The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-12-08

4
Is, the failure TO make payment Of
any of his just demands for ten days
after the same shall mature" and
even such failure must, Of course, by
implication, not be the resu.t OF what
the law would recognize as the
wrongful act or omission Of the
debtor. This would practically re
quire the debtor 10 be insOlvent, TO
enable him to become a voluntary
bankrupt. And this Is the conten
ton Of counsel for the creditors-that
, the debtor must be insolvent. This
also seems reasonable, and IS sup
ported by the fact that the old law
Civil Code, Section 962) provided
that the debtor could become bank
rupt upon his own petition, only
upon finding himself insolvent," in
addition TO owing debts 10 a certain
amount. The omission Of this clause
IN the new Bankrupt Act Of 1884 does
not appear to have been made with the
intention of altering the law in this
respect. Il was probably an over
sight.
The question then is, was w. H
Aldrich insolvent? What constitutes
Insolvency? Il Is inability to pay
ones debts, but hoC and tchen2 All
the authorities agree that it Is q present
inability. 1t Is immaterial what the
prospects for the future are. In
solyency means inability to pay debts
as they mature and become due and
| payable, + without reference
to the possibility or probability, or
even certainty, that at future time,
on the settlement or winding up of
| all his the debtors affairs, his debts
will be paid in full ont of his proper
| ty. = To hold that the proba-
| bility that If the estate could be
| judiciousIy managed it would, after
| the lapse OF some indefinite time, at
| prices corresponding with its then
estimated value, produce enough to
pay the creditors, If they also would
wait and not force sales by judg-
ments and executions, is to constitute
proof of solvency within the meaning
of the law, would be ne her sensible
nor just + a man who is IN
able to pay his debts out of his own
means, or whose debts cannot be COL
lected out of such means by legal
process, is insolvent; and although it
may be morally certain that with in
diligence of his creditors, in point Of
time, he may be ultimately able to
term insolvency imports a present
improbable fot- condition CT the
the question. IF mans debts can
not be paid In full out of his property
by levy and sale on execution, he is
ordinary meaning of the word, and
particularly in the sense In which the |
word is used in the bankruptcy act"
Bump on Bankruptcy, 412; Cunning |
ham Us. Norton, 125 U. S.. n; butcher |
Us. Wright, 81 U. S., 557; Wager rs. HUI,
16 Wall, 500; Thompson Us Thompson, |
4 Cush., 127. It is clear, therefore,
that if w. III. Aldrich could |
meet his engagements only by |
waiting until his income under
his fathers will should accumulate |
to an amount equal to his indebted |
ness. he was not solvent. To hold !
otherwise would be to hold, contrary |
to both reason and authority, that |
insolvency Is a present status ev1-
denced by future contingencies. That !
would be to hold that one Is not In
solvent who, though deep in debts
and without any property whatever, |
is in receipt of a salary or other in
come, or even is capable OF earning, |
sufficient in time to pay off his ia
debtedness,-which would be unten-
able.
Was, then, w. III. AldricE able to
meet his engagements at the tim of
his petition? This raises the other
question, hon must one be able to
meet his engagements in order to be
solvent? The authorities seem agreed
that, at least when traders are re
ferred to, and when used in the sense
of the bankruptcy acts, Insolvency"
means inability to pay debts IN legal
tender. Insolvency means an ina
bility to pay debts 4" y in that
which is made + * lawful mon
ey and legal tender to be used in
the payment of debts + Pro
perry is not lawful tender In pay
ment of debts, and debtor has no
right to pay a debt with property of
any kind. Therefore, the amount Of
a traders property is of no conse-
quence, if such inability to pay ma
tured debts in lawful money exists"
Bump, ubi supra: Anderson, Law
Dict; Cent. Dict; Am. u Eng. En-
eye; Title insolvency. GuaSed by
this standard w. II. Aldrich certain
ly was insolvent.
But Insolvency" has another, a
popular meaning. "It is sometimes
used to denote the insufficiency of
the entire property and assests of an
to pay his debts Dump,
S12) whether by direct
of his property among
his creditors or by sale under legal
process. No case has come to our
knowledge in which the word has
been construed in this sense when
used in connection with bankruptcy 1
acts, although it has been said that
1.-The term may, perhaps, have a less
meaning" when applied to
other persons than when applied to !
traders (Toof vs.. Martin, Ii Wall. AZ,
in which it was held that ''if the
TRADERS could not pay
their debts In the ordinary course of
business, that is, in money, as they r
fell due. they are BANKRUPTCY The
l.. '