CH. V. v. Lane arose upon a different section and in reference to PART III. a different matter. After stating the decision in Bolding v. Lane, he says, "I think that that does not at all interfere with, but is in perfect harmony with the view which I now suggest to your Lordships to adopt. What was decided in Bolding v. Lane was this, that the words 'the person by whom the same is payable or his agent,' were words of such large import and meaning that they would not only comprehend the mortgagor and his personal representatives, upon whom the contract would be personally binding, but would also include the second or the third mortgagee, by whom the principal and interest due to the first mortgagee might with propriety be said to be payable, inasmuch as the estate and right of the second mortgagee was subject and posterior to that of the first mortgagee, and he would be entitled to redeem the first mortgagee upon the payment of the principal and interest. Accordingly the effect of that acknowledgment in writing, given under the 42nd section, was confined by that judgment, and I think correctly, to the interest of the individual giving that acknowledgment." After this expression of opinion the case of Bolding v. Lane must still be treated as an authority, notwithstanding the decision in Chinnery v. Evans. In another case (1), decided by Romilly, M.R., a testator had devised real estate in moieties to two devisees, charging each moiety with the payment of half his debts. One of the two devisees had within twenty years of the commencement of the suit made payments on account of the interest; and it was held that such payments did not prevent the 40th section from operating in favour of the devisee of the other moiety. As by the terms of the will the different moieties were made liable for different debts, there seems nothing in this decision inconsistent with the judgment in Chinnery v. Evans. But in Lord (1) Dickenson v. Teasdale, 1 De G. J. & S. 52; 32 L. J. Ch. 37. CH, V. PART III. Romilly's judgment there are expressions which it seems difficult to reconcile with the case in the House of Lords. Acknowledgment by tenant for life. In an Irish case (1) a tenant for life and remainderman executed a joint and several bond with warrant of attorney for confessing judgment thereon, and judgment was entered against both in 1846 and revived against both in 1848. A receiver over the tenant for life's estate was extended in 1849 to the judgment against the tenant for life and remained in receipt of the rents up to a period within twenty years of proceedings being taken, but no payment was made by either judgment debtor in respect of either judgment debt. The tenant for life died in 1881, and on a motion by the judgment creditor to enforce the judgment of 1846 against the lands of the remainderman, it was held by Ormsby, J., and on appeal by Sullivan, L.C., May, C.J., and Fitzgibbon and Barry, L.JJ., that the judgment had not been kept alive against the remainderman. It was decided in Ireland that a written acknowledgment given by a tenant for life of the equity of redemption in a mortgaged estate will keep alive the mortgagee's right to recover more than six years' arrears of interest against the remainderman (2). And in England it has been decided similarly under sect. 42 of 3 & 4 Wm. IV. c. 27 and under sect. 5 of 3 & 4 Wm. IV c. 42 that payment of interest by a tenant for life of part of the testator's property, who was also interested in the general estate of the testator, keeps alive as against remaindermen the right of the mortgagee of another part of the testator's property to recover the money due under the mortgage (3). It would seem that the question as to the effect of an acknowledgment or payment made by one person binding other parties In re Greene's Estate, 13 L. R. Ir. 461. (2) In re Fitzmaurices Minors, 15 Ir. Ch. R. 445. CH. V. liable is to be governed by the same principles whether it PART III. arises under sect. 5 of 3 & 4 Wm. IV. c. 42, sect. 42 or sect. 40 of 3 & 4 Wm. IV. c. 27, or sect. 8 of 37 & 38 Vict. c. 57, which has taken the place of sect. 40 of 3 & 4 Wm. IV. c. 27. Therefore the cases mentioned above (1) apply to sects. 40 and 42 of 3 & 4 Wm. IV. c. 27; and it would seem now established that where a tenant for life of the real estate of a testator acknowledges or makes a part payment of or payment of interest on account of a debt of the testator, such an acknowledgment will keep the debt alive as against the persons interested in remainder (2). But while it is the duty of the tenant for life to pay the interest on subsisting charges affecting the inheritance, he is not authorised to revive by payment as against the remainderman a charge which is statutebarred; in Becher v. Delacour (3) in Ireland, Sullivan, M.R., held that payment of interest by a tenant for life on a charge more than twenty years after the last payment in respect of the charge did not keep alive the charge as against the remainderman. It should be noticed that sect. 14 of the Mercantile Payment by co-conLaw Amendment Act (4) does not apply to sect. 40 of tractor. 3 & 4 Wm. IV. c. 27, and therefore not to sect. 8 of 37 & 38 Vict. c. 57. Thus where a mortgagor and a surety covenant for the payment of the debt, payment of interest by the mortgagor will prevent the statute running in favour of the surety (5). (1) See ante, p. 158. (2) Pears v. Laing, L. R. 12 Eq. 41; Roddam v. Morley, 1 De G. & J. 1; 26 L. J. Ch. 438. In re Hollingshead. Hollingshead v. Webster, 37 Ch. D. 651. See Barclay v. Owen, 60 L. T. 220; Chinnery v. Evans, 11 H. L. 115; Dibb v. Walker, 41 W. R. 427. (3) 11 L. R. Ir. 187. (4) 19 & 20 Vict. c. 97. (5) In re Frisby. Allison v. Frisby, 43 Ch. D. 106. In re Powers. Lindsell v. Phillips, 30 Ch. D. 291; Lewin v. Wilson, 11 App. Cas. PART IV. DOCTRINES OF EQUITY ON THE STATUTES CH. I. Equity and the Limita tions. CHAPTER I. CASES IN WHICH EQUITY FOLLOWS THE STATUTES. PART IV. No statute of limitations before 3 & 4 Wm. IV., c. 27, provided in terms for equitable rights, or expressly bound Courts of Equity. Those Courts frequently had occasion Statutes of incidentally to decide purely legal rights; of this one of the commonest instances was the adjudication on the validity of claims for debts brought in under decrees in administration suits. In these proceedings Courts of Equity decided all questions, including questions on the statutes, as if the claims were being enforced by an action. Judicature at law. Now in England since the Judicature Act, Act. 187. 1873 (1), and in Ireland since the Irish Judicature Act, 1877 (2), there are no longer superior Courts of Equity or superior Courts of Common Law, but one supreme Court of Judicature, composed of the Court of Appeal and the High Court of Justice, administering law and equity concurrently according to certain rules, which are the same for England as for Ireland, and are laid down in sects. 24 & 25 of the English and sects. 27 & 28 of the (1) 36 & 37 Vict. c. 66, s. 3. CH. I. Irish Judicature Act. The Chancery Division of the PART IV. High Court in England has now jurisdiction to try almost any variety of action which might before the Judicature Act have been brought in the Common Law Courts (1), and the Queen's Bench Division is enabled to grant equitable relief and to give effect to equitable claims and defences in the same way as the Court of Chancery did before the Act (2). By sect. 89 of the English Judicature Act, 1873, similar powers of granting relief are given to every inferior Court with jurisdiction in equity or at law and in equity as regards causes within its jurisdiction; and by sect. 91 of the English Act and sect. 79 of the Irish Act, the rules of law enacted and declared by those Acts are to be in force and receive effect in all Courts whatsoever in England and Ireland respectively. Although the distinction between Courts of Equity and Courts of Law has been abolished, the distinction between rules of equity and rules of law remains (3). All Courts when trying legal claims will be bound by the rules of law, except where such rules have been altered by the Judicature Acts, and the Chancery Division of the High Court in trying a purely legal claim is as much bound by the Statutes of Limitations as the Queen's Bench Division is now, or as the Common Law Courts were before the Judicature Act, 1873, while the Queen's Bench Division in trying equitable claims or defences will be bound by the rules of equity (4). Therefore, it is still of importance to consider the way in which Courts of Equity before the Judicature Acts viewed the Statutes of Limitations when the statutes did not expressly bind them. Courts of Equity, apart from statutory enactment, gave Courts of great effect to lapse of time as a ground for refusing Equity (1) Warner v. Murdoch, 4 Ch. D. at p. 752. (2) See s. 24 of 36 & 37 Vict. c. 66, s. 27 of 40 & 41 Vict. c. 57. (3) Joseph v. Lyons, 15 Q. B. D, 280. (4) In re Greaves. Bray v. Tofield, 18 Ch. D. p. 554. Statutes of Limita tions. |