The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-07-29

4 HutyfSVSVf t1tltF
Law, which looks "a tle rioI,ts rf rrefiitnrs
as well as the Obligations of' debtors. intends
what e move here says, chat insofyency sa,,ssd
DE- accomt1oda lon q, I'M iorsetnentsS I'd not
insolvency Within the meaning OF that law.
put that insol yency otherwi Use caused 81 with.
10 the law why such o distinction should
oe drawn is not recouciieabl with any we'll.
considered views Of the legal relationship OF
the parties. AZ - 3.
Congress evidently designed to have n ,,sr
chants, traders, bankers DC, keer, good fiair
commercial paper, whether thew were ma.
kers or indorsera. III through misfortune
they become insolyent, whether from the
one or other cause, the same result follows
In law and fact 1t Is then for them TO seek
the relief the bankrupt net provides. or for
Their creditors to resort to It's provisions in
order TO secure an equal distribution of the
bankrupt's assets.
1t Is unnecessary to go into the analysis SO
carefully made by Others, or to repeat the
reasons 80 forcibly urged by Judge Lowell
an re Chandler, 4 B. r., So. His conclusions
on the points at issue this court holds to be
correct. ~. -
|, The case at bar illustrates the subject,
ihe defendant savers that he is not insol.
vent, but is fully able to pay his own debts
In fuil contracted in and about his business
That averment is based on the hypothesis
that the cause of insolvency affects the
question. The liability of the defendant il,
the Staehlin notes has SO swollen his in
debtedness that he cannot aver his ability to
meet all his obligations. If his property is
to be seized on execution to pay these in
dorsements, and thereby his other creditors
suffer, the equality among creditors is de-
stroyed; and the same result would follow
If his other creditors absorb his assets to the
loss Of those to whom he is indie bted on
their Endorsements. If he cannot pay all his
Indebtedness, the law demands that his Gre
ditors shall share pro rata.
There IS one view not presented in the
argument which seems to have weighed with
no little force with some persons against the
conclusions reached, and that is, that even
supposing Staehlin were unable to pay the
uhole Of bis debts, it might be that the de-
fendant's pro rata share Of Staehljn's assets
added to his own would leave him ulti-
mately surplus. This view would apply
more strongly to the last Of the four in
dorsers: for if he took up this paper and all
four who precede him on the paper should
go into bankruptcy, it might be that his dis
tributive shares out of their respective es-
tates would nearly equal his whole liability
in these notes, leaving him far from insol-
vent ultimately. 10 this view is opposed
the evident design of the bankrupt act as to
the prompt payments by merchants, &c.
1t is not, as the United States Supreme
Court holds (apd as all the courts have held),
dependent on the ultimate income of a
merchants affairs whether he is solvent or
not, but merchant, &C., is "iusolvent" in
the sense intended by the act of Congress
when he is unable to pay his debts as they
become due in the ordinary course of busi-
ness. (Toof Us. Martin, IS Wallace, 40.)
Hence when that condition exists, creditors
are not bound to wait, unpaid, until the uti-
| mate winding up.of a merchants affairs de-
termines whether he can pay In full or not.
Were it so, the creditors might from that
delay be themselves fatally crippled. Prompt
and full compliance with the obligations
imposed by the law is what the act
of Congress exacts from all parties to
commercial paper. As some of the
courts say, Congress in this respect
adopted this general mercantile view-Viz.
That when merchant lies under protest he
has suspended payment or failed, whether
temporarily or permanently, still it is pres
ent suspension or failure. Recognizing that
view, Congress deemed it wise that such
suspension, unless followed by resumption
within fourteen days, should entitle any
creditor to cause the assets of the debtor TO
be subjected to the payment of all creditors
lawful demands-that is, when the suspen-
sion and non-resumption occur under the
circumstances mentioned at the commence
ment of this opinion.
AS this question can be reviewed by
Judge Dillon at chambers, there need be no
delay in procuring reversal if his views
diller from what arc here presented. The
doctrine ought to be settled for this circuit
as early as practicable.