In Trinity term, 1763, an action was brought thereon in the court of King's Bench against the prefent plaintiff; and that,

In Michaelmas term 1763, judgment was obtained thereon against the present plaintiff, as ftated in the declaration; and thereupon the prefent plaintiff brought a writ of error returnable in the Exchequer Chamber, and profecuted the fame till the affirmance of the judgment herein after mentioned.

That on the 10th of March 1764, the prefent defendant became a bankrupt, and on the 12th of the fame month a commiffion iffued against him; upon which he was declared a bankrupt; that,

In Trinity term 1764, judgment was affirmed in the Exchequer Chamber, upon which the present plaintiff brought a writ of error returnable in parliament; that,

In January 1765, the writ of error in parliament was nonproffed; and on the 21ft of the fame January a writ of fieri facias iffued against the prefent plaintiff's goods, and thereupon the prefent plaintiff paid to the plaintiff in the original cause [James Bond] his debt due from the prefent defendant and cofts; and that,

On the ad of May 1765, the defendant having conformed to the laws relating to bankrupts, his certificate was allowed.

The question for the opinion of the court is, Whether the plaintiff be intitled to recover the debt and cofts, paid by him as aforefaid, and the cofts he himself was put unto?

This cafe came on to be argued before the court in Trinity term laft, and not before; the long delay having been occafioned by fome fruitlefs endeavours to compromise the matter between the parties themselves, and by fome difficulty in fettling the facts of the cafe afterwards, at the diftance of fome years after the cause was tried before Lord Camden. It was then argued by Serjeant Leigh for the plaintiff, and Serjeant Davy for the defendant.

Serjeant Leigh-I conceive, that the plaintiff Goddard is well intitled to recover the fum of money which he has paid for the debt and cofts as before stated, and that he could not have come in as a creditor under the commiffion of bankrupt, and fwear to any certain debt, because it did not become a debt due and owing from the defendant to the plaintiff before the 26th of

January 1765, when he paid the money upon the execution of the fieri facias, which was more than ten months after the defendant became a bankrupt, which was on the 10th of March 1764.

This action is upon a promife to fave harmless, which founds wholly in damages, If one gives a warrant of attorney to confefs a judgment, as a fecurity for faving bail harmless, though the debt for which he became bail be not paid, he cannot fue execution before damnification, Jordan versus Thomkins, 6 Mod.

77.

Upon a fcire facias to have execution of damages recovered in an appeal; the defendant pleaded, that after judgment the testator fued execution by feire facias against the bail, and it was thereupon demurred; adjudged to be no plea because it is not fhewn that he was fatisfied by the execution against the bail; for otherwife, without fatisfaction, he may always charge the prin cipal. Freeman verfus Freeman, Cro. Juc. 549. So in the cafe at bar, the debt owing by the defendant to James Bond, was not fatisfied by the judgment and execution against the goods of the plaintiff Goddard the bail, until he actually paid the money on the 21ft of January 1765.

The cafe of Chilton verfus Whiffin and Cromwell, determined in this court in Trinity term, 8 Geo. 3. is (with deference to the court) a cafe in point; that was an action upon the cafe upon promife, and was in fubftance thus, viz. in confideration that the plaintiff Chilton would accept a bill of exchange, drawn upon him by the defendants for 657. they promised to indemnify him; the plaintiff Chilton accepted the bill, afterwards the defendants became bankrupts, and afterwards Chilton was fued upon the bill, and charged in execution for the debt and cofts; it was refolved by the whole court, that Chilton the plaintiff could not come in as a creditor under the commiffion, and that there was no debt owing to Chilton before his body was charged in execution, which was after the bankruptcy, and that the charging him in execution, was the fame as if he had actually paid the debt; the prefent cafe is ftronger than the cafe of Chilton; for Goddard became only bail or fecurity for, and at the request of Vanderheyden; but Chilton became a debtor to the bill-holders by his accepting the fame at the request of Whiffin and Cromwell.

Serjeant Davy for the defendant-The defendant has pleaded, that on the 10th of March 1764, he became a bankrupt, and on the 12th of the fame month, a commiffion of bankrupt iffued against him, upon which he was declared a bankrupt, and on

the

the 2d of May 1765 obtained his certificate; and that the caufe of action accrued before he became a bankrupt.

The queftion therefore is, When, or at what period of time, did the plaintiff's caufe of action accrue? Whether at the time of the defendant's promise and undertaking to fave the plaintiff harmless, and indemnified from the bail-bond, which was upon the 12th of May 1763, or from the time of the breach of the condition thereof by the defendant's not appearing at the return of the writ, which was on the morrow of the Afcenfion the 13th of May 1763; or, whether the caufe of action did not accrue at the time the judgment in debt upon the bail-bond was obtained against the plaintiff in Michaelmas term 1763? all which happened, in point of time, before the defendant became a bankrupt, which was upon the 10th of March 1764.

I contend that although the caufe of action might not accrue upon the 12th or 13th of May 1763, (which I do by no means admit) yet that it moft certainly accrued in Michaelmas term 1763, when the judgment in debt was figned, and the debt and cofts were reduced to a certainty, and the plaintiff became inevitably liable to the fame.

The breach of the promife, by not appearing, whereupon the bond became forfeited, was a caufe of action; because, although the damage had not at that time fallen upon the plaintiff, yet it was inevitable, which inevitable damage is a good cause of action.

But it will be enough for me to prove, that by the judgment against the plaintiff upon the bail-bond, the debt, which the plaintiff hereby became liable to pay for the defendant, became inevitable in Michaelmas term 1763, before the act of bankruptcy; and the plaintiff might have come in under the commiflion, and made his claim to the amount of the certain fum of the debt and cofts, and whenever he had been taken in execution, or paid the fame, might have been intitled to receive a dividend proportionably with the other creditors of the defendant Vanderheydenthe bankrupt.

To ground the present kind of action, there must not only be a thing done amifs by the defendant, but also a damage, either already fallen upon the party (plaintiff) or elfe inevitable. And therefore, 19 H. 6. 44. if a man forge a bond in my name, I can have no action upon the cafe yet, but if I am fued, I may, for the wrong and damage, though I may avoid it by plea of non eft factum; but if it were a recognizance or fine, I fhall have a writ of deceit presently, before execution. Hob. 267.

The

The Sheriffs of Norwich against Bradshaw, Cro. Eliz. 53. was an action upon the cafe, upon an escape: the plaintiffs declared, that whereas J. S. recovered against the defendant in debt, nine pounds and ten fhillings; and a capias was awarded to take him in execution, by force whereof they made their warrant to the three ferjeants &c. there to arreft him, who did arreft him 25th February, &c.he escaped from them, and afterwards was not found in the faid country, per quod they were bound by reafon of the escape to anfwer the debt, and alfo to expend money for the fearch of him, to their damages twenty pounds; upon not guilty, the jury found he was arrested about the 26th of February, and then and there feipfum refcuffit. And it was objected in arreft of judgment, that they alledge that they were chargeable with the debt, but fay not they were charged, nor fhew not they were otherwise damnified, they have no cause of action; for it may be, the party will never fue them, or they may die before fuit, and then the fuit is gone: but the court held that the action well laid by the fheriffs upon this efcape, before the party fue them; for the party arrefted did wrong to them, by the efcape and refcous, and they are always chargeable to the other party; and if they ftay till they are fued, perhaps the party that escaped may die in the interim, or will fly the country, that they cannot hear of him; and the party fhall not take advantage of his own tort in rescuing himself,

And Barkley and Gibbs verfus Kempflow, Cro. Eliz. 123. in affumpfit. The plaintiffs being bailiffs of the city of Worcester, had arrefted one for debt, and committed him prifoner to the defendant to keep; and the defendant promifed to keep him fafely, and fave the plaintiffs harmlefs of all efcapes; but fuffered him to efcape, by which they were damnified; upon non affumpfit it was found for the plaintiffs: and it was objected in arreft of judgment, that it was not alledged how they were damnified, viz. that they were fued for this efcape, or other. wife molefted. Sed non allocatur, for immediately upon the escape they were damnified, and in danger to be fued, and might fue the defendant prefently, and not tarry till they were fued.

So that a cause of action accrued in the cafe at bar, by the defendant's not appearing at the return of the writ, by which the plaintiff became chargeable upon his bail-bond. But 2dly, The putting the plaintiff's bail-bond in fuit was an actual damage, and a fortiori, when judgment was recovered against him; for, the moment when judgment was obtained, the debt was afcer. tained, and the damage to the plaintiff was inevitable.

In the cafe of Chilton verfus Whiffin and Cromwell, the bankruptcy of defendants was in Auguft 1766, and Chilton was not arrelled upon the bills he had accepted till September after.

wards,

wards, fo that the final judgment, in that cafe, was after the act of bankruptcy; but in the cafe now before the court, the final judgment was obtained in Michaelmas term 1763, before the act of bankruptcy in March 1764, fo that Goddard might have claimed under the commiffion to the amount of the debt and cofts, though the affignees might have fufpended paying him his dividend until he fhould have actually paid the debt and cofts upon the judgment; but inftead of making his claim he proceeded in error in the Exchequer Chamber, where the judgment was affirmed in Trinity term 1764; fo that the bankruptcy intervened between the time of the judgment and the affirmance thereof; and the cafe of Chilton and Whiffin, and Cromwell, is different from this.

Leigh Serjeant-The debt did not accrue to Goddard until he actually paid the money in January 1765, when a fieri facias iffued against his goods; and then, and not before, it became a debt owing to him from the defendant: fo in the cafe of Chilton verfus Whiffin and Cromwell, the charging Chilton in execution, (which the court. confidered the fame as payment of the debt and cofts) created the debt from Whiffin and Cromwell, then, and not before, owing to Chilton; and as to the cafes cited from Hob. 267. and Cro. Eliz. 53, 123. they are not (with great deference to my brother Davy) like the prefent cafe at bar. So I pray judg ment for the plaintiff.

The court gave no opinion in Trinity term laft, but ordered the cafe to ftand: over for further argument, until this term; after having thrown out a few hints, touching the matter in debate, to the following effect, viz.

The question before the court is new; it depends upon the ftat. 4 & 5 Ann. ch. 17. and flat. 5 Ann. ch. 13. whereby per-. fons becoming bankrupt, conforming to the bankrupt laws, and obtaining their certificates, are difcharged from all debts, by them due and owing at the time they did become bankrupt; and in cafe any fuch bankrupt fhall be profecuted or impleaded for any debt before fuch time as he fhe or they became bankrupt, fuch bankrupt may plead in general, as the now defendant has pleaded in this cafe.

The cafe has been ably argued at the bar; it feems both just and reasonable that every fair and bona fide creditor of a bankrupt, who cannot be permitted to come in and prove his debt under the commiffion, ought not to be barred from having his action against the bankrupt for fuch debt as was not due and owing at the time of the aft of bankruptcy committed, and fo could