author: Ellsworth, J. Waite, J.

text:
    Camp against Grant and others, administrators of the estate of Zelotes C. Grant, deceased.
    The debts of a partnership are in equity joint and several; and a person having a debt against a partnership, may, on the death of one of the partners, come immediately against the estate of that partner, and have his claim allowed, by the commissioners, pari passu with private claims, though the surviving partner be solvent and within the jurisdiction of our courts. [One judge dissenting.]
    A court of probate, in decreeing distribution of the effects of an insolvent estate, takes the claims as found by the commissioners, without including interest which accrued between the rendering of the report and the passing of the decree.
    This was an appeal from a decree of the court of probate for the district of Bristol, ordering payment of the claims of creditors allowed against the estate of Zelotes C. Grant, deceased.
    The following are the facts in the case, agreed to by the parties. The firm of Z. C. & C. S. Grant, consisted of Zelotes C. Grant, the deceased, and C. S. Grant, his brother. Z. C. Grant died in November, 1846; and C. S. Grant, shortly after. At the death of the former, there was partnership property of the value of 700 dollars, which came into the hands of C. S. Grant, as surviving partner. Soon after the death of Z. C. Grant, Bennet, Bulkley & Clark, creditors of the partnership, attached all the partnership property in the hands of C. S. Grant, on a claim much larger than the value of such property, and afterwards presented their claim before the commissioners on Z. C. Grant's estate, and had it allowed in full. They afterwards obtained judgment in their suit against C. S. Grant, as surviving partner, and on the execution issued thereon, sold all the partnership property, which was not sufficient to pay the execution in full. There was no other partnership of Z. C. & C. S. Grant than that above mentioned. The sale of the partnership property on the execution, was after the allowance by the commissioners, of their claim on Z. C. Grant's estate, but long before the passing of the decree appealed from. C. S. Grant, at the time of the death of Z. C. Grant, and long before, was individually insolvent, having no private property of any kind; and executions issued against him, during that time, were returned nulla bona; but he had never been subjected to any process of bankruptcy. He died more than two years before the passing of said decree, and after the appointment of the commissioners.
    Hartford,
    June, 1851.
    The firm of Jerome & Grant consisted of Noble Jerome and Z. C. Grant. Jerome is still living.
    In the decree of the court of probate the following facts were found. The estate of Z. C. Grant was represented insolvent; and it appeared from the inventory returned, that all his estate embraced therein was his separate property. From the report of the commissioners, it appeared, that the amount of separate claims against his estate, found due and allowed, (except last sickness and funeral expenses,) was 6,478 dollars, 44 cents. There was also an additional claim of 2,248 dollars, 86 cents, allowed by the commissioners, as a separate contingent liability, arising out of the indorsement of certain promissory notes by Z. C. Grant, for which, by the failure of the maker to pay them, at their maturity, and by due notice of their dishonour, the estate of Z. C. Grant had become liable. It appeared also from the report of the commissioners, that the sum of 2,229 dollars, 44 cents, was justly due from the late company of Z. C. & C. S. Grant. From the same report, it further appeared, that there was justly due from the late company of Jerome & Grant the sum of 344 dollars, 16 cents. From the administration account, accepted by the court of probate, it appeared, that the separate claim of the Bristol Manufacturing Company, allowed by the commissioners, amounting to the sum of 2,187 dollars, 67 cents, being secured by a lien on the stock of that company, belonging to the estate of Z. C. Grant, had been paid in full, by the administrators, thereby reducing the amount of separate claims against his estate to 4,290 dollars, 77 cents. The total liabilities of that estate, (exclusive of some interest,) from separate and partnership claims, amounted to 8,463 dollars, 8 cents. There had also been paid to Bennet, Bulkley & Clark, creditors of Z. C. & C. S. Grant, from property other than that inventoried as the estate of Z. C. Grant, the sum of 650 dollars, 15 cents, reducing the amount found due from the company of Z. C. & C. S. Grant, to 1,579 dollars, 29 cents. After deducting all losses and paying the funeral charges, last sickness expenses, and the expenses incurred in the settlement of the estate, including an allowance for the widow’s support, there remained in the hands of the administrators 5,530 dollars, 65 cents.
    The court of probate thereupon ordered, that the administrators on the estate of Z. C. Grant pay to all the creditors, including both the separate and partnership creditors, (except Bennett, Bulkley & Clark, to whom was to be paid a proportional dividend on the balance due to them, and except the separate claim of the Bristol Manufacturing Company, which, having been secured by lien, had been paid in full, except also the last sickness expenses and other privileged claims, which had been paid in full,) the sum of 65 cents and 3 mills on the dollar; and this being done, the estate would be settled.
    From this decree Hiram Camp, one of the separate creditors of the estate, appealed, assigning the following reasons:
    First, that by the decree, the separate property of the deceased in the hands of the administrators, is to be divided equally, in proportion to their several claims, among the separate creditors of the deceased and the partnership creditors of Z. C. & C. S. Grant and Jerome & Grant, notwithstanding the separate property is not sufficient to pay in full the separate creditors; whereas the court should have ordered the separate creditors to be first paid out of the separate property, and the balance (should there be any) to be divided among the partnership creditors; that in thus placing the separate and partnership creditors upon an equality, with reference to the separate estate, the court mistook the law:
    Secondly, that the report of the commissioners was made to the court of probate on the 5th day of September, 1847, and the administrators have since, at different times, paid out of the separate property to some of the creditors in full, to some in part, and to others not any thing; it was therefore the duty of the court of probate, in making an order of distribution, that there might be no inequality among those entitled to dividends, to have computed the interest on said claims from the time of rendering the commissioners’ report to the passing of the order, and to have ordered a dividend on the amounts then due, including both principal and interest; whereas the court of probate ordered to be paid a dividend only upon the sums due to the creditors of the estate, on the 5th day of September, 1847.
    The questions of law arising in the case were reserved for the advice of this court.

      Dutton and C. Ives, for the appellant,
    contended, 1. That in this case the separate creditors should be first paid out of the separate estate of the deceased, before the partnership creditors were allowed to share therein. In support of this position they urged the following considerations.
    First, upon the death of a member of a partnership, the partnership is dissolved, and, at law, all its creditors must look exclusively to the surviving partners for the satisfaction of their several claims. Pendleton v. Phelps, 4 Day, 481. Sturges v. Beach, 1 Conn. R. 509. Alsop v. Mather, 8 Conn. R. 587. Filley v. Phelps, 18 Conn. R. 294. 300, & seq.
    Secondly, courts of equity, however, in case there is no solvent surviving partner, will permit the partnership creditors to satisfy their claims out of the separate estate of the deceased, subject to the limitations and restrictions of other well settled equitable principles. See the cases cited above.
    Thirdly, in this case, it is not claimed, that Jerome, the surviving partner of the firm of Jerome & Grant, ever has been insolvent since his partner’s decease; therefore, the court of probate, sitting as a court of equity, could not legally decree, that the partnership creditors of Jerome & Grant should share equally with the separate creditors of Z. C. Grant in the distribution of his separate estate.
    Fourthly, there is no admissible evidence that upon the death of Z. C. Grant, or afterwards, his surviving partner in the firm of Z. C. & C. S. Grant, was insolvent. This fact, if of any importance, is a material fact, which the commissioners alone had power to find; and they not having found it, and no steps having been taken to amend or set aside their report, it is not made to appear, and the law raises a presumption in favour of solvency and life. Hotchkiss v. Beach, 10 Conn. R. 232.
    But fifthly, if the fact of C. S. Grant’s insolvency is established, it is of no avail; for it is well settled, by courts of equity, in Great-Britain and this country, that in the distribution of partnership effects, partnership creditors are preferred; and a like preference is given to separate creditors in the distribution of separate estate. Murrill v. Neill, 8 Howard, 414. McCulloch v. Dashiell's admr. 1 Harris & Gill, 96. Robins v. Robins, 7 Barb. Law & Eq. R. 378. 1 Sand. Ch. R. 348. Wilder v. Keeler, 3 Paige, 168. Payne v. Mathews, 6 Paige, 20. 3 Kent’s Com. 65. & n. (6th ed.) Allen v. Wells, 22 Pick. 450. 454.
    Sixthly, to this general rule there are some eccentric exceptions in Great-Britain; and it is there held, that if there are absolutely no joint effects even of the smallest amount, or no solvent partner, or no separate debts, the joint creditors shall share the separate estate equally with the separate creditors. So too, where in bankruptcy, the petitioning creditor is a joint creditor, the commission being considered in the nature of an execution. And the joint creditors can take the separate estate, upon paying the separate creditors in full. The two first exceptions are the only ones affecting this case. They have no foundation in reason, and rest solely upon the authority of precedent. They have been wisely repudiated, by the courts of this country.
    Seventhly, the decree in this case is wrong, even under the English rule; for at the time of the decease of Z. C. Grant, there was some partnership property belonging to the partnership of Z. C. & C. S. Grant, in the hands of the surviving partner; and in the case of the partnership of Jerome & Grant, the surviving partner was not insolvent.
    Eighthly, the separate creditors having contributed to the separate estate, and this estate not having been augmented, by the partnership creditors, strict equity requires, that the claims of the former should be first satisfied out of the estate which they alone created.
    Ninthly, the courts of Connecticut having given the partnership creditors the preference in the distribution of partnership property, and thus adopted one branch of the rule of distribution recognised in other equity jurisdictions, consistency would seem to require, that the other branch of the rule should not be repudiated.
    Tenthly, the assets in this case are legal, and not equitable; the claims of the separate creditors are legal claims, while those of the joint creditors are only equitable; and it is a well settled principle, that where the equities are equal, the legal rights must prevail. Wilder v. Keeler, 3 Paige, 172.
    Eleventhly, it is begging the question to say, that the separate creditor gave credit to the individual alone, while the copartnership creditor trusted equally the partnership and each member thereof. As a practical fact, it is not true; and theoretically, as every man is supposed to know the law, the creditor of a copartnership, when he gives credit, knows that he bases his claim at law upon the separate estate of a partner, the moment that partner dies; and he knows, that he bases it also in equity, when the partner dies, leaving only sufficient separate estate to pay his separate creditors.
    Twelfthly, partnership debts are only in a limited and qualified sense, joint and several. The individual members cannot be sued alone for a partnership debt; and in case of the death of a partner, the partnership debt survives to the survivors.
    Thirteenthly, the statute directs the payment of “all debts, as allowed, in proportion to their respective amounts.” Stat. 361. § 61. This is almost identical with the language used directing the distribution of assigned estates. Id. 366. § 78. In the distribution of assigned partnership estate, the joint creditors have always been preferred, although separate claims have been proved and allowed. A similar construction of the statute, in the first case, will give the separate creditors the preference in the distribution of separate estate.
    2. That interest should be computed down to the time of the last official act, which, in the case of an insolvent estate, is not the report of the commissioners, but the decree of distribution. Williams’ admr. v. American Bank, 4 Metc. 317. 324, 5.

      Hooker, for the appellees,
    introduced his argument with some preliminary remarks, to the following effect. The rule in equity was formerly as claimed by the appellants, and is still upheld, by some modern adjudications. But it was a rule, not of general equity, but of convenience merely, and a rule in bankruptcy only. Moreover, it has been greatly shaken at times. It never was founded in reason. The only reason ever given for it is, that joint credit is given to joint property. This is simply “artificial reason;” being utterly untrue in fact. Every man who trusts a partnership, looks to the private estates of the partners. He gives credit to private property, because he knows he can attach private property for his debt. Partnership property and credit make private property.
    He then contended, 1. That partnership debts are now regarded in equity as joint and several. It was formerly held, that estates of deceased partners could not be proceeded against at all, primarily, upon partnership claims, but that such claims could be enforced against such estate only through the equities subsisting between the partners. This principle is now entirely repudiated. It rested upon the old principle with regard to the joint character of partnership debts, and fell with it. It was afterwards for a long time held, that the right to proceed primarily against the deceased partner’s estate, was limited to the case of insolvency of the surviving partner; but as the principle became more fully settled and acknowledged that partnership debts were joint and several, this distinction fell before it, and the broad principle has become established, that the partnership creditor may resort at once to the estate of the deceased partner, whether the survivor be insolvent or not. If the deceased partner’s estate pays more than his share of the partnership debts, his administrator has a claim on the other partner to that amount, so that the estate is made good. Thus the rule works no injustice. We shall find the ablest elementary writers declaring, and that the old rule, absurd in its origin, shaken in all its principles, is upheld only by the maxim of stare decisis. 1 Sto. Eq. Jur. § 676. and notes. Coll. Part. 68 to 76. 337 to 347. Devaynes v. Noble, 1 Meriv. 529. S. C. 2 Russ. & Mylne, 495. Wilkinson v. Henderson, 1 Mylne & Keene, 582. Hamersley v. Lambert & al. 2 Johns. Ch. R. 508.
    2. That while it is a rule both of law and equity, that partnership claims shall be paid in full out of partnership property, before private debts can be paid from that fund, yet this fact does not furnish a reason for the converse rule, that private debts shall first be paid in full out of the private estate, to the exclusion of the partnership debts; for private property is always attachable for partnership debts, while partnership property is not for private. The entire property, both joint and private of partners, is thus liable for partnership debts, and as such becomes the basis of partnership credit. And there is no good reason why the intervention of bankruptcy or of death, should introduce a new rule of liability. To such an extent is this rule applied, that where a partnership creditor attaches private property, and a private creditor afterwards attaches the same property, the partnership creditor retains his lien, although his claims may exhaust the property. Here the conflict is direct. Allen v. Wells, 22 Pick. 450. And the same point would undoubtedly be so decided in this state.
    3. That it follows, that if partnership debts are joint and several, they should be treated, as against the private estate of a partner, in all respects, as the private debts, and should be paid pari passu with them from the private estate. 1 Sto. Eq. Jur. § 676. note. Coll. Part. § 584.
    The exceptions to the general rule are some of them such as to show a departure from the rule, and that the rule itself would have been abandoned with more consistency, viz. 1. Where the joint creditor is a petitioner for a separate commission against the bankrupt partner. 2. Where there is no joint estate, and no living solvent partner. Neither of these exceptions can be sustained but upon the principle that the partnership debts are several; and that principle should have led, not to the partial, but to the entire abandonment of the rule. See Story on Partn. §§ 378. 380.
    4. That the rule claimed by the appellant, has never been well established; has often been called in question, by the best judges; has always been unsatisfactory to the legal profession; and by many decisions of high authority, both antient and modern, has been wholly repudiated. Allen v. Wells, 22 Pick. 452, 3, 4. Lord Thurlow expressed his decided opinion, that the rule as claimed by the appellees, was the best, and sustained it in the following cases: ex parte Hayden, 1 Bro. C. C. 454. Ex parte Copland, 1 Cox, 420. Ex parte Hodgson, 2 Bro. C. C. 5. Ex parte Page, Id. 119. Ex parte Flintum, Id. 120. Lord Rosslyn acted, for some time, upon the practice established by Lord Thurlow, but afterwards restored the rule adopted by Lord Hardwicke. Lord Eldon, in speaking of Lord Thurlow’s opinion, (17 Ves. 207.,) says, “This subject took a different course at different periods, until the time of Lord Thurlow, who considered it with great anxiety, and having consulted most of the judges, expressed his decided opinion, that the contrary course was best.” See Sto. Part. § 379. n. Eden Bank. 169. Coop. Bank, L. 293, 4. 300, 1. 1 Ashmead 347. Charl. R. 77. 2 Ves. 120.
    The rule claimed by the appellant, is every where spoken of as a rule of mere convenience, and not of general equity, and adopted in bankruptcy. It by no means follows, that if the rule is well established in bankruptcy, it will be imported into our equity system, and become the general rule of administration in cases of conflict between joint and separate creditors.
    As an evidence that eminent jurists regard the rule as claimed by us to be the more equitable, we would advert to the fact, that it is established, by the modern code of commerce of France. That code (art. 534.) provides, that the creditor holding a joint and several obligation of the insolvent, and other persons who are also insolvent, shall participate in the dividends of all their respective estates, until he shall be fully paid. Story on Partn. § 363. note.
    5. That if such a rule exists, it does not apply to a case where there is no joint estate, and no living solvent partner. Sto. Partn. § 380. 8 Law Reporter 171. Eden Bank. 172. In this case, it is agreed, that C. S. Grant, the surviving partner of Z. C. & C. S. Grant, died shortly after Z. C. Grant, and more than two years before the decree appealed from was made; that he was, at the time of his death, and of Z. C. Grant's death, wholly insolvent, having no private property of any kind, and executions issued against him were returned nulla bona, but he had never been subjected to any process of bankruptcy; that there was no partnership property of any kind, except about 700 dollars which came into the hands of C. S. Grant, as surviving partner, and was immediately after attached, by Bennett, Bulkley & Clark, on a partnership claim, and was afterwards, during the life of C. S. Grant, sold on their execution, and in part payment thereof. Whatever may be held with regard to the liabilities of Jerome & Grant, said Jerome being still living, and not found to be insolvent, yet we claim, that the case of the creditors of Z. C. & C. S. Grant comes within the above exception.
    First, there was no partnership property. There was none at all, at the time of making the decree, although it was in existence at the time of Z. C. Grant's death, and for a short time after. The former date, rather than the latter, should determine the rights of the parties. The question is, what did equity then require? Was there then any partnership property the existence of which affected the rights of the parties? Besides, during the whole of the time that the estate of Z. C. Grant was in settlement, the partnership property was under incumbrance, to the amount of more than its value. The fact that it was not attached, until after Z. C. Grant's death, cannot affect the case. It was under incumbrance, and withdrawn from the reach of the creditors of the partnership, during all the time that Z. C. Grant's estate was in settlement. Sto. Partn. § 380. It must be “an available joint fund, and not purely a desperate and nominal joint fund.” Eden Bank. 172, 3.
    Secondly, there was no living solvent partner. C. S. Grant died more than two years before the passing of the decree, although after the death of Z. C. Grant. The time of passing the decree, rather than that of Z. C. Grant's
      death, is the date that fixes the rights of the parties. But if otherwise, C. S. Grant, at the time of Z. C. Grant's death, and ever after, was insolvent.
    6. That if there is any such rule in the case of bankruptcy, it does not apply to the case of a deceased insolvent’s estate. Sparhawk, exr. v. Russell, 10 Metc. 305. 1 Bos. & Pul. 547, 8. 5 Serg. & R. 87.
    7. That the Statute provides for the payment of all claims against a deceased person, whether partnership or private, out of his private property, and with no preference of the latter over the former. Stat. 361. § 61. Claims shall be paid in the following order: 1. Funeral expenses and charges of settling the estate. 2. Debts due for last sickness. 3. Taxes and debts due the state. 4. “All other claims, as allowed, in proportion to their respective amounts." The statute gives no power to commissioners to make any other classification than as above. See p. 36. §§ 55. 56. And the judge of probate has no power to classify and apportion to different funds &c. Hotchkiss v. Beach, admr. 10 Conn. R. 232. 2 Conn. R. 354. 7 Smedes & Marsh. 280.
    8. That it has long been a settled practice in this state, in the administration of assets, to allow partnership creditors to receive dividends from the private estate of a deceased insolvent, pro rata with separate creditors.
    9. That as the rule has never been judicially settled in this state, and as that claimed by the appellant rests (in the words of judge Story,) “on a foundation as questionable and as unsatisfactory as any rule in the whole system of jurisprudence,” this is a favourable opportunity to establish a just and equitable one.
    That as to the second reason of appeal, we say: First, that the creditors were entitled to nothing but their dividend on the amount found due by the commissioners; and if the administrator paid any of them before-hand, either in whole or in part, he did it wholly on his own risk, and with no damage to the other creditors.
    Secondly, if the circumstances were such that the administrator, during the long delay in settling the estate, ought to have paid interest on the funds in his hands, then the remedy is in the settlement of his administration account, and not in the decree of distribution. If he ought not to pay interest, then it makes no difference to the creditors generally, whether the funds lie idle in his hands, or are advanced at his own risk to some of the creditors.
    Thirdly, the addition of interest on all the claims down to the time of distribution, while it would have increased the aggregate of the debts, would not have increased the proportion of any one debt to the others, and would not have added anything to the dividend of any creditor.
   Ellsworth, J.

We think the decree of the court of probate appealed from, is correct and should not be reversed.

The facts which are agreed and recited by counsel, need not be particularly recapitulated. It appears, that Zelotes G. Grant, in the settlement of whose estate the question arises, was, at the time of his death, in November, 1846, in partnership with his brother, C. S. Grant, under the name of Z. C. & C. S. Grant; and that C. S. Grant survived his brother but a short time: that he was likewise in partnership with one Jerome, under the name of Jerome & Grant; and that Jerome still survives: that Z. C. Grant owed, at the time of his death, some 10,000 dollars of private debts; the company of Z. C. & C. S. Grant, some 2,500 dollars; and Jerome & Grant, some 350 dollars; that Z, C. Grant's estate was represented insolvent, commissioners were appointed, and they gave notice, according to law, for the presentation of claims: that upon examination, they found due, and reported to the court of probate, certain private debts against Z. C. Grant, and partnership debts against Z. C. & C. S. Grant, of 2,229 dollars, 44 cents, and against Jerome & Grant 344 dollars, 16 cents: that the judge of probate ordered the assets of Z. C. Grant (being sufficient to pay only 65 cents and 3 mills on the dollar) to be distributed, pro rata, among the private and partnership creditors. The appellant, a private creditor of Z. C. Grant, complains of this decree of the court of probate, for the reason that company creditors are allowed to come in pari passu with the private creditors of Z. C. Grant. He makes this important question to us—Whether, according to law, the estate of a deceased partner is liable to be called upon to pay the debts of the partnership, while there is a surviving partner, who is not shown to be insolvent. We think this question does not necessarily arise in this case, as to the debts due from Z. C. & C. S. Grant, as will be particularly stated in the sequel, but only as to the debts due from Jerome & Grant. So far, perhaps, the objection urged by the appellant will lie; and therefore, it becomes necessary for the court, in order to meet the whole case, to examine and decide the general question. This we are more willing to do, because the question is one of great practical importance and of frequent occurrence, much discussed and variously decided elsewhere, but has not received adjudication in our courts.

The estate of Z. C. Grant having been represented insolvent, commissioners appointed and notice given to bring in claims, it was necessary, that within the time appointed by the court, which can never exceed eighteen months, every claim upon the estate should, if ever, be presented to the commissioners for an allowance; and any claim not so presented, can never afterwards be paid, except only out of some newly discovered estate. The door is, therefore, absolutely closed against any and all claimants. All the estate in the executors’ hands, is, by order of the court, distributed among the creditors, as soon after the expiration of the time limited and the return of the commissioners’ report, as is found consistent and practicable.

It is then of vital importance to settle correctly what is intended by the word “claims” in the fifty-fifth section of the statute regulating the settlement of estates. This section provides, that the creditors shall exhibit their claims to the commissioners for allowance; and then the sixty-first section declares, that the payment of claims presented and allowed against the estate, shall, after deducting the expenses of the last sickness and the funeral expenses, the taxes, and debts due the state, besides what is set to the widow, be paid, in proportion to their respective amounts.

We think a debt due from a company or partnership, though a member of the partnership is surviving, is a debt or claim against the estate of the deceased partner, which may be presented to, and be allowed by, the commissioners; because, first, it is within the fair and just construction of the language and the object of the statute; secondly, because a partnership debt is several as well as joint; and thirdly, as to most of the debts in question, it is proved there are no means for payment, but the assets of Z. C. Grant.

First, then, as to the statute. The intention of the legislature, as the statute shows, is to have an insolvent estate fully and finally settled and the avails apportioned among the creditors, at an early day; and that no creditor shall participate in these avails, who did not present his claim within the time allowed. What now, we ask, shall a creditor having a claim against the partnership do with it, in order to secure its payment? Is he driven to commence a suit, at once, against the surviving partner, because he is, or may be, supposed to be solvent? And if he is in fact solvent, he may, before judgment is obtained against him, become insolvent: so he may abscond from the country, or he may have no property that can be taken in execution, and in the mean time, the limitation of presenting claims against the estate of the deceased partner takes effect, and the creditor becomes hopelessly remediless. The surviving partner, too, has a deep interest in the presentation of claims to the commissioners. How else will he be safe, if the partnership shall, in the end, turn out to be indebted to him? He, no more than these creditors of the partnership, can come in afterwards for a share of the estate. Why then is not this a claim and a debt, within the proper meaning and necessities of the statute? Claims much more uncertain and contingent, if indeed there be here any uncertainty, are presented and allowed by commissioners, every day; and this must be so, or they would be entirely lost. Among the claims reported by these very commissioners, is an indorsement of a note for 2,248 dollars, 86 cents, which was contingent, when reported, but became certain, afterwards. The company had indorsed a note which was not then due, but it was afterwards dishonoured by the maker, and the indorsers were compelled to take it up. Thus they obtained payment of their debt in the same proportion with others, which would not have been done, had they not presented the indorsement to the commissioners within the time allowed by law. In the case on trial, the claim was presented and allowed in the same way as contingently just and true. When, we enquire, did this debt cease to be a claim against both and each of the original debtors? It was so, before the death of Z. C. Grant. Did his death extinguish the debt, or discharge his estate? His death might extinguish the legal remedy on the joint undertaking; but how could it affect the claim, the real indebtedness itself? Is not the debt due from both debtors as before? It may be true, that a certain specific remedy is gone, and that, as betwen the partners, the surviving partner owes the whole debt, and must, in the end, pay it. But what has the creditor to do with this question? It may be so, and it may not be so. Besides, credit may have been given wholly to Z. C. Grant. His estate is his representative; and as he was himself liable, his estate ought to continue to be so. Certain it is, the debt could have been collected out of his separate estate, while in life. Why not, then, after his death? Nothing but a form lies in the way; and this cannot be urged against a simple presentation to commissioners.

In the states of Massachusetts and Mississippi, where there are statutes similar to our own, their courts have taken a similar view of this subject with ourselves. They place their decisions, as we do, upon the language and intent of their statutes; and they cut loose from the conflicting decisions and unsatisfactory distinctions, which are to be found in the English books. Sparhawk v. Russell, 10 Metc. 305. 307. 7 Smedes & Marsh. 280.

We come to the second reason already mentioned, to wit, partnership debts are several, as well as joint. We do not say, that this is true of all joint liabilities, such for instance, as the liability of a principal and his surety; but it is true of partnership debts, and of all debts where the persons indebted were the original debtors, all of them recipients of the consideration received. This will appear to be the good sense and reason of the thing, if we will, for a moment, lay aside the difficulties which arise from looking at the established forms of redress in courts of law and equity, and which will be particularly noticed in the sequel.

If two or more persons borrow money, or take up goods, on credit and their joint undertaking, does not each one owe the lender of the money, or the vendor of the goods, the whole sum due? And as much so, as if he had acted alone, in the transaction? While the debtors were living, could not the creditor levy his execution upon the property of either one of them? And so, if one is discharged by bankruptcy, does not the other remain liable as before? Even if one of the debtors be sued alone, he can only object in abatement of the action, which goes simply to the form of the suit, and not to the indebtedness itself. If he does not object in abatement, the proof of a joint debt is proof of his individual indebtedness to the whole amount. And so now, by statute, when the declaration sets out a joint indebtedness, proof of the indebtedness of one is sufficient to subject him, without the other. Now, none of this would be proper or just, if a partnership debt is not considered to be several, as well as joint; if each did not owe the whole, as if he were alone.

The reason they cannot be sued severally, as well as jointly, where the security is only in form joint, is, that as both debtors were at first liable jointly, the form of the judgment, which either may have to pay, shall continue to shew the same joint indebtedness. And this is because the joint debtors are particularly interested in the mode and form of legal proceedings in the case; and because one suit at law ought to determine, finally, and among all concerned, every mere joint liability and controversy. So we understand are the authorities. Story, in his Eq. Jur. vol. 1. sec. 162, 3. says: “It seems now well established, as a general principle, that every contract for a joint loan is, in equity, to be deemed, as to the parties borrowing, a joint and several contract, whether the transaction be of a mercantile character, or not; for in every such case, it may fairly be presumed to be the intention of the parties, that the creditor should have the several, as well as the joint, security of all the borrowers for the repayment of the debt.” And he further says, “ the creditors may at once proceed against the assets of a deceased joint debtor, though there be a surviving debtor, just as if the form of the security had been joint and several.” Sir John Leach, master of the rolls, said, in Wilkinson v. Henderson, 1 Myl. & Keene, 582-3: “All the authorities establish, that in the consideration of a court of equity, a partnership debt is several, as well as joint.” Story, in his late treatise on Partnership, § 362. says, the doctrine formerly held on this subject, seems to have been, that the joint creditors had no claim whatever in equity against the estate of the deceased partner, except when the surviving partners were, at the time, or subsequently became, insolvent or bankrupt. But that doctrine has since been overturned, and it is now held, that in equity all partnership debts are to be deemed joint and several. Sir William Grant, in Devaynes v. Nobles, 1 Meriv. 529. 564. says: “I apprehend, by the general merchantile law, a partnership contract is several, as well as joint.” Mr. Collyer, in his treatise on Partnership, p. 580, says: “It is now established beyond controversy, that in the consideration of courts of equity, a partnership debt is several, as well as joint.” The same is held by Chancellor Kent, in Hamersley v. Lambert, 2 Johns. Ch. R. 511. Like views are expressed in many cases, and in some, are authoritatively decided. Sumner v. Powell, 2 Russ. & Mylne, 495. 2 Meriv. 37. Devaynes v. Nobles, 1 Meriv. 589. Collyer on Part. b. 3. c. 3. § 4. Wilkinson v. Henderson, 1 Mylne & Keene, 582. Throop v. Jackson, 2 Younge & Coll. 553. Gow, 358, 9. 3 Kent’s Com. 64. (4th ed.) Hamersley v. Lambert, 2 Johns. Ch. R. 508. Belknap v. Abbot, 11 Ohio R. 411.

The remaining reason for sustaining the decree, to the extent of the 2,229 dollars, 44 cents, due from Z. C. & C. S. Grant, is, that the surviving partner became insolvent, and there was no company property remaining to pay the debt.

The facts are these. C. S. Grant, the surviving partner, died, soon after his brother, Z. C. Grant, but some time before the decree complained of, was made. C. S. Grant was, individually, insolvent at, and so continued to be after, the death of his brother, until his own death, having no property whatever, except for a short time, after his brother’s death, and partnership property, to the amount of 700 dollars, which was under an attachment by Bennett, Buckley & Clark, creditors of Z. C. & C. S. Grant, to a larger amount than its entire value. They attached the property before the commissioners met to allow claims. The commissioners allowed the claim, and after this, judgment and execution were obtained against the surviving partner, as was necessary, and the property was all sold, and the avails applied to extinguish the debt, as far as they would go.

Thus it appears, that at the time when the court of probate decreed the assets of Z. C. Grant to be distributed among the creditors of Z. C. & C. S. Grant, and C. S. Grant, the surviving partner, had died insolvent, leaving no property of any kind, to pay the debts of the company. Of upon the admitted principle in courts of equity, that if the surviving partner is insolvent, the estate of the deceased partner may be proceeded against, this debt of 2,229 dollars, 44 cents, must be paid out of this estate.

The only answer urged to this view, is, that this was not the state of things, at the death of Z. C. Grant, as there was 700 dollars worth of company property on hand. But we think this makes no difference. We take the state of things at the time the court was called upon to decree what distribution of the funds should be made. The line of duty marked out by those facts, is to be pursued by the court. Had the fund, at that time, been subject to an order of a court of equity, as it was to an order of a court of probate, the court would have held the liability of Z. C. Grant's estate to pay the joint debts, to be complete and absolute. The court of probate must do the same.

There is a debt due from Jerome & Grant of 344 dollars, 16 cents, which stands perhaps on a ground somewhat different. Jerome is still living; and it does not appear but that he is entirely solvent. It does not, it is true, appear, that he is certainly solvent, or that he is within the limits of the state; but it is claimed, that in the absence of proof to the contrary, these things will be presumed. Let it be so. Then we have presented the grave question, so learnedly and elaborately discussed at the bar. Can the estate of a deceased partner be proceeded against for the payment of company debts, when there is a surviving partner, who is of sufficient ability to pay them?

We suppose, that since the decision in Ex parte Elton, 3 Ves. 241., this question has been settled in the negative, in England; not however as a general rule of equity, but as a rule of convenience in administering the law of bankruptcy. The history of the rule shews, that it has never met with favour in England, as a rule of justice and equity. It originated in the peculiar modes of proceedings under joint and several commissions in bankruptcy. Lord Hardwicke first laid down the rule in the negative. Lord Thurlow thought it so unjust, that he would not follow it, and laid down the rule to the contrary. Lord Loughborough restored Lord Hardwicke's rule; and Lord Eldon followed in the same track, while he was Lord Chancellor. The language of Lord Chancellor Rosslyn is: This subject took a different course at different periods, until the time of Lord Thurlow, who considered it with great anxiety, and having consulted most of the judges, expressed his decided opinion, that the contrary course was the best, as being the most legal, and therefore held, that the joint creditors should be admitted to prove and take dividends under a separate commission. He considered a commission of bankruptcy to be an execution for all the creditors; and as separate property could be taken on an execution against the partners, so it could be taken under such a commission. Lord Loughborough held this rule would be inconvenient in practice, and restored the more antient rule of Lord Hardwicke, See ex parte Elton, 3 Ves. 238.

So far as any principle of general equity is deducible from what is stated by the learned chancellors, as influencing them to adhere to the antient rule, it is, that as the separate creditors of one partner are postponed, in the distribution of partnership property, to the joint creditors, so the converse should be true—joint creditors shall be postponed to the private creditors of the partners, in the distribution of separate property. But there is an obvious difference between the two cases. Neither partner is permitted to appropriate to his own use company property; nor is the creditor of either partner permitted to take, on execution, company property, to pay his private debts, while there is not enough to pay the company debts. The partner individually owns only what is left to him after paying the company debts and liabilities; and now, at law even, after much discussion and diversity of practice, it is clearly established, that the creditor of one partner, by attaching company property, attaches only the aforesaid residuum. Hence, where there is a joint commission against partners in bankruptcy, it would be the highest injustice, as well as a palpable violation of a clear rule of law, if separate creditors were permitted to take, pari passu with joint creditors.

We think too, joint creditors may be said to give credit with special reference to the property of the company; but to this idea we do not attach much importance; and although it may not be sufficient, of itself, to establish the rule practiced upon by Lord Thurlow; it is clearly a rule of equity, that joint creditors, working through the equities of the partners, shall have a prior lien upon partnership property. But what can be said in favour of the converse of this rule—that joint creditors shall not come in, pari passu, with separate creditors, upon private property? Here there are no equities to be worked out in behalf of copartners. So it is true, that private property may be taken, on a joint execution, even to the entire exclusion of private creditors. It is, in truth and equity, a private debt due from each partner absolutely; and hence, if a joint creditor first attaches separate property, he will take precedence in obtaining satisfaction, unless he is defeated by a bankrupt law.

It is possible, that in some cases, private debts are contracted upon the credit of private property, and joint debts upon the credit of joint property; but this is by no means always the case; nor is it so generally the case, as to render it proper to make it the foundation of a general rule of equity. The exact truth in this particular, cannot well be known, in most cases; and courts of justice have no right to speculate on a possibility, and make it the basis of their judgment. We know, that the creditor usually gives credit, upon considering the whole property and all the responsibilities of his debtors, whether as a partner or an individual; and this is all the court is interested to know. And although joint debtors have rights between themselves, which protect the interest of one of them in the partnership property, from the private debts of the other, worked out by holding joint property to be first liable for joint debts, this is a different case; and therefore the rule is not necessarily to be reciprocally applied.

Nor is it easy to comprehend how it can be any longer held, by enlightened judges, that the creditor of a partnership cannot, upon the death of one of the partners, look directly to his estate for payment, since it is perfectly established that the debt is several as well as joint.

Mr. Collyer, in his work on Partnership, p. 623., (2nd ed.) while admitting that the cases shew the rule to be as claimed by the appellant, says: If this point were decided on principle alone, and without reference to any supposed analogy between the practice in the court of equity and the practice in bankruptcy, it seems clear, that the partnership creditor, as resting on his separate contract, would have a right to come in competition with the separate creditors.

Lord Hardwicke’s rule has received but little favour or countenance in this country. In Bell v. Newman, 5 Serg. & Rawle, 78. Tilghman, Ch. J., in giving the opinion of the court, after discussing the subject at length, and reviewing the cases in the English chancery, rejects the present practice of the English courts. In Allen v. Wells, 22 Pick. 450., there is a like review and a like conclusion come to, by the court. Judge Story, in his treatise on Partnership, § 377. says: “This rule, (the present English rule) although now fairly established, has occasioned much diversity of opinion among learned judges, at different times. It was established at an early period; but was afterwards departed from, and was again re-established; and it now stands as much, if not more, upon the general ground of authority, and the maxim stare decisis, than upon the ground of any equitable reasoning; in truth, it is precisely such a case as may well justify a great deal of argument on each side; and although it has been said, that the equity of this mode of distribution is very plain, because each estate ought to bear its own debts; yet it is by no means clear, that this is not an artificial suggestion, cutting down the difficulty and assuming the correctness of the rule, rather than showing it had its origin and foundation in the principles of natural justice ex æquo et bono.” In his Equity, vol. 1. § 676., he says: “A broader principle is now established, and it is held, that insolvency or bankruptcy is not necessary, in order to justify the creditors of the partnership in resorting to the assets of the deceased partner; and that such creditors may, in the first instance, proceed against the executor or administrator of the deceased partner, leaving him to his remedy over against the surviving partners.”

We will here add, that this last suggestion relieves the case from any real or supposed hardship. If the estate of the deceased partner ought not, as to the survivor, to pay the debt, but the survivor only, and he has ample property, let the estate pay as if it were a several debt; and then the executor may sue the survivor, and get a settlement of the company accounts. If the estate should be found liable after all, as to the survivor, to pay the debt, the presentation allowance of it by commissioners, is the only remedy to accomplish this result. This would have been the case, if both partners were alive; and the death of neither can make a difference, in a case presented to commissioners.

There are many cases in the books, as Lawrence v. Trustees, &c. 2 Denio, 517, Bradley v. Barnwell, 3 Denio, 61. Pendleton & al. v. Phelps & al. 4 Day, 476. Alsop v. Mather 8 Conn. R. 585. Sturges v. Beach, 1 Conn. R. 508., where it is held, that a suit in chancery will not lie to recover a partnership debt out of the assets of the deceased partner, unless the survivor is proved to be insolvent.

Now, without saying how much this rule is to be qualified, by the more recent principle of equity, well established, that partnership debts are in equity several as well as joint, the objection grows altogether out of the mode of proceeding to enforce judgment, and not out of the nature or individuality of the debt. At law, the survivor only can be sued on a joint promise; and if the survivor is able to pay the debt, there is no necessity, and therefore, there is no right, to go into a court of equity; and hence the rule above mentioned. No such technical or jurisdictional objection applies to this case; for here the claim is simply presented to a board of commissioners, the only tribunal which can adjudicate claims upon insolvent estates; and they must allow it, if it is just and right.

Again, it has been urged, that if joint creditors can come upon the private property of an insolvent debtor pari passu with private creditors, then, if we do not allow the rule to work conversely, and permit private creditors to come in upon company property pari passu with company creditors, we give joint creditors an advantage over private creditors. This is so; but it is no other advantage than what appertains to a creditor having two securities over another creditor who has but one. If, because through the equities of a deceased partner, joint creditors have a prior lien on the company property, or in other words, if a partner cannot himself appropriate company property to pay his private debts, to the injury of his copartner; and has no other private interest which can be taken by execution or otherwise, in the property than what remains upon a settlement of partnership accounts; the inequality or advantage does not grow out of an unequal application of a rule of equity, but out of the nature of the debt and property in question. In England, it may be true, and we believe it is, that under their bankruptcy law, creditors who prove their debts, must put themselves upon an entire equality with other creditors.

In Cull. B. L. 145-147., it is said, that a creditor shall not be allowed to prove his debt, unless he swears he has no security, or offers to give up what he has. But this is no rule of equity, nor of fairness even; for we well know, and such is the practice, that if a creditor, by originally taking security for his debt, or by acquiring it, afterwards, by extraordinary diligence, secures to himself the means of paying part of his debt, he is not, thereby, prevented standing upon an equality with others, for the payment of the remainder. Estates are perpetually settled upon this principle; and have been, from the earliest periods of our history. In Findley v. Hosmer, 2 Conn. R. 352. this exact question was made and decided; and the court held, that a creditor might pursue all his remedies until he was paid in full; and that until then, he could not be marshalled out of any of his securities, or defeated in any of the remedies which were opened to others, to collect their debts.

Upon full consideration, we decide, that the rule adopted by Lord Thurlow, is the true and just one, to wit—that the debts of a partnership are in equity joint and several; and that partnership debts, where one of the partners is dead, may, at once, be presented against his estate, though the survivor be solvent and within the jurisdiction of our courts.

We advise that the decree of the court of probate be not reversed.

In this opinion Church, Ch. J. and Storrs and Hinman, Js. concurred.

Waite, J.

I consider the rule to be perfectly well settled, in this state, that a creditor of a partnership, cannot resort to the estate of a deceased partner, while one of the partners is living and solvent.

It was so laid down, by this court, more than thirty years ago. Sturges v. Beach, 1 Conn. R. 507. Swift, Ch. J. in delivering the opinion of the court in that case, remarked, that “Bush,” the surviving partner, “was liable at law, for all the debts; and the creditors, if he was able to pay, could not call upon the representatives of Norton, the deceased partner. It is only on the failure of Bush, that the estate of Norton can be rendered liable in equity. Should a contrary principle be adopted, it might be productive of great inconvenience and injustice.”

The doctrine of that case, so far as my knowledge extends, has ever since been sanctioned, by a course of uniform practice, and has been repeatedly recognised as law, by this court. Alsop v. Mather, 8 Conn. R. 294. Filley v. Phelps, 18 Conn. R. 294. And whatever modern notions may prevail elsewhere, if authorities can govern, there can be no doubt about the law here.

Upon this principle, the court of probate did right in allowing the claims against the partnership composed of the deceased, in his life-time, and C. S. Grant; for although the latter survived the former, yet it is admitted, that he afterwards died insolvent. But, in my judgment, the court erred, in allowing the debts against the partnership, of which Jerome was a member, because he is still living, and it is not shown that he is insolvent.

It is however said, that it does not appear but that such is his condition. The record is indeed silent upon that subject. But according to the authority of the case cited, the insolvency of the survivor is the very foundation of the right to proceed against the estate of the deceased. “There can be no occasion,” said Ch. J. Swift, in that case, “to resort to the estate of the deceased partner, unless the survivor is insolvent." That fact, therefore, must be shown, by the creditor, to enable him to sustain his claim against the estate of the deceased.

Such clearly has been considered the law in relation to solvent estates. And the same reasons apply, with as great, if not greater force, to those that are insolvent.

If every creditor of the partnership may present his claim to the commissioners upon the estate of the deceased partner, and there have it settled and adjusted, and then receive his dividend upon the full amount from the private assets of the deceased, in the language of Judge Swift, “it might be productive of great “inconvenience and injustice.” In many cases, the settlement of such estates would be rendered tedious, complicated and expensive. In the present case, it is very difficult to see how the executors of the deceased can compel Jerome to advance any thing to them, until they have actually paid, at least some portion of the partnership debts; and then only to the extent of his proportion of such payments. This, in some cases, might render repeated dividends necessary. They cannot call from his possession the partnership assets; because he is clearly liable, at law, for all the partnership debts.

But if the surviving solvent partner is required to close up the partnership business, pay off the debts, so far as the assets can be made applicable, and then call upon the estate of the deceased partner for his proportion of the balance of the unsatisfied debts, the settlement of the estate becomes simple and unembarrassed. And no injustice is done to the partnership creditors. They are to resort, in the first instance, to the surviving partner, and having exhausted his funds, if their debts are unsatisfied, they may then proceed against the estate of the deceased for the balance.

For these reasons, I think the decree in the court of probate, directing a dividend to be paid upon the debts due from the partnership composed of the deceased and Jerome, was erroneous, and ought to be set aside.

Decree of probate affirmed.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Carrington against The town of Farmington.

      Hartford,

    1851.
    The statute for the assessment and collection of taxes, passed in 1850, does not repeal that part of the old statute allowing towns to lay a tax on the list made out according to few. Therefore, where a town, in October, 1850, laid a town tax on the assessment list of October, 1849, which was the assessment list of that town then last made out, and on which, the, annual tax of 1849 had been laid and collected, it was held, that the tax of 1850 was legally laid.

      This was a case submitted to the court on a statement of facts, agreed to by the parties, under the statute of 1848. Stat, 109, 110. § 211. The case embraced the following facts.
    The town of Farmington, at its annual meeting, holden on the first Monday of October, 1850, laid a town tax of 4 cents on a dollar, on the assessment list of October, 1849; which was the assessment list of that town then last made, and on which an annual tax was laid in October, 1849, and duly collected.
    This tax was, in all respects, legally laid, if it could be legally laid by said town, upon said assessment list. But Carrington, the plaintiff, claims, that said tax could not be legally laid upon said assessment list, in consequence of the alterations in the principles of taxation, introduced by the act of May, 1850, upon the subject of taxation, and the repealing clause of that act.

      Carrington is a tax payer of the town of Farmington; and the tax assessed against him, under said vote of the town, and on said assessment of 1849, is 43 dollars, 15 cents. This tax he refuses to pay, on account of the illegality of the same; and the question submitted to the court, is, whether the tax was legally laid.

      Hooker, for the plaintiff,
    contended, That the tax laid in October, 1850, on the list of 1849, was not legally laid. In support of this position he argued as follows.
    1. That the old law allowing the tax to be laid on the list of 1849, was repealed, by the new law. The 7th sec. of the act of 1850, repeals all in the former law inconsistent with the new law. If this express repeal had not been made, the new act would, on well established general principles, repeal all acts and portions of acts inconsistent with it. Is then this provision of the old law inconsistent with the new, that is, can they stand together, can both operate, without the one conflicting with and defeating the other? So far from this, the old law would allow a tax to be laid in such a manner as entirely to evade and defeat the new law. The new law introduced new rules of taxation, entirely at variance with former regulations on the subject, making an assessment list under the one an entirely different thing, in its elements and composition, from an assessment under the other. In the first place, by the new law, (§ 1.) all personal property is made taxable at 3 per cent. in the assessment list. By the old law, it was rated at 6 per cent. By laying the tax on the old assessment list, property which the law makes taxable at only 3 per cent., is compelled to pay taxes on a basis of 6 percent., or to pay just double the amount of tax that the law intends. Secondly, by the new law (§ 2.) much personal property is made taxable, that before was exempt, particularly vessels.
    By laying the tax on the old list, all this property escapes taxation. Property which the law has declared taxable, is not taxed; and the deficiency has to be made up, by an increased tax on other property. By §§ 3 and 4, turnpike stock, and property employed in merchandise, or manufacturing, &c., and belonging to persons residing out of the state, is made taxable, when it was not so before. Thirdly, by the new law, every tax-payer is entitled to a deduction of 300 dollars from his list. This is his legal privilege, which he has a right to insist upon. By laying the tax on the old list, he is deprived of the benefit of this provision.
    It is to be observed that the phraseology employed in this section, is “shall he exempt from taxation.” It cannot therefore be claimed, that the new law simply directs how the assessment shall be made, leaving the towns to lay their tax on the new or the old, at their option. The 300 dollars, is not merely to be deducted from the list, but is to be “exempt from taxation.”

    2. That the effect of the tax law just passed (session of 1851,) will furnish some aid in support of this position. In the first place, § 51. repeals all former acts inconsistent with the new one. This new law therefore has not repealed the old law allowing the tax to be laid on last year’s list, unless the act of 1850 effected the same repeal; since the language of the repealing clauses of both is the same, and the old law is no more inconsistent with the act of 1851, than with that of 1850. Secondly, the repealing clause of the act of 1851 clearly applies to the act of 1850, and repeals it; as there is a clear inconsistency between the two. But if the old law is not repealed, a tax can legally be laid next fall on the list of 1850; as that list was made in accordance with the law as it then stood. Can it be supposed, for a moment, that this can be done? And yet the law of 1851 no more repeals the law of 1850, than the law of 1850, repealed the law that preceded it, with regard to the mode of making assessments. Thirdly, the law of 1851 provides (§ 6) that certain property shall be “exempt from taxation,” much of which was taxable under the law of 1850, and therefore has been included in the lists of 1850. Can it be pretended, that in spite of the law of the state declaring these articles exempt from taxation, any town may, at its pleasure, go on and tax them?
    3. That if the old law allowing a tax to be laid on a prior assessment, is not repealed, it is yet suspended and inoperative, in cases where an intermediate enactment has established a new system of assessment, and abolished the old.
    If it be said, that this is a novel kind of repeal, that the statute must either be wholly repealed, or in full force, we reply, that it is the temporary operation of the old law rather than any thing fundamental in the law itself, that conflicts with the new law. The latter repeals only such acts and parts of acts as do thus conflict. We can see no impropriety, then, in such an application of the repealing clause as will suspend, or render temporarily inoperative, the old law, while leaving it to operate where it can do so, without conflicting with the law.
    In 16 Peters, 362. the court, in speaking of repeals by implication, says “there must be a positive repugnancy between the provisions of the new law and the old, and even then the old law is repealed, by implication, only pro tanto, to the extent of the repugnancy.”
    4. That the old law allowed taxes to be laid on the assessment list last made out according to law. The list of 1849, at the time the tax was laid on it, was not a “list made out according to law.”
    A phrase of this kind, in its application to a subject matter, would perhaps generally mean “made out according to the law as it was at the time.” But it seems clear, that a different meaning was intended here. In the first place, we should expect from the reason of the thing, that the legislature, in allowing a tax to be laid on an old list, would make it a condition that the list should be in conformity with the present law, that it should not be made under a law defective, and perhaps unequal and unjust, and therefore repealed.
    Secondly, the phraseology used by the statute, is, (Stat. 141. § 31.) “on the assessment list last made out according to law, or on the assessment list which shall next thereafter be completed, by the assessors and board of relief.” The condition that the list should be according to law, is confined to back lists, and is not extended to future ones. Why this distinction? Is it not just as important that the new list be a legal one, as that the old should be?

    The only reason for the distinction is, that the new list would of course be made out according to any new law that might have been passed, while the old one might have been made before the new law, and thus have become illegal. The same distinction is preserved in the old statutes. Stat. 459. ed. 1821. Acts of 1826, p. 95, If by this term the statute had intended simply a list made out in legal form, or a legal list, it would certainly have have used the same language with regard to both back and future lists; and no reason can be conceived for making a distinction. Thirdly, the Rev. Stat. 611. § 38. provides, that the “assessment list in each town, as the same shall annually be made and corrected by the assessors and board of relief, according to the provisions of this act, shall be the list on which all county, town, society, school district and highway taxes shall be laid.” The act of 1850 comes in substitution of certain preceding sections in the act in the Rev. Stat., and made the old statute precisely what it would have been, if the act of 1850 had been embodied in it. The 38th section retains all its original force, and applies to the act, as thus amended, precisely as it applied to the act before amendment. After the passage of the act of 1850, therefore, a list, to be legal, under the 38th section, must have been made “according to the provisions of the act” as thus amended, i. e. according to the act of 1850. And as all taxes must be laid (§ 38,) on a list made out according to the law, as thus amended, no tax could legally be laid on a list not so made out. Consequently, a tax laid in Oct. 1850, on a list made out according to the law of 1849, and not according to the law of 1850, could not be legally laid.
    5. That it would seem to be the intention of the statute, that taxes should be laid on the nearest list; and the reason of the thing is against going back, a whole year, to a list on which a tax has already been laid, and which does not represent the men who vote the tax and are to use the money. It is said to have been customary for the towns to hold their annual meetings and vote their taxes, in the spring; and this provision of the law is supposed to have been intended for that state of things. In Montville v. Haughton, 7 Conn. R. 547. Daggett, J., in giving the opinion of the court, says: “I believe, in some cases, the tax is laid on the list last perfected; but I do not see the reason of it. Taxes are laid for the current expenses of the year. The basis of them should be, therefore, the taxable estate of the year.”
    6. That the authorities on the general subject of repeal by implication, are in favour of our position. Davies v. Fairbairn, 3 How. U. S. 636. 644, 5. Commonwealth v. Cromley, 1 Ashmead, 179. Commonwealth v. Kimball, 21 Pick. 373. 376. Nichols q. t. v. Squire, 5 Pick. 168. Bartlet & al. v. King, 12 Mass. R. 537. 545. Dwarr. Stat. 675.

      Cowles, for the defendants,
    insisted, That there is no inconsistency between the provisions of the statute of 1850 and the statute on p. 141 of the Rev. Statutes, under which the town have acted.
    In the first place, they do not relate to the same thing—(the same subject matter.) One statute prescribes duties to towns, under certain penalties. Rev. Stat. 141. The other statute,(acts of May, 1850, p. 69.) prescribes certain rates of taxation upon property, what property shall be taxed, how valued and set in the list, what property shall be exempt, prescribing certain duties to assessors and board of relief.
    Secondly, they are not designed to accomplish the same object.
    The statute on p. 141. of Rev. Stat. is, to oblige towns to grant annual taxes to defray their annual expenses. The new statute is for the assessment and collection of taxes, laying down certain principles of taxation, an addition to the old act on that subject, to perfect and complete the lists of all persons liable, to pay taxes.
    But it is said, that towns can so lay a tax, as to evade the provisions of the new law. This may be the fault of the legislature, in not providing against such a contingency, or it may have been designed for the purpose of enabling towns to perfect and establish their lists before the laying of a tax on the same, under the new system.
    Thirdly, if any alteration in our tax laws would repeal the statute under which the town have acted, then the various alterations that have been made heretofore, have long ago repealed the law. See alterations 1844, 1847, &c. &c. Statutes of 1821, p. 415. Montville v. Haughton, 7 Conn. R. 543. 547.
    Fourthly, the law does not favour repeal, by implication. Snell v. Bridgewater Cotton Gin Manuf. Co. 24 Pick. 296. Goddard v. Boston, 20 Pick. 407. Commonwealth v. Kimball, 21 Pick. 373. Carter v. Sibley, 4 Metc. 298. Planters Bank v. The State, 6 Sm. & Marsh. 628. Kinney v. Mallory, 3 Ala. 626. Bowen v. Lease, 5 Hill, 221. Mc Farland v. State Bank, 4 Pike, 410. Gorham v. Luckitt, 6 B. Monroe, 146. Bruce v. Schuyler, 4 Gilm. 221. Williams v. Potter, 2 Barb. Sup. Ct. R. 316. Dugan v. Gittings, 3 Gill, 138.
   Ellsworth, J.

Upon the facts agreed in this motion, we think judgment should be rendered for the defendants. We do not perceive any inconsistency between the law of 1850, essentially changing our system of taxation, and the prior law of 1826, authorizing the laying of taxes on the assessment list last or next to be completed. It is true, the amount of a tax may be quite different, as it is laid on the list made under the law of 1850, or under the law in force in 1849; but this inequality might result from taking one list rather than the other for the basis of the tax, and not from the changes in the law of 1850. The law of 1850 directs how an assessment list shall be made up; and if the provisions of that law have not been followed in making up any list, (after the law had gone into force,) the list would be without law and void, and any tax laid upon it could not be collected. But changing the rule of taxation has nothing to do with the question, on which of the lists, 1849 or 1850, the tax shall be laid. It rests with the legislature alone to direct, on what list a tax shall be laid; and the legislature gives the range of two years, and it might give more: it might direct an assessment list to be made only once in three or five years. This latitude may, and, we believe, not unfrequently does, lead to inequality in taxes; but this is the result of the latitude allowed by the law of 1826 rather than anything else. Ever since that statute, and indeed before it, towns could lay a tax two years successively on the same list, while the property taxed had so changed hands that the taxes were actually imposed on persons who had sold their property, and not on those who had bought and enjoyed it. Taxation, at best, is somewhat arbitrary and unequal. But on the whole, it has been thought better to give the range allowed by the law of 1826, than to restrict towns and other quasi corporations to a single list, already made, or to be made. Money is sometimes wanted immediately, so that a tax must be laid on the list last completed to meet the existing emergency, while sometimes delay is practicable; and it is deemed more just and equal to lay the tax on the list next to be completed; as was done, and sanctioned by this court, in Montville v. Haughton, 7 Conn. R. 549. This decision was before the law of 1826.

If the argument of the plaintiff’s counsel is sound, then every modification of the tax law exempting property before taxed, or changing the rates per cent. at which it was taxed, or including property not before taxed, has repealed the statute of 1826; for every modification has changed, to some extent, the relative and actual burden of taxes; but no one has been bold enough to assert such to be the law of the state. The truth is, a statute for making up an assessment list, and a statute giving an election of one of two lists on which to lay a tax, relate to different subjects, and are not incompatible or inconsistent one with the other.

We advise judgment for the defendants.

In this opinion the other judges concurred.

Judgment for defendants.


author: Hinman, J.

text:
    Mansfield against Church:

      Litchfield,

    June, 1851.
    IN ERROR.
    Where the plea to an action of trespass qu. cl. fr. was a general denial of the matters alleged in the declaration, accompanied with notice that the defendant would give in evidence, that the locus in quo was his soil and freehold, and that he had a right of way over it, at the several times when the acts complained of were committed, and that they were done in the lawful exercise of such right; and after a verdict for the plaintiff the judge acting on the trial made a certificate, that the title of the land and the right of way set up were directly in issue, and were decided by the jury; which certificate was ordered to be and was placed upon record; it was held, 1. that the notice was part of the plea, and taken together, they amounted to the same thing as if there had been a plea of title and also of a right of way; 2. that the certificate, whether sanctioned by our practice or not, did no hurt, and was no ground of error; 3. that the taxation of full costs for the plaintiff, shewed, of itself, the facts stated in such certificate; 4. that consequently, the taxation of full costs was not erroneous.
    This was an action of trespass quare clausum fregit and de bonis asportatis, brought by Church against Mansfield.

    The declaration contained four counts; to which the defendant pleaded a general denial of the truth of the matters alledged therein. He also gave notice in writing, that he should give in evidence and offer to prove, on the trial of the cause, that the several pieces of land described in the declaration, were, when the several acts of the defendant are alledged to have been committed, the soil and freehold of the defendant, and he had right to do whatever acts were by him done in the premises; also, that all the acts committed by him, as described in the declaration, were committed by the license, consent and permission of the plaintiff; also, that at the several times mentioned in the declaration, the defendant owned a right of way over the several pieces of land described therein, and that whatever of said acts were done by the defendant, upon said land, were done by him, in the lawful exercise of such right.
    On this issue and notice the cause was tried, at Litchfield, February term, 1851, before Hinman, J. The jury found the issue in favour of the plaintiff, and awarded him 22 dollars, 27 cents, damages, and his costs. The judge

      thereupon accepted the verdict, and made the following certificate: “I certify, that upon the trial of this cause to the jury, upon the plea of the defendant, and the notice by him thereto annexed, the defendant claimed and offered evidence which was admitted, to prove title in himself to the land described in the first count of the declaration, and a right of way in himself over the land described in the second count, at the time of the commission of the trespasses therein complained of; and on these grounds, he claimed, that he was not guilty. And the title of said land and the right of way were directly in question on the trial, and were submitted to the consideration of the jury, who decided the same, and thereupon returned a verdict for the plaintiff. It is therefore ordered, that this certificate be made a part of the record of this court in said cause. Hinman, J.”
    The plaintiff thereupon moved the court to order said certificate to become part of the record, and to tax full costs in his favour. The defendant objected, on the ground that the law would not justify the filing of any such certificate, and because the record could not legally be extended after the verdict of the jury had been returned into court and accepted, and on the ground, that by the statute concerning actions of trespass, the plaintiff could not, in this case, have judgment for any more costs than the amount of his damages found by the verdict; the defendant insisting, that upon the trial of the cause to the jury, neither the title to land nor any right of way was in question; and further, that under the declaration and pleadings, neither the title of land nor any right of way could be drawn in question so as to be decided between the parties. The court overruled the objections of the defendant, ordered said certificate to be made part of the record, taxed full costs for the plaintiff, amounting to 94 dollars, 64 cents, and rendered final judgment for the plaintiff to recover of the defendant the damages found by the verdict and the costs so taxed.
    The defendant thereupon, by motion in error, brought the record before this court for revision.

      J. H. Hubbard and Peet, for the plaintiff in error,
    contended, 1. That the decision of the court allowing full costs in this case, was erroneous.

      The object of the statute in limiting the costs of a plaintiff to the amount of damages recovered, was, to discourage the litigation of matters of trifling importance before the higher courts. But when the title to land, the right of way, or the right to the use of water, are in question, then, as these are important and valuable rights, and as they are at stake, and are to be secured or lost, by the verdict and judgment, the action is not deemed of trifling importance, and they are excepted cases. Rev. Stat. 89. § 152.
    But these important rights are not considered in question, within the meaning of the statute, unless an issue be formed upon them, so as to make them the principal object of the action, and so that the right may be directly decided and settled. Bishop v. Seeley, 18 Conn. R. 389. No lawyer will claim that the title of land or right of way is decided and settled between the parties, unless the record would operate as a bar, in any subsequent action involving the same dispute. The record in this case could not operate as a bar in any future suit, because there is not sufficient certainty upon which of the four counts the jury found their verdict. They may have found the title and right of way for the defendant, and for the plaintiff upon the 3d or 4th counts; and no court can say upon which count or counts the verdict was found. There being no certainty, there can be no bar.
    Full costs are not allowed as compensation for extra expense, when these rights are in question; but because a justice’s court has no power to settle a title to real estate; and when an issue is formed on these important rights, the cause becomes worthy of the dignity and learning of the higher tribunals.
    If the statute was grounded upon the supposition that the expenses of the plaintiff are augmented, by the incidental examination of title, &c., then full costs may be claimed in an action of assault and battery, where the defendant, under the general issue, gives in evidence that the assault was in defence of his title to land, or a right of way. But it is not true, that the expenses are more often increased than diminished, by such a line of defence.
    In this case, the title of land was not in question, within the meaning and intent of the statute, because no issue was formed upon it, and therefore it could not be settled. It is true, it came incidentally in question, just as it might before a justice’s court. It was incidentally resorted to, by the defendant, as a defence against the plaintiff’s claim to damages; just as the defendant might have given in evidence award and satisfaction, or any other defence, under the general issue and notice.
    The plaintiff might have had ample redress before a justice of the peace, where the defendant might have resorted to the same line of defence that he did in the superior court; and the justice would have had jurisdiction to decide every matter that was in dispute between the parties.
    The plaintiff does not aver title in his declaration; nor has the defendant pleaded any title in himself. Then it is obvious, that no title has been in question so that it could be decided.
    2. That the judge’s certificate does not vary the case; and it certainly should not affect the right of the parties. In the first place, the certificate only shows just what the notice does; that title was incidentally in question; it could do no more, without contradicting the record.
    But secondly, the certificate is not provided for, by the statute, and it is novel in Connecticut practice.
    Thirdly, it should have been made, if at all, during the trial, and before verdict. Plympton v. Baker, 9 Pick. 70.

      Seymour

       and Granger, contra,
    contended, 1. That in the action of trespass, the title may be in question so as to entitle the plaintiff to full costs. A contrary doctrine is at war with the cases hereafter cited, and if correct, would annul the statute, which is, in substance, “If in the action of trespass, the title of land or the right of way is in question, the plaintiff is entitled to full costs.”
    This may be the only form for the plaintiff of testing a right of way. That question was certainly decided on the trial in this case, as the record shews. And it could not have been settled under the general denial, without notice.
    How then in trespass is it to be made to appear, that the title or right of way “was in question?”

      It need not appear from the plea.

    If that had been the intention of the legislature, they would have used appropriate language to express it.
    Besides, if that was requisite, in no action of trespass could the plaintiff recover full costs, if the defendant should, under our recent statute, enter a general denial of the declaration. In such a case, although the sole question might be as to the title or right of way, the defendant would, by his general denial, defeat the plaintiff’s right to full costs.
    The fair construction of the statute is—If the question of title or right of way was, in point of fact, tried, the plaintiff is entitled to full costs, whatever the plea may be. Such will appear to have been the construction given to similar statutes, in the cases cited below. And the proper course to determine whether these matters were in question, is, for the judge to find and certify the fact.
    Such has been the practice in New York, previous to and under the statute revision of 1813. Vol. 1. p. 344. There, if the plaintiff recovers no more than 50 dollars, he recovers no costs in the supreme court, unless the title to land come in question. The statute does not provide how it shall be made to appear that the title came in question. Farrington v. Rennie, 2 Caines, 220. Jackson v. Randall, 11 Johns. R. 405. Rogers v. McGregor, 4 Cowen, 531. Hubbell v. Rochester, 8 Cowen, 115. La Farge v. Eames, 1 Wend. 99. Mumford v. Withey, Id. 279. 2 Wheat. Selw. 1045, 6.
    The rule is the same in Massachusetts. Action of trespass, statement filed and notice of justification; held, that the title to real estate was drawn in question, and that the plaintiff was entitled to full costs. Rider v. Hathaway, 2 Metc. 96.
    The decision in Bishop v. Seeley, 18 Conn. R. 389. does not conflict with these views. In that case, the general issue alone was pleaded. No notice of title or right of way was given. No certificate was made, that title was in question. Nothing appeared by the record to have been in question, but the plaintiff’s possession and entry by the defendant.
    In the present case, to the general denial was subjoined notice of title and right of way. The defendant claimed and attempted to prove both, on the trial. These were submitted to the jury, who decided the same. The judge certi

      fied the facts. The record shews these rights “were in question.”
    So, in Connecticut, it has been held, in actions of trespass, under the plea of not guilty, “where the title was almost the only matter in dispute,” that the plaintiff was entitled to full costs. Granger v. Hancock, 2 Root, 88. In this case, the plea certainly did not state that the title was in question; and yet full costs were allowed, because, as a matter of fact, it was in question under the general issue.
    It is objected by the plaintiff in error, that the law will not justify the filing of the certificate. Under our new mode of pleading, some method should be devised, if none exists, to secure a plaintiff’s rights under the statute under which we claim. The court will always see, that all the material facts necessary to secure the rights of parties, are placed on the record. The record is a roll—memorial—of the judge; or remembrancer of the facts in the case. Co. Litt. 260. a. It is a history of the case; and if the fact that the title or right of way was in question, is material, it is the duty of the court to state it in the memorial, i. e. to place it on the record, either by certificate, or by direction to the clerk to enter it; both of which have been done in this case.
    It is further objected by the plaintiff in error, that the record cannot be extended, and that it is too late to move for a certificate after verdict. During the term when any judicial act is done, the roll is alterable in that term, as the judge shall direct. Co. Litt. 260. a. The motion cannot be made before the trial commences; for it would be anticipating what might not happen. Nor during the trial. The court would not suffer the interruption. It need not be done till after verdict; for the verdict may be for the defendant, and thus the motion would be unnecessary. The only proper time is after verdict, during the same term.
    But it does not appear from the record, when it was made. The motion in error contains properly no part of the previous history of the case. That properly only asks for an inspection of a record, presumed to be already made. This court will then either see or presume that the motion for certificate was made in due time.
    2. That if it ought to appear from the pleadings, that these rights were in question, a notice under the general denial of a right of way or of title, is, so far as regards costs, equivalent to a plea of title or right of way.
    Under our new statute, it entitles the defendant to all the rights of a special plea.
    Under the New-York revised statutes of 1829, p. 613. § 3. a plaintiff is entitled to costs, in all actions in which the title to land or a right of way “shall have been put in issue, by the pleadings, or shall have come in question on the trial of the cause.”
    Under this statute, it was decided, that if the defendant, in trespass, instead of pleading a justification, gives notice thereof, the plaintiff is entitled to full costs, though he recovers less than 50 dollars damages. Radley v. Brice, 6 Wend. 539.

      Nelson, J. said “A notice of justification subjoined to the general issue in an action of trespass, is equivalent to a special plea, and as effectually puts the title in issue. The rights of the plaintiff are the same as if the matter set forth in the notice had been spread out in a plea."

       In place of G. C. Woodruff, Esq., who had previously been concerned in the case, and was then attending the legislature at Hartford.

   Hinman, J.

The question raised on this motion, is, whether the superior court erred in taxing full costs in favour of the defendant in error, who, as plaintiff below, in an action of trespass quare clausum, recovered against the plaintiff in error something less than thirty-five dollars damages.

The plea to the action of trespass was, a general denial of the matters contained in the declaration, accompanied with notice, that the defendant would give in evidence, that the land described in the declaration, was the soil and freehold of the defendant, at the several times when, &c.; and, also, that he would prove, that at the several times when, &c., the defendant had and owned a right of way over and across the said lands, and that the trespasses mentioned in the declaration were committed in the lawful exercise of said right. And from the certificate of the judge, before whom the trial was had, it appears, that the defence really made and relied upon, was, the defendant’s title to the land described in one count, and a right of way in himself over the land described in another count; and that on these grounds he claimed, he was not guilty; and that the title to land, and the right of way set up, were directly in issue, and were decided by the jury.

It is obvious, from this statement, that the case falls directly within the words of the exception of the statute, prescribing, that in certain cases, no more costs than damages shall be recovered; and, consequently, the plaintiff was entitled to full costs, unless the form of the proceeding was such as to deprive him of it. Rev. Stat. p. 89. § 152.

The plaintiff in error insists, that unless an issue is directly formed upon the question of title, or right of way, so that the right may be directly decided, that full costs cannot be taxed; and he cites the case of Bishop v. Seeley, 18 Conn. R. 389. as sustaining this position. To a certain extent, he is undoubtedly sustained, by that case. The court held, that, where the record consisted of nothing but a declaration in trespass, with the general issue pleaded to it, nothing was put in issue but the plaintiff’s possession of the land and the defendant’s entry upon it; and although the title might have been incidentally involved in the case, yet, that it was not so involved that it could be decided and the dispute between the parties settled; and on this ground full costs were denied in that case. The decision in that case, went as far, as a fair construction of the statute would justify; perhaps farther than a literal regard to its terms would allow, certainly farther than the courts of New-York and some other states have gone upon similar statutes. Still, we feel no disposition to disregard that decision. As we then said, so we still hold, that it was not the intention of the statute to give full costs in an action of assault and battery merely because the title to land is incidentally involved in it.

But in the case under consideration, the title to land and the right of way were both involved, not incidentally, but directly. These rights were directly within the issue; for the issue, though formed upon the general issue pleaded, yet that is to be taken with the accompanying notice, which is but a part of it; and altogether, they amount to the same thing as if there had been a plea of title, and also of a right of way; and in this aspect of it, the title and right of way claimed, were directly in issue, and were decided by the jury.

That this was so in fact, appears by the certificate of the judge. Whether that certificate is in conformity to our practice, is a matter of no importance: perhaps it was unnecessary, as the taxing of full costs might well enough be considered as, of itself, equivalent to a certificate that such right was involved in the trial. But it can do no hurt; and inasmuch as, by the pleadings, it appears that the title to land and the right of way set up, might be directly involved; and as it is shown, by the taxation of full costs, that they, or one of them, were so involved; we think there is no error in the record.

The other judges were of the same opinion, except Church, Ch. J,, who gave no opinion, being related to one of the parties.

Judgment affirmed.