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 (1).

(7) 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; and Marshall v. Smith, 5 Giff. 37; 13 W. R. 198.

3 & 4 Will. 4, c. 27, s. 41.

No arrears of covered for more than six years.

dower to be re

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 (m) or of interest in respect of any sum of money charged upon or pay able out of any land or rent (n), or in respect of any legacy (0), 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 (p), 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).

(m) This section is prospective in its operation, and not retrospective, This section not and therefore does not affect parties to any suits which were commenced retrospective. before 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. Willington, 1 Longfield & T., the statute was held to be retrospective as to acknowledgments.

By statute 21 Jac. 1, c. 16, s. 3, actions of debt for arrearages of rent ARREARS OF must have been commenced and sued within six years after the cause of RENT. such actions had accrued. This statute was confined to actions for arrears Old law.

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

Arrears of tithe rent-charge.

Arrears of tithes.

Rent reserved.

Periodical pay

ment.

Fec-farm rent.

of rent upon a demise without deed, and did not extend to cases of rent reserved by specialty. (Freeman v. Stacey, Hutton, 109.)

Section 42 was held in Ireland to include tithe rent-charge. (Ecclesiastical Commissioners v. Marquis of Sligo, 5 Ir. Ch. R. 46.) Not more than two years' arrears of any tithe commutation rent-charge is recoverable by distress or entry under statute 6 & 7 Will. 4, c. 71, ss. 81, 82. If the half-yearly payments of a rent-charge under that act be in arrear, and no sufficient distress found, the owner of the rent-charge may recover such arrear for a period not exceeding two years, by assessment and writ of habere possessionem, under the 82nd section, although no attempt to distrain has been made at the end of each or any but the last of the half years, and although at the end of one or more of such previous half years there may have been a sufficient distress for the amount then due. (In re Camberwell Rent-charge, 4 Q. B. 151; 3 Gale & D. 365.)

The statute 21 Jac. 1, c. 16, s. 3, could not be pleaded in an action of debt under the 2 & 3 Edw. 6, c. 13, for not setting out tithes. (Talory v. Jackson, Cro. Car. 513; see 1 Mod. 246.) But by statute 53 Geo. 3, c. 127, s. 5, "No action shall be brought for the recovery of any penalty for the not setting out tithes, nor any suit instituted in any court of equity, or in any ecclesiastical court, to recover the value of any tithes, unless such action shall be brought, or such suit commenced, within six years from the time when such tithes became due." In bills for an account of tithes, courts of law and equity have a concurrent jurisdiction; and inasmuch as in a court of law arrears of tithes can be recovered only for six years before the commencement of the action, so in a court of equity the account will be carried back only six years previous to the filing of the bill. (Collins v. Archer, 1 Russ. & Myl. 284; see Chichester v. Sheldon, Turn. & Russ. 253; S. C., 3 E. & Y. 1102; Garrard v. Schollar, 3 Gwill. 1045; 2 E. & Y. 282; Goode v. Waters, 20 Law J., Ch. 72.) Since 5 & 6 Will. 4, c. 74, if any tithe, oblation, or composition not excepted in 7 & 8 Will. 3, c. 6, or exceeding 101. yearly value, due from any one person, is in arrear, it must be proceeded for before two justices; and if the title of the claimant, or liability of the party sought to be charged, is undisputed, two years' arrears may be there recovered; whereas if such title or liability is denied virâ voce before the justices, or at any time in writing, the claimant may proceed by suit in equity, and recover six years' arrears. (Robinson v. Purday, 16 Mees. & W. 11.)

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.) In the case of a lessee who has forfeited his lease by nonpayment of rent, the question as to what amount of arrears he will be required to pay to entitle himself to relief in equity, or to have proceedings stayed at law, is discussed. Darb. & Bos. Stat. Lim. 153 - 156. For the period during which an account of mesne rents will be directed in equity, see post.

A testator bequeathed 250l. to B., to be chargeable on lands, and to be paid by yearly payments and instalments of 201. 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 250l. to be paid and payable by yearly instalments of 201. 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 207. 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 2507. should be liable to interest at 67. per cent. until B.'s marriage, but by no means after it was held, that the instalments were periodical payments of a sum of money charged upon lands, and as such within this section. (Uppington v. Tarrant, 12 İr. Ch. R., N. S. 268, 269.)

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. 58. 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.)

The 2nd section of the act provides for the case where the right or title Annuities. to an annuity is disputed. (See ante, p. 144.) The 42nd section provides 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.)

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. 131, and therefore no more than six years' arrears are recoverable. (Ferguson v. Livingston, 9 Ir. Eq. R. 202; Francis v. Grover, 5 Ha. 39.) But in Wheeler v. Howell (3 K. & J. 189), arrears of an annuity charged on a reversionary interest in land were held to be recoverable more than six years after the same became payable. (See, however, Vincent v. Going, 1 J. & Lat. 697; Sinclair v. Jackson, 17 Beav. 405.) An annuity bequeathed out of personalty is not within this section. (Roch v. Callen, 6 Ha. 531; Re Ashwell's Will, Johns. 112.) Lord St. Leonards considers that the words in this section "arrears of interest in respect of any legacy" might well be held to include an annuity which is payable out of personalty and no charge upon the land. (R. P. Stat. 138.)

(n) "Sect. 40 enumerates mortgages, liens, judgments; but sect. 42 adopts ARREARS OF the previous general description of money 'charged upon or payable out of INTEREST. land,' a description which includes every security, omitting the enumeration which it was unnecessary to repeat. The enactments are identical. It is impossible to draw any distinction between the sums of money mentioned in the one section and in the other." (Sugd. R. P. Stat. 139. See Bolding v. Lane, 3 Giff. 574.)

The trustees of a turnpike road, pursuant to a power given to them by (1) ON MORTact of parliament, mortgaged to J. M. such share and proportion of all the GAGES. tolls as the money advanced by him should bear to the whole principal amount advanced on the tolls. The security was continued by various acts of parliament, but no interest was paid in respect of such mortgage for thirty years and upwards. It was held, in a suit instituted by the representative of J. M. against one of the trustees of the road, seeking payment of all the arrears of interest due to him out of all the tolls, that he was not barred by the Statute of Limitations from recovering the whole of such arrears (tolls not being within the meaning of the act), but that the other mortgagees on the tolls were necessary parties to a suit for that purpose. (Mellish v. Brooks, 3 Beav. 22; 4 Jur. 739.)

A canal company conveyed, under their common seal, the canal works and rates to a mortgagee, to hold until the sum borrowed, with interest, should be repaid. There was no covenant to repay. It was held, that under this section, although the mortgagee could recover the principal within twenty years, yet his remedy for arrears of interest was limited to six years. There being no covenant or engagement to pay, but simply a conveyance of the canal, there was not the species of action of covenant, or of debt upon bond or other specialty, referred to in the statute 3 & 4 Will. 4, c. 42, s. 3, post. (Hodges v. Croydon Canal Co., 3 Beav. 86.)

And where a woman executed a mortgage of a reversionary interest to which she was entitled in a share of certain moneys, the proceeds of lands devised upon trust for sale, it was held that her estate was "money payable out of land" within this section, and that the mortgagee could not

3 & 4 Will. 4,
c. 27, 8. 42.

Cap. 27, sect. 42,
and cap. 42, sect. 3.
Hunter v.
Nockolds.

Arrears of interest recoverable in foreclosing.

In redeeming, and in suits to recover surplus purchasemoney.

Tacking.

Cases in Ireland.

recover more than six years' interest. (Bowyer v. Woodman, L. R., 3 Eq. 313.)

In some of the cases in England under 3 & 4 Will. 4, c. 27, a difficulty arose in consequence of 3 & 4 Will. 4, c. 42, s. 3 (p. 258, post); and the courts 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.) In Du Vigier v. Lee (2 Ha. 326), it was held that a mortgagee whose mortgage debt was secured also by a bond and covenant, was entitled to recover twenty years' arrears of interest in a foreclosure suit. This decision was, however, overruled by Lord Cottenham in Hunter v. Nockolds (1 Mac. & G. 640; 19 L. J., Ch. 177), where he laid down that the effect of the conjoint enactment is, that no more than six years' arrears of rent or interest in respect of any sum charged upon or payable out of any land or rent shall be recovered by way of distress, action or suit, other than and except in actions on covenant or debt on specialty, in which case the limitation is twenty years. (See Harrison v. Duignan, 2 Dru. & War. 298; Hughes v. Kelly, 3 Dru. & War. 482.)

It has since been held, in several cases, that in a foreclosure suit a mortgagee cannot recover more than six years of interest, although the mortgage debt is secured by covenant. (Sinclair v. Jackson, 17 Beav. 405; Shaw v. Johnson, 1 Dr. & Sm. 412; Round v. Bell, 30 Beav. 121.) The case is different where there is a trust to secure the money (see the cases as to trust, post, p. 254); but it makes no difference that the property mortgaged is reversionary. (Sinclair v. Jackson, 17 Beav. 405. See, however, Wheeler v. Howell, 3 K. & J. 198.)

In Mason v. Broadbent (33 Beav. 296), Lord Romilly, M. R., assumed as settled law that a mortgagor could redeem by payment of the principal of the mortgage debt and six years' interest; and accordingly held that where the mortgaged estate had been sold by a trustee for the mortgagee under a power of sale, and the mortgagor filed a bill to recover the surplus money, the mortgagee could not retain more than six years' arrears of interest. In Edmunds v. Waugh (L. R., 1 Eq. 418, however, Kindersley, V.-C., said, that there would be no justice in such a construction of the statute as should allow the mortgagor to redeem on payment only of six years' interest: and in the case of a sale, similar to that in Mason v. Broadbent, the purchase-money having been paid into court, and the mortgagee's trustees having petitioned for payment out of the fund, he held that the petition was not a suit to recover arrears of interest within this section, and that the trustees were entitled to more than six years' arrears of interest.

In Elvy v. Norwood (5 De G. & Sm. 240), it was held that the heir of a mortgagor who had covenanted for himself and his heirs to pay the mortgage debt and interest, could not redeem without paying twenty years' arrears of interest, as the mortgagee was entitled to tack the arrears of interest to the debt as against the heir. Since 3 & 4 Will. 4, c. 104, a mortgagee of freeholds may tack his simple contract debt in a foreclosure suit as against the heir of the mortgagor. (Thomas v. Thomas, 22 Beav. 341.) As to a mortgagee of copyholds, see Rolfe v. Chester, 20 Beav. 610. The question of tacking must be raised on the pleadings. (Sinclair v. Jackson, 17 Beav. 405.)

To an action of covenant upon an indenture of demise for rent the defendant pleaded the 3 & 4 Will. 4, c. 27, s. 42, and it was held, in Ireland, that that statute did apply to such a case. (Bruen v. Nolan, 1 Jebb & Sym. 346, n.) But as the statute 3 & 4 Will. 4, c. 42, did not apply to Ireland, the result was not the same as that which followed in England. (Paget v. Foley, 2 Bing. N. C. 67.) See also, in Ireland, Armstrong v. Lloyd, 2 Ir. L. R. 70; Wilson v. Jackson, 2 Ir. L. R. 1; O'Kelly v. Bodkin, 3 Ir. Eq. R. 390. Provisions similar to those contained in 3 & 4 Will. 4, c. 42, have since been applied to Ireland by 3 & 4 Vict. c. 105, ss. 32-36, and 16 & 17 Vict. c. 113, s. 20, et seq.

In a foreclosure suit, the defendants, some of whom were minors, by their answer relied on the Statute of Limitations as disentitling the plaintiff to

more than six years' interest. In the progress of the cause, an order was made upon consent, in pursuance of which a payment was made to the plaintiff on account of his demand. It was held, that, although such payment would have defeated the bar of the statute set up by the answer, had the transaction taken place between adults, yet as the interests of minors were concerned, the payment ought to be considered as made without prejudice to the rights, and subject to the equities of the parties in the cause, and ought not, therefore, to be permitted to defeat the defence relied upon by the answer. It is questionable how far the officer is authorized to decide between the parties in a cause upon a pleading by way of discharge, filed in the office, relying on the Statute of Limitations. (Thwaites v. M'Donough, 2 Ir. Eq. R. 97.)

3 & 4 Will. 4,

c. 27, s. 42.

Debts secured by judgments are sums of money charged upon or payable (2) ON JUDGMENTS. 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 (Ireland), 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.) Where the interest as well as the principal is secured by the judgment, it seems that in Ireland twenty years' arrears can be recovered in an action on the judgment. (16 & 17 Vict. c. 113, s. 20.) A judgment creditor of a tenant in fee, in remainder after an estate for life, is not entitled to recover out of the lands arrears of interest which accrued due during the existence of the tenancy for life, and more than six years before the commencement of the suit. (Vincent v. Going, 1 Jones & L. 697. See Wheeler v. Howell, 3 K. & J. 198; Sinclair v. Jackson, 17 Beav. 405.)

Formerly a judgment did not carry interest, but interest might be recovered at law, in the shape of damages, by an action on the judgment. (Gaunt v. Taylor, 3 Myl. & K. 302.) Now it is enacted by 1 & 2 Vict.

c. 110, ss. 17, 18 (post), that every judgment debt shall carry inte- 1 & 2 Vict. c. 110, rest at the rate of 41. per cent. from the time of entering up the judgment ss. 17, 18. until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment. Decrees and orders of courts of equity, and in bankruptcy and lunacy, and rules of the superior courts of common law, ordering the payment of money, &c. to any person, are to have the same effect as judgments in the courts of common law. (3 & 4 Vict. c. 105, s. 27, Ireland.) As to interest on debts generally, see the note p. 256, post.

A contract for the sale of an estate, made in March, 1811, stipulated that (3) ON UNPAID the purchase-money should be paid on the 13th May following. The money PURCHASE-MONEY, was not paid, but the purchaser entered into possession, and he and those claiming under him continued in possession. In 1849, a bill was filed to enforce the vendor's lien on the estate for the purchase-money. It was held, by Turner, L. J., that the principal had not become payable, as no title had as yet been shown by the vendor, and that the interest could not be due within sect. 42 until the principal money became payable. He said that the interest became due upon completion, although it was to be calculated from the inception of the contract. (Toft v. Stephenson, 5 D., M. & G. 735.)

On a bill to enforce a charge acquired by a judgment creditor on the (4) ON CHARGES. estate of the debtor a receiver was appointed, and at the hearing a reference as to incumbrances on the estate was directed. A claim for a sum charged upon the estate, carried in before the master under such inquiry by one who was 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.)