1819. The KING against The Inhabit ants of HUGGATE. one. He also cited Rex v. Tottington-lower-End (a), and Rex v. Woburn. (b) Nolan and I. Williams, contrà, were stopped by the Court. BAYLEY J. It seems to me, that in this case, Thomas Lazenby was not emancipated. He is bound apprentice to a certificated person, and consequently could not, by such service, gain any settlement. Unless he does so, his domicile continues to be his father's house, and he is liable to be removed thither at any time. If, indeed, he had withdrawn himself from his father's family after twenty-one, no doubt it would be an emancipation from that period. But a separation, whilst under twenty-one, does not produce that effect, unless a subsequent settlement be gained. Here none was gained; and, therefore, his settlement shifted to Storthwaite, with that of his father. The order of sessions is, therefore, wrong, and must be quashed. HOLROYD J. In Rex v. Witton-cum-Twambrookes (c), Lord Kenyon enumerates the modes of emancipation; but this case does not fall within any one of them. BEST J. concurred. (a) Cald. 284., and 2 Bott. 37. Order of Sessions quashed. (d) (b) 8 T. R. 483, (d) Abbott C. J. was at Guildhall. 1819. WHITEHEAD against PHILLIPS. COMYN moved, in this case, to set aside the proceedings which had been instituted against the bail, and which were quite regular; and the only question was, on what terms he should obtain the rule. It ap Monday, May 17th. Practice. Bail-bond stands as a security where a trial has been lost, notwithstanding the peared that a trial had been lost; but the bail, having bail have renrendered their principal, he contended, that the plain- cipal. tiff, having thus obtained the security of the defendant's person, it would be giving him a double advantage, if, in addition to this, the bail-bond should also stand as a security: but, Per Curiam. There is no distinction between the case where bail above have been put in and perfected, and that of a render. They must, therefore, follow the same rule; and it is a matter of course that, a trial having been lost, the proceedings can only be stayed upon the terms of the payment of costs, and the bailbond standing as a security. Rule accordingly on these terms. ૨૧ ૩ 1819. Monday. riff took posses sion under a THOMAS and Another, Assignees of THOMAS Where the she- TROVER by plaintiffs, as assignees of Houlbrooke, a bankrupt, against the defendants the Sheriff of Middlesex, to recover the value of goods taken by the defendant under a fieri facias against the bankrupt. fieri facias, and of the same day James, was a that in an action by his assignees to recover the value of such goods, the Court would notice the fraction of a day; and, therefore, that the sheriff having entered before the bank rupt had surrendered in discharge of his bail, the assignees were not entitled to recover. This cause was tried at the sittings in London, in this term, before Abbott C. J., when it appeared that the act of bankruptcy, on which the commission was founded, was a lying in prison more than two months. The bankrupt was surrendered in discharge of his bail, on the 1st of June, 1818, between six and eight o'clock in the evening; and on the same day, between one and two o'clock in the afternoon, a writ of fieri facias was delivered to the defendants, who, by their officer, entered into the bankrupt's premises, and seized the goods. The bankrupt lay in prison more than two months afterwards. It was insisted, on the part of the plaintiff, that the act of bankruptcy having been committed on the same day that the goods were taken in execution, the plaintiffs must, in law, be considered as having the property of the goods vested in them, during the whole of that day, because there could not be a fraction of a day. Abbott C. J. thought that the Court might notice the fraction of a day, in this case, and nonsuited the plaintiffs. Minchin now moved to set aside the nonsuit. The act of bankruptcy, in this case, is founded on the stat. 21 Jac. 21 Jac. 1. c. 19. s. 2., which enacts, That when a trader on being arrested for debt shall, after arrest, lie in prison two months, or more, upon that or any other arrest, or detention in prison for debt, he shall, be accounted and adjudged a bankrupt, to all intents and purposes; and in the case of arrest, or lying in prison for debt, from the time of the first arrest. It has certainly been held in cases where the act of bankruptcy consisted of a denial to a creditor, that when the execution and act of bankruptcy were on the same day, it was open to enquire which had the priority, Ex-parte Dobree (a), Sadler v. Leigh. (b) But in the present case, the act of bankruptcy rests on the insolvency of the trader. In Rose v. Green (c), Lord Mansfield says, "The bankruptcy relates only to the time of the sur"render. The most substantial trader is liable to be "arrested; and the mere being arrested is no pre"sumption of insolvency. The presumption from his ❝lying in prison two months without being able to get "bail is a very strong one." Ex-parte Bowes (d), also, is an authority to the same effect. If the insolvency be the criterion, a person who is so totally insolvent in one part of the day as to be surrendered in discharge of his bail, cannot be held to be solvent at a prior part of the same day. In the case of Glassington and Others v. Rawlins (e), it was held, "That the day on which the arrest was made, or the party surrendered in discharge of his bail, was to be included in the reckoning." A commission might therefore have issued against the bankrupt at the opening of the office, on the morning (a) 8 Ves. jun. 82. (b) 4 Campb. 197. ૨૧ 4 (c) 1 Burr. 437. of 1819. THOMAS against DESANGES. of the fifty-seventh day after the surrender, although, if the Court were to look at the fraction of the day, the act of bankruptcy would not be complete until a particular hour in the evening of the same day. ABBOTT C. J. I was of opinion at the trial, and still continue so, that as it respects the interests of third persons, the day ought to be divided. BAYLEY J. I think a fraction of a day must, in this case, be allowed. Until the surrender in discharge of his bail, the bankrupt might have legally disposed of his property; and as the property, at the time of the seizure by the defendants, was not divested from the bankrupt, the assignees cannot recover it. HOLROYD and BEST JS. concurred. Rule refused. Monday, A bill of exchange, affected by usury, being in the hands of an innocent holder. The latter, on being informed of the usury, takes a fresh bill in lieu of it, CHAPMAN against BLACK. THIS case was argued on a former day in this term by Topping and Lawes for the plaintiff, and Marryat for the defendant. For the plaintiff were cited Barnes v. Hedley (a), Daniel v. Cartony (b), and Parr v. Eliason (c); and for the defendant were cited Tate v. Wellings (d), Cuthbert v. Haley (e), and Lowes v. drawn by one of the parties to the original usury, and accepted by a third person, for the accommodation of the other party: Held, that he cannot maintain an action against the acceptor of this substituted bill. (a) 2 Taunt. 184. (d) 3 T. R. 538. (b) 1 Espinasse, 274. (e) 8 T. R. 390, (c) 1 East, 92, Mazaredo. |