Receipt of rents by equitable mortgagee in possession. Unnecessary under sect. 14 of c. 27 in cases within sect. 15. Of equity of redemption; -to an agent; without showing some special reason the payment will be conclusive (u). The receipt of the rents of an estate subject to an equitable mortgage by the mortgagee entering into possession, ought, said Shadwell, V.-C., primâ facie to be taken as a payment, either of principal or interest of his debt as the case may be (x). If so, the effect would be to preserve, as a simple contract debt, the money due on the mortgage, ultra the value of the estate, as a claim against the general assets of the mortgagor (y). No acknowledgment is necessary under the section 14 of the 3 & 4 Will. 4, c. 27, in those cases which are within the section 15, as in cases between a mortgagor and a mortgagee (z). In the case of an acknowledgment under the section 28 of the 3 & 4 Will. 4, c. 27, the mere admission of holding under a mortgage title is not sufficient. What is required is, not an admission that the holding is under such a title, but an admission that some person has a right to redeem (a). Such an acknowledgment, when given to an agent, need not contain the name of the principal, and the person giving the acknowledgment need not know who is the principal. If the acknowledgment can be understood as acknowledging a title to redeem in the person or persons on whose behalf it is given, that will be sufficient (b). v. Biggs, 2 Bing. N. C. 272; (u) See Cooper v. Blandy, 1 (x) Brocklehurst v. Jessop, 7 Sim. 438. (y) S. C. On this case, see Fordham v. Wallis, 10 Hare, 217. (z) Doe d. Jones v. Williams, 5 Ad. & E. 291. (a) Thompson v. Bowyer, 9 Jur., N. S. 863, 11 W. R. 975, 9 L. T. R. 12, S. C. (b) Stansfield v. Hobson, 16 Beav. 236. On appeal, 3 De G., M. & G. 620. A letter by a mortgagee to the agent of the claimant by letter; of the equity of redemption, referring to the locality of the mortgaged property, expressing his willingness to settle the business, and recognizing the claimant as the heiress of the property, was held a sufficient acknowledgment of her title within the sect. 28 (c). In Stansfield v. Hobson (d), Sir J. Romilly, M. R., said, he could not distinguish the case before him and Trulock v. Robey, but that it is very difficult to say whether the latter case is quite consistent with all the other cases. A mortgagee, by letter addressed to the solicitor of the mortgagor, said, "I do not see the use of meeting unless some one is ready with the money to pay me off." This was held to amount to a qualified admission by the mortgagee that if any person was ready with the money to pay him off such person would have the right to do so and that he, the mortgagee, would be bound to receive the money. In other words that he held a redeemable estate, that is, by way of mortgage, and therefore a sufficient acknowledgment to the agent of the mortgagor (e). accounts. A mortgagee keeping an account of rents, but not by keeping rendering it to the mortgagor or to any person claiming the lands through him, and also otherwise treating himself as a mortgagee during the possession for twenty years, would not be such an acknowledgment of the right or title of the mortgagor or of such person as is contemplated by the sect. 28 of 3 & 4 Will. 4, c. 27 (ƒ). The acknowledgment in writing, contemplated by Bankrupt's the sect. 40 of the 3 & 4 Will. 4, c. 27, has been said to be such a voucher in writing as can be given by one party and received by another for the purpose of evi (c) Trulock v. Robey, 12 Sim. 402. (d) 16 Beav. 236, 238. Beav. 236; S. C. on appeal, 3 De G. (f) See Baker v. Wetton, 14 balance sheet, master's re port, insuffi cient under sect. 40. Insolvent's schedule sufficient under that sect. Need not amount to a new promise. dencing, between them, the existence of the right (g), and therefore the balance sheet of a bankrupt (h), or a master's report in a suit in Chancery (i), is not a sufficient acknowledgment within that section. In Barrett v. Birmingham (k), however, Sir M. O'Loghlen, M. R., said, he was not satisfied that Hill v. Stawell was rightly decided, and that it seems to have been decided merely on the question, whether the report was a sufficient acknowledgment in writing within the meaning of the act, without reference to the question whether the report did not confer a new right to receive the money secured by the judgment as fully as a judgment of revivor would have done; the debtor being a party to the report and consequently bound by it. In Millington v. Thompson (1), also Blackburne, C., said it is impossible, with reference to the judicial and other opinions that have been given on this provision of the statute, and to its plain and obvious policy, to hold that the document signed must be such as to be capable of manual delivery. An acknowledgment within this provision means any document signed by the debtor expressive of his intention to admit the debt and to have it produced and used for that purpose. The schedule of an insolvent debtor, containing the names of his creditors with the amount of their debts, and filed in the Insolvent Debtors' Court, is a sufficient acknowledgment within the sect. 40 of the 3 & 4 Will. 4, c. 27 (m). An acknowledgment under the sects. 40 and 42 of the 3 & 4 Will. 4, c. 27, means not such a one as would amount to a promise to pay and so make a new (g) Hill v. Stawell, 2 Jebb & S. 389. (h) Pott v. Clegg, 16 M. & W. 321; In re Clendinning, 9 Ir. C. R. 284. (i) Hill v. Stawell, 2 Jebb & S. 389. (k) Flan. & K. 556, 4 Ir. Eq. Rep. 537, S. C. (1) 3 Ir. C. R. 236, 238. (m) Barrett v. Birmingham, Flan. & K. 556; 4 Ir. E. R. 537; But see ante, p. 660. cause of action, but any acknowledgment in the mode prescribed (n). due. An acknowledgment may be that a sum of money of a sum being was advanced, and yet not be an admission that it is still due; but if followed by other expressions, in which the party, though not prepared to admit by whose default the money has not been paid, yet admits that it is still due, that is a sufficient acknowledgment (o). ment. A judgment revived on a sci. fa. is neither a payment Revived judgnor an acknowledgment in writing signed by the person by whom the money is payable, or his agent, within the sect. 40 of 3 & 4 Will. 4, c. 27 (p). collateral se Whether the payment on a collateral security, not Payment on a given contemporaneously with, but after, the primary curity. security, will take, as to the latter security, a case out of that section, has been doubted (q). liable to the An acknowledgment under the sect. 42 of that statute Under sect. 42 must be given with the view of making, or of showing, must make, or show, the perthe person making it liable to the demand of the person son making it, to whom it is given (r); and, so far, is within the prin- person to whom ciple of the cases of Whippy v. Hillary (s) and Rout- given. ledge v. Ramsay (t), although they depended upon a different statute (u), expressed in language differing from that of the 3 & 4 Will. 4, c. 27. The principle of Whippy v. Hillary and Routledge v. Ramsay seems to be that the person making the acknowledgment must recognize his own liability, and not point to the liability as attaching to others, or to be discharged in another mode than by himself (x); and in (n) See Moodie v. Bannister, 4 Drew. 432; Fursdon v. Clogg, 10 M. & W. 572. (0) Blair v. Nugent, 3 J. & L. 658, 676. (p) Farran v. Beresford, 10 Cl. & F. 319. (q) See O'Hara v. Creagh, Longf. & T. 65. (r) Holland v. Clark, 1 You. & C. C. C. 151. (s) 3 B. & Ad. 399. (x) Phillips v. Phillips, 3 Effect of written acknow ledgment under 21 Jac. 1, c. 16, and 9 Geo. 4, c. 14. Under 3 & 4 -and c. 27, sects. 40, 42. neither of those two cases was there any such recognition simply, and therefore no acknowledgment; and this principle was equally applicable, and was applied, in the case of Holland v. Clark. In Whippy v. Hillary, the person not only did not make such recognition but referred to other persons to pay, and in Routledge v. Ramsay, although admitting the claim so far as not denying it, yet pointed out to the claimant a source from which he might obtain payment (y). An acknowledgment in writing operates, under the 21 Jac. 1, c. 16, and the 9 Geo. 4, c. 14, in cases of simple contract debts, as a fresh promise to pay and as constituting a new cause of action (z), and ought to have the effect of making the person giving it personally liable (a); and but for the sect. 5 of the c. 42, and the same remark applies to sects. 40 and 42 of the c. 27, as respects acknowledgments under them, an acknowledgment of a specialty debt since the former chapter, and of the matters embraced by these two sections of the latter chapter, must have contained, either expressly or impliedly, a promise to pay, as in a case of simple contract (b). But under the 3 & 4 Will. 4, c. 42, the action in which the acknowledgment is to be operative must always be founded and maintained on the original obligation and on that only (c), and the acknowledgment under this statute does not mean one which would amount to a promise to pay, and so make a new cause of action, but any acknowledgment (d). So also under the 3 & 4 Will. 4, c. 27, ss. 40, 42 (e), and consistently (y) See also Carroll v. Darcy, 10 Ir. Eq. R. 321. (z) See Putnam v. Bates, 3 Russ. 188, and other similar cases, (a) Hyde v. Johnson, 2 Bing. N. C. 776. (b) Moodie v. Bannister, su pra. (c) Roddam v. Morley, 1 De G., & J. 1. (d) Moodie v, Bannister, 4 Drew. 432. (e) Carroll v. Darcy, 10 Ir. Eq. R. 321. |