THE Judges Resolutions Upon the Several Statutes Concerning BANKRUPTS WITH The like Resolutions on the Statutes of 13. Eliz. and 27. Eliz. touching fraudulent CONVEYANCES By GEORGE BILLINGHVRST of Grays-Inne Esq LONDON Printed for Henry Twyford in Vine-Court Middle-Temple 1676. I do allow the Printing of this Book Intituled The Judges Resolutions upon the Statute concerning Bankrupts 28th June 1676. FRA NORTH Gentle Reader THou hast here a methodical digestion of the several Statutes concerning Bankrupts presented to thy view together with such Expositions as have been made of the several parts of them by the Learned Judges of this Kingdom since they came forth And in regard the matter hereof may concern most men I thought it would not be unnecessary to be published For although there be a Reading in Print upon some of those Statures more full of abstruse Notions and Learning than this is yet I have some ground to believe that this will be thought for ordinary capacities and the generality of men much more useful I have also added hereunto the several Statutes of 13 El. and 27 El. touching fraudulent conveyances with the like Exposition of the Learned Judges on them in several cases annexed which may be likewise of use unto thee Farewel T. B. What a Bankrupt is and his Description 34. Hen. 8. Chap. 4. THe Lord Chancellor Treasurer c. shall take order with Bankrupts Bodies Lands and Goods for the payment of their Debts Al. 13 El. 7. 1 Jac. 15. 21 Jac. 19. 13 Eliz. Chap. 7. Who is a Bankrupt how and by whom his Body Lands and Goods shall be ordered for the payment of his Creditors FOrasmuch as notwithstanding the Statute made against Bankrupts in the xxxiiii year of the Reign of our late Sovereign Lord King Henry the eighth those kind of persons have and do still increase into great and excessive numbers and are like more to do if some better provision be not made for the repression of them And for a plain declaration to be made and set forth who is and ought to be taken and deemed for a Bankrupt Therefore be it enacted and established by the Authority of this present Parliament that if any Merchant or other person using or exercising the trade of Merchandize by way of Bargaining Exchange Rechange Bartry Chevisance or otherwise in gross or by retail or seeking his or her trade of living by buying and selling and being Subject born of this Realm or of any the Queens Dominions or Denizen sithence the first day of this present Parliament hath or at any time hereafter shall depart the Realm or begin to keep his or her House or Houses or otherwise to absent him or herself or take Sanctuary or suffer him or her self willingly to be arrested for any debt or other thing not grown or due for Money delivered Wares sold or any other just and lawful cause or good consideration or purposes hath or will suffer him or her self to be outlawd 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 is aforesaid of the just Debt or duty of such Creditor or Creditors shall be reputed deemed and taken for a Bankrupt And be it enacted by the Authority aforesaid That the Lord Chancellour of England or Lord Keeper of the great Seal of England for the time being upon every complaint made to him in writing against any such person or persons being Bankrupt as is before defined shall have full power and Authority by Commission under the great Seal of England to name assign and appoint such wise and honest discreet persons as to him shall seem good Who or the most part of them by vertue of this 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 Tenements Hereditaments as well Copy or Customary-hold as Free-hold which he or shee shall 〈…〉 ve 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 money or other recompence joyntly with his wife children or childe 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 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 money 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 Merchandizes and Debts to be searched viewed rented and appraysed to the best value they may and by Deed indented enrolled in one of the Queens Majesties Courts of Record to make sale of the said Lands Tenements and 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 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 and heirs childe and children and such person and persons as by such joynt 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 by the Authority aforesaid That all and every person or persons 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 have 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 unto the said Vendee or Vendees upon request the same Copy or Customary Lands or Tenements by Copy of Court Roll of the same Mannors for such estate or interest as to them shall be sold and reserving the antient Rents Customes and Services but also in the same Court admit them Tenants of the same Copy or Customary Lands as other Copyholders of the same Mannors have been wont to be admitted and to receive their fealty accordingly Provided always and be it enacted by the Authority aforesaid 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 Bankrupts of the imploying and bestowing of their said Lands Tenements Offices fees Goods Chattels and debts so payed 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 And be it further enacted by the Authority aforesaid that if after any such act or offence committed and complaint thereof made to the said Commissioners so to be appointed as is aforesaid or the more part of them by any party grieved as is aforesaid concerning the premisses knowing supposing or suspecting any of the goods chattels wares merchandizes or debts of such offender or offenders debtor or debtors to be in custody use occupying keeping or possession of any person or persons or any person or persons to be indebted to any such offender or offenders do make relation thereof to the said Commissioners so to be appointed or the more part of them that then the said Commissioners or the 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 by 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 merchandizes 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 examine them and every of them as well by their Oaths as otherwise by such ways and means as the said Commissioners or the more 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 merchandizes 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 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 examined 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 more part of them so to be appointed as is aforesaid by witness examination or otherwise as to the said Commissioners or the more part of them shall seem sufficient in that behalf shall lose and forfeit double the value of all such goods chattels wares merchandizes 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 more part of them of the Lands Tenements Hereditaments goods and chattels of such person 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 limited and appointed for the principal offender or offenders debtor or debtors and the same forfeiture or forfeitures to be distributed or imployed to and for the satisfaction and payments 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 offices fees goods and chattels of such offender or offenders debtor or debtors as is aforesaid And â—e it further enacted That if at any time before or after that any such person or persons departeth the Realm or shall keep his or their House or Houses or otherwise absent him or themselves or take sanctuary or suffer him or themselves to be arrested outlawd or yield his or their bodies to prison as is aforesaid any person or persons do fraudulently by covin or collusion claim demand recover possess or detain any debts duties goods chattels lands or tenements by writing trust or otherwise which were or shall be due belonging or appertaining to any such offender or offenders other than such as he or they can and do prove to be due by right and conscience in form aforesaid for money payed wares delivered or other just consideration or cause reasonable to the just value thereof before the said Commissioners so to be appointed or the more part of them as is aforesaid and the same to proceed bona fide without fraud or coâ—vin that then every such person or persons so craftily demanding claiming having possessing or detaining any such debt duty or other thing as is aforesaid shall forfeit and lose double as much as he or they shall so claim demand detain or possess which said forfeiture shall â—e levied â—ecovered and imployed in manner and form as is afore rehearsed Provided also and be it enacted by Authority aforesaid that if it shall fortune the creditors of any such Bankrupt as is aforesaid to be satisfied and paid of 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 every City Town or County where any such Bankrupt shall happen to be Any thing in this Act to the contrary thereof not withstanding And be it further enacted by
Authority aforesaid that if any such person or persons which is or shall be indebted do of purpose withdraw him or themselves out or from his or their usual mansion house or houses that then upon complaint thereof made to the said Commissioners having authority as is aforesaid the same Commissioners or the more part of them shall by vertue and authority of this present Act have full power and authority to award five Proclamations to be made in the Queens name upon five sundry Market dayes in such places near the place where such Bankrupt hath most commonly dwelled or made his abode commanding him or them by the same Proclamations in the Queens name to return with all convenient speed and to yeeld his or their bodies before the said Commissioners having authority as is aforesaid or one of them at such time and place as by the said Proclamation shall be appointed and if the said person be not according to such Proclamation repair and yield his or their body as is aforesaid that then the body of all and every such offender or offenders shall be adjudged taken and deemed to all intents and purposes out of the Queens protection and that also every person and persons that shall willingly and wittingly help to hide or convey or shall wittingly and willingly receive detain or keep secretly any person or persons so demanded by Proclamation as is aforesaid shall suffer such pains by imprisonment of his or their bodies or to pay such fine to our Sovereign Lady the Queens Majesty her Heirs and Successors as to the said Lord Chancellor or Lord Keeper of the great Seal being informed thereof by the Commissioners so to be appointed as is aforesaid or the more part of them shall seem meet and convenient for their said offence or offences Provided always and be it further enacted that if the Creditors of any such offender or offenders debtor or debtors which so do depart the Realm keep his or their house or houses or otherwise absent or withdraw him or themselves into places unknown or take Sanctuary or will suffer him-or themselves to be arrested or outlawed or yield his or their bodies into prison purposely and for the causes aforesaid be not fully satisfied or otherwise contented for their debts and duties by the way and means before specified and declared that then the said Creditor or Creditors and every 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 payd or otherwise contented in form aforesaid against the said offender or offenders in like manner and form as they should and 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 said persons as is aforesaid and of no more portion or parcel thereof Any thing herein specified that may be taken or construed to the contrary notwithstanding Provided always and be it also enacted by authority aforesaid that if any person or persons which is or shall be published and declared to be a Bankrupt by vertue of this Act shall at any time 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 goods or chattels shall descend revert or by any means come to any such person or persons being Bankrupts as is aforesaid before such time as their debts due to their creditors shall be fully satisfied and payed 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 to be appointed as is aforesaid or the more part of them be bargained sold extended delivered and used for and towards the payment of the 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 alwayes that this Act shall not extend to any lands tenements or hereditaments free or copy-hold which heretofore have been assured by any such Bankrupt or hereafter shall be assured by any Bankrupt before he become 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 1 Jac. 15. 21. Jac. 15. 1 Jacob. Chap. 15. An Exposition and addition to the Statutes of Bankrupts made 13 Eliz. 7. FOr that fraud and deceits as new diseases dayly increase amongst such as live by buying and selling to the hindrance of traffick and mutual commerce and to the general hurt of the Realm by such as wickedly and wilfully become Bankrupts And for that the description of a Bankrupt in former Statutes is not so fully expressed nor the power given thereby to the Commissioners for Bankrupts so large as is meet in such cases of deceit to prevent the deceitful actions of Bankrupts For remedy whereof Be it therefore enacted by our Sovereign Lord the King and by the Lords Spiritual and Temporal and the Commons at this present Parliament assembled and by the authority of the same That all and every such person and persons using or that shall use the trade of Merchandize by way of bargaining exchange bartrie chevisance or otherwise in gross or by retail or seeking his her or their trade of living by buying and selling and being a Subject born of this Realm or any the Kings Dominions or Denizen who at any time sithence the first day of this present Parliament or at any time hereafter 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 money delivered wares sold or any other just or lawful cause or good consideration or purposes or hath or will suffer him or her self to be outlawed or yield him or her self to prison or willingly or fraudulently hath or shall procure him or her self to be arrested or his or her goods money or chattels to be attached or sequestred or depart from his or her dwelling house or make or cause to be made any fraudulent grant or conveyance of his her or their Lands 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 adjudged a Bankrupt to all intents and purposes 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 Act of Parliament made in 13 nuper Eliz. Reginae against any Bankrupts therein described for or concerning his her or their lands tenements hereditaments fees annuities offices goods chattels wares merchandizes and debts or any of them shall be had pursued taken and expounded against such person and persons that are herein expressed to be Bankrupts his her and their lands tenements hereditaments fees annuities offices goods chattels wares merchandises and debts in such like manner and form as the same ought or might have been if the persons herein described to be Bankrupts had been described to be Bankrupts according to the intent of the said former Statute And that it shall be lawful for any of the creditors of the said Bankrupt within iiii 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 joyn with the other Creditors thatâ— 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 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 iiii months then the Commissioners to have power to distribute Be it further enacted that if any person which hereafter is or shall be a 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 leases goods chattels or transfer his debts into other mens names 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 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 shee became 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 And for that the practises of Bankrupts of late are so secret and so subtile as that they can very hardly be found out or brought to light and for that the former statute giving power to the Commissioners to examine others than the Bankrupts hath not fully or sufficiently authorized them to examine the said Bankrupt upon oath For remedie whereof Be it further enacted by the authority of this present Parliament That the said Commissioners may call before them or the greater part of them the said Bankrupt and if upon lawful warning left or 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 from thenceforth it shall be lawful for the greater number of the said Commissioners to appoint to proclaim the said party a Bankrupt at such publick place or places where the said Commissioners or the greater part of them shall think meet warning him her or them to appear before them upon the said Commission at some time appointed And that if upon the five several Proclamations made in some publick place the party offending appear not before the said Commisiioners and yield his her or their bodies to them or some of them the said Commissioners or the greater part of them shall or may award a Warrant to such fit person or persons as they think meet to apprehend the body and bodies of the said offenders and offenders and to bring him her or them so offending 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 greater part of them And that it shall be lawful for the said Commissioners or the greater part of them to examine the said offender or offenders upon such Interrogatories touching the Lands tenements goods chattels debts bills bonds books of account and such other things as may tend to disclose his her or their estate or the secret grants conveyances and eloyuing of his or their lands tenements goods money and debts as they shall think meet And that if therein the offender or offenders shall refuse to be examined or to answer fully to every Interrogatory to him to be ministred 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 strait or close imprisonment there to remain untill he she or they shall better conform him or her self And that if upon his her or their examination it shall appear that he 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 ten pounds of lawful money of England or above the party so offending shall or may thereof be indicted in any of the Kings Majesties Courts of Record and being lawfully convicted thereof shall stand upon the Pillory in some publick place by the space of two hours and have one of his ears nailed to the pillory and cut off And
whereas by the former Statute made in the said thirteenth year of the reign of the late Queen Elizabeth the Commissioners for Bankrupts have power given to them to send for such person or persons as the creditors shall know suppose or suspect to have detain or keep any part of the mony goods chattels or debts of the said offender or offenders or to be indebted to the said offender or offenders to be examined by the said Commissioners as by the same Statute appeareth but have not good means or remedy by imprisonment or other penalty to procure the person so sent for by them to appear before them nor having appeared before them to make answer upon his oath to such Interrogatories as shall be ministred unto him by the said Commissioners for and upon the specialty certainty true declaration and knowledge of such lands tenements hereditaments goods debts or other things of any such offender or offenders as be or shall be or which shall be suspected to be in his custody use or possession or in the custody use or possession of any other to his knowledge and of all debts owing to or for the benefit of such offender or offenders by himself or by any other to his knowledge so as many times a great part of the offender or offenders lands tenements hereditaments goods chattels or debts which by the true intent of the said Statute should be imployed to the satisfaction of the creditors of the offendor or offenders are concealed or detained in the hands of such person and persons as refuse to come or being come refuse to be sworn before the said Commissioners to be examined in that behalf to the great encouragement of all Bankrupts and their wicked confederates and accessaries and to the great hindrance of the just remedies of the creditors of the said Bankrupts for their true and just debts to them owing For remedy whereof be it further enacted by the authority aforesaid 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 more part of them and which shall be then signified or 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 appear before them at such time as he or she lawfully may come having no such lawful impediment as shall be then 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 Interrogatories as shall be ministred unto him or them according to the true intent and meaning of the said Statute made in the said thirteenth year of the reign of our said late Sovereign Lady Queen Elizabeth or of this present Act That then it shall be lawful for the said Commissioners or for the greater part of them to commit to such Ward and Prison as to them or to the greater part of them 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 or 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 above-said and upon his her 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 person 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 â— and of this present Act. Provided alwayes that such Witnesses as shall so be sent for shall have such costs and charges as the Commissioners in their discretion shall think fit The same charges to be ratably born by the Creditors of the said Bankrupt according to the proportion of each of their several debts And if any person oâ— 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 wilfull peâ—jury by his deposition to be taken before the said Commissioners or the greater part of them as aforesaid That then the party or parties so offending and all and every person and persons that shall unlawfully and corruptly procure any such unlawful wilful and corrupt perjury shall or may therefore be indicted in any of the Kings Majesties Courts of Record and after his or their conviction thereof shall incur such forfeiture and receive and suffer such pains and punishment as are limited by the Statute made concerning Perjury in the fifth year of the Reign of our said late Sovereign Lady Queen Elizabeth And be it further enacted That all and every sum and sums of money which shall be forfeited by force of this present 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 money so recovered the charges of suit being deducted shall be distributed and divided towards the payment of the said creditors of the Bankrupt And for that the power authority given to the Commissioners of Bankrupts touching the debts due to the said Bankrupts is not so full and perfect as that the full benefit thereof in due course might be imployed to the use of the said Creditors as was intended For remedie thereof Be it further enacted by the Authority aforesaid That the Commissioners of Bankrupts or the greater part of them all 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 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
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
convicted he or shee so convicted shall be set upon the Pillory in some publick place for the space of two hours and have one of his or her ears nailed to the Pillory and cut off And for that some doubt is conceived whether the Commissioners in case of resistance have power by the former Laws to break open or cause to be broken open the House or Houses of such Bankrupts which if they have not the remedies by the former Laws given will be to little effect Be it therefore 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 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 seize upon and order the body Goods Chattels ready Money 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 to the said Commissioners or the greater part of them shall be thought meet And for the better division and distribution of the Lands Tenements Hereditaments Goods Chattels and other Estate of such Bankrupts to and amongst his or her Creditors Be it enacted that the Commissioners or the greatest part of them shall and 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 and Creditors as shall seek relief by such course or Commission to be sued forth as aforesaid And that all and every Creditor Creditors having security for his or their several Debts by Iudgment Statute Recognizance Specialty with penalty or without penalty or other security or having no security or having made Attachment in London or any other place by vertue of any custome there used of the Goods and Chattels of any such Bankrupt whereof there is no execution or Extent served and executed upon any the Lands Tenements Hereditaments Goods Chattels and other estate of such Bankrupt before such time as he or she shall or do become Bankrupt shall not be relieved upon any such Iudgment Statute Recognizance Specialty Attachments or other security for any or more than a ratable part of their just and due debts with the other Creditors of the said Bankrupt without respect to any such penalty or greater sum contained in any such Iudgment Statute Recognizance Specialty with Penalty Attachment or other Security And be it further enacted that if it shall happen any the Lands Tenements Goods Chattels Debts or other estate of any Bankrupt to be extended after such time as he or she is become a Bankrupt by any person or persons under colour or pretence of his or their being an Accomptant or any way indebted unto our Sovereign Lord the Kings Majesty his Heirs or Successors that then it shall be lawful to and for the said Commissioners to examine upon oath whether the said Debt were due to such Debtor or Accomptant upon any bargain or contract originally made betwixt such Accomptant and the said Bankrupt the said Debtor or Accomptant and his or their servants And if such bargain or contract was originally made to and with any other person or persons than the said Debtor or Accomptant or for the use and trust of any other person or persons than it shall and may be lawful to and for the said Commissioners or the greater part of them to order and dispose of all such Lands tenements Hereditaments Goods Chattels and Debts so extended as aforesaid to and for the use of the Creditors which shall seek relief by the said Commission And that the order and disposition of the said Commissioners or the greater part of them shall be good and available a gainst the said extent and against all persons claiming from by or under the said extent And that such person or persons to whom the said Lands Tenements Goods and Chattels so extended shall be bargained sold granted or assigned by the Commissioners aforesaid or the greater part of them shall have good remedy to have demand and recover the same against such person and persons who shall detain the same And for that it often falls out that many persons before they become Bankrupts do convey their Goods to other men upon good consideration yet still do keep the same and are reputed the owners thereof and dispose the same as their own Be it enacted that if at any time hereafter any person or persons shall become Bankrupt and at such time as they shall so becōme Bankrupt shall by the consent and permission of the true owner and proprietary 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 which shall seek relief by the said Commission as fully as any other part of the estate of the Bankrupt and for the better payment of debts and discouraging men to become Bankrupts Be it further enacted that the said Commissioners or the greater number of them shall have power by vertue of this Act by deed indented and enrolled within six months after the making thereof in some of his Majesties Court of Record at Westminster to grant bargain sell and convey any Mannors Lands Tenements or Hereditaments whereof any Bankrupt is or shall be in any ways seized of any estate in tail in possession reversion or remainder and whereof no reversion or remainder is or shall be in the Kings 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 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 whom 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 any the said Mannors
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
whom obtained the Lord Chancellor of England or Lord Keeper of the Great Seal for the time being upon every complaint made unto him in writing against any such person or persons being Bankrupt shall have full power and authority by Commission under the Great Seal to name and appoint such honest and discreet persons as to him shall seem meet c. 13 Eliz. cap. 7. Secondly by whom to be obtained by the Creditors Thirdly when to be obtained it must be within five years after that the party shall become a Bankrupt or else it is not to prejudice purchasers 21 Jac. chap 19. the words of the Statute are Provided that no purchaser for good and valuable consideration shall be impeached by vertue of this Act or any other Act against Bankrupts unless the Commission to prove him or her a Bankrupt he sued forth against such Bankrupts within five years after he or she shall become a Bankrupt ibid. Family The duration of the Commission it is not determined by the Bankrupts death for bâ— 1 Jac. cap. 15. it is thus enacted Provided always and be it enacted that 〈◊〉 after any Commission of Bankrupts hereafter sued forth and dealt in by the Commissioners the offendor happen to die before the Commissioners shall distribute the Goods Lands and Debts of the offendors or any of them by force of the aforesaid Statute of 13 Eliz. and this Statute or either of them That then nevertheless the said Commissioners shall and may in that case proceed to execution in and upon the said Commission for and concerning the offendors goods lands tenements hereditaments and debts in such sort as they might have done if the party offendor were living 1 Jac. 15. 37. If such or such number of the Commissioners die so that the rest cannot proceed and thereupon a new Commission be granted to other Commissioners they may call the surviving Commissioner or Commissioners before them to give accompt for such part of the Bankrupts estate whereof the old Commissioners made no distribution as persons who have the Estate of the Bankrupts in their hands Stones Lecture fol. 19. and 187. 38. Secondly Note the authority given the Commissioners so commissionated as aforesaid by several Acts of Parliament First as touching the Bankrupt himself Secondly as touching his Estate 39. First as to the Bankrupt himself To cause the Bankrupt to appear by the Statute of 13 El. chap. 7. it is thus set forth And be it enacted that if any such person or persons which is or shall be indebted do of purpose withdraw him or themselves out of or from his or their usual mansion house or houses that then upon complaint thereof made to the said Commissioners the same Commissioners or the more part of them shall by vertuâ— and authority of this presâ—nt Aâ—â— have full power and authority to awaâ—â— five Proclamations to be made in the Proclamations Queens Name upon five sundry Market-days in such places near the place when such Bankrupt hath most commonly dâ—elled or made his abode commanding hiâ— or them by the said Proclamations in the Queens name to return with all convenient speed and to yield his or their Body before the said Commissioners or one of them at such time and place as by the said Proclamation shall be appointed and if the said Person or persons do not according to such Proclamation repair and yield his or their body as aforesaid thaâ— then the body of all and every such offendor or offendors shall be judged taken and deemed to all intents and purposes out of the Queens Protection And that every person and persons that shall willingly or wittingly receive dâ—tain or keep secretly any person or persons so demanded by Proclamation as is aforesaid shall suffer such pain of imprisonment of his or their bodies or pay such Fine to our Soveraign Lady the Queens Majesty her heirs and Successors as the said Lord Chancellor or Lord Keeper of the Great Seal being informed thereof by the Commissioners so to be appointed as is afore said or the more part of them shall seem meet and convenient for their said offence or offences 13 Eliz. chap. 7. 40. And by the Statute of 1 Jac. Warninâ— left in writing chap. 15. The said Commissioners may call before them or the greater part of them the said Bankrupt and it upon lawful warning left in writing at three several times at the dwelling place or house where the said Bankrupt his wife or family for the most part of his abode did lodge or remain within one year next before he she or they became Bankrupt the said Bankrupt shall not appear before the said Commissioners or the greater part of them that then and from â—henceforth it shall be lawful for the greater number of the said Commissioners to appoint to proclaim the said party a Bankrupt at such publick place Proclamation or places where the said Commissioners or the greater part of them shall â—hink meet warning him her or them to appear before them upon the said Commission at some time appointed And that if upon five several Proclamations made in some publick place the party offending appear not before the said Commissioners and yield his her or their bodies to them or some of theâ— the said Commissioners or greater parâ— of them shall or may award a warrant 〈◊〉 such fit person or persons as they shâ—â— think meet to apprehend the body aâ—â— bodies of the said offendor and offendors and to bring him her or themâ— offending before the said Commissionerâ— wheresoever the said party or parties 〈…〉 fending may be sound in places privâ—ledged or not to be examined by 〈◊〉 said Commissioners or the greater 〈◊〉 Breaking open houses c. to take the Bankrupts of them 1 Jac. chap. 15. 41. And by 21 Jac. chap. 19. Tâ— said Commissioners or the greater pâ—â— of them in execution of the said Coâ—mission or any other person or persoâ— by them to be deputed by their warrâ— or warrants under their hands or seâ— have power to break open the house 〈◊〉 houses Chambers Shops c. of the 〈◊〉 Bankrupt where the said Bankrupt 〈◊〉 his goods c. shall be and to seize upoâ— and order the person c. of such Barâ—rupt as by former Laws are appointeâ— c. 21 Jac. 19. And by 13 Eliz. châ— 7. The said Commissioners have power given them to take order by their discretion with the body of the Bankrupt wheresoever he or she may be had either in his or her houses Sanctuary or elsewhere c. Ibid. 42. Secondly Observe the power of the Commissioners as to the estate of the Bankrupt and therein take notice First of what estate Secondly the means for the discovery and obtaining of it Thirdly their disposal of it Of what Estate of the Bankrupts the Commissioners may dispose 43. First Of the Bankrupts real Real Estate Estate Lands tenements and hereditaments as well Copy-hold or Customary-hold as
free-hold which he or she shall have in his or her own right before he or she became Bankrupt c. 13 El. chap. 7. 44. It is made by Mr. Stone a Quere in his Lecture That if there be two joyntly and the one become Bankrupt and dies whether his part shall be sold because the survivor is not in by him But it seems to me that the Bankrupts part shall be sold and that there shall be no survivor in this case First because the Bankrupts moiety is bound by the Statutes by his becoming a Bankrupt Secondly the Bankrupt had power to sell the same in his life time and might depart with it and so within the words of 13 Eliz. cap. 7. the words are such use interest right or title as such offendor or offendors that shall have in the same which he or she may lawfully depart withal vide after Sect. 46. Thirdly by 1 Jac. chap. 15. The Commissioners after the Bankrupts death may proceed in execution in and upon the Commission for and concerning the offendors Lands Tenements c. in such sort as if the offendor had been living which they cannot do in the case before if the survivorship take place 45. It was agreed by the Justices Copy-hold that Copy-holds are within the intent and purliew of all the Statutes concerning Bankrupts and may be sold by the Commissioners some doubt whereof was made because they are named in one clause of 13 El. and not in 1 Jac. chap. 15. or 21 Jac. chap. 19. for the same being in the first Statute and the other Statutes being made in further confirmation and approbation thereof they ought to be expounded liberally and shall be construed accordingly to make as strong provision as they may against the Bankrupt Crook 3. part 550. Crisp against Prat. 46. And all such Lands tenements 2. Lands purchased joyntly with the wife hereditaments as such person viz. the Bankrupt shall have purchased or obtained for money or other recompence joyntly with his wife children or child to the only use of such offendor or offendors or such use interest right or title as such offendor or offendors then shall have in the same which he or she may lawfully depart withal 13 El. cap. 7. 47. A man purchaseth Lands to him and his wife and his son and two years after he becomes a Trader and four years after he becomes a Bankrupt these Lands shall not be sold by the Commissioners of Bankrupt and are out of the meaning of the Statute for else none might know with whom to deal by way of marriage or otherwise when a person who is not a Tradesman settles Lands upon his wife and children bonafide and after becoming a Tradesman and then a Bankrupt the said Acts of Parliament shall overthrow a Conveyance so duly setled Crook 3 part fol. 550. Crisp versus Prat. 48. Lands Tenements c. which 3. Lands in trust any person or persons hath in trust to any secret use of any such offendor or offendors c. 13 Eliz. chap. 7. Lord and Tenant are the Tenant makes a Feoffment to deceive the Lord of the Wardship and then becomes a Bankrupt these Lands shall be sold by the Commissioners for although the conveyance was only fraudulent as against the Lord yet there was a trust between the Feoffor and Feoffee Stones Lecture fol. 185. 49. Manors Lands Tenements 4. c. conveyed or procured or caused to be conveyed by the Bankrupt to any of his children or other person or persons except the same shall be purchased or conveyed for or upon marriage of any of his or her children both the parties married being of the years of consent or some valuable consideration 1 Jac. 15. 50. A Tradesman in consideration of marriage makes a conveyance of Lands to the use of himself and his wife and held to be within the Statute of 1 Jac. vide Stiles reports fol. 288. Tucker vers Cosh 51. Also the said Commissioners 5. Lands conveyed upon condition have power to sell Lands and Tenements conveyed upon condition by 21 Jac. cap. 19. where it is thus If any person that now is or hereafter shall become a Bankrupt have heretofore granted conveyed or assured or shall at any time hereafter grant convey or assure any Lands Tenements Hereditaments goods Chattels or other Estate unto any person or persons upon condition or power of redemption at a day to come by payment of money or otherwise that it shall and may be lawful to and for the said Commissioners or the greater part of them before the time of the performance of such condition to assign and appoint under their hands and seals such person or persons as they shall think fit to make tender or payment of money or other performance according to the nature of such condition as fully as the Bankrupt might have done And that the said Commissioners or the greater part of them shall after such tender payment or performance have full power to sell and dispose of such Lands c. so conveyed upon condition for the benefit of the Creditors as fully as they may sell or dispose of any the estate of the Bankrupt 21 Jac. Chap. 19. 52. Quere whether the Commissioners may not by the equity of this Stat. appoint one to enter for a condition broken As if a trader makes a Feoffment upon condition to be performed on the part of the Feoffee the Feoffee breaks the Condition and before entry the Feoffor becomes a Bankrupt It should seem the Commissioners may take advantage hereof for the Statutes shall be liberally expounded for relief of the Creditors if not yet it seems to be comprehended within the words of 13 El. cap. 7. whereby power is given to the Commissioners to take order and direction with the Bankrupts Lands c. for such use interest right or title as such offendor or offendors shall have in the same which word Title includes as I conceive an entry for a condition broken yet Stone makes a quaere of it in his Lecture fo 12. 53. Lands Tenements c. intailed Lands intailed The Commissioners or the greater number of them shall have power by deed indented and inrolled within six months c. to grant bargain sell and convey any Manors Lands Tenements or Hereditaments whereof the Bankrupt is or shall be in any wise seized in Tail in possession reversion or remainder and whereof no reversion or remainder is or shall be in the Kings Majesty his Heirs or Successors of the gift or provision of his Majesty his Progenitors Heirs or Successors to any person or persons for the relief and benefit of the Creditors of all such Bankrupts And that all and every such grants c. shall be good and available in Law against the Bankrupt his Issue and all claiming by from or under him since the time that he became Bankrupt and also against all other persons whom the Bankrupt by common Recovery or
other ways or means might cut off or debar from any Remainder Reversion Rent Profit Title or possiblity into or out of any of the said Manors Lands Tenements or Hereditaments 21 Jac. cap. 19. 54. Also Lands Tenements c. Lands descended purchased by or descended or come to the Bankrupt before his debts payed or agreed for as appears by 13 Eliz. cap. 7. where it is thus That if any person or persons which is or shall be published and declared to be a Bankrupt by vertue of this Act shall at any time hereafter purchase any Lands Tenements Hereditaments Free or Copy or Offices Fees Goods or Chattels or that any Lands Tenements Hereditaments Free or Copy Offices Fees Goods or Chattels shall descend revert or by any means come to any such person or persons being Bankrupts as is aforesaid before such time as their debts due to their Creditors shall fully be satisfied and payed or otherwise agreed for That then the said Lands c. shall be sold by the said Commissioners or the more part of them for and towards the payment of the Creditors in such manner as other Lands c. of the Bankrupts which they had when they were first declared to be Bankrupts should or might have been c. 13 El. cap. 7. 55. If after the commission awarded c. and distribution made of all the Bankrupts Estate towards the satisfaction of the Creditors every Creditor having an equal part Lands Goods c. descend or come to the Bankrupt Mr. Stone makes a quere fo 17. whether in such case they shall be subject also to a new sale or distribution And it seems that they shall for the Commissioners power is not fully executed until the Creditors be satisfied 56. The Commissioners have also Lands exteâ—ded power to sell Lands Tenements c. of the Bankrupts extended by such as pretend to be accomptants to the King by 21 Jac. cap. 19. It is thus If iâ— shall happen any Lands Tenements c. Goods Chattels Debts or other Estate of any Bankrupt to be extended after such time as he or she is become a Bankrupt by any person or persons under colour or pretence of his or their being accomptant or any ways indebted unto our Soveraign Lord the King's Majesty his Heirs or Successors That then it shall and may be lawful to and for the said Commissioners to examine upon Oath whether the said debt were due to such debtor or accomptant upon any bargain or contract originally made between such accomptant and the said Bankrupt c. and his or their Servants And if the said Bargain or Contract was originally made to and with any other person or persons than the said Debtor or Accomptant or for the use or trust of anyother person or persons Then it shall and may be lawful to and for the said Commissioners or the greater part of them to order and dispose of all such Lands c. to and for the use of the Creditors which shall seek relief by the said Commission And that the order and disposition of the said Commissioners or the greater part of them shall be good and available against the said extent And that such person and persons to whom the said Lands c. shall be bargained sold c. by the said Commissioners as aforesaid or the greater part of them shall have good remedy to have demand and recover the same against such person or persons that shall detain the same c. 21 Jac. cap 19. 57. The Commissioners cannot Lands conveyed by the Bankrupt bonafide sell any Lands Tenements Hereditaments conveyed by any such Bankrupt bonafide before he became Bankrupt At the later end of 13 El. cap. 7. there is such a Proviso viz. Provided always that this Act shall not extend to any Lands Tenements or Hereditaments free or copy-hold which heretofore hath been assured by any such Bankrupt or hereafter shall be assured by any Bankrupt before he became Bankrupt so that always such assurance be made bonafide and not to the use of the Bankrupt himself only or his Heirs And that the parties to whose use such assurance hath or shall be made be not at or before the making of such assurance privy or consenting to the fraudulent purpose of any such Bankrupt to deceive his Creditors 13 El. cap. 7. 58. It was resolved Cook lib. 2. 26. a. case of Bankrupts by the Court That the Proviso concerning gifts and grants bona fide doth not make any gift or grant good which the Bankrupt made after that he became Bankrupt but to exclude him out of the penalty of the Act I suppose this resolution should be applied to that part of 13 El. cap. 7. which imposeth the penalty or forfeiture of double the value for detaining or possessing fraudulently by covin or collusion any debts c. Lands Tenements c. of the Bankrupts other than such as are due c. and the same to proceed bona fide without fraud or covin c. although in Poulton the said Book and resolution be quoted in the Margine opposite to the Proviso before set down in Sect. 57. 59. Also the Chattels and Goods Personal Estate of the Bankrupts are saleable c. by the Commissioners 13 El. cap. 7. I. Chattels Real Chattels real as Leases for years A Lease for years is made Provided that the Lessee shall not alien the Lessee becomes a Bankrupt It is a Quaere in Mr. Stones Lecture fo 15. whether the sale of the Commissioners to be a forfeiture To which it may be answered in the negative that it is not because this interest is transmitted by Act of Parliament to which every man is intended party and not by sale of the Lessee 60. Offices are likewise mentioned Offices in 13 Eliz. cap. 7. and made saleable by the Commissioners which by Stone in his lecture fo 13. is intended to be Offices of Inheritance c. as the Warden of the Fleet and such like and not Offices of Trust c. And by 3 H. 7. cap. 12. any Offices which concern the administration of Justice or Clerkship in any Court of Record or which concern the Kings Treasure Revenue Customs c. cannot be bargained or sold for Money but such bargain and sale is void and both buyer and seller made incapable c. Therefore doubtless such offices cannot be assigned by the Commissioners in satisfaction of a Debt of the Bankrupts nor are comprehended within the said Statute there being other Offices that may be sold and so the words of the Statute satisfied and Offices of Trust are individually annexed to the person vid. Coke lib. 9. 48. a. The Earl of Sbrewsburies case 61. Secondly The Bankrupts personal 2. Chattels personal Estate Goods or Chattels of the Bankrupt wheresoever to be found by 13 El. cap. 7. are made saleable by the Commissioners They may sell a Bankrupts goods in Ireland Stone in his Lecture fo 90.
then the said Commissioners or the more part of them shall have full power and authority to send for and call before them by such process ways and means as they shall think convenient all and every such person or persons so known or suspected to have any such goods chattels wares c. in his or their custody use occupation keeping or possession or supposed or suspected to be indebted to such offendor or offendors And secondly to examine them upon their appearance the Commissioners may examine them and every of them as well by their oaths as otherwise by such means as the said Commissioners or the more part of them shall think fit for and upon the specialty certainty and true declaration and knowledge of all and singular such goods chattels wares merchandizes and debts of any such offendor or offendors as be supposed or suspected to be owing to any such offendor or offendors 13 Eliz. chap. 7. 79. And in the next and third Refusing to come before the Commissioners place take notice of the punishment of such other persons first for their refusing to come before the Commissioners or to be sworn and make answer And by the Statute of 1 Jac. chap. 15. It is set forth that no good means was appointed by 13 Eliz. either by imprisonment or other penalty to procure persons to be suspected to have any part of the money goods chattels or debts of the said offendors or to be indebted to them to come before the Commissioners or to be examined by them c. and then enacts That if any person or persons being known supposed or suspected to have or detain any part of the lands tenements or hereditaments goods chattels or debts of the said Bankrupt or to be indebted to or for the benefit of the said Bankrupt shall after lawful warning to the said person or persons given to come before the said Commissioners or the greater part of them to be examined refuse to come or shall not come before the said Commissioners at the time appointed having no lawful impediment such as shall be allowed by the said Commissioners or the greater part of them or that any such person or persons having knowledge or warning of any other assembly or meeting of the said Commissioners shall not come and appear before them at such time as he or she may lawfully come having no such lawful impediment as shall be then made known to the said Commissioners and by them admitted and allowed Refusing to be sworn and answer as aforesaid Or being come before them shall refuse to be sworn and to make answer to such interrogatories as shall be ministred to him or them according to the true intent and meaning of the said Statute of 13 Eliz. or of this Act That then it shall be lawful for the said Commissioners or the greater part of them to commit to such ward or prisons as to them or the greater part of them shall be thought meet all such Their punishment person and persons as so refuse to be sworn and make answer to such Interrogatories as shall be so administred as aforesaid 1 Jac. 15. 80. And also to direct their warrants to such person or persons as to them or the greater part of them shall be thought meet to apprehend and arrest such person and persons as shall refuse to appear before them as aforesaid and to bring him her or them before the said Commissioners or the greater part of them to be examined as aforesaid and upon their refusal to commit them to such Prisons as the Commissioners shall think meet there to remain without Bail or Mainprise until their submission to the Commissioners to be examined c. 2 Jac. cap. 15. 81. But by 13 Eliz. cap. 7. in case any such person or persons upon examination do not discover the truth touching the said things whereof they are examined by the Commissioners as aforesaid or do deny to swear he is to forfeit double the value of the thing concealed vid. apres forfeiture which doubtless is not taken away by 1 Jac. cap. 15. but the imprisonment is thereby added as a further penalty and to force the parties suspected to have any of the Bankrupts Estate to come before the Commissioners and make a discovery Also it may be observed that the Statute of 13 Eliz. mentioneth only the concealing of the personal Estate but 1 Jac. cap. 15. Extends to Lands Tenements c. as before that are so with-held or conceal'd 82. Thirdly For their Perjury Their Perjury 1 Jac. cap. 15. If any person or persons other than the Bankrupt either by subornation unlawful procurement sinister perswasion or means of any others or by his own act consent or agreement shall wilfully and corruptly commit any manner of wilful Perjury by his deposition to be taken before the said Commissioners or the greater part of them as aforesaid That then the party or parties so offending and all and every person and persons that shall unlawfully and corruptly procure any such unlawful wilful and corrupt Perjury shall or may therefore be indicted in any of the Kings Majesties Courts of Record and after his or their conviction thereof shall inour such forfeiture and receive and suffer such pains and punishment as are limited by the Statute made concerning Perjury viz. 5 El. cap. 9. Now the punishment appointed for Perjury by that Statute is That the person committing Perjury shall forfeit 20 l. and endure half a years imprisonment without Bail or Mainprise and his Oath never after to be received c. And if he hath no Goods or Lands of that value then he is to be set in the Pillory in some Market-Town and to have both his ears nailed and to be disabled to be a Witness in any Court of Record vid. 5 Eliz. cap. 9. and by the same Stat. of 5 Eliz. the Procurers of Perjury are to forfeit 40 l. and if they have no Estate of that value then to suffer half a years imprisonment without Bail or Mainprise and to stand in the Pillory by the space of an hour and in some Market-Town next adjoyning to the place where the offence was done and never after to be admitted to be a Witness in any Court of Record 83. Fourthly Concealing of the Concealing the Bankrupts Estate Bankrupts Estate Any person being known or suspected to have any Goods Chattels c. of the Bankrupts or to be indebted to him if he doth not upon examination disclose and plainly declare his knowledge concerning the Premises or doth deny to swear Then every such person upon due proof thereof before the Commissioners by Witness Examination or otherwise as they shall think fit shall lose and forfeit double the value of such Goods Chattels Debts c. by them or any of them so concealed 13 Eliz. cap. 7. 84. Fraud If any person or persons Fraud do fraudulently by covin or collusion claim demand recover possess or detain
any Debts Duties Goods Chattels Lands or Tenements by writing trust or otherwise which were or shall be due belonging or appertaining to any such offendor or offendors other than such as he or they can and do prove to be due by right and conscience for money paid wares delivered or other just consideration or cause reasonable to the just value thereof before the said Commissioners so to be appointed or the more part of them as is aforesaid and the same to proceed bona fide without fraud or covin That then every such person or persons so craftily demanding having or detaining any such debt duty or other thing as is aforesaid shall forfeit and lose double as much as he or they shall so claim demand detain or possess 13 Eliz. cap. 7. 85. The said Forfeitures of double Forfeitures how imployed the value in both the cases before mentioned are to be levied and imployed by the Commissioners as followeth viz. The said Commissioners or the more part of them is to levy the same of the Lands Tenements Hereditaments Goods and Chattels of the persons offending by such ways and means and in such manner and form as is before limited and appointed for the principal offendor or offendors debtor or debtors and the same forfeiture or forfeitures to be distributed and imployed to and for the satisfaction and payment of the debts of the said Creditor or Creditors in such manner rate and form as is by Vid. Post the Statute declared concerning the ordering of the Lands and Tenements Offices Fees Goods and Chattels of such offendor or offendors debtor or debtors 13 Eliz cap. 7. 86. Over-plus And if it shall fortune Overplus the Creditors of any such Bankrupt to be satisfied and payed off their debts and duties of or with the proper Lands Tenements Goods Chattels and Debts of the said Bankrupts or of oâ— with the same and some part of the forfeitures of the said double values to be forfeited as aforesaid and that there shall remain an over-plus of the said forfeitures of the double values That then one moyetie thereof shall be by the said Commissioners within convenient time after the levying thereof paid unto the Queens Majesty her Heirs and Successors and the other moyetie shall be by the said Commissioners imployed and distributed to and amongst the Poor within the Hospitals in every City Town or Country where any such Bankrupt shall happen to be 13 Eliz. cap. 7. But the forfeitures by 1 Jac. cap. 15. being for Perjury and suborning of Perjury is by the said Act to be sued for and recovered by the Creditors only or any of them that will sue for the same by action of Debt Bill Plaint or Information in any of the Kings Courts of Record and the sum and sums of money so recoverâ—d the charges of suit being deducted shall be distributed and divided towards the payment of the said Creditors of the said Bankrupt 1 Jac. cap. 15. 87. The allowance to Witnesses Allowance to Witnesses Provided always That such Witnesses as shall be sent for by the Commissioners shall have such Costs and Charges as the Commissioners in their discretion shall think fit The same charges to be rateably born by the Creditors of the said Bankrupt according to the proportion of each of their several Debts 1 Jac. cap. 15. The next thing to be considered is the manner of the ordering and disposal of the Bankrupts Estate by the Commissioners 88. First in General The Commissioners In General may according to their discretion order the estate of the Bankrupt for the Creditors satisfaction 13 Eliz. In Particular cap. 7. Secondly more Particularly First by views and appraisement The Commissioners may cause the Bankrupts Lands Tenements Fees Annuities Offices Goods Chattels Wares Merchandises and Debts to be searched View appraisement viewed rented and appraised to the best value they may 13 Eliz. cap. 7. 89. Secondly by Sale 1. To whom Sale may they sell The Statute of 13 Eliz. cap. 7. is that the Commissioners may sell without mentioning to whom and by 21 Jac. 19. which giveth power to the Commissioners to sell entailed lands it is to any person or persons which surely is intended to persons capable and not to aliens although they be Creditors 90. Thirdly Of what Of all of what Lands Tenements Hereditaments and Deeds Evidences and Writings touching the same and of all Fees Offices Goods and Chattels of â—he offendor as is before set down 91. Fourthly in what Manner How as to the Lands Tenements Goods and Chattels in general of the Bankrupts the sale is to be by Deed Indented and enrolled in any of his Majesties Courts of Record or otherwise to be ordered by the Commissioners for satisfaction of the Creditors 13 Eliz. cap. 7. And therefore although the sale be not by Deed inrolled accoâ—ding to the words of the Act yet it is good enough Cooke lib. 2. 25. 26. case of Bankrupts A Rent Seck whereof there is no seisin shall be sold and the sale is good without Attornement Stones Lecturâ— 174. quere 92. As to lands intail'd of the Bankrupt Intail'd Landâ— the Commissioners or the greater number of them are impowred by 21 Jaâ— cap. 19. by Deed Indented and Inolled within six months after the making thereof in some of his Majesties Courts of Record at Westminster to grant bar gain sell and convey any Manors Lands Tenements or Hereditaments whereof any Bankrupt is or shall be any ways seized of any estate in Tail in Possession Reversion or Remainder and whereof no Reversion or Remainder is or shall be in the Kings Majestie his Heirs or Successors of the gift or provision of his Majesty his progenitors his Heirs or Successors to any person or persons for the relief and benefit of the Creditors 21 Jac. cap. 19. vide before Sect. 53. 93. As to Copy-hold or customary Copy-hold Lands they are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record c. as other the Lands and Estate of the Bankrupt are appointed to be by 13 Eliz. cap. 7. But by the same Statute it is provided That all and every person or persons to whom any such sale of Copy-hold or customary Lands or Tenements shall be made shall before such time as they or any of them shall enter or take any profits of the same Lands or Tenements agree c compound with the Lords of the Mannors of whom the same shall be holden for such Fines or Incomes as heretofore have been most usually and accustomed to be yielded or paid therefore And upon every such agreement or composition the said Lords for the time being at the next Court to be holden at or for the said mannors shall not only grant unto the said Vendee or Vendees upon request the same Copy or Customary Lands or Tenements by Copy of Court-Roll of the said Manors for such estate or Interest as
months after the commission sued forth by 1 Jac. cap. 15. The words are And that it shall and may be lawful for any of the Creditors of the said Bankrupt within four months after any such Commission shall be sued forth and until distribution shall be made by the said Commissioners for the payment of the Bankrupts debts as in such case hath been used to partake and joyn with the other Creditors that shall sue forth any such Commission for satisfaction or payment of his her or their debts to him or them owing without any let hindrance or disturbance of any of the same Commissioners or of any of the other Creditors of the said Bankrupts the same Creditors so coming in to contribute to the charge of the said Commission and that if the Creditors come not in within four months then the Commissioners to have power to distribute 1 Jac. chap. 15. 106. In a Case of one Ruggles of Suffolk upon view of the Statutes of 13 El. c. 7. 1 Jac. c. 15. of Bankrupts it was resolved by the Court that if certain Creditors sue a Commission and others within four months after or more being Creditors come before distribution and will joyn in the charge of the Commission and all that belongs to it and tender their parts thereof that they shall not be refused but shall have their equal parts as Creditors but if any distribution be made of any part of the estate no Creditors are to be admitted after that came not in before Hobart 287. Ruggles Case 107. A Commission was sued out by some of the Creditors of the Bankrupt and they pursued it and the Lands were sold after other Creditors prayed to be joyned with them Resolved in this case First That the Commissioners may sell and prepare for distribution presently upon the execution of the Commission but untill the four months past they may not proceed to distribution Secondly That in this case the offer of the Creditors to be joyned was not an effectual offer without offering to be contributory to the charge but to offer any particular sum is not necessary and these words for the charge of the Commission are to be extended to all charges arising in suing forth of the Commission and in execution and defence thereof Thirdly Resolved That at any time before distribution the Creditors may come pray to be joyned but after the four months past and distribution made they come too late for so the distribution may be made void ' Hutton 37 38. Ruggles case Hughes Abridgments 316. Case 2. 108. Next observe the time of Time of distribution satisfaction or distribution it seems it must not be untill four months after the Commission sued forth for so much time is given to other Creditors to come in and joyn in the Commission and if the Creditors come not in within that time the Commissioners may distribute 1 Jac. chap. 15. 109. The manner of the distribution No respect is to be had to the nature Manner of distribution of the security for by 13 El. 7. the Commissioners are to sell or otherwise to order the Bankrupts estate for true satisfaction and payment of the Creditors rate and rate like according to the Quantity of his or their debts 23 El. chap. 7. A debt due to the Bankrupt by Bond cannot be assigned to two of his Creditors joyntly but part to one and part to another and by vertue of the Statutes they may sue severally c. Godbolts Reports 195. 110. The Commissioners ought to make a several distribution to the Creditors and not a joynt-sale for the Act saith †13 â—â— 7. it must be to every one rate and rate-like but where a debt is joyntly due there the Commissioners may satisfie the same by a joynt sale to them Cook lib. 2. 26. b. Case of Bankrupts 111. All and every Creditor and Creditors having security for his or their several debts by Judgment Statute Recognizance specialty with penalty or without penalty or other security or having no security or having made attachment in London or any other place by vertue of any custom there used of the goods and chattels of any such Bankrupt whereof there is no execution or extent served and executed upon any the Lands Tenements Hereditaments Goods Chattels and other estate of such Bankrupt before such time as he or she shall or do become Bankrupt shall not be relieved upon any such Judgment Statute Recognizance Specialty Attachments or other security for any more than a â—â—ateable part of their just and due debts with the other Creditors of the said Bankrupts without respect to any such penalty or greater sum contained in any Judgment Statute Recognizance Specialty c. or other security 21 Jac. chap. 19. I suppose security by Mortgage of Lands cannot be within this Statute for there is particular provision for the same in the same Statute 21 Jac. 19. nor are lands extended as it seems within the said clause by reason of the words before whereof there is no execution or extent served or executed The next thing considerable is the effect of the distribution made by the Commissioners as aforesaid 112. First in general as to Lands Tenements Hereditaments goods chattels and other estate of the Bankrupt by 13 Eliz. chap. 7. It is enacted That every direction order bargain sale and things done by the said persons so authorized viz the Commissioners or greater number of them shall be good and effectual in the Law to all intents constructions and purposes against the said offender or offenders debtor or debtors his or their wife or wives heir and heirs child and children and such person and persons as by joynt purchase with the said offender or offenders shall have any estate or interest in the premises and against all other person and persons claiming by from or under such offender or offenders debtor or debtors by any Act or Acts had made or done after any such person shall become Bankrupt as aforesaid and also against the Lords of the Mannors c. vide after for Copy-holds 13 Eliz. chap. 7. But not to bar any purchaser upon valuable consideration unless the Commission be sued forth within five years after the party becomes a Bankrupt by 21 Jac. chap. 19. 113. Secondly As to Lands intailed Lands intayled of the Bankrupts the Statute gives power to the Commissioners to grant bargain and sell by deed inrolled Lands c. intailed of the Bankrupts vide devant Sect. 53. and then adds that all and every such grants bargains sales and conveyances shall be good and available in the Law to such person or persons and their heirs against the said Bankrupts and against all and every the issue of the bodies of such Bankrupts and against all and every person or persons claiming any estate right title or interest by from or under the said Bankrupts after such time as such person shall become Bankrupt and against all and
every such person or persons whatsoever whom the said Bankrupt by common Recovery or other way or means might cut off or debar from any remainder reversion rent profit title or possibility into or out of any of the said Mannors Lands Tenements or hereditaments 21 Jac. chap. 19. 114. Thirdly as to the Copy holds Copy-hold the sale and dispositon of them shall be good against the Bankrupts to all intents and purposes and against his or their wife or wives heir and heirs in like manner as before for his other estate Sect. 45. for there is no distinct clause for the Copy-holds viz. And also against the Lords of the Mannors whereof the said Customary or Copy-hold Lands been holden their Heirs Successors and Assigns and every of them and there is a Proviso added That the Vendees of such Copy-holds shall compound for their Fines with the Lords before entry vide Sect. 93. before 115. The sale of the Commissioners doth vest the Copy-hold estate so in the Vendee before admittance that the said Bankrupt cannot be said to be Tenant and therefore if he dle before admittance his wise shall not have any Customary estate which by the custom she ought to have when her husband dies Tenant the Vendee is only excluded by the Statute from entry or taking of the profits before composition made with the Lord which is only for the Lords benefit and not the Copy-holders also it was held that after composition for the time and the admittance of the Vendee it shall relate to devest all Customary estates happening since the sale and before the said composition and admittance Crook part 3. 568 569. Parker vers Edith Bleek 116. If two Joynt-tenants be of Copy-hold â—ands in Fee and the one out of Court according to the custom surrender his part to the Lords hands according to the custom to the use of his last will and by his will deviseth a part to a stranger in fee and dieth and at the next Court the surrender is presented by the surrender and presentment the Joynture was severed and the Devisee ought to be admitted to the moiety of the Lands for now by relation the state of the Land was bound by the surrender Cook sur Litt. 596. 117. As to the debts due to the Debts due to the Bankrupt Bankrupt The Commissioners have power to grant assign or otherwise to order and dispose all or any debts due or to be due to or for the benefit of the Bankrupt by any person or persons whatsoever or in what form soever to the use of the Bankrupts Creditors according to 13 Eliz. chap. 7. And that the same grant assignment or disposition of the said debts shall so vest the property right and interest of the said debt and debts in the person or persons to whom the same shall be so granted assigned c. as fully to all intents and purposes as if the Bonds Bills Statutes Judgments or contracts whereupon such debt or debts did arise or grow had been made to or with the person or persons to whom the same shall be so assigned And that after such grant assignment or disposition made of the said debts neither the Bankrupt nor any other to whom any such debt shall be due shall have power to recover the same nor to make any release or discharge thereof neither shall the same be attached as the debt of the Bankrupt or such said other person or persons to whom the same shall be due by any other person or persons according to the custom of the City of London or otherwise But that the party or parties to whom the said debt shall be assigned shall have like remedy to recover the same as fully and lawfully in the name or names of the person or persons to whom the same shall be so granted assigned or ordered by the said Commissioners in all respects and purposes as the party himself might have had 1 Jac. chap. 15. Provided always that no debtor of the Bankrupt be hereby indangered for the payment of his or their Debt truly and bona fide to any such Bankrupt before such time as he shall understand or know that he is become a Bankrupt 1 Jac. chap. 15. 118. To give means of Recovery As to the debts of the Bankrupt assigned by the Commissioners the assignee shall have the like remedy to recover the same as fully and lawfully as the party himself 1 Jac. chap. 15. 119. The Assignees of the said debts may sue for them in their own names because they are debts transferred by Parliament but yet notwithstanding in case the action of debt arise upon a Contract the Defendant may wage his Law for although the Parliament transferred the debt yet it is no debt upon Record Croke part 2. 105. Bradshaws Case A debt due by bond assigned to two Creditors severally they may sue severally for it Godbolts Reports fol. 195. 120. As to Lands c. of the Lands extended Bankrupt extended by any pretended debt or accomptant to the King after such time as the Bankrupt becomes a Bankrupt such person or persons to whom the Commissioners or major part shall bargain sell grant or assign the said Lands c. shall have good remedy to demand and recover the same against such persons as detain the same 21 Jac. chap. 19. 121. As to Lands Tenements c. of the Bankrupts conveyed away upon condition the Commissioners have power to appoint one or more to perform the condition vide devant Sect. 51. Creditor barren 122. Another effect of the Commissioners distribution is to bar the Creditor if any Creditor of the Bankrupts shall not be fully satisfied or otherwise contented by such means as the Statute appointeth they may have their remedy against the Bankrupt as before they had for the remainder and shall be only barred for so much as they are satisfied or contented for and no more 13 El. cap. 7. 123. Lastly to restore the capacity Capacity of Bankrupts of the Bankrupt The Bankrupt to have the overplus of his estate if any be after that the Creditors are satisfied And that the said Bankrupts after the full satisfaction of the said Creditors shall have power and authority to recover receive the residue and remainder of the Debts to them owing 1 Jac. chap. 15. 124. Next observe the accompt of Recompt the Commissioners to the Bankrupt such of the said Commissioners as shall put the said Commission in execution shall upon lawful request to them made by the Bankrupt not only make a true declaration to the said Bankrupts of imploying and bestowing of their said Lands Tenements offices Fees goods chattels and debts so payed and satisfied to their said Creditors but also make payment of the overplus of the same if any such be to the said Bankrupts their executors administrators or assigns 13 Eliz. chap. 7. 125. Remedy for the Commissioners in any action brought against them for acting by
Conveyances By Way of APPENDIX By The Same Author The Resolutions of the Judges c. 1. THe Statute of 13 El. cap. 5. is Fraudulent Conveyances 13 El. Chap. 5. made perpetual by 25 El. cap. 5. The words are For the avoiding and abolishing of feigned Conveyances covenous and fraudulent Feoffments Gifts Grants and Alienations Conveyances Bonds Suits Judgments and Executions as well of Lands and Tenements as of Goods and Chattels which have been and are contrived or devised of malice fraud coven collusion or guile to the end to delay hinder or defraud Creditors and others of their just and lawful Actions Suits Debts Accompts Demages Penalties Forfeitures Herriots Mortuaries and Reliefs not only to the let or hindrance of the due course and execution of Law and Justice but also to the overthrow of all true and plain dealing between man and man c. 2. Be it therefore declared ordained and enacted that all and every Feoffment Gift Grant Alienation Bargain and Conveyance of Lands Tenements Hereditaments Goods and Chattels or any of them or any Lease Rent Commons or other profit or charge out of the same or any of them by writing or otherwise and all and every Bond Suit Judgment and Execution at any time had or made since the beginning of the said Queens Reign or at any time hereafter to be had or made to or for any intent or purpose before declared and expressed shall be from henceforth deemed and taken only against the persons their Heirs Successors Executors Administrators and Assigns whose Actions Suits Accompts Damages c. by such Practises may or shall be in any ways disturbed to be clearly and utterly void Any pretence colour feigned consideration expression or use other matter or thing to the contrary notwithstanding 3. And be it further enacted That all and every the parties to such feigned covenous or fraudulent Feoffment Gift Grant Alienation Bargain Conveyance Bonds Suits c. and other things before expressed and being privy and knowing of the same or any of them which at any time after the 10th day of June next coming shall wittingly and willingly put in ure avow maintain justifie or defend the same or any of them as true simple and done or made bona fide and upon good consideration or shall alien or assign any of the Lands Tenements Goods Leases or other things before mentioned to him or them conveyed as aforesaid or any part thereof shall incur the penalty and forfeiture of one years value of the said Lands Tenements Hereditaments Leases Rents Commons or other profits out of the same and the whole value of the said Goods and Chattels and so much money as shall be contained in any such covenous and feigned Bond The one moiety thereof to the Queens Majesty the other to the party grieved by such feigned and fraudulent Gift Grant c. to be recovered in any of the Queens Courts of Record by Debt Bill Plaint or Information wherein no essoin protection or wager of Law shall be admitted for the Defendant or Defendants And he also being lawfully convicted shall suffer imprisonment for half a year without Bail or main prise 4. Provisoes First that the Statute What the Statute extends not to shall not extend to common Recoveries c. Secondly nor to any person or persons that shall use any voucher in Formedon Thirdly Nor to any Conveyances made upon good consideration and bonafide to any person or persons corporation c. without covin c. 5. Between Pauncefoot and Blunt Gift made by a Papist in the Chequer Chamber the case was Pauncefoot being a Papist was indicted for his Recusancie and he made a gift of all his Leases and Goods upon colourable consideration and fled beyond Sea and was after outlawed upon the said Indictment and some thought that by the Common Law the said gift was void in regard it was in prejudice of the Queen but all agreed that the said Statute of 13 Eliz. extends to it for it extends not only to Creditors but to all such as have any cause of action or suit or any penalty or forfeiture And it was also resolved that this word Forfeiture shall be intended not only of a forfeiture upon an Obligation Recognizance c. but to every thing lawfully forfeited to the King or a Subject and therefore Feloâ— if a man to prevent a forfeiture by felony or outlawry makes a gift of all his Goods and after is attained or outlawed these Goods are forfeited notwithstanding the Gift Cook lib. 3. 82. Per Heir of Debtor 6. It was held that the Statute of 13 Eliz. cap. 5. extends to a fraudulent conveyance made by the Heir of the Debtor of lands descended to him from his deceased Ancestor as well as by the Debtor himself for in such case the Heir is Debtor and the Writ against him is in the debet and detinet whereas against an Executor it is in the detinet only Croke part 1. 350. p. 1. 7. It was found by a special Verdict Gift upon Condition That a Testator was seized of divers Goods to the value of 250l and by covin to defraud his Creditors he made a gift of the said Goods to his Daughters with a condition that upon payment of 20 s. it should be void and dyed this was held to be a fraudulent gift by 13 Eliz. cap. 5. and that notwithstanding it the Goods continued Assets Croke part 1. 810. p. 16. Bethel and dw Stanbope 8. An Executrix makes a fraudulent Gift by Executrix who continues possession gift of the goods of the Testator and inter-marrieth and her husband taketh upon him payment of Debts c. The Goods being still in their possession were held to be still Assets Croke part 1. 406. p. 16. Wilcotts vers Watson 9. A man maketh a Lease for 80 Consideration years of Lands without any consideration and he after setleth a Joynture upon his Wife of the same Lands she could not avoid that Lease because the Conveyance to her was likewise voluntary and without any valuable consideration Croke part 1. 445. p. 8. Vpton and Bassett 10. Pierce was in debt to Twine Gift pending a writ 400 l. and to C. 200 l. C. brought Debt against Pieâ—ce and pending the Writ Pierce being possess'd of goods to the value of 300 l. in secret makes a general gift of all his Goods and Chattels real and personal whatsoever to Twine in satisfaction of his debt and yet notwithstanding Pierce continueth in possession and some of them he sold and he marked the sheep with his own mark And after C. had a Judgment against Pierce and a Fieri Facias to the Sheriff who coming to make execution by force of the Writ divers persons by Twines Command resisted the Sheriff claiming the goods as Twines by force of the said gift and this was resolved to be a fraudulent gift and that in the said case there were Marks of Fraud these several marks of fraud First the gift
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
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
sold or any other just or lawful cause and by 1 Jac. chap. 15. It is Or shall willingly suffer him or her self â—â— be arrested for any Debt c. ut supraâ— and then adds or shall willingly or fraudulently procure himself or her self to be arrested or his or her goods money and chattels to be attaqued or sequestred c. 17. A Merchant c. hath an impropriat Rectory the Quire is not repaired the Tithes are sequestred it is 〈…〉 sequestration within the said Statute foâ— this is not his immediate procuring aâ—though his default in not repairing thâ— Church might be a mean to procure iâ— Stones Lecture 172. 18. Fifthly by suffering hims 〈…〉 or her self to be outlawed c. 13 â—â— cap. 7. 1 Jac. cap. 15. Quere if the pâ—â—ty reverse the outlawry before the Commission of Bankrupt sued forth whether his being out-lawed be within thâ— Statute and I conceive with submission it is not within the Statute for 〈…〉 suppose the reason of this Clause may be because the party by the out-lawry intitleth the King to his goods c. sâ— that his end in so doing may be conjectured to deceive his Creditors which cannot be intended when he after reverseth it By Stone one out-lawed in Ireland it is not thereby a Bankrupt here because the Record is not pleadable here fol. 172. 19. Sixthly Yielding himself or her self to prison 13 El. cap. 7. 1 Jac. cap. 15. This I conceive is to be intended a voluntary yielding and not when a man is imprisoned for non-payment of a Fine c. or any refractory carriage for although the Act which causeth the imprisonment be voluntary yet the imprisonment it self is involuntary but Quere whether it be not a detention for Debt within the following clause mentioned hereafter in the next Section for I suppose the Fine after it is once imposed becomes a Debt but yet it may not be within the meaning of the Acts which were made for the relief of Creditors only who had intrusted the party offending and not for a Fine judicially imposed for some contempt 20. Seventhly 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 arrest or detention c. 1 Jac. cap. 15. and in 21 Jac. cap. 19. It is thus Or being arrested for Debt shall after his or her arrest lâ— in prison two months or more upon thaâ— or any other arrest or detention in prison for Debt 21 Jac. cap. 19. Suppose hâ— be arrested upon a Bond before the day of payment for by the custom of London a Creditor may arrest a Debtor there before the day of payment to find sureties Cook lib. 8. 126. a. City of Londonâ— case and lie in prison two months c. I conceive this case to be within the Statutes for the Debt ariseth upon the obligation and is a Debt presently upoâ— sealing and delivery of the Deed and I conceive the action for which he is arrested must be an action of Debt although the end of that arrest is not to inforce the payment of the Debt but tâ— find sureties in case the Creditor feaâ—â— the Debtor to be too weak for his ingagement and in case the Debtor upon such arrest finds not sureties his body is to continue in prison as a pledge for thâ— Debt like Law I conceive in case of a single Bill or a Debt arising upon a contract for it is a Debt presently and before the day of payment Vide Crook part 2. fol. 300. Tynam vers Bridges 21. Eightly Or being indebted to any person or persons in the sum of 100. lib. 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 within six months after an original Writ sued out to record the said Debt and notice thereof given unto him or left in writing at his or their dwelling house or last placâ—â—f abode 21 Jac. cap. 19. 22. Ninthly Or being arrested for the sum of 100 lib. or more of just debt or debts shall at any time after such arrest escape out of prison or procure his enlargement by common or hired bail And in the said cases of arrest †Mentioned in 21 Jac. cap. 19. or lying in prison for such Debt or Debts or getting forth by common or hired bail he shall be judged a Bankrupt from the time of his first arrest 21 Jac. cap. 19. 23. Tenthly or shall either by himself or others by his procurement obtain any protection or protections other than such person or persons shall be lawfully protected by the priviledg of Parliament 21 Jac. chap. 19. 24. Eleventhly or shall prefer or exhibit unto his Majesty his heirs or Successors or unto any of the Kings Courts any Petition or Petitions Bill oâ— Bills against his or her Creditor or Creditors or any of them thereby desiring or endeavouring to compel or inforce them or any of them to accept of leâ—â—than their principal and just Debts or tâ— procure time or longer days of payment than was given at the time of their original contracts 21 Jac. cap. 19. 25. Twelfthly or shall make 〈…〉 cause to be made any fraudulent graâ—â— or conveyance of his her or their Lands Tenements Goods or Chattels to thâ— intent or whereby his her or their Creditors being subjects born * Vid sect 4 Where it appears that strangers are also included shall 〈…〉 may be defeated or delayed for the recovery of their just and true debts â— it is in 1 Jac. cap. 15. 26. In all which cases before recited the Person offending is declared to be a Bankrupt within the said Statutes And the end or final cause of all such his demeanor is express'd by 13 El. cap. 7. to be to defraud the Creditors of their just Debts c. and by 1 Jac. cap. 15. it is thus To the intent that his her or their Creditors being subjects born shall or may be defeated or delayed from the recovery of their just and true Debts ibid. And by 21 Jac. cap. 19. All the said Statutes shall extend as well to Aliens and Denizens as to Subjects born The punishment and proceedings against Bankrupts by 34 H. 8. Cap. 4. 27. Nota By 21 Jac. cap. 19. it is enacted that all Statutes and Laws formerly made against Bankrupts and for relief of Creditors shall be in all things largely and beneficially construed for relief of the Creditors 28. First in General He shall be In General accompted a Bankrupt to all intents and purposes 13 Eliz. cap. 7. 21 Jac. cap. 19. 1 Jac. cap. 15. and being a Bankrupt he is presently disabled as to the disposal of any part of his Estate although it be to some of his Creditors for he is utterly discredited by his becoming a Bankrupt
the Law will not trust him with the distribution of his Goods vide Coke lib. 2. 26. a. Case of Bankrupts 29. Secondly more Particularly In particular the Bankrupts are to be proceeded against by Persons immediately authorized by Act of Parliament or mediately Touching the Bankrupts Person the persons immediately authorized are set forth by 34 H. 8. cap. 4. to be the Lord Chancellor or Lord Keeper for 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
notwithstanding by the Statute of limitations And it may be answered that he shall be barred for neither of the Statutes gives the Assignee any larger power c. than the original debtor had also the Statute of limitation was made for quieting of mens estates and avoiding of Suits which Statute shall not be taken away without special words 71. Such things as the Bankrupt Thin disposed of by the Bankrupt himself disposed to the satisfaction of some of the Creditors after that he became a Bankrupt for the Statute of 13 Eliz. chap. 7. is That the Commissioners must distribute to the Creditors share and share alike c. and that every such bargain sale c. shall be good and effectual against the offendors and all persons c. And if the debtor after that he becomes a Bankrupt may prefer one Creditor before another it would be unreasonable and a great defect in Law that after he hath utterly discredited himself by becoming a Bankrupt the Law should intrust him with the distribution of his Goods Cook lib. 2. 25. b. 26. a. Case of Bankrupts Now observe the means of discovery and obtaining of the Bankrupts Estate 72. It is enacted by 21 Jac. chap. 19. that the Commissioners in execution Break open Houses of their Commission or the greater part of them or any other person or persons officer or officers by them or the greater part of them to be deputed or appointed by their warrant or warrants under their hands and seals may break open the house or houses chambers shops ware-houses doors trunks or chests of the Bankrupt where the said Bankrupt or any of his goods or estate shall be or reputed to be and seize upon and order the Body goods chattels ready money and other estate of such Bankrupt as by former Laws are limited and appointed c. 21 Jac. cap. 19. 73. Next by examination and punishment Examination of persons by the Commissioners of persons 1. The Bankrupt himself they may compel him to come before them vide before Sect. 39. They have power to examine him upon oath upon such interrogatories touching his Lands Tenements goods chattels debts bills bonds books of accompt and such other things as may tend to disclose his or their estate or the secret grants conveyances and â—loyning of his her or their Lands Tenements goods money and debts as they shall think fit 1 Jac. chap. 15. 74. Then observe the Bankrupts punishment in case of his refractoriness or deceit first for his not appearance before the Commissioners vide before Sect. 39. Secondly in case he refuse to be examined or answer not fully to every interrogatory to him to be administred by the said Commissioners or the greater part of them it shall be lawful for the said Commissioners or the greater part of them to commit the said offendor or offendors to some streight or close imprisonment there to remain until he she or they shall better conform him or her self 1 Jac. chap. 15. 75. Thirdly For his perjury If Bankrupts perjury upon his her or their examination it shall appear that he or she or they have committed any wilful or corrupt perjury tending to the hurt or damage of thâ— Creditors of the said Bankrupt to the value of 10 lib. of lawful money of Enggland or above the party so offending shall or may be thereof indicted in any of the Kings Majesties Courts of Record and being lawfully convicted thereof shall stand upon the Pillory in some publick place by the space of two hours and have one of his Ears nailed to the Pillory and cut off 1 Jac. cap. 15. 76. Fourthly For the Bankrupts His fraud fraud And if any Bankrupt shall upon his or her examination to be taken before the said Commissioners executing the said Commission be found fraudulently or deceitfully to have conveyed away his or her goods chattels lands tenements offices c. or other estate or any part thereof to the value of 20 lib. or above to the end and purpose to hinder the execution of this Statute or of any other the aforesaid Statutes or thereby to defraud or delay or hinder his or her Creditors of the same and shall not upon his or her examination discover unto the said Commissioners and if it lie in his or her power deliver unto the said Commissioners all that estate goods and chattels so fraudulently and deceitfully conveyed away as aforesaid or by him or her his or her means kept or detained from the said Commissioners or that cannot make it appear unto the said Commissioners that he or she hath sustained some casual loss whereby he or she is disabled to pay what he or she then owed the offendor shall or may be indicted for such fraud or abuse at the Assizes or general Sessions to be holden before the Judges of Assize or Justices of Peace of the County or place where he or she shall become Bankrupt and if upon such Indictment or Indictments the Bankrupts be thereof convicted he or she so convicted shall be set in the Pillory in some publick place for the space of two hours and have one of his or her ears nayled to the Pillory and cut off 21 Jac. cap. 19. 77. Secondly By examination of Wife of the Bankrupt the Bankrupts wife After such time as any person shall by the said Commissioners executing the said Commission or the greater part of them be lawfully adjudged or declared to be a Bankrupt the said Commissioners executing such Commission shall have power and authority upon oath to examine the wife and wives of all and every such Bankrupts for the finding out and discovery of the estate and estates goods and chattels of such Bankrupt or Bankrupts concealed kept or disposed of by such wife or wives in their own persons or by their own act or means or by any other person or persons And that she and they the said wife and wives shall incur such danger and penalty for not coming before the said Commissioners or for refusing to be sworn or examined or for not disclosing of the truth upon her or their examination or examinations as in and by the former Laws or either of them is already made and provided against any other person or persons in like cases 21 Jac. chap. 19. 78. Thirdly By examination of Other persons other persons Any person known or suspected to have any of the Bankrupts estate debts c. Wherein note First the power of the Commissioners to bring them before them the Commissioners upon complaint made to them by any party grieved knowing supposing or suspecting any of the goods chattels wares Merchandizes or debts of such offendor or offendors to be in custody use occupying keeping or possession of any person or persons or any person or persons to be indebted to any such offendor or offendors and do make relation thereof to the said Commissioners so to be appointed or the more part of them That