Cadwallader, F.J.J.; (1965) In pursuit of the merchant debtor and bankrupt: 1066-1732. Doctoral thesis , University of London.

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Abstract

This pursuit of the merchant debtor is divided into three Parts, the first two Parts deal with the enforcement of debt as a whole, with the emphasis on merchant transactions; the last Part being kept entirely to the development of the bankruptcy laws. Part One is given over to a study of the law as it stood largely prior to 1285. Chapter 1 produces a general survey of the methods of debt enforcement which bad been adopted by earlier alien societies, in order to appreciate more readily the slow manner in which English law applied itself to helping the merchant creditor. Chapter 2 deals with the emergence of the Royal Courts, and shows the pre-occupation in the first two centuries of post Conquest Law with the enforcement of Services due to a Lord,rather than with debts. Chapter 3 pays particular attention to the relationship and transactions between the King and the Jews; together with the gradual development of the Writ of Debt and its acceptance by the Royal Courts. Chapter 4 studies the means for enforcing attendance at court and the excuses which might be offered. Only a defaulting accountant is subject to bodily attachment. Even when the debtor attends, the modes of proof awarded to be performed at another day pay no attention to legal right. Chapter 5, continues, on the day appointed for proof to be made with an account of the last stage of the trial and the methods of execution at the disposal of a creditor. The recording of debts on Court Rolls, the awarding of damages and costs, the place of equity and the punishment of fraud in the early court, and the methods of debt enforcement existing in Fair and Borough Courts are all included here. Part Two records the history of debt enforcement from 1283 to l542. Chapter 6 covers the various enactments which provided special machinery for the enrolment of debts with the ready methods for enforcement of such enrolled debts, and providing imprisonment for the contumacious debtor. The Statutes Merchant, the Statute Staple, the provision for Statutory Recognizances fall within this head. The granting of the Writ of Elegit is also contained here. Chapter 7 sets out the reforms in the law which finally enable the debtor to be imprisoned on means process, providing outlawry for the missing debtor. This form of imprisonment is extended by Common Law to the judgment debtor. To safe-guard the debtor's freedom there are the provisions relating to Bail and the use of the Writs Corpus Cum Causa and Audita Querela. Chapter 8 considers the use of the fraudulent conveyance made to defeat the creditor and the manner of its adoption in relation to the use of Sanctuary. Chapter 9 surveys the many courts and varying jurisdictions of this period. Outside such jurisdictions there are the protection of the King, the Royal prerogative and the use of special privileges to be contended with. Chapter 10 shows how the petition to the King, his Council, or his Chancellor came to be used as a means of combating fraud. Chapter 11 describes the limited way in which the Legislature and the Common Law came to deal with the particular fraudulent actions of forgery, perjury and duress. Chapter 12 investigates the way in which imprisonment of the debtor is regulated. This covers the special position of the sheriff and the allowance of bail. The basic need was for the debtor to be kept safely in prison. If this was not done, then the gaoler or sheriff must pay the creditor. Chapter 13 is devoted to the position of the imprisoned debtor who must by-law live or die of his own sustenance. Gaolers extorted or extracted what they could for services; charity is the only answer to a poor debtor's survival. Chapter 14 brings this period to a close with a review of the widening mercantile horizons, the need for capital bringing with it a rebirth of usury, and the general ineffectualness of the legal machinery to deal with the increasing merchant failures. Part Three relates solely to the development of the Bankruptcy Laws. Chapter 15 shows the difficulties which were found in producing and enforcing the first bankruptcy enactment, 34. 35 Henry VIII, c.4. Chapter 16 is confined to an exposition of the way in which the courts interpreted the term 'trader' for the purposes of the bankruptcy laws. Chapter 17 discusses the various actions which, if accompanied by the intention to delay or hinder creditors, might render a debtor a bankrupt under 13 Elizabeth I, c.7. Chapter 18 completes the list of actions specifically termed 'acts of bankruptcy' up to and including the enactment of 5 George II, c.30. Chapter 19 outlines the position of the Lord Chancellor in the bankruptcy machine and the manner in which a creditor might petition for a commission to issue so that commissioners of bankrupts could be appointed. Chapter 20 follows the process from the adjudicating of the debtor a bankrupt, and takes as its subject the appointment of the assignees and their duties, and the persona who might come in under a commission as creditors in order to prove their debts. Future debts may be proved but contingent debts must stay outside. Fraud will provide a complete bar to a creditor. Chapter 21 demonstrates the wide powers given to the commissioners so that they might obtain the appearance, and make full examination of the bankrupt. Failure to comply might mean death to the bankrupt. Similar powers are given so that witnesses might be adequately exm1ned. Chapter 22 reveals the completeness of the authority given in order to strip the bankrupt of all property held by him at the time of his act of bankruptcy. There are few exceptions to this rule. Chapter 23 ends the analysis of the commission with the granting of the certificate of discharge and the rights of the various creditors to participate in the distribution of the estate after the deduction of certain allowances. The costs of the commission and thechargea of the commissioners might well render any such distribution largely illusory. Also in this chapter are included details concerning the keeping of the records of the commission and the circumstances under which a commission might be superseded. Chapter 24 illustrates the general attitude towards bankruptcy and bankrupts during this period. In a harsh, invigorating age the legislature met reality with reality and inflicted severe punishments. Although the death penalty was available to punish the fraudulent bankrupt, the provision was rarely invoked. nally comes the era of reform and the bankrupt is redeemed, to emerge a quasihonest citizen rather than a quasi-criminal.

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