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A93927 The reading upon the statute of the thirteenth of Elizabeth, chapter VII. touching bankrupts, learnedly and amply expained, by John Stone of Gray's Inn, esquire. Stone, John, d. 1640. 1695 (1695) Wing S5730; ESTC R43936 72,205 137

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not properly upon this Statute for the death of a Bankrupt is not provided for by this Statute but plainly by the Statute of primo Ja. the last Clause and I think that even for the debt of such a Wife it shall be sold after his death and although I put it that a Feoffment is made to him by the Son which cannot work by way of Livery because he was Tenant in tail yet if the Donor will enfeoffe the Donee by Deed this will work to the increasing of his Estate by way of confirmation 7 H. 6. 5. If the Inheritance of the Feme shall be sold She hath power to forfeit it by Attainder or by Cessavit and by this Statute they may sell all the Bankrupts Lands lawfully that is by any lawful course of Conveyance depart with all 6. The Commission shall be in force against her after the death of her Husband for if her Husbands death shall not help his Heir a Fortiori it shall not help her that lives Also as the credit of the one was the credit of the other for who would trust a Woman whose Husband was known to be of no credit so the offence of the one is the offence of the other and the gains of the one the gains of the other 7. But if this Man and Woman be both Aliens then neither of them are within this Statute but another course must be taken with them by the Statute of H. 8. cap. The Woman was born upon the Coasts of Flanders and the Man in the Port of Diep and I hold them both born in the Kings Dominions for him that was born in the Port I mean in a Ship lying at that Port Town there is small question but it is within the Kings Dominions It is said of King H. 2. That he was the greatest King that ever was in England for he had all the Land and Sea under his Dominion from the Orcades to the Pireneian Mountains which sever France and Spain England and Scotland he had by the Norman Conquest they and Normandy were laid together by Hen. 1 Anjou Tourain and Main were the Inheritance of his Father the first Plantagenet Poytiers and Aquitaine he had by his Wife Britainy held of him as of his Dukedom of Britainy so as all the Sea Coast even from Calis to St. Sebastians in Spain was his so that the French King had no way nor passage to the Sea nor Jurisdiction in the Sea It is true that by the Attainder of King John for the murthering of Prince Arthur a great part of all this was seized by the King of France and in the end by R. 2. H. 6. and Queen Mary all the Land was lost but the Sea was never lost witness the Isles of Alderney which stand within three Miles of France and Gersey and Garnsey which the French to this day could never conquer and yet they speak French and indeed are all that is left to the King of England that was any part of the Dakedom of Normandy But the Coasts of Flanders is more doubtful for Flanders was never in the Jurisdiction of the King of England but yet they were never Masters of the Sea The Lord Admirals Jurisdiction that he claims is at this day as well of the German Ocean as in the Straights and we say the Dutchmen do us wrong to Fish in these Seas 8. But admit the Woman is an Alien yet I take it if her Husband be an Englishman they shall be both Bankrupts within the Statute he as I said by the Law and she by Law and Custom for as the Custom will allow her to be a sole Merchant if her Husband he a Citizen altho' she be an Alien so likewise shall her Estate be subject 9. But if he be an Alien yet all will be one for his Goods but his I ands are the Kings for if he will Trade and Traffi●ue by his Wife and her Credit being English and having Land and so have and enjoy the Priviledges and Benefits of a Subject by his Wives legitimation her Land and the Custom of the City there it is no reason but that he should be subject to such Laws as other Subjects are So as if the Wife be an Alien and the Husband a Subject or the Husband an Alien and the Wife a Subject they are clearly in both cases within the Statute for Goods but my Case is for Lands and in my Case I hold them both born within the Kings Dominions 10. But the greatest Question in my Case and a thing never yet put in u●e or questioned is if a Bankrupt is Tenant in tail if by the sale of the Commissioners the issue in tail shall be barred they shall for the words of this Statute and of the Statute of 26 H. 8. are all one The words of 26. are If any parsons shall be attainted of any High Treason by course of the Common Laws they shall forfeit to the Kings Majesty their Lands Tenements and Hereditaments wherein they have any Estate of Inheritance Our Statute is That the Commissioners by Deed enrolled may sell the offenders Lands Tenements and Hereditaments as well Free as Copy c. in neither of these Statutes are intailed Lands mentioned But we see in Walsingham's Case Plowd and in Dowghties Case and in common experience that an Estate tail is forfeited by 26 H. 8.13 But you will say in 26 H. 8. there be words more to carry it than in your Statute for that saith any Estate of Inheritance and an Estate tail is an Estate of Inheritance but our Statute hath words which tant amount for ours is of all Lands Tenements and Hereditaments which he or she may lawfully depart withal and Tenant in tail may lawfully by fine cut off his issue And it is set down for Law that a gift in tail with condition that the Donee shall not levy a Fine is unlawful a void and repugnant condition for it is said in Mary Portington's Case there be three incidents to Estate tails at the Common Law by Statutes and by Custom By the Statute of 32 H. 8. cap. 28. to levy fines and no condition can take away that from an Estate that is incident to the Estate as it is put of Dower Tenant by the courtesie 11. The last is upon my conclusion admit that the issue in tail could avoid the Lease whether the Vendee hath the same priviledge If Tenant in tail make a Lease not warranted and dies and the issue levy a fine before entry 33 H. 8. Dier The Conizee shall not avoid the Lease 8 E. 3. p. 22. The same is if he accept the Rent or confirm the Lease before entry The Lord Bedford's Case Cook lib. 7. The Kings Gardian shall avoid The King hath the Temporalities of a Bishop he shall avoid and all this is for the benefit of the Heir or Successor and so in our case it is for the benefit of the Bankrupt for in the end they must
wherewith he makes his Ware and sells his Ware again as a Shoomaker 16. A Vinter is a Bankrupt for he buys Wine and sells Wine but I doubt of a Brewer The second Division Who shall be said to be a Subject born within the Realm or Denizen 1. NO Ambassadors Children born in England can be for although they were born within the Realm yet they are not Subjects born 2. One born upon the Coasts of Denmark or the Low Countries is no Bankrupt but one born upon any part of the French Coasts or Brittany between Calice and the Isle of Oleron is a Bankrupt 3. One born in Ireland or the Isle of Man or in Garnesey c. or in Barwick is a Bankrupt but neither the ante nati nor post nati of Scotland are within this Statute but they are both within the Statute of primo the King 4. A Merchant Stranger is made Denizen upon condition that within seven years he shall marry an English Woman he becomes indebted and at five years end he marries an Alien and departs the Realm and before seven years end she dies and he marries an English Woman he shall be Denizen and Bankrupt within this Statute 5. A Merchant Stranger is made Denizen upon condition that he shall not depart the Realm and he departs yet he is a Bankrupt but if it were for anothers life contrary for that is not his own act 6. One is made Denizen of Ireland by Charter under the Great Seal of Ireland he is no Bankrupt but if it were under the Great Seal of England contrary 7. One naturalized by Act of Parliament is Bankrupt 8. A Merchant Stranger is sworn to Allegiance in the Leet or at Sessions and dwells here for twelve years by the Law of Nations this makes him subject to the King but not within the Statute for he must be a Subject born wherein he is different from an Ambassadors Son for he is born but no Subject and this contrary 9. Baron and Feme travel beyond the Seas by License a Son born there is not a Bankrupt yet he is a Subject but not a Subject born within the Realm 10. One born in England becomes a sworn Subject to the King of Spain and dwells and trades there for two years he is within the Statute and his Goods there shall be sold Doctor Story 11. A Merchant Stranger is naturalized without being sworn to the Supremacy or Allegiance he is a Bankrupt notwithstanding the Statute of 7 Jacobi cap. 2. The Third Division In what Cases and what matters make one Bankrupt as departing the Realm c. as in the second Division 1. A Feme Covert sole Merchant of London Elopes with her Goods into Scotland she is a Bankrupt 2. The Baron of such a Feme is outlawed for the Debt of the Feme the Baron and Feme are both Bankrupts 3. A Merchant departs the Realm to Merchandize and becomes indebted and to avoid arrests defers his return this doth tantamount as a departing of the Realm 4. One departs the Realm by License and becomes a Merchant and a Privy-Seal awarded against him he refuseth to return he is a Bankrupt 5. A Capias de excommunicato capiendo is awarded against one who for fear of Arrests departs the Realm he is no Bankrupt 6. The same for departing the Realm or keeping his House for fear of an Attachment in Chancery 7. A Merchant indebted keeps a Shipboard this is keeping his House 8. A Maltman becomes a Miller and he keeps in the Mill. 9. The King grants to a Merchant indebted the keeping of a Castle who keeps the same by colour of his Office but for fear of Arrests refuseth to come abroad to Church c. 10. A Merchant indebted departs the Realm to Merchandize and having loss by Tempest returns no more this is not a departing c. but an absenting himself 11. One recovers debt in the Admirals Court upon a Contract made upon the high Sea and the Defendant being a Merchant lies in execution in the Admirals Prison for six months he is a Bankrupt 12. An Apothecary is made Church-warden and being indebted keeps in the Church this is a keeping of his House 13. One hath no House of his own but keeps in another mans House and is a Bankrupt it is his House 14. There be now in England no Sanctuaries therefore all priviledged places where the Kings Officers cannot come and yet there is no Law nor Justice to be had judicially in the place is within these words of taking of Sanctuary 15. To keep in the Tower of London is no taking of Sanctuary but if the Steward or the Lieutenant be a Merchant and indebted and keep the Tower he is a Bankrupt 16. One takes Gray's-Inn is a Bankrupt yet they have no exemption from Officers but usus condo c. 17. One hath no House but an upper Chamber 7 E. 3. 18. One is outlawed he is a Bankrupt but if the Outlary be reversed for want of Proclamations all done in the mean time by the Commissioners is void but if it were reversed for Error contrary 19. One outlawed in the County Palatine of Durham is a Bankrupt but contrary in Ireland for the Record is not pleadable here 20. A Merchant hath a Rectory appropriate the Quire is not repaired the Tithes are sequestred no sequestration within the Statute 21. A Merchant ackowledges himself to be the villain of I. S. to defraud his Creditors he is a Bankrupt and yet his goods and body are not subject to Commission The fourth Division What Freehold Lands of a Bankrupt may be sold by Commissioners 1. A Merchant makes a Feoffment in Fee upon Condition upon payment of money to re-enter he becomes a Bankrupt the Commissioners may tender the money at the day and sell the Land 2. A Bankrupt is Tenant in Tail the Commissioners may sell the Land and the sale shall be as good as if it were by Fine for Tenant in Tail by Fine c. may lawfully depart with the Land 3. One hath a Lease for years upon condition to have in Fee the Commissioners may sell the Term and possession 4. Land is devised to a Bankrupt the Commissioners may sell and the Bankrupt shall not wave the devise 5. A Bankrupt hath a villain and manumits him the Commissioners shall not sell in favorem Libertatis 6. A Baron useth merchandize and is nonsolvent the Commissioners shall not sell his Barony 7. A Rent seck whereof is no seisin shall be sold and good without Attornment 8. All Offices of inheritance shall be sold as the Wardenship of the Fleet or a Jaylor by inheritance contrary of all Offices of trust that are but for life 9. A Monopoly granted to one and his Assignes as the sole making of Cards c. shall not be sold because it is a void Patent and nothing passes by it 10. The Office of sole Printing of Law Books is void therefore not saleable 11. A