« EdellinenJatka »
or of a promis sory note, on default of the maker.
indorser is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorser, as of the drawer. And if such indorser, so called upon, has the names of one or more indorsers prior to his own, to each of whom he is properly an indorsee, he is also at liberty to call upon any of them to make him satisfaction; and so upwards. But the first indorser has nobody to resort to, but the drawer only t.
What has been said of bills of exchange is applicable also to promissory notes, that are indorsed over, and negotiated from one hand to another; only that, in this case, as there is no drawee, there can be no protest for non-acceptance; or rather the law considers a promissory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of non-payment by the drawer, the several indorsees of a promissory note have the same remedy, as upon bills of exchange against the prior indorsers.
+ Mr. Christian observes, that " the the actions, yet he can recover but one holder of the bill may bring actions satisfaction for the value of the bill; against the acceptor, drawer, and all but he may sue out execution against the indorsers at the same time ; but all the rest for the costs of their respectthough he may obtain judgments in all ive actions. (Bayley, 43).”
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 x. By bankupon (a), so far as it related to the transfer of the real estate
ruptcy. of the bankrupt (1). 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.
1. Who may become a bankrupt. A bankrupt was be- 1. Who may fore (6) defined to be “ a trader, who secretes himself, or
rupt. “ does certain other acts, tending to defraud his creditors.” He was formerly considered merely in the light of a crimi
become a bank
(a) See page 285.
(1) See ante, note 25 chap. 18, isions at present affecting the real p. 286, a summary of the statutory estates of bankrupts.
nal or offender (c) †; and in this spirit we are told by Sir
Edward Coke (d), that we have fetched as well the name, [ *472 ] as the wickedness *of bankrupts from foreign nations (e).
But at present the laws of bankruptcy 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 general 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 unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors (2)
(c) Stat. 1 Jac. I. c. 15, s. 17. signifies a trace or track, and tell us (d) 4 Inst. 277.
that a bankrupt is one who hath re(e) The word itself is derived from moved his banque, leaving but a trace the word bancus or banque, which sig- behind. (4 Inst. 277). And it is obnifies the table or counter of a trades- servable that the title of the first man, (Dufresne, I. 969), and ruptus, English statute concerning this offence, broken; denoting thereby one whose 34 Hen. VIII. c. 4, “ against such pershop or place of trade is broken and sons as do make bankrupt,” is a literal gone; though others rather choose to translation of the French idiom, qui adopt the word route, which in French font banque route.
(2) At this time of day, it would be criminal. (Ex parte Stoke, 7 Ves. 407). considered a very harsh application of A bankrupt, by fraudulent concealment the term, to speak of a bankrupt as a of his effects, may still bring upon him
† Mr. Christian observes, that the bankrupt law appears to have “ throughout the three first statutes been to prevent and defeat the frauds the bankrupt is uniformly called an of criminal debtors." offender, and the original design of
In this respect our Legislature seems to have attended to The Roman law the example of the Roman law. I mean not the terrible law on this subject. 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 trans Tiberim (g): an oppression which produced so many *popular insurrections, and secessions to the mons [ * 473 ] 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” (h). For, as the emperor justly observes (i),
(f) Taylor, Comment. in L. decem- insomuch that he may even violate with viral. Bynkersh. Observ. Jur. I. 1. impunity the chastity of the debtor's Heinecc. Antiq. III. 30. 4.
wife, but then, by so doing, the debt (g) In Pegu and the adjacent coun- is understood to be discharged. (Mod. tries in East India, the creditor is en- Un. Hist. vii. 128). titled to dispose of the debtor himself, (h) Cod. 7. 71, per tot. and likewise of his wife and children; (i) Inst. 4. 6. 40.
self, most deservedly, the heaviest in- debts which might have been proved fliction of the law, short of the punish- under the commission against him, ment of death: (Stat. 6 Geo. IV. c. 16, from prolonged imprisonment: (see the s. 112): but, by honestly giving up 121st section of the statute just cited): the whole of his effects to his creditors, and an honest bankrupt may even, (in he may, according to the present mild cases where the dividend paid affords administration of justice, actually en- reasonable evidence that he has not title himself to privileges, which debtors been wantonly speculating at the risk who are not liable to the bankrupt of others, without funds of his own), laws cannot claim. For instance, he entitle himself to a return of part of is, by virtue of a certificate fairly ob- his assets. (See the 128th & 129th tained, exempted, with regard to all sections of the same statute).
“ inhumanum erat spoliatum fortunis suis in solidum dam“ nari.” 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 bankrupt The laws of England, more wisely, have steered in the laws only appli- middle between both extremes: providing at once against cable to actual traders. the inhumanity of the creditor, who is not suffered to con
fine 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 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 unjustifable practice, for any person but a trader to encumber him
self with debts of any considerable value. If a gentleman, [ * 474 ) 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 murmur, if he suffers the punishment which he has voluntarily drawn upon himself. But in mercantile transactions the case is far otherwise. Trade cannot be car
(k) Nov. 135, c. 1.