As evidence arrears. incumbrances, and the settlor cuts down his estate, which is subject to the prior incumbrances, to an estate for life, an acknowledgment signed by him, after he has become tenant for life, is an acknowledgment signed by the person by whom the interest is payable within the meaning of the section 42 of the 3 & 4 Will. 4, c. 27; for although a sum of money secured by a bond is not a sum of money payable out of land within the meaning of the 3 & 4 Will. 4, c. 27 (z), yet as a payment or acknowledgment by a tenant for life of lands devised by the obligor in a bond, after the date of the bond, is binding on a remainderman under the statute of the 3 & 4 Will. 4, c. 42 (a), there is no substantial difference between that case and a payment or acknowledgment by a tenant for life under the 3 & 4 Will. 4, c. 27. It may no doubt be argued that there is a distinction between a payment by a tenant for life, who thereby performs the duty of keeping down the interest, and an acknowledgment in writing as to interest being due, which is not in accordance with his duty as tenant for life; but it is to be observed that the express language of the 3 & 4 Will. 4, c. 42, places acknowledgments by writing, and acknowledgments by payment, on exactly the same footing. The two statutes are in pari materiâ, and the language in both, with reference to acknowledgments, is much the same. Therefore an acknowledgment by payment of interest by such a tenant for life preserves the charge against the remaindermen, although infants (b). An acknowledgment by a tenant for life of lands of amount of charged with a rent-charge in fee is, under the section 42, evidence against the remainderman as to the amount of arrears of such rent-charge (c). (z) Roddam v. Morley, 2 K. & J. 366, S. C. 1 De G. & J. 1. (a) Roddam v. Morley, 1 De G. & J. 1. (b) Re Fitzmaurices, Minors, 15 Ir. Ch. Rep. 445. See also Burrowes v. Gore, 6 H. L. C. 907. (c) Smith v. Smith, 5 Ir. Ch. Rep. 88. In Bolding v. Lane (d), Lord Westbury, C., said, the intention of the 3 & 4 Will. 4, c. 27, s. 42, was to enact a plain and simple rule, that no person having a charge on lands shall recover more than six years' interest on such charge, against any other person having an interest in the lands, without an acknowledgment in writing, signed by such person, or by some former owner from whom the interest is derived. If this is Tenant in tail to be literally understood, the acknowledgment of a tenant in tail would not bind a remainderman in tail, because such remainderman in tail does not derive his interest under the previous tenant in tail. And so likewise, if this language is to be construed without reference to the facts of the case, an acknowledgment by a tenant in fee under a will would not bind a person who became entitled to the fee under an executory devise; and an acknowledgment not made by the person from whom the arrears are sought to be recovered, but by a former owner from whom the interest in the land is derived, and whose estate had been cut down to an estate for life before he made the acknowledgment, would probably not be within the meaning of Lord Westbury's observations. A reasonable interpretation of those observations would be that the acknowledgment must be by the person sought to be charged, or by some former owner, from whom the interest is derived, or by some person who at the time of signing the acknowledgment represented the estate under the instrument which created the limitations in remainder (e). But an acknowledgment by a tenant for life cannot revive, against a remainderman, a demand already barred (f). In the case of Roddam v. Morley (g), Wood, V.-C., -bond debts; (d) 1 De G., J. & S. 122. (e) Re Fitzmaurices, Minors, supra. (f) Gregson v. Hindley, 10 Jur. 383; Fordham v. Wallis, 10 Hare, 217; Smith v. Smith, supra. (g) 2 K. & J. 336. ; -simple contract debts. said a bond debt is not a debt "charged on or payable out of land," within the section 40 of 3 & 4 Will. 4, c. 27, and that even if it were, he did not think that the person liable to pay under that section would be the tenant for life of the obligor's real estate, for the purpose of holding a payment by him to have the effect of keeping the debt alive as a charge against the estate. But it was afterwards held that an acknowledgment by a devisee for life of real estate under the will of the obligor is an acknowledgment by a person liable by virtue of the bond within the meaning of the section 5 of the 3 & 4 Will. 4, c. 42, and sets free the remedy not only as to himself but generally; and therefore an acknowledgment by such devisee by payment of interest on the bond preserves, against the remainderman, the right to the principal (h). In Coope v. Cresswell (i), Lord Chelmsford, C., seems to have doubted the case Roddam v. Morley. He said he could not concur in the reasoning which led to the ultimate decisions in that case, and that it was unnecessary for him to consider whether the parties, tenant for life and remainderman, are so united in interest, that payment by the one might be regarded as an acknowledgment by the other. Acknowledgments operate under the 21 Jac. 1, c. 16, and the 9 Geo. 4, c. 14, only as amounting to a fresh promise to pay, and as constituting a new cause of action (k), and therefore must be made by the original party or his agent (1). Consequently, in the case of a simple contract debt, a promise by a tenant for life would not bind those in remainder, nor would the pro (h) Roddam v. Morley, 1 De G. & J. 1, reversing the decision of Wood, V.-C., Š. C. 2 K. & J. 345. (i) L. R., 2 Eq. C., C. A. 112, 126. (k) Putnam v. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217; Roddam v. Morley, 1 De G. & J. 1; Mordie v. Barnister, 4 Drew. 432, 439; Briggs v. Wilson, 5 De G., M. & G. 12; Godwin v. Culley, 4 Ex., N. S. 373. (1) 2 K. & J. 341. mise of an executor bind the heir or devisee (m). But the payment of interest on a judgment by the executor of the conusor will keep it alive against his heir (n). lands. The acknowledgment by payment of interest by a Doweress of doweress of gavelkind lands, on a mortgage thereof gavelkind made by her husband, has been held to bind the two daughters of one of the co-heirs in gavelkind, as their agent (o). liable in two characters. The person making the acknowledgment may sustain, By one person and be liable in, at one and the same time, and either alone or jointly with others, two perfectly distinct characters, and each with rights and liabilities in law wholly different. He may be liable in his individual character, or personally, and also in a representative character (p), or in a double representative character (q), and the acknowledgment may bind him in only one of such characters or in both of them (r). The case is then that of two persons, and therefore to distinguish them is necessary, and the question, in truth, is, not what is the extent or the effect of the acknowledgment, but by whom it is made (s), and the courts look to the character in which the acknowledgment was made (t). It may be remarked that in those cases where the acknowledgment was given by one of several persons interested in the property, and the acknowledgment by one was held to bind the others, not only did the person making it fill several characters wholly different, but the estate was one and the same (u); but that in those (m) 2 K. & J. 341; Putnam v. Bates, Fordham v. Wallis, supra; Briggs v. Wilson, 5 De G., M. & G. 12. (n) See Kirkwood v. Lloyd, 11 Ir. Eq. R. 561; Murray v. Clarke, 4 Ir. C. L. R. 610. (0) Ames v. Mannering, 27 Beav. 583. (p) Putnam v. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217. (4) Coope v. Cresswell, L. R., 2 Eq. C., C. A. 112; Fordham v. (r) Fordham v. Wallis, Put- (8) Fordham v. Wallis, 10 Hare, 217. (t) Atkins v. Tredgold, 2 B. & C. 23; Way v. Bassett, 5 Hare, 55; Fordham v. Wallis, supra; Coope v. Cresswell, L. R., 2 Eq. C., C. A. 112. (u) Roddam v. Morley, 2 K. & J. 336; 1 De G. & J. 1. Constructively. By specialty debtor when beyond seas. cases where the acknowledgment was given by one of several persons interested in the property, and the acknowledgment was held not to bind the others, there were several distinct estates or shares of estates (x). An acknowledgment by payment may be made constructively by a person; as where one and the same person is at one and the same time liable to pay, and also entitled to receive the money, and will preserve the right as well as if there had been two distinct persons (y). An acknowledgment by a specialty debtor when beyond the seas, that is, out of England, Ireland, Scotland, and the Channel Islands, will preserve the right for twenty years after his return (z), and in the case of two or more joint debtors, although judgment may have been obtained against the other or others (a). At common law. To creditor or his agent. SECTION III. To whom Acknowledgments are to be made. An acknowledgment, before Lord Tenterden's Act(b), to prevent the operation of the Statute of Limitations (e), made to a stranger was sufficient (d). This was by the common law (e). The latter statute contains no express provision as to acknowledgments. Some of the modern Statutes of Limitation are silent as to the person to whom an acknowledgment is to be made. Lord Tenterden's Act (f) is one. This act (x)_ Putnam v. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217; Dickenson v. Teasdale, 1 De G., J. & S. 52; Coope v. Cresswell, L. R., 2 Eq. C., C. A. 112. (y) Vide ante, Sect. I. of this Chap., p. 588. 7. (z) 3 & 4 Will. 4, c. 42. ss. 5, (a) 19 & 20 Vict. c. 97, s. 11. (c) 21 Jac. 1, c. 16. (d) Mountstephen v. Brooke, 3 B. & Ald. 141; Peters v. Brown, 4 Esp. 46; Halliday v. Ward, 3 Camp. 32; Eicke v. Nokes, 1 Moo. & Rob. 359. See also Clark v. Hougham, 2 B. & C. 149, 154, 157. (e) 4 Drew. 439. |