3 & 4 Will. 4, c. 27, s. 40.

Lords such decision was affirmed. (2 Cl. & Finn. 429.) Under particular circumstances, thirty-nine years was held not sufficient to raise the presumption of the payment of legacies. (Shields v. Rice, 3 Jur. 970.) But it has been held, that a legatee might recover a legacy, though ten years had elapsed without any demand. (Lee v. Brown, 4 Ves. 362.) From mere lapse of time the only presumption that can be drawn is this, that which ought to have been done at the commencement of the period has been done at the end. Presumption of payment of a legacy from mere length of time cannot be inferred where such payment is out of the ordinary course of transactions. A payment in presenti of a sum due in futuro cannot be presumed without evidence of it. (Price v. Horniblow, 2 Y. & Coll. 206.)

Legacies charged on real estate were held, under the circumstances of the case, to be payable, notwithstanding the lapse of more than forty years from the testator's death to the filing of the bill; the statute 3 & 4 Will. 4, c. 27, not being applicable. (Ravenscroft v. Frisby, 1 Coll. 16; 13 Law J. (N. S.) Ch. 153.)

No arrears of dower to be re

ARREARS OF DOWER.

Time of Limitation fixed Six Years.

41. After the said thirty-first day of December, one thousand covered for more eight hundred and thirty-three, no arrears of dower, nor any damages on account of such 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 (o).

than six years.

(0) 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.) And though at law, by the death of the heir, the widow lost all arrears incurred in his lifetime, (Mordaunt v. Thorold, 3 Lev. 375,) yet in equity, if she had filed her bill before the death of the heir, she was entitled to the mesne profits (Curtis v. Curtis, 2 Br. C. C. 620) from the time her title accrued, ( Dormer v. Fortescue, 3 Atk. 130,) provided that she had made an entry; (Tilley v. Bridger, 2 Vern. 519; Prec. in Ch. 252;) and so in case of her death were her representatives. (Wakefield v. Child, 1 Fonbl. Eq. 159, n.; see 3 & 4 Will. 4, c. 105, for amending the law of dower, post; Bamford v. Bamford, 5 Hare, 203.)

No arrears of rent or interest to be recovered for more than six years.

ARREARS OF RENT OR INTEREST.

Time of Limitation fixed Six Years.

42. After the said thirty-first day of December, one thousand eight hundred and thirty-three, no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, 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, 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 (7): 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 (r).

(9) A "charge," properly so called, and a mortgage" are not synonymous; but although the word charge does not include mortgage, yet as the 40th section of this act expressly mentions mortgages, they must be included in this section of the act, from the necessity of construing those two clauses by reference to each other. (Bolding v. Lane, 8 Jur., N. S. 407; 10 W. R. 548.)

The words in this section "by whom the same was payable," do not denote merely the persons who are legally bound by contract to pay the interest, but all the persons against whom the payment of such arrears might be enforced. (Bolding v. Lane, 9 Jur., N. S. 506; 8 Jur., N. S. 407. See cases on acknowledgments, ante, pp. 254–257.)

3 & 4 Will. 4,

c 27, s. 42.

(r) This section is prospective in its operation, and not retrospective, and This section not therefore does not affect parties to any suits which were commenced before retrospective. its provisions took effect. (Paddon v. Bartlett, 3 Ad. & Ell. 884; 5 Nev. &

M. 383; Peyton v. M‘Dermot, 1 Dru. & Walsh, 198. In Vincent v. Willing

ton, 1 Longfield & T., the statute was held to be retrospective.)

So long as the relation of landlord and tenant subsists, the right of the landlord to rent is not barred by nonpayment, except that under this act the amount to be recovered is limited to six years. (Archbold v. Scully, 9 H. L. C. 360. See ante, p. 166.)

A life annuity was directed by will to be paid by trustees out of the interest of trust funds, and, subject thereto, the income was given to a person for life, and the corpus to other persons. The income of the fund having been insufficient to pay the annuity: it was held, that the arrears were a charge upon the corpus, and that the tenant for life was only bound to keep down the interest of the arrears, and that the claim for arrears beyond six years was not barred by the statute, as there was a trust for the payment. (Playfair v. Cooper, 17 Beav. 187.)

A party granted an annuity for ninety-nine years determinable on the dropping of certain lives, and demised a real estate to which he was entitled in remainder to a trustee for a term of years, upon trust to raise the arrears of the annuity by sale either before or after the determination of the particular estate. Upon a bill filed by the annuitant to enforce his security before the term came into possession: it was held, (affirming the decision of Wood, V. C., 2 Kay & J. 132; 2 Jur., N. S. 37,) that he was entitled to have the term sold, and all arrears paid, and that this did not restrict his right to arrears accrued within the last six years. (Snow v. Booth, 2 Jur., N. S. 244; 25 L. J., Chanc. 417-L.J.) Arrears of an annuity are recoverable for more than six years if there is a term to secure it. (Ib. See ante, p. 215.)

In some of the cases which have arisen under 3 & 4 Will. 4, c. 27, and 3 & 4 Will. 4, c. 42, the courts have 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.) The effect of the conjoint enactment is, that no more than six years' arrears of rent or interest, in respect of any sum charged on or payable out of any land or rent, shall be recovered by way of distress, action or suit, other than and

3 & 4 Will. 4, c. 27, s. 42.

except an action on covenant or debt on specialty, in which case the limita tion is twenty years. An annuity and certain extra premiums for life insurance were charged upon lands of the grantor, and secured by his covenant to pay, by a demise, with power of sale of the lands charged, and by a judgment entered up and duly registered. It was held by Lord Cottenham, C., reversing the order of the court below, that the representatives of the annuitant were only entitled to recover against the land the arrears of the annuity and the premiums which had respectively become due to and been paid by them or the grantee, within six years from the time of instituting proceedings to recover the same. (Hunter v. Nockolds, 19 Law J., Chanc. 177; 18 Law J., Chanc. 407; 1 Hall & T.644; 1 Mac. & G. 640, overruling Du Vigier v. Lee, 2 Hare, 326; see Harrison v. Duignan, 2 Dru. & War. 298; Hughes v. Kelly, 3 Dru. & War. 482.) All that Lord Cottenham decided in Hunter v. Nockolds was, that a claim to arrears of an annuity cannot be established as a personal debt against the grantor beyond six years. The petitioners went in to prove their claim as a personal debt against the estate of the party who granted the annuity; and having chosen to take that form of proceeding, they were allowed to prove the debt for six years and no (Snow v. Booth, 2 Kay & J. 135; 2 Jur., N. S. 244, ante, pp. 215, 263. See Cox v. Dolman, 2 De G., M. & G. 592, ante, p. 214.)

more.

A. was from the 2nd July, 1805, till the 10th July, 1841, (when he was found a lunatic,) and B., his committee, had ever since been, seised as of fee of two thirds of a fee-farm rent of 201. 5s. per annum, payable on 29th September and 25th March, created by letters-patent, 29 Hen. 8. No payment of this rent, or of any part thereof, had been made since March, 1831, nor had there been any acknowledgment in writing relating thereto. It was held, that the case was governed by this section, and consequently that neither the lunatic nor his committee was entitled to recover, in the year 1847 or the year 1844, any part of the arrears of the two-third parts of the fee-farm rent which accrued due from 29th September, 1831, to the 29th September, 1837, inclusive. (Humfrey v. Gery, 7 C. B. 567.)

On a bill to enforce a charge acquired by a judgment creditor on the estate of the debtor a receiver was appointed, and at the hearing a reference as to incumbrances on the estate was directed. A state of facts and claim carried in before the master under such inquiry by an incumbrancer not a party to the suit was held to take the charge as to the interest out of this section, and the incumbrancer was held to be entitled to the arrears of interest for six years antecedent to the claim carried in before the master. (Greenway v. Broomfield, Handley v. Wood, 9 Hare, 201.)

Where there is a mortgage of land and a covenant by the mortgagor for himself and his heirs to pay the mortgage money and interest, if there has been no payment for a long period, the land is only charged with six years' arrears of interest under 3 & 4 Will. 4, c. 27, s. 42; but twenty years' arrears may be recovered by an action on the covenant under 3 & 4 Will. 4, c. 42, s. 3. In such a case in a suit by the heir of the mortgagor to redeem, the mortgagee may tack the personal liability on the covenant as against the heir. It seems that it would be otherwise if the suit were by the mortgagor himself. (Elvy v. Norwood, 5 De G. & S. 240; 16 Jur. 493, Ch.)

A mortgagee, notwithstanding the interest mortgaged is reversionary, can only recover six years' arrears of interest as against the land mortgaged, although he may recover twenty years' arrears on the covenant to pay. (Sinclair v. Jackson, 17 Beav. 405.) Arrears of an annuity charged on a reversionary interest in land are recoverable more than six years after the same became payable, this section having no application so long as the interest is reversionary. (Wheeler v. Howell, 3 Kay & J. 198.) The interest on money secured by mortgage of land and by covenant being sixteen years in arrear, the mortgagee filed his bill of foreclosure against the heir of the mortgagor, raising no question of liability on the covenant or of any right of tacking. A decree was made to take an account of what was due on the mortgage. Under the Statute of Limitations twenty years' arrears could be recovered on the covenant, but six only against the land. The master refused to allow the plaintiff to tack his two claims. It was held, on

exceptions, that he was right. (Sinclair v. Jackson, 17 Beav. 405.) It was questioned, whether the right to tack in such a case would be different in a suit for foreclosure from what it is in a suit for redemption. (Ib.) It was said by Sir J. Romilly, M. R., there is this difference between a suit for foreclosure and one for redemption: in the former, the mortgagee seeks to recover what is charged upon the land, or to foreclose the mortgagor; but that is a very different thing from the mortgagor seeking to redeem and to restrain the mortgagee from enforcing his legal rights, when the court may impose upon him this condition, and decline to interfere in his favour except upon payment of everything which is due to the mortgagee. (Ib., see pp. 412, 413.)

When money is secured by an ordinary mortgage for a term of years, with a covenant by the mortgagor in the usual form to pay interest, and with a bond as a further security, the mortgagor in a suit to foreclose can only recover six years' arrears of interest. The case was governed by this principle, that where there is a simple mortgage with a bond and covenant only, six years' arrears of interest can be recovered against the estate; but where there is a trust to secure the mortgage and interest, or where the estate is vested in a trustee to raise a sum of money and interest, this statute does not apply, and interest can be recovered to the extent allowed by the stat. 3 & 4 Will. 4, c. 42. (Round v. Bell, 30 Beav. 121. See Lewis v. Duncombe, 29 Beav. 175, ante, p. 216.)

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. 136, and therefore no more than six years' arrears are recoverable. (Ferguson v. Livingston, 9 Ir. Eq. R. 202.)

Debts secured by judgments are sums of money charged upon or payable out of land within the meaning of this section of the act, and only six years' arrears of interest can be recovered for such debts. In relation to the statutes of limitations the rights of judgment creditors for arrears of interest, as against the real and personal estates of their debtor, are equal and co-extensive. As far as the bar of the statute operates for the protection of the real estate, to the same extent the personal estate is protected; the statute 3 & 4 Vict. c. 105, s. 26, enacts, that every judgment debt due upon any judgment not confessed or recovered for any penal sum for securing principal and interest shall carry interest, &c. The interest thus given is subject to the limitations of the statute 3 & 4 Will. 4, c. 27, s. 42. (Henry v. Smith, 2 Dru. & War. 381; 1 Con. & L. 506.)

In a petition matter, a conditional order for the appointment of a receiver to pay the sum of 1,5067, "stated to be due to the petitioner," on the judgment, was made absolute, with liberty to the master, at the instance of the respondent, to ascertain the sum due. The respondent is not precluded from relying on this section of the act in the office, as a bar to more than six years' arrears of interest, though he did not rely on it in showing cause against the conditional order, and the sum stated in the order was much more than the principal money and six years' interest thereon. The court having, at the instance of the respondent, restrained the petitioner from proceeding on the order for the receiver, the respondent undertaking to pay him a certain annual sum, the petitioner is not entitled to appropriate the moneys paid him, pursuant to that order, to the discharge of interest which had accrued due more than six years before the making of the conditional order. (Costello v. Burke, 2 Jones & L. 665.)

3 & 4 Will. 4,

c. 27, s. 42.

The 2nd section of the act provides for the case where the right or title Cases not within to an annuity is disputed. (See ante, p. 152.) The 42nd section provides the 42nd section. 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.) Arrears of rent, or of an annuity secured by deed, may be recovered for twenty years under the statute 3 & 4 Will. 4, c. 42, s. 3, notwithstanding the 42nd section of 3 & 4 Will. 4, c. 27. (Paget v. Foley, 2 Bing. N. C. 679; Strachan v. Thomas, 4 P. & Dav. 229; 12 Ad. & Ell. 536; see post.)

Three annuities charged upon an estate were granted, in 1814, in respect whereof no payment had been made since March, 1815. In January, 1855, a bill was filed for an account of the rents and profits of the estate, and

3 & 4 Will. 4, c. 27, s. 42.

Periodical pay

ment.

payment of the arrears of the annuities: it was held, that this section did not operate as a bar. (Knight v. Bowyer, 3 Jur., N. S. 968; 26 Law J., Chan. 796, ante, p. 216.)

Arrears of an annuity charged on a reversionary interest in land are recoverable more than six years after the same became payable, this section having no application so long as the interest is reversionary. (Wheeler v. Howell, 3 Kay & J. 198.)

Under this section a mortgagee, irrespective of a covenant to pay, or a term to secure the payment, is entitled to six years' arrears of interest. (Shaw v. Johnson, 1 Drew. & Sm. 412; 7 Jur., N. S. 1005; 9 W. R. 629.) So far as a covenant to pay affects the land, it is limited to six years.

Where a term is created on an express trust to secure principal and interest, this section does not operate as a bar, and a mortgagee's right is not confined to six years. (Ib.)

Where there is an agreement to assign a term on an express trust to secure principal and interest which can be enforced in equity, although the deed is not executed, the court will consider such assignment as if it had been executed, and make a decree for a general account not limited to the six years. (Ib.)

A testator, by his will, bequeathed all his property to H. upon the trusts thereinafter mentioned. He then bequeathed his leaseholds to H. for life, with remainder as to part of them to B. for life, with remainder to G. absolutely; and he gave the residue of his property to G. absolutely, and appointed H. his executrix. G. survived the testator, and died intestate in March, 1838. H. took out administration to his estate in May, 1838, and died in 1841; appointed B. her executrix, who thus became the representative of the testator as well as of H. B. afterwards took out administration to G., one of whose next of kin, in 1858, filed a bill against B. for the administration of G.'s estate: it was held, that B. could not avail herself of any defence founded on the statutes of limitations, but that an account of the rents of the leaseholds received, which was not limited to six years before the filing of the bill, and an account of the personal estate of G. received by H. and B. respectively, had been rightly directed against her. (Obee v. Bishop, 1 De G., F. & J. 137.) A demand against the assets of a deceased trustee or personal representative, for a breach of trust or misappropriation committed by him, is not barred by the lapse of six years after his death. (Ib.) Turner, L. J., said, with respect to the general personal estate, that he was of opinion, it would be most dangerous to hold that a demand against the assets of a deceased trustee or personal representative, in respect of a breach of trust or misappropriation committed by him, is barred at the expiration of six years from his death. Courts of Equity, in dealing with equitable debts, are not bound by 21 Jac. 1, c. 16; and, although they have in many instances adopted a rule grounded on an analogy of that statute, they do not extend that analogy to demands arising out of a breach of trust. (Ib.)

No more than six years' arrears of tithe rent-charge can be recovered by the owner thereof from the owner of the lands in Ireland. (Ecclesiastical Commissioners v. Marquis of Sligo, 5 Ir. Ch. R. 46.)

A terminable annuity, as an annuity for ten or twenty years, is within this section.

A testator bequeathed 2501. to B., to be chargeable on lands, and to be paid by yearly payments and instalments of 207. per annum from the day of her marriage, with consent, but not until then; and, in case B. should intermarry without such consent, then she should be entitled to 1s.; such portion of 2501. to be paid and payable by yearly instalments of 207. per annum from the day of her marriage, but not until then, with power to B. or her lawful husband to distrain in case of nonpayment of the 201 And the testator desired that his two sons (to whom he devised the lands) should contribute jointly and severally to support and clothe B. in a reasonable manner; and that, upon doing so, no interest should arise upon the 2501.; but if they neglected such support and clothing, he desired that the 2501. should be liable to interest at 67. per cent. until B.'s marriage, but by no