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. IV.

Rules for the Constructions of the Sta∣tutes, and when the Bankrupcy shall be said to Commence.

THE Statutes having made a full description of the Bank∣rupt; do then order how, and in what manner the Commissioners shall act. Before we fall directly upon that, I shall name two or three things out of these Statutes which are necessary and useful to be known. As,

Note 1. Per Stat. 21 Jac. c. 19. These Statutes of Bankrupcy are favourably to be construed for the Creditors, being made for the suppression of Fraud. Vide this explained in many Cases hereafter;

and yet this should not be too far ex∣tended. For the Statutes are highly pe∣nal, and my Lord Bacon's Remark is good, It is an hard case to torture Laws, that they may torture Men.

Note 2. By Stat. 13 Eliz. He that is a Bankrupt must be a Subject born in the King's Dominions or Denizen.

One is born in the Isle of Man. Mr. Stone seems, that he cannot be a Bank∣rupt, because it hath been adjudged that it is not parcel of the Realm. But with∣out dispute it is within the Kings Domi∣nions; and the King grants it to a Sub∣ject, and by the precedent Rule the Sta∣tute must be construed favourably for Creditors.

A Denizen of Ireland may be a Bank∣rupt within the intent of the Statute.

One born in a Ship on the Coast of Flanders, may be said to be born in the Kings Dominions.

If the Husband be an Alien, and the Wife a Subject; or the Wife an Alien, and the Husband a Subject; by Mr. Stone it's all one as to Goods, they are both within the Statute, but the Lands are the Kings. Yet I cannot conceive, that if an Alien marry a Subject Woman, of a great Fortune, that he can be within the Statute, for he is no Subject nor De∣nizen; and in such case I never heard of a naturalization by an Apron-string.

But by the Proviso in 21 Jac. c. 19. That Act, and all other Acts made against Bankrupts shall extend to Aliens, and they shall be subject to the Laws as Bankrupts, and capable of the benefit as Creditors.

Note 3. When the Commission is to be sued out, and the effect of it; by the Statute 21 Jac. It is provided, that no Purchaser, for good and valuable consi∣deration, shall be impeached by vertue of any of the Statutes of Bankrupts, un∣less the Commission to prove him or her a Bankrupt, he sued forth against such Bankrupt, within five years after he or she shall become a Bankrupt. In o∣ther Cases I find no time limited for the taking out the Commission; tho' its with∣out doubt the sooner the better for the Creditors. Vide postea Tit. Settlement, Pur∣chasers; and the Proviso, that the Commis∣sion must be sued within five years after some time when he became a Bankrupt, 1 Keb. 12. Bradford & Bludworth.

Note 4. From what time the Bank∣rupcy shall commence, per Stat. 21 Jac. c. 19. If any such Trader (as aforesaid) being Arrested for one hundred pounds, or more, of just Debt or Debts, shall after such Arrest escape out of Prison, or procure his Enlargement by Common or Hired Bail; he shall be adjudged a Bankrupt from the time of his first Arrest. Also by the said Sta∣tute,

If such Trader, 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, he shall be ad∣judged a Bankrupt from the time of his said first Arrest. For the Statute saith in the said Cases of Arrest, or lying in Prison.

But the Statute doth not mention in the Case of Escape. Yet I conceive it is within the intention, the escaping being a more notorious offence than the o∣thers.

Per Stat. 21 Jac. A man is only a Bankrupt by relation from the time of his Arrest; when he makes an escape, or comes out upon Common Bail.

A Merchant is imprisoned, and after becomes a Debtor to A, and then the six Months pass, A is relievable as a Credi∣tor, for he is not a Bankrupt by relation, per Mr. Stone, p. 182.

How a Bankrupt is to be accounted from the first Act of Bankrupcy. Vide infra Cap. 8. Radford & Bludworth's case & Spencer & Vanacres, case.

Notes

• Alien.
• Alien▪ Denizen.