Page:United States Reports, Volume 1.djvu/397

386 

1788.

as a bond muft be given by the petitioning creditor. 3. State Laws. 644. ʃect. 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. ʃect. 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  where the party does bufinefs; which, in the prefent cafe, was in New-Jerʃey, whither they retreated, and not in Pennʃylvania, 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, 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. that if both parties agree to bring the debt in this fhape within the act, the provifo in the third ʃect. is fatisfied ; and that the 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 law