Volume 1 — Hawaii Reports

<p>A lease made fco defeat an existing judgment against the lessor, tlie lessee having knowledge thereof, is fraudulent, and void as to third parties.</p>

<p>Notice of a motion for a postponement of trial ought to be given to the opposite party, together with a copy of the affidavit upon which the motion is based.</p> <p>But when this had not been done, the Court granted the motion, upon condition that the costs of the opposite party should be paid instanter.</p>

<p>A bma fide holder of a negotiable note, to whom it was assigned for a valuable consideration before it was due, is entitled to recover against the maker, notwithstanding he may have paid the amount of the note to the original payee.</p>

<p>En leasehold estates for a term of years, delivery of possession was never necessary. In the present age, delivery of possession is net necessary in any conveyance, liow-.ever absolute.</p>

<p>U}he exoneration of a Sheriff by the Court, will not protect him from liability to third parties.</p>

<p>A failure of consideration may always be shown by parol evidence, in defence to an action on a promissory note.</p>

This was a petition to the equity side of the court for the foreclosure of a certain mortgage, and decree of sale of the mortgaged premises. The defendants, Messrs. Brinsmade, Ladd, and Hooper, a mercantile firm of Honolulu, doing business under the name of Ladd &Co., on the 10th day of August, 1844, loaned of the complainant the sum of $15,389 92, and gave him a mortgage on their sugar plantation, &c., on the Island of Kauai, as security.

Motion by defendants to dissolve the attachment issued in this case upon the following grounds: 1. The attachment and proceedings under it are void, the Clerk of the Superior Court not being authorised to issue attachments in cases like this. The authority to issue attachments upon promissory notes rests with the Police Justices of Honolulu and Lahaina, and with them alone. 2. Sufficient facts are not sworn to in the application for process, to warrant an attachment. 3.

This was aa action brought upoa an attachment bond, to recover damages. It appeared in evidence, that the defendant in September last procured an attachment to be issued against the plaintiff, giving the bond on which this suit was brought to indemnify the plaintiff against all wrong injury.

This was an action of assumpsit to recover the sum of $1360 with interest from the 28th day of January, 1848. The plaintiff introduced evidence showing that on the 28th of January last the Peruvian brig “Enriqueta,” of which he was captain, was sold by F. W. Thompson, auctioneer, to the defendant for the sum of $1360, and that the same was a cash saie.

This was an action on the case to recover the amount of three promissory notes, endorsed by the defendant to the plaintiff in October last, in payment of a vessel sold by the plaintiff to the defendant. It appeared in evidence, that the plaintiff in October last sold a schooner to the defendant, paid him for the same, by giving him three promissory notes for $500 each, drawn by Francis Funk payable to defendant.

<p>What constitutes an act of Bankruptcy, within the meaning of the Statute.</p>

This was an action brought to recover the sum of $.9,000 as dam ages on a bond given by (he defendants in February last, on taking out an attachment against the property of plaintiffs.

<p>New trial granted on the ground of surprise, and the discovery of new and material evidence.</p>

This was an appeal from the Police Court of Lahaina. The facts of the case appeared to be as follows: On the 27th day of April last, Joseph S. Adams, master of the American whale ship America, appeared before A. W. Parsons, Esq., Justice of the Police Court of Bahama, and made deposition on oath, that Benjamin B. Parish, H» G. O. Robinson, Thomas H. Lowrey, John M. D. Brown, and John Magreery, sailors belonging to the America, had deserted from his vessel, while lying in the…

The accused was charged with manslaughter in killing John Thompson, on the 22d .day of March last. From the testimony in the case, it appeared that the accused was leading a wild bullock through King street, in Honolulu, on the 22d of March last, when, through carelessness or otherwise, the animal broke loose, and clearing the street of people, brought up in the government cattle pen, near the Blonde House.

The accused was arraigned upon an indictment charging him with assaulting James C. Hadley, in October last, with a sword or cutlass, with intent to murder. It appeared in evidence that the accused being the owner, and Hadley the captain of the lorcha -‘Premier,” fell into a dispute about an item of ten dollars in the Captain’s account, and from words came to blows.

The prisoners were indicted for a conspiracy to defraud William Watson, William Burrill and others, by means of a small padlock of a peculiar construction, upon the opening of which they induced Watson and others to bet. This case was a very interesting one, as showing the cunning and artifice to which men resort to dupe and defraud their fellow men.

This was an action of trespass brought by the plaintiff, a native, to recover damages, alleging that the defendant had taken away one of his kalo patches. The plaintiff proved the taking, and offered in evidence a Royal Patent for the land, based upon an award from the Land Commission, and dated in December, 1850, as proof of his title.

This was an action brought to recover $900 and interest, on a contract. It appealed that in December last the plaintiff entered into a written agreement with the defendant for the sale of the schooner “ Snake.” Macfarlane wrote out the agreement, binding h mself to sell the vessel to Gilmore, and deliver the same on the morrow or whenever it might suit the defendant.

This was gn action of trespass, brought to recover damages against the defendant, one of the police of Honolulu, upon an allegation that he had broken down the plaintiff’s gate, on a certain Sunday in December last, and arrested two of his servants for flying a kite.

This was an action brought to recover the value of certain vessels, which the plaintiff alleged he placed in the defendant’s hands, as a pledge or security for his appearance at the last January term of this C jurt, Mr. Hubertson having signed his bail bond. He further alleged that notwithstanding he made his appearance at the time named in the bond, yet the defendant refused to restore the vessels.

This was an action brought to recover damages, (laid at $10,000,) for the non-fulfillment of a certain contract respecting a cargo of Newcastle coals.

This was an action brought to recover the penalty of $200, for the non-fulfillment of a contract. It appeared that, on the 21st of January last, the defendant contracted with the plaintiff to deliver a certain number of fowls on the 6th day of March following, for which Kealoha was to receive $647. If either party failed to perform his engagements, he was to pay to the other a penalty of $200.

The prisoners were arraigned upon an indictment charging them with conspiracy, in concerting together, and undertaking to defraud Apong of the sum of eight thousand dollars, by alleging that he had bought 454 ounces of gold dust of Henry Marks, and falsely testifying to that effect at the April term of this Court, in a suit instituted against Apong to recover the above amount.

This was an action brought to recover damages for injury done to the plaintiff’s reputation as a merchant, by the allegation of the defendants, that he had robbed them of 454 ounces of gold dust; and was the last in the series of the Marks cases. It having appeared in the course of the evidence, that Miss Janett Marks was a minor, the plaintiff’s counsel, so far as she was concerned, discontinued the suit.

This was an action brought to recover the sum of six thousand three hundred dollars for an alleged violation of the following contract: “ It is hereby mutually agreed by and between the undersigned, that Captain Charles Cobb, of the British barque Elizabeth Archer, shall proceed to Sydney, New South Wales, with all possible dispatch, and there take in on his own or the ship’s account from 200 to 300 tons of Newcastle coals, and proceed to this port to deliver the said coals…

This was an action brought to recover damages for a trespass on a piece of land in Ewa. The plaintiff claimed under a Royal Patent, dated in 1850, which was based upon an award of the Land Commission The defendant admitted that he had possession of the land in dispute, but sought to justify the same by showing a Royal Patent dated in 1849, conveying the land t® him, subject, however, to the rights of tenants.

The King vs. Henry S. Swinton, indicted for embezzlement. It appeared in evidence that the accused, who was the Collector of Customs for the port of Lahaina, converted to his own use, $1405 09 of the public monies, which deficiency appeared by his quarterly accounts, rendered on the first of July last. His accounts were all shown to be correct, and there appeared to be no attempt to hide the conversion, or cover up the deficiency.

<p>A justice of the Superior Court, at chambers, will not interfere, on a writ of habeas corpus, with a commitment for contempt made by a Police Justice, in a matter within his jurisdiction, and while he acts within the scope of his authority.</p>

<p>lessor for a term of years cannot re-enter on the demised premises, for non-payment of rent, unless the lease contains a proviso for forfeiture and re-entry, upon nonpayment.</p>

<p>Held, that the widow was entitled to dower in a lease-hold estate, two hundred and seventy-seven years of the term, remaining unexpired.</p>

<p>On a bill of discovery, in a matter of account, filed in the Equity side of tlie court, Held : that the bill would be entertained, notwithstanding the case was one cognizable at Law; and the Equity court having rightful jurisdiction, for the purpose of discovery, would also give relief.</p>

This was an action brought to recover possession of a lot in Nuua-nu Valley, and damages for its wrong detention. The facts of the case were that one John McCormack leased the lot from Harry Howard in August, 1850, for the term of seven years, and erected a cake and beer shop thereon.

This case was briefly as follows: — The defendants were charged with receiving the brig “ Widgeon” and cargo on consignment from the master of the vessel, he having put into Honolulu, [on a voyage from Sydney to San Francisco,) where his vessel was condemned.

<p>Plaintiff’s attorney must show his authority to bring the suit, if called upon to do so by the defendant or his attorney, previous to the impannelling of a jury to try, or the hearing of the case.</p>

<p>The onus probandi of showing the legal importation and payment of duties on liquors, rests on any party accused of smuggling.</p>

<p>However inartificial or UEteehnical the manner in which an agreement is drawn up, equity will give effect to the real intentions of the parties, as gathered from the objects of the instrument and the circumstances of the case.</p> <p>The court construed an instrument to be a contract of co-partnership, on the ground that its terms plainly contemplated a communion, of interest and a mutuality of profits and losses. .</p>

The defendant was charged with smuggling thirty-six kegs of brandy. This case was an interesting one, and the battle a hard fought one on both sides.

<p>An award of arbitrators, made under a verbal submission by the parties, is equally binding as if made under a 'written submission under seal.</p>

<p>The Equity side of the court having rightful jurisdiction of a matter, will, after discovery, proceed to give relief, in order to avoid the multiplicity of suits.</p> <p>An acknowledgement made before the Lord Provost, Mayor, or other chief magistrate of any large city in Great Britain, France, or the united States, or before a Notary public, and duly authenticated under his hand and official seal, is sufficient evidence of the execution of a deed, or power of attorney.</p>

<p>A minister’s certificate of a marriage, unless it purports to be a copy of the record which the law requires him to keep of all marriages solemnized by him, is not admissible evidence, in cases of crim. con., to prove the marriage.</p> <p>A new trial will not be granted on the ground that improper evidence was admitted on the trial, if there be sufficient evidence without it to warrant the finding of the jury, and it does not appear that injustice has been done by the admission of the improper evidence.</p> <p>A new trial will not be granted on the ground of excessive damages, in an action for crim. con., unless it appears to the court that the jury acted under the influence of undue motives, or of gross error, or misconception of the subject.</p>

<p>A judgment creditor is not entitled to a priority of payment, over creditors by simple contract, out of the estate of a party deceased insolvent.</p>

<p>Where the hurt or injury inflicted is of a severe or dangerous character, and the efficient cause of death, although there be a predisposing condition of the body, without which it would not have been fatal, it is, nevertheless, a killing by means of such hurt or injury.</p> <p>The whipping of servants or laborers is not justifiable under the laws of this kingdom. A master may correct his apprentice with due moderation.</p> <p>Note. — The testimony in this case will be found in full in the Polynesian of January 8th, 1853.</p>

<p>Where an officer is resisted he may repel force by force, and he will be justified in'so doing, even if death should ensue; yet he ought not to come to extremities upon every slight interruption, nor without a reasonable necessity.</p> <p>Gaolers, like other ministers of justice, are bound not to exceed the necessity of the case in the execution of their official duties.</p>

<p>As against creditors, the rule of law is, that no more shall be allowed tbr funeral expenses than is absolutely necessary, regard being had to the degree and condition in life of the deceased person.</p> <p>The court allowed the claim of the clerk of the deceased, for three months salary, due at the time of the decease, to be paid in full, although the estate was insolvent.</p> <p>The court held the administrators justified in continuing the business of the deceased for a time, where they acted in good faith, and for the best interests of the estate.</p> <p>A charge made by the administrators for the services of a clerk in making up their accounts, disallowed.</p> <p>Executoi’S and administrator's may compromise a debt where it is clearly for the interest of the estate to do so, and may also arbitrate disputed claims, when they act with discretion and in good faith.</p>

<p>it is immaterial whether the expression of “ value received” be inserted in a promissory note or not. The law implies, from the nature of the instrument, that it is for value received.</p>

The assault took place on Monday, and the defendant offered to give evidence of a provocation by the plaintiff on the preceding Saturday; that is* to show that the plaintiff had said in a public hotel in the presence of many persons, on Saturday evening, the defendant being absent, that Porter was a liar, blackguard and slanderer.

<p>The judicial power of this Court extends to all cases of admiralty and maritime jurisdiction, and this power may be exercised by the Chief Justice at Chambers.</p> <p>When the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo or freight for the voyage, the charter party is considered as a mere affreightment, sounding in covenant; and the freighter is not clothed with the character or legal responsibility of ownership, lien of the owner for the freight on the cargo shipped by the charterer, not extended by a clause in the charter party binding the vessel, her freight, tackle and appurtenances, on the one side, and the merchandise and freight to be laden on board, on the other side, to the faithful performance of the covenant.</p> <p>The lien held to be waived on a part of the goods which had been delivered, notwithstanding the clause referred to above.</p> <p>Held : that the owner had a lien on a portion of the goods which remained undelivered, for the whole freight remaining unpaid.</p>

This was an action of ejectment, brought to recover possession of certain premises in Lahaina. It appeared in evidence, that on the 7th day of September last, one B. W. Whittit commenced an action of criin. con. against Henry Miller, of Lahaina, .and recovered a judgment of $2,500.

<p>The expenses of entering and quitting a port of distress, to refit, and of discharging and reloading cargo there, and all other necessary expenses for the henefit of all concerned, are to be contributed for as a general average,-without regard to the nature of the damage -which made it necessary to put in for repair.</p> <p>The loss sustained by the sale of goods for the purpose of raising funds to defray the expenses of repairing the ship, is not to be included in a general average contribution, but must be borne by the ship owner alone.</p> <p>The wages and provisions of the master and crew from the time of bearing up for port, until the ship was agaih ready for sea, included in general average.</p> <p>Note, — The above award was published in the Polynesian of May 21, 1853.</p>

This was an action on a promissory note for $1,100. The defence set up was fraud. Yerdict for defendant. In the trial of the above cause the question arose as to the right of one partner to apply the partnership funds, effects or property, to the payment of his own private debts.

<p>The court declared the meaning of the 84th Article of the Constitution, which extends the judicial power “ to all cases of admiralty and maritime jurisdiction and of Sec. 2, of the Act relating to the Judiciary Department, approved May 26,1853.</p> <p>The jurisdiction of admiralty courts is not confined to cases where a maritime lien exists.</p> <p>The attachment of property in an admiralty suit, is not governed by Secs. 6, 7 and 8, pp. 14 and 15 of Vol. 2, Stat. Laws, relating to Police Courts.</p> <p>Nor does Sec. 3, p. 40, of Yol. 2, Statute Laws, apply to suits in admiralty.</p>

<p>Before issuing process to attach the ship on a libel for seamen’s wages, the court summoned the master to appear and show cause against it.</p>

This was an action brought by the plaintiff to recover the price of 150 bbls. of Rye Flour, purchased by the plaintiff of the defendant in Dec'ember, 1852, for exportation to San Francisco, together with all damages resulting to the plaintiff from tiis inability to sell the flour on account of its sourness. The ground of the action was an alleged violation of a warranty on the part of the defendant that the flour was sweet and in marketable condition.

<p>The court adopted the rule of admiralty courts in other countries, as to the verification of the claim of a party intervening.</p> <p>A loose and general allegation of ownership is not sufficient.</p> <p>■ The claim should be accompanied by a stipulation for the payment of costs and expenses, particularly when the claimant resides abroad.</p> <p>Claimant’s attorney must show his authority to appear, if demanded. (See Gregory vs. Hanna, July Term, 1852.)</p>

This was an action of trespass, brought to recover damages against the defendant, who was captain of the American ship “ Emerald,” for injuries alleged to have been inflicted upon the plaintiff, who was cooper of said ship. .

<p>The receiving of bills of exchange for supplies furnished in a foreign port, raises a presumption that they were taken as payment therefor ; but that presumption may be rebutted by proof that the bills were not intended to be taken as an absolute payment, and if they are dishonored, they are no bar to a suit upon the original account.</p> <p>The master has authority to purchase such supplies as are reasonably fit and proper for the ship and voyage, and the furnisher of such supplies is not bound to show that there was a positive necessity for such supplies. It is sufficient if there was an apparent necessity.</p>

<p>When the master of an American ship fails to comply with the Act of Congress of 1803, and produces no crew list, it will he presumed that the seamen discharged from his ship are American citizens; and the burden of proof will rest on the master to show that they are not so.</p>

“The parties in the above entitled cause, by their respective attorneys, appear before the Hon. W. L. Lee, and submit to his decision the question between them on the statement of facts following. “ On the 21st day of October, 1853, the plaintiff paid the defendant the sum of one hundred and twenty dollars, and received for the same the receipt hereto attached.

<p>The Fourth Seotion of the Act of the 24th May, 1853, giving effect to the increase of duties on China and Manila goods, at the expiration of six months, is void, being in conflict with the 7 th Article of the Treaty with Denmark, which requires twelve months’ notice.</p>

<p>In a suit to recover the freight of goods, the consignee may set-off damages arising from the negligence of the carrier.</p> <p>Held: that the carrier was not liable for damage from “ sweating,” the vessel being furnished with proper dunnage, and the goods well stowed.</p> <p>If merchandise in good order is entrusted to a carrier, and it arrives at its destination in a damaged state, the carrier is responsible, unless he can show that the damage is not the result of his negligence.</p> <p>The measure of damages tbr goods lost, is the net price which they would have brought at the port of destination.</p>

<p>When the jury take the law into their own hands, and find a verdict contrary to the law, without regarding the instructions of the court, the court will set aside such a verdict so often as it is returned.</p>

This case was submitted to the court on the following statement of facts : “The undersigned, attorneys for the plaintiff and defendant in the above entitled suit, submit the following statement of the facts in the case. “ The defendant in this case is, and was, on the 20th of May last, master of a certain vessel called the “ Restless,” trading between this port (Honolulu) and San Francisco, in California; that a judgment was obtained at the last April Term of this court, by…

<p>The Com't granted a rule against one of the Circuit Judges of Hawaii, requiring him to show cause against the issuing of the writ, where he refused to grant an appeal. The application had previously been denied by the presiding judge on the circuit, upon the statements of the Circuit Judge, but those statements did not appear of record.</p>

<p>Plaintiff brought his action in his own name, omitting to join his partners, and defendant moved'a non-suit, which was refused. Yerdiot for the plaintiff. The defendant moved to set aside the verdict, which the court refused to do, as it appeared that substantial justice had been done notwithstanding the mistake in not granting the non-suit, and ordered judgment to be entered for the plaintiff, on certain conditions.</p>

<p>To support the plea of tender, and thereby save costs, It must appear that the tender was absolute, and uncoupled with any condition. Money tendered with a demand for a receipt is not a legal tender.</p>

<p>On a motion for a second commission to take testimony abroad, the applicant must set forth what he expects to prove by the witnesses named.</p> <p>If there are bills of sale, deeds, or writings of any kind to be proved, they should be annexed to the affidavit.</p>

<p>Appeal not properly taken : — Practice.</p>

<p>A suit cannot he instituted against this Government, without the permission of the King in Council</p>

<p>It appearing that the principal witnesses against defendant were interested in the fine, the court directed an acquittal.</p>

<p>Plaintiff was convicted of a misdemeanor in the Police Court, gave notice of appeal, and deposited the amount of his fine in the hands of the Deputy Sheriff, to be restored if plaintiff was acquitted above; having neglected to perfect his appeal, held, that he could not recover back his money.</p>

<p>The buyer of goods, upon the discovery of their insufficiency, is hound to give notice to the vendor that they do not conform to the contract, or his silence may be interpreted as a waiver of all right to complain of the goods, and will afford a presumption that they corresponded to the agreement.</p>

<p>The Court intimated an opinion that the usual recital in a deed, acknowledging the receipt of the consideration, is only prima fade evidence of payment, and opeu to explanation.</p> <p>If a vendor sell an estate representing it to he in a flourishing condition, when in fact it is a wreck, the sale is fraudulent, and the buyer may either rescind the sale, or take the property at a proportional reduction of the price.</p>

The facts necessary to the understanding of this case are briefly as follows: In the month of May, 1854, the British ship Conrad was chartered for voyage from Liverpool to Honolulu, to carry a cargo of merchandise.

<p>The registry of a ship is entitled to very little weight as evidence of ownership, and so far from being conclusive, is merely prima fade evidence.</p> <p>When testimony had been taken by a commission, under letters rogatory addressed to a tf. S. District Court in California, it was received, although it did not appear that the testimony had been taken under a special order from the court to whom the letters rogatory were sent.</p>

<p>Verification of plaintiff’s petition, under the Statute of 1848. Practice.</p>

<p>The document presented as a will had been made under peculiar circumstances, and-its execution was not attested by any witnesses. Not admitted to probate.</p> <p>Letters of administration granted to a party here, holding a power of attorney from the intestate’s brother residing in England.</p> <p>Power of attorney admitted to be read, its execution purporting to have been sworn to, by the subscribing witnesses, before the Lord Mayor of York, England, who certified the same officially. (See Ewing et al. vs. Janion.)</p>

<p>‘The court field tfiat tfie duty of 15 per cent, imposed upon Cfiinese goods, by the Act of 1853, could not be levied upon such goods wfien imported in a Danish ship, without a violation of the Seventh Article of the Treaty with Denmark.</p> <p>Note. — Defendant appealed from the decision of Judge Robertson to the fall court, and upon a re-hearing of the case, and the production of the Danish text of the Treaty, which differs in its wording from the English version, the court reversed the above judgment, at the April Term, 1856.</p>

<p>Upon a petition in Equity addressed to the Chief Justice of the Supreme Court, pro- ' cess may be issued returnable before any Justice acting as Chief Justice for the time being.</p> <p>The right of survivorship does not exist between merchant partners, under the Lex Mereatoria.</p> <p>It is the duty of a surviving partner to use all diligence in adjusting and settling up the affairs of the partnership, and in disposing of its property and effects, with a view to a final division of the profits, or proceeds, between all parties interested.</p> <p>The court granted an order requiring the defendant, as surviving partner, to make discovery, and render a full account of the partnership business.</p>

<p>The court granted an injunction against the defendant, the surviving partner of F. J. Porter, and appointed a receiver to settle up the partnership business.</p>

<p>When a bill of exchange is sold and transferred by one'party to another, without endorsement, the law raises an implied warranty, on the part of the vendor, to the extent that the signature of the drawer is genuine. If it afterwards appears that the bill was forged, and the vendee did not take upon himself the risk of its not being genuine, at the time of the transfer, he will be entitled to recover back the consideration paid for it, from the vendor.</p>

<p>The court granted an order against the defendant, as surviving partner, to deliver the books and accounts of the partnership to the receiver, within a given time, under a penalty, he having sent the books out of the kingdom after the appointment of an administrator on the estate of his deceased partner.</p>

<p>A charge of general bad treatment, made by a seaman against the master, cannot be sustained upon the vague statements of some of the crew that the master was “ cross,” or “ pretty harsh,” or “ rather domineering.”</p> <p>In case of disobedience, disrespectful, or disorderly conduct, the master may lawfully correct those under his command, in a reasonable manner; but the master must be careful in the exercise of his power, and not make it a pretext for cruelty or oppression.</p> <p>Note. — See Clark vs. Jagger, January Term, 1854; also Dodge vs. Hempstead and Hepingtoni December, 1856.</p>

<p>The court in “ a cause of possession” will adjudicate upon the real and equitable ownership of a vessel, and is not restricted in its jurisdiction to an adjudication upon the bare legal title, resting upon the registry.</p> <p>Note. — See Post vs. Schooner “ Lady Jane,” March, 1855.</p>

<p>The Court may grant a writ of habeas corpus to a party confined upon process in a civil suit.</p> <p>The court, on habeas corpus, will go behind the process of arrest and detention issued against the defendant in a civil suit, and inquire into the truth and sufficiency of the plaintiff’s allegations, allowing the defendant to controvert those allegations.</p> <p>The plaintiff will not be liable on his bond if he proved that the defendant is indebted to him, although he does not prove that defendant is endeavoring fraudulently to evade the payment of the debt.</p>

<p>The Court expressed its opinion that- a party cannot be legally convicted of perjury for a false statement made in the Probate Court, in a proceeding which is irregular and unauthorized.</p>

<p>Nonsuit, — Practice.</p>

<p>Complainant having obtained a judgment at law against one of the respondents, took out execution thereon, which execution was returned nulla bona. Complainant then filed his bill in Equity, praying that the second respondent who was agent of the former, might be compelled to make discovery as to money securities and other property in his hands, belonging to his principal ; and that the same should be applied to the payment of complainant’s judgment. The court granted the relief prayed for.</p>

<p>The privileges and immunities of Foreign Representatives and their attaches, examined at length.</p> <p>An attache of the French Legation having assaulted his superior, the latter applied to the Minister of Foreign Relations for assistance, by the imprisonment of the offender until arrangements could be made for sending him to France; whereupon he was arrested by the Marshal under an executive order. The court, on habeas corpus, refused to discharge him from custody.</p>

<p>The court explained what constitutes a sufficient account stated to sustain an action for the balance admitted to be due.</p> <p>Forbearance to sue the debtor, either generally or for a reasonable time, is a good consideration for the promise of a third party to answer for the debt.</p>

<p>The Marshal cannot excuse himself for not executing process of arrest against a defendant, on the ground that the bond of indemnity filed by the plaintiff is not stamped. Where the process is issued in a matter of which the court has jurisdiction, he must execute it. t</p> <p>Counsel having filed a plea on behalf of defendant, was called on to show his authority, and having failed^o do so satisfactorily, the plea was struck from the file.</p> <p>The court having decided to amerce the Marshal, assessed the damages without the aid of a jury.</p>

<p>The first section of the Act of 1848, to prevent special pleading, verification of libels in admiralty or bills in equity.</p> <p>The court allowed ten per cent, damages for the cost of re-exeha^ bill of exchange drawn upon parties in New York.</p> <p>The holders are entitled to recover the expense of a re-exchange, actually re-draw tor the amount of the dishonored bill.</p> <p>Interest allowed on the amount of the bill at the legal rate in New payable.</p> <p> </p>

<p>The words, “ absent creditors,” in the 11th Section of the Bankruptcy Law of 1843, includes all creditors who from any cause are absent from the kingdom when claims are being proved before the Commissioners, whether such creditors be i-esideuts here, or foreigners who have never been in this kingdom.</p> <p>When claims presented to the Commissioners are disputed, they must be proved by legal evidence, as in a court of law.</p> <p>Where the subscribing witnesses to the execution of an instrument are resident without the kingdom, secondary evidence will be admitted to prove the execution. (See</p> <p>Fell el als. vs. Parke, July Term, 1855.)</p> <p>In case of a negotiable note, the execution of which is attested by witnesses who are without the jurh diction of this kingdom, it is sufficient for (he plaintiff to pi ove the handwriting of the maker, together with a distinct admission by the maker that he owes the debt.</p>

<p>Held, that the Act of 1851, imposing a special school tax upon foreigners, and persons of foreign, parentage, is not unconstitutional.</p>

<p>A lease for one year, with a preference to the lessee, in case he should desire at the end of that time to take the premises for a further term, does not import a lease from year to year.</p>

<p>Where there appeared a discrepancy between the Hawaiian and English, versions of a statute, the court adhered to the former. ' ’</p> <p>The estray law gives the owner of land trespassed upon a lien upon the cattle trespassing, for the amount of damages; and he may either seize and impound them, as pointed out by the statute, or he may let them go, and sue the owner at law.</p> <p>The owner of the animals may defeat the right of the owner of the land to impound, or make him do so at the risk of paying the costs, by making a tender of a sufficient sum to cover all the damages.</p>

<p>Motion to aismiss the complainant’s bill.</p>

<p>Claimants having applied for letters rogatory, the court coupled the grant with a condition that the claimants should either release the libellants from their bond, or give bond themselves in a like amount with the libellants.</p>

<p>Proper construction of the 21st Section of the Bankruptcy Law of 1848, providing for the suspension of all civil suits against a bankrupt,- declared by the Court. Defendant, being arrested as a fraudulent debtor, declared himself bankrupt, and moved for his discharge from custody under the above provision. Motion refused,</p>

This was an action by a mother against her son, to recover the sum of $270, and interest, upon the allegation that she, her son, a daughter and other relatives purchased a piece of land in common in 1853, she contributing towards the payment thereof the sum of $270; which land was bought in the name of her son the defendant, and had been in the common possession of the purchasers until February last, when the defendant claimed the land as belonging exclusively to him, and…

<p>A conveyance of real estate by the intestate to defendant, in payment of a claim for labor and services, the consideration appearing to be far below the actual value of the property, was treated by the court as a mortgage, and the defendant ordered to re-convey to the administrators on being paid the amount of his claim with interest,</p>

This was a motion for a judgment by default, on a promissory note for $20,000, given by J. T. Wright, as Agent of the Hawaiian Steam Navigation Company, to the plaintiff, his brother. Messrs.

This is an action brought by the plaintiffs, the firm of Melchers & Co., of Honolulu, to recover from the defendant, the Collector General of Customs, the sum of two thousand one hundred and forty-one 8-100 dollars, with interest, from the 27th day of September, 1854 i which sum the plaintiffs aver was an overcharge often per cent, made by the defendant, on the duties paid by the plaintiff's at that date, under protest, on certain goods imported by them in the Danish ship “…

<p>*VVhat is a sufficient description of the goods intended to be mortgaged, in a mortgage of stock in trade.</p> <p>The mortgage contained a clause referring to a schedule, or bill of items, copy of which was in the hands of each party, Held: that it was not necessary to record the sohedule, it not being contained in, or annexed to, the mortgage, and the description of the mortgaged property being sufficiently clear without it.</p>

<p>The mortgage contained a clause allowing the mortgagors to retain the possession of the mortgaged stock in trade, until default, and to continue their business by selling any part of the stock, and replacing the same by other stock purchased iu lieu thereof. Held : that a transfer to one of their creditors, on account, of all the stock in their place of business, could not be upheld under the above clause.</p> <p>Thii'd parties must refrain from interfering directly with the mortgagee’s security, by taking assignments of the mortgaged stock in satisfaction of their claims.</p> <p>The onus was thrown upon parties purchasing the entire stock, to show what portion of it was not covered by complainant’s mortgage.</p>

<p>Chattel mortgages are included in the law relating to the registry of conveyances, Vol. 1 Statute Laws, p. 248, t,->c. 8, under the term, “ pledges of chattel property. ” (Translated in the Hawaiian version, na palapala hoolilo waitoai lewa.')</p> <p>Where there oceurs a radical and irreconcilable difference between the English and Hawaiian versions of a statute, the latter must govern. (See Metcalf vs. Kahai, January Term, 1856.)</p> <p>Mortgages of personal, as well as rgal, property, are required to be stamped and recorded. , > »</p> <p>Note. — See Shillaber vs. Waldo et als., page 21, as to construction of statutes.</p>

<p>A contract made by a married woman, whereby she engages to perform service for another, is not per se void, but may subsist, at least, until the husband shall interfere and put an end to it.</p> <p>Where a wife is living apart from her husband, her employment to work for a third party, cannot affect the husband’s right to her society.</p> <p>Held, that pi- intiffs had no reason to complain of the defendant’s introduction of sewing machines into his establishment, so long as he did not thereby deprive them of an opportunity to earn full wages, by hand sewing, in accordance with their contract.</p>

<p>A party, at the hearing of an application for the appointment of an administrator on his aunt’s estate, stated that “ he had received his share of her property before her death,” and therefore did not claim any share of the property she left at her decease. After the party’s decease, his administrator claimed his share m his aunt’s property, and introduced evidence to show that his admission of having received his shave in his aunt’s lifetime was not true, and made with a fraudulent intent. Held, that his administrator’s claim should be sustained.</p>

<p>An administrator is to be regarded in the light of a trustee, and if he becomes a purchaser of the intestate’s property, the heir at law may come into court within a reasonable time, and have the sale to the administrator set aside, and the property re-exposed to sale; and where the administrator has re-sold the property purchased by him, at a profit, he may be held to account to the heir at law for a share of that profit, being allowed to set off any pre-existing incumbrance paid by him, and the cost of permanent improvements made by him, in the mean time.</p> <p>The court refused to allow the administrator commissions on the sale of real estate, where it appeared that it was not necessary to sell the same, for the payment of debts; and held him responsible for interest on the funds in his hands from the time he was ordered to account by the court.</p>

<p>The Court of Admiralty has power not only to award the possession of a vessel, hut also, at its discretion, to award damages for her wrongful detention.</p> <p>The measure of damages which the owner may recover in such a case is, the interest on the value of the vessel at the commencement of the wrongful detention, and compensation for any deterioration in her value, during such detention.</p>

<p>The taking of a promissory note in settlement of an aoeount, is not a payment or ex-tinguishment of the debt, but merely changes its form, and postpones the time for its payment; hence, there is a subsisting indebtedness upon the note, before it arrives at maturity, sufficient to justify the Collector General, upon the creditor’s request, in refusing a passport to the debtor.</p>

<p>The court adopted the rule of the maritime law of Continental Europe, giving a material-man a lien on the ship, without, any distinction between foreign and domestic ships. No lien, however, is implied where the material-man contracts with the owner in person.</p> <p>A material-man having accepted the promissory note of the owner, in settlement of his account, and received a part payment of the note, he was held to have waived his lien on the ship, by giving a personal credit to the owner.</p>

<p>Motion to release the Schooner “ Yaquero ” from execution.</p>

<p>Motion to dismiss the libel.</p>

<p>The Hawaiian Steam Navigation Company was not a corporation, but a company en- ' joying certain privileges by grant from the Government.</p> <p>The Chief Justice declined to entertain, at chambers, an application to annul the grant of privileges made to the Hawaiian Steam Navigation Company, on the ground that, by the terms of the grant, the Supreme Court in its collective capacity, alone had jurisdiction in the matter.</p>

<p>The due admission of a will to probate, by a court of competent jurisdiction, the judgment being unrevoked, is conclusive as to the validity of the will, and binding upon all persons.</p> <p>Trover by the heir against the relations of the widow, who died before her dower was set off, for carrying off and converting to their own use personal property belonging to the husband’s estate. Held : that defendants were liable.</p>

<p>The Court held that the Act of May 2d, 1856, confiding the settlement of disputes respecting private ways to local Boards of Commissioners, is not in conflict with the 6th Article of the Constitution, which secures the right of trial by jury “in all cases in which it has been heretofore used in this Kingdom.”</p> <p>!She continuous and unmolested use of a way since the year 1841, was held sufficient to create a right of way by prescription.</p>

<p>A motion for a new trial may be made at any time within ten days after judgment has been entered up.</p> <p>A party may, pending a first motion.for a new trial, make a second motion, based upon new and distinct grounds, not known to him at the filing of the first motion.</p>

<p>The court decreed a forfeiture of the exclusive privileges granted by the Government to the Hawaiian Steam Navigation Co., on the ground that the latter had failed to furnish the requisite steam facilities for the inter-island trade, according to their contract.</p>

<p>Though the admiralty courts of this country are not bound to take jurisdiction of controversies growing out of maritime contracts, between foreigners having no domicile in this country, as they are when the parties are subjects or resident here, yet they may lawfully exercise it, and will do so or not as a sound discretion, and the claims of justice may demand.</p> <p>Plaintiff was employed, at Honolulu, as master of the whaleship “ Phoenix” of New London, “ for the remainder of the voyage,” but on returning to Honolulu at the end of a cruise, he was removed from the command by order of the owners, without any apparent cause, Held: that he was entitled to a settlement and payment of his wages at Honolulu.</p>

<p>Hong Kong, although a British possession, is a “ port in China,” within the meaning of the Act of May 24th, 1853, increasing the duties on goods coming from China and the Philippine Islands.</p>

<p>Plaintiff set up a usage among the ship chandlers of Honolulu, to make such advances and furnish such supplies to foreign whaleships as may be asked for by the masters, and upon their statement that such advances and supplies are for the use of the ship, without, making any inquiry as to the necessity, either actual or apparent, for such advances and supplies. Held : that such a usage could not be set up in contravention of the rules of the general maritime law on the subject.</p> <p>In a case where no negligence can be imputed to the creditor, it is necessary, if the owners would protect themselves from liability tor advances made in good faith by third parties, by reason of their having an agent or consignee here to provide necessary supplies, that such agency should be made known, either by a general public notice or by. a special notice to the particular creditor.</p> <p>If the owners have other funds which may be properly applied for that purpose; or a consignee or agent at the place, authorised to make all repairs and supplies; then, the necessity as well as implied authority of the master to borrow money for that purpose no longer exists. The amis of establishing such a state of facts is ou the owners; but the creditor is bound, before making an advance, to use due diligence in ascertaining that there are no other funds, or means of supply provided by the owners.</p> <p>Note. See ease of Spencer vs. Bailey and Gilbrrt, page —.</p>

<p>An officer of an American whaleship contracted to he paid off at Honolulu, “at home prices.” The cowt held this to mean the average price of oil and bone at the vessel’s home port, by latest advices, subject, in the ease of oil, to a deduction for insurance, leakage, landing, guaging, and commissions ; and in the case of bone, to a deduction for insurance, shrinkage, labor, and commissions.</p>