CHAP. IX. Court, to recover the value of any Tithes, unless such action STATUTES OF shall be brought, or such suit commenced, within six years from the time when such tithes became due. (g) LIMITATIONS. 7. Limitation of suits in the Ad 7. Suits in the Admiralty Court for Seamen's Wages not having miralty Courts. been provided for by, nor construed to be within any prior act, (r) it was enacted by the 4 Ann. c. 16, s. 17, that all suits and actions in the Court of Admiralty for seamen's wages shall be commenced and sued within six years next after the cause of such suit or actions shall accrue, and not after, with a proviso in favour of persons beyond sea, and infants, &c. as before mentioned, relating to personal actions. 8. Indictments and Summary crimes before magistrates. 8. In general there is no limitation of Indictments or Criminal proceedings for Proceedings, which being on the behalf of the king are not considered to be actions or suits within the meaning of these acts. (s) And there have been instances of conviction and capital punishment even for murder more than twenty years after the offence was committed, (t) and no length of time can legalize a public nuisance; (u) but the long continuance of a public nuisance, though not strictly a bar to a criminal proceeding, may nevertheless be strong ground for urging, and for a jury's presuming that it was originally no nuisance, and that it became so only by persons voluntarily becoming inhabitants in the neighbourhood, for otherwise why has it been suffered so long to continue? (x) There are, however, some express limitations, as three years for prosecution for treason, unless against the king's life, (y) and some other instances. (~) With respect to Small Offences, over which summary jurisdiction has been given to justices and others, the modern acts generally limit the times of the proceeding. Thus the larceny act, (a) the wilful and malicious trespass and injury act, (b) the act against wilful or malicious injuries to the person, (c) and the act for protection of game, (d) and against an hundred, (e) require the summary proceeding to be commenced within three calendar months. (q) 53 Geo. 3, c. 127, s. 5, ante, 762 ; and Talory v. Jackson, Cro. Car. 513. (r) Ewer v. Jones, 3 Salk. 227; 2 Lord (s) 2 Hale, 158; Burn, J. Indictment. 305, n. 2. (u) Weld v. Storney, 7 East, 199; Rex v. Cross, 3 Campb. 227; Rex v. Smith, 4 Esp. R. 109; but see semble, contrà, Rex v. Neville, 1 Peake, C. N. P. 91. (s) Not attending church, &c. 1 East's P. C. 18, 186, 187; Indictments on Penal Statutes, 31 Eliz. c. 5; and see Russ. & R. C. C. 639. (a) 7 & 8 Geo. 4, c. 29, s. 64. LIMITATIONS. In cases when the time for adopting a civil remedy for an CHAP. IX. injury has expired, if the injury were also indictable, then the STATUTES OF party may still be punished by indictment, although, after a considerable lapse of time, it would scarcely be expedient to institute such proceeding. An exception might occur, as that of a person holding a foreign situation having been libelled just before he left England, and he did not hear of it for more than six years after, or could not conveniently bring his action before his return, and yet in that case the statute would run against a civil action, because he was actually in England at the time the libel was published. In such a case he might with propriety indict for the libel, and thus prevent the calumniator from totally avoiding punishment. statutes of li 9. Although in all cases affected by the statute of limitation, 9. Consequences they impliedly authorize and enable a party to sue at any time of Laches, or great lapse of within the prescribed periods, yet if he wait till the last moment time indepenhis claim will frequently not be favoured, but treated by a court dently of the and jury as stale, especially in cases of injury to character mitation. (ƒ) or feeling. Other cases also occur not affected by the statutes of limitations, and when it will be found that, as well at law as in equity, and in the Admiralty, Spiritual, and other courts, laches or great lapse of time will at common law prejudice, and sometimes operate in bar of a remedy which it is discretionary and not compulsory in the court to afford. Thus in Courts of Common Law a motion for an Irregularity in the proceedings must be made in the first instance, or it will be too late to object; (g) and motions for Criminal informations against a magistrate for misconduct in the execution of his office, ought in general to be moved for within the first term after the supposed offence, though, where no assizes have intervened, it may be moved for in the second term, provided it be not so late in the term as to preclude the magistrate from the opportunity of showing cause against it in the same term; (h) and where twelve months have elapsed, the court will not interfere, but leave the party complaining to indict, though he only recently became acquainted with the crime. (i) And, though the rules observed by the court respecting the time of moving for a cri (f) See in general the observations in White v. Parnther, Knapp's Rep. 226. (g) Ballantyne v. Wilson, Forrest's Rep. 51; Wickham v. Mealing, 2 Price R. 9; Chitty's Prac. 96 to 99, 381; Dalton v. Barnes, 1 M. & S. 230; D'Argent v. Vi vant, 1 East, 330; Shauman v. Whalley, (h) Rex v. Smith, 7 T. R. 80; Rex v. (i) Rex v. Bishop, 5 B. & Ald. 612. STATUTES OF LIMITATIONS. CHAP. IX. minal information apply in strictness only to magistrates, a prosecutor should in every case bring his accusation before the court as early as possible, because any delay which he is unable to explain will operate greatly to his prejudice, and sometimes even induce the court to refuse the application. (j) These are only a few of the very numerous instances in which delay will prejudice at law, independently of any statute of limitation, and which will be noticed in the next volume. (k) In Courts of Equity also delay will generally prejudice; thus if there be laches in seeking relief where a Trustee has purchased the trust property, (1) or otherwise to impeach a sale by him, (m) or in applying to the court for Specific performance of an agreement, (n) the court will refuse the required relief. In the latter case Lord Alvanley held, that a party cannot call upon a Court of Equity for a specific performance, unless he has shown himself" ready, desirous, prompt, and eager." (o) And we have seen instances where even a day or two's delay in filing a bill or moving for an injunction, would induce the court to refuse it. (p) But a party's resting or remaining in possession passive and contented upon an equitable without clothing himself with the legal title has never been held to be such laches as to preclude relief, or enforce specific performance of an express or implied contract to convey the legal title. (q) And we have seen, that in cases of fraud, it suffices in equity if the party defrauded seek his remedy there within the statutory limitations after he has discovered the fraud and the cause of complaint; (r) and Courts of Equity, in cases not within the positive enactment of the statutes, consider the absence abroad of the claimant, whilst serving in the army, a reasonable excuse for delay. (s) (j) Rex v. Robinson, 1 Ela. R. 542; Rex v. Bishop, 5 B. & Ald. 612. (k) And see ante, 737, 738, and next chapter as to the time of applying for a Mandamus or Bill for Specific Performance; and Rer v. Cockermouth, 1 Bar. & Adolp. 378; and infra, notes (1), (m), (n). (1) Webb v. Rooke, 2 Sch. & Lef. 672; Campbell v. Walker, 5 Ves. 678; Whithcote v. Lawrence, 3 Ves. 740, but see Attorney-General v. Dudley, Coop. 146; 1 Mad. Ch. Pr. 114. 59. (m) Chalmer v. Bradley, 1 Jac. & Walk. (n) 1 Mad. Ch. Pr. 415, 416. (0) Milward v. Earl Thanet, 5 Ves. 720, and see Guest v. Hunfray, 5 Ves. 818, and 1 Madd. 415 to 418, for instances where relief was refused. (p) Ante, 717, note (q), and 719, (b). (4) Crofton v. Ormsley, 2 Sch. & Lef, 604. CHAP. X. SPECIFIC REMEDIES, &c. CHAPTER X. OF THE REMEDIES TO COMPEL SPECIFIC RELIEF OR PERFORM ANCE, AND IN PARTICULAR OF WRITS OF MANDAMUS AND BILLS FOR SPECIFIC PERFORMANCE. Of Specific Relief in general, and when, and how, and in what court to IN the preceding chapters our attention has been confined to the Prevention of Injuries, and although we have examined the cases where a party may escape, or be rescued, or may retake his wife, his child, or his personal or real property, and may be obtained, remove imprisonment by habeas corpus, we have not as yet whether as regards the perfully considered the other numerous instances in which a party son, or personal may obtain Specific Relief or Specific Performance. We will, or real property. therefore, in this chapter suppose, that an injury or breach of contract is complete, and that the party injured would prefer specific relief or performance in preference to mere Compensation in damages or punishment. It will be obvious that, in many cases a party injured would prefer to be restored to precisely the same situation in which he stood before the injury was committed, or to be placed in that which another party, for valuable consideration, has engaged he should be, and that when that is practicable, it is the best measure of justice to enforce it, and that the merely giving damages in lieu of the restoration of the person of the relative, or of the chattel, or the land, would be very inadequate, and encourage the rich and powerful by force or fraud to take from the poor his property, and then merely to pay him the value. In general the common law action of Detinue or Replevin enables the owner to recover possession of the specific chattel wrongfully detained, and a Court of Equity will, upon a bill filed, also compel the delivery of an heir-loom or specific legacy, and compel the performance of certain substantial contracts, such as a contract to convey land, &c. These are only a few instances, and it will be necessary fully to examine the general principles and rules, and some of 3 F VOL. I. SPECIFIC CHAP. X. the leading instances in which courts will interfere and afford REMEDIES, &c. specific remedies. It seems expedient to arrange the subject as in other instances, viz. as relates to 1st, The Person, and Personal Rights absolute and relative. 2dly, Personal Property and Contracts. And 3dly, As regards Real Property: under each considering the specific remedy at Law, then in Equity, then in the Ecclesiastical and Spiritual Courts, and lastly in the Admiralty or Prize Courts. But as regards the remedy by Mandamus at law, or by bill for specific performance in equity, these being of great practical importance, will be fully con I. Respecting the person, absolute and rela tive. sidered. I. As respects the Person and the absolute rights, the specific remedy for false imprisonment, we have seen, is a writ of Habeas Corpus, or summary application for release from imprisonment. But there are some few private rights, principally of the person, the violation of which may be remedied by writ of Mandamus, the nature and application of which will be presently stated. As respects the Relative rights of Persons, we have seen in what instances Courts of Law or Equity will interfere to afford specific relief, viz. restoration of the Person of the Relative, whether wife, child, apprentice, or servant, and which is usually by writ of Habeas Corpus. (a) But a guardian may obtain restoration of his ward by petition, without filing a bill. (b) Formerly also a contract to marry might have been specifically enforced, but at length the legislature wisely considering that the greatest misery would probably ensue from a forced union, enacted that no bill in Equity, or suit in the Spiritual Court, shall be sustainable to compel marriage, (c) and the party complaining of a breach of such engagement can only sue at law for damages; and even then the contract is considered so personal, that the executors of a female, to whom a promise of marriage has been made, cannot sue, and the remedy dies with the person. (d) But if the contract of marriage has been legally completed, according to the lex loci, where the ceremony was performed, then the Ecclesiastical or Spiritual Court will enforce specific observance of the resulting duties, by entertaining a suit at the instance of the husband or the wife, for the restitution of conjugal rights; and though, in fact, there is no pos (a) Ante, 684 to 695. (b) Wright v. Naylor, 5 Madd. R. 77; 1 Newl. Ch. Pr. 211. (e) 4 Geo. 4, c. 76, s. 27; 1 Bla. Com. 433. (a) Chamberlain v. Williamson, 2 Maule & Selw. 498. |