(p) Utterson p. Vernon, 3 T. R 539; Parker v. Norton, 6 id. 695, are cases of this class. There seems no inconsistency in these classes of cases. The same principle governs both. If the claim sounds merely in damages, it cannot be proved; for damages, strictly speaking, are for the jury to determine. But if, though nominally sounding in damages, as is the allegation in every ordinary action of assumpsit, the claim be in substance for a distinct and liquidated sum, it may be proved in bankruptcy. Ashhurtt, jt in them * before the same point of time. If, on the one hand, a debtor to the bankrupt, who became his debtor after a certain moment, must pay to him, and not to the assignee; so, on the other, one becoming his creditor after the same time must look to him for payment, and not to the assignee.

* The claim must rest on a valuable consideration. For the assignee may defend against a merely good consideration, although the insolvent himself might not (q) Of course the assignee may defeat any claim which the insolvent himself might, as where it is barred by a statute of limitation or the statute of frauds, or the like, (r) A debt created by a fraud against an innocent creditor may be proved by him. (rr) The question of time also comes in here. For no debt is provable against the funds, - that is, against the creditors, - which did not accrue before the bankruptcy. The reason of the case is obviously this. Up to a certain point of time all the property previously coming to the insolvent, and all the debts previously due to him pass to the assignee, for the benefit of certain creditors; and these must be creditors whose claims against the insolvent accrued to delivering his opinion in Hammond v. Toulmin, said: "I have always under stood that when the plaintiff's demand rested in damages, and could not be ascertained without the intervention of a jury, it could not he proved under the defendant's commission; now here was no precise sum due to the plaintiffs at the time of the defendant's bankruptcy,"' Such was the view of the Court of Appeals in New York in a recent case, where it was held that a claim for liquidated damages for the breach of an agreement might be proved in bankruptcy. Boyd v. Vanderkemp, 1 Barb. Ch. 274. And, on the same principle, a claim against a common carrier for goods lost. Campbell v. Perkins, 4 Seld. 430. As to the effect of a judgment recovered for a tort previously to the bankruptcy, see infra.

(q) Gardiner ». Shannon, 2 Sch. & L. 228. Gardiner, in 1799, entered into copartnership with H., and, previous to the execution of the partnership articles, executed to the defendant a bond in .£1,000. conditioned to pay .€500 on a day since passed. A deed of the same date was executed between Gardiner and Shannon, reciting the marriage of Gardiner, and that he had made no settlement on his wife previous to the marriage; also reciting the bond, and that Gardiner was about to enter into said copartnership -declaring the trust of the bond to be that the wife should receive the interest of the said sum of £500 from the death, failure in trade, or bankruptcy of Gar liner, and that in such case she should have power of appointment, etc. A commission in bankruptcy soon issued against Gardiner and H., under which defendant proved the bond; a dividend was ordered, but the order for payment being resisted by the partnership creditors, a hill was filed impeaching the bond as voluntary, and the Lord Chancellor (RedesdaJe) said. "This is a mere voluntary bond, an act which the bankrupt was not under an obligation to do; and when a man does such an act, it must be taken to have been done in order to deprive his creditors of the remedy they would otherwise have against his effects. . . . Suppose that Gardiner, instead of becoming a trader had died, could his executors have paid this as against his creditors? Though it might be recovered at law, it would be postponed in equity as a voluntary bond. [See Jones r. Powell, 1 Eq. Cas. Abr. 84; Lechmere v. Carlisle, 3 p. Wms. 222; The Lady Cox's case, id. 341.] The proper order to make, in case of a voluntary bond, is not to expunge it, bat that it shall not be set against the creditors; but if there be a surplus after payment of all joint and separate debts, the party shall be allowed to come in."

(r) Ex parte Dewdney, 15 Ves. 479, Ex parte Seaman, id.; Ex parte Roffey, 2 Rose, 245. It has been held, under the present law, that a debt may be proved unless barred by the statute of limitations through the United States; the statute of the bankrupt's domicil not, of itself, preventing the probate Ex parte Bay, South D New York, 16 Am. Law Reg 283. We doubt this and prefer the cases which hold an opposite view; as Ex parte Harden, Maine, 1 Bank. Reg. 97; Ex parte Kingsley, Massachusetts, 1 Bank. Reg. 66; Ex parte Shepard, South. D. New York, 1 Bank Reg. 115.

(rr) Ex parte Comstock, 22 Vt. 642; Ex parte Rundle, South. I). New York, 2 Bank. Reg. 49; Stokes v. Mason, 10 R I. 261.

To put all the creditors on an equality, interest should be cast to the time of the decree, on all debts due from the insolvent and payable before that time, and discounted from all those payable at a later period. If a debt is payable on demand, and only on demand, - as by a note on demand, for example, - the insolvency itself acts as a demand to sustain the claim; but if there had been no previous demand, interest would not generally be allowed. After the amounts are made up to * the time of the decree, interest is cast on none; for if it were cast on all, it would come to the same thing. If any creditors hold security, the statute provides for their surrendering it to the assignees if they please; or retaining it and not proving their debts; or realizing it; or having it valued, and thus ascertaining the balance of debt due to them, and proving that, (s)1

(s) Section 20. In the matter of Grant, 5 Law Rep. 303, this point came before Story, J., under the statute of 1841. The American Bank held certain collateral securities, which they desired to apply to the amount of their debt, so far as they would go, and prove against Grant's estate for the balance. The court said "What is to be done in cases where a creditor who proves a debt holds collateral security therefor? Are these securities in all cases to be' sold, and the creditor to be permitted to prove for the residue of his debts? Or may the creditor, under the direction and sanction of the court, be permitted to take the securities at their true value, that value being ascertained under the direction of the court, and to prove for the residue of his debt? Upon these questions I do not profess to feel any real difficulty. . . . There can be no doubt that a creditor, holding securities, is enabled to prove his debt upon his offer to surrender, and actually surrendering, those securities to be disposed of according to the order and direction of the court; and that he is entitled to prove his debt, deducting the true value of the securities therefrom, that true value, when ascertained, being paid or applied by the court for the exclusive benefit of such creditor. How, then, is such value to be ascertained by the court? Must it be ascertained by a sale of the securities by the court in all cases? Or may it be ascertained by an appraisement, or by allowing the creditor to take the same at the nominal value, or in any other manner which the court may deem for the true interest and benefit of all concerned in the estate, if there be no objection by the bankrupt, or any of the other creditors, or any other party in interest; or, in case of objection, if. upon full notice and hearing of all parties, the court, in the exercise of a sound discretion, deem the one or the other course most for the benefit of all concerned in the estate? "It was held, that the court might, in the exercise of a sound discretion, adopt either of these courses; and, at all events, that the full value of the securities shall be secured to the creditor.