Tenant for life or remainder

man.

would be equally available as if made to such person when free from disability. That the acknowledgment made to a person who when his right accrued was not, but who subsequently, and before the period of limitation expires, is under disability, would be available, seems clear; for if not available the period having commenced the right would be extinguished, or the remedy barred, when the period had expired, and the acknowledgment would be rendered nugatory. Hence it would seem to follow, that an acknowledgment made to a person under disability when the right accrues will be as available as if made to him when not under disability. When made just before the disability ceases, he would be entitled to assert his right within the period of limitation computed from the making of such acknowledgment, and not merely for ten years from the the time when the disability ceases, under the section 16 (g).

A tenant for life and a tenant in remainder are privies in estate, and, as in the case of a release (h), so, it is apprehended, in the case of an acknowledgment, the acknowledgment made to either is available for the benefit of the other.

Agency at common law.

Its efficacy.

SECTION IV.

Agents by and to whom Acknowledgments are to be made.

At common law, the general rule is, who acts by another acts by himself. Qui facit per alium facit per se (i). The act of such other person, however, is not, as

(9) Vide Chap. VI. Sect. I. of this Book.

(h) Co. Litt. 267 b.

(i) 2 Mod. 309; 10 Ib. 310; 11 Ib. 88; 2 Ld. Raym. 792; Coare v. Giblett, 4 East, 85; Homan v.

Andrews, 1 Ir. Eq. Rep., N. S. 106; Rew v. Pettet, 1 Ad. & E. 196; Jones v. Hughes, 5 Ex. 104; Forster v. Thompson, 2 Con. & L. 568; Norris v. Cooke, 7 Ir. C. L. R. 37; 6 H. L. C. 296.

that of the person himself is, equally efficacious or conclusive as to the latter. The admission of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admission, and is not permitted to contradict it. But it is impossible to say a man is precluded from questioning or contradicting any thing any person has asserted as to him, as to his conduct or his agreement, merely because that person has been his agent (k).

The legislature, however, sometimes requires acts to be done by persons themselves, so that such acts cannot be done by agents, as acknowledgments (1); and sometimes gives equal efficacy to the acts of persons and to the acts of their agents; but in all such cases uses express words for the purpose (m).

An acknowledgment of a simple contract debt may now be made both by and to an agent (n). The latter act, however, does not give validity to acknowledgments made before it was passed (o), but only to those made afterwards, although the debt acknowledged arose before the passing (p). A specialty debt may be also so acknowledged (q).

An acknowledgment by payment under the 3 & 4 Will. 4, c. 42, and under the 1 Vict. c. 28, may be made by an agent; for such an acknowledgment, as well as one by writing under the 3 & 4 Will. 4, c. 27, may

(k) Per Sir W. Grant, M. R., Fairlie v. Hastings, 10 Ves. 123.

(1) 9 Geo. 4, c. 14; Hyde v. Johnson, 2 Bing. N. C. 776; Archer v. Leonard, 15 Ir. Ch. Rep. 267; Leland v. Murphy, 16 Ib. 500; Bristow v. Miller, 11 Ir. L. R. 461; Clark v. Alexander, 8 Scott, N. R. 147; 16 & 17 Vict. c. 113, s. 24; In re Glendinning, 9 Ir. Ch. Rep. 284; 3 & 4 Will. 4, c. 27, ss. 14, 28.

(m) 29 Car. 2, c. 3, ss. 3, 4, 5, 17; 3 & 4 Will. 4, c. 27, ss. 40, 42; c. 42, s. 5: Hyde v. Johnson, Homan v. Andrews, 1 Ir. Ch.

Rep. 106; 19 & 20 Vict. c. 97,
s. 13; Archer v. Leonard, Le-
land v. Murphy, supra.

(n) 9 Geo. 4, c. 14; 19 & 20
Vict. c. 97, s. 13. Vide Sects. I.
and II. of this Chap.

(0) Archer v. Leonard, 15 Ir. Ch. Rep. 267.

(p) Leland v. Murphy, 16 Ir. Ch. Rep. 500.

(q) 3 & 4 Will. 4, c. 42. See Forsyth v. Bristowe, 8 Ex. 716; Roddam v. Morley, 1 De G. & J. 1; Coope v. Cresswell, L. R., 2 Eq. Ca., C. A. 112.

What may and what may not be done by agent.

Mode of appointing agents.

be made by an agent (r); and both kinds of acknowledgment under the former statute are intended to be placed on the same footing (s), and these statutes are in pari materiâ (t).

An acknowledgment of title to land and rent, of the title of a mortgagor of land or rent, or of his right of redemption, may be made to but not by an agent (t), whilst an acknowledgment of a right of redemption (u), of a right to money charged on land or rent, to arrears of rent and of interest for money so charged, and for legacies (x), of the title of a mortgagee (y), and to the : personal estate, or any share of the personal estate, of persons dying intestate (z), may be made both by and to an agent, and under sect. 40 of the former statute as well by payment as in writing (a). But in whatever mode made, if made by a person expressly or impliedly authorized to make it, it will be equivalent to an acknowledgment by the party liable (b).

None of the Statutes of Limitation specify the mode in which an agent for making an acknowledgment under any of their provisions is to be appointed; and, therefore, the appointment of such agents may be in any of the modes recognized by law.

No one can become the agent of another person except by the will of that other person. His will may be manifested in writing, or orally, or simply by placing another in a situation in which according to ordinary rules of law, or perhaps it would be more correct to say, according to the ordinary usages of mankind, that other

is understood to represent and act for the person who has so placed him, but in every case it is only by the will of the employer that an agency can be created. The appointment of an agent thereforc is either express or implied. When express may be either in writing or by parol. When implied may be either by the employment or by the adoption and ratification of the acts of another person (c).

quired need

The appointment of an agent, unless required by law, Unless reas in some of the provisions of the Statute of Frauds (d), que e need not be, on appointments by natural persons, in writing. writing (e), although the act of the agent be required to be in writing (f).

An agent for a corporation aggregate, however, in matters which affect any interest of the corporation (g), must, in general, be appointed, either by record (h), or by writing under the common seal of the corporation (i); for the general rule, subject to certain exceptions which confirm it, is, that a corporation, howsoever created, and whatever may be the objects of its creation, cannot express its will, or do any act, otherwise than by writing under the common seal of the body corporate, either in relation to real or to personal property (k). And the rule is one by no means of a merely technical nature, or

(c) Pole v. Leask, 28 Beav. 562, affirmed in D. P., 9 Jur., N. S. 829.

(d) 29 Car. 2, c. 3, ss. 1, 3.

(e) Clinan v. Cooke, 1 Sch. & Lef. 22; Coles v. Trecothick, 9 Ves. 250; Mortlock v. Buller, 10 Ves. 311; Deverell v. Lord Bolton, 18 Ib. 509.

(f) 7 Ir. C. L. R. 41.

(g) See Smith v. The Birmingham Gas Co., 1 Ad. & E. 526,530.

(h) The Mayor of Thetford's case, 1 Salk. 192; 3 Ib. 103; 2 Lord Raym. 848; Holt, 171, recognized in The Fishmongers' Co. v. Robertson, 5 M. & G. 131,

L.

(i) Plowd. 91; Horn v. Joy, 1 Ventr. 47; 16 East, 9; on Horn v. Joy, see 1 Ad. & E. 530; Bowen v. Morris, 2 Taunt. 374; Arnold v. Mayor of Poole, 5 Scott, N. R. 741; 2 Dowl., N. S. 574, S. C.; The Fishmongers' Co. v. Robertson, supra.

(k) Taylor v. Dulwich College, 1 P. W. 656; Winne v. Bampton, 3 Atk. 473; Wilmot v. Corporation of Coventry, 1 Y. & C., Ex. 518; East London Waterworks Co. v. Bailey, 4 Bing. 283; Church v. The Imperial G. L. & C. Co., 6 Ad. & E. 846; The Mayor of Ludlow v. Charlton, 6 M. & W. 815.

SS

How to be ap-
pointed by
corporations

where their in-
affected.

terest may be

Where act done is for their benefit.

which it would at all be safe to relax, except in cases warranted by the principles of the exceptions which have been admitted. The seal is required as authenticating the concurrence of the whole body corporate, and is the only authentic evidence of what the corporation has done, or agreed to do, and not a mere relic of ignorant times. Either a seal or some substitute for a seal, which by law shall be taken as conclusively evidencing the sense of the whole body corporate, is a necessity inherent in the very nature of a corporation (z).

The decisions establishing the exceptions to this rule furnish the principle on which they have been established, and are instances illustrating its application, but are not to be taken as so prescribing, in terms, the exact limit, that a merely circumstantial difference is to exclude from the exception. This principle appears to be convenience amounting almost to necessity. Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed (a).

And although a person acting as agent for a corporation may not have been appointed either by record or by writing under the common seal, yet the corporation, by the adoption of his acts, may be bound (b). Unless

(z) The Mayor of Ludlow v. Charlton, supra; Cope v. The Thames Haven Dock and Railw. Co., 18 L. J., N. S., Ex. 344; Arnold v. The Mayor of Poole, 5 Scott, N. R. 741, 2 Dowl., N. S. 574, S. C.; Diggle v. London and Blackwall Railw. Co., 5 Ex. 442; London Dock Co. v. Sinnott, 8 E. & B. 347.

(a) Church v. The Imperial, G. L. & C. Co., 6 Ad. & E. 846; Mayor of Ludlow v. Charlton, supra; Hall v. Mayor of Swansea, 5 Q. B. 526; Diggle v. London and Blackwall Railw. Co., 5 Ex.

442; Australian Royal M. S. N. Co. v. Marzetti, 11 Ex. 228.

(b) See The Mayor of Thetford's case, supra; Bowen v. Morris, 2 Taunt. 374; Wood v. Tate, 2 B. & P., N. R. 247; Mayor of Stafford v. Till, 4 Bing. 75; Ecclesiastical Commissioners v. Merral, L. R., 4 Ex. 162, 38 L. J., Ex. 93, S. C.; London and Birmingham Raile. Co. v. Winter, Craig & P. 57; Arnold v. The Mayor of Poole, supra; The Fishmongers' Co. v. Robertson, 5 Man. & G. 131. On this case see The Copper Miners Co. v. Fox, 16 Q. B. 229, 237.