said that the question was premature, until evidence of malice should be offered, when it might come properly before *188the Court on an objection to the evidence. But the Court permitted the plaintiff to give evidence of fatigue, trouble, vexation and expenses occasioned by the attempt to prove him a bankrupt. And afterwards permitted the plaintiff to go into evidence of malice in aggravation of damages.

The Court also permitted the defendant to give evidence of the circumstances and conduct of John Sutton, which would have amounted to acts of bankruptcy, if he had been a proper subject of the bankrupt law, in mitigation of damages and to repel' the suggestion of malice. But refused to admit evidence that the commissioners of bankruptcy had erred in their judgment.