The Hawaiian gazette., 1904-05-27
DECISION
BY DOLE
Federal Judge Passes
On Bankruptcy
Question.

Judge Dole rendered decision yes
terday refusing to dismiss the case OF
Hoffschlaeger Co. VS.. Young Nap, the
defendant being the Chinese who was
taken off steamer In q bankruptcy
proceeding just as he was leaving for
China.
on the grounds relied upon for dis
missal was the claim that the defend
ant was n farmer OF this the court
Esaid:
1.-THE respondent must. IN the nature
of things, be in full possession of evil
dence to disprove the negative aver
ment that he is not chiefly engaged in
farming or the tillage of the soil. IL 1t
is not true. and the petitioner Is UNI
likely to be In possession of such proof.
He has indeed given some evidence
tending to show that respondent is not
chiefly engaged in farming or the till
is now on the respondent"
Another ground for dismissal was
that petitioner had failed to prove II
debt owing 1t by respondent, a change
in name of corporation having been
made. The amount owing to the com
pany was $2663.20. A number of letters
are shown as illustrating the intentions
of the respondent. The court then
says:
THE expressions of these letters and
the absence of any intimation in any
of the letters produced, of any recogni-
ton of the debt which accrued after
the Incorporation as distinguished in
respondents mind from the debt TO the
partnership are convincing to me that
respondent fully recognized the old debt
and that the application of the pay
ments referred to, to the payment there
of, was fully in accord with his wishes
and expectations. l think it can be
said from his letters to petitioner that
the debtors application of the payments
in question was first to the settlement
of the partnership account. If 1 am
wrong in this, then there being no evil
uViiSt VI apphedtioil VI thcSS pay
ments, the creditor had the right to
make the application, and chose to APP
ply the payments to the partnership ac-
count In either case the respondent
was owing the petitioner at the date
of the petition, so far as at present
appears.
LAS to the fourth ground OF the mo-
ton, I. e. failure to prove an act of
bankruptcy, the act of bankruptcy re-
lied on Is concealing and removing on
the part of the respondent, portion
of his property with intent to hinder,
delay and defraud his creditors.
"He admits in his answer that he Is
indebted to persons within the Terri |
tory other than petitioner to an aggre-
gate amount of over one thousand dol
lars. Under these circumstances and
the fact that the court has found in this |
case that he is indebted to the petit
toner, the removal of his property as
alleged and shown was n transaction
which, in the absence of explanation,
was in fraud of his creditors, and the
burden of proof is upon him to salts
factorily explain such admitted removal
of his property from the jurisdiction of
this court. In the case of Fullings VS..
Fullings, Uederal Case No. 5,l51 a.,
the court said in relation to the con-
cealment of bonds by the respondent
just previous to filing petition in
bankruptcy:
In the absence of all contradictory
proof l have no hesitation in holding
that the deposit of the bonds with
Coleman was a device of the bankrupt
to get the property out of the reach of
his creditors.
In such case as the one before the |
court a petitloning creditor cannot go
into the question of what the goods are. |
or their exact ownership, of the ques-
ton of legal exemption of any of these |
goods for any delay IS likely to deprive |
him of all opportunity of keeping the |
same within the jurisdiction. The cir |
cumstances being suspicious It is for |
the respondent who has the full in |
formation In regard to every point con-
corning such goods, to make such ex-
PLANTATION as to their attempted removal !
as shall show that he was acting legal |
~ and without fraudulent intention to-
ward his creditors.
The motion to dismiss Is overruled."