Page:United States Reports, Volume 1.djvu/396

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1788.

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, Rh