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. XVI. (Book 16)

Of other things to be done, or the Con∣sequentials after Examination, Dis∣covery and Distribution.

Remedy for the Creditors for the Remain∣der of their Debts.

BY the Statute 13 Eliz. cap. 7. It is Enacted, That if the Creditors of the Bankrupt be not fully satisfied, or otherwise contented for their Debts and Duties, by the ways and means before speci∣fied and declared; that then the said Cre∣ditor or Creditors, and every one of them shall, and may have their Remedy for the Recovery and Levying of the residue of their said Debts or Duties, whereof they shall not be fully satisfied, paid or otherwise contented in form aforesaid, against the said Offender or Offenders, in like manner and form as they should or might have had before the making of this Act. And that the said Creditor or Creditors, and every of them, shall be only barred and excluded by vertue of this Act, of, and for every such part and portion of the said Debts and Duties, as shall be paid, satisfied, distributed or de∣livered unto him or them by order of the

said persons, as is aforesaid; and of no more portion or parcel thereof.

Suppose the Assignee of the Commis∣sioners hath sued a Debtor of the Bank∣rupt, and recovered upon Bond made to J. S. and distribution is made to the Cre∣ditors, amongst whom J. S. was one, and he is not satisfied: He sues the Bank∣rupt himself upon the Bond formerly made to him, and which was produced and proved before the Commissioners; in whose name shall he Sue, and how shall he Declare? The Act gives him leave to Sue in like manner and form as he might have done before the ma∣king of this Act: So that I conceive he may Sue in his own Name; but when he Declares, he must confess what part he hath received, but not set forth how, and which way he received it. Q.

To shew how the Law hates a Knave, and favours honest Creditors, I shall set down a short Case, which tho' not very pertinent to the matter in hand, yet it discovers how that a man may in some Cases recover the Remainder of his Mo∣nies, tho' he hath given a Release.

A Scrivener runs away with 2000 l. with which he was intrusted to lend out, and absconds himself; and after some time writes to the party, that if he will take 500 l. of his Mony, and give him a* 1.1 Discharge, he should have it; which he did, not knowing how to come by his

Mony; yet after the Creditor was relie∣ved in Chancery for the rest, notwith∣standing his own Release, Inter Dr. Lake and Deane; for by Lord Egerton, Volenti non fit injuria, si dolo sit inductus ad con∣sentiendum.

Of the Commissioners Account to the Bank∣rupt, and of the Overplus of the Estate, if any be.

BY the Statute 13 Eliz. cap. 7. It is Provided and Enacted, That such of the said Commissioners as shall put the said Commission in execution, shall upon Lawful Request to them made by the said Bankrupt, not only make a true Declaration to the same Bankrupt, of the employing and bestowing of their said Lands, Tenements, Offices, Fees, Goods, Chattels and Debts so paid and satisfied to their said Creditors, but also make payment of the overplus of the same (if any such shall be) to the said Bankrupts, their Executors, Administrators or Assigns.

By the Statute of 1 Jac. c. 15. It is further Enacted, That such of the said Commissioners as shall put the said Commission in execution, shall upon Lawful Request to them made by the said Bankrupt, not only make a true Declaration to the said Bank∣rupt, of employing and bestowing of his, her or their said Lands, Tenements and He∣reditaments,

Offices, Fees, Goods, Wares, Monys, Chattels and Debts, which shall be paid and satisfied to their said Creditors, as is in like Case limited and appointed by the said former Statute, made in 13 Eliz. but also make payment of the overplus of the same, if any such shall be, to the said Bank∣rupts, their Heirs, Executors, Administrators and Assigns; and that the said Bankrupts, after the full satisfaction of the said Credi∣tors, shall have full power and authority to recover and receive the Residue and Remain∣der of the Debts to them owing.

If the Bankrupt die, yet his Executors shall have an Action against the Com∣missioners to account. Quaere, If all the Commissioners die, whether the Execu∣tors, or Executor of the Survivor shall be accountable.

What Remedy the Bankrupt, or Creditor, or others may have in Case of Misdemeaner against the Commissioners.

IF the Commissioners do not pursue the Acts of their Commission, in such Case the party hath no other Re∣medy but to put in a Traverse contrary* 1.2 to the finding of the Commissioners, that he is a Bankrupt, and say he is not a Bankrupt, 8 Rep. 121. For a Certificate of the Commissioners, that a man is a Bankrupt, is no Estopple to the Party;

but that he may aver against this, and Traverse that he is not a Bankrupt: The Commissioners are not Judges, but have only an Authority, and the Party grie∣ved hath no other Remedy, not by Writ of Error or otherwise.

If the Commissioners will not pay a Creditor his rateable part, he shall have his Action of Debt, per Stone. Chancery I conceive will relieve more properly.

A Decree was made 4 Jac. inter Wood and Hayes, to relieve one which had double taken from him (as a Concealer)▪ by vertue of the Statute of Bankrupts, upon indirect dealing by Commissioners in the execution of the Commission.

Note, By the Statute 1 Jac. c. 15. It is Enacted, that after any Commission of Bankrupts sued out, and dealt in by the Commissioners; if the Of∣fender happen to die before Distri∣bution,* 1.3 yet nevertheless the Com∣missioners shall, and may in that Case proceed in Execution in, and upon the said Commission for, and concerning the Offenders Goods, Lands, Tenements, Hereditaments and Debts, in such sort as they might have done, if the Party Of∣fender were living.

Allens Case in Chancery.

EEwards, a Citizen of York, that had* 1.4 born the Office of Sheriff there, be∣ing indebted to Allen, Habersley and others of London, for Wares, became Bankrupt, because he suffered himself to be outlaw'd at the Suit of Mistress Young of York, for Debt.

Allen and Habersly, and some other* 1.5 Creditors of London, by a Petition to Lord Chancelor, procured a Commission upon the Statute of Bankrupts against Edwards to Sir Thomas Bennet, Sir Willi∣am Rumney, Mr. Nicholas Fuller and Mr. Richard Aldworth.

The Commissioners did sell by Deed* 1.6 of Bargain▪ and sale enrolled, all the Bankrupts Lands to Allen and Habersley for 400 l. the Land being then worth 2400 l. but sold it so cheap as 400 l. in* 1.7 respect of Incumbrances, being Mort∣gaged to Alderman Boles his Son, and with a Statute of 2000 l. to Alderman Boles himself, defeazanced to pay the Mortgage Mony, and two Hundred* 1.8 pounds more lent by the Alderman; and all such other Sums as Edwards then owed to Alderman Boles or Smith, or should owe for Wares delivered, or to be deli∣vered within three years following; and it stood also incumbred with a Statute of

1500 l. to Alderman Boles himself defea∣zible, first for 800 l. and after upon 200 l. more lent for 1080 l. (the 80 l. being in∣terest) and it stood also incumbred with a Lease for 80 years of part made to one Cheney; all which Incumbrances were made long before he was Bankrupt and before he became indebted to Allen or any of the Londoners which sued out the Commission.

After this Sale the Commissioners, and* 1.9 Allen, and all the other Creditors that* 1.10 sued out the Commission upon full consi∣deration had of the Estate of the Bank∣rupt, how it stood incumbred with the Mortgage, Statutes and Lease, made agreement with the Bankrupt and his* 1.11 Friends, to this effect, that the Credi∣ditors would take ten shillings in the pound for their due Debts, and Smith and Wood (Wood only being a Creditor that joined not in the Commission) un∣dertook on the behalf of the Bankrupt, to be bound for payment thereof to the Creditors; And it was agreed that Allen and Abersley should convey the Bankrupts Lands to them for their Security, which* 1.12 agreement was certified by the Commis∣sioners; and they did also certifie that Allen after this agreement (being so Godly and Charitable) refused the a∣greement, and sought the advantage of Law to the great loss and hindrance of the rest of the Creditors, and to the utter

undoing of Edwards the Bankrupt, his Wife and Children for ever.

In execution of this Agreement 12 l.* 1.13 10 s. was paid to one of the Creditors, and Books drawn by Mr. Fuller, and in∣grossed ready for perfecting of the assu∣rances.

All which notwithstanding Allen re∣fusing the Agreement with Habersley, pre∣ferred* 1.14 a Bill in Chancery against Ed∣wards, Alderman Boles, Smith, Cheney, Wood and Edwards his Father (a man 80 years old) complaining that the Mort∣gage, Statutes and Lease were all fraudu∣lent, and the Mony being paid, were kept on foot by practise to prejudice the Creditors, and the sale made by the Commissioners.

Edwards, the Bankrupt, Smith and Wood preferred a ••ross Bill against Allen* 1.15 and Habersley▪ for the performance of the Agreement of ten Shillings in the pound, and to convey the Land to Smith and Wood, according to that agreement.

At the hearing of the Cause, upon Al∣lens* 1.16 Bill the Lord Chancellor finding it confessed, that of the Mortgage Mony there was but 30 l. unpaid, ordered that Allen, paying that thirty pound should* 1.17 have the same conveyed to him, and Habersley and Alderman Boles his Son, and the Statute of 2000 l. discharged, which was done accordingly, and a De∣cree made, that Allen and Habersley and

their Heirs should enjoy the Land ac∣cording to the sale of Commissioners, free from these Incumbrances and Charges of Alderman Boles his Statutes of 1500 l. was left to the Law; howbeit upon ano∣ther* 1.18 motion, his Lordship staid the Li∣berate, after the Extent upon that Sta∣tute, and so it rested.

Allen having gotten the Incumbrance* 1.19 thus clear'd by the Court of Chancery, sought to hold the Lands for the 400 l. only, which was worth 2400 l. albeit he had Covenanted with the Commissioners in the Bargain and Sale, that if the Lands were sold for more than for 400 l. with∣in three years, they should pay the over∣plus which it should be sold for above that 400 l. towards satisfaction of Cre∣ditors; and all the Incumbrances being cleared within the three years, as afore∣said, yet would he hold the Land for 400 l. and pay no more for it.

Hillary 7 Jac. Regis.

Allen gets a Commission out of the* 1.20 Chancery to the Sheriffs of York there, to put him in possession of the Land, up∣on the first Decree in Chancery made for him; and Allen with the under She∣riff cast Edwards Children all out of Doors, and altho' the under Sheriff with Tears in his Eyes besought Allen to take com∣passion on them, yet he would not yield to any thing, but turned them out in

Frost and Snow, that they were inforced to sccour themselves in a Mashfat; and when some of the Tenants of the Land would have taken them in and relieved ved them, Allen threatned to turn them* 1.21 out of their Tenements if they did so, and did turn out one of Tenants out of his House who entertained them but one Night.

Also Allen took divers Cattle and Goods that were Edwards Fathers Goods, and not the Bankrupts, as six Kine, &c. and the Old Man suing for them in the Kings Bench, Allen procured an Injun∣ction out of the Chancery, and staid all the Suits so long as the Old Man lived, and who shortly after died.

Edwards and his Wife here at London, following the Suit to be relieved against Allen in July 8 Jac. died both together of the Plague, leaving seven poor Children behind, one sucking at Nurse in York∣shire.

The Lord Chancellor being informed* 1.22 of this extremity by Petition and Affida∣vit, gave direction that the Bill which Edwards, Smith and Wood preferred upon the Agreement of ten Shillings in the pound, should be revived on the behalf of the poor Children; and his Lordship assigned Wood their Gardian, to prose∣cute, and Francis Moor he assigned to be of their Councel in Forma Pauperis.

This Cause coming to hearing, and the Agreement appearing confessed by Allens Answer, and proved by the Certi∣ficate of the Commissioners and divers Witnesses, and the Covetous and uncon∣scionable dealing of Allen appearing plainly by the Covenant which they took of Allen, that Allen should pay the overplus of the value of the Land above the 400 l. if they should be sold for more, and the Unchristian and Uncharitable usage of Allen towards the poor Father∣less and Motherless Children of Edwards being all Infants, not able to help them∣selves considered.

The Lord Chancellor did Decree, that* 1.23 Allen and the rest should be satisfied with ten Shillings in the pound for their Debts, according to their Agreement, certified by the Commissioners, but no abatement of the 400 l. paid for the Land, nor of the thirty pound paid for the Mortgage; and withall, that Allen should have al∣lowance for Costs of Suit, reasonable; and for this purpose his Lordship made a reference to Sir John Tindal to cast up* 1.24 the Estate of the Bankrupt and the Debts, and to certifie what overplus he found for relief of the poor Children.

Sir John Tindal often heard the Cause, and the Allegations of Allen, and his Councel, and in the end made a certi∣ficate* 1.25 of the Estate Real and Personal of the Bankrupt, and of the Debts, and

made all allowances as by the Order was directed, and gave 200 Marks to Allen for Cost of Suit, and 100 Marks to Ha∣bersley, and 70 l. to all the Creditors that sued out the Commission of Bankrupt; and for the residue did purpose in his Opinion to be fit that Allen should keep the Land, and pay the overplus of the value of the Land above the 400 l. or depart with the Land to Smith and Boles, who would pay Allen and the other Creditors according to the Report, and yield the overplus to the Children, a∣mounting to 600 l. or thereabouts.

The Lord Chancellor, upon reading* 1.26 the Report, gave time to Allen to make his election, whether he would keep the Land and pay the Mony, or depart with the Land and receive his Mony.

For that Allen made no Election, but insisted upon the advantage, to have the Land for the 400 l. which was worth 2400 l. and would yield nothing to the poor Children, nor to the Creditors, but dealt so mercilesly with them whose Pa∣rents lost both their lives in following their Suit to be relieved against Allens Unchristian and Barbarous Dealings.

The Lord Chancellor did make De∣cree,* 1.27 that Allen should receive the Mo∣ny mentioned in the Report, which is much more than in Equity is any way due unto him, and convey the Lands to Boles and Smith, two sufficient Men,

who would be bound to pay the Credi∣tors, and Allen also, and yet pay the overplus being 600 l. or thereabouts, a∣mongst the poor Children.

For not performing the Decree Allen is committed.

The pitiful Cries of the Father and* 1.28 the Mother dying, as is aforesaid, and of the poor Orphans, do call to God for relief, and moved the heart of the Chan∣cellor to take compassion upon them, and to take such order as he hath done.

Note, Where Allen in the Bill of In∣dictment* 1.29 setteth forth, that he had two Judgments for his Debt in the Common Pleas, before the Suit in Chancery be∣gun, which Judgments he supposeth to be called into Examination by this Suit and Decree in Chancery against him, contra∣ry to the Laws and Statutes.

To this it is answered, First, That these Judgments were not alledged by Allen in his own Bill against Edwards in Chancery, nor in his Answer to Edwards Bill, nor in any Replication, Rejoinder, Deposition, Report or Motion in Chan∣cery; neither were they so much as spo∣ken of or informed to any Councel or others, and there is no Order in Chance∣ry concerning those Judgments.

Secondly, That these Judgments to be a year after Edwards became a Bank∣rupt, for he was Bankrupt Primo Jacobi,

and the Judgments wore Secundo Ja∣cobi.

Note, That these Judgments stand in force against the Bankrupts Body, or any Lands or Goods which he should after∣wards obtain, and were not disposed by the Commissioners.

Allen himself sued out the Commission of Bankrupt with other Creditors, and was first named in the Petition to the Lord Chancellor for getting the Commis∣sion, and attended in person in executi∣on of that Commission at all meetings, by which he himself did decline from the strength of his Judgments, and sub∣mitted himself to be ordered by the Commissioners for his Debt before any Suit in Chancery begun.

Note, Where Allen by his Bill of In∣dictment supposeth his Freehold to be drawn in question in the Chancery, con∣trary to the Statute in Magna Charta, it is to be answered, that albeit Freeholds* 1.30 have been always ordered in Chancery upon Equity, where the Common Law cannot help the Parties, yet in this par∣ticular Case it is to be observed, that Allen himself was first Plaintiff in the Chancery, and did draw in question the Freehold which then was in Alderman Boles his Son by a Mortgage forfeited, for which Freehold to be conveyed to himself, he obtained the Decree in Chan∣cery, and had it conveyed accordingly

upon matter of Equity (viz.) because there was but 30 l. unpaid of the Mort∣gage Mony.

Therefore if the Chancery did well when it dealt with the Freehold for Allen; why ought not the Chancery upon a new Matter of Equity, make Decree against Allen to depart with the same Freehold again, when he would have Land worth 2400 l. to the defrauding of Creditors and poor Orphans, and in abuse to the Commissioners of Bankrupts and Court of Chancery.

Of Bills of Conformity.

Because Petitions for Composition are mentioned in the Statutes, I shall here add some Orders made in Chancery about the same, and pub∣lished in open Court, Octob. 31. 1620.

THAT no Compulsory Order be granted to Creditors to conform themselves, and agree unto any Rate or Composition at the Suit and Petition of the Debtor or insolvent himself, but on∣ly at the Suit of the Creditors, in imi∣tation and according to the Equity of the Statute of Bankrupts.

That where such Suits are exhibited in the behalf of the Creditors, it be not enough that the Creditors are na∣med in the Bill or Petition; but that there shall be always affixed to the Bill or Petition the agreements of the Cre∣ditors under the Hands and Marks of so many as have agreed, with a recital of the Sums and Times of their particular Debts.

That to the end there may be a ground of Information unto the Court, what the Debts are in truth, which otherwise may be but in shew; there shall always be before any Order is granted, a Re∣ference made to some of the Masters of the Court, or other Commissioners upon due Examination, to certifie the Court what the Debts are in truth, and of what Nature, and upon what Security; before which Masters and Commissio∣ners shall also be heard the Informati∣ons and Allegations of such Creditors as have not compounded.

That no release be given upon any Bill or Suits, except the Debts of the Creditors that have agreed, amount at least to full three parts in four, to be divided of the total of the Debts; and not in these Cases neither, but sparing∣ly, by the Discretion of the Court, up∣on hearing what may be alledged on both sides.

That no Proceedings at Law, in Case of any such Suits be staid against any Sureties of the Insolvent, nor against the Lands or Goods of the Insolvent him∣self in case of Recognizances or Statutes, but only against the person of the In∣solvent.

It was a Saying of the Lord Chan∣cellor Elsmere, that against Usurers, Bankrupts, Perjured Persons, Couseners, &c. Quaelibet presumptio crescit in probati∣onem; and that one Proof, with some presumptions, is sufficient to induce him to Decree against such.

Notes

• * 1.1

  Decree for Mo∣ny against a Mans own Re∣lease.
• * 1.2

  Traverse.
• * 1.3

  Death of the Bankrupt.
• * 1.4

  April 1 Jac. R.
• * 1.5

  Octob. 1 Jàc. R.
• * 1.6

  Dece••••b. 3 Jac.
• * 1.7

  Lands sold by the Commissio∣ners with In∣cumbrances be∣fore he became a Bankrupt.
• * 1.8

  Last Certificate of the Commis∣sioners proved this.
• * 1.9

  May 4. Jac.
• * 1.10

  First Certifi∣cate.
• * 1.11

  Agreement by the Commissio∣ners with the Bankrupt to take 10 s. in pound. 2. Of the Cre∣ditors bound for the payment of it.
• * 1.12

  And the Bank∣rupts Lands conveyed to them for secu∣rity. The Agreement certified by the Commissioners. Refusal to per∣form the Agree∣ment.
• * 1.13

  Depositions prove this.
• * 1.14

  1. One Credi∣tor prefers his Bill, suggesting that the In∣cumbrances were fraudu∣lent.
• * 1.15

  The other Cre∣ditors prefer a Cross Bill to perform the Agreement.
• * 1.16

  Octob. 20. 16 Jac.
• * 1.17

  The Incum∣brances decrced to be dischar∣ged, and the Land to be en∣joyed by the two Creditors.
• * 1.18

  Ahparent.
• * 1.19

  The Covenant proved in the Bargain and Sale. Commissioners sell Land for 400 l. which was worth 2400 l. (because of Incumbran∣ces which were not real) and the Vendee would enjoy it for that against the other Cre∣ditors.
• * 1.20

  By Affidavit of Goland 13 A∣pril 1610. 6 Jac. Vendee gets possession upon the first Decree.
• * 1.21

  Affidavit of weight.
• * 1.22

  A Petition 17 Aug. 1610. 8 Jac. Bill revived to perform the a∣greement of 10 s. in the pound. 8 Jac. 3 Nov. assignment.
• * 1.23

  Agreement De∣creed.
• * 1.24

  Reference to a Master to cast up the Estate and Debts.
• * 1.25

  The Masters Certificate.
• * 1.26

  13 Noc••. 1•• Jac.
• * 1.27

  Decree that the Trustee should receive his own Mony, and de∣part with the Estate.
• * 1.28

  Trustee for not performing the Decree, is com∣mitted.
• * 1.29

  Indictment, for that the Chan∣cery decreed Lands after Judgment at Law.
• * 1.30

  Freehold Lands ordered in Chancery upon Equity, where the Common Law cannot re∣lieve the Par∣ties.