The Hawaiian gazette., 1884-12-03

This case comes here on writ of error from
the Police Court.
The action was brought to recover summary
possession Of land leased by the landlord, upon
ground of forfeiture by the tenant for breach
Of covenant in the lease, not to assign with
out the written consent Of the landlord. The
lessee, without such consent, filed petition
in bankruptcy, and is now bankrupt, and the
defendants are his assignees. The Court be-
low held such act was not breach Of the COW
enaut referred to, and gave judgment for the
defendants. The plaintiff failed TO appeal in
time as allowed by the statute. and subse-
quently was allowed this writ of error. The
counsel for defendant moved that the writ he
quashed.
The first question presented therefore, is
whether 4 writ of error will lie in the case,
The defendants counsel claims that the law is
stare deciSis in his favor, in the case of d. Ka-
lakaua ct. al. VS.. c. G. Harris, 3rd Hawaiian
D. 81. That decision was made in 1867. and
has not, that we are aware Of, been questioned
since. The plaintiffs counsel claims that the
decision was error and should now be recon-
sidered and reversed. AS has been announced
lately by this Court, such reversal should be
made with extreme caution, and only where
on reconsideration it seems manifest that mis-
take or error occurred. With this principle in
view we have examined with care the decision
made.
By Sections 1857 to ll60 inclusive, of the
Civil Code, a writ of error may issue from any
Justice of the Supreme Court to the Police
Justices within six months of after entry of
Judgment, if the execution thereon has not
been fully satisfied. By Section 94s of the Civil
Code, an appeal in "a hours may be taken
from judgment in summary proceedings in
the lower Court to a Circuit Judge or to the
Supreme Court. By Section 1905 of the Civil
Code, any party may appeal, in any case, from
the decision Of Police Justice to the Circuit
Court or to the Supreme Court, within ten
days after decision rendered. These separate
Sections were passed simultaneously in the
Civil Code of 1859.
In 1874 the office of Circuit Judge of Oahu
was abolished, and Judge of the Supreme
Court, as the Intermediary Court was as
ssigned to perform some of the duties of the
former Circuit Judge and Court. But the
remedies for errors of judgments of Police
Courts remain now what they were in 1859.
The appeal from a judgment in summary
proceedings would doubtless be governed by
Section 9is because specially mentioned
therein: Section l0O6 would not apply to that
case: but with this exception, the different
Sections may well stand together. 1t is i'm
possible to say that either Section abrogates
or repeats the other.
A writ Of error brings up only errors of law
which appear upon the record sent up and
must be granted before execution is collected,
while an appeal may consider errors of fact as
well as of law. The writ gives time to dis
cover errors of law which the hurry incident to
an appeal may have caused to be overlooked.
The different remedies seem wise and consis-
tent.
On looking at the case in Sd Hawaiian we
find the only case cited in the opinion to be
Savage VS.. CULVER, Mass. III. That case
was one where writ of error to the Supreme
Court from the Judgment of Justice of the
Peace, was quashed because an appeal was
allowed by the statute of 1888 TO the Court of
Common Pleas. At the time this statute was
passed, the right to writ of error existed, and
Chief Justice Parsons held that "the statute in
giving an appeal has, in our opinion, taken
away, by reasonable implication, the remedy
by error, unless in cases where the aggrieved
party, without any Idches on his part, could
not avail himself of an appeal"
Manifestly this case is not in point to sus-
tain the decision in the Sd Hawaiian. With
Difference, we think the Court overlooked the
distinction between the two cases, and CON-
mitted an error which it is our duty now to
correct, and we therefore sustain the issuing
Of the writ.
This conclusion brings us to the question on
the merits whether voluntary petition in
bankruptcy by the lessee in lease without
consent of the lessor is breach of tile cove
nanL by the lessee not to assign without con-
sent of the lessor.
By section 962 of the Civil Code, every
person owing honest debts TO the amount Of
$1,000 finding himself insolyent' may, under
oath before Justice of the Supreme Court,
declare himself bankrupt. Assignees are
appointed by the choice of the creditors, and
thereafter, by section 974, the Jnstice shall
direct the Marshal to assign all the bankrupts
property to the assignees.
The Plaintiffs counsel admits and the
authorities are undisputed that the involuntary
bankruptcy of such lessee would be no
breach Of the covenant not to assign; but he
claims that by voluntary petition the lessee
in this case has caused the assignment to be
made and thereby his lease is subject to for
TEXTURE. II this be so then the remedy Of an
honest debtor who holds such a lease, to
declare himself bankrupt, and thereby try to
be just to all his creditors, is cut eff, except
- S2PSASS VI ANSib6 ~ huClu duu " ulll-
Self, lease, which may, as claimed in this
case, be the most valuable asset he has for the
payment Of his debts. This seems unreasona-
BILE.
Literally the execution of such an assign
ment in involuntary as well as in voluntary
bankruptcy, if considered the act Of the bank
rupt, Is breach of the covenant which says
no assignment shall be made. The covenant
makes no exception for any cause. But the
law, for the protection Of creditors has long
held that involuntary bankruptcy was not q
cause Of forfeiture. The holding in voluntary
bankruptcy is not SO undisputed but we think
it is sufficiently clear.
In Bemis vs.. Wilder 100 Mass. 44e7-s the
defendant in Dec. 1866 filed his voluntary
petition for the benefit of the insolyent laws,
and thereafter his property was assigned by
the judge Of insolvency to a chosen assignee.
The Court said that "it is well settled that an
assignment, by operation Of law, passes the
estate, discharged OF the covenant, to tho as
signee; and this would seem to be so where
the transfer arises from voluntary proceedings
in insolvency as distinguished from proceed
ings in inritum, and where there is no in
dication that the proceedings are colorado
merely for the purpose Of affecting the transfer
IN fraud Of the lessor" This case is exactly
IN point See also Smith VS.. Putnam Pick.
22O., Doe vs.. Carter T. R. p. 81. jackson
VS.. Corliss John r. $780, In these last two
cases judgments were confessed, but not
fraudulently, and executions thereon issued
upon which the leases were sold.
See Taylor's Landlord and Tenant Section
40s. Doe dem. Lloyd VS.. Powell Barne and
Cress. 3Os
The plaintiff relies on Shee VS. Hale Is
Vesey 404. 1t is not in point, for the Court
there held, that the intention Of the testator
to make the annuity, sought to be forfeited to
creditors, personal TO his son, who assigned
in insolvency, was undoubted, and SO there
was forfeiture
II Is undisputed that a landlord may prevent
the operation Of the rule herein applied by
stpulating that the lease shall not 50 pass.
See Tsylor's Landlord and Tenant section 400.
shee VS.. Hale and note.
The case Of Holland vs.. Cole, HurIstone and
Coltmans R. Exc. 81 goes nearest to sustain
ing the plaintiffs position but, in important
respects may, we think, be distinguished from
tue case at bar. The lessee in that case exc
cuted voluntary deed Of assignment for the
benefit of his creditors, under the new bank
ruptcy act Of 1861. Pollock G. B. says that
formerly such an assignment was an act Of
bankruptcy and void, and SO the lease was not
assigned; citing the case from 5 Barne and
Cress, above cited; but, that now, By the new
act, such an assignment, II certain conditions
were fulfilled, would be valid, and be holds
the assignment to be voluntary and to work
forfnffura fhoen ~orIsf.o-r 1.o-~s,r~ -.