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

| luTT SO tl6I IL NOulu HON Uc ucpSh-
dent on mere memory for its repro
duction. We consider that the sta
tute wss complied with in this case
The addition made by the Court
was good law. Apgell on Limitations,
Sec. $40, says, An acknowledgment
or new promise may be inferred from
the fact of psrt payment of coz
tract within six yesrs" etc Part
payment is only prims fscie evidence
snd may be rebutted by other eyi-
dence. and by the circumstances
under which it is made. Gases cited
in Note to Angel, Sec. 30 The
Court cannot imply promise from
the mere fset of part payment as an
inference of lsw. It must be left 10
the jury. White Y. Jordan, q, Me-,
SO.
We will next consider the exception
taken to the granting of the defend
ants request for instruction, that
payments on account on plaintiff S
note msde by defendants assignee
without defendants authority are not
evidence Of g new promise on the
psrt OF defendant and will not take
the note out of the operation Of the
statute Of limitations.
The great weight es authority sus-
tains this proposition. Red {. john
,oa, l r. L 81. The head note is, "A
deed OF assignment made by debtor
for the payment of certain debts and
for the payment OF his debts gener-
ally, and partial payments made by
the assignee to q creditor, Is not sui
fcient evidence of new promise to
avoid the statute of limita-
tons" The facts Of this csse are
very similar TO those of the one at
bar. They we're even more favor
sble to the plaintiff for the assignor
had, after the sale Of the property
and before payment Of the dividend,
designated to the assignee the note
in suit as one Of the claims provided
for by the assignment. The Court in
g well considered decision hold that
the assignee for the benefit OF credi-
tors is not an agent of the assignor,
but an independent contractor, re-
sponsible to the creditors for the
proper performance OF his trust.
In CGmg5ssl I. BaIdsiH, 80 Mass.
200. it was said that the ground
on which part payment
is held to take case out of the sta
tute, is that such payment is a volun-
tary admission by the debtor that the
debt is then due. which raises new
promise by implication to pay it or
the balance. To have this effect it
must be such an acknowledgment as
reasonably leads to the inference
that the debtor intended to renew his
promise of payment" In the case
at bar the plaintiff executed q mort
gsge in which he gave 10 the mort
gsgee g power to sell the estate and
to appropriate the proceeds to the |
payment Of the mortgage debt. But |
this cannot be fairly be construed as
sn authority to the morgagee to make |
q new promise on behalf of the mort |
gsgor TO pay the debt, so as to avoid |
the statute of limitations"
In Rosoot rs. Rdle, 7 Gray, 274; Stod.
G4rd IS. Doda<. id. 3S7, and Robinson Is.
Thomas, Is 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 acknowledgment
as viii take the debt out of the sta
tute of limitations The payment Of
s dividend by an assignee under il
solvent laws will not take the residue
of the debt out OF the statute of limi-
tstions as against the debtor" In
the second of these cases Chief JUS
tee Shaw said: ITO 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 q payment by an
assignee in insolvency is not q 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
debtor cannot delay or pre-
vent such payment if he would. 1t
IS not 8 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.
It is held in Great Britain that
payment of dividends by an official
assignee does not take claims out of
the statute DdriS Is. Edpdrds, 6 Eng.
L. & Eq., $40. E5erat IS. Ro5erts0n, 1
Ellis & Ellis, Is.
We have found one case where it is
held that the payment of dividend
by trustee, under 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
new promise. Barger Is. Durria, p
Barb, SO. But this case is disap-
proved in Piok6t e. King. 81 Barb,
1913, where the Court hold that an
assignee is not an agent authorized