Cone v. Whitaker

2 Johns. Cas. 280

Opinion

Per Curiam.

The costs in this case were not taxed at the time of the defendant’s discharge ; and being uncertain and unliquidated, they could not be included in his inventory of debts; nor could the present plaintiff recover them until taxed. They cannot, therefore, be affected by his discharge; and the plaintiff, on the principle laid down in Frost v. Carter, (

a) must be paid. The motion is denied.

Motion denied.(b)

(a) [Old note.] 1 Johns. Cas. 73. The decision in the above case, seems to have been grounded on the rule laid down, by Lord Chancellor Thurlow, in the case Ex parte Sneaps, March 4th, 1782, cited in Cooke’s Bankrupt Law, (p. 241, 3d ed. c. 6, s. 13,) in which the Chancellor said it was clear, that, in all instances, in the court of chancery, the taxation constitutes the demand ; and as the taxation was subsequent- to the bankruptcy, the debt was subsequent, and could not’be discharged. (See also 3 Wils. 270, 272.) But there are other cases in which the costs are carried back, by relation, to the verdict or judgment. (Aylett v. Harford, 2 H, Bl. Rep. 317. Cooke’s B. L. c. 6, s. 10. Lewis v. Piercy, 1 H. Bl. 29.) In the case of Hurst v. Mead, (5 Term Rep. 365,) it was decided, that if the plaintiff becomes a bankrupt, after he is nonsuited, and before.the taxation of costs, the costs of the nonsuit are a debt proveable under the commission. (See also Philips v. Brown, 6 Term Rep. 282, and Watts v. Hart, 1 Bos. & Pul. 134.) In Willett v. Pringle, (5 Bos. & Pull. 190, or 2 Bos. & Pull. N. S.) the court decided, that the costs followed the debt, and that if a bankrupt be sued after his commission, and he afterwards obtain his certificate, he shall be discharged from the costs as well as the debt. Bnt it is observable, that Lord Eldon, m Ex parte Hill, 1801, (cited in a note to Willett v. Pringle,) after going through all the authorities, which he examines very critically, decided, that the costs of an action, where the verdict was after the commission, could not be proved, though the debt was proveable. It would seem to follow, that, in his opinion, the bankrupt could not be discharged from the costs which had been taxed, on the verdict obtained prior to the commission. The rule appears, therefore, to be different in the courts of common law, and in chancery. (See Cullen’s Bank. Laws, 104,106,133, c. 3. s/2.)

(b) See contra, Thomas v. Striker, infra, vol: 3, p. 90, Warne v. Constant, 5 Johns. R. 335.