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1805.

OOTTON against HARVEY.

· [80]

the Sessions, or that the money had not been paid for 21 days before the issuing of the warrant of distress, otherwise the magistrate was to presume that the money had been paid.

Lord ELLENBOROUGH, C. J. More than 21 days had elapsed after the appeal was heard, and the original order confirmed, and there was no pretence that the money had been paid, nor was the magistrate to assume that it had. Then, taking it that there had been no payment, the magistrate was warranted in issuing his warrant of distress.

GROSE, J. I see no necessity in this case for making a fresh demand after the appeal, and before the levy.

LAWRENCE, J. A person who is bound to pay money to another is required to find out his creditor, if in England, and to tender him the money. The act directs that the money shall be paid within 21 days after the order made; if it be not paid within that time, the magistrate may enforce the payment by distress. But my doubt is, whether, after the appeal determined, the magistrate should not have been applied to, and the facts laid before him before the execution of the warrant.

The learned Judge, however, upon adverting again to the report of the evidence, said that his doubt had arisen upon a supposition that the warrant had issued before the appeal ; but he now found that it was not till after the appeal, and after the lapse of 21 days subsequent; and, therefore, he agreed that the levy was warranted by the act of parlia

ment.

LE BLANC, J. I do not think that any demand was necessary; for the magistrate is required to issue his warrant, in case of refusal to pay the money ordered, or non-payment of it for 21 days. Then the appeal only suspended the execution of the warrant; and I consider that the 21 days began to run from the order. Therefore, after the appeal, which confirmed the order, the warrant might issue without any fresh demand.

Rule discharged.

1805.

DOE, on the joint and several Demises of GEORGE Saturday, and FRANCES his Wife, against JESSON.

Jan. 26th.

where the ancestor died seisson and daugh

ed, leaving a

ter infants, and

on the death of the ancestor a

stranger enter

have died

the daughter

make her entry after the death of her brother,

but only to to years; more

than 20 years

THIS was an ejectment for a house and a small parcel of land, which was tried before Rooke, J. at the last assizes at Northampton; and the principal question was, Whether the action were brought in time within the 2d clause of exceptions in the statute of limitations, 21 Jac. 1, c. 16? The person last seised of the premisses, from whom the ed, and the son lessors of the plaintiff claimed, was one Thomas Jesson, soon after went on whose death in the year 1777, David, his elder brother, supposed to took possession of them, and transmitted the possession to abroad within the defendant his grandson. Thomas Jesson left a son (John) age, held that and a daughter (Frances) him surviving. John was baptized was not entitled in 1767; and after the death of his father, being then about to 20 years to 10 years of age, was put out apprentice to the sea service by the parish, and was seen by a witness on his return from his first voyage, about a year after the father's death: soon after which he went to sea again, and had not been heard of having in the since; and was believed to be dead. Frances, the daughter, whole elapsed one of the lessors of the plaintiff, was baptized on the 21st of the person of May, 1771, and afterwards married George, the other lessor. It was contended at the trial by the defendant's counsel, that the ejectment was out of time; for it was uncertain when John, the son of Thomas the ancestor last seised, died, and that the 20 years given by the statute be gan to run immediately on the death of Thomas in 1777, and consequently expired in 1797; or that if the statute favoured Frances the daughter till 10 years after the disability of her infancy was removed, at any rate as she was of full age in 1792, she ought to have brought her ejectment in 1802; and, consequently, this ejectment brought in 1804 was too late. On the other hand, it was contended by the plaintiff's counsel, that supposing John to have died abroad, the presumption of his death could not arise till seven years after he was last seen in England previous to his going to sea, which would not be till 1785 or 1786, till when the right of entry of the lessor Frances did not accrue; and that she had 20 years in which to bring her ejectment after that time;

last seised

*

[ 81]

the

1805.

Doz against Jreson.

[82]

the statute having never begun to run by reason of the continuing disability; and, consequently, that this action was well brought. The learned Judge left it to the jury to say when and where John died; and observed, that it was fair to presume he had not died in England, as none of his family ever heard of his death. And as to the time, that it was incumbent on the jury to find the fact, as well as they could, under the doubt and difficulty of the case (a): that at any time beyond the first seven years they might fairly presume him dead, but the not hearing of him within that period, was hardly sufficient to afford such a presumption. The jury found a verdict for the plaintiff; and that John died abroad about the year 1785, 1786, or 1787, but not before. In the last term it was moved to set aside the verdict, and grant a new trial, on the ground that Frances, the daughter, was at most only entitled to 10 years for bringing her ejectment after she came of age, which was in 1792, even if she were not bound to have made her entry within 10 years from the death of her brother, from whom she claimed.

Vaughan, Serjt. and Reader now shewed cause. The title of the lessor of the plaintiff, Frances, did not accrue until the death of her brother, which the jury found was not before 1785; and the first clause of the statute of limitations (b) [83] gives every person 20 years to make their entry after their title first accrued. The second clause was evidently intended to extend and not to limit the time of entry allowed by the first: because, in the particular cases, it allows 10 years,

(a) Reference was made to the case of General Stanwix and his daughter, who were drowned as they were going to Ireland; where Lord Mansfield required the jary to find, Whether the General or his daughter survived? and to the case of the family who were burnt in the great fire in Cornhill.

(b) 21. Jac. 1, c. 16, s. 1, enacts, that "No person shall make any entry into lands but within 20 years next after their right or title which shall first descend or accrue to the same; and in default thereof, such persons so not entering and their heirs, shall be utterly excluded and disabled from such entry after to be made."

Sect. 2. "Provided nevertheless, That if any person or persons entitled to such writ, or that shall have such right or title of entry, shall be, at the time of the said right or title first descended, accrued, come, er fallen, within the age of 21 years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons, and his and their heir and heirs shall or may, notwithstanding the said 20 years be expired, bring his action, or make his entry, as he might have done before this act; so as such person and persons, or his or their heir and heirs shall, within 10 years next after his and their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this realm, or death, take benefit of and sue forth the same, and at no time after the said 10 years."

notwithstanding

1

notwithstanding the said 20 years be expired. The meaning, therefore, was to allow every person at least 20 years after their title accrued, if there were a continuing disability from the death of the ancestor last seised, and 10 years more to the heir of the person dying under a disability; which 10 years are in addition to the 20 years allowed by the first clause. Where, indeed, the bar once begins to run, it may be presumed, in analogy to the statute of fines, 4 H. 7, c. 24, settled in Doe d. Duroure v. Jones (a) that no subsequent disability will stop it: but here the disability continued from the death of the person last seised, until after the lessor's title accrued, and the time never began to run dur ing the brother's lifetime. In another view of the case, a difficulty was imposed upon the jury without necessity, in requiring them to find the exact period of the death of the brother of the lessor; which they could not properly do without evidence. It would have been sufficient for them to have found that he continued abroad till his death, and that he died within 10 years before the ejectment brought; and if there were sufficient evidence before them to have raised that presumption, the Court will not send the cause to a new trial when the same verdict ought to be found. Clarke and Bramston were to have supported the rule; but the Court thought that at any rate there must be a new trial.

Lord ELLENBOROUGH, C. J. The time allowed by the statute for making an entry might be indefinitely extended, if the construction contended for by the plaintiff were to be admitted. There is no calculating how far it might be carried by parents and children dying under age, or continuing under other disabilities in succession. The brother, John, through whom the lessor of the plaintiff, Frances, claims, being under the disability of nonage at the time of his father's death, when his title first accrued, and dying under that disability, it appears to me that the proviso in the second clause of the statute (where resort is to be had to it to extend the period for making an entry beyond the 20 years) required the lessor Frances, as heir to her brother, to make her entry within 10 years after his death and that not having done so, this ejectment was brought too late.

(a) 4 Term Rep. 300.

1805.

Dor

against JESSON.

[ 84 ]

The

1805. DOE against JESSON.

[85]

[ 86 ]

The word death in that clause, must mean and refer to the death of the person to whom the right first accrued, and whose heir the claimant is: and the statute meant that the heir of every person, to which person a right of entry had accrued during any of the disabilities there stated, should have 10 years from the death of his ancestor, to whom the right first accrued during the period of disability, and who died under such disability (notwithstanding the 20 years from the first accruing of the title to the ancestor should have before expired). As to the period when the brother might be supposed to have died, according to the satute 19 Car. 2, c. 6, with respect to leases dependent on lives, and also according to the statute of bigamy (1 Jac. 1, c. 11.) the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be liv ing. Therefore, in the absence of all other evidence to shew that he was living at a later period, there was fair ground for the jury to presume that he was dead at the end of seven years from the time when he went to sea on his second voyage, which seems to be the last account of him. That was about the year 1778; which would carry his death to about 1785.

LAWRENCE, J. Upon the death of the father Thomas Jesson, in 1777, the right descended to John, the son, then under age, who died under that disability. The lessor Frances is the heir of John; and the statute gives to the party to whom a right of entry accrues, and who is under a disability at the time, 10 years after the disability removed, notwithstanding the 20 years should have elapsed after his title first accrued; and to his heir the statute gives 10 years after the death of such party dying under the disability. Here more than 10 years had elapsed after the death of the brother before this ejectment was brought. It appears probable enough, upon looking into the case of Stawell v. Lord Zouch (a), that the word death was introduced into the sta tute of James, in order to obviate the difficulty which had arisen in that case upon the construction of the statute of fines, 4 H. 7, c. 24, for want of that word.

Grose and Le Blanc, justices, assenting,

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