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of their persons, and some pecuniary emoluments, upon condition they surrender 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 (f). 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 [473] trans Tiberim (g): and oppression which produced so many *popular insurrections, and secessions to the mons sacer. But I mean the law of 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 (k).” 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 its opposite, we find it afterwards enacted (k), 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 are 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 prodigality and extravagance by this iudulgence 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 [*474] debts of any considerable value. If a gentleman, or *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 murinur, if he suffers the punishment which he has voluntarily drawn upon himself. But in mercantile 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. (f) Taylor, Comment. in L. decemviral. Byn- the chasity of the debtor's wife, but then, by so kersh. Observ. Jur. I. 1. Heinecc. Antiq. III. 30. 4. doing, the debt is understood to be discharged. (g) In Pegu and the adjacent countries in East (Mod. Un. Hist. vii. 128). India, the creditoris entitled to dispose of the debtor himself, and likewise of his wife and children; insomuch that he may even violate with impunity

(h) Cod. 7. 71, per tot.
(i) Inst. 4. 6. 40.
(k) Nov. 135, c. 1.

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 has also (to discourage extravagance) 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.57

The first statute made concerning any English bankrupts, was 34 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 have used the trade of merchandise, in gross or by retail, by way of bargaining, exchange, re-change, bartering, chevisance (1), or otherwise; or have sought their living by buying and selling (3). And by by statute 21 Jac. I. c. 19, persons using the trade or profession of a scrivener, receiving other men's monies and estates into their trust and custody, are also made liable to the statutes of bankruptcy and the benefits, as well as the penal parts of the law, are *extended as well to aliens and denizens as to natural-born sub- [*475] jects; being intended entirely for the protection of trade, in which

(1) That is, making contracts. (Dufresne, II. 569).

a commission has issued, there is no reason why such commission should not be supported. (Ex parte Priddy, decided 8th June, 1793).

(3) Our author intimates, in page 477, that bankruptcy, which is a species of action. a commission of bankruptcy taken out against The two decisions may, perhaps, be reconciled an infant, is of no legal validity. (Ex parte by a third, in which it was settled, upon very Adam, 1 Ves. & Bea. 494. Ex parte Barwis, intelligible principles, that a lunatic cannot 6 Ves. 401). But, where an infant has held commit an act of bankruptcy; but if the parhimself out to the world as an adult and suity was sane when he did the act upon which juris, contracting debts as such, a court of equity will not be disposed summarily to su. persede a commission against him, on his pe. tition; but will leave him to bring his action at law. (Ex parte Watson, 16 Ves. 266). Married women cannot, generally speaking, be made bankrupts; but a feme coverte being a sole trader in London, and the wife or daughter of a freeman, is, by the custom of the city, liable to a commission of bankruptcy. (La Vie v. Philips, 1 W. Bla. 574. Er parte Carrington, 1 Atk. 206). And, in cases not coming within the custom of London, if a married woman be so circumstanced as to be subject to a common law execution, it seems, she will likewise be subject to a commission of bankruptcy, (Ex parte Preston, Cooke's B. L. ch. 3, s. 1), which is considered pretty much in the nature of a statute execution. (Ex parte Detastet, 17 Ves. 251. Ex parte Barned, Glyn & Jameson, 311. Ex parte Freeman, 1 Ves. & Bea. 41. Er parte Brown, Ibid. 66 In the matter of Wait, 1 Jac. & Walk. 610. Lee v. Lopez, 1 Rose, 343. It was laid down in Ex parte Layton, (6 Ves. 440), that a lunatic cannot be made a bank rupt; but, in a later case, (reported Anony mously in 13 Ves. 590), Lord Eldon held that, as a commission of lunacy will not protect the lunatic against an action, so lunacy can not be a defence against a commission of

The second section of the consolidated bankrupt act (6 Geo. IV. c. 16), enacts that all bankers, brokers, and persons using the trade of a scrivener, receiving other men's monies or estates into their trust or custody, and persons insuring ships, or their freight, or other matters, against perils of the sea, warehousemen, wharfingers, packers, builders, carpenters, shipwrights, victuallers, keepers of inns, taverns, hotels, or coffee-houses, dyers, printers, bleachers, fullers, calenderers, cattle or sheep salesmen, and all persons using the trade of merchandise by way of bargaining, exchange, bartering, commission, consignments, or otherwise, in gross, or by retai!; and all persons who, either for themselves, or as agents or factors for others, seek their living by buying and selling, or by buying and selling for hire, or by the workmanship of goods or commodities, shall be deemed traders liable to become bankrupt: Provided, that no farmer, grazier, common labourer, or workman for hire, receiver general of the taxes, or member of or subscriber to any incorporated, commercial, or trading companies established by charter or act of parliament, shall be deemed, as such, a trader liable by virtue of the said act to become bankrupt. (57) See Hov. n. (57) at the end of the Vol. B. II.

aliens are often as deeply concerned as natives.t By many subsequent statutes, but lastly by statute 5 Geo. II. c. 30, (m), bankers, brokers, and factors, are declared liable to the statutes of bankruptcy; and this upon the same reason that scriveners are included by the statute of James I., viz. for the relief of their creditors; whom they have otherwise more opportunities of defrauding than any other set of dealers; and they are properly to be looked upon as traders, since they make merchandise of money, in the same manner as other merchants do of goods and other moveable chattels. But by the same act (n), no farmer, grazier, or drover, shall (as such) be liable to be deemed a bankrupt : for, though they buy and sell corn, and hay, and beasts, in the course of husbandry, yet trade is not their principal, but only a collateral, object; their chief concern being to manure and till the ground, and make the best advantage of its produce. And, besides, the subjecting them to the laws of bankruptcy might be a means of defeating their landlords of the security which the law has given them above all others, for the payment of their reserved rents; wherefore, also, upon a similar reason, a receiver of the king's taxes is not capable (o), as such, of being a bankrupt; lest the king should be defeated of those extensive remedies against his debtors, which are put into his hands by the prerogative. By the same statute (p), no person shall have a commission of bankrupt awarded against him, unless at the petition of some one creditor, to whom he owes 100l.; or of two, to whom he is indebted 1507.; or of more, to whom altogether he is indebted 2001. (4). For the law does not look upon persons whose debts amount to less, to be traders considerable enough, either to enjoy the benefit of the statutes themselves, or to entitle the creditors, for the benefit of public commerce, to demand the distribution of their effects.


(m) 39. (n) 40.

*In the interpretation of these several statutes, it hath been held, that buying only, or selling only, will not qualify a man to

(4) The amount of the debt of the petitioning creditor, or creditors, is still fixed at the sums stated in the text; but the 15th section of the statute of 6 Geo. IV. c. 16, enacts that every person who has given credit to any trader upon valuable consideration for any

↑ Mr. Christian observes, that "any person, whether native, denizen, or alien, who trades to England, although he never resides here as a trader, may be a bankrupt, if he should come to England, and commit an act of bankruptcy whilst he is here. Cowp. 398." And see Allen v. Cannon, 4 Barn. & Ald. 419.

Mr. Christian observes, that "although a farmer, grazier, and drover, cannot from their respective occupations alone be bankrupts, yet if they buy and sell, or are dealers, independently of these characters, they become, like other traders, subject to the bankrupt laws: as, one farmer was declared a bankrupt, who bought large quantities of potatoes, not for planting or consuining upon his farm, but for selling again for profit; (1 Str. 513); and another, who occasionally bought horses, not for the use of his farm, but to make a profit of by re-selling. (1 T. R. 517). A farmer, who makes upon his farın bricks for sule,

(0) Ibid.
(p) ◊ 23.

sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may be a petition. ing creditor, whether he shall have any secu rity in writing, or otherwise, for such sum or not.

from earth not taken from the farm, may be a bankrupt. (1 Bro. 173). But where a man rented a fam wherein there was a brick ground upon which he dug the clay and manufactured bricks for sale, the court of Common Pleas decided he could not be a bankrupt; but this judgment was afterwards reversed by the court of King's Bench. (1 T. R. 34. Cooke, 52, 3rd edit.)"

In Er parte Ridge, (1 Ves. & Bea. 300), it was held that a farmer making lime, from a lime-pit opened before the commencement of his term, and selling the surplus beyond what he wanted for manure, is not a trader within the bankrupt laws. (And see Sutton v. Weely, 7 East, 446). Drovers are not particu larized in the consolidated bankrupt act (6) Geo. IV. e. 16), but cattle and sheep salesmen are expressly declared to be within the purview of the act. See note 7, post.

be a bankrupt; but it must be both buying and selling, and also getting a livelihood by it. As, by exercising the calling of a merchant, a grocer, a mercer, or in one general word, a champan (5), who is one that buys and sells any thing. But no handicraft occupation (where nothing is bought and sold, and where therefore an extensive credit for the stock in trade is not necessary to be had) will make a man a regular bankrupt; as that of a husbandman, a gardener, and the like, who are paid for their work and labour (q). Also an inn-keeper cannot, as such, be a bankrupt (r) (6): for his gain or livehold does not arise from buying and selling in the way of merchandise, but greatly from the use of his rooms and furniture, his attendance, and the like: and though he may buy corn and victuals, to sell again at a profit, yet that no more makes him a trader, than a schoolmaster or other person is, that keeps a boarding-house, and makes considerable gains by buying and selling what he spends in the house; and such a one is clearly not within the statutes (s). But where persons buy goods, and make them up into saleable commodities, as shoe-makers, smiths, and the like; here, though part of the gain is by bodily labour, and not by buying and selling, yet they are within the statutes of bankrupts (1) for the labour is only in melioration of the commodity, and rendering it more fit for sale.

One single act of buying and selling will not make a man a trader (7); but a repeated practice, and profit by it. Buying and selling bank-stock, or other government securities, will not make a man a bankrupt; they not being goods, wares, or merchandise, within the intent of the statute, by which a profit may be fairly made (u). Neither will buying and sell

(q) Cro. Car. 31.

(r) Cro. Car. 549.

Skinn. 291. (s) Skinn. 292. 3 Mod. 330.

(5) It has been long held that, if the affidavit of debt term the debtor a "dealer and chapman," that is a sufficient description of trading to support a commission of bankruptcy. And a general statement in the commission, that the bankrupt "got his living by buy ing and selling," is enough to support it, though the bankrupt is described as a waterman: (Er parte Herbert, 2 Ves. & Bea. 400): for, no clearer information can be received from the expression dealer and chapman," than would be conveyed by the description of the bankrupt as one who "gained his livelihood by buying and selling;" which general statement will admit the finding of any particular trading. (Hale v. Small, 2 Brod. & Bing. 27. S. C. 2 Wils. Cha. Ca. 86).

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(6) The act of 6 Geo. IV. c. 16, expressly enacts, that inn-keepers shall be subject to the bankrupt laws: see ante, the concluding paragraph of note (3) to this chapter.

(7) It has been decided, that, single purchase, made with intent to sell again, is enough to constitute a trading, so as to bring the party within the purview and operation of the bankrupt laws. (Holroyd v. Gwynne, 2 Taunt. 176. Newland v. Bell, Holt's N. P. C. 223). This, however, must be qualified: Lord Ellenborough held, that a fisherman, who bought fish at sea from other boats, for the purpose of making up his own cargo, which he carried ashore and sold, was a trader with in the meaning of the bankrupt laws: (Heanmy v. Birch, 3 Campb. 233): but, Lord Eldon,

(t) Cro. Car. 31. Skinn. 292.
(u) 2 P. Wms. 308.

adverting to this decision, expressed his opinion to be, that, although it would be immaterial whether the acts were few or many, if the fisherman went out for the purpose of buying fish, that would make him a general trader; still, if the case were no more than that a person who went to sea to fish, and, not obtaining a sufficient cargo, buys a few fish to make it up, it would be hasty to say that such a partial buying would amount to a general trading. Such a case, his Lordship added, must always depend upon its own particular circumstances, and be properly the subject of a trial at law. It was further observed, that a farmer, who is converting his apples, the fruit of his orchard, into cider, and finding he has not a sufficient supply from his own orchard, makes up the deficiency by purchasing apples from his neighbours; or the owner and worker of a coal-mine, who buys small articles, as bread, cheese, &c., in order to sell them again to his own pit-men; does not thereby render himself a trader within the bankrupt laws. (Ex parte Gallimore, 2 Rose, 427, 428).

But, it seems quite clear, the question of law is not now governed by the quantum of the trading; it is a settled rule, that, if any stranger may be supplied with the commodity which is sold, and it is not sold as a favour to any particular person, there, the person so selling is subject to the bankrupt laws. (Patman v. Vaughan, 1 T. R. 573. Wright v. Bird, ▲ Price, 22).

ing under particular restraints, or for particular purposes; as, if [477] *a commissioner of the navy uses to buy victuals for the fleet, and dispose of the surplus and refuse, he is not thereby made a trader within the statutes (w). An infant (8), though a trader, cannot be made a bankrupt; for an infant can owe nothing but for necessaries: and the statutes of bankruptcy create no new debts, but only give a speedier and more effectual remedy for recovering such as were before due and no person can be made a bankrupt for debts which he is not liable at law to pay (x). But a feme-covert in London, being a sole trader according to the custom, is liable to a commission of bankrupt (y) (9), (10).

2. Having thus considered who may, and who may not, be made a bankrupt, we are to inquire, secondly, by what acts a man may become a bankrupt (11). A bankrupt is "a trader, who secretes himself, or does certain other acts, tending to defraud his creditors." We have hitherto been employed in explaining the former part of this description, "a trader;” let us now attend to the latter, "who secretes himself, or does certain other acts tending to defraud his creditors." And, in general, whenever

(w) 1 Salk. 110. Skin. 292. (z) Lord Raym. 443.

(8) See ante, note (3) to this chapter.

(9) In New-York, any insolvent debtor residing or imprisoned in the state, may take the benefit of insolvent laws. (2 R. S. 16, 1, and 35, § 2). The property of a debtor may be attached by his creditors, when he, being an inhabitant of the state, departs from it or keeps concealed in it, to defraud his creditors or to avoid civil process: or when, not be ing a resident, he is indebted on a contract made in this state, or to a creditor residing in this state. (2 R. S. 1, § 1). So also if a debtor is imprisoned for a crime in a county jail for more than a year, or in the state prison: (id. p. 14, § 1); or remains imprisoned more than 60 days on execution in a civil action: his creditors may apply for a general assignment of his property. (ld. p. 24, 1). These are the only acts of insolvency: and these acts of concealment, &c., do not of themselves affect any transfer of the insolvent's property. As to the meaning of resident in this act, see 1 Wendell, 43.

(10) See the reference given in note 7. (11) The 3rd, 4th, and 5th sections of the statute of 6 Geo. IV. c. 16, enact, that, if any trader shall depart this realin, or, being out of this realm, shall remain abroad, or depart from his dwelling-house, or otherwise absent himself, or begin to keep his house, or suffer himself to be arrested for any debt not due, or yield himself to prison, or suffer himself to be outlawed, or procure himself to be arrested, or his goods, money, or chattels, to be attached, sequestered, or taken in execution, or make or cause to be made, either within this real or elsewhere, any fraudulent grant or conveyance of any of his lands, tenements, goods, or chattels, or make or cause to be made any fraudulent gift, delivery, or transfer, of any of his goods or chattels; every such trader, doing, suffering, procuring, executing, permitting, making, or causing to be made, any of the acts, deeds, or matters aforesaid,

(y) La Vie v. Philips, M. 6 Geo. III. B. R.

with intent to defeat or delay his creditors, shall be deemed to have thereby committed an act of bankruptcy. But a conveyance of all a trader's property, in trust for the benefit of his creditors, shall not be deemed an act of bankruptcy, unless a commission issue within six calendar months from the execution of such conveyance, provided such trust deed is executed by each of the trustees within fifteen days after the execution thereof by the trader, and the execution of each party is attested by an attorney or solicitor, and due notice is published in the Gazette and newspapers. And it is also enacted, that, if any trader, having been arrested or committed to prison for debt, or on attachment for non-payment of money, shall, upon such or any other arrest, or commitment for debt or non-payment of money, or upon any detention for debt, lie in prison for twenty-one days after any detainer for debt lodged against him, and not discharg ed, every such trader shall be deemed to have thereby committed an act of bankruptcy; or, if any trader, having been arrested, committed, or detained for debt, shall escape out of prison or custody, every such trader shall be deemed to have thereby committed an act of bankruptcy from the time of such arrest, commitment, or detention. And by the 8th section of the same statute, it is enacted, that any trader who shall, after a docket struck against him, compound with the petitioning creditor, so as to pay or give him security for more in the pound in respect of his debt than the other creditors, shall be held to have thereby committed an act of bankruptcy; and if any commission has issued upon the docket so struck, the Lord Chancellor may either su persede the same, or order it to be proceeded in, as he shall see fit: and the creditor so compounding shall forfeit his whole debt, and refund or deliver up the payment or security so by him received."

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