1797. Nov. 22d. 14 Eaft, 203. 11Vcz. Jun.655. If a Plaintiff become bankrupt after a tontuit at nifi prius, and SHEPH WATTS v. HART. HEPHERD Serjt. obtained a rule to fhew caufe why the writ of capias ad fatisfaciendum iffued and executed on the judgment of nonfuit in this caufe fhould not be fet afide, and why before the judge the fum of 24l. 2s. 6d. levied thereon and paid into the hands of the sheriff of the county of Middlefer, fhould not be restored to the Plaintiff, he having obtained his certificate; and cited Hurft v. Mead, 5 T.R. 365. ment of nonfuit, the cofts of the nonfuit are a debt proveable under the com miffion. [135] The Plaintiff was nonfuited in an action against the Defendant at the Sittings after Hilary Term 1797; on the 26th of April following a commiffion of bankrupt iffued against the Plaintiff, and on the 7th of May, being the 4th day of Eafter Term, cofts were taxed, and the judgment of nonfuit afterwards figned; on the 30th of June in the fame year the Plaintiff obtained his certificate, and on the 5th of Auguft following the Defendant fued out a ca. fa. under which the theriff levied the above mentioned 24l. 2s. 6d. Adair Serjt. for the Defendant. It was uniformly holden till the cafe in 5 T. R. 365. that cofts of this description not converted into a debt by judgment, or liquidated by taxation, could not be proved under the commiffion. In 3 Wilf. 272. the cafe of Walter v. Sherlock, Hil. 23 Geo. 2. is cited, where in an action of affault and battery before bankruptcy of the Defendant, and verdict for the Plaintiff with damages during his bankruptcy, but no judgment till after certificate, the Court held the debt not proveable under the commiffion, as not due at the time of the bankruptcy. So in ex parte Sneeps, Cooke's B. Laws, 192. where cofts were taxed fubfequent to the bankruptcy, but the order for the taxation was made before it, the Chancellor held that the taxation conftituted the demand. The cafe of Blandford v. Foote, Cowp. 138. though apparently against the Defendant, does in fact contain a strong implication in his favour; for though the bankrupt was there difcharged, yet the reason given was that the original debt being clearly due before the bankruptcy, the intereft and cofts which had accrued fince fhould ftand on the fame foundation. But in the prefent cafe there is no original debt to which a reference can be made: there is no damage and no demand, till the cofts are taxed, and the judgment of nonfuit figned. The fame obfervation applies to to the cafe of Lewis v. Piercy, 1 H. Bl. 29. as to that of Blandford v. Foote. So in ex parte Todd, cited in Goddard and Vanderheyden, 3 Wilf. 270. where the Defendant became bankrupt after a verdict in ejectment againft him with nominal damages, and the Plaintiff figned judgment in the following term, and had cofts de incremento taxed and allowed, Lord Chancellor Henley held that the cofts did not become a debt till the judgment. This current of authorities is too ftrong to be fhaken by the fingle authority of Hurst v. Mead, which appears to have been a hafty decifion, as caufe was fhewn in the firft inftance. Shepherd, in fupport of the rule, relied on the cafe of Hurst v. Mead, and faid that Buller J. had there alluded to a fimilar cafe in the Court of Common Pleas, where the point was ruled the fame way: but admitted, that he had not been able to find any other than that of Lewis v. Piercy.' EYRE Ch.J. The ground of the decifion in Lewis v. Piercy must have been that there was an actual debt which exifted before the bankruptcy, and though not converted into a judgment might have been proved under the commiffion independent of the action; and being fo proveable, the fubfequent proceedings might be confidered as incident, and as nothing when feparated from the fubject to which they were incident. I would go as far as I could towards relieving the bankrupt, and if it could be made out that the fubftance of the debt were constituted by the nonfuit, and nothing more than the mere taxation were neceffary to reduce it into a practical shape, in which it might be recovered, it might then be confidered in the fame manner as if the taxation were made on the very day (a) of the verdict given: but if a nonfuit at nifi prius be only a ground on which the Court is to pronounce judgment, then the judgment being that which conftitutes the debt, and being after the bankruptcy, I do not know how to refer the debt to the time of the nonfuit. There feems to be only an inchoate intereft arifing on the nonfuit at nifi prius; you could not tax the cofts till after the day in Court, and the poftea returned: the nonfuit alone is nothing, abfolutely nothing. When the record is returned into Court, the Court is to deal with it, and to pronounce the judgment of the law upon it; upon which the cofts attach; but in order to make the judgment complete, the cofts are firft taxed. The costs are given with reference (a) The day at Nifi Prius and the day in bank are but one day in law, and therefore if a defendant alienate his hand between the day at Nifi Prius and the day in bank, the Plaintiff fhall have execution K 4 to 1797. WATTS ย. HART. . 1797. WATTS V. HART. to the judgment of nonfuit, and not to the nonfuit at nifi prius, and therefore, as at prefent advised, I cannot agree to the cafe of Hurft v. Mead. The nonfuit at nifi prius was not that which gave any specific demand, proveable under the commiffion; for the debt was wholly unliquidated till the moment that the Court had pronounced judgment. HEATH J. I do not fee how any poffible reference can be made to the time of the nonfuit at nifi prius: but after judgment had, the debt arifing from the cofts tranfit in rem judicatam by virtue of the act of Parliament. ROOKE J. This is one of many cafes which bears hard upon the bankrupt. I fhould be glad to fupport the judgment in the King's Bench, and relieve the bankrupt, if it could be done confiftently with the rules of law. But, as at prefent advifed, I think the authorities the other way too ftrong. The Court having defired the counfel to make inquiry into the circumftances of the cafe of Hurft v. Mead, Shepherd on this day faid, that by the rule and original affidavit in that cafe which he had obtained, it appeared to have been an application to difcharge the bankrupt out of execution, on a ca. fa. for the cofts of a judgment of nonfuit. EYRE Ch. J. Thus much is certain that the nonfuit at nifi prius is that which neceffarily produced the judgment of nonfuit. It will be difficult to distinguish this cafe from a cafe (a) where an action of flander was brought, and damages given by the jury, and before the day in bank, a commiffion of bankrupt iffued against the Defendant, who on this ground was discharged out of execution. There was no original debt previous to the verdict in that cafe any more than before the nonfuit at nisi prius, in the cafe of Hurst v. Mead. I do not think either of the cafes founded on principle. But the queftion is, Whether we ought not to adhere to a decided cafe rather than contradict it, where the demand is fuch as the Court cannot look upon with favour? On this ground we are of opinion that we must make The rule abfolute, (a) Longford v. Ellis, cit. 1 H. Bl. 29. n. 1797. JOHN NORMAN CROSS Demandant, WILLIAM GREY Nov. 22d, Tenant, and ANNE PEAD and Another Vouchees. CLAYTON Serjt. on a former day moved to amend the writ of entry, mittimus, tranfcript, and recovery, in this cafe. The premifes, as deferibed in the deed to lead the ufes, amounted, on being added together, to one hundred and fixty-eight acres two roods fifteen poles: in the recovery the parcels were defcribed to be two meffuages, thirty acres of land, thirty acres of meadow, and thirty acres of pasture, whereas the recovery was intended to be fuffered of two meffuages, fifty acres of land, fifty acres of meadow, and fifty acres of pafture: the mistake was fuppofed to have originated with the clerk in the country writing the figures 30 inftead of 50; the parties were all alive. It was urged that no inconvenience would arife from this amendment, provided that the increafed fine for alienation were duly paid. The Court directed the parties to apply, in the firft inftance, to the Alienation Office, and mention the matter again when that was done. Accordingly it was afterwards brought on again by Clayton, who stated that an application had been made at the Alienation Office, where the practice was to rate a new fine for King's filver, on the whole number of acres, and then make allowance for the money received before, and that there was a precedent in the office of a manor having been added on a fimilar motion. But the Chief Juftice intimating his recollection of a refolution in the Houfe of Lords, that no original writ could be amended, and wishing to confider to what length the practice of amendments had gone fince that time, the cafe ftood over till this day, when being again moved, EYRE Ch. J. I hefitate about granting this motion, because I find a cafe in the Houfe of Lords, where, on a reference to Lord Holt and the Judges, it was determined that a mistake in a writ of entry could not be amended either by common law or by ftatute. It is the cafe of Lord Pembroke, 1 Salk. 52. The practice I understand to be in favour of the amendment. My only difficulty arifes from the cafe I have mentioned; but if my Brothers are fatisfied I shall not oppose the amendment. HEATH 2 Bof. Pull. 456.560. The Court will give leave to amend a mistake in the writ of entry in a com mon recovery. 1797. CROSS V. PEAD. Nov. 23d. 2 Eafi's Rep. 455. HEATH J. By Gage's cafe (a), 5 Rep. 45. and several cases to be found at the end of Piggott (b), amendments of common recoveries are warranted; and during twenty-two years that I have fat here, it has been the constant practice to amend them by the deed to lead the uses. ROOKE J. By the 8 H. 6. c. 12. amended as to miftakes of the clerks. original writs may be There is a cafe in Black ftone (c) alfo, where it was held that if a clerk miftake his inftructions the præcipe fhall be amended. (a) In 1 Salk. 53. and Fortefcue, 188. Gage's cafe is faid to be mifreported, and not law. (b) Drake and another v. Biddulph, p. 222. Skinner and Others v. Land, p. 228. (6) Vid. Watfon v. Cox, and Henzel v. Lodge, 2 Bl. 747. and 1065. allo 3 Wilf. 154. Contra p. Ld. VICTOIRE ADELAIDE Ellenborough and Heath J. poft. 142. If a defendant be held to bail in this country A FRANÇOISE MELAN v. The Duke de FITZJAMES. RULE had been obtained by Shepherd Serjt. calling on the Plaintiff to fhew caufe why the bail-bond given for the on an inftrument appearance of the Defendant in this caufe fhould not be deentered into in livered up to be cancelled, on the Defendant entering a common France, and by which inftrument his property only and not his perfon, was according to the law of France made appearance. The affidavit of debt ftated, "That the Defendant was juftly and truly indebted to the deponent in the fum of 1000l. and upwards (a) on a certain deed, under the hand and feal of the Defendant, bearing date the 22d January 1789, made and liable, the Court executed in France, according to the laws there in force, to and in favour of the deponent." on motion will discharge him on his entering a common appear ance. By the inftrument in queftion, the Defendant "creates, conftitutes, promises, fecures, and grants to the Plaintiff the sum of 30,000 livres, by way of yearly annuity, &c. which fum the Defendant promifes and binds himself to pay to the Plaintiff, at his house, or to the bearer of this prefent deed, in four equal payments, at the four ufual periods of the com (a) When this was firft moved, the Court doubted whether the words " on a certain deed" were a fufficient description of the debt, to hold the Defendant to bail. But this objection was never mentioned again. mon |