The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-06-01

ment on the verdict Of October last cannot be a
bar, for 1t is not inconsistent with the fact that
this is a valid deed that the property should be
now disposed of, for the purpose OF fulfilling all
the conditions of the deed and the agreement,
too, namely, to pay all the debt of Padeken to
the defendant and that the residue go to those
legally representing him.
1t is argued by the plaintiffs In this action
that the accounts stated by the defendant by
which he makes his debt to be ST 600, should
be re-opened, because that interest is cast upon
interest. The statute in this Kingdom Is as
follows
Section 1884 of Civil Code. "No action shall
be maintainable in any Court of this Kingdom,
to recover compound interest upon any contract
whatever"
1t has always been holden that compound In
terest cannot be recovered on and IN pursuance Oh
an antecedent contract, but if a party would de-
hberately give a new note for interest Que by
him, such Il note would not be void as being
made without consideration. Wilcox VS.. How
land, % Pick. 100 ct passIm. Now there
can be no difference in principle between d
case where such Il note has been gwen
and where the parties have settled an account
from year to year ON the principle OF interest
going to the general account and annual rests
being made the note thus given for interest is
the evidence, not Of his having agreed to pay
compound interest in the original contract, but
OF his agreement to pay interest on the new dept
thus created instead OF paying the interest In
coin, it is paid by a note bearing interest. In
stead of borrowing the money of some one else
and giving a note for it bearing interest he bor-
rows it Of his original creditor he owes a new
debt to his creditor which he is unable to pay
and therefore gives Il note for it, whereby he
makes Il new contract which is no part OF the
original contract. So likewise an account stated
from year to year as IN this case in which interest
is charged up and made a part of the account
and which account has been accepted by Padeken
furnishes evidence that Padeken agreed to it at
the time of the account being presented to him
and if he agreed to it at the time, as a new con-
tract, he is bound by it it is no part OF the old
contract and Is a separate and distinct matter and
is therefore not in violation of the statute, be-
cause it is not a suit to recover compound interest
upon any contract.
The master may therefore take an account OF
what is due and owing the defendant, starting
with the sum found due at the settlement of the
account between the defendant in this cause and
Padeken, which is indicated in the deed OF
August, 1875, allowing him interest on that
amount from the date Of the deed and charging
him with all the livestock and other personal pro-
perty received from Padeken as we'll as with the
mesne profits Of the land. If any of the personal
property has been sold, the price at which it is
sold shall be taken as the valuation for that
which has not been sold as well as for the mesne
profits of the land, testimony may be taken if il
is necessary. The amount thus ascertained with
the interest on the receipts, valuations and mesnG
profits is to be deducted from the principal and
interest Of the debt in order to determine the
amount due to the defendant and to liquidate
this amount, a decree of foreclosure of the real
estate may be taken out according to the usual
practice of this Court. In selling the real pro-
perty, it may be divided into lots or sold in
gross, whichever way is most likely to realize
the largest sum. The defendant is of course to
be allowed to purchase at the sale, and after
satisfying the debt thus found due to the defen-
dant the balance, if any, is to be paid into
Court.
Costs to be the subject of farther adjudication
Parties may apply from time to time for further
orders and Instructions if it should become
necessary.
CHAS. c. HARRIS,
Chief Justice,
\. FRANCIS JUDD,
LAWRENCE MCCULLY.
Jones and Bickerton in person.
A. s. Hartwell for defendant.
Honolulu, May 4th, 1878.