The form of the action is decisive. The damages here are as uncertain as in any species of trespass, and cannot be assigned over by the commissioners. Matters of ■ mere tort were not contemplated by the legislature when they enacted the bankrupt law. The assignees might, if they had thought proper, have brought assumpsit, and then the defendant would have had the benefit of a set-off; but, the suit in its present form, cannot be supported.

Judgment for the defendant.