CH. V.

of 3 & 4 W. IV. c.

spective.

tion apply, and the cases decided on one of these sections PART III. apply to the others. It has therefore been thought convenient to discuss the provisions of the sections together. It was decided that the proviso in sect. 40 respecting Sect. 40 part payments and acknowledgments is retrospective, so that an acknowledgment made before the passing of 27 retro3 & 4 Wm. IV. c. 27, but such as to satisfy the requirements of sect. 40, enlarged the time of limitation (1). An acknowledgment under these sections must not To whom only, like an acknowledgment under the 5th section of acknowledgment 3 & 4 Wm. IV. c. 42, be made and signed by the party or must be his agent, but must also be given to the party entitled given. or his agent. These requirements have received a very liberal construction; thus, where a bill was filed to raise a sum of money to which the plaintiff and one of the defendants were entitled in equal moieties, an admission of the debt in the answer of another defendant, was held a sufficient acknowledgment in a subsequent proceeding by the executor of the first-named defendant to recover his moiety (2). Where a testator by his will directed three of his judgment-creditors, whom he named executors, to pay themselves out of a certain fund, should it be recovered and should they accept the executorship, it was held that although they did not, in fact, accept the executorship, the acknowledgment of their debt in the will was sufficient (3). On the other hand, where the plaintiff claimed as administrator to his wife, a strong opinion was expressed by Knight Bruce, V.-C., that an acknowledgment made to the husband's solicitor before administration granted was insufficient, because, when the acknowledgment was given, the husband was not a person entitled (4).

(1) Vincent v. Willington, Long & T. 456.

(2) Blair v. Nugent, 3 Jon. & Lat. 673.

(3) Millington v. Thompson, 3 Ir. Ch. R. 236. See Scott v. Synge, 27 L. R. Ir. 560.

(4) Holland v. Clark, 1 Y. & C. Ch. 151.

PART III.
CH. V.

acknowledgment

must be

given.

Where a purchaser had been let into possession of property without payment of the purchase-money and By whom died, having devised it to certain trustees who declined to act, and two others were appointed by the Court, it was held that an acknowledgment by the solicitor of the trustees so appointed was an acknowledgment by the agent of the parties liable to pay, so as to keep alive the vendor's lien on the land as against the cestuis que trustent (1). And where a testatrix devised an estate to a trustee in trust to sell and pay her debts and hold the residue for certain persons, it was held that an acknowledgment of a debt by the agent of the trustee was a sufficient acknowledgment under sect. 40 of 3 & 4 Wm. IV. c. 27, but that it did not impose upon the trustee any personal liability to pay the debt (2).

What ac

ment is

sufficient.

It was held in the case last referred to that as the Act

knowledg- only requires some acknowledgment of the right to the money claimed, the acknowledgment need not state the amount of the debt alleged to be due; an acknowledgment which refers to the debt in question is sufficient (3), and parol evidence is admissible to show that the debt referred to in the acknowledgment is the one sought to be recovered, even when the debt is not correctly described in the acknowledgment (4). It was considered in one case (5), and the opinion has been adopted by a writer on Irish judgments (6), and accepted by Lord St. Leonards in his Real Property Statutes (7), that the Legislature, in allowing under sect. 40 twenty years to a creditor from the making of any acknowledgment or

(1) Toft v. Stephenson, 7 Hare, 1; S. C. on appeal, 1 De G. M. & G. 28; 21 L. J. Ch. 129.

(2) St. John v. Boughton, 9 Sim. 219.

(3) See Jortin v. South-Eastern Railway Co., 6 De G. M. & G. 270; 24 L. J. Ch. 343.

(4) Hanan v. Power, 8 Ir. L. R. 505; Dugdale v. Vize, 5 Ir. L. R.

CH. V.

part payment, intended to point out certain modes in PART III. which a present right to receive could accrue; and in the case referred to, the authorities, which showed that a present right to receive accrues by the revivor of a judgment (1), were treated as if the judges had introduced another mode of ousting the bar of the statute, in addition to those pointed out in the section itself; hence it was considered that a liberal interpretation must be given to the saving clause in the section, and that a master's report or an insolvent's schedule, even though neither might satisfy the statutory requirements as to acknowledgments, should still be treated as giving a present right within the meaning of the section. This view, however, notwithstanding the high authority by which it has been supported, seems to spring from a misconception of the Act, and also of the cases which decide that the revivor of a judgment gives a new present right. The Act does not speak of an acknowledgment as an instance of the accruer of a present right, but as prolonging the time within which the creditor may sue; and however liberally the terms of the exception may be construed, nothing can operate as an acknowledgment unless it can be brought within these terms. The cases on the revivor of a judgment do indeed show that there may be a second accrual of the right to receive, but they in no way show that anything which would not be a good cause of action can make such a right accrue a second time. Before the case of Barrett v. Birmingham (2), the Court of Queen's Bench in Ireland had expressly decided that a Master's report was not an acknowledgment within the exception in the 40th section, as the Master was in no sense the agent of the debtor (3). The correctness of this decision was doubted by O'Loghlen, M.R., in Barrett v. Birmingham, but the question directly in issue in the

(1) Ante, Part III. Ch. II. p. 177, et seq.

(2) 4 Ir. Eq. R. 537.

(3) Hill v. Stawell, 2 Ir. L. R. 302; 2 Jebb. & Sym. 389.

PART III

CH. V.

Admission

in an insolvent's schedule

latter case was only whether an admission in an insolvent's schedule was a sufficient acknowledgment, and it was quite unnecessary to consider the effect of a Master's report.

It is submitted that the decision of O'Loghlen, M.R., that an admission of a debt in an insolvent's schedule was an acknowledgment within the 40th section, is correct, and that the decision in Hill v. Stawell (1) is also correct, and does not conflict with that in Barrett v. Birmingham. The ground of the judgment in Hill v. Stawell was that the Master who made the report was not the agent of the debtor, but was acting judicially, so that the report was the act of the Court and not in any way the act of the party. The requirements of the statute, therefore, were clearly not fulfilled. The admission, however, of a debt in an insolvent's schedule was made not by the Court or an officer of the Court, but was made and signed by the debtor himself; and as the schedule was made for the benefit of the creditors, it might well be said to have been made to the creditors. And the objection, that the schedule was filed in court and so was in some sense a public document or that it was not made voluntarily, would apply equally to an answer in Chancery, which, as we have seen, might contain an acknowledgment within the meaning of the 40th section (2). The decision in Barrett v. Birmingham is supported by several other cases (3), but in none of them did the point arise in any proceedings in insolvency, but they were all cases of independent actions and suits. Proceedings in insolvency, as distinguished from bankruptcy in Ireland (4), as in England, are now abolished, but the principles of the decisions in these cases may

(1) 2 Ir. L. R. 302.

(2) See ante, p. 221.

(3) Morrogh v. Power, 5 Ir. L. R. 494; Dugdale v. Vize, ib. 568; and see Hanan v. Power, 8 Ir. L. R. 505. In re West's Estate, 3 L. R. Ir. 77.

(4) See 35 & 36 Vict. c. 58, s. 17.

still be of practical importance as illustrating the effect PART III. of admissions in bankruptcy and analogous proceedings.

CH. V.

by a bank

An admission of a debt by a bankrupt in his balance- Admission sheet, statement of affairs or examination, it is submitted, rupt. satisfies the statutory requirements of an acknowledgment equally with an admission by an insolvent in his schedule, and can in like manner be set up by the creditor in an independent action, but not in the bankruptcy proceedings themselves. In Barrett v. Birmingham, indeed, it was hinted (1) by O'Loghlen, M.R., that there might be a distinction between a bankrupt's balance-sheet and an insolvent's schedule, and in the case of In re Clendinning (2) Macan, J., agreed that there was a distinction, and seemed to think it lay in this, that a bankrupt could not after his bankruptcy do anything to alter the rights of his creditors, but that the same principle did not equally apply in insolvency. But in the latter case the point arose on a simple contract debt, and in the bankruptcy proceedings themselves; therefore, the question, whether an admission in a bankrupt's balance-sheet of itself satisfies the statutory requirements of an acknowledgment under the 40th and 42nd sections, did not in fact arise; and the decision, so far as it rests on the incapacity of a bankrupt to alter the rights of his creditors, is inapplicable to cases where the point under discussion arises otherwise than in the bankruptcy proceedings themselves. Although, therefore, the decision is doubtless correct for the reasons stated in a former chapter (3), it is not inconsistent with the position as to bankruptcy laid down above. In sect. 40 of 3 & 4 Wm. IV. c. 27 (now sect. 8 of By whom 37 & 38 Vict. c. 57), the words "shall have been paid " mean paid "by the person liable to pay" (4). The very

(1) 4 Ir. Eq. R. 545.

(2) 9 Ir. Ch. R. 284.

(3) Part I. Ch. IV. p. 101, et seq.

Chinnery v. Evans, 11 H. L. 115; Homan v. Andrews, 1 Ir. Ch. R. 106; Harlock v. Ashberry, 19 Ch. D. 539; Newbould v. Smith, 29 Ch. D. 882.

must payments be

made?