1788.
for, we find, that a transaction of a similar nature with that just cited, but presented 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 confess judgment to one of his creditors for a debt due before the act of bankruptcy: the judgment was entered and a Ca. Sa. issued. Afterwards the bankrupt obtained his certificate, and moved to be discharged from this execution, alledging that the cause of action arose prior to the act of bankruptcy; but the Court in this case decided, that the bond was an extinguishment of the old debt, and, accordingly, denied the motion.
But there are many reasons which might be urged to distinguish the present case from that determined by Lord Hardwicke. When the bond was given by the Defendants to Rose and Dickens, no act of bankruptcy had been committed; no dividend was to be claimed; no persons, but the parties themselves, were interested; and, as nothing appears to preclude the idea that this was a voluntary exchange of securities, certain it is, that after the acceptance of the bond, Rose, and Dickens could never have recovered upon the original debt. In all these respects, therefore, there is a material difference between the authority cited, and the case in controversy;—a difference which seems strongly to support the argument of the Defendant's counsel, that the bond was an extinguishment of the preceeding debt.
Even, however, if the law is doubtful, from the frequency of the practice of entering into voluntary bonds, for the very purpose of obtaining a commission, I should be unwilling to recommend it to the Jury, on that ground alone, to invalidate the certificate: And, therefore, as we have indeed no positive rule to guide us, but the whole rests on an implication arising from the cases, the Jury must decide for themselves. I will only add on this objection, that the Legislature probably introduce the proviso in the third section (with, I presume, 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 must be subsequent to the passing of the act (for, the commission having issued, all debts prior, as well as subsequent, are included) no great mischief can ensue from this restriction, 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 second objection is, that a petition subscribed by one of two partners, in the name of himself and partners, is not a legal ground for issuing a commission; and this is said to be supported by a decision of this Court, in the case of Gerard v. Basse et al. (ant. 119.) There can be no doubt of the legality of that decision. A bond is technically termed a deed; and the doctrine with respect to the efficacy of a deed, stands upon its own footing; none being bound by it, but the persons who actually execute it. In commercial matters, however, the act of one partner is the actboth;
