5 N.C. 149 | N.C. | 1807
From Halifax District. The bankrupt, Henry Baker, on 24 August, 1803, was arrested on a writ of capias ad satisfaciendum, bearing teste the third Monday of August, and committed to jail. Two days afterwards a writ of fieri facias, bearing equal teste with the aforesaid writ of ca. sa., was delivered to the said sheriff, who levied the same upon the goods, etc., of the bankrupt, Baker, at the instance of the defendant, Henry Pugh, and before two months expired after Baker was arrested, sold the said goods, etc. Baker remained in jail upwards of two months, and was afterwards duly declared bankrupt, on a petition and commission founded on the said imprisonment, and continued in prison, and proof made thereof. On 6 April, 1803, for a debt then due by the bankrupt to Marmaduke Norfleet, he by deed conveyed to said Norfleet all his real estate; the suits of John and William Bell, of Andrew Flemming, etc., and the present defendant, then pending in Halifax County Court, in which suits judgments were obtained at the August term aforesaid, (150) and the bankrupt was indebted at that time more than he was worth. The question, whether the bankruptcy shall relate back to the arrest so as to avoid all intermediate dispositions of the bankrupt's effects between the time of the arrest and the completion of the term of imprisonment, considered by the law as amounting to an act of bankruptcy, can only be settled by the statute itself. That declares the arrest and imprisonment are both necessary to constitute the act of bankruptcy, and not that either independently of the other shall be sufficient; and they do not both exist until the term of imprisonment limited *117 for that purpose by the statute has expired. The authorities from the English books introduced to show that the bankruptcy is in England made to relate back to the arrest, are answered by the statutes of bankruptcy themselves. A statute subsequent to that of 5 Jac. Cap., 15, vid. the statute of 21 Jac. I., Cap., 19, expressly declares that the bankruptcy shall relate back to the arrest. The act of Congress contains no such provision.
The second point made, that a precedent act of bankruptcy existed, cannot differ the inference above, because we have no authority for establishing any other act as an act of bankruptcy than the one on which the commission issued. Judgment for the defendant.
