
    Warne against Constant.
    On. an action, brought by A.{ against U. the plaintiff was nonsuited at the trial in June, 1807. A case was made for argument, on a motion to set aside the non-suit, which was argued in vVdvember term, 1808. and decided in favour of the plaintiff, iu February term, 1809. On the 20th of Jvíarch0 1809, A. the plaintiff, obtained his discharge under the insolvent act. It was held, that the plaintiff was no? liable for nthc costs, on tiie judgment of nonsuit. Where a judgment is obtained before an insolvents of the hiiolvvn:. ¿llscharge, the easts, though aottMcd, or the roll signed, c^aiioi be recovered
    THE facts in this case were as follows :
    The plaintiff commenced an action of assault and battery and false imprisonment, against the defendant, in 1805. The cause came on to trial, in June, 1807, when the plaintiff, by the direction of the judge, was nonsuited. A case was prepared on the part of the plaintiff, and argued in November term, 1808, and a judgment in favour of the defendant, was rendered in Februanj term, 1809. Previous to the judgment, viz. the 16th of January, 1809, the plaintiff presented his petition, under the insolvent act of this state, to the recorder of the city of Nezv-Tork ; and on the 20th day of March, 1809, was by him discharged, conformably to the act. The assignment was also made on the 20th of March, 1809.
    The case was submitted to the court, without argument.
   Per Curiam.

The judgment against the defendant, rendered in February term last, must have been for costs only ; and if they were taxed before the assignment of. the insolvent’s estate, on the 20th of March, (and we must presume from the case that they were,) they were no longer, in any sense, unliquidated damages, and the discharge covers them. But whether this be the fact or not, as to the taxation, the case of Thomas v. Striker, January term, 1802, seems to put an end to the question. It was there held, that if a judgment be obtained before the insolvent’s assignment and discharge, the costs of that judgment cannot be recovered of the insolvent. The costs were considered as being inchoate with the judgment. The defendant is therefore not liable to be taken in execution under the judgment.

Janes> contra.

Per Curiam.

It is enough if the debt was liquidated, or capable of being li - quidated, before the discharge. Here the judgment was in October term, and the costs capable of liquidation, at that time ; and we must intend, that the assignment was contemporaneous with the discharge.

Motion granted. 
      
       That case was as follows: Whiting moved to set aside a fieri facias, on an affidavit, stating that or the 7th of November, 1808, the defendant was duly discharged under the insolvent act. It appeared, that a judgment of nonpros, had been given on a certiorari, from the judgment of a justice’s court, prior to the 7th November, 1808 ; and that the only question was, whether the plaintiff was entitled to a,fieri facias, for the costs, arising on the judgment of nonpros, entered at the last October term.
     