that villainy and knavery might not be encouraged by a law. That a due care be taken of the third, that men’s estates may as far as can be secured to them. And due limits set to the last, that no man may have an unlimited power over his fellow-subjects, to the ruin of both life and estate.
All which I humbly conceive might be brought to pass by the following method, to which I give the title of
A Court of Inquiries.
This court should consist of a select number of persons, to be chosen yearly out of the several wards of the City by the Lord Mayor and Court of Aldermen, and out of the several Inns of Court by the Lord Chancellor, or Lord Keeper, for the time being, and to consist of,
A President, } To be chosen by the rest, and A Secretary, } named every year also. A Treasurer, } A judge of causes for the proof of debts. Fifty-two citizens, out of every ward two; of which number to be twelve merchants. Two lawyers (barristers at least) out of each of the Inns of Court.
That a Commission of Inquiry into bankrupts’ estates be given to these, confirmed and settled by Act of Parliament, with power to hear, try, and determine causes as to proof of debts, and disputes in accounts between debtor and creditor, without appeal.
The office for this court to be at Guildhall, where clerks should be always attending, and a quorum of the commissioners to sit de die in diem, from three to six o’clock in the afternoon.
To this court every man who finds himself pressed by his affairs, so that he cannot carry on his business, shall apply himself as follows:—
He shall go to the secretary’s office, and give in his name, with this short petition:—
To the Honourable the President and Commissioners of His Majesty’s Court of Inquiries. The humble petition of A. B., of the Parish of —— in the Haberdasher.
Showeth
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, bona 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, bona 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 pounds 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 bona 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,
