
    Leader et al. v. Mattingly.
    
      Action to recover Damages for Breach of Indemnity Bond.
    
    1. Action upon indemnity bond; ex contractu. — A complaint in which the plaintiff claims damages for the breach of an indemnity bond, and there is set out therein the substance of the condition of said bond and the circumstances under which it was issued, and there is averred therein a recovery of judgment. against the plaintiff and levy for the execution against which the plaintiff was indemnified, and it was averred that he was compelled to pay said judgment, the amount which he seeks to recover as damages for the breach of said bond constitutes a debt, and the action is an action ex contractu.
    
    2. Bankruptcy lato; what claims provable thereunder. — Under the act of bankruptcy of Congress, there are no provisions made for proving contingent liabilities against a bankrupt estate, and, therefore, debts to be. provable against such estate must be in existence when the petition in bankruptcy is filed; and claims against a bankrupt which are not provable as allowed by the act are not affected by his discharge in bankruptcy.
    3. Indemnity bond; discharge of principal in bankruptcy does not affect sureties. — A discharge in bankruptcy of the principal in an indemnity bond, from liability on such bond, does not have the effect to discharge and release the sureties upon said bond from any damages arising from the breach thereof.
    4. Pleading and practice; right to file plea during trial discretionary with court. — The right of a defendant in a civil suit to file a plea during the progress of the trial and after evidence has been introduced, is addressed to the discretion of the trial court which is not reviewable on appeal.
    
      Appeal from tbe City Court of Bessemer.
    Tried before tbe Hon. B. C. Jones.
    This action was brought by tbe appellee, J. L. Mat-tingly, against tbe appellants, and sought to recover $99.01, as tbe breach of tbe condition of an indemnity bond, which was executed by tbe defendant A. S. Leader as principal, and the other defendants, as sureties.
    The complaint, as originally filed, contained one count and it was averred therein that tbe indemnity bond sued on was executed March 4, 1901, by the defendants, was payable to tbe plaintiff and conditioned that inasmuch as an execution in favor of said A. S. Leader bad been issued out of tbe justice of tbe peace court and bad been placed in tbe bands of tbe plaintiff as constable, and that said Leader bad directed tbe plaintiff: to levy said execution upon one bay mare as tbe property of Rueben Winn, tbe defendant in execution, and that as there was some doubt as to whether tbe property belonged to said Reuben Winn, that tbe defendant should hold the said Mattingly harmless in making said levy, and should indemnify and pay him all damages and costs, be might incur, and pay all damages which might be rendered against him for levying said execution upon said property.
    It was then averred in the complaint that after tbe execution of said bond and indemnity, the plaintiff levied tbe execution upon said property and one Lula Winn recovered a judgment, together with costs on March 17, 1902, against him amounting to $99.01, which said judgment the plaintiff was forced to pay, and was, therefore damaged to such extent.
    The complaint as originally filed did not state the amount of the judgment and-costs recovered and was amended so as to state said amount. To the complaint, as originally filed, and as amended, the defendants demurred upon the ground that there was joined therein a cause of action ex delicto with a cause of action ex' con-tractu. This demurrer was overruled. Thereupon the defendant, A. S. Leader, filed a snecial plea in which he set up that prior to the institution of the present suit the said A. S. Leader had filed his petition in the district court of the United. States asking to be declared bankrupt, and that prior to the institution of the present cause of action, the petition of the plaintiff was granted by order of the district court of the United States and the said A. S. Leader was declared a bankrupt and was discharged from all debts and claims which were made payable by "the bankrupt act of the United States against said Leader’s estate; that the said Leader’s petition was filed in the bankrupt court on January 24,1902, and that the plaintiff’s said cause of action was provable under the bankrupt act and existed on said 24th day of January, 1902. The other defendants who were sureties, separately filed several special pleas, in which they set up the fact that A. S. Leader, who was the principal on the indemnity bond sued on, had been, by regular proceedings instituted prior to the bringing of the present suit, adjudged and declared a bankrupt and discharged from all debts and liabilities, and that the Claim of said plaintiff and said indemnity bond was proven under the bankruptcy law, and that, therefore, the principal upon said bond having been declared a bankrupt and discharged from all debts and liabilities, including the present claim sued upon, his sureties on said bond were discharged.
    To each of the special pleas filed by A. S. Leader as principal on said indemnity bond and each of the sureties thereon, respectively, the plaintiff demurred upon the following grounds: 1. During the pendency of said bankruptcy proceedings plaintiff’s said cause of action was unliquidated and had not arisen. 2. That the claim of the plaintiff was not provable under the bankruptcy laAV, and was not- such a debt or claim as Leader’s discharge in bankruptcy would be effective against. 3. Because it does not appear that said Leader was ever made a party to the bankruptcy proceedings or presented his claim therein. Each of these demurrers to said special pleas was sustained.
    On the trial of the cause, the plaintiff introduced evidence showing the execution of the indemnity bond sued on, and introduced the records and transcripts of the court to show that judgment had been recovered against him by Lula Winn for haying made levy against which he was indemnified by the execution of said bond.
    The defendants introduced the transcript and record evidence to show that the said A. S. Leader had been duly and regularly declared a bankrupt in proceedings which were instituted on January 24, 1902, and had been discharged of all debts and liabilities provable under the bankruptcy law.
    During the trial of the case two of the defendants who were sureties on said bond offered to file a special plea setting up their release from the bond, of the plaintiff. The court declined to- allow the interposition of this plea, and to this ruling the defendants duly excepted.
    The cause was tried by thé court without the intervention of a jury, and upon the introduction of all the evidence, judgment was rendered in favor of the plaintiff.
    The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.
    Pinkney Scott, for appellants.
    The demurrer to the amended complaint should have been sustained. — Mobile Life Ins. Go. v. Randall, 74 Ala. 176; Meyers v. Gilbert, 18 Ala. 470.
    It was error to render a judgment against defendants in this case. The plea put in by A. S. Leader, as to bankruptcy, was clearly proven by his certificate of discharge which made out his defense clearly and conclusively. — Oats v. Parrish, 47 Ala. 147.
    No counsel marked as appearing for appellee.
   SHARPE, J.

To the amended complaint no valid objection was raised by demurrer. In the complaint as originally filed and as it stood after amendment the cause of action was ex contractu, being for the breach of a bond given to indemnify the plaintiff against damage possible to result from the levy of an execution in the hands of himself as constable.

From the complaint it appeared that the damages consisted of an amount plaintiff was compelled to pay on a judgment obtained against him on March 17, 1902, by the owner of the property levied on, and no breach of the bond is averred as accruing prior to that date. None of the special pleas filed by the defendant sureties setting up Leader’s discharge in bankruptcy averred or showed that Leader’s petition in bankruptcy was filed after the accrual of such damages or after the bond had become a liability against Leader other than such as was contingent upon the uncertain event of its breach, and for lack of such averment, those pleas were sfibject to the demurrers interposed to them, respectively. The present bankrupt act makes no provision for proving contingent liabilities against a bankrupt estate. — Collier on Bankruptcy, (4th ed.), 451, 445; 5 Cyc. Law & Procedure, 324. Debts to be provable against such estate must be in existence when the petition in bankruptcy is filed and those not provable are not affected by the discharge.— Collier on Bankruptcy, (4th ed.), 192, 193. See also, In re Burka (D. C.), 104 Fed. 326, construing in this regard section 63 of Bankr. Act, July 1, 1901, c. 541. Moreover, a discharge in bankruptcy of Leader from liability on the bond would not have been effective to discharge the sureties.

The evidence showed that Leader’s petition in bankruptcy was filed January 24, 1902, and that the liability of himself and sureties' on the bond was at that time contingent merely and not provable. Hence, Leader’s plea averring the debt was provable and was discharged in bankruptcy was not sustained by the evidence.

In refusing to allow defendants Pearsons and Land-ders to file during trial a plea setting up a release of themselves from the bond, the trial court acted within its discretion; and without being specially pleaded the suggested release was not available to them as a defense. As a general rule matters of defense, other than those in denial of the complaint’s averments, are required to be specially pleaded.-Code, 1896, § 3295; American, etc. Co. v. Ryan, 112 Ala. 337; Petty v. Dill, 53 Ala. 641. It not appearing that the offered plea was treated as filed, the fact that evidence was admitted tending to prove its statements does not affect the propriety of the judgment, since it was proper to render the judgment upon the issues joined. It may be further noted that-the dis-allowance of this attempted defense is not matter of which all the defendants have, cause for complaint, and the assignments of error thereon being by all the defendants jointly, are not well made.—Rudulph v. Brewer, 96 Ala. 189; Kimbrell v. Rogers, 90 Ala. 339; Magnetic Ore Co. v. Marbury Lumber Co., 113 Ala. 306.

Assignments of error not treated of herein, are not insisted on in defendants’ brief and are, therefore, considered. as waived.—Scarbrough v. Borders, 115 Ala. 436.

Judgment affirmed.  