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. V. (Book 5)

Of Creditors. Who are Creditors within the Statute, and who are not. Of their Prefe∣rence. Of their coming in, and within what time they are to come in, or their refusal; and of Contribution to the Charges. And the Form of an Authority to receive Contribution Mony.

Who are Creditors within the Statute, and who not.

A Merchant enters into a Statute* 1.1 or Recognisance; the Conisee is a Creditor, and must come in and contribute, or else he shall have no relief.

An Executor becomes a Bankrupt, a* 1.2 Legatee shall be relieved as a Creditor.

Mortgagee is not a Creditor within* 1.3 the Statute, and need not come in▪ for he is provided for by the Statute. So a a Merchant pledgeth Goods, and be∣comes a Bankrupt, the party need not come in.

As well Aliens as Denizens may come* 1.4 in as Creditors, per Stat. 21 Jac. c. 19.

A Surety may come in as Creditor.* 1.5 O. & B. are Sureties for J. S. for the pay∣ment of Mony; and had Counterbonds from J. S. to save them harmless: The Mony was not paid at the day. O. and B. the Sureties pay it. J. S. after be∣comes a Bankrupt, Per Curiam. O. & B. are Creditors within the Statutes, Croke, Jac. 127. Osborn & Churchman.

One hath a Debt not yet due, yet he* 1.6 shall be relieved with rateable respect of abatement for the time.

Mr. Stone saith, One that recovers da∣mages* 1.7 in Waste or Trespass, shall not be relieved as a Creditor; Quaere, if that be Law? For in Benson & Flowers Case. Jones Rep. fo. 215. A man recovered Damages in an Action on the Case for Words, and became a Bankrupt, after Judgment, when it is reduced to a cer∣tainty, it may be assigned. By the same reason, if the Plaintiff recover Damages against the Defendant, and hath Judg∣ment, and the Defendant becomes a Bankrupt, the Plaintiff is a Creditor: It is a Debt due to him, and Action of Debt lies upon the Judgment. Quaere.

The Plaintiff that hath the Defen∣dants* 1.8 Body in Execution, shall not come in to be relieved. But if he have his Body in Execution on a Statute Mer∣chant, aliter, per Mr. Stone. Quaere.

A. is Bail for B. either to bring his Bo∣dy,* 1.9 or to pay the Condemnation-mony.

B. becomes a Bankrupt, and absents, A. pays the Mony, he may come in as Cre∣ditor.

If one trust a Bankrupt, after he be∣comes* 1.10 a Bankrupt, he shall not be relie∣vable as a Creditor.

Vide infra, The Case of Craven and Knight in Chancery.

A Statute extended upon a Bankrupts Lands, before the Liberate filed, Lord Chancelor ordered to take like composi∣tion with other Creditors. Overman a∣gainst Wright, Hill. 17 Jac. li. B. fo. 807.

Per Stat. 21 Jac. It is enacted, That* 1.11 all, and every Creditor and Creditors, ha∣ving security for his, or their Debts, by Judgment, Statute, Recognisance, Specialty with Penalty, or without, or having no se∣curity, or having made Attachment in Lon∣don, or any other place, by vertue of any Custom, there used, of the Goods and Chattels of any such Bankrupt, whereof there is no Execution or Extent served and executed up∣on any the Lands, Tenements, Heredita∣ments, Goods, Chattels, and other Estate of such Bankrupt, before such time as he, or she shall, or do become a Bankrupt, shall not be relieved upon any such Judgment, Statute, Recognisance, &c. for any more than a rateable part of their just and due Debts with the other Creditors of the said Bank∣rupt, without respect to any such penalty, or

greater sum contained in any such Judg∣ment, Statute, Recognisance, &c. Of Fo∣reign Attachment, Vide infra.

Of Preference.

THE Bankrupt cannot prefer one Creditor before another, 2 Rep. 23.

The King shall be preferred before a* 1.12 private person by the Stat. 21 Jac. But one part shall be allotted to him by the Commissioners, according to the pro∣portion that other Creditors have. Sir Simon Nevels Case, Hill. 3. Car. 1. & Pasch. 1650. Pickerings Case.

It was moved in Monck and Claytons Case, 3 Keb. 68. & p. 14. That Mony of the Plaintiffs being a Bankrupt, and an immediate Debtor to the King by re∣turns of Monys from the Commissioners of Excise, might not be delivered out of Court, to the Assignee of the Com∣missioners of Bankrupts, Sed non allocatur. But the Mony was ruled to be delivered to the Assignee, and that the King may by Scire Fac. recover it against them.

As to the Case of the King, when the King hath Title at Common Law, as by Outlawry, &c. and the Subject Title by Act of Parliament, as in this Case of the Creditors, which shall be preferred, Vide infra, sub Titulo Assignment.

Of Creditors coming in, and of Con∣tribution.

IT is Enacted, That* 1.13 it shall be Lawful for any of the Creditors of the said Bank∣rupt within four Months after any such Commission shall be sued forth, and until distribution shall be made by the said Com∣missioners for the payment of the Bankrupts Debts, as in such Case hath been used, to partake and join with the other Creditors, that shall sue forth any such Commission for satisfaction and payment of his, her or their Debts, to him or them owing, without any Hindrance, Let or Disturbance of any of the same Commissioners, or of any of the other Creditors, or of any such Bankrupts; the same Creditors so coming in to contribute to the Charges of the said Commission; and that if the said Creditors come not in within four Months, then the Commissioners to have power to distribute.

If certain Creditors sue a Commission, and others within four Months or more being Creditors, come before distributi∣on, and will join in the charge of the Commission, and all that belongs to it, and tender their parts, they shall not be refused, but have their equal parts as Creditors. But if any Distribution be made of any part of the Estate, no Cre∣ditors are to be admitted after, that come

not in before, Hobert 287. Hutton 37. Rugles Case. So that they may come in at any time before distribution.

A Merchants Factor refuseth to come* 1.14 in as a Creditor, but claims Goods given to him by the Bankrupt in satisfaction of his Debt, since he became Bankrupt, he shall not have any thing in the Distribu∣tion.

Every Creditor may take notice of* 1.15 the Commission, it being matter of Re∣cord, and so must take care to come in in time, 2 Rep. 26. b. Cullamers Case. But it is a good Custom now to give publick notice in the Gazets, or filing such Notice at Guild-Hall, or the Ex∣change, or such publick places.

The offer of Creditors to be joined,* 1.16 and before they be partakers, is not an effectual offer, without offering to be Contributory to the Charges; but to offer any particular sum is not necessary. Hutton. p. 38.

In Canc. inter Fuller & al’ contra Lance & al’ Hill. 14. Car. 1. A Bankrupt makes an agreement with his Creditors, and af∣ter breaks the same; some of the Credi∣tors take out a Commission, and after seven Months assign the Estate; and o∣ther Creditors who have notice of the Commission, prefer their Bill to have the Agreement performed, or be admitted to an equal dividend, but they were de∣nied relief.

The Form of an Authority to receive Con∣tribution Mony.

MEmorand’, We whose Names are hereunto subscribed, being the major part of the Commissioners, named and Authorised by the King and Queens Majesties Commission, grounded upon the several Statutes made concerning Bankrupts awarded against J. S. do hereby think fit, and order by, and with the Consent of the Creditors of him the said J. S. whose Names are subscribed (tho' this is not necessary) that the said Creditors of J. S. who are all willing to come in and pay Contribution-mony to∣wards the charges of suing forth and pro∣secuting the said Commission, and dis∣covering and recovering of the Estate of the said J. S. Such Creditors that have already, or shall hereafter come in∣to the said Commission in due time, and seek relief thereby, shall and are hereby ordered to pay the sum of—in the pound for Contribution-mony, for every of their several Debts which they claim to be due and owing to them by, and from the said J. S. And we like∣wise further order and think fit, that the said Contribution-mony be paid into the hands of A. B. of &c. who is appointed hereby to receive the same, and to

disburse the same, as he shall be by us directed, and as occasion shall be.

It would be convenient that the Com∣missioners take Bond of the Trea∣surer of the Contribution-mony, to disburse as he shall be by them di∣rected, and to render a due account of all his Receipts, Payments and Disbursements.

Of Distribution, Vide infra.

Notes

• * 1.1

  Conisee.
• * 1.2

  Legatee.
• * 1.3

  Mortgagee▪
• * 1.4

  Aliens.
• * 1.5

  Sureties.
• * 1.6

  Debt not due.
• * 1.7

  Recoverer of Damages.
• * 1.8

  He that hath the Defendants Body in Execu∣tion.
• * 1.9

  Bail.
• * 1.10

  Trusting a Bankrupt.
• * 1.11

  Judgmentees, Conusees and Attachers by Foreign At∣tachment to come in as Creditors for their share.
• * 1.12

  The King.
• * 1.13

  Per Stat. 1 Jac. c. 17.
• * 1.14

  Refusal.
• * 1.15

  Notice of the Commission.
• * 1.16

  Contribution,