The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-12-02
EXECUTION
WAS RIGHT
Action of u. S. Marshal
Hendry Judicially
Sustained.

Judge Dole, in the United States Dis
trict Court yesterday, rendered deci-
sion everything the motion ''to set aside
and vacate a pretended levy of execu-
ton, and for the recall of the execu-
tion,' which had been. made by Hum
phreys & Galbraith on behalf of Chong
Yock Wing. The motion had been OPP
posed by j. J. Dunno, Assistant Dis
trict Attorney. Incidentally. the deci-'
sion is a certificate to Marshal E. r.
Hendry of considerate and judicious
exercise of his functions when he has
dug of great responsibility and some
unA easantness to perform.
O@png Yock Wing is a member of the
fri of Wing Sang Co, there being
thrM other members thereof. Judg-
mend was rendered against him for
smuggling, on which an execution is
sued. The Marshal levied. taking pos
session of the goods in two stores of
the firm and allowing the firm to carry
on, in the presence of his guard,
cash business, all cash received in such
business being taken possession of by
the guard.
The Marshal advertised the sale of
Chong Yock Wings interest in the
firm, which sale had been put off twice.
One postponement was on account of
a new levy and the other for want of
bona fide bids. After the second sale
the motion now denied was made.
For the first ground of motion it was
stated: THAT there is no authority of
law for seizing the property of a firm
on an execution against an individual
member of a partnership" The deci-
sion holds that IAN execution is prop
erly levied on a partne-ship property,
and a sale made In relation thereto
must be the sale of the undivided in
terest of the judgment debtor, the pur-
chaser taking only the interest which
such judgment debtor, a member of
the partnership, had in the partnership
property, such sale not transferring
any specific component part of the
partnership property to the purchaser,
but an undivided interest which can be
realized only upon an accounting and
settlement of the partnership affairs
The second ground of the motion was
that 1.-The pretended levy and said ex-
ecution on the interest of said Chong
Yock Wing in the partnership of Wing
Sang Co. was Illegal, irregular and
void. On this Judge Dole says in
part:
The responsibility of the Marshal
toward the Judgment debtor in levying
an execution Is very heavy. He is liable
for all losses which occur during his
possession except those occurring from
irresistible causes, and although it is
not necessary that he should remove
the property levied on, and it is prac-
ticaHy undesirable that he should do so
in case of the levy on partnership prop
erty for the debt of a partner, yet he
must exercise sufficient authority and
care to protect such property and hold
the same to answer the exigencies of |
the writ
With some further observation, with |
authorities cited the court says 1.-The |
action of the Marshal as shown by the |
affidavits was a legal levy and con-
sistent with the authorities. He had |
possession of the goods and retained |
such possession and allowed such privi- |
leges to the partnership in order to |
reduce their inconvenience and injury |
as much as possible
In the third place the movants rep |
that the conduct of the United |
States Marshal was a wanton and un |
lawful interference with the business /
Of the firm. Judge Dole refers to the /
postponements of the sale for the rea- |
sons already stated and says:
Il do not find anything in the evil |
ience which shows a disposition to I'M |
necessarily prejudice the movers in this |
case.''
AS to the last ground alleged, that |
the execution is being used to annoy |
and harass the firm the court says it |
is disposed of in the consideration of |
the previous ground, and counsel stated |
IN open court that they did not believe /
The Marshal was Intentionally using his |