Mortimer v. Caldwell

1 Kirby 53

• Court: Connecticut Superior Court
• Decided: July 15, 1786
• Status: Published

Opinions

By the Court.

The plea is insufficient. The special act of insolvency set forth in the plea, goes to the exemption of the person of George, one of the defendants, (leaving his estate liable, which he may afterwards acquire). But it extends not to Charles, the other defendant. He is not named in it. Nor is it grounded on any supposed inability of his, to pay the company debts. Nor does it operate to discharge him on the ground of the supposed hardship there would be in his remaining liable, after the person of the other joint debtor is liberated, and the company effects and papers are gone into the hands of trustees and out of his control. If he is in fact more exposed and defenseless to his creditors, since the passing the act of insolvency, than he was before, it does not follow that it has discharged him. But he ever was liable to be relied upon, solely, for all the company debts, and all their contracts were, in their nature, joint and several. Nor is it owing to the passing of the act of .insolvency, that he has not right to control the company effects; he having sold and relinquished his share in them years before, at the dissolution of the partnership; and the act provides for no other assignment than of that which is considered as George’s estate. Nor need there be any difficulty about the company books and papers. Eree access may be had to them, and an order of court, if necessary, might be obtained for their being brought into court when requisite in the trial of a cause.

If the trustees have paid the plaintiff any part of his debt, •out of the avails of the effects assigned to them, it can be shown and applied when damages come to be assessed. A balance, it is clear, there must be due to him, even if the .assignment to the trustees be considered as an actual payment to the creditors, and to the nominal amount of the credits and -effects assigned. And no reason appears why judgment should not be rendered in the present action, for the ascertaining and recovering what still remains due.