This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If a bankrupt receives a discharge, this is not, as will be seen,1 a bar which can be invoked by those who are liable with him, whether primarily or secondarily. If such persons are compelled to pay such debt to the creditor, the question whether their claim against the bankrupt for contribution or exoneration is barred by such discharge is presented for adjudication.
See to the same effect as the last case cited: Percy v. Foote, 36 Conn. 102; Bowen v. Eichel, 91 Ind. 22, 46 Am. Rep. 574; Wheeler & Wilson Mfg. Co. v. Taft, 61 N. H. 1.
6 See Sec. 3164.
7 Leisure v. Kneeland, 2 Wash. 537, 26 Am. St. Rep. 888, 27 Pac. 176.
8 Hefner v. Hefner, 26 S. D. 74, 127 N. W. 634.
9 Williams v. Harkins, 55 Ga. 172; Sweaney v. Baugher, 166 Ind. 557, 77 N. E. 1083; Merrill v. Schwartz, 68 Me. 514; Dow v. Davis, 73 Me. 288.
10 Bush v. Person, 59 U. S. (18 How.) 82, 15 L. ed. 273; French v. Morse, 66 Mass. (2 Gray) 111; Magwire v. Rig-gin, 44 Mo. 512; Wright v. Gottschalk (Tenn. Ch. App.), 43 L. R. A. 189, 48 S. W. 140.
11 Goding v. Roscenthal, 180 Mass. 43, 61 N. E. 222.
12 Dight v. Chapman. 44 Or. 265, 75 Pac. 585.
1 See Sec. 3159.
If the persons who are compelled to pay such debt are jointly liable with the bankrupt not as surety for him, but all as surety for a third person, his discharge is no bar to their claim for contribution for payments made by them after bankruptcy proceedings have been instituted according to the numerical weight of authority,2 though some carefully considered cases have, with better reasoning, held that such claims are barred by such discharge.3 Where the bankrupt law provides a means for proving the joint claim against the bankrupt's estate no good reason appears why the liability of the maker to his co-obligors can not be estimated and treated as a provable claim.
If the bankrupt is primarily liable and those liable jointly with him are liable as sureties for him, the weight of authority treats his discharge as barring the claims of his sureties for contribution arising out of payments upon such debt made by them after proceedings in bankruptcy were begun, if such claim on which the bankrupt is primarily liable was itself provable in bankruptcy.4 A minority of the states hold that the claim of the surety is not barred.5 Of course if such claim was not provable in bankruptcy the liability of the bankrupt to his creditor is not barred, and hence his liability over to his surety for subsequent payments on such debt is not barred either.6