The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-03-19

Court hs- no jurisdiction 70 make the
appointment, because there was no
suit brought or pending To which the
appointment Of a receiver was aux
Hilary. But is this objection true?
The petition SETS forth and the evil
dence seems TO show that the defend
ant is q corporation that Is insolvent
and that there Is no one. 20 take charge
OF its property or affairs, practically
that iE mas been abandoned. To IL
further alleged that by careful man
agenent its affairs might De so wound
up as 70 save property, prevent loss
and destruction and enable 10 to meet
it's obligations. While there may be
8 lack OF deGniteness IN the prayer
20 be that of saving the property
Of the corporation for the pUT-
pose OF paying It's debts. The sppofnt
nent Of 2 receiver is clearly auxiliary
TO this. Certainly this il very strong
showing for equitable interference.
And when as is shown 20 De the csse
here corporation is hopelessly insol-
vent and unable to carry out objects
for which 10 is created, the directors
must be regarded as trustees Of the
property for the benefit OF the cred
/. itors and stockholders, and 10 is then
their duty 20 wind I'D the affairs OF
the corporation for the benefit of all
concerned; and when further as is the
case here the majority of the directors
are absent from the country and all OF
them neglect 10 take any steps toward
the execution Of their trust and the
majority Of the stockholders also are
hampertd by provisions of their chart
or and by laws and perhaps partly in
consequence OF this and partly in con
sequence OF lack OF interest neglect to
take such steps a may be possible for
all interests, q Court Of Equity may
very properly appointza receiver to do
that which should done but is
neglected to be dor 10y the qUosj
trustees.
Beach on Receivers. Sec. 404;
| Morawet2 on Private Corpora
tions, Secs. 2s4-5.
It NAV be noted here that none OF
the authorities cited by either counsel
conflict with the above views, but on
the contrary those in point are in sup
port of them.
There seems TO be a mistake with
regard TO the position of the plaintiff
in this matter. This is not q cred
itor's bill in any sense, and there is
no necessity that it should be such.
The relief asked is not, that assets
which cannot be reached by Law
should be put in position by Court
of Equity to become subject to exeeu-
ton. It is on the other hand an APP
pliestion to save property from des-
trueti0n IN 8 manner peculiarly within
the Jurisdiction OF Court OF Equity,
in which q Court OF Law would be
not only helpless, but the result Of
proceedings az desired by Mcdonald
and Ah Hin would, on the showing
made by the evidences, result in the
probable destruction OF at least three
fourths of the property to which cred
itors must look for the satisfaction of
their claims.
There may be some doubt whether
the receiver should be appointed at
the instance of a. mere general creditor
as was dohe in this case. It appeared, |
however, in evidence that the petit
TONER vas also q stakeholder in the
defendant corporation, and that the |
holders of most Of the stock consented |
to the appointment Of receiver, and |
expressed the opinion that this would |
be for the interest of ell concerned.
The petition may be amended by an |
allegation that the petitioner is also 4 |
stakeholder.
The PRAYER also would better be |
amended so as to show more clearly |
the main object Of the bill, the only |
particular prayer aside from that for |
process at present being for the ap
pointmeut OF q receiver. Such amend
ments may be made upon terms to be
named by the Circuit Judge.
The remaining questions before this
Court which arise upon the various
appeals are upon matters which are
within the discretion Of the Circuit
Judge. This discretion does not appear
to have been exercised improperly or
due consideration of the in
terests OF all concerned.
The decree appointing a receiver is
sustained on condition that such |
be made, and the appeals
are dismissed.
Hartwell, Thurston and Stanley for
plaintiffs A. q. NJ. Robertson and
w. A Kinney, for appellants.
Dated Honolulu, February %, 1898