The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1875-02-10

THOMAS SPENCER rs. EDWARD P AD4AS
Assigree Of Walker d AReH.
Before Mr. Justice JUMP. Jury waived.
This is an action of assumpsit to recover
81 ,349.07 money had and received by the de-
fendant to the plaintiffs use to wit, S7l5.96 net
proceeds of certain sugar. and S633.lI, an amount
paid to defendant by Bishop & Co.
find the following facts to be established
On the Sth day Of June, 1874 the firm of Wal
ker & Allen made q voluntary assignment oi
their property for the benefit of their creditors
to T. P. Adams, the defendant. On the 10Th
day Of June the banking house of Bishop & Co.
paid to the defendant, as assignee aforesaid, the
said sum Of S639.ll, balance cash avails of a lot
of sugar from the plantation owned by plaintiff,
consigned by him to Walker & Allen, his agents,
and by them delivered TO Bishop & Co. Bishop
& Co. had made advances of money to Walker
& Allen to pay orders drawn by the plaintiff, and
received the sugar TO discharge the Indebtedness,
and received more sugar than was necessary for
the purpose, and paid the proceeds OF this excess
over as above stated. At the date of this sale
OF sugar TO Bishop & Co., 7. Spencer, the plaIn.
tiff, owed Walker & Allen over $4,000. this
amount being over and above large amount, say
$4,000, Of Indebtedness which had been put into
the shape of promissory notes in favor of Walker
q Allen, made by the the plaintiff, and secured
by several mortgages on plaintiffs plantation, and
these notes had been endorsed over to third par
ties by Walker & Allen as collateral security for
their own notes, and the mortgages securing
SpeBcer's notes had been assigned to the endor-
sees of the notes.
Now, as to the rights the mortgages may
have under these mortgages to tie sugar manu.
factured on the mOrtgaged estate it is not neces-
sary for me to decide in this case; the plaintiff
Spencer cannot raise this question. Spencers
consignment Of the sugar to his agents, Walker
& Allen, who were also his creditors whether
secured creditors or not is immaterial was pure
ly voluntary, and whether the proceeds be applied
to the payment of his orders las it appears the
proceeds of the sale to Bishop & Co. were.) or
whether they were paid over to L. p. Adams,
the assignee of Walker & Allen, bis creditors, is
matter immaterial to him. This is not the suit
of the mortgages, and their claim to this sugar
cannot be raised here. Spencer's preference Of
Walker & Allen over other creditors is not q
matter which he can question.
In regard to the second transaction, l find that
on the Sth of July, Spencer, then being in Hon.
Olulu, in consideration of defendants agreement
not to attach the rest Of bis sugar, gave to the
defendant las assignee of Walker & Allen) an
order on his manager at the plantation for eleven
kegs and one hundred and eightyfve bags of
sugar and on the 18th July the sugar so sent
by plaintiff, was received by defendant, and the
proceeds are S7l5.96.
This was clearly voluntary payment by Spen-
Ger towards bis Indebtedness to Walker g. Allen,
and know of no principle of law on which he
can recover it back.
Let judgment be entered for the defendant with
costs.
A. francis JUDD,
Justice Of the Supreme Court.
R. II. Stanley for plaintiff; A. S. Hartwell for
defendant
Honolulu, January Both, 1875.