Deed inrolled to the Queen In this case the purchaser shall enjoy the Land against the Queen by the Statute of 27 Eliz. for that Act being general and made in suppression of fraud shall bind the Queen Cook lib. 11. 74. a. Magdalen Colledg Case 7. A man conveyed his Lands to Future power of Revocation the use of himself for life and after to the use of divers others of his blood with a future power of Revocation viz. after such a Feast or after the death of such an one c. and before the power of Revocation commenceth he for valuable consideration doth bargain and sell the same lands to another and his heirs this bargain and sale is within the remedy of 27. Eliz. cap. 4. for although the Statute saith the first conveyance not by him revoked which seems by the literal sence to be intended of a present power of Revocation for no revocation can be made by force of a future power before it comes in esse yet it was held that the intent of the Act was that such voluntary Conveyance that was originally subject to a power of Revocation be it in present or in future shall not stand against a purchaser who cometh in upon good and valuable consideration and bona fide Cook lib. 3. 82. Twines Case 8. Resolved That if a man hath Power of Revocation extinguished power of Revocation and after to the intent to defraud a purchaser he levy a Fine or make a Feoffment or other conveyance to a stranger whereby he extinguisheth this power and after he bargain and sell the lands to another for valuable consideration the Bargainee shall enjoy the Land for as to him the Fine Feoffment or other conveyance by which the condition was extinct was void by the said Act of 27 Eliz. And it was said that the said Act made voluntary Conveyances with power of Revocation in an equal degree as to purchasers with conveyances made to defraud purchasers Cook lib. 3. 82. b. Twines Case 9. If a man make a Lease for Consideration years by covin and fraud and after make another Lease bona fide without Fine paid or rent reserved the second Lease shall not a void the first for first it was agreed that by the Common Law an Estate made by fraud shall be only void against him that had a former right and not against him that had a puisne right or interest Secondly no purchaser shall avoid a precedent conveyance made by fraud or covin but he that is a purchaser for money or other valuable consideration and the words good consideration in the Act ought to be understood of valuable consideration only and not a consideration of nature or blood c. Cook lib. 3. 83. Twines Case 10 A man of little capacity and not able to govern the Lands descended to him and being disposed to riot and disorder by mediation of friends openly conveyed his lands to them upon trust and confidence that he should take the profits for his maintenance and that he should not have power to waste and consume them and after being seduced by persons he sold his Lands to them for a small sum of money And this bargain and sale although it was for money was held to be out of 27 Eliz. which Act was made against fraud and deceit and shall not aid any purchaser that cometh not to the Land for good consideration lawfully and without fraudor deceit but such a conveyance made upon trust were void as to him that purchaseth it for valuable consideration and bona fide Cook lib. 3. 83. b. Twines Case 11. If a man seized of Lands in Notice of the fraud Fee make a fraudulent Conveyance to the end to deceive and defraud a purchaser against the Statute of 27 Eliz. and continueth in possession and is reputed as owner and B. enter into communication with A. for the purchase of it and by accident B. hath notice of this fraudulent conveyance and yet notwithstanding he concludes with A. and taketh an assurance from him yet B. shall avoid this fraudulent conveyance by the said Act of 27 Eliz. notwithstanding his notice for the Act by express words makes the fraudulent conveyance void as to a Purchaser for the notice of a Purchaser cannot make that good which by Act of Parliament is void as to it Cook lib. 5. 60. 12. One after Marriage voluntarily Voluntary Conveyance assigns a Lease for years as it were in joynture for his wife and took the profits and after sold it to one who had no notice of this conveyance this was held to be within 27 Eliz. although at the first it was not made upon trust to be revoked c. because it was a voluntary conveyance at the first and shall be intended fraudulent at the beginning But if at the time of the Marriage or after by reason of a portion given by his wives friends in recompence thereof and for a Provision for maintenance of his wife he had made an assignment of such a Lease to his wives friends and had after taken the profits thereof as in reason he ought during his life and had then sold that Term yet it had not been within the said Statute Crook part 2. 158. Colvil vers Parker 13. A man Covenants for natural love c. to stand seized to the use of himself for life the remainder to his Son in Tail with a power of Revocation and a Proviso to make Leases for 21 years and after makes a Lease for 21 years for 30 lib. Fine paid Resolved That notwithstanding this voluntary and revokeable conveyance yet the Lease for years was absolutely good by 27 Eliz. and as to the Lessee the conveyance shall be construed as if it had been revoked and that the Lessor was then Tenant in Fee and it was also resolved That in case of a Lease for years made as before there had been a Rent only reserved it had been a good consideration and within the Statute and the making of such Lease was a revocation of the first Estate according to the Lease Crook part 2. 181. p. 19. Also it was resolved that the said Lease for years respect being had only to the Proviso and power thereby given was void for it being only a covenant and the consideration not extending to the Lease for years no use is raised to him thereby ibidem 14. Grandfather Father and Son the Grandfather upon the Fathers marriage makes the Wife of the Father a Joynture and at the same time covenants to demise other Tenements to the Father for 1000 years and after maketh such demise accordingly to commence after his death in which was a Proviso to make the same void upon the Fathers dying without issue or making a Lease not reserving the ancient Rent the Father after assigns the said Lease to the use of his Son an infant to the intent that it should not drown by the descent of the reversion and with the colourable purpose and intent that the infant should pay debts c. The Grandfather dies the Father enters into the Lands and taketh the Profits and makes Leases and doth other Acts as Owner and neither the Assignees nor Infant took any Profits or paid any Debts and the Assignment was made to divers persons of good reputation but the assignment it self was delivered into the hands of a person of mean quality The Father after bargains and sells the said Lands for a great sum of money by Deed inrolled By all which marks the said Lease and Assignment were taken to be fraudulent Cook lib. 6. 72. a. Burrells case 15. Resolved in the said Case That whereas the words of the said Act of 27 Eliz. are That all and every Conveyance Grant c. for the intent to defraud or deceive such persons as have purchased or shall purchase the same Lands c. shall be deemed only against such Purchaser void yet if the Father make a Lease by fraud and covin of his Lands to defraud others to whom he shall demise or sell it as all fraudulent demises shall be intended and before the Father sells or demiseth it he dieth and the Son knowing or not knowing the said Lease sell the Lands upon good consideration In this case the Vendee shall avoid the said Lease by the said Act of 27 Eliz. for the words of the Act are general and it is not needful that he who sold the Land should make the former Estate or incumbrance But if the Estate be fraudulent whosoever is the seller the Purchaser shall avoid such fraudulent Estate Also it was resolved That although the Father had nothing of Inheritance in the Land at the time of the assignment of the Lease but the inheritance was in the Grandfather yet when the Grandfather dieth and the Father sells the Land his Vendee shall avoid the said Term for if he had bargained and â—old the Term only the bargain should have avoided the fraudulent assignment and by consequence the Vendee of the whole Fee-simple shall avoid it Coâ—k lib. 6. 72. a. b. Burrells case 16. In Trespass The Plaintiff and Dâ—sendant claim by several Leases from the same man The Plaintiff in his Declaraâ—io◠〈…〉 the defendants Lease to be made by fraud but sheweth not any consideration payed by himself whereupon the Defendant Demurs Yelverton at Common Law there was not any fraud remedied to defeat an after purchase but that only which was committed to defeat a former interest which was granted and 27 El. doth not aid it for here is no consideration payed for the second Lease no more than for the first Lukener contra A thing obtained by a mans own act makes a man a purchaser within the said Statute and the fraud is confessed by the Demurrer Anderson the confession of the fraud is not material in regard the Plaintiff is not such a person as ought to have benefit thereby and within the remedy and provision of the Act and by that Act a fraudulent conveyance is not made void against all but only against such as come in upon valuable consideration Wamsey according and he said that a fraudulent gift of goods remains good against the donor but not against his Creditor by 13 Eliz. Crook part 1. 445. p. 8. Vpton vers Basset FINIS
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
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
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
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
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
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
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.
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 Copy-holders of the same Mannors have been wont to be admitted and to receive their fealty accordingly 13 Eliz. cap. 7. 94. A Copy-holder surrenders before admittance cestuy que use becomes a Bankrupt The Commissioners sell the Copy-hold whether shall the Lord have 2 Fines viz. one upon the admittance of which should have been made to cestuy que use if he had not become a Bankrupt and another upon the admittance of the person that comes in by sale of the Commissioners of Bankrupts and this is a quere in Mr. Stones Lecture fol. 137. and it is there compared to a surrender made by the Heir before admittance which is held to be good but not to prejudice the Lord of his Fine due upon the Descent Cooke lib. 4. 226. 95. If the Vendee of a Copy-hold tender to the Lord a competent Fine and the Lord refuse it The Vendee may enter Stones Lecture 176. The Commissioners may sell Copy-hold intail'd which by custome may be intail'd and cut off otherwise if there be no such custome Stones Lecture 176. I conceive if there be no such custome then it is in nature of a Fee-simple conditional at the Common Law and then if the condition be performed viz. if the Copy-holder hath issue c. the Commissioners may fell it as I suppose 96. As to a Condition Lands Goods c. of the Bankrupt made over by him upon condition or power of Redemption the Commissioners before the time of the performance of the condition may appoint under their hands and seals such as they shall think fit to perform the condition and after such performance shall dispose of such lands or goods for the Creditors advantage as fully as of any other of the Bankrupts Estate 21 Jac Cap. 19. vid. devant Sect. 51. 97. As to lands c. extended by a pretended Debtor or accomptant to the King after that the party shall become a Bankrupt 21 Jac. cap. 19. vid. Sect. 56. where it is set forth at large 98. As to debts owing to the Bankrupt vid. before Sect. 68. Suppose a Bankrupt be indebted to one 20 l. and to another 10 l. and hath a debt of 20 l. due to him by Bond whether may the Commissioners assign the Bond to the two Creditors joyntly and it was held by the Court that it was to be divided and assigned according to the words of the Act viz. to every Creditor a portion part and part-like Then another question was offered whether the Assignees might joyn in suit and by Warberton one of the Justices part being assigned to one and part to another the Act of Parliament doth so operate upon it that they shall sue severally for he said by the custome of London part of a debt might be attached Godbolts Reports 195. p. 282. 99. Thirdly Note the distribution Distribution of the Bankrupts Estate made by the Commissioners of the Bankrupts Estate wherein observe first to what Creditors in general It is enacted by 21 Jac. cap. 19. That the said Act and all other Acts of Parliament formerly made against Bankrupts should extend to strangers born as well Aliens as Denizens as effectually as to the natural born Subiects both to make them subject to the Law as Bankrupts as also to make them capable of the benefit of contribution as Creditors by those Laws So that satisfaction is to be made to all as well Aliens as Denizens c. 100. Also It is enacted by 21 Jac. cap. 19. That for the better distribution of the Lands c. Goods Chattels c. of the Bankrupt to and amongst his Creditors The Commissioners or the greatest part of them shall and may examine upon Oath or by any other waies or means as to them shall seem meet any person or persons for the finding out and discovery of the truth and certainty of the several debts due and owing to all such Creditor or Creditors as shall seek relief by such course of Commission to be sued forth c. 21. Jac. 19. 101. A. and B. are sureties for I S. for the payment of Money and had Counter-Bonds from I S. to save them harmless the money was not payed at the day the sureties pay it I S. after becomes a Bankrupt Resolved that A. and B. were Creditors within the Statutes of Bankrupts Crooke part 2. 127. Osborne and Churchman's case Mr. Stone in his Lecture fol. 18. makes a Querie whether one becoming a Creditor to the Bankrupt after that he had notice that he was a Bankrupt might be a Creditor relievable within the Statutes To which it may be answered in the negative for if the Law disables him to dispose of his Estate after he becomes a Bankrupt directly Then he cannot dispose of it by a mean viz. by becoming a Debtor and so to make his Lands and Goods liable to his Debt if in the case before such a Creditor were relieveable and Stone seems to be of the same opinion when he saith A Bankrupt is committed to Prison because he will not answer Interrogatories the Gao ler gives him credit for victuals he shall not be relieved although he come in before distribution fol. 183 102. A Merchant is imprisoned and after becomes a Debtor to A. and then the six months passe A. is a Creditor relievable for he is not a Bankrupt by relation Stones Lecture 182. The Statute of 21 Jac. cap. 19. makes one a Bankrupt by relation from the time of his Arrest only in two cases viz either when he makes an Escape or comes out upon common Bail which enumeration I suppose excludes relation in other cases in a penal act of Parliament 103. A Bankrupt is convicted for inmates and the Statute gives an action of Debt in such case to the Lord of the Leet c. he is no Creditor within the Statute of Bankrupts Stones Lecture fol. 21. for I conceive this is not properly a Debt but only a means given to recover a Forfeiture and by Stone a Mortgages of Lands may chuse whether he will come in as a Creditor fol. 181. There is before a special provision for satisfying of a condition by payment of the money c. by which it is intended that the Mortgagee was never to be accompted as a Creditor 104. It was decreed in Star-Chamber that a Merchant for a wrong done by him to I. S. should pay him â—ol and the Merchant becomes a Bankrupt IS is no Creditor Stones Lecture 184. for this is no Debt due for moneys borrowed or upon any original contract but only a payment laid on by the Court and an action of Debt as it is conceived lies not for it but only the party is to be punished by the Court if he perform not the decree 105. Secondly more particularly any Creditor coming in within four
months after the commission sued forth by 1 Jac. cap. 15. The words are And that it shall and may be lawful for any of the Creditors of the said Bankrupt within four months after any such Commission 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
is general without any exception so much as of wearing apparel Secondly the Donor continueth in possession Thirdly it was secret Fourthly it was made pending the writ Fifthly here was a Trust between the parties for the donor still useth the goods as his own Sixthly the words of the Deed are that it was made honestly truly and bonafide clausulae inconsuetae inducunt suspicionem Cooke lib. 3. 81. Twines case 11. Secondly it was resolved in Consideration bona fide the same case that although here were a Debt due to Twine and a good consideration of a gift yet it was not aided by the same Proviso in 13 Eliz. which was that the said Act should not extend to any Estate or Estates made upon good consideration and bona fide for this is not bona fide because it is upon a Trust and no gift shall be construed to be bona fide within the said Statute that is made upon a Trust Cooke lib. 3. 81. Twines case 12. And it is my Lord Cookes advice Advice touching Gifts in the said case that when any gift is to be made in satisfaction of a debt First that it be publickly done before Neighbours Secondly that the goods c. given be appraised by honest men Thirdly that the Donee presently after the gift take possession for the continuance of possession in the Donor is a mark of Trust Cooke lib. 3. 81. Twines case 13. One held divers lands of divers Lords by Herriot custom and to defraud one of the Lords of his Herriot he made a fraudulent gift of all his beasts Herriottable viz. of 20 Horses The Lord who was hereby grieved bringeth Debt upon 13 Eliz. tam pro Domina Regina quam pro seipso demanding the value of the 20 Horses and by Dyer and Harper it was well said by intendment of the Statute for it may be he shall never come to seize his Herriot and if he shall recover but the value the Queen shall have the one Moiety But Manwood held contra for the other Lords are as recompensable for their Herriots as the Plaintiff and Harper held that all the Lords might joyn in an action but quere saith Dier 35 1. p. 23. 14. Upon communication of marriage Proviso to determine c. between Sir R. G. and the Lady S. the said Sir R. G. promised before the affiance to assure unto her 1000 l. per an for her Joynture his estate being then 12000 l. per an and thereupon she married him without any assurance or covenant in that behalf After he conveyed by Deed lands of great value to some friends of the Ladies then his Wife to the use of the said Lady for term of 100 years if she so long lived to commence after his death and it was indorsed on the back of the Deed that the intent was that when there should be a Joynture of 1000 l. per an setled on her according to the first agreement the Lease should be void and it was held that this was no fraudulent Lease notwithstanding the Proviso to determine it at the Husbands will for the Court took diversity between the case above and when a Lease is made with a Proviso That if the Lessor pay 10 s. c. the Lease to be void because in the later case the smallness of the sum payable makes it apparent to be only a power of revocation and such a Lease a purchaser shall avoid And the Court held that the Lease aforesaid being made in pursuance of the first promise although no mention of a Lease was therein made yet it was grounded upon a good consideration and not fraudulent And although it was objected that the Lady had concealed the Lease during her Husbands life and therefore it should be fraudulent c. yet it was answered thereunto by the Chief Justice That actions ought to have their resort to the first original and the Lease being good at the first the concealment cannot make it ill Croke part 2. 455. p. 13. Dame Griffin vers Stanhope 15. Scire Facias upon a Judgment Evidence in Debt against T. H. who died against the Terre Tenants they pleaded a Feoffment made by T. H. long before the Judgment absq hoc that he was seized at the time of the Judgment or after and issue being thereupon taken the Jury found the Feoffment that it was made by covin to defraud the Plaintiff and other Creditors and judged for the Plaintiff for T. H. remained still seized as to the Creditors notwithstanding the Feoffment But if issue had been directly taken enfeoffed or not enfeoffed it had been found against the Plaintiff for in such case he must avoid the Feoffment by covin specially pleaded but here the Issue being seized or not seized by the Feoffment the covin may be given in evidence Hobert fol. 72. Humberton vers Howgill 16. Debt brought by Hawes vers Fraudulent gifts of Goods Leader as Administrator of Tho. Cookson the Case was that Tho. Cookson for 20 l. did grant unto the Plaintiff all his Goods mentioned in a Schedule annexed to the Deed and gave possession by a Pewter-dish with a covenant safely to keep them and to deliver them unto the Plaintiff upon demand and bound himself in 40 l. to perform the Covenant Tho. Cookson dies and the Plaintiff demands of the Defendant being the Administrator of Cookson the goods who refused to deliver them and hereupon the Plaintiff brought his action the Defendant pleaded the Statute of 13 Eliz. cap. 5. and that Cookson was indebted to divers in sums amounting to 100 l. naming in particular the persons and the sums and being so indebted makes the said gift being then of those and other goods possess'd to the value of 80 l. and no more and that the Deed was made by fraud between them to deceive his Creditors and the Plaintiff demurred First because the Defendant avers not that the Debts were unpaid Secondly because he doth not shew that the debts were due by Specialty for an Administrator is not liable to other debts Thirdly the Defendant supposeth that the delivery of the goods would be a devastavit in him which cannot be for the goods in the Plaintiffs hands are lyable to Creditors as Executor de son tort demesne if the Deed be fraudulent Fourthly It may be the Creditors will never sue and then the Defendant might detain the goods for ever which is inconvenient Fifthly the Defendant is not a person enabled by 13 Eliz. to plead that Plea for the Statute makes the Deed void only against Creditors but not against the party himself his Executors or Administrators judged for the Plaintiff Croke part 2. 270. p. 3. Hawes vers Leasder 17. This fraud need not be pleaded Fraud need not be pleaded but given in evidence In debt brought against the heir upon an obligation made by his father the defendant pleaded nothing by descent and it was found that before the suit begun the defendant had made a