The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-07-28
OPINION OF THE COURT. BY
JUDD. c.. J.

This is a bill of exceptions bringing
up exceptions taken by defendant to
certain rulings made by Circuit Judge
Perry in the trial of the case heard by
him. jury waived, at the last May
term. and also exceptions to the find
ings of fact and rulings of law made.
The case is replevin by the plaintiff,
mortgage, of the printing presses,
type and other machinery, being the
plant of the "Holomua Publishing
Company. Limited" to recover the
value of the articles so mortgaged, IN
lawfully converted by defendant. The
Court found the following facts: The
mortgage was made and delivered by
the proper officers of the company up
on authorization of its stockholders to
secure the loan of $500 on the 29th May,
1894 The loan in question was fur
Their secured by guaranty in writing
of same date as the mortgage and note.
Defendant was one of the guarantors.
About the 1st November, 1894, Mr.. j.
A. Magoon on behalf of the landlord
of the "Holomua Publishing Company,
Limited" went to the Office of the COM
pany and informed the parties in
possession, being the officers of said
company, that he distrained the goods
in question for rent; thereupon one of
the keys of the said premises was de-
livered to Mr.. Magoon,- the manager
of the company keeping the other, and
the company continued TO use the
goods as Heretofore. This was done
in pursuance of a paper dated list No
vernber 1894 and signed "Holomua
Publishing Co. Ltd. By A. P. Peter
son. Board of Managers, Edmund Nor
RE. Vice-President," as follows:
Whereas the Holomua Publishing
Companv is indebted to S. G. Allen in
the sum of eight hundred dollars for
rent of premises on King street, in
block known as Thomas block, wherein
its publishing business is carried on
to October 31st, 1894; and,
Whereas. said Holomua Publishing
Company is unable to pay the said rent;
and,
Whereas, said S. c. Allen has taken
proceedings to distrain the goods, chat
tells, effects and plant situate and kept
in said building, which includes the
goods, chattels, effects and plant of the
Elele Publishing Company; and,
Whereas, the said Holomua Publish
ing Company desire to avoid the ex-
pense of removal of said property and
desire expressly to waive the require
ments of the statute in that respect,
and desire to permit the sale under
distraint proceedings to take place in
the said premises as though said goods
had been removed.
Now, therefore, these presents wit
ness, that the said premises are hereby
surrendered to said s. c. Allen by said
Holomua Publishing Company, and all
right and claim, thereto is hereby by
the said company relinquished, and the
said S. c. Allen is hereby declared to be
in possession thereof. Said S. c. Allen
is hereby specially authorized and en-
powered to sell the goods, chattels, eff
fects and plant now situate and kept il
said premises as aforesaid, and the
same is hereby acknowledged to have
beeen legally distrained for rent after
publishing notice Of sale thereof fol
fourteen days from the 9Th day of No
yember, 1894, in some daily newspaper
published in Honolulu, unless the sun
OF eight hundred dollars with rent fol
the month of November Of fifty dollars
in addition, and also an attorneys fet
of twenty-five dollars and all costs q
advertising are previously paid.
And it is hereby understood anC
agreed that the Holomua Publishing
Company may continue to conduct it,
business in said premises until the day
of sale on condition that the said S. C
Allen shall not be responsible in any
respect on account thereof, nor for any
Of the goods, chatteIs and effects anC
plant. And on the further condition
that the officers of the said HoIomus
Publishing Company shall at all times
take proper care of the said chattels
and property and not allow the same
to be damaged, destroyed or removed
from the said premises, nor allow the
same to be attached on mespe process
or otherwise.
Dated Nov. LIST, 1894.
HOLOMUA PUBLISHING CO., Lmtd
BY A. P. Peterson.
BOARD OF MANAGERS.