# Pleasants v. Meng

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Pleasants verſus Meng et al.
Indebitatus Aſſumpſit for goods ſold and delivered &c. The Defendants pleaded that they were certificated bankrupts, and that the cauſe of action aroſe before the bankruptcy; to which the Plaintiff replied, that the certificate was unfairly obtained; and, on the trial of the cauſe, offered teſtimony in ſupport of the four following exceptions–to wit:
* That the debt on which the commiſſion was founded, had been contracted prior to the paſſing of the act for the regulation of bankrupts; 3 State Laws. 644. although a bond had been given for it ſince the Act was paſſed.
* That the petition was exhibited by one perſon, in the name of himſelf and his partner, without any other than the general authority of the partnerſhip; which is not ſufficient for this purpoſe.
* That the Defendants were not copartners at the time the commiſſion iſſued jointly againſt them. And
* That two of the Defendants had not committed any act of bankruptcy prior to the iſſuing of the commiſſion.
The admiſſion of teſtimony upon theſe points was oppoſed by the counſel for the Defendants, who contended, that the certificate was concluſive evidence of the debt, trading, bankruptcy, and conformity; and that fraud in obtaining it, or a concealment of effects, were the only matters which the Plaintiff could now be allowed to prove, according to the deciſions under the 5 Geo. 2. c. 30. which ſtatute only differs, on this point, from our act of Aſſembly, by the uſe of the word fraudulent, inſtead of unfairly; words, however, of ſynonimous import. 3 State Laws 644. ſect. 24. Green B. L. 244. 245. 9. I. Stra. 533. Co. B. L. 352 1 Atk. 79. 208. 2 Wilſ. 140. They urged, that any objections to the form of proceeding could only be taken by the bankrupts, who were likewiſe precluded by their acceptance of a certificate. 2 Stra. 746. 5. Burr. 2628. Term. Rep. 409. and they controverted the power of the Court to unravel, in this way, the deciſion in the commiſſioners, whoſe juriſdiction was competent and concluſive as to all the preceding ſteps.
The Plaintiff’s counſel, having premiſed generally, that where a limitted juriſdiction is eſtabliſhed, the Courts of common law are bound to prevent any infraction of that limitation; 3 Black. Com. 112. 109. and that a Court of limitted juriſdiction can never be veſted with a right to determine upon the legality of its own acts; Ibid. 112. 114. 1. Bac. Abr. 563. Sir. T. Ray. 189. Salk. 548. 1 P. Wm. 476. Cowp. 26. contended, that the Common Pleas had a concurrent authority with the Supreme Court to refrain the commiſſioners of bankrupts within the boundaries preſcribed by the act of ​ Assembly; and that if there was no express provision in the Act of Parliament in England, or in the act of Assembly here, as to the made of ascertaining a violation of those boundaries, yet, by analogy to other special jurisdictions, the proceedings of the Commissioners could not be the proof of their own legality; but, from the nature and reason of the thing, that question must be examinable at another tribunal. 1Bac. Abr. 653.Lev. 288. Caʃ. temp. Hard. 186.145. 2.Bl. Rep. 1145. 2.Wils. 582.–They remarked , that, ‘till the 4 Ann. c. 17. s. 7. no provision was made as to the manner in which a Bankrupt should bring forward his discharge; and that, even under the statute, he was obliged to set forth all the proceedings before the Commissioners, which eventually produced the statute of 5Geo. 2. authorizing the Defendant to plead his certificate . This, however, they insifted, only made the certificate prima ƒacie evidence ; relieving the Defendant from the necessity of stating the petition, trading &c. in his plea, and obliging the Plaintiff to set forth his exceptions in his replication. See 2 Ld. Ray. 1646. Stra. 869. S.C. Co. B. L. 356. Doug. 160.–They then cited many authorities to shew, that since, as well as before, the statute of 4 Geo. 2.c. 30. and subsequent to the the granting the certificate, as well as previously, the debt, trading, act of bankruptcy &c. had all been controverted and enquired into in the Courts of law, in a variety of forms, between a creditor and the bankrupt, between creditors and the assignees ; and, in short, between any persons who were interested. 2Stra. 744. Cowp. 569.Bull.37. Co.B.L. 307. 314. Term. Rep. 409. 573.n.. 2Stra.822. 2Stra. 1042. Barn. 81. 2 Bl.Rep. 725. Cowp. 823. Co.B.L.348. 1Ld. Ray. 724. 1 Bl.Rep. 70. Bull. 40.Palm. 325. Cowp. 427.428. 1Salk.110. Cowp. 398. Bull. 39. 1 Atk. 201. Co.B.L. 71. Cro.E. 13.72. Barn. 160. 2 Stra, 809. 7 Vin. 61. pl. 14. 1 Bl. Rep. 441. Co.B.L. 74. Green.B.L. 44. 1 Burr. 467. 484. &c.–They added, that to prevent the injustice which, in many cases would happen for want of a Court of Chancery, the Courts here are obliged to deviate from the rigorous rules of the common law, and to adopt the principles of equity. Although in England the common law courts cannot enquire into the confideration of a bond, or decree the specific performance of a contract, yet the Courts of Equity will do both; and here, to afford a similar relief, wherever the Chancery would order a deed to be given, our Courts instead of doing that, presume the deed to have been actually given, and adjudged the case accordingly. Thus, in the present cafe, the same reasons which would induce the Chancellor to supercede a commission of bankrupts, will induce this Court to confider the commission as virtually superceded.
SHIPPEN,President– This is an action brought by Samuel Pleasants against John Meng, and three other persons, in which the Defendants have pleaded, that they are certificated bankrupts, an the Plaintiff has replied, that the certificates were unfairly obtained. ​
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If the plea had been drawn up at large, inftead of being entered on the docquet, it muft have been purfuant to the act of Affembly,
“ that the caufe of action did accrue before fuch time as he became
“ a bankrupt;” and the certificate is made by the act only a matter of evidence.
The queftion, now to be decided, is, whether, upon a trial at law, the creditor of a bankrupt may give evidence to controvert the trading, bankruptcy, and conformity? Or, whether the certificate is conclufive proof of all the proceedings before the Commiffioners: And in this cafe it is fortunate that the act of Affembly nearly purfues the words of the ftatute of 5 Geo. 2.c. 30. for, the analogy of the law muft greatly ftrengthen the application of the authorities, and facilitate the decifion of the Court.
The claufe, on which the argument arifes, is thus expreffed, both in the Engliʃh ftatute, and the act of Pennʃylvania: “ And, in
“ cafe fuch bankrupt fhall afterwards be impleaded for any debt
“ due before he became a bankrupt, fuch bankrupt fhall be dif-
“ charged upon common bail, and may plead in general, that the
“ caufe of action did accrue before fuch time as he became a bank-
“ rupt ; and the certificate of fuch bankrupt's conforming and the
“ allowance thereof, fhall be fufficient evidence of the trading,
“ bankruptcy, commiffion, and other proceedings precedent to the
“ obtaining fuch certificate, unleʃs the Plaintiƒƒ can prove the faid
“ certificate was obtained unƒairly, or make appear any concealment
“ by fuch bankrupt to the value of Fifteen Pounds.”
Certain it is, than from the 13 Eliz. c. 7. (at which time Commiffioners of bankrupts were appointed in England) until the paffing of the 5 Geo. 2. a period of about 200 years, there is no inftance that ever the proceedings of the Commiffioners, when called for, were not revife and corrected in the Courts of Law. By the ftatue 5 Geo. 1.c. 24. the bankrupt's certificate might be given in evidence, and was directed to be a full difcharge of any action that fhould be brought by any creditor of fuch bankrupt; yet, it appears by the cafe in 1 Stra. 533. that it was ftill neceffary to prove the act of bankruptcy, befides producing the certificate; becaufe the words, ʃuch bankrupt, related to fuch perfon as was defcribed in the ftatute. Under that ftatute, therefore, the certificate was fo far from being conclufive evidence, that it was not fufficient, without other proof, to fhew that he was an object of the act, by being a trader, and having committed an act of bankruptcy.
What then was the alteration introduced by the 5 Geo. 2.c. 30? It had been found very inconvenient to compel a bankrupt, as often as he was fued, to enter into a proof of all the circumftances which had already been proved before the Commiffioners: This ftatute, therefore, enacted, that “ the certificate fhould be ʃuƒƒicient evidence of the trading, bankruptcy, commiffion,&c.” and here, ex vi termini, we muft inter that this was not the cafe before, as the word ʃuƒƒicient naturally refpects what had been hitherto inʃuƒƒicient. The ftatute, however, does not declare, that the certificate fhall be ​
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incontrovertible or conclufive, evidence, but, in rendering it fufficient evidence of certain facts, which the Bankrupt was before under the neceffity of eftablifhing by fpecific proofs, it has merely transferved the burthen from him to the creditor, with whom it now lies to prove, according to the terms of our act of Affembly, that the certificate was unƒairly obtained.
That the certificate was unƒairly obtained, is, indeed, an expreffion attended with fome ambiguity ; but it muft have refpect to the fubject matter, which was the trading, bankruptcy, commiffion,&c. And, if a man had not been a trader, or, if he had not committed an act of bankruptcy, it was unƒairly to grant him a certificate:–So that unƒair is tantamount to illegal ; holding equally with the converfe of the propofition, that a certificate illegally muft be unƒairly, obtained.
If the Parliament of Engalnd intended to make fo effential a change in the bankrupt fyftem, as to leave the proceedings of the Commiffioners without controul,, or appeal, it would be ftrange that no ftronger, no clearer expreffion, was employed for that purpofe; and, if fuch was indeed their fenfe, it muft appear ftill more ftrange, that the Courts of Law have been fo far from underftanding it, that in every cafe fince the paffing of the ftatute, they have permitted the fame inveftigation which was before allowed. In Cowp. 823. it appears, that a Bankrupt, having obtained a certificate under a ʃecond Commiffion pending a former one, under which a certificate had been refufed, an application was made for an Exoneretur to be entered on the bail-piece; but the Judges pronounced the fecond commiffion to be abfolutely void, and difcharged the rule to fhew caufe. Now, if the certificate were conclufive, this decifion was illegal ; for, the certificate is as much evidence of the commiffion, as of the trading and bankruptcy; and its validity was a queftion equally before the Commiffioners, whofe fanction it had received.
It is clear, therefore, in every view, from the words of the law, and from judicial interpretations of its meaning, that the Legiflature has only made the certificate evidence; and the nature of evidence neceffarily implies an adverfe right to controvert and repel. A foreign judgment is allowed to be prima ƒacie evidence of a debt, and yet it was adjudged to be open to examination ; for, as I have already hinted, although fome kinds of evidence are ftronger than other kinds, yet, in that refpect, they are all placed on the fame footing. Doug. 1
But there is a general confideration, independent of the act of Affembly and the authorities; which is, that the matters determined by the Commiffioners are certainly matters of law, arifing from the facts ; as, what avocation conftitutes a trader, or what conduct amounts to an act of bankruptcy : Would it not then be a ftrained and unreafonable thing to fuppofe, that the Legiflature has eftablifhed a jurifdiction of this fort, competent to decide queftions of the greateft magnitude in their operation, and yet, that ​
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there fhould be no appeal to examine its proceedings, no power to correct its errors!– We are happy, indeed, in knowing that our decifions, if erroneous, may be rectified in the Supreme Court; the adjudications of which are alfo liable to the ultimate fcrutiny of the High Court oƒ Errors and Appeals. And, I repeat, is it not abfurd, therefore, to imagine, that the limited jurifdiction of the Commiffioners of Bankrupts is alone exempted from controul ; or, that men, unfkilled in jurifprudence, however upright in their general conduct, and intelligent in their particular arts and profeffions, fhould enjoy an abfolute authority in the difcuffion and determination of every nice point of law, which is incident to the extenfive and intricate inveftigations of the bankrupt fyftem?
For thefe reafon, the court are unanimoufly of opinion, that the evidence offered by the Plaintiff, ought to be received.
The cafe, upon the evidence, appeared to be this:–The Defendants, John Meng, William Goodwin, James Smith, and Roberts Cumming, had been copartners in trade under the firm of John Meng and Co. On the 26th of April 1785, Goodwin alone, is the name of himfelf and his partners, executed an affignment of all their perʃonal property to Curtis Clay et al. in truft for the benefit of the partnerfhip creditors : And, on the 30th of the fame month, he executed another affignment, in the fame form, and for the fame ufe, of all the real eftate of the company. On the 25th of June following, a third affignment was executed by Meng, Goodwin, and Cummings, for the fame ufe; at which time the Defendants were indebted to the the Plaintiff (among others) and to Meffrs. Roʃs and Dickens (who afterwards became the petitioning creditors) to a confiderable amount. After thefe tranfactions, about the beginning of July, 1786, Meng opened a ftore in Philadelphia under the old firm of John Meng and Co. in which, however, the meffenger of the company only found a fmall quantity of foap, and a bundle of paper money ; but Cummings was gone to Georgia to collect debts under the direction of the affignees, and Goodwin and Smith refided and kept a ftore at Cooper's Ferry, in New-Jerʃey. On the 1ft of Auguʃt, 1786, a joint commiffion of bankrupts againft all the four partners as traders by retail, iffued upon the petition of Roʃs, who done fubfcribed it in behalf of himfelf and his partner Dickens, having previoufly fworn that John Meng and Co. were indebted to them on a bond bearing date the 8th of July, 1786, payable on the 15th of the fame month ; which bond, it was admitted, had been given for the precedent debt due at the time of the affignment of the 25th June,1785. It was alfo agreed that Meng and Cummings ​
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had committed act of bankruptcy ; and, with refpect to the other two partners, it appeared from the minutes of the Commiffioners of bankrupts, that the Sheriff's Officers, having a Ca. Sa. againft all four at the fuit of Roʃs and Dickens, had made enquiries for Smith and Goodwin at the place where Meng kept his ftore in Philadelphia, and the Ferry-houʃe from which they ufually croffed to New-Jerʃey, but could not find them ; that they had requefted the Ferry-man to keep a boat in readinefs for them, for fear of a writ being iffued againft them; that the Ferry-man, obferving the approach of the Sheriff's Officer, gave them notice ; that thereupon they concealed themfelves in the Ferry-houʃe, faying that they did not like to go to Gaol, but would be able to pay all their debts ; and that foon afterwards they croffed the river to elude the purfuit of the officer.
On thefe facts, the Plaintiff's counfel contended.–1ft, That the debt of the petitioning creditor was not within the bankrupt law, which provides, that the debt, on which the commiffion iffues, “fhall have arifen upon a contract or tranfaction fubfequent to the paffing of the act.” 3 State Laws 644. ʃect. 3. But here the bond could be given for no other purpofe than to make the Defendants bankrupts ; and, although it may extinguifh, it cannot change the original nature of the debt. The doctrine if extinguifhment at common law, is, indeed, more limitted than the adverfe counfel will admit ; for, although a fecurity of a fuperior nature will alter the remedy, the debt itfelf remains. 6Co. 44. T. Rep. 17. Barn. 81.2Stra.1042.Caʃes Temp. Hard. 267. And the doctrine which applies in the laft cafe to fupport the commiffion there, applies to prove the invalidity of the one at prefent in controverfy. Befides, an act between obligor and obligee, that tends to the injury of other perfons, the law deems a fraud, by which, fo far, at leaft, it is vitiated and annulled. 1Burr. 474. 3 Co. 80. The bond of the petitioning creditor therefore, taken in every point of view, was infufficient to found a commiffion; for, whether it was given without a confideration, or in confideration of a precedent debt, it is equally contrary to the act ; and, if it is regarded as a fraudulent collufion between the petitioning creditor and the bankrupts, although it may be obligatory upon them, it is void as to a third perfon.–See Term. Rep. 406.Doug.282.
2. The petition and affidavit of Roʃs alone, notwithftanding it is faid to be on behalf of himfelf and his partner Dickens, was alfo irregular and illegal. There are, perhaps, no exprefs decifions on this point ; but, upon general principles, he who acts for another muft fhew his authority ; and, in the cafe of partners, for a purpofe of this nature, all muft fubcribe the petition, or delegate an exprefs power to another for doing it in their name ; a point already determined in this Court, in the cafe of Gerard v. Baʃie et. al. ant. 119. This is not an act that can be in contemplation in the bufinefs of a partnerfhip ; and the reafon is the ftronger againft allowing it, ​
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as a bond muft be given by the petitioning creditor. 3. State Laws. 644. ſect. 3.
3. But the commiffion itfelf has iffued erroneoufly and illegally; for the Defendants were not partners at the time it iffued ; and a joint commiffion can only iffued againft partners. The affignment of the 25th of June, 1785, divefted all their partnerfhip ftock, and, confequently, diffolved their joint connection ; for, partnerfhips may be diffolved by tokens, &c. or, they neceffarily ceafe with the objects of their inftitution. 1.Domet. lib. 1. tit. 8. par. 10 11. ſect. 5.pa. 155. But, although there was no formal diffolution of the partnerfhip, it is clear that the fecond trading was merely colourable, for the purpofes of a bankruptcy ; and they are defcribed to be traders by retail, which cannot relate to their former general partnerfhip, but to the recent colourable trading. To carry on bufinefs after a man's effects are gone, is, in itfelf, a fraud. Co.B.L. 80.81.82 1 Burr 478. 2 Black. Rep. 996. 362.
4. In a joint commiffion all the parties muft have committed acts of bankruptcy. Co.B.L. 4. 1 Atk. 97. The certificate, therefore, can be of no avail. at leaft, as to Goodwin and Smith, who never committed acts of bankruptcy. In croffing the river, although they faid it was to avoid an arreft, they were only returning to their home; and abfconding, in order to conftitute an act of bankruptcy, muft be from the ufual place of (illegible text) where the party does bufinefs; which, in the prefent cafe, was in New-Jerſey, whither they retreated, and not in Pennſylvania, where the writ iffued. In Co. B.L. 71 it is faid, that, if a man flies from the State to which he belongs, this is an act of bankruptcy: but here the parties did not fly from, but on, their State, or home; and a denial, or keeping houfe, to bring a man within the act, muft be at his own place of refidence, nor at the refidence of another perfon. Ibid. 74. Nor can an act be made an act of bankruptcy by analogy ; it muft be fuch as is within the law; and there is no cafe where a ftranger. in another State has been deemed a bankrupt for returning to his home in order to avoid an arreft where, probably, he could not obtain bail ; for a temporary concealment in another's houfe for the fame reafon.
The Counfel for the Defendant ftated, that, if the prefent objections were fuch ftated, they would be equally fatal to almoft every other certification which had been granted under the act of Affembly ; for, (illegible text) of ten of the commiffions of bankrupts had originated in the fame manner, upon debts either revived by new fecurities, or created in concert for the occafion. They then contended–That the original fimple contract debt was merged in the bond, 6 Co. (illegible text)that if both parties agree to bring the debt in this fhape within the act, the provifo in the third ſect. is fatisfied ; and that the (illegible text) was not taken after the bankruptcy, which diftinguifhes this from the cafe in Rep. Temp. Hard 267.
2. That of the fecond point, the act of one partner, is the act of all in commercial matters, that one partner may bring a fuit at ​
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law for the joint debt, or hold the Defendant to bail upon his fole affidavit ; and that the cafe of Gerald v.Baʃs et at. does not apply, as it did not turn upon a commercial tranfaction, but upon an inftrument under feal, which can only bind the perfon that executes it.
3. That there was no diffolution of the partnerfhip between the Defendants ; that the ftore kept by Meng in ''Philadelphia, was evidently, from the teftimony, a continuance of the old connection; and that the amount of the joint ftock, whether large or fmall, could not affect the queftion. See 1 T. James. 141.
4. That all the Defendants were enquired to where they carried on their trade, at Meng's houfe ; that Smith and Goodwin denied and concealed themfelves at the Ferry-houʃe, and exprefsly faid, that they were going off to avoid the arreft; that an abfconding out of the State, equally affects a ftranger and an inhabitant and that even a departure, with an intent to delay a creditor, is a fufficient act of bankruptcy. See 2 Stra.809 Palm. 125.Co.B.L.74
The president, having again noticed the caufe of action, and the ftate of the pleadings, proceeded in delivering the following charge to the Jury.
SHIPPEN, Preʃident.– A bankrupt law, in a trading country, muft be productive of many benevolent and beneficial confequences. When an unfortunate trader has fairly and honeftly furrender all his property for the ufe of his creditors, the Legiflature certainly intended, that he fhould be effectually difcharged from all his debts, and left at liberty to acquire new fubtftance: and there are many inftances in England, where, by this encouragement, bankrupts have been enabled, not only to extricate themfelves and their families from the calamities that oppreffed them, but to indulge an honorable difpofition in paying thofe obligations, from which they were thus, by law, exonerated.
It has often happened, however, that, on the other hand, the bankrupt act have been preverted to the iniquitous purpofes of fraud and embezlement ; and, therefore, it is requifite, that, on every occafion, the ftricteft fcrutiny fhould take place. With this view, out act of Affembly, correfponding with the Engliʃf ftatute, directs Commiffioners to be appointed, who, having received the neceffary proofs of the party's being a trader, and of the commiffion of an act of bankruptcy, are ample empowered to inveftigate the bankrupt's conduct, and to compel a disclofure and furrender of all his property; and, when that is fatisfactorily done, they are authorized and required to grant him a certificate of his conformity to the law. In England, this certificate, (which, when fairly obtained is a compleat difcharge and releafe from all the former debts ​
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of the bankruptcy cannot be granted without the confent of four fifths in value of the creditors; but, in Pennʃylvania, the granting it refts entirely with the Commiffioners; and there is no check upon its operation, but that it muft be firft allowed by the Prefident of the Supreme Executive Council, under the great Seal of the Commonwealth.
In the cafe under confideration, the Commiffioners have granted, and the Prefident has allowed, a certificate in favor of the Defendants; but four exceptions have been taken to the proceedings on which the certificate is founded, in order to maintain the Plaintiff's action, which is brought for the recovery of a debt contracted before the act of bankruptcy. The Court being of opinion that the evidence in fupport of thefe exceptions ought to be fumbitted to the Jury ; it now only remains to confider, whether the exceptions themfelves are fufficient, in law, to defeat the benefit which the Defendants claim from the certificate.
1. In the firʃt place, it is faid, that the debt of the petitioning creditors, was not fuch as warranted the iffuing of the commiffion ; for, it was contracted before the act of Affembly for the regulation of bankruptcy, although a bond of a fubfequent date was given for it: And the Plaintiff's counfel have contended, that this relation between the bond and the former debt is fufficient to take the cafe out of the act. On the part of the Defendants, however, it is infifted, that the original debt was extinguifhed by the bond, fo as to fatisfy the provifo in the 3 ʃect. of the law.
The general doctrine of extinguifhment is, at this day, well fettle and underftood. If a creditor upon a promiffory note, or book account, accepts a bond for the amount from his debtor, this, being a fecurity of a higher nature, extinguifhes the firft debt, and the creditor cannot afterwards fue upon the note, or account but muft proceed for the recover of his money upon the bond alone.
There is, however, no authority precifely in point to the queftion now agitated; but the determination in Caʃes temp. Hard. 267. is though by the Plaintiff's counfel to be in a great degree analogous. On that occafion a bond had been taken after an act of bankruptcy, (of which the obligee had no notice) for a fimple contract debt due before, and as any debt that accrues after an act of bankruptcy is not entitled to a dividend, the Chancellor there confidered the debt as it originally ftood, in order to give the benefit of it to a creditor, who would otherwife have been excluded, without any default on his part, from a diftributive fhare of the bankrupts effects. This cafe, therefore, is is objected by the Defendant's counfel, muft have depended upon the pecuilar circumftances in which it was involved ; and that this appears the more evidently, as Lord Hardwicks exprefsly fays, that, between the parties themfelves, the bond would operate as an extinguifhment of the precedent debt. There can be no doubt, indeed, that many of the cafes on this fubject have been determined by the particular circumftances that attended them ; ​
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for, we find, that a tranfaction of a fimilar nature with that juft tited, but prefented in a different point of view, was decided directly the other way. Term Rep. 705. A bankrupt, after an act of bankruptcy committed, had given a bond with warrant to confefs judgment to (illegible text) of his creditors for a debt due before the act of bankruptcy: the judgment was entered and a Ca. Sa. iffued. Afterwards the bankrupt obtained his certificate, and moved to be difcharged from this execution, alledging that the caufe of action arofe prior to the act of bankruptcy; but the Court in this cafe decided, that the bond was an extinguifhment of the old debt, and, accordingly, denied the motion.
But there are many reafons which might be urged to diftinguifh the prefent cafe from that determined by Lord Hardwicke. When the bond was given by the Defendants to Roʃs and Dickens, no act of bankruptcy had been committed ; no dividend was to be claimed; no perfons, but the parties themfelves, were interefted; and, as nothing appears to preclude the idea that this was a voluntary exchange of fecurities, certain it is, that after the acceptance of the bond, Roʃs, and Dickens could never have recovered upon the original debt. (illegible text) refpects, therefore, there is a material difference between which feems ftrongly to fupport the argument of the Defendant's counfel, that the bond was an extinguifhment of the preceeding a debt.
Even, however, if the law is doubtful, from the frequency of the practice of entering into voluntary bonds, for the very purpofe of obtaining a commiffion, I fhould be unwilling to recommend it to the Jury, on that ground alone, to invalidate the certificate: And, therefore, as we have indeed no pofitive rule to guide us, but the whole refts on an implication arifing from the cafes, the Jury muft decide for themfelves. I will only add on this objection, that the Legiflature probably introduce the provifo in the third fection (with, I prefume, is a view particularly to foreigners) in order to evince, that it was not intended to abrogate all former contracts and obligations : And, as it is only the debt of the petitioning that muft be fubfequent to the paffing of the act (for, the commiffion having iffued, all debts prior, as well as fubfequent, are included) no great mifchief can enfue from this reftriction, or from the method which has been generally taken to bring the debt of the petitioning creditor within the words of the law.
2. The ʃecond objection is, that a petition fubfcribed by one of two partners, in the name of himfelf and partners, is not a legal ground for iffuing a commiffion ; and this is faid to be fupported by a decifion of this Court, in the cafe of Gerord v. Baʃs et al. (ant. 119) There can be not doubt of the legality of that decifion. A bond is technically termed a deed ; and the doctrine with refpect to the efficacy of a deed, ftands upon its own footing ; none being bound by it, but the perfons who actually execute it. In commercial matters, however, the act of one partner is the act ​
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both; and, therefore, it is neceffary to confider, whether the petition of a creditor to obtain a commiffion, is moft like a deed, or a commercial act. It appears to me, indeed, to bear a ftrong refembalance to an action at law ; and as one partner may inftitute a fuit, and the oath of one will be fufficient to eftablifh the debt on a queftion of bail, I cannot conceive any fatisfactory reafon, why move fhould be required for the purpofes of the bankrupt law ; and, therefore, in my opinion, this objection ought not to weigh with the Jury.
3. The third objection argues, that the partnerfhip that fubfifted between the Defendants, had been virtually diffolved by the general affignment of their property ; and that, therefore, a joint commiffion could not iffue againft them. I have not had time to examine the authorities upon this point, but, I believe, the doctrine to be well founded, that there muft be a fubftifting partnerfhip at the time a joint commiffion is taken out, and it feems alfo reafonable, to infer the diffolution of a partnerfhip from an act, by which all its objects are alienated a transferred. The barely executing an affignment, however, of the ftock in trade, if the joint tranfactions are not an and, will not be an actual diffolution of the partnerfhip ; for, where there is no exprefs agreement to make that diffolution, the affignment can only be confidered as circumftantial evidence of it, which the Defendant is at liberty to repel by contrary proof.
Whether, therefore, the trading fubfequent to the general affignment was fictitious, and merely for the purpofes of a bankruptcy, as the Plaintiff contends ; or, whether it was a continuance of the former copartnerfhip, as the Defendants alledge, muft depend upon the facts, on which it is the province of the Jury to decide. If they fhold think that the old partnerfhip was diffolved , and no new one contracted, thanthere was not any legal origin for the joint commiffion ; – to found a commiffion upon a fictitious partnerfhip being certainly unƒair. But, it, on the other hand, there was really a partnerfhip between the Defendants at the time of their bankruptcy, neither the previous affignment of their effects, nor the fmallnefs of the quantity of goods in their ftore (a matter only to be confidered as circumftantial evidence of a ficitious trading) can have any effect upon the cafe to invalidate the commiffion, or to defeat the certificate.
4. The ƒourth objection is, that two of the Defendants, Goodwin and Smith, have not committed acts of bankruptcy ; and, therefore, it is argued, that the verdict of the Jury muft, at leaft, be againft them. As thefe perfons refided in New Jerʃey, it is faid, in fupport of this objection, that Meng's ftore, or the Ferry-houʃe, (at both which they were denied, and at the laft place they concealed themfelves from the Sheriff's officer) cannot be deemed their home, fo as to fatisfy the words of the act, in defcribing an act of bankruptcy, by “ beginning to keep houfe,” of which the ufual proof is certainly, a demand and denial. Under the decifions in England ​
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(and our law is fubject to the fame conftruction) a perfon who refides in a foreign country, trades to that kingdom, and afterwards goes thither, is clearly within the ftatute. It is true, that, confidering the mere phrafe, it feems abfurd to fay, that a man keeps his houfe, who has, in fact, no houfe to keep, and yet there is a cafe exprefsly to that point, where a man, having no home of his own, was held to have committed an act of bankruptcy by keeping houfe in the dwelling of another.
But the Defendant counfel have controverted this objection upon the ground of a departure out of the State; which, they fay, applies as well to a ftranger as an inhabitant ; while, in behalf of the Plaintiff, it is contended, that, as the only proof of a departure by Goodwin and Smith, is that of going to their own houfe in New Jerʃey, this cannot, upon principle or precedent, be conftrued into an act of bankruptcy. From the evidence, it appears, that a writ had iffued againft the four Defendants, of which all of them had notice; two of them, it is agreed, committed acts of bankruptcy, and the other two, being enquired for at the ftore of Meng, and alfo at the Ferry-houʃe, where they had ordered a boat to be ready, for the exprefs purpofe of avoiding an arreft, did actually of them. This conduct, in the common cafes of a refident, would, undoubtedly, amount to an act of bankruptcy; for, it has often been determined, that, if a man goes from home but a day, in order to delay or defraud his creditor, it is fufficient to bring him within the ftatute. Whether, however, the flight of a ftranger to his own home in another State, is fuch a departure as the law intends, the cafes have left in great obfcurity ; for the only principle afcertained by them,is, that the departure muft be with a view to delay or defraud; and the act of Parliament itfelf contains no diftinction of the nature now contended for. On fo doubtful a point, therefore, the Court would rather, at this time, leave the decifion at large to the Jury, than venture a pofitive opinion.
Such then are the objections on which the Plaintiff infifts that his action is maintainable ; and, if, upon the whole, the Jury think he has been unƒairly obtained ; either becaufe the commiffion ought not to have iffued, or that the certificate ought not to have been granted, their verdict muft be in his favor. But, if, on the contrary, there has been no illegal or unfair methods purfued by the Defendants to obtain their certificate, they are difcharged from the Plaintiff's demand, and the verdict muft be for them.
After ftaying out fome time, the Jury returned to the bar, and declared they they could not agree in a verdict ; whereupon they were difmiffed by confent of the parties, and a Venire ƒacias de novo awarded.