has been cited to show that the defence of the Statute of Limitations could not be set up in the office where it had not been relied on in the answer, "I would require to have that proposition fully considered before I adopted it in its full extent. The consequences to creditors in the administration of assets in the office would be quite alarming. It may be quite right to apply it in a case between plaintiff and defendant; but it seems to me to be impossible to apply it in a case like the present." (Drought v. Jones, 2 Ir. Eq. R. 306.)

The Statute of Limitations, notwithstanding it is a defence at law, may be pleaded to a bill of discovery in aid of an action brought, provided it has been pleaded to the declaration. If the action was commenced before the bill was filed, the plea must aver that the cause of action did not accrue within six years before the action was brought. (Macgregor v. East India Company, 2 Sim. 452.) A plea of the Statute of Limitations to a bill of discovery in aid of an ejectment was allowed. (Scott v. Broadwood, 2 Coll. C. C. 447.) Where no relief can be had at law, on account of lapse of time, a suit for discovery and relief in an action at law cannot be sustained. (Fisher v. Price, 11 Beav. 199.)

A plea, pleading first the statute 21 Jac. 1, c. 16, and afterwards the stat. 9 Geo. 4, c. 14, is not double; for those acts, although passed at different times, are to be considered as making jointly one law. (Forbes v. Shelton, 8 Sim. 335.) Leave was given to file a double plea to an ejectment bill, namely, not heir, and secondly, the Statute of Limitations. (Bampton v. Birchall, 4 Beav. 558.)

To a bill filed for an account of coal against the representatives of the lessees of a mine, the defendants pleaded the Statute of Limitations in respect of the account, and averred that they had not taken upon themselves the performance of the covenants in the lease. It was held, that this being a plea of the statute, and a plea of liability never incurred, the two things were inconsistent. The defendants also pleaded the statute as to further accounts of coal obtained from land not comprised in the original lease; and the defendants then averred that they had practised no fraud or concealment in obtaining such coal. It was held, that this raised an issue not contained in the bill, and not supporting the plea, and was inconsistent with the plea. Separate pleas may be put in to separate parts of a bill. (Emmott v. Mitchell, Law J. 1845, Ch. p. 179.)

3 & 4 Will. 4,

c. 27, s. 40.

Before this statute it seems that if the mortgagor continued in posses- Presumption of sion, and there had been neither payment nor demand of any principal payment. or interest for twenty years, that it was sufficient to raise the presumption of payment; (1 Ch. R. 59, 105; Trash v. White, 3 Br. C. C. 289; Christopher v. Sparke, 2 Jac. & Walk. 228; Cooke v. Soltau, 2 Sim. & Stu. 154; contrà Joplis v. Baker, 2 Cox, 118; Leman v. Newnham, 1 Ves. sen. 51 ;) but such presumption was liable to be rebutted by circumstances, and payment of interest on part of the debt was sufficient to keep the whole alive. (Loftus v. Smith, 2 Sch. & Lef. 642.)

If a judgment creditor has lain by for twenty years without any effort to Of judgments. enforce his judgment, and it has not been acknowledged by the debtor

within that time, it will be presumed to be satisfied. (Peake's Ev. 25, n. ; Coote on Mortgages, p. 76. See 4 Ann. c. 16, s. 12; Kemys v. Ruscomb, 2 Atk. 45.)

It was held, that the presumption arising from lapse of time of a judg- Presumption of ment having been satisfied, was not rebutted by evidence of the debtor satisfaction. having been in extremely embarrassed circumstances, and, in the opinion of those who knew him, incapable of paying the debt secured by the judgment. (Willaume v. Gorges, 1 Campb. 217.) Upon a bill filed by a creditor to enforce a judgment of twenty-eight years' standing, the plaintiff, in order to rebut the presumption that the judgment had been satisfied, gave evidence of the insolvency of his debtor during a great part of that period: it was held, that such evidence would not avail the plaintiff against the unexplained fact of his not having sooner attempted to enforce the judgment, and that, to obtain relief in equity, he was bound under the circumstances to show to demonstration that the judgment had been satisfied. (Grenfell v. Girdlestone, 2 You. & Coll. 662. See White v. Parnther, 1 Knapp, 228, 229.)

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

Lien for purchasemoney unpaid.

Where a vendor delivers possession of an estate to a purchaser without receiving the purchase-money, equity, whether the estate be (Chapman v. Tanner, 1 Vern. 267; Pollexfen v. Moore, 3 Atk. 272; and see 1 Br. C. C. 302, 424, and 6 Ves. jun. 483; Mackreth v. Symmons, 15 Ves. 329) or be not (Smith v. Hibbard, 2 Dick. 730; Charles v. Andrews, 9 Mod. 152) conveyed, and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold, (Winter v. Lord Anson, 3 Russ. 488,) gives the vendor a lien on the land for the money. So, on the other hand, if the vendor cannot make a title, and the purchaser has paid any part of the purchase-money, it seems that he has a lien for it on the estate, although he may have taken a distinct security for the money advanced. (Lacon v. Mertins, 3 Atk. 1; see Sugd. V. & P. 857 (11th ed.).) But it seems that there will be no lien for money paid where the contract is illegal by statute. (Ewing v. Osbaldiston, 2 M. & Cr. 88.) And in those cases in which the lien would subsist as between vendor and vendee, the vendor shall have the lien against a third person, who had notice that the money was not paid. (Mackreth v. Symmons, 15 Ves. 349; 3 Atk. 373, contrà.)

But this implied contract may be rebutted by clear and irresistible evidence, showing the intention of the parties that the estate shall not be a security for the money. (Mackreth v. Symmons, 15 Ves. 329; see 16 Ves. 278.) The lien may subsist notwithstanding a personal security is given for the money, whether by bond, bill of exchange (Hughes v. Kearney. 1 Sch. & Lef. 132; Grant v. Mills, 2 Ves. & B. 309; Ex parte Peake, 1 Madd. 346) or promissory note. (Gibbons v. Baddall, 2 Eq. Čas. Abr. 682, n. b.)

The taking drafts which are dishonoured will not per se deprive the vendor of his right of lien. (Hughes v. Kearney, 1 Sch. & Lef. 136; see Grant v. Mills, 2 Ves. & B. 306.) The right of lien applies also where the vendee becomes a bankrupt against his assignees. (Ex parte Peake, 1 Madd. 346.)

By an agreement for the sale of an estate, the purchase-money, with interest, was to be secured by the bond of the purchaser, and was to remain so secured during the life of the vendor. The conveyance, which was afterwards executed, expressed that the purchase-money had been paid, and the vendor's receipt was indorsed upon it; but, in fact, only a part of the price had been paid, and the residue was secured by the purchaser's bond, conditioned for payment of the principal, with interest, within twelve months after the death of the vendor, and of interest in the meantime. The vendor was held to have a lien on the estate for the amount of the bond. (Winter v. Lord Anson, 1 Sim. & Stu. 488; 3 Russ. 488.) A vendor was held not to have waived his lien on the estate sold, by taking the promissory note of the vendee, and receiving its amount by discount. (Ex parte Loaring, 2 Rose, 79.)

Where there is no special agreement extinguishing the lien, the question is, what was the intention of the parties. Lord Eldon observes (Mackreth v. Symmons, 15 Ves. 350), "the modern authorities upon this subject have brought it to this inconvenient state: that the question is not a dry question upon the fact, whether a security was taken, but it depends upon the circumstances of each case, whether the court is to infer that the lien was intended to be reserved, or that credit was given, and exclusively given, to the person from whom the other security was taken."

A mortgage of other lands for the whole or part of the purchase-money, (Nairn v. Prowse, 6 Ves. 752,) or a mortgage of the purchased estate for part of the purchase- money, permitting the rest to remain on personal security, (Bond v. Kent, 2 Vern. 281; 1 Sch. & Lef. 135,) has also been thought sufficient for the purpose of discharging the equitable lien on the purchased estate in the first instance, or wholly, and in the second instance to the amount of the money remaining on the personal security, although Lord Eldon seems to have held the former not conclusive. (15 Ves. 341.)

A covenant between the vendor and purchaser, that the purchase-money should be repaid within two years after resale, discharges the vendor's lien. (Ex parte Parkes, 1 Glyn & J. 228.) So where the consideration for the conveyance is expressed to be the covenant for the payment of an annuity and a sum in gross. (Clarke v. Royle, 3 Sim. 499; see Stuart v. Ferguson,

1 Hayes, 452.) A vendor who has taken, as a security for part of the purchase-money, the bond of the vendees, and a mortgage of part of the property sold, cannot, on the bankruptcy of the vendees, establish a lien on the entire estate. (Capper v. Spottiswoode, 1 Taml. 21; and see Blackburn v. Gregson, 1 Cox, 90.) The mere security for the payment of the price stated in a conveyance will not discharge the vendor's lien. The security is considered as simply for payment of the price, and if the price be not paid the lien subsists. The proper way of deciding questions of this kind is to look at the instruments executed by the parties, and to declare upon such instruments what the intention of the parties was. (Winter v. Lord Anson, 3 Russ. 488.) Thus, where a vendor, in lieu of the price of 3,000l., agreed to accept an annuity of 1001. a year for the joint lives of her intended husband and herself, in case the purchasers should so long live, the purchaser engaging that his personal representatives should within three months after his decease, in certain events but not in all events, pay a further sum of 3,000.; this is not a security, but a substitution for the price, and the lien of the vendor is discharged. (Parrott v. Sweetland, 3 Myl. & Keen, 655.)

The lien of a vendor upon the land and upon the title-deeds, until the purchase-money be paid him, does not apply to a conveyance to the purchaser executed by some but not all the parties, where the contract has gone off by the vendor's default; and if there be any lien on such conveyance, it is vested in the purchaser as a security for his deposit. (Oxenham v. Esdaile, 3 Y. & J. 262; 2 Y. & J. 493.)

A party who executes a deed is estopped in a court of law from saying that the facts stated in that deed are not truly stated. Therefore, where the whole purchase-money of the premises was acknowledged to have been well and truly paid, the party is precluded from saying, in an action at law, that any part of that money remains due; and parol evidence that it was never paid, being inconsistent with the deed, is not admissible. (Baker v. Dewey, 1 B. & C. 704; see Lampon v. Corke, 5 B. & Ald. 606.)

The lien subsists, notwithstanding the consideration is expressed in the deed to be paid, and a receipt is indorsed upon it, (15 Ves. 337; Coppin v. Coppin, 2 P. Wms. 295,) and in such a case a court of equity will grant relief as well as discovery. (Ryle v. Haggie, 1 Jac. & Walk. 234.)

A vendor conveyed without receiving his purchase-money; the receipt of it was indorsed on the deed, and the title-deeds delivered to the purchaser. The purchaser then made a mortgage by deposit and absconded: it was held, that as between the vendor's lien for his unpaid purchase-money and the right of the mortgagee, that the possession of the title deeds, and the fact of the indorsement of the receipt on the deed, gave the mortgagee the better equity. (Rice v. Rice, 2 Drew. 73.)

An unpaid vendor is entitled to proceed as a mortgagee, and to have the estate resold, and the produce applied, first, to pay the expenses of resale, and, secondly, the purchase-money. (Hope v. Booth, 1 B. & Ad. 498.)

3 & 4 Will. 4,

c. 27, s. 40.

In an early case it was decided that the Statute of Limitations could not Presumption of be pleaded in bar to a suit for a legacy, although it had been due twenty payment of years. (Anon. Freem. C. C. 22; see also 1 Vern. 256.) But though the legacies. statute could not be pleaded, yet in many cases it was adopted where there was no fraud, and the parties had permitted the assets to be distributed without claiming the legacy for thirty-five or forty years, and was a good defence by way of answer upon the ground of raising a presumption of payment. (Higgins v. Crawford, 2 Ves. jun. 572; Pickering v. Stamford, Ib. 582; S. C., 4 Br. C. C. 214; Jones v. Turberville, Id. 115; S. C., 2 Ves. jun. 11.) And it seems that the lapse of twenty years after the testator's death without any demand of the legacy would have been sufficient to afford a presumption of payment. (Montressor v. Williams, 1 Rop. on Leg. 792 (2nd ed.).) In the case of Campbell v. Graham (1 Russ. & Mylne, 453), in which this doctrine was much considered, a party bought a legacy, which was assigned to him twenty-seven years after the testator's death, and four years more elapsed before the filing of the bill: and it was held, that he was barred by length of time, and on an appeal to the House of

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 recovered for more than six years.

ARREARS OF DOWER.

Time of Limitation fixed Six Years.

41. After the said thirty-first day of December, one thousand 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).

(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 (q): 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