authority of Shutt v. Procter in C. P. (a) was somewhat impugned. (6) But an overseer of the poor, who held a sum of money in his hands belonging to the parish at the time of his bankruptcy, was considered as free from this charge by his certificate, although the year of his office had not expired, before which time he could not be compelled to account, because it was debitum in præsenti, solvendum in futuro, and it seems that any of the parishioners might have proved. The rule for a habeas corpus to discharge him out of custody from Devon County Gaol, whither he had been sent by the justices for not accounting, was made absolute upon his verifying his account and undertaking not to bring any action. (c) It was once urged, that the 5 G. 2. relates to legal debts only; but in that case, where a bankrupt had been attached for a contempt in not paying a sum of money pursuant to the order of a Court of Equity, he was dis charged on his application, having obtained his certificate. (d) And it has been resolved, that an attachment for nonperformance of an award will not prevent a bankrupt's discharge after his certificate, for debt will lie for such (a) 2 Marsh, 226. Where on payment of the penalty and costs, that Court stayed proceedings in an action on a bastardy-bond. See 6 T. R. 303. Wilde v. Clarkson. 6 East, 110. Cole v. Gower. The Overseers of St. Martin-in-the (b) 1 B. & A. 491. Rex v. Tucker. a demand, and, therefore, it is avoided according to the statute. (a) To such costs, Where the costs of an action can be ascertained, as Costs. in cases where final judgment has been signed, they relate back to the bankruptcy; or since 46 G. 3., to the issuing of the commission, and may be proved. therefore, the certificate will be a bar. ciple seems to be, that costs should not be proved in any case whatever, unless they are taxed, and judgment has been signed before the bankruptcy. (b) And the old authorities which seem at variance with this position, and the opinion expressed conformably to it by Lord Eldon, have been greatly shaken by subsequent decisions. So that, whether it be a claim to be discharged from interest and costs generally (c), or costs arising upon a nonsuit at Nisi Prius (d), if the judgment be not signed before the suing out of the commission, it will not now be safe for a bankrupt to contest their effect against him, notwithstanding his certificate, Indeed, it had been holden before these decisions, that costs in (a) 2 Str. 1152. James Baker's case, and see Cowp, 136. Rex v. Stokes. (b) Per Lord Eldon in Ex parte Hill. See 1 G. & J. 385. Ex parte Poucher. 11 Ves. jun. 646. 2 Sir Wm. Bl. 1317. 1 H. Bl. 29. Lewis v. (c) Cowp. 138. Blandford v. Foote. (d) 5 T.R. 365. Hurst v. Mead. 1 B. & P. 134. Watts v. Co. ejectment, where the defendant had become a bankrupt before the judgment, could not be proved; for that costs were connected with the judgment, and did not become a debt until it had been signed. (a) And in Ex parte Hill, Lord Eldon considerably shook the decisions above referred to, observing, that the authority of Lord Henley had not been adverted to in recent determinations, and he refused to allow costs of this nature to be proved. (b) Then came the great case of Ex parte Charles, where a trader, between verdict and judgment, had committed an act of bankruptcy; on which the debt so recovered was held not to be a good petitioning creditor's debt. (c) And this latter decision has received the sanction of Westminster Hall, and has been acted upon ever since. As, in an action for damages where judgment was signed after the act of bankruptcy and issuing of the commis sion. (d) So, where the plaintiff became bankrupt before the signing of final judgment. (e) But the decision in Ex parte Charles left untouched the doctrine that costs shall bear relation to the original debt. (ƒ) Therefore, where the plaintiff revived a judgment, originally recovered by scire facias, and the de (a) By Lord Henley, Ex parte Todd, cited 2 Wils. 270. Walter v. Sherlock, ibid. (b) 11 Ves. jun. 646. 2 B. & P. 191. n. (a.) S.C., and see Co. B. L. 211. Ex parte Sneaps. (c) 14 East, 197. (d) 2 M. & S. 70. Buss v. Gilbert. (e) 1 Marsh, 346. Walker v. Barnes. 5 Taunt. 778. S.C., and see 2 B. & B. 8. Dinsdale v. Eames. (ƒ) 3 M. & S. 327. per Lord Ellenborough C. J. fendant had become bankrupt, it was resolved, that the costs of scire facias related back to the original judgment, and that the bankrupt was delivered from the burthen of those costs by his certificate, there having been an ascertained debt in existence to which such costs might be referred. (a) So, costs incurred by a writ of error brought after a bankruptcy to recover a judgment against á bankrupt before, are equally barred. (b) So, where the plaintiff sued the defendant for a debt, soon after which a commission issued against the defendant, the plaintiffs went on to judgment, and then the defendant obtained his certificate, and brought a writ of error on the judgment, which was nonprossed for want of assignment of errors; it was held, that as there was a prior debt to which these costs could be attached, the bankrupt was discharged from them. (e) And again, where a second commission, the first being superseded, was sued out on the 7th of August, 1821, against a party who had been a plaintiff against the Commissioners of Bankrupts in an action for an alleged wrongful imprisonment, previous to which, in July, 1821, the defendants, the Commissioners, had entered up judgment, the Court held the debt clearly proveable, and made a rule absolute for the bankrupt's discharge from execution in respect of these costs. (d) But a bankrupt executor, who pleads a false plea after the commission issued, is liable to costs, and for this reason; he becomes a debtor (a) 6 T. R. 282. Philips v. Brown. (b) Ibid. (c) 3 M. & S. 326. Scott v. Ambrose. (d) 1 Bing. 189. Holding v. Impey. 7 Moore, 614. S. C. Bankrupt when discharged from debts paid for him by a surety. by such plea, and is thus considered to have contracted a new debt under the commission. (a) By the law as it originally stood, if a surety paid the debt of his principal before bankruptcy he could come in under the commission, but if afterwards, his remedy still lay over against the bankrupt. (b) And it made no difference that the surety had been called upon for payment under such circumstances before the bankruptcy. (c) But it was enacted by 49 G. 3. c. 121. s. 8., that in all cases of commissions of bankrupt already issued, under. which no dividend has yet been made, or under which the creditors who have not proved can receive a dividend equally in proportion to their respective debts, without disturbing any dividend already made; and in all cases of commissions of bankrupt hereafter to be issued, where at the time of issuing the commission any person shall be surety for, or be liable for any debt of the bankrupt, it shall be lawful for such surety or person liable, if they shall have paid the debt, or any part thereof in discharge of the whole debt, although he may have paid the same after the commission shall have issued, and the creditor shall have proved his debt under the commis→ sion, to stand in the place of the creditor as to the dividends upon such proof; and when the creditor shall not have proved under the commission, it shall be lawful for (a) 3 Burr. 1368. Howard v. Jemmet. 1 Sir Wm. Bl. 400. S. C. (b) Cro. Jac. 127. rities there cited. Osborn v. Churchman, and the authoCowp. 525. Taylorv. Mills. 2T.R.640. Martin v. Court, and see 2 T. R. 100. Toussaint v. Martinnant. (c) 1 T.R. 599. Paul v. Jones. |