By the 19th section of the bankrupt act, the time of the adjudication of bankruptcy is fixed as the date with reference to which the provable character of the bankrupt’s liabilities are to be determined; liabilities which are not within the category of provable debts, as the act enumerates and describes them, are not chargeable upon the bankrupt’s estate, and are not discharged by his certificate.
In this case the plaintiff was adjudicated a bankrupt on his own petition. Before the filing of the petition an action of trespass against him for an assault and battery, brought by the respondent in this proceeding in the state court, had been tried and a verdict rendered in favor of the plaintiff, but a motion for a new trial was made by the defendant, and judgment was not entered upon the verdict until after adjudication in bankruptcy. The question, then, upon which the result of the present proceeding depends is. whether the amount of the verdict is a provable debt against the bankrupt. In England this was long a subject of contention, and the decisions of the English courts touching it are in direct conflict with each other. But in Ex parte Hill, 11 Ves. 646, where the question came before Lord Eldon, incidentally, he discussed most of the cases on both sides of it, and expressed strong doubt of the soundness of those which held that a verdict in an action for damages for a tort was a provable debt in bankruptcy, and in Ex parte Charles, 16 Ves. 250, where it was directly presented for decision, he ordered a commission in bankruptcy to be superseded, which was issued upon a creditor’s petition, whose debt consisted of a verdict for damages in an action of breach of promise of marriage rendered before the act of bankruptcy, and upon which judgment was entered before the allowance of the commission. At the same time he directed a case to be stated for the opinion of the judges of the king’s bench, who after full argument and deliberate consideration of the question, with all the eases bearing upon it. unanimously certified their opinion that the debt of the petitioning creditor was not sufficient in law to support the commission. Ex parte Charles, 14 East, 197. Since then the law has been settled accordingly in England.
The phraseology of the American act seems to have been employed with reference to the exposition of the English statute. All debts due or owing before the bankruptcy are provable under the British statute, but in the enumeration in the American act, this class of provable indebtedness is restricted to debts which are not only due, but payable at the time of the adjudication, or whose payment is postponed to a future day.
Now, a claim which has not obtained the condition of a fixed liability cannot be characterized as a debt due and payable, either presently or at a future day, and such is the immature character of a mere verdict before judgment. It is subject to the control and discretion of the court, and may be superseded altogether by arresting judgment upon it, or by the allowance of a new trial. No action could be maintained upon it; it does not bear interest, and no determinate character is impressed upon it until the court has pronounced its judgment, that the plaintiff do recover from the defendant the amount of it. The judgment establishes the indebtedness and impresses the obligation of payment, and so may be said to create the debt Not until it has passed is there a debt due and payable.
The respondent’s debt was not, therefore, in the category of debts provable against the bankrupt’s estate at the time of the adjudication, and so it was not necessary for him to apply to the bankruptcy court for leave to take judgment on the verdict, or to issue execution thereon; and the bill of review must be dismissed at the cost of the complainant.