Page:United States Reports, Volume 1.djvu/401

390 

1788.

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 (and