The law against bankrupts: or, A treatise wherein the statutes against bankrupts are explained by several cases, resolutions, judgments and decrees, both at common law and in Chancery. Together with the learning of declarations and pleading relating thereunto. To which are likewise added forms and directions for commissioners, and presisidents, fit for the perusal of lawyers, or merchants and tradesmen. By T.G. serjeant at law. Goodinge, Thomas. This text is an enriched version of the TCP digital transcription A41432 of text R217956 in the English Short Title Catalog (Wing G1099C). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 459 KB of XML-encoded text transcribed from 168 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 A41432 Wing G1099C ESTC R217956 99829591 99829591 34031 2240873485

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Early English books online. (EEBO-TCP ; phase 1, no. A41432) Transcribed from: (Early English Books Online ; image set 34031) Images scanned from microfilm: (Early English books, 1641-1700 ; 2005:18) The law against bankrupts: or, A treatise wherein the statutes against bankrupts are explained by several cases, resolutions, judgments and decrees, both at common law and in Chancery. Together with the learning of declarations and pleading relating thereunto. To which are likewise added forms and directions for commissioners, and presisidents, fit for the perusal of lawyers, or merchants and tradesmen. By T.G. serjeant at law. Goodinge, Thomas. [30], 275, [29] printed for S. Heyrick, C. Harper, J. Place, J. Harrison, S. Keeble, D. Brown, J. Cleave, W. Rogers, R. Sare, W. Reeman, T. Goodwin, M. Wotton, R. Vincent, A. Roper, and J. Brixey, London : 1695. T.G. = Thomas Goodinge. Includes errata page, tables, and index. Reproduction of the original at the Harvard Law School Library. eng Bankruptcy -- Early works to 1800. Law -- England -- Early works to 1800. eebo The law against bankrupts: or, A treatise wherein the statutes against bankrupts are explained, by several cases, resolutions, judgments and decrees, Goodinge, Thomas 1695 331 75230 358 0 0 0 0 0 47.59 D The rate of 47.59 defects per 10,000 words puts this text in the D category of texts with between 35 and 100 defects per 10,000 words. 2007-09 Assigned for keying and markup 2007-10 Keyed and coded from ProQuest page images 2008-01 Sampled and proofread 2008-01 Text and markup reviewed and edited 2008-02 Batch review (QC) and XML conversion

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

Sic utere tuis , ut aliena non Laedas .

By T. G. Serjeant at Law .

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

THE PREFACE TO THE READER .

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

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

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

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

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

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

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

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

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

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

T. G.
A TABLE OF THE CASES . A. ABYN , a Turky Merchants Case , pag. 26 Allens Case in Chancery , p. 183 Andrews and Spicer , p. 133 , 161 Audly and Halsey , p. 94 , 118 , 119 , 123. Aylmer and Gerard , p. 131 B. Backwell and Littcott , p. 126 Backwells Case , p. 130 Baker and Edmonds , p. 139 Sir Anthony Batemans Casep . 16 , 17 , 31 , 108 , 109 Barnes and Cary against the Sheriffs of Bristol , p. 60 , 77 Bayly and Bunning , p. 118 , 121 , 130 , 168 Benson and Flower , p. 44 , 120 , 132 Bets and Mico , p. 130 , 143 , 169 Bingly and Warcupp , p. 124 Bolston and Ractliff , p. 126 Boylstones Case , p. 136 Bradford and Bludworth , p. 28 , 41 , 42 , 110 Bradshawes Case , p. 130 , 142 C. Calchmans Case , p. 133 Cartwright and Vnderhill , p. 38 Churchman and Osborn , p. 44 , 107 Clayton and Monks Case , p. 46 , 122 Coply and Dockmanque , p. 143 , 163 Crisp and Platt , p. 14 , 37 , 108 , 112 Craven , &c. contra Knight in Chancery , p. 174 Cullamers Case , p. 48 , 118 D. Danby and Wellengton , p. 143 Day and Thomas . p . 144 Dean and Dr. Lake , p. 180 E. Eclor and Jacobson , p. 134 Edwards Case , p. 69 F. Fitzwilliams and Lewis , p. 137 Fuller and Lane in Chancery , p. 48 , 171 G. Gerard and Aylmore , p. 131 Gibson and Tompson , p. 17 18 Green and Morgan , p. 132 , 142 Gray and Feilder , p. 146 Grove and Smith , p. 133 H. Sir John Harrison and Sir Job Harvey , p. 15 , 16 Hecrost and Hall , p. 16 Haylor and Hall , p. 16 , 174 Hanslop and Hales , p. 166 Hind the Bankers Case , p. 25 Holt and Scarscrog , p. 245 Benjamin Hintons Case , J. Jacobson and Eclor , p. 134 Jekells Case , p. 77 Jollifer and Horn , p. 38 Jonas and Boulton , L. Lidcot and Backwell , p. 196 Dr. Lake and Dean in Chancery . p . 180 M. Morgan and Green , p. 132 , 142 O. Osborn and Bradshaw , p. 165 Osborn and Churchman , p. 44 , 107 Overman and Wright in Chancery , p. 45 P. Parker and Bleek , p. 112 Penrice and Wing , p. 77 Pickerings Case , p. 46 Powel versus Stust and Timewell , p. 137 , 146 Prin and Beal , p. 133 , 165 Puckridge and Brown , p. 143 R. Rugles Case , p. 48 Radford and Bludworth , p. 28 , 41 , 42 Reeve and May , p. 170 S. Scott and Bell , p. 107 Selby and Walker , p. 164 Smith and Mills , p. 118 Spencer and Vancure , p. 111 Stiff and Timewell , p. 146 Stoover and Hastings , p. 133 T. Taylor and Hills , p. 25 Thomas and Day , p. 144 , 173 Thursby and Platt , p. 144 Trigg and Newton , p. 14 Tuckee and Cosh , p. 106 V. Vanacre and Spencer , p. 111 W. Ward and O●fly , p. 125 Watson and Norbury , p. 167 Wellempton and Danby , p. 143 Widdows and Berman in Chanceryp . 174 Wood and Hays , p. 182 Sir John Woolstenholms Case , p. 17 , 19 , 20 Y. Yardly and Knight , p. 133
A TABLE OF THE CHAPTERS . CHAP. I. FOrms of the Affidavit : Bond to the Lord Chancellor : Petition and Commission ; with some short Remarkes . CHAP. II. What Trade or Profession a man must be of , and Profess : Or what kind of Trader he must be that brings him into the Statutes of Bankrupts . CHAP. III. What Acts a man must do , or suffer to be done , before he can be said to be a Bankrupt . CHAP. IV. Rules for the Construction of the Statutes , and when the Bankrupcy shall be said to commence , CHAP. V. Of Creditors . Who are Crditors within the Statutes , and who are not : Of their Preference : Of their coming in , and within what time they are to come in , or their refusal : And of Contribution to the Charges : And the Form of an Authority to receive Contribution-Mony . CHAP. VI. Of the Proceedings of the Commissioners : The Form of the Oath : Of the Stile of the Depositions : Of declaring him to be a Bankrupt : Inhibition : A Warrant for Witnesses : A Warrant to send one to the Goal , who refuseth to be sworn , or to answer : And of the proof of Debts . CHAP. VII . The Commissioners Power in reference to the Bankrupt : Of Proclamations , and the form of it : Of breaking Houses : And in reference to the Bankrupts Wife : Of the Examination of the Bankrupt and his Wife : Of the Examination of Witnesses , and other for the discovery of the Estat● and Debts of the Bankrupt : O● the Penalties of refusing to ● sworn , to be Examined , or to Discover : Of Perjury ; and the for feitures how to be applied , and ● Interrogatories . CHAP. VIII . Of the Disposition of the Bankrup● Estate , Freehold and Copyhold Of Redemption of Lands Mortg●ged : Of Trusts , Sales and Se●tlements of Lands : What shall ● accounted Fraudulent ; and whe● and in what Cases Purchasers a● safe ; with many Late Cases an Resolutions thereupon . CHAP. IX . Of the Disposal of the Personal Estate or Goods of the Bankrupt : How , and where the Goods of a Bankrupt liable to Execution , may be sold by the Commissioners , and where not : Of Trusts and Bonds taken in the Bankrupts name , with several Cases and Resolutions . CHAP. X. Of the Disposition and Assignment of the Bankrupts Debts ; and what Assignment made by the Commissioners shall be good , and what not ; and of Declarations . CHAP. XI . Of Actions brought by Assignee of Commissioners for the recovery of Debts , or Goods of the Bankrupt : Of Declarations thereupon : Of Actions brought by the Bankrupt himself ; and the Forms of Declarations at large . CHAP. XII . Of Pleadings in respect of the Statutes of Bankrupcy by the Debtor , or by the Commissioners , to Actions brought against them ; and what Pleas shall be good , and what not . CHAP XIII . Of the Venue , Evidence and Trial. CHAP. XIV . Of Distribution : Notice to Creditors : of a Dividend , and the Form ; as also the Form of a Deed of Distribution . CHAP. XV. Of Bankrupts : Where they are Partners and of Joint-stocks . CHAP XVI . Of other things to be done , or the Consequentials after Examination , Discovery and Distribution : Of Bills of Conformity . CHAP. XVII . Of Scandalous Words relating to a Mans Trade .
PRESIDENTS . DEclaration by Assignees of th● Commissioners of Bankrupts gainst a Debtor . Sur Emisset . Declaration by Assignees of the Commissioners upon a Bond made to t●● Bankrupt . Plea to an Indebitat ’ Assumpsit , the it was assigned by the Commissioner of Bankrupcy . Plea to a Bond for performance Covenants ( or Articles ) for payment of Rent : That the Plaint●●● was a Bankrupt , and that the Defendant paid the Mony to the A●signees of the Commissioners of Bankrupcy . Scire Facias for the Creditors up●● the Statute of Bankrupts , upon judgment recovered by the Bankrupt against the Executrix . An Indenture of Assignment by the Commissioners . Another Form of an Assignment . A Deed of Distribution .

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

ERRATA .

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

THE LAW Against BANKRUPTS .
CHAP. I.

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

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

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

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

Jurat . A. B.

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

The Form of a Petition to the Lord Chancellor , or Lord Keeper , to grant a Commission of Bankrupts . In most humble manner shew unto your Lordship ,

YOur daily Orators A. B. of , &c. and C. D. of , &c. and W. L. of , &c. as well for themselves , as all other the Creditors of R. D. of the Parish of , &c. in , &c. Merchant : That whereas the said R. D. using and exercising the Trade of Merchandize , by way of Bargaining , Exchange , Bartering and Chevisance , seeking his Trade of living by Buying and Selling upon good and just Causes , for Wares and Merchandize to him sold and delivered , and also for ready Mony to him Lent , being indebted to your Orators , and others his Creditors , in divers and several sums of Mony , amounting in the whole to the sum of , &c. and upwards : Of late , that is to say , about the Month of November last past , did become Bankrupt within the several Statutes lately made against Bankrupts , to the intent to defraud and hinder your said Orators , and all others his Creditors , of their just Debts and Duties to them due and owing , ( that is to say ) within the Statute , made in the Parliament begun and holden at Westminster the second day of April , in the Thirteenth year of the Reign of our late Sovereign Lady Queen Elizabeth , concerning Bankrupts ; and within the Statute made in the Parliament begun and holden at Westminster aforesaid , the nineteenth day of March , in the first year of the Reign of our late Sovereign Lord King James , of England , France and Ireland , and of Scotland the seven and thirtieth ; Entituled , An Act for the better Relief of the Creditors , against such as shall become Bankrupts : As also within the Statute made in the Parliament ▪ begun and holden at Westminster the nineteenth day of February , in the one and twentieth year of the Reign of our said late Sovereign Lord King James , of England ; France and Ireland , and of Scotland the seven and fiftieth ; Entituled , An Act for the further description of a Bankrupt , and Relief of the Creditors against such as shall become Bankrupts ; or within some or one of them . In tender Consideration whereof , may it please your Lordship , to grant unto your Orators His Majesties most gracious Commission , to be directed to such and so many wise , honest and discreet persons , as to your Lordship shall seem meet ; Authorizing them thereby , not only concerning the said Bankrupt , his Body , Lands , Tenements , Freehold and Customary Goods , Debts , and other things whatsoever ; but also concerning all other persons , which by concealment , claim , or otherwise , do or shall offend touching the Premisses , or any part thereof , contrary to the true intent and meaning of the same Statutes . To do and execute all and every thing and things whatsoever , as well for and towards satisfaction and payment of the said Creditors , as towards and for all other intents and purposes , according to the Ordinances and Provisions of the same Statutes .

And your Orators shall pray , &c.

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

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

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

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

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

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

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

The Commission is in this manner :

WIlliam and Mary , by the Grace of God , King and Queen of England , Scotland , France and Ireland , Defenders of the Faith , &c. To our trusty and well-beloved A. B. of E. in Com ’ , &c. Esq ; C. D. of , &c Esq ; R. S. T. S. and L. W. Gent. Greeting . Whereas we are informed , that J. R. of K. in , &c. Merchant , using and exercising the Trade of Merchandize , by way of Bargaining , Exchanging , Bartering and Chevisance , seeking his Trade , and of living by buying and selling ( such a day and year ) did become Bankrupt within the several Statutes made against Bankrupts , to the intent to defraud and hinder A. B. of , &c. and W. K. of , &c. and others his Creditors of their just Debts and Duties to them due and owing , we minding the due Execution , as well of the Statute touching Orders for Bankrupts , in the Parliament begun and holden at Westminster aforesaid , the second day of April , in the thirteenth year of the Reign of our Dear Sister Elizabeth , late Queen of England , made and provided : As of the Statute made in the Parliament , begun and holden at Westminster aforesaid , the 19 day of March , in the first year of the Reign of the late King James the First , of England , France and Ireland , and of Scotland the 37th ; Entituled , An Act for the better Relief of Creditors , against such as shall become Bankrupts . And also the Statute made in the Parliament , begun and holden at Westminster aforesaid , the nineteenth day of February , in the 21th year of the Reign of the said late King James the First , of England , France and Ireland , and of Scotland the 57th ; Entituled , An Act for the further description of a Bankrupt , and Relief of Creditors against such as shall become Bankrupts . Upon Trusts of the Wisdoms , Fidelities , Diligence and provident Circumspection which we have conceived in you , do by these presents Name , Assign , Appoint , Constitute and Ordain you our special Commissioners , giving full Power and Authority unto you , Four or Three of you , whereof you the said A. B. or C. D. to be One , according to the same Statutes , and every or any of them , not only concerning the said Bankrupt , his Body , Lands , Tenements , Freehold , and Customary Goods , Debts , and other things whatsoever ; but also concerning all other persons , which by Concealment , Claim , or otherwise , do or shall offend touching the Premisses , or any part thereof , contrary to the true intent and meaning of the same Statutes , or any of them , to do and execute all and every thing and things whatsoever , as well for and towards satisfaction and payment of the said Creditors , as towards and for all other intents and purposes , according to the Ordinances and Provision of the said Statutes : Willing and Commanding you , Four or Three of you , whereof you the said A. B. or C. D. to be One , to proceed to the Accomplishment and Execution of this our Commission , according to the true intent and meaning of the same Statutes , with all diligence and effect , as our special Trust is in you . Witness our selves at Westminster the , &c.

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

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

CHAP. II.

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

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

And as to that , it is to be considered ;

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

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

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

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

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

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

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

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

IT is not buying and selling 1 Note . of Land , but of Personal things , that makes a man a Bankrupt , March Rep. 37.

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

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

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

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

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

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

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

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

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

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

A Taylor that makes Garments only Taylor . and as Servant to his Customers , shal● not be a Bankrupt . But ,

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

A Carpenter in London hath been adjudged Carpenter . a Bankrupt ; but not quà ● Working-Carpenter .

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

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

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

A Vintner may be a Bankrupt ; or ● Vintner . Brewer . Brewer .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. III.

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

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

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

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

This Description consists of these several parts .

1. ABsconding or withdrawing him-himself , and that is Four Ways .

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

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

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

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

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

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

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

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

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

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

Observe this difference ,

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

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

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

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

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

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

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

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

The next is , per 21 Jac.

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

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

The next is ,

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

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

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

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

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

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

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

And they may be considered two ways .

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

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

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

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

Of Settlements voluntary .

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

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

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

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

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

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

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

CHAP. IV.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. V.

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

Who are Creditors within the Statute , and who not .

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

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

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

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

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

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

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

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

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

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

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

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

Per Stat. 21 Jac. It is enacted , That Judgmentees , Conusees and Attachers by Foreign Attachment to come in as Creditors for their share . all , and every Creditor and Creditors , having security for his , or their Debts , by Judgment , Statute , Recognisance , Specialty with Penalty , or without , or having no security , or having made Attachment in London , or any other place , by vertue of any Custom , there used , of the Goods and Chattels of any such Bankrupt , whereof there is no Execution or Extent served and executed upon any the Lands , Tenements , Hereditaments , Goods , Chattels , and other Estate of such Bankrupt , before such time as he , or she shall , or do become a Bankrupt , shall not be relieved upon any such Judgment , Statute , Recognisance , &c. for any more than a rateable part of their just and due Debts with the other Creditors of the said Bankrupt , without respect to any such penalty , or greater sum contained in any such Judgment , Statute , Recognisance , &c. Of Foreign Attachment , Vide infra .

Of Preference .

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

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

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

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

Of Creditors coming in , and of Contribution .

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

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

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

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

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

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

The Form of an Authority to receive Contribution Mony .

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

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

Of Distribution , Vide infra .

CHAP. VI.

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

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

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

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

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

The Stile of the Depositions .

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

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

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

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

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

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

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

As to the proof of Debts . The Commissioners Proof of Debts . must swear the Creditors which will come in , of the Truth and Value of the Debts due to them .

The Form of the Oath for proving a Debt .

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

Debts proved upon Oath by the Creditors , as followeth .

Let every man subscribe his Debt .

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

Vide of this more infra .

A Warrant from the Commissioners for Witnesses .

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

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

E S.

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

A. B. C. D. E. F.
A Warrant to Commit a Person to the Goal who refuseth to be Sworn , and to Answer Interrogatories .

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

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

There were three exceptions to the Declaration .

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

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

Commissioners Power .

1. As to the Bankrupt himself .

To cause him to appear By Proclamation . By breaking up Houses .

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

Per Stat. 1 Jac. c. 15. The said Commissioners may call before them , or the major part of them the said Bankrupt ; and if upon lawful warning left or Warning . made in Writing at three several times , at the dwelling-place or House where the said Bankrupt , his Wife , or Family for the most part of his abode did Lodge , or remain within one year next before he , she or they became Bankrupt , the said Bankrupt shall not appear before the said Commissioners , or the greater part of them , that then , and thenceforth it shall be Lawful for the greater number of the said Commissioners to appoint , to proclaim the said Proclaim . party a Bankrupt , at such publick place or places where the said Commissioners shall think meet , warning him , her or them to appear before them upon the said Commission at some time appointed . And that if upon such several Proclamations made in some publick place , the party offending yield not his Body , &c. the Commissioners may award a Warrant to such fit persons as they Warrant to Apprehend . think meet , to apprehend the Body or Bodies of such Offender , and to bring him before the said Commissioners , wheresoever the said party or parties offending may be found in place priviledged , or not , to be examined by the said Commissioners , or the greatest part of them .

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

The Form of a Proclamation .

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

God Save the King and Queen .
The Commissionrs Power in breaking up Houses .

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

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

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

The words of the Statutes concerning this are as follow .

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

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

And by the Stat. 21 Jac. c. 19. It is Enacted , That after such time as any Person shall by the said Commissioners , executing the said Commission , or the greater part of them , be lawfully adjudged or declared to be a Bankrupt ; the said Commissioners , executing such Commission , shall have Power and Authority to examin upon Oath , the Wife Wife Examined and Wives of all and every such Bankrupt , for the finding out and discovering of the Estate and Estates , Goods and Chattels of such Bankrupt or Bankrupts , concealed , kept or disposed of by such Wife or Wives , in their own Person and Persons , or by their own Act or Means , or by any other Person or Persons . And that she and they , the said Wife and Wives shall incur such danger and penalty for not coming before the said Commissioners , or for refusing to be sworn and examined , or for not disclosing the truth upon her or their examination , as in and by the said former Laws , or either of them is already made and provided against any other Person or Persons in the like Cases .

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

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

By Stat. 21 Jac. c. 19. It is Enacted , That if any Bankrupt , upon his or her Examination or Examinations to be taken before the said Commissioners executing the said Commission , be found fraudulently or deceitfully to have conveyed The Bankrupts fraudulent conveyance away of his Goods . away his or her Goods , Chattels , Lands , Tenements , Offices , Fees , Rents or Annuities , or other Estate , or any part thereof , to the value of 20 s. or above , to the end and purpose to hinder the execution of this Statute , or of any other the aforesaid Statutes , or thereby to defraud , delay or hinder his or her Creditors of the same , and shall not upon his or her examination discover unto the said Commissioners , and ( if it lie in his or her power ) deliver unto the said Commissioners all that Estate , Goods and Chattels , so fraudulently and deceitfully conveyed away , as aforesaid , or by him or her , his or her means kept or detained from the said Commissioners , or that cannot make it appear unto the said Commissioners , that he or she hath sustained some casual loss , whereby he or she is disabled to pay , what he or she then owed , shall or may be indicted for such fraud or Indictment ▪ abuse , at the Assises or General Sessions , to be holden before the Judges of Assise , or Justices of the Peace of the County or Place where he or she shall become Bankrupt : And if upon such Indictment or Indictments , the Bankrupt be thereof convicted , he or she so convicted , shall be set upon the Pillory in some Pillory . publick place , for the space of two hours , and have one of his or her Ears nailed to the Pillory , and cut off .

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

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

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

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

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

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

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

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

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

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

Per Stat. 21 Jac. 15. The Commissioners may examine upon Oath , or by any other ways or means , as to them shall seem meet , any person or persons for the finding out and discovery of the Truth and certainty of the several Debts due and owing to all such Creditor or Creditors , as shall seek relief by the Commission .

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

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

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

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

1 Jac. c. 15. IF upon the Bankrupts examination it appears that he or she , or they have committed any wilful or corrupt Perjury , tending to the hurt or damage of the Creditors of the said Bankrupt , to the value of 10 l. of Lawful Mony of England or above , the party so offending shall or may be thereof indicted in any of the King's Majesties Courts of Record , and being lawfully corrected thereof , shall stand upon the Pillory in some publick place , by the space of two hours , and have one of his Ears nailed to the Pillory , and cut off . And if any other person or persons , other than the Bankrupt , either by subornation , unlawful procurement , sinister perswasion , or means of any others , or by his own Act , consent or agreement shall wilfully and corruptly commit any manner of wilful perjury by his deposition to be taken before the said Commissioners , or the greater part of them , as aforesaid , that then the Parties so offending , and all , and every person and persons that shall unlawfully and corruptly procure any such unlawful , wilful and corrupt Perjury , shall or may therefore be indicted in any of the Kings Majesties Courts of Record ; and after his or their conviction thereof , shall incur such forfeitures , and receive and suffer such pains and punishments as are limited by the Statute concerning perjury , in the 5th Year of the reign of Queen Elizabeth .

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

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

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

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

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

Per Stat. 1 Jac. c. 15. It is Enacted , That all and every Sum and Sums of Mony , which shall be forfeited by force of this said Act , shall be sued for , and recovered by the said Creditors only , or any of them that will sue for the same , by Action of Debt , Bill , Plaint or Information in any of the Kings Majesties Courts of Record ; and the Sum or Sums of Mony so recovered , the Charges of Suit being deducted , shall be distributed and divided towards the payment of the said Creditors of the Bankrupt .

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

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

CHAP. VIII .

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

PER Stat. 13 Eliz. c. 7.

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

Provided always , and be it Enacted , That all , and every person or persons , Copyhold . to whom any such Sale of Copyhold or Customary Lands or Tenements shall be made , shall before such time as they , or any of them shall enter or take any profit of the same Lands or Tenements , agree and compound with the Lords of the Mannors , of whom the same shall be holden , for such Fines or Incomes as heretofore hath been most usual and accustomed to be yielded or paid therefore ; and that upon every such agreement or composition , the said Lords for the time being , at the next Court to be holden , at , or for the said Mannors , shall not only grant to the said Vendee or Vendees upon request , the same Copy or Customary Lands or Tenements , by Copy of Court-Roll of the said Mannors , for such Estate or Interest as to them shall be sold , and reserving the Ancient Rents , Customs and Services ; but also in the same Court admit them Tenants of the same Copy or Customary Lands , as other Copyholders of the same Mannors have been wont to be admitted , and to receive their Fealty accordingly .

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

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

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

And as for the Power of the Commissioners , touching the Debts due to the said Bankrupt , it is further Enacted , That the Commissioners of Bankrupts Debts due to Bankrupt ▪ or the greater part of them , shall have Power to Grant and Assign , or otherwise to Order or Dispose all , or any of the Debts due to , and for the benefit of the said Bankrupt , by what person or persons soever , or in what manner and form soever , to the use of the Creditors of the said Bankrupt , according to the true intent of the Statute of 13 Eliz. And that the same Grant Assignment or Disposition of the said Debts in form aforesaid , to be made by the said Commissioners or the greater part of them , shall so vest the Property , Right and Interest of the said Debt and Debts , in the person or persons of him , her or them , to whom it shall be Granted , Assigned or Ordered by the said Commissioners or the greater part of them , as fully to all intents and purposes , as if the said Bill , Bond , Bonds , Statutes , Recognisances , Judgments or Contract , whereupon the said Debt or Debts , Deed or Deeds shall arise or grow , had been made , to or with , or for the said person or persons , to whom the same shall be so Granted , Assigned or Disposed by the said Commissioners ; and that after such Grant , Assignment or Disposition made of the said Debts , that neither the Bankrupt , nor any other to whom any such Debt shall be due , shall have power to recover the same , nor to make any Release or Discharge thereof ; neither shall the same be Attached as the Debt of the Bankrupt , Attachment . or such said other person or persons to whom the same shall be due , by any other person or persons , according to the Custom of the City of London , or otherwise ; but that the Party or Parties to whom the same Debts shall be assigned , shall have like remedy to recover the same , as fully and lawfully in the Name or Names of the person or persons to whom the same shall be so Granted , Assigned or Ordered by the said Commissioners , in all respects and purposes , as the party himself might have had , any Law , Statute , Use or Custom to the contrary thereof , in any wise notwithstanding .

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

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

And it is further Enacted , That if any Bankrupt shall Grant , Convey or Assure any Lands , Tenements , Hereditaments , Goods , Chattels , or other Estate unto any person or persons , upon Condition Mortgages . or Power of Redemption at a day to come , by payment of Mony or otherwise ; That it shall and may be lawful to , and for the said Commissioners , or the greater part of them , before the time of the performance of such Condition , to Assign and Appoint under their Hands and Seals , such person or persons as they shall think fit , to make tender or payment of Mony , or other performance according to the nature of such Condition , as fully as the Bankrupt might have done : And that the said Commissioners or the greater part of them , shall after such Tender , Payment or performance , have power to Sell and Dispose of such Lands , Tenements , Hereditaments , Goods and Chattels , and other Estates so Granted , Conveyed or Assured , upon Condition , to and for the Benefit of the Creditors , as fully as they may Sell or Dispose of any the Estate of the Bankrupt .

General Notes of Sales by Commissioners .

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

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

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

First as to the Bankrupts real Estate . Freehold . Copyhold .

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

I. Lands in his own possession at the time of his becoming a Bankrupt .

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

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

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

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

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

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

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

It is plain these are within the Statute .

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

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

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

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

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

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

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

Of Lands Mortgaged , or Estates on Condition .

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

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

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

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

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

Of Lands whereof the Bankrupt is jointly seised .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Concerning the Sale of Copyhold Lands .

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

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

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

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

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

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

CHAP. IX .

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

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

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

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

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

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

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

Observe , They must be searched , viewed and appraised .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Upon some Valuable Consideration .

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

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

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

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

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

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

Bonds .

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

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

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

Of Goods Pawned .

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

Disposition of Rent .

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

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

CHAP. X.

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

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

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

As to Mony Recoverd , Vide prius .

The words of the Statute of 1 Jac. c. 15. that fully enable the Commissioners to dispose of the Bankrupts Debts , are ; Be it Enacted by the Authority aforesaid , That the Commissioners of Bankrupts shall have Power to Grant and Assign , or otherwise to Order and Dispose all , or any of the Debts due to , and for the benefit of the ▪ said Bankrupt , by what person or persons soever , or in what manner and form soever , to the use of the Creditors of the said Bankrupt , &c. and that the same Grant ; Assignment ▪ or Disposition of the said Debts ▪ in form aforesaid , to be made by the said Commissioners , shall so vest the Property , Right and Interest of the said Debt and Debts in the person or persons of him , her or them , to whom it shall be Granted , Assigned or Ordered by the said Commissioners or the major part of them , as fully to all intents and purposes , as if the said Bill , Bond , Bonds , Statutes , Recognisances , Judgments or Contract , whereupon the said Debt or Debts shall arise or grow , had been made to , or with , or for the said person or persons , to whom the same shall be so Granted , Assigned or Disposed by the said Commissioners ; and that after such Grant , Assignment or Disposition made of the said Debts , that neither the Bankrupt , nor any other to whom any such Debt shall be due , shall have power to Recover the same , nor to make any Release or Discharge thereof ; neither shall the same be Attached as the Debt of the Bankrupt , or such said other person or persons , according to the Custom Foreign Attachment . of the City of London , or otherwise ; but that the Assignees shall have like power to recover the same , as fully and lawfully in the Name or Names of the person or persons to whom the same shall be so Granted , &c. by the Commissioners in all respects , as the Party might have had , any Law , Statute , Custom , &c. to the contrary notwithstanding .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They may assign a Judgment , 2 ▪ Keb. 706 , Eclor and Jacobson .

Leases disposed by the Commissioners .

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

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

Advowsons , Presentations .

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

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

Common .

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

Rents , Vide supra . Herriots , Reliefs .

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

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

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

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

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

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

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

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

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

Declaration .

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

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

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

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

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

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

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

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

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

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

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

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

CHAP. XI .

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

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

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

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

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

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

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

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

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

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

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

Of Actions brought by the Bankrupt himself .

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

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

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

Of Declarations by Assignees of Commissioners of Bankrupt .

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

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

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

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

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

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

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

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

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

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

CHAP. XII .

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

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

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

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

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

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

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

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

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

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

Of Pleadings to Actions brought against the Commissioners .

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

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

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

As for the Form of Pleas , Vide postea .

CHAP. XIII .

Of the Venue , Evidence , Trial.

Of the Venue .

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

Evidence 〈◊〉

THE Evidence 〈◊〉 were the Depositions before the Commissioners Depositions . of the Bankrupt , which per Curiam is good enough ▪ bu● the Defendants Councel opposing them ▪ they proved viva voce what the Bankrupt con●est .

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

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

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

Maxims of Bankrupts .

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

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

He that is a Bankrupt to one Creditor , is a Bankrupt to all , Stiles Reg. 48.

CHAP. XIV .

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

Of Distribution , Vide prius sub Titul ’ Assignment .

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

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

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

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

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

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

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

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

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

CHAP. XV.

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

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

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

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

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

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

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

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

CHAP. XVI .

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

Remedy for the Creditors for the Remainder of their Debts .

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

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

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

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

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

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

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

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

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

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

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

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

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

Allens Case in Chancery .

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

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

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

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

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

All which notwithstanding Allen refusing the Agreement with Habersley , preferred 1. One Creditor prefers his Bill , suggesting that the Incumbrances were fraudulent . a Bill in Chancery against Edwards , Alderman Boles , Smith , Cheney , Wood and Edwards his Father ( a man 80 years old ) complaining that the Mortgage , Statutes and Lease were all fraudulent , and the Mony being paid , were kept on foot by practise to prejudice the Creditors , and the sale made by the Commissioners .

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

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

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

Hillary 7 Jac. Regis .

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

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

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

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

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

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

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

The Lord Chancellor , upon reading 13 Noc● . 1● Jac. the Report , gave time to Allen to make his election , whether he would keep the Land and pay the Mony , or depart with the Land and receive his Mony .

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

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

For not performing the Decree Allen is committed .

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

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

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

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

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

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

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

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

Of Bills of Conformity .

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

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

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

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

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

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

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

CHAP. XVII .

Of Scandalous Words relating to a Mans Trade .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thou art not worth a Groat , not Actionable , P. 15. Car. B. R.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An Indenture of Assignment by the Commissioners of Bankrupts .

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

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

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

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

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

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

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

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

As for the Schedule sixt to the Bill , Intitle it thus . The Schedule or Inventory , whereof mention is made in the Deed , whereunto the same is annexed , and whereunto the Bill annexed doth relate , as followeth , ( viz. ) Monies come to the Hands and Possession of several persons of the said J. R.'s and belonging to his Estate . Imprimis , In ready Mony which came to the Hands and Possession of — 100 l. Item , &c. Debts owing to the said J. R. and his Estate . Imprimis , Owing by James West . — In toto , &c.
Bond from the Assignees to the Principal Creditor in 2000 l. to pay his proportionable share .

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

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

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

Mr. Ben. Hintons Case in Chancery .

Hillary 1687.

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

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

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

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

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

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

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

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

It was ordered the Plea should stand 17 July . 4 Jac. II. for an Answer , with liberty for the Plaintiff to except , who excepted , and the Defendants Answered . As to all Errors , Overcharges and Usurious Interest they referred to Hinton's Books .

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

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

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

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

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

On reading the Process and view of 11 D●cemb . 2 W. & M. Hinton's Accounts , whereby many Errors , Overcharges and Miscomputations appeared , The Court declared , the Defendants , the Assignees ought to stand in place of the Creditors of Hinton , to whom the Bonds of 6300 l. was given , and referred it to Sir John Francklin to look into the whole matter , beginning with the Account distinguished by the name of the 4000 l. Account , made up about 1670. and so downwards into the several Accounts , and to state how he finds the same , and Errors , Overcharges and Miscomputations and Allowances of Interest not allowed by Law appeared to be in any of Hinton's Books of Accounts , and what Mony Butcher and Short , and which of them paid towards discharge of the Bonds in Decemb. 1675. or any other Bonds , and which of them , when , and to whom . And Hinton's Books , Accounts and Bonds were to be left with the Master on Oath .

The Master made his Report , and 22 Jan. 1690. shews the Errors , Overcharges and Miscomputations , and Interest carryed from one Ballance to another at 12 l. per Cent.

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

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

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

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

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

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