*ROBINSON v. WADDINGTON. June 9.

[*753

In construing 1 stat. 2 W. & M. c. 5, s. 2, which authorizes the sale of goods distrained within five days next after the taking, the days must be calculated, as the rule now is in other cases, inclusively of the last, and exclusively of the day of taking.

CASE. The second count, which alone is material, was on 1 stat. 2 W. & M. c. 5, s. 2, for selling goods distrained for rent within five days, Plea to this count, Not guilty, by statute.(a)

On the trial, before CRESSWELL, J., at the Lancaster Summer assizes 1848, it appeared that the goods were seized, and notice of the distress. given at 8 A. M. on Saturday, and they were sold about 3 P. M. on the ensuing Thursday. The learned Judge, on the authority of Wallace v. King, 1 H. Bl. 13, directed the verdict on this count to be given for the defendant.

Knowles, in the ensuing term, obtained a rule nisi for a new trial on grounds arising upon the other counts, and also, on the ground that the "five days next after such distress taken, and notice thereof," given by 1 stat. 2 W. & M. c. 5, were to be reckoned exclusively of the day of seizure, so that the sale in this case was not lawful till the Friday.

Martin and Thompson now showed cause.-(The argument on the first-mentioned objections is omitted, no decision having been given upon them.) The point arising on the statute was expressly decided as early as the year 1788, in Wallace v. King: and Harper v. Taswell, 6 Car. & P. 166 (E. C. L. R. vol. 25), is a modern decision to the same effect. *Knowles and Pashley, contrà.-Harper v. Taswell is no authority for the defendants, but rather the contrary. TINDAL, C. [*754 J., there ruled that a sale on the sixth day, reckoning that of the seizure as the first, but before the hour of the seizure, was wrong; and the plaintiff had a verdict. It is now cited as showing that a sale on the same day, but at a later hour, would have been good, which is not the decision. Wallace v. King, 1 H. Bl. 13, does not seem to have been much argued on this point. It is, however, overruled by a long series of subsequent cases, beginning with Lester v. Garland, 15 Ves. 248, which have established one uniform rule, that, in computing the number of days given after an event, the day on which that event happened is not to be reckoned as one; so that, the notice, here, having been given on Saturday, the five days did not expire, and the sale was not lawful, before the end of the fifth day, that is midnight on Thursday. Before Lester v. Garland, this rule had not been uniformly acted upon; since that case it has, and the earlier cases inconsistent with it are no longer law. In Pellew v. Inhabitants of Wonford, 9 B. & C. 134 (E. C. L. R. vol. 17), the Court of King's Bench put the question since asked in such (a) 11 G. 2, c. 19, s. 21.

cases: When would the time have expired had one day only been allowed? The decision of the same court in Hardy v. Ryle, 9 B. & C. 603 (E. C. L. R. vol. 17),(a) put an end to the doubt whether there might not be a distinction, in computing time, between cases in which the person who was to have the benefit of the time was privy to the act from which the time was to run, and those in which he was not. Since that case all the decisions are uniform. Among these are, in the Exchequer, *755] Webb v. Fairmaner, 3 M. & W. 473,† and Young v. Higgon, 6 M. & W. 49. In the latter case, Castle v. Burditt, 3 T. R. 623, was cited; and PARKE, B., in delivering his judgment, said (6 M. & W. 52†): "If the case of Castle v. Burditt, is still to be considered law, then undoubtedly our judgment must be in favour of the plaintiff: but I think that, after the decisions which have since taken place, it cannot be so considered. According to the earlier authorities on this subject, whenever a period of time was to be computed from an act done, and not from a particular day, the day on which the act was done was reckoned inclusive and on that principle the case of Castle v. Burditt was decided." He then discusses that case, and the authorities before and since Lester v. Garland, 15 Vesey, 248, and concludes: "So that the point may now be considered as settled by a course of recent decisions, all proceeding upon the same principle, that the day from which the computation is made ought, in cases like the present, to be excluded; and such appears to me to be the reason and good sense of the matter. On the other hand, Castle v. Burditt rests altogether on the authority of Rex v. Adderly, 2 Doug. 463, which I cannot help considering as overruled. Apply the criterion which has been before suggested-reduce the time to one day, and then see what hardship and inconvenience must ensue if the principle I have stated is not to be adopted." The same reasons that induced the Court of Exchequer to consider Castle v. Burditt and Rex *v. Adderly as no longer law, apply to Wallace v. King, 1 *756] H. Bl. 13. The decisions in the Court of Queen's Bench are as uniform as those in the Exchequer; Regina v. The Justices of Shropshire, 8 A. & E. 173 (E. C. L. R. vol. 35), Mitchell v. Foster, 12 A. & E. 472 (E. C. L. R. vol. 40), Wilson v. Nightingale, 8 Q. B. 1034 (E. C. L. R. vol. 55),(6) in which last case a rule nisi was granted on the very point now before the Court, though the rule was made absolute on another. In equity, in Gorst v. Lowndes, 11 Sim. 434, the Vice Chancellor of England treated the question as quite settled. (Pashley was here stopped by the Court.)

Lord DENMAN, C. J.—Very reluctantly we are obliged to yield to the later authorities which have introduced a revolution in the law on this point.

(a) See Young v. Higgon, 6 M. & W. 49, 53.†

(b) See Wilkinson v. Gaston, 9 Q. B. 137 (E. C. L. R. vol. 58), and authorities there cited.

PATTESON, J.-It is unnecessary to express any opinion on the other points; for on the last the modern authorities seem uniform. COLERIDGE and ERLE, J., concurred.

1

(a) Reported by C. Blackburn, Esq.

The law in the United States is settled by a host of authorities in conformity to the principle established in this case. When, in a statute, time is computed from an act done, the first day is excluded; for a day is to be considered as an indivisible point of time, and there can be no distinction between a computation from an act done and a computation from the day in which the act was done. Homan v. Liswell, 6 Cowen, 659; Ex parte Dean, 2 Cowen, 605; Bigelow v. Wilson, 1 Pick. 485; Portland Bank

Rule absolute.(a)

v. Maine Bank, 11 Mass. 204; Carson v. Love, 8 Yerger, 215; Cornell v. Moulton, 3 Denio, 12; Weeks v. Hull, 19 Conn. 376; Vairin v. Edmonson, 5 Gilman, 270. The three months after the expiration of the year given to the debtor to redeem lands sold under an execution in New York, commence running on the day succeeding the expiration of the year, and that is counted inclusively. The People v. Sheriff of Broome, 19 Wend. 87. See also Goswiler's Estate, 3 Pennsylvania Rep. 201.

The QUEEN v. The BAPTIST MISSIONARY SOCIETY. June 9. Reported, 10 Q. B. 884 (E. C. L. R. vol. 59).

*JORDAN v. BINCKES. June 11.

[*757

A fi. fa. "returnable immediately after the execution thereof," under stat. 3 & 4 W. 4, c. 67, s. 2, is in force until it has been completely executed; and where a portion only of the amount for which the writ issued was realized by levy, a second levy under the same writ for the balance, eleven years afterwards, was held good.

BRAMWELL, in last Easter term, obtained a rule calling upon the plaintiff and the sheriff of Middlesex to show cause why the levy and execution of the writ of fi. fa. in this cause on the 12th March, 1849, should not be set aside, and why the sum of 821. 48. levied by the said sheriff thereunder, and now in his hands, should not be returned to the defendant. The writ in question, "returnable immediately after the execution thereof," to levy 90l. 158., had issued in 1838. In that year a levy was made which produced about 51. after payment of expenses; and, on 12th March, 1849, the further sum of 821. 48. was made by a second levy under the same writ.

Lush for the plaintiff, and Burchell for the sheriff, now showed cause.The question whether a second levy can be made under a fi. fa., “returnable immediately after the execution thereof," under stat. 3 & 4 W. 4, c. 67, s. 2, arises now for the first time. A second writ for the purpose of obtaining complete execution of the judgment would have been irregular, as the present writ has not been returned; Chapman v. VOL. XIII.-57 2P2

Bowlby, 8 M. & W. 249 :† and the sheriff was bound to make the second levy under the same writ. Before stat. 3 & 4 W. 4, c. 67, if complete execution had not been had before the return day of the fi. fa., a second writ would *have been necessary to warrant further execution. *758] Since the statute, however, it has been held that a ca. sa. is not returnable until the defendant be arrested; Lewis v. Holmes, 10 Q. B. 896 (E. C. L. R. vol. 59). In like manner a fi. fa. is now not returnable until after execution," that is complete execution. It is no objection that complete execution is not had until after the expiration of a year from the judgment, provided that the writ has been duly sued out within the year and day. This has been distinctly held with respect to a ca. sa.; Simpson v. Heath, 5 M. & W. 631,†(a) Greenshields v. Harris, 9 M. & W. 774.† One of the objects of the statute was to render a succession of writs unnecessary. As before the statute there might have been successive levies before the return day, so now, the writ not being returnable until after execution, there may be successive levies until execution, that is until complete execution. In this respect a fi. fa. is, like a writ of sequestration, a continuing writ. It may be said that, if a fi. fa. is thus to be in force for an indefinite time, the defendant will not know which sheriff is to be responsible to him. But there is no difficulty in this; for, by stat. 3 & 4 W. 4, c. 99, s. 7, every outgoing sheriff is to deliver to his successor a list of all writs and other process in his hands not wholly executed by him, with all such particulars as shall be necessary to explain to the said incoming sheriff the several matters intended to be transferred to him," and is also to deliver over the *writs themselves: and, besides, the defendant *759] may at any time rule the sheriff to return what he has done upon the writ. The phrase "not wholly executed" seems to contemplate just such a case as the present.

Bramwell, contrà.-The phrase "not wholly executed" probably applies to a ca. sa. where one only of several defendants is taken under it. Though old writs are handed over to the incoming sheriff, yet the defendant would have no means of checking the accounts; and, if a writ is to be in force for eleven years, the Statute of Limitations may bar all remedy against the particular sheriff who has been guilty of misconduct. This defendant may have supposed, after a lapse of eleven years, that the writ was satisfied by the first levy. The duty of the sheriff is to take enough in the first instance. If there is not enough he must take all he can; and when he has done this he has executed the writ, and must make known to the Court what he has done. If the defendant has two parcels of goods in different parts of the bailiwick, the sheriff may undoubtedly seize one parcel to-day and the other parcel to-morrow: but he must use due diligence to levy on all accessible goods. After the

(a) According to this report, 1838 was the year of the arrest; but this is noticed by PARKE, B., as a mistake for 1839, in Greenshields v. Harris, 9 M. & W. 776.†

exercise of such diligence, in case it should be either wholly or in part ineffectual, the time has arrived when the writ is executed; for the sheriff may then return either nulla bona, or fieri feci as to part and nulla bona as to the residue. According to the practice contended for by the plaintiff, the entire execution may be delayed eleven years, all the defendant's goods being bound in the interim.

*Lord DENMAN, C. J.-It seems to me that this writ was not [*760 completely executed by the first levy; and I do not see where the line is to be drawn, short of complete execution, to limit the force and duration of the writ. If the defendant wished to know what had been done under this writ, he might have ruled the sheriff at any time to return it. The defendant's construction, namely, that the writ is executed as soon as the sheriff may return nulla bona, either in whole or in part, requires authority to support it; and such authority as there is seems to be quite against him.

PATTESON, J.-I cannot see at what point the sheriff can stop before complete execution. Formerly, if other goods came into his bailiwick after a partial levy and before the return of the writ, the sheriff was bound to seize them; and he is equally bound to do so now, until the writ has been completely executed.

ERLE, J.(a)—I am of the same opinion; and I think the statute must be so construed in order to give any intelligible limit to the writ: the test suggested with reference to the sheriff's ability to return nulla bona would, I think, very often give but a doubtful limit.

Rule discharged.(b)

(a) COLERIDGE, J., was sitting at Guildhall.
(b) Reported by H. Davison, Esq.

*In the Matter of the Tithes of CROSBY-UPON-EDEN.

June 12.

[*761

On inquiry with a view to commutation of tithes under stat. 6 & 7 W. 4, c. 71, the assistant Commissioner proposed to make his award, giving a rent-charge to the vicar of 70%. in lieu of tithes of turnips, &c.

The vicar had filed a bill in equity against certain of the land-owners for an account and payment of tithes of turnips, &c., which he claimed as due to him: and the land-owners had put in an answer, alleging that the tithe in question had been vested in the rector, but was now barred by stat. 2 & 3 W. 4, c. 100. The suit was depending before the Lord Chancellor on appeal. This Court, referring to stat. 6 & 7 W. 4, c. 71, ss. 45, 50, granted a prohibition at the instance of the land-owners, to prevent the assistant Commissioner from making his award until the decision of the suit depending in Chancery; whether that decision were to be given by the Court of Chancery, or by the Commissioners or assistant Commissioner. Semble, per Lord DENMAN, C. J., and PATTESON, J., that the assistant Commissioner had power to determine the suit, as a preliminary to the making of his award.

A RULE was obtained this term, calling upon the Tithe Commissioners for England and Wales, and John Job Rawlinson, Esquire, one of Her