ALBANY, Fub 1804, Livingston V. Rogers. 3 Wils. 185 + By Benfon, who was at that time on the bench. laft count is good, but the damages being entire, the judgment must be arrested. The cafe of Crosby v. Adams and Bellamy, decided in this court in July term 1795, and afterwards reverfed upon error, is stated alfo to be in point. The counts in that caufe were precifely the fame, as to laying the time of the mutual promises, and if the court of error went Cowp. 276. upon the fame objection that I have been confidering, as was fuggefted in the argument+ of this caufe, that decifion is fufficient to uphold this opinion. Though it is not now neceffary to confider the want of a record authorizing the trial, which was urged as another ground for arrefting the judgment, yet, as connected with the other, it may not be inexpedient to notice it. It appears from the record, that on the first trial a verdict was given for the defendant, and an exception taken to the opinion of the judge. That, upon the removal of the cause into the court of errors, the judgment of this court in favor of the defendant was reverfed, a venire de novo ordered, and the record was remitted back to this court. This order of the court above was correct. Not having the record before them, but only a tranfcript of it, they could not of themselves award a venire de novo, but, agreeably to the English precedents, they very properly adjudged that the court below fhould make fuch an award. This is all that appears before us. This court never has made an award of a venire de novo in pursuance of the direction of the court of errors. The second trial was confequently 76. Cro. Jac. without any authority, and in my opinion, altogether null 403. L. Ray. and void. There certainly never was an inftance of a new Skin 514. 2 1. trial had without any award by the court for the fame, and without any record of fuch award, and fuch new trial held good, merely in confequence of the appearance of the defendant. A defect of record is moveable in arrest of judgment,|| and is a deficiency that is not in any fhape amenda- Rot. Abr. ble. Irregularities in the content, or in the execution of jury- Abr. tit. Aprocess are amendable. The process is amendable by the roll, and the circuit record is amendable by the iffue-roll. So mere continuances may be entered after judgment, but no cafe ever came up to the prefent. In this there was a trial without any award for it whatfoever, either upon the record or the minutes of the court. The circuit judge had no authority to try a fe § 2 Saund. 83. 4 Bro. Pa. Ca. 288. 1 Lill. 10. V. ID & E Ent. 243. Yelv. 206. 1 Salk. To Carth. 319. Black.211. 200 pl. 27. Bac, mendment. (D).) 4. Ib. tit. Jurics J. Feb. 1804 Rathbone V. Murray. • Latch. 194. Hob. 76. ALBANY, cond time the matter in iffue on the iffue-roll; without an award of a venire de novo by the court. There are cafes where a trial has been held void, because the venire was not warranted by the roll, and the cause was tried by a different than that which the record directed. To hold this a jury mendable in the prefent cafe would be unprecedented, and in my opinion, would tend to the abolition of all regularity, form and order in our practice and judicial proceedings. I hold it effential that it fhould be made to appear, that previ ous to the laft trial there was an order for a venire de novo, the court of errors not having of themfelves made fuch an order, and not having the authority to do it. As then the fecond trial was without any award of a venire, it was an abfolute nullity, the judgment must be arrested, unless the party choose to move to award a new venire. As there is one good count in the declaration, the plaintiff may, if he choose, on the first ground fue out a venire de novo, and may also † 7. D.& E. 56 amend his three firft counts by striking out the words "af "terwards, to wit," being the ground on which the judg ment ought to be arrested. This, however, must be on payment of costs fince declaring. On the point of amending by $ Confifting of enlargement of the damages laid, the court is divided, cononly Kent and 1 hompfon J's fequently the plaintiff in this refpect takes nothing by his no others giv- motion. ing any opinion. If commiffioners of their declaring rupt, specify Rathbone against Blackford, Manucaptor of Murray. IN July term 1801 judgment was entered against Murbankruptcy in ray, for whom the defendant was special bail. In the fame a man a bank- term a capias ad fatisfaciendum was returned non est against the day when Murray, and thereupon a capias in debt on the recognizance he became fo, of bail was iffued against the bail, which was alfo returned and served on the 3d day of July, being the laft day of the having no au- term. A judgment was obtained against him in the October term following. it is not con clufive as to the time, they thority to decide it. If a man go to prifon on the firft continue there Blackford was committed to prifon on mefne procefs on of the month, the first of July 1801, and continued there 60 days without 60 days, in the finding bail. A commiffion of bankruptcy iffued against him time he is fix the 20th November 1801, and the commiffioners declared he courfe of which ed as bail for anoth r, and at became a bankrupt on the first of July 1801; and he Feb. 1804. V. Rathbone was regularly discharged under the bankrupt act. Since his ALBANY, discharge a fi. fa. had issued, and Blackford's goods taken on it. Per curiam. A motion is now made on the part of the defendant to set afide this execution, and to stay all further proceedings against him. He contends that his act of bankthe expiration ruptcy was not complete till the expiration of fixty days af- of that period ter his confinement, or until the first of September 1801; bankrupt and, that inafmuch as he was fixed as Murray's bail on the for, duly fued 31ft of July 1801, this debt could have been proved under out, he will be the commiffion, and that, therefore, the present proceedings from his recogare irregular. This naturally produces an inquiry, be declared on a commif exonerated nizance, and an execution taken out upon it be fet afide. In First, As to the time of Blackford's becoming a bank- fuch a cafe the rupt, and plaintiff may prove his debt under the com Secondly, Whether this demand could have been proved miffion. under the commiflion against him; for if fo, it is not denied that he is entitled to relief. By the first fection of the act of congrefs "eftablishing "an uniform fyftem of bankruptcy," the remaining'in prifon two months or more on being arrested for debt, is made an act of bankruptcy. Blackford went to jail on the first of July 1801, and continued there above fixty days; the plaintiff infifts that by relation he became bankrupt on the day he went into confinement, and that not being then fixed for Murray's debt, the prefent demand was not proveable under the commiffion. The commiffioners, it is true, have undertaken to fix that, as the day on which he became a bankrupt; but in this, if they have not exceeded their powers, they have at least done a nugatory act which is binding on no one. They are to declare the party a bankrupt, but no authority is given to ascertain the day of his becoming so. Nor would it have been difcreet to have vested such power in them, for their proceedings being fomewhat ex parte, and very fummary, so important a fact in which many, who had no opportunity of being heard might be interested, fhould not, unless abfolutely neceffary, have been left to be fettled by them. Thus in England, the commissioners being fatisfied of the debt, the trading, and act of bankruptcy, declare and adjudge, that the party became bankrupt ge Feb. 1804. Rathbone V. Murray. ALBANY, nerally before the date of the commiffion without a moré precife fpecification of time. Fixing the time even thus far, is merely difcretionary and, for caution, the English ftatutes having no where directed them to do it, nor is their declaration, as to the period, ultimately binding on any one. Cull. Bank. laws, 77. Without any doubt, therefore, it is competent to the defendant to controvert this act of the commiflioners so far as it refpects the fixing on the day of his becoming a bankrupt, and to fay that it was not till long after he became fo. It becomes neceffary then to determine whether the act of bankruptcy fhall relate back to the time of the party's going to jail, or whether it be only inchoate on the arreft, and not complete till the fixty days expire. Englifh decifions on this point will afford us but little aid, because it is provided by their law, that if a man "lie in prifon "two months he shall be accounted a bankrupt from the time "of his first arreft," 21 Jac. 1 ch. 19. S. 1. This is thought to be reasonable from a prefumption that no man will lie fo long in prifon without paying his debts or procuring bail, unless he be infolvent at the time of the arrest, 2. Bun.819. However ftrong this prefumption, as the legiflature of the United States have thought proper not to adopt this provision of the British statutes, we are at liberty to apply a conftruction of our own. This relation to the moment of committing an act of bankruptcy is confidered as one of the hardeft cafes of which the English law admits, but was thought neceflary to fecure creditors against fraudulent difpofitions of their property by bankrupts, whether by their own acts or under colour of legal procefs 1 Vez. 328. It is certain that men in tottering circumstances have too much tempta tion, as well as opportunity of defeating their creditors of an equal diftribution of their effects. But while interpofing checks against practices of this kind, we should be careful not unneceffarily to adopt fictions which may ope rate with severity on other perfons as well as the bankrupt; and therefore, where it is impoffible any fraud can be prac tifed in creating a debt to injure other creditors, and where the evidence of it is matter of record, and the tranfaction is evidently bona fide, I would not exclude it from proof under Feb. 1804. Rathbone V. Murray. a commiffion by fictitious relations, provided it fell due, or ALBANY, the contingency on which it was payable happened at any time previous to the expiration of the fixty days. It is hard that the future industry of a bankrupt, after a fair furrender of his property, fhould be taxed or burthened with claims which were in a ftate of maturity at the time of iffuing the commiffion; and it is equally fo on a creditor of this defcription to be denied any part of his eftate, and to be compelled to trust for payment to the precarious profits of his subsequent exertions. Without, therefore, prescribing a ge neral rule, which is not neceffary, I fhall only fay that in this case, the act of bankruptcy should not be regarded as confummated until the lapse of fixty days. We are now to see, Whether the plaintiff's demand, on this principle, could have been proved against the estate of Blackford. The 34th section of the bankrupt law provides, "that "the bankrupt fhall be discharged from all debts by him "due or owing at the time he became bankrupt, and all «which were or might have been proved under the com"miffion." But for this provision, the certificate would operate unequally, for if creditiors whose debts arose subsequent to the bankruptcy, were permitted to share with thofe whofe demands accrued before, the latter would be exposed to the hardship of having only a dividend under the commiffion, while the former, befide an equal dividend, would retain a remedy for the refidue against the brankrupt himself and his future property. The privilege, therefore, of creditors to prove, and of the bankrupts to be discharged from debts, is wifely made co-extensive and commensurate, 1. Atk. 119. Still difficulties must occur in the application of this rule as to the time when a debt shall be faid to accrue. To aid in folving thefe difficulties, debts have been claffed into fuch as are abfolute or certain, that is, payablę certainly and at all events, and contingent or payable only on the happening of fome uncertain event or contingency. The demand against Blackford is of the latter kind. Murray did not pay the condemnation money, or render himself to the fheriff for the fame: Blackford contracted to pay it for him. If the contingency of Murray's not paying |