The defective state of the law respecting the issuing of mesne process, and the frequency of Insolvency Acts, rendered some such court as this necessary; although it might have been better to revise the laws altogether respecting debtor and creditor, and the proceedings to recover debts. It was established near five years ago, for five years, as an experiment, being chiefly founded on the cessio bonorum principle of the law of Scotland;—after three mouths' imprisonment a debtor being entitled to petition for his discharge out of prison, on condition of surrendering all his effects for the use of his creditors. This discharge, if it should not be conditional on the grounds of extravagance or fraud having been committed by the debtor, releases the person, but any property that can be traced to him, although it may have been subsequently acquired, is liable to the payment of his debts. The person is for ever released, but property never, so long as any debts remain unsatisfied, where there is unconditional discharge.
The acts constituting the insolvent debtors' court contain the regulations for its guidance, and appoint a commissioner to carry them into effect. The construction to be put upon these laws are left to his sole discretion;—there is no intervention of a jury;—and thus the court partakes of the mingled principles of law and equity—having specific regulations to enforce, at the same time possessing a large discretionary power.
How far the principle of releasing the person and fixing the property of a debtor have answered the expectations of the supporters of this change in the practices of the common law, we shall not pretend to decide, in an impartial matter-of-fact work like the present; but to assist others in coming to a conclusion on what so materially affects credit and the interests of trade in general, the following facts may not be unacceptable;—they are drawn from the Commons' Report on the subject, which the house ordered to be printed, a very short time after the constitution of the court:—
February 1, 1816, there had then been presented 7,509 insolvent debtors' petitions;—of these 1,419 were withdrawn in consequence of the 54th Geo. III.; so that 6,090 petitions remained.
Of that number 5,511 had been heard, determined, and discharges ordered. There were 186 petitions remanded, and 393 not finally determined; which made up the 6,090 petitions.
The amount of debts in the schedules of
petitions withdrawn, was............................£1,132,171
Ditto of the petitions remanded.......................220,669
Total gross amount of the schedules of all the petitions presented...................£5,598,574
On the other side of the statement, we find that assignees of the effects of 500 out of the 5,511 debtors had been appointed; and that the assignees in 65 of these cases had made returns to the court. The gross amount of their returns was not 1,500l.; it was 1,499l. 4s.
According to statements made in the House of Commons in February last, founded on the above, and subsequent Returns to March 1817, there had been liberated about nine thousand persons whose debts amounted to nearly nine millions; and the average dividend resulting from the property given up to the creditors was a quarter of a farthing and half a farthing in the pound! Mr. Alderman Waithman, arguing from what had passed, declared that by the time this act expired there would be liberated 14,000 persons and fifteen millions of debts,
In the course of the examinations which took place before the house of commons, the imperfect state of the laws affecting debtor and creditor were made still more manifest, as will appear from the following singular document extracted from the evidence of Mr. Clark, the then clerk of the insolvent debtors' court, "showing how a debtor may harress a creditor," and sold from prisoner to prisoner, at sixpence each!
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Source: Leigh's New Picture of London. Printed for Samuel Leigh, 18, Strand;
by W. Clowes, Northumberland Court. 1819