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. IX. (Book 9)

Of the disposal of the Personal Estate, or Goods of the Bankrupt: How and where the Goods of a Bankrupt, liable to Execution may be sold by the Commissioners, and where not: Of Trusts, and Bonds taken in the Bankrupts Name, with several Cases and Resolutions.

PER Stat. 13 Eliz. c. 7. The Com∣missioners have Power to take such Order and Directions by their Dis∣cretions, with the Bankrupts Mony, Goods, Chattels, Wares, Merchandises and Debts, wheresoever they may be found or known, and cause the said Goods, Chattels, Wares Merchandises and Debts to be searched, viewed and appraised to the best value they may, and by Deed Indented and Inrolled, &c. to make sale of them, or otherwise to order the same for true satisfaction and pay∣ment of the said Creditors.

And by another Clause in the said Statute, The Commissioners have power to sell all the Goods and Chattels that the Bankrupt shall purchase, after he became* 1.1 Bankrupt, and all such Goods and Chattels that shall any wise come to him before such time that the Debts due to the Creditors

are fully satisfied and and paid, or otherwise agreed for.

Per Stat. 1 Jac. c. 15. Leases, Goods,* 1.2 Chattels or Debts of the Bankrupt, by him conveyed, or procured to be conveyed or trans∣ferred to any of his Children, or other per∣son or persons, except the same shall be purchased, conveyed or transferred for, or upon Marriage of any of his or her Chil∣dren, both the parties Married being of years of Consent, or some Valuable Consideration,* 1.3 or transfer his Debts into other Mens Names, shall be by the Commissioners Bar∣gained, Sold, Granted, Demised or otherwise Disposed of, in as ample manner, as if the said Bankrupt had been actually seised or possessed thereof, or the Debts were in his own Name of the like Estate or Interest to his or their own use, at such time as he or she became a Bankrupt; and that every such Bargain, Sale and Disposition of the Com∣missioners shall be good and available to all Intents, Constructions and Purposes in the Law against the Offender or Offenders, his Heirs, Executros, Administrators and As∣signs, and such Children and Persons as shall be subject to this Statute, and against all other person and persons, claiming by, from, or under such Offender or Offenders; and such said other persons to whom such Con∣veyance shall be made by the said Bank∣rupt, or by his means or procurement.

Per Stat. 21 Jac. c. 19. If it happen any Lands, &c. Good, Chattels, Debts, or other Estate of any Bankrupt to be extended after* 1.4 such time as he or she became a Bankrupt, by any person or persons, under colour or pre∣tence of his or their being Accountant, or any ways indebted to the Kings Majesty; then shall the Commissioners examin upon Oath, whether the said Debt were due to such Debtor or Accountant, upon any Bar∣gain* 1.5 or Contract originally made between such Accountant and the said Bankrupt, &c. and his or their Servants; and if the said Bargain or Contract was originally made to, and with any other person or persons, then the said Debtor or Accountant; or for the Use or Trust of any other person or persons, then the said Commissioners shall dispose of such Lands, &c. Goods and Chattels, &c. to, and for the use of the Creditors; and that the Order and Disposition of the said Commissioners shall be good against the said Extent; and the Bargainees shall have good Remedy, to have, demand and recover the same against such person or persons as shall detain the same.

And by the said Statute of 21 Jac. c. 19. For that it often falls out, that many persons before they become Bankrupts, do convey their Goods to other Men, upon good Consideration,* 1.6 yet still do keep the same, and are reputed the owners thereof, and dispose the same as

their own: It is Enacted, That if at any time hereafter, any person or persons shall become a Bankrupt, and at such time as they shall so become a Bankrupt, shall by the consent and permission of the true owner and proprietor, have in their possession, order and disposition, any Goods or Chattels, where∣of they shall be reputed owners, and take upon them the Sale, Alteration or Dispositi∣on as Owners, that in every such Case, the said Commissioners or the greater part of them, shall have Power to Sell and Dispose the same, to, and for the benefit of the Creditors, as fully as any other part of the Bankrupts Estate: And for the better payment of Debts, and discouraging men to become Bankrupts, per the same Statute, If the Bankrupt shall grant any* 1.7 Goods, Chattels or Estate unto any person or persons, on condition or power of Redemption at a day to come, then the Commissioners shall assign some person to make tender or payment of the Mony, or other Performance, according to the Nature of the Condition, as fully as the Bankrupt might have done: And after such tender or Payment, shall sell the said Goods and Chattels so conveyed or granted, &c. Vide this Paragraph at large supra.

So that you see the Commissioners have Power to Sell or Dispose the Bank∣rupts Personal Estate, which he had, and was possessed of at the time of his be∣coming a Bankrupt; and also all such

Goods and Chattels which the Bankrupt shall purchase, or which shall come and accrue to him after he became a Bank∣rupt.

Observe, They must be searched, view∣ed and appraised.

Sale of Goods by a Bankrupt, after Commission awarded, is void, albeit the Commissioners be never seised of the Goods, Moore Case 805. Smith and Mills.

This Statute saith, Sale by Commissi∣oners* 1.8 must be by Deed Indented, and that after view of the Goods; yet a Sale by any other Deed, and before the view, is good, 2 Rep. 26. The Case of Bank∣rupts.

The Goods of the Bankrupt lie liable to the Sale of the Commissioners, not∣withstanding the Bankrupt had sold them in Market Overt, this Sale is avoided by* 1.9 relation, Siderfin. p. 272. 2 Keb. 33. in Baly and Bunnings Case.

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* 1.10 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.* 1.11 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* 1.12 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* 1.13 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* 1.14 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* 1.15 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,* 1.16 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* 1.17 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.

Trust. Of other mens Goods, of which the Bank∣rupt is in possession, and reputed Owner: Or Bonds take in his name.

THO' the Bankrupt (before he is a Bankrupt) convey his Goods to other men upon good Consideration, yet if he keep the same, and is reputed Owner thereof, and disposeth of the same as his own, such Goods shall be sold by the Commissioners, and according∣ly hath it been resolved: If one shall to the intent to support the Credit of a Bank∣rupt, suffer him to have his Goods in his Custody, and to dispose of them; this shall be accounted the Goods of the Bank∣rupt, and not of the Owner, Stiles Re∣gister, 48, 49.

In Debt on Bond the Defendant plead∣ed,* 1.18 that the Obligation was made to the Plaintiff, to the use of him and other Creditors of O. and that one of the o∣thers releast; it is an ill Plea, he being a Stranger, and the matter but Equity, 2 Keb. 333. Ward and Ossler.

Bonds.

R. indebted to S. and B. jointly; S. becomes a Bankrupt, and the Com∣missioners assign this Obligation to B. the Assignee must have the same Remedy as the Bankrupt had; therefore this or none, 1 Keb. 167. Bolston and Ratcliff.

If J. be obliged to J. S. and he before* 1.19 Bankrupcy assign the Bond, this is liable to the after-bankrupcy of J. S. being on∣ly suable in his name, 2 Keb. 331. Back∣well and Littcott.

One becomes indebted to a Bankrupt, and he and the Bankrupt became bound for this Mony to L. in Trust for the Bankrupt; a Commission issues, and this Debt is assigned to the Creditor, and good; the Bond being to his use, Vide plus infra, Gerard and Aylmores Case.

Of Goods Pawned.

IF the Bankrupt have conveyed away his Goods upon Redemption, then the Commissioners may assign some per∣son to tender or pay the Mony at the day; and after such tender or payment shall sell the same.

Disposition of Rent.

A Rent-seck, tho' there have been no seisure, shall be sold; Commissio∣ners sell a Rent or Reversion, it may be good without Attornment; it vests by the Statute.

A. makes a Gift in Tail, rendring Rent to him and his Heirs, and dies, the Rent is Arear. B. Disseisor enters and le∣vies a Fine, and five years pass; the Heir of A. is a Bankrupt, who was to receive the Rent: Now this Rent, and the Ar∣rrears may be sold by the Commissio∣ners. Vide infra.

Notes

• * 1.1

  Purchase.
• * 1.2

  Trusts▪
• * 1.3

  Debts transfer∣red in other Mens Names.
• * 1.4

  Extent.
• * 1.5

  Kings Accoun∣tant.
• * 1.6

  Goods transfer∣red, and yet ownership kept on foot.
• * 1.7

  Mortgage, Pawns.
• * 1.8

  Deed Indented. View.
• * 1.9

  Goods sold in Market overt.
• * 1.10

  From what time the Goods liable to Ex∣ecution.
• * 1.11

  Stat▪ of Frauds and Perjuries.
• * 1.12

  S••ii•• Fac.
• * 1.13

  Restitution.
• * 1.14

  Leases and Goods convey∣ed by the Bankrupt.
• * 1.15

  Foreign Attach∣ment.
• * 1.16

  Seis•••••• p•••• She∣riff.
• * 1.17

  Of Goods Ex∣tended on pre∣tence of Ac∣count to the King.
• * 1.18

  Bond in the Bankrupts name.
• * 1.19

  Bond Assigned.