The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-02-24

IappreheDd that It is mistake to suppose
that the ONLY just motive for passing statute Of
this kind is to save the delay incidental to wait
ing the pleasure OF absent creditors" tor bank.
rupt laws are passed not only for the benefit Of
the individual who seeks to be discharged from
his debts, bat of the comuunity,-tO give to the
community in which the debtor lives, the advan-
tage Of his renewed hope. energy and enterprise,
They are based on the proposition that the debt
or, having given up all his property and being
free from imputation Of fand in the matter OF bis
bankruptcy, it is just towards him. and for the
interest of all his fellow citizens. that his future
efforts should not be hampered by his previous
debts and il Is on this last point that the credi-
tors residing abroad have no interest. The debt
or having complied with certain conditions, the
community, acting through the Legislature, pro-
hibit their courts from entertaining any further
suits against him for debts incurred before.
They might have vested the authority to dis
charge absolutely in the Court; bu, have chosen
to limit the authority Of the Court, by requiring
as last condition (all others having been fulfill
ed) the consent OF a majority Of the creditors in
number and value within the Kingdom. Thus it
will be seen that the statute does not preclude
the foreign creditors from an equal right to De
heard on the release" On the contrary, they
have right TO be heard to ofier reasons against
the discharge and if they establish eoueealment
Of property, collision with other creditors, mutt
Iation Of documents, or in general terms fraud,
discharge would not be granted notwithstanding
the consent Of the majority. 1t is only when all
have been heard, and all things have been found
to be s,night, and no further REASON can be
urged against the discharge, that the policy Of
the law comes in and says in effect; Creditors
have got oil the property Of which the debtor is
possessed, and though we limit the authority Of
our Courts to discharge by requiring the consent
of the majority in number and value Of those
resident in this country, We will limit it no fur
Their and the foreign creditors who are inaecessi-
bic to the calls of sympathy, and to whom debt
ors daily difficulties do not appeal, upon whose
mind ehagrin at having lost his debt may be and
probably is the only influence, shall not have
any vote to prevent our Court from granting our
fellow citizen his discharge.
The provisions in the treaties referred to will
be better understood and applied il quoted 10
full. The American Treaty reads as follows:
And each Of the two contracting parties enga-
ges that the citizens or subject of the other re-
siding in their respective states, shall enjoy their
property and personal security in as full and am
pie manner as their own citizens or subjects, or
the subjects or citizens Of the most favored ma
ton, but subject always to the laws aud statutes
of the two countries respectively"
1t will be seen that this provision ia about for
eigners resident in this country. This statute is
not opposed to it IN any way. II does not put
foreigners resident in this country on any differ
ent footing from native subjects.
The British Treaty reads: "The subjects Of
either Of the contracting parties in the territories
of the other. shall receive and enjoy full and per
feet protection for their persons and property,
and shall have free and open access to the courts
Of justice in said countries, respectively for the
prosecution and defense of their just rights"
1t will be seen again that this concerns foreign
ers resident within this country, and surely the
in this case are not complaining that
their persons or their property are not receiving
fu and perfect protection within the provision Of
this article. If it can be said that the discharge
Of bankrupt is Withdrawing full and perfect pro-
lection, it would be the same withdrawal if the
Court should be authorized to do so without the
Of any body; as it is, they are
to grant the discharge after having the
concurrence of the majority of the creditors in
number and value resident or being in the coun-
Try.
1t will be seen by the course of reasoning
adopted that do not regard Messrs. Williams,
Blanchard & Co., and WEIGH & Co., as being
within this Kingdom as meant by the statute,
because they are represented by power of attOr-
ley.
CHAs. c. HARRIs,
Associate Justice Of the Supreme Court.
A. s. Hartwell for contestants.
Samuel C. Allan in narson