45

CHAPTER VI.

BANKRUPTCY AND INSOLVENCY.

COPYHOLD property in common with all other estate real and personal, is subject to the alienation of the Bankrupt and Insolvent Acts: with regard to the Bankrupt Laws, it may be noticed, that although the earlier statutes (a) affecting copyholds in their general operation are now repealed (b), and that by effect of a later act of Parliament (c), all the present and future estate of a bankrupt vests in his assignees without the formality of conveyance; still, copyholds are held not to be included, and consequently only saleable by the commissioners as heretofore (d). Prior to the 6 Geo. 4, c. 16, the assignees to whom a bargain and sale was made by the commissioners (e) of a bankrupt's estate and effects, inclusive of copyholds, were compellable to obtain admission on the Court Rolls to complete their title and the purchaser of such copyholds from the assignees was again exposed to the cost of admittance, thus involving double expense and fines. Some legal gentlemen, however, ventured the insertion in a bargain and sale of an exception of copyholds, and advised the direct conveyance

(a) 34 & 35 Hen. 8, c. 4; 13 Eliz. c. 7; 1 Jac. 1, c. 15; 21 Jac. 1, c. 19; 13 & 14 Car. 2, c. 24; 10 Anne, c. 15; 7 Geo. 1, c. 31; 5 Geo. 2, c. 30; 19 Geo. 2, c. 32; 24 Geo. 2, c. 57; 4 Geo. 3, c. 33; 36 Geo. 3, c. 90; 37 Id. c. 124; 45 Id. c. 124; 46 Id. c. 135; 49 Id. c. 121; 56 Id. c. 137; 1 Geo. 4,

c. 115; 3 Geo. 4, c. 74; 3 Id. c.81; 5 Id. c. 98.

(b) 6 Geo. 4, c. 16.

(c) 1 & 2 Wm. 4, c. 56, s. 26.

(d) Archbold's Bankruptcy, 10th edit., pp. 212, 227; 6 Geo. 4, c. 16, s. 68.

(e) 5 Geo. 2, c. 30, s. 26.

from the commissioners to a purchaser upon a sale by the unadmitted assignees, and upon an objection to this title, such was held not sustainable, thereby confirming the mode premised, and establishing the validity of a departure from the old method of conveyance (ƒ). The latter preceding course is the one which now legally obtains in the transfer or conveyance of a bankrupt's copyholds; several acts of Parliament certainly exist affecting bankruptcy, but do not interfere with copyholds (g), except in cases of entails; the bill of the present session has not yet passed into a practical law. Estates tail do not escape the scope of the bankrupt laws, but on the converse are made disposable by a statute particularly descriptive of the observances necessary to their sale and conveyance; copyholds are distinctly included, and, of course, are subject to the act (h): it is not, however, within our limit to enter into the strict nature of entails, such we leave to the research of each reader, with a recommendation to other works (i); they are, as before stated, subject to the bankrupt laws, and a precedent is added to those below, adapted to the purposes of this chapter.

With reference to insolvency, we need not take a detailed retrospect (k), but confine ourselves to the immediate and prevailing law upon this branch (7), and which is but a mere section of a statute as properly connected with our purpose (m):

(f) Scriven Cop., 4th edit., 1 vol., p. 301.

(g) 56 Geo. 3, c. 50; 6 Geo. 4, c. 16; 9 Geo. 4, c. 73; 1 Wm. 4, c. 7 1 & 2 Wm. 4, c. 56; 2 Id. c. 53; 2 & 3 Id. c. 114; 3 & 4 Id. c. 14, s. 28; 3 & 4 Id. c. 41; 3 & 4 Id. c. 47; 3 & 4 Id. c. 55; 3 & 4 Id. c. 74; 4 & 5 Id. c. 40; 4 & 5 Id. c. 79; 6 & 7 Id. c. 47; 7 Wm. 4 & 1 Vict. c. 73, s. 25; 1 & 2 Vict. c. 110; 2 & 3 Vict. cc. 11, 29, 37; 5 & 6 Vict. c. 122.

(h) 3 & 4 Wm. 4, c. 74, ss. 55,

the transfer of an insolvent's copyholds is specially dictated in the section just referred to, and under its power and effect a very simple conveyance is now practicable, indeed alone legal and correct. Precedents are contributed applicable to cases of purchases from the commissioners and assignees of bankrupt and insolvent copyholders.

No. 23.

BARGAIN AND SALE of copyholds to a purchaser by a commissioner (n), under a country fiat and appointment of bankrupt, as surrenderor, with necessary covenants (0).

THIS INDENTURE, made the day of, 18—, [insert date], BETWEEN [name] of [residence], Esq. one of the commissioners named, and acting in prosecution of a fiat in bankruptcy issued against [bankrupt's name] of [residence], late of [occupation], dealer and chapman, of the first part [name] of [residence, &c.], official assignee, and [name] of [residence and calling], and [name] of [residence and calling], the creditors, assignees of the estate and effects of the said [bankrupt] of the second part (p), the said [bankrupt] of the third part, and [name of purchaser] of [residence and calling], of the fourth part. WHEREAS at a customary Court Baron, holden for the manor of [state], in the county of [name], on the day of [insert date], the said [bankrupt] was admitted tenant on an inquisition duly presented to the homage of the said Court, as the customary heir of [name], then late of

(n) It has been doubted whether one commissioner could convey under a country fiat. Scriven Cop., 4th edit., vol. 1, p. 304; but see 5 & 6 Vict. c. 122.

(0) 6 Geo. 4, c. 16, s. 68; 1 & 2

Wm. 4, c. 56, s. 7; 5 & 6 Vict. c. 122, ut ante.

(p) The official assignee is usually made a party, though unnecessarily. Vide 1 & 2 Wm. 4, c. 56, s. 23; 5 & 6 Vict. c. 122, s. 49.

day of

[date], was

[state], deceased, to all and singular the copyhold hereditaments hereinafter described, with their appurtenances, TO HOLD TO HIM, the said [bankrupt] and his heirs, according to the custom of the said manor of [state]. AND WHEREAS a fiat in bankruptcy, bearing date the awarded and issued against the said [bankrupt], directed to her Majesty's District Court of Bankruptcy at [district], established by an act of Parliament, passed in the fifth and sixth years of the reign of her present Majesty Queen Victoria, intituled "An Act for the Amendment of the Law of Bankruptcy," under which he was duly declared bankrupt. AND WHEREAS the said [name] was appointed official assignee, and the same [name] and [name] were duly chosen by the creditors, and appointed assignees of the estate and effects of the said bankrupt. AND WHEREAS the said [commissioner], in pursuance of an act of Parliament, made and passed in the sixth year of the reign of his late Majesty King George the Fourth, as likewise in pursuance of an act of Parliament hereinbefore firstly referred to, and the therein said recited act of Parliament, made and passed in the first and second years of the reign of his late Majesty King William the Fourth, or one of them, caused the said hereditaments hereinafter described, and the customary fee simple and inheritance thereof in possession, to be offered for sale by auction, at the [name of sale room], in the town of [name], in the county of on the day of, and at such sale the said [purchaser's name] became the highest bidder for and purchaser of the same copyhold hereditaments, at or for the sum of £and thereupon paid into the hands of [official assignee], as such official assignee the sum of £ by way of deposit money according to the conditions of the said recited sale. Now THIS INDENTURE WITNESSETH that for carrying the said recited sale and purchase into effect, and in consideration of the said sum of £— so paid by the said [purchaser], in part of the said purchase-money as aforesaid, and of the further sum of

£― of lawful money of Great Britain and Ireland, current in England, other part and in full of the said purchase-money in hand paid by the said [purchaser] to the said [official assignee], with the privity and approbation of the said [commissioner] and [bankrupt], testified by their severally being made parties to and executing these presents, the payment of which said several sums of £ and £- in manner aforesaid, making together the sum of £ and that the same is in full for the absolute purchase of the copyhold hereditaments hereinafter described, they the said [official assignee], and assignees' names] Do hereby acknowledge and from the same DO, and each of them DOTH acquit, release and discharge the said [purchaser], his heirs, executors, administrators and assigns, and every of them for ever, by these presents, AND also in consideration of the sum of ten shillings of like lawful money to each of them, the said [commissioner] and [bankrupt], paid by the said [purchaser], immediately before the execution of these presents, the receipts whereof respectively are hereby acknowledged, he the said [commissioner], in further pursuance of the powers vested in him as aforesaid, as far as he lawfully can or may, and with the privity and consent, and by the direction and appointment of the said [official assignee], and [the assignees] testified as aforesaid, HATH ORDERED, bargained, sold, limited and appointed, conveyed and assured, and by these presents DOTH ORDER, bargain, sell, limit, appoint, convey and assure. AND the said [official assignee] and [assignees], with the privity and consent of the said [bankrupt], testified as aforesaid, and in pursuance of the power and authority for this purpose vested in them as such assignees as aforesaid, and according to their estate and interest as such assignees in the hereditaments hereinafter described, and not further or otherwise, HAVE and every of them HATH remised, released and confirmed, and by these presents Do, and each and every of them DOTH remise, release and confirm, and the said [bankrupt] HATH ratified and confirmed, and by these

E