IN RE ENGLAND, App.

L. S. Bristowe, for the summons.-The receipt of the rents and profits by the owner of the land charged, who was also tenant for life under the settlement, was equivalent to payment of interest on the principal, so as to keep alive the right of action on the covenant as against the personal estate. Where the hand to pay and the hand to receive are the same, the statute has no application-Topham v. Booth (1), Dibb v. Walker (2), In re Frisby; Allison v. Frisby (3), and In re Powers; Lindsell v. Phillips (4). The Statute of Limitations, otherwise applicable to the case, is section 8 of 37 & 38 Vict. c. 57, which applies to the right of action on the covenant in a mortgage-deed as well as to the remedy against the landSutton v. Sutton (5).

A. R. Ingpen, for W. G. England, his wife and children, adopted the same argument, and referred to Fearnside v. Flint (6).

C. M. Warmington, Q.C., and I. Badcock, for the other executor and trustee and the residuary legatees.-The right of action against the personal estate is barred by section 8 of 37 & 38 Vict. c. 57. There is no authority that the doctrine of presumption of payment of interest by an absolute owner of a mortgaged estate will keep alive the remedy under the covenant against the personal estate. On the other hand, there is direct authority that where a testator mortgages two estates, and devises one to A and another to B, payment of interest by A will not keep alive the remedy against B-Dickenson v. Teasdale (7). So in Coope v. Cresswell (8) it was held that an acknowledgment by the

(1) 56 Law J. Rep. Chanc. 812; Law Rep. 35 Ch. D. 607.

(2) 62 Law J. Rep. Chanc. 536; Law Rep. [1893] 2 Ch. 429.

(3) 59 Law J. Rep. Chanc. 94; Law Rep. 43 Ch. D. 106.

(4) Law Rep. 30 Ch. D. 291.

(5) 52 Law J. Rep. Chanc. 333; Law Rep. 22 Ch. D. 511.

(6) 52 Law J. Rep. Chanc. 479; Law Rep. 22 Ch. D. 579.

(7) 1 De Gex, J. & S. 52; 32 Law J. Rep. Chanc. 37.

(8) 36 Law J. Rep. Chanc. 114; Law Rep. 2 Eq. 106; 2 Ch. App. 112.

person entitled to the personal estate did not keep the right of action alive against the real estate. That is the converse of the present case, but the principle is the same. The cases cited against us were cases where the owner of the mortgaged estate was tenant for life only, and the ground of those decisions is explained by Lord Langdale in Burrell v. Lord Egremont (9)-namely, that the tenant for life of the mortgaged estate is under an obligation to the remaindermen to keep down the interest. That principle has no application to the case of an owner in fee.

L. S. Bristowe, in reply.-The specific devisee in fee has a duty to keep down the interest as between himself and other persons interested in the testator's estate. The case, therefore, falls within the principle stated by Lord Langdale in Burrell v. Lord Egremont (9). Payment made by a person properly in possession of the estate under the will enures according to the trusts of the will-Francis v. Grover (10). The dicta in Roddam v. Morley (11) shew that, though the decision was as between tenant for life and remainderman, that was merely an example of this wider rule-see, too, Pears v. Laing (12). Coope v. Cresswell (8) is distinguishable, the claim being by a bond-creditor against the real estate. Here the claim is against the personal estate, which ought not to have been distributed by W. G. England, one of the executors, without providing for the debt. In Dickenson v. Teasdale (7) there were two estates devised to different persons, and there was no obligation on one to pay on behalf of the other.

I. Badcock, in reply on the further cases cited. The presumption of payment only arises where there is a duty to pay the interest. In Francis v. Grover (10) and Pears v. Laing (12) the duty arose out of trusteeship. In the other cases the duty arose out of the relation between

(9) 7 Beav. 205, 237; 13 Law J. Rep. Chanc. 309.

(10) 5 Hare, 39; 15 Law J. Rep. Chanc. 99. (11) 1 De Gex & J. 1, 12, 16, 18, 19; 26 Law J. Rep. Chanc. 438.

(12) 40 Law J. Rep. Chanc. 225; Law Rep. 12 Eq. 41.

IN RE ENGLAND, App. tenant for life and remainderman. The owner in fee owes no duty to any one.

KEKEWICH, J.-It is agreed that the point I have to decide, though intimately connected with other cases which have been actually decided, and perhaps governed by them in principle, has never called for decision standing alone. The point arises in this way. By a settlement made in 1870 the testator covenanted to pay within twelve months after his decease the sum of 4,000l. and interest, and further covenanted that certain specified hereditaments should stand charged with the payment. The result was that what used to be called a specialty debt was thereby created, recoverable out of the testator's personal estate, and also in a due course of administration out of his real estate, but also charged primarily on the real estate specified in the settlement. It is common ground that the 4,000l. still remains unpaid, and that no interest has been actually paid for more than twelve years before the commencement of these proceedings, so that if section 8 of 37 & 38 Vict. c. 57 touches the case, there is no remedy left for those who are entitled to the 4,000l. and interest. I say that it is common ground that no actual payment of interest has been made; but it happens, as has often happened before, that there is a partial identity between the persons entitled to the charge and the persons entitled to the property affected by the charge; and in this case the peculiarity is that the same person, W. G. England, is tenant for life of the charge under the settlement, and is also devisee in fee of the estate charged with the 4,000l., and he has been so since 1871. He has not paid the interest, but he has been in receipt of the rents and profits, and in one sense he may be correctly said to have paid the interest to himself. It is not argued that the charge is gone as against the specifically charged real estate, notwithstanding that no payment has been made and no acknowledgment given. Probably, so far as that goes, the case falls within the principle of Burrell v. Lord Egremont (9), decided by Lord Langdale, which has been followed in numerous

other cases under varying circumstances, such as Roddam v. Morley (11), Dibb v. Walker (2), and Topham v. Booth (1). But the question arises whether the circumstances existing in this case, which are presumably sufficient to keep the charge alive as against the specifically charged real estate, are also sufficient to keep the right of action alive as against the personal estate; and I gather that the question is one of some importance, as this is one of those unfortunate cases in which the real estate charged is not so valuable as it formerly was, and it may be necessary to resort to the personal estate for satisfaction of the covenant. There are numerous cases, including those which I have mentioned, in which payment by the tenant for life of real estate has been held sufficient to keep a charge alive, even as against the personal estate. And the cases go further than this-that where the tenant for life is the person to receive and to pay, there is no necessity for cross cheques for sham payments, entries in books, or the like; but the mere fact that the hand to pay and receive is the same is sufficient. That brings me to the novelty of the case, because here there is no tenant for life of the mortgaged estate, as in other cases; but the person in possession is not tenant for life, but tenant in fee. It has been argued in more than one way, and the cases suggest more than one way of arguing it. Mr. Warmington put it principally on the question of duty, and Mr. Badcock, in reply on the further cases cited, has followed that up in the remarks which he has made. What is the duty of a devisee in fee as regards those entitled to the personal estate? A tenant for life has, no doubt, a duty towards the remainderman. Every tenant for life is bound to keep down the interest on the property of which he is tenant for life, and he owes that duty to the remainderman, who, by proper proceedings, can compel him to perform it. But it is asked, What is the duty of a tenant in fee to any one? It is a matter entirely for his own consideration whether the charge should be kept alive or not. He may be content that it should be kept alive, or he may be content that it should

IN RE ENGLAND, App. drop, instead of paying interest to keep it alive. But there is also a question of agency. That view appears in two or three of the cases. In Dibb v. Walker (2) Mr. Justice Chitty says this: "Lord Wensleydale, in Forsyth v. Bristowe (13), lays it down that payment of interest by the assignee of the equity of redemption (which plainly includes tenant for life of the equity of redemption) is clearly payment of interest, and that the statute 3 & 4 Will. 4. c. 42, s. 5 did not expressly require that it should be made by the party liable, or his agent; and that, if it implied it, the assignee of the equity of redemption who covenants to pay is sufficiently an agent for that purpose. In regard to this doctrine of agency, it is to be observed that payment of interest by an agent is not expressly mentioned in the 5th section of the statute under consideration "--that is, 3 & 4 Will. 4. c. 42 -"but it appears to be imported from the other part of the section, which speaks of acknowledgment made by writing by the party liable, by virtue of the indenture or specialty, or his agent, and by the general tenor of the section, which treats payment of interest as an acknowledgment." Looking at the case from that point of view, and putting aside the question of duty, it may be that the tenant for life of the charged estate, by reason of the relation existing between him and the remainderman, is in the position of an agent. But how can the devisee in fee be the agent for the persons who are entitled to the personal estate, and who are liable to pay, because that estate is theirs? There really is no connection between them. They both claim, no doubt, through the same testator, but under different devolutions of title; and I fail to see how the devisee in fee can in any sense be said to be the agent of those other parties. That illustrates the advantage of looking at the case from another point of view, though it comes round to the same thing. If the devisee in fee has a duty to do it, it is easy to see that he is agent for the purpose of doing it. If he is agent for

(13) 8 Exch. Rep. 716; 22 Law J. Rep. Exch. 255.

the purpose of doing it, it is easy to see that he has a duty to do it. The two things are more or less correlative. But looking at each by itself, it seems to me extremely difficult to say that there is a duty or that there is a case of agency, and that seems to afford a solution of the question which I have to decide. To turn to the authorities, in Coope v. Cresswell (8) a point under the Statute of Limitations was argued and decided which closely bears on that before me now. There the question was not whether the statute was prevented from operating so as to bar the claim against the personal estate by reason of any payment or acknowledgment by the owner of the real estate, but exactly the converse casee-namely, whether a payment or acknowledgment by the person entitled to the personal estate kept the right of action alive as against the real estate. The case came in the first instance before Vice-Chancellor Kindersley, and he states the question in this way: "The question then resolves itself into thiswhether the payment of interest within twenty years by those whose duty it was to apply the personal estate, and the proceeds of sale of the Pinkney estate, in payment of debts, prevents the devisee of the Devon estate from setting up the statute." The Vice-Chancellor had before him both the cases which have been referred to of Dickenson v. Teasdale (7) and Roddam v. Morley (11). He certainly intended to decide according to Roddam v. Morley (11), and not to decide adversely to Dickenson v. Teasdale (7). He commented on those cases, and said that in the event he was justified in holding that the defendants could not plead the Statute of Limitations. Now that case went on appeal before the Lord Chancellor, who again had before him the cases of Roddam v. Morley (11) and Dickenson v. Teasdale (7), and held, reversing the decision of the Vice-Chancellor, that the payment by those entitled to the personal estate was not sufficient to keep the right of action alive against the real estate. A decision under those circumstances deserves far more consideration, as it seems to me, than a mere expression of opinion, however necessary for the pur

IN RE ENGLAND, App. poses of the case, by a Court of Appeal or any Judges of a Court of Appeal. I must look at the decision with reference to all the circumstances which led to it, and, seeing that these cases were before the Court, and that the Vice-Chancellor's decision on them was reversed, it seems to me that I have there an authority of the very highest character; and though, as at present advised, it is not necessary for me to go so far, I must say that I cannot see the difference in principle between the case decided in Coope v. Cresswell (S) and the case before me. It is difficult to see how, if payment by the owner of the personal estate does not operate to keep the right of action alive as against the real estate, it can in principle be said that payment by the owner of the real estate will keep the right of action alive as against the personal estate. But then, having said that, I come back to the fact that there was in this case no actual payment or actual acknowledgment, but a mere continuance in possession by the person entitled for life to the charge and entitled in fee to the hereditaments charged, and I confess that seems to me to afford a very wide distinction. It has not been deemed improper by Judges to say that it would be a satisfaction, not to them only, but to the profession at large, if a point of novelty and difficulty were taken to the Court of Appeal ; and I venture to say that, in view of the numerous cases, not at all easy to apply to the matter in hand, which have been cited before me, there would be some advantage in having the matter threshed out before a higher tribunal. For myself, I must hold that the statute is a bar to the claim against the personal estate.

The plaintiff appealed.

A. R. Ingpen and L. S. Bristowe, for the appellant.-Captain England must be presumed to have paid the interest as mortgagor to himself-Rafferty v. King (14), Corbett v. Barker (15), Burrell v. Lord Egremont (9), and Topham v. Booth (1)

(14) 1 Keen, 601; 6 Law J. Rep. Chanc. 87. (15) 3 Anstr. 755.

-and thus prevented the statute from running as regards the residuary personal estate. The rule that where a man unites the two capacities of payer and receiver he must be presumed to have acted rightly in both applies equally whether he is in possession as tenant for life or as tenant in fee-simple-Lord Kensington v. Bouverie (16) and Dibb v. Walker (2).

The money being charged on the estate, under Locke King's Act (17 & 18 Vict. c. 113) the estate is primarily liable, the personalty and personal representatives are in the position of a surety, and the keeping down the interest by the principal keeps the debt alive against the personalty. There has been a conflict of decisions between Roddam v. Morley (11), which proceeded on the reasoning here contended for, that payment by one person interested keeps the debt alive against all who are liable, and Coope v. Cresswell (8), in which Lord Chelmsford, overruling Kindersley, V.C., dissented from that reasoning. Dickenson v. Teasdale (7), on which Lord Chelmsford proceeded in deciding Coope v. Cresswell (8), was a decision on a different Act of Parliament-3 & 4 Will. 4. c. 27. Roddam v. Morley (11), in which the question arose, as here, upon 3 & 4 Will. 4. c. 42, has been followed frequently since Coope_v. Cresswell (8)-Pears v. Laing (12), In re Hollingshead (17), In re Frisby (3), and Dibb v. Walker (2).

[LINDLEY, L.J.-Forsyth v. Bristowe (13), the authority on which Roddam v. Morley (11) was decided, is nearer to this case than any other cited.]

Barclay v. Owen (18).

C. M. Warmington, Q.C., and I. Badcock, for the respondent. The statute applicable to this case is not 3 & 4 Will. 4. c. 42, but 3 & 4 Will. 4. c. 27, as amended by the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), which reduced the period to twelve years. If an action is brought on a covenant merely the former Act applies, but if it is both to realise a security and enforce a covenant

IN RE ENGLAND, App.

the latter Acts are applicable-Sutton v. Sutton (5).

As to the first point, what, in the case of an owner in fee-simple, will the presumption, if any, as to the performance of his duty imply? Not payment of interest, but payment of principal. The duty imposed on a life tenant to keep down the interest on a charge is a duty not towards the owner of the charge, but towards those who are entitled in remainder to the estate-In re Morley (19). There is no person towards whom the tenant in feesimple owes any corresponding duty, and therefore there is no presumption of payment in his case. All the cases cited are of tenants for life, and rest upon the duty of keeping down the interest-Rafferty v. King (14), Burrell v. Lord Egremont (9), and Lord Kensington v. Bouverie (16). The tenant in fee-simple is under no greater obligation to pay the interest than to pay the principal. Why should he not just as well be presumed to have paid the principal ?

[LINDLEY, L.J.-That presumption cannot be made, because the principal is not payable to him?]

[RIGBY, L.J.-If under Locke King's Act the estate is primarily liable, is he not bound to indemnify the personal estate against the interest so long as he remains in possession?]

On the death of the testator the obligation was divided. Instead of one obligation binding him, there were two obligationsone on the devisee the other on the personal representatives. The cases shew that where there are several obligationsthe payments or acknowledgments of one obligor will not affect the others-Dickenson v. Teasdale (7). Coope v. Cresswell (8) has never been overruled, and is good law. In Boatwright v. Boatwright (20) there is an obiter dictum of Jessel, M.R., which is in the respondent's favour.

A. R. Ingpen replied.

LINDLEY, L.J.-This case is somewhat peculiar, and involves a point which, so far

(19) 38 Law J. Rep. Chanc. 552; Law Rep. 8 Eq. 594.

(20) 43 Law J. Rep. Chanc. 12; Law Rep. 17 Eq. 71.

as I know, has never actually arisen befor and is not governed by any of the num rous authorities to which our attenti has been directed.

It appears that on the 20th of Se tember, 1870, the testator made a settl ment by which he covenanted to pa 4,000l. twelve months after his deat The person entitled to sue upon that cov nant is the surviving trustee of the settl ment. By the same settlement certa estates belonging to the settlor and te tator were charged with the payment that 4,000l. The settlor died in Jun 1871, leaving a will by which he devise the estate so charged with that 4,000l. t Captain England in fee, and Captai England was himself the tenant for li of that 4,000l. or the beneficiary entitle to the interest on that 4,000l. for his life After that the beneficial interest went t his wife. The residue of the testator' estate was devised and bequeathed to hi trustees upon trust to sell and pay th ultimate residue to his daughters and their children. Captain England wa one of the executors and trustees o the will. The position of affairs is this After the testator's death there was clearly a right to sue upon that covenant for the 4,000l. a right on behalf of the trustee o the settlement to sue the executors twelve months after his death. When that sum became payable there was a right on the part of the same trustee to take proceedings to have that charge raised out of the real estate. Captain England, the devisee of the estate so charged, was liable not to pay the charge, but was liable under the statutes to the amount of the value of the estate to pay it, because that was settled under the statute of William and Mary, or the statute of Will. 4. which has replaced that. He has paid nothing. He is therefore liable to account for the value of the estate. I do not know if it has been decided whether the value of the estate is to be taken when proceedings are brought or at the death of the testator, but it would seem wrong that the value at the death should be the proper value if the payment is not enforced for long afterwards. But he is not liable to pay the money, but to account for the assets. What took place was this: Captain Eng