The Hawaiian gazette., 1891-09-15
OPINION OF THE COURT BY DOLE, ]

Ihow ChOy, assignee IN the above
case, comes before the Court and
asks instructions herein, under the
following conditions:
He has collected thus far on be-
half of the estate of said bankrupt
sufficient to pay about forty per
cent. of all claims not refused under
section S of the Bankrupt Act as
amended by the law of 1888.
Under the provisions of said sec
ton S, he duly refused in writing
within the prescribed time certain
claims aggregating Sc, 167.45, and the
several claimants so refused have not
taken any further proceedings in the
matter, though their said several
claims have been so refused over six
months.
"That the claims allowed amount
ed in the aggregate to $3,865.06, on
which he has paid to the several
claimants the amount of rs per cent.
as first dividend.
That he has still in hand sufici-
ent to pay (say) Is per cent. addi-
tional upon the claims allowed as
above; but is advised by counsel
that it would be unsafe to pay fur
Their upon the above accepted claims,
while those refused as above are in
the present unsettled condition.
Section s of the Bankrupt Act, as
amended, reads as follows:
"Any creditor may object to the
allowance or proof of any claim and
the hearing shall be had before the
Justice, and any creditor whose
claim is so objected to shall have no
voice in the choice of assignees, pro-
vided however that the creditor or
creditors making such objection file
an affidavit that such objection is
bona fide, and is not made for the
purpose of depriving the creditors
objected to of having a voice or vote
in the election of assignees. Either
party or the assignees may take an
appeal from the decision of the JUS
tice to a jury, upon complying with
the requirements in regard to APP
peals contained in section FL.
The assignee or assignees shall
within one month after his or their
appointment, or within the same
time after the receipt by him or
them of any claim proved against
the bankrupt's estate, notify the
person or parties who have so proved
whether such claim is disputed
by him or them"
The Act until amended in 1888,
undoubtedly supported the position
that the formal proof before the
presiding Justice was final if not
appealed from, as appeal is allowed
to jury from the allowance or dis
allowance of any such claim. No
other proof is provided for, and the
assignees are required to make as
many dividends of said estate as
they may think proper, not to ex-
coed five, among the creditors who
have proved their claims" (5ection
Ii, Chap. 35, Laws 1884, The
amendment to section s, passed in
1883, as above set forth, requires the
assignee to notify creditors who have
proved their claims whether or not
their claims are disputed by him,
but there is no further provision as
to the duties of the assignee or of
the creditor in relation to disputed
claim. It is clear that the creditor
would have right of action in such
case against the assignee; but how
long his right of action shall survive
the law does not inform us.
The only part of the statute that |
affords any assistance to the solution |
of this problem is section %, which |
is as follows:
Preparatory to the final account |
and dividend, the assignee or as
signees shall submit his or their &C.
counts to the Justice and file the
same, and shall thereupon give no
tice to all the creditors who have
proved their claims, that he will ap-
ply for settlement of such accounts
and for discharge from all liability
as assignee or assignees at time
specified in such notice. At the hear
ing, the Justice shall audit the ac-
counts, and any person interested |
may appear and contest the same.
The Justice NAY thereupon, at his |
pass the accounts and or
der dividend of any portion of the
estate remaining undistributed, and
shall discharge the assignee or as
signees."
This section provides for final
of the estate before the
presiding Justice, upon due notice
20 all the creditors who have proved |
heir Claims" which includes those
creditors whose claims have been
proved before the Justice and
afterwards disputed by the assignee.
This hearing gives an opportunity
20 such creditors to test the as
'ignee's accounts and to show that
he disputed claims ought to be
recognized. The decision of these
questions by the Justice is final, un-
ess appealed from, and the order of
he Justice in the matter will stop