The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-11-07
In the Supreme Court Of the Hs-
walisn Islands.
SEFrFnRIK Tern. 1898.
L. AHLo Us. Tai Lung.
REFoEE JUDD, c. =, BICkERToS AND
FREAR, u.


FREAR, u.
( Where the triAl Judge allowed Snd gave S
request for instruction IN writing znd
modified IL by IN addition thereto, the
addition being taken down by steno-
crzphsr and thereafter Transcribed snd
fled the statute tChsp. s., Laws OF
1921 vas complied with
I Part payment on 5 note mSde by Sn as
siEnee under a. assignment by the
maker OF al his property 70 Te2lizs up
on and distribute among his creditors
mo rats. Is not payment from which
s new promise Of the original debtor
could BE inferred 70 take the note out
Of the statute Of limitations
I Mere acceptance Of pro rats dividend on
an assignment for the benefit Of credi-
tors does not imply sn agreement 20
relIlouish the residue Of the debt
l The deed Of assignment did not contain Sn
agreement that the receipt by the cred
iro- OF his proportion Of The proceeds
Of the debtors property should be II
full satisfaction Of the debt 2ld the
creditor made no promise TO that effect:
He'd il Was erroneous 70 instruct the
iu-y that i they ind thst the sccept-
lance OF smaller sum BY the creditor
vzs ID full satisfaction for the note,
thev might md for the defendant. The
charge should have been thst there wSs
10 evidence Of releSse or OF any
agreement for release O. the claim oy
the plaintiff.
A collateral benefit such IS the prompt
payment O. proceeds q debtor prop
eETy 70 MS creditors would be valid
consideration 70 support 81 agreement
= -sss,-- s--- he .
o. the debit such agreement hsc
bee1 us6e.
OPINION OF TIE COURT 81 JUDD. c..
This i an seton Of assumpsit TO
recover the balance due on 8 pr0mis-
sory note payable on demand made
BY Tai Lung Co. in favor Of L. Ahlo
for ST64 %. dated the ID April, 1888.
It appears that on the 14th June.
1885. the defendant then being
storekeeper IN kohala, Hawaii, under
the name OF Tsi Lung & Co. made
an assignment OF all his property to
Kimo Pake and c. Bolte 10 realize
upon and distribute among his credi-
tors pro rats. The assignees sold the
property and paid dividends TO the
creditors in 1886, one OF Is per cent.
on February 1lth sud the final one
Of = per cent on the 18th July On
these dates II. Hsckfeld & Co. we're
owners of the note in question, by
delivery and Endorsement in blank
L. Ahlo. waving notice. protest and
demand. and this firm Endorsed on
the note Reed LIST dividend Of estate
OF I. L. & Co. Feb. II, S6-S145.52:
July 16, sS6-$T2.76.n The note also
bears the statement written across
its fsce Settled July IL, Sc. by L.
Ahlo. H H & 70. by E. Suhr:" and
il thereby became again the property
of the plaintiff. The sum claimed in
the declaration amounted. with in
tsrest to 9TH June, 1892, when
the declaration wss sworn to.
TO S92o. Sc. The statute Of limits-
tons was pleaded and it hsd run
sgainst the notes at the date OF suit
(six years from the date of the note
being April 8, 1889, unless the last
payment made, 18th July, 1885, took I
the note out of the statute The Jury
found verdict for the defendant.
The plaintiff e bill of exceptions
raises as the first point, that the
trisl Judge of the Circuit Court, /.
First Circuit, in giving the second /
instruction 10 the jury asked for by 4
the plsintiff having modified it, did /
not observe the terms Of the statute /.
governing such cases. to wit. Sec. 5, /
Chap. IS. Laws Of 1892. The charge 4
ssked for was:
II the jury believe from the eyi
dence that defendant, or any one on 1
his behalf and with his sanction made .
6 payment on account Of said note /
within six years prior 70 June q, 4
1892. then the statute Of limitations 4
hiss not yet run against it" The /
Court allowed this instruction and /
gave it. adding That Is TO say.
that it Is evidence that there has
been q new promise that the
ststute does not run" This second /
request for instruction Is marked /
allowed" in the margin and the
addition made by the Court was de- /
livered orally and taken down by the /
stenogrspher and Transcribed. The /
statute referred to directs the Court |
to write IN the margin OF requests
for instructions. given" OF re
fused" according as the Court shall /
approve OF disapprove Of them. It |
also prescribes that it is competent /
for the Court to modify an instruc- |
ton and to give IN It's modified form,
~but il such manner that it shall |
distinctly appear Whist instruction |
was given snd what refused, In 1
whole OF in part AL written re-
quests for instructions shall be fled 1
IN the csuse. and shall be part of the |
record therein; and the Court shall |
in no case orally qualify, modify or
explain the same to the jury" Sec. 2
of the Act requires the Court to re-
duce its charge 20 writing and read |
it to the Jury. Sec. 8 is IS follows:
In cases where an official steno-
grspher Is present and taking notes
of the trial proceedings, it shall not |
be necessary for the Court to reduce