BAN 



v.'ear a green cap; at Lucca, an orange cap. Our le'rif- 

 lators, however, in framing the laws of bankruptcy, ft'cm 

 humanely and wifely to have attended to the example of the 

 Roman law of " Ceffion," introduced by the Chriilian em- 

 perors; by which, if a debtor ceded or yielded up all his 

 fortune to his creditors, he wa; ftcured from being dragged 

 to a gaol ; " Omni quoque corporali craciatu femoto." (Cod. 

 y.yi.fertot.) For as the emperorjuftly obferves (In!h a. 

 6. 40.), " inhumanum erat fpoliatum fortunis fuis in folidum 

 dauinari," But by a deviation into the other extreme, it 

 was afterwards enacled (Nov. 135. c. i.), that if the debtor 

 by any unforefeen accident was reduced to low circnm- 

 ftances, and would /if.-ai- that he had not fufficient left to 

 pay hid debts, he (hould not be compelled to cede or give 

 up even that which he had in his pofTcRion ; — a law which 

 under a falfe notion of humanity, fcems to be fertile of per- 

 jury, injuftice, and abfurdity. The laws of England (leer 

 between thefe extremes; providing at once againft the in- 

 humanity of the creditor, who is not fullered to confine an 

 honeft bankrupt who has delivered up all his efFcfts, and 

 at the fame time taking care that all his juft debts ihall be 

 paid, fo far as the effecis will extend. But they are ftill 

 cautious of encouraging prodigality and extravagance by 

 this indulgence to debtors; and, accordingly, allov/ the 

 benefit of the laws of bankruptcy to none but aftual 

 traders, who, generally fpeaking, are the only perfons liable 

 to accidental lolTes, and to an inability of paying their debts, 

 without any fault of their own. Trade cannot be carried 

 on without mutual credit on both fides; and here the con- 

 traftiiig of debts is not only juftifiable, but even neccffarv. 

 And if by accidental calamities, as by the lofs of a {hip in'a 

 tempeft, the failure of brother traders, or by the non-pay- 

 ment of perfons out of trade, a merchant or trader becomes 

 incapable of difcharging his own debts, it is his misfortune 

 and not his fault. To the misfortunes of debtors, there- 

 fore, the law has given a rompaflior.ate remedy, but denied 

 it to their faults; fince, while it provides for the fecurity of 

 commerce, by enacting that every confiderable trader may 

 be declared a banknipt, for the benefit of his creditors as 

 well as himfelt, it has alfo, with a view of difcourao-ing ex- 

 travagance, declared, that no one fhall be capable of being 

 made a bankrupt, but only a trader ; nor capable of receiv- 

 ing the fullbenefit of the ftatutes, butonly an indi^riotis trader. 

 The firll ftatiite made concerning any Engliih bankrupts 

 was 34 Hen. VIII. c. 4. when trade began firft to be pro- 

 perly cultivated in England: which has been almoft totally 

 zltered by ftatute 13 Eliz. c. 7. whereby bankruptcy is con- 

 fined to fuch perfons only as have ufed the trade of nier- 

 chandile, in grofs or by retail, by way of bargaining, ex- 

 change, rechange, bartering, chevilance, or otherwife; or 

 have fought their living by buying and felling. And by 

 ftatute 21 Jac. I. c. 19. perfons ufing the trade or profeflion 

 of a fcrivener, receiving other men's monies and eftates into 

 their truft and cullody, a're alfo made liable to the ftatutes 

 of bankruptcy; and the b..'nefits, as well as the penal parts 

 of the law, are extended as well to aliens and denizens as to 

 natural born fubjeAs, being intended entirely for the pro- 

 teftion of trade, in which aliens are often as deeply con- 

 cerned as natives. By many fnhitquent ftatutes, biit laftly 

 by ftatute 5 Geo. II. c. 30. bankers, brokers, and faflors, 

 are declared liable to the ftatutes of bankriiptcy; and this 

 upon the fame reafon that Icriveners are included by tlie 

 ftatute of James 1. viz. for the relief of their crcd'tors; whom 

 they have otherwife more opportunities of defraudmg than 

 any other fet of dealers; and they are properly to be looked 

 upon as traders, fince they make n-.crchandife of money, in 

 Vol. III. 



BAN 



the fame manner as other merchants do of goods and other 

 moveable chattels. _ But by the fame aft, no farmer, grazier 



a collateral, objeft; their chief concern being to manure ani 

 till the ground, and make the beft advantage of its produce 

 And, bchdes, the fubjeding them to the laws of bankruptcy 

 might be a means of defeating their landlords of the fccmity 

 which the law has given them above all others, for the pay- 

 ment of their referved rents; wherefore alfo, upon a fimilar 

 reafon, a receiver of the king's taxes is not capable, as fuch, 

 ol being a banknipt ; left the king ftiould be defeated of thofe 

 extei.live remedies againft his debtors, which arc put into 

 his hands by the prerogative. By the fame ftatute, no per- 

 fon fliall have a comminion of bankrupt award.d a-rainft 

 him, unlefs at the petition of fome one creditor to whom 

 he owes tool.; or of two, to whom he is indebted 150I.; or 

 of more, to whom altogether he is indebted 2Col. For the 

 law does not look upon ptrlons, wh.ofe debts amount to lefs, 

 to be traders confiderable enough, either to enjoy the benefit 

 of the ftatute themfelves, or to entitle the creditors, for the 

 benefit of public commerce to demand the diftribudon of 

 their effedls. 



In the interpretation of thefe fevcral ftatutes, it hath 

 been held, that buying only, or felling onlv, will not qualify 

 a man to be a bankrupt; but it muft be bcth 'ouying and 

 felling, and alfo gettiug a livelihood by it ; as, by cxercif- 

 ing the calling of a merchant, a grocer,' a mercer, or, in one 

 general word, a chapman, who is one that buys and fell? any- 

 thing. But no handicraft occupation (where nothing ii 

 bought and fold, and where therefore an extet.fivc credit for 

 the ftock in trade is not neccflary to be had) will make a man 

 a regular bankrupt ; as that of a huftiandman, a gardener, and 

 the like, who are paid for their work and labour. Alfo an 

 inn-keeper cannot, as fuch, be a bankrupt; for his gain or 

 livelihood does not arife from buying and felling in the way of 

 merchandife, but in a great degree from the ul'e of his rooms 

 and furniture, his attendance, and the like; and though he may- 

 buy corn and victuals, to fell again at a profit, yet that no 

 more makes him a trader, than a fchoolm.after or other per- 

 fon is, that keeps a bc.arding-houfe, and makes cor.fiderdble 

 gains by buying and felling what he fpends in the ho-jfc j 

 and fuch a c ne is clearly not within the ftatute?. But where 

 perfons buy goods, and make them up into faleable cummo- 

 dities, as fiioe-n^akers, fmiths, and the like; here, though 

 part of the gain is by bodily labour, and not by buying and 

 felling, yet they arc within the ftatutes of bankiiipts ; tor the 

 labour is only in melioration of the commodity, and render- 

 ing it more fit for fale. 



One fingle act of buying and felling will not make a man 

 a trader; but a repeated pra<ftice, and profit bv it. Buying 

 and felling bank-ftock, or other govenuient fecuiitics, will 

 not make a man a bankrupt; they not being goods, wares, 

 or merchandife, within the intent of the ftatute, by which 

 a profit may be fairly made. Neither will buying and felling 

 under particular rtftraints, or for particdar purpofes; as if 

 a commiflioncr of the navy ufes to buy victuaL for the fleet, 

 and difpofeof the fuiplus and refufe, he is not thereby made 

 a trader within the ftatute. An infant, thocgh a trader, 

 cannot be made a banknipt; for an infant can owe nothing 

 but foi neceftaiics; and the ftatutef of biukruptcy create ro 

 new debts, but only give a fpetdier aid n-ore effeftual re- 

 medy for recovering fueh as were before due; and no perfon 

 can be made a bankrupt for debts which he is not liable at 

 law to pay. But a feme covert in London, being r. fole 

 4 D tradei- 



