Bankruptcy, Contingent claims. Surety. Contract, Implied: common counts. In an action to recover money paid by the plaintiff as surety on the defendant's bond given in another action to dissolve an attachment, the defence relied upon was the defendant's discharge in bankruptcy. It appeared that the defendant went into bankruptcy and was discharged between the bringing of the action on the bond and the recovery of judgment, and that the plaintiff had no notice or actual knowledge of the bankruptcy proceedings. Held, that at the time of the adjudication in bankruptcy the plaintiff's claim was a contingent one and as such was not provable under the bankruptcy act of 1898, and so was not discharged. Following Goding v. Roscenthal, 180 Mass. 43.
MORTON, J.
The plaintiff was surety on a bond given by the defendant to dissolve an attachment. Judgment was recovered against the defendant in the action in which the attachment was made, and was satisfied in part by the defendant. Afterwards an action was brought on the bond by the judgment creditor against the present plaintiff and the other surety. In the action thus brought judgment was rendered against the present plaintiff, and on demand he paid and satisfied the judgment. Between the bringing of the action on the bond and the recovery of judgment the present defendant went into bankruptcy and was discharged. He sets up that discharge in defence of the present action. We have stated what we regard as the essential facts omitting the others. The questions are whether the plaintiff's claim was provable in bankruptcy and if so whether it was duly scheduled, it being found that the plaintiff had no notice or actual knowledge of the bankruptcy proceedings.
If the claim was not provable in bankruptcy it is immaterial whether it was properly scheduled or not, and therefore the first question is whether it was provable. There are strong reasons why the claim should be held to be provable. But in Morgan v. Wordell, 178 Mass. 350, it was assumed that contingent claims were not provable under the present bankruptcy act. That assumption has been followed since, (Goding v. Roscenthal, 180 Mass. 43, Dunbar v. Dunbar, 180 Mass. 170,) and we are unable to distinguish this case from Goding v. Roscenthal, where a similar claim was held not to be provable. Therefore in accordance with the terms of the report the entry will be judgment on the verdict.
So ordered.