day when the purchase is to be completed. Indulgence, I am aware, is often given for the purpose of procuring pro bates of wills, letters of administration, and acts of parliament. But this indulgence is voluntary on the part of the intended purchaser; it is the duty of the seller to be ready to verify his abstract at the day, on which it was agreed, that the purchase should be completed. If the seller deliver an abstract, setting forth a defective title, the plaintiff may object to it. No man was ever induced to take a title like the present. A fine and non-claim are good splices to another title, but they will not do alone. There are many exceptions in the statute in favour of infants, femes covert,' &c. Erskine for the defendant: "Do I understand your Lordship to say, that though the defendant can now make out a good title, yet as that title did not form a part of the abstract, the plaintiff may avail himself of that circumstance?" Kenyon C. J." He certainly may, and avoid the contract. When the abstract is delivered by the seller, he must be able to verify it by the title deeds in his possession. As a good title was not made out at the day fixed, I shall direct the jury to find a verdict for the deposit, with interest up to that day." The jury found a verdict for the plaintiff accordingly. CHAP. VII. BANKRUPT. 1. Of Persons liable to be Bankrupts. II. Of Persons not liable to be Bankrupts. II. Of the several Acts of Bankruptcy. IV. Of Property in the Possession of the Bankrupt as reputed Owner. V. Of Payments made to and by Bankrupts, protected by Statutes. VI. Of Actions which may be brought by the Assignees of a Bankrupt, and in what Manner they ought to sue. VII. Of Actions by the Bankrupt. VIII. Of the Pleadings. IX. Of the Evidence, and Witnesses. I. Of Persons liable to be Bankrupts. ANY person (1) being a trader, and capable of contracting in the way of trade, may become a bankrupt. (1) Lord Hardwicke Ch. refused to supersede a commission which had been taken out against a clergyman, who was proved to have been a trader, and had committed an act of bankruptcy, although it was urged that clergymen were prohibited from trading by stat. 21 H. 8. c. 13. s. 5. and that all contracts made by them in trade, were by that statute declared to be void. Ex parte Meymot, 1 Atk. 196. See also p. 201, of the same book, where Lord Hardwicke said, that a commission of bankruptcy had been taken out against a peer, an Earl of Suffolk, for trading in wines; and though A feme covert, sole trader according to the custom of London, may bind herself by contracts made for the support of her trade, and consequently a commission of bankrupt may be taken out against her with respect to her separate effects in trade2. The term " bankrupt," is appropriated exclusively to traders, and to such traders only, as are either within the general or specific descriptions contained in the several statutes relating to bankrupts. From those statutes, and the construction which they have received in adjudged cases, it may be collected, that the following persons are subject to the bankrupt laws, viz. Any person, natural born subject, alien, or denizen using the trade of merchandize by way of bargaining, exchange, re-exchange, bartry, chevesance, or otherwise, in gross or by retail, or seeking his or her trade or living, by buying and selling; banker; brickmaker, that is a person who rents a brick ground, and makes bricks thereon for public sale (2); brokerf (4); butcher; factor; shoe maker (5), a Lavie v. Phillips, 3 Burr, 1776. and 1 Bl. R 570. b 13 Eliz. c. 7. s. 1. 1Jac. 1. c. 15. s. 2. € 21 Jac. 1. c. 19. s. 15. d 5 G. 2. c. 30. s. 39. e Wells v. Parker, B. R. 1 T. R. 24. reversing the judgment of C. B. (3) Sutton v. Weeley, 7 East, 442. f 5 G. 2. c. 30. s. 39. g Dally v. Smith, 4 Burr. 2148. i Crampe v. Barne, Cro, Car. 31. Stan, there might be some powers that the commissioners of bankrupts could not exercise against a peer, yet, notwithstanding this, he might be liable to a commission of bankruptcy, if he would trade; and so might a member of the House of Commons. See also Highmore v. Molloy, 1 Atk. 206. where Lord Hardwicke said, that a public officer, as an exciseman, &c. if a trader, made himself subject to the bankrupt laws. A servant of an ambassador may be a bankrupt. 7 Ann. c. 12. s. 5, (2) Lord Thurlow Ch. held, that a person who sold large quan tities of bricks, made of earth taken from the waste, without any licence from the lord, was a trader. Ex parte Harrison, 1 Bro. Ch. Ca. 173. (3) It must be observed, that a writ of error was brought on this decision in the House of Lords, which was there argued, and thereupon the following questions were put to the judges: 1. whether the finding in the special verdict was sufficient, whereupon to give final judgment; 2. if the finding was insufficient, what award ought to be made on such finding; 3. whether, if the finding was sufficient, the plaintiff in error appeared to be a trader within the Innkeepers and publicans', who sell liquors out of their houses in large quantities to all persons who apply for them, have been holden to be traders. So a person, who having been a horse-dealer, became a farmer, and in two years bought and sold, for profit, five or six horses, not calculated for the farming business". The rule in these cases, is, that where a person holds himself forth to the public as a general dealer in the articles which he buys and sells, or in other k Patman v. Vaughan, 1 T. R. 572. in Bartholomew v. Sherwood, 1 T. R. 573 n. Stewart v. Ball, C. B. M. 46 G. 3. 2 Bos. & Pul. N. R. 79 & post. true intent and meaning of the statutes concerning bankrupts? And the Lord Chief Baron having delivered the unanimous opinion of the judges present upon the first question in the negative, and upon the second question, that a writ of venire facias de novo ought to be awarded, it was thereupon ordered and adjudged, that the judgment given in the Court of King's Bench, reversing a judgment given in the Court of Common Pleas, should be reversed, and that the judgment given in the Court of Common Pleas should also be reversed, and that the special verdict given by the jury being insufficient should be annulled, and that the Court of King's Bench should award a venire facias de novo, and proceed according to law. 1 Bro. P. C. 543. Tomlins's edit. The plaintiff did not proceed on the venire facias de novo, but brought another action in the Com mon Pleas, which was afterwards dropped, and an action brought in the King's Bench, which was tried before Mr. Justice Buller and a special jury, 7th Dec. 1787; the jury found a special verdict; but it appearing that the plaintiff had left off brickmaking at the time when the petitioning creditor's debt accrued due, the defendant waved the special verdict, and a general verdict was entered for the plaintiff. (4) "I am inclined to think a pawnbroker within the general words of the 39th clause of 5 G. 2. c. 30. for though pawnbrokers are not expressly named, yet the general word brokers' is the genus, and all other kinds of brokerage the species." Per Lord Hardwicke Ch. in Highmore v. Molloy, 1 Atk. 206. Stockbrokers, buying and selling stock by commission, are clearly within the statutes. Cullen, 18. (5) To the trades here enumerated may be added the following, which are said to be within the statutes of bankrupts, viz. bakers and tanners*. Lord Hardwicke (Ex p. Burchall, 1 Atk. 141.) declared he was clearly of opinion, that a scrivener was within the 5 G. 2. c. 30. s. 39., and comprehended in the words bankers, brokers, and factors. * Per Cur. 3 Mod, 330, words, seeks his living by buying and selling those articles, such person is subject to the bankrupt laws. A person who resides abroad, but who trades to England, coming over here occasionally, is an object of the bankrupt laws: A. was a native of Scotland, and resided at Edinburgh, where he carried on a trade, and traded to all parts of the world. Being indebted, he came to England, where he was arrested, and lay in prison two months. It was adjudged, that A. was a person within the description of the bankrupt laws". A trader, having retired from business, may become a bankrupt in respect of debts contracted during the period of his trading. The proper facts having been found by a jury, it is the province of the court to determine, whether a person be a bankrupt within the meaning of any statute. II. Of Persons not liable to be Bankrupts. PERSONS cannot be made bankrupts for debts, which the law will not oblige them to pay. Hence, neither infants, nor femes covert', (except such femes covert, as are either sole traders, or may be considered as femes sole) are subject to the bankrupt laws. The buying and selling the profits of land by a person having a chattel interest therein, is not a buying and selling within the statutes, of bankrupt. Hence, where J. S. purchased a coal-mine for so long a time as any coals could be gotten therein, paying annually a certain rent, (subject to a right of re-entry in the seller in case of non-payment of the rent) and worked the mine, and sold the coals, it was holden, that he was not an object of the bankrupt laws. A person who had drawn bills for the purpose of raising money for the improvement of his estate', and had borrowed accommodation bills, in lieu of which he had given his n Alexander v. Vaughan, Cowp. 398. and cases there cited. Williams v. Nunn, Taunt. 270. and post. p. 175. o Anon. 1 Ventr. 5. p Dodsworth v. Anderson, 2 Jo. 142. cited by Ryder C.J. Say, 193, q Ex parte Sydehottom, 1 Atk. 146. R. v. Cole, Lord Raym. 443. S. P. r Ex parte Mear, 2 Bro. Ch. C. 266. |