Insolvent debtor case 1848

[Jandal66]

Hi all,

I have a relative who was put in prison in London in 1848 as an insolvent debtor.  I have managed to collect quite a bit of information about this episode, and have learned quite a lot about the law relating to insolvency and bankruptcy at the time, but am struggling to piece together what is likely to have taken place.

The relative was a ship's captain, who had settled in New Zealand.  He returned to England, most likely to collect his teenage daughters who he had left behind some years earlier, when it seems that his creditors (who it looks like he owed a substantial amount - over £1500) caught up with him.  He was due to leave Britain as captain of a ship in November 1848 so my suspicion is that they had him imprisoned to prevent this happening.  From records that I found at the National Archives, it looks like he was committed to prison for 6 months - after which he did return to New Zealand as captain of a different ship (with his daughters).

Some of the questions I have are things like: why was he treated as an insolvent debtor rather than a bankrupt given the scale of his debts and the fact that they were incurred in the course of trading?  Would he have had to sign over all his property (he owned land in New Zealand by that time) and future earnings to his creditors?  What was the deal for getting out of gaol?

The phrase "there is no property given up to creditors" and the fact that he appears to have been imprisoned for 6 months (when the predominant ruling in the books that I looked at was "discharge forthwith") suggests to me that he may have served time in prison rather than hand over his property to creditors.  But I could be completely wrong about that!

Any light that people with more experience could shed on this episode for me would be hugely appreciated.

I have copied the material I have collected below.

Many thanks


London Gazette, 17 November 1848
On Monday the 4th December 1848, at Ten o'Clock precisely, before Mr. Commissioner Law. David Smale, formerly of Readland, near Bristol, afterwards of Cumberland-terrace, Bristol, formerly Master and Part Owner of the schooner Veloa, and the ship Chelydra, both of the port of Bristol, afterwards of Auckland, New Zealand, afterwards of Poppa Conra, near Auckland aforesaid, Merchant and Farmer, afterwards Master of the ship Mary Catherine, of the port of London, trading between London, Sydney, and New Zealand, afterwards of No. 15, Gothic-place, Commercial Road East, and late of No. 31, Hermitage-street, Wapping, both in Middlesex, Master Mariner.
https://www.thegazette.co.uk/London/issue/20916/page/4165

City of London Trade Protection Circular, 18 November 1848,
Smale, David, Hermitage-street, Wapping, Master Mariner, 4 December, at ten, before Mr. Commissioner Law.
https://www.britishnewspaperarchive.co.uk/viewer/bl/0002418/18481118/150/0021

City of London Trade Protection Circular, 18 November 1848,  Prisoners’ [C]ases.  SCHEDULES FILED, NOVEMBER 15th.  SMALE DAVID.
This insolvent is described as of Hermitage-street, Wapping, Master Mariner.  His petition was filed on the 11th November.  The earliest debt in his schedule was contracted in 1833,  The amount of his debts is 1,696l. 5s 2d.  He has bad debts owing to him of 570l.  Causes of insolvency is bad debts, interest on money borrowed, and loss by his ship.  There is no property given up to creditors.  Attorney, Charles McDuff, Castle-street, Holborn.  No. of Schedule 60,304.

https://www.britishnewspaperarchive.co.uk/viewer/bl/0002418/18481118/067/0010

London Gazette, 21 November 1848 https://www.thegazette.co.uk/London/issue/20918/page/4239
THE COURT FOR RELIEF OF INSOLVENT DEBTORS. Saturday the I8th day of November 1848. ORDERS have been made, vesting in the Provisional Assignee the Estates and Effects of the following Persons: On their own Petitions
David Smale, late of No. 31, Hermitage-street, Wapping, Middlesex, Master Mariner —In the Debtors' Prison for London and Middlesex.

Morning Advertiser, Tuesday 19 December 1848,  INSOLVENT DEBTORS COURT, Portugal street.  (Before Chief Commissioner Law, at Ten.)
Adjourned Hearing – David Smale

https://www.britishnewspaperarchive.co.uk/viewer/bl/0001427/18481219/064/0004

Also the following records in the National Archives:

B8/24 (Town indexes 1848)

Smale, David; Master Mariner, Merchant & Farmer, Case No. 60304

B6/70
Gaol: Debtors G. L?
No. of Petition: 60,304
Name of Insolvent: Smale David
Trade or Profession: Merchant & Farmer & Master Mariner
Date of Petition: 11 November
Date when schedule filed: 15 November
When case to be heard: 4th December
Attorney for insolvent: McDuff
Adjudication of court and when made:  19 December 1848
Actual discharge when to take place:  6 mos. S76

[Watson]

"Some of the questions I have are things like: why was he treated as an insolvent debtor rather than a bankrupt given the scale of his debts and the fact that they were incurred in the course of trading?"

To qualify as a bankrupt, you had to be a trader, owe more than a certain amount - at one stage it was £50 - and you had to petition the court.

[Jandal66]

Hi - thanks for replying.  This is exactly my point - he was definitely a trader, and his debts were over £1500 (so well above any threshold which I think was £20 at the time).  My understanding is that bankruptcy was a less painful process than becoming an insolvent debtor, so it is mysterious why he ended up in the latter route.

[Rena]

We have to look at the then current law, which was:-

"Insolvent debtors were individuals unable to pay their debts. Only after 1861 could insolvent debtors apply for bankruptcy."

He'd obviously "hidden" his assets abroad where he thought the long arm of the law couldn't reach
him.

**

The American civil war affected European shipping,  the North Americans blockaded the southern American ports.  My Glaswegian gt. grandfather lost his business due to lost sales.  His creditors held a meeting and decided  that my gt. grandfather was a long term well respected trader.  They apportioned tasks to each creditor. Some pursued bad creditors that my gt. grandfather had.  I recall one woman had bought an £11. book 8 years previously and when the creditors wrote to request payment she sent the book back saying she didn't want it anyway.

When I was researching ancestral mariners, I discovered some newspaper adverts, where the owner/captain of a ship would advertise his ship, his destination and that he would be in "X" pub/teahouse at a certain time on a certain date to take requests to carry cargo ..... oh, and the adverts stated what size canon the ship had for protection (against pirates)

[Watson]

Rena wrote: "Only after 1861 could insolvent debtors apply for bankruptcy."

I thought that from 1861 the option to apply for bankruptcy was extended to persons who were not traders.

Smale seems not to have petitioned for bankruptcy; either that or he applied unsuccessfully.

[Rena]

Rena wrote: "Only after 1861 could insolvent debtors apply for bankruptcy."

I thought that from 1861 the option to apply for bankruptcy was extended to persons who were not traders.

Smale seems not to have petitioned for bankruptcy; either that or he applied unsuccessfully.

I'm afraid the only thing I know about business and the law in earlier times is from reading Charles Dickens book "David Copperfield"; especially with regard to Mr Micawber who went to Debtors Prison.

[Andrew Tarr]

The American civil war affected European shipping,  the North Americans blockaded the southern American ports.  My Glaswegian gt. grandfather lost his business due to lost sales

Interesting you should say that - my gt-grandfather married in 1863, started a brokerage in Liverpool but was declared bankrupt in 1866 but discharged early in 1867.  I guess that may have been a contributory factor ?

[Jandal66]

"I'm afraid the only thing I know about business and the law in earlier times is from reading Charles Dickens book "David Copperfield"; especially with regard to Mr Micawber who went to Debtors Prison."


... which was based on his own family's experience.  His father - and whole family - were sent to debtors' prison.  In 1824, when Charles Dickens was 12, his father was arrested for debt and put in Marshalsea Prison.   There is a good description here:
 https://media.nationalarchives.gov.uk/index.php/the-real-little-dorrit-charles-dickens-and-the-debtors-prison/

[Watson]

I don't know whether it is possible to determine why Smale was not dealt with as a bankrupt.  I suspect not.  One major obstacle is that few records have survived for the Insolvent Debtors' Court.  He seems to have had a debt history going back a number of years.  Any dishonesty on his part could have added to his time in prison, but there is no evidence for that in the records which you presented above.