must have in order to comply with the statute, and to give authenticity to the whole of the instrument (ƒ). An acknowledgment in writing is required to be By deed must signed by the person making it (g); and therefore, be signed. although, in general, deeds do not require to be signed (h), yet, if an acknowledgment be made by a deed, the deed must be signed by the person making the acknowledgment. ments. An implied acknowledgment by part payment of Implied acknowledgprincipal or interest stands on a different footing from the making of promises; for these are often rash or ill interpreted, while money is not paid without deliberation; and payment is an unequivocal act so little liable to misconstruction, as not to be open to the objection of an ordinary acknowledgment (i), is not an acknowledgment by words only but by conduct (k), is more conclusive than an acknowledgment either verbal or written, is evidence of the subsistence of a debt, and shows that the payee has a demand against the party who makes the payment (1). The thing done, and not the words used, constitute the acknowledgment (m). And such an acknowledgment may be proved by parol evidence (n). payment. The part payment of a principal sum means, not the What is part naked fact of payment of a sum of money (0), but payment of a smaller on account of a greater sum, due from the person making the payment to him to whom (f) Caton v. Caton, L. R., E. & I. App. 127. (g) 3 & 4 Will. 4, c. 27, ss. 14, 28, 40, 42; c. 42, s. 5. (h) See Queen v. Goddard, 3 Salk. 171; Cromwell v. Grimsden, 2 Ib. 462; 1 Stra. 764; Ex parte Hodgkinson, 19 Ves. 296; Taunton v. Pepler, 6 Mad. 166; Com. Dig. Fait, B. 1; Pres. Ab. 61; Cherry v. Heming and Needham, 19 L. J., N. S., Ex. 63, 4 Ex. Rep. 631, S. C. See also 4 T. R. 313; 2 M. & W. 111; Cooch v. Goodman, 2 Gale & D. 159, 2 Q. (k) 2 C., M. & R. 723; 1 Ex. (1) 3 You. & Jer. 523; Bam- (n) Cleave v. Jones, 6 Ex. 573. Need not be in money, -nor to the creditor himself. And may be constructive only. it is made, and implies an admission of such greater sum being then due and a promise to pay it (o). The part payment need not be in money, but may be without money having actually passed between the parties (p), and in a mode which the parties agree shall be treated as equivalent to a payment in money, as by a settlement of accounts (g). Therefore when two persons indebted to each other meet and agree to set off their respective debts, that is not a mere settlement of accounts, but is as much a payment as if money had passed between them (r), and such an account is a 'part payment or part satisfaction" within the statute applicable to specialties (s). 66 So by agreement between parties the payment by the debtor of money owing by the creditor to a third person may be a mode of payment, either of interest, or, in part, of the principal to the creditor (t). The payment may be constructive only; as where a tenant for life of an estate subject to a charge is entitled to the interest of the charge, he will be deemed, both at law (u) and in equity (x), to have kept down and paid the interest, and thus preserve the right to the capital of the charge. So the receipt of rents by an equitable mortgagee in possession may be taken, primâ facie, as a payment (0) Waters v. Tompkins, 2 C., M. & R. 723. See also Cottam v. Partridge, 4 M. & G. 271, 287. (p) Maber v. Maber, L. R., 2 Ex. 153. (q) Forster v. Thompson, 2 Con. & L. 568. (r) Ashby v. James, 11 M. & W. 542; Forster v. Thompson, 2 Con. & L. 568; Scholey v. Walton, 12 M. & W. 510; Walker v. Butler, 6 E. & B. 506; Holmes v. Mackrell, 3 C. B., N. S. 789; Bodger v. Arch, 10 Ex. 333; Amos v. Smith, 1 H. & C. 238; Manderston v. Robertson, 4 Man. & Ry. 440. (s) 3 & 4 Will. 4, c. 42; Amos v. Smith, supra. (t) 7 Q. B. 484. (u) Dillon v. Kennedy, 1 Jebb & Sy. 579; Cummins v. Finn, stated in Kirkwood v. Lloyd, 12 Ir. E. R. 585, 591. (x) See O'Fallon v. Dillon, 2 Sch. & L. 20; Corbett v. Barker, 1 Anstr. 138; 3 Ib. 755; Reerev. Hicks, 2 Sim. & S. 403; Rafety v. King, 1 Keen, 601; Burrell v. Lord Egremont, 7 Beav. 205; Kirkwood v. Lloyd, 11 Ir. E. R. 561; 12 Ib. 585; Hyde v. Dallaway, 2 Hare, 528; Burrowes v. Gore, 6 H. L. C. 907; Binns v. Nichols, L. R., 2 Eq. Ca. 256; 35 L. J., Eq. 635, S. C. 589 Sagor (y). mode of ac section 40 of 3 & 4 Will. 4, c. 27, in terms, Is only one treats part payment as distinct from acknowledgment. knowledgment. In reality, however, payment is only a mode of acknowledgment (z), and in section 5 of c. 42 of the same session is so treated by the words, "such acknowledgment by writing, or part payment or part satisfaction as aforesaid" (a). In cases within Lord Tenterden's Act (b), part pay- Evidence of. ment was formerly held not proveable by a mere verbal acknowledgment, or by a mere settlement of accounts, but only by either evidence of the actual payment, or a writing such as the act requires (c). But an acknowledgment by payment is an acknowledgment by conduct and not by words only, and the effect and proof of payment since the 9 Geo. 4, c. 14, remains exactly as before (d); and therefore a written acknowledgment of payment unsigned or even a verbal one, or one made by the creditor himself before, but not after, the statute has operated (e), is sufficient evidence of the payment (ƒ), although if such written and unsigned acknowledgment be a privileged communication it would be inadmissible (g). (y) See Brocklehurst v. Jessop, 7 Sim. 438. On this case, see Fordham v. Wallis, 10 Hare, 217. (z) 1 B. & Ald. 467; 3 Q. B. 576. (a) See Coope v. Cresswell, L. R., 2 Eq. C. C. A. 112, 123. (b) 9 Geo. 4, c. 14. (c) Willis v. Newham, 3 You. & J. 519; Waters v. Tompkins, 2 C., M. & R. 723; Bayley v. Ashton, 1 Ad. & E. 493, 4 Per. & D. 204, S. C.; Maghee v. O'Neil, What acknowledgments under c. 27 must be express. What may be either express or implied. The acknowledgment of a title to land, or to rent (d), of the title of a mortgagor not in possession, or of his right of redemption (e), and of a right to arrears of rent, of interest of money charged upon or payable out of any land or rent, or in respect of any legacy, and of any damages in respect of such arrears of rent or of interest (f), must be in writing. In Stansfield v. Hobson (g), Sir J. Romilly, M. R., said that the statute has only made a difference in this respect, that that which before the statute was a sufficient parol declaration must now be " in writing signed by the mortgagee or the person claiming through him." An acknowledgment to a mortgagee of his title to land is to be by writing (h), or by part payment of the principal money or interest secured by the mortgage (i), and of his title to rent within the section 1 of the former statute, in writing (k), and of his right to the principal money in either mode (1). The acknowledgment of a right to any money charged upon or payable out of any land or rent, or to any legacy (m), to any sum secured by specialty (n), may be either in writing, or by part payment of the principal money or some interest thereon; and to take a case out of the 3 & 4 Will. 4, c. 42, s. 5, there must be not merely a payment, but an acknowledgment by payment (o). The acknowledgment of a right to the personal estate, or to any share of the personal estate, of any Bristowe, 8 Ex. 716; Ford v. (k) Ib., sect. 14. (1) 3 & 4 Will. 4, c. 27, s. 40. (m) Ib. (n) 3 & 4 Will. 4, c. 42, s. 5; 16 & 17 Vict. c. 113 (I.). (0) Per Turner, L. J., Whitley v. Lowe, 2 De G. & J. 712. person dying intestate, may be either by accounting for or paying some part of such estate or share, or some interest in respect thereof, or in writing (p). The consent or agreement which will deprive a person of the benefit of the 2 & 3 Will. 4, cc. 71, 100, where the right is in each case made absolute and indefeasible, is to be for the enjoyment of the right claimed, and expressly made or given for the purpose by deed or writing. If by deed it need not be signed (q); but if by a writing, not being a deed, it must be signed by the person against whom the claim is made or some one through whom he claims; and an answer to a bill in Chancery, signed and sworn, may be a sufficient consent under the latter statute (r). SECTION II. By whom Acknowledgments are to be made. agent. An acknowledgment in writing to take a claim out When by a of Lord Tenterden's Act (s), or out of the Common Law debtor or his Procedure Amendment Act (Ireland), 1853 (t), which adopts the terms of that act (u), must have been made by the debtor himself, and could not be made by an agent, but now may be made by an agent (x). In other cases, however, an acknowledgment must When by prinbe made by the person himself, and cannot be made by cipal only. an agent; as to acknowledge the title of a person entitled to land or a rent by a person in possession, or in receipt of the profits, or of the rent (y); to (p) 23 & 24 Vict. c. 38, s. 13. (a) See ante, p. 587. (r) Toymbee v. Brown, 3 Ex. 117. (8) 9 Geo. 4, c. 14; Hyde v. Johnson, 2 Bing. N. C. 776; Clark v. Alexander, 8 Scott, N. R. 147. (t) 16 & 17 Vict. c. 113, s. 24. (u) In re Clendinning, 9 Ir. (x) 19 & 20 Vict. c. 97, s. 13. |