The Hawaiian gazette., 1894-07-03

| SuCll ulNlOClld.
OPINION OF THE COURT BY JUDD, CD
This is an appeal from Hon. H. E
Cooper, Judge of the Circuit Cour
First Circuit sitting in bankruptcy
wherein, on the petition by the
Assignee for his discharge, he hello
that the claims of All Mi and Quone
Fung of Wailuku, Maui, were flee
subsequent to the declaration Of the
first dividend of the estate aud die
not participate therein, but the
Assignee having failed to object to
the validity of the claims (when pre-
sented) they are entitled to share in
the final dividend. The Circuit
Judge approved the accounts of the
Assignee and ordered his discharge
upon filing receipts by the creditors
of the final dividend.
The Circuit Judge found the fol-
lowing facts in the case:
John Richardson was adjudged a
bankrupt on December Is. 1891, and
Monday December %, was set for
the creditors to prove their claims
and elect an assignee; at which time
L. A. Thurston was elected assignee.
Notice to creditors was published in
the Hawaiian Gazette December
22nd and the return of the Marshal
endorsed upon the list of creditors
shows that notices were mailed to
creditors on the 18th of December
1891.
Among the creditors appearing on
the list are Quong Fung and All Mi.
On March 22nd, 1892, the assignee
declared dividend of 1886 per cent.
amounting to $5,65651. Previous to
declaring this dividend, Mr.. Thurs
ton wrote to All Mi, notifying him
that he was about to declare divi-
dend and calling attention to the
fact that he had not proved his claim
and enclosed special power of at
torney for him to sign, authorizing
the proof of his claim. Mr.. Thrrston
received no reply to this letter but
computed and allowed a dividend
upon the $500, claim mentioned in the
list of creditors, although the claim
had not been filed up to the time the
dividend was declared. The claims
of All Mi and Quong Fung were
proved on the oath day of March,
1892, two days after the dividend
had been declared"
On the appeal, counsel for the OPP
posing creditors, (V. V. Ashford
Esq did not controvert any of the
facts found by the bankruptcy
court, but suggested that the evi
dence of the creditor All Mi that he
had received no notice of the bank
ruptcy of Richardson or that he was
to prove the claim should
be considered as reasons why the
strict requirements of the statute
should be relaxed in his favor, and
he be admitted to participate in the
first dividend. Against this is the
admission of All Mi that he received
the assignee's letter of March 3rd,
1892, and signed the form of power
Of Attorney enclosed by the Assignee
and sent them to his attorney in
Honolulu, supposing that they re-
ferred to a private assignment for
the benefit of creditors made some
time previous by Richardson to Mr..
Thurston. The attorney then sent a
power of attorney back to his clients
and on their return to Honolulu filed
the claims, that of Alb Mi being for
the 5000 and a large additional
amount. But this was done on the
oath of March, the dividend having
been declared two days previous, the
Assignee having waited from the Bird
to the 22nd of March. The Assignee
was not required by the statute to
give further notice to his creditor to
prove his claim, but seeing the claim
for 5000 to All Mi on the sworn
schedule fled by the bankrupt,
thought proper to do so. This in
diligence, however, creates no ground
for further indulgence on the part OF
the Assignee, reasonable time hav-
ing elapsed in which the creditor
might have proved his claim. The
claim of Quong Fung stands upon
the same footing.
We find no reason for reversing or
modifying the order of the bankrupt
CIV Court and it therefore stands and
the appeal is dismissed.
V. V. Ashford for creditors; Carter
& Carter for Assignee.
Honolulu, June 26, 1894.