On the Statute of Limitations, as to Rent.

ON THE STATUTES OF LIMITA-
TION, AS TO RENT.

To the Editor of the Legal Observer.
Sir,

In answer to your correspondent S-n, 1
beg to submit the following observations, and
hope that they may tend to elucidate the sub-
ject, and remove his doubts.

3

materia ought to be construed together and made to correspond, rather than contradict each other.

Sn says, that actions of annuity are limited by c. 27. § 42: and this he infers from the construction given in § 1 to the term "rent"; but here I beg leave to differ from him; the words are, "All annuities and periodical sums of money charged upon or payable out of any land," or in other words, a rentcharge payable annually, or at any other periods; but the action of annuity does not lie for annuities charged upon and payable out of land, but for a yearly payment of a certain sum of money, charging the person of the grantor only; Co. Lit. 144b; though where the grant charges the land as well as the person, an action of annuity is maintainable; Lit. § 219; yet it is only in respect of the personal charge: and therefore where no express contract, there can be no action of annuity. Co. Lit. 144 a. And the grantee having elected to charge the person, and such election appearing on record, as commencing an action of annuity, the grant ceases to charge the land. Lit. $219, and Coke on that section. The annuity, therefore, in respect of which an action of annuity lies, is not "an annuity charged upon or payable out of land," and is not comprehended under the term "rent," in c. 27; and thus it apThe second objection of S- -n is, that 3 & 4 pears that the action of annuity is not within W 4. c. 27. § 42, and c. 42. § 3, are contradic-any of the Statutes of Limitation. tory; the one proving that no arrear of rent shall be recovered six years after due, the other that an action upon an indenture for rent may be brought within twenty years after the cause of such action.

Sn, in the first place, thinks that there is a discrepancy between the limitation of the remedy for recovery of rent (viz. twenty years), provided by 3 & 4 W. 4. c. 27. § 2, and the time limited for the recovery of arrears of rent, under § 42 (viz. six years); but I apprehend this discrepancy will vanish upon rightly understanding the meaning of "rent," which is rather the return or service than the specific sum of money due; thus several monies due at several times, if under the same reservation, are the same rent, though different arrears; thus, under § 2, at any time within twenty years after he has been dispossessed (see § 3), a party may distrain or bring an action for the rent of which he was so dispossessed, though not for the arrear or sum which at that time fell due, but only for those arrears which have become due within six years, by § 42.

The following positions, I think, may be taken as the clear result of the three sections alluded to:

1. Where a party having a right has received no rent for twenty years, his remedy for the rent is barred altogether.

2. Where an arrear of rent has been due six years, it cannot be recovered, but the subsequent arrears may, provided the party has received rent within twenty years.

3. Where the rent is due upon an indenture, an action may be maintained on the indenture within twenty years after rent due.

Whilst upon this subject, it may not be out of place to notice a few other points which have occurred to me as remarkable in these statutes.

I think also that these provisions will not be found irreconcileable if attentively considered nor need we resort to the doctrine of C. M. W. (see p. 479), that the latter enactment virtually repeals the former, pro tanto; though if they were contradictory it clearly would. See Rex v. Middlesex, 2 B & Ad. 818. Cap. 27, only relating to real property, considers rent as a service issuing out of or a charge upon lands, and the 42d sec. must, therefore, be taken only as referring to the remedies incident to it in that capacity, viz. distress and debt, upon the personal duty of the tenant to pay it: but 1st. The legal remedy for a freehold anthe action upon the indenture is founded upon nuity, devised out of a freehold estate in land, the solemn contract under seal, and is not so is taken away by 3 & 4 W. 4. c. 27. § 36, abomuch an action for the rent, as for the non-lishing real actions; an assise being the only payment of money covenanted to be paid: it is an additional security, and entirely personal, since it does not interfere with or merge the action founded on the duty of the tenant in respect of his occupation and receipt of the profit of the land; debt on a demise being sustainable notwithstanding a lease by indenture, and covenant by the tenant to pay. Nor can I suppose that the Legislature intended to render the security of a deed unavailing, or to place covenants for payment of rent in a different and less advantageous position than other covenants. If this mode of construction be too special, supposing c. 27 stood alone, yet when considered with c. 42, it will, I apprehend, be found correct, since statutes in puri

action heretofore sustainable therefore; Webb v. Jiggs, 4 M. & S. 113; so that the grantee can now have no action therefore, but can only distrain, within twenty years after his title accrues, for six years arrears.

2d. There is a difference between 3 & 4 W. 4. c. 42. § 4, and the corresponding sections in 21 Jac. 1. c. 16, and 4 Ann. c. 16; in the latter statutes imprisonment of the plaintiff being a disability which defers the limitation, but not in the former.

3d. The 7th section of 3 & 4 W. 4. c. 42, not extending to the 4 Ann. c. 16, which renders defendants being beyond the seas a disability in those actions limited by 21 Jac. 1. c. 16; it seems that if a defendant be in Ireland,

4

Defects of the Uniformity of Process Act. -On the Friendly Societies Acts. Man, Guernsey, Jersey, Alderney, or Sark, at | order the sheriff to bring in the body within the time of an action of assumpsit, &c. accru- the usual number of days, similar to that in ing against him, an action might be commenc- the case of returning a writ; and, as in that ed within six years after his return; see Anon. case, if the sheriff do not comply within the 1 Show. 91, per Holt, C. J.; though if the plain- proper period, let him be liable to an attachtiff be at any of those places it would be other- ment on the first day of the ensuing term. wise.

These notes may be useful to practitioners, and may perchance meet the eye of some higher power, from whom an alteration may emanate, since there is nothing more perplexing than a diversity in the law, where reason is uniform. D. G. Middle Temple, Oct. 22, 1833.

There is another matter on which I would ask your patient hearing, and which, I think, calls loudly for alteration. I am told that, on a computation, in six out of every ten actions, the defendants are discharged from custody on entering a common appearance, by reason of the insufficiency of the affidavit to hold to bail. I happened to be, one day, waiting in the Judge's room at chambers, when in three actions the defendants were discharged on this ground, in the space of as many minutes. I am willing to admit that, in some cases, this is the result of negligence; but generally it will be found to be owing to conflicting decisions at chambers, and more than all, to a total want of reporting those decisions. There is a class of men who make it their business to search To the Editor of the Legal Observer. for affidavits, and get the defendants discharged Sir, on the ground of insufficiency. Their charge THE " Uniformity of Process" Act has un-is two guineas, if successful; if otherwise, doubtedly effected some benefit, by facilitating the progress of actions in the vacation; but it appears to me not to go far enough.

DEFECTS OF THE UNIFORMITY
OF PROCESS ACT.

BODY RULES.-AFFIDAVITS OF DEBT.

Grounded on that act, a Judge, in vacation, has now the power of granting an order to the sheriff to return a writ; and, by the general rule of the Courts, if the sheriff should not ́obey the order, he would be liable to an attachment on the first day of the succeeding term, notwithstanding he might in the mean time have returned the writ All this is very in

they receive nothing. This "no cure, no
pay," system, is a great obstruction to the
creditor in recovering a just debt; it increases
the expenses of the action; and is, at the same
time, not only irksome, but injurious to the
honourable practitioner; it ought, at once, to
be amended.
G. W.

To the Editor of the Legal Observer.

Sir,

telligible and very proper, as far as it goes; ON THE FRIENDLY SOCIETIES ACTS. but supposing the sheriff did return the writ agreeably to the Judge's order, that the defendant put in his bail and the plaintiff excepted thereto, but that the bail did not ultimately justify, what step, I would ask, is the plaintiff to pursue, if he wishes to proceed against the sheriff? The warning, as it is termed, at the foot of the writ of capias, states that if the defendant omit to put in special bail as required, the plaintiff may proceed against the sheriff, or on the bail-bond; but how can he avail himself of this choice of proceeding? A Judge, in vacation, cannot, I apprehend, grant an order to the sheriff to bring in the body; and if the plaintiff is bound to wait until the next term before he can rule the sheriff, what becomes of the choice of proceeding alluded to?

IT gives me unfeigned satisfaction that you have, at the present period, called public attention to the evils which deeply afflict a nu. merous class of society united in Friendly Societies, the number of which societies, by the last returns to Parliament made a short time since, it appears is about 16,000, probably containing two million persons, united for the laudable objects stated by your correspondent J. W., in your Number for the 31st August last.

In considering the object proposed to be effected by J. W., it appears to me, that_the united wisdom of our master minds, in calcuIt may be urged, I know well, that the lating our risks and in coming to mathematiplaintiff is at liberty to take an assignment of cal certainty thereupon is needed: it cannot the bond; but in most cases the practitioner be expected of the humbler portion of the would decline to accept it, particularly in Mid-community to calculate correctly the contindlesex, where the officers are sometimes content to run great risks as to bail-bonds. There are such things as actions against sheriffs for not taking good bail-bonds, but I fear the plaintiffs rarely, if ever, reap any advantage from them.

I have no wish to make an objection without at the same time pointing out a remedy-it is this-Let a Judge, in vacation, have power to

gencies, or the probabilities of sickness, or the duration of human life and also the contingencies arising on the other allowances to which your correspondent has invited public_attention: nay, with profound deference I add, what universal experience proves, that even the magistrates to whom this work has hitherto been committed for the benefit of the societies, professedly do not understand it: there

On the Friendly Societies Acts.

fore they require the societies to obtain the certificate of actuaries to satisfy them; and the actuaries, having no admitted or proved data for this particular class of society before them, certify one set of tables at one time, and another set of tables at another time, so that probably no two actuaries, and no two sets of tables, of all the 16,000 societies, agree. I have read many of the societies' rules, both of London and of different parts of the country, and find they all materially differ from each other. Now, Sir, if you add to the above the vast expences, both legal and consequential, besides the endless disputes among the societies about the working of the present system of enrolling and of re-enrolling rules in all cases when, either through capricious or good but mistaken motives, our acts of parliament are altered-I do not say amended-which expence is probably considered by the societies as the least of the evils inflicted by the present laws, surely something ought to be done to remedy this state of things.

When the revising barrister, or some other The complex and highly perplexing nature person, shall have answered this public appeal of the present laws having been thus made ap-in your columns, I propose to answer him by parent, my primary object is to open in your valuable miscellany a concise and brief discussion on the present state of the tables which govern both benefit societies and the charitable institutions of our country, by inviting answers to the following queries, viz.a

6

Changes in the Law made during the last Session of Parliament.

The act recites the second section of the

the reform act; and that they would then | sider, further duties are allotted to the gladly leave political matters to their superiors, Puisne Judges in Bankruptcy. and themselves attend to their proper business; but in the mean time, and until the evils of which I complain predominate, it cannot be expected the public mind will be satisfied. PRO BONO PUBLICO.

Oct. 18, 1833.

CHANGES MADE IN THE LAW IN
THE LAST SESSION OF PARLIA-
MENT, 1833.

No. XIII.

last Insolvent Act, 7 G. 4 c. 57, whereby
that Court is constituted; and also the first
section of the Bankruptcy Court Act, 1 &
2 W. 4. c. 56; and that Judges have been
appointed under the latter of these acts;
and "
that consistently with the vacation
necessarily allowed to the Commissioners
of the first mentioned Court, and with the
time occupied by them while they are on
their several circuits, intervals occur in the
sittings, during which prisoners who would

THE ACT FOR AMENDING THE BANRRUPTCY otherwise be entitled to their discharge,

COURT ACT.

3 & 4 W. 4. c. 47.

64

cannot obtain the same;" and "that there are not a sufficient number of such Commissioners to enable them to extend their THIS act is a verification of the objections circuits into Wales;" and that the busiwhich we made to the Bankruptcy Court ness of the said Court of Bankruptcy will Act; and were we disposed to pride our-allow time for the Judges of that Court, selves on our prophetic powers, we have other than the Chief, some one or more of here some reason for self-gratulation. them to discharge part of the duties vested From the first period at which the project in the Commissioners of the said first menof that bill was broached, we asserted that tioned Court." It is therefore enacted, that one of its chief faults was raising up a new the King may direct the Judges, other than Court, and giving them much too little to the Chief, of the Court of Bankruptcy, to do; and more recently, in reconsidering act as a Commissioner, or as Commissioners, the subject, we insisted that it was clear, at such times and for such purposes as that if the Vice Chancellor could dispatch may be specified in any such commission.

the petitions in bankruptcy, together with all his other heavy business, it was unnecessary to appoint four Judges, whose only duty should he to hear those petitions; and we then hoped that the matter would receive attention in the proper quarter, and that two instead of four Judges would be appointed. It soon became notorious that the Court of Review was very little employed, and that our objections, which were also strenuously insisted on by the persons best acquainted with the subject, Mr. Basil Montagu and others, were substantial ones: and we certainly think it to the credit of the Lord Chancellor that he has given way to them, and endeavoured to make his own creation as perfect as possible. The vacancy caused in the Court of Review by the death of Mr. Justice Pell, was not filled up; and by two acts passed in the present session, the learned lord has endeavoured to find some further employment for the remaining three learned judges. By the act for remodelling the Privy Council, 3 & 4 W. 4. c. 41, stated in our sixth volume, p. 337, the Chief Judge in Bankruptcy is appointed a member of "The Judicial Committee of the Privy Council;" and by the present act, which we shall now con

a Sce 3 L. O. 366, April 7, 1832.

By section 2, the said Judges are to have the same powers and privileges as the Commissioners of the Insolvent Debtors' Court, whether in London or on circuit.

By sect. 3, the circuits of the Insolvent Debtors Commissioners are hereafter to be extended into Wales; and the Insolvent Court is empowered to order prisoners in any gaol in Wales to be brought either before one of the Commissioners or a Puisne Judge of the Court of Bankruptcy, acting by virtue of this act.

By sect. 4, the Clerks of the Peace of the principality of Wales are to bring to the place of hearing petitions, the duplicate of petition, schedule, and other necessary books and papers, and shall be entitled to the fees and allowances allowed to Clerks of the Peace in England.

By sect. 5, the Lords of the Treasury are authorized to direct the payment of the travelling expenses of the Judges and their

officers.

By sect. 6, the Court of Review may direct the Registrars and Deputy Registrars of the Court of Bankruptcy to attend the Bankruptcy Judges in the discharge of their duties under this act.

By sect. 7, power is also given to the King, by royal warrant, to authorize any

Municipal Corporations Commission.-Abstracts of Recent Statutes.

purposes, over the whole community within their municipium or free town.

one or more of the Judges of the Court of Bankruptcy to exercise the same jurisdicThe enquiry to be instituted under the above tion and powers as by the 1 & 2 W. 4. c. commission appears, however, to embrace other 56, are given to any three of the Judges; objects than city and town corporations, as and also to direct at what times the Court will be seen by referring to the operative words of Review, and the Judges and Commis- of the recital contained in J. G.'s query, by sioners of the Court of Bankruptcy, shall which the commissioners are also directed to respectively hold their sittings. enquire into the several local jurisdictions exBy sect. 8. the Court of Review is au-isting within the limits of all corporate towns thorized to order that costs may be taxed by one of the Registrars or Deputy Registrars of the Court of Bankruptcy, instead of one of the Masters in Chancery. By this last section, it will be observed that sec. 5 of the 1 & 2 W. 4. c. 56. is altered.

By this act it will be seen, that new, and perhaps not very pleasant duties, are imposed on the Puisne Judges of the Court of Review. Probably their assent to the additional labour was obtained before the passing of the act: if it had not been, it might remain to be seen how far the omnipotence of Parliament could force a Judge to perform the duties of another Court; and whether, if he pleased to decline to act, he could be compelled to do so. may be observed, that the present Master of the Rolls is expressly exempted from the new duties given by the Chancery Regulation Act to his office, except with his assent, although they merely increase his labours in his own Court.

in England and Wales,' &c.

This power of course extends to all Local Courts at least this is what I understand to be the legal meaning of local jurisdictions.' I should observe, that I have not at present seen any copy of the commission Relying therefore upon J. G.'s recital, I consider that the powers of the Commissioners (provided the commission be legal for all or any of its purposes), extends only to such municipal corPorations as the word imports, viz., cities or towns; and also to all Courts possessing local jurisdiction or the administration of justice, within the limits of such corporate cities or towns.

As to the great legal question touching the validity of these Commissions, and which has

been disputed in former times, I refer J. G. to 1 Vol. Blac. Com. c. 18, title CorporaIt tions. S-n.

21st October.

ABSTRACTS OF RECENT STATUTES.

MUNICIPAL CORPORATIONS COM

MISSION. a

TREATMENT OF INSANE PERSONS.
3 & 4 W. 4. c. 64.

THIS act is intituled "An Act to amend an
Act of the Second and Third Year of His pre-

Treatment of Insane Persons in England," and passed on the 28th August, 1833. It recites the 2 & 3 W. 4. c. 107; and enacts

THE primary object of this commission, ap-sent Majesty, for regulating the Care and pears to be an enquiry into such Corporations, as are comprehended under the term Municipal,' i. e. cities and towns having corporate powers or jurisdictions.

The definition of the word 'Municipal,' warrants this construction. It is synonymous with municipalis, from municipium, a city or town corporate.b

Towns corporate, are a species of lay corporations, of which there are others of a minor description, such as incorporated trading companies, and others for special purposes; but the latter are in the nature of private societies, having no jurisdiction beyond the management of their own affairs; whereas, cities and towns corporate (i. e. municipal corporations) are public bodies, having jurisdiction for various

1. That whensoever the justices in session shall, under the provisions of the said recited act, appoint a time and place for the visitors to meet for the purpose of executing the duties imposed on them by the said act, every such appointment shall be made as privately as may be, and in such manner that no proprietor or resident superintendent of any house to be visited shall at any time have notice of the day or time appointed for the visitation of such house.

2. The clerk of the Metropolitan Commissioners in Lunacy shall preserve every notice and copy of order and medical certificate transmitted to him when any patient is received into any house licensed under the said act, and also every notice of death, removal, or discharge of any patient or patients transmitted to him under the said recited act or this act, and that every clerk of the peace shall also preserve every duplicate copy of order