Gambar halaman
PDF
ePub

court of bankruptcy the power to declare any such liability to be incapable of valuation. In the absence of such a decision the liability is presumed to have been provable.1

§ 168. Bankrupt Drawer or Indorser. A very common case of a contingent debt deserves a moment's notice, by reason of certain decisions which have sometimes been misunderstood. Some of the English statutes declared that any one who had given credit to another upon a bill, note, or bond might prove against his estate. This was construed to permit proof against a drawer or indorser, even before the bill became due.2 But it must be understood that this did not necessarily mean that the creditor was to receive a dividend. It would be the duty of the assignees to have the proof expunged if the bill was paid at maturity by the person primarily liable; and, in the meantime, the dividend would be enjoined.3

By our practice, a creditor may make a "claim," in order to notify the assignees that he expects to have a debt; but he cannot make full proof against a drawer or indorser until the bill has been dishonored. The difference is only material in this that the contingent debt would not, with us, be a good petitioning creditor's debt.

§ 169. Future Rent. Rent to accrue in future, under a lease which is still operative, if called a debt, is one depending on contingencies which cannot be valued; and no statute admitting proof of contingent debts or liabilities has ever been construed to include it without a special provision to that effect.5

The existing English law makes the bankruptcy a surrender on the lessees' part, and requires the assignees to claim or dis

1 Hardy v. Fothergill, 13 App. Cas. 351. As to contingent debts under the act of 1898, see infra, § 526.

v. Caldwell, 127 Mass. 242; Re Commercial Bulletin Co., 2 Woods, 220, Fed. Cas. No. 3060; In re Bell, 85 Cal.

2 Starey v. Barns, 7 East, 435; Ex 119; In re Hevenor, 70 Hun, 56; Re parte Douthat, 4 B. & A. 67.

8 Sarratt v. Austin, 4 Taunt. 200. 4 Stowell v. Richardson, 3 Allen, 64. 5 Bosler v. Kuhn, 8 Watts & S. 183; Savory v. Stocking, 4 Cush. 607; Tread

well a Marden, 123 Mass. 390; Deane

Shotwell, 49 Minn. 170; Rodick v. Bunker, 84 Me. 441; Weinmann's Estate, 164 Pa. St. 405. [There is no provision in the act of 1898 for the proof of rent.]

claim the lease. If they disclaim, the damages may be estimated with sufficient certainty for the purposes of proof, by comparing the present rentable value of the estate with the agreed rent.1

It has been suggested that without the aid of a statute a form of lease might be made by which the term should be ended by the bankruptcy of the lessee, and the lessee's estate should be liable for damages.2 But a stipulation that the lessee shall remain liable on his covenants, and be credited with what the lessor may receive, will not have this effect.

It has been said that the covenants of a lessee who has parted with his lease before his bankruptcy to a person who remains solvent, do not give rise to a provable debt, because there are no means of valuing the chances of his assignee becoming insolvent, and the consequences which might follow.

§ 170. If Contingency happens before Close of Bankruptcy, the Debt may be proved. If a contingent liability of the bankrupt becomes an absolute debt before the estate is finally closed, it may be proved. What the contingency was, or how entirely impossible it might have been to value it beforehand, or how late in the settlement of the estate it becomes absolute, are immaterial, if it does become so while there are assets to divide. When that time arrives, though it should be forty years or more after the beginning of the proceedings, it will not be too late to make proof and share in future dividends.5

§ 171. Contingent Liability; What Liabilities can be valued If the creditor fears that the contingency will not happen before the estate is closed, he may apply to prove for the esti

1 Ex parte Llynvi Coal Co., L. R. 7 Ch. 28; Ex parte Blake, 11 Ch. D. 572. 2 See Ex parte Houghton, 1 Lowell, 554, Fed. Cas. No. 6725; Ex parte Llynvi Coal Co., L. R. 7 Ch. 28.

8 Ex parte Lake, 2 Lowell, 544, Fed. Cas. No. 7991; Bowditch v. Raymond, 146 Mass. 109.

4 Ex parte Waters, L. R. 8 Ch. 562, 568, per Mellish, L. J.; but see Hardy v. Fothergill, 13 App. Cas. 351.

Ex parte Grundy, Mont. & McA.

293; Ex parte Barwis, 6 D. M. & G. 762; Ex parte Boddam, 2 D. F. & J. 625; Adkins v. Farrington, 5 H. & N. 586; Ex parte Elmes, 33 L. J. Bky. 23; Ex parte Simpson, 3 Dea. & Ch. 792, 811, per Erskine, C. J.; Suppiger v. Gruaz, 137 Ill. 216; Locheimer v. Stewart, 91 Tenn. 385; Hussey v. Crawford, 152 Mass. 596. [Under the act of 1898 claims must be proved within a year after adjudication. § 57 n. See infra, § 520.]

mated present value of the debt, and then the question is, whether it is capable of valuation; if it is, it will be discharged, and, therefore, he should offer it if in any doubt. Opinions may differ upon the possibility of such a valuation, and the statute of 1869 in England makes the court of bankruptcy the final judge of the question. The following cases have passed into judgment:

Covenants and undertakings concerning a future event which may never happen, such as a covenant of warranty, or for quiet enjoyment in a conveyance of land, create no debt until an eviction; but a covenant of seisin, or against existing incumbrances, if broken at all, is broken at the time it is made and the damages are provable,2 and so a warranty of quality in the sale of a chattel.3

A liability to calls or assessments upon shares in a corporation or limited company, which will not be due unless the company becomes insolvent, is not a provable debt unless the insolvency occurs before the proceedings in bankruptcy are closed; but if that event has happened before the bankruptcy, or before it is too late for creditors to prove, the calls may be proved, and will be discharged.5

There is another class of private corporations in the United States, in which, by statute, the members are jointly and severally liable for the debts, if certain rules have not been observed. This liability has been construed by the courts not to be, in truth, a several liability in the full sense, but one which could be worked out only by a bill in equity for the

1 Bennett v. Bartlett, 6 Cush. 224; French v. Morse, 2 Gray, 111; Bush v. Cooper, 26 Miss. 599; Riggin v. Magwire, 15 Wall. 549, affirming s. c. 44 Mo. 512.

2 Williams v. Harkins, 15 N. B. R. 34; Parker v. Bradford, 45 Iowa, 311.

8 Merrill v. Schwartz, 68 Me. 514. 4 Re Moor, 1 De G. J. & S. 330; Betteley v. Stainsby, L. R. 2 C. P. 568; Financial Corp. v. Lawrence, L. R. 4 C. P. 731; Martin's P. A. Co. v. Morton, L. R. 3 Q. B. 306; Hastie's Case, L. R. 7 Eq. 3; L. R. 4 Ch. 274; Kellock v.

Enthoven, L. R. 8 Q. B. 458; L. R. 9 Q. B. 241; Furdoonjee's Case, 3 Ch. D. 264.

5 See Ex parte Nicholas, 2 De G. M. & G. 271; Chapple's Case, 5 De G. & Sm. 400; Greenshield's Case, ib. 599; Parbury's Case, 3 De G. F. & J. 80; Ex parte King, L. R. 3 Ch. 10; Ex parte Pickering, L. R. 4 Ch. 58; Ex parte Marshall, L. R. 7 Ch. 324; Mitchell's Case, L. R. 5 Ch. 400; Irons v. Manuf. Bank, 17 Fed. Rep. 308, 27 Fed. Rep. 591.

whole body of creditors against the whole body of shareholders, to ascertain and adjust all the debts and all the contributions. It follows logically, and has been decided, that the debts of such a company cannot be proved against the assets of a bankrupt shareholder until his share has been thus liquidated.1

If the bankrupt is a surety for future payments by a principal who remains solvent, or for the faithful performance of duty before a default, the courts have been unable to estimate the value of his possible future insolvency, and such debts are usually excluded.2 But if the principal is in default before the bankruptcy of the surety, the debt may be proved. There are cases, however, which hold that if the breach is unknown to a diligent creditor, he had no such provable debt against the estate of the surety as would be barred by the discharge.3

It has been held that recurring payments which are to be made or to cease upon the happening of a contingency which is likely to happen, but at a wholly uncertain time or times, cannot be valued. But an existing debt of this sort will be estimated at its full present value, if the contingency upon which the payments are to cease is very improbable, or involves the doing of something which is unlawful, such as the marrying a deceased wife's sister, or a wife's separating from her husband, or an apparently good title being defeated, etc. Indeed, it has been laid down as a general rule that the chance that a person will break his covenant, or will fail to do what he ought to do, is not to be taken into account, either to prevent a valuation

1 Kelton v. Phillips, 3 Met. 61; Bangs v. Lincoln, 10 Gray, 600; James v. Atlantic Works, 11 N. B. R. 390, Fed. Cas. No. 7179. See Davison v. Farmer, 6 Ex. 242.

2 Ex parte Thompson, 2 Dea. & Ch. 126; Thompson v. Thompson, 2 Bing. N. C. 168; Ex parte Marks, 3 Dea. 133; 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; Loring v. Kendall, 1 Gray, 305; Ex parte Waters, L. R. 8 Ch. 562, 568, per Mellish, L. J.; Paddle

ford v. State, 57 Miss. 118. Even in this case the debt is provable by the surety under the latest English statute. Re Herepath, 7 Morrell, 129.

3 See Ellis v. Ham, 28 Me. 385; Eberhard v. Wood, 2 Tenn. Ch. 488.

Parker v. Ince, 4 H. & N. 52; Ex parte Evans, 3 De G. & Sm. 561; Mudge v. Rowan, L. R. 3 Ex. 85; Brett v. Jackson, L. R. 4 C. P. 259.

5 Ex parte Davis, Mont. 297; Ex parte Naden, L. R. 9 Ch. 670; Ex parte Waters, L. R. 8 Ch. 562. See Re Allen, 10 Morrell, 84.

or to diminish its amount.1 Liabilities which involve either the payment, or the ceasing to pay, at the end of a life or any number of lives in being, can always be valued by the tables of actuaries.2

Under the very broad statute in England, above cited, it has been held that the chance of a widow's marrying again is not incapable of liquidation.3 "No doubt it is uncertain whether the appellant will marry again, just as the duration of any particular life is uncertain. But, though the duration of a particular life is uncertain, the expectation of life at a given age is reduced to a certainty when you have regard to a million lives. The value of the expectation of life is arrived at by an average deduced from practical experience. The intention of the act was to get rid of the difficulties which had arisen in former cases, in which very great hardship had been inflicted both upon creditors who were deprived of any share of the bankrupt's assets, and upon the bankrupt who remained liable to the creditor's claims." 4

A covenant by the assignee of a lease to indemnify his assignor against his covenant to repair is capable of valuation.5

§ 172. Alimony.-Alimony cannot be proved, because it is not a debt, but represents a continuing obligation of the husband. If considered a debt, it would be incapable of valuation, because it is subject to change from time to time by order of the court.6

§ 173. Surety; Proof by Surety when Principal is Bankrupt. The contingent liability of a principal to indemnify his surety not being a debt due to the surety until he has paid the creditor could not, under the earliest statutes, be proved by

1 Staines v. Planck, 8 T. R. 386, 389, per Ld. Kenyon. See Walcott v. Hall, 2 Bro. C. C. 305; Ex parte Jackson, 27 L. T. N. s. 696.

2 Ex parte Granger, 10 Ves. 348; Ex parte Tindal, 1 Dea. & Ch. 291; Re Tindal, 8 Bing. 402; Ex parte Sitger, Mont. 100; Ex parte Annandale, 2 Mont. & A. 19; Ex parte Parratt, 2 Mont. & A. 626; Ex parte Broadley, 2 M. D. & De

[blocks in formation]
« SebelumnyaLanjutkan »