BAN 



BAN 



trader according to the cuftoni, is liable to a commiflion of 

 bankrupt. 



Having {bewn who may, and who may not be made a 

 bankrupt, the next fubjefl of inquir)- comprehends the par- 

 ticular afts of bankruptcy which render a man a bankrupt. 

 For full fatisfaclion on this point, it will be ncceifary to con- 

 fult the fcveral ftatutes, and the refolutions formed upon them 

 by tlie courts. Among thefe may be reckoned, i. Depart- 

 in:; from the realm, whereby a man withdraws himfcif from 

 the jurifdiftion and coercion of tiie law, with intent to de- 

 fraud his creditors. 2. Departing from his own houfe, with 

 intent to fecrete himfelf, and avoid his creditors. 3. Keep- 

 iniT in his own houfe, privately, fo as not to be feen or fpoken 

 with by his creditors (except for jufl and neceffary caufe), 

 which is likewife conftrued to be an intention to defraud his 

 creditors, by avoiding the procefs of the law. 4. Procuring 

 or fuffering himfcif willingly to be arrcftcd, or outlawed, or 

 jmprifoned, without jull and lawful caufe; which is like- 

 wife deemed an attempt to defraud his creditors. 5. Pro- 

 curing his money, goods, chattels, and effeAs, to be attached 

 or fequeftered by any legal procefs; which is another plain 

 anddired endeavour to difappoint his creditors of their fecu- 

 rity. 6. Making any fraudulent conveyance to a friend, or 

 fecrct trnftee, of h.is lands, tenements, goods, or chattels; 

 which is an aft of the fame fufpicious nature with the lajl. 

 7. Procuring any proteftion, not being himfelf privileged by 

 parliament, in order to fcreen his perfon from arretls; which 

 alfo is an endeavour to elude the julliee of ihe law. 8. En- 

 deavouring or dcfiring, by any petition to the king, or bill 

 exhibited in any of the king's courts againll any creditors, to 

 compel them to take lefs than their juft debts; or to procra- 

 ftinate the time of payment, originally contrafted for; which 

 are an acknowledgement of either his poverty or his knavery. 

 9. Lying in prifon for two months, or more, upon arreft or 

 other detention for debt, without finding bail, in order to 

 obtain his liberty. For the inability to procure bail, argues 

 a llrong deficiency ia his credit, owing either to his fufpefted 

 poverty, or ill charafter; and his neglecl to do it, if able, 

 can arife only from a fraudulent intention; in either of which 

 cafes it is high time for his creditors to look to themfelvcs, 

 and compel a diitribution of his effefts. 10. Efcaping from 

 prifon after an arreft for a jull debt of tool, or upwards. 

 For no man woidd break prifon that was able and deiirous 

 to procure bail; which brings it within the reafon of the 

 lall cafe. 11. Negleftiiig to make fatisfaftion for any juft 

 debt to the amount of lool. within two months after fervice 

 of legal procefs, for fuch debt, upon any trader having 

 privilege of parliament. Stat. 13 Eliz. c. 7. I Jac. I. c. 15. 

 21 Jac. I. c. 19. 4 Geo. III. c. 33. 



The Icgiflature having thus by pofitive laws declared 

 what are the ads which (liall be regarded as ciiterions of in- 

 folvency or fraud, on which a commiffion of bankruptcy 

 may be grounded, our courts of juflice will not allow of ex- 

 tending or multiplying adts of bankruptcy by any conftruc- 

 tion or implication. And, therefore, fir John Holt held 

 (Lord Raym. 725.) that a man's removing his goods pri- 

 vately to prevent their being icifed in execution, was no aft 

 of bankruptcy. It has alfo been determined exprefsly, that 

 a banker's flopping cr refufing payment is no aft of bank- 

 ruptcy; and if in confequence of luch refufal, he is arrefled 

 and puts in bail, it is flill no aft of bankruptcy (7 Mod. 

 139.); but if he goes to prifon, and lies there two months, 

 then, and not before, he is become a bankrupt. 



The proceedings in a commiffion of bankrupt, depend 

 entirely on the feveral ftatutes of bankruptcy; and they are 

 digelled by Blackftone into the following concife order. 



And, firft, there muft be a petition to the lord chancellor 

 by one creditor to the amount of tool., or by two to the 

 amount of 150I., or by three or more to the amount ot 

 200I. ; which debts miift be provid by affidavit : upon 

 which he grants a commiffion to fuch diicreet pcrfons as to 

 him fiiall fcem good, who are then ftiled commiffioners of 

 bankrupt. The petitioners, to prevent mahcious applica- 

 tions, muft be bound in a fecurity or bond to the lord 

 chancelloi- of 200I., to make the party amends in cafe they 

 do not prove him a bankrupt. And if on the other hand 

 -they receive any money or cffefts from the bankrupt, as a 

 recompeucc for fuing out the commiffion, fo as to receive 

 more than their rateable dividends of the banknipt's 

 eftate, they forfeit not only what they (hall have fo received, 

 but tlieir whole debt. Thefe provifions are made, as well 

 to fecure perfons in good credit from being damnified by 

 malicious petitions, as to prevent knavidi combinations 

 between the creditors and bankrupt, in order to obtain the 

 benefit of a commiffion. When the commiffion is awarded 

 and ilTucd, the commiffioners are to meet, at their own cx- 

 pence, and to take an oath for the due execution of th'"ir 

 commiffion, and to be allov.ed a fum not exceeding 20s. 

 per diem each, at every fitting. And no commiffion of 

 bankrupt fhall abate, or be void, by the death of the 

 bankrupt, fubfequent to the commiffion, ftat. 1 Jac. L 

 c. 15. ; nor upon any demife of the crown, ftat. 5 Geo. H. 

 c. 30. The granting of a commifiion of bankruptcy is not 

 diferctionary, but a matter of right. I Vtrn. 153. Stat. 

 13 Eli-/, c. 7. 



When the commiffioners have received their commiffion, 

 they are firft to receive proof of the perfon's being a trader, 

 and having committed fomc aft of bankruptcy ; and then 

 to declare him a bankrupt, if proved fo ; and to give notice 

 thereof in the gazette, and at the fame time to appoint 

 three meetings. At one of thefe meetings an tleftion niuft 

 be madeof allignces. And at the third meeting, at fartheft, 

 which muft be on the forty-fecond day after the advertife- 

 ment in the gazette (unlefs the time be enlarged by the 

 lord chancellor), the bankrupt, upon notice alfo perfonally 

 ferved upon him or left at his ufual place of abode, muil 

 furrender himfelf perfonally to the commiffioners ; which 

 funender (if voluntary) protects him from all arrefts till 

 his final examination is paft : and he muft thenceforth in 

 all refpefts conform to the direftions of the ftatutes of 

 bankruptcy ; or, in default of either furrenderor conformity, 

 (hall be guilty of felony without benefit of clergy, and (hall 

 fuffcr death, and his goods and eftate fiiall be diftributed 

 among his creditors. Stat. 5 Geo. H. c. 30. 



Li cafe the bankrupt abfconds, or is likelv to rim away, 

 between the time of the commiffion iffucd, and the laft day 

 of furrender, he may by warrant from any judge or juftice of 

 the peace be apprehended and committed to the county 

 goal, in order to be forthcoming to the commiffioners ; 

 who are alfo empowered immediately to grant a warrant for 

 feifing his goods and papers. Stat. 5 Geo. II. c. 30. 



W^hen the bankrupt appears, the commiffioners are to 

 examine him touching all matters relating to his trade and 

 effefts. They may alfo fummon before them, and examine 

 the bankrupt's wife, and any other perfon whalfoever, as to 

 all matters relating to the bankrupt's affairs. And in cafe 

 any of them fliall refufe to anfwer, or (hall not anfwer fully 

 to any lawful queftion, or fliall refufe to fubfcribe fuch 

 their examination, the commiffioners may commit them to 

 prifon without bail, till tht-y fubmit tliemfelves and make 

 and fign a full anfwer ; the commiffioners fpecifying in their 

 wairant of commitment the queftioa fo refufed to be an- 



fwcrcd. 



