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*Bisnop, for defendant.—[I] shall not enter into the previous Stevens objections. The main question intended to be settled, is of Ev"'Ng,
great and general importance. It must for ever arise, unless « v'
where a man dies the night before a rate is made. By sect. 4, of stat. 43 Eliz. [c. 2,] it is sufficiently implied, that assets are liable.
Dennison, J., [absente Lord Mansfield).—The question intended to be brought before the Court is stated, and is only the latter one, concerning the levy of the rate on executors or administrators. Strange, that it never was brought before the Court before. As to myself, whatever the practice may be in the country, I take it, that if a person is rated under stat. 43 Eliz., wherein a particular method is prescribed to recover that rate, you cannot make use of .any other. No action of debt will lie for a poor's rate. Consider the nature of the remedy given by the act of Parliament. You are to distrain by warrant. What? The goods of the offender. This shews, 1st, That non-payment is an offence, not a debt: 2dly, What the goods are, which are so distrainable, via. those of the offender. Well—What authority have we, by law, over the goods of the representatives? None at all. We can't consider inconveniences that may be suggested; but the mere words of the law which gives the remedy. As at pretent advised, I think the action will he. Foster, J., absent.
Wilmot, J.—I have not the least doubt imaginable. Though it is not stated in the case, that a demand (s) was made of the administrator; yet it is stated in the warrant. But no summons appears to have issued; and I think it was necessary to convene the administrator before the justice, before a warrant could legally issue to distrain. Had a warrant issued regularly before the death of Vesey, it migb; have been doubtful, whether necessary to convene the representative. Similar to a fieri facias, which may be executed after the death, if issued before; whereas, otherwise, a scire facias must issue. But this warrant is the first that issued. * As to the principal question, [ *286 ] as at present advised, I doubt, whether the charge absolutely dies with the person. The point was never solemnly determined. But in Waliis, Administrator, v. Hewit, Sittings post Hil. 5 Geo. 2, coram Eyre, C. J., the same question came on. There was not only a demand against the intestate, but also a warrant of distress, issued before his death. Eyre, C. J., at Nisi prius, thought, that a levy could not be made on the goods in the administrator's hands, without summoning him to shew cause. A case was made, but I can't learn, that it was ever argued in the Common Pleas. However, in the present case, it is contrary to all reason, even supposing it a debt, that the administrator should be charged to pay it without summons. He may have a judgment debt of his own, which will cover the
(i) Sec Hurreltv. Wink, 2 B. Mo. 417, 8 Taunt. 369, and Milwardv. Coffin, post, 1330. VOL. I. Q
whole of the assets. Shall he be stripped of it, without even hearing what he has to say (t)?
Posted delivered to the plaintiff.
(0 I have not been able to meet with P. L. 221 (ed. 1814), and 4 BunVita. any other case on this point, which there- 116 (ed. 1820). fore remains undecided. See 1 Nolan's
Statute of limit ations extends to persons in Scotland.
King V. Walker.
ASSUMPSIT. Plea, non assumpsit infra sex annos. Replication, that the plaintiff was resident in foreign parts out of the kingdom of England, ri«..at Glasgow in Scotland; and therefore could not bring his action sooner. Demurrer, and joinder in demurrer.
Morton, for the defendant, observed, that the exception in the statute of limitations, 21 Jac. 1, c. 16, in favour of absent plaintiffs, says expressly, that they must be persons beyond the seas.—That, till the Union of the Crowns under Jac. 1, the constant language of the Legislature was, persons oulof the realm. It was altered on that occasion, when the whole island came under the government of one Prince; and the reason holds stronger now, when not only the Crowns, but also the kingdoms are united.
Wedderburn, for the plaintiff.—The question is, Whether persons out of the jurisdiction of the Courts of this country, [ *287 ] *though not literally beyond the seas, or out of the King* subjection, are not entitled to the same benefit. The statute of non-claim does not affect persons in Scotland. In Sir Robert Brooke's reading on stat. 32 Hen. 8, wherever the statute says, out of the realm, he uses in his comment the expression, beyond the seas. This and many other instances shew, that these expressions have usually (though inaccurately) been used as synonymous terms. It has been questioned, whether Scot* bills of exchange are inland or foreign bills, and been determined by Ryder, Chief Justice at Guildhall, that they were foreign bills (»).
Dennison, J. (absente Lord Mansfield).—This is a new experiment, and in the case of a positive law. The statutes 21 Jac. 1, and 4 & 5 Anne(«), are both express, that the party to be excused must be beyond the seas. Here the plaintiff pleads, that he was in foreign parts, viz. in Scotland. What does be mean by foreign parts? He must be beyond the seas. That is the old and true expression. Before the Union, England was an island of itself; since the Union, Scotland is made s part of it.
Foster, J., absent.
Wilmot, J.—This is a very clear case. The statute of limit.itions ought to be construed liberally. I think it a noble beneficial act. Interest Reipubiicce ut sit finis litium. There The Kino
see 55 G. 3, c. 184, ss. 23, 25, 29, Sched. P. 1. (u) C. 1«, «• "•
is no such kingdom as England now. Plaintiff, therefore, while w "•
in Scotland, was not out of this realm. Besides, that is not > v ''
now the phrase: [the] Legislature, by altering it to beyond the seas
at such a critical juncture, seem to have pointed at this very
case, of dwelling in Scotland. It is a great question, and very
doubtful, whether the statute of non-claim does not now extend
to residents in Scotland. As at present advised, I should rather
think it does. It is true, that since the Union, a writ of tie
exeas regno has been issued from the Court of Chancery to
prevent a man's going to Scotland; Done's Case, 1 P. W.
263 (w). But the condition of the recognizance was a special
one; not to go out of this realm, or to Scotland. Had these
•words been omitted, going to Scotland would not have for- [ *288 ]
feited the recognizance (x).
Judgment for the defendant, nisi.
(to) But see Hunter v. Maccraij, Ca. or any place in Ireland, is beyond the seas,
temp. Talb. 196, and 15 Vin. Abr. Ne within the meaning of 21 Jac. 1; Anon,
exeas Regno (B). See also Baker v. Du- 1 Show. 91; Smith v. Hill, 1 Wils. 134,
mareique, 2 Atk. 66; Bernal v. Marquis S. P. And see Strithorit v. Graeme, post,
of Donegal, 11 Ves. Jun. 43. 723.
(x) So Holt, C. J., held, that Dublin,
Lessee of Luoas V. Fulford.
■S. C. 2 Burr. 1177.
IN ejectment, the plaintiff offered to give in evidence, an exa- Close copies of mined copy of a bill in Chancery, contained in two close sheets proceedings in of paper, each stamped with treble sixpenny stamps; but the De giren in evimatter was equal in quantity to forty office copy sheets: and dence in another also, an examined copy of an amended bill, in three close Cour'' "1*out sheets, each stamped with treble sixpenny stamps, the matter common stamps. whereof would have extended to sixty office sheets. By the Stamp Acts, 9 & 10 W. 3, c. 25, sect. 64, &c. every copy of proceedings in Chancery is charged with a duty of three penny stamps on each sheet; otherwise, cannot be given in evidence. And it is also provided, that all proceedings in any Court shall be written in the usual manner (y). Verdict for the plaintiff, subject to the opinion of B. R. whether or no this evidence ought to have been admitted.
Stowe, for the plaintiff, cited the King and Bishop of Chester, 8 Mod. ; and argued, that the evidence ought to have been received; because this was not a copy made out by the clerks of the Court, but delivered from attorney to client. ThaCthe act does not define the number of words that shall be in a sheet, but leaves it to usage; and this is the usual practice between attorney and client.
(y) The duties are now regulated by stamped sheet of paper, an office copy so 55 G. 3, c. 184, Sched. P. II. 3. It seems written would be irregular; Champneys v. that where it has not been the practice to Hamlin, 12 East, 294. write such copies on both sides of the
Locas Aston, for the defendant, insisted, that the revenue bong
_ "• concerned, the statute must be construed strictly. That no
FULFOBD. .11 l in.
v.—.—v copy is properly such a one as the statute meant, but an oftce
copy; and that it was time that a practice contrary to law, if any such there was, should be abolished. * Ocq T Lord Mansfield, C. J.—The whole question is, whether it L *°*' J is necessary to give office copies in evidence in all * Courts whatsoever. In causes depending before the Court of Chancery, office copies of proceedings therein are the very records of the Court, and prove themselves. No other copy can be there produced. In other Courts, even office copies of Chancery proceedings must be proved to be genuine, by parol evidence. Two clauses of the Stamp Acts are the only ones to be considered. It must first be observed, that when stamps were originally imposed, there were two kinds of copies in common use:—one an office copy, to be made use of in the Court to which the cause belonged. This contained only > stated number of words, by immemorial custom, probably introduced to enlarge the fees of the officers:—the other a common close copy, to be used, when proved, in any other Court or place. Then comes the act, and lays (in one clause) a duty upon every sheet of copy; and the next clause directs all proceedings in any Court to he written in the same manner as before. Is this latter clause a legislative provision, that office copies only shall be used in evidence, where they were not used before? It is not to be conceived, that in order to raise so small a duty (for originally it was only Id. per sheet), the Legislature intended to put the parties to the expence of 60/. to take office copies, merely to give in evidence. The Stamp Acts have not always been construed strictly. It has been determined, that the stamp-duties do not extend to any proceedings before either House of Parliament.
It is a question of pretty general importance, and therefore proper to be well considered, before it is finally determined. But, for my own part, I have no doubt at present.
N. B—" It appeared, that some cautious practicers had been "used to stamp their close copies with as many stamp; * "would have been required to an office copy."
Afterwards, in Trinity Term, the Court declared, it was too clear a question to enter into again, and therefore ordered the postea to be delivered to the plaintifF(a).
(*) Lady Dartmouth v. Roberts, 16 East, 33-1 j Salter v. Turner, 2 Camp. 87; #«%*»" son v. Willis, 3 Camp. 401.
Jans qui tain v. Hutton.
W INN moved to set aside proceedings for irregularity. Action on a penal statute. Plaintiff had taken out five rules for time to declare (a), and served none of them on the defendant, till the last was taken out; and then served them altogether, and, at the same time, also delivered a declaration to the defendant. It was urged, that the rules, not being served in time, were expired; and that therefore the defendant was out of Court, and could not be served with a declaration. But, per Cur.—You might have signed a nonpros, for not declaring in time (b); but, having omitted that, and the plaintiff having now served his rules, he redeems his irregularity, and you can
not now take advantage of it.
(a) If the plaintiff be not ready to declare, before the end of the next Term, after the return of process, he may obtain a side-bar, or Treasury rule for time to declare, until the first day of the ensuing Term: and if he be then unprepared, he may obtain rules for further time to declare from the beginning to the end of the Term, and from toe end of one Term to the beginning of another, alternately, as often as may be necessary. But after several rules have been obtained, the Courts will make a peremptory one for him to declare, before the end of the Term in which the motion is made. And in C. P. where he does not declare, after having obtained time for that purpose, the defendant may sign judgment of non. pros. without giving a rule to declare; Towers v. Powel, 1 H. Bla. 87—Tidd's Pr. 426 (cd. 1821); and see post, 759.
(4) " Upon all process returnable the
Though a rule
first, or any other return in any Term,
Lessee of Methold V. Noright.
_A-SHURST moved (on the authority of Lessee of Hollings Service of ejectand Bunch, Hil. 1 Geo. 3), that service of a declaration in TMo6u'£am^hebe ejectmenc at the house of the tenant in possession, on 13th of mTMde g0^ by a May last past, might be good service; it having formerly been subsequent rule usual to grant such rules, with respect only to future service, of Court, and not with any retrospect. But that, in the case relied upon, this rule was first altered in the King's Bench, it having before been the course of Common Pleas (c).
Rule to shew cause; and that service of this rule at the house might be good service. N. B.—This motion went off afterwards, upon terms of compromise (d).
(c) Fenn v. Dean, Barnes, 192.
(d) See Gulliver v. rfagttaff, post, 317.