Page:United States Reports, Volume 1.djvu/398

Rh 

1788.

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 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 Rh My abfence from Court during a great part of the defence, unfortunately prevents my ftating it more at large. What is here publifhed is principally taken from the arguments of Mr. Fiʃher.