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
it at a certain price and if he take excessive prices he is indictable and Inn-keepers have many times Hay Corn c. of their own growth and their gains arise by the attendance of their servants and furniture of their House and Rooms for the accommodation of his Guests Crook 3 part fol. 549. Crisp vers Prat. 6. The like I suppose may be said of a Taylor for his Trade is not by buying and selling but by making of the Garment and in what he buyeth he doth it but as a servant to his Customers and ought not to take any more than he lays out 7. Sir John Wolstenholm one of the East-India Company a person of 3000 l. lands a year yet in regard he had a stock in that company and received the proceed thereof he was held to be within the Statutes of Bankrupts although he did not get the greatest part of his living by buying and selling notwithstanding the words of the Statute Seeking his or their Trade by buying and selling for the Statute shall be expounded beneficially for the Creditors and it is not the Quality of a mans Person or the greatness of his Estate that exempts him out of the Statute Hughs Abridgment fol. 315. Case 7. 8. A Feme covert sole Merchant in London being such an one as driveth one Trade and her Husband another by the custom of that City may bring an action without her Husband and be sued without her Husband 1 E. 4. pag. 13. And if her Husband be named with her in an action brought against her it is but for conformity contra if she exercise the same Trade with her Husband although she buy and sell c. for it shall be intended as servant to her Husband Crooke 3 pag. fol. 69. also a feme covert sole Merchant may give away and dispose of her goods without her Husband 21 H. 7. 18. pag. 29. A Feme covert sole Merchant may be a Bankrupt for if the Custom of London doth create in her a distinct property from her Husband in the goods she deals in by the same reason she alone may become a Bankrupt within the Statute and her husband not included and her husband be also a Bankrupt and she not thereby included Yet Quere for the wife is sub potestate viri by the Law of God and Nature from which no custom can exempt her and her husband when he please may determine her sole Merchantship and there it may seem reasonable that his being a Bankrupt should involve her estate and that her being a Bankrupt should involve his Estate because it is by his permission and privity she drives a distinct Trade Vide Stones Lecture 162. who is of opinion that if she absent her self c. and her husband be non-solvent both will become Bankrupts for it was his folly 〈◊〉 suffer her to be sole Merchant 9. A Merchant gives over h 〈…〉 trading and seven years after becomâ— non-solvent for money he took up whiâ— he was a Merchant he shall be a Bankrupt Stones Lecture fol. 7. contra f 〈…〉 Debts contracted since he gave oveâ— Trading so for Debts due before hâ— gave over trading and continued upoâ— new security taken since he gave over h 〈…〉 trading ibid. 10. A Grasier that hireth groundâ— and buyeth Cattel and feedeth them and then sells them again may be a Bankrupt and is within the Statutes of Bankrupts saith Stone contra if he grase his own Free-hold Stones Lecture 165. Yet Quere of the last point for if hâ— grase them in his own Free-hold yet notwithstanding he seeketh his Trade of living by buying and selling though not wholly by buying and selling Vide Sect 7. 11. A Clothier that sets poor people on work but himself doth only buy the wool and sell the Cloth may be a Bankrupt contra if he work himself and keepeth Looms and servants saith Mr. Stone in his Lecture fol. 165. but Quere of the last point why he may not although he work himself be within the Statutes of Bankrupts as well as a Shoo-maker who buyeth Leather and makes it up into Shoos and sells them for a Clothier buyeth Wool and makes it up into Cloth and sells it Vid. Sect. 5. A Scrivener may be a Bankrupt by 21 Jac. chap. 19. 12. Thirdly a Bankrupt is set Hiâ— demâ—anour forth and described by his Demeanour or Carriage which is 1. his withdrawing himself as it is in 34 H. 8. cap. 4. Whereas divers and sundry persons craftily obtaining into their hands great substance of other mens do suddenly fly into parts unknown or keep their houses and by 13 El. cap. 7. he is said to be such an one as shall depart the Realm or begin to keep his or their House or Houses or otherwise c. 13. A Merchant or Trader absents himself for fear of being arrested by a Writ de excommunicato capiendo so if a Decree in Chancery be made against him to make a Conveyance and he withdraws himself for fear of being attached for not performing of the Decree Iâ— seems in neither of these cases doth his withdrawing make him a Bankrupt contra if the substance of the Decree had been for payment of Money because in such case his withdrawing had been for Pay to defraud or delay the payment of his Debt Stones Lecture fol. 10. If he depart the Realm and long time after his departure becomes non-solvent his absenting himself in such case brings him within the Statutes of Bankrupts ibid. 133. 14. Secondly Keeping of their Houses withdrawing themselves and keeping their houses as it is in 13 Eliz. cap. 7. and 1 Jac. cap. 15. If a Trader upon notice of Process issued forth against him keeps his house to secure himself from the arrest and after goeth forth again and then upon like notice keeps his house and then again goeth forth this bringeth him not within the Statutes of Bankrupts because he uses to go at large and his Policy will not always prevent the serving of Process on him for he may be met withal unwittingly one time or other Crook part 3. fol. 13. pag. 6. If one that hath no house sojourns sometimes at one place and sometimes at another yet if he appears not abroad as formerly nor can be found as formerly this is an absenting himself as is conceived within the Statute of 13 El. chap. 7. where the words are or â—therwise absents himself the same words are in 1 Jac. cap. 15. 15. Thirdly taking of Sanctuary â—s it is in 13 El. cap. 7. and 1 Jac. cap. â—5 There be no Sanctuaries now in England therefore all priviledged places where the Kings Officers cannot come â—re within these Statutes as Stone conceives in his Lecture fol. 171. 16. Fourthly Such as shall suffer themselves willingly to be arrested the words of the Statute of 13 El. cap. 7. â—re Or suffer him or her self willingly to be arrested for any Debt or other thing not grown or due for moneys delivered wares
Lands Tenements or Hereditaments And be it further enacted That if any person that now is or hereafter shall become a Bankrupt have heretofore granted conveyed or assured or shall at any time hereafter grant convey or assure any Lands Tenements Hereditaments Goods Chattels or other estate unto any person or persons upon condition or power of redemption at a day to come by payment of mony or otherwise That it shall and may be lawful to and for the said Commissioners or the greater part of them before the time of the performance of such condition to assign and appoint under their hands and seals such person or persons as they shall think fit to make tender or payment of mony or other performance according to the nature of such condition as fully as the Bankrupt might have done and that the said Commissioners or the greater part of them shall after such tender payment or performance have power to sell and dispose of such Lands Tenements Hereditaments Goods and Chattels and other estates so granted conveyed or assured upon condition to and for the benefit of the Creditors as fully as they may sell or dispose of any the estate of the Bankrupt Provided further that no Purchaser for good and valuable consideration shall be impeached by vertue of this Act or any other Act heretofore made against Bankrupts unless the Commission to prove him or her a Bankrupt be sued forth against such Bankrupt within five years after he or she shall become a Bankrupt Provided further and be it enacted by the Authority aforesaid that this Act and all other Acts of Parliament heretofore made against Bankrupts shall extend to Strangers born as well Aliens as Denizens 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 Stat. 34 H. 8. 4. 13 El. 7. 1 Jac. 15. Stat. 14 Car. 2. Chap. 24. Whereas divers Noblemen and Gentlemen not bred up in Trade have notwithstanding put great Stocks into the East-India and Guiny Company it is declared that no persons Adventurers for putting in Mony or Merchandise into the said Companies or for adventuring or managing the Fishing called the Royal Fishing Trade shall be takâ—n or reputed a Merchant or Trader within any Statutes for bankrupts or be liable to the same Provided that persons trading and trafficking in any other way or manner than the said Companies or Fishing shall be liable to the Commission of Bankrupts A Verdict and Iudgment against Sir Jo Wollaston as a Bankrupt for trading in the East-India Company reversed and made void Provided not to avoid any sale or disposition of his lands or goods made by vertue of the Commission of Bankrupts To the Right Honourable c. IN most humble manner complaining sheweth unto your Lordship your daily Orators T. B. of A in the County of D. Gent. and W. P of C. in the County of E. Esq as well for themselves as for all others the Creditors of R. D. of the Parish of M. in the City of London Merchant That whereas the said R. D. using and exercising the Trade of Merchandize by way of Bargaining Exchange Bartering and Chevisance seeking his Trade of living by buying and selling upon good and just causes for Wares and Merchandizes to him sold and delivered and also for ready mony to him lent being indebted to your Orators and others his Creditors in divers and several sums of money amounting in the whole to the sum of c. and upwards of late that is to say about the Month of November last did become Bankrupt within the several Statutes lately made against Bankrupts to the intent to defraud and hinder your said Orator and all other his Creditors of their just Debts and Duties to them due and owing viz. within the Statute made in the Parliament begun and holden at Westminster the second day of April in the thirteenth year of the Reign of our late Sovereign Lady Queen Elizabeth concerning Bankrupts and within the Statute made in the Parliament begun and holden at Westminster aforesaid the nineteenth day of March in the first year of the Reign of our late Sovereign Lord King James of England France and Ireland and of Scotland the seven and thirtieth Intituled An Act for the better relief of the Creditors against such as shall become Bankrupts as also within the Statute made in the Parliament begun and holden at Westminster the nineteenth day of February in the one and twentieth year of the Reign of our said late Sovereign Lord King James of England France and Ireland and of Scotland the seven and fiftieth Intituled An Act for the further description of a Bankrupt and relief of the Creditors against such as shall become Bankrupts or within some or one of them In tender consideration whereof may it please your Lordship to grant unto your Orators his Majesties most gracious Commission to be directed to such and so many wise honest and discreet persons as your Lordship shall seem meet authorizing them thereby not only concerning the said Bankrupt his Body Lands Tenements Free-hold and Customary Goods Debts and other things whatsoever but also concerning all other persons which by concealment claim or otherwise do or shall offend touching the premises or any part thereof contrary to the true intent and meaning of the same Statutes To do and execute all and every thing and things whatsoever as well for and towards satisfaction and payment of the said Creditors as towards and for all other intents and purposes according to the Ordinance and Provision of the same Statutes And your Orators shall pray c. In Bankrupt Note What he is discovered 1. By general description Sect. 1 2. 2. By his Trade 4 5 6 usque ad Sect. 11. By his demeanour 12 13 14 usque ad Sect. 25. By the final cause of all Sect. 26. The proceeding against and puniâ—hment of him 1. In general he shall be accompted a Bankrupt and made thereby incapable to dispose of his own Sect. 28. 2. In particular by persons 1. Immediately appointed by the Act and therein note 1. What they are Sect. 29. 2. Their authority set forth 1. Generally Sect. 29. 2. Particularly 1. Touching his person Sect. 30. 2. As to his Estate and therein note 1. The way of discovering it 32 33 34. 2. The disposal of it Sect. 35. 2. Mediately authorised by Lord Chancellor 1 Their Commission Sect. 36. 2. Their authority 1. As to the Bankrupts person Sect. 39 40 41. 2. As to his Estate 2. What it is real 43 45 usque ad 57. personal 61 62 usque ad 71. 2. The means of discovery as to the persons the Bankrupt himself Sect. 73 74 75 76. the Bankrupts Wife Sect. 77. other persons what persons Sect. 78. proceeding with them to send for them Sect. 78. to examine them Sect. 78. to punish them 79 80 usque ad