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. XII. (Book 12)

Of Pleadings in respect of the Statutes of Bankrupcy by the Debtor or by the Commissioners to Actions brought against them, and what Pleas shall be good, and what not.

IN an Action on Assumpsit for Wares sold; the Defendant pleads such▪ day the Plaintiff became a Bank∣rupt, and yet is so; to which the Plain∣tiff demurred, because he saith not he was a Tradesman, 3 Keb. 134. which should be, Hanslop and Hales; yet the Plea seems to be ill, Vide Case sequent’ and 2 Keb. 32.

In Debt on Obligation, the Defen∣dant* 1.1 pleaded, before the Action brought the Plaintiff became a Bankrupt; to which the Plaintiff demurred. Per Cu∣riam, it's an ill plea; and until assignment be made, the Debtor is defensless: Pay∣ment before Commission sued out is good enough, and so it is before his Debt is assigned; quaere de hoc. Judgment pro Quer’ 3 Keb. 616. Andrews and Spicer. Q.

Det on Obligation for performance of Articles for payment of Mony for Rent; Defendant pleads that the Plaintiff was a Bankrupt, and that the Defendant paid

the Mony to the Assignees of the Com∣missioners of Bankrupcy, Tompsons En∣trys, Fo. 166.

Det on Obligation, on Oyer the Defen∣dant protestando that this Debt was not assigned by the Commissioners of Bank∣rupcy of Holt, for plea saith, that this was not due to the Plaintiff, & alijs Cre∣diroribus of Holt; to which the Plaintiff replied it was so due, and the Defen∣dant demurred specially as double. Twis∣den conceived the Replication ill, and that the Assignment to the Plaintiff should be shewed, that being traversable as well as the Bankrupcy: This Case seems not to be well reported here, there∣fore let us see how it is reported three or four Leaves after. In Det on Obliga∣tion, Defendant pleads that it was in trust for Holt who is a Bankrupt, & vir∣tute* 1.2 Commissionis quibusdam Commissioners, &c. this Debt was assigned to Ashly and Penning & alijs Creditoribus, &c. to which the Defendant demurred specially for doubleness; the Court conceived the Bankrupcy traversable as well as the As∣signment, but the Issue is well enough, 3 Keb. 710, 737. Jonas and Boulton.

Action on the Case, Indebitatus Assump∣sit to pay a Debt assigned by the Com∣missioners of Bankrupts; the Defendant pleaded the Statute of Limitations, and that Causa Actionis non accrevit infra sex* 1.3 Annos. Mr. Stone hath made a Quaere

whether he that comes in as Creditor, and hath a Debt made over unto him by the Commissioners, may not be barred by the Statute of Limitations. Mr. Bil∣linghurst, p. 129. very roundly answers the matter, that he shall be barred. But it seems this is not within the Statute of Limitations: And certainly the Commis∣sion being dated within the six years, the plea should have been infra sex an∣nos, after the Commission. Let us di∣stinguish: If a Commission be not taken out within six years (as it may be so long and longer except in case of Pur∣chasers, for then it must be taken out within the space of five years) then perhaps to this Action, being on Con∣tract, the Defendant may plead the Sta∣tute of Limitations; but if Commission be taken out within the six years, and Assignment made within six years, then the Statute seems to preserve this Debt by the Assignment, it being to relieve Creditors against such base Fraud: But to allow this Knavish Plea to cover for∣mer Knavery of this high Nature, it is intolerable, Vide in 3 Keb. 625, 645. in Coply and Dockmins Case, an Anonymous Case cited by Weston, that it was ad∣judged in C. B. that this Debt is not with∣in the Statute of Limitations.* 1.4

In Det on Bond given to the Plaintiff to perform Covenants between the De∣fendant as Assignee, for the benefit of

the other Creditors, and the Commissi∣oners of Bankrupts, which was, inter alia, to give an account to the other Credi∣tors, or to either of their Assignees on re∣quest: The Plaintiff said he had not gi∣ven him an account in his Replication; (the Defendant having pleaded perfor∣mance in bar) to which the Defendant demurred, because the Covenant is joint as to Creditors, to which the Court in∣clined, there being a subsequent Clause several as to Assignees, 1 Keb. 815. Selby and VValker: But per Keeling, the Cove∣nant is several, according to the interest and subject matter, and each of the Cre∣ditors may call the party to an account, but the Covenant was by the Defendant and his Brother, which was severally to do their endeavours to bring in the Debts, & super requisitio’ eis fact’, they would account; therefore both are bound to account jointly, tho' the Bond is only given by one. Court held it ill, the Plaintiff being no party to the Covenant, p. 843. Mesme Case.

In Trespass by a Bankrupt against a Stranger, he cannot plead the Plaintiff hath done such an Act to make him a Bankrupt, 2 Keb. 32.

In Debt by Assignee of the Commis∣sioners, the Defendant pleads nil debet,* 1.5 and wages his Law; and by the Court he may well, tho' the interest and power to sue in his own name be good to the

Plaintiff by the Statute of Bankrupts: But otherwise if the duty it self had been originally due by the Statute, Noy p. 112. Osborn and Bradshaw. Vide supra.

In Assumpsit, the Defendant pleads that after the Promise, and before the Action, the Plaintiff became a Bankrupt, deny∣ing himself to Creditors, of which the Plaintiff had notice. Per Cur’ payment* 1.6 to a Bankrupt after notice, is void; but if no notice, or if the party be compel∣led to pay by Suit, as here before any Commission is sued out, it's a good dis∣charge. Formerly till Commission sued out, the Debtor ought not to repay tho' he had notice of Bankrupcy, 3 Keb. 231. Prin and Beal.

Of Pleadings to Actions brought against the Commissioners.

IN Trespass against the Commissioners of Bankrupts, if the Plaintiff declares* 1.7 of the entry into his House, the Defen∣dant may not plead not guilty, and give the Special Matter in Evidence; but he ought to plead the Commission of Bank∣rupcy, and all the Special Matter; but* 1.8 if it had been for taking of Goods only, he may plead not guilty generally, Litt. Rep. 356. By the Statute 1 Jac. 15. It is Enacted, That if any Actions of Tres∣pass, or other Suit shall happen hereafter to be brought against any Commissioner autho∣rised

by the Statute made in the 13th of Eliz. for Bankrupts, or any other person or persons having Authority by vertue, or under the Commission, authorising the said Commis∣sioners for the doing or executing any matter by force of the said Statute, or this present Act, that the Defendant or Defendants in any such Action or Suit may plead not guilty, or otherwise justifie that the Act or thing whereof the Plaintiff or Plaintiffs complain∣ed was done by authority of the said Act of 13 Eliz. or in this present Act respectively, without expressing or rehearsal of any other matter or circumstance contained in either of the said Acts, and without enforcing him or them to shew forth their Commission authori∣sing the said Act or thing, whereunto the Plaintiff shall be admitted to reply, that the Defendant did the fact supposed in the De∣claration, of his own wrong, without any such Cause alledged by the said Defendant; whereupon the issue in such Action shall be joined to be tried by twelve men; and up∣on trial of that Issue, the whole matter to be given on both parties in Evidence, ac∣cording to the very truth of the same: And if Verdict upon such Issue shall pass for the De∣fendant, the Defendant to have his Costs.

Now the reason of the difference seems to be, that the Commissioners may plead the General Issue, or any thing done by the Statute of 13 Eliz. and 1 Jac. and neither of those Statutes do authorise the breaking open Houses; but that Au∣thority

is given by 21 Jac. and no such General Pleading is provided for by that Statute.

Action on the Case was brought by* 1.9 the Plaintiff for the breaking his House, and taking his Goods away, by pretence of the said Commission; whereas he was no Bankrupt, per quod he was impaired in his Credit. Defendant pleads the Plaintiff brought an Action of Trespass for the same Trespass against him, and that he recovered therein; It is no Plea, Stiles Rep. 3. 201, 202. Watson & Norbery.

As for the Form of Pleas, Vide postea.

Notes

• * 1.1

  Plea, that the Plaintiff was Bankrupt be∣fore Action brought, ill.
• * 1.2

  Bankrupcy tra∣versable as well as the Assign∣ment.
• * 1.3

  Stat. Limitati∣ons.
• * 1.4

  On Covenant by Assignee to account.
• * 1.5

  Wager of Law.
• * 1.6

  Payment before notice, or Com∣mission sued o••t
• * 1.7

  To the break∣ing the House it must be spe∣cially pleaded.
• * 1.8

  Aliter, As to taking Goods.
• * 1.9

  Former Action of Trespass no Plea to an Acti∣on on the Case.