and the same. tinct and assignable person by whom the money is pre- accrues is one sently payable, or who is capable of paying it, or of making an acknowledgment of the right thereto; and unless there are such co-existing persons the statute is inapplicable. Where, therefore, a tenant for life of settled estates subject to a charge pays it off, but takes no steps expressive of his intention to keep it on foot, the charge is not within the purview of the statute, but remains an existing charge in favour of his representatives, although more than twenty years have elapsed since the payment of it by him (u); for where the same person is to pay and also to receive, the statute does not run, and a court of equity considers that the payment of interest has actually taken place (x). It has been already shown when the right of an exe- Executors and administrators. cutor or an administrator in the case of chattels real in corporeal hereditaments, including tithes, first accrues, in general, independent of and in connexion with the section 6, but more particularly in the case of administrators, to whom that section is expressly directed (y). affected by section 6 of c. 27. Although this section 6 is, in terms, for the purposes Accruer of right in certain of the act generally, yet other provisions of the statute cases not show that the section does not apply to all the subjects for which the statute has fixed a period of limitation. 3 & 4 Will. 4, Thus, the period fixed by the section now under consideration (sect. 40), within which the subjects mentioned in it are to be recovered, is next after a present right to receive the same has accrued to some person capable of giving a discharge or release for the same, words which necessarily imply the existence of a person at the time when the right accrues; and therefore, as re (u) Burrell v. Earl Egremont, 7 Beav. 237; M'Carthy v. Daunt, 11 Ir. Eq. Rep. 29; Kirkwood v. Lloyd, Ib. 561; 12 Ib. 585. (x) O'Fallon v. Dillon, 2 Sch. & Lef. 20; Burrowes v. Gore, 6 (y) Vide ante, p. 464-470. Accruer to persons in prison or beyond seas. On acknowledgment. spects these subjects, the rules of law applicable in those cases where the right has not accrued to a testator or an intestate, and there is no executor who has proved the will or has acted as such, or no administrator, when the right first accrues. Notwithstanding the section 6, the time when the right accrues under the section 40 may be dependent upon the existence of such representatives. (1.) When the right accrues a representative may be in existence, but his capacity may be imperfect, as in the case of an executor who has neither acted as such, nor has proved the will of his testator. In such case the period of limitation fixed by this section 40 will be computed from the time when the will of the testator has been proved, or the executor has acted as such (z). (2.) When the right accrues no representative may exist, as where the person to or against whom the right would have accrued if such person had been in esse when it accrued, is dead intestate, and no letters of administration in respect of his effects have been obtained. In such case the period of limitation will be computed from the time when the letters of administration are obtained (a). When the person to whom the right accrues under the sect. 40 of 3 & 4 Will. 4, c. 27, is imprisoned, or is out of Great Britain and Ireland and the Channel Islands, when the right accrues he is not, on merely either of those grounds, to sue beyond the time fixed by that section (b). If, however, after the right has first accrued, and before the expiration of the twenty years, any payment (z) Joliffe v. Pitt, 2 Vern. 694; Douglas v. Forrest, 4 Bing. 686; Storey v. Fry, 1 Y. & C. C. C. 603. (a) Stamford's case, cit. Cro. Jac. 61; Cary v. Stephenson, 2 Salk. 421; Fairclaim v. Little, cit. 5 B. & Ald. 214; Murray v. East India Co., Ib. 204; Holland v. Clark, 1 You. & C. C. C. 151; Sturgis v. Darell, 4 Ex., N. S. 622; 6 Ib. 120; Binns v. Nichols, 2 Law R., Eq. Ca. 256, 35 L. J., N. S. Eq. 635, 14 W. R., 727, S. C. (b) 19 & 20 Vict. c. 97, ss. 10, 11, 12. of principal (c) or of interest has been made, or any acknowledgment of the right to the money in the manner shown in a subsequent chapter has been given, the twenty years are computed from such payment or such acknowledgment, or, if more than one, from the last of them (d). The six years for arrears of dower are computed For arrears of dower, from next before the commencement of the action or suit, that is, the issuing of the writ or the filing of the bill (e). for them. The six years for damages for such arrears, as re- and damages spects the land (f), are computed from the same period as that in respect to the arrears themselves, but as respects the personal liability to such damages from the cause of action or suit (g). rent and da them. The six years for arrears of rent, and of interest For arrears of in respect of any sum of money charged upon or pay- mages for able out of any land or rent or in respect of any legacy, and for any damages in respect of such arrears, are next after the same respectively become due, or next after an acknowledgment of the same in writing is given to the person entitled thereto or his agent, signed by the person by whom the same is payable, or his agent (h). of sects. 40 and The words in this sect. 42, "the person by whom Interpretation the same is payable, or his agent," refer to the same 42 of c. 27. persons as the similar words used in the sect. 40 (i), and 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 may be enforced by any action or suit, and by whom, therefore, as they have a right to pay such interest on redemption of their land, interest may be properly said Object and effect of ac to be payable (k), but are words of such large import and meaning that they would not only comprehend a mortgagor and his personal representatives, upon whom the contract would be personally binding, but would also include a second or a third mortgagee, by whom the principal and interest due to a first mortgagee might, with propriety, be said to be payable, inasmuch as the estate and right of the second mortgagee is 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 (1). The object and effect of a payment or a written acknowledgment knowledgment, under the section 42, differ from the under sect. 42. object and effect of the same acts under the section 40, just noticed. The object and effect of those acts under the section 42 are to give to a mortgagor or other person, who is " by law compellable to pay the interest," a statutory power to deprive, by his acknowledgment given to a prior incumbrancer, the subsequent incumbrancers of the benefit of the statute, which would be monstrously unjust, but to enact a plain and simple rule, that no person having a charge on lands shall recover more than six years' interest on such charge against any other person having an interest in the lands, without an acknowledgment in writing signed by such person, or by some former owner from whom the interest is derived. As between first and second mortgagees. Where interest Where, therefore, there are several incumbrances upon the same land, ranking in a series one after the other, payment made, or a written acknowledgment given, by the mortgagor, will not keep alive the right of the first mortgagee to arrears of interest as against the second mortgagee (m). Where interest is presently payable, and there is (k) Bolding v. Lane, 1 De G., J. & S. 122. (2) 11 H. L. C. 135. (m) Bolding v. Lane, 1 De G., J. & S. 122; 11 H. L. C. 134. able. nothing to stop it, the time commences immediately (n). is and is not But where the principal money is not due, interest presently paycannot become due until the principal becomes payable. Therefore, in the case of a contract for the sale and purchase of land, the right to the purchase-money depends upon the time when the title was shown by the original contract, and does not become payable at the time appointed by the contract, but upon the title being perfected by evidence; and the right to receive interest accrues at the same time. Interest is not payable until it be seen whether the contract can be completed, and the vendor can have no lien except upon the terms of completing the original contract. It is upon completion that interest becomes due, although to be calculated from the inception of the contract (o). claimed in a Where a claim by petition in a suit is made for Arrears of arrears of an annuity charged on land, as the annuitant annuity cannot be considered in possession until he asserts his suit. title, the six years are to be computed from the time when the claim is made in the suit (p). In the case of judgments claimed in a suit for spe- Interest on cific performance the six years are computed, not from judgments. the filing of the bill, but from the time of filing the charges on the foot of the judgments in the master's office (q). When the person to whom the right accrues under the sections 41 and 42, just noticed, is out of Great Britain and the Channel Islands when the right accrues, he is not, on merely that ground, to sue beyond the times fixed by those sections (r). On absence of claimant beyond seas. |