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Besides, if a manor extends into two parishes, how shall the The King lord be rated, and where? Where shall it be collected, or v .

VANDEVALD. what remedy will there be for non-payment? How will you distrain, or commit for want of distress, when the lord lives out of the county ?- This doctrine, now set up, will in consequence extend to ground-rents; and if to those, then to all other rents whatsoever, which is a matter of the utmost importance.

By MANSFIELD, C. J.--As this is a general question, we will think of it; but, for myself, I have not the least doubt.

* Afterwards, in the same Term, the Chief Justice delivered, *214 ] the opinion of the Court, that there was no colour for rating the manor in question; that it would introduce a long train of absurdities, which had been stated at the bar; that there was therefore no occasion to go over the matter again; but that the rate must be quashed ().

(i) “ The case of quit-rents goes on the objection of double rating the same property in the hands of the landlord as well

as the tenant:” Per Lord Kenyon, in
R. V. Alderbury, 1 East, 534; and see
Lowndes v. Horne, post, 1252.

sickness at the

ChistCHURCH v. Bethnal GREEN.

S. C. Burr. Sett. Ca. 494. MOTION to quash an order of Sessions, which stated, that Absence through "E. S., 24th August, 1757, was hired for a year by a person

"end of a year, " in the parish of N., and staid in that service till 7th August no obstruction “ following; and then was seised with fits; upon which she to the servant's “ was sent to the hospital by her master's desire; and she looked settlement. “ upon her contract as discharged; all her wages being paid, “ and another servant hired in her stead," and upon this the Sessions adjudged her settled with her master at N. Norton objected to this, as not being a complete service.

Aston and Stow shewed cause; and insisted, that when a servant is under the visitation of God, he shall be taken as all the while in the service of his master; King and Islip, Str. 423; and that absence for a reasonable cause will not defeat a settlement; Ibid. and King and Sandwich, Str. 1232.

Norton, Morton, and Lane, supported the objection, by observing, that the absence in the King and Islip was in the middle of the year, and therefore was purged by the master's receiving his servant again; but here the absence was at the end of the year, which cannot be purged at all; Seaford and Castlechurch, Str. 1022. And if any absence be permitted at the end of the year, where shall we stop?

MANSFIELD, C. J.-This case is one of the many instances of the bad policy of our poor-law. Here has been a question litigated before two justices, then the Sessions, and lastly this Court; which, before a plain man of sense, would have made *no question at all. A service without fraud or collusion, in [ *215 ] the same manner as servants bonâ fide would otherwise have

BETHNAL-
GREEN.

Christchurch served their masters, if no poor-laws existed, is a good service

to gain a settlement. If the act of God prevents a servant from performing his contract, this is incident to humanity, and is necessarily a case exempted. The master is not at liberty to turn his servant out of doors, to subtract wages, to deny food or necessaries, on account of sickness. Nor can I frame a distinction between the visitation of God, happening at the beginning, in the middle, or at the end of the year.

DENNISON, J.-This is the weakest case to avoid a settlement I ever met with. Where absence is occasioned by the act of God, it is not the return back to the service that gains the settlement: supposing the pauper had been bed-rid in her master's house, this would certainly gain a settlement. Here the master for his own convenience desires her to remove. She must still be considered as his servant.

Foster, J.—The relation between master and servant remained to the end of the year.

WILMOT, J.-The distinction is, that if a servant is absent without a reasonable cause or consent of the master, in the middle of the year, the offence may be purged by the master's taking him again, which cannot be done upon such absence, at the end of the year. But if he be absent for a reasonable cause, in the middle or at the end of a year, it is still a settlement. Rule for quashing the order of Sessions was discharged, per

tot. Cur.'(k).

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JOHNSON v. Smith. (Vide p. 207.)
LORD MANSFIELD, C. J., delivered the judgment of the
Court.- This demurrer of the plaintiff can only be supported

on two grounds. 1st. For that the matter of the rejoinder is [ *216 ) not *relevant: or 2ndly, If relevant, that proof cannot be ad

mitted of it. Latitat is the 1st. The first depends on the statute 21 Jac. 1, c. 16. By true commence- the former statutes of limitation, the time was to run from the ment of actions brought by bill

teste of the writ; but this being found uncertain, the Legisof Middlesex, lature, in the present act, avoided mentioning any set form; within the. and left it in the discretion of the Courts, to determine what is meaning of the statute of limi

nie the commencement of the suit; the prohibition, being couched tations. in these words---“ Such actions shall be commenced and sued,

“ within, &c. and not after.” The moment that the six years (in the present case) are past, the prohibition immediately attaches. The words of the statute in sect. 3, (the prohibitory clause) are general; the exceptions in sect. 4, are equally general; the words “ plaint, writ, or bill,” being inserted with a reference to the preceding clause; therefore no argument can be drawn, as if the law meant to leave open the door to suits

u.

SMITH.

by bill, and to shut it. only against those by original. What Johnson ever is the commencement of the suit is the subject of this prohibition; if therefore taking out the writ be the act of commencing the suit, the Legislature has prohibited that, after a delay of six years. And that this is the act of commencement, may be shewn from a clause in the statute itself, sect 5, which is decisive. Tender of amends in trespass may be made before action brought. Now, can it be supposed, that, after amends tendered, a latitat may be sued out, and by an implied relation back to an antedated bill of Middlesex, the express words of the statute should be virtually repealed, by implication. It has also been settled, first, in Styl. 156, then, in 1 Sid. 53, long after the statute of Jac. 1, that a latitat should be looked on as a commencement of the suit, so as to avoid the statute of limitations. And the same was lately held in Whitaker and Henderson, 21 Geo. 2(1). If then latitats are allowed by the equity of the statute to be a commencement, in order to save the time of limitation; by equal equity, a defendant may be allowed to aver, that this equitable commencement came too late. In this cause, the whole dispute is between strangers to the transaction, suing and defending in auter droit. This shews *the [ *217 ] necessity of a statute of limitations, and is an argument, that it ought to be construed liberally. Therefore we are all of opinion, that the matter of the rejoinder is sufficiently relevant; and that, if it appears that the latitat was sued out after six years from the undertaking, it is within the statute of limitations.

2nd. The second point turns upon this question: Whether the real time of suing out a writ can be averred, against the date of the teste? The Court will not endure, that a mere The true time of form and fiction of law should prejudice the true justice of the suing

tat may be avercase (m). Above one hundred and fifty years ago, the Court red, against the began to distinguish the real time from the fictitious, when teste of the writ. material to the justice of the cause. 17 Jac. 1, Pigott and Rogers, Cro. Jac. 561. So Harrison's Case, cited 3 Keb. 213. And in Bilton and Jonson, 19 Car. 2, Raym. 161, 2 Keb. 198; where it is said, that a relation shall not work a wrong. Same distinction taken in Hanway and Merry, 1 Vent. 28, 21 Car. 2,

a lati

(1) In addition to the cases cited in the text here and ante, p. 208, see Hollister v. Coul son, 1 Stra. 550 ; Crokatt v. Jones, 2 Stra. 736, 2 Lord Raym. 1441; Hardyman v. Whitaker, 2 East, 573, n. (a); Morris v. Harwood, post, 312, 320, So a capias quare clausum fregit, in C. P.; Leader v. Moron, post, 925 ; Brown v. Babington, 2 Lord Raym. 880; Karver v. James, Willes, 255, Bull. N. P. 150, 7 Mod. 348: in which case it is said, that where continued process is replied to bar the statute of limitations, it must be alleged, that the first writ was returned. S. P. Harris q. t. v. Wool. ford, 6 T. R. 617; Stanway q. 1. v. Perry, 2 Bos. & P. 157; Harrington v. Taylor,

15 East, 378: see also Markland v. Lead-
beater, post, 1131. The suing out a latitat
or a quare cl. fr. may sometimes be con-
sidered as the commencement of the suit;
and sometimes only as process to bring the
defendant into Court: as to which see
Wood v. Newton, 1 Wils. 147; Foster v.
Bonner, 2 Cowp. 454; Ward v. Honey-
wood, 1 Doug. 61; Swancot v. Westgarth,
4 East, 75; Page v. Bauer, 4 B. & A.
350, per Bayley, J.; Gregory v. Hurrill,
3 Brod. & B. 212; 8 J. B. Moore, 189;
and 2 Wms. Saund. 1, n. (1); and as to
pleading the statute of limitations, and re-
plying thereto, Id. 62 c, n. (6).

(m) S. P. 1 Cowp. 177.

SMITI.

JOHNSON and Chancy and Rutter, 3 Keb. 213, 25 Car. 2. In Watts

and Baker, 8 Car. 1, Cro. Car. 264, in the case of a tender under this very statute, it was held to be too late, because after an arrest on a latitat; which implies, that a tender merely after the teste would not be too late, and shews the teste not to be conclusive in case of the statute of limitations. In Walburgh and Saltonstall, 32 Car. 2, Sir T. Jones, 149, the truth of the fact is set up against the teste of a writ; and a distinction made between veritas legis and veritas facti; S.C.1 Ventr.362, Pemberton, C. J., said, plaintiff may declare that a writ was sued out 21st January, bearing teste 28th November (n). AgainMany penal statutes give powers of bringing actions within a limited time. And notwithstanding the doubt in 4 Mod. 129,

a latitat is now held to be a sufficient commencement of the [*218 ] action. But, if the latitude of construction now *contended for

be allowed, penal statutes would be rendered more penal by
suing out writs two, three, or four months after the time limited
by Parliament. Thus the stat. 23 Hen. 6, gives a penalty to
a burgess elected, but not duly returned to Parliament, so as
he sues within three months, and afterwards to be recovered
by other persons. Suppose many writs, sued out in the long
vacation, all tested the last day of Trinity Term; how shall
we know who has the priority, if the true time cannot be aver-
red? The same reasoning may be applied to the game-law,
By statute 5 W. & M. c. 21, s. 4, to prevent frauds on the re-
venue, the officer is required to enter the very day that any
writ or process is signed. If that very day cannot be shewn,
the statute is absurd. I have looked into all the cases urged
on the other side, and find nothing material or conclusive. The
arguments urged are drawn from rules and maxims similar in
sound, but not in meaning. I allow the maxim in Plowd. 491,
that records shall not be averred to be antedated, &c. so as to
discredit the officer; but there is no discredit to the officer, no
imputation of irregularity in averring that, by custom, latitats
sued out in vacation are tested in the preceding Term. If the
averment was intended to invalidate the latitat, it would not then
be admitted. The case of Lee and Johnson, Lutw. 326 (potius
Aldworth and Hutchinson, Lutw. 330), was never argued, and
the reporter passes a strong censure upon it. “ And so it ap-
“ pears (if a party be estopped to allege the true time of suing
“ out a writ), that in judgment of law a covenant may be broke,
“ where reverd and in facto it was not broke. Quod nota."
It was said in the argument, that, in Hoar and Gates, Lord
Hardwicke was against allowing the averment. This, if true,
would be sufficient to shake any opinion of mine. But Lord
Hardwicke has assured me, that he inclined to the opinion of
Page and Lee against Probyn; who alone was against the aver-

ment. Lord Hardwicke had not formed any settled opinion. [ *219 ] *On the whole, we are all of opinion, that the true time of suing

(n) S. P. Hart v. Weston, post, 683.-See post, 925.

out a writ may be averred against the teste; and therefore judgment must be for the defendant(o).

JOHNSON

SMITH.

(0) See Morris v. Harwood, post, 320; more fully reported in 3 Burr. 1241. The Court will take notice in pleading of the

issuing of a bill of Middlesex on a day in
vacation; Harrington v. Taylor, 15 East,
378.

him refund it

Moses v. MACPHERLAN.

S. C., 2 Burr. 1005. MOSES had four notes of one Chapman Jacob, dated 11th If one recovers July, 1757, value 30s. each. Macpherlan, 7th November, 1758, money mala fide prevailed upon Moses to indorse these notes to him, upon an férior Court, in

by suit in an inexpress written agreement to indemnify Moses against all con- debitatus assequences of such indorsement, and that no suit should be sumpsit will lie

in B. R. to make brought against Moses the indorser, but only against Jacob the hi drawer. Notwithstanding which, Macpherlan brought four back. actions in the Court of Conscience upon these very notes against Moses; and, upon trial of the first, the commissioners refused to go into any evidence of this agreement; whereupon the plaintiff recovered, and the defendant paid in the whole 6l. And now Moses, the defendant below, brought indebitatus assumpsit against Macpherlan, the plaintiff below, for money had and received to his use, and obtained a verdict for 61., subject to the opinion of this Court.,

Morton (for defendant Macpherlan) argued, that indebitatus assumpsit would not lie upon a judgment recovered in an inferior court of a final jurisdiction; and cited Cro. Jac. 218; and 1 Bulstr. 152: The remedy in this case being a special action on the case for breach of the agreement.

Norton, contra, that this action would well lie, the remedy by action on assumpsit being of the most liberal and beneficial kind.

On the argument, Mansfield, C. J., doubted if the action would lie, after a judgment in the Court of Conscience; but wished to extend this remedial action as far as might be : To which Dennison, J., agreed, and inclined strongly that the action would lie. Foster, J., was afraid of the consequences of overhauling the judgment of a court of a competent * jurisdic-' *220 l tion. Wilmot, J., was clear that the action would not lie; because this action always arises from a contract of re-payment, implied by law; and it would be absurd, if the law were to raise an implication in one Court, contrary to its own express judgment in another Court. He compared this action to the title de solutione indebiti, Inst. 3, 28, s. 6; and de condictione indebiti in Cod. and Dig. (p) in which there was always an exception causæ judicati; and this reason given for it, Ne actiones resuscitentur. But afterwards,

Lord MANSFIELD, C. J., delivered the opinion of the Court -It has been objected to this action: 1st, That debt will not

(p) L. IV, tit. 5. "Pecunia per errorem, non ex causâ judicati, solutæ esse repe

titionem condictionis non ambigitur."

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