Provision is made as to the effect of an acknowledgment or part payment by R.S.O. 1914, c. 75, s. 54 to 59, as follows:

54. Where an acknowldgment in writing, signed by the principal party or his agent, is made by a person liable upon an indenture, specialty or recognizance, or where an acknowledgment is made by such person by part payment, or part satisfaction, on account of any principal or interest due on such indenture, specialty or recognizance, the person entitled may bring an action for the money remaining unpaid and so acknowledged to be due, within twenty years, or, in the cases mentioned in clause (k) of subsection 1 of section 49, within ten years after such acknowledgment in writing, or part payment, or part satisfaction, or where the person entitled is, at the time of the acknowledgment under disability as aforesaid, or the person making the acknowledgment is, at the time of making the same, out of Ontario, then within twenty years, or in the cases aforesaid within ten years, after the disability has ceased, or the person has returned, as the case may be.

55.- (1) No acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take out of the operation of this Part (l), any case falling within its provisions respecting actions

(a) Of account and upon the case,

(b) On simple contract or of debt grounded upon any lending or contract without specialty, and

(c) Of debt for arrears of rent, or to deprive any party of the benefit thereof, unless such acknowledgment or promise is made or contained by or in some writing signed by the party chargeable thereby, or by his agent duly authorized to make such acknowledgment or promise.

(2) Nothing in this section shall alter, take away or lessen the effect of any payment of any principal or interest by any person.

56. Where there are two or more joint debtors or joint contractors, or joint obligors, or covenantors, or executors or administrators of any debtor or contractor, no such joint debtor, joint contractor, joint obligor or covenantor or executor or administrator shall lose the benefit of this Act so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed, or by reason of any payment of any principal or interest made, by any other or others of them.

57. In actions commenced against two or more such joint debtors, joint contractors, executors or administrators, if it appears at the trial or otherwise that the plaintiff, though barred by this Act, as to one or more of such joint debtors, joint contractors, or executors or administrators is nevertheless entitled to recover against any other or others of the defendants by virtue of a new acknowledgment, promise or payment, judgment shall be given for the plaintiff as to the defendant or defendants against whom he recovers, and for the other defendant or defendants against the plaintiff.

58. No endorsement or memorandum of any payment written or made upon any promissory note, bill of exchange, or other writing, by or on behalf of the person to whom the payment has been made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of this Act.

59. This Part shall apply to the case of any claim of the nature hereinbefore mentioned, alleged by way of set-off on the part of any defendant.

S. 54 relates to action upon an indenture, specialty or recognizance. The special provision as to clause (k) of sub-s. 1 of s. 49 refers to an amendment made in the Ontario statute

(l) This "part" includes ss. 49 to 59 of the statute.

(m) 1894 (m). In other respects s. 54 is derived from the English statute 3 & 4 W. 4, c. 42, s. 5.

S. 55, relating to actions of account, on simple contract or of debt without specialty, is derived from the English statute 9 G. 4, c. 14, s. 1.

S. 56 is derived from the English statute 19 & 20 V. c. 97, s. 14.

The acknowledgment of a simple contract debt to take the case out of the statute 21 Jac. 1, c. 16, must be an acknowledgment from which the law will imply a promise to pay (so as to give rise to a new cause of action), and part payment, to have the same effect, must be such a payment that a like promise to pay the remainder may be implied and must be a payment in discharge pro tanto of the debt (n). The acknowledgment by writing or part payment under s. 54, supra, however need not be such that a promise to pay is implied, and the acknowledgment could not operate as giving rise to a new cause of action, because the action in which the acknowledgment is to be operative must be maintained on the original obligation, and on that only (o).

An acknowledgment of a simple contract debt must be made to the creditor or his agent, but it has been held that an acknowledgment of indebtedness made in a letter written after the creditor's death to the person who is entitled to administer the creditor's estate, and who after the receipt of the letter is appointed administrator, is sufficient (p). In the case of a specialty debt an acknowledgment to a third party is sufficient (q).

(m) See Sec. 261, supra.

(n) Tanner v. Smart, 1827, 6 B. & C. 603, 16 R.C. 160; Stamford, Spalding and Boston Banking Co. v. Smith, [1892] 1 Q.B. 765, 16 R.C. 165.

(o) Roddam v. Morley, 1857, 1 DeG. & J. 1, 16 R.C. 273. (p) Robertson v. Burrill, 1895, 22 O.A.R. 356. (q) Goodman v. Boyes, 1890, 17 O.A.R. 528.

S. 54 does not expressly require the payment to be made by the person liable or his agent. If such a qualification of the statute is to be implied, the assignee of the equity of redemption who assumes the mortgage is sufficiently an agent of the mortgagor for that purpose (r).

The payment of interest on a specialty debt by a tenant for life is sufficient to create a new starting point under the statute as against the remaindermen (s). The same principle applies in the case of payment of interest on a simple contract debt (t).

The receipt of rents by a mortgagee in possession is not a payment by the mortgagor or any person on his behalf so as to keep alive the right of action on the covenant, unless by agreement between the parties rents are to be set off against money due on the mortgage (u).

A written acknowledgment or a payment by one of two or more joint debtors or joint covenantors will not deprive the other or others of them of the benefit of the statute (v).

(r) Forsyth v. Bristowe, 1853, 8 Exch. 716; Dibb v. Walker, [1893] 2 Ch. 429. As to payment by a receiver appointed by the mortgagee pursuant to a power contained in the mortgage, see In re Hale, Lilley v. Foad, [1899] 2 Ch. 107.

(s) Roddam v. Morley, 1857, 1 DeG. & J. 1, 16 R.C. 273; Dibb v. Walker, supra.

(t) In re Hollingshead, Hollingshead v. Webster, 1888, 37 Ch.D. 651.

(u) Cockburn v. Edwards, 1881, 18 Ch.D. 449; Stark v. Somer-ville, 1917, 40 O.L.R. 374, affirmed, 1918, 41 O.L.R. 591, 41 D.L.R. 496. See also Harlock v. Ashberry, 1882, 19 Ch.D. 539, and other cases cited on the question of part payment under s. 24 (recovery of money out of land) and s. 23 (action to recover land) in Sec. Sec. 265 and 273.

(v) R.S.O. 1914, c. 75, s. 56, supra; Paxton v. Smith, 1889, 18 O.R. 178. The provision just referred to applies, however, only to acknowledgment or payment under ss. 54 and 55, not to acknowledgment or payment under s. 24 (Sec. 265, infra) or under ss. 14 and 23 (Sec. Sec. 272, 273, infra). Lewin v. Wilson, 1886, 11 App. Cas. 639, at were introduced into the Ontario statute in 1887 (x) and were apparently intended to confirm the construction placed upon the statute in Ontario, namely, that a personal action on the covenant was governed by the predecessor of s. 49 (y) and that it was only an action to recover money out of the land that was governed by s. 24 (z). In England, on the contrary, it has been held that the provision of the English statute corresponding to s. 24 applies also to an action on the covenant (a).