refers to only the statute of James, and requires the acknowledgment to be in writing. It does not require in express terms that the acknowledgment should be made to the party making the claim; the intention was to leave that point as it stood upon the decisions under the statute of James; and it was unnecessary to introduce words importing that the promise to pay must be made to the person making the claim (g). But inasmuch as acknowledgments operate under the 21 Jac. 1, c. 16, and the 9 Geo. 4, c. 14, only as and when amounting to a fresh promise to pay, and as constituting a new cause of action (h), the acknowledgment must be made either to the creditor himself or to his agent, and not to a mere stranger (i); and when it is by an account stated, the account must be with the creditor or with his agent (j). An acknowledgment made to an agent of the creditor is made to the creditor himself. In equity it would be considered, that if an application were made by the solicitor of the creditor, and the debtor wrote to say that he would pay the debt, that would be the same as if he had made the promise himself (k). Poole. In Smith v. Poole (1), the acknowledgment relied Smith v. upon and held by the court to be sufficient was contained in an inventory and account made and exhibited by a sole executor upon oath in a suit instituted against him in the ecclesiastical court, but the plaintiff appears not to have been a party to that suit. The point, however, that the acknowledgment ought to have (g) Moodie v. Bannister, 4 Drew. 432, 444. (h) Portman v. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217; Briggs v. Wilson, 5 De G., M. & G. 12; Roddam v. Morley, 1 De G. & J. 1; Moodie v. Bannister, 4 Drew. 432, 442; Coope v. Cresswell, L. R., 2 Eq. C. 106, 120. (i) Godwin v. Culley, 4 Ex., N. S. 378; Fuller v. Redman, 26 (j) Per Littledale, J., 1 Ad. & (k) Per Sir J. Romilly, M. R., When to a third person. When party need not be named. How shown. To one of been made to the creditor or his agent was not raised. The case is at variance with the decisions of the courts of law, and cannot be relied on with reference to this question. The Common Law Amendment Acts (m), the Common Law Procedure Amendment Act, Ireland, 1853(n), and the 1 Vict. c. 28, declaring the effect of the 3 & 4 Will. 4, c. 27, as between mortgagors and mortgagees, are also instances of not expressing to whom the acknowledgments under them are to be given; and although 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, and therefore, as just shown, must be given to the creditor himself, or to his agent, and not to a mere stranger, yet under the 3 & 4 Will. 4, c. 42, 3 & 4 Vict. c. 105, 16 & 17 Vict. c. 113, the acknowledgment is not intended to operate on any such footing, nor could it possibly so operate, because the action in which the acknowledgment is to be operative must always be founded and maintained on the original obligation, and on that only (o); and therefore the acknowledgment may be made to a third person (p). Lord Tenterden's Act, however, does not require the name of the party to whom an acknowledgment in writing is made to be inserted in it. If the acknowledgment be in a letter, the address will be evidence; and if the letter were in an envelope, evidence might be given to connect the two: and so evidence may be given showing for or to whom a written acknowledgment is made, by delivery or otherwise (9). Since the 3 & 4 Will. 4, c. 27, an acknowledgment (m) 3 & 4 Will. 4, c. 42; 3 & 4 (n) 16 & 17 Vict. c. 113. (p) Forsyth v. Bristowe, 8 Ex. 716; Moodie v. Bannister, 4 Drew. 432. See also Howcutt v. Bonsor, 3 Ex. 491. (g) Hartley v. Wharton, 11 Ad. & E. 934. not available made to one or more of several coparceners, joint te- several coparnants, or tenants in common, unless in the character ceners, &c., or capacity of agent or agents for any other or others for the others. of them, will not be available for such other or others (r). third persons. An acknowledgment under the section 14 of the 3 & When not to 4 Will. 4, c. 27, is to be given to the person entitled to the land or the rent; under the section 28 of the same statute, to the mortgagor, or to the person claiming through him his estate, or to the agent of such mortgagor or person; and under the sections 40 and 42 of the same statute, to the person entitled to the matters to which those sections are applied, or to his agent, and in none of such cases will an acknowledgment given to a mere stranger, and who cannot be considered either expressly or by implication as such agent (s), be available under those provisions for any person claiming the benefit of them. A defendant in a suit, in answer to questions put by the plaintiff, admitting, in effect, a yearly tenancy, and the legal estate to be in the plaintiff, is an acknowledgment given to the person entitled, within the sect. 14(t). Why, said Wigram, V.-C. (u), the mortgagee should not be allowed to make an admission in writing, signed by himself, of his mortgage title to a third person, of which the mortgagor may have the benefit, I do not know; but the statute requires that the admission should be made to the mortgagor himself. The recognition by the mortgagee of the right of redemption in a transfer of the mortgage, the mortgagor not being a party to the transfer, is not available for, and the assignee is not a person claiming the estate (r) Sect. 12. (8) See Grenfell v. Girdlestone, 2 You. & C., Ex. C. 662, 676; Forsyth v. Bristowe, 8 Ex. 716; Moodie v. Bannister, 4 Drew. 432. (t) Goode v. Job, 1 E. & E. 6, 28 L. J., Q. B. 1, 5 Jur., N. S. 145, S. C. (u) Batchelor v. Middleton, 6 Hare, 75. Baker v. To husband wife's death, of a legacy. of, the mortgagor (v). So letters written by a mortgagee to his own solicitor cannot affect his title acquired by the statute (w). In Baker v. Wetton (x) was raised, but not decided, the question, whether, although a bill for redemption alleges that the mortgagee kept accounts of the rents received by him during his possession, and otherwise treated himself as a mortgagee, the bar created by the section 28 was defeated. If the accounts be in form between the mortgagee and mortgagor,—and the mere introduction of the name of the latter would be sufficient, although even that is not essential (y),-and be signed by the mortgagee, or by some person claiming through him, that would be a sufficient acknowledgment to prevent the bar. If the accounts be merely by the mortgagee, and not between him and the mortgagor, they would not be a sufficient acknowledgment within the provision just mentioned (z). An acknowledgment to a husband entitled in right before or after of his wife to a pecuniary legacy, and made during her life, would be given to the person entitled within the section 40 of the 3 & 4 Will. 4, c. 27; but made to him after her death, and before he obtains letters of administration to her, would not be given to such a person (a), for then his title is not jure mariti, but as administrator, and as administrator he has no title until he obtains administration (b), and even then the section 6 would not apply. To person An acknowledgment of the right to the personal entitled to, a estate, or to a share of the personal estate of a person (v) Lucas v. Dennison, 13 Sim. 584; Batchelor v. Middleton, supra; Stansfield v. Hobson, 16 Beav. 226; 3 De G., M. & G. 620. (w) Stansfield v. Hobson, supra. (x) 14 Sim. 426. (y) Hartley v. Wharton, 11 Ad. & E. 934. (z) See Pott v. Clegg, 16 M. & W. 321; Bristow v. Miller, 11 Ir. L. R. 461. (a) Holland v. Clark, 1 You. & C. C. C. 151. (b) Vide supra, p. 465. dying intestate, is to be made to the person entitled share of intesthereto or to his agent (c). rent, &c. tate's estate, The acknowledgment under the section 42 of the arrears of 3 & 4 Will. 4, c. 27, is to be given either to the person entitled to the arrears, or to the agent of such person. In Smith v. Smith (d), the acknowledgment was addressed to no person, was dated after the assignment of the arrears to the petitioner, but was not addressed to her, and the affidavit verifying the signature to the acknowledgment contained no statement in relation to the circumstances under which, or the person to whom, the acknowledgment was given. The court thought the acknowledgment insufficient, but found a decision of the point unnecessary. Parol testimony, however, showing to whom the acknowledgment was made, was admissible (e). arrears after but before An acknowledgment made to a husband entitled to To husband a legacy in right of his wife, whom he had survived, for such but to whom he had not, although he afterwards, ob- wife's death, tained administration, of arrears of interest in respect administration. of the legacy, is not given to the person entitled to such arrears within the section 42 of the 3 & 4 Will. 4, c. 27, and the case is not assisted by the section 6 (ƒ). An acknowledgment by payment may be made con- To a person constructively. structively to a person; as where one and the same person is at one and the same time entitled to receive and also liable to pay the money, and will preserve the right as well as if there had been two distinct persons (g). It is apprehended that an acknowledgment made To persons under the sections 14, 28, 40 and 42 of 3 & 4 Will. under disability. 4, c. 27, and section 13 of 23 & 24 Vict. c. 38, to the person to whom it is to be made under those sections respectively, when such person is under any disability, (c) 23 & 24 Vict. c. 38, s. 13. (d) 5 Ir. Ch. Rep. 88, 100, 101. (e) Hartley v. Wharton, 11 Ad. & E. 934; supra, p. 583. (f) Holland v. Clark, 1 Y. & C. C. C. 151. (g) Vide ante, Sect. I. of this Chap., p. 588. |