the deponent to mention an incumbrance or other fact not inquired about will not estop him.1

§ 162. Examination as Evidence. The statute in England makes the deposition of the bankrupt, or any witness, evidence generally, and not merely as admissions, after the death of the deponent, which seems an anomalous and unreasonable rule.2 If it is to be evidence, the persons against whom it may possibly be used should be notified of the taking, and be permitted to cross-examine. Independently of statute, an examination is not to be used in evidence excepting against the deponent, or some one who has in fact attended and crossexamined the witness. If, however, the practice is to try a question upon affidavits, an ex parte deposition may, perhaps, be used as an affidavit, on due notice.1

§ 163. Commitment for not answering; 'Satisfactory Answers. Several successive statutes, in England, required the bankrupt or witness to answer to the "satisfaction" of the commissioners, which was construed to mean that the commissioners were to be satisfied as reasonable men, and subject to the revision of the courts, that the answers were true, and not merely that they were full and explicit. In default of giving such satisfaction, the bankrupt was committed. Thus,

1 Rolt v. White, 3 De G. J. & S. 360. 2 32 & 33 Vict., c. 71, § 108. See Reg. v. Erdheim, 3 Manson, 142. The act of 1849 (12 & 13 Vict., c. 106, § 242) made the depositions evidence of the petitioning creditor's debt, the trading, and the act of bankruptcy, which was well enough, as those were merel part of the bankruptcy itself. This is provided for, and always has been in this country, by refusing to let the status of bankruptcy be impeached, which is now the law of England, and renders the admission of ex parte depositions un

440; Ex parte Rees, De G. 205; Ex parte Dobson, 4 Dea. & Ch. 69; Ex parte Prescott, 1 M. D. & De G. 199; Ex parte Thorold, 3 M. D. & De G. 274.

5 Eden, Bankruptcy, 2d ed., p. 92. 6 See Rex v. Perrot, 2 Burr. 1122, 1215. In that case, after a long imprisonment of the bankrupt, a large sum of money of which he had given an unsatisfactory account was found in the bottom of a chair, and he was executed for the concealment. Per Ld. Kenyon, Ex parte Nowlan, 6 T. R. 118; see that case and s. c. (years after), 11 Ves. 511, 2 Rose, 401; Re Jones, 4 Dea. & Ch. 536; Ex parte Bradbury, 14 C. B. 15; Ex parte Lord, 16 M. & W. 462; Ex parte Legge, 22 L. J. Q. B. 345; Ex parte Oliver, 2 Ves. & B. 244; Ex parte Ex parte Chambers, 2 Mont. & A. Baxter, 7 B. & C. 673.

necessary.

3 Hamond v. Myers, 3 Atk. 415; Ex parte Campbell, 2 Rose, 51; Ex parte Coles, Buck, 242; Ex parte Coles, 3 Mad. 315.

indirectly, imprisonment for an indefinite period, often for years, was inflicted upon a bankrupt who was supposed to be, and often was, concealing assets; 1 but not by reason of the concealment, for no evidence was admissible from third persons for or against the probability of the truth of the answers.2 There are but few reported cases in which a mere witness has been imprisoned for not answering truly, though the statutes included witnesses. The English law of 1869 omits the word "satisfactory" or "satisfaction," and our statutes have no such expression. It has been intimated that a bankrupt under our law must answer to the satisfaction of the register; but this is more than doubtful.3 The court may imprison the bankrupt until he surrenders his property; but the examination is merely evidence for or against concealment, which should be found as a distinct fact upon all the evidence offered, and be made the foundation of an appropriate decree, and not confused with the examination. The rule in England, before the word "satisfaction" was called to the attention of the courts, was, that a full and explicit answer was all that could be required, the bankrupt being subject to whatever penalties the law prescribed, if he answered falsely. And this is the law in the United States.

1 See note 6, p. 122.

See

2 Re Goodwin, Mont. 304. Crowley's Case, 2 Swanst. 1, where the point is discussed, though not determined.

3 Re Salkey, 6 Biss. 269, Fed. Cas. No. 12,253; but see s. c., 6 Biss. 280, Fed. Cas. No. 12,254; Re Mooney, 15 N. B. R. 456, Fed. Cas. No. 9748.

4 Miller's Case, 2 Bl. 881; Pedley's Case, 1 Leach C. C. 365.

CHAPTER VIII.

PROOF OF DEBTS.

§ 164. Provable Debts. Successive statutes in England have continually enlarged the class of debts which may be proved in bankruptcy; but, until 1869, the courts of common law, with great perseverance, narrowed and limited the statutes by construction.

Our courts of common law have been more liberal; and we have always admitted to proof certain classes of debts, such as unliquidated damages, which required special legislation in England. Debt, said a learned judge, in Massachusetts, is a word of large import, which includes, in its popular sense, "all that is due to a man under any form of obligation or promise."

"1

§ 165. Debts payable in Future. - Debts absolutely due, but not payable until after the bankruptcy, are made provable by most of the statutes.2 The earliest of these was passed to meet some doubts, and purports to declare the law, rather than to change it. If any statute should omit to mention such debts, they would, probably, at the present day, be held admissible. Under the latest English statute, a covenant by the debtor that his executors or administrators should pay a certain sum after his death creates a provable debt.5

1 Per Hubbard, J., Gray v. Bennett, mention such debts, and Eaton v.

Upon debts of this character, if they do not run with interest, there must be a discount, or rebate, to bring them to a cash valuation as of the day when the proceedings were begun.1 The English practice is to make the allowance in computing the dividend; but our method is more direct and simple.

§ 166. Contingent Debts and Liabilities provable if secured by Bond, etc. - Debts whose amount was not fixed with certainty, because the liability would only become absolute, or would cease upon the happening of a future event, such as annuities for life, shared the fate of all unliquidated claims in England and were rejected. When, however, such a debt or liability was secured by a note, bill, bond, or judgment, which was due before the bankruptcy, the court would lay hold of the legal debt, and, under its cover, permit proof of the value of the true claim, if capable of valuation, not exceeding the amount of the legal debt. This is still the law, and may be useful in some cases to supplement imperfections of the statutes.3

This law is administered equitably, and if the real debt be one which is considered incapable of valuation, such as that of a bankrupt surety, when the principal is solvent and has made no default, the legal debt cannot be proved in bankruptcy or only as a claim to be liquidated if the contingency should happen before the estate is settled, unless the contract of the surety binds him to the creditor as a principal.1

§ 167. Contingent Debts and Liabilities continued; Possibility of Valuation. When the statutes attempted to admit to

1 Act of 1898, § 63 a (1), infra,

§ 526.

2 Ex parte Lecompte, 1 Atk. 251; Ex parte Belton, ib.; Perkins v. Kempland, 2 W. Bl. 1106; Wyllie v. Wilkes, Doug. 519; Toussaint v. Martinnant, 2 T. R. 100; Hodgson v. Bell, 7 T. R. 97; Ex parte Thistlewood, 19 Ves. 236, per Ld. Eldon; Baxter v. Nichols, 4 Taunt. 90; Collins v. Lightfoot, 5 B. & C. 581; Ex parte Rowlatt, 2 Rose, 416; Butcher v. Churchill, 14 Ves. 567, per Sir W. Grant; Ex parte Benecke, 2 Mont. & Ayr. 692.

8 Clinton v. Hart, 1 Johns. 375; Roosevelt v. Mark, 6 Johns. Ch. 266; Ex parte Griffiths, De G. 597; Moseley v. Ames, 5 Allen, 163.

Ex parte Thompson, 2 Dea. & Ch. 126; Thompson v. Thompson, 2 Bing. N. C. 168; Ex parte Marshall, 1 Mont. & Ayr. 118; Johnson v. Compton, 4 Sim. 37; Ex parte Marks, Dea. 133; Thompson v. Whatley, 16 Q. B. 189; Amott v. Holden, 18 Q. B. 593; White v. Corbett, 1 E. & E. 692; E. B. & E. 1103; Boyd v. Robins, 5 C. B. N. s.

597.

proof contingent demands, the courts for many years persisted in construing them in a very narrow spirit. Thus, when contingent debts were made provable, they took a distinction between a debt and a liability, which, however obvious it may be, is of no consequence, provided the demand becomes absolute before the close of the proceedings, or is capable of valuation. Then, when "liability" was introduced into a later statute, it was in this form, -"liability to pay money upon a contingency;" and the courts held that this did not include a liability for damages, or a liability to pay money which depended upon two or more contingencies. All this learned trifling has been swept away by the law of 1869 in England, and the courts have acquiesced.

In construing our statute of 1841, which admitted all contingent demands, some courts followed the early English precedents. "I am inclined to think," says a learned Chancellor, in referring to these decisions, "the old rule, based upon the words of the earlier statutes of bankruptcy, was allowed too much weight in giving reasons for the decisions under the act of 1841."2

Other courts, taking the broad words of the statute in their largest sense, held that all liabilities were discharged, whether there had been a breach or not, and although it was impossible to put any approximate value upon the liability.3

Still others adopted the test, which is now generally considered the true one, of the possibility of estimation or valuation; and this has been ratified by the Supreme Court. And this may be considered the test under all similar statutes. There is yet, however, a considerable difference of opinion as to the possibility of valuing any given contingency. This difficulty is met in the English statutes of 1869 and 1883 by giving the

1 Swain v. Barber, 29 Vt. 292; Dunn v. Sparks, 1 Ind. 397; Dole v. Warren, 32 Me. 94.

Jemison v. Blowers, 5 Barb. 686; Bates v. West, 19 Ill. 134.

4 Riggin v. Magwire, 15 Wall. 549;

2 Eberhardt v. Wood, 2 Tenn. Ch. Mace v. Wells, 7 How. 272. See Taylor 488, 495, per Cooper, C. v. Young, 3 B. & A. 521; Harding v.

& Shelton v. Pease, 10 Mo. 473; Smith, 11 Pick. 478; Woodard v.

Herbert, 24 Me. 358.