BANK 
If the creditor, before he proves his debt, proceeds at 
law agaiiift' the bankrupt, he cannot be obliged to make 
his cledlion till a dividend is declared. And, where the 
creditor has already proceeded at law, he is not at liber¬ 
ty to come in and prove his debt under the commiflion, 
without relinquifhing his proceedings at law ; unlefs by 
order from the great feal, for the purpofe of affentirig to, 
or diffenting from, the certificate. 2 Black. Rep. 1317. But 
the modern determinations, fupporterl by fome of earlier 
date, have nioflly put the creditor to his election before a 
dividend, provided a reafonable time is afforded the cre¬ 
ditor to inform himfelf of the bankrupt’s affairs. Cooke B. 
L. c.6. The being chofen alTignee will not prevent the 
creditor filing the bankrupt at law, if he has not proved 
his debt; for in that cafe he can only be confidered as a 
creditor at large ; and, even if he has proved his debt and 
chofen himfelf allignee, he may (till eleft to proceed at 
law, and be difcharged as a creditor under the commiflion. 
1 Aik. 153, 221. But a petitioning creditor has not this 
eledlion. 
A debt made void by flatute, ought not to be permit¬ 
ted to be proved ; as a debt of anufurious contract; and, 
though the rule of the court of Chancery is, upon a bill 
to be relieved againft demands of ufurious interefl:, not to 
make void the whole debt, but to make the party pay 
what is really diie, yet, in a commiflion of bankruptcy, 
the aflignees have a right to infill that the whole is void, 
as an ufurious contract. And, unlefs the aflignees and 
creditors fubmit to pay what is really due, the lord chan¬ 
cellor has not power to order it; and applications of this 
nature have been frequently refufed. 2 Vcz. 4S9. 1 Aik, 
125. Dovgl. 716. 
If the bankrupt’s eflate is in arrear for taxes, the col- 
leflor, when he comes to prove the debt, mufl produce 
his authority, that the commilfioners may judge of the le¬ 
gality of it. Corporations ufually have a clerk or trea- 
furer, who is the perfon to prove debts due to them ; he 
nn 1 ft however produce his appointment under feal to the 
commi'flioners. Every fecurity that a creditor has for his 
debt, mufl be produced at the time of his proving, when 
the commiftioners will mark them as having been exhibi¬ 
ted. In the fame manner, any perfon adting for another, 
mufl produce his authority to the commiftioners, and they 
will mark them as exhibits. One inhabitant of a parifh 
may prove for himfelf and the other inhabitants. 1 Aik. 
hi. Cooke's B. L. c.4. 
In cafe of debts uncertain in point of liquidation, as be¬ 
tween two merchants in balancing accounts, the matter 
refts upon a claim to afcertain the fumthat was due at the 
time of the bankruptcy. So, where a creditor cannot af¬ 
certain his debt with certainty fufficient to enable him to 
fwear to it, or is not able in other refpedts fatisfadlorily to 
fubftantiate it; or where the agent of a creditor cannot 
produce his authority, and in many other cafes where there 
appears a probable foundation of a demand, though not 
fufficiently made out, it is ufual for the commiftioners to 
fuffer a claim to be entered ; but that will not entitle the 
party to a dividend, which he cannot receive without com¬ 
pletely proving his debt. If a claim is not fubftantiated 
in a reafonable time, the commiftioners may ftrike it out; 
and they generally do fo before a dividend is declared, un¬ 
lefs fufficient reafon is offered to them for prolonging the 
time ; but the creditor is notwithftanding afterwards at li¬ 
berty to prove his debt, and receive his fhare upon any 
future dividends. However in fuch cafes where there has 
not been grofs negleil, the chancellor Will make an order 
that fuch creditor fliall be paid his proportion of the firft 
dividend out of the money in the aflignees’ hands, upon 
condition that it does not break in upon any former divi¬ 
dend. 3 IVHf. 271. Aliens as well as denizens may come 
in as creditors; for all flatutes concerning.bankrupts ex¬ 
tend to aliens. 21 Jac. I. c. 19. 
The diftinflion of debts payable in futuro on a day cer¬ 
tain, and debts depending upon contingency, has given 
rife to frequent queftions, whether the bankrupt’s wife or 
Vol.IE No. 97. 
R U P T. 63a 
her truflees flionld be admitted to prove tire fum fettled 
on her by marriage-articles, under a commiffion againft 
her hufband. Lord Hardwicke, on a petition ex parte 
Winchefter, (1 Atk. 117. Dav. 535,) ftated'the diftinclibns 
of the feveral cafes. The firft head of thefe cafes is where 
a bond is given by a hufband to pay a fum of money in his 
life-time to truftees, to be laid out in truft for himfelf and 
his wife, or children; and in cafe the hufband furvives to' 
the life of himfelf. If in this cafe the hufband becomes 
a bankrupt, this being a debt due in his life-time, and 
before the bankruptcy, the court will let in the truftees to 
prove fuch debt, according to the trufts. 
The fecond head is, where a perfon gives a covenant to 
pay to truftees a fum of money for the benefit of the wife 
or children after his death ; and alfo a judgment by way 
of collateral fecurity to fuch covenant, and afterwards be¬ 
comes bankrupt; this, being a debt at law, may be.proved 
under the commiflion. 
The third is, where the father gives a bond to his in- 
te^ed fon-in-law on the marriage of his daughter, to pay 
a fum of money after his death, and interefl in the mean 
time on particular days and times, and'there is a breacii 
of the condition of the bond, and*-the father becomes 
bankrupt; this is a legal debt not depending on a contin¬ 
gency, aild therefore may be proved. 
The fourth head is, where a man covenants, in confide- 
ration of a marriage-portion paid him, for his heirs, exe¬ 
cutors, and adminiftrators, to pay to truftees a fum of mo¬ 
ney after his deceafe, in cafe his wife furvives him. This 
cafe, depending on a contingency, is materially different 
from the others; becaufe in thofe there was a remedy at 
law before the commiflion ifl'ued ; and it feems now to be. 
fettled, that, on a contingent provifion for a wife, flic can¬ 
not be admitted as a creditor. 3 IVilf. 271. P. IVms. 497. 
2 Ld. Raym. 1546. 7 Vin. 72. Dav. 254, 524. 1 Atk. 1 13. 
And this though it be particularly conditioned or provi¬ 
ded that fuch debt fhall be proveable. Cooke’s B. L, But, 
notwithftanding the general rule feems to be thus efta- 
bliflied, the cafe will be different, if the aflignees are obli¬ 
ged to come into equity to compel the performance of a 
truft; for then, as they require equity, they fliall be obli¬ 
ged to do equity, and fecure the fettlement to the wife. 
1 Atk. 114. 2 Fern. 662. 
Contingent debts are faid not to be included in flat. 7 
Geo. I. c.31, becaufe, it being uncertain whether they 
will ever become due or not, it is impofiible to make fuch 
abatement of 5I. per cent, as that a< 5 t direfls, and there¬ 
fore they cannot be within it; the principle therefore, that 
contingent creditors cannot be admitted to prove their 
debts, where the a£l of bankruptcy is prior to the hap¬ 
pening of the contingency, is clear and indifputable. 1 
Atk. 118. But many queftions have arifen as to what debts 
fliall be faid to be contingent within the meaning of tfle 
rule. 
One having only caufe of aflion cannot come in and 
prove it as a debt; becaufe the damages that may be gi¬ 
ven are confidered merely as contingent; even in cafe of 
a bond of indemnity, where the condition is broken. 3 
IVilf. 270. 2 Sira. 1160. And this though the lurety is 
called upon and liable to pay the debt, if it is not actual¬ 
ly paid. 1 Term. Rep. 599. So, if a leffee.ploughs up mea¬ 
dow ground, for which he is bound to pay the leffor a cer¬ 
tain fum of money as a penalty, that penalty cannot be 
proved as a debt under the commiflion: nor, if a man be 
bound in an obligation, in a certain fum, to perform cove¬ 
nants, and the obligor, before he becomes a bankrupt, 
breaks ihofe covenants, the obligee cannot prove this as a 
debt. If a bond by a principal and furety has not been 
forfeited before the furety became bankrupt, the debt 
cannot be proved under his commiflion, but he may be 
fued upon it notwithftanding his certificate. Doug. 135. 3 
WUf. 270. The bankruptcy of the leffee is no bar to an 
afilion on covenant (made before his bankruptcy) brought 
againft him for rent due after the bankruptcy . 4 Term Rep. 
94. But, when judgment is obtained in any aftion, it then 
% N ’ become* 
