RHODES

2.

SMETHURST.

[ *355 ]

case, though not within the words, is yet within the meaning and reason of the Act.

In addition to the cases at law, three cases from courts of equity were cited: Jolliffe v. Pitt (1), Webster v. Webster (2), Perry v. Jenkins (3).

In the case of Jolliffe v. Pitt, the decision does not appear; it is only said that the CHANCELLOR inclined to be of opinion that the Statute of Limitations was not to take effect.

In Webster v. Webster, a bill was filed by the executor of a creditor against the executor of the debtor. The debtor died in 1786, the creditor in 1792. The will was not proved till 1802. The bill prayed for an account and payment. The defendant put in a plea of the Statute of Limitations. It is said that the CHANCELLOR objected, that, as there was no representation till 1802, there was no person who could be sued, and therefore the statute could not be pleaded.

No decision, however, was come to on the point, and ultimately the plea was, under the circumstances of the case, allowed.

In Perry v. Jenkins, the question arose on a bill of revivor. The original bill was filed by Griffith Jenkins against Lewis Jenkins in 1818. In 1819 Griffith Jenkins died, leaving Ann Jenkins his widow. In 1827, Lewis Jenkins, the original defendant, died. In 1830, Ann, the widow, married one Perry; subsequent to this marriage, administration was taken out by Mrs. Perry to the estate *of the original plaintiff, Griffith Jenkins, and in 1835, the bill of revivor was brought against the real and personal representatives of Lewis Jenkins, the original defendant.

To this bill a plea of the Statute of Limitations having been put in, it was overruled, on the ground that the Statute of Limitations did not begin to run till administration was taken out. The right to revive the bill never had existed in the deceased Griffith Jenkins: it was a right first accruing to his personal representative; and on that ground the case of Murray v. The East India Company (4) was said to be a conclusive authority against the plea.

It appears from this examination, that the cases in equity do not (any more than those at law) furnish any authority for the proposition contended for by the plaintiff in this case.

If from the cases we turn to the statute, we see nothing in the words of the clause in question which points to the necessity of a

(1) 2 Vern. 694.

(2) 7 R. R. 351 (10 Ves. 93).

(3) 1 My. & Cr. 118.

(4) 24 R. R. 325 (5 B. & Ald. 204).

continuing cause of action, capable of being enforced during the RHODES whole period of six years. The words are, that the action shall be SMETHURST. brought within three years after the end of the then session of Parliament, or within six years next after the cause of such action or suit, and not after. These words, in their natural sense, import what is more precisely expressed in the 7th section of the same statute, by the words "the time of any such cause of action given or accrued, fallen or to come."

It was said in argument, that no laches can be imputed to the plaintiff for not suing during that portion of time during which there was no person whom he could sue, and therefore that period of time ought to be excluded from calculation, by an equitable extension of the terms of the Act.

This argument might be entitled to some weight, if the clause in question had had for its object the remedying of some inconvenience under which plaintiffs suffered, in *which case it might be extended by construction to reach a case not within the words, but within the mischief intended to be remedied. But the object of this Act is quite different; it was passed for the benefit of defendants, to exempt them from being called to account in respect of transactions long gone by, which it might not be easy to explain at a distance of time. This object would be liable to be, in many cases, defeated, if we were to adopt the construction contended for by the plaintiff; the time of limitation might be indefinitely prolonged, and we should be extending a statute by equity, not to forward, but to defeat, the remedy which the Act had in view.

The case of Prideaux v. Webber (1), in which the statute was held to run, though the courts of law were shut in consequence of the rebellion, shows that this clause of the Act is to be construed strictly against plaintiffs; and the Act of 1 W. & M. c. 4, by which it was enacted, that from the 10th of December until the 12th of March, 1688, shall not be accounted any part of the time within which any person, by virtue of the Statute of Limitations, must bring his action, is in accordance with this view of the law.

We think, therefore, that the observations of Lord KENYON, in the case of Doe d. Duroure v. Jones (2), with reference to the Statute of Fines, furnish the proper rule for the construction of the statute of James, and for the 3rd equally with the 7th section of that Act: "I never heard it doubted," said Lord KENYON, "till the discussion of this case, whether, when any of the Statutes of (1) 1 Lev. 31. (2) 2 R. R. 390 (4 T. R. 300).

[ *356 ]

RHODES

v.

Limitation had begun to run, a subsequent disability would stop SMETHURST. their running. If the disability would have such an operation on the construction of one of those statutes, it would also on the others. I am clearly of opinion, on the words of the Statute of Fines, on the uniform construction of all the *Statutes of Limitation down to the present moment, and on the generally received opinion of the profession on the subject, that this question ought not now to be disturbed."

[ *357 ]

Our opinion therefore is, that the judgment of the Court below ought to be affirmed.

Judgment affirmed.

1838.

Erch. of
Pleas.

[ 4 M. & W.
71]

CROWTHER v. ELWELL.

(4 Meeson & Welsby, 71-72; S. C. 1 H. & H. 187; 7 L. J. (N. S.) Ex. 251 ; 2 Jur. 760; 6 Dowl. P. C. 697.)

Where some issues are found for the plaintiff, and some for the defendant, the latter will be entitled to the costs of the witnesses who are called exclusively in support of the issues found for him, but not of those who are also examined to disprove the issues found for the plaintiff.

THIS cause was referred at Nisi Prius to arbitration, and the arbitrator awarded that the plaintiff was entitled to a verdict on the second and fourth issues, and the defendant on the first and third. The defendant, on the taxation, claimed to be allowed the costs of certain witnesses in respect of the issues found for him. The Master refused to allow such costs, without an affidavit of increase stating "that they were material and necessary witnesses in support of those issues, and that their evidence did not apply in any degree to the issues found for the plaintiff." The defendant produced an affidavit, which stated that, "although the evidence of those witnesses referred to a certain extent to the issues found for the plaintiff, yet that the said witnesses were subpoenaed by the defendant principally and specifically with a view to support the issues found for the defendant; and that such witnesses, in the judgment and belief of the deponent, spoke only generally and not materially to the issues found against the defendant." The Master not deeming this affidavit sufficient, refused to allow the defendant the costs of those witnesses.

F. V. Lee now moved for a rule to show cause why the Master should not review his taxation:

The affidavit was sufficient, and the Master ought to have allowed

the costs. In Knight v. Moore (1), it was held that the defendant is entitled to the costs of witnesses called to establish the issues eventually found for him, though they also gave evidence incidentally on the other parts of the case. The test seems to be, what is the issue to which the evidence of the witnesses is substantially directed. In Eades v. Everatt (2), it was held that the expenses of a witness *called by the defendant, whose evidence. was substantially directed towards the issues found for him, were properly allowed to the defendant, although he gave some evidence upon the other issues. Here it is sworn that the witnesses were subpoenaed by the defendant principally and specifically to support the issues found for him, and that such witnesses spoke only generally and not materially to the issues found against the defendant. It is submitted that if a party swears he subpoenaed the witnesses to speak specifically to the issues found for him, although they did incidentally speak to the other issues found against him, he ought to be allowed the costs of those witnesses. Suppose, in this case, the second and fourth issues had not been raised upon the record, these witnesses must have been there to be examined on the other issues for the defendant.

ALDERSON, B.:

If the witnesses were used to disprove the issues found for the plaintiff, the defendant cannot have the costs of those witnesses: if they were not used for that purpose, then the defendant would be entitled to have them allowed. I do not understand the meaning of the expression, that the witnesses were subpoenaed "specifically" with a view to the issues found for the defendant. If the word "solely" had been used, it would have been intelligible. The only definite rule is that laid down by BAYLEY, B., in Lardner v. Dick (3), that where some issues are found for the plaintiff, and some for the defendant, the latter is not entitled to the expense of his own witnesses, unless their evidence related exclusively to the issues found for him. It seems to me that that is a definite rule. You are seeking to introduce an indefinite rule, which is to depend upon the intention of the parties in subpoenaing their witnesses.

Rule refused.

CROWTHER

2.

ELWELL.

[*72]

(1) 3 Bing. N. C. 534; 4 Scott, 360. (2) 3 Dowl. P. C. 687.

(3) 2 Cr. & M. 389; 2 Dowl. P. C. 333.

1838.

Erch. of
Pleas.
[101]

[ *102 ]

LOUISA CURSHAM, SUSANNAH W. MERRICKS, AND
HARRIET MERRICKS, v. WILLIAM CHARLES
NEWLAND AND OTHERS.

(4 Meeson & Welsby, 101-115; S. C. 7 L. J. (N. S.) Ex. 212.)

A testator, by the residuary clause of his will, devised as follows: "I give, devise, and bequeath all the rest of my freehold, copyhold, and leasehold estates, and all other my real and personal estate, according to the nature and quality of such estates respectively, unto my wife E. M. for her own use during her natural life, and, after her decease, unto my said son and daughters, and their lawful issue respectively, in tail general, with benefit of survivorship to and amongst their issue respectively as tenants in common, and not as joint tenants; provided, that such issue not to have a vested interest until they attain the age of 21, being sons, and, being daughters, until they attain that age or are married; but during the minority of the said issue of my said son and daughters, I authorize my trustees, or the survivor of them, or his heirs, after the death of my said son and daughters respectively, to apply the whole or any part of the rents and profits of the said estates, and not exceeding the interest of the presumptive share of such child therein, for and towards his, her, or their maintenance, education, and advancement during minority: and in case my said son and daughters, or any of them, shall die in my lifetime, or after my decease, without leaving lawful issue, or with lawful issue which, being a son or sons, shall not attain the age of 21, or, being a daughter or daughters, shall not attain that age or be married, then the share or shares of him, her, or them so dying to be for the benefit of the survivors and their issue, in the same manner as their original shares are hereinbefore given to them respectively." In previous clauses of the will, the testator had created trusts of different sums of money for the benefit of his son and daughters and their issue; and it was admitted that in those clauses the word "issue" was used to describe their children: Held, that in the residuary clause also, the words "lawful issue" were to be construed as words of purchase, and not of limitation, and as designating the children of the testator's son and daughters; and that the son and daughters took estates for life in the freehold property thereby devised, with contingent remainders in tail to their respective children, with cross remainders in tail amongst such children respectively, and cross limitations over amongst the children of the respective families.

By order of the MASTER OF THE ROLLS, the following case was sent for the opinion of this Court (1).

Richard Merricks made his will, duly executed and attested, and bearing date the 2nd day of June, 1821, and thereby (amongst other things) gave and devised his undivided third part of certain messuages, lands, tenements, *hereditaments, and premises, situate

(1) The same case had previously been sent for the opinion of the Court of Common Pleas. See 2 Bing. N. C. 58; 2 Scott, 105. [On this certificate coming before the Master of the Rolls, it was admitted by counsel on the part

of the plaintiff that there was some difficulty in maintaining it, and the case was referred for the opinion of the Judges of the Court of Exchequer as above: 2 Beav. 145.]