gaol, "omni quoque corporali cruciatu semoto." (h) For, as the emperor justly observes, (i) “inhumanum erat spoliatum fortunis suis in solidum ney under award, 3 Ves. 554. but not at suit of the crown. 2 Rose, 22. Upon escape, he may be retaken within time of privilege by the officer. 14 Ves. 36. 1 B. & A. 308. And if he be a prisoner at the time of adjudication, he is not protected against subsequent detainers, 1 Meriv. 176. 2 Rose, 343. unless the original arrest is bad. 1 Atk. 152. 4 Ves. 691. 1 Rose, 262. Buck. 521. overruling 2 B. & A. 743. Being at large on bail, is not being in custody, within the act. 1 G & J. 264. He may be surrendered by bail within time of privilege, 1 Atk. 328.; but court will enlarge the time to surrender in discharge of bail, and stay proceedings in inean time, to finish examination. 3 East, 145. 1 Taunt. 320. 1 Price, 74. And he is at all times privileged from arrest, when attending a summons of the commissioners. 8 T. R. 534. 1 Rose, 260. 15 Ves. 117. All persons attending commissioners are privileged from arrest, evndo morando et redeundo. The proper mode, in case of arrest, is to apply to the chancellor by motion, 11 Ves. 556. 16 Ves. 413.; not to the court out of which the process issued, 4 T. R. 377.; but see Tidd, 100. n. a.; nor to the commissioners. Blk. Rep. 1142. The party may proceed against the officer and solicitor for a contempt, 1 Atk. 54.7 Ves. 312.; and the costs of the application for discharge are of course. 1 V. & B. 316. Where the crown is the credi tor arresting, the order of discharge must be upon the gaoler. 1 Rose, 278. If there are other detainers, the court must hear the persons by whom they are lodged, for the purpose of ascertaining whether they are founded on the original arrest. 7 Ves. 312. As to Staying the Certi ficate. If a petition be presented against the certificate on or before the day named for the allowance, it is stayed, and the petition set down to be heard in the usual course, Co. B. L. 442. ; but the court will not extend the time. 1 Madd. 111. 1 G. & J. 352. The petition must be personally served on the bankrupt two clear days before the petition day, Buck, 38. 2 J. & W. 220. 1 G. & J. 63. ; or an order obtained for constructive personal service. 1 G. & J. 71. If the order, on hearing such petition, be not taken from the office within three months from its being made, the certificate is to be laid before the chancellor for allowance. Reg. Gen. Recalling Certificate.-Applications for this purpose are not favoured, 1 G. & J. 219. Buck. 430. 6 Ves. 614.; but the recall has been made for gaming. See 2 Rose, 187. n. In one case, after the bankrupt had been in possession of his certificate two years, 19 Ves. 260. 2 Rose, 186; in another, three years. Í Ba. & Be. 321. Effect of the Certificate.-The only exception to the rule, that all debts, &c. proveable are barred by the certificate is, that of a debt due to the crown. 1 Atk. 262. Bunb. 202. But there are many debts not proveable which are barred. See Cullen, 392. De Tastet v. Sharpe, 3 Madd. 51. Buck, 153. Where the certificate is allowed before his bail are fixed, they are discharged by it; but if they are fixed before the allowance, they are not discharged, but a new debt arises against them. Burr. 244. 436. Blk. R. 811. 14 East, 599. 7 Taunt. 589. Tidd Prac. 280. 1 B. & A. 332. Bail in error are not discharged by the certificate of their principal, though obtained pending the writ of error. 1 T. R. 624. Cowp. 823. The debt which entitles a creditor to sign the certificate, must be such as would entitle him to a dividend; therefore a creditor upon a judgment to indemnify, not damnified, is not entitled to sign. Co. B. L. 439. One partner may sign for all. 14 Ves. 597. 17 ib. 62. 1 Rose, 3. So of executors. 5 Ves. 839. But not so of trustees, 2 Rose, 224. 19 Ves. 463.; nor assignor of his debt, without consent of assignee. 1 G. & J. 399. A creditor, who is also executor of another creditor, can only sign once. 1 Atk. 85. 1 Rose, 66. A receiver may prove, but not sign, the certificate. 1 Mont. Dig. 332. 1 G. & J. 151. Creditors cannot be compelled to sign. 18 Ves. 342. 1 V. & B. 47. 1 Rose, 189. 3 V. & B. 103. The commissioners' signing and sealing must be attested in writing, upon the certificate, by the solici tor, or his clerk, or a clerk of the commissioners, or the messenger. Where one partner of a bankrupt firm died, without making the affidavit of conformity, notice has been ordered to be given for allowance, as to the survivor. 10 Ves. 51. 1 G. & J. 248. As to effect of Certifi cate on a Debt contracted in a Foreign Country.-A discharge of a debt in the country where it was contracted, is a discharge here, Stra. 732. 2 Eq. Ab. 524. Buck, 63.; as by a certifi cate under an Irish commission, Co. B. L. 464; so an American, 5 East, 123. But a certificate, under an English commission, is no bar to a debt contracted in a foreign country, nor a foreign certificate to a debt contracted here. Co. B. L. 465. Beawes Lex Merc. 4 ed. 543. 1 East, 6. 2 Bell. Com 693. Cullen, 398. A debt for goods consigned by a Scotch merchant to an English one, is a Scotch debt; and an accommodation bill of exchange drawn in Ireland, and accepted and paid in England, is an English debt. 4 B. & A. 654. The only question in these cases is, in what country the debt was contracted. See also Buck, 57. Discharge on Motion. -The court will not discharge without giving time to the party arresting, to shew that the certificate was fraudulently obtained. 2 H. B. 553. 1 B. & B. 13. 3 Moore, 244. 5 ib. 331. 2 Chit. Rep. 53. 55. and will upon application direct an issue, where necessary. 2 B. & P. 390. Tidd Prac. 215. And if the arrest be on a bill of exchange, and the bankrupt has described himself of a place to which he never belonged, and the plaintiff never knew of the commission till the writ issued, it will not discharge the bankrupt. Bl. Rep. 725. But an imputation of fraud, without stating particulars, will not prevent the discharge. 5 Moore, 21. See 1 B. & P. 427. Compositions contemplated by the statute are such as would admit all the creditors of the party joint and several, 15 East, 619. though some do not come in. 1 1 M. & S. 182. Supersed 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 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 unjustifiable practice, for any person but a trader to incumber himself with debts of any considerable va lue. If a gentleman, or one in a liberal profession, at the time of [474] 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 carried on without mutual credit on both sides: the contracting of debts is therefore here not only justifiable, but necessary. 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. k Nov. 135. c. 1. ing prior commission does not take it out of the statute, Cul 394 Doug. 46. nor it seems payment in full, under a composition. 3 M. & S. 78. Every thing done under a commission becomes void by a supersedeas, 8 Ves. 534.; the certificate, 1 Atk. 145.; sales approved by all the creditors, unless the bankrupt has con firmed them. 19 Ves. 204. 8 ib. 533. 10 ib. 104. Buck, 67. 262. n. but see sec. 87. The bankrupt cannot petition to supersede till he has surrendered. 7 Ves. 405. 8 Ves. 328. 11 ib. 409. 1 G. & J. 387; and see as to the practice in these cases, Buck, 220 493. 1 G. & J. 23. 326. 2 Rose, 178. 235. 1 Madd. 67. 371. 624. 18 Ves. 209. 1 V. & B. 220. Where the bankrupt's petition is unsuccessful, the costs of the other party are payable out of the estate. Rose, 45 Madd. 91. The bankrupt may be restrained, after having repeatedly questioned the commission, or after acquiescence and delay, from further disputing it at law. 18 Ves. 299. 393. Buck, 90. 1 S. & S. 408. 1 G. & J. 300, but see Buck, 273. No commission can be superseded on the ground of consent of all the creditors, until after the second meeting, nor before the first meeting, with the consent of the petitioning creditor. 4 Madd. 273. Chitty. 2 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, rechange, bartering, chevisance, () or otherwise; or have sought their living by buying and selling. And 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 [475] extended as well to aliens and denizens as to natural-born subjects; being intended entirely for the protection of trade, in which aliens are often as deeply concerned as natives. 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 100/.; or of two, to whom he is indebted 150l.; or of more, to whom altogether he is indebted 2001. 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 statute themselves, or to entitle the creditors, for the benefit of public commerce, to demand the distribution of their effects. In the interpretation of these several statutes, it hath been held, [476] that buying only, or selling only, will not qualify a man to 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 chapman, 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 necesary 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. (g) 3 Also an innkeeper cannot, as such, be a bankrupt; (r) for his gain or livelihood m § 39. n § 40. 4 1 That is, making contracts. (Dufresne, II. 569.) (3) And see 6 Geo. IV c. 16. s. 2. ante 471. note.. (4) But see 6 Geo. IV. c. 16. sect. 2. ante 471. note. r Cro. Car. 549. Skinn. 291. 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 shoemakers, 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: (t) 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; 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 selling under particular restraints, or for particular purposes; as if a com[477] missioner of the navy uses to buy victuals for the fleet, and dis pose of the surplus and refuse, he is not thereby made a trader within the statutes. (w) An infant, 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. (1) But a feme-covert in London, being a sole trader according to the custom, is liable to a commission of bankrupt. (y) 5 6 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. "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 such a trader, as is before described, hath endeavoured to avoid his creditors, or evade their just demands, this hath been declared by the legislature to be an act of bankruptcy, upon which a commission may be sued out. For in this extrajudicial method of proceeding, which is allowed merely for the benefit of commerce, the law is extremely watchful to detect a man, whose circumstances are declining, in the first instance, or at least as early as possible: that the creditors may receive as large a proportion of their debts as may be; and that a man may not go on wantonly wasting his substance, and then claim the benefit of the statutes, when he has nothing left to distribute. To learn what the particular acts of bankruptcy are, which render a man a bankrupt, we must consult the several statutes, and the resolu[478] tions formed by the courts thereon. Among these may therefore be reckoned, 1. Departing from the realm, whereby a man withdraws himself from the jurisdiction and coercion of the law, with intent to t Cro. Car. 31. Skinn. 292. x Lord Raym. 443. s Skinn. 292. S Mod. $50. (5) See further who cannot be a bankrupt, ante 471. note. 7 8 defraud his creditors. (2) 2. Departing from his own house, with intent to secrete himself, and avoid his creditors. (a) 3. Keeping in his own house, privately, so as not to be seen or spoken with by his creditors, except for just and necessary cause; which is likewise construed to be an intention to defraud his creditors, by avoiding the process of the law. (b) 4. Procuring or suffering himself willingly to be arrested, or outlawed, or imprisoned, without just and lawful cause; which is likewise deemed an attempt to defraud his creditors. (c) 5. Procuring his money, goods, chattels, and effects to be attached or sequestered by any legal process; which is another plain and direct endeavour to disappoint his creditors of their security. (d) 6. Making any fraudulent conveyance to a friend, or secret trustee, of his lands, tenements, goods, or chattels : which is an act of the same suspicious nature with the last. (e) 7. Procuring any protection, not being himself privileged by parliament, in order to screen his person from arrests; which also is an endeavour to elude the justice of the law. (ƒ) 8. Endeavouring or desiring, by any petition to the king, or bill exhibited in any of the king's courts against any creditors, to compel them to take less than their just debts; or to procrastinate the time of payment originally contracted for; which are an acknowledgment of either his poverty or his knavery. (g) 9. Lying in prison for two months, or more, upon arrest or other detention for debt, without finding bail, in order to obtain his liberty. (h) For the inability to procure bail, argues a strong deficiency in his credit, owing either to his suspected poverty, or ill character; and his neglect to do it, if able, can arise only from a fraudulent intention; in either of which cases it is high time for his creditors to look [479] to themselves, and compel a distribution of his effects. 10. Escaping from prison after an arrest for a just debt of 100l. or upwards. (¿) 10 For no man would break prison that was able and desirous to procure bail; which brings it within the reason of the last case. 11. Neglecting to make satisfaction for any just debt to the amount of 100l. within two months after service of legal process, for such debt, upon any trader having privilege of parliament. (k)" These are several acts of bankruptcy, expressly defined by the statutes relating to this title: which being so numerous, and the whole law of bankrupts being an innovation on the common law, our courts of justice have been tender of extending or multiplying acts of bankruptcy by any construction, or implication. And therefore sir John Holt held, (1) that a man's removing his goods privately to prevent their being seized in execution, was no act of bankruptcy. For the statutes mention only fraudulent gifts to third persons, and procuring them to be seized by sham process in order to defraud creditors: but this, though a palpable fraud, yet falling within neither of those cases, cannot be adjudged an act of bankruptcy. So also it has been determined expressly, that a banker's stopping or refusing payment is no act of bankruptcy; for it is not within the description of any (7) Or remaining out of realm with intent, &c. 6 Geo. IV. c. 16. s. 3. See ante 471. note. (8) Or gift of delivery, see further, 6 Geo. IV. c. 16. s. 3. ante 471. note. (9) Now reduced to twenty one days, 6 Geo. IV. c. 16. s. 5. (10) Or for any debt, 6 Geo. IV. c. 16. s. 5. (11) See further, 6 Geo, IV. c. 16. s. 9, 10, 11. ante 471, note 1. A written declaration of insolvency is also made an act of bankruptcy under certain regulations, id. sect. 6. |