The Mary J. Vaughan and The Telegraph. Adams v. The Ocean Queen (before Judge Shipman, November, 1866), where the commissioner, in assessing the amount of damages caused to the cargo of a vessel by a collision, took as the measure the price it would have brought at the port of destination, instead of the price paid at the port of shipment. This court held that the proper measure was the value of the property at the port of shipment, with interest at the rate of 6 per cent. per annum, from the time of the collision. The Circuit Court, on appeal (September, 1867), affirmed this decision. As the commissioner, in the present case, did not adopt, as the measure of damages, the value of the barley at the port of shipment, in the currency then and there prevalent, the first exception of the claimants to his report is allowed. The second, third, fourth, fifth, sixth, seventh and eighth exceptions of the claimants to his report necessarily fall with the allowance of their first exception, and no decision is necessary as to the points involved in those exceptions. They are neither allowed nor disallowed, but are ordered to be stricken from the record. The damages computed on the principles above set forth will amount to a certain number of dollars in the money of the United States, and the decree will be for that number of dollars. The case will stand the same as if the barley had been shipped from England, in which event the value of the barley there, in sterling money of Great Britain, converted into the coined money of the United States, at the commercial value of such sterling money at the time in such coined money, would be the legal measure of damages, the only difference in the present case being, that, as the currency prevalent in Canada is the coined money of the United States, it does not require to be converted into such coined money. The rule is the same as if the action were one for the breach of a contract to deliver the like quantity of barley at a foreign port, whether in England or in Canada, The Mary J. Vaughan and The Telegraph. or for the breach of a contract for the payment of money, made abroad and to be performed abroad, in a foreign currency. In a case of the latter description, this court has held that the proper rule of damages is the commercial value of the foreign money in the coined money of the United States, without any allowance for any premium on such coined money (The Blohm, 1 Benedict's Rep., 228). The fact that, under the Act of February 25th, 1863 (12 U. S. Stat. at Large, 345), the debtor can discharge a judgment entered for the amount of damages so ascertained by paying it in the United States notes or legal tender currency, without any allowance for any depreciation in the value of such currency or notes, cannot affect the question as to the proper measure of damages, or the proper mode of computing them. A debt contracted in the United States before such notes were made a legal tender, and payable in the United States, can be discharged by such notes, dollar for dollar, according to the tenor of the contract. Such is the law, and the privilege of so discharging any judgment which may be entered in this case for damages computed on the principles herein set forth, is one which the debtor is entitled to as an incident of the bringing of the suit in this forum. The creditor, if he comes into this jurisdiction to bring his suit, must accept the the right to sue with the incident. The ninth exception of the claimants must be allowed, as the proper rate of interest was six per cent. per annum, and not seven. An order must be entered disposing of the exceptions as above stated, and referring the case back to the commissioner to ascertain the damages on the principles above set forth, and report the same to the court. In the Matter of James D. Ray, a Bankrupt. DECEMBER, 1867. IN THE MATTER OF JAMES D. RAY, A BANKRUPT. STATUTE OF LIMITATIONS.-EXAMINATION OF BANKRUPT. A debt, to be barred by limitation so as not to be provable in Bankruptcy, as not not being “due and payable” according to the nineteenth section of the Bank. ruptcy Act, must be shown to be barred throughout the limits of the United States. Before a creditor can, under the twenty-sixth section of that Act, apply for an order to examine the bankrupt, he must prove his claim; but, under the twenty second section, a creditor who has tendered proof of a debt, which has not been allowed, may also apply for such examination. In this case, upon the day appointed by the register, on the application of Wheeler, Madden & Clemson, creditors, for the examination of the bankrupt and his wife and other witnesses, under section twenty-six of the Bankruptcy Act, the bankrupt objected to the examination, on the ground that the claim of those creditors was barred by the statute of limitations of the State of New York, and, in support of such objection, the bankrupt put in before the register an affidavit and plea, for the purpose of availing himself of the plea and defence of such statute. The facts were conceded by the creditors to be correctly set forth in the affidavit. The affidavit, which was made by the bankrupt, stated, that the claim of the creditors was filed with the assignee December 7th, 1867, the assignee having been appointed September 12th, 1867; that such claim was founded upon a note made by the bankrupt and another person, as copartners, dated at New York, May 1st, 1860, for $747.14, payable in eight months after date, and upon a balance of account against said copartnership amounting to $1,197.38, for merchandise purchased by it from said creditors prior In the Matter of James D. Ray, a Bankrupt. to October, 1860; that the debtors and the creditors were all of them citizens of, and all of them resided within, the State of New York at the time such indebtedness arose or was contracted, and have thence continued and now are citizens of, and residents within, said State; that the credit on said indebtedness expired, and the entire claim became due and payable, and so remained for more than six years before the filing of the original petition of the bankrupt herein; that any right or cause of action accruing thereon against said copartnership or said bankrupt, did not accrue within six years next before the filing of said petition; that, by reason thereof, the said claim is barred by the statute of limitations of the State of New York; that the said note was made and delivered at New York, and was payable there, and the said merchandise was purchased there, and the claim of said creditors was contracted there; that, by reason of said matters, the bankrupt took objection to all proceedings by said creditors or on their behalf in this matter, and made the affidavit and interposed the plea of said statute for the purpose of availing himself of such objection and of said statute as a defence and bar to said claim, or to its allowance as a claim, against his estate, and as a bar to the right of said creditors to have such examination; and that the bankrupt had in no way or manner waived said objection. On the foregoing facts, and on the request of the parties, the register certified to the District Judge, for his opinion thereon, the following question: Has a creditor who has proved his debt, but whose debt is barred by the statute of limitations of the State of New York, as set forth in said affidavit and plea, a right to examine the bankrupt, under section twenty-six of the Bankruptcy Act. BLATCHFORD, J. At the request of the parties, made through the register, the court consented to receive written briefs on the question certified in this case. A brief In the Matter of James D. Ray, a Bankrupt. has been furnished on the part of the bankrupt, but none on the part of the creditors. The questions discussed on the part of the bankrupt are, whether the bankrupt is estopped from availing himself of the statute of limitations by reason of his having set forth the claim of the creditors in the schedule of creditors annexed to his petition; whether the bar created by the statute of New York cannot operate as a complete bar to the debt, unless it be also shown that the debt would be barred in all the States of the Union; and whether, this being a proceeding for the relief of the debtor, and the discharge he petitions for being a matter of concession and favor, he cannot interpose a technical defence or objection, or one that does not go to the equities between the parties. It is argued, on the part of the bankrupt, that the placing by him of the debt upon the schedule to his petition is not a promise to pay the debt, or an admission of a willingness to pay it, or an admission that it is due, or an acknowledgment or recognition of its existence, or of an existing liability to pay it, from which a new promise may be inferred, the fact that the debt is named in a proceeding, the sole purpose of which is to obtain a discharge from all liability on the debt, being a circumstance calculated to repel the presumption of an intent or promise to pay the debt; that, under the facts in regard to this debt, the creditors cannot claim the benefit of the statute of limitations of any other State than New York; and that the right to a discharge on complying with the law is a legal right. The question certified is treated by the argument on the part of the bankrupt as identical with the question whether the claim in this case is provable under the Bankruptcy Act. The twenty-sixth section provides, that the court may, on the application of "any creditor," require the bankrupt to submit to an examination upon, among other things, all debts claimed from him, and all matters concerning his property and estate. The twenty-second |