event to be damnified, and which he now seeks to prove, is 600l., and it was then wholly uncertain whether he would ever be damnified to the extent of one farthing. With regard to the supposed analogy, dwelt upon by one of the learned Judges (Sir G. Rose), to the case of an executor, who would, he conceives, be restrained from distributing the assets while such a bond remains in existence, I apprehend that it is met by the contrary doctrine laid down so long ago as in Harrison's case, 5 Co. 28 b., to the effect "that a debt due by bond shall be paid before a statute made to perform covenants, when none are, or perhaps ever will be, broken;" a doctrine fully recognised in many subsequent cases, as in Hawkins v. Day, Amb. 160, where it was held by Lord Hardwicke, that "the payment by an executor of a simple contract debt before a breach of condition of a bond entered into by his testator was good, and no devastavit in case of a deficiency of assets." And in the more recent case of Simmons v. Bolland, 3 Mer. 547, where Sir W. Grant, on a bill by a residuary legatee for the transfer of a fund retained by the executor for the purpose of protecting himself against any future demand in respect of covenants entered into by the testator, ordered (there being no existing breach of such covenants) that the fund be transferred as prayed, on the plaintiff's giving a sufficient indemnity; but which indemnity would clearly not have been requisite but for the distinction taken by Lord Hardwicke (in the case last before cited) between simple contract debts and legacies. Then, with respect to the other position assumed by the same learned Judge (Sir G. Rose), "that the present case is not to be looked at as that of a 1833. Ex parte MARSHALL and another. In the matter of Fox. 1833. In the matter of Fox. mere indemnity bond, since, in consideration of the bond, the sheriff parted with the goods which he Ex parte MARSHALL might have retained, and therefore that it may be and another. difficult to say that, independent of the bond, he would not be entitled to prove for the value," it appears to me not well founded, inasmuch as the goods were not those of the sheriff, but were claimed by the assignees as part of the bankrupt's estate, and would therefore never have been taken by them as a consideration for the bond, or by way of purchase. So also, on the part of the sheriff, it was not the goods (for they were not his own), but the risk he incurred in parting with them, for which he consented to accept the bond as an equivalent; and, setting aside the question of debt or no debt, this risk was utterly incapable of being made the subject of valuation. Again, and supposing even that the goods could be considered to have been parted with by the sheriff in consideration of the bond, they were so parted with, not to For only, but to Fox and Frasi jointly; and would, on that account alone, be incapable of becoming the subject of proof under Fox's separate commission. I have thought it necessary to say thus much by way of comment on this decision, because it is difficult to imagine how the order made by the learned Judges can be supported, except upon a principle wholly at variance with that which has been already adverted to as the result of all the authorities; namely, that in order to establish a proof under this 56th sect. there must be a debt contracted, and actually existing at the time of the bankruptcy; an allegation which cannot, I apprehend, be sustained with respect to a demand of the nature of that in question. That this was the state of the law previous to the 6 Geo. 4. c. 16. will not be disputed; and we have the authority of one of the first expounders of that statute, who is also understood to have been principally instrumental in framing its several enactments, that it was the intention of the legislature to preserve the law in this respect unaltered (a), an assertion confirmed by a series of decisions so clear and uniform that it is scarcely possible to find any doctrine more firmly established. Thus, in the case of Biré v. Moreau, 4 Bing. 57, which appears to be the earliest on this clause of, the statute, the bankrupt was held liable, notwithstanding his certificate, to be taken in execution for costs on a judgment entered up since the bankruptcy, although the verdict was previous, expressly upon the ground that such costs did not constitute "a debt contracted" within the statute; and in that of Atwood v. Partridge, 4 Bing. 209, where the defendant had covenanted for the due payment, by a third party, of the premium on policy effected to secure a debt due from that party to the plaintiff, it was in like manner held that the case was not within the statute, "it not being a debt due from the defendant, but merely a claim for unliquidated damages." a Then what is the doctrine to be found as laid down by Lord Tenterden in Boorman v. Nash, 9 Barn. Cres. 145, and Yallop v. Ebers, 1 Barn. & Adol. 698.; in the first of these cases his Lordship says, that the right of the plaintiff to maintain an action against a certificated bankrupt depended on the question 1833. Ex parte MARSHALL and another. In the matter of Fox. (a) Lord Henley, B.L. p. 129. (last ed.) 1833. Ex parte MARSHALL and another. In the matter of Fox. whether he could have proved his demand under the commission; adding, that it seemed impossible he could so have proved it, since, at the time the commission issued, it was uncertain, not only what amount of damages, but whether any damages at all, would be sustained; and in the latter case (Yallop v. Ebers) his Lordship held that there was "no debt" to which either of the specified clauses could be applicable And in addition to and in confirmation of these authorities, following (as they do) in the train of an uninterrupted course of older decisions, we have that of the present Lord Chief Baron, upon a case so strikingly analogous to the present that it must not be passed over without particular notice; viz. ex parte The Lancaster Canal Company, Mont. 27., where a joint and several bond in the penal sum of 20,000l. was given, conditioned (among other things) for collecting debts due to the company, and accounting for and paying over the balances when required. The obligors (who were partners in a banking-house) became bankrupt, and a proof was tendered on each of the separate estates for the amount of the balance due to the company at the time of the bankruptcy. This proof was rejected by the commissioners, whose decision was affirmed by the Vice-Chancellor, on the ground that the security of the bond having been waived by the nature of the dealings between the parties, the bankrupts were only jointly liable; and, on appeal to Lord Lyndhurst (then Chancellor), his Lordship again affirmed the decision, but on a different ground from that taken by the Vice-Chancellor, holding that there was no such breach of the condition as would constitute an existing debt so as to entitle the company to prove; and observing, further, that it could not be considered as a contingent debt under the statute, because there was no debt existing; and it had been determined by the Court of King's Bench that to give a right of proof there must be an actual debt depending on the contingency. There is, however, to be found in the books one, and that I believe a single, decision previous to the case of the Lancaster Canal Company, which is apparently at variance with this string of authorities. Ex parte Lewis, Mont. & Mac. 426., where A. advanced to B. a sum of money on the security of the bond of C., conditioned for payment if B. should make default on a day specified. C. became bankrupt before the day; and his Honor held, that although default was not made till after the bankruptcy, yet this was a debt proveable under the commission. But this, it will be observed, was an engagement to pay a sum certain, on a given event, limited in point of time, and thus, in some measure, distinguishable. I now come to two recent cases before the Court of Review; the first of which is ex parte Thompson, Mont. & Bli. 219., where it was held, in strict conformity (as we apprehend) with the former decisions, that "where a surety for an annuity covenanted to pay in case default were made by the grantor, and the surety became bankrupt before default, the value of the annuity was not proveable as a contingent debt." And his Honor the Chief Judge, in delivering his opinion to that effect, employs the very words made use of by the Courts of Common Pleas and King's Bench, and repeated by Lord Lyndhurst in the several cases cited, when his Honor says, "that to entitle party to prove by virtue of the 56th section, it must be made out that it was a debt contracted by the bankrupt, payable on a contingency; but that, in this case, there was no such obligation; it was not a debt con |