3 & 4 Will. 4, c. 27, s. 43. Act to extend to the spiritual courts. Recovery of legacies. XI. LIMITS OF THE ACT. Spiritual Courts. 43. After the said thirty-first day of December, one thousand eight hundred and thirty-three, 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 law or in equity (q). (q) The mode of recovering personal legacies in the ecclesiastical courts is stated in 3 Hagg. Eccl. R. 161, 162. A legatee cannot maintain a suit in the ecclesiastical court to recover his legacy when there are only equitable and not legal assets. (Barker v. May, 9 B. & C. 489; 4 M. & R. 386.) No action at law lies against an executor for a pecuniary legacy; (Deeks v. Strutt, 5 T. R. 690; see Mayor of Southampton v. Graves, 8 T. R. 593; Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289, contrà;) nor against an administrator to recover a distributive share; nor against his executor, although he has promised to pay. (Jones v. Tanner, 7 B. & C. 542; 1 M. & R. 420. See Johnson v. Johnson, 3 Bos. & P. 169.) But an action at law lies against an executor to recover a specific chattel bequeathed after his assent to the bequest. (Doe v. Guy, 3 East, 120; 4 Esp. 154; Paramour v. Yardley, Plowd. 539; Westwick v. Wyer, 4 Rep. 28 b.) And under peculiar circumstances, an action of assumpsit for money had and received, and on an account stated, was held to be maintainable by a residuary legatee against an executor for the plaintiff's share of the residue, "on the ground of a certain sum being received and retained to the plaintiff's use;" the defendant had ceased to hold the money in his character of executor. (Hart v. Minors, 2 Cr. & M. 700.) The plaintiff and three others being residuary legatees, the defendants, as the executors named in the will, accounted with them; and having paid to the latter the respective sums due to them thereon, took from them and from the plaintiff a release, but did not pay the plaintiff his share, he having consented to allow it to remain in their hands: it was held, that the money, not being retained by the defendants in their character of executors, the plaintiff was entitled to recover it in an action at law. (Gregory v. Harman, 1 M. & P. 209; 3 C. & P. 205; The Corporation of Clergymen's Sons v. Swainson, 1 Ves. sen. 75; Reech v. Kennegal, 1b. 123; Rogers v. Soutten, 2 Keen, 598; Bothe v. Crampton, Cro. Jac. 612; Davis v. Reyner, 2 Lev. 3; Goring v. Goring, Yelv. 10; Rann v. Hughes, 7 T. R. 350, n.; Childs v. Monins, 2 Brod. & Bing. 460; 5 B. Moore, 282; Bradley v. Heath, 3 Sim. 543; Holland v. Clark, 1 Y. & Coll. N. C. 151. See Wms. on Executors, 1513-1518, 3rd ed.) In an action against executors upon an account stated for a legacy, it is competent to the plaintiff to impeach any particular item or items on the credit side of the account. (Rose v. Savory, 2 Scott, 199; 1 Hodges, 269; Gorten v. Dyson, 1 Brod. & B. 219; Moert v. Moessard, 1 M. & P. 8; Wasney v. Earnshaw, 4 Tyrw. 806; Roper v. Holland, 3 Ad. & Ell. 99; 4 Nev. & M. 868.) A testator devised lands in fee, after the determination of certain life estates, to A., B. and C., as tenants in common, subject to and charged with the payment of 2001., which he thereby bequeathed to and to be equally divided among the children of his niece. A. and B., during the life of one of the tenants for life, granted their reversion in two undivided third parts of the lands to mortgagees for 500 years: it was held, that an action of debt could not be maintained against the termors for a share of the 2007. so bequeathed. (Braithwaite v. Skinner, 5 Mees. & W. 313; 3 Jur. 1054.) SCOTLAND AND IRELAND. 44. Provided always, and be it further enacted, that this act shall not extend to Scotland; and shall not, so far as it relates to any right to permit to or bestow any church, vicarage or other ecclesiastical benefice, extend to Ireland (r). par (r) The stat. 6 & 7 Vict. c. 54, which was passed on the 10th August, 1843, recites the 30th, 31st, 32nd and 34th sections of 3 & 4 Will. 4, c. 27 :Sect. 1. "And whereas the hereinbefore in part recited act, save in so far as it relates to any such right as last aforesaid, is already in force in Ireland, and it is expedient to extend to Ireland the whole of the provisions of that act; be it therefore enacted, that after the 1st day of January, 1844, the several clauses and enactments in the said act passed in the session of liament held in the 3rd and 4th years of the reign of his late majesty King William the Fourth contained, and hereinbefore recited, relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice (the clause thereof providing that the said act so far as it relates to any such right shall not extend to Ireland, always excepted), shall extend and apply to Ireland, and that as fully and effectually as if the same clauses and enactments were here repeated, substituting for the said date of the 31st day of December, 1833, the said date of the 1st day of January, 1844." Certain words in those provisions to be similarly interpreted. as to the periods limited for bringing any quare impedit or other action. The 2nd section, after reciting part of the 1st section of 3 & 4 Will. 4, c. 27, as to the meaning of "person through whom another claims," "person," "number," " gender," enacted, "that the same words and expressions shall in this act be similarly interpreted, extended and applied." (See ante, p. 136.) Sect. 3. "And whereas doubts have been entertained whether the several Removing doubts periods by the said act limited for bringing 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, apply to the case of a bishop claiming to have right to collate to or bestow any ecclesiastical benefice in his diocese, and it is expedient that all such doubts should be removed; be it therefore enacted, that the several periods limited by the said act or by this act for bringing any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, shall apply to the case of any bishop claiming a right as patron to collate to or bestow any ecclesiastical benefice, and that such right shall be extinguished in the same manner and at the same periods as the right of any other patron to present to or bestow any ecclesiastical benefice: provided always, that nothing herein contained shall be deemed to affect the right of any bishop to collate to any ecclesiastical benefice by reason of lapse." Provisions for the Sect. 4. "And whereas by an act passed in the Irish parliament in the session held in the 17th and 18th years of the reign of King Charles the Second, intituled 'An Act for the explaining of some Doubts arising upon an Act, intituled "An Act for the better Execution of his Majesty's gracious Declaration for the Settlement of his Kingdom of Ireland, and Satisfaction of the several Interests of Adventurers, Soldiers and other his Subjects there;" and for making some Alterations of and Additions unto the said Act for the more speedy and effectual Settlement of the said Kingdom,' it was enacted, that certain advowsons and rights of patronage, and the rights of nomination, presentation or collation to or donation of certain ecclesiastical benefices or promotions, which had been forfeited by certain Irish Papists or Popish recusants, should vest, remain and continue in his majesty, his heirs and successors, until such Irish Papist or Popish recusant, or the right heir of such Papist or recusant, should come to church and receive the sacrament according to the rites of the church of England, and from and after such conformity should be again revested in the person so conforming and his heirs: and whereas by an act passed in the 2nd year of the reign of her majesty Queen Anne, intituled An Act to prevent the 2 Anne, c. 6. further Growth of Popery,' it was enacted, that where any Papists, or per sons professing the Popish religion, did or should claim, enjoy or possess any advowson or advowsons of churches, right of patronage or presentation to any ecclesiastical benefice, or where any Protestant or Protestants did or should hold, claim, enjoy or possess any advowson or advowsons of churches, or right of patronage or presentation to any ecclesiastical benefice or benefices, in trust or for the use and benefit of any Papist or Papists whatsoever, that every such advowson and right of patronage or presentation should be thereby ipso facto vested in her majesty, her heirs and successors, according to such estates as such Papist had in the same, until such time as such Papist, or the heir or heirs of such Papist, should take a certain oath and subscribe a certain declaration and abjuration prescribed by and set forth in the said act, and should conform to the church of Ireland as by law established; be it enacted, that no possession under any presentation by the crown, or collation by the ordinary, which may have taken place by reason of the said act of the 18th year of the reign of his majesty King Charles the second, or of the said act of the 2nd year of the reign of her majesty Queen Anne, during the nonconformity of any such patron professing the Roman Catholic religion, shall be deemed an adverse possession within the meaning of this act against the right of any such patron or his heirs, or any person claiming by, through or under him or them; provided, that in all cases in which any patron shall have conformed to the said united church within sixty years before the passing of this act, or shall hereafter conform thereto, such patron, or any person claiming by, through or under him, shall not be barred from bringing any such quare impedit or other action or suit, for the purpose in the said first herein recited act mentioned, before the expiration of sixty years, to commence and be computed from the day on which such patron shall have so conformed as aforesaid." Sect. 5. "Provided always, and be it enacted, that this act shall not be prejudicial or available to or for any plaintiff or defendant in any action or suit already commenced, or on or before the said first day of January, 1845, to be commenced, relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland." The stat. 7 & 8 Vict. c. 27, recites the 6 & 7 Vict. c. 54, s. 5:-" And whereas doubts have arisen as to whether under the said hereinbefore recited provision the time therein adverted to for limiting any action or suit relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland was to expire on the 1st day of January, 1844, or on the 1st day of January, 1845: and whereas it is necessary to remove such doubts, and to explain and amend the said hereinbefore recited provisions of the said recited act, and to further amend the said recited act:" it is declared and enacted, "that the said recited act shall not be prejudicial to or available for any plaintiff or defendant in any action or suit already commenced, or on or before the said 1st day of January, 1845, to be commenced, relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland." Sect. 2. "And be it enacted by the authority aforesaid, that if and when any action or suit relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland already commenced, or which shall hereafter be commenced within the limitations prescribed by the said recited act or this act, shall become abated by the death or marriage of any party thereto, it shall and may be lawful to and for the plaintiff or plaintiffs therein, or the heir at law or the personal representative of the plaintiff or plaintiffs therein, according to the alleged estate or title of such plaintiff or plaintiffs in respect of the subject matter of such actions or suits, or for the person or persons claiming to be entitled in remainder or reversion expectant upon the estate of such plaintiff or plaintiffs to the right to present to or bestow the church, vicarage, or other ecclesiastical benefice in Ireland for which such action or suit shall have been so commenced, to bring a new action to enforce his, her or their right to present to or bestow such church, vicarage or other ecclesiastical benefice in Ireland, provided such new actions shall be commenced within twelve calendar months from the abatement of such preceding action or suit, anything in the said recited acts or either of them or in this act contained notwithstanding." (See 8 & 9 Vict. c. 51.) XII. OF THE LIMITATION OF ACTIONS ON SPECIALTIES. The third section of the 3 & 4 Will. 4, c. 42, enacts, "that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt or scire facias upon any recognizance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copyhold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of parliament, shall be commenced and sued within the time and limitation hereinafter expressed, and not after; that is to say, the said actions of debt for rent upon any indenture of demise, or covenant, or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after: provided that nothing herein contained shall extend to any action given by any statute where the time for bringing such action is or shall be by any statute specially limited." As to Ireland see 16 & 17 Vict. c. 113, s. 20. To an action of debt on a bond, dated more than twenty years before the commencement of the action, the defendant pleaded that the debt and cause of action in the declaration mentioned did not accrue at any time within twenty years next before the commencement of the suit; the plaintiff replied that the debt and cause of action did so accrue. At the trial the bond was produced, and appeared to be a post obit bond, and it was proved that the party upon whose death the sum secured was made payable died within twenty years: it was held, that the plaintiff was entitled to the verdict. (Tuckey v. Hawkins, 4 C. B. 655. See Barber v. Shore, 1 Jebb & S. 610, ante, p. 252.) An action of covenant for rent in arrear may be brought within the time limited by 3 & 4 Will. 4, c. 42, s. 3, and is not limited to six years by the 42nd section of 3 & 4 Will. 4, c. 27. Tindal, C. J., after observing that the stat. 3 & 4 Will. 4, c. 27, was not proposed to include rents reserved on leases, (see ante, pp. 154, 155,) proceeded, "however, it is not necessary to give an opinion on the point; for, on comparing the 42nd section of 3 & 4 Will. 4, c. 27, with the 3rd section of 3 & 4 Will. 4, c. 42, if it was intended in the former to exclude rent on an indenture of lease, the latter statute has now excluded that species of rent from the operation of the former. The first act received the royal assent on the 24th July, 1833, and was to come in force on the 1st January, 1834; the second received the royal assent on the 14th August, 1833, and was to come in force on the 1st June, 1833. The legislature, therefore, by the second statute, made a new and distinct enactment to come into operation before the other. If there be anything in the second irreconcilable with the first, it would be a strange proceeding that the legislature should designedly pass one law to be in force for some time in one year, and a different law on the same subject matter to come in force the next. But it seems to me that there is nothing conflicting in the two. The words of the 3rd section of 3 & 4 Will. 4, c. 42, are not merely negative words but import an affirmative also, not merely that a plaintiff may not sue for rent accruing more than ten years before, but that he may sue for all that time to come for rent in arrear at the time the act passed. Therefore here is in August, 1833, a legislative declaration that actions may be brought for rent in all that period; compare that with section 42, in 3 & 4 Will. 4, c. 27, if that section is to be taken as comprehending similar causes of action. If the 42nd section of 3 & 4 Will. 4, c. 27, is a general enactment, the subsequent declaration that an action of covenant may be commenced during a longer period is virtually an exception out of 3 & 4 Will. 4, c. 42, s. 3. Limitation of action of debt on specialties, &c. Twenty years' arrears of rent and annuity secured by deed may be recovered. 3 & 4 Will. 4, c. 42, s. 3. the former: we are to reconcile the two enactments if it be possible, but if it be not, the affirmative and negative cannot co-exist, and the action of covenant must be taken as an exception; therefore, without affecting the clause in the first statute further than is necessary to give effect to the second, we decide that the plea of six years' limitation of the cause of action is bad." (Paget v. Foley, 2 Bing. N. C. 679; 3 Scott, 135. See Paddon v. Bartlett, 3 Ad. & Ell. 895; 5 Nev. & M. 383; Wilson v. Jackson, 2 Ir. Law R. 1; ante, p. 158.) In an action of debt on a bond, the defendant, after craving oyer of the bond and condition, which was for payment of money pursuant to the covenant in an indenture of even date with the bond, and for performance of the covenants, &c., contained therein on the part of the obligors, pleaded that no cause of action in respect of the said writing obligatory, by reason of any breach of the said condition, or of the covenants, &c., in the said indenture contained, had accrued at any time within twenty years next before the commencement of the suit. It was held, that the plea was bad; first, for not setting out the indenture, as it might contain impossible covenants, in which case the bond would be single, and the plea to the breaches only would be bad; secondly, in not properly confessing a breach of the condition. It seems that the more proper form of plea would have been to set out the indenture, to aver performance of all that was performed within twenty years, to admit the breaches beyond twenty years, and to those breaches to plead the Statute of Limitations. (Sanders v. Coward, 15 Mees. & W. 48.) Parke, B., in giving judgment, observed, “In construing the 3rd section of the 3 & 4 Will. 4, c. 42, it seems to us that the limitation in an action on bond, of 'twenty years from the cause of action or suit,' is not to be confined to twenty years from the first breach of a condition to do various things, any more than it would be confined to that period from the first breach of a covenant to do various things, in an action of covenant. Although, on the first breach of the condition of a bond, the obligee may sue the obligor, and have judgment under the statute of 8 & 9 Will. 3, c. 11, as a security of a higher nature for future breaches, he is not bound to pursue that course. He may waive the right of action on the bond in respect of the first breach, or any number of breaches, and be contented with the specialty security only for future breaches, and sue afterwards on a subsequent forfeiture, and assign that for a breach. If it were not so the inconvenience would be considerable, and the value of a security by bond diminished; and it is to be observed, that the limitation in the statute is not from the cause of action first accrued on the bond, but generally from the cause of action; and this construction leaves the obligee much in the same situation as before the act, except that the statute gives to the lapse of time the effect of an absolute bar to the remedy, instead of its being used as evidence of payment or performance of the condition, as it would have been before. If before the statute there had been a bond for the payment of twenty annual instalments, the lapse of twenty years from the time fixed for the payment of each instalment would have been good evidence to raise a presumption of the due payment of each instalment, but the right to recover the instalments due within twenty years would be unaffected." (Sanders v. Coward, 15 Mees. & W. 56, 57. See Higgs v. Mortimer, 1 Exch. R. 711; post.) It is admitted that, since Sanders v. Coward, 15 Mees. & W. 48, and Blair v. Ormond, 17 Q. B. 423, where a bond is conditioned for the performance of a series of acts at stated times, though there may have been a forfeiture, by reason of the non-performance of the first act in that series, yet if default be made in the performance of subsequent acts, a new 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." (Per Lord Campbell, C. J., Amott v. Holden, 18 Q. B. 603, 604.) An action of debt upon a covenant in an indenture granting an annuity or rent-charge to issue out of land, may be brought within the period of twenty years limited by 3 & 4 Will. 4, c. 42, s. 3, and is not barred by 3 & 4 Will. 4, c. 27, s. 42, which limits the recovery of arrears of rent within six years. (Strachan v. Thomas, 4 P. & Dav. 229; 12 Ad. & Ell. 558.) |