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1797

Nov. 22d.

Watts v. HART. 14 Euf, 203 uVcz.Iun.655. 16 Pliitiff be- SHEPHERD Serjt

. obtained a rule to fhew cause why the writ come

of capias ad fatisfaciendum issued and executed on the judgafter a i ontuit at nifi prius, and

ment of nonfuit in this cause should not be set aside, and why before the judy. the fum of 241. 2s. 6d. levied thereon and paid into the hands the costs of the of the sheriff of the county of Middlesex, should not be restored nouluit are a deht proveable

to the Plaintiff, he having obtained his certificate; and cited under the com- Hurst v. Mead, 5 T.R.365. niffion.

The Plaintiff was nonfuited in an action against the Defendant at the Sittings after Hilary Term 1797; on the 26th of April following a commission of bankrupt iflued against the Plaintiff, and on the 7th of May, being the 4th day of Easter Term, costs were taxed, and the judgment of nonsuit afterwards figned; on the 30th of June in the same year the Plaintiff obtained his certificate, and on the 5th of August following the Defendant fued out a ca. fa. under which the sheriff levied the above mentioned 241. 2s.6d.

Adair Serjt. for the Defendant. It was uniformly holden til the case in 5 T. R. 365. that costs of this description not converted into a debt by judgment, or liquidated by taxation, could not be proved under the commission. In 3 Wilf. 272. the case of Walter v. Sherlock, Hil. 23 Geo. 2. is cited, where in an action of assault and battery before bankruptcy of the Defendant, and verdiet for the Plaintiff with damages during his bankruptcy, but no judgment till after certificate, the Court held the debt pot proveable under the commission, as not due at the time of the bankruptcy. So in ex parte Sneeps, Cooke's B. Laws, 192. where costs were taxed subsequent to the bankruptcy, but the order for the taxation was made before it, the Chancellor held that the taxation constituted the demand. The case of Blanda ford 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 discharged, yet the reason given was that the original debt being clearly due before the bankruptcy, the interest and costs which had accrued since should stand on the same foundation. But in the present cafe

there is no original debt to which a reference can be made: [ 135 ) there is no damage and no demand, till the costs are taxed, and

the judgment of nonfuit figned. The fame obfervation applies

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1797

WATTS

HART.

to the case of Lewis v. Piercy, 1 H. Bl. 29. as to that of Blandford v. Foote. So in er parte Todd, cited in Goddard and Vanderheyden, 3 Will. 270. where the Defendant became bankrupt after a verdict in ejectment against him with nominal damages, and the Plaintiff figned judgment in the following term, and had costs 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 strong to be shaken by the single authority of Hursi v. Mead, which appears to have been a hafty decision, as caule was shewn in the first instance.

Shepherd, in support of the rule, relied on the case of Hurst 5. Mead, and said that Buller J. had there alluded to a similar cafe in the Court of Common Pleas, where the point was ruled the same 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 decision in Lewis v. Piercy must have been that there was an actual debt which existed before the bankruptcy, and though not converted into a judgment might have been proved under the commission independent of the action; and being fo proveable, the subsequent proceedings might be considered as incident, and as nothing when separated from the subject to which they were incident. I would

I would go as far as I could towards relieving the bankrupt, and if it could be made out that the substance of the debt were constituted by the nonfuit, and nothing more than the mere taxation were necessary 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 verdiet given: but if a nonsuit at niß prius be only a ground on which the Court is to pronounce judgment, then the judgment being that which constitutes the debt, and being after the bankruptcy, I do not know how to refer the debt to the time of the nonfuit. There seems to be only an inchoate interest arising on the nonsuit at nisi prius; you could not tax the costs till after the day in Court, and the postca returned: the nonsuit alone is nothing, absolutely 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 costs are first taxed. The costs are given with reference

(a) The day at Nifi Prius and the day in bank, the Plaintiff shall have execution in hank are but one day in law, and there again the hand which he had at the day fore if a defendant alienate his hand be- of Nifi Prius, Dier 149. i Roll. Ab. 892. Iveta the day at Nifi Prius and the day

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to the judgment of nonsuit, and not to the nonsuit at nifi prius, and therefore, as at present advised, I cannot agree to the cafe of Hurst v. Mead. The nonfuit at nis prius was not that which gave any specific demand, proveable under the commission; for the debt was wholly unliquidated till the moment that the Court had pronounced judgment.

Heath ). I do not fee how any possible reference can be made to the time of the nonsuit at nis prius : but after judgment had, the debt arising from the costs tranfit in rem judicatam by virtue of the act of Parliament.

ROOKE J. This is one of many cases which bears hard upon the bankrupt. I should be glad to support the judgment in the King's Bench, and relieve the bankrupt, if it could be done consistently with the rules of law. But, as at present advised, I think the authorities the other way too strong.

The Court having desired the counsel to make inquiry into the circumstances of the case of Hurst 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 discharge the bankrupt out of execution, on a ca. fa. for the costs of a judgment of nonfurit.

EYRE Ch. J. Thus much is certain that the nonfuit at nisi prius is that which neceffarily produced the judgment of nonsuitIt will be difficult to distinguish this case from a case (a) where an action of flander was brought, and damages given by the jury, and before the day in bank, a commission of bankrupt issued against the Defendant, who on this ground was discharged out of execution. There was no original debt previous to the verdict in that case any more than before the nonsuit at nis prius, in the case of Hursi v. Mead. I do not think either of the cases founded on principle. But the question is, Whether we ought not to adhere to a decided cafe rather than contradict it, where the demand is such as the Court cannot look upon with favour ? On this ground we are of opinion that we must make

The rule absolute.

(a) Longford v. Ellis, cit. 1 H. Bl. 29. n.

17974

amend a mistake

Johy Norman Cross Demandant, WILLIAM Grey Nov. 22d, Tenant, and Anne Pead and Another Vouchees.

2 Bof. & Pull.

456. 56o. CLArton Serjt. on a former day moved to amend the writ The Court will

of entry, mittimus, tranfeript, and recovery, in this case, give leave to The premises, as deferibed in the decd to lead the uses, amounted, in the writ of on being added together, to one hundred and fixty-eight acres entry ina.com

recovery. 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 suffered of two mesfuages, fifty acres of land, fifty acres of meadow, and fifty acres of pasture: the mistake was fupposed to have originated with the clerk in the country writing the figures 30 instead of 50; the parties were all alive.

It was urged that no inconvenience would arise from this amendment, provided that the increased fine for alienation were duly paid. · The Court directed the parties to apply, in the first instance, 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 similar motion.

But the Chief Justice intimating his recollection of a refolution in the House of Lords, that no original writ could be amended, and wishing to consider to what length the practice of amendments had gone since that time, the cafe stood over till this day, when being again moved,

EYRE Ch. J. I hesitate about granting this motion, because I find a case in the House 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 statute. It is the cafe of Lord Pembroke, i Salk. 52. The practice I underftand to be in favour of the amendment. My only difficulty arises from the case I have mentioned; but if my Brothers are satisfied I shall not oppose the amendment.

1797

CROSS

PEAD.

HEATH J. By Gage's case (a), 5 Rep. 45. and several cases to be found at the end of Piggott (6), amendments of common re. coveries are warranted ; and during twenty-two years that I have sat 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. original writs may be amended as to mistakes of the clerks. There is a case in Black stone (c) also, where it was held that if a clerk mistake his instructions the præcipe shall be amended.

Leave was given to amend. (d)

not law.

(a) In 1 Salk. 53. and Fortefeue, 188. (d) Vid. 2 Barnes, 24. and 216. and Gage's cafe is said to be misreporied, and Jenkinson v. Staples, Cruise, 2 vol. p. 183.

where the precipe and writ of entry

in (6) Drake and another v. Biddulph, common recovery were amended. - Allo p. 222. Skinner and Oihers v. Land, p. 228. Arthur Blackamor's case, 8 Co. 156. 163.

(o Vid. Watson v. Cox, and Henzel v. and Winne v. Wynne, 7 Mod. 192. 506. Lodge, 2 Bl. 747. and 1065. allo 3 Will. i Wilf35.42. S. C. Pearson v. Pearfum, 134.

i H. Bl. 73. Wincb. 99. Nov. 23d. 2 Eaf's Rep. 455. Contra p. Ld. VICTOIRE ADELAIDE FRANÇOISE MELAN

V. The Ellenborough and

Duke de FITZJAMES. Heath J. poff. 142. If a defendant be held to bail A RULE had been obtained by Shepherd Serjt. calling on the in this country

Plaintiff to shew cause why the bail-bond given for the on an instrumene appearance of the Defendant in this cause should not be deentered into in

livered to be cancelled, on the Defendant entering a common France, and by

up which inftru

appearance. ment his pro

The affidavit of debt ftated, “ That the Defendant was justly perty only and not his person, and truly indebted to the deponent in the sum of 1000l. and washa cording upwards (a) on a certain deed, under the hand and seal of France made the Defendant, bearing date the 22d January 1789, made and liable, the Court on motion will

executed in France, according to the laws there in force, to and discharge him in favour of the deponent.” on his entering a common appear

By the instrument in question, the Defendant “ creates, conftitutes, promises, secures, and grants to the Plaintiff the sum of 30,000 livres, by way of yearly annuity, &c. which sum the Defendant promises and binds himself to pay to the Plaintiff, at his house, or to the bearer of this present deed, in four equal payments, at the four usual periods of the com

ance.

(0) When this was first moved, the of the debt, to hold the Defendant to bail. Court doubted whether the words « on a But this objection was never mentioned certain deed" were a fufficient description again.

mon

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