charged. It is clear by the production that it was not cancelled; a release therefore might have been executed." A verdict, accordingly, was found for the defendant (a).

But in general, an admission or acknowledgment by the obligor that the bond has not been satisfied, will deprive him of the benefit which he would otherwise have from the long forbearance of the obligee. This was admitted by the Master of the Rolls, in a suit in Chancery on the same bond as occasioned the proceedings at law in the case just stated (b); and in Toplis v. Baker (c), the point was expressly decided.

One of the plainest and most significant modes of acknowledgment that a bond remains undischarged is payment of interest. So that evidence of interest having been received at any time within twenty years before the commencement of an action on the bond will save the right of the obligee (d). The presumption of

(a) Washington v. Brymer, Peake on Evidence, 4 Ed. App. 76. That a parol discharge, however, will not in general be effectual, where the demand is secured by deed, see Cupit v. Jackson, M'Clel. 495; Gilbert v. Wetherell, Hemming v. Gurrey, 2 Sim. and Stu. 254, 311, 320.

(b) Sec 6 Ves. 519.

(c) 2 Cox, 118. See also Cowp.

109.

(d) Searle v. Lord Barrington, 2 Stra. 826; 2 Lord Raymond, 1370; 3 Bro. P. C. by Toml. 593. In this case, where it appeared that there were indorsements on

the bond in the obligee's own hand writing, acknowledging the receipt of interest on different occasions, some within the period of twenty years from the date of the bond, and others within the like space of time before the commencement of an action for the recovery of the debt; it was held, that that evidence was sufficient to rebut the presumption of payment, though nearly thirty years had elapsed since the execution of the bond. The reason given for admitting the indorsements evidence was, that it had been the general practice of the obligee

as

payment may also be resisted on the ground of the obligor's poverty, and consequent inability to pay (a); or of his absence beyond sea, by which the obligor was prevented from pursuing his demand with effect (b).

It likewise seems, that the long continued absence abroad of the creditor will prevent the application of the general rule. The obligor being thus precluded all opportunity of making the supposed payment, no foundation exists on which an allegation to that effect can be reasonably supported (c).

to indorse the payments of interest, and this perhaps with the privity, and certainly for the sake of the obligor, who was made more secure by such indorsements than by taking loose receipts. But it should be observed, that in order to make indorsements effectual to rebut the presumption of payment, some of them must appear to have been made within twenty years from the time when the bond was forfeited, or within twenty years from some other period when the debt is clearly proved to have existed; in other words, such indorsements must have been made

before they would be thought necessary to encounter a presumed satisfaction (Turner v. Crisp, 2 Stra. 827, cited; per Lord Hardwicke, 2 Ves. 43.), and at a time when the effect of them was clearly adverse to the writer's interest (Rose v. Bryant, 2 Camp. 321).

(a) Fladong v. Winter, 19 Ves. 196; and Wynne v. Waring, there cited. See also 12 Ves. 266, and Cowp. 109. Sed vide Willaume v. Gorges, 1 Camp. 217.

(b) Newman v. Newman, 1 Stark. N. P. Rep. 101.

(c) 12 Ves. 266; 19 Ves. 200.

CHAPTER XX.

PRESUMPTIONS OF FACT CONTINUED.

Of the presumed Satisfaction of Annuities, Portions, Legacies, Liens for Purchase Money, and other Demands not within the Statute of Limitations.

I. ANNUITIES, whether the subject of gift or purchase, are, like debts and other demands secured by specialty (which have been considered in the last chapter), liable to the implication of satisfaction or a release, from long neglect to enforce the payment of them. And it seems, that a lapse of twenty years between the last payment and the time when a legal demand is made, unanswered, will defeat the annuitant's right (a).

But a less period than twenty years will not supply the inference that an annuity has been discharged or released, unless there be some auxiliary evidence which by its own proper force supports the presumption and makes up the deficiency of time (b). So, although no payment of interest may have been made for more than twenty years, yet if the existence of the annuity has been acknowledged within that time, it will rebut any

(a) Smallman v. Hamilton, 2 Atk. 71; Southcot v. Southcot, 1 Cha. Rep. 108; Bales v. Procter, Ib. 144. See also Bonnington v. Walthall, 2 Cha. Rep. 219. Sed

vide Duke of Albemarle v. Lady Purbeck, Fin. Rep. 252.

(b) See Aston v. Aston, 1 Ves. 264; Cupit v Jackson, McClel.

495.

defence grounded solely on the plaintiff's delay in prosecuting his claim (a).

It has been contended, that although where by reason of the shortness of time, or from particular circumtances, the presumption of satisfaction does not arise, an account of the arrears of an unpaid annuity cannot be carried back further than six years, that being the period to which accounts are restricted in cases where the rents and profits of estates are recovered in equity or by action at common law (b). The point, however, has been decided to the contrary. And it seems that whenever the right to an annuity itself is not defeated, all the arrears may be recovered (c).

In the case of annuities granted by way of pin-money, there is a distinction to be observed with regard to the amount of arrears, which may be recovered at the husband's death. If the husband and wife have lived together, the arrears for the preceding twelve months only can be called for, because the wife having had the advantage of residing with her husband, is supposed in that way to have had her claim satisfied (d), or in consideration of her maintenance to have

(a) Wynn v. Williams, 5 Ves. 130, 134.

(b) Harmood v. Oglander, 6 Ves. 199, 215. See also 10 Ves. 469, 470.

(c) Aston v. Aston, 1 Ves. 264; Wynn v. Williams, 5 Ves. 130; Cupit v. Jackson, M'Clel. 495.

(d) 1 Ves. 267; Offley v. Of

fley, Prec. Cha. 26. It may be remarked, that a similar rule applies to the case of a fund settled to the separate use of a feme covert, who suffers her husband to receive and appropriate the yearly income without complaint. Powell v. Hankey, 2 P. Wms. 82, and note by Cox, Ib. 84.

waived it (a). But where the parties have lived separate, and the wife has not received a distinct and particular allowance for her support, the court will decree an account as far back as the arrears go (b). So, if the wife were of unsound mind, all the arrears will be recoverable although she might continue to reside with her husband, because her condition rendered her incapable of waiving her right (c).

II. Portions which are charged on real property, are not unfrequently suffered to remain on the security of the estate after they become due. When this is the case, so long as interest is paid or the demand otherwise periodically acknowledged, the right of the party entitled to the portion, of course, cannot be prejudiced. But if neither interest be received, nor regular acknowledgments of the existence of the charge be made by the land-owner, a neglect of the portioner to pursue his right within a reasonable time, as twenty years, will raise the presumption that the portion has been satisfied or released (d).

An admission of the right within twenty years before the commencement of a suit will exempt the case, as it has been intimated, from the principle of implied satisfaction; and to have this effect, it is immaterial

(a) Thomas v. Bennet, 2 P. Wms. 341; Ridout v. Lewis, 1 Atk. 269. The latter case also shows that a parol promise made by the husband to the wife, that she should have the arrears of her pin-money, is another effectual

ground of exception from the general rule.

(b) See 1 Ves. 267.

(c) See Brodie v. Barry, 2 Ves and Be. 36, 39.

(d) Standish v. Radley, 2 Atk.

177.