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

4 II -
! 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 22!l
per cent. From these facts the jury
might well find that this collateral
| benefit was q sufliient consideration
and SO an agreement to accept In full
eould be supported. This was a
much more substantial consideration
than some that were held good by
the ancient authorities, as IN Pin
nel's case, 5 Coke, 1T, where the
gift Of horse or the like is stated to
be good consideration though of
far less value than the debt released,
and as stated in Sibner VS.. Trip, Is
H. x w, 81, that if a piece OF paper
or stick of sealing wax is substitute
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, "a S. Car, 493,
that the acceptance in writing of the
terms of an assignment for the
benefit of creditors, accompanied
by receipt of portion Of
the proceeds of the assigned
estate, is a sufficient consideration to
support 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 a
reference to it in Jaffray VS.. Steed-
man $50. Carr, IL S. E., 632, the
assignment provided that every &C
cepting creditor shall receive the sum
apportioned to him in full satisfac
ton"
In the case before us we do not
find any evidence of release by Fl.
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 |
the debt or operate as a discharge Of |
the residue. Nor is there any evidence
that III. Hackfeld & Co. made any
such promise. IAN acceptance alone
of the terms of an assignment for
benefit of creditors is not equivalent
to release" Jaffray Us. Steedman,
supra. It is held in Sanborn d War
ner vs.. Norton 81 Dentz, SO Tex, 306,
that a general assignment with no
provision for a release by those &C.
cepting its benefits does not bar the
creditor from collecting the
balance due.
Acceptance of a dividend by a
who does not sign the deed
of assignment which contained an
agreement for delay does not pre-
clude him from the right to begin an
action on the note. Bank of Bellows
Falls VS.. Deming, IL Vt, 367. We
are obliged to hold on authority that
rom the bare acceptance of the divi
lend by Hackfeld Il Co.cannot be i'm
olied q REIMBURSEMENT of the residue.
The trial Judge, however, left it to ;
he jury TO find whether the accept 1
lnce by Hackfeld Il Co. of small
part of the debt was in full satisfac !
ion for the note, which was errone- ,
,us. 1t may be cogently asked what {
difference it would make with the re- ,,
ult, if the jury found that the note
vas not discharged by Hackfeld&Co., {
it was barred by the statute of I
limitations. The difficulty is this: {
here were two defences, of the stat
tie Of limitations and of release 2
he verdict was general one. Now If r
10 JO4 y COHS4dSLSNA IAol q ACACeASO " S@S ! =
My proven, under the instruction
eaving them free to so find, this
'ould be final and they might not
ave considered the other defense, or
neither a new promise to pay the
ebt was made by Tai Lung after the
ayment of the dividend.
1t is true that the jury may have
ound against the defendants upon
Il the points; special verdict would
ave made this clear; but as the :
lstruction respecting the release -.
ay have misled the jury and di- :
erted their attention from the 4
her points, we are obliged to sus-
in the exception on this point,