I propose to examine only the first ground of demurrer. This is the important question and goes to the merits of the case, viz: Whether the discharge of the defendant released him from the plaintiff's claim.
The 1st section of the general bankrupt act provides that the debtor shall, in his petition, set forth a list of his creditors, their respective places of residence, the amount due to each, c. The 4th section provides for a notice to *Page 68 the creditors and for publication. It also declares that the discharge shall be a full and complete discharge of all debts, contracts and other engagements provable under the act. The object of compelling the applicant to set forth in his petition a list of his creditors, and then providing for the publication and personal notice was, that those interested in preventing the discharge might appear and oppose. And it would seem as though no claims should be cut off by the discharge but those held by persons who would have a right to appear and oppose the discharge. The 5th section does not, however, limit the claims to be proved to debts, but includes persons whose debts are not due, sureties, bail or other persons having uncertain and contingent demands against the bankrupt. We are bound, in construing this clause of the act, to give the language used its full and fair meaning, but not to stretch it so as to include every case which may by any possibility be brought within it, particularly when by such a construction the whole scope and intention of the act is violated.
The case of Crafts v. Mott (4 Com., 604,) but reiterates the plain language of the act, when it declares that whether the discharge and certificate will operate as a discharge of a particular debt, depends upon the question whether the debt is provable under the act; and that case only decides that as the plaintiff, by the bond executed to him by the defendant, was surety for the defendant, that his claim was provable and therefore discharged. It does not hold that the uncertain and contingent claim of a co-surety, before any default of the principal or payment by any of the sureties, is cut off by the discharges.
The 52d and 56th sections of the act of 6 Geo. IV., chap. 6 are very similar in their provisions to the portion of the 5th section of our bankrupt act which we are now considering; and yet, it has never been held under that act that the claim of a co-surety before default, was discharged; on the contrary, the whole course of decisions holds, "that a *Page 69 liability incapable of valuation at the time of the bankruptcy is not provable; as where the contingency is, whether the original debtor would not himself pay, and whether the bankrupt would ever be called upon to pay." (Burge on Sureties, 431; Clements v.Langley, 5 B. Ald., 372.) In the case at bar there was a contingency whether a judgment in the replevin suit would ever be obtained against the principals in the bond. And in this it differs from a bond to pay money absolutely. But if a judgment should be obtained against the principal in the bond, there was another contingency, whether Mahoney and Trull, the principals in the bond, would not themselves pay the sum recovered against them. If they failed thus to pay, there was then this third contingency, whether either of the sureties would pay more than his share, and thus acquire a right against his co-surety to contribution. There was hence no possible manner in which the plaintiff could establish a demand against the defendant, or in which the demand, if it may be called such, could be valued.
It will not be pretended that the plaintiff, at the time of the proceedings in bankruptcy, was a creditor of the defendant, nor was he a surety, or endorser, or bail for the defendant. Did he come within the designation, "other persons having uncertain or contingent demands against such bankrupt?" Demand, here, must be understood as some claim or obligation due from the defendant to the plaintiff, but the amount of which is uncertain or contingent. Because in the same proviso, creditors, whose debts are not due until a future day, are permitted to come in and prove their claim; in this case the demand of the plaintiff against his co-surety did not exist until payment by the plaintiff. At the last term of this court, in the case of Barry v. Ransom (2 Kernan, 462), we held that the right of one of two sureties to recover against his co-surety did not depend upon the bond executed by them, but upon equitable principles; and that the right of action grew out of the *Page 70 payment, by one of the co-sureties, of more than his share of the money. Applying these principles to this case, it will appear that the plaintiff, at the time of the proceedings in bankruptcy, had no demand of any kind against the defendant; but that his demand originated at the time of the payment of the money on the bond by the plaintiff. I think the cases of Holbrook v. Foss (27 Maine R., 441), and of Ellis v. Ham (28 Maine R., 385), are authority in point.
It is not, however, in this case, necessary to say whether the obligees in the bond had such a demand as might have been proved. It is sufficient at this time to decide the case at bar; and in deciding this case, the statute in question should be fairly construed, giving to the terms used their ordinary signification. But I am unwilling, by judicial construction, to so stretch its language as to make it a universal expunger to wipe out all claims, whether they existed at the time of the proceedings in bankruptcy or originated afterwards.
I am of opinion that the judgment of the supreme court should be reversed.
Judgment affirmed.