Baker's Case

8 Mass. 109

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1851
• Status: Published

Opinion

Shaw, C. J.

These proceedings under the insolvent law, St. 1838, c. 163, § 21, where partners become insolvent, are so regulated, as to effect a settlement of the whole estate of the partners, jointly and individually. The statute requires that the assignee keep separate accounts of the joint estate, and of the joint debts proved; and so of the separate estate of each partner; with a provision, that the joint estate shall be applied in the first instance to pay the partnership debts, and the funds of each partner to his separate debts. The effect therefore is nearly the same, as if there were three commissions ; one against the two jointly, and one against each. If then, either one pays more than fifty per cent of his separate debts, he is entitled to the same benefits as if he had been a sole insolvent. The court are therefore of opinion, that the petitioner is entitled to be discharged from his separate debts, provable as separate debts, due from him individually, and not as a copartner, at the time of the first publication. Also, that the petitioner is entitled to his five per cent allowance, although the joint estate would not be sufficient to pay fifty per cent; if in other respects the petitioner would be entitled to the same, if the petitioner was an insolvent under a separate warrant.