THE BREVIER LEGISLATIVE REPORTS.
VOLUME SEVENTEEN.
INDIANA LEGISLATURE.
IN SENATE.
FRIDAY, February 14,1879-- 10 o'clock a. m.Prayers were uttered by Rev. Dr. Henry Day, of the Baptist church, of this city.
Mr. KRAMER asked and obtained leave to introduce a bill [S. 388] amendatory of the fee and salary act of March 12, 1875, so as to reduce the salaries of all State and county officials, except the governor and auditor and treasurer of State, which on his motion was referred to the committee on fees and salaries without reading.
On motion by Mr. BURRELL, the bill[H. R. 340] which passed the House of Representatives yesterday] to fix the number of senators and representatives for the General Assembly of Indiana was taken up, read the first time, 200 copies ordered printed, and made the special order for Tuesday next at 10 o'clock, a. m , at the same hour with the Senate bills on legislative and congressional apportionment.
Mr. LANGDON' offered a resolution that the auditor of State communicate to the Senate the names of foreign insurance companies which have complied with the assessment laws; also what, if any, measures have been taken against such corporations as have failed to comply herewith, their names, etc. He understood bat one of the corporations coming under the provisions of the act referred to has complied with its terms, and that but once, since the enactment of the law in 1873.
The resolution was adopted.
The committee on printing returned the bill, [S. 381--Mr. Traylor's] for the publication of legal and official matter in newspapers, with a favorable recommendation. The report was concurred in, the bill read the second time and ordered, engrossed for the third reading.
The LIEUTENANT GOVERNOR announced the special order for this hour, being the bill, [S.31--Mr. Grubbs--see these reports of February 11, p. m.] The question being on Mr. Reeve's amendment to Mr. Woollen's motion to refer the bill to a committee of three lawyers, with instructions.
Mr. REEVE referred to the present law a one under which a just administration of a live man's estate could be had; when once in the hands of the court the man is powerless to do harm. The smartest committee in this Legislature can not find anything in it that would admit of fraud under this bill, everything is placed subservient to the oath and schedule of the assignor. He has the inside track, he has the time-keeper and the bell-ringer on his side, and the creditor has to come in and prove everything. This bill amounts to an absolute and unqualified discharge from every debt the assignor owes. There is a cat in this meal tab--not that the author intended it; but that is the case. The bill is in effect an absolute and complete insolvent law, and in no sense a law made for the benefit of creditors. It is nothing like so just as the red law, the common law under bankruptcy proceedings in England, nor does it protect the creditor. The law as it now stands is an absolute trust in control of the court, within the reach of every party interested for relief. He desired the proposed reference, and when the committee reports defects in the present law he had no fears but that every senator will agree that the present law covers every conceivable right and contingency, admits of equal and exact distribution with absolute protection to the assignor and the creditors, no one of which features this bill accomplishes.
Mr. COMSTOCK: The bill has been carefully prepared. He hoped the motion to refer would not prevail. While not pretended that the bill is perfect, it should be carefully considered and receive the treatment it deserves.
Mr. GRUBBS: If this bill is no improvement on the old law. Senators can discover that at it may be considered. All the best provisions of the old law are incorporated in the bill, and it is an improvement on the old law as every practicing lawyer will say it is. Then it ought to pass.
The amendment was rejected, and the motion to refer was also rejected.
Mr. GRUBBS moved to so amend section. two as to prevent the transfer of property by the assignor to his sureties or indorsers.
page: 146[View Page 146]Mr. REEVE insisted this section should be amended so as to avoid collusion; if not, it will do more to overturn the commercial and trade relations of the State than anything else outside the old bankrupt law.
Mr. GRUBBS: Under the law as it now stands the assignor has a right to make preferences. That ought not to be possible under our law, and it is the object of this section to strike down such transactions. Before he makes his assignment his preferences will stand, and they can not he affected by proceedings in court.
Mr. BURRELL: A man ought to be rewarded for diligence. He who looks after his own business best is best calculated to take care of himself, and this section is contrary to that principle and consequently ought not to stand as it now is.
Mr. WOOD thought the section ought to pass. The old law is a nuisance, and we ought to have a good assignment law If this bill will answer the purpose the old law was intended to it ought to pass. If the creditor and debtor are both protected, what more do you want in an assignment law?
Mr. TRAYLOR objected to this section. If a man in failing circumstances desires to rob his neighbors, under this section it can be done to perfection. He could borrow money 50 days before making an assignment, give a mortgage on his real estate to secure the repayment of it, and by this section the loaner would be placed on the same terms with those debts not secured; and for that reason Mr. T. was opposed to this section.
Mr. MENZIES: The first line in the Reckon will be an element of great uncertainty and trouble. Possession is presumptive evidence of ownership of personal property. The bill is simply a voluntary bankrupt law; and all the personal property the assignor disposes of sixty days previous is swept into it. It would strike down at one blow all transactions of personal property. If the Senate passes a voluntary bankrupt law let it be stripped of uncertainty.
Mr. LANGDON: Under the present law the assigner may make preferences up to the time of his application. This second section, does not interfere with any race for diligence, as intimated by the senator from Jackson [Mr. Burrell]. The section only invalidates where a guilty knowledge is had-- where a party taking benefit under the law is par icipis criminis in a transaction for the purposes of fraud.
Mr. REEVE offered a substitute for the amendment the following: insert the words "or to any person liable to such debtor as surety or indorser, such creditor serving notice that the assignor was not the owner of sufficient property or means to pay his debts at the time, and intending to obtain a preference in his own favor and prevent an equal distribution of the property under any assignment," in lieu of the words "having notice of the insolvency."
Mr. MENZIES--Ninety-nine out of a hundred transactions are those affecting personal property, and to propose to put this element of uncertainty with all such dealings would be an outrage.
Mr. GARRIGUS: Under the provisions of this section every man would be afraid to deal in personal property; while now we have a reasonable law to set aside fraudulent transactions. This bill would make a smelling committee of everybody who buys personal property. He opposed the section.
Mr. HEFRON could see no objection to the transfer of personalty as set forth in this section. He could see no risk as the section does not contemplate that the personal property shall be effected only so far as the creditor of the insolvent is concerned. Other than creditors of the insolvent would not be effected.
The substitute was agreed to.
Then came the recess till 2 o'clock.
AFTERNOON SESSION.
Mr. BURRELL made an ineffectual motion--yeas 12, nays 22--to indefinitely postpone the bill.
Mr. KRAMER thought legislation should favor those who can not help themselves, and he moved to amend by adding a proviso that this section shall not apply to sureties where the same relate to bonds of administrators or guardians.
Mr. HEFRON failed to see the propriety or necessity for this amendment.
Mr. MENZIES though this proviso would go further than any bankrupt act ever yet has. This bill makes a proviso that, whenever a man wants to, he may commence a systematic swindle of his creditors.
The amendment was rejected.
Mr. HEFRON moved to amend by striking from the third line the words "of insolvency or." It was agreed to.
Mr. REEVE--This bill will throw the burden of proof upon the purchaser, and it would unquestionably injure more innocent persons than it would benefit deserving ones. He made an ineffectual motion to strike out the words "and sale of personal property" where they occur in the first line.
Section 2 as amended was agreed to by--yeas 22, nays 19.
Mr. GRUBBS explained that section 3 was the same as the present law, with an additional provision that a list of liabilities with the postoffice address of creditors shall be furnished.
Mr. REEVE moved to amend section 3 by requiring deeds to be recorded "immediately" instead of "ten days." Anything in the shape of colluding that law should be prevented. The assignor has no business to make a deed till it is ready to be delivered.
The amendment was agreed to by--yeas 18, nays 17.
Mr. GRUBBS explained section 6 was similar to the red law.
Mr. REEVE offered an amendment to section 8, so that the appraisement shall be based on a sale on a credit of 18 months.
It was rejected by yeas 16, nays 20.
Mr. TAYLOR, by consent, amended section 10 by the insertion of a clause empowering the assignee to make partition of lands. Under the present statute there is doubt about that power.
Mr. COFFEY offered an amendment to section 15, so as to reach the inchoate right of wives of parties availing themselves of the benefit of this act.
It was agreed to.
On motion of Mr. REEVE, an amendment was made to section 17, requiring all bills of the trustee to be allowed by the court.
MR. COFFEY moved to amend section 21 by striking therefrom the requirement of the written consent of two-thirds of creditors before the assignor shall be discharged.
Mr. REEVE moved to strike out sections 22, 23, 24, 25--making provisions for the discharge of the assignee.
Mr. GRUBBS--This raises one of the most important questions in the bill--whether the assignee shall be granted a discharge. A man after complying with the provisions of the bill should no longer be weighted down with indebtedness. We should offer that premium to an honest man who gives up all his property to pay all his debts. Justice and equity page: 147[View Page 147] demand the insolvent should be set free to begin again the work of life and build up a fortune if he can.
Mr. REEVE: Any one entitled to the name of a business man desires to live within his income, and does not look around for a loyal subterfuge under which to find a soft bed to lie down on. An honest man can always make a fair coin promise with his creditors. The law aims at justice; otherwise it ceases to be law. No such law as this should go upon the statute books, for it provisions will be pronounced unconstitutional, because it impairs the obligation of contracts.
Mr. HART did not believe the people desired a voluntary bankrupt law passed. He moved to indefinitely postpone the whole subject matter.
Mr. HEFRON still believed the provision for discharge of the honest debtor was a just and humane provision; it was a matter of public policy to relieve the burden of debt from the shoulders of an honest, energetic man. Security debts often bears a man down beyond any hope of relief, without granting a discharge by some such law was proposed in this bill, otherwise what encouragement have such to acquire property? He believed in an honest and just bankrupt law. We have recently got rid of an odious law--odious in its practice--but under the State law there should be some remedy for the unfortunate men of brains, enterprise and ability. Is there anything more just and honest than, when one complies with the provisions of this bill, a discharge shall be granted? Only those who file their claims and participate in dividends are barred.
Mr. FOSTER moved that further debate cease on this question, which motion was agreed to.
The motion to indefinitely postpone the bill was rejected.
The amendment [Mr. Reeve's] was also rejected by--yeas 14, nays 25.
The amendment [Mr. Coffey's] was also rejected.
The section, as amended, was adopted.
Mr. Reeve moved a substitute for section 28, declaring all laws in force relating to voluntary assignments repealed where in conflict with this act, in other respects this act is to be held as cumulative; and will affect no procedings pending.
It was adopted.
Other minor amendments were agreed to. The sections were severally adopted--frequently without being read; and the bill was ordered engrossed for the third reading.
On motion by Mr. HARRIS his bill [S. 131] authorizing a police judge in clues having a voting population of 16,O00 at the last gubernatorial election, was taken up, considered engrossed, read the third time and finally passed the Senate by--yeas 37,nays 60.
Mr. BURRELL offered a resolution authorizing the appointment of an additional door-keeper. The yeas and nays being taken thereon resulted--yeas 14 nays 19; when no quorum voting--
The Senate adjourned.
