That your petitioner being unable to carry on his business, by reason
of great losses and decay of trade, and being ready and willing to
make a full and entire discovery of his whole estate, and to deliver
up the same to your honours upon oath, as the law directs for the
satisfaction of his creditors, and having to that purpose entered his
name into the books of your office on the — of this instant.
Your petitioner humbly prays the protection of this Honourable Court.
And shall ever pray, &c.
The secretary is to lay this petition before the commissioners, who shall
sign it of course; and the petitioner shall have an officer sent home
with him immediately, who shall take possession of his house and goods,
and an exact inventory of everything therein shall be taken at his
entrance by other officers also, appointed by the court; according to
which inventory the first officer and the bankrupt also shall be
accountable.
This officer shall supersede even the Sheriff in possession, excepting by
an extent for the king; only with this provision:—
That if the Sheriff be in possession by warrant on judgment obtained by
due course of law, and without fraud or deceit, and, _bonâ fide_, in
possession before the debtor entered his name in the office, in such case
the plaintiff to have a double dividend allotted to his debt; for it was
the fault of the debtor to let execution come upon his goods before he
sought for protection; but this not to be allowed upon judgment
confessed.
If the Sheriff be in possession by _fieri facias_ for debt immediately
due to the king, the officer, however, shall quit his possession to the
commissioners, and they shall see the king’s debt fully satisfied before
any division be made to the creditors.
The officers in this case to take no fee from the bankrupt, nor to use
any indecent or uncivil behaviour to the family (which is a most
notorious abuse now permitted to the sheriff’s officers), whose fees I
have known, on small executions, on pretence of civility, amount to as
much as the debt, and yet behave themselves with unsufferable insolence
all the while.
This officer being in possession, the goods may be removed, or not
removed; the shop shut up or not shut up; as the bankrupt upon his
reasons given to the commissioners may desire.
The inventory being taken, the bankrupt shall have fourteen days’ time,
and more if desired, upon showing good reasons to the commissioners, to
settle his books and draw up his accounts; and then shall deliver up all
his books, together with a full and true account of his whole estate,
real and personal, to which account he shall make oath, and afterwards to
any particular of it, if the commissioners require.
After this account given in, the commissioners shall have power to
examine upon oath all his servants, or any other person; and if it
appears that he has concealed anything, in breach of his oath, to punish
him, as is hereafter specified.
Upon a fair and just surrender of all his estate and effects, _bonâ
fide_, according to the true intent and meaning of the act, the
commissioners shall return to him in money, or such of his goods as he
shall choose, at a value by a just appraisement, £5 per cent. of all the
estate he surrendered, together with a full and free discharge from all
his creditors.
The remainder of the estate of the debtor to be fairly and equally
divided among the creditors, who are to apply themselves to the
commissioners. The commissioners to make a necessary inquiry into the
nature and circumstances of the debts demanded, that no pretended debt be
claimed for the private account of the debtor; in order to which inquiry
they shall administer the following oath to the creditor, for the proof
of the debt.
I, A. B., do solemnly swear and attest that the account hereto
annexed is true and right, and every article therein rightly and
truly stated and charged in the names of the persons to whom they
belong; and that there is no person or name named, concealed, or
altered in the said account by me, or by my knowledge, order, or
consent. And that the said — does really and _bonâ fide_ owe and
stand indebted to me for my own proper account the full sum of —
mentioned in the said account, and that for a fair and just value
made good to him, as by the said account expressed; and also that I
have not made or known of any private contract, promise, or agreement
between him the said — (or any body for him) and me, or any person
whatsoever.
So help me God.
Upon this oath, and no circumstances to render the person suspected, the
creditor shall have an unquestioned right to his dividend, which shall be
made without the delays and charges that attend the commissions of
bankrupts. For,
1. The goods of the debtor shall upon the first meeting of the creditors
be either sold in parcels, as they shall agree, or divided among them in
due proportion to their debts.
2. What debts are standing out, the debtors shall receive summonses from
the commissioners, to pay by a certain time limited; and in the meantime
the secretary is to transmit accounts to the persons owing it, appointing
them a reasonable time to consent or disprove the account.
And every six months a just dividend shall be made among the creditors of
the money received; and so, if the effects lie abroad, authentic
procurations shall be signed by the bankrupt to the commissioners, who
thereupon correspond with the persons abroad, in whose hands such effects
are, who are to remit the same as the commissioners order; the dividend
to be made, as before, every six months, or oftener, if the court see
cause.
If any man thinks the bankrupt has so much favour by these articles, that
those who can dispense with an oath have an opportunity to cheat their
creditors, and that hereby too much encouragement is given to men to turn
bankrupt; let them consider the easiness of the discovery, the difficulty
of a concealment, and the penalty on the offender.
1. I would have a reward of 30 per cent. be provided to be paid to any
person who should make discovery of any part of the bankrupt’s estate
concealed by him, which would make discoveries easy and frequent.
2. Any person who should claim any debt among the creditors, for the
account of the bankrupt, or his wife or children, or with design to
relieve them out of it, other or more than is, _bonâ fide_, due to him
for value received, and to be made out; or any person who shall receive
in trust, or by deed of gift, any part of the goods or other estate of
the bankrupt, with design to preserve them for the use of the said
bankrupt, or his wife or children, or with design to conceal them from
the creditors, shall forfeit for every such act £500, and have his name
published as a cheat, and a person not fit to be credited by any man.
This would make it very difficult for the bankrupt to conceal anything.
3. The bankrupt having given his name, and put the officer into
possession, shall not remove out of the house any of his books; but
during the fourteen days’ time which he shall have to settle the accounts
shall every night deliver the books into the hands of the officer; and
the commissioners shall have liberty, if they please, to take the books
the first day, and cause duplicates to be made, and then to give them
back to the bankrupt to settle the accounts.
4. If it shall appear that the bankrupt has given in a false account,
has concealed any part of his goods or debts, in breach of his oath, he
shall be set in the pillory at his own door, and be imprisoned during
life without bail.
5. To prevent the bankrupt concealing any debts abroad, it should be
enacted that the name of the bankrupt being entered at the office, where
every man might search gratis, should be publication enough; and that
after such entry, no discharge from the bankrupt should be allowed in
account to any man, but whoever would adventure to pay any money to the
said bankrupt or his order should be still debtor to the estate, and pay
it again to the commissioners.
And whereas wiser heads than mine must be employed to compose this law,
if ever it be made, they will have time to consider of more ways to
secure the estate for the creditors, and, if possible, to tie the hands
of the bankrupt yet faster.
This law, if ever such a happiness should arise to this kingdom, would be
a present remedy for a multitude of evils which now we feel, and which
are a sensible detriment to the trade of this nation.
1. With submission, I question not but it would prevent a great number
of bankrupts, which now fall by divers causes. For,
(1.) It would effectually remove all crafty designed breakings, by
which many honest men are ruined. And
(2.) Of course ’twould prevent the fall of those tradesmen who are
forced to break by the knavery of such.
2. It would effectually suppress all those sanctuaries and refuges of
thieves, the Mint, Friars, Savoy, Rules, and the like; and that these two
ways:—
(1.) Honest men would have no need of it, here being a more safe,
easy, and more honourable way to get out of trouble.
(2.) Knaves should have no protection from those places, and the Act
be fortified against those places by the following clauses, which I
have on purpose reserved to this head.
Since the provision this court of inquiries makes for the ease and
deliverance of every debtor who is honest is so considerable, ’tis most
certain that no man but he who has a design to cheat his creditors will
refuse to accept of the favour; and therefore it should be enacted,
That if any man who is a tradesman or merchant shall break or fail, or
shut up shop, or leave off trade, and shall not either pay or secure to
his creditors their full and whole debts, twenty shillings in the pound,
without abatement or deduction; or shall convey away their books or
goods, in order to bring their creditors to any composition; or shall not
apply to this office as aforesaid, shall be guilty of felony, and upon
conviction of the same shall suffer as a felon, without benefit of
clergy.
And if any such person shall take sanctuary either in the Mint, Friars,
or other pretended privilege place, or shall convey thither any of their
goods as aforesaid, to secure them from their creditors, upon complaint
thereof made to any of His Majesty’s Justices of the Peace, they shall
immediately grant warrants to the constable, &c., to search for the said
persons and goods, who shall be aided and assisted by the trained bands,
if need be, without any charge to the creditors, to search for, and
discover the said persons and goods; and whoever were aiding in the
carrying in the said goods, or whoever knowingly received either the
goods or the person, should be also guilty of felony.
For as the indigent debtor is a branch of the commonwealth which deserves
its care, so the wilful bankrupt is one of the worst sort of thieves.
And it seems a little unequal that a poor fellow who for mere want steals
from his neighbour some trifle shall be sent out of the kingdom, and
sometimes out of the world, while a sort of people who defy justice, and
violently resist the law, shall be suffered to carry men’s estates away
before their faces, and no officers to be found who dare execute the law
upon them.
Any man would be concerned to hear with what scandal and reproach
foreigners do speak of the impotence of our constitution in this point;
that in a civilised Government, as ours is, the strangest contempt of
authority is shown that can be instanced in the world.
I may be a little the warmer on this head, on account that I have been a
larger sufferer by such means than ordinary. But I appeal to all the
world as to the equity of the case. What the difference is between
having my house broken up in the night to be robbed, and a man coming in
good credit, and with a proffer of ready money in the middle of the day,
and buying £500 of goods, and carrying them directly from my warehouse
into the Mint, and the next day laugh at me, and bid me defiance; yet
this I have seen done. I think ’tis the justest thing in the world that
the last should be esteemed the greater thief, and deserves most to be
hanged.
I have seen a creditor come with his wife and children, and beg of the
debtor only to let him have part of his own goods again, which he had
bought, knowing and designing to break. I have seen him with tears and
entreaties petition for his own, or but some of it, and be taunted and
sworn at, and denied by a saucy insolent bankrupt. That the poor man has
been wholly ruined by the cheat. It is by the villainy of such many an
honest man is undone, families starved and sent a begging, and yet no
punishment prescribed by our laws for it.
By the aforesaid commission of inquiry all this might be most effectually
prevented, an honest, indigent tradesman preserved, knavery detected and
punished; Mints, Friars, and privilege-places suppressed, and without
doubt a great number of insolencies avoided and prevented; of which many
more particulars might be insisted upon, but I think these may be
sufficient to lead anybody into the thought; and for the method, I leave
it to the wise heads of the nation, who know better than I how to state
the law to the circumstances of the crime.