The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-07

Af-TNTr
. authority to the morgagee to make
a new promise on behalf of the mort.
| gagor TO pay the debt, SO as to avoid
the statute of limitations"
In Roscoe IS. Hate. 7 Gray, 274; Stod.
dard as. D0ane, i'd 3S7, and Robinson rs.
Thomas, ID Gray, 381, it was held that
the insertion Of debt in a schedule
of creditors, filed and sworn to by a
debtor under proceedings in insolv-
ency is not such an acknowledges
as will take the debt out Of the sta
tute of limitations. The payment of
dividend by an assignee under in
solvent laws will not take the residue
of the debt out of the statute of limi-
tations as against the debtor" In
the second of these cases Chief JUS
tice Shaw said: 'To have this effect
(of new promise) it is manifest that
the payment must be made by the
debtor, or by his order, or by an
agent fully authorized for the pur-
pose. 1t is an act of his mind, from
which the implied promise to pay
the residue of the debt arises. We
are of opinion that a payment by an
assignee in insolvency is not pay
ment by the insolvent or his order,
within the meaning of this rule. The
assignee is bound by law to pay the
dividend which has been declared,
he is the debtor to that amount. The
original debtor cannot delay or pre-
vent such payment if he would. 1t
is not personal or voluntary act of
the insolvent."
This reasoning is applicable to the
case at bar, the only difference being
that here the assignee takes his au-
thority from the deed of assignment.
1t is held in Great Britain that
payment of dividends by an official
assignee does not take claims out of
the statute. DaOies as. EdooardS, 6 Eng.
Z. & Eq., $40. Eoerett Us. Robertson, 1
Ellis & Ellis, Is.
We have found one case where it is
held that the payment of dividend
by a trustee, under a deed to trustees
in trust for the benefit of creditors,
was treated as the act of the makers
by their agent and as evidence of q
new promise. Barger as. Durrin, % |
Barb, 60 But this case is disap- |
proved in Pickett Us. King, 81 Barb, !
1913, where the Court hold that an
assignee is not en- agent authorized
to renew a debt, or take it out of the |
statute of limitations, as against the
assignor. Pickett VS.. King was
by the Court of appeals-34
\. Y, IT'S. In R00seeelt rs NarE, 6
John. CHI, 292, Chancellor Kent uses
his strong laDguage-"It is going
far to construe pay
nv ~. fy.y1c 81 |
are not parties to the contract, or
1nder any personal obligation to
Day or contribute, as meaning
more than they plainly import, or as
carrying with them sufficient evi
lence of q renewed personal promise
# the original debtor to pay. Such
pecial trusts were not created for
my such purpose; and it is pervert-
ng the intention OF the parties, and
5 plainly repugnant to the reason
nd equity of the trust, to make the
execution of the trust the
round of 4 constructive new assump-
ion OF the debt by the debtor" I
In Pickett rs. King, ride supra, the l
'ourt say, The only promise made
Y the defendant was made IN I
nd by his assignment and no {
erson IS therein authorized to |
lake any new promise for him '
t would be highly unjust to allow
u assignee, under such construc- '
on, to continue aud revive a debt &
{ his assignor indefinitely and 7
gainst his will and without his
This view is also held t
/ Parson VS.. Clark. 50 Mich. 419. a
nd in Marienthal vs.. Mosler, Is
hio ST 5GG We heartily adopt it. i
he facts and circumstances of the u
ayment in question not being dis V
lted, and they not showing q new o
romise by Tai Lung, p direction to Il