be difficult to determine to which of the above contracts these expressions would be most suitable.

Upon the whole, therefore, it appears to me that wherever there be in existence at the bankruptcy a contract by the bankrupt to pay money to the alleged creditor, but the payment is contingent in respect either that it is altogether uncertain whether any payment will ever be due, or that the day of payment is uncertain, or that the amount to be paid is uncertain, still, if events happen which remove those contingencies before a proof is tendered, the proof ought to be admitted.

If it be said that uncertainty of payment is a fatal objection, the answer is, that in ex parte Lewis (a), ex parte Myers (b), ex parte Tindall (c), and ex parte Grundy (d), it was uncertain at the bankruptcy whether any payment would ever be due.

If it be said that uncertainty as to the period of payment is a fatal objection, if that uncertainty be produced, as in ex parte Lancaster Canal Company, Mont. & Bli. 94., by the necessity for a previous notice, the answer is, why should uncertainty so produced be more fatal than uncertainty produced by the time of payment being dependent on a death. If a contract by the bankrupt to pay B. on a death be proveable, why should a contract by the bankrupt to pay B. on demand, or when requested, or within a month after demand or request, not be proveable? The period of a demand or request is not more uncertain than the time of a death.

If it be said that uncertainty as to the amount to be paid is a fatal objection, the answer is, the amount was uncertain in ex parte Lewis and ex parte Myers.

The only remaining argument against the proof is, that if proofs be admissible in such cases, claims must also be entered; that those claims might be of uncertain amount, and thus prevent that which is the main object of the bankrupt law, namely, the early distribution of the funds.

1833.

Ex parte MARSHALL and another. In the matter

of

Fox.

(a) Mont. & Mac. 426.
(b) Mont. & Bli. 229.

(c) Mont. 375.

(d) Mont. & Mac. 293.

1833.

Ex parte MARSHALL and another. In the matter

of Fox.

I do not see the force of this argument. By the Bankrupt Act there can be no dividend earlier than four months after the date of the fiat. There would be nothing unreasonable in saying to the claimant, " claims are intended to protect the interests of those who have a present right of proof, but are not at the moment prepared to substantiate their proof. The division of the fund is suspended by law four months at least. You must take your chance of being prepared to prove within the four months, or such further time as accident may give you." In nine cases out of ten, perhaps in ninety-nine out of a hundred, the time which accident would give would be ample, and perhaps in a special case it might not be an unwise exercise of discretion to admit a claim. If it be said that injustice might occasionally result, the answer is that injustice frequently results from the present system. All that is proposed is, that the right should be tried with reference to a different date, the date of the distribution of the assets, not that of the fiat. In such cases something must be left to chance. The principle of doing so has been adopted in all those cases where, under a gift in a will to a class, those only of the class are admitted to participate who happen to be in esse when the period of distribution arrives. A child is born to-day, he is admitted; had he not been born till to-morrow he would have been excluded. A line must be drawn, the best that can be devised. If hardship ensue, the sufferer must submit.

It has sometimes been said, that the 56th section was intended to provide, not for two classes of cases, but for one only, namely, that in which the contingency was from the first capable of valuation. The language of the clause does not seem to require such a construction, and such a construction would narrow in a very mischievous degree the remedial effect of the clause. It was so argued in ex parte Myers; but Erskine, C. J., declared, p. 237, that that did not appear to him "to be the sound construction." That case is a direct authority against the notion.

Upon the whole it is submitted, that the proof in ex parte Marshall ought to have been admitted.

GENERAL ORDER,

22 MAY 1833.

SPECIAL CASE.

It is ordered, That every special case of appeal from the Court, tendered for the approval of one of the judges, shall be left for that purpose at the office of the registrar, signed by the counsel for the respective parties, or accompanied with a certificate from the counsel for the appellant that there is, in their judgment, good cause for such appeal, and an affidavit that a copy of such case has been delivered to the solicitor for the other party eight days prior to such tender thereof.

THOMAS ERSKINE, C. J.

J. CROSS, J.

G. ROSE, J.

DIGEST

OF THE

CASES REPORTED IN THIS VOLUME,

AND OF THE

CONTEMPORARY CASES

DECIDED IN ALL THE OTHER COURTS.