and on the authority of Litt., s. 314; Co. Litt. 196 b; see also Bradburne v. Botfield, 14 M. & W. 559; Wakefield v. Brown, 9 Q. B. 209; Keightley v. Watson, 3 Exch. 716; Magnay v. Edwards, 13 C. B. 479; Pugh v. Stringfield, 3 C. B., N. S. 2; 27 L. J., C. P. 34. It would seem that if the covenant, in such a lease, were to pay a money or other divisible rent, the tenants in common or their representatives might maintain separate actions for their respective shares of the rent. See Thompson v. Hakewell, ante, p. 683.

The Rules, 1883, O. xvi., as to nonjoinder and misjoinder of parties, will be found ante, pp. 90, 91. It seems that under them, objection to the nonjoinder of a plaintiff must be taken before the trial. See cases cited ante, p. 91, and Werderman v. Société Générale d' Electricité, 19 Ch. D. 246, C. A., where, however, the judgment of Jessel, M. R., was based (vide Id. 251) on an erroneous view of the practice at common law. Vide Thompson v. Hakewell, ante, p. 683.

The insertion of more covenantors than ought to be joined is now immaterial. Vide ante, pp. 90, 91. Where the action is on an implied covenant, persons who are parties to the deed, only for confirmation, with no legal estate (as where trustee and cestui que trust join as lessors), should not be joined as defendants. Smith v. Pocklington, 1 C. & J. 445. Whether, in an action by assignees of the reversion on express covenants, it is proper to join as co-plaintiffs persons who have no legal interest in the reversion, is a question not yet at rest; see Wakefield v. Brown, and Magnay v. Edwards, ante, p. 684.

At common law, no person not made, by name or description, a party to an indenture could sue thereon. Com. Dig. Fait, (D. 2); Chesterfield, &c. Colliery Co. v. Hawkins, 3 H. & C. 677; 34 L. J., Ex. 121; Kitchin v. Hawkins, L. R., 1 Q. B. 22. But now, on equitable principles, a person having a beneficial right thereunder, as cestui que trust, may sue thereon. Gandy v. Gandy, 30 Čh. D. 57, C. A. And by 8 & 9 Vict. c. 106, s. 5, under an indenture executed after 1st October, 1845, "the benefit of a condition or covenant, respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a party to the same indenture."

Covenant to pay money.] On a covenant by A. to pay B. a sum of money, A. is bound to seek out B. "if he be infra regnum Angliæ; but if he be not within the kingdom, he is not bound to seek him." Sheppard's Touchstone, cap. 6, p. 136. Where, however, the payment is to be at a certain place, a demand for payment must be made at that place. Thorn v. City Rice Mills, 40 Ch. D. 357; and see further post, p. 695. Where two places are named for payment, there is no default until the payee has selected the place, and made demand there. S. C.

Alteration of deed.] The cases relating to the alteration of deeds are collected with those relating to simple contracts, ante, pp. 631 et seq.

Fraud.] Vide ante, pp. 633 et seq.

Payment under covenant, &c.] Vide ante, p. 660.

Statutes of Limitation to actions on specialty.] The Stat. of Limitations, 21 Jac. 1, c. 16, ante, p. 646, did not apply to deeds or specialties. The statutes applying to such instruments are 3 & 4 Will. 4, cc. 27, 42; 19 & 20 Vict. c. 97; 37 & 38 Vict. c. 57; and 51 & 52 Vict. c. 57.

By the stat. 3 & 4 Will. 4, c. 27, the limitation of actions for rent, and

annuities and other periodical sums charged upon or payable out of land, is regulated.

By sect. 42,"no arrears of rent, or 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, 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 payable or his agent; provided, nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of land or in 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 incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years."

any

66

By the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), which (sect. 12) came into operation on 1st January, 1879, sect. 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 12 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 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 12 years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one was given." By sect. 10, "after the commencement of this Act" (supra), "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." See Hughes v. Coles, 27 Ch. D. 231; Warburton v. Stephens, 43 Ch. D. 39.

Sects. 8 (supra), and 9 replace 3 & 4 Will. 4, c. 27, s. 40, under which section the period of limitation was 20 years instead of 12.

By 23 & 24 Vict. c. 38, s. 13, the period of limitation for claims in respect of the share of the estate of an intestate, made against his personal representative, is 20 years. See Sly v. Blake, 29 Ch. D. 964; and Willis v. Earl Beauchamp, 11 P. D. 59, C. A.

By the Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 8, ante, pp. 647, 648, actions against trustees are now in some cases subject to statutes of limitations.

In 37 & 38 Vict. c. 57, s. 8, a "present right to receive" is not equivalent to a present right to enforce payment"; thus where improvement works have been done in a street, the cost of which is to be apportioned among the owners of the houses forming the street, and the apportioned shares are payable by the respective owners, and made a charge on their

houses, the statute runs although there has been no apportionment. Hornsey Local Board v. Monarch Investment Building Soc., 24 Q. B. D. 1, C. A.

A payment to prevent the barring by stat. 37 & 38 Vict. c. 57, 8. S, must be an acknowledgment, by the person making the payment, of his liability, and an admission of the title by the person to whom it is paid. Harlock v. Ashberry, 19 Ch. D. 539, C. A. It must be made by the person liable to pay principal or interest; payment of rent by the tenant of the mortgaged property to the mortgagee, in pursuance of notice by him, is no bar. S. C. See also Newbould v. Smith, 33 Ch. D. 127, C. A., affirmed on another ground in D. P. 14 Ap. Ca. 423. Assuming that sect. 8 applies to an action brought on a mortgage deed, against a surety, payment of interest by the mortgagor prevents the section operating as a bar. Allison v. Frisby, 43 Ch. D. 106, C. A. It is doubtful whether the section applies to such an action. Vide S. C.; Lindsell v. Phillips, 30 Ch. D. 291, C. A. Where rent out of which the interest of the mortgage ought to be paid is receivable by, and belongs to the same person who is entitled to the interest, the statute does not bar the mortgagee. Topham v. Booth, 35 Ch. D. 607, following Burrell v. Earl of Egremont, 7 Beav. 205. Where the receiver appointed by the court to receive the rents of three estates, A., B., and C., included in one mortgage, entered into possession of C. only, and out of the rents paid the mortgage interest, this was held to be in law payment by the mortgagor in respect of the mortgage debt, and prevented the statute from operating. Chinnery v. Evans, 11 H. L. C. 115; see also Cronin v. Dennehy, I. R., 3 C. L. 289, C. P.; and Lewin v. Wilson, 11 Ap. Ca. 639, P. C.

By the stat. 3 & 4 Will. 4, c. 42, the period of limitation in actions of debt on specialty, and in some other actions, is defined. By sect. 3, it is enacted, 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, shall be sued or brought within 20 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.

By sect. 4, provision is made for persons who are, at the time such cause of action accrued, within the age of 21 years, covert, of unsound mind, or beyond the seas; such person to be at liberty to bring the 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 provision of the Act, have done; and if any person against whom there shall be any such cause of action, shall be, at the time of cause of action accrued, beyond the seas, then the person entitled shall be at liberty to sue such person within the times before limited after the return of such person from beyond the seas. [As to the words in italics, vide 19 & 20 Vict. c. 97, post, p. 687.]

Sect. 5. Provided that, 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 then due thereon, it shall be lawful for the person entitled to such action to bring his action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment or part payment or part satisfaction; or in case the person 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 it, beyond the seas, then within twenty years after the disability shall have ceased, or the party shall have returned from beyond the seas, as the case may be; and the plaintiff in such action may, by way of replication, state such acknowledgment, and that the action was brought within the time aforesaid, in answer to a plea of this statute.

Sect. 7. No part of the United Kingdom, nor the Isle of Man, nor the Channel Islands, being dominions of the Queen, are to be deemed beyond seas within the meaning of this Act.

By 19 & 20 Vict. c. 97 (already cited ante, p. 650), s. 10, no person or persons entitled to any action limited by the Acts 3 & 4 Will. 4, c. 27, s. 42, or Id. c. 42, s. 3 (ante, pp. 685, 686), shall be entitled to any further time to sue by reason only that such person, or one or more of such persons, was or were beyond seas at the time when the cause accrued; and by sect. 11, in case of joint debtors, no further time is to be allowed for suing, by reason only that some of them were beyond seas when the cause accrued; but a judgment recovered in such case will not per se be a bar to an action against the absent debtor or debtors after their return. Sect. 14 (cited ante, p. 654), also provides that part payment by one debtor shall not deprive his co-debtor of the benefit of the statute.

By the J. Act, 1873, s. 25 (2), no claim by a cestui que trust against his trustee on an express trust is to be barred by any Statute of Limitations. See, however, 37 & 38 Vict. c. 57, s. 10, ante, p. 685, and 51 & 52 Vict. c. 59, s. 8, ante, p. 647. But although the claim is not barred by the statute, yet where there has been laches on the part of the plaintiff, his remedy may be limited to six years' arrears of interest. Thomson v. Eastwood, 2 Ap. Ca. 215, D. P. See further, ante, p. 647.

The effect of the 3 & 4 Will. 4, c. 27, s. 42, and c. 42, s. 3, together, is that no more than six years' arrears of rent or interest in respect of any sum charged on, or payable out of, any land or rent shall be recovered by way of distress, action, or suit, other than and except an action of covenant or debt on the specialty, in which case the limitation is twenty years. Paget v. Foley, 2 N. C. 679; Sims v. Thomas, 12 Ad. & E. 536; Grant v. Ellis, 9 M. & W. 113; Manning v. Phelps, 10 Exch. 59; 24 L. J., Ex. 62; Bowyer v. Woodman, L. R. 3 Eq. 313.

Now, by 37 & 38 Vict. c. 57, s. 8, ante, p. 685, in an action on the covenant in a mortgage deed, to pay the mortgage debt, the period of limitation has been reduced to twelve years; Sutton v. Sutton, 22 Ch. D. 511, C. A.; so in an action on a bond given as collateral security with a mortgage; Fearnside v. Flint, 22 Ch. D. 579; and so in an action on a judgment, even although a suggestion has, within twelve years, been entered on the roll under C. L. P. Act, 1852, s. 129. Ex pte. Tynte, 15 Ch. D. 125. But an action on a bond given by A. to C., conditioned to secure the payment of principal and interest due under B.'s mortgage to C., is not within sect. 8. Lindsell v. Phillips, 30 Ch. D. 291, C. A.

The 3 & 4 Will. 4, c. 27, s. 42 (ante, p. 685), does not affect the right of a mortgagee to retain out of the proceeds of the mortgaged property for more than six years' interest. Marshfield v. Hutchings, 34 Ch. D. 721.

As to what cases fall within the stat. 3 & 4 Will. 4, c. 42, s. 3, and what within stat. 21 Jac. 1, c. 16, s. 3, vide ante, p. 647.

As to the applicability of the Statutes of Limitations to breaches of covenants for title, vide post, p. 707.

Mere delay in enforcing a specialty debt for any period within twenty years affords no bar to its recovery. Collins v. Rhodes, 20 Ch. D. 230,

C. A.

A general replication never let in the subsequent promise, acknowledg

ment, or payment, as in actions for simple contract debts; for proof of a promise, not under seal, did not support the declaration; and if under seal, it was another and different cause of action. If there were a sufficient written acknowledgment within 3 & 4 Will. 4, c. 42, s. 5, it must have been specially replied. Kempe v. Gibbon, 9 Q. B. 609. And this is still the rule. It must be shown which of the three sorts of acknowledgments, viz., writing, payment, or satisfaction in part-is relied on. Forsyth v. Bristowe, 8 Exch. 347; 22 L. J., Ex. 70. The acknowledgment need not imply a promise, or be in itself a cause of action; Moodie v. Bannister, 4 Drew. 432; 28 L. J., Ch. 881; and an admission by the executors of the obligor in their answer to a suit inter alios is enough. Ib.

In an action of covenant for 4007. due on a mortgage deed, to which the plea of Stat. of Limitations was pleaded, plaintiff replied an acknowledgment within twenty years, and put in a deed of conveyance by defendant to trustees for payment of "all mortgages, debts, &c.," in which it was recited that the land was 66 subject to a mortgage to W. H. (plaintiff) for 4007. and interest:" held insufficient, because it did not acknowledge an existing debt, but only an outstanding mortgage. Howcutt v. Bonser, 3 Exch. 491. In an action by mortgagee against mortgagor for principal and interest, after the lapse of twenty years, defendant pleaded the statute, to which plaintiff replied an acknowledgment in writing, and also part payment, within twenty years: within twenty years the defendant had assigned his equity of redemption by a deed reciting payment of interest" up to the date thereof: "held, that this was evidence of payment within twenty years: held also, that payment of interest by the assignee after assignment, was payment by the " agent" of the defendant. Forsyth v. Bristowe, 8 Exch. 716; 22 L. J., Ex. 255. It was there considered that the acknowledgment, under sect. 5, need not be made to the creditor or agent, though that is required by stat. 3 & 4 Will. 4, c. 27, s. 42, and 37 & 38 Vict. c. 57, s. 8, ante, p. 685.

On a plea that the debt and cause of action" did not accure, infra, &c., pleaded to a bond, declared upon, without showing the condition, and issue thereon, it appeared at the trial to be a post obit bond, and that the cestui que vie died within twenty years: held, that the plaintiff was entitled to recover, for the real cause of action arises on the condition. Tuckey v. Hawkins, 4 C. B. 655. To a declaration on a bond, without stating the condition, which was for payment of an annuity, the defendant pleaded that the causes of action did not accrue within twenty years; on which plaintiff joined issue, and suggested breaches of non-payment of arrears within twenty years. On the trial, it appeared that there had been also breaches of condition twenty years ago, by payments of the annuities at irregular times, all of which, however, had been accepted by the plaintiff held, that a new cause of action arose on each breach of the condition; that the previous breaches had been waived by acceptance, and that the plaintiff was entitled to a verdict on the issue. Åmott v. Holden, 18 Q. B. 593; 22 L. J., Q. B. 14. A bond conditioned to replace stock is not within sect. 5 of the Act, which relates only to conditions for payment of money; therefore an acknowledgment that it was not replaced, and a payment within twenty years of money conditioned to be paid in lieu of dividends, if the stock should not be replaced, will not rebut the statute so far as relates to the breach of condition to replace. Blair v. Ormond, 17 Q. B. 423; 20 L. J., Q. B. 444. But the condition to pay periodically the money due in lieu of dividends, was held to continue in force, and that plaintiff was entitled to damages for a breach for non-payment within twenty years. S. C.