Beside 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 idemnity 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 1007. 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, 100%., 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 100%. by stock-jobbing. (10) Also to prevent the too common practice of frequent and fraudulent 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, fre

(10) The act of congress of March 2, 1867, s. 29, provides that "No discharge shall be granted, or, if granted, shall be valid, if the bankrupt has willfully sworn falsely in his affidavit annexed to his petition, schedule or inventory, or upon any examination in the course of the proceedings in bankruptcy, in relation to any material fact concerning his estate or his debts, or to any other material fact; or if he has concealed any part of his estate or effects, or any books or writings relating thereto, or if he has been guilty of any fraud or negligence in the care, custody or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, excepting such property as he is permitted to retain under the provisions of this act, or if he has caused, permitted or suffered any loss, waste or destruction thereof; or if, within four months before the commencement of such proceedings, he has procured his lands, goods, moneys or chattels to be attached, sequestered or seized on execution; or if, since the passage of this act, he has destroyed, mutilated, altered or falsified any of his books, documents, papers, writings or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document, with intent to defraud his creditors; or has removed, or caused to be removed, any part of his property from the district, with intent to defraud his creditors; or if he has given any fraudulent preference contrary to the provisions of this act, or made any fraudulent payment, gift, transfer, conveyance or assignment of any part of his property, or has lost any part thereof in gaming, or has admitted a false or fictitious debt against his estate, or if, having knowledge that any person has proved such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowledge; or if, being a merchant or tradesman, he has not, subsequently to the passage of this act, kept proper books of account; or if he, or any person in his behalf, has procured the assent of any creditor to the discharge, or influenced the action of any creditor at any stage of the proceedings by any pecuniary consideration or obligation; or if he has, in contemplation of becoming bankrupt, made any pledge, payment, transfer, assignment or conveyance of any part of his property, directly or indirectly, absolutely or con ditionally, for the purpose of preferring any creditor or person having a claim against him or who is or may be under liability for him, or for the purpose of preventing the property from coming into the hands of the assignee, or of being distributed under this act in satisfaction of his debts; or if he has been convicted of any misdemeanor under this act, or has been guilty of any fraud whatever, contrary to the true intent of this act and before any discharge is granted, the bankrupt shall take and subscribe an oath to the effect that he has not done, suffered, or been privy to, any act, matter or thing specified in this act as a ground for withholding such discharge, or as invalidating such discharge if granted."

:

As to impeaching the discharge, sce the treatise of Avery and Hobbs, and of Gazzam on the Bankrupt Law, and the digest of cases in bankruptcy in American Law Review.

quently 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 [*485] 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 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 a bankrupt himself personally. Let us next consider,

4. How such 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 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 commissioners by their warrant may cause any house or tenement of the bankrupt to be broke 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 purged,

[*486] 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) Insomuch 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 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 is 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 a course of trade, even after an 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 knowing of his

(c) Page 285.

() Salk. 110.

(b) Stat. 5 Geo. II, c. 30.
(d) Stat. 1 Jac. I, o. 15. 12 Jac. I, c. 19.
(e) 12 Mod, 324.
(g) 4 Burr. 32.
(h) 1 Atk, 202.
(4) Viner Abr. tit. Creditor & Bankrupt, 104. (k) Sp. L. b. 29, c. 16.

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. (11)

The assignees may pursue any legal method of recovering this property so vested in them, by their own authority; but *cannot commence a suit in equity, nor compound any debts owing to the bankrupt, nor refer any [ *487] 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. (7) (12)

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 a 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 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 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 hath neglected to distrain, 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 simple contract, and all paid pari passu. (0) Nay, so far [*488] is this matter carried, that, by the express provision of the statutes, (p) debts not due at the time of the dividend 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 commission is awarded, shall be looked upon in the same light as debts contracted before any act of bankruptcy. (r) (13)

(1) Stat. 5 Geo. II, c. 30, (p) Stat. 7 Geo. I, c. 31.

(m) Finch, Rep. 466. (n) 1 Atk. 103, 104.
(q) Lord Raym. 1549. Stra. 1211.

(0) Stat. 21 Jac. I, c. 19, (r) Stat. 19 Geo. II, c. 32.

(11) By the act of congress of March 2, 1867, the assignment conveys to the assignee all the estate of the bankrupt, with his deeds, books and papers relating thereto, and the assignment relates back to the commencement of the proceedings, but dissolves all attachments of any of the property made on mesne process within four months previous to the commencement of the proceedings. Property conveyed by a debtor, in fraud of creditors, will pass by the assignment. Sec. 14.

(12) Under the English statutes authority for these purposes is obtained by the assignee from the court. And under the act of congress of 1864 the assignee may submit matters to arbitration by leave of the court. Sec. 17.

(13) Under the bankruptcy laws of the United States the following demands are preferred:

1. The fees, costs, &c., of the proceedings.

2. All demands owing to the United States.

3. All demands owing to the state in which the proceedings are had.

4. Wages due to any operative, clerk or house servant to an amount not exceeding fifty

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Within eighteen months after the commission issued, a second and final dividend 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. (f) 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 creditor 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 justice, 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 doctrine and practice of alienations, *gifts and contracts. But these [*490 ] precautions 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 become 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 (8) Stat. 5 Geo. II, c. 30. (u) 2 Ch. Cas. 144.

(t) Stat. 13 Eliz. c. 7.

(2) 1 Atk. 244.

dollars, for labor performed within six months next preceding the first publication of the notice of proceedings in bankruptcy.

5. All other debts, which by the laws of the United States are or may be entitled to priority, in like manner as if the act had not passed. Sec. 28.

Other demands are paid ratably, except that specific liens are not disturbed or divested, unless where created in contemplation of bankruptcy, or in fraud of the law.

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 ancient 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) wherein Jacob bequeaths to his son Joseph a portion of his *inheritance double to that [ *491] of his brethren: which will we find carried into execution many hundred years afterwards, when the posterity of Joseph were divided into two distinct tribes, those of Ephraim and Manasseh, and had two several inheritances assigned them; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens; (i) but in many other parts of Greece they were totally discountenaced. (k) In Rome they were unknown till the laws of the twelve tables were compiled, (1) which first gave the right of bequeathing: (1) and, among the northern nations, particularly among the Germans, (m) testaments were not received into use. And this variety may serve to evince, that the right of making wills and disposing of property after death, is merely a creature of the civil state; (n) which has permitted it in some countries and denied it in others: and, even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven. (0)

With us in England, this power of bequeathing is coeval with the first rudiments of the law: for we have no traces or memorials of any time when it did not exist. Mention is made of intestacy, in the old law before the conquest, as being merely accidental; and the distribution of the intestate's estate, after payment of the lord's heriot, is then directed to go according to the established law. "Sive quis incuria, sive morte repentina, fuerit intestatus mortuus, dominus tamen nullam rerum suarum partem (præter eam quæ jure debetur hereoti nomine) sibi assumito. Verum possessiones uxori, liberis, et cognatione proximis, pro suo cuique jure, distributanur." (p) But we are not to imagine, that this power of bequeathing extended originally to all a man's personal estate. On the contrary, Glanvil will inform us, (q) that by the common law, *as it stood in the reign of Henry the Second, a man's goods were to be divided [*492] into three equal parts: of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal: or, if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but, if he died without either wife or issue, the

(a) Puff. T.. of N. b. 4. c. 10.

(b) Ibid. b. 4, c. 11.

(c) Barbeyr. Puff. 4. 10, 4. Godolph. Orph. Leg. i, 1.
(e) Taylor's Elem. Civ. Law, 517.
(h) Gen. c. 48.

(d) Gen. c. 15. (f) See page 12. (g) Selden, de succ. Ebr. c. 24. (i) Plutarch. in vita Solon. (k) Pott. Antiq. l. 4, c. 15. (1) Inst. 2, 22, 1. (m) Tacit. de mor. Germ. 21. (n) See page 13. (0) Sp. L. b. 27, c. 1. Vinnius in Inst. l. 2, tit. 10. (p) LL. Canut. c. 68. (q) L. 2, c. 5.

(1) Mr. Chitty questions this quoting of Vinnius. lib. 2, tit. 10, and the commentary thereon by Heineccius. See also Maine's Ancient Law, ch. VI.