The Hawaiian gazette., 1886-05-04
Supreme Court of the Hawaiian Islands,
In Banco. April Term, 1856.
SAM YIP VS.. CHING SING AND LEI MUNG,
J. E. WIsENAS, GARN1sHEB.
DEFoRE JUDD c. J. M'CUILT AND PRESTON III.
Opigios of me Court bv PRESTON J.

BEFonE JUDD c. J. M'CUILr AND PRESTON ~.
Opinion Of the Court by PRESTON J.
On appeal from the Police Court, Honolulu
This is an action of assumpsit brought in
the Police Court, Honolulu, to recover the sum
Of sll9.67, balance due on promissory note.
J. E. Wiseman was served with a summons
as trustee of the debtor, Ching Sing.
The garnishee attended and gave the follow
ing testimony:
81 know Ching Sing. l have NO money or
property in my possession. His creditors
came 10 me with him,-at his request l was
made assignee, he assigned to me all his prop
erty, a one tenth interest in garden at Wal
kiki,-this is the assignment,-I have not dis
posed of this property--it was advertised for
sale for yesterday. The price was not high
enough, and It was not sold. / was offered
$3.50 for it at auction" t'fi
The deed is dated oath February, 1856, aud
is an assignment to Wiseman, in trust for the
benefit of the creditors of the debtor mentioned
in schedule.
The plaintiffs name does not appear in the
schedule.
The Police Magistrate rendered Judgment
for the plaintiff and discharged the garnishee.
The plaintiff appealed from the judgment
discharging the garnishee upon the following
grounds:
That no conveyance between the defendant,
Ching Sing and the said garnishee could bind
the plaintiff, but that the property in possess
ion of Wiseman was and is liable under the
process herein.
April 20. V. V. Ashford for plaintiff. Wise
man isnot released as garnishee by the deed !.
from the claims OF creditors who were not con-
senting parties to the trust; especiallyis the
money or property had not beer paid or dis
tributed at the time of theservice of the gar
nishee process.
Ii there were circumstances under which
the tTust-aeed was good, they could not be
peeifu to extend beyond a trustee process or gar
nishee; and in any event an assignment
(whether purDorting to be sin trust" or other
wise) would be invalid if it operated to the
benefit of one or more creditor or creditors to
the detriment of the others.
The assignment in trust by the general rule
of law cannot interfere with the rights of cred
itors who do not choose to be bound thereby.
There is no privity on the part of this plain
tiff, and his legal rights as they would exist
lriltom the alleged deed of trust, cannot be
taken from him by strangers and without pro-
cess; which would be the effect if the deed
were held to be valid against the plaintiff.
Chandler VS. Booth, II Cal. 342 was cited.
No counsel appeared for the respondent.
By THE COURT.-We are of opinion that the
judgment appealed from is correct.
An assignment to a trustee for the benefit of
creditors, not parties to the deed is valid with
out the assent of the creditors and the legal
estate will pass to the assignee without such
assent, so as to prevent Judgment creditor
from obtaining lien by execution.
See Nicoll VS.. Mumford, John, Oh. 522.
The property having passed to Wiseman, he
became a trustee for the creditors, and not for
the debtor, and consequently could not be or
dered to satisfy the plaintiffs claim.
The deed cannot be attacked by these pro-
ceedings, and although it may be invalid as an
act of bankruptcy, that question can only be
considered if proceedings in bankruptcy are
taken.
The appeal is dismissed with costs.
Ashford e. Ashford for plaintiff.
Honolulu, April IS, 1886.