custody who at any time after the end of present Session of Parliament 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 Kings Courts any Petition or Petitions Bill or Bills against his or her Creditor or Creditors or any of them thereby desiring or indeavouring 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 originall contracts or being indebted to any person or persons in the sum of one hundred pounds or more shall not pay or otherwise compound for the same within six months next after the same shall grow due and the Dâ—btor be arrested for the same or within six months after an originall Writ sued out to recover the said debt and notice thereof given unto him or left in writing at his or their dwelling house 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 the sum of one hundred pounds 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 accounted and adjudged a Bankrupt to all intents and purposes And in the said cases of arrest or lying in prison for such debt or debts or getting forth by common or hired Bayl from the time of his or her said first arrest And be it further enacted by the authority of this present Parliament that the like Commissions Orders Benefits and Remedies which are and be provided and limited by the said former Acts of Parliaments made in the thirteenth year of the late Queen Elizabeth and in the first year of the Reign of our Sovereign Lord the Kings Majesty against any Bankrupts in them or either of them described or for or concerning his her or their Lands Tenements Hereditaments Fees Annuities Offices Goods Chattels Wares Merchandize and Debts or any of them shall and may be had pursued taken and expounded against such person and persons as are herein and hereby declared described or expressed to be Bankrupts and against his her and their Lands Tenements Hereditaments Fees Annuities Officers Goods Chattels Wares Merchandizes and Debts in such manner and form as the same ought and might have been if the persons herein declared described or expressed to be Bankrupts had been by the said Statutes or either of them described to be Bankrupts to all intents and purposes whatsoever And be it enacted by the authority aforesaid That the same orders benefits and remedies which are and be provided and limited by this present Act against any Bankrupts in or by this Act declared described or expressed to be Bankrupts or for or concerning his her or their Lands Tenements Hereditaments Fees Annuities Offices Goods Chattels Wares Merchandizes and Debts or any of them or the discovery of them or any of them shall from henceforth be had pursued taken and expounded against such person and persons as are declared or expressed to be Bankrupts by the said former Acts of Parliaments or either of them and against his her and their Lands Tenements Hereditaments Fees Annuities Offices Goods Chattels Wares Merchandizes and Debts in such manner and form as the same ought and might have been if the persons in the said former Statutes or either of them described to be Bankrupts had been mentioned and described to be Bankrupts in and by this present Act. And whereas by the former Laws the Commissioners appointed have power to examine the Bankrupt himself and such person or persons as are suspected to have or detain of the estate goods or chattels of the Bankrupts but some doubt hath been made whether the Commissioners have power to examine the wives of the Bankrupts touching the same by reason whereof the Bankrupts wives do daily conceal and convey away and cause to be conveyed away much part of their husbands moneys wares goods merchandize and other estate to person or persons unknown to any but such wives by reason whereof much of the Bankrupts estate is concealed and detained from the Creditors For clearing therefore the said doubt and avoiding the inconveniences aforesaid Be it declared and enacted by the authority aforesaid 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 examine upon oath the wife and wives of all and every such Bankrupt for the finding out and discovery of the estate and estates goods chattels of such Bankrupt or Bankrupts concealed kept or disposed of by such wife or wives in their own person or persons or by their own act or means or by any other person or persons And that shee 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 or examinations as in and by the said former Laws or either of them is already made and provided against any other person or persons in like cases And be it further euacted by the authority aforesaid That if any Bankrupt shall 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 conveyed away his or her Goods Chattels Lands Tenements Offices Fees Rents or Annuities or other Estate or any part thereof to the value of twenty pounds 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 or abuse at the Assises or general Sessions to be holden before the Iudges of Assise or Iustices 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
Lands Tenements or Hereditaments And be it further enacted That if any person that now is or hereafter shall become a Bankrupt have heretofore granted conveyed or assured or shall at any time hereafter grant convey or assure any Lands Tenements Hereditaments Goods Chattels or other estate unto any person or persons upon condition or power of redemption at a day to come by payment of mony or otherwise That it shall and may be lawful to and for the said Commissioners or the greater part of them before the time of the performance of such condition to assign and appoint under their hands and seals such person or persons as they shall think fit to make tender or payment of 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 Provided further that no Purchaser for good and valuable consideration shall be impeached by vertue of this Act or any other Act 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 Provided further and be it enacted by the Authority aforesaid that this Act and all other Acts of Parliament heretofore made against Bankrupts shall extend to Strangers born as well Aliens as Denizens 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 Stat. 34 H. 8. 4. 13 El. 7. 1 Jac. 15. Stat. 14 Car. 2. Chap. 24. Whereas divers Noblemen and Gentlemen not bred up in Trade have notwithstanding put great Stocks into the East-India and Guiny Company it is declared that no persons Adventurers for putting in Mony or Merchandise into the said Companies or for adventuring or managing the Fishing called the Royal Fishing Trade shall be takâ—n or reputed a Merchant or Trader within any Statutes for bankrupts or be liable to the same Provided that persons trading and trafficking in any other way or manner than the said Companies or Fishing shall be liable to the Commission of Bankrupts A Verdict and Iudgment against Sir Jo Wollaston as a Bankrupt for trading in the East-India Company reversed and made void Provided not to avoid any sale or disposition of his lands or goods made by vertue of the Commission of Bankrupts To the Right Honourable c. IN most humble manner complaining sheweth unto your Lordship your daily Orators T. B. of A in the County of D. Gent. and W. P of C. in the County of E. Esq as well for themselves as for all others the Creditors of R. D. of the Parish of M. in the City of London Merchant That whereas the said R. D. using and exercising the Trade of Merchandize by way of Bargaining Exchange Bartering and Chevisance seeking his Trade of living by buying and selling upon good and just causes for Wares and Merchandizes to him sold and delivered and also for ready mony to him lent being indebted to your Orators and others his Creditors in divers and several sums of money amounting in the whole to the sum of c. and upwards of late that is to say about the Month of November last did become Bankrupt within the several Statutes lately made against Bankrupts to the intent to defraud and hinder your said Orator and all other his Creditors of their just Debts and Duties to them due and owing viz. within the Statute made in the Parliament begun and holden at Westminster the second day of April in the thirteenth year of the Reign of our late Sovereign Lady Queen Elizabeth concerning Bankrupts and within the Statute made in the Parliament begun and holden at Westminster aforesaid the nineteenth day of March in the first year of the Reign of our late Sovereign Lord King James of England France and Ireland and of Scotland the seven and thirtieth Intituled An Act for the better relief of the Creditors against such as shall become Bankrupts as also within the Statute made in the Parliament begun and holden at Westminster the nineteenth day of February in the one and twentieth year of the Reign of our said late Sovereign Lord King James of England France and Ireland and of Scotland the seven and fiftieth Intituled An Act for the further description of a Bankrupt and relief of the Creditors against such as shall become Bankrupts or within some or one of them In tender consideration whereof may it please your Lordship to grant unto your Orators his Majesties most gracious Commission to be directed to such and so many wise honest and discreet persons as your Lordship shall seem meet authorizing them thereby not only concerning the said Bankrupt his Body Lands Tenements Free-hold and Customary Goods Debts and other things whatsoever but also concerning all other persons which by concealment claim or otherwise do or shall offend touching the premises or any part thereof contrary to the true intent and meaning of the same Statutes To do and execute all and every thing and things whatsoever as well for and towards satisfaction and payment of the said Creditors as towards and for all other intents and purposes according to the Ordinance and Provision of the same Statutes And your Orators shall pray c. In Bankrupt Note What he is discovered 1. By general description Sect. 1 2. 2. By his Trade 4 5 6 usque ad Sect. 11. By his demeanour 12 13 14 usque ad Sect. 25. By the final cause of all Sect. 26. The proceeding against and puniâ—hment of him 1. In general he shall be accompted a Bankrupt and made thereby incapable to dispose of his own Sect. 28. 2. In particular by persons 1. Immediately appointed by the Act and therein note 1. What they are Sect. 29. 2. Their authority set forth 1. Generally Sect. 29. 2. Particularly 1. Touching his person Sect. 30. 2. As to his Estate and therein note 1. The way of discovering it 32 33 34. 2. The disposal of it Sect. 35. 2. Mediately authorised by Lord Chancellor 1 Their Commission Sect. 36. 2. Their authority 1. As to the Bankrupts person Sect. 39 40 41. 2. As to his Estate 2. What it is real 43 45 usque ad 57. personal 61 62 usque ad 71. 2. The means of discovery as to the persons the Bankrupt himself Sect. 73 74 75 76. the Bankrupts Wife Sect. 77. other persons what persons Sect. 78. proceeding with them to send for them Sect. 78. to examine them Sect. 78. to punish them 79 80 usque ad
86. allowance to them of charges Sect. 87. as to the goods by breaking open locks c. for them Sect. 72. 3. The disposal of it 1. By appraisement Sect. 88 c. 2. By sale Sect. 89 c. 3. By Ditribution to whom 89 90. of what 90 91 92 93 94 95 96 97 98. the time when not until 4 months c. Sect. 105 108. the manner Rate and Rate like Sect. 109. the effect of it to barr Sect. 112. to vest the property Sect. 113. to give means of Recovery Sect. 112. to restore to the Bankrupt his capacity Sect. 123. 3. Their accompt 4. Their remedy if sued CHARLES the Second by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To our trusty well beloved A. B. of E. in the County of D. Gent. S. M. of H. in the County of W. Esq Greeting Whereas we are informed that R. D. of L. in the City of London Merchant using and exercising the Trade of Merchandise by way of Bargaining Exchange Bartering and Chevisance seeking his Trade of living by buying and selling did become Bankrupt within the several Statutes made against Bankrupts to the intent to defraud and hinder T. B. of A. in the County of D. Gent. and W. P. of C. in the County of E. Esq and others his Creditors of their just Debts and Duties to them due and owing We minding the due execution as well of the Statute touching Orders for Bankrupts in the Parliament begun and holden at Westminster the second day of April in the thirteenth year of the Reign of our dear Sister Elizabeth late Queen of England made and provided As of the Statute made in the Parliament begun and holden at Westminster aforesaid the nineteenth day of March in the first year of the Reign of our late dear Grandfather King James of England France and Ireland and of Scotland the seven and thirtieth Intituled An Act for the better relief of Creditors against such as shall become Bankrupt And also of the Statute made in the Parliament begun holden at Westminster aforesaid the 19th day of February in the twenty first year of the Reign of our said late dear Grandfather K. James of England France and Ireland and of Scotland the seven and fiftieth Intituled An Act for the further description of a Bankrupt and relief of Creditors against such as shall become Bankrupt upon trust of the wisdoms fidelities diligence and provident circumspection which we have conceived in you do by these presents name assign appoint constitute and ordain you our special Commissioners giving full power and authority unto you four or three of you whereof you the said A. B. to be one according to the same Statutes and every or any of them not only concerning the said Bankrupt his body Lands Tenements Free-hold Customary Goods Debts other things whatsoever but also concerning all other persons which by concealment claim or otherwise do or shall offend touching the premises or any part thereof contrary to the true intent and meaning of the same Statutes or any of them to do and execute all and every thing things whatsoever as well for and towards satisfaction and payment of the said Creditors as towards and for all other intents and purposes according to the Ordinances and provision of the said Statutes Willing and commanding you four or three of you whereof you the said A. B. to be one to proceed to the execution and accomplishment of this our Commission according to the true intent and meaning of the same Statutes with all diligence and effect as our special trust is in you Witness Our self at Westminster the c. What a Bankrupt is and his Description 1. FIrst in General the word His Name Bankrupt is derived of the French word Banqueroutte which signifieth a breaking or becoming a Bankrupt and Banquerouttier signifieth a Bankrupt and faire Banqueroute is as much as solum vertere with the Romans the composition of the French word is from Banque which is as much as Mensa in Latine and route which is the same with Vestigium taken for a sign or mark left in the place from whence a Table had been removed in the same sence as we in English say a Cartroutte viz. the remaining impression of a Cart-wheel The Original seemeth to be taken from the Roman Mensarii who had their Tabernas and Mensas Tabernae being taken for Shops so called a tabulis quibus claâ—debantur and these were seated in publick places from which when they were disposed to slip away and delude their Creditors they left only of these Shops some Vestigia or signs behind them Vide Cowel Minshaw verbo Bankrupt 2. In the Statute of 34 H. 8. cap. His description 4. a Bankrupt is thus described viz. Whereas divers and sundry persons craftily obtaining into their hands great substance of other mens goods do suddenly flie into parts unknown or keep their Houses not minding to pay or restore unto any of their Creditors their Debts and Duties but at their own wills and pleasures consume the substance obtained by credit of other men for their own pleasures and delicate living against all equity and good Conscience 3. Now more particularly A Bankrupt is set forth and described in the several Statutes made against Bankrupts First by his Quality and Occupation Secondly by his Demeanour and Carriage 4. For the first as to his Quality His Quality and Occupation he is thus described by 13 El. chap. 7. and 1 Jac. chap. 15. If any Merchant or other person using or exercising the trade of Merchandizing by way of Bargaining Exchange Rechange Bartry Chevisance or otherwise in gross or by retail or seeking his or their Trade of living by buying and selling Subjects and being a Subject born of this Realm or of any the Queens Dominions or Denizen c. Which Statute as appears extends only to Subjects born or Denizens but the Statute of 21 Jac. cap. 19. extends likewise to strangers at the later end of which Statute there is this Proviso viz. Provided further and be it enacted c. that this Act and all other Acts of Parliament heretofore made against Bankrupts shall extend to Strangers born as well aliens as Denizens Strangers 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 5. A Shoo-maker may be a Bankrupt Shoomaker because he lives by buying of Lether and selling of it again in Shoos Crook part 3. fol. 31. Cramp and Barn An Inn-keeper is not within the Statutes of Bankrupts for although he buy provision to be spent in his house and utters it yet he doth not properly sell it but utters it at such Rates as he thinks to be reasonable gains and the Guests do not take it or contract for
use of the creditors of the said Bankrupt according to the true intent of the said former recited Statute of Bankrupts And that the same Grant Assignment or disposition of the said debts in form aforesaid to be made by the said Commissioners or 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 Recognizances Iudgment 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 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 to whom the same shall be due by any other person or persons according to the Custome of the City of London or otherwise But that the party or parties to whome 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 Vse Custome to the contrary thereof in any wise notwithstanding Provided always that no debtor of the Bankrupt be hereby endangered for the payment of his other debts truly and bona fide to any such Bankrupt before such time as he shall understand or know that he is become a Bankrupt Provided also and be it 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 Bankrupts of the imploying and bestowing of his her or their said lands tenements and hereditaments offices fees goods wares mony 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 the said thirteenth year of the said late Queens Majesties reign but also make payment of the overplus of the same if any such shall be to the said Bankrupts their 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 Any thing in this Act contained to the contrary in any wise notwithstanding Be it further enacted That if any Action of Trespass or other suit shall happen hereafter to be brought against any Commissioner authorized by the Statute made in decimo tertio of our late Sovereign Lady Queen Elizabeth for Bankrupts or any other person or persons having authority by vertue or under the Commission authorising the said Commissioner for the doing or executing of any matter by force of the said Statute or this present Statute 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 made in the thirteenth of Elizabeth 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 inforcing him or them to shew forth their Commission authorizing 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 joyned to be tried by verdict of 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 shâ—ll pass for the defendant the defendant to have his costs Provided always and be it further enacted That after any Commission of Bankrupts hereafter sued forth and dealt in by the Commissioners if the offendor happen to die beâ—ore the Commissioners shall distribute the Goods Lands and Debts of the offendors or any of them by force of the foresaid Statute of the thirteenth year of the Reign of our late Sovereign Lady Queen Elizabeth and this Statute or either of them That then nevertheless the said Commissioners shall and may in that case proceed in execution in and upon the said Commission for and concerning the offenders Goods Lands Tenemâ—nts Hereditaments and Debts in such sort as they might have done if the party Offenders were living Stat. 21 Jac. 19. 21 Jac. Chap. 19. A further description of a Bankrupt The Staâ—utes of 13 Eliz. 7. and 1 Jac. 15 enlarged FOr as much as daily experience sheweth that the number and multitude of Bankrupts do increase more and more and also the frauds and deceits invented and practised for the avoiding and deluding the penalties of the good Laws in that behalf already made and the remedy by them provided And for that divers defects are daily found in the former Statutes made against Bankrupts doth in the description of a Bankrupt as also in the power given to the Commissioners for the discovery and distributing the Bankrupts estate to the great incouragement of evil minded persons the hindrance of traffique and commerce the great decay overthrow and undoing of many Clothiers by whom many thousands of the natural born Subjects of this Realm be from time to time in all parts of this Kingdom set on work all which do tend to the general hurt of this Realm For remedy whereof be it enacted by the Kings most excellent Majesty the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same That all and singular the aforesaid Statutes and Laws heretofore made against Bankrupts and for relief of Creditors shall be in all things largely and beneficially construed and expounded for the ayd help and relief of the Creditors of such person or persons as already be or hereafter shall become Bankrupt And that all and every person and persons using or that shall use the trade of Merchandize by way of bargaining exchange bartering 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 receiving other mens moneys or estates into his trust or
the Law will not trust him with the distribution of his Goods vide Coke lib. 2. 26. a. Case of Bankrupts 29. Secondly more Particularly In particular the Bankrupts are to be proceeded against by Persons immediately authorized by Act of Parliament or mediately Touching the Bankrupts Person the persons immediately authorized are set forth by 34 H. 8. cap. 4. to be the Lord Chancellor or Lord Keeper for the time being Lord President Lord Privy-Seal oâ— other of the Kings most Honourable Privy-Counsel and the Chief Justice of either Bench for the time being or three of them at the least whereof the Lord Chancellor or Keeper of the Great Seal Lord Treasurer Lord President or the Lord Privy-Seal to be one who upon every complaint made to them in writing by any parties grieved shall have power and authority by vertue of the said Act to take by their wisdom and discretion such orders and directions as well with the bodies of the said offendors wheresoever they may be had as well in their houses as else where by imprisonment of their Bodies or otherwise as also with their Lands Tenements c. which they have in Fee-simple Fee-tail for term of life term of years or in the right of their wives as much as the interest Right and Title of the same offenders shall extend to or be and may then lawfully be departed with by the said offendors and also with their moneys goods chattels wares merchandises and debts wheresoever they may be found or known c. 34 H. 8. cap. 4. 30. So that the power given by the said Statute relates either to the person or estate of the Bankrupt First as to his person viz. If the offender doth withdraw out of the Kings Dominions to defraud his Creditors upon complaint thereof made in writing to the said Lords having authority as aforesaid they shall by vertue of the said Act have power to award Proclamations to be made in such places as to them shall be thought meet and convenient commanding by the same such offendor in the Kings name to return with all convenient speed into this Realm and to yield his body before the said Lords or one of them And if the said person within three months after he shall have notice of such Proclamation or so soon after as he conveniently may do not repair and yield his body as aforesaid That then the body of all and every such offender and offenders shall be adjudged taken and deemed to all intents and purposes out of the Kings protection and his Goods Chattels Lands Tenements and Debts shall be by the order and discretion of the said Lords employed and distributed amongst the offenders Creditors equally c. 34 H. 8. cap 4. 31. Secondly Touching the offendors Touching the Bankrupts estate estate observe more particularly first the power given to the Lords by 34. H. 8. for the discovering and obtaining of it Secondly for their disposal and ordering of it 32. First for the discovery and The discovery of it obtaining of it The effect of that Statute is That if after any such Act or offence committed and complaint thereof made to the Lords as aforesaid by any party grieved concerning the premises who knowing or suspecting any of the goods chattels wares merchandizes or debts of such offendors to be in the custody use or possession of any person or persons or any person or persons to be indebted to any such offendor or offendors do make relation thereof to the said Lords then they are impowred by the said Statute to send for and convent before them such person or persons so known or supposed to have any such goods wares c. in their custody or to be indebted to the offendor or offendors and upon their appearance to examine them and every of them as well by their Oaths as otherwise for and upon the specialty certainty true declaration and knowledg of all and singular such goods wares debts c. as be suspected to be in his or their custody use c. And if the person so examined do not plainly disclose the whole truth of such things whereof he shall be examined touching the premises then every such person or persons so examined and not declaring the plain and whole truth upon such proof thereof made before the said Lords as they shall judge sufficient in that behalf shall lose and forfeit double the value of all such goods wares c. so concealed to be levied by the said Lords by such ways and means as they shall think fit the same to be distributed to the Creditors in such manner as the Bankrupts Estate 34 H. 8. cap. 4. 33. And that if any person or persons do fraudulently by covin or collusion demand any debt or other thing by writing or otherwise of such offendor or offendors other than such as he or they can and do prove to be justly due before the said Lords that then every such person or persons so crastily demanding any such debt c. shall forfeit the double of what he shall so claim c. to be levied and imployed as aforesaid 34. So if the Bankrupt after he shall do those acts whereby he is declared Bankrupt shall suffer fraudulent recoveries against him of any debts goods c. upon complaint thereof to them made the Lords are impowred to convent before them the Recoverers and after such fraud discovered the said goods c. so recovered shall be chargeable to the Bankrupts debts and be disposed of to the Creditors notwithstanding such Recovery 34 Hen. 8. cap. 4. 35. Secondly Observe the power Disposal of the Bankrupts estate given by that Statute to the Lords for disposing and ordering of the Bankrupts Estate First they have power to cause the Bankrupts Lands Tenements Fees Offices Annuities Goods and Chattels Debts c. to be viewed rented and appraised Secondly To make a sale of the said Lands c. or otherwise to order the same for the true satisfaction and payment of the said Creditors rate and rate like according to the quantity of their debts Thirdly And that every direction order bargain sale and other things done by the said Lords as aforesaid in wâ—iting signed with their hands shall be good and effectual in the Law to all intents c. against the offenders their heirs and executors for ever as if done and executed by the offendors themselves 34 Hen. 8. chap. 4. Which Statute of 34 H. 8. although it be now out of use yet in regard I do not find itactually repealed I suppose it will not bethought altogether superfluous to be taken notice of The proceedings against and punishment of the Bankrupt by persons mediately authorised by Parliament 36. The next things considerable are the proceedings against and punishment of the Bankrupt by Commissioners Commissioners Their Commission or persons mediately authorized by Parliament wherein take notice First of their Commission and therein observe first from
Feoffment in Fee of all his Lands to defraud the Plaintiff of his action but this fraud was not pleaded Resolved by the Court it need not be pleaded specially but only given in evidence First because 13 Eliz. provides generally that the estate as to the Creditors shall be void and Acts of Parliament made to suppress fraud shall be favourably interpreted Secondly fraud and covin are so privily hatched that the party grieved hath no means to find them out and then to force the Plaintiff who is a stranger to plead it would be against reason Cook lib. 5. 60. Gooches Case 18. The Court shall not intend Fraud not intendible by the Court. fraud where it is not found by the Jury A. seized of Lands in Fee holden of I. L. of his Mannor of H. by Fealty Rent and rendring the best beast after the death of every Tenant in Fee-simple A. by Deed in consideration of love to his Son and heir apparent and a marriage between his Son and B. and for the Sons advancement infeoffs his said Son of the said Land the Son afterward to the end B. should not be endowed during his fathers life re-demiseth the Land to his father for 40 years if he lived so long The marriage took effect the Son did his suit and after the Feoffment the father paid the Lords Rent the father dies the Lord taketh his best Beast for an Herriot and in Trespass brought the Jury found all the special matter also the Statute of 13 Eliz. But it was resolved That in regard no fraud was found by the Jury the Court should not intend the said Feoffment to be fraudulently made and the same being found to be made in consideration of marriage shall not by construction of Law be taken to extend to any other intent nor to be fraudulent Cook lib. 10. 56. â—19 There are two manner of gifts Consideration upon good consideration First upon consideration of Nature and Blood Secondly a valuable consideration and the Statute of 13 Eliz. cap. 5. and the Proviso therein extends only to a valuable consideration for a gift made to defeat others must be made upon as hihg and good consideration as the things to be defeated are also every gift made upon trust is out of the said Proviso because it is not bona fide and a trust is either expressed or implied expressed when it is set down in or upon the gift implied when the gift is made without any consideration or upon consideration of Nature and blood Cook lib. 3. 81. b. Twines Case 27 Eliz. Chap. 4 Concerning Fraudulent Conveyances 1. BY the Statute of 27 Eliz. cap. 4. Stat. of 27 Eliz. Deceit of purchasers It is ordained and enacted That all and every Conveyance Grant charge lease estate incumbrance and limitation of use or uses of in or out of any lands tenements or other hereditaments whatsoever had or made at any time heretofore since the beginning of the Queens Reign or hereafter to be made for intent or purpose to defraud deceive such person and persons Bodies Politick or Corporate as have purchased or shall hereafter purchase in Fee-simple Fee-tail for life lives or years the same Lands Tenements or Hereditaments or any part thereof so formerly conveyed leased c. or to defraud and deceive such as have or shall purchase any Rent Profit or Commodity in or out of the same or any part thereof shall be deemed and taken only as against that person and persons bodies Politick and Corporate his and their heirs successors executors administrators and assigns and against all and every other person and persons lawfully having or claiming by from or under them or any of them which have purchased or hereafter shall so purchase for money or other good consideration the same Lands Tenements or hereditaments or any part thereof or any rent profit or commodity in or out of the same to be utterly void frustrate and of none effect 2. And be it further Enacted That all and every the parties to such feigned covenous and fraudulent gifts grants leases c. before expressed or being privy to or knowing of the same or any of them which after the 20th of April next coming shall wittingly or willingly put in ure justifie or defend the same or any of them as true simple and done or made bona fide or upon good consideration to the disturbance or hinderance of the said Purchasers c. shall incur the penalty and forfeiture of one Penalty years value of the said Lands Tenements and hereditaments so purchased or charged the one moiety to the Queen the the party grieved to be recovered in any of the Queens Courts of Record by debt bill plaint or information where no essoyn protection or wager of Law shall be admitted to the defendant or defendants and to suffer imprisonment for one half year without Bail or Mainprise 27 Eliz. chap. 4. 3. Provided that this Act shall not extend to any grant c. made upon good consideration and bona fide nor to any mortgage made bona fide without fraud and upon good consideration 27 Eliz. chap. 4. 4. And it is further enacted that Conveyance with clause of Revocation if any person or persons have since the Queens Reign that now is or shall hereafter make any conveyance gift grant demise charge or limitation of use or uses of in or out of any lands tenements or hereditaments with any clause or condition of Revocation determination or alteration at his or their will and pleasure of such conveyance c. of in or out of the said lands tenements or hereditaments or any part or parcel thereof and after such conveyance gift c. so had or made shall bargain sell demise grant convey or charge the same Lands Tenements or Hereditaments or any part thereof to any person or persons bodies politick or corporate for money or other good consideration payed or given the said first conveyance c. not being by him revoked made void or altered according to the power reserved That then the said former conveyance assurance c. as touching the said Lands Tenements and Hereditaments so after bargained c. against the said Bargainees Lessees and Grantees and every of them their heirs successors executors administrators and assigns shall be void c. 27 El. cap. 4. 5. J. C. had a Lease for 60 years Lease forged if he lived so long and he forged a Lease for ninety years absolutely and by Indenture reciting the forged Lease he bargained and sold the same and all his interest in the Land to R. G. R. G. is no purchaser for valuable consideration within the said Statute of 27 Eliz. because he contracted not for the true and lawful interest and although by the words his true interest passed yet he gave no valuable consideration for it Cook upon Littl. fol. 3. b. 6. One who intended to sell his The Act binds the King Lands had by fraud conveyed the same by
Deed inrolled to the Queen In this case the purchaser shall enjoy the Land against the Queen by the Statute of 27 Eliz. for that Act being general and made in suppression of fraud shall bind the Queen Cook lib. 11. 74. a. Magdalen Colledg Case 7. A man conveyed his Lands to Future power of Revocation the use of himself for life and after to the use of divers others of his blood with a future power of Revocation viz. after such a Feast or after the death of such an one c. and before the power of Revocation commenceth he for valuable consideration doth bargain and sell the same lands to another and his heirs this bargain and sale is within the remedy of 27. Eliz. cap. 4. for although the Statute saith the first conveyance not by him revoked which seems by the literal sence to be intended of a present power of Revocation for no revocation can be made by force of a future power before it comes in esse yet it was held that the intent of the Act was that such voluntary Conveyance that was originally subject to a power of Revocation be it in present or in future shall not stand against a purchaser who cometh in upon good and valuable consideration and bona fide Cook lib. 3. 82. Twines Case 8. Resolved That if a man hath Power of Revocation extinguished power of Revocation and after to the intent to defraud a purchaser he levy a Fine or make a Feoffment or other conveyance to a stranger whereby he extinguisheth this power and after he bargain and sell the lands to another for valuable consideration the Bargainee shall enjoy the Land for as to him the Fine Feoffment or other conveyance by which the condition was extinct was void by the said Act of 27 Eliz. And it was said that the said Act made voluntary Conveyances with power of Revocation in an equal degree as to purchasers with conveyances made to defraud purchasers Cook lib. 3. 82. b. Twines Case 9. If a man make a Lease for Consideration years by covin and fraud and after make another Lease bona fide without Fine paid or rent reserved the second Lease shall not a void the first for first it was agreed that by the Common Law an Estate made by fraud shall be only void against him that had a former right and not against him that had a puisne right or interest Secondly no purchaser shall avoid a precedent conveyance made by fraud or covin but he that is a purchaser for money or other valuable consideration and the words good consideration in the Act ought to be understood of valuable consideration only and not a consideration of nature or blood c. Cook lib. 3. 83. Twines Case 10 A man of little capacity and not able to govern the Lands descended to him and being disposed to riot and disorder by mediation of friends openly conveyed his lands to them upon trust and confidence that he should take the profits for his maintenance and that he should not have power to waste and consume them and after being seduced by persons he sold his Lands to them for a small sum of money And this bargain and sale although it was for money was held to be out of 27 Eliz. which Act was made against fraud and deceit and shall not aid any purchaser that cometh not to the Land for good consideration lawfully and without fraudor deceit but such a conveyance made upon trust were void as to him that purchaseth it for valuable consideration and bona fide Cook lib. 3. 83. b. Twines Case 11. If a man seized of Lands in Notice of the fraud Fee make a fraudulent Conveyance to the end to deceive and defraud a purchaser against the Statute of 27 Eliz. and continueth in possession and is reputed as owner and B. enter into communication with A. for the purchase of it and by accident B. hath notice of this fraudulent conveyance and yet notwithstanding he concludes with A. and taketh an assurance from him yet B. shall avoid this fraudulent conveyance by the said Act of 27 Eliz. notwithstanding his notice for the Act by express words makes the fraudulent conveyance void as to a Purchaser for the notice of a Purchaser cannot make that good which by Act of Parliament is void as to it Cook lib. 5. 60. 12. One after Marriage voluntarily Voluntary Conveyance assigns a Lease for years as it were in joynture for his wife and took the profits and after sold it to one who had no notice of this conveyance this was held to be within 27 Eliz. although at the first it was not made upon trust to be revoked c. because it was a voluntary conveyance at the first and shall be intended fraudulent at the beginning But if at the time of the Marriage or after by reason of a portion given by his wives friends in recompence thereof and for a Provision for maintenance of his wife he had made an assignment of such a Lease to his wives friends and had after taken the profits thereof as in reason he ought during his life and had then sold that Term yet it had not been within the said Statute Crook part 2. 158. Colvil vers Parker 13. A man Covenants for natural love c. to stand seized to the use of himself for life the remainder to his Son in Tail with a power of Revocation and a Proviso to make Leases for 21 years and after makes a Lease for 21 years for 30 lib. Fine paid Resolved That notwithstanding this voluntary and revokeable conveyance yet the Lease for years was absolutely good by 27 Eliz. and as to the Lessee the conveyance shall be construed as if it had been revoked and that the Lessor was then Tenant in Fee and it was also resolved That in case of a Lease for years made as before there had been a Rent only reserved it had been a good consideration and within the Statute and the making of such Lease was a revocation of the first Estate according to the Lease Crook part 2. 181. p. 19. Also it was resolved that the said Lease for years respect being had only to the Proviso and power thereby given was void for it being only a covenant and the consideration not extending to the Lease for years no use is raised to him thereby ibidem 14. Grandfather Father and Son the Grandfather upon the Fathers marriage makes the Wife of the Father a Joynture and at the same time covenants to demise other Tenements to the Father for 1000 years and after maketh such demise accordingly to commence after his death in which was a Proviso to make the same void upon the Fathers dying without issue or making a Lease not reserving the ancient Rent the Father after assigns the said Lease to the use of his Son an infant to the intent that it should not drown by the descent of the reversion and with the colourable purpose and intent that the infant should pay debts c. The Grandfather dies the Father enters into the Lands and taketh the Profits and makes Leases and doth other Acts as Owner and neither the Assignees nor Infant took any Profits or paid any Debts and the Assignment was made to divers persons of good reputation but the assignment it self was delivered into the hands of a person of mean quality The Father after bargains and sells the said Lands for a great sum of money by Deed inrolled By all which marks the said Lease and Assignment were taken to be fraudulent Cook lib. 6. 72. a. Burrells case 15. Resolved in the said Case That whereas the words of the said Act of 27 Eliz. are That all and every Conveyance Grant c. for the intent to defraud or deceive such persons as have purchased or shall purchase the same Lands c. shall be deemed only against such Purchaser void yet if the Father make a Lease by fraud and covin of his Lands to defraud others to whom he shall demise or sell it as all fraudulent demises shall be intended and before the Father sells or demiseth it he dieth and the Son knowing or not knowing the said Lease sell the Lands upon good consideration In this case the Vendee shall avoid the said Lease by the said Act of 27 Eliz. for the words of the Act are general and it is not needful that he who sold the Land should make the former Estate or incumbrance But if the Estate be fraudulent whosoever is the seller the Purchaser shall avoid such fraudulent Estate Also it was resolved That although the Father had nothing of Inheritance in the Land at the time of the assignment of the Lease but the inheritance was in the Grandfather yet when the Grandfather dieth and the Father sells the Land his Vendee shall avoid the said Term for if he had bargained and â—old the Term only the bargain should have avoided the fraudulent assignment and by consequence the Vendee of the whole Fee-simple shall avoid it Coâ—k lib. 6. 72. a. b. Burrells case 16. In Trespass The Plaintiff and Dâ—sendant claim by several Leases from the same man The Plaintiff in his Declaraâ—io◠〈…〉 the defendants Lease to be made by fraud but sheweth not any consideration payed by himself whereupon the Defendant Demurs Yelverton at Common Law there was not any fraud remedied to defeat an after purchase but that only which was committed to defeat a former interest which was granted and 27 El. doth not aid it for here is no consideration payed for the second Lease no more than for the first Lukener contra A thing obtained by a mans own act makes a man a purchaser within the said Statute and the fraud is confessed by the Demurrer Anderson the confession of the fraud is not material in regard the Plaintiff is not such a person as ought to have benefit thereby and within the remedy and provision of the Act and by that Act a fraudulent conveyance is not made void against all but only against such as come in upon valuable consideration Wamsey according and he said that a fraudulent gift of goods remains good against the donor but not against his Creditor by 13 Eliz. Crook part 1. 445. p. 8. Vpton vers Basset FINIS