The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1916-03-21
Supreme Court Orders : Judge
Ashford To Sustain Demur-
Ters of Defendants
SAYS COMPANY KNEW .
MANAGER HAD ABSCoRDED
Debt Not Vet Due and Plaintiff
Poweiess TO, Avoid
Being Defrauded

1
Judge Ashford was reversed yester-
day BY the supreme court in an opin,
Ion handed down in the case Of the Ho.
nolnlu Brewing & Mailing Company
against Charles G., Bartlett and Fred
Harrison. The opinion is written by
Associate Justice Quarles and concur.
red in by Chief Justice Robertson
and Associate Justice Watson. al ,
The suit was brought by the brew.
cry against Bartlett, who is a fugitive
from justice, and Fred Harrison, his
attorney.in- fact, to recover on prom
issory note made by Bartlett TO T. A..
Marlowe and by the latter assigned to
the plaintiff company. The note was
for $l555.2O, dated April 25, 1915, due
two years later. Bartlett, who was
manager of the company, got into hot
water, was indicted by the territorial
grand jury on four charges of embez
element, one Of uttering forged paper
and the other Of forgery. He skipped
the Territory and to date the local DO
lice have not been able to bring him
here for trial.
The company sued on the ground
that Bartlett being a fugitive from
justice did not intend to return and
that 1t was the intention of the defend
ants to dispose of whatever property
Bartlett had here and take the pro
ceeds away from the Territory, thereby
making it impossible for the company
to recover in this Jurisdiction.
Ashford overruled Demurrets
Judge Lymer for the defendants in.
terposed ,demurrers to the complaint.
alleging, among other contentious, that
the note was not due and would not
be due, until April %, 1917, and that
layment of it could not be inforced at
this time. The demurrers of the de.
PENDANTS were overruled, but judge
Ashford allowed them an nterlocutory
appeal to the, supreme court with the
result given here. Il
ITO the plaintiffs biIl," says the
supreme court, ''the defendants filed.
heir several demurrers upon the
ground that the said bill does not state
facts sufficient to entitle the plaintiff
to the relief demanded, either by in.
junction or by a discovery, and that
the circuit Judge, sitting in equity, has
no power to grant the relief demanded
by the plaintiff in its said bill. These
demurrers were Overruled by the cir
'uit Judge. We must either affirm or
reverse the order overriding the said
demnrrers.
The controlling question here is:
Has a court of equity in this jurisdic-
ion, under the allegations of fact con
tanned i'm the. bill, power to restrain
debtor from selling and disposing of
his property unless he gives security
for debt not yet duet
Some Passing Observations
eft was taken by the original prom
isee without security, and the obliga.
hon OF payment, by agreement of the
parties, postponed for a period of two
wears; :. The note is negotiable in form.
In other words, the promissee implied
ly agreed to. wait two years for pay
ment without security.
Under the allegations of the bill
the inference arises that when the
plaintiff took the assignment of the
note without recourse it knew that
BARTLETT had absconded, that he had
been indicted for embezzlement, knew
that he, did, not intend to return, and
knew that he was selling and dispos
ing of his property in Hawaii. as the
allegations of the bill show that these
things had occurred prior to the as.
signment of the note in question to the
plaintiff, and there is no allegation in
the bill that these things, or any of
thsm, were unknown to the plain,
Il, The opinion then discusses at con
siderable length the law in the case.
BIN Presents No Equity
In our opinion," concludes the de.
eision, the bill presents no equity
and the facts alleged therein are not
suficient to entitle plaintiff to the re.
lief demanded, wherefore the demur-
rers OF the defendants to the said bin |
should have been sustained.
THE order everything the said de-
murrers, is reversed with costs to the |
appellant and the cause remanded for
further proceedings consistent with the
views herein expressed -
Charles s, Davis, with George A. !
Davis on the brief, represented the
Honolulu Brewing l. Mailing Com
naRy, while Judge William B. Lymer
OF the law. firm Of Lindsay 4 Lymer,
represented the defendants Bartlett |
and Harrison.