The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1884-07-30

detailed account, saying he had dissolved with
Walker and they wanted to pay up. The bill
was soon made and delivered, and few days
after Treadway came in and il was fixed in
amount by deduction on lime, aud Treadway
said It would be soon paid The account
stood while, and then after November lst
Wundenberg, the book-keeper and agent Of
the defendants, being directed by defendants,
sought to settle the claim. and met Walker By
appointment, at the Office Of Luning, who kept
his books, he being no scholar. Wundenberg
pressed for payment. Walker wished to give
note at six months, and said he would thea
pay at least half the amount, if not all, with
interest. Walker said he had the leasehold
interest referred to, two stores being rented at
500 dollars each, and the other held at same
rent, but they were mortgaged for about SILL
600, to two different parties, [. Il. Bishop and
+. Fursterau. He also said he had a claim Of
$1,000 against Samuel Nowlein and about
81 200 against the Government. That Inc was
able 10 pag all his debts and intended to do
SO. Wundenburg pressed 10 be secured by
the mortgage taken, saying the debt had stood
i've mouths,and he wished to have the claim on
interest. Luning advised Walker not TO give
mortgage, saying that his notes had not been
refused yet, and note Of hand ought TO do.
Wundenburg proposed TO collect and apply
rents of stores. Walker said there was no
necessity for that. No other debts owed by
Walker were spoken Of. Walker swore ne
then believed himselEperfectly solvent.
Soon alter tue mortgage was given, on JAN
uary 18th, 1881, Walker was declared a bank
rupt on his own petition which was dated
January 18th, 1884.
Az the time the mortgage was given Walker
owed, including all mortgages, the sum Of
Sls,4s9. sc, and besides mortgages, $5,396.3l.
Mr.. Jaeger swore that the stores at auction
ought to bring Sl4, 900 or Sl5,OO0 and at the
time OF the mortgage there was due Walker
$500 from Samuel Nowlein and several hun
dred dollars from the Government. No act Of
bankruptcy by Walker was shown 70 have
been committed when he gave the mortgageand
Wundenburg swore he then believed Walker
solvent, and better off without Treudway.
He heard nothing of bankruptcy till notice
published. Defendants trusted all TO Wun-
den6urg, and knew nothing Of the insolvency of
Walker.
Upon these facts, had defendants reasonable
cause 10 believe Walker insoIveut wien they
took the mortgage? think not True, they
pressed for the security; but this was nat
ural act, and finally the mortgage was freely
gwen. Walker believed he could pay all,
and The defendants thought he could, and there
was no intention to give or take fraudulent
preference; with more time he might have
paid ALL
up to time OF mortgage no sign of Walkers
being pressed for debt was shown. There
were no public indications Of his unsoundness.
AS matter OF fact he was insolvent and in less
than ;wo months time petitioned as bankrupt,
but this alone is not enough to set aside the
mortgage. He did not keep his own books
and did not really know his own condition.
do not think there was sufficient shown
to put defendants on inquiry as to his solvency.
They acted in good faith, and should be al
lowed to retain their security.
Under the insolvency laws of most Of the
United States preferences can be given.
The bankruptcy Statutes of England, and
OF America, when in force, are somewhat diff
ferent from ours, and the cases under them
are not strictly reliable as authority, but an
alogous cases are to be found in both coun-
tries.
See Jones VS.. Rowland ct al, Met, s77.
Morgan vs.. Brundetts, 5 Barnewall, and Adj
olphus, 297.
Fair measures to secure an honest debt
against debtor apparently solvent, though
slow, ought to be commended and not con
demned.
Let decree be entered for the defendants
with costs.
F. NJ. Hatch for Plaintiff; Ed. Preston for
Defendaet.
Dated Honolulu, June 9th, 1881.