3 & 4 Will. 4, c. 42, s. 3.

Courts of equity and the statute.

Remedy for infants, femes

coverts, &c.

Absence of defendants beyond seas

provided for.

Disabilities.

cause of action arises upon each default, and the statute runs from that. The obligee, therefore, is not prevented by the statute from suing in respect of breaches committed more than twenty years after the first breach, if he has chosen to waive the previous breaches" (see Higgs v. Mortimer, 1 Exch. 711). If a bond with a penalty were given to secure a duty which is to be performed during a period of twelve years, the bond would be forfeited by a delinquency in the first year, but the obligee might elect not to act on it until the delinquency in the twelfth year (per Bramwell, B., 7 L. T. 792). Where the breach is a continuing breach, a fresh cause of action arises at every moment of the time during which the breach continues (Maddock v. Mallet, 12 Ir. Ch. R. 193).

The breach of a covenant for good right to convey, occasioned by the existence of a right of way, is not a continuing breach. Time ran from the delivery of the deed (Turner v. Moon, 1901, 2 Ch. 828; Spoor v. Green, L. R. 9 Ex. 110. See, however, the judgment of Kelly, C. B., L. R. 9 Ex. 116).

In the case of a present debt and covenant to pay on demand, a demand is not a condition precedent to an action; secus, in the case of a covenant to pay a collateral sum on demand; and time runs accordingly (Re Brown, 1893, 2 Ch. 300).

A deed of settlement of a company exonerated the transferor of shares from all liabilities subsequently to transfer. In winding-up time ran from the date of the transfer (Re Portsmouth Banking Co., 2 Eq. 167).

Courts of equity adopted many of the provisions of this statute (Hyde v. Price, 8 Sim. 578). In administration suits specialty debts were held barred under it (Spickernell v. Hotham, Kay, 669). But where a settlor had constituted himself a trustee of a covenant, time was no bar (Stone v. Stone, 5 Ch. 74). A covenant to pay a mortgage debt was held to remain in force for more than twenty years by reason of the pendency of a trust (Bennett v. Cooper, 9 Beav. 252). See, further, the note as to courts of equity and the statutes of limitation, p. 251, post.

4. That if any person or persons that is, or are, or shall be entitled to any such action or suit, or to such scire facias, is, 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 commence the same within such times after their coming to or being of full age, discovert, of sound memory, or returned from beyond the seas, as other persons having no such impediment should, according to the provisions of this act, have done; and that 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 liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas.

This provision as to disabilities has been altered by Merc. Law Amdt. Act, 1856, s. 10 (p. 244, post), which enacts that the absence beyond seas of the person entitled to the action shall be no disability. As to the meaning of "beyond seas," see sect. 7 of this statute (p. 221, post). See further the cases quoted under Limitation Act, 1623, s. 7 (p. 232, post), the law as to disabilities under both these sections being now the same. In cases within M. W. P. Act, 1882, s. 1, sub-s. 2, coverture has ceased

to be a disability (Lowe v. Fox, 15 Q. B. Div. 676; Weldon v. Neal, 51 3 & 4 Will. 4, L. T. 289).

c. 42, s. 5.

5. That if any acknowledgment shall have been made, either Proviso in by writing signed by the party liable by virtue of such inden- case of acture, specialty or recognizance, or his agent, or by part pay- ment in knowledgment or part satisfaction on account of any principal or interest writing, or being then due thereon, it shall and may be lawful for the by part person or persons entitled to such actions to bring his or their payment. 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; 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 plea of this statute (see 16 & 17 Vict. c. 113, s. 23, as to Ireland).

(1.) Acknowledgment by Writing...219.

(2.) Acknowledgment by Payment...219.

(1)

The acknowledgment under this section need not be made to the Acknowledgperson entitled, or amount to a promise to pay; and, therefore, the ad- ment by mission of a bond debt, contained in an answer of the executors of the writing. obligor in a suit to which the obligee was not a party, was held sufficient (Moodie v. Bannister, 4 Drew. 433; 28 L. J. Ch. 881). A conveyance on trust to sell and pay off mortgages was held not an acknowledgment within this section of a particular mortgage (Howcutt v. Bonner, 3 Exch. 491; see Forsyth v. Bristowe, 8 Exch. 716). As to pleading acknowledgments under this section, see Kempe v. Gibbon (9 Q. B. 609; 12 Q. B. 662). See further the cases as to acknowledgments by payment under this

section.

The case of disability at the time of the acknowledgment existing on the part of the person entitled to the action, or on the part of the person making the acknowledgment, is provided for at the end of this section. See the joint effect of this provision and Merc. Law Amdt. Act, 1856, s. 11, explained Darb. & Bos. Stat. Lim. 161.

(2)

The 5th section does not specify by whom the part payment is to be Acknowledg made; but Lord Cranworth, C., thought it must be made by a party ment by interested, for the legislature could not mean to give any right against payment. the debtors by the mere act of a stranger (Roddam v. Morley, 1 De G. & J. 18). The payment of interest to a mortgagee by the assignee of the equity of redemption was payment by the agent of the mortgagor within the section (Forsyth v. Bristowe, 8 Exch. 716; compare Newbould v. Smith, 33 Ch. Div. 127, quoted ante, p. 197); so payment by the tenant for life of an equity of redemption (Dibb v. Walker, 1893, 2 Ch. 429). Payments made by a receiver in a suit, but which were not authorized by the order appointing him, were held not to take the case out of this

3 & 4 Will. 4, c. 42, s. 5.

Where several liable.

What amounts to payment.

Same hand to pay and receive.

statute (Whitley v. Lowe, 25 Beav. 421; 2 De G. & J. 704; see Re Hale, Lilley v. Foad, 1899, 2 Ch. 107). Where the same bond secured payment of different sums to different persons, payment of one sum was held no acknowledgment in respect of the other sum (Ashlin v. Lee, 23 W. R. 458). Where a devisee for life paid interest on a specialty of his testator's, in which the heirs were bound, this was sufficient to preserve the right of action not only against the payor, but also against all remaindermen (Roddam v. Morley, 1 De G. & J. 1). "If the payment is made by one only of several persons liable, as, for instance, by a person having only a life interest as devisee, who is affected by the payment? Does it operate against the party only by whom the payment is made, or does it affect all the other parties liable? Does it merely enable the creditor to sue the party by whom the payment was made, or does it set free the action generally? I have 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 the payment, but also against all other persons liable on the specialty" (per Lord Cranworth, Ib. 18). Payment of interest on a simple contract debt by a devisee for life of the debtor's real estate binds the remaindermen (Hollingshead v. Webster, 37 Ch. D. 660). See also as to a tenant for life's payment, Barclay v. Owen (60 L. T. 222); and Dibb v. Walker (1893, 2 Ch. 429).

Where a person indebted on a specialty dies having left personal estate, and real estate devised for payment of debts, and also real estate devised beneficially, it was said by Kindersley, V.-C., "There are three parties, each of whom is liable to the claims of a specialty creditor-the executor in respect of the personalty, the trustees in respect of the real estate devised for payment of debts, and the beneficial devisee in respect of the real estate beneficially devised. If any one of these parties makes the payment or gives the acknowledgment, it is a payment or acknowledgment by the party liable by virtue of the specialty" (Coope v. Cresswell, 2 Eq. 117, in which case the V.-C. held, that payment of interest on a specialty debt of a testator by his personal representatives who were also trustees of real estate devised for payment of debts, took the debt out of the statute as against a beneficial devisee). This decision was reversed by Lord Chelmsford (2 Ch. 112), as to which decision, see Re England, Steward v. England (1895, 2 Ch. 109, 110; and Astbury v. Astbury (1898, 2 Ch. 119), where Stirling, J., held that an acknowledgment which might have bound the debtor's personal estate, did not bind his real estate.

In Coope v. Cresswell (2 Ch. 126), Lord Chelmsford said he was unable to concur in the reasoning in Roddam v. Morley. Roddam v. Morley was subsequently followed by Bacon, V.-C., in Pears v. Laing (12 Eq. 41; see Barclay v. Owen, 60 L. T. 222), and by Chitty, J., in Hollingshead v. Webster (37 Ch. D. 651), and Dibb v. Walker (1893, 2 Ch. 429), where payment of interest by tenant for life under a settlement of an equity of redemption kept alive the remedy on the original mortgagor's covenant. A similar effect was given to payment by a devisee of the mortgaged land (Leahy v. De Moleyns, 1896, 1 I. R. 206).

As regards acknowledgments by payment of principal or interest in the case of several parties being liable, it has now been provided by Merc. Law Amdt. Act, 1856, s. 14, that payments by one co-debtor shall not prevent time running under this statute in favour of another co-debtor (see post, p. 246).

Where a settlement (under which the husband took the first life interest) comprised stock covenanted to be transferred by him, and the stock was not transferred, time ran in favour of the husband from the execution of the settlement. It could not be assumed that a person had been paying himself the interest of a non-existing fund (Spickernell v. Hotham, Kay, 669; see also Stone v. Stone, 5 Ch. 74). But where a settled fund, the income of which the settlor was entitled to receive until insolvency, was lent to him, and judgment was entered against him to secure repayment, time did not run against the judgment until the insolvency (Re Keay,

c. 42, s. 5.

I. R. 3 Eq. 639). And where a settlement (under which the husband took 3 & 4 Will. 4, the first life interest) comprised money secured by a bond of the husband time did not run against the obligee until his death, he being the person who was both bound to pay the interest on the bond, and entitled to receive the interest under the settlement (Mills v. Borthwick, 35 L. J. Ch. 31; 13 W. R. 707). So where the wife took the first life interest, and she lived with her husband in amity (Re Dixon, Heynes v. Dixon, 1900, 2 Ch. 561). The principle was applied where the same person was entitled to receive the rents of mortgaged land and the interest on the mortgage (Topham v. Booth, 35 Ch. D. 607), and also where the husband was mortgagor and the wife mortgagee (Re Hawes, Burchell v. Hawes, 62 L. J. Ch. 463; see Re Dixon, sup.). Where money settled to the separate use of a wife was lent to her husband, and she, with his consent, gave formal receipts for the income, but no money passed, this was payment of interest within the section (Amos v. Smith, 1 H. & C. 238; see Re Dixon, Heynes v. Dixon, sup.). See Re England, Steward v. England, 1895, 2 Ch. 820, where the money was charged on land; and also the cases quoted ante, pp. 174, 194, 212. A payment upon one of several judgments obtained upon one joint and several bond will prevent recovery upon another of such judgments from being barred (Re Kingston, I. R. 3 Eq. 485).

A bond conditioned for the replacing of stock in specie is not such an instrument as comes within the 5th section of Civil Proc. Act, 1833. The payment of sums of money in lieu of dividends which would have been payable if the stock had remained in the name of the obligee, is not payment of interest, neither is any sum of money thereby acknowledged to be due (Blair v. Ormond, 17 Q. B. 436, 437).

As to the proof of payment by indorsements on a bond, see 1 Taylor, Ev. 605, 611, 8th ed.

ment reversed.

6. And nevertheless be it enacted, if in any of the said The limitation actions judgment be given for the plaintiff, and the same be after judg reversed by error, or a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment the judgment be given against the plaintiff, that he take nothing by his plaint, writ or bill, or if in any of the said actions the defendant shall be outlawed, and shall after reverse the outlawry, 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, or outlawry reversed, and not after (16 & 17 Vict. c. 113, s. 21, Ireland).

See Tynte v. The Queen (7 Q. B. 216). Outlawry has been abolished in civil cases by Civil Proc. Acts Repeal Act, 1856, s. 3.

the United

7. That no part of the United Kingdom of Great Britain and No part of Ireland, nor the islands of Man, Guernsey, Jersey, Alderney Kingdom, &c. and Sark, nor any islands adjacent to any of them, being part to be deemed of the dominions of his Majesty, shall be deemed to be beyond beyond the the seas within the meaning of this act, or of the act passed in the meaning the 21st year of the reign of King James the First, intituled of this act. "An Act for Limitation of Actions, and for avoiding of Suits in Law."

The act 4 Anne, c. 16, s. 19, was omitted from this section, and the consequence was to make Ireland a place beyond the seas within the meaning of 4 Anne, c. 16, s. 19, notwithstanding the Act of Union (Lane

seas within

3 & 4 Will. 4, c. 42, s. 7.

Beyond the seas within

the Irish acts.

v. Bennett, 1 M. & W. 70; Battersby v. Kirk, 2 Bing. N. C. 603). But see now Merc. Law Amdt. Act, 1856, s. 12, post, p. 245.

No part of the United Kingdom, 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, are to be deemed to be beyond the seas within the meaning of the act 3 & 4 Vict. c. 105, or of the Irish Statute of Limitations, 10 Car. 1, st. 2, c. 6 (3 & 4 Vict. c. 105, s. 36, which is repealed by 16 & 17 Vict. c. 113, s. 3).

V. OF THE LIMITATION OF ACTIONS ON SIMPLE

CONTRACT DEBTS, ETC.

THE LIMITATION ACT, 1623, ss. 3, 4, 7...

THE STATUTE OF FRAUDS AMENDMENT ACT, 1828, ss. 1, 3, 4

PAGE 222

233

Limitation of

certain personal actions.

THE LIMITATION ACT, 1623.

21 JAC. I. c. 16, ss. 3, 4, 7.

§3. Limitation of Actions on simple Contracts, and certain Personal Actions...222.

§ 4. Limitation after Judgment reversed...231.

$7. Disabilities...232.

3. That all actions of trespass quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin for taking away of goods and cattle, all actions of account, and upon the case, other than for such accounts as concern the trade of merchandize 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 rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them which shall be sued or brought at any time after the end of this present session of parliament, shall be commenced and sued within the time and limitation hereafter expressed, and not after, (that is to say) the said actions upon the case (other than for 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 fregit, within three years next after the end of this present session of parliament, or within six years next after the cause of such actions or suit, and not after; and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within one year next after the end of this present session of parliament, or within four years next after the cause of such actions or suit, and not after; and the said 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.