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 contained shall extend to any action given by any statute where 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).

3 & 4 Will. 4,

c. 42, s. 3.

(a) To an action of covenant six years is not a good plea of limitation. Cases within this (Hartshorn v. Watson, 4 Bing. N. Č. 178.) Where D. by deed sold to H. section. certain seams of coal, H. covenanting to pay the purchase-money by promissory notes of even date: held, that this was a covenant to pay the purchase-money by means of the notes, that D. had a remedy upon the covenant to pay the purchase-money, and that it was a bad plea that the causes of action did not accrue within six years before action. (Dixon v. Holroyd, 7 Ell. & Bl. 703.) In 1831, an obligee of a bond brought an action against the obligor, and after notice of trial the action abated by the death of the obligor in 1835. The obligor left a will which was proved by the executor therein named and in May, 1857, administration of the goods and effects of the obligor with the will annexed was granted to the defendant. In 1852, the obligee petitioned the Insolvent Debtors' Court, and his effects vested in the provisional assignee who commenced an action on the bond against the defendant on the 17th May, 1858. Held, that the second action was not barred by this section, for the first action had been commenced within the proper time, and had abated without default of the plaintiff, and the second action had been commenced within a reasonable time after the granting of letters of administration. (Sturgis v. Darell, 6 H. & N. 120; 8 W. R. 653.)

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, it was held, that the liability of a shareholder was a liability by way of specialty within this section. (Re Portsmouth Banking Co., L. R., 2 Eq. 167.) By 25 & 26 Vict. c. 89, 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, L. R., 10 Eq. 443); and the specialty is one which binds the heirs of the contributory. (Buck v. Robson, L. R., 10 Eq. 629.) In the case of companies formed and registered under that act, liability on the part of a member ceases twelve months after the date of his retirement. (25 & 26 Vict. c. 89, s. 38.) A call made under the old Joint Stock Companies Winding-up Acts did not create a specialty debt. (Robinson's Executors' case, 6 De G., M. & G. 572.)

An action of covenant for rent in arrear may be brought within the time limited by 3 & 4 Will. 4, c. 42, s. 3, and is not limited to six years by the 42nd section of 3 & 4 Will. 4, c. 27. In Paget v. Foley (2 Bing. N. C. 679), Tindal, C. J., said, "If the 42nd section of 3 & 4 Will. 4, c. 27, is a general enactment, 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; 5 Nev. & M. 383; Wilson v. Jackson, 2 Ir. L. R. 1.) An action of debt upon a covenant in an indenture granting an annuity or rent-charge to issue out of land, may be brought within the period of twenty years limited by 3 & 4 Will. 4, c. 42, s. 3, and is not barred by 3 & 4 Will. 4, c. 27, s. 42, which limits the recovery of arrears of interest within six years. (Strachan v. Thomas, 4 P. & D. 229; 12 Ad. & Ell. 558.) See further Hunter v. Nockolds,

Cases within this section and also Will. 4, c. 27.

within 3 & 4

3 & 4 Will. 4, c. 42, s. 3.

Cases in equity.

When time begins to run under this section.

1 Mac. & Gor. 640; and the cases quoted under 3 & 4 Will. 4, c. 27, s. 42, ante, p. 252. The limitation prescribed by 3 & 4 Will. 4, c. 27, does not apply to an action on a collateral covenant for payment of rent charged on land, and the covenantee may recover damages for the breach of that covenant, notwithstanding his right to recover the rent-charge is barred by that statute. (Manning v. Phelps, 10 Exch. 59.)

It has been already stated that a court of equity will adopt many of the provisions of this statute. (Hyde v. Price, 8 Sim. 578.) It has been held in administration suits that specialty debts are barred by lapse of time under this statute. (Spickernell v. Hotham, Kay, 669.) But where a settlor had constituted himself a trustee of a covenant, time was held to be no bar. (Stone v. Stone, L. R., 5 Ch. 74.) See note as to the doctrines of equity with reference to the statutes of limitation, p. 288, post.

In the case of post obit bonds, time does not begin to run until the death. Thus where to an action of debt on a bond, dated more than twenty years before the commencement of the action, the defendant pleaded that the debt and cause of action in the declaration mentioned did not accrue at any time within twenty years next before the commencement of the suit; the plaintiff replied that the debt and cause of action did so accrue. At the trial the bond was produced, and appeared to be a post obit bond, and it was proved that the party upon whose death the sum secured was made payable died within twenty years: it was held, that the plaintiff was entitled to the verdict. (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 Mees. & 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." In giving judgment in Sanders v. Coward (15 M. & W. 56), Parke, B., said, "In construing the 3rd section of the 3 & 4 Will. 4, c. 42, it seems to us that the limitation in an action on bond, of 'twenty years from the cause of action or suit,' is not to be confined to twenty years from the first breach of a condition to do various things, any more than it would be confined to that period from the first breach of a covenant to do various things, in an action of covenant. Although, on the first breach of the condition of a bond, the obligee may sue the obligor, and have judgment under the statute of 8 & 9 Will. 3, c. 11, as a security of a higher nature for future breaches, he is not bound to pursue that course. He may waive the right of action on the bond in respect of the first breach, or any number of breaches, and be contented with the specialty security only for future breaches, and sue afterwards on a subsequent forfeiture, and assign that for a breach. If it were not so the inconvenience would be considerable, and the value of a security by bond diminished; and it is to be observed, that the limitation in the statute is not from the cause of action first accrued on the bond, but generally from the cause of action; and this construction leaves the obligee much in the same situation as before the act, except that the statute gives to the lapse of time the effect of an absolute bar to the remedy, instead of its being used as evidence of payment or performance of the condition, as it would have been before. If before the statute there had been a bond for the payment of twenty annual instalments, the lapse of twenty years from the time fixed for the payment of each instalment would have been good evidence to raise a presumption of the due payment of each instalment, but the right to recover the instalments due within twenty years would be unaffected." (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 3 & 4 Will. 4, the obligee might elect not to act on it until the delinquency in the twelfth c. 42, s. 3. year. (Per Bramwell, B., 7 L. T., N. S. 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.)

A deed of settlement establishing a banking company contained a clause exonerating the transferor of shares from all liabilities in respect of his shares subsequently to the transfer, with a proviso that nothing contained in that clause should extend to release the transferor from his proportion of losses sustained by the company up to the time of transfer. In the winding-up of the company time was held to run from the date of the transfer, and not from the date of the winding-up order. (Re Portsmouth Banking Co., L. K., 2 Eq. 167.)

fants, femes coverts,

4. That if any person or persons that is or are or shall be Remedy for inentitled to any such action or suit, or to such scire facias, is, &c. 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 Absence of defenentitled to any such cause of action shall be at liberty to bring provided for. 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).

dants beyond seas

(b) This provision as to disabilities has been altered by 19 & 20 Vict. Disabilities.

c. 97, s. 10 (p. 293, post), which enacts that the absence beyond seas of the

person entitled to the action shall be no disability. As to the meaning of

beyond seas," see sect. 7 of this statute (p. 264, post). See further the cases quoted under 21 Jac. 1, c. 16, s. 7 (p. 273, post), the law as to disabilities under both these sections being now the same.

acknowledgment

5. That if any acknowledgment shall have been made, either Proviso in case of by writing signed by the party liable by virtue of such inden- in writing, or by ture, specialty or recognizance, or his agent (c), or by part pay-part payment. ment or part satisfaction on account of any principal or interest being then due thereon (d), it shall and may be lawful for the person or persons entitled to such actions to bring his or their action for the money remaining unpaid, and so acknowledged to be due, within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid; or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be, at the time. of making the same, beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall have returned from beyond seas, as the case may be; the plaintiff or plaintiffs in any such action on any indenture, specialty or recognizance, may, by way of replication, state such

and

3 & 4 Will. 4, c. 42, s. 5.

Acknowledgment by writing.

Acknowledgment by payment.

Where several liable.

acknowledgment, and that such action was brought within the time aforesaid, in answer to a plea of this statute. (See 16 & 17 Vict. c. 113, s. 23, as to Ireland.)

(c) In an action of covenant on an indenture of mortgage of certain houses, executed in 1824 by the defendant in favour of the plaintiff's testator, to secure payment of 4007. and interest, the plaintiff, in order to take the case out of the stat. 3 & 4 Will. 4, c. 42, gave in evidence a deed executed by the defendant within twenty years before action brought, but to which deed the plaintiff's testator was no party. The deed, after reciting that the defendant had executed a mortgage of the house in question to the plaintiff's testator for securing to him a sum of 3207. and interest, stated that he conveyed that and other properties to trustees on trust to sell, and out of the proceeds of the sale to pay off all the mortgages and other incumbrances affecting the property, and then to pay the creditors, with an ultimate trust as to the surplus. It was held, that this was not an acknowledgment of the debt within the 5th section of the statute, so as to take the case out of the operation of the 3rd section. It was not necessary for the court to decide the point which was raised in this case as to how far the principle of the cases which have decided that an acknowledgment to third persons is not sufficient in actions on simple contracts to take a debt out of the 21 Jac. 1, c. 16, is applicable to the 3 & 4 Will. 4, c. 42, as to debts by specialty. (Howcutt v. Bonner, 3 Exch. R. 491; and see Forsyth v. Bristowe, 8 Exch. 716.) It has, however, since been decided that the acknowledgment under this section need not be made to the person entitled, or amount to a promise to pay; and, therefore, the admission of a bond debt, contained in an answer of the executors of the obligor in a suit to which the obligee was not a party, was held to be sufficient to take the bond debt out of the operation of this statute. (Moodie v. Bannister, 4 Drew. 433; 28 L. J., Ch. 881.) To a declaration in covenant for non-payment of money, the defendant pleaded that the cause of action did not accrue within twenty years. Replication, that it did accrue within, &c. It was held, under stat. 3 & 4 Will. 4, c. 42, ss. 3, 5, that the plaintiff could not, in support of this issue, give evidence of an acknowledgment by letter within the twenty years. (Kempe v. Gibbon, 9 Q. B. 609.) See further the cases as to acknowledgments by payment under this section.

The case of disability at the time of the acknowledgment existing on the part of the person entitled to the action, or on the part of the person making the acknowledgment is provided for at the end of this section. See the joint effect of this provision and 19 & 20 Vict. c. 97, s. 19, explained Darb. & Bos. Stat. Lim. 111-113.

(d) The 5th section does not specify by whom the part payment is to be made; but Lord Cranworth, C., expressed an opinion that there can be no doubt but it must be made by a party interested, for the legislature could not mean to give any right against the debtors by the mere act of a stranger. (Roddam v. Morley, 1 De G. & J. 18.) The payment of interest to a mortgagee by the assignee of the equity of redemption, was held to be payment by the agent of the mortgagor within the meaning of this section. (Forsyth v. Bristowe, 8 Exch. 716.) Payments made by a receiver in a suit, but which were not authorized by the order appointing him, were held not to take the case out of this statute. (Whitley v. Lowe, 25 Beav. 421; 2 De G. & J. 704.)

Payment by a devisee on a specialty of his testator's, in which the heirs were bound, is an acknowledgment within the 5th section, and sufficient to preserve the right of action, not only against the party making the payment, but also against all other parties liable on the specialty. (Roddam v. Morley, 1 De G. & J. 1; 2 K. & J. 336.) "If the payment is made by one only of several persons liable, as, for instance, by a person having only a life interest as devisee, who is affected by the payment? Does it operate against the party only by whom the payment is made, or does it affect all the other parties liable? Does it merely enable the creditor to sue the party by whom the payment was made, or does it set free the action generally? I have come to the conclusion that when a part payment or pay

c. 42, s. 5.

ment of interest has been made, which has the effect of preserving any right 3 & 4 Will. 4, of action, that right will be saved not only against the party making the payment, but also against all other persons liable on the specialty." (Per Lord Cranworth, L. C., Ib.)

Where a person indebted on a specialty dies having left personal estate, and real estate devised for payment of debts, and also real estate devised beneficially; it was said by Kindersley, V.-C., “There are three parties, each of whom is liable to the claims of a specialty creditor-the executor in respect of the personalty, the trustees in respect of the real estate devised for payment of debts, and the beneficial devisee in respect of the real estate beneficially devised. . If any one of these parties makes the payment or gives the acknowledgment, it is a payment or acknowledgment by the party liable by virtue of the specialty." (Coope v. Cresswell, L. R., 2 Eq. 117); in which case it was held, that payment of interest on a specialty debt of a testator by his personal representatives who were also trustees of real estate devised for payment of debts, took the debt out of the statute as against a beneficial devisee. This decision was reversed on appeal by Lord Chelmsford (L. R., 2 Ch. 112), who said that he was unable to concur in the reasoning which led to the ultimate decision in Roddam v. Morley (ubi sup.).

C. H. mortgaged freeholds and leaseholds in 1822. He devised and bequeathed his residuary estate upon trust for the payment of his debts, including mortgage debts, and afterwards upon trust for J. H. A. H., who was beneficial tenant for life under the will of C. H., in a moiety of the freeholds not comprised in the mortgage, and was also interested in the residue under the will of J. H., paid interest on the mortgage down to her death in 1859. Held, that such payment prevented the Statutes of Limitation being a bar to the mortgagee's proceeding, either against the property comprised in the mortgage, or on the covenant for repayment against the estate of C. H. (Pears v. Laing, L. R., 12 Eq. 41.) It was said by Bacon, V.-C., that he conceived that Roddam v. Morley (notwithstanding what was said of it in Coope v. Cresswell, and elsewhere) was of unquestionable authority. (Ib.)

As regards acknowledgments by payment of principal or interest in the case of several parties being liable, it has now been provided by 19 & 20 Vict. c. 97, s. 14, that payments by one co-debtor shall not prevent time running under this statute in favour of another co-debtor. (See post.)

By a marriage settlement, dated in 1828, A. covenanted to transfer a sum What amounts to of stock belonging to him to trustees upon trust to pay the dividends to payment. himself for life, and then upon trusts for the benefit of the intended wife and the issue of the marriage. The stock was not transferred: it was held, that this constituted a debt from him, and that notwithstanding his life interest time began to run against this debt from the execution of the settlement; for in this case the sum of stock which ought to have been brought into existence as a trust fund never had any existence, and it could not be assumed that a person had been paying himself the interest of a nonexisting fund. (Spickernell v. Hotham, Kay, 669. See also Stone v. Stone, L. R., 5 Ch. 74.) But where part of the funds comprised in a marriage settlement (under which the husband took the first life interest) consisted of a bond to secure a sum of money lent by the lady to her intended husband, conditioned for repayment by him with interest in six months if he should be called upon to do so, it was held that time did not begin to run until the death of the husband, he being the person who was both bound to pay the interest on the bond, and entitled to receive the interest under the settlement. (Mills v. Borthwick, 35 L. J., Ch. 31; 13 W. R. 707.) Under the terms of a marriage settlement the owner was entitled until bankruptcy or insolvency to receive the interest of a fund. This fund was lent to him and he executed a bond to secure repayment, and judgment was entered on the bond. Held, that as regards the judgment, time did not begin to run until the insolvency. (Re Keay's Estate, I. R., 3 Eq. 659.)

In the year 1833, the plaintiffs, who were trustees of a marriage settlement, lent to the husband at interest some of the money settled to the separate use of the wife, on the security of the joint bond of the husband and the