Page:United States Reports, Volume 1.djvu/400

Rh 

1788.

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 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. 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 both ;