The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-07-28

traint was in all Sl,O5U, part being due 4
% from the proprietors of the "Elele''
newspaper, part (2) by the "Holomua !
Publishing Co." (unincorporSted), and
a 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 5th December,
1894, notices of sale were published,
signed IS. ALLEN, by his attorney, ].
Alfred Magoon," advertising the sale
for 22d December. The sale was con-
tinued to the 2Sth December, and then
to 21st January, 1895; but on the 5th
January Mr.. Magoon was instructed by
defendant Thomas (who was S. C. AL
lens principal and assignor of the lease
of the premises ito 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 20, 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 81 that there is no
property described in the mortgage and
! that it is therefore invalid.
% 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 S25 required by Chapter 1903,
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, u R. l., 491,
this exact question was decided The
question of the validity of the legal ex-
istence of the corporation was not open
/, to defendant. Thomson on Corpora
lions, Sec. SOP, finds the law to be that
: where corporation exists de fdctO
and in fact exercises corporate powers
the question whether it exercises such
powers lawfully cannot be litigated be-
+, tween private parties Gas in this case)
or between private party and the
corporation; the question can only be
} litigated between the corporation and
the state" Numerous cases are cited
in SUPPORT.
~ The Circuit Court had before il
from the hands of the secretary the
minutes of the company where the
mortgage was expressly authorized
; and we cannot understand why this OBJ.
lection was taken.
90 The ground of objection-as tc
: insufficiency of the description of the
property. The mortgage in question re
! fers to the property conveyed to plain.
tiff as being that conveyed to the com
pany by two deeds, one from c. T. Gu
lick, trustee, and one from F. j. Tesla
trustee, both dated May %, 1894 These
! deeds were produced before the Courr
f by clerk of the Interior Department
where they had been deposited on pro
r curing the corporation, and it is stated
! on the Court stenographer's notes by
2 direction, that the deeds describe sub
2 stantially the same property afterward:
: distrained and sold. To this Mr.. Ma
COON is noted as replying, Yes, this i.
: admitted" See page 50 of testimony
= This objection was properly overruled
The defendant also objected to tn,
? admission of the written guaranty O.
i defendant and others as Irrelevant anC
r immaterial. u Reference to it clearly
1 shows that defendant therein expressl!
D recognized the validity of the mort
4 gage, guaranteed it's payment, and We
he then sought to attack it. The fact
2 showed that the object of the mortgage
F.: was to secure money to pay off press
ing obligations, and that 500 of tn
d money was paid to defendants attorne,
: for rent. The Circuit Court was RICH
t in admitting the paper as evidence
e The last exception taken during tn
e trial was that made to the introduction
of the records of the corporation, which
: show at its first and only recorded meet
ing, held May 26, 1894, as follows: "Ol
d motion of A. P. Peterson the presiden
: and treasurer be authorized to negoti
:, ate loan and pledge the property o
r the corporation for such purpose O
n meeting present exigencies. The mo
S ton carried" The fact that no specifi
amount of money was authorized to b
: borrowed does not make the evidenc
Y inadmissible, and it was properly ad
d mitted. The legal presumption wouli
u be from the resolution and the mort
y gage negotiated in pursuance tina
e either enough was borrowed TO "mee
e present exigencies," or that as nue.
n was borrowed as plaintiff was willin
I to lend on such security Certainly i
: did not lie in defendants mouth to de
n ny the authorization to borrow tn
e money when he had reaped the benef
e of it.
r We now consider the other exception
r to the findings of fact and rulings G
y law.
# We hold that the Circuit Judge wa
n right in deciding the alleged distrain
II was invalid on the ground that it wa
s asserted to be for rent due from tire
e distinct parties, as hereinabove Sc
# forth. The Holomua Publishing Com
pany Ltd. was only liable at the dat
d OF the attempted distraint for rent fror
g the date of its Incorporation, May 2,