Volume 10 — Hawaii Reports

<p>ERROR TO THE CIRCUIT COURT, ElRST CIRCUIT.</p>

<p>ACTIONS WITH ARREST FOR NON-PAYMENT OE PERSONAL TAXES.</p>

<p>An attorney of this Court took a negotiable promissory note of a client to himself, in order to procure a loan for his client. Not being able to negotiate the note, the attorney, on the same day, took another note of like tenor and amount, which the client secured Dy mortgage, on the understanding that the first note should be destroyed. The attorney negotiated the first note for value, and thereafter negotiated the second note and assigned the mortgage, retaining the proceeds. Held, this was deceit and gross misconduct on the part of the attorney, and he should be dismissed from the roll of practitioners.</p> <p>Held, financial embarrassment is no excuse for dishonesty.</p> <p>Held, the settlement of the second note negotiated, after the rule to show cause issued, does not mitigate his offense.</p> <p>The Court declines to suspend the judgment of the Court until the cases the attorney has in Court are disposed of.</p>

<p>Where a devise is of a “half lot” of a piece of land to each of two persons, and it is uncertain which half lot was intended for one and which for the other, they are tenants in common of the whole piece.</p> <p>A deed by W., a grantee of one of the devisees, of the “Southeastern division” of the whole piece, describing it by metes and bounds, declaring the Northwestern division as the lot belonging to K., the other devisee, being spread on the registry of deeds, is a public declaration upon which the grantees of K. could rely, and W. is estopped from denying that the lot declared in her deed as belonging to K. was K s.</p> <p>When the facts are established it is for the Court to find whether they create an estoppel.</p>

<p>Parole evidence is admissible to identify and locate the land described in a deed, but not to extend the operation of the deed to land not embraced in its descriptive words.</p> <p>'Mere failure on the part of the owner of land to object to its possession and improvement by others, does not estop him from claiming the land, his title being of record, and he having done nothing to induce a belief that he had no title.</p> <p>'The act of an agent does not estop his principal unless done within the scope of his authority.</p>

<p>When cultivated land is trespassed on hy animals, and damage done to the crops, the owner of the land is not compelled to impound the animals, and is not barred from bringing a suit to recover damages resulting from the trespass. It is optional with the owner of the land either to resort to the impounding law, or bring a suit to recover damages.</p>

<p>Exceptions do- not lie from a decision of a Circuit Judge at Chambers in Probate to the Supreme Court. Generally an appeal may be taken from a Circuit Judge at Chambers to the Supreme Court, but it must be heard on the evidence taken below and only newly discovered and material evidence introduced.</p> <p>But if the appeal from a Circuit Judge at Chambers be on the validity of a will or on facts touching the descent of property and the estate exceed the value of $500, the appellant is entitled to appeal to a Jury (p. 894 Compiled Laws), and by Chap. 109 Laws of 1892, he cannot appeal to the Supreme Court.</p> <p>If the appellant in such case desires a re-trial on the facts, he must appeal to the Circuit Court, where he can have a jury at his option or a hearing before the Court, another Judge presiding, and errors of law can then come by exception to the Supreme Court.</p> <p>'When the Circuit Judge at Chambers has made no order refusing probate to an alleged will, the proponent may withdraw an “appeal” taken under the misapprehension that such order had been made.</p> <p>The time within which an appeal may be taken begins to run from the day the order is made.</p>

<p>Exceptions from Circuit Court, First Circuit.</p>

Habeas Coepos. Tlie petition, filed May 20, 1895, and addressed to tlie Cliief Justice, is as follows: Tlie petition of J. 0.

<p>Exceptions from Ciacurr Court, Fifth Circuit.</p>

<p>The Court will not enforce the performance of a contract to convey land obtained by misrepresentation and deceit.</p>

<p>Exceptions prom Circuit Court, First Circuit.</p>

<p>There being evidence sufficient to submit the case to a jury, a motion to discharge the defendant was correctly refused; also the refusal of the motion for a new trial.</p>

<p>The testator had land upon Fort street, Honolulu, which he devised to a trustee, upon trust to “pay the rents, issues and profits received from that portion thereof upon which the Germania Market is now situate” to E. Moorhead for life.</p> <p>The rents of another portion of said Fort street property, being that upon which the “Blacksmith Shop” is now situate, he devised to J. McC'orriston so long as E. Moorhead shall live.</p> <p>At the time of making the will the rest of said property on Fort street was occupied by the “Criterion Saloon,” the rents of which were not specifically devised:</p> <p>Held, the beneficiary, E. Moorhead, of the rents of the Germania Market is not entitled to the rents of the Criterion Saloon.</p>

<p>An unattested holographic will, valid by the laws of a foreign state in which the testator was domiciled at the time of his death, may he admitted to ancillary prohate here, notwithstanding Section 1465 of the Civil Code.</p> <p>Such ancillary prohate may be allowed here after the expiration of five years from the death of the testator, notwithstanding Section 1474 of the Civil Code.</p>

<p>Appeal from DistRxct Court of Honolulu.</p>

<p>Appeal PROM Cieouit -Judge, First Circuit.</p>

<p>Exceptions from Circuit Court, Second Ciecuit.</p>

<p>Exceptions froM Ciecuit Codet, Second Circuit.</p>

<p>Exceptions from Circuit Court, First Circuit.</p>

<p>K. being the lessee of the Ahupuaa of Keei 1, South Kona, Hawaii, made an arrangement with a hui (company) of which he was a member, for the cultivation of the coffee upon the land; the crop being sold and the proceeds divided among the members of the hui equally. After two crops had been disposed of, K. had trouble with the hui and forbade them to enter upon the land, notwithstanding which some members of the hui entered upon the land and did work upon it, at the same time denying the plaintiff’s right to the possession of the land.</p> <p>Held, that an ouster had been shown and that the plaintiff was correct in bringing his action in ejectment.</p>

<p>To impute to another the commission of an offense involving moral turpitude, and which is punishable with imprisonment, is libelous per se if written or printed and published.</p> <p>Damages are recoverable in such case, though no special damages are alleged or proven.</p> <p>It is libelous per se to charge in a printed publication a person with the offense of selling opium, the offense being punishable by imprisonment at hard labor, and its commission involving moral turpitude and subjecting the offender to social degradation.</p> <p>The statute allowing under a plea of general issue the introduction, in defense, of “any matter of law or fact whatever,” it was error to refuse defendants’ evidence of the truth of the defamatory matter, they having pleaded the general issue hut not justification.</p>

<p>EXCEPTIONS FROM CIRCUIT CoüKT, SECOND CIRCUIT.</p>

<p>Questions ReseRved by Ciecuit CoüRT, FiRst Circuit.</p>

<p>A complaint in replevin alleged that certain horses, the property of. the plaintiff, had been wrongfully and contrary to the rights of the plaintiff, taken possession of and withheld from the plaintiff by the administrator. A “claim” for the restitution of the horses had been presented to the administrator, which he rejected. Suit was not brought to enforce said claim within two months from the rejection.</p> <p>Held, that the statute limiting the time within which suits must be brought against administrators (Compiled Laws, pp. -396-7) does not apply.</p>

<p>A pledgor of a benefit certificate, of the nature of a life insurance policy, in the absence of an agreement to the contrary, impliedly undertakes to keep the certificate alive so long as it remains as security, and if he fails to pay the assessments as they become due the pledgee may do so and recover the amounts so paid from the pledgor in assumpsit, even though the payments were made by the pledgee after a repudiation of responsibility by the pledgor.</p>

<p>Exceptions from Ciecuit Couet, Fiest Ciecuit.</p>

<p>Exceptions from Circuit Court, Piest Cieouit.</p>

<p>Decision of the Commissioner on a question of water rights reversed on the evidence.</p> <p>A mere continuance is not a hearing for the purpose of taxation of costs under Chap. XXVI, Sec. 5, Laws of 1888.</p>

<p>Exceptions erom CiRcuit CouRT, FiRst Circuit.</p>

<p>Exceptions from CIRCUIT Court, First Circuit.</p>

<p>Exceptions ERom CiRcuit Court, First Circuit.</p>

<p>The title to a newspaper, the “Evening Bulletin with which is incorporated the Independent,” is not infringed upon hy the publication of a newspaper entitled “The Independent.”</p> <p>Property in a trade-mark cannot he acquired or retained independently of the article which the trade-mark symbolizes.</p> <p>Intentional abandonment of the use of a trade-mark is intention of the abandonment of the right to the trade-mark.</p>

<p>Exceptions FROM Circuit CoüRT, Fiest Circuit.</p>

<p>In a decree affirming the decree below, liberty to apply in the lower court for leave to file a bill of review for newly discovered matter will not be reserved where it appears that such matter might have been discovered by reasonable diligence in time to be available at an earlier stage of the case, and that it would not have altered the result if it had been before the court at the hearing.</p>

<p>On appeal from H. Dickenson, Esq., Special Commissioner of Private Ways and Water Rights.</p> <p>The system of using water for irrigation from the Kauaula stream in the district of Lahaina, Maui, as established by ancient usage, defined by the court.</p> <p>Persons owning land entitled to water on a certain day may consolidate or exchange their supplies of water with others, providing this does not injuriously affect other persons.</p>

<p>A decree granting or denying a divorce, like the verdict of a jury, cannot he set aside if there is sufficient evidence to support it.</p> <p>The amount of alimony rests in the sound discretion of the trial court, subject to modification on exceptions only for cogent reasons.</p> <p>A new trial will not he granted for the introduction of newly discovered evidence which is ¡merely cumulative; nor for the admission of new witnesses known at the time of trial, but to procure whose attendance due effort was not made; nor for the admission of a new witness although unknown at the time of trial, unless the testimony which such witness would give is shown by an affidavit of the witness himself, or unless good cause is shown for the absence of such affidavit.</p>

<p>Appeal from Circuit Judge, First Circuit.</p>

<p>Article 88 of the Constitution does not disqualify a Judge from sitting on a petition for the revocation of the probate of a will previously admitted to probate by himself.</p>

<p>Appeal peom Cmcuir Judge, First Cibouit.</p>

<p>The petitioner obtained an injunction in a foreign court against a foreign corporation doing business in these islands, enjoining it from taking any further proceedings in a suit by the corporation against the petitioner, and moved that the case be suspended and continued until called up by either party. The Circuit Judge, respondent, refused to entertain the motion, for the reason that the corporation and its attorneys were enjoined on petitioner’s motion from appearing to contest the motion, and it would be improper to hear it ex-parte. Held, no error. The Circuit Judge declined to reduce the order refusing to entertain the motion to writing and sign the same. Held, no error.</p> <p>The refusal to entertain the motion is not appealable. It was discretionary with the Circuit Judge to refuse or allow the continuance.</p> <p>It appearing that the discretion of the Circuit Judge was exercised, the signing of the order is not compellable by mandamus.</p>

<p>Appeal erom Circuit Judge, Fiest Ciecuit.</p>

<p>Appeal prom Ciecuit .Judge, First Circuit.</p>

<p>(1) Upon a petition and answer in a contested election case putting in issue all ballots cast, the court will examine all such ballots and declare, in compliance with Article 40 of the Constitution, who is elected.</p> <p>(2) A ballot marked with a cross by the voter, not in the space provided for such cross, but in the square where the candidate’s name is printed, should be rejected. ■</p> <p>(3) A ballot upon which the voter wrote the candidate’s name instead of making a cross should be rejected.</p> <p><4) A ballot upon which appears several straight marks preceding the cross should be rejected.</p> <p>(5) Ballots marked with a cross substantially though not entirely within the prescribed space should be counted.</p> <p>(6) A ballot containing a mark evidently the result of an accident in the printing office, and not likely to attract attention, should not on that account be rejected.</p> <p>(7) A number of ballots were objected to because the crosses made by the voter were imperfectly drawn, in some instances the lines being repeated, and in others not straight. All of them appeared to be honest efforts to make the prescribed cross, and not for the purpose of enabling the ballot to be distinguished. .Held,, they should be counted.</p> <p><8) Where a number of ballots objected to as not complying with the law, if counted or rejected, would not change the result, the court declined to consider them.</p>

<p>A claim of set-off should be specially pleaded; if not pleaded or litigated it is not res adjudícala and may be made the subject of a separate action.</p> <p>Although a party who seeks relief by way of set-off should ordinarily do so by plea or (if both claims have been reduced to judgment) by motion, in the court in which he is defendant, yet equity will grant relief under special circumstances, as where both claims have been reduced to judgment and one of the parties is insolvent, and the remedy by plea or motion was not available to the other party or was not plain, adequate and complete.</p>

<p>A corporation declared a dividend of one dollar per share per month, the first payable on the 3d February.</p> <p>Held, the true relation between the corporation and the stockholder in respect to the declared dividend is that of debtor and creditor, and the stockholder has on demand and refusal an action at law to recover it. It is only in a limited sense that the corporation is a trustee for the stockholder in respect to such dividend.</p> <p>The assertion by the corporation that a third party claims the dividend is no ground for interference of equity.</p> <p>The hill not alleging that equity should take jurisdiction to avoid a multiplicity of suits, the court does not consider the question.</p> <p>Possible depreciation of the value of the stock on account of withholding the dividends accruing is not ground for equity.</p> <p>Le Roy v. The Globe Ins. Go. and Beers v. Bridgeport Spring Go. distinguished. '</p> <p>Demurrer sustained on the ground that plaintiff has a plain, adequate and complete remedy at law.</p>

<p>Appeal from Circuit Judge, First Circuit.</p>

<p>Appeal from District Coubt oe HoNOlulu.</p>

<p>D. filed a claim witli tlie executors under tlie will of a deceased person on February 25, and the executors rejected it on February 26th, and D. commenced her action on April 27. Held, that April 27 was more than two months after the rejection of the claim, and the action could not be maintained under the law requiring suit to be brought “within two months after rejection of the claim.”</p> <p>In computing the time within which an act is to be done, the first day shall be excluded and the last included.</p> <p>The statute, “Act of 1868, amended by Ohap. 10, Laws 1876, to limit the time within which claims of creditors against the estates of deceased persons shall be presented, and suits be commenced to enforce rejected claims,” is a special statute of limitation, often known as “statute of non-claim,” and need not be specially pleaded.</p> <p>The executor or administrator cannot waive the provisions of this statute.</p>

<p>Appeal from District Court oe Honolulu.</p>

<p>Appeal prom Circuit Judge, First Circuit.</p>

<p>Appeal from Circuit Judge, First Circuit.</p>

<p>Appeal from Distbict Couet of Honolulu.</p>

<p>Appeal PROM Commissioner op Water Rights, District of Koolaupoico.</p>

<p>Question ReseRved by CiRcuit Court, First Circuit.</p>

<p>A statute (Chap. 64, Laws of 1892) making punishable the use of “vulgar, profane or obscene language in any street, highway, store, shop or other public place or place of public resort,” is violated when such language is used by a person while on the veranda of his own house, close to a public street, within hearing of persons passing on such street.</p>

<p>A District Magistrate removed from office for cause.</p>

<p>Exceptions from CiRcuit Count, First Circuit.</p>

<p>Specific performance will not be granted of a contract the terms of which are not proved to he definite and certain.</p>

<p>A agreed with B and 0 in consideration of the loan to him of apparatus to be used to float a steamer off the reef when she was aground to pay to B and 0 $6000, which was equal to one-third of the price to be paid A by the steamer and to return the apparatus, and, in case of success, then A to also purchase and pay for the apparatus.</p> <p>The value of apparatus furnished was $2600. The venture failed. B and 0 took no part in carrying out the venture, nor did they in any way hold themselves out as partners of A. There was no actual partnership between A and B and C; and no intent to create a partnership.</p> <p>Held, that B and C were not liable to third parties as partners of A.</p> <p>Held, that the agreement was not a mere cloak or cover to conceal a latent design, nor a device to escape ■ liability as partners while enjoying the benefits of a partnership under the design of a loan.</p>

<p>It appearing to be doubtful whether a dam erected by defendants across a river to raise water for irrigation purposes would obstruct .the flow of water in times of freshets and cause the water to overflow on plaintiffs’ land to the irreparable injury of plaintiffs, an injunction against the maintenance of the dam is withheld.</p> <p>The effect of the dam in backing up the water of the river and causing water to stand in plaintiffs’ drains is injurious to plaintiffs by interfering with the effectual drainage of the land, and defendants are decreed and ordered to open tbe gates of the dam on reasonable notice, whenever plaintiffs desire to drain off their lands.</p> <p>The findings of fact of the lower court, while entitled to great weight, are not as binding and conclusive upon the Appellate Court as the verdict of a jury, but will be subject to review.</p>

<p>Article 97 of the Constitution reads: “From and after December thirty-first, 1895, no public money shall be appropriated or public land conveyed to or for the support or benefit of any sectarian, denominational or private school, or any school not under the exclusive control of the government.”</p> <p>The legislature has authority to exempt from taxes property that is owned or held by any association having or ¡maintaining in- or upon such property any sectarian, denominational or private school, and the exercise of such authority would not be in contravention of Article 97 of the Constitution.</p> <p>An exemption from taxation is not a grant of land or money.</p>

<p>“An Act relating to internal taxes,” passed by the Legislature of 1896, would not be neutralized or repealed by “An Act to provide revenue for the government by the assessment and collection of tax on income.”</p>

<p>A person seeking to enjoin a nuisance is not required to show that the neighborhood of his residence was, until the establishment of the nuisance, a resident district undisturbed by noisy trades and businesses.</p> <p>A right to such injunction may be defeated if it be shown that the neighborhood has been for many years so wholly devoted to noisy trades and businesses that the addition of one more such would not sensibly add to the discomfort of the complainant. This was not the character of the neighborhood in question.</p> <p>The trial court not having made any findings as to which instruments used in the orchestra of a Chinese theatre produce noise that is a nuisance, or during what hours the noise produced by such instruments disturbs complainant’s sleep, the case is remitted to the Circuit Court for a hearing upon these questions.</p>

<p>EXCEPTIONS FROM CIRCUIT CoüRT, FIRST CIRCUIT.</p>

<p>A garnishee wlio took, without objection in the trial court, such steps as amounted in effect to a defense of the defendant, and who took exceptions “for himself and the defendant,” will be considered in this court to have acted under the authority of the statute which provides that he, “upon his desire, shall be admitted to defend his principal.”</p> <p>A Circuit Judge who has heard a case, jury waived, in. term, may render judgment in vacation, under our practice.</p> <p>It is not error for a Circuit Court to proceed with the trial and render judgment pending exceptions to a ruling made in the course of the proceedings; nor for the Judge who has heard the case, jury waived, to render judgment at the same time he decides the case; nor for the clerk to enter judgment four days after it was rendered, no hill of exceptions having been presented.</p> <p>A new trial is ordered unless the plaintiff remits a certain amount held to have been erroneously allowed.</p>

<p>Appeal prom Circuit Judge, First Circuit.</p>

<p>A mortgage was made, recorded and delivered to an antecedent creditor by a person who soon after became bankrupt. The mortgagee had no reasonable cause to believe his mortgagor to be insolvent or bankrupt, or to be contemplating insolvency or bankruptcy, and was a bona fide purchaser for a good consideration.</p> <p>Held, the conveyance was good as against the assignee in bankruptcy.</p>

<p>A decision of the court, jury waived, like the verdict of a jury, is to he supported unless error is clearly shown; and hills of exception are to he taken most strongly against those making them.</p> <p>It cannot he inferred that the trial court, jury waived, overlooked an issue of fact, where it has made a general finding which can he sustained hy the evidence, although it has not expressly referred to the issue in question, and has expressly referred to other issues, the record not showing otherwise that the court did in fact overlook the issue.</p>

<p>The Circuit Judge having sustained a demurrer to a bill in equity for want of necessary parties and on other grounds, this court, sustaining the ruling as to necessary parties, sends the case hack to -the Circuit Judge for amendment as to parties, and without prejudice to the new or the present parties to further appeal after hearing on the other grounds upon which the Circuit Judge sustained the demurrer.</p>

<p>Following Kenway v. Kotley, 5 Haw. 123, tlie Court declined to allow a re-argument.</p>

<p>On an appeal on points of law, the certificate of the magistrate not containing any points of law, the appeal is dismissed.</p>

<p>There being no bill of exceptions, the motion to place the case upon the calendar for the purpose of dismissing the alleged appeal is allowed and the case ordered dismissed.</p>

<p>Exceptions from Circuit Court, First Circuit.</p>

<p>Exceptions eeom Circuit CoüRT, PiRst Cieouit.</p>

<p>The condition in a contract to pay money “when my circumstances, allow and as soon as they allow" is fulfilled hy evidence that the promissor was in receipt of money over and ahoye his reasonable, expenses, with which he could pay.</p> <p>The fact that the executors of such promissor had not assets to pay in full the sum contracted for by their decedent does not show that the condition of ability to pay in the testator’s life-time was not fulfilled.</p> <p>A contract contemplated money to be paid in installments, conditioned upon ability to pay; evidence of ability to pay part of the sum contracted to be paid is a fulfillment of the condition.</p>

<p>Exceptions from CmcoiT Court. First Circuit.</p>

<p>Exceptions from CmcuiT Court, First Circuit.</p>

<p>Appeal from District Court op Honolulu.</p>

<p>Appeal prom Circuit .Judge, First Circuit.</p>

<p>In a partition suit, the question whether a co-tenant has been advanced certain real estate not part of the land sought to he partitioned, is not such a question of title as will deprive the court of jurisdiction.</p> <p>An 'advancement is no part of an intestate’s estate, and a co-tenant of the person receiving an advancement is not a necessary party to a suit for partition of the intestate’s estate.</p> <p>It is not necessary to show ouster to enable one co-tenant to compel another to account for rents received from third parties.</p>

<p>A street railway company which is prohibited by law from charging more than five cents for each passenger using its cars within certain limits, cannot, by causing a change of cars within those limits, acquire the right to charge an additional fare.</p>

<p>EXCEPTIONS FROM CIRCUIT COÜRT, FlETH CIRCUIT.</p>

<p>EXCEPTIONS FROM CIRCUIT COURT, FlRST ClRCÜIT.</p>

<p>Appeal from Circuit Judge, Third Ciecuit.</p>

<p>Appeal eeom CiRcdit Judge, FiRst Ciecuxt.</p>

<p>ERROR TO THE DISTRICT CODRT OF SOUTH KONA.</p>

<p>•Specific performance of an option of purchase contained in a lease will not he decreed after a forfeiture of the lease has been incurred for breach of condition, if such breach has been persistent and wilful on the part of the lessee.</p> <p>A conveyance of leased premises carries with it the right to possession upon a forfeiture for breach of condition.</p>

<p>A’s grantors were sued in ejectment and claimed the entire land, and made no especial claim to a wooden house thereon. Judgment was obtained against A’s grantors for an undivided half of the land. The presumption is, in default of evidence, that the house was a part of the real estate, and A is estopped from showing in subsequent proceedings in partition, that the house was erected by her ancestor in title and is her exclusive property.</p>

<p>ERROR TO THE CIRCUIT COURT, FlRST CIRCUIT.</p>

<p>Questions Reserved by the Circuit Court, First Circuit.</p>

<p>Exceptions from Circuit CoüRt, Fikst CiRcuit.</p>

<p>•The testimony of a clergyman that he was authorized, to solemnize the marriage contract, and that he married to another person one of the parties charged with adultery, is admissible and competent evidence.</p>

<p>Exceptions from Circuit Court, Second Circuit.</p>

<p>Exceptions prom Circuit Court, .Fihst Circuit.</p>

<p>Alibi. There being evidence produced hy defendant tending to prove that defendant was elsewhere than at the place where the offense is alleged to have been committed at the time alleged, the Court was justified of its own ¡motion in charging the jury as to the law of alibi.</p>

<p>The Commissioner allowed the plaintiff all the water in a ditch over defendant’s land for two hours each day. There feeing no evidence on which to fease the decision as to the extent of the right, and not a clear preponderance of evidence as to the existence of the right, the decision is reversed and the case remitted toi the Commissioner for further evidence and decision.</p>

<p>A claim of set-off not having been pleaded, held properly disallowed by the trial judge.</p>

<p>Exceptions from Circuit Court, First Circuit.</p>

<p>Exceptions to a charge on the grounds that it violated the statute against commenting upon the strength of the evidence and gave undue prominence to a particular' portion of the evidence, overruled under the circumstances.</p>

<p>Taxation of Costs.</p>

<p>Exceptions eeom CiRcuit Couet, Fibst Ciecuit.</p>

<p>In a criminal prosecution, the charge, being substantially in the language of the statute, sufficiently sets forth the offense.</p> <p>An appeal from the District Court from a conviction and sentence upon a plea of guilty, presents no issu'e before the appellate court. Such appeal presents the question of mitigation of sentence. The defendant cannot, on such appeal, as of right have a trial de novo.</p> <p>The Queen v. Fernandez, 8- Haw. 273 and The Gov’t v. Mura, 9 Haw. 428, affirmed.</p>

<p>Appeal euom Gibcuit Judge, Fibst Circuit.</p>

<p>Certain, -wines were entered at the Custom House and duties paid thereon at the rate of 15 cents per gallon, according to the statutes levying duties on wines of alcoholic strength under 21 deg.,, and the wines were withdrawn, a sample however being retained,, which proved on testing to he above 21 deg. alcoholic strength, which required duties to be paid at the larger rate of $2 per gallon:.</p> <p>Held, that there was a legal importation, entry and withdrawal and that, the wines once withdrawn, could not be returned to the-custody of the Customs Department for reshipment to California, in order to obtain the drawback of duties.</p> <p>Held, that the wines were legally in the Republic, and no forfeiture-could attach, nor could the wines be returned for the purpose of causing the Customs officers to sell them as unclaimed goods.</p> <p>Held, that the defendants had paid short duties, and were liable to-the Government for the larger rate of duties, which became a. debt due the Government on the withdrawal of the goods.</p>

<p>Equity may make partition between owners of an equitable title without bringing into Court the owners of tbe legal title.</p>

<p>Act 4, Laws of 1896, relating to Public Laundries, held constitutional, affirming The King v. Tong Lee, 4 Haw. 335.</p>

<p>Exceptions erom CmcuiT Court, First Circuit.</p>

<p>Exceptions from Circuit Court, First Circuit.</p>

<p>Exceptions from Outcurr Court, First Circuit.</p>

<p>Exceptions from Circuit Couet, First Circuit.</p>

<p>There is not a conclusive presumption that a deed executed hy an aged grantor for a nominal consideration was originally procured hy fraud, from the mere fact that the grantee afterwards failed to support the grantor as provided in the deed.</p> <p>A deed conditioned for the support of the grantor will not be ordered canceled for breach of the condition, upon a hill framed solely on the theory that the deed was originally procured hy fraud.</p>

<p>Appeal eeom the Assessment op Stamp Duty Made by the Minister op Finance.</p>

<p>Appeal eeom Circuit Judge, Flrst Circuit.</p>

<p>Exceptions from CiRcdit Court, Fibst Ciecuit.</p>

<p>Although a judgment is assets, for the purpose of administration, where the record is, yet, if the judgment debtor removes to another jurisdiction, administration may be granted there also, and the administrator may there maintain an action upon such judgment.</p>

<p>In a declaration the note sued upon was made a part of the declaration and a copy attached. It appears from the note that one A. P. P. had signed it, but he was not joined as a party with the other joint makers. A demurrer for “variance” between the declaration and the note was properly overruled.</p> <p>Failure to allege in the declaration the death of a joint maker of a promissory note who was not made a defendant may he cured by verdict, and is not a proper subject of a motion in arrest of judgment.</p> <p>Quaere, whether a special demurrer or a plea in abatement would lie where non-joinder of one of the joint makers of the note appears on the face of the declaration, and it does not appear whether such maker is alive or dead.</p>

<p>A devise to E. of the benefits of tbe testatrix’s property during ber (E.’s) life, and that E. is not to dispose of tbe property to any one, and if E. should have a child then tbe property shall go to such child:</p> <p>Held, to be a devise to E. for life with a contingent remainder to her children.</p> <p>After the testatrix’s death E. married and had a child, who died: Held, on the birth of the child the contingent remainder became vested, and on tbe child’s death it went to the heirs, who are by the statute its father and mother, as tenants in common.”</p> <p>The second article in the will reads: “If E. should die without children or descendants, then all my property shall descend to V. N. and E. K., the younger sisters of E.”</p> <p>Held, the remainder was not to the first born child of E., and nothing in the will appears to show that the intention of the testatrix was not to include all the children of E. that might be born. The remainder is subject to open and let in 'such after born children.</p> <p>The limitation over to V. N. and E. K. was defeated by the birth of E.’s child.</p> <p>No estate in perpetuity or estate tail is created in E. by this will.</p>

<p>QuestioNs Reserved by Circuit Judge, Fiest Circuit.</p>

<p>A case had been sent up on reserved questions from the Circuit Court, First Circuit, to the Supreme Court. A decision was made in the Supreme Court and the cause sent hack to the Circuit Court for further proceedings. Judgment was entered in the Circuit Court for plaintiff. The defendant then petitioned the Supreme Court for a rehearing.</p> <p>Held, that, on motion supported by affidavit, an order may be made remanding the cause to the' Supreme Court and staying further proceedings in the Circuit Court.</p>

<p>Motion of Rehearing.</p>

<p>A writ of prohibition will not be quashed on' motion when neither the Circuit Court to which it was addressed nor the parties plaintiff prosecuting the case made answer, and where the said Circuit Court was clearly incompetent to exercise jurisdiction in equity, the exercise of which was the ground upon which the prohibition was obtained.</p> <p>The several Circuit Judges and not the Circuit Courts have jurisdiction in equity.</p> <p>Jurisdiction over the subject matter cannot he conferred by waiver.</p>

<p>A verdict which found the date of the death of a certain person upon indefinite testimony, contradicting a record of such death in a hook required by law to be kept, the authenticity of such book and the regularity of its entries not being questioned,' is against the weight of evidence and should be set aside as rendered through improper or mistaken motives .or through-sympathy.</p>

<p>Equity Appeal from Circuit Judge, First Circuit Court.</p>

<p>Tbe statute which directs that the Board of Education shall make a complete census of the inhabitants, showing the number of inhabitants in each district, the number of each sex, such other particulars as the Board may direct, and the increase and decrease of the population, does not authorize the Board to make a census of the wealth of the inhabitants.</p>

<p>There being evidence on both sides of the question as to the time when exclusive possession of land by the defendant’s grantor began, she being a tenant in common with plaintiff’s ancestor, the judgment of the trial court, jury waived, cannot be disturbed.</p>

<p>Appeal erom District Court oe HONOLULU.</p>

<p>Exceptions from CiRcuit Court, First Circuit.</p>

<p>A. chattel mortgage is not void for insufficiency of description of (1) the location, where the chattels are described as “belonging to me and situated in Honolulu, pertaining to the business carried on by me at said Honolulu,” or (2) the amount of indebtedness, where the mortgage purports to be for a valuable consideration and as security for an indebtedness shown by a certain agreement referred to, and for future advances, the limit of which is not fixed, or (3) the time of payment, no definite time being named; nor is it void as to future advances, after such advances have been made, although the mortgagee was not bound to make them.</p> <p>Under the circumstances of this case, as set forth in the opinion of the court, a decree for the cancelation of a chattel mortgage upon the ground that the mortgagor was insolvent and that the mortgagee had reasonable cause to believe him to be insolvent, is reversed.</p>

<p>A person traveling on the tramcars of the Hawaiian Tramways Co. from a point on King street westerly, leaving the car at the corner of King and Nuuanu streets and taking the Nuuanu street car going northerly, is not required to pay an additional fare of five cents when hoarding the second ear. The passenger’s first place of hoarding the car and the place of his destination on Nuuanu street .are both within the termini for which the statute allows only a charge of five cents.</p>

<p>Motion to place cause on calendar and settle bill of exceptions denied, the bill not having been refused allowance by the trial judge.</p>

<p>A charge in a District Court may he less formal than an indictment. The charge in this case held sufficient against numerous objections made thereto' and set forth in the opinion of the court.</p> <p>The Penal Code of 1869 was as a whole enacted as a statute by the Act of July 7, 1870, and, therefore, any particular section or chapter would be law thereafter, even though it might have been previously, as a separate statute before the compilation and enactment of the Code, unconstitutional because its object was not sufficiently stated in its title.</p> <p>It is the privilege of a witness and not the right of the party against whom he is called, to refuse to give testimony that would tend to criminate him; and the judge is not obliged, at the instance of such party and in the absence of any objection by the witness, to instruct the latter that he is not bound to give testimony that would tend to criminate him.</p> <p>Tie rule permitting tie use of iis minutes iy a district magistrate to refresh iis memory, when called as a witness, ield sufficiently complied witi under tie circumstances set forti in tie opinion of tie court.</p> <p>An instruction tiat tie age of a girl must be proved by sworn testimony, and that her personal, bodily or physical appearance should not be taken into consideration, held properly refused, there being sworn testimony as to her age.</p> <p>In a trial for the offense of sexual intercourse witi a female under fourteen years of age, an instruction tiat in order to render credible tie testimony of tie person witi whom tie offense was alleged to have been committed, there should be corroborating testimony by other witnesses, was properly refused, there being no rule making such corroborating testimony absolutely essential, and there being such testimony in this case.</p>

<p>The Hawaiian Government is not liable for the appointment by the Postmaster General of a clerk in the Postal Savings Bank to make deposits as trustee for the plaintiff, such an appointment not being within the real or apparent scope of the Postmaster General’s official duties, and having been ratified by the plaintiff.</p> <p>The Hawaiian Government is not liable for the defalcation of a clerk in the Postal Savings Bank, who as trustee for the plaintiff makes a regular withdrawal of money, and fails to account therefor to the plaintiff.</p>

<p>Relief cannot be had by babeas corpus, though the sentence, imposed by a court of competent jurisdiction, on 'which one is confined, is erroneous in not including a fine. The writ will only lie where the sentence is a nullity.</p> <p>Where the statute provides for both fine and imprisonment, and one of the penalties is omitted, the error will not afford ground of reversal, if the punishment imposed is authorized by the statute.</p> <p>A writ of error is the proper remedy where the sentence is erroneous.</p>

<p>Exceptions FROM Circuit Court, First Circuit.</p>

<p>Appeal from Tax Appeal Court, First Division.</p>

<p>One undivided moiety of a valuable tract of land was leased by one S., a tenant in common, at a certain sum per annum. The moiety of the other tenant in common, H., was not leased but the entire estate was in possession of the lessees, and rent was forgone by the co-tenant D. in consideration of an option to purchase by the lessees of the other tenant, S.</p> <p>Held: that, for the purposes of taxation to the owners of the real estate, the annual rental of the moiety not leased may he properly considered of the same value as that of the undivided moiety under lease, and that the statutory method of fixing the valuation of the whole land at eight times the annual rental, that is, double that of the moiety leased, for eight years, is applicable to this case.</p>

<p>The value of a leasehold, for purposes of taxation, must he determined hy the particular circumstances of each case.</p> <p>The value of a leasehold for taxation purposes is its “full cash” value.</p> <p>The value of a leasehold is not necessarily the net proceeds of the demised estate for eight years. Nor is it necessarily the net income for one year multiplied by the number of years unexpired of the term.</p> <p>Opinions as to the value of a leasehold hy disinterested persons familiar with such matters may be received.</p>

<p>Appeal from Circuit Judge, First Circuit.</p>

<p>Exceptions from Circuit Court, First Circuit.</p>

<p>ERROR TO THE CIRCUIT COURT, FIRST CIRCUIT.</p>

<p>A tenant in common who has made improvements in good faith on the belief that he was sole owner, is entitled to an allowance for the value of the improvements, upon a sale of the property in partition proceedings.</p> <p>Such allowance is not limited to the amount of a counter claim for use and occupation, hut is limited to the value of the improvements, however much they may have cost.</p> <p>But there should he no allowance for improvements made voluntarily by third parties, even though made while the premises were in the exclusive possession of one of the cotenants.</p> <p>An ousted tenant in common is entitled in partition proceedings to- art allowance for tide use and occupation of the premises hy his co-tenant, notwithstanding the ouster was made by such “cotenant in the belief that he was sole owner.</p> <p>Such allowance is limited to the use of the ousted tenant’s share, and to the use of that share as it would he without the improvements made hy the tenant in possession, and to a period of six years prior to suit, and perhaps to the period subsequent to demand.</p>

<p>A creditor’s bill to reach and apply in payment of a debt, any property, right, title or interest, legal or equitable, of a debtor within these islands which cannot be come at or attached or taken on an execution in a suit at law against such debtor, is in the nature of a proceeding in rem, and it is not essential that personal service be made upon such debtor, if not within the jurisdiction of the court, the fixing of the debtor’s personal liability not being the object of the bill. In such a case Section 1230 of the Civil Code is sufficient authority for service to be made upon the absent defendant by publication or otherwise as the court shall order.</p>

<p>(1) A requested instruction on the question -whether representations by an applicant for insurance as to the value of the goods and in his statement of claim, after loss, are fraudulent may be refused if they assume as proved, facts which should be left to the jury.</p> <p>(2) When the charge given sufficiently states the law, the refusal to give instructions in the language requested affords no ground of exception.</p>

<p>Appeal From CiROüit Judge, FiRst Circuit.</p>

<p>Exceptions peom Circuit Court, First Circuit.</p>

<p>An application for a writ of habeas corpus, when made by a person other than the one whose relief is sought, should show either authority for making the application or sufficient reason for the absence of such authority; but the writ, if issued, will not he quashed merely because such showing does not appear in the application.</p> <p>A decision by the proper officer that an alien is within one of the classes prohibited by Act 66 of the Prov. Gov’t from landing in the Hawaiian Islands, is conclusive, subject only to appeal to the Collector General of Customs, and cannot be reviewed by the courts on habeas corpus.</p> <p>The provisions of the treaty -with Japan do not require that Japanese subjects be allowed counsel upon their examination or inspection under said Act.</p> <p>The proceedings under said Act are of an executive, not judicial nature, and would not be void so as to entitle an alien to a release on habeas corpus, either from the fact that he was not allowed counsel or from the fact that the decision of the inspecting officer had not been announced to him.</p>