The common law did not resort to imprisonment as a means of enforcing payment of debts. The process against mere debtors, or defendants charged with injuries without force, beginning with the praecipe, which was only a command, and following this by a pone, which was an attachment to require his appearance in court, was completed and exhausted by the distringas, or distress infinite, which authorized the sheriff to take the goods of the defendant and the profits of his lands. But the courts permitted a fiction of law, by which, the defendant being charged with a breach of the peace, a capias ad respondendum issued at once, and after judgment, a capias ad satisfaciendum, (a) But England could make no great progress in commerce and business without perceiving the necessity of something more than this; and, after some earlier statutes relating principally to foreigners, in 34 Henry VIII. (1543), an act was passed which may be considered the first English act of bankruptcy, (b) And this, followed by 13 Elizabeth, c. 7, * (1571), and 21 Jac. L c.
(a) 3 Bl. Com. 279; Hubert's case, 3 Rep. 12.
(b) With regard to the derivation of the word bankruptcy, though not perhaps essential to the present discussion, it may be observed that high authorities are in conflict upon it. Mr. Justice Black-stone, in his Commentaries, vol. iii. p. 471, derives it from the word bancus or banque, which means the table or counter of a tradesman; and ruptus, broken, denoting thereby one whose shop or place is broken and gone. Sir Edward Coke, on the other hand, more metaphorically and quaintly makes the derivation from the two French words banque and route, which last word, he says (4 Inst. 277), means " a sign or mark, as we say a cart-rout, which is the sign or mark where the cart hath gone; so, metaphorically it is taken for him that hath wasted his estate and removed his banque, so that there is left but a mention thereof." The meaning of the term has been so often passed upon by courts and legislatures, that it becomes a question of little practical importance at this day. Yet, in favor of Mr. Justice Black-stone's derivation, it may be said that it seems more simple and appropriate, and has unquestionably met with a more decided measure of subsequent approval than the other. Further, it accords with the custom which formerly obtained among the bankers of Italy, who used to carry on their business in the public places, seated on forms, with benches to count their cash upon, and of whom if any one, became insolvent, his bench was broken, either as a mark of infamy, or to put another in its place. 1 Beawes' Lex Mercatoria, 371. The title, however, of the first English statute upon this subject, relating to English debtors (34 & 35 Henry VIII. c. 34), might well have suggested to Lord Coke the view he adopted. It was "against such as do make bankrupt," which is but a literal translation of the French idiom, "qui font banque route." Story, J., in Everett v. Stone, 3 Story, 453.
*The mischiefs of this permission of preference are very great and very obvious; and experience - through which most of our States have passed - proves them to be those which theory would indicate. Such a preference always works injustice. It may only carry into effect a previous bargain or confidence; it may only pay a debt which it was agreed or understood should be paid at all events, whether others were or not, but this bargain, or confidence, was itself unfair. It introduces into the complications of trade new elements of disturbance and jealousy, and new temptation to get the better of one's neighbor, by secret agreement, or haste or contrivance. It induces an insolvent to go on in business as long as he has enough to pay finally those who help him; because he can only fail at last, and his endeavor to put off the evil day makes it no worse when it
Hickley v F. & M Bank, 6 Gill & J. 377; Maryland v. Bank of Md 6 id. 205; Cole v. Alters, 1 Gill, 412; McCall v. Hinkley, comes. In a word, it is a most injurious principle, because it promises and it gives facilities and success to fraud. (f) * The principle of the bankrupt and insolvent laws is diametrically opposite to this, and endeavors to prevent or to cure the very mischiefs which the principle of preference causes. It is indeed almost expressed by the phrase, "aes alienum," which was very generally used, in the Roman civil
4 id. 128, Ramsdell v. Sigerson, 2 Gil-man, 78; Tillou v Britton, 4 Halst. 120; Niolon v. Douglass, 2 Hill, Ch. 443; Stevenson v. Agry, 7 Ham. pt 2, 247; Rep-plier v Orrich, id. 246; Harehman v Lowe, 9 id. 92, Hendricks v. Robinson, 2 Johns. Ch. 283, Kent. C J., M'Nemony v. Ferrers, 3 Johns 71, 84, Van Ness, J., Wilkes v. Ferris, 5 id 335; Hyslop v Clarke, 14 id. 458, Van Ness, J.; Murray v. Riggs, 15 id. 571, Thompson, C J.; Hafner v. Irwin, 1 Ired 490, Allmand v Russell,
5 Ired Eq. 183; Eastman v. McAlpin, 1 Kelly, 157; Cameron v. Scudder, id. 204; M'Cullongh v Sommerville, 8 Leigh, 415; Halsey v. Whitney, 4 Mason, 206; Lawrence v. Davis, 3 McLean, 177; Hatch p. Smith, 5 Mass. 42; Widgerv v. Haskell, id. 144; Pearson v. Rockhill, 4 B. Mon. 296; Marshall v. Hutchinson, 5 B. Mon. 305; Moffat v M'Dowall, 1 Mc-Cord, Ch. 434 i Buffum v. Green, 5 N. H. 71; Haven v. Richardson, id. 113: Atkinson v. Jordan, 5 Ham 293; Brashear v. West, 7 Pet. 608; Clark v White, 12 id. 178; Tompkins v Wheeler, 16 id. 106; RusseU v. Woodward, 10 Pick. 407; Foster v. Saco Manuf. Co. 12 id. 451; Nos-trand v. At wood, 19 id. 281; Beck with v. Brown, 2 R. I. 311; Smith v. Campbell, Rice, 352; Layson v. Rowan, 7 Rob (La.) 1; Dockrav v Dockray, 3 R. I. 547; Cameron v. Montgomery, 13 S. & R. 128; Robinson v Rapelve, 2 Stew. 86; Richards v. Hazzard, 1 Stew. & P. 139; Brown v. Bartee, 10 Smedes & M 268; Cross v Bryant, 2 Scam. 36; Howell v. Edgar, 3 id 417; Hall v. Denison, 17 Vt 310; How v Camp, Walk. Ch. 427; Marbury v. Brooks, 7 Wheat. 556, Spring v S. Car.