The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-12-21

| H0N' "S 81 LIS attorney Samuel M
Damon. That said Chun HOY has
no money Of his own to pay said bal
ance and no securities or property
except those which have been made
over by him to and are now held as
aforesaid by said Hopper under his
mortgages. That there is about $50
tons of rice which will be har-
vested from said rice plantation
within the next four or five
months which will more than
suffice for the payment there.
out to complainant Of said balance
and interest, and that said Hopper
has been requested by complainant
to make over a sufficient amount
thereof to pay said balance and in
terest to complainant which said
Hopper declines to do, although he
we'll knows that out of said proceeds
the said balance and interest can be
paid to complainant, and also all
moneys now owing to said Hopper
by said Chun Hoy, and that he, said
Hopper, will then be in precisely the
same position with said Chun Hoy
and in respect of his said securities
as he would have been in if the said
trust moneys had not been wrong
fully applied. And complainant
submits that said Hopper is charge
able with notice of said misapplica-
ton Of said trust funds by said Chun
Hoy and ought to be declared
trustee thereof and also of said
mortgage securities, to the extent of
said balance and interest to the use
of complainant. And further ought
to be decreed to pay said balance and
interest to said complainant out of
the proceeds of said rice crops next
to be received by him under and
by virtue Of said mortgages, and
that both defendants ought to be
restrained and enjoined from dispos-
ing Of any of said crops or the pro-
ceeds thereof until payment to said
complainant of said balance and in
terest. And the complainant prays
accordingly.
The defendants demur to the bill
of complaint, and for cause of de-
murrer show that the complainant
has not in said bill made or stated
such cause as doth or ought to en-
title him to any such relief as is
thereby sought and prayed for from
or against the defendants. That the
point of law intended to be raised
by the demurrer is whether or not
complainant has a complete and ade-
quate remedy at law.
The plaintiff by his counsel con-
sents that a pro forma decree be
entered sustaining the defendants
demurrer subject to plaintiffs right
of appeal. Decree made accordingly,
from which decree the complainant
appeals to the Supreme Court in
banco. And the case comes here on
said appeal.
This is purely question of juris-
diction, the question Of notice is a
matter for proof when the cause
comes on for hearing on its merits,
so also the question of declaring a
trust is a matter to be decided on
the proofs produced at the hearing
of the case on its merits. The ques-
ton for us is, does the bill on the
whole present matters for the con-
sideration of court of equity, or has
the complainant a complete and ade-
quate remedy at law The bill does
not only seek to recover the money
in question; if it did the plaintiffs
remedy would clearly be an action
at law for money had and received,
but it goes further and prays that
defendant Hopper be declared a
trustee of said money and the secu-
rites to the use of complainant.
Could this relief be obtained by an
action at law, certainly not, it could
only be granted by court OF equity.
A Judgment for the balance and in
terest as claimed, would not in itself
be a complete and adequate remedy
if the ayerments in the bill are true.
We are not to presume that the de-
PENDANTS are able to satisfy such a
Judgment if obtained; a court OF
equity will enforce its DEGREES. If
Chun Hoy had used complainant's
money having control of it as he did
to purchase said rice plantation,
there can be no question complain
ant would have been entitled to
security on the property, if it is true
that the money paid by Chun Hoy
to toG Hopper opp was to reimburse Hopper
for money advanced by him for the
purchase of said rice plantation,
why should not complainant be en-
titled to security on the property
purchased with his money.
Tn Ahuna VS.. Kauahikaua 3 HaW.
n. 1872, the court held ''if there is
any doubt whether plaintiff would
have an adequate remedy at law"
equity will take jurisdiction. =,
We are of opinion that the bill as
a whole presents matters for the
Jurisdiction of court in equity, and
can be completely remedied in no
other court. We therefore overrule
the demurrer. Defendants to an
S~ a. s. Hartwell and Thurston 8
Frear for plaintiff; F. NJ. Hatch and
W r.. Castle for defendants.