1834. METCALF v. WATLING. is not exactly in point, because those were the defendant's costs; and whatever is the nature of the action, whether tort or debt, it is held, that no debt exists until the costs are taxed. The nearest case is that of Ex parte Poucher (a), where it was decided, that in an action upon contract, where the verdict is before and the judgment after the bankruptcy, the costs are proveable. In that case, however, there was not the ingredient of the costs being those between attorney and client. The Court there held, that the certificate discharged the bankrupt from those costs. Now, this cognovit is either an agreement to pay a certain sum, or to pay what shall be found due on taxation. If it be to secure a sum certain, it is clear that it was proveable, and, if it be to secure what should be found due on taxation, it was also proveable, because the amount might be ascertained, and the cognovit was given before the fiat issued. Therefore, quacunque via, the certificate is sufficient to discharge him. The present rule must, therefore, be made absolute. (a) 1 Glynn & Jam. 385. Rule absolute. Where the at testing witness attorney is the clerk of the attorney preparing it, the want of his affidavit, YOUNG v. SHOWLER. J. HENDERSON moved to enter up judgment on an to a warrant of old warrant of attorney. The difficulty in the case is, that the affidavit of the attesting witness cannot be obtained. He was the clerk of the attorney by whom the warrant was prepared, and has since absconded from his master's service. The affidavit, therefore, on which he moved, was that of the attorney himself, which verified the hand on signing judg ment, is suffi ciently supplied by that of his master verifying the handwriting of his clerk and of the defendant, and stating that the former has absconded and cannot be found. writing of the defendant and of the attesting witness, and accounts for the absence of his clerk, by shewing that he has absconded; that he has not seen him since he left his service; that he has made diligent search for him, but has been unable to find him. He does not, however, state the nature of the search he has made (a). But the office of his late master, where he spent the principal part of his time, is the proper place for inquiring after him; and an affidavit, shewing that endeavours had been made to find or hear of him there, would have satisfied the rule. If so, this affidavit of the master himself is sufficient. PATTESON, J.-I think this is sufficient under the circumstances; and, therefore, you may take your rule. Rule granted. (a) Waring v. Bowles, 4 Taunt. 132; Jones v. Knight, 1 Chit. Rep. 743. 1834. YOUNG บ. SHOWLER. MULLINS v. BISHOP. C. AUSTIN moved for a rule nisi for judgment as in case of a nonsuit, or such other rule as the Court should think the defendant entitled to obtain. Issue was joined on the 28th April. Notice of trial was given on the 29th for the Sittings after Easter Term. On the 29th, an order was obtained from a Judge under the 3 & 4 Will. 4, c. 42, s. 17, for the trial of the issue before the sheriff of Middlesex. Since the order had been obtained, no notice of trial had been given, or any further steps taken. It appeared by affidavit, on which he moved, that the usual days on which trials took place at the sheriff's office were Tuesdays and Thursdays in every week. The present application, therefore, was, that the defendant might obtain a rule for judg 1834. MULLINS v. BISHOP. ment as in case of a nonsuit, or such relief as the Court could grant. PATTESON, J.-You may take a rule nisi, calling on the plaintiff to shew cause why he should not take further proceedings for the trial of the cause within a fortnight; or why judgment as in case of a nonsuit should not be signed. Rule nisi accordingly. THE rule was afterwards made absolute for judgment as in case of a nonsuit. The matter was mentioned to the Court, but no cause was shewn. a replevin-bond are only liable for the value of amount of rent only be liable for the rent. HUNT v. ROUND and Another. The sureties in R. V. RICHARDS shewed cause against a rule obtained by Tomlinson, calling on the plaintiff to shew cause why, on the payment of 2607., and 150l. for costs, and the costs of the application, the proceedings in this case, which was an action on a replevin-bond, should not be stayed. The affidavit on which the rule had been obtained due, they will stated, that, in the year 1832, the plaintiff distrained on the goods of a person named Whitehouse for 3901. A replevin-bond was given, in which the defendants were sureties, and the goods valued at 260l. An action was brought on this bond, and the defendants were desirous of staying proceedings on it. The double costs of the defendants were taxed at 150%. The question is, whether the bond which the defendants had given was to render them liable for the amount of the goods distrained (2607.), and double costs (1507.), or to the amount of the rent owing (3907.), as well as the double costs? I contend that the plaintiff is entitled to have the amount of the rent in arrear, and the double costs. In the case of Evans v. Brander and Another (a), which was an action on the case against the sheriff for taking insufficient pledges in replevin, the Court held him to be liable in damages to the extent of double the value of the goods distrained, though no further. Here, it is not sought to compel the payment of more than the amount of the rent due, although, if it were equal to, or exceeded the double value of, the goods distrained, proceedings could not be stayed, except on payment of the full amount of the sum secured by the bond, as well as the double costs. Again, in the case of Baker v. Garratt and Venables (b), which was a similar action to the last, it was held that the assignee of the replevin-bond cannot recover as special damage (beyond the penalty of the replevin-bond), the expenses of a fruitless action against the pledges, unless he gives the sheriff notice of his intention to sue them. In the case of Porter and Others v. Henry Hoste and Others (c), it was held that the liability of sureties in a replevin-bond is limited to the amount in arrear at the time of the distress, and costs. These authorities shew to what extent the sureties must be considered as liable. The only case, which appears to be in opposition to these decisions, is that of Scott v. Waithman and Another (d), which was an action against the sheriff for taking insufficient sureties in replevin; and Lord Tenterden observed in his direction to the jury, that, "as the verdict in the replevin suit was merely for a return of the goods, the jury could not, in their verdict, exceed the value of the goods." That, however, was merely a Nisi Prius decision, standing alone, and could not be considered sufficient to overrule the other decisions already cited. Tomlinson, in support of the rule.-The defendants here 1834. HUNT ย. ROUND. 1834. HUNT บ. ROUND. seek to stay proceedings, by paying the value of the goods distrained, and the double costs. If the plaintiff in the replevin suit had proceeded and failed, the landlord could only have recovered the value of the goods distrained, or the goods themselves, and the double amount of costs which might at that time have been incurred. We offer, therefore, on staying proceedings, all which he could be entitled to receive by proceeding. That which is the measure of liability in an action against the sheriff must be the measure in an action against the sureties. And Lord Tenterden, in the case of Scott v. Waithman and Another, was of opinion, that the measure would be the value of the goods distrained. The case of Austin v. Howard (a), though not exactly in point, may be considered as supporting the same principle. There, the sheriff took a replevin-bond from one surety only, and the person making cognizance sued him for taking insufficient pledges, and recovered as damages the amount of the rent only, which was less than the value of the goods and costs in the action. The sheriff sued the surety on his bond, and assigned breaches under the 8 & 9 Will. 3, c. 11. The Court held, that he was only entitled to recover against the single surety, and was deprived of calling on his co-surety to contribute a moiety of damages awarded by the jury in the action against the sheriff. This case shews that the measure of damages against the surety, as well as against the sheriff, is the amount which the defendant in replevin could recover by proceeding within the penalty of the bond. PATTESON, J.-In the case of Porter and Others v. Henry Hoste and Others, the value of the goods seized exceeded the amount of rent due; therefore, it is not in point in this case. Cur, adv. vult. (a) 7 Taunt. 327, and 1 J. B. Moore, 68, S. C., in which the sums are more clearly distinguished. |