The defendant’s claim could not have been proved against the estate of the plaintiff, under the proceedings in insolvency, because it was not payable nor due until after the award was accepted; which was several months after the first publication of notice that a warrant had issued for taking possession of the plaintiff’s estate. And as this claim was not provable against the plaintiff’s estate, it is not barred by his discharge. St. 1838, c. 163, §§ 3, 7; Sampson v. Clark, 2 Cush. 173.* Exceptions overruled.
A similar decision was made in Suffolk, March term, 1852.
George H. Sleeper vs. George Miller & others.
This was an action of debt upon a replevin bond, executed by George Miller as principal, and by Giles A. Meacham and Newell Adams as sureties. Miller and Adams were defaulted; and Meacham and the plaintiff submitted the case to the judgment of the court upon the following facts:
The bond in suit was given on the 28th of December, 1846, in an action of replevin commenced on that day by Miller against Sleeper, the present plaintiff. On the 29th of January, 1850, Sleeper recovered judgment against Miller for a return, for nominal damages and for costs, upon which judgment execution was issued, and committed to an officer, who, after returning part of the replevied property to the plaintiff, and making diligent search for the remainder without success, demanded of Miller, on the 9th of March, 1850, the remainder of the property; which Millet *595refused to return. And the officer afterwards returned the execution satisfied in. part.
On the 16th of October, 1849, Meacham was declared insolvent on his own petition, and a warrant was issued for the seizure of his property; and the first publication of notice of the issuing of the warrant was made on the same day; and on ♦he 21st of May, 1850, he obtained his discharge from all debts due from him previously to said 16th of October.
G H. Preston for the plaintiff.
Ho counsel appeared for the defendant.
By the Coüet. There was no breach of the condition of the replevin bond, until after the first publication of notice that a warrant had issued for the seizure of Meacham’s property, under the insolvent laws. The plaintiffs claim, therefore, is not barred by Meacham’s discharge, because it was not provable against his estate,
Judgment for the plaintiff