
    Jacobson, Wolffe & Co. vs. T. M. Horne.
    1. Sttrettship : Indemnity. Bankruptcy. Oase in judgment.
    
    In 1871 H. claimed a lot of corn, attached as the property of M., and gave bond, with J., "W. & Co. as sureties, and, to indemnify his sureties, placed the corn in their possession to hold until the litigation terminated. In May, 1872, J., "W. & Oo. were adjudged bankrupts, and in December, 1872, they were discharged. In May, 1873, the attachment suit was dismissed. J., W. & Oo., on demand by H., refused to account for the corn. Held, that the claim for the corn or its value was not provable under the bankrupt law, and was therefore not discharged by the discharge of J., "W. & Oo. in bankruptcy. The existence of the claim was contingent on an event which did not occur until after the discharge in bankruptcy.
    Eeeoe to the Circuit Court of Lauderdale County..
    Hon. Robeet LeachmaN, Judge.
    The opinion of the court contains a statement of the case sufficient for a full understanding of the principles announced.
    It is assigned for error
    1. The court erred in sustaining- the demurrer of plaintiff,. T. M. Horne, to the second plea of defendants, Jacobson, Wolffe & Co.
    2. In rendering judgment in favor of plaintiff, Horne, against-defendants.
    
      J. J. Shannon, for plaintiffs in error:
    The liability of Jacobson, Wolffe & Co. was contingent. The' demurrer should have been overruled. See Chapman v. Forsyth, 2 How., 87; Cronan v. Cotton, 104 Mass., 245 ; Jonés v. Knox, 46 Ala., 483; Bates v. West, 19 Ill., 134; Bailey v. Moore, 21 Ill., 165; Morse v. Hovey, 1 Sandf.. (N. Y.), 187; Crafts v. Mott, 5 Barb., 305; Matterson v. Kellogg, 15 Ill., 547; Phillips v. Bussell, 42 Me., 360;. Bissell v. Cochrane, 15 Ohio, 58; Grover v. Clinton, 8 B. B., 312; Heffrew v. Joyne, 39 Ind., 463; Stevens v. Brown, 49-Miss., 597.
    
      Jolin W. Tewell, for defendant in error:
    1. The bankrupt act of 1867 has no such limit as that contained in the act of 1841. Lemake v. Boothe, 47 Mo., 47 ; 4 Am. B., 326. The language of the act of 1867 is very broad. See Jones v. Bussell, 44 Ga., 460; Hefferu v. Jayne, 39' Ind., 463.
    2. The debt of defendant in error was not provable in-bankruptcy. The corn was deposited on March 7,1871. The bankrupts were discharged December 10, 1872. The attachment was dismissed in 1873 ; the liability then accrued. The demurrer to the plea was the proper form of reaching the' question. See Hefferno. Jayne, 13 Am. B., 281. The plea, was not good. Sordon v. Galewood, 1 Ind., 107.; Sackett v.. Andrews, 5 Hill (N. Y.), 327 ; Maple v. Burnside, 1 Deuio,. 332; Byrens v. Newcomb, 1 Ind., 98.
   Cahpbell, J.,

delivered the opinion of the court.

In 1871 Horne interposed his claim to some corn which had been seized tinder attachment against one Mason, and, in order to induce plaintiffs in error to become'sureties on his bond for the trial of the right of property, Horne promised them, if' they would become such sureties, to place in their hands said, corn when it should be delivered to him, upon the approval by the officer of such bond. The bond was given, with plaintiffs in error as sureties, and the corn was delivered to-Horne, and by him, under the agreement aforesaid, placed in the hands of plaintiffs in error, who, by said agreement, were to hold the corn for their indemnity against loss by reason of' said suretyship until they should be released from all liability on said bond, and then they were to account to Horne for it. In May, 1872, plaintiffs in error were adjudicated bankrupts,, and in December, 1872, they- were discharged as such. In May, 1873, the attachment was dismissed and plaintiffs in error were released from all liability on said bond, and Horne' afterwards called on plaintiffs.in error to account for the corn he had delivered to them as aforesaid, and they refused to-account for it, and he sued them in assumpsit to recover-$398.25, the alleged value of the corn. They pleaded the general issue and their'discharge in bankruptcy. The 'amended declaration sets forth the above stated facts' in detail. The-plaintiff demurred to the plea of discharge in bankruptcy,, and the demurrer was sustained, and, defendants declining to-plead over, trial was had on the general issue and judgment: was given for plaintiff, and defendants below presented a writ, of error.

Under the system of pleading established in this state we-are not prepared to say that it is not admissible for plaintiff to set forth in his declaration all of the facts and special circumstances constituting his cause of action one which is not. discharged by the discharge in bankruptcy of the defendants, and to meet the plea of discharge in bankruptcy by demurrer, but we have no hesitation in declaring our view to be that the better mode of declaring in such cases is .as if there was no anticipation of a plea of discharge in bankruptcy, and for plaintiff to reply to snob plea tbe facts on wbicb be relies to avoid its effect. Where tbe former mode is adopted tbe plaintiff should be held to tbe proof of. every material fact averred in bis ■declaration, if defendant traverses it.

Pretermitting an expression of opinion on whether tbe debt •described in tbe declaration in this case was created by plaintiffs in error “while acting in any fiduciary character,”, we hold that it was not provable under tbe bankrupt law, and, •-therefore, was not discharged by the discharge in bankruptcy •of plaintiffs in error. Its existence was contingent on an event which did not occur until after the-discharge in bankruptcy of the debtors. Horne had no claim on them of any sort for the ■corn or its value until after they had been released from liability as sureties on his bond. Until then it was uncertain, ■and could not be determined, whether or not he would ever have any claim or demand against them under the contract •about the corn. It was held without liability until the release ■of the bailees of it from the claimant’s bond, and that did not •occur until some time after the discharge in bankruptcy.

The evidence on trial of the case, under the general issue not being contained in the record, we must assume that plaintiff -below established all the facts averred in his declaration; ■and as they show a debt which could not be proved in bankruptcy, and which, therefore, was not affected by the discharge, ■of defendants below as bankrupts, we affirm the judgment.  