Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-12-24


forced" or as it is expressed substantially
in 4 Cushing 1874; 70 Ohio 1886; Hill 654;
7 Wisconsin 1876, Insolvency, whether
applied to corporations or associations,
means a general inability to pay ones
debts, a general inability to answer IN the
course of trade, not an absolute inability
to pay ones debt at some future time upon
q settlement and winding up of all ira
der's concerns, but not being in a condi-
ton to pay ones debts in the ordinary
course, as persons carrying on trade usu-
ally do" See also other cases cited IN
Abbott on Corporations, page 4l5. The
view that have taken of this question,
as indicated above, supersedes the deter
mination of another question presented In
the argument, viz: That, in order for a
corporation to be declared solvent, 1t Is
necessary that it have not only assets sui
ficient to pay its debts proper, but should
also have sufficient to repay stockholders,
these being regarded also as creditors. 80
far, then, as the question whether the
statute of December II, 1866, includes
banks in the condition of the Union and
Planters Banks, I disagree with petition
ers, and find against that cause of demur-
er.
It is next insisted that the act in qucs-
ton is unconstitutional on various grounds:
l. Thatit is not the law of the land, and
is, therefore, viOlativc of sec. s OF the
Bill of Rights.
q That it violates sec. -, OF art.
XI.. of the constitution in this, itsuspends
a general law for the benefit of an lndi-
vidual or a class of individuals.
3. That it impairs the obligation OF
contract.
4. That the act goes beyond the RENE
DIV, and impairs the contract between the
note-holder and the bank.
5. That the act, in its nature, IS more
judicial than Legislative in its application
to these cases.
6. That it is delegation of legislative
power to the Trustee.
Here are six distinct and several allega-
tions against this act, supposed to be
based upon as many clauses of the constl-
tuition. While l have attempted, IN the
examination of the case, at chambers, to
trace out the meaning and design of each
clause of the constitution drawn in ques-
ton, and having brought myself to a bet
ter knowledge of each than | had pre-
viously obtained, and, in some instances,
to a conclusion at least satisfactory to my
own mind, l shall not now undertake a
review of the learning that the courts
here and elsewhere have exhibited on these
important subjects, or include IN this
opinion half of what myself have writ
| ten, but shall announce the conclusion
which have come to, in more brief
manner. And first let us examine the act
and the circumstances under which 1t was
passed-the latter first After the close
| of the war, it must have been evident to
| the Legislature that all or nearly all the
banks of the State would be forced tC
cease doing business, and if any one OIL
more of them preserved, through the war,
its or their solvency sufficiently TO have
continued business, Federal Legislation
would bring about the necessity. These
two causes were apparent to all; and eilhel
would have closed every bank, doubtless
in the State, unaidcd by the other.
To effect the purposes of liquidation
and distribution in some manner, there
was. previous to this act, sufficient lega
power and machinery in force, and whicl
could be brought into active operation, t
have eventually effected this design. Bu
these means were doubtless regarded a
too slow in their operation, and hence tn
act in question to facilitate" the dlstrl
button of the assets of banks among thcl
creditors. | have 10 doubt that the &C
was passed by the Legislature more at tn
instigatiOn of the banks, their officers an
stockholders, than at the instance OF th
creditors, but this fact should not detrac
from it. Many of the points suggeste
by the solicitors of petitioners, and argu
ments adduced, were, think, met by tn
| solicitors for the bank, fully on the ny
pothesis that this statute was one purel
of limitations, and on this hypothesis th
case was mainly fought, and assumIn
this to be its character, it would preseT
serious and difficult questions and aTgl
ments to be answered and overcome.
doubt much, whether they can be met
all.
If this be an act of limitation as know
to the profession, and as such the LeSl
lature might Constitutionally pass 1t,
has been decided so often that it no long
remains an open question, | must admi
here at the threshold, that | am who'll
unable to declare it open TO any OF IL
objections urged against it on constltl
tional grounds, unless it be the one res
ing its unconstitutiOnality upon the grour
, | that it delegates legislative power to Il
Trustees. trust l am not understood
admitting that a reply that a partlcul
statute is one of limitations is suthcle
reply to all constitutional objections MAJ
against such a statute.
There may be unconstitutional Statut
: of limitations-one for instance Who'll
= retrospective, or one allowing no reason
bic time, in which party could sue, SUI
= an act might well be entitled, monStru
! hOrrCnduDl in LGgGn1, but in the mai
= when an act is one purely of limitation
allowing some reasonable time before
-, forms the bar-it becomes very ditiicI
question to handle, on grounds of uncons
: nationality, and party seeking to Alta
it on this ground can well afford towand
4 over the face of the constitution before
- can find place upon which he may co
=, fidently sit down and rest.
= But it is admitted that the Legislatu
i NAV limit the time within which par
: shall prosecute a demand, whether t
: demand is to be created in future, or is
: existing demand. This is termed leg
:, lating upon the remedy, as cOntra-disti
" guished from the right. The Legislatu
may well say to parties, You may have
+ specified time within which to prosecr
y your claims and demands in the cour
u and if you fail 20 do so within the til
u 4 allowed, the courts after that time sh
=" not aid you. The State is 1
! bound to keep its courts op
u always This does appear very much Ii
" an act impairing the contract, as it tai
away all means of enforcing it, after
u lapse of certain time, and yet such an {
/, is demanded, upon the other hand, for
e repose of society. 1t has aptly been I
u nominated "statute of TepOse." If
- act in question does more than deny
y the creditor a remedy to enforce his I
IL mand. after the lapse of a certain tin
isit an act of limitation9 Acts of lin
70 tation relate. to remedies in courts.
IN To this point we have been meeting
/, various constitutional objections that hs
l. been urged against this act, by assumi
E. it to be an act of limitation, for the reas
G. that the Legislature has, by the Consti
lie ton, right to pass acts of limitatic
If more nearly thereby infringing upon CT
t tracts, express or implied, than by a
m other means Legislating upon remed
(. may, and does sometimes, come very ne
IN " up to impairing the contract by C
ting between the contract and RENE