37 & 38 Vict. c. 57, s. 9. with 3 & 4 Will. 4, c. 27, of which cer tain parts are repealed, and other parts to be read in reference to this act. 9. From and after the commencement of this act all the provisions of the act passed in the session of the third and fourth Act to be read years of the reign of his late Majesty King William the Fourth, chapter twenty-seven, 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, alteration by twenty-eight, and forty respectively (which several sections, from and after the commencement of this act, shall be repealed), and as if the term of six years had been mentioned, instead of the term of ten years, in the section of the said act numbered eighteen, and the period of twelve years had been mentioned in the said section eighteen instead of the period of twenty years; and the provisions of the act passed in the session of the seventh year of the reign of his late Majesty King William the Fourth, and the first year of the reign of her present Majesty, chapter twenty-eight, shall remain in full force, and be construed together with this act, as if the period of twelve years had been therein mentioned instead of the period of twenty years. 7 Will. 4 & 1 Vict. c. 28, with this act. to be read Time for recovering charges and arrears of interest not to be enlarged by express trusts for raising same, 10. After the commencement of this act 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 (m). (m) By sect. 9 of this act the provisions of 3 & 4 Will. 4, c. 27 (except the repealed sections but including the provisions substituted for such repealed sections), are to be construed together with this act. The present section must accordingly be construed with especial reference to 37 & 38 Vict. c. 57, s. 8 (substituted for 3 & 4 Will. 4, c. 27, s. 40), and 3 & 4 Will. 4, c. 27, s. 42. Under 3 & 4 Will. 4, c. 27, s. 40, it was held that in a number of cases (ante, p. 181) an express trust prevented the section from operating as a bar. By the present section an express trust will make no difference in this respect. And it has been said that simple contract debts, secured by a trust in a will to pay the same out of real estate, may be barred in twelve years (Re Stephens, Warburton v. Stephens, 43 Ch. D. 39). This section prevented a trust to pay debts in a will from keeping alive a claim on a bond (Fearnside v. Flint, 22 Ch. D. 579). Legacies not charged upon or payable out of land or rent, which were within 3 & 4 Will. 4, c. 27, s. 40, and are within 37 & 38 Vict. c. 57, s. 8, are not within the present section. In the case of such legacies, accordingly, an express trust would seem to prevent time running (See Playfair v. Cooper, 17 Beav. 187; see further the note ante, p. 181). The ordinary implied trust which affects personal estate held by an executor for the benefit of legatees, does not prevent time running (Re Davis, Evans v. Moore, 1891, 3 Ch. 124). As to arrears of interest on a legacy, see Blachford v. Worsley (27 Ch. D. 676). * su Re Barker Buston v. Campbell 1892, 2 Ch 498 Again, under 3 & 4 Will. 4, c. 27, s. 42, it was held, that in a number of cases (ante, p. 189) an express trust prevented the section from operating as a bar. By the present section an express trust will make no difference as regards arrears. Where land was conveyed to trustees upon trust to pay an annuity to A., his heirs and assigns, and no claim was made by A. for twenty-seven years after the annuity first became payable, A. could not recover any arrears by reason of this section, but was held entitled to the future payments of the annuity, the right to which had been preserved by the express trust (Hughes v. Coles, 27 Ch. D. 231). In this case the words "any sum of money" were held applicable to each instalment of the annuity as it became due (Ib.; see Edwards v. Warden, 9 Ch. 595). 37 & 38 Vict. c. 57, s. 10. As regards the matters especially mentioned in it, this section appears Jud. Act, to control Jud. Act, 1873, s. 25, subs. 2, which provided generally that 1875, s. 25. no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, should be barred by any Statute of Limitations. In the case of proceedings against trustees and persons claiming through Trustee Act, them commenced after 1st January, 1890, regard must be had to the 1888. Trustee Act, 1888, post, p. 231. 11. This act may be cited as the "Real Property Limitation Short title. Act, 1874." 12. This act shall commence and come into operation on the Commencefirst day of January one thousand eight hundred and seventy- ment of act. nine. III. OF THE LIMITATION OF ACTIONS BY OR AGAINST EXECUTORS 3 & 4 WILLIAM IV. CAP. 42, SECTS. 2-7. actions for cutors for 2. And whereas there is no remedy provided by law for injuries 3 & 4 Will. 4, to the real estate (a) of any person deceased committed in his c. 42, s. 2. lifetime, nor for certain wrongs done by a person deceased in his Executors lifetime to another, in respect of his property, real or personal; may bring for remedy, therefore, be it enacted, that an action of trespass, or injuries to trespass on the case, as the case may be, may be maintained by the real estate the executors or administrators of any person deceased, for any of the deceased, and injury to the real estate of such person, committed in his lifetime, actions may for which an action might have been maintained by such person, be brought so as such injury shall have been committed within six calendar against exemonths before the death of such deceased person, and provided injuries to such action shall be brought within one year after the death of property, real such person; and the damages, when recovered, shall be part of or personal, the personal estate of such person (b); and an action of trespass, tator. or trespass on the case, as the case may be, may be maintained against the executors or administrators of any person deceased, for any wrong committed by him in his lifetime to another, in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such execu by their tes c. 42, s. 2. 3 & 4 Will. 4, tors or administrators shall have taken upon themselves the administration of the estate and effects of such person; and the damages to be recovered in such action shall be payable in like order of administration as the simple contract debts of such person. Limitation of action of debt on specialties, &c. (a) It was doubted whether this includes leasehold interests (Adam v. Bristol, 2 Ad. & Ell. 389). (b) An executor was held entitled to recover damages for an obstruction to the light of a house of his testatrix (Jones v. Simes, 43 Ch. D. 607). According to the rule of common law, executors could not be sued for a wrong committed by their testator for which only unliquidated damages could be recovered (Kirk v. Todd, 21 Ch. D. 489; see Phillips v. Homfray, 24 Ch. D. 439; Twycross v. Grant, 4 C. P. D. 45). As an exception to this rule, this section permits executors to be sued for wrongs committed by their testator in respect of property, but the right is subject to the limitations in the section; and where the wrong has been committed more than six months before the testator's death, the section does not apply (Kirk v. Todd, sup.) Where a will provided that the tenant for life should keep devised premises in repair, an action of tort in respect of permissive waste by non-repair lay against the executor of the tenant for life under the above section (Woodhouse v. Walker, 5 Q. B. D. 404; Andrew v. Williames, 52 L. T. 41; see Batthyany v. Walford, 36 Ch. Div. 269, where the settled estates were situate in a foreign country). A claim made more than six months after the death, but within six months after probate was allowed (Andrew v. Williames, sup.) Within six months after the death of an innkeeper, an action of tort was maintained against his executors for the property of a traveller lost in his house (Morgan v. Ravey, 30 L. J. Ex. 131); and trespass was maintained against an administrator for coal wrongfully taken from the plaintiff's land by the intestate within six months before his death (Powell v. Rees, 7 Ad. & Ell. 426). 3. 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, 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, that shall be sued or brought at any time after the end of the present session of parliament, 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 any indenture of demise, or covenant, or debt upon any bond or other specialty, actions of debt or scire facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after: provided that nothing herein c. 42, s. 3. contained shall extend to any action given by any statute where 3 & 4 Will. 4, the time for bringing such action is or shall be by any statute specially limited. (As to Ireland, see 16 & 17 Vict. c. 113, s. 20) (a). (a) To an action of covenant six years is not a good plea of limitation Cases within (Hartshorn v. Watson, 4 Bing. N. C. 178). Where a purchaser covenanted this section. to pay his purchase-money by promissory notes of even date, it was held that an action could be brought on the covenant after six years (Dixon v. Holroyd, 7 Ell. & Bl. 703). The section applies even where the bond on which action is brought was executed in India, where the period of limitation for specialties is three years (Alliance Bank v. Carey, 5 C. P. D. 429). An action for calls by a company under 8 & 9 Vict. c. 16, is an action on a specialty, and is therefore within this section, and not 21 Jac. 1, c. 16 (Cork and Bandon R. Co. v. Goode, 13 C. B. 827; see Shepperd v. Hills, 11 Exch. 55). In the winding up of a banking company which had been established by a deed of settlement, the liability of a shareholder was a liability by way of specialty within this section (Re Portsmouth Banking Co., 2 Eq. 167). By the Companies Act, 1862, s. 75, the liability to contribute under a winding-up order creates a specialty debt, even though the company was not registered under that act (Muggeridge v. Sharp, 10 Eq. 443); and the specialty is one which binds the heirs of the contributory (Buck v. Robson, 10 Eq. 629). In the case of companies formed and registered under that act, the liability of a member in a winding-up is a specialty (Companies Act, 1862, sects. 75, 90, 134). So also is the liability of a member under the articles (sect. 16). A specialty debt was not created by a call made by a company established under the old Joint Stock Companies Winding-up Acts (Robinson's Executors' case, 6 D. M. & G. 572), or under a colonial statute (Welland R. Co. v. Blake, 30 L. J. Ex. 161). As regards rent reserved, an action on a covenant under seal for pay- Cases within ment of such rent may be brought within the twenty years limited by 3 & this section 4 Will. 4, c. 42, s. 3, and is not limited to six years by the 42nd section and also of 3 & 4 Will. 4, c. 27. In Paget v. Foley (2 Bing. N. C. 679), Tindal, C.J., within 3 & 4 said, "If the 42nd section of 3 & 4 Will. 4, c. 27, is a general enactment, Will. 4, c. 27. the subsequent declaration that an action of covenant may be commenced during a longer period is virtually an exception out of the former: we are to reconcile the two enactments if it be possible, but if it be not, the affirmative and negative cannot co-exist, and the action of covenant must be taken as an exception; therefore, without affecting the clause in the first statute further than is necessary to give effect to the second, we decide that the plea of six years' limitation of the cause of action is bad" (See Paddon v. Bartlett, 3 Ad. & Ell. 895; Wilson v. Jackson, 2 Ir. L. R. i; Strachan v. Thomas, 12 Ad. & Ell. 558). The act 37 & 38 Vict. c. 57, has made no difference in this respect (Darley v. Tennant, 53 L. T. 237). As regards a rentcharge, it was held under 3 & 4 Will. 4, c. 27, that such statute did not apply to an action on a collateral covenant for payment of such rent-charge; and that the covenantee might recover damages for the breach of that covenant, notwithstanding his right to recover the rentcharge out of the land was barred (Manning v. Phelps, 10 Exch. 59; see now 37 & 38 Vict. c. 57, s. 8, ante, p. 198). As regards mortgage debts, the personal remedy of a mortgagee to obtain payment from the mortgagor is now, by 37 & 38 Vict. c. 57, s. 8, barred after twelve years, whether the action be on a collateral bond (Fearnside v. Flint, 22 Ch. D. 579), or on the mortgagor's covenant in the mortgage deed (Sutton v. Sutton, 22 Ch. D. 511). As regards arrears of interest recoverable in an action on covenant, see Mellersh v. Brown (45 Ch. D. 228). Courts of equity adopted many of the provisions of this statute (Hyde Cases in v. Price, 8 Sim. 578). In administration suits, specialty debts were held equity. barred under it (Spickernell v. Hotham, Kay, 669). But where a settlor 3 & 4 Will. 4, c. 42, s. 3. Penalties. When time begins to run under this section. Remedy for infants, femes coverts, &c. Absence of defendants beyond seas provided for. Disabilities. had constituted himself a trustee of a covenant, time was no bar (Stone v. Stone, 5 Ch. 74). See note as to courts of equity and the Statutes of Limitation, p. 232, post. An action for penalties by an officer of the Company of Goldsmiths, mentioned in 7 & 8 Vict. c. 22, is not an action by a "party grieved within this section, and may he brought more than two years after accruer of the cause of action (Robinson v. Currey, 7 Q. B. Div. 465). In the case of post obit bonds, time does not begin to run until the death (Tuckey v. Hawkins, 4 C. B. 655; see Barber v. Shore, 1 Jebb & S. 610). On a bond conditioned to pay an annuity, the non-payment of each instalment is a distinct breach, and the statute begins to run against each as it becomes due (Amott v. Holden, 18 Q. B. 593); where Lord Campbell, C. J., said (p. 603): "It is admitted that, since Sanders v. Coward (15 M. & W. 48), and Blair v. Ormond (17 Q. B. 423), where a bond is conditioned for the performance of a series of acts at stated times, though there may have been a forfeiture, by reason of the non-performance of the first act in that series, yet if default be made in the performance of subsequent acts, a new cause of action arises upon each default, and the statute runs from that. The obligee, therefore, is not prevented by the statute from suing in respect of breaches_committed more than twenty years after the first breach, if he has chosen to waive the previous breaches" (See Higgs v. Mortimer, 1 Exch. 711). If a bond with a penalty were given to secure a duty which is to be performed during a period of twelve years, the bond would be forfeited by a delinquency in the first year, but the obligee might elect not to act on it until the delinquency in the twelfth year (Per Bramwell, B., 7 L. T. 792). Where the breach is a continuing breach, a fresh cause of action arises at every moment of the time during which the breach continues (Maddock v. Mallet, 12 Ir. Ch. R. 193). As to the time from which time runs in the case of a breach of covenants for title, see the conflicting judgments of Bramwell, B., and Kelly, C. B., in Spoor v. Green (L. R. 9 Ex. 110, 116). A deed of settlement of a company exonerated the transferor of shares from all liabilities in respect of his shares subsequently to the transfer, with a proviso that nothing should extend to release the transferor from his proportion of losses up to transfer. In winding-up time was held to run from the date of the transfer, and not from the date of the windingup order (Re Portsmouth Banking Co., 2 Eq. 167). 4. That if any person or persons that is, or are, or shall be entitled to any such action or suit, or to such scire facias, is, are, or shall be, at the time of any such cause of action accrued, within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person or persons shall be at liberty to bring the same 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 provisions of this act, have done; and that if any person or persons against whom there shall be any such cause of action, is, or are, or shall be at the time such cause of action accrued, beyond the seas, then the person or persons entitled to any such cause of action shall be at liberty to bring the same against such person or persons within such times as are before limited after the return of such person or persons from beyond the seas (b). (b) This provision as to disabilities has been altered by 19 & 20 Vict. c. 97, s. 10 (p. 228, post), which enacts that the absence beyond seas of the |