Tobias v. Rogers

Edmonds, J.: The condition of these parties was that of principal and surety as to- one-half of what each might pay on the obligation which they had jointly incurred. They were jointly bound as principals to a third person, but, as between themselves, the relation of principal and surety existed as to any amount which either might pay over and above his share. It is, in that respect, .like the case of Craft v. Mott (5 Barb. 305). The parties to that suit were jointly bound to Johnson, but, by an arrangement between themselves, Mott was bound to pay the debt primarily, and Craft was his surety. Under that state of things, Craft having paid the debt, it was held that his claim against Mott was barred by the discharge in bankruptcy, because it was provable as a contingent demand. [170] I can see no difference in principle between that case and the one now before me. The distinction attempted to be drawn on the argument was, that in the case of Craft v. Mott, the amount of liability was capable of liquidation—that its value could be ascertained and proved under the proceedings in bankruptcy, while in this case it could not be, as it depended on the facts whether a return in the replevin would be awarded, and, if awarded, whether the goods, in whole or in part, would or would not be returned. Aside from the fact that, in the case of Craft v. Mott, the uncertainty as to amount was kindred to that in this case, as it might have been affected by the sum which the land mortgaged might have brought on foreclosure, the case of Jamison v. Blowers (5 Barb. R. 686), is decisive as to this objection, and, indeed, as to every consideration growing out of the objection here set up to the discharge. Here, as in that case, there was an obligation which might ripen into a demand which might be enforced m presentí. When it had thus ripened, the creditor might receive his dividend upon it, and until it thus ripened it might be proved, and be provided for, under the bankrupt law. Those two cases, it seems to me, are decisive of this case. • So far as the first ground of demurrer is concerned, it must be overruled. The second ground of demurrer must also be overruled. The averment as to notice of the commencement of the suit is material as to the recovery of the costs of that suit, and is therefore properly made. The third ground of demurrer, however, is well taken. The rule as to giving color is the same now that it always was, and the averment demurred to in this respect is defective. Judgment accordingly. [This ruling was affirmed on appeal at the General Term, and, finally, in the Court of Appeals. See 13 New York Reports, 59.]