cutors or its effect. One of several executors or administrators who are By one of in the possession, or the receipt of the profits, of chat- several exetels real, or in the receipt of a rent of that nature, or administrators, who are entitled to such chattels subject to a charge. thereon, may happen to give an acknowledgment of the title to such chattels under either the section 14, or the section 28 of the 3 & 4 Will. 4, c. 27, of such chattels, or under the section 40 to such charge thereon, and the question will then be whether and how far the others are or may be affected by such acknowledgment. each. Co-executors, however numerous, are regarded, in How co-exelaw, as an individual person; and, by consequence, the cutors are regarded, and acts of any one of them in respect of the administration the power of of the effects, are deemed to be the acts of all (o). Thus, the release of a debt (p), the settlement of an account (q), which, being evidence of payment, must be by him in his representative capacity (r), the assent to a legacy (s), the attornment (t), the grant or surrender of a term (u), by one of several executors will bind all, for they all have a joint and entire authority over the whole property (x); but as an assignment of a mere chose en action gives no legal advantage, and is operative in equity only, a court of equity will not act upon such assignment, and interfere to give the particular creditor an advantage against the other executors and the general creditors (y). On the same principle an acknowledgment by one of several executors or administrators of the title to chat (0) Touch. 484; Ex parte Rigby, 19 Ves. 462. (p) Jacomb v. Harwood, 2 Ves. Sen. 267; Herbert v. Pigott, 4 Tyrw. 285. (q) Smith v. Everett, 27 Beav. 446. (r) Scholey v. Walton, 12 M. & W. 510. (8) Com. Dig. Administration (c. 8); Cole v. Miles, 10 Hare, (t) Dy. 23 b. in marg.; 1 Mad. 616. (u) Simpson v. Gutteridge, 1 Mad. 616. See also Turner v. Hardey, 9 M. & W. 770. (a) 1 Roll. Ab. 924; Exors. (0.), Com. Dig. Administration (B. 12); Owen v. Owen, 1 Atk. 495. (y) Lepard v. Vernon, 2 Ves. & B. 51. When liable in that character per tels real under the section 14, and of the right to a charge thereon under the section 40, will bind the other. An acknowledgment under the section 28 by one of several executors in possession as mortgagees but in only their representative character, will bind all. Under that section indeed, in the case of more than one mortgagee, and of an acknowledgment by one or more short of all, the acknowledgment binds only the person or persons making it, and not the person or persons entitled to any other undivided or divided part of the money, or land, or rent. But this is to be understood where the mortgagees claim several and distinct interests, and not where they claim in a representative character and collectively as, in fact, one mortgagee, where there are several executors or administrators. But one of several executors or administrators, who in that character are liable to a charge, apart from the sonally only. land or rent, or to a legacy, under the section 40, or to arrears, under the section 42, may also happen to give an acknowledgment of the right to such charge, legacy, or arrears, and the question will then be whether and how far the others are or may be personally liable to such charge, legacy, or arrears. Though one executor may dispose of the assets of the testator so as to bind the others, they cannot severally make a new contract so as to bind each other (z), or create a new liability and impose a charge on the others personally and in their own individual character, which, without such act, would never have existed (a), as in taking possession of a chattel real or personal (b), or by a devastavit (c); and one executor is not the (2) Per Lord Abinger, Turner (c) Hargthorpe v. Milforth, Cro. El. 318; Williams v. Nizon, 2 Beav. 472; Williams' Exors., pt. 4, bk. 2, ch. 2, s. 2. agent of another to bind him by contract (d). The same principle extends to one of several administrators (e). In this respect no distinction between express or Whether the written acknowledgments, and acknowledgments im- ment ex acknowledgment be explied, as by payment, exists, although sometimes sug- press or only implied. gested. The effect of the former kind of acknowledgment sometimes may differ from the effect of the other kind. The effect of the former kind is confined to the person making it (f), but the latter kind, as relieving, pro tanto, from the common liability, is a benefit to all the persons liable. This distinction may possibly account for the difference in the language of the 3 & 4 Will. 4, c. 42, s. 5, between acknowledgments in writing and by part payment, which, as to the person making them, seem intended to be placed on the same footing, payment being treated as one species of acknowledgment (g). An express acknowledgment by one of several exe- Express by one does not cutors has been held not to deprive the others of the deprive the benefit of the Statute of Limitations (h). Of this de- others of the cision, Parke, B., said, "it appears to me that that statute. case is founded in justice and good sense, and ought to be followed" (i). If made by a sole executor, it will take a case out of the statute (k). benefit of the Whether an implied acknowledgment by payment Whether when by one executor will deprive the others of the benefit implied only. of the statute was noticed in, but not decided by, the cases of Atkins v. Tredgold (1), and M'Culloch v. (d) Per Parke, B., Turner v. Hardey, supra. (e) 2 Ves. sen. 267; Touch. 485, 486; Smith v. Everett, 27 Beav. 454. (f) See Bolding v. Lane, 1 De G., J. & S. 122. (g) Coope v. Cresswell, L. R., 2 Eq. C., C. A. 112, 123. L. (h) 9 Geo. 4, c. 14; Tullock v. Dunn, 1 Ry. & M. 416. (i) Scholey v. Walton, 12 M. & W. 510. (k) Smith v. Poole, 12 Sim. 17. See also Briggs v. Wilson, 5 De G., M. & G. 12. (1) 2 B. & C. 23. R R By one of several partners; -a surety; -a mortgagor as against and Dawes (m). The question arose in, but was not decided by, Scholey v. Walton (n). Lord Abinger there said, probably one executor may by his acts bind another, but he must do the act as an executor. Parke, B., in the same case, seemed to think the act should also be with the intention of binding the assets of the testator. The payment was held to have been made by the executor, not quà executor, but in his own right (o). On principle the two kinds of acknowledgment, with reference to this question, appear to be undistinguishable, and the same effect ought to be given to one as to the other. An acknowledgment therefore by one of several executors or administrators of a charge under the section 40, or of arrears under the section 42, so as to create any personal liability thereto in that character apart from the land, or to a legacy under the former section (p), will not affect the others. One of several partners may take out of the Statute of Limitations, by an acknowledgment, a claim in relation to the property, or a liability of the partnership as against the other partners (q). The payment of interest by a surety in a bond given as a collateral security for a sum of money primarily secured by a mortgage of a reversionary legacy charged on land, and payable on the death of the surety, will preserve the right of the mortgagee to the benefit of the legacy so assigned, although his right to the mortgage debt may be barred (r). As between a mortgagor and first and second mortbetween mortgagees, an acknowledgment by the mortgagor to the first mortgagee affects the mortgagor only, and will gagees. (m) 9 Dow. & R. 40. (n) 12 M. & W. 510. (0) See also Bassett v. Way, 5 Hare, 55. (p) See Holland v. Clark, 1 You. & C. C. C. 151. (4) See Perry v. Jackson, 4 T. R. 516, 519; Clark v. Alexander, 8 Scott, N. R. 147. (r) Seager v. Aston, 3 Jur., N. S. 484; 26 L. J., N. S., Ch. 809. not affect the second mortgagee so as to enable the first mortgagee to claim from the estate, as against the second mortgagee, more than six years' arrears of interest on his security (s). owners, ent interests, or one person characters. Where a right exists to or against real estate claimed By one of several persons by several persons who are entitled to different interests, having differor some of whom, in addition to being beneficial may also fill other wholly different characters, and the filling two rights and liabilities incident to those characters may be in law wholly different (t), an acknowledgment by one person so entitled may bind the others, or by one and the same person filling different characters may bind him either in both, or in only one of such cha racters. A tenant for life and a tenant in remainder are Tenant for life; privies in estate; and as in the case of a release (u), so in the case of acknowledgment, when made by the former before, but not after, the expiration of the period of limitation, will bind the latter (x). land. In Fordham v. Wallis (y), Turner, V.-C., said, it charges on may occasion great inconvenience if payment of interest by a tenant for life of land charged with a principal debt is not to bind the remainderman from setting up the statute, because the creditor may receive interest for twenty years, and then lose the principal, because he has not sued within six years. In Coope v. Cresswell, Lord Chelmsford, C., said, that in the case of a charge on land the tenant for life and the remainderman of the land are so united in interest that the payment by the one might be regarded as an acknowledgment of the charge by the other. Where a settlement recites the existence of prior (s) Bolding v. Lane, 1 De G., J. & S. 122; 11 H. L. C. 135. (t) See Putnam v. Bates, 3 Russ. 188; Fordham v. Wallis, 10 Hare, 217. (u) Co. Litt. 267 b. (x) Gregson v. Hindley, 10 Jur. 383. (y) 17 Jur. 228, 229; 10 Hare, 217. |