To the Right Honourable, &c.

IN most humble manner com­plaining, sheweth unto your Lordship your daily Orators, T. B. of A- in the County of D. Gent. and W. P of C. in the County of E. Esq; as well for them­selves, as for all others the Credi­tors of R. D. of the Parish of M. in the City of London Merchant, That whereas the said R. D. using and exercising the Trade of Mer­chandize, by way of Bargaining, Exchange, Bartering and Chevi­sance, seeking his Trade of living by buying and selling, upon good and just causes, for Wares and Merchandizes to him sold and de­livered, and also for ready mony to him lent, being indebted to your Orators, and others his Creditors in divers and several sums of money, amounting in the whole to the sum [Page 77] of &c. and upwards; of late, that is to say, about the Month of No­vember last did become Bankrupt, within the several Statutes lately made against Bankrupts, to the in­tent to defraud and hinder your said Orator, and all other his Creditors of their just Debts and Duties to them due, and owing (viz.) within the Statute made in the Parliament begun and holden at Westminster the second day of April in the thirteenth year of the Reign of our late Sove­reign Lady Queen Elizabeth con­cerning Bankrupts: and within the Statute made in the Parliament be­gun and holden at Westminster afore­said, the nineteenth day of March in the first year of the Reign of our late Sovereign Lord King James of England, France, and Ireland, and of Scotland the seven and thirtieth, Intituled An Act for the better relief of the Creditors against such as shall become Bankrupts; as also within the Statute made in the Parliament [Page 78] begun and holden at Westminster the nineteenth day of February in the one and twentieth year of the Reign of our said late Sovereign Lord King James of England, France, and Ireland, and of Scotland the seven and fiftieth, Intituled, An Act for the further description of a Bankrupt, and relief of the Creditors against such as shall become Bankrupts, or within some or one of them: In ten­der consideration whereof, may it please your Lordship to grant unto your Orators his Majesties most gra­cious Commission to be directed to such and so many wise, honest, and discreet persons as your Lordship shall seem meet, authorizing them thereby, not only concerning the said Bankrupt, his Body, Lands, Tenements, Free-hold and Custo­mary Goods, Debts, and other things whatsoever, but also con­cerning all other persons which by concealment claim, or otherwise do or shall offend touching the premi­ses, [Page 79] or any part thereof, contrary to the true intent and meaning of the same Statutes. To do and execute all and every thing and things what­soever, as well for, and towards sa­tisfaction and payment of the said Creditors, as towards and for all other intents and purposes, accor­ding to the Ordinance and Provi­sion of the same Statutes:

And your Orators shall pray, &c.

Whereas we are informed that R. D. of L. in the City of London Mer­chant, using and exercising the Trade of Merchandise by way of Bargaining, Ex­change, Bartering and Chevisance, seek­ing his Trade of living by buying and sel­ling, did become Bankrupt▪ within the several Sta­tutes made against Bankrupts, to the intent to defraud and hinder T. B. of A. in the County of D. Gent. and W. P. of C. in the County of E. Esq; and others his Creditors of their just Debts and Duties to them due, and owing, We minding the due exe­cution as well of the Statute touching Or­ders for Bankrupts in the Parliament be­gun and holden at Westminster the second day of April in the thirteenth year of the Reign of our dear Sister Elizabeth late [Page 83] Queen of England made and provided: As of the Statute made in the Parlia­ment begun and holden at Westminster aforesaid, the nineteenth day of March, in the first year of the Reign of our late dear Grandfather King James of England, France, and Ireland, and of Scotland the seven and thirtieth, Intituled, An Act for the better relief of Creditors a­gainst such as shall become Bankrupt. And also of the Statute made in the Par­liament begun & holden at Westminster aforesaid, the 19th day of February in the twenty first year of the Reign of our said late dear Grandfather K. James of England, France, and Ireland, and of Scotland the seven and fiftieth, Intitu­led, An Act for the further descripti­on of a Bankrupt, and relief of Credi­tors against such as shall become Bank­rupt, upon trust of the wisdoms, fidelities, diligence, and provident circumspection which we have conceived in you do by these presents name, assign, appoint, consti­tute, and ordain you our special Commissio­ners, giving full power and authority, un­to [Page 84] you, four or three of you, whereof you the said A. B. to be one accord­ing to the same Statutes, and every, or a­ny of them not only concerning the said Bankrupt his body, Lands, Tenements, Free-hold, & Customary Goods, Debts, & other things whatsoever, but also concern­ing all other persons which by conceal­ment, claim, or otherwise do, or shall offend touching the premises, or any part thereof contrary to the true intent and meaning of the same Statutes, or any of them, to do and execute all and every thing & things whatsoever, as well for and towards satis­faction and payment of the said Creditors, as towards, and for all other intents and purposes according to the Ordinances and provision of the said Statutes, Willing and commanding you, four, or three of you whereof you the said A. B. to be one, to pro­ceed to the execution and accomplishment of this our Commission according to the true intent and meaning of the same Sta­tutes, with all diligence and effect, as our special trust is in you.

Witness Our self at Westminster the, &c.

The punishment, and proceedings against Bankrupts, by 34 H. 8. Cap. 4.

(27.) Nota, By 21 Jac. cap. 19. it is enacted, that all Statutes and Laws formerly made against Bankrupts, and for relief of Creditors, shall be in all things largely and beneficially constru­ed for relief of the Creditors.

(28.) First, in General, He shall beIn Gene­ral. accompted a Bankrupt to all intents and purposes; 13 Eliz. cap. 7. 21 Jac. cap. 19. 1 Jac. cap. 15. and being a Bankrupt, he is presently disabled, as to the disposal of any part of his Estate, although it be to some of his Creditors; for he is ut­terly discredited by his becoming a Bankrupt, & the Law will not trust him with the distribution of his Goods, vide Coke, lib. 2. 26. a. Case of Bankrupts.

(29.) Secondly, more Particularly,In parti­cular. the Bankrupts are to be proceeded a­gainst by Persons immediately authori­zed by Act of Parliament, or mediately:Touch­ing the Bank­rupts Person. the persons immediately authorized are set forth by 34 H. 8. cap. 4. to be the Lord Chancellor or Lord Keeper for [Page 100] the time being, Lord President, Lord Privy-Seal, o [...] other of the Kings most Honourable Privy-Counsel, and the Chief Justice of either Bench for the time being, or three of them at the least; whereof the Lord Chancellor or Keeper of the Great Seal, Lord Treasu­rer, Lord President, or the Lord Privy-Seal to be one; who upon every com­plaint made to them in writing by any parties grieved, shall have power and authority by vertue of the said Act, to take by their wisdom and discretion, such orders and directions, as well with the bodies of the said offendors, where­soever they may be had, as well in their houses as else where, by imprisonment of their Bodies, or otherwise; as also with their Lands, Tenements, &c. which they have in Fee-simple, Fee-tail, for term of life, term of years, or in the right of their wives; as much as the in­terest, Right and Title of the same of­fenders shall extend to, or be, and may then lawfully be departed with by the said offendors; and also with their mo­neys, goods, chattels, wares, merchan­dises and debts, wheresoever they may be found or known, &c. 34 H. 8. cap. 4.

(30.) So that the power given by the said Statute, relates either to the person or estate of the Bankrupt: First, as to his person, viz. If the offender doth withdraw out of the Kings Dominions, to defraud his Creditors; upon complaint thereof made in writing to the said Lords, having authority as aforesaid, they shall by vertue of the said Act, have power to award Proclamations to be made in such places as to them shall be thought meet and convenient; com­manding by the same such offendor, in the Kings name, to return with all con­venient speed, into this Realm, and to yield his body before the said Lords, or one of them: And if the said person, within three months after he shall have notice of such Proclamation; or, so soon after as he conveniently may, do not repair and yield his body as afore­said; That then the body of all and every such offender and offenders, shall be ad­judged, taken, and deemed, to all in­tents and purposes, out of the Kings pro­tection; and his Goods, Chattels, Lands, Tenements, and Debts, shall be by the order and discretion of the said Lords, employed and distributed amongst the offenders Creditors equally, &c. 34 H. 8. cap 4.

(31.) Secondly, Touching the of­fendorsTouch­ing the Bank­rupts estate. estate observe (more particular­ly) first the power given to the Lords by 34. H. 8. for the discovering and ob­taining of it: Secondly, for their dispo­sal and ordering of it.

(32.) First, for the discovery andThe dis­covery of it. obtaining of it. The effect of that Sta­tute is, That if, after any such Act or of­fence committed, and complaint thereof made to the Lords as aforesaid, by any party grieved concerning the premises, who knowing, or suspecting any of the goods, chattels, wares, merchandizes, or debts of such offendors, to be in the cu­stody, use, or possession, of any person or persons; or any person or persons to be indebted to any such offendor or of­fendors, do make relation thereof to the said Lords, then they are impowred by the said Statute, to send for, and convent before them, such person or persons so known or supposed to have any such goods, wares, &c. in their custody, or to be indebted to the offendor or offen­dors; and upon their appearance, to ex­amine them, and every of them, as well by their Oaths, as otherwise, for and up­on the specialty, certainty, true decla­ration, and knowledg, of all and singu­lar [Page 103] such goods, wares, debts, &c. as be suspected to be in his, or their custody, use, &c. And if the person so examined, do not plainly disclose the whole truth, of such things whereof he shall be exa­mined touching the premises; then every such person or persons so examined, and not declaring the plain and whole truth, upon such proof thereof made, before the said Lords, as they shall judge suf­ficient in that behalf, shall lose and for­feit double the value of all such goods, wares, &c. so concealed, to be levied by the said Lords, by such ways and means as they shall think fit, the same to be distributed to the Creditors, in such manner as the Bankrupts Estate. 34 H. 8. cap. 4.

(33.) And that if any person or persons do fraudulently by covin or col­lusion demand any debt, or other thing by writing or otherwise, of such offen­dor or offendors, other than such as he, or they can and do prove to be justly due before the said Lords, that then e­very such person or persons, so crastily demanding any such debt, &c. shall forfeit the double of what he shall so claim, &c. to be levied and imployed as aforesaid.

(34.) So, if the Bankrupt (after he shall do those acts, whereby he is decla­red Bankrupt) shall suffer fraudulent re­coveries against him of any debts, goods, &c. upon complaint thereof to them made, the Lords are impowred to convent before them the Recoverers; and after such fraud discovered the said goods, &c. so recovered shall be char­geable to the Bankrupts debts, and be disposed of to the Creditors (not­withstanding such Recovery.) 34 Hen. 8. cap. 4.

(35.) Secondly, Observe the pow­erDisposal of the Bank­rupts estate. given by that Statute to the Lords, for disposing and ordering of the Bankrupts Estate. First, they have power to cause the Bankrupts Lands, Tene­ments, Fees, Offices, Annuities, Goods, and Chattels, Debts, &c. to be viewed, rented, and appraised. Secondly, To make a sale of the said Lands, &c. or otherwise to order the same, for the true satisfaction, and payment of the said Creditors, rate and rate like, according to the quantity of their debts. Thirdly, And that every direction, order, bargain, sale, and other things done by the said Lords as aforesaid in w [...]iting, signed with their hands, shall be good and ef­fectual [Page 105] in the Law, to all intents, &c. a­gainst the offenders, their heirs and exe­cutors for ever, as if done and executed by the offendors themselves. 34 Hen. 8. chap. 4.

Which Statute of 34 H. 8. although it be now out of use; yet in regard I do not find itactually repealed, I suppose it will not bethought altogether superfluous to be taken notice of.

The proceedings against and punishment of the Bankrupt, by persons mediate­ly authorised by Parliament.

(36.) The next things considera­ble, are the proceedings against, and pu­nishment of the Bankrupt, by Com­missionersCom­missio­ners. Their Com­mission. or persons mediately autho­rized by Parliament, wherein take notice, First, of their Commission: and therein observe, first from whom obtained, the Lord Chancellor of England, or Lord Keeper of the Great Seal, for the time being, upon every complaint made unto him in writing, against any such person or persons being Bankrupt, shall have full power and authority by Commission un­der the Great Seal, to name and appoint [Page 106] such honest and discreet persons, as to him shall seem meet, &c. 13 Eliz. cap. 7. Secondly, by whom to be obtained, by the Creditors. Thirdly, when to be ob­tained, it must be within five years after that the party shall become a Bankrupt, or else it is not to prejudice purchasers. 21 Jac. chap, 19. the words of the Sta­tute are, Provided that no purchaser for good and valuable consideration, shall be impeached by vertue of this Act, or any other Act against Bankrupts, unless the Commission, to prove him or her a Bank­rupt, he sued forth against such Bankrupts, within five years after he or she shall be­come a Bankrupt. ibid. Family, The duration of the Commission, it is not de­termined by the Bankrupts death; for b [...] 1 Jac. cap. 15. it is thus enacted, Pro­vided always, and be it enacted, that [...] after any Commission of Bankrupts here­after sued forth, and dealt in by the Com­missioners, the offendor happen to die, be­fore the Commissioners shall distribute the Goods, Lands, and Debts of the offen­dors, or any of them, by force of the a­foresaid Statute of 13 Eliz. and this Statute, or either of them, That then ne­vertheless the said Commissioners shall and may in that case proceed to execution [Page 107] in, and upon the said Commission, for, and concerning the offendors goods, lands, te­nements, hereditaments and debts, in such sort, as they might have done if the party offendor were living. 1 Jac. 15.

(37.) If such, or such number of the Commissioners die, so that the rest cannot proceed▪ and thereupon a new Commission be granted to other Com­missioners, they may call the surviving Commissioner or Commissioners before them, to give accompt for such part of the Bankrupts estate, whereof the old Commissioners made no distribution, as persons who have the Estate of the Bankrupts in their hands: Stones Lecture, fol. 19. and 187.

(38.) Secondly, Note the authority given the Commissioners, so commissio­nated as aforesaid, by several Acts of Parliament: First, as touching the Bank­rupt himself. Secondly, as touching his Estate.

(39.) First, as to the Bankrupt him­self,To cause the Bank­rupt to ap­pear. by the Statute of 13 El. chap. 7. it is thus set forth: And be it enacted, that if any such person or persons, which is, or shall be indebted, do of purpose withdraw him or themselves out of, or from his or their usual mansion house or houses, that [Page 108] then upon complaint thereof made to the said Commissioners, the same Commissio­ners, or the more part of them, shall by vertu [...] and authority of this pres [...]nt A [...] have full power and authority to awa [...] five Proclamations, to be made in the Procla­mations. Queens Name, upon five sundry Market­days, in such places, near the place when such Bankrupt hath most commonly d [...]el­led, or made his abode; commanding hi [...] or them by the said Proclamations in the Queens name; to return with all conveni­ent speed; and to yield his, or their Body before the said Commissioners, or one of them, at such time and place, as by the said Proclamation shall be appointed: and if the said Person or persons do not ac­cording to such Proclamation, repair and yield his or their body as aforesaid, tha [...] then the body of all and every such of­fendor or offendors shall be judged, taken, and deemed to all intents and purposes out of the Queens Protection; And that every person and persons, that shall willingly or wittingly, receive, d [...] ­tain, or keep secretly any person or per­sons so demanded by Proclamation, as is aforesaid, shall suffer such pain of impri­sonment of his, or their bodies, or pay such Fine to our Soveraign Lady the Queens [Page 109] Majesty, her heirs, and Successors, as the said Lord Chancellor, or Lord Keeper of the Great Seal, being informed thereof by the Commissioners so to be appointed, as is afore said, or the more part of them shall seem meet and convenient, for their said offence or offences. 13 Eliz. chap. 7.

(40.) And by the Statute of 1 Jac. Warn­in [...] left in wri­ting. chap. 15. The said Commissioners may call before them, or the greater part of them, the said Bankrupt; and it upon law­ful warning left in writing, at three se­veral times, at the dwelling place or house where the said Bankrupt his wife, or family for the most part of his abode did lodge, or remain, within one year next before, he, she, or they became Bank­rupt; the said Bankrupt shall not appear before the said Commissioners, or the greater part of them, that then and from [...]henceforth it shall be lawful for the greater number of the said Commissio­ners, to appoint to proclaim the said party a Bankrupt, at such publick place.Procla­mation. or places where the said Commissio­ners, or the greater part of them, shall [...]hink meet, warning him, her, or them, to appear before them, upon the said Commission at some time appointed▪ [Page 110] And that if upon five several Proclama­tions made in some publick place, the party offending, appear not before the said Commissioners, and yield his, her▪ or their bodies to them, or some of the [...] the said Commissioners or greater par [...] of them, shall or may award a warrant [...] such fit person or persons as they sh [...] think meet to apprehend the body a [...] bodies of the said offendor and offen­dors; and to bring him, her, or them [...] offending before the said Commissioner [...] wheresoever the said party or parties [...]fending may be sound in places priv [...] ledged, or not, to be examined by [...] said Commissioners, or the greater [...] Break­ing open houses, &c. to take the Bank­rupts. of them, 1 Jac. chap. 15.

(41.) And by 21 Jac. chap. 19. T [...] said Commissioners, or the greater p [...] of them, in execution of the said Co [...] mission, or any other person or perso [...] by them to be deputed by their warr [...] or warrants under their hands or se [...] have power to break open the house [...] houses, Chambers, Shops, &c. of the [...] Bankrupt, where the said Bankrupt, [...] his goods, &c. shall be; and to seize upo [...] and order the person, &c. of such Bar [...] rupt, as by former Laws are appointe [...] &c. 21 Jac. 19. And by 13 Eliz. ch [...] [Page 111] 7. The said Commissioners have power given them, to take order by their dis­cretion with the body of the Bankrupt, wheresoever he or she may be had, ei­ther in his or her houses, Sanctuary, or elsewhere, &c. Ibid.

(42.) Secondly, Observe the power of the Commissioners, as to the estate of the Bankrupt; and therein take no­tice, First, of what estate. Secondly, the means for the discovery, and obtain­ing of it. Thirdly, their disposal of it.

Of what Estate of the Bankrupts the Commissioners may dispose.

(43.) First, Of the Bankrupts realReal Estate. Estate: Lands, tenements, and heredi­taments, as well Copy-hold, or Custo­mary-hold, as free-hold, which he or she shall have in his or her own right, before he or she became Bankrupt, &c. 13 El. chap. 7.

(44.) It is made by Mr. Stone a Quere in his Lecture: That if there be two joyntly, and the one become Bank­rupt, and dies, whether his part shall be sold, because the survivor is not in by him. But it seems to me, that the Bank­rupts part shall be sold, and that there [Page 112] shall be no survivor in this case. First, because the Bankrupts moiety is bound by the Statutes, by his becoming a Bank­rupt. Secondly, the Bankrupt had pow­er to sell the same in his life time, and might depart with it, and so within the words of 13 Eliz. cap. 7. the words are [such use, interest, right or title, as such offendor or offendors that shall have in the same, which he or she may lawfully depart withal.] vide after Sect. 46. Third­ly, by 1 Jac. chap. 15. The Commissioners after the Bankrupts death, may proceed in execution, in and upon the Commissi­on, for and concerning the offendors Lands, Tenements, &c. in such sort as if the offendor had been living; which they cannot do in the case before, if the survivorship take place.

(45.) It was agreed by the JusticesCopy­hold. that Copy-holds are within the intent and purliew of all the Statutes concern­ing Bankrupts, and may be sold by the Commissioners; some doubt whereof was made, because they are named in one clause of 13 El. and not in 1 Jac. chap. 15. or 21 Jac. chap. 19. for the same being in the first Statute, and the other Statutes being made in further con­firmation and approbation thereof, they [Page 113] ought to be expounded liberally and shall be construed accordingly, to make as strong provision, as they may against the Bankrupt, Crook, 3. part 550. Crisp against Prat.

(46.) And all such Lands, tene­ments,2. Lands purcha­sed joyntly with the wife. hereditaments, as such person, [viz. the Bankrupt] shall have purcha­sed, or obtained for money or other re­compence joyntly with his wife, chil­dren, or child, to the only use of such of­fendor or offendors, or such use, interest, right, or title, as such offendor, or offen­dors then shall have in the same, which he or she may lawfully depart withal, 13 El. cap. 7.

(47.) A man purchaseth Lands to him, and his wife, and his son, and two years after he becomes a Trader; and four years after he becomes a Bankrupt, these Lands shall not be sold by the Commissioners of Bankrupt, and are out of the meaning of the Statute, for else none might know with whom to deal by way of marriage or otherwise, when a person who is not a Tradesman, settles Lands upon his wife and children, bonafide, and after becoming a Tradesman, and then a Bankrupt, the said Acts of Par­liament shall overthrow a Conveyance [Page 114] so duly setled. Crook, 3 part. fol. 550. Crisp versus Prat.

(48.) Lands, Tenements, &c. which3. Lands in trust. any person or persons hath in trust to any secret use of any such offendor or offen­dors, &c. 13 Eliz. chap. 7. Lord and Tenant are; the Tenant makes a Feoff­ment to deceive the Lord of the Ward­ship, and then becomes a Bankrupt, these Lands shall be sold by the Com­missioners, for although the conveyance was only fraudulent as against the Lord, yet there was a trust between the Feof­for and Feoffee, Stones Lecture, fol. 185.

(49.) Manors, Lands, Tenements,4. &c. conveyed or procured, or caused to be conveyed by the Bankrupt to any of his children, or other person or per­sons, except the same shall be purchased or conveyed for, or upon marriage of any of his or her children, both the parties married being of the years of consent, or some valuable consideration. 1 Jac. 15.

(50.) A Tradesman in considera­tion of marriage, makes a conveyance of Lands, to the use of himself and his wife, and held to be within the Statute of 1 Jac. vide Stiles reports, fol. 288. Tucker vers. Cosh.

(51.) Also the said Commissioners5. Lands convey­ed upon conditi­on. have power to sell Lands and Tene­ments conveyed, upon condition; by 21 Jac. cap. 19. where it is thus, If any person that now is, or hereafter shall be­come a Bankrupt, have heretofore granted, conveyed, or assured, or shall at any time hereafter grant, convey, or assure any Lands, Tenements, Hereditaments, goods, Chattels, or other Estate, unto any person or persons, upon condition or power of re­demption at a day to come, by payment of money or otherwise, that it shall and may be lawful to and for the said Commissio­ners, or the greater part of them, before the time of the performance of such con­dition, to assign and appoint under their hands and seals, such person or persons as they shall think fit to make tender or pay­ment of money, or other performance, ac­cording to the nature of such condition, as fully as the Bankrupt might have done; And that the said Commissioners, or the greater part of them, shall after such ten­der, payment, or performance, have full power to sell, and dispose of such Lands, &c. so conveyed upon condition, for the be­nefit of the Creditors, as fully as they may sell or dispose of any the estate of the Bank­rupt. 21 Jac. Chap. 19.

(52.) Quere, whether the Com­missioners may not by the equity of this Stat. appoint one to enter, for a condi­tion broken; As if a trader makes a Feoffment, upon condition to be per­formed on the part of the Feoffee; the Feoffee breaks the Condition, and be­fore entry, the Feoffor becomes a Bank­rupt: It should seem, the Commissi­oners may take advantage hereof; for the Statutes shall be liberally expounded for relief of the Creditors: if not, yet it seems to be comprehended within the words of 13 El. cap. 7. whereby power is given to the Commissioners, to take order and direction with the Bankrupts Lands, &c. for such use, interest, right or title, as such offendor or offendors shall have in the same, which word (Ti­tle) includes, as I conceive, an entry for a condition broken: yet Stone makes a quaere of it in his Lecture, fo. 12.

(53.) Lands, Tenements, &c. in­tailed:Lands intailed. The Commissioners, or the greater number of them, shall have power by deed indented and inrolled within six months, &c. to grant, bar­gain, sell and convey any Manors, Lands, Tenements or Hereditaments, whereof the Bankrupt is, or shall be in any wise [Page 117] seized in Tail, in possession, reversion or remainder (and whereof no reversion or remainder is or shall be in the Kings Ma­jesty, his Heirs or Successors, of the gift or provision of his Majesty, his Pro­genitors, Heirs or Successors:) to any person or persons, for the relief and be­nefit of the Creditors, of all such Bank­rupts: And that all and every such grants, &c. shall be good and available in Law against the Bankrupt, his Issue, and all claiming by, from, or under him, since the time that he became Bankrupt: and also against all other persons, whom the Bankrupt by common Recovery, or other ways or means might cut off or de­bar from any Remainder, Reversion, Rent, Profit, Title, or possiblity into, or out of any of the said Manors, Lands, Tenements or Hereditaments, 21 Jac. cap. 19.

(54.) Also Lands, Tenements, &c. Lands descend­ed. purchased by, or descended or come to the Bankrupt before his debts payed or agreed for, as appears by 13 Eliz. cap. 7. where it is thus; That if any person or persons, which is, or shall be published and declared to be a Bankrupt, by vertue of this Act, shall at any time hereafter, purchase any Lands, Tenements, Here­ditaments, [Page 118] Free or Copy; or Offices, Fees, Goods or Chattels; or that any Lands, Tenements, Hereditaments, Free or Copy, Offices, Fees, Goods or Chattels, shall descend, revert, or by any means come to any such person or persons being Bankrupts, as is aforesaid: before such time as their debts due to their Creditors shall fully be satisfied, and payed, or otherwise agreed for: That then the said Lands, &c. shall be sold by the said Commissioners, or the more part of them, for and towards the payment of the Creditors, in such manner, as other Lands, &c. of the Bankrupts, which they had when they were first declared to be Bankrupts, should or might have been, &c. 13 El. cap. 7.

(55.) If after the commission award­ed, &c. and distribution made of all the Bankrupts Estate, towards the satisfaction of the Creditors; every Creditor ha­ving an equal part: Lands, Goods, &c. descend or come to the Bankrupt; Mr. Stone makes a quere (fo. 17.) whether in such case, they shall be subject also to a new sale or distribution: And it seems that they shall, for the Commis­sioners power is not fully executed until the Creditors be satisfied.

(56.) The Commissioners have alsoLands exte [...]d­ed. power to sell Lands, Tenements, &c. of the Bankrupts extended, by such as pretend to be accomptants to the King; by 21 Jac. cap. 19. It is thus; If i [...] shall happen any Lands, Tenements, &c. Goods, Chattels, Debts, or other Estate of any Bankrupt to be extended, after such time as he or she is become a Bank­rupt, by any person or persons, under colour or pretence of his or their being ac­comptant, or any ways indebted unto our Soveraign Lord the King's Majesty, his Heirs or Successors: That then, it shall and may be lawful, to and for the said Commissioners, to examine upon Oath, whether the said debt were due to such debtor or accomptant, upon any bargain or contract originally made between such accomptant, and the said Bankrupt, &c. and his or their Servants: And if the said Bargain or Contract was originally made, to and with any other person or persons, than the said Debtor or Accomp­tant, or for the use or trust of anyother person or persons: Then it shall and may be lawful, to and for the said Commissio­ners, or the greater part of them, to order and dispose of all such Lands, &c. to and for the use of the Creditors, which shall [Page 120] seek relief by the said Commission: And that the order and disposition of the said Commissioners, or the greater part of them, shall be good and available against the said extent; And that such person and per­sons, to whom the said Lands, &c. shall be bargained, sold, &c. by the said Com­missioners as aforesaid, or the greater part of them, shall have good remedy to have, demand, and recover the same, against such person or persons that shall detain the same, &c. 21 Jac. cap 19.

(57.) The Commissioners cannotLands convey­ed by the Bank­rupt, bonafide. sell any Lands; Tenements, Heredita­ments, conveyed by any such Bankrupt (bonafide) before he became Bankrupt: At the later end of 13 El. cap. 7. there is such a Proviso, viz. Provided always, that this Act shall not extend to any Lands, Tenements or Hereditaments, free or copy-hold, which heretofore hath been assured by any such Bankrupt; or hereafter shall be assured by any Bank­rupt, before he became Bankrupt; so that always such assurance be made, bonafide, and not to the use of the Bankrupt him­self only, or his Heirs: And that the parties to whose use such assurance hath or shall be made, be not at or be­fore the making of such assurance, privy, [Page 121] or consenting to the fraudulent purpose of any such Bankrupt, to deceive his Creditors, 13 El. cap. 7.

(58.) It was resolved (Cook lib. 2. 26. a. case of Bankrupts) by the Court, That the Proviso concerning gifts and grants (bona fide) doth not make any gift or grant good, which the Bankrupt made, after that he became Bankrupt, but to exclude him out of the penalty of the Act: I suppose this resolution should be applied to that part of 13 El. cap. 7. which imposeth the penalty or forfeiture of double the value, for detaining or pos­sessing fraudulently by covin or collusion any debts, &c. Lands, Tenements, &c. of the Bankrupts, other than such as are due, &c. and the same to proceed bona fide, without fraud or covin, &c. although in Poulton, the said Book and resolution be quoted in the Margine opposite to the Proviso; before set down in Sect. 57.

(59.) Also the Chattels and GoodsPersonal Estate. of the Bankrupts are saleable, &c. by the Commissioners, 13 El. cap. 7.I. Chattels Real.

Chattels real, as Leases for years. A Lease for years is made, Provided that the Lessee shall not alien; the Lessee be­comes a Bankrupt; It is a Quaere in Mr. Stones Lecture. fo. 15. whether the sale [Page 122] of the Commissioners to be a forfeiture? To which it may be answered in the ne­gative, that it is not, because this interest is transmitted by Act of Parliament, to which every man is intended party, and not by sale of the Lessee.

(60.) Offices are likewise mentionedOffices. in 13 Eliz. cap. 7. and made saleable by the Commissioners; which by Stone in his lecture fo. 13. is intended to be Offices of Inheritance, &c. as the War­den of the Fleet, and such like, and not Offices of Trust, &c. And by 3 H. 7. cap. 12. any Offices which concern the administration of Justice or Clerkship in any Court of Record, or which con­cern the Kings Treasure, Revenue, Cu­stoms, &c. cannot be bargained or sold for Money, but such bargain and sale is void; and both buyer and seller made in­capable, &c. Therefore doubtless, such offices cannot be assigned by the Com­missioners, in satisfaction of a Debt of the Bankrupts, nor are comprehended within the said Statute, there being other Offices that may be sold, and so the words of the Statute satisfied; and Of­fices of Trust are individually annexed to the person; vid. Coke lib. 9. 48. a. The Earl of Sbrewsburies case.

(61.) Secondly, The Bankrupts per­sonal2. Chattels perso­nal. Estate, Goods or Chattels of the Bankrupt, wheresoever to be found; by 13 El. cap. 7. are made saleable by the Commissioners: They may sell a Bank­rupts goods in Ireland, Stone in his Lecture fo. 90. A. hath an advowson, the Church becomes void, and then A. be­comes a Bankrupt: It is made a Quere by Mr. Stone in his Lecture, whether the Commissioners may sell it; and I sup­pose it may be answered negatively, that they cannot sell it; for it is a thing in Action, and so not saleable by the Com­mon Law; and no particular power is given by any of the Acts for sale of it, as there is for sale of Debts due to the Bankrupt, as hereafter appeareth: And without doubt, if the Commissioners pre­sent any one for money, it is Simo­ny.

(62.) Leases, Goods, Chattels, or Debts of the Bankrupt, by him convey­ed or procured to be conveyed or trans­ferred to any of his Children, or other person or persons, except the same shall be purchased, conveyed, or transferred, for or upon marriage of any of his or her children, both the parties married being [Page 124] of years of consent, or some valuable Consideration, 1 Jac. cap. 15.

(63.) Any Goods or Chattels that shall by any means come unto the Bank­rupt, before such time as his Debts shall be satisfied or agreed for; as well as other Chattels which the Bankrupt had, when first declared to be a Bankrupt, 13 Eliz. cap. 7.

(64.) Goods and Chattels extended of the Bankrupts, by pretended accomp­tants or debtors to the King; vide devant, Sect. 56.

(65.) Goods and Chattels of theGoods extend­ed. Bankrupt extended, or taken in execu­tion. Goods of the Bankrupts were ex­tended by vertue of a Statute; and the extent was before he became Bankrupt, but the Liberate after; and held that they could not be sold by the Commissioners of Bankrupts; because being extended they are in Custodia Legis, so that the cognizors have no power to give, sell, or otherwise dispose of them: And although the Cognizee hath no absolute property in them by the extent, and before the Li­berate, because at the return of the Li­berate, [Page 125] he may refuse them, if he will: yet that is for the advantage of the Cog­nizee, and the Cognizor hath no proper­ty in them, but only in case where the Cognizee refuseth them; for the goods are bound by the Teste of the Writ of extent or execution sued: and when the liberate is sued, it hath relation to the extent; and they are but as one ex­tent: Crook, part 3. 149, 150. Audley versus Halsey.

(66.) Goods and Chattels, whereofGoods possest by the Bankrupt. the Bankrupt hath the possession and dis­posal as his own: The words of the Statute are, Whereas many persons before they become Bankrupt do convey their goods unto other men, upon good considera­tion, and yet keep the same, and are repu­ted owners thereof, and do dispose of the same, as their own, Be it enacted, that if any person or persons shall become a Bank­rupt, and at such time as they shall so become a Bankrupt, shall by the consent and permission of the true owners or Pro­prietors, have in their possession, order, and disposition, any of the goods or chat­tels, whereof they shall be reputed owners, and take upon them the sale, alteration, and disposition of them as owners, the [Page 126] Commissioners, or greater number may sell, and dispose of the same, for the benefit of the Creditors. 21 Jac. 19.

(67.) Goods or Chattels passed a­way upon condition, or power of re­demption by the Bankrupt, 21 Jac. 19. vide, before Sect. 51.

(68.) Debts due to the BankruptDebts. are saleable, by 13 El. cap. 7. expresly; and although they are transferred into other mens names, by 1 Jac. chap. 15.

(69.) In an action upon the Case brought for words spoken by the Defen­dant against the Plaintiff, the Plaintiff recovered of the Defendant for Da­mages and Costs, twelve pounds: And after the execution sued, and money le­vied by the Sheriff (before the return of the Writ) the Plaintiff becomes a Bank­rupt, and the said twelve pounds is as­signed by the Commissioners to the cre­ditors, and the money being brought in­to Court, the Plaintiff [now a Bank­rupt] moves for it; and the Creditors to whom the same was assigned, likewise moved for it; and by Jones and Hide Justices, the assignment was good, be­cause it was the Bankrupts Debt, and for­feitable [Page 127] by out-lawry: but Whitlock and Crook Justices contra; because the Sheriff levying of the money before the party became a Bankrupt, it was in Custodi [...] legis, and the Creditors cannot give a discharge, nor are they parties in Court, and if the Judgment should be reversed, not compellable to make restitution: and afterwards it was judged accordingly; and that the money be delivered to the plain­tiff, he acknowledging satisfaction: also it was said, that the money was not the Plaintiffs until payed out of Court. Crook, part. 3. 166, 167. Benson vers. Flower and Backwel.

(69.) A. hath one in execution for Debt, and then he becomes a Bankrupt, the Commissioners assign the Debt, if the party escape, whether may this As­signee have an action of escape: this is a Quere in Mr. Stones Lecture, fol. 9. And I conceive may be answered in the affirmative; for by Westminster 2. chap. [...]1. Debt is given in such case against the Jaylor by the equity of that Statute, [for the words extend only to Accomp­ [...]ants.] And by 1 Jac. chap. 15. It is thus: That the Commissioners of Bank­rupt, [Page 128] or the greater part of them shall have power to grant and assign, or other­wise to order and dispose all or any of the Debt due; or to be due, to and for the be­nefit of the said Bankrupt, by what person or persons soever, or in what manner or form soever, to the use of the Creditors of the said Bankrupt, according to the true intent of the former Statute of Bankrupts: And that the same grant, assignment, or disposition of the said Debts, in form a­foresaid, to be made by the said Commis­sioners, or any part of them, shall so vest the property, right, and interest of the said Debt and Debts, in the person or persons of him, her, or them, to whom it shall be granted, &c. by the said Com­missioners, as fully to all intents and pur­poses, as if the said Bill, Bond, &c. Judgment, or Contract, where­on the said Debt, or Debts shall arise or grow, had been with the person or persons to whom the same shall be granted, &c. And that after such grant, assignment, or disposition: neither the Bankrupts, nor any other shall have power to receive, recover, or release it, &c. 1 Jac. 15. So that by the assignment, the Debt is vest­ed to all intents and purposes in the Grantee, as if he had been the origina [...] [Page 129] Debtor, might have had his action against the Sheriff, therefore the Gran­tee: and the Statute shall be liberally expounded for the relief of Creditors, especially, seeing in this case the As­signee or Grantee, is without any reme­dy for the Debt, if he cannot relieve himself against the Sheriff.

(70.) And Mr. Stone in his Le­cture makes another Quere, whether he that comes in as Creditor, and hath a debt made over unto him by the Com­missioners, &c. may not be barred not­withstanding by the Statute of limita­tions. And it may be answered that he shall be barred, for neither of the Sta­tutes gives the Assignee any larger pow­er, &c. than the original debtor had: also the Statute of limitation, was made for quieting of mens estates, and avoid­ing of Suits, which Statute, shall not be taken away without special words.

(71.) Such things as the BankruptThin disposed of by the Bank­rupt. himself disposed to the satisfaction of some of the Creditors, after that he be­came a Bankrupt, for the Statute of 13 Eliz. chap. 7. is, That the Commis­sioners must distribute to the Creditors share and share alike, &c. and that eve­ry such bargain, sale, &c. shall be good [Page 130] and effectual against the offendors and all persons, &c. And if the debtor after that he becomes a Bankrupt, may prefer one Creditor before another, it would be unreasonable, and a great defect in Law, that after he hath utterly discredited himself by becoming a Bankrupt, the Law should intrust him with the di­stribution of his Goods. Cook, lib. 2. 25. b. 26. a. Case of Bankrupts.

Now observe the means of discovery, and obtaining of the Bankrupts Estate.

(72.) It is enacted by 21 Jac. chap. 19. that the Commissioners, in executionBreak open Houses. of their Commission, or the greater part of them, or any other person or persons, officer, or officers by them or the greater part of them to be deputed, or appoint­ed by their warrant or warrants under their hands and seals, may break open the house or houses, chambers, shops, ware-houses, doors, trunks, or chests of the Bankrupt, where the said Bank­rupt, or any of his goods, or estate shall be, or reputed to be, and seize upon and order the Body, goods, chat­tels, ready money, and other estate of such Bankrupt, as by former Laws are limited and appointed, &c. 21 Jac. cap. 19.

(73.) Next by examination and pu­nishmentExami­nation of per­sons by the Com­mission­ers. of persons: 1. The Bank­rupt himself, they may compel him to come before them: vide before Sect. 39.) They have power to examine him upon oath, upon such interrogatories touch­ing his Lands, Tenements, goods, chat­tels, debts, bills, bonds, books of ac­compt, and such other things as may tend to disclose his or their estate, or the secret grants, conveyances, and [...]loyning of his, her, or their Lands, Tenements, goods, money and debts, as they shall think fit, 1 Jac. chap. 15.

(74.) Then observe the Bankrupts punishment in case of his refractoriness or deceit: first, for his not appearance before the Commissioners, vide before Sect. 39.) Secondly, in case he refuse to be examined, or answer not fully to every interrogatory to him to be admi­nistred by the said Commissioners or the greater part of them, it shall be lawful for the said Commissioners, or the greater part of them, to commit the said offendor or offendors to some streight or close imprisonment, there to remain, until he, she or they shall better conform him, or her self: 1 Jac. chap. 15.

(75.) Thirdly, For his perjury: If Bank­rupts perjury. upon his, her, or their examination, it shall appear that he or she, or they have committed any wilful or corrupt perjury▪ tending to the hurt or damage of th [...] Creditors of the said Bankrupt, to the value of 10 lib. of lawful money of Eng­gland, or above; the party so offending shall or may be thereof indicted, in any of the Kings Majesties Courts of Record, and being lawfully convicted thereof, shall stand upon the Pillory in some publick place, by the space of two hours, and have one of his Ears, nailed to the Pillory and cut off: 1 Jac. cap. 15.

(76.) Fourthly, For the BankruptsHis fraud. fraud: And if any Bankrupt shall upon his or her examination to be taken before the said Commissioners (executing the said Commission) be found fraudulently or deceitfully to have conveyed away his or her goods, chattels, lands, tenements, offices, &c. or other estate, or any part thereof to the value of 20 lib. or above; to the end and purpose to hinder the exe­cution of this Statute, or of any other the aforesaid Statutes, or thereby to defraud, or delay, or hinder his or her Creditors of the same; and shall not upon his or her examination, discover unto the said Com­missioners, [Page 133] and (if it lie in his or her power) deliver unto the said Commissio­ners, all that estate, goods, and chattels, so fraudulently and deceitfully conveyed away as aforesaid, or by him, or her, his or her means kept or detained from the said Commissioners: or that cannot make it appear unto the said Commissioners, that he or she hath sustained some casual loss, whereby he or she is disabled to pay what he, or she then owed; the offendor shall or may be indicted for such fraud, or abuse at the Assizes, or general Ses­sions, to be holden, before the Judges of As­size, or Justices of Peace, of the County or place, where he, or she shall become Bankrupt: and if upon such Indictment, or Indictments, the Bankrupts be thereof convicted, he, or she so convicted, shall be set in the Pillory in some publick place, for the space of two hours, and have one of his, or her ears nayled to the Pillory, and cut off. 21 Jac. cap. 19.

(77.) Secondly, By examination ofWife of the Bank­rupt. the Bankrupts wife: After such time as any person shall by the said Commissio­ners, executing the said Commission, or the greater part of them, be lawfully ad­judged, or declared to be a Bankrupt, the said Commissioners, executing such [Page 134] Commission, shall have power and au­thority upon oath to examine the wife and wives of all and every such Bank­rupts, for the finding out and discovery of the estate and estates, goods, and chattels of such Bankrupt or Bankrupts, concealed, kept, or disposed of by such wife or wives, in their own persons, or by their own act or means, or by any other person or persons: And that she, and they, the said wife and wives shall incur such danger and penal­ty, for not coming before the said Com­missioners, or for refusing to be sworn, or examined; or for not disclosing of the truth, upon her, or their examination or examinations, as in and by the former Laws, or either of them, is already made and provided against any other person or persons in like cases: 21 Jac. chap. 19.

(78.) Thirdly, By examination ofOther persons. other persons. Any person known or sus­pected to have any of the Bankrupts estate, debts, &c. Wherein note▪ First, the power of the Commissioners to bring them before them; the Commissioners upon complaint made to them by any party grieved, knowing, supposing, or suspecting any of the goods, chattels, [Page 135] wares, Merchandizes, or debts of such of­fendor or offendors, to be in custody, use, occupying, keeping, or possession of any person or persons; or any person or per­sons to be indebted to any such offendor or offendors, and do make relation there­of to the said Commissioners so to be ap­pointed, or the more part of them, That then the said Commissioners, or the more part of them shall have full power and authority to send for, and call before them, by such process, ways, and means, as they shall think convenient, all and every such person or persons, so known, or suspected to have any such goods, chattels, wares, &c. in his or their cu­stody, use, occupation, keeping, or pos­session, or supposed, or suspected to be indebted to such offendor or offendors: And secondly, to examine them: upon their appearance, the Commissioners may examine them, and every of them, as well by their oaths, as otherwise by such means as the said Commissioners, or the more part of them shall think fit, for and upon the specialty, certainty, and true declaration and knowledge of all and singular such goods, chattels, wares, merchandizes and debts, of any such of­fendor or offendors, as be supposed, or [Page 136] suspected to be owing to any such of­fendor or offendors, 13 Eliz. chap. 7.

(79.) And in the next and thirdRefusing to come before the Com­mission­ers. place, take notice of the punishment of such other persons; first, for their refu­sing to come before the Commissioners, or to be sworn and make answer. And by the Statute of 1 Jac. chap. 15. It is set forth, that no good means was ap­pointed by 13 Eliz. either by imprison­ment, or other penalty, to procure per­sons to be suspected to have any part of the money, goods, chattels, or debts of the said offendors, or to be indebted to them, to come before the Commissio­ners, or to be examined by them, &c. and then enacts, That if any person, or persons being known, supposed, or sus­pected, to have or detain any part of the lands, tenements, or hereditaments, goods, chattels, or debts of the said Bank­rupt, or to be indebted to, or for the be­nefit of the said Bankrupt, shall after lawful warning to the said person or persons given, to come before the said Commissioners, or the greater part of them, to be examined, refuse to come, or shall not come before the said Commissi­oners at the time appointed, having no [Page 137] lawful impediment (such as shall be al­lowed by the said Commissioners, or the greater part of them;) or that any such person or persons, having knowledge or warning of any other assembly, or meet­ing of the said Commissioners shall not come and appear before them, at such time, as he or she may lawfully come, ha­ving no such lawful impediment, as shall be then made known to the said Commis­sioners, and by them admitted, and al­lowedRefusing to be sworn, and an­swer. as aforesaid. Or being come be­fore them, shall refuse to be sworn, and to make answer to such interrogatories as shall be ministred to him or them, according to the true intent and mean­ing of the said Statute of 13 Eliz. or of this Act: That then it shall be lawful for the said Commissioners, or the greater part of them, to commit to such ward or prisons, as to them, or the greater part of them, shall be thought meet, all suchTheir punish­ment. person and persons, as so refuse to be sworn, and make answer to such Inter­rogatories, as shall be so administred as aforesaid: 1 Jac. 15.

(80.) And also to direct their war­rants to such person or persons, as to them, or the greater part of them shall [Page 138] be thought meet, to apprehend and ar­rest such person and persons as shall re­fuse to appear before them as aforesaid, and to bring him, her, or them, before the said Commissioners, or the greater part of them, to be examined as afore­said; and upon their refusal, to commit them to such Prisons as the Commissio­ners shall think meet, there to remain without Bail or Mainprise, until their submission to the Commissioners to be examined, &c. 2 Jac. cap. 15.

(81.) But by 13 Eliz. cap. 7. in case any such person or persons, upon exami­nation, do not discover the truth touch­ing the said things whereof they are ex­amined by the Commissioners as afore­said, or do deny to swear, he is to forfeit double the value of the thing concealed, (vid. apres, forfeiture,) which doubt­less is not taken away by 1 Jac. cap. 15. but the imprisonment is thereby added as a further penalty; and to force the parties suspected to have any of the Bankrupts Estate, to come before the Commissioners and make a discovery: Also it may be observed, that the Statute of 13 Eliz. mentioneth only the con­cealing of the personal Estate, but 1 Jac. [Page 139] cap. 15. Extends to Lands, Tenements, &c. as before, that are so with-held or conceal'd.

(82.) Thirdly, For their Perjury.Their Perjury: 1 Jac. cap. 15. If any person or persons, other than the Bankrupt, either by subornation, unlaw­ful procurement, sinister perswasion or means of any others, or by his own act, consent or agreement; shall wilfully and corruptly commit any manner of wilful Perjury, by his deposition to be taken before the said Commissioners, or the greater part of them, as aforesaid; That then the party or parties so offending; and all and every person and persons, that shall unlawfully and corruptly pro­cure any such unlawful, wilful, and cor­rupt Perjury, shall or may therefore be indicted in any of the Kings Majesties Courts of Record; and after his or their conviction thereof, shall inour such for­feiture, and receive and suffer such pains and punishment as are limited by the Statute made concerning Perjury, (viz. 5 El. cap. 9.) Now the punishment ap­pointed for Perjury by that Statute is, That the person committing Perjury shall forfeit 20 l. and endure half a years imprisonment without Bail or Mainprise, [Page 140] and his Oath never after to be received, &c. And if he hath no Goods or Lands of that value; then he is to be set in the Pillory, in some Market-Town, and to have both his ears nailed, and to be dis­abled to be a Witness in any Court of Record, vid. 5 Eliz. cap. 9. and by the same Stat. of 5 Eliz. the Procurers of Perjury are to forfeit 40 l. and if they have no Estate of that value, then to suf­fer half a years imprisonment, without Bail or Mainprise, and to stand in the Pillory by the space of an hour, and in some Market-Town next adjoyning to the place where the offence was done, and never after to be admitted to be a Witness in any Court of Record.

(83.) Fourthly, Concealing of theConceal­ing the Bank­rupts Estate. Bankrupts Estate: Any person being known or suspected to have any Goods, Chattels, &c. of the Bankrupts, or to be indebted to him, if he doth not upon examination disclose, and plainly declare his knowledge concerning the Premises, or doth deny to swear; Then every such person (upon due proof thereof be­fore the Commissioners, by Witness, Examination, or otherwise, as they shall think fit) shall lose and forfeit double [Page 141] the value of such Goods, Chattels, Debts, &c. by them or any of them so concealed, 13 Eliz. cap. 7.

(84.) Fraud: If any person or per­sonsFraud▪ do fraudulently, by covin or collu­sion claim, demand, recover, possess or detain any Debts, Duties, Goods, Chat­tels, Lands or Tenements, by writing, trust, or otherwise, which were or shall be due, belonging or appertaining to any such offendor or offendors, other than such as he or they can and do prove to be due by right and conscience for mo­ney paid, wares delivered, or other just consideration, or cause reasonable to the just value thereof, before the said Com­missioners so to be appointed, or the more part of them, as is aforesaid; and the same to proceed (bona fide) with­out fraud or covin; That then every such person or persons so craftily demanding, having or detaining any such debt, duty, or other thing, as is aforesaid, shall for­feit and lose double as much as he or they shall so claim, demand, detain or possess, 13 Eliz. cap. 7.

(85.) The said Forfeitures of doubleForfei­tures how im­ployed. the value in both the cases before men­tioned, are to be levied and imployed [Page 142] by the Commissioners, as followeth, viz. The said Commissioners, or the more part of them is to levy the same of the Lands, Tenements, Hereditaments, Goods and Chattels of the persons of­fending, by such ways and means, and in such manner and form as is before li­mited and appointed for the principal offendor or offendors, debtor or debtors▪ and the same forfeiture or forfeitures to be distributed and imployed to and for the satisfaction and payment of the debts of the said Creditor or Creditors, in such manner, rate and form, as is byVid. Post the Statute declared concerning the or­dering of the Lands and Tenements, Offices, Fees, Goods and Chattels of such offendor or offendors, debtor or debtors, 13 Eliz cap. 7.

(86.) Over-plus: And if it shall for­tuneOver­plus. the Creditors of any such Bank­rupt to be satisfied and payed off their debts and duties, of or with the proper Lands, Tenements, Goods, Chattels, and Debts of the said Bankrupts, or of o [...] with the same and some part of the for­feitures of the said double values, to be forfeited as aforesaid; and that there shall remain an over-plus of the said [Page 143] forfeitures of the double values; That then one moyetie thereof shall be by the said Commissioners, within conveni­ent time after the levying thereof, paid unto the Queens Majesty, her Heirs and Successors; and the other moyetie shall be by the said Commissioners imployed and distributed to and amongst the Poor, within the Hospitals, in every Ci­ty, Town or Country, where any such Bankrupt shall happen to be, 13 Eliz. cap. 7. But the forfeitures by 1 Jac. cap. 15. [being for Perjury and suborn­ing of Perjury] is by the said Act to be sued for, and recovered by the Credi­tors only, or any of them that will sue for the same, by action of Debt, Bill, Plaint, or Information in any of the Kings Courts of Record; and the sum and sums of money so recover [...]d, (the charges of suit being deducted) shall be distributed, and divided towards the payment of the said Creditors of the said Bankrupt, 1 Jac. cap. 15.

(87.) The allowance to Witnesses:Allow­ance to Witnes­ses. Provided always, That such Witnesses as shall be sent for by the Commission­ers, shall have such Costs and Charges as the Commissioners in their discretion [Page 144] shall think fit: The same charges to be rateably born by the Creditors of the said Bankrupt, according to the propor­tion of each of their several Debts, 1 Jac. cap. 15.

The next thing to be considered, is the manner of the ordering and disposal of the Bankrupts Estate by the Com­missioners.

(88.) First, in General, The Com­missionersIn Gene­ral. may according to their dis­cretion, order the estate of the Bankrupt for the Creditors satisfaction, 13 Eliz. In Parti­cular. cap. 7. Secondly, more Particularly, First, by views and appraisement; The Commissioners may cause the Bankrupts Lands, Tenements, Fees, Annuities, Offices, Goods, Chattels, Wares, Mer­chandises and Debts, to be searched,View, appraise­ment. viewed, rented, and appraised, to the best value they may, 13 Eliz. cap. 7.

(89.) Secondly, by Sale: 1. To whomSale. may they sell? The Statute of 13 Eliz. cap. 7. is, that the Commissioners may sell, without mentioning to whom; and by 21 Jac. 19. which giveth power to the Commissioners to sell entailed lands, [Page 145] it is to any person or persons; which surely is intended to persons capable, and not to aliens, although they be Cre­ditors.

(90.) Thirdly, Of what? Of allof what. Lands, Tenements, Hereditaments, and Deeds, Evidences and Writings touch­ing the same; and of all Fees, Offices, Goods and Chattels of [...]he offendor, as is before set down.

(91.) Fourthly, in what Manner?How. as to the Lands, Tenements, Goods and Chattels in general of the Bankrupts; the sale is to be by Deed Indented and enrolled in any of his Majesties Courts of Record, or otherwise to be ordered by the Commissioners, for satisfaction of the Creditors, 13 Eliz. cap. 7. And therefore, although the sale be not by Deed inrolled, acco [...]ding to the words of the Act, yet it is good enough, Cooke, lib. 2. 25. 26. case of Bankrupts: A Rent Seck, whereof there is no seisin, shall be sold, and the sale is good with­out Attornement; Stones Lectur [...], 174. quere.

(92.) As to lands intail'd of the Ban­krupt,Intail'd Land [...]. [Page 146] the Commissioners, or the greater number of them, are impowred by 21 Ja [...]. cap. 19. by Deed Indented and In­olled within six months after the ma­king thereof, in some of his Majesties Courts of Record at Westminster, to grant, bar gain, sell and convey any Ma­nors, Lands, Tenements, or Heredita­ments, whereof any Bankrupt is or shall be any ways seized of any estate in Tail, in Possession, Reversion, or Remainder, and whereof no Reversion or Remain­der is or shall be in the Kings Majestie, his Heirs or Successors, of the gift or provision of his Majesty, his progenitors, his Heirs or Successors, to any person or persons, for the relief and benefit of the Creditors, 21 Jac. cap. 19. vide before Sect. 53.

(93.) As to Copy-hold; or customaryCopy­hold. Lands, they are to be sold by Deed In­dented and Inrolled in any of his Maje­sties Courts of Record, &c. as other the Lands and Estate of the Bankrupt are appointed to be by 13 Eliz. cap. 7. But by the same Statute it is provided, That all and every person or persons, to whom any such sale of Copy-hold, or customary Lands or Tenements shall be made; [Page 147] shall, before such time, as they or any of them, shall enter or take any profits of the same Lands or Tenements; agree, &c compound with the Lords of the Man­nors of whom the same shall be holden, for such Fines or Incomes as heretofore have been most usually and accustomed to be yielded or paid therefore▪ And up­on every such agreement or composition the said Lords for the time being, at the next Court to be holden at or for the said mannors; shall not only grant unto the said Vendee or Vendees upon request the same Copy or Customary Lands or Tenements, by Copy of Court-Roll of the said Manors, for such estate or In­terest as to them shall be sold, and reser­ving the antient Rents, Customes and Services; but also, in the same Court▪ admit them Tenants of the same Copy or Customary Lands, as other Copy­holders of the same Mannors have been wont to be admitted, and to receive their fealty accordingly, 13 Eliz. cap. 7.

(94.) A Copy-holder surrenders, & before admittance cestuy que use; be­comes a Bankrupt; The Commissioners sell the Copy-hold, whether shall the Lord have 2 Fines, viz. one upon the [Page 148] admittance of which should have been made to cestuy que use, if he had not become a Bankrupt; and another upon the admittance of the person that comes in by sale of the Commissioners of Ban­krupts: and this is a quere in Mr. Stones Lecture, fol. 137. and it is there com­pared to a surrender made by the Heir before admittance, which is held to be good, but not to prejudice the Lord of his Fine due upon the Descent, Cooke, lib. 4. 226.

(95.) If the Vendee of a Copy-hold tender to the Lord a competent Fine, and the Lord refuse it; The Vendee may enter, Stones Lecture, 176. The Commissioners may sell Copy-hold in­tail'd, which by custome may be intail'd and cut off, otherwise, if there be no such custome, Stones Lecture, 176. I conceive, if there be no such custome, then it is in nature of a Fee-simple con­ditional at the Common Law, and then if the condition be performed, viz. if the Copy-holder hath issue, &c. the Com­missioners may fell it, as I suppose.

(96.) As to a Condition, Lands, Goods, &c. of the Bankrupt, made over [Page 149] by him upon condition or power of Redemption, the Commissioners before the time of the performance of the con­dition, may appoint under their hands and seals, such as they shall think fit to perform the condition; and after such performance, shall dispose of such lands or goods for the Creditors advantage, as fully as of any other of the Bankrupts Estate, 21 Jac▪ Cap. 19. vid. devant, Sect. (51.)

(97.) As to lands, &c. extended by a pretended Debtor or accomptant to the King, after that the party shall become a Bankrupt, 21 Jac. cap. 19. vid. Sect. 56. where it is set forth at large.

(98.) As to debts owing to the Ban­krupt, vid. before Sect. 68. Suppose a Bankrupt be indebted to one 20 l. and to another 10 l. and hath a debt of 20 l. due to him by Bond; whether may the Commissioners assign the Bond to the two Creditors joyntly; and it was held by the Court, that it was to be divided and assigned according to the words of the Act, viz. to every Creditor a por­tion, part and part-like: Then another question was offered, whether the As­signees [Page 150] might joyn in suit; and by War­berton, one of the Justices, part being as­signed to one, and part to another, the Act of Parliament doth so operate upon it, that they shall sue severally: for he said, by the custome of London, part of a debt might be attached, Godbolts Re­ports, 195. p. 282.

(99.) Thirdly; Note, the distributi­onDistri­bution of the Bank­rupts E­state. made by the Commissioners, of the Bankrupts Estate, wherein observe; first, to what Creditors in general: It is en­acted by 21 Jac. cap. 19. That the said Act, and all other Acts of Parliament formerly made against Bankrupts, should extend to strangers born, as well Aliens as Denizens, as effectually as to the na­tural born Subiects, both to make them subject to the Law, as Bankrupts, as al­so to make them capable of the benefit of contribution, as Creditors by those Laws: So, that satisfaction is to be made to all, as well Aliens as Denizens, &c.

(100.) Also, It is enacted by 21 Jac. cap. 19. That for the better distri­bution of the Lands, &c. Goods, Chat­tels, &c. of the Bankrupt, to and amongst his Creditors; The Commissioners or the greatest part of them, shall and [Page 151] may examine upon Oath, or by any o­ther waies or means, as to them shall seem meet, any person or persons for the finding out, and discovery of the truth and certainty of the several debts due and owing to all such Creditor or Cre­ditors, as shall seek relief by such course of Commission to be sued forth, &c. 21. Jac. 19.

(101.) A. and B. are sureties for I S. for the payment of Money, and had Counter-Bonds from I S. to save them harmless, the money was not payed at the day, the sureties pay it: I S. after becomes a Bankrupt; Resolved, that A. and B. were Creditors, within the Statutes of Bankrupts: Crooke, part 2. 127. Osborne and Churchman's case; Mr. Stone in his Lecture, fol. 18. makes a Querie; whether, one becoming a Creditor to the Bankrupt after that he had notice that he was a Bankrupt, might be a Creditor, relievable within the Sta­tutes: To which it may be answered in the negative; for if the Law disables him to dispose of his Estate, (after he becomes a Bankrupt) directly Then he cannot dispose of it by a mean, viz. by becoming a Debtor, and so to make [Page 152] his Lands and Goods liable to his Debt, if in the case before, such a Creditor were relieveable: and Stone seems to be of the same opinion, when he saith; A Bankrupt is committed to Prison, be­cause he will not answer Interrogatories, the Gao ler gives him credit for victuals, he shall not be relieved, although he come in before distribution, fol. 183:

(102.) A Merchant is imprisoned, and after becomes a Debtor to A. and then the six months passe, A. is a Cre­ditor relievable; for he is not a Bank­rupt by relation, Stones Lecture, 182. The Statute of 21 Jac. cap. 19. makes one a Bankrupt by relation from the time of his Arrest, only in two cases, viz either when he makes an Escape, or comes out upon common Bail, which enumeration I suppose, excludes (rela­tion) in other cases, in a penal act of Parliament.

(103.) A Bankrupt is convicted for inmates, and the Statute gives an action of Debt in such case to the Lord of the Leet, &c. he is no Creditor, within the Statute of Bankrupts; Stones Lecture, fol. 21. for I conceive this is not pro­perly [Page 153] a Debt, but only a means given to recover a Forfeiture, and by Stone, a Mortgages of Lands may chuse whether he will come in as a Creditor, fol. 181. There is before a special provision for satisfying of a condition by payment of the money, &c. by which it is intended, that the Mortgagee was never to be ac­compted as a Creditor.

(104.) It was decreed in Star-Chamber, that a Merchant for a wrong done by him to I. S. should pay him [...]ol. and the Merchant becomes a Bankrupt, IS. is no Creditor, Stones Lecture, 184. for this is no Debt due for moneys bor­rowed, or upon any original contract; but only a payment laid on by the Court, and an action of Debt (as it is conceived) lies not for it; but only the party is to be punished by the Court, if he perform not the decree.

(105.) Secondly, more particularly, any Creditor coming in within four months after the commission sued forth by 1 Jac. cap. 15. The words are; And that it shall and may be lawful for any of the Creditors of the said Bankrupt, within four months after any such Com­mission [Page 154] shall be sued forth, and until di­stribution shall be made by the said Commissioners for the payment of the Bankrupts debts, as in such case hath been used to partake and joyn with the other Creditors that shall sue forth any such Commission for satisfaction or pay­ment of his, her, or their debts to him or them owing, without any let, hindrance or disturbance of any of the same Com­missioners, or of any of the other Credi­tors of the said Bankrupts: the same Creditors so coming in, to contribute to the charge of the said Commission: and that if the Creditors come not in with­in four months, then the Commissioners to have power to distribute: 1 Jac. chap. 15.

(106.) In a Case of one Ruggles of Suffolk, upon view of the Statutes of 13 El. c. 7. & 1 Jac. c. 15. of Bankrupts, it was resolved by the Court, that if cer­tain Creditors sue a Commission, and o­thers within four months after, or more, being Creditors, come before distribu­tion, and will joyn in the charge of the Commission, and all that belongs to it, and tender their parts thereof: that they shall not be refused, but shall have their equal parts, as Creditors; but if [Page 155] any distribution be made of any part of the estate, no Creditors are to be ad­mitted after, that came not in before: Hobart, 287. Ruggles Case.

(107.) A Commission was sued out by some of the Creditors of the Bank­rupt, and they pursued it; and the Lands were sold, & after other Creditors pray­ed to be joyned with them: Resolved in this case, First, That the Commissio­ners may sell and prepare for distribu­tion, presently upon the execution of the Commission, but untill the four months past, they may not proceed to distribution▪ Secondly, That in this case the offer of the Creditors, to be joyned was not an effectual offer, without offer­ing to be contributory to the charge, but to offer any particular sum is not neces­sary; and these words (for the charge of the Commission) are to be extended to all charges, arising in suing forth of the Commission, and in execution, and defence thereof. Thirdly, Resolved, That at any time before distribution, the Creditors may come & pray to be joyn­ed, but after the four months past, and distribution made, they come too late for so the distribution may be made void' [Page 156] Hutton 37, 38. Ruggles case, Hughes Abridgments, 316. Case 2.

(108.) Next, observe the time ofTime of distribu­tion. satisfaction, or distribution, it seems it must not be, untill four months after the Commission sued forth; for so much time is given to other Creditors to come in and joyn in the Commission, and if the Creditors come not in within that time, the Commissioners may distribute, 1 Jac. chap. 15.

(109.) The manner of the distribu­tion: No respect is to be had to the na­tureManner of distri­bution. of the security, for by 13 El. 7. the Commissioners are to sell, or otherwise to order the Bankrupts estate, for true satisfaction and payment of the Credi­tors, rate and rate like, according to the Quantity of his or their debts, 23 El. chap. 7. A debt due to the Bankrupt by Bond, cannot be assigned to two of his Creditors joyntly, but part to one and part to another, and by vertue of the Statutes, they may sue severally. &c. Godbolts Reports, 195.

(110.) The Commissioners ought to make a several distribution to the Cre­ditors, and not a joynt-sale, for the Act [Page 157] saith 13 [...] 7. it must be to every one, rate, and rate-like, but where a debt is joyntly due, there the Commissioners may satis­fie the same, by a joynt sale to them, Cook, lib. 2. 26. b. Case of Bank­rupts.

(111.) All and every Creditor, and Creditors, having security for his or their several debts by Judgment, Sta­tute, Recognizance, specialty with pe­nalty, or without penalty, or other secu­rity, or having no security, or having made attachment in London, or any o­ther place, by vertue of any custom there used of the goods and chattels of any such Bankrupt, whereof there is no ex­ecution or extent served and executed, upon any the Lands, Tenements, Here­ditaments, Goods, Chattels, and other estate of such Bankrupt, before such time, as he, or, she, shall or do become Bankrupt, shall not be relieved upon any such Judgment, Statute, Recognizance, Specialty, Attachments, or other secu­rity for any more than a [...]ateable part, of their just and due debts, with the o­ther Creditors of the said Bankrupts, without respect to any such penalty or greater sum contained in any Judgment, [Page 158] Statute, Recognizance, Specialty, &c. or other security, 21 Jac. chap. 19. I suppose security by Mortgage of Lands, cannot be within this Statute, for there is particular provision for the same, in the same Statute, 21 Jac. 19. nor are lands extended as it seems within the said clause, by reason of the words be­fore, [whereof there is no execution or ex­tent served or executed.]

The next thing considerable is, the effect of the distribution, made by the Com­missioners, as aforesaid.

(112.) First in general, as to Lands, Tenements, Hereditaments, goods, chat­tels, and other estate of the Bankrupt: by 13 Eliz. chap. 7. It is enacted, That every direction, order, bargain, sale, and things done by the said persons, so autho­rized [viz the Commissioners or greater number of them] shall be good and ef­fectual in the Law, to all intents, constru­ctions and purposes, against the said of­fender or offenders, debtor or debtors, his or their wife or wives, heir and heirs, child and children, and such person and persons, as by joynt purchase with the said offender or offenders, shall have any [Page 159] estate, or interest in the premises; and against all other person and persons, clai­ming by, from, or under such offender or offenders, debtor or debtors, by any Act or Acts; had, made, or done, after any such person shall become Bankrupt, as aforesaid; and also against the Lords of the Mannors. &c. [vide after for Copy-holds,] 13 Eliz. chap. 7. But not to bar any purchaser upon valuable con­sideration, unless the Commission be su­ed forth within five years after the par­ty becomes a Bankrupt; by 21 Jac. chap. 19.

(113.) Secondly, As to Lands in­tailedLands intay­led. of the Bankrupts: the Statute gives power to the Commissioners to grant, bargain, and sell by deed in­rolled, Lands, &c. intailed of the Bankrupts, [vide devant, Sect. 53.] and then adds, that all and every such grants, bargains, sales, and conveyances shall be good and available in the Law, to such person or persons, and their heirs, against the said Bankrupts, and against all and every the issue of the bodies, of such Bankrupts, and against all, and every person or persons, claiming any estate, right, title, or interest, by, [Page 160] from, or under the said Bankrupts, after such time as such person shall become Bankrupt, and against all and every such person or persons whatsoever, whom the said Bankrupt, by common Recove­ry, or other way or means might cut off, or debar from any remainder, reversion; rent, profit, title, or possibility, into or out of any of the said Mannors, Lands, Tenements, or hereditaments: 21 Jac. chap. 19.

(114.) Thirdly as to the Copy holds,Copy­hold. the sale and dispositon of them▪ shall be good against the Bankrupts, to all intents and purposes, and against his or their wife or wives, heir and heirs, in like manner, as before for his other estate, Sect. 45. for there is no distinct clause for the Copy-holds; viz. And also a­gainst the Lords of the Mannors, where­of the said Customary, or Copy-hold Lands been holden, their Heirs, Succes­sors, and Assigns, and every of them: and there is a Proviso added, That the Ven­dees of such Copy-holds shall compound for their Fines with the Lords before entry: vide Sect. 93. before.

(115.) The sale of the Commissio­ners [Page 161] doth vest the Copy-hold estate, so in the Vendee before admittance, that the said Bankrupt cannot be said to be Tenant; and therefore if he dle before admittance, his wise shall not have any Customary estate, which by the custom she ought to have, when her husband dies Tenant; the Vendee is only ex­cluded by the Statute from entry, or ta­king of the profits, before composition made with the Lord, which is only for the Lords benefit, and not the Copy­holders; also it was held, that after com­position for the time, and the admittance of the Vendee, it shall relate to devest all Customary estates happening since the sale, and before the said composition and admittance. Crook, part 3. 568, 569. Parker vers. Edith Bleek.

(116.) If two Joynt-tenants be of Copy-hold [...]ands in Fee, and the one out of Court according to the custom, surrender his part to the Lords hands, according to the custom, to the use of his last will, and by his will deviseth a part to a stranger in fee; and dieth; and at the next Court the surrender is presented▪ by the surrender and presentment the Joynture was severed, and the Devisee [Page 162] ought to be admitted to the moiety of the Lands, for now by relation, the state of the Land was bound by the surren­der. Cook, sur Litt. 596.

(117.) As to the debts due to theDebts due to the Bank­rupt. Bankrupt, The Commissioners have power to grant, assign, or otherwise to order and dispose all or any debts due, or to be due, to, or for the benefit of the Bankrupt, by any person or persons whatsoever, or in what form soever, to the use of the Bankrupts Creditors, ac­cording to 13 Eliz. chap. 7. And that the same grant, assignment, or disposition of the said debts, shall so vest the pro­perty, right, and interest of the said debt and debts in the person or persons to whom the same shall be so granted, assigned, &c. as fully to all intents and purposes, as if the Bonds, Bills, Sta­tutes, Judgments, or contracts, where­upon such debt or debts did arise, or grow, had been made to or with the per­son or persons to whom the same shall be so assigned: And that after such grant, assignment, or disposition made of the said debts, neither the Bankrupt, nor any other to whom any such debt shall be due, shall have power to recover the same, nor to make any release or dis­charge [Page 163] thereof, neither shall the same be attached, as the debt of the Bank­rupt, or such said other person or per­sons to whom the same shall be due, by any other person or persons, according to the custom of the City of London, or otherwise, But that the party or par­ties to whom the said debt shall be as­signed, shall have like remedy to reco­ver the same, as fully and lawfully in the name, or names of the person or persons to whom the same shall be so granted, as­signed, or ordered by the said Commissio­ners, in all respects and purposes, as the party himself might have had: 1 Jac. chap. 15. Provided always, that no deb­tor of the Bankrupt be hereby indangered for the payment of his or their Debt, tru­ly and bona fide, to any such Bankrupt, before such time as he shall understand, or know that he is become a Bankrupt, 1 Jac. chap. 15.

(118.) To give means of Recove­ry; As to the debts of the Bankrupt, as­signed by the Commissioners; the assig­nee, shall have the like remedy to reco­ver the same, as fully and lawfully, as the party himself. 1 Jac. chap. 15.

(119.) The Assignees of the said debts may sue for them in their own [Page 164] names, because they are debts, transfer­red by Parliament; but yet notwith­standing, in case the action of debt arise upon a Contract, the Defendant may wage his Law; for although the Parlia­ment transferred the debt, yet it is no debt upon Record. Croke, part 2. 105. Bradshaws Case. A debt due by bond, assigned to two Creditors severally, they may sue severally for it: Godbolts Re­ports, fol. 195.

(120.) As to Lands, &c. of theLands extend­ed. Bankrupt extended by any pretended debt or accomptant to the King, after such time as the Bankrupt becomes a Bankrupt; such person or persons to whom the Commissioners, or major part, shall bargain, sell, grant or assign the said Lands, &c. shall have good remedy, to demand and recover the same, against such persons as detain the same. 21 Jac. chap. 19.

(121.) As to Lands, Tenements, &c. of the Bankrupts conveyed away upon condition the Commissioners have power to appoint one or more to per­form the condition, vide devant, Sect. 51.Credi­tor bar­ren.

(122.) Another effect of the Com­missioners [Page 165] distribution, is to bar the Cre­ditor: if any Creditor of the Bankrupts, shall not be fully satisfied, or otherwise contented, by such means as the Statute appointeth, they may have their remedy against the Bankrupt (as before they had) for the remainder, and shall be on­ly barred for so much as they are satis­fied, or contented for, and no more: 13 El. cap. 7.

(123.) Lastly, to restore the ca­pacityCapaci­ty of Bank­rupts. of the Bankrupt: The Bankrupt to have the overplus of his estate if any be, after that the Creditors are satisfied. And that the said Bankrupts after the full satisfaction of the said Creditors shall have power and authority to recover & receive the residue and remainder of the Debts to them owing. 1 Jac. chap. 15.

(124.) Next observe, the accompt ofRe­compt. the Commissioners to the Bankrupt: such of the said Commissioners as shall put the said Commission in execution shall upon lawful request to them made by the Bankrupt, not only make a true declara­tion to the said Bankrupts of imploying and bestowing of their said Lands, Te­nements, offices, Fees, goods, chattels, and debts so payed and satisfied to their [Page 166] said Creditors, but also make payment of the overplus of the same (if any such be) to the said Bankrupts, their exe­cutors, administrators, or assigns. 13 Eliz. chap. 7.

(125.) Remedy for the Commissio­ners in any action brought against them for acting by force of the said Statutes, they may plead not guilty, and justifie by the authority of the said Acts, and the Plaintiff to reply de son tort de mesme: and if the Verdict pass for the defen­dant, he shall have Costs: 1 Jac. cap. 15.