Lee v. Kilburn , 69 Mass. 594 ( 1854 )

Thomas, J.

The additional statement of facts, filed by coun sel, cannot be considered in deciding upon the exceptions. That would be to revise the opinions of the learned judge upon a different state of facts from that upon which his instructions to the jury were given.

1. We think the instructions as to the validity of the sale were correct. The contract was a sale, and not a mortgage. The right of property passed to the vendee by the bill of sale. As between the vendors and vendee, the sale was good before delivery. The assent of the vendors was not necessary to the taking of possession, and their objection was unavailing. Parsons v. Dickinson, 11 Pick. 352, Macomber v. Parker, 13 Pick. 175. Riddle v. Varnum, 20 Pick. 280. The jury must have found, under the instructions, that the defendant took possession of a part of the lumber before he was forbidden by the messenger. The taking possession of part was, in legal effect, the taking possession of the whole. The possession was in time. Briggs v. Parkman, 2 Met. 258. There was no evidence that the lumber sold the defendant was part of a lot, and not severed from it, or that any measurement was requisite before delivery No such question is open on the report.

2. Upon the facts reported, we do not see that the question of the custom at Orange, as to the time of measuring lumber sold, became material. If it were, the evidence seems to us to have been competent. It is not in conflict with the statutes, for it does not appear that this lumber was brought into town by water for sale. It is only to lumber so brought, that the Rev. Sts. c. 28 apply.

3. The question put by the plaintiff’s counsel to the witness Putnam was competent, on the ground, among others, suggested at the trial. Two questions were at issue : 1st. Whether, when the transfer was made, Davis & Kilburn were insolvent; and 2d. Whether the defendant had reasonable cause to believe them to be insolvent. Upon the latter issue, it was clearly competent to show they were reputed to be insolvent.

4. The only remaining exception is to the instructions of the presiding judge as to what was the meaning of “ insolvency,” or “ insolvent,” under the St. of 1841, c. 124, § 3. It is ex tremely difficult, if not impracticable, to give a definition of insolvency that shall be found applicable to all classes of persons who may avail themselves of the benefits of the insolvent laws. It is not, indeed, the business of practical jurisprudence to give definitions or lay down abstract propositions, but to give the rule applicable to the facts proved. Even if the abstract rule for all classes be the same, the kind and degree of evidence to establish insolvency would be very different in the case of a banker or merchant, from that requisite in the case of a farmer, or one not engaged in active pursuits. The evidence which would sat- . isfy the jury of the insolvency of the former, might wholly fail to convince them of that of the latter.

It became necessary, however, in the present case, and with reference to Davis & Kilburn, manufacturers and traders, (traders within the bankrupt laws,) to state to the jury what state of facts would constitute insolvency, within the meaning of the St. of 1841, c. 124. And if the learned judge had, in the first paragraph of his instruction as reported, omitted the words, “ and their inability to pay them was so great as to compel them to stop business,” we think a definition would have been made in that paragraph, to which no just exception could have been taken.

But it is clear a trader may be insolvent, and may be known to be so to the creditor seeking a preference, though he is not compelled to stop business. Men often continue to carry on business upon the strength of the credit they have before acquired, long after they are actually and hopelessly insolvent; sometimes with the view of the better enabling themselves to make payments to preferred creditors, contracting new debts to pay old ones; sometimes with a view of living upon the property in their hands. These are among the evils which it was the policy of the insolvent law to prevent.

What may be,deemed the negative branch of the definition is also open to exception—that, though “ unable to pay their debts in the ordinary course of business,” yet, if “ their debts were not so great as to prevent their continuing in business, and they had property which, fairly and legally applied, would be sufficient to pay their debts, they were not insolvent within the statute.” We do not understand that an absolute inability to pay one’s debts at a future time, upon the winding up of his concerns, ia necessary to constitute insolvency in a trader.

What is meant by the insolvency of a trader, as an abstract proposition, can be stated only in general terms. A trader may be said to be insolvent when he is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do. Bayly v. Schofield, 1 M. & S. 338. Shone v. Lucas, 3 Dowl. & Ryl. 218. 2 Bell’s Com. 167. Herrick v. Borst, 4 Hill, 650. Thompson v. Thompson, 4 Cush. 134. This is but a general, abstract rule, modified more or less by the habits and usages of the place where the debtor resides, and of the particular branch of business in which he is engaged. Exceptions sustained.