TUCKER V. OXLEY, 9 U. S. 34 (1809)

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U.S. Supreme Court

Tucker v. Oxley, 9 U.S. 5 Cranch 34 34 (1809)

Tucker v. Oxley

9 U.S. (5 Cranch) 34


Under the bankrupt law of the United States, a joint debt may be set off against the separate claim of the assignee of one of the partners. But such offset could not have been made at law, independent of the bankrupt law.

A joint debt may be proved under a separate commission, and a full dividend received. It is equity alone which can restrain the joint creditor from receiving his full dividend until the joint effects are exhausted.

Error to the Circuit Court of the District of Columbia, sitting at Alexandria, in an action of assumpsit for goods sold and delivered, brought by Oxley,

Page 9 U. S. 35

assignee of Thomas Moore a bankrupt, against the plaintiffs in error. Upon the general issue, the jury found a verdict for the plaintiff below for $143.33, subject to the opinion of the court upon the following case:

Thomas Moore, the bankrupt, carried on the trade and business of a vendue master in co-partnership with one Henry Moore which co-partnership was on 31 March, 1802, dissolved on the terms that Thomas Moore should collect the balances due to and pay the debts due from the joint concern as far as the joint property would extend. Thomas Moore carried on the trade and business of a vendue master on his separate account from that time until 2 September following, when he became bankrupt, and a commission being duly awarded and issued against him, he was duly declared a bankrupt according to the laws of the United States then in force concerning bankrupts, under which the plaintiff was duly appointed assignee.

While Henry & Thomas Moore carried on the business of vendue master in partnership, they became jointly indebted to the defendants, John and James Tucker, in the sum of $106.49, being the balance of account due to the defendants, for their goods sold by H. & T. Moore at vendue. After the dissolution of the partnership and while Thomas Moore carried on business on his separate account, the defendants, the Tuckers, at different times from 19 April to 22 July, 1802, knowing that the partnership was dissolved and that Thomas Moore carried on business on his separate account, purchased of him at vendue, goods to the amount of $113.12, which goods were charged to the defendants, the Tuckers, in the separate books of Thomas Moore without credit being given to the defendants for the joint debt due to them from Henry & Thomas Moore. Thomas Moore being examined as a witness, proved that he intended, at the time of selling the goods to the defendants, to give them credit for the joint debt due to them from Henry

Page 9 U. S. 36

& Thomas Moore but nothing was said or agreed on the subject between him and the defendants, nor was any such credit ever given before his bankruptcy. This action is brought for the price of the goods so sold and delivered by Thomas Moore in his separate capacity. If the court should be of opinion, upon the case stated, that the defendants are entitled to have the joint debt due to them by Henry & Thomas Moore deducted from the sum claimed in this action, the verdict was to be reduced to $16.63, and judgments to be entered accordingly

The opinion of the court below being, that the joint debt could not be set off against the separate claim of the bankrupt, judgment was rendered for the plaintiff for the larger sum, whereupon the defendants brought a writ of error.

Page 9 U. S. 39

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