CH. I. Effect of 37 & 38 s. 8 on 3 & 4 W. IV. PART III. it was decided, after some conflict of authority, that the provisions of 3 & 4 Wm. IV. c. 27, s. 42 applied to the right to recover arrears out of the land, and 3 & 4 Wm. IV. c. 42, s. 3 to actions on the covenant (1). When the Real Property Limitation Act, 1874 (2) came Viet. c. 57, into operation, the period of limitation for the recovery of money charged on land or rent was reduced to twelve years, and as the provisions of 3 & 4 Wm. IV. c. 42, s. 3 remained unaltered, it became an important question whether personal actions to recover, under a covenant or other specialty, money charged on land must be brought within twelve years, the time mentioned in the 8th section of the Act of 1874, or might be brought at any time within twenty years, the period of limitation prescribed for actions on specialties by 3 & 4 Wm. IV. c. 42, s. 3. c. 42, s. 3. Covenant in mort It was decided by the Court of Appeal that the 8th gage deed. section of 37 & 38 Vict. c. 57 applies to an action on the covenant in a mortgage deed as well as to the remedy against the land (3). Following this decision, Fry, J., held that when a mortgage deed was secured by a collateral bond of the mortgagor, the right of action on the bond is barred by that section at the end of twelve years from the last acknowledgment or payment of interest (4). Collateral bond by sureties. Where an estate was mortgaged, and on the same day a bond was executed by two sureties to secure the mortgage debt, the mortgagor not being a party to the bond, it was held by the Court of Appeal that the remedy of the mortgagee against the sureties was not within the 8th section of 37 & 38 Vict. c. 57 (5). By a mortgage deed the mortgagor and a surety jointly and severally (1) See below, Part III. Ch. IV. (2) 37 & 38 Vict. c. 57. (3) Sutton v. Sutton, 22 Ch. D. 511. (4) Fearnside v. Flint, 22 Ch. D. 581. (5) In re Powers. Lindsell v. Phillips, 30 Ch. D. 291. CH. 1. covenanted for the repayment of the mortgage debt. It PART III. was held by Kay, J., and Bowen, L.J., that the section did not apply to an action on the covenant brought against the surety; Cotton, L.J., was of opinion that the section applied to an action against the surety as well as to one against the mortgagee (1). If the remedy against a surety remains unbarred after that against the mortgagor is barred, it is presumed that the surety is entitled to recover from the mortgagor as the principal debtor the amount which the surety may be compelled to pay in satisfaction of the debt. In Sutton v. Sutton (2) no reference was made by Jessel, M.R., or Bowen, L.J., to Hunter v. Nockolds (3) and the other cases decided on the construction of the 40th section of 3 & 4 Wm. IV. c. 27 in connection with the 3rd section of 3 & 4 Wm. IV. c. 42. Cotton, L.J., distinguished Hunter v. Nockolds from the case before him on the ground that 3 & 4 Wm. IV. c. 27 and 3 & 4 Wm. IV. c. 42 were passed in the same session of Parliament, while the section under discussion was part of a later enactment (4). The wording of the 9th section of the Real Property Limitation Act, 1874, with reference to the substitution of sect. 8 for the 40th section of 3 & 4 Wm. IV. c. 27 is so far as is material as follows: Vict. c. 57, s. 9. "All the provisions of the Act (3 & 4 Wm. IV. c. 27), 37 & 38 except those contained in the several sections thereof next hereinafter mentioned, shall remain in full force, and shall be construed together with this Act, and shall take effect as if the provisions herein before contained were substituted in such Act for the provisions contained in the sections thereof numbered two, five, sixteen, seventeen, twenty-three, twenty-eight, and forty respectively." PART III. CH. I. Judgments. In a recent case in (1) Ireland, Porter, M.R., treated the decision in Sutton v. Sutton as getting rid of the decision in Hunter v. Nockolds, and the two cases seem to be irreconcileable. By a lease made in 1859 mines were demised to the lessees, they yielding and paying certain dead rents and royalties, and yielding and paying a rent or royalty on minerals conveyed by the lessees, or by their authority, from other lands over the surface of the land, and the lessees covenanted to pay the rents and royalties reserved. In 1883 an action was brought to recover royalties in respect of minerals so conveyed since 1866. It was held by North, J., that these royalties were not secured on land, and were not therefore within 37 and 38 Vict. c. 57, s. 8, and therefore the lessors were entitled to recover all the arrears of royalties claimed (2). And it has been decided recently in Ireland (3) that sect. 8 of 37 and 38 Vict. c. 57 does not apply to an action for rent due under a covenant in an indenture of demise, that such an action is governed by sect. 20 of 16 and 17 Vict. c. 113 (corresponding to sect. 3 of 3 & 4 Wm. IV. c. 42), and that twenty years' arrears are recoverable. Judgments are not mentioned in the 3rd section of 3 and 4 Wm. IV. c. 42, and therefore the 40th section of 3 and 4 Wm. IV. c. 27 (now the 8th section of 37 and 38 Vict. c. 57) extends to all proceedings of whatever kind for enforcing them (4), including the writ of sci. fa. (5), and the proceedings substituted for that writ by the 129th section (now repealed) of the Common Law Procedure Act, 1852 (6), and the proceedings now in force under R. S. C., (1) In re Nugent's Trusts, 19 L. R. Ir. 147. (2) Darley v. Tennant, 53 L. T. 257. (3) Donegan v. Neill, 16 L. R. Ir. 309. (4) Henry v. Smith, 4 Ir. Eq. R. 502; 2 D. & War. 381; O'Hara v. Creagh, 3 Ir. Eq. R. 179; Long & Town, 65; Watson v. Birch, 15 Sim. 523; In re Lake's Trust, 63 L. T. 417. (5) Watters v. Lidwill, 9 Ir. L. R. 362. CH. I. 1883, 0. XLII. r. 23 (1) and including a petition in bank- PART III. ruptcy (2) or an administration action (3) brought by a judgment creditor. The right to issue execution on a judgment is limited to a much shorter time; this was, at common law, a year and a day, but was extended to six years by the 128th section of the Common Law Procedure Act, 1852 (4); that section is now repealed, but by R. S. C., 1883, O. XLII. r. 22 (5), as between the original parties to a judgment, execution may issue at any time within six years from the recovery of the judgment, and by r. 23, even after the expiration of the six years with the leave of the Court or a Judge. But execution cannot be issued on a judgment when more than twelve years have elapsed since the date of the judgment, and there has been no acknowledgment or payment in respect of the judgment debt (6). A garnishee, against whom proceedings under R. S. C. 1883, O. XLV. (7) have been taken, may be ordered to pay a judgment debt, although more than six years have elapsed since the judgment (8). The word judgment in sect. 8 of 37 and 38 Vict. c. 57 is not confined to a judgment which is a charge on the land, but refers to judgments generally (9). But judgment means, it would appear, judgment of an English Court; the limitation to an action on a judgment in a foreign court is that provided by the statute of James (10). A final decree of a Court of Equity for the payment of a specific sum of money was considered as included by (1) R. S. C. Ir. 1891, O. XLII. r. 25. (2) Ex parte Tynte. In re Tynte, 15 Ch. D. 125. (3) Sherwood v. Hannan, 17 L. R. Ir. 270; 18 L. R. Ir. 170. (4) 15 & 16 Vict. c. 76. (5) R. S. C. Ir. 1891, O. XLII. r. 24. (6) Jay v. Johnstone (1893), 1 Q. B. 25, 189; Evans v. O'Donnell, 18 L. R. Ir. 170. (7) R. S. C. Ir. 1891, O. XLV. (8) Fellows v. Thornton, 14 Q. B. D. 335. (9) Hebblethwaite v. Peever, 1892, 1 Q. B. 124; Jay v. Johnstone, (1893) 1 Q. B. 25, 189; Evans v. O'Donnell, 18 L. R. Ir. 170. Ex parte Tynte. In re Tynte, 15 Ch. D. 125. (10) Dupleix v. De Roven, 2 Vern. 540. See Decree in Equity. CH. I. PART III. analogy in the word judgment in sect. 40 of 3 & 4 Wm. IV. c. 27 (1). Now by the definition clause of the Judicature Act, 1873 (2), s. 100, judgment for the purposes of that Act includes decree (3). Vendor's lien. Legacies. The lien of a vendor for his purchase money was held (4) to be within sect. 40 of 3 & 4 Wm. IV. c. 27 (now sect. 8 of 37 & 38 Vict. c. 57). The words "any sum of money secured by any . lien or otherwise charged upon any land or rent," are comprehensive enough to embrace any kind of charge whatever (5). All legacies whether charged on land or not (6), including annuities if charged on personalty only (7), and also a residue bequeathed by will or share of such residue (8), are within the meaning of the word "legacy” in sect. 40 of 3 & 4 Wm. IV. c. 27 or sect. 8 of 37 & 38 Vict. c.57; and it would seem that after the time limited by these sections is expired, an action of trover for a specific legacy assented to by the executors would be barred, although the assent was so long withheld that the action would not be barred by the statute of James (9). An annuity given by will, which, though primarily payable out of personalty is also charged on realty, is not a legacy within sect. 8 of 37 & 38 Vict. c. 57, but is rent and is governed by sect. 1 of 37 & 38 Vict. c. 57, and not by sect. 8. If the instalments due under such an annuity are not paid for twelve years, the annuity is extinguished, although in the case of an (1) Dunne v. Doyle, 10 Ir. Ch. R. 502. (2) 36 & 37 Vict. c. 66. (3) See Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict. c. 57), s. 3. (4) Toft v. Stephenson, 7 Hare, 1; 1 De G. M. & G. 28; 21 L. J. Ch. 129. (5) See Hornsey Local Board v. Monarch Investment Building Society, 24 Q. B. Ď. 1. (6) Sheppard v. Duke, 9 Sim. 567. (7) In re Ashwell's Will, John. 112. See Dower v. Dower, 15 L. R. Ir. 264. (8) Prior v. Horniblow, 2 Y. & C. Exch. 200; Christian v. Devereux, 12 Sim. 264. See Adams v. Barry, 2 Coll. 285. (9) See Ch. II. infra. |