Observations on the Limitation of Actions and Law Amendment Acts. 471 a member, and securing, while it is in his | become due, or next after an acknowledg- The number of the members of the Society is perhaps as great as could be reasonably expected since its establishment. A very small sum from one half of the law clerks of London, who cannot, as we conjecture, be less than 5,000, would constitute a fund sufficient to relieve the members in case of distress or sickness. Donations in aid of the objects of this Society, will be most thankfully received by Mr. B. B. Cross, Chairman of the Committee, 38, Southampton Buildings; Mr. Aldridge, Master's Office, K. B.; and by Mr. Battiscombe the Secretary, of whom the printed Rules may be had. OBSERVATIONS ON THE CLAUSES To the Editor of the Legal Observer. Considerable doubts have arisen amongst practitioners in expounding certain clauses relating to actions for the recovery of rents, This clause, which limits the action to six years after the rent shall have become due, or an acknowledgment in writing, is also distin66 arguishable from § 3, above referred to, inasmuch as the former (§ 42) expressly relates to rears of rent, or of interest, in respect of any sum of money charged or made payable out of any land or rent ;" and is not confined to the action of debt for rent upon indenture of demise or of covenant, as in the former §3, nor to any instrument whereby the rent shall be reserved or made payable, but extends to any action for rent. I conceive that the clause in question (§ 42) extends to all cases of arrears of rent, except the action of debt or covenant under § 3 (Law Amendment Act), and such other actions as the Statute of Limitations, 21 Jac. 1. c. 16, or the present Statute, 3 & 4 W. 4, for Limitation of Actions, &c. as do not reach in respect of the recovery of rent by action. The Statute of Jac. does not extend to actions of annuity (which the new Statute of Limitations does, vide § 1), or to the action of covenant, or debt on specialty, or to scire facius on a judgment; but only to actions of debt upon a lending or contract without specialty, or for arrearages of rent reserved on parol leases, which latter are by that Statute (Jac.) limited to six years. The other actions limited by that Statute to four and two years, do not apply to the present question. Having endeavoured to distinguish the incontained in the two recent acts above referred to. I consider these statutes by no means free tent of the legislature with respect to the from difficulty, and probably some new enact-nature of the actions for rent under the 3d. ments will be necessary to afford a key to the clauses in question. By the act for the amendment of the law, 3 & 4 W. 4. c. 42, § 3, it is enacted," that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, &c. shall be sued or brought within ten years after the end of the session, or within twenty years after the cause of action." The above clause, as far as it applies to the recovery of rent, relates only, as I conceive, to leases under seal executed agreeably to the statute of frauds, and upon which the action of debt or covenant might heretofore have been brought at any period; but which actions of debt and covenant are now limited to the period mentioned in the above section 3. I consider that as to the action of covenant, as the above clause stands, it applies to all deeds containing any covenant for which an action would lie for breach thereof. By the statute for limitation of actions and suits, 3 & 4 W. 4. c. 27. § 42, it is enacted, "that after the 31st December, 1833, no arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent, or interest, shall be recovered by any distress, action, or suit, but within six years next after the same shall have respectively sec. of Law Amendment Act, and 42d sec. of The description of rents comprised in the foregoing § 2 (the recovery of which is barred by a lapse of twenty years), is explained in the preceding § 1, as follows: The word 'ient' shall extend to all heriots, and to all services and suits for which a distress may be made, and to all annuities, and periodical sums of money charged upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole); and the person through whom another person is said to claim shall mean any person by, through, or under, or by 2H 4 472 The Property Lawyer, No. XXIII. THE PROPERTY LAWYER. CONSTRUCTION OF DEVISE. the act of whom the person so claiming became entitled to the estate or interest claimed as heir, issue in tail, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise; and also any person who was entitled to an estate or interest to which IN the case of Smart v. Clark, 3 Russ. 365, the person so claiming, or some person through the word "if," was read as if it had been whom he claims, became entitled as lord by written "when." The same construction was escheat," &c. contended for in the following case : — The question arose on the construction of the following clause in a will:-" I give and bequeath unto my mother, Mrs. Janet Murchison, the sum of 1007. sterling money, per annum, payable every six months during her natural life, and after her decease, to my sister, Mrs. Margaret Bartleman, that is to say, if my sister be a widow, but not otherwise; but to revert back to my child or children after her death, and that a sufficient sum for the above purpose shall be invested by my executors in the British funds." The testator also appointed his children his residuary legatees, Janet Murchison and Margaret Bartleman, who both survived the testator. At the date of his will, and the time of his decease, Mrs. Bartleman was a married woman, and she continued under coverture till some time after the death of Mrs. Murchison, when her husband having died, she filed her bill, claiming the annuity. The executors put in a general demurrer, which the present Vice Chancellor on argument allowed, and the plaintiff thereupon appealed. The terms "heriots," "services and suits," and "all annuities," are sufficiently definite; but there is much ambiguity in the general words "periodical sums of money charged upon or payable out of any land." Yet under these sweeping words the practitioner is left to discover what precise rents are intended to be distinguished under the above enactment, from those contained in § 3 of the Law Amendment Act, and § 42 of the Limitation of Actions Act, and especially as in the latter (§ 42), nearly the same words are adopted a. I take it for granted, however, that the words in question will admit of a construction as to all deeds, wills, and instruments in writing, by which any land is charged with the payment of any sum of money at stated periods, and that the person bringing the action or making the distress must claim as heir, issue in tail, tenant in dower, &c. &c. as specified in § 1 of the new Limitation Act, which I perceive extends to executors and administrators, to whom, it will be as well here to observe, special powers of distress are given for arrears of rent under §§ 37 & 38 of the Law Amendment Act, viz. The Lord Chancellor said: although in con§ 37. Executors or administrators of any struing bequests of personal estate, the same lessor or landlord may distrain upon the lands technical strictness does not prevail as in dedemised for any term, or at will, for the arrear-vises of real estate, the same rules are to ages of rent due to such lessor or landlord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime. $38. Such arrearages of rent may be distrained for after the end or determination of such term or lease at will, in the same manner as if such term or lease had not been ended or determined, provided that such distress be made within six calendar months after the determination of such lease, and during the continuance of the possession of the tenant from whom such arrears became due; provided also that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to distresses so made as aforesaid. Perhaps some of your intelligent correspondents can throw some new light upon the above clauses; for at present I think no one can deny that much perplexity arises out of them to the practitioner.b 26th Sept. great extent applicable, not only with a view to avoid a perpetuity, but also to determine with certainty the persons to whom the property is to go. It may, therefore, become necessary in construction, to supply by intendment, the words, "living at the time of the testator's death," in a gift of personal as well as of real estate. For example, in a bequest to the children of A., the words are confined to such of A's children as are living at the testator's death. So where the legacy is given at the determination of a particular estate, previously limited, as where the legacy is to A. for life, and after his decease, to the children of B.; the like rule of construction imported from the law as to real estates is allowed to operate, and it restricts the bounty to the children of B., who are living at the death of A., that being in the time when the interest is to vest in possession. A Court of Equity will not presume that a party who is not in esse is intended to take, unless such an intention be made plain, and put beyond dispute by the words of the will; and it is only following out the same principle to hold that a person, to whom a legacy is given in a particular character, and by a particular description, shall not be entitled to it, unless he be clothed with that character, and answer that description, at the moment when the legacy might vest in possession. This then is the first difficulty. Be Abstracts of Recent Statutes. 473 apposed, or take any oath or oaths before the Appointment of Sheriffs and Under-Sheriffs, sides, I greatly doubt, whether under the residuary clause, the testator meant to deal with the property during the intermediate period, while Mrs. Bartleman was a married woman, especially as he has not left that clause to provide for a case which it would much more naturally have covered, and which was much more obviously in his contemplation; I mean 3. Whenever any person shall be duly nomithe application of the fund in the event of Mrs.nated by his Majesty to be sheriff of any counBartleinan's death. The probability is, that ty in England or Wales, except the county the particular contingency which has taken palatine of Lancaster, the same shall be forthplace, never occurred to his mind. According with notified in the London Gazette, and a to the plain sense of the words, the bequest is, warrant in the form set forth in the schedule after the mother's decease, to the sister, pro-to this act shall be forthwith made out and vided she be a widow at the period when the signed by the clerk of the Privy Council, and interest is to vest, if at all. In general, a tes-transmitted by him to the person so nomitator does not provide for all cases. He may, however, have said to himself here, if my sister be a widow at the death of my mother, she shall have the annuity; but her husband will then see whether I have made a provision for her or not, and will act accordingly; and then, when she only takes it, she shall take it for her life, for I will not suspend the gift; I provide only for ordinary circumstances. The authority of Smart v. Clark is by no means broken in upon by this construction. The five years there specified had clearly reference to the non-claim only; but upon the death of the legatee at any time, the bequest over was to take effect. Appeal dismissed.-Bartleman v. Murchison, 3 Russ. & M. 136. ABSTRACTS OF RECENT STATUTES. SHERIFFS' REGULATION AND EXCHEQUER 3 & 4 W. 4. c. 99. THIS act passed on the 29th of August, 1833, and is intituled "An Act for facilitating the Appointment of Sheriffs, and the more effectual Audit and passing of their Accounts; and for the more speedy Return and Recovery of Fines, Issues, forfeited Recognizances, Penalties, and Deodands; and to abolish certain Offices in the Court of Exchequer.” Repeal of part of former Acts. nated and appointed sheriff as aforesaid; and the appointment of sheriff thereby made shall be as good, valid, and effectual in the law to all intents and purposes whatsoever as if the same had been made by patent under the Great Seal of Great Britain, or by any ways and means heretofore in use; and the sheriff and sheriffs so appointed as aforesaid shall thereupon, and upon taking the oath of office hereafter mentioned, have and exercise all powers, privileges, and authorities whatsoever usually exercised and enjoyed by sheriffs of counties in England and Wales, without any patent writ of assistance or other writ whatsoever, or entering into any recognizance by himself or sureties, and without payment of or being liable to pay any fees whatsoever for the same. 4. Provided that a duplicate of the said warrant shall, within ten days next after the date of the same warrant, be transmitted by the said clerk of the Privy Council to the clerk of the peace of the county for which such person shall be nominated and appointed sheriff, to be by the said clerk of the peace enrolled, and which he is hereby required to enrol and keep without fee or reward. 5. From the passing of this act every person so appointed sheriff as aforesaid shall, within one calendar month next after the notification of his appointment in the London Gazette, by writing under his hand, nominate and appoint some fit and proper person to be his undersheriff, and shall transmit a duplicate thereof to the clerk of the peace for the county, to be by him filed, and which he is hereby required to file, among the records of his office, and for which he shall be entitled to demand and have from such under-sheriff the sum of five shillings, and no more; and such appointment and duplicate shall not be liable to any stamp duty whatever. 1. That so much of 3 G. 1. c. 15, intituled "An Act for the better regulating the Office of Sheriffs, and for ascertaining their Fees, and the Fees for suing out their Patents and passing their Accounts," as authorizes certain officers to receive the fees named in the schedule thereto, and also the said schedule, and also of 3 G. 1. c. 16, intituled "An Act for 6. Every person so appointed sheriff and better enabling Sheriff's to sue out their Pa-under-sheriff as aforesaid, except the sheriffs tents and pass their Accounts," be repealed. 2. From the passing of this act it shall not be necessary for any sheriff or sheriffs of any county, city, or town in England or Wales to sue out any patent or writ of assistance, or to make or pay proffers, nor shall any bailiff or bailiffs of liberties in England or Wales be required to make or pay any proffers, nor shall he or they have any day of prefixion, or be of London and Middlesex and their undersheriffs, shall, before he enter upon the execution of his office, take the oath of office heretofore and now required by law, which oath shall be fairly written on parchment (without being subject to any stamp duty) and signed by him, and shall and may be sworn before the Barons of his Majesty's Exchequer or any of them, or any one of his Majesty's justices of the peace for the county of which he shall be appointed | caster, and Durham) shall within two calendar sheriff or under-sheriff; and the same shall be months next after the expiration of his or thereupon transmitted to the clerk of the peace their office, or in case of the death of any shefor the same county, who is hereby required to riff or sheriffs, the under- sheriff by him or them file the same among the records of his office, appointed shall within two calendar months and for which he shall be entitled to demand next after the death of such sheriff or sheriffs, and have from such sheriff or under-sheriff the transmit to the said commissioners for auditsum of five shillings, and no more. ing public accounts a just and true account under his or their hand or hands, of all sums received by such sheriff or sheriffs to or for the use of his Majesty, and of all sums paid or claimed by him or them, or on his or their behalf (save such sums as are or have been usually inserted and allowed in the bill of cravings), with all such particulars as shall be needful to explain the same: Provided that such undersheriff shall not be personally responsible for any sum or sums received by such deceased sheriff, but that the same shall be answered by the representatives of the said deceased sheriff, or otherwise in due course of law: Provided that the sheriff of Westmoreland shall yearly, within two calendar months next after the 1st of January in every year, transmit or cause to be transmitted to the said Commissioners for auditing the Public Accounts a like account under his hand, or the hand of his under-sheriff, of all suins paid by him to or for the use of his Majesty within or during the year of our Lord next preceding, and of all sums paid or claimed by him or on his behalf during the same period (save such sums as are or have been usually inserted in the bill of cravings), with all such particulars as shall be needful to explain the same. 7. Every sheriff of any county, city, liberty, division, town corporate, or place shall at the expiration of his office make out and deliver to the new or incoming sheriff a true and correct list and account under his hand of all prisoners in his custody, and of all writs and other process in his hands not wholly executed by him, with all such particulars as shall be necessary to explain to the said incoming sheriff the several matters intended to be transferred to him, and shall thereupon turn over and transfer to the care and custody of the said incoming sheriff all such prisoners, writs, and process, and all records, books, and matters appertaining to the said office of sheriff; and the said incoming sheriff shall thereupon sign and give a duplicate of such list and account to the sheriff going out of office, to whom the same shall be a good and sufficient discharge of and from all the prisoners therein mentioned and transferred to the said incoming sheriff, and the further charge of the execution of the writs, process, and other matters therein contained, without any writ of discharge, or other writ whatsoever; and the said incoming sheriff shall thereupon stand and be charged with the said prisoners, and also with the execution and care of the said writs, process, and other mat- 10. In case it shall be necessary for any ters, contained in the said list and account, as such sheriff or sheriffs, or his or their underfully and effectually as if the same writs and sheriff, to make oath or affidavit to any such process had been turned over by indenture account, or any article, matter, or thing relatand schedule; and in case any sheriff shall re-ing thereto, such oath or affidavit, except fuse or neglect at the expiration of his office to make out, sign, and deliver such list and account as aforesaid, and to turn over the process aforesaid in manner aforesaid, every such sheriff so neglecting or refusing shall be liable to make such satisfaction by damages and costs to the party aggrieved as he, she, or they shall sustain by such neglect or refusal. Auditing Sheriffs' Accounts. when the said commissioners shall require his or their personal examination before them, shall and may be sworn before any of the Judges of his Majesty's Superior Courts of Record at Westminster, or before any Commissioner for taking Affidavits in any of the same Courts, or before any Master or Master Extraordinary in the High Court of Chancery, or before any of his Majesty's Justices of the Peace. Regulation of Sheriff's Claims and Liabilities. 8. The accounts of the present and future sheriffs of counties, cities, and towns within England (except the counties palatine of Ches11. The claim of every sheriff or sheriffs for ter, Lancaster, and Durham) shall after the certain allowances usually called the Bill of passing of this act be examined and audited by Cravings shall, after the passing of this act, the Commissioners appointed or to be appoint-be preferred to the lord high treasurer or ed for auditing Public Accounts under and by the commissioners of his majesty's treasury virtue of the 25 G. 3. c. 52, 46 G. 3. c. 141, for the time being, who, or any three or more and 1 & 2 G. 4. c. 121; and all the powers and of whom, shall and may grant a warrant for provisions now in force of the same acts shall the allowance of the same in the account of extend and be applicable to the examination, such sheriff or sheriffs, or for the payment of audit, and discharge of the accounts of such such sum or sums of money in respect thereof sheriff's by the said commissioners (so far as as they shall think reasonable in that behalf. those powers and provisions are applicable thereto, and are not varied by this act). 12. From 10th October next no sheriff or sheriffs shall receive or shall be chargeable 9. Every person and persons who now are with the collection and receipt of quit reats, or who hereafter shall be sheriff or sheriffs of vicecomital or viscontiel rents, and other rents any county, city, or town within England (ex- or payments issuing out of or payable to his cept the said counties palatine of Chester, Lan-majesty in respect of any honors, manors, Abstracts of Recent Statutes. 475 lands, tenements, or hereditaments in England | fines last before mentioned, or any of them, or Wales, but the same (except such as shall the receiver general of alienation fines shall be released pursuant to the provision next provide and keep books, in which he shall, in herein-after contained) shall hereafter be con- the English language, in a common and legisidered as part and parcel of the land revenue ble hand and character, and as to sums and of the crown, and shall be under the care, ma-dates in words at length, enter and keep a true nagement, and direction of his majesty's com- and full account of every pre and post fine missioners of woods, forests, and land revenue, received by him, and in what town, parish, or who shall have and exercise the same powers place the premises are situate in respect of and authorities for collecting and enforcing which the same fine or fines shall have been the payment thereof as are given to or vested paid or received; all which books shall at all in them for collecting and enforcing payment seasonable times be open to the inspection and of any other part of his majesty's land revenue examination of all and every body corporate by any act or acts now in force concerning the or politic, person and persons, claiming to be entitled to or interested in the same fines or any of them, and his and their bailiff or bailiffs, agent or agents. same. 13. And many of the said rents being very ancient, and having become obsolete, the lord high treasurer or the commissioners of his majesty's treasury, are empowered, by warrant under his or their hands, to remit, release, and discharge all or any of the same rents, and the arrears thereof, or any part thereof. 18. The lord high treasurer or any three of the commissioners of his majesty's treasury, by warrant under his or their hand, from time to time, may order and direct the said receiver general to pay such of the same fines, or any 14. So much of the 32 G 2. c 14, intituled of them, or any part thereof, to any body politic "An act for the more regular and easy collect- or corporate, person or persons, entitled to ing, accounting for, and paying of post-fines the same, or to his, her, or their bailiff or baiwhich shall be due to the crown, and for the liffs, agent or agents: Provided that, notwithease of sheriffs in respect of the same," as re-standing such payment, any body politic or quires the receiver of prefines at the alienation corporate, person or persons, aggrieved thereoffice to become bound by recognizance to by, shall and may apply by petition in the pay, or to pay to any sheriff on producing manner herein-after mentioned against the his quietus, the sum total of the post-fines party or parties to whom such payment shall mentioned in such quietus, and as requires have been made, to restore or refund the sums such receiver to become in like manner bound by him or them so received. to pay, or to pay unto all and every the lords of liberties, proprietors and grantees of postfines under the crown, or to their lawful bailiffs or attorney, on producing the respective schedules of the foreign apposer or clerk of the estreats of the Court of Exchequer, the sums of money in such schedules contained, be and the same is hereby repealed. 19. Provided, that in case the commissioners of his majesty's treasury shall neglect, refuse, or decline to order the payment of any fine or fines received by the receiver general of alienation fines which shall be claimed by any body corporate or politic, person or persons, or if any party shall be aggrieved by any order for payment made by the said commissioners, 15. No sheriff or sheriffs of any county, city, it shall be lawful for any such body corporate or town within England and Wales shall from or politic, person or persons, to apply by henceforth receive or be charged or chargeable petition, in a summary manner, to the Lord with any fine or fines usually called pre-fines Chief Baron and the other barons of his Maand post-fines, payable on alienation of lands jesty's Court of Exchequer, setting forth the or other hereditaments, but the same fines nature of the claim or title of the petitioner or shall be received by the said receiver general petitioners; and thereupon the said barons of of alienation fines, who shall pay and apply the his Majesty's Court of Exchequer shall and they same to such person or persons, in such sums, are hereby authorized to proceed to call the and in such manner as the lord high trea-proper parties before them, and to hear and surer or the commissioners of his majesty's treasury shall, by warrant under his or their hands, order or direct, except as to any such fine or fines, sum or sums of money, as shall or may be ordered to be paid by any order of his Majesty's Court of Exchequer in pursuance of the provision herein-after contained. 16. Provided, that nothing herein contained shall extend to the pre-fines and post-fines arising within the county palatine of Lancaster, which last-mentioned pre-fines and post-fines shall be received and accounted for in like inanner as hath heretofore been accustomed. Keeping Account of Fines. 17. For the better information of all persons interested in or who may claim title to the determine the matter of the said petition, and to give such costs and to make such order or orders therein as they shall consider just; and in case payment be thereby ordered of any sum or sums of money in respect of such fines, or any of them, by the said receiver general of alienation fines, he is hereby authorized and required to pay the same according to such order or orders. Auditing Accounts. 20. After the passing of this act the accounts of the said receiver general of alienation fines shall be audited and examined by the said commissioners appointed or to be appointed for auditing public accounts under and by virtue of the said herein-before recited acts passed in the twenty-fifth and forty-sixth years |