were in contemplation: (a) the Indian country which was formerly the Indian Territory and now is included in a portion of the State of Oklahoma; (b) the city of Tulsa, Tulsa County, Oklahoma, which was formerly within and is now a part of what is known as the Indian country; and (c) other parts and portions of that part of Oklahoma which lies within the Indian country. It is said by petitioners that Tulsa was established as a town under the Curtis Act of June 28, 1898, and the Creek Agreement (act of March 1, 1901, c. 676, 31 Stat. 861), and that we ought to take judicial notice of what is said to appear upon the records of the Department of the Interior, that on February 21, 1901, the exterior limits of the town were approved and the tract thus reserved from allotment and set aside for town site purposes, that unrestricted patents have since been issued, and that at the time of the alleged offense Tulsa was a city of 30,000 people. For the sake of simplicity we assume the facts to be so, without deciding that we may take judicial notice of them. But we think the third clause, "other parts and portions of that part of Oklahoma which lies within the Indian country," is sufficient to sustain the indictment in this respect. It is objected by petitioners that this is vague and indefinite, and does not apprise the defendants with certainty of the offense with which they stand charged so as to enable them to prepare the defense; that there were more than 100,000 allotments made to Indians of the Five Civilized Tribes alone, and that the courts should take judicial notice of the fact that the restrictions upon three-fourths of the allotments of mixed bloods have been removed by direct legislation of Congress, not to speak of the lands taken out of Indian country by being included within established town sites. But upon this record we are bound to assume that the indictment sets forth the agreement as it was made by the convicted defendants. That agreement looked to the introduction of intoxicating

liquors into those portions of the State that lie within the Indian country. Presumably the defendants did not, at the time of conspiring, specify the particular points in the Indian country to which the liquor should be shipped; nevertheless, the conspiracy could not be carried out as made without violating the act of 1897.

The indictment is therefore sufficient, and the judgment should be affirmed.

Judgment affirmed.

MR. JUSTICE MCREYNOLDS took no part in the consideration or decision of this case.

WILLIAMS v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF

GEORGIA.

No. 80. Argued January 18, 1915.-Decided February 23, 1915.

Statutes should be sensibly construed, with a view to effectuating the legislative intent.

It is the purpose of the Bankruptcy Act to convert the assets of the bankrupt into cash for distribution among creditors and then relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from obligations and responsibilities consequent upon business misfortunes.

Within the intendment of the bankruptcy law provable debts include all liabilities of the bankrupt founded on contract, express or implied, which at the time of the bankruptcy were fixed in amount or susceptible of liquidation.

Under the provisions of the Bankrupt Act, the surety of the bankrupt

either shares, or enjoys due opportunity to share, in the principal's

Argument for Defendant in Error.

236 U. S.

estate, and, therefore, the discharge of the bankrupt acquits the obligation between them incident to the relationship.

A discharge in bankruptcy acquits the express obligation of the principal to indemnify his surety against loss by reason of their joint bond conditioned to secure his faithful performance of a building contract broken prior to the bankruptcy although the surety did not pay the consequent damage until thereafter.

11 Ga. App. 635, reversed.

THE facts, which involve the construction of the Bankruptcy Act and effect of a discharge in bankruptcy, are stated in the opinion.

Mr. J. Howell Green and Mr. Alex. C. King for plaintiff in error.

Mr. Alex. W. Smith, Jr., with whom Mr. Alex. W. Smith was on the brief, for defendant in error:

A discharge in bankruptcy shall release a bankrupt from all his provable debts, and the "provable debt" from which the bankrupt is released means an obligation susceptible of being presented in such form as to come within some one or more of the classes of debts designated in § 63-a. 1 Remington on Bankruptcy, § 628.

The question whether or not a debt is provable turns upon its status at the time of the filing of the petition. Id., § 629; Zavelo v. Reeves, 227 U. S. 625.

Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate.

Section 63-b adds nothing to the class of debts prescribed under 63-a. It merely permits the liquidation of an unliquidated claim provable under the latter provision. Dunbar v. Dunbar, 190 U. S. 340; Coleman Co. v. Withoft, 195 Fed. Rep. 250; In re Roth & Appel, 181 Fed. Rep. 673; In re Adams, 130 Fed. Rep. 381.

Contingent claims are not provable under the act of

236 U. S.

Argument for Defendant in Error.

1898. 1 Remington, § 640; In re Roth, 181 Fed. Rep. 673; Coleman v. Withoft, 195 Fed. Rep. 250.

Contingent is the quality of being casual; the possibility of coming to pass; an event which may occur; a possibility.

All anticipated future events, which are not certain to occur are contingent events, and may be properly denominated mere possibilities, more or less remote.

A contingent claim is one which has not accrued and which is dependent upon the happening of some future event. 2 Words & Phrases, p. 1498.

Sureties and endorsers on commercial paper and others similarly situated have a provable claim against their bankrupt principal even though at that time there has been no default on the part of the bankrupt. 1 Remington, §§ 642-645, and cases cited.

There is a very clear distinction between this class of cases and the case at bar, involving a surety for the "faithful performance" of a contract or duty by the bankrupt. 1 Remington, § 647.

Such claims are contingent: First, on a breach by bankrupt of the contract or duty.

Second, on actual pecuniary loss suffered by the surety as a consequence of said breach by the bankrupt.

The existence of either or both of said contingencies at the time of the filing of the petition in bankruptcy renders the claim of the surety non-provable, and therefore unaffected by the bankrupt's discharge. Goding v. Rosenthal, 6 A. B. R. 641 (Note); Clemmons v. Brinn, 7 A. B. R. 714; Insley v. Garside, 121 Fed. Rep. 699.

The distinction which reconciles the positions of both sides of this case and the authorities cited by them respectively, is that which exists between a contract assuming liability, and one indemnifying against loss. The terms of such contracts fix the law applicable to them respectively.

Opinion of the Court.

236 U.S.

The distinction is clearly pointed out in the following cases: Contracts assuming liability: Fenton v. Fidelity Co., 36 Oregon, 283; Anoka Lumber Co. v. Fidelity Co., 3 Minnesota, 286; Tucker v. Murphy, 114 Georgia, 662; Thomas v. Richards, 124 Georgia, 942; Mills v. Dows Adm'r, 133 U. S. 423, 432; Johnson v. Risk, 137 U. S. 300, 308.

Contracts indemnifying against loss: Carter v. Etna Ins. Co., 76 Kansas, 275; Allen v. Ætna Ins. Co., 145 Fed. Rep. 881; Connelly v. Bolster, 187 Massachusetts, 266; Harvey v. Daniel, 36 Georgia, 562; Wicker v. Hoppock, 6 Wall. 94; Insley v. Garside, 121 Fed. Rep. 699; National Bank v. Bigler, 83 N. Y. 62.

The contract recovered on in the case at bar is a contract of indemnity and falls within the latter class in all of which it is well-nigh universally held that to recover for a breach, loss or damage must be sustained by actual payment of money, or its equivalent under the law. 16 Am. & Eng. Encyc., 2d ed., 178 (a) and notes; 22 Cyc. 79-92.

Indemnity means an obligation to make good a loss; no loss, no obligation.

MR. JUSTICE MCREYNOLDS delivered the opinion of the

court.

This cause presents the following question: Does a discharge in bankruptcy acquit an express obligation of the principal to indemnify his surety against loss by reason of their joint bond conditioned to secure his faithful performance of a building contract broken prior to the bankruptcy when the surety paid the consequent damage thereafter?

R. P. Williams and J. B. Carr, as partners, entered into a contract with certain school trustees-April, 1900,-to construct a building in Florida, and, with defendant in error company as surety, gave a bond guaranteeing its