9. Innkeepers &c. are responsible as depositaries, for the CH. 17. effects brought and lodged with them by the traveller, and Art. 18. ought to be kept as necessary deposits; they are answerable

for them if taken away or damaged, whether the taking or Art. 38, 39, damage has been done by the innkeeper's servants or domes- 40. tics, or by strangers coming or going in the inn; but they are

not answerable for a theft, or taking by an armed or superior force.

§ 10. Du sequestre is of several kinds. Is by agreement or Art. 41, 42, judicial. Is by agreement or conventional, when the deposit is 43, 45, 46, 47. made by one or more persons of a thing in dispute, in the hands of a third person, who, after the dispute is ended, is obliged to render it to the person adjudged to have it. It may not be gratuitous; when it is gratuitous, it is subject to the rules of a deposit, properly so called, saving these differences following:-the "sequestre" may have for its object not only things moveable, but immoveable; the depositary charged "du sequestre" cannot be discharged before the contest is ended, but by the consent of all parties interested, or for causes judged lawful. "Du sequestre ou depôt judiciaire," the law may order it, 1. of the moveables of a debtor seized; 2. of an immoveable or moveable thing, the right or possession of which is disputed by two or more; 3. of things the debtor offers for his liberation. This code also establishes a very useful rule, perhaps positive, rather than common law; it is this: If A deposit goods in my hands, and there be reason to think B is the owner of them, I may give notice to B, and appoint a reasonable time for him to claim them; and if he do not, I may deliver them to A, and with him only shall B contest the right, and not with me. This rule seems to be entirely reasonable, for if the owner having due notice, will not in a reasonable time claim the deposit of the depositary, it is right and fit he shall be compelled to contest it only with the depositer, to whom the thing deposited may have been redelivered, and who best knows his title to it. Roman or Civil law consisted of the Institutes or rudiments; 2. Digest, or Pandects; 3. the Code; 4. the Novels or imperial decrees.

ART. 18. § 1. Reasons for bringing into one view the essential principles of bailments &c., in assumpsit. 1. It is almost universally best to treat of the essential principles of law, on any one subject, in one view and together. 2. Though other actions, as detinue, trover, &c., depend often on these principles of bailment, yet they are of more essential use and inportance in assumpsit than in any other form of action. 3. In assumpsit, in personal actions, there is a wider field, and more occasion for considering principles of law, than in any other form of personal actions, As the action of assumpsit, like

CH. 18.

Art. 1.

3 Inst. 66, 424.

other actions, not only involves the principles of law on any subject to which it is applied, but it also embraces more of the principles of equity than any other form of action, and is less entangled with nice and special pleadings. 4. In the usual alphabetical arrangement of actions, it precedes all others except the action of account, which is very limited in its use and application. Hence it is that in considering the action of ass sumpsit on any subject, the essential principles of law, and sometimes of equity, on that subject are noticed, and without doing this, it is generally impracticable, if not impossible, to understand the principles and use of the action.

ART. 19. Pleas. It is a plea for not returning a horse bailed, he was sick &c. As where the deft. pleaded that at the time the horse was delivered to him, he was sick of various infirmities, to wit., of the glands &c., whereby he was unfit for labour, and he died by occasion of these infirmities, without this that the deft. so violently and enormously rode him, that he died by occasion of that riding, hoc paratus &c. The plt. replied that the deft. so violently and enormously rode him that he died as the plt. had complained, and issue. The question in these cases of bailment are, if the horse died by reason of the defts. misuse of him, and this ought to be stated in the declaration; and the sickness &c., is but inducement to the traverse, as in the above case; for the party to whom the horse &c., is bailed by lending, hiring, &c., is answerable only for his proper use of him, and only for his faults in regard to the horse generally, there being nothing in the contract in the nature of insurance of the property.

CHAPTER XVIII.

ACTION OF ASSUMPSIT. BANKRUPTCY.

ART. 1. Assumpsit. 1. Some bankrupt cases, especially About 1804. where a sale of goods is valid or not, the seller being in bad circumstances. As proper bankrupt laws are but little in use, as yet, in the United States, and the country is yet too young, properly to execute them, (though perhaps the least of two evils,) it is not necessary to consider the principles of bankrupt law at large. There are however many decisions to be found in the bankrupt cases, material to shew where the right of property is, even where a system of legal bankrupt laws does not exist. In these cases may be found decided some of the nicest and most useful questions in regard to property, and to frauds, more

especially fraudulent sales of property by men on the point of failing, or in embarrassed circumstances. But many of these questions will be found to have arisen in actions of trover, some in actions of trespass, and some in other actions, and these cases will be noticed in their proper places. As it will be observed, bankrupt laws are but briefly considered in this chapter, and insolvent laws in chapter 39-laws that so easily run into each other, and which have been so often confoundedit may be proper, in a few words, to notice their origin, and usual material differences.

Insolvent laws existed in Rome, under the description of Cessio bonorum, whereby the debtor's body was exempted if he did yield up his goods, that is, estate, to his creditors, but his future acquisitions of property remained liable for his debts. Such laws were not necessary in England at all, till the year 1267, nor in any considerable degree till 19 H. 7; for before 1267 there was no imprisonment for debt in England, this was gradually introduced by acts of parliament, passed A. D. 1267, 1283, 1285, and mainly by 19 H. 7., Ch. 9, which last act gave the like process in actions on the case and for debt, as in trespass, that is, imprisonment &c. After this time the kings of England occasionally granted relief in the nature of insolvent acts; but no proper insolvent act was enacted by Parliament till A. D. 1660, and in 1671 this act was re-enacted, and made the first regular insolvent law in England; and this became the model of all after insolvent acts, occasionally passed in England and her colonies, about 40 of which have been enacted in England; these acts bave included all classes; most of the colonies enacted them; the great end of which was, usually, to exempt the debtor from imprisonment on giving up all his property to his creditors, leaving his future acquisitions of property liable for his debts.

Bankrupt laws grew out of commerce, and it has been stated that the first bankrupt act, 34 H. 8, extended to all persons, and mentioned no discharge, and made bankruptcy criminal. The first proper bankrupt act was 13 Elizabeth,Ch.7, followed by 21 James 1, Ch. 19, and eleven or twelve others, all confined to merchants, and traders, living by buying and selling. But few of the colonies passed bankrupt acts; but many, insolvent acts, as Massachusetts in 1698, New York in 1755, Rhode Island 1756, &c. &c. Insolvent acts sometimes, though not often, discharged the debtor's property as well as his body; these in principle were bankrupt acts so far; but one distinction has ever existed, that is, an insolvent act has ever operated at the instance of the debtor imprisoned, but bankrupt laws at the instance of creditors; further, bankrupt acts have generally discharged the debts of the debtor wholly, and left neither his 41

VOL. I.

CH. 18.

Art. 1.

CH. 18.
Art. 1.

Act of Con

4, 1800; un

body nor future acquisitions of property liable to pay them, though all this seems to have been rather by implication than express law, till the 4th and 5th of Anne.

Insolvent and Bankrupt laws are thus materially different, and the difference is most material in our system; for by the Federal Constitution, Congress has power to enact "uniform laws on the subject of bankruptcies throughout the United States," and it has been decided, the several States have power to enact bankrupt laws, when the power is not exercised by Congress; also that the power to enact insolvent laws has ever been left in the State Legislatures, but in both of insolvent and bankrupt laws, this State power must be so exercised as not to violate the 1st art. 10 sect. of the Constitution of the United States, which provides, that "no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts;" also decided, that imprisonment of the debtor's body is no part of his contract.

2. At that time Congress passed a bankrupt law, nearly gress, April in the words of the principal British statutes on the subject, and in 1804 repealed it. But the repeal did not re-vest any the validity power in the several States to enact bankrupt laws, if they had it prior to April 4, 1800.

der this act

of a commission could not

be impeach ed at law by a creditor at

the time of

who might have opposed

the proceed ings in their

commence

ment, & in any after

stage.

4 Day's Ca. 79, Bissell &

al. v. Post.

6 T. R. 134,

3. It was found, as men of reflection must have foreseen, that the United States then were not in a situation properly to execute a bankrupt law, which must ever be a mere instrument of fraud, if not executed with severity enough to restrain the passions, which ever have, and ever will, actuate embarrassed and fraudulent men; this can be done only in old nations, whose habits and feelings are fully reconciled to severe laws, whose execution is very steadily enforced by sound commercial policy; this is not the case in the United States; indulgence is here substituted and even creditors have often indirectly tolerated fraudulent practices in bankrupts, rather than enforce the mild laws Congress made.

4. It is a fundamental principle in a system of bankruptcy, that the instant one commits an act of bankruptcy, that, and every after act of his, is void, so far that he can make no disposition of his property, but in some special cases. From this principle &c., result several actions deserving notice; some to the assignees; some to the bankrupt; and some to his creditors; several instances of which have been already stated. But a bankrupt's case may be taken out of the bankrupt laws, by the consent of all concerned. Every trader able to con

tract may be a bankrupt. Cowp. 745.

5. As where Bolton's estate was under a commission of 137, Kaye v. bankruptcy, and an agreement of five parts was entered into April 6, 1793, between the bankrupt of the one part, the plt.

Bolton.

Cн. 18.
Art. 2.

8 D. & E.

of the second part, the commissioners of the third part, the deft. of the fourth part, and the several creditors named of the fifth part, in which agreement the commission was mentioned &c., that the plt. had been elected assignee of the estate of Isaac Bolton, but that the deft. to avoid further proceedings under the commission had, with the consent of the bankrupt, the plt., "and the several creditors whose hands and seals were thereunto subscribed and affixed," and of the commissioners, agreed 140, Echto pay all the creditors of the bankrupt their full debts, in consid- hardt v. Wileration there should be no further proceedings under the com- son. mission, and this agreement was adjudged by the court to be good. To assumpsit by several partners, the deft. may plead in bar the bankruptcy of one of them. ART. 2. Bankrupt actions in England &c. 1. Actions 3 of assumpsit by the assignees, who stand in the place of the bankrupt, invested with all his rights of property, may sue to recover what was due to him, and they may declare as assignees, for all demands due on his contracts before the act of bankruptcy; but for all demands on contracts entered into by him, after an act of bankruptcy committed, they may sue in their own names, for after this he is to be viewed as their agent, and his property in the hands of others, or which comes to him before his certificate is allowed, belongs to his assignees, and may be recovered in their action of assumpsit, or other action, as the case may be,

Wils. 307. Cowp. 570. 117, Loans v.

-1 Esp.

Mann.

2. A legacy was bequeathed to a bankrupt, when his cer- 2 Burr 716, tificate was complete, except the judge's allowance of it, and it Tudway v. was decided that this legacy belonged to the assignees.

Brown.

Kitchen v. Campbell.1 Esp. 118. 2 D. & E.

3. So an action of assumpsit lies to recover back money 3 Wils. 304, levied by the sheriff on execution against the bankrupt's goods, issued after he commits an act of bankruptcy, against the plt., at whose suit the execution issued; for by the act of bankruptcy the property of the goods vested in the assignees. A ship carpenter may be one. A seisure of goods on execution not affected by an after act of bankruptcy of the owner, secus as to a seisure after such act committed.

141.

5 D. & E.

197.-1 Ld. Raym. 741 &

724.

4. May 2, 1785, the act of bankruptcy was committed, Vernon vbut not known to the deft., or any of the creditors. Some Hall. months before, the deft. had sold an estate to one A, who paid him for it by a bill of exchange on the bankrupt, payable Feb. 7, 1786. The deft. applied for payment when due, but the bankrupt told him it was not convenient to pay, but he would pay interest. May 22, 1786, the deft. received payment. This money so received, the assignee recovered back in this action, as it was not a payment made in the course of busi

ness.

§ 5. The former assignee removed, the new one may de- 10 East 61.