1824. BURWOOD v. FELTON. nees, inasmuch as that statute provided that the petitioning creditor should pay all the costs and charges of suing out and prosecuting the commission up to the period when the assignees are chosen; and consequently that he was the party personally liable to the messenger, and not the defendant, who was the assignee. The learned Judge reserved the point; and the jury, under his direction, found a verdict for the plaintiff, the defendant having liberty to move the Court to enter a nonsuit (a). Marryatt, in Hilary Term last, having obtained a rule nisi accordingly, Scarlett and Archbold now shewed cause. The true construction of the statute is this; so long as there are no assets in the hands of the assignees, they are not liable for the expenses attending the commission, and those expenses must be borne by the petitioning creditor; but so soon as the assignees have assets, they are liable, by relation back to the date of the commission, even for those expenses which have been incurred previous to their appointment. [Abbott, C. J. Is not the petitioning creditor liable at all events for the messenger's fees?] Certainly; but the assignees are liable over to him, and therefore to compel the messenger to sue the petitioning creditor, would be to lead to a circuity of action. The messenger is a creditor of the bankrupt's estate, and the funds which pass into the hands of the assignee are money had and received to his use; (a) Another point raised at the trial was this: A letter from the defendant's attorney to the plaintiff's attorney was read, which, it was contended, contained an express promise to pay the sum now claimed, so soon as sufficient funds for that purpose should reach the defendant's hands. The Chief Justice, at the trial, and the whole Court ultimately, was of opinion that the letter did not amount to any such promise; but as the argument and decision depended altogether upon the language of the letter, it was not thought necessary to insert them in the report the case. of 1824. 0. FELTON. and Cooper v. Wrench (a) seems to have decided, that under Marryatt, contrà. Ex parte Hartop (d) is a decisive answer to the point last raised, and is an express authority to shew, that the employment of the messenger by the assignees, after their appointment, does not render them liable for the expenses incurred before that time. With respect to the statute, it specifically provides that the petitioning creditor shall be personally liable for all costs up to the time of the choice of assignees; and the plain intention of such a provision was, that, with respect to such costs, no liability should attach upon the assignees. ABBOTT, C. J.-This rule must be made absolute. The 25th section of the 5 Geo. 2. c. 30. enacts, "That the creditor or creditors who shall petition for and obtain any commission of bankrupt, shall be, and is and are hereby obliged, at his, her, or their own costs and expenses, to sue forth and prosecute the same, until an assignee or assignees shall be chosen of such bankrupt's estate and effects; and the commissioners to be named in any such commission shall, at the same meeting which shall be appointed for the choice of the assignees, ascertain such costs; and by writing under their hands shall direct and order the assignee or assignees of such bankrupt's estate, who is and are hereby required to pay and reimburse such petitioning creditor or creditors such his, her, or their costs and charges 514 1824. BURWOOD บ. FELTON. as aforesaid, out of the first monies or effects of the said bankrupt that shall be got in and received under the said commission." It is perfectly plain, therefore, that by law, an assignee is not liable to pay the messenger the expenses incurred by him previous to the appointment of such assignee. It is equally clear, that by law the petitioning creditor is liable to pay those expenses; and the very statute which renders him so liable, provides also a mode in which he is to be reimbursed. I am therefore of opinion, that the defendant is not liable to pay the plaintiff the expenses incurred by him as messenger before the appointment of the former as assignee; and, consequently, that the rule for entering a nonsuit in this case must be made absolute. The other Judges concurred. Rule absolute. Saturday, STODDART V. PALLMER, Esq. Declaration in IN case against the late Sheriff of the county of Surrey, case for a false return to a prout patet per recor for a false return of nulla bona to a writ of fieri facias, the writ of fi. fa declaration stated, that plaintiff, in Trinity Term in the stated, "that plaintiff, in second year of our Lord the now King, in the Court of our Trinity Term said Lord the King, &c. by the consideration and judgment 2 G. 4. by the judgment re- of the Court, recovered, &c. prout patet per recordum. covered, &c. Plea, not guilty, and issue thereon. At the trial before Abbott, C. J., at the adjourned Middlesex Sittings after last dence being of Michaelmas Term, the record of the judgment being pro a judgment in duced, it appeared that the costs were taxed on the postea in Easter Term in the third year of the King, and an objection being taken that this was a fatal variance, the Lord Chief for the aver- Justice was of that opinion, and accordingly nonsuited the ment, prout plaintiff. A rule nisi being afterwards obtained to set aside dum," the evi Easter Term 3 G. 4. Held, not a fatal variance; 66 patet per re cordum," was the nonsuit, unnecessary, and might be rejected as surplusage, because the judgment itself was mere inducement, and not the foundation of the action (a). (a) Sce Jervis v. Sidney, ante, vol. iii. 483, and Draper v. Garratt, id. 226. Marryat now shewed cause. The plaintiff has set out a judgment in his declaration, and has concluded prout patet per recordum. That is matter of description, essential to his cause of action, and therefore he was bound to give evidence of a judgment exactly corresponding in all its parts with that put upon the record. Pope v. Foster (a). [Abbott, C. J. That case has been repeatedly overruled. Is not the recent case of Phillips v. Shaw (b) decisive against this objection?] That case was decided upon the authority of Purcell v. Macnamara (c), in which, undoubtedly, Pope v. Foster was overruled; but in both those cases an important distinction was taken, within which the present will come. In the former Lord Ellenborough said, "There are two sorts of allegations; the one of matter of substance, which must be substantially proved; the other of description, which must be literally proved:" and in the latter, Abbott, C.J., referring to that very distinction, says, "the allegation in the declaration being of a substantial matter, and not being a description of the record of acquittal, was well supported by the proof;" and then proceeds to give judgment upon the same principle. Now the allegation here is matter of description, and therefore ought to have been proved literally. Again, in Purcell v. Macnamara it was said by Lawrence, J., "Where the day laid is made part of the description of the instrument referred to, the day laid must be proved as part of that instrument ;" and if that rule is applicable to a particular day, it must equally apply to a particular Term. In the present case every count of the declaration concludes with a prout patet per recordum, but in Phillips v. Shaw that was omitted in the count on which the verdict was taken. There it was not necessary to set out the judgment; but here the judgment was the very foundation of the action, and it was indispensably necessary to set it out; and if so, it was equally necessary to set it out correctly to the letter. [Bayley, J. I cannot agree that it was not necessary in Phillips v. Shaw to set out the judgment; the (a) 4 T. R. 590. (b) 4 B. & A. 435. (c) 9 East, 157. 1824. STODDART .0. PALLMER. 1824. STODDART บ. PALLMER. only distinction between that case and the present, is the omission there of the prout patet per recordum.] Scarlett, contrà. The averment of prout patet per recordum in this case was unnecessary; it is therefore an immaterial averment, and need not be proved at all. All that the plaintiff was bound to do, in order to maintain his action, was to shew that he had recovered a judgment; but in what Term he recovered it was quite immaterial, and need not have been averred. The judgment is merely matter of inducement, for the false return is the foundation of the action; the allegation, therefore, was superfluous, and may be rejected altogether as surplusage. The plaintiff has a good cause of action without it, upon the face of his declaration, and consequently he was under no obligation to prove a judgment precisely and literally the same with that which he put upon the record. ABBOTT, C.J.-I am not prepared to say that the ancient rule upon this subject, which was followed in the case of Pope v. Foster, was not founded in wisdom and propriety, or, that we have effected an improvement in modern times by deviating from that rule; for, certainly, some of the recent decisions on this point have a tendency to break in upon the nicety and precision of special pleading. But the distinction between allegations which are matter of substance, and allegations which are matter of description, namely, that the former may be proved substantially, but the latter must be proved literally, is now thoroughly established. It was laid down by this Court in Purcell v. Macnamara, and was recognised and adopted in Phillips v. Shaw; and therefore we are bound to act upon it. Then, if the allegation here," that the plaintiff by the judgment of the Court recovered," &c. is matter of substance only, proof of any judgment that would warrant the writ is sufficient; if it is matter of description, proof of a judgment similar in its date and all its other features, or rather literally the same, |