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. I. (Book 1)

Forms of the Affidavit, Petition, and Commission; with some short Re∣marks.

AS soon as you perceive your Debtor hath done or suffer∣ed some Act, whereby he is become a Bankrupt within the Statutes of Bankrupts; in the first place the Creditors must make Affidavit before a Master in Chancery, Ordinary or Extraordinary, to this effect following:

Affidavit to be made before a Master in Chancery, before the Suing ••ut a Com∣mission of Bankrupt.

A. B. of, &c. maketh Oath, that R. B. of the City of L. Merchant, is truly and justly Indebted to this De∣ponent (and others his Creditors) in the sum of 100 l. and upwards; and that he is become a Bankrupt within the true meaning of one or some of the Statutes made against Bankrupts, as this Depo∣nent believeth.

Jurat. A. B.

Then there must be a Petition pre∣sented to the Lord Chancellor, or Lord Keeper, in manner following:

The Form of a Petition to the Lord Chan∣cellor, or Lord Keeper, to grant a Com∣mission of Bankrupts.

In most humble manner shew unto your Lordship,

YOur daily Orators A. B. of, &c. and C. D. of, &c. and W. L. of, &c. as well for themselves, as all other the Cre∣ditors of R. D. of the Parish of, &c. in, &c. Merchant: That whereas the said R. D. using and exercising the Trade of Mer∣chandize,

by way of Bargaining, Ex∣change, Bartering and Chevisance, seek∣ing his Trade of living by Buying and Selling upon good and just Causes, for Wares and Merchandize to him sold and delivered, and also for ready Mony to him Lent, being indebted to your Orators, and others his Creditors, in divers and several sums of Mony, a∣mounting in the whole to the sum of, &c. and upwards: Of late, that is to say, about the Month of November last past, did become Bankrupt within the several Statutes lately made against Bankrupts, to the intent to defraud and hinder your said Orators, and all others his Credi∣tors, of their just Debts and Duties to them due and owing, (that is to say) within the Statute, made in the Parlia∣ment begun and holden at Westminster the second day of April, in the Thir∣teenth year of the Reign of our late Sovereign Lady Queen Elizabeth, con∣cerning Bankrupts; and within the Sta∣tute made in the Parliament begun and holden at Westminster aforesaid, the nine∣teenth day of March, in the first year of the Reign of our late Sovereign Lord King James, of England, France and Ire∣land, and of Scotland the seven and thir∣tieth; Entituled, An Act for the better Relief of the Creditors, against such as shall become Bankrupts: As also within the Statute made in the Parliament▪ begun

and holden at Westminster the nineteenth day of February, in the one and twen∣tieth year of the Reign of our said late Sovereign Lord King James, of England; France and Ireland, and of Scotland the seven and fiftieth; Entituled, An Act for the further description of a Bankrupt, and Relief of the Creditors against such as shall become Bankrupts; or within some or one of them. In tender Consideration whereof, may it please your Lordship, to grant unto your Orators His Maje∣sties most gracious Commission, to be directed to such and so many wise, honest and discreet persons, as to your Lord∣ship shall seem meet; Authorizing them thereby, not only concerning the said Bankrupt, his Body, Lands, Tenements, Freehold and Customary Goods, Debts, and other things whatsoever; but also concerning all other persons, which by concealment, claim, or otherwise, do or shall offend touching the Premisses, or any part thereof, contrary to the true intent and meaning of the same Statutes. To do and execute all and every thing and things whatsoever, as well for and towards satisfaction and payment of the said Creditors, as towards and for all other intents and purposes, according to the Ordinances and Provisions of the same Statutes.

And your Orators shall pray, &c.

Note, The Creditors must name Seven* 3.1 (at the least) Commissioners (whereof Two must be Esquires, for the Quorum) of whom the Lord Chancellor, or Lord Keeper, strikes out Two. This is the usual way; but many times, in Matters of great weight, there are Nine or more Commissioners, and Three or more of the Quorum.

If the Petition (which is to set forth the Time when he became a Bankrupt) do shew that he was a Bankrupt 1st June 18 Jac. and the Commissioners find that he became a Bankrupt 1st November following, yet its well enough; for it sufficeth that he is a Bankrupt, and the Time is not material, so it be before the Date and suing forth the Commis∣sion.

One sole Creditor shall not sue out a* 3.2 Commission; for it ought to be at the Suit of the Creditors; by Mr. Stone. Q. But the daily Practise is the contrary, and so I perceive the Law to be; for it may so happen that the Creditor can∣not have a satisfaction, but by a Com∣mission: As in case the Bankrupt be Te∣nant in Tail of Lands and Tenements, or a Copyholder, which Estates may be sold by the Commissioners; which by no other means can the Creditor have for the satisfaction of his Debt.

The Bond to be entred in to the Lord Chancellor, or Lord Keeper, upon suing out the Commission of Bank∣rupt.

NOverint universi per psentes me I. A. de, &c. teneri & firmit ••••ligari prehonorabili B. &c. Domino Cancellario Anglie, solvend’ eid’ Do∣mino Cancellario, out suo certo At∣tormat Executorib{us}, Administrat, vel Assignat suis: Ad quam quidem so∣lu••onem bene & fidelit faciend’ obligo me Heredes, Executores, & Admini∣stratores m••os firmit {per} psentes. Si∣gillo mco sigillar dat, &c.

THe Condition of this Obligation is such, That if R. B. of the City o•• L. Merchant, be a Bankrupt within all or any the Statutes lately made against Bankrupts, according as the above bound A. B. by his humble Petition, exhibited to the above∣named Lord Chancellor of England hath alledged: Then this Obligation to be void, or else to stand in full force.

I shall add the Form of a Commission, tho' you have it out of the Office, pay∣ing the Fees.

The Commission is in this manner:

WIlliam and Mary, by the Grace of God, King and Queen of Eng∣land, Scotland, France and Ireland, Defen∣ders of the Faith, &c. To our trusty and well-beloved A. B. of E. in Com’, &c. Esq; C. D. of, &c Esq; R. S. T. S. and L. W. Gent. Greeting. Whereas we are informed, that J. R. of K. in, &c. Mer∣chant, using and exercising the Trade of Merchandize, by way of Bargaining, Exchanging, Bartering and Chevisance, seeking his Trade, and of living by buying and selling (such a day and year) did become Bankrupt within the several Statutes made against Bank∣rupts, to the intent to defraud and hin∣der A. B. of, &c. and W. K. of, &c. and others his Creditors of their just Debts and Duties to them due and owing, we minding the due Execution, as well of the Statute touching Orders for Bank∣rupts, in the Parliament begun and holden at Westminster aforesaid, the second day of April, in the thirteenth year of the Reign of our Dear Sister Elizabeth, late Queen of England, made and provided: As of the Statute made in the Parliament, begun and holden at Westminster aforesaid, the 19 day of March, in the first year of the Reign of the late King James the First, of England, France

and Ireland, and of Scotland the 37th; Entituled, An Act for the better Relief of Creditors, against such as shall become Bankrupts. And also the Statute made in the Parliament, begun and holden at Westminster aforesaid, the nineteenth day of February, in the 21th year of the Reign of the said late King James the First, of England, France and Ireland, and of Scotland the 57th; Entituled, An Act for the further description of a Bankrupt, and Relief of Creditors against such as shall become Bankrupts. Upon Trusts of the Wisdoms, Fidelities, Diligence and provident Circumspection which we have conceived in you, do by these presents Name, Assign, Appoint, Constitute and Ordain you our special Commissioners, giving full Power and Authority unto you, Four or Three of you, whereof you the said A. B. or C. D. to be One, according to the same Statutes, and every or any of them, not only con∣cerning the said Bankrupt, his Body, Lands, Tenements, Freehold, and Cu∣stomary Goods, Debts, and other things whatsoever; but also concerning all other persons, which by Concealment, Claim, or otherwise, do or shall offend touching the Premisses, or any part thereof, contrary to the true intent and meaning of the same Statutes, or any of them, to do and execute all and every thing and things whatsoever, as

well for and towards satisfaction and payment of the said Creditors, as to∣wards and for all other intents and pur∣poses, according to the Ordinances and Provision of the said Statutes: Willing and Commanding you, Four or Three of you, whereof you the said A. B. or C. D. to be One, to proceed to the Ac∣complishment and Execution of this our Commission, according to the true intent and meaning of the same Statutes, with all diligence and effect, as our special Trust is in you. Witness our selves at VVestminster the, &c.

If after Seizure, and before Distribu∣tion,* 5.1 all the Commissioners but Two die, or if they of the Quorum die, they can∣not proceed alone; but a New Com∣mission must be awarded, and the New Commissioners may call the Old ones to an Account.

The words in the Statute 1 Jac. c. 15.* 5.2 [For the Charges of the Commission,] are to be extended to all the Charges arising by the suing of it out, and in the Execution of it also. Hutton, fo. 38.

Notes

• * 3.1

  Commissioners, h••w m••n▪
• * 3.2

  Commission sued out by one Creditor.
• * 5.1

  Death of Com∣missioners.
• * 5.2

  Charges of the Commission.