Gates v. Mack & another.

cided in favor of the appellant, holding the former certificate void as to Campbell, for the causes assigned, and no bar to the recovery of the debt against him.

It is now objected, on the part of the assignees and general creditors, that this debt being a partnership debt of Campbell and Longley, it ought not to be allowed as a several debt of Campbell, so as to permit the appellant to claim pari passu with the several creditors, nor until the several debts are paid; and the case of Barclay v. Phelps, 4 Met. 397, and the class of cases, where there are at the same time subsisting several debts and partnership debts, due from the insolvent, are relied on as authority. But the court are of opinion, that these authorities are not relevant and do not apply. If the appellant has any claim, it is because, by the former proceedings and certificate of discharge, the debt originally joint has become several; Longley was discharged by his certificate, Campbell was not discharged, and the debt therefore has become the sole and several debt of Campbell. Such a severance may be effected in various ways; for instance, by statute, where one partner or other joint debtor dies. St. 1799, c. 57; Wilby v. Phinney, 15 Mass. 116. So where two or more are sued on a joint contract, and one pleads some especial matter of discharge as to him, as a discharge in bankruptcy, the suit may proceed against the other who is held in solido.

But without dwelling further upon the general principle, the original insolvent law, still in force, St. 1838, c. 163, § 8, provides, that no discharge of any debtor under this act shall release or discharge any person who may be liable for the same debt, as partner, joint contractor, indorser, or otherwise, for or with such debtor.

Campbell and Longley were partners and joint debtors. Longley has been discharged under the insolvent law; his discharge has not been annulled or impeached, but primâ facie stands good. Campbell has not been discharged, and of course was liable as a sole debtor to the appellant, when he became a second time insolvent. We think the decree of the commissioner, allowing this claim, was right.

Leigh v. Arnold.

LEWIS LEIGH US. WILLIAM F. ARNOLD.

The record of proceedings in insolvency is conclusive evidence of the time of a decree by the commissioner, rejecting or allowing the claim of a supposed creditor.

THIS was an appeal from the decision of the commissioner of insolvency for the county of Hampshire, disallowing a claim against the estate of an insolvent debtor; and upon a motion to dismiss the appeal, because no notice was given pursuant to St. 1838, c. 163, § 4, within ten days, it appearing by the record that the decree was made on the 1st of July, 1850, and that notice was given on the 13th of September following: THE COURT held that the record was conclusive evidence of the time when the decree was made; that parties interested were bound to take notice of it; that the notice of appeal was given too late; and that the appeal must be dismissed. C. P. Huntington, for the appellee.

L. Norton, for the appellant.

INDEX.

ABSENT DEFENDANT.

1. Since the Rev. Sts. c. 90, § 44, a personal action may be maintained against
one who is out of the state at the time of the service of the writ, if an effect-
ual attachment of the defendant's property is thereby made, or if the de-
fendant has previously been an inhabitant of the state, and service of the
writ is made upon him by leaving a summons at his last and usual place of
abode. Morrison v. Underwood, 52.

2. The provisions of the Rev. Sts. c. 92, § 3, for the continuance of an action,
in the cases therein mentioned, from term to term, until notice thereof is
given in such manner as the court may order, may be waived by a defend-
ant, and judgment consented to by him without a previous continuance, pro-
vided the service of the writ is sufficient to give the court jurisdiction of the
case and of the parties. Such waiver and consent may be made and proved
by parol. Ib.

ACCOUNTS.

See EVIDENCE, 10, 11.

ACTION.

1. No action can be maintained by an author for a publication disparaging his
works, in which he has a copyright, without an allegation and proof of spe-
cial damage. Swan v. Tappan, 104.

2. An action on the case for a libel does not survive by law in this common-
wealth. Walters v. Nettleton, 544.

3. An action on the case, for a malicious prosecution, does not by law survive
in this commonwealth. Nettleton v. Dinehart, 543.

4. An action removed from the court of common pleas to this court, on the
affidavit of the defendant or of some one on his behalf, if not entered by
either party at the next term of the court, will not be allowed to be entered
at a subsequent term. Parker v. Jackson, 501.

5. Stay of proceedings in. See CONDITION, 2.

See ABSENT DEFENDANT; ASSUMPSIT; MILL; RAILROAD CORPORA-

TION, 2.

ACTION ON THE CASE.
See CONTRACT, 5.

ADMINISTRATOR.

See EXECUTOR AND ADMINISTRATOR.

ADMISSIONS.

See EVIDENCE, 1, 20; INSOLVENT DEBTORS, 5.

ADULTERY.

See LIBEL, 1.

AFFIDAVIT.

See WRIT.

AGENT.

See PRINCIPAL AND AGENT.

AGREEMENT.

See CONTRACT.

AMENDMENT.

1. The plaintiff, in a declaration against two partners on a lease signed by
their partnership name, having set forth the demise to the defendants, and
their covenant to pay a certain yearly sum, was allowed, after verdict, to
amend, by inserting after the allegation of the demise, the words "yielding
and paying therefor the clear yearly rent," &c., by substituting "rent" for
"sum,” and by alleging that the demise was made to, and the covenant by,
the defendants in their copartnership name. Kendall v. Carland, 74.
2. A plaintiff may, by leave of court, after verdict and judgment in his favor
on one count, amend his declaration by inserting other counts for the same
cause of action, and take a general verdict on all the counts. Ib.
3. Where a joint action of trespass for mesne profits was brought against a
lessee for years and his sub-tenant, the former of whom alone was liable
therefor, the plaintiff was allowed to amend his declaration, by striking out
the name of the defendant who was not liable. Fifty Associates v. How-
land, 214.

See EQUITY, 3; ERROR, 3.

APPEAL.

See ERROR, 1; HADLEY FALLS COMPANY, 1, 2; SUPREME JUDICIAL

COURT, 4.

APPRENTICE.

The insertion of the name of a minor above the age of fourteen years, in the
attestation clause of an instrument purporting to be an indenture of appren-
ticeship, and the execution of the instrument by such minor, are not a suffi-