Tooker v. Bennett , 3 Cai. Cas. 4 ( 1805 )

jPer curiam delivered by

Livingston J.

We perceive no difficulty in this case. By the proceedings under the “ Act for giving re“lief in cases of Insolvency,” Bennett is discharged from “all “debts due at the time of the assignment of his estate, or “contracted for, before that time, though payable afterwards, "and if in prison, from imprisonment,,” now as a joint debt is the debt of each, as well as of all of the partners, he is absolved from such a demand as well as from every other. This is the case in England under the bankrupt laws ; for, although the statutes on this subject say nothing of joint or separate debts, or of joint or separate commissions, all debts due by the bankrupt, whether jointly or separately, are equally discharged by a certificate, and that whether the commission be separate or joint. 3 P. W. 24. Str. 995. 1157. 1 Atk. 67. It is reasonable this should be so, for the assignees of an insolvent partner have a right to possess themselves, not only of his separate estate, but also of his proportion of the joint property, if it be more than sufficient to pay the demands against the partnership — As all his estate then,' whether private, or what he may have in the common stock, passes by his assignment, what reason can be given why he should remain liable for a partnership more than any other demand ? Bennett’s discharge therefore is a good bar to this suit against him. But it can form no defence for Brower. The discharge of one partner under the insolvent act, is no proof of the insolvency of his copartners ; as neither Brower’s separate estate, nor his interest in the joint fund, passed by the assignment of Bennett, it would be difficult to say why he should be exonerated, by the inability of Bennett from paying a debt for which he was before liable to the extent of his whole fortune, or why the present plaintiff should be deprived, in this way, of the security which the law gave him, at the time of contracting the debt, against the person and property of Brower.

It is not possible, that by any reasoning such injustice can be rendered even plausible.

In England the certificate of one partner is declared by statute, not to discharge or release the other, who shall remain liable, as if it had never been obtained. No statute can be necessary to justify our going the length we now do. The obvious good sense and propriety of such a provision, will justify otir adopting the same rule, without waiting for legislative sanction.^* Judgment must there-tore be entered for the plaintiff against Brower with costs, andin favour of Bennett, who will of course be entitled to have his costs of the plaintiff. This will cause no inconsistency in the record ; a joint suit was properly brought; and it will appear by the record that although the promise was made by both the defendants, yet judgment was recovered against one only, by reason of the discharge _ . ' of the other, since the making of the notes.

* Nadin v. Baitie East, 147. S. P.