The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-10-31
DECISIONS
On APPEALS
Foreclosure Good--Note
OutIaWed--SaIe
Set Aside.

Court, by Justice Wilder. affirms a de-
cree of foreclosure and sale in the case
of w. w Chamberlain VS. Maria J.
Bush and John E. Bush Defendants
had appealed on the ground that the
note and mortgage in question were
Evangelical Association" an incorpor-
'ated body. instead of to the Board of
Hawaiian Evangelical Association"
| corporation, also on the ground that
the premises described in the
mortgage and those decreed to be
sold. The first ground is held not well
taken, and the second is not considered
because no testimony was sent up on
! the point. Smith & Lewis for plaintiff;
C. w. Ashford for defendants.
WRONG ENDORSEMENT.
Justice Hartwell is author of a unani-
nous opinion of the Supreme Court
against the plaintiff in the suit on two
promissory notes brought by F. E.
, Thompson against Whitney & Marsh
Ltd. The notes were for $500 and $1,000
respectively. made by Honolulu & Ha-
waiian Paper Co. Ltd, to the order OF
Fitzgerald Trunk Co, endorsed by
Whitney & Marsh and others, and as
signed to the plaintiff. It is found that
they We're accommodation notes and
that an Incorporation under the laws OF
Hawaii can not endorse such paper
Further, the plaintiff is presumed to
have taken the notes with notice that
Whitney & Marsh's endorsements were
not in the usual course of business and
were for the accommodation Of the
maker. Thompson & Clemens for
plaintiff, Thayer & Hemenway for de-
fendant.
/ PACIFIC HEIGHTS RAILWAY.
| Chief Justice Frear writes the unani-
nous opinion of the Supreme Court af-
firming the order of Judge Robinson
which set aside the commissioner sale
of property in the case of William o.
Smith, trustee. VS. The Pacific Heights
Railway. Co., Ltd, Honolulu Rapid
Transit & Land Co., Ltd. c. G. BalIen-
tyne and G. S. Desky. 1t was claimed
that the property cost $4,000 exclusive
of the right of way only four years
before the suit of foreclosure was
brought It was bonded for $4,000. The
property was sold as a whole for S1100,
excepting a certain cable, which was
not sold, and a steam condenser which
was sold separately for 800. It was
recommended by the commissioner in
his report that the sale be not confirmed
owing to inadeQuacy of price. The
syllabus of opinion is as follows:
"a judicial sale may be set aside be-
fore confirmation for such gross made
Quacy of price as shocks the conscience
or raises a presumption of unfairness,
but not for mere inadequacy unless ac-
companied by other circumstances such
as fraud, accident, mistake, etc
Whether such sale should be set
aside or confirmed is largely a matter
of sound judicial discretion, and a deci-
sion by the trial judge in a case of this
nature should not be reversed unless
clearly erroneous"
Castle & wilmington for Rapid Tran
sit Co. and Ballentyne; Smith & Lewis
and L. j. Warren for the trustee;
Thayer & Hemenway for P. H. r. CO.
and Desky.
! CASES HEARD.
! The following cases We're argued and
submitted yesterday, excepting the last
one but partly heard:
American Hawaiian Engineering e
Construction Co. VS.. Territory OF Ha-
wall Motion to amend amended petit
ton. Castle & Wilmington for plant
if: NJ. F. Prosser for defendant.
N. K. Lyman VS.. Chas. K. Mcguire,
Auditor County of Hawaii. Mandamus.
Carl S. Smith for petitioner; Holmes &
Stanley for respondent.
Territory of Hawaii ex. rel. J. T. Moir
VS. Knell. Writ of quo warranto. Same