949, 1043, 1160, 1196.

not be proved under the commiffion. If A. has a bond of in. demnity from B. and the condition be broken, and afterwards B. becomes bankrupt before A. has been fued or damnified; though A. had a good caufe of action against B. before the act of bankruptcy, yet, as A. had not been damnified by paying any certain fum of money by reason of B.'s breach of the condition, A. cannot poffibly fwear to any debt due and owing from B. at the time of the act of bankruptcy. Suppofe a leffee ploughs up meadow ground, for which he is bound to pay the leffor a certain fum of money as a penalty, can that penalty be proved as a debt under a 3 Stra. 867, commiffion of bankrupt? It certainly cannot. Or fuppofe a man be bound in an obligation in a certain fum to perform covenants, and the obligor before he becomes a bankrupt breaks those covenants, can the obligee prove this as a debt under the commiffion? Clearly he cannot. In ejectment, there was a verdict at the fummer affizes for the plaintiff, and nominal damages; afterwards in that vacation the defendant became bankrupt, and in Michaelmas term following the plaintiff figned a final judg ment, and had cofts de incremento then taxed and allowed to him; Lord Henley in a cafe ex parte Todd, held, these cofts did not become a debt till the judgment, and were connected therewith, and that the plaintiff could not be permitted to prove the fame, as a debt under the commiffion. Debts payable upon a contingency, which may poffibly never happen, cannot be proved under a commiffion of bankrupt; but by the ftat. 7. Geo. 1. ch. 31. perfons who have given credit for goods fold, and taken bills, bonds, &c. payable at future days, and the buyers become bankrupts before the monies become due, the perfons fo giving credit fhall be intitled to a proportionable share of fuch bankrupt's eftate, deducting a rebate of intereft and dif-, counting fuch fecurities at 5. per cent. per annum; and bankrupts fhall be discharged from fuch bonds, &c. Whoever therefore will come in under a commiffion of bankrupt, must swear to a debt due and payable at or before the act of bankruptcy; or due then, and payable upon bills, bonds, &c. at a certain time afterwards which will certainly come to país, but one having only a cause of action cannot come in and prove it as a debt. It was also faid that one having a judgment for damages and cofts in an action of affault and battery, figned and entered against one who afterwards becomes a bankrupt, cannot come in and prove it as a debt under the commiffion. Walter verfus Sherlock. Hil. 23 Geo. 2.

a Williams, 497. 1 At

kins 119.

This cafe was argued again at the bar this term, by Serjeant Glynn for the plaintiff, and Serjeant Burland for the defendant, much to the fame purpose as the argument at bar in the laft term. The court took a week's time to confider, and gave judgment for the plaintiff.

Curia. The queftion is, Whether the plaintiff is intitled to judgment upon the verdict? Or, in other words, Whether the debt for which this action is brought, could have been proved under the commiffion of bankrupt? And we are all of opinion that it could not; for that the plaintiff Goddard could not swear that this debt was due and owing to him before he actually paid the debt and cofts upon the judgment upon the bail-bond in January 1765, which was ten months after the act of bankruptcy.

The bankrupt acts do not fay what kind of debts fhall come under the commiffion, the ftat. 4 & 5 Ann. c. 17. fay perfons becoming bankrupts and conforming, &c. fhall be discharged from all debts due and owing at the time of the bankruptcy, and if fued for any fuch debt, may plead in general, that the 'caufe of action, accrued before such time as he became bankrupt; we think that the words caufe of action, mean fuch a debt as is due and owing, and payable in all events; the creditor must fwear to the fum due, and if he fwears to more than is due he will be guilty of perjury. A debt may be due at the time of the bankruptcy, though not demandable till fome time afterwards, and therefore the ftat. 7 Geo. 1. c. 31. was made to let in fuch debts to be proved under the commiffion; and though the preamble of that ftatute speaks only of bonds, &c. given for goods in trade, yet the enacting words extend to all forts of bonds for payment of money, and that the words fuch fecurity, do not mean fecurity for fuch a fort of debt, but fecurity by bonds, bills, notes, &c. Swaine verfus De Mattos, at Guildhall, per Lee Ch. Juft. Trin. 17 Geo. 2. Upon the opinion of the court of B. R. in Tully verfus Sparkes. 2 Stra. 867, 868. touching debts payable upon contingencies which may never happen, the parliament interpofed, and made the ftat. 19 Geo. 2. and extended the bankrupt laws to refpondentia bonds, &c. and fee 2 Williams 497. the cafe ex parte Cafwell and others. There was a case ex parte Mitchell 23d December 1751. A trader on his marriage gives a bond to a trustee, to fecure a fum of money to his wife, becomes a bankrupt and pays 9s. in the pound; the wife pe- 2 Vern. 662. titioned to come in as a creditor, on the principle of the ftat. 7 Geo. no body oppofed her; Lord Hardwicke doubted and had 22d Jan. it spoke to again, and then thought it improper; but at laft by 1759, before the confent of the affignee the wife was allowed to come in; but thington, cafe it is now fettled, that upon fuch a provision for a wife fhe cannot of a wife. be admitted a creditor. In case of debts uncertain in point of liquidation, as between two merchants in balancing accounts, then the matter refts upon a claim, to ascertain the fum that was due at the time of the bankruptcy.

Lord Nor

In trefpafs, prefcribes for

defendant

a way over the clofe in

quo, in his

for the de

fendant.

In affault and battery before bankruptcy; during the bankruptcy plaintiff has a verdict with damages, but had not judg ment till after the certificate. Court of opinion the plaintiff could not come in under the commiffion, that it was not a proveable debt, or a debt due at the time of the bankruptcy. Walter and Sherlock. Hil. 23 Geo. 2.

This is an action of the cafe, upon a verbal promife, founding wholly in damages, at the time of the bankruptcy the plaintiff Goddard had fuftained no damage, it was then wholly uncertain whether he would fuffer any damage; one cannot fay what certain debt he could fwear to; he brings a writ of error upon the judgment recovered against him on the bail-bond, and thereby would induce the court of Exchequer Chamber to believe that the judgment was erroneous, and that he owed nothing thereupon; how then can he go at the fame time before the com miffioners, and fwear the defendant owed him fo much money on that account, when he had not paid a farthing of it? The plaintiff could not have fworn to a debt in this cafe, fo as to have held Vanderheyden to fpecial bail; they faid they did not rely on the cafe of Chilton verfus Whiffin. Upon the whole, the court was of opinion that judgment must be for the plaintiff, and the poftea was accordingly ordered to be delivered to him, per totam curiam.

Sampfon verfus Appleyard. C. B.

TRESPASS, quare claufum fregit. The defendant pleaded ft, Not guilty. 2dly, He prefcribed for a certain way, (leading from a certain common highway in Birkin) into, through and over the plaintiff's clofes in which, &c. the plaintiff by his which, &c. replication traverfed the prefcription, whereupon iffue was and mistakes joined. At the trial of this caufe, the council for the dethe terminus a fendant, having admitted the trefpafs, called ten witneffes, who plea; verdict clearly proved the defendant's right of way. But it appeared upon the evidence, that this way did not lead from a common highway, but did lead from a certain private way in Birkin; whereupon it was objected at the trial, that the defendant had not proved his prefcription to the way, it being laid in his plea that the terminus a quo was from a common highway, whereas the proof was, that it was from a private way; but the right to the way over the plaintiff's clofes in which, &c. being clearly proved, Mr. Juftice Gould, before whom the caufe was tried, left it to the jury (nine of which jury having had a view) who found a verdict for the defendant for his right of way.

The court refufed to grant a new trial,

the merits having been tried.

And

And now Serjeant Leigh for the plaintiff moved for a new trial, objecting that the defendant had failed in proving the prefcription as laid in his plea; that the termini a quo, and ad quem over what land ought to be laid, and proved with the utmost certainty, that here the terminus a quo, was laid to be a common highway, but was proved to be a private way; and he cited Lit. Rep. 295.

Serjeant Burland for the defendant-The merits of this cafe have been tried, and the courts do not grant new trials for any little flip in pleadings where they fee that the merits have been tried; but I fubmit it to the court, that the terminus a quo, is Palmer 420. not a material part of the prefcription; the defendant is called upon in this action to fhew his right of way over the place in which, &c. he pleads that he has that right by prefcription, the material part of which prescription is confined to the locus in quo; the plaintiff could not have replied that the terminus a quo was from a private way, abfque hoc that it was from a common highway, because the merits could not have been tried upon an iffue taken on that traverfe.

Lord Chief Juftice De Grey-This is a motion for a new trial, because the defendant in his plea has miftaken one abuttal of the way; if a new trial was to be granted, the defendant would amend his plea according to the evidence, and would have another verdict, in all human probability, having given fuch clear proof of his right by many witnesses.

Upon this record, it is certain that the defendant was bound to prove his right of way as it is pleaded; he has proved it to a common intent; the terminus a quo is pleaded to be a common highway, (it is not defcribed to be the King's highway) and a common highway may be a private way in common fense and understanding; however, the merits have been tried, and therefore a new trial ought not to be granted.

Nares Juftice-I am of the fame opinion; and the court never grants a new trial when they clearly fee the merits have been fairly and fully tried.

Gould Juftice-I am of the fame opinion; and that in pleading a right of way you need not defcribe the terminus a quo, becaufe the plaintiff may reply extra viam, which will be a matter for evidence.

New trial refufed per totam curiam.

Vol. III.

T

Roe

of an heir by

d-mife was

laid on the day his anceftor died,

Roe, on the demife of Wrangham, verfus Herfey.
C. B.

In ejectment EJECTMENT. The leffor of the plaintiff claimed by defcent from his ancestor, who died on the 1ft day of defcent, the January 1771, at five o'clock in the morning; the demife was laid in the declaration on the fame ift of January to hold from the 31 day of December then laft paft. After the merits- had been gone into at the trial of the caufe before Mr. Juftice Gould, it was objected that the leffor of the plaintiff had no title at the time of the demife, which appears to be made when his anceftor was living, for he did not die until five o'clock on the ift of January, fo was alive that day; but the leffor having clearly made out and proved his title, the judge directed the jury to find a verdict for the plaintiff, which they did accordingly.

and held well enough after

a verdict.

Fiction of law

no man, but aid much it may.

See Butler

and Baker's cafe, 3 Rep.

And now it was moved to set aside the verdict, because the ancestor from whom the leffor of the plaintiff claimed by defcent was living on the 1ft of January 1771, till five o'clock in the morning, and there is no fraction in a day, so that, in fiction of law, he was alive all that day, and the leffor of the plaintiff's title did not accrue until the beginning of the next day the 2d of January.

But per totam curiam. If my ancestor die at five o'clock in the morning, I enter at fix, and make a lease at feven o'clock, Lit is a good leafe.

It is faid there is no fraction in a day, but this is a fiction in law, ought to hurt fictio juris neminem lædere debet, but aid much it may, and this is feen in all matters where the law operates by relation, and divifion of an inftant, which are fictions in law. A conftable takes one who had ftruck another, and then fets him at liberty, the party ftricken dies of the ftroke; this is felony ab initio, but not to the prejudice of the conftable who fuffered his escape. 11 Hen. 4. 12 b. pl. 26. A fine is levied fur render, the conufee by fiction in law hath feifin in an inftant to make this render back, but to no other purpofe to the prejudice of the conufor, for the conufee's wife fhall not have dower, nor fhall the land be fubject to any ftatute, &c. in which the confuee was bound. See 2 Rep. Ld. Cromwell's Cafe.- -If a man were born the 1ft of February and lived to the 31ft of January 21 years after, and at five o'clock in the morning of that day makes his will, and dies by fix at night, that will is good, and the devifor is of age, 2 Ld. Raym. 1096. In an action on the cafe for difturbance of his common, an ex

25.

ception