The Hawaiian gazette., 1893-08-08

statute to be entered. No injury
could result to defeated party by
such entry. 1t is in his power to
move for entry at once, or, to move
for an amendment afterwards If the
entry is not conformable to the judg-
ment rendered. The Judgment could
not be impeached collaterally merely
because entered nunc pro tune without
an order of the Court. The judg-
ment is also in proper form, although
IN the form required by the new rules
of the Circuit Courts. The former
rule of the Supreme Court relating
to the form of Judgment was and
purported to be directory only.
Plaintiffs counsel further con-
tends that the judgment is not a bar
because the present plaintiff was not
g party to the former action, and be
cause Lloyd was not the proper
plaintiff in that action.
The original promise, if any, was
made to Lloyd for the benefit of the
plaintiff and her children. 1t is i'm
material whether Lloyd be regarded
as trustee of an express trust, or as
mere promisee to whom q promise
was made for the benefit of another
In either case he was proper party
plaintiff. Bliss, Code Pl., Secs. 81,
55, IS, 262; Langdell, Contracts,
Summary, Sec. 81. In some juris-
dictions where promise is made to
one for the benefit of another, either
may bring the action in his own
name. But a Judgment recovered
by one would be a bar to an
action brought by the other. 1t is
not necessary that the parties to the
two suits should be nominally the
same; it is sufficient if they are
really and substantially the same in
interest. Black, Judgments, Sec. 537.
A judgment against one who sues for
the benefit of another will bar
second suit by the latter in his own
name. H., Sec. 53S. Rogers vs..
Gosnell, 81 No, 1859.
But it is further contended that
prior to the bringing of the action at
law new agreement was entered
into by which Lloyd surrendered his
trust, and the defendants became
trustees in his place for the benefit
of the plaintiff and her children, and
that consequently Lloyd could not
properly bring the former action,
and that this suit is not based on the
original promise, but upon the sub
segment agreement. The new agree
ment alleged to have been made be-
tween the plaintiffs and defendants
could not stand by itself. There was
no consideration. A promise cannot
be supported by a past or executed
consideration. The second agree
ment or arrangement, if any, must
have been made either in pursuance
of or by way of substitution for the
first agreement. In either case the
consent of Lloyd, the promisee in.
the first agreement, would be essen
tial. 4 new agreement by way of
substitution would require a con- !
sideration-as a release of Grinbaum
& Co. by Lloyd from the obligation
of their promise to him in considera-
ton OF their payment or promise to
pay or hold the $4,000 to, or for the
benefit OF, the defendant and her
children There is no evidence of
any sach binding agreement. On the
contrary, the very fact that Lloyd |
afterwards brought the action at law
is strong proof, aside from other evil
dence, that no such new contract was
ever made. The new arrangement,
if any, therefore, must have amounted |
to no more than a mere method of |
out the first agreement,
Lloyd still remaining the promisee.
This appears to be the view taken by
the plaintiff herself, for she alleges
in her bill that the new agreement
was made in pursuance of the ORR
ginal promise. Lloyd would merely
be estopped from claiming any
paid out, or from holding the
defendants liable for any acts done,
by his consent. It would still be in
bis power at the time he brought his
action to enforce, by suit or other
wise, the original promise, if any, SO
far as it remained unperformed.
The decree appealed from is af-
irmed, with costs.
A. Rosa for plaintiff A. S. Hart
veil for defendants.
Honolulu, July 81, 1898.