RECORD GROUP: County Clerk
RECORD SERIES #: 1400
SERIES: Insolvent Debtors Collection
DATES: 1755-1898 (bulk 1800-1850)
VOLUME: 13.5 cubic feet
Insolvent Debtor records are cases of the Special Court of Common Pleas, held for the purpose of hearing applications of imprisoned debtors for discharge; and case files, consisting of loose papers used in Common Pleas proceedings, containing petitions of debtors, lists of debts, interrogatories put to the petitioner, discharges from confinement, and joint petitions and discharge lists, documenting 2,039 insolvent debtor cases in Monmouth County.
Although the colonists, under England’s tight control, were unable to make major changes to the laws, they did manage to make reforms in some of England’s legal procedures. One of those reforms pertained to insolvent debtors. It did not take a great deal of legal knowledge to realize if the person was confined in jail, he or she could not earn money to pay their creditors.
Early in the 1700s, the members of the General Assembly, with the consent of the Royal Governor and his Council, were able to begin gradually reforming the system for the relief of persons imprisoned for debt. By the Act of 1733, imprisoned debtors could be discharged from prison when they agreed to “deliver up to his creditors all his estate both real and personal towards the payment of his creditors.”
Under the 1733 Act, the imprisoned debtor was required to prepare, under oath: 1) an inventory of his or her real and personal estate, and 2) a list of creditors, with the amount owed to each. At that point the debtor petitioned the court to hear the case. By law, the debtor was confined in jail for twenty-days to await the court hearing. Both the petition and petitioner’s inventory were recorded by the Court Clerk and made available to the creditors.
The actual court hearing was held to determine what could be said for and against the petitioner. During the court hearing, the petitioner was required to answer and sign a four-question interrogation attesting to the fact that all inventories and lists of the estate were true and just. It was the Court’s responsibility to divide and sell the debtor’s estate to satisfy the creditors. In most cases, the debtor was released from prison. Childless debtors, under the age of forty were given the option of servitude to the creditors, for a period not exceeding seven years, to satisfy their debts rather than losing their entire estate.
Prior to 1755, the final decision for the release of insolvent debtors from confinement was under the jurisdiction of the Supreme Court, which met only two times a year in Elizabethtown. Although a creditor could appeal to several courts (Common Pleas, Quarter Sessions, or Circuit Court) for a warrant to be issued for the arrest of the insolvent debtor, only the Supreme Court had the authority to make the final decision for the debtor’s release. In order for the prisoner to receive the final decision, he or she would have to be removed from prison to appear before the judges of the Supreme Court through a writ of habeas corpus (an order by the Court to bring a party before that court or judge).
Succeeding the Act of 1733, the Act of 1755, “An Act for the Relief of Poor, distressed Prisoners for debt,” transferred the power and authority from the Supreme Court to the Court of Quarter Sessions, which met four times per year in each county. According to the 1755 law, it was causing “great inconveniences to the petitioner to be removed by habeas corpus.” By changing the jurisdiction to the Quarter Sessions courts, the writs of habeas corpus were no longer needed to process the insolvent debtor’s case. In 1795, jurisdiction was transferred from Quarter Sessions to Common Pleas, but this was the only change in the procedure until 1830.
“An Act Abolishing imprisonment for Debt,” approved February 19, 1830, constituted the first major change to the colonial insolvent debtor laws. Henceforth, no person could be confined in jail for debt, except in cases of fraud. The 1830 Act was incorporated into the Constitution of 1844, under Section 17.
The Act of 1830 stated, “any person or persons arrested shall be discharged if such person shall make out and deliver to the arresting officer a true inventory, under oath, of all his goods and chattels, personal and real estate and shall give bond (a written instruction with sureties guaranteeing faithful performance of acts or duties) to the plaintiff.” The debtor also was required to appear before Common Pleas to petition the court for the benefit of the insolvent laws. Although no longer confined in jail, the debtor was restricted to certain limits within the city, town, or borough. It was the duty of the Common Pleas court to make and layout those boundaries, where the debtor “shall have liberty to walk therein.”
Once the inventory was submitted to the arresting officer, the debtor was released. By law, the hearing was to be held within forty days after the court received the petition. During that time, the petitioner was required to prepare a list of the creditors with the monies owed to each; and to provide notices to all creditors informing them of the date of the hearing. The debtor also had to have the notices printed in the local newspapers.
The actual court hearing continued the practice established in 1733. Once all testimony was heard, it was the court’s responsibility to appoint two assignees who were authorized to divide and sell the debtor’s real and person estate until all creditors were satisfied. If, for any reason, the creditors or the Court found that the debtor had lied about the estate, the debtor was remanded to prison and was required to start the entire procedure over again.
The term “insolvent debtor” gradually was eliminated. As early as 1874, through “An Act for the relief of persons imprisoned on civil process,” approved March 27, 1874, the legislature began changing the legal description of persons unable to pay their creditors. Although the 1874 Act did not expressly use the term “insolvent debtor,” recording and filing procedures for such cases remained under the insolvent debtor classification. Pursuant to the U. S. Bankruptcy Act of 1898, all cases of persons unable to pay their creditors, or of creditors prosecuting their debtors, fell under the federal bankruptcy laws.
Two types of records are available in the series. The first is one volume, 1842-1844, consisting of the records of the Special Court of Common Pleas, held for the purpose of hearing applications of imprisoned debtors for discharge. The volume is labeled “No. 2,” but no other such books are known.
The other type of record is the case file, consisting of loose papers used in court proceedings. These files, arranged alphabetically by last name of debtor, contain such documents as petition of the debtor, lists of creditors, inventories of the debtor’s real and personal estate, interrogatories put to the petitioner, and discharge from confinement. Occasionally, one may find a statement of the person to whom the debtor’s estate has been consigned for sale to help satisfy the debts. If the debtor was released, there is sometimes a notation that he was allowed to keep a set of clothes for himself and his family members and tools of his trade up to the value of $25.
The case files also include a number of joint petitions and discharge lists, filed by the year and month of the list.
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