Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-12-23

| therefore, the notice spoken OF In that act
to be given by the Trustee, and which, 1t
is alleged, after the lapse Of two years,
forms bar to petitioners claim, has no
application to this case, It being shown of
record in this case, that these banks have
| declared q dividend to the stockholders
and are solvent-and to sustain this, it IS
said that it is a rule of construction, well
settled, that the intention of the law makers
is to prevail over the literal sense OF the
words used, and that the Court may con-
slider the terms used, the subject matter,
the reasons, effects and purposes of the
statute in connection with the rights to be
secured and guarded, and the evils 10 be
avoided. 1t is admitted that the words Sin
all cases where any of the banks of the State
have or may hereafter make assignments"
standing alone would include both solvent
and insOlvent banks, but 1t is insisted that
subsequent words of the statute, declaring
that the funds in the hands Of the Trus-
tee shall be paid out ''rdtdbly to the cred
itOrs whose claims shall have been pre-
scented, and words of similar import, in
the second section, TO the effect that the
holders of certificates shall be entitled to
their ''ratable portion of any fund that
may be at any time distributed" restrict
the broad and general language, above
quoted, and indicate that the act was in
tended to apply only to those banks not
having sufficient assets to pay all their cred
itOrs-and provided for a ''ratable" dis
tribution of the same 1t is also insisted
that as the act makes no reference to any
surplus after paying the debt, but is silent
on the subject, and makes no provision for
its distributiOn-that this fact is entitled to
weight in its construction, as is also the
fact that the act docs lot look to or pro-
vide for a surrender of the charter-and
moreover, it is said, the Legislature could
have had no interest or particular reason
in enabling solvent banks to settle with
their creditors. Let these and their cred
itors make their own arrangements This
leads US to consider the meaning of the
words "sOlvent and insOlyent," what is
a solvent bank, and what an insOlvent
| bank, as known to the law. 1t is said,
if a bank is unable to pay demands
against it when presented at the counter,
but upon windingi. up it should be found
able to pay all its debts and leave sur
plus for stockholders, it is solvent bank.
That the test of sOlvency and insolvency
| is to be determined by the final results in
winding it up, and from the argument of
this the conclusion is inevitable, that the
statute which is intended as a means of
facilitating the winding up of a bank
and distributing their effects-and to be
applied in the incipiency of the prepare
Oh of tho
primary steps to betaken for that purpose,
is delayed to the last, aud whether or not,
it has any application, in given case,
and is of any legal effect and virtue, or
| the proceedings under il to be of any
| force, legally, depend upon how the bank
winds up. And thus the first and most
| important step taken in the inltiatOry
measures of winding up a bank is post
poned, in its legal effect and consequence,
| to the conclusion of the matter which
| il was intended to aid and facilitate. 1t
| NAV be said that the officers of the bank
avail themselves of the statute or not, as
they choose, but at their peril If they use
its provisions they pivot its legal
| effects upon the question, which time
alone can discover, how the assets stand
relatively to the amount owing. In this
view, / could not regard the act as its title
| indicates, can act to facilitate the dis
| tribution of the effects of banks among
| their creditors. No officer could look
through the registry of bank of long
standing, its debts, liabilities, contingent
and immediate-its long list of solvent,
insolvent and doubtful debtors, and tell
how it would terminate, after the lapse OF
several years of war, in which the for
tunes of its debtors were at stake-the
debtors residing, generally, in the States
made the theatres of the war. cannot
think the law makers legislated upon this
idea, and for that reason Intentionally
omitted to make the distinction contended
for between solvent and insOlyent banks.
l believe the Legislature proceeded upon
the assumption that the banks would BE-
forced to lquidate by reason of the calaml,
ties of war, and the legislation of the
Federal Government upon banks and cur
rency, and therefore, passed the act, in
tending thereby TO facilitate this conclu-
sion.
| (goS-rT r-rrr To-NORROW \