the same principle of interpretation, and the same ratio decidendi, are applicable (y). The person to make an acknowledgment of the By whom right to arrears of rent, or of interest in respect of under sect. 42. any sum charged upon or payable out of any land or rent, to any legacy, or to damages in respect of such arrears, under the sect. 42 of the 3 & 4 Will. 4, c. 27, is the person by whom the same is payable, or his agent. The words "the person by whom the same is payable," in the sect. 42 of the 3 & 4 Will. 4, c. 27, are of such large import and meaning that they would comprehend, not only a mortgagor and his representatives, upon whom the contract would be personally binding, but would also include a second or a third mortgagee, by whom the principal and interest due to the first mortgagee might with propriety be said to be payable, inasmuch as the estate and right of the second mortgagee is subject and posterior to that of the first mortgagee, and he would be entitled to redeem the first mortgagee upon the payment of the principal and interest (z). They do not mean merely the person who is liable at law to pay the interest under the contract, that is, the mortgagor or his representatives, and not including a second mortgagee, as held by Stuart, V.-C. (a), but all the persons against whom the payment of such arrears may be enforced by any action or suit, and by whom, therefore, as they have a right to pay such interest in redemption of their land, interest may be properly said to be payable. If a legacy is by will charged upon land, which is then specifically devised, the devisee is not liable by any contract to pay the legacy or the interest thereon; but he is, nevertheless, a person by whom such legacy and interest are payable, for he is entitled to redeem the lands devised (y) Chinnery v. Evans, 11 H. L. C. 115. (z) 11 H. L. C. 135. (a) Bolding v. Lane, 3 Giff. 561. Personal liability unnecessary. Not to be made by a stranger. Whether by a person under disability. to him. In truth, these words of the statute appear to besides The person making the acknowledgment need not be a person who is personally liable to the charge (c). An acknowledgment under the sects. 28, 40 and 42 of the 3 & 4 Will. 4, c. 27, when made by a mere stranger, has no efficacy (d); for, as Lord Cranworth, C., said (e), with reference to chapter 42 of the same session, sect. 5, in pari materiâ, it would be absurd to suppose that the legislature meant to give any right against the debtor by the act of a mere stranger. The disability of a person against whom a claim exists does not relieve the claimant from asserting his claim within the prescribed period of limitation (ƒ). But whether an acknowledgment made under the sects. (b) Bolding v. Lane, 1 De G., J. & S. 122; 11 H. L. C. 135. (c) Lord St. John v. Boughton, 9 Sim. 129; Toft v. Stephenson, 1 De G., M. & G. 28; Bolding v. Lane, 1 De G., J. & S. 122; Roddam v. Morley, 1 De G. & J. 1. (d) Homan v. Andrews, 1 Ir. Ch. Rep. 106; Chinnery v. Evans, 11 H. L. C. 115. (e) Roddam v. Morley, 1 De G. & J. 1, 18. See also post, p. 600. (f) Vide ante, pp. 561, 562. 14, 28, 40 and 42 of the 3 & 4 Will. 4, c. 27, and the sect. 13 of the 23 & 24 Vict. c. 38, by the person to make it under those sections respectively, when such person is under any disability, would be valid, is at least doubtful. The chapter 42 of the same session warrants the inference that such an acknowledgment would be valid; for by the sect. 3 of the latter chapter, claims by specialty are to be asserted within twenty years after the cause of action, but not after, or within twenty years after an acknowledgment made; or if the person making the acknowledgment be, at the making, beyond the seas, then within twenty years from the return of such person (g). Hence, the inference on this statute, in pari materiâ with chap. 27, is, that any other disability of the person liable will not prevent an acknowledgment by him having the same effect as if he were not under such other disability. debtor or his The person to make an acknowledgment of any debt By specialty by indenture, bond, or other specialty, or any recog- agent. nizance, under the sect. 5 of 3 & 4 Will. 4, c. 42, and the 3 & 4 Vict. c. 105, s. 34, is "the person liable by virtue of such indenture, bond or other specialty, or such recognizance, or his agent." In Roddam v. Morley (h), it was observed, that the framers of the act had in their mind the single case of a sole obligor, and that the case of a bond with several obligors, or of a deceased obligor, never occurred to them. If so, then the party liable, or his agent, within these sections, so far as the intention of the legislature is concerned, must mean the individual making the acknowledgment (¿). In some instances the enactments, admitting an ac- In case of knowledgment by payment, do not express by whom implied ac (g) Sect. 5. (h) 1 De G. & J. 1. (i) Per Lord Chelmsford, C., Coope v. Cresswell, 2 L. R., C. A. 124. knowledgment where statute is silent. 9 Geo. 4, c. 14. 3 & 4 Will. 4, c. 42, &c. By one or more of liable. such an acknowledgment is to be made, and hence the question who is the person to make it. Thus, the proviso in Lord Tenterden's Act (k), that "nothing herein contained shall alter, or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever;" that is, said Tindal, C. J. (1), not confining the effect of payment to the individual paying, but of any payment made by the principal debtor, or any one acting by his authority; that, however, never can mean a payment made by a stranger, and without authority (m). But the payment may be by and to one and the same person; that is, by him for, or as the agent of, the debtor and to himself as the creditor (n). Neither the sect. 5 of the 3 & 4 Will. 4, c. 42 (o), nor the 1 Vict. c. 28 (p), nor the sect. 34 of the 3 & 4 Vict. c. 105, express by whom an acknowledgment by payment is to be made. It can hardly be doubted, however, that as well under the chap. 42 as under the 3 & 4 Will. 4, c. 27, s. 40 (q), and the 3 & 4 Vict. c. 105, the statutes imply that such an acknowledgment shall be made by the same person as is to make an acknowledgment in writing. There can be no doubt it must be made by a party interested, and not by a mere stranger (r). The person or persons making an acknowledgment several persons may be one or more of several persons, being under a joint, or a joint and several, or a common, liability in respect of the claim, or claiming under a common title, and then arises the question what is the effect of such (k) 9 Geo. 1, c. 14, s. 1. (1) Wyatt v. Hodson, 8 Bing. 309, 312. (m) Linsell v. Bonsor, 2 Bing. N. C. 241. (n) See Brocklehurst v. Jes80p, 7 Sim. 439. On this case, see Fordham v. Wallis, 10 Hare, 217. (0) Roddam v. Morley, 1 De G. & J. 1, 18. (p) See Forsyth v. Bristore, 8 Ex. 722; Chinnery v. Evans, 11 H. L. C. 115. (q) Chinnery v. Evans, supra. (r) Roddam v. Morley, 1 De G. & J. 1, 6, 18; Coope v. Cres well, L. R., 2 Eq. Ca., C. A. 112. an acknowledgment with reference to the other person or persons so liable, or so claiming. surety. The court said, in Kirkwood v. Lloyd (s), that the Principal and authorities in England establish that the acknowledgment, to affect another person than the person giving it, must be by a person expressly or impliedly authorized to make it on behalf of the person sought to be affected by it; but that those in Ireland establish that the acknowledgment will bind every other person liable whether standing in privity or not (t). In Kirkwood v. Lloyd is shown when an acknowledgment by one person will not affect another, and all the distinctions as to privies are noticed. The acknowledgment in Warrens v. O'Shea was by a principal debtor, and was held to bind the personal representatives of a surety, although made after the death of the surety. tractors or co In England, down to nearly the end of the reign of Joint-conGeorge the Fourth, and in Ireland, down to the middle debtors. of the present reign, where two or more persons were jointly, or jointly and severally, liable on a simple contract and independent of partnership (u), although the principle seems applicable equally to joint contractors who are, as to those who are not, partners (x), an acknowledgment by one or more of such persons during the existence of the joint liability, even after the expiration of the period of limitation (y), would prevent the operation of the Statute of Limitations as against the other or others (z), but made after the joint liability had determined, would not prevent the operation of the statute against the other or others (a), for on such de (s) 11 Ir. Eq. R. 561. (t) Warrens v. O'Shea, stated 11 Ir. Eq. R. 576. (u) See Fordham v. Wallis, 10 Hare, 217. (x) See Clark v. Alexander, 8 Scott, N. R. 147. (y) Perham v. Raynal, 2 Bing. 306. (2) Whitcomb v. Whiting, 2 Doug. 652; Burleigh v. Stott, 8 B. & C. 36. (a) Atkins v. Tredgold, 2 B. & C. 23; Slater v. Lawson, 1 B. & Ad. 396; Putnam v.. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217; Brandram v. Wharton, 1 B. & Ald. 463; Way |