英文法律词典 B-7

BANKRUPTCY¹. The state or condition of a bankrupt.

2. Bankrupt laws are an encroacbment upon the common law. The first in England was the stat. 34 and 35 H. VIII., c. 4, although the word bankrupt appears only in the title, not in the body of the act. The stat. 13 Eliz. c. 7, is the first that defines the term bankrupt, and discriminates² bankruptcy from mere³ insolvency⁴. Out of a great number of bankrupt laws passed from time to time, the most considerable are the statutes⁵ 13 Eliz. c. 7; 1 James I., c. 19 21 James I., c. 19 5 Geo. II., c. 30. A careful consideration of these statutes is sufficient to give am adequate idea of the system of bankruptcy in England. See Burgess on Insolvency, 202-230.

3. The Constitution of the United States, art. 1, s. 8, authorizes⁶ congress "to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies⁷ throughout the United States." With the exception of a short interval⁸ during which bankrupt laws existed in this country, this power lay dormant⁹ till the passage of the act of 1841, since repealed¹⁰.

4. Any one of the states may pass a bankrupt law, but no state bankrupt or insolvent¹¹ law can be permitted to impair¹² the obligation of contracts; nor can the several states pass laws conflicting with an act of congress on this subject 4 Wheat. and the bankrupt laws of a state cannot affect the rights of citizens of another state. 12 Wheat. It. 213. Vide 3 Story on the Const. §1100 to 1110 2 Kent, Com. 321 Serg. on Const. Law, 322 Rawle on the Const. c. 9 6 Pet. R. 348 Bouv. Inst. Index, h. t. Vide Bankrupt.

BANKS OF RIVERS, estates. By this term is understood what retains the river in its natural channel, when there is the greatest flow of water.

2. The owner of the bank of a stream, not navigable, his in general the right to the middle of the stream. Vide Riparian Proprietor¹³.

3. When by imperceptible increase the banks on one side extend into the river, this addition is called alluvion. (q. v.) When the increase is caused by the sudden transfer of a mass of earth or soil from the opposite bank, it is called an increase by avulsion. (q. v.)

BANNITUS. One outlawed¹⁴ or banished¹⁵. See Calvini Lex.

BANS OF MATRIMONY. The giving public notice or making proclamation of a matrimonial contract, and the intended celebration of the marriage of the parties in pursuance of such contract, to the end that persons objecting to the same, may have an opportunity to declare such objections before the marriage is solemnized. Poth. Du Mariage, partie 2, c. 2. Vide Ban.

BAR, actions. A perpetual destruction or temporary taking away of the action of the plaintiff. In ancient authors it is called exceptio peremptorid. Co. Litt. 303 b Steph. Pl. Appx. xxviii. Loisel (Institutes Coutumieres, vol. ii. p. 204) says, "Exceptions (in pleas) have been called bars by our ancient practitioners¹⁶, because, being opposed, they arrest the party who has sued out the process, as in war (une barriere) a barrier arrests an enemy; and as there have always been in our tribunals bars to separate the advocates from the judges, the place where the advocates stand (pour parler) when they speak, has been called for that reason (barreau) the bar."

2. When a person is bound in any action, real or personal, by judgment¹⁷ on demurrer, confession¹⁸ or verdict, he is barred, i. e. debarred, as to that or any other action of the like nature or degree, for the same thing, forever; for expedit reipublicae ut sit finis litim.

3. But there is a difference between real and personal actions.

4. In personal actions, as in debt or account, the bar is perpetual, inasmuch as the plaintiff cannot have an action of a higher nature, and therefore in such actions he has generally no remedy, but by bringing a writ¹⁹ of error. Doct. Plac. 65; 6 Co. 7, 8 4 East, 507, 508.

5. But if the defendant²⁰ be barred in a real action, by judgment on a verdict, demurrer or confession, &c., he may still have an action of a higher nature, and try the same right again. Lawes, Pl. 39, 40. See generally, Bac. Ab. Abatement²¹, N; Plea in bar. Also the case of Outram v. Morewood, 3 East, Rep. 346-366; a leading case on this subject.