The Hawaiian gazette., 1877-02-14
WEDNESDAY. FEBRUARY IA, 1877.
Supreme Court of the Hawaiian
ssIands.-OctOber Term, 1876.
JAMES WIGHT rs. W. C. JONES and r.
BICKERTOM assignees Of F. G.
PadsEeu, a bankrupt.



This is an action brought BY grantee under q
conveyance from f. g. Padeken, acknowledged
on the l4th August, 1875, to recover damages
for the value of sugar mill taken and sold by
the defendants as Padeken's assiguees in bank
ruptcy. The jury returned verdict for plaintiff
for $780,
The defendants moved for new trial on the
ground (lst) Of errors of the court in excluding
certain evidence, and in charging the jury, and
(2nd) that the verdict was contrary to evidence.
The alleged errors OF law are:
That the court erred in not permitting evil
dence to go to the jury, offered by the defend
ants, to prove the general reputation of +. g.
Padeken's insolvency at the time Of the execu-
ton Of the alleged deed, as a circumstance to
presume q knowledge of this fact on the part Of
the plaintiff OF the time.
The case of Lee sc. Kilburn Gray, 594. is
quoted as authority in favor Of admitting evil
dence that at the time of the conveyance, the
debtor was reputed to be insovent in the town
where be resided as competent evidence to prove
that the defendant had reasonable cause TO be-
lieye him insOlvent.
So also Denny VS.. Dana, 2, Cushing 100.
But in the Massachusetts Statues of l94l.
under which these cases arose, the property as
signed by an insolvent to q preferred creditor,
Soh oC ltCONtlth iuC accisutO III iscOhVuOlI
provided the creditor had reasonable cause TO
believe that the debtor was insovent.
The same provision Is incorporated in gas OF
the General Bankrupt law Of the United States
of 1861.
General reputation of insolvency might very
properly tend to show that the purchaser hud
reasonable cause to believe that such was the
fact. But in this Kingdom our Statute con-
tains no such provision. 1t reads as follows
s9IS Every assignment, conveyance, or
transfer Of his (the insolvent's) property by him.
after be shall have become insOlvent, or CON-
mitted an act Of bankruptcy, except upon good
consideration to bona-fde purchaser haviDg no
notieeiof his-insolvency or bankruptcy, shall be
void, aDdlhe property so transferred may be re-
covered and disposed of by the assignees for the
benefit Of the creditors"
II is not sufficient under our Statute to show
that the purchaser had " reasonable cause to be-
lieve" that his vendor was insolvent or had COM
mitted an act of bankruptcy, but he must be
shown to have had notice of such insolvency
or bankruptcy. General reputation 10 the place
where the debtor resided would not be evidence
OF notice TO the particular purchaser, and under
the wording OF our Statute would be inadmissi-
bic. En
1t is alleged that the court erred in instruct
ing the jury that If they find that the mill was
n uAluTt UOb uUNHdUlb NlluCuL INJURY 10 Tue
freehold, they will iud that the plaintiff was en-
titled to it under the mortgage"
What the court did charge was as follows
" If the jury find that the mill was immoveabe,
fixed to the freehold so that it could not be
taken away without injury to the freehold and
was attached to the premises at the time the
mortgage was made, then it would pass to the
plaintiff as MORTGAGE without reference to the
bill of sale. But if the jury find it movable,
then they will consider whether the bill of sale
conveying 1t was in fraud of creditors" To this
the plaintiff excepted, but no exception was
taken to this instruction by the defendants.
1t, therefore, cannot be considered now.
The third cause of exception alleged is that
the court erred in refusing the instruction asked
for by the defendant. that it was incumbent on
the plaintiff to show a consideration for the sugar
mill, outside of the mortgage consideration, as |
said mill was not included in the mortgage.
The court charged that the jury must find that
the sale of the mill was for valuable con-
sideration," and that Wight was a bOna-fde pur-
chaser, and that the consideration stated in the |
conveyance must be considered by them as suffi.
Gent unless it was rebutted. To this no excep-
ton was taken at this trial.
The motion for new trial also alleged that
the verdict was contrary to evidence in that the
testimony Of John Padeken the son Of F. g.
Padeken, shows that when the deed in question
was executed it was with the condition that it
would be returned in three months if Padeken
got over his troubles and was therefore made to
defraud, hinder or delay creditors. The jury
were properly instructed on this point, g" that
If they believed from the testimony that the deed
in question was fraudulent that is mnde to pass
the property into Wights hands temporarily
only, then they might find that 1t was given to
delay or hinder his creditors and their verdict
must be for the defendants" Now, the Jury
were either not convinced that this testimony
was true, or that it was sufficiently certain to
admit only of the construction placed upon it by
the defendants. 6-r
The testimony of Dayton and Fyfe of the
contents of letter written by Wight to Padeken
after the Bill of sale was given, il also claimed
10 sustain the testimony Of John Padeken The
etter as the witness Fyfe best remembers it,
makes Wight to say "lf you viii send me a bill
IF sale (of certain chattels) l will keep them
lloDg with the other articles of yours which
low have, for if the jackson suit goes against {
7ou it will sweep everything away and if you get
,ut Of prison, will return them to you. less ex-
1enses."
The letter would certainly tend to show collu- 8
zion of some kind, but its conclusiveness having
leen left to the jury, and the fact of its having 7
been written after the deed was given may have .
ed the jury to decide that it referred too re- |
notely to the conveyancein question, and ean (
iot say that they had no right to make this in Z
erence. {
1t is not sufficient that the evidence might IN
line the Court TO different result, for the 7
,rovince Of the jury is TO judge of the credbty /
f witnesses and the eonclusiveness of the evil s
ence, and am unable to say that the evidence c
Thich was laid before them was so mdnifesly {
II so strongly preponderated against the verdict '
hey rendered as to force the conclusion that i
hey must have been controlled by some improper O
as or have misunderstood the evidence. @
A new trial is therefore refused. 8
A. FRANCIS JuDD, S
Justice Supreme Court, presiding at the term. o
A. S. Hartwell for plaintiff; the defendants in g
erson. {
Honolulu October 3lst, 1876.
;rrnr-erv,a G,orv-f Of tho Ha1ur,SEar, H. C