Sects. 2 and 3. Sect. 7 partially so only. diction. No reasonable ground therefore appears for considering this statute to be prospective only. If indeed it were so considered many titles to real property would be thrown into great uncertainty (m). The act generally, and most of the clauses, really are retrospective; for instance the second and third clauses are clearly so (n). The first of its principal enactments (o) has been held to have a retroactive operation (p); and, as a necessary consequence, those enactments which are subordinate and ancillary to that principal enactment have such an operation (g). So other sections grounded on, although not strictly subordinate or ancillary to, such principal enactment (r). In all or most of these cases the circumstances contemplated by the statute were entirely or partly existing at the time when it passed or came into operation, and proceedings to establish the right were taken afterwards. The retroactive operation of section 7 is, however, only partial—that is, in only those cases where the tenancy at will existed at the time when the act passed, or is created subsequently (s), and not in those cases where before the passing of the act the original tenancy (m) See Goodall v. Skerratt, 3 (n) Per Kindersley, V.-C., 3 (p) Nepean v. Doe d. Knight, (4) Sect. 3, see Goodall v. Sherratt, 3 Drew. 220. Sect. 7, but only in some cases, Doe d. Goody v. Carter, 9 Q. B., N. S. 863; Doe d. Dayman v. Moore, 9 Q. B. 555; Doe d. Palmer v. Eyre, 17 Q. B. 366; Doe d. Lansdell v. Gower, 17 Q. B. 589. Sect. 8, Doe d. Jukes v. Sumner, 14 Mee. & W. 39. Sect. 9, Doe d. Angell v. Angell, 9 Q. B., N. S. 328. Sect. 12, Culley v. Doe d. Taylerson, 11 Ad. & E. 1008; Woodroofe . Doe d. Daniel, 15 Mee. & W. 769; Goodall v. Skerratt, sup.; Tidball v. James, 29 L. J., N. S., Exch. 91, explained in Murphy v. Murphy, 11 L. T., N. S. 189; Stewart v. Marquis of Conyngham, 1 Ir. Eq. Rep., N. S. 534. Sect. 13, Doe d. Palmer v. Eyre, sup. See also, 16 Mee. & W, 712. Sect. 16, Devine v. Holloway, 14 Moore, P. C. C. 290. (r) Sects. 21, 22, Goodall v. Skerratt, sup. (s) Doe d. Goody v. Carter, 9 Q. B., N. S. 863; Doe d. Dayman v. Moore, 9 Q. B., N. S. 555; Doe d. Palmer v. Eyre, 17 Q. B., N. S. 366; Doe d. Lansdell v. Gower, 17 Q. B., N. S. 589. had been determined and a new one created and was existing when the statute passed (t). Had a retroactive operation been given to this section in such cases, a right which existed at the time when the act passed would have been taken away. In Doe d. Evans v. Page Lord Denman said (u), this section is in terms only applicable to the case of a future, or at most of an existing, tenancy at will, and not to the case of a tenancy at will which had been determined, and was not existing, when the act passed. A different construction, even if the words permitted it, would cause the greatest hardship; for a person, who as the law stood before the passing of the act was in ample time to bring his ejectment and recover property that undoubtedly was his, would by the operation of the statute be suddenly deprived of the means of asserting his right, there being no clause for the postponement of the operation of the statute for such a period as would enable persons, who would be otherwise affected by it, to assert their rights. In Devine v. Holloway (x), the court said that the Sect. 16. observations of the court in Doe d. Evans v. Page, as to tenancies at will determined before the act passed, are inapplicable to the 16th section. It has been contended that the 17th section is prospec- Sect. 17. tive only, and that therefore, notwithstanding the case of Doe d. Carbyn v. Bramston (y), which treated the section as retrospective, the question that this section applies to only those disabilities arising subsequent to the act is still open (z). But if the 16th section be retrospective, the 17th section is so also. It is admitted that section 16 (t) Doe d. Evans v. Page, 5 Q. B. 767; Doe d. Bennett v. Turner, 7 Mee. & W. 226; Doe d. Burgess and Harrison v. Thompson, 5 Ad. & E. 532; Doe d. Thompson v. Thompson, 6 Ad. & E. 721; Doe d. Birmingham Canal Co. v. Bold, 11 Q. B. 127; Rundall v. Stevens, 2 Ell. & B. 641; Hodgson v. Hooper, 6 Jur., (x) 14 Moore, P. C. C. 290. (z) 2 Smith's L. C., 5th edit. Sect. 23. Sections 40 and 42 not retro active. is so; but the 17th section is not a substantive enactment, but a qualification of the 16th section, and, therefore, as the 16th section is retrospective so is the latter. Although standing alone, its terms, independent of its relation to the preceding section, may be in themselves prospective only. Whether the 23rd section be retroactive has been doubted. In Penny v. Allen (a), Lord Cranworth. L. C., said in did not apply there even if it could be construed as having a retrospective operation, and that the object of the section was to give effect to acts of a tenant in tail against remaindermen and reversioners, and to give effect to assurances which, although they were effectual to bar the issue, were ineffectual to bar those entitled in remainder. There are prior clauses in the statute which show what the operation is as to the issue, and those clauses seem to be studiously worded, so as to be confined only to the case of persons entitled after the estate tail. Lord St. Leonards considers this clause as not having a retroactive operation. "It could hardly be held," he said (b), "to apply to a case where the twenty years had wholly elapsed before the passing of the act, because not only the language of the section does not embrace such a case, but the substitution for Recoveries Act makes good defective fines and recoveries, where such was the intention, and gives confirmation in certain cases in express words to voidable estates already created, or thereafter to be created, by tenant in tail." Two of the principal enactments, however (c), have been considered as not having a retroactive operation. In these cases, the circumstances contemplated by the act were existing, and proceedings had been taken to (a) 7 De Gex, M. & G. 426. (c) Sect. 40, Furran v. Otte well, 2 Jebb & Sy. 97. Sect. 42; see Paddon v. Bartlett, 3 Ad. & E. 684. establish the right before the statute came into operation. The 3 & 4 Will. 4, c. 42, has been, and in the prior chapters of this Book some of its enactments have been, frequently considered in connection with the statute which has been the subject of the last preceding observations, and therefore the judicial opinions which have been expressed upon the policy and the interpretation of this chapter 42 will be here noticed. "The sole object of the legislature," said Wilde, C. J. (d), speaking of this statute, "was to discharge parties from demands that might and ought to have been enforced at an earlier period." "This statute," said the court(e)," is certainly in pari materiâ with the 21 Jac. 1, c. 16, and had it been framed in this way-that all the provisions of the statute of James shall extend to actions on specialties, with this difference, that such actions shall be brought within twenty years of the cause of action instead of six years-it could scarcely have been said that the construction put upon the statute of James did apply to cases arising under the statute of William." The same court, on a subsequent occasion, also said, "the language of this statute is the same, mutatis mutandis, as that used in the statute of James, and the object seems to have been to add actions upon specialties and some others to those mentioned in that statute. It would, therefore, seem but reasonable that the same construction should be put upon the provisions of the latter statute as has been put upon the former, so far as such a construction may be applicable. ... The same equitable construction which has been applied to cases of actions upon contracts under the statute of James should be applied to actions upon contracts under the 3 & 4 Will. 4, c. 42." In Paget v. Foley (ƒ), (d) 4 C. B. 665. (e) 4 Exch., N. S. 629. (f) 2 Bing. N. C. 290. The policy and the interpretation of 3 & 4 Will, 4, c. 42. Tindal, C. J., said, the words of the 3rd section of this statute are not merely negative words, but import an affirmative also; not merely that a plaintiff may not sue for rent accruing more than ten years before, but that he may sue for all that time to come for rent in arrear at the time the act passed. "This," said the Vice-Chancellor of England (g), "is a remedial act, and I cannot help thinking that it is absolutely necessary for this court to adopt many of the provisons of it as well as of the 27th chapter of the same session, changing of course the mere formal language, aud adapting it to the practice of this court. I think that if, after this statute had passed, an action could have been brought on the judgment, there would be no question but any judge would have allowed the jury to exercise their discretion upon the point of interest." "The policy of a law," said Wigram, V.-C. (h), "which, in the absence of acknowledgment of a debt, discharges both the person and property of the debtor, and limits the demand of the creditor after a certain period of non-claim, is intelligible and sound; but the language of an act of parliament must be very clear which could persuade me that the legislature, expressly intending to keep the debt alive, and to preserve the remedies against the person of the debtor, intended that the securities for the debt in the hands of the mortgagor himself should be discharged from the contract between the parties, and be made liable to the debts circuitously only through the judgment upon the bond or covenant." |