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for the sale of an annuity of £20, to be paid to the plaintiff during the joint and several lives of himself and wife, and during the life of the survivor for £150, and that Mather had requested defendant to join in and execute the bond (which defendant had consented to do) for securing the payment of the annuity, and that Mather had received the £150. The condition was for the payment by Mather or defendant of the annuity by two equal half-yearly payments on the 9th of December and the 9th of June in each year. The breach suggested was non-payment of two-and-a-half years' annuity. Defendant became bankrupt in 1836. The annuity was paid by Mather half-yearly down to 1848, but never on the days specified in the condition, so that there had been breaches before defendant's bankruptcy. Held, (Wightman, J., dissenting), that defendant executed the bond as surety, and that plaintiff could not, on the bankruptcy of defendant, have proved for the value of the annuity or the penalty of the bond. Erle, J., in giving his judgment in the case, observes, "Whatever might be the effect of the present form of bond in respect of pleading:-in bankruptcy, where the true substance is ascertained without pleading, the present case creates the same liability as the form in Thompson's case. If the grantor pays, the surety is free; if he makes default, the surety is liable."

It seems to me clearly to be deduced from the authorities on the subject that in England the plaintiff would not have been permitted to prove against the defendant's estate for anything more than such of the notes as became due previous to the bankruptcy, and he could only prove as to the notes due since that, if at all, under the clause of the statute above quoted, as a debt payable on a contingency. If the conclusions I have thus far arrived at be correct, then I think we should consider the case with a view to the proof as a debt payable on a contingency, in the same manner as if the bond had not been forfeited, or as if there had been a separate bond for each note, similar in all respects as to condition, recitals, &c., to the one set out in the declaration. Then comes the question, did the defendant, when he signed the bond, contract a debt with the plaintiff payable on a contingency, within the meaning of the bankrupt laws as they

are administered, or merely a contingent liability, which might ripen into a debt?

In Exparte Marshall, in the matter of Fox, Nov. 30, 1833, M. & A., Mr. Commissioner Merrivale, at page 122, states, "that in order to establish a proof under the 56th section (of 6 Geo. IV. ch. 16) there must be a debt contracted and actually existing at the time of the bankruptcy." He repeats the same language at page 12. At page 127 he further remarks, "It seems that this question of debts payable on a contingency has been sometimes argued on the ground that it was the professed design of the legislature to exonerate the bankrupt's estate from every species of future liability, by proving for its discharge under the commission, and the 56th section has accordingly been represented as introduced to meet every case of that description, untouched by the 4th or 5th preceding clauses; that is, the 51st, relating to debts payable at a future time, and on an event certain, the 52nd, relating to sureties, the 53rd relating to bottomry and respondentia bonds, &c., and the 54th and 55th, to creditors by way of annuity and their sureties; but I am of opinion that it is impossible to collect any such meaning either from the language of the act itself or from the nature of the evil, which had been previously pointed out by those most conversant with the principles and practice of the bankrupt laws as calling for a remedy. That evil consisted in the hardship on many meritorious individuals having an interest in the bankrupt's estate to an amount certain, although dependant on an event in its nature uncertain,-as, for instance, that of survivorship-in being absolutely precluded from sharing with other creditors by the circumstance of the event not being determined at the time of the bankruptcy. And the particular class of creditors who were more especially marked as objects of the proposed remedy was that which has been always regarded as entitled to peculiar protection—viz., married women, infants, and other persons having an interest under wills or by marriage articles, whose situation was often rendered most deplorable by accidents against which no human foresight could have provided. This, as appears from the language of all the books on the subject of the bankrupt

laws, was the object which the legislature had most immediately in view in the introduction of the clause in question. It never was the design that the clause should be extended by a fancied liberality of construction to a variety of cases not within its literal scope and meaning; and the very preciseness of its words and phrases expressly negatives such an inference. It is further negatived by the consideration of the far greater evils which would ensue from the admission of the required construction, and its extension to cases of remote and indefinite liabilities. Mr. Commissioner Fonblanque argues to the same effect; and, considering that the authorities established that the uncertainty of the amount of a demand is a sufficient objection to proof, adds at page 132, a fortiori must it be an objection that it is uncertain whether any debt whatever will be demandable. * * * But it is said, the event having happened, a value can now be ascertained-that is to say, a debt not proveable on Monday, for which the bankrupt was then liable notwithstanding his certificate, shall by a subsequent act of other persons become proveable on Friday. This is contrary to the whole principle of the bankrupt law, which fixes the relative liabilitics of the estate and bankrupt by the date of the commission or act of bankruptcy. How long are we to wait for the happening of these contingencies? It is not, says Mr. Justice Bailey, the intention of the legislature to lock up the property of the bankrupt upon the possibility that at some period or other some person may have a claim on it. Are we to wait six years or twenty, or till the expiration of a lease, when the bankrupt may be contingently liable for covenants?

Bankruptcy is a summary remedy-a festinum remedium. Are we to await the expiration of the time appointed by the Statute of Limitations, before we proceed to that speedy distribution which it is the declared intention of the legislature to effect? It is said, however, that it was also the intention of the legislature in the new statute to give the bankrupt a complete discharge from all liabilities. If so, the legislature has been unfortunate in the expression of its will, for by using the single word "liabilities," which it has not used, it would

have attained its purpose and might have dispensed with the greater portion of six long sections.

Mr. Commissioner Holroyd, in arguing on the case before him, at page 136-7, says-"A party taking a security of this sort does not give credit for a sum of money to the person who enters into such security. In Hoff ham v. Foudrinier (5 M. &. S. 21,) Lord Ellenborough says,"The taking a collateral security is not giving credit for a sum of money to the person who enters into such security." The relation of debtor and creditor is not thereby raised between the parties. To constitute a debt, the substance of the contract must, I think, be to pay a certain sum of money. By the words of the 56th section it is the payment alone of the debt that is put in contingency, not the contracting of the debt; and, putting this construction on the words of the section, the amount of the debt payable upon the contingency would be certain, though if the contingency had not happened the then value of the debt would be uncertain, according to time, of the probability or improbability of the happening of the circumstances upon which the payment of such debt was made to depend. The inconvenience and injustice to which a contrary construction would lead is great, and where is the line to be drawn? Suppose the case of a bond executed by the bankrupt in a large penalty conditioned to guarantee the performance of covenants in a lease, a farming, mining, or building lease; a future possible demand may arise on this bond during some period or after the expiration of the lease, which may be of any possible duration. Suppose a claim to be entered on such a bond for £5000, and the proofs amount to £500, the assets being sufficient to pay on the proofs and claim two shillings in the pound. Thus £500 would be locked up (sufficient to pay on the debts proved twenty shillings in the pound), because it was possible at some future period the whole or part of it might be claimed. A bond for the performance of covenants to do a collateral thing may never be forfeited, it may lie in perpetuam, and so the assets would never be administered; whereas the policy of the bankrupt law is to divide assets speedily, not to lock them up to meet future possible demands.

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Again: If such a debt be proveable, it would also be discharged by the bankrupt obtaining his certificate, which he might do before any actual breach of the condition of the bond; the breach of the condition might not happen until two, three or more years afterwards; the obligor might then be in good circumstances and able to pay; but no, the certificate would then be a bar to any such claim.

At page 156, Erskine, C. J., says, "In my judgment (February 20, 1834) in Exparte Myers, I have not sufficiently marked the distinction between contingent liabilities that may never become debts, and contingent debts that may never become payable. Upon the fullest consideration of all the reported decisions, I am satisfied that claims under the first class upon which no debt has arisen till after the bankruptcy, cannot be proved under the 56th section."

Exparte Myers, In re Myers, in note as reported in 12 Jurist 448, (May 31, 1848,) Commissioner Shepherd says, "I think in almost every case it is laid down that a debt must be an existing debt before the bankruptcy, though payable on a contingency. I think I am bound by the last case that a debt not existing at the time of the fiat, though payable on a contingency, cannot be proved."

Mr. Commissioner Fane, gives an elaborate judgment; reviewing the authorities and arguing on the words of the statute, contends that a debt payable on a contingency is a contradiction in terms. If there is a debt, there is no contingency; if there is a contingency, there is no debt; and concludes by differing in opinion from the other two commissioners.

Mr. Commissioner Evans says, "The deed is in effect a mere deed of indemnity. At the time of the bankruptcy no debt was due by the bankrupt; and after a review of the authorities, he arrives at the conclusion that the debt cannot be proven. Knight Bruce, Vice Chancellor, on the case being referred to him, considers the authorities against the proof, and on authority only confirmed the decision of a majority of the commissioners.

In Re John Foster (14 Jurist, page 814), it was determined that arrears of an annuity accruing after the bankruptcy could not be proved against the estate of a surety under

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