Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. IX.
Socii liable in solidum or pro rata. - Partner of a Company paying the Debts. - Whether Partners are bound to contribute beyond their Stock.
The Creditors of John Macghie v. John Tait
Date: 18 November 1785 Case No. No. 45.
A partner of a company having paid the debts, can only be ranked on the estates of the other partners for a proportion of the sums advanced, corresponding to their respective shares.
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When Douglas Heron and Company stopped payment, the solvent partners contributed £.286,000 to satisfy the most pressing creditors.
Afterwards, the estate of John Macghie, a member of this Company, having been sold judicially, Mr. Tait, as trustee for these contributing partners, claimed to be ranked on that estate for the whole sums advanced; and
Pleaded: The creditors of a Company are entitled to be ranked on the estate of every partner for the whole sums due to them, and to draw a rateable proportion of the effects, provided they do not ultimately receive more than the Company owes; 26th July, 1776, Creditors of Carlisle contra Creditors of Dunlop, (not reported, see Appendix), 23d George III. C. 18.
The claimants here do not stand on a different footing. Their character of partners cannot take away the jus crediti, which payments, so far exceeding their share of the loss, have established in their favour. Nor is it possible to distinguish their situation from that of the creditors, who received the monies contributed, and from whom, if it were necessary, they can still require a formal assignment of all their rights.
Answered for Mr. Macghie's other creditors: The persons who advanced such large sums to save from immediate legal execution their own estates, as well as those of the other partners, are to be considered as trustees for the whole. In claiming retribution, more cannot be demanded by them from the bankrupt partners than from those who continue solvent.
The contrary method of proceeding would be attended with the most fatal consequences. For as each of the bankrupt partners could, in his turn, demand from every one of the socii the same sums for which his own estate has been attached, the whole members of the Company might, in this manner, be involved in one common ruin.
The Lords unanimously found, “That John Tait, trustee for the Duke of Queensberry and others, was only entitled to be ranked on the estate in question, for a proportion of the sums claimed by him, corresponding to the share of stock held by Mr. Macghie, the common debtor.”
Lord Reporter, Justice-Clerk.Act. Abercromby.Alt. A. Fergusson.Clerk, Orme.
Fol. Dic. v. 4. p. 295. Fac. Coll. No. 234. p. 362.
