fifteen fhillings in the pound, are only thereby indemnified as to the confinement of their bodies; but any future estate they shall acquire remains liable to their creditors, excepting their neceffary 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 estate and property of the bankrupt. The method whereby a real estate, in lands, tenements, and hereditaments, may be transferred by bankruptcy, was shewn under it's proper head in a former chapter. At present therefore we are only to confider the transfer of things personal 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 seise 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 vested in them, as it was in the bankrupt himself, and they have the fame remedies to recover it 3. THE property vested 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 satisfied or agreed for. Therefore it is usually faid, that once a bankrupt, and always a bankrupt : by which is meant, that a plain direct act of bankruptcy once $ 12 Mod. 324. pag. 285. BOOK II. committed cannot be purged, or explained away, by any subfequent conduct, as a dubious equivocal act may be; but that, if a commiffion is afterwards awarded, the commiffion and the property of the affignees fhall have a relation, or reference, 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 those of the future affignees, And, if an execution be fued out, but not ferved and executed on the bankrupt's effects till after the act of bankruptcy, it is void as against the affignees. 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 stands upon a more reasonable footing for, as thefe 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 ftatute 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, fhall 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 affignees may pursue any legal method of recovering this property so vested in them, by their own authority; but ↑ Salk. 110 น 4 Burr. 32. Atk. 262, x Viner. Abr. t. creditor, and bankr. 104. y Sp. L. b. 29. c. 16. cannot 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 pursuance of notice in the gazette. WHEN they have got in all the effects they can reasonably hope for, and reduced them to ready money, the affignees muft, within twelve months after the commiffion iffued, give one and twenty days notice to the creditors of a meeting for a dividend or diftribution; at which time they must produce their accounts, and verify them upon 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 fecurity 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 shall, if due, be paid to the landlord) it hath also been held, that under a commiffion of bankrupt, which is in the nature of a statute-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, while the goods remained on the premises: which he is otherwise entitled to do for his intire rent, be the quantum what it may". 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 inftrument (which are called debts by specialty, and are ufually the next z Finch. Rep. 456. Gg 4 a 1 Atk. 103, 104. in in order) these are all put on a level with debts by mere fimple contract, and all paid pari paffu. Nay, fo far is this matter carried, that, by the exprefs provifion of the ftatutes, debts not due at the time of the dividend made, as bonds or notes of hand payable at a future day, shall be paid equally with the reft, allowing a discount or drawback in proportion. And infurances, and obligations upon bottomry or refpondentia, bona fide made by the bankrupt, though forfeited after the commiffion is awarded, shall be looked upon in the same light as debts contracted before any act of bankruptcy. WITHIN eighteen months after the commiffion iffued, a fecond and final dividend shall be made, unless all the effects were exhausted by the firft. And if any furplus remains, after paying every creditor his full debt, it shall be restored to the bankrupt. This is a cafe which fometimes happens to men in trade, who involuntarily, or at least unwarily, commit acts of bankruptcy, by abfconding and the like, while their effects are more than sufficient to pay their creditors. And, if any fufpicious or malevolent creditor will take the advantage of fuch acts, and fue out a commiffion, the bankrupt has no remedy, but muft quietly fubmit to the effects of his own imprudence; except that, upon fatisfaction made to all the creditors, the commiffion may be fuperfeded. This case may alfo happen, when a knave is defirous of defrauding his creditors, and is compelled by a commiffion to do them that justice, which otherwife he wanted to evade. And therefore, though the usual rule is, that all interest on debts carrying interest shall ceafe from the time of iffuing the commiffion, yet, in cafe of a furplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt“, or his representatives. b Lord Raym. 1549. dr Atk, 244. CHAPTER THE THIRTY SECOND. OF TITLE BY TESTAMENT, AND ADMINISTRATION. ΤΗ HERE yet remain to be examined, in the present chapter, two other methods of acquiring perfonal eftates, viz. by teftament and adminiftration. And these I propose to confider in one and the same view; they being in their nature fo connected and blended together, as makes it impoffible to treat of them distinctly, without manifeft tautology and repetition. XI, XII. In the pursuit then of this joint subject, I fhall, firft, enquire 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 teftament and it's incidents; fhall, fourthly, fhew 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 teftaments and adminiftrations. We have more than once obferved, 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 should be continued, not only in the present poffeffor, but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, gifts, and |