The difference between the situation of the Plaintiffs and that of the Defendant is this, that there is a presumption in favour of the Plaintiffs and not in favour of the Defendant. In the relation which subsisted between Earl George and the estate, the law presumes, that in paying off the sum charged, he did not intend to exonerate the estate. It may be be true, that if Earl George had known the nature of the charge, and that he might have raised it for his own benefit, he might have thought fit to exonerate the estate; but this is no more than conjecture, and, in the absence of sufficient evidence, it cannot countervail a legal presumption, and I am under the necessity of concluding, that Earl George did not, by his acts, upon payment of the portions, exonerate the estates from the additional portions charged thereon by the will of Earl Charles, and that after the payment of the portions in the year 1781, Earl George was entitled to have the amount raised for his own benefit. With respect to the Statute of Limitations, it was argued for the Defendant, that the right, if any, of Earl George to the charge on the land in respect of the portions, accrued, at the latest, on the 31st day of January 1781, when the last portion was paid. Releases having been given, it is said that the trustees could not have raised the portions at their own discretion, upon the demand of Earl George: that if he had desired to avail himself of the charge, and have it raised for his own benefit, he must have filed a bill against the trustees and the remainder-man; and that his right, in this respect, accrued sixty years before the present bill was filed. Earl George, it is said, if he had any right, was to be considered as in possession of an estate exonerated, with a right to re-impose the charge; and his right to re-impose 1844. BURRELL v. The Earl of 1844. BURRELL V. EGREMONT. re-impose the charge is lost by neglect, non-claim, and lapse of time, under the statute. This argument, however, assumes, that the estate was exonerated, which is The Earl of the point in question; but it is further said, that there is no pretence that any rent was ever applied, or intended to be applied, in payment of interest, so that Earl George, if he ever was entitled to the charge, received no interest upon it that he received the rents, and applied them to his own use, without any regard to the charges; and that his acts, in that respect, ought not to be qualified for the benefit of his executors. The statute (a) enacts, that no suit shall be brought to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, but within twenty years next after a present right to receive the same shall have accrued, to some person capable of giving a discharge for or release of the same, unless, in the meantime, some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given, in writing signed by the person by whom the same shall be payable or his agent, to the person entitled thereto or his agent. Now it is undoubted, that the right of Earl George to receive the charge accrued to him in the year 1781,— that no subsequent acknowledgment of his right thereto was ever made, and that more than twenty years after the right accrued expired in the lifetime of Earl George. But it is argued for the Plaintiffs, that the clause in the statute cannot be held to apply to cases which do not admit of the qualification referred to in the same clause, (a) 3 & 4 W. 4. c. 27. s. 40. and and that, under the circumstances of this case, Earl George ought to be deemed to have kept down the interest on this charge. The clause of the act assumes, that there is not only a person capable of giving a discharge or release, but also an assignable person by whom the charge is presently payable, or who is capable of paying the principal or interest of the charge, or of making an acknowledgment of the right thereto; but, in this case, there was a charge upon the estate which no assignable person was then liable to pay, and in respect of which no person was capable of making an acknowledgment that it was due, as, during the life of Earl George, it was necessarily uncertain who, at the time of his death, would be the person to take in remainder subject to the charge. It is further argued, that the statute can only apply to cases, where one person is entitled to receive and give a discharge, and another person is entitled to pay or capable of giving an acknowledgment of the right to the charge; and that if the statute were held to apply to a case like the present, it would apply to a case where the tenant for life had expressly declared his intention to keep the charge alive, or had procured a term to be vested in trustees for the purpose of keeping it alive, unless he had gone through the ceremony of paying money to the trustees, for the purpose of receiving it back from them under the name of interest on the charge. On the whole, it appears to me that the statute cannot be applied to a case where there is no assignable person liable to pay the charge, no person who, by the delay, could be induced to suppose that the charge was abandoned or merged, and where the rent, out of which the interest of the charge ought to be paid, is receivable by and belongs to the same person who is entitled to the interest. 1844. BURRELL v. The Earl of Before 1844. BURRELL v. The Earl of Before the charge was paid to the younger children, it was the duty of Earl George to pay or account for the interest to them, and to prevent any accumulation against the remainder-man. After the portions were If paid (supposing Earl George to have become entitled to of of the tenant for life, whose duty it was to pay the interest, for reimbursement. It was contended, that if the duty to pay comprised no duty to any one but the party entitled to receive, the Court would not interfere or in any way qualify the acts of the tenant for life, for the purpose of deeming the duty to be satisfied or not. I agree to that; but in the case of tenant for life, owner of a charge on the inheritance, it is not merely with reference to the party himself that the duty of paying the interest arises: he receives the income, and is entitled to the interest payable thereout; and when he has received the income, he is deemed to have paid or kept down the interest, not because of any duty which he owes to himself, but because he has a duty to another, i. e. to the remainderman, to prevent the accumulation of interest against him. If you suppose the charge to be a subsisting charge, there being no express payment of interest, no act by which the payment of interest can be proved, there would be an accumulation of interest against the remainder-man, if the law did not presume a duty to prevent it, and also a satisfaction or performance of that duty, by the person who received the income, by the due application of which the duty ought to have been performed. It is not, I think, necessary, to assume as a fact (though this has been done), that the tenant for life must have received the interest of the charge, at the times when he received the rents of the estate. It is sufficient, that, by a rule of law, the tenant for life of an estate who is also the owner of a charge on the inheritance must, in favour of the remainder-man, be deemed to have kept down the interest of the charge out of the rents received; and I think that the remainderman in whose favour this rule has been established cannot be permitted to contend, that the interest, thus VOL. VII. R for 1844. BURRELL บ. The Earl of |