Warne v. Constant

5 Johns. 135

Opinion

Per Curiam.

The judgment against the defendant, rendered in February term last, must have been for costs only ; and if they were taxed before the assignment of. the insolvent’s estate, on the 20th of March, (and we must presume from the case that they were,) they were no longer, in any sense, unliquidated damages, and the discharge covers them. But whether this be the fact or not, as to the taxation, the case of Thomas v. Striker, January term, 1802,

(a) seems to put an end to the question. It was there held, that if a judgment be obtained before the insolvent’s assignment and discharge, the costs of that judgment cannot be recovered of the insolvent. The costs were considered as being inchoate with the judgment. The defendant is therefore not liable to be taken in execution under the judgment.

Janes> contra.

It is enough if the debt was liquidated, or capable of being li - quidated, before the discharge. Here the judgment was in October term, and the costs capable of liquidation, at that time ; and we must intend, that the assignment was contemporaneous with the discharge.

Motion granted.

That case was as follows: Whiting moved to set aside a fieri facias, on an affidavit, stating that or the 7th of November, 1808, the defendant was duly discharged under the insolvent act. It appeared, that a judgment of nonpros, had been given on a certiorari, from the judgment of a justice’s court, prior to the 7th November, 1808 ; and that the only question was, whether the plaintiff was entitled to a,fieri facias, for the costs, arising on the judgment of nonpros, entered at the last October term.