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TMI Blog1852 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff's Bombay firm. 5. The Plaintiff demurred to this rejoinder, and after argument the demurrer was overruled, and judgment pronounced for the Defendant. 6. By the notes of Chief Justice Perry, of the reasons for overruling the demurrer, it appears, that the only question argued before the Court was the validity of the rejoinder. 7. The questions raised during the argument before this Committee were, 8. First. Whether the English Statute of Limitations, 21 James I., c. 16, applies to those parts of India which are subject to the Government of the East India Company. 9. Second. If the Statute does apply, whether, as it appears by the record that the parties are Hindoos, the plea of the Statute of Limitations is a good plea. 10. Third. Whether the replication sets forth matter which shows the Plaintiff to have resided, during the period of limitation, in parts beyond the seas, within the meaning of the saving in the 7th section of the Statute. 11. Fourth. Whether the rejoinder presents an answer in law to the replication. 12. During the argument of the objection to the plea, upon the ground of its being inadmissible in a suit between Hindoos, a doubt wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d extend to India, either without the exception or with a different sense to be put upon it, still the jurisdiction of the Court of King's Bench was not excluded. The case was decided upon the ground, that at all events the jurisdiction of the Court of King's Bench was not excluded; and Lord Ellenborough said, Assuming that the Statute and Charter referred to had given jurisdiction to the Indian Courts, and that the Courts had adopted the Statutes of Limitation, still those Statutes could only have the effect of barring the remedy in those Courts, but did not extinguish the right. 17. The extent of the authority of this case is merely that Lord Ellenborough did not express any doubt of the competency of the Courts in India to adopt the Statute. 18. It is abundantly clear, that since 1811 the Statute has been adopted in India, and made the foundation of judgments by the Supreme Courts there, and that adoption has been recognised and acted upon by this jurisdiction, in the case of The East India Company v. Oditchurn Paul, reported in the 5th volume of Moore's Ind. App. Cases, p. 43, is which case the Statute was pleaded on the part of the East India Company, whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee considers that such application of the Statute ought not now to be questioned, whatever doubts might have originally existed on the subject. 22. The Statute being applicable to India, it becomes necessary to consider, whether a residence in India, but out of the territories under the government of the East India Company, is, in legal import, a residency beyond the seas within the meaning of the Statute, 21 James I, c. 16, sec 7. 23. These words beyond the seas are of extensive application in the law, many ancient rights being saved by the Common Law to persons beyond the seas; it is, therefore, of considerable importance to ascertain what has been deemed to be the legal import and meaning of them, because, if it shall appear that they have long been used, in a sense which may not improperly be called technical, and have been judicially construed to have a certain meaning, and have been adopted by the Legislature in that sense, long prior to the Statute, 21 James I., c. 16, the rule of construction of Statutes will require, that the words in the Statute should be construed according to the sense in which they had been so previously used, although that sense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a fine at the Common Law did not bind a stranger that was within age, in prison or beyond the seas Further, Littleton, in chapter vii., on Continuall Claime, section 439, says, in reference to excuse for Continuall Claime, In the same manner it seemeth, that where a man is out of the realm, and the disseizor death seized, that such descent shall not hurt the disseizee, but for that he could not make continuall claime, it seems to them, that when he commeth into England he may enter. 30. It will be observed, that in this section, Littleton uses the words, out of the realm, and commeth into England, in reference to rights which had been preserved to persons who should, in technical language, be beyond the seas. And Lord Coke, in commenting upon this section, (260. b) says, Hors du royaulme (id est), extra regnum; as much as to say, as out of the power of the King of England as of his crowne of England; for, if a man be upon the sea of England, he is within the kingdom or realm of England, and within the ligeance of the King of England, as of his crowne of England. And yet altum mare is out of the jurisdiction of the common law. He afterwards says, And note, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff replied, that he was at that time in Scotland the whole year and a day, without that he was in England. And it was held, that Scotland being another land and other realm by itself, the replication was sufficient. 35. The right of entry of a disseizee, in the absence of continual claim, being by the Common Law saved by an absence beyond the seas, this case shows, that Scotland, being out of the realm, was within the saving being beyond the seas. Further, the case itself referred to a saving in a Statute expressed in the words beyond the seas. But Fitzherbert, by reporting the case under the head of Continually Calme et non Claim, evidently meant, that a residence in Scotland would also be within a Common law saving expressed in the same words. 36. Lord Coke's Commentaries, 260. a and 260. b, upon Littleton secs. 439 and 440, will be found quite confirmatory of the principle of the decision before mentioned. 37. The Statute of the 32 Hen. VIII., c. 2, is immediately in connection with the 21 James I., c. 16. That Statute first required, that all real actions should be brought within a definite number of years by all persons within the realm, and saved the reme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, which was the old and true expression; and added, that before the Union, England was an island of itself; since the Union, Scotland is made part of it. From the observations of Wilmot, Justice, it would seem that the word Island is stated by mistake of the reporter, instead of kingdom. Wilmot, Justice, said, There is no such kingdom as England now. Plaintiff, therefore, while in Scotland, was not out of the realm. Besides, that is not now the phrase : the Legislature, by altering it to beyond the seas, at such a critical juncture, seems to have pointed at this (sic) of dwelling in Scotland. 42. The alteration here spoken of, perhaps referred to the adoption of the words beyond the seas, in this Statute, while the words in 32 Hen. VIII., c. 2, were out of the realm. 43. The experiment referred to by Mr. Justice Dennison was the attempt to make the words, out of the jurisdiction of the Court, synonymous with the words beyond the seas. 44. The substance of the determination is, that the words beyond the seas, within the meaning of the saving clause, could only be satisfied by the party being out of what should constitute the realm, for the time being, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the judgment by Lord Abinger, as a decision negativing that the words. beyond the seas and out of the realm are synonymous, but it may be doubted whether that view of the decision was correct. It would rather seem, as before stated, that the Court held, that the meaning of the expression beyond the seas was beyond, or out of the realm, and that at the time of the replication, Scotland was not out of the realm, and, therefore, not beyond the seas, and consequently not within the saving. The judgment also referred to a note in Jenkins's Eight Centuries Rep. Case 18, that since the Union, a husband while in Scotland would not be deemed beyond the seas so as to create the presumption of non access. 47. In the case of Battersby v. Kirk (2 Bing. N.C. 584), it was also held, that Ireland, for the purpose of that decision, was a place beyond the seas. The question was, whether goods landed in the Bristol Docks were liable to the dues imposed by the Bristol Dock Acts, upon goods imported from parts beyond the seas. The case underwent an elaborate argument upon the effect and construction of several Statutes relating to the trade, navigation, and various other mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod, he may sue when he comes out of prison, notwithstanding that he might have commenced an action at any moment whilst he was in prison, if he had so thought fit. The words of the 7th section are express, and the Plaintiff is within them. 51. The case, therefore, as regards this question stands in this predicament, that if the Statute of James does not operate in India, the plea is bad; and if it does operate, the replication contains a legal answer to it. And, therefore, quocunque via data, the appeal upon this point ought to be allowed. 52. But it has already been stated, that the plea is objected to upon another and distinct ground, namely, that although the Statute of Limitations may be applicable to India, yet that such Statute cannot be pleaded in this cause, in which the Plaintiff and Defendant are Hindoos. 53. If the recommendation of the Committee, which will be founded upon the opinion before expressed, shall be confirmed and adopted by Her Majesty, the appeal will be allowed irrespective of the objection referred to, but, as that objection has been supported by arguments founded upon the supposed construction of the Charter, and upon an alleged inconsistency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Charter, to which it is, therefore, necessary to refer. 58. The Charter contains four sections, which relate to the question, the 29th, 37th, 38th, 39th. 59. The 29th section is the governing section upon this point, and is to the following effect, namely, that in suits between Mahomedans or Gentoos, their inheritance or succession to lands, rents, and goods, and all matters of contract and dealing between party and party, shall be determined by the laws and usages of the Mahomedans and Gentoos respectively, or by such laws and usages as the same would have been determined if the suit had been brought in a native Court. 60. The 37th section requires the Court to frame processes, in criminal as well as in civil suits, and the rules for the execution of such processes with an especial attention to the religion, manners and usages of the inhabitants, and the circumstances of the country, so far as the same could consist with the due execution of the law and the attainment of justice. 61. There are two other sections in the Charter (the 38th and 39th), which show that it was not intended that the Charter Court should adopt the course of procedure which prevailed in the Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position in which, by the comity of nations, parties are placed who sue in the Courts of one country, in respect of rights or causes of action which had their origin in a foreign country. In such suits the lex fori adjudicates upon the rights and matters in litigation, according to the law of the country where the rights or causes of action arose ; and consistently with that course, the Charter provides, that Gentoos and Mahomedans, who live and conduct their transactions under certain systems of law and government peculiar to them respectively, shall have their rights and causes of action decided upon, in the Supreme Court, by the same law by which they would have been determined in a Native Court. 66. It was confided to the Court to secure the second object, by establishing rules, orders, and processes for the regulation of causes in the Supreme Court, between Gentoos and between Mahomedans. 67. Upon the part of the Defendant, it is contended, the plea is valid and warranted by the Charter, notwithstanding that such plea would not have been available if the suit had been instituted in a Native Court. 68. The arguments in support of the plea are founded upon the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arose, yet such Courts respectively proceed according to the prescription of the country in which it exercises its jurisdiction. 72. In section 576 of Story's Conflict of Laws, the law is thus succinctly expressed : In regard to Statutes of limitation or prescription of suits, there is no doubt that they are strictly questions affecting the remedy, and not questions upon the merits. They go ad litis ordinationem, and not ad litis decisionem, in a just juridical sense. The object of them is to fix certain periods, within which all suits shall be brought in the Courts of a State, whether they are brought by or against subjects, or by or against foreigners. And there can be no just reason, and no sound policy, in allowing higher or more extensive privileges to foreigners, than are allowed to subjects. Laws, thus limiting suits, are founded in the noblest policy. 73. Then follow many important observations, showing the wisdom and justice of the law of prescription, but which will not aid in the investigation of the question under consideration. 74. In section 577, Mr. Justice Story proceeds, It has accordingly become a formulary in international jurisprudence, that all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Supreme Court in regard to the processes and the rules and orders for the execution of them, except that they shall be respectively framed with an especial attention to the religion, manners, and usages of the native inhabitants, and accommodating the same to the circumstances of the country, so far as the same could consist with the due execution of law, and the attainment of substantial justice. 79. This section is merely auxiliary to the 29th section, and does not extend its effect in relation to the question of the validity of the plea ; and, supposing a plea could be held to be included in the word process, there is no ground for saying that it is inconsistent or repugnant to any part of, or any matter contained in, this section. 80. The fallacy which is imputed to the argument against the plea, is that it confounds a determination of the suit, with the determination of the right or cause of action in litigation in the suit; whereas it is said, that a judgment for the Defendant upon this plea will be no determination founded upon any law relating to the rights or merits involved in the cause of action, the judgment will be consequential upon what may be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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