In the matter of Coates and Hilliard, &c. the trustees in the attachment proceeding were appointed, and on the 2d of December, 1848, the petitioners presented their claim to the trustees. The petitioners show that they were creditors at the time of the issuing of the attachment; that they have proved their debt in the bankruptcy proceedings, and have received a dividend. Upon these facts, the question is presented, whether these petitioners are not precluded from claiming as creditors under the attachment. That they were creditors when the attachment was issued is clear. The language of the section in respect to distribution is, that it is to be made among those who were creditors at the time of issuing the attachment. (2 R. S. p. 47, § 33, sub. 1.) But this does not determine the question. It means to exclude those who become creditors afterwards, not to affirm that all those who were then creditors should receive dividends irrespective of the question whether they continued to be creditors or not. If this be not the construction, then even payment would not prevent the paid creditor from sharing in the fund. The language confirms the decision upon the old act in the matter of Depuyster, (5 Cow. 266,) where the point was raised whether one who had become a creditor after the issuing of the attachment could share in the fund. In Peck agt. Randall's trustees, (1 Johns. 165,) the supreme court held, that the statute of limitations was a good bar to the claim of a creditor, which was not barred at the time of the issuing of the attachment, saying, that the trustees succeed to the rights of their principal, and consequently to his means of defence. The question is then, I think, narrowed to this, whether the debt of Coates and Hilliard to their petitioners was extinguished by the discharge in bankruptcy. Debtors and creditors were all subjects of Great Britain, and domiciled in England; the debt was English in its origin, and the creditors have received their dividend under the English bankruptcy. Under such circumstances, I am not aware that it has ever been denied, that a discharge of the debt was valid, and to be respected in all other countries. (Story Con. Laws, §§ 337, 338.) Barber and others agt. Case. No question is presented as to the effect of the foreign law upon property here, but simply whether the debt is extinguished between the parties. It follows, that the petitioners were not entitled to participate in the fund in the hands of the trustees, and that the order of the general term should be reversed, and that of the special term affirmed. SUPREME COURT. BARBER and others agt. CASE. Where a question of fact-(amount due from attorney to client, of moneys collected) has been, by an order of the court, sent to a referee to pass upon, and on a motion for an amendment of the order, it appears that there are contradictory statements and suspicious circumstances attending the case, the court will direct that the parties and their witnesses be examined openly on oath before the court. New-York Special Term, 1855. ROOSEVELT, Justice. This, originally, was an application by the plaintiffs against their attorney, for an attachment to compel him to pay over moneys collected by him on the judgment in this cause. Although the judgment was entered for $228.77, including $8.75 for costs, "it became" (such is the attorney's statement) "settled by compromise," for the sum of $200-of which amount, he says, one Gibson, the plaintiffs' agent, "on the same day," (giving no date,) received $130, leaving a balance of $70, which he, the attorney, claims to retain for "other professional business," including "lengthy papers," and sundry "supplementary proceedings, in which many days was lost." The judgment, it appears, was obtained on the 1st of June, and the satisfaction piece (signed by the attorney) on the 2d of Barber and others agt. Case. July, 1852. And yet the attorney, as the plaintiffs allege, and he does not deny, long afterwards, informed them that an execution had been issued and returned unsatisfied, and that there was but "little hope of recovering anything, and that he had re-. ceived nothing." He pretends, I am aware, that Barber, one of the plaintiffs, "shortly after the claim was settled," giving no date, "called at his office and was informed of the arrangement, and made no objection." But how can such an averment be reconciled with the admissions referred to, or with the letter sent by him more than two years subsequently, in which he said he had "delayed writing until he had secured their claim," and in which he informed them that it was "to be paid on the 20th day of September next "-that is, September, 1854? Under these circumstances, instead of passing on the case definitively, the court sent it to a referee, to ascertain the amount due; and made a further order, that on filing his report, unless payment was made, an attachment issue against the attorney as for a contempt. He now applies to have the order "amended or settled, so as to comply with the facts or merits herein." No alteration, it appears to me, is necessary, unless it be (as was done in the case of Meyer agt. Lent, 16 Barb. 538,) to direct the attendance of the attorney and his clients to be examined openly, on oath, before the court itself, with such witnesses, especially Gibson, as they may see fit to produce, to throw light on the seeming contradictions in which the written affidavits appear to be involved. Let an order to that effect be entered, with $10 costs of opposing the motion, to abide the event. Parkhill agt. Hillman and others, Administrators, &c. SUPREME COURT. CALVIN D. PARKHILL agt. JOSEPH N. HILLMAN and others, Administrators of W. S. PARKHILL, deceased. In an action in the supreme court, where a motion for costs against executors or administrators is made at a term of the court not held by the same judge before whom the trial was had, the certificate of the judge before whom the trial was had must be presented, showing what facts bearing on the question of costs appeared on the trial. Whether, where the motion for costs is made at a term held by the same judge who presided on the trial, any certificate is necessary. Quere? Otsego Special Term, March, 1856. THIS action was tried at a circuit court held by Mr. Justice GRAY, when the plaintiff obtained a verdict for $208, which was the full amount claimed by the plaintiff, of the estate represented by the defendants. The plaintiff, upon the pleadings and on affidavits, now moves for costs against the defendants, on the ground that payment of the claim on which the money was had was "unreasonably resisted or neglected" by the defendants. The defendants object to the court entertaining the motion, on the ground that no certificate of Mr. Justice GRAY has been obtained in reference to the facts that appeared on the trial. The plaintiff insists that his claim for costs rests on facts that did not appear on the trial, and that, as the supreme court is now organized, no certificate is necessary on a motion for costs against executors or administrators. JAS. E. DEWEY, for plaintiff. BALCOM, Justice. It is provided by statute, that no costs can be recovered in actions against executors or administrators, unless it appear that the demand on which the action was founded was presented within a specified time, and that its payment was unreasonably resisted or neglected, or that the VOL. XII. 23 Parkhill agt. Hillman and others, Administrators, &c. defendant refused to refer the same; in which cases the court may direct such costs to be levied of the property of the defendants, or of the deceased, as shall be just, having reference to the facts that appeared on the trial. "If the action be brought in the supreme court, such facts shall be certified by the judge before whom the trial shall have been had." (2 R. S., p. 90, § 41.) This statute was enacted under the constitution of 1821, when the circuit judges took no part in the decision of causes at either the general or special terms of the supreme court. The object of the certificate was to inform the supreme court on the motion for costs what facts appeared on the trial: for the court determined the question of costs with reference to the facts that appeared on the trial." (Gansevoort agt. Nelson, 6 Hill, 393.) This statute is expressly made applicable to questions of costs under the Code in actions against executors and administrators. (§ 317 of the Code.) The certificate of the judge who presided on the trial was deemed the best evidence, under the old circuit system, of the facts that appeared on the trial; and neither the constitution of 1846, nor the Code, nor any other statute, has changed the rule, or rendered the certificate of the judge before whom the trial was had unnecessary, when the motion for costs is made at a term held by a judge who did not preside on the trial. The court must now, as before the constitution of 1846, in granting or refusing costs, "have reference to the facts that appeared on the trial." And such facts must still be certified by the judge before whom the trial is had. (2 R. S. 90, § 41.) There would, probably, be no necessity for a certificate, if the judge before whom the trial is had holds the court where the motion for costs is made-unless it be to inform the defendant in advance what facts, bearing upon the question of costs, the judge deems established at the trial. So he could avoid its effect by proof of other facts-as the certificate is not conclusive as to costs. (6 Hill, 389.) But it is not necessary to decide that question on this motion. The conclusion to which I have arrived is, that I cannot |