Church Place

14 A. 874, 16 R.I. 231, 1888 R.I. LEXIS 40

• Court: Supreme Court of Rhode Island
• Decided: May 25, 1888
• Status: Published

Opinion

Durfee, C. J.

The case stated does not set forth the assignment from J. Erastus Lester to Nelson E. Church, and therefore we assume that it was in the ordinary form “ for the equal benefit of the assignor’s creditors in proportion to their respective claims.” Assuming this, it follows that only creditors who were such when the assignment was made are entitled to dividends under it. Charles L. Place contends that the Municipal Court of the city of Providence and the Court of Probate of Warwick were such creditors in virtue of the bonds on which his intestate was surety, and that he, as administrator, having satisfied the bonds, is entitled by subrogation in their stead to the dividends which they would have been entitled to if he had not satisfied them. Were the said probate courts creditors of the assignor when the assignment was made ? We think not. The statement does not show any breach of either of the bonds until afterwards, and until the bonds were broken the assignor owed them nothing thereon, and if he owed said courts nothing they were not his creditors. If he had never committed any breach he would never have owed them anything. It is not the case of a debt incurred or contracted to be paid in futuro. Even in proceedings in insolvency or bankruptcy, under statutes much more liberal in their provision for contingent debts or liabilities than our assignments are, such bonds are not provable for dividends, unless broken prior to the proceedings. Bennett v. Bartlett, 6 Cush. 225 ; Mann v. Houghton, 7 Cush. 592 ; French v. Morse, 2 Gray, 111; Kingman v. Fowle, 5 Allen, 133; Ellis v. Ham, 28 Me. 385; Fowler v. Kendall, 44 Me. 448, 457. In Loring v. Kendall, 1 Gray, 305, it was held that a surety on an administrator’s bond was not protected by a discharge in bankruptcy from suit on the bond for breach occurring afterwards. Shaw, C. J., in delivering judgment, said: “ Such an existing obligation, we think, can in no just sense be considered a debt either in prcesenti or in futuro. It may in case of any forfeiture be the foundation of a debt, but any claim arising from it in the nature of a debt will arise from the breach, and not from the mere existence, of the obligation.” We declare it to be our opinion that Charles J. Place, as administrator on the. estate of James C. Lester, is not entitled to a dividend under the assignment of J. Erastus Lester.

Nelson E. Church, pro se ipso. Simon S. Lapham, for Charles J. Place, administrator. ■

The case stated does not show that either bond has been fully satisfied. We do not understand that, even if the breaches had occurred before the assignment, Place would be entitled by subrogation in respect of either bond without first making such satisfaction. Coates' Appeal, 7 W. & Serg. 99; Lee et al. v. Grriffin et al., 31 Miss. 632 ; Union Bank of Maryland v. Edwards, 1 Gill & J. 346.