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value whatever, which is equivalent in substance to an allegation that they are not of the value of 267., or any part thereof.

We therefore think that the substance of the issue is, whether the demised tenements were worth any thing, and that issue ought, on the facts, to be found for the plaintiff. If they are of any value whatever, the plea is falsified, for it constitutes no defence to the action for the whole rent unless they are of no value. Rule discharged.

The KING v. The Inhabitants of LEEDS.

Under the statute 33 G. 3, c. 54, s. 24, (which is in substance the same as 12 Ann. st. 1, c. 18, s. 2,) an apprentice bound to a person residing in a parish under a certificate, cannot gain a settlement by such apprenticeship, though the certificate be subsequently discharged, and he afterwards continue to serve his master in the parish for forty days. The binding, to confer a settlement, must be such as would, at the time, be effectual for that purpose.

ON appeal against an order of two justices, whereby Nathaniel Bowles, his wife and children, were removed from the township of Horton, in the West Riding of Yorkshire, to the parish of Leeds, in the same Riding, the sessions confirmed the order subject to the opinion of this Court on the following case:The pauper's father was settled in Leeds. In 1809 *the pauper, being about thirteen years of age, was bound apprentice by his father for seven [249* years to Joseph Fox, shoemaker, who was then residing in Horton, under a certificate from a Friendly Society. Four years after the indenture was made, Fox took a farm for a year in Horton at 407., which he occupied for the year. The pauper continued to serve his master for seven years from the date of the indenture. The sessions, being of opinion that the pauper had not gained a settlement by such apprenticeship, confirmed the order. The case was argued in the course of this term.

Blackburne and Milner in support of the order of sessions. Under the statute 33 G. 3, c. 54, s. 24, (a) no settlement was gained by this apprenticeship. For that purpose, the binding ought to be to a master who is at the time capable of communicating a settlement. By 3 W. & M. c. 11, s. 8, binding and inhabitation confer the settlement: if the master is not settled at the time of the binding, his becoming so afterwards will not enure to render it valid. This is clearly to be inferred from Rex v. Hinckley, 4 T. R. 371. Lord Kenyon there, referring to 12 Ann. stat. 1, c. 18, s. 2, (which is similar to the clause in question of 33 G. 3,) says, it is necessary that the binding should be such as would confer a settlement by service under the master, "for the legislature intended that no act whatever of this sort done by a certificated man should help to bind the parish." In Rex v. Manningtree, 6 M. & S. 214, the son of a certificated person was bound apprentice, before he came of age, to a master *living out of the parish; and after coming of age, he slept more than forty nights [ 250* in the certificated parish, while serving under the apprenticeship. There was a sufficient inhabitation in the parish after he was emancipated, to have conferred a settlement, but the binding was before: and the Court held, on that account, that no settlement was gained. In Rex v. Great Driffield, 8 B. & C. 684, the present question was raised, but not decided. Rex v. Nacton, 3 B. & Ad. 543, decided last term, is no authority in favour of this settlement, for there the master had taken a tenement in the certificated parish at the time of the binding, and was then irremoveable.

(a) The material part of the clause is given in the judgment. The act is now repealed. See 10 G. 4, c. 56.

Sir G. A. Lewin and Baines, contrà. A settlement was gained by this service. In St. Maurice v. St. Mary Calendars, Winchester, Burr. S. C. 27, which was a case under 12 Ann. stat. 1, c. 18, s. 2. Lord Hardwicke stated the question to be, "whether the apprentice of this man (a certificated person) gained a settlement in St. Mary's by serving an apprenticeship to him there." After reading the words of that statute, "and not having afterwards gained a legal settlement in such parish," he added, "which brings it to this question, whether the master had by any act discharged the certificate, and gained a settlement in the parish into which he came by certificate." In Ivinghoe v. Stonebridge, 1 Stra. 265, the pauper was bound to a certificated person, who subsequently bought an estate in the parish, whereby the certificate was discharged, and the apprentice afterwards served him six months: the facts happened before *251] the statute of Anne, but the Court held, that even if they had *occurred since that act, the apprentice would have gained a settlement. Rex v. Nacton, 3 B. & Ad. 543, is an authority in favour of this settlement. If the apprentice himself, in the present case, had been a person included in a certificate, the question would have been different; his gaining a settlement might have been contrary to the express words of 9 & 10 W. 3, c. 11, which provides that no person who shall come into any parish by a certificate, "shall be adjudged by any act whatsoever to have procured a legal settlement in such parish," unless by taking a tenement of 101. value, or executing an annual office: and, on this ground, Rex v. Manningtree, 6 M. & S. 214, may be distinguished from the present case. But there are no corresponding words in 33 G. 3, c. 54, s. 24, applicable to the apprentice of a certificated person, the apprentice himself not being so. In Rex v. St. Peter's, Derby, 1 T. R. 218, the pauper was bound to a certificated man, who afterwards removed into a different parish, under a new certificate; but the pauper served him more than forty days after that time in the original parish; and it was held, that the pauper gained a settlement there by such service, the certificate to that parish having been discharged.

Cur. adv. vult. DENMAM, C. J. on a subsequent day of the term, delivered the judgment of the Court.

The question in this case was, whether a pauper had gained a settlement in the parish of Horton. The pauper was bound apprentice to a master who was *252] at that time residing at Horton, under a certificate from a *friendly society, but before the term of apprenticeship expired the master gained a settlement in Horton by renting a tenement, and the pauper served him under the indenture of apprenticeship more than forty days after that time.

The question turns upon the proper construction of the 33 G. 3, c. 54, s. 24, by which it is enacted, "that no person who shall be an apprentice bound by indenture to any person who did come into or shall reside in any parish, township, or place under the authority of this act, and not afterwards having gained a legal settlement in such parish, township, or place, shall gain or be adjudged to have any settlement in such parish, township, or place, by reason of such apprenticeship or binding; but all such apprentices shall have their settlements. in such parish, township, or place, as if they had not been bound; any act or acts of parliament to the contrary notwithstanding." These words are copied nearly verbatim from 12 Ann. stat. 1, c. 18, s. 2, which act has received a judicial construction in the case of Rex v. Hinckley, 4 T. R. 371, by which case we think we are bound.

That case differs from the present in one circumstance only, viz. that in that ease the pauper having been bound to a certificated man, was afterwards assigned to another person in the same parish who was under no disability; whereas here the pauper continued with the original master after his certificate was discharged. But the reasons given by Lord Kenyon, in delivering the judgment of the Court, which was evidently much considered, apply to the present case as

much as to that, and we cannot decide in this case that the *pauper

gained a settlement without over-ruling Rex v. Hinckley, 4 T. R. 371. [*253

The words of the statute are plain; that an apprentice bound to a man who did come into or shall reside in a parish under a certificate, and not afterwards having gained a settlement, shall not by such apprenticeship or binding gain a settlement in that parish, but shall be as if he had not been bound. Now the words "not afterwards having gained a settlement," are grammatically to be referred to the preceding words "come into or reside," and manifestly point to the situation of the master at the time of the binding. If the master be residing under the certificate at the time of the binding, no settlement can by possibility be acquired by the apprentice in the certificated parish, notwithstanding a subsequent removal of the master's disability; but it is otherwise if the binding is after the discharge of the certificate, where the master has gained a settlement in the certificated parish. Lord Kenyon says, "it is necessary that the binding should be such as would be capable of conferring a settlement by service under the original master in that place, otherwise no settlement can be gained there by virtue thereof; for the legislature intended that no act whatever of this sort done by a certificated man, should help to bind the parish." Here, according to this opinion, the binding was not, at the time it took place, such as would be capable of conferring a settlement, nor could any subsequent circumstances make the binding more efficacious, whatever effect they might have on the service: the *consequence is, that the pauper remained as if he had not been bound, and gained no settlement in Horton.

[*254 The case of Ivinghoe v. Stonebridge, 1 Str. 265, was pressed in argument, but in that case the service expired before the passing of the statute of Anne, and besides, the original binding was not to a certificated person, and was free from all objection.

The case of Rex v. St. Peter's, Derby, 1 T. R. 218, was also pressed. It is sufficient to say, that in that case the present question was not presented to the Court, but it was decided without argument, on the sole point, whether one certificate was discharged by the granting of another; and the case was also prior to Rex v. Hinckley, 4 T. R. 371.

Neither does our opinion militate against the case of Rex v. Nacton, 3 B. & Ad. 543, decided in Easter term last; for that case proceeded entirely on the ground that the master never did reside under the certificate, but came into the parish in a condition to obtain a settlement.

Upon the whole we are of opinion that the case of Rex v. Hinckley must govern the present decision, and that the order of sessions must be affirmed. Order of sessions affirmed.

*GODSON v. SANCTUARY. Nov. 20.

[*255

A fieri facias was sued out on a judgment entered up under a warrant of attorney, and the sheriff seized the goods before ten in the forenoon of 13th of August, and sold the same ten days afterwards. On the 13th of October following, about noon, a commission issued against the defendant, under which he was declared a bankrupt: Held, first, that the seizure of the goods by the sheriff was a sufficient executing or levying, within the meaning of those words in the statute 6 G. 4, c. 16, s. 81; secondly, that more than two calendar months had elapsed between the execution and the issuing of the commission; thirdly, that although the execution issued on a judgment entered up in pursuance of a warrant of attorney, yet, having been executed more than two months before the issuing of the commission, it was protected by s. 84, and not taken out of that section by the proviso in s. 108. Semble, that that proviso only applies to executions executed within two calendar months before the issuing of a commission.

ACTION on the case against the defendant as sheriff of Sussex, for a false

return of nulla bona to a writ of fi. fa., issued at the suit of the plaintiff against the goods and chattels of one A. Weller. Plea, not guilty. At the trial before Lord Tenterden, C. J., at the Middlesex sittings after Trinity term 1832, the jury found a verdict for the plaintiff for 1707. 10s., subject to the opinion of this Court on the following case:

On the 12th of August, 1830, a judgment was signed on a warrant of attorney (dated the 4th of the same month) by the plaintiff against A. Weller, and on the same day a fieri facias was issued thereupon, directed to the defendant as sheriff of Sussex, indorsed to levy 1707. 10s., besides, &c., and was delivered to the defendant to be executed; and he issued his warrant, in pursuance of which the sheriff's officer, shortly before eleven o'clock in the forenoon of the 13th of August, entered the premises of Weller and took possession of his goods. He remained ten or twelve days, holding such possession, and then sold under the writ sufficient of such goods to raise the above sum of 1707. 10s., poundage and expenses, and received the amount.

On the 13th of October, 1830, about twelve or one o'clock in the afternoon, *256] a commission of bankrupt issued against Weller, under which he was duly found and declared a bankrupt. The act of bankruptcy had been committed some time in June, 1830. The assignees having indemnified the sheriff, the money was paid over to them, and the defendant made his return as above stated.

Hutchinson for the plaintiff. The plaintiff, the execution creditor, is entitled to recover, because his execution was levied more than two months before the issuing of the commission, and is therefore protected by 6 G. 4, c. 16, s. 81, which enacts, "that all executions against the goods and chattels of such bankrupt bonâ fide executed or levied more than two calendar months before the issuing of such commission, shall be valid, notwithstanding any prior act of bankruptcy by him committed." It may be said, first, that the seizure of the goods by the sheriff was not an executing or levying within the meaning of that act; but when the sheriff entered and seized the goods, the property was divested out of the bankrupt and vested in the sheriff, so that he might sell, even after he was out of office, Clarke v. Withers, 2 Ld. Raym. 1072. [PATTESON, J. It was held by a great majority of the Judges in Giles v. Grover, 9 Bingh. 128, that the property of the goods seized in execution is not out of the bankrupt until sale.] The plaintiff might have compelled the sheriff to sell, and was entitled to a priority. Stead v. Gascoigne, 8 Taunt. 527, could not have been decided as it was if that were not the law. In Sadler v. Leigh, 4 Campb. 195, the point was not taken; there was no sale in that case, and if the doctrine to be *2571 contended for on the part of the *defendant is right, the question on the fraction of a day could not have arisen. [PATTESON, J. As between the plaintiff in the execution and the sheriff, the latter may be called upon, after seizure, to return the writ, though the property may not be divested out of the debtor. PARKE, J. This execution was founded on a judgment entered up on a warrant of attorney. Does not the proviso in section 108, prevent the plaintiff from receiving more than a rateable part of his debt?(a)] Here, the plaintiff is not a party seeking a benefit under the commission: he was not within the 108th section as a creditor who, at the time of the bankruptcy, had security for his debt. On this point Wymer v. Kemble, 6 B. & C. 479, is an authority.

(a) By that section it is enacted, "That no creditor having security for his debt, or having made any attachment in London, or any other place, by virtue of any custom there used, of the goods and chattels of the bankrupt, shall receive upon any such security or attachment more than a rateable part of such debt, except in respect of any execution or extent served and levied by seizure upon, or any mortgage of or lien upon any part of the property of such bankrupt before the bankruptcy: provided that no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors."

There an actual sale of the goods had taken place before the bankruptcy; here it had not; but the seizure by the sheriff was two months before the commission issued.

As to the question, whether two months had elapsed between the levying of the execution and the issuing of the commission, the authorities establish that where time is to be computed from an act done, the day on which the act is done is to be included in the computation, Rex v. Adderley, Doug. 463, Castle v. Burditt, 3 T. R. 623, *Glassington v. Rawlins, 3 East, 407, Cowie v. [*258 Harris, 1 M. & M. 141; but upon this point Ex parte Farquhar, 1 Montague & Mac. 7, is decisive. According to these cases, the two months would not include any part of the 13th of October. But the fraction of a day will be noticed if necessary, Thomas v. Desanges, 2 B. & A. 586, Sadler v. Leigh, 4 Campb. 195; and at all events, more than two months had elapsed between eleven o'clock of the forenoon of the 13th of August, and twelve o'clock at noon of the 13th of October.

W. Clarkson, contrà. It must be conceded, since the case of Giles v. Grover, 9 Bingh. 128, that the seizure of goods under a fi. fa. is a sufficient levying or executing withing the meaning of this statute; but, here, two months had not elapsed between the seizure and the issuing of the commission. The seizure took place on the 13th of August; the commission issued on the 13th of October. There cannot be three thirteenths in two months, and the day of the seizure must be excluded. It is true that in Cowie v. Harris, 1 M. & M. 141, where a commission issued on the 14th of May, Lord Tenterden held, at Nisi Prius, that a dealing on the 14th of March was not invalid as being less than two calendar months before the issuing of the commission, for he said that both days could not be reckoned inclusively, so as to make March the 14th not “more than two calendar months" before May the 14th, the date of the commission. But that opinion is at variance with the decision of the Court of King's Bench in Hardy v. Ryle, 9 B. & C. 603, which was an action against a justice [*259 for false imprisonment; the plaintiff there was discharged from prison on the 14th of December, and the writ in the action issued on the 14th of June, and it was held, that the action was brought within six calendar months after the act committed. But assuming this point to be against the defendant, the plaintiff is not entitled to recover, because he was a creditor having security for his debt; and he, therefore, is to receive only a rateable proportion of such debt. In Wymer v. Kemble, 6 B. & C. 479, there was a sale completed before the act of bankruptcy. Notley v. Buck, 8 B. & C. 160, is in point: there the goods were seized before, but not sold till after, the act of bankruptcy; and it was held that the sheriff was not justified in paying over the money to the execution creditor, but that it belonged to the assignees.

Hutchinson in reply. The plaintiff was not a creditor having security for his debt at the time of the bankruptcy, for the sale took place before the commission issued. The case is clearly within the eighty-first section, and the execution creditor is entitled to the property levied by seizure two months before the issuing of the commission, unless that right is divested by sect. 108. There are no express words taking away the right given by sect. 81, and that section being clear and distinct, ought not to be controlled by a subsequent one which is ambiguous.

DENMAN, C. J. The question submitted to the Court is, whether the execution was levied more than two months before the issuing of the commission, within *the meaning of the 6 G. 4, c. 16, s. 81. We may assume that the ex[*260 ecution was bona fide, the contrary not being imputed. The first point adverted to by the counsel for the plaintiff has been very properly abandoned by the defendant's counsel; for after the decisions which have taken place on the subject, it would be impossible to contend that the seizure by the sheriff in this case was not a levying within the act. (See Wray v. Lord Egremont, ante, 122.) Another question is, whether two calendar months elapsed between the levying

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