The Hawaiian gazette., 1884-07-30

detailed account. saying he had dissolved with
Walker and they wanted to pay mp. The bill
was soon made and delivered, and few days
after Treadway came in and It waa liked IN
amount by deduction on limo, and Treadway
said It would be soon paid. The account
stood while, and then after November LIST,
wundenbcrg. the book-keepcr and agent Of
the defendants, being directed by defendants,
sought TO settle the claim. and met Walker by
appointment, at the oilice Of Luning, who kept
his books, he being no scholar. Wnndenberg
pressed for payment. Walker wished 10 give
note at six months, and said he would then
pay Of least half the amount, Il 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 morigaged for about Sli,-
900, to two different parties, {. K. Bishop and
E Fursierau. He also said he had a claim OF
81 900 sgainsi Samuel Nowlein and about
81 200 against the Government That he was
able to pay all his debts and tended 10 do
80. WundenbuTg pressed 10 be secured by
the mortgage taken, saying the debt had stood
five months, and be wished to have the claim on
interest Luuing advised Walker not TO give
mortgage, saying that his notes bad not been
refused yet, and note Of hand ought to do.
WundenbuTg 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 swOrs he
then believed himsel.perfrctly solvent.
Soon after the mortgage was given, on jan
uary l7th, lSsi, Walker was declared a bank
rupt on his own petition which was dated
January 9Th, 1851.
A. the time the mortgage was given Walker
owed, including all mortgages, the sum Of
sis,4 Sc, and besides mortgage, SS.3e6.3l.
Mr.. Jaeger swore that the stores At auction
ought To bring Sli, 900 or Sl5,Oo0 and al the
time Of the mortgage there was due Walker
$500 fTum Samuel Nowlein aud several hun
dred dollars from the Government. No act Of
bankruptcy by Walker was shown to have
been committed when he gave the mortgage.And
Wuudenburg swnre he then believed Walker
snlvent, and better of without Trcadway.
He heard nothing Of bankruptcy till notice
published. Defendants trusted all to Wun-
denburg, and knew nothing Of the insolvency Of
Walker.
Upon these facts, had defendants reasonable
cause 10 believe Walker insolveut wien they
took the mortgage? l think not True, they
pressed for the security; but this was nat
ural act, and finally the mortgage was freely
given. Walker believed he could pay all,
aud the defendants thought he could, and there
was no intention to give or take fraudulent
preference; with more time no 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 uusOundness.
As matter Of fact he was insolyent and in less
than two 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 to his solvcncy.
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 dif-
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-
tiles
See Jones VS.. Rowland ct al, S Met, 377.
Morgan vs.. Brundetts, 5 Barnewall, and Adj
olphus, 297.
Fair measures to secure an honest debt
against debtor apparently solvent, though
slow, ought to he commended and not con
demned.
Let a decree be entered for the defendants
with costs.
FIN. Hatch for Plaintiff; Ed. Preston for
Defendaet.
Dated Honolulu. June 9Th, 1851.