In re Berrian

3 F. Cas. 283, 6 Ben. 297, 44 How. Pr. 216

• Court: District Court, S.D. New York
• Decided: December 15, 1872
• Status: Published

Opinion

Blatchford, J.

The 36th section of the bankrupt act, in saying that the net proceeds of the separate estate of each partner shall be appropriated to pay his separate creditors, and that if there shall be any balance of the separate estate of any partner after the payment of his separate debts, such balance shall be added to the joint stock on the payment of the joint creditors, follows the language of the Massachusetts insolvent law, under which (Gen. Stats. of Mass., of 1838, chap. 163, §, 21) it was held in Thomas agt. Minot (10 Gray, 263) that where a partnership and its members are in insolvency under one commission or one adjudication in the same proceeding, and the separate estate of one partner is more than enough to pay his separate debts, at the amounts proved as they stood at the time of liquidation recognized by the statute (which in that case was the day of the first publication of notice) without computing interest thereon after that time, the surplus of such separate estate over such debts is to be added to the partnership estate, and applied to the payment of joint debts, before paying such interest on the separate debts. The rule laid down in that case, was established in 1857, and ought to be followed under the like provision in the bankruptcy act, as being substantially a construction of the provision which accompanied its enactment.