Sivut kuvina


Offences which dominum deservire noluerit (n): by disclaiming to hold of entail forfeitures the lord, or swearing himself not his copyholder (0); si doon copyhold

minum ejuravit, i. e. negavit se a domino feudum habere(p): by neglect to be admitted tenant within a year and a day (9); si per annum et diem cessaverit in petenda investitura (r): by contumacy in not appearing in court after three proclamations (s); si a domino ter citatus non comparuerit(): or

by refusing, when sworn of the homage, to present the truth * 285 ) according to his oath (u): *si pares veritatem noverint, et

dicant se nescire, cum sciant (w). In these and a variety of other cases, which it is impossible here to enumerate, the forfeiture does not accrue to the lord till after the offences are presented by the homage, or jury of the lord's court baron (2): per laudamentum parium suorum (y); or, as it is more fully expressed in another place (2), nemo miles adimatur de possessione sui beneficii, nisi convicta culpa,

quæ sit laudanda (a) per judicium parium suorum. VIII. By bank

VIII. The eighth and last method, whereby lands and ruptcy. tenements may become forfeited, is that of bankruptcy, or

the act of becoming a bankrupt: which unfortunate person may, from the several descriptions given of him in our statute law, be thus defined: a trader, who secretes himself, or does certain other acts, tending to defraud his creditors.

Who shall be such a trader, or what acts are sufficient to denominate him a bankrupt, with the several connected consequences resulting from that unhappy situation, will be better considered in a subsequent chapter (24); when we

(n) Feud. I. 1, t. 21.
(o) Co. Copyh. s. 57.
(p) Feud. I. 2, t. 34, and t. 26, s. 3.
(9) Plowd. 372.
(r) Feud. I. 2, t. 24.
(s) 8 Rep. 99. Co. Copyh. s. 57.
(1) Feud. l. 2, t. 22.

(u) Co. Copyh. s. 57.
(w) Feud. 1. 2, t. 58.
(2) Co. Copyh. s. 58.
(y) Feud. I. 1, t. 21.
(z) Ibid. t. 22.

(a) i. e. arbitranda, definienda. Du Fresne, IV. 79.

(24) See chapter 31.


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shall endeavour more fully to explain its nature, as it most immediately relates to personal goods and chattels. I shall only here observe the manner in which the property of lands and tenements is transferred, upon the supposition that the owner of them is clearly and indisputably a bankrupt, and that a commission of bankrupt is awarded and issued against him.

By statute 13 Eliz. c. 7, the commissioners for that pur- 13 Eliz. c. 7. pose, when a man is declared a bankrupt, shall have full power to dispose of all his lands and tenements, which he had in his own right at the time when he became a bankrupt, or which shall descend or come to him at any time afterwards, before his debts are satisfied or agreed for; and all lands and tenements which were purchased by him jointly with his wife or children to his own use, (or such interest therein as *he may lawfully part with), or purchased with [ *286 ] any other person upon secret trust for his own use; and to cause them to be appraised to their full value, and to sell the same by deed indented and inrolled, or divide them proportionably among the creditors. This statute expressly included not only free, but customary and copyhold, lands; but did not extend to estates-tail, farther than for the bankrupt's life; nor to equities of redemption on a mortgaged estate, wherein the bankrupt has no legal interest, but only an equitable reversion. Whereupon the statute 21 Jac. 1, 21 Jac. I. c. 19. c. 19, enacts, that the commissioners shall be empowered to sell or convey, by deed indented and inrolled, any lands or tenements of the bankrupt, wherein he shall be seised of an estate-tail in possession, remainder, or reversion, unless the remainder or reversion thereof shall be in the crown; and that such sale shall be good against all such issues in tail, remainder-men, and reversioners, whom the bankrupt himself might have barred by a common recovery, or other means; and that all equities of redemption upon mortgaged estates, shall be at the disposal of the commissioners; for they shall have power to redeem the same as the bankrupt himself might have done, and after redemption to sell them.

And also, by this and a former act(6), all fraudulent conveyances to defeat the intent of these statutes are declared void; but that no purchasor bona fide, for a good or valuable consideration, shall be affected by the bankrupt laws, unless the commission be sued forth within five years after the act of bankruptcy committed (25).

(6) 1 Jac. I. c. 15.

(25) The statutes referred to in the he shall purchase, or which shall detext, with numerous others relating to scend, be devised, revert, or come to bankrupts, were repealed by the act of such bankrupt before he shall have ob6 Geo. IV. c. 16, in which the whole tained his certificate; and every such of the bankrupt code, as at present es- deed shall be valid against the banktablished, is consolidated. By the 12th rupt and against all persons claiming section of the statute just mentioned it under him: provided, that, where, acis enacted, that commissioners appoint. cording to the laws of any colony or ed under the great seal shall have full plantation where such lands or tenepower to take the order and direction ments may be situated, such deed of all such lands, teneinents, and here would require registration, enrolditaments, both within this realm and ment, or recording, the same shall abroad, as well copy or customary-hold be so registered, enrolled, or recorded; as freehold, as a bankrupt had in his and no such deed shall invalidate the own right before he became bankrupt; title of any purchaser for valuable conand also all such interest in any such sideration prior to such registration, lands, tenements and hereditaments as enrolment, or recording, without nosuch bankrupt might lawfully depart tice that the commission has issued. withal, and to make sale thereof, or The 65th section enacts, that the comotherwise order the same, for the satis- missioners shall make sale of any lands, faction and payment of his creditors. tenements, or hereditaments, situate And, by the 64th section, it is further either in England or Ireland, whereof enacted, that the commissioners shall, the bankrupt is seised of any estateby deed indented and enrolled, convey tail in possession, reversion, or remainto the assignees, for the benefit of the der, (whereof no reversion is in the creditors, all lands, tenements, and he- Crown), and every such deed shall be reditaments, (except copy or customary- good against the bankrupt and the ishold), in any part of the dominions or sue of his body, and against all persons colonies belonging to his Majesty, to claiming under him after he became which any bankrupt is entitled, and all bankrupt, and against all persons whom interest to which any such bankrupt is the bankrupt by fine, common recovery, entitled in any of such lands, tenements or any other means, might cut off or and hereditaments, and of which he debar from any remainder, reversion, might have disposed; and all such or other interest, in, or out of such lands, tenements, and hereditaments as lands, tenements, or hereditaments.

By virtue of these statutes a bankrupt may lose all his real estates; which may at once be transferred by his com

The 68th and 69th sections enact, the commissioners shall have power to that the commissioners shall have sell and dispose of the same, and such power to make sale of any copyhold or sale shall be valid against the bankrupt customary-hold lands, or of any inter- and all persons claiming under him. est to which a bankrupt is entitled The 76th section enacts, that if any therein, and thereby to entitle any per- bankrupt shall have entered into any sons on their behalf to surrender the agreement for the purchase of any essame for the purpose of any purchas. tate or interest in land, the vendor may ers being admitted thereto; such pur. compel the assignees to elect whether chasers, before they enter into or take they will abide by and execute such any profit of such lands, compounding agreement, or deliver up the same, with the lords of the manors of which and the possession of the premises. the same are holden for such fines and The 77th section enacts, that all pow. other services as have theretofore been ers vested in a bankrupt which he usually paid for the same; and there might legally execute for his own beupon the said lords shall grant unto nefit (except the right of nomination such purchasers the said copyhold or to any vacant ecclesiastical benefice, see customary-hold lands, for such estate or ante, p. 21, note (3) to chapter 3), interest as shall have been sold to may be executed by the assignees. them as aforesaid, reserving the an- The 78th section enacts, that the Lord tient rents, customs, and services. Chancellor may order bankrupts to The 70th section enacts, that any join in conveyances of their real esestates conveyed or pledged upon con- tates, and if they shall not execute such dition, or with power of redemption, by conveyances within the time directed, a man who afterwards becomes bank- they, and all persons claiming under rupt, may be redeemed by his assig- them, shall be stopped from objecting to nees, according to such condition, as the validity of the conveyances; and all fully as the bankrupt might have done. estate, right, and title, which the bankThe 71st section enacts, that if any rupts had in such tenements, shall be real estate of any bankrupt be extend- as effectually barred by such order, as ed after he shall have become bank- if the conveyances had been executed rupt, upon a false pretence of his being by the bankrupts. The 79th secan accountant of, or debtor to, the tion enacts, that if any bankrupt King; a sale of such estate by the com- shall, as trustee, either alone or joint. missioners shall be valid against such ex- ly, be seised of, or entitled to, any tent and all persons claiming under it. real estate, or any interest secured The 73rd section enacts, that if any upon or arising out of the same, the bankrupt, being at the time insolvent, Lord Chancellor may order the assigshall (except upon the marriage of any nees, and all persons whose act or conof his children, or for some valuable sent thereto is necessary, to convey, consideration) have conveyed, assign- assign, or transfer the said estate to ed, or transferred any hereditaments, such persons as the Lord Chancellor

missioners to their assignees, without his participation or consent.

shall think fit, upon the same trusts as and the persons affected by such notice the said estate was subject to before the may reasonably be presumed to have bankruptcy, or such of them as shall be seen it. But, the 86th section enacts, then subsisting and capable of taking ef- that no purchase from any bankrupt fect. The 81st section enacts, that all bona fide and for valuable consideration, conveyances by, and all contracts by though the purchaser had notice at the and with, any bankrupt, bond fide made time of such purchase of an act of and entered into more than two calen- bankruptcy by such bankrupt comdar months before the issuing of the mitted, shall be impeached by reason commission against him, and all exe- thereof, unless the commission shall cutions and attachments against the have been sued out within twelve calands and tenements of such bankrupt, lendar months after such act of bankexecuted or levied more than two ca- ruptcy. And the 87th section enacts, lendar months before the issuing of that no title to any real estate sold unsuch commission, shall be valid, not. der a commission or order in bankwithstanding any prior act of bank- ruptcy, shall be impeached by the ruptcy by him committed; provided bankrupt, or any person claiming unthe person so dealing with such bank- der him, in respect of any defect in the rupt had not, at the time of such con- suing out the commission, or in any of veyance, contract, dealing, or transac- the proceedings under the same, unless tion, notice of any prior act of bank- the bankrupt shall have commenced ruptcy by the said bankrupt commit- proceedings to supersede the said comted. The 83rd section enacts, that the mission, and duly prosecuted the same, issuing of a commission shall be deemed within twelve calendar months from the notice of a prior act of bankruptcy, (if issuing thereof. an act of bankruptcy had been actually These are the statutory provisions at committed before the issuing of the present affecting the real estates of commission), if the adjudication has bankrupts. been notified in the London Gazette,

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