Notes, Cases, and Resolutions upon the Clauses of the said Statutes, relating to the Trade, Profession, or Occupation of such an one as shall be accounted a Bankrupt; and what shall be said a buying and selling within the Statutes.

IT is not buying and selling 1 Note. of Land, but of Personal things, that makes a man a Bankrupt, March Rep. 37.

[Page 13]2. Selling alone will not make a Bank­rupt, unless he also buy, 2 Keb. 487. Nor Buying alone.

3. One single Act, tho' it let a man into a general Dealing, will not make one a Bankrupt. Vid. infra.

4. He that is a Bankrupt must get his living by buying and selling, or the chiefest part thereof. Vid. infra. Except in special Cases.

5. It must be a general Trade by which his livelyhood is got, and not particular Employments. Vid. infra.

Such as live on their Manual Labour Particular Employment. only, as Husband-men, Labourers, bare Handycrafts-men, &c. are not Traders within the Statutes, Cro. Car. 31. But,

Such as buy Wares, and convert them into saleable Commodities, and so get their livelyhood by such buying and selling, may be within the Statutes. As,

A Shoe-maker, that buys Leather and Shoe-maker. sells it in Shoes, may be a Bankrupt, Cro. Car. 31. Crump and Barnes Case.

So of an Iron-monger that buys Rod-Iron Iron-monger. or Bar-Iron, and causeth it to be work'd up into Wares.

So a Naylor, Lock-smith, &c. by the A Trading Smith. same Reason of a Shoe-maker.

A Clothier that buys the Wool, and Clothier. hath it made up into Cloth, may be a Bankrupt; so if he work it into Cloth himself, by the reason of Crump's Case.

[Page 14]A Taylor that makes Garments only Taylor. and as Servant to his Customers, shal [...] not be a Bankrupt. But,

A Sales man, by the reason of Crump▪ Sales-man. Case, may.

A Carpenter in London hath been adjudged Carpenter. a Bankrupt; but not quà [...] Working-Carpenter.

Mr. Stone's Opinion, p. 166. that [...] Shoe-maker, &c. is no Bankrupt, is no [...] Law.

An Inn-holder quà such, is not withi [...] Inn-holder. the Statutes, and may not be a Bankrupt by 3 Justices against Berkly: For th [...] he buy Provisions to be spent in h [...] House; yet he doth not properly sell i [...] but utters it at such Rates as he thin [...] reasonable Gains: And the Guests d [...] not contract or take it at a certain price but they may have it, or refuse it and if he take excessive Rates, he [...] Indictable: And in cases of Inn-keeper Provisions are not only respected, b [...] Furniture of Rooms, Attendants of Ser­vants, &c.

But if an Inn-keeper be a Grazier, he Grazier. may be a Bankrupt, Cro. Car. 548. Crisp and Platt. March Rep. 35, 36. mesme Case And likewise so lately Adjudged in the Kings-Bench, in the Case of Trigg vers Newton, an Inn-keeper at Blossoms-Inn i [...] London.

A Vintner may be a Bankrupt; or [...] Vintner. Brewer. Brewer.

[Page 15]A Farmer, who buyes in Cattle and Farmer. spends some, and sells others, is not a Bankrupt, Cro. Car. 458. March Rep. 35, 36. But,

A Grazier or Drover may be a Bank­rupt; Drover. and whether he graze his own Land or not, alters not the case. Where­fore I wonder that Mr. Stone, p. 165. saith, If he hireth Grounds, and feeds the Cattle, he shall be a Bankrupt; but not if he graze upon his own Freehold. And it hath been since Adjudged to the con­trary.

A Cow-keeper at Islington, was lately Adjudged a Bankrupt.

An Husbandman is not within the Husbandman. Statutes, unless he be a Drover also: Per Baron Denham 3 Car. at Wilts As­sizes.

Any Trading, tho' the Trade be ne­ver so Inferior in it self; yet if they get their living by buying and selling, and deal considerably in it, makes a Bank­rupt, with other acts of Bankrupcy.

One is not a Trader within these Sta­tutes, Leaving off Trade. who hath left his Trade, but sells his Goods lying upon his hands, for the Debts which he hath contracted after­wards; unless that the Debts were con­tracted during the Trade: But,

If such Persons Trade again, and so Trading again. become Indebted, he is a Bankrupt for this; but not for the Debts between. Sir John Harrison and Sir Job Harvey's [Page 16] Case, cited in Sir Anthony Bateman's Case, Siderfin, p. 411. So,

He shall become a Bankrupt for Debts due before he gave over Trading, and continued for new Security taken since he gave over his Trading, Stone Lect. 7.

Discontinuance of Merchandize is not an exemption from the Statute, when the Creditors have taken New Securities.

Therefore, its Resolved, it is not ne­cessary he continue his Trade by buying and selling, to the time that he becomes a Bankrupt; but it sufficeth that he hath used the Trade, and during that time Debts owing when he was a Trader. that he became Indebted, and for that Debt he is now become a Bankrupt. As if a Merchant leave his Trade, and go into the Country for two years, and after he absents himself from his Cre­ditors, by reason of the Debts he owed when he was a Merchant, Mich. 20 Jac. B. R. Hicroft and Hall's Case. And the same was Agreed for Law in Palmer's Rep. 325. in Evidence to a Jury at Kings-Bench.

If one for a time deal in a Trade, and after he forsakes his Trade; but leaves his Stock in the hands of another, and Partner. he hath part of the Gain, and is partaker of the Loss: If such an one after desert and conceal himself, he is a Bankrupt within the Statute, Palmer's Rep. 325. in the Case of Hayler and Hale. Vid. infra.

[Page 17]Sir. A. B. had the 16th part in a Cole­ship, Cole-Marchant which Coleships are victualled and employed by the Owners. But it ap­peared when Sir A. B. purchased the said 16th part, the Ship was indebted to him ( viz.) to Repairs, and it is their custom to repair them upon the Credit of their Bottom, and this Ship had not gained so much as to pay for her repairs. This makes not a Merchant Bankrupt, Si­derfin p. 411. Sir Anthony Batemans Case.

That Sir A. B. imported Goods in his Importation of Goods. own name, is not sufficient, unless he doth issue out the Proceed so imported, as he did employ goods taken in Prize in Revictualling another Ship, which made one a Bankrupt, altho' he was a Gentleman.

A Joint Stock is not sufficient, unless Joint stock. some disposition of it be actually proved as it is in Sir John Wooltenholm's Case, 14 Car. 2. c. 4. So tho' he be Partner of a Coleship, where the Fraight and Own­ership are not distinct, as in Ships Tra­ding to other parts, 2 Keble, 487.

Sir Tho. Littleton, Mr. Papillion, and Mr. Child by contract with King Charles 2. were to victual the Fleet at 8d per di­em a Head, who made an under contract with the Pursers of the Ships (two of which, viz. Mr. Gibson, Mr. Hench were Plaintiffs) to victual at 6d per diem, and gave a Note of 800 l. at 6d per diem; and before this Contract Sir Thomas was [Page 18] no Trader, as was agreed; and per Cu­riam, this Contract to Victual a Fleet is no more than to Table with a private man, which will never make a Trader within this Statute; which looks on ge­neral Particular Em­ployments. Trades by which livelihood is got­ten ordinarily, not on particular em­ployments; for so the King's Butler or Steward, or any other Officer might be a Trader.

2. Altho' Provisions made for the Fleet, be by the King's direction, but applied to other purposes than was contracted, yet this is no more than a particular Command to a man to buy Provisions for that purpose.

3. It was resolved, that if under dis­guise of such contract, Sir Thomas trade with other Merchants under-hand or se­cretly; that shall be a Trading within the Statute. But the selling off a Sur­plusage Selling off a Surplusage. is no more a Trading, than a Gentlemans selling off the Surplusage of Hay; and he must be a Buyer and Seller too, that is within the Acts. It's not sufficient to Buy alone, or Sell alone; and one single Act, tho' it l [...]t a man into a general dealing, will not make a Bank­rupt, [...]ewards▪ Far­mers of Customs no more than a Commission of Ex­cise, or a School-keeper that boards Scho­lars, or Stewards of the Inns of Courts, or Farmers of the Customs, Gibson vers. Tompson. p. 27. Car. 2. B. R.

[Page 19]A Feme Covert Merchant may be a Feme Covert-Merchant and her Husband▪ Bankrupt, and so shall her Husband be; it shall be accounted his folly to suffer his Wife to Trade as such, and the out­lawry of the Husband for the Wives debt shall make him a Bankrupt.

By a Special Provision in 14 Car. 2. c. 14. Noblemen and Gentlemen, not bred up in Trade, that have put in Stocks into the East-India and Guiney Companies. Companies, and are adventurers for put­ting in of Mony or Merchandise into Adventurers▪ the said Companies, or for adventuring or managing the Fishing, called The Royal Fishing Trade, are not to be repu­ted Bankrupts. But persons trading or traficking in any other way or manner, shall be liable to the said Commissions of Bankrupts. In the Turky Company eve­ry man Trades on his own account and estate, and not like the Guiney Company or East-India Company.

Now before this Statute of 14 Car. 2. was made, one Sir John Woolstenholme was A Gentleman▪ Trader. one of the Corporation of the East-India Company, and a Gentleman of 3000 l. per annum, and had a Stock in the Com­pany of his own, and sat in the Com­mittee of the said Company as a Mer­chant in the management of Trade, and did receive at several times the Proceed of his Stock upon returns of Ships, and became indebted to divers persons, and absconded himself. It was held, that [Page 20] tho' he did not get the greatest part of his Living by Buying and Selling, yet his Employment in the said Committee and Trade, was such a Buying and Sel­ling, as brought him within the Statutes of Banckrupts, and that the Statute was to be taken largely for the Creditor against the Bankrupt, and his taking out of his Stock and Goods, and disposing them was a selling within the Stat. of 21 Jac. Hughes grand Abridgment. Sir John Woolstenholms Case. But this Verdict and Judgment against Sir John was re­versed by the said Stat. 14 Car. 2. c. 4. but not to avoid any sale of his Lands made by the Commissioners.

If a man trade in the East-India Com­pany, East India. Africa. and in the African Company, or Guiny Company and abscond, &c. he is not within the proviso of this Statute, but shall be a Bankrupt. A Virginia Mer­chant Virginia. is within the Statute, and so o­thers.

This Description consists of these several parts.

1. ABsconding or withdrawing him­himself, and that is Four Ways.

1. By departing the Realm. Mr. Stone in his Lecture, puts this Case. If a man Departing the Realm. depart the Realm, and long time after his departure becomes non solvent, his absenting himself in such a Case brings him within the Statute of Bankrupts, p. [Page 24] 133. It seems otherwise, For suppose a Wealthy Merchant goes beyond Sea with a good Cargoe, and states his Ac­counts with his Creditors, who know of his Voyage, and are pleased therewith, and he sends over several effects to them, and they trust him in the way of Mer­chant-factor; and after five or seven years space, he by Losses becomes non­solvent, and abides beyond Sea; I con­ceive this is not within the Statute. For the Statute of 17 Eliz. c. 7. saith, That this withdrawing or absenting, &c. must be on purpose to defraud his Cre­ditors; and this can never be construed so; and we must imagin after his non­solvency, he must stay to get up his Eects.

2. Departing from their Dwelling­houses. Departure from his House. It need not be a total departure; for as it is rightly put, If one that hath an House, and yet absents for fear of Arrest, for a time, and then returns, yet he is a Bankrupt. Suppose a man hath no Dwelling-house, but sojourns some­time at one place, and sometime at ano­ther, yet if he appear not at his usual times or places of Trade as formerly, nor can be [...]ound as formerly, this is within the words of 13 Eliz. c. 7. or otherwise absent himself. So a Lodger in a Chamber. Yet Query: For if he sometimes absent himself, and at other Denial to be at home. times when he thinks himself safe from Arrests, appears publickly, as upon the [Page 25] open Exchange, this seems to be a pur­ging of absenting or withdrawing him­self before, as it was held in the Case of Hind the Banker, who was sometimes de­nied at his House, tho' within; yet af­terwards appearing upon the open Ex­change, 'twas held in that Case, that this appearing publickly purged such his de­nial or absence.

3. Keeping their Houses. 20 Jac. B. R. Taylor and Hills Case. It was resolved, Keeping his House. That the keeping within his House, unless to defraud and delay Creditors, makes him not a Bankrupt. But if he conceal him­self for Debt, for which he is sued, and to delay and defraud his Creditors, tho' but for an hour, this makes him a Bank­rupt. Palmers Rep. 325. Haylor and Hall. Yet it is adjudged, Croke, Eliz. Fo. 13.—If a Trader, on notice of Process issued forth against him, keeps in to se­cure himself from the Arrest, and after goeth forth again; and then upon like notice keeps his House, and then goeth forth again, this brings him not within the Statutes; because he useth to go at large, and he may be met with one time or other. But Quere of this Resolution. For if this be Law, then I do not un­derstand the words in 1 Jac. c. 15. or begin to keep his or her House: And also certainly this is a keeping in to delay and hinder Creditors, 17 Eliz. c. 7. If the keeping in be to defraud or delay [Page 26] the payment, he is a Bankrupt: And Serjeant Stone faith well, Fo. 10. If a Trader absents himself for fear of being Arrested by a Writ de Excommunicato Cap. Or if a Decree in Chancery be made against him to execute a Conveyance, and he keeps in, or withdraws himself for fear of being Attached for not perform­ing the Decree; such withdrawing doth not make him a Bankrupt. Aliter, Per­haps if such Decree had been for pay­ment of Mony, as it was held in the Case of one Albyn, a Turky Merchant. If a Church warden (Trader) keeps the Church; that is either a keeping his House, or taking Sanctuary. So if a Miller keep in his Mill, that is a keeping his House.

4. Taking Sanctuary. These were priviledged places formerly, but now the Kings Officers may go into any place. If a Merchant abscond, and list himself a Dragooner in the Kings Service, or buy a Captains place; yet a Commissi­on may go out against him, this is no protection within the the Statute. If a Trader be prest into the King's Service, I conceive it otherwise.

[Page 27]II. The next part of the description is, about the Bankrupts being Arrested and Imprisoned: Which is either

Voluntarie & permissive, and fraudulent, Or, Forced, and so continuing in Prison.

1. Voluntary and permissive, 13 Eliz. Feigned Acti­ons. c. 27. If any such Trader shall suffer him or her self willingly to be Arrested for any Debt, or other thing not grown, or due for Monies delivered, Wares sold, or any other just or lawful Cause, 1 Jac. 15. Or shall willingly or fraudulently procure him or her self to be Arrested, 13 Eliz. c. 7. 1 Jac. c. 15. If any such Trader shall yield him or her self to Prison; this is to be understood of voluntary and feigned Actions; as run­ning into the Kings Bench or Fleet.

Or shall suffer him or her self to be Outlaw [...]. outlawed. 13 Eliz. c. 7. 1 Jac. c. 15. One Outlaw'd in Ireland, is not thereby a Bankrupt here; for that the Record is not pleadable here, Stone 172. Now the Reason of this Clause is, because by the Outlawry the King is intitled to the Goods, and so seems to be a fraud to the Creditors, which the Law abhors: But if the Debtor reverse the Outlawry, be­fore the Commission of Bankrupts sued out, it seems otherwise, as Mr. Billinghurst conjectures. If it be Reversed for want [Page 28] of Proclamations, all done in the mean time by the Commissioners is void.

If the Jury or Special Verdict, find a Bankrupt Outlaw'd, they must find he was outlawed in Fraudem Creditorum, and to that intent, 1 Keb. 11. Bradford's Case.

2. Forced Arrest or Imprisonment, and there the description is this: 1 Jac. c. 15. If such a Trader (as aforesaid) be­ing Arrested for Debt, shall after her or his Arrest lie in Prison six Months or more upon that Arrest, or upon any other Arrest, or De­tention in Prison for Debt, and lie in Pri­son six Months upon such Arrest or Deten­tion, shall be judged a Bankrupt. 21 Jac. c. 19. If any such Trader (as aforesaid) being indebted unto any Person or Persons in the sum of 100 l. or more, shall not pay or otherwise compound for the same within six Months next after the same shall grow due, and the Debtor be arrested for the same; or being Arrested for Debt, shall af­ter his or her Arrest lie in Prison two Months or more upon that or any other Arrest or De­tention in Prison for Debt; or being Arrest­ed for the Sum of 100 l. or more of just Debt or Debts, shall at any time after such Arrest escape out of Prison, or procure his Enlargemement by putting in Common or Hired Bail, shall be adjudged a Bankrupt; and in the said Cases of Arrest, or lying in Prison for such Debt or Debts, or getting out by Common or Hired Bayl from the time of his, or her said first Arrest.

[Page 29]Observe this difference,

If such Trader owe 100 l. and up­wards, and doth not pay or compound for the same, within six Months next af­ter the same shall grow due, and the Debtor shall be Arrested for the same, he is a Bankrupt, per 21 Jac. 19. But a Clause comes after, And being Ar­rested for Debt, shall lie in Prison two Months and more; which includes as well under as above an 100 l. So that if a Statute-trader owes me 100 l. and doth not pay it or compound for it within six Months after its due, and he be Ar­rested for it, this makes him a Bankrupt; and if he owe me 20 l. and shall be Ar­rested for it, and lie in Prison two Months, this makes him a Bankrupt. Durus Sermo. The Act saith, if he do not compound; suppose his Creditors will not, then he must of necessity lie in Pri­son; ( upon any other Arrest or Detention for Debt.) I conceive the meaning of these words are, for Debt originally, and not Debt by reason of a Fine imposed, &c. For the Statute hath respect to Creditors, either by way of Contract, Exchanging, Buying, &c. and not Fines or Amercia­ments, &c. which no way respect Trade. (or shall lie in Prison after his or her Arrest two Months or more, on that or any other Arrest, or Detention in Prison for Debt) on which I will put this Case. One owes 100 l. and is Arrested and Im­prisoned, [Page 30] and in a Fortnights time pays Lying in Pri­son. it; and during that Fortnight another Action of 100 l. is entred against him, and he pays that in a Fortnights time after; and so another Fortnight he pays a third Action off. Quere if this be with­in the Statute lying two Months or more on that or any other Arrest. I conceive not. For by that payment he is dischar­ged from that Debt, and so not in Pri­son on that account.

But the Case which Mr. Billinghurst puts. Suppose (saith he, p.—) a man be Arrested upon a Bond before the day of payment, as by the Custom of London he may, and lie in Prison two Months, &c. The Quere is, whether this be such an Arrest for Debt as is within the Sta­tute. It seems doubtful. For tho' it be debitum in praesenti, and so a release of all Debts shall extend to it; yet it is not properly a Debt within the words or in­tent of the Statute, for that must be such a Debt for which a Cause of Action is given; and there can be no cause of Action properly, till the forfeiture, for the Obligation is guided by the Conditi­on; and the Custom of London will not help it: For the Custom is not, that he shall be Arrested for the Payment of the Mony, but to find better Sureties. And the Statute only intends Detention in Prison for a just Debt really due. But I submit my reason to the Judicious Rea­der.

[Page 31]Mr. Stone puts a Question. If a man remaining in Prison six Months at the Suit of the King, makes him a Bankrupt? It may be Answered, if it be for a Debt, it doth; if on a Criminal Matter it doth not.

The next part of the Description is, 21 Jac. c. 19.

If such a Trader being indebted unto any person or persons, in the Sum of One Hundred Pounds or more, and shall not pay or otherwise compound for the same within six Months next after the same shall grow due, and the Debtor be Arrested for the same, or within six After an Origi­nal Writ sued out. Months next after an Original Writ sued out to recover the said Debt, and notice thereof be given unto him, or left in wri­ting at his or their Dwelling-House, or last place of abode. This is plain, and needs no explanation. It was resolved in the Court of Kings Bench, on a Tryal a­gainst Sir Anthony Bateman, Term. Mich. 1671. That one may become a Bankrupt, by reason of a Suit in the Exchequer, altho' the Statute speaks only of Origi­nal Writs; for the Statutes shall have a beneficial construction. Per Hales.

The next is per Stat. 21 Jac. c. 19.

If such Trader (as aforesaid) being Ar­rested Escape. for the Sum of 100 l. or more of just Debt, shall at any time after such Arrest Common Bayl. escape out of Prison, or procure his Enlarge­ment [Page 32] by Common or Hired Bail, he shall be adjudged a Bankrupt; and in the said Cases of Arrest, or lying in Prison for such Debt or Debts, or getting out by Common or Hired Bail, he shall be adjudged a Bankrupt from the time of his first Arrest.

Suppose one so Arrested lies in Prisons three Terms, and no Declaration comes in against him, and he by course of Law is let out at Common-Bayl, Quere, if he be within the Statute: for that is a Legal Course; and the word (procure) in the Statute is taken in malam partem.

The next is, per 21 Jac.

If such Trader shall by himself, or others Protections. by his procurement, obtain any Protection or Protections, other than such person or per­sons as shall be lawfully protected by the pri­viledge of Parliament, shall be adjudged a Bankrupt.

This is plain, All Protections are with­in this Statute, except Parliament Pro­tections duly obtained.

The next is,

Or if such Trader shall prefer or exhibit Petition to com­pound or pro­cure time. unto his Majesty, his Heirs and Successors, or unto any of the Kings Courts, any Petiti­on or Petitions, Bill or Bills against his or her Creditor or Creditors, or any of them; thereby desiring or endeavouring to compel or enforce them, or any of them to accept less than their just and principal Debts; or to [Page 33] procure time or longer days of payment, than was given at the time of their Original Contracts, shall be adjudged a Bankrupt, Statute 21 Jac. c. 19.

But if the Debtor call his Creditors to­gether, and they grant him License for longer time, this Act makes him not a Bankrupt; this is no fraud, nor intenti­on to defraud.

The last part of the description is about Frauds; and that is in two Paragraphs.

1 Per Stat. 1 Jac. 15. If such Trader Fraud as to Goods. (as aforesaid) shall willingly or fraudulently procure his or her Goods, Mony or Chattels to be Attached or Sequestred, shall be adjudg­ed a Bankrupt. But then note, That this must be of the Parties immediate procu­ring, and not by his meer Default or Latchess. For the words of the Statute are willingly and fraudulently; therefore Mr. Stone, p. 172. is right in this Case. A Merchant, &c. hath an Impropriate Rectory; the Choire is not repaired, the Tythes are sequestred; it is no Sequestra­tion within this Statute; for tho' this is his default in not repairing the Church, yet it is not of his immediate procuring. So in Cases of other Attachments out of any Court.

[Page 34]2. Per Stat. 1 Jac. 15. If any such Tra­der Lands or Goods. shall make, or cause to be made any fraudulent Grant or Conveyance of his, her or their Lands or Tenements, Goods or Chat­tels, to the intent, or whereby his, her or their Creditors, being Subjects born (but Per 21 Jac. it extends to all Strangers) shall or may be defeated or delayed for the reco­very of their just and true Debts, shall be adjudged a Bankrupt.

But for the further explication of this last Paragraph about fraudulent Sales and Conveyances, I shall shew

What Sales and Conveyances, made by the Bankrupt, shall be said to be fraudulent within this Statute, and what not; I mean as to make him a Bankrupt: for as for what Con­veyances shall be adjudged fraudu­lent in this Statute in reference to Purchasers, I shall consider after­wards.

And they may be considered two ways.

• 1. Either such as are made long before he becomes a Bankrupt. Or,
• 2. Such as are made some short time before; for what is done after the time of Bankrupcy is totally void.

But first I shall observe any one single Act of these descriptions is sufficient to [Page 35] make such Trader (as aforesaid) a Bankrupt. And that (as by the Pream­ble of the several Statutes against Bank­rupts it appears) the main intent of the Statutes is to relieve Creditors against Frauds and Deceits; tho' in some of the forementioned descriptions a delaying of Creditors is provided against, as the ly­ing in Prison six Months, or two Months, or not paying or compounding, per 21 Jac. &c. yet Fraud and Cheat lies, or should lie at the bottom of all; and I understand not the distinction of a Bank­rupt by Fraud, and a Bankrupt by Ac­cident, which I find in some of our Books, as the Laws have been expounded.

Any Fraudulent Conveyance within the Stat. 13 Eliz. & 25 Eliz. is within this Clause. But I shall not stand upon the explication of those two Statutes, it being a distinct Head from my present purpose; but shall come to set down some Cases, wherein Conveyances and Sales, made by the Bankrupt, have been adjudged Fraudulent, and which make him such.

If a Trader, finding himself sink in his Estate, and doth make a Conveyance of all his Lands and Goods to Trustees for the payment of his real Debts, and then absents; yet this Conveyance, tho' it may be truly and honestly made [Page 36] and intended, shall not excuse him; for his very absconding makes him a Bank­rupt: But if he abscond not, but declares his intention to pay his Debts, and the Trustees act accordingly, and pay as far as it will go proportionably, this Con­veyance, without other act shall not make him a Bankrupt; for here is no fraud.

Of Settlements voluntary.

R. B 9 Jac. Purchased Copyhold-Lands to him and his Son for their Lives, the Remainder to the Wife in Fee, 11 Jac. he became an Inholder; and about twelve years after, a Commission of Bank­rupcy is awarded against him, and the Commissioners sell the Copyhold-Land. R. B. dies, his Son enters and made a Lease to the Plaintiff, the Defendant en­tered upon him, and he brought Ejectione Firmae.

1. Per Cur. An Inholder is not a Bank­rupt. 2. In this Settlement there does not appear to be fraud apparent, and none being found, the Plaintiff had Judg­ment.

If a man make such a voluntary Set­tlement, and be indebted at that time, he shall be an Offender within this Sta­tute of 13 Eliz. The words in the last Proviso of that Statute are, Provided al­ways, that this Act shall not extend to any [Page 37] Lands, &c. Free or Copyhold, which shall be hereafter assured by any Bankrupt before he became a Bankrupt: So always that such Assurance be made bonà fide, and not to the use of the Bankrupt himself, or his Heirs; and that the Parties to whose use such As­surance shall be made, be not at, or before the making such Assurance, privy or consent­ing to the fraudulent purpose of any such Bankrupt to deceive his Creditors. But if he be not indebted at the time, if he purchase for another, and give unto ano­ther; if no fraud be found, it is not within the Statutes; or else Lands pur­chased forty years before might be de­feated, March. Rep. 34. Crisp. & Platt. this Case is well reported by Croke Car. 548, 549, 550. this Land was given by the Father (six years before he became a Debtor) to his Son, and no fraud found (being on a special Verdict) altho' there be circumstances of a fraud by the sole taking the Profits, untill he became a Bankrupt.

It is reported in Justice Hutton, That Every Deed made to defraud other Cre­ditors (but those to whom it is made) is not sufficient to make one a Bank­rupt. But if he make any Deed after he begins to be a Bankrupt, that shall not bind, per Stat. 1 Jac. which makes him a Bankrupt, that makes a fraudulent Deed: It must not be made long before he becomes a Bankrupt, Hutton. 42, [Page 38] 43. 1 Croke 13. March. 34. The Case was,

A Merchant had made a fraudulent gift of his Goods to the Defendant, but afterwards he went to Church and Ex­change, and did Trade and Com­merce, yet it was contained in the In­denture of the Commissioners to the Plaintiff, that he had made this fraudu­lent Deed, and that he had traded till a day after, at which day he absented him­self, and the Defendant had Judgment in Trover upon this Verdict, Causa qua supra. The Statue 1 Jac. that makes him a Bankrupt that makes such a Deed of Fraud, must not be as this Case is ( viz.) so long before he becomes a Bankrupt, Hutton 42. Cartright & Underhill. But I conceive the Law is contrary to this resolution, and the case is misrepor­ed.

Of fraudulent Deeds and Settlements, in reference to Purchases, vide in­fra.
Of a mans becoming twice a Bankrupt.

Note. In the Case of Jollyser & Horn, Hill. 1657. in Com. B. The Commission was sued out within five years after he became a Bankrupt, and it was confest he was a Bankrupt in 1641. but it was said he became a Bankrupt again in 1649. [Page 39] And Hales puts this difference, that if one become a Bankrupt by a transient Act, as suit, &c. he may again become a Bankrupt; but if by a Continued Act, as Imprisonment, withdrawing himself, &c. he may not become a Bankrupt a­gain; so with this difference you may understand how it is said, once a Bank­rupt and always a Bankrupt.

Who are Creditors within the Statute, and who not.

A Merchant enters into a Statute Conisee. or Recognisance; the Conisee is a Creditor, and must come in and contribute, or else he shall have no relief.

An Executor becomes a Bankrupt, a Legatee. Legatee shall be relieved as a Creditor.

Mortgagee is not a Creditor within Mortgagee▪ the Statute, and need not come in▪ for he is provided for by the Statute. So a a Merchant pledgeth Goods, and be­comes a Bankrupt, the party need not come in.

As well Aliens as Denizens may come Aliens. in as Creditors, per Stat. 21 Jac. c. 19.

[Page 44]A Surety may come in as Creditor. Sureties. O. & B. are Sureties for J. S. for the pay­ment of Mony; and had Counterbonds from J. S. to save them harmless: The Mony was not paid at the day. O. and B. the Sureties pay it. J. S. after be­comes a Bankrupt, Per Curiam. O. & B. are Creditors within the Statutes, Croke, Jac. 127. Osborn & Churchman.

One hath a Debt not yet due, yet he Debt not due. shall be relieved with rateable respect of abatement for the time.

Mr. Stone saith, One that recovers da­mages Recoverer of Damages. in Waste or Trespass, shall not be relieved as a Creditor; Quaere, if that be Law? For in Benson & Flowers Case. Jones Rep. fo. 215. A man recovered Damages in an Action on the Case for Words, and became a Bankrupt, after Judgment, when it is reduced to a cer­tainty, it may be assigned. By the same reason, if the Plaintiff recover Damages against the Defendant, and hath Judg­ment, and the Defendant becomes a Bankrupt, the Plaintiff is a Creditor: It is a Debt due to him, and Action of Debt lies upon the Judgment. Quaere.

The Plaintiff that hath the Defen­dants He that hath the Defendants Body in Execu­tion. Body in Execution, shall not come in to be relieved. But if he have his Body in Execution on a Statute Mer­chant, aliter, per Mr. Stone. Quaere.

A. is Bail for B. either to bring his Bo­dy, Bail. or to pay the Condemnation-mony. [Page 45] B. becomes a Bankrupt, and absents, A. pays the Mony, he may come in as Cre­ditor.

If one trust a Bankrupt, after he be­comes Trusting a Bankrupt. a Bankrupt, he shall not be relie­vable as a Creditor.

Vide infra, The Case of Craven and Knight in Chancery.

A Statute extended upon a Bankrupts Lands, before the Liberate filed, Lord Chancelor ordered to take like composi­tion with other Creditors. Overman a­gainst Wright, Hill. 17 Jac. li. B. fo. 807.

Per Stat. 21 Jac. It is enacted, That Judgmentees, Conusees and Attachers by Foreign At­tachment to come in as Creditors for their share. all, and every Creditor and Creditors, ha­ving security for his, or their Debts, by Judgment, Statute, Recognisance, Specialty with Penalty, or without, or having no se­curity, or having made Attachment in Lon­don, or any other place, by vertue of any Custom, there used, of the Goods and Chattels of any such Bankrupt, whereof there is no Execution or Extent served and executed up­on any the Lands, Tenements, Heredita­ments, Goods, Chattels, and other Estate of such Bankrupt, before such time as he, or she shall, or do become a Bankrupt, shall not be relieved upon any such Judgment, Statute, Recognisance, &c. for any more than a rateable part of their just and due Debts with the other Creditors of the said Bank­rupt, without respect to any such penalty, or [Page 46] greater sum contained in any such Judg­ment, Statute, Recognisance, &c. Of Fo­reign Attachment, Vide infra.

Of Preference.

THE Bankrupt cannot prefer one Creditor before another, 2 Rep. 23.

The King shall be preferred before a The King. private person by the Stat. 21 Jac. But one part shall be allotted to him by the Commissioners, according to the pro­portion that other Creditors have. Sir Simon Nevels Case, Hill. 3. Car. 1. & Pasch. 1650. Pickerings Case.

It was moved in Monck and Claytons Case, 3 Keb. 68. & p. 14. That Mony of the Plaintiffs being a Bankrupt, and an immediate Debtor to the King by re­turns of Monys from the Commissioners of Excise, might not be delivered out of Court, to the Assignee of the Com­missioners of Bankrupts, Sed non allocatur. But the Mony was ruled to be delivered to the Assignee, and that the King may by Scire Fac. recover it against them.

As to the Case of the King, when the King hath Title at Common Law, as by Outlawry, &c. and the Subject Title by Act of Parliament, as in this Case of the Creditors, which shall be preferred, Vide infra, sub Titulo Assignment.

Of Creditors coming in, and of Con­tribution.

IT is Enacted, That Per Stat. 1 Jac. c. 17. it shall be Lawful for any of the Creditors of the said Bank­rupt within four Months after any such Commission shall be sued forth, and until distribution shall be made by the said Com­missioners for the payment of the Bankrupts Debts, as in such Case hath been used, to partake and join with the other Creditors, that shall sue forth any such Commission for satisfaction and payment of his, her or their Debts, to him or them owing, without any Hindrance, Let or Disturbance of any of the same Commissioners, or of any of the other Creditors, or of any such Bankrupts; the same Creditors so coming in to contribute to the Charges of the said Commission; and that if the said Creditors come not in within four Months, then the Commissioners to have power to distribute.

If certain Creditors sue a Commission, and others within four Months or more being Creditors, come before distributi­on, and will join in the charge of the Commission, and all that belongs to it, and tender their parts, they shall not be refused, but have their equal parts as Creditors. But if any Distribution be made of any part of the Estate, no Cre­ditors are to be admitted after, that come [Page 48] not in before, Hobert 287. Hutton 37. Rugles Case. So that they may come in at any time before distribution.

A Merchants Factor refuseth to come Refusal. in as a Creditor, but claims Goods given to him by the Bankrupt in satisfaction of his Debt, since he became Bankrupt, he shall not have any thing in the Distribu­tion.

Every Creditor may take notice of Notice of the Commission. the Commission, it being matter of Re­cord, and so must take care to come in in time, 2 Rep. 26. b. Cullamers Case. But it is a good Custom now to give publick notice in the Gazets, or filing such Notice at Guild-Hall, or the Ex­change, or such publick places.

The offer of Creditors to be joined, Contribution, and before they be partakers, is not an effectual offer, without offering to be Contributory to the Charges; but to offer any particular sum is not necessary. Hutton. p. 38.

In Canc. inter Fuller & al’ contra Lance & al’ Hill. 14. Car. 1. A Bankrupt makes an agreement with his Creditors, and af­ter breaks the same; some of the Credi­tors take out a Commission, and after seven Months assign the Estate; and o­ther Creditors who have notice of the Commission, prefer their Bill to have the Agreement performed, or be admitted to an equal dividend, but they were de­nied relief.

The Form of an Authority to receive Con­tribution Mony.

MEmorand’, We whose Names are hereunto subscribed, being the major part of the Commissioners, named and Authorised by the King and Queens Majesties Commission, grounded upon the several Statutes made concerning Bankrupts awarded against J. S. do hereby think fit, and order by, and with the Consent of the Creditors of him the said J. S. whose Names are subscribed ( tho' this is not necessary) that the said Creditors of J. S. who are all willing to come in and pay Contribution-mony to­wards the charges of suing forth and pro­secuting the said Commission, and dis­covering and recovering of the Estate of the said J. S. Such Creditors that have already, or shall hereafter come in­to the said Commission in due time, and seek relief thereby, shall and are hereby ordered to pay the sum of—in the pound for Contribution-mony, for every of their several Debts which they claim to be due and owing to them by, and from the said J. S. And we like­wise further order and think fit, that the said Contribution-mony be paid into the hands of A. B. of &c. who is appointed hereby to receive the same, and to [Page 50] disburse the same, as he shall be by us directed, and as occasion shall be.

It would be convenient that the Com­missioners take Bond of the Trea­surer of the Contribution-mony, to disburse as he shall be by them di­rected, and to render a due account of all his Receipts, Payments and Disbursements.

Of Distribution, Vide infra.

The Stile of the Depositions.

EXaminations and Depositions of Wit­nesses, and other Proceedings, had taken and executed the day of, &c. in the Second Year of the Reign, &c. Anno. Dom. and at other times and places by Adjournment by W. W. Esq S. M. and C. L. by Vertue of the King and Queens Commission of Bankrupts under the Great Seal of England (ground­ed upon the several Statutes made con­cerning Bankrupts) bearing Date at Westminster the day of &c. and a­warded against J. L. of &c. and direct­ed to W. W. Esq R. P. Esq S. M. L. C. and A. B. Gent. Commissioners thereby appointed for the Execution thereof, or any four or three of them as followeth.

After the Depositions of the Witnes­ses to the Trade or Profession, and to the Offence or Acts committed or suffer­ed; sometimes the Commissioners sign a short Memorandum to this purpose.

Upon the Evidence and Examinations Declaring him a Bankrupt. aforesaid, We whose Names are subscri­bed, being the major part of the Com­missioners appointed for the execution of this Commission, do conceive that the aforesaid T. L. the day, &c. was, and [Page 54] did become a Bankrupt within all, or some of the Statutes made concerning Bankrupts; and accordingly we declare him to he a Bankrupt, and to have been so from that time.

But the Commissioners are generally cautious in declaring the Bankrupcy from a certain time, but leave it to a Trial at Law, in case there be any Question or Doubt of it; and this for their own se­curity against Actions that may be brought against them.

Note. The declaring of the Commis­sioners whether he be a Bankrupt or not, doth not acquit him or charge him, unless in truth it were so. 2 Siderfin, 176.

Then let the Commissioners issue out their Inhibition to all persons who are, or have been Debtors to the Bankrupt, or have had dealings with him, or have any of his Goods and Effects in their hands, not to pay any of their Debts, or deliver any of the Goods to him, or his Order. The Form of which Inhibition you may soon frame, or repair to a Ga­zett.

It is convenient to fix this in some publick place of the Town or Towns ad­jacent where the Bankrupt lived; and let them give notice to the Creditors to prove their Debts.

[Page 55]As to the proof of Debts. The Com­missioners Proof of Debts. must swear the Creditors which will come in, of the Truth and Value of the Debts due to them.

Having served those Persons you in­tend for Witnesses with this, leave an Abstract of it in writing with them severally. As thus,

Commissioners commit one to the Goal for refusing to answer Interrogatories for the escape of the Committee; Action is brought against the Goaler. The Acti­on lies.

There were three exceptions to the Declaration.

• 1. Because it's said the Lord Chance­lor dedit plenam Potestatem, which is not good, for his Office is Ministerial, and the Statute gives the Power; but per Curiam, the Declaration is good; for it is per Commissionem dedit, and it is also juxta Statut.
• 2. Exception, it is alledged the Defen­dant suffered him to escape, and he doth not say he was not satisfied. Per Cur. it is good, and shall be intended he is not sa­tisfied, and the escape is the Tort.
• 3. It is alledged the Commissioners offered Interrogatories to him, and it is not shewed what they were. But this was over-ruled, and Judgment pro Quer. 1 Rol. Rep. 47. Barnes and Cary against the Sheriff of Bristol.

Commissioners Power.

1. As to the Bankrupt himself.

To cause him to appear

• By Proclamation.
• By breaking up Houses.

Per Stat. 1 Jac. c. 15. ‘The said Com­missioners may call before them, or the [Page 63] major part of them the said Bankrupt; and if upon lawful warning left or Warning. made in Writing at three several times, at the dwelling-place or House where the said Bankrupt, his Wife, or Fami­ly for the most part of his abode did Lodge, or remain within one year next before he, she or they became Bank­rupt, the said Bankrupt shall not appear before the said Commissioners, or the greater part of them, that then, and thenceforth it shall be Lawful for the greater number of the said Commissio­ners to appoint, to proclaim the said Proclaim. party a Bankrupt, at such publick place or places where the said Commissioners shall think meet, warning him, her or them to appear before them upon the said Commission at some time appoint­ed. And that if upon such several Pro­clamations made in some publick place, the party offending yield not his Body, &c. the Commissioners may award a Warrant to such fit persons as they Warrant to Apprehend. think meet, to apprehend the Body or Bodies of such Offender, and to bring him before the said Commissioners, wheresoever the said party or parties offending may be found in place privi­ledged, or not, to be examined by the said Commissioners, or the greatest part of them.’

[Page 64]After notice left in writing three se­veral times as the Statute directs; then the Commissioners may pro­ceed to Proclamation.

The Commissionrs Power in breaking up Houses.

BY the Stat. 21 Jac. c. 29. It is enacted, ‘That in the execution of the said Commission, it shall be Lawful to, and for the said Commissioners, or the greater part of them, or any other Per­son or Persons, Officer or Officers, by them, or the greater part of them, to be deputed and appointed by their War­rant or Warrants under their Hands [Page 65] and Seals, to break open the House or Houses, Chambers, Shops, Warehouses, Doors, Trunks or Chests of the said Bankrupt, where the said Bankrupt or any of his or her Goods or Estate shall be, or reputed to be; and to seise upon, and order the Body, Goods, Chattels, ready Mony, and other Estate of such Bankrupt, as by the said former Laws are limited and appointed, whether it be by Imprisonment of his or her Bo­dy, or otherwise as the said Commissio­ners, or the greater part of them shall think meet.’

The Commissioners may break open the House of a Bankrupt for Debt of the Debtor; and if the Bankrupt convey his Goods to his Neighbours House, the Commissioners may not, but the Sheriff may break open the House, because he is a sworn Officer of the Kings. The Commissioners may break open the Booth of another to come to the Bankrupts Goods, per Mr. Barckdale, Lect. Lincolns-Inn, 1627. But Quaere if the Commissi­oners do not now break open any House, Shop or Room where the Bankrupt or his Goods are, tho' they are in the House of a Stranger, Sed Cave, for this part of the Statute is very penal, and shall be ta­ken strictly. And possibly a Judge at a Trial may think that to be Law, which upon mature reflexion appears not to be so.

The Commissioners Power concerning the Bankrupts Body, and concerning the Bankrupts Wife.

The words of the Statutes concerning this are as follow.

PER Stat. 13 Eliz. c. 7. It is enacted, ‘That the Commissioners by vertue of that Act, and of such Commission, shall have full Power and Authority to take by their Discretions such Or­der and Direction with the Body and Bodies of such person, where­soever he or she may be had, either in his or her House or Houses, Sanctuary or elsewhere, as well by Imprisonment of his or her Body or Bodies, as also with all his or her Lands, &c.’

Per Stat. 1 Jac. c. 15. It is enacted, ‘That if upon Lawful Warning or No­tice left, or made in Writing three se­veral times at the Dwelling House, &c. (vide supra) the Bankrupt shall not ap­pear, then they may make Proclamati­on Proclamation. ( prout supra) and if then the Bank­rupt appear not, then the Commissioners are impowred to award a Warrant to Warrant. such sit Person or Persons as they think meet, to apprehend the Body of such Offender, and to bring him, her or [Page 67] them so offending before the said Com­missioners, wheresoever the Parties so Offending may be found in place pri­viledged or not, to be examined by the said Commissioners, or the greater part of them. And if therein the Offender or Offenders shall refuse to be exami­ned, or refuse to answer fully to every Interrogatory, to him, her or them to be administred by the said Commissi­oners, or the greater part of them, it shall be lawful for the said Commissio­ners, or the greater part of them, to commit the said Offender or Offenders to some close or strait Imprisonment, Imprisonment. there to remain until he, she or they better conform him or her self.’

And by the Stat. 21 Jac. c. 19. It is Enacted, ‘That after such time as any Person shall by the said Commissioners, executing the said Commission, or the greater part of them, be lawfully ad­judged or declared to be a Bankrupt; the said Commissioners, executing such Commission, shall have Power and Au­thority to examin upon Oath, the Wife Wife Examined and Wives of all and every such Bank­rupt, for the finding out and disco­vering of the Estate and Estates, Goods and Chattels of such Bankrupt or Bank­rupts, concealed, kept or disposed of by such Wife or Wives, in their own Per­son and Persons, or by their own Act [Page 68] or Means, or by any other Person or Persons. And that she and they, the said Wife and Wives shall incur such danger and penalty for not coming be­fore the said Commissioners, or for re­fusing to be sworn and examined, or for not disclosing the truth upon her or their examination, as in and by the said former Laws, or either of them is already made and provided against any other Person or Persons in the like Cases.’

So that by this Law the Wise must be summoned to come before the Com­missioners, and if she come not, or refuse to be sworn, they may im­prison her as well as her Husband: So likewise if she refuse to discover the truth.

A Bankrupt was committed to the Fleet, the Warrant to the Warden of the Fleet was, to receive and keep in Prison, to answer and to satisfie all such matters as shall be objected against him. The Question was, If the Commissioners may license him to go at large to treat a­bout his Debts. Per Cur. If the Warrant had been that the party should have been in Execution, then he could not be en­larged; but the Court advised them to take security, lest he should withdraw himself. But if one had Judgment against a Bankrupt, and upon an Habeas Corpus [Page 69] brought, he is committed in Execution, without a Cap’ Utlagat’ then the Com­missioners cannot enlarge him, Noy 140. Edwards▪ Case.

By Stat. 21 Jac. c. 19. It is Enacted, ‘That if any Bankrupt, upon his or her Ex­amination or Examinations to be taken before the said Commissioners executing the said Commission, be found fraudu­lently or deceitfully to have conveyed The Bankrupts fraudulent con­veyance away of his Goods. away his or her Goods, Chattels, Lands, Tenements, Offices, Fees, Rents or An­nuities, or other Estate, or any part thereof, to the value of 20 s. or above, to the end and purpose to hinder the execution of this Statute, or of any other the aforesaid Statutes, or thereby to defraud, delay or hinder his or her Creditors of the same, and shall not upon his or her examination discover unto the said Commissioners, and (if it lie in his or her power) deliver unto the said Commissioners all that Estate, Goods and Chattels, so fraudu­lently and deceitfully conveyed away, as aforesaid, or by him or her, his or her means kept or detained from the said Commissioners, or that cannot make it appear unto the said Commissioners, that he or she hath sustained some casu­al loss, whereby he or she is disabled to pay, what he or she then owed, shall or may be indicted for such fraud or Indictment▪ [Page 70] abuse, at the Assises or General Sessions, to be holden before the Judges of Assise, or Justices of the Peace of the County or Place where he or she shall become Bankrupt: And if upon such Indict­ment or Indictments, the Bankrupt be thereof convicted, he or she so convict­ed, shall be set upon the Pillory in some Pillory. publick place, for the space of two hours, and have one of his or her Ears nailed to the Pillory, and cut off.’

Of the Examina­tion of the• Bankrupt. , • his Wife. , and • other Persons as Witnes­ses, Concealers, &c. And of their refusal to swear and discover the Truth, and the Consequence.

BY Stat. 1 Jac. c. 15 If upon five several Proclamations the Bankrupt appear not, the Commissioners may award a Warrant to apprehend his Body, and to bring him before the said Commissioners wheresoever he may be found, to be ex­amined by the Commissioners, prout prius more at large.

And that it shall be lawful for the said Commissioners, or the greater part of them, to examin the said Offender or Offenders upon such Interrogatories touching the Lands, Interrogatories. Tenements, Goods, Chattels, Debts, Bills, [Page 71] Bonds, Books of Accounts, and such other things as may tend to disclose his, her or their Estate, or the secret Grants, Convey­ances, Eloyning of his or their Lands, Tene­ments, Goods, Mony and Debts, as they shall think meet: And if the Bankrupt shall re­fuse to be examined, or to answer fully to every Interrogatory, that then he shall be committed to Prison, prout supra.

By Stat. 21 Jac. c. 19. The Commissi­oners have Power to examine the Bank­rupts Wife upon Oath; and if she come not, or refuse to be sworn, then to in­cur the like penalty with others, prout supra more at large.

Of the Examination of Witnesses, and others, for the discovery of the Bankrupts Estate Real and Personal, and his Debts, and the penalty for refusing to be sworn and examined, or to discover.

PER Stat. 13 Eliz. c. 7. It is Enacted,

Per Stat. 1 Jac. c. 15. For a further in­forcement for discovery of the Bank­rupts Estate, by Examination of Trustees, Concealers, or of such that have Coni­sance of his Estate, according to the Concealers. Statute of 13 Eliz. It is Enacted, ‘That if any person or persons, being known, supposed or suspected to have or detain any part of the Lands, Tenements or Hereditaments, Goods, Chattels or Debts of the said Bankrupt, or to be indebted to, or for the benefit of the said Bankrupt, shall after lawful warn­ing to the said person or persons given, to come before the said Commissioners, or the greater part of them, to be ex­amined according to the intent of the said Statute, refuse to come, or shall not come before the said Commissioners at the time appointed, having no law­ful impediment, such as shall be admit­ted and allowed of by the said Com­missioners or the major part of them, and which shall be then signified or [Page 75] made known to the said Commissioners at the time of their assembly; or that any such person or persons, having knowledge or warning of any other as­sembly or meeting of the said Com­missioners again, shall not come and ap­pear Refusal to ap­pear, or an­swer, or dis­close. before them at such time as he or she lawfully may come, having no such lawful impediment as shall then be made known to the said Commissioners, and by them admitted and allowed of as aforesaid, or being come before them, shall refuse to be sworn, and to make answer to such Interrogaorties as shall be administred unto him or them, accord­ing to the true intent and meaning of the said Statute made in the 13 Eliz. or of this present Act, That then it shall be lawful for the said Commissioners to commit to such Ward or Prison, as to them or the major part shall be thought meet, all such person and persons as shall so refuse to be sworn, and make answer to such Interrogatories as shall be so ministred as aforesaid; and also to direct their Warrants to such person or persons, as to them or the greater part of them shall be thought meet, to apprehend and arrest such person and persons as shall refuse to appear before them as aforesaid, and to bring him, her or them before the said Commissioners or the greater part of them, to be exami­ned, as abovesaid; and upon his, her [Page 76] or their refusal to come, or to be exa­mined before the said Commissioners, as aforesaid, to commit the said party so refusing, to such Prisons as the said Commissioners or the greater part of them shall think meet, there to remain without Bail or Mainprise, until such time as the said party so refusing to come, or to be sworn to answer before the said Commissioners, shall submit him or her self to the said Commissioners, and be by them examined according to the true intent of the said Statute, and of this present Act.’

Note. By Stat. 1 Jac. c. 15. It is pro­vided, Witnesses. Charges. That such Witnesses as shall be sent for, shall have such costs and char­ges as the Commissioners in their discre­tion shall think fit, the same to be ratea­bly born by the Creditors according to the proportion of their Debts.

Per Stat. 21 Jac. 15. The Commissio­ners may examine upon Oath, or by any other ways or means, as to them shall seem meet, any person or persons for the finding out and discovery of the Truth and certainty of the several Debts due and owing to all such Creditor or Credi­tors, as shall seek relief by the Commissi­on.

Two refuse to be examined, and the Commissioners make a joint Commit­ment, it's ill; and it was quousque they [Page 77] conform, and upon return of the Habeas Corpus, it is not averred that they were obstinate, 29 Car. 2. B. R. Penrice vers. Wing.

Note. Action on the Case lies against a Sheriff for suffering one to escape, who was committed by the Commissioners of Bankrupts, because he refused to be exa­mined, 1 Roll. Rep. 47. More 834.——The Case of the Sheriffs of Bristol, Vide su­pra.

The Commissioners committed one Jeakile for refusing to swear upon a Com­mission against Thompson. Now he did not refuse to swear, but had sworn he had none of the Bankrupt Thompsons Estate in his hands, but he would not an­swer whether any of Thompsons Estate came to his hands before the Commssi­on sued out, &c. having received his own Debt before, nor per Curiam is he compellable to swear so, upon 1 Jac. c. 15. and then he was committed by A. B. Commissioners, for refusing to swear, &c. whereas the Commission was to A. B. and others, it appears not that A. and B. were a majority or a Quorum, which is ill, 3 Keb. 837. Rex vers. Jeakill.

Of Perjury,• By the Bankrupt, , and • Witnesses, Concealers and others, and the Penalties. 

1 Jac. c. 15. ‘IF upon the Bankrupts examination it appears that he or she, or they have committed any wilful or corrupt Perjury, tending to the hurt or damage of the Creditors of the said Bankrupt, to the value of 10 l. of Lawful Mony of England or above, the party so offending shall or may be thereof indicted in any of the King's Majesties Courts of Record, and being lawfully corrected thereof, shall stand upon the Pillory in some publick place, by the space of two hours, and have one of his Ears nailed to the Pillo­ry, and cut off.’ ‘And if any other person or persons, other than the Bankrupt, either by sub­ornation, unlawful procurement, sini­ster perswasion, or means of any others, or by his own Act, consent or agreement shall wilfully and corruptly commit any manner of wilful perjury by his deposition to be taken before the said Commissioners, or the greater part of them, as aforesaid, that then the Par­ties so offending, and all, and every person and persons that shall unlawful­ly and corruptly procure any such un­lawful, [Page 79] wilful and corrupt Perjury, shall or may therefore be indicted in any of the Kings Majesties Courts of Record; and after his or their conviction there­of, shall incur such forfeitures, and re­ceive and suffer such pains and punish­ments as are limited by the Statute con­cerning perjury, in the 5th Year of the reign of Queen Elizabeth.’

The punishment by the said Statute is, The Perjured Person shall forfeit 20 l. and indure half an years Imprisonment without Bail or Mainprize, and his Oath never after to be received. And if he hath no Goods or Lands of that value, then to be set in the Pillory in some Mar­ket Town, and to have both his Ears nail'd, and to be disabled to be a Wit­ness in any Court, 5 Eliz. c. 9. And by the same Statute the procurers of Perju­ry are to forfeit 40 l. and if they have not Estate of that value, then Imprison­ment for half a year, and Pillory, and to be admitted no Witness in any Court of Record.

Of Forfeitures on these Acts, and how to be disposed.

PER Stat. 13 Eliz. c. 7. The Com­missioners are impowred to call be­fore them all such Persons as are known, supposed or suspected to have any Goods, Wares, &c. in his or their Custody or Occupation, &c. and to examine them; and if such person or persons upon such examination, do not disclose, and plain­ly declare and shew the whole Truth of the Premisses, &c. ut supra, shall lose and forfeit double the value of all such Goods, &c. which forfeitures shall be levied by the said Commissioners of the Lands, Tenements, Hereditaments, Goods and Chattels of such persons so denying to swear, or not disclosing the whole Truth, by such ways and means, and in such manner and form as is before limited and appointed for the principal Of­fender or Offenders, Debtor or Debtors; and the said forfeitures to be distributed or im­ployed for the satisfaction and payment of the Debts of the said Creditors, &c. prout supra.

And by the said Statute of 13 Eliz. c. 7. It is Enacted, That if at any time before, or after that any such person becomes a Bankrupt, any persons do fraudulently, by Covin or Collusion, claim, demand, recover, possess or detain any Debts, Duties, Goods [Page 81] Chattels, Lands or Tenements, by Writing, Trust or otherwise, which were, or shall be due, belonging or appertaining to any such Offender, other than such as he or they can and do prove to be due by Right and Consci­ence, for Mony paid, Wares delivered, &c. before the Commissioners, &c. that then eve­ry such person (Concealer, &c.) shall for­feit and lose double as much as he or they shall so claim, demand, detain or possess, which said forfeiture shall be levied, reco­vered and imployed in manner and form as is afore rehearsed.

Provided also, and be it further Enacted, That if it shall fortune, the Creditors to be satisfied, and paid off their Debts and Du­ties, of, or with the proper Lands, Tene­ments, Goods, Chattels and Debts of the said Bankrupts, or of, or with the same, and some part of the forfeitures of the said double values, to be forfeited as is aforesaid, and that there shall remain an overplus of the said forfeitures, of the said double values; That then the one moiety of the said over­plus, of the said forfeitures of the double values so remaining, shall be by the said Commissioners so executing the said Com­mission within convenient time after the le­vying thereof, paid unto the Queens Maje­sty, her Heirs and Successors, and the other moiety thereof shall be by the said Commissi­oners employed and distributed to, and a­mongst the Poor within the Hospitals, in [Page 82] every City, Town or County where any such Bankrupt shall happen to be.

Per Stat. 1 Jac. c. 15. It is Enacted, That all and every Sum and Sums of Mony, which shall be forfeited by force of this said Act, shall be sued for, and recovered by the said Creditors only, or any of them that will sue for the same, by Action of Debt, Bill, Plaint or Information in any of the Kings Majesties Courts of Record; and the Sum or Sums of Mony so recovered, the Charges of Suit being deducted, shall be distributed and divided towards the payment of the said Creditors of the Bankrupt.

• If persons suspected to have Goods, &c. of the Bankrupt, do not upon their Examination discover the whole Truth, they forfeit double the value of the Goods.
• If persons fraudulently claim, detain, &c. any Lands, Debts, Duties, Wares, Goods, &c. of the Bank­rupt, either before or after he be­comes a Bankrupt, shall lose double as much as they shall so claim, &c.
• He that is guilty of Perjury, in his Examination, shall forfeit 20 l. and he that is guilty of Subornation of Perjury, shall forfeit 40 l. besides o­ther Penalties. Vide supra.

Interrogatories.

AS to Interrogatories, they are to be framed according to the matters to be examined to; tho' some will have ready all the general Interrogatories that will fit the Examinations throughout all the Statutes. Some Commissioners a­gain will not examine by Iterrogatories at all, for fear of some leading Questi­ons may make Witnesses frame Evasions. But I cannot commend this way, it be­ing a sort of careless behaviour, and too slight for such a weighty matter as this, considering the Penalties attending the Offenders against the Statutes. Besides, at a Trial, Depositions may be made use of as Evidence (especially against the party himself, or in case of the Death of Witnesses) and to read a Deposition without referring to Interrogatories, is to judge upon an Answer without know­ing the state of the Question. I had thought to have inserted here the Forms of some Comprehensive Interrogatories, but there is such variety of Examination in the executing this Commission, that I shall leave that to the Ingenuity of the Commissioners, who may easily form Interrogatories, as the nature of the Case, and the Matter before them shall direct.

General Notes of Sales by Commissioners.

OBserve, That if Commissioners sell the Lands of the Bankrupt, and one of them hath right to the Land so sold, his right by this will not be extinct, Godb. p. 319.

Note, It's laid down in Jones Rep. p. Where the Sale of the Com­missioners may be defeated. 203. In Awdley and Halsey's Case, as a Rule, where the owner of Goods or Lands, by his own Act may not controul a Gift or a Charge; there if he become a Bankrupt, the Gift or Charge may not be defeated. If a man Bargain and Sell Lands, and be­fore Enrolment, he becomes a Bankrupt, and after the Deed is inrolled, there the Bargainee shall hold the Land discharged from the Commissioners of Bankrupts: So if a Man gives Goods or Lands upon a precedent Condition, and after becomes a Bankrupt, and after the Condition is performed, this defeats the Power of the Commission. If a Man makes a Feoff­ment, or gives Goods upon Condition, and after becomes a Bankrupt, and the Lands or Goods are sold by the Com­missioners, and afterwards the Conditi­on is broken, and the Feoffor or Donor re-enter or re-seise the Goods, the Sale is defeated.

[Page 95]The Explication of these Statutes will be better illustrated with the ensuing Cases and Considerations.

First as to the Bankrupts real Estate.

• Freehold.
• Copyhold.

Of the Sale and Disposition of the Free­hold Estate of the Bankrupt.

• I. SUch Lands which are in his own possession at the time of the Bank­rupcy, as an Estate in Fee, in Tail for Life or Years.
• II. Remainder and Reversion.
• III. That which he purchased, or des­cended to him afterwards.
• IV. Settlements on Marriage, or on Wife and Children, and Estates conveyed in in Trust, and in reference to Purcha­sers.
• V. Lands Mortgaged.
• VI. Lands extended by such as pretend to be Accountants to the King, or Goods seised, vide infra sub Tit. Dis­posal of the Personal Estate, &c.

[Page 96]I. Lands in his own possession at the time of his becoming a Bankrupt.

1. What he hath in his own Right, as Estate in Fee, Tail, Life or Years, Free­hold Intail'd Lands. or Copyhold. The Commissioners may sell all Intail'd Lands (except such whereof the Reversion or Remainder in the King, of the Gift or Provision of the King) and such Sale shall be good a­gainst the Bankrupt and his Issue, and all those in Remainder or Reversion, which the Bankrupt by common Recovery or otherways might cut off or debar. So that in such Case the Sale by Commissi­oners shall bar those in Reversion or Remainder, as much as if the Bankrupt himself had suffered a Common Recove­ry; and observe the words in Stat. 21 Jac. Cut off or Debar from any Remainder, Re­version, Rent, Profit, Title or Possibility, in­to, or out of any Mannors, &c.

I will put this Case. Lands are setled Contingent Estate. Son. to A. and B. for their Lives, and after their Deceases, to the use of the first Son of their Bodies, lawfully to be begotten, and to the Heirs Males of such first Son, and for want of such Issue, to the use of the second Son, &c. in Tail Male, and so to the tenth Son. A. becomes a Bankrupt before he hath a Son: Whe­ther the Commissioners may sell these Lands, and make to the Purchaser a Good Estate? I hold they may; for [Page 97] tho' A. be not Tenant in Tail, but bare Tenant for Life, yet the words in the Statute being the Bargain and Sale shall be good against all and every other person and persons whomsoever, whom the Bank­rupt by Common Recovery or otherwise might cut off and debar from any Remainder, Re­version, Rent, Profit, Title or Possibility: It seems this Bargain and Sale shall be good. For A. the Father, before Issue, by his bare Feoffment might destroy the con­tingent Estate, as it is in Archer's Case. But were the Settlement made so as to support the contingent Remainder (as is usully done) so that the Father could by no means debar it by any act he could do, then it would make a greater Question; and yet if the Commissioners could not sell in such case, as Settle­ments Voluntary Set­tlement. are generally made now; the Act in this Point might be easily eluded. (This is to be understood of voluntary Settlements.)

A Man makes a Lease of certain Lands to A. B. for three Lives to begin after the death of J. S. if the three Lives shall so long live. A. B. becomes a Bank­rupt. This Lease to A. B. is but a possi­bility, Possibility. for J. S. may survive all the three Lives, and so it is a thing not grantable. Yet I think the Commissioners may sell this within the intent of these words; for tho' A. B. cannot properly grant this, yet it is such a thing as he may forfeit or extinguish.

[Page 98]A. is Tenant in Tail, Remainder to B. in Tail. B. becomes a Bankrupt, A makes a Feoffment in Fee and dies, and the Commissioners sell these Lands be­fore B. hath recovered in a Formedon, who shall bring the Formedon? Or whe­ther the Act doth vest the Estate in the Purchaser, that he may enter, and have Ejectment? I hold that this Sale is good; for tho' the Remainder Man claims no Estate under the Bankrupt, yet the Bank­rupt by Common Recovery might have barred him; and the Act saith such Bar­gains and Sales shall be good, and the Assignee shall bring a Formedon.

A Bankrupt commits Felony, the Land shall not Escheat, but the Commissioners Escheat. may sell it; this is to be understood of a Common Lord.

If one Bargain and Sell his Land, and Bargain and Salo, and Bar­gainor becomes a Bankrupt be­fore Inrollment. before Inrollment becomes a Bankrupt, this Land may not be sold by the Com­missioners, according to the Rule put be­fore by Jones: But if he makes a Feoff­ment, and a Letter of Attorney to give Livery, and then becomes a Bankrupt before the Seism delivered, these Lands in such case may be sold, B. R. 4 Car. 1. The reason of the difference is, in the first Case the Bargainee is in by the Bar­gain and Sale, and not by the Inroll­ment; and the Bankrupt could not by his own Act defeat this; but no Estate in the other Case passeth at all till the [Page 99] Livery be executed: And then in the last Case, his Letter of Attorney is re­vocable, and his becoming a Bankrupt before the Estate executed, is quasi a Countermand or Revocation in Law. The first Reason is best.

2. Lands settled in other Mens Names; Lands in other mens names▪ in Trust for the Bankrupt.

It is plain these are within the Sta­tute.

If a Bankrupt grant his Lands or Goods, or transfer his Debts in other Mens Names, except to his Children upon Marriage (they being at the Age of Consent) or upon valuable Considera­tion, the Commissioners notwithstanding may sell them, and the Sale shall be good.

But if one be a Merchant, and not in Debt, and he purchase for another, or give to another, and there be no fraud in it to deceive Creditors, this is good, March. 12. p. 32.

Of Lands Purchased by, or Descended or Devised to the Bankrupt since he was a Bankrupt.

PER Stat. 13 Eliz. If any person who is or shall be declared to be a Bankrupt, shall at any time hereafter purchase any Lands, Tenements, Hereditaments Free or Copy, or Offices, Fees, Goods or Chattels; or that any Lands, Tenements, Hereditaments Free or Copy, Offices, Fees, Goods or Chat­tels shall descend, revert or by any means come to any Bankrupt before such times as Debts due to their Creditors shall fully be sa­tisfied and paid, or otherwise agreed for, then the said Lands▪ &c. shall be sold as other Lands, &c. which the Bankrupt had at the time of his becoming a Bankrupt. Vid. supra.

This Clause is to be understood of such Lands which descend or revert to him, and which were in a remote possibility of ever hapning. As suppose a Father seised of Lands in Fee, hath issue a Son, and the Father dies, and the Uncle is a Bankrupt, then the Son dies, and the Lands descend to the Uncle, these could not be sold by the Commissioners, with­out this Clause in the Statute. Tho' Re­versions after Estates for Life or Years might have been sold by the other Clause of this Statute, or any Estate wherein the Bankrupt hath an Interest in futuro. [Page 101] But tho' a Bankrupt hath the Remain­der or Reversion in Fee after an Estate in Tail, yet this cannot be sold by Com­missioners till it fall, because the Tenant in Tail hath power to bar this Remain­der or Reversion.

Suppose a Judicial Office, or Office of Offices. Trust, which cannot be executed by a Deputy, be granted for Life, and the King grants the Reversion to J. S. for Life, he who hath the Grant of the Reversion becomes a Bankrupt, and then the Office falls, how shall the Commissioners dispose of this Office? They cannot execute it themselves, neither can they put in a Deputy. I conceive if the Officer absents, he forfeits his Office, and then the King grants it over; but this is no relief to the Creditors: Therefore Mr. Stone thinks well, the Statute doth not mean such Offices of Trust, which are annexed to the Party; but other Offices of Inheri­tance, as Keeper of a Forest, Warden of the Fleet, &c.

Land is devised to a Bankrupt, the Of Land devi­sed to a Bank­rupt. Commissioners may sell, and the Bank­rupt shall not wave the Devise.

Of Lands Mortgaged, or Estates on Condition.

PER Stat. 31 Jac. c. 19. The Commissi­oners may Assign and Appoint such Person as they may think fit, to make tender or payment of the Mony, as fully as the Bankrupt might have done; and after such tender or payment they shall have power to sell, &c. Vid. supra.

This is in Case the Bankrupt hath Mortgaged any Lands to another. But suppose Lands are Mortgaged to him; as a Feoffment in Fee for 500 l. is made to him and his Heirs, provided that if the Condition of a Feoffment, that if the Feoffor pay not such a sum, then for a further sum the Feoffor to make the Estate ab­solute. Feoffor do not pay such a sum of Mony such a day, then for a further sum the Feoffor is to make it an Estate absolute. The Feoffee becomes a Bankrupt, and the Mony is not paid at the day, the Commissioners have not power by this Act to force the Feoffor to make an ab­solute Fee, but Chancery will compel him.

A. B. makes a Lease, rendring Rent with a Clause of Re-entry, and then be­comes a Bankrupt and absconds, &c. who shall enter if the Rent be unpaid? The Assignee of the Commissioners, especi­ally if the words be in, that then it shall be lawful for the Lessor, his Heirs or Assigns to Re-enter; for tho' the Assig­nees [Page 103] of the Commissioners are not the Assignees in Fact to the Bankrupt, yet they are so in Law; and especially by the Equity of this Statute: And so it should seem to be in other Cases of En­tries for Conditions broken, or Distress for Arrears.

If a Lease is made to A. B. for 21 Conditions. years, provided if he do such an Act, then he shall have Fee; A. B. becomes a Bankrupt and absconds. Quaere if the Assignee of the Commissioners shall per­form this Act, and so gain the Fee? Vi­de infra.

A Merchant makes a Feoffment in Fee, Commissioners tender the Mo­ny on a Mort­gage. upon Condition upon payment of Mony, to Re-enter, he becomes a Bankrupt, the Commissioners may tender the Mony at the day, and sell the Land.

Of Lands whereof the Bankrupt is jointly seised.

IT is clear, that if two be jointly sei­sed of Lands, and one becomes a Bankrupt, his moiety may be sold by the Commissioners, nay, tho' he be dead, and Survivorship shall not take place, Vide infra.

Put the Case, there are two Jointe­nants, and they are disseised; one of the Jointenants becomes a Bankrupt, and then dies; I question whether the Commis­sioners [Page 104] shall sell in this Case? for the words of the Statute of 13 Eliz. are, Such Use, Interest, Right or Title as such Offender might lawfully depart with: Now before Entry he could not grant his moiety; yet he may release before he dies.

Two Women Jointenants of a Lease for years; and one takes Husband who becomes a Bankrupt; the Commissioners may dispose of the Interest of a Moiety; and yet quaere, for Chattels real are given to the Husband if he survive; but if the Husband die before the Wife, she shall have it.

A Bankrupt hath Land in the Right of The Wives Land. his Wife, it may be sold during the Co­verture; and if she be a Feme Merchant the whole shall be sold.

A Feme sole is seised of Land in Fee, B. contracts with C. an Ironmonger, and D. a Working Smith only (for Mony paid by them) to marry A. and then that after the said Marriage, he and A. will levy a Fine of the Land of A. to the use of C. and D. and their Heirs: The Marriage is had, the Fine is levied, C. is outlawed, D. absents. In this Case C. is a Bankrupt, but not D. and the sale of the moiety of the Land is good, per Mr. Stone.

The Dower of a Bankrupts Wife shall never be sold. Aliter, If she marry one that is a Bankrupt.

[Page 105]Two Jointenants, one is a Bankrupt, the Commissioners seise a moiety, the Bankrupt dies, no part shall be sold by Stat. 13 Eliz. but by Stat. 1 Jac. a moie­ty may be sold; for that Statute saith the Commissioners shall proceed as if he were living.

Lands• Setled. , and • Sold.  Settlements: What shall be accounted Frau­dulent and shall be avoided, and the Sale by the Commissioners good, and what not.

Vide supra Stat. 1 Jac. c. 15. Conveyance to Children, except on Marriage, or some Valuable Consideration.

Vide Supra, Crisp and Plats Case, 1 Croke, 548.

IN consideration of Marriage; a man makes a Conveyance to the use of himself and his Wife, and afterwards be­comes a Bankrupt; a Commission is ta­ken out against him, and the Lands are sold by the Commissioners; the Sale ad­judged good, and the Deed fraudulent. In this Case within half an year after this Settlement he became a Bankrupt; so as there seems to be fraud in the Convey­ance; but this is not exprest in the Plead­ing, [Page 106] as it might have been; and this is not in dispute upon a Special Verdict, but comes in question on point of plead­ing, which is to be taken strongly against him that pleads it; and he hath not ex­prest any Valuable Consideration as he Valuable Con­sideration. might have done; as Consideration of a Portion, or performance of Articles made upon Marriage, or that the Wife had joined in selling some part of the Land.

The Wife is within the Statute 1 Jac. Wife, Chil­dren. and the providing for Wife and Chil­dren is providing for himself, Stiles Rep. 288, 289. Tucker and Cosh. But I have seen this Case reported by a Grave Ser­jeant at Law, that the Land may not be sold, quia guerdon pudicitiae.

All fraudulent Conveyances, to deceive Creditors, are within this Statute.

A fraudulent Deed must be so at the Fraudulent Deed. beginning, for subsequent fraud cannot make it so.

If a Man purchase Land after the time of his Trading, and his being in Debt, and do purchase it in the Name of his Wife or Children fraudulently, this will be liable to sale. Aliter, If it be purchased before he becomes to be a Merchant, Marsh Rep. 34. A. purchased Copyhold to him and his Son for their Lives, the Remainder to his Wife in Fee; and after this becomes a Merchant and a Bankrupt, and solely took the Profits till he became a Bankrupt, this shall not [Page 107] be sold by the Commissioners, Vide supra Crisp's Case

A Settlement made by the Husband Wife joins with the Husband in selling part of her former Jointure. for the Jointure of the Wife, reciting that the Wife had joined with the Husband to sell part of the former Jointure in which he and she were Tenants for Life, the Remainder in Tail to the first and tenth Son, Remainder to his Heirs; by Hales at a Trial at Bar, this is not frau­dulent, tho' he alone having no Issue might bar this contingent Remainder, B. R. 24 Car. 2. Scot and Bell.

In an Assise between Creditors and Bargain and Sale. Conside­ration. the Bankrupts Son. It was found, that the Father by Indenture, in considerati­on of love which he bore to his Son, and for natural affection to him, bar­gained, sold, gave, granted and con­firmed the Land unto him and his Heirs; this Deed was Inrolled: This Land shall not pass unless Mony had been paid, or the Estate executed, for the Use shall not pass. Crok▪ Jac. p. 127. Osborn and Churchman.

In a Trial at Bar; the Son and Daugh­ter of Sir Anthony Bateman were Defen­dants in Ejectment; the Defendants ad­mitted the point of Sir Anthony's Bank­rupcy, but set up a Conveyance made by Sir Anthony to them for the payment of 1500 l. apiece, being Mony given to them by their Grandfather, Mr. Rus­sel; to whom Sir Anthony took out Letters [Page 108] of Administration; per Hales, It is a Vo­luntary Voluntary Con­veyance or not. Conveyance, unless that you can prove that Sir Anthony had Goods in his Hands of Mr. Russels at the time of the executing it; so they proved that he had, and there was a Verdict for the Defen­dants, Mod. Rep. 76. Sir Anthony Bate­man's Case.

A Man may settle Lands on his Son Settlement. before he be a Bankrupt, and if it be not by fraud and to deceive Creditors, it shall be good, (and the fraud must be found by the Jury) the Statute saith, the Sale shall be good against such Offender, and he is no Offender till he is a Bankrupt, Jones p. 438. Crisp and Platt. Vide su­pra.

What Sales and Assurances shall be avoid­ed, and where the Purchasers are safe or not.

IT is provided by Stat. 13 Eliz. That the said Act (which enables the Com­missioners to sell the Bankrupts Lands) shall not extend to any Lands, Tenements or He­reditaments Free or Copyhold, which hereto­fore have been assured by any such Bank­rupt, or hereafter shall be assured by any Bankrupt, before he became a Bankrupt. So always that such assurance be made bonafide, and not to the use of the Bankrupt himself only, or of his Heirs; and that the [Page 109] Parties to whose such assurance hath, or shall be made, be not at or before the ma­king such assurance privy or consenting to the fraudulent purposes of any such Bank­rupt to deceive his Creditors.

And per Stat. 21 Jac. c. 19. It is pro­vided, That no Purchaser, for good and va­luable Consideration, shall be impeached by vertue of this Act, or any other Acts here­tofore made against Bankrupts, unless the Commission to prove him or her a Bankrupt, be sued forth against such Bankrupt within five years after he or she shall become a Bankrupt.

Any Sale of Lands and Goods by a Bankrupt before he comes in Debt, or before his Trading, is without question good; and so are all the Acts he doth be­fore he comes to appear to be a Bank­rupt, Marsh Rep. 34.

If one be a Merchant, and not in Debt, and he purchase for another, or give to another, and there be no fraud in it to deceive the Creditors, this is good, Marsh 32.

Sir John Harrison Merchant, seised of Lands and indebted to divers persons; on Action brought against him, he con­ceals himself, for which he was outlaw­ed, and An. 43 becomes a Bankrupt, An. 47 he acknowledgeth two Judgments to Andrews, and An. 1648 he makes a Lease to the Plaintiff; An. 1653 Commission [Page 101] issues out against him, and extends by Elegit 1650. the Plaintiff justifies as com­ing in under Valuable Consideration of 5000 l. Per Glyn he is a Bankrupt by the Outlawry; and also by the fraudulent Lease: But he shall be accounted a Bank­rupt To be account­ed a Bankrupt from the first Act of Bank­rupcy. from the first Act of Bankrupcy, 2▪ Siderfin p. 115. Radford versus Blud­worth; and p. 176. the Question was, if the Plaintiff shall be assured by the Clause of 21 Jac. 19. as being a Pur­chaser on a Valuable Consideration, the Bankrupt having sold above five years before the Commission sued out; when the Commission of Bankrupts is­sues out the Creditors shall have all the benefit of all his Estate which he had Anno Dom. 1643. Excepting Purchasers for a Valuable Consideration: His being a Bankrupt after the Sale, that will not hinder Judgment for the Purchaser, 1 Keb. 11. Bradford and Bludworth.

A Man purchaseth Lands of one who is a Bankrupt, for a Good and Valuable Consideration; and a Commission is not taken out within five years; this Pur­chaser shall not be Impeached. But if one purchaseth Land for Good and Va­luable Consideration, before the Ven­dor becomes a Bankrupt, it's no questi­on but he is safe; and thus is this Clause to be understood.

[Page 111] J. H▪ a Bankrupt was committed two Months, An. 1651. and recommitted for another Act in 1657. then the Bank­rupt sells the Term for years, whereof he was possessed, to the Defendant, and in 1660 the Commissioners sold to the Plain­tiff. This Commission shall▪ not relate Where it shall not relate to the first Act. to the first Act in 51. for the words of the Act are not, after he shall first be a Bankrupt; for then the earlier being a Bankrupt, would after five years be a perpetual Supersedeas to all Tradesmen. But if one hath sold, and then five years pass without any Act of Bankrupcy, the Purchaser is safe, and no after-Act can hurt him. But where the Bankrupt conti­nues in Possession, any after-Act is suffici­ent to bind the Term, 16 Car. 2. Spencer and Vanacre.

A Merchant sells Land bona fide to J. S. Monstra l [...] Faits. and after becomes a Bankrupt, J. S. may choose to shew his Evidences.

Concerning the Sale of Copyhold Lands.

YOU may see in the recital of the Stat. 13 Eliz. c. 7. that Copyhold Lands are to be sold by Deed Indented and Inrolled in any of his Majesties Courts of Record (as other the Bank­rupts Lands) but by the same Statute it is provided, That all persons to whom any such Sale shall be made, shall before such time [Page 112] as they shall enter or take any profits of the same, agree and compound with the Lord of Mannor, of whom the same shall be hol­den, for such Fines or Incomes as heretofore Fines. hath been most usual and accustomed to be yielded or paid therefore: And upon every such composition, the Lord for the time be­ing, at the next Court to be holden at, or for the said Mannor, shall not only grant to such Vendee upon request, the same Copy or Customary Lands or Tenements by Copy of Court-Roll of the said Mannors for such Estate or Interest as to them shall be sold, and reserving the ancient Rents, Customs, and Services; but also in the same Court, admit them Tenants of the same Copy or Admittance. Customary Lands, as other Copyholders of the same Mannor have been wont to be admitted, and to receive their Fealty ac­cordingly.

Copyhold Lands are within all the Sta­tutes of Bankrupcy, Croke, Car. 550. Crisp and Platt.

Title to a Copyhold cannot be made Title to a Co­pyhold, how to be made by Commissioners. by the Commissioners without surrender or admittance, 1 Keb. 24. Croke Car. 596.

It is adjudged in Croke Car. 569. in The Estate vested before admittance. Parker and Bleeks Case, that by Bargain and Sale, made by the Commissioners of Bankrupcy, the Estate of the Copyhol­der is vested in the Bargainee before ad­mittance, tho' he may not enter and take the Profits till admittance: The [Page 113] Bargain and Sale binds the Copyholder and bars his Estate, and he is no Copy­holder after the Bargain and Sale en­rolled: And when the Bargainee is ad­mitted by the Lord, it shall have relati­on to the Bargain and Sale; and the Co­pyholder dying, his Wife shall be bar'd of her Widows Estate.

A Bankrupt purchaseth a Copyhold, and the Tenant surrenders into two Te­nants Hands to the use of the Bankrupt, and now he will not be admitted. Mr. Stone makes some Quere if this may be sold by the Commissioners, but he con­ceives they may; and the Vendee may pay the admittance.

Tenant by Copy is disseised, and the Disseisor is admitted Tenant by the Lord. The Lord Bargains and Sells the Man­nor to J. S. in Fee: Disseisee becomes a Bankrupt, the Commissioners may sell the Copyhold, and the Vendee shall com­pound with the Bargainor, Stone 142.

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

ABecomes a Bankrupt after an Ex­tent, 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.

[Page 119]This Case is well reported by Mr. Ju­stice 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 Bank­rupt before the Liberate; and altho' the Property remains in the Conusor, un­til 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 be­comes a Bankrupt, and delivered by the Liberate after he became Bankrupt, can­not be sold, 2 Siderfin. 115. they are in Custodia Legis.

Execution was sued by Ca. Sa. the Mo­ny 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; up­on 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 [Page 120] 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 o­ther 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 Assign­ment 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 satis­fie 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 sa­tisfaction, 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 [Page 121] Bankrupt. Commission of Bankrupcy was taken out the 8th of June, the Fi. Fa. was made the 11th of June, and execu­ted on the Goods the 17th of June. The Plaintiff, as Assignee of the Commissio­ners, brings Trover: Per Cur. for the De­fendant upon Special Verdict, and that the Goods were liable from the time of From what time the Goods liable to Ex­ecution. 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 Bun­ning, Siderfin. p. 271. Mesme Case. Per Siderfin, the Goods are liable to Executi­on 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. Stat▪ of Frauds and Perjuries. of Frauds and Perjuries, that the proper­ty 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 [Page 122] 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 Com­missioners 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 or­dered to be delivered to the Plaintiff, no execution being sued out, unless a Speci­al Sci. Fac. and per Twisden, How can we S [...]ii [...] Fac. take notice that he is a Bankrupt? Any execution may be stopped at that rate, by alledging, that there is a Commissi­on 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 Spe­cial 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 Cre­ditors Restitution. 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 Co­nusee, and the Writ was not returned; and the Writ of Priviledge was for Debt [Page 123] 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 Perju­ries. So by these Cases, this Vexata Quae­stio is well setled.

If the Bankrupt convey his Goods, Leases, Chattels to any of his Children or other Person, such Leases, Goods and Leases and Goods convey­ed by the Bankrupt. Chattels shall be sold by such Commis­sioners, except in two Cases.

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

2. Upon some Valuable Considera­tion.

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 Commissi­oners 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 Foreign Attach­ment. Foreign Attachment is discharged. And therefore before the Statute 21 Jac. If Goods were attached by Foreign At­tachment in London, and before Reco­very, [Page 124] the party becomes a Bankrupt, and after Recovery is had, this should avoid the Sale by the Commissioners; there­fore 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 Bank­rupt, Seis [...] p [...] She­riff. unless the Goods were seised by the Sheriff before the Party became a Bank­rupt, 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 Of Goods Ex­tended on pre­tence of Ac­count to the King. as he shall become a Bankrupt, by such as pretend to be Accountants, or indeb­ted to the King, the Statute directs the Commissioners to examin upon Oath, whe­ther the said Debt were due to the Accoun­tant upon any Bargain or Contract originally made between the Accountant and the Bank­rupt, and his and their Servants: And if it appear the said Contract was originally made with any other person than the Accoun­tant, 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.

[Page 125]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 Bank­rupt 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 according­ly hath it been resolved: If one shall to the intent to support the Credit of a Bank­rupt, suffer him to have his Goods in his Custody, and to dispose of them; this shall be accounted the Goods of the Bank­rupt, and not of the Owner, Stiles Re­gister, 48, 49.

In Debt on Bond the Defendant plead­ed, Bond in the Bankrupts name. that the Obligation was made to the Plaintiff, to the use of him and other Creditors of O. and that one of the o­thers 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 Com­missioners 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 Bond Assigned. Bankrupcy assign the Bond, this is liable to the after-bankrupcy of J. S. being on­ly suable in his name, 2 Keb. 331. Back­well 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 per­son 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; Commissio­ners 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 le­vies a Fine, and five years pass; the Heir of A. is a Bankrupt, who was to receive the Rent: Now this Rent, and the Ar­rrears may be sold by the Commissio­ners. Vide infra.

What Goods, or other Estate of the Bank­rupt may be sold and assigned by them, Vide supra.

THE Commissioners may assign Debts in Trust, Noy 142. Calch­mans Case, Vide supra.

The Commissioners here may sell a Bankrupts Goods in Ireland, and Irish­men Ireland. may sue the Commission.

[Page 134]They may assign a Judgment, 2▪ Keb. 706, Eclor and Jacobson.

Leases disposed by the Commissioners.

IT is made a Quaere in Mr. Stone, if a Proviso not to sell. Lease for years is made with a provi­so, he shall not alien, and the Commissi­oners sell; whether this be a forfeiture? I hold it is not; for the Act of Parlia­ment which empowers them to sell to pay Debts, shall not be controled by such an inofficious proviso.

A Lease for years is devised to A. if he live so long, the Remainder to one B. the Commissioners shall not sell the pos­sibility, Vide supra.

Advowsons, Presentations.

A Bankrupt hath an Advowson, and the Church becomes void, the Commissioners sell the Advowson, the Vendee presents, the sale is good, but the presentation not; yet I think it is not Symony. Symony.

One grants an Advowson to a Feme Covert, sole Merchant, the Church be­comes void; the Husband in considerati­on that J. S. enters into Bond to Preach twice a Week, presents him to the Bene­fice: The Feme becomes a Bankrupt, [Page 135] the Husband dies, the Feme waves the the Grant, the Commissioners within six Months sell the Presentation and the Ad­vowson, this is a good Sale of the Advow­son, but the King shall present.

Common.

A▪ Had Common for a Cow in Pa­sture to him and his Wife, and to the Heirs of their two Bodies begot­ten; A. the Husband grants the Com­mon to E. the Wife dies without Issue, E. is a Bankrupt; this is neither Land, Tenemnet nor Hereditament which may be sold by the Commissioners, Stone p. 123.

Rents, Vide supra. Herriots, Reliefs.

LORD and Tenant; the Lord is a Bankrupt, the Tenant dies, the Commissioners shall sell the Mony or Debt due for the Relief: So of an Harri­ot: So of the amerciaments of a Lee [...] ▪

What Assignment by the Commssioners shall be good, and what not.

THE Commissioners may assign Mo­ny to one, and Corn to another of the Creditors, 2 Bulst. 26. But,

They may not make an Assignment to many Creditors together for their Debts, but it must be severally, to every one a-part, or it is not good, Godb. 195, 196. the Commissioners may assign a Debt due to the Bankrupt to one of his Creditors for the payment of his Debt, but may not divide it and assign it more than one. lbid.

But the constant course and practice is to make an Assignment to one or more Creditors in Trust for themselves and the other Creditors.

R. is indebted to S. and B. jointly; S. One Jont obli­gee becomes a Bankrupt. becomes a Bankrupt, and the Commissio­ners assign this Obligation to B. 1 Keb. 167. Boylstons Case.

The Assignment is a sufficient bar a­gainst the Parties, tho' it appear not what was proportionable, 1 Keb. 491.

The Plaintiff in Audita Querela count­ed that Sir H. B. to whom he was in­debted, became a Bankrupt, and that certain Creditors had his Debt assigned One of Credi­tors Assignces accepted a part of his Debt. to them; and that one of them accepted part of his Debt in satisfaction of the [Page 137] whole. The Defendant demurs, because he had not shewed what were the Debts of the Creditors, that so his payment might appear proportionable to the Debts; but per Cur. it's well enough, especially being an Action brought by one that is a Debtor; and the very Assignment is a sufficient bar against the Parties; and if there be any Surplusage, the Defendant Surplusage. hath remedy in Chancery, 1 Keb. 491. Fitzwilliams against Lewis.

If the Plaintiff had been indebted in as great a sum as the Bankrupt had been indebted to him, and yet his Debt as­signed, this Assignment had not been good; but this Debt was here assigned inter alia, and so other Debts to be in­tended; and this may be good. The De­fendant here ought to have demanded Oyer of the Indenture, and of the Sche­dule to the same annexed, in which the several Debts are contained. If there Uncore, vide Stiles▪ [...]. be more in this than his proper Debt, then the Assignment is not good; but the same being here with an ( inter alia) this is good and sufficient, 2 Bulst. 26. Powell vers. Stuff and Timewell.

Declaration.

IN an Action on the Case, the Plain­tiff Declares, That the Defendant was indebted to one Gode in the Sum of 43 l. 1 s. for, &c. And being so indebt­ed, promised to pay him; which Gode was indebted to the Plaintiff, and became Bankrupt; whereupon a Commission was sued out, and the Commissioners assign debita p̄d Gode in quadam Schedula continen p̄d summam 43 l. 1 s. to the Plaintiff, &c. Defendant pleads he made no such Promise to Gode. And by Spe­cial A different sum assigned. Verdict it was found that the De­fendant was indebted to Gode but in 41 l. [...] s. which he promised to pay; and that the Commissioners assigned debita p̄d Gode menc̄onat in quadam Sche­dula continen p̄d summam 43 l. 1 s. to the Plaintiff: And if this be the same Promise that the Plaintiff hath declared upon, they find for the Plaintiff. It was said, that upon the whole Record it ap­pears, that the Plaintiff hath not made a good Title to his Action, for he hath al­ledged the Assignment to be of a Debt of 43 l. 1 s. whereas the Debt was but 41 l. 1 s. And this being an entire thing, will not pass by the Assignment of a greater Sum: But it was resolved,

[Page 139]1. That it was the same Promise; for if Gode himself had brought the Action, he should have recovered upon this Ver­dict, and the Assignment by the Com­missioners vests the Debt in the Plaintiff, and he hath the same Remedy to reco­ver that the Brankrupt had. And,

2. The Assignment is not in question, and that which they found touching the Assignment is not material; however the Assignment is not laid to be of such a Sum, as by that name, for then the Court inclined to believe it would not have been good, Allen Rep. p. 28. Baker and Edmonds.

The Commissioners of Bankrupts have power to Sell, Grant and Assign, but they cannot bring an Action; their As­signees must bring all Actions, Mod. Rep. p. 30. But per Twisden, Commissioners of Bankrupts might have an Action of Trover, if they did actually seise any Goods of the Bankrupt, as they might by Law.

It is dangerous for Commissioners of Bankrupts to Assign Debts particularly; as in Baker and Edmonds Case.

One that is a Bankrupt is felo de se. Mr. Stone puts the Question, whether the Commissioners may assign the Goods to be sold for the Creditors, or whe­ther Whether the King shall be preferred before a Subject. the King shall have them? And re­solved it for the Creditors. For, saith he, very well; tho' it is resolved in the [Page 140] Lady Hales Case in Plowden, that when two Titles come together ( viz.) the Kings and a Subject, the Kings title shall be preferred; yet the King by these Acts hath given away his Title to the Credi­tors. And yet in my Opinion this may admit a Dispute; the Judges never con­struing an Act of Parliament to give away the Kings Right, but wherein he is mentioned; and so is the Opinion in Jones Rep. 203. as to this Statute.

The like Case is, A Bankrupt hath a Term, and is a Recusant convict▪ Whe­ther the King or the Creditors shall have the Term?

So; Whether the Creditors by the Commission, shall have the Goods of an outlaw'd person, or the King.

A pain of 10 l. is laid upon a Resiant to A Debt for an Amerciament in a L [...]t. reform a publick Nusance made by him before such a day, and at next Court he is presented: The Lord becomes a Bank­rupt, the Commissioners sell all the Debts of the Bankrupt to A. A. shall have Acti­on of Debt for this Amerciament, Stone p. 149.

A. sues an Execution of a Statute Mer­chant, and the Conisors Land is Extend­ed at too high a rate, and refused by the Extendor, and delivered to the Jurors, B. defeats the Execution by extending an elder Statute. A. is a Bankrupt, the Commis­sioners sell all his Debts, the elder Statute is satisfied, and the Jurors will not enter, [Page 141] the Vendee shall have a Sci. Fa. against Sci. Fa. to re­vive a former Execution by Vendee. the Tenant by the elder Statute, and the Terrtenants, and the Jurors to revive the former Execution, Stone p. 149.

Two Tenants in Common recover Damages in Trespass; the one dies, the other is a Bankrupt; all the Damages Damages. shall be sold by the Commissioners.

A Bankrupt recovers Damages by an Damages As­signed, and then the Judg­ment reversed. erroneous Judgment, the Commissioners assign them to the Creditors, who re­cover them in Execution; the Judg­ment is Reversed; the sale is good, but the Assignees shall make restitution, Vide [...] Keble.

Assignee shall have Debt on a Bond: Tro­ver, Det on Contract; Indeb. Assump­sit: Action on the Case, &c. and other Remedies as the Bankrupt might have.

ASsignee shall have Trover. If the Goods of the Bankrupt come to the hands of A. and be sold by B. no Trover lieth for the Mony or Goods, Trover▪ Commissioners power of the Mony, and not Goods sold. but the Commissioners have only power of the Mony. But on the Sale to A. by the Bankrupt, the Commissioners may elect to have Mony or Goods, 2 Keb. 348. Micons Case.

Trover lies of Conversion between the Bankrupcy and Assignment: It was held no Trover lay, but on specially shewing the Bailment before and Conversion Mean; yet it hath been held to lie ge­nerally, 3 Keb. 294. Wellempton and Danby.

In Debt by an Assignee of Com­missioners of Bankrupts, the Defendant waged his Law Instanter, the Debt being Wager of Law. on single Contract between the Defen­dant, and E. the Bankrupt, 2 Keb. 360. Puckridge and Brown; Siderfin, p. 372. Mesme Case, 3 Keb. 337.

An Action on the Case on Indebitatus, Assumpsit to pay Debt assigned by the Commissioners of Bankrupts, 3 Keb. 625. Coply and Dockmanque.

[Page 144]In Assignment of Debts by the Com­missioners, there is nothing but a naked thing in Action transferred, and no Estate or Reversion to which it may be annexed, and therefore Privity of Con­tract What kind of Privity is trans­ferred. must be transferred, or otherwise no­thing shall be transferred: But if a man seised in Fee, makes a Lease for years, reserving Rent, and after he becomes a Bankrupt, and the Commissioners of Bank­rupts assign over the Reversion and the Rent. Rent, there the Assignee shall have an Action of Debt upon the Privity of the Estate, and not upon Privity of the Con­tract, 1 Sanders 240. Thursby and Platt.

Action of Trover lieth by the Assignee of one Partner a Bankrupt, against the other, 2 Keb. 750. Thomas and Day.

Of Actions brought by the Bankrupt himself.

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

The Plaintiff may have Trespass or Co­venant, &c. where the Damages are un­certain, but any Debt certain is assignable. Debt certain.

Indebitatus by the Plaintiff, being a Bankrupt, the Defendant prayed to be discharged on Common Bail, in regard the Debts are assigned, and so the Com­missioners [Page 145] must bring the Action; and this Assignment may be given in Evi­dence; the Court discharged him upon reasonable Bail ( viz. of 100 l.) the Debt being 1500 l. 1 Keb. 372. Holt and Scasgrogy.

Of Declarations by Assignees of Commissio­ners of Bankrupt.

NO place of Assignment by Commis­sioners Place of Assign­ment. is alledged, per Curiam its ill, 3 Keb. 345. Copleys Case.

In Action of Debt brought upon the Statute of Bankrupts, the Plaintiff laies in his Declaration the Debt due to him, & quod vigore Statuti p̄dicti Actio ac­crevit. Per Cur. the Plaintiff ought not Plaintiff need not mention the several Credi­tors, but only his own Debt due to him. in his Declaration to mention his seve­ral Creditors; but this ought to come on the other side, to set forth that there were no other Goods but those which are named, and there were other Creditors, but the Plaintiff is not to set forth this in his Declaration, it being sufficient for him only to set forth his own debt due to him, and that virtute cujꝰ Actio ac­crevit.

It was excepted to the Declaration, that it is uncertain, because it is not ex­prest upon what Statute the Action is brought, but per Curiam it is good; for Vigore Stat▪ prea [...], how to be referred. these words in the Declaration ( vigore Statuti p̄dicti Actio Accrevit) shall be [Page 146] referred unto the Statute which gives the Action unto the Creditor upon the Assign­ment by the Commissioners, and this is only the Statute 1 Jac. c. 15. These are general Statutes, and therefore notice must be taken of them, 2 Bulst. 26. Powell versus Stuff and Timewell.

Det on Obligation assigned by the Monstre del Ob­ligation. Commissioners, and doth not shew the Obligation; wherefore it was demurred▪ Per Cur. it's good enough, whithout shew­ing it in Court; because he comes in by Act in Law, and hath no means to obtain the Obligation, Croke Car. p. 209. Gray and Feilder.

Divers Debts were assigned to the Plantists, being Creditors, by the Com­missioners, upon the Statute 13 Eliz. of Bankrupts; and they sued an Action in their own Names for the Debts. Per Cur. it well lies; for it is a Debt transferred by Parliament, and being upon a Con­tract, the Defendant waged his Law, and Wager of Law, Vide supra. was admitted thereto; for tho' the Par­liament transferred the Debt, yet it is not any Debt of Record: But as he might have waged his Law against the Bank­rupt, so he may against the Plaintiffs, Croke Jac. 105. Vide supra in Jones Rep.

The Statute 1 Jac. gives an Action to the Assignee in his own Name, but he must declare specially.

The Form of a Declaration by Assignees: Of the Commissioners of Bankrupts against a Debtor.

Land ss. F. B. nuper de W. in Com Sur emiss [...] ▪ S. Chapman sum̄onit fuit ad respond P. S. & I. L. de plito quod reddat eis 41 l. quas eis debet & injuste detinet, &c. Et unde ijdem P & I. p W. C. Attorn suum dicunt qd tum p̄d F.—die—Anno, &c. apud Lon in poch, &c. emisset de quodam Petro Elston de L [...]nd Leatherseller quatuor scaplos Papiri Anglice Reams of Piller-Paper, ꝓ 20 s. duodecim [...]un­delas fili Anglice White Thred ꝓ 20 s (ac sic diversas seperales pcellas) sol­vend p̄fa [...] Thome Elston scilt cum inde requisitꝰ fuisset; que quidem separa­les summe in toto se attingunt ad 47 l. 5 s. 4 d. Cum (que) p̄d Petrus Elston 10 die Iulij Anno, &c. indebitatꝰ fuis­set eid I. L. ac quibusdam A. B. & I. U. & diversis alijs psonis Credito­tor̄ p̄d Petri Elston (ipsis I. L. A. B. & I. D. & p̄sat Petro Elston ex­isten subditis natis hujꝰ Reḡ Ang [...]) in diversis denario (rum) sum̄is in toto se attingen ad 1000 l. leglis monte Ang [...] ipū (que) Metro Elston sic indebitat exi­sten ac p̄d 47 l. 5 s. 4 d. p̄fat Petro Elston p p̄d F. minime solut existen [Page 148] idem Petrus E. postea selt (tale die & Anno) apud L. in poch & warda p̄d ( [...]od I. L. & alijs Creditoribꝰ p̄d Petri E. de debitis suis p̄d minime satisfact existen) incepit Custodire domum suam Anglice did begin to Act del Bank­rupcy. keep his House ibid existen ad intenti­onem defraudand Creditores suos p̄d de veris debitis suis p ipsum P. Elston debit. Et superinde eod 10 die Aug. Anno, &c. su [...]dict apud L. in p̄och & warda p̄d manifeste devenit decoctor (Anglice) became a Bankrupt qui qui­dem P. Elston tempore quo ip [...] sic ut p̄fertur devenit decoctor Anglice a Bank­rupt fuit & adhuc est subditꝰ notꝰ hujꝰ Regni Anglie videlt apud Londn p̄dict in p̄och & warda pd ac tunc & p multos annos ante tunc in ead poch & warda p̄d querebat faculta­tem suam vivendi Anglice did seek his trade of living p viam emendi & vendendi Ac cum postea selt (tali die & Anno) apud Westm in Com Midd ad peticon p̄d A. B. I. L. I. D. & Petition. aliorum Creditorum p̄d P. Elston tunc Thome dom Elsmere Dnō Cancella­rio Anglie exhibit & fa [...]t ꝓ remedijs suis versus p̄fat P. Elston tunc ex­isten decoctorem (Anglice a Bankrupt) in hac pte hend ijsdem Abr̄ Iacob & Iohe & ceteris Creditoribꝰ p̄d P. El­ston de debis suis p̄d tunc minime sa­ti [...]fact) quedam Commissio dicti Dom [Page 149] Regis super Statuta contra decocto­res Anglice Bankrupts edit & ꝓvi [...] sub Magno Sigillo diet Dom Regis An­glie Sigillat & hic in Cur̄ a ꝓlat ge­ren Commission dat apud Westm p̄d 16 die, &c. Anno, &c. quibusdam [...]. S. Ar̄ H. S. Ar̄ I. H. Mercator̄ R. H. Mercator̄ & W. R. Mercator̄ direct fuit p quam quidem Commissionem dict Dom Rex dedit plenam potestatem & authorita­tem p̄diet Commissionar̄ quatuor vel tribus eo (rum) quorum p̄d I. S. vel H. S. unum esse voluit juxta separalia Statuta de decoctoribꝰ Anglice Bank­rupts in hujusmodi casu edit & ꝓvi [...] in dicta Commissione men [...]onat non so­lum concern p̄d decoctorem Anglice Bankrupt corpus p̄d decoctoris, terras libera tenementa & customar̄ bona de­bita & alias res quascun (que) sed etiani concern omnes alias psonas que p concelamentum clameum vel aliter of­fenderet Anglice shall or do offend tan­gen p̄d p̄missa vel aliquam ptem inde contra intentionem & proposi­tum dictorn Statutorum vel utrius (que) eorum ad faciend & exigend sedm dicta Statuta & utrum (que) eorum omnes & quastibet rem & res quascun (que) tam erga & ꝓ satisfactione & solu [...]one p̄dict Creditorum quam erga & ꝓ o [...]bꝰ alijs intentionibꝰ & propositis sedm ordina­tionem & ꝓvisionem eo (rum)dem Statu­to (rum) per quam quidem Commissionem [Page 150] idem Dominus Rex voluit & dedit in mandatis qd p̄d Commissionar̄ quatu­or vel tres eo (rum) quorum p̄d I. S. & H. S. unum esse voluit ad procedend ad executionem & complementn p̄d Commissionis sedm veram intentio­nem & ꝓpositum dictorum seperalium Statutorum & utrius (que) eorum cum omni diligentia & effectu secundum specialem fiduciam dicti Dom Regis in illis repositam; ꝓut p eandem Commissionem plenius liquet & appa­ret Virtute cujus quidem Commissio­nis & vigore Statutorum p̄dicto (rum) p̄d H. R. & W. [...] meliori remedio Credi­torum p̄d post maturam deliberac̄onem inde capt postea selt 5 die, &c. apud London in poch & Warda p̄d ꝑ quan­dam Indenturam assignac̄onis inter Assignment. ipsos H. R. & W. ex una pte & eos­dem Petrum Iacob & Iacobum ex altera pte factam, cujus alteram par­tem Sigillis ipsorum H. R. & W. signat ijdem P. I. & I. in Curia Recital. ꝓferunt, cujus d [...] est die & Anno ult supra diet testat existit qd cum placi [...] ­erit Regis Majesta [...]i p Commissioneth suam sub Magno Sigillo Anglie Si­gillat geren dat 16 die, &c. Anno Regni sui 11 direct p̄d I. S. H. S. I. H. R. H. & W. R. dantem plenam potestatem & authoritatem eis vel ali­quibus quatuor aut tribus eorum quorum p̄d I. H. vel H. S. unum esse [Page 151] voluit, ꝓ executione Statutorum tan­gen ordines ꝓ decoct Anglice Bank­rupts quorum unum editum fuit in Parliamento inchoat & tent apud Westm p̄d 19 die Maij Anno, &c. in­titulat Actus ꝓ meliori relevio Cre­ditor̄ contra eos qui devenirent deco [...] Anglice Bankrupts vel aliquem eorum sup Corpus terras bona debita pd P. Elston qui devenit decoctor ea intenti­one qd tam Creditores p̄d P. Elston essent ratabiliter & ꝓportionabilit sa­tisfact de debitis suis in tant quant status p̄d P. Elston extenderet, quam erga & ꝓ omnibꝰ alijs materijs in­tentionibꝰ & ꝓpositis sedm ordinatio­nes & ꝓvisiones dictorum Statuto­rum & utrius (que) eorum prout p p̄d Com­missionem & Petitionem eidem annex’ liquere potest p̄d Commissionarij ꝓ debita executione inde juxta officio­rum eorum debitum ꝓcesserunt in eis­dem sedm equitatem & purport An­glice purport p̄diceorum Statutorum & Commissionis & ꝓ eo quod invenerunt ꝑ examinationem p̄d P. Elston & alio­rum qd cirea (tali die & Anno) P. Elston secrete remanebat Anglice did keep himself secret in Domo sua in Fryday-street London & recusabat col­loquium eum Creditoribꝰ suis vel ire foras ex ꝓposit ipsum custodire a sectis & arrestationibꝰ Creditorum suorum ac deferre & impedire eos a recupe­ra [...]n [...] [Page 152] debito (rum) suo (rum) & sic eo modo induxit seipsum Anglice did bring him­self infra periculum Anglice within the compass predictorum Statutorum de decoctoribꝰ, & fuit eod tempore pos­sessionatꝰ ut in jure suo ꝓprio de di­versis mercimonijs, merchandizis, bonis, utensilibꝰ, & pecuniarum sum­mis, & huit diversa debita tunc ei devcn ad magnum valorem, pars quorum quidem mercimoniorum, mer­chandi [...] ’, bonorum, debitorum, & sum­marum pecunie devenerunt ad manus diversarum personarum, quarum no­mina quam etiam particulares parcel­le quorum mercium, merchand, bono­rum summar̄ pecunie ac debitorum sunt specificat & content in schedula indent p̄d Indenture annex’ ijdem Assignment. Commissionarij ꝓ & in consideratione mille librarum current monete Anglie solvend p eosdem P. I. & I. ꝓut in Indentura p̄dicta postea mentionabatꝭ & ex ꝑte eorumdem P. I. & I. con­vent ꝓ tanto quantum legitime potue­runt, concessissent barganizassent ven­didissent & allocassent Anglice set over & p eandem Indenturam barganiza­verunt vend assign & allocaverunt eisdem P. I. & I. & eorum assiḡ om­nia & singula p̄dicta bona mercimon merchandi [...] ’ utensilia debita & sum­mas pecunie & quamlibet ptem & pcellam inde que legitime potuissent [Page 153] vendere, & que devenissent & reman­sissent in manibꝰ p̄dictarum ꝑsonarum quarum nomina ro [...]tent [...]uere in sche­dula p̄d’ p̄dicte Indenture annex’ [...]end’ & tenend’ omnia p̄dicta bona, mer [...]im merchandiz’ deba summas pecu [...]ie ac omnia & singula p̄dict barganizat vendit & assignat p̄missa, ac quamlibet ptem & pcellam inde, eisdem P. I. & I. executoribꝭ administatori [...]ꝭ & assign suis imppetuum. Et ijdem P. I. & I. ꝓ seipsis executo [...] administrator̄ & assign suis & ꝓ quolibet eorum con­venerunt Covenant. ꝓmiser̄ conces [...] & agreaver̄ ad & cum p̄fat I. S. Hen’ Ioh’ Har­per Rob’ & Wolst & ad & cum utro (que) & quolibet eo (rum) & utrius (que) eo (rum) exe­cuto [...]ibꝰ & assign p eandem Indentu­ram qd ijdem P. I. & I. execut & as­sign sui & quilibet eo (rum) cum omni con­venienti celeritate sectarentur Anglice will sue arrestarent impla [...]itarent & utentur eo (rum) & cujus [...]ihet eo (rum) optimis medijs & ope p leges hujus Regni se [...] alia legitima media, recuperare capere vel recipere de p̄d personis in p̄d Indentura & Schedula p̄d’ eid’ Indenture annex’ menc̄onat eorum heredibꝰ, executoribꝰ, vel aliquo eo (rum) p̄dicta bona mercimonia, merchand u­tensilia deba & summas pecunie ve [...] verum valorem inde & qd P. I. & I. hered exec administ vel assign sui vel aliqui eo (rum) ad aliquod tempꝰ pos [...] da­tum [Page 154] Indenture pd non acquietarent relax’ seu exonerar̄ vel causar̄ seu ꝓ­ [...]urar̄ fore acquietat relax’ vel exone­rat p̄dictas p̄sonas in p̄dicta Indent vel indentata Schedula p̄dicte Inden­ture annex’ menc̄onat hered administ vel assign suos vel aliquem eo (rum) de & ab p̄d bonis mercim merchand uten­sil debis veris, summis pecunie, seu de vel ab aliqua p̄te vel p̄cella eorum set tantummodo tal qual ijdem P. I. & I. essent accomptabil p̄d Com­missionar̄ seu tribꝰ eorum ad minus quorum, &c. fore unum. Et ijdem P. I. & I. ꝓ seipsis execut adminise & assign suis & ꝓ quolibet eo (rum) con­vener̄, concesser̄, &c. qd super recupe­ratione & receptione p̄dicto (rum) bono (rum), Account. &c. & summarum pecunie, seu alicu­jus partis inde, ijdem P. I. & I. exec admin vel assign sui de tempore in tempus infra 10 dies post quamli­bet requisitionem eis fiend p pdi [...] Commissionarios vel aliquos tres eo­rum facerent justum & verum compu­tum omnium talium summe & sum­marum pecunie qual ipsi vel eorum aliqui reciperent ꝓ aliquibꝰ p̄dict mer­cimon vendit vel ꝓ debis solut seu [...]ꝓ vel super aliqua composic̄one conce [...]n eadem, p̄d Commissionarijs vel ali­quibꝰ tres eorum vel alicui psone si [...] psonis quas ipsi in Scriptura nomi­narent & appunctuarent, existen Cre­ditoribꝰ [Page 155] p̄fat P Elston, qui sedm p̄ ­dicta Statuta contribuerent o [...]eri p̄ ­dicte Commissionis: Et sic compu­tantes qd ijdem P. I. & I. seu exe [...] admin vel assign sui vel aliqui eo (rum) immediate super quolibet tali Com­put solverent & deliberarent seu cau­sarent solvi & deliberari p̄dict Com­missionar̄ ut p̄d est in tali modo & forma seu talibꝰ psone vel psonis qual p̄d Commissionar̄ nominarent & appuncta­rent sedm p̄dicta Statuta vel utrum (que) eorum & p̄d Commissionem omnes ta­les summam & summas pecunie qual ille vel illi reciperent ut p̄d est: Ex­cept & reservat eisdem P. I. & I. exec & assign suis omni tal [...]atio­na [...]il summa & summis monete qual essent disburs [...]t seu expendit ꝓ & erga recuperationem & recepc̄onem p̄d bono­rum mercim merca [...]d sum̄e vel sum­marum pecunie ut supradict est ꝓut p eandem Indentur̄ inter al plenius apparet. Et ijdem P. I. & I. in fa [...]o dic quod p̄d debitum 48l. 5s. 4d. in Schedula p̄dicta inter alia p̄dicte Indenture annex’ & inter alia ijsdem P. I. & I. ꝑ Com̄issiona [...] p̄d assign & p̄d debitum 48l. 5s. 4d. superius specificat fore debitum est unum & Averment. idem debitum & non allud ne (que) diversum & est tam ad usum p̄d P. I. & I. [...]uam ad usum reliquorum Credito­rum p̄d P. Elston p quod ac vigore [Page 156] Statutor̄ p̄d actio accrevit ijsdem P. I. & I. ad exigend & [...]end de p̄fat Francisco p̄dict 48l. 5s. 4d. p̄di­ctus (que) Francilcus de 7l. 4s. 5d. inde ijsdem P. I. & I. postea satisfecisset p̄dictus tame Fr̄ licet sepius requisitꝭ p̄d 41l. inde resid eisdem P. I. & I. nondum reddidit sed, &c. Tr. 13 Jac. Rot. 3365.

Det per Assignee of the Commissioners of Bankrupcy, upon a Bond made to the Bankrupt.

W. B. queritur de T. R. de Long­lane in ꝑoch Sancti Sepul­chri London nigro pistore alias dict T. R. de ead Civitat nigro pistore in custodia Marr̄, &c. de plito quod red­dat ei decem lib leglis monete Anglie quas ei debet & injuste detinet pro eo videlt qd cum p̄d T. 11 die Febr̄ An­no Regni Dom Caroli nunc Regis Anglie, &c. nono apud Lond p̄d videlt in ꝑochia beate Marie de Arcubꝰ in warda de Cheap’ London p quoddam scriptum suum obligatorium sigillo ipsius T. sigillat Curie (que) dict Dom Regis nunc hic osten [...] cujus dat est eisdem die & Anno cogn se teneri & firmit obligari cuidam I. B. nuper de London Upholster in decem libris solvend eid I. cum inde requisitꝰ esset▪ [Page 157] Cum (que) etiam p̄d I. postea selt quarto die Martij Anno Regni dict Dom Caroli nunc Rs̄ Anglie undecimo apud London p̄d in poch & warda p̄d indebitat fuisset eid W. & diversis alijs Creditoribus ipsius I. existen subdit nat hujus Regni Anglie in diversis sepalibꝰ denariorum sum̄is in toto se attingen ad duas mille libras legalis monete Anglie ipso (que) I. sic eid W. & p̄d alijs Creditoribꝰ ipsius I. indebitat existen ac p̄d 10 libris in manibus ipsius T. ut p̄fertur insolut existen Idem I. p̄dicto quarto die Martij anno undecimo supradict apud London p̄d a Domo sua mansional decessit (Anglice) did depart ea in­tentione ad defraudand Creditores su­os Act des Bank­rupcy. p̄d de veris & justis debiti [...] suis eis p ipsum I. debit ꝑ quod Creditores sui impedit fue [...] Anglice were delayed de obtentione justorum & verorum debi­torum suorum Et superinde p̄d I. I. eod quarto die M. Anno undecimo supradicto apud London p̄d manifeste devenit Decoctor (Anglice became a Bankrupt) & fuit & adhuc est subditꝰ natus hujus Regni Anglie (videlt) apud London p̄d in paroch & warda p̄d & adhuc & p multos annos ante tunc querebat modum suum vivendi (An­glice) did seek his trade of living p viam emendi & vendendi Cum (que) etiam postea selt decimo die Martij anno [Page 158] undecimo supradict apud Westm in Com Midd ad petitionem p̄d W. & quorundam aliorum Creditorum p̄d I. tam ꝓ seipsis quam ꝓ alijs Credito­ribꝰ ipsius I. hon [...]li viro Thō Dom Coventry adhuc & adtunc dnō custod Magni Sigilli dicti Dom Regis nunc Anglie exhibit & fact ꝓ remedijs suis versus p̄fat I. tum existen de­coctorem (Anglice a Bankprupt) in hac pte hend eid W. & alijs Credito­ribꝰ p̄d I. de debitis suis p̄d tunc mi­nime solut sive satisfact existen que­dam Com̄issio Dom Regis super Sta­tut Commission. contea decoctores (Anglice Bank­rupts) edit & ꝓvi [...] sub Magno Sigil­lo ipsius nuper Regis Anglie sigilla [...] & hic in Curia ꝓlat geren dat apud Westm p̄d p̄d decimo die Martij anno undecimo supradict quibusdam I. G. Ar̄ T. E. Ar̄ A. H. Gen I. W. Gen & R. U. Gen direct fuit ꝑ quam qui­dem Com̄issionem idem Dom Re [...] nunc adtunc & ibidem dedit plenam pote­statem & authoritatem sd Commissio­nar̄ quatuor vel tribꝰ eorum quorum p̄fat I. & T. unum esse voluit juxta separalia Statuta de decoctoribꝰ An­glice Bankrupts, & quodlibet eorum in hujusmodi casu edit & ꝓvis in dicta Commissione men [...]onat non solum de & concernen dictum decoctorem Anglice Bankrupt corpus suum terras liberas & custumar̄ bona debita & alia que­cun (que) [Page 159] sed etiam concernen omnes ali­as psonas que p concelament clameum vel aliter offendissent vel offenderent (Anglice do shall and offend) concer­nen pmissa vel aliquam ptem inde contra inten [...]onem & ꝓposit (Anglice the meaning) eorundem Statutorum vel alicujus eorum, & agere & exequi sedm sdicta Statuta & eorum alicu­jus omnes & singulas rem & res tam erga & ꝓ satsfac̄one & solutione Cre­ditorum pd quam erga & ꝓ omnibus aliis intentionibꝰ & ꝓpositis sedm or­dinationem & ꝓvisionem eorundem Statutorum dictus Dom Rex p eand Com̄ssionem volens & pcipiens eisdem Commissionar̄ quatuor vel tribꝰ eo­rundem quorum p̄fat I. G. & T. E. unum esse voluit ad ꝓcedend ad execu­tionem ad accomplementum sd Com­mission [...]s sedm veram intentionem & ꝓposit (Anglice meaning) eorundem separalium Statutorum & alicujꝰ eo­rumdem cum diligentia & effectu ꝓut specialis fiducia dicti Dom Regis in eis posit fuit prout p eandem Com­missionem plenius apparet Virtute cu­jus quidem Com̄issionis & vigore Sta­tutorum p̄dict p̄d I. G. A. H. & T. W. tres Com̄issionar̄ p̄d’ & p̄d’ I. B. ꝓ meliori remedio p̄d’ W. B. & ꝓ alijs bonis causis ipsos ad inde specialiter moven post maturam deliberationem inde cap [...] selt decimo quarto die, &c. [Page 160] Anno Regni, &c. ꝑ quoddam script [...] suum indentat sigillis eorundem I. G. Assignmet. A. H. & I. W. sigillat ad & cum con­sensu creditorum sd’ I. B. qui Com̄issi­onem sd’ ꝓsecut fuissent & impetrassent Ac etiam ad & cum assensu p̄d’ I. W. decoctoris & in executione Com̄issionis illius assignaverunt & extraposuerunt (Anglice have set over) eid’ W. W. p̄d’ debitum decem librarum inter alia p̄fat I. B. p sfat T. R. in forma p̄d’ debit hend’ tenend’ petend’ demand’ sectand’ recuperand’ & recipiend’ debi­tum p̄d’ quamlibet ptem & ꝑcellam inde eidem W. executoribꝰ administra­toribꝰ & assign suis tanquam bona sua ꝓpria & ad suum ꝓprium usum & bene­ficium imppetuum abs (que) aliquo Com­pō p ipsum W. B. executores vel assign suos alicui psone vel aliquibus pso­nis quibuscun (que) ꝓ eisdem fiend’ p quod ac vigore Statutorum p̄d’ actio accre­vit eid’ W. B. ad exigend’ & hend’ de p̄dict T. R. p̄d’ decem lib p̄d’ tamen T. licet sepius requisitus &c. p̄d’ 10 l. p̄fat I. W. nondum solvit sed illi ei huc­us (que) solvere omnino contradixit & ad­huc contradicit ad damnum ipsius W. quin (que) librarum Et inde ꝓducit sectam, &c.

Of Pleadings to Actions brought against the Commissioners.

IN Trespass against the Commissioners of Bankrupts, if the Plaintiff declares To the break­ing the House it must be spe­cially pleaded. of the entry into his House, the Defen­dant may not plead not guilty, and give the Special Matter in Evidence; but he ought to plead the Commission of Bank­rupcy, and all the Special Matter; but Aliter, As to taking Goods. 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 Tres­pass, or other Suit shall happen hereafter to be brought against any Commissioner autho­rised [Page 166] 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 Commis­sioners 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 complain­ed 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 authori­sing the said Act or thing, whereunto the Plaintiff shall be admitted to reply, that the Defendant did the fact supposed in the De­claration, 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 up­on trial of that Issue, the whole matter to be given on both parties in Evidence, ac­cording to the very truth of the same: And if Verdict upon such Issue shall pass for the De­fendant, 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 Au­thority [Page 167] is given by 21 Jac. and no such General Pleading is provided for by that Statute.

Action on the Case was brought by Former Action of Trespass no Plea to an Acti­on on the Case. 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.

Of the Venue.

IN Action of Trover by Assignee of the Commissioners, the Visne may be laid in Middlesex, whence the Commission issueth, or in the place where the Cause of Action ariseth, at the Plain­tiffs Election▪ the Commission being the Foundation of all▪ [...] 15. & 16. Car. 2. Bayly and Bunnings Case

Evidence [...]

THE Evidence [...] were the Depositions before the Commissi­oners Depositions. of the Bankrupt, which per Curiam is good enough▪ bu [...] the Defendants Councel opposing them▪ they proved viva voce what the Bankrupt con [...]est.

In a Suit in Chancery on Assignment of Lands, &c. the Depositions which were taken before the Commissioners, not allowed as Evidence; but a Special Commission taken out: The Defendant excepted to a Witness because he was a Witness. Creditor, and so might come in before [Page 169] division made: But after four Months after any Dividend duly made, he is a good Witness; for no other Dividend shall be intended, 2 Keb. 348 Bets and Mico.

What Evidence sufficient to prove a man Bankrupt, Vide Siderfin, 411. Sir Anthony Batemans Case, & alias supra.

On Trial at the Bar in Trover and Conversion for 4000 l. which was the Mony of Sir A. C. a Jew, and upon his Bankrupcy, assigned by the Commissio­ners of Bankrupts to the Plaintiff, and exception was taken to the Evidence, be­cause the Assignment of the Commissio­ners was 18 No. 67. and the Plaintiff demands the Mony of the Defendant 21 No. 67. and the Declaration is of the same Term ( Sil't) Mich. 67. which relates to the first day of the Term: And so Action brought before Action before Cause of Acti­on. Cause of Action. But per Cur. an Action in B. R. shall not be said to commence, until the Defendant hath made his ap­pearance, which is not until Bail filed, (if it be by Bill) Siderfin, p. 373. Lidcott and Backwell.

Maxims of Bankrupts.

ONCE a Bankrupt and always a Bankrupt, per Glyn. 2 Siderfin, 115. Vide prius.

Statues favourably to be construed for the Creditors, Vide le Stat. 2 Siderfin. 115.

[Page 170]He that is a Bankrupt to one Creditor, is a Bankrupt to all, Stiles Reg. 48.

Of Distribution, Vide prius sub Titul’ Assignment.

THE Commissioners may sell and prepare for Distribution presently upon the execution of the Commission; but till the four Months are past, they may not proceed to Distribution, Hutton, p. 38.

Per Coke and VVinch. 10 Jac. Reeve vers. May, The Commissioners may di­vide a Debt upon Obligation.

Distribution must be to every one of the Creditors a portion, rate and rate-like, ac­cording to the quantity of his or their Debt, 2 Rep. 25, 26.

Commissioners ought to make several Distribution to several Creditors, and not to mak a joint-Sale or Assignment to several Creditors: For if he owe to A. 20l. [Page 171] to B. 20 l. and to C. 5 l. a joint Sale or Assignment to A. B. and C. is not accord­ing to their power given by the said Act 13 Eliz. but if by the Special Verdict it appears that the Debt was due to the Plaintiffs jointly, then the joint Sale is good, 2 Rep. 26.

If a Bankrupt be indebted to one 20 l. and to another 10 l. and he hath a Debt due to him by Bond of 20 l. Now the Commissioners may assign and divide this ( viz.) to every Creditor a portion, part and part-like; and the Assignees it seems may sue severally for it, Godb. 195. See Bradshaws Case.

Per Stat. 21 Jac. Judgmentees, Coni­sees, Attachers, per foreign Aattach­ment, if there be no Extent sued and ex­ecuted upon any the Lands, &c. Goods and Chattels of the Bankrupt before the time of his Bankrupcy, shall only have a rateable part with other Creditors for their just Debts, Vide Prius Cap. 5.

If any Distribution be made of any part of the Estate, no Creditors are to be admitted after, that come not in be­fore, Hob. 287. vide supra Cap. 6. Fuller and Lance in Chancery.

Notice to Creditors of making a Dividend; upon paying Contribution Mony, and pro­ving their Debts.

WE whose Names are subscribed, being the major part of Commis­sioners named and authorised in the Commission of Bankrupt awarded against A. B. of, &c. the Four Months since the the date and suing forth of the said Commission, having been long since elap­sed and expired; and the Creditors who prosecute the same, having desired that we should proceed to make a Dividend of the Estate by us already discovered and assigned, as by the Statutes we are im­powred, do therefore by these Presents give fourteen days notice thereof, and that we do intend and appoint to meet for making the said Dividend, on Friday the first day of September next ensuing, by Ten of the Clock in the Forenoon of the same day, at the Irish Chamber in in Guildhall, London; and such Creditors who do intend to come into the said Commission for their respective Debts, are to take care to pursue the directions of the said Statutes, in paying in their Contribution-mony, according to our former Order in this Affair, lest they be excluded the Dividend; and they are also at the same time and place, to come [Page 173] prepared to make due proof of their re­spective Debts; dated the 18th day of August, in the fifth year of, &c.

Remedy for the Creditors for the Remain­der 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 speci­fied and declared; that then the said Cre­ditor 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 de­livered unto him or them by order of the [Page 179] said persons, as is aforesaid; and of no more portion or parcel thereof.

Suppose the Assignee of the Commis­sioners hath sued a Debtor of the Bank­rupt, and recovered upon Bond made to J. S. and distribution is made to the Cre­ditors, amongst whom J. S. was one, and he is not satisfied: He sues the Bank­rupt 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 ma­king 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 Mo­nies, 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 Decree for Mo­ny against a Mans own Re­lease. Discharge, he should have it; which he did, not knowing how to come by his [Page 180] Mony; yet after the Creditor was relie­ved in Chancery for the rest, notwith­standing his own Release, Inter Dr. Lake and Deane; for by Lord Egerton, Volenti non fit injuria, si dolo sit inductus ad con­sentiendum.

Of the Commissioners Account to the Bank­rupt, 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 Bank­rupt, of employing and bestowing of his, her or their said Lands, Tenements and He­reditaments, [Page 181] 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 Bank­rupts, their Heirs, Executors, Administrators and Assigns; and that the said Bankrupts, after the full satisfaction of the said Credi­tors, shall have full power and authority to recover and receive the Residue and Remain­der of the Debts to them owing.

If the Bankrupt die, yet his Executors shall have an Action against the Com­missioners to account. Quaere, If all the Commissioners die, whether the Execu­tors, 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 Re­medy but to put in a Traverse contrary Traverse. 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; [Page 182] 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 grie­ved 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 Of­fender happen to die before Distri­bution, Death of the Bankrupt. yet nevertheless the Com­missioners 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 Of­fender were living.

Allens Case in Chancery.

EEwards, a Citizen of York, that had April 1 Jac. R. born the Office of Sheriff there, be­ing 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 Octob. 1 Jàc. R. Creditors of London, by a Petition to Lord Chancelor, procured a Commission upon the Statute of Bankrupts against Edwards to Sir Thomas Bennet, Sir Willi­am Rumney, Mr. Nicholas Fuller and Mr. Richard Aldworth.

The Commissioners did sell by Deed Dece [...]b. 3 Jac. 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 Lands sold by the Commissio­ners with In­cumbrances be­fore he became a Bankrupt. respect of Incumbrances, being Mort­gaged 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 Last Certificate of the Commis­sioners proved this. 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 deli­vered within three years following; and it stood also incumbred with a Statute of [Page 184] 1500 l. to Alderman Boles himself defea­zible, first for 800 l. and after upon 200 l. more lent for 1080 l. (the 80 l. being in­terest) 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 May 4. Jac. Allen, and all the other Creditors that First Certifi­cate. sued out the Commission upon full consi­deration had of the Estate of the Bank­rupt, how it stood incumbred with the Mortgage, Statutes and Lease, made agreement with the Bankrupt and his Agreement by the Commissio­ners with the Bankrupt to take 10 s. in pound. 2. Of the Cre­ditors bound for the payment of it. Friends, to this effect, that the Credi­ditors 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) un­dertook 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 And the Bank­rupts Lands conveyed to them for secu­rity. The Agreement certified by the Commissioners. Refusal to per­form the Agree­ment. agreement was certified by the Commis­sioners; and they did also certifie that Allen after this agreement (being so Godly and Charitable) refused the a­greement, and sought the advantage of Law to the great loss and hindrance of the rest of the Creditors, and to the utter [Page 185] undoing of Edwards the Bankrupt, his Wife and Children for ever.

In execution of this Agreement 12 l. Depositions prove this. 10 s. was paid to one of the Creditors, and Books drawn by Mr. Fuller, and in­grossed ready for perfecting of the assu­rances.

All which notwithstanding Allen re­fusing the Agreement with Habersley, pre­ferred 1. One Credi­tor prefers his Bill, suggesting that the In­cumbrances were fraudu­lent. a Bill in Chancery against Ed­wards, Alderman Boles, Smith, Cheney, Wood and Edwards his Father (a man 80 years old) complaining that the Mort­gage, Statutes and Lease were all fraudu­lent, 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 The other Cre­ditors prefer a Cross Bill to perform the Agreement. 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 Al­lens Octob. 20. 16 Jac. 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 The Incum­brances decrced to be dischar­ged, and the Land to be en­joyed by the two Creditors. 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 De­cree made, that Allen and Habersley and [Page 186] their Heirs should enjoy the Land ac­cording 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 ano­ther Ahparent. motion, his Lordship staid the Li­berate, after the Extent upon that Sta­tute, and so it rested.

Allen having gotten the Incumbrance The Covenant proved in the Bargain and Sale. Commissioners sell Land for 400 l. which was worth 2400 l. (because of Incumbran­ces which were not real) and the Vendee would enjoy it for that against the other Cre­ditors. 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. with­in three years, they should pay the over­plus which it should be sold for above that 400 l. towards satisfaction of Cre­ditors; and all the Incumbrances being cleared within the three years, as afore­said, 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 By Affidavit of Goland 13 A­pril 1610. 6 Jac. Vendee gets possession upon the first Decree. Chancery to the Sheriffs of York there, to put him in possession of the Land, up­on the first Decree in Chancery made for him; and Allen with the under She­riff cast Edwards Children all out of Doors, and altho' the under Sheriff with Tears in his Eyes besought Allen to take com­passion on them, yet he would not yield to any thing, but turned them out in [Page 187] 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 Affidavit of weight. 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 Injun­ction 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 York­shire.

The Lord Chancellor being informed A Petition 17 Aug. 1610. 8 Jac. Bill revived to perform the a­greement of 10 s. in the pound. 8 Jac. 3 Nov. assignment. of this extremity by Petition and Affida­vit, 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 prose­cute, and Francis Moor he assigned to be of their Councel in Forma Pauperis.

[Page 188]This Cause coming to hearing, and the Agreement appearing confessed by Allens Answer, and proved by the Certi­ficate of the Commissioners and divers Witnesses, and the Covetous and uncon­scionable 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 Father­less and Motherless Children of Edwards being all Infants, not able to help them­selves considered.

The Lord Chancellor did Decree, that Agreement De­creed. 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 al­lowance for Costs of Suit, reasonable; and for this purpose his Lordship made a reference to Sir John Tindal to cast up Reference to a Master to cast up the Estate and Debts. 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 certi­ficate The Masters Certificate. of the Estate Real and Personal of the Bankrupt, and of the Debts, and [Page 189] made all allowances as by the Order was directed, and gave 200 Marks to Allen for Cost of Suit, and 100 Marks to Ha­bersley, 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, a­mounting to 600 l. or thereabouts.

The Lord Chancellor, upon reading 13 Noc [...]. 1 [...] Jac. 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 Pa­rents lost both their lives in following their Suit to be relieved against Allens Unchristian and Barbarous Dealings.

The Lord Chancellor did make De­cree, Decree that the Trustee should receive his own Mony, and de­part with the Estate. that Allen should receive the Mo­ny 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, [Page 190] who would be bound to pay the Credi­tors, and Allen also, and yet pay the overplus being 600 l. or thereabouts, a­mongst the poor Children.

For not performing the Decree Allen is committed.

The pitiful Cries of the Father and Trustee for not performing the Decree, is com­mitted. the Mother dying, as is aforesaid, and of the poor Orphans, do call to God for relief, and moved the heart of the Chan­cellor to take compassion upon them, and to take such order as he hath done.

Note, Where Allen in the Bill of In­dictment Indictment, for that the Chan­cery decreed Lands after Judgment at Law. setteth forth, that he had two Judgments for his Debt in the Common Pleas, before the Suit in Chancery be­gun, which Judgments he supposeth to be called into Examination by this Suit and Decree in Chancery against him, contra­ry 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 Chan­cery; neither were they so much as spo­ken of or informed to any Councel or others, and there is no Order in Chance­ry concerning those Judgments.

Secondly, That these Judgments to be a year after Edwards became a Bank­rupt, for he was Bankrupt Primo Jacobi, [Page 191] and the Judgments wore Secundo Ja­cobi.

Note, That these Judgments stand in force against the Bankrupts Body, or any Lands or Goods which he should after­wards 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 Commis­sion, and attended in person in executi­on of that Commission at all meetings, by which he himself did decline from the strength of his Judgments, and sub­mitted himself to be ordered by the Commissioners for his Debt before any Suit in Chancery begun.

Note, Where Allen by his Bill of In­dictment supposeth his Freehold to be drawn in question in the Chancery, con­trary to the Statute in Magna Charta, it is to be answered, that albeit Freeholds Freehold Lands ordered in Chancery upon Equity, where the Common Law cannot re­lieve the Par­ties. have been always ordered in Chancery upon Equity, where the Common Law cannot help the Parties, yet in this par­ticular 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 Chan­cery, and had it conveyed accordingly [Page 192] upon matter of Equity ( viz.) because there was but 30 l. unpaid of the Mort­gage 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 pub­lished 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 on­ly at the Suit of the Creditors, in imi­tation and according to the Equity of the Statute of Bankrupts.

[Page 193]That where such Suits are exhibited in the behalf of the Creditors, it be not enough that the Creditors are na­med in the Bill or Petition; but that there shall be always affixed to the Bill or Petition the agreements of the Cre­ditors 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 Re­ference 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 Commissio­ners shall also be heard the Informati­ons 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 sparing­ly, by the Discretion of the Court, up­on hearing what may be alledged on both sides.

[Page 194]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 him­self in case of Recognizances or Statutes, but only against the person of the In­solvent.

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

Plea to an Indebitatus Assumpsit that it was Assigned by the Commissi­oners of Bankrupts.

ACtia non, quia dicit ꝓtestando quod ipse non assumplit super le modo & forma prout p̄d (Queŕ) versus [...]um quernꝭ protestando etiam Protestation. quod idem H. non suit in [...]evitat p̄fa [...] querenti in aliqna denariorum summa ultra decem & [...]o Libras pront p Billam p̄d superius supponitꝭ ꝓ plito idem H. di [...]it qd sd I [...] existen stiv­ditꝭ natus hujus [...]egni Anglie p di­versos Annos pro [...] ante Fes [...]um Sed Michis Archi Anno negni, &c. 14 fuit communis pandoxa [...]or ac p rotum idem tempꝰ victum & facultatem su­am vivendi quesivit Et idem Iac sic negotians & victum suum querens infra tempus illud apud D. p̄d in Com K. sd devenit indebitatꝭ quibusdam I. H. & I. B. & alijs Creditoribꝰ suis existen subditis natis hujus Regni Anglie in diversis denariorum su [...]is attingen in toto ad sum̄am 200 l. lega­lis, &c. & amplius qd (que) idem Iac sic idebitatꝭ existen infra tempꝰ p̄d selt 1 Die Maij Anno, &c. xiij incepit eu­stodire Domum suam Mansional apud D. p̄d & Latitare ꝓ timore Arresta­c̄onis ꝓ debis p ipsum Iac p̄far I. D. [Page 207] & alijs Creditoribꝰ suis debi [...] Et si­milit Act of Bank­rupts denial. adtunc dedit mandatum servien suis negare Creditoribꝰ suis ipsum p̄d I. esse in ead Domo sua quando fuit intus in ead ad ꝓerastinand debirores suos de veris & justis Debis suis eis p p̄d I. adtune debit & insolu [...] Ac ra­tione pmissor (rum) idem I. pd [...] die Maij Anno, &c. xiij supradict apud I. p̄d in poch & warda p̄d debitis suis pdc̄is tunc minime solut existen manifeste devenit & adhuc existit decoctor Ip­so [...] I. sic decoctor̄ existen postea scilt 28 die Octob Anno Regni, &c. xiij. su­pradicto apud Wes [...]m in Com Midd & ad Petitionem p̄dic̄o (rum) I. H. & I. Petition. D. E. Com̄it C. tum & adhuc Dom Cancellario Anglie facc & exhibit ꝓ remedijs suis verlus p̄fat I. tunc ex­isten decoctor̄ in hac parte habend ijs­dem I. I. & ceteris Creditoribꝰ p̄d I. de debis suis p̄d tunc minime sa­tisfact quedam Commissio dicti Dom Commission. Regis super Statur contra Decocto­res edit & provis sub Magno Sigilla dict Dom Regis sigillat & hic in Cu­ria ꝓlac geren dat apud Westm p̄d eijsdem die & Anno quivusdam I. P. R. A. Ar̄ R. B. W. B. & N. S. di­rect fuit p quam quidem Com̄issionem dictꝰ Dominus Rex tunc dedit plenam potestatem & authoritatem p̄d Com­missionar̄ quatuor vel tribꝰ corum quo­rum idem Dominus Rex p̄d I. P. [Page 208] vel R. A. unum esse voluit juxta s [...] ­palia Statuta de Decoctoribꝰ in hu­jusmodi Casu edit & provis in dicta Com̄issione menc̄onat non solum con­cernen, &c. ꝓut supra (omitta) tan­tum hec verba, & alterius eorum) us (que) ꝓut p eandem Commission plenius apparet Virtute cujus quidem [...]om­missionis Et vigore Statutorum p̄di­ctorum p̄d, I. &c. tres Com̄issionar de Com̄issionar p̄d accept super se onere execucon Commissionis p̄d super ma­turam deliberationem inde capt ꝓ re­medio Creditorum p̄d postea sclt 10 die Nov. Anno Regni, &c. xjv supradict apud London p̄d in poch & warda p̄d inven [...]runt p̄d Iac ante emanac̄onem Com̄issionis pd devenisse & fuisse deco­ctorem Commissioners find him a Bankrupt. ad omnia intentiones & ꝓposi­ta infra ꝓvision & intencon Statu­to (rum) pdict ac diversa deba & denario­rum summas fore tune debita & pti­nen Statuti p̄d Iacobi a sepalibꝰ p­sonis Et postea selt eisdem die & An­no apud London p̄d in poch p̄d ijdem tres Commissionarij p quandam In­denturam suam assignationis inter ip­sos Assignment of Debts. I. &c. ex una parte & pd I. H. & I. O. ex altera pte fact cujus alte­ram ptem Sigillis p̄d I. P. &c. sigil­lat idem H. hic in Curia p̄fert cujꝰ dat est ijsdem die & Anno quantum in ipsis fuit & Legitime potuerunt assig­naverunt & transposuerunt p̄d I. H. [Page 209] & I. B. omnia & singula separalia debita & denar̄ summas pticulariter & experss̄ menc̄onar in quadam Sche­dula sive Inventorio indentat eid In­dentur̄ annex’ & onerabi [...] debit p pso­nas in dicta Schedula nominat vel aliquam eorum tunc debit p̄dicto I. ha­bend & tenend (Anglice sue forth) re­cuperand recipiend possidend & gau­dend omnia & singula debita & dena­riorum summas in dicta Schedula ex­pressa Ac omnia alia debita ꝑ cand Indenturam assignat & quamlibet p­tem inde ipsis dictis I. H. & I. D. Executoribꝰ Administratoribꝰ & Assig­nat suis & cuilibet eo (rum) ut eorum ꝓ­prium statum imppetuum In qua quidem Schedula inter alia contine­tur quod decem & Octo Libre fuer̄ debit & ptinen status p̄d Iac p ipsum H. prout p candem Indenturam & Schedulam p̄d hic in Curia ꝓlar ple­niꝰ apparet Quorum p̄textu idem H. onerabilis devenit & adhuc existit ad solvend p̄fat I. G. & I. D. omnia de­bita & denariorum sum̄as p ipsum at debit Statui p̄dicti Iacobi. Et hoc, &c. unde, &c.

Plea to Bond for performance of Cove­nants (or Articles) for payment of Rent, that the Plaintiff was a Bank­rupt, and that the Defendant paid the Mony to the Assignees of the Com­missioners of Bankrupts.

QUibꝰ l [...]ct & auditis idem Det ’ [...] ­cit qd p̄d Quer̄ Actionem suam p̄d inde versus eum habere seu manutenere non debet quia dicit quod Articuli p̄dc [...] in Condic̄one p̄d ( reci­ting the Articles) prout ꝑ Articulos pdictos inter alia plenius liquet & ap­paret Et quoad p̄d xxijl. in Articu­lis p̄d menc̄onat fore solvend p ipsum H. p̄fat R. ad finem p̄dc [...] termin sex Anno (rum) Idem H. ulterius dicit quod post confection script obligatorij p̄d & Articulo (rum) p̄d & ante p̄d finem & expi­rationem p̄d termin sex Annorum sclt decimo septimo die Iulij Anno Reg­ni p̄d nuper Dom Regis sex to decimo apud Civitar Exon p̄d p̄d R. indebi­tatus fuisset euidam M. B. ac diver­sis alijs psonis Creditoribꝰ p̄d R. ( ex­isten subdit nar infra hoc Regnum Anglie) in diversis seperalibꝰ dena­riorum summis in toto se Attingen ad Mille Libras Legalis Monete An­glie ipso (que) S. sic indebitat existen idem R. postea sclt 17 die Iulij Anno [Page 211] Regni dict Dom Regis nunc 16 sup̄ ­dicto ijsdem Creditoribꝰ de debitis su­is minime satisfact existen apud Ci­vitat Exon p̄d pro debito Arrestat [...]uit Et super Arrestationem p̄d ad prisonam dicti nuper Regis apud Ci­vitat Exon p̄d ductus fuisset Et ibi­dem Act of Bank­rupcy remain­ing two Months in Pri [...]on. in Prisona p spatium duorum mensium tunc prox’ sequen & amplius remansit ad intentionem defraudand Creditores suos p̄d de debitis suis p̄d ꝑ ipsum R. sic ut p̄fertur debit Et su­perinde postea sclt 1 die Octo [...] An̄o 16 supradict apud Civitar Exon p̄d I­dem R. devenit decoctor (Anglice be­came a Bankrupt) infra Statut con­cernen decoctores nuper edit & provis̄ Quod (que) p̄d R. p̄dicto tempore quo ut p̄fertur de [...]enit decoctor fuisset subditꝰ p̄d nuper Dom Regis natus infra hoc Regnum Anglie videlt apud Civitat Exon p̄d Et adtunc & ibid & p mul­tos Annos tunc ulterius elapsos que­rebat victum suum p viam Emendi & Merchandizandi Et ulteriꝰ idem H. dicit quod superinde post [...]a sclt 17 die Febr̄ Anno 16 supradict apud Westm in Com Midd ad Petitionem p̄d M. & aliorum Creditorum p̄d R. E. D. Mil adtunc Dom Custodi Magni Si­gill Anglie ante tunc exhibit & fac [...] ꝓ remedijs suis versus p̄d R. tunc existen decoctorem (Anglice became a Bankrupt) in hac parte habend p̄fat [Page 212] M. & ceteris Creditoribꝰ p̄d R. de de­bitis suis p̄d tum minime solut sive satisfact existen quedam Commissio p̄d Commission. nuper Dom Regis super Statut con­tra decoctores (Anglice Bankrupts) Edit & ꝓvis̄ sub Magno Sigillo dicti nuper Domini Regis Angli [...] sigillat geren da [...] apud Westm p̄d p̄d 17 die Febr̄ Anno 16 supradict dilectis & fidelibꝰ dict nuper Dom Regis I. N. R. S. &c. direct fuit p quam quidem Com­missionem dictꝰ nuper Dom Rex per­pendens debitam executionem tam Statut tangen ordines pro decoctoribꝰ (Anglice Bankrupts) in Parliamento incept tent apud Westm p̄d scdō die Aprilis Anno Regni p̄charissime So­roris [...]d [...] nuper Dom Regis Dn [...] Elizabethe nuper Regine Anglie 13 edit & probis̄ quam etiam Statut edit in Parliamento incept & tent apud Westm p̄d 19 die Marcij Anno Reg­ni Dom Ia [...]obi nuper Regis Anglie primo [...]oti [...] 37 Intitulat Actus ꝓ meliori relevamine Creditorum versus tales qui deven deco [...]tores dedit ple­nam potestatem & authoritatem ijsdem quin (que) Commissionar̄ quatuo [...] vel tribꝰ eo (rum) quorum p̄d’ I. N. vel p̄d’ W. R. unus esse voluit juxta eadem Statuta & utrum (que) eorum non solum concernen p̄d’ decoctorem corpus ejus terras li­beras (Anglice Freehold) & cus [...]um [...] (Anglice Copyhold) bona debita & alia [Page 213] quecun (que) sed eciam concernen omnes alias ꝑsonas que ꝑ concelamentum clameum vel alteri offenderent tangen p̄miss̄ vel aliquam partem inde contra intenc̄onem & ꝓposit p̄dicto (rum) Statuto­rum vel alteriꝰ eorum ad faciend’ & exequend▪ omnes & quas [...]ibet rem & res quascun (que) tam erga & ꝓ satisfacti­one & soluc̄one p̄dictorum Creditorum quam erga & ꝓ omnibꝰ alijs inten­tionibꝰ & propositis secundum ordina­tionem & provisionem eorundem Sta­tutorum vel alterius [...]orum p quam quidem Commissionem dictus nuper Dominus Rex voluit & dedit in man­datis p̄dictis Commissiona [...] quatuor vel tribꝰ [...]orum quorum p̄d’ I. N. & Quorum. W. R. unum esse voluit ad ꝓcedend’ ad executionem & accomplement pdict Commissionis secundum veram inten­tionem & proposit eorundem Statuto­rum & alterius eo (rum) [...]um omni dili­gentia & effectu secundum specialem fi­duciam dicti nuper Dom Regis in ijsdem Commissionar̄ r [...]posit prout p eandem Commissionem plenius appa­ret Virtute [...]ujus quidem Commissi­onis a [...] vigore Statutorum p̄dicto (rum) p̄d’ I. N. &c. tres Commissionarij p̄d’ postea sclt 9 die Nov. Anno Regni nu­per Regis Caroli 17 apud Civitat Exon p̄d’ in debita juris forma ad­judicaverunt & declaraverunt ipsum Commissioners adjudge him a Bankrupt. st. esse decoctorem infra Statut p̄d’ [Page 214] Et adtunc & ibidem concesserunt as­signaverunt Assign the Debts. & posuerunt p̄dictam sum­mam xx l. in Articulis p̄dictis supe­rius menc̄onat fore solvend’ p̄fat R. p p̄d’ H. inter alia p̄fat M. tunc un Creditorum p̄d’ R. existen scdm for­mam Statut p̄d’ Et idem H. ulteri­us dicit quod ipse idem H. omnes alias convenc̄ones in Articulis p̄dict menc̄onat ex parte ipsius H. ꝑformand’ & custodiend’ a tempore confectionis scripti obligatori j & Articulorum p̄dictorum hucus (que) bene & fidelit ꝑim­plevit & custodivit scdm formam & effectum scripti obligatorij Et Arti­culorum p̄dictorum Et hoc, &c. unde, &c. Cum hoc qd’ idem H. veri [...]icare vult quod p̄d. P. W. adhuc superstes & in plena vita exis [...]it videlt apud Averment. Com Exon pd’, &c.

Scire Fac’ pro Creditoribus sur Stat’ de Bankrupts sur Judgment recuper’ per le Bankrupt envers Executrix.

CArolus, &c. Vic [...]anc salutem Cum T. S. alias scilt Termino Sct Mich An̄o Reḡ nostri scdō coram R. H. Mil F. H. Mil. G. C. Mil & H. Y. Mil tunc Iusticiarijs nostris de Banco apud Westm ꝑ Iudici [...] ejus­dem Curie re [...]uperass versus A. B. Vid ꝑ nomen A. B de C. in Com p̄d Executricis Testamenti R. B. Mil Judgment. nuper, &c. tam quoddam debitum 400 l. quam 50 s. que eid T. S. in ead Curia nostra adjudicat fuer̄ pro dam­nis suis que huit occasione detentionis debiti illius si ead A. tanta Bona & Catalla que fuer̄ p̄d R. tempore mortis sue in Manibꝰ suis Administrand ha­buisset & si non huisset tunc damna pdca de Bonis & Catallis p̄d A. pro­prijs levand unde convict fuit prout ꝑ record & process̄ inde in ead Curia no­stra residen liqu [...]t manifeste Cum (que) superinde postea scilt Termino Sc [...] M. Anno Regni nostri quarto in p̄dict Curia nostra de Banco ꝑ tunc Ius [...]ici­arios nostros ibid conc fuisse quod p̄d T. S. heret executionem ver [...]us p̄fat [...] A. de de [...]o & damn p̄dict de Bonis & Catallis p̄d in forma p̄dict levand p [Page 216] ipsius A. defalt prout ꝑ record Et ꝓ­ [...]s [...] in ead Curia nostra re [...]den siliter liquet manifeste Cum (que) etiam p̄d T. S. ꝓ citiore executione judicij pd hend in p̄dict Termino Sc [...] M. Anno quar­to supradict scilt 9 die Oc [...]ob isto eod Termino ꝓsecut fuiss & impetrasset extra p̄d Curiam nostram de B. p̄d apud Westm p̄d quoddam breve no­strum de Fi. Fa. tunc Vic K. direct ꝑ Fi. Fa. quod quidem bre nos precepimus quod ipse de Bonis & Catallis que fucr̄ p̄d R. B. &c. in manibꝰ p̄fat A. B. &c. fieri faceret tam p̄d debitum 400 l. ( ut in Fi. Fa. us (que) unde convict’ fuit) Ad quem diem coram disdem tunc Iusdi­ciarijs apud Westm venit p̄d T. S. ꝑ I. H. tunc Attornat suum Et tunc Retorn▪ Vic (videlt) C. C. Mil tunc mand Iusticiarijs nostris apud Westm p̄d qd p̄d A. nulla huit Bona seu Catalla in Balliva sua que fuer̄ p̄d R. tempo­re mortis sue in manibus suis Admi­nistr̄ unde debitum & damna p̄dca sive aliquam inde pcel ullo modo fieri facere potuit Et qd p̄d A. nulla huit Bona seu Catalla sua ꝓpria in Ballia sua unde damna p̄d seu aliquam inde pcell fieri facere potuit Super quo Testatum fuit in ead Curia nostra ex [...]te ipsius T. S. quod p̄d A. satis ha­ [...]uit de Bonis & Catallis que fucr̄ p̄d R. tempore mortis sue in manibꝰ ipsiꝰ▪ A. Administrand infra libertat quin (que) [Page 217] portuum unde debitum & damna p̄dca fieri & levare potuit super quo p̄d T. S. p̄dcō Termino Sc [...] M. scilt 6 die N. Anno quarto supradict ꝓsecut fuit extra p̄dcam Curiam nostram de Ban­co p̄d quoddam bre nostrum de Testat’ Testatum Fi. Fa. al’ cin (que) Port▪ Fi. Fa. tunc Constabulario ( ut supra us (que) direct’) ꝑ quod quidem breve nos p̄fat Constabulario, &c. p̄c [...]pimꝰ quod ipse de Bonis & Catallis que fuer̄ p̄fat R. B. nuper dict▪ &c. in manibꝰ p̄fat A. ꝑ nomen, &c. Executricis Te­stamenti p̄fat R. existen infra liberta­tes quin (que) portuum fieri facerent tam p̄d dibitum 400 l. ( ut in communi Fi. Fa. us (que) unde convict fuit) Quod qui­dem breve postea & ante retorn br [...]vis illius scilt 10 die p̄d Mensis Novem­bris Anno Regni nostri quarto p̄no­bili Theophilo Comiti Suff. tunc & Retorn del Constable de Dover Castle. adhuc Constabulario p̄d Castri Dov [...]r̄ ac custod quin (que) portuum p̄d & mem­brorum eorundem in forma juris exe­quend deliberat fuisset Ad quem diem scilt a die Sc [...] Martini, &c. coram ijs­dem tunc Iusticiarijs nostris apud Westm p̄d venit p̄d T. S. ꝑ Attornat suum p̄dcum Idem (que) T. Comes S. tunc Iusticiarijs nostris p̄dict apud Westm p̄d ad diem il [...] mand quod p̄d A. B. nulla huit Bona seu Catalla que fuer̄ p̄d R. B. tempore mortis ( ut supra us (que) facere potuit) quod (que) ead A. ante adventum brevis istius sibi direct [Page 218] quedam Bona & Catalla que [...]uer̄ p̄d [...]. tempore mortis sue ad valentiam Devastavit. 100 l. devastasset Et in usum suum ꝓprium convertisset Et ulterius Iu­sticiarijs nostris certificat quod p̄d A. nulla huit Bona seu Catalla sua ꝓpria unde damna p̄d seu aliquam inde pcel [...] fieri facere potuit prout p breve & retorn inde in dicta Curia nostra de Banco pd residen liquet ma­nifeste Cum (que) p̄d T. S. iij die Maij Anno Regni nostri sexto indebitat fu­isset cuidam W. N. Gen in summa 88 l. & 7 s. solvend eid W. cum inde requisitus fuisset Ac etiam cum p̄d T. S. adtune indebitat fuisset cuidam W. M. Gen in summa 34 l. solvend eid W. M. cum inde requisitus fuisset Ac eciam cum pd T. S. p̄ [...] iij die Maij Anno Regni nostri sexto supra­dict indebit fuisset cuidam R. S. in summa 45 l. solvend eid’ R. S. siliter cum inde requisitꝰ fuisset eisdem W. N. W. M. & R. S. tunc existen sub­ditis natis Regni nostri Anglie Ac eciam cum p̄d’ T. S. adtunc indebi­tat fuisset diversis alijs psonis Cre­ditoribꝰ ipsius T. siliter existen subdi­tis natis Regni nostri Anglie in di­versis alijs denariorum summis in to­to se attingen and 5013 l. & 12 s. Le­galis Monete Anglie Ipso (que) T. S. sic indebitat existen ac p̄dict 100 l. ꝓ valore Bonorum & Catallorum que [Page 219] fuer̄ [...]fat R. B. tempore mortis sue p pd’ A. ut p̄fertur devastar dicto T. S. minime solut sive levat existen Idem T. S. postea scilt ij die Iunij Anno Regni nostri sexto supradicto apud Maidstone p̄fat W. N. W. M. & [...]. S. ac ceteris Creditoribꝰ [...]dc [...] T. S. de debitis suis p̄ [...] ’ minime solut existen Act del Bank­rupcy. incepisset custedire Domum suam ibid’ existen ad intentionem defraudare Cre­ditores suos p̄dictos de debitis suis eis ut p̄fertur p p̄d’ T. S. d [...]bit Et superinde eod’ ij die Iunij Anno sexto supradict apud M. pd’ manifeste deve­nit Decoctor (Anglice a Bankrupt) Qui quidem T. S. [...]dcō tempore qu [...] ipse devenit Decoctor fuit & adhuc est subditꝰ natus hujus Regni A. apud M. p̄d’ & adtunc & p nonnullos An­nos ante tunc apud M. p̄d’ usus fuit Arte seu Misterio Brasiatoris & que­rebat facultatem suam Divendi p vi­am Emendi & Dendendi Ac cum po­stea scilt xjx die Auḡ Anno Regni no­stri septimo apud M. pd’ ad Petitio­nem Petitio. p̄dicto (rum) W. M. W. N. & R. S. & alio (rum) Credito (rum) p̄d’ T. S. Thome Dnō Coventry Dnō Custod’ Magni Sigilli Anglie exhibit & fact pro re­medijs luis versus p̄fat I. S. tunc existen Decoctorem in ea pte hend’ eis­dem W. N. W. P. & R. S. tunc mini­me solut aut satisfact existen quedam Commissio nostra super Statut contra Commiss [...] ▪ [Page 220] Decoctores edit & provi [...] sub Magno Sigillo nostro Anglie sigillat in Cu­ria nostra [...]d’ coram p̄fat Iusticiarijs nostris apud Wes [...] de B. p̄d’ ꝓlat geren dat apud C. in Com p̄d’ Midd’ p̄d’ xix die Au [...] Anno septimo supra­dict [...]ui [...]sdam E. D. Mil P. P. Armiḡ T. B. Arm W. H. Gen & A. P. Gen spial Commissionar̄ nostris & de­dimus plenam potestatem & authori­tat eisdem Commissionarijs quatuor vel tribꝰ eorum quorum p̄d’ P. P. aut p̄d’ T. B. unum esse volumus juxta [...]eperal Statut de Decoctoribꝰ in hu­jusmodi casu cdit & ꝓvi [...] in dicta Commissione men [...]onat & quodlibet vel ullum eor (rum) non solum concernen corpus ipsius T. S. Decoctoris Ter­ras Tenementa libera & custumaria Bona Debita & alias Res quascun (que) verum eciam concernen omnes alias psonas quascun (que) que p concealamenta vel aliter offenderent tangen pdca p̄missa vel aliquam ptem inde contra veram intentionem & ꝓposit p̄dicto (rum) Statuto (rum) & eo (rum) cujus [...]ibet vel ali­cujus corum ad faciend’ & exigend’ omnes & quas [...]ibet r [...]m & r [...]s quas­cun (que) tam erga & ꝓ soluc̄one & sa­tisfactione p̄dictor (rum) Creditorum quam erga & pro omnibus alijs intenti­onibꝰ & ꝓpositis scdm provisionem & ordinationem eorundem Statutorum p quam quidem Commission nos volu­mus [Page 221] & dedimus in mandatis qd’ p̄dict Quorum. Commissionarij vel quatuor vel t [...]e [...] eo (rum) quorum pd’ P. P. aut p̄d’ T. B. unum esse volumus ad ꝓcedend’ ad ex­ecutionem & perimpletion Commissi­onis p̄d’ cum omni diligentia & effectu scd [...] fiduciam nos [...]ram in [...]is reposit ꝓut p eandem Commissionem pl [...]nius liquet & apparet Divtute cujus qui­dem Commissionis ac vigore Statu­torum p̄dicto (rum) [...]dict P. P. T. B. W. H. & A. P. juxta Officia sua obliga [...] cum omni diligentia ad optima [...] Sci­entiam Artem & Industriam eorum Commission p̄d’ ex [...]qui pformare & perimplere diversis sepera [...] temporibꝰ in ead’ ꝓcedebant a [...] Testes ead’ tan­gen diligen [...] & intente examinavcr̄ ac p easdem examinationes iij die M. Anno Regni nostri septimo apud M. p̄d’ invener̄ p̄d’ T. S. fore Decoctorem infra ꝓposit & intentionem Statut [...]d’ & sic fore & devenire ratione evitatio­nis & absentionis ipsius T. S. ab Ar­rest Creditorum suorum & custoditio­nis Domus ipsius T. ob metu Ar­restac̄onis ad s [...]cta diversorum Credi­torum suorum ꝓ veris & justis debitis ꝑ ipsum debit Ac c [...]iam pro [...]o qd’ Absentin [...] p̄dict T. S. occulte & s [...]cre [...] a D [...]mo sua Mantionali decessit p secret fuga­tionem in ptes ultra Mare & absen­tationem sui ipsius extra hoc signum ꝓ debitis ipsius T. S. p ipsum tunc [Page 222] & p̄d’ iij die M. Anno septimo sup̄dict verment. dibit Ipsi p̄d’ T. B. W. H. & A. P. virtute Statut & Commission p̄d’ de & pro Causis supradictis p̄d’ iij Die M. Anno septimo supradict apud M. p̄d’ declaraverunt & adjudicaverunt p̄d’ T. S. fore Decoctorem a primo die I. Anno Dom 1630. supradict & sic fuisse & semper ab e [...]d’ primo die I. conti­nuasse eciam ubi p examinationis ap­paruisse p̄d’ T. B. W. H. & A. P. Com­missar̄ p̄d’ [...]d’ p̄d’ T. ante p̄dice diem I. & continue postea fuit p̄d’ iij die M. Anno septimo supradict extitit ve­re indebitat p̄d’ seperalibꝰ psonis & a [...]iqui querebant relevac̄onem p Com­mission p̄d’ & contribuere erga custa­gia ꝓsecutionis & executionis ejusdem Commissionis in sepera [...] denariorum summis in toto se attingen ad 5013 l. & 12 s. ultra 40 l. expendit p easdem [...]sonas in custaḡ circa ꝓsecution & ex­ecution Commissionis p̄d’ Ac eciam ubi p examinationem p̄d’ apparebat p̄d’ T. B. W. H. & A. P. quod p̄d’ T. S. p̄dict primo die Iunij Anno Dom 1630. supradict & diu ante & postea fuit & p̄d’ iij die M. Anno septimo su­pradic [...] existit seisitꝰ in Dominico suo de Statu Hereditario de & in uno Mesuagio, &c. Ac eciam ubi appa­rebat p̄fat T. B. W▪ H. & A. P. Com­missionarijs p̄d’ qd’ p̄d’ summa 100 l. ꝓ valore Bonorum & Catallorum p̄d’ [Page 223] p p̄fat A. sic ut pfertur devastat tunc debit fuit p̄fat T. S. a p̄fat A. B. p̄dc [...] T. B. W. H. & A. P. pro dand’ satisfactionem p̄dictis seperalibꝰ per­sonis Creditoribꝰ p̄fat T. S. ꝓ debitis suis pdictis & ꝓ ulteriori executione Assignment Enrolled. Statut & Commission p̄d’ ꝓ & in con­sideratione summe 360 l. Legalis Mo­nete Anglie ipsis p̄fat T. B. W. H. & A. P. ꝑ p̄fat T. G. solut iij die Maij Anno [...]egni nostri septimo su­pradict apud M. pd’ inter ipsos T. B. W. H. & A. P. p nomina, &c. ex una [...]te & pfat T. G. p nomen, &c. ex al­tera parte factam cujus alteram par­tem sigillis pd’ T. B. W. H. & A. P. signat & in Cancellaria nostra infra sex Menses tunc postea de recordo ir­rotulat geren dat eisdem die & Anno idem T. G. hic in Curia nostra pd’ coram Ius [...]iciarijs pd’ p̄fert dederunt & concesserunt pfat T. G. totum Sta­tum jus titulum & interesse, &c. Ac ec [...]am [...]dc [...] T. B. W. H. & A. P. Com­missionarij pd’ p Indentur̄ suam pd’ assignaverunt & trans [...]ulerunt pfat T. G. Executoribꝰ & Administratoribꝰ suis pd’ debitum sive summam 100 [...]. pd’ T. S. p pfat A. B. ut p̄fertur in­vent esse debit ac omne legale ꝓ [...]icun (Anglice Interest Mony) & alia bene­ficium & ꝓ [...]ic [...]um ꝓveni [...]n vel surgen ex inde au [...] superinde debit ꝓut p In­denturam pd’ inter alia plenius liquet [Page 224] & apparet Et idem T. G. in facto Devastatio. dicit [...]d’ pd’ debitum sive sum̄am 100 l. per Commissionarios pdict ut pfertur invent esse debit & insolut p pfat A. B [...]d’ & p eosdem Commissionarios pd [...]ct [...]. [...]. ut pfertur assignat & pd’ 100 l. ꝓ valore Bono (rum) & Catallo (rum) pd’ [...]. B. tempore mortis sue que pfat Constabular̄ Castri Dover̄ & Custos quin (que) Port [...]um pd’ ut pfertur retorna­vit super p̄dcō brevi de Fi. Fac. quod p̄dict A. B. ut pfertꝭ sunt unum & idem deb [...]um & non aliud ne (que) diver [...] [...]uod (que) idem debitum sive sum̄a 100 l. adhuc totaliter̄ insolut existit & assig­na [...] fuit in forma pdict pdcō T. G. Et ulte [...]iꝰ quod pd’ Dna Bingly Did’ in pd’ Indentura Assignac̄onis mentio­nat A verment. & pd’ A. B. in p̄dcō brevi de testat Fi. Fa. & retorn inde nominat modo defende [...]s sunt una & ead’ psona & non ali [...] [...]c diversa ꝓut ex insinuac̄one pd’ T. G. assignat debi [...] p̄d’ T. S. Decocto­ris s [...]dm formam Statut de Decocto­ [...]ꝰ (Anglice Bankrupts) in ea parte ꝓv. [...] accepimꝰ Et quia volumꝰ, &c. [...] ꝓ [...]os, &c. si quid, &c. quare pd’ T. G. ex [...]utionem verlus eam de pd’ 100 l. ꝓ valore Bono (rum) & Cattalo (rum) que fuere R. B. tempore mortis sue p pd’ A. ut p̄fertur devastat p̄fat T. G. p pd’ Com­missionarios in forma p̄d’ assign here non debeat juxta formam Leges & Stat [...]dict si, &c. Et habeas, &c.

An Indenture of Assignment by the Commissi­oners of Bankrupts.

THIS Indenture made, &c. in the Third Year of the Reign of our Sovereign Lord and Lady William and Mary, by the Grace of God of England, Scotland, France and Ireland King and Queen, Defenders of the Faith, &c. Be­tween A. B. Esq; C. D. Gent. and E. F. Gent. of the one part, and T. R. of Lon­don Stationer, of the other part. Where­as the King and Queens Majesties Commission, under the Great Seal of England, grounded upon the several Sta­tutes made concerning Bankrupts, bear­ing date at Westminster the, &c. day of, &c. last past, hath been awarded against Elizabeth K. of, &c. in the County of, &c. Chapwoman, and directed to the said A. B. C. D. E. F. together with W. B. Esq; and J. G. Gent. thereby giving full Power and Authority unto the said Commissioners, four or three of them, Commission. whereof the said A. B. or W. B. to be one to execute the same; As by the said Commission, relation being thereunto had, the same doth, and may more fully and at large appear. And Whereas the said Commissioners, Parties to these Pre­sents, or the major part of the Commissi­oners by the said Commission authorised, having begun to put the said recited [Page 226] Commission in Execution, upon due ex­amination of Witnesses, and other good proof upon Oath before them taken, do find that the said E. K. hath for the space of six years last past, or thereabouts, used and exercised the Trade and Profession of a Milliner or Country Mercer, in Buy­ing and Selling of Silks, Stuffs and other Wares and Commodities belonging to her said Trade, at her House and Shop in C. aforesaid; and sought and endea­voured to get her Living by Buying and Selling, and that she the said E. K. so seek­ing and endeavouring to get her living by Buying and Selling, during the time of her said Trading and Dealing, did become just­ly and truly indebted, and still doth owe and stand indebted unto the above na­med T. R. and others her Creditors in the sum of Three Hundred Pounds of Lawful Mony of England, and upwards; Become Bank­rupt. and being so indebted, she the said E. K. did in the judgment of the said Com­missioners, Parties to these Presents be­come Bankrupt to all intents and pur­poses, within the Compass, true intent and meaning of the several Statutes made concerning Bankrupts, or within some, or one of them, before the date and su­ing forth the said Commission. And Whereas also the said Commissioners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, having also found out and discovered, that the said [Page 227] E. K. at the time, and since she became a Bankrupt, as aforesaid, was possessed of, and interested in divers Goods, Wares and Merchandises, Houshold-stuff and Implements of Houshold, Bedding, Lin­nen, Brass, Pewter and other Commodi­ties; and that other Goods of hers were Goods. removed and come to the Hands, Cu­stody and Possession of divers and sun­dry Persons, since the time as she the said E. K. became a Bankrupt, as afore­said, and such Goods being returned, and the same, and all other the Goods, Wares and Merchandizes Houshold-stuff and Implements of Houshold, and other Commodities remaining in the House and Shop of the said E. K. were seised Seised. by vertue of the Commissioners Warrant, and the same being so seised, the Com­missioners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, caused such Goods, Wares, Merchandizes and Commodities to be inventoried and duly appraised by honest Men of Skill and Appraised. Judgment, who did value and apprise such Goods, Wares and Merchandizes, Hushold-stuff and Commodities, at the full values as by the particular Invento­ry and Appraisment sent unto the Com­missioners may appear. The value whereof in the total amounted unto the sum of 248 l. 17 s. of Lawful Mony of England. And Whereas the said T. K. [Page 228] hath since sold and disposed of all the before-mentioned Goods, Wares and Commodities, at the full values mentio­ned and expressed in such Appraisment, unto several persons, some whereof are paid for, and others as yet unpaid for, and owing upon Securities. And they the said Commissioners, Parties to these Presents, do further find, that there are divers Debts, sum and sums of Mony due and owing unto the said E. K. and her Estate by, and from divers and sun­dry persons, the particulars of which said Debts, and the several and respe­ctive Bankrupts Debts. persons names that do severally and respectively owe the same, are men­tioned, set down and expressed in a Sche­dule, indented to these Presents annexed. Now this Indenture witnesseth, That the said Commissioners, Parties to these Presents, by form and vertue of the said Commission, and the several Acts of Par­liament therein mentioned and expressed, and also for, and in consideration of the Covenants herein, after on the part and behalf of the said T. R. his Heirs Exe­cutors and Administrators covenanted to be performed and done, Have Order­ed, Assigned and set over, and by these Presents do as much as in them the said Commissioners lieth, and they lawfully may, Order, Assign and set over unto the The Assign­ment. said T. R. the before-mentioned sum of 248 l. 17 s. and every part and parcel [Page 229] thereof, being the same Monies raised and advanced by sale of the afore-men­tioned Goods, Wares and Merchandizes so belonging and appertaining to the said E. K. and her Estate, as before is expressed, and also all the Debts, sum and sums of Mony mentioned and expressed in the said Schedule an­nexed; and all other Debts due and owing unto the said E. K. by, and from the persons therein named as Deb­tors. To have and to hold the said sum of 248 l. 17 s. and every part thereof; and also the said Debts, sum and sums of Mony so mentioned, set down and expressed in the said Schedule annexed, and all other Debts, sum and sums of Mony whasoever, due and owing to the said E. K. and her said Estate, by, and from the respective persons therein na­med and mentioned as Debtors unto the said T. R. his Executors, Admini­strators and Assigns for evermore. In trust nevertheless, to, and for the use and behoof herein after mentioned and ex­pressed (that is to say) in trust to, and for the use, benefit, behoof and advan­tage of the said T. R. and all other the Creditors of the said E. K. who have already sought, or shall hereafter in due time come in as Creditors into the said Commission, and seek relief thereby, and contribute to the Charges therof, ac­cording to the Direction and Limita­tion [Page 230] of the several Statutes in that behalf made and provided, and to, and for none other use, intent or purpose whatsoever. And the said T. R. for himself, his Heirs, Executors, Administrators and As­signs, doth Covenant, Promise, Grant Covenant to sue for the Debts. and Agree to, and with the said Com­missioners, Parties to these Presents, and to, and with every and each of them, in Manner and Form following (that is to say) that he the said T. R. his Heirs, Executors or Administrators, or some, or one of them, shall and will with all convenient speed, and by all lawful ways and means sue for, and re­cover the Debts mentioned in the said Schedule hereunto annexed; and from, and after recovery and receit thereof shall, and will upon reasonable request, or notice in writing to him for that pur­pose made, or given by the Commissi­oners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, make and give a just, true and perfect Account un­to And make Ac­count. the said Commissioners of the said sum of 248 l. 17 s. before mentioned, as soon as he shall have received the same, and also of all such sums of Mony as he the said T. R. shall have had raised or received out of the Debts hereby assign­ed by force and vertue of these Presents, and shall pay over the said sum of 248 l. 17 s. and such other Monies as [Page 231] he shall have received on Account of the Debts, so by these Presents Assigned unto the said Commissioners, Parties to these Presents, or the major part of the Commissioners, by the said Commission authorised, or dispose thereof as they shall Order, Direct and Appoint in some convenient time from, and after he the said T. R. his Executors, Administrators or Assigns shall have had, and received the same, or any part thereof, to the end the said Commissioners may Order, Distribute, Divide and Dispose thereof for, and towards the Payment and Sa­tisfaction of the Debts due and owing by the said E. K. to such of her Creditors, who have already sought, or shall here­after come in and seek relief by vertue of the said Commission, and contribute towards the Charges thereof, as afore­said. And moreover, That the said T. R. his Heirs, Executors and Administra­tors shall and will from time to time, and at all times hereafter, well and suffi­ciently Covenant to save the Com­missioners Harmless. Save, Defend, keep Harmless and Indempnified the said Commissioners, Parties to these Presents, and every and each of them, their, and every of their Executors and Administrators, and his and their Bodies, Lands and Tenements, Goods and Chattels, of and from all manner of Actions, Costs, Suits, Arrests, Losses, Damages and Expences whatsoe­ver, which they or any of them shall, [Page 232] or may suffer, sustain, or be put unto, for, or by reason of this present Deed of Assignment, or any other matter or thing whatsoever, lawfully done or ex­ecuted by vertue of the said Commissi­on, or their, or any of their lawful in­termedlings or dealings in any of the Estate of the said E. K. by Force, Ver­tue or Colour thereof. In Witness, &c.

• The Schedule whereunto the Deed or Indenture annexed, refer.
• Debts due and owing to the said E. K. and her Estate.
• Imprimis, Due and owing from, &c. Item.

Another Form of an Assignment.

THIS Indenture made, &c. Be­tween A. B. of, &c. Esq; C. D. of, &c. and E. F. of, &c. of the one part, and J. S. of, &c. of the other part. Whereas the King and Queens Com­mission, under the Great Seal of Eng­land, bearing date at Westminster the day of last past, grounded upon several Statutes made concerning Bankrupts, hath been awarded against P. R. of, &c. directed to the said A. B. C. D. and E. F. and unto G. H. and J. K. Gent. thereby giving full Power and Authority unto the said Commissioners, four or three of them, whereof the said A. B. and G. H. to be one to execute the same. As by the said Commission, rela­tion being thereunto had, it may more at large appear. And whereas the said Commissioners, or the major part of them, having begun to put the said Com­mission in execution, upon due examina­tion of Witnesses, and other good proof upon Oath before them, or the major part of them, according to the Form and Prescipt of the said Commission, and the said Statutes taken, and other­wise, the said Commissioners, Parties to these Presents, have found, and do find that the said P. R. did for the space of [Page 234] seven years and upwards together, last past, before the suing forth the said Commission, use and exercise the Trade of— &c. at his or ( her) Shop in W. afore­said, in the said County of, &c. and in particular in that his Trade did buy and sell Iron Wares, and several other sorts of Wares and Merchandizes, and other Commodities relating to that Trade whereby he did seek his Trade of Living (that is to say) by Buying and Selling; and that he the said P. R. in the time of such his Trading, and by reason thereof did become indebted unto the said J. S. and other his Creditors, in the sum of One Hundred Pounds and upwards, and for which the said J. S. on the behalf of himself and other Creditors of the said P. R. hath prayed the aid and relief of the said Commission and Statutes before the said Commissioners, Parties to this Indenture, the said sum of One Hundred Pounds and upwards, being yet un­paid, and owing to the said J. S. &c. And the said Commissioners have also found, and do find, that the said P. R. being so indebted, as aforesaid, did next before the date and suing forth the said Commission (in the judgment of the said Commissioners, Parties to these Pre­sents) become a Bankrupt to all intents and purposes, within the Compass, true Intent and meaning of the several Sta­tutes made concerning Bankrupts, or [Page 235] some, or one of them. And whereas the said Commissioners, Parties to these Presents, in further execution of the said Commission, upon like due exami­nation of Witnesses, and other good proof upon Oath before them, or the ma­jor part of the Commissioners before na­med, have found, and do find, or it otherwise appeareth to them, that since such time that the said P. R. became a Bankrupt, as aforesaid, he the said P. R. was lawfully possest of and interested in a certain Leafe, and Goods, Wares, &c. in the Schedule, &c. Now this Indenture Witnesseth, that the said Commissioners, Parties to these Presents, being the ma­jor part of the Commissioners, in the said Commission named, in furher execu­tion of the said Commission, and of the Statutes therein mentioned, and by Force and Vertue of the same, and of the Authority to them, or the major part of them given thereby; in conside­ration, &c. Have as much as in them lieth, Bargained, Sold, Assigned, Trans­ferred and Set over: And by these Pre­sents (as much as in them lieth) do Bargain, Sell, Assign, Transfer and Set over unto the said J. S. his Executors, Administrators and Assigns, all and sin­gular the said afore-mentioned term of Years, &c. To have and to hold, ask, demand, sue for, recover and receive all, and singular the said Lease and [Page 236] Term of Years, Goods, Wares, &c. Here should be two Habendums, one of the Term and the other of Goods, &c. mentioned and expressed in a Schedule hereof hereunto annexed, and all, and every other Debt and Debts, Sum and Sums of Mony whatsoever, by these Pre­sents Ordered, Assigned and Set over, or in any wise due, or owing, or be­longing to the said P. R. or his Estate, by or from all, or any the persons na­med as Debtors in the same Schedule, or otherwise unto him the said J. S. his Executors, Administrators and Assigns, Upon Trust nevertheless, and to and for the intents and purposes following (that is to say) to, and for the use, behoof, benefit and advantage of them the said J. S. &c. and all such other Creditors of the said P. R. as have already sought, or shall hereafter in due time come in and seek reliefe by vertue of the said Commission, and contribute towards the Charge thereof, according to the directi­on and limitations of the said Statutes, as to so much of the said Estate, both Real and Personal of the said P. R. and other the Premisses, Ordered, Directed, Bargained, Sold, Assigned and Set over to the said J. S. as aforesaid; and of the Monies which shall, or may be had or raised by, or for the same, as the Debts of the said Creditors do, and shall a­mount unto; And as to the residue and surplusage of the said Estate, if any such shall be, the same shall be in trust [Page 237] for the said P. R. his Executors and As­signs, according to the said Statutes, and the true intent and meaning thereof, and to, and for none other use, intent or purpose whatsoever. And to, and with the said Commissioners, Parties to these Indentures, their Executors, Ad­ministrators and Assigns, the said P. R. for himself, his Executors and Admini­strators, doth Covenant, Promise and Covenant to get in the Debts. Grant in Manner and Form following (that is to say) that he shall, and will from time to time, and at all times here­after, with all convenient speed use his best means and endeavour by Suit in Law or otherwise to sue for, recover, receive and get into his and their possession, all, and singular the aforesaid Goods, Wares, Merchandizes, Houshold-stuff, Debts and Sums of Mony, by these Presents Assign­ed and Set over, as aforesaid, and after Possession had and obtained of the said Goods, Wares, Merchandizes, Houshold­stuff, Debt, Sum and Sums of Mony, and other things, or any part thereof, shall, and will with like convenient speed make Sale and Disposition thereof to, and for the most and best value and advantage he and they may or can bonafide. And further, that he, his Execu­tors and Administrators shall, and will from time to time, and at all times here­after upon any reasonable request and notice, account to, and with the To Account. [Page 238] said Commissioners, Parties to these Pre­sents, or any of them, their, or any of their Executors or Administrators, what, and how much Mony, or other satisfa­ction they shall then have received, raised or recovered by Force, Vertue or means of this present Deed or other­wise, out of the Estate of the said P. R. and such Mony or other satisfaction as upon such Account or Accounts shall ap­pear to be so had, raised, obained or re­ceived, shall, and will upon like reason­able request and notice, well and truly pay, or cause the same to be paid unto them the Commissioners, Parties to these Presents, or some, or one of them, to the end the same may be by them Orde­red, Disposed, Distributed, Divided and Set over unto them, the afore-named Creditors, and such others of the Cre­ditors of the said P. R. as have alreay fought relief, or shall hereafter in due time come in, and seek relief by the said Commission, and contribute towards the Charge thereof, according to the Li­mitations and Directions of the said Sta­tutes, as aforesaid. And to, and with the said Commissioners, Parties to this Indenture, and the said J. S. his Execu­tors and Administrators, and every one of them, the said R. B. &c. (the Credi­tors) do hereby Covenant and grant for Covenant from the Creditors. themselves, their Heirs, Executors and Administrators, that they, and every of [Page 239] them from time to time, for ever here­after, according to, and after the share and proportion of his or their particular Debt or Debts to him or them now due and owing from the said P. R. with, and in respect to the several Debts of all such Creditors as hereafter in due time shall come in and seek relief by the said Commission, shall, and will pay, bear, perform and do his and their share and proportion of all Charges and Expences, Trouble and Travel which already hath been, or hereafter shall be meet, requisite or convenient, or shall happen in or for the suing forth, prosecuting or executing of the said Commission, or in, or for the maintaining, justifying or defending the same, or all, or any proceedings which already have been, or hereafter shall be thereupon, or for the securing and keep­ing Harmless or Indempnified the said Commissioners, Parties to these Presents, and the said J. S. and every, or any of them, or any of their Executors or Ad­ministrators of, and from all Actions, Suits, Arrests, Trouble, Damages, Char­ges, Travel and Expences whatsoever which may arise, happen or be occasio­ned to every or any of them, by reason of the said Commission, or the suing out, prosecuting or executing thereof, or of any matter or thing already done, or which hereafter shall be done in prose­cution of the said Commission, or by [Page 240] reason of this present Indenture, or the Trust, or any other matter or thing therein comprised, specified or mentio­ned, or any thing which is, or shall be done in pursuance thereof. In Wit­ness, &c.

Memorandum. It were better to have in this two Habendum's, one of the Term, and another of the Goods.

A Deed of Distribution from Commissioners of Bankrupts to the Creditors.

THIS Indenture made, &c. Be­tween J. C. P. B. Esquires and W. F. Gent. of the one part, G. H. J. K. &c. of the other part. Whereas the Kings Majesties Commission under the Great The Commissi­on. Seal of England, grounded upon the se­veral Statutes made concerning Bank­rupts, bearing Date at Westminster, &c. hath been awarded against the said R. G. directed unto R. A. P. C. Esquires, the said J. C. P. B. and W. F. Gent. as by the said Commission, whereunto Relati­on being had, more fully and at large it may and doth appear. And Whereas at the Humble Petition of the said H. N. exhibited to the Right Honourable, George Lord Jeoffreys, Baron of Wemm, Lord High Chancellor of England, the said Commission was renewed, and the [Page 241] said A. B. and C. D. therein named, in­stead of them the said R. A. &c. toge­ther with them the said J. C. P. B. &c. thereby giving full Power and Authority unto them the said A. B. and C. D. &c. four or three of them, whereof the said A. B. or C. D. to be one to execute the same Commission, as in and by the same renewed Commission under the Great Seal of England, bearing Date at Westminster, &c. whereunto relation being had, more fully at large it may and doth appear. And Whereas the said Commissioners, Parties to these Presents, having begun to put the said Commissions in Execution upon due examination of Witnesses and other good proof upon Oath before them taken, have found that the said R. G. for the space of, &c. past before the Date and Suing forth of the said Com­missions, used and exercised the Trade or Profession of, &c. and did receive and take to Pawn upon Credit, Rings, Plate, Jewels, Houshold-Goods, Wear­ing Apparel, and other Goods, and did Buy, Sell and Utter several, great quan­tities of the like Goods, and other Wares and Merchandizes, and had and kept an House, Shop and Warehouse for that in­tent and purpose in, &c. in the Parish of, &c. and did seek and endeavour to get his Living by Buying and Selling as other Broakers and Traders use to do. And that he the said R. G. so seeking [Page 242] and endeavouring to get his Living by Buying and Selling, Trading and Deal­ing, as aforesaid is mentioned, did du­ring that time of his said Trading and Dealing become justly and truly indebt­ed, and still doth owe and stands justly and truly indebted unto the above-na­med A. B. C. D. M. L. and J. B. in the sum of Fifteen Hundred Pounds of Law­ful Mony of England, and unto divers other persons his Creditors above also na­med, divers and sundry other Sum and Sums of Mony, amounting in the whole to the Sum of, &c. of like Lawful Mo­ny, and being so indebted, he the said R. G. did in the judgments of the said Commissioners, Parties to these Presents, become Bankrupt to all intents and pur­poses, within the Compass, True intent and Meaning of the several Statutes made concerning Bankrupts, or within some or one of them, before the date and suing forth of the said first recited Com­mission. And Whereas the said Com­missioners, Parties to these Presents, in further execution upon like due ex­amination of Witnesses, and other good proof upon Oath before them taken, ha­ving also found that at such time as he the said R. G. became Bankrupt, as afore­said, there were divers Good Wares and Merchandizes, as well of and belong­ing to him the said R. G. as what were Pawned unto him as Securities for Mo­nies [Page 243] by him lent, and also several Sum and Sums of Ready Monies and other Commodities of and belonging to the said R. G. and his Estate in his said late Dwelling-House, situate and being in, &c. Did by their Deed or Indenture of Assignment, under their Hands and Seals, and duly executed, bearing Date, &c. for and upon Considerations, and to and for the Uses, Intents and purposes therein mentioned, Assign and Set Over unto the said T. P. H. N. M. L. and J. B. their Executors, Administrators and As­signs, All and Singular the said Goods, Wares, Merchandizes, Ready Monies and other Commodities, the particulars whereof are mentioned, set down and expressed in the Schedule or Inventory thereof to the said Deed or Indenture of As­signment annexed, as by the same Inden­ture of Assignment relation being thereun­to had, may more at large appear. And Whereas the said Commissioners, Par­ties to these Presents, in further executi­on▪ of the said Commission, upon suffici­ent proof upon Oath of several Witnesses, have also found, that he the said R. G. at the time he became Bankrupt, as a­foresaid, stood justly and truly indebted, and still doth owe and standeth justly and truly indebted unto the said T. P. in the Sum of, &c. Principal Mony, also to the several persons his Creditors above-named, in several Sums of Mony, [Page 244] amounting in the whole to the Sum of, &c. of Lawful Mony of England, the particulars whereof, together with the several and respective persons, that as well have sufficiently proved, as such of them that have not well proved their several and respective Debts (who are not hereby to have or receive any benefit or advantage by this present Deed of Dividend, until such time as they shall so have respectively suffici­ently proved their Debts and Demands) are mentioned, set down and expressed in the Schedule, indented to these Pre­sents annexed. And Whereas the full space of four Months since the Date and Suing forth of the said Commissions is fully elapsed and expired, and no other Creditors of the said R. G. other than the persons above-named have as yet come in, and sought Relief by the said Commissions, or paid, or contributed towards the Charges thereof, according to the direction of the said Statutes for Debt or Debts due, or claimed to be due and owing by and from the said R. G. And Whereas the said Assignees T. P. H. N. M. L. and J. B. have actu­ally raised and received by vertue of the said Assignment out of the Goods and other things thereby assigned, the Sum of, &c. of Lawful Mony of England, the particulars whereof, and how the same hath been received, are mentioned, [Page 245] set down and expressed in the said Sche­dule▪ indented to these Presents, like­wise▪ annexed. And Whereas the said Creditors above-named parties hereunto, have made already, and by these Pre­sents do make it their Request unto us the said Commissioners, Parties to these Presents, to Order, Distribute, Divide and Set Over unto, and amongst the said Creditors, Parties to the Presents, (or at least such of them as either have, or shall in due time make good and suffi­cient proof of their several respective Debt and Debts) the said Sum of, &c. for and towards payment and satisfacti­on of their respective Debts, in the said Schedule hereunto annexed, mentioned and expressed, ratably and proportiona­bly, according to their several and re­spective Debt and Debts, at and after the rate of Three Shillings and Eight Pence in the Pound of their respective Debts. Now this Indenture witnesseth, That the said Commissioners, Parties to these Presents, in further execution of the said Commissions and Statutes therein menti­oned, and by Force and Vertue thereof, and for and in consideration that a Due and Legal Distribution may be effected Distribution. and made as to the said Sum of, &c. be­fore-mentioned, Have Ordered, Distri­buted, Disposed, Divided and Set Over, and by these Presents, do as much as in them, the said Commissioners, Parties to [Page 246] these Presents, lieth, and they lawfully may Order, Distribute, Dispose, Divide and Set Over, unto and amongst them the said Creditors above-named, one of the Parties to these Presents, the said Sum of, &c. in Manner and Form fol­lowing (that is to say) to each, and eve­ry one of them the said Creditors, as have well and sufficiently made proof of their several and respective Debt and Debts, or shall in due time make such proof, a part and proportion of the same share and share-like, according to the quantity and proportion of their said Debts, in the said Schedule indented hereunto annexed, mentioned and ex­pressed, at, and after the rate of 3 s. and 8 d. in the Pound of their said respe­ctive Debts; To have and to hold, and enjoy the said Sum of, &c. and every part and parcel thereof unto them the said Creditors, Parties to these Presents, their Executors, Administrators and As­signs, as their, and every of their own proper Monies and Estate, towards pay­ment and satisfaction of their said seve­ral and respective Debts, so farforth as the same will amount unto the same, to be ratably and proportionably distribu­ted and divided, as herein before is men­tioned. And the said T. P. H. N. M. L. and J. B. and the rest of the Creditors above-named, one of the Parties to these Presents, for themselves severally, and [Page 247] for their several and respective Executors and Administrators, and not jointly one for the other, do Covenant, Promise and Grant to, and with the said Com­missioners, Parties to these Presents, their respective Executors and Administrators, and to, and with every of them by those Presents, That they the said T. P. H. N. M. L. and J. B. and the rest of the Cre­ditors above-named, one of the Parties to these Presents, their respective Execu­tors and Administrators, shall and will so farforth as concerneth his or their par­ticular Debt and Interest herein, well and sufficiently save harmless and keep in­dempnified all the said Commissioners, by the said Commission Authorised, and every of them, their and every of their Bodies, Lands, Tenements, Goods and Chattels, and every part thereof, of, from touching and concerning, All, and all manner of Actions, Suits, Arrests, Costs, Damages and Expences whatsoever, which they, or any of them may suffer, sustain, or be put unto for, or by reason of this present Deed of Distribution, or any other Act, matter or thing whatsoe­ver lawfully done or executed by vertue of the said Commissions, or their, or any of their lawful intermedlings in any of the Estate of the said R. G. by Force, Vertue or Colour thereof. In Witness whereof the Parties to these Presents, first above-named, have interchangeably, &c.

Bill by a Principal Creditor to call the As­signees to Account, and discover what of the Bankrupts Estate came to their hands.

IN humble manner complaining, shew­eth unto your Lordships your Ora­tor C. J. of London, Merchant. Where­as in the year 1658. and some few years afterwards your Orator had dealings with one J. Robinson of, &c. in the way of Merchandise, whereby he became Debtor unto your Orator, for Goods and Merchandizes sold and delivered to him the said J. R. and for several sums of Mony which he the said J. R. had of your Orator, and were paid for him by your Orator upon Bills of Exchange and otherwise, in the sum of Four and Twenty Hundred Pounds Sterling; and he the said J. R. being so indebted to your Orator in such a great sum of Mo­ny; and sometime in the year 1661▪ he the said J. R. failing in his Estate, and becoming Bankrupt, your Orator for the recovery and gaining his said Debt out of the Estate of the said J. R. he himself being gone beyond the Seas, your Ora­tor did sue forth his Majesties Commissi­on, grounded upon the several Statutes made concerning Bankrupts, against him the said J. R. and accordingly the same [Page 249] was granted and issued forth against him at the sole Instance and Petition of your Orator on the 24th of May, in the 13th year of, &c. Anno Dom. 1661. directed to J. P. R. A. Esquires, J. L. H. N. and R. H. Gent. the major part of which said Commissioners did put the said Commis­sion in Execution, and sate several times in the said year 1661. And after for the discovering and finding out of the Estate of the said J. R. And having so done, did agree by, and with the con­sent of the other Creditors of him the said J. R. that came into the said Commis­sion, that your Orator, and one E. M. of, &c. another of the said R.'s Credi­tors that was come into the said Com­mission, should be Assignees of the Estate of the said J. R. and should be impower­ed by them the said Commissioners by Deed of Assignment under their Hands and Seals, to gather in and receive the same Estate in trust, and for the use of themselves and all other the Creditors of the said J. R. that should duly seek re­lief by the said Commission, and towards satisfaction of their several Debts; but not­withstanding such Agreement and Consent of the Commissioners and Creditors, the said Commissioners sometime afterwards, at the instigation of the said E. M. and of P. S. another of the Creditors who was come into the said Commission, and had before consented to your Orators being [Page 250] one of the Assignees, as is afore-menti­oned, did make their Deed or Deeds of Assignment of the said J. R.'s whole E­state, of a very considerable value in Goods, Debts and Monies, amounting to 3000 l. and upwards, to them the said P. S. and E. M. to both whom the said R. was indebted 100 l. or thereabouts, your Orator being a Creditor for 2400 l. as afore is mentioned; part of which said Estate was inserted in a Schedule, annex­ed to one part of the said Assignments; a Copy whereof is also hereunto affixed. And your Orator further sheweth to your Lordship, that the said P. S. and E. M. being so constituted and made Assignees of the Estate of the said J. R. by the ma­jor part of the said Commissioners, by one or more Deed or Deeds of Assign­ment under their Hands and Seals, and impowred to recover, gather in and re­ceive the same Estate in trust for the use of your Orator, and other the general Creditors of the said J. R. that should duly seek relief by the said Commission; they the said P. S. and E. W. did enter into a Covenant under their Hands and Seals, to, and with the said Commissio­ners to give and render unto them upon reasonable request, an account of whatso­ever Monies they, or either of them should receive and gain in of the said J. S. and relating to his Estate, and pay and satisfie the said Monies to them the [Page 251] said Commissioners, to the end the same might be by them divided equally a­mongst all the Creditors of the said J. R. that should come into the said Commis­sion, proportionable to their several Debts. And your Orator further shew­eth, that they the said P. S. and E. M. being so intrusted, as aforesaid, did re­cover and gain in several great sums of Mony which belonged to the Estate of the said J. R. and did keep the same in their own hands for several years, a­mounting to 2000 l. or more, for which hitherto they, or either of them have not given any account, the said Com­missioners themselves, who might have called them to such account, according to their Covenants, being deceased. Whereby they the said Assignees have for several years kept all the said Monies, and intend still so to do, and to pay no pro­portion of the same to your Orator for his said great Debt of 2400 l. or to the o­ther Creditors, to your Orators know­ledge, without they be compelled there­unto by order of this Honourable Court, contrary to all Equity and Good Consci­ence. And for that your Orator is no ways relievable herein, but in Equity be­fore your Lordship, or to have any dis­covery of the said matters, save in this Honourable Court. And for that also your Orators Witnesses are either dead or in places remote and unknown: To [Page 252] the end therefore, that your Orator may receive his due and equal proportion of all Monies come to the hands of the said P. S. and E. M. relating to the said J. R.'s Estate, for, and in respect of his said Debt of 2400 l. and proportionable thereunto▪ And to that purpose, that the said P. S. and E. M. may bring in a true and particular account upon their Oaths, of all the Estate that hath been heretofore assigned to them by the said Commissioners, the same being in trust, as afore-mentioned, and declare whether they have had one or more Assignments made to them of the same, together with the Dates thereof, and the Cove­nants therein contained, and whether they sealed the Counterpart of such As­signment, and may set forth a true par­ticular of how much of the said Estate hath been received by them, or either of them, or under them, and of, and from whom, and when, and may de­clare upon their Oaths, what other Cre­ditors of the said J. R. did in due time come into the said Commission, and did pay their Contribution-Mony as your Orator hath done; and to the end that the Monies found to be received by them the said P. S. and E. M. or either of them, may be by Order or Decree of this Ho­nourable Court so divided, that your Orator may have his proportion there­of, and your Orator have relief in the [Page 253] premisses, according to Equity and Good Conscience (the same to go to, and to be applied towards the satisfacti­on of a certain Debt due from your Ora­tor to W. R. Esq; according to a Proviso in a certain Act of Parliament made in the 30th year of his now Majesties Reign, intitled An Act for the further re­lief and discharge of poor distressed Priso­ners for Debt) And that the said S. and M. may true answer make to all, and every the matters aforesaid, May it please your Lordship, &c.

• As for the Schedule sixt to the Bill, Intitle it thus.
• The Schedule or Inventory, whereof mention is made in the Deed, whereunto the same is annexed, and whereunto the Bill annexed doth re­late, as followeth, ( viz.)
• Monies come to the Hands and Pos­session of several persons of the said J. R.'s and belonging to his Estate.
• Imprimis, In ready Mony which came to the Hands and Possession of—100 l.
• Item, &c.
• Debts owing to the said J. R. and his Estate.
• Imprimis, Owing by James West.— In toto, &c.

Bond from the Assignees to the Principal Creditor in 2000 l. to pay his proporti­onable share.

THE Condition of this Obligation is such, Whereas a Commission un­der the Great Seal of England, ground­ed upon the several Statutes made con­cerning Bankrupts, hath been awarded against J. R. late of the City of London, Mercer, directed to certain Commissio­ners therein named, to execute the same: And whereas the major part of the Com­missioners, by the said Commission au­thorized, in Execution of their said Com­mission, have by their Deed Indented of Distribution, bearing Date with these Presents, distributed and divided divers Debts and sums of Mony, mentioned and expressed in a Schedule to the said Deed annexed unto, and amongst the above bounden P. S. and E. M. and other the Creditors of the said J. R. duly seeking relief by the said Commission, accord­ing to the limitation of the several Sta­tutes, whereupon the same was grounded (to wit) according to the quantity and proportion of their several and respective Debts, in the said Deed also expressed; wherein the Debt owing to the above­named C. J. is mentioned, to be the sum of 1144 l. 8 s. 5 d. And whereas the said [Page 255] C. J. hath formerly given consent, that the major part of the Commissioners should by their Deed of Assignment As­sign and Set Over unto the said P. S. and E. M. amongst other things, All, and singular the said Debts and sums of Mo­ny mentioned in the said Schedule, which the said Commissioners have done ac­cordingly; if therefore the said P. S. and E. M. shall from henceforth, and at all times hereafter, upon reasonable demand, and sufficient Acquittance and Acquit­tances, given in writing to them, or any of them respectively in that behalf well and truly pay, or cause to be paid unto the said C. J. his Executors or Admini­strators, or to his or their Assignee or Assignces, lawfully authorised by writing under his and their Hands and Seals, witnessed before two or more persons of Credit, to receive the same (that is to say) of all such Quanties and Proporti­ons of Monies of the said sum of 1144 l. 8 s. 5 d. mentioned in the said Deed to be owing to the said C. J. as they the said P. S. and E. M. or either of them, their, or either of their Executors, Administra­tors or Assigns should receive of any per­son or persons, by means or vertue of the said Indenture of Assignment, according to the Quantity and Proportion of the said sum of 1144 l. 8 s. 5 d. in reference to the Debts of other Creditors in such Deed mentioned, or according to the [Page 256] Quantity or Proportion of so much there­of, as shall stand, and be duly proved before the major part of the Commissio­ners, by the said Commission authorised, and by them signified under their Hands, so to be proved according to a Proviso in the said Deed of Dividend mentioned, and that also in proportion with the sums of Mony mentioned in the said Schedule to be owing unto other the Creditors of the said J. R. then this present Obligation to be void, or else to remain in full Force and Vertue.

Plea and Demurrer to a Bill brought by the Complainants as Creditors and Assignees under a Statute of Bankrupt, to avoid Leases, and redemise for security of Mony made to the Defendant by the Bank­rupt, on pretence the Commissioners had As­signed the Creditors to pay the Mony to the Defendant, and he to Assign his Estate; Whereas the Commissioners had no power to do the same, and the Estate in Law made to the Defendant was two Years and six Months before the pretended Bank­rupcy; and for Plea, the Defendant of­fers the Indentures, and a Fine levyed to him, long before the Bankrupcy.

THE said Defendant, for Demurrer to the said Bill, saith, that if all the said Bill were true, as it is not; yet the said Complainants of their own shewing, as they themselves have made their Case, ought not to be relieved thereupon ei­ther in Law or Equity: For this Defen­dant saith, that if it were true, that J. E. in the Bill named, and F. his Wife in the Month of, &c. in the 22th year of the Reign, &c. were lawfully seised of a good, perfect and indefeasible E­state to them, and to the Heirs of the said J. E. of the Mesuage or Tenements in the Bill mentioned; and that the said [Page 258] J. and F. being so seised by agreement had and made by and between them the said J. E. and F. his Wife and this Defendant, did by their Indenture of Lease under their Hands and Seals, bear­ing date the twelfth day of J. which was in the said 22th. year, &c. Demise, Grant, and to Farm, let unto this Defen­dant the said Mesuages or Tenements for the Term of 21 Years and 28 Days, from the Feast, &c. rendring a Penny Rent yearly at the Feast of, &c. if the same were lawfully demanded: And that this Lease was made in Consideration of 240 l. paid, or lent by this Defendant to the said J. E. and F. his Wife. And if it be likewise true, that this Defendant in, and upon the 14th. Day of the said Month of, &c. in the said 22th Year, &c. did Redemise the said Mesuages on Te­nements to the said J. E. and F. his said Wife, for the Term of 21 Years from the six and twentieth day of J. in the said 22th. Year, &c. yielding and paying therefore yearly, during the said Term, unto this Defendant the sum of 30 l. at the Feast of, &c. and the first payment thereof to begin at the, &c. Anno Dom. 1625. &c. with a Proviso, That if the said Rent of 30 l. should be behind and unpaid in part, or in all, over or after any of the days of payment limited for the payment thereof, that then, and from thenceforth it should, and might be law­ful [Page 259] to and for this Defendant into the said Mesuages or Tenements to re-enter. And if it be likewise true, That the said J. E. did become bound unto this Defendant in a Bond of 300 l. conditioned for the performance of the Covenants and A­greements contained in these Indentures: And that afterwards the said F. died, and the said J. E. her Husband survived, and did truly pay to this Defendant the sum of 30 l. upon the Feast day of the Nativity of St. John Baptist, which was in the said Year of our Lord God 1625. for a Years Rent then due upon the said last menti­oned Lease. And if it be likewise true, That the said J. E. upon the Feast of the Nativity of St. John Baptist 1626. did fail to pay the said sum of 30 l. then due for the said Rent, and did after condes­cend to make, and did make unto this Defendant one other Lease of the said Messuages or Tenements, by Indenture, bearing Date the 28th. day of December, 1626. and in the second Year of the Reign of our Sovereign Lord the King's most Excellent Majesty that now is, for the Term of 21 Years, to begin from the expiration of the said first recited Lease, for the Yearly Rent of one Pepper-Corn, upon Condition, That if the said J. E. his Executors, Administrators or Assigns, or any of them did, or should from time to time, and at all times then after, du­ring the residue of the said Term of 21 [Page 260] Years then to come and expired, well and truly pay, or cause to be paid unto this Defendant, his Executors, Admini­stratos or Assigns the said Rent of 30 l. at such days, times and place, and in such Manner and Form as in the said recited Indenture of Lease is limited and ap­pointed, then the said last mention'd Lease should Cease, Determine and be utterly Void. And if it be likewise true, That the said J. E. did afterwards pay unto this Defendant the 30 l. which was then formerly due to have been paid at the Feast of St. John Baptist, which was in the said Year of our Lord God, 1626. and did after pay unto this Defendant the Rent of 30 l. due at the Feast of St. John Baptist, Anno Dom. 1627. And did pay unto this Defendant the like Rent of 30 l. at the Feast of St. John Baptist, Anno. Dom. 1628. And if it be likewise true, That afterwardas the said Rent of 30 l. due at the Feast of St. John Baptist, 1629. was behind and unpaid, and that this Defendant for non-payment thereof did enter upon the said Demised Pre­misses, and hath received, or might have received of the Under-Tenants thereof all the Rents or Profits thereof, as well those that were behind at the Feast of St. John Baptist, 1629. as such as have grown due ever since, the value of the same Tenements being 30 l. per Annum. And if it be likewise true, That the said [Page 261] J. E. were a Man that did seek or get his Living by Buying and Selling, and that the said J. E. were indebted to the Complainants and others in the sum of 500 l. and did in December, Anno Dom. 1626. begin to keep his House in St. Al­bans, to the intent to delay his Creditors from the Recovery of their just and true Debts, and hath since absented himself, and thereby is become a Bankrupt. And if it be likewise true, That the said Complainants, and others of the Credi­tors of the said J. E. did the 28th day of J. last, being the 28th day of J. Anno Dom. 1631. become Suiters to the Right Honourable the Lord Keeper, &c. for a Commission upon the Statutes of Bankrupts, to be awarded against the said J. E. and that thereupon a Commission was awarded the 29th Day of J. now last past, directed to the Commissioners in the Bill named, or to any four or three of them. And if it be true, That the said Commissioners have begun to put the said Commission in Execution, and have found that the said J. E. being indebted to the said Complainant and others, did in the Month of December, Anno Dom. 1626. begin to keep his House, and absent himself from his Cre­ditors, and that the said J. E. did there­by become a Bankrupt, as by the said Bill is set forth. This Defendant for De­murrer to the said Bill sath, that if all [Page 262] the said Surmises and Allegations were true, yet the said Complainants, of their own shewing, ought not thereupon to be relieved either in Law or Equity; for this Defendant saith, that the said Com­missioners, by vertue of the said Commis­sion, had not any thing to do with any of this Defendants said Leases, neither were the same Leases any way subject to the said Commission, for that it appeareth of the Complainants own shewing, that the said Leases were made for good consi­deration of Mony, paid long before the said J. E. did become a Bankrupt (that is to say) the said first Lease made by the said J. E. unto this said Defendant, and the Redemise thereupon made by this Defendant to the said J. E. were both made in consideration of 240 l. paid by this Defendant to the said J. E. to secure unto him this Defendant, the sum of 30 l. per Annum out of the Mesuages or Tenements thereby Demised for 21 years. And the said later Leases, as it appears of the Complainants own shew­ing, was made after a forfeiture of the Redemise made by this Defendant to the said J. E. and after a forfeiture of a Bond of 300 l. and the same was only made to secure the subsequent payments of the said Rent of 30 l. per Annum. And this Defendant saith, that the said first Lease, and the said Redemise, being so as aforesaid, made in June, Anno Dom. [Page 263] 1624. and in the 22th Year, &c. this De­fendant then could not prognosticate that the said J. E. would become a Bank­rupt in December 1626. which was two Years and six Months after the making of the said Lease and Redemise; for which cause, and because it appeareth of the Complainants own shewing, that the said Lease and Redemise were made for the consideration of 240 l. and to secure to this Defendant 30 l. per Annum for 21 Years, and were made two Years and six Months before the said J. E. did become a Bankrupt: And because the Complainants by their Bill do set forth a good Title both in Law and Equity to this Defendant, of, and in the Mesuages, Lands and Tenements in question, but do not shew nor derive to themselves any Title at all thereunto, either in Law or Equity, neither by Grant nor Assign­ment from the Commissioners, nor o­therwise; therefore this Defendant doth Demur, and abide in Law upon the in­sufficiency of the said Bill, and doth humbly demand Judgment of this Ho­nourable Court, if he, this Defendant, shall be compelled to make any answer thereunto. And for further Cause of Demurrer to the said Insufficient Bill, this Defendant saith, That the Title set forth by the Complainant by their said Bill to the Leases in question, or to the Lands, Tenements or Hereditaments [Page 264] thereby Demised, is no good Title in Law or Equity. For if it be true, That the Commissioners, upon these Statutes of Bankrupts, did Assign and Appoint the Complainants to pay and tender un­to this Defendant the sum of 240 l. with Interest, and in such manner as by the said Bill is suggested; and Assign and Appoint them to take from this Defen­dant an Assignment or Conveyance of the Leases made to this Defendant of the Lands in the Bill mentioned, to the be­nefit and behoof of the Complainants, and of the other Creditors of the said J. E. yet the said Commissioners had no power by any the Statute or Statutes of Bankrupts, or by their Commission, ei­ther to Assign or Appoint the Complai­nants to pay or tender unto this Defen­dant any sum or sums of Mony, or to Assign or Appoint this Defendant to As­sign or Convey the said Leases or Lands, Tenements or Hereditaments thereby Demised. For which Cause also, and because there is no matter of Equity contained in the said Bill, but the said Commissioners do thereby indeavour to a [...]oid a plain, honest and lawful contract made for just and valuable consideration two Years and six Months before the said J. E. became a Bankrupt, this De­fendant doth Demur in Law upon the insufficiency of the said Bill, and doth humbly demand the Judgment of this [Page 265] Honourable Court, if he, this Defendant, shall be compelled to make any answer thereunto. And for Plea in Bar to this said Bill, this Defendant saith, That the said J. E. and F. his said Wife in the Term of the Holy Trinity, which was in the 22th Year, &c. by one Fine ac­knowledged, and Levied before his then Majesties Justices of his Court of Com­mon Pleas at Westminster, did grant unto this Defendant all, and singular the Me­suages, &c. in the said Indenture of the 12th and 14th days of June, in the said 22th Year, &c. mentioned by the names of three Mesuages, &c. with the Appur­tenances in the Town of St. Albans, and in the Parish of St. Michaels: To have, and to hold to this Defendant, from the Feast of St. John Baptist then next follow­ing, for the Term of 21 Years and 28 Days then next following, and fully to be compleat and ended, as by the said Fine remaining upon Record in his Ma­jesties said Court of Common Pleas ap­peareth. And therefore this Defendant demandeth the Judgment of this Honou­rable Court, if against the Indenture of the said J. E. under his Hand and Seal, made for the consideration of 240 l. con­fessed by the Complainants to be paid, and the same Indenture acknowledged by the said Complainants to be made two Years and six Months before the said J. E. did become a Bankrupt; and if [Page 266] against the said Fine, the said Complai­nants, as Creditors to the said J. E. upon a bare surmise, that the Commissioners upon the Statute of Bankrupts, have ap­pointed them the said Complainants to pay 240 l. and this Defendant to Assign or Convey his Interest to the said Com­plainants; the said Complainants shall be received to Complain in this Honourable Court. All which Matters this Defen­dant is ready to maintain as this Honou­rable Court shall award, and humbly prays to be dismissed forth of the same, with his reasonable Costs and Charges in this behalf most wrongfully sustained.

Mr. Ben. Hintons Case in Chancery.

Hillary 1687.

John Butcher Plaintiff, exhibited his Bill against Ben. Hinton, John Hill, Obadi­ab Sedgwick and George Sittwell, As­signees of the Commissioners of Bank­rupcy awarded against Hinton of Lon­don Goldsmith, George Parker, Parson Parks, Rosomond Wattson and Elizabeth and William Short, Defendants.

THAT Butcher and Short were The Bill. Partners in 1669. in the Norway Trade for Timber used in Rebuilding London for seven years, two years of which Butcher was in Norway. And having occasion for Mony to pay Bills before the Goods could be disposed of, Short employed Hinton as Banker, who paid and received several sums on the joint Account▪ and not suspecting any unjust dealing two years after accepted the Account Hinton gave, without examin­ing the Items.

That Butcher and Short being forc'd to trust great quantites of Goods, su­stained great Losses; Hinton finding them in sudden Exigences to pay Bills, took advantage and prepared Accounts of [Page 268] Mony paid and received, in which Hin­ton made them Debtors 4000 l. and pre­tended there was no Error or Over­charges, desired Bonds for the said bal­lance, declared it should be no prejudice, and if any Errors, it should be rectified, and the Security should be for no more than should appear to be due: They sign­ed the Account and gave Bonds.

That after Hinton received and paid divers sums on Account on the Partner­ship, and perceiving they were forc'd to give great Credit, and being in great Exigences to pay Bills of Exchange and other occasions in Trade, took advan­tage and drew up another Account, and Bonds, and required them to execute the same, which they were forced to do, else he threatned to ruin them by bringing Actions on the Penalties; and being Conscious he had wronged them, con­trived to avoid a re-examination, Dec. 4. 1675. pretending there was above 6000 l. due, and that he was pressed by his Creditors, and could not pacifie them unless he and his other Creditors would become bound; but Butcher al­ledging there was not so much due, and the Partnership being ended, and their Debts divided, was unwilling to enter into new Bonds for more than his own part, and be discharged of Shorts part, and have the Bonds and Securities deli­vered up, and the new Bonds to be sub­ject [Page 269] to the same examination the old ones were, and to make good no more than a moiety, which Hinton agreed to; and agreed that he and Short should be bound for 2000 l. And Hinton promised to deliver up the old Bonds, and Butcher should be discharged of all former Bonds, and Hinton executed two Receits on the 4th of Decemb. 1675. one of 4000 l. and the other of 2500 l. being the sum de­manded to be due on the old Bonds, and they sealed new Bonds for 6300 l. with Hinton to his Creditors.

That Hinton took Counterbonds of Butcher and Short to save him harmless, and they having paid above 3000 l. and Hinton delaying to deliver up the old Bonds, or to come to a fair Account, Butcher brought a Bill to compel him thereto, but Hinton threatned to ruin him unless he would execute a General Release, and give new Bonds, which he was compelled to do on Hinton's promise, that he would come to a fair Account, and no use should be made thereof, but to secure what was justly due: And thereupon he executed such Release and new Bonds.

That Hinton failing, a Commission of Bankrupcy was awarded against him, and he declared a Bankrupt: And all the Bonds were assigned to Sedgwick, Sitt­well and Hill, to whom Butcher applied himself to have the old Bonds, Release [Page 270] and Security delivered up and cancelled, and that the Accounts might be exami­ned, being willing to pay what should appear to be due (if any thing due on his Account,) which the Assignees refu­sed to do, and threatned to sue the old and new Bonds, and recover the Penal­ties, tho' he had paid much on the new Bonds. And in looking over the Ac­counts found divers Errors, Omissions and Miscomputations, and made his Ac­counts to carry 12 l. per Cent. Interest, and had charged near 3000 l. for Inte­rest at 12 l. per Cent. and that thrown into several Ballances, Interest was again charged at 12 l. per Cent. which was In­terest upon Interest at 12 l. per Cent. and Hinton had several sums of Mony in his Hands which he received, so that he charged the Plantiff with Interest in ef­fect for his own Mony 12 l. per Cent. and Interest for that Interest at 12 l. per Cent. and had overcharged for Prises of Dol­lers: And no allowance made for Mo­ny the Partners paid on Hinton's Account, nor of Mony paid the Assignees; so that the Plaintiff was wronged 5000 l. the Plain­tiff hoped the Account should be unra­velled, being willing to pay what is due on a fair Account, if any thing on his part due. And the old and new Bonds ought to be delivered up.

[Page 271]That Hinton and Short would lay the whole on the Plaintiff, and refused to produce the Books of Accounts and Bonds; That the same might be produ­ced, and old and new Bonds delivered up, and satisfaction on Judgments ac­knowledged, if any be, and the Accounts examined and liquidated, and the Plain­tiff on paying his part of what (if any thing) be due on his part, and that the Defendants might answer, and the Plain­tiff be relieved, Is the substance of the Bill.

They believed Butcher and Short were Hill, Sedgwick and Sitwell for Answer, say Partners, and Hinton their Banker, who received and paid Mony on the joint Ac­count. And as to the Account from Ju­ly 1680. they referred to Hinton's Books, but as to all before, they pleaded the Bonds, and the 9th of July 1680. a Ge­neral Release given Hinton.

It was ordered the Plea should stand 17 July. 4 Jac. II. for an Answer, with liberty for the Plaintiff to except, who excepted, and the Defendants Answered. As to all Errors, Overcharges and Usurious In­terest they referred to Hinton's Books.

That the Plaintiff and Short were Hinton An­swers, and say [...] bound with him to several persons, and that the Plaintiff had paid several sums to the Assignees: That the Plaintiff ex­hibited a Bill against him to Account, and an Account was ordered, but they Accounted between themselves, and the [Page 272] Plaintiff was greatly indebted to him, and 1 July 1680. he entred into 42 several Bonds for payment of 100 l. a-piece at 100 l. a Month; and the 9th of July the Plaintiff gave a General Release, since which he had several dealings with him, and was willing to Account for the same. And by his further Answer,

That the Plaintiff and Short was in­debted to him on the Plaintiffs coming to England, 6000 l. that the Accounts were fairly stated without any abuse. And about Decemb. 1675. they were bound with him to several Creditors, and they gave him Counter-security. As to Er­rors referred to his Books, and that the 4000 l. was brought on the Ballance of the last Account.

Believes the Matters prout Bill, and that Short being dead, his Wife and Adminstra­trix answered. the Plaintiff and her Husband were great sufferers, and that on a fair Account, lit­tle, if any thing was due to Hinton.

That Short in 1680 exhibited a Bill against Hinton, Parker, Parks, Robinson, Watson and Butcher, 12 Nov. 1. W. M. Sedgwick, Sitwell and Hill were made Parties.

And Short dying, his Administratix brought her Bill of Revivor against all the said Defendants, which to the pur­pose, as Butcher's Bill, to have a fair Ac­count, and be relieved.

[Page 273]On reading the Process and view of 11 D [...]cemb. 2 W. & M. Hinton's Accounts, whereby many Er­rors, Overcharges and Miscomputations appeared, The Court declared, the De­fendants, the Assignees ought to stand in place of the Creditors of Hinton, to whom the Bonds of 6300 l. was given, and re­ferred it to Sir John Francklin to look in­to the whole matter, beginning with the Account distinguished by the name of the 4000 l. Account, made up about 1670. and so downwards into the seve­ral Accounts, and to state how he finds the same, and Errors, Overcharges and Miscomputations and Allowances of In­terest not allowed by Law appeared to be in any of Hinton's Books of Ac­counts, and what Mony Butcher and Short, and which of them paid towards discharge of the Bonds in Decemb. 1675. or any other Bonds, and which of them, when, and to whom. And Hinton's Books, Accounts and Bonds were to be left with the Master on Oath.

The Master made his Report, and 22 Jan. 1690. shews the Errors, Overcharges and Mis­computations, and Interest carryed from one Ballance to another at 12 l. per Cent.

It appeared that in the 4000 l. Account▪ 3 Nov. 2 W & M. on hearing on the Report. there was an Error of 500 l. besides 224 l. 14 s. 6 d. charged for Interest above lawful Interest, which were made part of the next Ballance, and carried [Page 274] Interest upon Interest at 12 l. per Cent. And the 4th of Decemb. 1675. the 500 l. between Novemb. 1670. and the said 4th of Decemb. 1675. the Plaintiffs were overcharged in unlawful Interest 1789 l. 1 s. 7 d. So then there was due for Mo­ny and Lawful Interest but 3986 l. 3 s. 11 d. which with 1056 l. 10 s. Lawful In­terest to the 4th of May 1680. made 8042 l. 4 s. 9 d.

Towards discharge whereof the Plain­tiff paid Hinton's Creditors, by his order, 4627 l. 18 s. So there remained due the 4th of May 1680. on the joint Account 414 l. 6 s. 9 d. which with 266 l. 6 s. 9 d. Interest to the 23d of Jan. last, made 680 l. 15 s. 9 d.

And on the Plaintiff, Butcher's particu­lar Account 19 l. 4 s. 3 d. which makes in all 700 l. on payment of which the Plaintiffs Councel prayed the Releases, and all Securities might be delivered up.

On hearing the Defendants Councel on reading the Report, his Defendants Receits for 4300 l. given on executing the Bonds in Decemb. 1675. to the Cre­ditors, The Court declared the Account ought to be opened, and the Plaintiffs not to be charged with more than ap­peared by the Books to be advanced, nor with more than Lawful Interest. And Decreed.

[Page 275]That the Repo [...]t be confirmed, and the Plaintiff paying the Assignees 700 l. before the last day of Easter Term next, the Assignees to deliver up the Releases to be Cancelled, and all Bonds, Counter­bonds and Notes before entred into by the Plaintiffs to Hinton, or to any other person for him, and acknowledg satis­faction on any Judgment or Judgments had by Hinton, or any his Creditors a­gainst the Plaintiffs. And a perpetual In­junction awarded for stay of all proceed­ings at Law against Butcher, for any the matters in question, or demand in these Causes. And the Parties to give Mutual Releases to each other.