The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-12-12

protect himself from attacks from his
creditors when through misfortune
or circumstances which the Law
does not regard as wrongful acts OF
omissions on his part, he is unable to
meet his engagements. The only
circumstance mentioned in Section
which, coupled with the owing of
debts to the amount prescribed in
Section 2, might enable a debtor to
become voluntary bankrupt without
taxing advantage of his own wrong.
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 result of what
the law would recognize as the
wrongful act or omission of the
debtor. This would practically re-
qulre the debtor to 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
lClyll Code, Section 962) provided
that the debtor could become a bank
rupt upon his own petition, only
upon finding himself insolvent," in
addition to owing debts to 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. 1t was probably an over
sight.
The question then is, was W. H.
Aldrich insolvent? What constitutes
insolvency? 1t is inability to pay
ones debts, but h0p and schen? All
the authorities agree that tits present
inability. 1t is immaterial what the
prospects for the future are. in.
solvency 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 out of his proper
ty. To hold that the proba-
bility that if the estate could be
judiciously 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 neither sensible
nor just. + A man who is un-
able to pay his debts out of his own
means, or whose debts cannot be col
ected out of such means by legal
process, is insolvent; and although it
nay be morally certain that with in
lulgence of his creditors, in point of
lime, he may be ultimately able to
satisfy his engagements in full. The
ERIN insolvency imports a present
to pay. The probable or
future condition Of the !
,arty in this respect does not affect ,
he question. If a mans debts can
lot be paid in full out of his property
" levy and sale on execution, he is ,
nsolvent within the primary and r
rdinsry meaning of the word, and /
PARTICULARLY in the sense in which the t
7ord is used in the bankruptcy act" !
Bump on Bankruptcy, 412; Cunning =
am Us. Norton, 125 .. s.. n; butcher b
,. Wright, 81 U. s., 557; Wager Us. Hill, \
Wall, 500; Thompson Us. Thompson, n
Cush., LIT. 1t is clear, therefore, +
nat if w. H Aldrich could n
leet his engagements only by j,
'aiting until his income under r
is fathers will should accumulate q
, an amount equal to his indebted a
ess. he was not solvent. To hold h
therwise would be to hold, contrary n
|, both reason and authority, that Il
Isolvency is a present status evil n
snced by future contingencies. That !,
ould be to hold that one is not in h
,lvent who, though deep in debts a
Id without any property whatever, il
in receipt of salary or other in h
me, or even is capable of earning, m
Efficient in time to pay off his in 81
,btedness,-which would be unten- n
lie. n
Was, then, w. H. Aldrich able to al
eet his engagements at the time of re
s petition? This raises the other in
iestion, hon must one be able to as
eet his engagements in order to be M
lvent? The authorities seem agreed CT
at, at least when traders are re. 81
rred to, and when used in the sense b
the bankruptcy acts, Insolvency" e,
cans inability to pay debts in legal "
nder. Insolvency means an ina la
Iity to pay debts = 3 in that W
lich is made = lawful mon So
and legal tender to be used in M
e payment of debts. 3 3 Pro DC
rty is not lawful tender in pay Of
ant OF debts, and debtor mas no in
INT to pay debt with property of err
y kind. Therefore, the amount of re-
RAIDERS property is of no conse- De
ence, if such inability to pay ma wi
red debts in lawful money exists" of
INN ,tbS e,,nr1 An1orso, - -