When applicable.

When inapplicable.

in the same section, are in pari materiâ, and it is no sufficient reason for construing them differently that the last has some words which are wanting in the first (t). Therefore the express mention of mortgages in the proviso is to be construed so as to include them in both branches of the section (u). So, also, as in the first clause of this section, charges on rent as well as on land are expressly mentioned, and in the proviso land only is mentioned as the subject of the charge; and as in the sect. 40, which is also in pari materiâ, rent as well as land is mentioned as the subject of charge, the proviso in the sect. 42 may also include charges upon rent. This provision, however, has been said not by any means adequately to provide for the various cases for which, where there are several mortgagees [mortgages?] upon the same estate, provision was necessary, and was obviously meant to be made (x).

Although the claimant of arrears subject to prior incumbrances do not enforce every equitable right he has, he is still entitled to the benefit of this exception. Therefore, where an equitable annuitant, to whom priority over a legal charge had been given, but whose annuity was still subject to the possession of a person under a legal right derived under a prior title, preventing the annuitant from either recovering the possession or distraining, did not file his bill to enforce his charge, he was held entitled to more than six years' arrears (y).

This section does not apply where the legal holder of a defunct or satisfied charge or incumbrance, or of an existing charge or incumbrance, is not himself actually in possession, or in receipt of the rents and profits, but where an individual is in that possession, or in that actual receipt, who is entitled, by a trust declared in

(t) 3 Ad. & E. 895.

(u) See Henry v. Smith, 1 Con. & L. 506; Bolding v. Lane, 3 Giff. 561, 574.

(x) Per Wigram, V.-C., Du Vigier v. Lee, 2 Hare, 333. (y) Drought v. Jones, 2 Ir. Eq. R. 303.

equity, to the benefit of that outstanding charge or incumbrance (z); nor to the case of a tenant for life and a remainderman, where the estate for life is not, and the remainder is, bound by a judgment (a).

Although in equity, before the 3 & 4 Will. 4, c. 27, a charity was not barred by the Statute of Limitations, 21 Jac. 1, c. 16, yet in directing an account of rents in favour of a charity, the Court, in general, adopted the period fixed by that statute in matters of account, six years, as a rule in determining the period over which the account should be extended (b), especially when the question was what was the effect and true construction of the instrument under which the trust was created (c).

If, indeed, the rents of the charity property clearly appeared to have been received by persons to whom they clearly did not belong, the account would not be for a shorter period than the strict right demanded (d). In one case, indeed (e), an account for a period of 200 years was directed; but the defendants, by their answer, submitted to account generally, and stated that the amount received by the corporation would appear from their books, and that they had always been willing to account. And in Attorney-General v. Brewers' Company (f), an account of rents for a period of thirtyseven years was directed.

As turnpike tolls are not land within the meaning of the section 1 of the last statute (g), arrears of interest for a sum charged on such tolls are not within this period of limitation of six years (h).

In spiritual

courts.

The period of limitation for tithes, as a chattel (¿), legacies, or other property which may be recovered at law or in equity, is the same in any spiritual Court as at law or in equity (k).

Period for

land or rent

commences

SECTION III.

The several Termini from whence the Different
Periods of Limitation are to be computed.

The several termini from whence the different periods of limitation stated in the last Section are to be comfrom the first puted, especially in relation to the subjects to which the 3 & 4 Will. 4, c. 27, is applied, are various.

accruer of the right.

Sometimes before.

The provisions of c. 27 regulating this.

Where the right to land or rent is claimed at law, the twenty years are computed from the time when the right to recover first accrues, either to a person through whom the claimant claims, or to the claimant himself, and not generally from the cause of action or suit, as in the 3 & 4 Will. 4, c. 42, s. 3 (1).

In some cases as to land, in the case of rent, and also in some other cases, the statute makes the time of limitation to begin from a time before the right to recover has accrued (m).

The various cases in which the right is to be deemed to have first accrued generally, and, under certain circumstances, with respect to the nature of the estate or interest in the property claimed, are specially provided for by the section 3, the six next following sections, and the section 15; and the object of these sections is to explain and give a construction of the enactment contained

(i) Vide Chap. III., Sect. II. of this Book.

(k) 3 & 4 Will. 4, c. 27, s. 43.

(1) Sandars v. Coward, 15 M. & W. 48

(m) 16 M. & W. 565; 5 Ex. 181; 9 Q. B. 358.

in the section 2, as to "the time at which the right shall be deemed to have first accrued," but only in those cases in which doubt or difficulty might occur, leaving every case which falls plainly within the general words of the 2nd section, but is not included amongst the instances given by the 3rd, and these other sections, to be governed by the operation of the 2nd (n), and the cases specified are not merely by way of illustration, but determine, in those cases, the point of time from which the time limited by the section 2 is to be computed (o); and in all other cases, not so specified, the time when the right accrues is to be determined according to the nature and circumstances of the case.

Dispossession,

or discontinuance of pos

Where the claimant, or some one through whom he claims either as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or ge- session. neral occupant, executor, administrator, legatee, husband, assignee, appointee, devisee or otherwise, or as lord by escheat (p), has been, in respect of the estate or interest claimed, in possession or in receipt of the profits of the land, or in receipt of the rent, and while entitled thereto has been dispossessed, or has discontinued such possession or receipt, the right first accrues at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were or was so received (q).

The words dispossession or discontinuance of posses- But of land sion here used are applicable, not to rent, but to land only. only (r).

Dispossession means the actual ouster or expulsion of Dispossession, a person having a right to the possession (s).

The withholding of tithes by the occupier of land, if

(n) 3 Bing. N. C. 553. See also

2 Ib. 513; 3 Ir. L. R. 463.

(0) 2 Bing. N. C. 515. (P) Sect. 1.

(q) Sect. 3.

(r) 16 M. & W. 564; 5 Ex. 178. See also sects. 10, 11.

(8) See 10 C. B. 34.

what.

the non-render of them be within the 3 & 4 Will. 4, c. 27, would not be dispossession (t).

Discontinuance of possession means the quitting possession of land to the possession of which the person quitting was entitled, analogous to dispossession-the ceasing to possess when he had a right to possess (u), followed by the actual possession of another person.

To constitute the discontinuance, there must be both dereliction by the person who has the right, and actual possession, whether adverse or not, to be protected (v). Thus a husband and wife in possession of land, and seised in fee in her right, the husband being also tenant by the curtesy initiate (x), quitting, and for forty years (y) remaining out of possession, which is taken and continued by another person, is a discontinuance of possession, and operates an absolute bar (z).

But a tenant in tail, executing a conveyance by a feoffment, operating a discontinuance of the estate tail, ceases to be entitled to the land conveyed, and cannot therefore be said to have discontinued his possession while entitled thereto within the section 3 (a).

The discontinuance by a landlord of the receipt of rent from his lessee is not a discontinuance of possession by him, for until the expiration of the lease there is no right to the possession (b).

The relinquishment of the possession of the estate of a wife by her and her husband to a stranger, on the conveyance of the husband, is not a discontinuance of the possession within this section (c), as the relinquishment

(t) See Lord Shannon v. Hodder, 2 Ir. L. R. 223, n.

(u) Cannon v. Rimington, 12 C. B. 1; Austin v. Llewellyn, 9 Ex. 276.

(v) M'Donnell v. M'Kinty, 10 Ir. L. R. 514; Smith v. Lloyd, 9 Ex. 562; Poole v. Griffith, on error, 15 Ir. C. L. R. 277.

(a) Co. Litt. 30 a.

(y) Sect. 7.

(z) Doe d. Corbyn v. Branston, 3 Ad. & E. 63.

(a) Cannon v. Rimington, 12 C. B. 1.

(b) Doe d. Davy v. Oxenham, 7 M. & W. 131. See also Grant v. Ellis, 9 Ib. 113.

(c) Jumpsen v. Pitchers, 13 Sim. 327.