Paddleford v. State

Campbell, J., delivered the opinion of the court. An examination of the whole record of the grant of administration removes all uncertainty as to the bond. The perusal of the condition suggests no incurable uncertainty as to who is administrator. It recites that the “ above bound ” are administrator. Three persons were the “ above bound,” all of whom were administrator, according to the recital; but the extrinsic evidence shows that Davis was administrator, and the other persons were sureties on his bond as such. The bond was declared on, according to its legal effect, and was properly admitted in evidence. [121] The discharge in bankruptcy of Heard, and, as may be justly supposed, the settlement of his estate as a bankrupt, occurred before any breach of the bond on which he was surety. It is inconceivable how any claim or demand against his estate could have been proved by reason of his suretyship on the bond. It was an administrator’s bond executed on March 3, 1868. Heard petitioned to be adjudicated a bankrupt on March 24, 1868, and was discharged as such on Aug. 16,1869. No breach of the bond occurred until several years thereafter elapsed. Until a breach of the condition of the bond, what demand could have been made against the surety ? True, he had contracted to be liable on the bond for the faithful administration, by his principal, of the estate ; but unless some default should be made therein by his principal, he could never be required to pay anything. No default had been made, and it could not be assumed that any would occur. Was it admissible to calculate the chances of a breach of the bond, and fix the sum for which a claim might be proved against the bankrupt’s estate ? How would this calculation have been made ? And, if made, and the amount fixed and proved, and a dividend received, it might have resulted that no breach of the bond occurred, and that an allowance had been made and payment made for a liability which never happened. Under the Bankrupt Act of 1841, it was held that “ as long as it remained wholly uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract or engagement was not provable.” Riggin v. Magwire, 15 Wall. 549. Although the language of the Bankrupt Act of 1867 is somewhat different from that emp^ed in the act of 1841, it is true, under the act of 1867, that a discharge in bankruptcy has no effect on demands or liabilities which could not be proved against the estate of the bankrupt. That is the language of the law, “ A discharge . . . shall . . . release the bankrupt from all debts, claims, liabilities, and demands which were or might have been proved against his estate in bankruptcy.” Provability against his estate in bankruptcy, as a means of sharing in the assets, is the test of whether a claim was discharged by the discharge of the bank [122] rupt. We have assumed the impossibility of so proving any claim, liability or demand against Heard, by reason of his execution of the bond sued on, as to entitle any one asserting such claim to share in his estate as a bankrupt, and it follows that his liability on the bond for any breach of its condition, occurring after the settlement of his estate in bankruptcy, was not affected by his discharge. The engagement as surety existed at the time of his petition for adjudication as a bankrupt ; but for years after that it remained wholly uncertain whether this engagement would ever give rise to an actual liability, and no calculation could remove the uncertainty, or estimate the value in money of the possibility, that the engagement might ripen by time and events into an actual liability. Jacobson v. Horne, 52 Miss. 185; Loring v. Kendall, 1 Gray, 805 , French v. Morse, 2 Gray, 111; Woodard v. Herbert, 24 Maine, 358, and cases there cited; Eastman v. Hibbard, 54 N. H. 504; Greenville & Columbia Railroad Co. v. Maffett, 8 S. C. 807. In Jones v. Knox, 46 Ala. 53, and Reitz v. People, 72 Ill. 435, the contingency upon which the surety’s liability on the bond became fixed, occurred in time for a demand on account of this liability to be proved against his estate in bankruptcy, and the surety was held to have been discharged by his discharge as a bankrupt. McMinn v. Allen, 67 N. C. 131, presents the case of an adjudication as a bankrupt on the petition of the applicant filed several years after the commencement of the action for a breach of the bond sued on, and the discharge in bankruptcy was held to discharge the liability on the bond broken long before. Choate v. Quinichett, 12 Heisk. 427, is a case in which a surety on a replevin bond, conditioned for the forthcoming of property to abide the judgment of the court in an action of replevin, was held to be discharged by his discharge in bankruptcy, tlie adjudication and discharge both occurring pending the suit in which the bond was given and after its execution. We are not willing to follow this decision. In the absence of a decision by the Supreme Court of the United States as to the scope of the discharge in bankruptcy as affecting engagements of the bankrupt before his bankruptcy, such as we have under consideration, we adopt the views above expressed. Judgment affirmed. ■