Authority aforesaid that if any such person or persons which is or shall be indebted do of purpose withdraw him or themselves out or from his or their usual mansion house or houses that then upon complaint thereof made to the said Commissioners having authority as is aforesaid the same Commissioners or the more part of them shall by vertue and authority of this present Act have full power and authority to award five Proclamations to be made in the Queens name upon five sundry Market dayes in such places near the place where such Bankrupt hath most commonly dwelled or made his abode commanding him or them by the same Proclamations in the Queens name to return with all convenient speed and to yeeld his or their bodies before the said Commissioners having authority as is aforesaid or one of them at such time and place as by the said Proclamation shall be appointed and if the said person be not according to such Proclamation repair and yield his or their body as is aforesaid that then the body of all and every such offender or offenders shall be adjudged taken and deemed to all intents and purposes out of the Queens protection and that also every person and persons that shall willingly and wittingly help to hide or convey or shall wittingly and willingly receive detain or keep secretly any person or persons so demanded by Proclamation as is aforesaid shall suffer such pains by imprisonment of his or their bodies or to pay such fine to our Sovereign Lady the Queens Majesty her Heirs and Successors as to the said Lord Chancellor or Lord Keeper of the great Seal being informed thereof by the Commissioners so to be appointed as is aforesaid or the more part of them shall seem meet and convenient for their said offence or offences Provided always and be it further enacted that if the Creditors of any such offender or offenders debtor or debtors which so do depart the Realm keep his or their house or houses or otherwise absent or withdraw him or themselves into places unknown or take Sanctuary or will suffer him-or themselves to be arrested or outlawed or yield his or their bodies into prison purposely and for the causes aforesaid be not fully satisfied or otherwise contented for their debts and duties by the way and means before specified and declared that then the said Creditor or Creditors and every of them shall and may have their remedy for the recovery and levying of the residue of their said debts or duties whereof they shall not be fully satisfied payd or otherwise contented in form aforesaid against the said offender or offenders in like manner and form as they should and might have had before the making of this Act. And that the said creditor or creditors and every of them shall be only barred and excluded by vertue of this Act of and for every such part and portion of the said debts and duties as shall be paid satisfied distributed or delivered unto him or them by order of the said persons as is aforesaid and of no more portion or parcel thereof Any thing herein specified that may be taken or construed to the contrary notwithstanding Provided always and be it also enacted by authority aforesaid that if any person or persons which is or shall be published and declared to be a Bankrupt by vertue of this Act shall at any time after purchase any lands tenements hereditaments free or copy offices fees goods or chattels or that any lands tenements hereditaments free or copy offices fees goods or chattels shall descend revert or by any means come to any such person or persons being Bankrupts as is aforesaid before such time as their debts due to their creditors shall be fully satisfied and payed or otherwise agreed for that then the said lands tenements hereditaments as well free as copy offices fees goods and chattels shall by vertue of this Act be by the said Commissioners to be appointed as is aforesaid or the more part of them be bargained sold extended delivered and used for and towards the payment of the said creditors in such like manner and form as other the lands tenements hereditaments free or copy offices fees goods and chattels of the said Bankrupts which they had when they were first declared to be Bankrupts should or might have been bargained sold disposed or used by vertue of this Act. Provided alwayes that this Act shall not extend to any lands tenements or hereditaments free or copy-hold which heretofore have been assured by any such Bankrupt or hereafter shall be assured by any Bankrupt before he become Bankrupt so always that such assurance be made bona fide and not to the use of the Bankrupt himself only or of his heirs and that the parties to whose use such assurance hath or shall be made be not at or before the making of such assurance privy or consenting to the fraudulent purpose of any such Bankrupt to deceive his Creditors 1 Jac. 15. 21. Jac. 15. 1 Jacob. Chap. 15. An Exposition and addition to the Statutes of Bankrupts made 13 Eliz. 7. FOr that fraud and deceits as new diseases dayly increase amongst such as live by buying and selling to the hindrance of traffick and mutual commerce and to the general hurt of the Realm by such as wickedly and wilfully become Bankrupts And for that the description of a Bankrupt in former Statutes is not so fully expressed nor the power given thereby to the Commissioners for Bankrupts so large as is meet in such cases of deceit to prevent the deceitful actions of Bankrupts For remedy whereof Be it therefore enacted by our Sovereign Lord the King and by the Lords Spiritual and Temporal and the Commons at this present Parliament assembled and by the authority of the same That all and every such person and persons using or that shall use the trade of Merchandize by way of bargaining exchange bartrie chevisance or otherwise in gross or by retail or seeking his her or their trade of living by buying and selling and being a Subject born of this Realm or any the Kings Dominions or Denizen who at any time sithence the first day of this present Parliament or at any time hereafter shall depart the Realm or begin to keep his or her house or houses or otherwise to absent him or her self or take Sanctuary or suffer him or her self willingly to be arrested for any debt or other thing not grown or due for money delivered wares sold or any other just or lawful cause or good consideration or purposes or hath or will suffer him or her self to be outlawed or yield him or her self to prison or willingly or fraudulently hath or shall procure him or her self to be arrested or his or her goods money or chattels to be attached or sequestred or depart from his or her dwelling house or make or cause to be made any fraudulent grant or conveyance of his her or their Lands Tenements goods or chattels to
the intent or whereby his her or their Creditors being Subjects born as aforesaid shall or may be defeated or delayed for the recovery of their just and true debts or being arrested for debt shall after his or her arrest lie in prison six months or more upon that arrest or upon any other arrest or detention in prison for debt and lie in prison six months upon such other arrest or detention shall be accompted and adjudged a Bankrupt to all intents and purposes And be it further enacted by the authority of this present Parliament that the like Commissions orders benefits and remedies which are and be provided and limited by the said former Act of Parliament made in 13 nuper Eliz. Reginae against any Bankrupts therein described for or concerning his her or their lands tenements hereditaments fees annuities offices goods chattels wares merchandizes and debts or any of them shall be had pursued taken and expounded against such person and persons that are herein expressed to be Bankrupts his her and their lands tenements hereditaments fees annuities offices goods chattels wares merchandises and debts in such like manner and form as the same ought or might have been if the persons herein described to be Bankrupts had been described to be Bankrupts according to the intent of the said former Statute And that it shall be lawful for any of the creditors of the said Bankrupt within iiii months after any such Commission shall be sued forth and until distribution shall be made by the said Commissioners for the payment of the Bankrupts debts as in such case hath been used to partake and joyn with the other Creditors thatâ— shall sue forth any such commission for satisfaction and payment of his her or their debts to him or them owing without any hindrance let or disturbance of any of the same Commissioners or of any of the other creditors of any such Bankrupts the same Creditors so coming in to contribute to the charges of the said Commission and that if the said Creditors come not in within iiii months then the Commissioners to have power to distribute Be it further enacted that if any person which hereafter is or shall be a Bankrupt by intent of this Statute shall convey or procure or cause to be conveyed to any of his children or other person or persons any mannors lands tenements hereditaments offices fees annuities leases goods chattels or transfer his debts into other mens names except the same shall be purchased conveyed or transferred for or upon marriage of any of his or her children both the parties married being of the years of consent or some valuable consideration shall be in the power and authority of the Commissioners in this behalf to be appointed or the more part of them to bargain sell grant convey demise or otherwise to dispose thereof in as ample manner as if the said Bankrupt had been actually seised or possessed thereof or the debts were in his own name of the like estate or interest to his or their own use at such time as he or shee became Bankrupt And that every such grant bargain sale conveyance and disposition of the said Commissioners or of the greater part of them shall be good and available to all intents constructions and purposes in the Law against the offender or offenders his heirs executors administrators and assigns and such children and persons as shall be subject to this Statute and against all other person and persons claiming by from or under such offender or offenders or such said other persons to whom such conveyance shall be made by the said Bankrupt or by his means or procurement And for that the practises of Bankrupts of late are so secret and so subtile as that they can very hardly be found out or brought to light and for that the former statute giving power to the Commissioners to examine others than the Bankrupts hath not fully or sufficiently authorized them to examine the said Bankrupt upon oath For remedie whereof Be it further enacted by the authority of this present Parliament That the said Commissioners may call before them or the greater part of them the said Bankrupt and if upon lawful warning left or made in writing at three several times at the dwelling place or house where the said Bankrupt his wife or family for the most part of his abode did lodge or remain within one year next before he she or they became Bankrupt the said Bankrupt shall not appear before the said Commissioners or the greater part of them That then and from thenceforth it shall be lawful for the greater number of the said Commissioners to appoint to proclaim the said party a Bankrupt at such publick place or places where the said Commissioners or the greater part of them shall think meet warning him her or them to appear before them upon the said Commission at some time appointed And that if upon the five several Proclamations made in some publick place the party offending appear not before the said Commisiioners and yield his her or their bodies to them or some of them the said Commissioners or the greater part of them shall or may award a Warrant to such fit person or persons as they think meet to apprehend the body and bodies of the said offenders and offenders and to bring him her or them so offending before the said Commissioners wheresoever the said party or parties offending may be found in place priviledged or not to be examined by the said Commissioners or the greater part of them And that it shall be lawful for the said Commissioners or the greater part of them to examine the said offender or offenders upon such Interrogatories touching the Lands tenements goods chattels debts bills bonds books of account and such other things as may tend to disclose his her or their estate or the secret grants conveyances and eloyuing of his or their lands tenements goods money and debts as they shall think meet And that if therein the offender or offenders shall refuse to be examined or to answer fully to every Interrogatory to him to be ministred by the said Commissioners or the greater part of them it shall be lawful for the said Commissioners or the greater part of them to commit the said offender or offenders to some strait or close imprisonment there to remain untill he she or they shall better conform him or her self And that if upon his her or their examination it shall appear that he she or they have committed any wilful or corrupt perjury tending to the hurt or damage of the creditors of the said Bankrupt to the value of ten pounds of lawful money of England or above the party so offending shall or may thereof be indicted in any of the Kings Majesties Courts of Record and being lawfully convicted thereof shall stand upon the Pillory in some publick place by the space of two hours and have one of his ears nailed to the pillory and cut off And
custody who at any time after the end of present Session of Parliament shall either by himself or others by his procurement obtain any protection or protections other than such person or persons as shall be lawfully protected by the priviledge of Parliament or shall prefer or exhibit unto his Majesty his Heirs or Successors or unto any of the Kings Courts any Petition or Petitions Bill or Bills against his or her Creditor or Creditors or any of them thereby desiring or indeavouring to compel or enforce them or any of them to accept less than their just and principal debts or to procure time or longer days of payment than was given at the time of their originall contracts or being indebted to any person or persons in the sum of one hundred pounds or more shall not pay or otherwise compound for the same within six months next after the same shall grow due and the Dâ—btor be arrested for the same or within six months after an originall Writ sued out to recover the said debt and notice thereof given unto him or left in writing at his or their dwelling house or last place of abode or being arrested for debt shall after his or her arrest lie in prison two months or more upon that or any other arrest or detention in prison for debt or being arrested the sum of one hundred pounds or more of just debt or debts shall at any time after such arrest escape out of prison or procure his enlargement by putting in common or hired Bayl shall be accounted and adjudged a Bankrupt to all intents and purposes And in the said cases of arrest or lying in prison for such debt or debts or getting forth by common or hired Bayl from the time of his or her said first arrest And be it further enacted by the authority of this present Parliament that the like Commissions Orders Benefits and Remedies which are and be provided and limited by the said former Acts of Parliaments made in the thirteenth year of the late Queen Elizabeth and in the first year of the Reign of our Sovereign Lord the Kings Majesty against any Bankrupts in them or either of them described or for or concerning his her or their Lands Tenements Hereditaments Fees Annuities Offices Goods Chattels Wares Merchandize and Debts or any of them shall and may be had pursued taken and expounded against such person and persons as are herein and hereby declared described or expressed to be Bankrupts and against his her and their Lands Tenements Hereditaments Fees Annuities Officers Goods Chattels Wares Merchandizes and Debts in such manner and form as the same ought and might have been if the persons herein declared described or expressed to be Bankrupts had been by the said Statutes or either of them described to be Bankrupts to all intents and purposes whatsoever And be it enacted by the authority aforesaid That the same orders benefits and remedies which are and be provided and limited by this present Act against any Bankrupts in or by this Act declared described or expressed to be Bankrupts or for or concerning his her or their Lands Tenements Hereditaments Fees Annuities Offices Goods Chattels Wares Merchandizes and Debts or any of them or the discovery of them or any of them shall from henceforth be had pursued taken and expounded against such person and persons as are declared or expressed to be Bankrupts by the said former Acts of Parliaments or either of them and against his her and their Lands Tenements Hereditaments Fees Annuities Offices Goods Chattels Wares Merchandizes and Debts in such manner and form as the same ought and might have been if the persons in the said former Statutes or either of them described to be Bankrupts had been mentioned and described to be Bankrupts in and by this present Act. And whereas by the former Laws the Commissioners appointed have power to examine the Bankrupt himself and such person or persons as are suspected to have or detain of the estate goods or chattels of the Bankrupts but some doubt hath been made whether the Commissioners have power to examine the wives of the Bankrupts touching the same by reason whereof the Bankrupts wives do daily conceal and convey away and cause to be conveyed away much part of their husbands moneys wares goods merchandize and other estate to person or persons unknown to any but such wives by reason whereof much of the Bankrupts estate is concealed and detained from the Creditors For clearing therefore the said doubt and avoiding the inconveniences aforesaid Be it declared and enacted by the authority aforesaid That after such time as any person shall by the said Commissioners executing the said Commission or the greater part of them be lawfully adjudged or declared to be a Bankrupt the said Commissioners executing such commission shall have power and authority to examine upon oath the wife and wives of all and every such Bankrupt for the finding out and discovery of the estate and estates goods chattels of such Bankrupt or Bankrupts concealed kept or disposed of by such wife or wives in their own person or persons or by their own act or means or by any other person or persons And that shee and they the said wife and wives shall incur such danger and penalty for not coming before the said Commissioners or for refusing to be sworn and examined or for not disclosing the truth upon her or their examination or examinations as in and by the said former Laws or either of them is already made and provided against any other person or persons in like cases And be it further euacted by the authority aforesaid That if any Bankrupt shall upon his or her examination or examinations to be taken before the said Commissioners executing the said Commission be found fraudulently or deceitfully to have conveyed away his or her Goods Chattels Lands Tenements Offices Fees Rents or Annuities or other Estate or any part thereof to the value of twenty pounds or above to the end and purpose to hinder the execution of this Statute or of any other the aforesaid Statutes or thereby to defraud delay or hinder his or her Creditors of the same and shall not upon his or her examination discover unto the said Commissioners and if it lie in his or her power deliver unto the said Commissioners all that estate Goods and Chattels so fraudulently and deceitfully conveyed away as aforesaid or by him or her his or her means kept or detained from the said Commissioners or that cannot make it appear unto the said Commissioners that he or she hath sustained some casual loss whereby he or she is disabled to pay what he or she then owed shall or may be indicted for such fraud or abuse at the Assises or general Sessions to be holden before the Iudges of Assise or Iustices of the Peace of the County or place where he or she shall become Bankrupt And if upon such Indictment or Indictments the Bankrupt be thereof
whom obtained the Lord Chancellor of England or Lord Keeper of the Great Seal for the time being upon every complaint made unto him in writing against any such person or persons being Bankrupt shall have full power and authority by Commission under the Great Seal to name and appoint such honest and discreet persons as to him shall seem meet c. 13 Eliz. cap. 7. Secondly by whom to be obtained by the Creditors Thirdly when to be obtained it must be within five years after that the party shall become a Bankrupt or else it is not to prejudice purchasers 21 Jac. chap 19. the words of the Statute are Provided that no purchaser for good and valuable consideration shall be impeached by vertue of this Act or any other Act against Bankrupts unless the Commission to prove him or her a Bankrupt he sued forth against such Bankrupts within five years after he or she shall become a Bankrupt ibid. Family The duration of the Commission it is not determined by the Bankrupts death for bâ— 1 Jac. cap. 15. it is thus enacted Provided always and be it enacted that 〈◊〉 after any Commission of Bankrupts hereafter sued forth and dealt in by the Commissioners the offendor happen to die before the Commissioners shall distribute the Goods Lands and Debts of the offendors or any of them by force of the aforesaid Statute of 13 Eliz. and this Statute or either of them That then nevertheless the said Commissioners shall and may in that case proceed to execution in and upon the said Commission for and concerning the offendors goods lands tenements hereditaments and debts in such sort as they might have done if the party offendor were living 1 Jac. 15. 37. If such or such number of the Commissioners die so that the rest cannot proceed and thereupon a new Commission be granted to other Commissioners they may call the surviving Commissioner or Commissioners before them to give accompt for such part of the Bankrupts estate whereof the old Commissioners made no distribution as persons who have the Estate of the Bankrupts in their hands Stones Lecture fol. 19. and 187. 38. Secondly Note the authority given the Commissioners so commissionated as aforesaid by several Acts of Parliament First as touching the Bankrupt himself Secondly as touching his Estate 39. First as to the Bankrupt himself To cause the Bankrupt to appear by the Statute of 13 El. chap. 7. it is thus set forth And be it enacted that if any such person or persons which is or shall be indebted do of purpose withdraw him or themselves out of or from his or their usual mansion house or houses that then upon complaint thereof made to the said Commissioners the same Commissioners or the more part of them shall by vertuâ— and authority of this presâ—nt Aâ—â— have full power and authority to awaâ—â— five Proclamations to be made in the Proclamations Queens Name upon five sundry Market-days in such places near the place when such Bankrupt hath most commonly dâ—elled or made his abode commanding hiâ— or them by the said Proclamations in the Queens name to return with all convenient speed and to yield his or their Body before the said Commissioners or one of them at such time and place as by the said Proclamation shall be appointed and if the said Person or persons do not according to such Proclamation repair and yield his or their body as aforesaid thaâ— then the body of all and every such offendor or offendors shall be judged taken and deemed to all intents and purposes out of the Queens Protection And that every person and persons that shall willingly or wittingly receive dâ—tain or keep secretly any person or persons so demanded by Proclamation as is aforesaid shall suffer such pain of imprisonment of his or their bodies or pay such Fine to our Soveraign Lady the Queens Majesty her heirs and Successors as the said Lord Chancellor or Lord Keeper of the Great Seal being informed thereof by the Commissioners so to be appointed as is afore said or the more part of them shall seem meet and convenient for their said offence or offences 13 Eliz. chap. 7. 40. And by the Statute of 1 Jac. Warninâ— left in writing chap. 15. The said Commissioners may call before them or the greater part of them the said Bankrupt and it upon lawful warning left in writing at three several times at the dwelling place or house where the said Bankrupt his wife or family for the most part of his abode did lodge or remain within one year next before he she or they became Bankrupt the said Bankrupt shall not appear before the said Commissioners or the greater part of them that then and from â—henceforth it shall be lawful for the greater number of the said Commissioners to appoint to proclaim the said party a Bankrupt at such publick place Proclamation or places where the said Commissioners or the greater part of them shall â—hink meet warning him her or them to appear before them upon the said Commission at some time appointed And that if upon five several Proclamations made in some publick place the party offending appear not before the said Commissioners and yield his her or their bodies to them or some of theâ— the said Commissioners or greater parâ— of them shall or may award a warrant 〈◊〉 such fit person or persons as they shâ—â— think meet to apprehend the body aâ—â— bodies of the said offendor and offendors and to bring him her or themâ— offending before the said Commissionerâ— wheresoever the said party or parties 〈…〉 fending may be sound in places privâ—ledged or not to be examined by 〈◊〉 said Commissioners or the greater 〈◊〉 Breaking open houses c. to take the Bankrupts of them 1 Jac. chap. 15. 41. And by 21 Jac. chap. 19. Tâ— said Commissioners or the greater pâ—â— of them in execution of the said Coâ—mission or any other person or persoâ— by them to be deputed by their warrâ— or warrants under their hands or seâ— have power to break open the house 〈◊〉 houses Chambers Shops c. of the 〈◊〉 Bankrupt where the said Bankrupt 〈◊〉 his goods c. shall be and to seize upoâ— and order the person c. of such Barâ—rupt as by former Laws are appointeâ— c. 21 Jac. 19. And by 13 Eliz. châ— 7. The said Commissioners have power given them to take order by their discretion with the body of the Bankrupt wheresoever he or she may be had either in his or her houses Sanctuary or elsewhere c. Ibid. 42. Secondly Observe the power of the Commissioners as to the estate of the Bankrupt and therein take notice First of what estate Secondly the means for the discovery and obtaining of it Thirdly their disposal of it Of what Estate of the Bankrupts the Commissioners may dispose 43. First Of the Bankrupts real Real Estate Estate Lands tenements and hereditaments as well Copy-hold or Customary-hold as
notwithstanding by the Statute of limitations And it may be answered that he shall be barred for neither of the Statutes gives the Assignee any larger power c. than the original debtor had also the Statute of limitation was made for quieting of mens estates and avoiding of Suits which Statute shall not be taken away without special words 71. Such things as the Bankrupt Thin disposed of by the Bankrupt himself disposed to the satisfaction of some of the Creditors after that he became a Bankrupt for the Statute of 13 Eliz. chap. 7. is That the Commissioners must distribute to the Creditors share and share alike c. and that every such bargain sale c. shall be good and effectual against the offendors and all persons c. And if the debtor after that he becomes a Bankrupt may prefer one Creditor before another it would be unreasonable and a great defect in Law that after he hath utterly discredited himself by becoming a Bankrupt the Law should intrust him with the distribution of his Goods Cook lib. 2. 25. b. 26. a. Case of Bankrupts Now observe the means of discovery and obtaining of the Bankrupts Estate 72. It is enacted by 21 Jac. chap. 19. that the Commissioners in execution Break open Houses of their Commission or the greater part of them or any other person or persons officer or officers by them or the greater part of them to be deputed or appointed by their warrant or warrants under their hands and seals may break open the house or houses chambers shops ware-houses doors trunks or chests of the Bankrupt where the said Bankrupt or any of his goods or estate shall be or reputed to be and seize upon and order the Body goods chattels ready money and other estate of such Bankrupt as by former Laws are limited and appointed c. 21 Jac. cap. 19. 73. Next by examination and punishment Examination of persons by the Commissioners of persons 1. The Bankrupt himself they may compel him to come before them vide before Sect. 39. They have power to examine him upon oath upon such interrogatories touching his Lands Tenements goods chattels debts bills bonds books of accompt and such other things as may tend to disclose his or their estate or the secret grants conveyances and â—loyning of his her or their Lands Tenements goods money and debts as they shall think fit 1 Jac. chap. 15. 74. Then observe the Bankrupts punishment in case of his refractoriness or deceit first for his not appearance before the Commissioners vide before Sect. 39. Secondly in case he refuse to be examined or answer not fully to every interrogatory to him to be administred by the said Commissioners or the greater part of them it shall be lawful for the said Commissioners or the greater part of them to commit the said offendor or offendors to some streight or close imprisonment there to remain until he she or they shall better conform him or her self 1 Jac. chap. 15. 75. Thirdly For his perjury If Bankrupts perjury upon his her or their examination it shall appear that he or she or they have committed any wilful or corrupt perjury tending to the hurt or damage of thâ— Creditors of the said Bankrupt to the value of 10 lib. of lawful money of Enggland or above the party so offending shall or may be thereof indicted in any of the Kings Majesties Courts of Record and being lawfully convicted thereof shall stand upon the Pillory in some publick place by the space of two hours and have one of his Ears nailed to the Pillory and cut off 1 Jac. cap. 15. 76. Fourthly For the Bankrupts His fraud fraud And if any Bankrupt shall upon his or her examination to be taken before the said Commissioners executing the said Commission be found fraudulently or deceitfully to have conveyed away his or her goods chattels lands tenements offices c. or other estate or any part thereof to the value of 20 lib. or above to the end and purpose to hinder the execution of this Statute or of any other the aforesaid Statutes or thereby to defraud or delay or hinder his or her Creditors of the same and shall not upon his or her examination discover unto the said Commissioners and if it lie in his or her power deliver unto the said Commissioners all that estate goods and chattels so fraudulently and deceitfully conveyed away as aforesaid or by him or her his or her means kept or detained from the said Commissioners or that cannot make it appear unto the said Commissioners that he or she hath sustained some casual loss whereby he or she is disabled to pay what he or she then owed the offendor shall or may be indicted for such fraud or abuse at the Assizes or general Sessions to be holden before the Judges of Assize or Justices of Peace of the County or place where he or she shall become Bankrupt and if upon such Indictment or Indictments the Bankrupts be thereof convicted he or she so convicted shall be set in the Pillory in some publick place for the space of two hours and have one of his or her ears nayled to the Pillory and cut off 21 Jac. cap. 19. 77. Secondly By examination of Wife of the Bankrupt the Bankrupts wife After such time as any person shall by the said Commissioners executing the said Commission or the greater part of them be lawfully adjudged or declared to be a Bankrupt the said Commissioners executing such Commission shall have power and authority upon oath to examine the wife and wives of all and every such Bankrupts for the finding out and discovery of the estate and estates goods and chattels of such Bankrupt or Bankrupts concealed kept or disposed of by such wife or wives in their own persons or by their own act or means or by any other person or persons And that she and they the said wife and wives shall incur such danger and penalty for not coming before the said Commissioners or for refusing to be sworn or examined or for not disclosing of the truth upon her or their examination or examinations as in and by the former Laws or either of them is already made and provided against any other person or persons in like cases 21 Jac. chap. 19. 78. Thirdly By examination of Other persons other persons Any person known or suspected to have any of the Bankrupts estate debts c. Wherein note First the power of the Commissioners to bring them before them the Commissioners upon complaint made to them by any party grieved knowing supposing or suspecting any of the goods chattels wares Merchandizes or debts of such offendor or offendors to be in custody use occupying keeping or possession of any person or persons or any person or persons to be indebted to any such offendor or offendors and do make relation thereof to the said Commissioners so to be appointed or the more part of them That
THE Judges Resolutions Upon the Several Statutes Concerning BANKRUPTS WITH The like Resolutions on the Statutes of 13. Eliz. and 27. Eliz. touching fraudulent CONVEYANCES By GEORGE BILLINGHVRST of Grays-Inne Esq LONDON Printed for Henry Twyford in Vine-Court Middle-Temple 1676. I do allow the Printing of this Book Intituled The Judges Resolutions upon the Statute concerning Bankrupts 28th June 1676. FRA NORTH Gentle Reader THou hast here a methodical digestion of the several Statutes concerning Bankrupts presented to thy view together with such Expositions as have been made of the several parts of them by the Learned Judges of this Kingdom since they came forth And in regard the matter hereof may concern most men I thought it would not be unnecessary to be published For although there be a Reading in Print upon some of those Statures more full of abstruse Notions and Learning than this is yet I have some ground to believe that this will be thought for ordinary capacities and the generality of men much more useful I have also added hereunto the several Statutes of 13 El. and 27 El. touching fraudulent conveyances with the like Exposition of the Learned Judges on them in several cases annexed which may be likewise of use unto thee Farewel T. B. What a Bankrupt is and his Description 34. Hen. 8. Chap. 4. THe Lord Chancellor Treasurer c. shall take order with Bankrupts Bodies Lands and Goods for the payment of their Debts Al. 13 El. 7. 1 Jac. 15. 21 Jac. 19. 13 Eliz. Chap. 7. Who is a Bankrupt how and by whom his Body Lands and Goods shall be ordered for the payment of his Creditors FOrasmuch as notwithstanding the Statute made against Bankrupts in the xxxiiii year of the Reign of our late Sovereign Lord King Henry the eighth those kind of persons have and do still increase into great and excessive numbers and are like more to do if some better provision be not made for the repression of them And for a plain declaration to be made and set forth who is and ought to be taken and deemed for a Bankrupt Therefore be it enacted and established by the Authority of this present Parliament that if any Merchant or other person using or exercising the trade of Merchandize by way of Bargaining Exchange Rechange Bartry Chevisance or otherwise in gross or by retail or seeking his or her trade of living by buying and selling and being Subject born of this Realm or of any the Queens Dominions or Denizen sithence the first day of this present Parliament hath or at any time hereafter shall depart the Realm or begin to keep his or her House or Houses or otherwise to absent him or herself or take Sanctuary or suffer him or her self willingly to be arrested for any debt or other thing not grown or due for Money delivered Wares sold or any other just and lawful cause or good consideration or purposes hath or will suffer him or her self to be outlawd or yield him or her self to prison or depart from his or her dwelling House or Houses to the intent or purpose to defraud or hinder any of his or her Creditors being also a Subject born as is aforesaid of the just Debt or duty of such Creditor or Creditors shall be reputed deemed and taken for a Bankrupt And be it enacted by the Authority aforesaid That the Lord Chancellour of England or Lord Keeper of the great Seal of England for the time being upon every complaint made to him in writing against any such person or persons being Bankrupt as is before defined shall have full power and Authority by Commission under the great Seal of England to name assign and appoint such wise and honest discreet persons as to him shall seem good Who or the most part of them by vertue of this Act and of such Commission shall have full power and authority to take by their discretions such order and direction with the body and bodies of such person wheresoever he or she may be had either in his or her House or Houses Sanctuary or elsewhere as well by imprisonment of his or her body or bodies as also with all his or her Lands Tenements Hereditaments as well Copy or Customary-hold as Free-hold which he or shee shall 〈…〉 ve in his or her own right before he or she became Bankrupt and also with all such Lands Tenements and Hereditaments as such person shall have purchased or obtained for money or other recompence joyntly with his wife children or childe to the only use of such offender or offenders or of or for such use interest right or title as such offender or offenders then shall have in the same which he or she may lawfully depart withal or with any person or persons of trust to any secret use of such offender or offenders and also with his or her money goods chattels wares merchandises and debts wheresoever they may be found or known and cause the said Lands Tenements Fees Annuities Offices Goods Chattels Wares Merchandizes and Debts to be searched viewed rented and appraysed to the best value they may and by Deed indented enrolled in one of the Queens Majesties Courts of Record to make sale of the said Lands Tenements and Hereditaments and of all Deeds Writings and Evidences touching only the same belonging to such offender or offenders debtor or debtors and also of all Fees Annuities Offices Goods and Chattels or otherwise to order the same for true satisfaction and payment of the said Creditors that is to say To every of the said Creditors a portion rate and rate like according to the quantity of his or their debts and that every direction order bargain sale and other things done by the said persons so authorised as is aforesaid in form aforesaid shall be good and effectual in the Law to all intents constructions and purposes against the said offender or offenders debtor or debtors his or their wife or wives heir and heirs childe and children and such person and persons as by such joynt purchase with the said offender or offenders as is aforesaid have or shall have any estate or interest in the premisses and against all other person and persons claiming by from or under such offender or offenders debtor or debtors by any Act or Acts had made or done after any such person shall become Bankrupt as is aforesaid and also against the Lords of the Mannors whereof the said Copyhold or Customary lands been holden their heirs successors and assigns and every of them Provided always and be it enacted by the Authority aforesaid That all and every person or persons to whom any such sale of Copyhold or Customary Lands or Tenements shall be made shall before such time as they or any of them shall enter or take any profit of the same Lands or Tenements agree and compound with the Lords of the Mannors of whom the same shall be holden for such fines or incomes as heretofore have been most usual and accustomed
to be yielded or paid therefore and that upon every such agreement or composition the said Lords for the time being at the next Court to be holden at or for the said Mannors shall not only grant unto the said Vendee or Vendees upon request the same Copy or Customary Lands or Tenements by Copy of Court Roll of the same Mannors for such estate or interest as to them shall be sold and reserving the antient Rents Customes and Services but also in the same Court admit them Tenants of the same Copy or Customary Lands as other Copyholders of the same Mannors have been wont to be admitted and to receive their fealty accordingly Provided always and be it enacted by the Authority aforesaid That such of the said Commissioners as shall put the said Commission in execution shall upon lawful request to them made by the said Bankrupt not only make a true declaration to the same Bankrupts of the imploying and bestowing of their said Lands Tenements Offices fees Goods Chattels and debts so payed and satisfied to their said Creditors but also make payment of the overplus of the same if any such shall be to the said Bankrupts their Executors Administrators or Assigns And be it further enacted by the Authority aforesaid that if after any such act or offence committed and complaint thereof made to the said Commissioners so to be appointed as is aforesaid or the more part of them by any party grieved as is aforesaid concerning the premisses knowing supposing or suspecting any of the goods chattels wares merchandizes or debts of such offender or offenders debtor or debtors to be in custody use occupying keeping or possession of any person or persons or any person or persons to be indebted to any such offender or offenders do make relation thereof to the said Commissioners so to be appointed or the more part of them that then the said Commissioners or the most part of them shall by vertue hereof and of the said Commission have full power and authority to send for and call before them by such Process ways or means as they shall think convenient by their discretions all and every such person and persons so known suspected or supposed to have any such goods chattels wares merchandizes or debts in his or their custody use occupation keeping or possession or supposed or suspected to be indebted to such offender or offenders and upon their appearance to examine them and every of them as well by their Oaths as otherwise by such ways and means as the said Commissioners or the more part of them by their discretions shall think meet and convenient for and upon the specialty certainty true declaration and knowledge of all and singular such goods chattels wares merchandizes and debts of any such offender or offenders as be supposed or suspected to be in his or their custody use occupation or possession and all such debts as by them or any of them shall be supposed or suspected to be owing to any such offender or offenders And if any such person or persons upon such examination do not disclose and plainly declare and shew the whole truth of such things as he or they shall be examined of concerning the premisses to his knowledge or do deny to swear then every such person or persons so denying to swear or being examined do not declare the plain and whole truth concerning the premisses upon due proof thereof to be made before the said Commissioners or the more part of them so to be appointed as is aforesaid by witness examination or otherwise as to the said Commissioners or the more part of them shall seem sufficient in that behalf shall lose and forfeit double the value of all such goods chattels wares merchandizes debts by them or any of them so concealed and not wholly and plainly declared and shewed which forfeiture shall be levied by the said Commissioners or the more part of them of the Lands Tenements Hereditaments goods and chattels of such person so denying to swear or not disclosing the whole truth as is aforesaid by such ways and means and in such manner and form as is before limited and appointed for the principal offender or offenders debtor or debtors and the same forfeiture or forfeitures to be distributed or imployed to and for the satisfaction and payments of the debts of the said creditor or creditors in such like manner rate and form as is above declared concerning the ordering of the lands and tenements offices fees goods and chattels of such offender or offenders debtor or debtors as is aforesaid And â—e it further enacted That if at any time before or after that any such person or persons departeth the Realm or shall keep his or their House or Houses or otherwise absent him or themselves or take sanctuary or suffer him or themselves to be arrested outlawd or yield his or their bodies to prison as is aforesaid any person or persons do fraudulently by covin or collusion claim demand recover possess or detain any debts duties goods chattels lands or tenements by writing trust or otherwise which were or shall be due belonging or appertaining to any such offender or offenders other than such as he or they can and do prove to be due by right and conscience in form aforesaid for money payed wares delivered or other just consideration or cause reasonable to the just value thereof before the said Commissioners so to be appointed or the more part of them as is aforesaid and the same to proceed bona fide without fraud or coâ—vin that then every such person or persons so craftily demanding claiming having possessing or detaining any such debt duty or other thing as is aforesaid shall forfeit and lose double as much as he or they shall so claim demand detain or possess which said forfeiture shall â—e levied â—ecovered and imployed in manner and form as is afore rehearsed Provided also and be it enacted by Authority aforesaid that if it shall fortune the creditors of any such Bankrupt as is aforesaid to be satisfied and paid of their debts and duties of or with the proper lands tenements goods chattels and debts of the said Bankrupts or of or with the same and some part of the forfeitures of the said double values to be forfeited as is aforesaid and that there shall remain an overplus of the said forfeitures of the said double values that then the one moiety of the said overplus of the said forfeitures of the double values so remaining shall be by the said Commissioners so executing the said Commission within convenient time after the levying thereof paid unto the Queens Majesty her Heirs and Successors and the other moiety thereof shall be by the said Commissioners employed and distributed to and amongst the poor within the Hospitals in every City Town or County where any such Bankrupt shall happen to be Any thing in this Act to the contrary thereof not withstanding And be it further enacted by
whereas by the former Statute made in the said thirteenth year of the reign of the late Queen Elizabeth the Commissioners for Bankrupts have power given to them to send for such person or persons as the creditors shall know suppose or suspect to have detain or keep any part of the mony goods chattels or debts of the said offender or offenders or to be indebted to the said offender or offenders to be examined by the said Commissioners as by the same Statute appeareth but have not good means or remedy by imprisonment or other penalty to procure the person so sent for by them to appear before them nor having appeared before them to make answer upon his oath to such Interrogatories as shall be ministred unto him by the said Commissioners for and upon the specialty certainty true declaration and knowledge of such lands tenements hereditaments goods debts or other things of any such offender or offenders as be or shall be or which shall be suspected to be in his custody use or possession or in the custody use or possession of any other to his knowledge and of all debts owing to or for the benefit of such offender or offenders by himself or by any other to his knowledge so as many times a great part of the offender or offenders lands tenements hereditaments goods chattels or debts which by the true intent of the said Statute should be imployed to the satisfaction of the creditors of the offendor or offenders are concealed or detained in the hands of such person and persons as refuse to come or being come refuse to be sworn before the said Commissioners to be examined in that behalf to the great encouragement of all Bankrupts and their wicked confederates and accessaries and to the great hindrance of the just remedies of the creditors of the said Bankrupts for their true and just debts to them owing For remedy whereof be it further enacted by the authority aforesaid That if any person or persons being known supposed or suspected to have or detain any part of the lands tenements or hereditaments goods chattels or debts of the said Bankrupt or to be indebted to or for the benefit of the said Bankrupt shall after lawful warning to the said person or persons given to come before the said Commissioners or the greater part of them to be examined according to the intent of the said Statute refuse to come or shall not come before the said Commissioners at the time appointed having no lawful impediment such as shall be admitted and allowed of by the said Commissioners or the more part of them and which shall be then signified or made known to the said Commissioners at the time of their assembly Or that any such person or persons having knowledge or warning of any other assembly or meeting of the said Commissioners again shall not come and appear before them at such time as he or she lawfully may come having no such lawful impediment as shall be then made known to the said Commissioners and by them admitted and allowed of as aforesaid Or being come before them shall refuse to be sworn and to make answer to such Interrogatories as shall be ministred unto him or them according to the true intent and meaning of the said Statute made in the said thirteenth year of the reign of our said late Sovereign Lady Queen Elizabeth or of this present Act That then it shall be lawful for the said Commissioners or for the greater part of them to commit to such Ward and Prison as to them or to the greater part of them shall be thought meet all such person and persons as shall so refuse to be sworn and make answer to such Interrogatories as shall be so ministred as aforesaid and also to direct their Warrants to such person or persons as to them or the greater part of them shall be thought meet to apprehend and arrest such person or persons as shall refuse to appear before them as aforesaid and to bring him her or them before the said Commissioners or the greater part of them to be examined as above-said and upon his her or their refusal to come or to be examined before the said Commissioners as aforesaid to commit the said party so refusing to such prisons as the said Commissioners or the greater part of them shall think meet there to remain without bail or mainprise until such time as the said person so refusing to come or to be sworn to answer before the said Commissioners shall submit him or her self to the said Commissioners and be by them examined according to the true intent of the said Statute â— and of this present Act. Provided alwayes that such Witnesses as shall so be sent for shall have such costs and charges as the Commissioners in their discretion shall think fit The same charges to be ratably born by the Creditors of the said Bankrupt according to the proportion of each of their several debts And if any person oâ— persons other than the Bankrupt either by subornation unlawful procurement sinister perswasion or means of any others or by his own act consent or agreement shall wilfully and corruptly commit any manner of wilfull peâ—jury by his deposition to be taken before the said Commissioners or the greater part of them as aforesaid That then the party or parties so offending and all and every person and persons that shall unlawfully and corruptly procure any such unlawful wilful and corrupt perjury shall or may therefore be indicted in any of the Kings Majesties Courts of Record and after his or their conviction thereof shall incur such forfeiture and receive and suffer such pains and punishment as are limited by the Statute made concerning Perjury in the fifth year of the Reign of our said late Sovereign Lady Queen Elizabeth And be it further enacted That all and every sum and sums of money which shall be forfeited by force of this present Act shall be sued for and recovered by the said creditors only or any of them that will sue for the same by Action of Debt Bill Plaint or Information in any of the Kings Majesties Courts of Record and the sum or sums of money so recovered the charges of suit being deducted shall be distributed and divided towards the payment of the said creditors of the Bankrupt And for that the power authority given to the Commissioners of Bankrupts touching the debts due to the said Bankrupts is not so full and perfect as that the full benefit thereof in due course might be imployed to the use of the said Creditors as was intended For remedie thereof Be it further enacted by the Authority aforesaid That the Commissioners of Bankrupts or the greater part of them all have power to grant and assign or otherwise to order or dispose all or any of the debts due to and for the benefit of the said Bankrupt by what person or persons soever or in what manner and form soever to the
use of the creditors of the said Bankrupt according to the true intent of the said former recited Statute of Bankrupts And that the same Grant Assignment or disposition of the said debts in form aforesaid to be made by the said Commissioners or the greater part of them shall so vest the property right and interest of the said debt and debts in the person or persons of him her or them to whom it shall be granted assigned or ordered by the said Commissioners or the greater part of them as fully to all intents and purposes as if the said Bill Bond Bonds Statutes Recognizances Iudgment or Contract whereupon the said Debt or Debts Deed or Deeds shall arise or grow had been made to or with or for the said person or persons to whom the same shall be so granted assigned or disposed by the said Commissioners and that after such Grant Assignment or Disposition made of the said Debts that neither the Bankrupt nor any other to whom any such Debt shall be due shall have power to recover the same nor to make any release or discharge thereof neither shall the same be attached as the Debt of the Bankrupt or such said other person or persons to whom the same shall be due by any other person or persons according to the Custome of the City of London or otherwise But that the party or parties to whome the same Debts shall be assigned shall have like remedy to recover the same as fully and lawfully in the name or names of the person or persons to whom the same shall be so granted assigned or ordered by the said Commissioners in all respects and purposes as the party himself might have had any Law Statute Vse Custome to the contrary thereof in any wise notwithstanding Provided always that no debtor of the Bankrupt be hereby endangered for the payment of his other debts truly and bona fide to any such Bankrupt before such time as he shall understand or know that he is become a Bankrupt Provided also and be it further enacted That such of the said Commissioners as shall put the said Commission in Execution shall upon lawful request to them made by the said Bankrupt not only make a true declaration to the said Bankrupts of the imploying and bestowing of his her or their said lands tenements and hereditaments offices fees goods wares mony chattels and debts which shall be paid and satisfied to their said Creditors as is in like case limited and appointed by the said former Statute made in the said thirteenth year of the said late Queens Majesties reign but also make payment of the overplus of the same if any such shall be to the said Bankrupts their executors administrators and assigns and that the said Bankrupts after the full satisfaction of the said creditors shall have full power and authority to recover and receive the residue and remainder of the debts to them owing Any thing in this Act contained to the contrary in any wise notwithstanding Be it further enacted That if any Action of Trespass or other suit shall happen hereafter to be brought against any Commissioner authorized by the Statute made in decimo tertio of our late Sovereign Lady Queen Elizabeth for Bankrupts or any other person or persons having authority by vertue or under the Commission authorising the said Commissioner for the doing or executing of any matter by force of the said Statute or this present Statute That the defendant or defendants in any such action or suit may plead Not guilty or otherwise justifie that the Act or thing whereof the plaintiff or plaintiffs complained was done by Authority of the said Act made in the thirteenth of Elizabeth or in this present act respectively without expressing or rehearsal of any other matter or circumstance contained in either of the said Acts and without inforcing him or them to shew forth their Commission authorizing the said Act or thing whereunto the Plaintiff shall be admitted to reply that the Defendant did the Fact supposed in the Declaration of his own wrong without any such cause alledged by the said Defendant whereupon the issue in such action shall be joyned to be tried by verdict of twelve men and upon trial of that issue the whole matter to be given on both parties in evidence according to the very truth of the same And if verdict upon such issue shâ—ll pass for the defendant the defendant to have his costs Provided always and be it further enacted That after any Commission of Bankrupts hereafter sued forth and dealt in by the Commissioners if the offendor happen to die beâ—ore the Commissioners shall distribute the Goods Lands and Debts of the offendors or any of them by force of the foresaid Statute of the thirteenth year of the Reign of our late Sovereign Lady Queen Elizabeth and this Statute or either of them That then nevertheless the said Commissioners shall and may in that case proceed in execution in and upon the said Commission for and concerning the offenders Goods Lands Tenemâ—nts Hereditaments and Debts in such sort as they might have done if the party Offenders were living Stat. 21 Jac. 19. 21 Jac. Chap. 19. A further description of a Bankrupt The Staâ—utes of 13 Eliz. 7. and 1 Jac. 15 enlarged FOr as much as daily experience sheweth that the number and multitude of Bankrupts do increase more and more and also the frauds and deceits invented and practised for the avoiding and deluding the penalties of the good Laws in that behalf already made and the remedy by them provided And for that divers defects are daily found in the former Statutes made against Bankrupts doth in the description of a Bankrupt as also in the power given to the Commissioners for the discovery and distributing the Bankrupts estate to the great incouragement of evil minded persons the hindrance of traffique and commerce the great decay overthrow and undoing of many Clothiers by whom many thousands of the natural born Subjects of this Realm be from time to time in all parts of this Kingdom set on work all which do tend to the general hurt of this Realm For remedy whereof be it enacted by the Kings most excellent Majesty the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the Authority of the same That all and singular the aforesaid Statutes and Laws heretofore made against Bankrupts and for relief of Creditors shall be in all things largely and beneficially construed and expounded for the ayd help and relief of the Creditors of such person or persons as already be or hereafter shall become Bankrupt And that all and every person and persons using or that shall use the trade of Merchandize by way of bargaining exchange bartering chevisance or otherwise in gross or by retail or seeking his or her living by buying and selling or that shall use the trade or profession of a Scrivener receiving other mens moneys or estates into his trust or
the Law will not trust him with the distribution of his Goods vide Coke lib. 2. 26. a. Case of Bankrupts 29. Secondly more Particularly In particular the Bankrupts are to be proceeded against by Persons immediately authorized by Act of Parliament or mediately Touching the Bankrupts Person the persons immediately authorized are set forth by 34 H. 8. cap. 4. to be the Lord Chancellor or Lord Keeper for the time being Lord President Lord Privy-Seal oâ— other of the Kings most Honourable Privy-Counsel and the Chief Justice of either Bench for the time being or three of them at the least whereof the Lord Chancellor or Keeper of the Great Seal Lord Treasurer Lord President or the Lord Privy-Seal to be one who upon every complaint made to them in writing by any parties grieved shall have power and authority by vertue of the said Act to take by their wisdom and discretion such orders and directions as well with the bodies of the said offendors wheresoever they may be had as well in their houses as else where by imprisonment of their Bodies or otherwise as also with their Lands Tenements c. which they have in Fee-simple Fee-tail for term of life term of years or in the right of their wives as much as the interest Right and Title of the same offenders shall extend to or be and may then lawfully be departed with by the said offendors and also with their moneys goods chattels wares merchandises and debts wheresoever they may be found or known c. 34 H. 8. cap. 4. 30. So that the power given by the said Statute relates either to the person or estate of the Bankrupt First as to his person viz. If the offender doth withdraw out of the Kings Dominions to defraud his Creditors upon complaint thereof made in writing to the said Lords having authority as aforesaid they shall by vertue of the said Act have power to award Proclamations to be made in such places as to them shall be thought meet and convenient commanding by the same such offendor in the Kings name to return with all convenient speed into this Realm and to yield his body before the said Lords or one of them And if the said person within three months after he shall have notice of such Proclamation or so soon after as he conveniently may do not repair and yield his body as aforesaid That then the body of all and every such offender and offenders shall be adjudged taken and deemed to all intents and purposes out of the Kings protection and his Goods Chattels Lands Tenements and Debts shall be by the order and discretion of the said Lords employed and distributed amongst the offenders Creditors equally c. 34 H. 8. cap 4. 31. Secondly Touching the offendors Touching the Bankrupts estate estate observe more particularly first the power given to the Lords by 34. H. 8. for the discovering and obtaining of it Secondly for their disposal and ordering of it 32. First for the discovery and The discovery of it obtaining of it The effect of that Statute is That if after any such Act or offence committed and complaint thereof made to the Lords as aforesaid by any party grieved concerning the premises who knowing or suspecting any of the goods chattels wares merchandizes or debts of such offendors to be in the custody use or possession of any person or persons or any person or persons to be indebted to any such offendor or offendors do make relation thereof to the said Lords then they are impowred by the said Statute to send for and convent before them such person or persons so known or supposed to have any such goods wares c. in their custody or to be indebted to the offendor or offendors and upon their appearance to examine them and every of them as well by their Oaths as otherwise for and upon the specialty certainty true declaration and knowledg of all and singular such goods wares debts c. as be suspected to be in his or their custody use c. And if the person so examined do not plainly disclose the whole truth of such things whereof he shall be examined touching the premises then every such person or persons so examined and not declaring the plain and whole truth upon such proof thereof made before the said Lords as they shall judge sufficient in that behalf shall lose and forfeit double the value of all such goods wares c. so concealed to be levied by the said Lords by such ways and means as they shall think fit the same to be distributed to the Creditors in such manner as the Bankrupts Estate 34 H. 8. cap. 4. 33. And that if any person or persons do fraudulently by covin or collusion demand any debt or other thing by writing or otherwise of such offendor or offendors other than such as he or they can and do prove to be justly due before the said Lords that then every such person or persons so crastily demanding any such debt c. shall forfeit the double of what he shall so claim c. to be levied and imployed as aforesaid 34. So if the Bankrupt after he shall do those acts whereby he is declared Bankrupt shall suffer fraudulent recoveries against him of any debts goods c. upon complaint thereof to them made the Lords are impowred to convent before them the Recoverers and after such fraud discovered the said goods c. so recovered shall be chargeable to the Bankrupts debts and be disposed of to the Creditors notwithstanding such Recovery 34 Hen. 8. cap. 4. 35. Secondly Observe the power Disposal of the Bankrupts estate given by that Statute to the Lords for disposing and ordering of the Bankrupts Estate First they have power to cause the Bankrupts Lands Tenements Fees Offices Annuities Goods and Chattels Debts c. to be viewed rented and appraised Secondly To make a sale of the said Lands c. or otherwise to order the same for the true satisfaction and payment of the said Creditors rate and rate like according to the quantity of their debts Thirdly And that every direction order bargain sale and other things done by the said Lords as aforesaid in wâ—iting signed with their hands shall be good and effectual in the Law to all intents c. against the offenders their heirs and executors for ever as if done and executed by the offendors themselves 34 Hen. 8. chap. 4. Which Statute of 34 H. 8. although it be now out of use yet in regard I do not find itactually repealed I suppose it will not bethought altogether superfluous to be taken notice of The proceedings against and punishment of the Bankrupt by persons mediately authorised by Parliament 36. The next things considerable are the proceedings against and punishment of the Bankrupt by Commissioners Commissioners Their Commission or persons mediately authorized by Parliament wherein take notice First of their Commission and therein observe first from
then the said Commissioners or the more part of them shall have full power and authority to send for and call before them by such process ways and means as they shall think convenient all and every such person or persons so known or suspected to have any such goods chattels wares c. in his or their custody use occupation keeping or possession or supposed or suspected to be indebted to such offendor or offendors And secondly to examine them upon their appearance the Commissioners may examine them and every of them as well by their oaths as otherwise by such means as the said Commissioners or the more part of them shall think fit for and upon the specialty certainty and true declaration and knowledge of all and singular such goods chattels wares merchandizes and debts of any such offendor or offendors as be supposed or suspected to be owing to any such offendor or offendors 13 Eliz. chap. 7. 79. And in the next and third Refusing to come before the Commissioners place take notice of the punishment of such other persons first for their refusing to come before the Commissioners or to be sworn and make answer And by the Statute of 1 Jac. chap. 15. It is set forth that no good means was appointed by 13 Eliz. either by imprisonment or other penalty to procure persons to be suspected to have any part of the money goods chattels or debts of the said offendors or to be indebted to them to come before the Commissioners or to be examined by them c. and then enacts That if any person or persons being known supposed or suspected to have or detain any part of the lands tenements or hereditaments goods chattels or debts of the said Bankrupt or to be indebted to or for the benefit of the said Bankrupt shall after lawful warning to the said person or persons given to come before the said Commissioners or the greater part of them to be examined refuse to come or shall not come before the said Commissioners at the time appointed having no lawful impediment such as shall be allowed by the said Commissioners or the greater part of them or that any such person or persons having knowledge or warning of any other assembly or meeting of the said Commissioners shall not come and appear before them at such time as he or she may lawfully come having no such lawful impediment as shall be then made known to the said Commissioners and by them admitted and allowed Refusing to be sworn and answer as aforesaid Or being come before them shall refuse to be sworn and to make answer to such interrogatories as shall be ministred to him or them according to the true intent and meaning of the said Statute of 13 Eliz. or of this Act That then it shall be lawful for the said Commissioners or the greater part of them to commit to such ward or prisons as to them or the greater part of them shall be thought meet all such Their punishment person and persons as so refuse to be sworn and make answer to such Interrogatories as shall be so administred as aforesaid 1 Jac. 15. 80. And also to direct their warrants to such person or persons as to them or the greater part of them shall be thought meet to apprehend and arrest such person and persons as shall refuse to appear before them as aforesaid and to bring him her or them before the said Commissioners or the greater part of them to be examined as aforesaid and upon their refusal to commit them to such Prisons as the Commissioners shall think meet there to remain without Bail or Mainprise until their submission to the Commissioners to be examined c. 2 Jac. cap. 15. 81. But by 13 Eliz. cap. 7. in case any such person or persons upon examination do not discover the truth touching the said things whereof they are examined by the Commissioners as aforesaid or do deny to swear he is to forfeit double the value of the thing concealed vid. apres forfeiture which doubtless is not taken away by 1 Jac. cap. 15. but the imprisonment is thereby added as a further penalty and to force the parties suspected to have any of the Bankrupts Estate to come before the Commissioners and make a discovery Also it may be observed that the Statute of 13 Eliz. mentioneth only the concealing of the personal Estate but 1 Jac. cap. 15. Extends to Lands Tenements c. as before that are so with-held or conceal'd 82. Thirdly For their Perjury Their Perjury 1 Jac. cap. 15. If any person or persons other than the Bankrupt either by subornation unlawful procurement sinister perswasion or means of any others or by his own act consent or agreement shall wilfully and corruptly commit any manner of wilful Perjury by his deposition to be taken before the said Commissioners or the greater part of them as aforesaid That then the party or parties so offending and all and every person and persons that shall unlawfully and corruptly procure any such unlawful wilful and corrupt Perjury shall or may therefore be indicted in any of the Kings Majesties Courts of Record and after his or their conviction thereof shall inour such forfeiture and receive and suffer such pains and punishment as are limited by the Statute made concerning Perjury viz. 5 El. cap. 9. Now the punishment appointed for Perjury by that Statute is That the person committing Perjury shall forfeit 20 l. and endure half a years imprisonment without Bail or Mainprise and his Oath never after to be received c. And if he hath no Goods or Lands of that value then he is to be set in the Pillory in some Market-Town and to have both his ears nailed and to be disabled to be a Witness in any Court of Record vid. 5 Eliz. cap. 9. and by the same Stat. of 5 Eliz. the Procurers of Perjury are to forfeit 40 l. and if they have no Estate of that value then to suffer half a years imprisonment without Bail or Mainprise and to stand in the Pillory by the space of an hour and in some Market-Town next adjoyning to the place where the offence was done and never after to be admitted to be a Witness in any Court of Record 83. Fourthly Concealing of the Concealing the Bankrupts Estate Bankrupts Estate Any person being known or suspected to have any Goods Chattels c. of the Bankrupts or to be indebted to him if he doth not upon examination disclose and plainly declare his knowledge concerning the Premises or doth deny to swear Then every such person upon due proof thereof before the Commissioners by Witness Examination or otherwise as they shall think fit shall lose and forfeit double the value of such Goods Chattels Debts c. by them or any of them so concealed 13 Eliz. cap. 7. 84. Fraud If any person or persons Fraud do fraudulently by covin or collusion claim demand recover possess or detain
every such person or persons whatsoever whom the said Bankrupt by common Recovery or other way or means might cut off or debar from any remainder reversion rent profit title or possibility into or out of any of the said Mannors Lands Tenements or hereditaments 21 Jac. chap. 19. 114. Thirdly as to the Copy holds Copy-hold the sale and dispositon of them shall be good against the Bankrupts to all intents and purposes and against his or their wife or wives heir and heirs in like manner as before for his other estate Sect. 45. for there is no distinct clause for the Copy-holds viz. And also against the Lords of the Mannors whereof the said Customary or Copy-hold Lands been holden their Heirs Successors and Assigns and every of them and there is a Proviso added That the Vendees of such Copy-holds shall compound for their Fines with the Lords before entry vide Sect. 93. before 115. The sale of the Commissioners doth vest the Copy-hold estate so in the Vendee before admittance that the said Bankrupt cannot be said to be Tenant and therefore if he dle before admittance his wise shall not have any Customary estate which by the custom she ought to have when her husband dies Tenant the Vendee is only excluded by the Statute from entry or taking of the profits before composition made with the Lord which is only for the Lords benefit and not the Copy-holders also it was held that after composition for the time and the admittance of the Vendee it shall relate to devest all Customary estates happening since the sale and before the said composition and admittance Crook part 3. 568 569. Parker vers Edith Bleek 116. If two Joynt-tenants be of Copy-hold â—ands in Fee and the one out of Court according to the custom surrender his part to the Lords hands according to the custom to the use of his last will and by his will deviseth a part to a stranger in fee and dieth and at the next Court the surrender is presented by the surrender and presentment the Joynture was severed and the Devisee ought to be admitted to the moiety of the Lands for now by relation the state of the Land was bound by the surrender Cook sur Litt. 596. 117. As to the debts due to the Debts due to the Bankrupt Bankrupt The Commissioners have power to grant assign or otherwise to order and dispose all or any debts due or to be due to or for the benefit of the Bankrupt by any person or persons whatsoever or in what form soever to the use of the Bankrupts Creditors according to 13 Eliz. chap. 7. And that the same grant assignment or disposition of the said debts shall so vest the property right and interest of the said debt and debts in the person or persons to whom the same shall be so granted assigned c. as fully to all intents and purposes as if the Bonds Bills Statutes Judgments or contracts whereupon such debt or debts did arise or grow had been made to or with the person or persons to whom the same shall be so assigned And that after such grant assignment or disposition made of the said debts neither the Bankrupt nor any other to whom any such debt shall be due shall have power to recover the same nor to make any release or discharge thereof neither shall the same be attached as the debt of the Bankrupt or such said other person or persons to whom the same shall be due by any other person or persons according to the custom of the City of London or otherwise But that the party or parties to whom the said debt shall be assigned shall have like remedy to recover the same as fully and lawfully in the name or names of the person or persons to whom the same shall be so granted assigned or ordered by the said Commissioners in all respects and purposes as the party himself might have had 1 Jac. chap. 15. Provided always that no debtor of the Bankrupt be hereby indangered for the payment of his or their Debt truly and bona fide to any such Bankrupt before such time as he shall understand or know that he is become a Bankrupt 1 Jac. chap. 15. 118. To give means of Recovery As to the debts of the Bankrupt assigned by the Commissioners the assignee shall have the like remedy to recover the same as fully and lawfully as the party himself 1 Jac. chap. 15. 119. The Assignees of the said debts may sue for them in their own names because they are debts transferred by Parliament but yet notwithstanding in case the action of debt arise upon a Contract the Defendant may wage his Law for although the Parliament transferred the debt yet it is no debt upon Record Croke part 2. 105. Bradshaws Case A debt due by bond assigned to two Creditors severally they may sue severally for it Godbolts Reports fol. 195. 120. As to Lands c. of the Lands extended Bankrupt extended by any pretended debt or accomptant to the King after such time as the Bankrupt becomes a Bankrupt such person or persons to whom the Commissioners or major part shall bargain sell grant or assign the said Lands c. shall have good remedy to demand and recover the same against such persons as detain the same 21 Jac. chap. 19. 121. As to Lands Tenements c. of the Bankrupts conveyed away upon condition the Commissioners have power to appoint one or more to perform the condition vide devant Sect. 51. Creditor barren 122. Another effect of the Commissioners distribution is to bar the Creditor if any Creditor of the Bankrupts shall not be fully satisfied or otherwise contented by such means as the Statute appointeth they may have their remedy against the Bankrupt as before they had for the remainder and shall be only barred for so much as they are satisfied or contented for and no more 13 El. cap. 7. 123. Lastly to restore the capacity Capacity of Bankrupts of the Bankrupt The Bankrupt to have the overplus of his estate if any be after that the Creditors are satisfied And that the said Bankrupts after the full satisfaction of the said Creditors shall have power and authority to recover receive the residue and remainder of the Debts to them owing 1 Jac. chap. 15. 124. Next observe the accompt of Recompt the Commissioners to the Bankrupt such of the said Commissioners as shall put the said Commission in execution shall upon lawful request to them made by the Bankrupt not only make a true declaration to the said Bankrupts of imploying and bestowing of their said Lands Tenements offices Fees goods chattels and debts so payed and satisfied to their said Creditors but also make payment of the overplus of the same if any such be to the said Bankrupts their executors administrators or assigns 13 Eliz. chap. 7. 125. Remedy for the Commissioners in any action brought against them for acting by
86. allowance to them of charges Sect. 87. as to the goods by breaking open locks c. for them Sect. 72. 3. The disposal of it 1. By appraisement Sect. 88 c. 2. By sale Sect. 89 c. 3. By Ditribution to whom 89 90. of what 90 91 92 93 94 95 96 97 98. the time when not until 4 months c. Sect. 105 108. the manner Rate and Rate like Sect. 109. the effect of it to barr Sect. 112. to vest the property Sect. 113. to give means of Recovery Sect. 112. to restore to the Bankrupt his capacity Sect. 123. 3. Their accompt 4. Their remedy if sued CHARLES the Second by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To our trusty well beloved A. B. of E. in the County of D. Gent. S. M. of H. in the County of W. Esq Greeting Whereas we are informed that R. D. of L. in the City of London Merchant using and exercising the Trade of Merchandise by way of Bargaining Exchange Bartering and Chevisance seeking his Trade of living by buying and selling did become Bankrupt within the several Statutes made against Bankrupts to the intent to defraud and hinder T. B. of A. in the County of D. Gent. and W. P. of C. in the County of E. Esq and others his Creditors of their just Debts and Duties to them due and owing We minding the due execution as well of the Statute touching Orders for Bankrupts in the Parliament begun and holden at Westminster the second day of April in the thirteenth year of the Reign of our dear Sister Elizabeth late Queen of England made and provided As of the Statute made in the Parliament begun and holden at Westminster aforesaid the nineteenth day of March in the first year of the Reign of our late dear Grandfather King James of England France and Ireland and of Scotland the seven and thirtieth Intituled An Act for the better relief of Creditors against such as shall become Bankrupt And also of the Statute made in the Parliament begun holden at Westminster aforesaid the 19th day of February in the twenty first year of the Reign of our said late dear Grandfather K. James of England France and Ireland and of Scotland the seven and fiftieth Intituled An Act for the further description of a Bankrupt and relief of Creditors against such as shall become Bankrupt upon trust of the wisdoms fidelities diligence and provident circumspection which we have conceived in you do by these presents name assign appoint constitute and ordain you our special Commissioners giving full power and authority unto you four or three of you whereof you the said A. B. to be one according to the same Statutes and every or any of them not only concerning the said Bankrupt his body Lands Tenements Free-hold Customary Goods Debts other things whatsoever but also concerning all other persons which by concealment claim or otherwise do or shall offend touching the premises or any part thereof contrary to the true intent and meaning of the same Statutes or any of them to do and execute all and every thing things whatsoever as well for and towards satisfaction and payment of the said Creditors as towards and for all other intents and purposes according to the Ordinances and provision of the said Statutes Willing and commanding you four or three of you whereof you the said A. B. to be one to proceed to the execution and accomplishment of this our Commission according to the true intent and meaning of the same Statutes with all diligence and effect as our special trust is in you Witness Our self at Westminster the c. What a Bankrupt is and his Description 1. FIrst in General the word His Name Bankrupt is derived of the French word Banqueroutte which signifieth a breaking or becoming a Bankrupt and Banquerouttier signifieth a Bankrupt and faire Banqueroute is as much as solum vertere with the Romans the composition of the French word is from Banque which is as much as Mensa in Latine and route which is the same with Vestigium taken for a sign or mark left in the place from whence a Table had been removed in the same sence as we in English say a Cartroutte viz. the remaining impression of a Cart-wheel The Original seemeth to be taken from the Roman Mensarii who had their Tabernas and Mensas Tabernae being taken for Shops so called a tabulis quibus claâ—debantur and these were seated in publick places from which when they were disposed to slip away and delude their Creditors they left only of these Shops some Vestigia or signs behind them Vide Cowel Minshaw verbo Bankrupt 2. In the Statute of 34 H. 8. cap. His description 4. a Bankrupt is thus described viz. Whereas divers and sundry persons craftily obtaining into their hands great substance of other mens goods do suddenly flie into parts unknown or keep their Houses not minding to pay or restore unto any of their Creditors their Debts and Duties but at their own wills and pleasures consume the substance obtained by credit of other men for their own pleasures and delicate living against all equity and good Conscience 3. Now more particularly A Bankrupt is set forth and described in the several Statutes made against Bankrupts First by his Quality and Occupation Secondly by his Demeanour and Carriage 4. For the first as to his Quality His Quality and Occupation he is thus described by 13 El. chap. 7. and 1 Jac. chap. 15. If any Merchant or other person using or exercising the trade of Merchandizing by way of Bargaining Exchange Rechange Bartry Chevisance or otherwise in gross or by retail or seeking his or their Trade of living by buying and selling Subjects and being a Subject born of this Realm or of any the Queens Dominions or Denizen c. Which Statute as appears extends only to Subjects born or Denizens but the Statute of 21 Jac. cap. 19. extends likewise to strangers at the later end of which Statute there is this Proviso viz. Provided further and be it enacted c. that this Act and all other Acts of Parliament heretofore made against Bankrupts shall extend to Strangers born as well aliens as Denizens Strangers as effectually as to the natural born Subjects both to make them subject to the Laws as Bankrupts as also to make them capable of the benefit or contribution as Creditors by those Laws 5. A Shoo-maker may be a Bankrupt Shoomaker because he lives by buying of Lether and selling of it again in Shoos Crook part 3. fol. 31. Cramp and Barn An Inn-keeper is not within the Statutes of Bankrupts for although he buy provision to be spent in his house and utters it yet he doth not properly sell it but utters it at such Rates as he thinks to be reasonable gains and the Guests do not take it or contract for