CH. XIII. seems clear that such an acknowledgment is of no effect PARt V. after the prescribed period has run out, because the title, by means of the 34th section, then becomes extinguished, and this section can have no operation in reviving it (1). From some observations (2) of Lord St. Leonards, it would seem to be the opinion of his Lordship that the effect of giving an acknowledgment within the section is immediately to set the time running against the person to whom it is given, even though it had not begun to run before the acknowledgment was made. It is, however, conceived that there is nothing in the words of the section to compel such a construction, which Lord St. Leonards himself characterises as singular and which is contrary to the analogy of all similar provisions, whether in this statute or in 3 & 4 Wm. IV. c. 42. It is submitted that this section, being a proviso on what has gone before, only applies to cases which would come within the earlier sections, and that where it is said that when an acknowledgment shall have been given, the right of action shall be deemed to have then first accrued, the natural construction is not that whenever an acknow ledgment is given the right of action must be deemed to have accrued, but that whenever the right would under other sections have been deemed to have previously accrued, and an acknowledgment is made, the right shall be deemed to have accrued at the time the acknowledgment is made and not before. No acknowledgment can have any operation, unless it By agent. be in writing, though of course parol evidence of a written acknowledgment would be admissible where, under the ordinary rules of evidence, the contents of a writing could be proved by parol (3); and where the statute runs from the last payment of rent, this section does (1) Sanders v. Sanders, 19 Ch. D. 373. (2) Scott v. Nixon, 3 Dru. & War. 388, 404. See also Burroughs v. McCreight, 1 Jo. & Lat. 290, 304. (3) See Haydon v. Williams, 7 Bing. 163. CH. XIII. PART V. not prevent the fact of payment being proved by the parol declaration of the person paying it (1). The acknowledgment, it must be observed, is required to be signed by the person giving it, and therefore signature by an agent is insufficient (2). But, if a person signs the name of the principal by his direction in his presence, it is sufficient, for the person signing must, it seems, be looked on not as the agent but as it were the hand or instrument of the principal himself (3). To whom given. The acknowledgment must be made either to the person entitled or his agent. It is clear, therefore, that, unlike an acknowledgment under 3 & 4 Wm. IV. c. 42, s. 5, an admission to third parties would not be an acknowledgment within this section. But an acknowledgment contained in an answer in Chancery in a suit, in which the person entitled was plaintiff, has been held to be a good acknowledgment under the section (4). And in an action for use and occupation by an executor, a letter written by the defendant to the testator's attorney after the testator's death was admitted as an acknowledgment of the testator's title (5). This section specially makes acknowledgments enure for the benefit of persons claiming under those to whom they are made, but it is clear that an acknowledgment made by a person in possession is binding on those claiming through him (4). It is a question for the judge and not for the jury to decide whether documents are sufficient acknowledgments within this section. Where, however, the meaning of any writing in itself ambiguous depends on extrinsic facts and circumstances, the whole must be submitted to the jury. But it is for the Court to decide whether a writing is such that it can be an admission of title, and therefore (1) Doe d. Spencer v. Beckett, 4 Q. B. 601. (2) Ley v. Peter, 3 H. & N. 101; 27 L. J. Exch. 239. (3) Lessee of Corporation of Dublin v. Judge, 11 Ir. L. R. 8. (5) Fursdon v. Clogg, 10 M. & W. 572. evidence to go to the jury at all (1). And the Court will look at a letter in answer to which the letter containing the acknowledgment relied on is written for the purpose of explaining the latter (2). This is also in accordance with general principles, and the point has been noticed above as to acknowledgments of simple contract debts (3) upon which several of the cases have arisen (4), but they equally apply to acknowledgments under this section (5). Lord St. Leonards certainly in one case seems to have considered it for the jury to decide whether the writing amounts to an acknowledgment (6), but in his treatise on the Property Statutes (7) he lays down the law as above, and the case referred to cannot therefore be considered as throwing doubt upon it. PART V CH. XIII. acknow It does not seem that any particular form of acknow- What ledgment is necessary, but anything from which an ledgment admission of ownership in the party to whom it is given is sufficient. may be fairly implied would be sufficient; thus a correspondence from which it appeared that the person in possession claimed to hold the property till certain accounts as to charges thereon, to which he claimed to be entitled, were settled, and offering to refer them to arbitration, has been held sufficient (8). And even a letter written by the person in possession in answer to one demanding rent, written by the attorney of the person entitled, the first-mentioned letter not denying the title of the person entitled but begging mercy on account of expenses the writer had been put to in defending his title against adverse claimants, has been (1) See Morrell v. Frith, 3 M. & W. 402. (2) Fursdon v. Clogg, 10 M. & W. 572. (3) See Part I. Ch. IV. p. 98. (4) See Routledge v. Kamsay, 8 A. & E. 221; Morrell v. Frith, 3 M. & W. 402; Collis v. Stack, 1 H. & N. 605. (5) Doe d. Curzon v. Edmonds, 6 M. & W. 295. (6) Incorporated Society v. Richards, 1 Dru. & War. 258, 290. (7) Page 67. (8) Incorporated Society v. Richards, 1 Dru. & War. 258. CH. XIII. PART V. held good as an acknowledgment (1). So also has an admission that the person making the acknowledgment was holding the property as tenant of the person entitled (2), or an offer to take a lease, though such offer was not accepted (3). But where, in answer to a communication from a person claiming the property, demanding rent and offering a lease, the person in possession after expressing an opinion that he could establish his right if it were tried, said that under all the circumstances he had made up his mind to accede to the proposal, but the proposal was never carried out and no lease was executed or any rent paid, this was held to be no acknowledgment, as there was no final bargain (4); and this was clearly right, as the correspondence in fact amounted merely to negotiations for a compromise which went off. A covenant to pay a mortgage debt, contained in a deed which for this purpose must be considered as executed subsequently to and referring to the mortgage, has been held in ejectment by the mortgagee to be an acknowledgment of the existence of the relations of mortgagor and mortgagee, and therefore an acknowledgment of the mortgagee's title (5). In the case referred to the mortgage was of copyhold, and the mortgagee was admitted on the 27th October, 1827, upon a surrender made the same day, and there was this peculiarity, that a deed was produced expressed to bear date also on that day between the mortgagor and mortgagee, reciting that the surrender was made by way of mortgage and containing a proviso for redemption in the form of a covenant to resurrender by the mortgagee and a covenant for payment by the mortgagor; it was proved, however, that this deed was in fact executed on the 23rd August, 1834; (1) Fursdon v. Clogg, 10 M. & W. 572. Goode v. Job, 28 L. J. Q. B. 1. Lessee of Corporation of Dublin v. Judge, 11 Ir. L. R. 8. (5) Jayne v. Hughes, 10 Exch. 430. CH. XIII. and it was held in ejectment brought on the 9th February, PART V. 1854, that, although no interest had been paid, the action was in time, as the acknowledgment was made on the 23rd August, 1834, the day on which the deed was actually executed. In the Irish case of Hobson v. Burns (1) the lessor of the plaintiff in ejectment brought in 1848, produced as an acknowledgment an insolvent's schedule signed by the defendant less than twenty years before action, in which was inserted amongst her liabilities a sum due for costs in an action of ejectment in 1824, in which she had been defeated, and for damages. subsequently obtained in an action for mesne profits; possession, it appeared, had not been given under the judgment in ejectment; and it was held, irrespective of all other reasons, that there was no acknowledgment within the statute, for if the schedule was an acknowledgment of title at all, it was only an acknowledgment at the time it was signed of a title existing at an antecedent period in one through whom the defendant claimed, and was quite consistent with the non-existence of such title at the time the acknowledgment was made. If, however, the acknowledgment relied on is made within the twelve years and admits that there existed prior to the acknowledgment but also within the twelve years a title in the person whose right is in question or in those through whom he claims, it may well be argued that such acknowledgment would be sufficient, and it would probably be held so, though it is believed that there is no case on the point. It may be observed with reference to the case of Hobson v. Burns (1) that an admission that a person has recovered in ejectment would not appear to be an admission of title at all, for such an admission is quite consistent with an assertion that the judgment in ejectment was wrong, and that such person had no title at all. Another point was raised in the case of Hobson v. Burns (1) and was not decided, (1) 13 Ir. L. R. 286. |