c. 27, s. 44.

Where the plaintiff's claim would, in the absence of renewal, be barred by 3 & 4 Will. 4, statute, the time for renewing a writ will not usually be enlarged, but the court has a discretion (Doyle v. Kaufmann, 3 Q. B. Div. 7, 340; Hewett v. Barr, 1891, 1 Q. B. 98). Where, however, the original writ was issued and renewed in proper time, the time for issuing a concurrent writ was enlarged, although the operation of the statute was thereby affected (Smalpage v. Tonge, 17 Q. B. Div. 644).

Where a writ was issued in due time in the Common Pleas to recover a debt, which writ was never served; and six months later (when, unless saved by the writ, the debt was barred) the plaintiff took out an administration summons in chancery; such summons was held barred, the writ not keeping the debt alive for the purpose of proceedings in another court (Manby v. Manby, 3 Ch. D. 101. Compare Hurst v. Hurst, 21 Ch. Div. 291, 295).

In the case of pleadings, a party cannot by amendment set up fresh Amendments. claims which since the writ have become barred by statute (Weldon v. Neal, 19 Q. B. Div. 394; see Steward v. North Metropolitan Co., 16 Q. B. Div. 556; Hudson v. Fernyhough, 61 L. T. 722). As to raising by amendment a case of concealed fraud to meet the statute, see Lawrance v. Norreys (39 Ch. Div. 235).

LIMITATIONS OF TIME IN PRACTICE.

With regard to appeals to the Court of Appeal, Ord. 58, r. 15, provides Limitations that no appeal from any interlocutory order or from any order, whether in practice. final or interlocutory, in any matter not being an action, shall, except by Appeals to leave, be brought after twenty-one days, and no other appeal shall, except the Court of by leave, be brought after one year. These times may be enlarged under Appeal. Ord. 64, r. 7, but not except under very special circumstances (Collins v. Paddington, 5 Q. B. Div. 368).

In the case of ordinary appeals to the House of Lords, Standing Order Appeals to No. 1 provides that the petition of appeal must be lodged within one year the House of from the date of the last decree, order, or judgment appealed from. In Lords. case, however, the appellant be an infant or feme covert or non compos mentis, or imprisoned, or out of Great Britain and Ireland, he may appeal within one year after the disability ceases; but no longer time than five years will be allowed. If this standing order can be suspended at all, it will only be on some extremely exceptional and extraordinary ground (Phillips v. Fothergill, 11 App. Cas. 466).

Appeals to the House of Lords in matrimonial causes must be from a decision of the Court of Appeal, and must be brought within one month after such decision if the House of Lords is then sitting; if not, within fourteen days after its next sitting (Cleaver v. Cleaver, 9 App. Cas. 631).

of Limita

With regard to pleading the Statute of Limitations in county courts, it Practice in is provided by 9 & 10 Vict. c. 95, s. 76, that no defendant in any court the county holden under the act shall be allowed to set off any debt or demand court as to claimed, or recoverable by him from the plaintiff, or to set up by way of the Statutes defence, and to claim and have the benefit of infancy, coverture, or any Statute of Limitations, or of his discharge under any statute relating to tion. bankrupts, or any act for relief of insolvent debtors, without the consent Notices to be of the plaintiff, unless such notice thereof as shall be directed by the rules given to the made for regulating the practice of the court shall have been given to the clerk of clerk of the court; and in every case in which the practice of the court county court of special shall require such notice to be given, the clerk of the court shall, as soon defences, who as conveniently may be after receiving such notice, communicate the same shall commuto the plaintiff by the post, or by causing the same to be delivered at his nicate the usual place of abode or business, but it shall not be necessary for the same to the defendant to prove on the trial that such notice was communicated by the plaintiff. plaintiff to the clerk.

The County Court Rules further provide that when a defendant intends

3 & 4 Will. 4, c. 27, s. 44.

to rely upon the defence of any Statute of Limitations, he shall file a notice stating thereon his name and address, together with a concise statement of such ground, five clear days before the return day. And the registrar shall, within twenty-four hours after receiving the same, transmit by post one copy of such notice and particulars to the plaintiff. But on non-compliance with the rule the judge has a power of adjournment (Ord. 10, r. 10). And further, that where a defendant intends to rely on the defence of any Statute of Limitations, he shall in his statement specify the date from which he alleges that the statute began to run (Ord. 10, r. 14; see also r. 18a).

The rules also provide for the issue of successive summonses to save the statute, viz., ordinary summonses (Ord. 7, r. 6), default summonses (Ord. 7, r. 29), judgment summonses (Ord. 25, r. 20).

Money

land and

end of twenty

shall be no

interest paid or acknowledgment in

II. LIMITATION OF TIME FOR THE RECOVERY OF MONEY CHARGED
ON LAND, LEGACIES, ARREARS OF DOWER, RENT, AND INTEREST

(3 & 4 WILL. 4, c. 27, ss. 40-42).

Charges and Legacies.

40. No action or suit or other proceeding shall be brought to charged upon recover any sum of money secured by any mortgage (a), judglegacies to be ment (b), or lien (c), or otherwise charged upon or payable out deemed satis of any land or rent, at law or in equity (d), or any legacy (e), fied at the but within twenty years next after a present right to receive the years, if there same shall have accrued to some person capable of giving a discharge for or release of the same (g), unless in the meantime some part of the principal money, or some interest thereon, shall have been paid (h), or some acknowledgment of the right writing in the 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 (i); and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one, was given.

meantime.

This section extended to

to estates of intestates.

The act 23 & 24 Vict. c. 38, s. 13, enacts, "that after the cases of claims thirty-first day of December, one thousand eight hundred and sixty, no suit or other proceeding shall be brought to recover the personal estate, or any share of the personal estate, of any person dying intestate, possessed by the legal personal representative of such intestate, but within twenty 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 such estate or share, or some interest in respect thereof, shall have been accounted for or paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit shall be brought, but

within twenty years after such accounting, payment, or acknow- 3 & 4 Will. 4, ledgment, or the last of such accountings, payments, or acknowledgments, if more than one was made or given" (f).

From the 1st of January, 1879, sect. 8 of 37 & 38 Vict. c. 57, has, by 37 & 38 Vict. sect. 9 of the same act, been substituted for sect. 40 of 3 & 4 Will. 4, c. 27. c. 57, s. 8. Sect. 8 of 37 & 38 Vict. c. 57, fixes the period of limitation for the recovery of money charged upon land and legacies at twelve years, but in other respects is similar to 3 & 4 Will. 4, c. 27, s. 40. The following note has reference to 3 & 4 Will. 4, c. 27, s. 40, and 23 & 24 Vict. c. 38, s. 13.

(a) A foreclosure action is not an action to recover the mortgage money MORTGAGES. within sect. 40, but is an action to recover land within sects. 2 and 24 of Foreclosure 3 & 4 Will. 4, c. 27 (Harlock v. Ashberry, 19 Ch. Div. 539; Wrixon v. actions. Vize, 3 Dru. & War. 104; Heath v. Pugh, 6 Q. B. Div. 345; 7 App. Cas. 235). For the older law, see Doe v. Williams (5 Ad. & El. 296); Dearman v. Wyche (9 Sim. 570); Du Vigier v. Lee (2 Ha. 326); Sinclair v. Jackson (17 Beav. 405). In the case of an equitable charge on a reversionary interest in land, the statute runs against the right to foreclose from the time when the interest falls into possession (Hugill v. Wilkinson, 38 Ch. D. 480). See under the old law Humble v. Humble, 24 Beav. 535; where a claim to have their debt raised, made by mortgagees holding a mortgage on a reversionary interest in real estate was barred by sect. 40.

Before 3 & 4 Will. 4, c. 27, if the mortgagor continued in possession, Presumption and there had been neither payment nor demand of any principal or of payment interest for twenty years, it was sufficient to raise the presumption of before 3 & 4 payment (1 Ch. R. 59, 105; Trash v. White, 3 Br. C. C. 289; Christopher Will. 4, c. 27. V. Sparke, 2 Jac. & W. 228; Cooke v. Soltau, 2 Sim. & Stu. 154; contra Joplis v. Baker, 2 Cox, 118; Leman v. Newnham, 1 Ves. sen. 51); but such presumption was liable to be rebutted by circumstances, and payment of interest on part of the debt was sufficient to keep the whole alive (Loftus v. Smith, 2 Sch. & Lef. 642).

(b) Sect. 40 applies to a case in which a judgment is sought to be en- JUDGMENTS. forced against the personal estate, as well as to a case in which it is sought to be enforced against the land of the debtor (Watson v. Birch, 15 Sim. 523; but see Henry v. Smith, 2 Dru. & War. 391). Proceedings to revive a judgment are also within this section (Watters v. Lidwill, 9 Ir. L. R. 362). A writ of scire facias, however, will issue to revive a judgment given as a collateral security for the payment of an annuity, although more than twenty years have elapsed since it was signed, if payments of the annuity within that time have been made (Williams v. Welch, 3 Dowl. & L. 565).

In Wall v. Walsh (I. R. 4 C. L. 103), it was held that a writ of revivor was not an action upon a judgment within sect. 20 of the C. L. P. Act, 1853 (Ireland), and that the period of limitation in such proceedings was still regulated by 3 & 4 Will. 4, c. 27, s. 40.

A scire facias on a judgment is not a mere continuation of a former suit, Scire facias. but creates a new right. A judgment was obtained in 1813. It was revived by scire facias, in 1828. A bill was filed in 1838, in the Court of Exchequer in Ireland, against the representatives of the debtor, praying for an account, and that the principal and interest due on the judgment might be satisfied out of the debtor's personal or real estate. On a plea of this statute it was held, that the scire facias created new rights, and that the plea was no bar to the suit (Farrell v. Gleeson, 11 Cl. & Fin. 702; see Farran v. Beresford, 10 Cl. & Fin. 319). Revivor of a judgment on a scire facias, although there be no change of parties, gives a new present right to the conusee so as to prevent the operation of this section (Re Blake, 2 Ir. Ch. R. 643; see Darb. & Bos. Stat. Lim. 123). Where an action of debt is brought on a judgment and judgment recovered, time runs against the former judgment from its own date, and not from the date of the latter judgment (Watters

v. Lidwill, 9 Ir. L. R. 362; Kealy v. Bodkin, Ib. 383). A revivor by Lands bound scire facias against the conusor of a judgment is sufficient to keep the by a revivor

S.

N

of judgment.

3 & 4 Will. 4, c. 27, s. 40.

Decree in equity.

Judgment on post obit bond, when time begins to run.

judgment alive as against the terre-tenants of an estate of which the conusor was seised at the date of the rendition of the judgment, but which he had conveyed away before the issuing of the scire facias (Murray v. Clarke, 4 Ir. C. L. R. 610). It seems, however, that a judgment of revivor will not revive the original judgment as against lands of the conusor which have come previous to the revivor into the hands of persons neither parties nor privies to the revivor; nor will a judgment of revivor against an executor revive the original judgment against the heir, or vice versâ (Kirkwood v. Lloyd, 11 Ir. Eq. R. 561; 12 Ir. Eq. R. 585; Re Bodkin, 12 Ir. Ch. R. 61). As to revivor against a person in possession of lands under a settlement, see Ryan v. Cambie (2 Ir. Eq. R. 328); Franks v. Mason (9 Ir. Eq. R. 358). It seems that the old writ of scire facias can still be issued since the Judicature Acts (Kipling v. Todd, 3 C. P. D. 350; Lindley's Company Law, 281, 5th ed.) For the proceedings to revive a judgment see 15 & 16 Vict. c. 76, ss. 128-134; and 19 & 20 Vict. c. 97, s. 10, by which a person entitled to revive a judgment, &c., is not entitled to any longer time for doing so by reason of his being beyond the seas, or imprisoned, at the time his right accrued.

A decree of a court of equity for the payment of a specific sum was included under judgment in this section (Dunne v. Doyle, 10 Ir. Ch. R. 502). The statute does not begin to run against a judgment entered on a post obit bond, until the death occurs upon which the bond is payable (Barber v. Shore, 1 Jebb & S. 610; Tuckey v. Hawkins, 4 C. B. 655; Gilman v. Chute, 11 Ir. L. R. 442; Kennedy v. Whaley, 12 Ir. L. R. 54). As to the running of time in the case of judgments entered on bonds, see Re Kingston, (I. R. 3 Eq. 485); Re Keay (I. R. 3 Eq. 659).

Presumption Before this statute it appears that if a judgment creditor had lain by for of satisfaction twenty years without any effort to enforce his judgment, and it had not of judgments been acknowledged by the debtor within that time, it was presumed to be before 3 & 4 satisfied (Peake's Ev. 25, n.; Coote on Mortgages, 151, 4th ed.; see 4 Will. 4. c. 27. Anne, c. 16, s. 12; Kemys v. Ruscomb, 2 Atk. 45). It was held, that the presumption arising from lapse of time of a judgment having been satisfied, was not rebutted by evidence of the debtor having been in extremely embarrassed circumstances, and, in the opinion of those who knew him, incapable of paying the debt secured by the judgment (Willaume v. Gorges, 1 Campb. 217; see also Grenfell v. Girdlestone, 2 Y. & C. 662; White v. Parnther, 1 Knapp, 228, 229).

VENDOR'S

LIEN.

Nature of the lien.

When lost.

(c) A vendor's lien for unpaid purchase-money is within this section (Toft v. Stephenson, 7 Hare, 1; 1 D. M. & G. 28). As to when time commences to run, see Toft v. Stephenson (5 D. M. & G. 735).

Where a vendor delivers possession of an estate to a purchaser without receiving the purchase-money, equity, whether the estate be conveyed (Chapman v. Tanner, 1 Vern. 267; Pollexfen v. Moore, 3 Atk. 272; and see 1 Br. C. C. 302, 424, and 6 Ves. jun. 483; Mackreth v. Symmons, 15 Ves. 329), and a receipt is indorsed on the conveyance (Coppin v. Coppin, 2 P. W. 291; 3 Russ. 488), or be not conveyed (Smith v. Hibbard, 2 Dick. 730; Charles v. Andrews, 9 Mod. 152), and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold (Winter v. Anson, 3 Russ. 488), gives the vendor a lien on the land for the money. But the application of this doctrine depends upon the intention of the parties (Re Albert, &c. Co., 11 Eq. 179).

Thus, where a vendor took a mortgage of part of the estate, his lien over the rest of the estate was held to be excluded (Capper v. Spottiswoode, Taml. 21); and where he took a mortgage of the whole estate for part of the unpaid purchase-money his lien for the balance was lost (Bond v. Kent, 2 Vern. 281; see 1 Sch. & Lef. 135). So there is no lien where the vendor takes a mortgage of another estate (6 Ves. 760), or a charge upon stock (Nairn v. Prowse, 6 Ves. 752); nor where the consideration for the conveyance was expressed to be the covenant for the payment of an annuity and a sum in gross in the event of the purchaser's marriage (Clark v. Royle, 3 Sim. 499; see Stuart v. Ferguson, i Hayes, 452; Parrott v. Sweetland, 3 M. & K. 655; Dixon v. Gayfere, 21 Beav. 118; 1 De G. & J. 655;

c. 27, s. 40.

Matthew v. Bowler, 6 Ha. 110; Buckland v. Pocknell, 13 Sim. 406); nor 3 & 4 Will. 4, where land was purchased under the Lands Clauses Act, and the consideration was a yearly rent-charge (Jersey v. Briton Ferry Co., 7 Eq. 409); nor where the purchase-money of lands sold to a company was expressed to payable out of moneys to be received by the company on sale of shares (Re Brentwood Co., 4 Ch. Div. 562); nor as against the mortgagees of the purchaser where vendor joined in the mortgage (Cood v. Pollard, 9 Price, 544; Smith v. Evans, 28 Beav. 59). For the lien in the case of purchases with trust money, see White v. Wakefield (7 Sim. 401); Muir v. Jolly (26 Beav. 143). Vendors were held to have lost their lien by permitting the purchaser to register his conveyance with a view to a sub-sale (Kettlewell v. Watson, 26 Ch. Div. 501; see Ex p. Parker, 1 Glyn & J. 228).

The lien, however may subsist notwithstanding a personal security is When not given for the money, whether by bill of exchange (Hughes v. Kearney, 1 lost. Sch. & Lef. 132; Grant v. Mills, 2 Ves. & B. 306; Ex p. Peake, 1 Madd. 346); or promissory note (Gibbons v Baddall, 2 Eq. Cas. Abr. 682, n. b; Ex p. Loaring, 2 Rose, 79); or bond (Winter v. Anson, 3 Russ. 488; Collins v. Collins, 31 Beav. 347). Nor is the lien lost by an improper payment to the vendor's solicitors (Wrout v. Dawes, 25 Beav. 369).

The lien prevails against the purchaser and his heir; against volunteers Against whom claiming under him; against sub-purchasers with notice; sometimes it prevails. against sub-purchasers without notice (Rice v. Rice, 2 Drew. 85; Sugd. V.

& P. 682, 14th ed.); and against assignees whether in bankruptcy or claiming under an assignment for the benefit of creditors (Fawell v. Heelis, Amb. 724).

The lien is assignable by parol (Dryden v. Frost, 3 M. & C. 670), but the Is assignable. assignee will take it subject to any prior incumbrances created by the vendor (Lacy v. Ingle, 2 Ph. 413).

A vendor of land to a railway company who have entered and used it In the case of for the purpose of their railway, is entitled to the same lien on land for the sales to a unpaid purchase-money and the same remedies for enforcing it as an ordi- railway nary vendor (See Munns v. Isle of Wight R. Co., 5 Ch. 414, where an order company. was made for a receiver, and the cases there quoted; Wing v. Tottenham Co., 3 Ch. 740, where the vendor was held entitled to a sale). The company will not be restrained from running trains over the land until the sale (Lyatt v. Stafford Co., 13 Eq. 261). The vendor has no lien for the costs of an arbitration under the Lands Clauses Consolidation Act (Ferrers v. Stafford Co., 13 Eq. 524).

The word "mortgage" in 17 & 18 Vict. c. 113, has been extended by 30 & 31 Vict. c. 69, so as to include the lien (See 40 & 41 Vict. c. 34; Broadbent v. Groves, 24 Ch. D. 94). As to a lien on real estate for an unpaid legacy, see Barker v. Barker (10 Eq. 438).

An unpaid vendor has not at law any lien on the title deeds for his pur- At common chase-money (Goode v. Burton, 1 Ex. 189; see also Hope v. Booth, 1 B. & law.

Ad. 498; Baker v. Dewey, 1 B. & C. 704; Lampon v. Corke, 5 B. & Ad.

606; Oxenham v Esdaile, 3 Y. & J. 362; Hooper v Ramsbottom, 4 Camp.

121; Harding v. Ambler, 3 M. & W. 279).

See further, on this subject, Mackreth v. Symmons (1 White and Tud.

L. C. Eq. 355, 6th ed.; Dart V. & P., 825 et seq., 6th ed.)

(d) It was questioned in Pawsey v. Barnes (20 L. J. Ch. 393), whether MONEY

the share of the produce of real estate, devised to trustees upon trust to CHARGED UPON sell, was a sum charged upon or payable out of land within this section. OR PAYABLE

Such a share was held to be "money payable out of land," within sect. OUT OF LAND. 42, post (Bowyer v. Woodman, 3 Eq. 313). In Mutlow v. Bigg (18 Eq. 246), land was devised on trust for sale, and part having been sold, but part remaining unsold, an action was brought for execution of the trust. V.-C. Hall held that sect. 40 had no application, except as regards the part sold.

Money due on a bond by an ancestor is not a sum of money payable out of land within this section (Roddam v. Morley, 2 K. & J. 336; see Morley v. Morley, 5 D. M. & G. 610).