The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-07-25

+ place on the 10th March, 1885, under the
alleged distraint. The rent due the de
+ PENDANT at the time Of the alleged dis
/ traint was in all $1,000, part being duf
I % from the proprietors of the "Elele'
newspaper, part % by the "Holomus
Publishing Co" (unincOrporated) and
d part 90 by the Holomua Publishing
Co. Ltd. a corporation), and the
amount of rent due from each concern
was never apportioned. The amount OF
rent then due from the HOlomua Pub
fishing Co. Ltd. then in possession
was only $3.50. On the 9Th December
1894, notices Of sale were published
signed IS. c. Allen, by his attorney, J.
Alfred MagOOI," advertising the sale
for 22d December. The sale was con
tinued to the 28th December, and then
to 21st January, 1895; but on the 9Th
January Mr.. MdgOOn was instructed by
defendant Thomas (who was S. G. AL
lens principal and assignOr Of the lease
of the premises) TO stay proceedings
until further orders" On the 18th
March, 1895, public notices of sale of the
goods were published daily to and in
Guiding March %, when the sale took
place, and probably owing to protests
by plaintiff and others, the goods were
by defendant bid in for only $3.50, and
thereafter disposed Of at private sale
for $1,000.
The defendant during the trial in
Circuit Court objected to the introduce
ton of plaintiffs mortgage as evidence
alleging % that mortgagor had no cor
porate existence, % that no authorize
ton was shown for the execution of the
mortgage, and CD that there is no
property described in the mortgage and
that it is therefore invalid.
ID The Circuit Court found that the
statute on incorporation Of joint stock
companies, Laws of 1890, Chap 43, had
been complied with-except that the
fee of $25 required by Chapter 1O3,
Laws OF 1892, on articles of association.
had not been paid. The Circuit Judge
properly held that this circumstance
did not affect the validity of the in
corporation of the company IN Huges-
dale Mfg. Co. V. Vanner, II r. l., 491,
this exact question was decided The
question of the validity of the legal eY-
istence Of the corporation was not open
to defendant. Thomson on CORPORA
lions, Sec. 502, finds the law to be that
where corporation exists de fCcf0,
and in fact exercises corporate powers.
the question whether it exercises such
powers lawfully cannot be litigated be-
tween private parties Gas in this easel
or between a private party and the
corporation; the question can only be
between the corporation and
the state" Numerous cases are cited
in support.
20 The Circuit Court had before it /
from the hands of the secretary the |
minutes of the company where the !
mortgage was expressly authorized. |
md we cannot understand why this OBJ (
lection was taken.
CD The ground OF objection--as 10 !
nsufiiciency Of the description of the
property. The mortgage in question re-
ers to the property conveyed to plain
If as being that conveyed to the COM
)any by two deeds, one from G.. T. Gu
lex, trustee, and one from F. J. Tesla,
rustee, both dated May %, 1894. These !
leeds were produced before the Court
~ clerk of the Interior Department,
where they had been deposited on pro-
ur1ng the corporation, and it is stated
IN the Court stenOgrapher's notes by
direction, that the deeds describe sub
the same property afterwards
tistrained and sold. To this Mr.. Ma
5oOn is noted as replying, Yes, this is
admitted" See page 35 of testimony.
This objection was properly overruled.
The defendant also objected to the
omission of the written guaranty of
defendant and others as irrelevant and
Reference to it clearly
hows that defendant therein expressly
recognized the validity of the mort
rage, guaranteed its payment, and yet
he then sought to attack it. The facts
howed that the object of the mortgage
vas to secure money to pay off press
ng obligations, and that $1O0 of the
money was paid to defendants attorney
or rent. The Circuit Court was right
n admitting the paper as evidence.
The last exception taken during the
rial was that made to the introduction
If the records of the corporation, which
how at its first and only recorded meet
ng, held May &c, 1894, as follows: ION
notion of A. p. Peterson the president
md treasurer be authorized to negoti-
lite a loan and pledge the property of
he corporation for such purpose of
Meeting present eXigencies. The mo-
ion carried" The fact that no specific
mount of money was authorized TO be
borrowed does not make the evidence
and it was properly adj
nitted. The legal presumption would
)e from the resolution and the mort
age negotiated in pursuance that
fther enough was borrowed to meet
PRESENT exigencies," or that as much
vas borrowed as plaintiff was willing
o lend on such security. Certainly it
id not lie in defendants mouth TO de-
" the authorization to borrow the
money when he had reaped the benefit
# it.
We now consider the other exceptions
o the findings of fact and rulings of
lw.
We hold that the Circuit Judge was
light in deciding the alleged distraint
vas invalid on the ground that it was
sserted to be for rent due from three
Instinct parties, as hereinabove set
orth. The Holomua Publishing Com
any Ltd. was only liable at the date
the attempted distraint for rent from