3 & 4 Will. 4, c. 27, s. 40. (10) ACKNOW LEDGMENTS IN WRITING. Who is agent. By whom an acknowledgment may be made. half his debts to A., and the other part charged with the payment of the other half of his debts to B., payments by A. of interest on a bond debt of the testator did not keep alive the debt against B. (Dickenson v. Teusdale, 1 D. J. & S. 52). If estates A., B., and C. are included in one mortgage, and payments of interest are made out of the rents of A., these payments are sufficient to keep alive the remedy of the mortgagee against estates B. and C. (Chinnery v. Evans, 11 H. L. C. 115). See also Pears v. Laing, 12 Eq. 41. And see further, the case quoted under R. P. Lim. Act, 1837, ante, p. 174; the Civil Procedure Act, 1833, s. 5, post, p. 219; and under sect. 8 of the R. P. Lim. Act, 1874, post, p. 212. Payment of interest has been presumed when the hand to pay and to receive such interest is the same (see cases quoted ante, p. 194). Part-payment by the administrator out of a particular asset which has been recovered by him within the statutory period, will not revive the right to sue for general administration, which was at the time of payment barred (Re Johnson, Sly v. Blake, 29 Ch. D. 964). Payment of interest under an order made in a foreclosure action to which infants were parties was considered as having been made without prejudice to their rights (Thwaites v. M'Donogh, 2 Ir. Eq. R. 97). Under the 40th section, the acknowledgment of the right must be given in writing, signed by the person by whom the same shall be payable or his agent, to the person entitled or his agent. Under the 42nd section, the acknowledgment must be given to the party entitled to the interest or his agent, signed by the person by whom the same was payable or his agent. The words of these two sections being nearly the same, most of the decisions as to acknowledgments under both these sections are arranged in one note. As to acknowledgments under the 14th and 28th sections, see ante, pp. 150, 171. In reference to this and the other sections, where the acknowledgment to or by the party interested or his agent is made sufficient (see ante, p. 150), it will be necessary to consider who is in law the agent and by what acts he is so constituted, where no direct proof of agency is produced. An agent need not be authorised in writing (Coles v. Trecothick, 9 Ves. 250). Wherever a specific appointment of an agent is necessary, a subsequent recognition of acts done by him in that capacity is better even than a previous authority (James v. Bright, 5 Bing. 533). When one means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command (Foster v. Bates, 12 M. & W. 233). See Trulock v. Robey (12 Ŝim. 407; ante, p. 171), where it was said: "It is not necessary to make a person an agent, that he should have an actual authority to act; it is quite sufficient that the grandfather acted as the agent of his grandchild; and that she, when she came of age, adopted what he had done on her behalf." And see generally, as to the extent and nature of an agent's authority, Pole v. Leash (28 Beav. 562, affirmed in H. L. 9 Jur. N. S. 829). In Toft v. Stephenson (1 D. M. & G. 28), an inquiry was directed as to the agency of an attorney who had acknowledged a debt. The principle of some of the cases, as Whippy v. Hillary (3 B. & Ad. 399), and Routledge v. Ramsay (8 Ad. & Ell. 221), decided upon the Stat. of Frauds Amdt. Act, 1828, although in language different from that of R. P. Lim. Act, 1833, ss. 40, 42, may be applicable to some cases arising under the latter statute (Holland v. Clark, 1 Y. & Coll. N. C. 169). See the cases under Stat. of Frauds Amdt. Act, 1828, quoted post, pp. 236 et seq. All that the R. P. Lim. Act, 1833, ss. 40, 42, requires is, that some acknowledgment of the right to the sum claimed shall have been given in writing, signed by the person who represents the estate out of which it is payable, or by his agent. Thus, where an estate was devised to a trustee in trust to sell and pay the testator's debts, and subject thereto in trust for A., an acknowledgment of a debt in writing, signed by the trustee or his agent, was held to be sufficient to preserve the creditor's right of suit for twenty years after the acknowledgment was given; but such an acknowledgment will not impose on the trustee any personal liability to 3 & 4 Will, 4, pay the debt (St. John v. Boughton, 9 Sim. 219). An acknowledgment c. 27, s. 40. signed by the attorney of the trustees of the will of a deceased purchaser of land who had entered before payment of purchase-money was sufficient (Toft v. Stephenson, 1 D. M. & G. 28). An acknowledgment by one of two trustees of real estate was not sufficient (Astbury v. Astbury, 1898, 2 Ch. 111). An acknowledgment by a mortgagor of more than six years' arrears of interest being due upon a first mortgage, does not preclude a puisne mortgagee from relying on the statute (Bolding v. Lane, 1 D. J. & S. 122; see the remarks on this decision in Chinnery v. Evans, 11 II. L. Cas. 115; and Astbury v. Astbury, 1898, 2 Ch. 117; where it is suggested that an acknowledgment by an executor will not bind a different person who is devisee of the real estate). In Re Fitzmaurice (15 Ir. Ch. R. 145), where the tenant for life of the equity of redemption in a mortgaged estate, gave a written acknowledgment to the mortgagee, it was held that the mortgagee's right to recover more than six years' interest was kept alive against the remainderman (see Beckett v. De la Cour, 11 L. R. Ir. 187; and compare Gregson v. Hindley, 10 Jur. 383; Barclay v. Owen, 60 L. T. 222). An acknowledgment by a debtor given after he has transferred his property for the benefit of creditors is not sufficient (Lyall v. Fluker, 1873, W. N. 208). In admitting acknowledgments, under the 40th section, to the person To whom. entitled or his agent, the court has not restricted itself within narrow limits. If it be made in a schedule, affidavit, or answer, it is sufficient, although it may be said that in those cases it is made to the court and not to the party. Sugden, L. C., thought the decisions right, and that they proceeded upon a liberal but yet a fair and just construction of the statute (Blair v. Nugent, 3 J. & Lat. 677). An acknowledgment in an answer in Chancery was sufficient (Ib. 673). In a case where it was contended that an acknowledgment by the debtor to a third person took a case out of this section, Alderson, B., said that will not do; there must be that from which a continuing contract may be inferred. If a man were to write a letter to a third person acknowledging the debt, it would not take it out of the statute. The Stat. of Frauds Amdt. Act, 1828, explains that (Grenfell v. Girdlestone, 2 Y. & Coll. 676). In order that an acknowledgment may have the effect of taking a demand out of the operation of the 42nd section of this statute, the acknowledgment must appear to have been made with a view of rendering the party making it liable to the demand, and it must have been made to the party entitled to make the demand (see Grenfell v. Girdlestone, 2 Y. & Coll. 676). So letters written by one of two executors to the plaintiff were held not a sufficient acknowledgment, because they had been written by the party not for the purpose of charging himself, but of throwing the burden of payment on the coexecutor; and it was said that it was questionable whether they would avail the plaintiff, inasmuch as they were written before the plaintiff had taken out administration to his wife (Holland v. Clark, 1 Y. & Coll. C. C. 151). A correspondence between the treasurer of a harbour company and a What person holding a mortgage on the works and tolls of the company was a amounts to sufficient acknowledgment (Jortin v. S. E. R. Co., 6 D. M. & G. 270). A an acknowwritten proposal of terms, adding, "This being done, it is hoped the judg- ledgment. ment against B. will be satisfied," was a sufficient acknowledgment of the judgment debt (Vincent v. Willington, 1 Long. & T. 456). It seems that an affidavit made in the suit may be a sufficient acknowledgment within the 42nd section of this act (Tristram v. Harte, 1 Long. & T. 186). An acknowledgment of a debt in the will of the debtor is sufficient (Millington v. Thompson, 3 Ir. Ch. R. 236; see, however, Re Hoyle, Hoyle v. Hoyle, 67 L. T. 234). The report of a master on a reference as to incumbrances, Master's finding the existence of a debt, was not a sufficient acknowledgment (Hill report. v. Stanwell, 2 Ir. L. R. 302). In this case the creditor who was held to be barred was not a party to the suit (see Wrixon v. Vize, 3 Dru. & War. 123). An admission of debt in an insolvent's schedule has been held to Insolvent's schedule. 3 & 4 Will. 4, c. 27, s. 40. When must the acknow be a sufficient acknowledgment within sect. 40 (Barrett v. Birmingham, 4 Ir. Eq. R. 537; Morrough v. Power, 5 Ir. L. R. 494; Hanan v. Power, 8 Ir. L. R. 505). Sect. 40 operates only as a suspension of the remedy and not as an extinguishment of the right. So an acknowledgment after the statutory period has elapsed is sufficient (Harty v. Davis, 13 Ir. L. R. 23; Re under sect. 40 Clifden, Annaly v. Agar-Ellis, 1900, 1 Ch. 774; see Waring v. Waring, 5 ledgment be made. No arrears of dower to be Ir. Ch. R. 6; but see contra, Gregson v. Hindley, 10 Jur. 383; Homan v. Andrews, 1 Ir. Ch. R. 106; see on this point the rule as to land, ante, p. 179; and as to simple contract debts, post, p. 235). 41. No arrears of dower, nor any damages on account of such recovered for arrears, shall be recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit. more than six years. No arrears of rent or in terest to be more than six years. In equity, as at law, there was before this act no limitation to a claim of the arrears of dower (Oliver v. Richardson, 9 Ves. 222; see Mordaunt v. Thorold, 3 Lev. 375; Curtis v. Curtis, 2 Br. C. C. 620; Dormer v. Fortescue, 3 Atk. 130; Tilley v. Bridger, 2 Vern. 519; Prec. in Ch. 252; Wakefield v. Child, 1 Fonbl. Eq. 159, n.; the Dower Act, 1833, post; Bamford v. Bamford, 5 Hare, 203; and Marshall v. Smith, 5 Giff. 37). 42. No arrears of rent (a) or of interest in respect of any sum of money charged upon or payable out of any land or recovered for rent (b), or in respect of any legacy (e), 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 respectively shall have become due (d), or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable or his agent (e): provided nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. How far (a) As to how far this section was retrospective, see Paddon v. Bartlett (3 Ad. & Ell. 884); Peyton v. M'Dermot (1 Dru. & Wal. 198); Vincent v. retrospective. Willington (1 Long. & T. 456). this section By the Lim. Act, 1623, s. 3, actions of debt for arrearages of rent must ARREARS OF have been commenced and sued within six years after the cause of such RENT. actions had accrued. This statute was confined to actions for arrears Old law. of rent upon a demise without deed, and did not extend to cases of rent reserved by specialty (Freeman v. Stacey, Hutton, 109). Sect. 42 was held in Ireland to include tithe rentcharge (Eccl. Commrs. v. Tithe rentSligo, 5 Ir. Ch. R. 46; Conolly v. Gorman, 1898, 1 I. R. 20). Only two charge and years' arrears of an ordinary tithe rentcharge can be recovered (54 Vict. tithes. c. 8, s. 10, sub-s. 2). As to uncommuted tithes, see 53 Geo. 3, c. 127, and 5 & 6 Will. 4, c. 74 (both repealed except as to uncommuted tithes by S. L. Rev. Acts, 1887 and 1888); Robinson v. Purday (16 M. & W. 11). So long as the relation of landlord and tenant subsists, the right of the Rent reserved. landlord to rent is not barred by non-payment, except that under this act the amount to be recovered is limited to six years (Archbold v. Scully, 9 H. L. C. 360); this limit applying in all actions for arrears of rent other than actions on a specialty. In an action on a specialty for arrears of rent, Civil Procedure Act, 1833, s. 3, applied, and twenty years' arrears were recovered (Paget v. Foley, 2 Bing. N. C. 679; Hunter v. Nockolds, 2 D. M. & G. 592, post, p. 202). See now R. P. Lim. Act, 1874, s. 8 (post, p. 211), and Darley v. Tennant (53 L. T. 257). In the case of a lessee who has forfeited his lease by non-payment of rent, the question as to what amount of arrears he will be required to pay to entitle himself to relief in equity, or to have proceedings stayed at law, is discussed (Darb. & Bos. Stat. Lim. 214). For the period during which an account of mesne rents will be directed in equity, see post, p. 205. The words "arrears of rent" in this section were held to include a portion charged by will upon land, and payable by periodical instalments (Uppington v. Tarrant, 12 Ir. Ch. R. N. S. 268, 269). Arrears of a fee-farm rent were held to be not recoverable for more Fee-farm than six years (Humfrey v. Gery, 7 C. B. 567). rent. The 2nd section of the act provides for the case where the right or title Annuities. to an annuity is disputed (see ante, p. 123). The 42nd section provides for the case where the title to the annuity is not disputed, but the distress is made for the arrears due (James v. Salter, 3 Bing. N. C. 552). An annuity charged on land by will comes within the meaning of the word rent in the 42nd section, as explained by the interpretation clause of this act, ante, p. 110, and therefore no more than six years' arrears are recoverable (Ferguson v. Livingston, 9 Ir. Eq. R. 202; Francis v. Grover, 5 Ha. 39); so also when the annuity is charged on realty and personalty (Re Nugent, 19 L. R. Ir. 140). In Wheeler v. Howell (3 K. & J. 189), arrears of an annuity charged on a reversionary interest in land were held to be recoverable more than six years after the same became payable. See, however, Vincent v. Going (1 J. & Lat. 697); Sinclair v. Jackson (17 Beav. 405). Under Civil Proc. Act, 1833, s. 3, it was held that arrears of an annuity charged on land and secured by deed might, in an action on the specialty, be recovered for twenty years, notwithstanding R. P. Lim. Act, 1833, s. 42 (Strachan v. Thomas, 12 Ad. & El. 536). See now Sutton v. Sutton, 22 Ch. D. 511; Fearnside v. Flint, 22 Ch. D. 579; Hughes v. Coles, 27 Ch. D. 231; post, pp. 211, 213). 3 & 4 Will. 4, c. 27, s. 42. (2) ARREARS OF INTEREST. (a) On mortgages. Cap. 27, Hunter v. Arrears of interest re coverable in foreclosing. In redeeming. An annuity bequeathed out of personalty only is not within this section (Rock v. Callen, 6 Ha. 531; Re Ashwell, Johns. 112). Lord St. Leonards considered that the words in this section “arrears of interest in respect of any legacy" might well be held to include an annuity which is payable out of personalty and no charge upon the land (R. P. Stat. 138). As to the period for which an account of rents will be directed in equity, see the note p. 205, post. (b) Sect. 40 enumerates mortgages, liens, judgments; but sect. 42 adopts the previous general description of money charged upon or payable out of land,' a description which includes every security, omitting the enumeration which it was unnecessary to repeat. The enactments are identical. It is impossible to draw any distinction between the sums of money mentioned in the one section and in the other" (Sugd. R. P. Stat. 139: see Bolding v. Lane, 4 Giff. 574). A mortgagee of canal works was limited under this section to six years' arrears (Hodges v. Croydon Canal Co., 3 Beav. 86); and a mortgagee of a reversionary interest in moneys representing the proceeds of lands devised on trust for sale was similarly limited, the mortgagor's property being money payable out of land" within this section (Bowyer v. Woodman, 3 Eq. 313). But a mortgagee of turnpike tolls (which are not within the act), was not limited to six years' arrears (Mellish v. Brooks, 3 Beav. 22). Nor was any such limit applied to the case of a mortgagee of a reversionary interest in trust funds invested on mortgage (Smith v. Hill, 9 Ch. D. 143; see Jordan v. Young, 1878, W. N. 229); or in pure personalty (Mellersh v. Brown, 45 Ch. D. 225, a foreclosure action); nor to the case of a mortgage of a reversionary interest in funds in court, the mortgage containing a covenant that interest in arrear should be capitalised (Clarkson v. Henderson, 14 Ch. D. 348). In some of the cases in England under R. P. Lim. Act, 1833, a difficulty arose in consequence of Civil Proc. Act, 1833, s. 3 (p. 215, post); and the courts treated the provision of the second act as an exception out of the enactments of the former (see Paget v. Foley, 2 Bing. N. C. 690; Strachan v. Thomas, 12 Ad. & E. 558). In Du Vigier v. Lee (2 Ha. 326), it was held that a mortgagee, whose mortgage debt was secured also by a bond and covenant, was entitled to recover twenty years' arrears of interest in a foreclosure suit. This decision was, however, overruled by Lord Cottenham in Hunter v. Nockolds (1 Mac. & G. 640; 19 L. J. Ch. 177), where he laid down that the effect of the conjoint enactment is, that no more than six years' arrears of rent or interest in respect of any sum charged upon or payable out of any land or rent shall be recovered by way of distress, action, or suit, other than and except in actions on covenant or debt on specialty, in which case the limitation is twenty years (see Harrison v. Duignan, 2 Dru. & War. 298; Hughes v. Kelly, 3 Dru. & War. 482). Compare Sutton v. Sutton (22 Ch. Div. 511), and Fearnside v. Flint (Ib. 579), cases under R. P. Lim. Act, 1874, s. 8 (substituted for sect. 40 of R. P. Lim. Act, 1833), in which the more recent statute was held to control Civil Proc. Act, 1833, s. 3. See post, p. 211. After Hunter v. Nockolds it was held, in several cases, that in an action to foreclose real estate, a mortgagee could not recover more than six years of interest, although the mortgage debt was secured by covenant (Sinclair v. Jackson, 17 Beav. 405; Shaw v. Johnson, 1 Dr. & Sm. 412; Round v. Bell, 30 Beav. 121). It made no difference that the property mortgaged was reversionary (Vincent v. Going, 1 J. & Lat. 697; Sinclair v. Jackson, 17 Beav. 405: approved by Hall, V.-C., Smith v. Hill, 9 Ch. D. 143; see contra, Wheeler v. Howell, 3 K. & J. 198; Jordan v. Young, 1878, W. N. 229). As to the interest recoverable in foreclosing personal estate, see Mellersh v. Brown (45 Ch. D. 225). In redemption suits a mortgagor can only redeem on payment of all arrears of interest, even exceeding six years (Edmunds v. Waugh, 1 Eq. 421; Dingle v. Coppen, 1899, 1 Ch. 726; Powell v. Brodhurst, 1901, 2 Ch. 167; see contra, Mason v. Broadbent, 33 Beav. 301). On selling land under his power a |