THE Law against Bankrupts: OR, A TREATISE Wherein the STATUTES AGAINST BANKRUPTS are Explained, BY Several Cases, Resolutions, Judg­ments and Decrees, both at Common Law and in Chancery. TOGETHER With the Learning of Declarations and Pleadings relating thereunto. To which are likewise added Forms and Directions for Commissioners, and Presi­sidents, sit for the perusal of Lawyers, or Merchants and Tradesmen.

Sic utere tuis, ut aliena non Laedas.

By T. G. Serjeant at Law.

LONDON, Printed for S. Heyrick, C. Harper, J. Place, J. Harrison, S. Keeble, D. Brown, J. Cleave, W. Rogers, R. Sare, W. Freeman, T. Goodwin, M. Wotton, R. Vincent, A. Ro­per, and J. Brixey, 1695.

THE PREFACE TO THE READER.

THE Statutes of Bankrupts, and the Proceedings thereup­on (to any persons who en­tertain the least Commerce, and know the World but at an ordinary rate) will certainly appear to be very im­portant; and not only in respect of the greatness of the Estates, the variety and multiplicity of Debts, Credits and Accounts, about which they are [Page] concerned (the effects whereof are derived down upon thousands of Fa­milies) but also in regard of the ex­tream Severities and Penalties which are inflicted on the Offenders. And I have often wondred, that so little hath been written on a Subject which makes so great a Figure a­mongst Men of Business, either at Westminster-Hall, or upon the Ex­change. Nay, I may add (to carry on this Reflection a little further) the concerns of Bankrupts, which were heretofore almost wholly managed within the Precincts of our Capital City or famous Marts, are now des­cended into Country-Towns and Vil­lages, so that it is become a matter of Publick Consideration.

There are but two (that I know of) who have designedly Treated on this Subject: Mr. Serjeant Stone, who was a Learned Lawyer and the grea­test Commissioner in his time, hath left us his Readings on one of the Sta­tutes against Bankrupts; which are indeed full of Moot-Cases, ingeni­ously contrived, but there are not [Page] many stated Resolutions; the Cases of Services, Tenures, Seisins, Ward­ships, and the like, are not practica­ble now; and besides, he hath ap­plied his Reading to one Statute on­ly, and that the first; whereas the defects of that Law hath been abun­dantly aided and supplied by subse­quent Statutes, so that He cannot be sufficiently directive in this Grand Concern: And Mr. Billinghurst, who, for so much as he hath attempted, is Acceptable; but we must say, he hath done little more than to improve the method to which the Statutes themselves naturally lead him; the Resolutions are but few, neither do they extend to thousands of Cases that daily happen in these weighty matters.

Having therefore had some loose Papers, relating to this Subject, brought to my hands, upon perusal of them, I found they might be use­ful as well for Lawyers as Merchants and other Traders: I considered we are not born meerly for our selves, we are sometimes, at least, obliged to [Page] render our selver serviceable to the welfare of the Publick Society where­of we are Members, and to do some­thing that may be useful for o­thers. I then (the whole being left to my disposal) made some Addi­tions and Substractions, as I thought convenient, and moulded them into some Frame and Order; the result whereof is this little Piece (for Volu­minousness I never affected) which I now present to you. Whereof I think it becomes me to give this short Account:

To address my self then in the first place to the Gentlemen of the Long Robe, I conceive it might be some advantage, not only to cite▪ (under Proper Titles) our Printed Law Cases, and in some places to correct them, (but that very sparing­ly, for it is expected we should read Reporters in their own Words) but to add some Cases not extant, which I have observed in the Course of my Profession. I have, in some measure, considered the Learning of Declarati­ons and Pleadings upon Actions [Page] brought by the Assignees of the Com­missioners, the usefulness whereof I need not stand to Illustrate. The Forms and Presidents (tho' I have not displayed all the Arcana's of the Commissioners Practice) will be suf­ficient to give such hints and helps to an ingenious inquisitive Mind, as thereby to enable him, upon occasion, to frame Instruments of the like na­ture. In which let me recommend the President of the Scire Facias upon a Judgment recovered by the Bankrupt against an Executrix, which I take to be the exactest in its kind, and which was found in the Manuscripts of Mr. Pynsent, a very Judicious Practiser and Prothonotary of the Common Pleas (now deceased.)

As for the Merchants and Trades­men, the advantage of a Treatise of this Nature will appear if we consi­der them as Creditors or Debtors, and into one of these two Ranks we may generally cast them. For, it is mo­rally impossible to think that a Mer­chant can make a solemn Protestati­on in this sort; I owe to no Body, [Page] and no Body owes to me. Affairs of this nature cannot admit of such even Ballances: If we consider the prospects and allurements of Advan­tage and Profit, the insinuations of Business, the Twistings and Links of Commerce; in short (I say) if we reflect on the Revolutions, Movements and Intreagues of Trading, we may then find reason to pronounce, that no Trading Merchant (while he con­tinues such) can say to his Shop▪ Book (which is as restless as that watry and unstable Element) hither­to shalt thou go and no further.

You who are not not only dipt, but drencht in Debt, may see here how to manage your Concerns with so much Prudence, as to avoid those dangerous Shelfs on which thousands of Families have been irrecoverably ruin'd. For I am very confident, ma­ny have committed, or suffered such Acts of Bankrupcy, which they ne­ver understood would bring them within the Compass of the Statutes, but have thought that it only consist­ed in Absconding or downright Run­ning.

[Page]You who are Creditors, may in this receive hints how to secure your Debts in time, and to be precautio­ned not to be too forward in any fraudulent Contrivances, when you are sensible your Debtor is a Bank­rupt, tho' no Commission be award­ed out against him: And also how, and in what time you are to be re­lieved by the Statutes, and whether you are such Creditors who are capa­ble of Relief.

It must be granted, and it's the subject of pity rather than scorn, that many good Men may, and do insensibly sink and decay in their E­states, either by losses at Sea or Land, living up to support a Credit, and shoar up a Reputation (no mean Mystery in this World) or by the fa­tal and hidden determinations of Pro­vidence, which will sometimes baffle human designs, and will teach us not to ascribe Success always to our own Industry: And therefore frequently presents Instances to confirm the truth of the Wise Mans Observation, The [Page] Battle is not always to the Strong, neither Bread to the Wise, nor yet Riches to Men of Ʋnderstanding.

A Bankrupt, by Fraud, I always hated, I mean one that breaks on pur­pose to raise a Fortune by the ruin of others; tho' my Charity and Rea­son will induce me to believe such are not very ordinary. To leave a dear Family to the taunts and scorns of inconsiderate and insulting Fools, to roll about the World ones self like an Outlaw or a Fugitive, certain­ly are not things of choice, they are in no wi [...]e amiable. If such Mon­sters are to be found, I conceive our Laws are no [...] fevere enough against them. But I regret the proceedings against Bankrupts by Accident, (if we must allow of that distinction) and am sorry they are involved in the same Penalties.

But I must digress no further. I have only to add, My design in this is for the Publick Good of my Countrymen: And upon that score I must rely upon the Readers pardon [Page] for my Mistakes: However, if he will be so inexorable as not to grant me a total discharge from my Errors, yet I hope my honest intentions may molli [...]ie him into some reasonable composition for them.

T. G.

A TABLE OF THE CASES.

A.
  • ABYN, a Turky Merchants Case,pag. 26
  • Allens Case in Chancery,p. 183
  • Andrews and Spicer,p. 133, 161
  • Audly and Halsey,p. 94, 118, 119, 123.
  • Aylmer and Gerard,p. 131
B.
  • [Page]Backwell and Littcott,p. 126
  • Backwells Case,p. 130
  • Baker and Edmonds,p. 139
  • Sir Anthony Batemans Casep. 16, 17, 31, 108, 109
  • Barnes and Cary against the Sheriffs of Bristol,p. 60, 77
  • Bayly and Bunning,p. 118, 121, 130, 168
  • Benson and Flower,p. 44, 120, 132
  • Bets and Mico,p. 130, 143, 169
  • Bingly and Warcupp,p. 124
  • Bolston and Ractliff,p. 126
  • Boylstones Case,p. 136
  • Bradford and Bludworth,p. 28, 41, 42, 110
  • Bradshawes Case,p. 130, 142
C.
  • Calchmans Case,p. 133
  • Cartwright and Ʋnderhill,p. 38
  • Churchman and Osborn,p. 44, 107
  • Clayton and Monks Case,p. 46, 122
  • Coply and Dockmanque,p. 143, 163
  • [Page] Crisp and Platt,p. 14, 37, 108, 112
  • Craven, &c. contra Knight in Chan­cery,p. 174
  • Cullamers Case,p. 48, 118
D.
  • Danby and Wellengton,p. 143
  • Day and Thomas.p. 144
  • Dean and Dr. Lake,p. 180
E.
  • Eclor and Jacobson,p. 134
  • Edwards Case,p. 69
F.
  • Fitzwilliams and Lewis,p. 137
  • Fuller and Lane in Chancery,p. 48, 171
G.
  • Gerard and Aylmore,p. 131
  • Gibson and Tompson,p. 17 18
  • [Page] Green and Morgan,p. 132, 142
  • Gray and Feilder,p. 146
  • Grove and Smith,p. 133
H.
  • Sir John Harrison and Sir Job Har­vey,p. 15, 16
  • Hecrost and Hall,p. 16
  • Haylor and Hall,p. 16, 174
  • Hanslop and Hales,p. 166
  • Hind the Bankers Case,p. 25
  • Holt and Scarscrog,p. 245
  • Benjamin Hintons Case,
J.
  • Jacobson and Eclor,p. 134
  • Jekells Case,p. 77
  • Jollifer and Horn,p. 38
  • Jonas and Boulton,
L.
  • Lidcot and Backwell,p. 196
  • Dr. Lake and Dean in Chancery.p. 180
M.
  • [Page]Morgan and Green,p. 132, 142
O.
  • Osborn and Bradshaw,p. 165
  • Osborn and Churchman,p. 44, 107
  • Overman and Wright in Chancery,p. 45
P.
  • Parker and Bleek,p. 112
  • Penrice and Wing,p. 77
  • Pickerings Case,p. 46
  • Powel versus Stust and Timewell,p. 137, 146
  • Prin and Beal,p. 133, 165
  • Puckridge and Brown,p. 143
R.
  • Rugles Case,p. 48
  • Radford and Bludworth,p. 28, 41, 42
  • Reeve and May,p. 170
S.
  • [Page]Scott and Bell,p. 107
  • Selby and Walker,p. 164
  • Smith and Mills,p. 118
  • Spencer and Vancure,p. 111
  • Stiff and Timewell,p. 146
  • Stoover and Hastings,p. 133
T.
  • Taylor and Hills,p. 25
  • Thomas and Day,p. 144, 173
  • Thursby and Platt,p. 144
  • Trigg and Newton,p. 14
  • Tuckee and Cosh,p. 106
V.
  • Vanacre and Spencer,p. 111
W.
  • Ward and O [...]fly,p. 125
  • Watson and Norbury,p. 167
  • [Page] Wellempton and Danby,p. 143
  • Widdows and Berman in Chanceryp. 174
  • Wood and Hays,p. 182
  • Sir John Woolstenholms Case,p. 17, 19, 20
Y.
  • Yardly and Knight,p. 133

A TABLE OF THE CHAPTERS.

  • CHAP. I.FOrms of the Affidavit: Bond to the Lord Chancellor: Petition and Commission; with some short Remarkes.
  • [Page]CHAP. II.What Trade or Profession a man must be of, and Profess: Or what kind of Trader he must be that brings him into the Statutes of Bank­rupts.
  • CHAP. III.What Acts a man must do, or suffer to be done, before he can be said to be a Bankrupt.
  • CHAP. IV.Rules for the Construction of the Sta­tutes, and when the Bankrupcy shall be said to commence,
  • CHAP. V. Of Creditors.Who are Crditors within the Statutes, and who are not: Of their Prefe­rence: [Page] Of their coming in, and within what time they are to come in, or their refusal: And of Con­tribution to the Charges: And the Form of an Authority to receive Con­tribution-Mony.
  • CHAP. VI.Of the Proceedings of the Commissio­ners: The Form of the Oath: Of the Stile of the Depositions: Of declaring him to be a Bankrupt: Inhibition: A Warrant for Witnes­ses: A Warrant to send one to the Goal, who refuseth to be sworn, or to answer: And of the proof of Debts.
  • CHAP. VII.The Commissioners Power in reference to the Bankrupt: Of Proclamati­ons, and the form of it: Of breaking Houses: And in refe­rence to the Bankrupts Wife: Of the Examination of the Bank­rupt [Page] and his Wife: Of the Examination of Witnesses, and other for the discovery of the Estat [...] and Debts of the Bankrupt: O [...] the Penalties of refusing to [...] sworn, to be Examined, or to Discover: Of Perjury; and the for feitures how to be applied, and [...] Interrogatories.
  • CHAP. VIII.Of the Disposition of the Bankrup [...] Estate, Freehold and Copyhold Of Redemption of Lands Mortg [...] ged: Of Trusts, Sales and Se [...] tlements of Lands: What shall [...] accounted Fraudulent; and whe [...] and in what Cases Purchasers a [...] safe; with many Late Cases an Resolutions thereupon.
  • [Page]CHAP. IX.Of the Disposal of the Personal E­state or Goods of the Bankrupt: How, and where the Goods of a Bankrupt liable to Execution, may be sold by the Commissioners, and where not: Of Trusts and Bonds ta­ken in the Bankrupts name, with several Cases and Resolutions.
  • CHAP. X.Of the Disposition and Assignment of the Bankrupts Debts; and what Assignment made by the Commissio­ners shall be good, and what not; and of Declarations.
  • CHAP. XI.Of Actions brought by Assignee of Commissioners for the recovery of Debts, or Goods of the Bankrupt: Of Declarations thereupon: Of Acti­ons [Page] brought by the Bankrupt him­self; and the Forms of Declarati­ons at large.
  • CHAP. XII.Of Pleadings in respect of the Sta­tutes of Bankrupcy by the Debtor, or by the Commissioners, to Actions brought against them; and what Pleas shall be good, and what not.
  • CHAP XIII.Of the Venue, Evidence and Trial.
  • CHAP. XIV.Of Distribution: Notice to Creditors: of a Dividend, and the Form; as also the Form of a Deed of Distri­bution.
  • [Page]CHAP. XV.Of Bankrupts: Where they are Part­ners and of Joint-stocks.
  • CHAP XVI.Of other things to be done, or the Consequentials after Examination, Discovery and Distribution: Of Bills of Conformity.
  • CHAP. XVII.Of Scandalous Words relating to a Mans Trade.

PRESIDENTS.

  • DEclaration by Assignees of th [...] Commissioners of Bankrupts gainst a Debtor. Sur Emisset.
  • Declaration by Assignees of the Commissioners upon a Bond made to t [...] Bankrupt.
  • Plea to an Indebitat’ Assumpsit, the it was assigned by the Commissioner of Bankrupcy.
  • Plea to a Bond for performance Covenants (or Articles) for payment of Rent: That the Plaint [...] was a Bankrupt, and that the Defendant paid the Mony to the A [...] signees of the Commissioners of Bankrupcy.
  • Scire Facias for the Creditors up [...] the Statute of Bankrupts, upon [Page] judgment recovered by the Bankrupt against the Executrix.
  • An Indenture of Assignment by the Com­missioners.
  • Another Form of an Assignment.
  • A Deed of Distribution.

The Courteous Reader is desired to Correct these few Errors that have passed the Press.

ERRATA.

FOlio 6. antepenult, add many have. f. 6. after line 25 put 28, 29, 30 lines. f. 31. Hench r. French. f. 32. add and Tompson Defendant. f. 18. add and French. f. 19. l. 1. add sole Merchant. f. 22. l. 14. adjusted, r. adjudged. f. 27. l. 7. 27, r. 7. f. 44. l. 26. add an. f. 52. l. 16. r. be discovered. f. 74. l. 7. Officers r. Offices. f. 78. l. 14. corrected r. convicted. f. 8. l. 5. after Sales add and. f. 100. l. 13. before Debts add the. f, 104. l. 18. after Feme add sole. f. 109. l. 1. r. whose use f. 119. l. 21. r. Fi. Fa. f. 120. l. 21. r. Fi. Fa. l. 23. r. Exempti­on f 133. l. 13. Suit r. same. f. 136. l. 13. one r. once. f. 142. l. 13. r. Remedy. f. 200. l. ult. r. disgraceth. f. 228. l. 21. form r. force. f. 195. l. 20. r. 2 Bulst. l. 22 r. 1 Brouhl. f. 196. l. 1. r. 2 Bulst. l. 5. Cr. Eliz. 21. r 843. f. 197. l. 11. 41. r. 40. l. 12. 40. r. 46.

[Page 1]THE LAW Against BANKRUPTS.

CHAP. I.

Forms of the Affidavit, Petition, and Commission; with some short Re­marks.

AS soon as you perceive your Debtor hath done or suffer­ed some Act, whereby he is become a Bankrupt within the Statutes of Bankrupts; in the first place the Creditors must make Affidavit before a Master in Chancery, Ordinary or Extraordinary, to this effect following:

Affidavit to be made before a Master in Chancery, before the Suing [...]ut a Com­mission of Bankrupt.

A. B. of, &c. maketh Oath, that R. B. of the City of L. Merchant, is truly and justly Indebted to this De­ponent (and others his Creditors) in the sum of 100 l. and upwards; and that he is become a Bankrupt within the true meaning of one or some of the Statutes made against Bankrupts, as this Depo­nent believeth.

Jurat. A. B.

Then there must be a Petition pre­sented to the Lord Chancellor, or Lord Keeper, in manner following:

The Form of a Petition to the Lord Chan­cellor, or Lord Keeper, to grant a Com­mission of Bankrupts.

In most humble manner shew unto your Lordship,

YOur daily Orators A. B. of, &c. and C. D. of, &c. and W. L. of, &c. as well for themselves, as all other the Cre­ditors of R. D. of the Parish of, &c. in, &c. Merchant: That whereas the said R. D. using and exercising the Trade of Mer­chandize, [Page 3] 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 Merchandize 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 Mony, a­mounting in the whole to the sum of, &c. and upwards: Of late, that is to say, about the Month of November last past, did become Bankrupt within the several Statutes lately made against Bankrupts, to the intent to defraud and hinder your said Orators, and all others his Credi­tors, of their just Debts and Duties to them due and owing, (that is to say) 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; Entituled, An Act for the better Relief of the Creditors, against such as shall become Bankrupts: As also within the Statute made in the Parliament▪ begun [Page 4] 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; Entituled, 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 to your Lord­ship shall seem meet; Authorizing them thereby, not only concerning the said Bankrupt, his Body, Lands, Tenements, Freehold 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 Premisses, 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 Ordinances and Provisions of the same Statutes.

And your Orators shall pray, &c.

[Page 5]Note, The Creditors must name SevenCommissioners, h [...]w m [...]n▪ (at the least) Commissioners (whereof Two must be Esquires, for the Quorum) of whom the Lord Chancellor, or Lord Keeper, strikes out Two. This is the usual way; but many times, in Matters of great weight, there are Nine or more Commissioners, and Three or more of the Quorum.

If the Petition (which is to set forth the Time when he became a Bankrupt) do shew that he was a Bankrupt 1st June 18 Jac. and the Commissioners find that he became a Bankrupt 1st November following, yet its well enough; for it sufficeth that he is a Bankrupt, and the Time is not material, so it be before the Date and suing forth the Commis­sion.

One sole Creditor shall not sue out aCommission sued out by one Creditor. Commission; for it ought to be at the Suit of the Creditors; by Mr. Stone. Q. But the daily Practise is the contrary, and so I perceive the Law to be; for it may so happen that the Creditor can­not have a satisfaction, but by a Com­mission: As in case the Bankrupt be Te­nant in Tail of Lands and Tenements, or a Copyholder, which Estates may be sold by the Commissioners; which by no other means can the Creditor have for the satisfaction of his Debt.

[Page 6]The Bond to be entred in to the Lord Chancellor, or Lord Keeper, upon suing out the Commission of Bank­rupt.

NOverint universi per psentes me I. A. de, &c. teneri & firmit [...]ligari prehonorabili B. &c. Domino Cancellario Anglie, solvend’ eid’ Do­mino Cancellario, out suo certo At­tormat Executoribꝰ, Administrat, vel Assignat suis: Ad quam quidem so­lu [...]onem bene & fidelit faciend’ obligo me Heredes, Executores, & Admini­stratores m [...]os firmitpsentes. Si­gillo mco sigillar dat, &c.

THe Condition of this Obligation is such, That if R. B. of the City o [...] L. Merchant, be a Bankrupt within all or any the Statutes lately made against Bankrupts, according as the above bound A. B. by his humble Petition, exhibited to the above­named Lord Chancellor of England hath alledged: Then this Obligation to be void, or else to stand in full force.

I shall add the Form of a Commission, tho' you have it out of the Office, pay­ing the Fees.

The Commission is in this manner:

WIlliam and Mary, by the Grace of God, King and Queen of Eng­land, Scotland, France and Ireland, Defen­ders of the Faith, &c. To our trusty and well-beloved A. B. of E. in Com’, &c. Esq; C. D. of, &c Esq; R. S. T. S. and L. W. Gent. Greeting. Whereas we are informed, that J. R. of K. in, &c. Mer­chant, using and exercising the Trade of Merchandize, by way of Bargaining, Exchanging, Bartering and Chevisance, seeking his Trade, and of living by buying and selling (such a day and year) did become Bankrupt within the several Statutes made against Bank­rupts, to the intent to defraud and hin­der A. B. of, &c. and W. K. of, &c. 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 aforesaid, the second day of April, in the thirteenth year of the Reign of our Dear Sister Elizabeth, late Queen of England, made and provided: As of the Statute made in the Parliament, begun and holden at Westminster aforesaid, the 19 day of March, in the first year of the Reign of the late King James the First, of England, France [Page 8] and Ireland, and of Scotland the 37th; Entituled, An Act for the better Relief of Creditors, against such as shall become Bankrupts. And also the Statute made in the Parliament, begun and holden at Westminster aforesaid, the nineteenth day of February, in the 21th year of the Reign of the said late King James the First, of England, France and Ireland, and of Scotland the 57th; Entituled, An Act for the further description of a Bankrupt, and Relief of Creditors against such as shall become Bankrupts. Upon Trusts 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 you, Four or Three of you, whereof you the said A. B. or C. D. to be One, according to the same Statutes, and every or any of them, not only con­cerning the said Bankrupt, his Body, Lands, Tenements, Freehold, 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 Premisses, 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 and things whatsoever, as [Page 9] 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. or C. D. to be One, to proceed to the Ac­complishment and Execution 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 selves at VVestminster the, &c.

If after Seizure, and before Distribu­tion,Death of Com­missioners. all the Commissioners but Two die, or if they of the Quorum die, they can­not proceed alone; but a New Com­mission must be awarded, and the New Commissioners may call the Old ones to an Account.

The words in the Statute 1 Jac. c. 15.Charges of the Commission. [For the Charges of the Commission,] are to be extended to all the Charges arising by the suing of it out, and in the Execution of it also. Hutton, fo. 38.

CHAP. II.

What Trade or Profession a man must be of, and profess: Or, what kind of Trader he must be, that brings him within the Statutes of Bank­rupts.

IN the next place I shall shew, how and when one may be said to be a Bankrupt; and what it is that makes a man become a Bankrupt.

And as to that, it is to be considered;

  • 1. What kind of Trade, Occupation, or Profession a man must be of, or what kind of Dealing he must follow, before he can be adjudged to be a a Bankrupt.
  • 2. What Acts one must do, or permit and suffer, which will make him a Bankrupt within these Statutes, or any of them.

1. What kind of Trade, Occupation, or Profession a man must be of; or what kind of dealing he must follow, before he can be adjudged to be a Bank­rupt.

Stat. 13 Eliz. c. 1. If any Merchant, or other person, using or exercising the Trade of Merchandize, by way of bargaining, [Page 11] exchange, re-change, bartry, chevisance, or otherwise, in gross or by retail; or seeking his or her Trade of Living by buying and selling, and being a Subject born of this Realm, or any of the Queens Dominions, or Denizen, shall depart the Realm; or begin to keep his or her House or Houses; or otherwise to absent him or her self, or take Sanctuary; or suffer him or her self wil­lingly to be Arrested for any Debt or other thing, not grown or due for Mony delivered, Wares sold, or any other just or lawful cause, or good consideration or purposes, will suffer him, or her self, &c.

Stat. 1 Jac. c. 15. That all and every such person and persons, using or that shall use the Trade of Merchandize by way of bar­gaining, &c. prout in the Stat. 13 Eliz. cap. 7.

Stat. 21 Jac. c. 19. That all and every person and persons using, or that shall use the Trade of Merchandize by way of bar­gaining, exchange, chevisance, or otherwise, in gross or by retail; or seeking his or her living by buying and selling; or that shall use the Trade or Profession of a Scrivener, Scrivener. receiving other mens Monies or Estates into his or their custody, shall be liable to be a Bankrupt.

Stat. 14 Car. 2. c. 24. Whereas divers Noblemen and Gentlemen, not bred up in Trade, have notwithstanding put great Stocks into the East-India and Guiney-Company,Stocks in Companies. it is declared, That no persons, [Page 12] Adventurers for putting in Mony or Mer­chandize into the said Companies; or for adventuring or managing the Fishing, called the Royal-Fishing-Trade, shall be reputed or taken to be a Merchant or Trader within any Statutes for Bankrupts, or be liable to the same: Provided that persons Trading or Trafficking in any other way or manner, than the said Companies or Fishing, shall be liable to the Commission of Bank­rupts.

Observe, That by the Proviso in the later end of the Statute of 21 Jac. c. 19. That that Act, and all other Acts hereto­fore made against Bankrupts, shall extend to Strangers born, as well Aliens as Deni­zens, Aliens as effectually as to the Natural born Subjects; both to make them subject to the Laws as Bankrupts, as also to make them capable of the benefit or contribution, as Creditors by those Laws.

Notes, Cases, and Resolutions upon the Clauses of the said Statutes, relating to the Trade, Profession, or Occupation of such an one as shall be accounted a Bankrupt; and what shall be said a buying and selling within the Statutes.

IT is not buying and selling1 Note. of Land, but of Personal things, that makes a man a Bankrupt, March Rep. 37.

[Page 13]2. Selling alone will not make a Bank­rupt, unless he also buy, 2 Keb. 487. Nor Buying alone.

3. One single Act, tho' it let a man into a general Dealing, will not make one a Bankrupt. Vid. infra.

4. He that is a Bankrupt must get his living by buying and selling, or the chiefest part thereof. Vid. infra. Except in special Cases.

5. It must be a general Trade by which his livelyhood is got, and not particular Employments. Vid. infra.

Such as live on their Manual LabourParticular Employment. only, as Husband-men, Labourers, bare Handycrafts-men, &c. are not Traders within the Statutes, Cro. Car. 31. But,

Such as buy Wares, and convert them into saleable Commodities, and so get their livelyhood by such buying and selling, may be within the Statutes. As,

A Shoe-maker, that buys Leather andShoe-maker. sells it in Shoes, may be a Bankrupt, Cro. Car. 31. Crump and Barnes Case.

So of an Iron-monger that buys Rod-IronIron-monger. or Bar-Iron, and causeth it to be work'd up into Wares.

So a Naylor, Lock-smith, &c. by theA Trading Smith. same Reason of a Shoe-maker.

A Clothier that buys the Wool, andClothier. hath it made up into Cloth, may be a Bankrupt; so if he work it into Cloth himself, by the reason of Crump's Case.

[Page 14]A Taylor that makes Garments onlyTaylor. and as Servant to his Customers, shal [...] not be a Bankrupt. But,

A Sales man, by the reason of Crump▪ Sales-man. Case, may.

A Carpenter in London hath been adjudgedCarpenter. a Bankrupt; but not quà [...] Working-Carpenter.

Mr. Stone's Opinion, p. 166. that [...] Shoe-maker, &c. is no Bankrupt, is no [...] Law.

An Inn-holder quà such, is not withi [...] Inn-holder. the Statutes, and may not be a Bankrupt by 3 Justices against Berkly: For th [...] he buy Provisions to be spent in h [...] House; yet he doth not properly sell i [...] but utters it at such Rates as he thin [...] reasonable Gains: And the Guests d [...] not contract or take it at a certain price but they may have it, or refuse it and if he take excessive Rates, he [...] Indictable: And in cases of Inn-keeper Provisions are not only respected, b [...] Furniture of Rooms, Attendants of Ser­vants, &c.

But if an Inn-keeper be a Grazier, heGrazier. may be a Bankrupt, Cro. Car. 548. Crisp and Platt. March Rep. 35, 36. mesme Case And likewise so lately Adjudged in the Kings-Bench, in the Case of Trigg vers Newton, an Inn-keeper at Blossoms-Inn i [...] London.

A Vintner may be a Bankrupt; or [...] Vintner. Brewer. Brewer.

[Page 15]A Farmer, who buyes in Cattle andFarmer. spends some, and sells others, is not a Bankrupt, Cro. Car. 458. March Rep. 35, 36. But,

A Grazier or Drover may be a Bank­rupt;Drover. and whether he graze his own Land or not, alters not the case. Where­fore I wonder that Mr. Stone, p. 165. saith, If he hireth Grounds, and feeds the Cattle, he shall be a Bankrupt; but not if he graze upon his own Freehold. And it hath been since Adjudged to the con­trary.

A Cow-keeper at Islington, was lately Adjudged a Bankrupt.

An Husbandman is not within theHusbandman. Statutes, unless he be a Drover also: Per Baron Denham 3 Car. at Wilts As­sizes.

Any Trading, tho' the Trade be ne­ver so Inferior in it self; yet if they get their living by buying and selling, and deal considerably in it, makes a Bank­rupt, with other acts of Bankrupcy.

One is not a Trader within these Sta­tutes,Leaving off Trade. who hath left his Trade, but sells his Goods lying upon his hands, for the Debts which he hath contracted after­wards; unless that the Debts were con­tracted during the Trade: But,

If such Persons Trade again, and soTrading again. become Indebted, he is a Bankrupt for this; but not for the Debts between. Sir John Harrison and Sir Job Harvey's [Page 16] Case, cited in Sir Anthony Bateman's Case, Siderfin, p. 411. So,

He shall become a Bankrupt for Debts due before he gave over Trading, and continued for new Security taken since he gave over his Trading, Stone Lect. 7.

Discontinuance of Merchandize is not an exemption from the Statute, when the Creditors have taken New Securities.

Therefore, its Resolved, it is not ne­cessary he continue his Trade by buying and selling, to the time that he becomes a Bankrupt; but it sufficeth that he hath used the Trade, and during that timeDebts owing when he was a Trader. that he became Indebted, and for that Debt he is now become a Bankrupt. As if a Merchant leave his Trade, and go into the Country for two years, and after he absents himself from his Cre­ditors, by reason of the Debts he owed when he was a Merchant, Mich. 20 Jac. B. R. Hicroft and Hall's Case. And the same was Agreed for Law in Palmer's Rep. 325. in Evidence to a Jury at Kings-Bench.

If one for a time deal in a Trade, and after he forsakes his Trade; but leaves his Stock in the hands of another, andPartner. he hath part of the Gain, and is partaker of the Loss: If such an one after desert and conceal himself, he is a Bankrupt within the Statute, Palmer's Rep. 325. in the Case of Hayler and Hale. Vid. infra.

[Page 17]Sir. A. B. had the 16th part in a Cole­ship,Cole-Marchant which Coleships are victualled and employed by the Owners. But it ap­peared when Sir A. B. purchased the said 16th part, the Ship was indebted to him (viz.) to Repairs, and it is their custom to repair them upon the Credit of their Bottom, and this Ship had not gained so much as to pay for her repairs. This makes not a Merchant Bankrupt, Si­derfin p. 411. Sir Anthony Batemans Case.

That Sir A. B. imported Goods in hisImportation of Goods. own name, is not sufficient, unless he doth issue out the Proceed so imported, as he did employ goods taken in Prize in Revictualling another Ship, which made one a Bankrupt, altho' he was a Gentleman.

A Joint Stock is not sufficient, unlessJoint stock. some disposition of it be actually proved as it is in Sir John Wooltenholm's Case, 14 Car. 2. c. 4. So tho' he be Partner of a Coleship, where the Fraight and Own­ership are not distinct, as in Ships Tra­ding to other parts, 2 Keble, 487.

Sir Tho. Littleton, Mr. Papillion, and Mr. Child by contract with King Charles 2. were to victual the Fleet at 8d per di­em a Head, who made an under contract with the Pursers of the Ships (two of which, viz. Mr. Gibson, Mr. Hench were Plaintiffs) to victual at 6d per diem, and gave a Note of 800 l. at 6d per diem; and before this Contract Sir Thomas was [Page 18] no Trader, as was agreed; and per Cu­riam, this Contract to Victual a Fleet is no more than to Table with a private man, which will never make a Trader within this Statute; which looks on ge­neralParticular Em­ployments. Trades by which livelihood is got­ten ordinarily, not on particular em­ployments; for so the King's Butler or Steward, or any other Officer might be a Trader.

2. Altho' Provisions made for the Fleet, be by the King's direction, but applied to other purposes than was contracted, yet this is no more than a particular Command to a man to buy Provisions for that purpose.

3. It was resolved, that if under dis­guise of such contract, Sir Thomas trade with other Merchants under-hand or se­cretly; that shall be a Trading within the Statute. But the selling off a Sur­plusageSelling off a Surplusage. is no more a Trading, than a Gentlemans selling off the Surplusage of Hay; and he must be a Buyer and Seller too, that is within the Acts. It's not sufficient to Buy alone, or Sell alone; and one single Act, tho' it l [...]t a man into a general dealing, will not make a Bank­rupt, [...]ewards▪ Far­mers of Customs no more than a Commission of Ex­cise, or a School-keeper that boards Scho­lars, or Stewards of the Inns of Courts, or Farmers of the Customs, Gibson vers. Tompson. p. 27. Car. 2. B. R.

[Page 19]A Feme Covert Merchant may be aFeme Covert-Merchant and her Husband▪ Bankrupt, and so shall her Husband be; it shall be accounted his folly to suffer his Wife to Trade as such, and the out­lawry of the Husband for the Wives debt shall make him a Bankrupt.

By a Special Provision in 14 Car. 2. c. 14. Noblemen and Gentlemen, not bred up in Trade, that have put in Stocks into the East-India and Guiney Companies. Companies, and are adventurers for put­ting in of Mony or Merchandise intoAdventurers▪ the said Companies, or for adventuring or managing the Fishing, called The Royal Fishing Trade, are not to be repu­ted Bankrupts. But persons trading or traficking in any other way or manner, shall be liable to the said Commissions of Bankrupts. In the Turky Company eve­ry man Trades on his own account and estate, and not like the Guiney Company or East-India Company.

Now before this Statute of 14 Car. 2. was made, one Sir John Woolstenholme wasA Gentleman▪ Trader. one of the Corporation of the East-India Company, and a Gentleman of 3000 l. per annum, and had a Stock in the Com­pany of his own, and sat in the Com­mittee of the said Company as a Mer­chant in the management of Trade, and did receive at several times the Proceed of his Stock upon returns of Ships, and became indebted to divers persons, and absconded himself. It was held, that [Page 20] tho' he did not get the greatest part of his Living by Buying and Selling, yet his Employment in the said Committee and Trade, was such a Buying and Sel­ling, as brought him within the Statutes of Banckrupts, and that the Statute was to be taken largely for the Creditor against the Bankrupt, and his taking out of his Stock and Goods, and disposing them was a selling within the Stat. of 21 Jac. Hughes grand Abridgment. Sir John Woolstenholms Case. But this Verdict and Judgment against Sir John was re­versed by the said Stat. 14 Car. 2. c. 4. but not to avoid any sale of his Lands made by the Commissioners.

If a man trade in the East-India Com­pany,East India. Africa. and in the African Company, or Guiny Company and abscond, &c. he is not within the proviso of this Statute, but shall be a Bankrupt. A Virginia Mer­chantVirginia. is within the Statute, and so o­thers.

CHAP. III.

What Acts a Man must do, or suffer to be done, before he can be said to be a Bankrupt.

13 Eliz. c. 7. IF any such Trader as a­foresaid, shall depart the Realm, or begin to keep his or her House or Houses, or otherwise to absent him or her self, or take Sanctuary, or suffer him or her self willingly to be Arrested for any Debt or other thing not grown due for Mony delivered, Wares sold, or any other Just or Lawful Cause, or good Consi­deration, or Purposes, or will suffer him or her self to be outlaw'd, or yield him or her self to Prison, or depart from his or her Dwelling-house or Houses, to the intent or purpose to defraud or hinder any of his or her Creditors, being also a Subject born as aforesaid, of the Just Debt or Duty of such Creditor or Creditors, shall be reputed, deem­ed and taken for a Bankrupt.

1 Jac. c. 15.—All and every such Traders (as aforesaid) that shall depart the Realm, or begin to keep his or her House or Houses, &c. (us (que)) or yield him or her self to Prison, or willingly and fraudulently shall procure him or her self to be Arrested, or his or her Goods, Money or Chattels to be At­tach'd, or Sequestred, or depart from his or [Page 22] her Dwelling-house, or make, or cause to be made any fraudulent Grant or Conveyance, of his, her or their Lands or Tenements, Goods or Chattels, to the intent, or whereby his, her or their Creditors, being Subjects born as aforesaid, shall or may be defeated or delayed for the recovery of their just and true Debts; or being Arrested for Debt, shall after his or her Arrest, lie in Prison six months or more upon that Arrest, or upon any other Arrest, or Detention in Prison for Debt, and lie in Prison six months upon such other Arrest or Detention, shall be accompted and adjusted a Bankrupt, to all intents and purposes.

21 Jac. c. 19. For the further descri­ption of a Bankrupt.— That all, and every such Trader (as aforesaid) who shall either by himself or others by his procure­ment, obtain any Protection or Protections, other than such person or persons as shall be Lawfully protected by the priviledge of Par­liament, or shall prefer or exhibit unto his Majesty, his Heirs or Successors, or unto any of the King's Courts, any Petition or Petiti­ons, Bill or Bills against his or her Creditor or Creditors, or any of them, thereby desiring or endeavouring to compel or enforce them, or any of them, to accept less than their just and principal Debts, or to procure time or longer days of payment, than was given at the time of their Original Contracts; or being indebted unto any Person or Persons, in the sum of One Hundred Pounds or more, [Page 23] shall not pay or otherwise compound for the same within six months next after the same shall grow due, and the Debtor be Arrested for the same, or within six months after an Original Writ sued out to recover the said Debt, and notice thereof given unto him, or left in writing at his or their Dwelling­house, or last place of abode; or being Ar­rested for Debt, shall after his or her Ar­rest lie in Prison two months or more upon that or any other Arrest or Detention in Pri­son for Debt; or being Arrested for the sum of One Hundred Pound or more of just Debt or Debts, shall at any time after such Arrest escape out of Prison, or procure his enlargement by putting in Common or Hired Bayl shall be adjudged a Bankrupt. And in the said cases of Arrest, or lying in Pri­son for such Debt or Debts, or getting out by Common or Hired Bayl, from the time of his or her said first Arrest.

This Description consists of these several parts.

1. ABsconding or withdrawing him­himself, and that is Four Ways.

1. By departing the Realm. Mr. Stone in his Lecture, puts this Case. If a manDeparting the Realm. depart the Realm, and long time after his departure becomes non solvent, his absenting himself in such a Case brings him within the Statute of Bankrupts, p. [Page 24] 133. It seems otherwise, For suppose a Wealthy Merchant goes beyond Sea with a good Cargoe, and states his Ac­counts with his Creditors, who know of his Voyage, and are pleased therewith, and he sends over several effects to them, and they trust him in the way of Mer­chant-factor; and after five or seven years space, he by Losses becomes non­solvent, and abides beyond Sea; I con­ceive this is not within the Statute. For the Statute of 17 Eliz. c. 7. saith, That this withdrawing or absenting, &c. must be on purpose to defraud his Cre­ditors; and this can never be construed so; and we must imagin after his non­solvency, he must stay to get up his Eects.

2. Departing from their Dwelling­houses.Departure from his House. It need not be a total departure; for as it is rightly put, If one that hath an House, and yet absents for fear of Arrest, for a time, and then returns, yet he is a Bankrupt. Suppose a man hath no Dwelling-house, but sojourns some­time at one place, and sometime at ano­ther, yet if he appear not at his usual times or places of Trade as formerly, nor can be [...]ound as formerly, this is within the words of 13 Eliz. c. 7. or otherwise absent himself. So a Lodger in a Chamber. Yet Query: For if he sometimes absent himself, and at otherDenial to be at home. times when he thinks himself safe from Arrests, appears publickly, as upon the [Page 25] open Exchange, this seems to be a pur­ging of absenting or withdrawing him­self before, as it was held in the Case of Hind the Banker, who was sometimes de­nied at his House, tho' within; yet af­terwards appearing upon the open Ex­change, 'twas held in that Case, that this appearing publickly purged such his de­nial or absence.

3. Keeping their Houses. 20 Jac. B. R. Taylor and Hills Case. It was resolved,Keeping his House. That the keeping within his House, unless to defraud and delay Creditors, makes him not a Bankrupt. But if he conceal him­self for Debt, for which he is sued, and to delay and defraud his Creditors, tho' but for an hour, this makes him a Bank­rupt. Palmers Rep. 325. Haylor and Hall. Yet it is adjudged, Croke, Eliz. Fo. 13.—If a Trader, on notice of Process issued forth against him, keeps in to se­cure himself from the Arrest, and after goeth forth again; and then upon like notice keeps his House, and then goeth forth again, this brings him not within the Statutes; because he useth to go at large, and he may be met with one time or other. But Quere of this Resolution. For if this be Law, then I do not un­derstand the words in 1 Jac. c. 15. or begin to keep his or her House: And also certainly this is a keeping in to delay and hinder Creditors, 17 Eliz. c. 7. If the keeping in be to defraud or delay [Page 26] the payment, he is a Bankrupt: And Serjeant Stone faith well, Fo. 10. If a Trader absents himself for fear of being Arrested by a Writ de Excommunicato Cap. Or if a Decree in Chancery be made against him to execute a Conveyance, and he keeps in, or withdraws himself for fear of being Attached for not perform­ing the Decree; such withdrawing doth not make him a Bankrupt. Aliter, Per­haps if such Decree had been for pay­ment of Mony, as it was held in the Case of one Albyn, a Turky Merchant. If a Church warden (Trader) keeps the Church; that is either a keeping his House, or taking Sanctuary. So if a Miller keep in his Mill, that is a keeping his House.

4. Taking Sanctuary. These were priviledged places formerly, but now the Kings Officers may go into any place. If a Merchant abscond, and list himself a Dragooner in the Kings Service, or buy a Captains place; yet a Commissi­on may go out against him, this is no protection within the the Statute. If a Trader be prest into the King's Service, I conceive it otherwise.

[Page 27]II. The next part of the description is, about the Bankrupts being Arrested and Imprisoned: Which is either

Voluntarie & permissive, and fraudulent, Or, Forced, and so continuing in Prison.

1. Voluntary and permissive, 13 Eliz.Feigned Acti­ons. c. 27. If any such Trader shall suffer him or her self willingly to be Arrested for any Debt, or other thing not grown, or due for Monies delivered, Wares sold, or any other just or lawful Cause, 1 Jac. 15. Or shall willingly or fraudulently procure him or her self to be Arrested, 13 Eliz. c. 7. 1 Jac. c. 15. If any such Trader shall yield him or her self to Prison; this is to be understood of voluntary and feigned Actions; as run­ning into the Kings Bench or Fleet.

Or shall suffer him or her self to beOutlaw [...]. outlawed. 13 Eliz. c. 7. 1 Jac. c. 15. One Outlaw'd in Ireland, is not thereby a Bankrupt here; for that the Record is not pleadable here, Stone 172. Now the Reason of this Clause is, because by the Outlawry the King is intitled to the Goods, and so seems to be a fraud to the Creditors, which the Law abhors: But if the Debtor reverse the Outlawry, be­fore the Commission of Bankrupts sued out, it seems otherwise, as Mr. Billinghurst conjectures. If it be Reversed for want [Page 28] of Proclamations, all done in the mean time by the Commissioners is void.

If the Jury or Special Verdict, find a Bankrupt Outlaw'd, they must find he was outlawed in Fraudem Creditorum, and to that intent, 1 Keb. 11. Bradford's Case.

2. Forced Arrest or Imprisonment, and there the description is this: 1 Jac. c. 15. If such a Trader (as aforesaid) be­ing Arrested for Debt, shall after her or his Arrest lie in Prison six Months or more upon that Arrest, or upon any other Arrest, or De­tention in Prison for Debt, and lie in Pri­son six Months upon such Arrest or Deten­tion, shall be judged a Bankrupt. 21 Jac. c. 19. If any such Trader (as aforesaid) being indebted unto any Person or Persons in the sum of 100 l. or more, shall not pay or otherwise compound for the same within six Months next after the same shall grow due, and the Debtor be arrested for the same; or being Arrested for Debt, shall af­ter his or her Arrest lie in Prison two Months or more upon that or any other Arrest or De­tention in Prison for Debt; or being Arrest­ed for the Sum of 100 l. or more of just Debt or Debts, shall at any time after such Arrest escape out of Prison, or procure his Enlargemement by putting in Common or Hired Bail, shall be adjudged a Bankrupt; and in the said Cases of Arrest, or lying in Prison for such Debt or Debts, or getting out by Common or Hired Bayl from the time of his, or her said first Arrest.

[Page 29]Observe this difference,

If such Trader owe 100 l. and up­wards, and doth not pay or compound for the same, within six Months next af­ter the same shall grow due, and the Debtor shall be Arrested for the same, he is a Bankrupt, per 21 Jac. 19. But a Clause comes after, And being Ar­rested for Debt, shall lie in Prison two Months and more; which includes as well under as above an 100 l. So that if a Statute-trader owes me 100 l. and doth not pay it or compound for it within six Months after its due, and he be Ar­rested for it, this makes him a Bankrupt; and if he owe me 20 l. and shall be Ar­rested for it, and lie in Prison two Months, this makes him a Bankrupt. Durus Sermo. The Act saith, if he do not compound; suppose his Creditors will not, then he must of necessity lie in Pri­son; (upon any other Arrest or Detention for Debt.) I conceive the meaning of these words are, for Debt originally, and not Debt by reason of a Fine imposed, &c. For the Statute hath respect to Creditors, either by way of Contract, Exchanging, Buying, &c. and not Fines or Amercia­ments, &c. which no way respect Trade. (or shall lie in Prison after his or her Arrest two Months or more, on that or any other Arrest, or Detention in Prison for Debt) on which I will put this Case. One owes 100 l. and is Arrested and Im­prisoned, [Page 30] and in a Fortnights time paysLying in Pri­son. it; and during that Fortnight another Action of 100 l. is entred against him, and he pays that in a Fortnights time after; and so another Fortnight he pays a third Action off. Quere if this be with­in the Statute lying two Months or more on that or any other Arrest. I conceive not. For by that payment he is dischar­ged from that Debt, and so not in Pri­son on that account.

But the Case which Mr. Billinghurst puts. Suppose (saith he, p.—) a man be Arrested upon a Bond before the day of payment, as by the Custom of London he may, and lie in Prison two Months, &c. The Quere is, whether this be such an Arrest for Debt as is within the Sta­tute. It seems doubtful. For tho' it be debitum in praesenti, and so a release of all Debts shall extend to it; yet it is not properly a Debt within the words or in­tent of the Statute, for that must be such a Debt for which a Cause of Action is given; and there can be no cause of Action properly, till the forfeiture, for the Obligation is guided by the Conditi­on; and the Custom of London will not help it: For the Custom is not, that he shall be Arrested for the Payment of the Mony, but to find better Sureties. And the Statute only intends Detention in Prison for a just Debt really due. But I submit my reason to the Judicious Rea­der.

[Page 31]Mr. Stone puts a Question. If a man remaining in Prison six Months at the Suit of the King, makes him a Bankrupt? It may be Answered, if it be for a Debt, it doth; if on a Criminal Matter it doth not.

The next part of the Description is, 21 Jac. c. 19.

If such a Trader being indebted unto any person or persons, in the Sum of One Hundred Pounds or more, and shall not pay or otherwise compound for the same within six Months next after the same shall grow due, and the Debtor be Arrested for the same, or within six After an Origi­nal Writ sued out. Months next after an Original Writ sued out to recover the said Debt, and notice thereof be given unto him, or left in wri­ting at his or their Dwelling-House, or last place of abode. This is plain, and needs no explanation. It was resolved in the Court of Kings Bench, on a Tryal a­gainst Sir Anthony Bateman, Term. Mich. 1671. That one may become a Bankrupt, by reason of a Suit in the Exchequer, altho' the Statute speaks only of Origi­nal Writs; for the Statutes shall have a beneficial construction. Per Hales.

The next is per Stat. 21 Jac. c. 19.

If such Trader (as aforesaid) being Ar­rested Escape. for the Sum of 100 l. or more of just Debt, shall at any time after such Arrest Common Bayl. escape out of Prison, or procure his Enlarge­ment [Page 32] by Common or Hired Bail, he shall be adjudged a Bankrupt; and in the said Cases of Arrest, or lying in Prison for such Debt or Debts, or getting out by Common or Hired Bail, he shall be adjudged a Bankrupt from the time of his first Arrest.

Suppose one so Arrested lies in Prisons three Terms, and no Declaration comes in against him, and he by course of Law is let out at Common-Bayl, Quere, if he be within the Statute: for that is a Legal Course; and the word (procure) in the Statute is taken in malam partem.

The next is, per 21 Jac.

If such Trader shall by himself, or others Protections. by his procurement, obtain any Protection or Protections, other than such person or per­sons as shall be lawfully protected by the pri­viledge of Parliament, shall be adjudged a Bankrupt.

This is plain, All Protections are with­in this Statute, except Parliament Pro­tections duly obtained.

The next is,

Or if such Trader shall prefer or exhibit Petition to com­pound or pro­cure time. unto his Majesty, his Heirs and Successors, or unto any of the Kings Courts, any Petiti­on or Petitions, Bill or Bills against his or her Creditor or Creditors, or any of them; thereby desiring or endeavouring to compel or enforce them, or any of them to accept less than their just and principal Debts; or to [Page 33] procure time or longer days of payment, than was given at the time of their Original Contracts, shall be adjudged a Bankrupt, Statute 21 Jac. c. 19.

But if the Debtor call his Creditors to­gether, and they grant him License for longer time, this Act makes him not a Bankrupt; this is no fraud, nor intenti­on to defraud.

The last part of the description is about Frauds; and that is in two Paragraphs.

1 Per Stat. 1 Jac. 15. If such Trader Fraud as to Goods. (as aforesaid) shall willingly or fraudulently procure his or her Goods, Mony or Chattels to be Attached or Sequestred, shall be adjudg­ed a Bankrupt. But then note, That this must be of the Parties immediate procu­ring, and not by his meer Default or Latchess. For the words of the Statute are willingly and fraudulently; therefore Mr. Stone, p. 172. is right in this Case. A Merchant, &c. hath an Impropriate Rectory; the Choire is not repaired, the Tythes are sequestred; it is no Sequestra­tion within this Statute; for tho' this is his default in not repairing the Church, yet it is not of his immediate procuring. So in Cases of other Attachments out of any Court.

[Page 34]2. Per Stat. 1 Jac. 15. If any such Tra­der Lands or Goods. shall make, or cause to be made any fraudulent Grant or Conveyance of his, her or their Lands or Tenements, Goods or Chat­tels, to the intent, or whereby his, her or their Creditors, being Subjects born (but Per 21 Jac. it extends to all Strangers) shall or may be defeated or delayed for the reco­very of their just and true Debts, shall be adjudged a Bankrupt.

But for the further explication of this last Paragraph about fraudulent Sales and Conveyances, I shall shew

What Sales and Conveyances, made by the Bankrupt, shall be said to be fraudulent within this Statute, and what not; I mean as to make him a Bankrupt: for as for what Con­veyances shall be adjudged fraudu­lent in this Statute in reference to Purchasers, I shall consider after­wards.

And they may be considered two ways.

  • 1. Either such as are made long before he becomes a Bankrupt. Or,
  • 2. Such as are made some short time before; for what is done after the time of Bankrupcy is totally void.

But first I shall observe any one single Act of these descriptions is sufficient to [Page 35] make such Trader (as aforesaid) a Bankrupt. And that (as by the Pream­ble of the several Statutes against Bank­rupts it appears) the main intent of the Statutes is to relieve Creditors against Frauds and Deceits; tho' in some of the forementioned descriptions a delaying of Creditors is provided against, as the ly­ing in Prison six Months, or two Months, or not paying or compounding, per 21 Jac. &c. yet Fraud and Cheat lies, or should lie at the bottom of all; and I understand not the distinction of a Bank­rupt by Fraud, and a Bankrupt by Ac­cident, which I find in some of our Books, as the Laws have been expounded.

Any Fraudulent Conveyance within the Stat. 13 Eliz. & 25 Eliz. is within this Clause. But I shall not stand upon the explication of those two Statutes, it being a distinct Head from my present purpose; but shall come to set down some Cases, wherein Conveyances and Sales, made by the Bankrupt, have been adjudged Fraudulent, and which make him such.

If a Trader, finding himself sink in his Estate, and doth make a Conveyance of all his Lands and Goods to Trustees for the payment of his real Debts, and then absents; yet this Conveyance, tho' it may be truly and honestly made [Page 36] and intended, shall not excuse him; for his very absconding makes him a Bank­rupt: But if he abscond not, but declares his intention to pay his Debts, and the Trustees act accordingly, and pay as far as it will go proportionably, this Con­veyance, without other act shall not make him a Bankrupt; for here is no fraud.

Of Settlements voluntary.

R. B 9 Jac. Purchased Copyhold-Lands to him and his Son for their Lives, the Remainder to the Wife in Fee, 11 Jac. he became an Inholder; and about twelve years after, a Commission of Bank­rupcy is awarded against him, and the Commissioners sell the Copyhold-Land. R. B. dies, his Son enters and made a Lease to the Plaintiff, the Defendant en­tered upon him, and he brought Ejectione Firmae.

1. Per Cur. An Inholder is not a Bank­rupt. 2. In this Settlement there does not appear to be fraud apparent, and none being found, the Plaintiff had Judg­ment.

If a man make such a voluntary Set­tlement, and be indebted at that time, he shall be an Offender within this Sta­tute of 13 Eliz. The words in the last Proviso of that Statute are, Provided al­ways, that this Act shall not extend to any [Page 37] Lands, &c. Free or Copyhold, which shall be hereafter assured by any Bankrupt before he became a Bankrupt: So always that such Assurance be made bonà fide, and not to the use of the Bankrupt himself, or his Heirs; and that the Parties to whose use such As­surance shall be made, be not at, or before the making such Assurance, privy or consent­ing to the fraudulent purpose of any such Bankrupt to deceive his Creditors. But if he be not indebted at the time, if he purchase for another, and give unto ano­ther; if no fraud be found, it is not within the Statutes; or else Lands pur­chased forty years before might be de­feated, March. Rep. 34. Crisp. & Platt. this Case is well reported by Croke Car. 548, 549, 550. this Land was given by the Father (six years before he became a Debtor) to his Son, and no fraud found (being on a special Verdict) altho' there be circumstances of a fraud by the sole taking the Profits, untill he became a Bankrupt.

It is reported in Justice Hutton, That Every Deed made to defraud other Cre­ditors (but those to whom it is made) is not sufficient to make one a Bank­rupt. But if he make any Deed after he begins to be a Bankrupt, that shall not bind, per Stat. 1 Jac. which makes him a Bankrupt, that makes a fraudulent Deed: It must not be made long before he becomes a Bankrupt, Hutton. 42, [Page 38] 43. 1 Croke 13. March. 34. The Case was,

A Merchant had made a fraudulent gift of his Goods to the Defendant, but afterwards he went to Church and Ex­change, and did Trade and Com­merce, yet it was contained in the In­denture of the Commissioners to the Plaintiff, that he had made this fraudu­lent Deed, and that he had traded till a day after, at which day he absented him­self, and the Defendant had Judgment in Trover upon this Verdict, Causa qua supra. The Statue 1 Jac. that makes him a Bankrupt that makes such a Deed of Fraud, must not be as this Case is (viz.) so long before he becomes a Bankrupt, Hutton 42. Cartright & Underhill. But I conceive the Law is contrary to this resolution, and the case is misrepor­ed.

Of fraudulent Deeds and Settlements, in reference to Purchases, vide in­fra.
Of a mans becoming twice a Bankrupt.

Note. In the Case of Jollyser & Horn, Hill. 1657. in Com. B. The Commission was sued out within five years after he became a Bankrupt, and it was confest he was a Bankrupt in 1641. but it was said he became a Bankrupt again in 1649. [Page 39] And Hales puts this difference, that if one become a Bankrupt by a transient Act, as suit, &c. he may again become a Bankrupt; but if by a Continued Act, as Imprisonment, withdrawing himself, &c. he may not become a Bankrupt a­gain; so with this difference you may understand how it is said, once a Bank­rupt and always a Bankrupt.

CHAP. IV.

Rules for the Constructions of the Sta­tutes, and when the Bankrupcy shall be said to Commence.

THE Statutes having made a full description of the Bank­rupt; do then order how, and in what manner the Commissioners shall act. Before we fall directly upon that, I shall name two or three things out of these Statutes which are necessary and useful to be known. As,

Note 1. Per Stat. 21 Jac. c. 19. These Statutes of Bankrupcy are favourably to be construed for the Creditors, being made for the suppression of Fraud. Vide this explained in many Cases hereafter; [Page 40] and yet this should not be too far ex­tended. For the Statutes are highly pe­nal, and my Lord Bacon's Remark is good, It is an hard case to torture Laws, that they may torture Men.

Note 2. By Stat. 13 Eliz. He that is aAlien. Bankrupt must be a Subject born in the King's Dominions or Denizen.

One is born in the Isle of Man. Mr. Stone seems, that he cannot be a Bank­rupt, because it hath been adjudged that it is not parcel of the Realm. But with­out dispute it is within the Kings Domi­nions; and the King grants it to a Sub­ject, and by the precedent Rule the Sta­tute must be construed favourably for Creditors.

A Denizen of Ireland may be a Bank­rupt within the intent of the Statute.

One born in a Ship on the Coast of Flanders, may be said to be born in the Kings Dominions.

If the Husband be an Alien, and the Wife a Subject; or the Wife an Alien, and the Husband a Subject; by Mr. Stone it's all one as to Goods, they are both within the Statute, but the Lands are the Kings. Yet I cannot conceive, that if an Alien marry a Subject Woman, of a great Fortune, that he can be within the Statute, for he is no Subject nor De­nizen; and in such case I never heard of a naturalization by an Apron-string.

[Page 41]But by the Proviso in 21 Jac. c. 19.Alien▪ Denizen. That Act, and all other Acts made against Bankrupts shall extend to Aliens, and they shall be subject to the Laws as Bankrupts, and capable of the benefit as Creditors.

Note 3. When the Commission is to be sued out, and the effect of it; by the Statute 21 Jac. It is provided, that no Purchaser, for good and valuable consi­deration, shall be impeached by vertue of any of the Statutes of Bankrupts, un­less the Commission to prove him or her a Bankrupt, he sued forth against such Bankrupt, within five years after he or she shall become a Bankrupt. In o­ther Cases I find no time limited for the taking out the Commission; tho' its with­out doubt the sooner the better for the Creditors. Vide postea Tit. Settlement, Pur­chasers; and the Proviso, that the Commis­sion must be sued within five years after some time when he became a Bankrupt, 1 Keb. 12. Bradford & Bludworth.

Note 4. From what time the Bank­rupcy shall commence, per Stat. 21 Jac. c. 19. If any such Trader (as aforesaid) being Arrested for one hundred pounds, or more, of just Debt or Debts, shall after such Arrest escape out of Prison, or procure his Enlargement by Common or Hired Bail; he shall be adjudged a Bankrupt from the time of his first Arrest. Also by the said Sta­tute,

[Page 42] If such Trader, being indebted unto any person or persons in the sum of 100 l. or more, shall not pay, or otherwise compound for the same within six Months next after the same shall grow due, and the Debtor be arrested for the same, he shall be ad­judged a Bankrupt from the time of his said first Arrest. For the Statute saith in the said Cases of Arrest, or lying in Prison.

But the Statute doth not mention in the Case of Escape. Yet I conceive it is within the intention, the escaping being a more notorious offence than the o­thers.

Per Stat. 21 Jac. A man is only a Bankrupt by relation from the time of his Arrest; when he makes an escape, or comes out upon Common Bail.

A Merchant is imprisoned, and after becomes a Debtor to A, and then the six Months pass, A is relievable as a Credi­tor, for he is not a Bankrupt by relation, per Mr. Stone, p. 182.

How a Bankrupt is to be accounted from the first Act of Bankrupcy. Vide infra Cap. 8. Radford & Bludworth's case & Spencer & Vanacres, case.

CHAP. V.

Of Creditors. Who are Creditors within the Statute, and who are not. Of their Prefe­rence. Of their coming in, and within what time they are to come in, or their refusal; and of Contribution to the Charges. And the Form of an Authority to receive Contribution Mony.

Who are Creditors within the Statute, and who not.

A Merchant enters into a StatuteConisee. or Recognisance; the Conisee is a Creditor, and must come in and contribute, or else he shall have no relief.

An Executor becomes a Bankrupt, aLegatee. Legatee shall be relieved as a Creditor.

Mortgagee is not a Creditor withinMortgagee▪ the Statute, and need not come in▪ for he is provided for by the Statute. So a a Merchant pledgeth Goods, and be­comes a Bankrupt, the party need not come in.

As well Aliens as Denizens may comeAliens. in as Creditors, per Stat. 21 Jac. c. 19.

[Page 44]A Surety may come in as Creditor.Sureties. O. & B. are Sureties for J. S. for the pay­ment of Mony; and had Counterbonds from J. S. to save them harmless: The Mony was not paid at the day. O. and B. the Sureties pay it. J. S. after be­comes a Bankrupt, Per Curiam. O. & B. are Creditors within the Statutes, Croke, Jac. 127. Osborn & Churchman.

One hath a Debt not yet due, yet heDebt not due. shall be relieved with rateable respect of abatement for the time.

Mr. Stone saith, One that recovers da­magesRecoverer of Damages. in Waste or Trespass, shall not be relieved as a Creditor; Quaere, if that be Law? For in Benson & Flowers Case. Jones Rep. fo. 215. A man recovered Damages in an Action on the Case for Words, and became a Bankrupt, after Judgment, when it is reduced to a cer­tainty, it may be assigned. By the same reason, if the Plaintiff recover Damages against the Defendant, and hath Judg­ment, and the Defendant becomes a Bankrupt, the Plaintiff is a Creditor: It is a Debt due to him, and Action of Debt lies upon the Judgment. Quaere.

The Plaintiff that hath the Defen­dantsHe that hath the Defendants Body in Execu­tion. Body in Execution, shall not come in to be relieved. But if he have his Body in Execution on a Statute Mer­chant, aliter, per Mr. Stone. Quaere.

A. is Bail for B. either to bring his Bo­dy,Bail. or to pay the Condemnation-mony. [Page 45] B. becomes a Bankrupt, and absents, A. pays the Mony, he may come in as Cre­ditor.

If one trust a Bankrupt, after he be­comesTrusting a Bankrupt. a Bankrupt, he shall not be relie­vable as a Creditor.

Vide infra, The Case of Craven and Knight in Chancery.

A Statute extended upon a Bankrupts Lands, before the Liberate filed, Lord Chancelor ordered to take like composi­tion with other Creditors. Overman a­gainst Wright, Hill. 17 Jac. li. B. fo. 807.

Per Stat. 21 Jac. It is enacted, That Judgmentees, Conusees and Attachers by Foreign At­tachment to come in as Creditors for their share. all, and every Creditor and Creditors, ha­ving security for his, or their Debts, by Judgment, Statute, Recognisance, Specialty with Penalty, or without, 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 a Bankrupt, shall not be relieved upon any such Judgment, Statute, Recognisance, &c. for any more than a rateable part of their just and due Debts with the other Creditors of the said Bank­rupt, without respect to any such penalty, or [Page 46] greater sum contained in any such Judg­ment, Statute, Recognisance, &c. Of Fo­reign Attachment, Vide infra.

Of Preference.

THE Bankrupt cannot prefer one Creditor before another, 2 Rep. 23.

The King shall be preferred before aThe King. private person by the Stat. 21 Jac. But one part shall be allotted to him by the Commissioners, according to the pro­portion that other Creditors have. Sir Simon Nevels Case, Hill. 3. Car. 1. & Pasch. 1650. Pickerings Case.

It was moved in Monck and Claytons Case, 3 Keb. 68. & p. 14. That Mony of the Plaintiffs being a Bankrupt, and an immediate Debtor to the King by re­turns of Monys from the Commissioners of Excise, might not be delivered out of Court, to the Assignee of the Com­missioners of Bankrupts, Sed non allocatur. But the Mony was ruled to be delivered to the Assignee, and that the King may by Scire Fac. recover it against them.

As to the Case of the King, when the King hath Title at Common Law, as by Outlawry, &c. and the Subject Title by Act of Parliament, as in this Case of the Creditors, which shall be preferred, Vide infra, sub Titulo Assignment.

Of Creditors coming in, and of Con­tribution.

IT is Enacted, ThatPer Stat. 1 Jac. c. 17.it shall be Lawful for any of the Creditors of the said Bank­rupt within four Months after any such Commission 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 join with the other Creditors, that shall sue forth any such Commission for satisfaction and payment of his, her or their Debts, to him or them owing, without any Hindrance, Let or Disturbance of any of the same Commissioners, or of any of the other Creditors, or of any such Bankrupts; the same Creditors so coming in to contribute to the Charges of the said Commission; and that if the said Creditors come not in within four Months, then the Commissioners to have power to distribute.

If certain Creditors sue a Commission, and others within four Months or more being Creditors, come before distributi­on, and will join in the charge of the Commission, and all that belongs to it, and tender their parts, they shall not be refused, but have their equal parts as Creditors. But if any Distribution be made of any part of the Estate, no Cre­ditors are to be admitted after, that come [Page 48] not in before, Hobert 287. Hutton 37. Rugles Case. So that they may come in at any time before distribution.

A Merchants Factor refuseth to comeRefusal. in as a Creditor, but claims Goods given to him by the Bankrupt in satisfaction of his Debt, since he became Bankrupt, he shall not have any thing in the Distribu­tion.

Every Creditor may take notice ofNotice of the Commission. the Commission, it being matter of Re­cord, and so must take care to come in in time, 2 Rep. 26. b. Cullamers Case. But it is a good Custom now to give publick notice in the Gazets, or filing such Notice at Guild-Hall, or the Ex­change, or such publick places.

The offer of Creditors to be joined,Contribution, and before they be partakers, is not an effectual offer, without offering to be Contributory to the Charges; but to offer any particular sum is not necessary. Hutton. p. 38.

In Canc. inter Fuller & al’ contra Lance & al’ Hill. 14. Car. 1. A Bankrupt makes an agreement with his Creditors, and af­ter breaks the same; some of the Credi­tors take out a Commission, and after seven Months assign the Estate; and o­ther Creditors who have notice of the Commission, prefer their Bill to have the Agreement performed, or be admitted to an equal dividend, but they were de­nied relief.

The Form of an Authority to receive Con­tribution Mony.

MEmorand’, We whose Names are hereunto subscribed, being the major part of the Commissioners, named and Authorised by the King and Queens Majesties Commission, grounded upon the several Statutes made concerning Bankrupts awarded against J. S. do hereby think fit, and order by, and with the Consent of the Creditors of him the said J. S. whose Names are subscribed (tho' this is not necessary) that the said Creditors of J. S. who are all willing to come in and pay Contribution-mony to­wards the charges of suing forth and pro­secuting the said Commission, and dis­covering and recovering of the Estate of the said J. S. Such Creditors that have already, or shall hereafter come in­to the said Commission in due time, and seek relief thereby, shall and are hereby ordered to pay the sum of—in the pound for Contribution-mony, for every of their several Debts which they claim to be due and owing to them by, and from the said J. S. And we like­wise further order and think fit, that the said Contribution-mony be paid into the hands of A. B. of &c. who is appointed hereby to receive the same, and to [Page 50] disburse the same, as he shall be by us directed, and as occasion shall be.

It would be convenient that the Com­missioners take Bond of the Trea­surer of the Contribution-mony, to disburse as he shall be by them di­rected, and to render a due account of all his Receipts, Payments and Disbursements.

Of Distribution, Vide infra.

CHAP. VI.

Of the Proceedings of the Commissio­ners. The Form of the Oath. Of the Stile of the Depositions, Of declaring him to be a Bankrupt. Inhibition. A Warrant for Witnesses. A War­rant to send one to the Goal who re­fuseth to be sworn, or to answer; and of Proof of Debts.

HAving considered the Statutes, and cited many excellent Cases, and Resolutions of the Judges, what it is that makes a man become a Bankrupt, in reference to his Trade or Profession, and his Acts or Omissions, and who are Creditors, and what they must do if they will be relieved; I shall now come to treat of the behaviour and management of the Commissioners in this most weighty and important Con­cern.

The Commissioners in the first place summon Witnesses to appear before them, or rather they have them gene­rally provided ready by the Creditors, to examine first, as to his Dealing and Trade, and then as to his Absconding, Fraudulent Deeds, Imprisonment, or o­ther Acts which bring him within the [Page 52] Statutes. And for the better Certainty and Evidence, they take the Depositions of the Witnesses in Writing.

The Form of the Oath to be Admini­stred to the Witnesses upon their Ex­amination.

YOU are here produced as a Witness, by vertue of a Commission out of the High Court of Chancery, to us, and others directed, to be by us examined concerning the Bankrupcy of A. B. late of—&c. Now to such Questions and Iterrogatories as shall be propounded and administred to you con­cerning the said A. B. his Trade or Professi­on, his Absconding, and other Acts which he hath done or suffered, by which he may discovered to be a Bankrupt; and also con­cerning his Lands and Tenements, Goods and Chattels, Debts and Duties, Frauds and Concealments, and other matters and things in obedience to the said Commission, and pur­suant to the several Statutes made concern­ing Bankrupts, you shall true and direct An­swer make, and swear the Truth, the whole Truth, and nothing but the Truth, So help you God. Or you may put the Form of the Oath shorter if you please.

The Stile of the Depositions.

EXaminations and Depositions of Wit­nesses, and other Proceedings, had taken and executed the day of, &c. in the Second Year of the Reign, &c. Anno. Dom. and at other times and places by Adjournment by W. W. Esq S. M. and C. L. by Vertue of the King and Queens Commission of Bankrupts under the Great Seal of England (ground­ed upon the several Statutes made con­cerning Bankrupts) bearing Date at Westminster the day of &c. and a­warded against J. L. of &c. and direct­ed to W. W. Esq R. P. Esq S. M. L. C. and A. B. Gent. Commissioners thereby appointed for the Execution thereof, or any four or three of them as followeth.

After the Depositions of the Witnes­ses to the Trade or Profession, and to the Offence or Acts committed or suffer­ed; sometimes the Commissioners sign a short Memorandum to this purpose.

Upon the Evidence and ExaminationsDeclaring him a Bankrupt. aforesaid, We whose Names are subscri­bed, being the major part of the Com­missioners appointed for the execution of this Commission, do conceive that the aforesaid T. L. the day, &c. was, and [Page 54] did become a Bankrupt within all, or some of the Statutes made concerning Bankrupts; and accordingly we declare him to he a Bankrupt, and to have been so from that time.

But the Commissioners are generally cautious in declaring the Bankrupcy from a certain time, but leave it to a Trial at Law, in case there be any Question or Doubt of it; and this for their own se­curity against Actions that may be brought against them.

Note. The declaring of the Commis­sioners whether he be a Bankrupt or not, doth not acquit him or charge him, unless in truth it were so. 2 Siderfin, 176.

Then let the Commissioners issue out their Inhibition to all persons who are, or have been Debtors to the Bankrupt, or have had dealings with him, or have any of his Goods and Effects in their hands, not to pay any of their Debts, or deliver any of the Goods to him, or his Order. The Form of which Inhibition you may soon frame, or repair to a Ga­zett.

It is convenient to fix this in some publick place of the Town or Towns ad­jacent where the Bankrupt lived; and let them give notice to the Creditors to prove their Debts.

[Page 55]As to the proof of Debts. The Com­missionersProof of Debts. must swear the Creditors which will come in, of the Truth and Value of the Debts due to them.

The Form of the Oath for proving a Debt.

YOU shall swear that A. B. late of, &c. at the time of his becoming a Bank­rupt, was justly, and Bona Fide indebted to you in the sum of and that you have not sithence been any ways paid or sa­tisfied for the same, or any part thereof.

Debts proved upon Oath by the Cre­ditors, as followeth.

Let every man subscribe his Debt.

Be sure to observe and enquire if the Debts were contracted during the Trade.

Vide of this more infra.

A Warrant from the Commissioners for Witnesses.

WHereas the King and Queens Ma­jesties Commission under the Great Seal of England, bearing date the &c. last past at Westminster, grounded upon the several Statutes made concern­ing Bankrupts, hath been awarded a­gainst A. B. of &c. and directed to us, [Page 56] who have hereunto subscribed our Names, and put our Seals; and to B. &c. (here name the rest of the Commissioners) And we being the major part of the Commissio­ners therein named, having taken upon us the execution of the said Commission; and it appearing to us, upon good and sufficient proof, That the said A. B. hath for several years last past gained his li­ving by buying and selling of Cattel, Malt and other Merchandise, and there­by became indebted to several persons in the sum of one hundred pounds and upwards; and whereas upon good and sufficient proof to us made, we have ad­judged the said A. B. to be a Bankrupt to all intents and purposes, within the true intent and meaning of the said se­veral Statutes made against Bankrupts, some, or one of them, before the suing forth of the said Commission. And whereas we are credibly informed, that you whose Names are hereunto subscri­bed, are necessary Witnesses for the dis­covery of the said A. B. and his Estate: These are therefore in their Majesties Names, and by vertue of the Statutes and Commission aforesaid, to Will, Re­quire, Charge and Command you, and every of you, whose Names are subscri­bed; That you be, and personally ap­pear before us, at the House of D. E. situate, &c. upon Tuesday the day of this instant Month of by eight of [Page 57] the Clock of the same day; then, and there to Answer such Questions and In­terrogatories as shall be then, and there demanded of you, and administred to you concerning the said A. B. and his Estate; whereof you are not to fail, un­der the penalties, in and by the said Acts provided against Contemners of the said Authority. Given, &c.

Having served those Persons you in­tend for Witnesses with this, leave an Abstract of it in writing with them severally. As thus,

E S.

YOU are hereby summoned perso­nally to be, and appear before the Commissioners, on Thursday, the day of instant by Nine of the Clock in the Forenoon, at the in L. in the County of &c. concerning a Commission of Bankrupcy in prosecution against L. M. of &c. And hereof you are not to fail at your peril. Dated, &c.

  • A. B.
  • C. D.
  • E. F.

A Warrant to Commit a Person to the Goal who refuseth to be Sworn, and to An­swer Interrogatories.

WHereas their Majesties Commis­sion under the Great Seal of England, bearing date the day of last past, at Westminster, grounded upon the several Statutes concerning Bankrupts, hath been awarded against A. B. of &c. directed to us, who have hereunto put our Seals, and subscribed our Names, and to B. L. &c. and we be­ing the major part of the Commissioners therein named, having taken upon us the execution of the same Commission; and it appearing to us upon good and sufficient proof, That the said A. B. hath for several years last past sought his live­lihood by buying and selling of Cattle, Malt and other Merchandise, and there­by become indebted to several persons in the sum of one thousand pounds and upwards; and whereas upon good and sufficient proof to us made, we have ad­judged the said A. B. a Bankrupt, to all intents and purposes, within the true in­tent and meaning of the said several Sta­tutes made against Bankrupts, some or one of them, before the Date, and su­ing forth of the same Commission; and whereas J. S. was suspected to have im­besled, [Page 59] concealed and secretly disposed of a great part of the Goods and Estate of the said A. B. and was duly summon­ed to appear before us; but hath made default in contempt of our Authority; but at length coming and appearing be­fore us, we then sitting in execution of the said Commission, did obstinately re­fuse to be sworn, and make answer to such Interrogatories and Questions, as we by vertue of the said Commission re­quired him to answer unto concerning the said A. B. and his Estate, according to the true meaning of the said Statutes, for the discovering the Estate of the said A. B. in contempt of the said Statutes, and of the Commission aforesaid, and the Authority thereby to us given. These are therefore to Will, Require and Au­thorize you, and every of you, imme­diately upon receipt hereof, to Appre­hend, Arrest, and to take into your Cu­stody the Body of the said J. S. and him safely to convey to their Majesties Goal for the County of and him there to deliver to the Keeper of the said Goal, who is hereby Required and Authorized by vertue of the said Commission and Statutes aforesaid, to receive the said J. S. into his Custody, and him safely to keep and detain, without Bail or Mainprise, un­til he shall conform himself to our Au­thority, and be thence delivered by due course of Law. And for his, and your [Page 60] so doing, this shall be your sufficient Warrant. Given under our Hands and Seals, the day of &c.

Commissioners commit one to the Goal for refusing to answer Interrogatories for the escape of the Committee; Action is brought against the Goaler. The Acti­on lies.

There were three exceptions to the Declaration.

  • 1. Because it's said the Lord Chance­lor dedit plenam Potestatem, which is not good, for his Office is Ministerial, and the Statute gives the Power; but per Curiam, the Declaration is good; for it is per Commissionem dedit, and it is also juxta Statut.
  • 2. Exception, it is alledged the Defen­dant suffered him to escape, and he doth not say he was not satisfied. Per Cur. it is good, and shall be intended he is not sa­tisfied, and the escape is the Tort.
  • 3. It is alledged the Commissioners offered Interrogatories to him, and it is not shewed what they were. But this was over-ruled, and Judgment pro Quer. 1 Rol. Rep. 47. Barnes and Cary against the Sheriff of Bristol.

CHAP. VII.

The Commissioners Power in reference to the Bankrupt: Of Proclamation, and the form of it; of breaking Houses, &c. in reference to the Bankrupts Wife: Of the Examination of the Bankrupt and his Wife: Of the Exa­mination of Witnesses, and others for the discovery of the Estate and Debts of the Bankrupt: Of the Penalties of refusing to be Sworn, to be Exami­ned, or to Discover: Of Perjury; and the forfeitures, how to be appli­ed: And of Interrogatories.

Commissioners Power.

1. As to the Bankrupt himself.

To cause him to appear

  • By Proclamation.
  • By breaking up Houses.
IF any such Bank­rupt
Per Stat. 13 Eliz.
doth with­draw himself from his usual Mansion-House; that then the Commissioners, or the major part of them have full Power and Authority to award five Pro­clamations
Proclamations.
[Page 62] in the King's Name, upon five sundry Market-days, in such places, near the place where such Bankrupt hath commonly dwelled, or made his abode; commanding them by the same Proclamations in the King's Name, to return with all convenient speed, and to yield his Body before the said Com­missioners, having Authority as afore­said, or one of them, at such time and place, as by the said Proclamation shall be appointed: And if the said person do not repair and yield his or their Body, as is aforesaid, that then the Bo­dy of such Offender shall be adjudged and taken to all intents and purposes out of the Kings Protection. And
Concealing the Person of the Offender.
that also every Person and Persons that shall wittingly and willingly Receive, Detain, or keep secretly any Person or Persons so demanded by Proclamation, as aforesaid, shall suffer such pains, by Imprisonment of his, or their Bodies, or to pay such Fine to our Sovereign Lord the King's Majesty, as to the Lord Chancelor or Lord Keeper of the Great Seal (being informed there­of) by the Commissioners so to be ap­pointed, as aforesaid, or the major part of them shall seem meet and conveni­ent for the said Offence or Offences.

Per Stat. 1 Jac. c. 15. ‘The said Com­missioners may call before them, or the [Page 63] major part of them the said Bankrupt; and if upon lawful warning left orWarning. made 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 thenceforth it shall be Lawful for the greater number of the said Commissio­ners to appoint, to proclaim the saidProclaim. party a Bankrupt, at such publick place or places where the said Commissioners shall think meet, warning him, her or them to appear before them upon the said Commission at some time appoint­ed. And that if upon such several Pro­clamations made in some publick place, the party offending yield not his Body, &c. the Commissioners may award a Warrant to such fit persons as theyWarrant to Apprehend. think meet, to apprehend the Body or Bodies of such Offender, and to bring him before the said Commissioners, wheresoever the said party or parties offending may be found in place privi­ledged, or not, to be examined by the said Commissioners, or the greatest part of them.’

[Page 64]After notice left in writing three se­veral times as the Statute directs; then the Commissioners may pro­ceed to Proclamation.

The Form of a Proclamation.

OYes, Oyes, Oyes, The King and Queens Majesties do straitly Charge and Command A. B. late of that he on the day of this Instant, &c. do yield his Body before E. M. Esq &c. their Majesties Commissioners, named and appointed for the execution of the Statutes of Bankrupts against the said A. B. or the major part of them that shall be then present at the House of R. L. &c. upon the Pains and Peril in the said Statutes in that case made, provided and appointed.

God Save the King and Queen.

The Commissionrs Power in breaking up Houses.

BY the Stat. 21 Jac. c. 29. It is enacted, ‘That in the execution of the said Commission, it shall be Lawful to, and for the said Commissioners, 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 and appointed by their War­rant or Warrants under their Hands [Page 65] and Seals, to break open the House or Houses, Chambers, Shops, Warehouses, Doors, Trunks or Chests of the said Bankrupt, where the said Bankrupt or any of his or her Goods or Estate shall be, or reputed to be; and to seise upon, and order the Body, Goods, Chattels, ready Mony, and other Estate of such Bankrupt, as by the said former Laws are limited and appointed, whether it be by Imprisonment of his or her Bo­dy, or otherwise as the said Commissio­ners, or the greater part of them shall think meet.’

The Commissioners may break open the House of a Bankrupt for Debt of the Debtor; and if the Bankrupt convey his Goods to his Neighbours House, the Commissioners may not, but the Sheriff may break open the House, because he is a sworn Officer of the Kings. The Commissioners may break open the Booth of another to come to the Bankrupts Goods, per Mr. Barckdale, Lect. Lincolns-Inn, 1627. But Quaere if the Commissi­oners do not now break open any House, Shop or Room where the Bankrupt or his Goods are, tho' they are in the House of a Stranger, Sed Cave, for this part of the Statute is very penal, and shall be ta­ken strictly. And possibly a Judge at a Trial may think that to be Law, which upon mature reflexion appears not to be so.

The Commissioners Power concerning the Bankrupts Body, and concerning the Bankrupts Wife.

The words of the Statutes concerning this are as follow.

PER Stat. 13 Eliz. c. 7. It is enacted, ‘That the Commissioners by vertue of that Act, and of such Commission, shall have full Power and Authority to take by their Discretions such Or­der and Direction with the Body and Bodies of such person, where­soever he or she may be had, either in his or her House or Houses, Sanctuary or elsewhere, as well by Imprisonment of his or her Body or Bodies, as also with all his or her Lands, &c.

Per Stat. 1 Jac. c. 15. It is enacted, ‘That if upon Lawful Warning or No­tice left, or made in Writing three se­veral times at the Dwelling House, &c. (vide supra) the Bankrupt shall not ap­pear, then they may make Proclamati­onProclamation. (prout supra) and if then the Bank­rupt appear not, then the Commissioners are impowred to award a Warrant toWarrant. such sit Person or Persons as they think meet, to apprehend the Body of such Offender, and to bring him, her or [Page 67] them so offending before the said Com­missioners, wheresoever the Parties so Offending may be found in place pri­viledged or not, to be examined by the said Commissioners, or the greater part of them. And if therein the Offender or Offenders shall refuse to be exami­ned, or refuse to answer fully to every Interrogatory, to him, her or them 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 Offender or Offenders to some close or strait Imprisonment,Imprisonment. there to remain until he, she or they better conform him or her self.’

And by the Stat. 21 Jac. c. 19. It is Enacted, ‘That 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 Commission, shall have Power and Au­thority to examin upon Oath, the WifeWife Examined and Wives of all and every such Bank­rupt, for the finding out and disco­vering 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 Per­son and Persons, or by their own Act [Page 68] 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 and examined, or for not disclosing the truth upon her or their examination, as in and by the said former Laws, or either of them is already made and provided against any other Person or Persons in the like Cases.’

So that by this Law the Wise must be summoned to come before the Com­missioners, and if she come not, or refuse to be sworn, they may im­prison her as well as her Husband: So likewise if she refuse to discover the truth.

A Bankrupt was committed to the Fleet, the Warrant to the Warden of the Fleet was, to receive and keep in Prison, to answer and to satisfie all such matters as shall be objected against him. The Question was, If the Commissioners may license him to go at large to treat a­bout his Debts. Per Cur. If the Warrant had been that the party should have been in Execution, then he could not be en­larged; but the Court advised them to take security, lest he should withdraw himself. But if one had Judgment against a Bankrupt, and upon an Habeas Corpus [Page 69] brought, he is committed in Execution, without a Cap’ Utlagat’ then the Com­missioners cannot enlarge him, Noy 140. Edwards▪ Case.

By Stat. 21 Jac. c. 19. It is Enacted, ‘That if any Bankrupt, upon his or her Ex­amination or Examinations to be taken before the said Commissioners executing the said Commission, be found fraudu­lently or deceitfully to have conveyedThe Bankrupts fraudulent con­veyance away of his Goods. away his or her Goods, Chattels, Lands, Tenements, Offices, Fees, Rents or An­nuities, or other Estate, or any part thereof, to the value of 20 s. 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, delay or hinder his or her Creditors of the same, and shall not upon his or her examination discover unto the said Commissioners, 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, shall or may be indicted for such fraud orIndictment▪ [Page 70] abuse, at the Assises or General Sessions, to be holden before the Judges of Assise, or Justices of the Peace of the County or Place where he or she shall become Bankrupt: And if upon such Indict­ment or Indictments, the Bankrupt be thereof convicted, he or she so convict­ed, shall be set upon the Pillory in somePillory. publick place, for the space of two hours, and have one of his or her Ears nailed to the Pillory, and cut off.’

Of the Examina­tion of the• Bankrupt. , • his Wife. , and • other Persons as Witnes­ses, Concealers, &c. And of their refusal to swear and discover the Truth, and the Consequence.

BY Stat. 1 Jac. c. 15 If upon five several Proclamations the Bankrupt appear not, the Commissioners may award a Warrant to apprehend his Body, and to bring him before the said Commissioners wheresoever he may be found, to be ex­amined by the Commissioners, prout prius more at large.

And that it shall be lawful for the said Commissioners, or the greater part of them, to examin the said Offender or Offenders upon such Interrogatories touching the Lands, Interrogatories. Tenements, Goods, Chattels, Debts, Bills, [Page 71] Bonds, Books of Accounts, and such other things as may tend to disclose his, her or their Estate, or the secret Grants, Convey­ances, Eloyning of his or their Lands, Tene­ments, Goods, Mony and Debts, as they shall think meet: And if the Bankrupt shall re­fuse to be examined, or to answer fully to every Interrogatory, that then he shall be committed to Prison, prout supra.

By Stat. 21 Jac. c. 19. The Commissi­oners have Power to examine the Bank­rupts Wife upon Oath; and if she come not, or refuse to be sworn, then to in­cur the like penalty with others, prout supra more at large.

Of the Examination of Witnesses, and others, for the discovery of the Bankrupts Estate Real and Personal, and his Debts, and the penalty for refusing to be sworn and examined, or to discover.

PER Stat. 13 Eliz. c. 7. It is Enacted,

That if after any such Act or Of­fence committed, and complaint there­of made to the said Commissioners or the major part of them, by any party grieved concerning the premisses, know­ing, supposing or suspecting any of the Goods, Chattels, Wares, Merchandises or Debts of such Offender or Offenders, Debtor or Debtors to be in custody, use, occupying, keeping or possession of any [Page 72] person or persons, or any person or persons to be indebted to any such Of­fender or Offenders, do make relation thereof to the said Commissioners, so to be appointed, or the major part of them; That then the said Commissio­ners,Concealers. or the most part of them, shall by vertue hereof and of the said Com­mission, have full Power and Authority to send for, and call before them byDebtors. such Process, Ways or Means, as they shall think convenient by their discreti­ons, all and every such person and per­sons so known, suspected or supposed to have any such Goods, Chattels, Wares, Merchandises or Debts in his or their custody, use, occupation, keeping or possession, or supposed or suspected to be indebted to such Offender or Offen­ders; and upon their appearance to ex­amin them, and every of them, as well by their Oaths as otherwise, by such ways and means as the said Commissio­ners, or the major part of them by their discretions shall think meet and conve­nient, for, and upon the specialty, cer­tainty, true declaration and knowledge of all, and singular such Goods, Chat­tels, Wares, Merchandises and Debts of any such Offender or Offenders, as be supposed or suspected to be in his or their custody, use, occupation or posses­sion, and all such Debts as by them or any of them shall be supposed or sus­pected [Page 73] to be owing to any such Offen­der or Offenders.

And if any such person or persons, upon such Examination, do not disclose, and plainly declare and shew the whole Truth of such things as he or they shall be examin'd of concerning the premisses to his knowledge, or do deny to swear; then every such person or persons, so de­nying to swear, or being examined, do not declare the plain and whole Truth concerning the Premisses, upon due proof thereof to be made before the said Commissioners, or the major partPonalty for Ob­stinacy. of them, by Witnesses, Examination or otherwise, as to the said Commissio­ners, or the major part of them shall seem sufficient in that behalf, shall lose and forfeit double the value of such Goods, Chattels, Wares, Merchandises and Debts, by them, or any of them so concealed, and not wholly and plainly declared and shewed; which forfeiture shall be levied by the said Commissio­ners, or the major part of them, of the Lands, Tenements, Hereditaments, Goods and Chattels of such persons so denying to swear, or not disclosing the whole Truth, as is aforesaid, by such ways and means, and in such manner and form, as is before limitted and appoint­ed for the principal Offender or Offen­ders, Debtor or Debtors, and the same [Page 74] forfeitures to be distributed or imploy­ed to, or for the satisfaction and pay­ment of the Debts of the said Creditor or Creditors, in such like manner, rate and form, as is above declared con­cerning the ordering of the Lands and Tenements, Officers Fees, Goods and Chattels of such Offender or Offenders, Debtor or Debtors, as is aforesaid.

Per Stat. 1 Jac. c. 15. For a further in­forcement for discovery of the Bank­rupts Estate, by Examination of Trustees, Concealers, or of such that have Coni­sance of his Estate, according to theConcealers. Statute of 13 Eliz. It is Enacted, ‘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 according to the intent of the said Statute, refuse to come, or shall not come before the said Commissioners at the time appointed, having no law­ful impediment, such as shall be admit­ted and allowed of by the said Com­missioners or the major part of them, and which shall be then signified or [Page 75] made known to the said Commissioners at the time of their assembly; or that any such person or persons, having knowledge or warning of any other as­sembly or meeting of the said Com­missioners again, shall not come and ap­pearRefusal to ap­pear, or an­swer, or dis­close. before them at such time as he or she lawfully may come, having no such lawful impediment as shall then be made known to the said Commissioners, and by them admitted and allowed of as aforesaid, or being come before them, shall refuse to be sworn, and to make answer to such Interrogaorties as shall be administred unto him or them, accord­ing to the true intent and meaning of the said Statute made in the 13 Eliz. or of this present Act, That then it shall be lawful for the said Commissioners to commit to such Ward or Prison, as to them or the major part shall be thought meet, all such person and persons as shall so refuse to be sworn, and make answer to such Interrogatories as shall be so ministred as aforesaid; and also to direct their Warrants to such person or persons, as to them or the greater part of them shall 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 abovesaid; and upon his, her [Page 76] or their refusal to come, or to be exa­mined before the said Commissioners, as aforesaid, to commit the said party so refusing, to such Prisons as the said Commissioners or the greater part of them shall think meet, there to remain without Bail or Mainprise, until such time as the said party so refusing to come, or to be sworn to answer before the said Commissioners, shall submit him or her self to the said Commissioners, and be by them examined according to the true intent of the said Statute, and of this present Act.’

Note. By Stat. 1 Jac. c. 15. It is pro­vided,Witnesses. Charges. That such Witnesses as shall be sent for, shall have such costs and char­ges as the Commissioners in their discre­tion shall think fit, the same to be ratea­bly born by the Creditors according to the proportion of their Debts.

Per Stat. 21 Jac. 15. The Commissio­ners may examine upon Oath, or by any other ways 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 the Commissi­on.

Two refuse to be examined, and the Commissioners make a joint Commit­ment, it's ill; and it was quousque they [Page 77] conform, and upon return of the Habeas Corpus, it is not averred that they were obstinate, 29 Car. 2. B. R. Penrice vers. Wing.

Note. Action on the Case lies against a Sheriff for suffering one to escape, who was committed by the Commissioners of Bankrupts, because he refused to be exa­mined, 1 Roll. Rep. 47. More 834.——The Case of the Sheriffs of Bristol, Vide su­pra.

The Commissioners committed one Jeakile for refusing to swear upon a Com­mission against Thompson. Now he did not refuse to swear, but had sworn he had none of the Bankrupt Thompsons Estate in his hands, but he would not an­swer whether any of Thompsons Estate came to his hands before the Commssi­on sued out, &c. having received his own Debt before, nor per Curiam is he compellable to swear so, upon 1 Jac. c. 15. and then he was committed by A. B. Commissioners, for refusing to swear, &c. whereas the Commission was to A. B. and others, it appears not that A. and B. were a majority or a Quorum, which is ill, 3 Keb. 837. Rex vers. Jeakill.

Of Perjury,• By the Bankrupt, , and • Witnesses, Concealers and others, and the Penalties. 

1 Jac. c. 15. ‘IF upon the Bankrupts examination it appears that he or she, or they have committed any wilful or corrupt Perjury, tending to the hurt or damage of the Creditors of the said Bankrupt, to the value of 10 l. of Lawful Mony of England or above, the party so offending shall or may be thereof indicted in any of the King's Majesties Courts of Record, and being lawfully corrected 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.’ ‘And if any other 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 Par­ties so offending, and all, and every person and persons that shall unlawful­ly and corruptly procure any such un­lawful, [Page 79] 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 incur such forfeitures, and re­ceive and suffer such pains and punish­ments as are limited by the Statute con­cerning perjury, in the 5th Year of the reign of Queen Elizabeth.

The punishment by the said Statute is, The Perjured Person shall forfeit 20 l. and indure half an years Imprisonment without Bail or Mainprize, and his Oath never after to be received. And if he hath no Goods or Lands of that value, then to be set in the Pillory in some Mar­ket Town, and to have both his Ears nail'd, and to be disabled to be a Wit­ness in any Court, 5 Eliz. c. 9. And by the same Statute the procurers of Perju­ry are to forfeit 40 l. and if they have not Estate of that value, then Imprison­ment for half a year, and Pillory, and to be admitted no Witness in any Court of Record.

Of Forfeitures on these Acts, and how to be disposed.

PER Stat. 13 Eliz. c. 7. The Com­missioners are impowred to call be­fore them all such Persons as are known, supposed or suspected to have any Goods, Wares, &c. in his or their Custody or Occupation, &c. and to examine them; and if such person or persons upon such examination, do not disclose, and plain­ly declare and shew the whole Truth of the Premisses, &c. ut supra, shall lose and forfeit double the value of all such Goods, &c. which forfeitures shall be levied by the said Commissioners of the Lands, Tenements, Hereditaments, Goods and Chattels of such persons so denying to swear, or not disclosing the whole Truth, by such ways and means, and in such manner and form as is before limited and appointed for the principal Of­fender or Offenders, Debtor or Debtors; and the said forfeitures to be distributed or im­ployed for the satisfaction and payment of the Debts of the said Creditors, &c. prout supra.

And by the said Statute of 13 Eliz. c. 7. It is Enacted, That if at any time before, or after that any such person becomes a Bankrupt, any persons do fraudulently, by Covin or Collusion, claim, demand, recover, possess or detain any Debts, Duties, Goods [Page 81] Chattels, Lands or Tenements, by Writing, Trust or otherwise, which were, or shall be due, belonging or appertaining to any such Offender, other than such as he or they can and do prove to be due by Right and Consci­ence, for Mony paid, Wares delivered, &c. before the Commissioners, &c. that then eve­ry such person (Concealer, &c.) shall for­feit and lose double as much as he or they shall so claim, demand, detain or possess, which said forfeiture shall be levied, reco­vered and imployed in manner and form as is afore rehearsed.

Provided also, and be it further Enacted, That if it shall fortune, the Creditors to be satisfied, and paid off their Debts and Du­ties, of, or with the proper Lands, Tene­ments, Goods, Chattels and Debts of the said Bankrupts, or of, or with the same, and some part of the forfeitures of the said double values, to be forfeited as is aforesaid, and that there shall remain an overplus of the said forfeitures, of the said double values; That then the one moiety of the said over­plus, of the said forfeitures of the double values so remaining, shall be by the said Commissioners so executing the said Com­mission within convenient time after the le­vying thereof, paid unto the Queens Maje­sty, her Heirs and Successors, and the other moiety thereof shall be by the said Commissi­oners employed and distributed to, and a­mongst the Poor within the Hospitals, in [Page 82] every City, Town or County where any such Bankrupt shall happen to be.

Per Stat. 1 Jac. c. 15. It is Enacted, That all and every Sum and Sums of Mony, which shall be forfeited by force of this said Act, shall be sued for, and recovered by the said 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 Majesties Courts of Record; and the Sum or Sums of Mony so recovered, the Charges of Suit being deducted, shall be distributed and divided towards the payment of the said Creditors of the Bankrupt.

  • If persons suspected to have Goods, &c. of the Bankrupt, do not upon their Examination discover the whole Truth, they forfeit double the value of the Goods.
  • If persons fraudulently claim, detain, &c. any Lands, Debts, Duties, Wares, Goods, &c. of the Bank­rupt, either before or after he be­comes a Bankrupt, shall lose double as much as they shall so claim, &c.
  • He that is guilty of Perjury, in his Examination, shall forfeit 20 l. and he that is guilty of Subornation of Perjury, shall forfeit 40 l. besides o­ther Penalties. Vide supra.

Interrogatories.

AS to Interrogatories, they are to be framed according to the matters to be examined to; tho' some will have ready all the general Interrogatories that will fit the Examinations throughout all the Statutes. Some Commissioners a­gain will not examine by Iterrogatories at all, for fear of some leading Questi­ons may make Witnesses frame Evasions. But I cannot commend this way, it be­ing a sort of careless behaviour, and too slight for such a weighty matter as this, considering the Penalties attending the Offenders against the Statutes. Besides, at a Trial, Depositions may be made use of as Evidence (especially against the party himself, or in case of the Death of Witnesses) and to read a Deposition without referring to Interrogatories, is to judge upon an Answer without know­ing the state of the Question. I had thought to have inserted here the Forms of some Comprehensive Interrogatories, but there is such variety of Examination in the executing this Commission, that I shall leave that to the Ingenuity of the Commissioners, who may easily form Interrogatories, as the nature of the Case, and the Matter before them shall direct.

CHAP. VIII.

Of the Disposition of the Bankrupts Estate, Freehold and Copyhold: Of Redemption of Lands, Mortgaged: Of Trusts, Sales, Settlements of Lands: What shall be accounted Fraudulent; and when, and in what Cases Purchasers are safe, with ma­ny late Cases and Resolutions there­on.

PER Stat. 13 Eliz. c. 7.

The Com­missioners shall have full power and authority to take by their Discretions, such order and Direction with all (the Bankrupts) Lands or Tene­ments, Hereditaments, as well Copy or Customary-hold as Freehold, which he or she shall have in his or her own Right, before he or she became Bank­rupt; and also with all such Lands, Te­nements and Hereditaments, as such per­son shall have purchased or obtained for Mony, or other recompence jointly with his Wife, Children or Child, to the only use of such Offender or Offenders, or of, or for such Use, Interest, Right or Title, as such Offender or Offenders then shall have in the same, which he or [Page 85] she may lawfully depart withal, or with any person or persons, of trust to any secret use of such Offender or Of­fenders; and also with his or her Mo­ny, Goods, Chattels, Wares, Merchandi­ses and Debts wheresoever they may be found or known, and cause the said Lands, Tenements, Fees Annuities, Of­fices, Goods, Chattels, Wares, Mer­chandises and Debts to be searched, viewed, rented and appraised to theView. best value they may, and by Deed in­dented, inrolled in one of the Queens Majesties Courts of Record, to make Sale of the said Lands, Tenements andSale. Hereditaments, and of all Deeds, Wri­tings and Evidences touching only the same, belonging to such Offender or Offenders, Debtor or Debtors; and also of all Fees, Annuities, Offices, Goods and Chattels, or otherwise to order the same for true satisfaction and payment of the said Creditors; that is to say, to every of the said Creditors a portion,Distribuiion. rate and rate-like, according to the quantity of his or their Debts; and that every Direction, Order, Bargain, Sale, and other things done by the said persons so Authorised, as is aforesaid, in Form aforesaid, 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 [Page 86] and Heirs, Child and Children, and such person or persons as by such joint Purchase, with the said Offender or Offenders, as is aforesaid, have, or shall have any Estate or Interest in the Pre­misses; 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 is aforesaid; and also against the Lords of the Mannors, whereof the said Copyhold or Custo­mary Lands been holden, their Heirs, Successors and Assigns, and every of them.

Provided always, and be it Enacted, That all, and every person or persons,Copyhold. to whom any such Sale of Copyhold or Customary Lands or Tenements shall be made, shall before such time as they, or any of them shall enter or take any profit of the same Lands or Tenements, agree and compound with the Lords of the Mannors, of whom the same shall be holden, for such Fines or Incomes as heretofore hath been most usual and accustomed to be yield­ed or paid therefore; and that 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 to the said Vendee or Vendees upon re­quest, [Page 87] the same Copy or Customary Lands or Tenements, by Copy of Court-Roll of the said Mannors, for such Estate or Interest as to them shall be sold, and reserving the Ancient Rents, Customs 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.

And it is further Enacted, That if any person or persons, which is, or shall be published and declared to be a Bank­rupt within this Act, shall at any timePurchase after Bankrupcy. after purchase any Lands, Tenements, Hereditaments Free or Copy, Offices, Fees, Goods or Chattels; or that any Lands, Tenements, Hereditaments Free or Copy, Offices, Fees or Chattels shall Descend, Revert, or by any meansDescent after Bankrupcy. come to any such person or persons be­ing Bankrupt, as is aforesaid, before such time as their Debts due to their Creditors shall be fully satisfied and paid, or otherwise agreed for; that then the said Lands, Tenements, Hereditaments as well Free as Copy, Offices, Fees, Goods and Chattels, shall by vertue of this Act be by the said Commissioners or the major part of them, bargain­ed, sold, extended, delivered and used for, and towards the payment of the [Page 88] said Creditors, in such like manner and form, as other the Lands, Tene­ments, Hereditaments Free or Copy, Offices, Fees, Goods and Chattels of the said Bankrupts, which they had when they were first declared to be Bank­rupts, should, or might have been bar­gained, sold, disposed or used, by ver­tue of this Act.

Provided always, that this Act shall not extend to any Lands, Tenements or Hereditaments Free or Copy, which heretofore have been assured by any such Bankrupt, or hereafter shall be assured by any Bankrupt, before he be­comesConveyance bona fide. a Bankrupt: So always that such assurance be made bona fide, and not to the use of the Bankrupt himself only, or of 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 or consenting to the fraudulent purpose of any such Bankrupt, to de­ceive his Creditors.

Per Stat. 1 Jac. c. 15. It is Enacted, ‘That if any person which hereafter, is, or shall be Bankrupt, by intent of this Statute, shall convey or procure, or cause to be conveyed to any of his Children, or other person or persons, any Mannors, Lands, Tenements, He­reditaments, Offices, Fees, Annuities, [Page 89] Leases, Goods, Chattels, or transfer hisConveyance. Debts into other Mens Names, except the same shall be purchased, conveyed,Settlement. or transferred 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, shall be in the Power and Autho­rity of the Commissioners in this be­half to be appointed or the more part of them, to Bargain, Sell, Grant, Con­vey, Demise, or otherwise to Dispose thereof, in as ample manner as if the said Bankrupt had been actually seised or possessed thereof, or the Debts were in his own Name of the like Estate or Interest, to his or their own use, at such time as he or she became a Bank­rupt. And that every such Grant, Bar­gain, Sale, Conveyance and Disposi­tion of the said Commissioners, or of the greater part of them, shall be good and available to all intents, constructi­ons and purposes in the Law against the Offender or Offenders, his Heirs, Executors, Administrators and Assigns, and such Children and Persons as shall be subject to this Statute, and against all other Person and persons claiming by, from, or under such Offender or Offenders, or such said other persons to whom such Conveyance shall be made by the said Bankrupt, or by his means or procurement.’

[Page 90]And as for the Power of the Com­missioners, touching the Debts due to the said Bankrupt, it is further Enacted, ‘That the Commissioners of BankruptsDebts due to Bankrupt▪ or the greater part of them, shall have Power to Grant and Assign, or other­wise to Order or Dispose all, or any of the Debts due to, and for the benefit of the said Bankrupt, by what person or persons soever, or in what manner and form soever, to the use of the Cre­ditors of the said Bankrupt, according to the true intent of the Statute of 13 Eliz. And that the same Grant Assign­ment or Disposition of the said Debts in form aforesaid, to be made by the said Commissioners or the greater 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, Assigned or Ordered by the said Commissioners or the greater part of them, as fully to all intents and pur­poses, as if the said Bill, Bond, Bonds, Statutes, Recognisances, Judgments or Contract, whereupon the said Debt or Debts, Deed or Deeds shall arise or grow, had been made, to or with, or for the said person or persons, to whom the same shall be so Granted, Assigned or Disposed by the said Commissioners; and that after such Grant, Assignment or Disposition made of the said Debts, [Page 91] that 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 thereof; neither shall the same be Attached as the Debt of the Bank­rupt,Attachment. 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 same Debts 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, any Law, Statute, Use or Custom to the contrary thereof, in any wise notwithstanding.’

Per Stat. 21 Jac. c. 19. It is Enacted,

Tha the said Commissioners, or the greater number of them, shall have Power by Deed indented and inrolled within six Months after the making thereof, in some of his Majesties Courts of Record at Westminster, to Grant, Bargain, Sell and Convey any Mannors, Lands, Tene­ment or Hereditaments, whereof any Bankrupt is, or shall be in any ways sei­sed of any Estate in Tail, in Possession,Lands Entail'd. [Page 92] Reversion or Remainder and whereof no Reversion or Remainder is, or shall be in the King's Majesty, 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 of all such Bankrupts; and 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 Issues of the Body of such Bankrupts, and against all and every person and persons, claiming any Estate, Right, Title or Interest, by, from or under the said Bankrupts, after such time as such person shall become Bankrupt, and against all, and every other person and persons whatsoever, when the said Bankrupt by Common Recovery, or o­ther ways or means might cut off or de­bar from any Remainder, Reversion, Rent, Profit, Title or Possibility, into, or out of the said Mannors, Lands, Te­nements or Hereditaments.

And it is further Enacted, That if any Bankrupt shall Grant, Convey or As­sure any Lands, Tenements, Heredita­ments, Goods, Chattels, or other Estate unto any person or persons, upon Con­ditionMortgages. or Power of Redemption at a day to come, by payment of Mony or [Page 93] 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 Mony, 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 power to Sell and Dispose of such Lands, Tenements, Hereditaments, Goods and Chattels, and other Estates so Granted, Conveyed or Assured, up­on Condition, to and for the Benefit of the Creditors, as fully as they may Sell or Dispose of any the Estate of the Bankrupt.

General Notes of Sales by Commissioners.

OBserve, That if Commissioners sell the Lands of the Bankrupt, and one of them hath right to the Land so sold, his right by this will not be extinct, Godb. p. 319.

Note, It's laid down in Jones Rep. p. Where the Sale of the Com­missioners may be defeated. 203. In Awdley and Halsey's Case, as a Rule, where the owner of Goods or Lands, by his own Act may not controul a Gift or a Charge; there if he become a Bankrupt, the Gift or Charge may not be defeated. If a man Bargain and Sell Lands, and be­fore Enrolment, he becomes a Bankrupt, and after the Deed is inrolled, there the Bargainee shall hold the Land discharged from the Commissioners of Bankrupts: So if a Man gives Goods or Lands upon a precedent Condition, and after becomes a Bankrupt, and after the Condition is performed, this defeats the Power of the Commission. If a Man makes a Feoff­ment, or gives Goods upon Condition, and after becomes a Bankrupt, and the Lands or Goods are sold by the Com­missioners, and afterwards the Conditi­on is broken, and the Feoffor or Donor re-enter or re-seise the Goods, the Sale is defeated.

[Page 95]The Explication of these Statutes will be better illustrated with the ensuing Cases and Considerations.

First as to the Bankrupts real Estate.

  • Freehold.
  • Copyhold.

Of the Sale and Disposition of the Free­hold Estate of the Bankrupt.

  • I. SUch Lands which are in his own possession at the time of the Bank­rupcy, as an Estate in Fee, in Tail for Life or Years.
  • II. Remainder and Reversion.
  • III. That which he purchased, or des­cended to him afterwards.
  • IV. Settlements on Marriage, or on Wife and Children, and Estates conveyed in in Trust, and in reference to Purcha­sers.
  • V. Lands Mortgaged.
  • VI. Lands extended by such as pretend to be Accountants to the King, or Goods seised, vide infra sub Tit. Dis­posal of the Personal Estate, &c.

[Page 96]I. Lands in his own possession at the time of his becoming a Bankrupt.

1. What he hath in his own Right, as Estate in Fee, Tail, Life or Years, Free­holdIntail'd Lands. or Copyhold. The Commissioners may sell all Intail'd Lands (except such whereof the Reversion or Remainder in the King, of the Gift or Provision of the King) and such Sale shall be good a­gainst the Bankrupt and his Issue, and all those in Remainder or Reversion, which the Bankrupt by common Recovery or otherways might cut off or debar. So that in such Case the Sale by Commissi­oners shall bar those in Reversion or Remainder, as much as if the Bankrupt himself had suffered a Common Recove­ry; and observe the words in Stat. 21 Jac. Cut off or Debar from any Remainder, Re­version, Rent, Profit, Title or Possibility, in­to, or out of any Mannors, &c.

I will put this Case. Lands are setledContingent Estate. Son. to A. and B. for their Lives, and after their Deceases, to the use of the first Son of their Bodies, lawfully to be begotten, and to the Heirs Males of such first Son, and for want of such Issue, to the use of the second Son, &c. in Tail Male, and so to the tenth Son. A. becomes a Bankrupt before he hath a Son: Whe­ther the Commissioners may sell these Lands, and make to the Purchaser a Good Estate? I hold they may; for [Page 97] tho' A. be not Tenant in Tail, but bare Tenant for Life, yet the words in the Statute being the Bargain and Sale shall be good against all and every other person and persons whomsoever, whom the Bank­rupt by Common Recovery or otherwise might cut off and debar from any Remainder, Re­version, Rent, Profit, Title or Possibility: It seems this Bargain and Sale shall be good. For A. the Father, before Issue, by his bare Feoffment might destroy the con­tingent Estate, as it is in Archer's Case. But were the Settlement made so as to support the contingent Remainder (as is usully done) so that the Father could by no means debar it by any act he could do, then it would make a greater Question; and yet if the Commissioners could not sell in such case, as Settle­mentsVoluntary Set­tlement. are generally made now; the Act in this Point might be easily eluded. (This is to be understood of voluntary Settlements.)

A Man makes a Lease of certain Lands to A. B. for three Lives to begin after the death of J. S. if the three Lives shall so long live. A. B. becomes a Bank­rupt. This Lease to A. B. is but a possi­bility,Possibility. for J. S. may survive all the three Lives, and so it is a thing not grantable. Yet I think the Commissioners may sell this within the intent of these words; for tho' A. B. cannot properly grant this, yet it is such a thing as he may forfeit or extinguish.

[Page 98]A. is Tenant in Tail, Remainder to B. in Tail. B. becomes a Bankrupt, A makes a Feoffment in Fee and dies, and the Commissioners sell these Lands be­fore B. hath recovered in a Formedon, who shall bring the Formedon? Or whe­ther the Act doth vest the Estate in the Purchaser, that he may enter, and have Ejectment? I hold that this Sale is good; for tho' the Remainder Man claims no Estate under the Bankrupt, yet the Bank­rupt by Common Recovery might have barred him; and the Act saith such Bar­gains and Sales shall be good, and the Assignee shall bring a Formedon.

A Bankrupt commits Felony, the Land shall not Escheat, but the CommissionersEscheat. may sell it; this is to be understood of a Common Lord.

If one Bargain and Sell his Land, andBargain and Salo, and Bar­gainor becomes a Bankrupt be­fore Inrollment. before Inrollment becomes a Bankrupt, this Land may not be sold by the Com­missioners, according to the Rule put be­fore by Jones: But if he makes a Feoff­ment, and a Letter of Attorney to give Livery, and then becomes a Bankrupt before the Seism delivered, these Lands in such case may be sold, B. R. 4 Car. 1. The reason of the difference is, in the first Case the Bargainee is in by the Bar­gain and Sale, and not by the Inroll­ment; and the Bankrupt could not by his own Act defeat this; but no Estate in the other Case passeth at all till the [Page 99] Livery be executed: And then in the last Case, his Letter of Attorney is re­vocable, and his becoming a Bankrupt before the Estate executed, is quasi a Countermand or Revocation in Law. The first Reason is best.

2. Lands settled in other Mens Names;Lands in other mens names▪ in Trust for the Bankrupt.

It is plain these are within the Sta­tute.

If a Bankrupt grant his Lands or Goods, or transfer his Debts in other Mens Names, except to his Children upon Marriage (they being at the Age of Consent) or upon valuable Considera­tion, the Commissioners notwithstanding may sell them, and the Sale shall be good.

But if one be a Merchant, and not in Debt, and he purchase for another, or give to another, and there be no fraud in it to deceive Creditors, this is good, March. 12. p. 32.

Of Lands Purchased by, or Descended or Devised to the Bankrupt since he was a Bankrupt.

PER Stat. 13 Eliz. If any person who is or shall be declared to be a Bankrupt, shall at any time hereafter purchase any Lands, Tenements, Hereditaments 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 Bankrupt before such times as Debts due to their Creditors shall fully be sa­tisfied and paid, or otherwise agreed for, then the said Lands▪ &c. shall be sold as other Lands, &c. which the Bankrupt had at the time of his becoming a Bankrupt. Vid. supra.

This Clause is to be understood of such Lands which descend or revert to him, and which were in a remote possibility of ever hapning. As suppose a Father seised of Lands in Fee, hath issue a Son, and the Father dies, and the Uncle is a Bankrupt, then the Son dies, and the Lands descend to the Uncle, these could not be sold by the Commissioners, with­out this Clause in the Statute. Tho' Re­versions after Estates for Life or Years might have been sold by the other Clause of this Statute, or any Estate wherein the Bankrupt hath an Interest in futuro. [Page 101] But tho' a Bankrupt hath the Remain­der or Reversion in Fee after an Estate in Tail, yet this cannot be sold by Com­missioners till it fall, because the Tenant in Tail hath power to bar this Remain­der or Reversion.

Suppose a Judicial Office, or Office ofOffices. Trust, which cannot be executed by a Deputy, be granted for Life, and the King grants the Reversion to J. S. for Life, he who hath the Grant of the Reversion becomes a Bankrupt, and then the Office falls, how shall the Commissioners dispose of this Office? They cannot execute it themselves, neither can they put in a Deputy. I conceive if the Officer absents, he forfeits his Office, and then the King grants it over; but this is no relief to the Creditors: Therefore Mr. Stone thinks well, the Statute doth not mean such Offices of Trust, which are annexed to the Party; but other Offices of Inheri­tance, as Keeper of a Forest, Warden of the Fleet, &c.

Land is devised to a Bankrupt, theOf Land devi­sed to a Bank­rupt. Commissioners may sell, and the Bank­rupt shall not wave the Devise.

Of Lands Mortgaged, or Estates on Condition.

PER Stat. 31 Jac. c. 19. The Commissi­oners may Assign and Appoint such Person as they may think fit, to make tender or payment of the Mony, as fully as the Bankrupt might have done; and after such tender or payment they shall have power to sell, &c. Vid. supra.

This is in Case the Bankrupt hath Mortgaged any Lands to another. But suppose Lands are Mortgaged to him; as a Feoffment in Fee for 500 l. is made to him and his Heirs, provided that if theCondition of a Feoffment, that if the Feoffor pay not such a sum, then for a further sum the Feoffor to make the Estate ab­solute. Feoffor do not pay such a sum of Mony such a day, then for a further sum the Feoffor is to make it an Estate absolute. The Feoffee becomes a Bankrupt, and the Mony is not paid at the day, the Commissioners have not power by this Act to force the Feoffor to make an ab­solute Fee, but Chancery will compel him.

A. B. makes a Lease, rendring Rent with a Clause of Re-entry, and then be­comes a Bankrupt and absconds, &c. who shall enter if the Rent be unpaid? The Assignee of the Commissioners, especi­ally if the words be in, that then it shall be lawful for the Lessor, his Heirs or Assigns to Re-enter; for tho' the Assig­nees [Page 103] of the Commissioners are not the Assignees in Fact to the Bankrupt, yet they are so in Law; and especially by the Equity of this Statute: And so it should seem to be in other Cases of En­tries for Conditions broken, or Distress for Arrears.

If a Lease is made to A. B. for 21Conditions. years, provided if he do such an Act, then he shall have Fee; A. B. becomes a Bankrupt and absconds. Quaere if the Assignee of the Commissioners shall per­form this Act, and so gain the Fee? Vi­de infra.

A Merchant makes a Feoffment in Fee,Commissioners tender the Mo­ny on a Mort­gage. upon Condition upon payment of Mony, to Re-enter, he becomes a Bankrupt, the Commissioners may tender the Mony at the day, and sell the Land.

Of Lands whereof the Bankrupt is jointly seised.

IT is clear, that if two be jointly sei­sed of Lands, and one becomes a Bankrupt, his moiety may be sold by the Commissioners, nay, tho' he be dead, and Survivorship shall not take place, Vide infra.

Put the Case, there are two Jointe­nants, and they are disseised; one of the Jointenants becomes a Bankrupt, and then dies; I question whether the Commis­sioners [Page 104] shall sell in this Case? for the words of the Statute of 13 Eliz. are, Such Use, Interest, Right or Title as such Offender might lawfully depart with: Now before Entry he could not grant his moiety; yet he may release before he dies.

Two Women Jointenants of a Lease for years; and one takes Husband who becomes a Bankrupt; the Commissioners may dispose of the Interest of a Moiety; and yet quaere, for Chattels real are given to the Husband if he survive; but if the Husband die before the Wife, she shall have it.

A Bankrupt hath Land in the Right ofThe Wives Land. his Wife, it may be sold during the Co­verture; and if she be a Feme Merchant the whole shall be sold.

A Feme sole is seised of Land in Fee, B. contracts with C. an Ironmonger, and D. a Working Smith only (for Mony paid by them) to marry A. and then that after the said Marriage, he and A. will levy a Fine of the Land of A. to the use of C. and D. and their Heirs: The Marriage is had, the Fine is levied, C. is outlawed, D. absents. In this Case C. is a Bankrupt, but not D. and the sale of the moiety of the Land is good, per Mr. Stone.

The Dower of a Bankrupts Wife shall never be sold. Aliter, If she marry one that is a Bankrupt.

[Page 105]Two Jointenants, one is a Bankrupt, the Commissioners seise a moiety, the Bankrupt dies, no part shall be sold by Stat. 13 Eliz. but by Stat. 1 Jac. a moie­ty may be sold; for that Statute saith the Commissioners shall proceed as if he were living.

Lands• Setled. , and • Sold.  Settlements: What shall be accounted Frau­dulent and shall be avoided, and the Sale by the Commissioners good, and what not.

Vide supra Stat. 1 Jac. c. 15. Conveyance to Children, except on Marriage, or some Valuable Consideration.

Vide Supra, Crisp and Plats Case, 1 Croke, 548.

IN consideration of Marriage; a man makes a Conveyance to the use of himself and his Wife, and afterwards be­comes a Bankrupt; a Commission is ta­ken out against him, and the Lands are sold by the Commissioners; the Sale ad­judged good, and the Deed fraudulent. In this Case within half an year after this Settlement he became a Bankrupt; so as there seems to be fraud in the Convey­ance; but this is not exprest in the Plead­ing, [Page 106] as it might have been; and this is not in dispute upon a Special Verdict, but comes in question on point of plead­ing, which is to be taken strongly against him that pleads it; and he hath not ex­prest any Valuable Consideration as heValuable Con­sideration. might have done; as Consideration of a Portion, or performance of Articles made upon Marriage, or that the Wife had joined in selling some part of the Land.

The Wife is within the Statute 1 Jac. Wife, Chil­dren. and the providing for Wife and Chil­dren is providing for himself, Stiles Rep. 288, 289. Tucker and Cosh. But I have seen this Case reported by a Grave Ser­jeant at Law, that the Land may not be sold, quia guerdon pudicitiae.

All fraudulent Conveyances, to deceive Creditors, are within this Statute.

A fraudulent Deed must be so at theFraudulent Deed. beginning, for subsequent fraud cannot make it so.

If a Man purchase Land after the time of his Trading, and his being in Debt, and do purchase it in the Name of his Wife or Children fraudulently, this will be liable to sale. Aliter, If it be purchased before he becomes to be a Merchant, Marsh Rep. 34. A. purchased Copyhold to him and his Son for their Lives, the Remainder to his Wife in Fee; and after this becomes a Merchant and a Bankrupt, and solely took the Profits till he became a Bankrupt, this shall not [Page 107] be sold by the Commissioners, Vide supra Crisp's Case

A Settlement made by the HusbandWife joins with the Husband in selling part of her former Jointure. for the Jointure of the Wife, reciting that the Wife had joined with the Husband to sell part of the former Jointure in which he and she were Tenants for Life, the Remainder in Tail to the first and tenth Son, Remainder to his Heirs; by Hales at a Trial at Bar, this is not frau­dulent, tho' he alone having no Issue might bar this contingent Remainder, B. R. 24 Car. 2. Scot and Bell.

In an Assise between Creditors andBargain and Sale. Conside­ration. the Bankrupts Son. It was found, that the Father by Indenture, in considerati­on of love which he bore to his Son, and for natural affection to him, bar­gained, sold, gave, granted and con­firmed the Land unto him and his Heirs; this Deed was Inrolled: This Land shall not pass unless Mony had been paid, or the Estate executed, for the Use shall not pass. Crok▪ Jac. p. 127. Osborn and Churchman.

In a Trial at Bar; the Son and Daugh­ter of Sir Anthony Bateman were Defen­dants in Ejectment; the Defendants ad­mitted the point of Sir Anthony's Bank­rupcy, but set up a Conveyance made by Sir Anthony to them for the payment of 1500 l. apiece, being Mony given to them by their Grandfather, Mr. Rus­sel; to whom Sir Anthony took out Letters [Page 108] of Administration; per Hales, It is a Vo­luntaryVoluntary Con­veyance or not. Conveyance, unless that you can prove that Sir Anthony had Goods in his Hands of Mr. Russels at the time of the executing it; so they proved that he had, and there was a Verdict for the Defen­dants, Mod. Rep. 76. Sir Anthony Bate­man's Case.

A Man may settle Lands on his SonSettlement. before he be a Bankrupt, and if it be not by fraud and to deceive Creditors, it shall be good, (and the fraud must be found by the Jury) the Statute saith, the Sale shall be good against such Offender, and he is no Offender till he is a Bankrupt, Jones p. 438. Crisp and Platt. Vide su­pra.

What Sales and Assurances shall be avoid­ed, and where the Purchasers are safe or not.

IT is provided by Stat. 13 Eliz. That the said Act (which enables the Com­missioners to sell the Bankrupts Lands) shall not extend to any Lands, Tenements or He­reditaments Free or Copyhold, which hereto­fore have been assured by any such Bank­rupt, or hereafter shall be assured by any Bankrupt, before he became a Bankrupt. So always that such assurance be made bonafide, and not to the use of the Bankrupt himself only, or of his Heirs; and that the [Page 109] Parties to whose such assurance hath, or shall be made, be not at or before the ma­king such assurance privy or consenting to the fraudulent purposes of any such Bank­rupt to deceive his Creditors.

And per Stat. 21 Jac. c. 19. It is pro­vided, That no Purchaser, for good and va­luable Consideration, shall be impeached by vertue of this Act, or any other Acts here­tofore made against Bankrupts, unless the Commission to prove him or her a Bankrupt, be sued forth against such Bankrupt within five years after he or she shall become a Bankrupt.

Any Sale of Lands and Goods by a Bankrupt before he comes in Debt, or before his Trading, is without question good; and so are all the Acts he doth be­fore he comes to appear to be a Bank­rupt, Marsh Rep. 34.

If one be a Merchant, and not in Debt, and he purchase for another, or give to another, and there be no fraud in it to deceive the Creditors, this is good, Marsh 32.

Sir John Harrison Merchant, seised of Lands and indebted to divers persons; on Action brought against him, he con­ceals himself, for which he was outlaw­ed, and An. 43 becomes a Bankrupt, An. 47 he acknowledgeth two Judgments to Andrews, and An. 1648 he makes a Lease to the Plaintiff; An. 1653 Commission [Page 101] issues out against him, and extends by Elegit 1650. the Plaintiff justifies as com­ing in under Valuable Consideration of 5000 l. Per Glyn he is a Bankrupt by the Outlawry; and also by the fraudulent Lease: But he shall be accounted a Bank­ruptTo be account­ed a Bankrupt from the first Act of Bank­rupcy. from the first Act of Bankrupcy, 2▪ Siderfin p. 115. Radford versus Blud­worth; and p. 176. the Question was, if the Plaintiff shall be assured by the Clause of 21 Jac. 19. as being a Pur­chaser on a Valuable Consideration, the Bankrupt having sold above five years before the Commission sued out; when the Commission of Bankrupts is­sues out the Creditors shall have all the benefit of all his Estate which he had Anno Dom. 1643. Excepting Purchasers for a Valuable Consideration: His being a Bankrupt after the Sale, that will not hinder Judgment for the Purchaser, 1 Keb. 11. Bradford and Bludworth.

A Man purchaseth Lands of one who is a Bankrupt, for a Good and Valuable Consideration; and a Commission is not taken out within five years; this Pur­chaser shall not be Impeached. But if one purchaseth Land for Good and Va­luable Consideration, before the Ven­dor becomes a Bankrupt, it's no questi­on but he is safe; and thus is this Clause to be understood.

[Page 111] J. H▪ a Bankrupt was committed two Months, An. 1651. and recommitted for another Act in 1657. then the Bank­rupt sells the Term for years, whereof he was possessed, to the Defendant, and in 1660 the Commissioners sold to the Plain­tiff. This Commission shall▪ not relateWhere it shall not relate to the first Act. to the first Act in 51. for the words of the Act are not, after he shall first be a Bankrupt; for then the earlier being a Bankrupt, would after five years be a perpetual Supersedeas to all Tradesmen. But if one hath sold, and then five years pass without any Act of Bankrupcy, the Purchaser is safe, and no after-Act can hurt him. But where the Bankrupt conti­nues in Possession, any after-Act is suffici­ent to bind the Term, 16 Car. 2. Spencer and Vanacre.

A Merchant sells Land bona fide to J. S.Monstra l [...] Faits. and after becomes a Bankrupt, J. S. may choose to shew his Evidences.

Concerning the Sale of Copyhold Lands.

YOU may see in the recital of the Stat. 13 Eliz. c. 7. that Copyhold Lands are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record (as other the Bank­rupts Lands) but by the same Statute it is provided, That all persons to whom any such Sale shall be made, shall before such time [Page 112] as they shall enter or take any profits of the same, agree and compound with the Lord of Mannor, of whom the same shall be hol­den, for such Fines or Incomes as heretofore Fines. hath been most usual and accustomed to be yielded or paid therefore: And upon every such composition, the Lord for the time be­ing, at the next Court to be holden at, or for the said Mannor, shall not only grant to such Vendee upon request, the same Copy or Customary Lands or Tenements by Copy of Court-Roll of the said Mannors for such Estate or Interest as to them shall be sold, and reserving the ancient Rents, Customs, and Services; but also in the same Court, admit them Tenants of the same Copy or Admittance. Customary Lands, as other Copyholders of the same Mannor have been wont to be admitted, and to receive their Fealty ac­cordingly.

Copyhold Lands are within all the Sta­tutes of Bankrupcy, Croke, Car. 550. Crisp and Platt.

Title to a Copyhold cannot be madeTitle to a Co­pyhold, how to be made by Commissioners. by the Commissioners without surrender or admittance, 1 Keb. 24. Croke Car. 596.

It is adjudged in Croke Car. 569. inThe Estate vested before admittance. Parker and Bleeks Case, that by Bargain and Sale, made by the Commissioners of Bankrupcy, the Estate of the Copyhol­der is vested in the Bargainee before ad­mittance, tho' he may not enter and take the Profits till admittance: The [Page 113] Bargain and Sale binds the Copyholder and bars his Estate, and he is no Copy­holder after the Bargain and Sale en­rolled: And when the Bargainee is ad­mitted by the Lord, it shall have relati­on to the Bargain and Sale; and the Co­pyholder dying, his Wife shall be bar'd of her Widows Estate.

A Bankrupt purchaseth a Copyhold, and the Tenant surrenders into two Te­nants Hands to the use of the Bankrupt, and now he will not be admitted. Mr. Stone makes some Quere if this may be sold by the Commissioners, but he con­ceives they may; and the Vendee may pay the admittance.

Tenant by Copy is disseised, and the Disseisor is admitted Tenant by the Lord. The Lord Bargains and Sells the Man­nor to J. S. in Fee: Disseisee becomes a Bankrupt, the Commissioners may sell the Copyhold, and the Vendee shall com­pound with the Bargainor, Stone 142.

CHAP. IX.

Of the disposal of the Personal Estate, or Goods of the Bankrupt: How and where the Goods of a Bankrupt, liable to Execution may be sold by the Commissioners, and where not: Of Trusts, and Bonds taken in the Bankrupts Name, with several Cases and Resolutions.

PER Stat. 13 Eliz. c. 7. The Com­missioners have Power to take such Order and Directions by their Dis­cretions, with the Bankrupts Mony, Goods, Chattels, Wares, Merchandises and Debts, wheresoever they may be found or known, and cause the said Goods, Chattels, Wares Merchandises and Debts to be searched, viewed and appraised to the best value they may, and by Deed Indented and Inrolled, &c. to make sale of them, or otherwise to order the same for true satisfaction and pay­ment of the said Creditors.

And by another Clause in the said Statute, The Commissioners have power to sell all the Goods and Chattels that the Bankrupt shall purchase, after he became Purchase. Bankrupt, and all such Goods and Chattels that shall any wise come to him before such time that the Debts due to the Creditors [Page 115] are fully satisfied and and paid, or otherwise agreed for.

Per Stat. 1 Jac. c. 15. Leases, Goods, Trusts▪ 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 of years of Consent, or some Valuable Consideration, Debts transfer­red in other Mens Names. or transfer his Debts into other Mens Names, shall be by the Commissioners Bar­gained, Sold, Granted, Demised or otherwise Disposed of, in as ample manner, as if the said Bankrupt had been actually seised or possessed thereof, or the Debts were in his own Name of the like Estate or Interest to his or their own use, at such time as he or she became a Bankrupt; and that every such Bargain, Sale and Disposition of the Com­missioners shall be good and available to all Intents, Constructions and Purposes in the Law against the Offender or Offenders, his Heirs, Executros, Administrators and As­signs, and such Children and Persons as shall be subject to this Statute, and against all other person and persons, claiming by, from, or under such Offender or Offenders; and such said other persons to whom such Con­veyance shall be made by the said Bank­rupt, or by his means or procurement.

[Page 116]Per Stat. 21 Jac. c. 19. If it happen any Lands, &c. Good, Chattels, Debts, or other Estate of any Bankrupt to be extended after Extent. such time as he or she became a Bankrupt, by any person or persons, under colour or pre­tence of his or their being Accountant, or any ways indebted to the Kings Majesty; then shall the Commissioners examin upon Oath, whether the said Debt were due to such Debtor or Accountant, upon any Bar­gain Kings Accoun­tant. or Contract originally made between such Accountant 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, then the said Debtor or Accountant; or for the Use or Trust of any other person or persons, then the said Commissioners shall dispose of such Lands, &c. Goods and Chattels, &c. to, and for the use of the Creditors; and that the Order and Disposition of the said Commissioners shall be good against the said Extent; and the Bargainees shall have good Remedy, to have, demand and recover the same against such person or persons as shall detain the same.

And by the said Statute of 21 Jac. c. 19. For that it often falls out, that many persons before they become Bankrupts, do convey their Goods to other Men, upon good Consideration, Goods transfer­red, and yet ownership kept on foot. yet still do keep the same, and are reputed the owners thereof, and dispose the same as [Page 117] their own: It is Enacted, That if at any time hereafter, 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 owner and proprietor, have in their possession, order and disposition, any Goods or Chattels, where­of they shall be reputed owners, and take upon them the Sale, Alteration or Dispositi­on as Owners, that in every such Case, the said Commissioners or the greater part of them, shall have Power to Sell and Dispose the same, to, and for the benefit of the Creditors, as fully as any other part of the Bankrupts Estate: And for the better payment of Debts, and discouraging men to become Bankrupts, per the same Statute, If the Bankrupt shall grant any Mortgage, Pawns. Goods, Chattels or Estate unto any person or persons, on condition or power of Redemption at a day to come, then the Commissioners shall assign some person to make tender or payment of the Mony, or other Performance, according to the Nature of the Condition, as fully as the Bankrupt might have done: And after such tender or Payment, shall sell the said Goods and Chattels so conveyed or granted, &c. Vide this Paragraph at large supra.

So that you see the Commissioners have Power to Sell or Dispose the Bank­rupts Personal Estate, which he had, and was possessed of at the time of his be­coming a Bankrupt; and also all such [Page 118] Goods and Chattels which the Bankrupt shall purchase, or which shall come and accrue to him after he became a Bank­rupt.

Observe, They must be searched, view­ed and appraised.

Sale of Goods by a Bankrupt, after Commission awarded, is void, albeit the Commissioners be never seised of the Goods, Moore Case 805. Smith and Mills.

This Statute saith, Sale by Commissi­onersDeed Indented. View. must be by Deed Indented, and that after view of the Goods; yet a Sale by any other Deed, and before the view, is good, 2 Rep. 26. The Case of Bank­rupts.

The Goods of the Bankrupt lie liable to the Sale of the Commissioners, not­withstanding the Bankrupt had sold them in Market Overt, this Sale is avoided byGoods sold in Market overt. relation, Siderfin. p. 272. 2 Keb. 33. in Baly and Bunnings Case.

How, and where the Goods of a Bankrupt, liable to Execution, may be sold by Com­missioners, and how, and where not.

ABecomes a Bankrupt after an Ex­tent, and before a Liberate, and the Commissioners sell these Goods to Creditors, Per Cur' they cannot be sold, Croke Car. 106, 149. Audly and Halsey.

[Page 119]This Case is well reported by Mr. Ju­stice Jones, Rep. 202. Tho' the words of the Statute are, That the Commissioners have Power to sell the Goods which were his at the time that he became a Bankrupt, and altho' he becomes a Bank­rupt before the Liberate; and altho' the Property remains in the Conusor, un­til the delivery by the Liberate; yet the Extent had bound the Goods so, that when the Liberate comes it defeats this, and devests the property of the Goods out of the Conusor, as to any mean Action or Incumbrance from the time of the Extent.

The Goods extended before he be­comes a Bankrupt, and delivered by the Liberate after he became Bankrupt, can­not be sold, 2 Siderfin. 115. they are in Custodia Legis.

Execution was sued by Ca. Sa. the Mo­ny levied, and in the Sheriffs hands, and the man became a Bankrupt Per Curiam; the Mony recovered in the Sheriffs hands was not assignable by the Commissioners to the Creditors; for it was quasi in Custodia Legis. The Case was thus, B. and his Wife brought an Action on the Case, for words spoken of the Wife; up­on not guilty pleaded, and Verdict for the Plaintiff, and 5 l. Damages assessed, and 7 l. Costs, they sue Execution; and after the Mony was levied by the Sheriff, and before the return of the Writ the [Page 120] Plaintiff became a Bankrupt; and by the Commissioners of Bankrupts, the said 12 l. so recovered, was assigned by the Name of the Money of B. to Blackwell and o­ther Creditors: The Sheriff brings the Money into Court; the Plaintiff who recovered, prayed to have the Mony delivered to him out of Court; and the said Blackwell and the Creditors pray that the Mony may be delivered to them, according to the Sale and Assign­ment of the Commissioners: Per Curiam, the Mony in the Sheriffs hand was not assignable, tho' by the Judgment the Damages and Costs were ascertained and turned in Rem Judicatam; for it cannot be said to be the Bankrupts Mony, until it be paid to him; and in the mean time it is in the hands of the Sheriff, and in Custodia Legis: And this Case is the stronger, because it is upon a Ca. Sa. and the Mony paid to the Sheriff to satis­fie the Enecution; and none may give a Discharge thereof, but the Plaintiff who is party to the Record, and the Assignees are Strangers to the Record; and as they cannot have the benefit thereof, so they cannot acknowledge sa­tisfaction, Croke Car. 166, 176. Benson and Flower, and Jones, 215.

M. recovered against E. one hundred pounds; the Sheriffs Bayliff takes the Goods upon F [...]. Fa. Teste 4 Junii. 6 June He whose Goods they were, becomes a [Page 121] Bankrupt. Commission of Bankrupcy was taken out the 8th of June, the Fi. Fa. was made the 11th of June, and execu­ted on the Goods the 17th of June. The Plaintiff, as Assignee of the Commissio­ners, brings Trover: Per Cur. for the De­fendant upon Special Verdict, and that the Goods were liable from the time ofFrom what time the Goods liable to Ex­ecution. the Teste of the Fi. Fa. and this shall be said Emanatio Brevis; and the Sheriff cannot divine when a Commission will be taken out, 2 Keb. 33. Bayly and Bun­ning, Siderfin. p. 271. Mesme Case. Per Siderfin, the Goods are liable to Executi­on from the time of the Teste of the Fi. Fa. and the practice is, that the Bayliff is found guilty, if the party were then a Bankrupt; per Keb. in this Case, the Court agreed a right in the Creditors by the Act of Bankrupcy, and thereby the Goods are bound, tho' the Creditors have no Action till Assignment, Vide Stat. Stat▪ of Frauds and Perjuries. of Frauds and Perjuries, that the proper­ty of the Goods shall be bound only from the time that such Writ shall be delivered to the Sheriff.

A man brought an Action of Debt on a Bond, and had a Verdict, and before the day in Bank became a Bankrupt; it was moved, that the Debt was assigned over, and prayed to have the Mony brought into the Court, which the Court refused, and adjudged, that Judgment could not be staied, the Assignee of the [Page 122] Bankrupt being a Stranger, in Com. B. Mod. Rep. cited in Moncks Case, p. 93, and in 3 Keb. p. 1.

On motion for G. Assignee of Com­missioners to stop having Mony out of Court, the Plaintiff being a Bankrupt since the Judgment; but the Judgment being affirmed before the day of the Commission sued out, the Mony was or­dered to be delivered to the Plaintiff, no execution being sued out, unless a Speci­al Sci. Fac. and per Twisden, How can weS [...]ii [...] Fac. take notice that he is a Bankrupt? Any execution may be stopped at that rate, by alledging, that there is a Commissi­on of Bankrupts out against the Plaintiff. If he be a Bankrupt you must take out a Special Sci. Fac. and try the matter, whether he be a Bankrupt or not, which the Court granted; he may bring a Spe­cial Sci. Fac. as Assignee, or Det on the Judgment, 3 Keb. p. 1. Mod. Rep. 93.

Suppose after Judgment, and before Execution, one becomes a Bankrupt, and the Creditors assign this; and after the Judgment is reversed, quaere who shall make Restitution? I conceive the Cre­ditorsRestitution. are not compellable, not being Parties to the Record.

In the Case in Dier 67. Stringfellows Case, Tho' the Goods were extended, yet they were not delivered to the Co­nusee, and the Writ was not returned; and the Writ of Priviledge was for Debt [Page 123] due to the King, wherein the King hath his Prerogative by the Common Law; and so it differs from Audly and Halseys Case, Croke Car. 148.

The Statute is where an Execution or Extent is served or executed: Per Cur. this is accounted the executing of an Extent, when the Goods be apprised, and the Writ returned, Croke Car. 150. Audly and Halsey, Vide Stat. Frauds and Perju­ries. So by these Cases, this Vexata Quae­stio is well setled.

If the Bankrupt convey his Goods, Leases, Chattels to any of his Children or other Person, such Leases, Goods andLeases and Goods convey­ed by the Bankrupt. Chattels shall be sold by such Commis­sioners, except in two Cases.

1. What shall be conveyed to any of his Children upon Marriage. Or,

2. Upon some Valuable Considera­tion.

The Statute 21 Jac. Provides, that Goods Attached by Foreign Attachment shall be sold by Commissioners, which proves, that after the Statute 13 Eliz. until the Statute 21 Jac. the Commissi­oners had no power to meddle with Goods taken upon a Foreign Attachment, yet they are but a pledge to draw the party to answer; and if he appear, theForeign Attach­ment. Foreign Attachment is discharged. And therefore before the Statute 21 Jac. If Goods were attached by Foreign At­tachment in London, and before Reco­very, [Page 124] the party becomes a Bankrupt, and after Recovery is had, this should avoid the Sale by the Commissioners; there­fore to remedy that, the Special Proviso is added in Stat. 21 Jac. that in this Case the Goods shall be in the possession of the Vendee as the Goods of the Bank­rupt,Seis [...] p [...] She­riff. unless the Goods were seised by the Sheriff before the Party became a Bank­rupt, tho' they were seised before the Teste of the Commission, yet the Goods are bound by the Bankrupcy, 3 Keb. 480. Bingly and Warcup.

As to Goods Extended after such timeOf Goods Ex­tended on pre­tence of Ac­count to the King. as he shall become a Bankrupt, by such as pretend to be Accountants, or indeb­ted to the King, the Statute directs the Commissioners to examin upon Oath, whe­ther the said Debt were due to the Accoun­tant upon any Bargain or Contract originally made between the Accountant and the Bank­rupt, and his and their Servants: And if it appear the said Contract was originally made with any other person than the Accoun­tant, or for the use and trust of any other person, then the Commissioners shall Sell such Goods, and their Assignee shall have good Remedy to recover the same: So that if it appear the Original Contract (before he became a Bankrupt) was made between the Accountant and Bankrupt, bona fide, the Extent shall be good, and the Estate shall not be sold by the Commissioners.

[Page 125]As for what Remedy the Assignee shall have against those that shall detain such Goods, it may be by Trover, &c. the same as the Bankrupt might have had, Vide infra.

Trust. Of other mens Goods, of which the Bank­rupt is in possession, and reputed Owner: Or Bonds take in his name.

THO' the Bankrupt (before he is a Bankrupt) convey his Goods to other men upon good Consideration, yet if he keep the same, and is reputed Owner thereof, and disposeth of the same as his own, such Goods shall be sold by the Commissioners, and according­ly hath it been resolved: If one shall to the intent to support the Credit of a Bank­rupt, suffer him to have his Goods in his Custody, and to dispose of them; this shall be accounted the Goods of the Bank­rupt, and not of the Owner, Stiles Re­gister, 48, 49.

In Debt on Bond the Defendant plead­ed,Bond in the Bankrupts name. that the Obligation was made to the Plaintiff, to the use of him and other Creditors of O. and that one of the o­thers releast; it is an ill Plea, he being a Stranger, and the matter but Equity, 2 Keb. 333. Ward and Ossler.

Bonds.

R. indebted to S. and B. jointly; S. becomes a Bankrupt, and the Com­missioners assign this Obligation to B. the Assignee must have the same Remedy as the Bankrupt had; therefore this or none, 1 Keb. 167. Bolston and Ratcliff.

If J. be obliged to J. S. and he beforeBond Assigned. Bankrupcy assign the Bond, this is liable to the after-bankrupcy of J. S. being on­ly suable in his name, 2 Keb. 331. Back­well and Littcott.

One becomes indebted to a Bankrupt, and he and the Bankrupt became bound for this Mony to L. in Trust for the Bankrupt; a Commission issues, and this Debt is assigned to the Creditor, and good; the Bond being to his use, Vide plus infra, Gerard and Aylmores Case.

Of Goods Pawned.

IF the Bankrupt have conveyed away his Goods upon Redemption, then the Commissioners may assign some per­son to tender or pay the Mony at the day; and after such tender or payment shall sell the same.

Disposition of Rent.

A Rent-seck, tho' there have been no seisure, shall be sold; Commissio­ners sell a Rent or Reversion, it may be good without Attornment; it vests by the Statute.

A. makes a Gift in Tail, rendring Rent to him and his Heirs, and dies, the Rent is Arear. B. Disseisor enters and le­vies a Fine, and five years pass; the Heir of A. is a Bankrupt, who was to receive the Rent: Now this Rent, and the Ar­rrears may be sold by the Commissio­ners. Vide infra.

CHAP. X.

Of the Disposition and Assignment of the Bankrupts Debts; and what Assignment made by the Commssioners shall be good, and what not.

PER Stat. 13 Eliz. c. 7. The Com­missioners are Impowred to Sell and Assign Debts due to the Bankrupt. And,

Per 1 Jac. c. 15. If the Bankrupt trans­fer his Debts in other Mens Names, they shall by the Commissioners be disposed of in as ample manner as if the Debt [...] were in his own Name.

As to Mony Recoverd, Vide prius.

The words of the Statute of 1 Jac. c. 15. that fully enable the Commissioners to dispose of the Bankrupts Debts, are; Be it Enacted by the Authority aforesaid, That the Commissioners of Bankrupts shall have Power to Grant and Assign, or other­wise to Order and Dispose all, or any of the Debts due to, and for the benefit of the▪ said Bankrupt, by what person or persons soever, or in what manner and form soever, to the use of the Creditors of the said Bankrupt, &c. and that the same Grant; Assignment▪ or Disposition of the said Debts▪ in form [Page 129] aforesaid, to be made by the said Commissi­oners, 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, Assigned or Ordered by the said Commissioners or the major part of them, as fully to all intents and purposes, as if the said Bill, Bond, Bonds, Statutes, Recognisances, Judgments or Contract, where­upon the said Debt or Debts shall arise or grow, had been made to, or with, or for the said person or persons, to whom the same shall be so Granted, Assigned or Disposed by the said Commissioners; and that after such Grant, Assignment or Disposition made of the said Debts, that 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 there­of; neither shall the same be Attached as the Debt of the Bankrupt, or such said other person or persons, according to the Custom Foreign At­tachment. of the City of London, or otherwise; but that the Assignees shall have like power 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, &c. by the Commissioners in all respects, as the Party might have had, any Law, Statute, Custom, &c. to the contrary not­withstanding.

[Page 130]There is a Right in the Creditors by the Act of Bankrupcy, and thereby the Goods are bound, tho' the Creditors have no Action till Assignment, 2 Keb. 33. Bayly and Bunning, Siderfin, p. 271.

If a Bankrupt be indebted to one 20 l. and to another 10 l. and he hath a Debt due to him by Bond of 20 l. now the Commissioners may Assign and DivideDividing a Debt. this (viz.) to every Creditor a portion, part and part-like; and it seems in this Case the Assignees may sue severally for it, Godb. 195. See Bradshawes Case.

J. S. is obliged to J. B. and he beforeObligee before Bankrupcy as­signs the Bond. Bankrupcy assigns the Bond, this is liable to the after-bankrupcy of J. S. being on­ly suable in his Name, 2 Keb. 331. Back­wells Case.

If the Goods of the Bankrupt come toWhere the Commissioners have power of the Mony only, on the Sale of Goods. the hands of A. and be sold to B. the Commissioners have power only of the Mony; but on Sale to A. by the Bank­rupt, the Commissioners may elect to have Mony or Goods, 2 Keb. 348. Mi­cons Case.

If an Obligation before day of Pay­mentObligation as­signed before day of payment. be assigned by Commissioners of Bankrupts to a Creditor, altho' the Obli­gation after becomes forfeit, the Bank­rupt shall never after take advantage by this; for all is become a Debt to the Creditor, Siderfin, p. 327. in the Case of Robbins and Standard; and this disposi­tion made by the Commissioners saves [Page 131] the forfeiture of the Obligation, 2 Keb. 202.

If a Bond be taken in the Name ofBond taken in ones Name to the use of the Bankrupt, may be sold. another to the use of the Bankrupt, the Commissioners may assign that, Noy, 142.

In Debt the Plaintiff shews the Statute of 13 Eliz. and 21 Jac. c. 5. of Bank­rupts, and shews how E. C. 10 Jac. be­came a Bankrupt, and then was indebted to the Plaintiff, and that in 22 Jac. the Defendant becomes bound to one L. in a certain sum, which he avers was to the use of E. C. aforesaid; and upon Special Pleadings the Case was this. One be­comesBankrupt and his Debtor bound to L. in trust for the Bankrupt, Ex­ecutor of L. re­leaseth; yet this Debt as­signable. indebted to a Bankrupt, and he and the Bankrupt became bound for this Mony to L. in trust for the Bankrupt; a Commission of Bankrupcy issues, and this Debt is assigned to the Creditor, and the Obligee dies, and his Executor releaseth the Debt, and the Creditor brought an Action of Debt, Per Cur. it lies: For the In­terest of the Debt is transferred to the Cre­ditor per Stat. 21 Jac. the Bond being to his use, and for this the Release is no Bar: So it makes nothing that the Bankrupt himself was bound, for the Bond was in trust for him, and Judgment accordant, Palmers Rep. 505. Gerrard and Aylmer.

A Man recovers Damages in an Acti­onDamages. on the Case for words, and becomes a Bankrupt, per Cur. after Judgment when this is reduced to a Certainty, it [Page 132] may be assigned: But the Case went fur­ther. The Plaintiff takes Execution for the Damages, and the Sheriff received the Mony of the Defendant; it cannot be assigned so long as it lies in the Sheriffs hands, not till he receive it, Jones Rep. 215. Benson and Flower, Vide this Case devant.

Debt upon a Simple Contract may beDebt on Simple Contract. Assignees Re­medy for Debts of the Bank­rupt. assigned over to the Creditor, but the As­signee shall have no other Remedy than the Debtee himself had; and this is by Action of Debt, or Action on the Case. For if the Debtor become Bankrupt, and die, the Assignee shall not have an Action of Debt against the Executor, but he may have an Action on the Case. The Statute doth not alter the Course of the Law for Recovery of this in other nature, than the Law before allowed, and doth not give more advantage to the Assignee than the Principal Creditor had, p. 6. Car. 1. Morgan and Green.

There is a Proviso in 1 Jac. c. 15. That no Debtor of the Bankrupt shall be thereby endangered for the payment of his Debt truly, and Bona Fide, to any such Bankrupt, before such time as he shall understand and know that he is be­come a Bankrupt.

Per Hales & Tot. Curiam, Payment byO [...] Payment before notice, or Commission sued. a Debtor of a Bankrupt to himself or to his Creditor before notice of the Bankrupcy, and before the Com­mission [Page 133] sued forth, is a discharge a­gainst the Commissioners or their Assignee. Quaere of the payment after the Teste of the Commission, and before notice, 3 Keb. 190. Grove and Smith.

A Debt assigned before a Commission sued out, was ruled good, in Yardly and Knights Case.

Payment to a Bankrupt after notice is void; but if there is no notice, or if the Party be compelled to pay the Suit before any Commission sued out, it' a good discharge. Ancient­ly, till Commission sued out, the Debtor ought not to repay, tho' he had notice of Bankrupcy, M. 25. Car. 2. B. R. Prin and Beal; and Stooer and Hastings Case, 3 Keb. 298. payment before a Commission sued out is good enough, Andrews and Spicers Case.

What Goods, or other Estate of the Bank­rupt may be sold and assigned by them, Vide supra.

THE Commissioners may assign Debts in Trust, Noy 142. Calch­mans Case, Vide supra.

The Commissioners here may sell a Bankrupts Goods in Ireland, and Irish­menIreland. may sue the Commission.

[Page 134]They may assign a Judgment, 2▪ Keb. 706, Eclor and Jacobson.

Leases disposed by the Commissioners.

IT is made a Quaere in Mr. Stone, if aProviso not to sell. Lease for years is made with a provi­so, he shall not alien, and the Commissi­oners sell; whether this be a forfeiture? I hold it is not; for the Act of Parlia­ment which empowers them to sell to pay Debts, shall not be controled by such an inofficious proviso.

A Lease for years is devised to A. if he live so long, the Remainder to one B. the Commissioners shall not sell the pos­sibility, Vide supra.

Advowsons, Presentations.

A Bankrupt hath an Advowson, and the Church becomes void, the Commissioners sell the Advowson, the Vendee presents, the sale is good, but the presentation not; yet I think it is not Symony.Symony.

One grants an Advowson to a Feme Covert, sole Merchant, the Church be­comes void; the Husband in considerati­on that J. S. enters into Bond to Preach twice a Week, presents him to the Bene­fice: The Feme becomes a Bankrupt, [Page 135] the Husband dies, the Feme waves the the Grant, the Commissioners within six Months sell the Presentation and the Ad­vowson, this is a good Sale of the Advow­son, but the King shall present.

Common.

A▪ Had Common for a Cow in Pa­sture to him and his Wife, and to the Heirs of their two Bodies begot­ten; A. the Husband grants the Com­mon to E. the Wife dies without Issue, E. is a Bankrupt; this is neither Land, Tenemnet nor Hereditament which may be sold by the Commissioners, Stone p. 123.

Rents, Vide supra. Herriots, Reliefs.

LORD and Tenant; the Lord is a Bankrupt, the Tenant dies, the Commissioners shall sell the Mony or Debt due for the Relief: So of an Harri­ot: So of the amerciaments of a Lee [...]

What Assignment by the Commssioners shall be good, and what not.

THE Commissioners may assign Mo­ny to one, and Corn to another of the Creditors, 2 Bulst. 26. But,

They may not make an Assignment to many Creditors together for their Debts, but it must be severally, to every one a-part, or it is not good, Godb. 195, 196. the Commissioners may assign a Debt due to the Bankrupt to one of his Creditors for the payment of his Debt, but may not divide it and assign it more than one. lbid.

But the constant course and practice is to make an Assignment to one or more Creditors in Trust for themselves and the other Creditors.

R. is indebted to S. and B. jointly; S.One Jont obli­gee becomes a Bankrupt. becomes a Bankrupt, and the Commissio­ners assign this Obligation to B. 1 Keb. 167. Boylstons Case.

The Assignment is a sufficient bar a­gainst the Parties, tho' it appear not what was proportionable, 1 Keb. 491.

The Plaintiff in Audita Querela count­ed that Sir H. B. to whom he was in­debted, became a Bankrupt, and that certain Creditors had his Debt assignedOne of Credi­tors Assignces accepted a part of his Debt. to them; and that one of them accepted part of his Debt in satisfaction of the [Page 137] whole. The Defendant demurs, because he had not shewed what were the Debts of the Creditors, that so his payment might appear proportionable to the Debts; but per Cur. it's well enough, especially being an Action brought by one that is a Debtor; and the very Assignment is a sufficient bar against the Parties; and if there be any Surplusage, the DefendantSurplusage. hath remedy in Chancery, 1 Keb. 491. Fitzwilliams against Lewis.

If the Plaintiff had been indebted in as great a sum as the Bankrupt had been indebted to him, and yet his Debt as­signed, this Assignment had not been good; but this Debt was here assigned inter alia, and so other Debts to be in­tended; and this may be good. The De­fendant here ought to have demanded Oyer of the Indenture, and of the Sche­dule to the same annexed, in which the several Debts are contained. If thereUncore, vide Stiles▪ [...]. be more in this than his proper Debt, then the Assignment is not good; but the same being here with an (inter alia) this is good and sufficient, 2 Bulst. 26. Powell vers. Stuff and Timewell.

Declaration.

IN an Action on the Case, the Plain­tiff Declares, That the Defendant was indebted to one Gode in the Sum of 43 l. 1 s. for, &c. And being so indebt­ed, promised to pay him; which Gode was indebted to the Plaintiff, and became Bankrupt; whereupon a Commission was sued out, and the Commissioners assign debita p̄d Gode in quadam Schedula continen p̄d summam 43 l. 1 s. to the Plaintiff, &c. Defendant pleads he made no such Promise to Gode. And by Spe­cialA different sum assigned. Verdict it was found that the De­fendant was indebted to Gode but in 41 l. [...] s. which he promised to pay; and that the Commissioners assigned debita p̄d Gode menc̄onat in quadam Sche­dula continen p̄d summam 43 l. 1 s. to the Plaintiff: And if this be the same Promise that the Plaintiff hath declared upon, they find for the Plaintiff. It was said, that upon the whole Record it ap­pears, that the Plaintiff hath not made a good Title to his Action, for he hath al­ledged the Assignment to be of a Debt of 43 l. 1 s. whereas the Debt was but 41 l. 1 s. And this being an entire thing, will not pass by the Assignment of a greater Sum: But it was resolved,

[Page 139]1. That it was the same Promise; for if Gode himself had brought the Action, he should have recovered upon this Ver­dict, and the Assignment by the Com­missioners vests the Debt in the Plaintiff, and he hath the same Remedy to reco­ver that the Brankrupt had. And,

2. The Assignment is not in question, and that which they found touching the Assignment is not material; however the Assignment is not laid to be of such a Sum, as by that name, for then the Court inclined to believe it would not have been good, Allen Rep. p. 28. Baker and Edmonds.

The Commissioners of Bankrupts have power to Sell, Grant and Assign, but they cannot bring an Action; their As­signees must bring all Actions, Mod. Rep. p. 30. But per Twisden, Commissioners of Bankrupts might have an Action of Trover, if they did actually seise any Goods of the Bankrupt, as they might by Law.

It is dangerous for Commissioners of Bankrupts to Assign Debts particularly; as in Baker and Edmonds Case.

One that is a Bankrupt is felo de se. Mr. Stone puts the Question, whether the Commissioners may assign the Goods to be sold for the Creditors, or whe­therWhether the King shall be preferred before a Subject. the King shall have them? And re­solved it for the Creditors. For, saith he, very well; tho' it is resolved in the [Page 140] Lady Hales Case in Plowden, that when two Titles come together (viz.) the Kings and a Subject, the Kings title shall be preferred; yet the King by these Acts hath given away his Title to the Credi­tors. And yet in my Opinion this may admit a Dispute; the Judges never con­struing an Act of Parliament to give away the Kings Right, but wherein he is mentioned; and so is the Opinion in Jones Rep. 203. as to this Statute.

The like Case is, A Bankrupt hath a Term, and is a Recusant convict▪ Whe­ther the King or the Creditors shall have the Term?

So; Whether the Creditors by the Commission, shall have the Goods of an outlaw'd person, or the King.

A pain of 10 l. is laid upon a Resiant toA Debt for an Amerciament in a L [...]t. reform a publick Nusance made by him before such a day, and at next Court he is presented: The Lord becomes a Bank­rupt, the Commissioners sell all the Debts of the Bankrupt to A. A. shall have Acti­on of Debt for this Amerciament, Stone p. 149.

A. sues an Execution of a Statute Mer­chant, and the Conisors Land is Extend­ed at too high a rate, and refused by the Extendor, and delivered to the Jurors, B. defeats the Execution by extending an elder Statute. A. is a Bankrupt, the Commis­sioners sell all his Debts, the elder Statute is satisfied, and the Jurors will not enter, [Page 141] the Vendee shall have a Sci. Fa. againstSci. Fa. to re­vive a former Execution by Vendee. the Tenant by the elder Statute, and the Terrtenants, and the Jurors to revive the former Execution, Stone p. 149.

Two Tenants in Common recover Damages in Trespass; the one dies, the other is a Bankrupt; all the DamagesDamages. shall be sold by the Commissioners.

A Bankrupt recovers Damages by anDamages As­signed, and then the Judg­ment reversed. erroneous Judgment, the Commissioners assign them to the Creditors, who re­cover them in Execution; the Judg­ment is Reversed; the sale is good, but the Assignees shall make restitution, Vide [...] Keble.

CHAP. XI.

Of Actions brought by the Assignee: Of the Commissioners for the Recovery of Debts, or Goods of the Bankrupt: Of Declarations thereupon: Of Acti­ons brought by the Bankrupt him­self; and the Forms of Declarati­ons at large.

DEBTS were assigned by the Commissioners to the Creditors, and they sued Actions in their own Names for the Debts, and good, 2 Croke 105. Bradshaws Case.

They shall have the same Redemedy as the Bankrupt himself might have had, 1 Keb. 167. The Statute doth not alter the Course of the Law for Recovery of this in another nature than the Law before allowed, and doth not give more advantage to the Assignee, than the Prin­cipal Creditors had, Pasch. 6. Car. 1. Mor­gan and Green.

Action on the Case, for an Escape of a Committe of the Commissioners of Bank­rupts against the Sheriff of Bristol. The Commissioners put him into Goal for refusing to answer Interrogatories, Vide supra, Cap. 5.

Assignee shall have Debt on a Bond: Tro­ver, Det on Contract; Indeb. Assump­sit: Action on the Case, &c. and other Remedies as the Bankrupt might have.

ASsignee shall have Trover. If the Goods of the Bankrupt come to the hands of A. and be sold by B. no Trover lieth for the Mony or Goods,Trover▪ Commissioners power of the Mony, and not Goods sold. but the Commissioners have only power of the Mony. But on the Sale to A. by the Bankrupt, the Commissioners may elect to have Mony or Goods, 2 Keb. 348. Micons Case.

Trover lies of Conversion between the Bankrupcy and Assignment: It was held no Trover lay, but on specially shewing the Bailment before and Conversion Mean; yet it hath been held to lie ge­nerally, 3 Keb. 294. Wellempton and Danby.

In Debt by an Assignee of Com­missioners of Bankrupts, the Defendant waged his Law Instanter, the Debt beingWager of Law. on single Contract between the Defen­dant, and E. the Bankrupt, 2 Keb. 360. Puckridge and Brown; Siderfin, p. 372. Mesme Case, 3 Keb. 337.

An Action on the Case on Indebitatus, Assumpsit to pay Debt assigned by the Commissioners of Bankrupts, 3 Keb. 625. Coply and Dockmanque.

[Page 144]In Assignment of Debts by the Com­missioners, there is nothing but a naked thing in Action transferred, and no Estate or Reversion to which it may be annexed, and therefore Privity of Con­tractWhat kind of Privity is trans­ferred. must be transferred, or otherwise no­thing shall be transferred: But if a man seised in Fee, makes a Lease for years, reserving Rent, and after he becomes a Bankrupt, and the Commissioners of Bank­rupts assign over the Reversion and theRent. Rent, there the Assignee shall have an Action of Debt upon the Privity of the Estate, and not upon Privity of the Con­tract, 1 Sanders 240. Thursby and Platt.

Action of Trover lieth by the Assignee of one Partner a Bankrupt, against the other, 2 Keb. 750. Thomas and Day.

Of Actions brought by the Bankrupt himself.

IN Trespass by a Bankrupt against a Stranger, he cannot plead the Plain­tiff hath done such an Act to make him a Bankrup, 2 Keb. 32.

The Plaintiff may have Trespass or Co­venant, &c. where the Damages are un­certain, but any Debt certain is assignable.Debt certain.

Indebitatus by the Plaintiff, being a Bankrupt, the Defendant prayed to be discharged on Common Bail, in regard the Debts are assigned, and so the Com­missioners [Page 145] must bring the Action; and this Assignment may be given in Evi­dence; the Court discharged him upon reasonable Bail (viz. of 100 l.) the Debt being 1500 l. 1 Keb. 372. Holt and Scasgrogy.

Of Declarations by Assignees of Commissio­ners of Bankrupt.

NO place of Assignment by Commis­sionersPlace of Assign­ment. is alledged, per Curiam its ill, 3 Keb. 345. Copleys Case.

In Action of Debt brought upon the Statute of Bankrupts, the Plaintiff laies in his Declaration the Debt due to him, & quod vigore Statuti p̄dicti Actio ac­crevit. Per Cur. the Plaintiff ought notPlaintiff need not mention the several Credi­tors, but only his own Debt due to him. in his Declaration to mention his seve­ral Creditors; but this ought to come on the other side, to set forth that there were no other Goods but those which are named, and there were other Creditors, but the Plaintiff is not to set forth this in his Declaration, it being sufficient for him only to set forth his own debt due to him, and that virtute cujꝰ Actio ac­crevit.

It was excepted to the Declaration, that it is uncertain, because it is not ex­prest upon what Statute the Action is brought, but per Curiam it is good; forVigore Stat▪ prea [...], how to be referred. these words in the Declaration (vigore Statuti p̄dicti Actio Accrevit) shall be [Page 146] referred unto the Statute which gives the Action unto the Creditor upon the Assign­ment by the Commissioners, and this is only the Statute 1 Jac. c. 15. These are general Statutes, and therefore notice must be taken of them, 2 Bulst. 26. Powell versus Stuff and Timewell.

Det on Obligation assigned by theMonstre del Ob­ligation. Commissioners, and doth not shew the Obligation; wherefore it was demurred▪ Per Cur. it's good enough, whithout shew­ing it in Court; because he comes in by Act in Law, and hath no means to obtain the Obligation, Croke Car. p. 209. Gray and Feilder.

Divers Debts were assigned to the Plantists, being Creditors, by the Com­missioners, upon the Statute 13 Eliz. of Bankrupts; and they sued an Action in their own Names for the Debts. Per Cur. it well lies; for it is a Debt transferred by Parliament, and being upon a Con­tract, the Defendant waged his Law, andWager of Law, Vide supra. was admitted thereto; for tho' the Par­liament transferred the Debt, yet it is not any Debt of Record: But as he might have waged his Law against the Bank­rupt, so he may against the Plaintiffs, Croke Jac. 105. Vide supra in Jones Rep.

The Statute 1 Jac. gives an Action to the Assignee in his own Name, but he must declare specially.

The Form of a Declaration by Assignees: Of the Commissioners of Bankrupts against a Debtor.

Land ss. F. B. nuper de W. in Com Sur emiss [...] S. Chapman sum̄onit fuit ad respond P. S. & I. L. de plito quod reddat eis 41 l. quas eis debet & injuste detinet, &c. Et unde ijdem P & I. p W. C. Attorn suum dicunt qd tum p̄d F.—die—Anno, &c. apud Lon in poch, &c. emisset de quodam Petro Elston de L [...]nd Leatherseller quatuor scaplos Papiri Anglice Reams of Piller-Paper, ꝓ 20 s. duodecim [...]un­delas fili Anglice White Thred ꝓ 20 s (ac sic diversas seperales pcellas) sol­vend p̄fa [...] Thome Elston scilt cum inde requisitꝰ fuisset; que quidem separa­les summe in toto se attingunt ad 47 l. 5 s. 4 d. Cum (que) p̄d Petrus Elston 10 die Iulij Anno, &c. indebitatꝰ fuis­set eid I. L. ac quibusdam A. B. & I. U. & diversis alijs psonis Credito­tor̄ p̄d Petri Elston (ipsis I. L. A. B. & I. D. & p̄sat Petro Elston ex­isten subditis natis hujꝰ Reḡ Ang [...]) in diversis denario (rum) sum̄is in toto se attingen ad 1000 l. leglis monte Ang [...] ipū (que) Metro Elston sic indebitat exi­sten ac p̄d 47 l. 5 s. 4 d. p̄fat Petro Elston p p̄d F. minime solut existen [Page 148] idem Petrus E. postea selt (tale die & Anno) apud L. in poch & warda p̄d ( [...]od I. L. & alijs Creditoribꝰ p̄d Petri E. de debitis suis p̄d minime satisfact existen) incepit Custodire domum suam Anglice did begin toAct del Bank­rupcy.keep his House ibid existen ad intenti­onem defraudand Creditores suos p̄d de veris debitis suis p ipsum P. Elston debit. Et superinde eod 10 die Aug. Anno, &c. su [...]dict apud L. in p̄och & warda p̄d manifeste devenit decoctor (Anglice) became a Bankrupt qui qui­dem P. Elston tempore quo ip [...] sic ut p̄fertur devenit decoctor Anglice a Bank­rupt fuit & adhuc est subditꝰ notꝰ hujꝰ Regni Anglie videlt apud Londn p̄dict in p̄och & warda pd ac tunc & p multos annos ante tunc in ead poch & warda p̄d querebat faculta­tem suam vivendi Anglice did seek his trade of living p viam emendi & vendendi Ac cum postea selt (tali die & Anno) apud Westm in Com Midd ad peticon p̄d A. B. I. L. I. D. &Petition. aliorum Creditorum p̄d P. Elston tunc Thome dom Elsmere Dnō Cancella­rio Anglie exhibit & fa [...]t ꝓ remedijs suis versus p̄fat P. Elston tunc ex­isten decoctorem (Anglice a Bankrupt) in hac pte hend ijsdem Abr̄ Iacob & Iohe & ceteris Creditoribꝰ p̄d P. El­ston de debis suis p̄d tunc minime sa­ti [...]fact) quedam Commissio dicti Dom [Page 149] Regis super Statuta contra decocto­res Anglice Bankrupts edit & ꝓvi [...] sub Magno Sigillo diet Dom Regis An­glie Sigillat & hic in Cur̄ a ꝓlat ge­ren Commission dat apud Westm p̄d 16 die, &c. Anno, &c. quibusdam [...]. S. Ar̄ H. S. Ar̄ I. H. Mercator̄ R. H. Mercator̄ & W. R. Mercator̄ direct fuit p quam quidem Commissionem dict Dom Rex dedit plenam potestatem & authorita­tem p̄diet Commissionar̄ quatuor vel tribus eo (rum) quorum p̄d I. S. vel H. S. unum esse voluit juxta separalia Statuta de decoctoribꝰ Anglice Bank­rupts in hujusmodi casu edit & ꝓvi [...] in dicta Commissione men [...]onat non so­lum concern p̄d decoctorem Anglice Bankrupt corpus p̄d decoctoris, terras libera tenementa & customar̄ bona de­bita & alias res quascun (que) sed etiani concern omnes alias psonas que p concelamentum clameum vel aliter of­fenderet Anglice shall or do offend tan­gen p̄d p̄missa vel aliquam ptem inde contra intentionem & proposi­tum dictorn Statutorum vel utrius (que) eorum ad faciend & exigend sedm dicta Statuta & utrum (que) eorum omnes & quastibet rem & res quascun (que) tam erga & ꝓ satisfactione & solu [...]one p̄dict Creditorum quam erga & ꝓ o [...]bꝰ alijs intentionibꝰ & propositis sedm ordina­tionem & ꝓvisionem eo (rum)dem Statu­to (rum) per quam quidem Commissionem [Page 150] idem Dominus Rex voluit & dedit in mandatis qd p̄d Commissionar̄ quatu­or vel tres eo (rum) quorum p̄d I. S. & H. S. unum esse voluit ad procedend ad executionem & complementn p̄d Commissionis sedm veram intentio­nem & ꝓpositum dictorum seperalium Statutorum & utrius (que) eorum cum omni diligentia & effectu secundum specialem fiduciam dicti Dom Regis in illis repositam; ꝓut p eandem Commissionem plenius liquet & appa­ret Virtute cujus quidem Commissio­nis & vigore Statutorum p̄dicto (rum) p̄d H. R. & W. [...] meliori remedio Credi­torum p̄d post maturam deliberac̄onem inde capt postea selt 5 die, &c. apud London in poch & Warda p̄d ꝑ quan­dam Indenturam assignac̄onis interAssignment. ipsos H. R. & W. ex una pte & eos­dem Petrum Iacob & Iacobum ex altera pte factam, cujus alteram par­tem Sigillis ipsorum H. R. & W. signat ijdem P. I. & I. in CuriaRecital. ꝓferunt, cujus d [...] est die & Anno ult supra diet testat existit qd cum placi [...] ­erit Regis Majesta [...]i p Commissioneth suam sub Magno Sigillo Anglie Si­gillat geren dat 16 die, &c. Anno Regni sui 11 direct p̄d I. S. H. S. I. H. R. H. & W. R. dantem plenam potestatem & authoritatem eis vel ali­quibus quatuor aut tribus eorum quorum p̄d I. H. vel H. S. unum esse [Page 151] voluit, ꝓ executione Statutorum tan­gen ordines ꝓ decoct Anglice Bank­rupts quorum unum editum fuit in Parliamento inchoat & tent apud Westm p̄d 19 die Maij Anno, &c. in­titulat Actus ꝓ meliori relevio Cre­ditor̄ contra eos qui devenirent deco [...] Anglice Bankrupts vel aliquem eorum sup Corpus terras bona debita pd P. Elston qui devenit decoctor ea intenti­one qd tam Creditores p̄d P. Elston essent ratabiliter & ꝓportionabilit sa­tisfact de debitis suis in tant quant status p̄d P. Elston extenderet, quam erga & ꝓ omnibꝰ alijs materijs in­tentionibꝰ & ꝓpositis sedm ordinatio­nes & ꝓvisiones dictorum Statuto­rum & utrius (que) eorum prout p p̄d Com­missionem & Petitionem eidem annex’ liquere potest p̄d Commissionarij ꝓ debita executione inde juxta officio­rum eorum debitum ꝓcesserunt in eis­dem sedm equitatem & purport An­glice purport p̄diceorum Statutorum & Commissionis & ꝓ eo quod invenerunt ꝑ examinationem p̄d P. Elston & alio­rum qd cirea (tali die & Anno) P. Elston secrete remanebat Anglice did keep himself secret in Domo sua in Fryday-street London & recusabat col­loquium eum Creditoribꝰ suis vel ire foras ex ꝓposit ipsum custodire a sectis & arrestationibꝰ Creditorum suorum ac deferre & impedire eos a recupe­ra [...]n [...] [Page 152] debito (rum) suo (rum) & sic eo modo induxit seipsum Anglice did bring him­self infra periculum Anglice within the compass predictorum Statutorum de decoctoribꝰ, & fuit eod tempore pos­sessionatꝰ ut in jure suo ꝓprio de di­versis mercimonijs, merchandizis, bonis, utensilibꝰ, & pecuniarum sum­mis, & huit diversa debita tunc ei devcn ad magnum valorem, pars quorum quidem mercimoniorum, mer­chandi [...] ’, bonorum, debitorum, & sum­marum pecunie devenerunt ad manus diversarum personarum, quarum no­mina quam etiam particulares parcel­le quorum mercium, merchand, bono­rum summar̄ pecunie ac debitorum sunt specificat & content in schedula indent p̄d Indenture annex’ ijdemAssignment. Commissionarij ꝓ & in consideratione mille librarum current monete Anglie solvend p eosdem P. I. & I. ꝓut in Indentura p̄dicta postea mentionabatꝭ & ex ꝑte eorumdem P. I. & I. con­vent ꝓ tanto quantum legitime potue­runt, concessissent barganizassent ven­didissent & allocassent Anglice set over & p eandem Indenturam barganiza­verunt vend assign & allocaverunt eisdem P. I. & I. & eorum assiḡ om­nia & singula p̄dicta bona mercimon merchandi [...] ’ utensilia debita & sum­mas pecunie & quamlibet ptem & pcellam inde que legitime potuissent [Page 153] vendere, & que devenissent & reman­sissent in manibꝰ p̄dictarum ꝑsonarum quarum nomina ro [...]tent [...]uere in sche­dula p̄d’ p̄dicte Indenture annex’ [...]end’ & tenend’ omnia p̄dicta bona, mer [...]im merchandiz’ deba summas pecu [...]ie ac omnia & singula p̄dict barganizat vendit & assignat p̄missa, ac quamlibet ptem & pcellam inde, eisdem P. I. & I. executoribꝭ administatori [...]ꝭ & assign suis imppetuum. Et ijdem P. I. & I. ꝓ seipsis executo [...] administrator̄ & assign suis & ꝓ quolibet eorum con­veneruntCovenant. ꝓmiser̄ conces [...] & agreaver̄ ad & cum p̄fat I. S. Hen’ Ioh’ Har­per Rob’ & Wolst & ad & cum utro (que) & quolibet eo (rum) & utrius (que) eo (rum) exe­cuto [...]ibꝰ & assign p eandem Indentu­ram qd ijdem P. I. & I. execut & as­sign sui & quilibet eo (rum) cum omni con­venienti celeritate sectarentur Anglice will sue arrestarent impla [...]itarent & utentur eo (rum) & cujus [...]ihet eo (rum) optimis medijs & ope p leges hujus Regni se [...] alia legitima media, recuperare capere vel recipere de p̄d personis in p̄d Indentura & Schedula p̄d’ eid’ Indenture annex’ menc̄onat eorum heredibꝰ, executoribꝰ, vel aliquo eo (rum) p̄dicta bona mercimonia, merchand u­tensilia deba & summas pecunie ve [...] verum valorem inde & qd P. I. & I. hered exec administ vel assign sui vel aliqui eo (rum) ad aliquod tempꝰ pos [...] da­tum [Page 154] Indenture pd non acquietarent relax’ seu exonerar̄ vel causar̄ seu ꝓ­ [...]urar̄ fore acquietat relax’ vel exone­rat p̄dictas p̄sonas in p̄dicta Indent vel indentata Schedula p̄dicte Inden­ture annex’ menc̄onat hered administ vel assign suos vel aliquem eo (rum) de & ab p̄d bonis mercim merchand uten­sil debis veris, summis pecunie, seu de vel ab aliqua p̄te vel p̄cella eorum set tantummodo tal qual ijdem P. I. & I. essent accomptabil p̄d Com­missionar̄ seu tribꝰ eorum ad minus quorum, &c. fore unum. Et ijdem P. I. & I. ꝓ seipsis execut adminise & assign suis & ꝓ quolibet eo (rum) con­vener̄, concesser̄, &c. qd super recupe­ratione & receptione p̄dicto (rum) bono (rum),Account. &c. & summarum pecunie, seu alicu­jus partis inde, ijdem P. I. & I. exec admin vel assign sui de tempore in tempus infra 10 dies post quamli­bet requisitionem eis fiend p pdi [...] Commissionarios vel aliquos tres eo­rum facerent justum & verum compu­tum omnium talium summe & sum­marum pecunie qual ipsi vel eorum aliqui reciperent ꝓ aliquibꝰ p̄dict mer­cimon vendit vel ꝓ debis solut seu [...]ꝓ vel super aliqua composic̄one conce [...]n eadem, p̄d Commissionarijs vel ali­quibꝰ tres eorum vel alicui psone si [...] psonis quas ipsi in Scriptura nomi­narent & appunctuarent, existen Cre­ditoribꝰ [Page 155] p̄fat P Elston, qui sedm p̄ ­dicta Statuta contribuerent o [...]eri p̄ ­dicte Commissionis: Et sic compu­tantes qd ijdem P. I. & I. seu exe [...] admin vel assign sui vel aliqui eo (rum) immediate super quolibet tali Com­put solverent & deliberarent seu cau­sarent solvi & deliberari p̄dict Com­missionar̄ ut p̄d est in tali modo & forma seu talibꝰ psone vel psonis qual p̄d Commissionar̄ nominarent & appuncta­rent sedm p̄dicta Statuta vel utrum (que) eorum & p̄d Commissionem omnes ta­les summam & summas pecunie qual ille vel illi reciperent ut p̄d est: Ex­cept & reservat eisdem P. I. & I. exec & assign suis omni tal [...]atio­na [...]il summa & summis monete qual essent disburs [...]t seu expendit ꝓ & erga recuperationem & recepc̄onem p̄d bono­rum mercim merca [...]d sum̄e vel sum­marum pecunie ut supradict est ꝓut p eandem Indentur̄ inter al plenius apparet. Et ijdem P. I. & I. in fa [...]o dic quod p̄d debitum 48l. 5s. 4d. in Schedula p̄dicta inter alia p̄dicte Indenture annex’ & inter alia ijsdem P. I. & I. ꝑ Com̄issiona [...] p̄d assign & p̄d debitum 48l. 5s. 4d. superius specificat fore debitum est unum &Averment. idem debitum & non allud ne (que) diversum & est tam ad usum p̄d P. I. & I. [...]uam ad usum reliquorum Credito­rum p̄d P. Elston p quod ac vigore [Page 156] Statutor̄ p̄d actio accrevit ijsdem P. I. & I. ad exigend & [...]end de p̄fat Francisco p̄dict 48l. 5s. 4d. p̄di­ctus (que) Francilcus de 7l. 4s. 5d. inde ijsdem P. I. & I. postea satisfecisset p̄dictus tame Fr̄ licet sepius requisitꝭ p̄d 41l. inde resid eisdem P. I. & I. nondum reddidit sed, &c. Tr. 13 Jac. Rot. 3365.

Det per Assignee of the Commissioners of Bankrupcy, upon a Bond made to the Bankrupt.

W. B. queritur de T. R. de Long­lane in ꝑoch Sancti Sepul­chri London nigro pistore alias dict T. R. de ead Civitat nigro pistore in custodia Marr̄, &c. de plito quod red­dat ei decem lib leglis monete Anglie quas ei debet & injuste detinet pro eo videlt qd cum p̄d T. 11 die Febr̄ An­no Regni Dom Caroli nunc Regis Anglie, &c. nono apud Lond p̄d videlt in ꝑochia beate Marie de Arcubꝰ in warda de Cheap’ London p quoddam scriptum suum obligatorium sigillo ipsius T. sigillat Curie (que) dict Dom Regis nunc hic osten [...] cujus dat est eisdem die & Anno cogn se teneri & firmit obligari cuidam I. B. nuper de London Upholster in decem libris solvend eid I. cum inde requisitꝰ esset▪ [Page 157] Cum (que) etiam p̄d I. postea selt quarto die Martij Anno Regni dict Dom Caroli nunc Rs̄ Anglie undecimo apud London p̄d in poch & warda p̄d indebitat fuisset eid W. & diversis alijs Creditoribus ipsius I. existen subdit nat hujus Regni Anglie in diversis sepalibꝰ denariorum sum̄is in toto se attingen ad duas mille libras legalis monete Anglie ipso (que) I. sic eid W. & p̄d alijs Creditoribꝰ ipsius I. indebitat existen ac p̄d 10 libris in manibus ipsius T. ut p̄fertur insolut existen Idem I. p̄dicto quarto die Martij anno undecimo supradict apud London p̄d a Domo sua mansional decessit (Anglice) did depart ea in­tentione ad defraudand Creditores su­osAct des Bank­rupcy. p̄d de veris & justis debiti [...] suis eis p ipsum I. debit ꝑ quod Creditores sui impedit fue [...] Anglice were delayed de obtentione justorum & verorum debi­torum suorum Et superinde p̄d I. I. eod quarto die M. Anno undecimo supradicto apud London p̄d manifeste devenit Decoctor (Anglice became a Bankrupt) & fuit & adhuc est subditꝰ natus hujus Regni Anglie (videlt) apud London p̄d in paroch & warda p̄d & adhuc & p multos annos ante tunc querebat modum suum vivendi (An­glice) did seek his trade of living p viam emendi & vendendi Cum (que) etiam postea selt decimo die Martij anno [Page 158] undecimo supradict apud Westm in Com Midd ad petitionem p̄d W. & quorundam aliorum Creditorum p̄d I. tam ꝓ seipsis quam ꝓ alijs Credito­ribꝰ ipsius I. hon [...]li viro Thō Dom Coventry adhuc & adtunc dnō custod Magni Sigilli dicti Dom Regis nunc Anglie exhibit & fact ꝓ remedijs suis versus p̄fat I. tum existen de­coctorem (Anglice a Bankprupt) in hac pte hend eid W. & alijs Credito­ribꝰ p̄d I. de debitis suis p̄d tunc mi­nime solut sive satisfact existen que­dam Com̄issio Dom Regis super Sta­tut Commission. contea decoctores (Anglice Bank­rupts) edit & ꝓvi [...] sub Magno Sigil­lo ipsius nuper Regis Anglie sigilla [...] & hic in Curia ꝓlat geren dat apud Westm p̄d p̄d decimo die Martij anno undecimo supradict quibusdam I. G. Ar̄ T. E. Ar̄ A. H. Gen I. W. Gen & R. U. Gen direct fuit ꝑ quam qui­dem Com̄issionem idem Dom Re [...] nunc adtunc & ibidem dedit plenam pote­statem & authoritatem sd Commissio­nar̄ quatuor vel tribꝰ eorum quorum p̄fat I. & T. unum esse voluit juxta separalia Statuta de decoctoribꝰ An­glice Bankrupts, & quodlibet eorum in hujusmodi casu edit & ꝓvis in dicta Commissione men [...]onat non solum de & concernen dictum decoctorem Anglice Bankrupt corpus suum terras liberas & custumar̄ bona debita & alia que­cun (que) [Page 159] sed etiam concernen omnes ali­as psonas que p concelament clameum vel aliter offendissent vel offenderent (Anglice do shall and offend) concer­nen pmissa vel aliquam ptem inde contra inten [...]onem & ꝓposit (Anglice the meaning) eorundem Statutorum vel alicujus eorum, & agere & exequi sedm sdicta Statuta & eorum alicu­jus omnes & singulas rem & res tam erga & ꝓ satsfac̄one & solutione Cre­ditorum pd quam erga & ꝓ omnibus aliis intentionibꝰ & ꝓpositis sedm or­dinationem & ꝓvisionem eorundem Statutorum dictus Dom Rex p eand Com̄ssionem volens & pcipiens eisdem Commissionar̄ quatuor vel tribꝰ eo­rundem quorum p̄fat I. G. & T. E. unum esse voluit ad ꝓcedend ad execu­tionem ad accomplementum sd Com­mission [...]s sedm veram intentionem & ꝓposit (Anglice meaning) eorundem separalium Statutorum & alicujꝰ eo­rumdem cum diligentia & effectu ꝓut specialis fiducia dicti Dom Regis in eis posit fuit prout p eandem Com­missionem plenius apparet Virtute cu­jus quidem Com̄issionis & vigore Sta­tutorum p̄dict p̄d I. G. A. H. & T. W. tres Com̄issionar̄ p̄d’ & p̄d’ I. B. ꝓ meliori remedio p̄d’ W. B. & ꝓ alijs bonis causis ipsos ad inde specialiter moven post maturam deliberationem inde cap [...] selt decimo quarto die, &c. [Page 160] Anno Regni, &c. ꝑ quoddam script [...] suum indentat sigillis eorundem I. G.Assignmet. A. H. & I. W. sigillat ad & cum con­sensu creditorum sd’ I. B. qui Com̄issi­onem sd’ ꝓsecut fuissent & impetrassent Ac etiam ad & cum assensu p̄d’ I. W. decoctoris & in executione Com̄issionis illius assignaverunt & extraposuerunt (Anglice have set over) eid’ W. W. p̄d’ debitum decem librarum inter alia p̄fat I. B. p sfat T. R. in forma p̄d’ debit hend’ tenend’ petend’ demand’ sectand’ recuperand’ & recipiend’ debi­tum p̄d’ quamlibet ptem & ꝑcellam inde eidem W. executoribꝰ administra­toribꝰ & assign suis tanquam bona sua ꝓpria & ad suum ꝓprium usum & bene­ficium imppetuum abs (que) aliquo Com­pō p ipsum W. B. executores vel assign suos alicui psone vel aliquibus pso­nis quibuscun (que) ꝓ eisdem fiend’ p quod ac vigore Statutorum p̄d’ actio accre­vit eid’ W. B. ad exigend’ & hend’ de p̄dict T. R. p̄d’ decem lib p̄d’ tamen T. licet sepius requisitus &c. p̄d’ 10 l. p̄fat I. W. nondum solvit sed illi ei huc­us (que) solvere omnino contradixit & ad­huc contradicit ad damnum ipsius W. quin (que) librarum Et inde ꝓducit sectam, &c.

CHAP. XII.

Of Pleadings in respect of the Statutes of Bankrupcy by the Debtor or by the Commissioners to Actions brought against them, and what Pleas shall be good, and what not.

IN an Action on Assumpsit for Wares sold; the Defendant pleads such▪ day the Plaintiff became a Bank­rupt, and yet is so; to which the Plain­tiff demurred, because he saith not he was a Tradesman, 3 Keb. 134. which should be, Hanslop and Hales; yet the Plea seems to be ill, Vide Case sequent’ and 2 Keb. 32.

In Debt on Obligation, the Defen­dantPlea, that the Plaintiff was Bankrupt be­fore Action brought, ill. pleaded, before the Action brought the Plaintiff became a Bankrupt; to which the Plaintiff demurred. Per Cu­riam, it's an ill plea; and until assignment be made, the Debtor is defensless: Pay­ment before Commission sued out is good enough, and so it is before his Debt is assigned; quaere de hoc. Judgment pro Quer’ 3 Keb. 616. Andrews and Spicer. Q.

Det on Obligation for performance of Articles for payment of Mony for Rent; Defendant pleads that the Plaintiff was a Bankrupt, and that the Defendant paid [Page 162] the Mony to the Assignees of the Com­missioners of Bankrupcy, Tompsons En­trys, Fo. 166.

Det on Obligation, on Oyer the Defen­dant protestando that this Debt was not assigned by the Commissioners of Bank­rupcy of Holt, for plea saith, that this was not due to the Plaintiff, & alijs Cre­diroribus of Holt; to which the Plaintiff replied it was so due, and the Defen­dant demurred specially as double. Twis­den conceived the Replication ill, and that the Assignment to the Plaintiff should be shewed, that being traversable as well as the Bankrupcy: This Case seems not to be well reported here, there­fore let us see how it is reported three or four Leaves after. In Det on Obliga­tion, Defendant pleads that it was in trust for Holt who is a Bankrupt, & vir­tute Bankrupcy tra­versable as well as the Assign­ment. Commissionis quibusdam Commissioners, &c. this Debt was assigned to Ashly and Penning & alijs Creditoribus, &c. to which the Defendant demurred specially for doubleness; the Court conceived the Bankrupcy traversable as well as the As­signment, but the Issue is well enough, 3 Keb. 710, 737. Jonas and Boulton.

Action on the Case, Indebitatus Assump­sit to pay a Debt assigned by the Com­missioners of Bankrupts; the Defendant pleaded the Statute of Limitations, and that Causa Actionis non accrevit infra sex Stat. Limitati­ons. Annos. Mr. Stone hath made a Quaere [Page 163] whether he that comes in as Creditor, and hath a Debt made over unto him by the Commissioners, may not be barred by the Statute of Limitations. Mr. Bil­linghurst, p. 129. very roundly answers the matter, that he shall be barred. But it seems this is not within the Statute of Limitations: And certainly the Commis­sion being dated within the six years, the plea should have been infra sex an­nos, after the Commission. Let us di­stinguish: If a Commission be not taken out within six years (as it may be so long and longer except in case of Pur­chasers, for then it must be taken out within the space of five years) then perhaps to this Action, being on Con­tract, the Defendant may plead the Sta­tute of Limitations; but if Commission be taken out within the six years, and Assignment made within six years, then the Statute seems to preserve this Debt by the Assignment, it being to relieve Creditors against such base Fraud: But to allow this Knavish Plea to cover for­mer Knavery of this high Nature, it is intolerable, Vide in 3 Keb. 625, 645. in Coply and Dockmins Case, an Anonymous Case cited by Weston, that it was ad­judged in C. B. that this Debt is not with­in the Statute of Limitations.On Covenant by Assignee to account.

In Det on Bond given to the Plaintiff to perform Covenants between the De­fendant as Assignee, for the benefit of [Page 164] the other Creditors, and the Commissi­oners of Bankrupts, which was, inter alia, to give an account to the other Credi­tors, or to either of their Assignees on re­quest: The Plaintiff said he had not gi­ven him an account in his Replication; (the Defendant having pleaded perfor­mance in bar) to which the Defendant demurred, because the Covenant is joint as to Creditors, to which the Court in­clined, there being a subsequent Clause several as to Assignees, 1 Keb. 815. Selby and VValker: But per Keeling, the Cove­nant is several, according to the interest and subject matter, and each of the Cre­ditors may call the party to an account, but the Covenant was by the Defendant and his Brother, which was severally to do their endeavours to bring in the Debts, & super requisitio’ eis fact’, they would account; therefore both are bound to account jointly, tho' the Bond is only given by one. Court held it ill, the Plaintiff being no party to the Covenant, p. 843. Mesme Case.

In Trespass by a Bankrupt against a Stranger, he cannot plead the Plaintiff hath done such an Act to make him a Bankrupt, 2 Keb. 32.

In Debt by Assignee of the Commis­sioners, the Defendant pleads nil debet, Wager of Law. and wages his Law; and by the Court he may well, tho' the interest and power to sue in his own name be good to the [Page 165] Plaintiff by the Statute of Bankrupts: But otherwise if the duty it self had been originally due by the Statute, Noy p. 112. Osborn and Bradshaw. Vide supra.

In Assumpsit, the Defendant pleads that after the Promise, and before the Action, the Plaintiff became a Bankrupt, deny­ing himself to Creditors, of which the Plaintiff had notice. Per Cur’ paymentPayment before notice, or Com­mission sued o [...]t to a Bankrupt after notice, is void; but if no notice, or if the party be compel­led to pay by Suit, as here before any Commission is sued out, it's a good dis­charge. Formerly till Commission sued out, the Debtor ought not to repay tho' he had notice of Bankrupcy, 3 Keb. 231. Prin and Beal.

Of Pleadings to Actions brought against the Commissioners.

IN Trespass against the Commissioners of Bankrupts, if the Plaintiff declaresTo the break­ing the House it must be spe­cially pleaded. of the entry into his House, the Defen­dant may not plead not guilty, and give the Special Matter in Evidence; but he ought to plead the Commission of Bank­rupcy, and all the Special Matter; butAliter, As to taking Goods. if it had been for taking of Goods only, he may plead not guilty generally, Litt. Rep. 356. By the Statute 1 Jac. 15. It is Enacted, That if any Actions of Tres­pass, or other Suit shall happen hereafter to be brought against any Commissioner autho­rised [Page 166] by the Statute made in the 13th of Eliz. for Bankrupts, or any other person or persons having Authority by vertue, or under the Commission, authorising the said Commis­sioners for the doing or executing any matter by force of the said Statute, or this present Act, that the Defendant or Defendants in any such Action or Suit may plead not guilty, or otherwise justifie that the Act or thing whereof the Plaintiff or Plaintiffs complain­ed was done by authority of the said Act of 13 Eliz. or in this present Act respectively, without expressing or rehearsal of any other matter or circumstance contained in either of the said Acts, and without enforcing him or them to shew forth their Commission authori­sing the said Act or thing, whereunto the Plaintiff shall be admitted to reply, that the Defendant did the fact supposed in the De­claration, of his own wrong, without any such Cause alledged by the said Defendant; whereupon the issue in such Action shall be joined to be tried by twelve men; and up­on trial of that Issue, the whole matter to be given on both parties in Evidence, ac­cording to the very truth of the same: And if Verdict upon such Issue shall pass for the De­fendant, the Defendant to have his Costs.

Now the reason of the difference seems to be, that the Commissioners may plead the General Issue, or any thing done by the Statute of 13 Eliz. and 1 Jac. and neither of those Statutes do authorise the breaking open Houses; but that Au­thority [Page 167] is given by 21 Jac. and no such General Pleading is provided for by that Statute.

Action on the Case was brought byFormer Action of Trespass no Plea to an Acti­on on the Case. the Plaintiff for the breaking his House, and taking his Goods away, by pretence of the said Commission; whereas he was no Bankrupt, per quod he was impaired in his Credit. Defendant pleads the Plaintiff brought an Action of Trespass for the same Trespass against him, and that he recovered therein; It is no Plea, Stiles Rep. 3. 201, 202. Watson & Norbery.

As for the Form of Pleas, Vide postea.

CHAP. XIII.

Of the Venue, Evidence, Trial.

Of the Venue.

IN Action of Trover by Assignee of the Commissioners, the Visne may be laid in Middlesex, whence the Commission issueth, or in the place where the Cause of Action ariseth, at the Plain­tiffs Election▪ the Commission being the Foundation of all▪ [...] 15. & 16. Car. 2. Bayly and Bunnings Case

Evidence [...]

THE Evidence [...] were the Depositions before the Commissi­onersDepositions. of the Bankrupt, which per Curiam is good enough▪ bu [...] the Defendants Councel opposing them▪ they proved viva voce what the Bankrupt con [...]est.

In a Suit in Chancery on Assignment of Lands, &c. the Depositions which were taken before the Commissioners, not allowed as Evidence; but a Special Commission taken out: The Defendant excepted to a Witness because he was aWitness. Creditor, and so might come in before [Page 169] division made: But after four Months after any Dividend duly made, he is a good Witness; for no other Dividend shall be intended, 2 Keb. 348 Bets and Mico.

What Evidence sufficient to prove a man Bankrupt, Vide Siderfin, 411. Sir Anthony Batemans Case, & alias supra.

On Trial at the Bar in Trover and Conversion for 4000 l. which was the Mony of Sir A. C. a Jew, and upon his Bankrupcy, assigned by the Commissio­ners of Bankrupts to the Plaintiff, and exception was taken to the Evidence, be­cause the Assignment of the Commissio­ners was 18 No. 67. and the Plaintiff demands the Mony of the Defendant 21 No. 67. and the Declaration is of the same Term (Sil't) Mich. 67. which relates to the first day of the Term: And so Action brought beforeAction before Cause of Acti­on. Cause of Action. But per Cur. an Action in B. R. shall not be said to commence, until the Defendant hath made his ap­pearance, which is not until Bail filed, (if it be by Bill) Siderfin, p. 373. Lidcott and Backwell.

Maxims of Bankrupts.

ONCE a Bankrupt and always a Bankrupt, per Glyn. 2 Siderfin, 115. Vide prius.

Statues favourably to be construed for the Creditors, Vide le Stat. 2 Siderfin. 115.

[Page 170]He that is a Bankrupt to one Creditor, is a Bankrupt to all, Stiles Reg. 48.

CHAP. XIV.

Of Distribution: Notice to Creditors: Of Dividend, and the Form; as al­so the Form of a Deed of Distribu­tion.

Of Distribution, Vide prius sub Titul’ Assignment.

THE Commissioners may sell and prepare for Distribution presently upon the execution of the Commission; but till the four Months are past, they may not proceed to Distribution, Hutton, p. 38.

Per Coke and VVinch. 10 Jac. Reeve vers. May, The Commissioners may di­vide a Debt upon Obligation.

Distribution must be to every one of the Creditors a portion, rate and rate-like, ac­cording to the quantity of his or their Debt, 2 Rep. 25, 26.

Commissioners ought to make several Distribution to several Creditors, and not to mak a joint-Sale or Assignment to several Creditors: For if he owe to A. 20l. [Page 171] to B. 20 l. and to C. 5 l. a joint Sale or Assignment to A. B. and C. is not accord­ing to their power given by the said Act 13 Eliz. but if by the Special Verdict it appears that the Debt was due to the Plaintiffs jointly, then the joint Sale is good, 2 Rep. 26.

If a Bankrupt be indebted to one 20 l. and to another 10 l. and he hath a Debt due to him by Bond of 20 l. Now the Commissioners may assign and divide this (viz.) to every Creditor a portion, part and part-like; and the Assignees it seems may sue severally for it, Godb. 195. See Bradshaws Case.

Per Stat. 21 Jac. Judgmentees, Coni­sees, Attachers, per foreign Aattach­ment, if there be no Extent sued and ex­ecuted upon any the Lands, &c. Goods and Chattels of the Bankrupt before the time of his Bankrupcy, shall only have a rateable part with other Creditors for their just Debts, Vide Prius Cap. 5.

If any Distribution be made of any part of the Estate, no Creditors are to be admitted after, that come not in be­fore, Hob. 287. vide supra Cap. 6. Fuller and Lance in Chancery.

Notice to Creditors of making a Dividend; upon paying Contribution Mony, and pro­ving their Debts.

WE whose Names are subscribed, being the major part of Commis­sioners named and authorised in the Commission of Bankrupt awarded against A. B. of, &c. the Four Months since the the date and suing forth of the said Commission, having been long since elap­sed and expired; and the Creditors who prosecute the same, having desired that we should proceed to make a Dividend of the Estate by us already discovered and assigned, as by the Statutes we are im­powred, do therefore by these Presents give fourteen days notice thereof, and that we do intend and appoint to meet for making the said Dividend, on Friday the first day of September next ensuing, by Ten of the Clock in the Forenoon of the same day, at the Irish Chamber in in Guildhall, London; and such Creditors who do intend to come into the said Commission for their respective Debts, are to take care to pursue the directions of the said Statutes, in paying in their Contribution-mony, according to our former Order in this Affair, lest they be excluded the Dividend; and they are also at the same time and place, to come [Page 173] prepared to make due proof of their re­spective Debts; dated the 18th day of August, in the fifth year of, &c.

CHAP. XV.

Of Bankrupts: Where there are Part­ners, and Joint-stocks.

AN Action of Trover well lieth by the Assignee of one Partner a Bankrupt, against the other, p. 23. Car. 2. B. R. Thomas and Day, agreed at a Trial.

If there be two Partners, and one breaks, you shall not charge the other with the whole, because it is ex maleficio: But if there are two Partners, and one of them die, the survivor shall be char­ged for the whole. If he be sworn be­fore the Commissioners of Bankrupts, he is admitted no Partner, per Twisden, Mod. Rep. 45.

If one for a time deal in a Trade, and after he forsakes his Trade, but leaves his Stock in the hands of another, and he hath part of the gain, and is partaker of the loss; if such a one after desert and conceal himself, he is a Bank­rupt [Page 174] within the Statute, Palmers Rep. 325. in the Case of Hayler and Hall.

Craven & al' and Knight, &c. In Chancery. The Bill sets forth that the Defendant George Widdowes being indubt­ed to the Plaintiffs, became bound to them in several Bonds; and the said Widdows, and the Defendant Berman for several years past, were Copartners, and Widdows by Articles of Copartnership was intitled to two thirds of the whole Stock, and the Defendant Berman to one third part; the said Widdows and Berman 25 August last became Bankrupts, and a Commission of Bankrupcy was awarded again them; the Commissioners of Bank­rupts assigned all the Estate of the said Bankrupts to the Defendant Knight and others, and refuse to let the Plaintiffs Creditors of the Bankrupts to come in, and intend to divide the said Estate a­mongst the Joint-Creditors of the Bank­rupts, by reason whereof the Plaintiffs Debts will be utterly lost.

The Defendants insist, that it was agreed by Indenture of Copartnership, that all such Debts as should be owingJoint Debts to be paid out of the Joint-Stock. on the Joint-Account should be paid out of the Joint-Stock; and at the end of the Partnership each Copartner take and receive to his own use his share of the Joint-Stock, and that the Joint-Stock or Trade should not be charged with the private or particular Debts of either of [Page 175] the Partners, but that each should pay their private Debts out of their particu­lar Estates, not included in the Joint-Stock: That if both the said Parties should be living at the end of the first three years of the six years, that the said Berman should come in Joint-Partner ac­cordingly; and during the said Joint-Trade, the Copartners became jointly indebted to the other Defendants, Knight, &c. in 6000 l. and that Widdows became indebted to the Plaintiffs, as aforesaid, without the consent of Berman; and the Mony due upon the said Bonds was not brought into the Account of the Joint-Stock; and the said Widows was only a Surety, and received none of the Mony; and the Defendants insisted, that the Joint-Creditors ought to be first paid out of the Estate of Partnership; and that the Commissioners have no power to grant the Joint-Estate to pay the Plain­tiffs, they being separate Creditors of Widdows: And if a Surpluss of the Joint-Estate, after the Joint-Creditors paid, then the Plaintiffs can have but a joint­moiety of such Surpluss, towards their satisfaction, the said Bermans moiety be­ing not liable to pay the said Widdows his separate Debts; and the Debts then claimed were the proper Debts of the said Widdows; and yet after all the Joint-Debts are paid, there will be an over­pluss; so that thereby the said Berman [Page 176] will be discharged, and have Mony paid unto him: But if the Plaintiff, and other separate Creditors of Widdows beSeparate Cre­ditors. admitted to the Joint-Estate, there will not be sufficient to pay the Joint-Credi­tors; so that thereby not only Bermans Estate will be applied to pay widdows's Debts, but will be liable to the Joint-Creditors. But there can be no division of the Joint-Estate whereby to charge any part thereof with the private Debts of either Party; and till the Joint-Debts are paid, and till division made of the Surpluss, both parties are alike interested in every part of the said Joint-Stock; that the Commissioners have no power by the Commission to administer an Oath to the Plaintiffs for proof of their Debts, they claiming Debts from the said Widdows only; and the Commission is against Widdows and Berman jointly, andCreditors. not severally, and therefore cannot admit the Plaintiffs Creditors.

The Court declared, that the Estate belonging to the Joint-Trade, as also the the Debts due from the same, ought to be divided into moieties, and that each moiety of the Estate ought to be char­ged in the first place with a moiety of the said Joint-Debts; and if there be enough to pay all the Debts belonging to Joint-Trade, with an overplus, then such overplus ought to applied to pay the par­ticular Debts of each Partner; but if suf­ficient [Page 177] shall not appear to pay all the Joint-Debts; and if either of the said Partners shall pay more than a moiety of the said Joint-Debts, then such Part­ner is to come in before the said Com­missioners, and to be admitted as a Cre­ditor, for what he shall so pay over and above the moiety; and was decreed ac­co [...]dingly.

Per North, Chief Justice. If there are Accounts between two Merchants, and one of them becomes a Bankrupt, the Course is not to make the other, who perhaps upon stating the Accounts, is found indebted to the Bankrupt, to pay the whole that was originally intrusted to him, and to put him for the recovery of what the Bankrupt owes him, into theOne Merchant is only to pay what is due to the other Mer­chant on Ac­count. same condition with the rest of the Cre­ditors; but to make him pay that only which appears due to the Bankrupt on the foot of the Account. Aliter, for Accounts between them, after the time of the others becoming a Bankrupt, if any such were.

CHAP. XVI.

Of other things to be done, or the Con­sequentials after Examination, Dis­covery and Distribution.

Remedy for the Creditors for the Remain­der of their Debts.

BY the Statute 13 Eliz. cap. 7. It is Enacted, That if the Creditors of the Bankrupt be not fully satisfied, or otherwise contented for their Debts and Duties, by the ways and means before speci­fied and declared; that then the said Cre­ditor or Creditors, and every one of them shall, and may have their Remedy for the Recovery and Levying of the residue of their said Debts or Duties, whereof they shall not be fully satisfied, paid or otherwise contented in form aforesaid, against the said Offender or Offenders, in like manner and form as they should or might have had before the making of this Act. And that the said Creditor or Creditors, and every of them, shall be only barred and excluded by vertue of this Act, of, and for every such part and portion of the said Debts and Duties, as shall be paid, satisfied, distributed or de­livered unto him or them by order of the [Page 179] said persons, as is aforesaid; and of no more portion or parcel thereof.

Suppose the Assignee of the Commis­sioners hath sued a Debtor of the Bank­rupt, and recovered upon Bond made to J. S. and distribution is made to the Cre­ditors, amongst whom J. S. was one, and he is not satisfied: He sues the Bank­rupt himself upon the Bond formerly made to him, and which was produced and proved before the Commissioners; in whose name shall he Sue, and how shall he Declare? The Act gives him leave to Sue in like manner and form as he might have done before the ma­king of this Act: So that I conceive he may Sue in his own Name; but when he Declares, he must confess what part he hath received, but not set forth how, and which way he received it. Q.

To shew how the Law hates a Knave, and favours honest Creditors, I shall set down a short Case, which tho' not very pertinent to the matter in hand, yet it discovers how that a man may in some Cases recover the Remainder of his Mo­nies, tho' he hath given a Release.

A Scrivener runs away with 2000 l. with which he was intrusted to lend out, and absconds himself; and after some time writes to the party, that if he will take 500 l. of his Mony, and give him aDecree for Mo­ny against a Mans own Re­lease. Discharge, he should have it; which he did, not knowing how to come by his [Page 180] Mony; yet after the Creditor was relie­ved in Chancery for the rest, notwith­standing his own Release, Inter Dr. Lake and Deane; for by Lord Egerton, Volenti non fit injuria, si dolo sit inductus ad con­sentiendum.

Of the Commissioners Account to the Bank­rupt, and of the Overplus of the Estate, if any be.

BY the Statute 13 Eliz. cap. 7. It is Provided and Enacted, That such of the said Commissioners as shall put the said Commission in execution, shall upon Lawful Request to them made by the said Bankrupt, not only make a true Declaration to the same Bankrupt, of the employing and bestowing of their said Lands, Tenements, Offices, Fees, Goods, Chattels and Debts so paid and satisfied to their said Creditors, but also make payment of the overplus of the same (if any such shall be) to the said Bankrupts, their Executors, Administrators or Assigns.

By the Statute of 1 Jac. c. 15. It is further Enacted, That such of the said Commissioners as shall put the said Commission in execution, shall upon Lawful Request to them made by the said Bankrupt, not only make a true Declaration to the said Bank­rupt, of employing and bestowing of his, her or their said Lands, Tenements and He­reditaments, [Page 181] Offices, Fees, Goods, Wares, Monys, Chattels and Debts, which shall be paid and satisfied to their said Creditors, as is in like Case limited and appointed by the said former Statute, made in 13 Eliz. but also make payment of the overplus of the same, if any such shall be, to the said Bank­rupts, their Heirs, Executors, Administrators and Assigns; and that the said Bankrupts, after the full satisfaction of the said Credi­tors, shall have full power and authority to recover and receive the Residue and Remain­der of the Debts to them owing.

If the Bankrupt die, yet his Executors shall have an Action against the Com­missioners to account. Quaere, If all the Commissioners die, whether the Execu­tors, or Executor of the Survivor shall be accountable.

What Remedy the Bankrupt, or Creditor, or others may have in Case of Misdemeaner against the Commissioners.

IF the Commissioners do not pursue the Acts of their Commission, in such Case the party hath no other Re­medy but to put in a Traverse contraryTraverse. to the finding of the Commissioners, that he is a Bankrupt, and say he is not a Bankrupt, 8 Rep. 121. For a Certificate of the Commissioners, that a man is a Bankrupt, is no Estopple to the Party; [Page 182] but that he may aver against this, and Traverse that he is not a Bankrupt: The Commissioners are not Judges, but have only an Authority, and the Party grie­ved hath no other Remedy, not by Writ of Error or otherwise.

If the Commissioners will not pay a Creditor his rateable part, he shall have his Action of Debt, per Stone. Chancery I conceive will relieve more properly.

A Decree was made 4 Jac. inter Wood and Hayes, to relieve one which had double taken from him (as a Concealer)▪ by vertue of the Statute of Bankrupts, upon indirect dealing by Commissioners in the execution of the Commission.

Note, By the Statute 1 Jac. c. 15. It is Enacted, that after any Commission of Bankrupts sued out, and dealt in by the Commissioners; if the Of­fender happen to die before Distri­bution,Death of the Bankrupt. yet nevertheless the Com­missioners shall, and may in that Case proceed in Execution in, and upon the said Commission for, and concerning the Offenders Goods, Lands, Tenements, Hereditaments and Debts, in such sort as they might have done, if the Party Of­fender were living.

Allens Case in Chancery.

EEwards, a Citizen of York, that hadApril 1 Jac. R. born the Office of Sheriff there, be­ing indebted to Allen, Habersley and others of London, for Wares, became Bankrupt, because he suffered himself to be outlaw'd at the Suit of Mistress Young of York, for Debt.

Allen and Habersly, and some otherOctob. 1 Jàc. R. Creditors of London, by a Petition to Lord Chancelor, procured a Commission upon the Statute of Bankrupts against Edwards to Sir Thomas Bennet, Sir Willi­am Rumney, Mr. Nicholas Fuller and Mr. Richard Aldworth.

The Commissioners did sell by DeedDece [...]b. 3 Jac. of Bargain▪ and sale enrolled, all the Bankrupts Lands to Allen and Habersley for 400 l. the Land being then worth 2400 l. but sold it so cheap as 400 l. inLands sold by the Commissio­ners with In­cumbrances be­fore he became a Bankrupt. respect of Incumbrances, being Mort­gaged to Alderman Boles his Son, and with a Statute of 2000 l. to Alderman Boles himself, defeazanced to pay the Mortgage Mony, and two HundredLast Certificate of the Commis­sioners proved this. pounds more lent by the Alderman; and all such other Sums as Edwards then owed to Alderman Boles or Smith, or should owe for Wares delivered, or to be deli­vered within three years following; and it stood also incumbred with a Statute of [Page 184] 1500 l. to Alderman Boles himself defea­zible, first for 800 l. and after upon 200 l. more lent for 1080 l. (the 80 l. being in­terest) and it stood also incumbred with a Lease for 80 years of part made to one Cheney; all which Incumbrances were made long before he was Bankrupt and before he became indebted to Allen or any of the Londoners which sued out the Commission.

After this Sale the Commissioners, andMay 4. Jac. Allen, and all the other Creditors thatFirst Certifi­cate. sued out the Commission upon full consi­deration had of the Estate of the Bank­rupt, how it stood incumbred with the Mortgage, Statutes and Lease, made agreement with the Bankrupt and hisAgreement by the Commissio­ners with the Bankrupt to take 10 s. in pound. 2. Of the Cre­ditors bound for the payment of it. Friends, to this effect, that the Credi­ditors would take ten shillings in the pound for their due Debts, and Smith and Wood (Wood only being a Creditor that joined not in the Commission) un­dertook on the behalf of the Bankrupt, to be bound for payment thereof to the Creditors; And it was agreed that Allen and Abersley should convey the Bankrupts Lands to them for their Security, whichAnd the Bank­rupts Lands conveyed to them for secu­rity. The Agreement certified by the Commissioners. Refusal to per­form the Agree­ment. agreement was certified by the Commis­sioners; and they did also certifie that Allen after this agreement (being so Godly and Charitable) refused the a­greement, and sought the advantage of Law to the great loss and hindrance of the rest of the Creditors, and to the utter [Page 185] undoing of Edwards the Bankrupt, his Wife and Children for ever.

In execution of this Agreement 12 l. Depositions prove this. 10 s. was paid to one of the Creditors, and Books drawn by Mr. Fuller, and in­grossed ready for perfecting of the assu­rances.

All which notwithstanding Allen re­fusing the Agreement with Habersley, pre­ferred1. One Credi­tor prefers his Bill, suggesting that the In­cumbrances were fraudu­lent. a Bill in Chancery against Ed­wards, Alderman Boles, Smith, Cheney, Wood and Edwards his Father (a man 80 years old) complaining that the Mort­gage, Statutes and Lease were all fraudu­lent, and the Mony being paid, were kept on foot by practise to prejudice the Creditors, and the sale made by the Commissioners.

Edwards, the Bankrupt, Smith and Wood preferred a [...]ross Bill against Allen The other Cre­ditors prefer a Cross Bill to perform the Agreement. and Habersley▪ for the performance of the Agreement of ten Shillings in the pound, and to convey the Land to Smith and Wood, according to that agreement.

At the hearing of the Cause, upon Al­lens Octob. 20. 16 Jac. Bill the Lord Chancellor finding it confessed, that of the Mortgage Mony there was but 30 l. unpaid, ordered that Allen, paying that thirty pound shouldThe Incum­brances decrced to be dischar­ged, and the Land to be en­joyed by the two Creditors. have the same conveyed to him, and Habersley and Alderman Boles his Son, and the Statute of 2000 l. discharged, which was done accordingly, and a De­cree made, that Allen and Habersley and [Page 186] their Heirs should enjoy the Land ac­cording to the sale of Commissioners, free from these Incumbrances and Charges of Alderman Boles his Statutes of 1500 l. was left to the Law; howbeit upon ano­therAhparent. motion, his Lordship staid the Li­berate, after the Extent upon that Sta­tute, and so it rested.

Allen having gotten the IncumbranceThe Covenant proved in the Bargain and Sale. Commissioners sell Land for 400 l. which was worth 2400 l. (because of Incumbran­ces which were not real) and the Vendee would enjoy it for that against the other Cre­ditors. thus clear'd by the Court of Chancery, sought to hold the Lands for the 400 l. only, which was worth 2400 l. albeit he had Covenanted with the Commissioners in the Bargain and Sale, that if the Lands were sold for more than for 400 l. with­in three years, they should pay the over­plus which it should be sold for above that 400 l. towards satisfaction of Cre­ditors; and all the Incumbrances being cleared within the three years, as afore­said, yet would he hold the Land for 400 l. and pay no more for it.

Hillary 7 Jac. Regis.

Allen gets a Commission out of theBy Affidavit of Goland 13 A­pril 1610. 6 Jac. Vendee gets possession upon the first Decree. Chancery to the Sheriffs of York there, to put him in possession of the Land, up­on the first Decree in Chancery made for him; and Allen with the under She­riff cast Edwards Children all out of Doors, and altho' the under Sheriff with Tears in his Eyes besought Allen to take com­passion on them, yet he would not yield to any thing, but turned them out in [Page 187] Frost and Snow, that they were inforced to sccour themselves in a Mashfat; and when some of the Tenants of the Land would have taken them in and relieved ved them, Allen threatned to turn themAffidavit of weight. out of their Tenements if they did so, and did turn out one of Tenants out of his House who entertained them but one Night.

Also Allen took divers Cattle and Goods that were Edwards Fathers Goods, and not the Bankrupts, as six Kine, &c. and the Old Man suing for them in the Kings Bench, Allen procured an Injun­ction out of the Chancery, and staid all the Suits so long as the Old Man lived, and who shortly after died.

Edwards and his Wife here at London, following the Suit to be relieved against Allen in July 8 Jac. died both together of the Plague, leaving seven poor Children behind, one sucking at Nurse in York­shire.

The Lord Chancellor being informedA Petition 17 Aug. 1610. 8 Jac. Bill revived to perform the a­greement of 10 s. in the pound. 8 Jac. 3 Nov. assignment. of this extremity by Petition and Affida­vit, gave direction that the Bill which Edwards, Smith and Wood preferred upon the Agreement of ten Shillings in the pound, should be revived on the behalf of the poor Children; and his Lordship assigned Wood their Gardian, to prose­cute, and Francis Moor he assigned to be of their Councel in Forma Pauperis.

[Page 188]This Cause coming to hearing, and the Agreement appearing confessed by Allens Answer, and proved by the Certi­ficate of the Commissioners and divers Witnesses, and the Covetous and uncon­scionable dealing of Allen appearing plainly by the Covenant which they took of Allen, that Allen should pay the overplus of the value of the Land above the 400 l. if they should be sold for more, and the Unchristian and Uncharitable usage of Allen towards the poor Father­less and Motherless Children of Edwards being all Infants, not able to help them­selves considered.

The Lord Chancellor did Decree, thatAgreement De­creed. Allen and the rest should be satisfied with ten Shillings in the pound for their Debts, according to their Agreement, certified by the Commissioners, but no abatement of the 400 l. paid for the Land, nor of the thirty pound paid for the Mortgage; and withall, that Allen should have al­lowance for Costs of Suit, reasonable; and for this purpose his Lordship made a reference to Sir John Tindal to cast upReference to a Master to cast up the Estate and Debts. the Estate of the Bankrupt and the Debts, and to certifie what overplus he found for relief of the poor Children.

Sir John Tindal often heard the Cause, and the Allegations of Allen, and his Councel, and in the end made a certi­ficateThe Masters Certificate. of the Estate Real and Personal of the Bankrupt, and of the Debts, and [Page 189] made all allowances as by the Order was directed, and gave 200 Marks to Allen for Cost of Suit, and 100 Marks to Ha­bersley, and 70 l. to all the Creditors that sued out the Commission of Bankrupt; and for the residue did purpose in his Opinion to be fit that Allen should keep the Land, and pay the overplus of the value of the Land above the 400 l. or depart with the Land to Smith and Boles, who would pay Allen and the other Creditors according to the Report, and yield the overplus to the Children, a­mounting to 600 l. or thereabouts.

The Lord Chancellor, upon reading13 Noc [...]. 1 [...] Jac. the Report, gave time to Allen to make his election, whether he would keep the Land and pay the Mony, or depart with the Land and receive his Mony.

For that Allen made no Election, but insisted upon the advantage, to have the Land for the 400 l. which was worth 2400 l. and would yield nothing to the poor Children, nor to the Creditors, but dealt so mercilesly with them whose Pa­rents lost both their lives in following their Suit to be relieved against Allens Unchristian and Barbarous Dealings.

The Lord Chancellor did make De­cree,Decree that the Trustee should receive his own Mony, and de­part with the Estate. that Allen should receive the Mo­ny mentioned in the Report, which is much more than in Equity is any way due unto him, and convey the Lands to Boles and Smith, two sufficient Men, [Page 190] who would be bound to pay the Credi­tors, and Allen also, and yet pay the overplus being 600 l. or thereabouts, a­mongst the poor Children.

For not performing the Decree Allen is committed.

The pitiful Cries of the Father andTrustee for not performing the Decree, is com­mitted. the Mother dying, as is aforesaid, and of the poor Orphans, do call to God for relief, and moved the heart of the Chan­cellor to take compassion upon them, and to take such order as he hath done.

Note, Where Allen in the Bill of In­dictmentIndictment, for that the Chan­cery decreed Lands after Judgment at Law. setteth forth, that he had two Judgments for his Debt in the Common Pleas, before the Suit in Chancery be­gun, which Judgments he supposeth to be called into Examination by this Suit and Decree in Chancery against him, contra­ry to the Laws and Statutes.

To this it is answered, First, That these Judgments were not alledged by Allen in his own Bill against Edwards in Chancery, nor in his Answer to Edwards Bill, nor in any Replication, Rejoinder, Deposition, Report or Motion in Chan­cery; neither were they so much as spo­ken of or informed to any Councel or others, and there is no Order in Chance­ry concerning those Judgments.

Secondly, That these Judgments to be a year after Edwards became a Bank­rupt, for he was Bankrupt Primo Jacobi, [Page 191] and the Judgments wore Secundo Ja­cobi.

Note, That these Judgments stand in force against the Bankrupts Body, or any Lands or Goods which he should after­wards obtain, and were not disposed by the Commissioners.

Allen himself sued out the Commission of Bankrupt with other Creditors, and was first named in the Petition to the Lord Chancellor for getting the Commis­sion, and attended in person in executi­on of that Commission at all meetings, by which he himself did decline from the strength of his Judgments, and sub­mitted himself to be ordered by the Commissioners for his Debt before any Suit in Chancery begun.

Note, Where Allen by his Bill of In­dictment supposeth his Freehold to be drawn in question in the Chancery, con­trary to the Statute in Magna Charta, it is to be answered, that albeit FreeholdsFreehold Lands ordered in Chancery upon Equity, where the Common Law cannot re­lieve the Par­ties. have been always ordered in Chancery upon Equity, where the Common Law cannot help the Parties, yet in this par­ticular Case it is to be observed, that Allen himself was first Plaintiff in the Chancery, and did draw in question the Freehold which then was in Alderman Boles his Son by a Mortgage forfeited, for which Freehold to be conveyed to himself, he obtained the Decree in Chan­cery, and had it conveyed accordingly [Page 192] upon matter of Equity (viz.) because there was but 30 l. unpaid of the Mort­gage Mony.

Therefore if the Chancery did well when it dealt with the Freehold for Allen; why ought not the Chancery upon a new Matter of Equity, make Decree against Allen to depart with the same Freehold again, when he would have Land worth 2400 l. to the defrauding of Creditors and poor Orphans, and in abuse to the Commissioners of Bankrupts and Court of Chancery.

Of Bills of Conformity.

Because Petitions for Composition are mentioned in the Statutes, I shall here add some Orders made in Chancery about the same, and pub­lished in open Court, Octob. 31. 1620.

THAT no Compulsory Order be granted to Creditors to conform themselves, and agree unto any Rate or Composition at the Suit and Petition of the Debtor or insolvent himself, but on­ly at the Suit of the Creditors, in imi­tation and according to the Equity of the Statute of Bankrupts.

[Page 193]That where such Suits are exhibited in the behalf of the Creditors, it be not enough that the Creditors are na­med in the Bill or Petition; but that there shall be always affixed to the Bill or Petition the agreements of the Cre­ditors under the Hands and Marks of so many as have agreed, with a recital of the Sums and Times of their particular Debts.

That to the end there may be a ground of Information unto the Court, what the Debts are in truth, which otherwise may be but in shew; there shall always be before any Order is granted, a Re­ference made to some of the Masters of the Court, or other Commissioners upon due Examination, to certifie the Court what the Debts are in truth, and of what Nature, and upon what Security; before which Masters and Commissio­ners shall also be heard the Informati­ons and Allegations of such Creditors as have not compounded.

That no release be given upon any Bill or Suits, except the Debts of the Creditors that have agreed, amount at least to full three parts in four, to be divided of the total of the Debts; and not in these Cases neither, but sparing­ly, by the Discretion of the Court, up­on hearing what may be alledged on both sides.

[Page 194]That no Proceedings at Law, in Case of any such Suits be staid against any Sureties of the Insolvent, nor against the Lands or Goods of the Insolvent him­self in case of Recognizances or Statutes, but only against the person of the In­solvent.

It was a Saying of the Lord Chan­cellor Elsmere, that against Usurers, Bankrupts, Perjured Persons, Couseners, &c. Quaelibet presumptio crescit in probati­onem; and that one Proof, with some presumptions, is sufficient to induce him to Decree against such.

CHAP. XVII.

Of Scandalous Words relating to a Mans Trade.

I Shall now add some Cases out of our Books, about Actions on the Case, for calling one Bankrupt, or words to such Effect, by which an honest Tradesman mav know how, and when to punish a Malicious, Scandalous Calum­niator, and one that thinks it a slight matter to stab the Reputation of his Neighbour.

This Action on the Case will lie, for saying of a Merchant, Mercer, Grocer, Shoomaker, Dyer, Weaver, Grasier, Corn­master or Baker in London, a Millener, or any other Tradesman that gets his Living by Buying and Selling, that he is a Bankrupt, Noy 158. Hutton 49. Stiles 75. 1 Boulst. 267. 4 Rep. 19. Croke Eliz. 268. 1 Rol. Abr. 61, Long & Lane, of a Tanner, quaere 11 Brownl. 16.

But to say of a Tradesman, thou owest more than thou art worth, and art not able to pay thy Debts, it's not Actiona­ble, Stiles 213. Q.

Thou art a Bankruptly Knave, or a Bankrupt Knave, is Actionable, 4 Rep. 19. Mittons Case. 2 Bulst. 210. Dyer 72. [Page 196] Croke Eliz. 911. 1 Bulst. 110. Hut­ton 13, 14. dubitatur ibi. Vide Stiles 420. Croke Jac. 345, 578.

He is a Bankrupt Rogue, Actionable, Godb. 152. Croke Eliz. 21. Hutton 52.

He is a Bankrupt Scrub, is actionable, Stiles Rep. 75.

He is a Bankrupt Slave, is Actionable, Croke Jac. 58. Popham 184. But he must be a Tradesman, Croke Jac. 424. Loyd and Pearse.

Thou art a Bankrupt Knave, is Actio­nable. Aliter, Had it been Bankruptly Knave, Croke Jac. 345. Selbys Case. Q.

To say of a Man he will be a Bank­rupt within two days, is Actionable, Dyer 72. 4. Rep. 19.

I will prove that J. S. hath been a Bankrupt, and hath agreed with his Cre­ditors for a Noble in the pound, and I will prove it, Hill. 3 Jas. B. R. Edmonds Case.

I will prove thee a Bankrupt, Action lies. So, I will prove thee a Bankrupt by such a time, 1 Croke 193.

He is a Bankrupt and fled beyond the Seas for Mony, Action lies, Trin. 9 Jac. B. R. Trulocks Case.

He is not worth a Groat, he is a Hundred Pounds worse than nothing, 1 Croke 193, 231. Hutt. Rep. 152. 2 Bulst. 267. Croke Jac. 578. Act. Case lies. Croke Car. 265. Goodears Case.

[Page 197]He is a Bankrupt, and I will drive him out of the Country, Action lies.

Who art thou? A Bankrupt? And wast a Bankrupt, Croke Eliz. 273.

To say of a Merchant he is broken, Action lies, H. 17 Jac. B. R. Johnsons Case.

To say of one that doth Merchandize for Lead in any County, and get his Living by it, he is a Bankrupt and Beg­garly Gentleman, Action lies, 1 Bulst. 41. Huttons Rep. 40.

Words spoken of a Cornmaster or Ba­ker in London, Thou art a broken Fel­low, and hast cheated me of 200 l. Acti­on lies, Stiles 429.

So for this said of a Millener in Lon­don, Thou art in a breaking and decayed Condition, and I will prove it; and if you question me, I will prove it to your disgrace, Stiles 425.

To say of a Merchant that is to have a Trial at Guild-Hall, he is broken, In­nuendo, he is not able to pay for the Wares he bought, and I warrant you he dares not be at the Trial at Guild-Hall, Croke Jac. 562. Action lies.

To say of a Grocer, he is a Beggarly Fellow, and not able to pay his Debts, Action lies, Croke Eliz. 339, 643.

It is said no Action will lie for this, He is a base broken Rascal, and hath broken twice, and I will make him break the third time, Noy 77. B [...]nd. 170. Marshall [Page 198] and Allen, Lach. p. 114. Hills Case. To say he will break shortly, Action lies, by Doderidg, &c.

To say of a Merchant or Tradesman, Trust him not for he will be thy undo­ing, no Action lies, 1 Croke 171. Nor for this, I will sue out a Commission of Bankrupts against J. S. Nor for this, Thou art an Arrant Knave, for thou hast cozened all Coventry, 1 Bulst. 162, 163. Nor for this said of a Merchant, Doth he owe you Mony? Get it quick­ly, and take heed how you trust him, Croke Eliz. 541. Vaspicks Case, 1 Rolls Abr. 61.

If one be a Merchants Apprentice, and he doth Merchandize for another man, and be called Bankrupt; or if one have been a Merchant, and hath given it over, and a man call him Bankrupt; in either of these Cases the Action will not lie, but 1 Rolls Abr. contra, 61. Gray and We­ston; and yet if he have resumed his Trade again, and then be called so, Acti­on lieth, Noy 33. 1 Bulst. 267. For he may trade again, Gardner and Hop­land.

E. a Merchant brought Action against W. for these words, He would prove that Mr. E. had been a Bankrupt, and had a­greed with his Creditors for a Noble in the Pound, it's Actionable, H. 3. Jac. R. B. Rot. 85.

[Page 199] Thou art not worth a Groat, not Actio­nable, P. 15. Car. B. R.

If a man saith to A. who is a Dier, Thou art not worth a Groat, no Action lies for these words; tho' it be averred that in Exeter where the words were spoken, they tantamount to thou art a Bankrupt, 15 Car. B. R. 1 Rol. Abr. 86. Moon and Axe.

If a man saith of a Grocer or other Tradesman, You are a base Beggerly Knave, and are not able to pay your Debts; and avers that according to the phrase and understanding of the place where this was spoken, these words are understood that he was a Bankrupt, Acti­on on the Case lies, P. 11 Car. B. R. Jack­son and Lewis.

Thou art a Cheating Merchant, is Acti­onable, if a Discourse was of his Trade, Trin. 17 Car. Lambell and Hancock.

To say of a Scrivener, he is a broken Runnaway, and dares not shew his Face, it's Actionable, Mich. 13 Car. B. R. Best and Loit.

He is a Broken Rascal, and hath bro­ken twice already, and I will make him break the third time, Action lies not: To say he will break shortly, will bear an Action, but not to say I will make him break, Latch p. 114. Hills Case.

He is gone, and dare not shew himself for Debt, and he is a Bankrupt for ought I know, Action lies, Stiles p. 130, 142. Jones and Jacob.

[Page 200] A. is a Foreman in a Shoomakers Shop, and one saith of him, It is no matter who hath him, for I warrant whosoever hath him, he will cut him out of Doors, Action lies, 1 Rols Abr. 60. Ellis and Hunt.

In an Action on the Case, if the Plain­tiff declare that where he was a Servant to J. S. and as a Journyman to him, sold divers Commodities for his Master truly, and that he gained his Living by his Service; and the Defendant having com­munication of his Sellings, said of the Plaintiff, thou hast cozened me of 5 l. in a piece of Stuff, and hast cozened me of 600 l. more; thou hast maintained thy self and others with my Mony, and thou didst take four or five pound out of the Box, Action lies upon this Declaration, 1 Rolls Abr. 60. Phillips and Ellaker.

In Action on the Case, if the Plaintiff declares he was a Merchant, &c. the De­fendant intending to defame him in his Trade, having communication of his Trade, and of a Partnership between the Plaintiff and J. S. before had in a cer­tain Ship, called B. spake these scanda­lous words of the Plaintiff, He is a Base Cheating Knave, and hath cheated J. S. (the said J. S. innuendo) and I will prove it; for he received of C. in Partnership 20 l. and gave an account unto J. S. pred’ J. S. innuendo) but of 5 l. received of the said C. Action lies, for it digraceth [Page 201] him in his Partnership, which is a part of his Trade as a Merchant, Trin. 15 Car. B. R. Arundel and Masey.

One said of a Tradesman, He is a broken Bankrupt, and a declined man, not able to pay his Debts, and therefore is run the Country; altho' he doth not alledge he used any certain Trade, yet Action lies if he used to Buy and Sell and live by it, 1 Rolls Abr. 60. Boyer and Shale.

One saith of Tradesman, He is a Base Beggarly Fellow, and if he had not had my help, he had not had a bit of Bread to put in his Head, and I have exactly cast up his Estate, he is not able to pay 2 s. 6 d. in the Pound to his Cre­ditors; Action lies without averring any particular dammage, P. 1651. Rooks and Rooks.

These words were spoken of a Mer­chant, He is a Beggarly Fellow and not worth a Groat, and not able to pay his Debts, and goes abroad with his Man double armed for fear of the Bailiffs; but it is not laid, that he continued Merchant at the time of the speaking; but the Court inclined that the words were Actionable, and the Profession shall be intended to continue in him till the contrary be shewn, Siderfin, p. 424. Drake and Hill.

[Page 202]The Plaintiff declares he was a Mer­chant by the space of twenty years, without saying (last past) and that 24 Jac. he goes beyond Sea, and 25 Jac. he returns here from Hamborough, and the Defendant said of him, He came from Hamborough a Broken Merchant; the words were Actionable, and his Pro­fession shall be intended to continue. Locroft and Durnfords Case, cited in Drake and Hills Case.

To say of one, He is a Cheat, is not Actionable; but if the Plaintiff was a Merchant, and the Defendant saith of him, He is a Cheating Merchant, it is Actionable, cited in Sidersin, 433. in Kirle and Osgoods Case.

Per Twisden, cited in Sidersin, p. 434. Lord Peterboroughs Case, it was adjudged 5 Car. that to say, I do not know but that J. S. is a Bankrupt, is Actionable.

The Court conceived these words (Bankruptly Knave) to be Actionable, 1 Keb. 439. Booth and Leech.

Action on the Case was brought for calling one Bankrupt, and upon Gene­ral Issue, found pro Querente, and 150 l. Damages; the Court mitigated it to 50 l. Damages. but after upon great Advice, they Re­voke this, and resolved to leave such Mat­ters of Fact to the finding of the Jury, who know the quality of the Persons and their Estates, and Damages sustained by the Disgrace. Aliter, In an Action [Page 203] which is grounded upon a Cause that may appear to the view of the Court, Palmer, p. 314. Hawkins and Sciet.

If in Trespass, the Defendant justifiesPl [...]z. that the Plaintiff was a Bankrupt, where­by he had a Commission upon the Sta­tute, and those goods were delivered un­to him, whereas the Plaintiff was not any Bankrupt, nor any Commission is­sued, yet the Plaintiff for the words con­tained in the Plea, shall not maintain any Action, Croke Jac. 432. in Weston and Dobniets Case.

Plaintiff Declares, Whereas 1 April 17 Jac. and for divers years before he was a Merchant, that the Defendant the said 1 April 17 Jac. spake these words of the Plaintiff, He is a Bankrupt Slave; the Defendant justifies, because the DefendantJustification. 1 April 15 Jac. became Bankrupt, and therefore he spake these words; Plaintiff demurred, and adjudged pro Querente: the Ba [...] was insufficient, because he doth not alledge that he continued still a Bank­rupt, and without Averment, it shall not be intended that he continued so; for it may be that he afterward recovered him­self, and became a Good Merchant and no Bankrupt, Croke Jac. 578. Upsheer and Betts. By this Case understand the Max­im, Once a Bankrupt, &c.

Action was brought for calling the Plaintiff Bankrupt, and he Declares byDeclaration. the Name of J. E. Mercator, and that [Page 204] he by his Good Name had the Good Will of his Neighbours, ac etiam Emendo & Vendendo he acquired diversa Lucra; Verdict pro Quer’ and Judgment was ar­rested, because it doth not appear by the Declaration, that he got his Living by Buying and Selling, Sidersin, p. 299. Emer­sons Case.

The difference was well taken in Dot­tings Case Noy 33. If a Merchant relin­quish his Trade to live in the Country, in the nature of a Gentleman or a Far­mer; to call him Bankrupt is not Acti­onable; but if afterwards he exerciseth that again, and then is called Bankrupt, an Action then lies.

It is not needful in the DeclarationDeclaration. to say he was a Merchant, but to say he was Tradesman is sufficient, Noy 158. Courtney and Tompson.

Words spoken of a Drover, that he is a Bankrupt, is Actionable, for a Dro­ver is within the Statute of Bankrupts; but because it was not averred, that he was a Drover at the time of the speaking the words, it was held to be ill in Col­lins and Malins Case, Jones Rep. 304 2 Keb. 274. Amersam and Fairfax.

Declaration is, That he got his Li­ving by Buying and Selling, albeit no certain Trade is mentioned, yet the Acti­on for calling him Bankrupt, lay, Bow­yers Case cited, 2. Keb. 274. Amersham and Fairfax.

[Page 205]If one saith of a Man (who by his Trade may become a Bankrupt within the Statutes) that he is a Bankrupt, an Action lies.

Thou art a Bankrupt Rogue, spoken of a Woollwinder, Action lies not, M. 2 Car. B. R. Barker and Ringrose.

By Mr. Justice Wild, in Amson and Blofeilds Case, Carters Rep. p. 214. To say of a Merchant, He hath eaten a Spi­der; with an Averment what the mean­ing is, as much as to say he is ready to burst, is Actionable. Q.

Here I shall add some Special Presi­dents of Actions and Suits at Common Law and in Chancery, by which the Industrious Student may Form and Mo­del his Draughts in Parallel Cases.

Plea to an Indebitatus Assumpsit that it was Assigned by the Commissi­oners of Bankrupts.

ACtia non, quia dicit ꝓtestando quod ipse non assumplit super le modo & forma prout p̄d (Queŕ) versus [...]um quernꝭ protestando etiamProtestation. quod idem H. non suit in [...]evitat p̄fa [...] querenti in aliqna denariorum summa ultra decem & [...]o Libras pront p Billam p̄d superius supponitꝭ ꝓ plito idem H. di [...]it qd sd I [...] existen stiv­ditꝭ natus hujus [...]egni Anglie p di­versos Annos pro [...] ante Fes [...]um Sed Michis Archi Anno negni, &c. 14 fuit communis pandoxa [...]or ac p rotum idem tempꝰ victum & facultatem su­am vivendi quesivit Et idem Iac sic negotians & victum suum querens infra tempus illud apud D. p̄d in Com K. sd devenit indebitatꝭ quibusdam I. H. & I. B. & alijs Creditoribꝰ suis existen subditis natis hujus Regni Anglie in diversis denariorum su [...]is attingen in toto ad sum̄am 200 l. lega­lis, &c. & amplius qd (que) idem Iac sic idebitatꝭ existen infra tempꝰ p̄d selt 1 Die Maij Anno, &c. xiij incepit eu­stodire Domum suam Mansional apud D. p̄d & Latitare ꝓ timore Arresta­c̄onis ꝓ debis p ipsum Iac p̄far I. D. [Page 207] & alijs Creditoribꝰ suis debi [...] Et si­milit Act of Bank­rupts denial. adtunc dedit mandatum servien suis negare Creditoribꝰ suis ipsum p̄d I. esse in ead Domo sua quando fuit intus in ead ad ꝓerastinand debirores suos de veris & justis Debis suis eis p p̄d I. adtune debit & insolu [...] Ac ra­tione pmissor (rum) idem I. pd [...] die Maij Anno, &c. xiij supradict apud I. p̄d in poch & warda p̄d debitis suis pdc̄is tunc minime solut existen manifeste devenit & adhuc existit decoctor Ip­so [...] I. sic decoctor̄ existen postea scilt 28 die Octob Anno Regni, &c. xiij. su­pradicto apud Wes [...]m in Com Midd & ad Petitionem p̄dic̄o (rum) I. H. & I.Petition. D. E. Com̄it C. tum & adhuc Dom Cancellario Anglie facc & exhibit ꝓ remedijs suis verlus p̄fat I. tunc ex­isten decoctor̄ in hac parte habend ijs­dem I. I. & ceteris Creditoribꝰ p̄d I. de debis suis p̄d tunc minime sa­tisfact quedam Commissio dicti DomCommission. Regis super Statur contra Decocto­res edit & provis sub Magno Sigilla dict Dom Regis sigillat & hic in Cu­ria ꝓlac geren dat apud Westm p̄d eijsdem die & Anno quivusdam I. P. R. A. Ar̄ R. B. W. B. & N. S. di­rect fuit p quam quidem Com̄issionem dictꝰ Dominus Rex tunc dedit plenam potestatem & authoritatem p̄d Com­missionar̄ quatuor vel tribꝰ corum quo­rum idem Dominus Rex p̄d I. P. [Page 208] vel R. A. unum esse voluit juxta s [...] ­palia Statuta de Decoctoribꝰ in hu­jusmodi Casu edit & provis in dicta Com̄issione menc̄onat non solum con­cernen, &c. ꝓut supra (omitta) tan­tum hec verba, & alterius eorum) us (que) ꝓut p eandem Commission plenius apparet Virtute cujus quidem [...]om­missionis Et vigore Statutorum p̄di­ctorum p̄d, I. &c. tres Com̄issionar de Com̄issionar p̄d accept super se onere execucon Commissionis p̄d super ma­turam deliberationem inde capt ꝓ re­medio Creditorum p̄d postea sclt 10 die Nov. Anno Regni, &c. xjv supradict apud London p̄d in poch & warda p̄d inven [...]runt p̄d Iac ante emanac̄onem Com̄issionis pd devenisse & fuisse deco­ctoremCommissioners find him a Bankrupt. ad omnia intentiones & ꝓposi­ta infra ꝓvision & intencon Statu­to (rum) pdict ac diversa deba & denario­rum summas fore tune debita & pti­nen Statuti p̄d Iacobi a sepalibꝰ p­sonis Et postea selt eisdem die & An­no apud London p̄d in poch p̄d ijdem tres Commissionarij p quandam In­denturam suam assignationis inter ip­sosAssignment of Debts. I. &c. ex una parte & pd I. H. & I. O. ex altera pte fact cujus alte­ram ptem Sigillis p̄d I. P. &c. sigil­lat idem H. hic in Curia p̄fert cujꝰ dat est ijsdem die & Anno quantum in ipsis fuit & Legitime potuerunt assig­naverunt & transposuerunt p̄d I. H. [Page 209] & I. B. omnia & singula separalia debita & denar̄ summas pticulariter & experss̄ menc̄onar in quadam Sche­dula sive Inventorio indentat eid In­dentur̄ annex’ & onerabi [...] debit p pso­nas in dicta Schedula nominat vel aliquam eorum tunc debit p̄dicto I. ha­bend & tenend (Anglice sue forth) re­cuperand recipiend possidend & gau­dend omnia & singula debita & dena­riorum summas in dicta Schedula ex­pressa Ac omnia alia debita ꝑ cand Indenturam assignat & quamlibet p­tem inde ipsis dictis I. H. & I. D. Executoribꝰ Administratoribꝰ & Assig­nat suis & cuilibet eo (rum) ut eorum ꝓ­prium statum imppetuum In qua quidem Schedula inter alia contine­tur quod decem & Octo Libre fuer̄ debit & ptinen status p̄d Iac p ipsum H. prout p candem Indenturam & Schedulam p̄d hic in Curia ꝓlar ple­niꝰ apparet Quorum p̄textu idem H. onerabilis devenit & adhuc existit ad solvend p̄fat I. G. & I. D. omnia de­bita & denariorum sum̄as p ipsum at debit Statui p̄dicti Iacobi. Et hoc, &c. unde, &c.

Plea to Bond for performance of Cove­nants (or Articles) for payment of Rent, that the Plaintiff was a Bank­rupt, and that the Defendant paid the Mony to the Assignees of the Com­missioners of Bankrupts.

QUibꝰ l [...]ct & auditis idem Det [...] ­cit qd p̄d Quer̄ Actionem suam p̄d inde versus eum habere seu manutenere non debet quia dicit quod Articuli p̄dc [...] in Condic̄one p̄d (reci­ting the Articles) prout ꝑ Articulos pdictos inter alia plenius liquet & ap­paret Et quoad p̄d xxijl. in Articu­lis p̄d menc̄onat fore solvend p ipsum H. p̄fat R. ad finem p̄dc [...] termin sex Anno (rum) Idem H. ulterius dicit quod post confection script obligatorij p̄d & Articulo (rum) p̄d & ante p̄d finem & expi­rationem p̄d termin sex Annorum sclt decimo septimo die Iulij Anno Reg­ni p̄d nuper Dom Regis sex to decimo apud Civitar Exon p̄d p̄d R. indebi­tatus fuisset euidam M. B. ac diver­sis alijs psonis Creditoribꝰ p̄d R. (ex­isten subdit nar infra hoc Regnum Anglie) in diversis seperalibꝰ dena­riorum summis in toto se Attingen ad Mille Libras Legalis Monete An­glie ipso (que) S. sic indebitat existen idem R. postea sclt 17 die Iulij Anno [Page 211] Regni dict Dom Regis nunc 16 sup̄ ­dicto ijsdem Creditoribꝰ de debitis su­is minime satisfact existen apud Ci­vitat Exon p̄d pro debito Arrestat [...]uit Et super Arrestationem p̄d ad prisonam dicti nuper Regis apud Ci­vitat Exon p̄d ductus fuisset Et ibi­demAct of Bank­rupcy remain­ing two Months in Pri [...]on. in Prisona p spatium duorum mensium tunc prox’ sequen & amplius remansit ad intentionem defraudand Creditores suos p̄d de debitis suis p̄d ꝑ ipsum R. sic ut p̄fertur debit Et su­perinde postea sclt 1 die Octo [...] An̄o 16 supradict apud Civitar Exon p̄d I­dem R. devenit decoctor (Anglice be­came a Bankrupt) infra Statut con­cernen decoctores nuper edit & provis̄ Quod (que) p̄d R. p̄dicto tempore quo ut p̄fertur de [...]enit decoctor fuisset subditꝰ p̄d nuper Dom Regis natus infra hoc Regnum Anglie videlt apud Civitat Exon p̄d Et adtunc & ibid & p mul­tos Annos tunc ulterius elapsos que­rebat victum suum p viam Emendi & Merchandizandi Et ulteriꝰ idem H. dicit quod superinde post [...]a sclt 17 die Febr̄ Anno 16 supradict apud Westm in Com Midd ad Petitionem p̄d M. & aliorum Creditorum p̄d R. E. D. Mil adtunc Dom Custodi Magni Si­gill Anglie ante tunc exhibit & fac [...] ꝓ remedijs suis versus p̄d R. tunc existen decoctorem (Anglice became a Bankrupt) in hac parte habend p̄fat [Page 212] M. & ceteris Creditoribꝰ p̄d R. de de­bitis suis p̄d tum minime solut sive satisfact existen quedam Commissio p̄d Commission. nuper Dom Regis super Statut con­tra decoctores (Anglice Bankrupts) Edit & ꝓvis̄ sub Magno Sigillo dicti nuper Domini Regis Angli [...] sigillat geren da [...] apud Westm p̄d p̄d 17 die Febr̄ Anno 16 supradict dilectis & fidelibꝰ dict nuper Dom Regis I. N. R. S. &c. direct fuit p quam quidem Com­missionem dictꝰ nuper Dom Rex per­pendens debitam executionem tam Statut tangen ordines pro decoctoribꝰ (Anglice Bankrupts) in Parliamento incept tent apud Westm p̄d scdō die Aprilis Anno Regni p̄charissime So­roris [...]d [...] nuper Dom Regis Dn [...] Elizabethe nuper Regine Anglie 13 edit & probis̄ quam etiam Statut edit in Parliamento incept & tent apud Westm p̄d 19 die Marcij Anno Reg­ni Dom Ia [...]obi nuper Regis Anglie primo [...]oti [...] 37 Intitulat Actus ꝓ meliori relevamine Creditorum versus tales qui deven deco [...]tores dedit ple­nam potestatem & authoritatem ijsdem quin (que) Commissionar̄ quatuo [...] vel tribꝰ eo (rum) quorum p̄d’ I. N. vel p̄d’ W. R. unus esse voluit juxta eadem Statuta & utrum (que) eorum non solum concernen p̄d’ decoctorem corpus ejus terras li­beras (Anglice Freehold) & cus [...]um [...] (Anglice Copyhold) bona debita & alia [Page 213] quecun (que) sed eciam concernen omnes alias ꝑsonas que ꝑ concelamentum clameum vel alteri offenderent tangen p̄miss̄ vel aliquam partem inde contra intenc̄onem & ꝓposit p̄dicto (rum) Statuto­rum vel alteriꝰ eorum ad faciend’ & exequend▪ omnes & quas [...]ibet rem & res quascun (que) tam erga & ꝓ satisfacti­one & soluc̄one p̄dictorum Creditorum quam erga & ꝓ omnibꝰ alijs inten­tionibꝰ & propositis secundum ordina­tionem & provisionem eorundem Sta­tutorum vel alterius [...]orum p quam quidem Commissionem dictus nuper Dominus Rex voluit & dedit in man­datis p̄dictis Commissiona [...] quatuor vel tribꝰ [...]orum quorum p̄d’ I. N. &Quorum. W. R. unum esse voluit ad ꝓcedend’ ad executionem & accomplement pdict Commissionis secundum veram inten­tionem & proposit eorundem Statuto­rum & alterius eo (rum) [...]um omni dili­gentia & effectu secundum specialem fi­duciam dicti nuper Dom Regis in ijsdem Commissionar̄ r [...]posit prout p eandem Commissionem plenius appa­ret Virtute [...]ujus quidem Commissi­onis a [...] vigore Statutorum p̄dicto (rum) p̄d’ I. N. &c. tres Commissionarij p̄d’ postea sclt 9 die Nov. Anno Regni nu­per Regis Caroli 17 apud Civitat Exon p̄d’ in debita juris forma ad­judicaverunt & declaraverunt ipsumCommissioners adjudge him a Bankrupt. st. esse decoctorem infra Statut p̄d’ [Page 214] Et adtunc & ibidem concesserunt as­signaveruntAssign the Debts. & posuerunt p̄dictam sum­mam xx l. in Articulis p̄dictis supe­rius menc̄onat fore solvend’ p̄fat R. p p̄d’ H. inter alia p̄fat M. tunc un Creditorum p̄d’ R. existen scdm for­mam Statut p̄d’ Et idem H. ulteri­us dicit quod ipse idem H. omnes alias convenc̄ones in Articulis p̄dict menc̄onat ex parte ipsius H. ꝑformand’ & custodiend’ a tempore confectionis scripti obligatori j & Articulorum p̄dictorum hucus (que) bene & fidelit ꝑim­plevit & custodivit scdm formam & effectum scripti obligatorij Et Arti­culorum p̄dictorum Et hoc, &c. unde, &c. Cum hoc qd’ idem H. veri [...]icare vult quod p̄d. P. W. adhuc superstes & in plena vita exis [...]it videlt apudAverment. Com Exon pd’, &c.

Scire Fac’ pro Creditoribus sur Stat’ de Bankrupts sur Judgment recuper’ per le Bankrupt envers Executrix.

CArolus, &c. Vic [...]anc salutem Cum T. S. alias scilt Termino Sct Mich An̄o Reḡ nostri scdō coram R. H. Mil F. H. Mil. G. C. Mil & H. Y. Mil tunc Iusticiarijs nostris de Banco apud Westm ꝑ Iudici [...] ejus­dem Curie re [...]uperass versus A. B. Vid ꝑ nomen A. B de C. in Com p̄d Executricis Testamenti R. B. MilJudgment. nuper, &c. tam quoddam debitum 400 l. quam 50 s. que eid T. S. in ead Curia nostra adjudicat fuer̄ pro dam­nis suis que huit occasione detentionis debiti illius si ead A. tanta Bona & Catalla que fuer̄ p̄d R. tempore mortis sue in Manibꝰ suis Administrand ha­buisset & si non huisset tunc damna pdca de Bonis & Catallis p̄d A. pro­prijs levand unde convict fuit prout ꝑ record & process̄ inde in ead Curia no­stra residen liqu [...]t manifeste Cum (que) superinde postea scilt Termino Sc [...] M. Anno Regni nostri quarto in p̄dict Curia nostra de Banco ꝑ tunc Ius [...]ici­arios nostros ibid conc fuisse quod p̄d T. S. heret executionem ver [...]us p̄fat [...] A. de de [...]o & damn p̄dict de Bonis & Catallis p̄d in forma p̄dict levand p [Page 216] ipsius A. defalt prout ꝑ record Et ꝓ­ [...]s [...] in ead Curia nostra re [...]den siliter liquet manifeste Cum (que) etiam p̄d T. S. ꝓ citiore executione judicij pd hend in p̄dict Termino Sc [...] M. Anno quar­to supradict scilt 9 die Oc [...]ob isto eod Termino ꝓsecut fuiss & impetrasset extra p̄d Curiam nostram de B. p̄d apud Westm p̄d quoddam breve no­strum de Fi. Fa. tunc Vic K. directFi. Fa. quod quidem bre nos precepimus quod ipse de Bonis & Catallis que fucr̄ p̄d R. B. &c. in manibꝰ p̄fat A. B. &c. fieri faceret tam p̄d debitum 400 l. (ut in Fi. Fa. us (que) unde convict’ fuit) Ad quem diem coram disdem tunc Iusdi­ciarijs apud Westm venit p̄d T. S. ꝑ I. H. tunc Attornat suum Et tuncRetorn▪ Vic (videlt) C. C. Mil tunc mand Iusticiarijs nostris apud Westm p̄d qd p̄d A. nulla huit Bona seu Catalla in Balliva sua que fuer̄ p̄d R. tempo­re mortis sue in manibus suis Admi­nistr̄ unde debitum & damna p̄dca sive aliquam inde pcel ullo modo fieri facere potuit Et qd p̄d A. nulla huit Bona seu Catalla sua ꝓpria in Ballia sua unde damna p̄d seu aliquam inde pcell fieri facere potuit Super quo Testatum fuit in ead Curia nostra ex [...]te ipsius T. S. quod p̄d A. satis ha­ [...]uit de Bonis & Catallis que fucr̄ p̄d R. tempore mortis sue in manibꝰ ipsiꝰ▪ A. Administrand infra libertat quin (que) [Page 217] portuum unde debitum & damna p̄dca fieri & levare potuit super quo p̄d T. S. p̄dcō Termino Sc [...] M. scilt 6 die N. Anno quarto supradict ꝓsecut fuit extra p̄dcam Curiam nostram de Ban­co p̄d quoddam bre nostrum de Testat’Testatum Fi. Fa. al’ cin (que) Port▪Fi. Fa. tunc Constabulario (ut supra us (que) direct’) ꝑ quod quidem breve nos p̄fat Constabulario, &c. p̄c [...]pimꝰ quod ipse de Bonis & Catallis que fuer̄ p̄fat R. B. nuper dict▪ &c. in manibꝰ p̄fat A. ꝑ nomen, &c. Executricis Te­stamenti p̄fat R. existen infra liberta­tes quin (que) portuum fieri facerent tam p̄d dibitum 400 l. (ut in communi Fi. Fa. us (que) unde convict fuit) Quod qui­dem breve postea & ante retorn br [...]vis illius scilt 10 die p̄d Mensis Novem­bris Anno Regni nostri quarto p̄no­bili Theophilo Comiti Suff. tunc &Retorn del Constable de Dover Castle. adhuc Constabulario p̄d Castri Dov [...]r̄ ac custod quin (que) portuum p̄d & mem­brorum eorundem in forma juris exe­quend deliberat fuisset Ad quem diem scilt a die Sc [...] Martini, &c. coram ijs­dem tunc Iusticiarijs nostris apud Westm p̄d venit p̄d T. S. ꝑ Attornat suum p̄dcum Idem (que) T. Comes S. tunc Iusticiarijs nostris p̄dict apud Westm p̄d ad diem il [...] mand quod p̄d A. B. nulla huit Bona seu Catalla que fuer̄ p̄d R. B. tempore mortis (ut supra us (que) facere potuit) quod (que) ead A. ante adventum brevis istius sibi direct [Page 218] quedam Bona & Catalla que [...]uer̄ p̄d [...]. tempore mortis sue ad valentiamDevastavit. 100 l. devastasset Et in usum suum ꝓprium convertisset Et ulterius Iu­sticiarijs nostris certificat quod p̄d A. nulla huit Bona seu Catalla sua ꝓpria unde damna p̄d seu aliquam inde pcel [...] fieri facere potuit prout p breve & retorn inde in dicta Curia nostra de Banco pd residen liquet ma­nifeste Cum (que) p̄d T. S. iij die Maij Anno Regni nostri sexto indebitat fu­isset cuidam W. N. Gen in summa 88 l. & 7 s. solvend eid W. cum inde requisitus fuisset Ac etiam cum p̄d T. S. adtune indebitat fuisset cuidam W. M. Gen in summa 34 l. solvend eid W. M. cum inde requisitus fuisset Ac eciam cum pd T. S. p̄ [...] iij die Maij Anno Regni nostri sexto supra­dict indebit fuisset cuidam R. S. in summa 45 l. solvend eid’ R. S. siliter cum inde requisitꝰ fuisset eisdem W. N. W. M. & R. S. tunc existen sub­ditis natis Regni nostri Anglie Ac eciam cum p̄d’ T. S. adtunc indebi­tat fuisset diversis alijs psonis Cre­ditoribꝰ ipsius T. siliter existen subdi­tis natis Regni nostri Anglie in di­versis alijs denariorum summis in to­to se attingen and 5013 l. & 12 s. Le­galis Monete Anglie Ipso (que) T. S. sic indebitat existen ac p̄dict 100 l. ꝓ valore Bonorum & Catallorum que [Page 219] fuer̄ [...]fat R. B. tempore mortis sue p pd’ A. ut p̄fertur devastar dicto T. S. minime solut sive levat existen Idem T. S. postea scilt ij die Iunij Anno Regni nostri sexto supradicto apud Maidstone p̄fat W. N. W. M. & [...]. S. ac ceteris Creditoribꝰ [...]dc [...] T. S. de debitis suis p̄ [...] ’ minime solut existen Act del Bank­rupcy. incepisset custedire Domum suam ibid’ existen ad intentionem defraudare Cre­ditores suos p̄dictos de debitis suis eis ut p̄fertur p p̄d’ T. S. d [...]bit Et superinde eod’ ij die Iunij Anno sexto supradict apud M. pd’ manifeste deve­nit Decoctor (Anglice a Bankrupt) Qui quidem T. S. [...]dcō tempore qu [...] ipse devenit Decoctor fuit & adhuc est subditꝰ natus hujus Regni A. apud M. p̄d’ & adtunc & p nonnullos An­nos ante tunc apud M. p̄d’ usus fuit Arte seu Misterio Brasiatoris & que­rebat facultatem suam Divendi p vi­am Emendi & Dendendi Ac cum po­stea scilt xjx die Auḡ Anno Regni no­stri septimo apud M. pd’ ad Petitio­nemPetitio. p̄dicto (rum) W. M. W. N. & R. S. & alio (rum) Credito (rum) p̄d’ T. S. Thome Dnō Coventry Dnō Custod’ Magni Sigilli Anglie exhibit & fact pro re­medijs luis versus p̄fat I. S. tunc existen Decoctorem in ea pte hend’ eis­dem W. N. W. P. & R. S. tunc mini­me solut aut satisfact existen quedam Commissio nostra super Statut contraCommiss [...] [Page 220] Decoctores edit & provi [...] sub Magno Sigillo nostro Anglie sigillat in Cu­ria nostra [...]d’ coram p̄fat Iusticiarijs nostris apud Wes [...] de B. p̄d’ ꝓlat geren dat apud C. in Com p̄d’ Midd’ p̄d’ xix die Au [...] Anno septimo supra­dict [...]ui [...]sdam E. D. Mil P. P. Armiḡ T. B. Arm W. H. Gen & A. P. Gen spial Commissionar̄ nostris & de­dimus plenam potestatem & authori­tat eisdem Commissionarijs quatuor vel tribꝰ eorum quorum p̄d’ P. P. aut p̄d’ T. B. unum esse volumus juxta [...]eperal Statut de Decoctoribꝰ in hu­jusmodi casu cdit & ꝓvi [...] in dicta Commissione men [...]onat & quodlibet vel ullum eor (rum) non solum concernen corpus ipsius T. S. Decoctoris Ter­ras Tenementa libera & custumaria Bona Debita & alias Res quascun (que) verum eciam concernen omnes alias psonas quascun (que) que p concealamenta vel aliter offenderent tangen pdca p̄missa vel aliquam ptem inde contra veram intentionem & ꝓposit p̄dicto (rum) Statuto (rum) & eo (rum) cujus [...]ibet vel ali­cujus corum ad faciend’ & exigend’ omnes & quas [...]ibet r [...]m & r [...]s quas­cun (que) tam erga & ꝓ soluc̄one & sa­tisfactione p̄dictor (rum) Creditorum quam erga & pro omnibus alijs intenti­onibꝰ & ꝓpositis scdm provisionem & ordinationem eorundem Statutorum p quam quidem Commission nos volu­mus [Page 221] & dedimus in mandatis qd’ p̄dict Quorum. Commissionarij vel quatuor vel t [...]e [...] eo (rum) quorum pd’ P. P. aut p̄d’ T. B. unum esse volumus ad ꝓcedend’ ad ex­ecutionem & perimpletion Commissi­onis p̄d’ cum omni diligentia & effectu scd [...] fiduciam nos [...]ram in [...]is reposit ꝓut p eandem Commissionem pl [...]nius liquet & apparet Divtute cujus qui­dem Commissionis ac vigore Statu­torum p̄dicto (rum) [...]dict P. P. T. B. W. H. & A. P. juxta Officia sua obliga [...] cum omni diligentia ad optima [...] Sci­entiam Artem & Industriam eorum Commission p̄d’ ex [...]qui pformare & perimplere diversis sepera [...] temporibꝰ in ead’ ꝓcedebant a [...] Testes ead’ tan­gen diligen [...] & intente examinavcr̄ ac p easdem examinationes iij die M. Anno Regni nostri septimo apud M. p̄d’ invener̄ p̄d’ T. S. fore Decoctorem infra ꝓposit & intentionem Statut [...]d’ & sic fore & devenire ratione evitatio­nis & absentionis ipsius T. S. ab Ar­rest Creditorum suorum & custoditio­nis Domus ipsius T. ob metu Ar­restac̄onis ad s [...]cta diversorum Credi­torum suorum ꝓ veris & justis debitis ꝑ ipsum debit Ac c [...]iam pro [...]o qd’ Absentin [...] p̄dict T. S. occulte & s [...]cre [...] a D [...]mo sua Mantionali decessit p secret fuga­tionem in ptes ultra Mare & absen­tationem sui ipsius extra hoc signum ꝓ debitis ipsius T. S. p ipsum tunc [Page 222] & p̄d’ iij die M. Anno septimo sup̄dict verment. dibit Ipsi p̄d’ T. B. W. H. & A. P. virtute Statut & Commission p̄d’ de & pro Causis supradictis p̄d’ iij Die M. Anno septimo supradict apud M. p̄d’ declaraverunt & adjudicaverunt p̄d’ T. S. fore Decoctorem a primo die I. Anno Dom 1630. supradict & sic fuisse & semper ab e [...]d’ primo die I. conti­nuasse eciam ubi p examinationis ap­paruisse p̄d’ T. B. W. H. & A. P. Com­missar̄ p̄d’ [...]d’ p̄d’ T. ante p̄dice diem I. & continue postea fuit p̄d’ iij die M. Anno septimo supradict extitit ve­re indebitat p̄d’ seperalibꝰ psonis & a [...]iqui querebant relevac̄onem p Com­mission p̄d’ & contribuere erga custa­gia ꝓsecutionis & executionis ejusdem Commissionis in sepera [...] denariorum summis in toto se attingen ad 5013 l. & 12 s. ultra 40 l. expendit p easdem [...]sonas in custaḡ circa ꝓsecution & ex­ecution Commissionis p̄d’ Ac eciam ubi p examinationem p̄d’ apparebat p̄d’ T. B. W. H. & A. P. quod p̄d’ T. S. p̄dict primo die Iunij Anno Dom 1630. supradict & diu ante & postea fuit & p̄d’ iij die M. Anno septimo su­pradic [...] existit seisitꝰ in Dominico suo de Statu Hereditario de & in uno Mesuagio, &c. Ac eciam ubi appa­rebat p̄fat T. B. W▪ H. & A. P. Com­missionarijs p̄d’ qd’ p̄d’ summa 100 l. ꝓ valore Bonorum & Catallorum p̄d’ [Page 223] p p̄fat A. sic ut pfertur devastat tunc debit fuit p̄fat T. S. a p̄fat A. B. p̄dc [...] T. B. W. H. & A. P. pro dand’ satisfactionem p̄dictis seperalibꝰ per­sonis Creditoribꝰ p̄fat T. S. ꝓ debitis suis pdictis & ꝓ ulteriori executioneAssignment Enrolled. Statut & Commission p̄d’ ꝓ & in con­sideratione summe 360 l. Legalis Mo­nete Anglie ipsis p̄fat T. B. W. H. & A. P. ꝑ p̄fat T. G. solut iij die Maij Anno [...]egni nostri septimo su­pradict apud M. pd’ inter ipsos T. B. W. H. & A. P. p nomina, &c. ex una [...]te & pfat T. G. p nomen, &c. ex al­tera parte factam cujus alteram par­tem sigillis pd’ T. B. W. H. & A. P. signat & in Cancellaria nostra infra sex Menses tunc postea de recordo ir­rotulat geren dat eisdem die & Anno idem T. G. hic in Curia nostra pd’ coram Ius [...]iciarijs pd’ p̄fert dederunt & concesserunt pfat T. G. totum Sta­tum jus titulum & interesse, &c. Ac ec [...]am [...]dc [...] T. B. W. H. & A. P. Com­missionarij pd’ p Indentur̄ suam pd’ assignaverunt & trans [...]ulerunt pfat T. G. Executoribꝰ & Administratoribꝰ suis pd’ debitum sive summam 100 [...]. pd’ T. S. p pfat A. B. ut p̄fertur in­vent esse debit ac omne legale [...]icun (Anglice Interest Mony) & alia bene­ficium & ꝓ [...]ic [...]um ꝓveni [...]n vel surgen ex inde au [...] superinde debit ꝓut p In­denturam pd’ inter alia plenius liquet [Page 224] & apparet Et idem T. G. in factoDevastatio. dicit [...]d’ pd’ debitum sive sum̄am 100 l. per Commissionarios pdict ut pfertur invent esse debit & insolut p pfat A. B [...]d’ & p eosdem Commissionarios pd [...]ct [...]. [...]. ut pfertur assignat & pd’ 100 l. ꝓ valore Bono (rum) & Catallo (rum) pd’ [...]. B. tempore mortis sue que pfat Constabular̄ Castri Dover̄ & Custos quin (que) Port [...]um pd’ ut pfertur retorna­vit super p̄dcō brevi de Fi. Fac. quod p̄dict A. B. ut pfertꝭ sunt unum & idem deb [...]um & non aliud ne (que) diver [...] [...]uod (que) idem debitum sive sum̄a 100 l. adhuc totaliter̄ insolut existit & assig­na [...] fuit in forma pdict pdcō T. G. Et ulte [...]iꝰ quod pd’ Dna Bingly Did’ in pd’ Indentura Assignac̄onis mentio­nat A verment. & pd’ A. B. in p̄dcō brevi de testat Fi. Fa. & retorn inde nominat modo defende [...]s sunt una & ead’ psona & non ali [...] [...]c diversa ꝓut ex insinuac̄one pd’ T. G. assignat debi [...] p̄d’ T. S. Decocto­ris s [...]dm formam Statut de Decocto­ [...]ꝰ (Anglice Bankrupts) in ea parte ꝓv. [...] accepimꝰ Et quia volumꝰ, &c. [...] [...]os, &c. si quid, &c. quare pd’ T. G. ex [...]utionem verlus eam de pd’ 100 l. ꝓ valore Bono (rum) & Cattalo (rum) que fuere R. B. tempore mortis sue p pd’ A. ut p̄fertur devastat p̄fat T. G. p pd’ Com­missionarios in forma p̄d’ assign here non debeat juxta formam Leges & Stat [...]dict si, &c. Et habeas, &c.

An Indenture of Assignment by the Commissi­oners of Bankrupts.

THIS Indenture made, &c. in the Third Year of the Reign of our Sovereign Lord and Lady William and Mary, by the Grace of God of England, Scotland, France and Ireland King and Queen, Defenders of the Faith, &c. Be­tween A. B. Esq; C. D. Gent. and E. F. Gent. of the one part, and T. R. of Lon­don Stationer, of the other part. Where­as the King and Queens Majesties Commission, under the Great Seal of England, grounded upon the several Sta­tutes made concerning Bankrupts, bear­ing date at Westminster the, &c. day of, &c. last past, hath been awarded against Elizabeth K. of, &c. in the County of, &c. Chapwoman, and directed to the said A. B. C. D. E. F. together with W. B. Esq; and J. G. Gent. thereby giving full Power and Authority unto the said Commissioners, four or three of them,Commission. whereof the said A. B. or W. B. to be one to execute the same; As by the said Commission, relation being thereunto had, the same doth, and may more fully and at large appear. And Whereas the said Commissioners, Parties to these Pre­sents, or the major part of the Commissi­oners by the said Commission authorised, having begun to put the said recited [Page 226] Commission in Execution, upon due ex­amination of Witnesses, and other good proof upon Oath before them taken, do find that the said E. K. hath for the space of six years last past, or thereabouts, used and exercised the Trade and Profession of a Milliner or Country Mercer, in Buy­ing and Selling of Silks, Stuffs and other Wares and Commodities belonging to her said Trade, at her House and Shop in C. aforesaid; and sought and endea­voured to get her Living by Buying and Selling, and that she the said E. K. so seek­ing and endeavouring to get her living by Buying and Selling, during the time of her said Trading and Dealing, did become just­ly and truly indebted, and still doth owe and stand indebted unto the above na­med T. R. and others her Creditors in the sum of Three Hundred Pounds of Lawful Mony of England, and upwards;Become Bank­rupt. and being so indebted, she the said E. K. did in the judgment of the said Com­missioners, Parties to these Presents be­come Bankrupt to all intents and pur­poses, within the Compass, true intent and meaning of the several Statutes made concerning Bankrupts, or within some, or one of them, before the date and su­ing forth the said Commission. And Whereas also the said Commissioners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, having also found out and discovered, that the said [Page 227] E. K. at the time, and since she became a Bankrupt, as aforesaid, was possessed of, and interested in divers Goods, Wares and Merchandises, Houshold-stuff and Implements of Houshold, Bedding, Lin­nen, Brass, Pewter and other Commodi­ties; and that other Goods of hers wereGoods. removed and come to the Hands, Cu­stody and Possession of divers and sun­dry Persons, since the time as she the said E. K. became a Bankrupt, as afore­said, and such Goods being returned, and the same, and all other the Goods, Wares and Merchandizes Houshold-stuff and Implements of Houshold, and other Commodities remaining in the House and Shop of the said E. K. were seisedSeised. by vertue of the Commissioners Warrant, and the same being so seised, the Com­missioners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, caused such Goods, Wares, Merchandizes and Commodities to be inventoried and duly appraised by honest Men of Skill andAppraised. Judgment, who did value and apprise such Goods, Wares and Merchandizes, Hushold-stuff and Commodities, at the full values as by the particular Invento­ry and Appraisment sent unto the Com­missioners may appear. The value whereof in the total amounted unto the sum of 248 l. 17 s. of Lawful Mony of England. And Whereas the said T. K. [Page 228] hath since sold and disposed of all the before-mentioned Goods, Wares and Commodities, at the full values mentio­ned and expressed in such Appraisment, unto several persons, some whereof are paid for, and others as yet unpaid for, and owing upon Securities. And they the said Commissioners, Parties to these Presents, do further find, that there are divers Debts, sum and sums of Mony due and owing unto the said E. K. and her Estate by, and from divers and sun­dry persons, the particulars of which said Debts, and the several and respe­ctiveBankrupts Debts. persons names that do severally and respectively owe the same, are men­tioned, set down and expressed in a Sche­dule, indented to these Presents annexed. Now this Indenture witnesseth, That the said Commissioners, Parties to these Presents, by form and vertue of the said Commission, and the several Acts of Par­liament therein mentioned and expressed, and also for, and in consideration of the Covenants herein, after on the part and behalf of the said T. R. his Heirs Exe­cutors and Administrators covenanted to be performed and done, Have Order­ed, Assigned and set over, and by these Presents do as much as in them the said Commissioners lieth, and they lawfully may, Order, Assign and set over unto theThe Assign­ment. said T. R. the before-mentioned sum of 248 l. 17 s. and every part and parcel [Page 229] thereof, being the same Monies raised and advanced by sale of the afore-men­tioned Goods, Wares and Merchandizes so belonging and appertaining to the said E. K. and her Estate, as before is expressed, and also all the Debts, sum and sums of Mony mentioned and expressed in the said Schedule an­nexed; and all other Debts due and owing unto the said E. K. by, and from the persons therein named as Deb­tors. To have and to hold the said sum of 248 l. 17 s. and every part thereof; and also the said Debts, sum and sums of Mony so mentioned, set down and expressed in the said Schedule annexed, and all other Debts, sum and sums of Mony whasoever, due and owing to the said E. K. and her said Estate, by, and from the respective persons therein na­med and mentioned as Debtors unto the said T. R. his Executors, Admini­strators and Assigns for evermore. In trust nevertheless, to, and for the use and behoof herein after mentioned and ex­pressed (that is to say) in trust to, and for the use, benefit, behoof and advan­tage of the said T. R. and all other the Creditors of the said E. K. who have already sought, or shall hereafter in due time come in as Creditors into the said Commission, and seek relief thereby, and contribute to the Charges therof, ac­cording to the Direction and Limita­tion [Page 230] of the several Statutes in that behalf made and provided, and to, and for none other use, intent or purpose whatsoever. And the said T. R. for himself, his Heirs, Executors, Administrators and As­signs, doth Covenant, Promise, GrantCovenant to sue for the Debts. and Agree to, and with the said Com­missioners, Parties to these Presents, and to, and with every and each of them, in Manner and Form following (that is to say) that he the said T. R. his Heirs, Executors or Administrators, or some, or one of them, shall and will with all convenient speed, and by all lawful ways and means sue for, and re­cover the Debts mentioned in the said Schedule hereunto annexed; and from, and after recovery and receit thereof shall, and will upon reasonable request, or notice in writing to him for that pur­pose made, or given by the Commissi­oners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, make and give a just, true and perfect Account un­toAnd make Ac­count. the said Commissioners of the said sum of 248 l. 17 s. before mentioned, as soon as he shall have received the same, and also of all such sums of Mony as he the said T. R. shall have had raised or received out of the Debts hereby assign­ed by force and vertue of these Presents, and shall pay over the said sum of 248 l. 17 s. and such other Monies as [Page 231] he shall have received on Account of the Debts, so by these Presents Assigned unto the said Commissioners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, or dispose thereof as they shall Order, Direct and Appoint in some convenient time from, and after he the said T. R. his Executors, Administrators or Assigns shall have had, and received the same, or any part thereof, to the end the said Commissioners may Order, Distribute, Divide and Dispose thereof for, and towards the Payment and Sa­tisfaction of the Debts due and owing by the said E. K. to such of her Creditors, who have already sought, or shall here­after come in and seek relief by vertue of the said Commission, and contribute towards the Charges thereof, as afore­said. And moreover, That the said T. R. his Heirs, Executors and Administra­tors shall and will from time to time, and at all times hereafter, well and suffi­cientlyCovenant to save the Com­missioners Harmless. Save, Defend, keep Harmless and Indempnified the said Commissioners, Parties to these Presents, and every and each of them, their, and every of their Executors and Administrators, and his and their Bodies, Lands and Tenements, Goods and Chattels, of and from all manner of Actions, Costs, Suits, Arrests, Losses, Damages and Expences whatsoe­ver, which they or any of them shall, [Page 232] or may suffer, sustain, or be put unto, for, or by reason of this present Deed of Assignment, or any other matter or thing whatsoever, lawfully done or ex­ecuted by vertue of the said Commissi­on, or their, or any of their lawful in­termedlings or dealings in any of the Estate of the said E. K. by Force, Ver­tue or Colour thereof. In Witness, &c.

  • The Schedule whereunto the Deed or Indenture annexed, refer.
  • Debts due and owing to the said E. K. and her Estate.
  • Imprimis, Due and owing from, &c. Item.

Another Form of an Assignment.

THIS Indenture made, &c. Be­tween A. B. of, &c. Esq; C. D. of, &c. and E. F. of, &c. of the one part, and J. S. of, &c. of the other part. Whereas the King and Queens Com­mission, under the Great Seal of Eng­land, bearing date at Westminster the day of last past, grounded upon several Statutes made concerning Bankrupts, hath been awarded against P. R. of, &c. directed to the said A. B. C. D. and E. F. and unto G. H. and J. K. Gent. thereby giving full Power and Authority unto the said Commissioners, four or three of them, whereof the said A. B. and G. H. to be one to execute the same. As by the said Commission, rela­tion being thereunto had, it may more at large appear. And whereas the said Commissioners, or the major part of them, having begun to put the said Com­mission in execution, upon due examina­tion of Witnesses, and other good proof upon Oath before them, or the major part of them, according to the Form and Prescipt of the said Commission, and the said Statutes taken, and other­wise, the said Commissioners, Parties to these Presents, have found, and do find that the said P. R. did for the space of [Page 234] seven years and upwards together, last past, before the suing forth the said Commission, use and exercise the Trade of—&c. at his or (her) Shop in W. afore­said, in the said County of, &c. and in particular in that his Trade did buy and sell Iron Wares, and several other sorts of Wares and Merchandizes, and other Commodities relating to that Trade whereby he did seek his Trade of Living (that is to say) by Buying and Selling; and that he the said P. R. in the time of such his Trading, and by reason thereof did become indebted unto the said J. S. and other his Creditors, in the sum of One Hundred Pounds and upwards, and for which the said J. S. on the behalf of himself and other Creditors of the said P. R. hath prayed the aid and relief of the said Commission and Statutes before the said Commissioners, Parties to this Indenture, the said sum of One Hundred Pounds and upwards, being yet un­paid, and owing to the said J. S. &c. And the said Commissioners have also found, and do find, that the said P. R. being so indebted, as aforesaid, did next before the date and suing forth the said Commission (in the judgment of the said Commissioners, Parties to these Pre­sents) become a Bankrupt to all intents and purposes, within the Compass, true Intent and meaning of the several Sta­tutes made concerning Bankrupts, or [Page 235] some, or one of them. And whereas the said Commissioners, Parties to these Presents, in further execution of the said Commission, upon like due exami­nation of Witnesses, and other good proof upon Oath before them, or the ma­jor part of the Commissioners before na­med, have found, and do find, or it otherwise appeareth to them, that since such time that the said P. R. became a Bankrupt, as aforesaid, he the said P. R. was lawfully possest of and interested in a certain Leafe, and Goods, Wares, &c. in the Schedule, &c. Now this Indenture Witnesseth, that the said Commissioners, Parties to these Presents, being the ma­jor part of the Commissioners, in the said Commission named, in furher execu­tion of the said Commission, and of the Statutes therein mentioned, and by Force and Vertue of the same, and of the Authority to them, or the major part of them given thereby; in conside­ration, &c. Have as much as in them lieth, Bargained, Sold, Assigned, Trans­ferred and Set over: And by these Pre­sents (as much as in them lieth) do Bargain, Sell, Assign, Transfer and Set over unto the said J. S. his Executors, Administrators and Assigns, all and sin­gular the said afore-mentioned term of Years, &c. To have and to hold, ask, demand, sue for, recover and receive all, and singular the said Lease and [Page 236] Term of Years, Goods, Wares, &c. Here should be two Habendums, one of the Term and the other of Goods, &c. mentioned and expressed in a Schedule hereof hereunto annexed, and all, and every other Debt and Debts, Sum and Sums of Mony whatsoever, by these Pre­sents Ordered, Assigned and Set over, or in any wise due, or owing, or be­longing to the said P. R. or his Estate, by or from all, or any the persons na­med as Debtors in the same Schedule, or otherwise unto him the said J. S. his Executors, Administrators and Assigns, Upon Trust nevertheless, and to and for the intents and purposes following (that is to say) to, and for the use, behoof, benefit and advantage of them the said J. S. &c. and all such other Creditors of the said P. R. as have already sought, or shall hereafter in due time come in and seek reliefe by vertue of the said Commission, and contribute towards the Charge thereof, according to the directi­on and limitations of the said Statutes, as to so much of the said Estate, both Real and Personal of the said P. R. and other the Premisses, Ordered, Directed, Bargained, Sold, Assigned and Set over to the said J. S. as aforesaid; and of the Monies which shall, or may be had or raised by, or for the same, as the Debts of the said Creditors do, and shall a­mount unto; And as to the residue and surplusage of the said Estate, if any such shall be, the same shall be in trust [Page 237] for the said P. R. his Executors and As­signs, according to the said Statutes, and the true intent and meaning thereof, and to, and for none other use, intent or purpose whatsoever. And to, and with the said Commissioners, Parties to these Indentures, their Executors, Ad­ministrators and Assigns, the said P. R. for himself, his Executors and Admini­strators, doth Covenant, Promise andCovenant to get in the Debts. Grant in Manner and Form following (that is to say) that he shall, and will from time to time, and at all times here­after, with all convenient speed use his best means and endeavour by Suit in Law or otherwise to sue for, recover, receive and get into his and their possession, all, and singular the aforesaid Goods, Wares, Merchandizes, Houshold-stuff, Debts and Sums of Mony, by these Presents Assign­ed and Set over, as aforesaid, and after Possession had and obtained of the said Goods, Wares, Merchandizes, Houshold­stuff, Debt, Sum and Sums of Mony, and other things, or any part thereof, shall, and will with like convenient speed make Sale and Disposition thereof to, and for the most and best value and advantage he and they may or can bonafide. And further, that he, his Execu­tors and Administrators shall, and will from time to time, and at all times here­after upon any reasonable request and notice, account to, and with theTo Account. [Page 238] said Commissioners, Parties to these Pre­sents, or any of them, their, or any of their Executors or Administrators, what, and how much Mony, or other satisfa­ction they shall then have received, raised or recovered by Force, Vertue or means of this present Deed or other­wise, out of the Estate of the said P. R. and such Mony or other satisfaction as upon such Account or Accounts shall ap­pear to be so had, raised, obained or re­ceived, shall, and will upon like reason­able request and notice, well and truly pay, or cause the same to be paid unto them the Commissioners, Parties to these Presents, or some, or one of them, to the end the same may be by them Orde­red, Disposed, Distributed, Divided and Set over unto them, the afore-named Creditors, and such others of the Cre­ditors of the said P. R. as have alreay fought relief, or shall hereafter in due time come in, and seek relief by the said Commission, and contribute towards the Charge thereof, according to the Li­mitations and Directions of the said Sta­tutes, as aforesaid. And to, and with the said Commissioners, Parties to this Indenture, and the said J. S. his Execu­tors and Administrators, and every one of them, the said R. B. &c. (the Credi­tors) do hereby Covenant and grant forCovenant from the Creditors. themselves, their Heirs, Executors and Administrators, that they, and every of [Page 239] them from time to time, for ever here­after, according to, and after the share and proportion of his or their particular Debt or Debts to him or them now due and owing from the said P. R. with, and in respect to the several Debts of all such Creditors as hereafter in due time shall come in and seek relief by the said Commission, shall, and will pay, bear, perform and do his and their share and proportion of all Charges and Expences, Trouble and Travel which already hath been, or hereafter shall be meet, requisite or convenient, or shall happen in or for the suing forth, prosecuting or executing of the said Commission, or in, or for the maintaining, justifying or defending the same, or all, or any proceedings which already have been, or hereafter shall be thereupon, or for the securing and keep­ing Harmless or Indempnified the said Commissioners, Parties to these Presents, and the said J. S. and every, or any of them, or any of their Executors or Ad­ministrators of, and from all Actions, Suits, Arrests, Trouble, Damages, Char­ges, Travel and Expences whatsoever which may arise, happen or be occasio­ned to every or any of them, by reason of the said Commission, or the suing out, prosecuting or executing thereof, or of any matter or thing already done, or which hereafter shall be done in prose­cution of the said Commission, or by [Page 240] reason of this present Indenture, or the Trust, or any other matter or thing therein comprised, specified or mentio­ned, or any thing which is, or shall be done in pursuance thereof. In Wit­ness, &c.

Memorandum. It were better to have in this two Habendum's, one of the Term, and another of the Goods.

A Deed of Distribution from Commissioners of Bankrupts to the Creditors.

THIS Indenture made, &c. Be­tween J. C. P. B. Esquires and W. F. Gent. of the one part, G. H. J. K. &c. of the other part. Whereas the Kings Majesties Commission under the GreatThe Commissi­on. Seal of England, grounded upon the se­veral Statutes made concerning Bank­rupts, bearing Date at Westminster, &c. hath been awarded against the said R. G. directed unto R. A. P. C. Esquires, the said J. C. P. B. and W. F. Gent. as by the said Commission, whereunto Relati­on being had, more fully and at large it may and doth appear. And Whereas at the Humble Petition of the said H. N. exhibited to the Right Honourable, George Lord Jeoffreys, Baron of Wemm, Lord High Chancellor of England, the said Commission was renewed, and the [Page 241] said A. B. and C. D. therein named, in­stead of them the said R. A. &c. toge­ther with them the said J. C. P. B. &c. thereby giving full Power and Authority unto them the said A. B. and C. D. &c. four or three of them, whereof the said A. B. or C. D. to be one to execute the same Commission, as in and by the same renewed Commission under the Great Seal of England, bearing Date at Westminster, &c. whereunto relation being had, more fully at large it may and doth appear. And Whereas the said Commissioners, Parties to these Presents, having begun to put the said Commissions in Execution upon due examination of Witnesses and other good proof upon Oath before them taken, have found that the said R. G. for the space of, &c. past before the Date and Suing forth of the said Com­missions, used and exercised the Trade or Profession of, &c. and did receive and take to Pawn upon Credit, Rings, Plate, Jewels, Houshold-Goods, Wear­ing Apparel, and other Goods, and did Buy, Sell and Utter several, great quan­tities of the like Goods, and other Wares and Merchandizes, and had and kept an House, Shop and Warehouse for that in­tent and purpose in, &c. in the Parish of, &c. and did seek and endeavour to get his Living by Buying and Selling as other Broakers and Traders use to do. And that he the said R. G. so seeking [Page 242] and endeavouring to get his Living by Buying and Selling, Trading and Deal­ing, as aforesaid is mentioned, did du­ring that time of his said Trading and Dealing become justly and truly indebt­ed, and still doth owe and stands justly and truly indebted unto the above-na­med A. B. C. D. M. L. and J. B. in the sum of Fifteen Hundred Pounds of Law­ful Mony of England, and unto divers other persons his Creditors above also na­med, divers and sundry other Sum and Sums of Mony, amounting in the whole to the Sum of, &c. of like Lawful Mo­ny, and being so indebted, he the said R. G. did in the judgments of the said Commissioners, Parties to these Presents, become Bankrupt to all intents and pur­poses, within the Compass, True intent and Meaning of the several Statutes made concerning Bankrupts, or within some or one of them, before the date and suing forth of the said first recited Com­mission. And Whereas the said Com­missioners, Parties to these Presents, in further execution upon like due ex­amination of Witnesses, and other good proof upon Oath before them taken, ha­ving also found that at such time as he the said R. G. became Bankrupt, as afore­said, there were divers Good Wares and Merchandizes, as well of and belong­ing to him the said R. G. as what were Pawned unto him as Securities for Mo­nies [Page 243] by him lent, and also several Sum and Sums of Ready Monies and other Commodities of and belonging to the said R. G. and his Estate in his said late Dwelling-House, situate and being in, &c. Did by their Deed or Indenture of Assignment, under their Hands and Seals, and duly executed, bearing Date, &c. for and upon Considerations, and to and for the Uses, Intents and purposes therein mentioned, Assign and Set Over unto the said T. P. H. N. M. L. and J. B. their Executors, Administrators and As­signs, All and Singular the said Goods, Wares, Merchandizes, Ready Monies and other Commodities, the particulars whereof are mentioned, set down and expressed in the Schedule or Inventory thereof to the said Deed or Indenture of As­signment annexed, as by the same Inden­ture of Assignment relation being thereun­to had, may more at large appear. And Whereas the said Commissioners, Par­ties to these Presents, in further executi­on▪ of the said Commission, upon suffici­ent proof upon Oath of several Witnesses, have also found, that he the said R. G. at the time he became Bankrupt, as a­foresaid, stood justly and truly indebted, and still doth owe and standeth justly and truly indebted unto the said T. P. in the Sum of, &c. Principal Mony, also to the several persons his Creditors above-named, in several Sums of Mony, [Page 244] amounting in the whole to the Sum of, &c. of Lawful Mony of England, the particulars whereof, together with the several and respective persons, that as well have sufficiently proved, as such of them that have not well proved their several and respective Debts (who are not hereby to have or receive any benefit or advantage by this present Deed of Dividend, until such time as they shall so have respectively suffici­ently proved their Debts and Demands) are mentioned, set down and expressed in the Schedule, indented to these Pre­sents annexed. And Whereas the full space of four Months since the Date and Suing forth of the said Commissions is fully elapsed and expired, and no other Creditors of the said R. G. other than the persons above-named have as yet come in, and sought Relief by the said Commissions, or paid, or contributed towards the Charges thereof, according to the direction of the said Statutes for Debt or Debts due, or claimed to be due and owing by and from the said R. G. And Whereas the said Assignees T. P. H. N. M. L. and J. B. have actu­ally raised and received by vertue of the said Assignment out of the Goods and other things thereby assigned, the Sum of, &c. of Lawful Mony of England, the particulars whereof, and how the same hath been received, are mentioned, [Page 245] set down and expressed in the said Sche­dule▪ indented to these Presents, like­wise▪ annexed. And Whereas the said Creditors above-named parties hereunto, have made already, and by these Pre­sents do make it their Request unto us the said Commissioners, Parties to these Presents, to Order, Distribute, Divide and Set Over unto, and amongst the said Creditors, Parties to the Presents, (or at least such of them as either have, or shall in due time make good and suffi­cient proof of their several respective Debt and Debts) the said Sum of, &c. for and towards payment and satisfacti­on of their respective Debts, in the said Schedule hereunto annexed, mentioned and expressed, ratably and proportiona­bly, according to their several and re­spective Debt and Debts, at and after the rate of Three Shillings and Eight Pence in the Pound of their respective Debts. Now this Indenture witnesseth, That the said Commissioners, Parties to these Presents, in further execution of the said Commissions and Statutes therein menti­oned, and by Force and Vertue thereof, and for and in consideration that a Due and Legal Distribution may be effectedDistribution. and made as to the said Sum of, &c. be­fore-mentioned, Have Ordered, Distri­buted, Disposed, Divided and Set Over, and by these Presents, do as much as in them, the said Commissioners, Parties to [Page 246] these Presents, lieth, and they lawfully may Order, Distribute, Dispose, Divide and Set Over, unto and amongst them the said Creditors above-named, one of the Parties to these Presents, the said Sum of, &c. in Manner and Form fol­lowing (that is to say) to each, and eve­ry one of them the said Creditors, as have well and sufficiently made proof of their several and respective Debt and Debts, or shall in due time make such proof, a part and proportion of the same share and share-like, according to the quantity and proportion of their said Debts, in the said Schedule indented hereunto annexed, mentioned and ex­pressed, at, and after the rate of 3 s. and 8 d. in the Pound of their said respe­ctive Debts; To have and to hold, and enjoy the said Sum of, &c. and every part and parcel thereof unto them the said Creditors, Parties to these Presents, their Executors, Administrators and As­signs, as their, and every of their own proper Monies and Estate, towards pay­ment and satisfaction of their said seve­ral and respective Debts, so farforth as the same will amount unto the same, to be ratably and proportionably distribu­ted and divided, as herein before is men­tioned. And the said T. P. H. N. M. L. and J. B. and the rest of the Creditors above-named, one of the Parties to these Presents, for themselves severally, and [Page 247] for their several and respective Executors and Administrators, and not jointly one for the other, do Covenant, Promise and Grant to, and with the said Com­missioners, Parties to these Presents, their respective Executors and Administrators, and to, and with every of them by those Presents, That they the said T. P. H. N. M. L. and J. B. and the rest of the Cre­ditors above-named, one of the Parties to these Presents, their respective Execu­tors and Administrators, shall and will so farforth as concerneth his or their par­ticular Debt and Interest herein, well and sufficiently save harmless and keep in­dempnified all the said Commissioners, by the said Commission Authorised, and every of them, their and every of their Bodies, Lands, Tenements, Goods and Chattels, and every part thereof, of, from touching and concerning, All, and all manner of Actions, Suits, Arrests, Costs, Damages and Expences whatsoever, which they, or any of them may suffer, sustain, or be put unto for, or by reason of this present Deed of Distribution, or any other Act, matter or thing whatsoe­ver lawfully done or executed by vertue of the said Commissions, or their, or any of their lawful intermedlings in any of the Estate of the said R. G. by Force, Vertue or Colour thereof. In Witness whereof the Parties to these Presents, first above-named, have interchangeably, &c.

Bill by a Principal Creditor to call the As­signees to Account, and discover what of the Bankrupts Estate came to their hands.

IN humble manner complaining, shew­eth unto your Lordships your Ora­tor C. J. of London, Merchant. Where­as in the year 1658. and some few years afterwards your Orator had dealings with one J. Robinson of, &c. in the way of Merchandise, whereby he became Debtor unto your Orator, for Goods and Merchandizes sold and delivered to him the said J. R. and for several sums of Mony which he the said J. R. had of your Orator, and were paid for him by your Orator upon Bills of Exchange and otherwise, in the sum of Four and Twenty Hundred Pounds Sterling; and he the said J. R. being so indebted to your Orator in such a great sum of Mo­ny; and sometime in the year 1661▪ he the said J. R. failing in his Estate, and becoming Bankrupt, your Orator for the recovery and gaining his said Debt out of the Estate of the said J. R. he himself being gone beyond the Seas, your Ora­tor did sue forth his Majesties Commissi­on, grounded upon the several Statutes made concerning Bankrupts, against him the said J. R. and accordingly the same [Page 249] was granted and issued forth against him at the sole Instance and Petition of your Orator on the 24th of May, in the 13th year of, &c. Anno Dom. 1661. directed to J. P. R. A. Esquires, J. L. H. N. and R. H. Gent. the major part of which said Commissioners did put the said Commis­sion in Execution, and sate several times in the said year 1661. And after for the discovering and finding out of the Estate of the said J. R. And having so done, did agree by, and with the con­sent of the other Creditors of him the said J. R. that came into the said Commis­sion, that your Orator, and one E. M. of, &c. another of the said R.'s Credi­tors that was come into the said Com­mission, should be Assignees of the Estate of the said J. R. and should be impower­ed by them the said Commissioners by Deed of Assignment under their Hands and Seals, to gather in and receive the same Estate in trust, and for the use of themselves and all other the Creditors of the said J. R. that should duly seek re­lief by the said Commission, and towards satisfaction of their several Debts; but not­withstanding such Agreement and Consent of the Commissioners and Creditors, the said Commissioners sometime afterwards, at the instigation of the said E. M. and of P. S. another of the Creditors who was come into the said Commission, and had before consented to your Orators being [Page 250] one of the Assignees, as is afore-menti­oned, did make their Deed or Deeds of Assignment of the said J. R.'s whole E­state, of a very considerable value in Goods, Debts and Monies, amounting to 3000 l. and upwards, to them the said P. S. and E. M. to both whom the said R. was indebted 100 l. or thereabouts, your Orator being a Creditor for 2400 l. as afore is mentioned; part of which said Estate was inserted in a Schedule, annex­ed to one part of the said Assignments; a Copy whereof is also hereunto affixed. And your Orator further sheweth to your Lordship, that the said P. S. and E. M. being so constituted and made Assignees of the Estate of the said J. R. by the ma­jor part of the said Commissioners, by one or more Deed or Deeds of Assign­ment under their Hands and Seals, and impowred to recover, gather in and re­ceive the same Estate in trust for the use of your Orator, and other the general Creditors of the said J. R. that should duly seek relief by the said Commission; they the said P. S. and E. W. did enter into a Covenant under their Hands and Seals, to, and with the said Commissio­ners to give and render unto them upon reasonable request, an account of whatso­ever Monies they, or either of them should receive and gain in of the said J. S. and relating to his Estate, and pay and satisfie the said Monies to them the [Page 251] said Commissioners, to the end the same might be by them divided equally a­mongst all the Creditors of the said J. R. that should come into the said Commis­sion, proportionable to their several Debts. And your Orator further shew­eth, that they the said P. S. and E. M. being so intrusted, as aforesaid, did re­cover and gain in several great sums of Mony which belonged to the Estate of the said J. R. and did keep the same in their own hands for several years, a­mounting to 2000 l. or more, for which hitherto they, or either of them have not given any account, the said Com­missioners themselves, who might have called them to such account, according to their Covenants, being deceased. Whereby they the said Assignees have for several years kept all the said Monies, and intend still so to do, and to pay no pro­portion of the same to your Orator for his said great Debt of 2400 l. or to the o­ther Creditors, to your Orators know­ledge, without they be compelled there­unto by order of this Honourable Court, contrary to all Equity and Good Consci­ence. And for that your Orator is no ways relievable herein, but in Equity be­fore your Lordship, or to have any dis­covery of the said matters, save in this Honourable Court. And for that also your Orators Witnesses are either dead or in places remote and unknown: To [Page 252] the end therefore, that your Orator may receive his due and equal proportion of all Monies come to the hands of the said P. S. and E. M. relating to the said J. R.'s Estate, for, and in respect of his said Debt of 2400 l. and proportionable thereunto▪ And to that purpose, that the said P. S. and E. M. may bring in a true and particular account upon their Oaths, of all the Estate that hath been heretofore assigned to them by the said Commissioners, the same being in trust, as afore-mentioned, and declare whether they have had one or more Assignments made to them of the same, together with the Dates thereof, and the Cove­nants therein contained, and whether they sealed the Counterpart of such As­signment, and may set forth a true par­ticular of how much of the said Estate hath been received by them, or either of them, or under them, and of, and from whom, and when, and may de­clare upon their Oaths, what other Cre­ditors of the said J. R. did in due time come into the said Commission, and did pay their Contribution-Mony as your Orator hath done; and to the end that the Monies found to be received by them the said P. S. and E. M. or either of them, may be by Order or Decree of this Ho­nourable Court so divided, that your Orator may have his proportion there­of, and your Orator have relief in the [Page 253] premisses, according to Equity and Good Conscience (the same to go to, and to be applied towards the satisfacti­on of a certain Debt due from your Ora­tor to W. R. Esq; according to a Proviso in a certain Act of Parliament made in the 30th year of his now Majesties Reign, intitled An Act for the further re­lief and discharge of poor distressed Priso­ners for Debt) And that the said S. and M. may true answer make to all, and every the matters aforesaid, May it please your Lordship, &c.

  • As for the Schedule sixt to the Bill, Intitle it thus.
  • The Schedule or Inventory, whereof mention is made in the Deed, whereunto the same is annexed, and whereunto the Bill annexed doth re­late, as followeth, (viz.)
  • Monies come to the Hands and Pos­session of several persons of the said J. R.'s and belonging to his Estate.
  • Imprimis, In ready Mony which came to the Hands and Possession of—100 l.
  • Item, &c.
  • Debts owing to the said J. R. and his Estate.
  • Imprimis, Owing by James West.In toto, &c.

Bond from the Assignees to the Principal Creditor in 2000 l. to pay his proporti­onable share.

THE Condition of this Obligation is such, Whereas a Commission un­der the Great Seal of England, ground­ed upon the several Statutes made con­cerning Bankrupts, hath been awarded against J. R. late of the City of London, Mercer, directed to certain Commissio­ners therein named, to execute the same: And whereas the major part of the Com­missioners, by the said Commission au­thorized, in Execution of their said Com­mission, have by their Deed Indented of Distribution, bearing Date with these Presents, distributed and divided divers Debts and sums of Mony, mentioned and expressed in a Schedule to the said Deed annexed unto, and amongst the above bounden P. S. and E. M. and other the Creditors of the said J. R. duly seeking relief by the said Commission, accord­ing to the limitation of the several Sta­tutes, whereupon the same was grounded (to wit) according to the quantity and proportion of their several and respective Debts, in the said Deed also expressed; wherein the Debt owing to the above­named C. J. is mentioned, to be the sum of 1144 l. 8 s. 5 d. And whereas the said [Page 255] C. J. hath formerly given consent, that the major part of the Commissioners should by their Deed of Assignment As­sign and Set Over unto the said P. S. and E. M. amongst other things, All, and singular the said Debts and sums of Mo­ny mentioned in the said Schedule, which the said Commissioners have done ac­cordingly; if therefore the said P. S. and E. M. shall from henceforth, and at all times hereafter, upon reasonable demand, and sufficient Acquittance and Acquit­tances, given in writing to them, or any of them respectively in that behalf well and truly pay, or cause to be paid unto the said C. J. his Executors or Admini­strators, or to his or their Assignee or Assignces, lawfully authorised by writing under his and their Hands and Seals, witnessed before two or more persons of Credit, to receive the same (that is to say) of all such Quanties and Proporti­ons of Monies of the said sum of 1144 l. 8 s. 5 d. mentioned in the said Deed to be owing to the said C. J. as they the said P. S. and E. M. or either of them, their, or either of their Executors, Administra­tors or Assigns should receive of any per­son or persons, by means or vertue of the said Indenture of Assignment, according to the Quantity and Proportion of the said sum of 1144 l. 8 s. 5 d. in reference to the Debts of other Creditors in such Deed mentioned, or according to the [Page 256] Quantity or Proportion of so much there­of, as shall stand, and be duly proved before the major part of the Commissio­ners, by the said Commission authorised, and by them signified under their Hands, so to be proved according to a Proviso in the said Deed of Dividend mentioned, and that also in proportion with the sums of Mony mentioned in the said Schedule to be owing unto other the Creditors of the said J. R. then this present Obligation to be void, or else to remain in full Force and Vertue.

Plea and Demurrer to a Bill brought by the Complainants as Creditors and Assignees under a Statute of Bankrupt, to avoid Leases, and redemise for security of Mony made to the Defendant by the Bank­rupt, on pretence the Commissioners had As­signed the Creditors to pay the Mony to the Defendant, and he to Assign his Estate; Whereas the Commissioners had no power to do the same, and the Estate in Law made to the Defendant was two Years and six Months before the pretended Bank­rupcy; and for Plea, the Defendant of­fers the Indentures, and a Fine levyed to him, long before the Bankrupcy.

THE said Defendant, for Demurrer to the said Bill, saith, that if all the said Bill were true, as it is not; yet the said Complainants of their own shewing, as they themselves have made their Case, ought not to be relieved thereupon ei­ther in Law or Equity: For this Defen­dant saith, that if it were true, that J. E. in the Bill named, and F. his Wife in the Month of, &c. in the 22th year of the Reign, &c. were lawfully seised of a good, perfect and indefeasible E­state to them, and to the Heirs of the said J. E. of the Mesuage or Tenements in the Bill mentioned; and that the said [Page 258] J. and F. being so seised by agreement had and made by and between them the said J. E. and F. his Wife and this Defendant, did by their Indenture of Lease under their Hands and Seals, bear­ing date the twelfth day of J. which was in the said 22th. year, &c. Demise, Grant, and to Farm, let unto this Defen­dant the said Mesuages or Tenements for the Term of 21 Years and 28 Days, from the Feast, &c. rendring a Penny Rent yearly at the Feast of, &c. if the same were lawfully demanded: And that this Lease was made in Consideration of 240 l. paid, or lent by this Defendant to the said J. E. and F. his Wife. And if it be likewise true, that this Defendant in, and upon the 14th. Day of the said Month of, &c. in the said 22th Year, &c. did Redemise the said Mesuages on Te­nements to the said J. E. and F. his said Wife, for the Term of 21 Years from the six and twentieth day of J. in the said 22th. Year, &c. yielding and paying therefore yearly, during the said Term, unto this Defendant the sum of 30 l. at the Feast of, &c. and the first payment thereof to begin at the, &c. Anno Dom. 1625. &c. with a Proviso, That if the said Rent of 30 l. should be behind and unpaid in part, or in all, over or after any of the days of payment limited for the payment thereof, that then, and from thenceforth it should, and might be law­ful [Page 259] to and for this Defendant into the said Mesuages or Tenements to re-enter. And if it be likewise true, That the said J. E. did become bound unto this Defendant in a Bond of 300 l. conditioned for the performance of the Covenants and A­greements contained in these Indentures: And that afterwards the said F. died, and the said J. E. her Husband survived, and did truly pay to this Defendant the sum of 30 l. upon the Feast day of the Nativity of St. John Baptist, which was in the said Year of our Lord God 1625. for a Years Rent then due upon the said last menti­oned Lease. And if it be likewise true, That the said J. E. upon the Feast of the Nativity of St. John Baptist 1626. did fail to pay the said sum of 30 l. then due for the said Rent, and did after condes­cend to make, and did make unto this Defendant one other Lease of the said Messuages or Tenements, by Indenture, bearing Date the 28th. day of December, 1626. and in the second Year of the Reign of our Sovereign Lord the King's most Excellent Majesty that now is, for the Term of 21 Years, to begin from the expiration of the said first recited Lease, for the Yearly Rent of one Pepper-Corn, upon Condition, That if the said J. E. his Executors, Administrators or Assigns, or any of them did, or should from time to time, and at all times then after, du­ring the residue of the said Term of 21 [Page 260] Years then to come and expired, well and truly pay, or cause to be paid unto this Defendant, his Executors, Admini­stratos or Assigns the said Rent of 30 l. at such days, times and place, and in such Manner and Form as in the said recited Indenture of Lease is limited and ap­pointed, then the said last mention'd Lease should Cease, Determine and be utterly Void. And if it be likewise true, That the said J. E. did afterwards pay unto this Defendant the 30 l. which was then formerly due to have been paid at the Feast of St. John Baptist, which was in the said Year of our Lord God, 1626. and did after pay unto this Defendant the Rent of 30 l. due at the Feast of St. John Baptist, Anno Dom. 1627. And did pay unto this Defendant the like Rent of 30 l. at the Feast of St. John Baptist, Anno. Dom. 1628. And if it be likewise true, That afterwardas the said Rent of 30 l. due at the Feast of St. John Baptist, 1629. was behind and unpaid, and that this Defendant for non-payment thereof did enter upon the said Demised Pre­misses, and hath received, or might have received of the Under-Tenants thereof all the Rents or Profits thereof, as well those that were behind at the Feast of St. John Baptist, 1629. as such as have grown due ever since, the value of the same Tenements being 30 l. per Annum. And if it be likewise true, That the said [Page 261] J. E. were a Man that did seek or get his Living by Buying and Selling, and that the said J. E. were indebted to the Complainants and others in the sum of 500 l. and did in December, Anno Dom. 1626. begin to keep his House in St. Al­bans, to the intent to delay his Creditors from the Recovery of their just and true Debts, and hath since absented himself, and thereby is become a Bankrupt. And if it be likewise true, That the said Complainants, and others of the Credi­tors of the said J. E. did the 28th day of J. last, being the 28th day of J. Anno Dom. 1631. become Suiters to the Right Honourable the Lord Keeper, &c. for a Commission upon the Statutes of Bankrupts, to be awarded against the said J. E. and that thereupon a Commission was awarded the 29th Day of J. now last past, directed to the Commissioners in the Bill named, or to any four or three of them. And if it be true, That the said Commissioners have begun to put the said Commission in Execution, and have found that the said J. E. being indebted to the said Complainant and others, did in the Month of December, Anno Dom. 1626. begin to keep his House, and absent himself from his Cre­ditors, and that the said J. E. did there­by become a Bankrupt, as by the said Bill is set forth. This Defendant for De­murrer to the said Bill sath, that if all [Page 262] the said Surmises and Allegations were true, yet the said Complainants, of their own shewing, ought not thereupon to be relieved either in Law or Equity; for this Defendant saith, that the said Com­missioners, by vertue of the said Commis­sion, had not any thing to do with any of this Defendants said Leases, neither were the same Leases any way subject to the said Commission, for that it appeareth of the Complainants own shewing, that the said Leases were made for good consi­deration of Mony, paid long before the said J. E. did become a Bankrupt (that is to say) the said first Lease made by the said J. E. unto this said Defendant, and the Redemise thereupon made by this Defendant to the said J. E. were both made in consideration of 240 l. paid by this Defendant to the said J. E. to secure unto him this Defendant, the sum of 30 l. per Annum out of the Mesuages or Tenements thereby Demised for 21 years. And the said later Leases, as it appears of the Complainants own shew­ing, was made after a forfeiture of the Redemise made by this Defendant to the said J. E. and after a forfeiture of a Bond of 300 l. and the same was only made to secure the subsequent payments of the said Rent of 30 l. per Annum. And this Defendant saith, that the said first Lease, and the said Redemise, being so as aforesaid, made in June, Anno Dom. [Page 263] 1624. and in the 22th Year, &c. this De­fendant then could not prognosticate that the said J. E. would become a Bank­rupt in December 1626. which was two Years and six Months after the making of the said Lease and Redemise; for which cause, and because it appeareth of the Complainants own shewing, that the said Lease and Redemise were made for the consideration of 240 l. and to secure to this Defendant 30 l. per Annum for 21 Years, and were made two Years and six Months before the said J. E. did become a Bankrupt: And because the Complainants by their Bill do set forth a good Title both in Law and Equity to this Defendant, of, and in the Mesuages, Lands and Tenements in question, but do not shew nor derive to themselves any Title at all thereunto, either in Law or Equity, neither by Grant nor Assign­ment from the Commissioners, nor o­therwise; therefore this Defendant doth Demur, and abide in Law upon the in­sufficiency of the said Bill, and doth humbly demand Judgment of this Ho­nourable Court, if he, this Defendant, shall be compelled to make any answer thereunto. And for further Cause of Demurrer to the said Insufficient Bill, this Defendant saith, That the Title set forth by the Complainant by their said Bill to the Leases in question, or to the Lands, Tenements or Hereditaments [Page 264] thereby Demised, is no good Title in Law or Equity. For if it be true, That the Commissioners, upon these Statutes of Bankrupts, did Assign and Appoint the Complainants to pay and tender un­to this Defendant the sum of 240 l. with Interest, and in such manner as by the said Bill is suggested; and Assign and Appoint them to take from this Defen­dant an Assignment or Conveyance of the Leases made to this Defendant of the Lands in the Bill mentioned, to the be­nefit and behoof of the Complainants, and of the other Creditors of the said J. E. yet the said Commissioners had no power by any the Statute or Statutes of Bankrupts, or by their Commission, ei­ther to Assign or Appoint the Complai­nants to pay or tender unto this Defen­dant any sum or sums of Mony, or to Assign or Appoint this Defendant to As­sign or Convey the said Leases or Lands, Tenements or Hereditaments thereby Demised. For which Cause also, and because there is no matter of Equity contained in the said Bill, but the said Commissioners do thereby indeavour to a [...]oid a plain, honest and lawful contract made for just and valuable consideration two Years and six Months before the said J. E. became a Bankrupt, this De­fendant doth Demur in Law upon the insufficiency of the said Bill, and doth humbly demand the Judgment of this [Page 265] Honourable Court, if he, this Defendant, shall be compelled to make any answer thereunto. And for Plea in Bar to this said Bill, this Defendant saith, That the said J. E. and F. his said Wife in the Term of the Holy Trinity, which was in the 22th Year, &c. by one Fine ac­knowledged, and Levied before his then Majesties Justices of his Court of Com­mon Pleas at Westminster, did grant unto this Defendant all, and singular the Me­suages, &c. in the said Indenture of the 12th and 14th days of June, in the said 22th Year, &c. mentioned by the names of three Mesuages, &c. with the Appur­tenances in the Town of St. Albans, and in the Parish of St. Michaels: To have, and to hold to this Defendant, from the Feast of St. John Baptist then next follow­ing, for the Term of 21 Years and 28 Days then next following, and fully to be compleat and ended, as by the said Fine remaining upon Record in his Ma­jesties said Court of Common Pleas ap­peareth. And therefore this Defendant demandeth the Judgment of this Honou­rable Court, if against the Indenture of the said J. E. under his Hand and Seal, made for the consideration of 240 l. con­fessed by the Complainants to be paid, and the same Indenture acknowledged by the said Complainants to be made two Years and six Months before the said J. E. did become a Bankrupt; and if [Page 266] against the said Fine, the said Complai­nants, as Creditors to the said J. E. upon a bare surmise, that the Commissioners upon the Statute of Bankrupts, have ap­pointed them the said Complainants to pay 240 l. and this Defendant to Assign or Convey his Interest to the said Com­plainants; the said Complainants shall be received to Complain in this Honourable Court. All which Matters this Defen­dant is ready to maintain as this Honou­rable Court shall award, and humbly prays to be dismissed forth of the same, with his reasonable Costs and Charges in this behalf most wrongfully sustained.

Mr. Ben. Hintons Case in Chancery.

Hillary 1687.

John Butcher Plaintiff, exhibited his Bill against Ben. Hinton, John Hill, Obadi­ab Sedgwick and George Sittwell, As­signees of the Commissioners of Bank­rupcy awarded against Hinton of Lon­don Goldsmith, George Parker, Parson Parks, Rosomond Wattson and Elizabeth and William Short, Defendants.

THAT Butcher and Short wereThe Bill. Partners in 1669. in the Norway Trade for Timber used in Rebuilding London for seven years, two years of which Butcher was in Norway. And having occasion for Mony to pay Bills before the Goods could be disposed of, Short employed Hinton as Banker, who paid and received several sums on the joint Account▪ and not suspecting any unjust dealing two years after accepted the Account Hinton gave, without examin­ing the Items.

That Butcher and Short being forc'd to trust great quantites of Goods, su­stained great Losses; Hinton finding them in sudden Exigences to pay Bills, took advantage and prepared Accounts of [Page 268] Mony paid and received, in which Hin­ton made them Debtors 4000 l. and pre­tended there was no Error or Over­charges, desired Bonds for the said bal­lance, declared it should be no prejudice, and if any Errors, it should be rectified, and the Security should be for no more than should appear to be due: They sign­ed the Account and gave Bonds.

That after Hinton received and paid divers sums on Account on the Partner­ship, and perceiving they were forc'd to give great Credit, and being in great Exigences to pay Bills of Exchange and other occasions in Trade, took advan­tage and drew up another Account, and Bonds, and required them to execute the same, which they were forced to do, else he threatned to ruin them by bringing Actions on the Penalties; and being Conscious he had wronged them, con­trived to avoid a re-examination, Dec. 4. 1675. pretending there was above 6000 l. due, and that he was pressed by his Creditors, and could not pacifie them unless he and his other Creditors would become bound; but Butcher al­ledging there was not so much due, and the Partnership being ended, and their Debts divided, was unwilling to enter into new Bonds for more than his own part, and be discharged of Shorts part, and have the Bonds and Securities deli­vered up, and the new Bonds to be sub­ject [Page 269] to the same examination the old ones were, and to make good no more than a moiety, which Hinton agreed to; and agreed that he and Short should be bound for 2000 l. And Hinton promised to deliver up the old Bonds, and Butcher should be discharged of all former Bonds, and Hinton executed two Receits on the 4th of Decemb. 1675. one of 4000 l. and the other of 2500 l. being the sum de­manded to be due on the old Bonds, and they sealed new Bonds for 6300 l. with Hinton to his Creditors.

That Hinton took Counterbonds of Butcher and Short to save him harmless, and they having paid above 3000 l. and Hinton delaying to deliver up the old Bonds, or to come to a fair Account, Butcher brought a Bill to compel him thereto, but Hinton threatned to ruin him unless he would execute a General Release, and give new Bonds, which he was compelled to do on Hinton's promise, that he would come to a fair Account, and no use should be made thereof, but to secure what was justly due: And thereupon he executed such Release and new Bonds.

That Hinton failing, a Commission of Bankrupcy was awarded against him, and he declared a Bankrupt: And all the Bonds were assigned to Sedgwick, Sitt­well and Hill, to whom Butcher applied himself to have the old Bonds, Release [Page 270] and Security delivered up and cancelled, and that the Accounts might be exami­ned, being willing to pay what should appear to be due (if any thing due on his Account,) which the Assignees refu­sed to do, and threatned to sue the old and new Bonds, and recover the Penal­ties, tho' he had paid much on the new Bonds. And in looking over the Ac­counts found divers Errors, Omissions and Miscomputations, and made his Ac­counts to carry 12 l. per Cent. Interest, and had charged near 3000 l. for Inte­rest at 12 l. per Cent. and that thrown into several Ballances, Interest was again charged at 12 l. per Cent. which was In­terest upon Interest at 12 l. per Cent. and Hinton had several sums of Mony in his Hands which he received, so that he charged the Plantiff with Interest in ef­fect for his own Mony 12 l. per Cent. and Interest for that Interest at 12 l. per Cent. and had overcharged for Prises of Dol­lers: And no allowance made for Mo­ny the Partners paid on Hinton's Account, nor of Mony paid the Assignees; so that the Plaintiff was wronged 5000 l. the Plain­tiff hoped the Account should be unra­velled, being willing to pay what is due on a fair Account, if any thing on his part due. And the old and new Bonds ought to be delivered up.

[Page 271]That Hinton and Short would lay the whole on the Plaintiff, and refused to produce the Books of Accounts and Bonds; That the same might be produ­ced, and old and new Bonds delivered up, and satisfaction on Judgments ac­knowledged, if any be, and the Accounts examined and liquidated, and the Plain­tiff on paying his part of what (if any thing) be due on his part, and that the Defendants might answer, and the Plain­tiff be relieved, Is the substance of the Bill.

They believed Butcher and Short wereHill, Sedgwick and Sitwell for Answer, say Partners, and Hinton their Banker, who received and paid Mony on the joint Ac­count. And as to the Account from Ju­ly 1680. they referred to Hinton's Books, but as to all before, they pleaded the Bonds, and the 9th of July 1680. a Ge­neral Release given Hinton.

It was ordered the Plea should stand17 July. 4 Jac. II. for an Answer, with liberty for the Plaintiff to except, who excepted, and the Defendants Answered. As to all Errors, Overcharges and Usurious In­terest they referred to Hinton's Books.

That the Plaintiff and Short wereHinton An­swers, and say [...] bound with him to several persons, and that the Plaintiff had paid several sums to the Assignees: That the Plaintiff ex­hibited a Bill against him to Account, and an Account was ordered, but they Accounted between themselves, and the [Page 272] Plaintiff was greatly indebted to him, and 1 July 1680. he entred into 42 several Bonds for payment of 100 l. a-piece at 100 l. a Month; and the 9th of July the Plaintiff gave a General Release, since which he had several dealings with him, and was willing to Account for the same. And by his further Answer,

That the Plaintiff and Short was in­debted to him on the Plaintiffs coming to England, 6000 l. that the Accounts were fairly stated without any abuse. And about Decemb. 1675. they were bound with him to several Creditors, and they gave him Counter-security. As to Er­rors referred to his Books, and that the 4000 l. was brought on the Ballance of the last Account.

Believes the Matters prout Bill, and thatShort being dead, his Wife and Adminstra­trix answered. the Plaintiff and her Husband were great sufferers, and that on a fair Account, lit­tle, if any thing was due to Hinton.

That Short in 1680 exhibited a Bill against Hinton, Parker, Parks, Robinson, Watson and Butcher, 12 Nov. 1. W. M. Sedgwick, Sitwell and Hill were made Parties.

And Short dying, his Administratix brought her Bill of Revivor against all the said Defendants, which to the pur­pose, as Butcher's Bill, to have a fair Ac­count, and be relieved.

[Page 273]On reading the Process and view of11 D [...]cemb. 2 W. & M. Hinton's Accounts, whereby many Er­rors, Overcharges and Miscomputations appeared, The Court declared, the De­fendants, the Assignees ought to stand in place of the Creditors of Hinton, to whom the Bonds of 6300 l. was given, and re­ferred it to Sir John Francklin to look in­to the whole matter, beginning with the Account distinguished by the name of the 4000 l. Account, made up about 1670. and so downwards into the seve­ral Accounts, and to state how he finds the same, and Errors, Overcharges and Miscomputations and Allowances of In­terest not allowed by Law appeared to be in any of Hinton's Books of Ac­counts, and what Mony Butcher and Short, and which of them paid towards discharge of the Bonds in Decemb. 1675. or any other Bonds, and which of them, when, and to whom. And Hinton's Books, Accounts and Bonds were to be left with the Master on Oath.

The Master made his Report, and22 Jan. 1690. shews the Errors, Overcharges and Mis­computations, and Interest carryed from one Ballance to another at 12 l. per Cent.

It appeared that in the 4000 l. Account▪ 3 Nov. 2 W & M. on hearing on the Report. there was an Error of 500 l. besides 224 l. 14 s. 6 d. charged for Interest above lawful Interest, which were made part of the next Ballance, and carried [Page 274] Interest upon Interest at 12 l. per Cent. And the 4th of Decemb. 1675. the 500 l. between Novemb. 1670. and the said 4th of Decemb. 1675. the Plaintiffs were overcharged in unlawful Interest 1789 l. 1 s. 7 d. So then there was due for Mo­ny and Lawful Interest but 3986 l. 3 s. 11 d. which with 1056 l. 10 s. Lawful In­terest to the 4th of May 1680. made 8042 l. 4 s. 9 d.

Towards discharge whereof the Plain­tiff paid Hinton's Creditors, by his order, 4627 l. 18 s. So there remained due the 4th of May 1680. on the joint Account 414 l. 6 s. 9 d. which with 266 l. 6 s. 9 d. Interest to the 23d of Jan. last, made 680 l. 15 s. 9 d.

And on the Plaintiff, Butcher's particu­lar Account 19 l. 4 s. 3 d. which makes in all 700 l. on payment of which the Plaintiffs Councel prayed the Releases, and all Securities might be delivered up.

On hearing the Defendants Councel on reading the Report, his Defendants Receits for 4300 l. given on executing the Bonds in Decemb. 1675. to the Cre­ditors, The Court declared the Account ought to be opened, and the Plaintiffs not to be charged with more than ap­peared by the Books to be advanced, nor with more than Lawful Interest. And Decreed.

[Page 275]That the Repo [...]t be confirmed, and the Plaintiff paying the Assignees 700 l. before the last day of Easter Term next, the Assignees to deliver up the Releases to be Cancelled, and all Bonds, Counter­bonds and Notes before entred into by the Plaintiffs to Hinton, or to any other person for him, and acknowledg satis­faction on any Judgment or Judgments had by Hinton, or any his Creditors a­gainst the Plaintiffs. And a perpetual In­junction awarded for stay of all proceed­ings at Law against Butcher, for any the matters in question, or demand in these Causes. And the Parties to give Mutual Releases to each other.

THE INDEX.

A.
  • WHAT Absenting brings a Man within the Statutes, and what not. Of absenting a mans self on a Decree to pay Mony pag. 24, 25, 26. Vide Departure.
  • On Accounts between Merchants, and one becomes Bankrupt, the other shall pay what appears to be due to the Bankrupt upon the Foot of the Ac­count, and no more, p. 177.
  • Of the Commissioners accounting with the Bankrupt, p. 180
  • Lands extended upon pretence of being the King's Accountant, to be sold by the Commissioners, p. 124.
  • [Page]Covenant to give Account to the Credi­tors, and Bond, and Debt brought, and Pleadings, p. 163, 164
  • Vide Pleadings.
  • What Acts make one a Bankrupt, p. 21
  • Actions.
  • Of Actions brought by Commissioners, p. 139
  • Of Actions brought by the Bankrupt him­self. p. 144
  • Of Actions brought by the Assignee, and what Actions, p. 142, 143, 144
  • Stat. 1. Jac. gives an Action to the As­signee in his own name, but he must declare specially, p. 146
  • Where the Action brought by the As­signee to be laid, p. 168
  • Vide Assignee and Assignment.
  • Where feigned Actions make one a Bank­rupt, p. 27
  • Action on the Case by Assignee upon In­deb. Assump. p. 143
  • Action on the Case against the Goaler for suffering one Committed by the Com­missioners, to Escape, p. 77
  • Vide Escape.
  • Of Adventurers in Company. Vide Com­pany.
  • Admittance into Copyhold-Land sold by Commissioners. Vide Copyhold.
  • If the Bankrupt purchaseth Copyhold, and refuseth to be admitted, Commis­sioners may sell, and the Vendee shall [Page] pay the admittance, p. 113
  • Advowsons sold by Commissioners, p. 134
  • The Form of the Affidavit to be made upon suing out the Commission, p. 1
  • Agreement with the Bankrupt to take 10 s. in the pound, and refused. A Bill brought to perform it. Decreed, and other Proceedings, p. 184
  • Aliens shall be Creditors relievable, and shall be Bankrupt, p. 12, 43
  • Who is an Alien, per Stat. 13 Eliz. p. 40
  • Amerciaments sold by Commissioners p. 135, 140.
  • What sort of Arrest or detention make one a Bankrupt, p. 27, 28, 30
  • Assignment.
  • Monys levied in the Sheriffs hand on Execution, is not Assignable by the Commissioners, p. 119, 120
  • Assignees upon distribution may sue se­verally, p. 171
  • The Assignment is traversable, p. 162
  • The place of the Assignment ought to be alledged in the Declaration, p. 145
  • What Remedy the Assignee shall have for the recovery of the Debts of the Bank­rupt, p. 125, 126, 132
  • Assignment of a Bond in Trust, p. 126
  • Of Assignment of the Bankrups Debts, p. 128
  • Vide Distribution. Obligation.
  • Tho an Executor releaseth, yet the Debt Assignable, p. 131
  • [Page]Damages recovered may be Assigned, p. 131
  • What Goods or other Estate of the Bank­rupt may be Assigned by the Commis­sioners, as Debt in Trust, Goods in Ireland, Judgments, Leases, &c. p. 133, 134
  • Vide under their proper Titles.
  • Obligee before the Bankrupcy of the Ob­ligor Assigns the Bond, this is liable to the after Bankrupcy of the Obligor, p. 130
  • Commissioners may Assign Corn to one, and Mony to another, p. 136
  • What is now the practice as to the Com­missioners making the Assignment, ibid.
  • Assignment a Bar against the Parties, tho' it appear not it was proportionable, ibid.
  • What Assignment shall be good by the Commissioners, and what not, ibid.
  • One of the Creditors an Assignee, accept­ed a part of his Debt in Audita Que­rela, he need not shew what were the Debts of the Creditors, p. 137
  • Assignment of a Debt inter alia is good, because other Debts shall be intended, ibid.
  • If in the Assignment there be more assign­ed to the Plaintiff than his proper Debt, the assignment is not good: If it be inter alia it is good, ibid.
  • If the Assignment be a different sum from what the Verdict finds, yet in an Acti­on [Page] the Case the Plaintiff shall recover, p. 139
  • Assignee shall have the same remedy as the Bankrupt himself might have had, p. 142, 143
  • Trover lies of a Conversion between the Bankrupcy and the Assignment, p. 143
  • The nature of the Assignment, and what privity is transferred by it; privity of Estate, or privity of Contract, p. 144
  • Debts certain are Assignable, ibid.
  • Vide Bargain and Sale.
  • The form of an Indenture of Assignment, p. 225, 233
  • Debts of the Bankrupt not to be attach­ed by foreign Attachment, p. 91, 104
  • The reason of the Clause about foreign Attachments, in Stat. 21 Jac. p. 124
  • Foreign Attachers to come in as Creditors, p. 45
B.
  • WHat Trades or Occupations make a Man liable to Bankrupcy, p. 10, 104
  • As to Buying and Selling, p. 13
  • Particular Employments p. 13, 18
  • Vide under each proper Title.
  • Of ones becoming twice a Bankrupt, p. 38
  • When Bankrupcy shall be said to Com­mence, p. 39, 41.
  • Whether Commissioners may let a Bank­rupt go at Large (after Warrant of [Page] Commitment) to treat about his Debts, p. 68
  • When there are several Acts of Bank­rupcy, from what Act a Man shall be accounted a Bankrupt; and where it shall not relate; p. 110
  • To the first Act: How, and when one is a Bankrupt by relation, p. 42
  • If a Bankrupt dies, the Commissioners may proceed, p. 182
  • If one be a Bankrupt before the date of the Commission, the time in the Peti­tion is not material, p. 5
  • Bargain and Sale by Commissioners.
  • Of the Bankrupts real Estate, and how to be made p. 85, 86
  • Of his Copyhold Estate, p. 86
  • Of Lands Intailed, p. 91
  • Of Lands in Reversion after Estate Tail, &c. p. 101
  • Of Offices, ibid.
  • Of Lands devised, ibid.
  • Bargain and Sale of Lands, of which the Bankrupt is jointly seised. p. 103
  • Bargain and Sale of the Estate which the Bankrupt purchaseth, or after descends to him, p. 87
  • Vide Estate.
  • Bargain and Sale, and the Bargainor be­comes a Bankrupt before Inrollment, the Land may not be sold, p. 98
  • Difference between a Bargain and Sale, and a Feoffment as to a Mans becom­ing [Page] a Bankrupt before the Estate exe­cuted, p. 98
  • Vide Conveyances. Settlements.
  • Lands sold by Commissioners with In­cumbrances, p. 183
  • In what Cases the Sale of the Commissi­oners shall be defeated, and in what not, p. 94
  • Baron and Feme.
  • Two Women Jointenants of a Term of Years, one takes Husband who be­comes Bankrupt; Commissioners may dispose of a moiety, p. 104
  • Chattels real are given to the Husband, if he survive; if Husband dies before the Wise, she shall have them, ibid.
  • A Bankrupt hath Land jure Uxoris, it may be sold during the Coverture; ibid.
  • If she be a Feme Sole Merchant, the whole shall be sold, ibid.
  • The Dower of a Bankrupts Wife shall never be sold, ibid.
  • The Bail pays the Mony, he may come in as a Creditor, p. 44, 45
  • Plaintiff Bankrupt bring Indebit’ Assumpsit, Defendant is discharged on reasonable Bail, because the Debts are assigned, and Assignee ought to bring the Acti­on, p. 144, 145
  • Common or Hired Bail makes one a Bankrupt, and how, p. 31, 32
  • [Page] Bond, to be entred into, to the Lord Chancellor, before suing out Commis­sion, and the form of it, p. 6
  • Vide Pluis Tit. Obligations.
  • Brewer, a Trade within the Statutes, p. 14
C.
  • CLothier, a Trade within the Statute, p. 13
  • Carpenter, a Trade within the Statute, p. 14.
  • Colemerchants, their custom to Repair upon the Credit of the Bottom p. 17
  • Chancery, in what cases it relieves after a Judgment at Law, and for Freehold, p. 191, 192
  • Commission. Commissioners.
  • Commissioners, how many, p. 5
  • One Credito may sue out a Commission, ibid.
  • The form of a Commission, p. 7
  • Death of the Commissioners, p. 9
  • Charge of the Cmmission, who to pay it, ibid.
  • What time limitted for taking out the Commission, p. 48
  • Notice of the Commission, p. 48
  • Commissioners accounting with the Bank­rupt. Vide Account.
  • If all the Commissioners die, who shall account for the Bankrupts Estate, p. 181
  • [Page]Commissioners Power in breaking up Houses, p. 65
  • Commissioners Power in reference to the Bankrupt himself, p. 61
  • And about his Estate. Vide Estate.
  • Commissioners Authority, and how to be relieved against them for misdemea­nor, p. 182
  • As in judging a person a Bankrupt, when he is not so; or in not pav­ing a Ratable part, p. 181, 182
  • Pleadings to Actions brought against Commissioners, p. 165, 166
  • Commissioners Power concerning the Bankrupts Body, p. 66
  • What Remedy the Bankrupt hath for the Misdemeanor of the Commissioners, p. 181
  • Conveyance.
  • What Conveyance of the Lands and Goods of a Bankrupt is good, and what not, p. 123
  • Where the Purchaser of a Bankrupts Lands is safe, or not, p. 108, 109, 110
  • Of Conveyances made bona fide, before he comes to be a Bankrupt, p. 88
  • What is a valuable Consideration, p. 106, 107
  • Consideration of Settlements, p. 107
  • What shall be said a voluntary Convey­ance, p. 108
  • Vide Settlements. Purchases.
  • Of Bills of Conformity, p. 192
  • [Page]What Common shall not be sold by Com­missioners, p. 135
  • Concealing the Bankrupts Estate and Goods, and Penalty, p. 62, 81
  • Of Estates on Condition, whith are made to the Bankrupt, how to be disposed of, how the Condition to be performed, and by whom, p. 102, 103
  • Vide Mortgages.
  • Contract to Victual a Fleet, no Trade within the Statutes, p. 17
  • Owing Mony, and not compounding for the same, p. 29
  • Company Adventurers in the East-India or Guinea Trade, or the Royal Fishing, no Trade within the Statutes, p. 19, 20
  • Contingent Estates, Vide Estates.
  • Contribution.
  • Must be towards the Charge before re­lief, p. 48
  • The form of an Authority to receive Contribution Mony, p. 49
  • Copyhold.
  • Copyhold Lands to be sold, and how p. 111
  • Fines how, and to whom to be paid, ibid.
  • Of admittances to Purchasers, ibid.
  • Title to Copyhold Lands cannot be made by the Commissioners, without Sur­render or Admittance, p. 112
  • Copyhold Estate is vested in the Purcha­ser before admittance, and to what [Page] purposes, and to what not, p. 112, 113
  • Copy-holders Wife barred of her Wi­dows Estates, and how, p. 113
  • Bargain and Sale of the Bankrupts Copy­hold Estate by the Commissioners, and how, p. 86
  • Counterbond, Vide Surety.
  • Creditors.
  • Who are Creditors within the Statute, and who not, p. 42, 43, 44, 45.
  • One Creditor not to be preferred before another, p. 46
  • How the King (a Creditor) to be pre­ferred before others, and how not, ibid.
  • When Creditors may come in, and what they must do to be relieved, p. 47
  • Remedies for the Creditors for the re­mainder of their Debts, p. 178
  • Creditors that have notice of the Com­mission sued out against a Man, who hath made agreement with his Credi­tors, and breaks it, not relievable in Equity to have the Agreement per­formed, nor to a Dividend after the Assignment of the Estate, p. 48
  • Creditors, when to be excluded from coming in, p. 171
  • Covenant to give account to other Credi­tors; and Bond to perform; and De­clarations and Pleadings, p. 163
D.
  • [Page]DAmages recovered shall be sold by the Commissioners. p. 131
  • Damages assigned upon erroneous Judg­ment, and the Judgment reversed, As­signee shall make restitution, p. 141
  • If Recoveror of Damages shall come in as Creditor, p. 44
  • Declaration.
  • The form of a Declaration by Assignees of the Commissioners of Bankrupcy upon Emisset, p. 147
  • The like upon Obligation, p. 156
  • The place of the Assignment ought to be laid in the Declaration, p. 145
  • Plaintiff in his Declaration need not men­tion the several Creditors, but only to set out his own Debt, ibid.
  • The Plaintiff in his Declaration need not express upon what Statute the Action is brought, p. 145
  • Of the Commissioners declaring one to be a Bankrupt, p. 53, 54
  • One hath received part of the Debt by Assignment, how he shall sue and de­clare for the residue, p. 179
  • Debt.
  • Disposition of Debts due to the Bank­rupt, and how, p. 90
  • [Page]The Bankrupts Debts transferred in other Mens Names, Vide Trust.
  • Assignment of the Bankrupts Debts, and what shall be good, and what not, p. 128.
  • Payment of Debts, Vide Payment.
  • Distribution, Vide Assignment.
  • How to be made by Commissioners, Vide Assignment.
  • Debt on Bond may be divided to every Creditor a portion, p. 130
  • No Creditors to be admitted after distri­bution, p. 48, 171
  • Form of Notice to Creditors of making a Dividend, p. 172
  • A President of Deed of Distribution from the Commissioners to the Creditors, p. 240
  • Of the Stile of Depositions, p. 53
  • Where Depositions may be read as Evi­dence, Vide Evidence.
  • What Departing of the Realm makes Bankrupt, and what not, p. 23
  • What is such a Departure from a Mans House as makes him a Bankrupt, p. 24
  • Of ones Denying himself to be at home, p. 24, 25
  • Bargain and Sale of Lands Devised, may be sold by the Commissioners, and the Bankrupt shall not wave the Devise, p. 101
  • Two Jointenants are Disseised, one be­comes a Bankrupt, Q. if it can be [Page] sold, p. 103, 104
  • Disseisee Copyholder, becomes a Bank­rupt, Commissioners may sell the Co­pyhold, p. 113
  • Drover is a Trade within the Statute, p. 15
  • Dower of a Bankrupts Wife shall never be sold. Aliter, If she marry one that is a Bankrupt. p. 104
E.
  • EState.
  • Disposal of the Bankrupts real and personal Estate by the Commissioners, and how to be sold, p. 84, to 90
  • Contingent Estates, what, and how dis­posed of, p. 96, 97, 107.
  • What Goods and Chattels may be sold, and what not, p. 115, 119
  • Vide Assignment. Sale.
  • Bankrupt commits Felony, the Lands shall be sold, p. 98
  • Escape makes a Bankrupt, p. 31, 42
  • Examination of the Bankrupt, his Wife, of Witnesses and Concealers, Debtors, and the Penalty for obstinate refusal, and how made, p. 70, 71, 72, 73, 74, 76
  • Joint Commitment where two refuse to be examined, ill.
  • Execution.
  • He that hath the Defendants Body in Ex­ecution, not relievable as a Creditor. Aliter, on a Statute Merchant, p. 44
  • How, and where the Goods of a Bank­rupt liable to Execution, shall be sold [Page] by Commissioners, and how▪ and where not, p. 118
  • Goods of a Bankrupt extended before he became a Bankrupt, and delivered by the Liberate after he became Bank­rupt, cannot be sold, p. 119
  • From what time the Goods are liable to Execution, p. 121
  • After Judgment, and before Execution, one becomes a Bankrupt, and the Cre­ditors assign this, and after the Judg­ment is reversed, Q. who shall make restitution, p. 122
  • What shall be accounted the Executing of an Extent, p. 123
  • Lands extended under Colour of being the Kings Accountant, when, and how to be sold, p. 116, 124
  • Depositions taken before the Commissio­ners, where they shall be good Evi­dences, and where not, p. 168
  • Defendant not accepted to be a Witness, because he was a Creditor, p. 169
  • Vide Witness,
  • Executor of the Bankrupt shall have an Action against the Commissioners to account, p. 181
F.
  • AMeer Farmer not within the Sta­tute, p. 15
  • A Feme Covert Merchant, Vide Feme, Baron and Feme.
  • [Page]What fraudulent dealing, as to Goods, makes one a Bankrupt, p. 33
  • What fraud, as to Lands, makes one a Bankrupt, p. 34
  • What Sales are fraudulent within the Sta­tute, ibid.
  • Voluntary Settlements, what shall be ac­counted fraudulent, or not, p. 36, 37, 38
  • Circumstances of fraud, p. 37
  • The Bankrupts fraudulent Conveyance of his Goods and Lands, and the Penalty, p. 69, 70
  • What shall be accounted a fraudulent settlement, to be avoided by Sale of the Commissioners, p. 105, 107, 108, 109
  • Vide Conveyance. Consideration.
  • Vide Trust.
  • Wife joins with her Husband in selling part of her former Jointure, and a new Settlement is made of other Lands, in which she is Tenant for Life, remainder to the first Son: This is not fraudulent, p. 107
  • Disposition of the Freehold Estate of the Bankrupt, and how, p. 84, 85, 86, 87, 95
  • Forfeitures on the Statutes of Bankrupcy, how to be disposed of, p. 81
  • How to be recovered, p. 82
  • Forfeiture of a Bond, Vide Obligation.
G.
  • [Page]GRrazier is a Trade within the Sta-Statute, p. 14
  • Goods of the Bankrupt sold by Commis­sioners, Vide Estate. Sale.
  • Of the Goods of a Bankrupt taken in Ex­ecution, Vide Execution.
H.
  • HUsbandman, quà such, is not a Pro­fession within the Statute, unless he be a Drover, p. 15
  • What is such keeping the House, as makes a Man a Bankrupt, p. 25
  • Harriots, Reliefs sold by Commissioners, p. 135
I.
  • INdictment upon the Statute for the Bankrupts fraudulent Conveyance of Land or Goods, p. 69, 70
  • Inrollment of a Deed, how it shall re­late, p. 98
  • Of Interrogatories, p. 83
  • Inholder, quà such, is not within the Statutes, p. 14
  • Inhibition to the Debtors of the Bank­rupt not to pay Mony, p. 54
  • Imprisonment, Vide Prison.
  • Bargain and Sale of Lands whereof the Bankrupt is jointly seised, a moiety may [Page] be sold; and if one die, no survivor­ship shall take place, p. 103. 105
  • Two Women Jointenants of a Lease for years, and one takes Husband, who be­comes a Bankrupt, Commissioners may dispose an Interest in a moiety, p. 104
  • Of Bankrupts in relation to joint Stocks and Partnership, separate Creditors, p. 174, 175, 176
  • Vide Stock.
  • One hath a joint Stock in the hands of another, tho' he hath left off his Trade, yet he may be a Bankrupt, p. 173
  • The Consideration of the Wives joining with her Husband in selling her for­mer Jointure, a good Consideration, p. 106, 107
  • Ironmokger is a Trade within the Sta­tute, p. 13
  • Commissioners may assign a Judgment, p. 134
  • Judgmentees must take their proportion, p. 171
  • Plaintiff is a Bankrupt since the Judgment, and Judgment is affirmed before the Commission sued out; Execution not to be stopt, but the Bankrupcy to be tried by a special Sci. Fac. p. 122
K.
  • WHether the Kings Title be prefer­ed before a Subjects, p. 139, 140
  • Kings right not given away by Act of [Page] Parliament, but werein he is mention­ed, p 140
L.
  • LAbourers are not within the Statutes of Bankrupts, p. 1
  • O [...] Leases being sold by the Commissio­ners, p. 134
  • Lease, with a Proviso, not to alien, the Commissioners may sell, ibid.
  • Lease demised to A. if he live so long, re­mainder to B. the Commissioners shall not sell this possibility, p. 134
  • Wager of Law may be made by the De­fendant in Action brought by As­signee, p. 143
  • Letter of Licence makes no Bankrupt, p. 33
  • Legatee is relievable as a Creditor,
  • Statute of Limitations pleaded, and how, p. 162, 163
M.
  • COle Merchants, Vide C. Merchant imports Goods in his own name, he must issue out the proceed so imported, to make him a Bankrupt, p. 17
  • Maxims of Bankrupcy, p. 169
  • Monstre les faits, p. 146
  • Mortgagee need not come in as Creditor, p. 43
  • Disposition of Mortgaged Estates by the Commissioners, and how, p. 102, 103
  • Who is to tender the Mony upon a Con­dition, p. 103
  • [Page]Disposition of Goods Mortgaged or Pawned, p. 117
N.
  • NOtice. Payment by a Debtor of a Bank­rupt, before notice of the Bankrupcy, and before Commission sued out, is a Discharge against the Commissioners, or their Assignee▪ p. 133, 165
  • Payment to a Bankrupt after notice, is void. Aliter, If there be no notice, or the Party be compelled to pay it be­fore the Commission sued out, p. 133
  • The Form of Notice to Creditors of ma­king a Dividend, p. 172
O.
  • THE Form of the Oath administred to Witnesses, p. 52
  • The Oath for proof of Debts, p. 55
  • Obligation.
  • Of Bonds taken in Trust for the Bank­rupt, p. 126
  • Bond assigned by the Obligee before his Bankrupcy, this is liable to the After-Bankrupcy of the Obligee, being only suable in his Name, p. 126
  • Bond in Trust assigned, and good, p. 131
  • Obligation assigned before day of pay­ment by the Commissioners, tho' the Obligation becomes forfeited after­wards, the Bankrupt shall never take [Page] advantage by this, and this Assignment saves the forfeiture, p. 130
  • The Bankrupt and his Debtor are bound to L. in Trust for the Bankrupt; the Executor of L. releaseth, yet this Debt is assignable, p. 131
  • Debt or Obligation assigned by the Com­missioners, Plaintiff need not shew the Obligation, p. 146
  • Counterbond, Vide Surety.
  • What Offices are within the Statute, and may be sold by the Commissioners, and what not, p. 100, 101
  • Outlawry makes a Bankrupt, p. 27, 109, p. 104
  • Outlawry in Ireland, ibid.
  • Outlawry reversed for want of Proclama­tions, all done by the Commissioners is void, p. 28
  • If the Jury find a Bankrupt Outlawed, how they must find it, ibid.
  • Whether the King, or the Creditors shall have the Goods of a person Outlawed as a Bankrupt, p. 140
  • Of Commissioners accounting for the overplus of the Estate, p. 180
P.
  • PArtners, Vide Joint-Stock. Assignee of one Partner shall have an Action of Trover against the other, p. 173, 144
  • If one Partner become a Bankrupt, how is the other chargable, and how far, p. 173
  • [Page]Two Partners, and one is a Bankrupt and dies, no Survivor, p. 173
  • How, and wherein Bankrupcy affects Partners, p. 16
  • Perjury by the Bankrupt: Witnesses, Con­cealers, &c. how punishable, p. 78, 79
  • Disposition of Goods Pawned, by the Commissioners, p. 126
  • Petition to the Lord Chancellor to grant a Commission, p. 20
  • Petition to the Kings Courts to compound, maks a Bankrupt, p. 32
  • Prison. Imprisonment, Vide Goal.
  • What Imprisonment, and how long ly­ing, and for how much, makes a Man a Bankrupt, p. 29, 30, 31
  • The Form of the Proclamation, command­ing the Bankrupt to render himself, p. 62
  • How Proclamation to be made,
  • Pleadings.
  • That the Obligation was made to the Plaintiff▪ to the use of him and other Creditors of O. and that one of the others released it: Its ill plea, p. 125
  • That such a day the Plaintiff became a Bankrupt, it's an ill plea, p. 161, 164
  • That the Defendant paid the Mony to the Assignees of the Commission of Bank [...]urcy, p. 162
  • Double Pleading, or not, ibid.
  • Statute of Limitations pleaded in bar, and how, ibid.
  • In Action against the Commissioners, the [Page] Plea is, not Guilty; but to the break­ing of the House, it must be special, and why, p. 168
  • Recovery in Tresspass, no bar to an Action on the Case for impairing ones Credit, brought against Commissioners for breaking open an House, p. 167
  • Bankrupcy traversable as well as the As­signment, p. 162
  • Plea to an Indeb. Assumpt. that it was as­signed by the Commissioners of Bank­rupcy, p. 206
  • The same Plea to a Bond for perfor­mance of Covenants, p. 210
  • Whether possibilities may be sold by the Creditors, and what, p▪ 97
  • Of Proof of Debts▪ p. 55
  • Payment of Debts before Notice, Vide No­tice. Or Commission sued out, p. 161, 165
  • Purchases, Vide Conveyances. Settlement.
  • Purchasers, for good and valuable Consi­deration, not to be impeached, unless the Statute be sued out in five years time, p. 41
R.
  • REfusal of the Wife to be examined, and the Penalty, p. 67, 68
  • Refusal by Witnesses, Concealers, &c. to answer or discover, and the Penalties, p. 75, 76, 77
  • Bankrupt cannot Release or discharge a Debt due to him, p. 91
  • Decree for Mony against a Mans own Release, p. 179
  • [Page]Disposition and Sale of the Bankrupts Rents, p. 127
  • Disposal of the Bankrupts Reversions or Remainders, p. 91, 92, 96
  • Where a Release shall be good, and where not, p. 131, 91
  • Bankrupt is a Recusant convict, p. 140
S.
  • SAle, Vide Bargain and Sale.
  • Sale by a Bankrupt after a Commissi­on awarded, is void, tho' the Commis­sioners were never seised of them, p. 118
  • Sale of Goods by a Deed not Indented, and before View, is Good, ibid.
  • tho' the Bankrupt sells the Goods in Market-overt, yet the Sale is not good, and may be avoyded, ibid.
  • Where the Commissioners have power of the Mony only on sale of Goods, p. 130
  • Settlement, Vide Conveyances. Frauds. Trusts.
  • Of Settlements made before he becomes a Bankrupt. p. 87
  • What shall be good, and what not, ibid.
  • Voluntary Settlements, p. 97
  • Fraudulent Settlements, Vide Fraud.
  • Lands setled in other Mens Names, Vide Trust.
  • Of taking Sanctuary, p. 26
  • Salesman within the Statutes, p. 13
  • A Trading Smith within the Statutes. A Working Smith not.
  • Scire Facias pro Creditoribu sur Statut’ de [Page] Bankrupts sur Judgmet’ recuper’ per le Bankrupt versus Executrix.
  • Vendee of the Commissioners shall have a Scire Facias to revive a former Ex­ecution against Terretenants and Ju­rors upon Extent, p. 140, 141
  • Judgment against a person who is after a Bankrupt, the Judgment being before the day of the Commission sued out; the Mony shall not be stopt in Court, on motion that he is a Bankrupt; but by a special Scire Facias it may be tried whether he be a Bankrupt or not, p. 122
  • Statutes of Bankrupcy to be construed favourably for Creditors, p. 39
  • Statutes of Bankrupcy are general Sta­tutes, and therefore notice must be taken of them, p. 146
  • Conisee of a Statute, or Recognisance, re­lievable as a Creditor, p. 43
  • Statute extended upon the Bankrupts Lands before Liberate filed: Ordered to take as other Creditors, p. 45
  • Vigore Statuti predict’ in a Declaration is good in general, p. 145
  • Stocks in Companies, Vide Companies.
  • Stocks-Joint, Vide Joint-Stocks. Partners.
  • Stwards of Inns of Courts, no Trade within the Statutes.
  • Of a Merchant or Tradesman turning Soldier, p. 26
  • Surety may com in as Creditor, p. 44
  • [Page]Two Jointenants, one becomes a Bank­rupt and dies, Survivorship shall not take place, p. 103
  • If there be surplusage, the Party hath remedy in Chancery, p. 137
T.
  • TAylor, a Trade not within the Sta­tute, p. 14
  • Tail, Sale by Commissioners of Entail'd Lands, p. 96
  • Trade.
  • Leaving off a Trade, and Trading again, discontinuing of Trade, p. 15
  • Selling the surplus of a Commodity, is no Trading within the Statute, p. 18
  • A Gentleman Trader may be a Bank­rupt, p. 19
  • Trover and Conversion, where it lies, p. 143, 144
  • Traverse.
  • The Bankrupcy is traversable as well as the Assignment, p. 162
  • The reason of the Traversing that he is a Bankrupt, p. 181
  • Trust.
  • Of Lands setled in other Mens Names in Trust for the Bankrupt, Vide Fraud.
  • Personal Estate in other Mens Names in Trust for the Bankrupt, shall be sold, p. 99
  • A Merchant not in Debt, purchaseth [...]or for another, or gives Land to another, and there be no fraud in it to deceive Creditors, is good, ibid.
  • [Page]Bankrupts Debts transferred in other Mens Names, Commissioners may dis­pose of them, and how, p. 115
  • Decree, That a Trustee shall receive his own Mony, and part with the Estate, d. 190
  • Goods transferred, and yet Ownership kept on Foot, may be sold, p. 125
  • Bonds taken in Trust of a Bankrupt, p. 125, 126
  • Trustee of a Bankrupt, after he becomes a Bankrupt, not relievable as a Credi­tor, p. 45
  • Time is not material in the Petition, if he were a Bankrupt before the suing out the Commission, p. 5
V.
  • VIntner is a Trade within the Statute, p. 14
  • In a Trial of Assignee by Commissioners, the Venire may be in Middlesex, or where the Cause of Action ariseth, p. 168
  • In consideration of Love to his Son, a Man Bargains, Sels, Grants and con­firms Lands to him and his Heirs, which was inroll'd; the Land shall not pass unless the Mony had been paid, or the use executed, p. 107
W.
  • DEfendant on nil Debet pleaded; wa­geth his Law; how, and where good, p. 164, 165 Vide Law.
  • [Page] Det on Contract assigned over, Defen­dant may wage his Law, p. 146
  • Warning to be left at the Bankrupts House, p. 63
  • Form of the Warrant from the Commis­sioners for the Witnesses. p. 55
  • A Warrant to commit one to the Goal who refuseth to be sworn, or to an­swer Interrogaties, p. 58
  • Warrant to apprehend the Bankrupt, p. 63
  • Warrant to the Warden of the Fleet to receive a Bankrupt, committed by the Commissioners, p. 68
  • Wife. Refusal of the Wife to be exami­ned, and the penalty, p. 66, 67, 68 Vide Baron and Feme.
  • Providing for the Wife, is within the Stat. 1 Jac. p. 106
  • Copyholders Wife, how barred of her Widows Estate, p. 113
  • Witness, Vide Evidence.
  • Witnesses charges, how to be born, p. 76
  • A Merchant sells Lands bona fide, to J. S. and after becomes a Bankrupt, J. S. may chuse to shew his Writings. p. 111
  • What is said an Original Writ within the Statute, p. 31
  • Original Writ, and notice, make one a Bankrupt, if he compound not in six Months, p. 31
  • Scandalous Words in disparagement of a Tradesman, p. 195
FINIS.

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