1812. COVERLY against MORLEY. order to prove that the bankrupt's effects would not produce 15s. in the pound: the witness however said that he thought it probable that the effects would produce 15s. in the pound. Whereupon it was objected, that it was incumbent on the plaintiff to prove that the bankrupt's estate would not produce 15s. in the pound; whereas the plaintiff's own witness had proved the probability of such a payment. But his Lordship overruled this objection, being of opinion that the certificate under a second commission was no bar to execution in this action against the bankrupt's effects, unless it appeared affirmatively that his estate had produced clear after all charges sufficient to pay every creditor under the commission 15s. in the pound in the words of the act; and that proof of the probability only of this was not sufficient. A verdict was thereupon given for the plaintiff. Puller moved for a nonsuit or new trial, insisting that unless the objection taken at the trial was allowed to prevail, a bankrupt could never avail himself of a certificate under a second commission, provided the creditor brought his action immediately, and before a dividend was declared under such commission. And he cited Philpott v. Carden (a), where the plaintiff proved that 15s. in the pound had not been paid under the second commission: and Jelfs v. Ballard (b), where a dividend not having been declared under the second commission, the plaintiff adduced evidence to shew that it was not probable that the bankrupt's estate would pay 15s. in the pound: and he said that it had never yet been decided that if there be evidence that the estate will probably pay 15s. in the (a) 5 T. R. 287. (b) 1 Bos. & Pull. 467. pound pound, that the certificate will not protect the bankrupt's effects. [Lord Ellenborough, C. J. inquired why the defendant did not move to stay further proceedings in the action until a dividend was declared.] To which it was answered, that there was not any instance of such a motion. Lord ELLENBOROUGH, C. J. The statute has not imposed upon the court and jury the duty of judging by anticipation to what extent the bankrupt's estate will answer the demands of his creditors. If it has produced sufficient to pay 15s. in the pound, that is clear and intelligible; but whether it will produce so much is another question. The words of the statute are plain and explicit, and I dare not go against its directions; and if it has been done in any case, I do not feel myself at liberty to follow the example. BAYLEY, J. None of the cases have decided contrary, In Jelfs v. Ballard the Court of Common Pleas seem to have considered the payment of 15s. in the pound as a condition precedent. Per Curiam, Rule refused. 1812. COVERLY against MORLEY. The 1812. Wednesday, Since the 13 & 14 Car. 2. c. 12. an indenture of apprenticeship overseers of a township which has no church wardens or cha pelwardens, and maintains its own poor sepa indenture, although neither of the church wardens of the parish at large within which the township is situate join in the execution; therefore a ser vice under such indenture was held to confer a settlement. The KING against the Inhabitants of NANTWICH. UPON appeal against an order of two justices for the removal of Samuel Jones, Margaret his wife, and executed by the their children by name, from the township of Pendleton in the county of Lancaster, to the township of Nantwich in the county of Chester; the only question was, whether the head of the family, Samuel Jones, had acquired a settlement by apprenticeship in the township of Pendleton. rately, is a valid The parish of Nantwich consists of five townships, of which the township of Nantwich is one. These townships act separately in all matters relative to the management of the poor, and separate overseers are regularly appointed, two for each township. Two churchwardens are appointed for the parish at large, who have not been accustomed to interfere at all in the management of the poor in any of the townships. There are no churchwardens or chapelwardens appointed in any of the townships. In the year 1787 Samuel Jones, being then a poor boy, settled in the township of Nantwich, was put out for seven years as an apprentice to W. and T. Douglas, cotton machine workers, by an indenture duly stamped and executed by the overseers of the township of Nantwich, by the pauper, and by W. and T. Douglas, and duly allowed by two magistrates for the county of Chester, but not executed by either of the churchwardens. Under this indenture Samuel Jones served Messrs. Douglas for seven years in the township of Pendleton, and resided there during the whole time. Margaret, mentioned in the order, is the wife, and the other paupers are the legitimate children of Samuel Jones. The Sessions being of opinion that the indenture was void because not executed by the majority of the churchwardens and and overseers, confirmed the order of removal, subject to the opinion of this Court on the question, whether under the circumstances of the case it was necessary that the churchwardens of the parish, or one of them, should have executed this indenture to make it valid. pre J.Williams in support of the order of sessions, after mising that there was no decision upon this point, stated that the question would turn principally, upon the construction of the two statutes of 43 Eliz. c. 2. and 13 & 14 Car. 2. c. 12., as they are to be considered with reference to the extent and nature of the duty of churchwardens. If the question had stood upon the first of those statutes alone, there could have been no doubt that the churchwardens were an integral part, and must have joined in executing this indenture. But the doubt arises on 13 & 14 Car. 2. c. 12. s. 21., which subdivided parishes into townships, and enabled the latter to maintain their own poor. That section enacts, that there shall be two or more overseers within every township, who shall execute all acts for the relief of the poor, as is appointed by the 43 Eliz. These words, it must be admitted, are very general, and might seem at first sight to confer on them all the powers of churchwardens and overseers united; but it appears that the legislature have put a more limited construction upon them; for by the 8 & 9 W. 3. c. 30. they thought it necessary expressly to empower the overseers, where there are no churchwardens, to act alone in granting certificates. Now it is evident that this provision would have been nugatory if the words of the stat. Car. 2. are to be taken in their most enlarged sense. As to what is reported to have fallen from two of the learned Judges VOL. XVI. R in 1812. The KING against TheInhabitants of NANTWICH. 1812. The KING against TheInhabitants of in Rex v. Clifton (a), upon the question whether it was necessary for the churchwardens of the parish to join in granting a township certificate, it may be observed that they expressly abstained from deciding it. Then the NANTWICH. 17 G. 2. c. 38. s. 15. makes a similar provision with that in the 8 & 9 W. 3., for it enacts, "that the overseers within every township or place where there are no churchwardens, shall act in all matters relating to the poor, as churchwardens and overseers may do by that or - any former act:" which enactment cannot be said to apply to this case, because this is not a township where there are no churchwardens. Thus it was considered by the Court in the case of Spitalfields v. Bromley (b), that two townships within a parish are the same as two parishes, yet the churchwardens are overseers of the whole parish, and have a superintendence over the whole. As to the argument which seems to have weighed with the Court in Rex v. Clifton, that a churchwarden appointed for a whole parish, who resides in one of the townships within it, may have an interest to act in opposition to his duty in order to exonerate his own township, that may be the case in the granting of certificates by which the township is immediately charged, but the interest is too remote in the case of binding out apprentices. Then it may be urged that the policy of the law, with respect to parish apprentices, seems to be to interpose as many checks as possible upon the act of binding them out; and that policy will best be sustained, by interposing the necessity of the churchwardens concurring. (a) 2 East, 168. (b) 18 Vin. Abr. 468. S. C. 2 Bott, 684., last edit. Nolan |