The law against bankrupts: or, A treatise wherein the statutes against bankrupts are explained by several cases, resolutions, judgments and decrees, both at common law and in Chancery. Together with the learning of declarations and pleading relating thereunto. To which are likewise added forms and directions for commissioners, and presisidents, fit for the perusal of lawyers, or merchants and tradesmen. By T.G. serjeant at law.

CHAP. II.

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

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

And as to that, it is to be considered;

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

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

Stat. 13 Eliz. c. 1. If any Merchant, or other person, using or exercising the Trade of Merchandize, by way of bargaining,

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

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

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

Stat. 14 Car. 2. c. 24. Whereas divers Noblemen and Gentlemen, not bred up in Trade, have notwithstanding put great Stocks into the East-India and Guiney-Company, it is declared, That no persons,

Adventurers for putting in Mony or Mer∣chandize into the said Companies; or for adventuring or managing the Fishing, called the Royal-Fishing-Trade, shall be reputed or taken to be a Merchant or Trader within any Statutes for Bankrupts, or be liable to the same: Provided that persons Trading or Trafficking in any other way or manner, than the said Companies or Fishing, shall be liable to the Commission of Bank∣rupts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Carpenter in London hath been ad¦judged a Bankrupt; but not quà •• Working-Carpenter.

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

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

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

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

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

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

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

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

Any Trading, tho' the Trade be ne∣ver so Inferior in it self; yet if they get their living by buying and selling, and deal considerably in it, makes a Bank∣rupt, with other acts of Bankrupcy.

One is not a Trader within these Sta∣tutes, who hath left his Trade, but sells his Goods lying upon his hands, for the Debts which he hath contracted after∣wards; unless that the Debts were con∣tracted during the Trade: But,

If such Persons Trade again, and so become Indebted, he is a Bankrupt for this; but not for the Debts between. Sir John Harrison and Sir Job Harvey's

Case, cited in Sir Anthony Bateman's Case, Siderfin, p. 411. So,

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

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

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

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

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

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

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

Sir Tho. Littleton, Mr. Papillion, and Mr. Child by contract with King Charles 2. were to victual the Fleet at 8d per di∣em a Head, who made an under contract with the Pursers of the Ships (two of which, viz. Mr. Gibson, Mr. Hench were Plaintiffs) to victual at 6d per diem, and gave a Note of 800 l. at 6d per diem; and before this Contract Sir Thomas was

no Trader, as was agreed; and per Cu∣riam, this Contract to Victual a Fleet is no more than to Table with a private man, which will never make a Trader within this Statute; which looks on ge∣neral Trades by which livelihood is got∣ten ordinarily, not on particular em∣ployments; for so the King's Butler or Steward, or any other Officer might be a Trader.

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

3. It was resolved, that if under dis∣guise of such contract, Sir Thomas trade with other Merchants under-hand or se∣cretly; that shall be a Trading within the Statute. But the selling off a Sur∣plusage is no more a Trading, than a Gentlemans selling off the Surplusage of Hay; and he must be a Buyer and Seller too, that is within the Acts. It's not sufficient to Buy alone, or Sell alone; and one single Act, tho' it l••t a man into a general dealing, will not make a Bank∣rupt, no more than a Commission of Ex∣cise, or a School-keeper that boards Scho∣lars, or Stewards of the Inns of Courts, or Farmers of the Customs, Gibson vers. Tompson. p. 27. Car. 2. B. R.

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

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

Now before this Statute of 14 Car. 2. was made, one Sir John Woolstenholme was one of the Corporation of the East-India Company, and a Gentleman of 3000 l. per annum, and had a Stock in the Com∣pany of his own, and sat in the Com∣mittee of the said Company as a Mer∣chant in the management of Trade, and did receive at several times the Proceed of his Stock upon returns of Ships, and became indebted to divers persons, and absconded himself. It was held, that

tho' he did not get the greatest part of his Living by Buying and Selling, yet his Employment in the said Committee and Trade, was such a Buying and Sel∣ling, as brought him within the Statutes of Banckrupts, and that the Statute was to be taken largely for the Creditor against the Bankrupt, and his taking out of his Stock and Goods, and disposing them was a selling within the Stat. of 21 Jac. Hughes grand Abridgment. Sir John Woolstenholms Case. But this Verdict and Judgment against Sir John was re∣versed by the said Stat. 14 Car. 2. c. 4. but not to avoid any sale of his Lands made by the Commissioners.

If a man trade in the East-India Com∣pany, and in the African Company, or Guiny Company and abscond, &c. he is not within the proviso of this Statute, but shall be a Bankrupt. A Virginia Mer∣chant is within the Statute, and so o∣thers.

Notes

• Scrivener.
• Stocks in Companies.
• Aliens
• 1 Note.
• Particular Employment.
• Shoe-maker.
• Iron-monger.
• A Trading Smith.
• Clothier.
• Taylor.
• Sales-man.
• Carpenter.
• Inn-holder.
• Grazier.
• Vintner. Brewer.
• Farmer.
• Drover.
• Husbandman.
• Leaving off Trade.
• Trading again.
• Debts owing when he was a Trader.
• Partner.
• Cole-Marchant
• Importation of Goods.
• Joint stock.
• Particular Em∣ployments.
• Selling off a Surplusage.
• ••••ewards▪ Far∣mers of Customs
• Feme Covert-Merchant and her Husband▪
• Companies.
• Adventurers▪
• A Gentleman▪ Trader.
• East India. Africa.
• Virginia.