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pledge, and all the forms of locatio. Not only the lastmentioned right, but others depend on the distinction. Most recent works treat the bailor's possession, and his right to sue in trespass instead of case, as confined to the simple bailments.

It is worth notice that the class includes a consensual civil-law contract (mandate) as well as two real ones, and excludes a real one (pignus or pledge) to form with the consensual locatio the other catagory. This shows of how little real meaning and effect these Roman

names are.

CHAPTER THE THIRTY-FIRST.

OF TITLE BY BANKRUPTCY.

The preceding chapter having treated pretty largely of the acquisition of personal property by several commercial methods, we from thence shall be easily led to take into our present consideration a tenth method of transferring property, which is that of

X. Bankruptcy; a title which we before lightly touched upon, so far as it related to the transfer of the real estate of the bankrupt. At present we are to treat of it more minutely, as it principally relates to the disposition of chattels, in which the property of persons concerned in trade more usually consists, than in lands or tenements. Let us therefore first of all consider, 1. Who may become a bankrupt; 2. What acts make a bankrupt; 3. The proceedings on a commission of bankrupt; and 4. In what manner an estate in goods and chattels may be transferred by bankruptcy.

b

1. Who may become a bankrupt. A bankrupt was before defined to be "a trader, who secretes himself, or does certain other acts, tending to defraud his creditors."* He was formerly considered merely in the light of a criminal or offender; and in this spirit we are told by Sir Edward Coke, that we have fetched as well the name, as the wickedness, [472] of bankrupts from foreign nations. But at present the laws of bankc Stat. 1 Jac. I. c. 15. § 17. d 4 Inst. 277.

a See pag. 285.

b Ibid.

e

d

e The word itself is derived from the word bancus or banque, which signifies the table or counter of a tradesman (Dufresne I. 9.9) and ruptus, broken; denoting thereby one whose shop or place of trade is broken and gone; though others rather choose to adopt the word route, which in French signifies a trace or tract, and tell us that a bankrupt is one who hath removed his banque, leaving but a trace behind. (4 Inst. 277.) And it is observable that the title of the first English statute concerning this offense, 34 Hen. VIII. c. 4. "against such persons as do make Bankrupt," is a literal translation of the French idiom, qui font banque route.

*Cited 1 How. 271; 3 Story, 386; 2 Wood & M. 357; 2 Nott & McC. 245.

ruptcy are considered as laws calculated for the benefit of trade, and founded on the principles of humanity as well as justice; and to that end they confer some privileges, not only on the creditors, but also on the bankrupt or debtor himself. On the creditors; by compelling the bankrupt to give up all his effects to their use, without any fraudulent concealment: on the debtor, by exempting him from the rigor of the gen.. eral law, whereby his person might be confined at the discretion of his creditor, though in reality he has nothing to satisfy the debt: whereas the law of bankrupts taking into consideration the sudden and un.. avoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surren der up their whole estate to be divided among their creditors.

In this respect our legislature seems to have attended to the example of the Roman law. I mean not the terrible law of the twelve tables; whereby the creditors might cut the debtor's body into pieces, and each of them take his proportionable share: if indeed that law, de debitore in partes secando, is to be understood in so very butcherly a light; which many learned men have with reason doubted. Nor do I mean those less inhuman laws (if they may be called so, as their meaning is indisputably certain) of imprisoning the debtor's person in chains; subjecting him to stripes and hard labour, at the mercy of his rigid creditor; and sometimes selling him, his wife, and children, to perpetual foreign slavery trans Tiberim:s an oppression, which produced so many [473] popular insurrections, and

f Taylor Comment. in L. decemviral. Bynkersh. Observ. Jur. I 1.Heinecc Antiq. III 30 4.

g In Pegu, and the adjacent countries in East India, the creditor is entitled to dispose of the debtor himself, and likewise of his wife and children; insomuch that he may even violate with impunity the chastity of the debtor's wife: but then, by so doing, the debt is understood to be discharged, (Mod. Un. Hist. vii. 128.)

2 BLACKST.-61

But I mean the law of

secessions to the mons sacer. cession, introduced by the christian emperors; whereby, if a debtor ceded, or yielded up all his fortune to his creditors, he was secured from being dragged to a gaol, "omni quoque corporali cruciatu semoto." h For, as the emperor justly observes i "inhumanum erat spoliatum fortunis suis in solidum damnari." Thus far was just and reasonable: but, as the departing from one extreme is apt to produce it's opposite, we find it afterwards enacted, that if the debtor by any unforeseen accident was reduced to low circumstances, and would swear that he had not sufficient left to pay his debts, he should not be compelled to cede or give up even that which he had in his possession: a law, which under a false notion of humanity, seems to be fertile of perjury, injustice, and absurdity.

The laws of England, more wisely, have steered in the middle between both extremes; providing at once against the inhumanity of the creditor, who is not suffered to confine an honest bankrupt after his effects aro delivered up; and at the same time taking care that all his just debts shall be paid, so far as the effects will extend. But still they are cautious of encouraging prodi. gality and extravagance by this indulgence to debtors; and therefore they allow the benefit of the laws of bankruptcy to none but actual traders;* since that set of men are, generally speaking, the only persons liable to accidental losses, and to an inability of paying their debts, without any fault of their own. If persons in other situations of life run in debt without the power of payment, they must take the consequences of their own indiscretion, even though they meet with sudden accidents that may reduce their fortunes: for the law holds it to be an unjustifiable practice, for any person but a trader to encumber himself with debts of any consider

h Cod. 7. 71. per tot.

i Inst. 4. 6. 40.

k Nov. 135. c. 1

*-* Quoted, 2 Nott & McC 243.

able value. If a gentleman, or [474] one in a liberal profession, at the time of contracting his debts, has a sufficient fund to pay them, the delay of payment is a species of dishonesty, and a temporary injustice to his creditor and if, at such time, he has no sufficient fund, the dishonesty and injustice is the greater He cannot therefore murmur, if he suffers the punishment which he has voluntarily drawn upon himself. But in mer. cantile transactions the case is far otherwise. Trade cannot be carried on without mutual credit on both sides: the contracting of debts is therefore here not only justifiable, but necessary. And if by accidental calamities, as by the loss of a ship in a tempest, the failure of brother traders, or by the non-payment of persons out of trade, a merchant or trader becomes incapable of discharging his own debts, it is his misfortune and not his fault. To the misfortunes therefore of debtors, the law has given a compassionate remedy. but denied it to their faults: since, at the same time that it provides for the security of commerce, by enacting that every considerable trader may be declared a bankrupt, for the benefit of his creditors as well as himself, it is also Oto discourage extravagance3 declared, that no one shall be capable of being made a bankrupt, but only a trader; nor capable of receiving the full benefit of the statutes, but only an industrious trader.

The first statute made concerning any English bank. rupts, was 3 Hen. VIII. c. 4. when trade began first to be properly cultivated in England: which has been almost totally altered by statute 13 Eliz. c. 7. whereby bankruptcy is confined to such persons only as havɔ used the trade of merchandize, in gross or by retail, by way of bargaining exchange, rechange, bartering, chevisance, or otherwise; or have sought their living by buying and selling. And by statute 21 Jac. I. c. 19. persons using the trade and profession of a scrivener, that is, making contracts. (Dufresne. II 569)

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