In the case of an action to recover money out of land an acknowledgment, in order to create a new starting point from which time will run, must be given in writing signed by the person by whom the money is payable or his agent to the person entitled thereto or his agent (g).

The words "by the person by whom the same is payable or his agent," used in the statute with reference to an acknowledgment, are governed by the word "signed" and cannot grammatically be read as referring also to a part payment. It has, however, been held that the principle underlying the statutes of limitation is that a payment, in order to create a new starting point, must be a payment by a person liable, as an acknowledgment of right. A payment under this section must be a payment of principal or interest and must be made by the mortgagor or his agent, or at least by a person bound or entitled to make a payment of principal or interest for the mortgagor (h). A payment of rent made by a tenant of the mortgaged property to the mortgagee pursuant to a notice by the mortgagee requiring the rent to be paid to him is not such a payment. It is not a payment of principal or interest, but a payment of rent. It is merely one item chargeable against the mortgagee in the account between him and the mortgagor - an account which may contain many items, e.g., for repairs, expenses, etc., to the credit of the mortgagee besides principal and interest. It is not a payment by a person liable to pay principal or interest, and cannot therefore amount to an acknowledgment of liability on the mortgage or to an admission of the mortgagee's right (i).

(t) As to what is an "express trust" within the meaning of the old rule, see review of cases in Taylor v. Davies, 1917, 41 O.L.R. 403.,

(g) R.S.O. 1914, c. 75, s. 24. See Sec. 264, supra. Compare the terms of s. 14 as to the acknowledgment required in order to create a new starting point in the case of an action to recover land. See Sec. 272.

(h) As was the receiver in the case of Chinnery v. Evans, 1864, 11 H.L.C. 115.

If, however, the holder of a mortgage upon land is also entitled to the rents and profits of the land, for instance, as life tenant, he is deemed to pay himself out of the rents and profits, and his receipt of the rents will be sufficient payment to prevent the statute from running (j).

The solicitor who acted for a mortgagor, and after his death for his executors, and also for the mortgagees, paid the interest upon the mortgage to the mortgagees regularly up to a time within the statutory period before the commencement of an action to enforce the mortgage. It was held this was prima facie a payment "by the person by whom the same shall be payable" so as to throw on the representatives of the mortgagor the onus of proving that the statute had run and that the mortgage debt had not been kept alive. It was also held that the payment of interest by a person who, as-between himself and the mortgagor, was bound to pay it, though he was under no contract with the mortgagee to do so, was a payment" by the person by whom the same shall be payable" so as to interrupt the running of the statute (k).

A payment made by a purchaser of the equity.of redemption who is bound as between himself and the mortgagor to pay is sufficient to prevent the statute from running in favour of the mortgagor (l).

(i) Harlock v. Ashberry, 1882, 19 Ch.D. 539; cf. McDonald v. Orundy, 1904, 8 O.L.R. 113, at pp. 115, 116. *

(j) Burrell v. Earl of Egremont, 1844, 7 Beav. 205;. Topham v. Booth, 1887, 35 Ch.D. 607; Currie v. Currie, 1910, 20 O.L.R. 375.

(k) Bradshaw v. Widdrington, [1902] 2 Ch. 430, In which Harlock v. Ashberry, supra, was considered and explained.

(l) See Sec. 272, infra; Trust and Loan Co. v. Stevenson, 1892, 20

Payment of interest by the specific devisee of part of a testator's real estate which was subject to a mortgage created by the testator was held to be sufficient to keep the mortgagee's right of action alive against the specific devisees of other parts of the real estate which were not subject to the mortgage and thus entitle the mortgagee to an order for administration of the whole of the testator's real estate (m).

The provision of s. 56 of the Limitations Act (n) by which no joint debtor or covenantor is to lose the benefit of the statute by reason only of an acknowledgment or payment made by another joint debtor or covenantor applies only to an acknowledgment or payment under ss. 54 and 55, not to an acknowledgment or payment under ss. 14 and 23 (o) or under s24 (p).

The acknowledgment or payment under s. 24 must be given or made "in the meantime," that is to say, before the statutory period has run (q).