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Last week was reading week at the University. The week provides a welcome break in the lecture series when students and tutors alike can pause for quiet reflection. They can also catch up on some reading. Two exciting sources on the history of our subject made up the grist for my reading week mill.
(1) Blackstone on Bankruptcy
Professor Wilfred Prest's July 10th 2007 Selden Society lecture has now been published (Prest, W. Blackstone as a Barrister. Selden Society Annual Lecture. Selden Society, London, 2010). The published lecture includes a very exciting reference to a counsel's opinion drafted by Dr William Blackstone (10 July 1723 – 14 February 1780; pictured). Blackstone discusses bankruptcy in his famous Commentaries on the Laws of England (see here), but this opinion is an exciting new primary source for our consumption. The citation is: "1753 (8 Octt) bankruptcy (Oxford University Archives), N.W. 4.7) & Northamptonshire Record Office, Langham (Cottesbroke) Collection, L (C), 447/1-18." Professor Prest cites the opinion and the question that elicited it at page 24 of his lecture. The learned Professor notes:
"If the Assignees under this Commission [of Bankruptcy] will be intitled to call upon & recover from the University the Money so raised by virtue of the above Distress, provided the said Edward Bateman was duly declared a Bankrupt as above stated."
Professor Prest than summarises Blackstone's responses as follows:
"Blackstone's brief response occupies the second page, signed and dated from 'Oxford, 8 Oct, 1755' Its first paragraph confirmed that if the university had indeed siezed the goods of a legal bankrupt, those appointed under the commission in bankruptcy would be entitled to reclaim any monies raised from the sale of the defaulting tenant's goods."
Blackstone's own words are then given:
"on the other hand (for the Security of Landlords) the statute 5 Geo II, c.30 enacts That no Farmer, Drover, or Grazier, shall (as such) be entitled to be deemed a Bankrupt' (a privillege reserved for bona fide merchants and traders)."
Professor Prest concludes:
"So the University was advised to look closely into Bateman's circumstances, in the hope that the original commission of bankruptcy could be set aside."
Blackstone discusses the definition of trader in the bankruptcy context at length in his Commentaries on the Laws of England. See Book 2, Chapter 31, Of Title by Bankruptcy, at paragraphs 6, 7, 8.
(2) Lobban on 19th century company law, bankruptcy and imprisonment for debt.
Professor Michael Lobban's contribution to the latest Oxford History of the Laws of England is a remarkable addition to our subject. The subjects of, inter alia, company winding up, bankruptcy and insolvency and imprisonment for debt are included in volume XII (Private Law, Part III: Commercial Law) of the Oxford History of the Laws of England (1820-1914). In particular you will need to turn to the following pages to enjoy the erudite expostion:
• company winding up, pp.647-652
• bankruptcy and insolvency, pp.779-823.
• Consumer Credit and Debt (includes imprisonment for debt), pp.834-869.
Priced at £450.00 the latest three volume set is on the expensive side. The material contained within the pages is however priceless!
"This is the ultimate statement of where the law on IVAs is to be found in our great common law...