the judgment signed or entered of record be beyond the seas, then 3&4 Will. 4, error may be brought, provided the proceedings be commenced and c. 27, s. 42. prosecuted with effect within six years after the return of such party

from beyond seas. 15 & 16 Vict. c. 76, s. 147 (16 & 17 Vict. c. 113,

s. 168, Ireland).

Bills of review have been generally disallowed after twenty years Bills of have elapsed from the time of pronouncing a decree which has been review. signed and inrolled, by analogy to the statute 10 & 11 Will. 3, c. 14, (4 Burr. 1963; 1 Br. P. C. 95; 5 Br. P. C. 460; 6 Br. P. C. 395.) But persons under any of the disabilities specified in that statute are allowed the further period of five years after their removal. (Lytton v. Lytton, 4 Br. C. C. 458.) No petition of appeal from any decree Appeal to or sentence of any court of equity in England or Ireland will be re- House of ceived by the House of Lords, after two years from the signing or in- Lords. rolling, or extracting of such decree or sentence, and the end of fourteen days from the first day of the meeting of parliament next ensuing such two years, unless the person entitled to such appeal be within the age of twenty-one years, or covert, non compos mentis, imprisoned, or out of Great Britain and Ireland; in which case such person may bring his appeal within two years next after his full age, discoverture, coming of sound mind, enlargement out of prison, or coming into Great Britain or Ireland, and fourteen days from the first day of the meeting of parliament next ensuing such two years. In no case shall any person be allowed a longer time, on account of mere absence, to lodge an appeal, than five years from the date of the last decree or interlocutor appealed against. (Standing Order, H. L. No. 118; Lords' Journ. 24th May, 1725; 22nd June, 1829; 6 Cl. & Fin. 976. See De Burgh v. Clark, 4 Cl. & Fin. 562.)

A decree establishing a charge was carried into execution, though not proceeded on for forty years, where there was an acknowledgment within twenty years of the subsistence of the charge. (Barrington v. O'Brien, 1 Ball & B. 173; 2 Id. 144; see 19 Ves. 587.) A decree to carry into execution an erroneous decree being reversed, the cause was remitted, with leave to amend the bill, by adding parties and making a better case as to the original claim, notwithstanding the lapse of sixty years from the date of the deed by which the debt was secured, and of forty years from the date of the erroneous decree, as between the plaintiff creditor and the debtor there is no presumption from lapse of time, in such a case and upon such a state of the pleadings, that the debt has been paid; but other creditors, whose debts ought to have been provided for by the decree, might have a right to raise that question. (Hamilton v. Houghton, 2 Bligh, 169.)

XI. LIMITS OF THE ACT.
Spiritual Courts.

tend to the

XLIII. That after the said thirty-first day of Decem- Act to exber, one thousand eight hundred and thirty-three, no spiritual person claiming any tithes, legacy or other property, for courts. 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 (q).

(9) The mode of recovering personal legacies in the ecclesiastical Recovery of legacies.

N

3&4 Will. 4, courts is stated in 3 Hagg. Eccl. R. 161, 162. A legatee cannot c. 27, s. 43. maintain a suit in the ecclesiastical court to recover his legacy when

Act not to extend to

Scotland, nor

there are only equitable and not legal assets. (Barker v. May, 9 B. & C. 489; 4 M. & R. 386.) No action at law lies 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, Id. 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. on Executors, 15131518, 3rd 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 2001., 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 2001. so bequeathed. (Braithwaite v. Skinner, 5 Mee. & W. 313; 3 Jur. 1054.)

SCOTLAND AND IRELAND.

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

in Ireland.

* Lege present.

(r) The stat. 6 & 7 Vict. c. 54, which was passed on the 10th Au

gust, 1843, recites the 30th, 31st, 32nd and 34th sections of 3 & 4 6 & 7 Vict. Will. 4, c. 27:

c. 54, s. 1. Sect. 1. "And whereas the hereinbefore in part recited act, save Provisions of in so far as it relates to any such right as last aforesaid, is already in 3 & 4 Will. 4, force in Ireland, and it is expedient to extend to Ireland the whole c. 27, relating to of the provisions of that act; be it therefore enacted, that after the advowsons, 1st day of January, 1844, the several clauses and enactments in the &c. extended said act passed in the session of parliament held in the 3rd and 4th to Ireland. years of the reign of his late majesty King William the Fourth contained, and hereinbefore recited, relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice (the clause thereof providing that the said act so far as it relates to any such right shall not extend to Ireland, always excepted,) shall extend and apply to Ireland, and that as fully and effectually as if the same clauses and enactments were here repeated, substituting for the said date of the 31st day of December, 1833, the said date of the 1st day of January, 1844."

those provi

The 2nd section, after reciting part of the 1st section of 3 & 4 Certain Will. 4, c. 27, as to the meaning of " 'person through whom another words in claims," "person," "number," "gender," enacted, "that the sions to be same words and expressions shall in this act be similarly interpreted, similarly extended and applied." (See ante, p. 122.) interpreted.

limited for

action.

Sect. 3. "And whereas doubts have been entertained whether the Removing several periods by the said act limited for bringing any quare impedit doubts as to or other action, or any suit to enforce a right to present to or bestow the periods any ecclesiastical benefice as the patron thereof, apply to the case of bringing any a bishop claiming to have right to collate to or bestow any ecclesi- quare impedit astical benefice in his diocese, and it is expedient that all such doubts or other should be removed; be it therefore enacted, that the several periods limited by the said act or by this act for bringing any quare impedit or other action, or any suit to enforce a right to present to or bestow any ecclesiastical benefice, shall apply to the case of any bishop claiming a right as patron to collate to or bestow any ecclesiastical benefice, and that such right shall be extinguished in the same manner and at the same periods as the right of any other patron to present to or bestow any ecclesiastical benefice: provided always, that nothing herein contained shall be deemed to affect the right of any bishop to collate to any ecclesiastical benefice by reason of lapse."

of Roman

Sect. 4. "And whereas by an act passed in the Irish parliament Provisions in the session held in the 17th and 18th years of the reign of King for the cases Charles the Second, intituled 'An Act for the explaining of some Catholic Doubts arising upon an Act, intituled "An Act for the better Execution of his Majesty's gracious Declaration for the Settlement of his shall hereKingdom of Ireland, and Satisfaction of the several Interests of Ad- after conventurers, Soldiers and other his Subjects there;" and for making 18 Car. 2 (1).

some Alterations of and Additions unto the said Act for the more speedy and effectual Settlement of the said Kingdom,' it was enacted, that certain advowsons and rights of patronage, and the rights of nomination, presentation or collation to or donation of certain ecclesiastical benefices or promotions, which had been forfeited by certain Irish Papists or Popish recusants, should vest, remain and continue in his majesty, his heirs and successors, until such Irish Papist or Popish recusant, or the right heir of such Papist or recusant, should come to church and receive the sacrament according to the rites of the church of England, and from and after such conformity should be again revested in the person so conforming and his heirs and whereas by an act passed in the 2nd year of the reign

:

patrons who

form.

of her majesty Queen Anne, intituled An Act to prevent the further 2 Anne, c. 6. Growth of Popery,' it was enacted, that where any Papists, or persons

6 & 7 Vict. c. 54, s. 4.

Act not to

commenced

professing the Popish religion, did or should claim, enjoy or possess any advowson or advowsons of churches, right of patronage or presentation to any ecclesiastical benefice, or where any Protestant or Protestants did or should hold, claim, enjoy or possess any advowson or advowsons of churches, or right of patronage or presentation to any ecclesiastical benefice or benefices, in trust or for the use and benefit of any Papist or Papists whatsoever, that every such advowson and right of patronage or presentation should be thereby ipso facto vested in her majesty, her heirs and successors, according to such estates as such Papist had in the same, until such time as such Papist, or the heir or heirs of such Papist, should take a certain oath and subscribe a certain declaration and abjuration prescribed by and set forth in the said act, and should conform to the church of Ireland as by law established; be it enacted, that no possession under any presentation by the crown, or collation by the ordinary, which may have taken place by reason of the said act of the 18th year of the reign of his majesty King Charles the second, or of the said act of the 2nd year of the reign of her majesty Queen Anne, during the nonconformity of any such patron professing the Roman Catholic religion, shall be deemed an adverse possession within the meaning of this act against the right of any such patron or his heirs, or any person claiming by, through or under him or them; provided, that in all cases in which any patron shall have conformed to the said united church within sixty years before the passing of this act, or shall hereafter conform thereto, such patron, or any person claiming by, through or under him, shall not be barred from bringing any such quare impedit or other action or suit, for the purpose in the said first herein recited act mentioned, before the expiration of sixty years, to commence and be computed from the day on which such patron shall have so conformed as aforesaid."

Sect. 5. "Provided always, and be it enacted, that this act shall not apply to suits be prejudicial or available to or for any plaintiff or defendant in any action or suit already commenced, or on or before the said first day of January, 1845, to be commenced, relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland."

before 1st January, 1845.

Recited act

The stat. 7 & 8 Vict. c. 27, recites the 6 & 7 Vict. c. 54, s. 5:— "And whereas doubts have arisen as to whether under the said herein before recited provision the time therein adverted to for limiting any action or suit relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland was to expire on the 1st day of January, 1844, or on the 1st day of January, 1845 and whereas it is necessary to remove such doubts, and to not to affect explain and amend the said herein before recited provisions of the any action, said recited act, and to further amend the said recited act:" it is declared and enacted, "that the said recited act shall not be prejudicial to or available for any plaintiff or defendant in any action or suit already commenced, or on or before the said 1st day of January, 1845, to be commenced, relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland."

&c. com

menced before 1st of January,

1845, relating to any right to presenta

tion.

When ac

tions within prescribed limits are

Sect. 2. "And be it enacted by the authority aforesaid, that if and when any action or suit relating to any right to present to or bestow any church, vicarage or other ecclesiastical benefice in Ireland already commenced, or which shall hereafter be commenced within the limitations prescribed by the said recited act or this act, shall become abated by the death or marriage of any party thereto, it shall and parties, new may be lawful to and for the plaintiff or plaintiffs therein, or the heir at law or the personal representative of the plaintiff or plaintiffs therein, according to the alleged estate or title of such plaintiff or plaintiffs in respect of the subject matter of such actions or suits, or

abated by deaths of

actions may be com

menced.

for the person or persons claiming to be entitled in remainder or re- 7 & 8 Vict. version expectant upon the estate of such plaintiff or plaintiffs to the c. 27, s. 2. right to present to or bestow the church, vicarage or other ecclesias. tical benefice in Ireland for which such action or suit shall have been so commenced, to bring a new action to enforce his, her or their right to present to or bestow such church, vicarage or other ecclesiastical benefice in Ireland, provided such new actions shall be commenced within twelve calendar months from the abatement of such preceding action or suit, anything in the said recited acts or either of them or in this act contained notwithstanding." (See 8 & 9 Vict. c. 51.)

XII. OF THE LIMITATION OF ACTIONS ON SPE

CIALTIES.

debt on spe

The third section of the 3 & 4 Will. 4, c. 42, enacts, "that all Limitation of actions of debt for rent upon an indenture of demise, all actions action of of covenant or debt upon any bond or other specialty, and all ac- cialties, &c. tions 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 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.

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; ante, p. 244.)

An action of covenant for rent in arrear may be brought within the Twenty time limited by 3 & 4 Will. 4, c. 42, s. 3, and is not limited to six years' arrears years by the 42nd section of 3 & 4 Will. 4, c. 27. Tindal, C. J., after of rent and annuity observing that the stat. 3 & 4 Will. 4, c. 27, was not proposed to in- secured by clude rents reserved on leases, (see ante, pp. 141, 142,) proceeded, deed may be "however, it is not necessary to give an opinion on the point; for, recovered. on comparing the 42nd section of 3 & 4 Will. 4, c. 27, with the 3rd