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A28155 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 Billinghurst ... Billinghurst, George. 1676 (1676) Wing B2906; ESTC R4175 68,407 208

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A. hath an advowson the Church becomes void and then A. becomes a Bankrupt It is made a Quere by Mr. Stone in his Lecture whether the Commissioners may sell it and I suppose it may be answered negatively that they cannot sell it for it is a thing in Action and so not saleable by the Common Law and no particular power is given by any of the Acts for sale of it as there is for sale of Debts due to the Bankrupt as hereafter appeareth And without doubt if the Commissioners present any one for money it is Simony 62. Leases Goods Chattels or Debts of the Bankrupt by him conveyed or procured to be conveyed or transferred to any of his Children or other person or persons except the same shall be purchased conveyed or transferred for or upon marriage of any of his or her children both the parties married being of years of consent or some valuable Consideration 1 Jac. cap. 15. 63. Any Goods or Chattels that shall by any means come unto the Bankrupt before such time as his Debts shall be satisfied or agreed for as well as other Chattels which the Bankrupt had when first declared to be a Bankrupt 13 Eliz. cap. 7. 64. Goods and Chattels extended of the Bankrupts by pretended accomptants or debtors to the King vide devant Sect. 56. 65. Goods and Chattels of the Goods extended Bankrupt extended or taken in execution Goods of the Bankrupts were extended by vertue of a Statute and the extent was before he became Bankrupt but the Liberate after and held that they could not be sold by the Commissioners of Bankrupts because being extended they are in Custodia Legis so that the cognizors have no power to give sell or otherwise dispose of them And although the Cognizee hath no absolute property in them by the extent and before the Liberate because at the return of the Liberate he may refuse them if he will yet that is for the advantage of the Cognizee and the Cognizor hath no property in them but only in case where the Cognizee refuseth them for the goods are bound by the Teste of the Writ of extent or execution sued and when the liberate is sued it hath relation to the extent and they are but as one extent Crook part 3. 149 150. Audley versus Halsey 66. Goods and Chattels whereof Goods possest by the Bankrupt the Bankrupt hath the possession and disposal as his own The words of the Statute are Whereas many persons before they become Bankrupt do convey their goods unto other men upon good consideration and yet keep the same and are reputed owners thereof and do dispose of the same as their own Be it enacted that if any person or persons shall become a Bankrupt and at such time as they shall so become a Bankrupt shall by the consent and permission of the true owners or Proprietors have in their possession order and disposition any of the goods or chattels whereof they shall be reputed owners and take upon them the sale alteration and disposition of them as owners the Commissioners or greater number may sell and dispose of the same for the benefit of the Creditors 21 Jac. 19. 67. Goods or Chattels passed away upon condition or power of redemption by the Bankrupt 21 Jac. 19. vide before Sect. 51. 68. Debts due to the Bankrupt Debts are saleable by 13 El. cap. 7. expresly and although they are transferred into other mens names by 1 Jac. chap. 15. 69. In an action upon the Case brought for words spoken by the Defendant against the Plaintiff the Plaintiff recovered of the Defendant for Damages and Costs twelve pounds And after the execution sued and money levied by the Sheriff before the return of the Writ the Plaintiff becomes a Bankrupt and the said twelve pounds is assigned by the Commissioners to the creditors and the money being brought into Court the Plaintiff now a Bankrupt moves for it and the Creditors to whom the same was assigned likewise moved for it and by Jones and Hide Justices the assignment was good because it was the Bankrupts Debt and forfeitable by out-lawry but Whitlock and Crook Justices contra because the Sheriff levying of the money before the party became a Bankrupt it was in Custodi● legis and the Creditors cannot give a discharge nor are they parties in Court and if the Judgment should be reversed not compellable to make restitution and afterwards it was judged accordingly and that the money be delivered to the plaintiff he acknowledging satisfaction also it was said that the money was not the Plaintiffs until payed out of Court Crook part 3. 166 167. Benson vers Flower and Backwel 69. A. hath one in execution for Debt and then he becomes a Bankrupt the Commissioners assign the Debt if the party escape whether may this Assignee have an action of escape this is a Quere in Mr. Stones Lecture fol. 9. And I conceive may be answered in the affirmative for by Westminster 2. chap. ●1 Debt is given in such case against the Jaylor by the equity of that Statute for the words extend only to Accomp●ants And by 1 Jac. chap. 15. It is thus That the Commissioners of Bankrupt or the greater part of them shall have power to grant and assign or otherwise to order and dispose all or any of the Debt due or to be due to and for the benefit of the said Bankrupt by what person or persons soever or in what manner or form soever to the use of the Creditors of the said Bankrupt according to the true intent of the former Statute of Bankrupts And that the same grant assignment or disposition of the said Debts in form aforesaid to be made by the said Commissioners or any part of them shall so vest the property right and interest of the said Debt and Debts in the person or persons of him her or them to whom it shall be granted c. by the said Commissioners as fully to all intents and purposes as if the said Bill Bond c. Judgment or Contract whereon the said Debt or Debts shall arise or grow had been with the person or persons to whom the same shall be granted c. And that after such grant assignment or disposition neither the Bankrupts nor any other shall have power to receive recover or release it c. 1 Jac. 15. So that by the assignment the Debt is vested to all intents and purposes in the Grantee as if he had been the origina● Debtor might have had his action against the Sheriff therefore the Grantee and the Statute shall be liberally expounded for the relief of Creditors especially seeing in this case the Assignee or Grantee is without any remedy for the Debt if he cannot relieve himself against the Sheriff 70. And Mr. Stone in his Lecture makes another Quere whether he that comes in as Creditor and hath a debt made over unto him by the Commissioners c. may not be barred
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 Felo● 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 Pie●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