All rent due is provable;1 and * the insolvency does not necessarily terminate the lease, unless it contain a provision to that effect, or the assignee declines assuming it. (I) try. Ex parte Young, in the matter of Slaney, 2 Rom, 40; Aflalo v. Fourdrinier,

6 Bing. 306; Wood v. Dodgson, 2 M. & S. 195 aayley, J., in delivering his opinion, said, with reference to this point. "The intention of the legislature, at the same time that they relieved the bankrupt, was to confer a benefit also on the surety, or person who was liable for the debt of the bankrupt. The principal creditor might have proved under the commission, or might have resorted to the surety without proving under the commission; therefore, before the act he might have compelled the surety to pay the whole amount without the surety s having any benefit under the commission. This clause, therefore, was intended to remove that inconvenience, and to give to the surety the power of obtaining a dividend in respect of his debt."The Supreme Court of the United States, in the construction of the similar section of the late National Bankrupt Law, unhesitatingly adopted the same view. Mr Justice McLean, delivering the opinion of the court, said - " Wells, as surety, was within this section, and might have proved his demand against the bankrupt. He had not paid the last note, but he was liable to pay it as surety, and that gave him a right to prove the claim under the fifth section. And the fourth section declares, that from all such demands the bankrupt shall be discharged. This is the whole case. It seems to be clear of doubt. The judgment of the State court is reversed. Mace v Wells,

7 How. 272. The judgment of the Supreme Court of Vermont in this case will be found, Wells v. Mace, 17 Vt. 503. The view of the later English cases, and of the Supreme Court of the United States, will be found adopted in Morse v. Hovey, 1 Sandf. Ch 187; Butcher v. Forman, 6 Hill, 583 , Crafts v. Mott, 4 Comst. 603, decided as late as 1851; Dunn v Sparks, 1 Carter (Ind.), 397; and recognized in Holbrook v. Foss, 27 Maine, 441; Pike v. McDonald, 32 id. 418; Leigh-ton v. Atkins, 35 id 118. These were cases where the foundation of the plaintiff's claim was payment of certain judgments recovered against the defendants and their sureties (of which number were the plaintiffs), after the discharge of the defendants, which judgments, therefore, were not provable in bankruptcy. The distinction taken by the court, admitting the authority of Mace v. Wells, etc , was, as laid down by Shepley, J., in one of the cases, that the contract upon which a judgment at law has been recovered, is merged in and extinguished by the judgment, which constitutes a new debt, having its first existence at the time of its recovery. So that where a judgment had been recovered on a promissory note (27 Me. 441), the note, by virtue of which it had been recovered, no longer continued to be a debt due from the defendant to the plaintiff. The judgment, not being a dent due from the defendant at the time when his petition was filed, could not have been proved in bankruptcy against him. Comfort v. Eeisen-beis, 11 Pa. 13. See further on this subject, Goddard v. Vanderhevden, 3 Wilson, 262, 2 W. Bl. 794 | Young" v. Hockley, 3 Wilson, 346; Taylor v. Mills, Co'wp 525,; Paul v. Jones, 1 T. R. 599, Snaith v. Gale, 7 id. 364; Frost '*, Carter, 1 Johns. Cas. 73; Buel v. Gordon, 6 Johns. 126; Lansing v. Prendergast, 9 id. 127; Mechanics and Farmers Bank, 3 Capron, 15 id. 467; Roosevelt v. Mark, 6 Johns. Ch 266; Selfridge v. Gill, 4 Mass. 95, Page v. Bussell, 2 ft. &S. 551, Welsh v Welsh,

4 id. 333 , Haddon v. Chambers, 1 Yeates, 529, Deacon on Bankruptcy, 285 et seq; Horn v. Nason, 23 Me 101; Craggin v. Bailey, id. 104; Farnham r. Oilman, 24 id. 250; Pollock v. Pratt, 2 Wash. C. C. 490. Cases of great instruction, establishing the right of the surety to prove his contingent claim, are Crafts v. Motts,

5 Barb. 305; Morse v Hovey, 1 Sandf. Ch. 187.

(l) McDougal v. Paton, 8 Taunt. 585; Ex parte Minet, 14 Ves. 189, Russell v. Doty, 4 Cowen, 576; Peters v. Newkirk,

6 id. 103; Hagard v. Raymond, 2 Johns. 478, Ex parte Descharms, 1 Atk. 103; Lansing v. Prendergast, 9 Johns. 127, and cases cited. In Stinemets v Ainslie, 4 Denio, 573, the facts were, that on the

1 Rent under a lease payable at stated times during the term, accrues from day to day, and if the lessee becomes bankrupt, only the portion accruing before bankruptcy is provable. Treadwell v. Marden, 123 Mass. 390; Ex parte Houghton, 1 Lowell, 554. This rule is now altered by statute in Massachusetts. See Bowditch v. Raymond, 146 Mass. 109.

* No claim which rests upon an illegal or immoral contract or consideration can be proved, (m)1 And the assignees may not only make any defence of this kind which the insolvent could, as usury, but, as we have already stated, those which he could not, on the ground that he could not rest his defence on his own fraud; for the assignees defend for the benefit of the creditors, who are not in fault, and the insolvent has no interest. It may be stated, as a general rule, that debts cannot be proved which spring from an implied promise only, and not from a transfer or sale of property or a similar consideration. Nor a claim for merely unliquidated damages, * except as provided by the statute; (n) for the amount should, generally at least, be ascertainable without the intervention of a jury, (o) And this brings us again to the great distinction between claims for tort and those founded on contract. As a general rule, as has been said, no claims for tort are ever provable. Certainly not those for bodily injury, as for assault and battery; nor for slander or libel But, as we go further, there seems to be some uncertainty. Thus, a claim sounding in contract, but recoverable only as damages; as that of one who had contracted to buy of another what that other failed to make title to, and by that failure gave the proposed buyer a claim for damages, which claim and action do not pass to the assignee. But while a vendee has generally no provable claim on his right of action for non-delivery, yet if he has paid the price, he has, it is said, a definite claim for so much money, which he may prove, (p)