double values; that then the one moiety of the said over plus of the said forfeitures of the double values so remain ing, shall be by the said commissioners so executing the said commission, within convenient time after the levying thereof, paid unto the Queen's Majesty, her heirs and successors; and the other moiety thereof shall be by the said commissioners imployed and distributed to and amongst the poor within the hospitals in every city, town, or coun→ ty, where any such bankrupt shall happen to be; any thing in this act to the contrary thereof notwithstanding. (7)

eth himself

9. And be it further enacted by the authority afore- A remedy against him said, That if any such person or persons, which is or shall who withdrawbe indebted, do of purpose withdraw him or themselves from his dwellout of or from his or their usual mansion house or houses: ing place. that then upon complaint thereof made to the said commissioners, having authority as is aforesaid, the same commissioners, or the more part of them, shall by virtue and authority of this present act, have full power and authority to award five proclamations to be made, in the Queen's name, upon five sundry market days, in such places near the place where such bankrupt hath most commonly dwelled or made his abode, commanding him or them by the same proclamation in the Queen's name to return with all convenient speed, and to yield his or their body before the said commissioners, having authority as is aforesaid, or one of them, at such time and place, as by the said proclamation shall be appointed: and if the said person do not according to such proclamation repair and yield his or their body, as is aforesaid, that then the

(7) It may be doubted whether these two last sections are now in force, and whether they are not repealed by the 11 and 12 of the next statute, 1 J. 1. c. 15.

If the party denies falsely he has the bankrupt's property, he is subject to the penalties of perjury; if he admits it, it then may be recovered for the benefit of the creditors and of the bankrupt.

C

Penalty of a bankrupt not yielding him

body of all and every such offender or offenders shall be adjudged, taken, and deemed to all intents and purposes clamation, and out of the Queen's protection: and that also every person

self after pro

of such as do

hide or receive and persons, that shall willingly and wittingly help to

him.

A remedy for the creditors if

he be not satis

fied for his whole debt.

hide or convey, or shall willingly receive, detain, or keep secretly any person or persons so demanded by proclamation, as is aforesaid, shall suffer such pains by imprisonment of his or their bodies, or pay such fine to our sovereign lady the Queen's Majesty, her heirs and successors, as to the Lord Chancellor, or Lord Keeper of the Great Seal (being informed thereof by the commissioners so to be appointed as is aforesaid, or the more part of them} shall seem meet and convenient, for their said offence or offences. (8)

10. Provided always, and be it further enacted, That if the creditors of any such offender or offenders, debtor or debtors, which so do depart the realm, keep his or their house or houses, or otherwise absent or withdraw him or themselves into places unknown, or take sanctuary,or will suffer him or themselves to be arrested or outlawed, or yield his or their bodies into prison purposely, and for the causes aforesaid, be not fully satisfied, or otherwise contented for their debts and duties by the ways and means before specified and declared: that then the said creditor or creditors, and every of them, shall and may have their remedy for the recovery and levying of their said debts or duties whereof they shall not be fully satisfied, paid, or otherwise contented, in form aforesaid, against the said offender or offenders, in like manner and form as they should and might have had before the making of this act. And that the said creditor or creditors,

(s) This section is virtually repeated by the 5 Geo. c. 30. sect. 1, which makes the bankrupt liable to suffer death if he does not surrender himself conformably to the directions of that statute.

and every of them, shall be only barred and excluded, by virtue of this act, of and for every such part and portion of the said debts and duties, as shall be paid, satisfied, distributed, or delivered unto him or them by order of the said persons, as is aforesaid, and of no more portion or parcel thereof; any thing herein specified that may be taken or construed to the contrary notwithstanding. (9)

(9) This section proves most incontestably that the discharge of the bankrupt formed no part of the policy or design of the original bankrupt law until the debts of the bankrupt were fully satisfied. From this section it is also clear that the creditor might receive a dividend or dividends, and afterwards sue the bankrupt for the remainder; but he could only have a remedy against his person, for by the next section all his after-acquired property was subject to the authority of the commissioners. In the year 1738 an assignee had received two dividends, and had sued the bankrupt and held him in execution for the remainder.

Lord Hardwicke ordered the creditor to refund the dividends if he intended to elect to proceed at law. This section is not mentioned in the case. How a statute which is expressed with so much clearness, or without any ambiguity, could be rendered of no avail by any authority less than that which created it, I am unable to explain. Exparte Capot, 1 Atk 219. In 1799 a similar action exactly was brought in the Court of King's Bench, in which the defendant was arrested, and upon a motion to discharge the defendant out of custody upon filing common bail, Lord Kenyon referred the defendant to the Court of Chancery," as the usual forum for the decision of such questions." It is very extraordinary that this section was there never referred to. Oliver v. Ames, 8 T. R. 364. By 49 Geo. 3. c. 121. sect. 10: if any creditor has commenced any action or suit for any demand which might be proved as a debt, he shall not prove or claim such debt without relinquishing the action or suit; and the proof or claim of a debt shall be deemed an election to take the benefit of such commission with respect to the debt proved or claimed. These last words may be considered a repeal of this section. See more cases upon election in the note to that section. This section is of great importance to uncertificated bankrupts. The discharge and certificate were not intro

Lands, &c. ex- 11. Provided always, and be it also enacted by the au

tendable, which

he purchased, thority aforesaid, That if any person or persons, who

duced until the 4 and 5 Ann. c. 17 expired, and they now depend upon the 5 Geo. 2. c. 30. No assignment of any kind exists under this statute, but the commissioners were to take possession themselves, or by their officers, of all the tangible property, and were to deliver it and sell it for the benefit of the creditors. The 21 James 1. c. 19. sect. 8, was introduced to remove doubts that they themselves or any person by their warrant might break open doors to obtain possession of the bankrupt's property. This section declares that all the future property of the bankrupt until all his debts are satisfied, may be dealt with precisely in the same manner as that which he was possessed of when he became bankrupt. Since general assignees were introduced by 5 Geo. 2. c. 30, Lord Hardwicke has said "that all his future personal estate is affected by the assignment; and every new acquisition will vest in the assignees; but as to the future real estates there must be a new bargain and sale," Exparte Proudfoot, 1 Atk. 253. The assignment operates, I apprehend, as a general authority to seize, or as a warrant of seizure. That no new assignment is necessary in the case of newly acquired personal property has lately been confirmed in a very important modern case: Kitchen v. Bartsh, 7 East 53.

In that case the plaintiff brought an action to recover the money he had lent to the defendant. The defendant pleaded that the plaintiff was a bankrupt, and had never obtained his certificate, that after the undertaking of the defendant, he was requested to pay to them the money he owed the plaintiff. The plaintiff replied that the defendant had treated with him as a person capable of receiving credit. To this there was a general demurrer. There was judgment for the defendant. It is fully established by the judgment that all the future property of an uncertificated bankrupt passes to the assignees for the benefit of his creditors, but where the assignees claim they are entitled to the property.

Lord Ellenborough observed, "that it is contended "that the objection cannot be set up by a third person; "and Chippendale v. Thomlinson (Cooke 431) is refer"red to as shewing that the bankrupt is entitled to the

earnings of his personal labour, without which it is said "he would be left to starve, which could not have been

to a bankrupt.

is or shall be punished and declared to be a bankrupt by or do descend virtue of this act, shall at any time after purchase any lands, tenements, hereditaments, free or copy, offices, fees, or goods, or chattles or that any lands, tenements, hereditaments, free or copy, offices, fees, goods or chat- This section is copied verbatles shall descend, revert, or by any means come to any tim into the 11 such person or persons, being bankrupts, as is aforesaid, and 12 Geo. S, c. 8, Irish stabefore such time as their debts due to their creditors tute, sect. 8. shall be fully satisfied and paid, or otherwise agreed for; that then the said lands, tenements, hereditaments, as well free as copy, offices, fees, goods and chattles, shall by virtue of this act, by the said commissioners to be appointed, as is aforesaid, or the more part of them, be bar. gained, sold, extended, delivered, and used for and towards the payment of the said creditors, in such like manner and form, as other the lands, tenements, hereditaments, free or copy, offices, fees, goods, and chattles, of the said bankrupts, which they had when they were declared first to be bankrupts, should or might have been bargained, sold, disposed, or used by virtue of this act.

12. Provided always, That this act shall not extend to Lands convey

"intended by the legislature. The hardship of that case

'might perhaps have warped the opinion of the judges, "when the evil might have been better remedied by sta"tute. There is now, however, an invariable practice of "above twenty years in support of that series of cases."

It seems to be agreed, from the authority referred to by Lord Ellenborough, that the bankrupt may recover the earnings of his labour for his daily subsistence contrary to the consent of his creditors, for if he were deprived of these, he would cease to work. But this can only apply to what is necessary for the support of himself and family. Any accumulation beyond that would fall under the general law. But when the assignees do not interfere the bankrupt may recover any property in an accion, for he has a right and title to it against all the rest of the world. Webb v. Fox, 7 T. R. 391. Fowler v. Down, 1 Bos. and Pull. 44.