The Hawaiian gazette., 1882-02-15
General ,lnrrriandfse.
RF HUI a RR "a 8 ?
Supreme Court OF the Hawaiian ISLANDS,
In Banco. january Term. 1852.

7. SPENCER, JR., by T. SPENCER, his next
friend and guardian, vs.. W. c. PARKE.
Jupp, C. J., McCuLLY and AUSTIN, J. J.
OPINION oP THE COURT by AUSTIN, J.
This is an action Of replevih tried in the
Court below before Mr.. Justice Judd and n
jury.
The plaintiff had recovery of part Of the
property claimed specifically and of half of the
residue thereof From this verdict and tie
Judgment entered thereon the plaintiff dis
seats. and files his bill of exceptions.
The defendant justified the seizure and de-
tention of the property claimed by the plaintiff
under an order issued in the bankruptcy pro-
ceedings against Thos. Spencer.
All the proceedings in bankruptcy, in that
case, were put in evidence, including the petit
ton, the adjudication of Thos. Spencer a
bankrupt, and the appointment OF his assignees.
The plaintiff excerpts TO the validity Of the
petition because sworn to by purported agent
Of the creditor under power Of attorney not
sufficient to authorize the oath or the taking of
the proceeding in bankruptcy or the filing OF
the bond therein required.
On looking at the power " attorney It au-
thorizes the attorney TO take all lawful means
by suit or otherwise, for the recovery OF debts
due Andrew WEIGH, the party granting the
power, and 20 compromise, agree for, and
settle tire same, and to make, seal and deliver
such acquittauces, receipts, discharges, salts
faction Of mortgage and other Instruments as
may he necessary or proper in the premises.
We have no doubt this power authorized P.
C. Jones, the attorney by substitution for
WEIGH, to proceed in bankruptcy against Thos.
Spencer and to give the bond required. The
oath was taken by Mr.. P. c. Jones, the attor-
new in fact, for the petitiOniEg creditor. Tins
was sufficient under Sec. 963 of the Civil Code,
and in analogy to Sec 1899 as TO oaths in civil
actions There is no requirement that the oath
shall be personally made by the party III
interest.
The proceeding was therefore properly be-
gun. The Court acquired jurisdiction, and the
subsequent proceedings are regular.
The plaintiff asked the Court to charge the
Jury that the defendant was required TO show
d. nora that Thomas Spencer was a bankrupt
and was properly SO adjudicated. We think
the record was proof of the regularity Of all
the proceedings taken, and no proof against il
was made or probably could be made by the
plaintiff. The objection technical. The
assigness in bankruptcy are not required TO
fgh; over anew upon every claim made against
their estate as assignees, their title to act as
such.
Under the Bankruptcy Act Of the United
States lately repealed, the record made
presumptve proof Of all the proceedings, and
a certified copy of the assignment conclusive
proof Of the title Of the assignee to the prop
erty of the bankrupt and his right to sue
therefor. BY virtue Of the assignment and adj 4
publication in bankruptcy the title OF the bauk-
Tupt to all his property, including property |
conveyed in fraud Of creditors, aud all rights /
in equity, are at once vested in the assignees, (
relating back to the commencement Of the pro-
ceeding in bankruptcy. Bump on Bankruptcy, |
Pr. 3il, 80, 4s6, 43s, i73, 1872 United States
Statutes at Large, Secs. i992, 50ii, 50i6, 50f7,
5OI9.
Without these special provisions the proper
commencement Of the proceeding aud the for
nal adjudication aud assignment would have
been held conclusive as TO all the world as to
the right of the assignee to stand in place Of
the bankrupt and his creditors as to all his
assets. Thereby no possible injury could arise
TO the plaintiff. The presiding Judge properly
so held on the trial below
As matter Of fact proving Thomas Spencer
n bankrupt did not prove him insolveut and
show title for the creditors in this case and
other proofs were required aud were made.
The plaintiff also claims that the return Of
the defendant as Marshal admits the goods re
plcvied TO be the property of the plaintiff
and that thereby he is estopped from denying =
it. The order commanded the Marshal to take
possession Of all the property OF Thomas
Spencer, doing business under the name Of
Thos. Spencer, Jr., at Hilo.
Under that order the defendant took the q
property in question. He labels his return +: "
" Inventory Of goods aud merchandise sliced
January 10th, lssl, in the store Of Thomas !
Spencer, Jr,, by order OF Supreme Court" !.
The return proper says, by virtue Of the
within order did on the 10th January, 1881, =
take into my possession all the goods aud et-
fects Of Thomas Spencer and Thomas Spencer
Jr, in Hilo."
This is not return which admits the prop $
orty in issue here to be the plaintiffs. Ii
specifics no property to belong to the plaintiff.
1t refers, following the language Of the order
IF seizure to 'the property of Thos. Spencer
loing business under the name of Thomas
Spencer, it,"
The Marshal and his deputy knew they had
no right under the order TO take any but the
property of Thomas Spencer, and they seized T"
hat and intended TO so return. But even il the y
language used could be construed sn admis- II
non of title 10 any part OF the property in the
,laintif it does not estop the defendant a
The cases cited by the plaintiffs counsel a
re not in point here They hold an estoppel 7
u
luty. y
In this case the defendant owes no duty to C
he plaintiff. He holds in opposition 10 him. >
The plaintiff is not a party to the order. He %
tands as a stranger to it. A direct admission y
hat he or any other stranger owns The goods u
e was directed 20 seize as Thos Spenccrs
aunot preclude the defence by the officer or -
hose whom he represents. "
This admission stands like the admission of .
NY other party. 1t is evidence, but may be u
Explained or contradictod. The defendant was U
lot called upon TO say or do anything about v
he plaintiffs property. Ii he made any report III
bout It, it is surplusage
The plaintiff further excepted to the refusal
t the court 10 charge that the action is sup 8
orted by evidence that the plaintiff had the III
of the goods when taken, and that
he burden of proof to show title ont of tho W
,laintiff is then on the defendant ca
The Court we think rightly charged that al
he burden If proof was on the plaintiff. The ~
ctual possession Of the goods replevied was ia
hown to be in Thos. Spencer. Whether he ne
eld personally or guardian for the plaintiff, ~
hos. Spencer, Jr, was question of fact for &c
be jury. That Thomas Spencer was in pos le
ession was claimed as badge of fraud 10y the u'
efendant. 1t the defendants proof showed &c
hat Thomas Spencer was insolvent, aud must III
ave paid for the goods replevied, title
laimed by Thos. Spencer, Jr., by any bill Of
ale would be void while Thos. Spencer re-
named in possession. by all the leading
inbred cases since Twynes case, decided IN ~
GO2. Benjamin on Sales, Secs. 4si-5-6. The
urden of proof was on the plaintiff in this
ase.
See Greenleaf's Evidence, Vol. 2, Sec. 563.
Merit va Lyon, 3 Barb. ll0-l2. {
The only remaining point of the plaintiff is
nat there is literally no evidence tending 10
how that the goods claimed were the goods
{ Thos, Spencer.
Upon this point we are clearly Of the opinion I
nat. in So far as the verdic; was in favor Of