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

should not be demanded until the expiration Of
Eve years, is no bar TO q suit brought before the
lapse OF longer period" This is taken from
Dow vs.. Tuttle, Mass Ala, and in this case the
agreement was in writing and contemporaneous
with the note, and might very properly have been
construed as part Of the original transaction, yet
the Court held il no defense.
10 Parker vs.. Russell, II Pick. $50, "A maker
Of promissory note. after it became due, entered
into parol agreement with his creditors and F.,
BY which it was stipulated that F. should from
time to time receive the makers wages from his
employers as they became due, for the benefit Of
his creditors, and that the holder Of the note
should receive payment of the note in monthly
installments, through the hands of F, and should
not commence an action against the maker go
long as the agreement: should be complied with.
Two installments we're paid. 1t was held that
such agreement did not constitute legal defense
to 40 action upon the note by such holder"
In Allen VS.. Kimball, % Pick. 473, note was
made, but before it was payable the holder, for
good consideration. agreed verbally that be would
not consider it as due until the expiration of
two months from the time Of its original matu-
rity, and it was held that such agreement, being
executory, was not bar to an action commenced
on the note BY such holder before the two months
had expired. Perkins vs. Gilman, Pick. 229
covenant by the payee of promissory note not
to sue the maker within limited time, cannot
be pleaded in bar to an action brought within the
time BY person to whom the note was endorsed,
after 1t became due.
In Munroe vs. Perkins, 9 Pick. 29s, it is laid
down that contract may be waived by paro
agreement, if the new agreement shall be execu-
ted.
The case of Harris Vs. Brooks, 81 Pick. 1876, !
is cited as authority in favor of the position |
that the defense at bar is good.
10 this case there was parol declaration by
the holder of promissory note to the surety, |
after the note had fallen due, that he would ex-
onerate the surety and look to the principal,
aud this was held good defense in an action by
he holder against the surety. This was an ae-
note entirely for the benefit of the
principal, and the surety had expressed to the
holder his willingness to pay it because he could
hen get security of the principal; but the holder
'erbaly discharged him and agreed to look to the
principal and the Court held that as this declar-
tlon lulled the party into security, and prevent.
ID him from attaining his indemnity. it would be
fraud on the part of the holder afterwards to
all on such surety for payment
This case bears no resemblance to the case at
ar; Spencer has not been ued into any seen,
ity BY Louisson's promise, nor has be lost his
ieans of obtaining indemnity on this note, for
here is no surety in this case from whom to OBJ
ain indemnity, and he is liable as principal in
ny event.
Louisson's promise then is a mere nudun. pac.
is no consideration for It,-for Mac :
'rlane makes him no promise; and Spencer {
romised to pay by the terms of the note, and
is new promise to pay him by installments is no
etter; and the new contract il a contract at all,
only executory and has not been executed.
Upon careful examination of the testimony {
I'd reviewing Of the principles of law applca- C
e, | am of the opinion that the petitioners n
i've shown good claim against Spencer, and c
lat no defense either in law or in equity has
zen established. ! must therefore decree and o
Judge Thomas Spencer to be bankrupt /; bat /
express no opinion as to the right of bis as L
gnees, when they shall be elected, to the posses I
On of the sugar estate. on the priority of any
the liens or claims, as being matters upon e
iich evidence has been put into the case Incl II
ntally. n
A. FRANCIs JUDD, q
Justice Supreme Court Q
Honolulu, Jan. 18th, 1875 AZ