6 G. 4. c. 16. Form of striking docket in a town and country com. mission. Gazette evidence. Trader compounding with petitioning creditor an act of bankruptcy. Commission may either be superseded or continued. shall have been inserted in the London Gazette within eight days after such declaration was filed; and no docket shall be struck upon such act of bankruptcy before the expiration of four days next after the insertion of such advertisement, in case such commission is to be executed in London, or before the expiration of eight days next after such insertion, in case such commission is to be executed in the country; and the gazette containing such advertisement shall be evidence to be received of such declaration having been filed. (a) § 8. enacts, that if any such trader, liable by virtue of this act to become bankrupt, shall, after a docket struck against him, pay to the person or persons who struck the same, or any of them, money, or give or deliver to any such person any satisfaction or security for his debt, or any part thereof, whereby such person may receive more in the pound in respect of his debt than the other creditors, such payment, gift, delivery, satisfaction, or security shall be an act of bankruptcy; and if any commission shall have issued upon the docket so struck as aforesaid, the lord chancellor may either declare such commission to be valid, and direct the same to be proceeded in, or may order it to be superseded, and a new commission may issue, and such commission may be supported either by proof of such last-mentioned or any other Creditor so act of bankruptcy; and every person so receiving such money, compounding. gift, delivery, satisfaction, or security as aforesaid, shall forfeit his whole debt, and also repay or deliver up such money, gift, satisfaction, or security as aforesaid, or the full value thereof, to such person or persons as the commissioners acting under such original commission, or any new commission, shall appoint, for the benefit of the creditors of such bankrupt. Penalty. Traders having privilege of parliament. Proceedings. Trader having privilege of par liament, not paying or compounding to satisfaction of creditor, and also entering an appearance to the action with in one month, an act of bank ruptcy. Trader taking benefit of insolvent act. § 9. enacts, that if any such trader having privilege of parlia ment shall commit any of the aforesaid acts of bankruptcy, a commission of bankrupt may issue against him, and the commissioners and all other persons acting under such commission may proceed thereon in like manner as against other bankrupts, but such person shall not be subject to be arrested or imprisoned during the time of such privilege, except in cases hereby made felony. § 10. enacts, that if any creditor or creditors of any such trader having privilege of parliament to such amount as is hereinafter declared requisite to support a commission, shall file an affidavit or affidavits in any court of record at Westminster that such debt or debts is or are justly due to him or them respectively, and that such debtor, as he or they verily believe, is such trader as aforesaid; and shall sue out of the same court a summons, or an original bill and summons against such trader, and serve him with a copy of such summons, if such trader shall not, within one calendar month after personal service of such summons, pay, secure, or compound for such debt or debts, to the satisfaction of such creditor or creditors, or enter into a bond in such sum, and with two sufficient sureties, as any of the judges of the court out of which such summons shall issue shall approve of, to pay such (a) By the insolvent act 7 G. 4. c. 57. § 13., the filing a petition to take the benefit of the act is declared an act of bankruptcy, if the party be declared a bankrupt within a certain time from the filing. sum as shall be recovered in such action or actions, together with 6 G. 4. c.16. such costs as shall be given in the same, and within one calendar month next after personal service of such summons cause an appearance or appearances to be entered to such action or actions in the proper court or courts in which the same shall have been brought, every such trader shall be deemed to have committed an act of bankruptcy from the time of the service of such summons; and any creditor or creditors of such trader to such amount as aforesaid, may sue out a commission against him, and proceed thereon in like manner as against other bankrupts. Trader having privilege of parobeying order liament, disof any court of equity, or in bankruptcy, or lunacy, for payafter service and ment of money peremptory day fixed, an act of § 11. enacts, that if any decree or order shall have been pronounced in any cause depending in any court of equity, or any order made in any matter of bankruptcy or lunacy against any such trader having privilege of parliament, ordering such trader to pay any sum of money, and such trader shall disobey, the same having been duly served upon him, the person or persons entitled to receive such sum under such decree or order, or interested in enforcing the payment thereof pursuant to such decree or order, may apply to the court by which the same shall have been pronounced to fix a peremptory day for the payment of such money, which shall accordingly be fixed by an order for that purpose; bankruptcy. and if such trader, being personally served with such last-mentioned order eight days before the day therein appointed for payment of such money, shall neglect to pay the same, he shall be deemed to have committed an act of bankruptcy from the time of the service thereof; and any such creditor or creditors as aforesaid may sue out a commission against him, and proceed thereon in like manner as against other bankrupts. maintenance. $114. enacts, that it shall be lawful for the commissioners, Allowance to before the choice of assignees, and after such choice, for the as- bankrupt for signees, with the approbation of the commissioners, testified in writing under their hands, from time to time to make such allowance to the bankrupt out of his estate, until he shall have passed his last examination, as shall be necessary for the support of himself and his family. § 115. enacts, that if any bankrupt apprehended by any warrant of the commissioners shall, within the time hereby allowed for him to surrender, submit to be examined, and in all things conform, he shall have the same benefit as if he had voluntarily surrendered. Benefit to bankrupt apprehended and conforming. Bankrupt to deliver up his books of acsignees upon count to as § 116. enacts, that the bankrupt, after the choice of assignees, shall (if thereto required) forthwith deliver up to them, upon oath, before a master ordinary or extraordinary in chancery or justice of the peace, all books of account, papers, and writings relating to his estate in his custody or power, and discover such as are in oath; the custody or power of any other person; and every such bank- to attend assigrupt, not in prison or custody, shall at all times after such nees and assist surrender attend such assignees upon every reasonable notice in them in making writing for that purpose given by them to him, or left at his house, out his acand shall assist such assignees in making out the accounts of his estate; and such bankrupt, after he shall have surrendered, may, to be at liberty at all seasonable times before the expiration of the said forty-two to inspect acdays, or such further time as shall be allowed to him to finish his counts; examination, inspect his books, papers, and writings, in the presence of his assignees or any person appointed by them, and counts; after certificate to attend assignees. Allowance to bankrupt for attendance. bring with him each time any two persons to assist him; and after he shall have obtained his certificate, shall upon demand in writing given to him, or left at his usual place of abode, attend the assignees, to settle any accounts between his estate and any debtor to or creditor thereof, or attend any court of record to give evidence touching the same, or do any act necessary for getting in the said estate; for which attendance he shall be paid 5s. per day by the assignees out of his estate; and if such bankrupt shall, after such demand as aforesaid, not attend, or on such attendance refuse to do any of the matters aforesaid, without sufficient cause shewn to the commissioners for such refusal, and by them allowed, the assignees making proof thereof upon oath before the commissioners, the said commissioners may, by warrant directed to such person as they shall think proper, cause such bankrupt to be Imprisonment apprehended, and committed to such prison as they shall think fit, there to remain until he shall conform to the satisfaction of the said commissioners or of the lord chancellor. on non-attend ance. 1 & 2 G. 4. c. 115. Riotous per into custody. II. Apprehension of Persons interrupting Commissioners. By stat. 1 & 2 G. 4. c. 115. § 21. it is enacted, "That the commissioners acting under any commission of bankruptcy shall have sons to be taken full power and authority, and they are hereby empowered and authorized to order and direct the messenger or messengers acting under their authority in any such commission to take into custody any person or persons who shall commit or be guilty of any riot or disturbance, or who shall interrupt the said commissioners in the exercise of their duty, and to have such person or persons taken before any alderman or magistrate acting in the commission of the peace, to be dealt with according to law; and the warrant of such commissioners shall be a full authority and indemnity to such messenger or messengers in so doing." Repeal of stat. 5 G. 2. c. 30. by which jus tices were em III. Apprehension of a Bankrupt for Non-attendance on Commissioners. The former statutes, which gave power to the commissioners to examine the bankrupt upon oath, gave no specific authority for summoning him and enforcing his attendance. The only mode in powered to issue which this could be effected was, that, by 5 G. 2. c. 30. § 14. upon a certificate of the bankruptcy by the commissioners, a judge or justice of the peace was empowered to grant a warrant to apprehend and commit him to the county gaol. warrants. This provision is now repealed, and the stat. 6 G. 4. c. 16. § 36. enables the commissioners to summon the bankrupt, whether he shall have obtained his certificate or not; and, in case of his nonattendance, they may authorize any person to arrest him and bring him before them. In consequence of this alteration of the law, the precedents contained in former editions for a warrant by a justice of the peace to apprehend the bankrupt, and for a commitment thereon, have become inapplicable, and are therefore omitted. 319 Baron Court. THE court baron is a court which every lord of the manor (anciently called a baron) hath within the precinct of that manor. The business thereof is to inquire of matters concerning the lord and tenant in their civil capacity only, as of the death of tenants since the last court, of alienations, surrenders, encroachments, trespasses, escheats, forfeitures, and such like. But with this court is frequently held, by grant or prescription, a Court Leet ; the jurisdiction whereof extendeth to all criminal matters within the precinct for the preservation of the king's peace; for which see tit. Leet. Barratry. See Vol. III. (Criminal Law,) p. 77. Bastards. [Concerning the Settlement of Bastard Children, and the Removal of unmarried Women with child, see tit. Poor, Vol. IV.] I. Who shall be deemed a Bastard, p. 320. II. Securing the reputed Father, p. 330. [6 G. 2. c. 31.-49 G. 3. c. 68.-4 & 5 W. 4. c. 76.] III. Bond to indemnify the Parish, p. 334. [6 G. 2. c. 31.- 54 G. 3. c. 170.-4 & 5 W. 4. c. 76.] IV. Order of Filiation and Maintenance. Form of Commitment on, and Appeal against, p. 345. [18 Eliz. c. 3. -3 C. 1. c. 4.—6 G. 2. c. 31.-49 G. 3. c. 68.-4 & 5 W. 4. c. 76.] V. Right of the Father or Mother to the Custody of the VI. Punishment of the Mother and reputed Father, p. 373. VII. Mother or reputed Father running away, p. 375. VIII. Capacity of a Bastard as to Inheritance, p. 375. Child born out of wedlock of parents who who afterwards marry. Child born after husband's death. Woman with child when married. Bastard born of a married woman. I. Who shall be deemed a Bastard. BASTARD, by our English laws, is one that is not only begotten, but born, out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard if the parents afterwards intermarry (a); and herein they differ most materially from our law; which, though not so strict as to require that the child shall be begotten, yet makes it an indispensable condition to make it legitimate, that it shall be born after lawful wedlock. 1 Black. Com. 454. 2 Inst. 96. As all children born before matrimony are bastards, so are all children born so long after the death of the husband, that by the usual course of gestation they could not be begotten by him. But this being a matter of some uncertainty, the law is not exact as to a few days. Cro. Jac. 451. (6) If a woman grossly enceinte marry, it is the child of the husband; for when they testify their consent by a public marriage before the birth of the child, it is a public acknowledgment that the child is his; for at that time the child is one with the mother, and therefore, in taking the mother, he takes the child with her. 1 Roll. Abr. 358. Therefore, if the issue be born within a month or even within a day after marriage between parties of full lawful age, the child is legitimate. 1 Inst. 244. Where the parents have married so recently before the birth of the child that it could not have been begotten in wedlock, the marriage of the parties is the criterion adopted by the law in such cases of antenuptial generation, for ascertaining the actual parentage of the child. For this purpose it will not examine when the gestation began, looking only to the recognition of it by the hus band in the subsequent act of marriage. Per Ld. Ellenborough C.J Luff, 8 East, 207, 208. post, p. 328. Rex v. All children born during a lawful marriage are presumed to be legitimate. The general maxim is, Pater est quem nuptiæ demon strant. But children born during wedlock, may, in some circumstances, be bastards: and such bastard child of a married woman (a) The law of Scotland, in this respect, is founded upon the canon and civil law, and consequently, if a marriage of the mother of a child with the father of such child takes place in Scotland, such child born in Scotland before the mar riage is equally legitimate, by the laws of that country, with children born after the marriage, for the purpose of taking land and every other purpose, provided such child be begotten and born while such father and mother were respectively unmarried, and they respectively continued unmarried from the time when such child was begotten until the time of their intermarriage. Such child, however, though born of parents domiciled in Scotland, is not, by such marriage, rendered capable of inheriting lands in England: for the right of inheritance follows the lex loci. Doe v. Vardill, 5 B. & C. 438. But as to personal property, the rule is that the lex domicilii shall govern its distribution. 5 Ves. 750. Somerville v. Somerville, mulieribus constitutum, is This doctrine was strongly (b) According to Co. Lit. 123., Legitimum tempus nine months or forty weeks. See Dalt. c. 11. p. 34. controverted in a very learned note by Hargrave in his edition of Co. Lit., concluding by citing an assertion of the celebrated Dr. Hunter, that he believed two women to have been delivered of a child alive in a natural way, above ten calendar months from the hour of conception. But the foundations for this belief of Dr. Hunter are much shaken by the evidence of the medical witnesses in the Gardner Peerage Case (reported by Mr. Le Marchant), House of Lords, 1828. |