months after the execution. Upon this point Ex parte Farquhar, 1 Mont. & Mac. 7, adjudged first by the Vice-Chancellor *Sir J. Leach, and afterwards by Lord Lyndhurst, is decisive. Substituting for "two calendar [*263

months" the words "one day before the issuing of the commission," the case will be clear. As the 13th of August would be one day before, any time on the 14th of August would be more than one day. Besides, if here the fraction of a day be taken into account, (as it may be,) it would appear that more than two calendar months had elapsed between the time of the seizure and the issuing of the commission, that is, between eleven o'clock of the forenoon of the 13th of August, and twelve o'clock of the 13th of October, because sixty-one complete days, which are the two calendar months, would have elapsed by eleven o'clock of the 13th of October, and the commission did not issue till twelve or one o'clock of the afternoon of that day. Making the computation either way, the commission issued more than two calendar months after seizure, which is sufficient to entitle a creditor to a preference under this clause.

The next question is, what is the effect of sect. 108? It appears to me that section 81 applies to all executions levied more than two months before the issuing of the commission, whether founded on judgments after verdict or on judgments by default or confession, the words of that section being general, and not in any way limited or qualified; and that the 108th section applies only to executions on judgments by default or confession, or nil dicit, where the seizure has taken place within the two calendar months before the issuing of the commission. That construction will reconcile the two sections of the act. The 108th section, however obscure in its terms originally, has now received a judicial construction which makes it tolerably clear. *The creditor who has issued execution on a judgment after verdict, though within the two months, is entitled to a preference if the seizure was before an act of bankruptcy; but where the judgment is by default or confession, then, to entitle the creditor to a preference, there must have been a sale as well as a seizure.(a)

[*264

TAUNTON, J. I am of the same opinion. There is abundance of authority to show that the law will advert to the fraction of a day; and that being so, the only question is, whether more than two calendar months did not elapse between eleven o'clock of the 13th of August and twelve at noon of the 13th of October. Now Lord Holt, in an anonymous case in 1 Salk. 44, (reported, 2 Ld. Raym. 1096, as Fitzhugh v. Dennington,) says that it has been adjudged, (Herbert v. Torball, Keb. 589; Sid. 162,) that if one be born the 1st of February, at eleven at night, and the last of January, in the 21st year of his age, at one of the clock in the morning he makes his will of lands, and dies, it is a good will, for he was then of age. Then, if he become of age on the 31st of January, he of course must be above the age of twenty-one on the 1st of February. It follows by analogy, therefore, that more than two calendar months had elapsed at the time when this commission issued.

The next question is, whether the execution, notwithstanding the proviso of the 108th section, be within the protection of the 81st. The language of that section is very general, and applies to all executions whatever, executed two months before the issuing of the commission. This exccution, therefore, [*265 is within its protection, unless it is expressly taken out of it by section 108. That section appears to me to apply to executions issued within two calendar months, or, in other words, to such executions as are not protected by section 81; and if that be so, it is unnecessary to consider the cases in which a judicial construction has been put upon section 108. If that section were not limited by the eighty-first, there would be no period of limitation whatever; an execution issued on a judgment founded on a warrant of attorney, would be liable to be disturbed at the distance of many months, or even years, by an act

(a) See Wymer v. Kemble, 6 B. & C. 479; Notley v. Buck, 8 B. & C. 160. Also Crosfield v. Stanley, ante, 87.

of bankruptcy. It appears to me that the eighty-first section was intended to interpose a sort of statutable regulation, and to establish that where the two months had not begun, the execution should, in all cases whatever, be protected. I am of opinion, therefore, that the sheriff made a false return, and that the plaintiff is entitled to recover.

PATTESON, J. I am of the same opinion. There are three questions: first, whether, by the seizure of the bankrupt's goods, the execution can be said to have been executed or levied; secondly, if so, whether or not the two calendar months had elapsed between the 13th of August and the 13th of October; and, thirdly, whether section 108 applies to this case. The first point has been abandoned on the argument for the defendant, on the supposition that it was adjudged in Giles v. Grover, 9 Bingh. 128; but the point there decided was, *266] that by seizure under an execution, the property was not divested out of the defendant in the execution. It was there pressed very much in argument, that by a seizure of the goods, an execution was always considered executed within the meaning of the 21 Jac. 1, c. 19, s. 9, and consequently that the property in the goods was thereby divested out of the debtor. But although it was admitted that ever since that statute the law had been, that by seizure the execution was executed, the consequence attempted to be deduced from it, that as soon as the seizure took place the property was divested out of the debtor, was denied. I think that never was the law. At all events, if it ever was so held, the contrary was decided in Giles v. Grover, 2 Bingh. 128. As to the second question, I entirely agree with my Lord, that if there had been no decision on the point, the language of the act requires that the precise time when the execution was executed, and the precise time at which the commission was issued, must be ascertained; and the case of Ex parte Farquhar, 1 Mont. & Mac. 7, is quite decisive, that more than two months had elapsed in the present case, between the 13th of August and the 13th of October.

With respect to the third question it is sufficient to say that sect. 108, in my judgment does not apply to any case protected by sect. 81, and that makes it unnecessary to consider the propriety of the decisions which have taken place on sect. 108, which I believe has given occasion, within a few years, to more litigation than any section in any act of parliament ever did.

Judgment for the plaintiff.

Goods and freight were insured at and from Liverpool to Monte Video and Buenos Ayres if open, or the ship's final port of discharge in the River Plate, with liberty to wait two months at Monte Video if needful, at a premium of five guineas per cent., to return 21. per cent. for risk ending at Monte Video on arrival. The vessel arrived on the 2d of August at Monte Video, which was then blockaded by an enemy's fleet to prevent vessels passing to Buenos Ayres. The blockade did not cease till the 4th of October. The vessel afterwards sailed for Buenos Ayres, and was lost: Held, that the risk was at an end as soon as the vessel had staid two months at Monte Video, and that the underwriters were, therefore, discharged.

ASSUMPSIT on a policy of insurance upon goods and freight by the ship Triton, at and from Liverpool to Monte Video and Buenos Ayres if open, or her final port of discharge in the River Plate, (with liberty to wait two months at Monte Video if needful,) at a premium of five guineas per cent., to return 27. per cent. for risk ending at Monte Video on arrival. The declaration averred a total loss by the perils of the seas. At the trial before Lord Tenterden, C. J., at the Middlesex sittings after Trinity term 1831, the jury found a verdict for the plaintiff, subject to the opinion of this Court on the following case:

The plaintiff was master and owner of the ship Triton, and being about to

proceed upon the voyage after mentioned, caused the policy in question to be effected. The plaintiff sailed on board the Triton from Liverpool for Monte Video and Buenos Ayres, with a cargo, (consisting partly of goods of his own,) on the 7th of May, 1828. The vessel arrived on the 2d of August at Monte Video, at which time there was a war between the government of the Brazils and that of Buenos Ayres, and a blockading squadron of the Brazilian govern. ment was stationed off Monte Video, between that port and Buenos Ayres, to prevent vessels sailing up the river to Buenos Ayres; but negotiations were pending, and a peace was shortly expected. The plaintiff having discharged part of his cargo at Monte Video, and taken in ballast and some goods for Buenos Ayres, took a convenient position for sailing, and was ready to sail for Buenos Ayres on the 28th of September, and would have proceeded thi[*268 ther, but that he was prevented as after mentioned. Intelligence arrived at Monte Video on the 12th of September, that peace had been made; but peace was not ratified until the 30th of September, and intelligence of that event was received at Monte Video on the 4th of October, on which day the blockade was raised and until that day, the squadron remained off Monte Video, and no vessels with cargoes were allowed to clear out for Buenos Ayres. Those vessels which did sail were in ballast, and were cleared out for Valparaiso. On the 2d of October, notices were stuck up at the Mole Head and at the custom-house, that no vessels should leave Monte Video for Buenos Ayres without the payment of certain duties, as well upon the goods on board, as upon the goods landed, and from ten to fifteen days was the period fixed for such payment. The master (the plaintiff), on the 2d of October applied to the consignees of his ship, as well as to other persons on shore, to pay the duties on his cargo, but without effect. On the 5th of October the plaintiff, taking advantage of a fog, clandestinely sailed from Monte Video for Buenos Ayres without having paid the duties: he arrived in the outer roads on the 6th of October, and, on the following day, in the inner roads, where the vessel was sunk with the goods insured on board. The defendant paid into Court 2 per cent. as a return of premium for risk ending at Monte Video. The question for the opinion of the Court was, whether, under the terms of the policy, the risk was determined by the stay of the plaintiff for more than two months at Monte Video? If the Court should be of opinion that it was, then a nonsuit was to be entered; if otherwise, a verdict for the plaintiff for such sum as an arbitrator should award.

[*269

The case was argued during the present term. Kelly for the plaintiff. The risk was not determined by the stay of the ship at Monte Video (though for more than two months), under the very peculiar circumstances of this oase. The waiting having been occasioned by the blockade, was not one contemplated by the policy in limiting the specified time to two months. The instrument must be construed so as to carry into effect the intention of the parties. Giving the construction contended for by the defendant, will have the effect of determining the risk, under whatever circumstances the staying longer than two months occurred. The intention of the parties, when they introduced into the policy the liberty to stay two months, was to substitute that express stipulation for the one which the law would otherwise imply; that the vessel should not wait more than a reasonable time. If there had been no express liberty to stay two months reserved by the policy, but a mere liberty to touch, and the vessel, having arrived at Monte Video, had been detained by a superior force for a considerable period, that would not have determined the risk; and if not, why should the express reservation of a liberty to stay two months have that effect?

Maule contrà. The policy must undoubtedly be construed so as to give effect to the intention of the parties, but that intention (collected from the language of the instrument) was, that the risk should determine as soon as the vessel had remained two months at Monte Video. The voyage described

[*270

in the policy is "from Liverpool to Monte Video and Buenos Ayres if open, or her final port of discharge in the river Plate, with liberty to wait two months at Monte Video, if needful." The words if needful are construed by the plaintiff to mean "if the blockade continues;" but that is not their meaning. If the vessel had been at liberty to stay a reasonable time, that would have imported a liberty to stay as long as there was a detention by embargo. The vessel was not under restraint at Monte Video. She might have gone from thence, though not to Buenos Ayres. This case is something like Browne v. Vigne, 12 East, 283. There the ship was insured "from London to any port or ports in the River Plate, until her arrival at her last port of discharge in the River Plate;" and the master, intending to discharge her carge at Buenos Ayres, passed Maldonado; but hearing that Buenos Ayres was then in the hands of the enemy, he went to Monte Video, with intent to make a complete discharge there if the market were suitable: he discharged a part, but not finding the market there so favourable as he expected, he had not abandoned his original intention of going to Buenos Ayres, if it should afterwards be practicable; while however, he was still discharging part of his carge at Monte Video, Buenos Ayres continuing in the enemy's hands, a loss happened by a peril of the sea. It was held that the voyage ended at Monte Video. The effect of the leave to stay is in this case to put an end to the policy at the end of two months. It is in the nature of a warranty that the vessel shall not stay more than two months. Now a *warranty to sail on or before a particular day is not fulfilled if the ship does not completely unmoor on that day, though she then has cargo on board, and is quite ready to sail, and is only prevented doing so by stress of weather, Nelson v. Salvador, 1 M. & M. 309. The delay here was the cause of loss. Where a ship, being disabled by perils of the sea, put into port to repair, and the master was obliged to sell part of the goods to defray the expenses, that was held, (in an action on a policy on the goods,) not to be a loss by the perils of the sea, though they were the remote cause of it; the proximate cause being the want of funds to pay for the repairs, Powell v. Gudgeon 5 M. & S. 431, Sarquy v. Hobson, 2 B. & C. 7. If it be held that the underwriters are liable on the policy as long as Buenos Ayres was closed, they will be liable to a greater risk than the parties intended.

*271]

her

Kelly in reply. The words, "with liberty to stay two months at Monte Video," is not a warranty that the vessel shall not stay there longer than that time. In Brown v. Vigne, 12 East, 283, Monte Video was, at the time of the loss, the port of discharge. Here Buenos Ayres was the port of discharge at the time of the loss. Cur. adv. vult.

DENMAN, C. J. on a subsequent day in the term delivered the judgment ef the Court. The only question in this case is, what is the meaning of the words, "with liberty to wait two months at Monte Video if needful." To decide that, we must consider what the effect would be if those words were omitted.

The

272] *vessel might have sailed to Monte Video, and have discharged her cargo there, without going to Buenos Ayres, and in that case there would have been a return of 2 per cent. premium, in consequence of the risk having ended at Monte Video; or if, on her arrival at Monte Video, Buenos Ayres had been open, she might have sailed to that port. If, however, that port was not open, but under blockade, she would not have been at liberty to wait at Monte Video till the blockade was over. The clause in question enables the vessel to remain at Monte Video for two months. It seems to have been the intention, that if the blockade had ended sooner, she should proceed to Buenos Ayres; but at all events, she could not stay longer than two months at Monte Video; though, if she had sailed at the end of two months, she would have been protected by the policy. No other construction can be put upon this policy, framed as it is. In order to construe it as required by the assured, words must be introduced, and it must be read as if the liberty was to stay two months, or longer; but the latter words not being in the policy, we think that the vessel was at liberty to

stay two months and no longer at Monte Video; and she having staid longer, the risk was determined at the end of the two months, and the underwriters are discharged. Judgment for the defendant.

*The Duke of NEWCASTLE v. The Hundred of BROXTOWE.

Nov. 20.

[*273

In an action on 7 & 8 G. 4, c. 31, against the hundred of B., for the felonious demolition of Nottingham Castle by rioters, the plaintiff produced in evidence certain orders made by the justices at the quarter sessions for the county, in which the castle was described as being in that hundred. No proof was given that the justices who made those orders were resiants in the county: Held, that the orders were admissible as evidence of reputation, for that the justices, from the nature of their office, must be presumed cognizant of the subject.

It was proved by other evidence, that for nearly two centuries the castle of N. had been reputed to be within the hundred of B.

The defendants attempted to prove that the town of N. had been from the earliest period separated from any jurisdiction of, or connection with the adjoining hundreds, and for that purpose gave in evidence an extract from Domesday Book, in which the town was mentioned previous to the enumeration or description of the hundreds in the county, and various presentiments during the reigns of Ed. 1, Ed. 3, and Hen. 6, by the jurors of the town of N., of deaths within the castle and its precincts; and they produced a charter of Hen. 6, whereby the town of N. was made a county of itself, and the castle was specially excepted.

The Judge, after recapitulating all the evidence, told the jury that the excepting of the castle when the town was made a county, did not shew in what hundred the castle originally was; that the evidence of reputation given by the plaintiff was entitled to great weight, and that when things had gone on for two centuries in one uniform course, it was reasonable to infer that that course had prevailed from the earliest period, unless the evidence to the contrary was certain. It being objected that by this summing up too much weight was given to modern reputation, and too little to the ancient documents: Held, that the direction was proper.

Semble, that in assessing compensation for the demolition of a dwelling-house under 7 & 8 G. 4, c. 31, the jury ought to consider what sum will be necessary to repair the injury and replace the building in the state it was in when the outrage was committed; and not whether the plaintiff was likely to make it his residence, or whether it was suitable for such residence.

THIS was an action on the statute 7 & 8 G. 4, c. 31, to recover damages for felonious demolition in part of Nottingham Castle, by persons unlawfully, riotously, and tumultuously assembled. Plea, the general issue. At the trial before Vaughan B., at the Summer assizes for Nottingham, two questions were made: first, whether Nottingham Castle was within the hundred of Broxtowe; and, secondly, assuming it to be so, on what principle the compensation given by the statute was to be calculated.

Upon the first point, the plaintiff gave in evidence letters-patent of the 8 Jac. 1, whereby that king granted to E. Ferrers and F. Phelps, inter alia, the dovehouse *close, the brewhouse, and the site, ground, and foundation of the castle mills, described as theretofore being part of the possessions of the [*274 castle of Nottingham; secondly, a grant of the 18th of February, 20 Jac. 1, whereby that king granted to Francis Earl of Rutland, inter alia, the castle of Nottingham, and the site, circuit, ambit, and precinct thereof, and the close called Dove-cott Close in Nottingham Park, and a meadow called King's Meadow, lying in or near the liberties or precincts of the town of Nottingham; all which were described in the grant as parcel of the lands and possessions belonging to the king in right of his crown of England. The plaintiff then put in a series of documents, among which were the following:-An extract from the Hundred Rolls taken by special commission in the third year of Ed. 1. One of the articles of inquiry was of purprestures made upon the king, and by whom made, and under the head of Wapentake of Brokolstowe" was this finding: