9911796707
TMI Blog1852 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... bay, and were the goods of the Plaintiff'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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even if the Statute did 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his jurisdiction, and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Lord Coke, in the Second Inst., p. 337, in reading upon the Statute of 13 Edw. I., says, "Hereby it may be gathered (as the law was), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the highest authority, and Lord Ellenborough said, that no better authority than Plowden could be cited. The case is thus stated. In the 8th Rich. II., a party pleaded in bar a fine, levied before the Statute of Non-claim, and alleged, that the Plaintiff was, a year and a day after the fine levied, within the four seas, and did not claim. The Plaintiff 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the seas," or out of the King's subjection, were yet within the saving of the Statute, and referred to Brooke's reading before mentioned; but Dennison, Justice, said, this is a new experiment, and that the Statutes of Limitation of James and Anne were both express, that the party to be excused must be "beyond the seas," and that he did not understand what the replication meant, by "foreign parts," and that the party must be "beyond the seas," 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes I., c. 16, that Ireland was "beyond the seas" within the meaning of that Statute. Lord Abinger, in delivering judgment in Lane v. Bennett, entered largely into the question of the legal import of the words "beyond the seas," and referred to many of the Statutes before mentioned, and to Littleton and Lord Coke's Commentaries as authorities, that the words "beyond the seas," and "out of the realm," had been used as synonymous in legal meaning, but decided that Ireland continued to be a place "beyond the seas," notwithstanding the Act of Union. The case of King v. Walker is mentioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... synonymous with the words "out of the territories" and "out of the realm," and that the replication, therefore, discloses a valid answer to the Defendant's plea. 50. If the words of the replication are equivalent to the words "beyond the seas," then the Plaintiff is within the express provision of the 7th section, and the Statute would be no bar. It is no answer to say, that the party might sue or be sued during the whole time, by reason of a constructive inhabitancy. That might probably give the Court jurisdiction, but will not prevent the express operation of the 7th section. A Plaintiff may be in England for six years, but nevertheless, if he be in prison when the cause of action arises, during the whole period, 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny law or usage relating to any of those matters, but that the validity of the plea depends upon the question, whether the course of practice, or procedure, as it is called, under the authority of which it is pleaded, is consistent with the Charter. 56. The substance of the objection to the plea seems to be, that a judgment in favour of the Defendant, founded upon the plea of the Statute of Limitations, would be a determination upon the rights in litigation between Gentoos, by virtue of a different law than that by which the same suit would have been determined in a Native Court, if instituted there. And it is conceded that the plea would not have been available in a Native Court. 57. The merit of this objection depends upon the construction of the 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult to maintain that a determination of the suit, under such circumstances, would be inconsistent with the Charter. 64. The Charter, while creating the new Court, provided for two objects. The one object was, that the rights of Gentoos and Mahomedans, in regard to the matters specified in the Charter, should be adjudged in the new jurisdiction, according to the law by which they would have been determined in a Native Court. The other was, that the course of procedure in the new jurisdiction, by which such law was to be administered, should be consonant with the religious feeling, usages, and manners of the native suitors. 65. The first object seems to have been attained by placing Gentoo and Mahomedan suitors in the Charter Court in 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight, Statutes of limitation or prescription are ordinarily simple regulations of suits and not of rights. They regulate the times in which rights may be asserted in Courts of Justice, and do not purport to act upon those rights." And then he adds, "Pothier very properly treats prescription, not so much as an extinguishment of the debt or claim, as an extinguishment of the right of action therein. And this is precisely the manner in which the subject is contemplated at the common law, as well as by many foreign jurists." 71. Consistently with this view, while the Courts of almost all civilised countries entertain causes of action which have originated in a foreign country, and adjudicate upon them according to the law of the country in which they 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It appears to the Committee, after much consideration, that the plea is an admissible and valid plea in this suit, and that the allowance of it is alike consistent with the 29th section of the Charter as with the 37th section, the terms of which section have been already stated. 78. The 37th section of the Charter has been commented upon, as tending to show that no course of procedure in the Charter Court can be valid and consistent with the Charter, which should authorise a judgment in a suit between Gentoos, founded upon any law other than that by which the same suit would have been determined in a native Court; but, on an attentive perusal of that section, it will be found to refer only to process and its execution, and that no restriction or duty is imposed upon 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
