
    J. N. Houston v. The State.
    1. Under the bankrupt law of the United States, a liability as bail is a provable claim against a bankrupt, provided the liability became fixed before the final dividend was declared.
    2. A surety on a bail bond, showing cause why judgment nisi should not be made absolute against him, answered that previous to the rendition of the judgment nisi, he had filed his petition to be adjudged a bankrupt, and had been so adjudged ; that the bail bond was executed prior to the petition and adjudication in bankruptcy, and was a debt provable against him and subject to be discharged by the proceedings in bankruptcy ; and that he, defendant, had been duly discharged from this and all other obligations. Held, that this answer failed to show cause why the judgment nisi should not be made absolute, inasmuch as it omitted to aver that defendant’s liability on the bail bond had become fixed before the final dividend was declared upon his estate in bankruptcy.
    Error from Caldwell. Tried below before the Hon. J. J. Thornton.
    The opinion states the case.
    
      T. M. Harwood and J. H. Burts, for the appellant.
    
      
      Wm. Alexander, Attorney General, for the State.
   Walker, J.

If the liability in this case had become fixed before the final dividend of the bankrupt’s assets, the pleading should have so stated.

A discharge in bankruptcy only operates against such claims as are provable before the last dividend. The liability from which the defendant appeals in this case is not one against which a discharge in bankruptcy would give relief, except under certain circumstances. The bail bond was executed on the eleventh of October, 1867; the judgment nisi was rendered May 28, 1868; scire facias issued on the seventh of June. 1869, was executed the twenty-ninth of July, 1869, and the answer was filed on the fourth of December, 1869.

The petition in bankruptcy was filed on the twenty-first of February, 1868. The discharge took effect from this date, though dated on the fourth of December, 1868.

By the nineteenth section of the bankrupt law of 1867, a liability as bail was a claim which could be proved against the bankrupt, provided the liability had become fixed before final dividend declared. If this defense existed it should have been properly brought to the notice of the court. This depends upon the answer filed on the fourth of December, 1869. The answer sets forth that the liability was fixed and provable on the twenty-first day of February, 1868; that his discharge dates on the fourth of December, 1868; but he does not aver the date of the final dividend of his assets. This was a material averment to the answer, which is wanting, and the judgment of the district court must be affirmed.

Affirmed.  