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15 Miss. 280

Dahlgren v. Duncan

Mississippi Supreme Court

Decided November 15, 1846

Mississippi Supreme Court · decided 1846-11-15

Thomas Fletcher, judge. Charles G. Dahlgren, as administrator de bonis non of Joseph Neibert, deceased, represented his intestate’s estate to be insolvent to the probate court of Adams county, in which his letter of administration had been granted.

Decided 1846-11-15

Mr. Chief Justice ShaeKey

¶1delivered the following dissenting opinion:

¶2I cannot concur in the opinion that the two.statutes referred to, have wrought any change in the law on the question involved. The first, (sect. 80 H. & H. 409) I think, was intended for no other purpose than to do away the old distinction between judgment debts, debts due by specialty, and simple contract debts, by making all of equal dignity, without which such as were superior in dignity would have been entitled to priority in payment. The second (sect. 29 H. & H, 595,) is merely a statute of pleading. For the purposes of a suit, it makes contracts joint and several, which before were joint only. But I do not think it changes any rule in regard to satisfaction. At common law, the creditor of a firm was obliged to sue all the partners jointly ; but, having done so, he had a right to have his judgment satisfied out of the individual property of any one of the partners, as well as out of the joint property of all. Lord Mansfield said, that all contracts of partners are joint and several; every partner is liable to pay the whole. In what proportion the others should contribute, is a matter among themselves. Rice v. Shute, 5 Burrow, 2611.

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