the drawer notice thereof; for otherwise the law will imply it paid fince it would be prejudicial to commerce, if a bill might rise up to charge the drawer at any distance of time; when in the mean time all reckonings and accounts may be adjusted between the drawer and the draweey, IF the bill be an indorsed bill, and the indorfee cannot get the drawee to discharge it, he may call upon either the drawer or the indorfor, or if the bill has been negotiated through many hands, upon any of the indorfors; for each indorfor is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorfor, as of the drawer. And if such indorfor, fo called upon, has the names of one or more indorfors prior to his own, to each of whom he is properly an indorfee, he is also at liberty to call upon any of them to make him fatisfaction; and fo upwards. But the first indorfor has nobody to resort to, but the drawer only. WHAT has been faid of bills of exchange is applicable also to promiffory notes, that are indorfed over, and negotiated from one hand to another: only that, in this case, as there is no drawee, there can be no proteft for non-acceptance; or rather, the law confiders a promiffory 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 promiffory note have the same remedy, as upon bills of exchange, against the prior indorfors, y Salk. 127. CHAPTER THE THIRTY FIRST. OF TITLE BY THE HE preceding chapter having treated pretty largely of the acquifition of perfonal property by feveral commercial methods, we from thence fhall be easily led to take into our present confideration a tenth method of transferring property, which is that of X. BANKRUPTCY; a title which we before lightly touched upon, fo far as it related to the transfer of the real eftate of the bankrupt. At present we are to treat of it more minutely, as it principally relates to the difpofition of chattels, in which the property of perfons concerned in trade more usually consists, than in lands or tenements. Let us therefore firft of all confider, r. Who may become a bankrupt: 2. What acts make a bankrupt: 3. The proceedings on a commiffion 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 beforeb defined to be "a trader, who fecretes himself, or does "certain other acts, tending to defraud his creditors." He was formerly confidered merely in the light of a criminal or offender; and in this spirit we are told by fir Edward Coked, that we have fetched as well the name, as the wickedness, Book II. of bankrupts from foreign nations. But at present the laws of bankruptcy are confidered 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 fome 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 perfon might be confined at the difcretion of his creditor, though in reality he has nothing to fatisfy the debt: whereas the law of bankrupts, taking into confideration the fudden 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 furrender up their whole eftate to be divided among their creditors. In this refpect our legislature seems to have attended to the example of the Roman law. I mean not the terrible law 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 fecando, is to be understood in fo very butcherly a light; which many learned men have with reafon doubted f. Nor do I mean those less inhuman laws (if they may be called fo, as their meaning is indifputably certain) of imprisoning the debtor's perfon in chains; fubjecting him to stripes and hard labour, at the mercy of his rigid creditor; and fometimes felling him, his wife, and children, to perpetual foreign slavery trans Tiberim: an oppreffion, which produced so many first English ftatute concerning this offence, 34 Hen. VIII. c. 4. "against "fuch perfons as do make bankrupt," is a literal translation of the French idiom, qui font banque route. e The word itself is derived from the word bancus or banque, which fignifies the table or counter of a tradefman (Dufresne. I. 969.) and ruptus, broken; denoting thereby one whofe fhop or place of trade is broken and gone; though others rather choofe to adopt the word route, which in French fignifies a trace or track, and tell us that a bankrupt is one who hath removed his banque, leav ing but a trace behind. (4 Inft. 277.) And it is obfervable that the title of the f Taylor. Comment. in L. decemviral. Bynkerfh. Obferv. Jur. I. 1. Heinecc. Antiq. III. 30. 4. g In Pegu, and the adjacent countries in Eaft India, the creditor is entitled to difpofe of the debtor himself, and likewife of his wife and children; infomuch that popular infurrections, and feceffions to the mons facer. But I mean the law of ceffion, introduced by the chriftian emperors; whereby, if a debtor ceded, or yielded up all his fortune to his creditors, he was fecured from being dragged to a gaol," omni quoque corporali cruciatu femoto." For, as the emperor justly observes i "inhumanum erat fpoliatum fortunis fuis in folidum damnari." Thus far was juft and reasonable: but, as the departing from one extreme is apt to produce it's oppofite, we find it afterwards enacted *, that if the debtor by any unforeseen accident was reduced to low circuftances, and would fwear that he had not fufficient left to pay his debts, he should not be compelled to cede or give up even that which he had in his poffeffion: a law, which under a false notion of humanity, feems to be fertile of perjury, injustice, and absurdity. THE laws of England, more wifely, have fteered in the middle between both extremes: providing at once against the inhumanity of the creditor, who is not suffered to confine an honeft bankrupt after his effects are delivered up; and at the same time taking care that all his just debts shall be paid, fo far as the effects will extend. But ftill 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; fince that set of men are, generally speaking, the only persons liable to accidental loffes, and to an inability of paying their debts, without any fault of their own. If perfons in other fituations of life run in debt without the power of payment, they must take the confequences of their own indiscretion, even though they meet with fudden accidents that may reduce their fortunes: for the law holds it to be an unjustifiable practice, for any perfon but a trader to encumber himself with debts of any confiderable value. If a gentleman, or that he may even violate with impunity the chastity of the debtor's wife: but then, by fo doing, the debt is understood to be difcharged. (Mod. Un, Hift. vii. 128.) h Ced. 7. 71. per tot. one BOOK II. one in a liberal profeffion, at the time of contracting his debts, has a fufficient fund to pay them, the delay of payment is a * species of dishonesty, and a temporary injustice to his creditor: and if, at fuch time, he has no fufficient 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 tranfactions the cafe is far otherwife. Trade cannot be carried on without mutual credit on both fides the contracting of debts is therefore here not only justifiable, but neceffary. And if by accidental calamities, as by the lofs of a fhip in a tempeft, the failure of brother traders, or by the non-payment of perfons 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 compaffionate remedy, but denied it to their faults: fince, at the fame time that it provides for the fecurity of commerce, by enacting that every confiderable 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 fhall 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. THE firft ftatute 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 ftatute 13 Eliz. c. 7. whereby bankruptcy is confined to such persons only as have used the trade of merchandize, in grofs or by retail, by way of bargaining, exchange, rechange, bartering, chevifance', or otherwise; or have fought their living by buying and felling. And by statute 21 Jac. I. c. 19. persons using the trade or profeffion of a scrivener, receiving other mens monies and estates into their trust and cuftody, are also made liable to the ftatutes of bankruptcy: and the benefits, as well as the penal parts of the law, are ex I that is, making contracts. (Dufresne, II, 569.) tended |