neglect, it fhall fall on the holder of the bill. The bill, when refused, must be demanded of the drawer as foon as conveniently may be for though, when one draws a bill of exchange, he fubjects himself to the payment, if the perfon on whom it is drawn refufes either to accept or pay, yet that is with this limitation, that if the bill be not paid, when due, the person to whom it is payable fhall in convenient time give 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 drawee ". If the bill be an indorfed bill, and the indorfee cannot get the drawee to discharge it, he may call upon either the drawer or the indorfer, or if the bill has been negociated through many hands, upon any of the indorfers; for each indorfer is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorfer, as of the drawer. And if fuch indorfer, fo called upon, has the names of one or more indorfers 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 indorfer has nobody to refort to, but the drawer only. WHAT has been faid of bills of exchange is applicable alfo to promiffory notes, that are indorfed over, and negociated from one hand to another: only that, in this cafe, as there is no drawee, there can be no protest for non-acceptance; or father, the law considers a promiffory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in cafe of non-payment by the drawer, the feveral indorfees of a promiffory note have the fame remedy, as upon bills of exchange, against the prior indorfers. y Salk, 127. CHAPTER THE THIRTY-FIRST. OF TITLE BY BANKRUPTCY. TH 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 prefent confideration a tenth method of tranfferring property, which is that of X. BANKRUPTCY; a title which we before lightly touched upon 2, fo far as it related to the transfer of the real eftate of the bankrupt. At prefent we are to treat of it more minutely, as it principally relates to the difpofition of chattels, in which the property of persons concerned in trade more usually confifts, than in lands or tenements. Let us therefore first of all confider, 1. 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 before 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 fpirit we are told by fir Edward Coke, that we have fetched as well the name, as the wickedness, of bankrupts from foreign nations. But at prefent 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 some privileges, not only on the creditors, but alfo 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 perfons, and fome pecuniary emoluments, upon condition they furrender up their whole eftate to be divided among their creditors. In this refpect our legislature feems 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 fhare: if indeed that law, de debitore in partes fecando, is to be understood in so very butcherly a light; which many learned men have with reafon doubted'. 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; subjecting him to ftripes and hard labour, at the mercy of his rigid creditor; and sometimes felling him, his wife, and children, to perpetual foreign slavery trans Tiberim: an oppreffion, which produced fo many first English ftatute concerning this of fence, 34 Hen. VIII. c. 4. against "fuch perfons as do make bankrupt,” is a literal tranflation of the French idiom, qui funt banque route. e The word itfelf is derived from the word barcus or banque, which fignifies the table or counter of a tradefman (Dufiefne. I. 969.) and ruptus, broken; denoting thereby one whofe fhop or placé of trade is broken and gone; though others rather choose 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, leaving but a trace behind. (4 Inst. 277.) And it is obfervable that the title of the f Taylor. Comment. in L. decemviral. Bynkerth. Obferv. Jur. I. 1. Heinecc. Antiq. III. 30. 4. 8 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 obferves', "inhumanum erat fpoliatum fortunis "fuis in folidum damnari." Thus far was just 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 circumstances, 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 poffeflion: a law, which under a falfe notion of humanity, seems to be fertile of perjury, injustice, and abfurdity. 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 fuffered to confine an honest bankrupt after his effects are delivered up; and at the fame time taking care that all his just debts fshall 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 indifcretion, 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 discharged. (Mod. Un. Hift. vii. 128.) h Cod. 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 fpecies of dishonesty, and a temporary injustice to his creditor: and if, at such time, he has no fufficient fund, the dishonesty and injustice is the greater. He cannot therefore murmur, if he fuffers the punishment which he has voluntarily drawn upon himfelf. 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 persons out of trade, a merchant or trader becomes incapable of discharging his qwn 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 alfo (to difcourage 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 ftatutes, but only an induftrious trader. THE first statute 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 fuch perfons only as have used the trade of merchandize, in grofs or by retail, by way of bargaining, exchange, rechange, bartering, chevifance', or otherwife; or have fought their living by buying and felling. And by ftatute 21 Jac. I. c. 19. persons using the trade or profession of a scrivener, receiving other mens monies and estates into their trust and custody, are also made liable to the statutes of bankruptcy: and the benefits, as well as the penal parts of the law, are ex 1 that is, making contracts. (Dufrefne. II. 569.) tended |