CH. IV. PART III. does not appear how many years' arrears were owing, and no question of the statute arose, the point decided being that where the plaintiff had recovered judgment in ejectment against the defendant for forfeiture by nonpayment of rent, but had been deprived of his costs, because the arrears of rent had been offered before action brought, the payment of those costs by the defendant could not be made a condition of the granting of relief under sect. 1 of the Common Law Procedure Act, 1860. But it seems to have been assumed that relief would not be granted except on repayment of all arrears due. Fee-farm grant and renewal in Ireland. Possession of prior incumbrancers. It has been decided that to entitle a lessee in Ireland with a covenant for perpetual renewal to a fee-farm grant, or a renewal, he must pay all fines and fees that have not been paid, without reference to lapse of time or any Statute of Limitations (1). The 42nd section of 3 & 4 Wm. IV. c. 27 contains a proviso that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in 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. The term incumbrancer in this proviso includes a judgment creditor (2). Where arrears of interest are due for a period preceding the possession of the prior incumbrancer, the proviso does not give six years' arrears beyond the time of such possession, but only the arrears during the whole of the possession itself, though it may (1) Courtenay v. Parker, 16 Ir. Ch. R. 320. have commenced more than six years before the commencement of the proceeding in which the arrears are recovered (1). The object of the section is only to prevent a puisne incumbrancer from being damaged by the possession of a prior incumbrancer; therefore, where a claim was brought by a creditor having a judgment against a reversioner, the possession of a judgmentcreditor of the tenant for life of the lands during the life of such tenant was held not to bring the case within the proviso, as even if there had been no incumbrance on the life estate, the creditor of the reversioner could not have taken any proceeding against the land till the life estate determined (2). PART III. CH. IV. An agreement between a puisne incumbrancer and a prior incumbrancer in possession, that the later charge shall have precedence over the first, will not exclude the puisne incumbrancer from the benefit of the clause if he has no right to take possession of the land (3). But if the owner of land take an assignment of an incumbrance to a trustee for himself, then, though the owner be in possession, neither he nor his trustee is an incumbrancer in possession within the meaning of the proviso, so as to give a subsequent incumbrancer the advantage of it (4). There is no express exception in favour of disabilities, Disabiliin cases falling within the 42nd section, any more than in those within the 40th; and, as the existence of a person capable of giving a discharge is not, as in cases falling within the 40th section, a condition precedent to the time beginning to run (5), no disabilities are in any way provided for by the 42nd section (6). But in Ireland, in an action of ejectment for non-pay (1) Montgomery v. Southwell, 2 Con. & Law. 263. (2) Vincent v. Going, 1 Jo. & Lat. 697. 9 Ch. D. 143. (3) Drought v. Jones, 2 Ir. Eq. R. 303. See Smith v. Hill, (4) Chinnery v. Evans, 11 H. L. 115; 10 Jur. N.S. 855. (5) See ante, p. 135. (6) See De Beauvoir v. Owen, 5 Exch. 182. ties. PART III. CH. IV. Arrears of dower. ment of rent, it has been held that by virtue of sects. 20, 21, and 22 of the Irish Common Law Procedure Act, 1853, and sects. 60 and 77 of the Landlord and Tenant Law Amendment Act (Ireland), 1860, the plaintiff, a minor, was entitled to recover arrears for nineteen years and a half (1). By the 41st section of 3 & 4 Wm. IV. c. 27, no arrears of dower are to be recovered by any action or suit for a longer period than six years; and no provision is in this case made for the giving of an acknowledgment in writing. (1) Nixon v. Darley, 2 Ir. R. C. L. 467. CHAPTER V. EFFECT OF ACKNOWLEDGMENTS AND PART PAYMENTS 3 CH. V. & 4 Wm. IV. c. 27, ss. 40 & 42. Vict. c. 57, s. 8. BOTH in sect. 40 and in sect. 42 of 3 & 4 Wm. IV. c. 27, PART III. and in sect. 8 of 37 & 38 Vict. c. 57, it is provided that a signed acknowledgment shall set time running afresh under those sections; and in sect. 40 of 3 & 4 Wm. IV. c. 27 (now sect. 8 of 37 & 38 Vict. c. 57), the same effect is given to payment of interest or part payment of principal. By sect. 8 of 37 & 38 Vict. c. 57, which has taken 37 & 38 the place of sect. 40 of 3 & 4 Wm. IV. c. 27, proceedings are to be commenced within the period of twelve years thereby limited: "Unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent. And in such case, no such action, or suit, or proceeding, shall be brought, but within twelve years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was given." By sect. 42 of 3 & 4 Wm. IV. c. 27, no arrears, &c., are to be recovered but within six years after they have become due, "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." PART III. "in the mean time." By the 8th section of 37 & 38 Vict. c. 57, the lapse of twelve years, counting from the accrual of the present right Meaning of to receive, is a bar to any proceeding to recover a charge on land, unless in the meantime a payment has been made, or an acknowledgment in writing given. It was argued in a case under 3 & 4 Wm. IV. c. 27, that the words "in the meantime" in sect. 40, referred to the period of twenty years from the time that the right accrued; and in two cases (1), an opinion seems to have been expressed that an acknowledgment or part payment made after such a period has once elapsed would have no effect in reviving the right to recover; but in another case (2), the contrary view was taken by the Court of Common Pleas in Ireland. In these cases it seems to have been thought that an acknowledgment or payment made after the lapse of twenty years, might be sufficient to bind the party actually making it, but that it would not affect the rights of another party liable, though it would have been sufficient to bind him if made during the twenty years (3). It should be remarked, too, that while the 40th section of 3 & 4 Wm. IV. c. 27 (now the 8th secledgment after action tion of 37 & 38 Vict. c. 57) limits the time for the brought as commencement of proceedings, the 42nd section of 3 & 4 Wm. IV. c. 27 only prevents the recovery of money unless an acknowledgment has been given within six years, and, therefore, an acknowledgment given after action brought is sufficient to except a case from the operation of sect. 42 (4). Acknow to sect. 42 of 3 & 4 W. IV. c. 27. With the exception of the points just mentioned, the provisions of sect. 40 of 3 & 4 Wm. IV. c. 27, or sect. 8 of 37 & 38 Vict. c. 57, and of sect. 42 of 3 & 4 Wm. IV. c. 27, are so nearly identical, that the same rules of construc (1) Gregson v. Hindley, 10 Jur. 383; Homan v. Andrews, 1 Ir. Ch. R. 106. (2) Harty v. Davis, 13 Ir. L. R. 23. (3) See Becher v. Delacour, 11 L. R. Ir. 187. (4) Tristram v. Harte, Long & T. 186. |