The Hawaiian gazette., 1890-08-26

of accord and satisfaction. All that
the Court can now consider is the
legal operation of that Act The
motives of the legislature nor the
persons intended TO be benefited
cannot control the plain language
| of the law. 1t can hardly be
claimed that the Court could set
aside this Act on the ground 1t was
passed under mistake, yet in no
other manner can its effect be
avoided. There is no ambiguity
about the Act. 1t is simple re-
lease and results to the benefit Of
those liable secondarily IS well as
the princi lal debtor,
" Counsel for the plaintiff insists
that y lien results from the pay
ment by the Government of certain
money to the use of defendants
ancestor. This may be founda-
ton for suit for money had and
received, but it cannot constitute
lien. The only hen which possibly
could be set up. would be the lien
of the mortgage under subrogation.
Approached from this standp oint,
all of the parcels of land IN the
mortgage must be charged pro
rata with the payment. An ae-
count of rents must also be taken.
If the Government can maintain
his suit -, - Nrp MAMA - rDpst
be ehargeable with rents which
have been received by the tenant
put into possession by them. But
it is again urged that the Govern
ment dealt solely with the Crown
Commissioners. The latter took
up this mortgage and went into
possession. 1t is true they took it
up with money loaned to them for
the purpose, but that does not give
the lender any standing in Court,
This consideration seems to have
additional force because the ae-
count between the lender and bor-
rover is certainly settled"
Having, in my decision on the
demurrer e Haw. Rep, 579), gene
thoroughly into the question of law
involved in this case, brief deci-
sion on the merits is all that is now
necessary.
1 find that the plaintiff has
proved all the essential facts al
legged in its petition.
While fully adhering to the view
taken by me on the demurrer that
the doctrine of subrogation sis not
to be applied in favor of one who
has offieiously and as mere vol
unteer paid the debt of another, for
which neither he nor his property
was answerable, and which he was
under no obligation to pay" l am
of opinion that the people of this
Kingdom as represented by its
Legislature had an interest in the
Royal Domain sufficient to take
them out of the attitude of "offi-
cious volunteers.
The preamble of the Act of Jan
uary Sd, 1865, entitled, "An Act to
relieve the Royal Domain from en-
cumbrances, and to render the
same inalienable," recites that ''the
history of said lands shows that
they were vested in the King for
the purpose of maintaining the
Royal state and dignity, and it is
therefore Instantaneous to the
public interest that the said lands
should be alienated or the SAID
Royal Domain diminished" states
correctly the position.
The people have an interest in
maintaining the Sovereign in a
state suitable to his condition, con-
sistent with the traditions and
means of this country, and it hav-
ing been decided by the Supreme
Court and affirmed by the Legis-
lature that the Royal Domain or
"Crown Lands" descended to the
successor to the Royal office, and
not to the personal heirs or devisees
of the Sovereign, 1t is apparent that /!
the people had an interest in them
to protect. For If the rents from
the Crown Lands were devoted to |
the payment of the debts of the |
former Sove reign, or if they " ere
sold for the same purpose: it would |
necessitate larger vote of the
public funds for the prlvy purse.
Therefore, when the Legislature
by the resolution of July 1866 as
sumed the payment of the remain
ing debts of the late Hing, it was
protecting the Crown Lands from
further diminution, and was not a
mere volunteer. Moreover, the
consent of the King *. W to the
provision of the law rendering the
Crown Lands thenceferth inaIlen-
able. and therefore permanent
estate from which to support the