the lord (Doe d. Cook v. Danvers, 7 East, 299); nor cases where the party has not any remedy but by entry as a devisee. (Co. Litt. 240 b; 7 East, 321. On descent cast, see Co. Litt. 237 b; Bac. Abr. Descent (F) (G) (H); Com. Dig. Descent (D); Roscoe on Real Actions, 81-87; Adams on Ejectment.)

3 & 4 Will. 4,

c. 27, 8. 39.

A discontinuance of estates in lands and tenements is defined by Lord Discontinuance. Coke to be "An alienation made or suffered by tenant in tail, or by any that is seised in auter droit, whereby the issue in tail, or the heir or successor, or those in reversion or remainder, are driven to their action and cannot enter." (Co. Litt. 325 a.) At common law, an estate might be discontinued five ways:-1. By feoffment. 2. By fine. 3. By common recovery. 4. By confirmation: and 5. By release with warranty. A grant by deed or fine, of such things as lie not in livery (Litt. s. 618; Co. Litt. 332 a), does not work any discontinuance. A feoffment made after 1st October, 1845, has no tortious operation. (8 & 9 Vict. c. 106, s. 4.)

A discontinuance of an estate tail could only be made by a tenant in tail in possession (Doe d. Jones v. Jones, 1 Barn. & Cress. 243); and where tenant for life joined with a remainderman in tail in making a lease for lives, it was held not to create a discontinuance. (Trevilian v. Lane, Cro. Eliz. 56. See 1 Rep. 76 a; Litt. s. 658; Co. Litt. 325 a.) But the existence of a term of years prior to the estate of a tenant in tail did not prevent a fine levied by him from operating as a discontinuance; thus, where lands were limited to A. for five hundred years, remainder to B. in tail, remainder to C. in tail, reversion to B. in fee; and B. levied a fine with proclamations to the use of himself in fee: it was held, that although the estate for years of A. continued, the estate of B. was discontinued, and the remainder in tail to C. divested. (Doe v. Finch, 1 Nev. & Mann. 130; and see the notes to that case, where much learning on the subject of discontinuance, &c. is collected; S. C., 4 B. & Ad. 283.) As to discontinuance, see Bac. Abr. and Com. Dig. Discontinuance; Co. Litt. 325 a, 347 b, and notes by Butler; Roscoe on Real Actions, 43-53; 1 Prest. on Conv. and on Abst. Index; Roper on Husband and Wife, c. 2, s. 2; Doe d. Gilbert v. Ross, 7 Mees. & W. 125.

As to the law of warranty, see Com. Dig. Guaranty; Co. Litt. 365 a, Warranty. 393 b, and notes by Butler; Bac. Abr. Warranty; Shepp. T. 181–203. In a case, where A., tenant for life, remainder to B. his wife for life, remainder to the heirs of the body of B. by A. to be begotten; and C. the issue of A. and B., in their lifetime levied a fine come ceo, &c., without proclamations, but containing a clause of warranty; and C. survived A. and B., and died leaving issue D.: it was held, that the right of entry of D. was taken away by the effect of the warranty. (Doe d. Thomas v. Jones, 1 Crompt. & Jerv. 528; S. C., 1 Tyrw. 506.) By stat. 3 & 4 Will. 4, c. 74, s. 14, all warranties of lands which shall be made after the 31st December, 1833, by any tenant in tail thereof, shall be absolutely void against the issue in tail, and all persons whose estates are to take effect after the deter mination or in defeasance of the estate tail. (See post.)

[Sections 40, 41, 42 of this act are inserted pp. 236, 249, post.]

10. Limits of the Act.
Spiritual Courts.

43. After the said thirty-first day of December, one thousand eight hundred and thirty-three, no person claiming any tithes, legacy or other property, for the recovery of which he might bring an action or suit at law or in equity, shall bring a suit or other proceeding in any spiritual court to recover the same but within the period during which he might bring such action or suit at law or in equity (h).

Act to extend to the spiritual courts.

3 & 4 Will. 4, c. 27, 8. 43.

Recovery of

legacies by action at law.

Act not to extend

to Scotland nor to advowsons in Ireland.

Lege present.

The colonies

(h) The mode of recovering personal legacies in the ecclesiastical courts is stated in 3 Hagg. Eccl. R. 161, 162. A legatee could not maintain a suit in the ecclesiastical court to recover his legacy when there are only equitable and not legal assets. (Barker v. May, 9 B. & C. 489.) See now, however, 20 & 21 Vict. c. 77, s. 23, by which it is provided that the Court of Probate, to which the jurisdiction of the ecclesiastical courts has been transferred, shall entertain no suit for legacies.

No action at law lics against an executor for a pecuniary legacy (Deeks v. Strutt, 5 T. R. 690. See Mayor of Southampton v. Graves, 8 T. R. 593; Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289, contrà); nor against an administrator to recover a distributive share; nor against his executor, although he has promised to pay. (Jones v. Tanner, 7 B. & C. 542; 1 M. & R. 420. See Johnson v. Johnson, 3 Bos. & P. 169.) But an action at law lies against an executor to recover a specific chattel bequeathed after his assent to the bequest. (Doe v. Guy, 3 East, 120; 4 Esp. 154; Paramour v. Yardley, Plowd. 539; Westwick v. Wyer, 4 Rep. 28 b.) And under peculiar circumstances, an action of assumpsit for money had and received, and on an account stated, was held to be maintainable by a residuary legatee against an executor for the plaintiff's share of the residue, "on the ground of a certain sum being received and retained to the plaintiff's use;" the defendant had ceased to hold the money in his character of executor. (Hart v. Minors, 2 Cr. & M. 700.) The plaintiff and three others being residuary legatees, the defendants, as the executors named in the will, accounted with them; and having paid to the latter the respective sums due to them thereon, took from them and from the plaintiff a release, but did not pay the plaintiff his share, he having consented to allow it to remain in their hands: it was held, that the money, not being retained by the defendants in their character of executors, the plaintiff was entitled to recover it in an action at law. (Gregory v. Harman, 1 M. & P. 209; 3 C. & P. 205; The Corporation of Clergymen's Sons v. Swainson, 1 Ves. sen. 75; Reech v. Kennegal, Ib. 123; Rogers v. Soutten, 2 Keen, 598; Bothe v. Crampton, Cro. Jac. 612; Davis v. Reyner, 2 Lev. 3; Goring v. Goring, Yelv. 10; Rann v. Hughes, 7 T. R. 350, n.; Childs v. Monins, 2 Brod. & Bing. 460; 5 B. Moore, 282; Bradley v. Heath, 3 Sim. 543; Holland v. Clark, 1 Y. & Coll. N. C. 151. See Wms. Exors. 1783-1787, 6th ed.) In an action against executors upon an account stated for a legacy, it is competent to the plaintiff to impeach any particular item or items on the credit side of the account. (Rose v. Savory, 2 Scott, 199; 1 Hodges, 269; Gorten v. Dyson, 1 Brod. & B. 219; Moert v. Moessard, 1 M. & P. 8; Wasney v. Earnshaw, 4 Tyrw. 806; Roper v. Holland, 3 Ad. & Ell. 99; 4 Nev. & M. 868.) A testator devised lands in fee, after the determination of certain life estates, to A., B. and C., as tenants in common, subject to and charged with the payment of 2007., which he thereby bequeathed to and to be equally divided among the children of his niece. A. and B., during the life of one of the tenants for life, granted their reversion in two undivided third parts of the lands to mortgagees for 500 years: it was held, that an action of debt could not be maintained against the termors for a share of the 2007. so bequeathed. (Braithwaite v. Skinner, 5 M. & W. 313.)

Scotland and Ireland.

44. Provided always, and be it further enacted, that this act shall not extend to Scotland; and shall not, so far as it relates to any right to permit to or bestow any church, vicarage or other ecclesiastical benefice, extend to Ireland (i).

(i) The provisions of 3 & 4 Will. 4, c. 27, relating to advowsons, &c., were extended to Ireland by 6 & 7 Vict. c. 32, and 7 & 8 Vict. c. 27. See now 32 & 33 Vict. c. 42.

This act applies to New South Wales. (Day v. Day, L. R., 3 P. C. 751.) As to India, see Re Peat's Trusts, L. R., 7 Eq. 302; Hay v. Gordon, 21 W. R. 11. By the law of Lower Canada the period of prescription is thirty

years. (Herrick v. Sixby, L. R., 1 P. C. 436; Macdonald v. Lambe, ib. 3 & 4 Will. 4, 539.)

A party insisting upon the Statute of Limitations, as a bar to a demand against him, must set up that defence upon the first opportunity; otherwise a party is contesting a question of right, when in fact there was no legal question to be decided; for if the statute be a bar, the cause ought to stop when the defence is set up. (Costello v. Burke, 2 Jones & L. 669.) It seems that at law a defendant may have the benefit of a Statute of Limitations, which extinguishes a right, without pleading it. (De Beauvoir v. Owen, 5 Exch. 166.) It has been decided in equity that, upon motion for a decree, a defendant may have the benefit of 3 & 4 Will. 4, c. 27, although it is only set up by his affidavit (Green v. Snead, 30 Beav. 231); and the same has been held in Ireland. (Shaw v. Keighron, I. R., 3 Eq. 574.) In Roch v. Callen (6 Hare, 531), which was a case under 3 & 4 Will. 4, c. 27, s. 42, Wigram, V.-C., laid down that it would be improper to permit a defendant at the hearing of the canse to insist upon the statute if he has not set up that defence upon the pleadings. In Cummins v. Adams (2 Ir. Eq. R. 393), it was said that when a defendant seeks to have the advantage of the 42nd section of 3 & 4 Will. 4, c. 27, he must, in general, rely upon it in his pleading. But in that case a defendant who omitted to rely upon the statute, expressly denied the existence of the debt in his answer in such terms as were considered to amount substantially to a reliance upon the statute, and the court did not deprive him of the benefit of the statute. In a case which arose under 21 Jac. 1, c. 16, a defendant, not being required by the bill to do so, did not file any answer. The cause came on upon a motion for a decree, when the defendant at the bar pleaded the statute, and the court, holding that a defendant who intends to set up such a defence ought to do so by answer, disallowed the objection thus taken. (Holding v. Barton, 1 Sm. & G., App. 25. And see Harrison v. Borwell, 10 Sim. 382; Ridgway v. Wharton, 3 D., M. & G. 692.)

Where a bill was filed for an account of mesne rents and profits, under circumstances in which 21 Jac. 1, c. 16, was applicable by analogy, the account was not limited to six years, but was taken from the time the plaintiff's title accrued, because the defence of the statute was not raised by the pleadings. (Monypenny v. Bristow, 2 Russ. & M. 117.)

When it appears on the face of the bill that the cause of the suit accrued more than the statutory period before the filing of the bill, a defendant need not plead the statute, but may demur. (Smith v. Fox, 6 Hare, 386; Prance v. Sympson, Kay, 680; Rolfe v. Gregory, 8 Jur., N. S. 606; 10 W. R. 711. And see the earlier authorities collected, Daniell, Ch. Pr. 479.) But it seems that he cannot raise the objection of lapse of time, without reference to the statute, by demurrer. (Deloraine v. Browne, 3 Br. C. C. 643; Wilson v. Furness R. Co., 18 W. R. 89.)

c. 27, s. 44.

Pleading the tation in equity.

Statutes of Limi

Must the defence

be raised on the pleadings.

The defence may be raised by de

murrer.

The defence of the statute may also be raised by plea; as to which see By pica. Daniell, Ch. Pr. 551, et seq. The cases in which it is necessary that a plea should be supported by answer, and the rules for framing a joint plea and answer, are given in Daniell, Ch. Pr. 528, et seq. A plea of this statute ought not to deny by answer statements in the bill, which are in direct contradiction to the averments necessary to support the plea; but an answer in support of the plea ought to be confined to those statements in the bill, which allege facts ancillary to or as affording evidence of statements which are directly negatived by the requisite averments in the plea. (Dearman v. Wyche, 9 Sim. 570.) A plea relying upon the 40th section of this act should both state the commencement of the period of limitation and negative the cases of exception in that section. A plea was held defective which did not expressly aver that the action was not brought within twenty years next after a present right to receive the sum secured by the judgment had accrued. (Fortescue v. M'Kone, 1 Jebb & S. 341.) Averments in a plea of the Statute of Limitations, negativing facts that would defeat the plea, but which are not stated in the bill, are surplusage, but do not vitiate the plea. A plea of the Statute of Limitations need not negative the usual general allegation that the defendant has in his custody documents relating to the matters contained in the bill. (Forbes v. Shelton, 8 Sim. 335.)

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

Plea to a bill of discovery.

By answer.

Proceedings under 5 & 6 Will, 4,

c. 55.

Pleading the statutes at law.

The Statute of Limitations, notwithstanding it is a defence at law, may be pleaded to a bill of discovery in aid of an action brought, provided it has been pleaded to the declaration. If the action was commenced before the bill was filed, the plea must aver that the cause of action did not accrue within six years before the action was brought. (Macgregor v. East India Co., 2 Sim. 452.) A plea of the Statute of Limitations to a bill of discovery in aid of an ejectment was allowed. (Scott v. Broadwood, 2 Coll. C. C. 447.) Where no relief can be had at law, on account of lapse of time, a suit for discovery and relief in an action at law cannot be sustained. (Fisher v. Price, 11 Beav. 199.) Where a bill for redemption of a mortgage stated the payment of interest within twenty years, and the defendant simply pleaded the statute, it was held that the plaintiff, after replication, might compel the production of documents in the defendant's possession to prove the statement of payment of interest, although the bill contained no charge as to documents. (Parkinson v. Chambers, 1 K. & J. 72.)

A plea, pleading first the statute 21 Jac. 1, c. 16, and afterwards the stat. 9 Geo. 4, c. 14, is not double; for those acts, although passed at different times, are to be considered as making jointly one law. (Forbes v. Shelton, 8 Sim. 335.) Leave was given to file a double plea to an ejectment bill, namely, not heir, and secondly the Statute of Limitations. (Bampton v. Birchall, 4 Beav. 558.) To a bill filed for an account of coal against the representatives of the lessees of a mine, the defendants pleaded the Statute of Limitations in respect of the account, and averred that they had not taken upon themselves the performance of the covenants in the lease. It was held, that this being a plea of the statute, and a plea of liability never incurred, the two things were inconsistent. The defendants also pleaded the statute as to further accounts of coal obtained from land not comprised in the original lease; and the defendants then averred that they had practised no fraud or concealment in obtaining such coal. It was held, that this raised an issue not contained in the bill, and not supporting the plea, and was inconsistent with the plea. Separate pleas may be put in to separate parts of a bill. (Emmott v. Mitchell, 14 Sim. 432.) Where a bill was filed for the accounts of an alleged partnership, a plea of no partnership, accompanied by an answer raising the defence of laches and the Statute of Limitations, was held bad for duplicity. (Mansel v. Feeny, 2 J. & H. 313.)

A defendant insisting upon the benefit of the statute by answer, shall, at the hearing, have the like benefit of the statute as if he had pleaded it. (Norton v. Turvill, 2 P. Wms. 144.) And where the defendants by their answer claimed the benefit of the "Statute" of Limitations, it was held that they were entitled to the benefit of any statute of limitations applicable to their case. (Adams v. Barry, 2 Coll. 290.) An application for leave to file a supplemental answer for the purpose of enabling the defendant to raise the defence of the Statute of Limitations was refused. (Perciral v. Caney, 14 Jur. 473.)

In the joint answer of a husband and wife to a creditor's bill for payment out of an estate of which the wife was administratrix, the wife alone set up the Statute of Limitations as a defence to the suit: it was held, that the interest of the wife was not so merged in the coverture that the court would disregard her separate defence, and that the statute was for the protection of the estate sufficiently pleaded by the wife alone. (Beeching v. Morphew, 8 Hare, 129.) And a plea of the statute by a tenant in tail was held, under the circumstances of the case, to enure for the benefit of all the defendants. (Morley v. Morley, 5 D., M. & G. 610.)

As to pleading the statute in proceedings under 5 & 6 Will. 4, c. 55 (Ireland), see Costello v. Burke, 2 J. & Lat. 665. In Welsh v. Welsh (1 Jones & Carey, 232), it was decided that a defendant who does not rely on the statute in his answer cannot resort to it in his discharge. This was doubted in Drought v. Jones (2 Ir. Eq. R. 306); but it seems to be approved by Lord St. Leonards. (R. P. Stat. 151.)

As to pleading the statutes of limitation at law, see Bullen & Leake, 639, et seq.; Darb. & Bos. Stat. Lim. 427.

3 & 4 Will. 4,

c. 27, s. 44.

By the Common Law Procedure Act, 1852, so much of the act 2 & 3 Will. 4, c. 39, s. 10, as relates to the duration of writs and to alias and pluries writs, and to the proceedings necessary for making the first writ in any action available to prevent the operation of any statute, whereby the Process to save time for the commencement of any action may be limited, is repealed. (15 & 16 Vict. c. 76, s. 10.)

No original writ of summons shall be in force for more than six months from the day of the date thereof, including the day of such date, but if any defendant therein named may not have been served therewith, the original or concurrent writ of summons may be renewed at any time before its expiration, for six months from the date of such renewal, and so from time to time during the currency of the renewed writ, by being marked with a seal bearing the date of the day, month and year of such renewal, such seal to be provided and kept for that purpose at the offices of the masters of the said superior court, and to be impressed upon the writ by the proper officer of the court out of which such writ issued, upon delivery to him by the plaintiff or his attorney of a præcipe, in such form as has heretofore been required to be delivered upon the obtaining of an alias writ; and a writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ of summons. (15 & 16 Vict. c. 76, s. 11; 16 & 17 Vict. c. 113, s. 28, as to Ireland.)

Within six months of issuing a writ of summons the plaintiff's attorney paid the proper fees at the office for its renewal under sect 11 of the 15 & 16 Vict. c. 76, but he inadvertently neglected to get the seal of the court impressed upon it; after the lapse of six months the omission was discovered. There having been no default in their officer, the court refused to order the seal to be impressed nunc pro tunc, in order to prevent the running of the statute. (Nazer v. Wade, 31 Law J., Q. B. 5.)

Under that act a concurrent writ of summons can only be issued within six months from the time of issuing the original writ. (Cole v. Sherard, 11 Exch. 482.) Where a writ of summons has been issued before that act came into operation, and has been duly continued up to that time, the first renewal under that act is quasi the original writ. (Ib.)

It is questionable whether the six months for which the renewed writ of summons under the 11th section of the 15 & 16 Vict. c. 76, is to be available, are to be reckoned inclusively or exclusively of the date of the renewal. The officer, assuming the former to be the proper construction, having declined to seal a writ which upon that assumption was tendered a day too late, the court, without expressing any opinion as to whether or not he had rightly construed the act, directed him to seal it nunc pro tunc. (Black v. Green, 15 C. B. 262; Anon., 18 Jur. 1017; 24 Law J., C. P. 1; S. P., Anon., 18 Jur. 1104; 24 Law J., Q. B. 23.)

The court will not allow a writ of summons resealed too late to take a case out of the provisions of the Statute of Limitations by mistake of the attorney, to be resealed nunc pro tunc for this purpose. (Bailey v. Owen, 9 W. R. 128.)

As to process to save the Statute of Limitations, see 2 Arch. Pr., Q. B., by Prentice, 12th ed., pp. 1245, 1246, and Black v. Green, 15 C. B. 262. No judgment in any cause shall be reversed or avoided for any error or defect therein unless error be commenced or brought and prosecuted with effect within six years after such judgment signed or entered of record. (15 & 16 Vict. c. 76, s. 146; 16 & 17 Vict. c. 113, s. 166, Ireland.) If any person entitled to bring error as aforesaid shall be at the time of such title accrued within the age of twenty-one years, feme covert, non compos mentis, or beyond the seas, then such person shall be at liberty to bring error as aforesaid, so as such person commences or brings and prosecutes the same with effect within six years after coming to or being of full age, discovert, of sound memory or return from beyond the seas, and if the opposite party shall at the time of the judgment signed or entered of record be beyond the seas, then error may be brought, provided the proceedings be commenced and prosecuted with effect within six years after the return of

the statute at law.

Renewal of writ

of summons to save the Statute

of Limitations, and for other purposes.

Limitations in practice at law. Error to be

brought within six years.

Proviso for disabilities.