due and payable after the bankruptcy of the defendant, were not proveable under the commission of bankruptcy against the defendant under the statutes then in force concerning bankrupts; secondly, that the liability under said writing obligatory was not embraced within the true intent and meaning of the said statutes, and was not discharged thereby; thirdly, that as to the promissory notes which fell due and payable after the bankruptcy of the defendant, the said writing obligatory, at the time of the said bankruptcy of the defendant, was not forfeited.

The demurrer was argued during last Hilary term, when McDonald, for the demurrer, contended that the defendant, having become bankrupt after default in the payment of the four first-mentioned notes, and for which the plaintiff was not proceeding in this action, did not discharge the bond, which remained still in force, to secure the last six notes, for which this action is brought; and that such six notes having become due since the bankruptcy, were not proveable under it, but the plaintiff remains at common law on the bond, subject to the suggestion of breaches under the statute 8 & 9 Wm. III. ch. 11, sec. 8: That the plaintiff might, before the bankruptcy, have sued the defendant on the bond, by reason of the former breaches, and recovered judgment for the whole penalty; and had he done so, his course now would have been by scire facias, suggesting further breaches under the statute to obtain execution therefor: That the English bankrupt acts and ours differ, as a comparison shews,-that the Imperial statute 6 Geo IV. ch. 16, specified three classes of debts proveable thereunder; first, all debts due; second, all debts certain to become due; and, third (sec. 56), all debts contracted, payable on contingencies, and capable of valuation before such contingency happened; and that our statute provided for the two first only, and not for the third or last; that it (the provincial statute 7 Vic. ch. 10, sec. 35) provided for eleven species of debts or demands, enumerating them, but not including debts payable on a contingency not yet happened. He cited Ex parte Adney, 2 Cow. 476, A. D. 1776; Johnson v. Compton, 4 Sim, 37, 1830; which last was the case of a covenant to secure an annuity granted by another person:

That no debt was due as a debt, but the bond constituted only a security or liability-Lane v. Burghart, 4 Scott, N. R. 294; S. C., 3 M. & G. 597; Millen v. Whittlebury, 1 Camp. 428; Yallop v. Ebers, 1 B. & Ad. 698; S. C. 1 Leb. Ob. 317,—that the plaintiff could not have sworn to any debt, or been a good petitioning creditor; and that the only clause in our statutes that relates to sureties is not applicable, and that the present demand was not a debt proveable under the commission.

Vankoughnet, Q. C., against the demurrer, distinguished a penal bond forfeited by partial breaches of the condition before the bankruptcy from other contracts by parol or sealed, and contended that upon the first breach the penalty had become a debt at law; and that, being previous to the defendant's bankruptcy, it was proveable accordingly. He relied strongly upon the case of The Skinners Co. v. Jones, 3 Bing. N. S. 481, as much in point in governing this case, and referred to Archbold on Bankruptcy, p. 126-7, for the authorities bearing on the subject.

McDonald, in reply, said a judgment was stronger than a bond, and yet a judgment was not recognized as a debt in Johnson v. Compton (supra); that to be admitted to proof, the creditor must swear to the amount due, and could not do so here; that the case cited on the other side was an absolute undertaking—not contingent, as if the other party should pay, but that he shall pay-while here it was strictly conditional, if Shaw did not pay the defendant would. He also cited Willoughby v. Swinton, 6 East, 550, that it was a case within the statute requiring breaches to be assigned, &c., and not one in which the plaintiff was entitled to the whole penalty as a debt when the act of bankruptcy was committed.

At the second argument, with reference to the provincial statute 9 Vic. ch. 30, sec. 32, not cited at the first argumer*, McDonald, for the plaintiff, contended the penalty was not a debt proveable in bankruptcy, but that the condition was looked to, and that in this case no debt arose out of the terms of the condition, except as it accrued by each successive default: That in The Skinners Co. v. Jones the defendant was a principal, not a surety, which made all the difference, as that case shewed, which was held not to come under the 6

Geo. IV. ch. 16, sec. 56, which bears close resemblance to our own act 9 Vic. ch. 30, sec. 32. So, he argued, in the case of Willis, 4 Ex. R. 630, the defendant was a principal contractor, not a surety for or at the instance of another person, nor were the facts in other respects identical with the present case. He submitted there was no substantial distinction between the 56th section of the Imperial act and the 32nd section of our own act, and that at all events the plaintiff was entitled to recover the amount of the stock notes, which notes he could not have proved in bankruptcy, the amount sounding entirely in damages, and necessarily requiring the intervention of a jury to ascertain it; and if so, it was an answer to the defence in this demurrer.-4 Bing. 209. As to the money notes, he again urged that their amount did not constitute a debt contracted, but only a contingent liability, a mere liability to become indebted that to create a debt contracted, payable on a contingency, it must be capable of valuation before the contingency happened, as if under section 56 of the Imperial statute that before such contingency happened no such valuation could have been placed upon them in this case; and not having happened before the bankruptcy, the plaintiff could not have been let in, and is therefore not barred this action: that the cases under the first part or clause of the 56th section of the Imperial statute, are to be applied to the 32nd section of the Provincial act, and govern the question whether it was a debt contracted or not; and that they shew it was not, but a mere contingent liability: that when one contracts as a principal, it does not form a contingent debt, as it does in the case of a surety, or that in the latter case it constitutes only a liability as distinguished from a contingent debt, if the former may be so regarded. Until the event, it remains a contingency whether the surety will ever become indebted at all. He likewise submitted that the plaintiff had an election to seek relief in bankruptcy, or to await the contingency and sue at law, referring to 6 Geo. IV. ch. 16, sec. 59, and Ex parte Marshall, 1 M. & A. 126.

Vanhoughnet, Q. C., in reply, again relied upon The Skinners Co. v. Jones as conclusive in the defendant's favor, and upon the late case of Arnott v. Holden, 17 Jurist, 318, and

contended that the defendant here was as much a principal as the defendant in the first case, and less a surety than the defendant in the last case; that contingent liabilities arise where there is no debt certain, due, or payable by any one, as annuities, when the liability of the principal to become indebted depends on the contingency of the annuitant living at the time the annuity accrues and becomes due and payable; but that persons guaranteeing the payment of debts certain, contract debts payable on a contingency, that they espouse the debt, or its payment, which is the same thing, but only oblige themselves to pay it contingently, in the event of the party primarily or concurrently liable to pay it failing to do so that here the language used in the condition is peculiarly emphatic as respects the defendant's undertaking to pay, although only contracting as surety for Shaw. Further, that the bond having been forfeited before the bankruptcy, brought it within the cases on that head; that had the contingency happened before the bankruptcy, or even afterwards before it became too late to prove, the plaintiff might have proved, according to the whole current of authorities relating to the Imperial statute 6 Geo. IV. ch. 16, sec. 56; and that the defendant's bond having been in fact forfeited before the bankruptcy, not only might the plaintiff have proved against him for prior defaults, but might, as that very circumstance shewed, have applied to have the residue retained to abide the event of the contingency: that section 32 of the provincial statute was on this head quite different, and went farther than section 56 of the Imperial statute, which before the contingency only let in proof of contingent debts capable of valuation before the contingency happened; whereas our act admits contingent debts not capable of valuation in anticipation of the contingency, to be retained, if, as in the present case, they would become debts payable when the contingency happened, and proveable under the last clause of the Imperial statute: that the amount is ascertained on the face of the condition, both as to the money and the stock notes, and the whole might have been claimed and allowed in bankruptcy, by reason of the forfeiture of the bond, if not otherwise; and the defendant's plea therefore is good.

MACAULAY, C. J.-The provincial statute 7 Vic., ch. 10, sec. 35, enacted, first-That all debts due and payable by any bankrupt at the date of the commission against him may be proved and allowed against his estate. Second-And all debts then absolutely due, although not payable until afterwards, may be proved and allowed as if payable presently, with a discount or rebate of interest when no interest is payable by the contract until the time when the debt would become payable. Third-And all monies due by any bankrupt on any bottomry or respondentia bond, or on any policy of insurance, may be proved and allowed in case the contingency or loss should happen before the declaring of the first dividend, in like manner as if the same had happened before the date of the commission. Fourth-And in case the bankrupt shall be liable for any debt (first) in consequence of having made or endorsed any promissory note or bill of exchange, before the date of the commission; (second) or in consequence of the payment by any party to any bill or note of the whole or any part of the money secured thereby, (third) or of the payment of any sum of money by a surety of the bankrupt in any contract whatsoever, although such payment shall in either case be made after the date of the commission, provided it be made before the declaring of the first dividend, such debt shall be considered for all the purposes of this act as contracted at the time when such bill or note or other contract shall have been so made or endorsed, and may be proved and allowed as if the said debt had been due and payable by the bankrupt before the date of the commission. Fifth-And also any claim or demand by or in right of the wife of the bankrupt, founded on her contract of marriage with the bankrupt, and which is valid as against creditors, &c., or for or in relation to her separate property. Sixth-And all demands against the bankrupt for or on account of goods or chattels wrongfully obtained, taken or withheld, may be proved and allowed to the amount of the worth of the property; and no debt other than those above mentioned shall be proved or allowed against the estate of any bankrupt.

Section 59. Every bankrupt who shall appear and obtain a certificate, &c., shall be discharged from all debts due by him.