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he ought not, therefore, still remaining assignee, to call for this return in the face of his own admission.

GASELEE J. The assignment to the Plaintiff is subsequent to the discharge of the Defendant, and that is decisive. The Defendant's petition shews where he is in custody, and his schedule, for what debts. The Plaintiff, therefore, must have been aware of all the circumstances when he consented to become assignee.

BOSANQUET and ALDERSON JS. concurring, the rule for discharging the rule for a return was made

Absolute.

1831.

HEPWORTH

v.

SANDERSON.

SHERLOCK v. BARNED.

Nov. 12.

former trial are to abide the event of a new

costs of the

UPON the first trial of this cause the Plaintiff obtained When the a verdict, which the Defendant moved to set aside, on the ground of an alleged misdirection of the Judge. The Court directed a new trial, and by the terms of the rule the costs of the former trial were to abide the event.

The Defendant having obtained a verdict on the new trial, the prothonotary allowed him the costs of that trial only; whereupon

Wilde Serjt. obtained a rule for the prothonotary to review his taxation, and allow the costs of the former trial also.

Jones Serjt., who shewed cause, contended, that by the practice of both Courts, when the costs of the for

trial, if the same party succeeds on the new trial,

he has the costs of both trials; if a different party, he has only the costs of

the new trial.

1831.

SHERLOCK

V.

BARNED.

mer trial were to abide the event, if the same party succeeded on both trials he had the costs of both; if a different party, he had only the costs of the last trial. Chapman v. Partridge. (a)

Wilde. In Chapman v. Partridge the Court said, that the words of the rule ought to be construed with reference to the question which must have been depending, namely, whether the new trial should be granted upon payment of the costs of the first by the defendant; and upon that principle proceeded the decision in Brown v. Boyn. (b) Here, the Plaintiff, having obtained the first verdict through the misdirection of the Judge, was not entitled to exact the costs of the first trial as the condition of allowing the Defendant to go down again; and the Defendant having now established that the Plaintiff never had any cause of action, ought, in justice, to be indemnified for all the expense he has incurred. With reference to the question here, the rule, that the costs of the former trial shall abide the event, must be construed as a sort of bargain made with the Defendant to ensure him ultimately against the vexation of an unfounded suit.

TINDAL C. J. We ought to adhere to the rule generally received in this Court, and universally in the Court of King's Bench, that a party who succeeds on a second trial, not having succeeded on the first, is entitled to the costs of the second trial only. There has been no bargain here to take the case out of the ordinary rule. A misdirection was alleged, and the Court feeling a doubt, sent the case down for a second enquiry. The Defendant was put under these terms to ensure to the Plaintiff the costs of both trials, in case the verdict should be the

(a) 2 N. R. 382.

(b) 5 B. M. 309.

same

same way a second time; for a party does not pay the costs of a trial on which he succeeds.

GASELEE J. There never has been any variance between the practice of the two courts on a rule worded like this; and if there were any bargain between these parties to a different effect, it ought to have been clearly expressed.

BOSANQUET J. concurred.

ALDERSON J. The condition that the costs of the former trial shall abide the event, is a condition in favour of the party against whom the rule for a new trial is granted. The party applying for a new trial must take it on any terms which the Court may think fit to impose. The party against whom the application is made is already in a favourable position, and can scarcely be called on to pay costs for his success. Rule discharged.

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POWELL v. EASON.

Nov. 14.

insolvent is not exonerated

THE Defendant had been discharged under the in- A discharged solvent debtors' act in February 1830. The Plaintiff, as a surety, had joined the Defendant from the claim in a promissory note to one Bell, which became due of a surety, before the Defendant had filed his schedule in order who pays, subsequently to to his discharge. The schedule specified the debt to the discharge,

Bell.

This note, the Plaintiff, after the Defendant's discharge, was called on to pay, and having paid it in December

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a debt due * before.

1831.

POWELL

บ.

EASON.

December 1830, sought by this action to recover the amount from the Defendant. The Defendant had inserted the Plaintiff's name and the amount of the promissory note in his schedule.

A verdict having been obt ined for the Plaintiff,

Adams Serjt. obtained a rule nisi to set it aside, on the ground that the Defendant, by his discharge under the insolvent debtors' act, was exonerated from any such demand.

Wilde Serjt. was to have shewn cause, but the Court called on

Adams to support his rule. He contended that the general object of the insolvent debtors' act, 7 G. 4. c. 57., was to give the debtor a complete discharge from all his embarrassments, which object would be defeated if, notwithstanding a discharge from the claim of a principal creditor, he should afterwards be liable at the suit of a surety to such creditor. The insolvent is not to take the benefit of the act a second time within five years, except in certain cases, of which a suit at the instance of a surety is not one; if, therefore, this action lies, the Defendant may, for five years, be deprived of the benefit of the act. By section 60. he is to be released from arrest for any debt or sum or sums of money due before his discharge; and the words sum or sums of money seem to have been intended to apply to such a demand as the present. So by s. 51. he is to include in his schedule sums payable by way of annuity or otherwise. In Wilmer v. White (a) the Court did not decide this question, but merely refused to interfere summarily on motion.

(a) 6 Bingh. 291.

Heath

Heath Serjt. was on the same side.

TINDAL C. J. I think the verdict for the Plaintiff ought to stand. The question arises on the construction of the insolvent [debtors' act, and we are to take the description of the debts from which the insolvent is to be discharged from the tenth and forty-sixth sections of the act. The tenth, which authorizes the insolvent's petition, describes them as "the demands of all persons who shall claim to be creditors of such prisoner at the time of presenting such petition."

And s. 46. authorizes his discharge from custody "as to the several debts and sums of money due or claimed to be due at the time of filing such prisoner's petition."

Then, was the Plaintiff a creditor of the Defendant at the time of presenting his petition? There was no debt as between him and the Defendant; the debt was due from the Defendant to Bell, the Plaintiff was no more than a surety, and consequently no creditor at the time of the discharge. As a confirmation of this view of the subject, we find that in an act passed the year before, the bankrupt act 6 G. 4. c. 16., a machinery is employed to relieve the bankrupt from the claim of a surety, for he may pay the debt and stand in the place of the original creditor. There is no such clause in the present act, from which we may infer that the legislature intended to discharge a bankrupt from such claims, but not an insolvent.

GASELEE J. I am of the same opinion. There is no possibility for a surety to claim under the insolvent debtors' act, except by paying the debt before the insolvent's discharge.

BOSANQUET J. The Plaintiff is entitled to retain his verdict: the debt for which he sues, became due subsequently

1831.

POWELL

v.

EASON.

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