The opinion of the Court was by
YvThitman C. J.This is an action of debt on a judgment, recovered for a bill of costs, in an action, in which the present defendants were plaintiffs, against the present plaintiff, as sheriff of the county of Penobscot, for a default alleged to have been committed by one of his deputies; and in which they were unsuccessful. After the commencement of that action, and before its termination, the present defendant, Warren, became a bankrupt, in pursuance of the statute of the U. S. of 1841; and now contends that, by reason thereof, ho is not now liable in this action. It does not appear that he, or the other defendant, when the nonsuit was ordered, interposed any objection to the entering up of judgment for the costs of the adverse party. Under such circumstances it would seem to be scarcely necessary to do more than to state the defendant, Warren’s, proposition, in order to have its fallacy instantly detected. He has, however, cited a number of authorities, in reference to judgments for costs, recovered against bankrupts, *440in actions instituted before they became such, in which rules of Court have been obtained for discharging them from arrest on execution. But in most of the decided cases the recoveries of judgment had been for debts and costs, in which the debts had been proveable before the commissioners. In such cases it was obviously reasonable, that the costs should be held to be no good ground to authorize an arrest of the bankrupts. In the other cases cited, the right to judgment for costs had accrued, though not in each case entered up, before bankruptcy ; so that the right to prove them, under the commission, had been perfected; and the dicta cited from the elementary authorities are predicated upon those decisions, and can have no effect beyond their import.
In the case at bar, the nonsuit was not entered till after the bankruptcy of Mr. Warren ; and the present plaintiff of course had no debt due to him from the defendants upon the happening of that event, and, therefore, had none that could be proved before the commissioners; and this seems in the English , courts to constitute the criterion to settle the question, whether a bankrupt should be discharged from an arrest on execution or not. It is believed that no case can be found in which a - bankrupt has continued his suit in court, after his bankruptcy, and has finally been nonsuited upon its being discovered that he had no just cause of action against his adversary, in which the court has undertaken to liberate him from liability to his adversary for his costs of suit.
Besides ; if Mr. Warren hada right to claim an exemption from the payment of costs, the time for him to have done so was when the final decision was had. Not then having , done so the judgment may well be deemed to have been properly entered up; and cannot now be treated as null and void.
Defendants defaulted.