Smith v. Mcquillin
| Decision Date | 10 December 1906 |
| Citation | 79 N.E. 401,193 Mass. 289 |
| Parties | SMITH v. McQUILLIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Frank A. Pease, for plaintiff.
Lincoln & Hood, for defendant.
The plaintiff was surety on a bond given by the defendant to dissolve an attachment. Judgment was recovered against the defendant in that action which the defendant satisfied in part. Afterwards suit was brought on the bond by the judgment creditor against the present plaintiff and the other surety. Judgment was rendered against the present plaintiff in the action thus brought and on demand he paid and satisfied the judgment. Between the bringing of suit on the bond and the recovery of judgment the present defendant went into bankruptcy and was discharged. He sets up that discharge in defense 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 have been provable. But in Morgan v. Wordell, 178 Mass. 350, 59 N.E. 1037, 55 L. R. A. 33, 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, 61 N.E. 222; Dunbar v. Dunbar, 180 Mass. 170, 62 N.E. 248), and we are unable to distinguish this case from Goding v. Roscenthal, supra, where a similar claim was held not to be provable. In accordance with the terms of the report the entry will therefore be judgment on the verdict.
So ordered.
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