stay of proceedings, as the claim was not provable under section 19 of the act of 1867. (Zimmer v. Schleehauf, 11 N. B. R. 313.) See also sec. 57, ante: CLAIMS PROVABLE, p. 284; CLAIMS NOT PROVABLE, p. 287.

What are debts provable.— A creditor who had not proved his claim, though it was provable, sued on it. Defendant pleaded his bankruptcy and that the debt was provable and would be barred by discharge, and that proceedings were pending. It was held that the claim could be prosecuted to judgment. (Holland v. Martin, 18 N. B. R. 359; sec. 5105, R. S.) After proceedings in bankruptcy, government recovered against the bankrupt in a suit to which the assignee had not been made a party. It was held that as the claim was provable at the time of adjudication the judgment might be proved. (In re Rosey, 8 N. B. R. 509; 6 Ben. 507; Fed. Cas. 12066.) A petition may be filed by a creditor upon a claim which is not due if it is provable in bankruptcy. (Linn et al. v. Smith, 4 N. B. R. 12; 3 Amer. Law T. 218; 1 Amer. Law T. Rep. Bankr. 229; Fed. Cas. 8375.) Involuntary proceedings may be instituted against a debtor, although the debt is not due, if it is a provable debt. (In re Alexander, 4 N. B. R. 45; 18 Pittsb. Leg. J. 81; 3 Amer. Law T. 280; 1 Amer. Law T. Rep. Bankr. 238; Fed. Cas. 161.) By the term "debts provable under this act," Congress meant debts unconditionally provable, without preliminary action, either by the court or by the assignee, being necessary. (In re Scrafford, 14 N. B. R. 184; 3 Cent. Law J. 252; Fed. Cas. 12557; In re Frost, 11 N. B. R. 63; 6 Biss. 213; 7 Chi. Leg. News, 42; Fed. Cas. 5134.) Any debt which may be proved by complying with the Bankrupt Act is a provable debt. (Rankin et al. v. Florida, etc. R. R. Co., 1 N. B. R. 196; 1 Amer. Law T. Rep. Bankr. 85; Fed. Cas. 11567.) See also sec. 57, ante: CLAIMS PROVABLE, p. 284; CLAIMS NOT PROVABLE, p. 287; THE RECONSIDERATION OF ALLOWED CLADIS, p. 303.

b. Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.

[Act of 1867. SEC. 19. . . In all cases of contingent debts and contingent liabilities contracted by the bankrupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends if the contingency shall happen before the order for the final dividend; or he may at any time apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertained. . . If any bankrupt shall be liable for unliquidated damages arising out of

any contract or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed against the estate.]

When unliquidated damages provable.-Unliquidated damages growing out of contract when assessed are provable debts, and may be set up to show that no debt is due to petitioner entitling him to have defendant declared bankrupt. (In re Osage Valley & S. Kan. R. R. Co., 9 N. B. R. 281; 1 Cent. Law J. 33; Fed. Cas. 10592.) A debt which is contested in a state court may be allowed to proceed to judgment for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy proceedings, but execution shall be stayed. (In re Rundle and Jones, 2 N. B. R. 49; 1 Chi. Leg. News, 30; Fed. Cas. 12138.) Plaintiff sued for breach of covenant of warranty. Defendant pleaded in bar a discharge. It was held that a claim for breach of warranty is such a claim as should be proved in a bankrupt court; and therefore the discharge was a bar to such a claim, it having accrued prior to proceedings in bankrupt court. (Williams v. Harkins, 15 N. B. R. 34.) If a decision is not rendered until after final dividend, a bond to return property, if the decision requires it, is not a provable debt. (United States v. Rob Roy and Cargo, 13 N. B. R. 235; 1 Woods, 42; Fed. Cas. 16179.) No claims can be provable that were not liquidated at the time of the adjudication. (United States v. Rob Roy and Cargo, 13 N. B. R. 235; 1 Woods, 42; Fed. Cas. 16179.) A right of action for misrepresentation of a firm's condition, afterward bankrupt, is not provable as a debt. (In re Schuchardt and Wells, 15 N. B. R. 161; 8 Ben. 585; Fed. Cas. 12483.) Where a bankrupt, prior to bankruptcy, sells land under a covenant for title, when the wife of a former owner has a dower not relinquished, the claim for breach of covenant, in the event of the wife surviving and asserting her rights, is not such an "unliquidated" claim as may be proved in bankruptcy, and in an action a discharge is a complete defense. (Riggin v. Maguire, 8 N. B. R. 484; 15 Wall. 549.) A claim for rent, falling due after proceedings and after surrender of the premises by the assignee, cannot be proven as a debt against the bankrupt estate. (Bailey, Ass., v. Loeb & Bro., 11 N. B. R. 271; 2 Woods, 578; 2 Cent. Law J. 42; Fed. Cas. 739.) See also sec. 57, ante: THE PROOF OF SECURED CLAIMS, p. 281; CLAIMS HELD TO BE UNSECURED, p. 282; CLAIMS PROVABLE, p. 284; CLAIMS NOT PROVABLE, p. 287; THE ALLOWANCE OR REJECTION OF CLAIMS, p. 289; DEBTS DUE THE UNITED STATES OR A STATE, p. 302.

Sec. 64. Debts which have priority.-a. The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, State, county, district,

or municipality in advance of the payment of divide creditors, and upon filing the receipts of the proper officers for such payment he shall be credited wi amount thereof, and in case any question arises as amount or legality of any such tax the same shall be and determined by the court.

See subdivision "b" of this section for analogous provision in of 1867.

By this section the United States as well as the state, county nicipality are entitled to priority of payment of all taxes legally owing by the bankrupt, and a discharge is no release therefrom 17, a.) While debts owing to the United States, state, county or pality as a penalty or forfeiture are only allowable for the am the pecuniary loss sustained by the act, transaction or proceeding which the penalty or forfeiture arose (sec. 57, j), neither of the fo sections, nor anything else contained in this or any other act, ap operate as a repeal of Revised Statutes, section 3466, which was March 3, 1794, and which is as follows: "Whenever any person in to the United States is insolvent, or whenever the estate of any d debtor, in the hands of the executors or administrators, is insuffi pay all the debts due from the deceased, the debts due to the States shall be first satisfied; the priority hereby established s tend as well to cases in which a debtor, not having sufficient p to pay all his debts, makes a voluntary assignment thereof, or in the estate and effects of an absconding, concealed or absent del attached by process of law, as to cases in which an act of bankr committed."

Taxes due the United States.- The United States was ent priority without regard to the form of the indebtedness, under of 1867, and it was in nowise bound by that act, but was ent priority, although it did not prove its claim. It was not require haust the collaterals held by it before claiming priority of pa (Lewis, Trustee, v. United States, 14 N. B. R. 64; 92 U. S. 618.)

An internal revenue bond upon which individual members partnership are sureties is not entitled to priority out of the part assets of the estate of the copartnership in bankruptcy. (In r et al., 9 N. B. R. 183; 2 Amer. Law T. Rep. Bankr. 87; 9 Int. Rev. R 16 Pittsb. Leg. J. 43; Fed. Cas. 17313.) A state need not prove it in bankruptcy to recover taxes due it on property of the bankru the bankrupt law cannot compel proof of such claim, nor sell t erty so subject free from the tax lien. (Stokes v. State of Ge N. B. R. 191. See also In re Brand, 3 N. B. R. 85; 2 Hughes, 334; Law T. Rep. Bankr. 66; Fed. Cas. 1909.) See also PRIORITY UNDE ERAL OR STATE LAWS, sec. 64.

b. The debts to have priority, except as herein provided, and to be paid in full out of bankrupt estates, and the order of payment shall be (1) the actual and necessary cost of preserving the estate subsequent to filing the petition; (2) the filing fees paid by creditors in involuntary cases; (3) the cost of administration, including the fees and mileage payable to witnesses as now or hereafter provided by the laws of the United States, and one reasonable attorney's fee, for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases, to the bankrupt in involuntary cases while performing the duties herein prescribed, and to the bankrupt in voluntary cases, as the court may allow; (4) wages due to workmen, clerks, or servants which have been earned within three months before the date of the commencement of proceedings, not to exceed three hundred dollars to each claimant; and (5) debts owing to any person who by the laws of the States or the United States is entitled to priority.

[Act of 1867. Sec. 27. Except that wages due from him to any operative, or clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the adjudication of bankruptcy, shall be entitled to priority, and shall be first paid in full.

SEO. 28. In the order for a dividend, under this section, the following claims shall be entitled to priority or preference, and to be first paid in full in the following order:

First. The fees, costs, and expenses of suits, and the several proceedings in bankruptcy under this act, and for the custody of property, as herein provided.

Second. All debts due to the United States, and all taxes and assessments under the laws thereof.

Third. All debts due to the State in which the proceedings in bankruptcy are pending, and all taxes and assessments made under the laws of such State.

Fourth. Wages due to any operative, clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the first publication of the notice of proceedings in bankruptcy.

Fifth. All debts due to any persons who, by the laws of

the United States, are or may be entitled to a prio preference, in like manner as if this act had not been p Always provided That nothing contained in this act

interfere with the assessment and collection of taxes i authority of the United States or any State.]

Cost of preserving estate-Rent.- The assignee of the bankı cupied the leased premises after adjudication. It was held th due for such time was a preferred claim (In re Butler, 6 N. B. R. Pittsb. Leg. J. 146; Fed. Cas. 2236. See also In re Webb & Co., 6 302; Fed. Cas. 17315); and also from the time of filing the petiti from the time of taking possession by court officers. (In re Ros & Co., 3 N. B. R. 63; 1 Balt. L T. 625 Fed. Cas. 12043; In re Hu 12 N. B. R. 554; Fed. Cas. 6837; In re Walton et al., 1 N. B. R. 15 Cas. 17131; In re Merrifield, 3 N. B. R. 1; Fed. Cas. 9465; In re Ham & Frankel, 12 N. B. R. 277; 1 N. Y. Wkly. Dig. 53; Ted. Cas. 5975; In et al, 8 N. B. R. 28; Fed. Cas. 7116; Buckner v. Jewell et al., 14 N. B. When a landlord makes a demand upon the assignee, before the r of the goods, for an amount not exceeding a year's rent, it should mitted as entitled to priority of payment. (In re Appold, 1 N. B. R Amer. Law Reg. (N. S.) 624 6 Phila. 469; 25 Leg. Int. 180; 1 Amer. Rep. Bankr. 83; Fed. Cas. 499.) A clain. for rent which accrued af filing of the petition in bankruptcy, under a lease executed prior t filing, is not provable in bankruptcy (In re May & Merwin, 9 N 419; 7 Ben. 238; Fed. Cas. 9325); and where, a debtor being ad bankrupt, the marshal took possession of the goods and premise period of two months, after which the landlord applied for an alle for rent for such period, the court refused to allow the rent. McGrath & Hunt, 5 N. B. R. 254; 5 Ben. 183; Fed. Cas. 8808.) T vention of injury to the premises by not removing machinery is no considered in determining the compensation to the landlord for t of the premises by the assignee. (In re Breck & Schermerhorn, 1 R. 215; 8 Ben. 93; Fed. Cas. 1822.)

See also, RENT UNDER STATE LAWS, post, p. 368.

Court fees paid by creditors.- Petitioning creditors who hav cured the involuntary adjudication of a bankrupt, and an inju staying proceedings against him in actions in state courts in whic rants have been levied upon his property, are entitled to be reim their expenses from the assets of the bankrupt's estate (In re Sch N. B. R. 155; 3 Ben. 231; 3 Balt. Law Trans. No. 9; 16 Pittsb. Leg. Fed. Cas. 12198); but notaries taking proofs of debt in bankrupt ceedings are not entitled to priority of payment of their fees. Nebe, 11 N. B. R. 259; Fed. Cas. 10073.)

Costs of administration.-Costs and expenses in bankruptcy pr ings are payable out of the fund derived from the sale of the bank