107 F. 897 | 3rd Cir. | 1901
The question presented by this appeal is whether the liability of a bankrupt indorser of commercial paper, whose liability did not become absolute until after the filing of the petition in bankruptcy, may he proved against his estate after such liability has become fixed, and within the time limited for proving claims. By the first section of the bankrupt law, — the act of July 1, 1898, — it is declared that the word “debt,” as used in the act, shall include “any debt, demand, or claim provable in bankruptcy.” Section 63 declares what debts of the bankrupt may he proved and allowed against his estate, and ranges the provable debts,in five subdivisions, numbered from 1 to 5, inclusive. For present purposes we need quote only two of those subdivisions, namely:
“(I) A fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did not bear interest;” “(4) founded upon an open account, or upon a contract express or implied.” :
Clearly the liability of an indorser is within the very words of this fourth subdivision. As was said by the supreme court in Martin v. Cole, 104 U. S. 30, 37, 26 L. Ed. 647, the contract created by the indorsement of commercial paper is an “express contract,” and “its terms are certain, fixed, and definite.” The indorser’s engagement is to pay a sum certain at a fixed date, to wit, the amount of the bill or note at its maturity, if it is not paid upon due presentment by the