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.

How, and where the Goods of a Bankrupt, liable to Execution, may be sold by Com∣missioners, and how, and where not.

ABecomes a Bankrupt after an Ex∣tent, and before a Liberate, and the Commissioners sell these Goods to Creditors, Per Cur' they cannot be sold, Croke Car. 106, 149. Audly and Halsey.

This Case is well reported by Mr. Ju∣stice Jones, Rep. 202. Tho' the words of the Statute are, That the Commissioners have Power to sell the Goods which were his at the time that he became a Bankrupt, and altho' he becomes a Bank∣rupt before the Liberate; and altho' the Property remains in the Conusor, un∣til the delivery by the Liberate; yet the Extent had bound the Goods so, that when the Liberate comes it defeats this, and devests the property of the Goods out of the Conusor, as to any mean Action or Incumbrance from the time of the Extent.

The Goods extended before he be∣comes a Bankrupt, and delivered by the Liberate after he became Bankrupt, can∣not be sold, 2 Siderfin. 115. they are in Custodia Legis.

Execution was sued by Ca. Sa. the Mo∣ny levied, and in the Sheriffs hands, and the man became a Bankrupt Per Curiam; the Mony recovered in the Sheriffs hands was not assignable by the Commissioners to the Creditors; for it was quasi in Custodia Legis. The Case was thus, B. and his Wife brought an Action on the Case, for words spoken of the Wife; up∣on not guilty pleaded, and Verdict for the Plaintiff, and 5 l. Damages assessed, and 7 l. Costs, they sue Execution; and after the Mony was levied by the Sheriff, and before the return of the Writ the

Plaintiff became a Bankrupt; and by the Commissioners of Bankrupts, the said 12 l. so recovered, was assigned by the Name of the Money of B. to Blackwell and o∣ther Creditors: The Sheriff brings the Money into Court; the Plaintiff who recovered, prayed to have the Mony delivered to him out of Court; and the said Blackwell and the Creditors pray that the Mony may be delivered to them, according to the Sale and Assign∣ment of the Commissioners: Per Curiam, the Mony in the Sheriffs hand was not assignable, tho' by the Judgment the Damages and Costs were ascertained and turned in Rem Judicatam; for it cannot be said to be the Bankrupts Mony, until it be paid to him; and in the mean time it is in the hands of the Sheriff, and in Custodia Legis: And this Case is the stronger, because it is upon a Ca. Sa. and the Mony paid to the Sheriff to satis∣fie the Enecution; and none may give a Discharge thereof, but the Plaintiff who is party to the Record, and the Assignees are Strangers to the Record; and as they cannot have the benefit thereof, so they cannot acknowledge sa∣tisfaction, Croke Car. 166, 176. Benson and Flower, and Jones, 215.

M. recovered against E. one hundred pounds; the Sheriffs Bayliff takes the Goods upon F••. Fa. Teste 4 Junii. 6 June He whose Goods they were, becomes a

Bankrupt. Commission of Bankrupcy was taken out the 8th of June, the Fi. Fa. was made the 11th of June, and execu∣ted on the Goods the 17th of June. The Plaintiff, as Assignee of the Commissio∣ners, brings Trover: Per Cur. for the De∣fendant upon Special Verdict, and that the Goods were liable from the time of* 1.1 the Teste of the Fi. Fa. and this shall be said Emanatio Brevis; and the Sheriff cannot divine when a Commission will be taken out, 2 Keb. 33. Bayly and Bun∣ning, Siderfin. p. 271. Mesme Case. Per Siderfin, the Goods are liable to Executi∣on from the time of the Teste of the Fi. Fa. and the practice is, that the Bayliff is found guilty, if the party were then a Bankrupt; per Keb. in this Case, the Court agreed a right in the Creditors by the Act of Bankrupcy, and thereby the Goods are bound, tho' the Creditors have no Action till Assignment, Vide Stat.* 1.2 of Frauds and Perjuries, that the proper∣ty of the Goods shall be bound only from the time that such Writ shall be delivered to the Sheriff.

A man brought an Action of Debt on a Bond, and had a Verdict, and before the day in Bank became a Bankrupt; it was moved, that the Debt was assigned over, and prayed to have the Mony brought into the Court, which the Court refused, and adjudged, that Judgment could not be staied, the Assignee of the

Bankrupt being a Stranger, in Com. B. Mod. Rep. cited in Moncks Case, p. 93, and in 3 Keb. p. 1.

On motion for G. Assignee of Com∣missioners to stop having Mony out of Court, the Plaintiff being a Bankrupt since the Judgment; but the Judgment being affirmed before the day of the Commission sued out, the Mony was or∣dered to be delivered to the Plaintiff, no execution being sued out, unless a Speci∣al Sci. Fac. and per Twisden, How can we* 1.3 take notice that he is a Bankrupt? Any execution may be stopped at that rate, by alledging, that there is a Commissi∣on of Bankrupts out against the Plaintiff. If he be a Bankrupt you must take out a Special Sci. Fac. and try the matter, whether he be a Bankrupt or not, which the Court granted; he may bring a Spe∣cial Sci. Fac. as Assignee, or Det on the Judgment, 3 Keb. p. 1. Mod. Rep. 93.

Suppose after Judgment, and before Execution, one becomes a Bankrupt, and the Creditors assign this; and after the Judgment is reversed, quaere who shall make Restitution? I conceive the Cre∣ditors* 1.4 are not compellable, not being Parties to the Record.

In the Case in Dier 67. Stringfellows Case, Tho' the Goods were extended, yet they were not delivered to the Co∣nusee, and the Writ was not returned; and the Writ of Priviledge was for Debt

due to the King, wherein the King hath his Prerogative by the Common Law; and so it differs from Audly and Halseys Case, Croke Car. 148.

The Statute is where an Execution or Extent is served or executed: Per Cur. this is accounted the executing of an Extent, when the Goods be apprised, and the Writ returned, Croke Car. 150. Audly and Halsey, Vide Stat. Frauds and Perju∣ries. So by these Cases, this Vexata Quae∣stio is well setled.

If the Bankrupt convey his Goods, Leases, Chattels to any of his Children or other Person, such Leases, Goods and* 1.5 Chattels shall be sold by such Commis∣sioners, except in two Cases.

1. What shall be conveyed to any of his Children upon Marriage. Or,

2. Upon some Valuable Considera∣tion.

The Statute 21 Jac. Provides, that Goods Attached by Foreign Attachment shall be sold by Commissioners, which proves, that after the Statute 13 Eliz. until the Statute 21 Jac. the Commissi∣oners had no power to meddle with Goods taken upon a Foreign Attachment, yet they are but a pledge to draw the party to answer; and if he appear, the* 1.6 Foreign Attachment is discharged. And therefore before the Statute 21 Jac. If Goods were attached by Foreign At∣tachment in London, and before Reco∣very,

the party becomes a Bankrupt, and after Recovery is had, this should avoid the Sale by the Commissioners; there∣fore to remedy that, the Special Proviso is added in Stat. 21 Jac. that in this Case the Goods shall be in the possession of the Vendee as the Goods of the Bank∣rupt,* 1.7 unless the Goods were seised by the Sheriff before the Party became a Bank∣rupt, tho' they were seised before the Teste of the Commission, yet the Goods are bound by the Bankrupcy, 3 Keb. 480. Bingly and Warcup.

As to Goods Extended after such time* 1.8 as he shall become a Bankrupt, by such as pretend to be Accountants, or indeb∣ted to the King, the Statute directs the Commissioners to examin upon Oath, whe∣ther the said Debt were due to the Accoun∣tant upon any Bargain or Contract originally made between the Accountant and the Bank∣rupt, and his and their Servants: And if it appear the said Contract was originally made with any other person than the Accoun∣tant, or for the use and trust of any other person, then the Commissioners shall Sell such Goods, and their Assignee shall have good Remedy to recover the same: So that if it appear the Original Contract (before he became a Bankrupt) was made between the Accountant and Bankrupt, bona fide, the Extent shall be good, and the Estate shall not be sold by the Commissioners.

As for what Remedy the Assignee shall have against those that shall detain such Goods, it may be by Trover, &c. the same as the Bankrupt might have had, Vide infra.

Notes

• * 1.1

  From what time the Goods liable to Ex∣ecution.
• * 1.2

  Stat▪ of Frauds and Perjuries.
• * 1.3

  S••ii•• Fac.
• * 1.4

  Restitution.
• * 1.5

  Leases and Goods convey∣ed by the Bankrupt.
• * 1.6

  Foreign Attach∣ment.
• * 1.7

  Seis•••••• p•••• She∣riff.
• * 1.8

  Of Goods Ex∣tended on pre∣tence of Ac∣count to the King.