1869 MYERS v. VEITCH. which s. 113 is taken, is not precisely the same as s. 113; and it is very plain that by s. 5 the officer who arrests and detains the bankrupt is the only officer liable to a penalty. The difference in the wording of the two sections is too slight to induce me to think the legislature intended to make any change.] In Bancroft v. Mitchell (1) the declaration alleged that the gaoler was an officer within the meaning of s. 113; and it seems to have been conceded both by the Court and the counsel that the declaration was good, and an action would lie against the gaoler. Crompton, in support of the rule, was not heard. BLACKBURN, J. I think when we look at the terms of this enactment, and find it imposes a penalty, we ought to see clearly on whom the penalty is imposed. The section provides that the bankrupt who has obtained an order of protection shall, on producing such protection to the officer who shall arrest him, and giving such officer a copy thereof, be immediately discharged. Here, when the bankrupt was arrested, if he had complied with the requirements of s. 113, he would have been entitled to be immediately discharged. Then the section proceeds: "If any officer shall detain such bankrupt after he shall have shewn such protection, such officer shall be liable to a penalty." Now, after the arrest the bankrupt was taken to gaol, and produced his protection to the gaoler; if the gaoler had then discharged him, and an action for an escape had been brought, I think it would have been extremely doubtful whether this section could have been set up as a defence. It is contended that "any officer" are words having a wider signification than the words "the officer who shall arrest," and that they must include a gaoler who detains the bankrupt, and that the gaoler is liable to the penalty. But to support this contention it must be argued that the legislature intended that the gaoler should discharge the bankrupt on the production of the certificate. To hold this would be to put a wrong construction on the section. The section must be confined to the officer who arrests. When the bankrupt is once lodged in gaol, the section does not apply. Sect. 5 of 5 Geo. 2, c. 30 (2), more clearly shews the meaning of the enactment; and as a penalty is not to be im(2) Ante, p. 651. (1) Law Rep. 2 Q. B. 549. posed without clear words, I think the rule to enter a nonsuit must be made absolute. LUSH, J. I am of the same opinion. I think we are not justified in extending, by implication, a penal clause to a second class of officers. I think the intention was to confine the section to officers who arrest, and that the words "any officer" in the second clause refer to the officer mentioned in the first part of the section. HAYES, J. I think the section was not intended to apply to a gaoler, who has no power to discharge the bankrupt until he receives an authority in a regular manner. Attorneys for plaintiff: Underhill & Field. Rule absolute. 1869 MYERS v. VEITCH. HARRIS AND ADAMS v. QUINE. Statute of Limitations (21 Jac. 1, c. 16)—Lex fori-Plea of Statute of Limitations and Judgment thereon in country of contract no bar to action in England-Attorney's Bill, Action on. The plaintiffs, attorneys in the Isle of Man, were retained by the defendant, in 1858, to conduct a suit in one of the Manx courts in which he was defendant. The suit was dismissed in April, 1861; in September, 1861, the plaintiff in the suit appealed to a superior court, and the plaintiffs continued to act for the defendant and conducted the appeal on his behalf up to the 1st of October, 1862. By the Manx statute law an action on simple contract brought in the temporal courts of the island must be commenced within three years of the cause of action. The plaintiffs brought an action in one of the Manx courts more than three years after October, 1862, and the court decided that the action was barred by the statute. The plaintiffs commenced an action in this country in January, 1868, to which the defendant pleaded-1. The judgment of the Manx court. 2. The English statute of limitations : Held,-1. That, as the Manx statute barred the remedy only and did not extinguish the debt, the judgment of the Manx court was no bar. 2. That, under the circumstances, there was a continuous employment of the plaintiffs; and that therefore none of the items were barred by the statute of limitations. THE writ in this action was issued on the 9th of January, 1868. Declaration for work and labour. June 7. 1869 HARRIS v. QUINE, : Pleas 1. Never indebted. 2. That the alleged cause of action did not accrue within six years before suit. 3. That the plaintiffs ought not to be admitted to say the debt is due, because they brought an action for the same cause in the Dempster Court of Douglas in the Isle of Man, and such proceedings were had in that action that it was considered by the judgment of the court that the defendant did not owe the debt, and the said judgment still continues in full force, wherefore the defendant prays judgment if the plaintiffs ought to be admitted against the judgment of the said Court of Man to say the money is payable by the defendant to the plaintiffs. Issue was joined on the pleas, and the plaintiffs also demurred to the third plea on the ground that it was not alleged that the judgment of the Manx Court was final between the parties. Joinder in demurrer. At the trial before Blackburn, J., at the sittings in Middlesex in Trinity Term, 1868, it appeared that the plaintiffs were attorneys and advocates in the Isle of Man, and the action was brought for professional business done for the defendant. The principal part of their bill was for a suit commenced in 1858, the first item being : £ s. d. "1858. March 25. Between Edward Corram and Wife, petitioners, v. John Quine, defendant. In Consistorial Court. Retainer and instructions . This was continued from time to time, and in 1861 was dismissed. The item of charge being— "1861. April 25. Appearance and arguing case, The amount of the bill up to this date being 080 "1861. September 30. On appeal to Staff of Government. Retainer and instructions 1 1 0 "1862. July 3. Appearance, and adjourned to next Court." The aggregate then being. 37 12 3 080 45 10 3 On the 1st of October, 1862, the plaintiffs dissolved partnership, and Adams continued the suit on behalf of the defendant till its end. On the 30th of October, 1865, the plaintiffs commenced an action jointly against the defendants in the Dempster Court of Douglas, Isle of Man, for the costs of suit up to the 1st of October, 1862, and the defendant relied on the Manx statute of limitations, which enacts" that actions of debt, grounded upon any trading, contract, or demand, without specialty, which shall be sued or brought in any of the temporal courts of this isle, shall be commenced and effectually prosecuted within the time and limitation hereinafter expressed, that is to say, within three years next after the cause of such action, plaint, or suit, and at no time afterwards." Judgment was given for the defendant, the Dempster being of opinion that the debt was barred by the statute of limitations; holding that there being two distinct contracts, the first with the two plaintiffs the second with Adams alone, when the latter was recognized as the advocate to proceed with the suit, the contract with Harris and Adams was at an end, and the three years began to run from that date. A verdict was directed for the plaintiffs for the amount claimed, with leave to the defendant to move. A rule was obtained pursuant to the leave, to shew cause why the damages should not be reduced to 77. 188. (1), or such sum as the Court might think proper, on the ground that the judgment given for the defendant in the Manx court, or the plea of the English statute of limitations, was a bar to the plaintiffs' claim or some part thereof; and why the Court should not amend the third plea; the demurrer to be argued with the rule. R. G. Williams, for the plaintiffs. The Manx statute, beyond all question, bars the remedy in the Manx courts only, and does not extinguish the debt; it is therefore no bar to the present action: Story's Conflict of Laws, ss. 576, 577 (though in a note it is said that Hertius was of a different opinion), Huber v. Steiner. (2) Prescription of suit, or limitation of action, has been long settled by the courts of this country to be part of the lex fori only: see per Sir J. Jervis, (1) The amount of the costs due to the plaintiffs as to the appeal. 1869 HARRIS v. QUINE. VOL. IV. (2) 2 Bing. N. C. 202. 3 H 1 1869 HARRIS บ. QUINE. delivering the judgment of the Privy Council in Ruckmaboye v. Mottichund. (1) [HAYES, J., cited British Linen Company v. Drummond (2), as to the same effect.] Donn v. Lippman (3) shews that the action cannot be affected by the judgment in the foreign court. The judgment was only on the point that the action was barred in the Manx Court; and it was not a decision on the merits. In Bank of United States v. Donnally (4), Story, J., says "As the contract, upon which the original suit was brought, was made in Kentucky, and is sought to be enforced in the state of Virginia, the decision of the case in favour of the defendant upon the plea of the statute of limitations will operate as a bar to a subsequent suit in the same state; but not necessarily as an extinguishment of the contract elsewhere, and especially in Kentucky." So in Garcias v. Ricardo (5) a judg ment of a foreign court not on the merits was held no bar; and this case is cited as authority for that proposition in Westlake's Private International Law, p. 376. As to the English statute of limitations, the plaintiffs were entitled to recover for the whole of the business; there was one continuous employment. Wadworth v. Marshall (6) will be relied on contrà, but it is distinguishable. [LUSH, J. That case only shews that an attorney may refuse to proceed in a cause without advances from the client; but it is not the less one contract if he does proceed.] Whitehead v. Lord (7) shews that if the suit be not concluded at the time of action brought, whatever stage it may be in, none of the items of the bill are barred by the statute. Baylis, for the defendant. The matter has been already liti gated in the Manx court; and the principle applies, nemo debet bis vexari pro eâdem causâ. The local legislature has full power over any contract made within its jurisdiction: Phillips v. Eyre. (8) [COCKBURN, C.J. The colonial statute, in that case, expressly took away the cause of action; here it only bars the remedy in the local courts.] (1) 8 Moo. P. C. at p. 35. (3) 5 Cl. & F. 1, 13. (4) 8 Pet. U. S. Rep. 361, 370. (5) 14 Sim. 265. (6) 2 C. & J. 665. (7) 7 Ex. 691; 21 L. J. (Ex.) 239. (8) Ante, p. 225. |