DOLE V. WARREN.

[32 MAINE, 94.]

CO-SURETY MAY RECOVER CONTRIBUTION AGAINST ANOTHER for money paid after defendant's discharge in bankruptcy, though the obligation on which they were co-sureties was payable before petition in bankruptcy was filed.

JUDGMENT AGAINST ONE CO-SURETY ENTITLES HIM TO CONTRIBUTION, though the other co-surety's name was stricken out by the plaintiff in the suit on the bond to which the co-sureties had signed their names. DISCHARGE IN Bankruptcy does not Affect CLAIMS SO UNCERTAIN that they can not be proved up against the estate of the bankrupt.

ASSUMPSIT. Plaintiff and defendant, with two others, became sureties for one Lancy. In November, 1842, defendant petitioned to become a bankrupt, and on the thirteenth of December following was so decreed to be, but was not discharged until January, 1844. Pending the proceedings in bankruptcy, and the day previous to the decree of bankruptcy of defendant, an action on the bond on which plaintiff and defendant were sureties was commenced. After the decree of bankruptcy, defendant's name was stricken from the papers in the action on the bond. Judgment was recovered and paid by plaintiff. The suit was brought to recover one fourth part of the payment made by him. Judgment for plaintiff.

Jewett and Crosby, for the plaintiff.

Hobbs, for the defendant.

By Court, TENNEY, J. The facts reported in this case bring it within the principle of the cases of Woodard v. Herbert et al., 24 Me. 358, and Ellis v. Ham, 28 Id. 385. The claim of the plaintiff was one, which might, by possibility, exist at a future time, when the defendant filed his petition to become a bankrupt, and when he was decreed to be such; but it was then so uncertain, that it could not have been proved as a claim against the bankrupt's estate, and was not discharged by his certificate.

The voluntary discontinuance as to Warren by Whitman in the suit, upon the bond against Lancy and his sureties, can not relieve him from liability to contribution. This discharge from the action was the act of one who was fully empowered by the statute to make it, on the payment of costs, and could not have been controlled therein by the plaintiff. The obligation of the defendant to the plaintiff, now sought to be enforced, arises under a contract entered into at the time the bond was executed. By becoming sureties on the bond, each impliedly promised all

t

the others, that he would faithfully perform his part of the contract entered into by the obligors, pay his proportion of loss arising from the total or partial insolvency of the principal, and to indemnify them against any damage by reason of his neglecting to do so: Howe v. Ward, 4 Greenl. 195. This contract between the sureties was entirely unaffected by the umission of Whitman to prosecute the suit against the defendant. As long as he was able to obtain a judgment against the principal, the plaintiff and another of the sureties, and upon that judgment received a payment from the plaintiff, the event had happened, in which the defendant had failed to fulfill his promise to the plaintiff and to his damage. Whether the defendant would have been still liable on the bond, after the suit was discontinued, for any balance which might remain due, is not a question that we are called upon in this action to decide. The plaintiff having paid money, or its equivalent, on account of his joint suretyship with the defendant, is entitled to recover one quarter part of the same from him, according to the agreement of the parties.

Defendant defaulted.

THE PRINCIPAL CASE IS CITED to the point that a discharge in bankruptcy will not avail as a defense where suit is brought by a surety of defendant for money advanced as such surety for his use and benefit, in Lewis v. Brown, 41 Me. 151. In Reed v. Pierce, 36 Id. 157, the principal case is cited, arguendo, to the point that to a claim founded on a covenant of warranty against the lawful claims of all persons, and proved by an eviction which occurred subsequently to the proceedings in bankruptcy, the discharge in bankruptcy is no defense.

RIGHT OF CONTRIBUTION EXISTS BETWEEN JOINT MAKERS of a promissory note in favor of one who has paid the whole thereof, though the remedy of the holder against the maker is barred: Peaslee, Adm'r, v. Breed, 34 Am. Dec. 178. And generally, as to contribution between indorsers or sureties, see note to Aiken v. Barkley, 42 Id. 402, and note to Morrison v. Poyntz, 32 Id. 96.

SURETY OF INSOLVENT DEBTOR IS ENTITLED TO CONTRIBUTION from his cosureties, and if all are solvent, each is liable for his share of the sum advanced by one to relieve them of the common burden: Preston v. Preston, 47 Am. Dec. 717.

DEMANDS NOT DISCHARGED BY BANKRUPTCY.-A discharge in bankruptcy does not release a debt not included in the insolvent schedule: Russell v. Rogers, 13 Am. Dec. 326. And until demand has been made, the liability of one who has received money to the use of another is not a "debt" within the meaning of the act discharging insolvent debtors from their "debts," etc. Pease v. Folger, 7 Id. 213. Nor is an indorser affected by the maker's discharge under the insolvent laws of New York, where he became chargeable on the note before such discharge, but did not pay the debt until afterward: Ainslie v. Wilson, 17 Id. 532.

AM. DEC. VOL. LII-41

MOORE, ADM'R, v. PHILBRICK.

[32 MAINE, 102.]

PROBATE JUDGE HAS NOT JURISDICTION to grant administration upon the estate of a person whose domicile at the time of his decease was not

within the county in which he is judge.

WANT OF JURISDICTION APPEARING IN THE SAME RECORD which shows a grant of adminstration is conclusive against the validity of such grant. IN AN AGREED STATE OF FACTS THE PRINCIPLE IS, if there be no special limitation in the statement, that the defendant is to have judgment if the facts would verify any plea which would be a bar to the action.

ASSUMPSIT. The case was submitted on facts agreed. The opinion sufficiently states the facts.

G. M. Weston, for the plaintiff.

Morrison, for the defendant.

By Court, WELLS, J. By statute, chapter 105, section 3, a judge of probate has power to grant administration upon the estate of a person who, at the time of his decease, resided in the county within which the judge has authority to exercise his jurisdiction. And where it is granted upon the estate of one who had his domicile in this state at the time of his decease, in a county where he did not reside, such administration is void. If a judge of probate has no jurisdiction over the case upon which he undertakes to adjudicate, his proceedings by the common law are coram non judice, and have no binding force upon any one: Holyoke v. Haskins, 5 Pick. 20 [16 Am. Dec. 372]; S. C., 9 Id. 259; Cutts v. Haskins, 9 Mass. 543; Sigourney v. Sibley, 21 Pick. 101 [32 Am. Dec. 248].

The plaintiff was appointed administrator upon the estate of Abraham Moore by the judge of probate for the county of Penobscot, and by the same record it appears that the deceased, at the time of his death, resided in the county of Piscataquis. The judge of probate, therefore, for the county of Penobscot, had no authority to make the appointment.

A recovery in this case would not protect the defendant from an action brought by a rightful administrator. The twentysecond section of the statute before mentioned, which prohibits the jurisdiction of judges of probate from being contested in certain cases, excepts from its operation those in which "the want of jurisdiction appears on the same record." Such want of jurisdiction appearing on the same record, which exhibits the appointment of the plaintiff as administrator, is decisive against his right to maintain this action.

It is contended, on the part of the plaintiff, that the objection made by the defendant should have been taken in abatement. The case is presented for decision upon a statement of facts, without any stipulation, that it shall be made to depend upon the pleadings, or that their effect shall be controlled by

them.

In such position of the case, the rule, as laid down in Gardiner ▼. Nutting, 5 Greenl. 140 [17 Am. Dec. 211], is, that "in an agreed state of facts, the principle is, if there be no special limitation in the statement, that the defendant is to have judgment, if the facts would verify any plea which would be a bar to the action."

But the facts in this case do show a bar to the action, and might be received in evidence under a plea in bar: Stearns v. Burnham, 5 Greenl. 261 [17 Am. Dec. 228]; Langdon et al., Adm'rs, v. Potter, 11 Mass. 313; 1 Ch. Pl. 485. The plaintiff has no cause of action against the defendant, either on this or any other writ, and such ground of defense is properly pleadable in bar: Jewett v. Jewett, Adm'x, 5 Mass. 275. We do not mean to say that the pleas which were filed were inappropriate to the defense, but that the case does not require their examination. According to the agreement of the parties, a nonsuit must be entered.

Plaintiff nonsuit.

THE PRINCIPAL CASE IS CITED in Machias Hotel Co. v. Fisher, 56 Me. 323, to the point that where a case goes up on an agreed statement signed by counsel, and without any stipulation that the determination shall be influenced by the pleadings, the defendant is to have judgment, if the facts would verify any plea which would be a bar to the action.

PROBATE OF WILL OR LETTERS OF ADMINISTRATION, when void for want of jurisdiction: See note to Fisher v. Bassett, 33 Am. Dec. 239 et seq., where the subject is discussed at length; also note to Green v. Creighton, 48 Id. 744.

DWINEL v. SOPER.

[32 MAINE, 119.]

REASONABLE NOTICE TO DEBTORS TO CHOOSE APPRAISER will be presumed by the court from the sheriff's return that such notice was given. SHARES OF JOINT DEBTORS HOLDING ESTATE IN COMMON need not be appraised separately.

SELLING TOO MUCH LAND UNDER LEVY, by the value of one cent and three mills, will not vacate the levy.

WRIT of entry. The demandant claimed title under a levy made upon an execution against defendant. Defendant claimed the levy was invalid. The opinion states the other facts.

Hilliard, for the defendant.

Peters, for the plaintiff.

By Court, SHEPLEY, C. J. The title of the demandant depends upon the validity of a levy made upon the premises. The objections to it are:

1. That reasonable notice was not given to the debtors to choose an appraiser. The return made by the officer states the facts respecting the notice, and that it was a reasonable one. The statute, chapter 94, section 5, requires that a debtor should be allowed a reasonable specified time within which to appoint an appraiser. The return states that one of the debtors resided upon the premises, and the other within half a mile of them. That he left written notices at their respective dwelling-houses, at ten of the clock in the forenoon, to choose an appraiser to make the appraisement at five of the clock in the afternoon of the same day. If the return of the officer were not conclusive, the court could not decide that there was not a reasonable time allowed.

2. The second objection is, that the share of each debtor in the common estate was not appraised separately. There is nothing in the levy which could have the effect to change the character of the estate when redeemed. Both portions of the estate being united in the creditor, the tenancy in common would cease, when it was not redeemed. Equal shares of a common estate must of necessity be of equal value.

3. The third objection is, that the value of the estate exceeded by the sum of one cent and three mills the amount of the debt, costs, and fees.

In the case of Boyden v. Moore, 5 Mass. 365, it was said, "if any sum large enough to be discharged in the current coin of the country is a trifle," "it will be difficult to draw a line, and say how large a sum must be not to be a trifle." This was said in a course of reasoning to show that forty-one cents could not be disregarded as a trifle. And in the same case it is said that a verdict would not be set aside to relieve a party against an error of forty cents, and this term appears to have been used to designate the error before named, of forty-one cents.

In the case of Huse v. Merriam, 2 Greenl. 375, the taxes assessed exceeded by eighty-seven cents the amount authorized by