The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-02-03

Plaintiffs Petition and Bond, as required
Statnte, were fled I4th December. 1874; ordt
to Marshal to take possession of defendants pr
perry, and Summons to defendant to attend, il
sued same day, and made returnable January q
! 1875. Order was returned by the Marshal, d.
cember 2lst, 1874. On the I'd Of January, 1871
the day appointed by the Court for the hearin
of the parties on the question of the aHege
bankruptcy, Theo. II. Davies, a creditor Of sal
defendant, appeared with plea Of an equitabl
estoppel to petitioners CLAIM. The Court havinl
ruled that other creditors not parties to thi
matter, the defendant, by his counsel, adopte'
this plea, referring to sfidavits fled by said Ds
vies and by George w. MacfarIane, said Davies
Attorney in fact. Petitioners counsel demurrec
to the plea on the ground Of want of Jurisdiction
The Court proceeded to take the testimony
that the petitioners are creditors; that is. hearC
the testimony offered to support their claim anC
also the testimony offered against it, and also ties
timOny that the defendant has committed an acl
of bankruptcy. The remaining findings of fact
will appear in the decision.
A. S. Hartwe for Petitioner; r. II. Stanley
for defendant, debtor; w. C. Jones for Theo.
q. Davies, Creditor.
By THE CoUKr: am Of opinion that the tes-
timOuy shows that Thomas Spencer owes debts
to the amount Of Two thousand Dollars and
over, and that " he has refused or failed to make
payment of some (auy) of his just demands for
fen dava altar the soma had rnaturad and bod
been presented for payment to him or his agent"
Whether some Of these claims having been pur-
chased at discount, or arranged for by a mort
gage, are in position to be sued upon by the
original holders, may be questioned, but that
Spencer owes to come one money evidenced
by promissOry notes still outstanding against
him to an amount far beyond the limit required
by the Statute, cannot admit of doubt /; and
that he has failed or refused to pay them after
due demand is also undoubted.
The remaining point, the validity of the petit
TONERS claim, is more difficult of solution.
In the first place as regards the jurisdiction of
Court to hear the defense offered to the claim
1t cannot be controverted that the claim OF the
petitioning creditors must be q legal valid one
Or, as expressed in Edwin James Bankrupt Law
page 269, The debt must be of such nature
that an action at law might be brought for it by
The petitioning creditor against the bankrupt eff
/ were not So any man could be thrown into
Bankruptcy upon fictitious claims Now, in or
Ter TO ascertain whether the claim be in fact
Talid one though apparently so on its face the
Court must hear whatever defense may be offered
o 1t: The petitioners claim IN this case, is up
~ two promissory notes, each dated LIST June,
ST., for $562.25, payable in eight months, and
would be perfectly competent to plead any Of
he usual defenses to actions on promissory |
totes, as payment, forgery, set of, tender, statute
1 limitations, &c.
But it is contended that in this statutory pro-
eeding which is limited and summary the Court
annot exercise the equitable jurisdiction and take
ognizance of the plea. am of the opinion that
he case Of Kamohai VS.. Kahele (Apr Term,
S14) fully authorizes me, in considering as
'ourt Of law, the question Of the validity Of the
claim, to take cognizance Of equitable
stoppels. have no hesitation in assuming this
and must now inquire if the facts
institute an equitable estoppel. will assume
as proved that in August, 1874, Macfarlane,
ho was acting as Davies agent, who was en-
savoring to arrange defendants Indebtedness so
lat it would be safe to proceed to make him ad-
lnces and carry on his Plantation, succeeded in
sting from LOuisson, the managing partner of
e petitioners firm, promise that he would not
olest the defendant in other words that he
oud extend the time Of payment of the already
'erdue notes and receive his pay in nstallments
All of the following elements must be present
order to an estoppel by conduct or in pals.
~ There must be a representation or con- '
almeut Of material facts. {
(2l The representation must be made with a {
lowledge of the facts.
~ The party to whom it was made must {
We been ignorant of the truth of the matter. c
(4l 1t must have been made with the intention Z
at the other party should act upon it.
(5) The other party must have been induced to 8
upon it,"
BigeloW on Estoppel, PIP. $50 and AL. C
The representation or conceament must il
10 in all ordinary cases, have reference to a +
present or past state of things for if the party
Ike representation concerning something in o
future, it must generally be either a mere o
tement OF intention or opinion uncertain to the
owledge of both parties, or it will come to p
ntract, with all the peculiar Consequences of
1tract"
In Langdon VS.. Doud, 10 Allen, 433 1861 a
'tor being about to go away from the State of
'ssachusetts, represented TO a creditor that he
not intend to return, when in fact be did re-
q and was sued after the lapse of six years,
vas held that in pleading the statute of limita-
ns be was not stopped by bis representation
1 be did not intend to return.
The Court say that this representation was not
any existing fact or state Of things, but mere
IT intention. The intention of party con-
hing bis future action is necessarily uncertain.
person cannot be bound by any rule Of morality
good faith not to change his present intention.
} doctrine Of estoppel wholly fails when the
relates only to present intention
purpose, because, being in its nature uncertain
liable to change, it could not properly form a
Is or inducement upon which party could
;opablv adOnt any fxad and rarroona,, $780,.