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after the disability shall have ceased, or the party shall have returned fro beyond the seas, as the case may be ; and the plaintiff in such action mas, by way of replication, state such acknowledgment, and that the action was brought within the time aforesaid, in answer to a plea of this statute.

Sect. 7. No part of the United Kingdom, nor the Isle of Man, nor thChannel Islands, being dominions of the Queen, are to be deemed beford seas within the meaning of this act.

By 19 & 20 Vict. c. 97 (already citer, ante, p. 605), s. 10, no persone persons entitled to any action limited by the acts 3 & 4 Will. 4, c. 27, s. 42, or Id. c. 42, s. 3 (ante, pp. 638, 639,) shall be entitled to any further time to sue by reason only that such person, or one or more of such persons, was or were beyond seas at the time when the cause accrued ; and by sect. 11, in case of joint debtors, no further time is to be allowed for suing, by reason only that some of them were beyond seas when the cause accrued ; but 2 judgment recovered in such case will not per se be a bar to an action against the absent debtor or debtors after their return. Sect. 14 (cited ante, p. 609), also provides that part payment by one debtor shall not deprive his co-debtor of the benefit of the statute.

By the J. Act, 1873, s. 25, (2), no claim by a cestui que trust against bis trustee on an express trust is to be barred by any Statute of Limitations See, however, 37 & 38 Vict. c. 57, s. 10, ante, p. 639. But although the claim is not barred by the statute, yet where there has been laches on the part of the plaintiff, his remedy may be limited to six years' arrears of interest. Thomson v. Eastwood, 2 Ap. Ca. 215, D. P. See further ante, p. 603

The effect of the 3 & 4 Will. 4, c. 27, s. 42, and c. 42, s. 3 together, is that no more than six years' arrears of rent or interest in respect of any sum charged on, or payable out of any land or rent shall be recovered by way of distress, action, or suit, other than and except an action of covenant or debt on the specialty, in which case the limitation is 20 years. Paget v. Foley, 2 N. C. 679 ; Sims v. Thomas, 12 Ad. & E. 536; Grant v. Ellis

, 9 M. & W. 113; Manning v. Phelps, 10'Exch. 59; 24 L. J., Ex. 62 ; Barryat v. Woodman, L. R., 3 Eq. 313.

On the other hand, by 37 & 38 Vict. c. 57, s. 8, ante, p. 638, in an action on the covenant in a mortgage deed, to pay the mortgage debt, the period of limitation has been reduced to 12 years, Sutton v. Sution, 22 Ch. D. 511, C. A.; so in an action on a bond given as collateral security with a mortgage, Fearnside v. Flint, 22 Ch. D. 579 ; and so in an action on a judgment

, even although a suggestion has, within 12 years, been entered on the roll under C. L. P. Act, 1852, s. 129. Ex parte Tynte, 15 Ch. D. 125.

As to what cases fall within the stat. 3 & 4 Will. 4, c. 42, s. 3, and what within stat. 21 Jac. 1, c. 16, s. 3, vide ante, pp. 602, 603.

As to the applicability of the Statutes of Limitations to breaches of corenants for title, vide post, pp. 657, 658.

Mere delay in enforcing a specialty debt for any period within 20 years affords no bar to its recovery. Collins v. Rhodes, 20 Ch, D. 230, C. A.

A general replication never let in the subsequent promise, acknowledgment, or payment, as in actions for simple contract debts ; for proof of a promise, not under seal, did not support the declaration ; and if, under seal

, it was another and different cause of action. If there were a sufficient written acknowledgment within 3 & 4 Will. 4, c. 42, s. 5, it must have been specially replied. K'empe v. Gibbon, 9 Q. B. 609. And this is still the rule. It must be shown which of the three sorts of acknowledgments,- viz., writing, payment, or satisfaction in part—is relied on. Forsyth v. Bristowe, 8 Exch. 347; 22 L J., Ex. 70. The acknowledgment need not imply a promise, or be in itself a cause of action. Moodie v. Bannister, 4 Drew. 432; 28 L. J., Ch. 881; and an admission by the executors of the obligor in their answer to a suit inter alios is enough. 16.

Statutes of Limitation.

641 In an action of covenant for 4001., due on a mortgage deed, to which the plea of Stat. of Limitations was pleaded, plaintiff replied an acknowledgment within 20 years, and put in a deed of conveyance by defendant to trustees for

payment of “all mortgages, debts, &c.," in which it was recited that the land was “subject to a mortgage to W. H. (plaintiff) for 4001. and interest :'' held insufficient, because it did not acknowledge an existing debt, but only an outstanding mortgage. Howcutt v. Bonser, 3 Exch. 491. "In an action by mortgagee against mortgagor, for principal and interest, after the lapse of 20 years, defendant pleaded the statute, to which plaintiff replied an acknowledgment in writing, and also part payment, within 20 years: within 20 years the defendant had assigned his equity of redemption, by a deed reciting payment of interest “up to the date thereof :" held, that this was evidence of payment within 20 years : held, also, that payment of interest by the assignee after assignment, was payment by the agent” of the defendant. Forsyth v. Bristowe, 8 Exch. 716 ; 22 L. J., Ex. 255. It was there considered that the acknowledgment, under sect. 5, need not be made to the creditor or agent, though that is required by stat. 3 & 4 Will. 4, c. 27, 8. 42, and 37 & 38 Vict. c. 57, s. 8, ante, p. 638.

On a plea that the “debt and cause of action " did not accrue, infra, &c., pleaded to a bond, declared upon, without showing the condition, and issue thereon, it appeared at the trial to be a post obit bond, and that the cestui que vie died within 20 years : held, that the plaintiff was entitled to recover, for the real cause of action arises on the condition. Tuckey v. Hawkins, 4 C. B. 655. To a declaration on a bond, without stating the condition, which was for payment of an annuity, the defendant pleaded that the causes of action did not accrue within 20 years ; on which plaintiff joined issue, and suggested breaches of non-payment of arrears within 20 years. On the trial it appeared that there had been also breaches of condition 20 years ago, by payments of the annuities at irregular times, all of which, however, had been accepted by the plaintiff : held, that a new cause of action arose on each breach of the condition ; that the previous breaches had been waived by acceptance, and that the plaintiff was entitled to a verdict on the issue. A mott v. Holden, 18 Q. B. 593 ; 22 L. J., Q. B. 14. A bond conditioned to replace stock is not within sect. 5 of the act, which relates only to conditions for payment of money ; therefore an acknowledgment that it was not replaced, and a payment, within 20 years, of money conditioned to be paid in lieu of dividends, if the stock should not be replaced, will not rebut the statute so far as relates to the breach of condition to replace. Blair v. Ormond, 17 Q. B. 423; 20 L. J., Q. B. 444. But, the condition to pay periodically the money due in lieu of dividends, was held to continue in force, and that plaintiff was entitled to damages for a breach for non-payment within 20 years. S. C.

M. died indebted on a bond, in which the heirs were bound, having devised his estates in strict settlement ; payment of interest by the devisee in possession, who took a life estate, was held to prevent the devisee in tail, in remainder, from setting up the statute when he came into possession. Roddam v. Morley, 1 De G. & J. 7; 26 L. J., Ch. 438 ; accord. Pears v. Laing, L. R., 12 Eq. 41. But see Coope v. Cresswell, L. R., 2 Ch. 112.

As to the application of the Statute of Limitations to actions by and against executors; vide post, Part III., Actions by and against executors.

The following are some of the most material issues arising in actions on eases or other conveyances of real property.

Evidence where plaintiffsues as assignee of reversion.] Where the lessor at the time of granting a lease has no title, but afterwards acquires one, the lease and reversion take effect in interest, and an action will lie by

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the assignee of the reversion on the covenants in the lease. Webb v. Austin, 7 M. & Gr. 701, and 728, n.; Sturgeon v. Wingfield, 15 M. & W. 224. And in Cuthbertson v. Irving, 4 H. & N. 742 ; 28 L. J., Ex. 306, it was decided that a mortgagor of premises, having leased them to the defendant, by an instrument which did not, and afterwards assigned the reversion by an instrument which did, declare his title, the defendant was estopped from objecting to the equitable title of the assignee. In this last case the interest of the plaintiff was purely one by estoppel. The lessee is not estopped from showing that the lessor had not a fee simple in the land demised, provided he does not assert that he had no estate in the land which would give effect to the deed. Weld v. Baxter, 11 Exch. 816; 25 L. J., Ex. 214 ; 1 H. & N. 568 ; 26 L. J., Ex. 112. If the lessor's want of title appear on the lease, both parties are estopped from asserting a legal reversion, and the covenants are in gross, and not assignable. Pargeter v. Harris, 7 Q. B. 708 ; and see Saunders v. Merryweather, 3 H. & C. 902 ; 35 L. J.

, Ex. 115 ; and further, post, Action for recovery of land by landlord, and Replevin-Tenancy of the plaintiff. Where a lessee makes an underlease for more than his term, and reserves rent, this rent is assignable by way of estoppel, and the assignee can sue the underlessee for the rent without attornment. Williams v. Hayward, 1 E. & E. 1040; 28 L. J., Q. B. 374. The assignee of part of the reversion in all the land may sue.

Co. Litt. 215 a ; 1 Wms. Saund. 241 a (5) (c); so the assignee of the reversion of part of the land. Twynam v. Pickard, 2 B. & A. 105 ; and so a reversioner who has assigned the reversion of a part only. Swansea, Mayor, dr. of, v. Thomas, 10 Q. B. D. 48, cited, post, p. 646.

Evidence on defence of assignment over of reversion by plaintif.] The lessor cannot bring an action of covenant on the lease, after he has parted with his reversion, for any breach of a covenant running with the land, which has accrued subsequently to the grant of the reversion, but the action can be brought only by the assignee of the reversion ; for the stat

. 32 Hen. 8, c. 34, has transferred the privity of the contract, together with the estate in the land, to the assignee of the reversion. 1 W'ms. Saund. 241 f (6). The defendant may therefore plead that the breach accrued after the assignment by the lessor of his reversion ; but as the stat. 32 Hen. 8, c. 34, only applies to leases by deed, such a defence is inapplicable to a claim on a parol lease. Vide ante, p. 317. For the same reason the defence applies only to covenants which run with the land Stokes v. Russell, 3 T. R. 678; affirmed, 1 H. Bl. 562 ; Pargeter v. Harris, supra.

Of a similar nature is the question, who is the proper person to sue on the death of the lessor, owner in fee, for breaches of covenant which have accrued in his lifetime? It is laid down that where there are covenants real, that is, which run with the land and descend to the heir, though there may have been a formal breach in the ancestor's lifetime, yet if the substantial injury has taken place since his death, the heir, and not the executor, is the proper plaintiff

. But the executor may sue for a breach of covenant during the testator's lifetime, grounded on the special damage thereby caused to the testator's personal estate ; 2 Wms. Saund. 181 c, (h) ; Kingdon v. Nottle, 1 M. & S. 355 ; Id. v. Id., 4 M. & S. 53; King v. Jones, 5 Taunt. 418; 4 M. & S. 188, Ex. Ch.; Raymond v. Fitch, 2 Č. M. & R. 588, 598 ; or, even although there be no such special damage. Ricketts.r. Weaver, 12 M. & W. 718. But, where the covenant does not run with the land, the executor alone can sue. Raymond v. Fitch, supra.

The rights of a mortgagor to sue are now governed by the J. Act, 1873, S. 25, (5), ante, p. 281.

Evidence on Defence of Assignment over of Term by Defendant. 643

Evidence on defence of assignment over of term by defendant.] In an action against the assignee of a term on a covenant in the lease, he may plead that he assigned over the term before breach ; for the assignee is only liable for those breaches which have occurred while he is assignee ; Taylor v. Shum, 1 B. & P. 21 ; Paul v. Nurse, 8 B. & C. 486 ; but for those breaches he may be sued even after he has parted with the term. Harley v. King, 2 C. M. & R. 18. The assignee is not liable for breaches committed before the assignment to him. S. Saviour's v. Smith, 3 Burr. 1271 ; and see Coward v. Gregory, L. R., 2 C. P. 153. If the defence be traversed, the defendant must prove the assignment: that is, that the whole term has been legally transferred by him to another. The 8 & 9 Vict. c. 106, s. 3, requires that an assignment should be proved by an instrument under seal. But as an underlease by the defendant for the whole of his term amounts to an assignment; Parmenter v. Webber, 8 Taunt. 593 ; Beardman v. Wilson, L. R., 4 C. P. 57; and the above section allows leases not exceeding three years to be by parol, it follows that a good assignment of such a lease may be made by way of underlease, without deed or writing. Where the defendant proved that, although he had executed the assignment, it had not been delivered to his assignee, having remained in the hands of the defendant's solicitor, who had prepared it for, and by order of, the assignee, and who had a lien upon it, it was held sufficient. Odell v. Wake, 3 Camp. 394. It would be otherwise if delivered as an escrow, or rejected by the assignee. The defendant need not prove notice to the plaintiff of the assignment; Pitcher v. Tovey, 1 Salk. 81; 4 Mod. 71; nor the assent of the assignee to the assignment, for assent is presumed. Leach v. Thompson, 1 Show. 296; Freem. 2nd ed. 503, (6); see Siggers y. Evans, 5 E. & B. 367 ; 24 L. J., Q. B. 305; and Hobson v. Thelluson, L. R., 2 Q. B. 642. But his express refusal may, of course, be shown; and perhaps his incapacity to accept from infancy or some other cause. A reply that the assignment was fraudulent will not be supported by proof that the assignment was to a beggar in order to get rid of liability. Lekeux v. Nash, 2 Str. 1221; Taylor v. Shum, supra; Onslow v. Corrie, 2 Madd. 330. But if there was real fraud, as a secret trust for the benefit of the assignor it would probably defeat the defence, if such fraud were replied. See S. C.; Hyam's case, 1 D). F. & J. 75 ; 29 L. J., Ch. 243 ; Ex parte Bunn, 2 D. F. & J. 297; 31 L. J., Ch. 4; and Ex parte Bugg, 2 Dr. & Sm. 452 ; 35 L. J., Ch. 43.

An assignee who takes the demised premises from the lessee by indenture indorsed on the lease, “subject to the payment of the rent and the performance of the covenants and agreements reserved and contained in the lease," is not liable in covenant to the lessee for rent which the lessee has been called on by the lessor to pay after the assignee has assigned over. Wolveridge v. Stewart, 1 Cr. & M. 644, Ex. Ch.

Evidence on defence traversing assignment to plaintiff.] Where the plaintiff sues as assignee of the reversion, and the defendant traverses the title as stated, it will be incumbent upon the plaintiff to prove it, by showing the mesne conveyances from the original lessor. See Carvick v. Blagrave, 1 B. & B. 531.

Where a lease, made by cestui que trust under a power in a settlement, with covenants for rent, &c., with the lessor and "his assigns,” recited the equitable estate of the lessor, it was held that “ assigns” meant assigns of the settlor, and that the assignee of the legal reversion, though not assignee of the lessor, was entitled to take advantage of the covenants and condition of re-entry ; Greenaway v. Hart, 14 C. B. 340 ; 23 L. J., C. P. 115; and that the lessee was not estopped from disputing the lessor's title to sue. Ib. The question who are assignees of the reversion, so as to be entitled

to sue by virtue of the 32 Henry 8, c. 34, is usually decided upon the pleading

The assignee of the reversion cannot sue for breaches of covenant which accrued before the assignment to him. Martyn v. Williams, 1 H. & S. 817 ; 26 L. J., Ex. 117. And although 1 Vict. c. 26, s. 3, enacts that a right of entry for condition broken shall pass by will, yet this does not extend to an action on a covenant broken in the testator's lifetime.

Evidence under defence of surrender.] A surrender of a lease, such as could not be created without writing, must be by deed, 8 & 9 Vict. c. 106, s. 3, unless the surrender be by act and operation of law. The mere destruction of the sealed lease by consent of both parties was, at law, no surrender of the lease by operation of law; and debt lies for rent notwithstanding, for the estate is not divested. Ward, Ld. v. Lumley, 5 H. & N. 87 ; 29 L. J., Ex. 322.

As to what amounts to a surrender by act and operation of law, see ante, pp. 306, 307, and Furnivall v. Grove, 8 C. B., N. S. 456 ; 30 L. J.. C. P. 3.

Evidence under defence of eviction.] An action of covenant for nonpayment of rent can be defeated by proof of an eviction of the defendant from the premises in question, either by the lessor or one whose title is better than bis. Vide ante, pp. 310, 311, where the cases as to what amounts to an eviction and the effect thereof are collected.

Where there has been an eviction, by title paramount, from part of the land demised, the lessor may sue the assignee of the lease in covenant for the apportioned part of the rent, because the action is brought on the privity of estate. Stevenson v. Lambard, 2 East, 575. But the court intimated that, in an action of covenant brought by the lessor against his lessee it would have been otherwise, as that action is founded on the privity of contract, citing Bro. Contract, pl. 16; Moor, 116. An eviction from part of the subject-matter of the lease was held to be no defence to an action for breaches of covenants to repair, and not to assign or underlet, it not appearing that the defendant had given up possession of the whole. Hodgskin v. Queenborough, Willes, 131, n. (b); Newton v. Allin, 1 Q. B. 518. And it would seem that the tenant, in such a case, cannot discharge himself from his liability to such covenants, by surrendering the residue of the premises, from which he has not been ousted to the landlord, if the latter refuse to accept possession of them. Morrison v. Chadwick, 7 C. B. 266.

Evidence on defence of bankruptcy of the plaintiff.) In an action of covenant for rent the defendant pleaded that the plaintiff became bankrupt after the rent was due. The plaintiff replied that he let the premises in question as trustee for a third person, and had no beneficial interest in the rent. It was held sufficient, under this replication, to show that the plaintiff had from time to time been in the habit of paying over the rent to the person who was stated to have the beneficial interest in the premises, and that there was no need of proving an express declaration of trust under the Statute of Frauds. Houghton v. Kænig, 18 C. B. 235 ; 25 L. J., C. P. 218.

Evidence where defendant is sued as assignee of the lessee.] Where an issue is taken upon the assignment it will be necessary to prove, either a transfer of the interest by deed, or facts from which an assignment may by law be inferred. Where the statement of claim states generally that the term has

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