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. III. (Book 3)

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

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

1 Jac. c. 15.—All and every such Traders (as aforesaid) that shall depart the Realm, or begin to keep his or her House or Houses, &c. (us{que}) or yield him or her self to Prison, or willingly and fraudulently shall procure him or her self to be Arrested, or his or her Goods, Money or Chattels to be At∣tach'd, or Sequestred, or depart from his or

her Dwelling-house, or make, or cause to be made any fraudulent Grant or Conveyance, of his, her or their Lands or Tenements, Goods or Chattels, to the intent, or whereby his, her or their Creditors, being Subjects born as aforesaid, shall or may be defeated or delayed for the recovery of their just and true Debts; or being Arrested for Debt, shall after his or her Arrest, lie in Prison six months or more upon that Arrest, or upon any other Arrest, or Detention in Prison for Debt, and lie in Prison six months upon such other Arrest or Detention, shall be accompted and adjusted a Bankrupt, to all intents and purposes.

21 Jac. c. 19. For the further descri∣ption of a Bankrupt.— That all, and every such Trader (as aforesaid) who shall either by himself or others by his procure∣ment, obtain any Protection or Protections, other than such person or persons as shall be Lawfully protected by the priviledge of Par∣liament, or shall prefer or exhibit unto his Majesty, his Heirs or Successors, or unto any of the King's Courts, any Petition or Petiti∣ons, Bill or Bills against his or her Creditor or Creditors, or any of them, thereby desiring or endeavouring to compel or enforce them, or any of them, to accept less than their just and principal Debts, or to procure time or longer days of payment, than was given at the time of their Original Contracts; or being indebted unto any Person or Persons, in the sum of One Hundred Pounds or more,

shall not pay or otherwise compound for the same within six months next after the same shall grow due, and the Debtor be Arrested for the same, or within six months after an Original Writ sued out to recover the said Debt, and notice thereof given unto him, or left in writing at his or their Dwelling∣house, or last place of abode; or being Ar∣rested for Debt, shall after his or her Ar∣rest lie in Prison two months or more upon that or any other Arrest or Detention in Pri∣son for Debt; or being Arrested for the sum of One Hundred Pound or more of just Debt or Debts, shall at any time after such Arrest escape out of Prison, or procure his enlargement by putting in Common or Hired Bayl shall be adjudged a Bankrupt. And in the said cases of Arrest, or lying in Pri∣son for such Debt or Debts, or getting out by Common or Hired Bayl, from the time of his or her said first Arrest.

This Description consists of these several parts.

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

1. By departing the Realm. Mr. Stone in his Lecture, puts this Case. If a man* 1.1 depart the Realm, and long time after his departure becomes non solvent, his absenting himself in such a Case brings him within the Statute of Bankrupts, p.

133. It seems otherwise, For suppose a Wealthy Merchant goes beyond Sea with a good Cargoe, and states his Ac∣counts with his Creditors, who know of his Voyage, and are pleased therewith, and he sends over several effects to them, and they trust him in the way of Mer∣chant-factor; and after five or seven years space, he by Losses becomes non∣solvent, and abides beyond Sea; I con∣ceive this is not within the Statute. For the Statute of 17 Eliz. c. 7. saith, That this withdrawing or absenting, &c. must be on purpose to defraud his Cre∣ditors; and this can never be construed so; and we must imagin after his non∣solvency, he must stay to get up his Eects.

2. Departing from their Dwelling∣houses.* 1.2 It need not be a total departure; for as it is rightly put, If one that hath an House, and yet absents for fear of Arrest, for a time, and then returns, yet he is a Bankrupt. Suppose a man hath no Dwelling-house, but sojourns some∣time at one place, and sometime at ano∣ther, yet if he appear not at his usual times or places of Trade as formerly, nor can be ••ound as formerly, this is within the words of 13 Eliz. c. 7. or otherwise absent himself. So a Lodger in a Chamber. Yet Query: For if he sometimes absent himself, and at other* 1.3 times when he thinks himself safe from Arrests, appears publickly, as upon the

open Exchange, this seems to be a pur∣ging of absenting or withdrawing him∣self before, as it was held in the Case of Hind the Banker, who was sometimes de∣nied at his House, tho' within; yet af∣terwards appearing upon the open Ex∣change, 'twas held in that Case, that this appearing publickly purged such his de∣nial or absence.

3. Keeping their Houses. 20 Jac. B. R. Taylor and Hills Case. It was resolved,* 1.4 That the keeping within his House, unless to defraud and delay Creditors, makes him not a Bankrupt. But if he conceal him∣self for Debt, for which he is sued, and to delay and defraud his Creditors, tho' but for an hour, this makes him a Bank∣rupt. Palmers Rep. 325. Haylor and Hall. Yet it is adjudged, Croke, Eliz. Fo. 13.—If a Trader, on notice of Process issued forth against him, keeps in to se∣cure himself from the Arrest, and after goeth forth again; and then upon like notice keeps his House, and then goeth forth again, this brings him not within the Statutes; because he useth to go at large, and he may be met with one time or other. But Quere of this Resolution. For if this be Law, then I do not un∣derstand the words in 1 Jac. c. 15. or begin to keep his or her House: And also certainly this is a keeping in to delay and hinder Creditors, 17 Eliz. c. 7. If the keeping in be to defraud or delay

the payment, he is a Bankrupt: And Serjeant Stone faith well, Fo. 10. If a Trader absents himself for fear of being Arrested by a Writ de Excommunicato Cap. Or if a Decree in Chancery be made against him to execute a Conveyance, and he keeps in, or withdraws himself for fear of being Attached for not perform∣ing the Decree; such withdrawing doth not make him a Bankrupt. Aliter, Per∣haps if such Decree had been for pay∣ment of Mony, as it was held in the Case of one Albyn, a Turky Merchant. If a Church warden (Trader) keeps the Church; that is either a keeping his House, or taking Sanctuary. So if a Miller keep in his Mill, that is a keeping his House.

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

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

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

1. Voluntary and permissive, 13 Eliz.* 1.5 c. 27. If any such Trader shall suffer him or her self willingly to be Arrested for any Debt, or other thing not grown, or due for Monies delivered, Wares sold, or any other just or lawful Cause, 1 Jac. 15. Or shall willingly or fraudulently procure him or her self to be Arrested, 13 Eliz. c. 7. 1 Jac. c. 15. If any such Trader shall yield him or her self to Prison; this is to be understood of voluntary and feigned Actions; as run∣ning into the Kings Bench or Fleet.

Or shall suffer him or her self to be* 1.6 outlawed. 13 Eliz. c. 7. 1 Jac. c. 15. One Outlaw'd in Ireland, is not thereby a Bankrupt here; for that the Record is not pleadable here, Stone 172. Now the Reason of this Clause is, because by the Outlawry the King is intitled to the Goods, and so seems to be a fraud to the Creditors, which the Law abhors: But if the Debtor reverse the Outlawry, be∣fore the Commission of Bankrupts sued out, it seems otherwise, as Mr. Billinghurst conjectures. If it be Reversed for want

of Proclamations, all done in the mean time by the Commissioners is void.

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

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

Observe this difference,

If such Trader owe 100 l. and up∣wards, and doth not pay or compound for the same, within six Months next af∣ter the same shall grow due, and the Debtor shall be Arrested for the same, he is a Bankrupt, per 21 Jac. 19. But a Clause comes after, And being Ar∣rested for Debt, shall lie in Prison two Months and more; which includes as well under as above an 100 l. So that if a Statute-trader owes me 100 l. and doth not pay it or compound for it within six Months after its due, and he be Ar∣rested for it, this makes him a Bankrupt; and if he owe me 20 l. and shall be Ar∣rested for it, and lie in Prison two Months, this makes him a Bankrupt. Durus Sermo. The Act saith, if he do not compound; suppose his Creditors will not, then he must of necessity lie in Pri∣son; (upon any other Arrest or Detention for Debt.) I conceive the meaning of these words are, for Debt originally, and not Debt by reason of a Fine imposed, &c. For the Statute hath respect to Creditors, either by way of Contract, Exchanging, Buying, &c. and not Fines or Amercia∣ments, &c. which no way respect Trade. (or shall lie in Prison after his or her Arrest two Months or more, on that or any other Arrest, or Detention in Prison for Debt) on which I will put this Case. One owes 100 l. and is Arrested and Im∣prisoned,

and in a Fortnights time pays* 1.7 it; and during that Fortnight another Action of 100 l. is entred against him, and he pays that in a Fortnights time after; and so another Fortnight he pays a third Action off. Quere if this be with∣in the Statute lying two Months or more on that or any other Arrest. I conceive not. For by that payment he is dischar∣ged from that Debt, and so not in Pri∣son on that account.

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

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

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

If such a Trader being indebted unto any person or persons, in the Sum of One Hundred Pounds or more, and shall not pay or otherwise compound for the same within six Months next after the same shall grow due, and the Debtor be Arrested for the same, or within six* 1.8 Months next after an Original Writ sued out to recover the said Debt, and notice thereof be given unto him, or left in wri∣ting at his or their Dwelling-House, or last place of abode. This is plain, and needs no explanation. It was resolved in the Court of Kings Bench, on a Tryal a∣gainst Sir Anthony Bateman, Term. Mich. 1671. That one may become a Bankrupt, by reason of a Suit in the Exchequer, altho' the Statute speaks only of Origi∣nal Writs; for the Statutes shall have a beneficial construction. Per Hales.

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

If such Trader (as aforesaid) being Ar∣rested* 1.9 for the Sum of 100 l. or more of just Debt, shall at any time after such Arrest* 1.10 escape out of Prison, or procure his Enlarge∣ment

by Common or Hired Bail, he shall be adjudged a Bankrupt; and in the said Cases of Arrest, or lying in Prison for such Debt or Debts, or getting out by Common or Hired Bail, he shall be adjudged a Bankrupt from the time of his first Arrest.

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

The next is, per 21 Jac.

If such Trader shall by himself, or others* 1.11 by his procurement, obtain any Protection or Protections, other than such person or per∣sons as shall be lawfully protected by the pri∣viledge of Parliament, shall be adjudged a Bankrupt.

This is plain, All Protections are with∣in this Statute, except Parliament Pro∣tections duly obtained.

The next is,

Or if such Trader shall prefer or exhibit* 1.12 unto his Majesty, his Heirs and Successors, or unto any of the Kings Courts, any Petiti∣on or Petitions, Bill or Bills against his or her Creditor or Creditors, or any of them; thereby desiring or endeavouring to compel or enforce them, or any of them to accept less than their just and principal Debts; or to

procure time or longer days of payment, than was given at the time of their Original Contracts, shall be adjudged a Bankrupt, Statute 21 Jac. c. 19.

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

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

1 Per Stat. 1 Jac. 15. If such Trader* 1.13 (as aforesaid) shall willingly or fraudulently procure his or her Goods, Mony or Chattels to be Attached or Sequestred, shall be adjudg∣ed a Bankrupt. But then note, That this must be of the Parties immediate procu∣ring, and not by his meer Default or Latchess. For the words of the Statute are willingly and fraudulently; therefore Mr. Stone, p. 172. is right in this Case. A Merchant, &c. hath an Impropriate Rectory; the Choire is not repaired, the Tythes are sequestred; it is no Sequestra∣tion within this Statute; for tho' this is his default in not repairing the Church, yet it is not of his immediate procuring. So in Cases of other Attachments out of any Court.

2. Per Stat. 1 Jac. 15. If any such Tra∣der* 1.14 shall make, or cause to be made any fraudulent Grant or Conveyance of his, her or their Lands or Tenements, Goods or Chat∣tels, to the intent, or whereby his, her or their Creditors, being Subjects born (but Per 21 Jac. it extends to all Strangers) shall or may be defeated or delayed for the reco∣very of their just and true Debts, shall be adjudged a Bankrupt.

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

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

And they may be considered two ways.

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

But first I shall observe any one single Act of these descriptions is sufficient to

make such Trader (as aforesaid) a Bankrupt. And that (as by the Pream∣ble of the several Statutes against Bank∣rupts it appears) the main intent of the Statutes is to relieve Creditors against Frauds and Deceits; tho' in some of the forementioned descriptions a delaying of Creditors is provided against, as the ly∣ing in Prison six Months, or two Months, or not paying or compounding, per 21 Jac. &c. yet Fraud and Cheat lies, or should lie at the bottom of all; and I understand not the distinction of a Bank∣rupt by Fraud, and a Bankrupt by Ac∣cident, which I find in some of our Books, as the Laws have been expounded.

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

If a Trader, finding himself sink in his Estate, and doth make a Conveyance of all his Lands and Goods to Trustees for the payment of his real Debts, and then absents; yet this Conveyance, tho' it may be truly and honestly made

and intended, shall not excuse him; for his very absconding makes him a Bank∣rupt: But if he abscond not, but declares his intention to pay his Debts, and the Trustees act accordingly, and pay as far as it will go proportionably, this Con∣veyance, without other act shall not make him a Bankrupt; for here is no fraud.

Of Settlements voluntary.

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

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

If a man make such a voluntary Set∣tlement, and be indebted at that time, he shall be an Offender within this Sta∣tute of 13 Eliz. The words in the last Proviso of that Statute are, Provided al∣ways, that this Act shall not extend to any

Lands, &c. Free or Copyhold, which shall be hereafter assured by any Bankrupt before he became a Bankrupt: So always that such Assurance be made bonà fide, and not to the use of the Bankrupt himself, or his Heirs; and that the Parties to whose use such As∣surance shall be made, be not at, or before the making such Assurance, privy or consent∣ing to the fraudulent purpose of any such Bankrupt to deceive his Creditors. But if he be not indebted at the time, if he purchase for another, and give unto ano∣ther; if no fraud be found, it is not within the Statutes; or else Lands pur∣chased forty years before might be de∣feated, March. Rep. 34. Crisp. & Platt. this Case is well reported by Croke Car. 548, 549, 550. this Land was given by the Father (six years before he became a Debtor) to his Son, and no fraud found (being on a special Verdict) altho' there be circumstances of a fraud by the sole taking the Profits, untill he became a Bankrupt.

It is reported in Justice Hutton, That Every Deed made to defraud other Cre∣ditors (but those to whom it is made) is not sufficient to make one a Bank∣rupt. But if he make any Deed after he begins to be a Bankrupt, that shall not bind, per Stat. 1 Jac. which makes him a Bankrupt, that makes a fraudulent Deed: It must not be made long before he becomes a Bankrupt, Hutton. 42,

43. 1 Croke 13. March. 34. The Case was,

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

Of fraudulent Deeds and Settlements, in reference to Purchases, vide in∣fra.

Of a mans becoming twice a Bankrupt.

Note. In the Case of Jollyser & Horn, Hill. 1657. in Com. B. The Commission was sued out within five years after he became a Bankrupt, and it was confest he was a Bankrupt in 1641. but it was said he became a Bankrupt again in 1649.

And Hales puts this difference, that if one become a Bankrupt by a transient Act, as suit, &c. he may again become a Bankrupt; but if by a Continued Act, as Imprisonment, withdrawing himself, &c. he may not become a Bankrupt a∣gain; so with this difference you may understand how it is said, once a Bank∣rupt and always a Bankrupt.

Notes

• * 1.1

  Departing the Realm.
• * 1.2

  Departure from his House.
• * 1.3

  Denial to be at home.
• * 1.4

  Keeping his House.
• * 1.5

  Feigned Acti∣ons.
• * 1.6

  Outlaw••••.
• * 1.7

  Lying in Pri∣son.
• * 1.8

  After an Origi∣nal Writ sued out.
• * 1.9

  Escape.
• * 1.10

  Common Bayl.
• * 1.11

  Protections.
• * 1.12

  Petition to com∣pound or pro∣cure time.
• * 1.13

  Fraud as to Goods.
• * 1.14

  Lands or Goods.