fary apparel, household goods, and the tools and implements of their trades". THUS much for the proceedings on a commiffion of bankrupt, so far as they affect the bankrupt himself perfonally. Let us next confider, 4. How fuch proceedings affect or transfer the eftate and property of the bankrupt. The method whereby a real estate, in lands, tenements, and hereditaments, may be transferred by bankruptcy, was fhewn under it's proper head in a former chapter. At prefent therefore we are only to confider the transfer of things perfonal by this operation of law. By virtue of the ftatutes before-mentioned all the perfonal eftate and effects of the bankrupt are confidered as vefted, by the act of bankruptcy, in the future affignees of his commiffioners, whether they be goods in actual possession, or debts, contracts, and other chofes in action; and the commiffioners by their warrant may cause any house or tenement of the bankrupt to be broke open, in order to enter upon and feife the fame. And when the affignees are chofen or approved by the creditors, the commiffioners are to affign every thing over to them; and the property of every part of the estate is .thereby as fully vefted in them, as it was in the bankrupt himself, and they have the fame remedies to recover it. THE property vefted in the affignees is the whole that the bankrupt had in himself, at the time he committed the first act of bankruptcy, or that has been vested in him fince, before his debts are fatisfied or agreed for. Therefore it is ufually faid, that once a bankrupt, and always a bankrupt: by which is meant, that a plain direct act of bankruptcy once committed cannot be purged, or explained away, by any fubfequent conduct, as a dubious equivocal act may bef; but that, if a commillion is afterwards awarded, the commiffion and the property of the affignees fhall have a relation, or rc ference, back to the first and original act of bankruptcy. Infomuch that all tranfactions of the bankrupt are from that time abfolutely null and void, either with regard to the alienation of his property, or the receipt of his debts from fuch as are privy to his bankruptcy; for they are no longer his property, or his debts, but thofe of the future affignees. And, if an execution be fued out, but not served and executed on the bankrupt's effects till after the act of bankruptcy, it is void as against the assignees. But the king is not bound by this fictitious relation, nor is within the ftatutes of bankrupts "; for if, after the act of bankruptcy committed and before the affignment of his effects, an extent iffues for the debt of the crown, the goods are bound thereby. In France this doctrine of relation is carried to a very great length; for there every act of a merchant, for ten days precedent to the act of bankruptcy, is prefumed to be fraudulent, and is therefore void *. But with us the law ftands upon a more reasonable footing for, as these acts of bankruptcy may fometimes be fecret to all but a few, and it would be prejudicial to trade to carry this notion to it's utmost length, it is provided by statute 19 Geo. II. c. 32. that no money paid by a bankrupt to a bona fide or real creditor, in a course of trade, even after an act of bankruptcy done, shall be liable to be refunded. Nor, by ftatute 1 Jac. I. c. 15. fhall any debtor of a bankrupt, that pays him his debt, without knowing of his bankruptcy, be liable to account for it again. The intention of this relative power being only to reach fraudulent tranfactions, and not to diftrefs the fair trader. THE affignces may purfue any legal method of recovering this property so vefted in them, by their own authority; but cannot commence a fuit in equity, nor compound any debts owing to the bankrupt, nor refer any matters to arbitration, without the confent of the creditors, or the major part of them in value, at a meeting to be held in purfuance of notice in the gazette'. g 4 Burr. 32. h1 Atk. 262. i Viner. Abr. t. creditor and bankr.104. Sp. L. b. 29. c. 16. WHEN WHEN they have got in all the effects they can reasonably hope for, and reduced them to ready money, the affignees muft, after four and within twelve months after the commiffion iflued, give one and twenty days notice to the creditors of a meeting for a dividend or distribution; at which time they must produce their accounts, and verify them uppn oath, if required. And then the commiffioners fhall direct a dividend to be made, at fo much in the pound, to all creditors who have before proved, or fhall then prove, their debts. This dividend must be made equally, and in a ratable proportion, to all the creditors, according to the quantity of their debts; no regard being had to the quality of them. Mortgages indeed, for which the creditor has a real security in his own hands, are entirely fafe; for the commiffion of bankrupt reaches only the equity of redemption ". So are alfo perfonal debts, where the creditor has a chattel in his hands, as a pledge or pawn for the payment, or has taken the debtor's lands or goods in execution. And, upon the equity of the ftatute 8 Ann. c. 14. (which directs, that, upon all executions of goods being on any premises demised to a tenant, one year's rent and no more fhall, if due, be paid to the landlord) it hath alfo been held, that under a commission of bankrupt, which is in the nature of a ftatute-execution, the landlord fhall be allowed his arrears of rent to the fame amount, in preference to other creditors, even though he hath neglected to diftrein (a), while the goods remained on the premises; which he is otherwise entitled to do for his entire rent, be the quantum what it may ". m Finch. Rep. 465. n 1 Atk. 103, 104. (a) But this was held to be a mistake by lord chancellor Bathurst, in ex parte Devilme, 13th January 1776, where the general question was, whether a landlord is intitled to have a year's rent paid him out of the effects of a bankrupt tenant, fuch effects having been feized under the commiffion and removed by the commiffioners' meffenger from the demifed premises, in refpet whereof the rent was in arrear. The lord chancellor was clearly of opinion, upon the authority of two cafes in Atkyns's Reports, viz. ex parte Butler, affignee of Richardfon, and ex parte Plummer, that the landlord could only come in as a common creditor. That the paffage in Mr.juftice Blackstone's Commentaries (2Black.487.) was a iniftake. He faid, if the legislature had intended to prefer the landlord, they would have done fo, as they do in the infolvent debtors acts. (Vid. alio Bradyl v. Ball, 1 Brown Caf. in Chanc. 427.) BOOK II. But, otherwife, judgments and recognizances, (both which are debts of record, and therefore at other times have a priority) and alfo bonds and obligations by deed or fpecial inftrument, (which are called debts by specialty, and are usually the next in order) these are all put on a level with debts by mere simple contract, and all paid pari paffu. Nay, fo far is this matter carried, that, by the exprefs provifion of the ftatutes P, debts not due at the time of the dividend made, as bonds or notes of hand payable at a future day certain, shall be proved and paid equally with the reft, allowing a discount or drawback in proportion. And insurances, and obligations upon bottomry or refpondentia, bona fide made by the bankrupt, though forfeited after the commiffion is awarded, fhall be looked upon in the fame light as debts contracted before any act of bankruptcy 1. WITHIN eighteen months after the commiffion iffued, a fecond and final dividend fhall be made, unless all the effects were exhaufted by the firft. And if any furplus remains, after felling his eftates and paying every creditor his full debt, it fhall be restored to the bankrupt. This is a case which fometimes happens to men in trade, who involuntarily, or at leaft unwarily commit acts of bankruptcy, by abfconding and the like, while their effects are more than fufficient to pay their creditors. And, if any fufpicious or malevolent creditor will take the advantage of fuch acts, and fue out a commillion, the bankrupt has no remedy, but muft quietly submit to the effects of his own imprudence; except that, upon fatiffaction made to all the creditors, the commission may be superfeded. This cafe may also happen, when a knave is defirous of defrauding his creditors, and is compelled by a commiffion to do them that juftice, which otherwise he wanted to evade. And therefore, though the ufual rule is, that all intereft on debts carrying intereft fhall ceafe from the time of ifluing the commiflion, yet, in cafe of a furplus left after payment of every debt, fuch intereft fhall again revive, and be charge able on the bankrupt ", or his representatives. o Stat. 21 Jac. c. 19. Stra. 1211. s Stat. 5 Geo. II. c. 30. u2 Ch. Cas. 144. HERE yet remain to be examined, in the prefent TH chapter, two other methods of acquiring perfonal eftates, viz. by teftament and adminiftration. And thefe I propofe to confider in one and the fame view; they being in their nature fo connected and blended together, as makes it impoffible to treat of them diftinctly, without manifeft tautology and repetition. XI, XII. In the pursuit then of this joint fubject, I fhall, firft, inquire into the original and antiquity of teftaments and administrations; fhall, fecondly, fhew who is capable of making a last will and teftament; fhall, thirdly, confider the nature of a testament and it's incidents; fhall, fourthly, flew what an executor and administrator are, and how they are to be appointed; and, laftly, fhall felect fome few of the general heads of the office and duty of executors and administrators. FIRST, as to the original of teftaments and administrations. We have more than once observed, that when property came to be vested in individuals by the right of occupancy, it became neceffary for the peace of fociety, that this occupancy fhould be continued, not only in the prefent poffeffor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, |