In re Dunnigan

D. Massachusetts

In re Dunnigan

95 F. 428, 1899 U.S. Dist. LEXIS 418

CourtDistrict Court, D. Massachusetts

DecidedJuly 14, 1899

DocketNo. 472

StatusPublished

Cited by7 cases

This text of 95 F. 428 (In re Dunnigan) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Dunnigan, 95 F. 428, 1899 U.S. Dist. LEXIS 418 (D. Mass. 1899).

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Opinion

LOWELL, District Judge.

The allegations in the petition have been established, and upon this point I find no reason to differ from the report of the referee, to whom the case was referred, under rule 12, to ascertain and report the facts. The only difficulty is created by the fact not stated in the petition, but properly set up in the answer, and not disputed, that one of the respondents, a member of the respondent firm, is a minor. Upon the whole, the authorities make it pretty clear that an infant cannot generally be made an involuntary bankrupt, and sound reasoning leads to the same result. In re Derby, 6 Ben. 232, Fed. Cas. No. 3,815; Farris v. Richardson, 6 Allen, 118; In re Brice, 93 Fed. 942. Under these circumstances, an adjudication should be made against the partner who is of age, and against the firm. As to the minor partner, the petition should be [429]*429dismissed without costs, and with a specific statement that the dismissal is made by reason of his minority. See Lovell v. Beauchamp [1894] App. Cas. 607. As was observed by Lord Ashbourne, at page 614:

“It would be most unforfnnate if the adult members of a partnership could evade liability because one of the partners was a minor. If this was laid down, minors would be found in many partnerships.”

It is true that section 5, cl. h, of the bankrupt act, provides that, if one or more, hut not all, of the partners are adjudged bankrupt, the partnership property shall not be administered in bankruptcy, but by the nonbankrupt partner. This provision, however, seems to me not intended to apply to a case in which the exempt partner escapes only because of his minority. To permit him alone by reason of his minority to settle the partnership business would be absurd. Decree in accordance with opinion.

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LOWELL, District Judge.

The allegations in the petition have been established, and upon this point I find no reason to differ from the report of the referee, to whom the case was referred, under rule 12, to ascertain and report the facts. The only difficulty is created by the fact not stated in the petition, but properly set up in the answer, and not disputed, that one of the respondents, a member of the respondent firm, is a minor. Upon the whole, the authorities make it pretty clear that an infant cannot generally be made an involuntary bankrupt, and sound reasoning leads to the same result. In re Derby, 6 Ben. 232, Fed. Cas. No. 3,815; Farris v. Richardson, 6 Allen, 118; In re Brice, 93 Fed. 942. Under these circumstances, an adjudication should be made against the partner who is of age, and against the firm. As to the minor partner, the petition should be [429]*429dismissed without costs, and with a specific statement that the dismissal is made by reason of his minority. See Lovell v. Beauchamp [1894] App. Cas. 607. As was observed by Lord Ashbourne, at page 614:

“It would be most unforfnnate if the adult members of a partnership could evade liability because one of the partners was a minor. If this was laid down, minors would be found in many partnerships.”

It is true that section 5, cl. h, of the bankrupt act, provides that, if one or more, hut not all, of the partners are adjudged bankrupt, the partnership property shall not be administered in bankruptcy, but by the nonbankrupt partner. This provision, however, seems to me not intended to apply to a case in which the exempt partner escapes only because of his minority. To permit him alone by reason of his minority to settle the partnership business would be absurd. Decree in accordance with opinion.

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Bluebook (online)

95 F. 428, 1899 U.S. Dist. LEXIS 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dunnigan-mad-1899.

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