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It is a question for a judge whether a writing amounts to an acknowledgment of title under this section. In such a case the statute runs again from the time when the acknowledgment was executed or signed, and not from the period at which it bears date.2 An answer in Chancery, within the statutory limit, is admissible against its maker.3
REVIVAL OF MORTGAGOR'S TITLE.
(3 & 4 Will. 4, c. 27, s. 28.)
"When a mortgagee shall have obtained the possession or receipt of the profits of any land, or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring a suit to redeem the mortgage, but within twenty years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment of the title of the mortgagor, or of his right of redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, in writing, signed by the mortgagee or the person claiming through him; and in such case no such suit shall be brought but within twenty years next after the time at which such acknowledgment, or the last of such acknowledgments were given."
An acknowledgment to a third person is insufficient.4
1 Doe dem. Curzon v. Edmonds, 8 M. & W. 402.
2 Jaynes v. Hughes, 24 L. J. 115, Exch.
Goode v. Job, 28 L. J. 1, Q. B.
Batchelor v. Middleton, 6 Hare, 83.
The 40th section provides similarly, that no action or suit shall be brought to recover any sum secured on mortgage after twenty years from the date of the right of action, unless in the meantime there shall have been a part payment of the principal or interest, or unless in the meantime some " acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent."
Similarly, by 3 & 4 Will. 4, c. 42, s. 3, actions of debt on specialty or scire facias are barred after a lapse of twenty years from the date of the right of action, unless such right be similarly extended by an acknowledgment in writing, or by part payment, by the party charged, or his agent.
(2 & 3 Will. 4, c. 71.)
By the 1st section of this act it is provided, that no claim by custom, prescription, or grant, to any right of common or profit à prendre from or upon any lands belonging to the Crown, or any corporation aggregate or sole, shall, with certain exceptions, be defeated after thirty years' uninterrupted enjoyment, by showing title prior to that period; and, after sixty years, such enjoyment shall constitute an indefeasible title, unless it be proved to have been under an express agreement by deed or writing.
REPRESENTATIONS OF CHARACTER.
(9 Geo. 4, c. 14, s. 6.)
"No action shall be brought whereby to charge any person upon or by reason of any representation or assurance, made or given, concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon,1 unless such representation or assurance be made in writing, signed by the party to be charged therewith." 2
The 2nd section provides that, in similar cases of disputed easements issuing out of similar demesnes, a title shall not be barred by evidence only that it began at a time prior to twenty years previously; and makes the prescription indefeasible after forty years of uninterrupted enjoyment, unless it be shown to have been under an agreement by deed or writing.
The 3rd section makes a right of user of light similarly indefeasible after twenty years of actual enjoyment, unless under an agreement by deed or writing.
Many other cases might be cited, in which the Legislature has made written evidence the only admissible kind of evidence, to the total exclusion of even the most direct oral evidence. But the above enactments are those which are of the most constant practical recurrence, and which have therefore been selected, on due deliberation, as the most suitable for the dimensions of the present work. The different statutes, such as the Statutes of Frauds, of Limitation, and Prescription, will be consulted with the utmost advantage to the practitioner; and also the valuable notes to them in the late edition of Chitty's Statutes, by Messrs. Welsby and Beavan.
1 Lyde v. Barnard, 1 M. & W. 115.
2 Swan v. Phillips, 8 A. & E. 745; Devaux v. Steinheller, 6 Bing. N. C. 84.
ON THE INADMISSIBILITY OF EXTRINSIC EVIDENCE TO CONTRADICT OR VARY WRITTEN EVIDENCE.
WHEN written evidence is primary, and not merely substitutionary in character-or, in other words, when it is made by statute or common law the best evidence -it is clear that the principle of a fundamental rule would be destroyed if a party were allowed to contradict such evidence, or to vary it substantially by the introduction of oral or other extrinsic evidence.
Therefore it is an established and inflexible rule that
Extrinsic evidence is inadmissible to contradict, add to, or subtract from, or vary, the terms of a written instrument.
Thus, where a contract is required by statute to be in writing, or where it has been reduced to writing by the voluntary act of the parties to it; as long as the writing is producible, it is the only admissible evidence of the terms of the contract. Neither party can show that, before the contract was reduced to writing, the parties agreed to a term which does not appear in the writing, and which is clearly repugnant to its provisions; for all such antecedent oral terms are merged in the express language of the writing. Similarly, neither party can show that, after the contract was reduced to writing, the parties agreed to a new term, which is also repugnant to the terms of the written agreement, unless such subsequent agreement amount
to an entire or partial dissolution of the former contract, or to a new contract founded on a new consideration.
Accordingly, in Goss v. Lord Nugent, Lord Denman said:
"By the general rule of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time that it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify, the written contract; but, after the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement."
The general rule, therefore, operates thus:-A contract, which is valid without writing, will, if put into writing, be construed strictly according to the terms of such writing. No new term can be annexed to it, as impliedly contained in it before it was reduced into writing, or while it was being reduced into writing, if such parol term contradict or vary a written term; but the written contract may be wholly or partially waived before breach, and a new written or verbal contract substituted for the erased term of the original contract; and then the residue of the original contract will be construed cumulatively with the new subsequent contract. Thus, there will be no contradiction or variance of the original contract, but merely, first, the erasure of a term, and, secondly, not the insertion,
15 B. & Ad. 64.