PART II. SPECIALTIES. CHAPTER I. PERSONAL ACTIONS NOT WITHIN THE STATUTE OF JAMES. CH. I. Actions for THERE were many actions for the recovery of money PART II. which, as seen above, were not included in the statute of James. As to these there was no limitation in England, except so far as the doctrine of presumption of payment applied, until by 3 & 4 Wm. IV. c. 42, s. 3, it was enacted as follows: "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 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 an indenture of demise or covenant or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within twenty years after the cause of such actions or the re covery of money not in the statute of James. 3 & 4 W. IV. c. 42, s. 3. CH. I. PART II. suits but not after; the said actions by the party grieved within two years after the cause of such actions or suits, but not after; and the said other actions 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 any such action is or shall be by any statute specially limited.” 37 & 38 s. 8. 3 & 4 W. IV. c. 27, s. 42. It was also enacted by sect. 8 of 37 & 38 Vict. c. 57, in substitution for sect. 40 of 3 & 4 Wm. IV. c. 27, as follows: "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 twelve 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 twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given." By the 42nd section of 3 & 4 Wm. IV. c. 27 it was enacted as follows:— "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 any 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.” PART II. CH. I. The provisions of 3 & 4 Wm. IV. c. 27, and 37 & 38 Irish Acts. Vict. c. 57, extend to Ireland; those of 3 & 4 Wm. IV. c. 42 do not; but by the 32nd, 33rd, 34th, 35th and 36th sections of 3 & 4 Vict. c. 105, commonly known as Pigot's Act, passed for the amendment of the law in Ireland, provisions were enacted almost identical with those contained in the 3rd, 4th, 5th, 6th and 7th sections of 3 & 4 Wm. IV. c. 42. These sections of Pigot's Act were repealed by the Irish Common Law Procedure Act, 1853 (1), so far as relates to actions in the superior common law courts in Ireland, and provisions in most respects similar were substituted for them (2). In the last-mentioned statute (3) actions for copyhold fines are omitted and actions upon judgments, statutes staple and statutes merchant are added to the number of actions to which the limitation of twenty years is attached. Although there was no statutable limitation in England with respect to specialties before the Act 3 & 4 Wm. IV. c. 42, in Ireland a statute was passed as early as the reign of CH. I. PART II. George I. (1) relating to specialties and redemption suits. The effect of this statute was to make the presumption of payment arising from the lapse of twenty years without part payment or acknowledgment an absolute statutable bar to actions at law and suits in equity for the recovery of all debts in the nature of specialties including judgment debts. This Act seems to have been treated as superseded by 3 & 4 Wm. IV. c. 27 and Pigot's Act; and by 7 & 8 Vict. c. 90, s. 39, it was enacted that the "said later Acts" (meaning the Acts 3 & 4 Wm. IV. c. 27, and Pigot's Act) were and should be deemed to be a repeal of 8 Geo. I. c. 4, Ir. The sections of the repealed Act 8 Geo. I. c. 4, Ir., relating to specialties were for a second time expressly repealed by the Irish Common Law Procedure Act, 1853. What actions are within 3 & 4 W. IV. and 37 & 38 Vict. c. 57, s. 8. Almost all the cases of personal actions for the recovery of money, which had not been provided for by the statute of James I., are included in sect. 3 of 3 & 4 Wm. IV. c. 42, c. 27, s. 42; 3 & 4 sect. 8 of 37 & 38 Vict. c. 57, or sect. 42 of 3 & 4 Wm. IV. W. IV. c. 27. Thus in the words "bond or other specialty" in c. 42, s. 3, sect. 3 of 3 & 4 Wm. IV. c. 42, are included all specialties from the highest to the lowest, and therefore the liability of a shareholder under a deed of settlement for his proportion of the losses of the company was held to be within that section, because such liability arose from an agreement under seal (2); and the same section would apply to all actions grounded upon a statute or charter which are not brought within the provisions of the statute of James I. in the manner stated in the first chapter. An action for a mandamus, however, as seen above (3), is not included in any statute. In an action brought in England on a bond executed in India, it has been held that, although in India there is no difference as regards the period of limitation between specialty debts and simple contract (1) 8 G. I. c. 4, Ir. (2) Re Portsmouth Banking Co., L. R. 2 Eq. 167. (3) P. 13. Ward v. Lowndes, 1 E. & E. 940, 956; 29 L. J. Q. B. 40. CH. I. debts, yet such an action in England is governed by PART II. 3 & 4 Wm. IV. c. 42, and the period of limitation is twenty years (1). within 3 & 4 W. IV. c. 27; 37 & 3&4 The Acts 3 & 4 Wm. IV. c. 27, and 37 & 38 Vict. Cases c. 57, relate for the most part to the recovery of land, but the 8th section of 37 & 38 Vict. c. 57, and the 42nd section of 3 & 4 Wm. IV. c. 27, are concerned with the recovery 38 Vict. c. not of land but money (2), and it is necessary to mention 57, and them in this chapter because some of their provisions conflict with those of the 3rd section of 3 & 4 Wm. IV. c. 42. This inconsistency arises from the fact that a sum of money charged on land may at the same time be secured by a covenant or other specialty. As the time of limitation of 3 & 4 Wm. IV. c. 42, s. 3, and 37 & 38 Vict. c. 57, s. 8, is different, it is important to consider the bearing of the two enactments upon one another. This question is discussed below (3). w. IV. c. 42. and With respect to arrears of rent and interest, the time Arrears of limited by 3 & 4 Wm. IV. c. 42, s. 3, and c. 27, s. 42, is interest also widely different, and the question has arisen in various cases which enactment is to prevail. This question is also discussed below (4), and the general result will be found to be that every remedy for the recovery of rent or interest upon money charged on land is within the words of sect. 42 of 3 & 4 Wm. IV. c. 27, but that those remedies which are enumerated in sect. 3 of 3 & 4 Wm. IV. c. 42, are excepted out of the operation of the former enactment. pro- Penal By sect. 3 of 3 & 4 Wm. IV. C. 42 a limitation is vided for actions brought to recover statutory penalties actions. by the party grieved. The effect of this provision will be discussed in a later part of this work, when the whole subject of penal actions is considered (5). (1) The Alliance Bank of Simla v. Carey, 5 C. P. D. 429. (2) Doe d. Jones v. Williams, 5 A. & E. 296. (3) Part III. Chap. I. (4) Part III. Chap. IV. (5) Part VI. L |