*481] *part in value of the creditors who shall then have proved their debts, but may be originally appointed by the commissioners, and afterwards approved or rejected by the creditors: but no creditor shall be admitted to vote in the choice of assignees whose debt on the balance of accounts does not amount to 107. And at the third meeting, at furthest, which must be on the forty-second day after the advertisement in the Gazette, (unless the time be enlarged by the lord chancellor,) the bankrupt, upon notice also personally served upon him or left at his usual place of abode, must surrender himself personally to the commissioners; which surrender (if voluntary) protects him from all arrests till his final examination is past: and he must thenceforth in all respects conform to the directions of the statutes of bankruptcy; or, in default of either surrender or conformity, shall be guilty of felony without benefit of clergy, and shall suffer death, and his goods and estate shall be distributed among his creditors.(q) In case the bankrupt absconds, or is likely to run away, between the time of the commission issued and the last day of surrender, he may, by warrant from any judge or justice of the peace, be apprehended and committed to the county gaol, in order to be forthcoming to the commissioners, who are also empowered immediately to grant a warrant for seizing his goods and papers.(r) When the bankrupt appears, the commissioners are to examine him touching all matters relating to his trade and effects. They may also summon before them and examine the bankrupt's wife,(s) and any other person whatsoever, as to all matters relating to the bankrupt's affairs. And in case any of them shall refuse to answer, or shall not answer fully, to any lawful question, or shall refuse to subscribe such their examination, the commissioners may commit them to prison without bail till they submit themselves and make and sign a full answer: the commissioners specifying in their warrant of commitment the question so refused to be answered. And any gaoler permitting such person to escape or go out of prison shall forfeit 500l. to the creditors.(t) *482] *The bankrupt, upon this examination, is bound upon pain of death to make a full discovery of all his estate and effects, as well in expectancy as possession, and how he has disposed of the same; together with all books and writings relating thereto : and is to deliver up all in his own power to the commissioners, (except the necessary apparel of himself, his wife, and his children;) or, in case he conceals or embezzles any effects to the amount of 201., or withholds any books or writings, with intent to defraud his creditors, he shall be guilty of felony without benefit of clergy, and his goods and estates shall be divided among his creditors. (u) And, unless it shall appear that his inability to pay his debts arose from some casual loss, he may, upon conviction by indictment of such gross misconduct and negligence, be set upon the pillory for two hours, and have one of his ears nailed to the same and cut off.(v) After the time allowed to the bankrupt for such discovery is expired, any other person voluntarily discovering any part of his estate, before unknown to the assignees, shall be entitled to five per cent. out of the effects so discovered, and such further reward as the assignees and commissioners shall think proper. And any trustee wilfully concealing the estate of any bankrupt, after the expiration of two-and-forty days, shall forfeit 100l., and double the value of the estate concealed, to the creditors.(w) Hitherto every thing is in favour of the creditors, and the law seems to be pretty rigid and severe against the bankrupt; but, in case he proves honest, it makes him full amends for all this rigour and severity. For, if the bankrupt hath made an ingenuous discovery, (of the truth and sufficiency of which there remains no reason to doubt,) and hath conformed in all points to the directions of the law; and if, in consequence thereof, the creditors, or four parts in five of them in number and value, (but none of them creditors for less than 201.,) Stat. 5 Geo. II. c. 30. Stat. 5 Geo. II 30. Stat. 21 Jac. 1. c. 19. Stat. 5 Geo. II. c. 30. () Stat. o Geo. II. c. 30. By the laws of Naples, all fraudulent bankrupts, particularly such as do not surrender them selves within four days, are punished with death; also all () Stat. 5 Geo. II. c. 30. will sign a certificate to that purport; the commissioners are then to authen ticate such certificate under their hands and seals, and to transmit it to the lord chancellor; and he, or two of the judges whom he shall appoint, on oath *made by the bankrupt that such certificate was obtained without fraud, may allow the same; or disallow it, upon cause shown by any of the creditors of the bankrupt.(x) [*483 If no cause be shown to the contrary, the certificate is allowed of course; and then the bankrupt is entitled to a decent and reasonable allowance out of his effects, for his future support and maintenance, and to put him in a way of honest industry. This allowance is also in proportion to his former good behaviour in the early discovery of the decline of his affairs, and thereby giving his creditors a larger dividend. For, if his effects will not pay one-half of his debts, or ten shillings in the pound, he is left to the discretion of the commissioners and assignees to have a competent sum allowed him, not exceeding three per cent.; but if they pay ten shillings in the pound, he is to be allowed five per cent.; if twelve shillings and sixpence, then seven and a half per cent.; and if fifteen shillings in the pound, then the bankrupt shall be allowed ten per cent.; provided that such allowance do not in the first case exceed 2007., in the second 2501., and in the third 3007.(y) Besides this allowance, he has also an indemnity granted him of being free and discharged forever from all debts owing by him at the time he became a bankrupt; even though judgment shall have been obtained against him, and he lies in prison upon execution for such debts; and for that, among other purposes, all proceedings on commissions of bankrupt are, on petition, to be entered of record, as a perpetual bar against actions to be commenced on this account: though, in general, the production of the certificate, properly allowed, shall be sufficient evidence of all previous proceedings.(z) Thus the bankrupt [*484 becomes a clear man again; and, by the assistance of his allowance and his own industry, may become a useful member of the commonwealth; which is the rather to be expected, as he cannot be entitled to these benefits unless his failures have been owing to misfortunes rather than to misconduct and extravagance. For no allowance or indemnity shall be given to a bankrupt unless his certificate be signed and allowed as before mentioned; and also, if any creditor produces a fictitious debt, and the bankrupt does not make discovery of it, but suffers the fair creditors to be imposed upon, he loses all title to these advantages.(a) Neither can he claim them if he has given with any of his children above 1001 for a marriage portion, unless he had at that time sufficient left to pay all his debts; or if he has lost at any one time 5l., or in the whole 1007., within a twelvemonth before he became bankrupt, by any manner of gaming or wagering whatsoever; or within the same time has lost the value of 1001. by stock-jobbing. Also, to prevent the too common practice of frequent or fraudu lent or careless breaking, a mark is set upon such as have been once cleared by a commission of bankrupt, or have compounded with their creditors, or have been delivered by an act of insolvency: which is an occasional act, frequently passed by the legislature: whereby all persons whatsoever, who are either in too low a way of dealing to become bankrupts, or, not being in a mercantile state of life, are not included within the laws of bankruptcy, are discharged from all suits and imprisonment, upon delivering up all their estate and effects to their creditors upon oath, at the sessions or assizes; in which case their perjury or fraud is usually, as in case of bankrupts, punished with death. Persons who have been once cleared by any of these methods, and afterwards become bankrupts again, unless they pay full *fifteen shillings in the pound, are only thereby indemnified as to the confinement of their bodies; but any future Stat. 5 Geo. II. c. 30. () Stat. 5 Geo. II. c. 30. By the Roman law of cession, if the debtor acquired any considerable property subsequent to the giving up of his all, it was liable to the demands of his creditors, (Ef. 42, 3, 4;) but this did not extend to such allowance as was left to him on the score of compassion for the maintenance of himself and family. Si quid misericordiæ VOL. I.-49 [*485 causa ei fuerit relictum, puta menstruum vel annum, að mentorum nomine, non oportet propter hoc bona ejus iterate venundari: nec enim fraudandus est alimentis cottidianis Ibid. l. 6. () Stat. 5 Geo. II. c. 30. 709 estate they shall acquire remains liable to their creditors, excepting their necessary apparel, household goods, and the tools and implements of their trades.(b) Thus much for the proceedings on a commission of bankrupt, so far as they affect the bankrupt himself personally. Let us next consider, 4. How such proceedings affect or transfer the estate and property of the bank. rupt. The method whereby a real estate in lands, tenements, and hereditaments may be transferred by bankruptcy, was shown under its proper head in a former chapter. (c) At present, therefore, we are only to consider the transfer of things personal by this operation of law. By virtue of the statutes before mentioned, (d) all the personal estate and effects of the bankrupt are considered as vested, by the act of bankruptcy, in the future assignees of his commissioners, whether they be goods in actual possession, or debts, contracts, and other choses in action: and the commis sioners, by their warrant, may cause any house or tenement of the bankrupt to be broken open in order to enter upon and seize the same. And when the assignees are chosen or approved by the creditors, the commissioners are to assign every thing over to them; and the property of every part of the estate is thereby as fully vested in them as it was in the bankrupt himself, and they have the same remedies to recover it.(e) The property vested in the assignees 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 since, before his debts are satisfied or agreed for. Therefore it is usually said, that once a bankrupt and always a bankrupt; by which is meant, that a plain direct act of bankruptcy once *committed cannot be *486] purged or explained away by any subsequent conduct, as a dubious, equivocal act may be ;(f) but that, if a commission is afterwards awarded, the commission and the property of the assignees shall have a relation or reference back to the first and original act of bankruptcy.(g) Inasmuch that all transactions of the bankrupt are from that time absolutely null and void, either with regard to the alienation of his property or the receipt of his debts from such as are privy to his bankruptcy; for they are no longer his property, or his debts, but those of the future assignees. And if an execution be sued 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 he within the statutes of bankrupts ;(h) for if, after the act of bankruptcy committed, and before the assignment of his effects, an extent issues for the debt of the crown, the goods are bound thereby.(i) 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 presumed to be fraudulent, and therefore void.(k) But with us the law stands upon a more reasonable footing: for, as these acts of bankruptcy may sometimes be secret to all but a few, and it would be prejudicial to trade to carry this notion to its 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 the course of trade, even after an By the act of Congress August 19, 1841, (5 Story, 2830,) it was provided that all th property and rights of property, of every name and nature, and whether real, personal. or mixed, of every bankrupt, except as presently mentioned, who shall be declared to be a bankrupt, shall by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment, or other conveyance whatsoever. The exception referred to is necessary household and kitchen furniture, and such other articles and necessaries of the bankrupt as the assignee shall designate or set apart, having reference in the amount to the family, condition, and circumstances of the bankrupt, but altogether not to exceed in value, in any case, the sum of three hundred dollars; and also the wearing-apparel of such bankrupt, nd that of his wife and children.-SHARSWOOD. act of bankruptcy done, shall be liable to be refunded. Nor, by statute 1 Jac I. c. 15, shall any debtor of a bankrupt, that pays him his debt without know. ing of his bankruptcy, be liable to account for it again; the intention of this relative power being only to reach fraudulent transactions, and not to distress the fair trader. The assignees may pursue any legal method of recovering this property so vested in them, by their own authority; but *cannot commence a suit [*487 in equity, nor compound any debts owing to the bankrupt, nor refer any matters to arbitration, without the consent of the creditors, or the major part of them in value, at a meeting to be held in pursuance of notice in the Gazette.(1) When they have got in all the effects they can reasonably hope for, and reduced them to ready money, the assignees must, after four and within twelve months after the commission issued, give one-and-twenty days' notice to the creditors of a meeting for dividend or distribution; at which time they must produce their accounts, and verify them upon oath if required. And then the commissioners shall direct a dividend to be made, at so much in the pound, to all creditors who have before proved, or shall 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 safe; for the commission of bankrupt reaches only the equity of redemption.(m) So are also personal 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 statute 8 Anne, 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, shall, if due, be paid to the landlord,) it hath also been held that, under a commission of bankrupt, which is in the nature of a statute-execution, the landlord shall be allowed his arrears of rent to the same amount in preference to other creditors, even though he had neglected to distrein while the goods remained on the premises, which he is otherwise entitled to do for his entire rent, be the quantum what it may.(n) But, otherwise, judgments and recognizances, (both which are debts of record, and therefore at other times have a priority,) and also bonds and obligations by deed or special instrument, (which are called debts by specialty, and are usually the next *in order,) these are all put on a level with debts by mere sim[*488 ple contract, and all paid pari passu.(o) Nay, so far is this matter carried, that, by the express provision of the statute,(p) debts not due at the time of the dividends made, as bonds or notes of hand payable at a future day certain, shall be proved and paid equally with the rest, (q) allowing a discount or drawback in proportion. And insurances and obligations upon bottomry or respondentia, bona fide made by the bankrupt, though forfeited after the commis sion is awarded, shall be looked upon in the same light as debts contracted bo fore any act of bankruptcy.(r) Within eighteen months after the commission issued, a second and final divi dend shall be made, unless all the effects were exhausted by the first.(s) And if any surplus remains, after selling his estates and paying every creditor his full debt, it shall be restored to the bankrupt.(t) This is a case which sometimes happens to men in trade, who involuntarily, or at least unwarily, commit acts of bankruptcy, by absconding and the like, while their effects are more than sufficient to pay their creditors. And, if any suspicious or malevolent creaitor will take the advantage of such acts, and sue out a commission, the bankrupt has no remedy, but must quietly submit to the effects of his own imprudence; except that upon satisfaction made to all the creditors the commission may be superseded.(u) This case may also happen: when a knave is desirous of defrauding his creditors, and is compelled by a commission to do them that jus Stat. 5 Geo. II. c. 30. 1 Atk. 103, 104. (P) Stat. 7 Geo. I. c. 31. Lord Raym. 1549. Stra. 1211 Stat. 5 Geo. II. c. 30. (1) Stat. 13 Eliz. c. 7. tice which otherwise he wanted to evade. And therefore, though the usual rule is that all interest on debts carrying interest shall cease from the time of issuing the commission, yet, in case of a surplus left after payment of every debt, such interest shall again revive and be chargeable on the bankrupt(w) or his representatives. CHAPTER XXXII. OF TITLE BY TESTAMENT, AND ADMINISTRATION. THERE yet remain to be examined, in the present chapter, two other methods of acquiring personal estates,-viz., by testament and administration. And these I propose to consider in one and the same view; they being in their nature so connected and blended together as makes it impossible to treat of them distinctly without manifest tautology and repetition. XI., XII. In the pursuit, then, of this joint-subject, I shall, first, inquire into the original and antiquity of testaments and administrations; shall, secondly, show who is capable of making a last will and testament; shall, thirdly, consider the nature of a testament and its incidents; shall, fourthly, show what an executor and administrator are, and how they are to be appointed; and, lastly, shall select some few of the general heads of the office and duty of executors and administrators. First, as to the original of testaments and administrations. We have more than once observed that, when property came to be vested in individuals by the right of occupancy, it became necessary for the peace of society that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it, which introduced the doc *490] trine and practice of alienations, gifts, and contracts. But these procautions would be very short and imperfect if they were confined to the life only of the occupier; for then, upon his death, all his goods would again be come common, and create an infinite variety of strife and confusion. The law of very many societies has therefore given to the proprietor a right of continuing his property after his death in such persons as he shall name; and, in defect of such appointment or nomination, or where no nomination is permitted, the law of every society has directed the goods to be vested in certain particular individuals, exclusive of all other persons. (a) The former method of acquiring personal property, according to the express directions of the deceased, we call a testament: the latter, which is also according to the will of the deceased, not expressed indeed but presumed by the law,(b) we call in England an administration; being the same which the civil lawyers term a succession ab intestato, and which answers to the descent or inheritance of real estates. Testaments are of very high antiquity. We find them in use among the antient Hebrews; though I hardly think the example usually given(c) of Abraham's complaining(d) that, unless he had some children of his body, his steward, Eliezer of Damascus, would be his heir, is quite conclusive to show that he had made him so by will. And, indeed, a learned writer(e) has adduced this very passage to prove that in the patriarchal age, on failure of children or kindred, the servants born under their master's roof succeeded to the inheritance as heirs-at-law. (f) But (to omit what Eusebius and others have related of Noah's testament, made in writing and witnessed under his seal, whereby he disposed of the whole world)(g) I apprehend that a much more authentic instance of the early use of testaments may be found in the sacred writings,(h) () Taylor's Elem. Civ. Law, 517. (w) 1 Atk. 244. (a) Puff. L. of N. b. 4, c. 10. (0) Ibid. b. 4, c. 11. (See page 12. Selden, de succ. Ebr. c. 24. (^) Gen. xlviii. |