The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-11-07

dIa AAC olcAfs 1870 ~
person is therein authorized to
make any new promise for him.
1t would be highly unjust to allow
an assignee, under such eonstruc-
ton. to continue and revive debt
OF his sssignor indefinitely and
against his will and without his
knowledge" This view is also held
in Psrson VS.. CLARK. 80 Mich. 419.
and in Marienthal vs.. Mosler, 16
Ohio St. SO. We heartily adopt it.
The facts and circumstances of the
payment in question not being DIS
puted, and they not showing a new
promise by Tai Lung, q direction to
the Jury might we'll have been asked
for and given that the part pay
ment by Bolte to Hackfeld & Co. did
not take the note out of the statute.
The Court in the case at bar
charged the jury that IF they be
leved that while the note was so
held by Hsckfeld Il Co, they re.
ceived payment of q certain sum
upon it under the assignment which,
as between the parties, that is to
say. Tai Lung and Hackfeld & Co.,
was in full payment of it, then that
was sn extinguishment of the claim.
But if you find thstit was merely q
payment on account and that such
endorsements of payments were
made by the authority of Tai Lung,
that is to say if Hsckfeld " Co.
credited these amounts upon the
note by the authority or with the
consent of Tai Lung. then that is
evidence of q new promise and will
date from the date of the payment,
the latter payment being as I read it
July 18th, 1856. the suit having been
brought on the oath June, 1892. If
you find from the evidence that
Hsckfeld & Co. did receive a small
portion of the note as full sstisfac-
ton for the note, then you must find
for the defendant If, however, you
find that they did not do so, but
these credits which were made upon
the note were by the authority of Tai
Lung, then that is evidence for you
to consider whether or not there has
been new promise"
Was it proper to leave to the jury
the question whether the remain
der of the debt was released
by Hackfeld & Co.? We find
it laid down in well accepted su-
thority that, in general. the accept
ance of less sum of money than is
actually due is net satisfaction of
the debt and will not extinguish it,
though it was agreed by the creditor
to operate as such, as there is no
consideration for the REIMBURSEMENT.
This rule is considered so harsh and
so violative of good faith that courts
are disposed to take out of the rule
all those cases where there was any
new consideration or where there
was any collateral benefit received
by the creditor. Courts have de.
parted from it on slight distinctions"
Kellogg VS. Richards, II Wend.. 116;
Brooks vs.. White, Met, 285.
THE rule and the reason were
purely technical, and often fostered
in bad faith"
"The history OF Judicial decisions
upon the subject has shown con-
slant effort to escape from its absur-
dity and injustice" Harper vs.
Graham, 20 Ohio, log.
The jury had before them the fact
of the taking of all the defendants
goods from his store to be sold for
the benefit of his creditors. This in
sured the creditors that the debtors
property would promptly be applied
to their debts and they received 223
per cent. From these facts the jury
might we'll find that this collateral
benefit was a sufiient consideration
and so an agreement to accept in full
could be supported. This was
much more substantial consideration
than some that were held good by
the ancient authorities, as in Pin
nel's case, 5 Coke, III, where the
gift Of a horse or the like is stated to
be good consideration though of
far less value than the debt released,
and as stated in Sinner VS.. Trip, Is
NJ. & W., 81, that if piece of paper
or stick of sealing wax is substitut-
ed the bargain may be carried out. We
find in Is Am. & Eng. Encyc. of
Law, p. 232, that it was held in
Arnold vs.. Bailey, q S. Car, 493,
that the acceptance in writing of the
terms of an assignment for the
benefit of creditors, accompanied
by a receipt of a portion of
the proceeds of the assigned
estate, is sufficient consideration to
the agreement to receipt in
full, and neither the acceptance nor
the receipt need be under seal"
But in this case. as We find by |
reference to it in Jsffray vs.. Steed-
man $50. Carl, Il S. E., 632, the |
assignment provided that every &C.
creditor shall receive the sum
to him in full satisfac- |
ton"
In the case before us We do not |
find any evidence of release by H |
Hackfeld & Co. The deed of assign
ment does not contain any agreement |
that the receipt of his proportion by |
the creditor shall be IN satisfaction of |