Sigourney v. Williams , 67 Mass. 623 ( 1854 )

Shaw, C. J.

The discharge in insolvency of Wood was obtained under St. 1848, c. 304, § 9, which is one of the acts in addition to the insolvent law of 1838, c. 163, and did not repeal that part of the original act, which declares the force and effect of a discharge. The terms of the original act, § 7, clearly and expressly show that the discharge of Wood did not discharge his partner Sigourney. It is true, that, as Wood’s assets did not pay fifty per cent, of the claims proved against his estate, he would not have been entitled to a discharge, without the assent of the majority of his creditors, and that the commissioner could not lawfully have granted him a discharge, without such assent. But it does not follow that this discharge derives its whole force and effect from the assent, and operates like a technical release of Wood, under seal. It was an assent that Wood should receive a discharge under the insolvent law, having the force and effect given to such a discharge by the law, which is a discharge of the individual debtor, expressly reserving the liability of any partner or surety. Whether therefore the discharge was obtained by the consent of the creditors, or without, it was a discharge obtained pursuant to law, having the effect given it by law, and no more — to discharge the individual, but not to discharge his partner. And although the creditors might legally have refused their assent, yet this would have been an unjustifiable exercise of their power, if they were satisfied that the debtor had in all respects conformed to the law, made a full disclosure of his property, and done no improper act.

Judgment for the defendants in review.