household goods or the like, will not prevent the assignment being an act of bankruptcy. 2 Black. Rep. 996. 1 Black. Rep. 362. But an assignment by deed of only part of a trader's effects to a fair creditor, will notwithstanding, if done in contemplation of committing an act of bankruptcy, itself become the very act. 1 Cooke's B. L. 115. 10. Also by the stat. 21 Jac. 1, c. 19. those who shall procure any protection, other than such as shall be lawfully protected by privilege of parliament, will thereby commit an act of bankruptcy.' For this is an endeavour to elude the justice of the law. 2 Black. Com. 478. But if any one be protected, as the king's servant, it does Not make him bankrupt. Skin. 21. And it is declared by 7 Ann, c. 12. that no trader who shall put himself into the service of any ambassador, or public minister, shall have any privilege from arrest. s. 5. 11. Likewise by the same stat. 21 Jac. 1. c. 19..if he exlabit unto his majesty, or his courts, any petition or bill against his creditors, to compel them to accept less than their just debts, or to procure longer time of payment than was given by the original contract, this will be an act of bankruptcy. For these are an acknowledgment either of his poverty or knavery. 2 Black. Com. 478. 12. And by the same stat. 21 Jac. 1. c. 19. if he being arrested for debt, he shall after his arrest lie in prison two months or more, upon that or any other arrest or detention in prison for debt, he shall be adjudged a bankrupt from the time of the first arrest. But the arrest must be lawful: and therefore an arrest by an executor, before probate, is not within the act. 3 Levinz 58. And being arrested does not make an act of bankruptcy: the presumption of insolvency arises from lying in prison two months, without being able to get bail; 1 Cooke 12. And if mere formal bail be put in for the purpose of changing from one custody to another; as if a man being arrested be bailed, and immediately turned over to the King's Bench or like prison, where he lies two months; here the act of bankruptcy will bear relation to the first arrest. Ibid. But where bail is really put in, the bankruptcy only relates to the time of the surrender. Ibid. And lying in prison two lunar months, makes the party bankrupt from the arrest, and though the commission is taken out before the two months is expired, yet if the party appears to be bankrupt, by relation to a time before the suing it out, it is sufficient. Beawes Lex. Mer. Red. 489. Also by the said stat. 21 Jac. 1. c. 19, if being arrested for Preferring pe 100l. he shall after such arrest, escape out of prison, he shall be adjudged a bunkrupt. But the act clearly intends such an escape as shews he means to run away, and thereby to defeat his creditors *: it must be an escape against the will of the sheriff; for a man shall not be made a criminal, when he has not the least criminal intention to disobey any law. 1 Burrows 439. 14. And by 5 Geo. 2. c. 30. if any bankrupt, after issu titioning credi-ing any commission, shall pay to the person who sued out the same, or otherwise give goods or other satisfaction or security 'for his debt, whereby such person shall privately receive more for after commission sued out. Members of parliament. Whether an act in the pound, in respect of his debt, than the other creditors, 'the same shall be such an act of bankruptcy, whereby, on good proof thereof, such commission shall be superseded; and the lord chancellor may award to any creditor petitioning another commission; and the person so compounding shall lose 'his whole debts and deliver up to the new commissioners all he 'shall have so received,for the use of the other creditors.' s. 24. 15. By 4 Geo. 3. c. 33. Any creditor, whose debt shall 'amount to 100%. or two or more whose debts amount to 150%; ' or three or more to 2001. of any trader having privilege of 'parliament, upon affidavit made and filed on record in any 'court at Westminster, that such debt is justly due, and that such debtor, as they verily believe, is a merchant, banker, ✦ broker, scrivener, or trader, within the statutes of bank. ruptcy, may sue out a summons, or an original bill and summons, against such person,and serve him with a copy thereof. And if he shall not within two months after personal service pay, secure, or compound for such debt, or enter into a bond in such sum, and with two such sureties as any of the judges shall approve of, to pay such sum as shall be recovered in such action, together with costs, he shall be adjudged a bankrupt from the time of the service of such summons. Ibid. And the creditors may proceed against him as other bank. rupts. Ibid. But this shall not subject such privileged persons, during the time of such privilege, to be arrested, except in cases made felony by any of the statutes of bankruptcy. Ibid. An act of bankruptcy, if once plainly committed, can never of bankruptcy be purged, even though the party continues to carry on a great trade. 1 Salk. 110. 1 Cooke's B. L. 129. away. But if the act was doubtful, then circumstances may explain the intent of the first act, and shew it not to have been done with a view to defraud creditors. 1 Salkeld, 110. 1 Cooke's B. L. 129. Not where an officer goes with his prisoner into a different county, there permitting him to call upon an attorney, and from whence he is afterwards carried to a judge's chambers under an habeas corpus. For the acts must be done to defraud and delay creditors from recovering their just debts. 1 Salkeld 110. But if after a plain act of bankruptcy, a man pays off, and compounds with all his creditors, he becomes a new man. 1 Salkeld 110. 1 Cooke's B. L. 129. And no commission of bankrupts shall be avoided by reason of any prior act of bankruptcy being committed,before the contraction of any debt due to a petitioning creditor. 46 Geo. 3. 4. 135. s. 5. III. The commission and manner of obtaining it. By 13 Eliz. c. 7, The lord chancellor, or lord keeper, Commissioners. may, by commission under the great seal, appoint such persons as to him shall seem good, who shall take order for the bank'rupt's body, lands, and goods.' s. 2. By 7 Geo. 1. c. 31. Every person who shall give credit on securities payable at future days to bankrupts, not due before the time of their becoming bankrupt, shall be admitted to prove their securities, and have a dividend in proportion 'to the other creditors, discounting 51. per cent. per ann. from 'the actual payment to the time such money would have become due.' And by 5 Geo. 2. c. 30. Such creditors may petition for a commission, or join in petitioning. s. 22. But a judgment creditor, who has taken his debtor in execution, cannot afterwards sue out a commission of bankrupt against him for the same debt *. 8 Ter. Rep. 123. And no commission shall be issued against any person on the petition of one or more creditors, unless the single debt of the creditor, or of two or more creditors being partners, amount to 1001.; or unless the debt of two creditors amount to 1501.; or three or more to 2001.; 5 Geo. 2. c. 30. s. 23. And the creditor petitioning shall make oath or affirmation be fore a master in chancery of the truth of the debt, and give 2001. bond to the lord chancellor for proving the debt, as well before the commissioners as upon a trial at law if the due issuing a commission shall be contested, and also for proving the party a bankrupt; and further to proceed on such commission. Ibid. And if such debt shall not be really due, or if after such commission taken out, it cannot be proved that the party was a bankrupt, then the lord chancellor, on petition of the party grieved, shall order satisfaction to be made for the damages sustained; and in case there be occasion, assign such bond to the party, who may sue for the same in his own name. Ibid. However, this does not take away the common law remedy by an action for damages; but the party may proceed at law, * But the other creditors may,if he lie in prison two mouths on this former execution, Bankrupt dying. Joint traders. to obtain such redress as a jury think he is intitled to. But where a party elects to abide by the remedy afforded by the sta tute, he must petition the chancellor to have the bond assigned to him. It is however in the breast of the court, where the bankruptcy is a doubtful case, and the commission superseded, either to direct an enquiry before a master of the damages sustained by the bankrupt,or a quantum damnificatus upon an issue at law; and after the damages are settled, the court may, for the better recovery thereof, order the bond to be assigned; but where the case is attended with any flagrant circumstances, the bond would be immediately assigned without further inquiry. 3 Burrows 1418. 1 Atk. 144. And the creditors who sue out the commission shall prosecute the same at their own expence, until assignees be chosen ; and the commissioners shall at the meeting for choosing assignees, ascertain such costs, and by writing under their hands, order the assignees to reimburse the same out of the first effects, that shall be got in. 5 Geo. 2. c. 30. s. 25. If more than two of the commissioners die, or if the commission is lost, it must be renewed; and the commissioners under the renewed commission proceed from that step which was left incomplete by the former. 1 Cooke's B. L. 9. But no commission shall abate by the death of the king, and if it be necessary to renew any commission by reason of the death of the commissioners, or any other cause, it shall be renewed: and but half the fees paid. 5 Geo. 2. c. 30, 8. 45. A commission is a statute execution, and after a trader is declared a bankrupt, his death will not prevent further proccedings; but if in a joint commission one of the parties is dead, at the time of suing it out, it is void: and where a joint commission is prosecuted, all the partners must be included; for a joint commission against two of several partners cannot be sustained. 1 Vern. 153. 1 Atk. 97. It was formerly the practice, where there were several partners to take out separate commissions against each, as well as a joint commission; but this has been discountenanced, it being the common course of the court, upon petition to make an order for the separate creditors to come in and prove their debts under the joint commission, and that the assignees keep distinct accounts of the several estates. 1 Cooke's B. L. 7. He who has the body in execution cannot be a petitioning cre. ditor, and if a commission issues in that case, it may be superseded. Strange 653. Nor has the petitioning creditor the ordinary election to sue at law, or come in, under the commission; for if he were to elect to proceed at law, the commission must be superseded, which would affect the other creditors who had proved. 1 Atk. 154. IV. The power of the commissioners. If after any commission sued forth and dealt in by the com- Bankrupt missioners, the offender happen to die, the commissioners shall dying. proceed, as if the party were living. 1 Jac. 1. c. 15. s. 17. And the commissioners are to administer an oath to each other, that they will faithfully, impartially, and honestly, according to the best of their skill and knowledge, execute the powers reposed in them. 5 Geo. 2. c. 30. s. 43, 44. Which commissioners shall have power to take such order Power over with the lands of such bankrupt, as well copy or customary bankrupt's efhold, as freehold, which he had in his own right before he be, fects. came a bankrupt; or which he purchased jointly with his wife or child to the only use of such bankrupt, or for such use or interest as he may lawfully part with; or with any person of trust to any secret use of such bankrupt, and also with all his money, goods, chattels, wares, merchandises, aud debts; and cause all the same to be searched, viewed, sold, and appraised to the best value they may. 15 Eliz. c. 7. s. 2. And it shall be lawful for the commissioners, or any other To break doors. persons by them to be appointed, by their warrant, under their hands and seals, to break open the houses, chambers, shops, warehouses, doors, trunks, or chests of the bankrupt, where the said bankrupt, or any of his goods or estate shall be reputed to be, and to seize upon, and order the body, goods, money, and other estate of such bankrupt, by impri sonment or otherwise. 21 Jac. 1. c. 19. s. 8. ed. Upon certificate under the hauds and scals of the commis- Bankrupt being sioners, that such commission is issued, and such person proved declared may before them to become bankrupt, any of the justices of the be apprehendKing's Bench, or Common Pleas, or barous of the exchequer and the JUSTICES OF PEACE; and they are required, upon application made, to grant their warrants (1) for apprehending Monmouthshire, to wit. (I) The form of such warrant. To the constable of in the said county, and to the keeper of the common gaol, at in the said county. WHEREAS a certificate under the hands and seals of being the major part of the commissioners named and autho- hath been proved before them the said commis |