the amount of damages laid in the declaration was the criterion by which the plaintiff's cause of action was to be estimated, and consequently this was not a case requiring bail upon the habeas corpus. F. Pollock, contrà, contended, upon the words of the statute, that the actual debt being only 8l. 17s. 3d. that must be considered as the cause of action, and therefore that bail ought to have been put in on the removal of the cause. But, PER CURIAM (a).-We think the amount at which the plaintiff lays his damages, and not the actual debt, must be considered as the cause of action within the meaning of the statute, and therefore this is not a case requiring bail upon the habeas corpus. Rule discharged without costs (b). (a) Holroyd, J. was gone to Chambers. 1824. ATTENBO ROUGH 0. HARDY. (b) See Lee v. Goodlad, ante, 350. HARRISON v. BAINBRIDge. Monday, costs of a suit PATTESON had obtained a rule to shew cause why the The costs of costs allowed to the defendant by the Court of Chancery a bill in Chancery, dismissupon the dismissal of a bill filed by the plaintiff against the ed in favor of defendant in that Court, should not be set off and allowed the defendant, may be set off against the verdict obtained by the plaintiff in this cause, against the and in the mean time the proceedings stayed, upon an affi- plaintiff's davit, stating, that in Michaelmas vacation, 1820, the plain- in this Court tiff commenced a suit in the Court against the defendant by filing a bill of complaint, to which the defendant put in an answer; that in Trinity Term, 1823, the suit was dismissed, and the defendant's costs were taxed at 607. 10s. 5d., for which a writ of subpoena issued against the plaintiff; that search had been made after the plaintiff, in order to serve for the same cause of action, subject to the attor ney's general lien. 1824. HARRISON v. him with the subpoena and to demand the money, but that he could not be found, and that the money is still due to the defendant; that in Hilary Term, 1823, the plaintiff BAINBRIDGE. commenced the present action against the defendant, which was tried at the Sittings in Hilary vacation, 1824, when the plaintiff obtained a verdict for 150l., and will be entitled to final judgment and execution this term; and that the suit in Chancery, and the present action, were commenced by the plaintiff for the same cause of action, and on the same account, and with the same object. Wightman now shewed cause, and contended, that this was an application to which the Court could not listen. The costs of a suit in equity cannot be set off against a verdict in a cause in this Court. In Doe v. Winch (a), the Court refused to stay the proceedings in an action of ejectment until the taxed costs of a suit in equity, brought by the same party, for the recovery of the same premises, were paid; and the principle upon which the Court acted was explained by Abbott, C.J. in the distinction which he drew between costs at law and costs in equity; "The costs at law," said he," are the legal consequences of the suit; the costs in equity are in the discretion of the Chancellor, and entirely depend upon circumstances." It has also been held, that an action at law is not maintainable upon a decree of a Court of Equity, for a specific sum of money, founded on equitable considerations only; Carpenter v. Thornton (b); therefore, if the award of costs by the Court of Chancery would not support an action, it clearly cannot be set off against the claim consequent upon an action. BAYLEY, J.-The case of Hall v. Ody (c), is a direct authority in support of this application. That was a motion to set off the costs of an action of ejectment recovered by the defendant against the plaintiff in K. B., against the (c) 2 B. & P. 28. (a) 3 B. & A. 602. costs of an action of trespass in C. B. in which the plaintiff' had recovered a verdict; and it was insisted, that in all the cases where a set off of that kind had been allowed, both actions had been in the same Court; but the Court overruled the objection, saying, that a set off had even been allowed between costs in the Court of Equity and costs in the Court of Law; and Heath, J. observed, that he remembered that in a case where an ejectment had been brought in K. B. and afterwards a formedon in C. B., proceedings were stayed in the latter until the costs of the former were paid. ABBOTT, C. J.-That is a decisive authority. Here the application is only to set off the costs of one suit against the other, the subject matter of dispute between the parties being the same; and I see no objection why the costs of the one should not be set off against the other. The rule must be made absolute, subject, however, to the attorney's general lien. HOLROYD and LITTLEDALE, Js. concurred. 1824. HARRISON v. BAINBRIDGE. Rule absolute (a). (a) Vide 2 H. Bl. 248. 6 T. R. 456. 1 Taunt. 426. 8 East, 362. 1 M. & S. 240. Id. 696. 4 Madd. 391. 5 J. B. Moore, 95. 3 B. & A. 52. THWAITES and Another v. GALLINGTON. Monday, of exception ON shewing cause against a rule Nisi for staying the pro- Giving notice ceedings on the bail bond in this case without costs, the to bail, withfacts were these:-On the 10th May, the defendant having out actually been arrested, gave notice of bail to the plaintiffs' attorney, and on the 11th, the defendant's attorney was served with a entering the exception, is nullity, and the irregularity is not waived by the notice of exception, whereupon notice of justification was served for the 15th, on which day the bail were opposed, defendant's and one of them was rejected; and the time for justifying acting upon the notice. 1824. THWAITES v. bail having expired, an assignment of the bail bond was taken it was afterwards discovered that no exception had, in point of fact, been entered by the plaintiffs' attorney in GALLINGTON. the bail book kept at the Judge's chambers, pursuant to the rule M. 8 A. r. 2. and the defendant having perfected his bail, obtained the rule above mentioned, and the question now was, whether the omission actually to enter an exception to the defendant's bail, rendered the plaintiffs' proceedings irregular. Campbell, for the plaintiff, contended, that the defendant had waived the objection by acting upon the notice of exception, which had been served, and that in point of practice the exception need not be actually entered. Chitty, contrà, insisted, that it was necessary actually to enter the exception, otherwise the mere notice of an exception would be a nullity. In Hodson v. Garrett (a), Abbott, C. J. said, "there is no doubt that the exception ought to be entered, according to the practice of the Court, and I do not think the defendant waives his objection by having acted the notice merely, and therefore I think the proceedings irregular. There is something which the plaintiff ought to have done which he has not done." upon The COURT, acting upon the authority of this case, made the rule absolute, upon payment of costs. Rule absolute accordingly. (a) 1 Chit. Rep. 174. See Tidd, 256. and 1 Archbold, p. 83. 1824. BRAMWELL and Another, Assignees of NOAKES, Monday, May 31. Where a trader, at the suggestion of TROVER, by the assignees of William Noakes, a bankrupt, to recover the value of a lease and divers goods and chattels, amounting in value to 280l. 19s. 10d. converted by his attorney, defendants to their own use. Plea not guilty, and issue thereon. At the trial before Abbott, C. J. at the Middlesex Sittings, after last Hilary Term, a verdict was found for the plaintiffs, subject to the opinion of the Court upon the following case: of him whether rested for called a meeting of his creditors, to be held at a given time and place, and on the morning of that day went On the 7th November last, at seven o'clock in the even- to the attorney's office, ing, the lease and goods in question were seized by the and inquired defendants, Mathias Prime Lucas and William Thompson, he could safewho were Sheriffs of London, and also Sheriff of Middlesex, ly attend the under two writs of Elegit, issued on that day, founded on a out being armeeting withjudgment obtained by the defendant Thomas Groves against debt, and the the said William Noakes, for 4,000l. damages, eighty-four attorney havshillings costs; and the only question in the cause was, him to remain ing advised whether the said William Noakes had committed an act of at the office, bankruptcy prior to such seizures under the said writs. In until it was order to prove such prior act of bankruptcy, Mr. Scott was whether the called as a witness on the part of the plaintiffs, and stated would engage that he acted as solicitor to the bankrupt, and in that charac- to give him a ter, and upon his, Mr. Scott's, suggestion to the bankrupt, called a meeting of his creditors, to be held at the George and Vulture Tavern, in Cornhill, at twelve o'clock at noon, on the said 7th November last; that in the morning of that hours, to avoid day the said William Noakes came to the said Mr. Scott's being arrested by some or office, in St. Mildred's Court, in the Poultry, and inquired one of his creof the witness whether he could safely attend such meeting of his creditors without being arrested for debt; that the said Mr. Scott advised him to remain at his office until it ascertained creditors safe conduct; the trader re mained at the office accordingly, for upwards of two ditors, until after the attor ney had at tended at and returned from was ascertained whether the creditors would engage to give the meeting: Held, that what passed between the attorney and the trader, was admissible in evidence upon an issue whether the latter had committed an act of bankruptcy on that occasion. |