The Caucasian. (Clinton, N.C.) 188?-1913, 1898-07-14

make IL the criterion th1t q man can
not pay bis debts He may be in "e-
fault on his notes and his commercial
paper, or his other dues. still IL he can
come into court and show that bis pro-
perty at a'fair valuation, exclusive Of
what be has at, empted to dispose OF TO
defraud his creditors. 10 equal in value
to his debts, then he is not insolvent
and cannot be put into bankruptcy.
But on account Of adopting this new
rule of insolvency we have in con nee
tion with 1t from the necessity OF the
case, adopted different order Of proof.
We require the alleged bankrupt to
assume the burden Of proving his SOL
vency. Under the old rule and de6ni-
tion Of Insolvency it WAS very easy for
the creditor to show that the bankrupt
had not paid his paper when it was
due. II was simple thing, and hence
it was fair to charge him with the
duty Of proving such insolvency. But
under this new rule Of insolvency 1t is
more difficult, and the matter is to .
large extent within the peculiar and
special knowledge Of the alleged bank
rupt.
The question Of Insolvency under the
new rule involves, first, the number,
character and amount of debts owed
second, the location, character and
amount of property owned. These are
difficult matters to discover, ascertain
and prove for the creditor. but are easy
of disclosure for the debtor. He
can easily schedule and make known
his property and his debts. and it is by
comparing the property with the debts
that the question Of insolvency is de-
termined. There is therefore no hard
ship in adopting this rule of proof.
In the case of the fret ground of
bankruptcy, that of disposing of prop
erty to defraud his creditors, we put
the burden of proving sOlvency on the
debtor in the first instance. In respect
to the next two grounds we say that
he shall be required to appear in court
with his books and papers and give
testimony as to his property and his
debts, and then if he thus appears, the
burden of proof is on the petiti0ning
creditors. [ am not quite sure that il
was necessary to put this provision in
the bill. We have simply applied .
well-knoWn rule of evidence which
will quote from Greenleaf. 1t is very
brief:
"But where the subject-matter OF q
negative averment lies peculiarly with
in the knowledge of the other party
the averment is taken as true, unless
disproved by that party. Such is the
case in civil or criminal prosecutions
for a penalty for doing an act which
the statutes do not permit to be done
by any persons, except those who are
duly licensed therefor, as for selling
liquors, exeI cising trade or profess
ion, and the like. Here the party, ii
licensed, can Immediately show it with
out the least inconvenience, whereas,
if proof of the negative were required
the inconvenience would be very
great"
The following cases are also in point
and apply the rule invoke Gales VS..
Christie, La, 295; King vs.. Atkins,
80 La, 1865; Carroll vs.. Malone, % Ala,
525; Wolfe vs.. Noll, 62 Ala, %.
We have simply applied this we'll
known rule of evidence to this case for
the reason that we have adopted new
rule of insolvency.
will now briefly answer the Sena-
tor from Alabama. First, to be very
candid with him (and believe here in
the Senate we should be as candid as
good Methodist brethren are with one
another In campmeeting), might say
that the House cOnferees insisted very
much on this clause, and for the life OF
me | could not see that it worked q
great hardship. If man has made q
general assignment for the benefit OF
his creditors, it simply means, to use q
slang phrase, that he has thrown uI
the sponge, that he is insolvent. The
creditors are desirOus of putting him
into bankruptcy on this ground for the
reason that they think that there may
be cases where a man who makes sucf
an assignment may assign to some
near and dear friend, who may stan(
off and annoy, harass, and delay cred
itors, especially those at distance
That is their view of the case.
| But there is one advantage to which
I wish to call the attention of the Sen.
ator from Alabama. II man has mad
a general assignment under State Law
or under common law for the benefit o
his creditors, he cannot get genera
discharge from all his debts. His es
tate is distributed, but he is still hold
en- for the unpaid debts; whereas If b.
goes into bankruptcy and has in Othe
respects complied with the law, he get
a complete dischuage. Whatever lit
tie burden there may be in the opinion
of the Senator from Alabama and 9th
ers of that way Of thinking in puttin
man in that condition into bank
uptcy, it is more than made up In m
mind by the fact that in bankruptc
he can get an entire release from a.
his debts and obligations and begi
life over again free man.
In respect to the matter of impris
onment, there were four grounds i
the House bill authorizing the impris
, onment of the bankrupt. We have n
duced the grounds to two. The first
where q bankrupt has concealed hl
| property from his trustee after pro
: ceedings have been instituted. That
T q species of embeZzlement. The Otht
l case is where bankrupt has commit
8 ted perjury in his statement, has swor
t falsely to an account. I do not thin
J. it was necessary to incorporate that
. this bill, for we havea general statu,
e in relation to perjury, but it is put il
: to the bill for the purpose of extra pr
e caution and because the House col
t ferees desired it.
e We have provided punishment fl
e the referee for maladministratiOn, ar
O so for the trustee. Then we have pr
/, vided punishment in a case where
e creditor makes false claim. That
y nothing but a form Of perjury.
We have covered also another cas-
r We have made it criminal for anyb0t
e to attempt to extort money for actir
q or forbearing to act in bankrupt
g proceedings. In other words, we
e nat want it to be in the power OF
q creditor or shyster lawyer to 90
e the wife or the relatives or friends O
d bankrupt and say, "Here, will p
n your relative or friend into bankruI
Is cy unless you pay me 50 and SO, unle
1e you become responsible for his debt
10 We have made it a criminal offense
IS order to prevent thing Of that kir
y So, that If q man is unfortunate enOu
to be insOlvent ard liable to bankrul
a cy proceedings, no UNCONDITIONAL
er creditor or shyster lawyer can 60
a. his wife, if she has little property,
ut to his mother or father and say, 81 y
ne put him into bankruptcy unless y