
    Richard Baker’s Case.
    In case of proceedings in insolvency against a partnership, a partner, whose separate estate pays fifty-five per cent on the debts proved against it, is entitled to a discharge from his separate debts, and to an allowance of five per cent on the net produce of his separate estate, although the joint estate of the partnership does not pay fifty per cent of the debts proved against it.
    On the petition of Richard Baker and William Baker, co-partners in trade under the name and firm of R. & W. Baker, the commissioner of insolvency for this county issued a warrant to a messenger to take possession of their joint and separate estates, and subsequent proceedings in insolvency were had according to law; and the assets of Richard’s separate estate paid fifty-five per cent on all debts proved against it; but neither the assets of William’s estate, nor of the joint estate of the partnership, paid fifty per cent on the debts proved against those estates respectively. At the third meeting of creditors, Richard petitioned the commissioner for a certificate of discharge from his separate debts, and for an allowance of five per cent on the net produce of his separate estate; but the commissioner refused such discharge and allowance for the reason that the assets of the. joint estate did not pay fifty per cent of the debts proved against it. Whereupon Richard appealed to this court.
    
      E. Washburn and W. Grout, for the appellant,
    cited Sts. 1838, c. 163, §§ 8, 21; 1844, c. 178, § 4; 1848, c. 304, §§ 9,16.
   Shaw, C. J.

These proceedings under the insolvent law, St. 1838, c. 163, § 21, where partners become insolvent, are so regulated, as to effect a settlement of the whole estate of the partners, jointly and individually. The statute requires that the assignee keep separate accounts of the joint estate, and of the joint debts proved; and so of the separate estate of each partner; with a provision, that the joint estate shall be applied in the first instance to pay the partnership debts, and the funds of each partner to his separate debts. The effect therefore is nearly the same, as if there were three commissions ; one against the two jointly, and one against each. If then, either one pays more than fifty per cent of his separate debts, he is entitled to the same benefits as if he had been a sole insolvent. The court are therefore of opinion, that the petitioner is entitled to be discharged from his separate debts, provable as separate debts, due from him individually, and not as a copartner, at the time of the first publication. Also, that the petitioner is entitled to his five per cent allowance, although the joint estate would not be sufficient to pay fifty per cent; if in other respects the petitioner would be entitled to the same, if the petitioner was an insolvent under a separate warrant.  