With respect to cases of tort:-damages claimed for an Damages. assault and battery (1), or for slander or even in trespass Cases of for mesne profits (2), in which the rent may not be the tort. only measure of damage, or damages in an action of trover (3), if they are incapable of being liquidated, - can in no case be proved under a commission; for, in each of these cases, the claim of the party amounts in law to nothing more, than an alleged cause of action against the bankrupt and a jury can only determine the amount of the damages he is entitled to- or whether, in fact, he shall have any damages at all. In one case, indeed, it was holden, that damages (though ascertained by the verdict of a jury before the act of bankruptcy) were not proveable, any more than the costs, if final judgment was not signed until after the bankruptcy. (4) But it has been since determined May be that when the judgment is obtained before the issuing of proved the commission, the damages are then proveable, as con- judgment stituting a debt contracted bona fide within the meaning of before the the 47th section of the statute. (5) And in a very recent sion. case it was holden, that though the judgment was not actually signed until three days after the commission issued, yet as a judgment relates back to the first day of the term in which it is signed, which in this case was before the issuing of the commission that both damages and costs could be proved. (6) when commis may when be ver In considering this branch of the subject, there seems to Semble, be a distinction, between the right to prove damages already damages ascertained by the verdict of a jury-and the right to prove proved, merely upon the JUDGMENT, or for the costs. For though a judgment is not proveable, nor costs in many cases (7), unless the judgment is obtained before the issuing of the commission,-yet, as a verdict is prima facie evidence of a dict only before bank ruptcy. Damages. debt (1), and is, at least, a guide to the commissioners to measure the amount of the damages which the creditor claims, it should seem, that when proof is offered merely for damages (without any claim for costs) by reason of a verdict before the bankruptcy, the commissioners in such a case have a discretionary power to inquire into the propriety of the verdict, and to admit the creditor to prove for such damages, provided they are satisfied of the justice of his claim. (2) For it is the uncertainty only of the amount of the damages, which prevents their being proved under a commission; a reason which no longer holds, when they are already liquidated and ascertained. Thus, where an action was brought for the seduction of the plaintiff's daughter, and was compromised before judgment by the defendant giving the plaintiff two promissory notes in satisfaction of the damages,—it was held, that the notes were proveable under a commission against the defendant, as being liquidated damages assessed between the parties. (9) So, even in an action of trover, if the demand can be liquidated, it can be proved. (4) Where creditor may waive the tort and bring, money had and received, may prove. In all cases, too, where a creditor, having a right of action for a TORT, is entitled to waive the tort and bring an action as for money had and received, or upon a contract for a given sum, he may prove his demand (5) under a commission. Therefore, where goods have been paid for, but not delivered by the bankrupt (6) according to agreement; or where money is levied by the sale of goods under an execution which is afterwards set aside (7); or where a bill of exchange, having been entrusted to the bankrupt to receive payment when due, is discounted by him, and the proceeds applied to his own use (8); or where the bankrupt pledges a debenture for a debt of his own, which had been de posited with him for a special purpose (1); or where money Damages. is embezzled by a bailiff upon a sale of goods under a distress for rent (2); — in all these cases, as the amount of the creditor's demand against the bankrupt is capable of being ascertained without the intervention of a jury, and the creditor can safely swear to it, he is entitled to prove it under the commission. But if the creditor, in any of these cases, insists upon his claim for the consequential damage arising from the tortious act of the bankrupt, then he cannot be admitted to prove; for the damages so claimed are uncertain and contingent, and can only be estimated by a jury. on a con sounding certained. In regard to claims founded upon contract, such as a Claims founded demand either for goods sold, or for work and labourwhere there is no agreement as to the price, and which tract, would be recoverable at law in an action on a quantum though meruit — the demand, though sounding in damages, can be in da proved, because it can be easily ascertained, and the cre- mages, proveable, ditor can have no difficulty in swearing to the amount. So where where a bond (as we have before seen (3)) is given to re- amount place stock on a certain day, and the bond is forfeited easily asbefore the bankruptcy, the damages for not replacing the Bond to stock can be proved, because they can be easily estimated, replace -the amount proveable in this case, being the value of the stock at the date of the commission, together with the amount of the dividends receivable before the bankruptcy. (4) And where navy bills were deposited with a Accountfirm, who gave an accountable receipt for them, and one able reof the firm became bankrupt, the owner of the bills was held entitled to prove for the value of them on the day of the deposit. (5) Not only, indeed, may the creditor prove his demand against the bankrupt in any of these cases, but he is now in fact compelled to do so, with a view to his 74. (1) Johnson v. Spiller, Doug. 167. (2) Ex parte Dobson, 7 Vin. Ab. (3) Ante, 256. (4) Ex parte Leitch, C. B. L. 149.; and see ante, 236. (5) Bromley v. Child, 1 Atk. 258. stock. ceipt for navy bills. Damages. own security; for all such demands arising from any breach of contract, which can with any certainty be liquidated, are discharged when the bankrupt obtains his certificate. (1) But not where But unliquidated damages, though arising on a contract, proveable cannot be proved, if there is any uncertainty in the mode damages of estimating them. Thus damages sustained from a breach uncertain. of covenant, in not building a certain number of houses within a given time (2), in not having full power and authority to sell a ship (3), or in not indemnifying the assignor of a lease from the covenants contained in it (4), have been in each of these cases held not proveable under a commission. For in all such cases a variety of circumstances must be taken into consideration, which may either increase, or mitigate, or even sometimes altogether excuse the damages, and which it is the peculiar province of a jury to determine. And where there is even a penalty, or specific sum of money made payable in a bond of indemnity, or covenant to secure performance as upon a covenant in a lease not to plough up ancient meadow - the penalty, it has been held, cannot be proved as a debt; as it is not the measure, but only limits the extent, of the damages to be claimed in case of a breach. (5) SECTION XXI. Sureties. 1. As to the Rights of a Creditor against the Bankrupt Surety. 2. As to the Rights of the Solvent Surety against the Bankrupt Debtor, or Co-Surety. 1. As to the Rights of the Creditor against the Bankrupt Surety. against depends. Where a surety has become bankrupt, the right of the Right to creditor to prove under the commission has been con- prove sidered to depend upon, whether the engagement of the surety, surety was absolute, or conditional, at the time of the bank- how it ruptcy. For the 49 Geo. 3. c. 121. s. 8. which gave relief to the surety as a creditor, has been held not to apply to cases, where the surety himself becomes bankrupt (1); and there is nothing contained in the corresponding section of the new statute, which alters the law in this respect. Such cases, therefore, must be considered as falling within the rule respecting contingent debts contained in the 56th section of the new statute. (2) ment ab ditor may If the engagement of the surety be absolute, the creditor Where the has a right of course to prove, independently of the power engagegiven by the 56th section as where the surety enters solute, crewith the principal into a joint and several bond payable by instalments, and before the first instalment falls due, the surety becomes bankrupt;-for in such a case the surety himself is considered as a principal. (3) But, if in this case the principal, as well as the surety, become bankrupt, (1) Ex parte M‘Millan, Buck. 287. (2) See ante, "Contingent Debts." (3) Brooks v. Lloyd, 1 T. R. 17. prove as of course, deducting what he has already received. |