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~ <t' S V 
 
 333/92) 
 
 PKISTED BT 
 
 WILLIAjr CLOWES AND SONS, LIMITEUj 
 
 LONDON AND EECCLES.
 
 PREFACE 
 
 The present work is founded on a chapter on the Real 
 Property Limitation Acts, 1833 and 1874, which formed 
 part of "Possession of Land," published in 1894. I 
 have now filled in the outline there suggested, and 
 have included the other Statutes of Limitation, and I 
 have attempted an analysis of the equitable doctrine of 
 laches. 
 
 Inasmuch as the subject depends so much on statute 
 law, I have inserted the various enactments in their 
 appropriate places in the text, but the entire statutes are 
 given, for the sake of reference, in the Appendix. This 
 method, however, has had to be varied in the case of the 
 Nullum Tempus Acts, which still cumber the Statute 
 Book in unregenerate form, and in the text I have stated 
 the principal provisions in shorter and more intelligible 
 lano;uai?e. 
 
 The subject of dispossession is of both theoretical and 
 practical importance, and I have endeavoured to state the 
 eff'ect of the authorities in a series of rules which, I hope, 
 may be found useful. In other parts of the l)Ook recent 
 decisions have materially assisted my task ; in particular, 
 Perry v. CUhhoU, [1907] A. C. 73, which has affirmed 
 the validity of possessory titles as against strangers ; 
 lie Nishet and Poffs Contract, | 1906] 1 Ch. 38G, which 
 has given equitable titles an existence of their own,
 
 vi PREFACE. 
 
 independent of the legal title ; and Re Lacey, [1907] 
 1 Ch. 330, which has terminated a long-existing doubt 
 as to the effect of part payment in keeping alive the 
 remedies for specialty debts charged on land. The whole 
 subject of acknowledgment and part payment is left by 
 the statutes in a state of some confusion, and, as the last- 
 mentioned case shows, successive changes in the law have 
 produced anomalous and undesigned results. I have 
 attempted to arrange the statutory provisions and the 
 cases on these heads so as to simplify the matter as far 
 as possible ; and on the subject of the book generally 
 I hope that all the authorities of practical importance 
 will be found to be included. Separate treatment has 
 been given to the Public Authorities Protection Act, 
 1893, and in the chapter on Criminal, Crown, and 
 Summary Proceedings I have arranged in tabular form 
 the various limitations on Criminal Proceedings, so far 
 as I have been able to collect them. 
 
 Custom permits the various enactments which impose 
 time limitations on legal proceedings to be spoken of as 
 " The Statute ; " but, in fact, they cover a period of some 
 three hundred years, and their effect depends upon a 
 great and continually increasing accumulation of case law, 
 and upon numerous legislative amendments. It may be 
 suggested that the time has come when all the statutory 
 , provisions might with advantage be consolidated and 
 harmonized so as to realize the idea of a " Statute of 
 Limitations." 
 
 JOHX M. LIGHTWOOD. 
 
 Lin'coln's Ink, 
 
 Jumuinj, 10O9.
 
 CONTENTS. 
 
 Table of Cases 
 Table of Statutes 
 
 Introduction ..... 
 
 (1) Policy of the Statutes of Limitation 
 
 (2) Construction of the Statutes . 
 
 (3) Pleading the Statute 
 
 PAGE 
 XV 
 
 Iv 
 
 1 
 1 
 
 2 
 3 
 
 CHAPTER I. 
 
 SECT. 
 I. 
 
 II. 
 
 III. 
 
 LAND AND RENT-CHARGES. 
 
 General Rule op Limitation 
 
 (1) Adverse Possession under Old Law 
 
 (2) Adverse Possession under Present Law 
 
 (3) Rule of Limitation 
 
 (4) Statute runs against Successors in Title 
 
 (5) Operation of Statute 
 
 (6) Cessation of Statute 
 
 (7) Church Lands 
 
 (8) Advowsons .... 
 (!)) Accrual of Right of Action . 
 
 Subject Matter of K. P. L. A., 1874, s. 1 
 
 (1) Land 
 
 Interests in Land 
 
 Mines .... 
 
 Tithes .... 
 
 (2) Rent-charges 
 
 Rent-service and Rent-charge 
 Heriots .... 
 Periodical Sums charged on Laud 
 
 Present Interesis .... 
 
 (1) Dispossession of Land . 
 
 (i.) Possession by A^'ent 
 (ii.) Possessiou by Co-owuer 
 (iii.) DisitoHsession uiul Discontinuance of Possession 
 Rules for ])isp(i8se8siou 
 
 (2) Discontiiiuunee of Receipt of Rent 
 
 (3) Failure to take Possession 
 
 6 
 
 7 
 8 
 9 
 10 
 11 
 12 
 14 
 15 
 
 17 
 17 
 17 
 18 
 19 
 21 
 21 
 24 
 26 
 
 29 
 29 
 29 
 32 
 33 
 35 
 •16 
 49
 
 vm 
 
 CONTENTS. 
 
 SECT. 
 
 IV. 
 
 YI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 Future Interests ...... 
 
 (1) Statute runs from Interest falliug into Possession 
 
 (2) Previous Possession by Remaindermah . 
 
 (3) OwTier of Particular Estate out of Possession . 
 
 (4) Re-settlement while Statute running 
 
 (5) Forfeiture ....... 
 
 (6) Effect of Extinction of Particular Estate 
 
 (7) Successive Estates in same Person . 
 
 (8) Estates Tail 
 
 (9) I'roceeds of Waste ...... 
 
 Trcstee and Cestui Que Trust .... 
 Operation of the Statute in Favour of — 
 
 (1) Trustee against Cestui que Tiitst . 
 
 (i.) Express Trusts .... 
 
 (ii.) Constructive and Resulting Trusts 
 (iii.) Charities ..... 
 
 (2) In Favour of Cestui que Trust against Trustee 
 
 (i.) Express Trusts .... 
 (ii.) Constructive Trusts .... 
 
 (3) In Favour of Stranger .... 
 (■4) In Favour of one Cestui que Trust against the Rest 
 
 Mortgagor and Mortgagee . 
 
 (1) In Favour of Mortgagor 
 
 (2) In Favour of Mortgagee 
 
 (3) In Favour of Stranger . 
 
 Lord and Copyholder • 
 
 (1) In Favour of Lord 
 
 (2) In Favour of Copyholder 
 
 (3) In Favour of Stranger . 
 
 Landlord and Tenant . 
 
 (1) In Favour of Tenant 
 
 (i.) Tenancies at Will . 
 
 Creation and Determination of Tenancy at Will 
 Re-entry • 
 
 Creation of New Tenancy 
 (ii.) Yearly Tenancies . 
 (iii.) Terms of Years 
 (iv.) Encroachments by Tenant 
 
 (2) In Favour of Strangers . 
 
 (i.) Adverse Occupation 
 (ii.) Adverse Receipt of Rent 
 
 Possessory Titles 
 
 (1) Continuous Possession for Statutory Period 
 
 The New Title . 
 Possessory Leasehold Title 
 
 (2) Non-continuous Possession 
 
 Title in Ejectment 
 
 (3) Title by Receipt of Rent 
 
 (4) Limited Estate under Possessory Title 
 
 (5) Title to Compensation under Lands Clauses Act, 1845 
 (G) Effect of Registration of Title on Acquisition of Title by 
 
 Adverse Possession . . . . . . ... 
 
 133
 
 CONTENTS. 
 
 IX 
 
 SECT. 
 
 X. 
 
 Crown Lands ...... 
 
 (1) Possession agaiust Crown 
 (•2) The Nullum Tempus Acts 
 
 (i.) Present Interests in the Crown 
 
 (A) Limitation of Action 
 
 (B) Establishment of Adverse Title 
 (ii.) Future Estates in the Crown . 
 
 (iii.) Saving Clauses .... 
 (iv.) Effect of Nullum Tempus Acts 
 (3) Duchy of Cornwall .... 
 
 PACE 
 
 140 
 140 
 143 
 143 
 143 
 147 
 148 
 150 
 152 
 152 
 
 CHAPTER II. 
 
 II. 
 
 III. 
 
 MONEY CHARGED OX LAND, JUDGMENTS, AND LEGACIES. 
 
 Kule of Limitation . . . . . . . . .154 
 
 Sums of Money Charged on Land or Rent . . . .154 
 
 (1) Money subject to R. P. L. A., 1874. s. 8 154 
 
 (2) Remedies which are barred ....... 156 
 
 (3) Date from which Statute runs ...... 159 
 
 (4) Money secured by Express Trust ...... IGl 
 
 (5) Death Duties " 163 
 
 Judgments ........... 1G4 
 
 (1) All Judgments liable to be barred . . . .164 
 
 (2) Date from which Statute runs ...... 166 
 
 Legacies and Intestates' Estates ...... 167 
 
 (1) Legacies and Shares of Residue ...... 167 
 
 (2) Personal Estate of Intestates' 169 
 
 (3) Date from which Statute runs ..... 170 
 
 (4) Legacies held in Trust ........ 172 
 
 CHAPTER III. 
 
 ARREARS OF DOWER, RENT, AND INTEREST 
 Rule of Limitation ...... 
 
 I. Ai;i;ears of Dower 
 II. Arrears of Rent 
 
 III. Arrears op Interest ...... 
 
 (1) Interest on Mortgages. Judgments, and Legacies 
 
 (2) I'osBesBion by Prior Iiicumljrauccr . 
 
 (3) Iieversionary Interests ..... 
 (i) Interest in Redemption and Foreclosure Actions 
 
 I\'. Li.MiT.\TiON ON- Personal Remedies 
 
 174 
 
 174 
 175 
 
 178 
 178 
 179 
 180 
 181 
 
 183
 
 CONTENTS. 
 
 SECT. 
 
 V. 
 
 Account of Eexts and Pkofits 
 
 (1) At I.aw 
 
 (2) In Equity 
 
 PACE 
 
 187 
 187 
 
 188 
 
 CHAPTER IV. 
 
 ACTIONS OF CONTRACT AND TORT. 
 
 I. (Jeneral Rules of Limitatiox .... 
 
 (1) Simple Contract and Tort .... 
 
 (2) Specialty Debts 
 
 (3) Limitations in Ireland ..... 
 
 (4) Extension of Time where Action abortive 
 
 II. Accrual of Cause of Action .... 
 
 (1) Where Action lies without Proof of Special Damage 
 
 (2) "Where Special Damage must be proved . 
 
 (3) Where Damage is Sole Cause of Action . 
 
 III. Matters affecting the Oferation of the Statute 
 
 (1) A Person to sue . 
 
 (2) A Person to be sued 
 
 (3) Punning of Statute is Continuous 
 
 (4) Suspension of Remedy . 
 
 IV. Effect of the Statutory Bar 
 
 (1) Debt not extinguished . 
 
 (2) Deduction by Executor . 
 
 (3) Payment by Executor . 
 
 (4) Statute-barred debts in Bankruptcy 
 
 (5) Debts barred by Foreign Statutes . 
 
 V. Effect of Statute in Partioulak Actions 
 
 (1) Accounts .... 
 
 (2) Action in Rem 
 
 (3) Banking Account . 
 
 (4) Bills of Exchange, Cheques, and Pn 
 
 (i.) Bills of Exchange 
 
 (a) Dislionour by Non-acceptance 
 
 (b) Dishonour by Non-payment . 
 (ii.) Cheques ...... 
 
 (iii.) Promissory Notes ..... 
 
 (5) Conversion and Detention .... 
 (C) Crown Debts ...... 
 
 Death Duties ...... 
 
 Heir Apparent ...... 
 
 (7) Deceased Persons ...... 
 
 Injury to Real Estate of Person since deceased 
 Injury by Person since deceased . 
 
 (8) Executors ....... 
 
 Devastavit ....... 
 
 (9) Extraordinary Traffic Expenses 
 
 (10) Foreign Judgment ..... 
 
 (11) Goods sold ....... 
 
 omissory Notes 
 
 191 
 191 
 
 194 
 197 
 198 
 
 200 
 201 
 203 
 204 
 
 20.5 
 205 
 206 
 207 
 207 
 
 209 
 209 
 210 
 211 
 213 
 213 
 
 214 
 214 
 21 13 
 21tj 
 217 
 217 
 217 
 218 
 220 
 221 
 222 
 224 
 
 226 
 227 
 227 
 227 
 228 
 228 
 229 
 230 
 231
 
 CONTENTS. 
 
 (12) Guarantee .... 
 
 (13) Guardians (Poor Law) . 
 
 
 (14) Indemnity . 
 
 
 Contribution 
 
 
 (15) Libel and Slander 
 
 
 (16) Lunatics 
 
 
 (17) Money lent . 
 
 
 (18) Money paid . 
 
 
 (19) Money received 
 
 
 (20) Partnership Accounts . 
 
 
 (21) Penalties 
 
 
 (22) Personal Property 
 
 
 (23) Principal and Agent 
 
 
 (24) Promise to pay 
 
 
 (25) Eent .... 
 
 
 (2G) Seamen 
 
 
 (27) Set-off .... 
 
 
 (28) Solicitors 
 
 
 (i.) Accounting for Client's 
 
 Mone 
 
 (ii.) Negligence . 
 
 
 (iii.) Costs . 
 
 
 (29) Work done . 
 
 
 (30) Workmen .... 
 
 
 XI 
 PAGE 
 
 231 
 232 
 233 
 234 
 236 
 236 
 237 
 238 
 239 
 239 
 240 
 242 
 243 
 244 
 244 
 245 
 245 
 246 
 246 
 247 
 248 
 249 
 250 
 
 CHAPTER V. 
 
 CLAIMS IN EQUITY. 
 
 r. Where Eqi:ity acts in Analogy to Statute 
 
 II. Where no Statutory Limitation is Applicable 
 
 (1) The Doctrine of Laches 
 
 (i.) Meanings of Acquiescence distinguished 
 
 (ii.) The Elements of Laches 
 (iii.) Whether Laches restricted to Executory 
 (iv.) Knowledge and Freedom Essential 
 
 (v.) Lapse of Time in itself a Bar 
 
 (2) Application of the Doctrine . 
 
 (i.) Purchases liy Trustees, &c. . 
 (ii.) Following Assets . 
 (iii.) Partnership Interests 
 (iv.) Constructive Trusts 
 (v.) Setting aside (Jifts 
 
 (vi.) Specific I'crformance and Rescission of (. 
 (vii.) Claims against Directors 
 
 III. Expkes.s Trusts ..... 
 
 (1) Apart from the Trustee Act, 1888, s. 8 
 
 Persons treated as Exjiress Trustees 
 Trusts for Creditors . 
 
 (2) The Trustee Act, 18S8, s. 8 . 
 
 (i.) Cases cxcepti'd from Statute . 
 (ii.) Persons within tin; Statutt; . 
 (iii.) Opernlioii of Statute 
 
 Interests 
 
 untrai'ts 
 
 251 
 
 252 
 252 
 252 
 255 
 258 
 259 
 261 
 263 
 263 
 266 
 267 
 268 
 269 
 270 
 271 
 
 274 
 279 
 280 
 28! 
 282 
 283
 
 Xll 
 
 CONTENTS. 
 
 SECT. 
 I. 
 
 II. 
 
 CHAPTER VI. 
 
 EXTENSION OF PERIOD OF LIMITATION. 
 
 Disability 
 
 (1) Land and Rent-charges 
 
 (2) Simple Contract, Tort, and Specialty Debts 
 
 (i.) Disability of Plaintiff . 
 
 Simple Contract and Tort . 
 Specialty Debts 
 
 Irish Statute .... 
 Abolition of certain Disabilities 
 (ii.) Disability of Defendant 
 Absence beyond Seas . 
 Joint Debtors .... 
 
 Fraud . . . . • • . • 
 
 (1) Claims in Equity 
 
 (a) "Where no Statute is applicable 
 
 (b) "Where Statute applicable by analogy 
 
 (2) Simple Contract, Tort, and Specialty Debts 
 
 (3) Land and Rent-charges .... 
 
 (i.) Concealed Fraud .... 
 (ii.) Deprivation by the Fraud 
 (iii.) Failure to discover the Fraud 
 
 CHAPTER VIT. 
 
 STOPPING THE STATUTE. 
 I. COMIIEKCEMEXT OF ACTION .... 
 
 (1) Issue and Renewal of Writ 
 
 (2) Administration and Incumbrancers' Actions 
 
 (3) Order for Sale 
 
 (4) Bankruptcy and "Winding-up 
 
 (5) Property under Control of the Court 
 
 Appointment of Receiver . 
 
 II. ACKXOAS-LEDGMENT AKD PaKT PaTJIENT . 
 
 Statutory Provisions .... 
 Pleading Acknowledgment and Part Payment 
 I. Acknowledgment ..... 
 
 (1) Land, Money charged on I^and, and Specialty Debts 
 
 (i.) By whom Acknowledgment must be made 
 (ii.) To whom Acknowledgment may be made 
 (iii.) Form of Acknowledgment 
 (iv.) Construction of Acknowledgment 
 (v.) When Acknowledgment may be made 
 (vi.) Effect of Acknowledgment 
 
 Several Mortgagors or Mortgagees 
 
 (2) Simple Contract Debts .... 
 
 (i.) The Doctrine of Implied Promise 
 (ii.) By and to whom Acknowledgment must be made
 
 CONTENTS. 
 
 XIU 
 
 (iii.) Form of Acknowledgment 
 
 (iv.) Construction of Acknowledgment 
 
 Promise implied from Unqualified Acknowledgment 
 
 Request for Account ..... 
 
 Eequest for Time ...... 
 
 Circumstances excluding Promise . 
 
 Personal Promise excluded .... 
 
 Admission in Bankruptcy .... 
 
 Mere Wish to pay ..... 
 
 Express Promise to pay .... 
 
 Prouiise conditional on Ability 
 
 on Receipt of Specified Funds 
 (v.) When Acknowledgment may be given 
 (vi.) Effect of tlie Acknowledgment 
 
 Co-contractors ...... 
 
 II. Part Payment ........ 
 
 General Principles ...... 
 
 (1) Mortgages and Specialty Debts .... 
 
 (i.) By whom Payment may be made 
 (ii.) Mode and Proof of Payment .... 
 (iii.) To whom Payment may be made 
 (iv.) The Effect of Payment 
 
 (A) Payments which keep alive Mortgage as against 
 
 the Land 
 
 (B) Payments which keeji alive I'ersoual Remedies 
 
 for Mortgage Debts 
 
 (C) Payments -which keep alive Remedies against 
 
 Free Assets of Deceased Specialty Debtor 
 
 (D) Payment by a Co-debtor 
 
 (2) Simple Contract Debts 
 
 (i.) Implied Promise 
 (ii.) Proof of Payment . 
 (iii.) By whom Payment may be made 
 (iv.) To whom Payment may be made 
 (v.) Effect of Payment . 
 
 Co-debtors .... 
 Person filling different Characters 
 Against Real and Personal Estate of Deceased 
 Debtor .... 
 
 PAGE 
 
 343 
 345 
 34t; 
 34(j 
 347 
 348 
 349 
 349 
 350 
 350 
 351 
 351 
 352 
 353 
 353 
 354 
 354 
 357 
 357 
 361 
 363 
 3(J4 
 
 306 
 
 368 
 
 370 
 373 
 374 
 374 
 379 
 380 
 381 
 381 
 381 
 383 
 
 385 
 
 CHAPTER VIII. 
 
 PUBLIC AUTHORITIES. 
 Public Autlioritics Protection Act, 1893 . 
 r. Proceedings to "which Act applies 
 II. Persons in ■whose Favour Protection given 
 
 III. Matters in Respect of which Protection Given 
 
 (1) Acts done in pursuance of a Statute 
 
 (2) Acts done in Execution of a Public Office 
 
 (3) Local Authorities ...... 
 
 387 
 
 388 
 
 390 
 
 392 
 392 
 395 
 397
 
 XIV 
 
 CONTENTS. 
 
 SKOT. 
 
 lY. 
 
 Period op Limitatiok . 
 
 Six Months' Limitatiou 
 Continuing Injury 
 Local and Personal Acts 
 Repeal of Fornier Statutes 
 
 PAGE 
 
 398 
 398 
 399 
 400 
 401 
 
 CHAPTER IX. 
 
 CRIMINAL AND CROWN PROCEEDINGS AND PROCEEDINGS 
 BEFORE MAGISTRATES. 
 
 I. Criminal Proceedings ......... 403 
 
 Table of Limitations 403 
 
 Criminal Informations. ....... 406 
 
 II. Crown Proceedings ......... 407 
 
 Quo Warranto 407 
 
 Municipal Office 407 
 
 Certiorari 409 
 
 Mandamus 411 
 
 III. Proceedings before Magistrates ....... 412 
 
 Special Limitations ........ 412 
 
 General Six Months' Limitation on Summary Proceedings . 413 
 Improvement Expenses . . . . . . .414 
 
 APPENDIX. 
 
 Statutes 
 
 419
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Abergavenny, Earl of, v. Brace. L. K. 7 Ex. 145; 41 L. J. Ex. 120; 26 L. T. 
 
 514 ; 20 W. E. 462 ... 11,61,62 
 
 A'Court I'. Cross, 3 Bing. 329 ; 4 L. J. O. S. C. P. 79 348 
 
 Acton i;. Woodgate, 2 My. & K. 492 ; :'. L. J. Ch. 83 279 
 
 Adair V. Shaftoe, cited, 19 Yes. p. 156 ... ... ... ... ... ... 34 
 
 Adams «. Barry, 2 Coll. 285 4 168 171 
 
 V. Batley, 18 Q. B. D. 625 ; 56 L. J. Q. B. 393 ; 56 L. T. 770 • 35 ' 
 
 W. K. 437 ' ... 241 
 
 and Kensington Vestry, 27 C. D. 394 : 54 L. J. Cli. 87: 51 L. T. 382 • 
 
 32W. R. 883 .' 72 
 
 1'. Morgan, 12 L. E. Ir. 1 ... ... ... ... ... 345 
 
 V. Waller, 35 L. J. Ch. 727 ; 14 L. T. 727: 14 W. R. 789 ... ."" 212 
 
 Adnam v. Earl of Sandwich, 2 Q. B. D. 485 ; 46 L. J. Q. B. 612 .. 47, 48 304 
 
 Affleck V. Mayor of Keighley, 2 T. L. R. 864 '394 
 
 Agnew V. Jobaon, 47 L. J. M. C. 67 ; 13 Cox, C. C. 625 ; 42 J. P. 424 ... 395 
 
 Alaearne 1;. M'Swiney, Ir. R. 8 C. L. 568 ... 238 
 
 Akerman, Re, [1891] 3 Ch. 212; 61 L. J. Ch. 34; 65 L. T. 194; 40 wV R. 12 ' 210 
 
 Alden v. Gregory, 2 Eden, 280 .. 297 
 
 Alderson v. White, 2 De G. & J. 97 ; 6 W. R. 242 ; 4 Jur. N. S. 125 ... 91 
 
 Alexandra Palace Co., Ee, 21 C. D. 149 ; 51 L. J. Ch. 655 ; 46 L. T 730 • 30 
 
 W. R. 771 ' ... 272 
 
 Alison, Re, .Johnson v. Mounsev, 11 C. D. 284 ; 40 L. T, 234 ; 27 W. R. 537 72 
 
 Allcard v. Skinner, 36 C. D. 145 ; 56 L. J. Ch. 1052 ; 57 L. T. 61 ; 36 W. r! 
 
 251 257,261,269 
 
 Allen, Re, Basset v. Allen, [1898] 2 Ch. 499 : 67 L. J. Ch. 614; 79 L T ''07 • 
 
 47 W. R. 55 ' 361 
 
 V. England. 3 F. & F. 49 30 
 
 r. Wood, 68 L. T. 143 "■ 81 
 
 Allfrey V. Allfrey, 1 Mac. & G. 87; 10 Beav. 353; 17 L. J. Ch. 30- 11 Jur 
 
 981 ; 13 Jur. 269 • 298 
 
 Alliance Bank v. Carey, 5 C. P. D. 429; 49 L. J. C. P. 781 ; 29 W. R 306 • 
 
 44J. P. 735 195,214 
 
 Alaop r. Bell, 24 Beav. 451 312 317 320 
 
 Alston's Estate, iZe, 5 W. R. 189 ...132 
 
 Alston r. Mincard, 51 Sol. Journ. 132 361) 
 
 V. TroUope, 2 Eq. 205 ; 35 Beav. 466; 35 L. J. Ch. 846 ; 14 L. T. 4.')1 • 
 
 14W. R. 722 ' 212 
 
 Ambler (.Jeremiah) & Sons, Ltd. v. Bradford Corporation, [1902] 2 Ch 5«5 • 
 
 71 L. J. Ch. 744; 87 L. T. 217; 66 J. P. 708 '. :{97 
 
 Ames 1;. Mainwaring, 26 Beav. 583 ... ... ... ... . :j,')8 
 
 Amos V. Smith, 1 II. &C. 2.38; 31 L. J. Ex. 423; 7 L, T. 66; 10 W. iV. 759 '" 377 
 
 Amotti). lloldcn, 18 Q. B. 593; 22 L. J. Q. B. 14 ... 202 
 
 .Viiderson, Re, Pegler v. Gillatt. [1905] 2 Cli. 70; 74 L. J. Cli. 433-92 L T 
 
 725; 53 W. R. 510 ' I3O 
 
 Anderson v. Anderson, 30 Beav. 209 ; 4 E. T. 198; 9 \Y R 492- 7 .lur N S 
 
 1W7 • ..; •..; 65 
 
 Andrews V. Drever, 3 CI. & F. 314 20 
 
 V. Ilailes, 2 E. & B. 319 ; 22 L. J. Q. B. 409 ... ..'. ..'. 108, 109
 
 xvi TABLE OF CASES. 
 
 Anglo-Ifalian Bank v. Davies, 9 C. D. 275 ; 47 L. J. Ch. 833 ; 30 L. T. 244 ; 
 
 27 W. K. 3 ... ^ ..J 
 
 ADgrove t). Tippett, 11 L. T. 70S ••• ••■ 
 
 Anon, 1 Vern. ~ ' 
 
 16 
 350 
 301 
 
 312 
 
 196 
 343, 378 
 14 W. K. 26; 11 Jur. 
 
 PAGE 
 
 164 
 234 
 208 
 
 mi' 1 h'& (i 664;' 32 L. J. Ex. 88: 7 L. T. 718 ; 11 W. 11. 293 310 
 
 ,'24L. J. Q. B. 23; 3W. R. 74; 18 Jur. 1104 310,311 
 
 > 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. Howar<l, 2 Br. & B. 73 ; 4 Moore, 508 247 
 
 1). Newall, 2 My. ct Cr. 5.58 208 
 
 Browne r, Cavendi«h, I Jo. A: Lat. 606 279 
 
 «. Cork, Bishop of, 1 Dr. >V; 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<r, 10 Ring. 480; 3 L. J. C. P. 159 
 
 Clarke r. Clarke, Ir. K. 2 C. L. 395 
 
 r. Figes, 2 Stark. 234 
 
 
 254 
 
 ;; 
 
 237 
 
 T. 
 
 
 
 2'.i7 
 
 
 126 
 
 IT'.i 
 
 ', 37S 
 
 
 :isi 
 
 
 196
 
 xxii TABLE OF CASES. 
 
 TAGB 
 
 Clarke v. Hart, G H. L. C. 633 ; 27 L. J. Ch. G15 ; 5 Jur. N. S. 447 ... 258 259 
 
 2b7, 2bo 
 
 V. Lewisham Dist. Council, 19 T. L. R. 62; 67 J. P. 19.5; 1 L. G. E. 
 
 go __ _ ... ... ... ... ... b89 
 
 r. Smitb','2 H. & N. 753; 27 L. J. Ex. 155 308 
 
 Clarkson r. Henderson, 14 C. D. 348 : 49 L. J. Ch. 289 ; 43 L. T. 29 ; 28 ^\ . 
 
 R.907 {^0 
 
 Clayton t-. Blakey, 8 T. R. 3 ."-l!;^ 
 
 Cleave i: Jones, 6 Ex. .573 ; 20 L. J. Ex. 238 ; 15 Jur. 515 3/9 
 
 Clegg ^;. Doarden. 12 Q. IJ. 576 -"^ 
 
 r. Edmondsori, 8 D. M. & G. 787 ";^ Z-a 
 
 Clendinnin-. Olr. Ch. R. 2S4 •• '^1^'pVJo ' 
 
 Clifden, Lord. R.', Annalv r. Agar-Ellis. [1900] 1 Ch. 774; 69 L. J. Ch. 478 ; 
 
 82L. T. 558; 48 W.'R. 428 ^''^' ?^a' oVo 
 
 Clinton I'. Brophy, 10 Ir. Eq. R. 139 ^ ••• ^ 159, 21Z 
 
 Coburn r. Coliedoe, [1897] 1 Q. B. 702 ; 60 L. J. Q. B. 462 ; 76 L. T. bOS ; 45 
 
 W. R. 488 ^*^ 
 
 Cochrane y. Rvmill. 27 W. R. 770 f^- 
 
 Cock r. Gent, 12 31. &W. 234; 13 L.J. Ex. 24 ••• 401 
 
 Cockburn r. Edwards, IS C. D. 449 ; 51 L. J. Ch. 46 ; 45 L. T. 500 ; 30 W. R. 
 
 440 "^^^ 
 
 Cockerell r. Cholmondelev, 1 R. & M. 418 ; 1 CI. & F. 00 ; Bligh N. S. 120 260 
 
 Cockran r. Welbye, 2Show. 79; 2Mod. 212 ... 197 
 
 Cockrill r. Sparkes, 1 H. & C. 699 ; 32 L. J. Ex. 118 ; 7 L. T. 752 ; 11 W. R. 
 
 428 ; 9 Jur. X. S. 307 349,382 
 
 Coc;gms r. Bennett, 2 C. P. D. 568 399 
 
 Colclongh, Ji'e, 8 Ir. Ch. R. 330 317,31b 
 
 Cole ^. Heydon, 1 L. T. 439 ^^b 
 
 Collingo V. Hey wood, 9 A. & E. 633 ; 8 L. J. Q. B. 98 234 
 
 Collings r. Wade, [1890] 1 L R. 34(1 -^^' ^.^ 
 
 ColliDS c. Banning, 12 Mod. 444 244 
 
 f. Rose, 5 M. & W. 194 ; S L. J. Ex. 273 3J8 
 
 Collinson r. 3Iargosson, 27 L. J. Ex. 305 349,376,37/ 
 
 Collis V. Stack, 1 H. & N. 605; 20 L. J. Ex. 138 345, 347 
 
 Collver V. Willock. 4 Bing. 313 ; 5 L. J. O. S. 0. P. 181 375, 377 
 
 Colvin V. Buckle, 8 M. & W. 680 ; 11 L. J. Ex. 33 231 
 
 Commissioners of Donations r. Wybrants, 2 Jo. & Lat. 182; 7 Ir. Eq. R. 580 71, 7o 
 
 Con-reve t;. Power, 1 Moll. 121 237,315 
 
 Com'iskey r. Bowring-Haubury, [1905] A. C. 84 ; 74 L. J. Ch. 263 ; 92 L. T. 
 
 241 ; 53 W. R. 402 72 
 
 Conlau's Estate. lie, 29 L. R . Ir. 199 53, 87, 160, 317, 362 
 
 Conlanr. Bodkin, 7 Ir.L. R. 467 l^*j 
 
 Conoliy r. Gorman, [1898] 1 I. R. 20 47, 19o, 290 
 
 r. Leahy, [1899] 2 I. R. 344 p8 
 
 Considine ». Considine, 9 Ir. L. R. 400 234 
 
 Consolidated Co. v. Curtis, [1892] 1 Q. B. 495 ; 61 L. J. Q. B. 325 ; 40 W. R. 
 
 420; 56 J.P.505 222 
 
 Cook r. Fountain, 3 Swanst. 585 '72 
 
 r. Leonard, 6 B.&C. 351 393,396,397 
 
 r. Whellock, 24 Q. B. D. 048 ; 59 L. J. Q. B. 329 ; 62 L. T. 675 ; 38 
 
 W. R. 534 ... ... ... ... ••• •• ••• ••• •■• 126 
 
 Coombs V. Bristol and Exeter Ry. Co., 1 F." & F. 206 309 
 
 V. Coombs, 1 P. & D. 288; 36 L. J. P. & M. 21 ; 14 L. T. 035; 15 
 
 W. R. ISO 212 
 
 Coope V. Cresswell, 2 Eq. 100 ; 35 L. J. Ch. 496 ; 14 L. T. 262 ; 14 W. R. 508 ; 
 
 C. A. 2 Ch. 112 ; 36 L. J. Ch. 114 ; 15 L. T. 427 ; 15 AV. R. 242 ... 107, 359, 
 
 304, 372, 373 
 
 Cooper r. Blandv, 1 Bing. N. C. 45 126 
 
 r. Warre, 18 Ir. Jur. 24 80 
 
 Copisr. Middleton,T. & R. 224 235 
 
 Corbett r. Barker, 3 Aust. 755 90 
 
 Cordwell's Estate, Re, White v. Cordwell, 20 Eq. 644 ; 44 L. J. Ch. 740 ... 210 
 Cork & Bandnn Ry. Co. v. Goode, 13 C. B. 826; 22 L. J. C. P. 198 ; 1 "\V. R. 
 
 410; 17 Jur. 555 195 
 
 Cornfield v. Wyndhaul, 2 Coll. 184: 14 L. J. Ch. 375; 9 Jur. 651 168
 
 TABLE OF CASES. XXlll 
 
 PAGE 
 
 Corn ford r. J^mitbard, 5 H. & N. 13 : 20 L. J. Ex. 228 ; 8 W. E. 8 ... 348, 352 
 Cornish, Re, [1806] 1 Q. B. 09 ; 65 L. J. Q. B. 106 ; 73 L. T. 602; 44 W. R. 
 
 161... 283 
 
 I'. Searell, 8 B. & C. 471 1"26 
 
 Cornwall Minerals Ey. Co., Ee, [1897] 2 Ch. 74 ; 60 L. J. Ch. 561 ; 76 L. T. 
 
 832;46W.E.5 195 
 
 Corpus Christi College v. Eogers, 49 L. J. Q. B. 4 ; 44 J. P. 216 HI 
 
 Corv f . Bretton, 4 C. & P. 462 340 
 
 (.ottam V. Partridge, 4 Man. & Gr. 271; 4 Scott N. R. 810; 11 L. J. C. P. 
 
 161 214,215 
 
 Cotterell V. Purchase, Cas. t. Talb. 61 91 
 
 Courtenay V. Parker. 16 Ir. Ch. E. 320 177 
 
 V. Williams, 3 Hare, .539; 13 L. J. Ch. 461 ; afiarnied, 15 L. J. Ch. 
 
 204; 8 Jur. 844 210,349,350 
 
 Coventry i'. Apsley. 2 Salk. 420 201 
 
 Cowper V. Godmond, OBing. 748; 2 L. J. C. P. 162 239 
 
 Cox V. Dolman, 2 D. M. & G. 592 ; 22 L. J. Ch. 427 ; 17 Jur. 97 162 
 
 r. Eeid, 13 Q. B. 558 394 
 
 Coxwell r. Franklinski, IIL. T. 153; 12 W. E. 1072 276 
 
 CoTle I'. M-Fadden. [1001] 1 I. E. 208 120 
 
 Craig i;. Watson, 8 Beav. 427 247 
 
 Crawford r. Cocks, 6 Ex. 287; 20 L. J. Ex. 160 309 
 
 r. Crawford, Ir. E. 2 Eq. 166 ; 16 W. E. 414 347 
 
 Crawley r. Price, L. E. 10 Q. B. 302 ; 33 L. T. 203 ; 23 W. R. 874 103 
 
 Cree i-. St. Pancras Vestry, [1800] 1 Q. B. 603 ; 68 L. .J. Q. B. 380 ; 80 L. T. 
 
 388 380 
 
 Cripps r. Davis, 12 M. & W. 159 ; 13 L. J. Ex. 217 340 
 
 Crouin f. Denehy, Ir. R. 3 C. L. 289 357,359 
 
 Crosley, Be, Munns v. Bum. 35 C. D. 266 ; 56 L. J. Ch. 509 ; 57 L. T. 298 ; 35 
 
 W. E. 700 206,300,315 
 
 Cross, Ee. Harston i: Tenisou, 20 C. D. 109; 51 L. J. Ch. 645 ; 45 L. T. 777 : 
 
 30W. E. 376 ... 267,272,273 
 
 Crumble v. Wallsend Local Board, [1891] 1 Q. B. 503 ; 60 L. J. Q. B. 392 ; 64 
 
 L. T. 490; 55 J. r. 421 205,399 
 
 CuUey r. Tavler.son, 11 A. &E. 1008; 9L. J. Q. B. 288 7 
 
 Cunningham" r. Foot. 3 App. Cas. 074 ; 38 L. T. 880 ; 26 W. E. 858 ... 71, 161 
 
 Curlewis v. Earl of Mornington, 7 E. & B. 283 ; affirmed Ex. Ch., 27 L. .T. Q. B. 
 
 430; 6 W. E. 682; 4.Tur. N.S. 1102 200 
 
 Curtis r. Curtis, 2 Bro. C. C. 620 174 
 
 Curwen r. Milburn, 42 C. D. 424 ; 62 L. T. 278 ; 38 W. E. 40 210, 346 
 
 Cusack 1-. Farrell, 18 L. E. Ir. 404 102 
 
 Cussons, Ltd., 73 L. J. Ch. 20(; 77,118 
 
 D. 
 
 Dabbs c. Humphries, 10 Bing. 446 ; 3 L. J. C. P. 130 344 
 
 Dalton V. Fitzgerald, [1897] 2 Ch. 86; m L. J. Ch. 604; 76 L. T. 700; 45 
 
 W. E. 685 126,128,129,131 
 
 Daly r. Bloomfield, 5 Ir. L. R. 65 23 
 
 r. Kirwan, 1 Ir. Eq. E. 156 172 
 
 Dane's Estate, fl', Ir. E. 5 Eq. 498 73 
 
 Dauford v. McAnulty, 8 App. Cas. 456; 52 J;. J. Q. B. (^a'1; 40 L. T. 207; 31 
 
 W. E. 817 1 
 
 Dann I'. Spurrirr, 7 Ves. 231 254 
 
 Darbyshire -•. Leigh, [1806] 1 Q. 1!. 554 ; 65 I>. 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<We, 15 Ves. 479 212,213 
 
 Dibb V. Walker, [1893] 2 Ch. 429 ; 62 L. J. Ch. 536 ; m L. T. 610 ; 41 W. R. 
 
 427... 3.58,359,369 
 
 Dickenson i-. Teasdale,' 1 D. J. & S.' 52 ; 32 L. J. Ch. 37 ; 7 L. T. 655 ; 9 Jur. 
 
 X. S. 237 71,162,364,368,372 
 
 Dickson i'.'Capes, 11 ir. C. L. R. 334 ^12 
 
 Diggles, Et\ Gregory r. Edmondson, 39 C. D. 253 ; 59 L. T. 884 72 
 
 Dillon V. Cruise, 3 Ir. Eq. R. 70 159,161 
 
 ?•. Parker, Jac. 505 ^^ 
 
 Dingle r. Coppen, [1899] 1 Ch. 726 ; 68 L. J. Ch. 337 ; 79 L. T. 693 ; 47 ^V. R^ 
 
 279... ... ... ... ... ... .•• ••• ••• ••• 182,211 
 
 Dix r. Burford, 19 Beav. 409 1"2 
 
 Dixon, Ee, Hevnes r. Dixon, [1900] 2 Ch. 561 ; 69 L. J. Ch. 609 ; 83 L. T. 129 ; 
 
 48W. R. 665 276.362,377 
 
 r. Batv, L. R. 1 Ex. 259; 14 W. R. 836; 12 Jur. N. S. 1024 110 
 
 r. Gayfere, 17 Beav. 421 ; 23 L. J. Ch. 60 124,320 
 
 V. Holroyd, 7 E. & B. 903 ; 27 L. J. Q. B. 43 ; 5 W. R. 688 ; 3 Jur. X. S. 
 
 213 244 
 
 t'. Xuttall, 1 C. M. & R. 307 222 
 
 Dodson «. Mackev, 8 A. & E. 225 n. 3o0 
 
 Doe r. Angell, 9 Q. B. 328 ; 15 L. J. Q. B. 193 ; 10 Jur. 705 ... 23, 97, 103, 112 
 
 r. Barnard, 13 Q. B. 945 ; 18 L. J. Q. B. 306 121,123,125 
 
 --r. Barton, 11 A. &E. 307 So 
 
 r. Beckett, 4 Q. B. 601 ; 12 L. J. Q. B. 236; 7 Jur. 532 104 
 
 — - r. Bell, 5 T. R. 471 103 
 
 — - r. Benham, 7 Q. B. 976; 14 L. J. Q. B. 342 ; 9 Jur. 662 22, 103 
 
 r. Billett, 7 Q. B. 983 ; 14 L. J. Q. B. 343 ; 9 Jur. 663 22. 103 
 
 r. Bold, 11 Q.B. 127; 13 Jur. 871 V 
 
 ;■. Bramston, 3 A. & E. 63 ; 4 L. J. K. B. 166 34 
 
 /•. Brightweu, 10 East, 583 7 
 
 r. Brown, 7 A. & E. 447 126
 
 TABLE OF CASES. XXV 
 
 PAGE 
 
 Doe ^•. Carter, 9 Q. B. 863 ; 18 L. J. Q. B. 305 07,121 
 
 r. Coombes, 9 C. B. 714 ; lit L. J. C. P. 306 11.12 
 
 P. Cooper. 1 M. & Gr. 135; 1 Scott N. R. 36; 9 L. J. C. P. 229 107 
 
 i\Cox, 11 Q. B. 122; 17L. J. Q. B. 3 103 
 
 c. Crago, 6 C. B. 90 ; 17 L. J. ('. P. 263 103 
 
 r. Danvers, 7 East, 299 112 
 
 r. Dyball, Moo. & M. 346 n 120 
 
 r. Edmonds. 6 M. & W. 295 56,334,345 
 
 l: Eyre, 17 Q. B. 366 ; 20 L. J. Q. B. 431 ; 15 Jur. 1031 8. 92, 367 
 
 1-. Finch, 4 B. & Ad. 283 16 
 
 r. Flynn, 1 C. 31. & E. 137 107 
 
 -y. Godshill, 4 Q. B. 603 n. (l»); 5 Jur. 170 113 
 
 V. Gower, 17 Q. B. 589 ; 21 L. J. Q. B. 57 ; 16 Jur. 100 103 
 
 i: Groves, 10 Q. B. 486: 16 L. J. Q. B. 297 ; 11 Jur. 558 101 
 
 i. Harlow, 12 A. & E. 40 187 
 
 r. Helier, 3 T. E. 162 93 
 
 r. Jauncev, 8 C. & P. 99 125 
 
 1-. Jones, iO B. &C. 718 99 
 
 t'. Jones, 15 M. & W. 580 108.109 
 
 — V. Lightfoot, S M. & W. 553 ; 11 L. J. Ex. 151 ; 5 Jur. 966 86 
 
 r. Liversedge, 11 M. & W. 517 ; 13 L. J. Ex. 61 .52, 61 
 
 r. Maisey, 8 B. & C. 767 85 
 
 r. Martin. Car. «&: M. 32 120 
 
 /•. Massey, 17 Q. B. 373; 20 L. .J. Q. B. 434; 15 Jur. 1031 ... 8. 92, 110 
 
 ^. Moore. 9 Q. B. 555 ; 15 L. J. Q. B. 324 ; 10 Jur. 815 56 
 
 V. Morris, 2 Bing. N. C. 189 : 4 L. J. C. P. 285 141 
 
 n Moulsdale, 16"M. & AV. 689; 16 L. J. Ex. 169 59 
 
 c. MuUiner, 1 Esp. 460 108 
 
 r. Oxenham, 7 M. & W. 131 ; 10 L. J. Ex. 6 ; 4 Jur. 1016 ... 105, 113 
 
 r. Phillips, 10 Q. B. 130 : 16 L. J, Q. B. 269 : 11 Jur. 692 76 
 
 r. Eedfern, 12 East, 96 . ... 140 
 
 f. Rees, 6 C. & P. 610 lu8 
 
 c. Eoberts. 13 M. & AV. 520: 14 L. J. Ex. 274 141 
 
 r. Rock, Car, & M. 549 ; 4 Man. & Gr. 30; 6 Jur. 266 ... 77 
 
 r. Rolfe, 8 A. & E. 650 .. 52 
 
 V. Scott, 4 B. & C. 706 ; 7 D. & E 190 ; 4 L. J. 0. S. K. B. 39 ... ... 52 
 
 — - r. Smythe, 4 M. & S. 347 ... 126 
 
 *•. Stanion, 1 M, & W, 695 107 
 
 f. Sumner, 14 M, & AV. 39 ; 14 L, J. Ex. 337 ; 9 Jur. 413 117 
 
 *■, Thomas, 6 Ex. 854 ... ;)9 
 
 r. Thompson, 6 A. & E, 721 ; 6 L. J. K. B. 167 ... . . ... 7 
 
 — r. Tidbury, 14 C. B. 304 ; 23 L. J, C, P. 57 108 
 
 r. Trueman, 1 B. & Ad. 736 93,94 
 
 r. Turner, 7 M, & W. 226 :i7 101 
 
 — r. Watts, 7 T, E. 83 ' 103 
 
 --r. Wells, 10 A. &E. 427 '"■ . 107 
 
 — '•• Wiggins, 4 Q. B. 367; 12 L. J. Q. B. 177 ; 7 Jur. .-)29 126 
 
 /■, Williams, 5 A, & E. 291 ; 5 L. J. K. B. 231 t<6, 154 
 
 r. Wilson, 10 Moo. P. C. 502 . 142 
 
 r. Wood, 14 M. & W. 682 ; 15 L. J. Ex. 41 : 9 Jur. 1060 99 
 
 Don r, Lippmaiui, 5 CI, iV: F. 1 214 
 
 Donegan /-. Ncill, 16 L. E, Ir, 309 ... ..' ... 22,186 
 
 Donolan's Estate, ii'e, [1902] 1 I. E. 10i» 162 
 
 Dooby v. Watson, 39 C. D. 178 ; 57 L. .1. Ch. 865 ; 58 L. T, 943 ; 36 W. 1{, 764 
 
 247, 278 
 
 Dormer r. Fortescuc, 3 Atk, 124 I8S, 189 
 
 Douglas c. Forrest, 4 Bing. 686; 6 J>, 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. 2<J2 ; 16 W. e". 
 
 676 393 
 
 Leigh V. Jack, 5 Ex. D. 264 ; 49 L. J. Ex. 220 ; 42 L. T. 463 ; 28 \V. E. 452 33, 
 
 36,43 
 
 r. Thornton, 1 B. & A. 625 244 
 
 Leland r. Murphy, 16 Ir. Ch. E. 500 346 349 
 
 Levy r. Stogdon, [1899] 1 Ch. 5; 68 L. J. Ch. 19 ; 79 L. T. 364 ' 270 
 
 Lewellin r. Machworth, 2 Eq. Cas. Abr. 579 '[' rcj 
 
 Lewin r. Wilson, 11 App. Cas. 639 ; 55 L. J. P. C. 75 ; 55 L. T. 410 360, 364, 36S 
 Lewis Bowles' Case, 11 Eep. 97 ... ... ... ... ... ... .., ' qq 
 
 Lewis r. Branthwaite, 3 B. & Ad. 437 45 
 
 V. Davis, L. E. 10 Ex. 86 ; 44 L. J. Ex. 86 ; 23 \V. E. 635 ... '." 941 
 
 V. Eee.g, 3 K. & J. 1.32 ; 26 L. J. Ch. 101 ; 5 W. E. 96 ; 3 Jur. X. S. 12 7 
 
 v. Thomas, 3 Hare, 26 3Q3 
 
 Lewis & Son r. Swansea Corporation. W. N. (1887), p. 234 ... '" 3j<9 
 
 Ley V. Peter, 3 H. & N. 101 ; 27 L. J. Ex. 239 ; 6 W. E. 437 '..'. 3->8 
 
 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<ipj,oropolis of Utali, 7.V, 50 L..V Ch "I'l " " .>-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«/<t, 5 Dowl. 717; 1 Jur. 405 279 
 
 lie. Masonic, etc.. Assurance Co. v. Sharps [1892] 1 Cli. 154 ; 61 
 
 L. J. Ch. 193 : 65 L. T. 806 ; 40 AY. E. 241 258,263,275 
 
 Sharpington r. Fulham Guardians, [1904] 2 Ch. 449 ; 73 L. J. Ch. 777 ; 91 
 
 L. T. 739; 52 A\\ E. 617; 68 J. P. 510 233,389 
 
 Sbarpley r. Louth, etc., Ey. Co., 2 C. D. 663 ; 46 L. J. Ch. 259 ; 35 L. T. 71 ... 271 
 Shaw r. Johnson, 1 Dr. & Sm. 412 ; 30 L. J. Ch. 646 ; 4 L. T. 460 ; 9 AY E. 
 
 629 ; 7 Jur. N. S. 1005 182 
 
 1-. Keighron,IIr. E. 3 Eq. 574 113,114 
 
 Shea r. Moore. [1894] 1 I. E. 158 161,366,384 
 
 Sheldon r. AA'eldman, 1 Ch. Cas. 26 276 
 
 Shepherd r. Hills, 11 Ex. 55 ; 25 L. J. Ex. 6 195 
 
 r. Sharp, 1 H. & N. 115; 25 L. J. Ex. 254; 4 AV. E. 570; 2 Jur. 
 
 N. S. 617 401 
 
 Sheppard r. Duke, 9 Sim. 567 ; 8 L. J. Ch. 228 ; 3 Jur. 168 168 
 
 Sherwood r. Hanuan. 17 L. E. Ir. 270 166 
 
 Shewen v. Yanderhorst, 1 E. & M. 347; 2 E. & M. 75; 1 L. J. 0. S. Ch. 107... 211 
 
 Short r. M'Cartby, 3 B. & A. 026 247,326,340 
 
 Shutford & Borouglis Case, Godb. 437 ; sub. nom. Shutford v. Penow, Cro. Car. 
 
 139 202 
 
 Sibbering i). E. of Balcarras, 3 De G. & Sm. 735 265 
 
 Siblev r. Perrv, 7 Ves. 522 168 
 
 Sidwell V. Mason, 2 H. & N. 306 ; 26 L. J. Ex. 407 ; 5 AV. R. 72 ; 3 Jur. N. S. 
 
 649 343,346 
 
 Silkstone, etc., Coal Co. v. Edey, [1900] 1 Ch. 167 ; 69 L. J. Ch. 73 ; 48 W. E. 
 
 137 263 
 
 Simcox V. Handswortb Local Board, 8 Q. B. D. 39; 51 L. J. Q. B. 168; 30 
 
 AA^ R. 723 ; 46 J. P. 260 414 
 
 Simmons v. Rudall, 1 Sim. N. S. 115; 15 Jur. 162 316 
 
 Simpson r. Simpson, 3 L. E. Ir. 308 66,67 
 
 Sims r. Brutton, 5 Ex. 802 ; 20 L. J. Ex. 41 375 
 
 Sinclair /•. Jackson, 17 Beav. 405 87,180,182
 
 TABLE OP CASES. xlvii 
 
 I'AGF, 
 
 Sirdefield f. Price,' 2 Y. & J. Ex. 73 208 
 
 Sittingbourne, &c., Ry. Co. r. Lawson, W. N. (1886), p. 76 27i> 
 
 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 {D<u- V. Jiriiihhrni (1809), 10 East, 583) still holds good: 
 TJiniiias V. 'I'hojitas (1855), 2 K. & J. p. S3 ; Lctris v. Bees (185()),
 
 LAND AND RENT-CHARGES. 
 
 [CHAP. I. 
 
 E. P. L. A., 
 
 1874, 8. 1. 
 No laud or 
 rent to be 
 recovered but 
 within twelve 
 years after the 
 right of action 
 accrued. 
 
 " Person. 
 
 Action to 
 recover land. 
 
 3 K. & J. p. 151. A possession, however, held under title may 
 be adverse, and a possession without title larny, for some 
 purposes, be non-adverse. A tenant at will who holds for more 
 than a year remains tenant at will, and is in possession under 
 that title, yet the statute is running in his favour ; on the other 
 hand, where land is subject to a mortgage, the statute does not 
 run against the mortgagee in favour of a stranger in possession 
 of the land so long as the mortgagor pays interest to the mortga- 
 gee, or, more strictly, such payment of interest continually checks 
 the operation of the statute : ]>or 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), 
 <litTerent from the general law^ of taking tithes in kind : 2 Black. 
 2!) ; 13 Eep. 12 ; Eagle on Tithes, II. 58. It was proved by 
 evidence of the custom, or of the existence of the modus from time 
 immemorial ; but proof of its origin was not required. A compo- 
 sition real was an agreement in writing, after the l)eginning of 
 the reign of Eichard I., and before the disabling statute, 
 13 Eljz. c. 10, between the parson and the parishioners whereby 
 lands, or the yearly profits of lands, or a rent-charge issuing out
 
 20 LAND AND RENT-CHARGES. [CHAr. I, 
 
 of lands, or an annual sum of money or other recompense, was 
 given to the parson in perpetual satisfaction and discharge of 
 the tithes within a parish, township, or other definite quantity 
 of land : Eagle, II. 37. A conventional composition was a 
 temporary agreement between the parson and a parishioner 
 for a payment in lieu of tithes (Eagle, II. 20), and calls for no 
 further notice. Exemption from tithes depended upon the 
 circumstance that, prior to the dissolution of the monasteries by 
 Henry YIII., many of them held their lands discharged from 
 payment of tithes, and in the case of the greater monasteries 
 this exemption was expressly continued by 31 Hen. 8, c. 13, 
 in favour of the Crown, and of all j^ersons to whom the lands 
 might come. Possibly there might be exemption also in the 
 case of the lands of the smaller monasteries : Eagle, II. 274. 
 
 To establish a composition real or an exemption, evidence 
 had to be given, in the one case, of the deed by w'hich the com- 
 position was instituted ; in the other, of the existence of the 
 exemption at the time when the land was held by the monastery. 
 But in either case, although time by itself could not make out 
 a title for the defendant, jei if he could give some slight 
 evidence from which the deed or the original exemption could 
 be presumed, he might support his claim by proof of the length 
 of time during which he had paid the composition or enjoyed 
 the exemption: SalJiCld v. Johnston, 1 Mac. & G. p. 261». 
 Otherwise, however, the mere lapse of time had no effect, and 
 non-payment was not an answer to a claim for tithes, even 
 as against a lay-impropriator : Andrews v. Drcvcr (1835), 3 
 CI. & F. 314. 
 ,p.j.|j^ To avoid the difficulties of proof which thus arose in 
 
 T'rescription cases of claims to tithes, it was provided by the Tithe Pre- 
 scription Act, 1832 (2 & 3 Will. 4, c. 100), that claims (not 
 made against a corj)oration sole) of a modus decimandi, or to 
 exemption from or discharge of tithes, by composition real or 
 otherwise, should be sustainable upon evidence showing, in 
 cases of claim of a )nodtis decimandi, the payment or render of 
 the modus, and in cases of claim to exemption or discharge, 
 the enjoyment of the land, without payment or render of 
 tithes, money, or other matter in lieu thereof, for thirty years ; 
 unless, in the case of a claim of a modus decimandi, the actual 
 payment or render of tithes in kind, or of money or other 
 thing differing from the modus claimed, or in case of claim to 
 
 Act, 1832.
 
 CHAP. I.] EENT-CHARGES. -1 
 
 exemption or discharge, the render or payment of tithes , or of 
 money or other matter in lieu thereof, should be shown to have 
 taken place at some period prior to such thirty years, or it 
 should be proved that such payment or render of modus was 
 made, or enjoyment had, under a consent or agreement by deed 
 or in writing ; but sixty years rendered the claim indefeasible 
 except in the case of such consent in writing. Where the claim 
 was against a corporation sole, the period for rendering it in- 
 defeasible (save in case of consent) was two incumbencies and 
 three years of a third ; unless the two incumbencies were less in 
 length than sixty years, in which case the payment of the nioduH 
 or enjoyment of the land free from tithe had to be shown for sixty 
 years and three years of a third incumbency. It thus became 
 unnecessary to show that a composition or a claim to exemption 
 had a legal origin: Salhdd v. Johnston (1848), 1 Mac. & G. 242 ; 
 and where there was nothing but non-payment of tithes for the 
 prescribed period, this was sufhcient to show that the land was 
 tithe-free. The Act of 1832, by sect. 3, saved suits then com- 
 menced, or which should be commenced during the current 
 session, or within one year after : as to this, see 4 & 5 Will. 4, 
 c. 83. 
 
 But the Tithe Prescription Act, 1832, only bars claims to PaymLnts 
 tithes proper — that is, to render of tithes in kind. It is no bar to tithes!^ 
 to the payment of rates analogous to tithes imposed in the City 
 of London by 37 Hen. 8, c. 12 : rayne v. Esdailr (1888), 13 
 App. Cas. (313 ; or to tithe rent-charge (for which tithes have in 
 general been commuted), or to the payment of a modus or com- 
 position, where a pa3'ment of this nature has been shown to 
 exist. Such payments, however, may be subject to sect. 1 of 
 the l\. V. L. A., 1874, as "rents " {infra, p. 20). 
 
 (2) Hcnt-rJiargcs. 
 
 The E, P. L. A., 1833, defines "rent" as follows .— 
 
 " The word ' rent ' shall extend to all heriots, and to all n. i'. L. A., 
 
 services and suits for which a distress may be made, and to all ^*^'^'f;, ^" 
 
 , . ,. , , , , , , "Rent. 
 
 annuities and periodical sums of money charged ujjou or payable 
 
 out of any land (except moduscs or compositions belonging to a 
 
 spiritual or eleemosynary corporation sole)." 
 
 lient is either rent-service or rent-charge (Litt. s. 213), and iient-scivico 
 eitlier kind of rent might formerly be rent-sec — i.f. rent without ""J!.,*!"'''
 
 22 
 
 LAND AND RENT-CHARGES. 
 
 [CHAr. I. 
 
 years. 
 
 Grant v. 
 Ellis. 
 
 a power of distress — but rent-sec is now abolislied. : Landlord 
 and Tenant Act, 1730 (4 Geo. 2, c. 28), s. 5 ; Conveyancing Act, 
 1881, s. 44. Eent-service is incident to the relation of landlord 
 and tenant, and is in general reserved upon a lease for years ; 
 but it might, before Quia Emptores, have been created on a grant 
 in fee, and it may still be created on a grant in tail or for life 
 or lives, or reserved on a copyhold grant. It is not confined to- 
 money rents : Co. Litt. 142 a ; Doe v. Benliam (1845), 7 Q. B. 976 ; 
 Doe V. Billctt, ihid. p. 983 ; but the rent must be certain or capable 
 of being made so : Co. Litt. 96 a. A rent-charge is created or 
 reserved out of land by deed, will, or statute. 
 Exoiusion of The definition clause is wide enough to include both rent- 
 
 rents reserved charges and all kinds of rent-service, and the question arose 
 
 on leases tor ^ ' ^ 
 
 soon after the passing of the E. P. L. A., 1833, whether sect. 2 of 
 that Act (now sect, 1 of the Act of 1874) applied to conventional! 
 rents reserved upon leases for years. The meaning given in the 
 definition clause may be excluded " where the nature of the pro- 
 vision or the context of the Act " so requires, and it was decided 
 in Grant v. Ellis (1841), 9 M. & W. 113; cf. Paijct v. Eolcif 
 (1836), 2 Bing. N. C. p. 688, that conventional rents are not 
 included for reasons which may be summarized as follows : 
 (i) The statute applies only to rents which can be " recovered "^ 
 against an adverse claimant ; that is, to rents for which an. 
 assize might formerly have been brought ; and only freehold 
 rent-services could have been recovered in this way : see Gilbert 
 on Rents, p. 93 ; Litt. ss. 233, 236, 237-240 ; (ii) under sect. 3. 
 of the Act of 1833 a claimant to "rent" must have been in 
 receipt of it in respect of an estate or interest claimed; but 
 a lessor has no estate in the rent : Prescott v. Boucher (1832), 3 
 B. 1.1' Ad. 849 ; and (iii) if rent reserved on a lease for years were 
 barred, the lessor would have no means of asserting his right to 
 receipt against a stranger who was gaining a title under sect. 9. 
 These reasons are to some extent technical, and the first is 
 open to the objection that it is based on the nature of real 
 actions, a form of procedure which it was one of the objects 
 of the Act of 1833 to abolish ; but the decision in Grant v. Ellis 
 has been accepted as correct : see Donegan v. Xcill (1885), li> 
 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<Jf 
 way bad been set out by inclosure commissioners about 1778. 
 Tbe site of tbe bigbway was witbin a manor, but beyond tbis 
 tbere was notbing to sbow in wbom was tbe title to tbe soil 
 before it was set out. From 1778 tbe bigbway, wbicb was in 
 grass, was let by tbe vestry to persons wbo paid for tbe bire 
 of it and depastured it, tbe money being paid to the surveyor of 
 bigbways and applied to parisb purposes. In 1891 tbe lord of 
 tbe manor, wbo was also tbe owner of allotments adjoining tbe 
 bigbway, claimed tbe soil. Tbe case against liim turned partly 
 upon tbe presumption of a grant to tbe vestry, but it was beld 
 by tbe Court of Appeal tbat, apart from tbis, the vestry had 
 gained a title by tbe Statute of Limitations, subject to the 
 
 West.
 
 42 
 
 LAND AND RENT-CHARGES. 
 
 [CHAP. I. 
 
 No disposses- 
 sion. 
 
 Searbyy. 
 Tottenham 
 By. Co. 
 
 Be Duffy's 
 Estate. 
 
 public right of way. It is to be noticed that, under 59 Geo. 3, 
 c. 12, s. 17, the churchwardens and overseers can hold land on 
 behalf of the parish, and the Court saw no legal difficulty in 
 their gaining a title by possession. 
 
 In the following cases no adverse possession w^as gained : — 
 In Scarh/ v. Tottenham By. Co. (18(38), L. E. 5 Eq. 409, a 
 public road had been constructed by trustees under the powers 
 of an Act of Parliament. They separated it from an adjoining 
 field by a hedge and a bank, and on the field side of these — but 
 upon land belonging to themselves — they made a ditch three feet 
 wide. The case related to the site of the ditch. The evidence 
 showed that in course of time it had become filled up and 
 obliterated, and had never been reopened by the trustees. The 
 owners of the field had always included the hedge in their 
 leases, and the tenants had used the strip within the hedge as 
 part of their field for much more than twenty years, and at their 
 own expense had trimmed the hedge on both sides. During the 
 same time the trustees had not interfered in any way with the 
 site of the ditch. But Wood, V.-C, held that no act adverse to 
 the trustees had been done. The occasional clipping of the 
 hedge was no such act, nor was the circumstance of cattle 
 wandering over the site of the ditch, after it had been filled up, 
 sufficient to raise the statute against the trustees. It was very 
 little that they, as the actual iDOSsessors, could do to the land, 
 and the adjoining owners had not definitely appropriated it 
 either by inclosure or by clear acts of ownership. 
 
 In lie Dufifs Estate, [1897] 1 Ir. R. 307, in C. A. p. 315, 
 land had been in 1863 compulsorily taken by a railway 
 company. In 1875 the railway was finished, but it was 
 defective, and was never used for public traffic. The railway 
 company made no use of it, and the rails were partly torn up. 
 The public, including the owners of adjacent qua3's, passed over 
 the line as they wished. A tenant of the former owner of the 
 land was in the habit of carting his goods over it. It was held 
 that neither the original owner, nor the occupiers of the quays, 
 had acquired a title under the statute. Although there might 
 be absence of possession by the company, yet no actual exclusive 
 possession had been acquired by any one else. With respect to 
 the tenant, it was pointed out that he had a right under the 
 railway Act not to have his communications interruj)ted.
 
 CHAP. I.] DISPOSSESSION. 43 
 
 IV. — Provided that the new possessor has clearly oeaipied, the 
 premises, slight acts on the part of the previous possessor will not 
 prevent ih" dispossession, if, under the circumstances, they are 
 explicahle as being done by permission, or in some other loay not 
 importing the continuance of possession. 
 
 In MarHhaU v. Tai/lor, [1895] 1 Ch. 641, C. A., there were Marshall v. 
 acts of actual user sufficient to give a possessory title. A. and B. '^"^z'"''- 
 were owners of adjacent houses. The gardens were formerly 
 separated by an open ditch, and on A.'s side of the ditch was a 
 hedge. The origin of the ditch was not known. If it was 
 artificial, then according to the usual presumption it belonged 
 to A., the owner of the hedge : Voivles v. Miller (1810), 3 Taunt. 
 137 ; Guy v. West (1808), cited 2 Selw. N. P. 1244 ; if it was 
 not artificial, it was doubtful whether this rule of presumption 
 applied : see per Lindley, L.J., at p. 647. In 1868 A. laid drain- 
 pipes along the ditch, into which he allowed the drainage of both 
 houses to run, and he covered in the ditch. Subsequently the 
 surface of the ditch was used by B, as part of his garden. More 
 than twelve years before the action B. paved part of the surface 
 with cobble stones, and laid cinders on part ; on other parts he 
 planted a rose garden and made a fowl-house. But A. continued 
 to cut his hedge from B.'s side, and twice opened the ditch to 
 clean out the drains. It was held by the Court of Appeal that, 
 assuming A. to have been the owner of the ditch, the acts done 
 by B. were sufficient to dispossess him. The case was regarded 
 as nearer to Norton v. London and North-Western III/. Co. (supra) 
 than to Lei/jh v. Jack (supra), and it was suggested that the acts 
 done by A. were either by permission, or were referable to an 
 easement to go on B.'s land to trim the hedge and clean out the 
 drain. 
 
 V. — If the new pjossession has been taJcen adversely to the former 
 possessor, it extends only over the area ichich has been actually 
 occupied. User of part of the property does not in such a case raise 
 a presumption (f pjossession of the luhde ; otherivise where the neio 
 possession is ivith consent. 
 
 In M'lJoniielJ V. M'Kintji (1847), 10 Ir. L. R. 514, a grant of M-Donneiiv. 
 lands was made in 1738 with a reservation to the grantor of ^''^^"'^y- 
 mines, minerals, and quarries. From that time until the date 
 of the action the grantor and his successors in title did not
 
 44 
 
 LAND AND RENT-CHARGES. 
 
 [CHAP. I. 
 
 Eifective 
 
 possession 
 
 mines. 
 
 Possession 
 with consent. 
 
 make any claim to, or work, or use the quarries ; but it appeared 
 that persons claiming under the grantee had opened and worked 
 quarries in some places, and had ground limestone and burnt it 
 for the use of their lands. It was held that this partial user of 
 the quarries did not confer possession of the whole, so as to 
 extinguish the title under the reservation. " Such a presumption 
 of law," said Blackburne, C. J., " is never made but in favour of 
 right." 
 
 This refusal of the law, in the absence of title, to raise from 
 possession of part of land a presumption of possession of the 
 whole makes it difficult to gain a title to mines under the statute, 
 and in general a stranger only acquires possession of the coal he 
 actually severs : Earl of Dartmouth v. Spittle (1871), 19 W. E. 444 ; 
 but it may be possible for him, by sufficiently marking out the 
 area of his occupation, to acquire possession of an entire seam. 
 "I can well understand," said Hall, V.-C, in Ashton v. Stock 
 (1877), 6 Ch. D. 719, "that there might be cases in which, 
 from the manner of working coal, a person who began to work 
 it, and was a mere wrongdoer and trespasser, might have 
 acquired a title to a certain seam or area of coal, and that, by 
 the mode of driving the levels and opening a certain area of coal, 
 there might have been possession acquired to the whole thing as 
 a mine, or as a seam of coal, and not merely to the particular 
 quantity of coal that was actually hewn and gotten." It is to be 
 noticed that ignorance on the part of an owner, whether of his 
 right {Dawkins v. Lord Pcnrhijn (1877), 6 C. D. p. 324, C. A.), or 
 of the infringement of his right {Rains v. Buxton (1880), 14 C. D. 
 p. 540), does not prevent the operation of the statute ; and a mine- 
 owner may thus lose his title without being aware that the 
 statute was running against him, though as little effect as 
 possible will be given under such circumstances to acts of 
 adverse user. Trespasses committed underground and without 
 the knowledge of the owner of the property " have not the same 
 legal effect as an adverse possession of the surface " : Earl of 
 Dartmouth v. Spittle (19 W. E. p. 445). 
 
 On the other hand, the presumption in favour of possession 
 will be made where the possessor, although in consequence of 
 a defect in the conveyance he obtains no title, yet enters into 
 possession with the consent of the previous possessor. In such 
 a case his entry on part of the mine will give him p3Ssession of 
 all which his predecessor held.
 
 CHAP. I.] DISPOSSESSIOX. 45 
 
 In Lnir Moor Co. v. Stanley Coal Co. (1876), 34 L. T. 18G, Low Moor Co. 
 C. A., certain lands were vested in D. By an indenture of 12th (fo„^ co' 
 July, 1884, he granted, bargained, and sold all the minerals lying 
 under the lands to H. The indenture was not enrolled as a 
 bargain and sale, and there was no livery of seisin to make it 
 operate as a feoffment. There were seven seams of coal and 
 minerals lying mider the lands, and soon after the execution of 
 the indenture H. began to work and get the coal, and continued to 
 do so between 1834 and 1844. He did not, however, go below 
 the first two seams of coal, and, on his ceasing to work in 1844, 
 he left tramways and implements in the tunnels and levels he 
 had made, so that he could, if he chose, have resumed working 
 at any time. In 1855 H. by deed conveyed the minerals 
 (except the two first or upper seams) to the plaintiffs, who 
 shortly after entered, and bored down below the two first seams, 
 in order to try for coal, but they did not work the coal. In 1872 
 the defendants entered and worked the coal in the lower seams, 
 claiming through D. all the seams and beds of coal under the 
 lands, subject to such right or interest as legally passed to H. 
 under the indenture of 12th July, 1834. 
 
 It was held, in trespass brought by the plaintiff's, that H., 
 by entering under the deed of 1834, had obtained possession of 
 the whole of the seams as tenant at will to D., and, the statute 
 running from the end of the first year, his title was complete in 
 1855. " It is true," said Cairns, L.C., "that in cases where a 
 man has entered upon and taken possession of one seam of coal, 
 and by lapse of time has acquired some title to it, the law will 
 not assume that his possession extends to all the other seams of 
 coal lying under that particular one ; but in the case we have 
 before us it was beyond all doubt intended that Holroyd should 
 have possession, and take possession of all the seams." And 
 see Churchcr v. Martin (1889), 42 Ch. D. 312 (supra, p. 35). 
 
 Unless there has been a severance in title between the 
 surface of land and the subjacent mines, possession of the 
 surface gives possession of the mines, even though the possessor 
 may not be entitled to work the latter : Lewis v. Branthicaite 
 (1831), 2 11 & Ad. 437. In Keyse v. Voa-ell (1853), 2 E. & B. 132, p^/" 
 B. was yearly tenant of copyhold lands under which was an 
 unopened mine, and, since the mine had not been reserved, he 
 was in possession of it. In 1821, during this tenancy, the copy- 
 holder demised the mine to B. and P. for ninety-nine years, but no
 
 46 
 
 LAND AND KENT-CHAKGES. 
 
 [CHAP. I. 
 
 Statute runs 
 from last 
 receipt. 
 
 Payment of 
 rent out of 
 part of land. 
 
 entry was made under the demise. In 1832 the yearly tenancy 
 was determined, and the surface of the land was delivered up to 
 the copyholder. It was held that the possession of B. under the 
 tenancy enured in 1821 for the benefit of himself and P., so 
 that they were then in possession under the lease ; and, assuming 
 that the delivery of possession of the surface in 1832 carried with 
 it possession of the mine, yet the statute ran against the right 
 of entry under the term only from 1832, and not as was 
 contended by the copyholder, from 1821. Consequently the 
 assignee of the term was entitled to enter and work the mine in 
 1847. The statute, which had been pleaded by the copyholder, 
 was thus no bar. The Court also held that the possession of the 
 mine did not pass to the copyholder in 1832, but was throughout 
 in B. and P. and their assignee. 
 
 (2) Discontinuance of Receipt of Rent. 
 
 Under sect. 3, clause 1, of the Act of 1833 {supra, p. 29) the 
 statute runs in the case of a rent-charge, not from the date when 
 the right to the rent is in fact violated by an omission to pay on 
 the part of the person liable, but from the last receipt of the 
 rent ; so that, in the case of rent payable annually, the period 
 of limitation is in effect reduced from twelve to eleven years : 
 Owen V. Be Beauvoir (1847), 16 M. & W. 547. But a judgment 
 for recovery of arrears of a rent-charge has been held, on the 
 analogy of Heath v. Pugh (1881), 6 Q. B. D. 345, C. A. ; 7 App. 
 Cas. 235 ; infra, p. 87, to stop the statute and give to the person 
 entitled a fresh period of twelve years to recover the rent-charge : 
 Irish Land Commission v. JunMn (1888), 24 L. E. Ir. 40 ; pro- 
 vided that at the date of the judgment the rent-charge is 
 not already barred: Irish Land Commission v. liijan, [1900] 
 2 I. E. 565, C. A. 
 
 "Where a rent, which is charged upon several parcels of land, 
 has for upwards of twelve years been paid out of part of the 
 land only, there is no discontinuance of receipt as to the other' 
 Xiart so as to discharge it from liability. "A rent-charge is 
 entire, and issues out of all and every portion of the premises 
 charged ; it is therefore an error to say that it has not been 
 received or levied out of one portion of the premises, when it 
 has been duly received during the whole period. The owner 
 cannot apportion the rent, and when it is paid by the occupier 
 of one portion of the premises, it cannot be levied out of any
 
 CHAP. I.] DISCONTINUANCE OF RECEIPT OF RENT. 
 
 47 
 
 other": jx-i' Crompton, J., in Woodcock v. Tltterton, (1864), 
 12 W. E. 865. In that case a rent charged on a farm, consisting 
 of a farmhouse and several fields, had been for upwards of thirty 
 years paid by the occupier of the farmhouse. During that 
 period an outlying field belonging to the farm had been cut up 
 for building and sold in lots to different persons. The plaintiff 
 was the owner of a house erected on one of the lots, and the 
 land on which it was built had been in separate ownership for 
 upwards of twenty years. During that period no acknowledg- 
 ment of the title to the rent was ever made by the owner of the 
 house. Ultimately the defendant, the owner of the rent, claimed 
 the rent from the plaintiff* and distrained on the goods in the 
 house. The Court (Cockburn, C.J., Crompton, Blackburn, and 
 Shee, JJ.) were clearly of opinion that the right to distrain for 
 the rent on this portion of the premises was not barred : 
 cf. Warren v. Batcman (1841), Fl. & Kelly, 448. 
 
 Similarly in Conolly v. Gorman, [1898] 1 I. E. 20, C. A., 
 where tithe rent-charge was charged on land held by different 
 purchasers, the tithe rent-charge owner was not bound to 
 look to the purchasers for separate amounts, and, conse- 
 quentl}^ payment by any one saved the title to the rent-charge 
 as against all. The case is still clearer where on the sale of part 
 of the land the vendor has agreed to indemnify the purchaser 
 against the rent. If the vendor continues to pay it he does so 
 as agent for the purchaser, and there is no discontinuance of 
 receipt of the rent as regards the purchaser's part of the land : 
 Archbishop ofDnhliii v. Cootc (1849), 12 Ir. Eq. E. 251. 
 
 Where there has been an assignment of the entire land, but I'^ym^ut by 
 
 ° , , ' assignor at ler 
 
 the rent continues to.be paid by the assignor, it would seem upon assignment of 
 
 principle that, in the absence of an agreement by the assignor ^'"'"^' ^" 
 
 to indemnify the assignee, there is a discontinuance of the receipt 
 
 of the rent on the part of the owner of the rent-charge, so as to 
 
 make the statute run against him and in favour of the assignee 
 
 of the land. The assignor becomes, upon the assignment, a mere 
 
 stranger as regards the land, and a payment made by him 
 
 cannot be regarded as a payment of rent issuing out of the land. 
 
 There is, therefore, a discontinuance of receipt on the part of 
 
 the rent-charge owner, and the statute should run. It w^as 
 
 considered, however, in Adiiaiii v. Earl oj' Sandwich (1877), 
 
 2 (^). L. D, 485, that, in the absence of knowledge on the part of 
 
 the rent-charge owner of the change of title to the land, this
 
 48 LAND AND EENT-CHAEGES. [CHAP. I. 
 
 would not be so, and that the statute would not run against the 
 rent-charge owner, inasmuch as there had been no negligence on 
 bis part in enforcing his remedy ; and this reasoning was 
 adopted in Irish Land Commission v. White, [1896] 2 I. E. 410. 
 But while the presumed negligence of the owner who remains 
 out of possession is doubtless one of the reasons on which 
 Statutes of Limitation as a matter of general policy are based, 
 the application of the statutes in particular cases does not 
 depend upon this consideration ; and, apart from concealed 
 fraud, it is immaterial whether the owner has been aware or not 
 of his rights, or whether he is fairly chargeable with negligence 
 in enforcing them. It is sufficient that he has been, in fact, 
 not enjoying them, and that a corresponding benefit — whether 
 in the form of possession of land, or receipt of a rent-charge, or 
 non-payment of a rent-charge — has been enjoyed adversely by 
 another. The land may have been again assigned upon the 
 footing of its being free from the rent-charge, and the main 
 object of the statute is to quiet the existing possession. 
 Jditam V. But Adnam v. Earl of Sandiridi was also decided upon the 
 
 EcltI of 
 
 jSandickh. ground of indemnity. Land subject to a fee-farm rent was in 1812 
 conveyed by A. to B. From 1812 to 1872 the rent was paid by A. 
 and his successors in title notwithstanding that they had no 
 interest in the land. The rent-owners were ignorant of the con- 
 veyance to B. In 1872 A.'s successor in title refused to continue 
 the payment of the rent, and the rent-owner sought to enforce 
 it against the then owner of the land. As just stated, the Court 
 (Mellor and Field, JJ.) considered that the rent had not been 
 extinguished because there had been no default on the part of 
 the owners of the rent ; but they also held that under the 
 circumstances it must be presumed that, on the conveyance of 
 the land, there was an arrangement that A. should indemnify B. 
 against the rent, and consequently A. and his successors were to 
 be regarded as having made the payment as agents for B. and 
 his successors. Upon this footing the rent had, of course, as in 
 ArclthisJiop of Duhlin v. Coote {supra), been regularly kept alive. 
 But there seems to have been very little reason for presuming 
 such an arrangement, and it would not be safe to rely upon a 
 similar presumption being made in other cases. It appears to 
 be incumbent upon a rent-charge owner to secure his title by 
 ascertaining from time to time that the person who pays him 
 the rent is entitled to discharge this burden on the land.
 
 CHAr. I.] FAILURE TO TAKE POSSESSION, 49 
 
 (3) Failure to take Possession. 
 
 There may be a failure to take possession of land, or to enter Failure to 
 into receipt of a rent-charge, on the iDart of the owner of the sion/^°^^^^' 
 land or the rent, either (a) where such owner becomes entitled 
 on the death of his predecessor in title who had remained in 
 possession or receipt up to the time of his death ; or (h) where 
 such owner becomes entitled upon a conveyance inter vivos. In 
 the first case his right is deemed to accrue at the time of the 
 death ; in the second case, at the time when he becomes entitled 
 to possession or receipt under the conveyance ; and, if he fails 
 to take possession or enter into receipt, the statute will, as from 
 such dates, run against him. These cases are provided for by 
 clauses 2 and 3 of sect. 3 of the Act of 1833 : — 
 
 " When the person claiming such land or rent shall claim the r, p. l. A. 
 estate or interest of some deceased person who shall have con- 1833, s. 3, 
 tinned in such possession or receipt in respect of the same estate Upon death, 
 or interest until the time of his death, and shall have been 
 the last person entitled to such estate or interest who shall have 
 been in such possession or receipt, then such right shall be 
 deemed to have first accrued at the time of such death. 
 
 " When the person claiming such land or rent shall claim in Clause 3. 
 respect of an estate or interest in possession granted, appointed, Upou aliena- 
 or otherwise assured by any instrument (other than a will) to 
 him, or some person through whom he claims, by a person being, 
 in respect of the same estate or interest, in the possession or 
 receipt of the profits of the land, or in receipt of the rent, and 
 no person entitled under such instrument shall have been in 
 such possession or receipt, then such right shall be deemed to 
 have first accrued at the time at which the person claiming as 
 aforesaid, or the person through whom he claims, became entitled 
 to such possession or receipt by virtue of such instrument." 
 
 The clauses require that the predecessor shall have been in Estate of pre- 
 possession in respect of the same estate or interest as that which s^ccessor^^ 
 the successor claims, and hence the}'- do not applj' in the case of must be the 
 derivative interests carved by will or deed out of a greater 
 interest : James v. Salter (1837), 3 Bing. N. C. 544 ; contra, Lord 
 St. Leonards' Real Prop. Stat., p. 21. Claims in respect of such 
 derivative interests, therefore, are governed by the general 
 provision of sect. 1 of the Act of 1874 : Langton v. Lanriton 
 (1854), 18 Jur. 928 ; Magdalen Eospital v. Knotts (1878), 8 C, 
 D. p. 727, C. A.; Ihigh y. Heath (1882), 7 App. Cas. p. 238. 
 
 T.L.A. E
 
 50 
 
 LAND AND KENT-CHARGES. 
 
 [CHAP. I. 
 
 Effect as to 
 rent-chartres. 
 
 Effect of 
 
 vacant 
 
 possession. 
 
 Effect of 
 subsisting 
 tenancy. 
 
 Title of 
 adminis- 
 trator. 
 
 The distinction is of practical importance witb regard to 
 rent-charges, since the time of accrual of the actual remedy 
 does not accord with the time prescribed by sect 3. Thus if A. 
 has continued in receipt of a rent-charge until his death, and 
 his whole estate or interest therein devolves upon B., time will 
 run against B. from the death, and not from the date when the 
 rent next falls due and is not paid. But if B. takes a rent- 
 charge newly created by A.'s will, or if he takes a particular 
 estate in A.'s existing rent-charge, sect. 3 is excluded, and, 
 under the general principle of sect. 1 of the Act of 1874, time 
 does not run until, upon failure to pay the rent, a right of action 
 or of distress accrues. Similar considerations arise upon the 
 creation inter vivos of a rent-charge, or a grant of a particular 
 estate in an existing rent-charge. 
 
 In the case of land, it has further to be noticed that sect. 3 
 appears to make time run from the death, or from the grant, 
 even though the possession remains vacant : see Hayes' Con- 
 veyancing, I. 248. This, however, is opposed to the principle 
 that the statute only runs where there is a person in whose 
 favour it can run : see McDonnell v. JSPKinty (1847), 10 L. E. 
 Ir. 514 ; Smith v. Lloyd (1854), 9 Ex. 562 ; Trustees Agency Co. 
 v. Short (1888), 13 App. Cas. p. 799 ; and it seems correct to 
 say that the statutory period will only be reckoned from the 
 commencement of an adverse possession. Upon a devise or 
 grant of a limited estate created out of the devisor or grantor's 
 estate, the difficulty would not arise, since sect. 3 does not apply 
 to such a case, and, in accordance with the general principle, 
 the statute would not run till entry by a stranger. 
 
 Clause 2 supposes the deceased person to have been in 
 actual possession at the time of death. Where land is in the 
 possession of a tenant, and the landlord dies, the operation of 
 the statute against his successor in title does not depend upon 
 this clause, but upon sects. 7 to 9 of the Bame Act : Baines v. 
 Lumlcy (1868), 16 W. E. 674. 
 
 An administrator's right of entry on leaseholds does not 
 accrue till the grant of administration, and though, for some 
 purposes, his title is held to relate back to the death of the 
 deceased — so that, for instance, he can maintain trespass 
 {Thorpe Y. Stallwood (1843), 5 Man. & Gr. 760), or bring an 
 action on a contract {Foster v. BcUcs (1843), 12 M. k W. 233), 
 in respect of matters between the death and the grant — yet for
 
 CHAP. I.] FAILURE TO TAKE POSSESSION. 51 
 
 the purpose of the Statute of Limitations, time did not formerly 
 run against him as regards leaseholds {Stanford's case, cited in 
 Saffijn Y. Adams (1602), Cro. Jac. p. 61), and does not now run 
 against him as regards actions of tort and contract {Murray 
 V. East India Co. (1821), 5 B. & A. 204 ; infra, p. 205), until the 
 grant. This is upon the general principle that a cause of action 
 cannot be said to accrue, and consequently time does not run, 
 until there is some person who can sue. As regards leaseholds, 
 however, the law was altered by sect. 6 of the E. P. L. A., 
 1833 :— 
 
 " For the purpose of this Act an administrator claiming the R. P. L. A., 
 
 estate or interest of the deceased person of whose chattels he l^i'"''.^: ^" 
 . . -^ . Adinim- 
 
 shall be appointed administrator shall be deemed to claim as if strutor. 
 there had been no interval of time between the death of such 
 deceased person and the grant of the letters of administration." 
 
 Consequently time runs against an administrator in respect 
 of leaseholds as though the grant had followed immediately on 
 the death : Ee Williams (1886), 34 C. D. 558. 
 
 As regards an executor, no such enactment is required, since Executor, 
 the property of the deceased vests in him upon the death : 
 Woolleij V. Clark (1822), 5 B. & A. 744. In each case, however, 
 the operation of the statute is subject to the general principle 
 that there must be some person in possession in whose favour 
 it can run : siqira, p. 10.
 
 52 
 
 LAND AND RENT-CHAKGES. 
 
 [CHAP. I. 
 
 Section IY. — Future Interests. 
 
 Right of eutry 
 accrues on 
 estate falling 
 into posses- 
 sion. 
 
 A., 
 
 (1) Statute runs from Interest faUinrj into Possession. 
 
 The right of entry or action in respect of a future estate or 
 interest is not deemed to accrue, and the statute, therefore, does 
 not run, until the estate or interest falls into possession. This 
 is provided by clause 4 of the E. P. L. A., 1833, s. 3, while the 
 operation of the rule is further defined by other enactments 
 referred to subsequently. Under the previous statute (21 Jac. 1, 
 c. IG), the same result followed from the provision that time 
 should run from the accrual of the right of entry : Doe v. Scott 
 (1825), 4 B. & C. 706. 
 
 "When the estate or interest claimed shall have been an 
 estate or interest in reversion or remainder, or other future 
 estate or interest, and no person shall have obtained the posses- 
 sion or receipt of the profits of such land or the receipt of such 
 /k^^^^^jC^^ ^^ /^1^'ent in respect of such estate or interest, then such right 
 y^A^ '^ y^^y^ /■/'^^^ be deemed to have first accrued at the time at which 
 ^ ^j^, ' ^ such estate or interest became an estate or interest in possession." 
 
 It follows that where a life tenant purports to convey the 
 fee, and the grantee enters, the statute does not run against the 
 remainderman until the death of the life tenant : Doe v. llolfe 
 (1838), 8 A. & E. 650. In the similar case of Jumjyscn v. Pitchers 
 (1843), 13 Sim. 327, a husband, seised in fee of land in right of 
 his wife, in 1772 conveyed the land to a purchaser by a deed 
 ineffectual to bind the wife's interest. It passed, however, to 
 the purchaser the husband's estate during the coverture, and 
 the wife's interest was turned into a future estate. Against her, 
 therefore, the statute did not begin to run until her estate fell 
 into possession on the determination of the coverture. 
 
 In Doe V. Liversedgc (1843), 11 M. & W. 517, lands were in 
 1798 conveyed to a husband and his wife, and to the heirs and 
 assigns of the husband. The husband absconded in 1805, and 
 vv-as made bankrupt in 1807. The wife remained in possession 
 till her death in 1841. It was held that the husband's 
 remainder in fee was distinct from his life estate, and since it 
 
 R. P. L 
 
 1833, s. 3. 
 clause 4. 
 Future 
 interests. 
 
 Alienation by 
 tenant for 
 life. 
 
 Doe V. 
 
 Liversedge.
 
 CHAP. I.] FUTUEE INTERESTS. 53 
 
 continued to be a future interest till 18^:1, the assignee in 
 bankruptcy was then entitled to claim it. 
 
 Where a mortgage, whether legal or equitable, is created on Mort^a-e of 
 a reversionary interest in land, time runs against the right to interest, 
 foreclose only from the date when the interest falls into 
 possession ; for though the mortgagee can bring a foreclosure 
 action, and procure the extinction of the equity of redemption, 
 while the interest is still reversionary, he does not thereby assert 
 any right to possession of the land. If he defers foreclosure till 
 the interest has fallen into possession, his action is then an 
 action to recover the land, and comes within the rule as to 
 future estates : Hufiill v. Wilkinson (1888), 38 C. D. 480 ; ef. Be 
 Conlan (1892), 29 L. E. Ir. 199 ; Re Lake's Trusts (1890), 63 
 L. T. 416; and see iufra, p. 87. So, too, where an annuity is 
 secured by a term granted by a reversioner upon a life estate, 
 the statute does not run against the term, and consequently 
 against the enforcement of the security, until the determination 
 of the life estate : Snow v. Booth (1856), 8 D. M. & G. 69. 
 
 The reversion upon a term of years is, so far as the right to Reversion on 
 
 ^ . , , trust or 
 
 possession of the land is concerned, a future interest, and the mortgage 
 statute does not begin to run against the reversioner until the *'"''"• 
 reversion falls into possession by the expiration of the term. 
 This general rule is subject to the special provision of sect. 9 of 
 the E. P. L. A., 1833, in the case of adverse receipt of rent. But 
 a term created by way of security for money stands upon a 
 special footing. Until it is enforced and possession is taken 
 under it, the person in whom the land is vested subject to the 
 term is entitled to possession, and, if he fails to enter, or is dis- 
 possessed, the statute runs against him. Thus in Twaddle v. 
 Marplni (1881), 8 L. E. Ir. 123, the existence of a jointure term, 
 which had never been put into operation, did not prevent time 
 from running against the owner of the estate subject to the 
 term. His estate was to be treated as an estate in possession, 
 until, by possession being taken under the term, it became in 
 fact an estate in reversion. 
 
 This distinction appears to account for the decision in Humhiev. 
 JInmldr V. IlnmUe (1857), 24 Beav. 535, where mortgagees of an ^«'"^'''- 
 estate, which was subject to a term of 5000 years vested 
 in trustees to pay debts and legacies, were held to be barred by 
 non-payment of interest and want of acknowledgment from 
 1807 to 1841. Possession had not been taken under the term,
 
 54 
 
 LAND AND RENT-CHARGES. 
 
 [CHAr. I. 
 
 Possession 
 taken under 
 term. 
 
 and the mortgaged interest was therefore not treated as a future 
 interest. 
 
 In Be Bcnningham's Estate (1870), Ir. E. 5 Eq. 147, C. A., an 
 owner in fee created in 1812 and 1814 respectively two terms of 
 200 years and 500 years to secure annuities. In 1822 the first 
 annuitant filed a bill to raise his arrears, and in 1828 a receiver 
 was appointed. This was equivalent to taking possession under 
 the first term, and the interest of the annuitant in the second 
 term thereupon became a future interest. Hence, when in 1868 
 the lands were sold at the instance of the first annuitant, his 
 arrears paid off, and his term brought to an end, the interest of 
 the second annuitant was still unbarred, and he was entitled to 
 be paid out of the surplus proceeds of sale. 
 
 As to proof of the creation of a prior life estate, see Earl of 
 Miltown V. Goodman (1876), Ir. E. 10 C. L. 27. 
 
 R. P. L. A., 
 
 1874, s. 2, 
 clause 1. 
 
 Effect of pre- 
 vious posses- 
 sion. 
 
 Possession 
 prior to the 
 settlement 
 does not 
 prejudice 
 remainder- 
 man under 
 settlement. 
 
 (2) Previous Possession hj Pcmainderman. 
 The rule governing future estates applies notwithstanding 
 previous possession by the remainderman : — 
 
 " A right to make an entry or distress, or to bring an actioQ 
 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 re- 
 mainder, 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." 
 
 This provision replaces sect. 5 of the Act of 1833. The only 
 variations consist in the addition of the words " or suit " after 
 " action," which is now of no effect, and of the words " or other 
 future estate or interest " after "remainder." The latter change 
 brings the clause into harmony with clause 4 of sect. 3 of the 
 Act of 1833, which it is meant to explain ; but, in fact, the clause 
 seems to be unnecessary. If A., who is seised in fee, conveys to 
 B. for life, reversion to himself in fee, and B. enters under the 
 life estate and remains in possession till his death, a right of 
 entry will thereupon accrue to A. in respect of his reversion, and
 
 CHAP. I.] FUTURE INTERESTS. ^O 
 
 if a stranger enters, the statute will run against A. The fact 
 that A. was formerly in possession in respect of an estate prior 
 to the settlement is irrelevant. It can hardly have been sup- 
 posed that on the conveyance by A. to B. there was a dis- 
 continuance of possession by A. within the meaning of clause 1 
 of sect. 3 of the Act of 1833, so as to make the statute run 
 against him, though it has been suggested that the provision 
 was introduced to exclude such a possibility : Hayes* Con- 
 veyancing, vol. I. p. 255. The discontinuance of possession 
 referred to in sect. 3 is a discontinuance which gives rise to a 
 right of entry. Moreover, sect. 3, clause 1, applies only where 
 the claimant has been in possession in respect of the estate or 
 interest claimed, and has been dispossessed or has discontinued 
 possession. But in the above case A., who claims in respect of 
 his reversion, cannot be said to have been in possession in 
 respect of that estate when at the time of possession he was 
 seised in fee. He could not, prior to the creation of B.'s life 
 estate, be in possession in respect of a reversion which did not 
 then exist : see Lord St. Leonards' Eeal Prop. Stats, p. 51 ; 
 James v. Salter (1837), 3 Bing. N. C. p. 554. The re-enactment 
 of sect. 5 of the Act of 1833 in sect. 2 of the Act of 1871 has 
 only perpetuated speculation as to the nature of the difficulty 
 which the sections were intended to meet : see Smith's L. C.» 
 9th ed. n. 748. 
 
 (3) Owner of Particular Estate out of Possession. 
 The period of limitation as against a remainderman is liable 
 to be reduced to six years if the owner of the particular estate 
 was out of possession : — 
 
 " But if the person last entitled to any particular estate on R. P. L. A, 
 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 Owner of 
 
 receipt of such rent, at the time when his interest determined, no Pf^^rticulsj" 
 
 • • estate out ot 
 
 such entry or distress shah be made, and. no such action or suit possession. 
 
 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, shaU have 
 
 first accrued to the person whose interest shall have so determined, 
 
 or within six years next after the time when the estate of the 
 
 person becoming entitled in possession shall have become vested 
 
 in pos.session, whichever of those two periods shall be the longer."
 
 56 
 
 LAND AND EENT-CHAEGES. 
 
 [CHAP. I. 
 
 Thus where the owner of the preceding particular estate has 
 been out of possession, the remainderman has the longer of two 
 alternative periods, either twelve years from the time of the 
 accrual of a right of entry or of action to the owner of the par- 
 ticular estate, or six years from the time when his own estate 
 becomes vested in possession : see Re Earl of Devon s Settled 
 Estate, [1896] 2 Ch. 562. But the clause does not operate 
 when the owner of the particular estate is out of possession in 
 consequence of having made a grant of the land in fee. The 
 possession of the grantee is rightful to the extent of the par- 
 ticular estate, and the grantor is not " the person last entitled " : 
 redder v. Hunt (1887), 18 Q. B. D. 565, C. A. 
 
 Settlement 
 by owner out 
 of possession. 
 
 Resettlement 
 by remainder- 
 man. 
 
 E. P. L. A., 
 3874, s. 2, 
 clause 3. 
 Settlement by 
 remainder- 
 man while 
 statute 
 runninor. 
 
 (4) Settlement ivliilc Statute is running. 
 
 An owner entitled in possession, against whom the statute 
 is already running, cannot by settling the land postpone the 
 operation of the statute as to persons taking future interests 
 under the settlement. They claim through the settlor, and 
 when his original right is barred they are barred also : Stack- 
 looole v. StaeJqwole (1843), 4 Dr. & War. p. 347 ; Doe v. Moore 
 (1846), 9 Q. B. 555. The bar arises either under sect. 3, 
 clause 1, or if that enactment is inapplicable because the settlor 
 was not in possession " in respect of the estate or interest 
 claimed " by the beneficiary under the settlement, then under 
 the general provision of sect. 1 of the Act of 1874. It is for 
 the adverse possessor to prove that his possession commenced 
 before the settlement : Cole v. Heydon (1860), 1 L. T. 439. 
 
 Under the Act of 1833 it was not clear that a remainderman 
 could not create a settlement while the statute was running 
 against the owner of the particular estate, so as to give further 
 time to ultimate remaindermen under the settlement. But in 
 Doe V. Edmonds (1840), 6 M. & W. 295, it was held that claimants 
 under such a resettlement were allowed only the time which 
 the remainderman himself would have had, and the Act of 1874 
 contains a provision to this effect : — 
 
 "And if the right of any such person to make such entry or 
 distress, or to bring any such action or suit, shall have been 
 barred under this Act, no person afterwards claiming to be en- 
 titled to the same land or rent in respect of any subsequent 
 estate or interest under any deed, a\ ill, or settlement, executed or 
 taking efiect after the time when a right to make an entry
 
 CHAP. I.] FUTURE INTERESTS. Oi 
 
 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 
 naake any such enti'y or distress, or bring any such action or suit, 
 to I'ecover such land or rent." 
 
 (5) Forfeiture. 
 
 Where an estate has been, or is liable to be, determined by Forfeiture. 
 forfeiture or breach of condition, the statute prima facie runs 
 from the date of the forfeiture or breach ; but if advantage 
 is not taken of the forfeiture or breach it does not run till 
 the estate in remainder falls into possession in the ordinary 
 course. This is provided as follows : — 
 
 *•' When the person claiming such land or rent, or the person W. P. L. A., 
 
 through whom he claims, shall have become entitled by reason of .^•''■^' ^-" 
 => ' _ _ -^ 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 <if 
 possession. 
 
 not affect the issue in tail, their estate becomes an independent 
 future estate, and the statute does not run against them until 
 this estate falls into possession : Cannon v. lluninrjton (1852), 
 12 C. B. 1 ; and see cases infra, p. 64. 
 
 The operation of the statute as regards remainders expectant 
 on the estate tail is defined by sects. 21 and 22 of the Act of 1833. 
 Sect. 21 enacts that when the statute has run against a tenant 
 in tail, it is to be taken to have run also against any estate, 
 interest, or right which he might lawfully have barred, and 
 sect. 22 provides that this result shall not be prevented by the 
 death of the tenant in tail before the bar of the statute is 
 complete; but that, if time has commenced to run against him, 
 it shall continue to run against claimants to any estate, interest, 
 or right which he might have barred : — 
 
 " When the right of a tenant in tail of any land or rent to 
 make an entry or distress or to bring an action to recover the 
 same shall have been barred by reason of the same not having 
 been made or brought within the period hereinbefore Hmitecl, 
 which shall be appHcable in such case, no such entry, distress, or 
 action shall be made or brought by any person claiming any 
 estate, interest, or right which such tenant in tail might lawfully 
 have barred. 
 
 "When a tenant in tail of any land or rent, entitled to recover 
 the same, shall have died before the expiration of the period 
 hereinbefore limited, which shall be applicable in such case, for 
 making an entry or distress or bringing an action to recover such 
 land or rent, no person claiming any estate, interest, or right 
 which such tenant in tail might lawfully have barred shall make 
 an entry or distress or bring an action to recover such land or 
 rent but within the period during which, if such tenant in tail 
 had so long continued to live, he might hav^e made such entry or 
 distress or brought such action." 
 
 -\ 
 
 These sections are wide enough to bar both the issue in tail 
 and subsequent remaindermen; and it was formerly thought 
 that they applied to both these classes: Eiminriton y. Cannon 
 (1853), 12 C. B. 18, p. 34 ; Austin v. Lleicdhjn (1853), 9 Ex. 276. 
 ^' \'^^ But, as just stated, the case of the issue is already provided for, 
 and sects. 21 and 22 apply only to estates in reversion or 
 remainder subsequent to the estate tail : Earl oj Abergavenny v. 
 Brace (1872), L. E. 7 Ex. 145. The effect of the sections is to 
 place the remaindermen, like the issue, in the position of
 
 CHAP. I.] 
 
 ESTATES TAIL. 
 
 Base fee. 
 
 claimants under the tenant in tail : Goodall v. Skcrratt (1854), 
 3 Drew. 216. In other words, the whole series of limitations 
 forms, for the purpose of the statute, one unbroken estate, and 
 when the statute runs against the tenant in tail, it runs equall}' 
 against the issue in tail, as persons claiming through him, and 
 against the remaindermen, as persons claiming estates which 
 he might have barred. 
 
 There remains the case where the tenant in tail has created 
 a base fee — that is, where he has executed a conveyance which 
 bars the issue, but does not bar the remainders. The statute 
 comes to the help of such defective assurance, and sect. 6 of the 
 Act of 187-4 (which replaces sect. 23 of the Act of 1833) provides 
 that time shall run against the remainders and in favour of 
 the person entitled under the assurance, from the date when the 
 assurance, if then executed by the tenant in tail, would have 
 been effectual to bar the remainders without the consent of any 
 other person : — 
 
 "When a tenant in tail of any land or rent shall have made R- I'- L. A., 
 an assurance thereof which shall not operate to bar the estate or 
 estates to take effect after or in defeasance of his estate tail, and 
 any person shall by virtue of such assurance at the time of the 
 execution thereof, or at any time afterwards, be in possession or 
 receipt of the profits of such land, or in the receipt of such rent, 
 and the same person or any other person whosoever (other than 
 some person entitled to such possession or receipt in respect of an 
 estate which shall have taken 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 
 such tenant in tail, or the person who would have been entitled 
 to his estate tail if such assurance had not been executed, 
 would, without the consent of any other person, have operated 
 to bar such estate or estates as aforesaid, then, at the expiration 
 of such period of twelve years, such assurance shall be and be 
 deemed to have been effectual as against any person claiming 
 any estate, interest, or right to take effect after or in defeasance 
 of such estate tail." 
 
 A conveyance by a tenant in tail may be defective both as Scct.(; 
 
 , ,, . • . •! 1 ,1 . T . api)lie!< only 
 
 against the issue m tail and the remaindermen, or as against whin issue 
 the remaindermen only. The former case happens when the '"'^^ 'j=i""l- 
 formal requirements of a disentailing deed have not been 
 complied witli, or where the deed has not been enrolled; the 
 
 1874, s. 6. 
 Defective 
 assurance by 
 tenant in tail.
 
 64 LAND AND EENT-OHARGES. [CHAP. I. 
 
 latter when the consent of the protector of the settlement is 
 necessary and has not been given. Since in both cases the 
 assurance is ineffectual against the remaindermen, and since 
 this is the circumstance on which the apjDlication of the section 
 ostensibly depends, it was at one time thought that the section 
 might cure a defective assurance of either kind. It was held, 
 Fenny y. however, in Penny v. Allen (1857), 7 D. M, & G. 409, where a 
 
 Allen. recovery suffered in 1828 was bad as against the issue in tail 
 
 for want of a good tenant to the jJi'^scijJc, that sect. 23 applied 
 only where the assurance was effectual as against the issue, and 
 not against the remaindermen. Hence the statute did not run 
 against the heir in tail till his title fell into possession in 1837, 
 and his bill, filed in 1855, was in time. " The object of the 
 23rd section," said Lord Cranworth, "was to give effect to acts 
 of a tenant in tail against remaindermen and reversioners, and 
 to give effect to assurances, which, although they were effectual 
 to bar the issue, were ineffectual to bar those entitled in 
 remainder." 
 Morgan v. This view ot the section is illustrated by Morgan v. Morgan, 
 
 Mor,jan. (1870), 10 Eq. 99. Land was settled on A. for life, remainder 
 
 to B. in tail. In 1820 B. purported to convey the reversion in 
 fee to X., but he did not bar the estate tail. B. died in 1824, 
 and the estate tail devolved on his son C. On the death of A. 
 in 1840, X. entered into possession, and in 1847 C. joined in a 
 conveyance b}^ X. to a purchaser, Y. This conveyance also was 
 not executed as a disentailing assurance. C. died in 1860, and 
 his son, D, on whom the estate tail descended, attained twenty-one 
 in 1867, and filed his bill against X. and persons claiming under 
 him in 1868. It was said that he was barred by the statute, but 
 since neither of the conveyances of 1820 and 1847 was effectual 
 against the issue, sect. 23 did not apply. Hence, in spite of 
 the conveyance of 1820, C.'s right to possession accrued on the 
 death of the tenant for life in 1840, and, on the principle already 
 stated {supra, p. 62), his conveyance of 1847 turned D.'s estate 
 into a future estate, against which time did not run till it fell 
 into possession in 1860. D., therefore, was not barred. 
 Effect wliere Sect. 23 of the Act of 1833 was applicable only to the 
 
 barreVr^ modern method of barring estates tail, under which a tenant in 
 fine. tail, while his estate is in remainder, can by deed enrolled 
 
 bar the issue in tail, but cannot, save with the consent of 
 the protector of the settlement, bar the remainders. This
 
 CHAT. I.] ESTATES TAIL. 65 
 
 construction follows from the circumstance that the statute only 
 runs in favour of the defective assurance as soon as that assur- 
 ance would have been effectual without the consent of any other 
 person — that is, of the protector. In Anderson v. Anderson 
 (1861), 30 Beav. 209, a fine levied by tenant in tail in remainder 
 was effectual to bar the issue in tail, but not the remainders ; 
 and this result was due, not to any want of consent, but to the 
 fact that a fine was not a species of conveyance by which 
 remainders could in any event be barred. There was no time, 
 therefore, at which such an assurance, if then executed, would, 
 without the consent of any other person, bar the remainders, 
 and sect. '23 was of no assistance. This decision is equally 
 applicable to sect. 6 of the Act of 1874. 
 
 It may happen that the tenant in tail in remainder Tenant in tail 
 has also a prior life interest, and then the possession of a Jeding'^ufe 
 purchaser from him may be referred to such life interest, interest, 
 so that he will not gain the benefit of sect. 6. This was 
 the case in Mills v. Cajjel (1870), 20 Eq. 692, where F. had Mills v. 
 a life tenancy in remainder, and also an estate tail. In "^^^' 
 1835, while both estates were still in remainder, F., by deed 
 enrolled, made a conveyance in fee to a purchaser. A subsequent 
 tenant for life, E., joined in the conveyance, but no consent 
 was given by T., the tenant for life in possession. T. died in 
 1848, F. died without issue in 1859, and E. died in 1873. The 
 land was then claimed by the remainderman subsequent to F.'s 
 •estate tail, and he succeeded. Had sect. 23 applied, time would 
 have run in favour of the purchaser from 1848, when T., the first 
 tenant for life, died ; but it was held that the possession of the 
 purchaser prior to 1873 w^as to be referred to the life interests of 
 F. and E., and the statute did not assist him while those lives 
 were in being. 
 
 It is to be noticed that in cases where sect. 6 applies the Eemainder- 
 remainderman may be, and usually is, powerless to do anything g^^^ stTtuto 
 to stop the operation of the statute. Upon the death of the runnin--. 
 protector of the settlement the statute begins to run, but the 
 remainderman can only enter and stop its operation in the event 
 of the death of the tenant in tail and failure of his issue. 
 
 (9) Proceeds of Waste. 
 The proceeds of waste committed by a tenant for life by claim of 
 •cutting timber have sometimes been treated as part of the settled J^"^'J•yr '''"" 
 
 T.L.A. F
 
 66 
 
 LAXD AND RENT-CHARGES. 
 
 [CHAP. I. 
 
 ■waste is 
 barred in six 
 years. 
 
 Legal Traste. 
 (i.) Proceeds 
 belong to 
 first vested 
 estate of 
 inheritance. 
 
 (ii.) Proceeds 
 into settle- 
 ment. 
 
 land, so that the remainderman has been allowed the statutory 
 period for the recovery of land reckoned from the death of the 
 tenant for life : Duke of Leeds v. Ead of Amherst (1846), 2 Ph. 
 117; Hareonrt v. White (1860), 28 Beav. 303. But this is 
 erroneous : Morris v. Morris (1858), 6 W. E. 427. The claim is 
 not a claim to laud, but is either a mere money demand or a 
 claim in trover, according as the timber has been sold {Gent v. 
 Harrison (1859), Johns. 517), or not {Whitfield v. Beicit (1724), 
 2 P. Wms. 240) ; and it is barred under the Limitation Act, 162S 
 {infra, p. 192), in six years from the date when the right of 
 action accrues {Seagram v. Knicfht (18G7), 2 Ch. 632; Hi(jffin- 
 hoihaniY. Hawkins (1872), 7 Ch. 676). This date depends on the 
 circumstances under which the waste is committed. 
 
 The proceeds of legal waste belong to the owner of the 
 first vested estate of inheritance {Udal v. Udal (1649), Aleyn, 81), 
 even though there is an intermediate tenant for life who is not 
 impeachable for waste : Lcicis Bowies' Case (1616), 11 Piep. 97 b ; 
 Pigot V. Bullock (1792), 1 Ves. Jun. 479 ; Gent v. Harrison {supra). 
 And contingent interests are excluded from taking {Garth v. 
 Cotton, (1750), 2 Wh. et T. L. C. 7th ed. 970; Cavendish v. 
 Mundi/ (1877), W. N. p. 198), notwithstanding a. contrary 
 opinion expressed by Lord Piomilly, M.E., in Barjot v. Baijot 
 (1863), 32 Beav. p. 523 ; unless the tenant for life is in collusion 
 with the remainderman {Garth v. Cotton), or is himself the 
 owner of the first vested estate of inheritance {Williams v. Duke 
 of Bolton (1784), 3 P. Wms. 268 ; Pouiett v. Duchess cf Bolton 
 (1797), 3 Ves. 374), provided, in the latter case, that, under the 
 circumstances, he is really to be regarded as colluding with 
 himself as remainderman: Birch-Wolfe v. Birch (1870), 9 Eq. 
 683. Waste committed by an equitable tenant for life is of the 
 nature of legal waste, since the form of the limitations does not 
 affect the rights inter se of the persons equitably entitled :. 
 Simpson v. Simpson (1879), 3 L. Pi. Ir. p. 316. 
 
 Where, however, the cutting of the timber is rightful, as where 
 it has been cut by order of the Court ; or where it has been cut by 
 the direction of the trustees — but not of the tenant for life himself, 
 Seagram v. Knight {supra) ; and the cutting is for the benefit of 
 the estate, and such that the Court would sanction it ; the 
 proceeds are treated as part of the estate and follow the uses of 
 the settlement, though if there is a tenant for life in remainder 
 not impeachable for waste, he becomes absolutely entitled upon
 
 CHAP. I.] PROCEEDS OP WASTE. 67 
 
 his estate falling into possession : Waldo v. Waldo (1841), 
 12 Sim. 107 ; Phillips v. Barloiv (1844), 14 Sim. 263 ; Gent v. 
 Harrison (siqjra) ; Loicndcs v. Norton, 6 C. J). 139. And the 
 same rule is adopted where equity interposes on the ground that 
 there has been collusion : Poidctt v. Dachess of Bolton (1797), 3 
 Ves. 374. The wrongful cutting is regarded as a wrong to the 
 settlement, and the proj)erty wrongfully taken from the settle- 
 ment must be restored to it. 
 
 In the case of equitable w^aste — that is, the cutting of Equitable 
 ornamental timber by a tenant for life who is not impeachable ^^'^^ ^' 
 for waste — equity follows the law, and the proceeds go to the 
 owner of the first vested estate of inheritance : Bolt v. Somerville 
 (1737), 2 Eq. Cas. Abr. 759 ; Marquis of Ormonde v. Kynnersley 
 (1829), 7 L. J. Ch. (O.S.) 150 ; Simpson v. Simpson (1879), 
 3 L. E. Ir. 308 ; though in Hoiieywood v. Honcywood (1874), 
 18 Eq. 306, Jessel, M.E., held that in such a case the proceeds 
 would go into the settlement : see Duke of Leeds v. Earl of 
 Amherst (1846), 2 Ph. 117. 
 
 Such being the destination of the proceeds of waste, the date Date from 
 of the accrual of the right to recover the proceeds is determined '^'^^^^^ ^^"^^ 
 
 *^ ^ . runs. 
 
 accordingly. In legal waste wrongfully committed, where there 
 is no collusion between the tenant for life and the remainderman, 
 since the owner of the first vested estate of inheritance is imme- 
 diately entitled, time runs against him at once, and he is barred 
 in six years under the Limitation Act, 1623, unless the time is 
 extended by reason of disability : Seagram v. Knight {supra) ; 
 Higginhotham v. Hawkins (supra). But where the proceeds of 
 sale should go into the settlement, either because the cutting is 
 rightful, or on the ground of collusion, time does not run till the 
 death of the tenant for life. Upon that event hapi^ening time 
 runs against the succeeding owner, whether entitled for life or 
 for any other interest, and he is barred in six years. Moreover, 
 inasmuch as such succeeding owner claims on behalf of all the 
 owners successively entitled, all are barred together : Birch- 
 Wolfr V. Bireh (1870), 9 Eq. 683.
 
 68 
 
 LAXD AND KENT-CHARGES. 
 
 [CHAP. I. 
 
 Division of 
 subject. 
 
 E. P. L. A., 
 1833, s. 24. 
 Limitation on 
 suits in 
 equity. 
 
 S. 25. 
 Saving for 
 
 express trusts. 
 
 Judicftture 
 Act, 1873, 
 s. 25 (2). 
 
 Law before 
 1833. 
 
 Section V. — TrasTEE and Cestui que Trust. 
 
 Where the ownership of land is divided between persons who 
 take rights differing in their nature, the question of the opera- 
 tion of the statute arises as between such persons iiitei' se, and 
 as between them and strangers. For the case of division of 
 ownership into legal and beneficial estates, we have to consider 
 its operation (1) in favour of the trustee against the cestui que 
 trust ; (2) in favour of the cestui que trust against the trustee ; (3) 
 in favour of a stranger as against the trustee or the cestui que 
 trust, or both ; and (4) in favour of one cestui que trust against 
 the rest. 
 
 (1) In Favour of the Trustee against the Cestui que Trust. 
 
 The following provisions are material as regards claims 
 against a trustee : — 
 
 " No person claiming any land or rent in equity shall bring any 
 suit to recover the same but within the period during which, by 
 virtue of the provisions hereinbefore contained, he might have 
 made an entry or distress, or brought an action to recover the 
 same respectively, if he had been entitled at law to such estate, 
 interest, or right in or to the same as he shall claim therein in 
 equity. 
 
 " Provided always that when any land or rent shall be vested 
 in a trustee upon any express trust, the right of the cestui que trust, 
 or any person claiming through him, to bring a suit against the 
 trustee, or any person claiming through him, to recover such 
 land or rent, shall be deemed to have first accrued, according to 
 the meaning of this Act, at and not before the time at which such 
 land or rent shall have been conveyed to a purchaser for a valu- 
 able consideration, and shall then be deemed to have accrued 
 only as against such purchaser and any person claiming through 
 him." 
 
 " No claim of a cestui que trust against his trustee for any pro- 
 perty held on an express trust, or in respect of any breach of such 
 trust, shall be held to be barred by any Statute of Limitations." 
 
 Previously to the Act of 1833 it was settled that, when a 
 trustee was in possession, his possession was to be regarded as
 
 CHAP. I.l TRUSTEE AND CESTUI QUE TRUST. 69 
 
 the possession of the ct'stid que trust, and the length of time 
 during which the trustee omitted to discharge the trust was no 
 bar to the cestui que trust's claim against him : Chalmcr v. Bradley 
 (1819), 1 Jac. & W. p. 67. "If," said Lord Eedesdale in 
 Hovenden v. Lord Annesley (1806), 2 Sch. & Lef. p. 633, " a 
 trustee is in possession and does not execute his trust, the pos- 
 session of the trustee is the possession of the cestui que trust ; 
 and if the only circumstance is that he does not perform his 
 trust, his possession operates nothing as a bar, because his 
 possession is according to his title." But a distinction was 
 made between express trusts, declared by the parties, and con- 
 structive trusts, arising from circumstances or from the acts of 
 the parties ; and claims in respect of trusts of the latter kind 
 were liable to be barred: Townscnd v. Townscnd (1783), 1 Bro. 
 C. C. p. 554 ; Beckford v. Wade (1805), 17 Ves. p. 95. 
 
 Under sect. 24 of the E. P. L. A., 1833, all claims in equity are Present law. 
 liable to be barred, and the claim of a cestui que trust against his 
 trustee would fall within that section, but for the saving of sect. 
 25, which, as well as the more general provision of the Judicature 
 Act, 1873, s. 25 (2), preserves the distinction between express 
 and constructive trusts. "The statute," said Wigram, V.-C, 
 in Att.-Gen. v. Flint (1844), 4 Hare, p. 155, "first provides for 
 cases of dry legal rights ; and then the 24th section, as I under- 
 stand it, takes up the case of those equitable rights which are 
 distinguishable from the equitable rights of cestui que trusts under 
 express trusts." And the effect of sect. 25 was stated by Lord 
 St. Leonards in Law v. Bagwell (1843), 4 Dr. & War. p. 408, as 
 follows : " The 25th section of the late Statute of Limitations, 
 providing for express trusts, renders lapse of time unimportant 
 in all cases within the section — that is, between the cestui que 
 trust and his trustee — until the trust is disturbed, and that dis- 
 turbance can only be effected by such a denial of the trust as 
 takes place when the trustee sells to a third party for valuable 
 consideration the property so held by him in trust : cf. Magdalen 
 College v. Att.-Gen. (1857), 6 H. L. C. p. 215. 
 
 So long, therefore, as the land is retained by the trustee, statute does 
 
 time does not run at all against the cestui que trust, and such a JY*^ run while 
 , ,,-,,.,. tlie land is 
 
 case does not fall withm sect. 8 of the Trustee Act, 1888 (51 & 52 held by 
 Vict. c. 59), which allows the Statute of Limitations, under *"'"'*^^ = 
 certain circumstances, to be pleaded by a trustee (inj'ra, p. 280). 
 That section, so far as it relates to the recovery of the land
 
 70 
 
 LAND AND RENT-CHARGES. 
 
 [CHAr, I. 
 
 or person 
 taking from 
 him othoi- 
 
 wise than for 
 value. 
 
 Conveyance 
 to purcliaser 
 for value. 
 
 Bar extends 
 to future 
 equitable 
 interests. 
 
 itself, does not apply while the land remains in the possession 
 of the trustee. Moreover, the rights of the ccstni (jnc tni^st are 
 not prejudiced by the possession of persons claiming under the 
 trustee otherwise than for valuable consideration. "A trustee, 
 remaining in possession, never acquires possession adverse, 
 within the meaning of the Act, to his cestui que trust ; and if he 
 convey to any one not for value, the same result follows " : j<er 
 Lord St. Leonards in Burrouglisv. M'Creiglit {1844.), 1 Jo. & Lat. 
 p. 304. Thus the trustee in bankruptcy of the ccstni que trust under 
 a will, taking a conveyance of the legal estate from the trustee 
 of the will, holds it upon the subsisting trusts, and if the cestui 
 que trust's interest is still liable to be treated as assets in a 
 previous bankruptcy, it is held for the previous trustee in bank- 
 ruptcy : Sturcjis v. ISIorse (1858), 3 De G. & J. 1. And an heir of 
 a surviving trustee takes, of course, subject to the trust : Smith 
 V. Smith (187G), 1 L. E. Ir. 206 ; cf. Att.-Gen. v. Darls (1870), 
 18 W. E. 1132. 
 
 But upon conveyance to a purchaser for valuable considera- 
 tion the statute forthwith begins to run {Law v. Bagwell (1843), 
 4 Dr. & War. p. 408), notwithstanding that the purchaser has 
 notice of the trust : Magdalen College v. Att.-Geii. (1857), G 
 H. L. C. 189. A lessee is entitled to the benefit of the statute, 
 since a lease is an alienation 2^>'<^ 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 <le 
 being duly appointed trustee seems in strictness to be no more 
 than constructively a trustee, and upon the mere language of 
 sect. 25 he would be able to plead the statute ; but it is settled 
 that under such circumstances he cannot be allowed to say for 
 his own benefit that he had no right to act as trustee, and he is 
 estopped from taking advantage of the lapse of time, so long as 
 he retains the property : Life Association of Scotland v. Siddall 
 ami), 3 I). F. & J. 58; (Jninton v. Erith (1868), Ir. E. 2 Eq. 
 p. 416; /.//'•// V. Knnirdu (1889), 14 App. Cas. p. 459; Soar v.
 
 trusts. 
 
 74 LAND AND RENT-CHARGES. [CHAP. I. 
 
 Ashrcll, [1893] 2 Q. B. 390, C. A. ; and see cases on receipt of 
 property by persons in a fiduciary position, infra, p. 274. 
 Resulting With respect to resulting trusts a distinction has to be made. 
 
 Where the resulting trust arises solely by operation of law, as 
 where upon a purchase of land a trust results in favour of the 
 person who pays the purchase-money, the conveyance being 
 taken to another, clearly there is no express trust. The term 
 "resulting trust," however, is also used where the trust itself, 
 the separation of the beneficial from the legal ownership, has 
 been created by a written instrument, but through failure in the 
 objects of the trust the beneficial interest results to an heir or 
 other person ascertained by rules of law. In such a case the 
 law points out the beneficial owner, but it does not create the 
 trust, and the trust is still regarded as express. Thus in Salter 
 V. Caranaqh. (1838), 1 Dr. & Wal. G68, lands were devised in 
 trust to pay certain annuities which did not exhaust the profits. 
 It was held that the devisee was intended upon the will to be a 
 trustee as to the whole, and hence he was an express trustee for 
 the heir-at-law, in whose favour there was a resulting trust of 
 the surplus: c/. Niujent v. Nugent (1884), 15 L. E. Ir. 321. 
 Similarly in Patrick v. Simpson (1889), 24 Q. B. D. 128, where 
 real estate was devised to trustees, but the objects of the trust 
 were declared as to part X only and not as to part Y, it was held 
 that the testator's widow, who was one of the trustees and also 
 tenant for life of part X, and who entered on the whole, did not 
 gain a title to part Y against the testator's heir-at-law. As to 
 him she held upon an express trust. 
 
 But these cases only apply where a trust aftecting the _land 
 is actually created by the will : see Yardlci/ v. Holland (1875), 
 20 Eq. 428. An executor, although under the Executors Act, 
 1830 (11 Geo. 4, c. 40), he is a trustee fpr the next of kin of the 
 residue not disposed of, is not an express trustee : Re Lacy, 
 [1899] 2 Ch. 149 ; nor, it would seem, is he, by virtue of the 
 similar enactment of sect. 2 (1) of the Land Transfer Act, 1897, 
 an express trustee of real estate devolving upon him under the 
 Act for the persons beneficially entitled thereto. And so, where 
 a conveyance to trustees for a charity is void for non-compliance 
 with the Mortmain Act (9 Geo. 2, c. 36 ; now the Mortmain 
 and Charitable Uses Act, 1888, 51 & 52 Vict. c. 42), but the 
 trustees have entered into possession, there is no instrument 
 which raises an express trust in favour of the grantor, and
 
 CHAr. I.] TRUSTEE AND CESTUI QUE TRUST. 75 
 
 consequently the trustees can acquire a title against liim under 
 the statute : Churcher v. Martin (1889), 42 C. D. 312. 
 
 (iii.) Charities. 
 
 Previousl}' to the Act of 1833 a charity was not barred " by Ciiarities. 
 length of time or any Statute of Limitations : " Att.-Gen. v. 
 Mat/or of Coventrii (1700), 2 Vern. p. 399 ; Magdalen College v. 
 Att.-Gen. (1857), 6 H. L. C. 189, p. 207 ; though length of time 
 might be important in determining the effect and construction 
 of an instrument (Att.-Gen. v. Mayor of Bristol (1820), 2 Jac. & 
 W. p. 321), or in determining whether an existing state of 
 circumstances should be interfered with : Att.-Gen. v. Hungerford 
 (1834), 2 CI. & Fin. p. 378. But the Act of 1833 has no saving 
 in favour of charities, and they are barred like other equities 
 unless preserved by an express trust : Commissioners of Donations 
 V. Wijhrants (1845), 2 Jo. & Lat. 182 ; Magdalen College v. Att.-Gen. 
 {supra) ; Magdalen Hospital v. Knotts (1879), 4. App. Cas. 324. 
 ISTor is the statute excluded on the ground that the class for 
 whose benefit the charity is established cannot themselves sue. 
 By sect. 1 of the R. P. L. A., 1833, the word ''person" is ex- 
 tended to "a class of creditors and other persons, as well as an 
 individual," and an action by the Attorney-General in the name 
 of the class is equivalent to an action by them : Magdalen College 
 v. Att.-Gen. (supra) ; Att.-Gen. v. Dav eg (1859), 4 De G. & J. 136 ; 
 Att.-Gen. v. Paijne (1859), 27 Beav. 168. Att.-Gen. v. Persse 
 (1842), 2 Dr. & War. 67, where it was held that time would 
 not run against a rent-charge devised for payment of a school- 
 master's salary until a schoolmaster had been appointed, seems 
 to be inconsistent with the Magdalen College Case. The school- 
 master was not the object of the charity, and proceedings to 
 estabhsh the charity could have been taken by the persons for 
 whose benefit it was intended. 
 
 (2) In favour <f the Cestui que Trust against lite Trustee. 
 (i.) Express Trusts. 
 
 In general the eestui que trust under a simple trust (Lewin Former law. 
 on Trusts, 11th ed. p. 847) is entitled to the actual possession 
 of the trust estate, and the trustee is not allowed to deprive him 
 of it: CholmoiidelrijY. ClinfoH (1817), 2 Mer. p. 35!). And this 
 possession is accounted for at law by describing the cestui que
 
 7G LAND AND EENT-CHAKGES. [CILVr. I. 
 
 fnist as tenant at will to the trustee : Freeman v. Barnes (1671)^ 
 1 Yentr. 80 ; 1 Sider. 349, 458. The tenancy supports the seisin 
 of the trustee (Parker v. Carter (1844), 4 Hare, 400), and it 
 followed under the law prior to 1883 that the possession, while 
 held under such tenancy, was not adverse to the trustee : Kecne 
 V. Ikardon (1807), 8 East, 248; Smith v. Klmi (1812), 16 East, 
 283. Nor did the assignee of an equitable tenant for life gain 
 adverse possession as against the trustee till the death of the 
 tenant for life : Fausset v. Carpenter (1831), 2 Dow & C. 232. 
 
 But the cestui que trust could prevent a tenancy, and exclude 
 the seisin of the trustee, by repudiating the title of the latter 
 from the beginning of his possession ; and, though he originally 
 took possession under the trustee, he might subsequently 
 disseise him, and make time run in his own favour : CholmoncJeley 
 V. Clinton (1817), 2 Mer. p. 360. Disseisin was effected by any 
 distinct claim to hold adversely to the trustee : Earl of Pom/ret 
 V. Lord Windsor (1752), 2 Yes. S. 472 ; Faussett v. Carpenter 
 (1831), 2 Dow & C. p. 243 ; or it might, if the trustee had never 
 been in possession, and if the cestui que trust had been in 
 exclusive possession as owner, be presumed from lapse of time : 
 Earl of Portsmouth v. Lord Effingham (1750), 1 Yes. S. p. 435. 
 Present law. Under the present law the cestui que trust in occupation is 
 
 still regarded as tenant at will to the trustee : Garrard v. Tuch 
 (1849), 8 C. B. 231 ; and while the tenancy lasts, the possession 
 Cestui que. of the cestui que trust is the possession of the trustee, and time 
 occupation. ^^^^ ^^^ 1'^^^ against the latter : Mellinr/ v. Leal: (1855),. 
 16 C. B. p. 669. Under sect. 7 of the Act of 1833, a tenancy 
 at will is deemed to determine, at latest, at the end of the first 
 year, so that the landlord, if he does not re-enter or create a 
 fresh tenanc}^ is barred in thirteen years : infra, p. 97. But the 
 section is subject to the following proviso : — 
 
 R. P. L. A., " Provided always, that no mortgagor or cestui que trust shali 
 
 ^^^■. . be deemed to be a tenant at will, within the meaning of this 
 Proviso to ^ / ° 
 
 sect. 7. clause, to bis mortgagee or trustee." 
 
 Consequently, where a cestui que trust is holding under the 
 trustee, the statute only runs where there has been an actual 
 determination of the tenancy. Cases of such actual determination 
 do not often arise. Apparently, the matter is governed by the 
 ordinary rules as to the determination of tenancies at will : Doe v> 
 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 
 <against the lessor : Archhold v. Scull// (1861), 9 H. L. C. p. 381. 
 
 The lease may be determined by surrender, either express or Surrender of 
 implied, and a surrender is implied upon the granting of a new 'eas<-. 
 lease to the same tenant : Lgou v. Ficed (1844), 13 M. & W. 
 285 ; but under the circumstances of such surrender and fresh 
 grant the lessee gains no advantage from the statute. The 
 lessor's estate falls into possession upon the surrender, but by 
 the new lease he is again put in the position of reversioner, and 
 on the determination of the new lease he will have a right of 
 entry. If the new lease is void, there is no implied surrender 
 of the old lease, and the statute does not run till the determi- 
 nation of the original term : Coyporation of Canterhuiij v. Cooper 
 (1908;, TiwcH, July 2. 
 
 As to surrender when a stranger is in possession, see 
 infra, ]). 110.
 
 108 
 
 LAND AND RENT-CHARGES. 
 
 [CHAP. I. 
 
 Encroach- 
 ments arc 
 benefit of 
 landlord. 
 
 Encroach- 
 ment sepa- 
 rated from 
 holding. 
 
 (iv.) Kncfoachments hy the Tenant. 
 
 In general, a possessory title obtained by a tenant to waste — 
 for that is, uninclosed — land adjoining or near to his holding is 
 obtained for the benefit of his landlord, and the land so acquired 
 must be given up with the demised land at the end of the 
 tenancy. " It is clearly settled," said Parke, B., in Doe v. Recs 
 (1834), 6 C. & P. p. 610, " that encroachments made by a tenant 
 are for the benefit of his landlord, unless it appear clearly by 
 some act done at the time of the making of the encroachments, 
 that the tenant intended the encroachments for his own benefit, 
 and not to hold them as he held the farm to which the encroach- 
 ments were adjacent." And in Wliitmore v. Hinnphries (1871), 
 L. P. 7 C. P. 1, Willes, J., stated the rule as follows : — 
 "By the rule of law applicable to this subject the landlord is 
 entitled at the determination of the tenancy to recover from the 
 tenant, not only the land originally demised, but also any land 
 which the tenant may have added to it by encroachment from 
 the waste, such encroachment being deemed to be made by him 
 as tenant as an addition to his holding, and consequently for the 
 benefit of his landlord, unless it is made under circumstances 
 showing an intention to hold it for his own benefit alone, and 
 not as part of his holding under the landlord " : see Doe v. 
 Mulliner (1795), 1 Esp. 460; Andreics\.HaUes{l'd^^), 2 E. & B. 
 p. 353 ; Kingsmill v. Millard (1855), 11 Ex. pp. 315, 318. 
 
 The rule applies to an inclosure made by a lessee for life : 
 Doe V. Jones (1846), 15 M. & W. 580 ; Doe v. Tidhuri/, 14 C. B. 
 p. 325 ; but it is restricted to the case of inclosures of waste 
 land: Lord Hastimjs v. Sadler (1898), 79 L. T. 355. It is 
 doubtful whether it applies to encroachments by a copyholder so 
 as to make the land thus taken part of the copyhold tenement : 
 Att.-Gen. v. Tomline (1880), 15 C. D. 150, C. A. 
 
 The rule applies, not only where the land inclosed adjoins 
 the demised premises, but also where it is separated from them 
 Iper Parke, B., in Kingsmill v. Millard (1855), 11 Ex. 313), pro- 
 vided the distance is not so great that the tenant must be pre- 
 sumed to have inclosed for his own benefit. " It is not 
 necessary," said Willes, J., in Earl of Lishurne v. Davies (1866), 
 L. P. 1 C. P. p. 268, " that the encroachment should be con- 
 terminous with the holding. It is enough if it is so near that 
 by reason of its nearness the tenant gained the opportunity of
 
 CHAP. I.] LANDLORD AND TENANT. 109 
 
 making it, and the landlord, mlglit have tacitly acquiesced in it." 
 In that case there was nothing but a river and a strip of waste 
 land between the demised premises and the inclosure, and it 
 was held that the distance was not a circumstance to rebut 
 the ordinary presumption ; and so, too, in Andrews v. Hailca 
 (1853), 2 E. & B. 319, where only a road intervened. 
 
 And though it is said that, to exclude the rule, the intention Subsequent 
 of the tenant to inclose for himself must be shown at the time, encroach.- ° 
 this does not seem to prevent a subsequent severance of the nient. 
 inclosure from the demised premises. "Even though," said 
 Parke, B., in Kingsmill v. Jlillard (1855), 11 Ex. p. 318, *' at the 
 time of making the encroachment there is nothing to rebut the 
 presumption that the tenant intended to hold it as a portion of 
 his farm, yet circumstances may afterwards occur by which it 
 may be severed from his farm ; for instance, if the tenant 
 conveys it to another person, and the conveyance is com- 
 municated to the landlord, then it can no longer be considered 
 as part of the holding. But if the landlord is allowed to remain 
 under the belief that the encroachment is part of the farm, the 
 tenant is estopped from denying it, and must render it up at the 
 end of the term as a portion of the holding." Where a con- 
 veyance in fee is made by the tenant, but the deed is not 
 delivered and possession under it is not taken, this will not 
 prejudice the landlord's claim : Doe v. Jones (1846), 15 M. & AV. 
 580. 
 
 The presumption that the land inclosed is added to the Encroach- 
 kolding arises also where the land belongs to the landlord, ^f landlord. 
 and it is immaterial that he has assented to the encroachment. 
 This does not make the tenant tenant at will of the inclosed 
 portion, so as to enable him to gain a title under sect. 7 
 of the E. P. L. A., 1833. " The fact," said Willes, J., in 
 niiitniorr V. liiimphrics (1871), L. E. 7 C. P. p. 6, "that the 
 landlord knows that the tenant is encroaching on his land, and 
 from good nature takes no notice, and does not turn the tenant 
 out, but allows him to hold the encroachment on the same 
 terms as if it had been part of the holding, cannot, in good 
 sense, put the landlord in a worse position than if the tenant 
 had taken originally without any assent, and by mere wrong 
 unknown to his landlord." 
 
 AVliore the tenant takes in land Ijclonging to his landlord ?'"'V"^, I'V 
 
 ^ . . . land winch 
 
 \\hich was not originally included in his holding, but it is not is not waste.
 
 no 
 
 LAND AND RENT-CHARGES. 
 
 [CHAP. I. 
 
 waste land, so that it is not subject to the above presumption, it 
 is a question of fact to be decided on all the circumstances of 
 the case whether he has taken it in as part of his holding ; if 
 he has, and if he has held it for more than twelve years, he is 
 entitled to retain it till the end of his term, but must then give 
 it up to the landlord with the original land : Tahor v, Godfreij 
 (1895), 64 L. J. Q. B. 245. In Doe v. Man^tnj (1857), 17 Q. B. 
 373, the owner of plots A and B, who had demised A to Massey 
 for building, expressly refused to grant him a lease of B or to 
 give permission to build on it, telling him that if he built there, 
 he must build on his own responsibility. Subsequently, Massey 
 built on B, the owner not interfering and never receiving any 
 rent in respect of B. It was held that B was not to be regarded 
 as added to the demised premises. 
 
 And where a person is in possession of land under such 
 circumstances that the statute is running in his favour, and 
 he takes a lease of adjoining land belonging to the same 
 owner, this does not alter the character of his previous 
 possession so as to lead to the inference that the land .which 
 he was occupying as his own he afterwards occupies as part 
 of the demised premises : Dixon v. Baty (1866), L. E. 1 Ex. 259. 
 
 Adverse 
 occupation 
 durinsr lease. 
 
 Termination 
 of lease by 
 surrender. 
 
 (2) III Favour of Stran(/crs. 
 (i.) Adrcrsr Occupation. 
 
 The effect of adverse occupation of land by a stranger during 
 the currency of a lease depends on the same considerations as 
 in any other case where the immediate right to possession is- 
 in one person, and the reversion or other future interest is in 
 another. As against the lessee, the statute runs from the time 
 when the wrongful possession commences : Pooh- v. (JriJfitJt 
 (1864), 15 Ir. C. L. E. p. 290. As against the lessor, it does 
 not run until the termination of the lease. But from that date 
 it runs against him and against any person claiming an interest 
 subsequently created by him, such as a lessee claiming under 
 a lease granted subsequently to the expiration of the old lease : 
 Kcnnedij v. Woods (1868), Ir. E. 1 C. L. 76 ; 2 C. L. 436, C. A. 
 
 \Yhere the lease is terminated by surrender, whether express 
 or implied, but vacant possession is not given by the lessee to 
 the lessor, the effect, as regards the lessor's right of entr}-, will
 
 CHAP. I.] LANDLORD AND TENANT. Ill 
 
 be different according as the land is at the date of surrender in 
 the occupation of a stranger or of an under-lessee. It was held 
 in ('or2)us Christi College v. Rogers (1879), 49 L. J. Q. B. 4, C. A., 
 that, in the case of a surrender and simultaneous grant of a new 
 lease, there is no moment when the lessor is entitled to enter, 
 and consequently the statute does not commence to run against 
 him. But in Ecclesiastical Commissioners v. Howe (1880), 5 
 App. Cas. 736, Lord Selborne, C, pointed out that an estate in 
 possession vests in the lessor out of which the new leasehold 
 interest is derived, and if the occupier is a person without title 
 — whether a trespasser or a disseisor — the lessor's estate in 
 possession carries with it the right to enter upon the land, and 
 the statute begins to run. But if the occupier is an under-lessee, 
 rightfully in possession under the lessee, he is not aff'ected by 
 the surrender. Consequently the lessor has no such right of 
 entry, and the statute does not run against him : see also 
 Ecclesiastical Commissioners v. Treemer, [1893] 1 Ch. 166. If, 
 however, at the date of surrender a stranger has already gained 
 a title against the lessee, the latter has no right of possession, 
 and he cannot by surrender confer a right of entry upon the 
 lessor. In this case, the lessor's right of entry does not arise 
 until the natural expiration of the term, and, until then, the 
 statute does not run against him : Walter v. Yalden, [1902] 2 
 K. B. 304. Where the lessees are trustees, and a beneficiary 
 is in possession, his possession is the possession of the trustees. 
 Hence, if leases of estates X and Y are vested in the same 
 trustees upon different trusts, and the X beneficiaries go into 
 possession of part of Y, the possession of both estates is 
 throughout in the trustees, so that successive surrenders and 
 grants of new leases will duly take effect, and will prevent 
 the X beneficiaries from acquiring a title to Y: East Stonehouse 
 Urban Council v. Willoughhg Brothers, [1902] 2 K. B. 318. 
 
 (ii.) Adverse Receipt of Rent. 
 
 Where a stranger is in wrongful receipt of rent of 20.s'. or 
 more reserved by a lease in writing, the statute runs against 
 the lessor from the first such receipt : — 
 
 "When any person shall be in possession or in receipt of the ,, ,, ,■ 
 profits of any land, or in receij)t of any rent, by virtue of a lease issiijs.'o! ' 
 in writing l)y which a rent amounting to the yearly sum of Lessor's right
 
 112 
 
 LAND AND RENT-CHARGES. 
 
 [CIIAr. I. 
 
 (^f entrj' 
 jifcrucs on 
 ■wrongful re- 
 ceipt of rent. 
 
 Eeceipt of 
 rent 
 
 ■equivalent tc 
 possession. 
 
 twenty shillings or upwards shall be reserved, and the rent 
 reserved by such lease shall have been received by some jjcrson 
 wrongfully claiming to be entitled to such land or rent in 
 reversion immediately expectant on the determination of such 
 lease, and no payment in respect of the rent reserved by such 
 lease shall afterwards have been made to the person rightfully 
 entitled thereto, the right of the person entitled to such land 
 or rent subject to such lease, or of the person through whom he 
 claims, to make an entry or distress or to bring an action after 
 the determination of such lease, shall be deemed to have first 
 accrued at the time at which the rent reserved by such lease 
 was first so received by the person wrongfully claiming as afore- 
 said; and no such right shall be deemed to have first acci-ued 
 upon the determination of such lease to the person rightfully 
 entitled." 
 
 Previously to 1833 adverse receipt of rent was not an 
 actual disseisin of the freeholder, and according to Doc v. 
 Ijanvers (1806), 7 East, 299 (see argument in CJiolmoudelci/ 
 V. Clinton (1821), 4 Bligh. p. 37), it did not affect his right to 
 recover the land at the end of the term. But the receipt of 
 rent amounts to possession of the estate for the purpose of 
 making the receiver the apparent owner, and an adverse receipt 
 is virtually a dispossession of the true owner, and ought to 
 have the same effect on his title as dispossession : see First 
 Eeport of Eeal Property Commissioners, p. 47. Accordingly 
 the above section provides that when any person is in 
 possession of land by virtue of a lease in writing, by which 
 a rent of twenty shillings or upwards is reserved, and the 
 rent is received by some person wrongfully claiming to be 
 entitled to the reversion, the true reversioner's right of entry 
 or action shall be deemed to have first accrued at the time 
 of the first wrongful receipt of rent. "The new statute," said 
 Lord St. Leonards in Scott v. Nixon (1843), 2 Con. & L. p. 191, 
 "put an end to the doubt about the effect of the receipt of rent, 
 for under the old law it could not be deemed an ouster, and no 
 man could by such wTong divest a right : the new Act, however, 
 made receipt of rent equivalent to possession " : cf. Tiriss v. 
 Xohlct (1869), 4 Jr. Pi. Eq. p. 78. The section also applies to 
 the possible case of a lease of a rent-charge, and has been 
 referred to as an illustration of the different meanings given in 
 the statute to "rent " : see Doc v. AnucU(lSlij), 9 Q. B. p. 356 
 {sti2)ra, p. 23).
 
 CHAr. I.] LANDLORD AND TENANT. 113 
 
 The effect of sect. 9, taken in connection with sect. 34, is to 
 extinguish the title of the reversioner; the nature of the title 
 acquired by the adverse receiver of the rents will be considered 
 subsequently: infra, p. 126. 
 
 Since the operation of the statute depends upon the receipt Actual 
 of rent — a receipt which must be actual and not constructive ^'^°®^P*- 
 merely (Ttciss v. Nublet, siqn-a) — it follows that the lessee can 
 gain no title under the section by simply withholding rent : Doe 
 V. Oxcnham (1840), 7 M. & W. 131 ; Gvant v. Ellis (1841), 9 
 M. k W. 113; nor can a stranger gain a title to the freehold 
 by entering during the continuance of the lease : Chadwick v. 
 Bwcuhcood (1840), 3 Beav. 308. He must receive the rent from 
 the tenant, and, though it is not necessary that he should 
 receive it regularly, he must in effect receive it for the statutory 
 period : see Scott v. Nixon {supra). 
 
 There must not only be an actual receipt of rent by a person Wrongful 
 other than the true reversioner, but he must also wrongfully reversiwi. 
 claim the reversion. Hence it is necessary to consider the 
 character in which he receives the rent, and, in setting up 
 sect. 9 as a defence, the receipt of the rent must be expressly 
 stated to be wrongful, or facts must be alleged which are incon- 
 sistent with a rightful receipt : Shane v. Flood (1855), 5 Ir. 
 C. L. E. 75. The statute does not run, for instance, where the 
 receipt is really in satisfaction of a rent-charge : Doc v. Godsill 
 (1840), 4 Q. B. G03, n {!)) ; or of jointure, even though there is 
 a surplus of which no account is given to the reversioner : 
 Skate V. Keighron (1869), Ir. R. 3 Eq. 574; nor does it run 
 where the rent is received by a person who purports to be the 
 agent of the reversioner : Li/cll v. Kennedy (1889), 14 App. Cas. 
 437 (siqn-a, p. 31). 
 
 "To ascertain," said Walsh, M.E., in Shaic y. Kcir/hron (a.t shawv. 
 p. 578), "whether a person claims wrongfully within the Keighron. 
 meaning of [the] section, I think it is necessary to go beyond 
 the mere circumstance that some one not entitled to the rent 
 lias received and kept it. The section requires not only that 
 the rent should have been received by a person other than the 
 person rightfully entitled, but that it should have been received 
 under some claim of title, and that a wrongful one. For example, 
 if rent were received by a person falsely pretending to be agent 
 to the rightful owner, and who never accounted for it, this 
 would not bar the riglitful owner. The mere fact that the rent 
 
 T.L.A. I
 
 114 
 
 LAND AND EENT-CHAEGES. 
 
 [CHAP. I. 
 
 LyeJl y. 
 Kennedy. 
 
 Claim need 
 not be 
 improper. 
 
 was received and kept by a person other than the rightful owner, 
 no doubt raises a presumption that it was received under a 
 wrongful claim of title ; but that is only a presumption, and 
 may be negatived by the circumstances. Without attempting 
 to define what is requisite to constitute a wrongful claim to land 
 within the meaning of the Act, I think it may be taken that 
 receipt of the rent by a person receiving it under a claim sup- 
 posed to be consistent with — and not in assertion of any right 
 adverse to — the title of the right owner of the reversion, though 
 the claim be unfounded, is not such a receipt as will bar the 
 reversioner under this section." Ljjell v. Eenncdi/ (siijn-a) did 
 not fall within the 9th section, inasmuch as the leases were not 
 in writing, but Lord Selborne considered that the effect of 
 receipt by an agent was the same whatever the nature of the 
 tenancy, and after quoting with approval the first part of the 
 above passage from the judgment in Shaw v. Keighron, he con- 
 tinued (p. 460) : " I am of opinion that what was said by the 
 learned judge is equally true of any other case in which the 
 statute is set up as a bar to the true owner by virtue only of 
 the receipt of rent from tenants in possession. I think that 
 such receipt of rent, in order to exclude the true owner, must 
 always be by the person wrongfully claiming, and not receiving, 
 or claiming to receive, on behalf of the true owner. When 
 the true owner can and does ratify an agency undertaken on 
 his behalf, though without his antecedent authority, the case 
 is the same as though he had himself received the rents." 
 
 But for a claim to be " wrongful " it is not necessary that it 
 should be improper. It is enough that it is inconsistent with 
 the title of the true owner, and this requirement is satisfied 
 though it is put forward under a mistake, and without any 
 intention of depriving the true owner of his property. In 
 Williams v. Pott (1871), 1'2 Eq. 149, the joint application of this 
 principle and of the doctrine of agency had the eflect of barring 
 an owner who was himself in actual receipt of the rent of the 
 land. A tenant in tail died in 1848, without having barred 
 the estate tail, but having by his will devised all his real estate 
 to his wife. The eldest son and heir in tail entered into receipt 
 of the rents, and received them until 1866 as agent for his 
 mother. From that year until her death in 1869 the rents 
 were still received by an agent on her behalf. It was held by 
 Lord Eomilly, M.E., that, through the agency of her son, the
 
 CHAr. I.] LANDLORD AND TENANT. 115 
 
 mother had been in receipt of the rents under a wrongful claim 
 of title, and he rejected the contention that "wrongfully" implied 
 an intentional and improper claiming of the rent. " It means," 
 he said, " a person not entitled, who makes a claim to the rents 
 against a person who is entitled": see Ilounsdl v. DiinuiiK/, 
 [1902] 1 Ch. 512. 
 
 Where premises are let for a term at a single rent, and Severance of 
 subsequently the reversion to a small part becomes vested in A., ^"'^^®^^^°"' 
 w^hile the reversion to the bulk of the premises is vested in B., 
 the receipt of the entire rent by B. does not give him a title to 
 A.'s portion of the premises. A. is not entitled to any separate 
 part of the rent until there has been an apportionment, and B.'s 
 receipt of the whole rent is not wrongful : Lmjhurn v. Gridlcij 
 (1892), 40 W. E. 474.
 
 116 L.\ND AND EENT-CHAEGES. [CHAP. I. 
 
 Section IX. — Possessoiiy Titles. 
 (1) Coutinuous Possession for iliv Statutoyy Period. 
 Possession for 'W'lien there has been continuous possession for the statutory 
 period confers period by the person in whose favour the statute began to run, 
 " ^^^ ^' or by such person and by other persons claiming through him, 
 
 the title of the true owner is at the end of such period extinguished, 
 and the title to the land is vested in the possessor. 
 
 K. P. L. A., a ^Yt the determination of the period limited bv this Act to 
 
 1833 s. 34. . . ' . 
 
 'Pjj^lg ' " any person for making an entry or distress, or bringing any writ 
 
 extinguislicd. of qiuire impcdit or other action or suit, the right and title of such 
 
 person to the land, rent, or advowson for the recovery whereof 
 
 such entry, distress, action, or suit respectively might have been 
 
 made or brought within such period shall be extinguished." 
 
 Under the former Statutes of Limitation (32 Hen. 8, c. 21 ; 
 21 Jac. 1, c. 16) the lapse of time barred the true owner's remedy, 
 but did not otherwise affect his title: Hunt v. Burn (1702),. 
 2 Salk. 422. But now the title is, after the lapse of the statutory 
 period, absolutely extinguished, and it cannot be revived by 
 re-entry: Brassinf/tou v. Llev:clhjn (1858), 27 L. J. Ex. 297;. 
 Bryan v. Cowdal (1873), 21 W. E. 693 ; cf. Jack v. Walsh (1842), 
 4 Ir. L. E. 254 ; or by acknowledgment under sect. 14 : Sanders 
 V. Sanders (1881), 19 C. D. 373, C. A., overruling Stansfield v. 
 Hohson (1853), 3 D. M. & G. 620; see Re Hohhs (1887), 
 36 C. D. 553. "Where a lessee dies intestate, and one of the 
 next-of-ldn enters and holds for twelve years, and then takes 
 out administration, his returning the leaseholds as part of the 
 intestate's effects has no greater effect than an acknowledgment,. 
 and does not revive the intestate's interest for the benefit of the 
 estate : Be M'Chire and Garretfs Contract, [1899] 1 I. E. 225. 
 Gibson V. Wise (1887), 35 W. R. 409, where the owner saved 
 his title by granting a lease after the statutorj^ period, is opposed 
 to the authorities. 
 
 Similarly a rent-charge cannot be revived by a payment made 
 after it has been extinguished by non-payment for the statutory 
 period: see Hanks v. PaUing (1856), 6 E. & B. 659. And a 
 judgment, obtained by default, for arrears of a tithe rent-charge 
 which has been extinguished by the statute, does not revive the 
 rent-charge on the ground of estoppel : Irish Land Commission y^ 
 Bi/an, [1900] 2 I. E. 565, C. A.
 
 CHAP. I.] rOSSESSOEY TITLES. 
 
 The Xcir Title. 
 
 117 
 
 It has been said that the effect of the statute is " to make a The new 
 pariiamentaiy convej-ance of the land to the person in posses- 
 sion " after the period of twelve years has elapsed : _;)t'r Parke, 
 B., in Doe v. Sunmer (1845), 14 M. & W. 39 ; cf. Scott v. Xixou 
 <1843), 3 Dr. & War, p. 407; Incorj). Society v. Richards (1841), 
 1 Dr. & War. p. 289 ; Burroughs v. M'Creight (1844), 1 Jo. & Lat. 
 p. 303 ; Dan-kins v. Lord Penrhijn (1877), 6 C. D. p. 323. Thus 
 a person who has gained a title adverse to a mortgagor is 
 entitled to redeem : Fletcher v. Bird (1896), Fisher on Mort- 
 gages, 5th ed. 972. And under a system of registration of title, 
 the possessor, when this new title is complete under the statute, 
 is entitled to be registered as owner : Re JIaijden, [1904] 1 I. R. 1, 
 on the L3cal Registration of Title (Ireland) Act, 1891. 
 
 But there is, in fact, no conveyance or transfer of the old 
 title. The statute confers a new title, which is independent of 
 the old title. Hence, where the title of a lessee is barred by 
 adverse possession during the currency of the lease, the lease 
 cannot be treated as assigned to the possessor so as to render 
 him liable on the covenants : Tiehhorne v. Weir (1892), 67 L. T. 
 735, C. A. And similarly, since the title arises under the negative 
 provisions of the statute, the x^ossessor cannot enjoy an}^ right, 
 such as a way of necessity, which assumes a grant : Wilkes v. 
 Greemray (1890), 34 Solicitors' Journal, 673, C. A. 
 
 But though the title of the former owner is extinguished. Paramount 
 the land remains subject to rights which were not incident, but ° 
 paramount to, his estate. Of this nature are legal easements, and 
 also the restrictions on the use of the land — or -negative ease- 
 ments — created by restrictive covenants entered into by the Restrictive 
 former owner or one of his predecessors in title. Such ^o^^'^^'^ ^• 
 covenants confer upon the covenantee an equitable interest in 
 the land which is binding on all persons to whom the land 
 comes, until there is a purchaser for value without notice. They 
 are binding, therefore, on persons acquiring a title by posses- 
 fiion, and on purchasers from them who have either actual or 
 constructive notice. And a purchaser has constructive notice 
 of covenants which he would discover if he called for and 
 investigated the title for forty years : Re Nishet (ind Potts' Con- 
 tract, [1906] 1 Cb. 386, C. A. And upon the same principle, 
 apparently, express trusts create interests paramount to the 
 €state of the trustee, and are not necessarily extinguished at
 
 118 
 
 LAND AND RENT-CHARGES. 
 
 [CHAr. I. 
 
 Possessory 
 title forced on 
 purchaser. 
 
 Nature of the 
 now title. 
 
 the same time as the trvistee's title : supra, p. 80. And a 
 person who acquires a title to a leasehold interest by possession 
 takes subject to all the incidents of the tenure other than 
 liability under the covenants in the lease ; he takes, therefore, 
 subject to a statutory restriction on assignment : O'Connor v. 
 Foleu, [1906] 1 I. R 20, C. A. 
 
 The Court has sometimes forced a possessory title on a 
 purchaser: Scott \. Nixon (1843), 3 Dr. & War. 388; Tutldllx. 
 liogers (1844), 1 Jo. & Lat. 36, 72 ; Games v. Bonnor (1884), 54 
 L. J. Ch. 517, C. A. ; but this is only done where a particular 
 objection, apparent on the face of the title as shown, is cured by 
 long possession. The Court does not compel the purchaser to 
 take a leap in the dark ; 2)cr Farwell, J., In re Xishct and Potts'" 
 Contract {supra). And under an open contract it is not sufficient 
 to show a possessory title for twelve years ; a title for the full 
 forty years must be shown : Jacobs v. Ilcrell, [1900] 2 Ch. 858, 
 p. 869; though twelve years' possession may be enough to- 
 extinguish an outstanding legal estate and vest the legal estate 
 in the possessor: lU Cussons, Ltd. (1904), 73 L. J. Ch. 296. 
 Where the conditions of sale of copyhold property debar the 
 purchaser from requiring evidence of the payment of a charge 
 more than twelve years old, except a statutory declaration 
 at his expense that there has been no payment or claim within 
 twelve years, and there appears on the Court rolls an entry 
 before that period of a conditional surrender by way of mortgage, 
 the purchaser cannot require this to be vacated : HopJdnson v. 
 Chamberlain, [1908] 1 Ch. 853. 
 
 The new possessory title is in general an estate in fee simple^ 
 If the possessor is a disseisor, the true owner's estate has been 
 turned upon the disseisin to a right of entry, and the fee is 
 already vested in the disseisor. In such a case the only effect 
 of the completion of the statutory period is to extinguish this 
 right of entry, and to make the disseisor's estate indefeasible : 
 cf. Keefe v. Kirby (1857), 6 Ir. C. L. E. p. 594. If, on the other 
 hand, the possessor, although the statute is running in his 
 favour, is no disseisor — as where he is tenant at sufferance or 
 tenant at will — the statute has a greater eflect, and although, 
 while the statute is running, lie is no more than possessor, yet, 
 at the end of the statutory period, he is at once clothed with the 
 seisin. There is no longer any estate vested in the former 
 owner, and since the law does not contemplate that the
 
 CHAr. I.] POSSESSORY TITLES. 119 
 
 ownership shall be vacant {cf. 2 Sm. L. C, 11th eel., p. 720), the 
 possessor becomes seised in fee., " I am clearly of opinion," said 
 Sugden, L.C., in Scott v. Nixon (1843), 3 Dr. & War. p. 405, 
 "that by the effect of the statute, after the proper period of 
 limitation has passed, the legal fee simple is in the party who 
 has been in possession during that period." As to disseisin, see 
 Taylor v. Horde (1757), 2 Smith's L.C., 11th ed. 575. 
 
 But where a mortgagee goes into possession so that the 
 statute runs in his favour, and dies before the mortgagor's 
 equity of redemption is barred, the mortgagee's title devolves 
 as personalty and goes, in the event of his intestacy, to his next 
 of kin : Re Lovcridgc, [1902] 2 Ch. 859. 
 
 If two or more persons are in possession, they acquire a title Joint tenancy. 
 in joint tenancy, and on the death of one, before the tenancy is 
 severed, his share goes to the survivor : Ward v. Ward (1871), 
 (5 Ch. 789 ; Boiling v. Hohday (1882), 31 W. R. 9 ; Smith v. Savage^ 
 [1906] 1 I. R. 469 ; unless, indeed, the circumstances show that 
 their interest must be a tenancy in common, as where bene- 
 ficiaries entitled in common acquire by possession the legal 
 estate : see cases cited in the next paragraph. 
 
 Possessory Leasehold Title. 
 
 Where a stranger enters and dispossesses a lessee, this is in Dispossession 
 strictness a disseisin of the freeholder (Prest. Abstr. II. 296), °^ ^^''^^• 
 and a freehold title is vested in the disseisor : cf. Litt. s. 411 ; 
 Co. Litt. 250b ; though the statute does not run against the 
 freeholder till the expiration of the term. But this technical 
 doctrine of disseisin cannot now be relied on. Any interest 
 acquired by one who enters during the continuance of a lease is 
 limited to the duration of the term, and is a leasehold interest : 
 RanJdn v. ^TMurtry (1889), 24 L. R. Ir. p. 297. Moreover, it is 
 subject, as regards the lessor, to all the lessor's rights except 
 such as arise out of contract : O'Connor v. Foley, [1906] 1 I. R. 
 20, C. A. {supra, p. 118). Next-of-ldn beneficially entitled under 
 an intestacy, who enter without taking out administration, 
 become after the statutory period entitled to the legal estate as 
 tenants in common in accordance with their beneficial interests : 
 Marten v. Kmrnry (1903), 36 Ir. L. T. R. 117. Thus, if a widow 
 of an intestate enters on his leaseholds on behalf of herself and 
 an infant son, she acquires one-third for herself and two-thirds 
 for the son : Mae(Jormaek y. Courtney, [1895] 2 I. R. 97. But if
 
 120 
 
 LAND AND EENT-CHAEGES. 
 
 [CHAP. I. 
 
 some of the next-of-kin enter to the exclusion of the rest, they 
 become tenants in common of their own original shares, and 
 joint tenants of the shares of the excluded next-of-kin : Smitli v. 
 Savage, [1906] 1 I. E. 469. This refinement was overlooked in 
 Coyle V. M'Fadden, [1901] 1 I. E. 298. 
 
 If a stranger enters during a yearly tenancy, and pays the 
 rent to the landlord, he acquires at once a tenancy by estoppel 
 against the landlord ; but when the statute has run in his 
 favour against the lessee, this tenancy by estoppel is no longer 
 required, and he becomes entitled to an ordinary tenancy from 
 year to year : Jackson v. M' Master (1890), 28 L. E. Ir. 176, C. A. ; 
 Mulcairc v. Lane-Joynt (1893), 32 L. E. Ir. 683, C. A. 
 
 Successive 
 intruders. 
 
 Eecovery of 
 
 possession. 
 
 (2) Non-Continuous Possession. 
 
 If, before the statutory period has expired, the possession is 
 left vacant, the true owner is deemed to be in possession again, 
 and the statute ceases to run : Trustees Aycncij Co. v. Short 
 (1888), 13 App. Cas. 793 ; see Willis v. Earl Howe, [1893] 2 Ch. 
 545 ; Samuel Johnson and Sons v. Brock, [1907] 2 Ch. 533. But 
 if the first possessor is followed by another intruder, who in turn 
 is followed by a third, all within the statutory period, so that 
 there is a succession of independent possessions, the extent of 
 the interest of each possessor, both while the statute is running 
 against the true owner, and after it has run, depends upon the 
 nature of the title which must be shown by a plaintiff' in an 
 action for recovery of land. 
 
 Title in Ejectment. 
 
 The general rule in an action to recover possession of land 
 is the same as in the old action of ejectment. The plaintiff must 
 recover on the strength of his own title, not on the weakness 
 of the defendant's : Goodtitle v. Baldwin (1809), 11 East, p. 495. 
 "For possession gives the defendant a right against every man 
 who cannot show a good title " : 2^er Lord Mansfield in Boc v. 
 Harvey (1769), 4 Burr, p. 2487. And this has sometimes been 
 interpreted as meaning that the plain tift''s title must be good 
 against all the world, so that he will fail if it can be shown that 
 the real title is in another. Possession, indeed, though shown 
 for a short time only, was held to be sufficient to confer the right 
 to recover the land as against a wrongdoer : Doe v. Dyhall (1829), 
 Moo. & M. 346, note ; Doe v. Martin (1841), Car. & M. 32. But
 
 CHAP. I.] . POSSESSORY TITLES. 121 
 
 in Doe v. Barnard (1849), 13 Q. B. 945, these cases were treated 
 as having been decided upon the ground that " possession is 
 prima facie evidence of title, and, no other interest appearing in 
 proof, evidence of seisin in fee" ; and it was said that they did 
 not warrant the statement that " possession alone is sufficient 
 in ejectment (as it is in trespass) to maintain the action." 
 
 In Doc V. Barnard, now overruled, there was a possession by J>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 >' ^® , 
 
 <i(ivGr8B to 
 
 It may be that for the purpose of certain remedies the Crown is Crown, 
 assumed to remain in possession ; as for bringing an information 
 of intrusion, which is in the nature of trespass ; or for asserting 
 the right to require trespassers to account as baihffs to the 
 Crown. But in general a possession can be gained against 
 the Crown just as against an individual. Where the possession 
 of a stranger has continued for upwards of sixty years, the effect 
 is to extinguish the estate of the Crown and to vest the seisin in 
 fee in the possessor : Att.-Gen. v. Hothani (1823), Turn. & Buss, 
 p. 218; Ttithill v. Rogers (1844), 1 Jo. & Lat. p. 67; infra, 
 p 147 ; and, before that period has elapsed, it is clear that under 
 the Nullum Tempus Act there may be a possession adverse to 
 the Crown in point of fact : Doe v. Morris {supra). As to the 
 circumstances w^hich will establish such a possession see Att.- 
 Gen. for Rritisk Honduras v. Bristowe (1880), 6 App. Cas. 143, P. C. 
 Where an entire manor or other district has been in charge to 
 the Crown within sixty years, acts done on different parts of the 
 land by different persons for the purpose of finding and burning 
 limestone, and disposing of the lime, do not necessarily amount 
 to such adverse possession as to displace the title of the Crown, 
 although they may have been continued for more than sixty 
 years : JJoe v. Roberts (1844), 13 M. l\: W. 520. 
 
 Although no title has been gained against the Crown under i-resumptiou 
 the statute, the same effect may sometimes be produced by ofgnmt. 
 allowing long possession to raise a presumption of a grant from
 
 142 
 
 LAND AND RENT-CHAEGES. 
 
 [CHAP. L 
 
 Pleading- by 
 jjossessor. 
 
 Pleading the 
 general issue. 
 
 Irish 
 
 statutes. 
 
 the Crown ; but for this purpose it is essential that the Crown 
 shall not be restrained from alienation, so that a grant is 
 possible : Goodtitic v. Baldwin (1809), 11 East, p. 488 ; Doc v. 
 Wilson (1855), 10 Moo. P. C. p. 527 ; cf. Mills v. Commissioners of 
 New Forest (1856), 18 C. B. 60 ; and as to presumption of 
 enfranchisement, see lioe v, Ireland (1809), 11 East, 280 
 (sitjjra, p. 94). 
 
 At common law, where the Crown sued for possession of 
 lands, the possessor could not, as in ordinary actions of the 
 same nature, rely upon his possession, but was bound to plead 
 his title specially (Com. Dig. " Pra^rogative," D. 74). This was 
 put upon the ground that the king's title was of record, and 
 therefore the defendant had notice of it : 4 Inst. 116 ; Att.-Gen. v. 
 Hallett (1847), 1 Ex. p. 213. And the rule still holds where 
 the Crown has been out of possession for less than twenty years. 
 But where the Crown has been out of possession for more than 
 that period, the possessor is allowed by 21 Jac. 1, c. 14, to plead 
 the general issue and need not plead specially, and he then 
 retains possession until judgment has been given for the Crown : 
 <;/. Atf.-Gcn. V. St. AuUjn (1811), Whitw. p. 236. In other words, 
 twenty years' adverse possession gives i[, prima facie title against 
 the Crown, and the burden is thrown on the Crown to prove its 
 title in the first instance. This proof may be given at the 
 hearing of the information, and the title need not first be found 
 by inquest of office : Atf.-Gcn. v. Parsons (1836), 2 M. & W. 23. 
 
 The possessor cannot be deprived of his statutory right to 
 plead the general issue by a mere allegation on the part of the 
 Crown of possession by the Crown within twenty years: Att.-Gen. 
 V. Mitchell (1882), Hayes, 551. If there is a dispute as to this 
 fact, it must be determined at the trial, and the plea of the 
 general issue cannot be set aside on affidavit of possession by 
 the Crown: Att.-Gen. v. D'Arcy (1830), Hayes, 85. On the 
 other hand, the possessor pleads the general issue at liis own 
 risk ; and if it is shown that the Crown has been in possession 
 within twenty years, judgment necessarily goes for the Crown 
 inasmuch as the possessor has now no prima facie title, and 
 has alleged no special title : Att.-Gen. v. Ward (1832), Hayes, 555. 
 
 The Statute of Limitation, 21 Jac. 1, c. 2, was never enacted 
 for Ireland; but the pleading statute (21 Jac. 1, c. 14) was 
 adopted for that country by 15 Car. 1, c. 1. Some years after 
 the Nullum Tempus Act had been passed for England, a
 
 CHAP. I.] 
 
 CROWN LANDS. 
 
 143 
 
 corresponding statute was passed for Ireland — 48 Geo. 3, c. 47. 
 This, however, differed in certain respects from the English Act, 
 and it omitted some of the provisions of that Act which had been 
 needlessly reproduced from 21 Jac. 1, c. 2. 
 
 (2) The Nullum Temp lis Acts. 
 
 (i.) Present Interests in the Crown. 
 
 The English and Irish Nullum Tempus Acts are so verbose The Nullum 
 that it will be better to present them here in an abridged form. ^^"^^^^ - ^ '*• 
 The full text will be found in the Appendix. By omitting 
 unnecessary words, and using the phrase " land and heredita- 
 ments " instead of " manors, lands, rents, tithes, or heredita- 
 ments," and "rents and profits " instead of " rents, revenues, 
 issues, or profits," the whole effect can be presented shortly and 
 without any sacrifice of meaning. The Acts only refer to 
 proprietary rights of the Crown, such as in the case of an 
 individual would be personal and beneficial. They do not touch 
 the enforcement of rights as regards which the Crown is 
 invested with a public duty, such as charities: Att.-Gen. v. 
 Magdalen College (1854), 18 Beav. p. 241. 
 
 (A) Limitation of Action. 
 
 The following is the negative or limiting clause of the Nullum 
 Tempus Act (9 Geo. 3, c. 16) ; it is followed by a positive clause, 
 definitely establishing the title of the subject who has been in 
 possession for the prescribed period : — 
 
 "The Crown shall not sue any person for or in any wise con- 
 cerning any lands or hereditaments (other than liberties or 
 franchises), or the rents and profits thereof, by reason of any 
 right or title which has not first accrued within sixty yeai's next 
 before the commencement of the suit, unless the Crown or its pre- 
 decessors n title have been answered Ijy force of any such right or 
 title the rents or profits thereof [or the rents or profits of any 
 honour, manor, or other hereditament lohereof the premises in question 
 are part^ within the said space of sixty years [or that the same 
 have hren duly in charrjc to the Crown or have stood insupcr of record, 
 within such space\" 
 
 The parts in italics were, save as to rent-charges withheld by 
 the terre-tenant, repealed by the Crown Suits Act, 1801 {infra, 
 p. 144). Prior to such repeal the statutory period was excluded 
 
 Limitation on 
 claim by 
 Crown. 
 
 English Nul- 
 lum Tempus 
 Act, s. L 
 clause 1. 
 
 Sixty years' 
 limitation. 
 
 l':flocl of 
 clause.
 
 344 
 
 LAND AND EENT-CHAKGES. 
 
 [CHAP. I. 
 
 if the Crown could bring itself within any one of three ex- 
 ceptions, namely : — 
 
 (1) Eeceipt of rents and profits of the land or of an honour, 
 
 manor, or hereditament of which the land was part ; 
 
 (2) That the rents and profits had been duly in charge to 
 
 the Crown ; or 
 
 (8) That the "rents and profits " had stood insu2)('r of 
 record. 
 
 "Duly in charge" originally meant that the rents and 
 profits were entered in the roll of the pipe : 3 Inst. 18i> ; 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<m v. Uppmann (1837), 5 CI. & F. 
 1 ; (1841), 8 CI. & F. p. 140; Alliance Bank v. Carcij{imG) 5 C. 
 P. D. 429 ; Foote's Private International Jurisprudence, 3rd. ed. 
 p. 516. And a creditor's administration action will lie in England 
 in respect of a debt contracted in India, although in that 
 country the debt would be barred by the Indian Statute of 
 Limitations (Art. XIV, 1859) : Finch v. Finch (1876), 45 L. J. Ch. 
 816. As to the rule where the foreign statute extinguishes 
 'the debt, vide infra, p. 295. Conversely, where a Scotch creditor, 
 whose claim has been rejected in an English administration as 
 being statute-barred according to the English law, recovers 
 Judgment in Scotland where the claim is not barred, a new 
 cause of action arises in England on the Scotch judgment in 
 respect of which the creditor can prove in the administration 
 action : Be Loiv, [1894] 1 Ch. 147, C. A. 
 
 Former 
 exception of 
 merchants' 
 accounts. 
 
 Section V. — Effect of the Statute in Particular Actions. 
 
 (1) Accounts. 
 
 The exception of merchants' accounts in the Limitation Act, 
 1623, enabled an action for such an account to be brought at 
 any time, although there had been no item entered for more 
 than six years (Bohinson v. Alexander (1834), 2 CI. & F. 717), 
 provided there had been no settlement. If there had been a 
 settlement, the lapse of six years was a bar to any proceedings 
 upon the account, just as in the case of an ordinary account 
 {Farrington v. Lee (1678), 1 Mod. 268). The exception only 
 applied to an action of account properly so called, not to an 
 action of assumpsit for the several items of which the account 
 was composed, or for the general balance {hujlis v. Haigh (1841), 
 8 M. & W. 769) ; and it did not apply to mere cross accounts 
 between tradesmen for goods sold, in the absence of an agree- 
 ment under which the prices were to be treated as items in a 
 mutual account : Cottam v. Bartridge (1842), 4 Man. & Gr. 271.
 
 CHAP. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 215 
 
 Actions for an account, not within the exception of merchants' All actions of 
 accounts, were barred if there had been no entry in the account baned in six 
 within six years; but where there had been an entry within years. 
 that time, this was held to imply an acknowledgment of the 
 whole account being open, and a promise to pay the balance 
 when ascertained : Catling v. Shoulding (1795), 6 T. E. p. 193. 
 But the rule was in effect abolished by sect. 1 of the Statute of 
 Frauds Amendment Act, 1828 (9 Geo. 4, c. 14), which required 
 an acknowledgment, save where implied from payment of 
 principal or interest, to be in writing and duly signed : Cottam 
 V. Partridge (1842), 4 Man. & Gr. 271 ; and the general 
 limitation upon all actions of account, including merchants' 
 accounts, introduced by the Mercantile Law Amendment Act, 
 1856 (19 & 20 Vict. c. 97), expressly excludes an extension in 
 consequence of items occurring in the account within the six 
 years : — 
 
 "All actions of account or for not accounting, and suits for Merc.L. A.A. 
 
 such accounts, as concern the trade of merchandise between ^^^^' ^- ^■ 
 
 merchant and merchant, their factors or servants, shall be com- ^I'liitation on 
 
 ' ' merchants 
 
 menced and sued within six years after the cause of such actions accounts. 
 
 or suits, or, when such cause has already arisen, then within six 
 years after the passing of this Act ; and no claim in respect of a 
 matter which arose more than six years before the commencement 
 of such action or suit shall be enforceable by action or suit by 
 reason only of some other matter or claim comprised in the same 
 account having arisen within six years next before the com- 
 mencement of such action or suit." 
 
 In Knox v. Gye (1872), L. E. 5 H. L. 656, at p. 673, Lord Period of 
 "Westbury seems to have regarded this provision as aimed at ^^'"^"^'^• 
 cases where more than six years have elapsed between the last 
 of a series of items and a subsequent entry. But in fact it 
 applies to all items more than six years before action, and 
 prevents them from being revived by subsequent entries, 
 whether within six years of them or no, so as to be recoverable 
 by means of the action. In other words, the section prevents 
 any items more than six years old from being recovered by 
 means of an action of account. It does not follow, however, 
 that such items are to be disregarded in taking the account. In 
 order to ascertain the balance due in respect of items within 
 six years, it is necessary to know how far they have been 
 appropriated in satisfaction of the balance previously due.
 
 216 
 
 ACTIONS OF CONTRACT AND TORT. 
 
 [( HAR. IV. 
 
 Ke-openicf 
 
 settled 
 
 account. 
 
 Hence the account has to be taken -without limit, subject only 
 to the condition that it shall not be carried back beyond a 
 former settlement, and that the final balance shall not include 
 any balance due more than six years before the commencement 
 of the action : cf. Darby & Bosanquet, Statute of Limitations, 
 2nd ed. p. 6. If there is no item within six years the account 
 ■will not be taken at all. 
 
 When it is said that an account is not to be carried back 
 beyond the last settlement, it is assumed that no ground exists 
 for reopening the settled account. Where errors are shown in 
 a stated account, the account is in general not ordered to be 
 taken again de novo, but liberty is given to surcharge and 
 falsify; as to the distinction, see Pit v. Cholmondelci/ (1754), 
 2 Yes. S. 565 ; and for this purpose one error may be sufficient : 
 Gething v. Keighleij (1878), 9 C. D. 547, p. 550. Where, how- 
 ever, there is a fiduciary relation between the parties, or fraud 
 is proved, or the errors are numerous and important, the whole 
 account will be reopened : Williams v. Barbour (1877), 9 C. D. 
 529 ; Be Wchh, [1894] 1 Ch. 73, C. A. And a client, who has not 
 had independent advice and who has paid his solicitor's bills 
 without taxation, is entitled to have settled accounts for costs 
 reopened, notwithstanding the lapse of six years, if he can 
 show that there have been overcharges : Cheese v. Keen, [1908] 
 1 Ch. 245. 
 
 No statutory 
 bar. 
 
 Current 
 account. 
 
 (2) Action in Bern. 
 
 There is no statutory bar to an action in rem, save for 
 seamen's wages (infra, p. 245). In the Admiralty Division 
 .interest is given on damages from the time when the loss was 
 incurred, and is not limited to six years : The Kong Magnus, 
 [1891] P. 223. 
 
 (3) Banking Account. 
 
 Money held by a bank on current account is not subject to 
 a trust in the customer's favour. It ranks as money lent to the 
 banker, with the superadded obligation that it is to be paid 
 when called for by cheque, and, as in other cases of money 
 lent, the statute runs forthwith without demand. Hence, if 
 there is no actual dealing with the account for six years, the 
 right of the customer to an account (Foley v. Hill (1844), 1 Phil, 
 399 ; (1848) 2 H. L. C. 28), or to recover the amount formerly (or
 
 CHAP. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 217 
 
 still) standing to bis credit in the Lank books (Pott v. Clcgn 
 (1847), 16 M. & W. 321), is barred. 
 
 Where, however, money is held bj^ a bank on deposit account, Money on 
 although there is still no fiduciary relation in respect of it, yet, ^*^P°^^*- 
 since notice of withdrawal must be given before the customer 
 can claim it, the statute does not run till such notice has 
 been given: see Atkinson y. Bradford Building Society (1890), 
 25 Q. B, D. p. 380, C. A. And it is the same generally where 
 money is deposited for safe custody, and not as a loan. The 
 statute does not run till actual demand: Re Tidd, [1898] 
 3 Ch. 154. 
 
 (4) Bills of Exchange, Cheques, and Promissory Notes. 
 (i.) Bills of Exchange. 
 A cause of action on a bill of exchange mav accrue to the ^^"^^ ^^ 
 
 ilCtlOll. 
 
 holder against the acceptor, the drawer, and the indorsers, the 
 primary liability being, in case of non-payment of the acceptance, 
 on the acceptor ; and also to each indorser against the parties 
 prior to himself whose names appear upon the instrument. 
 But to constitute the cause of action, certain formalities have 
 in general to be complied with, such as presentment for 
 acceptance, presentment for payment, and notice of dishonour, 
 whether by non-acceptance or non-payment ; and neglect of 
 these formalities will operate as a discharge, so that the cause 
 of action can never arise. If, however, there has been dis- 
 honour and the necessary formalities are complied with, the 
 cause of action is complete, and the statute thereupon runs. 
 
 {a) Dishonour by Non-accciHance, 
 
 Bills of exchange are payable (1) on demand (which includes rrosentmcnt 
 bills payable at sight), (2) at a fixed future time, or (8) at a ance!"^^^ " 
 determinable future time (including bills payable at a fixed 
 period after sight): Bills of Exchange Act, 1882 (ss. 8,10, 11). 
 Presentment for acceptance is needless in class 1. In class 2 
 it is usual in order that the holder may secure the liability 
 of the drawer, but it is not essential. It is only legally 
 recjuired where the bill is payable after sight — since present- 
 ment for acceptance is then necessary to fix the maturity of the 
 instrument and in certain special cases specified in sect. 39. 
 The holder of a bill payable after sight cannot, however, postpone
 
 218 
 
 ACTIONS OF CONTKACT AND TORT. [CIIAr, IV 
 
 Dishonour l)y 
 
 non-acceiit- 
 
 ancc. 
 
 the date of payment and so keep alive the liahiHty of the 
 drawer and indorsers, by not presenting it for acceptance. He 
 must either present it for acceptance or negotiate it within 
 a reasonable time; otherwise the drawer and indorsers are 
 discharged : sect. 40. 
 
 If a bill, whether presentment for acceptance is legally 
 required or not, is not accepted upon presentment, the holder 
 is bound to treat it as dishonoured, and he must at once give 
 notice of dishonour to the drawer and indorsers. If he omits to 
 do so, the drawer or any indorser, to whom notice is not given, 
 is discharged : sect. 48. If he gives the notice, the holder has a 
 right of action against the drawer and each indorser, and the 
 statute forthwith runs in their favour. No fresh cause of action 
 arises upon non-payment when the bill is due: sect. 43 (2); 
 Whitehead v. Walker (1842), 9 M. & W. 506. 
 
 acceptor. 
 
 (h) Dishonour by Non-payment, 
 
 Cause of When a bill is accepted generally, presentment for payment is 
 
 action against ^^^^ necessary to make the acceptor liable (sect. 52 (1)), though 
 of course such presentment is always in fact made. The cause 
 of action accrues against him after the expiration of the last 
 day of grace: sect. 14; Kennedy v. Thomas, [1894] 2 Q. B. 759, 
 C. A. ; and the statute thereupon begins to run in his favour : 
 Morris v. Richards (1881), 45 L. T. 210; cf. Fryer v. Iloe (1852), 
 12 C. B. 437. If the bill is delivered undated, the statute runs 
 from the due date appearing from the bill as afterwards com- 
 pleted: Montague v. FerJdns (1853), 22 L. J. C. P. 187. When 
 a bill is payable at a fixed period after sight, such period is 
 reckoned from presentment for acceptance, and at the end of the 
 period the statute begins to run in favour of the acceptor : 
 Holmes v. Kerrison (1810), 2 Taunt. 323. 
 
 If the acceptance is qualified so as to require presentment 
 for payment, then such presentment is a condition precedent to 
 the liability of the acceptor, and the action does not accrue, or 
 the statute run in his favour, until presentment. As to the 
 time when presentment must be made there is no statutory 
 rule. In the absence of express stipulation, it need not be at 
 the due date of the bill : sect. 52 (2). An unreasonable delay 
 might discharge the acceptor, and possibly the limit for this 
 purpose is six years : infra, p. 220. 
 
 Where pre- 
 sentment for 
 payment 
 required as 
 regards 
 acceptor.
 
 CHAr. IV.] EFFECT OF THE STATUTE IN PAKTICULAR ACTIONS. 219 
 
 Save in the cases where presentment is excused (Bills of Cause of 
 Exchange Act, 1882, (s. 46)), clue presentment for payment is drawer and 
 necessary in order to charge the drawer and indorsers : sect. 45. mdorsers. 
 A bill not payable on demand is duly presented if presented on 
 its due date. A bill payable on demand must be presented 
 within a reasonable time after its issue, in order to render the 
 drawer liable, and within a reasonable time after its indorse- 
 ment, in order to render the indorser liable : sect. 45 (2). If 
 the bill is not paid, then, in order to fix the drawer and indorsers 
 with liability, notice of dishonour must be given to them in 
 accordance with prescribed rules (sects. 48, 49), and the cause 
 of action arises against each upon his receipt of the notice : 
 Castrique v. Bcrnarho (1844), 6 Q. B, 498. Notice of dishonour 
 may be given on the last day of grace, though no cause of action 
 accrues against the acceptor till the "expiration of that day: 
 Kennedy v. Thomas, [1894] 2 Q. B. 759, C. A. As between 
 drawer and indorser time runs in favour of the drawer as from 
 receipt of the notice by him, and not from payment by the 
 indorser at the suit of the holder : Webster v. Kirk (1852), 
 17 Q. B. 944. 
 
 If presentment is excused (see sect. 46), the bill is dis- where pre- 
 honoured by non-payment as soon as it is overdue and unpaid; paymeTus'"^ 
 thereupon notice of dishonour must be sent to the drawer and excused. 
 indorsers, and their liability arises as before on receipt of the 
 notice. But where the bill is payable on demand, it is not 
 overdue till after presentment, and presentment is necessar}' 
 to raise a cause of action against, and make the statute run in 
 favour of, the drawer and indorsers : Re Boijse (1886), 33 C. D. 
 612. In that case the bill was dated in 1872, and was not pre- 
 sented for payment till 1880. "If," said North, J., "the statute 
 applies at all, it could only run from that date, because there 
 was no liability on the part of the drawer until that time." On 
 this view, the fact that presentment for payment is excused does 
 not give a cause of action without presentment, but prevents the 
 discharge of the drawer and indorsers by the omission to present 
 within a reasonable time. It was held, however, by Stirling, J., 
 in lie Bethell, 34 C. D. 561, that, where presentment for payment 
 is excused, it is excused for all purposes, and that the right of 
 action accrues without presentation so soon as the holder is 
 entitled to present the bill — that is, in general, upon the issue 
 of the bill.
 
 220 
 
 ACTIONS OF CONTEACT AND TORT. 
 
 [CHAr. lY. 
 
 Presentment 
 for payment. 
 
 Effect of 
 omission to 
 present. 
 
 (ii.) Clicqucs. 
 
 " A cheque is a bill of exchange drawn on a banker payable 
 on demand " : Bills of Exchange Act, 1882, s. 73. The cheque 
 must be presented within a reasonable time of indorsement to 
 charge the indorser ; that is, it must, in general, be presented or 
 forwarded for presentment on the day after it is received. But 
 failure to present within a reasonable time of issue does not 
 operate as an absolute discharge to the drawer ; it discharges 
 him only to the extent of the loss he has suffered by the 
 omission to present, as where the banker, who had assets of the 
 drawer, has failed : Bills of Exchange Act, 1882, s. 74 ; cf. 
 Laws V. Rand (1857), 27 L. J. C. P. 76 ; RoUnson v. Haicksford 
 (1846), 9 Q. B. 52. In Re Betliell (1887), 34 C. D. 561, Stirling, 
 J., considered that, since a cheque was payable on demand, it 
 was within the rule of Norton v. Ellam (1837), 2 M. &. W. 461, 
 {infra, p. 221), with reference to promissory notes, so that time 
 would run forthwith in favour of the drawer without present- 
 ment. But the drawer of a cheque is not in the same position 
 as the maker of a note. To fix the drawer and indorsers of a 
 cheque with liability, the cheque must be presented — unless, 
 perhaps, where presentment for payment is excused — and notice 
 of dishonour must be given. Only when this is done, does a 
 cause of action arise against them, and thereupon the statute 
 runs in their favour. 
 
 The omission to present within a reasonable time after 
 indorsement discharges the indorser : sect. 45 (2). The effect 
 as regards the drawer of great delay in presentment is not clear. 
 It has been suggested that six years' delay will discharge him 
 by analogy to the statute : Lairs v. Piand (1887), 27 L. J. C. P. 
 76 ; but this use of the statute is misleading. The idea seems 
 to be that the liability on the cheque must in any event 
 cease at the end of six years — that is, either by the liability 
 being discharged or by the action being barred. But such is 
 not the effect. If six years is not too long a delay for present- 
 ment, then the action may arise on presentment at the end of 
 six years, and will not be barred for a further similar period. 
 There is no practical reason, however, for this duplication of the 
 statutory period, and the decision of Stirling, J., in Re Betliell, 
 though, as j List pointed out, open to criticism, seems to be the 
 most convenient solution of the difQcult3% The action accrues
 
 CHAr. IV.] EFFECT OF THE STATUTE IN PARTICULAR ACTIONS. 221 
 
 upon the issue of the cheque, or, if it is not intended for 
 immediate presentation, so soon as the holder is entitled to 
 present it. 
 
 (iii.) Promissorij Notes. 
 In general the provisions of the Bills of Exchange Act, 1882, I'rosentment 
 
 , , . . I , ,^ 1 . 1 • , 1 . ■ for payment 
 
 apply to promissory notes, but the maker stands in the position necessary as 
 of an acceptor, and the provisions as to acceptance are excluded : [q^oi^u- 
 sect. 89. Consequently no presentment for acceptance is 
 necessary. Presentment for payment is necessary in order to Not in general 
 render an indorser liable, but, to render the maker liable, it is ^ak*!-^^*^^ 
 only necessary where the note is expressed to be payable at a 
 particular place : sect. 87. 
 
 Where a note is payable on demand, and presentment is not Notes payable 
 necessary to charge the maker, it is deemed to be immediately ^^ clemaud. 
 due. No demand is necessary to raise a cause of action, and makef^where 
 the statute runs in favour of the maker from the date of the presentment 
 note if it is then issued : Xorton v. Ellam (1837), 2 M. & W. 461 ; "°* ^^^^^'^'^^'y^ 
 Jackson v. Ogg (1859), Johns, p. 400 ; Re George (1890), 44 C. D. 
 627. If it is issued subsequently to its date, the statute runs 
 from the date of issue. Where, for instance, a promissory note, 
 dated and payable on demand, is deposited with a banker to be 
 delivered to the payee on his giving up another note to be can- 
 celled, the cause of action on the new note accrues upon its 
 being received from the bank : Savage v. Aldren (1817), 2 Stark. 
 232. And an agreement that no demand shall be made during 
 the life of the maker does not postpone the operation of the 
 statute as regards the note, though a new cause of action for 
 the debt would accrue by virtue of the agreement on the maker's 
 death : Watkius v. Figg (1863), 11 W. E. 258. 
 
 To charge the indorser of a demand note, the note must be As regards 
 presented within a reasonable time of the indorsement, but in a'^'re-ar'ds"^ 
 determining what is a reasonable time, regard must be had to maker where 
 the nature of the instrument — whether, for instance, it is issued necessary! 
 as a continuing security : Chartered Bank v. Dickson (1871), L. E. 
 3 P. C. 574, p. 579 — the usage of trade, and the facts of the 
 particular case : sect. 86. Since, in the case of the indorser, 
 presentment is necessary to make him liable, the statute will 
 not run in his favour until presentment followed by notice of 
 dishonour ; and where presentment is necessary to charge the 
 maker, X<)rt<))i v. FAlam does not apply, and the statute does
 
 99-> 
 
 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 <f Thanet 
 (1801), 5 Yes. p. 720 n.), or six years {Harrington v. Wheeler 
 (1789), 4 Yes. 686), was too much, though a bill filed fourteen 
 months after the termination of correspondence was in time : 
 Marquis of Hertford v. Boore (1801), 5 Yes. 719. But now 
 it is not safe to assume that any substantial delay will be 
 allowed, and a vendor or purchaser who waits a year and a half 
 {Southcomh v. Bishop of Exeter (1847), 6 Hare, 213), or a year 
 {Watson V. Reid (1830), 1 E. & M. 236), will probably find his 
 remedy gone. And a purchaser of a reversion cannot wait till 
 the reversion falls in to enforce his contract : Levij v. Stogdon 
 (1899), 1 Ch. 5, C. A. 
 
 A family agreement for division of estates has been set aside 
 after nineteen years where material information as to legitimacy 
 had been withheld: Gordon v. Gordon (1821), 3 Swanst. 400.
 
 CHAP, v.] WHERE NO STATUTORY LIMITATION IS APPLICABLE. -i 
 
 Bat ordinary cases of rescission of contract are subject to the 
 principle enunciated bj'- Lord Selborne in Lindsay Petroleum Co. 
 Y. Hurd (1874), L. E. 5 P. C. p. 239 {supra, p. 257). The Court 
 will consider the nature of the delay, and whether the defendant 
 has been prejudiced, and will balance the convenience and 
 inconvenience of granting relief. Under special circumstances 
 a delaj' of two 3'ears has not been a bar to relief: Foster v. 
 Mutual Reserve Co. (1904), 20 T. L. E. 715, H. L. And where 
 the claim to rescission is based on misrepresentation, it has 
 been said to be subject to the six years' limitation by analogy to 
 an action for deceit : Molloij v. Mutual Reserve Life Insurance Co. 
 (1906), 94 L. T. 756, C. A. But this is doubtful, and such cases 
 appear to be within the rule calling for special promptitude, 
 especially where the subject-matter of the contract is property 
 of a speculative nature {Scddon v. Xorth-Eastern Salt Co. (1904), 
 53 W. E. 232), or where third parties may be altering their 
 position on the faith of the contract standing. This latter 
 consideration is important in claims by a shareholder for 
 rescission of a contract to take shares. He must rescind as 
 soon as he learns the facts, or else he forfeits all claim to 
 relief: j^er James, L.J., in Sliarplcy v. Louth, etc., Rij. Co. 
 (1876), 2 C. B. p. 685, C. A. ; and a delay of a month or even 
 less may be fatal: Taite's Case (1867), 3 Eq. 795; Re Scottish 
 Petroleum Co. (1883), 23 C. B. p. 434, C. A. ; Shelton's Case 
 (1893), 68 L. T. 210. The delay counts from the time when the 
 shareholder can properly be fixed with notice of the facts 
 upon which his claim to rescission is based : Central Rij. Co. 
 of Venezuela v. Kisch (1867), L. E. 2 H. L. 99. An allotment of 
 shares improperly made under the Companies Act, 1900 (()3 & 
 64 Vict. c. 48), s. 4, can only be avoided within one month after 
 the statutory meeting : sect. 5. 
 
 (vii.) Claims against Directors. 
 
 In claims against directors for repayment of dividends Dividends 
 paid out of capital special promptitude is required, and the iJ".P^iope'"^y 
 lapse of a short time will bar the claim, especially if the 
 dividends have been paid on the footing of balance sheets, 
 drawn up in good faith and submitted to and approved by the 
 shareholders: Strint/er's Case (1869), 4 Ch. 475; Re Mammoth 
 Copperopolis of Utah (1880), 50 L. J. Ch. 11. But where the 
 shareholders have not approved the balance sheet and the
 
 272 
 
 CLAIMS IN EQUITY. 
 
 [CHAr. y, 
 
 company is wound up, the liquidator is allowed a reasonable 
 time for investigating the accounts before he makes the claim ; 
 and the time may be extended by a change of liquidators : lie 
 Alexandra Palace Co. (1882), 21 C. D. 149. 
 
 As to claims against directors in respect of misstatements in 
 a prospectus, and in respect of an irregular allotment of shares, 
 ritle supra, p. 241. 
 
 Claims 
 against 
 express 
 trustees. 
 
 Judicature 
 Act, 1873, 
 s. 25 (2). 
 
 Time alone 
 no bar. 
 
 ■Cestui que 
 trust barred 
 by laches. 
 
 Section III. — Express Trusts. 
 
 (1) AjJart from the Trustee Act, 1888, s. 8. 
 
 A claim by a cestui (pic trust against his trustee in respect of 
 a breach of trust is now, with certain exceptions, subject to the 
 bar of the Statute of Limitations by virtue of sect. 8 of the 
 Trustee Act, 1888 (infra, 280) ; but otherwise any statutory 
 limitations which might be applicable are excluded by the 
 provision of sect. 25 (2) of the Judicature Act, 1873, and s. 28 
 (2) of the Judicature (Ireland) Act, 1877, that : — 
 
 "No claim of a cestui que trust against his trustee for any 
 property held upon an express trust, or in respect of any breach 
 of such trust, shall be held to ])e barred by any Statute of 
 Limitations." 
 
 It has been said that this is but a statutory declaration of 
 a law which has been always recognized and administered in 
 Courts of Equity : Re Cross (1882), 20 C. D. 109, C. A., at p. 121, 
 2k'r Baggallay, L.J. Taken in the literal sense, however, it is 
 meaningless, for prior to 1888 there was no statutory limitation 
 applicable as between trustee and cestui que t)-ust : see Tie 
 Boicden (1890), 45 C. D. p. 451 ; and the effect of the enactment 
 seems to be merely to confirm indirectly the rule that time 
 alone cannot defeat a claim in equity in respect of a breach of 
 an express trust (Rocliefoucaukl v. Boustead, [1897] 1 Ch. 196, 
 C. A., at p. 212), though it may be a bar to other equitable 
 claims (supra, p. 201). A trust for sale in a will has been 
 enforced notwithstanding the lapse of fift}' years : Mutloiv v. 
 JJiggs (1874), 18 Eq. 246. 
 
 But otherwise a claim of a cestui que trust against his trustee 
 is subject to the general principles of equity as to delay. 
 "Although," said Lord Westbury, C, in M'Doitnel v. JJliiti' 
 (1865), 11 H. L. C. 570, p. 579, " it is perfectly true that no 
 time runs as between the cestui que trust or the beneficiary and
 
 CHAP, v.] EXPRESS TRUSTS. ^io 
 
 the trustee upon an express trust, so as to bar the remedy of 
 the beneficiary, yet with respect to claims made by him against 
 a trustee, the general rule of equity that encouragement is not 
 to be given to stale demands is equally applicable." The ques- 
 tion, it was said by the Court of Appeal in Re Cross {siq)m), in 
 a case where the trustee sets up delay as a defence, is "whether, 
 having regard to the nature of the breach of trust, and the 
 subsequent conduct of the parties interested in asserting any 
 claim in respect thereof, there has not been such an amount of 
 acquiescence and laches on the part of the parties interested as 
 to make it inequitable that relief should be given to them ; 
 for the doctrine, that where there is an express trust delay in 
 seeking relief in respect of a breach of it is not material, does 
 not apply to a case in which there has been acquiescence or 
 gross laches on the part of the cestui que trust.'" Cf. Carey v. 
 Cuthhert (1873), Ir. E. 7 Eq. 5^2 ; (1875), Ir. K. 9 Eq. 330. 
 "The books," said Eomilly, M.E., in Harcourt v. White 
 (1860), 28 Beav. 303, at p. 310, "abound with cases of gross 
 breaches of trust, not complained of for a considerable number 
 of years and not affected by the statute, where the Court has 
 not interfered to afford any redress, at the instance of one who, 
 knowing his right, has for many years forborne to enforce it." 
 
 Where during the life of a guardian, his ward, being un- Examples of 
 willing to interrupt friendly relations, forbore to make a claim if^ches. 
 in respect of his neglect in recovering a debt, this was held to 
 show acquiescence, and the claim was barred against the 
 guardian's executors : Sleeman v. Wilson (1871), 25 L. T. 408. 
 And as in other cases of laches, not only does acquiescence 
 bar the claim, but the same effect is attributed to circumstances 
 which have operated to the prejudice of the defendant, such as 
 the destruction of evidence: Briglitv. Legerton (1861), 2 D. F. 
 & J. 606 ; or the expenditure of money on the property : Bonnetj 
 V. Ridrjard (1784), 1 Cox, 145 ; or the fact that the trustee has 
 lost by the delay a right of indemnity which he could have 
 enforced against a co-trustee: Ru' Taylor (1900), 81 L. T. 812. 
 And see the cases cited above (p. 263) as to setting aside 
 purchases by trustees. 
 
 In general the rule excluding the statute applies only claims 
 between the cestui que trust and the trustee. In favour of gfrungera. 
 strangers, a bar to the trustee is a bar to the cestui que trust 
 also : Ifovendcn v. Aunesb'ij (1806), 2 Sch. & Lef. 607, at p. 629 ; 
 T.L.A. ^"
 
 274 
 
 CLAIMS IN EQUITY. 
 
 [CHAr. Y 
 
 Constructive 
 trusts. 
 
 Death of 
 trustee. 
 
 SjnckerncU v. Hotliam (1854) Kay, p. 675 ; .sin-ira, p. 7!). Nor 
 does it apply to claims in respect of constructive trusts : 
 BccKford v. Wade (1805), 17 Yes. 87. These are liable to be 
 barred by the statute, if applicable : Banner v. Bcrr'uhjc (1881), 
 18 C. D. 254 ; or, if no statute is applicable, they \Yill only be 
 entertained if made within a reasonable time : Tonnslicnd v. 
 Toicnshend (1783), 1 Bro. C. C. 550 {siqnxt, p. 2G8). 
 
 The death of the trustee does not take the case out of the 
 rule, and the statute does not run in favour of his estate against 
 the claim of the cestui que trust: Stoi-y y. Gajje (1856), 2 Jur. 
 N. S. 706; Ohee v. Bishop (1859), 1 D. F. & J. 137 ; Brittlehanh 
 V. Goodwin (1868), 5 Eq. 545 ; Woodhonse v. Woodhouse (1869), 
 8 Eq. 514; British Mutual Investment Co. v. Smart (1875), 10 
 Ch. 571, note; Be Bur;ie (1887), 57 L. T. 364; Be Blake (1889), 
 60 L. T. 663. The Irish decisions, Diuine v. Doran (1844), 13 
 Jr. Eq. E. 545, and Brereton v. Hutchinson (1854), 3 Ir. Ch. E. 361, 
 are overruled : Smith v. Cork & Bandon B)/. Co. (1870), Ir. E. 5 
 Eq. 65, p. 76, C. A. ; Carroll v. Hargrave (1871), Ir. E. 5 Eq. 
 548, C. A. ; see Brittlchank v. Goodu-in {supra). 
 
 Persons 
 treated as 
 express 
 trustees. 
 
 Persons treated as Express Trustees. 
 
 But though the exemption from the Statute of Limitations is 
 confined to express trusts as opposed to trusts which are merely 
 constructive, and the establishment of which may depend upon 
 the sifting of conflicting evidence, yet the term " express trust " 
 is not confined for this purpose to the ordinary case where there 
 is an instrument in writing creating the trust, and where ])roperty 
 is held by the trustee appointed under the instrument ; and the 
 following persons are treated as holding property upon an 
 express trust ; see Soar v. Ashwell, [1893] 2 Q. B. 390, C. A. :— 
 
 (i.) A trustee de son tort — that is, a person who assumes to 
 act in an express trust as if he were duly appointed a trustee : 
 Life Association of Scotland v. Siddall (1861), 3 D. F. & J. 58; cf. 
 Ex parte Gowers (1837), 3 Mont. & A. 172. As to what con- 
 stitutes a trustee de son tort, see Be Barney, [1892] 2 Ch, 265. 
 
 (ii.) A stranger to the trust who is privy to, and participates 
 in, a fraudulent breach of trust by the trustee : Barnes v. Addij 
 (1874), 9 Ch. 244. 
 
 (iii.) A stranger to the trust, who receives the trust moneys, 
 knowing them to be such, and deals with them in a manner
 
 CHAP, v.] EXPRESS TRUSTS. 2iO 
 
 inconsistent with tlie trust: Lee y. Sankcij (187 2), 15 Eq. 204. 
 A beneficiary who has been overpaid his share of the trust fund 
 is in the same position : Harris v, Harris (1861), 29 Beav. 110. 
 
 (iv.) One who stands in a fiduciary relation, and on the 
 footing of such relation obtains possession of property : Biir- 
 dich V. Garricl- (1870), 5 Ch. 233; M'Ardlc v. Gatir/hran, [1908] 
 1 I. E. 106 ; see Re Bell (1886), 34' C. D. 462 ; He Sharpe, [1892] 
 1 Ch. p. 160, C. A. 
 
 In the first three of these cases there is an express trust Existing 
 already afiecting the property, and a person other than the *"^^^' 
 trustee intervenes, or receives the property, so as to render 
 himself liable as a trustee under that trust. The distinction 
 between a person thus intervening, and one who is simply an 
 agent of the trustees, and who does not make himself liable for 
 their breach of trust, was pointed out by Lord Selborne, C, in 
 Barnes x.Addij (1874), 9 Ch. 244. The responsibihty of trustees 
 may no doubt "be extended in equity to others who are not 
 properly trustees, if they are found either making themselves 
 trustees de sdu tort, or actually participating in any fraudulent 
 conduct of the trustee to the injury of the cestui que trust. But, 
 on the other hand, strangers are not to be made constructive 
 trustees merely because they act as the agents of trustees in 
 transactions within their legal powers — transactions, perhaps, 
 of which a Court of Equity may disapprove — unless those agents 
 receive and become chargeable with some part of the trust 
 property, or unless they assist with knowledge in a dishonest or 
 fraudulent design upon the part of the trustees." Hence the 
 solicitor of the trustees, who confines himself to doing such 
 legal work as he is instructed to do, is not liable as an express 
 trustee — or, indeed, as a constructive trustee — for any resulting 
 breach of trust, unless it is part of a fraudulent design of which 
 he has knowledge : Mara v. Broirn, [1895] 2 Ch. 69 ; Brinsdeu 
 V. Williams (1894), 38 Solicitors' Journal, 608. 
 
 Where a solicitor or other agent of the trustees actually iicceiptof 
 receives the trust money and fails to account for it, he is liable by'go/^iJJf/ 
 as an express trustee and cannot plead the statute : Soar v. 
 Ashwell, [1893] 2 Q. B. 390, C. A.; cf. Ex parte Goivers (1837), 
 3 Mont. & A. 172. And a husband who receives property which, 
 apart from the Married "Women's Property Act, 1882, belongs 
 to his wife for her separate use, receives it as a trustee for her : 
 Wassell V. Lrcj^jatt, [1896] 1 Ch. 554 ; cf. James v. IMmes (1862),
 
 270 
 
 CLAIMS IN EQUITY. 
 
 [CHAF. V. 
 
 Loan of trust 
 money. 
 
 Covenant to 
 settle money. 
 
 Express trust 
 arising from 
 fiduciary 
 position. 
 
 81 L. J. Cb. 567, where a man received money for investment 
 from a woman with whom he lived as his wife, and was held to- 
 be a trustee for her. "Where money is standing to the account 
 of trustees at a bank, and the bankers, with notice of the trust, 
 transfer it at the direction of the tenant for life to his account 
 and so obtain payment of his debt to themselves, the Statute of 
 Limitations does not apply in a suit by the trustees to recover 
 the trust fund : Byidrjman v. Gill (1857), 24 Beav. 302. 
 
 A person to whom trust money is lent, if the lending is a 
 breach of trust and the borrower has notice of the trust, 
 receives it as trustee, and cannot plead the statute : see Ernest 
 v. Ci'oijsdill (1860), 2 D. F. & J. 175 ; Re Dixon (1900), 48 W. R. 
 665, C. A. And the result may be the same where the lending is 
 authorized by the trust, as where money is lent to the husband 
 under a power in a marriage settlement : Coxicdl v. Fmnldinsld 
 (1864), 11 L. T. 153; Jenner y. Akennan (1864), 10 Jur. N. S. 
 465 ; especially where he engages to repay the trustees as such : 
 Spichernell v. Hotham (1854), Kay, 669, pp. 675-677. But in 
 general a loan of money by trustees does not impose the' 
 character of trustee on the borrower. 
 
 A covenant to settle money on trust does not ordinarily 
 render the covenantor liable as a trustee : Spickerncll v. Jlotluun 
 (supra) ; Stone v. Stone (1869), 5 Ch. 74 ; yet such may under the- 
 circumstances be the effect: Biir)-on-cs\. Gore (1858), 6 H. L. C, 
 907, p. 941 ; and where the settlement recited that a sum of 
 money had been paid to the trustee — this not being the fact 
 — and the trustee covenanted to hold it upon trust and to 
 invest it with the approbation of the settlor, it was held that 
 the settlor had made himself a trustee : Stone v. Stone {supra). 
 
 The fourth class mentioned above includes persons in a 
 fiduciary position who receive property by virtue of that 
 position ; as a receiver or a trustee in bankruptcy : Seagram^ 
 V. Tack (1881), 18 C. D. 296 ; or the managers of a benevolent 
 fund: Edwards v. Warden (1876), 1 App. Cas. 281; or a 
 guardian of the property of an infant : Mathcw v. Brisc (1851), 
 14 Beav. 341. And it has been the rule in equity to exclude 
 from the benefit of the statute all cases where an obligation to 
 pay money has arisen out of the violation of confidence placed 
 in a person holding a fiduciary position: Teed v. Bere (1859), 
 5 Jur. N. S. 381 ; see Heath v. Henley (1663), 1 Ch. Cas. 20 ; 
 Sheldon V. Wehlman (1663), 1 Ch. Cas. 26.
 
 CHAr. V.l EXPRESS TRUSTS. 277 
 
 A trustee who is also a beneficiary, ^YllO purchases the trust 
 property from a mortgagee, purchases for the trust estate, ami 
 cannot make a title in himself by the statute : Dnfy v. Duff'ij, 
 [1906] 1 I. E. 205, C. A. But where an administrator had 
 already acquired a title to leaseholds of the intestate before he 
 took out administration, he did not become a trustee, notwith- 
 standing that he returned them among the assets : Pic M'Clnrc 
 and Garrett's Contract, [1899] 1 I. E. 225. And next of kin 
 who enter upon leaseholds {MacCormack v. Courtney, [1895] 2 
 I. E. 97), or an executor f/<' son tort {Doijle v. Fohnj, [1903] 2 I. E. 
 95), do not stand in a fiduciary relation to the administrator, 
 so as to be unable to set up the statute. Neither an executor 
 nor an executor de son' tort is an express trustee : Re Laeij, 
 [1899] 2 Ch. 149; Thnjle v. Foley supra; (supra), p. 169. A 
 contrary opinion was expressed in Molony v. Moloni/, [1894] 
 2 I. E. 1 ; cf. Scott V. Knox (1841), 4 Ir. Eq. E. 397. 
 
 An agent as such is not strictly in a fiduciary position for Agent to 
 the above purpose, and, if he receives money simply for trans- ^ana^-e'^"^ 
 mission to his principal, he is not an express trustee. If he property, 
 receives it to hold on deposit, he probably is an express trustee, 
 though in such a case the statute is also excluded on the 
 ground that the right of action does not accrue till demand 
 of the money : Fic Tidd, [1893] 8 Ch. J54. And he is in a 
 fiduciary position and ranks as express trustee, so far as 
 regards the statute, if his duty requires him to receive property 
 and manage it on behalf of his principal. In Burdick v. Buniichx. 
 Garrick (1870), 5 Ch. 233, a person, who was resident in the 
 United States, in 1858 gave a power of attorney to two persons 
 in England, one of whom was a solicitor, authorizing them to 
 sell his real and personal estate in England, and either to 
 transmit the proceeds to him or to invest them in real or 
 personal securities. Portions of the property were sold in 1858 
 and 1859, and a part of the proceeds was transmitted to the 
 principal ; but upon his death in 1859 the attorneys still 
 retained in their hands a considerable sum for which they 
 had not accounted. In 1867 the widow of the principal, who 
 was also his administratrix, demanded an account, and the 
 attorneys set up the statute. 
 
 To exclude the statute it might, perhaps, have been sufficient 
 to rely upon the power of attorney as creating an express trust, 
 but the Court of Appeal decided upon the broader ground, that 
 
 Oarrirh.
 
 278 
 
 CLAIMS IN EQUITY. 
 
 [CHAP. V. 
 
 Solicitors and 
 directors. 
 
 Summary 
 jurisdiction 
 over solicitor!: 
 
 the attorneys had received money -which it was their duty to 
 deal with on behalf of their principal. The case, said Lord 
 Hatherley, was that of an agent entrusted with funds, not for 
 the purpose of remitting them when received to the principal, 
 but for the purpose of employing them in a particular manner. 
 This could not be distinguished from an ordinary fiduciary 
 position which in equity creates a trust and excludes the defence 
 of the statute. " I do not hesitate to say," said Giffard, L.J., 
 " that where the duty of persons is to receive property and to 
 hold it for another, and to keep it until it is called for, they 
 cannot discharge themselves from that trust by appealing to the 
 lapse of time. They can only discharge themselves by handing 
 over that property to somebody entitled to it": see j^er Lord 
 Macnaghten, in Ljjell v. Kennedy (1889), 14 App. Cas. p. 4G3 ; 
 and as to this doctrine involving an extension of the proper 
 definition of an express trust, see per Kay, J., in Banner v. 
 Berridge (1881), 18 C. D. p. 264. 
 
 Hence a solicitor or other agent who receives property of his 
 client or principal, and who is under a duty to invest or otherwise 
 manage it, is in a fiduciary position and is, for the purposes of 
 the statute, treated as an express trustee : Gray v. Bateman 
 (1872), 21 W. Pi. 137. And if he has a general power of finding 
 a suitable investment, he is liable as a trustee for any loss that may 
 be caused by an improper selection : Power v. Power (1884), IS 
 L. R. L'. 281. But if a solicitor receives money for the purpose 
 of an investment selected or to be selected by the client, he is 
 liable as a trustee only until the money has been applied to the 
 selected investment: Doohfj v. Watson (1888), 39 C. D. 178. A 
 solicitor who receives his client's moneys simply for the purpose 
 of transmitting them to the client is not in a fiduciary position 
 in respect of such moneys and can plead the statute : Re 
 Hindmarsh (1860), 1 Dr. & Sm. 129 ; IJ^atson v. Woodman 
 (1875), 20 Eq. 721, at p. 731. A director of a company is an 
 agent with powers of management, and consequently is treated 
 as an express H;rustee : FliterofVs Case (1882), 21 C. D. 519, 
 C. A. ; but not an auditor : Leeds Estate Co. v. Shejylierd (1887), 
 36 C. D. 787 ; or secretary : Municipcd Land Co. v. Pollington 
 (1890), 63 L. T. 238. And as to agents, vide supra, p. 243. 
 
 The Court has a summary jurisdiction over solicitors, as 
 officers of the Court, in regard to moneys received by them on 
 behalf of clients, and the exercise of such jurisdiction is not
 
 CHAP. V.J EXPRESS TRUSTS. 279 
 
 necessarily excluded by the fact that the statute has run : Ex 
 parte Shcirpe (1837), 1 Jur. 405. But, in general, a solicitor can 
 rely upon the statute to bar such a claim, just as in the case of 
 a claim for negligence by him in his employment : lie Tristan 
 (1850), 1 L. M. & P. 7-1 ; and, after the statute has been 
 successfully pleaded in an action, the client cannot have 
 recourse to the summary jurisdiction of the Court : Sittinghournc, 
 etc., Eij. Co. V. Lau-son, W. N. (1886), p. 76. 
 
 It was at one time considered that where a creditor of a Claim against 
 married woman had a right to payment out of her separate estatT*^ 
 estate, this gave him the rights of a cestui que trust under the 
 trust creating the separate estate, so that the statute would not 
 run against his debt : Norton v. Turvill (1723), 2 P. Wms. 144; 
 Hodgson v. IVUliamson (1880), 15 C. D. 87. But this notion has 
 been exploded, and in such a case, if the creditor is a simple 
 contract creditor, he is liable to be barred in six years in equity, 
 in analogy to the legal bar : He Hastings (1887), 35 C. D. 94, 
 C. A. 
 
 Trusts for Creditors. 
 
 A trust in favour of creditors is not necessarily created upon Trust to 
 a conveyance of property by the debtor in trust to pay debts, ^^^ **®''*^' 
 even though the names of the creditors are mentioned in a 
 schedule to the deed. The arrangement is made by the debtor 
 for his own personal convenience and accommodation — for the 
 payment of his own debts in an order prescribed by himself — 
 and the assignee is a trustee for the debtor : Garrard v. Landerdale 
 (1831), 2 E. & M. 451 ; Sjjnnot v. Simpson (1854), 5 H. L. C. 121, 
 2)er Lord Cranworth, C, at p. 133 ; Jolins v. James (1878), 
 8 C. D. 744, C. A., 2)er James, L.J., at p. 749; Henriques v. 
 Bensusan (1872), 20 W. E. 350 ; He Sanders' Trusts (1878), 
 47 L. J. Ch. 667. 
 
 But the result is different where the execution of the con- Communica- 
 veyance is communicated to the creditors, and where there is ti^u to 
 evidence that they have been induced to place reliance upon it. • 
 The relation of trustee and cestui que trusts is then irrevocably 
 established between the assignee and the creditors : Acton v. 
 Woodgate (1833), 2 My. & K., 492 ; Brou-ne v. Cavendish (1844), 
 1 Jo. & Lat. p. 635 ; Harland v. Binks (1850), 15 Q. B. 713. 
 And a trust for creditors is established, too, when there are 
 circumstances beyond the mere conveyance which show that
 
 280 CLAIMS IX EQUITY. [CHAP. Y. 
 
 such was the mteution of the debtor ; as where, after the 
 payment of debts, the surplus is given to persons other than 
 the debtor : Godfrey v. Poole (1888), 13 App. Cas. 497 ; or where 
 the trust is not to come into operation till the death of the debtor: 
 Synnot v. Simjjson, sujyra, per Lord Cranworth, C, at p. 139 ; 
 He FitzgerakVs Settlement (1887), 37 C. D. 18, C. A.— though 
 possibly in this case the trusts are revocable during his life : see 
 Priestley v. Ellis, [1897] 1 Ch. 489 — or where the trusts are in 
 favour of a particular class of creditors whom the debtor had 
 sj)ecial reasons for securing : Ncw's Trustee v. Hunting, [1897] 
 2 Q. B. 19, C. A. (c) In these cases the object of the arrange- 
 ment is bounty to the creditors, and not a mere mandate by the 
 debtor to the assignee. 
 
 Similarlj', a trust declared for creditors on the dissolution of 
 a friendly society is enforceable by them : Pare v. Cleyg (18G1), 
 29 Beav. 589. In Trevor \. Hutchins (1897), 76 L. T. G36, C. A., 
 a trust of partnership assets created by an inspectorship deed 
 was held not to extend to the separate estate of each partner, 
 notwithstanding that the surplus of such estates was to go to 
 the partnership creditors. 
 
 (2) The Trustee Act, 1888, s. 8. 
 
 In general an express trustee can now, by virtue of the 
 Trustee Act, 1888 (51 k 52 Vict. c. 59), plead the statute to a 
 claim in respect of a breach of trust from which he has not 
 derived personal benefit : — 
 
 Trustee Act, "(1) 1°- ^^^J action or other proceeding against a trustee or 
 
 any person claiming through him, except where the claim is 
 founded upon any fraud or fraudulent breach of trust to which 
 the trustee was party or privy, or is to recover trust property, or 
 the proceeds thereof, still retained by the trvistee, or previously 
 received by the trustee and converted to his use, the following 
 provisions shall apply : — 
 
 " (a) All rights and privileges conferred by any statute of 
 limitations shall be enjoyed in the like manner and to the like 
 extent as they would have been enjoyed in such action or other 
 proceeding if the trustee or person claiming through hiin had not 
 been a trustee or person claiming through him : 
 
 " (h) If the action or other proceeding is brought to recover 
 
 ('■) Affirmed, .mh. nbm. Sharp v. J(('7.-f;o;/,[1809] A. C. 419, but the appeal ilid not 
 touch this point. 
 
 1888. 8. 8.
 
 CHAP. V.J EXPRESS TRUSTS. 281 
 
 money or other property, and is one to "which no existing statute 
 of limitations applies, the trustee or person claiming through 
 him shall be entitled to the benefit of and be at liberty to plead 
 the lapse of time as a bar to such action or other proceeding in 
 the like manner and to the like extent as if the claim had been 
 against him in an action of debt for money had and received, but 
 so, nevertheless, that the statute shall run against a married 
 woman entitled in possession for her separate use, whether with 
 or without restraint upon anticipation, but shall not begin to run 
 against any beneficiary unless and until the interest of such 
 beneficiary shall be an interest in possession. 
 
 " (2) No beneficiary, as against whom there would be a good 
 defence by virtue of this section, shall derive any greater or other 
 benefit from a judgment or order obtained by another beneficiary 
 than he could have obtained if he had Ijrought such an action or 
 other proceeding and this section had been pleaded. 
 
 "(3) This section shall apply only to actions or other pro- 
 ceedings commenced after the 1st day of January, 1890, and shall 
 not deprive any executor or administrator of any right of defence 
 to which he is entitled under any existing statute of limitations." 
 
 The remainder of the Act, except sect. 1, has been repealed 
 and re-enacted by the Trustee Act, 1893 (5G ^t 57 Yict. c. 53). 
 
 (i.) Excepted Casc^. 
 The following cases are excepted from this relaxation of the cases 
 
 1^^. excepted 
 
 ^"^^^ • from sect. M. 
 
 (a) Where the claim is founded on fraud. — The trustee 
 cannot plead the statute where the claim is founded upon any 
 fraud or fraudulent breach of trust to which he was party or 
 privy. The fraud must be actual fraud. " Fraud within the 
 meaning of the Act must amount to dishonesty": 2^<^^' Fitz- 
 gibbon, L.J., in Collinfis \. Wade, [1896] 1 L R 340, C. A. 
 Though in Jte Sale Hotel, etc., Ltd., 46 W. E. 314 (reversed in 
 C. A. on another point, ibid., 617), Wright, J., appears to have 
 considered that constructive fraud was sufficient. The fraud of 
 an agent will not be imputed to the trustee so as to make him 
 "party or privy" to it, unless the agent committed it withm 
 the scope of his authority : Thome v. Heard, [1895] A. C. 495. 
 As to fraud by a partner, see infra, p. 298. 
 
 {!)) WJicre the projoertj/ is still retained hi/ the trustee. — 
 Property is not retained by the trustee unless it remains in his
 
 282 CLAIMS IX EQUITY. [CHAP. V. 
 
 hands or under liis control. " The word 'still '," said Lindlej', 
 L.J., in Tlwrne v. Heard, [1894] 1 Ch. p. 606, "refers to the 
 commencement of the action, and the use of the word is 
 important. A trustee may be liable to make good trust monej^ 
 with interest, as if it were still in his hands, and yet he may 
 not in fact have it. But, in construing this statute, we have to 
 ascertain whether in fact the trust property sought to be 
 recovered is ' still retained ' by the trustee. The question ought 
 to be answered in the. affirmative if he, or any agent for him, 
 has it so that he can get it ; but in the negative if it has been 
 lost, whether by his negligence or otherwise " : see Callings v. 
 Wade, [1896] 1 I. R. 340; Re Tufnell (1902), 18 T. L. E. 705. 
 Where a trustee receives money and mixes it with his own, it 
 would seem that he still retains it, notwithstanding subsequent 
 payments : see WosscU v. Lcggatt, [1896] 1 Ch. 554. But there 
 must be something morally wrong in the retention. Where he 
 shares in a distribution of money as a beneficiary, this exception 
 does not apply : He Timmls, [1902] 1 Ch. 176. 
 
 (c) Where property has been misappropriated hij the trustee. 
 • — To bring a trustee within this exception, the property must 
 have been directly converted by him to his own use. An indirect 
 conversion — as where the trustee happens to be a partner in a 
 bank into which trust money improperly advanced is paid by 
 the borrower : lie Giirncy, [1893] 1 Ch. 590— is not enough. 
 And a trustee who expends money in the maintena.nce of an 
 infant beneficiary cannot be treated as converting it to his own 
 use, notwithstanding that he does not account for it : Be Page, 
 [1893] 1 Ch. 304. 
 
 (ii.) Persons iritliin the Statute. 
 
 Persons Save in the above cases a trustee can take the benefit of the 
 
 Wfifof the^ Statute of Limitations by virtue of the provisions of sect. 8. 
 section. By sect. 1 (3) of the Trustee Act, 1888, the expression " trustee " 
 
 is defined to include " a trustee whose trust arises by construc- 
 tion or imijlication of law as well as an express trustee." But 
 the definition is not material for the purpose of sect. 8, since 
 only express trustees were formerly e xcluded from the benefit of 
 the statute. All persons, however, who were formerly treated 
 "as express trustees, by reason of their being in a fiduciary 
 position and receiving property in that capacity, are entitled to
 
 CHAP, v.] EXPRESS TRUSTS. 283 
 
 the benefit of the section. Thus a dh-ector of a company, who 
 is treated as an express trustee of money received by him, and 
 who was formerlj^ unable to plead the statute (FUtcroft's Case, 
 1882, 21 Ch. D. 519, C. A.), may now do so : JiC Lands Allotment 
 Co., [1894] 1 Ch. 616, C. A.; WhHivham v. Watkin (1898), 78 
 L. T. 188 ; lie National Bank of Wales, [1899] 2 Ch. 699, C. A. ; 
 on appeal, Dore^ v. Cori/, [1901] A. C. 477, but not on this point. 
 Sect. 8 does not extend, however, to a trustee in bankruptc}', 
 or to a receiver or other person bound to account as an officer 
 of the Court: Be Cornish, [1896] 1 Q. B. 99, C. A. 
 
 The i^rovision of sect. 8 extends to "a trustee or any person Persons 
 claiming through him." The expression " claiming through " Jhroullf 
 refers, "not to beneficiaries, but to persons deriving property trustee, 
 from and becoming subject to the liabilities of the trustee ; that 
 is, generally speaking, his executors, administrators, or as- 
 signs " : Leahif v. De Molejjns, [1896] 1 I. R. 206, C. A. ; j;er 
 Porter, M.E., p. 218 ; 2^cr Walker, C, p. 242. Hence residuary 
 legatees, who have been paid by an executor and trustee while, 
 debts were outstanding, cannot set up the statute by virtue 
 of sect. 8 against the claim of a creditor to follow assets into 
 their hands : Leahy v. Dc Molci/ns. 
 
 (iii.) Operation of tlie Statute. 
 
 Sect. 8 contains two separate provisions regulating the Operation of 
 mode in which the statute is to be applied to claims against ^^^^' ^' 
 trustees. They may be shortly expressed as follows : (a) In 
 any action brought against a trustee, all rights and privileges 
 conferred by the statute are to be enjoyed in the like manner 
 as they would have been enjoyed in the action if the trustee had 
 not been a trustee ; and (h) if the action is brought to recover 
 money or other property, and is one to which no existing Statute 
 of Limitations applies, the trustee is to have the benefit of the 
 statute as if the action were for money had and received. It 
 has been objected to provision (a) that it is meaningless. " It is 
 obvious," said Fry, L.J., in He Bon-den (1890), 45 C. 1). 444, 
 " that if a person had not been a trustee he could not be sued 
 for a breach of trust ; and further, there is no right or privilege 
 that I am aware of conferred by any Statute of Limitations in 
 respect of a breach of trust." In Hon- v. Karl of Winterton, 
 [1896] 2 Ch. 626, C. A., it was suggested by the Court of Appeal
 
 284 CLAIMS IN EQUITY. [CHAr. A'. 
 
 that, even if the idea of trust were removed, yet there wouki be 
 a breach of duty in respect of which an action would He, and that 
 possibly the sub-section would assist a trustee against whom 
 an account was claimed. In liohinsoii v. Ilar/cin, [1896] 2 Ch. 
 415, Stirling, J., intimated that it might cover a claim for con- 
 tribution made by one trustee against another ; but apparently 
 the statute would run against such a claim apart from sect. 8. 
 Six years In general, however, claims against trustees in respect of 
 
 Ji^xist.^'^ ^ breaches of trust are claims to recover money or other property, 
 and are within clause (h), and it is upon this clause that the 
 operation of the section seems to depend. The short effect of 
 the section is that, save in the three excepted cases, a trustee 
 who has committed a breach of trust is entitled to the protection 
 of the several Statutes of Limitation as if actions for breaches 
 of trust were enumerated in them : j^ei- Lindle}', L.J., in How v. 
 Earl of Winterton (supra). Where no existing statute applies, 
 the trustee is entitled to plead the statute as if the claim had 
 been made against him in an action of debt for money had and 
 received. Hence, by virtue of the Limitation Act, 1023, it will 
 be barred at the end of six years from the accrual of the cause 
 of action ; that is, from the commission of the breach of trust : 
 per Lindley, L.J., in Thornr v. Heard, [1891] 1 Ch. p. 605. It 
 is the breach, and not the consequent loss, which furnishes 
 the cause of action: Re Somerset, [1894] 1 Ch. 231, C. A.; 
 though in He Sicain (1891), 3 Ch. 233, Eomer, J., used words 
 intimating that the six years were to be reckcfned from the time 
 when the loss occurred. 
 Clidms to The same limit of six years applies to a claim to an account 
 
 account. against a trustee. But this does not mean that the earlier 
 
 jCfCt!^^'<u-*'*^^ accounts cannot be required for any purpose whatever. "When 
 V7t/'.//'f'^^J ^77 a trustee is Hable to make good moneys which have been in his 
 hands, the action is maintainable in respect of the balance in 
 his hands six years ago and the moneys received since, and 
 what that balance was is a question with regard to which the 
 earlier accounts are material. " It is," said Lindley, L.J., in 
 How V. Earl of Winterton, [1896] 2 Ch. p. 640, "a mere question 
 of fact to be ascertained by evidence, and in particular by the 
 examination of the defendant on oath, and the production of his 
 earlier accounts, which, of course, are evidence against him. 
 But to take an account of his receipts and payments [bad; 
 beyond the six years] is quite another matter. That involves
 
 CHAr Y.J EXPRESS TRUSTS. 285 
 
 the disallowance of every payment which the defendant cannot 
 now prove he is entitled to have allowed as against the plaintiff. 
 Such an account is necessary to ascertain what the defendant 
 ought to have had [at the beginning of the six years], but it is 
 not necessary to ascertain what, in fact, he then had." In other 
 words, accounts previous to the six years are only material as 
 evidence of what the trustee actually had in hand at the date 
 from which the account now to be taken is to run. The form 
 of account directed in How v. Eaii of Wintcrton is given in a 
 note to He Davics, [1898] 2 Ch. p. 144, where a similar account 
 was ordered. 
 
 Clause (b) applies only to cases to which no existing Statute claims t.> 
 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 
 <lisability was abolished by sect. 4 of the Act of 1874 : — asadisabiiit.v. 
 
 " The time within which any such entry may be made, or any R. P. L. A., 
 such action or suit may be brought as aforesaid, shall not in any ^^'^t ^- ^• 
 case after the commencement of this Act be extended or enlarged Till^ow^^for 
 by reason of the absence beyond seas during all or any part of absence 
 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." 
 
 Since under the Married Women's Property Act, 1882, Disability of 
 •sect. 1 (2), a married woman is entitled to sue in her own name ^«^'^^"^"''<-- 
 in respect of her separate property, it would seem that the dis- 
 ability of coverture is removed in cases where a married woman 
 is entitled to land as her separate property. As to such 
 property she is discovert for the purposes of the statute : Weldon 
 V. Neal (1884), 51 L. T. 289 ; l.oice v. Fox (1885), 15 Q. B. D 
 067, C. A., both decided on the Limitation Act, 1G23 ; as to the 
 ■right to sue as a feme sole : see Weldon v. I)e Bathe (1884), 14 
 <l B. D. 339, C. A. ; Sijmonds v. Ifallrtf (1883), 24 C. D. 346, C. A. 
 
 T.L.A. u
 
 290 
 
 EXTENSION OF THE PERIOD OF LIMITATION. [CHAr. YI. 
 
 No allowance 
 for disability 
 ia redemptiou 
 action ; 
 
 ov mone}' 
 charged on 
 land: 
 
 or arrears 
 reut and 
 interest. 
 
 The extensions for disability do not apply to the case of a 
 mortgagor bringing an action to redeem ; the action is not one 
 to recover land within sect. 1 of the R. P. L. A., 1874 (Kinsinan 
 V. liouse (1881), 17 C. D. 104), but is the subject of separate 
 limitation by sect. 28 of the R. P. L. A., 1833 — now sect. 7 of 
 the Act of 1874 — and this section did not incorporate sect. IG : 
 Forster v. I'atterson (1881), 17 C. D. 132. And similarly 
 sect. 40 — now sect. 8 of the Act of 1874 — limiting the time for 
 the recovery of money charged on land (De Beauvoir v. Owen 
 (1850), 5 Ex. p. 182), and sect. 42, limiting arrears of rent and 
 interest {ConoUy v. Gorman, [1898] 1 I. R. 20, p. 35), and 
 sects. 30-33, limiting the time for enforcing a right of presenta- 
 tion, make no allowance for disability. But in an action for 
 arrears of rent due under an indenture of demise, disability is 
 allowed for by virtue of sect. 4 of the Civil Procedure Act, 183.^ 
 {infra, p. 291) : Nixon v. 7)«;%(18r)8), Ir. R. 2 C. L. 467, decided 
 on the corresponding provision of the Irish C. L. P. A., 1853. 
 
 (Simple con- 
 tract and 
 tort. 
 
 Specialty 
 debts. 
 
 (2) Simple Contract, Tort, and Specialtu Debts. 
 
 (i.) Disability of Plaintiff'. 
 
 In actions founded on simple contract and tort, when the 
 plaintiff is under disability at the time of the accrual of the 
 action, the statutory period of six years runs from the cessation 
 of the disability. The disabilities originally recognized were 
 infancy, coverture, unsoundness of mind, imprisonment, and 
 absence beyond seas. The rule is similar in the case of specialty 
 debts, the statutory period of twenty years running from the- 
 cessation of the disability. The disabilities originally recognized 
 were those just mentioned, with the exception of imprisonment. 
 In the former actions the disability of imprisonment, and in 
 both cases the disability of absence beyond seas has been 
 expressly, and that of coverture indirectly, abolished. Thus, in 
 all actions, the only disabilities now recognized, as regards, 
 plaintiffs, are infancy and unsoundness of mind. 
 
 Limitation 
 Act, 1623, s. ' 
 
 Simple Contract and Tort. 
 The statutory provisions are as follows : — 
 
 " Provided, nevertheless, that if a,ny person or persons that is 
 or shall be entitled to any such action of trespass, detinue, action
 
 CHAP. VI.] 
 
 DISABILITY. 
 
 •291 
 
 ibseaci 
 beyond sca.s 
 
 Scope of 
 sect. 7. 
 
 xur trover, replevin, actions of account, actions of debts, action of 
 
 trespass for assault, menace, battery, wounding or imj^risonment, 
 
 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 Infancy, 
 
 age of twenty-one yearn, /one covert, non compos mentis, imprisoned j'^^*^'" "''^» 
 
 or beyond the seas, that then such person or persons shall be at imprisonment, 
 
 liberty to bring the same actions, so as they take the same within 
 
 such times as are before limited after their coming to or being of full 
 
 age, discovert, of sane memory, at large and returned from beyond 
 
 the seas, as other persons having no such impediment should have 
 
 done." 
 
 Identical provision is made by 4 Anne, c. 16 (4 & 5 Anne, c. Seamen's 
 8, in Eev. Stat.), s. 18, with respect to actions for seamen's wages. 
 
 Sect. 7 of the Act of 1628 does not expressly mention " case," 
 though it specifies two actions of the class, namely, tivrer and 
 case for words. It is, however, construed so as to include all 
 actions limited by the enacting section — sect. 8 (supm, p. 19'2) 
 — and the allowance for disability extends to assumpsit, or its 
 modern equivalent, both for a liquidated and unliquidated sum : 
 Pl'Vjot V. Rush (1836), 4 A. & E. 912. In eftect, it extends 
 general!}' to actions founded on simple contract and tort. 
 
 A plaintiff is not debarred by his disability from bringing the Action during- 
 action during the continuance of the disability, and he may do 
 so even though the statutory period has elapsed : Piggutt v. 
 Rush (1836), 4 A. & E. 912. If he dies while under disability, so Death under 
 that the statute has never commenced to run, it commences ' '^'^'-'^ i*)- 
 to run against his executor from the death, or against his 
 administrator from the grant of letters of administration : 
 Fcrgussou v. Fgfe (1841), 8 CI. & F. 121, p. 140 : cf. Towuseud 
 V. Deacon (1849), 3 Ex. 706. 
 
 Spccialtif Debts. 
 
 " 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 i:)erson or persons shall be at liberty to bring the 
 same actions, so as they commence the same within such times 
 after their coming to or Jjeing of full age, discovert, of sound 
 memory, or returned from beyond the .seas, as other persons having 
 no such im])ediment .should, according to the provisions of this 
 Act, have done," 
 
 Civil Pro- 
 cedure Act, 
 1S3:5, s. 4. 
 
 Infancy, 
 coverture, 
 lunacy, 
 absence 
 beyond seas.
 
 292 
 
 EXTENSION OF THE PERIOD OF LIMITATION'. [CHAP. YI. 
 
 Scojie of tlie 
 section. 
 
 C. 1.. P. (Ir.) 
 Act, 1853, 
 
 Impiisonmeut 
 and absence 
 beyond seas. 
 
 ^lercautile 
 Law Amend- 
 ment Act, 
 185<j, s. 10. 
 
 Disability of 
 absence 
 beyond seas 
 abolished 
 under Limita- 
 tion Act. 
 1023, 4 Anne, 
 c. 16, Civ. 
 Proc. Act. 
 1833. and 
 
 The actions referred to are those mentioned in sect, 3 of the 
 same statute with respect to which the hmit is twenty years — 
 namely, debt for rent on a lease under seal : Nixoi v. Darlci/ 
 (1868), Ir. E. 2 C. L. 467; actions on a covenant or for a 
 specialty debt, and debt or .scire facias on a recognizance ; and 
 also the actions, omitted from the Act of 1623, with respect to 
 which the limit is six years — namely, debt on an award, actions 
 for copyhold fines, for an escape, and for money levied on a 
 fieri facias. 
 
 Irisli Statute. 
 
 Corresponding provision is made in Ireland by the Common 
 Law Procedure (Ireland) Act, 1853 :^ 
 
 " If any person that is or shall be entitled to any such action 
 is or shall be, at the time of any such cause of action accrued, 
 within the age of twenty-one years, a married woman, of unsound 
 mind, or beyond the seas, then such person shall be at liberty to 
 bring the same action so as 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." 
 
 The actions referred to in this statute are both specialty 
 actions and actions of simple contract and tort : supra, p. 198. 
 The disabilities recognized were infancy, coverture, unsoundness 
 of mind, and absence bej'ond seas. 
 
 Abolition of Certain Disabilities. 
 
 The disability of imprisonment where it existed, and also, 
 as regards plaintiffs, the disability of absence beyond seas was 
 abolished by the Mercantile Law Amendment Act, 1856 (19 & 
 20 Vict. c. 97), s. 10 :— 
 
 "No person or persons who shall be entitled to any action or 
 suit, with respect to which the period of limitation within which 
 the same shall be brought is fixed by the Act of the twenty-first 
 year of the reign of King James the First, chap. 16, sect. 3, or by 
 the Act of the fourth year of the reign of Queen Anne, chap. 16, 
 sect. 17, or by the Act of the fifty-third year of the reign of King 
 George the Third, chap. 127, sect. 5 (d), or by the Acts of the third 
 and fourth years of the reign of King William the Fourth, chaji. 
 
 (cZ) The Ecclesiastical Courts Act, 1813. Sect. 5 is repealed "except as to 
 tithes, offerings, and compositions, which liave not been commuted or are otherwise 
 still payable"; Statute Law Eevision Act, 1887 (.50 & 51 Yirt. c. 51»).
 
 CHAP. VI.] DISABILITY. 293 
 
 27, sects. 40, 41, and 42 (r), and chap. 42, sect. 3, or by the Act C. L. P. (Ir.) 
 
 of the sixteenth and seventeenth years of the reign of her present ■^•' ^^^^• 
 
 Majesty, chap. 113, sect. 20, shall be entitled to any time within JjJjpSmcnt 
 
 which to commence and sue such action or suit beyond the period abolished 
 
 so fixed for the same by the enactments aforesaid, by reason only ^}^^^\ Limita- 
 
 r. , ■ « , tion Act, 
 
 ot such person, or some one or more of such persons, being at the 162:^, and 4 
 
 time of such cause of action or suit accrued beyond the seas, or, in ^™6' ^- !''• 
 
 the cases in which by virtue of any of the aforesaid enactments 
 
 imprisonnaent 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." 
 
 This enactment was retrospective, and hence it aboHshed the ^"^ct. lo was 
 allowance on account of the absence of a plaintiff beyond seas in '■''*™'i'''^^'^^- 
 all cases, whether the cause of action accrued during absence 
 before the statute or no : Pardo v. Bingham (1869), 4 Ch. 
 735. As long as absence beyond seas was recognized as a 
 disability in a plaintiff, it applied as well to foreigners who 
 had never been in this country as to British subjects residing piSff. 
 abroad at the time of the accruing of the cause of action and 
 afterwards returning to England : Strithorst v. Graeme (1771), 
 2 W. Bl. 723 ; Lafond v. Ruddock (1853), 13 C. B. 813 ; though 
 a suit by a foreign creditor on a foreign judgment might be 
 dismissed for delay : licimers v. Dnirr (1857), 23 Beav. 145. 
 
 Since, under sect. 1 (2) of the :\rarried Women's Property Coverture, 
 Act, 1882, a married woman is capable of suing either in eon- 
 tract or in tort, or otherwise, in all respects as if she were a 
 feinc sole, she is discovert within the meaning of the above enact- 
 ments, and the disability of coverture is therefore in effect 
 abolished: U'eldon v. Xeal (1884), 51 L. T. 289; Lowe v. Fnx 
 (1885), 15 Q. B. D. G()7, C. A. 
 
 (ii.) Disahiliti/ of Defendant. 
 In the case of the absence beyond seas of a defendant at the Absence 
 time when the cause of action accrues, the plaintiff is assumed ^^'""'^ ^'^^' 
 to be unable to sue, and the statute, as well in respect of simple 
 contract and tort, as in respect of specialty debts, does not 
 commence to run till the defendant is in this country : — 
 
 "And ... if any person or persons against whom there is or i Anne, c. IC, 
 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, 
 
 (-) These sections wore includid in < rror. They raukc no allowance lor 
 dii-ability : tupra, p. 'I'M.
 
 294 
 
 EXTENSION OF THE TERIOD OF LIMITATION. [CHAr. VI. 
 
 Simple con- 
 tract and tort. 
 
 Civil Pro- 
 cedure Act, 
 1833, s. 4. 
 
 Specialty 
 ■debts. 
 
 C. L. P. (Ir.) 
 Act, 1853, 
 s. 22. 
 
 Specialty 
 debts and 
 simple con- 
 tract debts 
 and tort. 
 
 " Beyond 
 seas." 
 
 Civil Pro- 
 cedure Act, 
 1833, s. 7 : 
 Mercantile 
 Law Amend- 
 ment Act. 
 3856. s. V2. 
 
 Effect of 
 absence 
 beyond seas. 
 
 detinue, actions 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 without specialty, of debt 
 for arrearages of rent, or assault, menace, battery, wounding, 
 and imprisonment, or any of them, be or shall be at the time of 
 any such cause of suit or action given or accrued, fallen or come, 
 beyond the seas, that then such person or persons who is or shall 
 be entitled to any such suit or action shall be at liberty to bring 
 the said actions against such person or persons after their return 
 from beyond the seas, within such times as are respectively limited 
 for the bringing of the said actions before by this Act and by the 
 said other Act made in the one-and-twentieth year of the reign of 
 King James the First. 
 
 " 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 j^erson 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." 
 
 For Ireland, both as to simple contract debts and tort, and 
 specialty debts : — 
 
 " 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 against such 
 person, within such time as is before limited, after the return of 
 such person from beyond the seas." 
 
 With respect to the expression " beyond seas," it is provided 
 as follows : — 
 
 " No part of the United Kingdom of Great Britain and Ireland, 
 nor the '«lands of Man, Guernsey, Jersey, Alderney, and 8ark, 
 nor any islands adjacent to any of them, being part of the 
 dominions of His Majesty, shall be deemed to be beyond seas, 
 within the meaning of [4 Anne, c, 16, the Civil Procedure Act, 
 1833, or the Mercantile Law Amendment Act, 1856]. 
 
 A corresponding definition with reference to sect. 22 of the 
 C. L. P. (Ir.) A., 1853, is contained in s. 4 of that statute. 
 
 The effect of these enactments is that, as to all actions in 
 respect of which a limitation is imposed by the Limitation Act, 
 1628, the statute 4 Anne, c. IG, or the Civil Procedure Act, 1838, 
 or the corresponding Irish enactment, if the defendant is
 
 CHAP. VI.] DISABILITY. 295 
 
 abroad at the time when the cause of action accrues, the 
 operation of the statute is suspended, and the period does 
 not commence to run until he is in this country. But any 
 casual visit by the defendant to this country will put an end to 
 the disability, although the plaintiff is not aware of it : Grcgon/ 
 V. Huirill (1*826), 5 B. & C. 341. 
 
 And although the cause of action accrues in a foreign Action ^ 
 
 country where both parties are resident, and the action is abroalu^ /■ 
 barred under the law of that country before the defendant leaves /i^U j, 
 
 it, yet the plaintiff can sue in this country within six (or twenty) (^, j^ 
 
 years of the defendant's return: Williams v. Jones (1811), 13 - 
 
 East, 439. If, however, the effect of the Statute of Limitations / 9*- 
 
 •of the foreign country is to extinguish the debt, and not merely 
 to bar the remedy, the plaintiff cannot sue in this country after 
 ■such extinction, at any rate if both parties have resided in the 
 foreign country during the whole period of limitation : Hiiher v. 
 Steiner (1835),' 2 Bing. N. C. 202, at p. 211 ; Foote's Priv. Int. 
 Jur., 3rd ed. p. 520. 
 
 "Where the defendant is abroad, the plaintiff' is not debarred Action not 
 irom suing, and he may sue even though the statutory period absencV^ ' 
 has already elapsed if the defendant is still abroad. The effect ijeyoud seas, 
 of the statutes is simply to extend the time for suing till six (or 
 twenty) years after the defendant's return (Forbes v. Smith 
 (1855), 11 Ex. 161), and this result is not altered by the 
 facilities which now exist for serving a writ out of the juris- 
 diction under R. S. C. 1883, Ord. 11, r. 1 : Musurus Beij v. 
 Gadhan, [1894] 2 Q. B. 352, C. A. 
 
 Where a debtor resides and dies abroad, the statute does not Defendant 
 run in favour of his executor in this country till he takes out *^y^"« ^^'^^oad. 
 probate (Dotirjlas v. Forrest (1828), 4 Bing. 686), or inter- 
 meddles : su2)ra, p. 206. If the executor also is abroad, the 
 ■statute does not run till he comes to this country and proves 
 the will or intermeddles here : Flood v. Patterson (1861), 29 
 Bear. 295. 
 
 The case of absence beyond seas of one of several joint .joint doi)t(.r8. 
 debtors is provided for as follows : — 
 
 "Where such cause of action or suit, with respect to which i\reicantilc 
 the period of limitation is fixed by the enactments aforesaid or I''^w Amend' 
 any of them (/), lies against two or more joint debtors, the g"|" ' ' * 
 
 (/) I.e. the cntictmenls referred to in s. 10: xupni, j). liOi' ; The Limitatiou 
 Act, IG2:5 ; 4 Anno, e. lU ; Civil I'roccdurc Act, 18;i:i; C. L. V. (fr.) A., 1833.
 
 ^^6 EXTENSION OF THE PERIOD OF LIMITATION. [CHAI\ YI, 
 
 Period of person or persons who shall be entitled to the same shall not 
 
 rin/at to" " ^® entitled to any time within which to commence and sue any such 
 
 joint-debtors action and suit against any one or more of such joint debtors who' 
 
 V^ J shall not be beyond the seas at the time such cause of action or 
 
 Kinguom. . "^ 
 
 suit accrued, by reason only that some other one or more i)f such 
 
 joint debtors was or were at the time of such cause of action 
 
 accrued beyond the seas, and such person or persons so entitled 
 
 as aforesaid shall not be debarred 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 the seas, by 
 
 reason only that judgment was already recovered against any 
 
 one or more of such joint debtors who was not or were not beyonit 
 
 seas at the time aforesaid." 
 
 Statute The effect of this enactment is that where there are two or 
 
 asagahlir'"'' "^^^'^ J°^^^* clcbtors, whether in simple contract or by specialty, 
 joint debtors the statute riins forthwith in favour of such as are within the 
 abroad. ^^^s ; but it does not run in favour of such as are abroad until 
 
 their return, and an action will lie against them on their return^ 
 notwithstanding that judgment has been already recovered 
 against the other joint debtors. In general, recovery of judg- 
 ment against one of several persons jointly liable is a bar to an 
 action against the rest : King v. Hoare (1844), 13 M. & W. 494 ; 
 Kendall v. Hamilton (1879), 4 App. Cas. 504. Previously to this 
 enactment the fact of one joint dehtor being abroad saved the 
 statute as against all, until his return or death : Fannin v. 
 Anderson (1845), 7 Q. B. 811; Toicns v. Mead (1856), m 
 C. B. 123. 
 
 Section II. — Fkaud. 
 
 Effect of The effect of fraud in postponing the operation of the statute 
 
 depends, as to claims to land and rent-charges, on sect. 2(5 of 
 the R. P. L. A., 1833 ; and as to other claims, upon the 
 general rule of equity that time is no bar in cases of fraud 
 until the fraud is, or might with ordinary diligence have been,, 
 discovered. Since the statutory provision is founded on this 
 general rule, it will be convenient to consider the latter first.
 
 CHAP. YI.] FRAUD. 297 
 
 (1) Claims ill Kqnifif. 
 (a) ]]'}i('n' no Stafntr (ipplicahle. 
 In equity tirce is no bar in cases of fraud so long as the Time alone no 
 
 ojir in C0.SC9 oi 
 
 fraud is unknown to the plaintiff and he is in no way to blame fnuul. 
 for his want of knowledge. Under such circumstances neither 
 acquiescence nor laches can be imputed to him. Delay, it was 
 said in Aldcn v. Grcgorij (1764), 2 Eden, 280, will never purge a 
 fraud. And since acquiescence is a question of fact, it was, 
 under the former procedure, held that the bar of time in equity 
 could not be set up on demurrer: Earl of Deloraine y. Brown 
 (1792), 3 Bro. C. C. 633 ; cf. Foster v. Hodgson (1819), 19 Yes. 
 180. In Charter v. Trereli/an (1844), 11 CI. & F. 714, a con- 
 veyance fraudulently obtained in 1788 was set aside upon a 
 l)ill filed in 1827, the fraud not having been discovered till 1825. 
 In Roche v. O'Brien (1810), 1 Ball & B. 330, a deed was set aside 
 after thirty-four years where the party had remained in ignor- 
 ance of his rights, {(j) 
 
 But in cases of fraud, as in other cases, " it is the duty of the ^™° ™j 
 Court, when transactions of long standing are brought before it, might be 
 most anxiously to weigh all the circumstances of the case, and 
 to consider what evidence there may have been which from 
 lapse of time may have been lost " : Charter v. Trevcli/an (1844), 
 11 CI. & F. p. 740. (h) And consequently the date from which 
 laches is reckoned is not the actual discovery of the fraud, but 
 the time when, if he had used due diligence, the plaintiff would 
 have discovered it. " The fraud is considered to be discovered 
 at the time when such reasonable notice of what has happened 
 has Ijeen given to the person injured as to make it his duty, if 
 he intend to seek redress, to make inquiry and to ascertain the 
 circumstances of the case": Marquis of Clanricarde y. Hennintf , 
 
 (1861), 30 Beav. 175, ^^rz-Komilly, M.B., at p. 180. " When," said /fu^^AT^y ^ 
 Lord Westbury, C, in llidfe v. GrcQorij (1864), 4 D. J. & S.^^^^^^*^^ /^C^. 
 \). 579, "the remedy is given on the ground of fraud, it is-^^^« ^^i- 
 governed by this important principle, that the right of the party 
 defrauded is not affected by lapse of time, or, generally speaking, 
 by anything done or omitted to be done, so long as he remains, 
 
 {<}) See JohiiMon v. Uowlson (ISiVI), 13 Ir. Kq. 1{. lt;:J. ' 
 
 (h) See Whilleyv. lF/t«//e»/ (1821), :i Bligh, J.
 
 2t)S 
 
 EXTENSION OF THE PERIOD OF LIMITATION. [CHAP. VI. 
 
 Twenty years 
 tlio maximum 
 limit if t'raiul 
 discoverctl 
 witliin that 
 time. 
 
 Stated 
 •account. 
 
 Fraud of 
 partner. 
 
 without any fault of his own, in ignorance of the fraud that has 
 been committed." But he ceases to be thus blameless, and ceases, 
 therefore, to be entitled to the benefit of the rule, when he omits 
 inquiries which, under the circumstances, should be made. 
 Where one party is entitled to rely on the fidelity of another — 
 as in the case of partners — he is not bound to inquire as to the 
 conduct of the other until he has reason for suspicion : llatrUns 
 V. Wkkham (1858), 3 De G. & J. 30i ; Bctjcmaniix. Befjcmann, 
 [1895] 2 Ch. 474, C. A. 
 
 When once the fraud has been discovered it is the duty of the 
 plaintiff to claim relief promptly, and he is not entitled to any 
 definite period, such as twenty years, from the date when it was, 
 or should have been, discovered. On the other hand, this period 
 will be in practice a bar to the claim if, during its currency, he 
 has become aware of the facts: see Earl of iJelora'nic v. Broirn 
 (1792), 3 Bro. C. C. 633 ; Medlicott v. CrDonel (1809), 1 Ball & B. 
 15(). " Length of time of more than twenty years bars even in 
 case of fraud if the party to be barred has become in any 
 reasonable period cognizant of the facts. For, if there is the 
 full period of twenty years, it is immaterial that during much 
 of that time he had no notice of the fraud": per Hart, L.C., 
 Byrne v. Frcre (1828), 2 Moll. 157. But there might be circum- 
 stances of acquiescence and of prejudice to the defendant, 
 arising after the discovery of the fraud, which would bar the 
 remedy within the twenty years. 
 
 A stated account of long standing, as of twenty-three years 
 {Vernon v. Vawdrei/ (1740), 2 Atk. 119), or seventeen years {Allfrey 
 V. AUfrey (1849), 1 Mac. & G. 87), will be reopened on the 
 ground of fraud recently discovered ; but special directions will 
 be inserted for the protection of the accounting party {AUfrey v. 
 AUfrey); and, even in a case of gross fraud, an account ought 
 not to be decreed after a considerable length of time against 
 executors, legatees, and innocent persons claiming under the 
 fraudulent party: Hercy v. Dlnwoody (1793), 2 Yes. Jun. 87, 
 per Arden, M.E., at p. 92. 
 
 An innocent member of a firm is not liable for the fraud of a 
 partner committed on his own account, and not in the ordinary 
 course of business : Huylies v. Tichdcn (188(3), 55 L. J. Ch. 481. 
 But it is otherwise where the fraud has been committed in the 
 course of business. Thus where moneys duly paid to a firm for 
 investment have been fraudulently represented by one of the
 
 CHAP. YI.] FKAUD. 2D9 
 
 partners as invested, these representations bind the innocent 
 co-partner, and the statute does not run in his favour till the 
 fraud is discovered, even though the partnership has been in 
 the meantime dissolved : Blair v. Bromleij (1847), 2 Phil. 354. 
 And since this result depends on the principles of the law of 
 partnership, and not of trusts, the innocent partner cannot 
 claim the protection of sect. 8 of the Trustee Act, 1888 : Moore 
 v. Knight, [1891] 1 Ch. 547. In these cases the fraud and its 
 concealment, though committed hy one partner, are imputable 
 to the firm, and the cause of action does not accrue until the 
 fraud is discovered : Thome v. Heard, [1894] 1 Ch. 599, C. A., 
 2Mr Lindley, L.J. 
 
 (b) Where Statute applicahle hij Analog//. 
 
 The effect of fraud is the same in cases where the equitable statute runs 
 claim is subject to a statutory bar by way of analogy, except coveryof 
 that, since the bar depends not on laches, but upon the ^J"^"'^- 
 statute, the plaintiff is entitled to the statutory period from the 
 date of the discovery of the fraud. If, for example, an agent or 
 other person in a fiduciary position makes a secret profit out of 
 his position, the principal or cestui que trust can recover the 
 amount of the profit as an equitable debt ; but the statutory 
 period of six years will not begin to run until the facts as to the 
 profit have been discovered : Metropolitan Bank v. Heiron (1880), 
 5 Ex. D. 319, C. A. ; cf. Lister <(■ Co. v. Stiihhs (1890), 45 C. D. 
 1, C. A. In the case of a secret profit made by a director or 
 promoter of a company, notice to the board of directors will 
 not constitute notice to the company, so as to make the statute 
 run, unless the board is independent of the person whose con- 
 duct is impugned : Be Fitznnj, etc., Steel Co. (1884), 50 L. T. 144. 
 
 An equitable action based on misrepresentation is barred in 
 f3ix years l)y analogy to a common law action of deceit, but the 
 jDcriod does not commence to run until the plaintiff knew, or 
 with ordinary intelligence ought to have known, the facts which 
 establish the misrepresentation. But it then runs, although the 
 plaintiff does not draw the correct legal inferences. When 
 these facts include the correct construction of a document, 
 which is the subject of litigation, the period runs from the date 
 when the question of construction is first decided by a competent 
 Court, not from the coiilirmation of the decision by a Court of
 
 noo 
 
 EXTENSION OF THE PERIOD OF LBIITATION. [CHAP. YL 
 
 Underground 
 trespass. 
 
 Whcro no 
 action lies at 
 date of 
 diseoYory. 
 
 Appeal : MoUoi/ v. Mutual Reserve Life Insiirauee Co. (lOOO), *.>-^^ 
 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. Warrin<iton (1714), 4 Bro. 
 P. C. 1G8 ; South Sea Co. v. IVi/mondsell (1782), 3 P. Wms. 143 ; 
 Hocenden v. Anneslei/ (1806), 2 Sch. & Lef. p. 634. Since the 
 Judicature Acts such a claim, even though brought in the 
 King'-s Bench Division, is entitled to rank for this purpose as a 
 suit in equity, and hence it is subject to the equitable rule as to 
 the postponement of the operation of the statute in case of 
 fraud : Gibhs v. Guild (1882), 9 Q. B. D. 59, C. A. 
 
 It has been suggested that in such cases the active con- 
 cealment of the original cause of action furnishes a continuing 
 cause of action, and that only on this ground can the statute be 
 postponed : Barber v. Houston (1885), 18 L. E. Ir. 475, C. A. But 
 this was not the ground of the decision in Gi]>iis 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<i v. Milburn 
 <1886), 54 L. T. 723, C. A. 
 
 301
 
 302 EXTENSION OF THE PERIOD OF LIMITATION. [CHAP. YI. 
 
 (3) Land and llcnt-cliaiyes. 
 
 As to land and rent-charges a rule, corresponding to the rule 
 of equity, is expressly enacted by sect. 26 of the E. P. L. A., 
 1833 :— 
 
 „ , " In every case of a concealed fraud the right of any person to- 
 
 ISSsis.-itJ.' bring a suit in equity for the recovery of any land or rent of 
 
 Concealed which he, or any person through whom he claims, may have been 
 
 deprived by such fraud, shall be deemed to have first accrued at 
 
 and not before the time at which such fraud shall, or, with 
 
 reasonable diligence, might have been first known or discovered ; 
 
 provided that nothing in this clause contained shall enable any 
 
 owner of lands or rents to have a suit in equity for the recovery 
 
 of such lands or rents, or for setting aside any conveyance of such 
 
 lands or rents, on account of fraud, against any hond fide purchaser 
 
 for valuable consideration, who has not assisted in the commission 
 
 of such fraud, and who at the time that he made the purchase did 
 
 not know and had no reason to believe that any such fraud 
 
 ^ . had been committed." 
 
 Scope of The section only applies in eases of " concealed fraud," a term 
 
 sect. 26. which is more strictly construed than the fraud which is the 
 
 subject of the rule of equity, and in other respects its scope i& 
 
 limited by its terms. Thus to gain the benefit of the section, a 
 
 plaintiff must make out, " first, that there has been concealed 
 
 fraud; secondly, that he and his predecessors in title have been 
 
 deprived of the land by such fraud ; and, thirdly, that the fraud 
 
 has not been discovered, and could not with reasonable diligence 
 
 have been discovered," within twelve years of action brought : 
 
 ^ / y per Lindley, L.J., in Willis v. Earl Hoive, [1893] 2 Ch. p. 549, 
 
 U pU^U^ q^ ^ . j^axvrmci' v. Lord NorreijH (1890), 15 App. Cas. p. 214. 
 
 (i.) Concealed Fraud, 
 r, , , By concealed fraud, said Kindersley, Y.C., in Petre v. Petre 
 
 Concealed ♦' . , e l 
 
 fraud. (1852), 1 Drew. p. 397, is not meant " the case of a party 
 
 entering wrongfully into possession ; it means a case of designed 
 fraud, by which a party, knowing to whom the right belongs, 
 conceals the circumstances giving that right, and by means of 
 such concealment enables himself to enter and hold : see i>(?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. Willin<jton (1842), Long. & T. 
 456; Kirhcood v. Lloijd (1847), 11 Ir. Eq. E. 561, p. 576; 
 Re Earl of Kingston's Estate (1869), Ir. E. 3 Eq. 485. If 
 the surety takes the benefit of sect. 8, be must also take the 
 burden; pir Cotton, L.J., in Re Frisbij (loe. cit., p. 116). But 
 there must be an actual payment. The mere appointment of a 
 receiver of the estate of one judgment debtor, who receives 
 nothing on account of tbe debt, does not preserve the li!il)ility of 
 a joint debtor: Re Greene's Estate (1881;, 1;J Jj. K. ir. KM, C. A. 
 
 T.L.A. 2 B
 
 370 STOPPING THE STATUTE. [OHAP. VII. 
 
 (C) Payments u'hich Icecp alive the Remedies against the Free 
 Assets of a Deceased Specialty Debtor. 
 
 Administra- Land of a debtor, although not charged by him with the 
 
 debt in his hfetime or by will, may be made liable for its pay- 
 ment after his death under the statutes which make real estate 
 assets in equity for the payment of debts. Under these statutes, 
 however, the debt does not become payable out of land within 
 the meaning of sect. 8 of the E. P. L. A., 1874 : Roddam v. 
 Morley (1857), 1 De G. & J. 1 ; and the limitation on the 
 administration action, which must be brought in order to make 
 the assets available, is prima facie, in the case of a specialty 
 debt, imposed by sect. 3 of the Civil Procedure Act, 1833. In 
 this case the question of the effect of payment in preserving 
 the liability of persons interested in the land which the creditor 
 seeks to reach, depends on sect. 5 of that statute. If, however, 
 the debt, though not charged on the land in question, is charged 
 on other land of the testator, either because it was originally a 
 mortgage debt, or because it has been charged on such other 
 land by his will, then the relevant statute is sect. 8 of the 
 Pi. P. L. A., 1874. But, so far as these two statutes are con- 
 cerned, the distinction is not material, inasmuch as, under each, 
 the effect of payment in keeping the debt alive against assets 
 chargeable in an administration action is the same ; though it 
 is very material when it is a question of the application of 
 sect. 14 of the Mercantile Law Amendment Act, 1856, since this 
 restricts the effect of payment under sect, 5 of the Civil Pro- 
 cedure Act, 1833, but not of payment under sect. 8 of the 
 E. P. L. A., 1874 : Re Lacey, [1907] 1 Ch. 330, C. A, 
 
 Liability of The liability of heirs to make good specialty debts in v/hich 
 
 they were bound out of the lands descended existed under the 
 early law. The liability was extended to devisees by the Statute 
 of Fraudulent Devises (3 Will. & Mary, c. 14, s. 2, made per- 
 petual by 6 & 7 Will. 3, c. 14), and the procedure for recovering 
 specialty debts — that is, debts secured by instrument under seal 
 by which the heirs are bound — against the heir or devisee to the 
 extent of the land descended or devised was affirmed and 
 amended by the Debts Eecovery Act, 1830 (1 Will. 4, c, 47). 
 The liability of lands of a de cease d debtor to his simple contract 
 debts was first admitted in the case of traders (47 Geo. 3, 
 
 land as 
 assets.
 
 CHAP. VII.] PART PAYMENT. 371 
 
 c. 74), and by the Administi^tion of Estates Act, 1833 (3 & 4 
 Will. 4, e. 104), all lands of a deceased person were made assets 
 in equity for the payment of his debts, as well by specialty as 
 simple contract. The liability of the land ceases as soon as it has 
 been bond fide aliened: British Mutual Investment Co. y. Smart 
 (1875), 10 Ch. 567; Be Atkinson, [1908] 2 Ch. 307; but, subject 
 to this, the result of the statutes is that, for the purj^ose of a 
 specialty debt, all the devisees under the will, whether they are 
 devisees of a mortgaged or a free estate, stand on the same foot- 
 ing and are jointly liable to the specialty creditor : j^cr Farwell, 
 L.J., in Be Laceij, [1907] 1 Ch. p. 349. And it is now the 
 same, apparently, in respect of simple contract debts. 
 
 From the numerous cases already cited, in which a part Payment pre- 
 payment by one person liable has been held effectual to selves all 
 . remedies, 
 
 preserve the liability of others, it may be inferred that the same 
 
 result will follow when reliance is placed on a payment for the 
 
 purpose of maintaining the liability of assets in an administration 
 
 action ; and the fact that the liability of the various persons 
 
 who take the assets is joint affords an additional reason for 
 
 holding the payment by one to be effectual against all. This 
 
 view of the effect of part payment was taken by Lord Cran- 
 
 worth, C, in Boddani v. Morley (1857), 1 De G. & J. 1 : "I have Roddam v. 
 
 come to the conclusion that when a part payment or payment ^ °' ^^' 
 
 of interest has been made, which has the effect of preserving 
 
 any right of action, that right will be saved, not only against 
 
 the party making it, but also against all parties liable on the 
 
 specialty " ; that is, all the parties who could, by virtue of 
 
 the existence of the sj)ecialty debt, be reached for the purpose of 
 
 payment : Be Lacerj., [1907] 1 Ch. p. 354, C. A. Williams and 
 
 Crowder, JJ., who assisted Lord Cranworth, based the result 
 
 also on the analogy of the authorities — Fannin v. Anderson, 
 
 (1845), 7 Q. B. 811 and Toivns v. Mead (1855), 16 C. B. 123 
 
 (supra, p. 296) — which decided that an action suspended under 
 
 4 eK: 5 Anne, c. 16, s. 19, against a defendant who was abroad, 
 
 was suspended as to all the defendants ; but this argument is 
 
 not found in the later cases, and it is unnecessary to have 
 
 recourse to it. The question depends on the joint liability of 
 
 the parties, and upon the circumstance that payment by one 
 
 operates in relief of all. Such payment, therefore, removes the 
 
 bar of the statute, and leaves it open to the creditor to bring 
 
 his action as though the statute were out of the way. The
 
 372 STOPPING THE STATUTE. [CHAP. VII. 
 
 immediate point decided in lloddam v. Morley was that a 
 payment by a devisee for life kept the specialty debt alive 
 against the persons entitled in remainder; and this was 
 sufficiently covered by Lord Cranworth's observation that the 
 section was clearly intended to keep alive some right of action, 
 and no action could be maintained which was not in effect an 
 action against those who represented the whole inheritance. 
 But the reason of the decision went further and extended the 
 effect of payment to persons jointly liable. 
 Coope V. In Coope V. CressiveU (1866), 2 Ch. 112, on the other hand, 
 
 resbwe . Jjord Clielmsford, C, held that a specialty debt could not be kept 
 alive under sect. 5 of the Civ. Proc. Act, 1883, as against a 
 beneficial devisee of land by payments made by other persons 
 representing the testator's estate. Under the will of a testator, 
 trustees, who were also the executors, held the P. estate on 
 trust to sell and pay mortgage and other debts, and the D. 
 estate in trust for A. for life with remainders over. The trustees 
 paid interest on a specialty debt of the testator, and Lord 
 Chelmsford held that this had not kept the debt alive against A. 
 " Is there," he said, " anything unreasonable in supposing that 
 [the Legislature] intended what their words literally express ; 
 and that in each case of an action brought, you are to look to 
 the party whose liability is sought to be enforced, and who uses 
 the Statute of Limitations as a defence '? The whole frame of 
 the section seems to point in this direction." Hence, while he 
 did not dispute the correctness of Roddam v. Moiiey with respect 
 to the effect of payment by a limited owner as against the 
 remaindermen, he declined to apply that decision as between 
 the devisees of different estates and the personal representatives 
 of the debtor. The decision of Lord Westbury, C, in JJiekeusoii 
 V. Teasdcde (1862), 1 D. J. & S. 52, also, was founded on the 
 same principle; namely, that payment only affects the person 
 who makes it, or the land which he rejiresents. He repudiated 
 strongly the notion that payment by one of several devisees of 
 distinct estates could extend to all the devisees. 
 He Lacey. But in spite of this dissent, the view of the effect of payment 
 
 enunciated in lloddam v. Morley (supra) was adoj^ted in Pears v. 
 Laing (1871), 12 Eq. 41, and Leahy v. De Moleyns, [1896] 1 I. R. 
 206, C. A. ; and this view has been affirmed, and Coope v. Cresswell 
 and Dickenson v. Teasdale overruled, by Be Lacey, [1907] 1 Ch. 
 330, C. A. In this case a testator left a mortgaged estate to his
 
 CHA.P. VII.] PART PAYMENT. 373 
 
 son, and a free estate on trust for his wife for life, and then for 
 sale and division of the proceeds among his four daughters. The 
 son duly paid the interest on the mortgage, and, the mortgaged / 
 estate proving deficient, it was held that these payments kept 
 alive the liability of the free estate as assets in administration. 
 The case arose under sect. 8 of the R. P. L. A., 1874, while 
 Pioddam v. Morley and Cooiie v. Cresstoell arose on sect. 5 of the 
 Civil Procedure Act, 1833. But, as already intimated, the same 
 construction applies to both sections, and the Court of Appeal 
 decided in favour of lioddam v. Morley, supported as it was 
 by nearly all the other authorities. " I can find no distinction 
 between the two sections sufficient to make the reasoning of the 
 two common law judges and the Lord Chancellor in Roddam v. 
 Morley inapplicable to the present case": lie Lacey, per 
 Farwell, L.J. {loc. cit., p. 315). Hence it is now settled that 
 payment in respect of a specialty debt by any one of the persons 
 against whom it can be enforced in an administration action 
 keeps the debt alive as against all other such persons. This, 
 however, is subject, in cases depending on sect. 5 of the 
 Civil Procedure Act, 1833, to the provisions of sect. 14 of the 
 Mercantile Law Amendment Act, 1856. 
 
 Payment by a Co-debtor. 
 
 But while in general a payment is not confined in its effect Co-debtors. 
 to the person making it, a different rule has been introduced in 
 certain cases for co-debtors, by the Mercantile Law Amendment 
 Act, 1856, which provides as follows : — 
 
 " In reference to the provisions of the Acts, 21 Jac. 1, c. 16, Meroaiitile 
 s. 3, and 3 & 4 Will. 4, c. 42, s. 3, and 16 & 17 Vict. c. 113, s. 20, ^an.! Amond- 
 when there shall be two or more co-contractors or co-debtors, issc. «. 14. 
 whether bound and 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 
 benefits 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, co-debtors, executors or administrators." 
 
 Previously to the P. P. L. A, 1874, where money was charged Kxcluaion of 
 on land and also secured by covenant, an action on the covenant '^"^^ '("'^f' 
 was limited by the Civil Procedure Act, 1833, and hence a i«7i, a. k. '
 
 374 STOPPING THE STATUTE. [CHAP. VII. 
 
 joayment by one of several persons liable was subject to sect. 14 
 of the Mercantile Law Amendment Act, 185G, and did not keep 
 alive the action against the others. But in such cases the 
 action is now limited by sect. 8 of the B,. P. L. A., 1874, 
 and this section, as previously sect. 40 of the E. P. L. A., 
 1833, is not affected by sect. 14. Consequently, where money 
 is charged upon land, co-debtors are no longer entitled to the 
 benefit of the section, and a payment by one will keep the 
 action alive as against all : see cases cited supra, pp. 371-373. 
 
 But where the debt is not charged on land, the relevant 
 statute is the Civil Procedure Act, 1833, s. 5, and sect. 14 of the 
 Mercantile Law Amendment Act, 1856, applies, so as to restrict 
 the effect of payment to the person making it ; and this is so 
 where a specialty debtor dies possessed of land, and has not 
 charged the debt upon any of it. Several devisees of distinct 
 estates under the same will are co-debtors in respect of their 
 testator's specialties within the meaning of sect. 14, though 
 not tenant for life and remainderman of a single estate : lie 
 Lacey, [1907] 1 Ch. p. 349, per Farwell, L.J. Hence where 
 the specialty debt is not charged on land, payment by one 
 devisee does not bind the others ; where the debt is charged on 
 land, it does : supra, p. 373. 
 
 (2) Simple Contract Debts. 
 
 (i.) Implied Promise. 
 
 Implication The Limitation Act, 1623, may be excluded by part payment 
 
 of promise to of the debt or payment of interest, when the payment is made 
 I under such circumstances that there can be implied from it a 
 j promise to pay the balance of the debt, or the debt, as the case 
 may be. " It must be a payment of a portion of the debt, 
 accompanied by an acknowledgment from which a promise may 
 be inferred to pay the remainder " : per Parke, B., in Foster v. 
 Dawber (1851), 6 Ex. p. 853 ; Ex parte Topping (1365), 4 D. J. 
 & S. p. 564. " The bar of the statute is precluded by payment 
 of interest ; because the payment of interest is an acknowledg- 
 ment of the debt, and the law implies from the acknowledgment 
 of the debt a promise to pay it " : per Turner, V.C., in Fordham 
 V. Wallis (1852), 10 Hare, p. 225. It follows that payment into 
 court cannot exclude the statute : Long v. Greville (1824), 3 B. 
 & C. 10; Reid v. Dicko7is (1833), 5 B. & Ad. 499.
 
 CHAP. VII.] PART PAYMENT. 375 
 
 If the principal sum carries interest by agreement, the pay- Payment of 
 ment of interest is really part payment of the debt : Beah/ v. "^*'^''''^'***- 
 Greensladc (1831), 2 Cr. & J. 61 ; but the payment is equally 
 effectual, although interest is not expressly reserved. It is an 
 acknowledgment that the debt is due : Bamfidd v. Tupper (1851), 
 7 Ex. 27 ; see Purdon v. Purdon (1842), 10 M. & W. 562 ; Be 
 Butherford (1880), 14 C. D. 687, C. A. ; and it avoids the statute, 
 provided, in the case of payment on account of a promissory note, 
 that the note remains in the hands of the payee or his representa- 
 tives : Bealji v. Greenslade. Where the debt carries interest, a pay- 
 ment on account of principal has been held not to raise an implied 
 promise to pay the interest: Collycr v. in7/oc/.-(1827), 4 Bing. 313. 
 
 Promissory notes given under the Charitable Loan Societies Invalid note. 
 (Ireland) Act, 1843, are not renewable, but payments on the 
 footing of invalid renewals are nevertheless effectual to keep 
 alive the liability of the borrower on the primary consideration : 
 Lindsay v. Macguire, [1899] 2 I. E. 554. 
 
 Since the payment must be such as to imply a promise to Pavment 
 pay the remainder of the debt, it must be shown that it wa^ 
 made as part payment of a greater debt, and that such debt is 
 the one for which the action is brought : Tippetts v. Ileane (1834), 
 1 C. M. & Pt. 252. " Unless it amounts to an admission that 
 more is due, it cannot operate as an admission of any still 
 existing debt " : per Parke, B., in Tippetts v. Ilcane ; Waters v. 
 Tompkins (1835), 2 0. M. & E. p. 726 ; Waiifih v Cope (1840), 
 6 M. & W. 824 ; Goodwin v. Barton (1879), 41 L. T. 91 ; Be 
 BosweU, [1906] 2 Ch. 359 ; see per Maule, J., in Burr v. Boulton. 
 (1846), 2 C. B. p. 481. Similarly, payment of interest must be 
 referable to the debt claimed : Sims w.Brntton (1850), 5 Ex. 802; 
 Be Fountainc (1908), Times, Dec. 9. 
 
 Where there is only one debt between the parties, a payment Several debts, 
 of interest will be referred to that debt without further evidence : 
 Evans v. Davies (1836), 4 A. & E. 840. Where there is more 1 
 than one debt, the plaintiff must make out distinctly that the 
 payment on which he relies as excluding the statute is applic- 
 able to the debt sued for : Burldtt v. Blanshard (1848), 3 Ex. 
 89; rf. Holme v. Green (1816), 1 Stark. 488. To raise an 
 implied promise the appropriation must be made by the debtor; Appiopiiution 
 and oral admissions of the debtor, after payment, that it was ''^ '''■''^'"' 
 made on a particular account arc admissible: Bevan v. (Jcthiii;! 
 (1842), 3 Q. B.740 ; Baildon v. IVallon (1847), 1 Ex. 617, p. 633. 
 
 must be 
 attributabb' 
 to the debt 
 .sued on.
 
 376 STOPPING THE STATUTE. [CHAP. YII. 
 
 Appropriation If the debtor does not appropriate at the time of payment, 
 
 by creditor. ^^le right to appropriate devolves upon the creditor, and can be 
 
 exercised by him at any time (The Mecca, [1897] A. C. 286), 
 
 before proceedings questioning the debt : Smith v. Betfi/, [1903] 
 
 2 K. B. 317, C. A. ; and the creditor can apply any particular 
 
 payment to a statute-barred debt : Mills v. Foivkes (1839), 5 
 
 Bing. N. C. 455. But an appropriation by the creditor cannot 
 
 exclude the statute, since it implies no promise on the part of 
 
 the debtor: Nash v. Hodgson (1855), 6 D. M. & G. 474, 490. 
 
 No appropria- If there has been no appropriation by the debtor, and all 
 
 tion ma e. except One of the debts are statute-barred, the payment will 
 
 be attributed exclusively to that one : Nash v. Hodgson ,- and 
 
 where the defendant has throughout denied one debt, the paj"- 
 
 ment may be attributed to the other : Bnin v. Boulton (1846), 
 
 2 C. B. 476 ; Collinson v. Margesson (1858), 27 L. J. Ex. 305, 
 
 per Martin, B. Where no such ground of distinction exists, and 
 
 there is no evidence of appropriation by the debtor, it may be 
 
 that neither debt is taken out of the statute : Burn v. Boulton ; 
 
 though in general there would be evidence to go to the jury that 
 
 the payment was made on account of both of the debts : Walker 
 
 V. Butler (1856), 6 E. & B. 506 ; Be Boswcll, [1906] 2 Ch. 359. 
 
 Successive Where there are successive independent transactions between 
 
 account. ^^^^ parties, a payment on account of one particular transaction 
 
 will not exclude the statute as to the entire account : Wycombe 
 
 Union v. Eton Union (1857), 1 H. & N. 687. Thus where a number 
 
 of advances are made from time to time, and there are specific 
 
 repayments of the later advances, these do not keep alive the 
 
 general balance in respect of the earlier debt : Be Bainforth 
 
 (1879), 49 L. J. Ch. 5, C. A. And if at the time of payment 
 
 there are various sums due, some of which accrued more than 
 
 six years before the payment, these earlier items will not be 
 
 taken out of the statute, unless the payment can be shown to 
 
 have been made with reference to them: Mills v. Fowkes (1839), 
 
 5 Bing. N. C. 455 ; as where the items are connected so as to 
 
 make one account, and a payment is clearly made in respect of 
 
 the entire balance due : Walker v. Butler (1856), 6 E. & B. 506; 
 
 or where a payment made on a statement of accounts which 
 
 includes the earlier items, is larger than the balance due in 
 
 respect of items within six years : Be Friend, Friend v. Young, 
 
 [1897J 2 Ch. 421. 
 
 Circumstances (jj^g implication of a promise to pay arising out of part-
 
 CHAP. VII.] PART PAYMENT. 377 
 
 payment will be rebutted if tbe accompanying circumstances excludinf^ 
 show that tbe debtor did not intend to promise ; as wbere be P'^""^^^- 
 says tbat be owes tbe money, but will not pay tbe rest : Waiu- 
 man v. Kynman (1847), 1 Ex. 118; Colhicr v. Willock (1827), 
 4 Bing. 313 ; LinseU v. Bonsor (1835), 2 Bing. N. C. 241 ; or 
 wbere tbe payment is compulsory, as in tbe case of a payment 
 made under a judgment: Morgan v. lioivlands (1872), L. R. 
 7 Q. B. 493; or wbere it is made in tbe bankruptcy of tbe 
 debtor : Davies v. Edwards (1851), 7 Ex. 22. 
 
 Part-payment can revive a debt wbicb is barred at tbe date Revival of 
 of payment ; see, for example, Mahcr v. Mahcr (1867), L. E. 2 Ex. statu tp-han-ed 
 153; tbougb tbe contrary seems to have been intimated in 
 Nash V. Hodgson (1855), 6 D. M. & G. p. 482. And a debtor 
 on tbe eve of bankruptcy can properly make a payment witli a 
 view to reviving tbe claim of a creditor, so tbat he may share in 
 tbe estate with other creditors, provided the claim is bond fide 
 regarded as an existing liability. Such a payment is not a 
 fraudulent preference : lie Lane (1889), 23 Q. B. D. 74. 
 
 The payment need not be made in cash. Any facts which Payment in 
 would be sufficient to establish a plea of payment in an action moiiey not 
 to recover money will be sufficient : per Martin, B., in Mal>cr 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!<iI<:h and J-'ordhain v. IVallis 
 both depended upon the doctrine of implied promise : cf. Brings v. 
 Wilson (1854), 5 D. M. & G. 12. Their authority, consuriuently, 
 is in no way affected by the more extended operation given to 
 T.L.A. 2 C
 
 386 
 
 STOPPING THE STATUTE. 
 
 [CHAP. VII. 
 
 Payment by 
 tenant for 
 Ufe. 
 
 By co-devisee. 
 
 payment in lioddam v. Morleij and Re Laceij, [1907J 1 Ch. 330, 
 C. A., decisions which depend, not upon that doctrine, but upon 
 the statutory effect of jDayment. 
 
 It has been held that a payment by a devisee for life in 
 respect of a simple contract debt of the testator keeps alive 
 the liability of the devised estate as against the devisees in 
 remainder : Re HolUju/shead (1888), 37 C. D. 651. The tenant 
 for life represents, for the time being, the devised estate, and 
 is able to promise on behalf of the succeeding owners. 
 
 In Re Chant, [1905] 2 Ch. 225, it was held, further, that 
 payment by the devisee of one estate kept the simple contract 
 debt alive against the devisees of other estates of the debtor ; 
 but the decision assumed that there was no material difference 
 in this respect between the case of a simple contract debt and a 
 specialty debt. This assumption is not warranted. Although 
 the proceedings for making the real estate available are equit- 
 able, yet the Court is bound, as to simple contract debts, by the 
 Limitation Act, 1623, and by the legal doctrine as to the effect 
 of part payment, which has been developed under that Act. 
 And the promise implied from payment by a devisee, which 
 alone keeps the debt alive, does not affect any other estate 
 than that in which the person making the payment is 
 interested. Even if this were not so, yet a like restriction 
 would follow from sect. 14 of the Mercantile Law Amendment 
 Act, 1856. Several devisees of different estates of a debtor are 
 " co-contractors " within that section, so that a payment by one 
 is limited in its effect to himself : Re Laccij, [1900] 1 Ch. 330, 
 C. A.
 
 CHAPTER VIII. 
 
 PUBLIC AUTHORITIES. 
 
 Previously to 1898 there were a great number of statutes, both Acts done 
 public general statutes and local and personal statutes, which statutory 
 gave special privileges as regards litigation to persons who were po^'^'^rs. 
 sued for acts committed in the apparent exercise of statutory 
 powers or of certain public offices. These privileges included 
 the right to notice of action, and also a special period of limita- 
 tion, which was usually three or six months ; though for local 
 and personal statutes a uniform period of two years was intro- 
 duced by the Limitation of Actions and Costs Act, 1842 (5 & 6 
 Vict. c. 97). In the main these various provisions have been 
 repealed and replaced by the Public Authorities Protection Act, 
 1893 (56 & 57 Vict. c. 61), which, so far as is material for the 
 present purpose, provides as follows : — 
 
 "Where after the commencement of this Act [January 1, Public _ 
 
 1894] any action, prosecution, or other proceeding is commenced Protection 
 
 in the United Kingdom against any person for any act done in Act, 1893, 
 
 pursuance, or execution, or intended execution of any Act of ^" ' , 
 
 Parliament, or of any public duty or authority, or in respect of pgryons actin"' 
 
 any alleged neglect or default in the execution of any such Act, in execution 
 
 duty, or authority, the follow ing provisions shall ha\ e eil'ect : othtr puWic*^' 
 
 " {a) The action, prosecution, or proceeding shall not lie or duty. 
 be instituted unless it is commenced within six months next 
 after the act, neglect, or default complained of, or, in case of a 
 continuance of injury or damage, within six months next after 
 the ceasing thereof. 
 
 " This section shall not affect any proceedings by any depart- 
 ment of the Government against any local autlunity or ollicer of 
 a local authority.
 
 388 PUBLIC AUTHOEITIES. [CHAP, VIII. 
 
 S. 2. " There shall be repealed as to the United Kingdom so much of 
 
 I'^^ any public general Act as enacts that in any proceeding to which 
 
 this Act applies. 
 
 " (b) The proceeding is to be commenced within any particular 
 time ; 
 
 " and in particular there shall be so repealed the enactments 
 specified in the schedule to this Act to the extent in that schedule 
 mentioned." 
 
 The Act also dispenses, so far as relates to acts done in 
 pursuance of public general Acts, with the requirement of notice 
 of action, and in proceedings falling within its scope, it allows 
 solicitor and client costs to successful defendants. Here we are 
 only concerned with its special limitation upon actions and other 
 proceedings ; but in considering whether this limitation is 
 applicable, authorities upon the older statutes as to notice of 
 action, and upon the present statute as to solicitor and client 
 costs, are relevant and will be referred to. As to the statutes 
 repealed, vide infra, p. 401. 
 
 Section I. — Proceedings to which the P. A. P. A., 1893, 
 
 APPLIES. 
 
 lujunctiou. The former statutes did not apply to proceedings for an injunc- 
 
 tion, mainly upon the ground that in such proceedings notice of 
 action could not be reasonably required : Flower v. Low Leyton 
 Local Board (1877), 5 C. D. 347, C. A. ; Sellers v. Matloch Bath 
 Local Board (1885), 14 Q. B. D. 928 ; or to proceedings in which 
 damages were given in lieu of an injunction : Chapman & Co. v. 
 Auckland Union (1889), 23 Q. B. D. 294, C. A. But the Act of 
 1893 is subject to no such limitation, and it extends to actions in 
 the Chancery Division and elsewhere in which an injunction 
 is claimed: Harrop v. Ossett Corporation, [1898] 1 Ch. 525; 
 Holford V. Acton District Council, [1898] 2 Ch. 240 ; Fielding v. 
 Morley Corporation, [1899] 1 Ch. 1, C. A. ; [1900] A. C. 133 ; or a 
 declaration equivalent to an injunction : Grand Junction Water- 
 works Co. V. Hampton District Council (1899), 15 T. L. Pi. 412. 
 
 l^ort. Under the former law the protection was not available in 
 
 actions founded on contract, express or implied. It was re- 
 stricted to actions founded on tort : Davies v. Mayor of Swansea
 
 CHAP. VIII] PUBLIC AUTHORITIES PROTECTION ACT, 1893. 389 
 
 (1853), 8 Ex. 808 ; and among such actions were included those 
 which were in substance founded on tort, thougli the plaintiff 
 waived the tort and sued in assumpsit ; as where the action was 
 for the recovery of money improperly demanded in purported 
 exercise of statutory powers : Waterhousc v. Keen (1825), 4 
 
 B. & C. 200; Davis v. Cuding (1845), 8 Q. B. 286; Midland 
 Raihvay Co. v. Withington Local Board (1888), 11 Q. B. D. 788, 
 
 C. A. It extended to an action to recover a penalty for non- Penalty, 
 performance of a statutory duty, apparently because this was 
 
 akin to tort : Lewis cC- Son v. Swansea Corporation, W. N. 
 (1887), p. 234 ; but not to an action to recover a penalty 
 against a member of a local authority for acting when he was 
 disqualified : Charlesivorth v. Budyard (1835), 1 C. M. & E. 896. 
 
 The above rule excluding actions on contract has been Contract 
 adopted in the application of the Act of 1893. The Act does not *^^<^^"*^^*^- 
 apply to actions for the price of goods sold and delivered ; it 
 deals with cases of some wrong by a public authority : per Eomer, 
 L.J., in Milford Docks Co. v. Milford Haven District Council 
 (1901), 65 J. P. 483, C. A. Similarly an action for wrongful 
 dismissal is founded on breach of contract of service, and is not 
 within the statute : Clarke v. Lewisham District Council (1902), 
 19 T. L. Pi. 62 ; cf. National Telephone Co. v. Kingston-upon-Ilidl 
 Corporation (1903), 1 L. G. P. 777. And a public body is not 
 entitled to the benefit of the Act in an action by a builder to 
 recover the cost of extra work done under a contract, notwith- 
 standing that the contract was entered into in pursuance of 
 a statutory' duty: Sharpingtoti v. Fidhani Guardians, [1904J 
 2 Ch. 449. An action by a passenger on a municipal tramway 
 in respect of injuries received is founded on tort, and not on con- 
 tract, notwithstanding the issue of a ticket to the passenger, 
 though possibly it might be otherwise if the ticket was issued 
 on special conditions : Lyles v. Southend Corporation, [1905] 
 2 K. B. 1, C. A. In accordance with Waterhouse v. Keen (supra), 
 an action to recover improvement expenses unlawfully charged 
 by a local authority is in substance founded on tort, and is 
 within the Act : Cree v. St. Pancras Vestry, [1899] 1 Q. B. 
 693. 
 
 Under the former statutes the statutory protection did not < )ther actions 
 apply to an action to recover land : Foat v. Mayor of Margate 
 (1883), 11 Q. B. D. 299 ; or to a claim for compensation under 
 the Lands Clauses Act, 1845; Delancy v. Metropolitan Board, of
 
 390 
 
 PUBLIC AUTHORITIES. 
 
 [CHAP. VIII. 
 
 Crown 
 proceedings. 
 
 Works (1869), L. E. 3 C. P. 111. These authorities seem to 
 apply to the Act of 1893. And, as in Chaiiesworth v. liadi/ard 
 (sujim), the statutory protection does not extend to an action 
 against a person for acting in a corporate office when dis- 
 quahfied : Humphriss v. Worwood (1895), 64 L. J. Q. B. 437 ; 
 or to proceedings for a Quo u-arrauto : Rev v. Caytcr (1904), 68 
 J. P. 466. Since the Act apphes only to actions brought against 
 a person, it does not extend to an Admiralty action in rem : The 
 Burns, [1907] P. 137, C. A. 
 
 The Act extends to any " action, prosecution, or other pro- 
 ceeding," and, as regards persons and matters falling with it, 
 it applies to applications for a mandamus, prohibition, or certio- 
 rari, and to criminal proceedings ; and in such cases Recj. v. 
 Mayor of Sheffield (1871), L. E. 6 Q. B. 652 (infra, p. 410) is not 
 now applicable. 
 
 Persons and 
 
 corporations 
 
 performing 
 
 statutory 
 
 duties. 
 
 Protection 
 formerly 
 given to 
 contractors. 
 
 Section II. — Persons in whose Favour Protection is given. 
 
 The phrase "against any person," which occurs in sect. 1, 
 was frequently found in the earlier statutes, though some of 
 them were restricted to specified classes of persons, such as 
 magistrates (Justices Protection Act, 1848), or members of local 
 authorities, or their officers, or persons acting in their aid : Public 
 Health Act, 1875, s. 264. In the Act of 1893 it is used generally, 
 and any restriction on the scope of the statute must be sought 
 elsewhere. It includes, of course, corporations, and the statute 
 applies in favour both of local authorities and of their officers 
 acting under their direction: Greemcell v. Howell, [1900] 1 Q. B. 
 535, C. A. It also applies in favour of any person performing a 
 statutory duty, such as a doctor giving notification of infectious 
 disease : Salishuri/ v. Goidd (1904), 68 J. P. 158 ; and to a 
 volunteer officer in command of a regiment : Wilson v. Mackay 
 (1905), 5th Ser. Sess. Cas. vii. 168. 
 
 Under some of the earlier Acts the statutory protection was 
 available for contractors executing works for their own private 
 gain under contract with, and under the superintendence of, a 
 local authority. This was so under sect. 139 of the Public 
 Health Act, 1848 (Newton v. Ellis (1855), 5 E. & B. 115), but not 
 under the PubHc Health Act, 1875 : Stringer v. Barker, W. N. 
 (1879), p. 127. And while only officials were protected by sect. 
 108 of the Metropolitan Building Act, 1855 (Williams v. Golding
 
 CHAP. Vni.] PERSONS PROTECTED. 391 
 
 (1865), L. E. 1 C. P. 69), the Metropolitan Management Amend- 
 ment Act, 1862, s. 106, protected not only ofBcials, but any 
 person acting under their directions, whether a person execut- 
 ing works for his own benefit under the authority of an inspector : 
 Chamhcrs v. Beid (1866), 13 L. T. 703 ; or a contractor executing 
 works for the local authority : Poidsum v. Thirst (1867), L. E. 
 2 C. P. 449 ; though not a person performing sanitary works on 
 his own account in compliance with notice from the local 
 authority : Doust v. Slater (1869), 10 B. & S. 400. 
 
 The title of the Act of 1893 refers to persons " acting in the Companies 
 execution of statutory and other public duties," and this has privateVofit 
 been accepted as an indication that the statute is to be corre- f"*^ ^^0°- 
 
 tr&ctors now 
 
 spondingly restricted : see Fielding v. Morley Corporation, [1899] excluded. 
 1 Ch. 1, C. A. ; Fenton v. Thorley & Co., [1903] A. C. p. 447. It 
 has been held, accordingly, that it does not extend to companies 
 exercising statutory powers for purposes of profit, or to con- 
 tractors to public authorities. Thus it does not apply to railway 
 and other companies which exercise statutory powers for their 
 own private gain : The Ydun, [1899] P. 236, at p. 239, C. A. ; 
 Att.-Gen. V. Margate Pier Co., [1900] 1 Ch. 749 ; English v. 
 Metrop. Water Board (1907), 71 J. P. 313; or to a company 
 which carries on a statutory undertaking as lessee of a municipal 
 authority: Lyles v. Southend Corporation, [1905] 2 K. B. 1, C. A., 
 see p. 20. Nor does it apply to contractors doing, for their own 
 gain under contract with a local authority, work which the local 
 authority is by statute authorized to do : Kent Countij Council v. 
 Folkestone Corporation, [1905] 1 K. B. 620, C. A. ; Tilling (Ltd.) v. 
 Dirk, Kerr & Co., [1905] 1 K. B. 562. Nor does it protect trustees 
 of a statutory loan fund as regards the relation of trustee and 
 cestui que trust existing between them and the members : O'Brien 
 v. Mitchelstou-n Loan Fund, [1903] 1 I. R. 282, C. A. 
 
 Under some of the earlier statutes, such as the Larceny iMomber of 
 Act, 1861, members of the public were empowered to exercise exerdsing 
 statutory powers of a public nature, such as the apprehension Htntntory 
 of persons found committing specified offences. Such powers 
 are scarcely distinguishable from duties, and it is probable that 
 persons exercising them would be within the protection of the 
 present statute ; but the point has not been decided. If the 
 Act of 1893 does not apply, then recourse can still be had to 
 the earlier statutes.
 
 392 
 
 rUBLIC AUTHORITIES. 
 
 [CHAP. vni. 
 
 Act must be 
 in intended 
 pursuance of 
 statute. 
 
 Former test 
 ■was honafide 
 belief in 
 statutory 
 
 Section III. — The Matters in respect of which Protection 
 
 IS GIVEN. 
 
 (1) Acts done in pursuance of ci Statute, 
 
 The Act of 1893 relates to proceedings " for any act done in 
 pursuance, or execution, or intended execution of any Act of 
 Parliament, or of any public duty or authority, or in respect of 
 any alleged neglect or default in the execution of any such Act, 
 duty, or authority." The earlier Acts referred simply to acts 
 done in execution of an office (Justices Protection Act, 1848, 
 replacing 24 Geo. 2, c. 44) ; or in imrsuance of the Act (Game 
 Act, 1831 ; Larceny Act, 1861) ; or in pursuance of or under the 
 authoriti/ of the Act (Highway Act, 1835 ; Cruelty to Animals 
 Act, 1849). Later statutes referred to amjtliinci done or intended 
 to he done (Metropolitan Building Act, 1855 ; Metropolitan 
 Management Amendment Act, 1862), or to aiu/thiiifi done or 
 intended to he done, or omitted to he done under the provisions 
 of the Act (Public Health Act, 1875). 
 
 The fuller form on which the words of the P. A. P. A., 1893, 
 are based, was introduced into the Army Act, 1881. Li fact, 
 however, it seems to be no more efficacious than the original 
 short form "in pursuance of the Act," as that was interpreted 
 by the Courts. The statutory protection " is intended for the 
 benefit of persons who intend to act right, but by mistake act 
 wrong": Partonv. Williams (1820), 3 B. & A. 330; Hughes v. 
 Bnckiand (1846), 15 M. & W. 346, per Pollock, C.B. In other 
 words, a statute which protects persons acting in pursuance of 
 it necessarily refers to intended pursuance : see Oakley v. Ken- 
 sington Canal Co. (1833), 5 B. & Ad. 138, per Parke, J. ; Eeid v. 
 Coker (1853), 13 C. B. 850, per Maule, J. And after some 
 difference of opinion it was settled that the statutory protection 
 applied to omissions, although not expressly mentioned : Wilson 
 V. Mayor of Halifax (1868), L. R. 3 Ex. p. 119 ; Jolliffe v. Wallasey 
 Lac. Bd. (1873), L. R. 9 C. P. 62 ; Holland v. Northwich High. 
 Bd. (1876), 34 L. T. 137. Thus the form of words now adopted 
 appears to have no more effect than when protection was simply 
 given in respect of acts done "in pursuance of" a statute. 
 
 Under the former statutes various tests were suggested for 
 determining when a defendant was entitled to protection. At 
 first a hond fide belief that he was exercising statutory powers
 
 CHAP. Yin.] MATTERS WITHIN THE PROTECTION. 393 
 
 was considered to be sufficient: Graves v. Arnold (1812), 3 power on 
 Camp. 242; Theobald v. Crichmore (1818), 1 B. & A. 227. But grouTdt^' 
 this was found to allow of too much laxity. " It would," said 
 Williams, J., in Cann v. Clipperton (1839), 10 A. & E. 582, "be 
 wild work if a partj^ might give himself protection by merely 
 saying that he believed himself acting in pursuance of a statute. 
 The case to which [the statutes] refer must lie between a mere 
 foolish imagination and a perfect observance of the statute." An 
 obvious way of striking this mean was to require that the belief 
 in statutory authority must be not only bond fide, but based 
 upon reasonable ground : see Cook v. Leonard (1827), 6 B. & C. 
 351 ; and it was natural to conclude that the defendant must be 
 aware of the specific statutory provision under which he claimed 
 to have acted : Kine v. Evershed (1847), 10 Q. B. 143, j^er Lord 
 Denman, C.J., at p. 150; cf. Smith v. Rojjper (1847), 9 Q. B. 
 1005. But neither of these doctrines finally prevailed. It was 
 held that it was not necessary that the defendant should, at the 
 time of doing the act complained of, be cognizant of the existence 
 of the statute : Hardwick v. Moss (1861), 7 H. & N. 136 ; and 
 the reasonableness of his belief in statutory authority was 
 rejected as an independent test, though it might be an ingredient 
 in bona fides: Horn v. Thornborough (1849), 3 Ex, 846, per 
 Rolfe, B., at p. 850; Booth v. Clive (1851), 10 C. B. 827 ; Arnold 
 V. Hamel (1854), 9 Ex. 404, per Parke, B. 
 
 The necessary check upon the defendant's assumption of Test is belief 
 statutory power was finally found in the requirement that he gtatutorv^^'"^' 
 should have a bona fide belief in facts which, if they had existed, power, 
 would have afforded a justification under the statute. This 
 test, first formulated in Hermann v. Seneschal (1862), 13 C. B. 
 N. S. 392, was repeated in Roberts v. Orchard (1863), 2 H. & C. 
 769, and was adopted as a practical solution of the difficulty : 
 see Heath v. Brewer (1864), 15 C. B. N. S. 803 ; Chambers v. 
 Reid{lQm), 13 L. T. 703 ; Downing v. Cop^Z (1867), L. R. 2 C. P. 
 461. After an apparent reversion to the requirement of reason- 
 able belief in Leete v. Hart (1868), L. R. 3 C P. 322, the new 
 test was re-affirmed by Willes, J., in Chamberlain y. King (1871), 
 L. R. 6 C. P. 474 ; see also Gri^^th v. Taglor (1876), 2 C. P. D. 
 194, C. A. ; and it has not since been doubted. The question of 
 bona fides is not, as suggested in Arnold v. llmnrl (1854), 9 Ex. 
 404, a preliminary question for the judge, but a substantial 
 question of fact to l)e left to tlie jury: IIa,:cl(lini' v. Grows
 
 394 
 
 PUBLIC AUTHORITIES. 
 
 [CHAP. VIII. 
 
 Authority 
 conferred on a 
 class. 
 
 Act taust be 
 directly con- 
 nected with 
 statutory 
 duty. 
 
 (1842), 3 Q. B. 997 ; Cox v. Reid (1849), 13 Q. B. 558. Most 
 of these cases were decided on the Larceny Act, 1861, s. 113. 
 
 Where a statute confers authority to do an act upon a 
 specified class of persons, the defendant, to obtain statutory 
 protection, must purport to act in pursuance of the statute, 
 and also to act in the required character. It was formerly held 
 that he must actually fill such character : Hopkins v. Crowe 
 (1836), 4 A. & E. 774 ; Lidstey v. Borrow (1839), 9 A. & E. 654. 
 But the question in such cases is really the same as in the 
 others above referred to — Did the defendant bond fide believe in 
 the facts necessary to give him authority, one of these facts 
 being, that he filled the necessary character ; and hence it is 
 sufficient if he has a hand fide belief that he fills the character : 
 Huggins v. Wady (1846), 15 M. & W. 357 ; Hughes v. Biicldand 
 (1846), 15 M. & W. 346 ; Horn v. Thornborough (1849), 3 Ex. 
 846. And the same rule applies to a person who purports to 
 act as a member of a local authority. He is entitled to pro- 
 tection if he acted as a member under a bond fide belief that he 
 was so, although his election was invalid : Lea v. Facey (1887), 
 19 Q. B. D. 352, C. A. 
 
 To entitle the defendant to protection the act complained of 
 must be directly connected with a statutory authority or duty. 
 It was refused where a local authority had detained the goods of 
 the plaintiff in respect of a debt alleged to be due from him : 
 Affleck V. Mayor ofKeighley (1886), 2 T. L. E, 864, C. A. Where a 
 local authority under their statutory powers supplied water-carts 
 for watering the streets, and a person was injured through a 
 defect in a water-cart, they were entitled to protection : Edwards 
 V. Vestry of St. Mary, Islington (1889), 22 Q. B. D. 338, C. A. ; but, 
 under a statute entitling a contractor under a local authority 
 to protection, the contractor was not protected in respect of the 
 negligence of his servant in a matter merely collateral to the 
 performance of the statutory duty : Whatman v. Pearson (1868), 
 L. Pi. 3 C. P. 422. Where the act is directly connected with a 
 statutory duty, the defendant does not lose protection because 
 it is in fact unauthorized ; as where water is taken from a pro- 
 hibited source : Gaby v. Wilts and Berks Canal Co. (1815), 
 3 M. & S. 580 ; where a trespass is committed in raising a 
 party wall to comply with a Building Act : Pratt v. Hillman 
 (1825), 4 B. & C. 269 ; where a dock-master gives directions as 
 to berthing a ship in excess of his powers : Smith v. Shaw (1829),
 
 CHAP. VIII.] MATTERS WITHIN THE PROTECTION. 395 
 
 10 B. & C. 277 ; or where a local authority improperly cover in 
 a watercourse for the purpose of making a sewer : Wheatcroft v. 
 Matloch Local Board (1885), 52 L. T. 356. But there must be 
 statutory authority to which the act might be referred : Walsh 
 V. South tcark Borough Council (1908), 72 J. P. 71. 
 
 Eailway companies established under special Acts which Kail-ivay 
 give privileges as regards litigation, cannot claim these privi- ''""P^°^^^- 
 leges in regard to their liabiHty as carriers, whether of goods : 
 Palmer v. Grand Junction Railway Co. (1839), 4 M. & W. 749 ; 
 or of passengers : Garpue v. London and Brighton liaihraij Co. 
 (1844), 5 Q. B. 747. The special Act does not compel them 
 to be common carriers ; it only enables them to be so, so far 
 as they should think fit ; and when they have elected to become 
 so, they are liable in that character in the same way as other 
 common carriers, 
 
 (2) Acts done in the Execution of a Public Office. 
 
 Previously to the P. A. P. A., 1893, there was no general Belief ia 
 statutory provision protecting persons acting in the execution ['^"*? ^°"' 
 of a public office, but magistrates were protected by the Justices authority. 
 Protection Act, 1848. Usually public officers act under specific 
 statutory authority, but whether this is so or not, their claim 
 to protection under the P. A. P. A., 1893, does not differ from 
 that of a private person who acts in intended pursuance of a 
 statute. They are entitled to the statutory iirotection if they 
 have a bona fide belief in facts which would justify their conduct. 
 In special circumstances an officer may be entitled to act on 
 mere suspicion : Wedge v. Berkeley (1837), 6 A. & E. 6G3 ; Burns 
 V. Nowell (1880), 5 Q. B. D. 444. But a mere beHef by a magis- 
 trate that he has authority to make a particular order is not 
 enough ; he must believe in facts which would give him the 
 authority : see Agiiew v. Jobson (1877), 47 L. J. M. 0. 07. If a 
 magistrate in fact acts in execution of his office, the circumstance 
 that he is acting maliciously does not disentitle him to protection : 
 Kirby v. Simpson (1854), 10 Ex. 358. But a public officer is dis- 
 entitled by the improper receipt of money : L-ving v. Wilson 
 (1791), 4 T. R. 485 ; rf. Morgan v. Palmer (1824), 2 B. & C. 729. 
 
 A constable acting under a warrant was entitled to pro- CoiiHtnbi.-s. 
 tection notwithstanding an honest mistake, as where ho seized 
 the goods of the wrong person (I'arlou v. Willianni (1820), 
 3 B. & A. 330), or exceeded his authority : Theobald v. Crirhniore
 
 396 
 
 PUBLIC AUTHORITIES, 
 
 [CHAP. VIII. 
 
 Magistrates. 
 
 Highway 
 surveyors. 
 
 Slander in 
 course of 
 public duty. 
 
 Rule under 
 P. A. P. A.. 
 
 1893. 
 
 (1818), 1 B. & A. 227 ; Freegard v. Barnes (1852), 7 Ex. 827 ; 
 see Smith v. Wiltshire (1821), 5 Moo. 322. But when not acting 
 under a warrant, he had, like a private person, to prove a 
 bond fide belief in facts giving him authority: Graves v. Arnold 
 (1812), 3 Camp. 242 ; Cook v. Leonard (1827), 6 B. & C. 351 ; 
 Gosde7i X. Elphick (1849), 4 Ex. 445. 
 
 But though magistrates had to show a hond fide belief in 
 facts conferring authority, yet if the matter in which they 
 purported to act was in fact within their jurisdiction, they did 
 not forfeit protection by reason of excess or irregularity of 
 jurisdiction : Wellcr v. Tukc (1808), 9 East, 364 ; Prestidge v. 
 Woodman (1822), 1 B. & C. 12 ; Hazeldine v. Groves (1842), 
 3 Q. B. 997. And this rule was laid down with regard to public 
 officers generally by Bayley, J., in CooJc v. Leonard (uhi suj). at 
 p. 353). And similarly, if a public officer is carrying out a 
 purpose which is authorized by statute, and intends to act 
 under statutory authority, he is entitled to protection notwith- 
 standing that he does not act strictly in accordance with the 
 statute. On this the leading case is Selnies v. Judge (1871), 
 L. E. 6 Q. B. 724, where the defendants, who were surveyors of 
 highways, made a rate under a repealed statute instead of under 
 the Highways Act, 1835. " They intended," said Blackburn, J., 
 " to act according to the duties of their office as surveyors, 
 although they mistook the legal mode of carrying out their 
 intention " : see Greenway v. Hurd (1792), 4 T. E. 553; Boothhy 
 V. Morton (1822), 3 Br. & B. 239; Xorris v. Smith (1839), 10 
 A. & E. 188; Hardivick v. Moss (1861), 7 H. & N. 136; and 
 The Johannesburg, [1907] P. 65 ; Eliot v. Allen (1845), 1 C. B. 
 18, contra, is not now law. 
 
 Upon a narrow construction of the Justices Protection Act, 
 1848, it was decided by the Court of Appeal in Royal Aquarium 
 Society v. Parkinson, [1892] 1 Q. B. 431, that a slander spoken 
 in the course of public duty was not " anything done " within 
 the meaning of the Act. The contrary has been held in Ireland ; 
 Murray v. M'Swiney (1876), Ir. E. 9 C. L. 545. 
 
 The above principles are applicable to the general protection 
 which is given by the P. A. P. A., 1893, to persons acting in 
 the intended execution of any public duty or authority; and 
 whether the duty is cast upon an officer by the common law or 
 by statute, the test of his title to protection is in either case 
 the same. The mere bond fide belief that he has power to do
 
 CHAP. VIII.] MATTERS WITHIN THE PROTECTION. 397 
 
 the act complained of is not enough ; he must believe in 
 facts which would give him the power if they existed. One of 
 these facts is the validity of his own appointment, and hence 
 irregularity in the appointment of an officer, if unknown to 
 him, does not deprive him of protection : Lea v. Facey (1887), 
 19 Q. B. D. 352, C. A. And if the subject-matter is within 
 the officer's jurisdiction or power, he is not deprived of 
 protection because of some excess or irregularity in its exercise : 
 Cook V. Leonard (1827), 6 B. & C. p. 853; or because the 
 statutory provisions are not strictly followed : Selmes v. Judge 
 (1871), L. E. 6 Q. B. 724. 
 
 (3) Local Authorities. 
 
 Local authorities who are exercising their ordinary statutory Municipal 
 authority are entitled to the protection of the Act ; as in the "^*^ '^ '^ ^°°^' 
 assertion of a public right of way : Greenwell v. Howell, [1900] 
 1 Q. B. 535, C. A.; Ofjin v. Rochford District Council, [1906] 
 
 1 Ch. 342 ; or in the use of land for burial purposes : Toms 
 V. Clacton District Council (1898), 46 W. K. 629. And although 
 commercial companies acting for private gain are excluded 
 from the Act {supra, p. 391), yet it applies to undertakings 
 of a commercial nature carried on under statutory powers by 
 local authorities who are bound to apply any profits in relief 
 of the rates : see as to piers and harbours : The Yduu, [1899] 
 P. 230, C. A. ; as to electric lighting : Chamberlain and Hookham 
 (Ltd.) V. Bradford Corporation (1900), 83 L. T. 518 ; Jeremiah 
 Ambler & Sons (Ltd.) v. Bradford Corporation, [1902] 2 Ch. 
 585, C. A. ; as to tramways : Parker v. London County Council, 
 [1904] 2 K. B. 501; Lyles v. Southend Corporation, [1905] 
 
 2 K. B. 1, C. A. Previously to 1893 this was not so : Onyley 
 V. Chatham Local Board (1887), 4 T. L. E. 6, C. A. It has 
 been pointed out that railway companies are not protected to the 
 same extent : supra, p. 395. In Lyles v. Southend Corporation 
 the Court of Appeal distinguished the railway cases on the 
 ground that a municipal corporation, having obtained statutory 
 powers to carry on a tramway, is also under a duty to carry 
 it on. The protection extends to a public body, such as the 
 Tyne Improvement Commission, who perform a duty in the 
 interest of the public, and not for any person's private gain : 
 The Juiiannesbury, [1907J P. 65.
 
 398 
 
 PUBLIC AUTHOKITIES. 
 
 [CHAP. 'VIII. 
 
 Six mouths 
 from the act, 
 etc., com- 
 plained of, or 
 from cessation 
 of oontinuing 
 injury. 
 
 " Act com- 
 plained of." 
 
 Accrual of 
 cause of 
 action. 
 
 Section IV. — The Period of Limitation under the P. A. P. A., 1893. 
 
 An action or other proceeding which falls within the statute 
 must be commenced "within six months next after the act, 
 neglect, or default complained of, or, in case of a continuing 
 injury or damage, within six months after the ceasing thereof." 
 Under the previous statutes various forms of limitation were 
 used : " after the fact committed " (Highway Act, 1835 ; Larceny 
 Act, 1861 ; and other statutes) ; " after the act complained of 
 shall have been committed " (Justices Protection Act, 1848) ; 
 " after the accruing of the cause of action " (Metropolitan Build- 
 ing Act, 1855 ; Public Health Act, 1875). In local statutes 
 authorizing the taking of land and construction of works, it was 
 usual to provide for the case of continuing damage, and then the 
 six months was reckoned after the damage had ceased : see 
 Fmscr v. Swansea Canal Co. (1834), 1 A. & E. 354, on a canal 
 Act of 1794 ; Carpue v. London and Brighton Railivaij Co. (1844), 
 5 Q. B, 747, on a railway Act of 1837. The full form of words, 
 providing for continuance of injury, was introduced into the 
 Army Act, 1881, and subsequently into the P. A. P. A., 1893. 
 
 Time runs from " the act complained of." The ascertain- 
 ment of this date is usually easy. In an action for trespass by 
 pulling down fences in assertion of an alleged public right of 
 way, it is the pulling down of the fences : Offin v. Rochford 
 District Council, [1906] 1 Ch. 342. In cases of wrongful 
 distress and sale, time runs as against an owner not in 
 possession — as where the distress is on barges in the pos- 
 session of a lessee (Fraser v. Swansea Canal Co. (1834), 1 
 A. k E. 354)— from the sale and not from the distress; and 
 the same rule has been applied as regards an owner in posses- 
 sion, since the seizure is only conditional until sale : Collins v. 
 Rose (1839), 5 M. & W. 194. But in such a case the distress 
 would seem to furnish a sufficient cause of action. In an action 
 against a magistrate for damages for distress for a fine illegally 
 imposed, the six months runs from the distress, and not from 
 the conviction : Polleij v. Fordhani, [1904] 2 K. B. 345. But in 
 favour of a county court bailiff, the statute runs from his default, 
 not from the resulting injury : Tiirlcji v. Daw (1906), 94 L. T. 216. 
 When the cause of action depends on the happening of 
 special damage, it accrues when the damage happens, and not 
 at the time of the act which causes it : Backhouse v. Bonomi
 
 CHAP. VIII.] PEEIOD OF LIMITATION. 399 
 
 (1858), 9 H. L. C. 503 (supra, p. 205) ; and under the former 
 statutes " the fact committed " was referred to the same date — 
 that is, it was equivalent to " the accrual of the cause of 
 action " : Roberts v. Read (1812), 16 East, 215, on the Highway 
 Act (13 Geo. 3, c. 78), s. 81 ; Gillou v. Boddington (1824), Ky. & 
 M. 161, on the London Dock Act (39 & 40 Geo. 3, c. 47), s. 151 ; 
 see Whitehouse v. FeUoires (1861), 10 C. B. N. S. 765. But in 
 case of trespass the cause of action accrues when the trespass 
 is committed. Where a surveyor of highways, acting under the 
 former of the statutes just referred to, wrongfully encroached 
 upon private property by building a wall, time ran from the 
 commencement of the building, since the separation of the land, 
 and consequently the encroachment, was then complete : 
 Wordsworth v. Harleij (1830), 1 B. & Ad. 391. Cf. Coggins v. 
 Bennett (1877), 2 C. P. D. 568. 
 
 In the above cases the damage, whether it follows the act Coutiuuing 
 which causes it immediately or after an interval, is at once ^''J'^^y- 
 complete, and, when this is so, there is no continuance of damage 
 or injury within the meaning of the statute. The effect of the 
 damage may continue, but this does not extend the time of 
 limitation. Thus where excavation causes the walls of a house 
 to crack, the continuance of the cracks does not constitute for 
 this purpose a continuance of damage : Lloyd v. Wigneij (1830), 
 6 Bing. 489. Similarly in the case of bodily injury, the injury 
 is complete when the accident happens, and is not a continuing 
 injury because the suffering continues : Carey v. Mayor of 
 Bermondsey (1903), 67 J. P. 111. " The words ' continuance of 
 injury or damage ' do not mean or refer to a damage inflicted 
 once and for all which continues unrepaired, but to a new 
 damage recurring day by day in respect of an act done, it may 
 be once and for all at some prior time, or repeated, it may be, 
 from day to day" : 2><'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 </'"' '"»» in- 
 committed against such Act penal, and not after two years; and all 
 actions, suits, bills or informations, which after the said twenty days 
 shall Ije had, brought, sued or coininenced, for any forfeiture upon any 
 penal statute, made or to be made, except the Statute of Tillage, tlu; [p. 210.]
 
 420 
 
 ArrENDix. 
 
 Except where 
 ii shorter time 
 is expressly 
 limited. 
 
 benefit and suit whereof is or shall be by the said statute limited to 
 the Queen, her heirs or successors, and to any other which shall 
 prosecute in that behalf, shall be had, brought, sued or commenced, by 
 any person that may lawfully pursue for the same as aforesaid, within 
 one year next after the offence committed or to be committed against 
 the said statute ; and in default of such pursuit, then the same shall be 
 had, sued, exhibited or brought, for the Queen's Majesty, her heirs or 
 successors, at any time within two years after that year ended ; and if 
 any action, suit, bill, indictment or information for any offence against 
 any j^enal statute, made or to be made, except the Statute of Tillage, 
 shall be brought after the time in that behalf before limited, then the 
 same shall be void and of none effect, any Act or statute made to the 
 contrary notwithstanding. 
 
 Provided always that where any action, information, indictment or 
 suit is or shall be limited, by any statute penal, to be had, sued, 
 commenced or brought within shorter time than is afore rehearsed, 
 that in every such case the action, information, indictment or other 
 suit shall be brought within the time limited by such statute. 
 
 [So much of this Act as relates to the time limited for exhihiting an 
 information for a forfeiture upon any penal statute is repealed hy the 
 Summary Jurisdiction Act, 1848 (11 tt 12 Vict. c. 43), s. 36.] 
 
 On informa- 
 tions for 
 intrusions on 
 Crown lands, 
 whereof the 
 King- hath 
 been cut of 
 possession for 
 twenty years, 
 the defendant 
 may plead the 
 general issue, 
 and retain 
 jiossession till 
 title found for 
 the Kinjr. 
 
 [p. H2.] 
 
 (21 Jac. 1, c. 14). 
 
 An Act to admit the Subject to plead the general issue in Informations of 
 
 Intrusion. 
 
 Where the King out of his prerogative royal may iuforce the 
 subject in informations of intrusion brought against him to a special 
 pleading of his title, the King's most excellent Majesty, out of his 
 gracious disposition towards his loving subjects, and at their humble 
 suit being willing to remit a part of his ancient and regal j^ower, is 
 well pleased that it be enacted, and be it enacted, etc. : — 
 
 1. Whensoever the King, his heirs or successors, and such from 
 or under whom the King claimeth, and all others claiming under 
 the same title under which the King claimeth, hath been or shall be 
 out of possession by the space of twenty years, or hath not or shall 
 not have taken the profits of any lands, tenements or hereditaments 
 within the space of twenty years before any information of intrusion 
 brought or to be brought to recover the same, in every such case the 
 defendant or defendants may plead the general issue, if he or they so 
 think fit, and shall not be pressed to plead specially, and in such cases 
 the defendant or defendants shall retain the possession he or they had 
 at the time of such information exhibited, until the title be tried, 
 found, or adjudged for the King.
 
 APPENDIX. 
 
 421 
 
 2. Where any information of intrusion may fitly and aptly be Scire facias 
 
 brought on the Kinsr's behalf, no scire facias shall be broutrht where- shall not be 
 
 unto the subject shall be forced to a special pleading, and be deprived instead of 
 
 of the grace intended by this Act. information. 
 
 (15 Car. 1, c. 1.) 
 Tlie Statnie for Ireland is in the same ferms. 
 
 THE LIMITATION ACT, 1623 
 
 (21 Jac. 1, c. 16, ss. 3, 4, and 7). 
 
 An Act for Limitation of Actions and for avoiding of Suits in Law. 
 
 3. All actions of trespass quare clansum f regit, all actions of 
 trespass, detinue, action sur trover, and replevin for taking away of 
 goods and cattle, all actions of account and upon the case, other than 
 such accounts as concern the trade of merchandise between merchant 
 and merchant, their factors or servants, all actions of 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 herein- 
 after expressed, and not after : (that is to say) the said actions upon the 
 case (other than for 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 qnare clausum f regit, within 
 three years nex t after the end of this present session of Parliament, or 
 within six years n ext 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 wit hiu four y ears next after the 
 cause of such actions or suit, 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 wi thin two y ears next after the words spoken and 
 not after. 
 
 4. And, nevertheless, be it enacted that if in any of the said actions 
 or suits judgment be given for the plaintiff, and the same 1)o reversed 
 l>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<t. ISCI, ;,tfr<i, p. If)'-'.
 
 42G 
 
 APPENDIX. 
 
 Limitation of 
 the Act with 
 respect to 
 grants from 
 the Crown of 
 any limited 
 estate, etc. 
 
 [p. 149.] 
 
 The said 
 manors, etc., to 
 be holden of 
 
 [p. 150.] 
 
 the Crown 
 upon the 
 usual 
 tenures, 
 
 shall or may or ought hereafter first to fall or come in possession, 
 within the space of sixty years next before the filing, issuing or 
 commencing of any 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 ; nor of, for or from any right or title first accrued or grown 
 to his IVIajesty, or any of his progenitors, predecessors or ancestors, or 
 which shall first accrue or grow to his Majesty, or any of his heirs or 
 successors, of, in or to any manors, lands, tenements, rents, tithes or 
 hereditaments, at any time or times within the space of sixty years 
 next before the filing, issuing or commencing of any 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, and not before. 
 
 4. Provided also that this Act, or anything therein contained, 
 shall not extend to any manors, lands, tenements, rents, tithes or 
 hereditaments, mentioned to be granted or conveyed by any of his 
 Majesty's progenitors, predecessors or ancestors, or by any other under 
 whom his Majesty claimeth, to any person or persons, of any limited 
 estate in fee-simple, or of any estate in tail, or other particular estate, 
 which several estates (if the same bad been good and efiectual in law), 
 have or ought to have first fallen or become in possession, or will or 
 ought first to fall or come in possession, within the space of sixty 
 years next before the filing, issuing or commencing of any 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 
 i-ecovering ihe same, or in respect thereof as aforesaid ; nor to any 
 manors, lands, tenements, rents, tithes or hereditaments, mentioned to 
 be granted or conveyed by any of his Majesty's progenitors, prede- 
 cessors, or ancestors, or by any other under whom his Majesty claimeth, 
 to any person or persons in fee-tail, or other particular estate, whereof 
 the reversion or inheritance (if such estate tail, or other particular 
 estate, had been good and effectual in law) should have been and con- 
 tinued in his Majesty, or any of his progenitors, predecessors or 
 ancestors, or should or ought hereafter to be and continue in his 
 Majesty, his heirs or successors, at any time within the space of sixty 
 years next before the filing, issuing or commencing of any 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. 
 
 5. Provided also that all and singular the said manors, lands, 
 tenements and hereditaments, shall at all times hereafter be holden of 
 his Majesty, his heirs and successors, and of other person and persons, 
 bodies politic and corporate, their heirs and successors respectively, 
 by the same tenures, services, fee-farms, chief rents, heriots and other 
 duties, to all intents and purposes as the same should or ought of right
 
 APPENDIX. 
 
 427 
 
 to have been holden if the estates, rights and interests, established 
 and made sure by this present Act, had been, before the making of 
 this Act, firm, good, and effectual in law. 
 
 6. Saving to every person and persons, bodies politic and corporate, 
 their heirs and successors (other than his most excellent Majesty, his 
 heirs and successors, and other than all patentees or grantees of con- 
 cealments or defective titles, and all and every person or persons 
 claiming from, by, or under them, or any of them, for or in respect or 
 ]jy reason of any such patents or grants of concealments or defective 
 titles) all such rights, title, interest, estate, rents, commons, customs, 
 duties, profits and other claims and demands whatsoever, in, to or out 
 of the said manors, lands, tenements, tithes or hereditaments, as they 
 or any of them had or ought to have had before the making of this 
 Act ; anything in this Act to the contrary notwithstanding. 
 
 7. Provided also that where any fee farm rent, or other rent or 
 rents have been or shall be answered and actually paid to the King's 
 Majesty, or to any his predecessors, heirs or successors, within the 
 space of sixty years next before an action, bill, plaint, information, 
 commission or other suit or proceeding shall at any time or times 
 hereafter be filed, issued or commenced for recovering the same, or in 
 respect thereof, out of any manors, lands, tenements or hereditaments, 
 of which manors, lands, tenements or hereditaments the estates, 
 rights or interests being defective are established and made sure 
 l)y this present Act, that the King's Majesty, his heirs and successors, 
 shall from henceforth for ever have, hold and enjoy the said rents, 
 and arrearages thereof, in such manner and form, and as fully and 
 amply, as the same are or were enjoyed at any time within the said 
 space of sixty years. 
 
 8. Provided always that nothing in this Act contained shall extend 
 or be prejudicial to the right, title or claim of any person or persons 
 in or to any manors, lands, tenements or hereditaments, by virtue of 
 or under any grant or grants, letters patent oi- letters patents from 
 any of his Majesty's progenitors, ancestors or predecessors, or by 
 virtue of or under any grant or grants, lettei's patent or letters patents, 
 from his ^Majesty, made or passed before the first day of January, one 
 thousand seven hundred and sixty-nine ; so as such right, title or 
 claim be prosecuted with effect by Ijill, plaint, information or other suit 
 or proceeding, in some of his Majesty's Courts of Record at West- 
 minster, within the space of one yeai- from tlie first day of Jaiuiaiy, 
 one thousand seven hundred and sixty-Jiine. 
 
 9. Provided always that nothing in this Act contained shall extend 
 or be prejudicial to any right, title or claim, which his Majesty now 
 hath, to any lands, tenements or hereditaiiii'nts, within the manor of 
 East Greenwich, in the county of Kent ; or to any messu.ages, lands, 
 tenements or hereditaments, within the precinct, district or libctty 
 commonly called the Savoy, in the county of Middlesex ; or to any the 
 
 services and 
 duties. 
 
 General 
 reservation 
 of rip;hts. 
 [p. i-.o.] 
 
 Provision for 
 securing to 
 tlie Crown 
 such fee farm 
 or other rents, 
 etc., as have 
 been paid 
 witliin a 
 limited time. 
 
 [p. ir,o.] 
 
 Rifjjht under 
 any i;rant 
 from tlie 
 Crown of any 
 manors, etc., 
 made before 
 Ist January, 
 17(!lt, not ]ne- 
 judiced liy 
 tliis Act, 
 
 if pro- 
 sccutcd 
 witliin a year. 
 
 Riglit of the 
 Crown to any 
 lands, j'tr.. 
 within tin- 
 manor of I'^ast 
 (irocnwic'h, or 
 district of iJir 
 Siiviiy ndt 
 prcjndicid,
 
 428 
 
 APPENDIX. 
 
 if prosecuted 
 within two 
 years. 
 
 Provision de- 
 claring what 
 shall or shall 
 not be deemed 
 a putting in 
 
 [p. 151.] 
 
 charge, 
 standing 
 insuper, or 
 taking or 
 answering by 
 or to the 
 Crown, etc. 
 
 manors, messuages, advowsons, buildings, lands, tenements, heredita- 
 ments and appurtenances, being the estate and possession of the late 
 hospital of the Savoy, or of the master and chaplains of the said 
 hospital : so as such right, title or claim, be prosecuted with effect by 
 bill, plaint, information, or other suit or proceeding, in some of his 
 Majesty's Courts of Eecord at Westminster, within the space of two 
 years from the first day of January, one thousand seven hundred and 
 sixty-nine. 
 
 10. Provided always that no putting in charge, nor standing in- 
 super, nor taking or answering the farm rents, revenues or profits of 
 any of the said manors, lands, tenements or hereditaments, by force, 
 colour or pretext of any letters patent or grants of concealments, or 
 defective titles, or of manors, lands, tenements or hereditaments out of 
 charge, or by force, colour or pretext of any inquisitions, presentments 
 by or by reason of any commission or other authority to find out con- 
 cealments, defective titles, or lands, tenements or hereditaments out of 
 charge, shall be deemed, construed or taken to be a putting in charge, 
 standing insuper, or taking or answering the farm rents, revenues or 
 profits by or to his Majesty, or any of his progenitors or predecessors, 
 heirs or successors ; unless thereupon such manors, lands, tenements 
 or hereditaments, have been or shall be, upon some information or suit, 
 on the behalf of his Majesty, or some of his progenitors or predecessors, 
 heirs or successors, upon a lawful verdict given or to be given, or 
 demurrer in law, adjudged, or upon a hearing ordered or decreed for 
 his Majesty, or of some of his progenitors or predecessors, heirs or suc- 
 cessors, or some of them, 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 proceeding as shall at any 
 time or times hereafter be filed, issued or commenced for recovering 
 the same, or in respect thereof as aforesaid. 
 
 The Irish 
 Nullum 
 Tempus Act. 
 
 THE CROWN CLAIMS LIMITATION (IRELAND) ACT, 1808 
 
 (48 Oeo. 3, c. 47). 
 
 An Act for quieting Poi^sessions and confirming defective Titles in Ireland, 
 and limiting the Bight of the Groion to sue in manner therein 
 mentioned ; and for the Relief of Incumhents in respect of Arrears 
 due to the Crown, during the Incumbency of their Predecessors. 
 
 [27th May, 1808.] 
 9 Geo. 3,c. IG. Preamble recites 9 Geo 3, c. IG : And whereas it is expedient to limit 
 in like manner the right and title of his Majesty, his heirs and 
 successors, in and to all manors, lands, tenements, rents, tithes and 
 hereditaments (except liberties and franchises) in Ireland to sixty 
 years next before the commencement of any suit or proceeding for 
 the same, and to secure to all his Majesty's subjects the free and quiet
 
 APPENDIX. 429 
 
 enjoyment of all luauors, lands, tenements, rents, tithes and heredita- 
 ments which they or those under whom they claim respectively have 
 held or enjoyed, or whereof they have taken the rents, revenues, issues 
 or profits, for the space of sixty years next before the commencement 
 of any suit or proceeding for the same. 
 
 1. The King's ^lajesty, his heirs or successors, shall not at any 'j;iie down 
 
 time hereafter sue, impeach, question or implead any person or persons, «lif»ll ^^t sue 
 , T T,. i.-Tij£ . '^ '■ . . (ill Ireland) 
 
 bodies politic or corporate in Ireland, tor or in anywise concerning 
 
 any manors, lands, tenements, rents, tithes or hereditaments whatso- ^ ' ^ , 
 
 c 1 • \ p • • .for any estate 
 
 ever (other than liberties or franchises), or for or in anywise concerning -when the 
 
 the revenues, issues or profits thereof, or make any title, claim, right has not 
 
 challenge, or demand of, in, or to the same or any of them, by reason ^yithin sixty 
 
 of any right or title which hath not first accrued or grown, or which years before 
 
 shall not hereafter first accrue or grow, within the space of sixty years n^encemeut of 
 
 next before the filing, issuing or commencing of every such action, such suit, 
 
 bill, plaint, information, commission or other suit or proceeding, as "" . 
 
 shall at any time or times hereafter be filed, issued or commenced for been in pos- 
 
 recoverinff the same or in respect thereof, unless his Maiesty, or some session, etc., 
 
 ^ , * . 11- J ^ ' or the rents 
 
 of his progenitors, predecessors, heirs or successors, or some other ^ave been in 
 
 person or persons, bodies politic or corporate, under whom his Majesty, charge to tlie 
 his heirs or successors, any thing hath or lawfully claimeth, or shall ^^^ gj^^y 
 have or lawfully claim, have or shall have been in the actual seisin years, 
 thereof, or have or shall have been answered by force and virtue of 
 any right or title to the same the rents, revenues, issues or profits 
 thereof, or the rents, issues or profits of any honors, manors, or other here- 
 ditaments, whereof the premises in question shall he part or parcel, (ii) within 
 the said space of sixty years, or that the same have or shall have been 
 duly in charge to his Majesty, or some of his progenitors, predecessors or 
 ancestors, heirs or successors, tvithin the said space of sixty years (a). 
 
 And all and every person or persons, bodies politic and corporate, The subject 
 
 their heirs and assigns, and all claiming by, from, or under them or any '^'^^"^"'^S '\ '.• 
 o ' o J ' ' J possession oi 
 
 of them, for and according to their and every of their several estates sixty years. 
 and interests which they have or claioi to have, or shall or may have [p. 117.] 
 or claim to have in the same respectively, shall at ail times hereafter 
 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 
 the said space of sixty years, all and singular manors, lands, tene- 
 ments, rents, tithes and hereditaments whatsoever (excejjt liberties 
 and franchises) which he or they, or his or their or any of their 
 ancestors or i)rcdecessors, or those fntnij by uv under whom they 
 do or shall claim, [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 actiun, l)i!l, 
 
 (a) licpeuled in effect Ity tlie Nulhiiu Teuipus (Ireland; Act, l!S7(j {infra, j). l.'tS).
 
 430 
 
 APPENDIX. 
 
 In what cases 
 the reuts shall 
 be deemed in 
 charge. 
 
 [p. 144.] 
 
 Gases in 
 which rever- 
 sions or re- 
 mainders in 
 the Crown of 
 any lands, 
 etc., are not 
 liable to be 
 impeached by 
 this Act. 
 
 [p. 148.] 
 
 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, 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, l)y force of any right 
 or title have or shall have been in the actual seisin thereof, or 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 as 
 aforesaid within the said space of sixty years (a). 
 
 2. Provided always that where the rents, revenues, issues or profits 
 of any manors, lands, tenements, tithes or hereditaments are or shall 
 be in charge, by, to, or with any auditor or auditors, or proper 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 intent 
 and meaning of this Act ; any usage or custom to the contrary 
 notwithstanding. 
 
 3. Provided always that this Act or any thing herein contained shall 
 not extend to bar, impeach or hinder his Majesty, his heirs or successor.s, 
 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, predecessors or ancestors, which 
 by the expiration, end, or other determination of any limited estate 
 of fee simple, or of any fee tail or other particular estate, hath or 
 ought to have first fallen or become in possession, or which shall 
 or may or ought hereafter first to fall or come in possession, within 
 the space of sixty years next before the filing, issuing or commencing 
 of any 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 ; 
 nor of, for, or from any right or title first accrued or grown to his 
 Majesty, or any of his progenitors, predecessors or ancestors, or 
 which shall first accrue or grow to his Majesty, or any of his 
 iieirs or successors, of, in, or to any manors, lands, tenements, rents, 
 tithes or hereditaments, at any time or times within the space of sixty 
 years next before the filing, issuing or commencing of any 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, and 
 not before. 
 
 (a) Kepealed in effect by the Nullum TempuB (Ireland) Act, 1876 {infra, p. 458).
 
 APrEXDIX. 
 
 431 
 
 4. Provided also that all and singular the said manors, lands, 
 tenements, tithes and hereditaments, shall at all times hereafter be 
 holden of his Majesty, his heirs and successors, and of other person or 
 persons, bodies politic and corporate, their heirs and successors 
 respectively, by the same tenures, services, fee farms, chief rents, quit 
 rents, heriots, and other duties, to all intents and purposes, as the 
 same should or ought of right to have been holden if the estates, rights 
 and interests established and made sure by this present Act had been 
 before the making of this Act firm and effectual in law : saving to every 
 person and persons, bodies politic and corporate, their heirs and suc- 
 cessors (other than his most excellent Majesty, his heirs and successors) 
 all such rights, title, interest, estate, rents, commons, customs, duties, 
 profits, and other claims and demands whatsoever, into or out of the 
 said manors, lands, tenements, tithes or hereditaments, as they or any 
 of them had or ought to have had before the passing of this Act ; any 
 thing in this Act to the contrary notwithstanding. 
 
 5. Provided also that where any fee farm rent, or other rent or 
 rents have been or shall be answered and actually paid to the King's 
 Majesty, or to any of his predecessors, heirs or successors, within the 
 space of sixty years next before any action, bill, plaint, information, 
 commission, or other suit or proceeding shall at any time or times 
 hereafter be filed, issued or commenced for recovering the same, or in 
 respect thereof, out of any manors, lands, tenements, tithes, or here- 
 ditaments, of which manors, lands, tenements, tithes, or heredita- 
 ments, the estates, rights or interests, being defective, are established 
 and made sure by this present Act, [that] his Majesty, his heirs and 
 successors, shall fi'om henceforth for ever have, held, and enjoy the 
 said rents and arrearages thereof in such manner and form and as fully 
 and as amply as the same are or were enjoyed at any time within the 
 said space of sixty years. 
 
 6. In all cases where any rents or other dues in the nature or lieu 
 of rents now are or shall hereafter become due and payable to his 
 Majesty, his heirs and successors, out of or chargeable upon any 
 rectories, vicarages, curacies or other ecclesiastical benefices, or payable 
 by the rectors, vicars, curates, or other ecclesiastical persons, the in- 
 cumljents thereof respectively having respectively actual cure of souls, 
 such rectors, \icars, curates, or other ecclesiastical persons, or any of 
 them, shall not be subject or liable to or compellable to pay or satisfy 
 to his Majesty, his heirs or successors, any arrear or arrears of such 
 rent (jr rents, or other dues which shall have accrued or shall hereafter 
 accrue due and payalde Ijefure the accruing of the title of such rector, 
 vicar, curate or other ecclesiastical person to such rectories, \ icarages, 
 curacies or other ecclesiastical benefices aforesaid; and no distress, 
 action, .suit or (jther proceeding whatsoever shall be made, brought, 
 commenced or prosecuted against any such rector, vicai-, curate, or 
 other ecclesiastical person during his life, or against his lands. 
 
 I-ands to bo 
 holdeu of the 
 Crown upon 
 the usual 
 tenures, 
 services, and 
 duties. 
 
 [p. 151.] 
 
 Where rents 
 shall be paid 
 to the Crown 
 within sixty 
 years, they 
 shall remain 
 payable. 
 [p. 151.] 
 
 Incumbents 
 of benefices 
 siiall not be 
 liable for 
 arrears of 
 Crown rents 
 accrued before 
 their incum- 
 bency.
 
 432 
 
 APPENDIX. 
 
 tenements, goods or chattels after his death, for any such arrear, or 
 any part thereof. 
 
 Lord Tentei- 
 dcn's Act. 
 
 In actions of 
 debt or upon 
 tlie case 
 i^roundcd 
 upon simple 
 contract, no 
 acknowledg- 
 ment or 
 [p. 325.] 
 promise shall 
 be deemed 
 sufficient 
 evidence of a 
 contract, 
 unless it be in 
 writing 
 [p. 353.] 
 
 signed by the 
 
 party 
 
 chargeable. 
 
 [p. 379.] 
 
 Acknowledg- 
 ment by joint 
 contractor not 
 to bind the 
 
 others. 
 
 [p. 353.] 
 
 Effect of part 
 payment not 
 to be altered. 
 
 riaintift" may 
 recover 
 against one 
 joint con- 
 tractor 
 though he 
 may fail 
 against the 
 others. 
 
 Pleas in 
 abatement. 
 
 THE STATUTE OF FRAUDS AMENDMENT ACT, 1828 
 
 (9 Geo. 4, c. 14). 
 
 An Act for rendering a ivrittcn memorandum necessary to the validity of 
 certain promises and engagements. 
 
 [mh May, 1828.] 
 Preamble recites English Act (21 Jac. 1, c. 16), and Irish Act (10 Car. 1, 
 sess. 2, c. 6) : and whereas various questions have arisen in actions 
 founded on simple contract, as to the proof and effect of acknowledg- 
 ments and promises oflered in evidence for the purpose of taking cases 
 out of the operation of the said enactments ; and it is expedient to 
 prevent such questions, and to make provision for giving effect to the 
 said enactments and to the intention thereof. 
 
 1. («) In actions of debt or upon the case grounded upon any simple 
 contract no acknowledgment or promise by words only shall be deemed 
 sufficient evidence of a new or continuing contract, whereby to take 
 any case out of the operation of the said enactments or either of them, 
 or to deprive any party of the benefit thereof, unless such acknowledg- 
 ment 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 contractor, no such joint contractor, executor, or administrator 
 shall lose the benefit of the said enactments or either of them, so as to 
 be chargeable in respect or by reason only of any written acknowledg- 
 ment 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 whatsoever : Provided also, that in actions to be 
 commenced against two or more such joint contractors, or executors or 
 administrators, if it shall appear at the trial or otherwise that the 
 plaintiff, though barred by either of the said recited Acts or this Act, 
 as to one or more of such joint contractors, or executors or administrators, 
 shall nevertheless Ije entitled to recover against any other or others of 
 the defendants, by virtue of a new acknowledgment or promise, or 
 otherwise, judgment may be given and costs allowed for the plaintiff as 
 to such defendant or defendants against whom he shall recover, and 
 for the other defendant or defendants against the plaintiff. 
 
 Sect. 2. (Pleas in Abatement), repealed, 53 & 54 Vict. c. 33 
 (S. L. B.). 
 
 (a) Sects. 1 to 4 are repealed so far as they relate to personal actions or actions 
 of ejectment in the superior courts of law in Ireland : Ir. 0. L. P. A., 1853 (IG & 17 
 Yict. c. 113), s. 3.
 
 APPENDIX. 
 
 433 
 
 3. No indorsement or memorandum o£ any payment written or 
 made after the time appointed for this Act to take efi'ect upon any 
 promissory note, bill of exchange, or other writing, by or on the behalf 
 of the party to whom such payment shall be made, shall be deemed 
 sufficient proof of such payment, so as to take the case out of the 
 operation of either of the said statutes. 
 
 4. The said recited Acts and this Act shall be deemed and taken 
 to apply to the case of any debt on simple contract alleged by way of 
 set-oft" on the part of any defendant, either by plea, notice or other- 
 wise. 
 
 8. No memorandum or other writing made necessary by this Act 
 shall be deemed to be an agreement within the meaning of any statute 
 relating to the duties of stamps. 
 
 9. Nothing in this Act contained shall extend to Scotland. 
 
 THE REAL PROPEETY LIMITATION ACT, 1833 
 
 (3 & 4 Will. 4, c. 27). 
 
 An Act for the Limitation of Actions and Suits relating to Meal Property, 
 and fur sinqjllfyiny the Bemedies for trying tlie Bights thereto. 
 [The sections in italics have been repealed and replaced by the 
 R. P. L. A., 1874.] 
 
 [24//* Jidy, 1833.] 
 1. The words and expressions hereinafter mentioned, which in 
 their ordinary signification have a more confined or a difterent 
 meaning, shall in this Act, except where the nature of the provision 
 or the context of the Act shall exclude such construction, be inter- 
 preted as follows ; (that is to say,) the word " land " shall extend to 
 manors, messuages, and all other corporeal hereditaments whatsoever, 
 and also to tithes (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 ; and the word " rent " shall extend to all heriots, 
 and to all services and suits for which a distress may be made, and to 
 all annuities and periodical sums of money charg ed upon or payable 
 out of any land (except moduses or compositions belonging to a 
 spiritual or eleemosynary corporation sole) ; and the person through 
 whom another person is said to claim shall mean any person by, 
 through, or under, c^r by the act of whom, the person so claiming 
 became entitled to the estate or interest claimed, as heir, issue in 
 tail, tenant by the curtesy of lOiigland, tenant in dower, successor, 
 special or general occupant, exec utmyadlljinistrator, legatee, husljand, 
 assignee, appointee, devisee, or otherwise, and also any perstjn who 
 was entitled to an estate or interest to which the ptTSOn so claiiiiiiig, 
 T.L.A. 2 F 
 
 Indorsements 
 of payment by 
 payee not to 
 
 [p. 379.] 
 
 save statute. 
 
 Statute to 
 apply to 
 simple con- 
 tract debts 
 
 [p. 246.] 
 
 alleged by 
 way of set-off. 
 
 Memoran- 
 dum ex- 
 
 [p. 345.] 
 
 empted from 
 stamp duties. 
 
 Not to extend 
 to Scotland. 
 
 Meaning of 
 the words in 
 the Act. 
 
 " I.and." 
 
 [p. 17-] 
 
 " Rent." 
 [p. 21.] 
 
 Person 
 
 througli 
 wliom 
 
 [p. 9. 1 
 
 another 
 claims.
 
 434 
 
 APPENDIX. 
 
 " Person." 
 
 [p. 8.] 
 
 Number and 
 jrender. 
 
 SeeR.P.L.A., 
 1874, s. 1. 
 
 [p. 8.] 
 
 When the 
 right shall be 
 deemed to 
 have accrued : 
 
 in the case of 
 
 [p. 29.] 
 
 an estate in 
 possession ; 
 
 in the case of 
 
 [p. 49.1 
 
 the estate of 
 a deceased 
 person ; 
 
 in the case of 
 an estate 
 
 [p. 49.] 
 
 passing under 
 some instru- 
 ment other 
 than a will ; 
 
 in case of a 
 future estate 
 [p. 52.] 
 
 or some person through whom he claims, became entitled as lord by 
 escheat; and the word "person" shall extend to a body politic, 
 corporate, or collegiate, and to a class of creditors or other persons, 
 as well as an individual ; and every word importing the singular 
 number only shall extend and be applied to several persons or things 
 as well as one person or thing ; and every word importing the 
 masculine gender only shall extend and be applied to a female as 
 well as a male. 
 
 2. After the thirty-first day of Decemher one thousand eight hundred 
 and thirty-three no person shall make an entry or distress or bring an 
 action to recover any land or rent hut ivithin tiventy years next after the 
 time at which the right to make such entry or distress or to bring such 
 action shall have first accrued to some person through whom he claims; or 
 if such right shall not have accrued to any person through whom he claims, 
 then toithin twenty years next after the time at which the right to malce such 
 entry or distress or to bring such action shall have first accrued to the 
 person maJcing or bringing the same. 
 
 3. In the construction of this Act the right to make an entry or 
 distress or bring an action to recover any land or rent shall be deemed 
 to have first accrued at such time as hereinafter is mentioned ; (that 
 is to say,) when the person claiming such land or rent, or some person 
 through whom he claims, shall, in respect of the estate or interest 
 claimed, have been in possession or in I'eceipt of the profits of such 
 land, or in receipt of such rent, and shall while entitled thereto have 
 been dispossessed, or have discontinued such possession or receipt, 
 then such right shall be deemed to have first 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 ; and when 
 the person claiming such land or rent shall claim the estate or interest 
 of some deceased person who shall have continued in such possession 
 or receipt in respect of the same estate or interest until the time of his 
 death, and shall have been the last person entitled to such estate or 
 interest who shall have been in such possession or receipt, then such 
 right shall be deemed to have first accrued at the time of such death; 
 and when the person claiming such land or rent shall claim in respect 
 of an estate or interest in possession granted, appointed or otherwise 
 assured by any instrument (other than a will) to him, or some person 
 through whom he claims, by a person being in respect of the same 
 estate or interest in the possession or receipt of the profits of the 
 land, or in the receipt of the rent, and no person entitled under such 
 instrument shall have been in such possession or receipt, then such 
 right shall be deemed to have first accrued at the time at which the 
 person claiming as aforesaid, or the person through whom he claims, 
 became entitled to such possession or receipt by virtue of such 
 instrument ; and when the estate or interest claimed shall have been 
 an estate or interest in reversion or remainder, or other future estate
 
 APPENDIX. 
 
 435 
 
 or interest, and no person shall have obtained the possession or receipt 
 of the profits of such land or the receipt of such rent in respect of such 
 estate or interest, then such right shall be deemed to have first accrued 
 at the time at which such estate or interest became an estate or interest 
 in posses sion^; and when the person claiming such land orient, or the 
 person through whom he claims, shall have become entitled by reason 
 of any forfeiture or breach of condition, then such right shall be deemed 
 to have first accrued when such forfeiture was incurred or such condi- 
 tion was broken. 
 
 4. Provided always, that when any right to rnake an entry or 
 distress or to bring an action to recover any land or rent, by reason 
 of any forfeiture or breach of condition, shall have first accrued in 
 respect of any estate or interest in reversion or remainder, and the 
 land or rent shall not have been recovered by virtue of such right, 
 the right to make an entry or distress or bring an action to recover 
 such land or rent shall be deemed to have first accrued in respect of 
 such estate or 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. 
 
 5. Provided also, that a right to maJce an entry or distress or to bring 
 an action to recover any land or rent shall he deemed to have first accrued, 
 in respect of an estate or interest in reversion, at the time at lohich the 
 same shall have become an estate or interest in possession by the determina- 
 tion 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, notwith- 
 standing the person claiming such land, or some person through lohom he 
 claims, shall, at any time previously to the creation of the estate or estates 
 which shall have determined, have been in possession or receipt of the profits 
 of such land, or in receipt of such rent. 
 
 6. For the jDurposes of this Act an administrator claiming the 
 estate or interest of the deceased person of whose chattels he shall be 
 appointed administrator shall be deemed to claim as if there had been 
 no interval of time between the death of such deceased person and the 
 grant of the letters of administration. 
 
 7. When any person shall be in possession or in receipt of the 
 profits of any land or in receipt of any rent, as tenant at will, the 
 right of the person entitled subject thereto, or of the person through 
 whom he claims, to make an entry or distress or bring 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 dctci-iniiied : Provided 
 always, 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. 
 
 8. When any person shall be in possession or in receipt of the 
 
 [p. 57.] 
 
 in case of a 
 forfeiture or 
 breach of 
 condition. 
 
 Where 
 
 reversioner 
 
 [p. 57.] 
 
 does not take 
 advantage of 
 a forfeiture, he 
 shall have a 
 new right 
 when ills 
 estate comes 
 into pos- 
 session. 
 
 See 
 
 R. P. L. A., 
 
 1874, 3. 2. 
 
 [p. 54.] 
 
 Administrator 
 shall claim as 
 if he obtained 
 
 [p. 51.] 
 
 the estate 
 without 
 interval after 
 death of 
 deceased. 
 
 In case of 
 
 [p. 97.] 
 
 tenant at will, 
 tlie right shall 
 be deemed to 
 liave accrued 
 at til o deter- 
 mination of 
 the tenancy, 
 or at the end 
 
 [p. 7G.] 
 of one year 
 from its cnm- 
 meucement.
 
 436 
 
 APPENDIX. 
 
 In case of 
 tenancy from 
 
 [p. 108.] 
 
 year to year, 
 etc., the right, 
 shall be 
 deemed to 
 have accrued 
 at the end of 
 the iirst year, 
 etc., or at the 
 last pay- 
 ment of rent. 
 
 "Where rent 
 amounting to 
 
 [p. 111.] 
 
 20s., reserved 
 by a lease in 
 writing, has 
 been wrong- 
 fully received, 
 the right shall 
 be deemed to 
 have aecrued 
 at the time of 
 such wrongful 
 receipt, and 
 not on the 
 determination 
 of the lease. 
 
 A mere entry 
 not to be 
 
 [p. 11.] 
 
 deemed 
 possession. 
 
 Xo right to be 
 
 [p. 11.] 
 
 preserved by 
 
 continual 
 
 claim. 
 
 Possession of 
 
 [p. 32.] 
 
 one copar- 
 cener, etc., 
 nut tu be the 
 possession of 
 the others. 
 
 Possession of 
 a younger 
 brother, etc., 
 not to be the 
 possession of 
 the heir, 
 [p. 7.] 
 
 Acknowledg- 
 ment of title 
 
 profits of any land, or in receipt of any rent, as tenant from year to 
 year or other period, without any lease in writing, the right of the 
 person entitled subject thereto, or of the person through whom he 
 claims, to make an entry or distress or to bring an action to recover 
 such land or rent, shall be deemed to have first accrued at the deter- 
 mination of the first of such years or other periods, or at the last time 
 when any rent payable in respect of such tenancy shall have been 
 received (which shall last happen). 
 
 9. When any person shall be in possession or in receipt of the 
 profits of any land, or in receipt of any rent, by virtue of a lease in 
 writing, by which a rent amounting to the yearly sum of twenty 
 shillings or upwards shall be reserved, and the rent reserved by such 
 lease shall have been received by some person wrongfully claiming to 
 be entitled to such land or rent in reversion immediately expectant 
 on the determination of such lease, and no payment in respect of the 
 rent reserved by such lease shall afterwards have been made to the 
 person rightfully entitled thereto, the right of the person entitled to 
 such land or rent, subject to such lease, or of the person through whom 
 he claims, to make an entry or distress or to bring an action after the 
 determination of such lease, shall be deemed to have first accrued at 
 the time at which the rent reserved by such lease was first so received 
 by the person wrongfully claiming as aforesaid ; and no such right shall 
 be deemed to have first accrued upon the determination of such lease 
 to the person rightfully entitled. 
 
 10. No person shall be deemed to have been in possession of any 
 land within the meaning of this Act merely by reason of having made 
 an entry thereon. 
 
 11. No continual or other claim upon or near any land shall 
 preserve any right of making an entry or distress or of bringing an 
 action. 
 
 12. When any one or more of several persons entitled to any land 
 or rent as coparceners, joint tenants, or tenants in common, shall have 
 been in possession or receipt of the entirety, or more than his or their 
 undivided share or shares, of such land or of the profits thereof, or of 
 such rent, for his or their own benefit, or for the benefit of any person 
 or persons other than the person or persons entitled to the other share 
 or shares of the same land or rent, such possession or receipt shall not 
 be deemed to have been the possession or receipt of or by such last- 
 mentioned person or persons or any of them, 
 
 13. When a younger brother or other relation of the person entitled 
 as heir to the possession or receipt of the profits of any land, or to the 
 receipt of any rent, shall enter into the possession or receipt thereof, 
 such possession or receipt shall not be deemed to be the possession or 
 receipt of or by the person entitled as heir. 
 
 14. Provided always, that when any acknowledgment of the 
 title of the person entitled to any land or rent shall have been given
 
 APPENDIX. 
 
 487 
 
 to him or his agent in writing signed by the person in possession or in 
 receipt of the profits of such land, or in receipt of such rent, then such 
 possession or receipt of or by the person by whom such acknowledgment 
 shall have been given shall be deemed, according to the meaning of 
 this Act, to have been the 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 dis- 
 tress 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 acknow- 
 ledgment, or the last of such acknowledgments, if more than one, was 
 given. 
 
 15. Provided also, that when no such acknowledgment as afore- 
 said shall have been given befoi'e the passing of this Act, and the 
 possession or receipt of the profits of the land, or the receipt of the 
 rent, shall not at the time of the passing of this Act have been adverse 
 to the right or title of the person claiming to be entitled thereto, 
 then such person, or the person claiming through him, may, notwith- 
 standing the period of twenty years hereinbefore limited shall have 
 expired, make an entry or distress or bring an action to recover such 
 land or interest (a) at any time within five years next after the passing 
 of this Act. 
 
 16. Provided ahvays, that if at the time at ivhich the right of any 
 person to make an entry or distress or bring an action to recover any land 
 or rent shall have first accrued as aforesaid such person shall have been 
 under any of the disabilities hereinafter mentioned, (that is to say,) infancy, 
 coverture, idiotcy, lunacy, unsoundness of mind, or absence beyond seas, 
 then such person, or the person claliiting through him, may, notioithstanding 
 the period of twenty years hereinbefore limited shall have expired, make 
 an entry or distress or bring an action to recover such land or rent at any 
 time within ten years next after the time at which the person to whom such 
 right shall first have accrued as aforesaid >>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 
 
 (<i) A iiii.s]iriiit for "rent." 
 
 in writing- 
 given to the 
 
 [p. 322.] 
 
 person en- 
 titled, or his 
 agent, shall be 
 eqnivalent to 
 possession or 
 receipt of rent, 
 and time shall 
 run from the 
 date thereof. 
 
 Where pos- 
 session is not 
 adverse at 
 the time of 
 
 [p. 7.] 
 
 passing this 
 Act, the riglit 
 shall not be 
 barred until 
 tbe end of 
 five years 
 iifterward.s. 
 
 SeeR.P.L.A. 
 IS74, s. 3. 
 
 [p. 2SS.] 
 
 See 
 
 u. P. r.. A., 
 
 1S74. s. ."•. 
 [p. 289.] 
 
 No furtlier 
 time to Wo
 
 438 
 
 APPEXDTX. 
 
 allowed for a 
 succession of 
 disabilities. 
 
 [p. 288.] 
 
 Scotland. 
 Ireland, etc., 
 not to be 
 deemed be- 
 yond seas. 
 
 When the 
 right of any 
 person to an 
 estate in pos- 
 
 [p. 59.] 
 
 session is 
 barred, his 
 right to 
 future estates 
 shall also be 
 barred. 
 
 Where right 
 of tenant in 
 
 [p. 62.] 
 
 tail is barred, 
 remainder- 
 men 
 
 whom he 
 might have 
 barred shall 
 not recover. 
 
 Possession 
 
 [p. 62.] 
 
 adverse to a 
 tenant in tail 
 shall run on 
 against the 
 remainder- 
 men whom he 
 might have 
 barred. 
 
 the disabilities hereinbefore mentioned at the time at which his inejht to 
 make an entry or distress or to bring an action to recover any land or 
 rent shall have first accrued, and shall depart this life without liaving 
 ceased to be under any such disability, no time to make an entry or dis- 
 tress or to bring an action to recover such land or rent beyond the said 
 period of twenty (rt) years next after the right of such person to make 
 an entry or distress or to bring an action to recover such land or rent 
 shall have first accrued, or the said period of ten (a) years next after 
 the time at which such person shall have died, shall be allowed by 
 reason of any disability of any other person. 
 
 19. No part of the United Kingdom of Great Britain and Ireland, 
 nor the Islands of Man, Guernsey, Jersey, Alderney, or Sark, nor any 
 island adjacent to any of them (being part of the dominions of his 
 Majesty), shall be deemed to be beyond seas within the meaning of 
 this Act (h). 
 
 20. When the right of any person to make an entry or distress or 
 bring an action to recover any land or rent to which he may have 
 been entitled for an estate or interest in possession shall have been 
 barred by the determination of the period hereinbefore limited, which 
 shall be applicable in such case, and such person shall at any time 
 during the said period have been entitled to any other estate, interest, 
 right, or possibility, in reversion, remainder, or otherwise, in or to the 
 same land or rent, no entry, distress or action shall be made or 
 brought by such person, or any person claiming through him, to re- 
 cover such land or rent, in respect of such other estate, interest, right, 
 or possibility, unless in the meantime such land or rent shall have 
 been recovered by some person entitled to an estate, interest, or right, 
 which shall have been limited or taken effect after or in defeasance 
 of such estate or interest in possession. 
 
 21. AVhen the right of a tenant in tail of any land or I'ent to make 
 an entry or distress or to bring an action to recover the same shall 
 have been bapred by reason of the same not having been made or 
 brought within the period hereinbefore limited, which shall be 
 applicable in such case, no such entry, distress or action shall be made 
 or brought by any person claiming any estate, interest, or right which 
 such tenant in tail might lawfully have barred. 
 
 22. When a tenant in tail of any land or rent, entitled to recover 
 the same, shall have died before the expiration of the period herein- 
 before limited, which shall be applicable in such case, for making an 
 entry or distress or bringing an action to recover such land or rent, 
 no person claiming any estate, interest, or right, which such tenant in 
 tail might lawfully have barred, shall make an entry or distress or 
 bring an action to recover such land or rent but within the period 
 
 (a) These periods are altered to twelve and six years by sect. 9 of the R. P. L. A. 
 1874. 
 
 (h) This section is made obsolete by sect. 4 of the E. P. L. A., 1874.
 
 APPENDIX. 439 
 
 during which, if such tenant in tail had so long continued to 
 live, he might have made such entry or distress or brought such 
 action. 
 
 23. When a tenant in tail of any land or rent shall have made an See 
 assurance thereof, loliich shall not operate to bar an estate or estates to ig-^ g ,; ' 
 ialce effect after or in defeasance of his estate tail, and any person shall r- ^o -i 
 
 by virtue of such assurance, at the time of the execution thereof or at any 
 time afterwards, be in possession or receipt of the profits of such land, 
 or in the receipt of such rent, and the same person, or any other person 
 whatsoever (other than some person entitled to such possession or receipt in 
 respect of an estate lohicli 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 twenty years next after the commencement of the time at which 
 such assurance, if it had then been executed by such tenant in tail, or the 
 person who would have been entitled to his estate tail if such assurance had 
 not been executed, would, without the consent of any other person, have 
 operated to bar such estate or estates as aforesaid, then, at the expiration 
 of such period of ticenty years, such assurance shall he and he deemed to 
 have been effectual as against any person claiming any estate, interest, or 
 right to take effect after or in defeasance of such estate tail. ^ 
 
 24. No person claiming any land or rent in equity shall bring any equity to be 
 suit to recover the same but within the period during which, by virtue [p. G8.] 
 
 of the provisions hereinbefore contained, he might have made an entry brought after 
 
 or distress or brought an action to recover the same respectively, if he *!^® *V".^ ]T^®" 
 
 had been entitled at law to such estate, interest, or right in or to the if entitled at 
 
 same as he shall claim therein in equity. j''^'^^'' '?^°''*, 
 
 2"). Provided always, that when any land or rent shall be vested an action.^ 
 
 in a trustee upon any express trust, the right of the cestui que trust, in cases of 
 
 or any person claiming through him, to bring a suit against the [p. 68.] 
 
 trustee, or any person claiming through him, to recover such land or express trust, 
 
 rent, shall be deemed to have first accrued, according to the meaning the right sliall 
 
 , . , , , not be deemed 
 
 of this Act, at and not before the time at which such land or rent shall to have 
 
 have been conveyed to a purchaser for a valuable consideration, and f^ccrued until 
 
 shall then be deemed to have accrued only as against such purchaser ^ .^ pur- 
 
 and any person claiming through him. chaser, and 
 
 26. In every case of a concealed fraud the right of any person to j,gninst him 
 
 bring a suit in equity for the recovery of any land or rent, of which he, jn p.^ggg ^f 
 
 or any person through whom he claims, may have been deprived by pp ao2.1 
 
 such fraud, shall be deemed to have first accrued at and not before fraud no time 
 
 the time a.t which such fra ud shall or with reasonalde diligence might shall run 
 
 h ave be en fir.st known or~3Ticovered : Provided that nothing in this fraud remaina 
 
 clause contained shall onTible any (5wner of lands or rents to have a conecaled. 
 
 suit in equity for the recovery of such lands or rents, or for setting ^nvin^' as to 
 
 aside any conveyance of such lands or rents, on account of fraud, val'ua'bh'^^con"'^ 
 
 against any fiond fide purcha.ser for valuable consideration who has Hiilerntinn 
 
 not as.sisted in the commis.sion of snch fraud, and who at the time that ^^'ticl"
 
 440 
 
 APPENDIX. 
 
 Saving as to 
 refusing relief 
 
 [p. 25i.] 
 
 in equity on 
 
 the ground of 
 
 acquiescence 
 
 or otherwise. 
 
 See 
 
 R. P. L. A., 
 
 1874, s. 7. 
 
 [p. 89.] 
 
 [p. 323.] 
 
 [p. 337.] 
 
 [p. 337.] 
 
 [p. 338.] 
 
 No lands or 
 rents to be 
 recovered by 
 [p. 12.] 
 
 he made the purchase did not know and had no reason to believe that 
 any such fraud had been committed. 
 
 27. Provided always, that nothing in this Act contained shall be 
 deemed to interfere with any rule or jurisdiction of courts of equity in 
 refusing relief on the ground of acquiescence or otherwise to any 
 person whose right to bring a suit may not be barred by virtue of this 
 Act. 
 
 28. When a mortgagee shall have obtained the possession or receipt of 
 the profits of any land, or the receipt of any rent, comprised in his mort- 
 gage, the mortgagor, or any person claiming through him, shall not bring a 
 suit to redeem the mortgage but within twenty years next after the time at 
 which the mortgagee obtained such possession or receipt, unless in the 
 meantime an acTcnowledgment of the title of the mortgagor or of his right 
 of redemption shall have been given to the mortgagor, or some person 
 claiming his estate, or to the agent of such mortgagor or person, in writing 
 signed by the mortgagee or the person claiming through him ; and in such 
 case no such suit shall be brought but ivithin twenty years next after the 
 time at ichich such acknowledgment, or the last of such acknowledgments if 
 more than one, 'was given ; and when there shall be more than one mort- 
 gagor, or more than one person claiming through the mortgagor or mort- 
 gagors, such acknoivledgment, 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 v)here there shall be more than one 
 mortgagee, or more than one person claiming the estate or interest of the 
 mortgagee or mortgagees, such acknowledgment, signed by one or more of 
 such mortgagees or persons, shall be effectual only as against the party or 
 parties signing as aforesaid, and the person or persons claiming any part 
 of the mortgage money or land or rent by, from, or under him or them., and 
 any person or persons entitled to any estate or estates, interest or interests, 
 to take effect after or in defeasance of his or their estate or estates, 
 interest or interests, and shall not operate to gire 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 tvhich 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. 
 
 29. Provided always, that it shall be lawful for any archbishop, 
 bishop, dean, prebendary, parson, vicar, master of hospital, or other 
 spiritual or eleemosynary corporation sole, to make an entry or distress 
 or to bring an action or suit to recover any land or rent within such
 
 APPENDIX. 
 
 441 
 
 period as hereinafter is mentioned next after the time at which the 
 right of such corporation sole, or of his predecessor, to make such 
 entry or distress or bring such action or suit shall first have accrued ; 
 (that is to say,) the period during which two persons in succession 
 shall have held the office or benefice in respect whereof such land or 
 rent shall be claimed, and six years after a third person shall have 
 been appointed thereto, if the 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 the 
 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 beyond the determination 
 of such period. 
 
 30. No pei'son shall bring any quare impedit or other action or 
 any suit to enforce a right to present to or bestow any church, 
 vicarage, or other ecclesiastical benefice, as the patron thereof, after 
 the expiration of such j^eriod as hereinafter is mentioned ; (that is to 
 say,) the period during which three clerks in succession shall have 
 held the same, all of whom shall have obtained possession thereof 
 adversely to the right of presentation or gift of such person, or of 
 some person through whom he claims, if the times of such incum- 
 bencies taken together shall amount to the full period of sixty years ; 
 and if the times of such incumbencies shall not together amount to the 
 full period of sixty years, then after the expiration of such further 
 time as with the times of such incumbencies will make up the full 
 period of sixty years. 
 
 31. Provided always, that when on the avoidance, after a clerk 
 shall have obtained possession of an ecclesiastical benefice adversely to 
 the right of presentation or gift of the ])atfon thereof, a clerk shall be 
 presented or collated thereto by his Majesty or the ordinary by reason 
 of a lapse, such last-mentioned clerk shall be deemed to have obtained 
 possession adversely to the right of presentation or gift of such j^atron 
 as aforesaid ; but when a clerk shall havii been presented Ijy his 
 ]Maje.sty upon the avoidance of a benefice in consequence of the incum- 
 bent thereof having been made a bishop, the incumbency of such clerk 
 shall, for the purposes of this Act, be deemo.I a continuation of the 
 incumbency of th(! clerk so made bishop. 
 
 32. Iji the construction of this Act every p(;rson claiming a right 
 t() present to or bestow any ecclesiastical benefice, as patron thereof, 
 l)y virtue of any estati;, interest, or right which the owner of an estate 
 tail in thi; advowson might have l)an'ed, shall be (hnsnied to be a 
 person claiming through thci person (mtithid to such (estate tail, and 
 the right to l)riiig any (|uar(; impedit, action or suit, shall be limited 
 accordingly. 
 
 ecclesiastical 
 or eleemosy- 
 uary corpora- 
 tions sole but 
 within two 
 incumbenciea 
 and six years 
 after, or sixty 
 years. 
 
 Xo advowson 
 to be ro- 
 
 [p. 14.] 
 
 covered but 
 witliin tliree 
 incumbencies 
 or sixty years. 
 
 Incumbencies 
 after lapse to 
 be reckoned in 
 
 [p. U.] 
 
 the period, 
 but not in- 
 cumbencies 
 after promo- 
 tions to 
 bisiioprics. 
 
 Persons 
 claimiiif; an 
 
 [p. 14.] 
 
 advowson in 
 remainder, 
 etc., lifter nil 
 estiiln tail 
 shall be
 
 442 
 
 APPENDIX. 
 
 deemed 
 persons 
 claiming- 
 
 [p. 14.] 
 
 through 
 tenant in tail. 
 
 No advowson 
 to be re- 
 covered after 
 one liundred 
 years. 
 
 At <he end of 
 any period of 
 
 [p. IIG.] 
 
 limitation the 
 right of the 
 party out of 
 possession 
 shall be 
 extinguished. 
 Keceipt of 
 [p. 96.] 
 
 rent to be 
 deemed re- 
 ceipt of profits. 
 
 Real and 
 mixed actions 
 abolished 
 after the 31st 
 December, 
 18:54; 
 
 33. Provided always, that no person shall bring any quare impedit 
 or other action or any suit to enforce a right to present to or bestow- 
 any ecclesiastical benefice, as the patron thereof, after the expiration 
 of one hundred years from the time at which a clerk shall have obtained 
 possession of such benefice adversely to the right of presentation or gift 
 of such person, or of some person through whom he claims, or of some 
 person entitled to some preceding estate or interest, or undivided share 
 or alternate right of presentation or gift, held or derived under the 
 same title, unless a clerk shall subsequently have obtained possession 
 of such benefice on the presentation or gift of the person so claiming, 
 or of some person through whom he claims, or of some other person 
 entitled in respect of an estate, share, or right held or derived under 
 the same title. 
 
 34. At the determination of the period limited by this Act to any 
 person for making an entry or distress, or bringing any writ of quare 
 impedit or other action or suit, t he righ t and title of such person to the 
 land, rent, or advowson, for the recovery whereof such entry, distress, 
 action or suit respectively might have been made or brought within 
 such period, sha ll be cxtiiiguislu'd. 
 
 35. The receipt of the rent payable by any tenant from year to 
 year, or other lessee, shall, as again.st such lessee or any person claiming 
 under him (but subject to the lease), be deemed to be the receipt of 
 the profits of the land for the purposes of this Act. 
 
 36. No writ of right patent, writ of right quia dominus remisit 
 curiam, writ of right in capite, writ of right in London, writ of right 
 close, writ of right de rationabili parte, writ of right of advowson, writ of 
 right upon disclaimer, writ de rationabilibus divisis, writ of right of 
 ward, writ de consuetudinibus et servitiis, writ of cessavit, writ 
 of escheat, writ of quo jure, writ of secta ad molendinum, writ de 
 essendo quietum de theolonio, writ of ne injuste vexes, writ of mesne, 
 writ of quod permittat, writ of formedon in descender, in remainder, or 
 in reverter, writ of assize of novel disseisin, nuisance, darrein-present- 
 ment, juris utrum, or mort d'ancestor, writ of entry sur disseisin, in 
 the quibus, in the per, in the per and cui, or in the post, writ of entry 
 sur intrusion, writ of entry sur alienation dum fuit non compos mentis, 
 dum fuit infra setatem, dum fuit in prisona, ad communem legem, in 
 casu proviso, in consimili casu, cui in vita, sur cui in vita, cui ante 
 divortium, or sur cui ante divortium, writ of entry sur abatement, writ 
 of entry quare ejecit infra terminum, or ad terminum qui pi-aeteriit, or 
 causa matrimonii prrelocuti, writ of aiel, besaiel, tresaiel, cosinage, or 
 nuper obiit, writ of waste, writ of partition, writ of disceit, writ of 
 quod ei deforceat, writ of covenant real, writ of warrantia chartsB, writ 
 of curia claudenda, or writ per quae servitia, and no other action, real 
 or mixed (except a writ of right of dower, or writ of dower unde nihil 
 habet, or a quare impedit, or an ejectment), and no plaint in the nature 
 of any such writ or action (except a plaint for freebench or dower),
 
 APPENDIX. 
 
 443 
 
 shall be brought after the thirty-first day of December one thousand 
 eight hundred and thirty-four (a). 
 
 37. Provided always, that when, on the said thirty-first day of 
 December one thousand eight hundred and thirty-four, any person who 
 shall not have a right of entry to any land shall be entitled to main- 
 tain any such writ or action as aforesaid in respect of such land, such 
 Avrit or action may be brought at any time before the first day of June 
 one thousand eight hundred and thirty-five in case the same might 
 have been brought if this Act had not been made, notwithstanding the 
 period of twenty years hereinbefore limited shall have expired (a). 
 
 38. Pro\dded also, that when, on the said first day of June one 
 thousand eight hundred and thirty-five, any person whose right of 
 entry to any land shall have been taken away by any descent cast, dis- 
 
 * continuance, or warranty, might maintain any such writ or action as 
 aforesaid in respect of such land, such writ or action may be brought 
 after the said first day of June one thousand eight hundred and thirty- 
 five, but only within the period during which by virtue of the provisions 
 of this Act an entry might have been made upon the same land by the 
 person bringing such writ or action if his right of entry had not been 
 so taken away («). 
 
 39. No descent cast, discontinuance, or warranty which may happen 
 or be made shall toll or defeat any right of entry or action for the 
 recovery of land. 
 
 40. After the said thirty-first day of December one thousand eight 
 hundred and thirty-three no action or suit or other proceeding shall he 
 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 ivithin twenty y ears next after a present 
 right to receive the same shall have accrued to some person capable of 
 giving a discharge for or release of the same, unless in the meantime some 
 part of the principal money, or some interest thereon, shall have been paid, 
 or some acknowledgment of the right thereto shall have been given in 
 writing signed by the person by whom the same shall he payable, or his 
 agent, to the person entitled thereto, cr his agent ; and in such case no such 
 action or suit or proceeding shall be brought but ivithin twenty years after 
 such payment or acknowledgment, or the last of such payments or acJcnow- 
 ledgmcnts if more than one, was given. 
 
 41. No arrears of dower, nor any damages on account of such 
 arrears, shall be recovered or obtained by any action or suit for a 
 longer period than six years next before the commencement of such 
 action or suit. 
 
 42. No arrears of rent or of interest in respect of any sum of money 
 charged \i]><>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 '<j,phj to crinliii'i siilta: repealed, 3S »t 39 Vict. c. 06 
 (S.L. ll.> 
 
 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
 
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