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Parteson, J.-It is unnecessary to express any opinion on the other points; for on the last the modern authorities seem uniform. COLERIDGE and ERLE, J., concurred.
Rule absolute.(a) (a) Reported by C. Blackburn, Esq.
The law in the United States is settled by a v. Maine Bank, 11 Mass. 204; Carson v. Love, bost of authorities in conformity to the principle 8 Yerger, 215; Cornell v. Moulton, 3 Denio, 12; established in this case. When, in a statute, Weeks v. Hull, 19 Conn. 376; Vairin v. Edmontime is computed from an act done, the first day son, 5 Gilman, 270. The three months after is excluded; for a day is to be considered as the expiration of the year given to the debtor an indivisible point of time, and there can be to redeem lands sold under an execution in New no distinction between a computation from an York, commence running on the day succeeding act done and a computation from the day in the expiration of the year, and that is counted which the act was done. Homan v. Liswell, 6 inclusively. The People v. Sheriff of Broome, Cowen, 659; Ex parte Dean, 2 Cowen, 605; 19 Wend. 87. See also Goswiler's Estate, 3 Bigelow v. Wilson, 1 Pick. 485; Portland Bank Pennsylvania Rep. 201.
The QUEEN v. The BAPTIST MISSIONARY SOCIETY. June 9. Reported, 10 Q. B. 884 (E. C. L. R. vol. 59).
*JORDAN v. BINCKES. June 11.
[*757 4 fi. fa. "returnable immediately after the execution thereof,” under stat. 3 & 4 W. 4, c. 67, s. 2, is in force until it has been completely executed ; and where a portion only of the amount for wbich the writ issued was realized by levy, a second levy under the same writ for the balance, eleven years afterwards, was held good.
BRAMWELL, in last Easter term, obtained a rule calling upon the plaintiff and the sheriff of Middlesex to show cause why the levy and execution of the writ of fi. fa. in this cause on the 12th March, 1849, should not be set aside, and why the sum of 821. 48. levied by the said sheriff thereunder, and now in his hands, should not be returned to the defendant. The writ in question, “returnable immediately after the execution thereof,” to levy 901. 158., had issued in 1838. In that year a levy was made which produced about 5l. after payment of expenses ; and, on 12th March, 1849, the further sum of 821. 48. was made by a second levy under the same writ.
Lush for the plaintiff, and Burchell for the sheriff, now showed cause.The question whether a second levy can be made under a fi. fa., “returnable immediately after the execution thereof,” under stat. 3 & 4 W.4, c. 67, s. 2, arises now for the first time. A second writ for the purpose of obtaining complete execution of the judgment would have been irregular, as the present writ has not been returned; Chapman v. VUL. XIII.-57
2 P 2
Bowlby, 8 M. & W. 249 :t and the sheriff was bound to make the second levy under the same writ. Before stat. 3 & 4 W. 4, c. 67, if complete execution had not been had before the return day of the fi. fa., a second
writ would *have been necessary to warrant further execution. *758]
Since the statute, however, it has been held that a ca. sa. is not returnable until the defendant be arrested; Lewis v. Holmes, 10 Q. B. 896 (E. C. L. R. vol. 59). In like manner a fi. fa. is now not returnable until “after execution," that is complete execution. It is no objection that complete execution is not had until after the expiration of a year from the judgment, provided that the writ has been duly sued out within the year and day. This has been distinctly held with respect to a ca. sa.; Simpson v. Heath, 5 M. & W. 631,t(a) Greenshields v. Harris, 9 M. & W.774.7 One of the objects of the statute was to render a succession of writs unnecessary. As before the statute there
. might have been successive levies before the return day, so now, the writ not being returnable until after execution, there may be successive levies until execution, that is until complete execution. In this respect a fi. fa. is, like a writ of sequestration, a continuing writ. It may be said that, if a fi. fa. is thus to be in force for an indefinite time, the defendant will not know which sheriff is to be responsible to him. But there is no difficulty in this; for, by stat. 3 & 4 W. 4, c. 99, s. 7, every outgoing sheriff is to deliver to his successor a list of wall writs and other process in his hands not wholly executed by him, with all such particulars as shall be necessary to explain to the said incoming sheriff the several matters intended to be transferred to him," and is also to *759]
deliver over the *writs themselves: and, besides, the defendant
may at any time rule the sheriff to return what he has done upon the writ. The phrase “not wholly executed” seems to contemplate just such a case as the present.
Bramwell, contrà.—The phrase “not wholly executed” probably applies to a ca. sa. where one only of several defendants is taken under it. Though old writs are handed over to the incoming sheriff, yet the defendant would have no means of checking the accounts; and, if a writ is to be in force for eleven years, the Statute of Limitations may bar all remedy against the particular sheriff who has been guilty of misconduct. This defendant may have supposed, after a lapse of eleven years,
that the writ was satisfied by the first levy. The duty of the sheriff is to take enough in the first instance. If there is not enough he must take all he can; and when he has done this he has executed the writ, and must make known to the Court what he has done. If the defendant has two parcels of goods in different parts of the bailiwick, the sheriff may undoubtedly seize one parcel to-day and the other parcel tomorrow: but he must use due diligence to levy on all accessible goods. After the
(a) According to this report, 1838 was the year of the arrest; but this is noticed by PARKE, Bs., as a mistake for 1839, in Greenshields v. Harris, 9 M. & W. 776.7
exercise of such diligence, in case it should be either wholly or in part ineffectual, the time has arrived when the writ is executed; for the sheriff may then return either nulla bona, or fieri feci as to part and nulla bona as to the residue. According to the practice contended for by the plaintiff, the entire execution may be delayed eleven years, all the defendant's goods being bound in the interim. *Lord DENMAN, C. J.-It seems to me that this writ was not
[*760 completely executed by the first levy; and I do not see where the line is to be drawn, short of complete execution, to limit the force and duration of the writ. If the defendant wished to know what had been done under this writ, he might have ruled the sheriff at any time to return it. The defendant's construction, namely, that the writ is executed as soon as the sheriff may return nulla bona, either in whole or in part, requires authority to support it; and such authority as there is seems to be quite against him.
PATTESON, J.-I cannot see at what point the sheriff can stop before complete execution. Formerly, if other goods came into his bailiwick after a partial levy and before the return of the writ, the sheriff was bound to seize them; and he is equally bound to do so now, until the writ has been completely executed.
ERLE, J.(a)—I am of the same opinion; and I think the statute must be so construed in order to give any intelligible limit to the writ: the test suggested with reference to the sheriff's ability to return nulla bona would, I think, very often give but a doubtful limit.
Rule discharged.(6) (a) COLERIDGE, J., was sitting at Guildhall. (6) Reported by H. Davison, Esq.
*In the Matter of the Tithes of CROSBY-UPON-EDEN.
On inquiry with a view to commutation of tithes under stat. 6 & 7 W. 4, c. 71, the assistant
Commissioner proposed to make his award, giving a rent-charge to the vicar of 701. in lieu
of tithes of turnips, &c. The vicar had filed a bill in equity against certain of the land-owners for an account and payment
of tithes of turnips, &c., which he claimed as due to him: and the land-owners had put in an answer, alleging that the tithe in question had been vested in the rector, but was now barred
by sta 2 & 3 W. 4, c. 100. The suit was depending before the Lord Chancellor on appeal. This Court, referring to stat. 6 & 7 W. 4, c. 71, ss. 45, 50, granted a prohibition at the instance
of the land owners, to prevent the assistant Commissioner from making his award until the decision of the suit depending in Chancery; whether that decision were to be given by the
Court of Chancery, or by the Commissioners or assistant Commissioner, Semble, per Lord Denman, C. J., and Patteson, J., that the assistant Commissioner had power to determine the suit, as a preliminary to the making of his award.
A RULE was obtained this term, calling upon the Tithe Commissioners for England and Wales, and John Job Rawlinson, Esquire, one of Her
Majesty's assistant Tithe Commissioners, or their secretary, and also the Rev. Edward Salkeld, vicar of the vicarage of the parish and parish church of Crosby-upon-Eden in Cumberland, to show cause why a prohibition should not issue to prohibit the said Commissioners and assistant Commissioner from making their award as to the tithes in the said parish, “ until the decision of the suit of Salkeld v. Johnston and others, now depending in the Court of Chancery,” and mentioned in the affidavits on which the rule was obtained.
By one of the affidavits it appeared that, on May 27th, 1847, the assistant Commissioner held a meeting for commutation of the tithes of Crosby-upon-Eden, and, after inquiring into the value of the undisputed tithes, estimated the value of the tithe of turnips, potatoes, and agistment yearly growing, arising, &c., in the said parish, being the tithes in dispute in the suit of Salkeld v. Johnston, at the annual value of 701., and declared his intention of awarding that amount to the vicar: That *762]
*the land-owners present called his attention to the said suit; but
he stated that he knew nothing of it, and would not notice it, and would not delay making his award respecting the tithes of the parish, or the said disputed tithes, until the Lord Chancellor should give judgment on the appeal in the said suit; though the land-owners protested against his making any award till the suit should be determined: That, as the deponent believed, the assistant Commissioner would, unless restrained by prohibition, make his award on the basis of giving the vicar a rent-charge of 701. in lieu of the said tithes of turnips, potatoes and agistment, and the Commissioners would confirm such award: That no agreement for commutation of the vicarial tithes had ever been made : That the defendants in the suit were owners and occupiers of nearly all the lands in the parish, and had always disputed, and did dispute, the right of the vicar to tithe of agistment and the titheable matters mentioned in the suit, including turnips, potatoes, &c., and claimed exemption from tithe of agistment and of the matters mentioned in the suit: And that the said exemption from and non-liability to payment of the said tithes was the subject of the said suit, and the principal matter to be decided thereby, and which was still undecided, and depending before the Lord Chancellor.
Another affidavit, by the agent for the defendants (except two) in the above-mentioned suit, stated: That, on December 9th, 1835, the Rev. Edward Salkeld, then vicar, filed his bill in the Court of Exchequer, and therein stated his right, as vicar, to tithes in kind of turnips, potatoes, peas, beans, cabbages, tares, grass clover, &c., artificial grasses, and other green crops yearly arising, &c., and to tithe of agistment *763]
for all unprofitable cattle within the said parish, &c., and *com
plained that the defendants, occupiers of lands in the parish, had grown such titheable matters on their, said lands without making compensation to the plaintiff, and had refused to render him an account:
and he prayed that they might answer, and might be decreed to account, and to pay and satisfy what should be due. That an answer was put in, admitting the occupation of lands and the growing of titheable matters, but alleging that the right to tithe of the matters in question had always been vested in the rector for the time being, and was now barred (except as to peas and beans, tithe of which was due to the rector) by stat. 2 & 3 W. 4, c. 100; and that the lands of the defendants had been enjoyed without paying tithe of the matters in question to the vicar, during the times of two successive vicars, and for not less than three years, &c. (stating the other particulars required by stat. 2 & 3 W. 4, c. 100, 1): That, evidence having been gone into, the cause was heard; and Wigram, V. C., on February 8th, 1842, (a) ordered the Master to take an account, and the defendants to pay what should thereupon be found due: That the defendants appealed to Lord LYNDHURST, C., who ordered a case to be stated for the opinion of the Court of Common Pleas as to the operation of the statute: That, on argument of such case, that Court was equally divided in opinion, two Judges holding that the prescription attached, and two others the contrary :(6) That Lord COTTENHAM, C., then, in November, 1846, ordered a case to be stated for the opinion of the Court of Exchequer as to the operation of the statute: That the questions in that case, as ultimately shaped, were:
*“1. Whether, according to the true construction of” stat. 2 & 3 W. 4, c. 100, valid and indefeasible prescription or claim of exemption from or discharge of tithes [*764 of turnips, potatoes, cabbages, tares, grass clover, rye grass, sainfoin, and other artificial grasses not made into hay, but used as and for green fodder, or carried off the land in a green state, and other green crops, and of the agistment of barren and unprofitable cattle, or any of suchotithes, could be sustained, under the circumstances in the said case mentioned, for those parts of the said lands in the said parish of Crosby-upon-Eden, in the occupation of the defendants respectively, in respect of which no tithes of any kind, nor money nor other matter in lieu thereof, have or bas been paid or rendered during the period mentioned in the case. 2. Whether, according to the true construction,” &c., "a valid and indefeasible prescription,” &c. (as in the first question), “could be sustained, under the said circumstances, for those parts of the said lands in the said parish of Crosby-upon-Eden, in the occupation of the defendants, in respect of wbich no tithes of the last-mentioned titheable matters and things, por any money or other mat. ter in lieu thereof, have been paid or rendered during the periods mentioned in the case, although at various times during such periods the said titheable matters and things grew and arose upon such lands, and at various other times during such periods other titheable matters and things (including corn, grain, and hay) grew and arose upon the same lands, and the tithes of all the lastmentioned matters and things have from time to time been paid and rendered.”
That the Court of Exchequer certified as follows. “1. We are of opinion that, as to those parts of the lands in question whereof no tithe of any kind nor any money or other matter in lieu thereof have or has been paid or rendered during the period above mentioned, according to the true construction of the said statute, a valid and indefeasible prescription or claim of exemption from or discharge of all tithes can be sustained under the circumstances bereinbefore mentioned, provided all the tithes of all the titheable matters from time to time growing on the said parts of the said lands be shown to have been during the whole of the said period withbeld adversely, and under a claim as of right, acquiesced in hy the tithe owner. 2. As to the other parts of the lands in question, whereof no tithes of the particular titheable matters and things, the tithes whereof are demanded by the plaintiff's
(a) See Salkeld v. Johnston, 1 Hare, 196.