Debts payable by in dends equally with the other creditors, deducting only thereout a rebate of interest for what he shall so receive at the rate of five pounds per centum per annum, to be computed from the declaration of a dividend to the time such debt would have become payable according to the terms upon which it was contracted." Under this enactment a bill of exchange is proveable against the bankrupt drawer and he is discharged from the same, although at the time of the bankruptcy the bill had not been refused payment by the acceptor (a). A promissory note expressed to be made for value received and payable with interest twelve months after notice was held to be proveable under the bankruptcy of the maker, so that the maker was discharged by his certificate, although no notice had been given at the time of the bankruptcy (). The rebate of interest to be deducted applies only to the dividends received, and not to the amount of the debt to be proved (c). Debts payable by instalments are provided for by the stalments. Bankruptcy Act, 1861, 24 & 25 Vict. 134, s. 151, which enacts that "if any bankrupt shall have contracted before the filing of a petition for adjudication, any debt payable by way of instalments, the creditor may prove for the amount of such instalments remaining unpaid at the time of such petition." Annuities. An annuity creditor under a mere personal contract, not charged upon land, could formerly prove only for the arrears of the annuity due at the time of the act of bankruptcy,-the payments accruing afterwards becoming a debt after the bankruptcy, unless the annuity was secured by a bond, and the bond had become forfeited before the act of bankruptcy, when the penalty might be proved as a legal debt, and the annuitant was allowed to recover to the value of the annuity, to be proved as the debt (d). Now by the Bankrupt Law Consolidation Act, 1849, s. 175, (following the 6 Geo. IV. (a) Starey v. Barns, 7 East, 435; and see Alsager v. Currie, 12 M. & W. 751. (b) Clayton v. Gosling, 5 B. & C. 360. (c) Ex p. Hill, 2 Deac. 249. (d) See Ex p. Artis, 2 Ves. sen. 489; Perkins v. Kempland, 2 W. Bl. 1106; Cotterel v. Hooke, Doug. 97; Ex p. Le Compte, 1 Atk. 251; Ex p. Thistlewood, 19 Ves. 236. c. 16, s. 54, and the 49 Geo. III. c. 121, s. 17), it is enacted "that any annuity creditor of any bankrupt, by whatever assurance the same be secured, and whether there were or not any arrears of such annuity due at the bankruptcy, shall be entitled to prove for the value of such annuity, which value the Court shall ascertain, regard being had to the original price given for such annuity, deducting therefrom such diminution in the value thereof as shall have been caused by the lapse of time since the grant thereof to the date of the fiat or the filing of the petition for adjudication of bankruptcy." insurance. Policies of insurance, also bottomry and respondentia Policies of bonds, being contingent debts, formerly were not proveable unless the contingency happened before the bankruptcy; but by the Bankrupt Law Consolidation Act, 1849, s. 174, (following the 19 Geo. II, c. 32, s. 2, and the 6 Geo. IV. c. 16, s. 53), it is enacted "that the obligee in any bottomry or respondentia bond, and the assured in any policy of insurance, made upon good and valuable consideration, shall be admitted to claim, and after the loss or contingency shall have happened, to prove his debt or demand in respect thereof, and receive dividends with the other creditors, as if the loss or contingency had happened before the issuing of the fiat or the filing of the petition for adjudication of bankruptcy against such obligor or insurer." Policies of insurance upon lives are within this enactment (a). With respect to contracts of suretyship the Bankrupt Law Debts paid Consolidation Act, 1849, s. 173, enacts "that any person bail for by surety or who at the time of issuing the fiat, or of filing a petition for bankrupt. adjudication of bankruptcy, shall be surety or liable for any debt of the bankrupt, or bail for the bankrupt, either to the sheriff or to the action, if he shall have paid the debt, or any part thereof in discharge of the whole debt, (although he may have paid the same after the issuing of the fiat or the filing of the petition for adjudication of bankruptcy), if the creditor shall have proved his debt under the bankruptcy, shall be entitled to stand in the place of such creditor as to the dividends and all other rights under the bankruptcy (a) Cox v.Liotard, 1 Doug. 166. Debts pay contin gency. which such creditor possessed or would be entitled to in respect of such proof; or if the creditor shall not have proved, such surety or person liable, or bail, shall be entitled to prove his demand in respect of such payment as a debt under the bankruptcy, not disturbing the former dividends, and may receive dividends with the other creditors, although he may have become surety, liable or bail as aforesaid, after an act of bankruptcy committed by the bankrupt, provided that such person had not, when he became such surety or bail, or so liable as aforesaid, notice of any act of bankruptcy by such bankrupt committed." Debts payable upon a contingency, in general, were adable upon a mitted to proof by 6 Geo. IV. c. 16, s. 56, repeated by the Bankrupt Law Consolidation Act, 1849, s. 177, which enacts, "that if any bankrupt shall, before the issuing of the fiat or filing of a petition for adjudication of bankruptcy, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such fiat or the filing of such petition, the person with whom such debt has been contracted may, if he think fit, apply to the Court to set a value upon such debt, and the Court is hereby required to ascertain the value thereof, and to admit such person to prove the amount so ascertained and to receive dividends thereon; or if such value shall not be so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive dividends with the other creditors, not disturbing any former dividends; provided such person had not when such debt was contracted, notice of any act of bankruptcy by such bankrupt committed." upon a con In the construction of this enactment a distinction has Liability to pay money been taken between contingent liabilities which may never tingency. become debts, and debts payable on a contingency; and it has been held that the latter only are proveable under it (a). Liabilities of the former kind are provided for by s. 178, which enacts "That if any trader who shall become bankrupt after the commencement of this Act shall have con (a) Hinton v. Acraman, 2 C. B. 367, 409; Ex p. Marshall, 1 Mont. & Ayr. 145; Abbott v. Hicks, 5 Bing. N.C. 578; South Staffordshire Ry. tracted, before the filing of a petition for adjudication of bankruptcy, a liability to pay money upon a contingency which shall not have happened, and the demand in respect thereof shall not have been ascertained before the filing of such petition, in every such case, if such liability be not proveable under any other provision of this Act, the person with whom such liability has been contracted shall be admitted to claim for such sum as the court shall think fit; and after the contingency shall have happened, and the demand in respect of such liability shall have been ascertained, he shall be admitted to prove such demand, and receive dividends with the other creditors, and, so far as practicable, as if the contingency had happened and the demand had been ascertained before the filing of such petition, but not disturbing former dividends, provided such person had not, at the time such liability was contracted, notice of any act of bankruptcy by such bankrupt committed; provided also, that where any such claim shall not have, either in whole or in part, been converted into a proof within six months after the filing of such petition, it may, upon the application of the assignees at any time after the expiration of such time, and if the court shall think fit, be expunged, either in whole or in part, from the proceedings" (a). of insu Where the defendant by deed assigned a policy of insu- Premiums rance on his life to the plaintiff to secure a debt, and cove- upon policy nanted to pay the annual premiums, and also that, if he rance. made default, the plaintiff might pay the premiums for the purpose of keeping up the policy, and that the defendant would on demand pay to the plaintiff the money so paid, it was held that, as to premiums becoming due after the bankruptcy of the defendant, the liability of the defendant on those covenants was not proveable as a liability to pay money upon a contingency within the above section (b). To meet (a) As to when this section is applicable, see Maples v. Pepper, 18 C. B. 189; 25 L. J. C. P. 243; Arnott v. Holden, 18 Q. B. 595; Boyd v. Robins, 5 C. B. N. S. 597; 28 L. J. C. P. 73; White v. Corbett, 1 E. & E. 692; 28 L. J. Q. B. 228; Greet v. Webb, 5 H. & N. 601; General Discount Co. v. Stokes, 17 C. B. N. S. 765; 34 L. J. C. P. 25; Ex p. Kemp- (b) Toppin v. Field, 4 Q. B. 386; mages. this particular case it was enacted by "the Bankruptcy Act, 1861," s. 154, that "If any bankrupt shall at the time of adjudication be liable by reason of any contract or promise to pay premiums upon any policy of insurance, or any other sums of money, whether yearly or otherwise, or to repay to or indemnify any person against any such payments, the person entitled to the benefit of such contract or promise may, if he think fit, apply to the court to set a value upon his interest under such contract or promise, and the court is hereby required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon." Liability on It was formerly necessary that a demand, in order to be contract for proveable, should in all cases be ascertained in amount, or unliquidated da capable of being ascertained in amount without the intervention of a jury, and not a mere claim for unliquidated damages (a). But by "the Bankruptcy Act, 1861," s. 153, it is enacted that "If any bankrupt shall at the time of adjudication be liable, by reason of any contract or promise, to a demand in the nature of damages which have not been and cannot be otherwise liquidated or ascertained, it shall be lawful for the court acting in prosecution of such bankruptcy to direct such damages to be assessed by a jury, either before itself or in a court of law, and to give all necessary directions for such purpose; and the amount of damage, when assessed, shall be proveable as if a debt due at the time of the bankruptcy; provided that in case all necessary parties agree, the court shall have power to assess such damages without the intervention of a jury or a reference to a court of law." A demand for damages consequent on a breach of contract committed after adjudication cannot be proved under this section (b). A demand for damages for any other cause than a contract or promise within the above section, as for a (a) Utterson v. Vernon, 3 T. R. Bing. 209; Woolley v. Smith, 3 C. B. 610. (b) Ex p. Mendel, 1 De G. J. & S. 330; 33 L. J. B. 14; Ex p. Kempson, 34 L. J. B. 21. |