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.