ments urged in support of it. If the writ of assise had been the only remedy (a), the law would have supplied another, and perhaps the one by action of debt. But, besides the remedies in equity (b), the remedies by distress, and, where applicable, by writ of annuity (c), or, since the Common Law Procedure Act, 1852, just noticed, by writ of summons, still remain, and the reason for not permitting in such cases a personal action, with the exception just mentioned of a satisfactory reason, would still be applicable; so that the remedy by action of debt is not necessarily required by reason of the abolition of the writ of assise. The only remedy at law now, for such a rent when created by deed, and not secured by bond or by covenant, is either by distress or by writ of annuity (d), or, since the Common Law Procedure Act, 1852, by a writ of summons in lieu of a writ of annuity as a personal action; but, when created by will (e), is by distress only. When created, however, by the former mode the effect of proceeding by one of such remedies would still seem to be to exclude the exercise afterwards of the other (f). When by dis tress, or writ of annuity, debt. Where a rent-seck is also secured by the covenant of covenant or the grantor, the grantee may maintain for it an action of either covenant (g), unless the covenant be a mere collateral one (h), or debt (i). A rent-seck for life granted out of chattels real (j), Issuing out of or for years out of freehold lands (k), is a chattel only, Ex. 56. (h) Randall v. Rigby, 4 M. & W. 130. (i) Varley v. Leigh, 2 Ib. 446; 17 L. J., Ex. 289, S. C. (j) Butt's case, 7 Co. 23; Co. Litt. 147 b. See also Kelly v. Clubbe, 3 Brod. & B. 130; James v. Salter, 2 Bing. N. C. 505; 3 Ib. 544; Paget v. Foley, 2 Ib. 679. (k) Brendloss v. Philips, Cro. Eliz. 895. chattels real. In equity. and consequently might be recovered by action of debt (1). But unless the rent appear to be issuing out of chattels real the grantor of it was taken to have a fee in the lands charged, and then the grantee's taking a freehold is a bar to such an action (m). For an annuity properly so called, that is, a yearly payment charging the person only of the grantor (n), a writ of annuity, and not an action of debt, during the existence of the annuity, was formerly the proper remedy (o). Since the Common Law Procedure Act, 1852 (p), however, all personal actions are commenced by writ of summons, and a plaintiff need not specify the form of action he uses, and causes of action of whatever kind, except replevin or ejectment, may be joined in the same suit (q). In general the remedies for a rent given by the instrument creating it must be relied on by the grantee (r); and mere difficulty in pursuing them at law is not sufficient to enable him to recover the rent in equity (s). In certain cases, however, as where the land out of which the rent issues (t), or the nature of the rent (u), is uncertain, or where there are no demesne lands on which to distrain (r), or where there is or may be nothing upon the land to distrain (y), or where the pro perty charged is of an incorporeal nature (z), or the origin of the title to the rent be unknown, or it be doubtful whether there be any remedy at law, or, if any, whether it be practically available (a), or the legal remedies have been rendered useless or difficult to be exercised (b), or the owner of the rent has been deprived of his remedy or some of his remedies at law (c), or the remedy at law fails, as being neither so complete nor so effectual as that in equity (d), or where the remedy in equity is the only means by which the property can be made available (e), or where the rent has been paid without question for a very great length of time and the difficulty of obtaining relief at law would be almost insurmountable (ƒ), or where proceedings by the owner of the lands charged are calculated to confuse and complicate the title of the owner of the rent (g), or if the remedy be defeated by fraud (h), or, generally, be rendered defective or insufficient by any of those contingencies which occasionally obstruct the fair operation of contracts (i), the rent will be recoverable in equity, and be raised by a sale or mortgage of the property charged (k). In Roberts v. Hughes (1), the court, alluding to Cupit v. Jackson as inconsistent with former cases, said, there (z) Thorndike v. Allington, 1 C.C.79; Berkley v. Earl of Salisbury, cit. 2 Bro. C. R. 518. (a) Archbishop of Dublin v. Lord Trimleston, supra. (b) Brady v. Fitzgerald, 12 Ir. Eq. Cas. 273; White v. Smale, 22 Beav. 72; White v. James, 26 Ib. 191; Stevelly v. Murphy, 2 Ir. Eq. Ca. 448. (c) Roberts v. Hughes, Beatty, 417. (d) Cupit v. Jackson, 13 Pri. 721; Manly v. Hawkins, 1 Dru. & Wal. 363; Fay v. Fay, 2 Jones, Ir. Ex. R. 350; White v. James, 26 Beav. 191; Hall v. Hurt, 2 J. & H. 76. On Cupit v. Jackson, see Graves v. Hicks, 11 Sim. 551; Hall v. Hurt, supra. (e) Hall v. Hurt, supra. (f) Stevelly v. Murphy, supra. (g) Archbishop of Dublin v. Lord Trimleston, 2 Dru. & War. 535; 12 Ir. Eq. Ca. 251. (h) Davy v. Davy, 1 Ch. C. 147. (i) Roberts v. Hughes, supra; Brady v. Fitzgerald, supra; Cremen v. Hawkes, 8 Ir. Eq. Ca. 153, 503. (k) Cupit v. Jackson, 13 Pri. 721; Hall v. Hurt, 2 J. & H. 76. (1) Beatty, 417. For whom remedy in equity available. When after rent extinct it by acknow ledgment. is more reason to doubt the accuracy of the reporter than to suppose the judgment intended to overrule former cases. This observation, however, would seem to be directed to the fact that the rent was a rent-charge for which the remedies provided by the deed creating it were a power of distress, and a power to enter on the lands charged and to receive the rents until satisfied the arrears, and not to the case as an authority for the general principle on which courts of equity afford relief in the cases just specified. The remedy in equity is available not only for the executors of the grantee after his death for arrears accrued in his lifetime (o), but also for the grantee himself during his life for the arrears accruing to him, although the property charged be limited, subject to the charge, to a person for life with remainders over (p). In Graves v. Hicks (q) indeed Shadwell, V.-C., said, that where the grantee is living and the property charged is limited for life with remainders over, unless a sale be necessary for some other purpose, the arrears will not be so raised. But in Hall v. Hurt (r), Wood, V.-C., held, that if a sale be the only means by which the property can be made available for satisfying the arrears, they will be so raised during the life of the grantee, although the property be so limited. If a rent be paid by the owner of the land out of may be revived which it issues to a person claiming and receiving it wrongfully for twenty years and upwards, the right of the rightful owner of the rent will be extinguished, but, being a mere right, may, perhaps, as between him and such a person be revived after the expiration of that period, either by the payment, or by a simple acknowledgment, made to such owner. (0) Cupit v. Jackson, supra. See also Graves v. Hicks, 11 Sim. 526. (p) Hall v. Hurt, 2 J. & H. 76. (g) 11 Sim. 526, 551. (r) Supra. on rent, and advowsons. This enactment, however, extends to only land, rent As to charges and advowsons, and also, by interpretation, to charges on land which are an interest in land, and therefore land within the act (s), but not to charges on rent or advowsons, although charges on rent are within the sect. 40. rent extinct, personal remedy may be It may be here observed that where there is in the When, after grant of an annuity for life an express covenant for the payment of it, although the annuity, as a charge on the land, may be extinguished, yet the remedy for it on the covenant may be still enforced (t). enforced. demption. The effect of an acknowledgment of the title of a Right of remortgagor, or of his right of redemption, and of a right to a charge on land, when made after the expiration of the period of limitation applicable, would seem to be the same as in the case of land or rent. before 3 & 4 A charge on land which, on the passing of the 3 & 4 Charge on Will. 4, c. 27, had been extinguished, cannot be revived land extinct by a mere acknowledgment made since that statute Will. 4, c. 27. was passed. Thus where a judgment in Ireland was, by the effect of the 8 Geo. 1, c. 4, extinguished when the former act was passed, an acknowledgment within twenty years after the passing was held not to revive such judgment (u); and it could not be revived by sci. fa. (x). In Kirkwood v. Lloyd (y), the question arose what is Not so extinct. the effect of payment of interest on a judgment after the lapse of twenty years, not as between the person paying and the person paid, but as between third parties and the person paid, and the court said that was a question of difficulty, and that there was no decision to show (8) Sect. 1, 3 & 4 Will. 4, c. 27. (t) Manning v. Phelps, 10 Ex. 59; 24 L. J., Ex. 62, S. C. (u) Morrough v. Power, Longf. & T. 644; Brady v. Fitzgibbon, 1 Jebb & S. 503; Cloncurry v. Piers, 9 Ir. Eq. R. 407; Kemmis v. Mack- (x) Farran Cl. & F. 319. v. Beresford, 10 (y) 12 Ir. Eq. R. 596. |