The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-02-15
Supreme Court OF the Hawaiian Islands
In Banco. JanuAry Term. 1882.

7. Spencer, in, by T. SPENCER. his next
friend and guardian, vs.. W. c. PARKE.
JuDD, c. J., McCuLLY and AUSTIN, J. ].
OP1S1oS OF THE CoURT ny AUSTIN, J.
This is an action Of replevin tried in the
Court below before Mr.. Justice Judd and II
jury.
The plaintiff had a recovery of part of the
property claimed specifically and of half Of the
residue thereof. From this verdict and the
judgment entered thereon the plaintiff dis
senis. and files his bill of exceptions.
The defendant justified the seizure and de-
teution 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 as a
bankrupt, and the appointment OF Lis 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 Of attorney it au-
thorizes the attorney TO "take all lawful means
bv suit or otherwise, for the recovery of debts
due Andrew Welch, the party granting tue
power, and TO compromise, agree Tor, and
settle tie same, and TO make, seal and deliver
such acouittauces, receipts, discharges, salts
faction Of mortgage and other instruments as
may be necessary or proper in The premises:
We have no doubt this power authorized T.
G. Jones, the attorney by substitution Tor
WEIGH, to proceed in bankruptcy against Thos.
Spencer and 10 give the bond required The
oath was taken by Mr.. z. Z. Jones, the allor-
new in fact. for the pciitiouirg creditor. This
was sufficient under Sec. 500 Of the Civil Code,
and in analogy to Sec 1899 as 10 oaths in civil
actions. There is no requirement that the oath
shall be personally made by the party IL
interest.
The proceeding was therefore properly be-
gun. The Court acquired jurisdiction, and the
subsequent proceedings regular.
The plaintiff asked the Court to charge the
Jury that the defendant was required TO show
Il Horo that Thomas Spencer was bankrupt
and was properly So adiudicated. We think
the record was proof Of the regularity Of all
the proceedings taken, and no proof against IT
was made or probably could be made by the
plaintiff Tie objection was technical. Tue
assigness in bankruptcy are not required 10
fight over anew upon every claim made against
their estate as assignees, their title TO oct as
such.
Under the Bankruptcy Act Of the United
States lately repealed, the record WAS made
presumptive 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 ad-
Indication in bankruptcy the title OF the bank
rupt TO all his property, including property
COW eyed in fraud of creditors, and all nights
in equity, are at once vested IN the asslgnees,
relating back to the commencement Of the pro-
ceediug in bankruptcy. Bump on Bankruptcy
PIP. 3fl, $50, ass, ass, i73, 4s2. United States
Statutes at Large, Secs. 1892, 50i4, 50i6, 5O47,
5os9.
Without these special provisions the proper
commencement of The proceeding ard the for
NAL adjudication and assignment would have
been held conclusive as 10 all the world as to
the right of the assignee to stand in place OF
the bankrupt and bis creditors as to all hIs
assets. Thereby ne possible injury could arise
10 the plaintiff The presiding Judge properly
SO held on the trial below.
As matter Of fact proving Thomas Spencer
a bankrupt did not prove him insolvent and
show title for the creditors in this case and
other proofs were required and were made.
The plaintiff also claims that the return of
the defendant as Marshal admits the goods re
plevied To be the property Of the plaintiff,
aud that thereby he is estopped f"m denying
it.. The order commanded the Merslal totake
possession Of all the property OF Thomas
Spencer, doing business under the maine OF
Thos. Spencer, Jr., at Hilo.
Under that order the defendant took the
property in question. He labels his return:
Inventory Of goods and merchandise sliced
January 10Th, 1851, 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 tie goods aud Ell
fects Of Thomas Spencer and Thomas Spencer,
Jr., in Hilo."
This is not return which admits The prop
erty in issue here 10 be the plaintiff 5. II
specifies no property to belong TO the plaintiff
1t refers, following the language oil tile order
of seizure TO ''lhe property Of Thos. Spencer
doing business under the name OF Thomas
Spencer, Jr."
The Marshal and his deputy knew they had
no right under tile order to take any but the
property of Thomas Spencer, and they seized I
that and intended to SO return. But even II the
language used could be construed as IN adInis-
sion Of title 10 any part Of the property III the
plaintiff, il does not est0p the defendant.
The cases cited by the plaintiffs counsel
ire not in point here. They hold an estoppei
in favor of those 10 whom the officer owes a
duty.
In this case the defendant owes no duty to
the plaintiff He holds in opposition TO him. 1
The plaintiff is not party 20 the order. He /
stands as a stranger to it. A direct admission 1
that he or any other stranger owns the goods /
he was directed to seize as Tbos Spencers
cannot preclude the defence by the officer OF
those whom he represents.
This admission stands like the admission of
any other party. Il is evidence, but may be
explained or contradicted The defendant was
not called upon 10 say or do anything about I
the plaintiffs properly. IL lie made any report
about il, it is snrplnsage.
The plaintiff further excepted TO the refusal
of the court 10 charge that the action Is sup
ported by evidence that the plainiiti bad the
poss ession Of the goods when taken, and that
the burden Of proof 10 show title out OF the
plaintiff is then on the defendant.
The Court VIC think rightly charged that
the burden Of proof was GU the plaintiff. The
actual possession Of the goods rePlevled was
shown TO be in Thos. Spencer. Whether he
helo peIeohaiie Ut as budiuiah ivi AuC li1i'i'.ii
Thos. Spencer, Jr., was question of fact for
the Jury. That Thomas Spencer was in pos
session was claimed as badge Of fraud 10y the
defendant. If the defendants proof showed
that Thomas Spencer was insolyent, and must
have paid for the goods rcpleyied, title
claimed by Thos. Spencer, Jr., by any bill OF
sale would be void while Thos. Spencer re-
manned in possession. by all the leading
kindred cases since Twyne's case, decided IN
1902. Benjamin on Sales, Secs 4si-5-6. The
burden Of proof was on the plaintiff IN this
case.