The opinion of the Court was drawn up by
Shepley J.— The defendant having been elected a constable of the town of Sidney, executed a bond on March 11, 1840, with the plaintiff and others as his sureties, for the faithful discharge of his duties. John F. Childs recovered a judgment at the October Term of this Court, in the year 1843, against the defendant for damages occasioned by an official neglect of duty. Failing to obtain satisfaction of that judgment, he caused a suit to be commenced upon the official bond of the defendant. That suit was settled by the sureties, and the plaintiff paid for the defendant, on Nov. 22, 1845, his share of the damages. This action has been commenced to recover the amount thus paid.
The defence presented is, that the defendant on December 19, 1842, filed a petition to be declared a bankrupt, under the act of Congress, passed in 1841; that he was decreed to be a bankrupt on January 22, 1843, and that he obtained his discharge as a bankrupt on January 27, 1846.
This defence cannot prevail.
1. The plaintiff, when the petition was filed, had no claim, which could be proved against the defendant in bankruptcy. There was then no proof, that the defendant had not faithfully discharged all his official duties. There was no contingent debt due from the defendant to the plaintiff. There was only a contingency or possibility, that such a claim or debt might exist at some future tima. Such a claim could not be proved or discharged, under the act of Congress, Woodward v. Herbert, 24 Maine R. 358.
2. The plaintiff had no claim against the defendant, until he had suffered an injury in consequence of becoming his *388surety. He could not claim protection or indemnity merely, because Childs had recovered a judgment against the defendant for official delinquency; for the defendant might have satisfied that judgment, and thereby have prevented its being the occasion of injury to the plaintiff, who first acquired a right of action against the defendant by paying a sum of money to be discharged from the suit upon the bond. This was done in November, 1845, and until that time he had no claim, which he could enforce or prove in bankruptcy. It was decided in the case of Wells v. Mace, 17 Verm. R. 503, that a surety having paid a note, from which the principal had been discharged in bankruptcy, might recover the amount of the bankrupt, and that his- discharge was no bar to the suit.
3. The claim of Childs to recover damages for an injury occasioned by official neglect, was one, for which an action in form ex delicto could alone be maintained. Such a claim would not have been discharged by the proceedings in bankruptcy, unless a judgment had been obtained upon it, before the petition was filed, thereby changing its character from tort to debt. Graham v. Pierson, 6 Hill, 247; Williamson v. Dickens, 5 Iredell, 259; Spalding v. State of New York, 4 Howard, 21. If the claim of Childs was such that it would not be discharged, that of the plaintiff arising out of it could ■not be.
4. If the claim of Childs had been such that it could have been proved in bankruptcy, that claim would have been extinguished by the judgment recovered upon it.
That judgment having been recovered since the petition was filed, would costitute a new debt, which would not be discharged. Crouch v. Gridley, 6 Hill, 250 ; Kellogg v. Schuyler, 2 Denio, 73.
It will not be necessary to consider, whether the official bond «of a constable should be considered to be a fiduciary debt.
Judgment for the plaintiff.