PART I. CH. IV. of a board. Where the Commissioners under a town improvement Act passed a resolution adopting a report of their finance Resolution committee, which contained an acknowledgment of the plaintiff's debt, but the resolution was not communicated to the plaintiff, it was held that there was no sufficient acknowledgment (1). In another case, where the plaintiff was present as one of a board of directors by whom a resolution, put forward as an acknowledgment, was passed, it would seem that there was sufficient communication to the plaintiff; but Wood, V.-C., expressed a strong opinion that no resolution come to under such circumstances could be available as an acknowledgment; he seems to have thought that, as the plaintiff was acting as one of the promisors, he could not be also one of the promisees (2). Acknowledgment by an agent. 19 & 20 Vict. c. 97, s. 13. The provision in Lord Tenterden's Act being that the acknowledgment is to be in writing, "signed by the party chargeable thereby," it was held that an acknowledgment signed by an agent was insufficient (3). Now, however, the Mercantile Law Amendment Act, 1856, sect. 13, provides as follows: "An acknowledgment or promise made or contained by or in a writing signed by an agent of the party chargeable thereby, duly authorised to make such acknowledgment or promise, shall have the same effect as if such writing had been signed by such party himself." This section was held not to apply to cases where the acknowledgment was made before the passing of the Act (29 July 1856), but applies to all acknowledgments made since that date, though the debt acknowledged was contracted before (4). (1) Bush v. Martin, 2 H. & C. 311; 33 L. J. Exch. 17. (3) Hyde v. Johnson, 2 Bingh. N. C. 776; 3 Scott, 289; Gibson v. (4) Archer v. Leonard, 15 Ir. Ch. R. 267; Leland v. Murphy, 16 Ir. Ch. R. 500. This enactment brings the law with respect to written acknowledgments by an agent back to the same state in which it was before Lord Tenterden's Act, before which an acknowledgment by an agent was as valid as part payment or payment of interest by an agent has always been (1). The question whether the agent had or had not authority to make the acknowledgment must be always a question of fact to be decided according to the particular circumstances of each case. In Curwen v. Milburn (2), where the plaintiff changed his solicitor and authorised his new solicitor to obtain and receive from his former solicitor all deeds and other documents, and also an account of his dealings and transactions in the plaintiff's land "since he was appointed my solicitor many years ago, or for such other period as you may think fit," North, J., held that the new solicitor had authority to make an acknowledgment to take out of the statute items that were barred; the decision of North, J., was affirmed in the Court of Appeal, but no opinion was expressed on this point (3). In Ingram v. Little (4), where a debtor's wife sent to a creditor an unsigned letter, written by her at the debtor's dictation, in an envelope along with a letter signed by her in her own name, and referring to the unsigned letter, showing that she had written it on her husband's behalf, Cave, J., held that there was no sufficient signature to satisfy sect. 13 of the Mercantile Law Amendment Act. But the position of the signature is immaterial, so long as it verifies the whole acknowledgment (5). (1) Burt v. Palmer, 5 Esp. 145; Williams v. Innes, 1 Camp. 364; Anderson v. Sanderson, Holt, 591. See Gregory v. Parker, 1 Campb. 394; and see post, Chap. V. (2) 42 Ch. D. 424. (3) Curwen v. Milburn, 42 Ch. D. 434. (4) Cab. & Ell. 186. Holmes v. Mackrell, 3 C. B. N. S. 789. PART 1. CH. IV. H PART I. Whether acknowledgment to be con strued by judge or jury. Amount need not be expressed. The construction of the acknowledgment, even when contained in a single document, was formerly considered the province of the jury (1). Afterwards this point seems to have been considered doubtful (2). It is now settled that no exception is to be made to the general rule that the construction of a document is for the Court alone, but where the document is connected with extrinsic evidence affecting the construction, it is a question for the jury (3). It is not necessary that the acknowledgment relied on should state a definite amount. If some debt is acknowledged, it is even immaterial that the correctness of the amount claimed is disputed (4). The amount of the debt must of course be proved at the trial, or the damages will be merely nominal (5). In Cheslyn v. Dalby (6) a deed executed by the parties recited "that the defendant was indebted to the plaintiff, but the amount was not ascertained, and that the defendant was willing to pay the amount to be ascertained as therein mentioned." This was held to be an absolute promise to pay the amount as proved at the trial. So a letter, undertaking to pay a solicitor any sum which might be found due to him for costs, when the same should be taxed and (1) Lloyd v. Maund, 2 T. R. 760; Rucker v. Hannay, 4 East, 604, n.; Bird v. Gammon, 3 Bingh, N. C. 883; 5 Scott, 213; Frost v. Bengough, 1 Bing. 266; Colledge v. Horn, 3 Bing. 119. (2) Dodson v. Mackey, 8 A. & E. 225, n.; and see Bucket v. Church, 9 C. & P. 209; Linsell v. Bonsor, 2 Bingh. N. C. 241. (3) Routledge v. Ramsay, 8 A. & E. 221; Morrell v. Frith, 3 M. & W. 402; Collis v. Stack, 1 H. & N. 605; 26 L. J. Exch. 138. (4) See Haydon v. Williams, 7 Bing. 163; Kennett v. Milbank, 8 Bing. 38; Courtenay v. Williams, 3 Hare, 549; Richardson v. Fen, Lofft 86; Colledge v. Horn, 3 Bing. 119; Rendell v. Carpenter, 2 Y. & J. 484; Lechmere v. Fletcher, 1 C. & M. 623; Bird v. Gammon, 3 Bing. N. C. 883; 5 Scott, 213; Waller v. Lacy, 1 Scott, N. R. 186; Gardner v. McMahon, 3 Q. B. 561; Sidwell v. Mason, 2 H. & N. 306; 26 L. J. Exch. 407; Edwards v. Culley, 4 H. & N. 377; Skeet v. Lindsay, 2 Exch. D. 314. (5) Dickenson v. Hatfield, 5 C. & P. 46; 1 M. & R. 141; 2 M. & M. 141. (6) 4 Y. & C. Exch. 238. CH. IV. of account pending. certified, was held to take the amount as settled by PART I. taxation out of the statute (1). The case of Prance v. Sympson (2) rests upon analogous Admission grounds to the cases referred to above. That was a bill in equity for an account with reference to transactions which were all more than six years old. In order to take the case out of the statute the plaintiff relied upon a letter from the defendant, which was in answer to a request from the plaintiff to settle the account by paying the balance due, and in which the defendant promised to go into the account, but intimated that the balance might probably be the other way. This letter was held to be an answer to the statute by Wood, V.-C., who said :-"It is not necessary for the purpose of a suit for an account to have an acknowledgment that a debt is actually due; but it is enough that there is an acknowledgment that an account is pending, and that the defendant promises to pay the balance (if any) due from him upon such account; because it may be that the precise result of the account, and on which side the balance will be, cannot be known beforehand❞ (3). ledgment If, however, a definite sum smaller than the sum Acknowclaimed is named in the acknowledgment, only the sum named, it seems, is taken out of the statute (4). of smaller sum. evidence of If there is no date on the written acknowledgment, it Parol may, it seems, be supplied by parol evidence. This, in acknowone report of Edmunds v. Downes (5), is given as a direct ledgment. decision, but in another report (6) of the same case it appears to have been left in doubt, although, even according to that report, the inclination of Bayley, B., was in favour of that view. And it is submitted that the (1) Archer v. Leonard, 15 Ir. Ch. R. 267. See Curwen v. Milburn, PART I. Limited acknowledgment. name of the creditor, if not mentioned in the acknowledgment, may be supplied in the same way (1). If it is not clear from the acknowledgment itself to what debt it refers, this also may be proved by parol (2), and, if the acknowledgment is lost, parol evidence of its contents is admissible (3). An acknowledgment coupled with an assertion that the debtor has a set-off sufficient to countervail the debt is not sufficient to take the debt out of the statute (4). So if the acknowledgment points to payment only in a particular manner, or out of a particular fund, it cannot amount to a promise to pay in any other manner (5). Thus a submission to arbitration, containing a promise to pay whatever should be found due at such times and in such proportions as the arbitrators should appoint, is not available as an acknowledgment if the arbitration prove abortive, unless the submission contains an unqualified acknowledgment of the debt (6). If the acknowledgment be only part of a general arrangement of accounts between the parties, an unconditional promise to pay will not be inferred (7). Where there are other expressions which alone would be held to amount to an absolute promise, a particular mode of payment may possibly be so mentioned as merely to suggest a convenient arrangement, and not to qualify the promise (8). (1) See Hartley v. Wharton, 11 A. & E. 934. (2) Spickernell v. Hotham, Kay, 669; Bewley v. Power, Hayes & Jones, 368. (3) Haydon v. Williams, 7 Bing. 163. (4) In re River Steamer Co. Mitchell's Claim, L. R. 6 Ch. 829. (5) Whippy v. Hillary, 3 B. & Ad. 399; Routledge v. Ramsay, 8 A. & E. 221; Cawley v. Furnell, 20 L. J. C. P. 197; Courtenay v. Williams, 3 Hare, 550; In re Littles, 10 Ir. Eq. R. 275; Buckmaster v. Russell, 10 C. B. N. S. 745; Philips v. Philips, 3 Hare, 281. (6) Hales v. Stevenson, 9 Jur. N. S. 300; 7 L. T. N. S. 317; 8 L. T. N. S. 798. (7) Cripps v. Davis, 12 M. & W. 159; Goate v. Goate, 1 H. & N. 29; Francis v. Hawkesley, 1 E. & E. 1052; 28 L. J. Q. B. 370. (8) Gardner v. McMahon, 3 Q. B. 561; Evans v. Simon, 9 Exch. |