Costs. Except in an action ex con tractu. asking, whether an ACTION can be brought upon a verdict, before judgment is signed. (1) There is a distinction, however, still taken between a verdict in an action on a contract, and a verdict in an action on a tort (2); —it having been recently decided by the Vice-Chancellor, that where in an action ex contractu, the verdict was before bankruptcy and the judgment afterwards, the costs de incremento are incorporated with the existing debt by the verdict, though not ascertained in amount until the judgment—and were, therefore, proveable under a commission; but that in tort there is no debt whatever, with which the costs can be incorporated, until the judgment. (3) This distinction, however, does not seem to have been much attended to by the Court of Exchequer in an action for damages on a tort, in which a verdict was taken subject to a reference and in which, though the award was not made, nor the judgment entered up until after the defendant's bankruptcy — it was decided, that both costs and damages could be proved under the commission (4), -- a decision, utterly at variance with the principle previously laid down by the Lord Chancellor, and the Courts of King's Bench and Common Pleas, in the previous cases of ex parte Hill, ex parte Charles, and Walker v. Barnes. The judgment, indeed, in this case, though not entered up until after the act of bankruptcy, was entitled as of the PREVIOUS term (5), and this may probably have been taken into consideration by the Court, though it is not stated as a reason for the judg ment; for on no other principle, is it apprehended, can this decision be supported. (1) Walker v. Barnes, 1 Marsh, 346. 5 Taunt. 778. (2) This distinction appears to have been first acted upon by the present Vice-Chancellor, though it was previously approved of by Lord Eldon in ex parte Hill, and was also taken in argument in Longford v. Ellis, 1 H. B. 29. (3) Ex parte Poucher, 1 G. & J. 385. Ex parte Parkinson, ibid. 386. note (a). (4) Beeston v. White, 7 Price, 209. (5) And see, as to the relation back of a judgment to the first day of the term in which it is signed, the recent case of ex parte Birch, 4 B. & C. 880. A new line of distinction, also, has been lately adopted Costs. by the Court of King's Bench,-where it has been holden, Where that, if the judgment in an action of tort be obtained before judgment the issuing of the commission, though not until after the act obtained before of bankruptcy, the judgment for both damages and costs commismay then be proved as a debt bona fide contracted before sion, costs the issuing of the commission, within the meaning of the proveable. 46 Geo. 3. c. 135. s. 2.,- and, consequently, within the' 47th section of the present statute (1), which adopts the same provisions. then Upon a careful review of all the above cases, the follow- Rules deing rules seem to be clearly deducible from them: duced from all 1st. Where the verdict is not obtained until after the act the cases. of bankruptcy, the costs can in no case be proved, whether the action is on a contract, or in tort. 2d. Where the verdict is before the bankruptcy, and judgment is obtained before the issuing of the commission though not till after the act of bankruptcy then the costs in actions both of contract, and of tort, may be proved, as a debt contracted before the issuing of the commission, provided the creditor, when judgment was obtained, had no notice of the act of bankruptcy. 3rd. Where the action is on a contract, and there is at verdict before the bankruptcy, then, although judgment be not obtained until after the bankruptcy, and even after the issuing of the commission, the costs are proveable, as being consolidated with the original debt by the verdict, though not ascertained until the judgment. 4th. But where the action is in TORT, and the bankruptcy, as well as the issuing of the commission, occur between the verdict and the judgment; — - then, as there is no debt whatever with which the costs can be incorporated until the judgment, the costs in this case cannot be proved. With respect to costs upon a judgment of nonsuit, the statute, as has been already observed (2), is wholly silent, (1) Robinson v. Vale, 2 B. & C. 762, 4 Dowl. & R. 430. Ex parte Birch, 4 B. & C. 880. (2) Ante, page 274. note (2). As to costs upon a nonsuit; Costs. may be proved, if judgment entered up before commission. In some not prove making no provision whatever for the proof of a defendant's costs, whether on a judgment of nonsuit, or judgment after a verdict. It was, indeed, formerly determined, that where the nonsuit was before the bankruptcy of the plaintiff, the costs might be proved, though the judgment was not obtained till afterwards on the ground that the costs related back to the nonsuit (1), by virtue of which the debt might be said to exist before the bankruptcy. But this position is to be only found in two of the cases, which were impugned by Lord Eldon in ex parte Hill (2), and which seem to have been overruled by the above case of ex parte Charles. And it has been moreover since decided, that where a defendant obtains a verdict, and the plaintiff becomes bankrupt before judgment is signed, the costs cannot be proved under the commission, on the principle, that no debt arises in such a case until judgment is signed. (3) But in a subsequent case, where the judgment on a nonsuit was entered up before the commission issued against the plaintiff, though not until after the act of bankruptcy, the costs were held to be proveable (in conformity with the principle, which governed the Court of King's Bench in the above case of Robinson v. Vale) as being a debt contracted before the issuing of the commission. There are several cases, as has been already observed (4), cases costs where costs may be discharged by the certificate, and yet not able, proveable under the commission (5); though formerly the though right of proof was considered co-extensive, in every case, the certifi- with the effect of the certificate. Thus, the costs of all barred by cate. proceedings upon an action of contract, which (for want of a previous verdict) cannot be proved, are, nevertheless, barred by the certificate, as following the original debt. (6) Judgment So, if a judgment recovered before the bankruptcy be rerevived by vived by scire facias after the bankruptcy, it has been sci. fa. (1) Hurst v. Mead, 5 T. R. 365. Watts v. Hart, 1 Bos. & P. 154. (2) 11 Ves. 646. (5) Walker v. Barnes, 5 Taunt. 778. 1 Marsh. 346. (4) Ante, 274. (5) Per Lord Eldon, 11 Ves.649. (6) Ex parte Poucher, ante, 276. defendant error after decided, that the bankrupt's certificate delivers him from Costs. the costs of the sci. fa., as well as from the original judg- after the ment; but it does not follow, that the costs of the sci. fa., bankwhich have been incurred by the act of the creditor in re- ruptcy. viving the judgment, can be proved (1) under the commission. It has been also decided, where a judgment is Quære: obtained before the bankruptcy-if the defendant after his Where bankruptcy bring a writ of error to reverse it, and the brings a judgment be affirmed-the costs of the writ of error relate writ of back to the judgment, and are barred by the certificate. (2) bankBut it would seem to follow, in this case, that the costs ruptcy. could likewise be proved; for the plaintiff having in reality, though not effectually, obtained judgment before the bankruptcy, the case seems to fall within the above clause of the statute, which enables a plaintiff to prove for the costs incurred in obtaining judgment against any person who shall afterwards become a bankrupt, though not taxed at the time of the bankruptcy; and a judgment of affirmance in error is equivalent to pronouncing judgment (3) in the original action. And where the judgment is not obtained until after the bankruptcy, in an action for a debt, and the defendant brings a writ of error which is nonprossed-the defendant being held to be discharged by his certificate from the costs (4)—it is apprehended, that the costs in this case might be likewise proved under the commission; for, the action being on a contract, they may be considered as incorporated with the original debt, according to the principle of the foregoing cases; and being incurred, moreover, by the act of the bankrupt, and not by the act of the plaintiff, it would be unreasonable to hold, that the bankrupt should be discharged from them, and the plaintiff be at the same time unable to prove them under the commission. (5) (1) Phillips v. Brown, 6 T. R. 282. (2) Ibid. (3) 3 M. & S. 326. (4) Scott v. Ambrose, ibid. (5) The most consistent rule, as it appears, would be, when the costs are thus occasioned by the Costs. Costs in ruptcy. Before the new statute, the costs of a suit in Chancery not taxed till after the bankruptcy, though the order for Chancery taxation was made before, could not be proved under a proveable, commission,-it being held that it was the taxation which though not taxed till constituted the demand (1), and that that could not relate after bank back to the order. But now, by reference to the above section of the statute, it will be seen, that where the order or decree is obtained before the bankruptcy, the costs of obtaining it may be proved, though not taxed till after the bankruptcy. Whether the words of the section will include the costs of a suit directed to be paid by an award, where there is no order or decree for the reference, remains to be decided. (2) Where damages contin gent, can not be proved. SECTION XX. (And see ante, "Judgments" and "Costs.") Where damages are contingent and uncertain, as in all cases of tort- and also in many cases of a demand founded upon contract, as where the damages remain to be inquired into, or where damages may only by possibility arise on a stipulation not previously broken- they cannot in either case be proved under a commission. (3) For the 56th section of the act, which we have already considered (4), would not, it is apprehended, meet the last of these cases; that section applying solely to proof of a debt (that is, a sum certain) payable on a contingency—and not to an uncertain sum payable upon an uncertain event. |