The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-08-17

the name of the company. But as
the defense set up was doubtless
the same as that which they would
have relied on if they had been adj
mitted simply as stockholders, their
answers were regarded as if put in
by them in that character. Brewer
VS.. Boston Theatre, lO4 Mass. 3o',
Brinckerhoff VS.. Bostwick, 80 \. /
Y, 1856, and a mass of other cases
are all in accord.
am referred by petitioners
counsel to a case entitled, In re
Bank of Gibraltar and Malta, Law
Reports, / Chancery Appeal Cases
SO as an authority to sustain their
view, that the stakeholder should |
lie allowed to defend in the name |
OF the company. Here the court |
granted the stockholders leave to |
| file a bill in the name Of the COM
pany against the directors, the petit
TONERS agreeing to indemnify the
company against the costs. The
company was being wound up.
The question whether the stock
holders should be allowed to pro-
coed in their own right or in the
name of the company is not dis
cussed and the case as | understand
went off on the construction of the
/ 165th section of the accompanies
Act, 1862"
I have settled in my mind on the
authorities that a stakeholder has
right to be heard where the corpOr-
alton of which he is a stakeholder
is sued and does not answer and
cannot be made by the stockholders
to take any corporate action owing
to the shares being held in such
proportions that no majority vote
can be obtained. The attitude OF
our case is this. The Waikapu
Sugar Company in the partition suit
was duly served as corporation
it will make no defense. The
rights of Macfarlane as owner of
one-half of the stock may be seri-
ously imperilled if no defense is
made to the suit. His individual
interests court of equity should
regard.
If he, it being impossible for him
to procure corporate action to de-
fend the suit, had come in with his
answer and asked leave to file it, it
would, on the showing now made
in his petition, have been granted.
/ think that an Independent petit
ton was unnecessary, but as these
are new matters of practice | prefer
to consider it as a petition in the
partition suit for leave to defend in
his own interest.
The case of Claus Spreckels ask
ing to be heard for his own interest
| in the petition of Macfarlane against
the Walkapu Sugar Company
stands differently in my mind.
admit that under the same circum-
l stances, either of the two stock
holders each owning an equal share
of the stock would have the right tC
e be heard and to defend a suit which
4 their company would not defend
, But / fail to see any equity in al
: lowing the Hawaiian Commercial
I and Sugar Company, or Claus
Spreckels as trustee for it, to defenC
: suit which his very company has
: brought against the Waikapu Sugar
0 Company. 1t cannot be allowed tC
g sue and then be allowed to resis
. the same suit.
d / therefore decline to allow The
q intervention of Claus Spreckels il
d the second suit and will grant thu
J, petitioner Macfarlane the right t.
defend the partition suit in his OWL
9 name and at his own cost. Mr.
IS Macfarlane being allowed to-anpea
i and defendrortapf -
8 l. guarentseo the partition suit, a
Ell the stockholders of the Waikap
~ Sugar Company, either as plainti
a or defendant, are before the cour
IS The corporation is before the coul
Ut also and when the rights OF the tW
on stockholders who own the entil
ne property of the company in this col
se troversy have been ascertained b
IS the court, the court will have
~ difficulty in making and enforcin
he a decree against the corporation,
ne such be found necessary to prote
ert the rights of either stakeholder,
o. to effectuate any relief to eth
so which may seem appropriate. Cos
Gil divided.
all Hartwell, Carter, Frear & Thur
MS ton for petitioner; F. M. Hatch
OF Claus Spreckels.
re- Honolulu, September 30, 1891.
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