Certain incorporeal rights made absolute. Again, after the expiration of the period of limitation the person in possession need not show title in himself. His case is, that the estate under which the defendant claims has been extinguished, and consequently his own possession, whatever it is, cannot be disturbed, and, in pleading, the person in possession need only aver generally that twenty years have elapsed since the title of the defendant accrued, and need not state the special facts to bring it within the other sections (t). In the case of corporeal hereditaments, including tithes (u), the right and title thereto are, as just shown, extinguished, whilst in the case of incorporeal rights claimed in or out of lands(r), those rights are rendered, after the expiration of the specified periods of the enjoy ment thereof without interuption, absolute and indefeasible. (t) Jones v. Jones, 16 M. & W. 699; James v. Salter, 2 Bing. N. C. 505; 3 Ib. 544. (u) 3 & 4 Will. 4, c. 27, ss. 1, 34. (a) 2 & 3 Will. 4, cc. 74, 100. CHAPTER VIII. ACKNOWLEDGMENTS OF TITLE AND RIGHT. SECTION I. The Modes in which Acknowledgments are to be made. press or im plied. ACKNOWLEDGMENTS, for the purposes of the Statutes Are either exof Limitation, are either express, in writing, or implied, by part payment (a), and sometimes must be express, and sometimes may be either express or implied. An acknowledgment in writing cannot be open to Express. mistake, like the insecure and precarious testimony to be derived from the memory of witnesses (b), and is not open to fabrication like one merely by words, and being litera scripta, cannot deceive (c), and when required to be in writing parol evidence of it is excluded (d); but if the written acknowledgment be lost, parol evidence of it is admissible (e). In general an acknowledgment in writing must be Must be signed, signed, which, in strictness, means the subscribing the name or mark (f). The acknowledgment in writing required by the Statutes of Limitation (g) must be a (a) See Brandram v. Wharton, 1 B. & Ald. 463; Scholey v. Walton, 12 M. & W. 510. (b) 4 M. & P. 818; 7 Bing. 167. (c) Cleave v. Jones, 6 Ex. 573. (d) 1 Con. & L. 84; Kirkwood v. Lloyd, 12 Ir. E. R. 585, 600. (e) See Haydon v. Williams, 4 Moo. & P. 811, 7 Bing. 168, S. C.; Edmunds v. Downes, 2 Cr. & M. (f) Per Lord Ellenborough, (g) 9 Geo. 4, c. 14; 3 & 4 Will. 4, cc. 27, 42; 16 & 17 Vict. c. 113, s. 24 (I.); In re Clendinning, 9 Ir. C. R. 284; 23 & 24 Vict. c. 38, s. 13. -and how. writing with the solemnity of a signature, although by an account stated on one side only as distinguished from a settlement of accounts between the creditor and the debtor (g), and nothing short of that will bind the party (h). The signing must be, either by an actual signature of the name, or something intended by the writer to be equivalent to a signature; such as a mark by a marksman (i), or by stamping (j); or if a man be in the habit of printing his name instead of writing it, he may be said to sign by his printed, as well as by his written, name (k),—at least, where the printed name is recognized by, and brought home to, the party as having been printed by him or by his authority, so that the printed name is appropriated to the particular instrument (1); or by contraction (m); or even initials (n); and in the case of a will (o). But the identity of the writer, without his name, initials or mark, in or to the writing, is not sufficient (p). Cases, indeed, may arise where a total inability of parties to sign may exist, but the nature of the signature which is necessary to comply with the requisites of the statutes is such as to make it almost impossible to suppose a case in which a party could not make such a signature as would satisfy the statute (q). But an affidavit signed with the mark of the deponent when abroad in such a state of disease at the time as to (g) Pott v. Clegg, 16 M. & W. 321; Bristow v. Miller, 11 Ir. L. R. 461. (h) See Willis v. Newham, 3 You. & Jer. 519, 524. (i) Harrison v. Harrison, 8 Ves. 185; Addy v. Grix, Ib. 504; Selby v. Selby, 3 Mer. 2. (j) See Schneider v. Norris, 2 M. & S. 286; Bennett v. Brumfitt, 17 L. T. R., N. S. 213. (k) See Saunderson v. Jackson, 2 Bos. & P. 238. (1) Schneider v. Norris, sup. (m) The Queen v. Bradley, 3 E. & E. 643. (n) Lord St.John v. Boughton, 9 Sim. 219. (0) Re Christian, 2 Rob. 110; Re Amiss, Ib. 116; Re Ashmore, 3 Curt. 756. (P) Selby v. Selby, 3 Mer. 2. (q) Hyde v. Johnson, 2 Bing. N. C. 776; Helshaw v. Langley, 11 L. J., N. S. 17; Lessee of the Corporation of Dublin v. Judge, 11 Ir. L. R. 8. be unable either to read it, or to attach his signature, and as to render it necessary to get the British consul at Boulogne to read it over to him, was considered as not the act of the deponent, but of the person who prepared the affidavit, and therefore not an acknowledgment within the Common Law Practice Amendment Act (Ireland, 1853) (r), which is in the same terms as Lord Tenterden's Act (s). In general, for the purposes of the Statutes of Limitation (t), as well as for the purposes of the Statute of Frauds (u), the position of the signature is immaterial. The writing is to be signed, not the name of the person subscribed to it. The signature is to have the effect of giving authenticity to the whole instrument, and if the name is inserted so as to have that effect, it signifies little in what part of the instrument it is found (x). The name need not, as in the case of a witness attesting the execution of a will (y), be subscribed (z). The object of all these statutes is merely to authenticate the genuineness of the document; and when the person authenticates it by writing his name at the beginning, or in the body of it, that is his signature (a). But in the case of wills the signature of the testator is to be placed at the foot or end of them (b). The witnesses to a will are to subscribe it, and the position of their signatures may be most material (c). (r) 16 & 17 Vict. c. 113, s. 24; In re Clendinning, 9 Ir. C. R. 284. (8) 9 Geo. 4, c. 14; Hyde v. Johnson, 2 Bing. N. C. 776. (t) Bayley v. Ashton, 12 Ad. & Ed. 493; Lobb v. Stanley, 5 Q. B. 574; Holmes v. Mackrell, 3 C. B., N. S. 789. (u) Stokes v. Moore, 1 Cox, 219; Welford v. Beazely, 3 Atk. 503; Coles v. Trecothick, 9 Ves. 234; Morrison v. Turnour, 18 Ib. 175; Ogilvie v. Foljambe, 3 Mer. 53; Selby v. Selby, Ib. 2; Propert v. Parker, 1 Russ. & M. 625; Bleakley v. Smith, 11 Sim. 150; (x) Per Eyre, B., Stokes v. (z) Lobb v. Stanley, 5 Q. B. (a) See Lobb v. Stanley, sup.; Homes v. Mackrell, sup. (b) 1 Vict. c. 26, s. 9. (c) In the Goods of Wilson, 1 L. R., P. & D. 269. The position of the signature. As applicable, or inapplicable, to the entire writing. It cannot, however, be laid down, simply and without qualification, that it is immaterial in what part of a paper you find the signature of the party to be bound by it; it is rather true to say that, if you find it at the foot of the matter written, it is to be taken conclusively to apply to the whole, unless there be something expressly to rebut that presumption; and that if you find it anywhere else, it may apply to the whole, if upon the evidence you find that the party signing so intended. Where the intention to sign is found, and the signature is so placed as apparently to apply no more to one part than another, there can be no reason, primâ facie, to consider it otherwise than as intended to apply to the whole; but where the contents of the paper are divisible, and the signature is placed under or opposite one portion only, the question, whether it applies to all, or only to that one portion, is still purely one of intention. Now, wherever that question arises, it must be for the jury. These principles may be collected from the decisions on the Statute of Frauds, both as to wills and contracts (d). The mere introduction, however, into the instrument, by the person preparing it, of the names of the persons concerned, is not a sufficient signature, although, if after the instrument is prepared, those persons adopt it and deliver it to the person for whom it is intended, that might bind them (e). As respects the 4th section of the Statute of Frauds, the name of the party, and its application to the whole of the instrument, can alone satisfy the requisites of a signature. Therefore, if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have that legal effect and force which it (d) Per Coleridge, J., Foster v. Mentor Insurance Company, 3 Ell. & B. 48, 71. (e) See Hubert v. Turner, 4 Scott, N. R. 486. |