( j) The distinction on this subject is well settled in England between subsisting debts, which are payable on a contingency, and contingent liabilities, which may never become debts; and it is held, that the former only can be proved under a commission in bankruptcy. In Ex parte Marshall, 3 Deacon & Ch. 120, Erskine, C. J., said: "In my judgment, in Ex parte Myers (cited below), I have not sufficiently marked the distinction between contingent liabilities which may never become debts, and contingent debts that may never become payable. Upon the fullest consideration of all the reported decisions, I am satisfied that claims under the first class, upon which no debt has arisen until after the bankruptcy, cannot be proved under the 56th section; but that all claims falling within the latter class, that are either capable of valuation before the contingency happens, or have become payable by the Happening of the contingency after the bankruptcy and before proof is tendered, may be admitted." The case of Ex parte Thompson, 2 Deacon & Ch. 126, 1 Mont. & B. 219, is an example of the first class. Here there was no debt due from any one till after the bankruptcy. Ex parte Mvers, 2 Deacon

& Ch. 251, 1 Mont. & B. 229, is an example of the last class. In this case a debt had been clearly contracted with the holders of the bills before the bankruptcy, for a specific sum, which the bankrupt had engaged to pay, unless he before the expiration of the contract. Ex parte Pollard, 2 Lowell, 411. See also Mooney v. Detrick, 85 Cal. 549. - K.

1 Wolf v. Stix, 99 U. S. 1, decided that a replevin bond, given for the value of goods alleged to have been conveyed to the obligor in fraud of his grantor's creditor* can be proved as a contingent debt against the obligor's estate, if the petition in bankruptcy was filed after the execution of the bond, though before the obligor's liability was determined. - K.

Thus, a surety, or an indorser for the bankrupt, * on a debt or note not due, will undoubtedly be called upon, as the insolvency of the principal is the very circumstance to render him liable; nor would a surety who had another surety before him, or a second or third indorser, be prevented from guarding against the contingency of his liability, by proving his claims, (k)l should be released from his obligation by the drawer taking up the bills. In Ex parte Tindal, 1 Deacon & Ch. 291, a bank-rapt had covenanted by marriage settlement that his heirs, etc., should, after his decease, pay £4,000 to trustees upon trust, to pay the interest to his intended wife for her life; and, after her death, then to pay the principal sum to the children of the marriage; and, if no children, to the wife, if she survived her husband; but, if not, then to the executors of the husband. Proof of this in bankruptcy was rejected by the commissioners as no debt, but a contingent liability, which might become one. Sir Launcelot Shad well reversed the decision, 1 Mont. & M. 415. Lord Lyndhurst reversed his decision, on appeal. Id. 422. Lord Brougham, assisted by Tindal, C. J., and Little dale, J., reversed his decision, on a rehearing; and held, that this covenant constituted a debt, contracted by the bankrupt, payable on a contingency, and capable of valuation, and therefore provable. Utterson v. Vernon, 4 T. R. 570. The following capes set forth the same distinction, and what debts are provable under the head of contingent claims Abbott v. Hicks, 5 Bing. N. C. 578; Hinton v. Acraman, 2 C. B. 367; Ex parte Harrison, 3 Mont. D. & De G. 350; Ex parte Marshall, 2 Deacon & Ch. 589; s. c. 1 Mont. & B. 242; Ex parte Tindal, 1 Moore & S. 607, Mont. 375, 462, 8 Bing. 402; Atwood v Partridge, 12 J. B. Moore, 431, 4 Bing. 209; Boorman v. Nash, 9 B. & C. 145; Green v. Bicknell, 8 A. & E. 701; Ex parte Lancaster Canal Co. Mont. 27; Ex parte Fairlie, id. 17; Ex parte Myers, Mont. & B. 229, 2 Deacon & Ch. 251'; Abbott v. Hicks, 7 Scott, 715; Hope r. Booth, 1 B. & Ad. 498; Ex parte Simpson, 1 Mont. & A. 541; 2 Deacon & Ch. 792; Woodard v. Herbert, 24 Maine, 358; Hancock v. Entwisle, 3 T. R. 435. So, when the debt is due, but may be defeated on the happening of any given event, it may still be proved, liable to a withholding of the dividend, unless the contingency occur. Staines v. Plank, 8 T. R. 389;' Yallop v. Ebers, 1 B. & Ad. 698; Filbey v. Lawford, 4 Scott, N. R. 206; Ex parte Eyre, 1 Phillips, 227; Lane v. Burghart, 1 Q. B. 933, 1 Gale & IX 311; Lane v. Bnrghart, 4 Scott, N. R. 287, 3 Man. & G. 597: Ex parte Little-John, 3 Mont. D. & De G. 182; Ex parte Hope, id. 720; Taylor r. Young, 3 B. & Ald 521; Ex parte Hooper, 3 Deacon & Ch. 655; Ex parte Turpin, 1 id. 120; Lvde v. Mynn, 1 Mylne & K. 683; In re Willis, 19 Law J. Exch. 30; In re Foster, 19 Law J. C. P. 274. See 1 Cooke's Bankrupt Law, 190; Owen on Bankruptcy, 179; Stat. 12 & 13 Vict. c. 106, §§ 77, 78; Act of Congress, 1841, § 5; Roosevelt v. Mark, 6 Johns. Ch. 266.

(k) See section 88, in note (A). The question has been frequently before the English courts. Van Sandau r. Corsbie, 3 B. & Ald. 13; Younge v Tavlor, 2 J. B. Moore, 326, 8 Taunt. 315. It is said in 1 Cooke's Bankrupt Law, 210, that "the surety is held to have an equitable right to stand in the place of the original creditor, and receive dividends upon his proof." Er parte Findon, Cooke, 170; Ex parte Brown, id. (cited in Owen on Bankruptcy, 180); Tonssaint v. Mar-tinnant, 2 T. R. 100; Martin v. Breck-nell. 2 M. & S. 39. It seems that in England, prior to the Statute of 49 Geo. 111 c. 121, § 8, the surety had no power to come in and prove his claim against the estate of his bankrupt principal, unless he had himself been called on to pay the debt before the bankruptcy. See Cooke's Bankrupt Law, above cited, and passim; Eden on Bankruptcy, 158, 177, and the cases cited above, of an earlier date than 1808. But the provision then enacted has been continued, with more or less of modification, to the present day, and may be considered part of the common law of bankruptcy in this coun1 The contingent liability of a surety on a guardian's bond is provable against him in bankruptcy proceedings, and his discharge releases him. Davis v. McCurdy, 50 Wis. 569; Reitz v. People, 72 111. 435. But it was stated in Ecker v. Bohn, 45 Md. 278, that a surety had no claim before he had paid the debt. See also Hussey v. Crawford, 152 Mass. 596; Rand v. King, 31 Northeastern Rep. 650 (Mass.). - K.