By owners of with others, to a common charge, what is the operation of such a payment after twenty years; and in Harty v. Davis (z), in the case of a judgment, and Toft v. Stephenson (a), in the case of a lien for unpaid purchase-money, the court held, as between the person paying and the person paid, that an acknowledgment made more than twenty years after a present right accrued, but within that time before the commencement of the action or suit, had the effect of reviving the charge; but in the former of these two cases, Ball, J., said, that the court decided the case only with respect to the effect of the acknowledgment on the rights of the person giving it, and that the decision was not intended to determine what would be the effect as against third parties. Whether where lands are subject to a common lands subject, charge, and a person entitled to part of the land pays interest after the lapse of twenty years, having paid no interest in the interval, will revive the charge against either himself, or the owners of the other part of the lands, on the principle, that where two persons are jointly liable on a simple contract, payment of interest by one, after the expiration of six years, will be evidence of a new promise by both (b), has been doubted (c). -of lands subject to trusts for indemnity. Where, by the operation of the statute, lands, subject to a charge but sold with an indemnity upon lands not so subject against it, have ceased to be altogether liable to the charge, a beneficial owner of the indemnity lands cannot revive a demand against those other lands from which they were so discharged. That would be to make the conveyance of the indemnity lands a means of onerating and not exonerating those other lands (d). (z) 13 Ir. L. R. 23. (a) 1 De G., M. & G. 28; 5 Ib. 735. (b) See the cases collected in Goddard v. Ingram, 3 Q. B. 839. (c) Homan v. Andrews, 1 Ir. C. R. 106. (d) See Homan v. Andrews, supra. Where there is no common charge nor liability, and the person making an acknowledgment can only be considered as the agent of the person whose estate is liable to the charge, the acknowledgment would not revive the charge against the lands from which they were discharged by the operation of the statute (e). If, however, the interpretation of the sections 28 and 40 before noticed (f) be correct, the effect of an acknowledgment of the title of a mortgagor or of his right of redemption made at any time, even after the expiration of twenty years next after the time at which the mortgagee obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, but within twenty years before the commencement of the suit for redemption, is to revive or restore such title or right, and the effect of an acknowledgment of a right to a charge on land made at any time even after the expiration of twenty years next after a present right to receive the same has accrued, but within twenty years next before the commencement of proceedings to recover the charge, is to revive or restore the right to the charge. The effect of an acknowledgment of a right to a charge on a rent, or an advowson, or to a legacy not charged on land (g), or of a right to the personal estate, or any share of the personal estate, of an intestate (h), not being chattels real, or to arrears of rent or of interest of money charged on, or payable out of land or rent, or for any legacy, or for any damages in respect of such arrears (i), or to claims by specialty (k), whenever made, will revive the right; for the right to these matters respectively is not, as in the case of land (e) See Homan v. Andrews, 1 Ir. C. R. 106. (f) Sect. VI. of this Chapter. (g) Sect. 40. (h) 23 & 24 Vict. c. 38, s. 13. (i) 3 & 4 Will. 4, c. 27, s. 42. (k) 3 & 4 Will. 4, c. 42. ante, p. 581. Vide itself and charges thereon, and rent, extinguished after the determination of the periods of limitation, applied to such several matters, but the remedies for them are merely taken away (1). The court, or the jury. When the court. SECTION VIII. By whom the Question, whether a written Instrument be or be not an Acknowledgment, is to be determined. A writing, or several writings together, relied on as an acknowledgment within the Statutes of Limitation, may be such, or may have been made under such circumstances, as to involve the question whether such writing, or such several writings together, be or be not such an acknowledgment. The further question, whether the court or the jury is or are to determine the former one, also then arises. In general the construction of a written instrument is, in the first place, to be determined by the judge (m). Where the question arises on the construction of one document only, without reference to any extrinsic evidence to explain it, or where a legal right is to be determined from the construction of a written document, which either is unambiguous, or of which the ambiguity arises only from the words themselves, that is a question to be decided by the judge (n), and it is (1) See Harty v. Davis, 13 Ir. L. R. 23. (m) Morrell v. Frith, 3 M. & W. 402; 5 Ib. 542; Routledge v. Ramsay, 8 Ad. & E. 221; Baildon v. Walton, 1 Ex. 617; Ley v. Peter, 3 Ib. 111; 5 Ib. 153. See also Foster v. Mentor Insurance Co., 3 Ell. & B. 48; Furness v. Meek, 27 L. J., Ex. 34; Smith v. Thorne, 18 Q. B. 134; Smith v. Thompson, 8 C. B. 44; Doe d. Curzon v. Edmonds, 6 M. & W. 295; Hutchinson v. Bowker, 5 M. & W. 535. (n) Morrell v. Frith, 3 M. & W. 402; Smith v. Thorne, 18 Q. B. 134; Smith v. Thompson,8 C.B.44. not competent to him to ask the assistance of the jury in construing it (o). The safest course is to adhere to this rule (p). In Morrell v. Frith (q), Parke, B., said, that in the case of an obscure and doubtful document, he had always acted on, but had always disapproved of, Lloyd v. Maund (r), and that the course he had taken was to express his own opinion, and then to take that of the jury, in order that, if they differed with him, the opinion of the court might be fairly taken on the question whether the document should be left to the jury, and that he thought that case is not law. In Bucket v. Church (s), the same judge said there was little difficulty whether the effect of the writing, as an acknowledgment, was a question for the judge or the jury, and that he had always expressed his own opinion and taken that of the jury, and if they differed the court would decide (t). some The law regulating questions of this description was subsequently stated by the same judge in the following terms:-"The construction of all written documents belongs to the court alone, whose duty it is to construe all such instruments, as soon as the true meaning of the words in which they are couched, and the surrounding circumstances, if any, have been ascertained as facts by the jury and it is the duty of the jury to take the construction from the court, either absolutely, if there be no words to be construed as words of art, or phrases used in commerce, and no surrounding circumstances to be ascertained; or conditionally, when those words or circumstances are necessarily referred to them. Unless this were so, there would be no certainty in the (0) Bolckow v. Seymour, 17 C. B., N. S. 107, 116. (p) 3 M. & W. 402. (q) 3 M. & W. 402, 406. (r) 2 T. R. 760. (8) 9 Car. & P. 209. (t) See also Doe d. Curzon v. Edmonds, 6 M. & W. 295. When the jury. Intention of parties. law; for a misconstruction by the court is the proper subject, by means of a bill of exceptions, of redress in a court of error; but a misconstruction by the jury cannot be set right at all effectually” (x). In accordance with these principles, the question whether a writing has or has not the effect of an acknowledgment of title within the section 14 of the 3 & 4 Will. 4, c. 27, has been determined to be, not for a jury but for the judge (y). Whether a writing has or has not the effect of an acknowledgment of title or right within the section 28, or of right within the sections 40 and 42 respectively of the same statute, would be to be determined in the same way. The effect of a written document, however, is sometimes left to a jury. For instance, where the document requires parol evidence to qualify or to explain it, as in the ordinary case of mercantile contracts, in which peculiar terms and abbreviations are employed; or where the meaning of the words themselves is in question, being words that are used in a particular and technical sense, it is as if the documents were in a foreign language, and the truth or propriety of the translation were in question (z). And although the construction of a doubtful instrument be not for the determination of a jury, yet the facts by which it may be explained are (a). The intention of the parties is a question for the jury, and in some cases, libel for instance, the meaning of the document is part of that intention, and therefore must be submitted to the jury (b). (x) Neilson v. Harford, 8 M. & W. 806. (y) Doe d. Curzon v. Edmonds, 6 M. & W. 291; Ley v. Peters, 3 Ex. 101, 111. (z) 3 M. & W. 406; Hutchison v. Bowker, 5 M. & W. 542; Moore v. Garwood, 4 Ex. 681; 406. (b) 3 M. & W. 402. |