1854.

Nov. 18.

By indenture, dated the 27th

of Oct., 1827,

between the defendant of the one part,

EJECTMENT

JAYNE v. HUGHES.

TMENT to recover possession of a copyhold messuage and premises within the manor of Wentsland, in the county of Monmouth. The writ was dated the 9th of Feb

and the plain- ruary, 1854.

tiff of the other part,

after reciting

that certain copyhold premises were surrendered

to the plaintiff for securing

repayment of

3007. by him

that day lent

tiff covenant

ed, on repay

ment of that

sum and inter

est on the

27th of April,

At the trial, before Crompton, J., at the last Monmouth Assizes, it appeared that the defendant Hughes, being seised in fee of the premises in question, on the 17th of November, 1821, surrendered them in fee to Theophilus Morgan, who was admitted. Theophilus Morgan having died, his son and heir, Francis Morgan, was admitted on the 27th of October, 1827, and he, on the same day, by to the defend the direction and consent of Hughes, surrendered the preant, the plain-mises in fee to Jayne, the plaintiff, who was admitted. By indenture, dated the 27th of October, 1827, between Phillip Hughes, the defendant, of the one part, and John Jayne, the plaintiff, of the other part, reciting the surrender by Francis Morgan to Jayne; also reciting that such surrender was made for the purpose of securing the repayment to Jayne of the sum of 300l. by him that day lent to Hughes with interest; also reciting that Jayne, at the reinterest at the quest of Hughes, had consented and agreed to execute time appoint those presents, for the purpose of shewing the object of the ment. There recited surrender, and that Hughes had consented to enter was also a sti- into covenants for payment of the principal sum and interest: It was witnessed, that, in consideration of the preplaintiff might mises, it was thereby declared by and between the said parties, &c. (Then followed a covenant by Jayne, on payment of the 300l. and interest on the 27th of April, 1828,

1828, to surrender the

premises to the defendant; and the de

fendant covenanted to pay the 3007. and

ed for pay

pulation, that, in default of payment, the

take posses

sion of the

premises.

The deed was,

in fact, executed on the

23rd of August, 1834. No principal, interest, or rent had ever been paid by the defendant. In February, 1854, the plaintiff brought ejectment:-Held, that the deed was a sufficient acknowledgment, within the 3 & 4 Will. 4, c. 27, s. 14, of the plaintiff's title at the time of the execution of the deed, and consequently his right of entry was not barred.

to surrender the premises in fee to Hughes).—" And the said P. Hughes doth hereby covenant, promise, and agree with and to the said J. Jayne, his executors, administrators, and assigns, in manner following (that is to say) that he the said P. Hughes, his executors, &c., shall and will well and truly pay or cause to be paid unto the said J. Jayne, his executors, &c., the full and clear sum of 300l., with interest for the same after the rate, at the time, and in the manner in the proviso hereinbefore contained, appointed for payment thereof." There was also a stipulation, that, in case of default in payment of the principal sum or interest, it should be lawful for Jayne, his executors, administrators, or assigns, to enter and take possession of the premises. It was proved, that this indenture was, in fact, executed on the 23rd of August, 1834. No principal, interest, or rent, had ever been paid by the defendant. It was objected, on the part of the defendant, that the plaintiff's right of entry accrued in 1827; and that, as no interest or rent had been paid, and there was no acknowledgment of title in writing, the right of entry was barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27. It was submitted, on behalf of the plaintiff, that, the deed operated from the time of its execution in 1834, and was, therefore, a sufficient acknowledgment of title within the 14th section of that statute. The learned Judge directed a verdict for the plaintiff, reserving leave for the defendant to move to enter a verdict for him.

Gray moved, pursuant to the leave reserved (Nov. 3). -The deed in question is not a sufficient acknowledgment of title within the 3 & 4 Will. 4, c. 27; and even assuming it to be so, it is only an acknowledgment that the plaintiff had title at the date of the deed. By the 14th section of that statute it is provided: "That, when any acknowledgment of the title of the person entitled to any land or rent shall have been given to him or his

1854.

JAYNE

v.

HUGHES.

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 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 acknowledg
ments if more than one, was given." To satisfy that
enactment, the instrument must contain an express ac-
knowledgment that the person claiming has title. In
Doe d. Curzon v. Edmonds (a), a party in possession ad-
versely of land, on being applied to by the party claiming
title to pay rent, wrote as follows: "Although, if matters
were contested, I am of opinion that I should establish a
legal right to the premises, yet, under all circumstances, I
have made up my mind to accede to the proposal you
made of paying a moderate rent, on an agreement for a
term of twenty-one years."
." The bargain subsequently went
off, and no rent was paid or lease executed; and it was held,
that this letter was not an acknowledgment of title within
the 3 & 4 Will. 4, c. 27, s. 14. [Pollock, C. B.-The cove-
nant to pay the mortgage money is an admission of the
relation in which the parties stood at the time of the exe-
cution of the deed.] The covenant must be read as if
dated contemporaneously with the deed; and it is only an
acknowledgment of the plaintiff's title at that time. It is
consistent with the fact of the defendant being called upon
to execute such a covenant, that the title may in the mean-

(a) 6 M. & W. 295.

time have passed out of the plaintiff. [Pollock, C. B.— There is an admission of title in some one; then why not in the plaintiff? De non apparentibus et non existentibus eadem est ratio. Parke, B.-Suppose the deed had been without a date.] No doubt, in many cases, a deed operates only from the time of its execution: Shaw v. Kay (a); but for the purpose of an acknowledgment of title, it speaks from its date. If it were held, that, for all purposes, deeds only operate from the time of their execution, many titles, good on the face of them, would be in peril for want of a connecting link. As between the parties themselves, the date of a deed is matter of estoppel. Supposing the plaintiff to have surrendered the premises to another person before the execution of the deed, the defendant's covenant would be a valid covenant with the assignee.

Cur. adv. vult.

POLLOCK, C. B., now said-In the case of Jayne v. Hughes, we are of opinion that there ought to be no rule. The question was, whether a mortgage deed was a sufficient acknowledgment of the plaintiff's title within the 3 & 4 Will 4, c. 27, s. 14. The deed bore date the 27th of October, 1827, but was not in fact executed until the 23rd of August, 1834. No doubt, the effect of the covenant was to admit that at the moment anterior to the execution of the deed the plaintiff had title. If then the deed is to be construed as speaking from the time of its date, the plaintiff's right of entry was barred by the statute; but if, on the other hand, the deed is to be read as speaking from the time of its execution, then there was a sufficient acknowledgment of the plaintiff's title within the meaning of the statute. We are all of opinion that the deed must be taken to speak from the time of its execution. That is the

(a) 1 Exch. 412.

1854.

JAYNE

บ.

HUGHES.

1854.

JAYNE

V.

HUGHES.

plain interpretation of what was done by the parties. It is the same as if, on the day of the execution of the deed, a person had heard the defendant use the language contained in it.

Rule refused.

Nov. 20.

The Great
Northern

Railway Com

pany agreed with the plaintiffs to carry for them, at the rate of 170 tons a day, 30,000 tons of coal

from a certain

colliery to London, and to find wag. gons at the colliery, and haul them

from York to London, the York and Berwick Railway Company undertaking to haul the wag

gons from the colliery to York; and it was further agreed, that the contract was founded

on the basis that there should be no unreasonable detention of the waggons by the York

and Berwick

JOHNASSOHN and Another v. THE GREAT NORTHERN
RAILWAY COMPANY.

THE declaration stated, that, on the 23rd of November,
1853, by an agreement made by and between the plaintiffs
and the defendants, the defendants undertook and agreed
with the plaintiffs to carry for them, at the rate of one
train a day of about 170 tons, of six working days, from
the day and year aforesaid, 30,000 tons of coals at 20
hundred weight to the ton, from a certain colliery, called
the Usworth Colliery, to a place called King's Cross, and to
find waggons at the said colliery, and haul them when
filled from York to King's Cross; at 98. 7d. per ton, includ-
ing the use of defendants' waggons between York and the
colliery and the labour in London of dropping the coals
into barges, such barges to be provided by the plaintiffs
and placed by them under the defendants' coal drops over
the coal dock at King's Cross; the York and Berwick Com-
pany undertaking to haul the empty waggons from York to
the colliery, and from the colliery to York when filled with
coals, at the rate of 38. per ton; and the plaintiffs agreed
with the defendants to pay them the said price of 98. 7d.
per ton. And it was further agreed, that the contract was
founded on the basis, that there should be no unreasonable
detention of waggons, whether empty or full, between York

Company:-Held, that it was a condition precedent to the defendants' obligation to carry the coal, that there should be no unreasonable delay by the York and Berwick Company in hauling the waggons.