainder : Burroiccs v. Gore (1856), 6 H. L. C, p. 955. "Where a remainderman has a lien on the preceding life estate for interest paid out of corpus, he has no present right to receive the amount during the currency of the life estate, for, if the sum were raised, the tenant for life would be entitled to the income of it : Kirican v. Kennedy (1869), Jr. E. 3 Eq. 472. But where a mortgage debt is secured by a present charge on land, the "right to receive " is not postponed by the fact that the covenant for payment stipulates that notice shall be given : Herveij v. Wi/nn (1905), 22 T. L. E. 93. Present debt A sum of money presently due may be secured bv a charo-e clin.r*^ecL on •^ ^ •/ o future upon a future interest in land, and then the right to the real hfland security may remain, although the personal remedy is barred. This depends on whether the charge is in such a form as to- entitle the creditor, upon the interest falHng into possession, to- recover the land itself, or whether it only entitles him to have his charge raised by sale. Where the mortgage is by con- veyance of the future interest, whether legal or equitable, or where it is equitable and contains an agreement, express or implied, to convey the legal estate, the mortgagee's remedy is by foreclosure, and is within sect. 1 of the E. P. L. A., 1874, and not sect. 8. Hence the statute does not run against this remedy till the interest falls into possession (sect. 3 of Act of 1833 ; sect. 2 of Act of 1874), though the personal remedy for the mort- gage debt may be barred : Hugill v. Wilkinson (1888), 38 C. D.480 ; Be Conlan (1892), 29 L. E. Jr. 199 ; Kirldand v. Peatficld, [1903]; f. 1 K. B. 756 ; see Be Lake's Trusts (1890), 63 L. T. 416 ; sujmi, p. 87. But if the remedy is by sale only, as where a charge CHAP. II. j SUMS OF MONEY CHARGED UPON LAND OPv RENT. IGl on a future interest in land is created by will, the effect is different. The remedy is now within sect. 8, and as soon as the ■charge is payable, there is a right to have the future interest sold and to receive the money. The statute runs, therefore, so soon as the charge is payable : lie Oicen, [1894] 3 Ch. 220; see .Shea V. Moore, [1894] 1 I. R. 158, C. A. For the statute to run it is further necessary that there Person ehould be a person capable of giving a discharge : see jje?- gi^fn^^ *^ Lindley, L.J., in Hornsey Local Board v. Monarch Buiiding discharge. Society (1889), 24 Q. B. D. p. 10, C. A. The effect is to save the right of an infant, if no person is able to give a receipt for him ; Piggott V. Jefferson (1841), 12 Sim. 2G. But if the infant dies and administration is taken out to his estate, the right of the administrator accrues, under sect. 6 of the Act of 1833, on the death : Re Bonsor eC- Smith's Contract (1884), 34 C. D. 560, note ; //. O'BeiUy v. Walsh (1872), 6 Ir. E. Eq. 555, p. 566 ; 7 ibid., 167, where the question whether sect. 6 applied to sect. 40 of the Act of 1833 was raised but not decided. Where a charge is vested in trustees who cannot give a discharge, the above requirement may operate to save the rights of beneficiaries in remainder : McCarthy v. Daunt (1848), 11 Ir. Eq. E. 29 ; Carroll v. Hargravc (1870), Ir. E. 5 Eq. 123, 548, C. A. But not where the trustees have power to call in the mortgage and give a receipt (Barcroft. V. Marphy, [1896] 1 I. E. 590), as would usually be the case now having regard to the general power of giving receipts conferred on trustees by the Trustee Act, 1893, s. 20. (4) Money Secured hy Express Trust. Previously to the E. P. L. A., 1833, a trust for the payment Trust for •of debts out of real estate prevented the bar of the statute as to fltbtsT'tbJ'mer such estate : Scott v. Jones (1838), 4 CI. & F. p. 396. Under the law. Act of 1833 it was at first held that sect. 40 was not affected by sect. 25, and consequently a debt secured by a trust for payment {Young v. Wilton (1846), 10 Ir. Eq. E. 10), or a debt or legacy -charged on land (Knox v. Kelly (1844), 6 Ir. Eq. E. 279), was not saved on the ground of express trust ; cf. Dillon v. Cruise (1840), ■3 Ir. Eq. E. 70. Subsequently it came to be admitted that both sect. 40 and sect. 42 were subject to sect. 25 ; and debts, legacies, and portions were saved by an express trust (Cunningham. V. Foot (1878), 3 App. Cas. 974), as where a term was vested in trustees upon trust to raise specific sums : Young v. Lord T.L.A. M 1G2 MONEY CHARGED ON LAND, JUDGMENTS, LEGACIES. [CHAP. IL Express trust does not save statute. K. P. L. A., 1874, s. 10. Time for recovery of money clmrged on land not extended by express trust. Wata-imvh (1842), 13 Sim. 199; Co.c v. Dolman (1852), 2 D. M. & G. 592 ; Uuciori v. Ford (1866), 2 Eq. 97 ; or where land was conveyed on trust to raise portions: Blair v. Nnf/cnt (1846), 9 Ir. Eq. R. 400 ; or where the land charged was devised in trust: Hunt v. Batcman (1848), 10 Ir. Eq. E. 360; Watson V. Sard (1859), 1 Giff. 188. In the last case the express trust was held to affect the charge also. But for this purpose a devise in trust was essential. A general charge of debts on real estate did not create an express trust for their i)ayment if the devisee subject to the charge took beneficially : Francis v. C^ rouer (1845), 5 Hare, 39 ; Dundas v. Blake (1848), 11 Ir. Eq. E. 138 ; Proud v. Proud (1862), 32 Beav. 234 ; even though the charge was to be raised by executors : Jacquet v. Jacquet (1859), 27 Beav. 332; Dickenson v. Teesdale (1862), 1 D. J. & S. 52. A devise in trust for the payment of debts did not revive debts which were already barred at the time of the testator's death : Fergus v. Gore (1803), 1 Sch. & Lef. 107 ; Burke v. Jones (1813), 2 V. & B. 275; Hargreaves v. Michcll (1822), 6 Madd. 326; O'Coimor V. Haslam (1855), 5 H. L. C. 170. But it is now provided that an express trust shall not save the statute either (1) as to sums of money or legacies charged upon or payable out of land, or (2) as to arrears of rent or of interest in respect of any such sum of money or legacy : — " 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 such trust." Consequently the period of limitation is now the same whether land is charged with debts or is devised on trust to pay them : supra, p. 158. A conveyance of land to trustees for a term of years upon trust to raise a specific sum is an express trust within the meaning of the section : Fie Hartley, [1900] 1 Ch. 152. And where the trusts are to raise different sums at different times and one is barred, the entry of the trustees to raise a subsequent sum does not enable them to retain the land to raise the barred sum : S. C. CHAP. II.] SUMS OF M9XEY CHARGED UPON LAND OR RENT. 163 The section does not apply in the case of an annuit}^ charged Annuity, on land. The annuity is a rent-charge within the E. P. L. A., 1874, s. 1 ; not a sum of money or series of sums of money charged on land within the E. P. L. A., 1874, s. 8 : supra, p. 28 ; and the title to recover the annuity as such can be kept alive by an express trust. But since arrears of the annuity are only recoverable as if there were no trust, then, after the lapse of the twelve years, no arrears are recoverable at all, since, in the absence of a trust, the annuity itself would have been extinguished. This was the result arrived at by Kay, J., in Iliifjhcs v. Coles (1884), 27 C. D. 231, though in an unsatisfactory manner : see Dower v. Doicer (1885), 15 L. E. Ir. p. 275; Ihudy v. Carroll, [1907] 1 I. E. 166. He appear to have first treated the annuity as a series of sums, subject as to past instalments to sects. 8 and 10, and con- sequently barred ; but still in existence as to future instal- ments ; and then, for the purpose of further barring arrears, to have treated it as a rent within sect. 1. This is needless and confusing. The matter is determined clearly and easily by treating the annuity as a rent throughout. The trust saves the annuity as a rent, but, by the express words of sect. 10, it does not save arrears, which are therefore gone as soon as the annuity would, as a rent and apart from any trust, be extinguished. (5) Death Duties. Succession duty is a first charge on the interest of the sue- Death duties, cessor, and of all persons claiming in his right, in all the real property in respect whereof such duty is assessed: Succ. Duty Act, 1853 (16 & 17 Vict. c. 51), s. 42 ; and, apart from special limitation, time would be no bar to the enforcement of the charge by the Crown. But a limitation in favour of purchasers for valuable consideration — including trustees of a marriage settlement : see lie Donclan's Estate, [1902] 1 I. E. 109, C. A. — and mortgagees, was introduced by the Customs and Inland Eev. Act, 1889 (52 Vict. c. 7), s. 12. As against such persons real property, or any estate or interest therein, is not to remain charged with or liable to pay succession duty after the expira- tion of six years from the date of notice to the Inland Eevenue Commissioners of the fact giving rise to the claim for dut^y, or from the date of the first payment of any instalment or part of 1G4 MONEY CHARGED ON LAND, JUDGMENTS, LEGACIES. [CHAP. IL duty (a), or, in the absence of such notice or payment, after the expiration of twelve years from the happening of the event which gave rise to the claim for duty. This limitation also applies, in favour of the same persons, to claims for estate duty charged on land ss. 8 (2), 9 (1). Finance Act, 1894 (57 & 58 Vict. c. 30), Judgments formerly u potential charge on lauds. And sect. 40 of R. P. L. A.. 1833, barred all judgments. Sect. 8 of R. P. L. A., 1874, also bars all judgments. Section IL — Judgments. (1) All Judgments liable to he harred. Sect. 8 of the K. P. L. A., 1874, bars any action to recover a sum of money " secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land," and the words in sect. 40 of the Act of 1833 were the same. The word "otherwise" seems to show, as was pointed out by Lord St. Leonards in Ilcnnj v. Smith (1842), 2 Dr. & War., p. 388, that all the sums of money to which the section refers must be in some way charged upon or payable out of land or rent ; and since in 1833 all judgments were potentially charged on any land which the debtor might have, the introduction of judgments into the section was not altogether inconsistent with this construction. The lands were at all times subject to the creditor's right to enforce his judgment by elegit, notwithstand- ing sale or mortgage, subject only to the protection afforded to purchasers without notice by the Docket Acts: see Henry v. Smith {supra); Anglo-Italian Bank v. Davies (1878), 9 C. D., p. 284, C. A. ; Elphinstone and Clark on Searches, p. 15. The position of "judgment" in sect. 40 being thus ex- plained, it was considered that the intention of the statute was to bar judgments generally, irrespective of their being really charged on land, and the section operated to bar the remedy against the personal estate of the debtor without inquiry whether he had any real estate or not : Watson v. Bireh (1847), 15 Sim. 523 ; see Sugden's Eeal Property Statutes, p. 127 ; (yHara v. Creagh (1841), 3 Ir. Eq. E. 179. By subsequent legislation the effect of judgments in creating a charge on land has been altered. By the Judgments Act, 1804 (27 & 28 Vict. c. 112), a judgment did not constitute a (a) Sec further, for the case of payment, the alternative period mentioned in the section. CHAP. II.] JUDGMENTS. 165 charge on the land until the land was delivered in execution ; and by the Land Charges, etc., Act, 1888 (51 & 52 Vict. c. 51), a judgment is not a charge until a writ of execution or an order for a receiver has been registered. But these changes have not affected the construction of the K. P. L. Acts, and it was held by the Court of Appeal in Jay v. Johnstone, [1893] 1 Q. B.- 189, that the Legislature, in repeating in sect. 8 of the Act of 1874 the words of sect. 40 of the Act of 1833, must be taken to have intended to repeat them with their old meaning. Hence sect. 8 operates, just as formerly sect. 40 operated, as a bar to all judgments alike : cf. Ex imrte Tynfe (1880), 15 C. D. 125 ; Hehhletlavaltc v. Peevor, [1892] 1 Q. B. 121. In Ireland the course of legislation has been diferent, and Limitation on judgments were at one time classed with specialty de'its for the irdlnd." purpose of limitation. The Civil Procedure Act, 1833 (3 & 4 Will. 4, c. 42), did not apply to that country ; but sect. 32 of 3 & 4 Vict. c. 105 (known as Pigot's Act), imposed on actions on specialties the same limitation as that imposed by sect. 3 of c. 42. Sect. 32 did not extend to judgments, but the same statute, by sect. 22, made judgment debts a direct equitable charge on the judgment debtor's lands, and, by sect. 26, made them carry interest, and the Judgment Mortgage (Ireland) Act, 1850 (13 & 14 Vict. c. 29), by sect. 7, enabled the creditor, by fihng the prescribed afiidavit, to give his judgment the effect of a legal mortgage. Thus it was easy to bring judgments within sect. 40 of the E. P. L. A., 1833, as being charged on land. But the Irish Common Law Procedure Act, 1853 (16 & 17 Vict. c. 113), repealed sect. 32 of Pigot's Act, and by sect. 20 reproduced sect. 3 of 3 & 4 Will. 4, c. 42, including, how- ^-.... —T-raents with specialty debts. Hence, upon the pf- Hunter v. Nockolds (1850), 1 Mac. & G. 640 (supra, p. assuming it to be applicable (see Be Fitzgerald, [1897] 1 J., j-i. 556, p. 568), the remedy on the judgment against the land was now barred by sect. 40 of the E. P. L. A., 1833, and the remedy against the debtor's personal estate was barred by sect. 20 of the Ir. C. L. P. A, 1853 : Breslin v. ITodgens (1876), Ir. E. 10 Eq. 260. The question became important when the limitation of sect. 40 was reduced to twelve years by sect. 8 of the Act of 1874, but it was decided, in accordance with Sutton v. Sutton (1882), 22 C. D. 511, C. A., that sect. 8, in effect, repealed sect. 20 of the Act of 1853, so far as regards judgments, and 166 MONEY CHAEGED ON LAND, JUDGMENTS, LEGAdES. [CHAr. 11. that the twelve years' limitation of sect. 8 applies to all remedies on the judgment, real and personal, alike ; moreover, the section is not affected by the statutory changes which have taken place with regard to the effect of judgments in creating a charge on land, and sect. 8 now bars all remedies on all judgments in Ireland as well as in England : Evans v. O'Donnell (1886), 18 L. E. Ir. 170, C. A. ; Shenrood v. Hannaii (1886), 17 L. E. Ir. 270, C. A.; cf., as to decrees in equity, Dunne v. Doijle (1860), 10 Ir. Ch. E. 502 ; and see definition of judgment in sect. 100 of the Judicature Act, 1873. Judgment on post obit bonds. Judgment registered as mortgage in Ireland. Revivor of judgment. (2) Date from u-lticli the Statute runs. Prima facie the statute runs against a judgment from its date, but where it is entered up as a security, evidence is admissible to show when the right to receive the sum secured really accrues. Hence time does not run against a judgment entered on a 2^ost obit bond until the occurrence of the death on which the bond is payable : Barber v. Sliorc (1839), 1 Jebb. & S. 610 ; Tuckeij v. Hau-Jcins (1847), 4 C. B. 655 ; Oilman v. Chute (1847), 11 Ir. L. E. 442 ; Kennedy v. Whalcy (1848), 12 Ir. L. E. 54. The registration of a judgment in Ireland as a judgment mortgage against the lands of the judgment debtor under sect. 7 of the Judgment Mortgage (Ireland) Act, 1850 (13 & 14 Vict. c. 29), does not give a fresh right to receive the money secured by the mortgage, and the statute still runs from the date of the judgment : Johnson v. Loicri/, [1900] 1 I. E. 316, C. A. Sect. 8 of the E. P. L. A., 1874, repeating the language of sect. 40 of the Act of 1833, speaks of the time when the right to receive accrues; not like sect. 1, of the time when it first accrues : Ryan v. Cambie (1840), 2 Ir. Eq. E. p. 334 ; and hence, if a fresh right accrues in respect of the same debt, this will give a new starting-point for the statute. Under the old procedure for revivin-^ judgments, a new right to receive a judgment debt accrued upon a revivor of the original judgment by sci. fa. or writ of revivor: Farran v. Beresford (1843), 10 CL & F. 319; Farrell v. Gleeson (1844), 11 CI. & F. 702; Conlan v. Bodhin (1845), 7 Ir. L. E. 467 ; Be Blake (1853), 2 Ir. Ch. E. 643 ; or upon a fresh judgment being obtained in an action on the original judgment : Walters v. Lidn-ill (1847), 9 Ir. CHAP. II.] LEGACIES AND INTESTATES' ESTATES. 107 L. Pk,. 362. But proceedings could not be taken to revive a judgment after the lapse of twenty years : Dunne v. Doj/le (1860), 10 Ir. Cii. R. 50-2 ; rf. Johnson v. Bdl (1856), 6 Ir. C. L. R 526 ; unless the right to receive had been kept alive by payment or otherwise : Williams v. Welch (1846), 3 Dowl. & L. 565. And the new right arising upon revivor of a judgment was only operative against parties or privies to the revivor : Kirlcwood v. Lloijd (1849), 12 Ir. Eq. E. 585 ; cf. lie Bodkin (1860), 12 Ir. Ch. E. 61. An action can still be brought upon the original judgment Present at any time within twelve years, though such a course is cxtencUn^ ^^ anusual, save in the case of a foreign judgment ; but the judgment, procedure by set. fa. or writ of revivor has been abolished, and its place is now taken by E. S. C, 1883, Ord. 42, rr. 22, 23. As between the original parties to the judgment, execution may issue at any time within six years from the recovery of the judgment (r. 22). But where the six years have elapsed, leave to issue execution must be obtained. This leave cannot be given after the twelve years limited by the statute have expired : Jay V. Johnstone, [1893] 1 Q. B. 189, C. A. ; Evans v. CfDonneU (1885), 16 L. E. Ir. p. 452 ; 18 L. E. Ir. 170, C. A. ; and where it is given, it probably does not create a fresh right to receive so as to exclude the statute as under the former writ of revivor : cf. Evans v. O'DonneU, 16 L. E. Ir. p. 452. Where a debt is secured by a mortgage of a reversionary Eeversionary interest in personal estate, and judgment is obtained on the •debt, the mortgagee is entitled to recover the personal estate on its falling into possession, notwithstanding that the judgment is then barred : lie Lake's Trust (1890), 63 L. T. 416. Section III. — Legacies and Intestates' Estates. (1) Legacies and Shares of llesidue. Notwithstanding certain doubts which have been suggested Limitation as to the intention of the Legislature in introducing legacies J^pp^^?'* *« "^^ lG'*'fl.C ICS into sect. 40 of the Act of 1833 {Coope v. Cresswell (1866), 2 Eq., ° p. 116; Phillippo v. Munninf/s (1837), 2 i\[y. & Cr., p. 315, note), the position of the word shows with sufiicient clearness that it is used generally ; and it has long been settled that the statute applies equally whether the legacy is payable out of real or interest. 168 MOXFA' CIIAEGED CN LAND, JUDGMENTS, LEGACIES. [CHAr. IL Annuity. Share of residue. personal estate : Shepherd v. Bul:e (1839), 9 Sim. 567 ; Bulloch w Downes (1860), 9 H. L. C, p. 14. Sect. 8 of the Act of 1874 merel}^ reproduces in this respect sect. 40 of the Act of 1833. If the legacy is charged on land, it is not saved by an express trust ; but, otherwise, an express trust will save the legacy if the executor has ceased to hold it as executor and has become a trustee : infra, p. 172. Where there is no trust, an action for administration to recover the legacy is barred in twelve years t Eussell V. Croidcij, [1907] 1 I. E. 275. Sect. 43 of the Act of 1833 applied the bar to suits or other proceedings to recover a legacy in any spiritual court, but such proceedings are not now possible : Court of Probate Act, 1857 (20 & 21 Vict. c. 77), ss. 3, 23. An annuity given by will is, in general, regarded as a legacy z D. of Bolton \. Williams (1781), 2 Yes. J., p. 216; Sihleij v. Pernj (1802), 7 Yes., p. 533; Be AshwelVs Will (1859), Johns. 112; Dower \. Dower (1885), 15 L. K. Jr. 264; though for the purpose of a particular will it may be necessary to construe the word "legacy " so as not to include annuities : Cornfield v. Wynd- ham (1845), 2 Coll. 184. But sect. 8, which bars the right to recover particular sums of money, is not fitted to bar the right to the annuity as a whole. If it is charged on land, it is liable to be barred as " rent," and the title extinguished : supra, p. 28'. But where it is not so charged, there is no bar to the annuity itself, and sect. 8 only bars the right to recover each instalment more than twelve years after it has fallen due : Dower v. Dower (1885), 15 L. K. Ir. 264. The arrears are not subject to the six years' limitation of sect. 42 of the Act of 1833 : Boch v. Callen (1847), 6 Hare, 531. Thus the annuity is recoverable at any time with twelve years' arrears. Similarl}^ where an annuity is subject to the Limitation Act, 1623, six years' arrears are recoverable at any time : Edivards v. Warden (1874), 9 Ch. 495. In this last case it was held in the House of Lords (1 App. Cas. 281) that there was an express trust which excluded the statute. A residue or a share of residue given by will is, in effect, a legacy, and the residuary legatee cannot recover it against the executor after the lapse of twelve years from the time when he had a present right to receive it : Prior v. Hnrnihloio (1836), 2 Y. & C. Ex. 200; Christian y. Devereux (1841), 12 Sim. 264; Adams v. Barry (1845), 2 Coll. p. 290 ; Downes v. Bullock (1858), CHAr. II.] LEGACIES AND INTESTATES' ESTATES. 169 25 Beav. 54, at p. Gl ; that is, in general, from the end of a year after the testator's death : infra, p. 170. Where the person liable to pay the legac}- is also the person suspension of entitled to receive it, the statute does not run : Binns v. XlchoU statute. (1866), 2 Eq. 256 ; Re Pardoe, [1906] 1 Ch. 265 ; cf. supra, p. 87. Lapse of time is no bar to the right of an executor to have his accounts taken: Smith v. (JGrady (1870), L. E. 3 P. C. 311. (2) Personal Estate of Intestates. A similar limitation with regard to the personal estate of an intestate was introduced by sect. 13 of the Law of Property Amendment Act, 1860 (23 & 24 Vict. c. 38), which, after reciting sect. 40 of the Pv. P. L. A., 1833, enacts as follows ; — " No suit or other proceeding shall be brought to recover the 23 & 24 personal estate, or any share of the personal estate, of any person ^ ^^\- '^^ '''^' dying intestate, possessed by the legal personal representative of ,t^ ' , . '.,. ox- r Twenty rears' such intestate, but withm twenty years next after a present right limitation for to receive the same shall have accrued to some person capable of P^^'sonal giving a discharge for or release of the same." intestate. There follows a saving for part payment or acknowledgment, as to which see Chap. VIL The limitation of this section still remains at twenty years, Eftect of there having been no reduction to twelve years corresponding to ^^'^^"^®- that made in the case of legacies by sect. 8 of the Pi. P. L. A., 1874. The effect of the statute in favour of an administrator is not avoided by a revocation of the letters of administration : Willis V. Eaii Beauchamp (1886), 11 P. D. 59, C. A. It was held that the Act was retrospective, and applied to claims made in respect of the estates of intestates who died before December 31, 1860, when the Act came into operation : Willis v. Earl Hour (1880), 29 W. E. 70 ; Be Johnson, Sly v. Blake (1885), 29 C. D. 964. The statute operates to bar claims by the Crown to personal estate of an intestate in the same manner as claims of an individual : Litestates' Estates Act, 1884 (47 & 48 Vict. c. 71), s. 3. Where a person dies leaving a will, but in the result his Partial property or some part of it is undisposed of, the executor is, by '"^°'''^'^*'>- virtue of the Executors Act, 1830 (11 Geo. 4 and 1 Will. 4, c. 40), to be deemed to be a trustee of the undisposed of residue for the next-of-kin. But this docs not make him an express trustee, 170 MONEY CHARGED ON LAND, JUDGMENTS, LEGACIES. [CHAP. IL and he is entitled to the benefit of the statute : lie Lacij, [1899] 2 Ch. 149. Present right to receive legacy, etc. Be Pardoe. (3) Date from tvhich the Statute runs. The right to receive a legacy arises at the end of twelve months from the testator's death {IJ^ood v. Pcnoyrc (1807), 13 Ves. 333), and from such time therefore the statute runs : Earle v. Bellingham (1857), 24 Beav. 448. And, in the absence of special circumstances, the same rule holds as to a share of residue (see Briwk v. Lewis (1822), 6 Madd. 358), or a share of an intestate's estate : Re Johnson, Sltj v. Blake (1885), 29 C. D. 964, p. 970. But in Ireland it has been held that the statute runs from the death : Waddell v. Harsliaw, [1905] 1 I. E. 416, C. A. It was held in Uc Pardoe, [1906] 1 Ch. 265, that a present right to receive personal estate of an intestate does not accrue to a person capable of giving a discharge for the same within sect. 13 of the Law of Property Amendment Act, 1860, unless such person is in a position to recover the property by an action at law. The circumstance that he might reach it by proceedings in equity does not bring the statute into operation. A., a married woman, was the administratrix of an intestate. In 1864, money of the intestate was paid to her and to her husband, B., in her right. She was beneficially entitled to one-half of it : the other half was payable to A., B., and C. as executors of D., in whose estate A. had a life interest. B. paid the money into his private banking account and never accounted for it. B. died in 1884, C. in 1886, and A. in 1903. After A.'s death an action was commenced to make B.'s estate liable for half the fund, and to this the statute was pleaded unsuccessfully. The only date suggested for the commencement of the statute was 1864, when the executors of D. were entitled to receive the money. But at that time two of them, A. and B. had received it, and the third, C, could not have brought an action at law against his co-executors to recover it. Hence the statute did not begin to run in 1864 : per Kekewich, J. But the decision, which w^as reversed on another point by the Court of Appeal, [1906] 2 Ch. 340, must be received with caution. There appears to be no ground for restricting " a present right to receive " in the manner suggested; and such restriction is inconsistent with CHAP. IT.] LEGACIES AND INTESTATES' ESTATES. 171 Honiscji Local Board v. Monarch BuUdiiuj Society (1889), 24 •Q. B. D. 1, C. A. {supra, p. 159). The statute only rims in respect of assets actually received rresent right by the executor or administrator ; it does not entitle him to [JSsetL''"^^ retain for his own benefit property which he recovers after a recovereaby lapse of thirteen years : Adams v. Barnj (1845), 2 Coll. 285 ; ^^^™ °^'" Binns y. Xicholh (18GG), 2 Eq. 256. "The enactments," said €hitty, J., in Shi v. Blahe (1885), 29 C. D. p. 971, "speak not merely of a right to receive, but emphatically of a present right to receive. The next of kin have no present right to receive from the administrator a reversionary interest belonging to the intestate before it falls into possession and is possessed by him, nor, where he is compelled to take proceedings to recover an outstanding asset, before he recovers it or obtains possession of it." The same principle applies where a legacy is payable out of Legacy out of real estate, and the real estate is not immediately available by rearesSe!^ reason of prior charges : Faulkner v. Daniel (1843), 3 Hare, p. 212 ; Bavenscroft v. Frishi/ (1844), 1 Coll. p. 22. But if the legacy is primarily payable out of personal estate, and this Or primarily has been exhausted, it lies upon the legatee, in claiming {Snai"'^ against the real estate, to show that the executor has not had estate. in his hands sufficient to satisfy him ; otherwise the legatee would have had a present right to receive so as to make the statute run; Brir/ht v. Larcher (1859), 4 De. G. & J. 608; cf. Proud V. Price (1862), 32 Beav. 234, 11 W. E. 101. Where a legacy is given to one for life, with remainder over, iMiturc no present right to receive accrues to the remainderman, and '^fJZ^t ''' the statute does not begin to run against him, till the death of legacy, the tenant for life : Prior v. llornihlow (1836), 2 Y. it C. Ex. 200 ; and similarly, where the absolute vesting in the legatee is in suspense during his life, time does not run till his death : Bord V. Lord (1857), 3 Jur. N. S. 485. Where a legacy is to be paid out of a reversionary fund, or Future is to be paid upon the death of a specified person or other event, Y°^^^' although the right to the legacy is vested, the right to receive \ it does not arise, and the statute does not run, till the fund falls into possession {Be Lndlam (1890), 63 L. T. 330), or till the death (Karle v. Belli ngham (1857), 24 Beav. 448), or happening of the event: Biidd y. Budd, [1895] 1 I. R. 15, C. A. In I'oidd V. Piidd a legacy was to be paid when rf([uircd by the 172 MONEY CHARGED OX LAND, JUDGMENTS, LEGACIES. [CHAP. IL Mortgage (jf future interest. Executor becoming trustee. , r ' legatee to advance her in life, and the statute did not run till the legacy was thus required. But where the tenant for life and remaindermen concur in an arrangement under which the tenant for life receives a lump sum, and the estate is to be at once divisible among the re- maindermen, a present right to receive accrues to them, and the statute runs : BuHsdl v. Croidey, [1907] 1 I. E. 275, C. A. Where a future interest in a legacy is assigned by way of mortgage, the mortgagee is entitled to receive it when it falls into possession, although his right to recover the mortgage debt from the mortgagor personally may then be barred : Sear/er v. Alston (1857), 2G L. J. Ch. 809; cf. Re Lake's Trusts (1890), 6B L. T. 416. Where an executor has had assets to pay a legacy, and the statute has run in his favour, a charge of debts contained in his will does not create any fresh right in the legatee : Piggot v. Jefferson (1811), 12 Sim. 2G ; ef. Ilarcourt v. White (1860), 28 Beav. p. 309. If the statute is running against a legatee, it is not suspended by the lunacy of the executor : Boldero v. Halpin (1870), 19 W. K. 320. (1) Legaeies held in Trust. The limitations in respect of legacies and shares of intestates' estates operate in favour of legal personal representatives gener- ally, as well in respect of assets retained as of assets distributed : lie Johnson, Sljj v. Blake (1885), 29 C. D., p. 973 ; Be Davis, Evans v. Moore, [1891] 3 Ch. 119, C. A. ; though an opposite opinion was expressed in Beed v. Fenn (1866), 14 W. R. 704. An executor is not an express trustee : Be Lacji, [1899] 2 Ch. 149 ; nor is an executor de son tort : Doyle v. Foley, [1903] 2 I. E. 95. Where, however, the same person is named in a will as executor and as trustee of a legacy, then as soon as he has assented to the legacy as executor, and has set apart a sum of money to answer it, he holds in his character of trustee, and time does not run against the eestid que trust; Phillipo y. Mannings (1837), 2 M. & Cr. 309 ; ef. Harcourt v. White (1860), 28 Beav. p. 309 ; Dahj V. Kinran (1839), 1 Ir. Eq. E. 156 ; Dix v. Burford (1854), 19 Beav. 409. And the same result follows where his duties as an executor are at an end, and the legacy or residue is, in effect, held simply upon the trusts of the will : Be Tinunis, [1902] 1 Ch. 176. €11 Ar. II.] LEGACIES AND INTESTATES' ESTATES. 173 But an executor does not become trustee of a legacy merely in consequence of the debts being paid and the clear residue iiscertained. There must be an express trust created either by the will: Cadhun/ v. Smith (18G9), 9 Eq. 37; Ec Barker, [1892] 2 Ch. 491 ; or by the executor's actual declaration that he holds as trustee: Tyson v. Jachson (1861), 30 Beav. 384; Re liOice, Jacobs v. Hind (1889), 60 L. T., p. 599. Perhaps, also, a trust may be created by the fact that the executor holds for an infant, and has special duties to perform in regard to his share : O'lleilly v. Widsli (1872), G Jr. Eep. Eq. ^^o ; 7 ihid. 167 ; rf. lie Smith, Henderson-Eowc v. Hifchens (1889), 42 C. D. 302. An executor does not become an express trustee by investing and otherwise dealing with property of the beneficiaries and by defending proceedings on their behalf : lie Mackay, [1906] 1 Ch. 25. But if the executor, having become a trustee, has distributed the legacy in an erroneous manner, he can claim the benefit of the Trustee Act, 1888, s. 8 ; and none the less that, in the distribution, he has taken a share to which he was properly entitled : lie Ti))i)nis (su2)i-a). Where the money representing a legacy has not been Trust legacies actually raised, but is charged on land and secured by an J./,^(i? express trust, the trust does not prevent the operation of the statute, and it is recoverable only within the same period as if there were no trust : Pi. P. L. A., 1874, s. 10 (^upra, p. 162). And since an annuity given by will is a legac}', it maybe that, if it is charged on land, an express trust will save neither the title to the annuity, nor the arrears. The question was raised, but not decided, in Hanly v. Carroll, [1907] 1 I. Pi. 166. It would seem, however, that such an annuity is on the same footing as an annuity created by deed, and the title to the annuity itself can be saved by an express trust, though not the right to recover arrears: supra, p. 163. Sect. 10 does not apply to charged ou legacies or annuities charged only on personal property (other than leaseholds), and these are saved by an express trust : cf. Playfair v. Cooper (1853), 17 Beav. 187; Hartford v. P,mrr <1868), Ir. E. 2 Eq. 204; but not by an implied trust: Hcndn-son v. Atlci^is (1859), 28 L. J. Ch. 913. Where the fund out of which a legacy is payable is paid into T..gucy out of ,.11 ii i. i.1 limdB HI Court to an account the title of which shows that the persons court. claiming as legatees are interested, the statute docs not run against them : Re Walker (1871), 7 Ch. 120. CHAPTER III. ARREARS OF DOWER, OF RENT, AND OF INTEREST. Six years ^ LIMITATION of SIX years is placed on the recovery of arrears of dower, of rent, and of interest on sums of money charged on land, judgments, and legacies ; that is, on the moneys referred to in sect. 8 of the R. P. L. A., 1874 :— K. P. 1j. a., h ]^q arrears of dower, nor any damages on account of such ISiii) s. 41. . . Arrears of arrears, shall be recovered or obtained by any action or suit for a 'lower. longer period than six years next before the commencement of such action or suit. Sect. 42. " No ai'rears of rent or of interest in respect of any sum of renraml'^ money charged upon or payable out of any land or rent, or iii interest. 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 j^ayable, or his agent." There follows a proviso in respect of the case where a prior incumbrancer is in possession {infra, p. 179). Section I. — Arrears of Dower. Dower. By the Statute of Merton, c. 1 (20 Hen. 3, repealed as to c. 1 by the Stat. Law Rev. Act, 1881, 44 & 45 Vict. c. 59) widows deforced of their dowers, who were driven to recover them by writ of dower, were allowed to recover also as damages the value of the whole dower from the time of the death of the husband until judgment for the recovery of seisin of dower. But a widow was only entitled to dower out of lands of which her husband had died seised, either in deed or in law, for an estate of inheritance : Litt. 36, Co. Litt. 31«, 32,'^ ; Curti.^ v. Curtis (1789), CHAP. III.] AEREARS OF RENT. 175 2 Bro. C. C. at p. 630 ; and hence, to entitle a widow to damages for dower, it was formerly necessary to allege and prove that the husband died seised for such an estate : Jones v. Jones (1832), 2 Cr. & J. 601. Now, by the Dower Act, 1833, sects. 2 and 3, the widow is entitled to dower out of equitable estates of inheritance, and, as to legal estates, seisin at the time of death is not necessary. The widow has her dower although the husband had merely a right of entry or right of action. Before pro- ceeding for dower a demand must be made, but no special formalities are required : Watson v. Watson (1850), 10 C. B. 3. Formerly there was no time of limitation for arrears of dower either at law or in equity : Oliver v. Ilichardson (1803), 9 Ves. 222. The present restriction to a period of six years before the commencement of the action was applied in Bamford v. Bauiford (1845), 5 Hare, 203. Section XL — Arrears of Kent. Sect. 42 of the Act of 1833 limits the recovery of rent to six Limitation years' arrears. At first there was a tendency to restrict the ''^rpjie^to •^ ^ _ -^ reiit-cnargcs section to rents in the nature of rent-charges, as in the case of iuid rents'ou sect. 2 of the same Act(now sect. 1 of the Act of 1874): see_^;^'r ^'^^^^' Tindal, C J., in Paciet v. Foley (1836), 2 Bing. N. C. p. 688 ; Ex 2xirte Warharton (1847), 10 Ir. Eq. 11. 206. But the considera- tions which determined the construction of sect. 2 do not apply here, and, in accordance with the definition of "rent " in sect. 1 {supra, p. 21), the six years' limit applies both to rent-charges {Humfreif v. Gery (1849), 7 C. B. 567), and to rents reserved on leases : Archhold v. Scully (1861), 9 H. L. C. p. 375 ; Bnien v. Nowlan (1837), 1 Jebb & Sym. 346, note ; Hughes v. Kelly (1843), 3 Dr. & War. p. 492. In the case of holdings within the Aiiricuiturai Agricultural Holdings Act, 1908 (8 Ed. 7, c. 28), only one ^oi^^i"Ss. year's arrears can be recovered by distress : sect. 28. Tithe rent-charge is " rent " within sect. 1 of the R. P. L. A., Tithe rent 1833 {supra, p. 27), and, apart from special legislation, six ^^^'^^'S^- years' arrears would be recoverable : Ecclesiastical Comiuissioners v. SUno (1855), 5 Ir. Ch. E. 46. But by sect. 81 of the Tithe Act, 1836 (6 & 7 Will. 4, c. 71), only two years' arrears were recoverable by distress : lie Camherwell Eent-charge (1843), 4 Q. B. 151; and a corresponding limitation is imposed by the Tithe 176 ARREARS OF DOWER, OF RENT, AND OF INTEREST. [CHAP. III. Act, 1891 (54 Yict. c. 8), which now regulates proceedings for the recovery of tithe rent-charge. Sect. 10 (2) provides that " a sum on account of tithe rent-charge shall not be recoverable under this Act unless proceedings for such recovery have been com- menced before the expiration of two years from the date at which it became payable." The rent-charge is recoverable by application to the county court as provided by sect. 2 (1). Where the occupier is not the owner, an order made by the county court is enforced by the appointment of a receiver of the rents and profits of the lands ; but if the occupier is a lessee who was liable to pay the tithe rent-charge under a contract made before the passing of the Act (26th March, 1891), the owner can recover the amount from him by distress ; and the tithe rent-charge is also recoverable by distress against an owner who is the occupier. In such cases the distress is made under sect. 81 of the Act of 1836, but, since the amount recoverable is the sum ordered to be paid by the county court, the limitation fixed by sect. 10 (2) is operative ; that is, onl}- arrears which have become due within two years before the commencement of the proceedings in the county court are recoverable. TUhe Act'*^ The Tithe Act, 1891, extends to any expenses, rent-charge, or 1891. other sums which, by any enactment in the Tithe Acts or the Extraordinary Tithe Redemption Act, 1886, are directed to be recovered as tithe rent-charge (sect. 10 (4)) : see Leach on The Tithe Acts, 5th ed. p. 165 ; and consequently to such sums the two years' limit applies. But it does not extend to tithe rent- charge issuing out of lands of a railway company (sect. 10 (11)), and the special power of distress for such tithe rent-charge, when apportioned against the railway company's lands, given by the Eailway Clauses Act, 1845 (7 & 8 Yict. c. 85), s. 22, expressly extends to " all arrears." Apparently, therefore, such arrears must be taken to be excepted from sect. 42 of the E. P. L. A., 1833, and no limitation is applicable. Annuities and Annuities charged on land fall within the definition of |ienodical sums charged "rent" in sect. 1 of the Act of 1833 {siqu'd, p. 27), and hence on and. under the present section only six years' arrears can be recovered: Francis v. Grover (1845), 5 Hare, 39; Ferguson v. Livingston (1846), 9 Ir. Eq. E. 202. And where a principal sum is charged on land, and is payable by instalments, the instal- ments are "rent," and the arrears recoverable are limited CHAr. in.] ARREARS OF RENT. 177 accordingly: Ujppunjton v. Tarrant (1861), 12 Ir. Cli. E. 262. An annuity given by will, which forms no charge on land, is not within sect. 42 : Eocli v. Callen (1848), 6 Hare, 531 ; He AshweH's Will (1859), Johns. 112 ; though the fact that it is charged on personal estate as well as on land does not save it from the bar of the section: Re Nugent's Trusts (1885), 19 L. E. Ir. 140. Sect. 42 applies only to the recovery of rents as between the Limit only person entitled to the rent and the person liable to pay. When Jf^om-^o? land is recovered by the rightful owner against an adverse person liable occupier, the profits recoverable are subject to the six years' tent^^ ^"^^ limitation on actions of trespass (infra, p. 193) ; and where title is established against a person who has been in adverse receipt of rents, the rents are recoverable in an action for money had and received, and are subject to the six years' limitation on that action (infra, p. 188). Similarly the special limit on arrears of tithe rent-charge only applies to recovery by the tithe rent-charge owner. Where the tithe rent- charge has been paid to the tithe owner under a mistake of fact, as, for instance, in respect of lands which are not in the possession of the person making the payment, the payer can recover sums so paid within six years of action, notwithstanding that the tithe rent-charge owner has lost his remedy against the person who ought to have paid: Durrant v. Ecclesiastical Com- missioners (1880), 6 Q. B. D. 234. Sect. 42 only limits the arrears of rent in proceedings Limitation brought for their recovery. It does not extinguish the title to °emedy.'' *''^ arrears beyond the six years. Hence a jointress in receipt of the rents and profits of land, who is underpaid during one tenancy, can, upon the land being relet at an increased rent, retain out of the rents all the arrears of jointure, though for a period exceeding six years : Battershy v. Rochfort (1847), 10 Ir. Eq. E, 439. And a tenant who comes to the Court for relief from forfeiture for non-payment of rent can only have it upon the terms of paying the full arrears. The ground of the relief is that the proviso for re-entry is in the nature of a security for rent : see Stirling, J., in Howard v. Fansliawe, [1895] 2 Ch. 581 ; C. L. P. A., 1852 (15 & 16 Yict. c. 76), s. 210 ; see Courtcnaij v. Parker (1864), 16 Ir. Ch. E. p. 337. But the extinguishment of title to the property which produces Extinjjuisli- the rent extinguishes also the title to recover arrears. Thus, "^''" VnLrty *"' where a title to a rent-charge is extinguished, the right to bars all T.L.A. N 178 AEREAES OF DOWER, OF RENT, AND OF INTEREST. [CHAP. IN. arrears of rent. recover any arrears is gone : Jones v. Withers (1896), 74 L. T. 572, C. A. And though an express trust will save the title to the rent as a hereditament, sect. 10 of the E. P. L. A., 1874 {suimi, p. 162), prevents it from saving the title to arrears. Hence if the rent would, in the absence of a trust, be extinguished, no arrears can be recovered: Ilur/hcs v. Coles (1884), 27 C. D. 231. And where a yearly tenant has held over for the statutory period without payment of rent, the landlord, upon his title being thus extinguished, cannot recover arrears of rent for any part of such period : Be JoUij, [1900J 2 Ch. 616, C. A. Interest on mortgage moneys and legacies. Interest on judgments. Section HI. — Arrears of Interest. (1) Interest on Mortgages, Judgments, and Ijegacies. Sect. 42 of the E. P. L. A., 1833 {supra, p. 174), imposes a six years' limitation on the recovery of arrears 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," and this limit ai^plies, therefore, in the cases of mortgages and charges on land, and of legacies whether charged on land or not. The right to share in the proceeds of real estate constitutes an interest in land, and is included under the term " land " by virtue of the definition clause (sect. 1) of the Act of 1833. Hence a sum secured by mortgage of such proceeds is within sect. 42, and arrears of interest on it are limited to six years: Bomjcr v. Woodman (1867), 3 Eq. 313. And a mortgage of a canal with the works and rates is within the section, since it gives a charge on land : Hodges V. Croydon Canal Co, (1840), 3 Beav. 86; but not a mortgage of turnpike tolls : MelUsh v. Brools (1840), 3 Beav. 22. The words "any sum of money charged upon or payable out of any land or rent," have been construed as expressing shortly the fuller category in sect. 40—" any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent at law or in equity." At the date of the Act of 1833 judgments were at least potentially a charge on land, so as to justify the extension of sect. 42 to all judgments : Kelhj v. Bodkin (1841), 3 Ir. Eq. E. 390; Henry v. Smith (1842), 2 Dr. & War. 381 ; and this construction is not varied because subsequent legislation has from time to time varied the exact mode in which satisfaction of the judgment out of land can be enforced : CHAr. III.] ARREARS OF INTEREST. 179 see Jay v. Johnstone (1893), 1 Q. B. 189, C. A. {.supra, p. 1G5). The limitation applies to statutory interest on judgments, notwith- standing that the statutes allowing interest — the Judgments Act, 1838 (1 & 2 Vict. c. 110, s. 17) ; in Ireland, 3 & 4 Vict. c. 105, s. 2G— are subsequent to the E. P. L. A., 1833 : Henry v. Smith (su2)ra). Hence interest on all judgments, whether they are actually charged on land or not, is limited to six years. The period of six years for which interest is allowed is *^i^ y^ars reckoned back from the commencement of the proceedings in he^ve^^ which it is claimed : Francis v. Grovcr (1845), 5 Hare, p. 49 ; proceedings. Hughes V. Williams (1852), 3 Mac. & G. 683. As to claims made against an estate which is being administered by the Court, vide infra, p. 316. The claim to interest depends on the right to recover the ^''J interest if principal, and is barred with it: Clarh v. Alexander (1844), "b&xilT^ 8 Scott N. li. 147 ; but the six years' limit may apply to a claim for interest, although the statute is, under the circumstances, excluded as to the principal : Re Walker (1871), 7 Ch. 120; see Thompson v. Eastwood (1877), 2 App. Cas. 215. An express trust does not now extend the time as to interest on sums of money and legacies charged on land: E. P. L. A., 1874, s. 10 {supra, p. 162) ; but it is otherwise as to legacies payable out of personal estate ; s«/;ra, p. 173. (2) Where Prior Ineumhraneer.in Possession. The limitation on the recovery of arrears of interest is Effect of excluded as regards a subsequent incumbrancer, where a prior priorTncum^ incumbrancer has been in possession ; and the subsequent '-'i'^^ncer. incumbrancer may recover arrears for the whole period of such possession, provided he brings his action within a year of its cessation : — "Provided nevertheless, that where any pv'iov mortgagee or R. 1'. I-. A., other incumbrancer shall have been in possession of any land, or ^^''': ^- ^-'■ in the receijit of the profits thereof, within one year iiext before ^""^^^^*" an action or suit shall l^e 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 incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years." 180 ARTIKAKS OF DOWER, OF RENT, AND OF INTEREST. [CHAP. III. Application of This proviso corresponds in its scope with sect. 40 (now the proviso. ^^^^ ^ ^^ ^j^^ ^^^ ^^ ^g^^^^^ ^^^ ^j^j^ ^^^^ ^^^,j.^^, ^^^^^^ ^^ ^^^^^ ^^^ and it applies where a judgment creditor has the first security upon the land and goes into possession : Henry v. Smiili (1842X 2 Dr. & War. p. 390. The possession of an incumbrancer on a life estate does not enable an incumbrancer on the remainder in fee to recover more than six years' arrears, since the latter, having no right to enter, is not prejudiced by such possession : Vincent v. Goinrj (1844), 1 Jo. & Lat. 697. An equitable in- cumbrancer, on whose behalf the legal estate was held, was treated in Drought v. Jones (1840), 2 Ir. Eq. E. 303, as retaining his priority for the purpose of the proviso, although he had agreed to postpone his charge in favour of a subsequent in- cumbrancer, but the case is of doubtful authority (Sugden's E. P. Stat., p. 146, n. (x)'). A purchaser, who takes an assign- ment of a satisfied charge, does not go into possession as an. incumbrancer, so as to enable a subsequent incumbrancer to recover more than six years' arrears of interest: 2)er Lord Westbury, C, in CUnnery v. Evans (1864), 11 H. L. C. p. 137. Arrears only The saving in favour of the subsequent incumbrancer, as the prov/soLriu- ^°^'^^^ °^ *^^^ proviso clearly show, gives him arrears only during prior the time of the prior incumbrancer's possession ; not for any period previous to such possession : Montgomery v. SoiithireU (1843), 2 Con. & Law, p. 268. possession. (3) Reversionary Interests. ]\iortgageof In general, no extension of time in respect of arrears is intereTin'^ allowed, becausc the mortgaged estate is reversionary. The real estate. principle of the proviso to sect. 42 applies, indeed, to such a case, but it does not fall within its words : Vincent v. Goinq (1844), 1 Jo. & Lat. pp. 702, 703 ; Sinclair v. Jackson (1853), 17 Beav. 405 ; Smith v. Hill (1878), 9 C. D. 143. These authorities outweigh the contrary decision of Wood, V.C, in Wheeler v. Howell (1857), 3 K. & J. p. 201. Reversionary The statute is not applied by way of analogy to interests in pwsoMi"' personality, and in proceedings under a mortgage of a rever- estate. sionary interest in personalty the mortgagee is not restricted to six years' arrears : Mcllcrsh v. Brown (1890), 45 C. D. 225 ; ClarksouY. Henderson (1880), 14 C. D. 348. And similarly where a vendor has a lien on such an interest for unpaid purchase money: He Stucley, [1906] 1 Ch. 67, C. A.; though if the. CHAP. Iir.] ARREARS OF INTEREST. 181 mortgage covers realty as well as personalty, it is indivisible, and the bar in respect of the realty applies also in favour of the personalty : Charter v. Watson, [1899] 1 Ch. 175. But, under the special terms of a mortgage of a reversionary Proviso for interest in land, the interest may not be in arrear till it falls SHf "' "'' into possession ; and then the limitation on " arrears " does not ^f"'^"^ ^•^'' apply : Re Lambert's Estate, [1906] 1 I. E. 220, C. A. Thus ^'^^' where the proviso for redemption entitles the mortgagor to redeem on or Ijefore the death of the tenant for life on payment •of the principal sum " with interest for the same in the mean time " at a specified rate, the interest for the purpose of the proviso is not deemed to be in arrear till the death, and the mortgagee is entitled to be paid without regard to any limitation on arrears. And this is so notwithstanding that the mortgage contains a covenant for payment of interest half-yearly, during the Hfe of the tenant for life. The proviso for redemption and the covenant are independent of each other : Re Turner, [18941 43 W. R. 153. Legacies are expressly included in sect. 42, but if the Le-acies not executors, acting for the benefit of the estate, wait for a rever- {^lersiLry sionary interest to fall into possession instead of selling ifc, interest got legatees, who in consequence have to wait for payment, have '"' been allowed interest from the end of one year after the testator's death, although this exceeds six years : Re Blachford (1884), 27 C. D. 676. (4) Interest in Redemption and Foreclosure Actions. The six years' limitation only applies where the person Distinction claiming interest is seeking to recover it bv action or other between re- T , T , , , . '' demption and du-ect proceeding, and hence a distniction has been made foreclosure. between the arrears which are allowed upon redemption and upon foreclosure. Formerly the right of the mortgagee to require payment of arrears beyond six years before redemption was based on the doctrine of tacking. To the six years to which he was entitled under the E. P. L. A., 1833, he was allowed, in order to avoid circuity of action, to tack the additional fourteen years which, upon the doctrine of Hunter v. Noekolds (1850), 1 Mac. & G. 640 {supra, p. 156), he could recover in an action on the covenant ; provided that the person seeking to redeem was the mortgagor or his heir or beneficial devisee, so that the right to tack the specialty debt existed : Fisher on Mortgages, 5th ed., self. 182 ARREAES OF DOWER, OF RENT, AND OF INTEREST. [CIIAR. III. p. 553 ; and hence, in Elrii v. Xoricood (1852), 5 De G. & Sm. 240, the mortgagee was allowed twenty years' arrears of interest in a redemption suit brought by the heir of the mortgagor : (f. Sinclair v. Jackson (1853), 17 Beav. 405. On the other hand, in a foreclosure suit, since it was the mortgagee who was taking steps to enforce his security against the land, he was restricted to six years' arrears : Sinclair v. Jackson (1853), 17 Beav. 405 ; Shaw V. Jolmson (18G1), 1 Dr. & Sm. 412; Bound v. Bell (18G1), 30 Beav. 121. This view prevailed over the opinion expressed by Wigram, Y.C., in Da Virjier v. Lee (1843), 2 Hare, 326, and Kemp V. Sober (1847), 6 Hare, 155, that, alike in redemption and in foreclosure, only six years' arrears could be obtained. Mort-agee is But it is unnecessary to have recourse to the doctrine of only barred in ^^^king. The removal of the limitation on arrears in redemption proceedings """^ o . ■, , . i^ -i ^• taken by him- actions is based on the consideration that sect. 42 only applies- where the mortgagee is seeking to recover arrears of interest by " distress, action, or suit." It applies, therefore, to a fore- closure action ; but a redemption action is not an action brought by the mortgagee, and in such action sect. 42 imposes no limitation on the arrears to which he is entitled, nor is any limitation imposed in such a case by 3 & 4 Will. 4, c. 42, sup- posing this to be operative as to arrears of interest (infra, p. 184) ; though after twenty years payment would be presumed. Hence the rule is, that since, in a redemption action, the mortgagee is not himself taking any proceeding to recover arrears of interest^ there is no limitation on his claim except that supplied by the presumption of payment after twenty years, and the mortgagor, therefore, who can only redeem on payment of all sums due under the mortgage, will have to pay the arrears for that period t Dingle v. Coj^Jen, [1899] 1 Ch. 726. The same rule applies also -wherever the mortgagee is able to make the mortgaged property available for satisfaction of his- debt without himself taking proceedings which attract the bar of sect. 42. This happens, for instance, where the mortgagee has sold the property under his power of sale. In an action brought by the mortgagor to recover the surplus proceeds, the mortgagee can retain the full interest due, although it goes beyond six years. The contrary decision given by Piomill}', M.E., in Mason v. Broadhent (1863), 33 Beav. 296, has been over- ruled by Edmunds v. Waugh (1866), 1 Eq. 418, Be Marshfield (1887), 34 C. D. 721, and Binglc v. Coppen, [1899] 1 Ch. 726. Proceeds of sale in hands of the mortgasree. CHAr. III.] ARREARS OF INTEREST. 183 In Edmunds v. Wauah (supra) the trustees of the will of the Troceeds of IT it/ t -Til 1-i. s^ls i"^ Court mortgagee had sold the property and paid the proceeds into on behalf of Court in an administration action. It ^Yas held that the fund "lortgagec. was still constructively in the hands of the trustees, and upon a petition by them for payment out of arrears of interest, they were not restricted to the six years' limit. The petition was not in the nature of a suit to recover interest under sect. 42, but was a means of giving effect to the trustees' right of retention. But where the fund is in Court, not on behalf of the mortgagee I'loceeds of solely, but on behalf of all parties interested, the position of the forVeisons" mortgagee as regards arrears of interest is the same as in entitled. respect of the land. If it is he who takes proceedings for payment out, he is treated as if he were seeking to recover interest, and he is limited to six years' arrears ; where, for instance, land has been taken under the Land Clauses Act, and the purchase money paid into Court : Re Stead's Mortgaged Estates (1876), 2 C. D. 713. And where land has been sold in Ireland on an incumbrancer's petition, another incumbrancer, who comes in and avails himself of the proceedings, is in the same position as if he were bringing an action, and he can claim no arrears beyond six years prior to his coming in : He Owen Lewis's Estate, [1903] 1 I. K 318. But where the petition is presented by the mortgagor or persons claiming through him, the mortgagee is in the position of a defendant, and the petitioners are only entitled to the balance after the mortgagee has received his principal and full arrears of interest : He Lloyd, [1903] 1 Ch. 385, C. A. ; overruling He Slaters Trusts (1879), 11 C. D. 227. If, however, the mortgage debt is barred and the mort- gagee's title extinguished, he cannot make use of this doctrine to claim either principal or arrears of interest : lie Hazeldine's Trusts, [1908] 1 Ch. 34, C. A. Section IV. — Limitation on Personal Remedies for Arrears op Rent and Interest. Sect. 42 of the Pw P. L. A., 1833 (3 & 4 Will. 4, c. 27), Ac^^- - imposes a general limitation of six years in any distress or action Twenty years brought to recover arrears of rent or interest on money charged J™',y on land ; wliile sect. 3 of the Civil Procedure Act, 1833 (3 ik. 4 reeoveWibl". Will. 1, c. 12) imposes a hinitatiun of twenty years on actions 184 AKREAKS OF DOWE^, OF RENT, AND OF INTEREST. [CHAP. Ill Effect of Sutton V. Sutton. for rent upon an indenture of demise and on actions of covenant for specialty debts, the result being that, under the latter enactment, twenty years' arrears of rent and of interest would be recoverable. The Civil Procedure Act was held to operate in respect of this limitation by w-ay of exception from sect. 42 the E. P. L. A., so that twenty years' arrears were recoverable in an action on the indenture of demise or the specialty, while in any other proceeding the arrears were limited to six years : Hunter V. Xockolds (1850), 1 Mac. & G. 640 ; Manning v. Fheljis (1854), 10 Ex. 59 ; supra, p. 156. The Civil Procedure Act did not apply to Ireland, but sect. 20 of the Irish Common Law Pro- cedure Act, 1853 (16 & 17 Yict. c. 113), enacted a twenty years' limitation for actions on indentures of demise and on specialties, and also on judgments ; so that in that country the exception extended to arrears of interest recovered in an action on a judgment. It is unnecessary to refer to the intermediate Irish legislation : cf. Harrison v. Duignan (1842), 2 Dr. & War. 295 ; S. C. Kyne v. Bignan, 4 Ir. Eq. E. 562; and its sequel, Bijrne V. Duignan (1845), 3 Jo. & Lat. 116, 9 Ir. Eq. E. 295; supra, p. 165. The extent to which this result has been altered by sect. 8 of the E. P. L. A., 1874, and by the construction placed on that section in Sutton v. Sutton (1882), 22 C. D. 511, C. A., has not been clearly settled. Sect. 8 touches principal sums charged on land and judgments, and operates to repeal, as regards them, the twenty years' limitation on personal actions contained in sect. 3 of the Civ. Proc. Act, 1833, and in sect. 20 of the Irish C. L. P. A., 1853 {supra, p. 157). If this construction applies to principal sums only, then arrears of interest are left to be governed by the previous law, and in an action on the covenant twenty years' arrears of interest could still be recovered : cf. Straclian v. Tliomas (1840), 12 A. & E. 536 ; Elvy v. Noncood (1852), 5 De. G. & Sm. 240. Sects. 40 and 42 of the E. P. L. A., 1833, distinguish between sums of money charged upon land and interest in respect of such sums, and sect. 8 of the Act of 1874 in re- producing sect. 40 must be taken to use " sum of money " in the same sense. Consequently sect. 8 imposes no express bar on arrears of interest which did not before exist. Moreover, although no action can be brought for the principal sum after twelve years, yet the principal debt is not extinguished, and the arrears of interest for twenty years would still be CHAP, in.] LIMITATION ON PERSONAL REMEDIES. 185 recoverable. And similarly in Ireland, twent}- years' arrears of interest could be recovered in an action on a judgment, though the judgment debt was barred in twelve years, and it was so held in BresUn v. Hodgcns (1876), Ir. E. 10 Eq[. 260. But it is difficult to treat the implied repeal of sect. 3 of the Implied Civil Procedure Act, 1833, and of sect. 20 of the Ir. C. L. P. A., "^f^^^^tiL as 1853, as being confined to principal sums. These sections to arrears of impose a twenty years' limitation on actions on specialties and on judgments, without distinguishing between principal and interest, and if sect. 8 of the E. P. L. A., 1874, has impliedly repealed them as to principal sums, it is a natural conclusion that they are repealed also as to interest. The interest follows the principal, and it cannot have been intended to repeal the exception so far as it was favourable to principal, and to leave it intact so far as it was favourable to interest. Under the earlier statutes just mentioned the exception was a single exception in favour of actions on specialties, though it operated as regards both principal and interest, and if it is gone as to principal, it is gone, too, as to interest. The same considerations apply in Ireland as to interest on judgments. If this view is correct, it remains to consider whether the Arrears of ,,.... I , interest now arrears are now subject to a twelve years limitation under sect, recoverable 8 of the Act of 1874, or to a six years' limitation under sect. 42 of "^^^^"^ ^'^ the E. P. L. A., 1833. But sect. 8, as just pointed out, does not limit arrears of interest, and, if it were possible to hold that it did, there would be the anomalous result that in proceedings against the land the arrears would be limited to six years under sect. 42, and in proceedings on the covenant they would be limited to twelve years under sect. 8 ; in other words, sect. 8 would have the effect of perpetuating, with a change from twenty years to twelve years, the exceptional mode of treating arrears which, us just suggested, it was intended to abolish. This result is inadmissible, and it may be taken that the effect of the implied repeal of sect. 3 of the Civil Procedure Act, 1833, and sect. 20 of the Ir. C. L. P. A., 1853, is to leave sect. 42 of the E. P. L. A., 1833, as the one enactment governing arrears of interest on sums of money charged on land and judgments, so that in all proceedings the arrears are limited to six years. Porter, M.l\., so decided in M'DonncU v. FUzrjcrahl, [1897J 1 I. E. ^^^'^, as to arrears of interest on judgments in Ireland, and he declined to follow IJrcsliii V. J/'xh/rns (1876), Ir. E. 10 E(i. 2(50. It is 18G ARREARS OF DOWER, OF RENT, AND OF INTEREST. [CHAP. III. Ai'rears of rent-charpre recoverable only for six years. Rent on lease ])y deed rtcoverable for twenty years. Summary as to arrears of rent and Interest. believed that this is the correct view, also, as to interest on specialty debts charged on land. A similar question as to the effect of sect. 8 of the E. P. L. A., 1874, arises in regard to rents charged on land and also secured by covenant. Prior to that Act six years' arrears of the rent were recoverable against the land and twenty years' arrears in an action on the covenant : supra, p. 156. The rent is within sect. 1 of the Act of 1874 and sect. 34 of the Act of 1833, and is now liable to be barred in twelve years and the title to it extinguished, and when this has happened, no arrears can be recovered at all : supra, p. 28. Hence the arrears are in any case limited to twelve years. But prima facie they are subject to the six years' limit of sect. 42 of the E. P. L. A., 1833 ; they can only obtain more favourable treatment on the ground that each annual or other periodical payment is a sum secured by personal covenant and recoverable as a specialty debt within the limit assigned by sect. 3 of the Civil Procedure Act, 1833. If they were so recoverable, the limit would be shortened from twenty to twelve years by sect. 8 of the Act of 1874 ; but, in fact, the implied repeal of sect. 3 of the Civil Procedure Act, 1833, as regards actions to recover specialty debts charged on land must extend to successive payments of a rent-charge, and in the result these are left to the six 3^ears' limitation of sect. 42 of the E. P. L. A., 1833. As regards rent reserved on an indenture of demise the case stands differently. Such rent is within neither sect. 40 of the E. P. L. A., 1833, nor sect. 8 of the Act of 1874, and in sect. 3 of the Civil Procedure Act, 1833, and sect. 20 of the Ir. C. L. P. Act, 1853, it stands as a separate item from specialty debts. There is no ground for saying that the implied repeal of these sections as to specialty debts charged on land extends to the quite different matter of rents on indentures of demise, and as to these the former law remains. Twenty years' arrears are recoverable in an action on the indenture, while only six years' arrears are recoverable against the land ; and it has been so held both in England and Ireland : Darley v. Tcnnant (1885), 53 L. T. 257 ; Donegan v. Xeill (1885), 10 L. E. Ir. 309 ; cf. (rraham v. Lewis (1885), 80 L. T. Newsp. G(). At present, therefore, the law appears to stand as follows : — (1) Interest on sums of money charged on land and on judgments is limited to six years in all proceedings. CHAP. III.] ACCOUNT OF RENTS AND PROFITS. 187 (2) Arrears of rent-cbarges secured by covenant are limited to six years in all proceedings. (3) Arrears of rent reserved on an indenture of demise can be recovered for twenty years in an action on tbe indenture, l)ut only for six years in otber proceedings. It is assumed tbat tbe proceedings are instituted by the creditor. His rigbt of retention is not limited to tbe six years' period : supra, p. 182. Section Y. — Account of Eents and Profits. (1) At Law. A claim for recovery of land is usually accompanied by a Trespass f..r claim for an account of rents and profits. Where A., the person entitled, is wrongfully kept out of possession, the actual occupier, B., may either be occupying on his own account, or as tenant to a third person, C, who is the real adverse possessor, and to whom B. pays rent. In either case the former remedy of A. was first to recover in ejectment, and then to bring trespass for mesne profits. The recovery in ejectment was evidence of his title from the day of the demise laid in the declaration, but for any antecedent period special proof of title had to be given : Adams on Ejectment, p. 342. The judgment for recovery of possession was against B., the actual occupier, and he was liable in the action for mesne profits. But where he had been let into possession by C, and C. had continued to sanction his possession by receipt of rent, C. also was considered as a trespasser, and might be joined as a defendant : Doe v. Ilaiiow (1840), 12 A. & E. 40. The action of trespass for mesne profits was subject to the limitation on trespass in the Limitation Act, 1623, and the plaintiff could recover only the rents for six years before action brought (Buller's X. P. 88), unless he was entitled to an extension of time on account of disability : Hichs v. SalUtt (1854), 3 D. M. & G. 782 (see p. 802). "Where there is a valid lease subsisting, but the lessee, B., Recovery of pays the rent to C, instead of to A., the person entitled to fuiiy received. receive it, the payment is no discharge to B., and A. may recover the rent against him ; but such claim is subject to the limitation of sect. 42 of the 11. P. L. A., 1833, and only ISS AEKEAES or DOWEE, OF EENT, AND OF INTEEEST. [CHAE. III. six years' arrears are recoverable. Instead, however, of pro- ceeding against B., A. may claim against C. the rents which he has wrongfully received. Such a claim will be in an action for money had and received, and, being an action of assumpsit — that is, case — will be subject to the six years' limitation under the Limitation Act, 1623. The recovery of the rents in this manner will discharge B. from liability to A. : Buller's N. P. 133; Chitty on Pleadings, 112; cf. Moses v. Macferian (1760), 2 Burr. 1005 ; Boyter v. Dodsivorth (1796), 6 T. Pi. 681 ; Glcdhill V. Hunter (1880), 14 C. D. 492, at p. 495. Joinder of In actions for recovery of land or for declaration of title to claim to Ysmd, the claim in the action can now include a claim for mesne recover laud ■"^•"^j and claim for profits : Pi. S. C, 1883, Ord. 18, r. 2 ; Glcdhill v. Hunter (supra) ; mesne profits. ^^^ ^^^^ change in the form of the action does not affect the operation of the Statute of Limitations {Gihhs\. Guild (1882), 9 Q. B. D. p. 67, C. A.), and the period for recovery of rents is limited to six years before action, as formerly in an action of trespass for mesne profits, or in an action for money had and received. (2) In Equity. Accomit of Where an account of rents and profits is ordered in equity renis in j^ j^^y \^q . (^^ without limit, for the w^hole of the period since the plaintiff's title accrued ; (2) for six years before action ; or (3) only for the period since the action was commenced. The account is directed w^ithout limit where the circumstances are O) Without such that there is no statutory limit applicable, either expressly ""' or by way of analogy, and where there is no reason for equity to impose a special limit of its own. This is the case (1) where the claim is founded on an express trust or upon fiduciary relationship (see as to a committee of a lunatic, Wright v. Chard (1859), 4 Drew. p. 680 ; and as to guardian and ward, Mathcic V. Brise (1851), 14 Beav. 341), and is not limited by the Trustee Act, 1888 ; (2) where the plaintiff was an infant when his title accrued, and sues within six years of attaining twenty- one (see hockey v. Loclcey (1719), Prec. Chan. 518, referred to in Knox V. Gye, L. Pi. 6 H. L. p. 674) ; and (3) where the assistance of equity is invoked upon the ground of fraud, misrepresentation, or concealment : Dormer v. Fortescuc (1744), 3 i\.tk. 124 ; StacTi- poole V. iJavoren (1780), 1 Bro. P. C. 9 ; Hicks v. Sallitt (1854), 3 D. M. & G. 782. Cf. Hood v. Easton (1856), 2 Jur. N. S. 729, equity : limit. CHAP. III.] ACCOUNT OF RENTS AND PROFITS. 189 917, as to accounts against a mortgagee, who has permitted mines to be worked by a stranger, and against sucli stranger. See, too, Monjipcnnn v. Bristow (1832), 2 R & M. 117. Where, on the other hand, the suit is subject expressly (2) For six or by way of analogy to the statutory bar of six years, this ^*^'^"' limit is adopted in equity ; and hence, if the account is sought in equity because the limitations are equitable, or if proceedings are taken in equity in aid of a legal title, the account is limited to six years before action : Reade v. lleade (1801), 5 Ves. p. 749 ; Gibbon V. Snape (1863), 1 D. J. & S. 621 ; Hickman v. Upscdl (1876), 4 C. D. 144, C. A. ; and none the less because the defendant holds under trustees : Ilerci/ v. Ballard (1793), 4 Bro. C. C. 468. But where this statutory limit is not applicable, and there are special reasons for favouring the defendant, equity imposes a shorter limit than at law, and the account is not carried back beyond the commencement of the action. (::) From Thus where the account would prima facie be unlimited, but ^^^0^^" the defendant is a bond fide adverse possessor — that is, where action. he had no notice of the plaintiff's title — then the account is limited to the commencement of the proceedings : Dormer v. Fortescue (supra) ; Hicks v. Sallitt (supra). And it is the same if the plaintiff, although he would prima facie be entitled to an unlimited account, has forfeited this right by his laches : Dormer v. Fortescue (supra); see Harmood v. Oglander (1801), 6 Ves. 199, p. 225. Even in a case of express trust the delay of the plaintiff' may be a ground for limiting the account to the commencement of the action: SmitJi v. Smith (1876), 1 L. E. Ir. 206, C. A. It is doubtful whether in the case of an infant it is necessary. Right to for the purpose of carrying the account back without limit, to hTin^dnv^\^ rely upon the doctrine stated in Dormer v. Fortescue, namely, that one who enters on the estate of an infant enters as a guardian or bailiff of the infant. It is preferable to regard the Limitation Act, 1623, as applying by way of analogy, and then the plaintiff' 's rights are saved during his disability and for six years after : Hicks v. Sallitt (ubi supra), per Turner, L.J., at pp. 816, 817. If this is so, it follows that the defendant cannot rely upon his bona fide possession in order to restrict the account to the commencement of the action. In the judgment just referred to. Turner, L.J,, stated the I'ulc Extent of rulo in favour of the bona fide adverse possessor in such terms as to '" *'^^'0"i' '^f ^ 190 ARREARS OF DOWER, OF RENT, AND OF INTEREST. [CHAP. III. bond fide extend apparently to all proceedings in equity. "In cases of possessor. adverse possession, where there is no trust, no infancy, no fraud, no suppression, where, in short, there is a mere J>ond fide adverse possession, it is not according to the course of the Court to carry back the account of rents beyond the filing of the bill." But probably this rule only applies to cases where the Court is not guided by the analogy of the statute. If the account is one to which the statutory six years' limit would j)roperly apply, it will not be limited to the commencement of the action because the defendant is a hona fide possessor. This special limit is only imposed in cases where a Court of Equity is not subject expressly or by analogy to the legal limitation. Where the statutory limit applies, the defendant cannot escape accounting for six years' rents and profits on the ground of his hona, fides: see Hiekmcm v. JJpsall {supra). Produce Where rent is payable in iDroduce, such as minerals, it rents. accrues for the purpose of account at receipt of the produce, not at its subsequent sale: Deuijs v. Shuehhargh (1840), 4 Y. & C. Ex. 42. CHAPTER IV. ACTIONS OF CONTRACT AND TORT. Section I. — General Eules of Limitation. (1) Sinq^le Contract and Tort. Under the Limitation Act, 1623 (21 Jac. 1, c. 16), actions Siatute of founded on simple contract and tort are barred in six years '^"™^^- from the accrual of the cause of action ; except actions of assault and battery and actions for false imprisonment, which are barred in four years, and actions of slander, which are barred in two years : — "All actions of trespass quarc clausum f regit, all actions of Limitation trespass, detinue, action sur trove,; and replevin for taking away -^ct, l(Ji':(, s. 3. of goods and cattle, all actions of account and upon the case, other Six years' than such accounts as concern the trade of merchandise between simple «m-° merchant and merchant, their factors or servants, all actions of tract and debt grounded upon any lending or contract without specialty, ^^^^' all actions of debt for arrearages of rents,| 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 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 of trespass quare clausum f regit, within three years next after the end of this present session of Parlia- ment, 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 suits, and not after ; and the said actions 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." The Act does not apply to Ireland. For the corresiDonding Irish statute, see infra, p. 107. 192 ACTIONS OF CONTRACT AND TORT. [CHAP. IV. Actions The following table shows the actions enumerated in the itatute^^*^^ statute of James, and the limitations respectively assigned to them : — Old forms of action. Actionable "wronEfS. Actions enumerateil Tresi:)ass qu. d. fr. Trespass. Detinue. Trover. Replevin. Account (otiier than merchants' ac- counts). Case. Debt on lending. „ on contract without specialty. „ for arrears of rent. Assault, menace, battery, -wounding, and imprisonment. Limitations imposed. Case (except slander) Account Trespass Debt Detinue Replevin Trespass ^u. d.fr. Assault, battery, woundinj and impiisonment Case for words . SIX }' ■ears^ four years, two years.. The old actions of tort were: tresjDass, detinue, trespass on the case (or, shortly, case), and replevin. Trover was a form of case. The actions of contract were debt and assunqjsit, the latter being a form of case. The action of account was intro- duced to prevent the waste of time that would have been involved in submitting current accounts to a jury in an action of assumjisit. The judgment was that the defendant should account — Quod comimtet — before a master or auditor : Gilb. Law of Evidence, p. 192 : Scott v. M'Intosh (1809), 2 Camp.. 238. But the action fell into disuse : Lee, Diet, of Pract., 1825, p. 8. The various wrongs for w4iich these forms of action provided a remedy may be grouped as follows : — Wrongs. Wrongs to the person. Direct injury : assault and battery Indirect injury : negligence .... Injury to health : nuisance .... Injury to reputation : slander, libel, malicious prosecution Interference with liberty : false imprisonment . Wrongs to property. Seal property. Unlawful entry upon land Other wrongs, such as nuisance, waste, disturb- ance of franchise, common, or ways , Eemedy. Trespass. Case. Trespass. Trespass (ju. d.fr.- Case. CHAP. IV.j GENERAL RULES OP LIMITATION. 19^ Wro7igs. WroiKjS to property — continued, l*ersonal property. Unlawful taking Unlawful detainer Deceit causing loss ...... Failure of sheriff in duty upon an execution Abuse of property Infringement of copyright, patent, or trade- marli Injuries in pi-ivate relations. Husband and Wife. Abduction Enticing away Master and servant. Enticing away ; seduction il. Breach of simple contract liemedy. Keplevin, trespass (or, by election, trover). Detinue (with judgment for specific return), trover. Case. Trespass or case Case. Trespass. Case. Case. Debt, assumpsit, account. All these actions are enumerated in the first column of the Limitation above table {supra, p. 192), and, in different order, are repeated ^'jlf/gt^ndhi- in the second column, with the exception of trover, which, abolition of however, is included under case : Sivaync v. Stc2ihens (1631), action. €ro. Car. 245. Trespass includes an action for mesne profits : Bull. N. P. 88 ; Beade v. Reade (1801), 5 Yes. 744. Hence the section imposes a general limitation on actions of tort and simple contract, and the prescribed periods of limitation still apply, notwithstanding that the forms of action with reference to which they were imposed have been abolished. " I am of >opinion," said Brett, L.J., in Gihhs v. Guild (1882), 9 Q. B. D. p. 67, ''that the Judicature Act, 1873, did not alter or touch the Statute of Limitations at all, and that that statute still applies to the circumstances which constituted the actions named in it ; that is to say, that if the circumstances would have constituted an action on the case, or an action of trespass, although the action which involves the remedy sought would not now be called an action on the case or an action of trespass, yet, notwithstanding, the Statute of Limitations api)hes to it, if the facts are such as would have supported an action on the case or an action of trespass." A six years' limitation was imposed on seamen's wages by 4 & 5 Anne, c. 3 : infra, p. 245. T.L A.. 194 ACTIONS OF CONTRACT AND TORT. [CHAP. lY. Specialty debts, etc. Civ. Proc. Act. 1833, 8.3. Twenty years' limitatioji (lu specialty debts. (2) Spedaltij Debts. By the Civil Procedure Act, 1833 (3 & 4 Will. 4, c. 42) (which does not apply to Ireland), a limitation of twenty years was imposed on actions for rent reserved by lease under seal and for specialty debts ; and limitations were provided for certain actions which had been omitted from the Limitation Act, 1G23. " 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, 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 recognizance, within twenty years after the cause of such actions or suits, but not after ; the said actions by the party grieved, within two years after the cause of such actions or suits, but not after ; and the said other actions 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." Before this statute there was no limitation in England in respect of specialty debts other than that arising from pre- sumption of payment after the lapse of twenty years. The Irish statute is mentioned subsequently : infra, p. 197. Thus :— Actions of debt for rent due upon a lease under seal " „ „ covenant or debt upon any bond or other specialty ,, „ of debt or scire facias upon any recogni- zance Actions of debt on an award Avhere the submission is not by specialty „ ,, for copyhold fines ,. „ for an escape ,, ,, for money levied on a ^. /a. Actions for penalties given by statute to the party \ grieved ) Are barred in 20 years. xYre barred in years. Are barred in 2 veais. ClIAr. ly.] GENERAL RULES OF LIMITATION. 195 An action of debt for rent reserved by lease under seal was Rent reserved not within the Limitation Act, 1623 : Freeman v. Staceij (1630), s^Jalr''' "°'^^' Hiitt. 109. The effect of the twenty years' limitation is that arrears can be recovered by action for the whole of that period, though the remedy by distress is limited by sect. 42 of the E. P. L. A., 1833, to six years' arrears : supra, p. 174. The twenty years' limit applies whenever the debt arises upon instrument an instrument under seal ; and since the Statute of Limitations ""*^^^' ^'^^^• is a matter of procedure, such a debt can be sued on within twenty years in this country, although it was contracted in a country where the distinction between simple and specialty debts is not recognized, and where all are barred alike in a period less than twenty years : Alliance Bank v. Careu (1880), 5 C. P. D. 429 ; vide infra, p. 213. A liability on shares in a company governed by deed of settlement is a specialty debt : Re Ports- mouth Banhinrj Co. (1866), 2 Eq. 167. A recital of a simple contract debt in a deed does not necessarily imply a fresh contract under seal to pay it, so as to exclude the six years' limit. To produce this result there must be an intention that the deed shall operate by way of agreement to pay : Iven v. FAwes (1854), 3 Drew. 25. A " specialty " implies an obligation inter partes, and hence a Tithe rent- claim to a tithe rent-charge is not a claim founded on specialty : ^^''^'"S^- Conolhj v. Gorman, [1898] 1 L K. p. 37. A liability arising under statute is within the words "or Liability other specialty," and is not barred till twenty years have run. ""J^^J'^ This is so with respect to calls on shares arising by virtue of the Companies Clauses Act, 1845, and a special Act : Cork & Bandon By. Co. v. Goode (1853), 13 C. B. 826; Shepherd v. Hills (1855), 11 Ex, p. 67 ; or under the Companies Act, 1862, since sect. 16 makes the calls a specialty debt : Buck v. Rohson (1870), 10 Eq. 629 ; and, generally, where the cause of action is statutory : see Magherafelt Union v. Grihhen (1889), 24 L. E. Ir. 520 (as to liability for seeds supplied under the Seed Supply (Ireland) Act, 1880) ; Nichols v. Berjenfs Canal Co., [1894] 63 L. J. Q. B. 641 (as to liability of a company to pay costs under statute) ; Be Cornwall Minerals Rij. Co., [1897] 2 Ch. 74 (as to liability of a company to pay interest on stock issued under the Companies Clauses Act, 1863 (26 & 27 Vict. c. 118)). But wlicrc a statute merely gives a right to payment out of a particular fund the remedy is by action on the case, and the six years' limit applies : 190 ACTIONS OF CONTRACT AND TOPwT. [CHAP. IV Dividends. Return of capital. Mcujor of Salfonlw Lancasldre County Council (1890), 25 Q. B. D. 884, C. A. Payments due from a company in pursuance of its articles of association to members, to whom share certificates have been issued under the company's seal, are due under specialty, and the limitation is twenty years ; such as payments in respect of dividends : Smith v. Cork & Bandon By. Co. (1870), Ir. K. 5 Eq. 65, C. A. ; Re Drogheda Steam Packet Co., [1903] 1 I. E. 512 ; Re Artisans' Land, etc., Covporation, [1904] 1 Ch. 796 ; or in respect of return of money upon a reduction of capital : Re Artisans'' Land, etc., Corporation. Probably the result would be the same, although no certificates are issued, since the articles have statutory sanction and rank as a deed as between the company and the members : Comp. Act, 1862, s. 16 ; Smitli v. Corh & Bandon Ry. Co. {supra). In respect of dividends declared on shares, time runs from the date of the declaration : Re Severn, etc., Ry. Co., [1896] 1 Ch. 559 ; Re Artisans' Land, etc.. Corporation ; and in respect of capital to be returned on shares, from the date of the notice of the order of the Court con- firming the reduction: Re Artisans' Land, etc.. Corporation. But the company will lose the benefit of the statute if it appro- priates assets to meet the claim, or puts itself in the position of a trustee for the shareholders : Re Severn, etc., Ry. Co. A simple contract debt does not cease to be such because it is secured by warrant of attorney, and it remains subject to the six years' limitation : Clarke v. Figes (1817), 2 Stark. 234. Where a debt secured by specialty is also charged on land, debts charged an action on the specialty is barred in twelve years under the on anf. p^^ p^ -j^^ ^^ 1874, s. 8, supra, p. 154. Where it is charged on a reversionary interest, either in real or personal estate, the fact that the remedy on the specialty is barred when the interest falls into possession does not prevent the mortgagee from then recovering such interest by virtue of the assignment to him : supra, p. 160. But when there is a mortgage on a present interest, and the mortgagee's right of action has been barred and his title to the mortgaged property extinguished, he cannot rely upon his still existing specialty debt as a ground for obtaining payment of the debt out of proceeds of the mortgaged property in Court in proceedings taken by the mortgagor to get the fund out of Court : Re Hazeldine's Trusts, [1908], 1 Ch. 34, C. A. Warrant of attorney. Specialty CHAl'. lY.] GENERAL RULES OF LIMITATION. 197 Actions of debt upon anij aivard u-herc the siibmission is not hij Actions on • 7 , /• "^ J? 7 • /■ 7 7 7 f awards, etc. speciaity ; Jor any jinc due in respect oj any copyliold estates ; jor an escape; and for money levied on any fieri facias, were not within the statute '21 Jac. 1, c. 16. Where the submission was under hand and the award under seal, the action was excluded either as being on a specialty or because it was not an action of debt "grounded upon any lending or contract": Hodsdcn v. Harridye (1670), 2 Wms. Saund. ed. 1871, p. 150 ; 1 Lev. 273. Debt for a copyhold fine was adjudged not to be within the statute : see per Twisden, J., in 1 Lev. 273 ; and debt against the sheriff for money levied on a fi. fa. was excluded as being on the footing of matter of record : Cochram v. Welbye (1680), 2 Show. 79. An action of debt for an escape was founded on statute, namely, 1 Ric. 2, c. 12, and, therefore, was not within 21 Jac. 1, c. 16 : Jones v. Pope (1667), 1 Saund. 37 ; though, if the action was brought in case, the six years' limit applied : Wms. Saund. ed. 1871, p. 61. All these matters were made subject to the six years' limita- tion by sect. 3 of the Civil Procedure Act, 1833 (3 & 4 Will. 4, c. 42). The cause of action for a copyhold fine accrues on the admittance of the tenant : Monckton v. Payne, [1899] 2 Q. B. 603. As to actions for penalties, vide infra, p. 240. (3) Irish Statutes. The Irish statutes corresponding to the Statute ot James and Limitations iu 4 & 5 Anne, c. 3, were 10 Car. 1. sess. 2, c. 6 (Ir.) and 6 Anne, ^'■'''''''^• c. 10 (Ir.). A twenty years' limitation on specialty debts was enacted for that country by 8 Geo. 1, c. 4 (Ir.) : see Ee Greene's Estate (1884), 13 L. E. Ir. p. 477, C. A.; Vincent v. Willington (1842), Long. & T. p. 462. This statute was superseded and repealed by Pigot's Act (3 & 4 Vict. c. 105), s. 32, as explained by 7 & 8 Vict. c. 90, s. 39. And ultimately 10 Car. 1, sess. 2, c. 6, 6 Anne, c. 10, and sect. 32 of Pigot's Act were repealed by the Irish C. L. P. A., 1853 (16 & 17 Vict. c. 113), and corresponding limitations for simple contract and specialty debts, and also for tort, were enacted by sect. 20 of that statute. They may be stated as follows : — 198 ACTIONS OF CONTRACT AND TORT. [CHAP. IV. Actions. Eent on indenture of demise Bond or other specialty Judgment, statute staple, statute merchant, or recoc nizance Lending or contract, express or implied, without \ specialty Award where submission is not by specialty Money levied on Ji. fa. Account (other than merchants' accounts) Direct injuries to real or personal property Taking away, detention, or conversion of property, goods, and chattels Libel, malicious prosecution and arrest, seduction, criminal conversation Other actions which would formerly have been tres- pass on the case, " except as hereinafter excepted " Assault, menace, battery, wounding, and imprison- ment Slander Penalties, damages, or suras of money. given to the party grieved Limitations. 20 years. 6 vears. 4 vears. 2 vears. The section concludes with a provision that ** with respect to every cause of action not herein specifically provided for, being the subject-matter of a personal 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." These general words keep alive the limitation on actions to recover copyhold tines, which are not expressly mentioned. It will be noticed that the section extends to judgments, as regards which, how- ever, it is impliedly repealed by the R P. L. A., 1874, s. 8, {supra, p. 165). Extension nf time where action abortive. Limitation Act, 1(!2:J, s. 4. New action allowed within a year (4) Extension of Time irherc Action is ahortivc. The Limitation Act, ]6"23, allowed further time in certain cases where an action originally brought within the six years had proved abortive : — " If in any of 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 i^Iaintiff, that he CHAr. lY.] GENERAL KULES OF LIMITATION. 199 take nothing by his plaint, writ, or bill ; or if any of the said actions shall be brought by original, and the defendant therein be outlawed and shall after reverse the outlawry ; 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." A similar provision is contained in sect. G of the Civil Procedure Act, 1833 (3 and 4 ^Yill. 4, c. 42), as to specialty- debts, but the part of this latter section relating to outlawry was repealed by the Statute Law Eevision (No. 2) Act, 1888 (51 & 52 Vict. c. 57). The corresponding Irish provision, which makes no mention of the case of outlawry, is sect. 21 of the Irish C. L. P. A. 1853 (16 & 17 Vict. c. 113). Thus sect. 4 of the Act of 1623, and sect. 6 of the Civil iiow action Procedure Act, 1833, in its original form, allowed a further time ^°J™^e^ of one year in cases where the plaintiff's action was abortive abortive, either (i.) because a judgment in his favour was reversed on «rror, or (ii.) because, after a verdict in his favour, motion was made in arrest of judgment, and judgment was given against iiim, or (iii.) because the defendant failed to appear and was outlawed. Outlawry in civil proceedings had fallen into disuse before 1879, when it was abolished by sect. 3 of the Civil Procedure Acts Repeal Act, 1879 (42 & 43 Vict. c. 59). Procedure in error was abolished by R. S. C, 1875, Ord. 58, r. 1, and appeals to the Court of Appeal are now by way of rehearing: see QuUter v. Mcqileson, 1882, 9 Q. B. D. 672, C. A. Motions in arrest of judgment are also obsolete, and the practice as to obtaining and setting aside judgments is regu- lated by Pi. S. C, 1883, Ord. 40. Under the present system the judgment as finally entered operates as a bar to further proceedings, so that the above sections have ceased to have any direct operation. But by an equitable construction they have been extended Death of to the case where the action is abated by the death of the ^'"^ -^ " plaintilT or defendant, and the plaintiff or his personal representatives, as the case may bo, are then allowed to bring a new action within a reasonable time, notwithstanding that the six years have elapsed. This additional period is computed, in the case where the plaintilf has died, from the death, and 200 ACTIONS OF CONTRACT AND TORT. [CIIAr. IV, Former extension of time by marshalling. where the defendant has died, from probate of his will or grant of administration (see ^)rr Lopes, L.J., in SivindcU v. BiifJickif (1886), 18 Q. B. D. 250, at p. 255), and in general it is fixed at a year in analogy to sect. 4 : Kinsej/ v. Heyicard (1699), 1 Ld. Raym. 432 ; 2 Wms. Saund., notes to Hodsden v. Hanidge, Ed. 1871, p. 173. But the time is not necessarily thus limited, and it will be extended for good cause, as where there has been a difficulty in constituting a personal representative : Curlewis v.. Mornington (1857), 7 E. & B. 283, in Ex. Ch., 27 L. J. Q. B. 439; Hturgis v. Darell (1859), 4 H. & N. 622, 6 H. & N, 120, decided on sect. 3 of 3 & 4 Will. 4, c. 42. And such new action may still be brought, although, by virtue of R. S. C, 1883, Ord. 17, r. 1, the original action does not now abate upon the death of any of the parties : Swindell v. Bulkcley (supra). It was at one time considered that simple contract creditors against the estate of a deceased person might, under certain circumstances, gain an extension of time against the land under the doctrine of marshalling. This was when the- specialty creditors, who alone had a remedy against the land, had resorted to the personalty. The simple contract creditors were thus deprived of their proper fund, and were consequently allowed to stand in the place of the specialty creditors against the land, and, moreover, they were allowed for this purpose the twenty years' limitation appropriate to specialty debts : Vickers V. Oliver (1842), 1 Y. & C. C. C. 211 ; Ellnrd v. Cooper (1850), 1 Ir. Ch. E. 376; but see Bushj v. Seymour (1844), 1 Jo. & Lat. 527. But now that simple creditors have a direct remedy against the real estate, the reason for this application of the doctrine of marshalling has gone, and the corresponding extension of time has gone with it : Fordham v. Wallis (1852),, 10 Hare, p. 230. Accrual of cause of action. Section II. — Accrual of Cause of Action. In slander the statute runs from the time when the words are spoken ; in other matters from the time when the cause of action arises. When the injury in itself gives a right to damages without proof of actual loss, the cause of action arises upon the happening of the injury. This is the case where the injury is a direct infringement of a right or is a breach of CHAP. IV.] ACCRUAL OF CAUSE OF ACTIOX. 201 contract. "When the injury is not actionable save on proof of actual loss — or, as it is usually put, when damage is the gist of the action — the cause of action does not arise until the happening of the actual loss. And in a third class of actions the conduct causing the damage only becomes wrongful if actual loss results, and here again the cause of action arises upon the happening of the loss. (1) Where the Action lies icithoiit Proof of Actual Damage. An infringement of personal rights — that is, rights to bodily Personal security, to reputation, and to liberty — gives an immediate ° right of action without proof of special damage, the law in such cases imputing general damage ; save only in slander, if the words si^oken are not actionable j^'r se. The statute runs accordingly^ upon the occurrence of the event — such as an assault, the publication of a libel, or an imprisonment — which constitutes the infringement. In slander, if the words are not actionable j^er se, time runs from the special damage : itfra, p. 203. False imprisonment gives a continuing cause of action, and an action will lie in respect of so much of the imprisonment as has occurred within four years, but the defendant may plead the statute as to the earlier imprisonment : Coventry v. Apslei/ (1692), 2 Salk. 420; Baihij v. Warden (1815), 4 M. & S. 400 ; Tlardi/ v. Ej/le (1829), 9 B. & C. G03. Where, however, the defendant did not cause the imprisonment, but prevented the release more than four years ago, the action against him is barred : see ]l(dett v. Simpson (1857), 8 E. & B. 344. Similarly, infringements of rights of property give an imme- rdirhts of diate cause of action. In the case of tresj)ass, if the trespass property, is an isolated act, the statute runs from the trespass, and if this is more than six years old, the action is barred : Clegcj V. Dcarden (1848), 12 Q. B. 576; ef. Wordsworth v. Harley (1830), 1 B. & Ad. 391, where under a special statute time ran from the "fact committed." If the trespass is continuing, then a fresh cause of action is continually arising: see Holmes v. Wilson (1839), 10 A. & E. 503; and • damages can be recovered in respect of so much of the trespass as has occurred within six years. A nuisance is immediately actionable without proof of special damage, and the statute runs forthwith, if it constitutes a direct infringement of a 202 ACTIONS OF CONTRACT AND TORT. [CriAr. IV. Breach of simple con- tract. Subsequent special damage. Breach of specialty contract. Covenants for title. right ; as where a commoner enjoys more than his share of the commonable rights: Wdls v. WatUiu/ (1779), 2 W. Bh 123;^; note to Marys' Case (1613), 9 Eep. 113 a. As to conversion of personal property : vide infra, p. 222. AVhere an action is brought upon a contract, it is the breach of contract, and not the promise, which gives the cause of action. " The rule is firmly established that in assumjjsit the breach of contract is the cause of action, and that the statute runs from the breach, even where there is fraud on the part of the defendant " : East India Co. v. Paid (1849), 7 Moo. P. C. C. 85, at p. Ill ; see Gould v. Johnson (1702), 2 Salk. 422 ; and jvr Lord Mansfield in Fenfon v. EmUers (1762), 3 Burr. p. 1281. Thus, where there is a promise to do a thing on request, the action arises on the request and not on the promise : Wchh v. Martin (1662), 1 Lev. 48; BncJderY. Moor (1672), 1 Mod. 89; Slmtford v. Penow (1629), Cro. Car. 139. And the statute runs forthwith upon the breach, though special damage may accrue later. "In an action of assumi^sit, the Statute of Limitations begins to run, not from the time when the damage results from the breach of promise, but the time when the breach of promise takes place " : Howell v. Younfj (1826), 5 B. & C. 259, per Bayley, J., at p. 265. The breach of contract is the gist of the action, not the special damage : Battleij V. Faulkner (1820), 3 B. & A. 288. Similarly, in the case of breach of covenant, the cause of action accrues upon the breach being complete, and the statute thereupon begins to run, notwithstanding that special damage occurs subsequently ; though if the breach is continuing, it furnishes from day to day a fresh cause of action, and the covenantee can recover damage suffered within twenty years before action. "Where a bond is conditioned for the performance of a series of acts at stated times — as for payment of successive instalments of money — a new cause of action arises upon each default, and the obligee can recover in respect of breaches committed within twenty years before action: Aniott y. Holden (1852), 18 Q. B. 593 ; see Sanders v. Coward (1846), 15 M. & W. 4S. A covenant for good right to convey is finally broken if a defect of title exists at the time of conveyance, and the statute thereupon runs. " It is not what is called a continuing breach, any more than not paying money is a continuing breach " : ^ht Bramwell, B., in Sjyoor v. Green (1874), L. E, 9 Ex. 99, at CIIAr. IV.] ACCRUAL OF CAUSE OF ACTION. 208 p. Ill ; Turner v. Moon, [1901] 2 Ch. 828. But if the grantee dies within six years of the conveyance, and damage does not arise until after his death, the right of action devolves on the devisee and not on the personal representative : Kingdon v. Nottle (1813), 1 M. & S. 355 ; (1815), 4 M. & S. 53, as explained by Bramwell, B., in Spoor v. Green ; see Turner v. Moon. A covenant for quiet enjoyment is not broken till disturbance, and the twenty years run from that event : Spoor v. Green (loc. cit., p. 111). But there can be no breach until the interest to which the covenant relates is in existence ; thus if it relates to a future term, there can be no breach till the commencement of the term in possession : Ireland v. Bircham (1835), 2 Scott, 207. A breach of a covenant to keep in repair is a continuing Contimun- breach, and furnishes from day to day a new cause of action so ^i'^*'^'^- long as the breach lasts : S^wor v. Green (loc. cit.). Consequently the lessor can recover damages suffered within twenty years before action : see Maddock v. Mallett (1860), 12 Ir. C. L. E. 173, 193; Morrogh Y. Alleijne (181 S),!^^ 7 'Eq. 4:81. But a covenant to do specified work is broken once for all when the work is 'f'A, i-^^-^f& not done at the stipulated time : Morris v. Kennedy, [1896] 2 I. E. 247, C. A. (2) Where Special Damage must he proved. Where the cause of action lies, not in a specific act or statute nms omission, but in the resulting damage, the statute runs from [[^',"3^^^^ the time when the plaintiff sustains the loss: JJliitehouse v. Fellou-es (1861), 10 C. B. N. S. 765. And this is the case where the conduct of the defendant does not directly infringe any absolute right, personal, proprietary, or contractual, but in fact results in actionable loss to another. Thus, in actions of slander, while there is a special limitation of two years from giaiuicr. the words spoken if these are actionable per se, yet for other words the special damage furnishes the cause of action, and gives the date from which time runs— in this case sis years : Saunders v. Edwards (16(53), 1 Sid. 95 ; Ih-ownc v. Gihhous (1702), 1 Salk. 206 ; iufra, p. 236. Where negligence occurs xegu^.ence. in the course of the fulfilment of a contract, it is regarded as a breach of contract, and the statute runs forthwith. But, othor- wise, negligence does not itself give a cause of action. To be actionable it must be followed l)y actual damage, and the 204 ACTIONS OF CONTRACT AND TORT. [CHAP. IV Nuisance. Seduction. Barratry. Coutimiini. injury. statute runs from the happening of the damage. It is the same ■with an action founded upon a nuisance which interferes with the convenient enjoyment of propert}', but does not constitute a direct infringement of a proprietary right : supra, p. 201 ; with seduction (see Manjs Case (1613), 9 Eep. 113 a), and with barratry: Hibhert v. Martin (1808), 1 Camp. 538. In these cases the damage is the gist of the action, and there is no complete cause of action, and the statute does not run until loss ensues. In general damage must be recovered once for all, and the judgment in the action covers future prospective damage as well as past known damage. Hence the future damage, when it occurs, gives no fresh cause of action. But if the wrongful conduct is in its nature continuing, and is accompanied from time to time by fresh damage, it gives a recurring right of action, and damage can be recovered which has accrued within six years and which has not been already satisfied. Thus a continuing nuisance gives a continually recurring right of action {Battislnll v. Bead (1856), 18 C. B. 696), provided there is a recurrence of special damage to support the action. In Whitchousc V. FeUou-es (1861), 10 C. B. N. S. 765, an alteration of a drain in a highway caused successive floods on adjacent land. " No fresh cause of action," said Williams, J., at p. 784, " arises from each fresh damage, but where there is not only a fresh damage, but a continuance of the cause of damage, such continuance of the wrongful act which caused the damage constitutes a fresh cause of action." {Cf. note (j) to Hoclsden V. Harridgc, 2 Wms. Saund. ed. 1871, p. 166.) Similarly in Dn-cri/ v. Grand Canal Co. (1875), Ir. E. 9 C. L. 194, a wrongful obstruction of a stream, commenced and causing damage in 1866, was continued to 1873, when it caused the flooding of the l^laintiff's land. This was held to give a fresh cause of action in 1873. Damage by subsidence. (3) Where the I>amage is the Sole Cause of Action. "Where land or houses are entitled to support from adjacent or subjacent property, the mere excavation in such property, although possibly prejudicial to the right of support, is not wrongful. If, however, the excavation results in subsidence whereby actual damage is caused, the damage gives a cause of 1 HAP. IV.] MATTERS AFFECTING THE OPERATION OF STATUTE. 21)5 action {Backhouse v. Bonomi, 1858, 9 H. L. C. 503), and the statute runs from the damage and not from the excavation. And since the damage is the sole cause of action, the judgment covers only the damage already suffered, and a fresh cause of action arises with every successive subsidence: Darky Main ColUcnj Co. V. Mitchell (1886), 11 App. Cas. 127. And the damages given in any action cover only the physical damage up to that action. They cannot be extended to cover deprecia- tion in the market value of the property due to apprehension of additional damage in the future : West Leigh Collie rij Co. v. Tannicliffc d- Hampson, Ltd., [1908] A. C. *27. The new cause of action, however, is against the person whose _working caused the subsidence, and if his liability is not enforceable, in conse- t-iuence of his death or otherwise, the plaintiff loses his remedy. He cannot recover damages from other persons in occupation when the subsidence occurs upon the ground that they have done nothing to prevent it : Greenwell v. Loiv Beechhiim Coal Co., [1897] 2 Q. B. 165 ; Hall v. Duke of Norfolk, 48 W. K. 565. If the damage is continuous, the action lies for such part as has occurred within the six years: cf. FairhrotJier y. Bury Sanitari/ Authority (1889), 37 W. E. 544 ; Crumhie v. Wallsend Local Board, [1891] 1 Q. B. 503, C. A. Section III. — Mattees affecting the Oper.\.tion of the Statute. (1) A Person to ,Snc. If at the time when a cause of action would arise there is a person to no person capable of suing upon it, the statute does not ^"®- commence to run. Until there is a person to sue, the cause of action does not fully accrue, and the operation of the statute is postponed accordingly. Hence, if a cause of action in favour of the estate of an Adminis- intestate arises after his death, the statute does not run until tnitur. the grant of administration : Murray v. East India Co. (1821), 5 B. & A. 204; Perry v. Jenkins (1836), 1 My. & Or. 118; Atkinson v. Bradford Build iny Society (1890), 25 Q. B. D. 877, €. A. ; though, upon such grant being made, the title of the administrator relates back to the death : Tharpe v. Stallwood <1843), 5 Man. & Gr. 700; Foster v. Bates (1843), 12 M. & W. 206 ACTIONS OF CONTRACT AND TORT. [CHAP. lY. 22G; see Saff}/n v. Adams (1602), Cro. Jac. 61; Canj v. Stephen- son (1695), Salk. 421. With regard to actions for the recovery of land a different rule is laid down by sect. 6 of the E. P. L. A., 1833, and the statute runs as though there ^Yas no interval between the death and the grant : supra, p. 51. Executor Probate is not necessary to constitute the title of an executor ; it is only evidence of the title. Property vests in the executor immediately on the death {Woolley v. Clarh (1822), 5 B. & A. 744), and he can commence an action before probate. Hence time runs against him immediately upon the cause of action accruing. Where probate is granted of a forged will, and is afterwards revoked and administration granted, "the statute runs against the administrator only from the grant to him " : ( 'hait Kit San v. Ho Fung Hang, [1902] A. C. 257, P. C. (2) A Person to he Sued. A person to It is also nccessary that there shall be a person to be sued. 36 .sue . Hence, where a cause of action arises against the estate of an intestate, the statute does not run till administration is granted. Similarly, since an action cannot be brought against an executor till he either proves or intermeddles, the operation of the statute is correspondingly postponed : Webster v. Webster (1804), 10 Ves. 93; Fhod v. Patterson (1861), 29 Beav. 295. "A cause of action," said Best, C.-J., in Douglas v. Forrest (1828), 4 Bing. 686, "is the right to prosecute an action with effect; no one has a complete cause of action until there is somebody that he can sue." Where an action was founded on fraud not discovered till after the defendant's bankruptcy, since it could not be brought during the bankruptcy, the statute did not run until the bankruptcy was annulled : Tie Crosby (1887), 35 C. D. 266, C. A. And as long as an ambassador of a foreign sovereign is protected by his office from the issue of a writ, the statute does not run against his creditors : Musurus Bey v. Gadban, [1894] 2 Q. B. 352, C. A. ; see Magdalena Steam Navigation Co. v. Martin (1859), 2 E. & E. 94. Where the holder of a promissory note payable on demand, who had taken it as executrix, was a married woman, and her husband was one of the three joint makers, so that she was unable to sue during his lifetime, it was held that it survived to her on his death as a chose in action not reduced into CHAP. IV.] MATTERS AFFECTING THE OPERATION OF STATUTE. '201 possession, and she could sue the other makers within six years from that event : EicJiards v. liicltards (1831), 2 B. & Ad. 447. (8) Ixiuniiufi of Statute is Continuous. If there are comj^etent parties when the cause of action The statute accrues, so that the statute begins to run, it then continues ruus without running notwithstanding any subsequent impediment to bring- interruption. ing an action. The statute once started suffers no check : M'Donncll v. Broderick, [1896] 2 I. E. 136, C. A. It continues to run, therefore, although a party comes under disability. "It is a well-known and settled rule, that, where the time has once begun to run, no subsequent disability, however involuntary, will suspend their operation": Homfraij v. Scroopc (1849), 13 Q. B. p. 512. Or although a party has died intestate. No extension is allowed in respect of delay in taking out adminis- tration {Rhodes v. Smethurst (1840), 6 M. & W. 351 ; Freake v. Cranefddt (1838), 3 My. & C. 499 ; Hou-h-tt v. Lamhrrt (1840), 2 Ir. Eq. E. 254), or by reason of an executor not acting : Pcnni/ V. Bricc (1865), 18 C. B. N. S. 393. And where a husband would be liable for an ante-nuptial debt of his wife, the statute runs in his favour from the accrual of the cause of action against the wife ; not from the date of the marriage (Beck v. Pierce (1889), 23 Q. B. D. 316), although the husband's liability only commences then. (4) Sus2)cnsion of Remedy. If, however, while the statute is running, the person to sue Union of and the person to be sued become the same, its operation is ^''^ suspended : cf. supra, p. 86. Thus where a debtor takes out administration to his creditor, the running of the statute is suspended during the administration. The administration, being an act of law, is not an extinction of the debt, but a suspension of the remedy : Seagram v. Knight (1867), 2 Ch. 628. And where a debt due from an executor is statute-barred after the testator's death, but before probate, the subsequent taking out of probate, since it relates back to the death, saves the debt and makes it assets in the executor's hands : Ingle v. llirhards (1860), 28 Beav. 366. Before the fusion of jurisdiction in equity and common law, Formerly effected by the Judicature Acts, it was possible that a plaintiff iH^L^quity^" 208 ACTIONS OF CONTRACT AND TORT. [CHAr. IV. ini<;lit excludi statute at common law. Agreement not to plead statute. might be restrained in equity from asserting his claim at law until the statutory period had elapsed. In such a case the Court would prevent the plaintiff from being prejudiced by the delay (PuUenci/ v. TTa/'rcH (1801), 6 Ves. 73 ; O'Doucl v. Jhoicnc (1810), 1 Ball & B. 262), and would give him an equitable remedy equivalent to that of which the interposition of the Court had deprived him : Broicn v. Neivall (1837), 2 My. k, Cr. 558 ; cf. Fyson v. Pole (1838), 3 Y. & C. Ex. 266; as to the limits of the principle see East India Co. v. Campion (1837), 11 Bl. N. S. 158, p. 187 ; and see Baylcc v. Brotcne (1847), 10 Ir. Eq. E. 180. And though the court of equity had not actually restrained proceedings at law, yet the pendency of a suit properly brought in equity stopped time from running, so that if it were found necessary to take proceedings at law in aid of the proceedings in equity, the defendant was not allowed to set up the statute : Sturt v. Mdlish (1743), 2 Atk. 610, p. G15 ; Bond V. Hopkins (1802), 1 Sch. & Lef. 413, p. 432 ; Sirdefield v. Price (1827), 2 y. & J. Ex. 73 ; Sapjjle v. Cann (1858), 9 Ir. C. L. E. 1. Thus if ejectment was directed after the statute had run, the defence of the statute was excluded : BlenncrJiassctt v. Day (1812), 2 Ball & B. 104. Or the effect of the proceedings in equity might be to vest a new equitable title under the decree in the plaintiff: Bond v. Hopkins (loc. cit. p. 436). But this result did not follow if the proceedings had been wrongly brought in equity, the plaintiff's sole remedy being at law. Consequently a bill in chancery depending for six years did not save the statute as regards a simple contract debt : Lake v. Hayes (1736), 1 Atk. 281 ; contra, Anon. (1682), 1 Vern. 73. Inasmuch as the same Court now disposes of both legal and equitable rights affecting the subject of claim, such cases as the above have ceased to be of practical importance. An agreement that a mutual account shall be taken without regard to the Statute of Limitations has been held to be an agreement for valuable consideration and enforceable : Lade v. Trill (1842), 6 Jur. 272. But in general a defendant is not debarred from pleading the statute by an agreement not to do so, though the agreement, if supported by consideration, will give a new ground of action : Beeves v. Hcarne (1836), 1 M. & W. 323 ; East Lidia Co. v. Paul (1849), 7 Moo. B.C. C, p. 112 ; or might be made the subject of a counterclaim, and be disposed of in the plaintiff's action : Judicature Act, 1873 (s. 24 (3)). CHAP. IV.] EFFECT OF THE STATUTORY BAR. 209 It has been held that a covenant in a deed of arrangement Deed of that the creditor shall not sue the debtor during its currency ° operates to suspend the statute until the period contemplated by the deed has elapsed : O'Brien v. Osborne (1852), 10 Hare, 92 ; Iven v. Elwes (1854), 3 Drew. 25 ; c/. Fuller v. Redman (No. 2) (1859), 26 Beav. 614. But this is opposed to the principle that the statute once started, continues to run without interruption — save in the case of union of the parties by act of law (siqjra, p. 207) — and the correct rule appears to be that, upon a debtor arranging with his creditors for payment of their debts in a particular manner, there is an implied promise by him to pay the whole debt in the event of default under the deed, and upon default a fresh cause of action arises upon this promise ; though as a matter of pleading it is sufficient if the creditor sues on the original debt : Irving v. Veitch (1837), 3 M. & W. 90 ; Re Stock (1896), 66 L. J. Q. B. 146 ; McDonnell v. Broderick, [1896] 2 I .E. 136, C. A. Such an action lies after default: Edwards v. Coomhe (1872), L. E. 7 C. P. 518 ; Re Hatton (1872), 7 Ch. 723 ; though not before : Slater v. Jones (1873), L. E. 8 Ex. 186. Section IV. — Effect of the Statutory Bar. (1) Debt not Extinguished. The Limitation Act, 1623, and the Civil Procedure Act, statute only 1833, do not extinguish the debt, but only bar the remedy. '^^^^®°^'' ^• Hence, though the debt cannot be recovered by action if the debtor pleads the statute, nevertheless it remains an existing debt (Wainford v. Barker (1697), 1 Ld. Eaym. 232), and can be made available whenever the creditor has it in his power to set it up without resorting to an action. Thus, where a creditor has a lien upon goods in his posses- lAo.n sion, he can retain them until payment, notwithstanding that an action to recover the debt would be barred. *' I am of opinion," said Lord Eldon, in Spears v. Hartley (1800), 3 Esp. 81, "that though the Statute of Limitations has run against a demand, if the creditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of the lien " : cf. Re Bowes, W. N. (1889), p. 53. So a solicitor can avail himself of his lien on a judgment obtained for a client (Jliggins v. Scott (1831), 2 B. & Ad. 413), or on papers of his client in his possession (Re Broomhcad t.l.a. p 210 ACTIONS OF CONTRACT AND TORT. [CHAF. IV Taxation of costs. (1847), 5 D. & L. 52), to obtain payment of C3sts more than six years old. Where a solicitor's bill is directed to be taxed for the purpose of ascertaining the amount covered by his lien, the taxation will extend to statute-barred items : Curwen v. Milburn (1889), 42 C. J). 424, C. A. ; and it is the same apparently under every order for taxation. The bill is to be taxed -without regard to the statute, leaving to the Court the question whether statute-barred costs should be paid, and under the common order for taxation which contains a submission by the client to pay, the entire costs found due must be paid. If the client wishes to raise the statute, he must do so by applying for a special order : lie Margctts, [189G] 2 Ch. 263. But a charging order for costs under sect. 28 of the Solicitors' Act, 18G0 (23 & 24 Vict. c. 127), cannot be made as to costs which are statute-barred. The section contains a proviso to this effect. Retention on account of statute-barred debt as against legatee. (2) Deduction hy Executor. Upon a similar principle, where a pecuniary or a residuary legatee is indebted to the testator's estate, but the debt is statute-barred, the executor can obtain payment of the debt by bringing it into account on paying over the legatee's legacy or share of the residue.; in other words, the debt is deducted from the legacy : Courtenan v. Williams (1844), 3 Hare, 539 ; Poole v. Poole (1871), 7 Ch. 17 ; but not where a legatee under the will of a testator is sole residuary legatee of a debtor to the tes- tator's estate : lie Bruce, W. N. [1908], p. 209, C. A. The rule applies also where a share of the estate of an intestate is payable to one of the next-of-kin who is a debtor to the estate : Be CordiveWs Estate (1875), 20 Eq. 644 ; and it enables trustees of a mixed fund, composed of the proceeds of residuary real and personal estate, to deduct a statute-barred debt due from a residuary legatee from the entire share coming to him : Be Akerman, [1891] 3 Ch. 212. It was suggested by Kekewich, J., in this last case, that the amount of the debt is not, properly speaking, "retained" under such circumstances. The fund in which the legatee is to share includes the debt, and to that extent he already has his share in hand. But in the case of a specific legacy, since the indebted legatee has no part of this in hand, he is entitled to receive the whole without regard to the CHAP. IV.] EFFECT OF THE STATUTORY BAR. 211 debt : Ballard v. Marsden (1880), 14 C. D. 374. To bold otberwise would be not deduction or retention, but set-off, wbicb is not 23ermissible wbere tbe statute can be pleaded : Eaiclei/ v. Bawleij (1876), 1 Q. B. D. 460, C. A. Similarly, executors of a creditor "wbose debt is statute-barred cannot set tbis off against damages recovered against tbem for waste committed by tbeir testator : Dingle v. Coppen, [1899] 1 Ch. 726. And wbere tbere is an intestacy as to a sbare in a mixed fund, tbougb a debt due from one of tbe next-of-kin can be deducted from tbe sbare of personalty coming to bim as next-of-kin, no part can be deducted from tbe proceeds of real estate wbicb go to bim as heir-at-law. Sucb proceeds are not part of a fund to wbicb tbe debt contributes : Re Mihies (1885), 53 L. T. 534. Wbere a testator expressly directs tbat debts due from cbildren shall be deducted from tbeir legacies, the direction extends to statute- barred debts : Rose v. Gould (1852), 15 Beav. 189. (3) Payment hi/ Executor. Since a statute-barred debt is still an existing debt, an executor Payment of or administrator is at liberty to pay it {Re Garratt (1870), 18 £"3 b*''''"'"^ W. E. 684 ; Re Rownson (1885), 29 C. D. p. 362, C. A.), and he execuJ. may do this although the personal estate is insufficient, so that other debts are thrown on the real estate : Lowis v. Rumnei/ (1867), 4 Eq. 451. Similarly, a trustee may pay statute-barred costs : Budgett v. Budgett, [1895 J 1 Ch. 202. But this power of paying a debt ceases upon tbe debt being judicially declared to be statute-barred, and the executor cannot disregard the pro- tection thus formally given to the estate : Midgleij v. Midgley, [1893] 3 Ch. 282, C. A. Upon an order being made for administration, any bene- rayment after iiciary can require the statute to be set up against a creditor adminis- who claims to prove in respect of a statute-barred debt : tShewen V. Vanderhorst (1831), 1 E. & M. 347 ; 2 E. & M. 75 ; Moodie v. Bannister (1859), 4 Drew. 432 ; and so can another creditor : Fuller V. Redman, No. 2 (1859), 26 Beav. 614. For this purpose an originating summons, upon which the question of paying a debt arises, has the same effect as an order for administration, and a beneficiary can insist on the statute being set up : Re ]Ven- liam, [1892] 3 Ch. 59 ; though not against costs which an executor or trustee has himself incurred : Budgett v. Budiptt, [1895] 1 Ch. 202. But a mere order for an account under 212 ACTIONS OF CONTRACT AND TORT. [CHAP. lY Creditor plaintiff" in ad- ministratiou. Beneficiary not requiring statute to be set up. Retainer by executor. Statute set up by some beneficiaries only. Pi. S. C. 1883, Orel. 15, r. 1, is not sufficient to take away the executors' right to pay a statute-barred debt : Be Barrett (1889), 43 C. D. 70. There is an exception, however, in favour of a creditor at whose suit the order for administration is obtained, and if the executor or administrator has allowed the order to go without setting up the statute against him, this cannot be done after- wards by a beneficiary (Briggs v. JVilson (1854), 5 D. M. & G. 12), or by another creditor: Fuller v. Redman, No. 2 (suj^ra) ; Adams Y. Waller (1866), 35 L. J. Ch. 727. This is the plaintiff creditor's reward for undertaking a litigation of which all parties reap the benefit. Similarl}^ a statute-barred creditor can obtain letters of administration to the debtor's estate : Coombs v. Coombs (1866), 1 P. & D. 288. If no beneficiary or creditor requires the statute to be set up in administration proceedings, the executor need not set it up : (Ex 2)artc Dcivdneij (1809), 15 Ves. p. 498), nor will the Court insist on its being set up in favour of absent beneficiaries, if those w4io are present consent to the debt being paid: Alston v. Trollope (1866), 2 Eq. 205. After an order for administration, or its equivalent, an executor cannot by acknowledgment revive a debt as against parties interested in the estate : Phillips v. Bcal (1862), 32 Beav. 26. And just as an executor can pay a statute-barred debt of another person, so he can exercise his right of retainer to pay his own statute-barred debt : Ilill v. Walker (1858), 4 K. & J. 166 ; and, even after an order for administration, effect will be given to this right as against money paid into Court by the executor (StaJdsehmldt Y.Lett (1853), 1 Sm. & G. 415; SJtarman V. Budd (1858), 4 Jur. N. S. 527), and constructively still in his possession : see Pulman v. Meadows, [1901] 1 Ch. 233 ; though a fund in Court, over which he has never had control, will not be paid out to him so as to render it subject to his right to retain a statute-barred debt : Trevor v. Huteliins, [1896J 1 Ch. 844, C. A. Legatees or next-of-kin cannot defeat this right by setting up the statute : Clinton v. Bmphi/ (1847), 10 Ir. Eq. Pi. 139.. As already intimated, a statute-barred creditor can obtain an. order for administration provided the executor does not set up the statute ; and such an order can be extended to administration of the real estate, save as to the interests of devisees who are parties, and who set up the statute : Fordham v. Wallis (1852)., €HAP. IV.] EFFECT OF THE STATUTORY BAR. 213 10 Hare, 217. Where some devisees set up the statute and others do not, it has been held that the latter must pay the whole debt out of their shares without ftuy right to enforce contribution from the former: Fordham v. WalUs (loc. cit. p. 231). Since, however, there is a joint liability on the devisees, it is possible that a plea of the statute by one will be available for all : Morleij V. Morleii (1855), 5 D. M. & G., p. 625 ; He Laccy, [1907J 1 Ch. 330, C. A. (4) Statute-harrcd Debts in Bankruptcy. A statute-barred creditor may present a petition in bank- Bankruptcy ruptcy and obtain a receiving order, if the statute is not set up stetute^bancd by the debtor ; and no objection can subsequently be taken by a creditor. third party to the validity of the proceedings : Qiiantock v. Eiujland (1770), 5 Burr. 2628 (decided on 5 Geo. 2, c. 30, s. 23, which, like the Bankruptcy Act, 1883, s. 6, requires only an existing debt) ; but the debtor can object : Gregory v. HarrUl, (1826), 5 B. & C. 341 ; Ex imrte Tynte (1880), 15 C. D. 125. And i"t would seem that the debt of the petitioning creditor is finally proved on the petition, so as to entitle him to rank for payment in the bankruptc}'. But as against other creditors the trustee in bankruptcy is bound to plead the statute, and hence their debts are not capable of proof: Ex parte Dewdncy (1809), 15 Ves. 479 ; He Clendinnimj (1859), 9 Ir. Ch. E. 284 ; Re Hephurn (1884), 14 Q. B. D. p. 400 ; see Ex parte Boffey (1815), 19 Ves. 468. As to creditors not already barred at the commencement of the bankruptcy, the receiving order stops the running of the statute, since the trustee holds in trust for creditors not statute-barred : ■infra, p. 318. A creditor, who has a lien for a statute-barred debt, may exercise his rights under the lien notwithstanding the bankruptcy of the debtor : Be Hepburn (ubi supra). (5) Debts barred by Foreign Statutes. Where a foreign statute of limitations bars the remedy only, Forfio:ii in the same manner as the Limitation Act, 1623, but does not limitations. ■extinguish the debt, its operation is confined to an action brought in the courts of the foreign state. Even though an action has been brought there and dismissed on the ground of the local Statute of Limitations, yet an action will still lie in tliis country, if the period of limitation here has not elapsed. 2M ACTIONS or CONTRACT AND TORT. [CHAP. lY Thus in Harris v. Quine. (1869), L. E. 4 Q. B. 653, an action which had failed in the courts of the Isle of Man, where the limitation was three years, was held to be competent here within six years of the accrual of the cause of action : see British Linen Co. v. Drummond (1830), 10 B. & C. 903 ; Huher v. Steincr, 2 Bing. N. C. 202 ; D ACTIONS OF CONTRACT AND TORT. [CHAP. IV, not run in his favour till presentment. Thus where the note is payable "at sight," presentment is necessary and the statute does not run in favour of the maker till presentment ; Dixon v. Nuttall (1834), 1 C. M. & E. 307. Notes payable Where the note is payable at a fixed date, the statute runs at fixed datu, ^y^ favour of the maker from such date, allowing for the days of grace, and in favour of an indorser from receipt of notice of dishonour, as in the case of a bill of exchange : supra, ^. 219 ; and where the note is payable at a fixed period after demand or notice or sight, presentment is necessary to start the fixed period, and then the statute runs from the end of the period in favour of the maker, and from receipt of notice of dishonour in favour of the indorser : Thorpe v. Coomhe (1826), 8 D. & E. 347 ; Thorpe v. Booth (1826), Ey. & M. 388; Holmes v. Kerrison (1810), 2 Taunt. 323 ; Moore v. Petehell (1856), 22 Beav. 172. Payment of interest is evidence that a debt is due, and therefore evidence, also, that a demand has been made : Be Butherford (1880), 14 C. D. 687, 689, C. A. ; Waij v. Bassett (1845), 5 Hare, 55. or after demand Liability for conversion. (5) Conversion and Detention. Conversion is " an unauthorized act which deprives another of his property permanently or for an indefinite time " : ^:>er Bramwell, B., in Hiort v. Bott (1874), L. E. 9 Ex. p. 89. And liability for the conversion arises equally whether the wrong- doer has or has not notice of the title of the true owner, or whether he acts on his own account or simply as agent. Thus a clerk, who innocently forwards to his employer the goods of a stranger {Stephens v. Ehvall (1815), 4 M. & S. 258) ; a broker, who actively assists in the transfer of goods to his principal {Hollins v. Fowler (1875), L. E. 7 H. L. 757) ; and an auctioneer, who sells and delivers goods at the instance of a person who has no title {Consolidated Co. v. Curtis, [1892] 1 Q. B. 495), are all liable for conversion at the suit of the true owner. No such liability, however, follows upon a mere sale unaccompanied by delivery of possession {Lancashire Wagon Co. V. Fitzhugh (1861), 6 H. & N. 502); or where the broker or auctioneer simply acts as intermediary between parties who themselves transfer and accept the dominion over the goods : BQQ per Bramwell, L.J., in Cochrane v. Bijmill (1879), 27 W. E. €IIAP. IV.] EFFECT OF THE STATUTE IX PARTICULAR ACTIONS. 2Ti 776, C. A. Where wine in wood was deposited with a bailee, the botthng and consumption of part was not a conversion of the whole : Fhilpott v. Kelly (1835), 3 A. & E. lOG. The action for a conversion is barred in six years from the Time runs conversion. Thus, where a person fraudulently pledges the title exlinersion. deeds of another, the statute runs from the pledging : Miller V. Dell, [1891] 1 Q. B. 468, C. A. ; and it makes no difference that the plaintiff did not know of the conversion till after the statutory period, provided the defendant has not practised any fraud to prevent him from obtaining knowledge earlier : Granger v. George (1826), 5 B. & C. 149. If the goods of A. are by his consent being used by B., there is a conversion upon demand for return of the goods and refusal ; or upon any other specific act in derogation of A.'s ownership (Moiitagiie v. Sand- wich (1702), 7 Mod. 99), such as a sale by B. ; and the statute then runs : Edwards v. Clay (1860), 28 Beav. 145. When the same chattel is the subject of separate acts of Successive conversion on the part of successive takers, the fact that the ^""v^"^^!*^^^- statute has run in favour of the first wrongdoer does not bar an action against another person by whom a later act of con- version was committed. Thus where B. fraudulently deposits A.'s deeds with C. to cover an advance, C.'s liability is distinct from that of B,, and it has been held that, if he takes innocently, he commits by the taking no conversion, and the statute does not begin to run in his favour until demand for redelivery and refusal : S])ackman v. Foster, 11 Q. B. D. 99 ; Millers. Dell, [1891] 1 Q. B. 468. But this principle is probably confined to title- deeds, as to which, from their close connection with the land, an owner in possession of the land is placed in a specially favourable position. Ordinarily the mere receipt of chattels, with the intention of exercising over them the rights of an owner or pledgee, constitutes a conversion (see iier Lord EUenborough in M'Comhie v. Davies, 6 East, 538), and the statute then runs. Its operation is not postponed till there is a sale or other specific dealing with the property : Dem/s v. Shuckhurgh (1840), 4 Y. & C. Ex. 42. Where stock or shares in a company have been wrongfully Wnmgful transferred out of the name of the true owner, no complete giia^es^^ ^ cause of action arises against the company until the refusal of the company to recognize the owner. Whatever the state of the register, the shares are all the time under the control of 224 ACTIONS OF CONTRACT AND TORT. [CHAP. IV Detention. Determina- tion of bail- ment. Crown not barred. the company. The statute, therefore, runs from such refusal, and not from the time of the transfer : Barton v. North Stafford- shire By. Co. (1888), 38 C. D. 458, p. 463. Where the action is founded upon wrongful detention of chattels, the cause of action arises and the statutory period of six years begins to run, from the time when the detention becomes unlawful. "Where title-deeds are held by one who is in possession of the land to which they relate as apparent owner, the custody is prima facie lawful, and there is no wrong- ful detention and no cause of action, until demand and refusal : Plant V. Cotterill (1860), 5 H. & N. 430. Where goods have been entrusted to a bailee or other person whose duty it is to deliver them up on the determination of his lawful custody, and they are converted by him while the custody is lawful, the owner has an election to sue at once for the conversion, or to wait for the proper time for delivery of the goods, and then sue for the wrongful detention. Hence the latter action is not barred by the lapse of more than six years from the conversion: Willdnson v. Veritij (1871), L. E, () C. P. 206 ; but see Hinchcliff'e v. Sharp (1898), 77 L. T. 714. (6) Croicn Debts. The Crown is not bound by the Limitation Act, 1623, and^ in accordance with the maxim "nullum temjms occurrit regi,'' the claim of the Crown against its debtor is not liable to be barred by lapse of time : B. v. Morrall (1818), 6 Pr. 24. Where a debt due from A. to the Crown's debtor, B., is attached by the Crown by legal process, and the statute has then run in favour of A. as against B., so that B. could not recover the debt, the Crown also is barred. *' The Crown," said Wood, B., in B. v^ JMorrall (supra), "is certainly not bound by any statute, so that it might be pleaded in bar by its immediate debtor. But in this case, the claim of the Crown is only a derivative right, and it must therefore stand in the same situation as its principal." But if the statute has not fully run at the time when the debt vests in the Crown, it thereupon ceases to run so long as the debt remains in the Crown: Lambert v. Taylor (1825), 4 B. & C. 138. If the Crown assigns the debt, so as to vest it again in the hands of a subject, it is not clear how the assignee's right of action will be affected by the statute. This occurred in Lam- berts. Taylor, but, owing to the form of the pleadings, the point CHAP. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 225 was not discussed. In principle it "would seem that the statute would be suspended during the Crown's ownership of the debt, •and that the assignee would only be allowed the period un- expired at the date of vesting in the Crown. Time does not run in favour of the Crown, and there is no statutory limitation to a petition of right: llustomjce v. The Queen (187(>), 1 Q. E. D. 487. In the case of a claim to indemnity owing to an error or indemnity omission in the Land Eegister, or to the making of an entry by J^J"*^^*^'.^"?''. or in pursuance of fraud or mistake, the claim is deemed to be a simple contract debt, and, in the event of such a claim arising on the part of the Crown, the Limitation Act, 1G23, applies to the Crown in the same manner as to private persons. The cause of action is deemed to arise at the time when the claimant knows, or but for his own default might know, of the existence of his claim : Laud Transfer Act, 1897 (60 & 01 Vict. c. 65), s. 7 (7). Claims to estate, succession, and legacy duties are subject Death duties, io a six years' limitation as follows : — (i.) Succession Duty vjwn Property imssing under a Document other than a Testamentary Document admitted to Probate. An attested copy of the document must be deposited with the Inland Eevenue Commissioners and a receiiDt obtained. If this is done no person is liable for payment of any duty under the document after the expiration of six years from the date of notice to the commissioners of the fact which gave rise to an immediate claim to duty: Customs and Inland Eevenue Act, 1889 (52 Yict. c. 7), s. 13. in.) Succession Duty upon Property p)assing under Testamentary Documents admitted to Probate or Letters of Administration, and Legacy Duty. No person is liable for these duties after the expiration of six years from the date of the settlement of the account in orespect of which the duty is payable, where such account was in all respects a true and full account, and contained all the facts material to be known by the commissioners for the ascertainment of the rate and amount of duty ; and no trustee, •executor, or administrator is, after the expiration of such six T.L.A. Q 226 ACTIONS OF CONTEACT AND TORT. [CHAP. lY years, liable to such duty, if it is proved to the satisfaction of the commissioners that the account rendered was correct to the best of his knowledge, information, and belief: Customs and Inland Kevenue Act, 1889 (52 Vict. c. 7), s. 14. Heir a])parent. (iii.) Estate Thity. The provisions of the Act of 1889 just referred to apply to estate duty in the same manner as to succession duty, but an account is not settled within sect. 14 until the time for payment of the duty on such account has arrived : Finance Act, 1894 (57 Vict. c. 30), s. 8 (2). As to the limitation in favour of purchasers and mortgagees, see supra, p. 163. Particulars of any debt or demand against the heir-apparent to the throne, having a separate establishment, must be delivered within ten days after the expiration of the quarter in which the debt or demand was incurred ; in default, every such debt or demand is barred both at law and in equity, and every security given in consideration thereof is void ; when such particulars have been properly delivered, the creditor may sue as in the Act provided within three calendar months after delivery of the particulars, but not afterwards : 35 Geo. 3, c. 125 (ss. 7, 9). Survival of actions of tort. Civil Pro- cedure Act, 1833, s. 2. (7) Deceased Persons. Under 4 Edw. 3, c. 7, and the equitable construction placed upon it, a right of action for injuries to personal estate survives to the executors or administrators of the owner : Williams on Executors, 10th ed. pt. ii., bk. iii., ch. 1, s. 1, pp. 606, 607. But,, prior to the Civil Procedure Act, 1833 (3 & 4 Will. 4, c. 42), this was not so as regards real estate ; nor did an action against a tortfeasor in respect of injuries to real or personal estate survive. That statute gives a remedy for or against the personal representatives in such cases, and also imposes special limitations, as follows : — " And whereas there is no remedy provided by law for injuries to the real estate of any person deceased, committed in his life- time, nor for certain wrongs done by a person deceased in his lifetime to another in respect of his property, real or personal ; for remedy thereof be it enacted, that an action of trespass or CHAr. IV.] EFFECT OF THE STATUTE IN PARTICULAE ACTIONS. 227 trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person ; and the damages, when recovered, shall be part of the personal estate of such person ; and further, that an action of trespass or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects of such person ; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person." Action by executors, etc., for injury to real estate within six months before death, if brought with- in one year after dcatli. Action against executors, etc., for in- jury to real or personal property within six months before death, if brought with- in six months of assuming administra- tion. The same provision is made in Ireland by sect. 31 of the Debtors (Ireland) Act, 1840 (3 & 4 Vict. c. 105). The section gives an action to the personal representatives of a deceased person for injuries to his real estate in his lifetime for which he might have brought an action ; in other words, a right of action for tort to real estate now survives ; the injury, however, must have been committed within six calendar months before the death, and the action must be brought within a year after the death. This special limitation takes the place of the six years' limitation, running from the date of the injury, which would otherwise appl3^ The section also gives an action against the personal repre- sentatives of a deceased person for torts committed by him within six calendar months before his death to another in respect of thajt other's real or personal property, the action to be brought within six months of the commencement of the administration. Where the same injury gives rise to a form of action w4iich survives, and also to an action under the statute, the recovery of damages for six months before the death in an action under the statute does not preclude the recovery of damages for the prior period in the other action. Thus where the injury is the tortious taking and soiling of coal from the Injury to real estate of deceased. Injury by deceased. 228 ACTIONS OF CONTRACT AND TOET. [CHAP. IV. Action com- menced in life of wrongdoer. Continuing injury. Fatal accidents. land of the deceased, the recovery of damages for six months under the statute leaves the personal representative at liberty to recover the proceeds of sale for the prior period in an action for money had and received : Powell v. Bees (1837), 7 A. & E. 420. Where a tenant for life, who is liable to repair, leaves the premises out of repair at his death, the remainderman can bring an action against his executor under the statute : JVood- house V. Walker (1880), 5 Q. B. D. 404. Although an action has been commenced against the Avroug- doer during his life, yet the limitation of the statute is strictly applied ; and if at the time of his death more than six months have elapsed from the commission of the injur}^ the action as against his executors is barred: Kirk y. Todd (18S2), 21 C. D. 484, C. A. Where the act complained of forms a continuing injury, as in the case of an obstruction of light, and an action has been begun by the person injured in his lifetime, the executor can obtain an order to carry on the proceedings, and can recover damages for the six months before the original plaintiff's death : Jones V. Simes (1890), 43 C. D. 607. Similarly, where it is the wrongdoer who has died, an action will lie against his adminis- trator within six months of the grant of administration, although t he building which causes the obstruction was erected more than six months before the death. Since the injury is a con- tinuing one, it is committed within the six months as well as before : Jenks v. Viscount Clifden, [1897] 1 Ch. 694. In the event of the death of any person in consequence of the wrongful act, neglect, or default of another, an action for the benefit of certain relatives of the deceased may be brought by his executor or administrator against the person responsible; but any such action must be commenced within twelve calendar months of the death : Fatal Accidents Act, 1846 (9 & 10 Yict. c. 93), ss. 1-3. (8) Executors. Dcvadavit. A devastavit by an executor — that is, an improper application of assets whereby a creditor of the testator is prevented from recovering his debt — is a tort to the creditor in respect of his personal estate, and, in an action against the executor personally, the limitation upon " case" applies, and the action is barred in CIIAr. IV.] EFFECT OF THE STATUTE IN PATITICULA.II ACTIONS. 229 six years : Thovne v. Kerr (1855), 2 K. & J. 54 ; Re Gale (1883), 22 C. D. 820; Lacons v. Wormall [1907], 2 K. B. 350, C. A. But where the executor is a defendant to proceedings in his Administia- representative capacity a different rule applies. The assets of the testator which he has not accounted for are deemed to b9 still in his hands, and the Limitation Act, 1623, does not in such proceedings protect him against a devastavit which is more than six years old. In other words, he cannot set up his own devastavit and then claim the benefit of the statute in respect of it : Re Marsden (1884), 26 C. D. 783 ; Re Hyatt (1888), 38 C. D. 609 ; though, provided the devastavit has not consisted in mis- appropriation by the executor, he could now avail himself of the Trustee Act, 1888, s. 8 {infra, p. 280). (9) Extraordinary Traffic Expenses. It was provided by sect. 23 of the Highways and Locomotives (Amendment) Act, 1878 (41 k 42 Yict. c. 77), that extra- ordinary traffic expenses, certified by the surveyor to a highway authority, might be recovered in a summary manner from the person by whose order the traffic had been conducted ; and by sect. 36 the Summary Jurisdiction Acts were made applicable. The six months ran from the date of the certificate, and when this period had elapsed, expenses included in that certificate (if it was valid) could not be recovered under a subsequent certificate : Wirral Highway Board v. Newell, [1895] 1 Q. B. 827 ; of. White v. Colson (1881), 46 J. P. 565 ; Pool & Forden Highway Board v. Gunning (1882), 51 L. J. M. C. 49. The above section was amended by sect. 12 of the Locomotives Act, 1898 (61 & 62 Vict. c. 29), which provided :— (a) that extra- ordinary traffic expenses should cease to be recoverable in a summary manner, but should be recovered, if not exceeding ^250, in the county court, and, if exceeding that sum, in the High Court ; [h) that proceedings for their recovery should be commenced within twelve months of the time at which the damage had been done, or, where the damage was the con- sequence of any particular building contract, or work extending over a long period, not later than six months after the completion of the contract or work; and (c) that for the words "by whose order" there should be substituted "by or in consequence of whose order." This last amendment rendered the highway -30 ACTIONS OF CONTRACT AND TORT. [CHAP. IV. authority liable in respect of work done by contractors : Epsom District Council v. London County Council, [1900] 2 Q. B. 751. Periodof The effect of sub-clause (h) is not to introduce t^YO independent limitation. ,••, .• e i ^ ,-, n -1- limitations ; one oi twelve months for ordinary cases, and one of six months for work extending over a long period. In all cases the highway authority who are complaining may bring the action within twelve months after the damage has been done, and recover for damage done within that period. And further, and in addition to this, they may recover for damage which has not been caused within the twelve months, provided the damage is "the consequence of any particular building ■contract or work extending over a long period," and in that case the action must be commenced not later than six months after the completion of the contract or work : Kent Countii Council \. Folkestone Corporation, [1905] 1 K B. 620, C. A. ; per Stirling, L.J., at p. 636. The fact that the twelve months' limitation •applies to all cases was overlooked in Epsejm District Council v. London County Council {supra), where no damages were allowed in respect of a particular building contract which had been completed more than six months before action, although damage had been suffered within the twelve months. The expression "work extending over a long period" refers to the particular operation causing the damage ; it does not include the entire operations undertaken by the defendants where these involve a series of independent works : Kent County Council V. Folkestone Corporation (sujn-a). The expression does not cover contracts for the haulage of stone required by a local authority for its general purposes : Bromley District Council v. Croydon Corporation, [1908] 1 K. B. 353, C. A. ; nor is the period extended by a provision that the work shall remain at the risk of the contractors for a year after completion : Lancaster District Council Y. Fisher, [1907] 2 K. B. 516, C. A. (10) Foreiyn Judgment. Eanks as An action brought in this country to enforce a foreign judg- 3'^ ^°''' liient ranks as an action on simple contract, and it is barred in six years from the judgment : see Dupleix v. De lioren (1705), 2 Vern. 540. The liabilit}' of the defendant arises upon an implied contract to pay the amount of the foreign judgment : Grant v. Easton (1883), 13 Q. B. D. p. 303, C. A. CIIAr. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 231 (11) Goods Sold. If goods are sold to be paid for on demand, the statute begins Sale for cash ; to run immediately upon the making of the contract : Jackson v. Ogg (1859), Johns. 397, per Wood, Y.C. ; if they are sold on stated credit, the statute runs from the end of the stated period : on credit. Helps V. Winterhottom (1831), 2 B. & Ad. 431. (12) Guarantee. An action lies on a guarantee or a contract of suretyship as Surety, soon as the principal debt is due and is not paid, and the statute thereupon runs in favour of the guarantor or surety. The fact that the creditor allows a loan to remain at interest after the due date for repayment does not prevent the statute from running in favour of the surety ; if any agreement not to sue can be implied, it is only an agreement not to sue for a reason- able time : Hentoti v. Paddison (1893), 68 L. T. 405. Probably, however, no such implication, so as to postpone the statute, would be made. But by express stipulation the accrual of the surety's liability may be postponed to a later date than the due date of the debt, as where it is a term of the guarantee that a specified time — such as three months — shall be allowed for proceedings against the principal debtor before the guarantor is called upon to pay, and then the statute runs from the end of this period : Holl v. Hadleij (1835), 2 A. & E. 758. Where there is no fixed date for payment of the debt, the Accrual of due date for the purpose of the statute will be determined by the circumstances. Thus if the debt is a matter of account between the creditor and the principal debtor, the action on the guarantee arises as soon as all the facts on which the adjustment of the accounts depends are ascertained, notwithstanding that the actual adjustment may be delayed by litigation : Colvin v. BucJdc (1841), 8 M. & W. 680. A joint and several promissory note by A. and B., payable on demand, with an accompanying memorandum that it is to cover A.'s banking account, is a security for the fluctuating balance, and the statute does not run in favour of B. while the account is open : Hartland v. Juhcs (1863), 1 H. & C. 667. If the guarantee is to cover advances by the bank, the claim of the bank will be barred after six years from the date of the last advance, but the guarantor may still Op,'> ACTIONS OF CONTRACT AND TORT. [CHAr. IV. be liable for interest and banking charges accrued since : Parr's Banlnufi Co. v. Yates, [1898J 2 Q. B. 460, C. A. The right of the creditor against the surety is not dependent upon his right against the principal debtor ; hence the fact that the statute has run in favour of the latter does not operate as a release to the surety so as to entitle him to the return of property of his held by the creditor as security: Carter y. White (1883), 25 C. D. 666, p. 672, C. A. Debts due from Poor Law (xuardians. 22 & 23 Vict. c. 49, s. 1. Three months from end of lialf-vear in Avhicli debt incurred. Sect. ;j. Time runs against loans on rates from due date or from twelve months after advance. Sect. 4. Judgment to be satisfied if due diligence used. Sect. 5. Solicitors' bills. (18) Guardians (Poor Law). The Poor Law (Payment of Debts) Act, 1869 (22 & 23 Vict. 49), provides to the following effect : (b) Any debt, claim, oi' demand lawfully incurred by or become due from guardians shall be paid within the half-year in which the same shall have been incurred or become due, or within three months after the expiration of such half-year, but not after- wards ; the commencement of such half-year to be reckoned from the time when the last half-year's account shall or ought to have been closed according to the order of the Poor Law Board ; provided that the Poor Law Board may extend the time within which payment shall be made for a period not exceeding twelve months after the date of such debt, claim, or demand. In the case of loans to guardians charged on the jioor rates, and made payable on a day certain, the above time of limitation runs from that day ; and if not made payable on a day certain, then at the end of twelve months from the advance ; in^ the case of debts payable by instalments, each instalment is- payable within one year of its due date; with power for the Board in any of these cases to allow an extension of six months. If any person claiming any debt or demand shall hava commenced proceedings in any court of law or equity, or before any justice or other competent authority, within the time hereinbefore limited, or within the time to which the Poor Law Board may grant extension, and shall with due diligence prosecute such proceedings to judgment, such judgment shall be satisfied by the guardians, notwithstanding that it is recovered after the expiration of the period. Solicitors' bills are not to be paid till the final de- termination of the suit or cessation of the retainer; but the l)ill of costs is to be taxed and paid within one year after such determination or cesser, unless the Poor Law Board extend the time for a period not exceeding six months ; if the solicitor takes. (6) These sections are not quoted in full. CIIAr. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 233 proceedings within such time, he has the same rights as under sect. 4. As to what is a prosecuting with due diligence within sect. 4, see Ithodes v. Patelei/ Bridge Union (1884), 51 L. T. 235. Since under sect. 1 the debt cannot be paid after the time i^ffect of the limited, it cannot be sued for after that time: Baker v. Guardians of BiUcricaij Union (1863), 2 H. & C. 642. The words "claim and demand" are not limited to claims arising under contract ; they cover everything, and the limitation ajDplies, therefore, to weekly sums ordered by justices to be paid by guardians for the maintenance of a lunatic: Ilcu. v. Guardians of Stepney Union (1874), L. E. 9 Q. B. 383. But the Act does not extend to the debts of guardi ans in their character of a rural sanitary authority : Dearie v. Petersfield Union (1888), 21 Q. B. D. 447, C. A. The effect is to impose a limitation of three months from the end of the half-year in which the debt accrues : S. C. ; but no debt accrues due until the amount is ascertained: SharpingtonY. Fulhain Guardians, [1904] 2 Ch. 449. As to costs payable by guardians to adverse litigants no Costs, debt accrues due until taxation : Midland Rij. Co. v. Edmonton Union, [1895 j A. C. 485 ; and time runs from the date of the certificate, not from the order for payment of costs : West llani Union v. Cliurehwardens cf St. Matthen-, Bethnal Green, [1896] A. C. 477. This applies to costs generally, not only to House of Lords costs : Manchester, Sheffield and Lincolnshire liailicay Co. v. Doncaster Union, [1897] 1 Q. B. 117, C. A. The application to tax is not a commencement of proceedings within sect. 4. The proceedings there referred to, which are to be commenced within the time limited, must be such as will result in a judgment or in a final settlement equivalent to a judgment : West Hani Union v. Churchwardens of St. Mattheu-, Bethnal Green (s//pra), 2>t'r Lord Herschell, L.C., at p. 490, (14) Indonnitij. Under a contract of indemnity the cause of action arises IJ^^^J^^f^^""^'' when the damage which the indemnity is to cover is suffered : Reynolds v. Doyle (1840), 1 Man. & Gr. 753 ; Tunstall v. Bartlett (1866), 14 L. T. 400. Thus under an express contract to indemnify a party to litigation against costs, the cause of action arises upon the actual payment of costs by such 231 ACTIONS OF CONTRACT AND TORT. [CHAP. IV Surety's right of indemnity. Interest. Contribution. party ; not when the costs were incurred, or the solicitor's bill delivered ; and the statute runs from such payment : Collinrie v. Hetjicood (1839), 9 A. & E. 633 ; and similarly under an implied promise to indemnify, the statute runs from actual loss: Huntley v. Sandrrson (1833), 1 Cr. & M. 4G7. As to claims for indemnity under the Land Transfer Act, 1897, vide supra, p. 225. An implied right of indemnity exists in favour of a surety as against the principal debtor. At common law this is enforced by means of an action for money paid to the use of the principal debtor, and the cause of action does not arise until the surety has paid the principal debt or some part of it. Thereupon the statute runs as to each such payment from the time when it is made: Davies v. Humphreys (1840), 6 M. & W. 153. It follows that the right of indemnity is not barred because the creditor's action against the principal debtor is barred. Thus if the creditor recovers judgment against the surety after the lapse of six years from the due date of the principal debt, the surety can recover from the principal debtor sums iDaid within six years before the surety's action : Considinc v. Considinc (1846), 9 Ir. L. E. 400. Similarly the accommo- dation acceptor of a bill of exchange has an implied engagement from the drawer that he will take up the bill at maturity and indemnify the acceptor ; and there is no cause of action at common law till the acceptor is damnified by actual x)ayment : Reynolds v. Doyle (1840), 1 M. & Gr. 753 ; Angrove v. Tii)pett (1865), 11 L. T. 708. A sum recoverable by way of indemnity carries interest, but where such sum is charged on laud the interest recoverable is limited to six years' arrears : Seottislt Provident Institution v. Conolly (1893), 31 L. E. Ir. 329. A surety for an annuity who has paid gales of the annuity becomes a creditor for the amounts so paid and interest as though they were sums in gross. His right, consequently, is to recover such sums and not arrears of the annuity as such : S. C. The right of contribution as between co-sureties or co- debtors, though not founded on contract, but on general principles of justice (Bering v. Earl of Winclielsea (1787), 1 Cox, p. 321), is analogous to the right of indemnity and is subject to similar rules. It can be asserted against the co- surety notwithstanding that the creditor's right of action against OHAr. IV.] EFFECT OF THE STATUTE IX PARTICULAR ACTIOXS. 235 him is barred : Wolmershauseii v. GuUick, [1893] 2 Ch. 514; and no action will lie at common law in favour of a surety against his co-surety, or in favour of one co-debtor against the rest, until he has paid more than his share of the debt. ""Whenever," said Parke, B., in Davies v. Humiilircys (184:0), 6 M. & W. p. 169, " it happens that one has paid more than his proportion of what the sureties can ever be called upon to pay, then and not till then it is also clear that such part ought to be repaid by the others, and the action will lie for it." Conse- quently until the surety has paid more than his share of the entire debt, there is no debt due to him from his co-surety upon which he can found bankruptcy proceedings against the co- surety : Ex parte Smncdon. (1881), 17 C. D. 44, C. A. But both as regards indemnity and contribution the rule in indemnity - - , and contribu- equity is different. It may be a matter oi the greatest moment tion inequity, that the surety who is entitled to be indemnified by the principal debtor, or the co-surety or co-debtor who is entitled to con- tribution, should be able to avail himself of this right before he has actually paid the amount for which he is himself liable. He is, accordingly, allowed to assert this right so soon as demand for payment has been made upon him, and the extent of his liability to the creditor, if doubtful, judicially ascertained: see Wolmcrshausen v. Gullich, [1893] 2 Ch. 514. And it may be that since the Judicature Acts the accrual of this equitable right of indemnity gives the starting-point for the statute : Wolmersliausrn v. GiilUclc [he. cit. p. 529) ; lloUnson v. HarJdn, [1896] 2 Ch. 415. But this prospective right to indemnity is substantially different from the right which accrues upon actual payment by the surety. It is probably correct to say that upon such payment a fresh cause of action accrues to the surety against which the statute then begins to run, and, as between co-debtors, it has been so held in Ireland : Gardner v. Brooke, [1897] 2 I. R. p. 20. The right to indemnity or contribution ranks as simple con- Six years' tract : see Copk v. MkhUeton (1823), T. & E. 224 ; Sanderson v. li'^itati-.n. Benson (1841), 4 Beav. 350 (liability of equitable assignee of leaseholds to indemnify lessee), and the limitation is six years. But under s. 5 of the Merc. L. A. A., 1H56, the surety or co- debtor is entitled to an assignment of the creditor's specialty and other securities, and hence would have the benefit of the unexpired period of 20 or 12 years. 236 ACTION'S OF CONTRACT AND TORT. [CHAP. IV. (15) Libel and Slander. label. An action for libel is barred in six years from the date of publication, but each publication gives a fresh cause of action. Hence, where the libel is in a newspaper, there is a fresh publication on each sale of the paper, and an action lies within six years of any sale, notwithstanding that more than six years have elapsed since the first pubhcation : Dtihe of Brunsicick V. Harmcr (1849), 14 Q. B. 185. Slander. Actions on the case (other than for slander) are to be brought within six years next after the cause of action ; actions upon the case for words within two years after the words spoken. The limitation of two years applies, however, only where the words spoken are themselves actionable. If the words are such that, to support the action, evidence must be given of special damage, then the special damage furnishes the cause of action, and the limitation of two years does not apply. The action can accordingly be brought within six years from the special damage: Laic v. Hanrood (1628), 1 Cro. Car. 140 ; Saiiuders v. Edicards (1663), 1 Sid. 95; Browne v. Gibbons (1702), 1 Salk. 206. In Littleboij v. Wright (1663), 1 Lev. 69, it was considered that only two years was allowed from the special damage, but it is obvious that this limitation only applies where the time is reckoned from the words spoken. There is an error as to this in Backhouse v. Bonomi (1861) 9 H. L. C. p. 513. Arrears of maintenance (16) Lunatics. Under sect. 299 (1) of the Lunacy Act, 1890 (53 & 54 Vict, c. 5), the personal property of a lunatic chargeable to a union, and the rents of his real estate, are made liable for the expenses of his maintenance ; and under sub-sect. 2 trustees of a lunatic's property are authorized to apply the property in repaying these expenses. Whether these enactments are based on a recog- nition of a pre-existing liabilit}^ or create a new statutory liability, the liability is on the footing of simple contract, and only six years' arrears of maintenance are recoverable: Be Harris (1880), 49 L. J. Ch. 327, C. A. ; Be Xewbegin (1887), 36 C. D. 477, on the Lunatic Asylums Act, 1853, s. 104 ; Be Watson, [1899] 1 Ch. 72 ; cf. Wandsworth Union v. Worthinr/ton, [1906] 1 K. B. 420. And six years' arrears are recoverable by action, notwithstanding the provision of sect. 16 of the Poor Law Act, CHAP. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 237 1849 (12 & 13 Vict. c. 103), for the summary recovery by the guardians of one year's maintenance : He Clahhon, [1904 J 2 Ch. 465 ; Birkenhead Union v. Bi-ookes (1906), 95 L. T. 359. As to allowance of six years' maintenance to a relative of the lunatic, see He Weaver (1882), 21 C. D. 615. And generally, an action of debt can be brought to recover Necessaries. the cost of necessaries supplied for a lunatic : Broekwell v. Bulloch (1889), 22 Q. B. D. 567, C. A. ; and the statute runs at once ; though if the claim is such that the creditor would be restrained from prosecuting it during the lunatic's life, the six years is reckoned from his death. This is so with regard to the ■costs of solicitors employed in prosecuting the commission in lunacy and employed subsequently by the committee : Stedman V. Hart (1854), Iva}^ 607. A petition in lunacy, after the death of the lunatic, by the committee, and a report of the master that money is due to him, does not stop the statute running in favour of the heir-at-law if he is not a party to the pro- ceedings : Wilkinson v. Wilkinson (1851), 9 Hare, 204. Debts, other than for necessaries, can only have been Debts incurred before the lunacy, and if the statute has commenced before lunacy, to run, the lunacy of the defendant does not in general stop it : Congreve v. Poicer (1828), 1 Moll. 121. On the Irish Lunacy Act, 1871 (34 Vict. c. 22), s. 95, it has been held that the Court will not pay statute-barred debts of a lunatic contracted before the lunacy : Be Kenrick, [1907] 1 I. E. 480. Where a claim has been actually made in proceedings in the lunacy, and has failed, the creditor will not, if the statute has run, be allowed to assert the claim against the lunatic's estate after his death : Boch v. €ooJce (1847), 1 De G. & Sm. 675. (17) Monei/ lent. Where no time is fixed for re-payment of a loan, the statute No time runs from the date of the advance. When the advance is made repiiyment. by cheque, it is deemed to be made when the cheque is presented at the lender's bank and cashed, not when it is paid in to the borrower's bank, although at once credited to him : Garden v. Bruce (1868), L. 11 3 C. P. 300. And when money lent is repayable on demand, no demand is necessary, and the statute runs forthwith : Jackson v. Ogej (1859), Johns. 397. If a time is fixed for payment, the statute runs as soon as Time fixed, an action can be brought. Thus, where the loan was for five 238 ACTIONS OF CONTEACT AND TORT. [CHAr. IV. Ivepayment subject to couditiou. Mortgage not under seal. years, subject to the right of the lender to call it in on twenty- one days' default in payment of interest, the statute ran so soon as default had been made for twenty-one days : Hemp v. Garland (1843), 4 Q. B. 519 ; llecres v. Butcher, [1891] '2 Q. B. 509, C. A. And if the loan is secured by a bill, the statute runs from the due date of the bill, not from the advance : Wittcrshcim v. Countess of Carlisle (1791), 1 H. Bl. G31. Where money lent is not repayable till a condition is per- formed, as the production of a passbook, the statute does not run till such i^roduction : Atkinson v. Bradford Bidlding Society (1890), 25 Q. B. D. 377. But where an advance is made upon security, with provision, in case of default in payment, for realization of the security, the borrower undertaking to pay any deficiency, the statute runs from the default in payment at the due date, and a new cause of action on the undertaking does not arise when the deficiency is ascertained : lie McHenri/, [1894] 3 Ch. 290, C. A. Where an advance is secured by a deposit of title-deeds accompanied by a memorandum not under seal, the advance creates a simple contract debt which is liable to be barred in six years. The fact that the money is charged on land does not make the limitation of twelve years under sect. 8 of the Pt. P. L. A., 1874, apply to the personal remedy: Barnes v. Glenton (1899), 1 Q. B. 885, C. A. Nor is the time extended by the fact that the mortgagor has agreed to execute a legal mortgage which would contain a covenant for payment: Firth, v. Slingshy (1888), 58 L. T. 481 ; cf. Brochlehurst v. Jessop (1835), 7 Sim. 438. But the circumstance that the debt is barred does not prevent the mortgagee from enforcing his security against the property comprised therein : London and Midland Bcmh v. Mitchell, [1899] 2 Ch. 161. Payment by sub-tenant to lessor. (18) Money jmid. In an action to recover money paid for the defendant, where the plaintiff was not under direct liability to pay, the statute runs from the time when the defendant adopted or got the benefit of the payment. Thus money paid on account of rent by a sub-tenant to a lessor is money paid for the lessee as soon as he claims credit for it from the lessor : Ahearne v. M'Suineij (1874), Ir. E. 8 C. L. 568. Where the plaintiff was bound to CIIAr. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 239 pay, as in the case of co-debtors, the statue runs from the actual paj^ment : Gardner v. Brooke, [1897] 2 I, E. (3, C. A. {supra, p. 235). (19) Money received. An action for money had and received has been considered Mistake ami . . , 1 • p 1 • 1 tailure of to be m a sense an equitable action and to he for money which consideration. " c.s sequo et bono the defendant ought to refund": j^er Lord Mansfield, in Moses v. Macferlan (1760), 2 Burr. p. 1012. It lies, for instance, for money "which has been paid under a mistake of fact, or upon a consideration which has failed. It has been said that the action will not lie until the fact of the mistake or failure of consideration has been communicated to the defendant, and a demand for return of the money made : see per Martin and Bramwell, BB., in Freeman v. Jejferies (1869), L. E. 1 Ex. 189. But it may be doubted whether this is so for the purpose of the Statute of Limitations, as the plaintiff would thus be able to postpone at his pleasure the operation of the statute in favour of the defendant. The true principle seems to be that the cause of action accrues and the statute runs, in the case of mistake, as soon as the mistake is, or with reasonable diligence could have been, discovered; and, in the case of failure of considera- tion, so soon as the failure has with certainty occurred. Thus, where the security for an annuity was set aside, an action lay within six years from this event, though more than six years had elapsed since the annuity was last paid : Jluggins v. Coates (1843), 5 Q. B. 432. Where the annuity was void on account of a defect in the memorial, the action accrued on the grantor's election to avail himself of the defect : Coioperw (iodmond (1833), 9 Bing. 748. (20) Partnership Accounts. So long as the partnership relation exists the statute is no statute no bar -1, ,-ni 'Tiij.! 1 wliileparfner- bar to an account, and the account will be carried back through gj^jp i^^ts. the whole partnership or to the last settlement ; notwithstanding that the partnership business has been discontinued for more than six years : Miller v. Miller (1869), 8 E(i. 499. Upon a dissolution of the partnership, however, a partner who continues the business is not a trustee for the retiring partner or for the representatives of a deceased partner, and the right to an account is barred at the end of six years from the termination 240 ACTIONS OF CONTRACT AND TORT. [CHAP. IV ol Eliz. c. 5, s. 5. Penalty to Crown only : two years. Penalty to Crown and informer : one year for in- fomier: two yciirs further for Crown. Present ■operation of statute. of the partnership : Knox \. Gijc (1872), L. E. 5 H. L. p. GTC) liarton v. yorth Stafordsldre llij. Co. (1888), 38 C. D. p. 4G3 ; Noyes v. Craidey (1878), 10 C. D. 31 ; The Pongola (1895), 73 L. T. 512. Provided, however, that the action is commenced within six years, the account will he carried hack till the last settlement or the commencement of the partnership ; and it will not be interrupted by the fact that the partnership has been reconstituted, if the keeping of the accounts of the business has been practically continuous : Betjemann v. Betjcmann, [1895] 2 Ch. 474, C. A. As to dissolution by death, see MilUnfiton v. IloUand (1869), 18 W. E. 184. (21) Penalties. By 31 Eliz. c. 5, s. 5, it was provided that all actions, indictments, or informations for any forfeiture upon a penal statute made or to be made whereby the forfeiture was limited to the Crown only, should be brought or exhibited within two years after the offence committed ; and all actions or informa- tions for any forfeiture upon a penal statute, the benefit whereof was limited to the Crown and the prosecutor, should be brought by any person that might lawfully pursue the same within one year next after the offence committed ; with a further limitation for the Crown, in default of private prosecution, of two years after such year ended ; with a proviso saving any shorter statutory limitations. The Act was repealed as regards infor- mations by the Summary Jurisdiction Act, 1848 (11 l*c 12 Vict. c. 43), s. 36. Thus the effect is that summary proceedings on penal statutes are subject to the six months' limitation of the Summary Jurisdiction Act unless a shorter period is expressly limited; other proceedings are subject, if the penalty goes to the Crown onl^', to a two years' limitation, reckoned from before the filing of the information : see Crown Suits Act, 1865 (28 & 29 Yict. c. 104), ss. 8, 10; cf. Att.-Gcn. v. Hall (1823), 11 Price, 760; and if the penalty goes to the Crown and an informer, to a one year's limitation as regards the informer, and to a further two years' limitation as regards the Crown. The statute of Elizabeth has been held to extend also to the case of an action brought by an informer upon a statute thereby no part of the penalty is limited to the Crown : Lvohup V. Frederkh (1767), 4 Burr. 2018 ; Byer v. Best (1866), CHAP. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 241 L. E. 1 Ex. 15'2; see Barrett v. Johnson (1836), 2 Jon. Ex. E, Ir. 197 ; but this has been doubted : llohinson v. Carrey (1881), 7 Q. B. D. 465, C. A. A year's limitation is, however, in effect imposed in such a case by 21 Jac. 1, c. 4, s. 3, which requh-es a common informer to make an affidavit that the offence was committed within a year before the information or suit. Actions for a statutory penalty brought by the party grieved Action by are not within the statute of Elizabeth (Noy, 71) unless the i^^'*^ s^"^^^^*^- party grieved is suing as informer: Leicis v. Davis (1875), L. E. 10 Ex. 86 ; but under the Civil Procedure Act, 1833, s. 3 {supra, p. 194)— in Ireland the Ir. C. L. P. A., 1853, s. 20— they are subject to a limitation of two years from the cause of action, unless a different limitation is imposed by the particular statute. The Acts just referred to extend to "actions for penalties, damages, or sums of money given to the party grieved by any statute," but the " damages or sums of money " must be exacted by way of penalty. In other words the two years ' limitation under the Acts applies only to penal actions brought by the party grieved : Thomson v. Clanmorris, [1900] 1 Ch . 718, C. A. Whether a sum recoverable under a statute is given as a Penalty or penalty or damages will depend on the words and object of the '^'*'"^^'^^- particular statute. Sums which are exacted from the defendant as a punishment, and are assessed by reference to his conduct, and not by reference to the damage sustained by the plaintiff, are penalties ; and this is ordinarily the case with sums recover- able on breach of the provisions of a statute : Saunders v. Wiel, [1892] 2 Q. B. 321, C. A., decided on the Patents, ets., Act, 1833 . But sums recoverable under the Dramatic CDpyright Act, 1833 (3 & 4 Will. 4, c. 15), and Copyright (Masical Compositions) Act, 1888 (51 & 52 Vict. c. 17), are recoverable by way of damages: see Adams v. Batley (1887), 18 Q. B. D, 625, C. A.; and so is compensation obtained from a director under the Directors' Liability Act, 1890 (53 & 54 Vict. c. 64), s. 3, in respect of untrue statements in a prospectus : Thomson v. Clan- morris, [1900] 1 Ch. 718. The limitation in such cases is six years from the accrual of the cause of action. A remedy in damages is also given by the Companies Act, 1900 (63 & G4 Vict, c, 48), s. 5, against a director who knowingly contravenes, or permits or authorizes the contravention of, the provisions of T.L..V. R 2i2 ACTIONS OF CONTEACT AND TORT. [CHAP. IV. Corporations authorized to sue for penalties. Penalties under bj'e- laws Advertise- ments for stolen property. the Act as to allotment of shares, but the proceedmgs must be commenced not less than two years after the allotment. A corporation, such as the Goldsmiths' Company, which is by statute authorized to sue for penalties, is neither a party grieved, so as to be subject to the Civil Procedure Act, 1833, nor an informer, so as to be within 31 Eliz. c. 5 ; and the corporation can bring an action more than two years after the cause of action accrued : llohinson v. Curre)/ (siijn-a). The limitation on penalties in the Civil Procedure Act, 1833, is confined to penalties given by statute. Where a corporation is established by charter, a penalty due from a member under a byelaw is on the footing of a simple contract debt, and is barred in six years : Tobacco Fiije Makers Co. v. Lodcr (1851), 16 Q. B. 765 ; but if the liability of the member is based on statute or on a deed of settlement, the limitation is twenty years : supra, p. 195. By sect. 102 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), it is provided that advertisements offering a reward for the return of stolen or lost property, in which it is intimated that no questions will be asked, and other specified advertisements of a similar nature, shall render the advertiser liable to forfeit £50 to any persons who will sue for the same. But by sect. 3 of the Larceny (Advertisements) Act, 1870 (33 & 31 Vict. c. 65), every action against the printer or publisher of a newspaper to recover such a forfeiture must be brought within six months after the forfeiture is incurred. No general limitation. (22) Personal Propcriii. There is no statute which limits generally actions for the recovery of personal property in a manner similar to the limitation imposed by the E. Pt L. Acts on the recovery of real property. When a specific injury has been done in regard to personal property, so as to give rise to a cause of action such as detinue or trover, the case is within the Limitation Act, 1623. But the mere right to recover personal property is not subject to any statutory bar, and the Courts will not apply such a bar in analogy to the K. P. L. Acts: Mellersh v. Broivn (1890), 45 C. D. 225 ; Charter v. Watson, [1899] 1 Ch. p. 180. In the case of a mortgage of a reversionary interest the right to recover the property does not arise till it falls into possession, and the CHAP. lY.] EFFECT OF THE STATUTE IX PAKTICULAR ACTIONS. 243 mortgagee is then entitled to it, although his personal remedy for the mortgage debt may be barred: B.e Hancock (1888), 59 L. T. 197 ; lie Lakes Trusts (1890), 63 L. T. 416 ; Re Lowes Settlement (1861), 30 Beav. 95. There is no bar, it has been held, to the right to redeem personal chattels in pledge, at any rate dm-ing the life of the pledgor : Kemp v. Westhrook (1749), 1 Ves. S. 278. Under the Police (Property) Act, 1897 (60 & 61 Vict. c. 30), Property s. 1, a court of summary jurisdiction may make an order for the police, delivery of property in the possession of the police in connection with a criminal charge, or under certain statutes, to the person appearing to be the owner ; and the right of any i^erson to take proceedings against a person in possession by virtue of the order is limited to six months from the date of the order. (23) Principal and At/ent. The same rule applies to agency as to partnership (siqira, statute no bar p. 239), the latter relation, indeed, being only a particular case J^^g"g^ agencj of the former. As long as the agency lasts, the statute is no bar to an account : see The Pongola (1895), 73 L. T. 512, where it was held that there was a continuing relation of agency or partnership between the co-owners of a ship and the managing owners, so as to prevent the statute running. But when the relation of principal and agent has come to an end, the statute will run : Friend v. Young, [1897] 2 Ch. 421 ; and unless the agent has been placed in the position of an express trustee b}' being entrusted with funds to manage on behalf of his principal, as in Burdich v. Garrick (1870), 5 Ch. 233, the right to an account is barred at the end of six years from the last transaction under the agency. As against a fraudulent agent, time is no bar : WalsJuDn v. Stainton (1863), 12 W. Pi. 63, C. A. And see Xorih American Land, etc., Co. v. Watkins, [1904] 1 Ch. 242. Upon a contract by a factor to account, and to pay over the Factor, balance due on demand, no action will lie for not accounting till after demand ; hence the statute only runs from demand ; though after a reasonable time a demand would be presumed, and fourteen years would be suflicient to raise the presumption in the absence of rebutting circumstances : Topham v. Braddick (1809), 1 Taunt. 572. 244 ACTIONS OF CONTRACT AND TORT. [CHAP. lY On dcmuu.I When able. By instal- ments. Use uiul occupation. (24) rromisc to xxnj. Where a promise to pay on demand is made by a principal debtor, the statute runs at once, and no demand is necessary : Collins V. Bennimi (1700), 12 Mod. 444; Bull N. P. p. 151 ; cf. Norton v. Ellam "(1837), 2 M. & W. 461 (supra, p. 221). But if the promise is by way of collateral security, demand is necessary to give a cause of action : Be J. Browns Estate, [1893] 2 Ch. 300. Where demand is necessary before money is due, and it appears that interest has been paid, this imports that a demand has been made, since interest is paid for forbearance of a debt r Be Butherford (1880), 14 C. D. 687, C. A. Upon a promise by a debtor to pay as soon as he is able, the statute runs from the date when he has means to pay the debt : Hammond v. Smith (1864), 83 Beav. 452 ; though the creditor may not be aware of the fact : Waters v. Earl of Thanet (1842), 2 Q. B. 757. A covenant to pay by promissory notes at successive dates is broken by non-payment of any note, and a cause of action arises on the covenant as well as on the note : Dixon v. Holroyd' (1857), 7 E. & B. 903. And where a j)romissory note is given for the balance due on an account stated, and it is agreed that it shall be paid by instalments, there is a breach on the first default in payment, and the statute then runs : Irving v. Veitch (1837), 3 M. & W. 90. (25) Bent. Pient due under an indenture of demise is recoverable within- six years by distress, but within twenty years in a personal action : supra, p. 186. Rent due under tenancies not created by deed is recoverable in an action on the special contract or for use and occupation. In either case the six years' limitation applies, and rent is only recoverable within six years of its becoming due. A tenancy from year to year is properly only determinable by notice to quit, and the liability to pay rent continues until it has been so determined, or until, from the lapse of time, such determination can be presumed. Sixteen years without demand of rent has been held to be sufficient for this purpose : Stagg v. Wgatt (1838), 2 Jur. 892. In Leigh v. Thornton (1818), 1 B. & A. 625, evidence of the determination of the tenancy was not required, and it was held that rent was not recoverable where there had been no occupation for six: CHAP. IV.] EFFECT OF THE STATUTE IX rARTICULAR ACTIONS. 245 years, and no act bad been done in tbe meantime from wbicb a tenancy could be inferred. Tbis involves tbe result tbat a tenant can determine bis tenancy by simply quitting possession, wbicb of course is not correct, and tbe case cannot be treated as an autbority. But if tbe landlord goes into possession, tbis will in effect prevent bis claiming rent. Moreover, in twelve years tbe tenant's title would be extinguisbed, and witb it any con- tinuing tbeoretical liability to rent. (26) Seamen. A six year's limitation was imposed in respect of seamen's Wages, "wages by tbe following enactment : — " All suits and actions in the Court of Admiralty for seamen's i Sc 5 Amie, wages, which shall become due after the said first day of Trinity ^" "'' ^' Term [i.e. in 1706], shall be commenced and sued within six years next after the cause of such suits or actions and not after." Tbe corresponding Irisb enactment — 6 Anne, c. 10 (Ir.) — was rendered unnecessary by Ibe C. L. P. A. (Ir.) 1853, (16 & 17 Yict. c. 113), s. 20, and was accordingly repealed by tbat statute. By tbe Mercbant Sbipping Act, 1894 (57 & 58 Yict. c. 60), Debt of s. 178, a creditor against tbe estate of a deceased seaman is HP^j,^,^in!f not entitled by any means to obtain payment of bis debt out of tbe property of tbe seaman in tbe bands of tbe Board of Trade if tbe debt accrued more tban tbree years before tbe deatb, or if tbe demand is not made witbin two years after tbe deatb. (27) Set-off. Tbe rigbt to plead a set-off arises under tbe Statutes of Set-off (2 Geo. 2, c. 22 ; 8 Geo. 2, c. 24, ss. 4, 5), and exists side by side witb tbe rigbt of counterclaim under tbe Judicature Acts (Judic. Act, 1873, s. 24 (3) ; E. S. C. 1883, Ord. 19, r. 3). A set-oft' must be a cross-claim for a liquidated amount, and it can be pleaded only to a liquidated claim. It operates as a defence in wbole or in part to tbe action (Annual Practice, 1909, pp. 249, 301); Stooke v. Taylor (1880), 5 Q. B. D. p. 575. A counter-claim is wider in its scope. It operates as a cross- action and it need not be in any way analogous to tbe plaintiff's action : Jirddall v. Maitland (1881), 17 C. D. p. I8l. To sucb counter-claim tbe Statute of Limitations can of course be i^leaded, and it can be pleaded also to a claim raised as a seaman. 246 ACTIONS OF CONTEACT AND TORT. [CHAP. IV 9 Geo. 4, c, 14, s. 4. Statute applies to set-off. statutory set-off: ncmiiifitoii v. Stevens (1748), 2 Str. 1271; Bawlei/ V. Bairlcj/ (1876), 1 Q. B. D. p. 463, C. A. ; see Smith V. Bett}/, [1903] 2 K. B. 317, C. A. Express provision is made to this effect by the Statute of Frauds Amendment Act, 1828 : — "The said recited Acts [/.e 21 Jac. 1, c. 16, and the Irish Act, 10 Car. 1, sess. 2, c. 9] and this Act shall be deemed and taken to apply to the case of any debt on simple contract alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise." The Irish Act, 10 Car. 1, sess. 2, e. 9, and this section, as regards Ireland, have been repealed {supra, p. 197), and corre- sponding provision as to set-off is made by the Ir. C. L. P. A., 1853 (16 & 17 Yict. c. 135), s. 26. But the statute is not a bar to a set-off, or (it would seem) to a counterclaim, unless the six years have expired before the action is brought. The set-off is substituted for a cross-action which is supposed to be brought at the time of the commencement of the plaintiff's action : ])cr Campbell, C.J., in Waller v. Clements (1850), 15 Q. B. 1046 ; Be Ballard, W. N. (1890), p. 64 ; see Orel V. Busjmd (1797), 2 Esp. 569. Where A. has delivered goods to B. more than six years ago, and within the six years B. delivers goods to A., A, can meet B.'s claim for the price of the goods by proving an agreement that the later goods should be taken in exchange for the earlier ones, although a set-off in respect of the price of the earlier ones would be barred : Moore v. Strong (1835), 1 Bing. N. C. 441. Solicitor not in general a trustee. (28) Solicitors. (i.) Accounting for Client's Money. A solicitor is not in general a trustee for his client of moneys received on his behalf, and the right to an account against the solicitor is barred in six years : Be Hinclmarsh (1860), 1 Dr. & Sm. 129 ; Watson v. Woodman (1875), 20 Eq. 721, at p. 731. If, however, the solicitor is employed to manage funds on behalf of his client, and is left to exercise his own discretion as to choice of investment, he becomes a trustee of the funds and he is not entitled to the protection of the Limitation Act, 1623, except by virtue of the Trustee Act, 1888, s. 8: Burdick v. GarricTi (1870), 5 Ch. 233; Gray v. Bateman, 21 W. K. 137; Power V. Pou-er, 13 L. R. Ir. 281 ; see infra, p. 278. CHAP. IV.] EFFECT OF THE STATUTE IN FARTICULAR ACTIONS. 247 (ii. ) Negligence. An action against a solicitor for negligence in the per- Negligence] formanee of his professional duties would formerly have been ^^ solicitor, framed either in contract {assumpsit) or in tort (case), and in either form would have been barred in six years : contract, Short V. MX'arthy (1820), 3 B. & A. 626 ; Brown v. Hoivard (1820), 2 Br. & B. 73 ; tort, Howell v. Young (1826), 5 B. & C. 259 ; Smith V. Fox (1848), 17 L. J. Ch. 170. And the same limit now applies to an action founded on negligence : Hughes v. Twisden (1886), 55 L. J. Ch. 481 ; including an action for negligence in respect of an investment which has been selected or approved by the client: Doohij v. Tlafso^ (1888), 39 C. D. 178. But if money is left in a solicitor's hands for investment at his discretion, then, as just stated, he is a trustee of the money, and, in the event of the money being lost by his negligence, he is liable as a trustee: Doohy v. Watson; Smith v. PococJce (1854), 2 Drew. 197; Craig v. Watson (1845), 8 Beav. 427; infra, p. 278. The parties to a contract impliedly undertake for due statute runa diligence in the performance of it. Hence negligence is a n^^io-ence breach of the contract, and the statute runs forthwith, although the special damage may not arise, or the negligence may not be discovered, till later. And where there is a contractual relation between the parties, it makes no difference in this respect whether the action is brought in contract or in tort : see j^cr Holroyd, J., in Howell v. Young (1826), 5 B. & C. 259. Hence, in an action for negligence by a client against his solicitor, the act of negligence gives the date of accrual of the cause of action, and time runs from such act, and not from its discovery by the client : Short v. M'Carthg (1820), 3 B. & A. 626 ; Wood v. Jones (1889), 61 L. T. 551 — unless it has been fraudulently concealed : Brown v. Howard (1820), 2 Br. k B. 73 — or from the time when damage results : Howell v. Young (supra); Smith v. Fox (1848), 6 Hare, 386. But where the negligence lay in failure to give notice to trustees of an assignment of an equitable interest in a trust fund, and a subsequent incumbrancer by giving notice gained priority, the act of negligence was not complete till such subsequent notice, from the date of which accordingly the statute ran: Bean v. Wade (1885), C. ^ E. 519. 248 ACTIONS OF CONTKACT AND TORT. [CHAr. IV Litigious costs. Proceedings in equity, etc. Country solicitor and London agent. (iii.) Costs. A solicitor who is retained to prosecute or defend an action enters into an entire contract to carry on the proceedings until the action is finally terminated, and he cannot sue for his costs until that time has arrived : Harris v. Oshourn (1834), 2 C. & M. 629; Whitehead v. Lord (1852), 7 Ex. 691. And though he can put an end to the contract for good cause — as for the failure of the client to provide money for immediate disbursements : Pioirson V. Earle (1829), 1 Moo. & M. 538 — yet he cannot do so ■without reasonable cause and without reasonable notice : Under-^ wood v. Lewis, [1894] 2 Q. B. 306, C. A. ; KiehoUs v. Wilson (1843), 11 M. & W. 106. Hence, items in the bill of costs more than six years old are not excluded, if the suit terminated within six years : Martindale v. Falhier (1846), 2 C. B. 706. The right to costs arises on termination of the suit by judgment : Rothery v. Munnings (1830), 1 B. & Ad. 15 ; unless there is an appeal, and then the appeal is a continuation of the proceedings in the original suit, and prevents the statute running : Harris v. Quine (1869), L. E. 4 Q. B. 653. But when the suit is at an end, a subsequent item in the bill does not take the rest of the bill out of the statute : llothery v. Munnings (sujira). The rule that the right to sue for costs does not arise until the determination of the proceedings only applies to ordinary actions, whether at common law or in equity, in which the object is to obtain a verdict or judgment, and in which no ulterior proceedings are necessary. It does not apply to equity matters where the obtaining of the judgment is only one part of the cause, and the working out of the decree requires further steps to be taken. In such cases the solicitor is entitled to treat each part as a separate and distinct transaction, and the statute runs against him accordingly; and it is the same in other pro- ceedings, such as proceedings in bankruptcy and winding up, which are capable of separation into distinct parts : lie Hall and Barker (1878), 9 C. D. 538; also in arbitrations, if the course of the proceedings is such as to admit of natural breaks : lie Earner and Haslam, [1893] 2 Q. B. 286. And see Be Cart- n-right (1873), 16 Eq. 469. It has been held that in accounts between a country solicitor and his London agent successive bills delivered can be treated as distinct, though relating to one cause in progress : Be Nelson, €HAP. IV.] EFFECT OF THE STATUTE IX PARTICULAE ACTIONS. 249 Son, and Hastings (1885), 30 C. D. 1, C. A. ; but that case really turned upon a question of fact, and the earlier accounts were each settled as separate accounts by agreement between the parties, so as to make each a final bill of costs : see He Homer and Ilaslam (supra). In non-litigious matters, too, separate bills may be sent in at natural breaks in the business, and hence later items cannot be relied on to save earlier ones : Phillijis V. Broadleij (1846), 9 Q. B. 744. Under the Solicitors Act, 1843 (G & 7 Vict. c. 73), s. 37, a Statute ruus solicitor cannot commence an action for the recovery of any jJeUoT^f the fees, charges, or disbursements for any business done by him ^'■";^ though until the expiration of one month after delivery of his bill ; but deferred, this provision does not prevent the cause of action from arising immediately the work has been done. It only affects the enforce- ment of the remedy. Hence the statute runs on the completion of the work, and not from the end of one mouth after delivery of the bill : Cohurn v. Collcdge, [1897] 1 Q. B. 702, C. A. As to costs due from poor law guardians : ride supra, p. 232. As to taxation of statute-barred costs : vide supra, p. 210. As to re-opening settled accounts for costs : vide supra, p. 216. Where a petition was brought under the Solicitors Act, 1862 Charging (23 & 24 Vict. c. 127), s. 28, to obtain a charge for costs on ^[^"^ property preserved in proceedings taken on behalf of an infant and adopted by him on attaining twenty-one, a receiver being in possession throughout, it was held that the statute had not run against the solicitor, though no step had been taken within six years: Bade v. Bade (1872), 13 Eq. 497. A charging order cannot be made for costs which are statute-barred : supra, p. 210. (29) Work done. In an action for work done, the cause of action accrues when Completioa the work is completed ; and the rule applies though the work is done for a public body, and no steps have been taken to raise funds for payment : Emerij v. Daij (1834), 1 C. M. & E. 245. Under special circumstances, however, the statute maj' not run until there are assets for payment — as where mone}- raised by a company is by statute to be applied to pay certain creditors: Re Kensington Station Act (1875), 20 Eq. 197 ; or whore solicitors have delivered up documents to an ofticial liquidator on his of work. 250 ACTIONS OF CONTRACT AND TORT. [CHAP. IV. undertaking to pay their costs out of the first moneys in his hands: Be Gloucester, etc., llij. Co. (1860), 2 Giff. 47— or until the deficiency of the primary fund is ascertained : Hunter v. Hunter (1868), Ir. E. 3 C. L. 138. Employers' Liability Act, 1880. AVorkmen's Compensation Act, 190G. Unlawful deduction from ■wasres. (80) Worhneu. An action is not maintainable under the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), unless notice of the injury is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death ; but in case of death, the want of notice is no bar to the maintenance of the action, if the judge is of opinion that there was reasonable excuse for such want of notice (s . 4). Proceedings for the recovery of compensation under the Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58), are not maintainable unless notice of the accident has been given as soon as practicable after the happening thereof, and before the workman has voluntarily left the employment in which he was injured ; and unless the claim for compensation in respect of such accident has been made within six months from the occurrence of the accident causing the injury, or, in case of death, within six months from the time of death ; but there is a proviso saving {a) the case of want of notice of the accident, and {h) the case where the failure to make the claim within the period above specified is due to mistake, absence from the United Kingdom, or other reasonable cause : sect. 2. The Truck Act, 1896 (59 & 60 Vict. c. 44), s. 4, imposes a six months' limitation on proceedings by a workman to recover sums deducted by his employer contrary to the Act, the period to be reckoned from the date of deduction. CHAPTER V. CLAIMS IN EQUITY. An equitable claim may be expressly barred by statute. Thus, Howtimeabar under sect. 24 of the R. P. L. A., 1833, a claim to land or rent ciaimf ''''^*' in equity is subject to the same limitation as a claim at law. In the absence of such statutory limitation the operation of time in barring claims in equity depends either upon the analogy of the Statute of Limitations, or upon the doctrine of laches — a doctrine adopted by Courts of Equity with a view to discouraging stale demands. Section I. — Where Equity acts in Analogy to the Statute. Where there is no statutoiy bar upon the proceedings in Cases equity, but the subject matter of the claim falls within one of to those the Statutes of Limitation — as where it is in respect of a within stituto* simple contract debt — so that the claim would be barred if the proceedings were at law, the claim is also barred in equity. *' Courts of Equity have constantly guided themselves by the principle that, wherever the legislature has limited a period for law proceedings, equity will, in analogous cases, consider the equitable rights as bound by the same limitation " : per Lord Eedesdale, in Hovenden v. Annesley (1806), 2 Sch. & Lef. 607, at p. 632 ; see SmUh v. Clay (1767), 3 Pro. C. C. 639 n. ; Bond V. Hophins (1802), 1 Sch. & Lef. 413, at p. 429 ; Cholmonddey v. Clinton (1820), 2 Jac. & W. 1, at p. 151. In Cholmonddey V. Clinton (1821), 4 Pligh, 1, at p. 119, Lord Eedesdale went so far as to say that the Statute of Limitations was intended to govern equitable as well as legal claims, and that Courts of Equity, in applying it, acted in obedience to the statute. The true principle, however, is that, "where 'the remedy inequity is correspondent to the remedy at law, and the latter is > subject to a limit in point of time by the Statute of Limitations, a Court of Equity acts by analogy to the statute, and imposes on 252 CLAIMS IN EQUITY. ICHAr. V. the remedy it affords the same limitation. But if any proceed- ing in equity be included in the words of the statute, then a Court of Equit}', like a court of law, acts in obedience to the statute " : ])er Lord Westbury, C, in Knox v. Gije (1872), L. E. 6 H. L. Q>i^Q), at p. 674. But if no analogy is properly applicable, a Court of Equity does not adopt an express time limit in imitation of the statute. It does not, for instance, extend the limitations on actions in respect of real estate to personal estate, and hence there is no specific limit on the arrears of interest which may be recovered in respect of a mortgage of a rever- sionary interest in personal estate : Mdli'mU v. Broivn (1890), 45 C. D. 225 ; svpra, p. 180. Though after twenty years there would be a presumption of payment. Nor does it apply six years as a limitation to specific performance on the analogy of breach of contract : Talmarsh v. MiKjlcston (1826), 4 L. J. 0. S. Ch. 200. Section II. — Where no Statutory Limitation is applicable. (1) The Doctrine of Laches. Effect of Although no statutary limitation may be applicable, either ^*^u^f "^ expressly or by way of analogy, yet equity recognizes that it would be unjust to allow a claim to be asserted after an undue lapse of time, and a plaintiff who has brought himself within this principle is said to be barred by his laches. " A Court of Equity, which is never active in relief in matters against con- science or public convenience, has always refused its aid to stale demands, where the party has slept upon his right and acquiesced for a great length of time. Nothing can call forth this Court into activity but conscience, good faith, and reason- able diligence ; where these are wanting the Court is passive and does nothing. Laches and neglect are always discounte- nanced, and therefore, from the beginning of this jurisdiction, there was always a limit to suits in this Court": per Lord Camden, in Smith v. Clmj (1767), 3 Bro. C. C. 639 n. (i.) Meaninr/s of Acquiescence distiiif/nislted. In the passage just quoted the effect of laches is ascribed to Acquiescence lOJi tj-a^j during viola- acquiesceucc, but this term is used in two senses. If A. stands tion of right; ^^, ^,j^-j^ j^^ ^^^^ ^^^^ yiolatiou of his right in progress, and takes CHAP, v.] WHERE NO STATUTOEY LIMITATION IS APPLICABLE. 25S no steps to interfere, he is said to acquiesce in the viola- tion, and he may be thereby debarred from his remedy in respect of it. This is acquiescence in the strict sense, but its effect has nothing to do with the lapse of time, and it has no relation to laches. In another sense, acquiescence is used to denote that some equitable right of A. has been violated; as and after where he has been induced to make a gift by undue influence, or where he is a cestui (pie trust and his trustee has purchased the trust property ; and that after the influence has ceased, or the violation has been brought to his knowledge, he assents to the continuance of the state of affairs resulting from the viola- tion — to the retention of the gift by the donee or of the property by the trustee. The lapse of time without proceedings being taken by A. is evidence of such assent, and upon acquiescence of this latter kind the doctrine of laches is ba sed. Acquiescence in the strict sense implies either that the party Acquiescence acquiescing has abandoned his right, or that he is estopped by his conduct from asserting it. "If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word ' acquiescence ' " : per Lord Cottenham, C, in Duke of Leeds v. Earl of Amherst (1846), '2 Ph. p. 124. " Acquiescence may be defined as quiescence under such circumstances as that assent may reasonably be inferred from it, and is no more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge or assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction or release under seal " : ])e Bussche V. Alt (1878), 8 C. D. 286, C. A.; cf. Kent v. JacJcsoii (1851), 14 Beav. 367. The estoppel which arises from standing by rests upon the Estoppel by ground that it is fraudulent for one person to assert his right j^y^" '"° after having encouraged another to act upon the belief that it does not exist or has been abandoned : see Savage v. Foster (1722), 9 Mod. 35 ; 1 Wh. .V. T. L. C, 7th cd. p. 455. The con- ditions for the application of the doctrine were stated by Fry, J., in W'dlmott v. Ikirher {IHm), 15 C. D. p. 10 5. If A. has 254 CLAIMS IX EQUITY, [CHAP. A'. Acquiescence ]iroper is a bar notwith- standing- statute. E. r. L. A., 1833, s. 27. Effect of acquiescence preserved. Acquiescence in second sense, or laches, docs not shorten statutory period. stood by while liis right is infringed hy B., the estoppel arises against A. : — (1) if B. has made a mistake as to his legal right : cf. Ramsden y. Dyson (1865), L. E. 1 H. L. 129; (2) if B. has expended money, or done some act, on the faith of his mistaken belief: Dann v. Spurrier (1802), 7 Yes. p. 235; Ilochdah Canal Co. V. Kinr/ (1851), 2 Sim. N. S. 78; Archhold v. Scully (18G1), 9 H. L. C. p. 383 ; (3) if A. knew of his own right—" if he does not know of it he is in the same position as [B.], and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights " ; (4) if A. knew of B.'s mistaken belief ; (5) if A. has encouraged B. in his expenditure of money or other act, either directly, or by abstaining from asserting his legal right : see Ciril Service, etc., Association v. Whiteman (1899), 68 L. J. Ch. 484. In cases where the doctrine of acquiescence in this sense applies, A.'s right, whether it is legal or equitable, is barred by his acquiescence, even though a statutory limitation is applicable, and the statutory period has not run; and the jurisdiction of equity to bar the right on this ground is expressly preserved, as regards claims to land or rent, by sect. 27 of the K. P. L. A., 1833 :— " 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." Where, however, the violation of the right has been completed under such circumstances that acquiescence in the strict sense is not to be imputed to the owner of the right, but he forbears for a long time to seek redress after he has been in a position to do so — where, in the words of Lord Camden, in Smith v. Clay {supra, p. 252), he sleeps upon his right — there is a case of acquiescence in the second sense, and such acquiescence wdll constitute laches. If, however, the right of action is subject, expressly or by analogy, to a statutory hmitation, acquiescence in this sense does not have the effect of shortening the time within which the plaintiff can sue. A party who has not abandoned his right cannot be said to be in delay because he takes advantage of the fall period which the law allows, and does not bring his action until that period is on the point of expiring. " So far as laches is a defence," said Lord Wensley- dale, in Archhold v. Scully (1861), 9 H. L. C. p. 383, " I take CHAr. v.] -WHERE NO STATUTORY LIMITATIOX IS APPLICABLE. 255 it that where there is a Statute of Limitations, the objection of simple laches does not apply until the expiration of the time allowed by the statute." " Where one party invades the right of another, that other does not, in general, deprive himself of the right of seeking redress merely because he remains passive ; unless, indeed, he continues inactive so long as to bring the case within the purview of the Statute of Limitations: lioclulak' Canal Co. v. King (1851), 2 Sim. N. S. p. 89, j^cr Lord Cranworth, Y.C. Thus mere delay, short of the statutory period of limitation, is no bar to a claim to recover a specialty debt (lie Baker (1881), 20 C. D. 230, C. A., where eighteen out of the twenty years had elapsed) ; or to a claim to set aside a deed as fraudulent under 13 Eliz. c. 5 : T]tree Towns BanJcing Co. v. Maddevcr (1884), 27 C. D. 523, C. A.; cf. Penny v. Allen (1857), 7 D. M. & G. 409, at p. 426 ; L. C. & D. Rij. Co. v. Bell (1882), 47 L. T. 413, at p. 415 ; or to a claim on a bill of exchange : Ghjn v. Hood (1860), 1 D. F. & J. 334. And since trustees are now entitled to avail themselves of the statute, the same rule must apply to a claim by a eestid que trust against his trustee. This was not noticed in lie Taylor (1900), 81 L. T. 812, where a trustee in whose favour time had not run under the Trustee Act, 1888, s. 8, by reason of the plaintiff's interest being a future interest at the time of the breach of trust, but whose position had been prejudiced by the plaintiff omitting to sue earlier, escaped on the ground of the plaintiff's laches. (ii.) TJie Elements of Laches. The doctrine of laches, therefore, is confined to equitable Laches, claims which are subject to no statutory bar either expressly or by analogy. The term "laches" denotes that there has been such delay as either by itself, or in connection with other circumstances, makes it inequitable to enforce the claim. But the delay and the circumstances which will be held to con- stitute laches vary with the nature of the claim. It seems correct to say — though this has not always been recognized — that to all equitable claims, except those founded on breach of express trust, time in itself, if unduly prolonged, is as much a bar as an express statutory bar; and though, in the absence of legislative enactment, Courts of Equity have abstained from 25G CLAIMS IX EQUITY. [CHAP. V. fixing a specific limit (see jx-r Lord Camden, in Smith v. Cla.ff (1767), 1 Bro. C. C. 639 n.), no equitable claim is likely to be entertained if the party entitled delays to put it in suit for twenty years after he has been in a position to do so. The claim is then " stale " and is unenforceable. But this limit of twenty years is only mentioned as the maximum. Equitable rehef will usually be refused after a much shorter delay, and the delay permissible in any particular case depends (a) on the general maxim that a claimant who seeks for relief in equity must come promptly ; and (h) upon the particular circumstances associated with the delay which make the enforcement of the claim inequitable — chiefly the acqui- escence of the claimant, using "acquiescence" in its second sense (supra, p. 253), or the changed position of the defendant. And it is such acquiescence or change of position which is usually operative. The Court does not, in ordinary cases, insist on the immediate bringing of the action; in other words, the rule that claims in equity must be made promptly is not applied with strictness. Attention is paid to the circumstances accom- panying the delay rather than to the delay itself. In certain cases, however, such as claims to specific performance or to rescission of contracts, greater prominence is given to the rule requiring promptness, and a comparatively short delay will be an absolute bar to the claim. Laches, then, exists : — (1) Where there has been delay so excessive as to make the claim stale ; (2) Where the plaintift" has not come with due promptitude^, and at the same time the delay either constitutes evidence of acquiescence, or has produced such a change in the defendant's position that it would be unjust to him to enforce the claim ; (8) Where the case is such as to call for special promptitude in making the claim, and the plaintiff does not make it immediately upon being in a position to do so. Acquiescence Of the various elements in laches special weight is given to fn laches"^'^^^* acquiescence — in the second sense— and this has been some- times treated as the sole element. " The true operation of length of time is by way of evidence": per Erskine, L.C., in Morse v. Eoyal (1806), 12 Ves. p. 374; i.e. evidence of acquiescence. "Length of time," said Turner, L.J,, in Life Association of Scotland v. Siddal (1861), 8 D. F. & J. p. 72^ CHAP, v.] WHERE NO STATUTOEY LIMITATION IS ArrLICABLE. 257 ■"where it does not operate as a statutory or positive bar, operates, as I apprehend, simply as evidence of assent or acquiescence. The two propositions of a bar by length of time and by acquiescence are not, as I conceive, distinct propositions. They constitute but one proposition, and that proposition when applied to a case of this description" — that is, breach of trust — " is that the cestui que trust assented to the breach of trust." But, as already stated, the Court has regard also to the Defemluiit's <3hange which the delay may have caused in the position of positfoii!' the defendant. Thus he may have lost the evidence necessary to meet the claim. " A Court of Equity will not allow a dormant claim to be set up when the means of resisting it, if unfounded, have perished " : jkt Lord Campbell, C, in Bright v. Legerton *(1861), 2 D. F. & J. p. 617; see Mathetv v. Brise (1851), 14 Beav. p. 346. Or he may have fixed his mode of life upon the assumption that the transaction which the plaintiff seeks to impeach was valid: see Tur}ier \. Collins (1871), 7 Ch. 329; AUcard v. Skinner (1887), 36 C. I), p. 192, C. A. ; and this will be a strong reason for not disturbing him. And generally the plaintiff will be barred by his laches if, knowing that there is a question as to his rights, he refrains from raising it, and leaves others to act upon the assumption that the claim has been abandoned : Stone v. Godfrey (1854), 5 D. M. & G. 76. Both the foregoing considerations — delay as evidence of i^ulc in acquiescence, and delay as involving a change in the position j>^troieum Go. of the defendant — are recognized as forming the foundation of ^- ^'"■''• the equitable bar in the judgment of Lord Selborne, in Lindsay Petroleum Co. v. Hurd (1874), 5 P. C. 221, at p. 239 : "The doctrine of laches in Courts of Equity is not an arbitrary or 'technical doctrine. Where it would be practically unjust to give a remedy, either because the party has by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these (-ases lapse of time and delay are most material. But in every .'.ase, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not y mounting to a bar by a Statute of Limitations, the validity T.L.A. S 258 CLAIMS IN EQUITY. [CHAP. Y, of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." In Erlanfjcr v. New Somhrew Phosphate Co. (1878), 3 App. Cas. 1218, p. 1279, Lord Blackburn, after quoting this passage, said: "I have looked in vain for any authority which gives a more distinct and definite rule than this ; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it " : see Be Sharpe, [1892] 1 Ch. 154, p. 168, C. A. ; liochefoucanhl v. Boustead, [1897] 1 Ch. 196, p. 210, C. A. Suggested distinction between executed and executory interests : ClarJci' V. Hart. (iii.) Whether Laches restricted to Executorij Interests. In Clarice v. llart (1858), 6 H. L. C. 638, Lord Chelmsford, C, suggested a division of equitable interests into "executed" and " executory," and he treated claims in respect of executed interests as being outside the doctrine of laches altogether, and as being liable to be lost only by abandonment or estoppel. "Where," he said, "a plaintiff is obliged to apply for the peculiar relief afforded by a Court of Equity to enforce the performance of an agreement, or to declare a trust, or to obtain any other right of which he is not in possession and which may be described as an executory interest, it is an invariable principle of the Court that the party must come promptly, that there must be no unreasonable delay. And if there is anything that amounts to laches on his part. Courts of Equity have always said we will refuse you relief. With regard to interests which are executed the consideration is entirely different. There mere laches w^ill not of itself dis- entitle the party to relief by a Court of Equity ; but a party may by standing by, as it has been metaphorically called, waive or abandon any right which he may possess and which, under the circumstances, therefore, a Court of Equity may say he is not entitled to enforce." And Lord Chelmsford treated the question of abandonment as depending upon estoppel, so that CIIAr. v.] WHERE NO STATUTORY LIMITATION IS APPLICABLE. 259 in determining what conduct would bar the plaintiff, the principle of the estoppel cases of Pickard v. Scars (1837), 6 A. & E. 4G9, and Freeman v. Cooke (1848), 2 Ex. (554, was applicable. The judgment of Lord Chelmsford in Clarke v. Hart is Explanation correct in aftirming that in certain classes of equitable claims — '^Eart'^^ "'^ ^ which may be described as concerned with executory interests — special promptitude is required, and in such cases the failure to sue with the requisite promptitude is properly described as laches ; but it is a mistake to suppose that the doctrine of laches is confined to such cases, and that a claim, for instance, to the benefit of an express trust — which is certainly an executed interest — cannot be defeated on the ground of laches. In Clarke V. Hart the plaintiff was not seeking the aid of equity to enforce or rescind a contract, or to obtain any other relief which required him to come with special promptitude. He was seeking equitable relief in respect of an existing partnership interest. The delay had amounted only to four years, and there had been no acquiescence on the part of the plaintiff or change in the position of the defendants so as to make it inequitable for the Court to interfere. There was in fact no laches, and so far as laches was concerned the plaintiff was entitled to succeed. But if he had been chargeable with acquiescence in the proper sense {supra, p. 253); if he had stood by while the violation of his right was in progress and had not complained ; he would have forfeited his right on this ground, quite independently of laches. This, however, was not the case, and the plaintiff", being clear both of laches and of acquiescence (in the proper sense) obtained the relief he sought. This, it is believed, is the explanation of Lord Chelmsford's judgment. The case of Clarke v. Hart is not to be taken as impugning the well-established principle that all claims in equity, which are not subject to a statutory limitation, are liable to be barred by laches. (iv.) Knowledije and Freedom Hssential. In so far as delay is evidence of acquiescence (using this Kiiowled->e term in the second sense), it cannot operate in the absence "^^^'^^^'^y ^^^ of knowledge of his rights on the part of the plaintiff". "In order that the remedy should be lost by laches or delay, it is. 260 CLABIS IX EQUITY. [CHAr. V In general knowledge facts sufiScient. When laches not imputed. if not universal]}-, at all events ordinarily necessary, that there should be sufficient knowledge of the facts constituting the title to relief" : Lindsay Petroleum Co. v. Hurd (1874), L. E. 5 P. C. p. 241. Without knowledge, indeed, there can be no acqui- escence. "Parties cannot be said to acquiesce in the claims of others, unless they are fully cognizant of their right to dispute them " : i>cr Turner, V.C, in Marker v. Marker (1851), 9 Hare, p. 16 ; see Burrous v. Walls (1855), 5 D. M. & G. 233 ; Jones V. Hifigins (1866), 2 Eq. 538. And knowledge is important, not only as forming an element in acquiescence, but also as making the plaintiff responsible for an}' change which may have taken place to the prejudice of the defendant. Any change which occurs in the position of the parties or the state of the property after such notice or know- ledge as to make it inequitable to lie by tells much more against the party in delay than a similar change before he was in delay would do : _2Jer Lord Blackburn, in Erlanger's Case (1878), 3 App. Cas. 1218, at p. 1279. For a party to have knowledge of his rights, he should in strictness be aw'are of the facts and of their legal consequences. " In equity it is considered, as good sense requires it should be, that no man can be held by any act of his to confirm a title, unless he was fully aware at the time, not only of the fact upon which the defect of title depends, but of the consequence in point of law ; jjcr Leach, M.Pi., in Cockerell v. Cholmeleij (1830), 1 Pi. & M. 418, at p. 425. And the Court has power to relieve against mistakes of law as well as against mistakes of fact: Stone v. Godfrey (1854), 5 D. M. & G. 76, at p. 90; Be Saxon Life Assurance Society (1862), 2 J. & H. 408, at p. 412. Thus where a plaintiff has been mistaken as to his rights, it may be that time will only run against him from the discovery of his mistake : Brookshank V. Smith (1836), 2 Y. & C. Ex. 58; Denys v. Slmckhurgh (1840), 4 Y. & C. Ex. 42. But generally, when the facts are known from which a right arises, the right is presumed to be known {Stafford v. Stafford (1857), 1 De G. & J. 193, at p. 202), and it is sufficient that the plaintiff has knowledge of the facts which constitute the title to relief: Lindsay Petroleum Co. v. Hurd (1874), 5 P. C. p. 241; see Molloy v. Mutual Bescrve Life Insurance Co. (1906), 94 L. T. 756, C. A. And similarly laches is not imputed while the party is not ascertained : Cator v. Croydon Canal Co. (1841), 4 Y. ifc C. Ex. CHAP. V.l WHERE NO STATUTORY LDIITATIOX IS APPLICABLE. 261 405 ; or is under the disability of infancy or lunacy : JMarcli v. liussdl (1837), 3 My. & Cr. 31 ; Youn;/ v. Harris (1891), 65 L. T. 45 ; or while his interest is future and he is under no present obligation to interfere : Life Association of Scotland v. Siddall (1861), 3 D. F. & J. p. 73 ; Kincan v. Kmnedu (1869), Ir. R. 3 Eq. 472, p. 484; Bennett v. Co//// (1833), 2 My. & K. 225; Mehrtens v. Andreas (1839), 3 Beav. 72; Butler v. Carter (1868), 5 Eq. 276 ; contra, Browne v. Cross (1851), 14 Beav. 105 ; or, where a transaction is impeachable on the ground of undue influence, until such influence has ceased : Gregorj/ v. Gref/orij (1815), Coop. 201 ; Eoherts v. Tunstall (1844), 4 Hare, 257 ; Allcard V. Skinner (1887), 36 C. D. 145, p. 163, C. A. An absolute conveyance, really made to secure a debt, 1 as been set aside after seventeen years, where the parties remained in ignorance of their rights, and under undue influence: Pnrcell V. M'Xaniara (1804), 14 Ves. 91. Where a claim is made by a married woman in respect of Efloct of property which is subject to a restraint on anticipation, the anticipation existence of the restraint does not exempt her from the ordinary consequences of lapse of time and acquiescence, even though the claim is founded upon a breach of trust: Dcrhishire v. Home (1853), 3 D. M. & G. 80, at p. 102 ; nor does it j)revent her from compromising a suit as to the corpus of her estate : see Wilton V. Hill (1855), 25 L. J. Ch. 156, at p. 158 ; though where she has made a conveyance in breach of the restraint, the con- veyance is not validated by lapse of time : Heath v. Wickhain (1880), 5 L. E. Ir. 285, C. A. But acquiescence will not be imputed where the real ground of the married woman not having sued earlier is that she was bound by covenant not to do so : Spranijc v. Lee, [1908] 1 Ch. 42-t, p. 431. (v.) Lapse of Time in Itself a Bar. In strictness it seems to follow from the foregoing authorities Wlicthermcie . o o lapse of time that, save ni cases where special promptitude is required as a a bar. condition of relief, the lapse of time is in itself no bar to a claim in equity. It is only a bar so far as it raises an inference, either alone or in conjunction with other circumstances, of some matter which renders the claim unenforceable; such as abandonment of the right, or acquiescence, or a balance of convenience in favour of its non-enforcement. And accordingly in Pirhrrinn v. Stamford (1793), 2 Ves. Jun. 272, 581, a bill to 262 CLAIMS IN EQUITY. [CHAP. V. have a bequest for charitable purposes declared void was allowed after thirty-five years, there being no presumption of a release by the next-of-kin or any difficulty as to accounts. But where there has been great delay the Court does not look for actual evidence of acquiescence or other circumstances, and in practice the delay itself is a bar to equitable relief. In the case of money claims and claims to account the lapse of twenty years raised, before the Civil Procedure Act, 1833, a jDre- sumption of satisfaction: Pomfrct v. Whuhor (1752), 2 Yes. Sen. p. 477, note ; Jone^ v. TurherviUc (1792), 2 Yes. Jun. 11 ; Campbell v. Graham (1831), 1 E. & M. 453. But, apart from this, a creditor's bill against residuary legatees was in Hcrcy v. Dbuvoody (1793), 2 Yes. Jun. 87, dismissed after thirty-three years' delay on the ground of gross laches. " Independent of the question of satisfaction," said Arden, M.B., " but on account of the very neglect, and the mischief and disturbance that may -arise to families, though the ]3resumption of satisfaction is not so strong, yet the laches and neglect may be such as to make it a matter of public policy that the party guilt}' of it shall abide by the consequences." In Harcourt v. White (1860), 28 Beav. 303, mere negligence for nearly twenty years was held to bar a claim to an account of timber improperly cut. " In this case," said Piomilly, M.E., " there is no express or active acquiescence ; the question of acquiescence, therefore, is confined solely to what may be inferred from the length of time which has elapsed ; in other words, the case is one of negligence to enforce her rights. The Court of Chancery, very wisely in my opinion, wholly independently of any Statute of Limitations, but simply as enforcing one of the doctrines of equity, is averse to the assertion of stale demands " : cf. Blahc v. Gale (1885), 31 C. D. 196. Hence it may be taken that (as suggested hy Hart, L.C., in Byrne v. Frcrc (1828), 2 Moll. p. 176), in cases of purely equit- able claims, twenty j'ears is an absolute bar, and where this period has elapsed, the mere delay renders the claim unenforce- able, unless infancy or some other disqualifying circumstance has lasted through substantially the whole of the time. Any shorter delay will depend for its effect on the principles above stated. Laches, however, is not imputable where the fund available for satisfying the claim has not been dealt with in an}- way, but is still in the hands of trustees or in Court : lie AshweWs Will (1859), Johns. 112. CHAP, v.] WHERE NO STATUTORY LIMITATION IS APPLICABLE. 263 If the effect of time depended only upon acquiescence there Claims by a would sometimes be a difficulty in placing any bar upon claims by a company. Where an act of directors is beyond their own powers, but is capable of ratification by the shareholders, then such ratification may be presumed from their acquiescence ; and for this purpose acquiescence does not necessarily imply active and intelligent consent. If there is notice of the trans- action and no opposition, acquiescence may be imputed to a body of shareholders ; and upon this ground the right of a liquidator to have a shareholder, who had been removed from the register by an ultra vires act of the directors, replaced on the list of contributories, was held to be barred by the lapse of eighteen years : Evans v. Smallcomhe (1868), L. E. 3 H. L. 249. Though it may be that, since a company cannot always act quickly, mere delay will not operate so strongly against a company as against individuals : Eiiangcr v. New SomJ)i'ero Phosphate Co. (1878), 3 App. Cas., p. 1280. Where, however, the claim is in respect of a misapplication of funds by a director, which neither the directors nor the company could authorize or ratify, a bar by time is impossible if this only takes effect as proof of acquiescence : see lie Sharpe, [1892] 1 Ch. 154, C. A. Such a case might now be within the statute by virtue of sect. 8 of the Trustee Act, 1888. But, apart from this, an excessive •delay in enforcing the claim would render it " stale," and so un- enforceable ; and certainly if, in addition to the delay, there had been such a change in the position of the defendant as to make the enforcement of the claim inequitable : see He Sharpe. (2) Application of the Doctrine of Ladies. The above are the general principles upon which equity refuses relief on the ground of delay. Their application to particular claims is illustrated by the following cases : — (i.) I-iircltases hi/ Trustees, etc. Upon a purchase of property by a trustee or other person Purchases by in a fiduciary relation the cestui que trust is entitled to the assistance of equity to have the purchase set aside : 'Ilioiupson V. Eastwood (1877), 2 App. Cas. p. 236; Sill'stoiie, etc., Coal Co. V. Edeij, [1900] 1 Ch. 1G7 ; but the claim will fail if there has been such, delay as to show acquiescence, or the delaj' alone, if excessive, will be a bar. ** The principle of the decisions is 2G4 CLAIMS IN EQUITY. [CHAP. Y, that the injured party has waived his right to relief:" Jloherts V. Tunstall {IQU), 4 Hare, 257, per Wigram, V.C, at p. 260, In Morse v. Roijcd (1806), 12 Ves. 355, the lapse of twenty years was, under the circumstances, treated as evidence of aban- donment ; in Gregory v. Oregon/ (1815), Coop. 201, eighteeiir years. " Can it be said," observed Grant, M.E., in the latter case, " that there is no distance of time at which circumstances originally entitling a party to relief may be considered as waived or abandoned ? Certainly there may. It is only a rule of equity that a trustee shall not purchase. In all the cases in which length of time has not been allowed to operate against the title to relief, it has been shown that there has been a continuance of the circumstances under which the transaction first took place, as of the distress of the parties, or of the improper influence used, or of some other circumstances." In lioherts v. Tunstcdl (supra), where a tenant for life with a) limited power of appointment had purchased the reversion from the objects of the power, a delay of seventeen years was treated as a waiver, and the poverty of the beneficiaries was in itself no excuse, though it was a circumstance to be taken into account. " Where," said Wigram, Y.C., " a transaction of this kind has been brought about by misrepresentation, concealment, or undue influence, or where the vendor is dependent on the bounty of the purchaser, the Court considers that the right of the vendor to rescind the sale exists without the imputation of laches, until such time as it is shown that he was released from the position in which he was placed by those circumstances. The poverty of a vendor, added to the other circumstances, is also a material ingredient in such a case " ; but otherwise, the Vice- Chancellor held, poverty does not prevent waiver. In Watson v. Toone (1820), 6 Mad. 153, a purchase made by an executor in 1790 was set aside in 1820 on a bill filed in 1806 ; but this was on the ground of concealment, and of the position of the plaintiff, who was an infant remainderman in 1790, and did not come of age till 1803. In the absence of concealment relief would not have been given. "If," said Leach, V.C, "an executor, ignorant of the rule of this Court, openly purchased assets of his testator with the full approbation of the parties then presently interested, the Court would not in that case press the equitable rule against him after such a length of time." In Baker v. Bead (1854), 18 Beav. 398, relief against a CHAV. V.l WPIERE XO STATUTORY LIMITATION IS APPLICABLE. 2G5 purchase of a testator's estate by the executor at an under value, was refused after seventeen years, solely on the ground of the delay. " I am of opinion," said Eomilly, M.R., " that the plaintiffs are prevented having any relief solely by the lapse of time which has occurred since the transaction complained of took place. ... I think I am bound by the rules of the Court, which require promptness and despatch in applying to this Court for relief, to say that after the lapse of time which has occurred in this case, no relief can be afforded." But the general tendency is to adhere to the doctrine of waiver. Thus, while a claim by a client to set aside a sale to his solicitor has been held to be barred in eighteen years {Champion v. Bighjj (18B0), 1 E. & M. 539), yet mere length of time has been said to be no bar, unless accompanied by circumstances which lead to the inference that the client was aware of his rights and acquiesced in the transaction : Gresley v. Mousley (1858), 1 Giff. 450 ; see Selsei/ V. Rhoades (1827), 1 Bl. N. S. 1. The effect of acquies- cence is increased where the property has passed through various hands, and the purchasers have laid out money upon it, and a title will be validated by time even though founded on breach of trust. Hence the Court has refused to set aside an improper sale by an executor where twenty years had elapsed since the youngest beneficiary came of age, the property having passed through many hands, and considerable sums having been laid out in improvements : Bonney v. liidf/ard (1784), 1 Cox, 145. But a purchase by a trustee has been set aside after the lapse of ten years : Hall v. Nojjcs (1796), cited in Which- eote v. Lawrence, 3 Ves. Jun. p. 748 ; and a purchase by an agent, under circumstances of concealment, after eleven years : Murphy v. O'Shea (1845), 2 Jo. & Lat. 422. In the case of a purchase of a reversion at an undervalue. Purchase of „ . . 1 , e ^ • e 1^ reversion, or of an improper exercise by a mortgagee oi his power oi sale, there may be a claim to relief in equity, but in general it will not be entertained after a long delay. An unexplained delay of sixteen years {Slhhcrincj v. Earl of Balcarras (1850), 3 De G. & Sm. 735), or twelve years {Moth v. Atwood (1801), 5 Ves. 845), has been held to bar a claim to set aside the sale of a reversion at an undervalue. In Sihherinfi v. Earl of Balcarras it was said that the Court was not bound to give relief in every case where, under analogous circumstances, the Statute of Limitations would not have applied at law. On the other hand, though a 266 CLAIMS IX EQUITY, [CHAP. V Sale by mortgagoe. Claims by mortaragees. Rcfundiut mortgagee is not a trustee for the mortgagor (Finr rrar v. Farrars, Ltd. (1888), 40 C. D. 409, C. A. ; Kenncdi/ v. De Trafford, [1897] A. C. 180), yet fifteen years has been held to be no bar to relief against an improper exercise by a mortgagee of his power of sale. "Even if it were a much longer time, it would be no bar to the right to redeem where relief is sought against the improj)er and oppressive exercise of a power of sale by the mortgagee " : iicr Stuart, V.C., in llohcrtson v. Xorris (1858), 1 Giff. 421 ; see Poolej/s Trustee v. ]Vh,'tham(188Q>), 33 CD. Ill, at p. 123, C. A.; Martinson v. Clowes (1882), 21 C. D. p. 860. But the statutorj^ bar of twelve years on the right to redeem (sujira, p. 89) would now give the limit to any such relief, and it is probable that in both these cases a shorter delay than formerly would operate as a bar. (ii.) FoUoicin{i Assets. Upon the death of a mortgagor the mortgagee can enforce his security either against the mortgaged property, or, under the covenant, against the personal estate of the mortgagor; and if the personal estate has been distributed, he can, upon his real security proving deficient, follow the assets into the hands of the legatees. In Lcahi/ v. I>e Molei/ns, [1896] 1 I. E. 206, C. A., it was held that the right to follow assets was not lost by the lapse of over thirty j^ears, the debt having been kept alive by payment of interest made by the owner of the mortgaged estate ; but this is an extreme decision, and even if the mere lapse of time is not a bar, yet the fact of the mortgagee knowing of the distribution of the personal estate, and omitting for many years to make any claim against it, will usually indicate either acquiescence in this mode of dealing with it so as to bar the equitable claim to refunding : Bidgwajj v. Xetr- stead (1861), 3 D. F. & J. 474 ; or a release of the personal estate from the mortgage debt: Blake v. Gale (1886), 32 C. D. p. 580, C. A. The mortgagee can also enforce his debt against other real estate of the mortgagor, provided it has not been aliened for value (infra, p. 371), but this is a legal claim, and is subject to different considerations. The claim subsists and is enforceable so long as the debt is duly kept alive : Bealnj v. De Moleijns (supra) ; Be Laeejj, [1907] 1 Ch. 330, C. A. A claim to follow the assets of a trustee who has committed a breach of trust into the hands of his legatees is not barred interests. CHAP. Y.] WHERE NO STATUTORY LIMITATION IS APPLICABLE. 26 1 merely by length of time, but only where the lapse of thne, with other circumstances, shows acquiescence : see March v. ItusscII <1837), 3 My. & Cr. 31 ; Be Cross (1882), 20 C. D. p. 124, C. A. ; and though equitable claims to the refunding of assets improperly dealt with in the course of administration are liable to be barred by laches, yet the delay must be considerable. A claim by a beneficiary to recover trust funds from another who had been overpaid has been allowed after twelve years : Ilarris v. Harris (1861), 29 Beav. 110. And as to refunding by residuary legatees, see Proirse v. Sjntrgin (1868), 5 Eq. 99. (iii.) Partnership Interests. In Clarke v. Hart (1858), 6H. L. C. 633, Lord Chelmsford, C, Pavtneiship treated claims for the enforcement of existing partnership interests as being outside the doctrine of laches : sujmi, p. 259. In his view they were only liable to be barred when there had been such an abandonment or waiver of the right as would estop the plaintiff from enforcing it. In that case Hart was a partner in a mining venture, and in 1850 his share in the partnership had been declared by his co-partners to be forfeited. The forfeiture was ineffectual, and in 1853 Hart filed his bill for a dissolution of the partnership and an account. During the intervening three years he had refused to recognize the validity of the forfeiture, and hence, notwithstanding the speculative nature of the property, there was no abandonment of his right so as to make his claim unenforceable. But where the plaintiff receives notice of a forfeiture of his interest and does not object, the lapse of a comparatively short time — in Prendere/ast v. Tiirton <1841), 1 Y. & C. C. C. 98 ; on appeal, 13 L. J. Ch. 268, nine years ; in Hale v. Jewell (1881), 18 C. D. 660, six years— will be held to prove abandonment. In Ilidr v. Jen-ell, Kay, J., adopted the period of six years as a bar in analogy to the statute, though the case was not one to which the analogy was appli- cable. In Gardrn, etc., Minbui Co. v. McLister (1875), 1 App. Cas. 39, a delay of four years was not an abandonment. In Palmer v. Moore, 1 1900] A. C. 293, the delay was short, but the accompanying circumstances were held to show abandonment. The fact that these cases were decided on the ground of abandon- ment does not imply that, had the delay Ijcen more prolonged, the doctrine of laches would not have been applicable. Not- withstanding the suggestion to the contrary in Lord Chelmsford's 268 CLAIMS IX EQUITY. [CHAP. V. judgment in Clarhc v. Jlart {ride supra, p. 258), a claimant to an existing partnership interest will sue in vain if he has slept on his rights for many years. The question in these cases was whether, the delay not being long enough to amount to laches, the plaintiff had nevertheless deprived himself of his remedy by actual abandonment of his right ; whether, in fact, he was barred by acquiescence in the strict sense : supra, p. 253. (iv.) ('o)iHtructive Trusts. Consfructivb A claim to establish a constructive trust is one which calls trusts £qj, promptitude, and is liable to be barred on the ground of acquiescence, or by delay alone. "It is true that a trustee cannot set up [the Statute of Limitations] against his cestui que trust, but this is merely the case of a trustee by implication, and as such affected by an equity ; but that equity must be pursued within some reasonable time " : Tou-nshcnd v. Tou-nsJieud (1783}, 1 Bro. C. C. 550, at p. 554. "It is certainly true," said Grant, M.E., in Bn-hford v. Wadr (1805), 17 Yes. 87, at p. 97, "that no time bars a direct trust as between cestui que trust and trustee ; but if it is meant to be asserted that a Court of Equity allows a man to make out a case of constructive trust at any distance of time after the facts and circumstances happened out of which it arises, I am not aware that there is any ground for a doctrine so fatal to the security of property as that would be ; so far from it, that not only in circumstances where the length of time would render it extremely difficult to ascertain the true state of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would originally have been given on the ground of constructive trust, it is refused to the party who after long acquiescence comes into a Court of Equity to seek that relief": <:/. Ex parte llasell (1839), 3 Y. & C. Ex. (;17. Constructive And the time within which a constructive trust can be trust of enforced depends also upon the nature of the property. In speculative ■■■ ^ . property. C7tv/f/ v. EduioudsoH (1857), 8 D. M. & G. 787, the managmg partners of a mining partnership at will gave notice of dissolution to the rest, and intimated their intention to apply for a new lease for their own benefit. They obtained the lease and carried on business with success. The excluded partners continually claimed to be entitled to participate, but they took no active steps to enforce their claim for nine years. It was held that CHAr. v.] WHERE XO STATUTORY LIMITATION IS APPLICABLE. 2()0 the claim was then too late. " We have,"' said Turner, L.J. (at p. 807), " to consider the question of delay and acquiescence, and in determining the effect due to these considerations, we must take into account both the nature of the right which is claimed and of the property in which it is claimed. We have to deal in this case, not with a direct, hut with a constructive trust, not with property subject merely to the ordinary con- tingencies by which all property is affected, and maintained at a moderate and scarcely varying expense, but with mining property which is subject to extraordinary contingencies, and which can be rendered productive only by a large and uncertain outlay. The authorities, I think, fully warrant us in saying that the rules which govern cases of direct trust, and apply to property of an ordinary character, do not equally ajDply to cases of constructive trust, and to property of the description which we have here to deal with": see SenJiouse v. Christian, cited 19 Yes. p. 159 ; Xoricay v. lloicc (1812), 19 Ves. 141. But a trust as to shares in mines was established after fifteen years in Turner v. Trclaaiwi/ (1811), 12 Sim. 49. (v.) Setting aside Gifts. Promptitude is equally required when a plaintiff' seeks to set Undue iuflu- aside a gift on the ground of undue influence. The length of ^^^^' time is regarded both as it affects the donor and the donee. As regards the donor it may show confirmation ; as regards the donee, it may induce him to settle his mode of life upon the iboting of the gift being effectual. No laches is attributable to the donor until he is sufficiently acquainted with his rights to enable him to assert them, and until he is free from the influence which invalidates the gift ; see j^c Kekewich, J., in Allcard v. Skinner (1887), 36 C. D. p. 1G3. But when he is aware of his rights, and the undue influence has ceased, the Court expects to find steps immediately taken, if the gift is to be impugned, in order that the persons affected may know what line of conduct they are to adopt with regard to the transaction : })er Lord Hatherley, C, in Turner v. Collins (1871), 7 Ch. 829. Hence a gift by a daughter to a father has been validated in ten years, notwithstanding coverture : Wright v. Vanderplank {1856), 8 D. M. & G. 133 ; a gift of a reversion has been validated in seven years from the time when the donor became aware of his rights : Turner v. Collins (sujmi) ; and in Allcard v. Skinner (1887), 270 CLAIMS IN EQUITY. [CHAP. A' 30 C. D. 1-15, C. A., the Court refused to set aside a gift to a religious sisterhood made in 1874 hy a lady who left the sister- hood in 1879, but did not take proceedings till 1887. A donor who does not apply for relief promptly, but leaves the donee to think and to act upon the belief that the gift is to lie where it has been laid, is estopped by conduct; though Bowen, L..J., who enunciated this doctrine, based his actual decision upon the ground that the donor had elected not to disturb the gift. In Hatch v. Hatch (1804), 9 Yes. 292, a gift of an advowson by a ward to her guardian was set aside after twenty years, but the relationship of guardian and ward continued for four years after the gift, and for the rest of the time the donor was under coverture. Moreover, the decision, which was an extreme one, has been referred to fraud {Turner v. Collins {supra)), and to the peculiar nature of the property: Bjimc v. Fr<'rc (1828), 2 Moll. 157. Specific per- formance. Eescissiou of contract. (vi.) Specific Performance and Rescission of Contracts. The rule that applications for the peculiar relief afforded in equity must be made promptly is acted upon with special strictness in claims to specific performance or rescission of contracts. " Specific x^erformance is relief which the Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will admit": per Cranworth, L.C., in Each v. Williams (1854), 4 D. M. & G. 674 ; see Barclay v. Messenger (1874), 43 L. J. Ch. p. 456. In the early cases a delay of seven years {Mihcard v. Ea>i of Limitations is applicable. A claim against executors to a ^^Sf^^es. legacy is subject to the limitation of sect. 8 of the E. P. L. A., 1874, and will consequently not be barred till the lapse of twelve years. But if the same persons are appointed executors and trustees of a will, and a legacy is left to them in trust, they will, upon appropriating money to answer the legacy, hold it ^ as trustees and not as executors {PhilUpo v. Munnings (1837), ; 2 My. & Cr. 309 ; supra, p. 172), and the limitation will be six years : Re Swain, [1891] 3 Ch. 233 ; He Timmis, [1902] 1 Ch. 176. Where in an action for money entrusted to a firm of solicitors Liability of for investment, the statute is excluded on the ground of the P^i^rtner for ' ° , Iraud of concealed fraud of one of the partners, and the fraud is, by co-partuer. virtue of the partnership, imputable also to an innocent co- partner, the latter is not protected by the Trustee Act, 1888 : Moore v. Knight, [1891 1 1 Ch. 547 ; iv/ra, p. 299. It is expressly provided in clause (h) that where the statute Future runs by virtue of that clause, " it shall run against a married iiife^eats. woman entitled in possession for her separate use, whether with or without a restraint on anticipation, but shall not begin to run against any beneficiary unless and until the interest of such beneficiary shall be an interest in possession." The effect is that in the ordinary case of trust funds being settled on trust for a tenant for life and then for persons in remainder, the statute will run in favour of the trustees from the date of the breach of trust as against the tenant for life, notwithstanding that such tenant for life may be a married woman restrained from anticipation ; but, as against the remaindermen, only from the date when they become entitled in possession : lie Taylor 286 CLAIMS IN EQUITY. [CHAP. Y. (1900), 81 L. T. 81'2. Consequently, if the tenant for life is barred, but the remaindermen are not, the case is met by ordering the trust funds to be replaced, but allowing the trustees to receive the income during the life tenancy : Want v. Campa'ui ^^^^.**y^s^^*-^ (1893), 9 T. L. E. 254 ; li,'. Somerset, [1894] 1 Ch. 231, C. A. ; jC I^?'^^^' (7(>/Z/?i//.s V. Wade, [1890] 1 I. li. 340. The payment of interest to the tenant for life on a fund improperly invested is not an acknowledgment of the trustees' liability in regard to the fund, so as to take the case out of the statute and save the rights of the tenant for life : Re Homemet. But a bar to the immediate life interest is not a bar also to any subsequent interest which the tenant for life may have, and, as regards such subsequent interest, the statute does not run until it falls into possession : Mara Y.Bnncnc, [1895] 2 Ch. 09. And as to suits by remainder- men on their interest falling into possession, see Hau-kins \. Gardiner (1854), 2 Sm. ,\' Gifi". 441. CHAPTER YI. EXTENSION or THE PERIOD OF LIMITATION. When the statute has once begun to run against the right to bring an action, that right is in general barred by the lapse of the period applicable to the case ; but such period may be extended by reason of disability in the plaintiff, and, in certain cases, by the absence abroad of the defendant ; and a similar effect is produced in cases of concealed fraud by the rule that the right of action is not deemed to accrue till discovery of the fraud. Section I. — Disability. (1) Land and lient-chargcs. If at the time when the right to recover land or a rent-charge Extension of first accrues the claimant is an infant, or a married woman — disability but as to coverture, see infra, p. 289 — or of unsound mind, he is not necessarily barred by the lapse of the statutory period of twelve years, or, in the case of a reversioner where the owner of the particular estate was out of possession, six years (R. P. L. A., 1874, s. 2), but a further period of six years is allowed from the time when the disability ceases, or, if death occurs during the disability, the same period from the death is allowed to the succeeding owner (K. P. L. A., 1874, s. 3). But for a claimant to have the benefit of this provision, the disability must exist when the right of action first accrues either to himself, or to some person through whom he claims. Thus, where a right of action to recover land accrued in 1871 to a tenant in tail not under disal^ility, who died in 1882 without having commenced proceedings, and the issue in tail was then an infant, he was entitled to no allowance for disability. Time was already running against the claim, and his action, commenced in 188U, 288 EXTENSION OF THE PERIOD OF LIMITATION. [CHAP. YI. Eent-chare:e. Successive disabilities same claimant. Maximum period. was too late: Murran \. Wathlns (1890), 62 L. T. 796; Garner V. Wingrove, [1905] 2 Ch. 233. Since, in the case of a rent-charge, the statute runs, not from the date of failure to pay the rent-charge, but from the last receipt, a person who is of sound mind at the date of the last receipt, but is lunatic ^Yhen the rent next falls due and is not paid, will have no allowance for his disabilit3\ His right of action is deemed to have accrued when he was still of sound mind: Oicen v. De Beauroir (1847), 16 M. & W. p. 567; 5 Ex. p. 182 {supra, p. 46). But, provided some disability exists at the accrual of the right of action, the statute continues to be excluded during any further disability which may exist in the same claimant : Borrows- V. Ellison (1871), L. E. 6 Ex. 128. The rule was the same before the E. P. L. A., 1833 : Lessee of Supple v. llaymond (1830),. Hayes, 6. There is, however, no allowance for a second disability in a successor in title to the person under disability when the right accrues: E. P. L. A., 1833, s. 18; and the entire period allowed in a case of disability may not exceed thirty years : E. P. L. A., 1874, s. 5. The following are the sections in which these rules are contained : — K. P. L. A., 1874, s. :3. In cases of infancy, coverture, or lunacy at the time wlien the right of action accrues, then six years to be allowed from the termina- tion of the disability or previous death. E. P. L. A., IS33, s. 18. Xo further time to be allowed for disability of successor. " If at the time at which the right of any person to make am entiy or distress, or to bring an action or suit, to recover any land or rent, shall have first accrued as aforesaid, such jDerson shall have been under any of the disabilities hereinafter 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 an action or suit, to recover such land or rent, at any time within six years next after the time at which the person to whom such right shall first have accrued shall have ceased to be under any such disability, or shal^l have died (whichever of those two events shall have first happened)." " When any person shall be under any of the disabilities, hereinbefore mentioned at the time at which his light to make anh 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, «'IIAr. YI.] DISABILITY. 289 beyond the said period of twelve 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 six years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person." The periods of twenty and ten years originally contained in this section were altered to twelve and six years by sect. 9 of the Act of 1874. " No entry, distress, action, or suit shall be made or brought k. p. L. A , by any person who at the time at which his right to make any IS?*, s. 5. entry or distress, or to bring an action or suit to recover any land tiie^utmoa'r^ or rent, shall have first accrued, shall be under any of the dis- allowance for nbilities hereinbefore mentioned, or by any person claimin^^ disabilities, through him, but within thirty years next after the time at which such right shall have first accrued, although the person under dis- ability 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." Under sect. IG of the E. P. L. A., 1833, an extension of time Abolition of ■was also allowed in the case of absence beyond seas ; but this be^oMseas -^^ L. T. 756, C. A. Fraud which will exclude the statute is frequently referred to as "concealed fraud." "It has always heen a principle of equity that no length of time is a bar to relief in the case of fraud, in the absence of laches on the part of the person defrauded. There is, therefore, no room for the application of the statute in the case of concealed fraud, so long as the party defrauded remains in ignorance without any fault of his own " : per Lord James of Hereford, in Privy Council, in BvlU Coal Minimi Co. v. Oshonie, [1899] A. C. 351, at p. 363. This, however, does not imply that there must be active concealment. It is no more than an assertion that the fraud, which in its nature is secret, is also undiscovered. Thus in cases of fraudu- lent taking of minerals by underground trespass, it is not necessary, as was suggested in Dean v. Thicaife (1855), '11 Beav. 621, and held mile Astleij, etc., Coal Co. and Ti/hlesle}/ Coal Co. (1899), 80 L. T. 116, that steps should have been taken to conceal the fact. And although the mere breaking of bounds into a neighbour's colliery is not to be regarded as fraudulent for the purpose of the statute — as was suggested by Malins, Y.C., in Ecelesi((stieal Commissio)iei-s v. N. E. Iti/. Co. (1877), 4 C. D. 845 — yet the fact that the taking of coal is in pursuance of a wilful trespass, and is secret, makes the taking fraudulent, and an account will be directed of the whole coal taken and will not be limited to six years : Bidli Coal Mining Co. v. Osborne, [1899] A. C. 351. In cases of inadvertent trespass the account is. limited to six years : Lli/nri Co. v. Brogden (1870), 11 Eq. 188 ; Jlilton v. JVoods (1867), 4 Eq. 432 ; Trotter v. Maelean (1879), 13 C. D. 574; Dawes v. Bagncdl (1875), 23 AY. E. ()90. If for any reason an action does not lie at the time when the fraud is discovered, then the statute does not commence to run until an action could be brought. Thus if the fraud is discovered during the bankruptcy of the party injured, since he cannot then bring an action, the statute does not run till the end of the bankruptcy : lie Crosleji (1887), 35 C. ]). 266, C. A. (2) Simple Contract, Tort, and Speeiedty Debts. At comiuon law no allow- j^ regard to actions which are liable to be barred under the ance for fraud. ° . -r^ ■, . - ri ^ » , i Limitation Act, 1623, and the Civil Procedure Act, 1833, there CHAP. VI.J FRAUD. is no provision for any extension of time on the ground of fraud, and, prior to the Judicature Acts, courts of law refused to allow that a replication of concealed fraud could get rid of a defence of the •statute : Imperial Gas Co. v. London Gas Co. (1854), 10 Ex. 39. The terms of the statute, it was said, were absolute, and there was no provision for the case where a person was prevented from suing by fraud : Hunter v. Gibbons (185G), 1 H. & N. 459. If, Equitable however, a suit for a similar matter was brought in equity, then, prevails, as just stated, the Court of Chancery, in applying the statutory limit by way of analogy, applied it on its own terms — namely, that the statute should not be set up unjustly — and it declined, therefore, to allow the statute to operate until the fraud was, or might have been, discovered : Booth v. Warriniis v. Guild. Pro- vided that there would, prior to the Judicature Acts, have been •concurrent remedies at common law and in equity, then the •action, wherever brought, is now subject to the equitable doctrine. Active concealment of the fraud is not required. If the fraud is secret, then the statutory period is postponed to the time when it was, or with due diligence might have been, discovered ; and the six years or other period then begins to run. On the other hand, if there is no fraud, a defendant is not deprived of the benefit of the statute because the plaintiff was not aware, ^luring the statutory period, that he had a cause of action. Hence, in an action for negligence against a solicitor, the con- cealment of the negligence till within six years is no answer, if the defendant "was not guilty of fraud: Arnislron(?r Kay, L.J., in Willis v. Earl Howe (supra). CHAP. VI.] FRAUD. ,^03 In I'aiic V, ]'(in<' (1872), S Cb. 888, the bill alleged tbat Vane v. Vane. by the secret alteration of a register an eldest cbild who was really illegitimate, was made to appear legitimate, and the eldest legitimate son in consequence was kept out of bis inberi- tance. James, L.J., said: "It is difficult to conceive what would be a concealed fraud, if what is alleged here is not, namely, tbat a person is induced, by a deception practised on him from his earliest knowledge, to believe tbat be was only a younger son when be was the eldest son, or bow a person could be more effectually deprived by fraud of bis estate than by bis being designedly, by the persistent falsehood and deceit of those about him, kept in ignorance of bis birthright, and so prevented from claiming it." In (.'ItctJtain v. Hoarc (1870), 1) Eq. 571, also, the alleged fraud consisted in the tampering with a register ; in Laicrencc v. Lord Xorrcys (1890), 15 App. Cas. 210, it was the destruction of a tombstone ; in Willis v. Earl Howe, [1893] 2 Cb. 545, C. A., it was the putting forward of an illegitimate child as the lawful heir. In Stimjis v. Morse (1854), 24 Beav. 541, an insolvent sturqU v. debtor had, in 1825, fraudulently omitted from his schedule -^^'"■*^- reversionary property to which he was entitled, and which fell into possession the following year. In 1853 bis assignee filed a bill to recover it from the assignee under a subsequent bank- ruptcy. Komilly, M.R., held that there was a concealed fraud, and tbat the statute had not run. " I am of opinion," he said, "tbat, there being at the time nothing to point out to the assignee that [the insolvent debtor] had any other property than tbat stated in the schedule, the fact of his deliberately stating in the schedule that which was false, namely, that he bad no reversion, was a ' concealed fraud,' and that, by reason of such fraud, the assignee in insolvency was prevented from acquiring this property, or, in the words of the statute, was * deprived ' of the property." In general, however, the mere with- holding of information which ought to be communicated to the party entitled is not a concealed fraud within the meaning of the statute : per Lord Chelmsford, in Arrhhold v. Scidlij (1861), 9 H. L. C. p. 884. In Lewis v. Thomas (1843), 3 Hare, 26, it was suggested by Procuring "Wigram, Y.C., that the procuring instruments of devise and fro'^mYifu;ltic conveyance to be executed by a person of unsound mind was a concealed fraud under sect. 26. But lunacy is protected by the 504 EXTENSION OF THE PERIOD OF LIMITATION. [CHAP. YI. Possession mines. Fraud must be by defendant. saving for disability : Manltij v. Bemclcc (1857), 3 K. & J. 342 ; though there may be cases in which the lunacy of one of the parties is a material element in determining whether the person entitled has been deprived of his land by a concealed fraud : cf. Price V. Berrbujton (1851), 3 Mac. & G. 486. The effect of fraud as regards claims to an account of minerals secretly taken has already been considered. In an action for the recovery of the mines themselves the concealed fraud which will save the statute is similar to that in the case of a claim to surface land. There must be an intentional trespass by the wrongdoer, and steps taken to prevent discovery by the owner. Mere ignorance of the trespass on the part of the owner does not prevent the running of the statute : see Dawkins v. PcnrJu/n (1877), 6 C. D. p. 324, C. A. The suggestion to the contrary in Adnam v. Earl of Sandwich (1877), 2 Q. B. D. p. 489, appears to be incorrect : sirpra, p. 47. Nor does such ignorance make the intrusion fraudulent. There must, as was said by Fry, J., in Rains v. Bu.rton (1880), 14 C. D. p. 540, be fraud and concealment of fraud, and in that case concealed fraud was not proved by the fact of possession having been taken of an underground cellar, there being no evidence of an attempt to conceal the possession from the owner. Apart, however, from any question of concealed fraud, the statute will not run against the owner of the mines, unless adverse posses- sion has been effectively taken, and in this respect it may be important to inquire whether the owner was cognizant that acts of trespass were being committed: Earl of Dartmouth y. Sjyittle (1871), 19 W. E. 444 (stipra, p. 44). The concealed fraud, moreover, must be the fraud of the person who sets up the statute, or of some person through whom he claims. In McCallum v. McCallum, [1901] 1 Ch. 143, C. A., A., in September, 1884, by voluntary deed, conveyed the house in which he and his wife and daughter were residing to his wife in fee. Later in the same month the wife by voluntary deed conveyed the house to the daughter, who was the plaintiff in the action, but she concealed the deed from the daughter, intending that it should only be communicated to her in certain events. A., who did not know of the wife's conveyance, continued to reside with his wife in the house till her death in 1888, and subsequently he lived in it, or received the rents, till his own death in 1899. He devised all the residue of his property to CHAP. VI.] FRAUD. 305 the defendant, his niece, who, in answer to the daughter's claim, set up the statute. The daughter attempted to exclude the statute on the ground of her mother's concealed fraud, but it was held by the Court of Appeal (Lord Alverstone, C.J. and Yaughan Williams, L..J., Eigby, L.J., diss.) that, since the defendant did not claim through the mother, sect. 26 did not apply. (ii.) Deprivation hy the Fraud. In addition to making out a case of concealed fraud, the Owner must plaintiff who relies on sect. '2G must show that he or his pre- by the^fraud. decessor in title has been actually deprived of the land by the fraud. In Lawrance v. Lord Xorreys (1890), 15 App. Cas. 210, Lawrance\. an action was brought to recover possession of the Towneley °^' ^ '"''^^Z'- estate in Lancashire. Eichard Townele}^ a former owner of the estate, died in 1706. It was alleged that Mary, his daughter, married John Lawrance, and died in America in 1742. She became heiress to Eichard Towneley, and Jonathan Lawrance, a descendant of hers, returned to England and recovered pos- session of the estate under a compromise with one John Towneley. Jonathan Lawrance was said to have remained in possession till his death in 1816. His son and heir, Lebius Lawrance, was then in America, and the alleged fraud was as follows : — When the solicitors of Jonathan Lawrance were about to communicate to Lebius Lawrance the facts of his title, John Towneley, who had taken possession of the estate, intervened, and induced them not to do so. He further obtained from them, and destroyed, the evidence of Jonathan Lawrance's title, in- cluding the deed of compromise. And, lastly, he procured to be taken up and destroyed the tombstone erected over the grave at Walpole, in Massachusetts, of Mary Towneley, afterwards Mary Lawrance, and her husband, on which certain material particulars establishing the identity of Mary Towneley, and certain material particulars other family were inscribed, Lebius Lawrance being ignorant of the facts inscribed on the tombstone. The plaintiff claimed through Lebius Lawrance as heir-at-law of Jonathan Lawrance. As to the failure of the solicitors to communicate with Lebius Lawrance, it was held that this only shut up one avenue by which Lebius Lawrance could have ascertained his rights ; and. T.L.A. X 306 EXTENSION OF THE PERIOD OF LIMITATION. [CHAP. YI. assuming, as might properly be done on the pleadings, that he was aware of his father's journey to England, and the object of it, other means of ascertaining them were available ; while, as to the destruction of the tombstone, it did not appear that Lebius Lawrance or his successors in title knew of its existence, or would have done so but for its destruction. Consequently by neither of these circumstances could they be said to have been deprived of the property. As to the other allegations there was nothing to show that with due diligence they could not have been discovered earlier. Willis v_ Where there is at first a mere wrongful entry, so that the Earl Howe. statute commences to run against the person entitled, and sub- sequently possession is taken or kept by means of a fraud, this does not bring the case within sect. 26. The owner is deprived of the land by the wrongful entry, not by the fraud. In WilUs v. Earl Howe, [1893] 2 Ch. 545, William Jennens, who was in posses- sion of real estate, died intestate in 1798. It was alleged that Lady Sophia Curzon, afterwards Baroness Howe, wrongfully took possession on behalf of her infant son, George Curzon, claiming that he was heir-at-law, and that on his death in infancy in 1805, she continued to hold possession on behalf of Eichard Curzon, falsely pretending that he was the younger brother of George, when, in fact, he was the illegitimate child of one Ann Oakes. This was said to have been fraudulently concealed from the predecessors in title of the plaintiff who claimed as heir-at- law of William Jennens. It was held that what really deprived the plaintiff's predecessors of the land was the wrongful entry in 1798, as to which there was no fraud and no concealment. Consequently the subsequent alleged fraud was immaterial. (iii.) Failure to discover the Fraud. Rsasonabie To support a claim founded on concealed fraud it must diligence. further be shown that the alleged time of discovery was the earliest at which with reasonable diligence discovery could have been made. This is a point which it is for the claimant to prove, and, for the safety of persons in possession of property, the Court insists on its being proved strictly. In other words, it will assume, whenever possible, that the fraud might have been discovered earlier. CHAP. YL] FRAUD. 307 In Clietham v. Hoare (1870), 9 Eq. 571, the action was to Cketham v. recover estates which had been in the possession of the '""^*" defendants and their predecessors in title for 149 years. The title of the plaintiff depended on proof of a marriage between Timothy Chetham and Hannah Ashton, and it was alleged that repeated search for evidence of this had formerly been made. The plaintiff, upon the death of his father in 1863, renewed the search, and during a visit to the diocesan registry at Chester he discovered by mere chance an index of marriages which showed that the one in question had been celebrated at Holy Trinity, Salford, in 1724. There were indications that the page containing this entry had at one time been gummed or pasted to the opposite ]3age. The plaintiff went to Holy Trinity and found that the whole of the page of the register, upon which the entry should have been inscribed, had been torn out. Assuming that these allegations could have been proved, there would seem to have been a case of concealed fraud, but the bill was demurred to, and Malins, V.C., allowed the demurrer. He commented upon the danger of upsetting ii title founded on such a length of possession, and refused to believe that for more than a century after the marriage took place no diligence could have found other means of proving it. The section was applied with equal strictness in Be Jennens, Willis v. Ead Howe (1880), 50 L. J. Ch. 4. A trustee in bankruptcy, who sets up a case of concealed fraud, shows no lack of due diligence by omitting to make inquiries which might have led to the discovery of the fraud, but which he was under no obligation to make : Sturgis v. Morse (1857), 24 Beav. 541 {supm, p. 303). In considering whether due diligence has been shown no allowance will be made in respect of the mental incapacity of the claimant. He gains no advantage from the fact that he is too imbecile to detect a fraud which would have been discovered by a person of ordinary mental capacity: Ma)thi/ v. Bcwicke (1851), 3 K. & J. 342. CHAPTEK VII. STOPPING THE STATUTE. jModes of stopping the statute. The running of the statute may be stopped in the case of land by re-entry, and in all cases by the commencement of an action to enforce the claim of the person entitled. It may alsa be stopped by acknowledgment or part payment. The nature of re-entry has been already stated : supra, p. 11. Issue of writ. Amendment to exclude statute not allowed. Section I. — Commencement of Action. (1) Issue and Itencnrd of Writ. The various Statutes of Limitation provide that no pro- ceedings shall be brought to enforce the claim which is the subject of limitation after the prescribed period. Hence the running of the statute is stopped by the commencement of proceedings — that is, in ordinary cases, by the issue of a wait in an action. But it is essential that the w^'it shall be issued before the statute has run, and, if the plaintiff has by inad- vertence allowed the statutory period to expire, he cannot cure his error by having the writ ante-dated. By Pi. S. C, 1883, Ord. 2, r. 8, it is required that a writ shall bear date on the day on which it is issued — that is, on the day on which it is sealed — and the Court has no power to alter the date of the writ so as to save the statute : see Clarke v. Smith (1858), 2 H. & N. 753, decided on the corresponding provision of sect. 5 of the C. L. P. A., 1852. The issue of the writ, however, is not conclusive of the final scope of the action. Changes may be required which enlarge the claim or alter the parties. But although in both respects the Court has a general power of allowing amendments, yet this will not be exercised so as to deprive a defendant of the benefit of the statute. " x\mendments are not admissible when they prejudice the rights of the opposite party as existing at the date CHAP. VII. I COMMENCEMENT OF ACTION. 309 of such amendments " : per Lord Esher, M.E., in WcJdon v. Ncal (1887), 19 Q. B. D. 394, C. A. Consequently an amendment can- not be made so as to introduce a fresh cause of action which has become Ijarred since the date of the writ : Weldon v. Xeal ; Hwhon V. Ferm/hough (1890), 61 L. T. 722; on app. 34 Sol. Journ. 228 ; Lancaster v. Moss (1899), 15 T. L. E. 476, C. A. And the defendant cannot amend if the effect is to show that a third party, in whose favour the statute has run, is liable : iSteward v. Xorth Metropolitan Tranucays Co. (1886), 16 Q. B. D. 556, C. A. Formerly an error as to parties led to a non-suit. This striking out meant that a fresh action had to be commenced, and, if the P''^'*'^^- statute had run in the interval, the plaintiff would be barred. But the Court was averse to allowing an action to be nullified after the statute had run through irregularity of procedure : Markeij v. Bowdell (1852), 2 Ir. C. L. E. 117 ; and where the error consisted in the joinder of improper parties, the non-suit might be set aside and the parties struck out by amendment : Craicfurd v. Cocks (1851), 20 L. J. Ex. 169. Non-suit is now abolished, and no cause is defeated by reason of the misjoinder or non-joinder of parties. Under Ord. 16, r. 11, parties may be struck out or joined, and consequently any error as to parties can be cured without prejudice to the currency of the action. Thus the fact that the statutory period has run since the issue of the writ presents no difficulty when it is desired to strike out parties. But it is otherwise where it is desired to add a defendant in Joinder whose favour the statute has run since the issue of the writ. A aefcndantnot mere substitution of a real for a nominal defendant — as of a allowed after company for its officer {Coombs v. Bristol and Exeter Ilij. Co., nm. 1858, 1 F. & F. 206)— would be permitted ; and in ChaUinor V. lioder (1885), 1 T. L. E. 527, a Divisional Court (Denman, J., Grove, J., diss.) dismissed an appeal against an Order in Chambers substituting the real name — John Myatt — of one of three defendant executors, for the name, John Hill, which had been mentioned in the writ. This was upon the ground that it was only just to the other two that Myatt should be joined, and that since power to join him existed under Ord. 16, r. 11, it ought to be exercised. But, in general, a writ cannot he amended by adding a defendant against whom the Statute of Limitations has run : see Ihjron v. Cooper (1847), 11 CI. & F. 310 STOPPING THE STATUTE. [CUAP. YII. Renewal of writ. Prusent practice as tc renewal. 556 ; though an error in the Christian name of a defendant may be corrected : see llyan v. Shccluj (1848), 12 Ir. L. E. 44. A writ issued, but not served, may be kept in force for the purpose of saving the statute by renewal. Under the C. L. P. A., 1852 (15 & 16 Vict. c. 76), s. 11, no restriction was placed on successive renewals. The original writ was in force for only six months, but if any defendant had not been served, the writ might at any time before its expiration be renewed for six months from the date of renewal, and so on from time to time during the currency of any renewed writ. The renewal was effected by having the writ resealed, and it was expressly provided that a writ so renewed should remain in force and be available for preventing the operation of the Statute of Limitations. But resealing required the production of the original writ. If this was lost, the Court would not allow the resealing of a verified copy so as to save the statute : Davie s v. Garhml (1876), 1 Q. B. D. 250. The corresponding provision in Ireland — sect. 28 of the C. L. P. (Ir.) A., 1853 (16 & 17 Vict. c. 113)— contained a proviso that the renewed writ should not be available to prevent the operation of the statute unless the renewal was " had by leave of the Court or a judge on an affidavit to satisfy the said Court or a judge that reasonable diligence was used to effect service thereof." Pienewal of writs is now regulated in England by Pt. S. C, 1883, Ord. 8, r. 1, and in Ireland by R. S. C. (Ir.) 1891, Ord. 8, r. 1, and these rules follow the lines of the Irish statute just quoted. The original writ remains current for twelve months, but, if any defendant has not been served, the plaintiff' may, before the expiration of the twelve months, apply to the Court or a judge for leave to renew the writ ; and " the Court or a judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons l)e renewed for six months from the date of such renewal inclusive, and so on from time to time during the currency of the renewed writ." The direction that the six months shall be inclusive of the day of renewal is an adoption of the construction given to sect. 1 of the C. L. P. A., 1852 : Anon. (1863), 1 H. & C. 664; cf. Anon. (1854), 24 L. J. Q. B. 23. The writ is renewed by a fresh sealing, and the rule provides, like that section, that the renewed CHAP. Vir.l COMMENCEMENT OF ACTIOX. 311 writ shall remain in force and be available to prevent the opera- tion of the Statute of Limitations from the date of the issuing of the original writ of summons. Provision for the case of a lost "writ is made by Ord. 8, r. 3, and a coj^y maybe sealed on renewal. Thus the plaintiff has no longer the right of renewal. The renewal can only be effected by leave — and this was held to be so although the original writ was issued before the Judicature Act, 1873 {Tlume v. Somerton (1890), 25 Q. B. D. 239)— and, in order to obtain leave, the plaintiff must come within twelve months of the currency of the original writ, or six months of the currency of a renewed writ. Under the old practice the plaintiff" was bound to come for Failure to renewal strictly within the prescribed time. It he did this and time7 failed to obtain renewal through the default of an officer of the Court, he was entitled to indulgence : Xazer v. Wade (1861), 1 B. k S. 728; 31 L. J. Q. B. 5; Anon. (1862), 31 L. J. Q. B. 61. But he got no indulgence if he came to renew on the last day and found the office properly shut : Evans v. Jones (1862), 2 B. & S. 45. If the last day was a Sunday, he was bound to renew on the Saturday : Anon. (1854), 24 L. J. Q. B. 23 ; and if for one or more of the last days the office was closed for holidays,, he was bound to come on the last day before the expiration of the six months on which the office was open: Anon. (1862), 31 L. J. Q. B. 61. And though the failure to renew in time was due to the inadvertence of the plaintifl''s solicitor, the Court- would not order a resealing of the writ nunc loro tunc, so as ta save the statute : Bailey v. Owen (1860), 9 W. Pu 128 ; Nazcr v. Wade (supra); Anon. (1862), 31 L. J. Q. B. 61. The Court or a judge now has power under Ord. 64, r, 7, to No enlarp^e- enlarge any time appointed by the rules, even though the appli- ™^gave cation for the enlargement is not made till after the expiration statute. of the appointed time. But this power will not be exercised so as to enable a plaintiff against whom the statute has run to proceed with his action : Ihijle v. Kaufman (1877), 3 Q. B. D. 7, 340, C. A. ; Magce v. Hastings (1891), 28 L. Pt. Ir. 288. And in Jleivett V. Ban-, [1891] 1 Q. B. '98, where the omission to apply for renewal in time was accidental, the Court of Appeal followed Doyle V. Kaufman, though Kay, L.J., thought that under excep- tional circumstances the Court might exercise its jurisdiction to enlarge the time. It is safer to assume, however, that inad- vertence is not a ground for indulgence, and that the only 512 STOPPING THE STATUTE. [CHAP. vn. Several defendants. Concurrent ■writ. How far statute saved. Eevivor of suit. ground on which the plaintiff can excuse his failure to appl}' for renewal in time would be that he had been prevented by the default of an officer of the Court. Where there are several defendants, and renewal has been allowed on an affidavit of inability to serve one, this saves the statute as to all, although the others could have been served and were not : Dickson v. Capes (1860), 11 Ir. C. L. E. 334. Where an original writ has been dul}^ kept in force, and it is found necessary to issue a concurrent writ for service out of the jurisdiction, this may be allowed, notwithstanding that the statute has then run : S^nalpagc v. Tonge (1886), 17 Q. B. D. 644, C. A. The writ only saves the statute for the purpose of the par- ticular action which it originates. Its pendency does not enable a fresh action for the same subject-matter to be commenced in another division of the High Court after the statute has run : Manhij v. Manhy (1876), 3 C. I). 101. And any renewals must be in strict accordance with the rules : Pratt v. Haichins (1846), 15 M. & W. 399, at p. 403. When one of several plaintiffs dies before the trial, and judgment is given for the defendant, an order of revivor will not in general be made under K. S. C. Ord. 17, r. 4, in favour of his personal representatives, though possibly this would be done if the bringing of a fresh action had become impossible b}' reason of the statute : Amison v. Smith (1889), 40 C. D. 567, at p. 570, C. A. But it may well become necessary to revive an adminis- tration action, and the right to do so after decree is not barred by lapse of time, though revivor may be denied in cases of gross ueghgence or laches : Alsop \. Bell (1857), 24 Beav. 451 ; lie Johnson (1885), 29 C. D. 964, at p. 970; Michlcthwaite v. Vavasour (1893), 37 Sol. Journ. 386. Administra- tion action. (2) Administration aiul Inciunhranccrs'' Actions. It w^as formerly the rule that the filing of a bill for adminis- tration saved the statute as to all'creditors whose claims were not then barred. This was based both upon the nature of the suit, and upon the nature of the jurisdiction in equity. The suit, being brought on behalf of the plaintiff and all other creditors, was the suit of all ; moreover, the Court, not being bound by the statute, would not follow the analogy of the statute so as to CHAP. VII. 1 COMMENCEMENT OF ACTION. 313 make it necessary for each creditor to file a separate bill : Stcrndah' v. Ilankinson (1827), 1 Sim. 393. The latter reason, SUrn'Jale v. as was pointed out in Berrbuiton v. Evans (1835), 1 Y. & C. Ex. 434, was removed as to judgment creditors by sect. 40 of the n. P. L. A., 1833, which placed an express limitation of twenty years upon suits in equity, as well as actions at law, to recover judgment debts. And it was there held that a judgment creditor, who had not been cognizant of the bringing of the suit, could not take advantage of it after the lapse of many years, though possibly it would be available for a creditor who knew of the filing of the bill and intended to prosecute his claim iu the suit. The cases of >S7. John v. Boui/hfon (1838), 9 Sim. 219, and Watson V. Birch (1847), 15 Sim. 523, on the other hand, suggested that nothing but an actual claim by a creditor would stop the statute running against him. In the former case, however, the debts in question had been kept alive by acknowledgment, and in the latter the suit was not on behalf of creditors generally. In Ireland the case of Stcrndale v. Ilankinson was treated StermMe x. with more favour than here. It was admitted, indeed, in foUowed"^ accordance with Berrinf/ton v. Evans {supra), that a creditor's Ireland, suit could not be treated as the suit of a creditor who was unaware of it until it was too late for him to make his claim in the ordinary course : O'Kdhj v. Bodkin (1841), 3 Ir. Eq. E. 390; Hutchins v. ff Sullivan (1847), 11 Ir. Eq. E. 443. But a suit, whether expressed to be on behalf of all creditors or not, which resulted in an administration decree, was treated as the suit of all creditors who came in under the decree, as well where it was commenced before the E. P. L. A., 1833 Uf Kelly v. Bodkin (1840), 2 Ir. Eq. E. 36), as where it was commenced after: Carroll v. Darcy (1847), 10 Ir. Eq. E. 321. And in Berniinghani V. Biirhc (1845), 2 Jo. & Lat. 699, at p. 714, Lord St. Leonards — then Sugden, L.C. — was strongly of opinion that a creditor, not barred at the commencement of the suit, could claim in the suit, provided he came in according to the decree and course of the Court. "Perhaps, therefore," he said (Eeal Prop. Stat., p. 126), " we may be justified in considering Stcrndale v. Ilankinson as still law in both countries, although the rule is to be cautiously applied since the new Act. The suit must in effect ]je the suit of the creditor, one under which he would have a clear right to prosecute his demand, and of which he was full}' aware, and his demand must be such as would not have been 314 STOPPING THE STATUTE. [CHAP VII. SUrnJale v. Hankinson overruled in England. Administra- tion judgment stops statute. barred if he had himself filed the bill actually before the Court ; and, irrespective of the statute, he would be bound, in order to avail himself of the suit, to conform to the general orders of the Court, and not to be guilty of gross laches." But this assumed that the action was one which the creditor could himself have brought. A mortgagee's suit for foreclosure or sale did not l)revent the statute running against a judgment creditor of the mortgagor, since such creditor could not have instituted the suit : Bennett v. Bernard (1849), 12 Ir. Eq. E. 229. For England, however, the rule in Sterndale v. Hankinsoit was abolished by T^c Greaves (1881), 18 C. D. 551, where Jessel, M.R., pointed out that the reasons upon which the rule was- based had ceased to exist. The Act of 1833 had already imposed an express limitation in equity on judgment debts, and the efifect of the Judicature Acts, he held, was to make the statute of James binding upon each division of the High Court as- regards simple contract debts. Hence the Chancery Division was- bound to apply the six years' limitation to such debts. More- over, as regards actions for administration of personal estate, the action was not expressed to be on behalf of all creditors, nor under the present practice were there any considerations of expense which required that it should be treated as the action of all the creditors. In actions for the administration of real estate, it is still necessary for the plaintiff to sue on behalf of himself and all other creditors : Be Tottenham, [1896] 1 Ch. 628 ; and hence to- such actions the whole of this reasoning does not apply. But this is not sufficient ground for excluding them from the decision in Be Greaves ; and the present rule is, that the com- mencement of an administration action, whether for adminis- tration of personal estate or of real and personal estate, saves- the statute only as regards the actual plaintiff: ef. Thompson v. Hurley, [1905] 1 L R. 588. As soon, however, as a judgment is pronounced to the benefit of which the creditors generally are entitled, the statute ceases to- run against those whose debts are not then barred. Every one who has a subsisting claim at the time of the administration judg- ment is entitled to participate in the assets : Be General Boiling Stock Co. (1872), 7 Ch. p. 050 {infra, p. 319). In .SY. John v. Boughton{19,m), 9 Sim. 219, Shadwell, V.C, appears to have con- sidered that the statute would run against each creditor until he CHAP. VII. 1 COMMEXCEIIEXT OF ACTION. *)15 made his claim. But in lie fireares {supra), Jessel, M.E., intimated that the judgment would prevent the further running of the statute as against creditors who came in under it ; and, in addition to the dictum from Re General Rolling Stock Co. just referred to, this was expressly laid down by Bacon, V.C, in Finch V. Finch (1876), 45 L. J. Ch. 816, where a decree for administration had been made in a legatee's action. " That decree," he said, " directs an inquiry as to what the debts of the testator were, and the subsequent part of the decree ordered them to be paid. That decree, then, operates as a judgment in favour of such creditors as could substantiate their claims to the extent of preventing the time limited by the statute from run- ning against the recovery of such debts " : see Re Crosley (1887), 35 C. D. 266, p. 270 ; Re Fhhs' Fstate (1893), 31 L. R Ir. 95. And where there has been a judgment for administration, it stops the statute, notwithstanding that a creditor, who has proved under the judgment, has to take an independent step, such as a petition for a sale, in order to obtain payment of his debt : Re Fhhs' Estate {supra). It is assumed that the creditor duly comes in under the judgment ; otherwise he cannot rely upon it as stopping the statute in his favour: Berrinr/ton v. Fvans (1835), 1 Y. & C. Ex. 434 ; Tatani v. WilUams (1844), 3 Hare, 347. Moreover, the administration judgment operates from its date, not merely in favour of creditors, but in favour also of the estate — that is, of the personal representatives, and of other creditors if the estate is insolvent — as regards a claim of set-off against a creditor's demand, and it stops the running of the statute against this claim : Re Ballard, W. N. (1890), p. 64. The judgment does not preserve a specific lien on the estate, such as a vendor's lien, though the person entitled to the lien could ordinaril}' prove as a personal creditor : Toft v. Stejihenson (1848), 7 Hare, 1. But if a judgment is not such that creditors generally can "Where take advantage of it, the statute is not saved as to them, and it Ju^?™ent 13 , . . not 111 favour continues to run against each creditor until he commences some of creditors proceeding to enforce his claim: JJ'atson v. BircJi (1847), 15 "^'^^''^^^J'- Sim. 523. If such a claim is duly made in the action it stops the statute, although it may be necessary to take some further proceeding to enforce it : Green iraij v. Bromjield (1851), 9 Hare, 201; see Conrprve v. Power (1828), 1 Moll. 121. Similarly, where in a mortgagee's suit there is, after the mortgagee has 316 STOPriNG THE STATUTE. [CHAT. YII. Where creditor is party to action. Heir claimiiu adversely. Arrears of interest. Claims arising in course of suit. been paid, a surplus available for other claimants, the statute runs against such claimants until they make their claims, or until a judgment is given to the benefit of which they are entitled: Archdall v. Anderson (1890), 25 L. 11. Jr. 433; cf. Bennett v. Bernard (1849), 12 Ir. Eq. E. 229. And the statute continues to run against a creditor notwith- standing that he is a defendant to the suit {Watson v. Birch (supra)), though the contrary is suggested by Hiunble v. Humble (1857), 24 Beav. 535, at p. 540. Hence a defendant who has a claim against the estate which is the subject of the suit should take steps to enforce it either by counterclaim in the suit, or b}' issue of a writ, if there is any chance of the statutory period expiring before an order is made to the benefit of which he would be entitled. The commencement of a suit for the administration of the estate of a testator does not save the statute from running against the heir who claims adversely to the trusts of the will ; but if, in the events that happen, part of the estate is undis- posed of, and is held by the trustees in trust for him, as to this he is not barred : Si))nnons v. lludall (1850), 1 Sim. N. S. 115. It has been held in Ireland that when a claim made in a suit carries interest, the arrears are to be allowed for six years prior to the commencement of the suit ; whether the statute is checked as regards the particular claim by a general adminis- tration order (jRe Ebbs' Estate (1893), 31 L. R. Ir. 95), or, where there is no such order, by the bringing in of the claim : Arch- dall v. Anderson (1890), 25 L. R. Ir. 433. But this practice is founded on Sterndale v. Hankinson (1827), 1 Sim. 393, which is not now an authority in England (su2)ra), and in this country, if an order for general administration has been made, the six years should be reckoned prior to the order, since this stops the running of the statute ; while, if there is no such order, the six years are reckoned prior to the making of the claim : Hunter v. Nockolds (1850), 1 Mac. & G. 640; Greenwai/Y. B row field {1S51\ 9 Hare, 201; cf. Henri/ v. Smith (1842), 2 Dr. & War. 381; Montgomerif v. Soutliurll (1843), 2 Con. & Law. 263. In ChappeJ V. Rees (1852), 1 D. M. & G. 393, interest was reckoned prior to the commencement of the suit ; but this cannot now be regarded as an authority. The pendency of a suit prevents the statute running against claims arising in the course of the suit. Thus where in the CHAP. VII.] COMMENCEMENT OF ACTION. 317 course of an administration suit debts of the testator are paid out of the income of a beneficiary, under such circumstances that the beneficiary is entitled to be recouped out of corjnis, the pendency of the suit prevents the statute from running against the claim to recoupment : AhojJ v. Bell (1857), '24 Beav. 451. "Where there is no suit pending, but a creditor sends in a < laim not ia claim in answer to the executors' advertisement, this does not stop the statute : lie Stepheus (1889), 43 C. D. 39. suit. (3) Order for Sale. An order for sale of land in Ireland, made in the Landed ^^ile in Estates Court, is considered to be made on behalf of every estates court. person interested in the proceeds of sale, and it stops the running of the statute as regards incumbrancers who are not then barred : lie ColcloufiJi (1858), 8 Ir. Ch. E. 330. It seems to have been assumed in that case, in accordance with Sterndale v. Hankinson (1827), 1 Sim. 393, that the presentation of the petition for sale stopped the statute as regards all persons interested. But in Ee Nixon's Estate (1874), Ir. E. 9 Eq. 7, the Court of Appeal, who were not satisfied with Re Colclough, declined to allow that the statute was stopped till the order for sale. •' The rationale of the decision in Re Colclough,'' said Chris- tian, L..J., " is that it rests on the order for sale, and not on the lodging of the petition, and it is in that sense that I now submit to and follow it." And he intimated that it would be more in accordance with the combined operation of the Statute of Limita- tions and the Irish Land Acts to hold that the incumbrance was simply transferred from the land to the money, so that the running of the statute would not be interfered with. In order, however, not to unsettle the law, he followed Pie Colcloiujh to the extent indicated : cf. Irish Land Commission v. Davies (1891),. 27 L. E. Ir. 334 ; see Re Conlans Estate (1892), 29 L. E. Ir. 199. Similarly, a vesting order made by the Land Commission under the Purchase of Land (Ireland) Acts, 1885 to 189G, stops- the statute as from its date in favour of incumbrancers on the land: Re Smithivick's Estate, [1896] 2 L E. 401. It follows that where an annuity is charged on the land sold, the arrears of the annuity are recoverable for a period going back to six years before the order for sale, and so, too, as to arrears of interest: cf. Re Smithiviclc's Estate (siqjra) ; Re 118 STOPPIXG THE STATUTE. [CHAP. VII. Effect of presentation of i^etition. Tithe reut- charge. Sale under Land Pur- chase Acts. Stranger in possussiou. Action stopped hy gale. Bclton's Estate, [1894] 1 I. E. 537. And the effect of the order of sale is not limited to incumbrances existing at the date of the order. Notwithstanding an order for sale made on an incumbrancer's petition, the owner can still create a valid incumbrance on the land, which will be protected by the order against the operation of the statute : lie Swanton's Estate, [1898] 1 I. E. 157 ; lie Morrisons Estate, [1907] 1 I. E. 15, C. A. As regards the incumbrancer who presents the petition, the statute is stopped from the date of presentation. The filing of the petition is a proceeding to recover money charged on land, and saves the statute until the petition is dismissed : Irish Land Commission v.Davics (1891), 27 L. E. Ir. 334; lieStinson's Estate (1892), 29 L. E. Ir. 490. If, however, the petition is dismissed, the statute is to be taiien as having been running without check : Irisli Land Coniniission v. Davies. A tithe rent-charge owner is not interested in the proceeds of sale wdthin the meaning of lie Colclough and He Xi-von (supra), since tithe rent-charge is by sect. 62 of the Landed Estates Court Act, 1858 (21 & 22 Yict. c. 72), expressly exempted from being affected by the conveyance by the Court. Hence the order for sale does not stop the running of the statute against a tithe rent-charge owner: lie Wade's Estate (1884), 13 L. E. Ir. 515, C. A. And the rule in lie Colelouglt does not apply where land is sold by an owner to tenants under the Purchase of Land (Ireland) Acts, 1885 to 1896, if the sale is carried out by convey- ance, though possibly it might apply where the sale is carried out by vesting order : Be Bateson, [1896] 2 I. E. 171, C. A. A stranger who is in possession of the land at the time of the proceedings, and in whose favour the statute is running, is not affected by the order of sale. The petition is not an action for the recovery of land, and the statute continues to run : Be Taafe's Estate (1878), 1 L. E. Ir. 387. Where an action already commenced was stopped by a sale by the Landed Estates Court, the statute was checked as from the commencement of the action : Be Laicder (1857), 6 Ir. Ch. E. 587. (4) Banhruptey and Winding-up. Bankruptcy. The debts provable in bankruptcy include all those to which the debtor is liable at the date of the receiving order : Bank- ruptcy Act, 1883 (46 & 47 Yict. c. 52), s. 37 (3). Consequently the CHAP. VII.l COMMENCEMENT OF ACTION. 319 statute ceases to run against creditors as from the date of such order : see Ex imrte Ross (1827), 2 Glyn & J. 330 ; Re General /fl u^iUx^^-^^ RolUm/ Stock Co. (1872), 7 Ch. p. 050 ; and when a claim has "Z^^- XXX - been proved, it is not destroyed by delay in applying for ^ ^ff dividends : Ex iiarte Hcalcy (1832), 1 Deac. & Ch. 301. But the pending of a liquidation by arrangement does not prevent the statute running in favour of a debtor to the estate. It runs, therefore, in favour of a third party who has received rents which the trustee in the liquidation could claim : Re Mtuisd (1892), 00 L. T. 245, C. A. A winding-up order stops the running of the statute against Wiuding-up. creditors of the company, so that all creditors can prove whose claims were not barred at the date when the order was made. Upon the making of the order it becomes the duty of the Court under the Companies Act, 1802 (25 & 20 Yict. c. 89), s. 98, to cause the assets of the company to be collected, and applied in discharge of its liabilities — that is, the liabilities which exist at the time of the winding-up order. "I think," said Mellish, LJ., in Re General Rollinn Stock Co. (1872), 7 Ch. p. 049, referring to this section, " we must consider that the legislature intended us to follow the analogy of other cases where the assets of a debtor are to be divided amongst his creditors, whether in bankruptcy or insolvency, or under a trust for creditors, or under a decree of the Court of Chancery in an administration suit. In these cases the rule is that anybody who had a subsisting claim at the time of the adjudication, the insolvency, the creation of the trust for creditors, or the administration decree, is entitled to participate in the assets, and that the Statute of Limitations does not run against this claim ; but, as long as assets remain unadministered, he is at liberty to come in and prove his claim, not disturbing any former dividend." It had been held on the earlier Companies Acts that a winding-up order did not suspend the operation of the statute : Re Royal Rank of Australia, Ex ^jarte Forest (1800), 2 Giif. 42 ; though it was suspended by the carrying in of a claim by the creditor : Re Great Western, etc., Ry. Co., Ex parte Wryyhte (1852), 5 De G. & Sm. 244; Re Warwick and Worcester Ry. Co. (1858), 27 L. J. Ch. 735 ; see Re London and Rirminyhani, etc., Ry. Co., Ex imrte Hiyyins (1850), 2 Jur. N. S. 178. 320 . STOPPING THE STATUTE. [CHAP. VII. Money in Court. Possession of receiver. (i.) Statute saved as regards parties to suit. (5) Proiwytij under the Control of the Court. AVhere money is paid into Court by trustees, the Court is not thereby constituted a trustee for all persons having claims on the fund, but only for the immediate cestui que tritsts. Hence an annuity granted by a cestui que trust, and charged on his interest, is liable to be barred notwithstanding that the trust funds have been brought into Court : lie NugenVs Trusts (1885), 19 L. R. Ir. 140. But in general the Court holds funds in usum jus hahentium, and is in effect a trustee for the parties equitably entitled: Hoaiin v. Sheppard (1870), Ir. E. 6 Eq. 38; cf. Be Slackens Estate, [1896] 1 I. R. p. 199, C. A. ; Lancaster v. Eror& (1846), 10 Beav. 154. In Houiin v. Sheppard (supra), where a fund arising from the produce of rents during a life estate remained in Court from 1815 to 1870, the estate of a remainderman, who had paid charges which should have fallen on the life estate, was still entitled to be recouped out of the fund: >/. Alsoj) v. Bell (1857), 24 Beav. 451. And where money is paid into Court in a bankruptcy to meet the admitted claims of creditors who cannot be found, the statute does not run against them ; but if no claim is made within six years it may be paid out to the debtor upon his giving reasonable security to repay it should the creditors appear and claim it : Be Dennis, [1895] 2 Q. B. 630. And where a fund is in Court in an administration suit there is no equity which makes time run against the right of a creditor to come in and prove : Harrison v. Kirk, [1904J A. C. 1 ; provided, of course, that he was not already barred at the date of the judgment for administration. Possession taken by a receiver appointed by the Court is deemed to be the possession of all the parties to the suit according to their titles : Be Butler's Estate (1863), 13 Ir. Ch. E. 453 : cf. 2 Atk. 15, case 14 ; Dixon v. Gai/fere (1853), 17 Beav. 421 ; Be Wade's Estate (1884), 13 L. E. Ir. 515 ; and also of persons who are entitled to the benefit of the suit. " The order appointing the receiver," said Lord Eldon, C, in Gresleij V. Addcrleij (1818), 1 Swanst. p. 579, "is for the benefit of incumbrancers only so far as expressed to be for their benefit, and only so far as they choose to avail themselves of it." This, includes an incumbrancer to whom notice of the order is given,, and who is thereby induced to rely upon it : Penney v. Todd CHAP. VII.] COMMENCEMENT OF ACTION. 321 (1878), 26 W. E. 502. But to avoid the running of the statute against an incumbrancer, the receiver must be in possession of the estate sought to be charged : lie Greene's Estate (1884), 13 L. E. Ir. 461, p. 468, C. A. Where, on the other hand, a receiver is appointed in the (ii.) statute .,,« . .., „ ±^ L J. L • continues to interest oi a person m possession, in whose favour the statute is J.^^^ a-ainat running against a stranger to the suit, the possession remains stranger to unaffected, and the running of the statute is not stopped : Harrison V. Duignan (1842), 2 Dr. & War. 295. Similarly the statute continues to run where the receiver is appointed at the instance of the creditors of the person in possession. The ground of the appointment is the jus j^ossessionis, and it is an affirmance rather than a disturbance of the possession : Groome v. Blake (1858), 8 Ir. C, L. E. 428. And as the appointment of a or ceases to receiver does not prevent the statute continuing to run against f^^y^J ^^^ a person entitled who is a stranger to the suit, so, conversely, when a receiver is appointed and obtains possession, the statute then ceases to run in favour of a former adverse possessor : Wrixon v. Vize (1842), 3 Dr. & War. 104. The possession of the Court by its receiver is the possession of the suitor, and time can- not run against a person in possession. Tenants who treat with the receiver for purchase on the footing of being tenants, and subsequently pay no rent for the statutory period, cannot at the same time decline in one proceeding to pay arrears of rent on the ground that they are purchasers, and in another to complete the purchase on the ground that they have become entitled as owners under the statute : Ee Slackens Estate, [1896] 1 I. E. 191. T.L.A. 322 STOPPING THE STATUTE. [CHAP. VII. Owner out of possessiou. R. P. L. A., 1833, s. 14. Acknowledg- ment of title to laud or rent. ^Mortgagor ia possession. Mortgagee in possessiou. Section II. — Acknowledgment and Part Payment. Statntoru Provisions. When the statute is running its operation can be stopped, and a fresh commencement given to it, by acknowledgment or part payment. 1. Land and Bent. — "Where land is out of the possession of the owner, under such circumstances that the statute is running against him, his title is kept alive by_an acknowledgment in writing signed by the person in possession and given to the owner or his agent ; and similarly where the statute is running against a person entitled to a rent-charge : — " 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 posses- sion 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 possession 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." This section appears to apply to lands of a spiritual or eleemosynary corporation sole, as to which a special limitation is provided by E. P. L. A., 1833, s. 29 ; but not to advowsons : ss. 30-33. 2. Land or llcnt in Mortgaijc. — "Where land is mortgaged, and the mortgagor is in possession, the title of the mortgagee is kept alive by "payment of any part of the principal money or interest secured by the mortgage " : Pi. P. L. A., 1837 (1 Yict. c. 28), supra, p. 85. Where the mortgagee is in possession the title of the mort- gagor is kept alive by an acknowledgment in writing signed by the mortgagee and given to the mortgagor or his agent : — CHAP. VII.J ACKNOWLEDGMENT AND PART PAYMENT. 323 " When a mortgagee shall have obtained the possession or E. P. L. A., receipt of the profits of any land or the receipt of any rent ^' ' ^" '• 1.1., , , ^ 1 ■ • Acknowledg- comprised in his mortgage, the mortgagor, or any person claiming ^^^^^^ j^ through him, shall not bring any action or suit to redeem the mortgagee mortgage but within twelve years next after the time at which ^" posacssiou. the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mort- gagor, or of his right to redemption, shall have been given to the mortgagor or some person claiming 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 acknowledgment, or the last of such acknowledgments, if more than one, was given." The provisions of the section relating to the case of several mortgagors or mortgagees are stated subsequently : infm, p. 337. 3. Money diargcd on Land, etc. — The right to recover money charged on land or on a rent-charge, or secured by judgment, and legacies and shares of intestates' estates, is kept alive by part payment of principal or payment of interest, or by acknowledg- ment in writing, signed by the person liable to pay, or his agent, and given to the person entitled or his agent : — "No action or suit or other proceeding shall be brought to R. i». L. A., recover any sum of money secured by any mortgage, judgment, 1S74, s. 8. or lien, or otherwise charged upon or payable out of any land or Part-payment rent, at law or in equity, or any legacy, but within twelve years ledcr^ent of next after a present right to receive the same shall have accrued money charged 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 i^erson by whom the same shall be jjayable, or his agent, to the person entitled thereto, or his agent ; and in such case no such action or suit or jjroceeding shall be brought l;ut within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." Similar provision with regard to shares of intestates' estates is made by sect. 13 of the Law of Property Amendment Act, 18G0 (supra, p. 1G9). 4. Arrears of Rent and Interest. — The right to recover arrears of rent, or of interest in respect of money charged on land or on a rent-charge, or of interest in respect of legacies, is kept alive by 324 STOPPING THE STATUTE. [CHAP. YII. Pv. P. L. A., 1833, s. 42. Acknowled};- ujcnt of arrears of rent and interest. Civil Pro- cedure Act, 1833, s. 5. Acknowledg- ment nf specialty debts by writing or part payment. acknowledgment in writing, signed by the person liable to pay, or his agent, and given to the person entitled, or his agent : — " No arrears of rent or of iuterest 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 respecti\ely 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." 5, Specialtij Debts. — The right to recover specialty debts is kept alive by acknowledgment in writing, signed by the person liable to pay or his agent, or by part payment on account of principal or interest ; and if at the time of the acknowledgment or part payment the creditor is under disability, or the debtor is beyond seas, the running of the statute is postponed till the disability has ceased, or the debtor has returned : — " If any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty or recognizance, 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 satisfaction 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 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 . . . " The corresponding Irish enactment is the Irish C. L. P. Amendment Act, 1853 (16 & 17 Vict. c. 113), s. 23. These provisions apply only to cases of money secured by specialty. A \)Oiid given to secure the replacement of stock is not kept alive by acknowledgment : Blair v. Oiiiiond (1851), 17 Q. B. 423, p. 436. 6. Simjjle Contract Debts. — In the case of simple contract debts, acknowledgment and part payment have no direct statutory effect, CHAP. VII.] ACKNOWLEDGMENT AND PART PAYMENT. 325 but they may operate as a fresh promise to pay the debt, and then a new cause of action accrues upon the fresh promise. The acknowledgment, however, must be in writing, signed by the party chargeable or his duly authorized agent : — " In actions of debt or upon the case grounded upon any Statute of simple contract, no acknowledgment or promise by words only A.mendraent shall be deemed sufficient evidence of a new or continuing con- Act, 1828, tract, whereby to take any case out of the operation of [the ^' ' Limitation Act, 1623], or to deprive any party of the benefit thereof, mgjjt ^f " unless such acknowledgment or promise shall be made or contained simple by or in some writing to be signed by the party chargeable f^T^'^ ^ thereby . . . Provided always, that nothing herein contained shall writing, alter or take away or lessen the effect of any payment of any principal or interest made by any person whatsoever." The corresponding Irish enactment is the Irish C. L. P. Ackuowledg- Amendment Act, 1853, s. 24. With reference to these two ^^nV*"^ enactments provision for acknowledgment by an agent is made as follows : — "An acknowledgment or promise made or contained by or in Mercantile a writing signed by an agent of the party chargeable thereby, ment Ac^^ duly authorized to make such acknowledgment or promise, shall 185C, s. 13. have the same effect as if such writing had been signed by such party himself." The provisions as to acknowledgment in the case of co-con- tractors, and as to part-payment by one co-debtor, are stated subsequently : infra, pp. 353, 373. Pleadiufi Aclcnowlcdgmcni and Part Payment. Where a plaintiff against whom the statute is set up proposes Pleading in to defeat the statute by an acknowledgment or part payment, ho ^^^ ^' must set this out in his reply and state the mode in which the acknowledgment or part payment was made : Forsi/tlt v. P>rist()ice (1853), 8 Ex. 317 ; Civil rrocedure Act, 1833, s. 5 ; though where the acknowledgment is in writing it is not necessary to set out the actual words : Kempe v. Gibbon (1818), 12 Q. B. GG2. Formerly it appears to have been the practice in Ireland for the defendant, in pleading the statute, specifically to deny acknowledgment : Molony v. O'Brien (1812), 5 Ir. L. E. 577. But since an acknowledgment of a simple contract debt Simple con- operates only as a fresh promise to pay the debt, and excludes the statute because the cause of action is assumed to lie in the 32G STOPPING THE STATUTE. rCHAP. YII. Aeknowledo- luent by or to executors. Present system. new promise, it was formerly not correct to allege the acknow- ledgment in reply; nor, if it was given between the original parties, was it necessary to set it out in the declaration — that is, the statement of claim. The plaintiff simply joined issue on the plea of the statute, and he was allowed to give the acknowledg- ment in evidence as supporting the declaration. For the purpose of the statute the new promise was treated as incor- porated in the declaration : see Tanner \. Smart (1827), G B. & C. p. GOT ; Short v. McCarthy (1820), 3 B. & A. p. G31 ; Upton v. Else (1827), 12 Moore, 303. And similarly, since part payment was only evidence of a fresh promise, it was neither proper to allege it in the declaration {Tlollis v. Palmer (183G), 2 Bing. N. C. p. 717), nor to plead it in reply : liidd v. Moggridge (1857), 2 H. & N. 5G7. Where, however, the acknowledgment or payment took place between parties other than the original parties to the contract, it did not support the promise as laid in the declaration and required to be specially alleged : Leehmere v. Fletcher (1833), 1 Cr. & M. 623. Thus where the fresh promise was to an executor it had to be stated in the declaration, and could not be given in evidence in answer to a plea of the statute : Short v. McCarthy (supra) ; Timmis v. Piatt (1837), 2 M. & W. 720 ; Broiniing v. Paris (1839), 5 M. & W. p. 120 ; cf. Williams v. Gun (1711), Fortescue, p. 180 ; and, similarly, where one of the parties to the contract was an unmarried woman, and before the acknowledg- ment the parties liable had been varied by her marriage : Pittam v. Foster (1823), 1 B. & C. 248 ; ef. Bechy. Pierce (1889), 23 Q. B. D. 316. Under the present system of pleading it is still necessary to allege in the statement of claim an acknowledgment or payment made to or by an executor or other person who was not an original party to the contract, since this is required in order to support the action ; and, even when the acknowledgment or pay- ment is between the original parties, it is a material fact which should now appear upon the pleadings, either in the statement of claim or in the reply. If it is known that the plaintiff will require to rely upon it, it should be alleged in the claim ; and at the same time there should be added an allegation that the defendant by such acknowledgment or payment promised to pay the debt or the balance, this being an inference which the Court will not draw : Pddd v. Moggridge (1857), 2 H. & N. 5G7. CHAP. VII.l ACKNOWLEDGMENT. 327 I. ACKNOWLEDG]\rENT. The effect of the foregoing provisions as to acknowledgment Sximmaiy. may be tabulated as follows : — Subject-matter. Land or rent-charge Land or rent-charge in possession of mortgagee Money cliarged on land Judgment Legacy Intestates' estates Arrears of rent or interest Specialty debts Simple contract dehts Statute. R.P.L.A.,1833, s. 14 E.P.L.A., 1874, s. 7 R.P.L.A.,1874, s. 8 Law of Property Am. Act, 18G0, s. 13 R.P.L.A., 1833, s. 42 Civ. Proc. Act, 1833, s. 5 Stat, of Frauds Am. Act, 1828, s. 1 Merc. Law Am, Act,185G, s. 13 Form. Li writing In writing In writing In writing In writing In writing In writing By whom given. Person in possession The mort- gagee Person by whom pay- able or agent Person ac- countable or agent Person by whom pay- able or agent The party liable, or agent The party chargealtle or agent To whom given. Owner or agent IMortgagor or agent Person en- titled or assent Person en- titled or agent Person en- titled or agent [Nof stilted] [Not stated] In considering the operation of acknowledgment, it will bo necessary to distinguish between (1) Land and money charged on land, etc., and specialty del)ts, as to which the effect of tlie acknowledgment depends on the statutes ; and ('2) Simple contract debts, as to which it depends on the doetrine of an implied fresh promise to pay. 328 STOPPING THE STATUTE. [CHAP. YII. Land or rent. (1) Land and Money charged on Land, etc., and Specialty Debts. (i.) By irliom the Acknowledgment must he made. In accordance with sect. 14 of the E. P. L. A., 1833, an acknowledgment of title to land or rent must be made by the person actually in possession of the land or in receipt of the rent. Acknowledgment by an agent will not suffice : Ley v. Peter (1858), 3 H. & N. 101 ; cf. Hyde v. Johnson (1836), 2 Bing. N. C. 77C. Money An acknowledgment of a sum of money charged on land, or charged on ^f arrears of interest, maybe given " by the person by whom land, and ' , i i , , • , • arrears of rent the Same shall be payable or his agent. Jiy "payable it is and interest. ^^^ ^^ ^^ understood that the person making the acknowledg- ment must be personally liable to pay. It is sufficient that he is interested in the land, and is liable to lose the land if he does not pay. " The person designated in the fortieth section as the person by whom the money is payable must evidently mean, in the case of a claim by way of equitable lien, the person entitled to the land on which the charge is sought to be fixed. The money is payable by him in the only sense in which it is payable by any one. Unless he pays it, he will lose his land ; and it is obviously in that sense that the statute in such a case speaks of the money as payable " : per Lord Cranworth, L.J., in Toft v. Stcplicnson (1851), 1 D. M. & G. 28, where a vendor's lien was in question. " These words," said Lord Westbury, in Bolding v. Lane (1863), 1 D. J. & S. p. 133, " do not denote merely the persons who are legally bound by contract to pay the interest, but all the persons against whom the payment of such arrears may be enforced by any action or suit, and by whom, therefore, as they have a right to pay such interest in redemption of their land, interest may be properly said to be payable": cf. Lord St. John v. Boughton (1838), 9 Sim. 219. On the other hand, the acknowledgment cannot be effectually given by a person who was interested in the land, but who has parted with his interest : Lycdl v. Fluker, W. N. (1873), p.' 208. Specialty -^^ acknowledgment of a specialty debt must be made by the debts. party liable by virtue of the specialty or his agent. The expres- sion " the party liable " includes any person or persons against whom an action on the specialty could be brought, whether CHAP. Yn.] ACKNOWLEDGMENT. 329 liable originally, or as representing or taking the estate, real or personal, of the obligor : Boddam v. Morleu (1857), 1 De G. & J. pp. 7^ 8. ^^/^^^^ /^-^-^ y^cff, /A^. ^/y. Where an acknowledgment can be made by an agent — that Acknowiedg- is, in all cases except title to land or rent — it is not necessary ™^°n\^^ that the agency shall be expressly created. A ccMiii que trust may be regarded for this purpose as the agent of the trustee : cf. Vincent v. WilUmitou (1842), Long. & T. 456. In Toft v. Stephenson (1851), 1 D. M. & G. 28, an acknowledgment by the solicitor of the persons by whom the money was payable was sufficient. But a Master in Chancery, in making a report, was held not to be the agent of the parties. He makes the report in his official capacity and not as representing them : Hill v. Stawell (1840), 2 Ir. L. E. 302; see Barrett v. Birminnham (1842), 4 Ir. Eq. R. p. 546. (ii.) To n-]tom the Aeknoirledfimmt may he made. An acknowledgment, whether with reference to land, or to Land, money sums of money charged on land, or to arrears of rent or interest, ^^''^-rged on must be given to the person entitled or his agent. Hence an arrears of acknowledgment to a third party is not effectual : Batchelor v. Middleton (1847), 6 Hare, p. 83 ; nor is an acknowledgment to a person before his title accrues (Holland v. Clarke (1842), 1 Y. & C. C. C. 151), or after it has ceased : Marhwick v. Ilardingham (1880), 15 C. D. p. 352, C. A. But in considering whether an acknowledgment is really made to the person entitled the Courts have adopted a liberal construction of the statute. " The question is," said Lord St. Leonards, in Blair v. Nuficnt (184G), 3 Jo. & Lat. p. 677, " whether it is an acknowledgment to the person entitled thereto or his agent. The cases show that the Court has not, in that respect, restricted itself within narrow limits. If it be made in a schedule, affidavit, or answer, it is sufficient, although it may be said that in those cases it is made to the Court and not to the party. The decisions are, I think, right ; they proceed upon a liberal, but yet a fair and just con- struction of the statute " : Barrett v. Birmingham (1842), 4 Ir. Eq. Pi. 537. But a statutory declaration as to a mortgage debt made by the mortgagor upon an inquiry in the lunacy of the mortgagee has been held not to be an acknowledgment made to the mortgagee or his agent : Jfcrvri/ v. If'/yy/// (1905), 22 T. L. R. interest. 330 STOPPING THE STATUTE. [CHAP. VII. Katificiition of agenoy. Specialty debts. 98 ; and the committee of a building society are not the agents of a mortgagor member to receive an acknowledgment : ]]^Uson V. Walton, etc., Building Society (1903), 19 T. L. E. 408. But where land is ordered to be sold in an administration action to which the owners are parties, the solicitor having the carriage of the order is their agent to receive an acknowledgment : Johnston V. Smith, [189G] 2 I. R. 82. Where reliance is placed on an acknowledgment to an agent, it is sufficient that the acknowledgment is made to a person who is acting as an agent, and that his agency is subsequently ratified. In Trulock v. Boheij (1841), 12 Sim. 402, an acknow- ledgment was contained in a letter written by a mortgagee in possession to the grandfather of the infant heiress-at-law of the mortgagor. "It would," said Shadwell, V.C., "be a forced construction to say that this was not an acknowledgment wdthin the statute, or that it was not given to the agent of the person claiming the estate of the mortgagor. It is not necessary to make a person an agent, that he should have an actual authority to act. It is quite sufficient that the grandfather acted as the agent of his grandchild ; and that she, when she came of age, adopted what he had done on her behalf." As to specialty debts, it is not required by sect. 5 of the Civil Procedure Act, 1833, that the acknowledgment shall be made to the person entitled or his agent, and an acknowledgment given to a third party is sufficient : Moodie v. Bannister (1859), 4 Drew. 432 ; see Tlon-cutt v. Bonser (1849), 3 Ex. 491. The suggestion to the contrary in Greiifell v. Girdlestone (1837), 2 Y. & C. Ex. p. G76, is founded on a mistake as to the scope of the Statute of Frauds Amendment Act, 1828, s. 1. But where such debts are also secured on land, the personal remedy is barred with the remedy against the land (supra, p. 157), and hence the acknow- ledgment must be given under sect. 8 of the Pi. P. L. A., 1874, to the person entitled or his agent. Writing uecessai'A'. (iii.) Form of AchnoU'lednment. The acknowledgment must be in ^Yriting, but otherwise its form is only limited by the requirements, that it must be signed by the person making it, and must, except in the case of specialty debts, be made to the person whose title is acknow- ledged. Frequently it is contained in a letter or series of letters : CHAP. VII.] ACKNOWLEDGMENT. 331 Fursfhm v. Clogg (1842), 10 M. & W. 572; IncnrporaUd Society V. nichards (1841), 1 Dr. & War. 258; Jortin v. South-Eastern Ihl. Co. (1854), G D. M. & G. 270. A covenant in a mortgage deed may be an acknowledgment by the mortgagor of the mortgagee's title at the time of execution : Jaync. v. Hucihea (18d4), 10 Ex. 430. But a transfer of a mortgage, to which the mortgagor is not a partj% cannot operate as an admission of his title : Luvas V. Dcnnhon (184B), 18 Sun. 584 ; Batchelor v. Middlcfou (1847), 6 Hare, 75. Nor can the keeping of accounts l)y the mortgagee : Baker v. JVclton (1845), 14 Sim. 42G. Under the old practice an answer in Chancery, since it was statements in in writing signed by the defendant, and was given in answer to pJoceodings. questions put by the plaintiff, was a sufficient acknowledgment : Goode V. Job (1858), 1 E. & E. G ; Blair v. Nugent (1846), 3 Jo. & Lat. p. 677. The fact that the answer was made under compulsion and upon oath did not detract from its efficacy as an acknowledgment, but rather the reverse : see j^er Erie, J., in Goode V. Job. And so with an affidavit: Tristraui v. ILtrte (1841), Long. & T. 186 ; or a petition for sale of land in Ireland, describing the land in a schedule as subject to an incumbrance : /.V West (1879), 3 L. E. Ir. 77 ; or the statement subscribed and filed by a bankrupt in bankruptcy proceedings : Barrett v. Birmingham (1842), 4 Ir. Eq. E. 537; Murrogh v. Poirers (1842), 5 Ir. L. E. 494 ; see Dugdede v. Vize (1843), 5 Ir. L. E. 568 ; llanan v. Power (1845), 8 Ir. L. E. 505. In bankruptcy the file of tlie proceedings is intended for the inspection of creditors, and hence an admission in the proceedings is in a sense made to the creditor concerned. But an acknowledgment by the bankrupt is not effectual as against his trustee, since the bankrupt cannot by his own act, subsequent to the bankruptcy, alter the rights of his creditors. It can only be taken advantage of in proceedings independent of the bankruptcy : Bolt v. Clegg (1847), 16 M. & W. 821 ; Be Clendinning (1859), 9 Ir. Ch. E. 284; lie Tollcmache (1884), 13 Q. B. D. 720. And a statement as to a mortgage debt, made by the mortgagor in judicial pro- ceedings relating to the estate of the mortgagee, is not necessarily an acknowledgment. It may he, made for some other purpose than to admit the debt: llerveg v. Wgnn (1905), 22 T. L. E. 93. Upon the principle of the above cases a direction in a will AVill. for payment of a judgment creditor has been held to operate as an acknowledgment: MiUingiou v. Tlmuijison (1852), 3 Tr. Cli. 332 STOPPING THE STATUTE. [CPIAP. VII. R 28G. "A will," said Blackburne, L.C., ''which must be published at the testator's death, which must be signed, and must be accessible to the creditor, satisfies every imaginable end that we can attribute to the legislature. As a recognition of the debt it is just as significant as an insolvent's schedule ; and the intention of the debtor that the creditor shall have notice, is just as unequivocal in the one case as in the other." But the will must be precise. A mere vague reference to a possible outstanding debt is insufficient: Scott y. Siinge (1891), 27 L. E. Ir. p. 567, C. A.; ride sujjra, p. 158. Signature. The acknowledgment must be signed by the party giving it, whether as principal, or, if signature by an agent is allowed, as agent. In Re Cletidinniiuj (1859), 9 Ir. Ch. E. 284, it seems to have been thought that a mark affixed by a person who was too ill to write would not be eftectual ; though under such circum- stances another may sign in his presence and at his direction : Corporation of DuhUn v. Jiuh/e (1847), 11 Ir. L. E. 8. And where an agent, unable to write, held the top of the pen while his daughter wrote his name, this was held to be effectual : Helshaw V. Laiujleij (1841), 11 L. J. Ch. 17. A signature of initials is eftectual if there is evidence that they represent the name of the writer: Lord St. John v. Boufihton (1838), 9 Sim. 219; and see cases cited infra, p. 343. Parol Although the acknowledgment itself must be in writing, it evidence. j^j^y j^g supplemented by parol evidence, as, in the case of an acknowledgment of a debt, by evidence of the amount of the debt. " The Act allows of considerable latitude as to the form of the acknowledgment ; and consequently it is not necessary that the acknowledgment should state the amount of the sum alleged to be due. If it refers to the thing in question it is sufficient " : Lord St. John v. Boughton (1838), 9 Sim. p. 225, per Shadwell, V.C, referring to E.'p. L. A., 1833, s. 40. And although the document is dated, evidence may be given to show that it was in fact executed subsequently, and it will then take eftect as an acknowledgment from the date of actual execution : Jaijne v. Hughes (1854), 10 Ex. 430. (iv.) Construction of Acknoivledgment. Construction The question of the sufficiency of the acknowledgment is for judge, depends on the construction of a written instrument, and is therefore for the judge : infra, p. 345 ; though in Incorporated CHAP. VII.] ACKNOWLEDGMENT. 333 Socictu V. Richai-ds (1841), 1 Dr. Sc War. p. 290, Lord St. Leonards thought that the construction of a series of letters should be left to the jmy. It has been argued that, to satisfy the statute, the writing '^''^^e to laml. relied on as an acknowledgment should contain an express admission of title (Goode v. Job (1858), 1 E. &. E. 6 ; Jaij)ie v. Hughes (1854), 10 Ex. 430) ; but the authorities do not counten- ance this doctrine, and any writing is sufficient which, either expressly or by implication, contains an admission of title. A mere admission of a title once existing is not necessarily an admission that it exists at the date of the acknowledgment : Ilohsoii V. Burns (1849), 13 L. E. Ir. 286. Hence, though a covenant in a mortgage deed is an admission of the relation in which the parties stand at the date of execution (Jayne v. Hur/lics (1854), 10 Ex. 430), so as to constitute an acknowledgment by the mortgagor of the mortgagee's title, it is otherwise with a mere recital of an earlier mortgage : llowcutt v. Bonser (1849), 3 Ex. 491. The following are cases in which acknowledgments of title to Cases of land have been effectively made :— meuT^'*^°" "Where an occupier of land, in reply to a demand for rent, claimed compensation for the expense of litigation in which he had been involved with respect to the land: Fursdon v. Clogrj (1842), 10 M. & W. 572. Where an occupier made a proposal for a lease to the person claiming as owner : Corporation of Dublin v. Judge (1847), 11 Ir. L. Pi. 8. Where an order for sale had been made in an administration action, and the tenant of the land to be sold sent in to the solicitor of the party having the carriage of the order a written proposal for purchase : Johnston v. Smith, [1896] 2 L R. 82. Where in 1839 the occupier admitted that in 1811 he had entered into an agreement for a lease with the claimant's predecessor in title, and had ever since occupied the land. This was an admission of a continuing tenancy, and con- scf^uently an acknowledgment of the claimant's title at the later date : Goodc v. Job (1858), 1 E. & E. 6. An incumbrancer on land purchased the interest of the tenant for life, and remained in possession after her death, which took place in 1811. In 1820 and 1H21 334 STOPPING THE STATUTE. LCHAP. VII. correspondence took place between him and the Incor- porated Society, who were entitled in remainder, in which, while he did not admit that the title of the Society was free from doubt, he professed to be ready to account, and stated that he had no further claim than for the sum which such account might show to be due. Upon the whole correspondence there was an acknowledgment of the Society's title : IncovporaUd Societi/ v. Uiduinh (1841), 1 Dr. & War. 258. Where a mortgagee in possession expressed his willingness to settle : Tndock v. llohey (1841), 12 Sim. 402. Where a mortgagee in possession, in answer to the request of the mortgagor's solicitor for a meeting, wrote : — " I do not see the use of a meeting either here or at Manchester, unless some party is ready with the money to pay me off." In answer to the objection that this did not acknowledge the title of any particular person as mortgagor, the Court of Appeal held that it was an acknowledgment of the title of the persons for whom the solicitor was acting : Stansjield V. Hohsoii (1853), IG Beav. 286 ; on appeal, 3 D. M. & G. 620. There was no acknowledgment in the following cases : — Where the person in possession, upon application being made by the claimant for payment of rent, with an offer of a lease, wrote : — " Although, if matters were contested, I am of opinion that I should establish a legal right to the premises, yet, under all the circumstances, I have at length determined to accede to the proposal you made of paying a moderate rent on an agreement for a term of twenty-one years : Doe v. Edmonds (1840), 6 M. & W. 295. Where a mortgagee in possession wrote denying the claimant's title, but adding that an account would in any case be useless, because the rents and profits had never been sufficient to keep down interest. If such a letter, observed Piomilly, M.Pi., was to be treated as an acknowledgment of the claimant's right to redeem, no one could safely answer a solicitor's letter, except to say that he refused to give any reply : Thompson v. Bowyer (1863), 11 W. E. 975. ^u'"s As to sums of money charged on land and arrears of interest, laud*; arrears and as to Specialty debts, the acknowledgment need not amount Acknowlcdj: ment uut uiadu. CHAP. VII.J ACKNOWLEDGMENT. 335 to a promise to pay, such as is necessary in the case of a simple of interest ; contract debt. An admission of the liabilit}^ is suiiicient. Thus dcbts.^^^'^^^ in Lord St. John v. Boughton (1838), U Sim. 21*J, a letter contain- ing the words, " Be assured that I shall be happy to discharge the bonds to the late Mr. Aubert as soon as it is in my power," and in Carroll v. Darci/ (1817), 10 Ir. Eq. E. 321, p. 330, an offer to pay a judgment debt out of a particular fund, were held to be acknowledgments ; although in the former case there would have been no complete promise without proof of ability to pay, and in the latter no personal promise at all would have been implied: infra, p. 349. Nor does the acknowledgment create a personal liability if there was no such liability before : Lord St. John v. Bowjliton {supra), (v.) Wlien Achioidedfjmcnt may he made. The effect of an acknowledgment of title to land or rent is '^'^^'^<^ lo i-'ntl. not to secure the title of the owner by rendering the possession non-adverse, but merely to give a fresh starting-point for the statute which thereupon at once commences to run afresh : Scott V. Xixon (1843), 3 Dr. & War. p. 404 ; cf. Burroughs v. M'Crcight (1844), 1 Jo. & Lat. p. 304. But when the statute has run, so that the title of the true owner is extinguished under sect. 34 of the R. 1\ L. A., 1833, no subsequent acknowledg- ment will revive it : Sanders v. Sanders (1881), 19 C. D. 373, C. A. It is the same with regard to an acknowledgment Ijy a mortgagee in possession under sect. 7 of the E. P. L. A., 1874, notwithstanding the contrary decision in Stansjidd v. llohson (1853), 3 D. M. & G. 620, on sect. 28 of the Act of 1833. And similarly, an acknowledgment by the mortgagor will not revive the mortgagee's title after it has been extinguished : Beamish v. Whitney, [1908] 1 Ir. 38. Sect. 8 of the Act of 1874, like sect. 40 of the Act of 1833, i^ioucy suspends the remedy only, leaving the right to a sum of money faui^*^ °° charged on land in existence, and hence in this case the principle just stated does not apply. On the words of the section it is not clear whether the acknowledgment must be made before the statute has run. The action must be brought within twelve years after the "present right to receive" has accrued, unless "in the mean time" an acknowledgment has been given. The words " in the mean time " might refer to the period before the expiration of the twelve years, so that an acknowledgment after 336 COMMENCEMENT OF ACTION. [CHAP. VII. SpcciiiUy debts and arrears of interest. that time would be ineffectual ; and this is so where the plaintiff is a mortgagee, and his title as such is extinguished : Hervey v. Wyrin (1905), 22 T. L. R. 93. The phrase, however, has been referred to the period between the accrual of the right to receive and the commencement of the action, so that the acknowledgment is effectual notwithstanding that the statutory period has elapsed : Ilarty v. Davis (1850), 13 Ir. L. E. 23 ; Re Lord Clifden, [1900] 1 Ch. 774 ; cf. Latouche v. O'Brien (1846), 10 Ir. Eq. R. 113. But an acknowledgment so given by a tenant for life is not effectual against the remaindermen: ixj'ra, p. 337. Under sect. 5 of the Civil Procedure Act, 1833, an acknowledg- ment of a specialty debt can be given at any time, and the statute runs afresh from the date of the acknowledgment, notwithstanding that this is subsequent to the lapse of the statutory period of twenty years ; and, similarly, under sect. 42 of the E. P. L. A., 1833, there is no restriction as to the time within which an acknowledgment of arrears of interest can be given. Title to land. Title to money. (vi.) Tlic Effect of the Achwwlcdyment. In the case of an acknowledgment of title to land, the acknowledgment, if duly given by the person in possession, supports the title of the owner to recover the land, as well against such person, as against any other possessor during the new currency of the statute. But in the case of an acknowledgment of title to money, whether charged on land or secured by specialty, the question frequently arises whether the acknowledgment is effectual to keep alive the claim generally, or only as against the person making the acknowledgment. In general it is effectual only as against the person making it, and persons claiming under him. Thus, in Balding v. Lane (1863), 1 D. J. & S. 122, Lord West- bury, C, held that an acknowledgment by a mortgagor of more than six years' arrears of interest being due on a first mortgage did not preclude a subsequent mortgagee from relying upon the statute. The intention of sect. 42, he said, was "to enact a plain and simple rule, that no person having a charge on lands shall recover more than six years' interest on such charge against any other person having an interest in the lands without an acknowledgment in writing, signed by such person, or by some former owner from whom the interest is derived." And CHAP. VII.] ACKNOWLEDGMENT. 337 where land has been devised to trustees, an acknowledgment by them will not be effectual to keep alive a charge on the land, or to extend the period for which interest can be claimed, unless it is given by all the trustees : Asthunj v. Astburi/, [1898] 2 Ch. 111. If, however, the person making the acknowledgment is a Acknowledg- limited owner in possession of the land, then, since for the time tenant for being he represents the ownership of the land, his acknowledg- lif'^- ment will be binding on the remaindermen, so as to keep alive against them a principal sum or arrears of interest : Smitli v. Smith (1855), 5 Ir. Ch. E. 88 ; Re Fitzmauriccs (1864), 15 Ir. Ch. E. 445 ; though, assuming an acknowledgment to be effectual when the statute has already run (as to which see supra, p. 335), the tenant for life cannot, after that period, revive by acknowledgment a charge or a claim to arrears of interest against the remaindermen : Gregson v. Ilindley (1846), 10 Jur. 383 ; Smith v. Smith {swpra) ; Bccher v. Delacour (1881), 11 L. E. Ir. 187 ; (/. Homan v. Andrews (1850), 1 Ir. Ch. E. p. 117. Several Mortgagors or Mortgagees. The effect of acknowledgment in keeping alive the equity of Several redemption where there are several mortgagors or mortgagees mort^a^ees°^ is regulated by sect. 7 of the E. P. L. A., 1874. Where there are several mortgagors, an acknowledgment given to one by the mortgagee in possession is as effectual as if given to all : — " When there shall be more than one mortgagor, or more than r. p. l. A., one person claiming through the mortgagor or mortgagors, such 1874, s. 7. acknowledgment, if given to any of such mortgagors or persons, ^'2^"^" ° ° •' o o r ' mortgagors, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons." Where there are several mortgagees in possession, an acknowledgment given by one is effectual only as against that one : — " Where there shall be more than one mortgagee, or more than n, p, l_ a.., one person claiming the estate or interest of the mortgagee or 1874, s. 7. mortgagees, such acknowledgment, signed by one or more of such Several 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 'I.L.A. Z 338 STOPPING THE STATUTE. [CHAP. VII. IMortgagees entitled to divided shares of the land. E. P. L. A., 1874, s. 7. Mortgagees entitled to divided shares of land. Eifect of sect. 7. under him or them, and any person or persons entitled to any estate or estates, interest or interests, 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 several mortgagees are entitled to divided shares of the land, but not to ascertained parts of the mortgage money, the acknowledgment confers on the mortgagor a right to redeem the divided share of the mortgagee giving it on paying a corresponding part of the mortgage money : — " Where such of the mortgagees or persons aforesaid as shall have given such acknowledgment shall he 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 mort- gage money, the 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 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." Thus, if there are several mortgagees, A., B., and C, an acknowledgment by A. does not operate to give the mortgagor a right to redeem as against B. and C, whether they are en- titled to a divided or undivided part of the money or land ; and if A. is entitled to a divided part of the land — say, one-third — but not to an ascertained part of the purchase money, the mortgagor will be entitled to redeem A. on payment of one-third of the amount. But these provisions do not apply to the case of trustee-mortgagees, who have advanced money on a joint account, for the accounts to be taken on redemption would require the presence of both trustees, and hence the right is not kept alive at all unless it is kept alive against both by the acknowledgment of both : Ilichardson v. Youiuje (1870), 6 Ch. 478. The clauses only apply where there are divided interests either in the money or in the land. CHAP. YII.] ACKNOWLEDGMENT. 339 (2) Simple Contract Debts. (i.) The Doctrine of Implied Promise. The Limitation Act, 1623, contains no provision for keeping Promise to alive by acknowledgment a claim liable to be barred under that P''^^'" Act, but the omission was supplied by judicial decision. The principle upon which an acknowledgment could be effectually made was for a long time doubtful, and opinions varied whether a mere admission of the claim was sufficient, or whether the acknowledgment must amount to a promise to pay. At length the doubt was set at rest by Tanner v. Smart (1827), 6 B. & C. 603, and it has not since been questioned (see jyer Bowen, L.J., in Green v. Humphreys (1884), 26 C. D. p. 479), that an acknow- ledgment of a claim on a simple contract will only keep it alive if the acknowledgment amounts to a fresh promise to pay. The reason for this was found in the fact that the original cause of action was barred by the absolute provision of the statute, and no relief could be given to the plaintiff unless he could show a^nfiwjiause of action within six years. The promise to pay gave this new cause of action, and though, if the promise was between the same parties as the original contract, it was not necessary to set it out in the declaration, yet, for the purposes of the statute, the new promise was considered to be incorporated in the declaration. It followed that, for the acknowledgment to be effectua^l, the The new new promise which it implied must correspond with the original P^'O'^ise. contract alleged in the declaration. " The only principle," said Lord Tenterden, C.J., in Tannery. Smart, "upon which the acknowledgment can be held to be an answer to the statute is this, that an acknowledgment is evidence of a new promise, and, as such, constitutes a new cause of action, and supports and establishes the promises which the declaration states. Upon this principle, whenever the acknowledgment supports any of the promises in the declaration, the plaintiff' succeeds ; when it does not support them (though it may show clearly enough that the debt has never been paid, but is still a subsisting debt), the plaintiff fails." Consequently an acknowledgment can only preserve a claim to payment of a debt; the doctrine has no application to an action of tort: Hurst v. Parker (1817), 1 B. & A. 92 ; Tanner v. Smart (loc. cit., p. 606); or to an action 340 COMMENCEMENT OF ACTION. [CHAP. VII. for breach of a contract to do or not to do a specified act, other than the payment of money : Boydell v. Drummond (1808), 2 Camp. p. 160; see Whitehead v. Howard (1820), 2 Br. & B. 372; Short v. McCarthy (1820), 3 B. & A. 626. Implied For a promise to operate as an acknowledgment it need not promise. : ]^q express nor need it be absolute. An implied promise is ! sufficient, and from a simple acknowledgment of a debt a promise ■ to pay will be implied. So again the promise need not be an Conditional absolute promise to pay forthwith or on request. It may be promise. conditional upon the happening of a specified event, such as the defendant's obtaining means to pay ; or it may be a promise to pay after a certain period. In such cases there is no cause of action on the new promise, and the bar of the statute is not excluded, until the event has happened or the period has elapsed, so that the conditional promise is turned into an immediate absolute promise. Judicial state- The above principles are stated in the following passages :— mentsof the "Upon a general acknowledgment, where nothing is said to prevent it, a general promise to pay may, and ought to be implied ; but where the party guards his acknowledgment, and accompanies it with an express declaration to prevent any such implication, wh}^ shall not the rule expressum facit cessarc taciturn apply ? " — jvr Lord Tenterden, C.J., in Tanner v. Smart (1827), 6 B. & C. p. 609. " The legal effect of an acknowledgment of a debt barred by the Statute of Limitations is that of a j)romise 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 the new promise. But the new promise, and not the old debt, is the measure of the creditor's right. If the debtor simply acknowledges the old debt, the law implies from that acknow- ledgment a promise to pay it ; for which promise the old debt is a sufficient consideration. 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 " : jjer Wigram, V.C, in Philips v. Philips (1844), 3 Hare, p. 299. " There must be one of these three things to take a case out of the statute : Either there must be an acknowledgment of the debt from which a promise to pay is to be implied; or, CHAP. VII.] ACKNOWLEDGMENT. 341 secondly, there must be an unconditional promise to pay the debt ; or, thirdly, there must be a conditional promise to pay the debt and evidence that the condition has been performed " : 2)er Mellish, L.J., in Ee River Steamship Co., Mitchell's Claim (1871), 6 Ch. p. 828. See also per Parke, B., in Smith v. Thome (1852), 18 Q. B. p. 143; per Channell, B., in Lee v. Wilmot (1866), L. E. 1 Ex. p. 367; per Amphlett, B., in Chasemore v. Tvrner (1875), L. K. 10 Q. B. p. 507 ; and Green V. Humphries (1884), 26 C. D. p. 478, C. A., where Cotton, L.J., explained a dictum of Lord Blackburn's in Morgan v. Rouiands (1872), L. E. 7 Q. B., p. 498, that a promise must be inferred in fact, and not merely implied in law. It follows that where reliance is placed upon an acknow- circum- ledgment as implying a promise to pay, it is essential that ^.g^uttincr there shall be no words accompanying the acknowledgment acknowledg- which are inconsistent with such a promise ; and, if the promise ™^" ' is conditional, that the condition shall have been performed. " A mere acknowledgment," said Bramwell, L.J.,in Meycrhoff y. Froehlich (1878), 4 C. P. D., p. 65, "will be insufficient, if the debtor states either that he will not pay, or that he will pay only upon a condition which remains unfulfilled, or at a time which has not elapsed." And where the debtor accompanies his promise with a condition, it is not necessary for him to go further and say that, except on the performance of the condition, he will not, or cannot pay : Barrett & Sons, Ltd. v. Davies (1904), 91 L. T. 736, C. A. The attaching of a condition to the promise excludes an absolute acknowledgment. (ii.) By and to ivhom the Acknowledgment must he made. // Since the acknowledgment operates as a fresh contract and By party revives the liability under the original contract, it follows that J^^^^agent. it must be given by, or on behalf of, the party originally liable, or some person on whom his liability has devolved, and this is recognized by the statutory provisions that it must be signed "by the party chargeable thereby" — that is the original con- tractor or his representative — or his agent : supra, p. 325 ; and if by an agent, the acknowledgment must be in fact within the scope of his agency: Whitchonsc v. Ahherley (1845), 1 C. & K. 642 ; Curwen v. Milhurn (1889), 42 C. D., p. 432. Since the liability upon a simple contract debt continues Executors, after the death of the debtor, an acknowledgment may be given bis ageut. 342 STOPPING THE STATUTE. [CHAP. VII. by bis personal representatives. It has been said that, as against them, an acknowledgment is only effectual if it is made in the form of an express promise : see j^er Abbott, C.J., in Tulloek V. Dunn (182G), Ey. & M. 416. But there is no reason for departing in this case from the usual rule that a promise may be implied from the mere acknowledgment, though possibly the language used by a personal representative will be construed with special care : see j^cr Bayley, J., in M'CiiUoch v. Dawes (1826), 9 D. & K. p. 43. Such a promise is not implied from an advertisement for creditors : Scott v. Jones (1838), 4 CI. & F. 382. After an administration decree, an executor cannot by acknowledgment revive a debt as against the beneficiaries : PhilUjys V. Beal, No. 2 (1863), 32 Beav. 26. As regards acknow- ledgment by one of several co-executors, see infra, p. 354. Infant. An infant can make a binding contract for necessaries, and he can consequently, while still an infant, revive such a contract by acknowledgment : Willins v. Smith (1854), 4 E. & B. 180. To creditor or And since the acknowledgment operates as a promise, it follows that it must be made to the creditor or his agent : Fuller V, Redman (1859), 26 Beav. 614. It is ineffectual if made to a stranger : Stamford, etc.. Banking Co. v. Smitli, [1892] 1 Q. B. 765, C. A. ; Eor/ers v. Quinn (1889), 26 L. K. Ir. 136. Hence a memorandum in the books of a company not communicated to the creditor cannot operate as an acknowledgment : Busli v. Martin (1863), 2 H. & C. 311 ; and it will not necessarily have this effect even though the creditor is a director and is a party to it : Lowndes v. Oarnett, etc., Co. (1864), 33 L. J. Ch. 418. Similarly, an entry by a debtor in his own books is not an acknowledgment. " There must be an acknowledgment amounting to a promise, either to the creditor or his agent, to pay the debt " : ^jcr Pollock, C.B., in Godwin v. Culley (1859), 4 H. & N. p. 378. But it has been held that an admission of a debt made by the debtor on applying for probate of the will of the creditor is effective as an acknowledgment : Re Enimett (1906), 95 L. T. 755, where a debtor-executor included the debt in the Inland Eevenue affidavit for probate : Smith v. Poole (1841), 12 Sim. 17, 10 L. J. Ch. 192; Maniram v. Seth Rupchand (1906), 22 T. L. E. 619, P. C, where an admission of an open and current account was made on applying for probate. These cases seem difficult to reconcile with the established principle. CHAP. VII.] ACKNOWLEDGMENT. 343 (iii.) Form of Acknoivledgment. Under sect. 1 of the Statute of Frauds Amendment Act, 1828 The acknow- (9 Geo. 4, c. 14), known as Lord Tenderden's Act, and sect. 24 J^^|™Tiu of the Irish Com. Law Proc. Act, 1853 (16 & 17 Vict. c. 113), writing, the corresponding Irish enactment, an " acknowledgment or promise," in order to take a case out of the statute, must be in writing signed by the party chargeable thereby, or (by virtue of sect. 13 of the Mercantile Law Amendment Act, 1856) by his agent duly authorized to make such acknowledgment : see the provisions of the statutes, supra, p. 325. The use of the two words " acknowledgment " and " promise " does not imply that an acknowledgment need not amount to a promise. " The word ' acknowledgment ' is used, not as meaning something different from ' promise,' but as applicable to actions of debt " : Sidwell v. Mason (1857), 2 H. & N. 306, per Bramwell, B. ; see Kcnnett v. Milhank (1831), 8 Bing. 38 ; Meycrhof v. FroeMkh (1878), 4 C. P. D. p. 65. And the Act does not alter the legal construc- tion of documents; it only requires a different mode of proof: Ilaydon v. Williams (1830), 7 Bing. 163, p. 166 ; Moodie v. Bannister (1859), 4 Drew. p. 440. If the written acknowledg- ment has been lost, oral evidence of its contents can be given : TIaydon v. Williams. Where the items of an account are all on one side, and the verbal agree- parties meet and agree verbally on the amount due, this does '"^^^ ^^ *° ^ . amouut due not exclude the necessity for a written acknowledgment : is iusufficient. Jones V. Ryder (1838), 4 M. & W. 32. " The going through an account where there are items on one side only does not alter the situation of the parties at all, or constitute any new consideration": Ashhy v. James (1843), 11 M. & W. 542, per Alderson, B. It had been held otherwise in Smith v. Forty (1829), 4 C. & P. 126. Such an account must be signed by the debtor, and, if he is a partner, before dissolution of partnership : Bristoic V. Miiller (1848), 11 Ir. L. E. 461. The acknowledgment must be signed by the party chargeable Signature, or his agent. The object of signing is to authenticate the genuineness of the document, and where the whole document is in the debtor's handwriting, it is sufficiently authenticated though the signature be at the commencement : Holmes v. Mackrell (1858), 3 C. B. N. S. 789 ; see Lobb v. Stanley (1844), 5 Q. B. 574, on the Bank. Act, 1826 ; O>jiloie y. Foljanibc (1817), 344 STOPPING THE STATUTE. [CHAP. VII. Supple- mentary parol evidence. Evidence of amount of debt. Exemption from stamp duty. 3 Mer. 53, on the Statute of Frauds, s. 4 ; Propcrt v. Parher (1830), 1 E. & M. 625, on the same statute. But the document constituting the acknowledgment must be actually signed; it is not sufficient that it is accompanied by a letter written and signed by a third person, the letter itself being no part of the acknowledgment : Ingram v. Little (1883), C. & E. 186. The written acknowledgment need not contain all the particulars necessary to establish the claim. Thus parol evidence can be given to show the date of the acknowledgment (Edmunds v. Downes (1834), 2 Cr. & M. 459) ; and where the writing refers to a debt, but does not sufficiently identify it, parol evidence is admissible to show what debt is referred to : Spickerndl v. Hotham (1854), Kay, 669 ; Bewley v. Power (1833), Hayes & J. 368. It is admissible also to connect two documents which together make the acknowledgment : McGuffie v. Burleigh (1898), 78 L. T. 264; and, if the creditor is not named, to show to whom it was made. "Evidence may be given showing for or to whom the written acknowledgment was made, by delivery or otherwise " : Hartley v. Wharton (1840), 11 A. & E. 934. Moreover, if there is a written acknowledgment of a debt being due, the amount may be ascertained by other evidence. "It must be considered as fully estabHshed," said Alderson, B., in Cheshjfi v. Dalhy (1840), 4 Y. «fe C. Ex. p. 241, " that a general promise in writing to pay, not specifying any amount, but which can be made certain as to the amount by extrinsic evidence, is sufficient to take the case out of the operation of the Statute of Limitations " : Lechmere v. Fletcher (1833), 1 Cr. & M. 623 ; Bird V. Gammon (1837), 3 Bing. N. C. 883 ; Waller v. Lacy (1840), 1 Scott N. E. p. 203 ; Williams v. Griffith (1849), 3 Ex. 335. Where, however, the acknowledgment specifies a sum as being the balance of a debt, it will be effectual only as to this sum : Dahhs v. Humphries (1834), 10 Bing. 446. And a receipt for £50 did not operate as an acknowledgment with respect to £100 previously mentioned in the same paper under a different date : Robarts v. Eoharts (1828), 1 Moo. & P. 487. But an acknowledgment of a debt as " including " two sums of £100 and £40 was effectual also as to a sum due for costs : Godivin v. Cidley (1859), 4 H. & N. 373. An acknowledgment in writing, although it operates as an agreement, is not on that ground subject to stamp duty : — CHAP. VII.] ACKNOWLEDGMENT. 345 " No memorandum or other writing made necessary by this Statute of Act shall be deemed to be an agreement within the meaning of Amendment any statute relating to duties of stamps." Act, 1828, s. 8. The corresponding Irish enactment is the Irish C. L. P. A., 1853, s. 27. The exemption only extends to documents which would operate as agreements and which are made necessary by the Act. If the document relied on as an acknowledgment has an independent operation which requires a stamp, it cannot be used unless it bears the appropriate stamp ; as where it is a promissory note for the amount of the debt : Parmiter v. Parmiter (18G0), 3 D. F. & J. 461 ; James v. Ryder (1838), 4 M. & W. 32. Formerly an unstamped document could be used for a purpose merely collateral to its real effect : Matheson v. Boss (1849), 2 H. L. C. 28G; Ecans v. Prothero (1852), 1 D. M. & G. 572; Adams V. Morgan (1882), 12 L. E. Ir. 1 : cf. Ashling v. Boon, [1891] 1 Ch. 568. Thus it could be used for the purpose of identifying the debt in respect of which an acknowledgment had been given by a separate document : Spiekernell Y.Hotham (1854), Kay, 669. But sect. 14 (4) of the Stamp Act, 1891, under which an instru- ment cannot, except in criminal proceedings, be given in evidence or be available for any purpose whatever, unless it is duly stamped, appears to overrule these cases ; and an unstamped instrument cannot be used to prove an acknowledgment, either directly or indirectly, if it has any operation, other than as an acknowledg- ment, which requires it to be stamped. (iv.) Tlie Construction of the Acknowledgment. The question of the sufficiency of the acknowledgment, so Construction far as it depends solely on the construction of a written is forjudge, document, is for the judge : Doe v. Edmonds (1840), 6 M. & W. p. 302 ; Collis v. Stack (1857), 1 H. & N. 605; Fnrness v. Meek (1857), 27 L. J. Ex. 34 ; though formerly a different rule pre- vailed : TA<)!)d V. Mannd (1788), 2 T. E. 760; c/. Bucket v. Church (1840), 9 C. & P. 209. But if the document requires to be explained by other evidence it may perhaps be left to the jury: Linsell v. Bonsor (1835), 2 Bing. N. C. 241; Morrell v. Frith (1838), 3 M. & W. 402 ; Boatlcdge v. Bamsai/ (1838), 8 A. & E. 221. 346 STOPPING THE STATUTE. [CHAP. VII. Promise implied from unqualified acknowledg- ment. Request by debtor for an account. From an unqualified acknowledgment that a debt is due a promise to pa}'' it will be implied. Thus where, in answer to a complaint that not even interest had been paid to the creditor on a sum of £100, the debtor replied : " The £100 she has been receiving double and treble for," this was held to be a sufficient acknowledgment: Buchet v. Church (1840), 9 C. & P. 209. The same result follows where the debtor enters the debt as due by him in a signed account : IVaUcr v. Lac// (1840), 1 Scott N. R. 186 ; Holmes v. Mackrell (1858), 3 C. B. N. S. 789 : iVas// v. Hill (1858), 1. F. & F. 198 — unless he claims that on the entire account a balance is due to himself : Williams v. Griffith (1849), 3 Ex. 335 — or admits that it should be debited to him in account (Evans v. Simon (1853), 9 Ex. 282), or indorses his name with a fresh date on an old promissory note (Bourdin v. Greenwood (1871), 13 Eq. 281), or gives a bill of exchange for the amount of the debt (Ex parte Wilson (1841), 1 Mont. D. & De G. 586), or recites the debt in a deed which provides for the ascertainment of the amount by arbitration (Clieshjn v. Dalhy (1840), 4 Y. & C. Ex. 238), or expressly assumes liability, as by writing, " I own myself answerable for this debt " : Spickernell v. Hotham (1854), Kay, 669. And it is sufficient that the debtor expresses his readiness to pay if it can be proved that any money is due {Holmes v. Smith (1858), 8 Ir. C. L. R. 424; Leland v. Murphy (1865), 16 Ir. Ch. Eep. 500), unless he intimates doubt as to the justice of the claim : Spong v. Wright (1842), 9 M. & W. 629. In general a debtor acknowledges the debt by asking for his account to be sent in. The natural inference is that he wants it for the purpose of settling it, and a promise to this effect is implied : Quinccy v. Sharpe (1876), 1 Ex. D. 72. And similarly, where a request is made for particulars of " any unsettled bill of costs " : Curwen v. Milburn (1889), 42 C. D. 424, C. A. The case is still stronger when the debtor, after requesting an account, suggests a jjlan by which to ascertain " clearly the position we hold to each other " : Burrows v. Baker (1869), Ir. E. 3 Eq. 596; or asks for further explanation ot an account received, saying it is his wish to settle it immediately : Sidu-ell v. Mason (1857), 2 H. & N. 306. This is an admission of the debt so far as correct, and a promise to pay it. Similarly, where a man writes to his solicitor and agent to oblige him with an account, that everything may be settled : Bendell v. Carpenter CHAP. VII.] ACKNOWLEDGMENT. 347 (1828), 2 Y. & J. 484 ; or, in asking for an account with vouchers, says that he will examine it, and send a cheque for the amount due : Slicet v. Lindsay (1877), 2 Ex. D. 314. But a reference in a letter to a previous application for an account (by way of explanation and not of repeating the application) is not equivalent to a promise to settle : Williams v. Griffith (1849), 3 Ex. 335. The request for the account must come from the debtor and be signed hy him. The sending in of an account by the creditor, and the failure of the debtor to dissent, does not amount to an acknowledgment : lie McHenry (1894), 42 W. R. 491. And a mere expression by the debtor of readiness to go into an account is not sufficient, as this may be for the purpose of showing that there is nothing due : Crawford v. Crawford (1867), Ir. R. 2 Eq. 166. It is not necessary for the purpose of a suit for an account Acknowledg- to have an acknowledgment that a debt, or any specified amount pending of a debt, is actually due ; it is enough that there is an acknow- '^'^°°™*- ledgment that an account is pending, and that the defendant promises to pay the balance, if any, due from him upon such account: per Wood, V.C, in Prance v. Sympson (1854), Ka}^ 678 ; Langrish v. Watts, [1903] 1 K. B. 636, C. A. And if there is an unqualified admission that there is a pending account between two parties which has to be examined, a promise maybe inferred that the balance shall be paid: Firth v. Slincishy (1888), 58 L. T. 481 ; Maniram v. Seth Rupchand (1906), 22 T. L. R. 619, P. C. ; cf Banner v. Berridge (1881), 18 C. D. 254. Where the defendant wrote : " You and I must go into it and settle the account. ... It is necessary we should settle this matter and put it on the square," there was a sufficient acknowledgment : Prance v. Sympson. But where A. and B. had an unsettled account together, and in 1845 A. signed the following memo- randum : " It is agreed that B, in his general account shall give credit to A. for £174 for bricks delivered in 1834," this was not sufficient to keep alive B.'s right to an account against A.'s estate. The memorandum was an agreement to take a par- ticular item into account as between the parties, but was silent as to how the account stood; and regarded as part payment, the payment was in 1834 : Hughes v. Paramore (1855), 24 L. J. Ch. 681. A request for time implies a promise to pay. " Let matters Request for remain as they are for a short time, and all will be right," is an **™®' absolute acknowledgment : Collis v. Stack (1857), 1 H. & N. 348 STOPPING THE STATUTE. [CHAP. VII. Circum- Btanees excludiug c promise to pay. Debt not admitted. 605. A similar instance will be found in Martin v. Geoghagan, (1850), 13 Ir. L. E. 403. And in Coniford v. Smithard (1859), 5 H. &. N. 13, " I must beg to trespass on your kindness a short time longer till a turn in trade takes place," was held to be an unconditional acknowledgment, and proof that a turn in trade had taken place was not necessary. A written admission of a debt will not exclude the statute if it is accompanied by expressions which exclude the implication of a promise to pay it. "What I think," said Cotton, L.J., in Grccii v. Ihunphrciis (1884), 2G C. D. 474, C. A., at p. 478, " we must find from the writing is not merely an acknowledgment of such a state of circumstances as will throw a duty upon the writer to pay, but words of such a character that you may reasonably infer from the words a promise to pay," In that case a state- ment that by a certain date the debt would have been paid was, under the circumstances, ineffectual to imply a promise. And it follows that a reference to a claim will not exclude the statute if it is accompanied by a denial of liability : Brigstocke v. Smith (1833), 1 Cr. & M. 483. Similarly, the statute is not excluded where the debtor, while admitting the debt, intimates that he will not pay it : A'Court V. Cross (1825), 3 Bing. 329 ; Linsdl v. Bonsor (1835), 2 Bing. 241 ; Briggs v. Wilson (1854), 5 D. M. & G. 12, see judg- ment of Turner, L.J. ; or is unable to pay : — " If in funds I would immediately pay the money and take the bill out of your hands " : Richardson v. Barry (1860), 29 Beav. 22 ; though a statement of inability to pay does not necessarily exclude a promise : Green V. Humphries (1884), 26 C. D. p. 479, C. A. ; Firth v. Slingshj (1888), 58 L. T. 481 ; Re Buskin (1894), 15 E. 117. And there is no absolute acknowledgment where a debtor says that he must be left to settle his affairs without legal compulsion : Fearn v. Lewis (1830), 6 Bing. 349 ; Cassidy v. Firman (1867), Ir. E. 1 C. L. 8 ; Mowhray v. Applehy (1899), 80 L. T. 805 ; or if, while admitting the debt, he reserves the question of settle- ment : Morrell v. Frith (1838), 3 M. & W. 402. Apparently a letter written "without prejudice" cannot be relied on to take a case out of the statute : iic Faver Steamship Co., Mitchell's Claim (1871), 6 Ch. 822, at p. 831. An assertion that a debt has been paid is not turned into an acknowledgment by adding that, if not, " it is very fit it should be " : Poynder v. Bluck (1837), 5 Dowl. 570. And where the CHAP. YII.] ACKNOWLEDGMENT. 34{^ debtor professes ignorance of the debt, be does not acknow- ledge it by expressing annoyance that it is so long unsettled. This is in effect only a promise to examine into the account ; not necessarily to pay it : ColUnson v. Marf/csson (1858), 27 L. J. Ex. 305. An acknowledgment is not made conditional by the debtor claiming a set-off which fails : Lcland v. Marjjhy (1865), 16 Ir. Ch. E. 500; but if the debtor alleges that the claim against him is subject to deductions which will wipe it out, there is no acknowledgment : Re MitchelVs Claim (1871), 6 Ch. 822. An acknowledgment in a letter written without prejudice to the debtor's " rights now, or in any future arrangement that may be made or instituted " is not sufficient : Cory v. Bretton (1830), 4 C. & P. 462. No personal promise to pay is implied when the debtor rersonai merely charges certain property with payment of the debt : ^^chided. Martin v. Knowles (1833), 1 Nev. & Man. 421 ; or directs the creditor to collect specified debts and pay himself out of them : Roictledg,' v. Eamsai/ (1838), 8 A. & E. 221; or refers the creditor for payment to a third party who has money of the debtor in hand : Whippi/ v. Hillarij (1832), 3 B. & Ad. 399 ; or offers to allow the creditor to take certain goods in discharge of the debt : Caivley v. Furnell (1851), 20 L. J. C. P. 197 ; or only offers payment in a particular way, as by set-off (Cr/jj»j>s v. Davis (1843), 12 M. & W. 159), or out of a particular fund: Re Littles (1847), 10 Ir. Eq. E. 275 ; Courtenay v. Williams (1844), 3 Hare, p. 550. But the mere indication of a particular source, as a good harvest, out of which the debtor hopes to pay is not sufficient to restrict the acknowledgment : Bird v. Gammon (1837), 3 Bing. N. C. 883. A promise will not be implied where the admission of the Admission for debt is obviously made for some other purpose ; as where a surety ^Jj^J'^Tmn assents to a creditor receiving dividends under a deed of assign- acknowledg- ment by the principal debtor : Cochrill v. Sparh's (1863), 1 H. & C. 699 ; or the executrix of the debtor admits the debt in proceedings for administration : Re Wolmershausen (1890), 62 L. T. 541. And an admission of a debt made in the course of bankruptcy Admission in proceedings does not take the debt out of the statute. The »^^^"kruptcy. circumstances are such as to prevent the implication of a promipc to pay. Usually the admission is compulsory ; but apart from this, it is not made with any view of paying the full 350 STOPPING THE STATUTE. [CHAP. VII. debt : Conrtenay v. Williams (1844), 3 Hare, p. 550 ; Everett v. Robertson (1858), 1 B. & E. 16; Be Cleridinniufi (1859), 9 Ir. Ch. E. 284; Ex ixirtc Topping (1865), 4 D. J. &' S. p. 562; see Pott V. Clegg (1847), 16 M. & W. 321. Moreover, after the bankruptcy the bankrupt cannot effectually bind his estate : Smallcombe v. Bruges (1824), M'Cl. 45 ; though he can, on the eve of bankruptcy, revive a debt by acknowledgment "with a view to giving the creditor a right to claim in the bankruptcy : Be Lane (1889), 23 Q. B. D. 74. Mere wish to Sometimes a promise has' been implied where the debtor P^^* merely expresses a wish to pay the debt : Gardner v. M'Malion (1842), 3 Q. B. 561; "Your account is quite correct, and 0! that I were going to enclose the amount " : Dodson v. Mackey (1838), 8 A. & E. 225 n.; or hopes that everything will be arranged : Edmunds v. Goater (1852), 15 Beav. 415 ; or says that he will try to pay a little at a time : Lee v. Wilmot (1866), L. E. 1 Ex. 364 ; or that he is expecting money without fail in a month, and will then try to settle : Pryke v. Hill (1899), 79 L. T. 738 : Whitcomhe v. Stcere (1903), 19 T. L. E. 697. But too much reliance must not be placed on these cases, and in general the expression of a hope that the debt will be paid is not a promise to pay it : Hart v. Prcndergast (1845), 14 M. & W. 741 ; Smith v. Thome (1852), 18 Q. B. 134; Backhaul v. Marriott (1857), 2 H. & N. 196; Jupp v. Powell (1884), C. & E. 349. Express ^H express promise to pay of course excludes the statute ; promise to .^^i Undertaking, for instance, to pay costs found due on taxation : Archer v. Leonard (1863), 15 Ir. Ch. E. 267 ; or a promise to pay a certain proportion of a joint debt, extrinsic evidence being admissible as to the amount : Lechmerc v. Fletcher (1833), 1 Cr. & M. 623. A promise to pay as soon as the debtor's affairs are arranged has been held to be a promise to pay after a reasonable time : Chasemore v. Turner (1875), L. E. 10 Q. B. 500; and a promise that a debt " shall be liquidated at the earliest opportunity possible," accompanying expressions of present inability to pay, was a sufncient acknowledgment ; Willy V. Elgee (1875), L. E. 10 C. P. 497. But where an offer by the debtor to pay in a particular manner is rejected by the creditor, the statute is not excluded : Buchnaster v. Russell (1861), 10 C. B. N. S. 745 ; see Francis v. Hawkesley (1859), 1 E. & E. 1052. And an express promise is of no service if a contemporary document shows that it is not intended to be CHAP. VII.] ACKNOWLEDGMENT. 351 acted 013, as where the creditor at once gives a discbarge, though in an invalid form : Goate v. Goate (1856), 1 H. & N. 29. Sometimes express promises to pay are coupled with a con- Promise dition, and then they do not operate to revive the debt unless on abiUtTto evidence is given of the fulfilment of the condition. Thus where pay- the acknowledgment ran, " I cannot pay the debt at present, but I will pay it as soon as I can," no action lay on this new promise without proof of ability to pay : Scales v. Jacob (1826), 3 Bing. 638; Tanner v. Smart (1827), 6 B. & C. 603 ; Gould v. Shirlei/ (1829), 2 Moo. & P. 581 ; Hai/don v. Williams (1830), 7 Bing. 163 ; Re Bcthell (1S87), 34 C. D. 561 ; Lusher v. Hassard (1904), 20 T. L. E. 563, C. A. In Edmunds v. Downes (1834), 2 Cr. & M. 459, the debtor would be happy to pay " as soon as convenient " ; in Hodfjcns v. Graham (1831), Ale. & Nap. 49, the debtors were waiting for a remittance : *' When it comes we shall send you the amount of the bill [of exchange]." These promises were conditional, and evidence was required of ability. In Hammond v. Smith (1864), 33 Beav. 452, where the acknow- ledgment was, " I will pay you as soon as I get it in my power," evidence of ability was given, and the statute was excluded. But a mere reference to present inability does not make the promise conditional, as where a tenant wrote, " If I were able in. any way to reduce [the debt] further, be quite sure I should do so " : Be Buskin (1894), 15 E. 117. Similarly, where the debt was to be paid when certain Promise to mortgage money due to the debtor was received, the statute ran receipt of against this new promise from the date of receipt, and not specitied before : Maunsell v. Hedges (1851), 2 Ir. C. L. E. 88. Tlie receipt was more than six years after the promise. In Langrish V. Watts, [1903] 1 K. B. 636, C. A., the promise was to pay when there was a further division of an estate in which the debtor was interested, and the promise was absolute upon this division being made. In Duh: of Buccleugh v. Eden (1889), 61 L. T. 360, the debtor undertook, if the creditor's executors required it, to repay a loan on the sale of certain property. The property had been sold within six years of action, and the promise being thus made absolute, the statute was excluded. In Barrett & Sons, Ltd. v. ])acies (1904), 91 L. T. 736, also, there was a promise to pay if a sale of property was effected ; l)ut there was no sale, and hence the promise did not save the debt. In Meyerhofw. Eroehlich (1878), 4 C. P. D. 63, C. A., the debtor 352 STOPPING THE STATUTE. [CHAP. VII. Other conditional promises. wrote : " I shall be glad, as soon as my position becomes some- what better, to begin again and continue with my instalments." There was no proof that his position had substantially improved, and the case was not taken out of the statute. "Where a surety promises to make up the principal debtor's deficiency, there is, perhaps, no absolute promise until the deficiency is ascertained : Humplircys v. Jones (1845), 14 M. & W. 1 ; but, assuming such a promise to be conditional, it is not necessary to sue the principal debtor in order to turn it into an absolute promise. It becomes absolute when application has been made to the debtor without result : S. C. Where the surety, on being applied to, asked that means should first be used to compel his principal to pay, this was a promise to pay if the principal did not: Fisk v. Mitchell (1871), 24 L. T. 272. Where the promise was to pay the amount found due by an conditionalon ^ward, and there was no award, this was not an unqualified iirbitration. acknowledgment. The award might have found nothmg due : Hales V. Stevenson (1863), 8 L. T. 798; Femier v. Lord (1898), 14 T. L. E. 450. So an expression of readiness to have questions settled by arbitration is at most a conditional promise to pay on arbitration, and if, through the creditor's fault, no arbitration is held, the condition is not satisfied : Mitchell's Claim (1871), 6 Ch. 822. But in Cheshjn v. Dalhi/ (1840), 4 Y. & C. Ex. 238, where no arbitration took place, parol evidence of the amount due was allowed. Promise When acknowledg- ment may be given. (v.) When the Acknoidedgmcnt may he given. Inasmuch as the promise contained in the acknowledgment furnishes the new cause of action, it is essential that the acknowledgment shall have been given before the action is commenced : Bateman v. Pinder (1842), 3 Q. B. 574. But it is not necessary that it shall have been given within sis years of the original cause of action. The statute does not extinguish the debt, and hence the debt forms a good consideration for the new promise, notwithstanding that the statutory period has run: see Willins v. Smith (1854:), 4 E. & B. p. 185; Spickernell V. Tlotham (1854), Kay, 669 ; though it is easier to construe an acknowledgment as an unconditional promise when it is given before the statute has run, than when it is given afterwards : Cornforth v. Smithard (1859), 5 H. & N. 13, j^er Pollock, C.B., and see S. C, 29 L. J. Ex. 228. CHAP. YIL] ACKNOWLEDGMENT. 353 (vi.) Effect of the Acknowled(/iiient. Since the acknowledgment operates as an implied promise Ackuowledg- it is effectual to keep the debt alive only as against the person contractor or by whom or on whose behalf it is made. Formerly in a ^^^^^^"toi"- „ ,.. ,,-i-i , Former law. case 01 contmmng contract in which several contractors were bound, whether jointly or severally, each was deemed to be the agent of the rest for making an admission of the debt, and consequently an acknowledgment by one saved the statute as regards all : Whiteomb v. Whiting (1781), Dougl. 652 ; Pcrham v. Raynal (182^), 2 Bing. 306. But the death of one co-contractor severed the contract, and his estate was not liable to be affected by an acknowledgment given by the survivor: Atkins v. Tredgold (1823), 2 B. & C. 23; Aidt v. Goodrich (1828), 4 Euss. p. 434 ; nor, on the other hand, would an acknowledgment by the executor affect the survivor : Slater V. Lawson (1830), 1 B. & Ad. 396. With respect to co-executors of a deceased sole contractor, the better opinion seems to have been that the acknowledgment of one was not effectual to raise a promise as against another ; Tullock V. Dunn (1826), Pty. & Moo. 416 ; see Scholcy v. Walton (1844), 12 M. & W. 510 ; and since the creditor was bound to sue all the executors jointly, the acknowledgment of one did not assist him : see Re Macdonald, [1897], 2 Ch. 181, p. 187. But the law was put on a new footing, both for the case of Presont law. co-contractors and of the co-executors of a sole contractor, by Lord Tenterden's Act (9 Geo. 4, c. 14), sect. 1 of which enacts as follows : — " Where there shall be two or more joint contractors, or statute of executors or administrators of any contractor, no such joint con- Frauds tractor, executor or administrator shall lose the benefits of the Act' 1828 said enactments [i.e. the Limitation Act, 1623, and the corres- s. 1. ponding Irish Act, 10 Car. 1, sess. 2, c. 9], 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. [Proviso jjrescrvirKj the effect of part payment; infra, p. 379.] "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 plaiutilF, though barred by eith(!r of the said recited Acts, or this Act, as to one or more of such joint contractors, or executors or administrators, T.L.A. 2 A 351 STOPPING THE STATUTE. [CHAP. vn. Effect of statute. 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 recoA'er, and for the other defendant or defendants against the plaintiff." The Act 10 Car. 1, sess. 2, c. 9, was repealed by the Ir. C. L. P. A., 1853, and s. 21 of that statute now provides to the above effect for Ireland. The effect of these enactments as regards co-contractors is to enable an action to be brought against the one who gives the acknowledgment, and, although the liability is joint, the action will not be defeated by the non-joinder of another co-contractor in whose favour the statute has run ; while, on the other hand, the acknowledgment is not effectual against such other co-con- tractor, and should he have been joined, judgment will be given in his favour. As regards co-executors, while the acknowledg- ment of one will not bind the others so as to involve them in any personal liability, yet it w'ill bind the estate ; and after the death of the executor who has given the acknowledgment, the liability which has thus been kept alive can still be enforced against the estate : Ec Macdonald, [1897] 2 Ch. 181. An acknow- ledgment by one partner will bind the other on the ground of agency, but it should be clear and distinct: Holme v. Green (1816), 1 Stark. 488 ; infra, 382. II. PAET PAYMENT. Claims saved by part payment. (1) Claim by mortgagee to laud. General Princijjles. When the statute is running (1) against a mortgagee, (2) against a right to recover a sum of money charged on land or secured by judgment, or a legacy, (3) against the right to recover a sum of money due under a specialty or (1) under a simple contract, it may be checked by payment made on account either of principal or interest. Under the R. P. L. A., 1837, as modified by sect. 9 of the Pi. P. L. A., 1871, the mortgagee may enter or bring an action at any time within twelve years " after the last payment of any part of the principal money or interest " secured by the mortgage : snjjra, p. 85. CHAP. VII.] PART PAYMENT. 355 Under sect. 8 of the E. P. L. A., 1874, twelve years is a bar (2) Claim to to proceedings to recover any sum of money secured by mort- Xn-%tl on gage or judgment, or otherwise charged upon land, or any land, etc. legacy, " unless in the mean time 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 pay- able or his agent, to the person entitled thereto or his agent " : sujyra, p. 323. These words replace the same words in sect. 40 of the Act of 1833. There is a corresponding provision with reference to shares of intestates' estates in the Law of Property Amendment Act of 1860, sect. 13 : siqjra, p. 169. The pay- ment may be made after the twelve years have run : supra, p. 336; Beamish v. Whitneij, [1908] 1 I. R 38. Under the Civil Procedure Act, 1833, sect. 5, the twenty (3) Specialty 3'ears' limit on actions to recover specialty debts runs afresh " if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such . . . specialty . . . or his agent, or by part payment or part satisfaction on account of any principal or interest being due thereon " : supra, p. 324. There is no statutory provision regulating the effect of (4) i^imple payment upon simple contract debts, and payment only saves jcbts' the debt when it is such that a promise to pay the debt can be implied. An action against a mortgagor on the covenant for payment (5) Personal contained in the mortgage deed is subject, not to the twenty Ji^'^,^.'^^^'* ^""^ years' limit of the Civil Procedure Act, 1833, but to the twelve charged years' limit under sect. 8 of the Act of 1874, since it is an action ^" *°\' to recover money secured by mortgage : Re Sutton (1882), 22 under C. D. 511, C. A. ; and it is the same where the action is on a "^l^lg^^J"" collateral bond given by the mortgagor : Fearnside v. Flint (1883), 22 C. D. 579. As against the mortgagor, therefore, the effect of payment depends on sect. 8 of the Act of 1874, whether the proceedings arc against the land or against himself personally. But where a surety has joined in the covenant in the (/») Claim mortgage deed, an action against the surety appears to be gjjrd""^-,,^ subject not to sect. 8 of the Act of 1874, but to the Civil Pro- mortgagor, cedure Act of 1833 (Kay, J., and Bowen, L.J., in Re Frishij (1889), 43 C D. lUG, and Stirling, J., in Re Wolmershauscn, 356 STOPPING THE STATUTE. [CHAP. YH. (c) Simiilo contract debt charged ou laud. Effect of the statutes. Annuity. Payment must be an admis- sion of right. (1800), G2 L. T. 541 ; contra, Cotton, L.J., in Be Frishij), and it lias been decided that this is so where the surety has made him- self liable on a collateral bond, since an action against him is not to recover the money charged on the land, but damages for non-payment of that money : Be Powers (1885), 30 C. D. 291, C. A. Where the mortgagor is liable only for a simple contract debt, the six years' limit under the Limitation Act, 1623, applies, and the period for enforcing the personal liability is not extended to twelve years under sect. 8 of the Act of 1874, not- withstanding that the money is secured by mortgage : Barnes v. Glenton, [1899] 1 Q. B. 885, C. A. Thus the E. P. L. A., 1837, governs the effect of payment when a mortgagee brings an action to recover possession or to foreclose ; sect. 8 of the E. P. L. A., 1874, when an action is brought to recover money out of land, or to recover against the mortgagor on his covenant the money secured by the mort- gage or to recover a judgment debt, or a legacy ; sect. 5 of the Civil Procedure Act, 1833, when an action is brought on a covenant to secure money not charged on land, and (probably) where it is brought on a covenant by a surety, even though the money is charged on land ; and the doctrine of implied promise applies to all personal actions brought on simple contract debts, whether the money is also secured on land or no. Where an annuity is created by will and not charged on land, and regular payments are made, but not of an amount sufficient to meet the instalments in full, it has been held that they operate as payments of so many parts of the principal money constituting the annuity so as to keep alive the right to recover the entire arrears : Be Ashu-cWs Will (1859), Johns. 112. But it seems more correct to regard each payment as made in respect of the instalment then due, so that the arrears recover- able would be limited to twelve years : cf. supra, p. 168. Although a payment taking effect under the statutes need not be such as to imply a promise to pay, yet it is a principle applicable to part payment under all Statutes of Limitation that it must be made as an admission of right : 2^cr Jessel, M.E., in Harlock v. Asliberry (1882), 19 C. D. 639 ; that is, of a right in the recipient to the balance of the debt. Consequently it must have been made as a payment on account, and must not purport to be in satisfaction of the entire demand : Taylor v. Ilollard, CHAP. VII.] PART PAYMENT. 357 [1902] 1 K. B. 676, And it must be made in respect of the debt sued on : Ashlin v. Lee (1875), 44 L. J. Ch. 376, C. A. Where assets of an intestate fall in more than twenty years after his death, a payment by the administrator out of them is not an admission of liability in respect of the general estate, as to which the statute has then run, so as to revive the right of the next-of-kin to bring an action for administration of such estate : Be Johnson (1885), 29 C. D. 964, p. 974. In Taiilor v. Hollard (supra), it seems to have been con- Compulsory . payment. sidered that no admission could be implied from a payment which was not voluntary or from a payment by a trustee in bankruptcy. But while this is so in the case of simple contract debts, since the payment is useless as an admission unless it implies a promise to pay the balance of the debt (ef. Davics v. Edwards (1851), 7 Ex. 22, infra, p. 377), no such promise is required for an admission of a specialty debt; and it is no objection to such an admission that it is made in bankruptcy, or by execution levied on a judgment (Brew v. Brew, [1899] 2 I. E. 163), or by a receiver whose position constitutes him the agent of the debtor, so that it is not the voluntary act of the debtor: Cronin v. Dcnnehy (1869), Ir. R. 3 C. L. 289, decided on the C. L. P. (Ir.) A., 1853, s. 23, the Irish enactment corre- sponding to 3 & 4 Will. 4, c. 42, s. 5 ; cf. Vincent v. Willincjton (1842), Long. & T. 456. As in the case of acknowledgment, it will be convenient to deal separately with the effect of payment as regards (1) mortgages and specialty debts, and (2) simple contract debts. (1) Moiigages and Specialty Debts. (i.) Jjij whotn Payment may he made. The R. P. L. A., 1837, speaks of payment simply, without in Paymcutmuat any way specifying by whom it may be made. On sect. 8 of the jjabio llr*^"" R. P. L. A., 1874 (replacing sect. 40 of the R. P. L. A., 1833), it interested, is not clear whether the words "by the person by whom the same shall Ijc payable or his agent" apply only to acknowledg- ment or also to payment. In ('liinncrjj v. Evans (1864), 11 11. L. C. p. 134, Lord Westbury, C, tliought that they applied to both cases, but the natural construction is that thoy apply to 358 STOPPING THE STATUTE. [CHAP. VII. Payment by agent. Payment by receiver. acknowledgments only : see Ilarloek v. Ashherry (1882), 19 C. D. 539, C. A. ; Homan v. Andrews (1850), 1 Ir. Ch. R. p. 112. In sect. 5 of the Civil Procedure Act, 1833, it is clear that payment is not qualified by the words " by the party liable." Hence in none of the three statutes is the person by whom the payment is to be made expressly defined, though it has been suggested that the Civil Procedure Act, 1833, impliedly requires that the payment shall be by the person liable or his agent : Forsyth v. BrisUnce (1853), 8 Ex. 716 ; Boddamv. Morlcy (1857), 1 De G. .t J. p. 6 ; inhh v. Walker, [1893] 2 Ch. 429. The last-mentioned statute in terms requires, however, that the part payment shall be an acknowledgment {Whitley v. Loire (1858), De G. & J. p. 712), and it is a principle applicable to all Statutes of Limitation, that the payment must be by a person liable as an acknowledgment of right (Harlock v. Ashherry (siqjra), per Jessel, M.R.), or at any rate by a person interested to pay : 2'>cr Lord Cranworth, C, in Boddam v. Morley (1858), 1 De G. & J. p. 18. The payment can, of course, be made by the person primarily liable on the mortgage or specialty contract — or by his personal representative: Thompson v. Hurley, [1905] 1 L Pi. 588 — and, either by implication from the words of the statutes, or upon the general doctrine of agency, it can be made by his agent. But where a mortgagee relies upon payment by an agent of the mortgagor, it is necessary to ascertain that the agency is in fact continuing. In Neiuhould v. Smith (1886), 33 C. D. 127, C. A., the mortgagor's solicitor paid interest to the mort- gagee on a mortgage created in 1863. This he did as the mortgagor's agent till 1866, but his agency was not shown to have continued after that year, and his subsequent payments were, therefore, ineffectual to keep the mortgage alive. A cestui que trust may be, for the purpose of making a part payment, the agent of the trustee : Vincent v. Willington (1842), Long. & T. 456 ; and a doweress is the agent of the heir of the mortgagor, if she is in possession of the whole of the mortgaged estate with his consent: Ames v. Mainunring (1859), 26 Beav. 583. A receiver appointed by the Court {Chinnery v. Evans (1864), 11 H. L. C. p. 134), or by a mortgagee under the power conferred upon him by the mortgage deed or by statute {Be Hale, [1899] 2 Ch. 107, C. A.), is treated as the agent of the person liable to pay, and payment by him is effectual, provided, in the case of a receiver appointed by the Court, that the payment is authorized CHAP. VII.] PART PAYMENT. 359 by the Court : Widtlq/ v. Lowe (1858), 25 Becav. 421 ; 2 De G. & J. 704. And so, too, as to a payment made to a judgment creditor under an order of the Landed Estates Court in the presence of the debtor : Cronin v. Dennelnj (1869), Ir. R. 3 C. L. 289 ; see Be Irwin's Estate, [1907] 1 I. E. 357. An assignee of an equity of redemption, who has covenanted Assignee of with the mortgagor to pay the mortgage debt, becomes his redemption, agent to pay the interest, so that a payment by the assignee is effectual to keep aHve the debt: Forsyth v. Bristowe (1853), 8 Ex. 716; and the same result would follow in the case of a sale of the equity of redemption, even without express covenant, since the purchaser is under an implied obligation to indemnify the vendor: Waring v. Ward (1802), 7 Ves. 332; Bridgman v. Daw (1891), 40 W. R. 253. Similarly, an assignee who, subsequently to the assignment and with the privity of the mortgagor's representative, undertakes liability to the mortgagee, can make a payment which will be effectual as an acknowledgment : Dihb V. Walker, [1893] 2 Ch. 429. But where some person other than the debtor is in possession Person in of land which is subject to the debt it seems to be unnecessary fano'^^^'^'^ ° to rely upon the doctrine of agenc}'. If the debt is a direct charge on the laud, the person in possession is liable to lose the land if the mortgage debt or interest is not paid, and he is consequently a person interested to make the payment ; and equally so if the debt is not a direct charge on the land, but is recoverable out of the land in an administration action. Conse- quently it may be said generally that a payment by an assignee of the mortgagor, or by a devisee of the mortgagor or of a specialty debtor, is a payment by a person interested, and as such is effectual to keep alive the appropriate remedy whether the payment is referred to the R. P. L. A., 1837, to sect. 8 of the R. P. L. A., 1874, or to sect. 5 of the Civil Procedure Act, 1833 : see Boddani v. Morleg (1857), 1 De G. & J. p. 18; Conpe v. Cresswdl (1866), 2 Ch. p. 124; Pears y. Laing (1871), 12 Eq. p. 54. And the same consideration would render effectual a payment by a person who was in possession without title. It is a different question whether the payment is effectual only against the land or against the mortgagor and his estate generally, and this will l)e dealt with subsequently : infra, p. 368. And a person who is neither the agent of the original debtor, rayau'iit by nor is interested as being in possession of land liable to the "■ i^^'''^'^" 360 STOPPING THE STATUTE. rCHAP. VII. entitled to pay. Summary. Payment by mere stranger not eifectual. debt, may nevertheless make an effectual payment under the statutes, (1) if, by the terms of the mortgage contract, he is entitled to make the payment, or (2) if, as between himself and the mortgagor, he is bound to make it. The former case occurred in Leir'ni v. JVihon (188G), 11 App. Cas. 639. Under a mortgage by W., who as between himself and H. was a surety, but as regarded the mortgagee was a principal debtor, provision was made for redemption on payment either by W. or H. H. and W. were also liable for the mortgage debt on a joint and several bond. In construing a Canadian statute corresponding to the E. P. L. A., 1837, it was said that a payment was sufficient if " made by a person who under the terms of the contract is entitled to make a tender, and from whom the mortgagee is bound to accept a tender of money for the defeas- ance or redemption of the mortgage." Accordingly a payment by H. was effectual to keep up the mortgage on the property of W. And the second case occurred in Bradshaw v. WidrinfiUm, [1902] 2 Ch. 430, C. A. There J. E. B. mortgaged his land to secure an advance for the benefit of W. B., his son, to whom he at once paid over the money, taking W. B.'s bond for the amount, with interest at the rate secured by the mortgage. It was held that payments of interest made by W. B. to the mortgagee were as effectual as if made by J. E. B. " Whether," said Collins, M.R., " the person who makes the payment does so under an obligation imposed on him by law as a legal agent without [the mortgagor's], assent, or whether he is appointed under some arrangement with the mortgagor, so long as he pays with the assent, express or implied, of the mortgagor, the payment, as it seems to me, will keep alive the liability of the mortgagor, being in point of law an admission by him of the subsistence of the security." It appears, then, that under each of the statutes the payment may be made by any person who is liable, or interested, or entitled to pay, or who is in such a relation to the debtor that a payment by him operates as an admission by the debtor. On the other hand, payment by a mere stranger is not sufficient; Chhmerijy. Evans (1864), 11 H. L. C. p. 133 ; Jloman V. Andrews (1850), 1 Ir. Ch. E. 106, p. 112 ; He Cllfden, [1900] 1 Ch. 774. And although, if a tenant pays his rent to the mortgagee, such rent will in effect go in satisfaction of the principal or interest of the mortgage debt, yet the tenant is a stranger to the mortgage contract, and his payment does not CHAP. YIL] PART PAYMENT. 361 check the statute: Harlock v. Ashhcrn/ (1882), 19 C. D. 539, C. A. ; (f. Cockhuni v. Edwards (1881), 18 C. D. p. 457, C. A. (ii.) Mode and Proof of Payment. Where the tenant for hfe of land is himself the owner of a Constrnctivo • • 1 • n I ^ L^ • L LI payment. charge upon it, since it is his duty to keep down the interest, he is deemed to pay himself out of the rents and profits, and this is a sufficient payment to save the bar of the statute : Burrell v. y^ z/zx ^ /^9J^ Earl of Egremont (1843), 7 Beav. 205; cf Kirkwood v. Lhv/d "^^^jgS^^ (1849), 12 Ir. Eq. E. 585 ; Carhery v. Preston (1850), 13 Ir. Eq. ,c[^,"{y ) f R. 455 ; Bnrrowes v. Gore (1858), 6 H. L. C. p. 963 ; Re Keaye ' / (1869), Ir. R. 3 Eq. 659. And the principle applies whenever the same person is bene- ficially entitled for the time being to the land and the charge, although the legal right to receive the interest and the legal liability to pay may be vested in different persons as trustees : Topham v. Booth (1887), 35 C. D. 607. And so too where a husband is liable to pay and his wife is entitled to receive the interest, and the two are living together in amity : Re Haues (1892), 41 W. R. 173. Where the husband, being so liable, has died, and his widow is his personal representative and is entitled to the interest for her life, the statute does not begin to run in favour of the husband's estate till her death : MUls v. Borthwiek (1865), 35 L. J. Ch. 31. But where the owner of the charge is owner of only a share in the land, the principle of constructive payment does not keep alive the charge against the other shares: Re Eineijan's Estate, [1906] 1 I. E. 370. Reliance can be placed on constructive payments only where Existing . there is an existing charge on the land. The doctrine does not ^^^^^se. apply to a case where a charge has been paid off out of other property so as to create as against the land a right of contribu- tion. Thus where two devised estates, X and Y, were subject to a ^,^, ^j^^^^ common mortgage, and the mortgage was wholly satisfied out of the proceeds of Y, the fact that the same person was tenant for life of X, and also of the residue of the proceeds of sale of Y, did not operate as a constructive payment on account of the liability of X to contribute to the mortgage so as to preserve such liability : Re Allen, [1898] 2 Ch. 499. And in order that a constructive payment of interest, arising Lo^mI iinhi- from the identity oi' tlie hand to receive and the hand to pay, ' ^' 362 STOPPING THE STATUTE. [CHAP. vn. Be Enqlaml. Covenniit in settlement. Receipt of part of security. should Lave the full effect of an actual payment it is necessary that the person in possession of the land subject to the charge should be under a direct legal liability to pay the interest. In the absence of such liability the constructive payment will only keep the charge alive against the land ; it will not keep it alive for other purposes. A settlor covenanted to pay a sum of money and charged it on land. He devised the land in fee to A., ■who was also tenant for life of the money secured by the covenant and charge. A. being thus in receipt of the income of the land and entitled to the interest of the charge, there was a constructive payment of the interest; but, inasmuch as he was under no liability to pay, the effect was confined to the land; the constructive paj^ment did not keep alive the remedy on the covenant against the testator's j)ei'Sonal estate : He England, [1895] 2 Ch. 820, C. A. Where a settlement contains a covenant to pay money, and the covenantor is entitled to the income for life, since there is the same hand to pay and to receive interest, the statute does not run : He Dixon (1892), 48 W. R 665, C. A. But where the covenant is for the transfer of stock in which the covenantor is to have a life interest, and the transfer is not made, since there is no fund in existence capable of producing income, it will not be assumed that the covenantor has been paying himself, and the statute runs against the action on the covenant : SpicherneU v. Hotham (1854), Kay, 669. When a mortgagee receives money which represents part of his security, this in general operates as part payment so as to keep alive the debt ; as where he is in receipt of an annuity which constitutes a security for the mortgage debt or part of it : Stalcy V. Barrett (1856), 26 L. J. Ch. 321 ; or where part of the mortgage money is paid out of funds in Court representing the mortgaged land : Re Irwin's Estate, [1907] 1 I. E. 357 ; or where he receives policy moneys which form part of the security, and applies them in reduction of the debt : lie Conlans Estate (1892), 29 L. E. Jr. 199. But that such receipts may operate as payments by or on account of the mortgagor, they must be made with his concurrence or in proceedings to which he is a party ; otherwise they will operate only as payments by a stranger, and will not keep the debt alive : Be CUfden, [1900] 1 Ch. 774. And there must be an actual receipt. The principle does not apply in regard to bonuses which the mortgagee elects to have CHAP. VII.] PART PAYMENT. 363 added to the policy instead of receiving them in cash : B.e Greene's Estate (1884), 13 L. E. Ir. 461, p. 468, C. A. The prohibition against proving payment by indorsement on Proof of an instrument, contained in sect. 3 of the Statute of Frauds P'^y™^'^*- Amendment Act, 1828 (Infra, p. 379), does not apply to tlie Civil Procedure Act, 1833, sect. 40; and hence payment of interest on a bond debt can be proved after the obligee's death by an indorsement on the bond, provided the date is established, and that such date is prior to the expiration of the statutory period : Searle v. Barrington (1729), 2 Str. 826, 3 Bro. P. C. 593 ; Tamer v. Crisp (1740), 2 Str. 827 ; Briggs v. Wilson (1854), 5 D. M. & G. 12 ; Pioscoe's Nisi Prius Evidence, 18th ed. p. 37. And an indorsement on the bond of the name of a cestui que trust can be used to connect payments to the eestui que trust ^vith payments of interest on the bond : Glcadow v. Atkin (1833), 1 Cr. & M. 410. If the accounts of the creditor or his agent show entries to the credit of the debtor these can be connected with the particular debt by contemporaneous letters of the debtor : Vincent v. Willington (1842), Long. & T. 456. (iii.) To ichom Payment may he made. Although the statutes referred to above {supra, p. 354) do Payment not specify the person to whom payment in respect of a mort- creditor or his gage or a specialty debt must be made {cf. Forsyth v. Bristow ^o^°*- (1853), 8 Ex. 716)— unless in sect. 8 of the E. P. L. A., 1874, the words "to the person entitled thereto or his agent" refer to payment — yet it seems that there is no admission of right so as to make the payment effectual unless it is made to the creditor or other person entitled to receive the money or his agent : liarclayy. Owen (1889), 60 L. T. 220. In the case just mentioned it was held that an administrator, who was also one of the next-of-kin, was entitled to receive payments in respect of a mortgage debt due to the intestate which he had appropriated to himself as his share, and the mortgage was consequently kept alive. Where the mortgage debt is settled, a payment of interest by the mortgagor to the tenant for life is in point of law a payment by him to the trustees pursuant to his covenant, and a payment by them to the tenant for life pursuant to the trusts of the settlement : Re Somerset, 1 1894] 1 Ch. p. 264, C. A. "Where, in accordance with the terms of a creditors' deed. 364 STOPPING THE STATUTE. [CHAP. VII. payments are made on behalf of the debtor to maintain policies which on the debtor's death are to be applied in discharge of his debts, these are in effect payments to the creditors on account of principal and interest, and they keep alive the remedies of judgment creditors: Scott v. Sijnge (1891), 27 L. E. Ir. 560, C. A. And payments made by arrangement to a creditor of the mortgagee are sufficient : Jones v. Ilhind (1869), 17 W. R. 1091. Effect of payment not restricted to person milking it. Distinction between ac- knowledg- ment aijd payment. (iv.) The Effect of Payment. It remains to consider to what extent a payment made by a person entitled to make it to a person entitled to receive it is effectual; whether it operates only as regards the person making it, or also as regards other persons who are liable directly or indirectly for the debt. Inasmuch as part payment is an admission of right, it has sometimes been held that it is effectual only as against the person making it, or, if he is a limited owner, or pays in a representative capacity, as against the estate which he represents. The leading authorities for this view are Fordham v. Wcdlis (1852), 10 Hare, 217, p. 228; Dickenson v. Teasdalc (1862), 1 D. J. & S. 52; and Coope v. Cresswell (1866), 2 Ch. 112. But part payment is more than a mere admission of right ; it operates for the benefit of all persons against whom the liability can be enforced, and partly for this reason, and partly upon more technical grounds, the view has prevailed that, subject to the special provision of sect. 14 of the Merc. Law Amend. Act, 1856, it preserves the creditor's right of action against all such persons : lloddam v. Morley (1857), 1 De G. & J. 1 ; Re Lacey, [1907] 1 Ch. 330, C. A. The effect of an acknowledgment, it has been seen, is more restricted {svpra, p. 336), and in general it affects only the person giving it. It was observed in Lewin v. Wdson (1886), 11 App. Cas. p. 645, that the difference corresponds to a practical distinction between acknowledgment and payment : — "As regards the person making them, acknowledgment may, as pointed out in Bolding v. Lane (1863), 1 D. J. & S. 122, be made by a person who, though a party to the mortgage contract, has ceased to have any substantial interest in it, and has nothing to lose by the acknowledgment ; whereas payment is certain to be made only by those who have some duty or interest to pay. As regards the recipient, so long as he is paid according to the intention of the contracting parties. CHAP. VII.] PART PAYMENT. 365 he is in full enjoyment of bis bargain, and is not put upon any further assertion of bis rights ; but not so if be only receives acknowledgment." The foregoing remarks apply to payment under the R. P. L. A., Effect of pay- 1887, under sect. 8 of the E. P. L. A., 1874, and under sect. 5 of ^''^t \]'^, the Civil Procedure Act, 1833 ; that is, to payments in respect all the » " stjitiitcs ot mortgages, m respect of money charged on land, legacies, and judgments, and in respect of specialty debts. The effect of payment in respect of a simple contract debt depends, not upon statutory provisions, but upon the doctrine of implied promise, and is governed, therefore, by different considerations. But the statutory provisions, although varying slightly in their language (siq^ra, p. 354), are all subject to the same rule : the payment, if so made as to be effectual at all, is effectual to keep alive the creditor's remedies generally. Thus a payment by a person entitled to make it will keep alive the remedy on a mortgage or charge against the land, although the person making it is not in possession of the land, or is in possession in respect of a limited interest only : it will keep alive the personal remedy on a covenant, although the remedy is to be enforced against another than the person paying ; and after the death of a mortgagor or specialty debtor, a payment by any one person interested in his estate will keep alive the liability of all other persons interested. Payment under the R. P. L. A., 1837, only comes into question when an action is brought for foreclosure : payment under sect. 8 of the E. P. L. A., 1874, when the action is to enforce payment of a sum of money charged on land by proceedings (other than foreclosure) against the land itself, or, if the money is also secured by covenant, by proceedings founded on the covenant ; payment under sect. 5 of the Civil Procedure Act, 1833, when the money is secured by specialty, but is not charged on land. It will be convenient to arrange the decisions under the following heads : — (A) Payments which keep alive a mortgage or charge as ciassiiicaiion against the land subject to it : °^^}^^ ... I TT L 1-11 T T • autuoritiea. (13) Payments which keep alive personal remedies in respect of money charged on land ; (C) Payments which keep alive the remedies against the free assets of a deceased debtor, whether the debt is directly charged on land or no. 366 STOPPING THE STATUTE. [CHAP. VII. Under each head it will be found that, subject to sect. 14 of the Mercantile Law Amendment Act, 185G, the cases support the view that the effect of payment is to keep alive all the creditor's remedies. Payiiieut aftur According to the construction of the K. P. L, A., 1874, poiiod!^^ ^6^^- ^' which has been adopted {supra, p. 336), a payment made after the statutory period has elapsed may revive the debt. But it is possible that a payment by a tenant for life after the statutory period would not be effectual to revive the debt against the remaindermen: Becker v. Ddacour (1881), 11 L. K. Ir. 187 ; Shea v. Moore, [1894] 1 I. K. 158, p. 171, C. A. ; cf. Kirkicood v. Lionel (1849), 12 Ir. Eq. E. p. 596; Ilartij v. Davis (1850), 13 Ir. L. R. p. 28; Tloman v. Andrews (1850), 1 Ir. Ch. E. p. 117; Latoachc v. O'Brien (1846), 10 Ir. Eq. E. 113. (A) Payments irhich keep alive a Mortgage or Charge against the Land. The payment, as just noticed, operates, for the purpose of foreclosure, under the E. P. L. A., 1837; and for the purpose of other proceedings against the land, under the E. P. L. A., 1874, sect. 8. In either case the payment, if made by a person entitled to make it, will keep alive the remedy against the land, although the person paying may have no interest in the land, or only a limited interest in it. Tenant for Tlius a payment by a tenant for life, or other limited owner in present enjoyment of the land, keeps a charge alive against the land so as to bind all persons entitled in remainder: Barclay V. Owen (1889), 60 L. T. 220. It is the duty of the hmited owner to keep down the interest: Re Fitzmauriccs (1864), 15 Ir. Ch. E. p. 461 ; and a mortgagee is entitled to rely upon receipt of interest from the person who for the time being represents the ownership of the land. But the creditor who relies upon payment by a tenant for life must be prepared to prove the payment strictly, and a mere admission by a tenant for life in a deed that all interest has been paid may not be sufficient : Gregson v. Hindley (1846), 10 Jur. 383. Otherwise, said Shadwell, V.C., in that case, "the grossest fraud might be practised on tenants in remainder, since for a mere sixpence CHAP. VII.] PART PAYMENT. 367 the tenant for life might siga an acknowledgment tliat no interest was due." It seems to have been assumed by the Court of Appeal in Paymout by Newhutdd V. Smith (1886), 33 C. D. 127— the decision in the '"»'^t-'ag..r House of Lords (1889), 14 App. Cas. 423, went on a different ment of equity point— that payment by a mortgagor who had parted with his •^^^''^^euiptiou. interest in the land would not be effectual to keep up the mortgage against the present owners of the land ; but it was not noticed that the question had been already decided in an opposite sense by the House of Lords in Chinncnj v. Evans chinnen v (1864), 11 H. L. C. 115. There a mortgage was made in 1776 divans. on estates X, Y, and Z. In 1784 a receiver was appointed on the petition of the mortgagee. Estate Z was sold by the mort- gagor before, and estate X after, the appointment of the receiver, but in neither case was the purchaser aware of the mortgage. The receiver applied the rents of the Y estate in keeping down the interest on the mortgage. It was held that the receiver was the agent of the mortgagor, and that his payments were effectual to keep the mortgage alive against estates X and Z. The judgments of Lord Westbury, C, and Lord Cranworth were both based on the principle that the mortgagor is entitled to make payments on account of the mortgage, and that, so long as he duly makes them, the mortgagee is not bound to inquire how he is dealing with the equity of redemption. This principle applies equally whether, as in Ckinucyij v. Erans, the mortgagor assigns the equity of redemption in only part of the land comprised in the mortgage, or whether he assigns the equity in the whole. The latter case occurred in Bradshatv v. Widdr'uKjton, [1902] 2 Ch. 430, C. A., where payments made by a person who, as between himself and the mortgagor, was under an obligation to pay, were held to be effectual to keep the mortgage alive against the assignee of the land. Although the land is in the possession of a stranger in whose Piiymcnt by favour the statute is running as against the mort'^acror, the '»"'<^''vi:'>i<>iit ° ° o o » (it IKissusBion. mortgagor can still make a good payment to the mortgagee so as to preserve the right of the latter against the land : Doe v. Eijvc (1851), 17 Q. B. p. 371 ; Uoc v. Masscy (1851), 17 (,). L. 373 ; provided that the statute had not commenced U) run against the mortgagor at the date of the mortgage : Thonitmi v. France, [1897] 2 Q. L. 11:}, C. A. The same principle applies where the mortgagor bus died, PiiyiiicnMiy 368 STOPPING THE STATUTE. [CHAP. vir. cxecutora of mortgagor. Charge of specialty debt by will. Payment by persoD entitled to pay- and payments in respect of the mortgage debt are made by his executors. These will keep the debt alive against the land in the hands of the devisee. A payment by the devisee would keep the debt alive against the executors : //(//«, p. 369 ; and in either case the effect of the payment is simply to remove the bar of sect. 8 of the E. P. L. A., 1874, and allow the creditor to sue as though that section were out of the way : cf. Be Laceij, [1907] 1 Ch. p. 353, C. A. Where a testator by his will charges a specialty debt on land, the effect, as between the land and the personal estate, is the same as if the debt had been secured by mortgage of the land originally. Sect. 8 of the E. P. L. A., 1874, applies, and a payment by either the executor or the devisee is effectual as against the other. Moreover, a payment by the devisee of one estate will be effectual as against the devisee of another estate on which the same debt or part of it is charged by the will. The decision of Lord Westbury, C, to the contrary in Dickenson V. Teasdale (1862), 1 D. J. & S. 52, is no longer law : see Be Laccij, [1907] 1 Ch. 330, C. A. And a payment by any person who under the terms of the mortgage contract is entitled to make it will operate to keep the debt alive against the land. In Leivin v. Wilson (1886), 11 App. Cas. 639 {supra, p. 360), where this was held, H., who was personally liable for the debt on a collateral bond, was also specifically mentioned in a mortgage of W.'s land given to secure the debt as a person entitled to make payments in respect of the mortgage. Consequently a payment by H. kept alive the debt against the land : see Cann v. Tanlor (1859), F. & F. 651. Sect. 14 of the Mercantile Law Amendment Act, 1856 {infra, p. 373), which prevents payment by one co-contractor from affecting another, does not apply to the statutes relating to money secured by mortgage. Remedy on mortgagor's covenant. (B) Payments which keejJ alive the Personal Bemedies in respect of Money charged on Land. Where a mortgage debt charged on land is secured also by the covenant of the mortgagor, the remedies against the land and against the mortgagor will affect different persons if the mortgagor disposes of the equity of redemption, or if the equity of redemption becomes vested after his death in devisees or in his heir-at-law. The remedy against the land has already been CHAP. VII.] PART PAYMENT. 369 considered. The remedy against the mortgagor or bis executors is subject to sect. 8 of tbe E. P. L. A., 1874. In the case of an assignment of tbe eiiuity of redemption, the assignee may be treated as tbe agent of the mortgagor to make payments in respect of tbe mortgage debt (sujjra, p. 359), and thus a payment by him will keep alive the remedy against the mortgagor on bis covenant. But it is not necessary to have recourse to the doctrine of agency. The payment by the assignee is a payment by a person entitled or interested to pay, and, being thus a good pay- ment under sect. 8, it keeps alive all tbe remedies for tbe debt, including tbe action on tbe mortgagor's covenant: Forsyth v. Bristoice (1853), 8 Ex. 716 ; Dibb v. Walker, [1893] 2 Ch. 429 ; Alston v. Miiieard (1907), 51 Sol. Journ. 132. Similarly, after tbe death of the mortgagor, the mortgagee is justified in accepting payment of interest from the devisee of the land, and this payment prevents sect. 8 of tbe E. P. L. A., 1874, from running in favour of the executors: Re Gale (1883), 22 C. D. 820 ; Pears v. Laing (1871), 12 Eq. 41 ; Dibb v. Walker, [1893] 2 Ch. 429. It is not clear whether an action against a surety for the Remedy mortgagor is subject to the twenty years' limitation of sect. 3 of J^fjl^^^oJ*^" tbe Civil Procedure Act, 1833, or to tbe twelve years' limitation surety, of sect. 8 of the E. P. L. A., 1874 (supra, p. 157). If the former is the relevant statute, then tbe surety is entitled to the benefit of sect. 14 of the Mercantile Law Amendment Act, 1856, and a payment by tbe mortgagor will not keep the liability of the surety alive : infra, p. 373. But if the latter, then sect. 14 of the Mercantile Law Amendment Act, 1856, does not apply, and the payment by the mortgagor is effectual as against the surety : Ec Pou-crs (1885), 30 C. D. 291, C. A. ; Re Frisbij (1889), 43 C. D. 106, C. A. ; and, where sect. 8 applies, it is effectual also against a person jointly liable as principal debtor : Bailie v. Irwin, [1897] 2 I. E. 614 ; cf. Vincent v. Willincr v. °"^^®^^'*'^y- Maher (1867), L. R. 2 Ex. 153; Worthington v. Grinisditch (1845), 7 Q. B. p. 484. Thus, maintaining a child in lieu of paying interest is equivalent to payment; Badger v. Arch (1854), 10 Ex. 333. And payment may be made by delivery of goods, it being a question for the jury whether the delivery was made on account of tbe particular debt : CoU'umm v. Mar- gesson (1858), 27 L. J. Ex. 305 ; Hart v. Nash (1835), 2 C. M. & E. 337. "Where anything is received upon agreement in reduction of a debt, that is a payment sufficient to take the debt out of the Statute of Limitations " : Hooper v. Stephens (1835), 4 A. & E. 71 ; see Pearee v. Selhg (1842), 6 Jur. 896. Moreover, actual payment is not required. Wbere a married Coustructive woman, whose trustees bad lent trust money to the husband, P^-vment. gave them a receipt for interest in order to avoid a claim on tbe husband, this was equivalent to payment by tbe husband : Amos V. Smith (1862), 31 L. J. Ex. 423: ef. Re Dixon (1900), 48 W. B. 665, C. A. And so, too, where a debtor was on tbe point of paying interest, and the creditor stop^xMl liini, and gave a receipt to his wifu, saying he made her a pi-cscnt of it : Maber v. Maber (1867), L. K. 2 Ex. 153. 378 STOPPING THE STATUTE. [CHAP. vn. Eetention of money. Set-oflf. AVbere parties having cross claims against each other agree that they shall he set-off, this is equivalent to payment. Thus if they have mutual accounts with items on both sides, and they meet together and go through the accounts and strike a balance in favour of one, the setting-off of the earlier items against each other operates as payment ; and there is a new promise for pay- ment of the balance : Ashhij v. James (1843), 11 M. & W. 542; Clark V. Alexander (1844), 8 Scott N. R. 147 ; i>c/- Parke, B., in Pott V. Clegg (1847), 16 M. & W. p. 327. But in the absence of agreement that cross claims shall be set-off against each other, there is no part payment. Where A. was indebted to B. for rent, and B. to A. for wages, and there was no agreement for set-off, the statute was not excluded as regarded the claim for wages : WiUiams v. Griffiths (1835),' 2 C. M. & E. 45. " You must show," said Parke, B., " an agreement between the parties that the rent should go in part payment of the wages." The retention by the creditor of money of the debtor in his hands will not exclude the statute, unless it appears that the debtor authorized the retention and intended to acknowledge his indebtedness as to the balance : Thomas v. Cross (1852), 7 Ex. 728 ; Waugh v. Cope (1840), 6 M. & W. 824 ; Re Bosirell, [1906] 2 Ch. p. 368. See as to retention by a trustee : Steivart v. Connick (1871), Ir. R. 5 C. L. 562; by a steward: Re Hawkins (1879), 28 W. R. 240. Conditional part-payment is sufficient to imply a promise, and hence the statute is excluded where a bill of exchange is given on account of the debt : Turney v. Dodu-ell (1854), 3 E. & B. 136. But giving a bill for the amount due does not operate as a promise to pay the original debt, if the debtor intends to limit his liability to the bill ; and if the bill has been released, no action will lie for the original debt, if then more than six years old : Foster v. Dawher (1851), 6 Ex. 839. The drawing by the debtor of a bill of exchange which is accepted by a third party is probably not- an acknowledgment so as to save the statute ; but if it is, it is evidence of a fresh promise at the time when it is drawn ; not when it is paid by the acceptor : Goican v. Forster (1832), 3 B. & Ad. 507. Similarly the giving of a cheque is evidence of a fresh promise at the time when the cheque is given, not when it is paid : Marrecco v. Richardson, [1908] 2. K. B. 584, C. A. Creditor must For a promise to be implied, the creditor must be aware of Payment by bill. CHAP. VII.] PART PAYMENT. 379 the payment. Hence where the debtor carries interest to the be aware of credit of the creditor in his books, this is no payment to P^^"^®" • exclude the statute : Jackson v. Oiig (1859), Johns. 397. (ii.) Proof of Payment. The Statute of Frauds Amendment Act, 1828, which pro- Part payment vides that acknowledgments must be in writing {^upra, p. 325), ffom^Loni expressly excepts the effect of payment : — Tenterdeu's "Provided always that nothing hei-ein contained shall alter, pq^q 4 c 14 or take away, or lessen the effect of any payment of any principal s. 1. or interest by any person whatsoever." Thus part payment is quite outside the Act, and the fact of iiuiorsement payment may be proved by evidence of a parol acknowledgment credttOT!^" ^ of payment on account of principal, or of payment of interest : Cleave v. Jones (1851), G Ex. 573; Edwarch v. Janes (1855), 1 K. & J. 534 ; but not by indorsement of payment by the creditor : — " No indorsement or memorandum of any payment, written Sect. 3. or made after [1st January, 1829], 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 statute 21 Jac. 1, c. 16]. For Ireland see ss. 24 and 25 of the Ir. C. L. P. A., 1853. Sect. 3 of Lord Teuterden's Act only applies to a memor- Entry by -^ ^^ creditiir 111 andum on the writing which contams the contract sued upon, his books. Hence payment can be proved after the death of the creditor by an entry made by him in his books, for at the time the entry was against his interest : Bradley v. James (1853), 13 C. B. 822. But it is otherwise if the entry is made after the statute has run, for it is then in the creditor's favour: Newbould v. Smith (1885), 29 C. D. 882, C. A.; see Brif/ys v. Wilson (1854), 5 J). M. & G. 12. And the provision only applies whore the memorandum is J"*^?'"f','"*'"* made by or on behalf of the creditor. An indorsement of pay- ment of interest on a promissory note by the debtor is admissible evidence : Pardon v. Pardon (1842), 10 M. & W. 502. 380 STOPPING THE STATUTE. [CHAP. VII. By the debtor or his aorent. Payment by married woman. By receiver. (iii.) By 7i-hom Payment may he made. In order that the necessary promise may be implied the payment must be by the debtor or by some person authorized to pay on his behalf. Where A. gave a promissory note to B., who indorsed it to his bankers and obtained on it from them money which he advanced to A., payments of interest by B. to the bank did not keep the note alive against A., B. not being the agent of A. for that purpose : Tlardinri v. Edgecumhe (1859), 28 L. J. Ex. 313. And an agent authorized to offer a sum in full discharge cannot bind the debtor by giving it in part pay- ment : Limdl V. Bonsor (1835), 2 Bing. N. C. 241. Where a note was signed by "J. H., churchwarden, and J. E., overseer, or others for the time being," the jury might properly infer that J. H. and J. E. had constituted the overseers for the time being their agents to make payments of interest : Jones v. Hughes (1850), 5 Ex. 104; Rew v. Pettett (1834), 1 A. & E. 19G. Under the Married Women's Property Act, 1882, a married woman can make a payment so as to bind her separate estate : Beck V. Pierce (1889), 23 Q. B. D. 31G, C. A. As to payment by a married woman under the old law : see Pittam v. Forster (1823), 1 B. & C. 248; Neve v. Holland (1852), 18 Q. B. 262. A receiver appointed by the mortgagee of a business, who under the terms of the power in the mortgage deed by virtue of which he is appointed is empowered to pay the business debts of the mortgagor, is the agent of the mortgagor for the purpose of making payments in respect of such debts, and this agency binds the mortgagor's estate after his death. Hence, though the receiver is not appointed till after the mortgagor's death, a payment by him will be treated as a payment by the agent of the executor and will keep alive the debt against the personal estate : Re Hale, [1899] 2 Ch. 107, C. A. And pay- ments on account of maintenance made by the receiver in lunacy of the estate of a pauper lunatic have been held to keep alive the claim of the guardians to the arrears of sums due for maintenance beyond six years: Wandsworth Union v. Worthington, [1906] 1 K. B. 420. But payments by a trustee under a creditors' deed on account of a debt do not imjDly any promise by the debtor that the balance is due and payable on demand, so as to exclude the statute as regards that debt: Ex j^arte Topinng (1865), 4 D. J. & S. 551. CHAP. Vir.] PART PAYMENT. 381 (iv.) To ivhom Payment may he made. Since payment only keeps alive a simple contract debt where To creditor a promise can be implied, it follows that the payment must be ^'^ ^'^ ^°^°*- made either to the creditor or his agent : Stamford, etc., Banldnq Co. V. Smith, [1892] 1 Q. B. 765, C. A.; though an exception is admitted where a payment is made for the benefit of the estate of a deceased person, and the payment is effectual if made to a person purporting to act on behalf of the estate, although not duly constituted administrator : S. C, explaining Clark v. Hooper (1834), 10 Bing. 480; ef. Bodyer v. Arch (1854), 10 Ex. 333. A payment made for the benefit of a creditor at his direction operates as a payment to him : Worthingtoii v. Grimsditch (1845), 7 Q. B. 479. "By agreement between the parties," said Den- man, CJ., in that case (p. 484), "the payment by the debtor of money owing by the creditor to a third person may be a mode of payment either of interest, or, in part, of the principal to the creditor; and such agreement, like any other, may be proved by implication, or course of dealing, or ratification, as well as by express and previous direction: " cf. Bodger v. Arch (1854), 10 Ex. 333. Payment can be effectually made to an agent of the creditor : Payment to see Evans v. Davies (1836), 4 A. & E. 840; and for this purpose '^^°^- a cestui que trust is usually the agent of the trustee : Meyginsoii V. Harper (1834), 2 Cr. & M. 322; see Gleadoa- v. Atkin (1833), 1 Cr. & M. 410. And, notwithstanding the Married Women's Property Act, 1882, it would seem that payment of interest to a husband on a debt due to his wife may still be regarded as pay- ment to her agent : see Hart v. Stephens (1845), 6 Q. B. 937. (v.) Effect of Payment. Since payment excludes the statute upon the ground of Co-debtors: implied promise, it follows that the action is kept alive only as ^'''■™®'' ^"^''• against the person by whom or by whose agent the payment has been made. Where there are several persons jointly liable for a simple contract debt, each was formerly regarded as agent of the rest for the purpose of making a payment on account of the debt, and hence from a payment by one there was implied a promise on the part of all so as to exclude the statute : U'hii- cjmb v. Whltiny (1781), Doug. 652; 1 Sm. L. C. 11th ed. 579; 382 STOPPING THE STATUTE. [CHAP. vir. Payment now effectual only ;is against co-debtor makinc; it. " By reason only of pay- ment." Right of contribution. Dowling v. Ford (1843), 11 M. & W. 329; provided it was clearly referable to the joint debt : Holme v. Green (1816), 1 Stark. 488. But the doctrine, it was said, ought not to be extended : Brand- ram V. Wharton (1818), 1 B. & A. 463, and it was not applied where the joint contract had been severed by death. Thus the executors of a deceased co-contractor were not bound by pay- ments made by the survivor : Atkins v. Tredf/old (1823), 2 B. & C. 23 ; and, on the other hand, payments made by the executors did not bind the survivor: Slater v. Laicson (1830), 1 B. & Ad. 396. And the doctrine did not apply where the liability was several, or joint and several : Ee Wolmcrshausen (1890), 62 L. T. 541. The doctrine of implied agency as between co-debtors was abolished by sect. 14 of the Mercantile Law Amendment Act, 1856 {supra, p. 373). That section provides that one of several co- contractors, or of the executors or administrators of a contractor, shall not lose the benefit of the Statute of James by reason only of payment by another co-contractor, or executor or adminis- trator. Consequently payment by a principal debtor does not keep alive the debt against the surety and rice versa : Re Wohners- hausen (1890), 62 L. T. 541. And it is the same where the simple contract debt is charged on land, since the personal remedy is subject to the six years' limitation : Bariies v. Glenton, [1899] 1 Q. B. 885, C. A. Sect. 14 of the Mercantile Law Amendment Act, 1856, pro- vides that one co-contractor shall not be chargeable by reason o)dt/ of payment by another co-contractor. Where a surety con- sented by letter that the receipt by the creditor of a dividend from the estate of the principal debtor should not prejudice the claim against himself, the case was not taken out of sect. 14. The receipt of the dividend was payment only, and the surety was entitled to the benefit of the statute : Cockrill v. Sparkes (1863), 1 H. & C. 699. And although one debtor pays with the consent of his co-debtor, this is still payment only, and the latter is not affected : Jackson v. Woolley (1858), 8 E. & B. 778, reversed in the Exchequer Chamber {ihid., p. 784), on the ground that sect. 14 was not retrospective. But sect. 14 only protects a co-contractor, B., from having his liability to the common creditor kept alive by payment by another co-contractor, A. It does not touch the question of the liability of the co-contractors inter se, and the right to CHAP. VII.] PART PAYMENT. 383 contribution which arises when A. has been compelled to pay more than his share ma}' be enforced against B. notwithstanding that the creditor's claim was kept alive against A. by payment, and that it is barred as against B. : Gardner v. Brooke, [1897] 2 I. E. 6, 20, C. A. Although the doctrine of implied agency as between co- Partuer. debtors is abolished, one may still be the actual agent of the other so as to bind him by payment. In the absence of evidence to the contrary one partner is presumed to be the agent of the other to make payments in respect of partnership debts : Good- icin V. Parton (1879), 41 L. T. 91 ; and though this agency is in general terminated by a dissolution of partnership {Watson v. Woodman (1875), 20 Eq. 721), it may, under special circum- stances, be treated as continuing ; where, for instance, the retirement of a partner is kept secret, and payments of interest are made in the name of the firm : lie TucJcer, [1894] 3 Ch. 429, C. A. ; cf. Braithivaite v. Britain (1886), 1 Keen, 206. Prior to the Mercantile Law Amendment Act, 1856, it was Co-cxccutur. the better opinion that a payment by an executor was not effectual to exclude the statute in an action against all, unless it had been made with the concurrence of all: Tidlock v. Dunn (1826), Ey. & M. 416 ; Scholeij v. Walton (1844), 12 M. & W. 510, 514. Under sect. 14 a payment by an executor does not impose any personal liability for the debt upon the co-executors, but it binds the estate and enables the debt to be recovered out of the estate even after the death of the executor who made the payment : Re Macdonald, [1897] 2 Ch. 181. Where a payment is made by a person who fills two Persou filling different characters, it is a question of fact in which character ^jf^racters. he makes it. The question arises where one of two persons jointly liable dies, having appointed the other his executor. In Atkins v. Tredgold (1823), 2 B. & C. 23, A. and B. were liable on a joint and several promissory note, and A. died, having appointed B. one of his executors. Interest was paid by B., and it was left to the jury to determine in what character he paid it. They found that he paid it in pursuance of his own lialjility, and not as executor of A. So where a surviving partner, who is executor of a deceased partner, makes payments which, as surviving partner, he is bound to make, these will usually be taken to have been made by him personally, and not as executor: Way \. Bassctt (1845), 5 Hare, 55; Thompson \. 384 STOPPING THE STATUTE. [CHAP. vn. Real and personal estate of de Waithman (1856), 3 Drew. 628, especially if the payments appear in the accounts of the business, and not of the executors : Broivn V. Gordon (1852), 16 Beav. 302. In these cases there is origi- nally a double liability, and the surviving joint debtor, in making a payment, is presumed to be discharging his own liability. The question may also arise where, upon the death of a sole debtor, the debt is recoverable against assets which are held by the same person in different rights; where, for instance, the person who makes the payment is executor and also beneficial devisee of real estate. In such a case the payment will not be attributed to his character of executor only, since the moral obhgation to discharge the debt attaches to him equally as devisee : Fordham v. WaUis (1853), 10 Hare, 217, p. 225 ; cf. Shea V. Moore, [1894] 1 I. E. p. 171, C. A. It has been seen (supra, p. 373) that, subject as to debts not charged on land to sect. 14 of the Merc. Law Amend. Act, 1856, ceased debtor, payment in respect of a specialty debt by any one of the persons interested in the real estate of a testator, or by the personal repre- sentatives, keeps the remedies for the debt alive against all the assets, real and personal. The result depends upon the statutory provisions relating to payment. Under the statutes payment by any person entitled to make it removes the statutory bar and sets free the action generally. The effect of payment in respect of a simple contract debt depends upon quite different considera- tions. It excludes the statute only so far as it implies a promise, and hence it excludes it only as against persons by whom such promise is impliedly made. In general this means that it is only the person making the payment who loses the benefit of the statute. Consequently, where a debtor has died, a payment by his legal personal representatives does not save the statute as regards persons beneficially interested in the real estate : Putnam v. Bates (1826), 3 Russ. 188 ; Fordham v. Wallis (1852), 10 Hare, 217; and, conversely, payment by a devisee raises no implication of a promise to pay on the part of the executor, and does not keep the statute alive against the personal estate : Boatwright v. Boatwrif/ht (1873), 17 Eq. 71. Brocklehurst v. Jessoj) (1835), 7 Sim. 438, is not to be accepted as an authority to the contrary : see White v. Hillacre (1839), 3 Y. & C. Ex. p. 607; FordJiam v. Wallis (supra). In Fordham v. Wallis a testator who died in 1843 was indebted in the sum of £2000 on a promissory note dated Fordham v Wallis. CHAP. VII.] PART PAYMENT. 385 November 14, 1826. By his will be devised the X estate to Wallis, Cbapman, and Nash in trust for Sarah Wedd for life with remainders over ; he appointed Wallis, Chapman, and Nash his executors ; he devised to Wallis and Chapman respectively certain interests in real estate, and he bequeathed to Wallis one-half of the residue of his personal estate. Interest on the £2000 was paid by the agents of the executors in 1848, 1846, and 1847, and a suit for administration of the real and personal estate was commenced in 1849. It was held by Turner, V.C, (1) that no distinction could be drawn between the two characters of executors and beneficial devisees which Wallis and Chapman filled (vide supra, p. 384), and that the payments by them kept the debt alive against their interests in the real estate ; (2) that as regards the characters of Wallis, Chapman, and Nash as devisees in trust and as executors, the payments were made by them as executors ; and (3) that pay- ments made by them as executors did not bind Sarah Wedd and persons other than themselves beneficially interested in the real estate. Upon the third point the Vice- Chancellor said : " Apart Irom purely legal considerations, it cannot, I think, be doubted that it ought not to be in the power of any person by his admission to revive a right against another, which, but for that admission, would have been wholly extinguished. . . . But then it is said that this principle ought not to have been applied to cases such as Putnam v. Bates and the present case ; that the liability of the real estate was so connected with the liability of the personal estate as to preclude the application of the principle ; but I think that what we have to consider in these cases is the act of the person, and not the position of the estate ; for the existence or non-existence of the demand depends upon the act of the person, and not upon the relative liability of the property." The restriction, in the case of simple contract debts, of the effect of payment to the person making it is an obvious result of the doctrine that payment operates by way of implied promise ; and though, perhaps, this is not expressly stated in the passage just quoted, yet it was recognized in Iloddmu v. Murlri/ (1857), 1 De G. & J. p. 15, that Pufniiui v. J!<'i' Buckley, J., in Tlarrington v. Gorjyoration of Derby, [1905] 1 Ch. 205 ; see I fag tie v. Doneaster Rural Dist. Council (1908), Times, Dec. 2. Cases of continuance of damage following upon a single act occur when from a completed excavation there follows a con- tinuing subsidence: Crumbie v. Wallseiid Local Board, [1891] 1 Q. B. 503, C. A. ; or where cracks in the walls of a house get continuously worse : Fairhrother v. Bury Rural Sanitary A nthority (1889), 37 W. K. 544. Cases of repeated acts, accompanied by continuously recurring damage, occur where a wrongful 400 PUBLIC AUTHOKITIES. [CHAP. VIII. Six months' limitation overrides otiier special limitation. Local and personal Acts. obstruction of a road {Wilkes v. Hungerford Market Co. (1835), 2 Bing. N. C. 281), or a pollution of a river {Harriiifitoti v. Corporation of Dcrhij (supra, p. 399)), is continued from day to day; see Kennet and Avon Canal Co. v. Great Western llailicay Co. (1845), 7 Q. B. 824. Wrongful imprisonment lias been treated on this footing, each day being regarded as forming a new imprisonment : Baileij v. Warden (1815), 4 M. & S. 400 ; Hardij v. Ryle (1829), 9 B. & C. 603. But there is no continuance of damage where the injury takes place at successive intervals, although the cause of injury is continuing : Blakemore v. Glamorganshire Canal Co. (1829), 3 Y. & J. 60. In English v. Metrop. Water Board (1907), 71 J. P. 313, the question of continuance of injury was not considered : see 5 L. G. E. p. 394, note. In cases of continuance of damage, damages were formerly recoverable for six months (or other the time specially limited) before the action, unless the statute made the period of limitation run, in case of continuance of damage, from its cessation. Under the P. A. P. A., 1893, the six months runs from the cessa- tion of the damage, and if the action is brought within that time, the ordinary period of limitation applies, and damages are recoverable for six years before the action : Harrington v. Cor- poration of Derby, [1905] 1 Ch. 205. The six months' limitation under the Act of 1893 applies also in favour of public authorities in cases where the action is otherwise subject to a special limitation. Thus in a case under the Fatal Accidents Act, 1846, which requires the action to be commenced within twelve months after the death of the deceased, this period is reduced to six months : Marhcy v. Tolicorth Joint Hospital Board, [1900] 2 Q. B. 454. There is no continuous damage after his death of which his widow can take advantage. And since she can only maintain an action which the deceased could have maintained, she is barred if more than six months have elapsed between the accident and the death : Williams v. Mersey Docks, etc., Board, [1905] 1 K. B. 804, C. A. The statute is not impliedly repealed by the Locomotives Act, 1898, which provides a limitation of twelve months in an action by a high- way authority to recover extraordinary expenses : Kent County Council V. Folkestone Corporation, [1905] 1 K. B. 620, C. A. Protection similar to that provided by public general Acts previously to the P. A. P. A., 1893, was conferred by many local and personal Acts, such as railway, canal, and town CHAP. YIII.] PEEIOD OF LIMITATION. 401 improvement Acts. The provisions of these Acts were so various that it was found necessar}' to replace them by uniform rules. This was done by the Limitation of Actions and Costs Act, 1842 (5 & 6 Vict. c. 97), which, as regards limitation, intro- duced for local and personal Acts a uniform period of two years, or, in case of continuing damage, one year from its cessation : sect. 5. The Act was confined in its operation to statutes then existing : Bodcn v. Smith (1849), 11 L. J. C. P. 121 ; but since that date the practice of introducing provisions of this kind appears to have considerably diminished. Before the introduction of the present system of printing public general Acts and local and personal Acts separately, there was no clear distinction between these classes of statutes. An Act establishing a local court was held to be a local Act : Cock v. Gent (1848), 12 M. & W. 234 ; and also an Act for establishing a harbour : Moore v. Shepherd (1854), 10 Ex. 424, affirmed as Shepherd v. Sharp (1856), 1 H. & N. 115. The Metropolitan Police Acts were public general Acts : Barnett v. Cox (1847), 9 Q. B. 617; but see Moore v. Shepherd. Sect. 2 of the Act of 1893 repealed so much of any public Kepeal of general Act as provided, in any proceeding to which the Act of f^meJ pubUc 1898 applied, for, inter alia, a special limitation ; and in par- Acts as re- ticular the sections of sta.tutes mentioned in the schedule were to ceediDgs this extent repealed. The schedule enumerates some 108 statutes. ^'^^^'V. » ^ . P. A. P. A., Sects. 8 (limitation) and 9 (notice of action) of the Justices i893. Protection Act, 1848, were omitted, but they were repealed by the Statute Law Pievision Act, 1894. Other omissions were : the Habitual Drunkards Act, 1879, with its limitation of two years ; the Army Act, 1881, with its limitation of one year (sect. 170) ; and the Submarine Telegraph Act, 1885, with the like limitation. The Army Annual Act, 1894, substituted a six months' limi- tation, and this subsists as an independent enactment ; but the relevant parts of the other statutes just mentioned, and also any other omitted sections of public general Acts, are repealed to the extent indicated — that is, so far as they relate to pro- ceedings to which the P. A. P. A., 1898, applies. In Bryson v. Russell (1884), 14 Q. B. D. 720, C. A., it was held that constables were not entitled to protection in regard to acts done in pur- suance of statutes subsequent to 1 & 2 Will. 4, c. 41 ; and in Graham v. Mayor of Newcastle, [1898] 1 Q. B. 648, C. A., the three months' limitation in favour of surveyors of highways under the Highway Act, 1885, was held to apply to urban T.L.A. 2 D 402 PUBLIC AUTHOKITIES. [CHAP. VIII. Scope of P. A. P. A., 1893. How far limitations under local and personal Acts retained. authorities who had been constituted surveyors of highways under the Public Health Act, 1875, s. 144. Both these decisions are rendered obsolete by the P. A. P. A., 1893. Speaking generally, sect. 1 of the Act of 1898 covers the same ground as the previous public general statutes which con- ferred protection in respect of acts done in pursuance of them, and the repeal of this earlier protection is practically complete. But there is a tendency to confine the Act of 1893 to public authorities and their servants, whereas under the earlier statutes — such as the Game Act, 1831, and the Larceny Act, 1861 — private individuals purporting to exercise powers were entitled to protection ; sniJra, p. 391. If these individuals are excluded from the Act of 1893, then the earlier statutes are kept alive for their benefit. In addition to the possible variation in the period of limitation, this would have the important result that notice of action would be necessary. Where, however, an individual is performing a statutory duty, the P. A. P. A., 1893, applies: Salishurij v. Gould (1049), 68 J. P. 158 (supra, p. 390). Sect. 1 of the Act of 1893 makes no distinction between public general statutes and local and personal statutes, and it would apply to acts done by a public authority in pursuance of a statute of the latter class. But local and personal statutes are usually obtained in the interest of commercial undertakings, and since the Act of 1893 does not apply to commercial com- panies (supra, p. 391), such statutes would seem to be but little affected by the Act. A public authority, however, of a non- commercial nature, if acting under a local statute, would be entitled to the benefit of sect. 1, and the two years' limitation for local and personal Acts passed prior to 1842 would be reduced to six months. The two years' limitation, though applying to local and personal statutes, is contained in a public general statute — the Act of 1842, s. 5 — and, so far as regards actions falling within sect. 1, it is repealed by the general provision of sect. 2 of the P. A. P. A., 1893, notwithstanding that the schedule only specifically repeals the section of the Act of 1842— sect. 2 — relating to costs. Defendants, who are entitled to the benefit of the statute, do not forfeit the right to plead it merely because they have negoti- ated with the plaintiff, and his claim has been thereby delayed : Hewlett V. Lo)2don Count}) Council (1908), 72 J. P. 136. Hence a claimant who is negotiating should nevertheless issue a writ. CHAPTER IX. CRIMINAL AND CROWN PROCEEDINGS AND PROCEEDINGS BEFORE JUSTICES. Section I. — Criminal Proceedings. Apart from statute there is no limitation upon the time Limitations. within which criminal proceedings can be commenced : Reg. v. Hull (1860), 2 F. & F. 16, per Pollock, C.B., Dover y. Maester (1803), 5 Esp. 92. As regards the following offences a statutory time limit exists ; — Offence. High treason (except attempting the assas- sination of the King, or treason committed on the high seas, or in a foreign country) Time Limit. Treason felonv bv words The Treason Felony Act. spoken ' " 1848 (11 Vict. c. 12), ; s. 4 grand jury within three years next after the offence com- mitted The Treason Act, 1695 Indictment must be found by the (7 & 8 Will. 3. c. 3), ■ s. 5 Scotland: The Treason Act, 1708 (7 Anne, c. 21) (see Foster, C.C. 249) Ireland : The Treason (Ireland) Act, 1821 (1 & 2 Geo. 4, c. 24) Blasphemous libels 9 & 10 Will. 3, c. 32 (9 Will. 3. c. 35, in Re- vised Edition), s. 2 Rioters remaining after i 1 Geo. 1, st. 2, c. 5, s. 8 proclamation Information on oath, within six days after words spoken ; and warrant issued within ten days after information No prosecution under the Act for words spoken unless information given before justices within four days after words spoken, and prosecution within three months after information Prosecutiou for an offence must be connaenced within twelve months after the offence com- mitted 404 CRIMINAL AND CROWN PROCEEDINGS, ETC. [CHAP. IX. Assisting prisoners to escape Unlawful training to arms Night poaching Counterfeiting marks trade- Offence against girl be- tween 13 and 16 Offence under the Muni- cipal Corporations Act, 1882 Offence in respect of registration of births and deaths Customs offences Offence against Post Post OflBce Act, 1908, s. OflBce 70 16 Geo. 2, c. 31, s. 4 The Unlawful Drilling Act, 1819 (60 Geo. 3, and 1 Geo. 4, c. 1), s. 7 The Night Poaching Act, 1828 (9 Geo. 4, c. 69), s. 4 The Night Poaching Act. 1844 (7 & 8 Vict. c. 29) Merchandise Marks Act, 1887 (50 & 51 Vict, c. 28), s. 15. Births and Deaths Regis- tration Act, 1874 (37 & 38 Vict. c. 88), s. 46 Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36), s. 257 Crimmal Law Amend- ment Act, 1885 (48 et 49 Vict. c. 69), s. 5 Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), sect. 219 Time Limit. Prosecution must be commenced within one year after the offence committed Prosecution to be commenced within six calendar months after the offence committed Prosecution (otherwise than by summary proceedings) to be commenced within twelve calendar months after the com- mission of the offence Action or proceeding for recover- ing penalty, or for procuring conviction of offender, not to be couunenced after three years after commission of offence, or one year after discovery thereof by party proceeding Prosecution on indictment must be commenced within three years after the commission of the offence Suits, indictments, or informa- tions in any Court or before any justice to be brought or ex- hibited within three years after the offence committed. This provision, like that of the Con- solidation Act of 1853 (16 & 17 Vict. c. 107), s. 303, is more general than the previous en- actments in 3 & 4 Will. 4, c. 3, s. 120, and 8 & 9 Vict, c 87, s 134, and Req. v. Thompson (1851), 16 Q. B. 832, where it was held that an indictment at Assizes was excluded, is not now applicable Prosecution not to be commenced more than three months after the commission of the offence In summary proceedings for offences and fines the informa- tion must be laid within six months after the commission of the offence. Fines not recover- able summarily are recoverable by action in the High Court Proceeding in High Court for fine or forfeiture to be com- menced within one year after offence CHAP. IX.] CRIMINAL PROCEEDINGS. 405 Offence. Statute. Corrupt or illegal prac- Corrupt and Illegal tice — . Practices Prevention I. At Parliamentary Act, 1883 (46 & 47 elections Vict. c. 51), s. 51 Time Limit. II. At local govern- ment elections — Boroughs County Councils District and Parish Councils City of London Municipal Elections (Corrupt and Illegal Practices) Act. 1884 (47 & 48 Vict. c. 70), s. 30 : extended to County Councils by the Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 75; and to District and Parish Councils by the Local Government Act, 1894 (56 & 57 Vict. c. 73), s. 48 The Act of 1884, s. 35 Parliamentarv election Parliamentary Election petition " Act, 1868 "(31 & 32 Vict. c. 125), s. 6 I Corrupt and Illegal Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), s. 40 Proceeding to be commenced within one year after offence committed, or, if an election inquiry held, within one year after offence committed, or within three mouths after re- port, whichever period last ex- pires : with a maximum of two years after the offence com- mitted. This applies also to proceedings under the Summary Jurisdiction Acts. The issue of the smnmons or other process is the commencement of the proceeding where service is evaded ; otherwise the service is the commencement Same limitation as under the Corrupt and Illegal Practices Prevention Act. 1883 Petition to be presented within twenty-one days after the re- turn, to the proper officer — clerk of the Crown in England, clerk of the Crown and Hanaper in Ireland — of the member to whose election the petition re- lates. But where the petition is based on an allegation of an illegal practice, the petition, so far as respects such illegal practice, may be presented, (a) at any time before the expira- tion of fourteen days after the receipt by the returning officer of the statement of election expenses; (6) if a payment of . money or other act subsequent to such return is specitically alleged, then at anytime within twenty-eiglit days after such payment or act The "return in the Clerk of the Crown means the receipt by him of the petition within business hours : Hurdle v. IFiar- 1H7(1S74), L. R. II C. P. 435 406 CRIMINAL AND CROWN PROCEEDINGS, ETC. [CHAP. IX. Offence. Statute. Local government elec- tion petitions — Boroughs County Councils District and Parish Councils City of London Time Limit. Municipal Corporations Act. 1882 (45 & 46 Vict. c. 50), 8S. 73, 88 : extended to County Councils hy the Local Government Act, 1888 (51 & 52 Vict. c. 41), s. 75 ; to District and Parish Councils by the Local Government Act, 1894 (56 «& 57 Vict. c. 78), 8. 48 ; to the City of Londnn by the Municipal Elec- tions (Corrupt and Illegal Practices) Act, 1884 (47 & 48 Vict. c. 70), s. 35 Petition to be presented within twenty-one days after the day of election ; but if founded on corrupt practices, with specific allegation of payment of money or other reward made or pro- mised since the election, within twenty-one days after the date of the alleged payment or pro- mise. But an election is valid unless questioned within twelve mouths, though this does not exempt from liability to penal- ties for acting -without quali- fication : Be Soma v. Cobden, [1891] 1 Q. B. 687 Commence- ment of prosecution. Criminal information. Under statutes which require the prosecution to be com- menced within the time limited, the statute is checked when the information is Laid before a magistrate and the warrant issued : E. V. WlUace (1797), 1 East, P. C. 186; B. v. Brooks (1847), 2 C. & K 402; 1 Den. 217 ; R. v. Austin. (1845), 1 C. & K. 621. But the information must be given in evidence. In the absence of this, the warrant is not evidence that the jDroceedings have been commenced within the time limited : B. v. Parker (1864), Leigh & C. 459 ; 33 L. J. M. C. 135 ; cf. B. v. PhilUps (1818)i E. & R. C. C. R. 369. And the information only stops the statute for the purpose of proceedings in respect of the offence alleged in it : B. v. Casholt (1869), 11 Cox, 385. If an indict- ment is preferred in time and is ignored, a further indictment cannot be preferred after the time for the same offence. In B. v. Killminster (1835), 7 C. & P. 228, this appears to have been doubted. If the first warrant is not executed, and a subsequent warrant for the same offence is issued after the statutory period, an indictment founded on the second warrant is too late : B. v. Hull (1860), 2 F. & F. 16. A criminal information lies for misdemeanors only, and only in gross cases ; and, in a case of libel, only at the suit of persons in a public office or position : Bcr/. v. Labouchere (1884), 12 Q. B. D. 320 ; it lies against a magistrate for any illegal act committed by him from corrupt or vindictive motives. It must be applied for "within a reasonable time after the offence CHAP. IX.] CROWX PROCEEDINGS. 407 complained of" : Crown Office Eules, 1906, r. 37. This rule is in accordance with the former practice. In cases against magis- trates, it was held that, if the offence complained of took place in vacation, the application must be made in the next term : R. V. Harries (1811), 13 East, 270; R. v. Bishop (1822), 5 B, & A. 612 ; if in term time, then either in that term or the next : R. v. Smith (1796), 7 T. E. 80; R. v. Marshall (1811), 13 East, 322. As to other persons, see R. v. Robinson (1764), 1 W. Bl. p. 542 ; R. V. JoUie (1833), 1 B. & Ad. 867 ; R. v. O'Meara (1823), 4 B. & Ad. 869 n. ; R. v. Satirist (1834), 3 N. & M. 532. The present rule operates in effect in the same way, notwithstand- ing the abolition of terms by the Judicature Act, 1873 (36 & 37 Yict. c. 66), s. 26 : College of Christ v. Martin (1877), 3 Q. B. D. 16 ; see R. v. Hartley (1825), 4 B. & Ad. 869 n. ; but a criminal information against a magistrate or other person for any act done in the execution of a public office is also subject to a six months' limitation under the Public Authorities Protection Act, 1893 : sujmc, p. 395. Section II. — Crown Proceedings. An information in the nature of a writ of quo warranto is the Quo imrranto, modern substitute for the writ of quo warranto. Originally twenty years was the limit beyond which the Court would not disturb the peaceable possession of a franchise : Winchclsea Causes (1766), 4 Burr. 1962. The effort in R. v. Wardroper (1767), 4 Burr. 2024, to reduce this to six years failed. But as regards municipal offices the statute 32 Geo. 3, c. 58, introduced a limitation of six years reckoned from the unlawful assumption of the corporate office. Under sect. 1 the defendant might plead that he had held the office for six years before the ex- hibiting of the information, and the plea, if j)roved, was valid 5 but sect. 2 allowed the prosecutor to reply any forfeiture, surrender, or avoidance by the defendant of his office or franchise within the six years. The six years was reckoned before the filing of the information, and hence the rule absolute for the information must have been obtained in time for the information to ])e filed within the six years : Re;/, v. Harris (1840), 5 A. & E. 518 ; sec R. v. Stokes (1813), 2 M. & S. 71. A shorter limitation in respect of municipal ofTfices was Municipal ollice. limitation. 408 CRIMINAL AND CROWN PROCEEDINGS, ETC. [CHAP. IX. introduced by the Municipal Corporations Act, 1837 (1 Vict. c. 78), s. 23, and is now contained in the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50). Sect. 225 provides that an applica- tion for an information in the nature of quo ivarranto against any person holding a corporate office shall not be made after the expiration of twelve months from the time when he became disquahfied after election. For disqualification at election the procedure is by election petition : supra, p. 406. The dis- qualification arising under sect. 12 from interest under a contract with the corporation arises de die in diem, and the twelve months runs from the end of the contract : Reg. v. Francis (1852), 18 Q. B. 526. Where the disqualification arises from ceasing to occupy the qualifying premises, so that the councillor is no longer entitled to be on the burgess list, the twelve months runs from the date of the ceasing to occupy, and not from his being struck off the list : Ex parte Birkhech (1874), L. K. 9 Q. B. 256. Six years' 111 consequence of sect. 225 of the Municipal Corporations Act, 1882, the limitation of 32 Geo. 3, c. 58, became unnecessary, and the statute was repealed by the Act of 1882 as to boroughs within that Act (Sched. I, Part II.), and by the Statute Law Eevision Act, 1887 (50 & 51 Vict. c. 59), it was repealed altogether. The limitation of the statute 32 Geo. 3, c. 58, was also applied by way of analogy to informations quo warranto other than those in respect of a municipal office ; see Reg. v. Harris (1840), 11 A. & E. 518, where it was applied to the franchise of free mines in Cornwall : Short and Mellor's Crown Office Practice, 2nd. ed. p. 183 ; and the plea of the six years' limitation is applicable generally to informations quo warranto. This is recognized by rule 124 of the Crown Office Rules, 1906, which, as under the statute, allows the prosecutor to reply any forfeiture, surrender, or avoidance by the defendant within the six years. Moreover the Court, in the exercise of its discretion, may impose a further limit ; or, at least, lapse of time short of the six years may be a ground for refusing the rule for an information : see R. v. Warrhojjer (1767), 4 Burr. 2024. And in general, in the case of an annual office, on which no title to any other depends, the rule will not be granted if it cannot result in a judgment within the year : Reg. v. Hudson (1842), 4 Q. B. 648, n. (b) ; Reg. v. Anderson (1842), 2 G. & D. 113 ; but see Reg. v. Francis (1852), 18 Q. B. 526. CHAP. IX.] CROWN PROCEEDINGS. 409 A writ of certiorari to remove an order made by justices, or Certiorari. by general ov quarter sessions, must be applied for within six calendar months after the order : Crown Office Rules, 1906, r. 21. This rule re-enacts the rule of 13 Geo. 2, c. 18, s. 5, which was repealed by 51 Vict. c. 3 : see R. v. Bougheij (1791), 4 T. R. 281 ; R. v. Bloxam (1834), 1 A. & E. 386. In case of an appeal to sessions and a confirmation of the order, the six months runs from the confirmation : Re Kaye (1822), 1 D. & E,. 436; R. V. Justices of Middlesex (1836), 5 A. & E. 626; see Elliott V. Thompson (1875), 33 L. T. 339. Where sessions confirm the order subject to a case, and the case is abandoned, the order becomes final at the end of six months from the confirmation, and cannot be again confirmed with a variation by a subsequent sessions : Reg. v. Justices of Staffs (1857), 7 E. & B. 935. Where an order is made at sessions subject to a case, the six months runs from the order notwithstanding delay in settling the case : R. v. Justices of Sussex (1813), 1 M. & S. 631, 734; R. v. Bloxam (1834), 1 A. & E. 386; Elliott V. Thompson (1875), 33 L. T. 339. Under the statute there was no power to enlarge the time : R. v. Bloxam ; though in case of delay the Court would grant a mandamus to enter continuances and hear the appeal : R. v. Justices of Suffolk (1832), 1 D. P. C. 163. But now the Court or a judge has power to enlarge the time : C. 0. R., 1906, r. 259 ; R. S. C, 1883, Ord. 64, r. 7. A special case stated by general or quarter sessions for obtaining the judgment of the High Court on an order at sessions cannot be filed after the expiration of six calendar months from the making of the order, except by leave of the Court on special circumstances shown before or after the expiration of such six months : C. 0. R., 1906, r. 25. The application for a certiorari will bo in time if the affidavits '^i'^? °^. '- ^ application. are left at chambers withm the six months, although, by reason of the non-attendance of the judge, it is not in fact made till later : Reg. v. Allan (1864), 4 B. & S. 915 ; see R. v. Inhahitants of Abergele (1836), 5 A. & E. p. 796, n. (a); Reg. v. ,S7. Manj, Whitechapel (1843), 2 Dowl. N. S. 964 ; C. 0. R., 1906, r. 20. Where the judge indorsed the summons, " No order, without prejudice to any application to the Court," a subsequent application was an inde[)endent proceeding, and was out of time when made after the six months, although the application to the judge was made within the six months : R. v. Ifodson (1863), 410 ORBIINAL AND CROWN PROCEEDINGS, ETC. [CHAP. IX. 9 L. T. 290. If the certiorari is granted on insufficient affidavits, the writ cannot be supported by affidavits filed after the six months : Beg. v. Inhahitants of Gilberdyke (1843), 5 Q. B. 207 ; see Reg. v. Inhahitants of Cartirorth (1843), 5 Q. B. 201 ; nor can a new writ be then moved for : Beg. v. Inhahitants of Cartivorth (1844), 8 Jur. 61 ; unless, of course, the time is extended. But an irregularity not affecting the application can be cured after the time : B. v. Inhahitants of Abergele (1836), 5 A. & E. 795. P. A. P. A., Apparently the six months' limitation of C. 0. E., 1906, 1893 ^ J. u 7 J r. 21, does not apply to a certiorari to remove an indictment found at quarter sessions : B. v. Battams (1801), 1 East, 298 ; nor does it bind the Crown : S. C. p. 303, n. (rf). And as to other cases of certiorari than the removal of orders of justices there was, until the Public Authorities Protection Act, 1893, no general rule of practice requiring the application to be made within six months. The Court judged of the reasonableness of the application, looking at the circumstances of the particular case : Beg. v. Mayor of Sheffield (1871), L. E. 6 Q. B. 652; see Beg. V. Commissioners of Sewers for the Tower Hamlets (1843), 5 Q. B. 357. But an application for a certiorari appears to be a proceeding for an act done in execution of a public office, and is subject to the six months' limitation of the P. A. P. A., 1893 : supra, p. 395. Other liraita- In addition to the foregoing limitations, certain proceedings ^ceHiomri ^^^ certiorari are specially limited. Thus a certiorari in respect of the determination of boundaries of parishes and manors by the Inclosure Commissioners (now the Board of Agriculture and Fisheries), under the Inclosure Act, 1845 (8 & 9 Vict. c. 118), must be applied for within six months after the publication of the boundaries (sects. 39, 44) ; and a certiorari in respect of an order, rule, or regulation of the Poor Law Commissioners or the Poor Law Board (now the Local Government Board : 34 & 35 Vict. c. 70, s. 2) must, under the Poor Law Amendment Act, 1849 (12 & 13 Vict. c. 103), s. 13, be applied for within twelve months after the day when a copy is sent as required by statute. Under E. S. C, 1883, Ord. 64, r. 14, an application to set aside an award may be made at any time before the last day of the sittings next after the award has been made and published to the parties, though the time can be extended under rule 7 : Be Oliver & Scotfs Arbitration (1889), 43 C. D. 310. CHAP. IX.] CROWX PROCEEDINGS. 411 The limitation applies to an award under the Lands Clauses Act, 1845: Re Harper (1875), 20 Eq. 39; and the same limit is imposed on certiorari to bring up the verdict of a jury: B.. v. Sheivard (1880), 9 Q. B. D. 741, C. A. Under the Valuation of Property (.Metropolis) Act, 1869 (32 & 33 Vict. c. 67), s. 40, a certiorari for questioning a decision of justices in assessment sessions had to be sued out within three mouths of the decision. Possibly this is now extended to six months by C. 0. Pv., 1906, r. 21. There is no general statutory limitation upon an application Mandamus, for a mandamus, but the Court will not entertain it unless it is brought within a reasonable time. In 11. v. Stainforth and Keadhy Canal Co. (1813), 1 M. & S. 32, an application in 1813 to compel a canal company to proceed to assessment of lands taken in 1799 was too late ; in R. v. Cockermouth Inclosure Com- missioners (1830), 1 B. & Ad. 376, a like result attended an application in 1829 to compel inclosure commissioners to amend allotments set out in 1817. In Reg. v. Leeds and Liverpool Canal Co. (1840), 11 A. & E. 316, an application to compel the com- pany to enrol contracts for the purchase of land was refused after the company had been in possession of the lands for 65 years. But a mandamus to compel the holding of a local court has been granted after 200 years : R. v. Corporation of Wells (1836), 4 Dowl. 562. A mandamus for the correction of parish burgess lists under the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), must be applied for within two months after the last sitting of the Revision Court : sect. 47. An application for a writ of mandamus to justices to enter continuances and hear an appeal must be made within two calendar months after the first day of the sessions at which the refusal to hear took place, unless further time is allowed by the Court or a judge, or unless special circumstances appear by affidavit to account for the delay to the satisfaction of the Court : C. 0. P., 1906, r. 68. As to mandamus to a local authority to levy a rate, see Lumley's Public Health, 7th ed. p. 482. The times fixed by the C. 0. R, 1906, may be enlarged or abridged by the Court or a judge upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered, although the application for the same is not made until after the expiration of the time appointed or allowed : R. S. C, 1883, Ord. 64, r. 7 ; C. O. R., 1906, r. 259. 412 CRIMINAL AND CROWN PROCEEDINGS, ETC. [CHAP. IX. Cruelty to animals. Oflence under Municipal ( 'orporations Act, 1882. jNIerchant Sliippiug Act, 189i. Factories. Section III. — Proceedings befoee Magistrates. In certain cases the time within which proceedings can be taken before justices is specially limited : — A complaint under the Cruelty to Animals Act, 1849 (12 & 13 Vict. c. 92) must be made " within one calendar month after the cause of complaint has arisen " : sect. 14. This period is exclusive of the day on which the offence is committed, and hence an information laid on 30th June in respect of an act committed on May 30 was in time : Iladdiffc v. Bartholomew, [1892] 1 Q. B. 161 ; (/. Hardy v. Bi/lc (1829), 9 B. & C. 603 ; WiUiams v. Burgess (1840), 12 A. & E. 635. In summary proceedings for offences and fines under the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), the information must be laid within six months after the commis- sion of the offence. Fines not recoverable summarily may be recovered by action in the High Court : sect. 219. A summary proceeding to obtain a conviction or an order for payment of money under the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), must be commenced within six months after the commission of the offence or after the cause of com- plaint arises, as the case may be ; or, if both or either of the parties to the proceeding happen during that time to be out of the United Kingdom, in the case of a summary conviction within two months, and in the case of a summary order within six months, after they both first happen to arrive, or to be at one time, within the United Kingdom : sect. 683 (1). This provision excludes other limitations on summary proceedings, except proceedings to which the Public Authorities Protection Act, 1893, applies : sect. 683 (3), (4). In the case of summary proceedings for offences and fines under the Factory and Workshop Act, 1901 (1 Edw. 7, c. 22), sect. 146 provides that the information must be laid within three months after the date at which the oflence comes to the knowledge of the inspector for the district within which the offence is charged to have been committed ; or, in case of an inquest being held in relation to the offence, then within two months after the conclusion of the inquest, so, however, that it be not laid after the expiration of six months from the commis- sion of the offence. Under sect. 135 it is an offence punishable CHAP. IX.] PROCEEDINGS BEFORE MAGISTRATES. 413 by fine if the provisions as to the fencing of machinery in a factory are not observed ; and under sect. 136 the occupier of a factory is liable to a fine if any person suffers bodily injury in consequence of the occupier having neglected to observe any provision of the Act. These sections create distinct offences, and time runs against a summons under sect. 136 from the time of the injury coming to the knowledge of the inspector, not from the time of the fact of the machinery being unfenced coming to his knowledge : 11. v. Taijlor, [1908] 2 K. B. 237. Where no time is specially limited, summary proceedings General si.x before justices are subject, in England to a six months' limita- umita^'on. tion under the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), s. 11 ; and in Ireland to the same limitation under the Petty Sessions (Ireland) Act, 1851 (14 & 15 Vict. c. 93), s. 10 (4), except as in the section mentioned ; that is, except proceedings for rates and taxes, as to which no limit is imposed ; claims for wages, hire, or tuition, as to which the period is one year ; and claims in respect of trespass, as to which it is two months. The English Act apphes where an information is laid before a justice that a person has committed an offence within his jurisdiction for which he is liable to summary con- viction ; or where complaint is made to a justice upon which he has authority to make an order for the payment of money or otherwise ; and it enacts as follows : — " In all cases where no time is already or shall hereafter be Summary specially limited for making any such complaint or laying any Act'^ms*'^ such information in the Act or Acts of Parliament relating to s. 11. each particular case, such complaint shall be made and such information laid within six calendar months from the time when the matter of such complaint or information respectively arose." This limitation does not apply to proceedings for enforcing a rate by the mere issue of a warrant of distress, since this involves no order for the payment of money : Sicc('t)iia)i v. Giwst (1868), L. Pi, 3 Q. B. 262; nor to cases of continuing liability, as maintenance cases : Ulvcrstone Guardians v. l*arh (1889), 53 J. P. 629; cf. Wcstropj) v. Puhlic Works Commkswm'rs, [1896] 2 I. E. 93, on the limitation in the Fisheries (Ireland) Act, 1850 (13 & 14 Vict. c. 88). 414 CKIMINAL AND CEOWN PROCEEDINGS, ETC. [CHAP. IX. Improvement Expenses. Expenses of Under the Public Health Act, 1875 (38 & 39 Vict. c. 55), and 3kr^°^^°* analogous statutes a local authority has power, either in the first instance, or on default by the owner, to execute improvement works, andto recover the expenses from the owner or occupier by summary proceedings before justices : see sects. 23, 36, and 41, as to drain- age; sect. 62, supply of water; sect. 150, expenses of paving, etc., private streets ; Private Streets Works Act, 1892 (55 & 56 Vict, c. 57), s. 12. Under the Summary Jurisdiction Act, 1848 {supra, p. 413), such proceedings are subject to a six months' limitation. In general the amount recoverable is fixed by the notice of apportionment, and after service of this notice three months is allowed for disputing it : see Sandgate Local Board v. Keene, [1892] 1 Q. B. 831,. C. A.; and on the ground that the three months ought not to be counted in- reckoning the six months' limitation, it was originally held that the proceedings must be brought within nine months of the notice of apportionment : Jacomh v. Dodgson (1863), 9 B. & S. 461, on the corresponding provisions of the Public Health Act, 1848 (11 & 12 Vict. c. 63), and Local Government Act, 1858 (21 & 22 Vict. c. 98) ; and see per Lush, J., in Wilson v. Mayor of Bolton (1871), L. E. 7 Q. B. 105, at p. Ill ; as to the law i^rior to the Act of 1858 see Eddlestone v. Francis (1860), 7 C. B. N. S. 568. Time runs But the starting-point for the six months is not the date of d^nwnd*^'^^ °^ ^^^^ liability being ascertained, but of the service of the notice of demand (sect. 257 of the Public Health Act, 1875), though if this is served before the three months for disputing the appor- tionment have elapsed, such three months or the unexpired part are to be excluded: Grece v. Hunt (1877), 2 Q. B. D. 389; Marr V. Greenwich Board of Works (1880), 44 J. P. 424. Thus, if the notice of demand is served after the three months, the proceedings must be taken within six months of the service of the notice of demand : if it is given before, the time runs from the end of the three months. Or perhaps the notice of demand is not valid unless given after the expiration of the three months, in which case the period would always be six months from the notice of demand : West Derby Loccd Board v. Bell (1878), 42 J. P. 812 ; Simcox v. Handsworth Local Board (1881), 8 Q. B. D. 39 ; Re Bettesworth and Bicher's Contract (1888), 37 C. D. 535. An irregular notice, if invalid, may be followed CHAP. IX.] PROCEEDINGS BEFOPtE MAGISTRATES. 415 by a valid notice, and time then runs from the date of the latter notice : Sijhes y. Mayor of Rudder sjield (1871), 35 J. P. 614. Under the Metropolis Management Acts, 1855 (18 & 19 Yict. c. 120) and 1862 (25 & 26 A^ict. c. 102), the six months runs from the service of notice of demand notwithstanding delay in serving such notice : Wortley v. St. Mary, Islington (1886), 51 J. P. 166 : and "where there has been an arrangement for payment by instalments, time runs as against each instalment from demand for that instalment, notwithstanding a previous demand for the whole sum : Prescott v. Nicholson (1889), 60 L. T. 563. And as regards the expense of pulling down dangerous structures under the former of these Acts time runs from demand of payment, and not from the incurring of the expense : Lababnondiere v. Addison (1858), 1 E. & E. 41. The local authority are restricted to the procedure prescribed Substitution by the statute. The relation of debtor and creditor is not of county ■^ . , court. created so as to enable them to prove as ordinary creditors in an administration action: JVcst v. Doicn)nan (1880), 14 C. D. Ill, C. A. And though under sect. 261 of the Public Health Act, 1875, demands under fifty pounds which are recoverable sum- marily may also be recovered in the county court, yet these pro- ceedings are merely substituted for those before the justices, and are subject to the same limitation of six months : West Ham Local Board v. Maddams (1876), 33 L. T. 809 ; Tottenham Local Board v. Eowell (1876), 1 Ex. D. 514, C. A. Where, on the other hand, a local Act gives the local Option to authority the option of either proceeding summarily before Proceed sum- . . . manly or by justices or of recovering the amount by action, the six months' action, limitation applies only to the proceedings before justices : Mayor of Blackburn v. Sanderson, [1902] 1 K. B. 794, C. A. ; cf. Mayor of Leeds v. Robshaw (1887), 51 J. P. 441 ; and the action is limited either to six years under the statutes of James, or more probably to twenty years, as being brought on a specialty debt : Hanvpstead Corporation v. Caunt, [1903] 2 K. B. p. 3, n. (5). It is the same with regard to expenses incurred by a local authority under the Public Health (London) Act, 1891 (54 & 55 Yict, c. 76), in obtaining a nuisance order and carrying it into effect. Under sect. 11 these may be recovered either summarily, or in the county couit, or in the High Court, and since the various procedures are optional, the six months' limitation applies only to the summary proceedings : Mayor of Blackburn \, 416 CRIMINAL AND CROWN PROCEEDINGS, ETC. [CHAP. IX. Charge on land. Sanderson (siipni), overruling Hammersmith Vestry v. Lowenfeld, [1896] 2 Q. B. 278. Moreover, they are recoverable as money paid. Hence the statute runs from the incurring of the expenses, and apparently the j^eriod of limitation for an action is six years. Paving expenses under the Metropolis Management Act, 1855, s. 105, and the Metropolis Management Act, 1862, s. 77, in addition to being recoverable summarily, are recover- able by action against succeeding owners, and demand against the owner for the time being is necessary to give a cause of action against him. Such action is therefore barred in six years — or more probably twenty years — from the demand : Hampstcad Corporation v. Cannt, [1903] 2 K. B. 1, p. 3, n. (5). The six months' limitation does not apply to a charge on property under the Public Health Act, 1875, s. 257 : Tottenham Local Board v. Bowell (1888), 15 C. D. 378, C A. ; Corporation of Sunderlaiidx. Alcock (1882), 51 L. J. Ch. 546. The limitation is twelve years from the completion of the work : Hornsey Local Board v. Monarch Building Society (1889), 24 Q. B. D. 1, C. A. Erection of buildings. Sect. 75 of the Metropolis Management Act, 1862 (25 & 26 Vict. c. 102), (/) forbids the erection of buildings beyond the build- ing line, and under sect. 107 no penalty is recoverable unless the comj)laint before the justices is made within " six months after the commission or discovery of" the offence. As to time of dis- covery, see Metropolitan Board of Works v. Lathey (1884), 49 J. P. 245. This applies only to the recovery of pecuniary penalties {Bernwndsey Vestry y. Johnson (1871), L. Pi. 8 C. P. 441), though in Brutton v. St. Georges, Hanover Square (1871), L. Pt. 13 Eq. 339, it was extended to an order for the removal of buildings. Such an order, however, is limited by sect. 11 of the Summary Jurisdiction Act, 1848 (supra, p. 413), and under that section the complaint must be made within six months after the offence is complete : Morant v. Taylor (1876), 1 Ex. D. 188. Moreover, the offence is complete when the building first projects beyond the building line, although the architect's certificate as to the building line has not then been given : London County Council v. Cross (1892), 66 L. T. 731, C. A. ; Hidl V. London County Council, [1901] 1 Q. B. 580. Though where an offence is continuing, and a penalty is recoverable in respect of the continuing offence, it is recoverable for six (?) Repealed: see now the London Building Act, 1894 (57 & 58 A^ict. c. ccxiii.). CHAP. IX.] PROCEEDINGS BEFORE MAGISTRATES. 417 months before the summons : London Coiinttj Council v. Worlcj/, [1894] 2 Q. B. 826, on the Metropolis Management Act, 1862, ss. 85, 107 ; Rumhall v. Schmidt (1882), 8 Q. B. D. 603, on sect. 156 of the Public Health Act, 1875, now sect. 3 of the Public Health Act, 1888 ; Metropolitan Board of Works v. AntJiomj & Co. (1884), 54 L. J. M. G. 39, on the Metropolis Management Act, 1882, s. 13 ; Reg. v. Slade, [1895J 2 Q. B. 247, on the Public Health (London) Act, 1891, s. 5 (9) ; and see Ecaij v. Mayor of Gateshead (1886), 34 W. E. 682. The limitation will be observed by the magistrates in any- proceeding before them, and the High Court has no jurisdiction to restrain the institution of proceedings on the ground that the period of limitation has expired : Kerr v. Corporation of Preston (1876), 6 C. D. 463. The six months' limitation under the Summary Jurisdiction Application Act, 1848, applies to the recovery of claims determinable by uni'ita^ou.*'"' justices under sect. 140 of the Railway Clauses Act, 1845 (8 Vict. c. 20), and consequently to the recovery of water rates under dB20, which, by virtue of sects. 74 and 85 of the Waterworks Clauses Act, 1847 (10 Vict. c. 17), are recoverable under sect. 140 of the Railway Clauses Act, 1845. Such sums are civil debts within the Summary Jurisdiction Act, 1879, and the limitation on summary proceedings by complaint applies to them: East London Watericorhs Co. v. Charles (1894), 42 W. R. 702. And the same limitation in the Petty Sessions (Ireland) Act, 1851 {supra, p. 413), applies to proceedings before justices by the treasurer of a loan society to recover the amount due on promissory notes under the Charitable Loan Societies (Ireland) Act, 1843 (6 & 7 Vict. c. 91) : Atthill v. Woods, [1903] 2 I. R. 305 ; B. V. Justices of Fermanagh, [1904] 2 I. R. 18, C. A. ; see O'licillij V. Connor, [1904] 2 I. R. 601, p. 604. But it is otherwise as to compensation awarded by justices Cumpeusation under sect. 22 of the Lands Clauses Act, 1845, on claims not ""*- °''"" ~^"- exceeding £50, for lands compulsorily taken or injuriously affected. The adjudication is not an order for payment of money under the Summary Jurisdiction Act, 1848, and the summons to hear and determine the question of compensation is not out of time if issued after six months from tlio notice to treat : Ileg. v. Ilannaij (1874), 44 L. J. M. C. 27 ; nor need the summons be issued within six months of the claim arising : Reg. V. Edicard (1884), 13 (,). B. D. 586, C. A., overruling Re Edmundson (1851), 17 Q. B. 67. T.L.A. 2 E STATUTES IN APPENDIX. 31 Eliz. c. 5, s. 5 21 Jac. 1, c. 14 The Limitation Act, 1623 (21Jac. 1, c. 16), ss. 3, 1, and 7 4 & 5 Anne, c. 3, ss. 17, 18, aud 19 The Crown Suits Act, 1769 (9 Geo. 3, c. 16) The Crown Claims Limitation (Ireland) Act, 1808 (48 Goo. 3, c. 47) The Statute of Frauds Amendment Act, 1828 (9 Geo. 4, c. 14) /The Real I>roperty Limitation Act, 1833 (3 & 4 Will. 4, c. 27) /The Civil Procedure Act, 1833 (3 & 4 Will. 4, c. 42), ss. 2-7 ^The Real Property Limitation Act, 1837 (7 Will. 4 & 1 Vict. c. 28) The Irish Common Law Procedure Amendment Act, 1853 (16 & 17 Vict c. 113), ss. 20-27 The :\Iercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), ss. The Law of Property Amendment Act, 1860 (23 & 24 Vict. c. 38), ss The Crown Suits Act, 1861 (24 & 25 Vict. c. 62) ^The Real Property Limitation Act, 1874 (87 & 38 Vict. c. 57) The Nullum Tempus (Ireland) Act, 1876 (39 & 40 Vict. c. 37) The Crown Lands Act, 1906 (6 Ed. 7, c. 28, s. 9) 9-14 ... 13&15 PAGK 419 420 421 422 423 428 432 433 444 446 447 449 451 452 454 458 459 APPENDIX. STATUTES. {The Ji(jurc8 in the margin refer to the pcujcs in the text.) (31 Eliz. c. 5, s. 5.) An Act concerning Informers. 5. All actions, suits, bills, indictments or informations which, after Limitation of twenty days after the end of this session of Parliament, shall be had, |^,^^|;°^ °" brought, sued or exhibited for any forfeiture upon any statute penal, statutes: two made or to be made, wherelw the forfeiture is or shall be limited to yc'^'™ fo'' "'o i rowii Jiuti the Queen, her heirs or succes.sors only, shall be had, brouglit, sued or „„,. y^.'^y f,,j. .^ exhibited within two years next after the otlence coiiuiiitttKl or to be y error, or a verdict pass for the plaiutilf, 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 1)0 brought by original, and the defendant therein l)e outlawed, and sliall niU'.r re.verse the outlawry, that in all such cases the party pl.iirit ill", liis luiirs, executors or administrators, as the case shall require, liimitation of time within which certain personal actions shall bo brought, viz. : — [p. 190.] Actions on the case, account, trespass, replevin, etc., within six years. Assaults, etc., within four years. For words within two years. Tn case of reversal of judgment for error, etc.nrw action may be brought with- in one year. [p. l'.»8.] 422 APPENDIX. Infants, etc., may bring such personal [p. 290.] actions within tlio several periods after their dis- ability ceases. 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, 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 accounts, actions of debts, action 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 ax'e before limited after 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. Limitations of suits for sea- men's wages. [p. 245.] Proviso for plaintiffs in respect of infancy, etc., in such suits. [p. 291.] And for defendants beyond seas in such suits, and also in actions of trespass, detinue, etc. [p. 293.] (4 & 5 Anne, c. 3, ss. 17, 18, and 19.) An Act for the Amendment of the Law and the better Advancement of Justice, 17. 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 [i.e. in 1706] shall be commenced and sued within six years next after the cause of such suits or actions shall accrue and not after. 18. Provided nevertheless 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 or 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 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 large and returned from beyond the seas. 19. 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, action sur 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 with- out 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 APPENDIX. 423 seas (rt)] 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. THE CROWN SUITS ACT, 1769 (9 Geo. 3, c. 16). An Act to amend and render more effectual an Act made in the Twenty- The Nullum fird Year of the Reign of King James the First, intituled " An Act Tf'ttM^us Act, for the general Quiet of the Subjects against all Pretences of Concealment whatsoever." Preamble recites 21 Jac. 1, c. 2 : And whereas the said Act is now by efflux of time become ineffectual to answer the good end and purpose of securing the general quiet of the subjects against all pretences of concealment whatsoever : 1. The King's Majesty, his heirs or successors, shall not at any time hereafter sue, impeach, question, or implead any person or persons, bodies politic or corporate, for or in anywise concerning any manors, lands, tenements, rents, tithes, or hereditaments whatsoever (other than liberties or franchises), or for or in anywise concerning the revenues, issues, or profits thereof, or make any title, claim, challenge, or demand of, in, or to the same or any of them, by reason of any right or title which hath not first accrued and grown, or which shall not hereafter first accrue and grow, within the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or pro- ceeding as shall at any time or times hereafter be filed, issued, or commenced for recovering the same, or in respect thereof, unless his Majesty, or some of his progenitors, predecessors, or ancestors, heirs or successors, or some other person or persons, bodies politic or cor- porate, under whom his Majesty, his heirs or successors, any thing hath or lawfully claimcth or shall have or lawfully claim, have or shall have been answered, by force and virtue of any such right or title to the same, the rents, revenues, issues, or profits thereof, or the rents, issues, or profits of any honour, manor, or oilier hereditament whereof the premises in question shall he part or parcel (/>) within the said space of sixty years, or that the same have or shall have heen duly in charge to his Majexfy, or some of his pjrogenitors, predecessors, or ancestors, heirs, or surcf'ssors, or have or shall have stood insuper of record, within th- said space (f sixty years, (h) The Crown shall not sue or implead any person for any manors, lands, or heredita- ments, etc., where the right hath not or shall not first accrue and grow within sixty years next before the commenc- ing sucli suit, etc. ; [p. 1 13.] (a) Interlined on the roll. (/<) Hepealoil in cirect by tln' Crown Suits Act, ISCI, infra, p." •l.'")'2. 424 APPP]NDIX. and tho sub- ject secured in the free and quiet enjoyment thereof, as well against the Crown, etc. [p. 147 ] [p. 147.] And all and every person or persons, bodies politic and corporate, their heirs and successors, and all claiming by, from, or under them or any of them, for and according to their and every of their several estates and interests which they have or claim to have or shall or may have or claim to have in the same respectively, shall at all times here- after quietly and freely have, hold, and enjoy, against his Majesty, his heirs and successors, claiming by any title which hath not first accrued or grown or which shall not hereafter first accrue or grow within tho said space of sixty years, all and singular manors, lands, tenements, rents, tithes, and hereditaments whatsoever (except liberties and franchises) which he or they, 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, issues, or profits thereof, by the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, informa- tion, commission, or other suit or proceeding as shall at any time or times hereafter be filed, issued or commenced, for recovering the same, or in respect thereof ; unless his Majesty, or some of his progenitors, predecessors or ancestors, heirs or successors, or some other person or persons, bodies politic or corporate, by, from or under whom his Majesty, his heirs or successors, any thing hath or lawfully claimeth, or shall have or lawfully claim, in the said manors, lands, tenements, rents, tithes or hereditaments, by force of any right or title, have been or shall have been answered, by virtue of any such right or title, the rents, revenues, issues, or other profits thereof, within the said space of sixty years ; or that the same have or shall have been duly in charge, or stood insuper of record as aforesaid, icitldn the said space of sixty years («). And furthermore all and every person and persons, bodies politic and corporate, their heirs and successors, and all claiming or to claim by, from or under them, or any of them, for and according to their and every of their several estates and interests which they have or claim, or shall or may have or claim, respectively, shall, for ever hereafter, quietly and freely have, hold and enjoy, all such manors, lands, tenements, rents, tithes and hereditaments (except liberties and franchises) as they now have, claim or enjoy, or hereafter shall or may have, claim or enjoy, whereof his Majesty, his progenitors, predecessors or ancestors, or whereof his Majesty, his heirs or successors, or he or they by, from or under whom his Majesty, his heirs or successors, any thing hath or lawfully claimeth, or shall have or lawfully claim, or some of them, by force of some right or title to the same, have not or shall not have been answered, by virtue of such right or title, the rents, revenues, issues or profits thereof within the space of sixty years next before the filing, issuing or commencing of every such (a) Repealed in effect by the Crown Suits Act, 18G1, infni, p. 4;")2. APPENDIX. 425 action, bill, plaint, information, commission or other suit or proceeding as shall at any time or times hereafter be filed, issued or commenced, for recovering the same, or in respect thereof, nor the same have been or shall have been duly in charge, or stood insuper of record as aforesaid, tvithin the said space of sixty years (a), against all and every person and persons, their heirs and assigns, having, claiming or pretending to have, or who shall or may have, claim or pretend to have any estate, right, title, interest, claim or demand whatsoever, of, in or to the same, by force or colour of any letters patents or grants upon suggestion of concealment or wrongful detaining, or not being in chai'ge, or defective titles, or by, from or under any patentees or grantees, or any letters patents or grants upon suggestion of concealment or wrongful detain- ing, or not being in charge, or defective titles, of or for which said manors, lands, tenements, rents, tithes and hereditaments or any of them, no verdict, judgment, decree, judicial order upon hearing, or sentence of any court now standing in force, hath been had or given, or any such verdict, judgment, decree, judicial order upon hearing, or sentence of court, shall hereafter be had or given, in any action, bill, plaint or information, in any of his Majesty's courts at Westminster, for or in the name of the King's Majesty, or any of his ancestors, progenitors, predecessors, heirs or successors, or of any of the said patentees or grantees, or for their or any of their heirs or assigns, within the space of sixty years next before the filing, issuing or com- mencing of every such action, bill, plaint, information, commission or other suit or proceeding as shall at any time or times hereafter be filed, issued or commenced, for recovering the same, or in respect thereof as aforesaid. 2. Provided always, that where the rents, revenues, issues or profits of any manors, lands, tenements, tithes or hereditaments, are or shall l)e in charge, by, to or with any auditor or auditors, or other jjroper officer or officers of the revenue, such rents, revenues, issues and profits, shall be held, deemed and taken to be duly in charge within the meaning and intent of this Act ; any usage or custom to the contrary notwithstanding. 3. Provided always that this Act, or anything therein contained, shall not extend to bar, impeach or hinder his Majesty, his heirs or successors, of, for or from any manors, tenements, rents, tithes or hereditaments, whereof any reversion or remainder now is in his Majesty, for or concerning the said reversion or remainder; nor of, for, or from any reversion or remainder, or possibility of reversion or remainder, in any of his Majesty's progenitors, or predecessors or anc(^stors, which by the expiration, end or other deiennination of any limited estate of fee-simple, oi- of any f(!e-tail or otluir particular estate, li.ith or ought to liav(! first fiillcn oi- hecoiiie in possession, or \sliicli as against all persons claim- ing any estate or interest there- in, by colour of any letters patent, or grants upon suggestion of concealment, wrongful de- taining, etc., for which judgment hath not or shall not be given for the Crown within sixty years before the commencing such suit. In what cases the rents and profits of manors, etc., shall ho deemed to be; duly in charge. [p. 144.] Cases wherein reversions or remainders in the Crown, of any manor, etc., are not liaI)lo to be impeached by this Act. fp. I4S.] (a) Rcpcahd in efled l.y the Crown Suits A>hall have ceased to be imder any such disability, or shall have died (lohich shall have first happened). 17. Provided nevertheless, that no entry, distress or action shall be made or brought by any person 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 hereinbefore men- tioned, or by any person claiming through him, but within forty years next after the time at ivhich 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 forty years, or although the term of ten years from the time at ivhich he shall have ceased to be under any such disability, or have died, shall not have expired. IH. Provided always, that wlioii any person shall bo under any of (<>n or payable out of -.iny land or rent, or in respect of any (a) liepealod, Civil Procedure Acts Repeal Act, 1879 (42 & 4.S Vict, c .")'.»). The exceptions in favour of iictiouH for dower liud previouHly been rojjealed by thi; Statute Ijaw Ueviaion Act, 1874 (37 & 38 Vict. c. 35), which" also repealed acctioiiH 37 & 38. except for dower, quare irapedit, and ejectment. Real actions may be brought until the 1st June, 188"). yaviiig the rights of persons en- titled to real actions only at the com- mencement of the Act, etc. No descent, warranty, etc., to bar a right of entry. See E. P. L. A., 1874, s. 8. [p. l.'->4.] [pp. :?23, 355.] No arrciirs of (lower to be [p 174..] re(!overed for more than si.\ years. [p. 174.] No arrears i>f 444 APPENDIX. rent or interest in respect of money [p. 324.] cliarged upon land and legacies, etc., to be re- covered for [p. 179.] more tlian six years. Proviso where a prior mort- gagee has been in pos- session. Act to extend to spiritual [p. 168.] courts. Act not to extend to Scotland. [p. 14.] 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 sarne 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 in- cumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. 43. 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 proceeding in any spiritual Court to recover the same but within the period during which he might bring such action or suit at lavv or in equity. 44. This Act shall not extend to Scotland ; [and shall not, so far as it relates to any right to present to or bestow any church, vicarage or other ecclesiastical benehce, extend to Ireland («)•] Executors, etc., may bring actions [pp. 226, 227.] for injuries to the real estate of the deceased ; and actions may be brought against ex- ecutors, etc., for an injury to property. THE CIVIL PROCEDURE ACT, 1833 (3 & 4 Will. 4, c. 42, ss. 2-7). All Act for the further Amendment of the Lmv and the better Advancement of Justice. [14/7* Auyiist, 1833.] 2. An action of trespass or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person ; and the damages, when recovered, shall be part of the personal estate of such person ; and further, an action of trespass or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased for any wrong committed by him in his lifetime to another in respect of his (o) As regards these rights the Act was extended to Ireland by 6 & 7 Vict. c. 54 ; but these words were repealed by 37 & 38 Vict. c. 3.') (Stat. Law Rev. Act, 1874). APPENDIX. 445 property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administra- tion of the estate and effects of such person ; and the damages to be recovered in such action shall be payable in like order of administra- tion as the simple contract debts of such person. 3. 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 recognizanca, 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 fac(as\ 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, 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 recognizance, within twenty years after the cause of such actions or suits, but not after ; the said actions by the party grieved, within two years after the cause of such actions or suits, but not after ; and the said other actions 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. 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 years, 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 com- mence the same within such times after their coming to or being of full age, discovert, of sound memory, or i-eturned from beyond the seas, as other persons having no such impediment should, according to the pro- visions of this Act, have done ; and if any person or persons against whom 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 lil)erty 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 Ijy the party liable by virtue of such indenture, specialty, or recognizance, or his agent, or by part payment (»!• part satisfaction on account (jf any princij)al or intei'est l>eing then due thereon, it shall and may bu lawful for the person or pci'sons real or per- sonal, by their testator. Limitation of actions of debt for rent and on specialties, etc. [p. 194.] [p. 241.] Proviso for actions by infants, femes covert, etc., [p. 291.] and for abeence of [p. -294.] defendants beyond seas. Proviso in case of ac- knowledg- ment in [pp. 324, 355.] writiuj^ or by part payment. 446 APPENDIX. Tjimitation of new actions [p. 199.] after judg- ment re- versed, etc. No part of the United Kingdom, [p. 294.] etc., to be deemed be- yond the seas within the meaning of this Act. 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 satis- faction as aforesaid, or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such dis- ability 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 the seas, as the case may be ; and the plaintiff or plaintiffs in any such action on any indenture, specialty, or recognizance, 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, 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, . . . that 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, and not after. 7. 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 his Majesty, shall be deemed to be beyond the seas within the meaning of this Act, or of the Act passed in the twenty-first year of the reign of King James the First, intituled, " An Act for Limitation of Actions and for avoiding Suits in Law." 3 & 4 Will. 4, c. 27. THE REAL PROPERTY LIMITATION ACT, 1837 (7 Will. 4 and 1 Vict. c. 28). An Act to amend an Act of the Third and Fourth Years of his late Majesty, for the Limitation of Actions and Suits relating to Real Property, and for sinqylifying the Bemedies for trying the Bights thereto. [Srd July, 1837.] Whkreas doubts have been entertained as to the effect of a certain Act of Parliament made in the third and fourth years of his late Majesty King William the Fourth, intituled " An Act for the Limi- tation of Actions and Suits relating to Real Property, and for simpli- fying the Remedies for trying the Rights thereto," so far as the same APPENDIX. 447 relates to mortgages ; and it is expedient that such doubts should be removed : It shall and may be lawful for any person entitled to or claiming under any mortgage of land, being land within the definition con- tained in the first section of the said Act, to make an entry or bring an action at law or suit in equity to recover such land at any time within tioenty {a) years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than twenty (a) 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. IRISH COMMON LAW PROCEDURE AMENDMENT ACT, 1853 ISEortgageos of land, beiug land within [p. 85.] the definition in 3 & 4 Will. 4, c. 27, s. 1, [p. 354.] may bring actions to recover land within twenty (a) years after last payment of principal or interest. (16 & 17 Vict. c. 113, ss. 20-27). An Act to amend the Procedure in the Superior Courts of Co)iiinou Late in Ireland. With respect to the period of limitation within which personal actions shall be brought ; — 20. All actions for rent upon an indenture of demise, all actions Limitation of upon any bond or other specialty, or upon any judgment, statute time for corn- staple, statute merchant, or recognizance, shall be commenced and of certain sued within twenty years after the cause of such actions or suits, or actions. the recovery of such judgment, but not after; all actions grounded [pp. li)7, 1'.'S.] upon any lending or contract, express or implied, without specialty, or upon any award, where the submission is not by specialty, or for any money levied on fieri facias ; all actions of account or for not account- ing, other than for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants ; all actions for direct injuries to real or personal property ; actions for the taking away, detention or conversion of property, goods and chattels ; actions for libel, malicious prosecution and arrest, seduction, criminal conver- sation ; 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 a.s.sault, menace, battery, wounding and imprisonment shall be com- menced 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, hy any statute now or here- after to be in force, shall be commenced and sued within two years after the words .spoken, or the cause of such action or suit, but not {a) "'J'woiity " altered to "twelve" (11. 1'. L. A., 1871, h. U). 448 APPENDIX. Limitation of time for com- mencing new [p. 199.] actions in certain cases. Limitation of time in case of persons [p. 292.] under dis- ability, etc. [p. 294.] Limitation of time after acknowledg- [pp. 324, 355.] ment or part payment on account of any specialty debt, etc. after ; and with respect to every cause of action not herein specifically provided for, being the subject-matter of a personal 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 con- tained 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 of limitation hereinbefore provided for in such action, or within a year after such judgment reversed, or judgment given against the plaintiff, and not after. 22. If any person that is or shall be entitled to any such action is or shall be at the time of any such cau.se 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 he commence the same within such time after the cessation of such disability or his return from beyond the 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 the seas, then the person entitled to any such cause of action shall be at liberty to bring the same agauast such person, within such time as is before limited, after the return of such person from beyond the seas. 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 recognizance, 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 acknowledged to be due, within twenty years after such acknow- ledgment 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 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 in any such action on any indenture, specialty, APPENDIX. 449 judgment, statute staple, or statute merchant, or recognizance, may rely on such acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute. 24. In actions grounded upon any simple contract no acknowledg- ment or promise shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the provisions of this Act in relation to the limitation of actions, 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 where there shall be two or more joint contractors, or executors or administrators of any con- tractor, 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 or lessen the effect of any payment of any principal or interest made by any person whomsoever. 25. Xo indorsement 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-ofi" 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 meaning of any .statute relating to the duties on stamps. After acknow- ledgment or part payment [pp. 325, 379.] on account of any simple contract debt. Memorandum of part pay- ment by [p. 379.] creditor not to take the case out of the provisions of this Act. Set-off by defendant. ^Memorandum not to require stamp. [p. 345.] THE MERCANTILE LAW AMENDMENT ACT, 1856 (19 vi: 20 Vict. c. 97, ss. 9-14). All Act to amend the laics of England and Ireland affecting Trade and Commerce. [29th July, 1856.] 9. All actions of account or for not accounting, and suits for such Limitation accounts, as concern the trade of merchandise between merchant and of actions lor ' merchants merchant, their factors or servants, shall Ije commenced and sued accounts. within six years after the c;iuse of such actions or suits; and no claim in respect of a matter which aro.se more than six years before the [p- '■^^^■1 commencement of such action or suit shall be enforceable by action or suit by rea.son only of some other matter of claim compri.sed in the .same account liaving ari.sen within .six years next before tlie com- mencement of such action or suit. T.r-A. 2g 450 APPENDIX. Periods under statutes of [p. 292.] limitation not to be extended by reason of persons being beyond seas or imprisoned. Period of limitation as to joint [p. 295.] debtors in the kingdom, where some are beyond Definition of '' beyond seas." [p. 29i.] Acknowledg- ments by agent. [p. 325.] 10. No per.son 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 Limitation Act, 1623, sect. 3, or by the Act of the fourth year of the reign of Queen Anne, chap, 16 {a), sect. 17, or by the Act of the fifty-third year of the reign of King George the Third, chap. 127, sect. 5, or by the Acts of the third and fourth years of the reign of King William the Fourth, chap. 27, sects. 40, 41 and 42, and chap. 42, sect. 3, or by the Common Law Procedure Amendment Act (Ireland), 1853, sect. 20, 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, imprisonment is now a disability, by reason of such person, or some 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 who 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 joint debtors who was or were beyond the seas at the time the cause of action or suit accrued, after his or 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 Anne, chap. 16 (a), 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, chap. 14, sects. 1 and 8, and the sixteenth and seventeenth years of the reign of her present Majesty, chap. 113, sects. 24 and 27, an acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorized to make such acknowledgment or promise, (a) 4 & 5 Anne, c. 3, in the Revised Statutes. APPENDIX. 451 shall have the same eflfect as if such writing had been sigued by such party himself. 14. In reference to the provisions of the Limitation Act, 1G23, sect. 3, and of the Act of the third and fourth years of the reign of King William the Fourth, chap. 42, sect. 3, and of the Common Law Procedui'e Amendment Act (Ireland), 1853, sect, 20, 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, executor, or administrator, 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. No cu-con- tractor, etc., to lose the benefit of these statutes by payment by any other co-contractor, etc. [pp. 373, 382.] THE LAW OF PROPERTY AMENDMENT ACT, 1860 (23 & 24 Vict. c. 38, ss. 13 and 15). An Act to further amend the law of property. [23rd July, I860.] 13. Recital of 3 <£• 4 Will. 4, c. 27, s. 40 : No suit or other proceeding shall be brought to recover the personal estate, or any share of the personal estate, of any person dying intestate, possessed by the legal personal representative of such 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, pay- ments or acknowledgments, if more than one, was made or given. 15. This Act is not to extend to Scotland, nor are any of the clauses, except clause six and the subseijuent clauses, to extend to Ireland. Limitation of suits to re- cover personal estate of in- testates. [p. 1U9.] [pp. 323, 355.J Act not to cxteml to Scotland, etc. 452 APPENDIX. THE CROWN SUIT8 ACT, 18G1 9 Geo. 3. c. 16. The Crown not to sue [p. 144.] after sixty years by reason of lands havinf been in charge, etc. 7 & S Yict. c. 105. 23 & 24 Yict. c. 53. [p. 152.] (24 & 25 A^icT. c. G2). An Act to amend the Act of the Ninth Year of King George the Third, Chapter Sixteen, for quieting Possessions and Titles against the Crown, and also certain Acts for the Wee Object relating to Suits by the Duke of Cornwall. [1st August, 18G1.] Preamble recites 9 Geo. 3, c. 16 : And whereas the good purpose of that Act has not been fully obtained by reason of the provisions therein relating to lands and hereditaments which have been in charge to her Majesty or have stood insuper of record, and also by reason of certain provisions therein relating to lands and hereditaments part or parcel of honours, manors, or other hereditaments : — 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 persons, or his or their or any of their ancestors or predecessors, or those from, Vjy, or under wliom they do or shall claim, have, or shall have held or enjoyed or taken the rents, revenues, issues, or profits thereof by the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, information, commission, or other suit or proceeding as shall at any time or times 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, or stood insuper of record, within the said space of sixty years ; but that such having been in charge and such standing insuper of record shall be as against such person and persons, and all claiming by, from, or under them or any of them, of no force and effect. 2. And whereas an Act was passed in the session held in the seventh and eighth years of her Majesty, chapter one hundred and five, " for quieting titles within the county of Cornwall as against the Duchy of Cornwall, and other purposes : " And whereas another Act was passed in the session held in the twenty-third and twenty-fourth years of her Majesty, chapter fifty- three, " for the limitation of actions and suits by the Duke of Cornwall in relation to real property, and for other purposes : " And whereas it is expedient that the limitation applicable to actions and suits by the Crown should be made applicable to actions and suits by the Duke of Cornwall : APPENDIX. 453 The iDi-ovisions of this Act hereinbefore contaiiied applicable to the Queen's Majesty shall extend and be applicable to the Duke of Cornwall, and to the said two last-recited Acts, in the same manner as if the Duke of Cornwall were hereinbefore mentioned or referred to where the Queen's Majesty is mentioned or referred to ; and this Act shall he construed together witli and l)e deemed to form part of the said two last-recited Acts. 3. The Queen's Majesty, her predecessors and successors, shall not be held, deemed or taken, for the purposes of the said Act of the ninth year of King George the Third, 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 persons or person, by the space of sixty years next before the filing, issuing, or commencing of any such action, suit, bill, plaint, information, commission, or other suit or proceeding for recovering the same or in respect thereof, as in the said Act is mentioned, by reason only of the same lands, manors, tenements, rents, tithes, or heredita- ments 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 or her predecessors or successors, or some other person under whom her Majesty 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, or stood insuper of record as aforesaid. 4. In the construction of the said Act of the ninth year of King George the Third and of this Act the right or title of tlie Queen's Majesty, lier heirs or successors, or of the Duke of Cornwall, to any manors, lands, tenements, rents, tithes, or hereditaments which are now or shall at any time hereafter be subject to or comprised in any 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, or the Duke of Cornwall, 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, tenements, 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 wlio shall claim from, by, or under any person or persons whose posses- sion, holding, or enjoyment of sucli manors, lands, tenements, rents, tithes, or hereditaments, or whose receipt of the rents, issues, or profits thereof, sliall have so cojinnenced as aforesaid. ."). Art not Id ' Provisions of this Act to apply to actions by the Duke of Coruwall. Crown not to be deemed to [p. 144.] have been answered the rents by reason of lands having been part of a manor, etc., whereof the rents have been answered, etc. When right of Crown or of Duke of Corn- wall shall be deemed to [pp. 150, 153.] have accrued in respect of demised lands, etc. 454 APPENDIX. No laud or rent to be recovered [p. 8.] but within twelve years after the right of action accrued. Provision for case of future [p. 54.] estates. Time limited to six years [p. 55.] when person entitled to the particular estate out of possession, etc. [p. r.G.] THE REAL PROPERTY LIMITATION ACT, 1874 (37 & 38 Vict. c. 57). An Act for the further Limitation of Actions and Suits relating to Real Property. [7th August, 1874.] 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 : 1. After the commencement of this Act (a) 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 reversion or remainder, or other future estate or interest, 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 received, notwithstanding the person claiming such land or rent, or some person through 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 fii'st 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 («) The Act did not come into operation till 1st January, 1879; see s. 12. APPENDIX. 455 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 subsequent estate or interest under any deed, will, or settlement, executed or taking effect after the time when a right to make an enti-y 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 hereinafter 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 an action or suit, to recover such land or rent, at any time within six years next after the time at which the person to whom such right shall first have accrued shall have ceased to be under any such disability, 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 ti) 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 claiming 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 tlie term of six years from the time at which he shall have ceased to Ije under any such disability, or have died, shall not have expired. G. 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 t\\v. execution thereof, oi- at any time afterwards, l)e in possession or receipt of tlu! profits of such land, or in the receipt of such rent, and tlie sanies pcrscjii or any other person whosoevei' (other tliaii some person cnlitlcd losucli {tossession or In cases of infancy, coverture, or [p. 288.] lunacy at the time when the right of action accrues, then six years to be allowed from the termination of the disability nr previous death. No time to be allowed for absence [p. 289.] beyond seas. Thirty years utmost allow- ance for dis- abilities. [p. 288.] In case of pos- session under an assurance [p. g:!.] by a tenant iu tail, which bliall not bar (ho remain- ders, thoy 456 APPENDIX. shall be barred at the end of twelve yeard after that period, at which the assurance, if then executed, would have barred them. Mortgagor to he barred at end of twelve [p. 89.] years from the time when the mortgagee took posses- sion [p. 323.] or from the last written acknowledg- ment. [p. 337.] [p. 337.] [p. 338.] 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 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 sucli 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 con- sent 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 riglit 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 claiming 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 acknowledgment, 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 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 moi^tgagees 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 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 of the mortgagees or persons aforesaid 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, the 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 APPENDIX. 457 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, judgment, 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 mean- time 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 proceeding shall be brought but within twelve years after such payment or acknowledg- ment, 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 remain in full force, and shall be con- strued together with this Act, and shall take effect as if the provisions hereinbefore contained were substituted in such Act for the provisions contained in the sections thereof numbered two, live, sixteen, seventeen, twenty-three, twenty-eight, and forty respectively (which several sections, from and after the commencement of this Act, shall be re- pealed), and as if the term of six years had been mentioned, instead of the terra 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 yeai-s ; and the provisions of the Act passed in the session of the seventh year of the reign of his late Majesty King William the Fourth, and the first year of the reign of her present Majesty, chapter twenty-eight, shall remain 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 tliis Act nu action, suit or othei- 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 s(.'cured Ijy an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or l(?gacy so charged or payable and so secured, (jr any damages in respect of such .arrears, except within the time within which the same would bo recoverable if there were not any such trust. 'Money charged upon laud and [p. 154.] legacies to be deemed satis- fied at the end of twelve years if uo [pp. 323, 355.] interest paid nor acknow- ledgment given in writing in the meantime. Act to be read with 3 & 4 Will. 4, c. 27, of which cer- tain parts are repealed, and other parts to be read in reference to alteration by this Act. 7 Will. 4 & 1 Vict. c. 28, to be read with this Act. Time for recovering [p. 1G2.] cliarges and arrears of interest not li bo enlarged by express tiiists for raising same. 458 Short title. APPENDIX. 11. This Act may be cited as the " Real Property Limitation Act, 1874." Commence- 12. This Act shall commence and come into operation on the first meut of Act. j.^y ^f January one thousand eight hundred and seventy-nine. 2-1 & 25 Vict. c. G2. The Crown not to sue for lands, etc., after sixty years [p. 145.] by reason only of same having been in charge. The Crown not to sue [p. 145.] after sixty years by reason only of the lands, etc., sued for being part of a manor, etc., of which THE NULLUM TEMPUS (IRELAND) ACT, 1876 (39 & 40 Vict. c. 37). An Act to assimilate the law in Ireland to the law in England as to quieting possessions and titles against the Crown. [11 //t August, 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 : 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 persons, 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 haA^e held or enjoyed or taken the rents, revenues, issues, or profits thereof, by the space of sixty years next before the filing, issuing, or commencing of every such action, bill, plaint, informa- tion, commission, or other suit or proceeding as shall at any time or times 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 tliem, of no force or efiect. 2. The Queen's Majesty, her predecessors and successors, shall not be held, deemed, or taken for the purpose of any suit, bill, plaint, in- formation, commission, or other proceeding to have been answered the rents, revenues, issues, or profits of any lands, manors, tene- ments, 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 recovering APPENDIX. 459 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 Crown Claims Limitation (Ireland) Act, 1808, 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 shall at any time hereafter be subject to or comprised in any 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, tenements, 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, rent, tithes, or hereditaments, 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 proceeding instituted or commenced before the passing of this Act, and now pending (a). 5. Tliis 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. the rents, etc., have been answered to Her IMajesty, etc. Preserving right to reversionary interests. [p. 150.] Act not to apply to existing suits. This Act to be read as one Act with 48 Geo. ;!, c. 47. CROWN LANDS ACT, 190G (6 Edw. 7, c. 28, s. 9). An Act to Amend the Crown Lands Acts, 1829 to 1894. [ith August, 1906.] 9. No proceeding shall be taken by or on behalf of the Crown for J.imitiition of enforcing the payment of any quit rent or any other perpetual rent *''^® ^'"! payable to the Crown in Ireland, or any arrears thereof, but within ' i. -i ° sixty years from the time when such rent was last received l)y or on ^ tor rccovfti'v behalf of the Crown, and after the expiration of that period the right by Crown of of the Crown to the rent and arrears shall be extin<'uished. 1"'^ and other " rents. (a) Repealed, 4(J & 47 Vict. c. :;i» (Stal. Law I.'lv. Act. ISHJ). INDEX. ABILITY TO PAY, promise conditional on, 351 ABOBTIVE ACTION, extension of time for, 198 ABSENCE BEYOND SEAS, abolition of disability of, 289, 292 ACCEPTOR of bill of exchange, accrual of cause of action against, 218 ACCOUNT, action of, limitation on, 214 balance due on, acknowledgment of, 343 claim to, against trustee, 284 payment on account of items in, 37G pending, acknowledgment of, 347 period of, how reckoned, 215 re-opening of settled, 216, 298 request of debtor for, whether an acknowledgment, 34G ACCRUAL OF RIGHT OP ACTION (land and rent), 15 (contract and tort), 200 ACKNOWLEDGMENT, statutory provisions as to, 322 table of statutory requirements, 327 and part payment, distinction between, 364 loss of, 343 pleading, 325 as to land, mortgage money, etc., and specialty debts. 328 by whom to be made, 328 to whom to be made, 329 signature of, 332 parol evidence to supplement, 332 construction of, 333, 334 when to be made, 335, 33G effect of, 336 does not revive extinguished title, 116 as to simple contract debts, 339 doctrine of implied promise, 339 judicial statements of doctrine, 340 bv and to whom to be made, 341 form of, 343 signature of, 343 parol evidence to supplement, 344 construction of, 345 when to Ije made, 352 effect of, 353 ACQUIESCENCE, meanings of, 253 acquiescence proper, 253 elTect of preserved, 254 an clement in laches, 256 [ 1 1 INDEX. '♦ ACT COMPLAINED OF," limitatiou running from, 398 ACTION, personal, old forms of, 192 revivor of, 312 in rem, no limitation on, 216 to recover land, 8 ACTIONABLE WRONGS, 192 ACTUAL SEISIN, 146 ADMINISTRATION, grant of, to statute-barred creditor, 212 ADMINISTRATION ACTION, 812 stops statute as against plaintiff, 314 judgment in, stops statute as against creditors, 315 statute-barred creditor, plaintiff in, 212 setting up statute in, 212 judgment in, acknowledgment by executor after, 342 payment of statute-barred debts after, 211 revivor of, 312 fund in court in, 320 claiins arising in course of, 316 ADMINISTRATOR, accrual of title of, to leaseholds, 50 operation of statute against, 205 ADVERSE POSSESSION, under old law, 6 abolition of former doctrine of, 6 modern doctrine of, 7, 124 title by, 117 to registered land, 133 against Crown, 147 ADVERTISEMENT FOR CREDITORS, not an acknowledgment, 342 does not stop statute, 317 ADVOWSON, limitation in respect of, 14 AGENT, possession by, 29 receipt of rents by, 30 when statute runs in favour of, 243 ' when treated as a trustee, 277 X acknowledgment by, 329, 341 payment by, on account of mortgage, 358 on account of simple contract debt, 380 payment to, 381 AGREEMENT not to plead statute, 208 AIR, possession of space in, 18 ALIENATION, failure to take possession on, 49 statute runs, though no power of, 10 by heir or devisee, effect of, 155, 371 AMBASSADOR, statute does not run in favour of, 206 ANALOGY of the statute followed in equity, 251 ANIMUS POSSIDENDI, 39 [ 2 ] INDEX. ANNUITY, charged on land, 27 barred as rent, 27, 154 arrears of, 154, 176, 317 secured by term, 54 by express trust, 1G3 , 173 not charged on land, 177 given by will, 168 arrears of, 168 personal remedy for, 28 part payraent in respect of, 356 APPOINTEE, meaning of, 10 operation of statute against, 60 ARBITRATION, promise to pay conditional on, 352 ARREARS of dower, 174 of rent and interest, 175, 178, 317 personal remedies for, 183 acknowledgment of title to, 323 ASSESSMENT, certiorari to question, 411 ASSETS, following in equity, 266 AWARD, ^ limitation on action on, 194, 197 /'''^ application to set aside, 410 BAILEE, conversion by, 224 BAILIFF, possession by, 29, 99 BANKING ACCOUNT, current, 216 deposit, 217 BANKRUPTCY, treatment of statute-barred debts in, 213 stops running of statute, 319 ^ admission of debt in, 331, 349 /BARRATRY, action for, 204 BASE fee, operation of statute on, 63 BENEFICIARIES, requiring statute to be set up, 211 " BEYOND SEAS," meaning of, 294 BILL OF EXCHANGE, ^- operation of statute as to, 217 ^ accrual of action against acceptor, 218 against drawer and indorsers, 218, 219 pa}Tnent by, whether it implies a promise, 378 BOARD OF TRADE, property of deceased seaman with, 245 BONA FIDES, not required for adverse title, 10 BONA FIDE POSSESSOR, account of rents against, 189, 190 BOND, accrual of action on, 202 BOND DEBT, not necessarily charged on land, 155 proof of payment of interest on, 363 BOUNDARY WALL, possession of, 38 BOUNDARIES of parishes and manors, determination of, 110 BUILDINGS, breach of bye-laws as to erection of, \ 16 r ■■' J IXDEX. CAPITAL, return of, 196 CAUSE OF ACTION, accrual of, as to land, 15 as to contract and tort, 200 CERTIORARI, limitation on, 409, 410 CESTUI QUE TRUST, under express trust, 75 under constructive trust, 77 barred by laches, 272, 273 disseisin of trustee by, 76 how affected by bar to trustee, 80, 273 possession adverse to, 81 part payment by, 358 title of adverse to other cestui qiic tnists, 82 receipt of rents by, 77 tenant at will to trustee, 76 CHARACTERS, paj-ment by person filling different, 383 CHARITY, subject to bar of statute, 75 effect of void conveyance to, 74 CHARGE ON LAND, an " interest " in land, 17 money secured by, 154 interest on money secured by, 178 condition of sale as to, when more than 12 years old, 118 CHEQUES, accrual of action on, 220 payment by, effect of, 378 CHURCH LANDS, limitation in respect of, 12 CHURCHWARDENS, holding of land by, 42 COAL, adverse possession of seam of, 18, 44 CO-CONTRACTOR, acknowledgment by, 353 CO-DEBTOR, absence beyond seas of, 295 part pajTuent by, 373 effect of part payment against, 369, 381 contribution between, 234 CO-EXECUTOR, acknowledgment by, 353 part payment by, 383 COLLATION, right of, 15 COMPANY, laches of, 263 not within Public Authorities Protection Act, 1893. .391 COMPENSATION under Lands Clauses Act, title of possessory owner to, 132 COMPOSITION, real or conventional, bar to, 19 COMPULSORY PAYMENT, when admission implied from, 357 CONCEALED FRAUD, 300, 302 deprivation of land by, 302, 305 failure to discover, 306 must be by defendant or his predecessor, 304 [4] I INDEX. CONCEALED TITLES, 151 CONDITION, breach of, 57 promise to pay on, 351, 352 CONSENT, effect of, on change of possession, 44 CONSIDERATION, failure of, 239 CONSTABLES, limitation in favour of, 395 CONSTRUCTION of Statutes of Limitation, 2 CONSTRUCTIVE PAYMENT, effect of, 361 CONSTRUCTIVE TRUST, limited estate under, 78 operation of statute on, 72, 73 barred by laches, 268 CONTINUAL CLAI:M, abolition of, 11 CONTINUING BREACH of covenant, 203 CONTINUING INJURY, 204, 399, 401 CONTRACT, limitation in respect of simple, 191, 193 specialty, 194 ■ not within Public Authorities Protection Act, 1893. .389, 390 rescission of, v?hen barred by laches, 270 CONTRIBUTION, right to, 234, 261, 888 CONVERSION, accrual of action for, 222, 223 CONVEYANCE, by way of security, 91 CO-OWNERS, adverse possession between, 32 CO-PARCENERS, 82 COPYHOLD fines, 194, 197 rents, 23, 24 COPYHOLDER, encroachments b}', 108 operation of statute in favour of, 93 COPYHOLDS, action to compel admittance to, 9 possessory title to, 95 seizure of quotisque, 93 COPYHOLD TENURE, incidents of, how barred, 95 CORNWALL, DUCHY OF, limitations against, 153 CORPORATIONS sole, spiritual, and eleemosynary, how barred, 12 COSTS, limitation on, 248 charging order for, 249 statute-barred, taxation of, 210 CO-SURETIES, contribution between, 234 COUNTER-CLAIM, effect of statute on, 240 COUNTY COURT, pleading statute in, 4 recovery of extraordinary trailic expcnseH in, 229 improvement expeuHCS in, 415 T.L.A. [ 5 J 2 II INDEX. COVENANT, in mortgage, action on, 154 in separate deed, 157 by surety, 157 to keep in repair, breach of, 203 to settle money, 276 constructive payment under, 362 COVERTURE, abolition of disability of, 289, 293 CREDITORS, trust for, 279 when claim by, stops statute, 315 CRIMINAL proceedings, 403 information, 406 CROWN, adverse title against, 147 disseisin of, 140 extinguishment of title of, 147 future estates in, 148 ineffectual grant by, 149 limitation against, 140 in Ireland, 142 possession against, 140, 141 possession of, 140 presumption of grant by, 94, 141 reversion on lease by, 150 CROWN DEBTS, 224 CROWN PROCEEDINGS, limitation on, 407 CRUELTY TO ANIMALS, limitation in respect of, 412 DAMAGE, action maintainable without proof of, 201 continuance of, 399 subsequent to breach of contract, 202 DANGEROUS STRUCTURES, expenses of pulling down, 415 DEATH DUTIES, limitation on, 163, 225 DEATH, failure to take possession on, 49 tenancy subsisting at, effect of, 50 DEBTS, charged on land, 154, 162 on future interest, 160 where no real estate, 155 direction in will to pay, 158, 331 evidence of amount of, 344 DECEASED DEBTOR, alienation of land of, 371 liability of estate of, for debts, 370 effect of part payment against estate of, 371, 384 DECEASED PERSON, injury to real estate of, 226 injury to real and personal property by, 226 DEEDS, fraudulent deposit of, 223 wrongful detention of, 224 INDEX. DEFENDANT, absence of, beyoud seas, 293 death of, abroad, 295 joinder of, after writ, 309 DEMAND, note payable on, 221 at fixed period after, 222 notice of, by local authority, 414 DEPOSIT of money, 217 DERIVATIVE interests in land, claims to, 49 DETENTION, accrual of action for, 224 DEVASTAVIT, limitation on action for, 228 DEVISEE, for life, acknowledgment by, 337 part payment by, 372, 386 setting up statute by, 212, 213 DIRECTORS, refunding by, 271 treated as trustees, 278 untrue statements by, compensation for, 241 DISABILITY, land and rent-charges, 287 specialty debts, 291 simple contract and tort, 290 where no allowance for, 290 successive disabilities, 288 maximum period for, 288 action during, 291 death while under, 291 DISCHARGE, person capable of giving, 161 DISCLAIMER of lessor's title by lessee, 107 DISCONTINUANCE of possession, 33 of receipt of rent, 46 DISPOSSESSION, 29 rules to determine, 35 DISSEISIN, title by, 118 DIVIDENDS, limitation in respect of, 196 DOWER, right to, 174, 175 action for declaration of, 9 arrears of, 174 DOWERESS, part payment by, 358 DRAWER of bill, accrual of action against, 219 DULY IN CHARGE TO CROWN, meaning of, 144 EASEMENTS, paramount to possessory title, 117 ECCLESIASTICAL COMMISSIONERS, operation of statute against, 13 EJECTMENT, title in, 120, ]24 ELECTION, compensation under doctrine of, l/j/i ELEEMOSYNAJiY CORPORATIONS SOJ-K. I'J. [ 7 j INDEX. ENCROACHMENTS, by tenant, 108 severance of, from holding, 109 ENFRANCHISEMENT, presumption of, 94 against Crown, 95 ENTRY, effective, 11 successive rights of, 61 EQUITABLE LIEN, 155 EQUITY, limitation on claims to land in, 9 limitation in, generally, 251 effect of fraud in, 297 exclusion of statute by proceedings in, 208 EQUITY OF REDEMPTION, title to, by possession, 91 in registered land, how extinguished, 139 payment of interest by assignee of, 359, 369 ESCAPE, action for, 194, 197 ESTATE DUTY, limitation on, 220 in favour of purchasers, 163 ESTATES TAIL, limitation on, 61 reversions on, how barred, 62 efiect of fine, 64 right to bar, not excluded by trust, 72 ESTOPPEL, by acquiescence, 253 by payment of rent, 126 limited estates created by, 127 EXECUTOR, accrual of title of, 51 operation of statute against, 206 not an express trustee, 75 when changed into trustee, 172 devastavit by, 228 claim to legacy against, 167, 285 debt due from, efiect of statute on, 207 statute-barred debts, deduction of, by, 210 payment of, by, 211 retainer of, by, 212 lunacy of, 172 acknowledgment by, 341 to, 326 right of, to have accounts taken, 169 EXECUTORY INTERESTS, effect of laches on, 258 EXPRESS TRUSTS, saving for, 68, 272 how constituted, 71 annuity secured by, 163 money secured by, 161 EXPRESS TRUSTEES, persons treated as, 274 limitation in favour of, 280 EXTINCTION OF TITLE, 3, 116 EXTRAORDINARY TRAFFIC EXPENSES, lunitation on, 229 in favour of local authority, 400 [8] INDEX. FACTOR, accounting by, 243 FACTORIES, offences in respect of, 412 FATAL ACCIDENTS ACT, 1846, limitation on claim imder, 228 against public authority, 400 FIDUCIARY POSITION, receipt of property by person in, 276 FORECLOSURE, action for, how barred, 9, 154 creates new title, 87 of reversionary interest, 53 arrears of interest recoverable in, 181 FOREIGN JUDGMENT, action on, 230 FOREIGN STATUTES, debts barred by, 213 FORFEITURE, omission to enter for, 57 FORMAL ENTRY, effect of, 11 FRAUD, effect of, in postponing statute, 297 equitable rule as to, now prevails, 801 of agent, time no bar to, 243 FUND IN COURT, legacy payable out of, 173 time does not run while, 320 FUTURE CHARGES, 160 FUTURE INTEREST, accrual of right in respect of, 52 mortgage of, 87, 172 debt charged on, 160 in legacy, 171 of cestui que trust, 261, 285 GENERAL ISSUE, plea of, under penal statute, 4 against Crown, 142 GIFT, setting aside, 269 GOODS SOLD, action for, 231 GOODS, payment in, 377 GUARANTEE, action on, 231 HEIR, claiming adversely to trusts of will, 316 HEIR APPARENT, debts of, 226 HERIOTS, not within R. P. L. Acts, 24 HIGHWAY SURVEYORS, limitation in favour of, 396 HUSBAND, liability of, for wife's debts, 207 IMPLIED NEW PROMISE, doctrine of, 339 IMPRISONMENT, abolition of disability of, 292 wrongful, action for, 201, 400 IMPROVEMENT EXPENSES, recovery of, 414 charge on land for, 159, 416 INCUMBERED ESTATE, legacy payable out of, 171 [ !' ] INDEX. INCUMBERED ESTATES COURT, sale in, 317 INCUMBRANCER, prior, possession by, 179 INDEMNITY, action for, 233 interest on money recovered under, 234 right of surety to, 234 against rent-charge, presumption as to, 48 INDORSEMENT, proof of pajTnent by, 379 INDORSER OF BILL, accrual of action against, 219 INFANT, acknowledgment by, 342 disability of, 287, 288, 290 entry on land of, 30 right of, to account, 189' to money charged on laud, IGl INJUNCTION, action for, within Public Authorities Protection Act, 888 INTEREST, arrears of, 174, 178, 179 in administration action, 31G barred with principal, 179 on judgments, 178 legacies, 178 mortgages, 178 reversionary interest, 180 constructive payment of, 87 INTESTACY, partial, 169 resulting trust on, 74 INTESTATE, personal estate of, 169 cause of action against estate of, 206 payment on account of estate of, 857 IRELAND, limitation on personal actions in, 197, 193 ISSUE OP WRIT, effect of, 312 ISSUE IN TAIL, how barred, 61 JAMAICA, land in, 17 JOINT TENANCY, severance of, by possession, 32 possessory title in, 119 JUDGMENT, how far charged on land, 164 limitation on, 154, 164 in Ireland, 165 registration of, as mortgage, 165, 166 revivor of, 166 action on, 167 issue of execution on, 167 LACHES, doctrine of, 252 elements of, 255 statutory period not shortened by, 254 when not imputed, 260 [ 10 ] IXDEX. LAND, rule of limitation for, S action to recover, 8 pleading the statute in, 3 definition of, 17 division of rights in, 15 interests in, 17 proceeds of sale of, 17 dispossession of, 29 discontinuance of possession of, 33 periodical sums charged on, 26 acknowledgment of title to, 322 recovery of, in respect of intermediate interest, Gl LANDLORD, position of, 15 operation of statute against, 96 LAND PURCHASE ACTS (IRELAND), vesting order under, 317 sale to tenants under, 318 LANDS CLAUSES ACT, 1845, title to compensation under, 131 application to set aside award or verdict under, 411 LAND TRANSFER ACTS, adverse title to land registered under, 133 indemnity under, 225 LEASE, under seal, action for rent on, 183, 195 in writing, statute excluded by, 103 possessor not liable on covenants in, 117 surrender of, 107 effect of, on lessor's right of entry, 110 where stranger in possession. 111 where underlessee in possession. 111 void, operation of statute on, 105 LEASEHOLDS, possessory title to, 118 LEGACY, limitation on, 167, 285 accrual of right to receive, 170 deduction of statute-barred debt from, 211 future, 171 future interest in, 171 interest on, 178, 181 secured by trust, 172, 179, 285 payable out of land, 173 personalty, 173 fund in Court, 173 LEGACY DUTY, limitation on, 225 LEGAL ESTATE, extinguishment of, 118 LESSEE, disclaimer of lessor's title by, 107 LIBEL, action for, 230 LICENSEE, entry by, 40 LIEN, money secured by, 154 not saved by administration judgment, 315 possessory, available for statuto-barrcd debt, 209 LIFE ESTATE, proof of creation of, 54 LIMITED ESTATES under posHossory title, 127 [ 11 ] INDEX. LOAN, on mortgage not under seal, 238. See Money Lent LOCAL AUTHORITY, limitation in favour of, 397 in favour of member of, 394 LOCAL AND PERSONAL ACTS, limitations under, 387, 400 how far retained, 402 LORD OF IMANOR, operation of statute in favour of, 93 LUNACY, debts incurred before, 237 disability of, 287, 288, 290, 291 LUNATIC, arrears of maintenance of, 236 necessaries supplied to, 237 procuring conveyance from, 303 MAGISTRATES, limitation in favour of, 395, 396, 398 on proceedings before, 412 MANDAMUS, limitation on, 411 MANOR, waste of, possessory title to, 95 MARRIED WOMAN, laches of, 261 bar to, under Trustee Act, 1888. .286 part payment by, 380 MARSHALLING, former extension of time by, 200 MERCHANT SHIPPING ACT, 1894, summary proceedings under, 412 MERCHANTS' ACCOUNTS, limitation on, 215 MESNE PROFITS, recovery of, 187 MINERALS, separate ownership of, 18 taking by underground trespass, 300 MINES, possession of, 18, 44 discontinuance of possession of, 34 concealed fraud as to, 304 MODUS DECIMANDI, claims to, 20 MONEY, in Court, held for all parties, 320 lent, limitation on, 237 paid, limitation on, 238 MONEY CHARGED ON LAND, 155, 156, 157 acknowledgment of right to, 323 part payment on account of, 323 MORTGAGE, land subject to, 85 possession of, by stranger, 91 money secured by, 154 acknowledgment of, 323 payment on account of, 85, 92, 323, 355 effect of, 364, 366, 368 of future interest, 87, 172 not under seal, loan on, 238 registration of judgment as, in Ireland, 160 when paid off, operation of statute, 89 term, reversion on, 53 [ 12 ] INDEX. MORTGAGEE, action by, effect of judgment in, 31G in possession, 89, 90 acknowledgment by, 323, 337 possession of stranger adverse to, 92 possessory title of, devolution of, 89, 119 purchase of life tenancy by, 90 right of entry of, how kept alive, 85 sale by, setting aside, 2(56 second, operation of statute against, 8G MORTGAGOR, operation of statute in favour of, 85 payment of interest by, 367 executors of, payment by, 368 acknowledgment to, 323, 337 and mortgagee, union of characters of, 87 relation of, to mortgagee, 85 possession of part of property by, 90 title adverse to, 91, 117 MORTMAIN ACT, conveyance void under, 85 MUNICIPAL CORPORATIONS ACT, offence under, 412 MUNICIPAL OFFICE, quo warranto in respect of, 407 MUNICIPAL UNDERTAKINGS, limitation in favour of, 397 NEGLIGENCE, accrual of action for, 203, 247 NEW TITLE under R, P. L. Acts, 117 NEXT OF KIN, adverse possession by, 116, 119 executor a trustee for, 169 NUISANCE, accrual of action for, 201, 204 order, expenses of, 415 NULLUM TEMP US ACTS, 143, 152 OUTLAWRY, abolition of, 199 PARAMOUNT RIGHTS, possessory title subject to, 117 PARTICULAR ESTATE, effect of extinction of, 58 owner of, out of possession, 55 PARTICULAR OWNER, grant in foe by, 56 PARTIES, change of, after writ, 309 union of, effect on statute, 207 PARTITION by separate possession, 32 PARTNER, fraud of, 298 liability of co-partner for, 285 payment by, effect of, 383 surviving, payment f)y, 353 PARTNERSHIP accounts, limitation on, 239 interests; bar to, in equity, 267 [ i:J J INDEX. PART PAYMENT, statutory provisions as to, 322 effect of, 356 general principles as to, 354 as an admission of right. 356 pleading, 325 on mortgage and specialty debts, after mortgagee's title extinguished, 86 who can make, 86, 357 mode of, 362 proof of, 363 to whom made, 363 effect of, 364 after statutory period, 366 by co-debtor, 373 on simple contract debts, promise when implied from, 374, 376 to what debt attributable, 375 compulsory, 377 in bankruptcy, 377 mode of, 377 by set-off, 378 by retention, 379 proof of, 379 by whom made, 380 to whom made, 381 effect of, 381 PARTY, death of, new action on, 199 grieved, action for penalty by, 241 PAVING EXPENSES, 416 PAYMENT, appropriation of, 375 by bill or cheque, 378 instalments, default in, 244 person filling different characters, 383 set-off, 378 PENAL ACTION, limitation on, 194, 240 pleading in, 4 PENAL RENTS, 23 PENALTY OR DAMAGES, whether sum recoverable as, 241 PERIODICAL SUMS charged on land, 26 PERSON, definition of, 8, 75 to sue, 205 to be sued, 206 through whom another claims, 9 PERSONAL estate, no general limitation on, 242, 252 promise, exclusion of, 349 remedies for money charged on land, 157 arrears of rent and interest, 183 PETITION for sale by incumbrancer, 318 PLEADING THE STATUTE, 3 effect of, 4 PLEDGE, chattels in, redemption of, 243 [ 14 ] INDEX. POLICE, recovery of property taken by, 243 POLICY of Statutes of Limitation, 1 POOR LAW GUARDIANS, action against, 232, 283 costs payable by, 232, 233 POOR LAW ORDER, certiorari in respect of, 410 POSSESSION, abandonment of, 12 change of, 35 with consent, 44 continuous for statutory period, 11C> discontinuance of, 33 failiu-e to take, 49 on death, 49 on alienation, 49 how maintained, 33 non-continuous for statutory period, 120 plea of, 3, 4 against Crown, 142 pajrment by person in, 359 recovery of, by possessory owner, 120, 123 resumption of, 12 title in ejectment, 124 reference of, to lawful title, 7 POSSESSORY TITLE, 116 nature of, 118 when inchoate, 125 to leaseholds, 119 forced on purchaser, 118 adverse possession at registration of, 137 POST OBIT BOND, judgment on, IGG PRECATORY TRUSTS, 72 PRESENT interests in land, 29 right to receive money, 159, 170, 171 PRETENCED TITLES, 147 PRINCIPAL AND AGENT, statute no bar between, 243 PROBATE, admission of debt on applying for, 342 PROCEEDS OP SALE of land, 17 mortgage of, 178 of mortgaged property, retention of interest out of, 182, 183 PROMISE TO PAY, on demand, 244 when able, 244 implication of, 839 from acknowledgment, 339 from part payment, 374 PROMISSORY NOTE, operation of statute in respect of, 221 invalid, payment on account of, 375 PROSECUTION, commencement of, 406 PUBLIC AUTHORITY, limitation in favour of, 387 negotiating with, 402 action against, pleading statute in, 5 [ 15 J INDEX. PUBLIC AUTHORITIES PROTECTION ACT, 1893 .. 387 proceedings within, 388 persons within, 390 test for application of, 392 period of limitation under, 398 PUBLIC OFFICE, acts done in execution of, 395 PURCHASER, possessory title forced on, 118 for value of trust estate, 70 QUIET ENJOYMENT, breach of covenant for, 203 QUIT RENTS liable to be barred, 23, 24 to Crown, non-payment of, 145 receipt of, by, 151 QUO WARRANTO, limitation on, 407 RAILWAY COMPANIES, possession adverse to, 11 not within Public Authorities Protection Act, 1893. .391, 395 RATES analogous to tithes, how barred, 21 REAL ESTATE, mortgage of proceeds of, 178 RECEIPT of profits, effect of, 29 of funds, promise to pay on, 351 RECEIVER, possession of, 249, 320, 321 payment by, 358, 380 RECOUPMENT, right to, 320 REDEMPTION ACTION, arrears of interest allowed in, 181 RE-ENTRY, how effected, 11, 100 title not revived by, 116 REFUNDING, claims to, in equity, 260 REGISTERED charge, possessory title under, 139 title, effect on, of adverse possession, 133 REGISTRATION, of adverse title, 135 adverse possession at date of, 136 REMAINDERMAN, operation of statute against, 55 lien of, on arrears of income, 155 previous possession by, effect of, 54 resettlement by, 56 REMAINDERS, acceleration of, 58 REMEDY, statutes that bar, 6, 209 suspension of, 207 when personal barred with real, 157, 183 RENEWAL of writ, 310 [ 10 ] INDEX. RENT, adverse receipt of, during term, 111 arrears of, limitation on, 174, 175 personal actions for, 183 retention of, 177 title to, how extinguished, 104, 105, 177 definition of, 21 estoppel by payment of, 126 meanings of, in Real Property Limitation Acts, 23, 103, 112 nature of, 22 payable in produce, accrual of, 190 payment of, on relief from forfeiture, 177 effect of, on yearly tenancy, 103 receipt of, equivalent to possession, 16, 96, 112 recovery of, against adverse possessor, 177, 187 reserved on lease under seal, 183, 186, 244 on parol tenancy, 244 on lease for years not barred, 22 title by receipt of, 126 to, saved by express trust, 178 withholding of, 113 RENT-CHARGE, arrears of, limitation on, 186 judgment for, 116 devolution of title to, 50 discontinuance of receipt of, 46 extinguishment of title to, 116 failure to enter into receipt of, 50 how barred, 21, 23 payment of, by vendor after sale, 47 out of part of land, 46 rule of limitation for, 8 saving of Crown's title to, 150 statute runs in favour of person liable to pay, 23 RENTS AND PROFITS, 187 for what period account of, directed, 188, 189 receipt of, by Crown, 146 RESIDUE, limitation on, 168 RESTRICTIVE COVENANTS, paramount to possessory title, 117 RESULTING TRUSTS, when express, 74 RETENTION of money by creditor, whether part pajTuent, 378 REVERSION, extinction of title to, 113 mortgage of, 53 in personalty, 242 arrears of interest on, 180 recovery of, by mortgagee, 167 setting aside purchase of, 265 severance of, 115 wrongful claim to, 113, 114 RIGHT OP ACTION, accrual of, 15, 200 SALE OP LAND, proceeds of, 17, 155 order for, 317 SEAL, debt on instrument under, 195 SEAMEN'S WAGES, limitation on, 245 SECRET PROFIT, 299 [ 17 J INDEX. SEDUCTION, action for, 204 SEISIN of landlord, how maiutained, 16 SEPARATE ESTATE, claim of creditor against, 27. SERVANT, possession of, 99 SET-OFF, operation of statute as to, 245 of statute-barred debt by executor, 211 when equivalent to payment, 378 SETTLED ACCOUNT, re-opening, 216 SETTLEMENT while statute running, 56 of possessory title, entry under, 128 SHARES, liability on, 195 wrongful transfer of, 223 SHIP, relation of co-owners of, to managing owner, 243 SIMPLE CONTRACT, accrual of action on, 202 ■ debt on, acknowledgment of, 339 charged on land, 157, 158 part payment of, 374 limitation on, 191 SLANDER, action for, 203, 236 in course of public duty, 396 SOLICITOR, accounting for client's money, 246 accounts between, and London agent, 24S negligence of, 247 concealment of, 301 receipt of trust money by, 275 summary jm:isdiction over, 278 when treated as trustee, 278. See Costs SPECIAL DAMAGE, 203, 398 SPECIALTY CONTRACT, breach of, 202 SPECIALTY DEBT, acknowledgment of, 328 charged on land. 156, 196 by wiU, 158, 368 limitation on, 194 part payment of, 355, 357 effect of, 364 SPECIFIC PERFORMANCE, 252, 270 SPECULATIVE PROPERTY, constructive trust of, 268 SPIRITUAL CORPORATION SOLE, 12 STAMP DUTY, exemption of acknowledgment from, 344 STATUTE, acts done in pursuance of, 392 liability under, 195 STATUTE-BARRED DEBT, retention of, 210 revival of, by part payment, 377 [ 18 ] INDEX. STATUTE OF LIMITATIONS, cessation of, 11 mode of operation of, 10, 205 runs without interruption, 207 stopping the, 308 suspension of, 207 STATUTORY DUTY OR POWER, acts done under, 387, 390, 394 STATUTORY POWER, person exercising, 391, 393 STRANGER, payment by, 360 SUBSIDENCE, damage by, 204 SUCCESSION DUTY, limitation on, 225 in favour of purchasers, 163 SUCCESSIVE ESTATES in same person, 59 SUCCESSORS in title, statute runs against, 9 SUITS, abolition of distinction between actions and, 9 SUMMARY proceedings, limitation on, 412, 413 SURETY, acknowledgment, effect of, against, 336 action against, 231 part payment, effect of, against, 355, 369, 373 as to specialty debts, 855, 357 simple contract debts, 382 payment of annuity by, 28 SURFACE LAND, title to, by possession, 18, 41 TENANCY, at will, creation of, 99 determination of, 99 new, creation of, 101, 102 operation of statute on, 97 re-entry during, 100 for years, 105 from year to year, 102 in common, possessory title to, 119 TENANT, encroachments by, 108 operation of statute in favour of, 96 possession of, 16 withholding of rent by, 105 TENANT FOR LIFE, acknowledgment by, 337 alienation by, 52 entitled to charge on land, 87 mortgagee becoming, 90 of mortgage debt, payment of interest to, 303 owner of charge on the land, 301 pa>Tiient by, 360, 372 on simple contract debt, 386 proviso for redemption on death of, 181 TENANT-IN-TAIL, death of, out of possession, 62 defective asHurance by, 63 preceding life interest of, 65 restrained from alienating, 11 TERM OF YEARS, adverse occupation during, 110 existence of, in equity, 106 operation of statute on, 105 truHt or mortgage, reversion on, iy.i [ I'J J INDEX. TIME, not enlarged to save statute, 311 request for, promise implied from, 347 when a bar in equity, 261 TITHE EENT-CHARGE, arrears of, 175, 177 barred by non-payment, 27 claim to, not a specialty, 195 effect of order for sale on, 318 TITHES, exemption frora, 20 operation of time on, 19 non-pajonent of, 20 rival claimants to, 19 TITLE, covenants for, action on, 202 devolution of, 9 extinction of, 10, 116 TORT, limitation in, 191 in favour of public authorities, 388 survival of actions of, 226 TRESPASS, accrual of action for, 201, 399 underground, 300 TRESPASSERS, successive, title as between, 124 TRUST, for sale, mortgage by way of, 72, 155 extinguished by bar to trustee, 81, 83 money, loan of, 275 stranger receiving, 275 term, reversion on, 53 TRUSTEE, account against, 284 bar to, effect of, 79 de son tort, 73, 274 death of, does not make statute run, 274 disseisin of, by cestui que trust, 76 by stranger, 79 entry of, to raise charge, 162 fraud of, 281 operation of statute in favour of, 68 under Trustee Act, 1888 . . 280 payment of statute-barred debt by, 211 possession of stranger adverse to, 79 under, 79 property misappropriated by, 282 retained by, 281 purchaser from, 69 setting aside purchase by, 263 wrongful receipt of rents from, 82 TUNNEL, possession of, 18 UNDERGROUND trespass, when statute excluded, 300 UNDERLESSEE, payment of rent to lessor by, 104, 238 surrender, effect of, on, 111 [ 20 ] INDEX. UNPAID PURCHASE MONEY, lien for, 155, IGO on personalty, 180 UNSOUNDNESS OF MIND, disability of, 287, 290 effect of, as to concealed fraud, 303, 307 USE AND OCCUPATION, rent for, -lU VACANT POSSESSION at death, 50 VENDOR'S LIEN. Sec Unpaid Purchase :Money VESTING ORDER by Irish Land Commission, 317 VOID LEASE. See Lease WARRANT OF ATTORNEY, debt secured by, 19G WASTE, claim to proceeds of, 65 equitable, 67 legal, 66 WAY of necessity, 117 WELSH 3I0RTCtAGE, 90 WIFE, ante-nuptial debt of, 207 WILL, acknowledgment by, 331 charge of debts by, on personal estate, 158 real estate, 158 WINDING UP, 319 WISH TO PAY, promise implied from, 350 " WITHOUT PREJUDICE," prevents acknowledgment, 348 WORK DONE, action for, 249 WORKMAN, compensation to, 250 WRIT, amendment of, 308 concurrent, 312 failure to renew in time, 311 issue of, 308 renewal of, 310 WRONGS, classification of, 192 YEARLY TENANCY, creation of, 103 entry of stranger during, 120 operation of statute on, 102 I'lll': END. T.L.A. 2 I I'liFNTED I;Y WILLIAM CLOWES AND SONS, LIJIITKD, LONDON AND BECCLES. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. MAY 8 1974 AUG 3 1978 Form L9-Series 444 AA 000 770 860 5 iiiiiiii'^^ ilUfll.li.llllll'IMIMMIIIIIIIIIIMtlllllllllMIIIIJilllillliMlllllllllMIIIIII Mill illliHillllilllllllllllliliili nil llilliillii III ii Mil. .1,11. 1 I PPilif