Since 3 & 4 as to land. Even in the case of mere personal rights, independent of their affecting any land or any interest therein, or any rent, the effect would be the same. For if, said Lord Ellenborough (1), speaking of personal actions, the Statutes of Limitation extinguish the right, the remedy could not be revived by a subsequent promise. The Irish Statute of Limitations (m), as to the redemption of mortgages, and as to judgment debts, after the expiration of the period of limitation also extinguished the right, and therefore a mere admission or recognition of the right made after such expiration had not the effect of reviving or restoring the right (n). None of the other Statutes of Limitation, either in England or Ireland, had an effect corresponding to that of the statutes just noticed, but merely suspended the remedy and left the right unaffected, and consequently the mere recognition or admission of it at any period, after the expiration of the period of limitation, had the effect of restoring the remedy and enabled the claimant to assert his right, whether it was to real property or to personal (o). The 3 & 4 Will. 4, c. 27, however, as already Will. 4, c. 27, shown (p), not only bars the remedy but extinguishes the right and title of a claimant who does not assert them before the period of limitation applicable has expired (q), and a conveyance by the claimant after that period has expired would be, as a transfer of the property, without any operation (r). The right and title of a claimant of land, therefore, being extinguished after the expiration of the period of limitation, cannot be revived by a mere acknowledgment (1) 13 East, 450. (n) Brady v. Fitzgibbon, 1 (0) Davenport v. Tyrrel, 1 W. Bl. 675; Coop. 170; Hunt v. Bourne, 2 Salk. 422; 13 East, 450; Higgins v. Scott, 2 B. & Ad. 413. (p) Vide ante, Chap. VI. (r) See 17 Q. B. 372. made after that expiration. Therefore a present recognition of a right or title to land or rent which has existed more than twenty years before the recognition is made, but not recognized within that time, is not such an acknowledgment as will satisfy the requisites of the 14th sect. of the 3 & 4 Will. 4, c. 27 (s). A mere constructive delivery It may be doubted whether the mere delivery of the Whether by possession by the possessor to the person whose title has mere delivery of possession. been extinguished will be sufficient to divest the title of the possessor acquired by such possessor, and revest the property in such person. of the possession will not have that effect (t). Either a feoffment, of which, although accompanied by a deed, the essential and operative part is the livery of seisin, and which until the 7 & 8 Vict. c. 76, might be evidenced by a mere writing signed by the feoffor, but since that statute must be evidenced by deed, or some other instrument adapted to convey the property, would seem to be the only effectual mode of divesting the title of the one and revesting it in the other. The payment by a tenant for life of an equity of Right of mortredemption, or the admission in writing of such tenant gagees. of the payment of part of the mortgage money or of interest thereon (u), after the lapse of twenty years, without any such payment or acknowledgment, will not deprive the remainderman of the benefit of the statute, or, in other words, will not revive against him the right of the mortgagee (x). As an acknowledgment under the section 14 of the As to rents. 3 & 4 Will. 4, c. 27, of a title to a rent must, as in the case of land, be made before the period of limitation applicable has expired (y), and as the right and title to (8) Hobson v. Burns, 13 Ir. L. R. 286. (t) Jack v. Walsh, 4 Ir. L. R. 254. (u) 1 Vict. c. 28. (x) Gregson v. Hindley, 10 Jur. 383. See also Seager v. Aston, 3 Jur., N. S. 484; Fordham v. Wallis, 10 Hare, 217. (y) Vide supra, p. 570. the rent when it is not received during that period, and all arrears of it (z), are extinguished (a), and since, in general, a rent can be created by deed only, a mere acknowledgment made after that period has expired will not have the effect of reviving or restoring such title. If, said Coleridge, J. (b), after nonpayment of a rent for twenty years, a series of fresh payments were made, might not the old rent be said to exist without a fresh grant? The only mode, however, in which the rent can be restored would seem to be, either by an express re-grant by deed, or by the uninterrupted receipt of a corresponding rent for a period of twenty years uncontradicted and unexplained, from which receipt a grant of such rent might be presumed (c). The practical effect of this presumption is shown by the decision in Read v. Brookman (d), that it was competent to plead a right to an incorporeal hereditament by deed, and excuse profert of the deed by alleging it to have been lost by time and accident. A usual mode of claiming title to an incorporeal hereditament therefore was to allege a feigned grant within the time of legal memory, from some owner of the land or other person capable of making one, to some tenant or person capable of receiving it, setting forth the names of the supposed parties to the document (e), with the excuse for profert that the document had been lost by time and accident. On a traverse of the grant, the uninterrupted usage of the right for twenty years was held cogent evidence of the existence of the grant. This was termed making title by "non-existing grant " (f). (z) James v. Salter, 3 Bing. N. C. 544. (a) Sect. 34. (b) Hanks v. Palling, 6 El. & B. 659, 668. (c) See Bealey v. Shaw, 6 East, 208; Balston v. Benstead, 1 Camp. 463; Wright v. Howard, 1 Sim. & S. 203; Campbell v. Wilson, 8 (e) Hendy v. Stevenson, 10 East, 55. (f) Best's Princ. of Ev. s. 377. Loss of a deed or instrument is, unquestionably, a ground upon which a court of equity will exercise jurisdiction; but has always exercised it with great caution and under great guards; for the court has required that the bill of the plaintiff shall be accompanied by an affidavit, in order to satisfy it that the case is one which it may safely entertain (g). If, said Lord Eldon (h), an ejectment were now brought upon a devise contained in a lost will, considering the extent to which courts of law have proceeded in assuming jurisdiction where profert cannot be made, I am not quite sure whether they would not go further to relieve than they would have done half a century ago. Lord Hardwicke has recorded his opinion that the time had not and never would come, when a court of law could venture to dispense with profert, upon the alleged loss of an instrument: yet that principle is altered. The legislature has now abolished both profert and oyer in pleadings in courts of common law (i). The concurrent jurisdiction of equity, in cases of this sort, however, is not af fected (k). A rent claimed by virtue of a lost grant would be, Remedies for primâ facie, a rent-seck, and the remedy for the re covery of such a rent may be here considered. it rents-seck. At common law, a rent with a power to distrain for At law. may be claimed by prescription (7), but is excepted out of the Prescription Act (m). At common law, until the reign of George the Second, a freehold rent-seck issuing out of land, created either by will or by deed, was, until seisin-which created the remedy-given by the terre-tenant, who in law is the tenant of the freehold, and not by a tenant for years only, remediless. After seisin in law of such (g) See Whitchurch v. Golding, 2 P. W. 541; 3 Atk. 132; Hook v. Dorman, 1 Sim. & S. 227; Barker v. Ray, 2 Russ. 63, 73. (h) Barker v. Ray, supra. (i) 15 & 16 Vict. c. 76, s. 55. B. C. C. 218. (1) Co. Litt. 114 a, 144 a. After 4 Geo. 2, c. 28. Whether by action of debt. a rent an avowry, and after seisin in deed an assise, might be maintained for it (7). When created by deed without any covenant for payment, the rent might be recovered by a writ of annuity (m), but if so recovered it could not afterwards be recovered by assize, and vice versâ (n). In the reign of George the Second the remedy by distress was given for the recovery of such rents (0). But in the reign of William the Fourth (p), the remedy by writ of assize or other real action was abolished. An action of debt for such a rent, during its continuance, whether created by will (q), or by a mere grant (r), could not formerly (s), not even after the statute of 8 Anne, c. 14, for that statute applies as between lessor and lessee only (t), and cannot now, notwithstanding the Common Law Procedure Act, 1852 (u), be maintained, because, in general, except by a writ of annuity (x), the law will not permit a real injury to be remedied by an action merely personal (y). In Varley v. Leigh (z), Pollock, C. B., however, expressed an opinion that there must be a remedy at law for such a rent in lieu of the writ of assise now abolished, and that an action of debt would be the proper remedy; but Rolfe, B., dissented from that view, and expressed himself dissatisfied with the argu |