Bankruptcy in the Court of Chancery, 1674-1750 Aidan Collins PhD University of York History March 2020 2 Abstract This thesis examines cases involving bankruptcy brought before the court of Chancery between 1674-1750. The historiography of pre-modern England has tended to treat bankruptcy and Chancery as two distinct areas of scholarly research, meaning that Chancery has largely been overlooked in the existing historiography of early modern bankruptcy. Similarly, the scholarship on the equitable jurisdiction of Chancery has failed to account for how the bankruptcy process interacted with the court. The thesis is the first substantial work to analyse the manner in which the procedure of bankruptcy was litigated within the court. As such, the work makes an original contribution to our understanding of early modern bankruptcy by demonstrating how an initially autonomous legal procedure came to Chancery to seek the aid or assistance of the court in the wider debt-recovery process. In order to undertake such a task, it is necessary to pay close attention to the procedures of the court, and especially to the people and processes that went into creating the documents which have survived. The thesis analyses each individual stage of proceeding in isolation — which forms the basis of the chapter structure — by paying close attention to the types of documentation created and presented to the court at these different phases in the legal process. Because each stage of proceeding required a different ordering of language in order to conform to the legal requirements of the court, we can only fully understand how bankruptcy was litigated by pausing and paying detailed attention to the types of documents created at each individual stage. Ultimately, the thesis utilises Chancery sources to reconstruct the processes around bankruptcy, making an important intervention in the use and classification of legal documents by historians, both within and outside Chancery. 3 Table of Contents Abstract: 3 Table of Contents: 4 List of Figures: 6 Acknowledgments: 7 Declaration: 8 Introduction: 9 Bankruptcy as a Legal Status 12 The Court of Chancery 27 The Historiography of Bankruptcy and Chancery 50 Social Historians of the Law 59 Chapter Outlines 76 Chapter One: Bankruptcy Pleadings in the Court of Chancery: 83 Introduction 83 The Filing and Cataloguing of Pleadings 85 The Creation of Bills of Complaint 95 The Practical Implementation of Bankruptcy 109 Conclusion 119 Chapter Two: Knowledge and Circulating Judgements of Failure in Bankruptcy Pleadings: 123 Introduction 123 The Law and the Timing of Bankruptcy 125 The Temporality of Trade in Bankruptcy Suits 132 Conclusion 158 Chapter Three: Country Depositions in the Court of Chancery, 1678-1750: 161 Introduction 161 The Taking, Filing and Cataloguing of Depositions 162 Secondary Scholarship and the ‘Unique Voice’ of Deponents 171 The Construction of Narrative in Depositions 179 Narratives of Bankruptcy and Insanity in Depositions 186 4 Conclusion 197 Chapter Four: Bankruptcy Commissioners’ Files within Masters’ Exhibits: 199 Introduction 199 Bankruptcy Commissioners’ Files 203 The Use of the Term ‘Absconding’ 227 Conclusion 243 Chapter Five: The Finality of Enrolled Decrees: 247 Introduction 247 The Implementation of Equitable Principles of Justice 252 The Finality of Bankruptcy Suits 257 Enrolled Decrees as a Stage of Proceeding 267 Conclusion 277 Chapter Six: Hancock v Halliday (1742-1752): 281 Introduction 281 Methodology 284 Hancock v Halliday (1742-1752) 292 Conclusion 307 Conclusion: 311 Conventions and Abbreviations: 325 Bibliography: 326 5 List of Figures Figure 1: Bankruptcy Procedure 13 Figure 2: Sample of Cases for Each Chapter 79 Figure 3: Cataloguing of Pleadings at TNA 86 Figure 4: Table of Pleadings 91 Figure 5: Deposition taken in TNA C11/1331/11, ‘Newton v Turner’ (1720) 213 Figure 6: Examination of Daniel Perkins, taken from the commissioners’ file in TNA C107/112 ‘Re Vyner, bankrupt: Papers relating to Sir Robert Vyner, goldsmith: London’ (1690) 214 Figure 7: Memorandum by the commissioners that Richard Shute was declared a bankrupt, made on a separate piece of paper and attached to the original file. Signed by the three commissioners. TNA, C104/226, ‘SHUTE, a Bankrupt’ (1720-1721) 215 Figure 8: A template created by commissioners in Vyner’s bankruptcy file, whereby the names of creditors and the amount due on a bond had been left blank. TNA C107/112, ‘Re Vyner, bankrupt’ (1690) 223 Figure 9: TNA C104/221, ‘Hancock v Halliday’ (c 1734 – c 1740), ‘An Inventory of Goods seized by Mary Halliday, 9 July 1735’ 303 Figure 10: TNA C104/221, ‘Hancock v Halliday’ (c.1734 – c.1740), ‘Goods to be Sold by the Assignees of the Estate and Effects of Edward Halliday’ 304 6 Acknowledgments Firstly, I would like to offer my thanks to my Thesis Advisory Panel, Mark Jenner and initially Judith Spicksley and later Laura Stewart. All three seemed genuinely interested in my research and have been enormously generous with their time, advice, and feedback. My biggest thanks go to my supervisor, Natasha Glaisyer, who has been fantastic from start to finish. Natasha seems to have an endless supply of patience, kindness, and good humour with which to discuss the cataloguing difficulties that come with undertaking research into the court of Chancery. She has continually encouraged and pushed me throughout my PhD to develop my arguments and present my work more forcefully. Natasha has given me a great amount of confidence over the years and it has been an absolute pleasure and a privilege to be her supervisee. This research was supported by the Arts and Humanities Research Council (grant number AH/L503848/1) through the White Rose College of the Arts & Humanities, and I would like to thank Caryn and Clare for their support throughout my PhD. My thanks also go to a number of friends I have made in the Humanities Research Centre. A special mention must go to Francesca Cioni for teaching me how to make a poster and formatting my work. Thanks also to Joshua Ravenhill and Amy Creighton for providing feedback on presentations, Megan Henvey for reminding me that she was away to write her thesis every afternoon, and Dorothy Hawkins for her baking and artistic talent. Finally, thanks to my family and friends back home, who in nearly 5 years as a postgraduate, have never once asked me how my work was going, as they know I don’t like ‘talking about my job’. They’ll be surprised to learn that I’m a historian. 7 Declaration I declare that this thesis is a presentation of original work, and that I am the sole author. This work has not previously been presented for an award at this, or any other, University. All sources have been acknowledged as references. 8 Introduction This thesis examines cases involving bankruptcy brought before the court of Chancery between 1674-1750. Historians of pre-modern England have tended to treat bankruptcy and Chancery as two distinct areas of scholarly research, meaning that Chancery has largely been overlooked in the existing historiography of early modern bankruptcy. Similarly, the scholarship on the equitable jurisdiction of Chancery has failed to account for the manner in which the procedure of bankruptcy was litigated within the court. This is a strange omission, as under the stewardship of Heneage Finch, the first Earl of Nottingham — who presided as Lord Keeper of the Great Seal and later as Lord Chancellor between 1673-1682 — the court took a more active role in bankruptcy proceedings, being established as the sole appellate jurisdiction.1 To clarify, this is not a thesis about the history of bankruptcy, as this would require a multi-court analysis, looking at how bankruptcy procedure was conducted outside of courts of law, as well as how it was litigated in both the common-law courts and equitable jurisdictions. Furthermore, this is not a history of the development of the equitable jurisdiction of Chancery. Rather, the thesis is the first substantial work to analyse the way in which the procedure of bankruptcy was litigated within the court of Chancery. As such, the thesis makes an original contribution to our knowledge of bankruptcy and the court of Chancery in three ways. Firstly, as the first substantial work to analyse how cases involving bankruptcy were litigated within the court, the thesis refocuses our attention on the importance of Chancery records in the history of pre-modern bankruptcy. This will enhance our knowledge of how the formal authority of the court was required in order to maintain and uphold a complex system of debt recovery. This adds a new dimension to the existing 1 D.E.C Yale, ed., Lord Chancellor Nottingham’s Chancery Cases, 2 vols. (London: Quaritch, 1957), vol.1, pp.cxiv-cxx. 9 scholarship, by showing that the level of complexity and the multifaceted nature of bankruptcy procedure — and credit networks more generally — has been overlooked, and misunderstood, in the historiography. Secondly, the thesis adds to our understanding of the social and cultural history of the period by demonstrating the manner in which parties in a suit utilised the court for their own benefit and created the documents which have survived. Particular attention will be paid to the specific and evaluative language utilised in relation to fraud, creditworthiness, honesty, and sincerity, and how these can inform us of wider social perceptions of failure. Finally, by utilising Chancery sources to reconstruct the operation of bankruptcy, the thesis will highlight the necessity of paying close attention to the procedure of the court, and the people and processes that went into creating the written documents which have survived. As the legal requirements of the court altered as the suit progressed, I will argue that scholars can only understand how bankruptcy — or indeed any type of suit — was litigated by providing background and context to the jurisdiction under discussion, the type of document being used, and finally, the stage of proceeding from which these sources have been utilised.