temp. rdw. Ch. 262. an act of ankruptcy etween the ime of becoming bail in error, and the af William Donalfon, the bankrupt; and alfo, upon two contingencies, viz. if Martha Latimer married him, and furvived him. And this judgment was afterwards affirmed in the Exchequer chamber. The court alfo cited the cafe of Hockley v. Merry, 2 Stran. 1043. as very applicable to the prefent cafe. Merry, the defenhere there dant there, on the 9th of May 1734, was bail on a writ of error. On the 23d of October 1734, he committed an act of bankruptcy; and, after a commiffion, obtained his certificate. On the 12th of November 1735, the Judgment was affirmed. And in debt upon the recognizance of bail, he pleaded his discharge; and that the caufe of action accrued before he became a bankrupt. fmance, the And the Chief Juftice (Lord Hardwicke), on the trial, held, that the defendant was not difcharged, according to the cafe of Tully v. Sparkes (above cited), for this was but a contingent debt, for which the plaintiff, Hockley, could not come in under the commiffion; the statute of 7 Geo. 1. c. 31. only letting in those where the payment was certain, though future. There was a verdict for the plaintiff. party is not discharged from his recognizance. See Barnes 113. Where the breach of a bond of indemnity is after a bank. ruptcy, the bond is not discharged. 2 Kel. 239. nard. B. R. They alfo cited the cafe of Crookshank v. Thompson, 2 Stra. 1160. where the defendant gave a bond of indemnity, and before any breach, became a bankrupt; and being fued, moved to be dif charged on common bail: But the court compared it to the cafe of Tully v. Sparkes (above cited), and ordered he fhould give fpecial bail. The cafe of Macarty v. Barrow, 2 Stra. 949. was cited pl.191.2 Bar- for the defendants; and the Lord Chief Juftice Wilmot faid, that it was the only cafe which, at the first blush, seemed to S. C. & S. P. clafh with the cafes above cited. Sir John Strange has re 251, 255. ported the cafe to this effect; viz. "The defendant, Barrow, in January 1728, drew bills on Spain, which in March were returned protested, for non-acceptance; between the drawing and return, he became a bankrupt; and being fued to execution, as the drawer, he moved, on the act 5 Geo. 2. c. 30. to be dif charged." Strange, contra, infifted, that this caufe of action arofe upon the non-acceptance and proteft, which are both neceffary to be averred, in order to maintain the action; and the charges thereof are to be recovered. Sed per curiam, the principal is the drawing the bills, and therefore he must be difcharged. (Quare tamen, fays the report). The Chief Juftice (Wilmot) faid, he had looked into his own note of this cafe, taken by himfelf at the bar, in Eafter term, 6 Geo. 2, and that he, and other gentlemen his cotemporaries at the bar, ufed to confer and compare their notes together; and that therefore his note of this cafe was probably more accurate and full than Sir John Strange's Strange's report of it. And that the cafe was thus; viz. "The defendant, Barrow, in December, and until January 1728, drew bills upon merchant's at Bilboa in Spain; that after the drawing of thefe bills, Barrow became a bankrupt; and afterwards, in February following, the bills were returned unaccepted and protefted: Whereupon the defendant was arrefted; and being fued to execution, moved to be discharged upon the ftat. 5 Geo. 2. c. 30. Strange infifted, that the caufe of action did not arife. against Barrow, until the non-acceptance and proteft: But it was refolved by the court, that Barrow contracted the debts the very inftant when he drew the bills, which was before the act of bankruptcy; and that the non-acceptance or protest did not raise any debt, but was only notice to the party who held the bills, that the drawee would not pay the fame; and was as much as to fay, "I will not pay the bills, and you may go back to the "drawer, and he must pay you." The court held the debts to be debita in prefenti folvenda in futuro by the drawer; and the Chief Justice Wilmot faid, that the ftat. 7 Geo. 1. c. 31. extends to all fecurities given on good confideration; that the drawer of a bill of exchange, inftantly upon his drawing the bill, contracts a debt; and a proteft is nothing but a notice that the drawee will not pay it. Upon the whole; no debt can be barred, but what was a debt contracted with certainty before the act of bankruptcy. Did the defendants owe to the plaintiff Chilton, 308/. 10s. and cofts, before he rendered his body in fatisfaction thereof? (which we take to be the fame thing as if he had actually paid the debt and cofts). They certainly did not. They had promised to pay the money, to furnish the money to take up the bill and note, and to fave the plaintiff, Chilton, harmless; they broke their promife, Chilton was terrified and arrefted. Here is an injury to a certain degree, but no debt owing by the defendants to Chilton, before his body was in execution for the certain fum. How could the plaintiff, Chilton, at the time of the commiffion of bankruptcy iffued, have fworn to a debt, before he had advanced a fhilling for the defendants? He certainly could not: But now his body being in execution, he has thereby paid the debt. So the poftea must be delivered to the plaintiff, and he muft have judgment. Per totam curiam. Vol. III. EASTER EASTER TERM 9 GEO. III. 1769. getting plain tiff's daughter with Tullidge verfus Wade. C. B. Treffs for TRESPASS against the defendant, that he with force and arms made an affault upon A. B. daughter and fervant of the plaintiff, and got her with child, whereby he loft the benefit of her fervice for a certain space of time, and was put to great charge and expence in her time of lying-in: The defendant pleaded not guilty. The caufe was tried before Mr. Juftice Gould, at the laft affizes; when the jury found a verdict for the plaintiff, and gave him 50l. damages. child per quod fervitium amifit. Damages 50l. and a new trial was re Serjeant Davy moved for a new trial, and grounded his mo not exceffive, tion upon an affidavit tending to fhew, that under the circumftances of the cafe appearing at the trial, the damages were exceffive; and alfo, that evidence was given, at the trial, of a promife of marriage made by the defendant to A. B. which ought not to have been permitted, because fhe may have another fort of action upon that promife. fufed. [See fee Id. p. 166. in fuch ac Whereupon Mr. Juftice Gould made his report to the court; tions will not and, after fating the declaration as above, he faid, that A. B. readily grant the plaintiff's daughter was called as a witnefs at the trial, and the ground of fwore that the plaintiff was a maltfter, and kept a public house; a new trial on exceffive damages.] that fhe was his daughter and fervant, and was about thirty years old; that the defendant was an excifeman, made his adrrelles to her as a lover, with an intention (as fhe then thought) to marry her; that he was well received on that account by the plaintiff her father, and very civilly treated by him and his family, and often spent the evening with them: She alfo fwore, that he promifed her marriage, and got her with child. The brother of A. B. was alfo called, who depofed that the plaintiff was wholly deprived of A. B.'s fervice and affiftance in his bufinefs, and paid fome money on account of her lying-in. The counfel for the defendant, at the trial, objected to the evidence given, as to the promise of marriage; upon which A. B. offered offered to give the defendant a release as to that promife; but the counsel for the defendant refufed to accept thereof. Upon fumming up the evidence to the jury, the Judge (Gould) was pleafed to fay, that he told them over and over again, that, in giving damages in this action, they muft not confider the injury done to A. B. as to the promife of marriage, but muft leave that matter quite out of the question, because A. B. might have her action for breach of that promife; that he thought the plaintiff, A. B.'s father, was by nature bound to take care of her while fhe laid in, and that they fhould confider his expences on that account, as well as his lofs of his daughter's fervice. Whereupon the jury gave 50l. damages, with which the judge faid he was not at all diffatisfied; and that he thought, if the jury had then confidered the promife of marriage, they would have given fix times as much damages. Lord Chief Juftice Wilmot. Actions of this fort are brought for example's fake; and although the plaintiff's lofs in this cafe may not really amount to the value of twenty fhillings, yet the jury have done right in giving liberal damages; and if A, B. brings another action against defendant for the breach of promife of marriage, fo much the better; he ought to be punished twice. A. B. being of the age of 30, is nothing to mitigate damages, or leffen the defendant's fault, and we will pay no regard to any affidavit read to us, Brother Gould being fatisfied with the verdict; if much greater damages had been given, we fhould not have been diffatisfied therewith; the plaintiff having received this infult in his own houfe; where he had civilly received the defendant, and permitted him to make his addreffes to his daughter. Clive Juftice. If the jury had given 100l. damages, I fhould not have thought them too much. Bathurst Juftice. To be fure, the giving the promise of marriage in evidence at the trial of this caufe, was very improper; but as the jury were cautioned not to take notice of it, I am inclined to think they did not; for if they had, I think they would have given more than 50l. in damages. In actions of this nature, and of affaults, the circumftances of time and place, when and where the infult is given, require different damages; as it is a greater infult to be beaten upon the Royal Exchange, than in a private room. I am of the fame opinion with my Lord Chief Juftice and my brothers. Serjeant Davy took nothing by his motion; fo the plaintiff had judgment per totam curiam. MICHAELMAS TERM 10 GEO. III. 1769. Declaration in trefpafs for taking plaintiff's hog. ift Plea, not guilty; iffue thereon. 2d Plea, that defendants took the hog damage feafant, and im pounded it. Dye verfus Leatherdale and Simpson. C. B. Norfolk, JOHN OHN Leatherdale, late of, &c. and Cornelius Simpfon, late of, &c. were attached to answer John Dye, of a plea, wherefore, with force and arms, &c. the faid J. L. and C. took a certain hog of the faid J. D. of the value of, &c. at Frenze in the county aforefaid, there found and being, and drove and carried away the fame, and converted and difpofed thercof to their own ufe, and there did other wrongs to the faid 7. D. to the great damage of the faid J. D. and against the peace of our faid lord the now king, &c. and thereupon the faid 7. D. by Robert Greenacre his attorney complains, that the faid . L. and C. on the first day of September, in the year of our Lord 1768, with force and arms, &c. took a certain hog of the faid J. D. of the value of four pounds, at F. aforefaid there found and being, and drove and carried away the fame, and converted and difpofed thereof to their own ufe (to wit) at F. aforefaid, and then and there did other wrongs to the faid J. D. to the great damage of the faid J. D. and against the peace of our faid lord the now king, &c. wherefore the faid J. D. faith, that he is injured, and hath fuftained damage to the value of 4. and thereupon he brings this fuit, &c. And the faid 7. L. and C. by Henry Browne their attorney, come and defend the force and injury when, &c. and fay, that they are not guilty of the trefpafs aforefaid, above laid to their charge, in manner and form as the faid J. D. hath above thereof complained againft them, and of this they put themselves upon the country, and the faid 7. D. likewife. And for further plea, as to the taking the faid hog, in the faid declaration mentioned, and driving and carrying the fame away, by the said J. L. and C. above supposed to have been done, |