Volume 11 — Hawaii Reports

<p>Exceptions erom Circuit Court, Fourth Circuit.</p>

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

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

<p>The effect of Section 524 of the Civil Code is to exempt the Collector-General of Customs from liability for duties illegally exacted and received by him as and for duties, although paid under protest.</p> <p>A claim for money so paid is a claim against the Government and is not within the jurisdiction of the Circuit Court, — whether within the jurisdiction of the Supreme Court under Act 26 of the Republic or not.</p>

<p>An appeal having come to this court by plaintiff on a point of law, from the District Court of South Hilo, Hawaii, in which it appears that a “motion” to dismiss was made and sustained, on the ground that a former judgment of that court had decided the ownership of the money sued for, this court reversed the decision of the district magistrate on the ground that the former judgment was not sufficiently pleaded in form or substance, and remitted the case to the District Court for further proceedings.</p>

<p>Appeal prom District Court, Wailuku, Maui.</p>

<p>The day for the annual meeting of a corporation was fixed by the by-laws. The directors changed the day fixed and named another day, and caused notice to be sent to the stockholders that the annual meeting would be held on the day named by them.</p> <p>Held, that without the consent and approval of all the stockholders the meeting held on that day was illegal.</p> <p>Held, that the directors have no power or authority, without the consent of all the stockholders, to alter or change the by-laws of a corporation, nor to change the day of the annual meeting if fixed by the by-laws. The power to change, alter or amend the by-laws is in the stockholders.</p> <p>Held, that officers elected at such illegal meeting were in office unlawfully, and could be ousted by quo warranto.</p> <p>Held, that to obtain a writ of quo warranto, a formal petition duly verified must be filed; an information without such petition is insufficient to cause the writ to issue under our statutes and practice. That a writ of quo warranto must be issued in the name of the sovereign.</p> <p>Held, that where on quo warranto it appears that the persons against whom the writ is directed were not legally elected officers of a corporation, or hold office unlawfully, the court or judge has power under our statutes to order the corporation to hold a new election and call a meeting of stockholders for that purpose, and need not refer the petitioners to the remedy hy mandamus.</p>

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

<p>Appeal from a Decision of Chief Justice Judd, who Deserved all Questions of Jurisdiction.</p>

<p>By the terms of a building contract, the architect’s certificate that the work was performed to his satisfaction was made a condition precedent to the right to payment. The architect refused to give the certificate. The contractors then brought their bill in equity to compel the architect to give the certificate and the owner to make payment, alleging fraud and collusion. Held, the bill was properly dismissed on the ground that there was a plain, adequate and complete remedy at law, so far as there was any remedy at all.</p>

<p>An ouster of the grantee by the grantor from a portion of the premises conveyed by a deed poll is no defense to an action of assumpsit brought against the grantee by the grantor upon a promise implied from the acceptance of the deed by the grantee and a condition therein that the grantee should pay a certain sum weekly to the grantor during his life.</p> <p>Im erest is allowable upon each such sum from the date it became due.</p>

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

<p>Eeserved Questions oe Law.</p>

<p>Evidence that a liquor produced at the trial was “okolehao” and that okolehao was distilled from ti root' and a strong intoxicating liquor, is sufficient to warrant the jury in finding such liquor to be a spirituous liquor.</p> <p>Evidence as to the possession of spirituous liquor by defendant, held to be sufficient to support the verdict.</p>

<p>Act 64, Laws of 1896, provides in See. 1 that “The Minister of the Interior may, upon application of any person, issue to such applicant any license hereinafter enumerated, upon the terms and conditions hereinafter set forth,” and prescribes in Secs. 68-74 the terms and conditions upon which lodging-house licenses may be issued. Held, that the word “may” in Sec. 1 should be construed as “shall” with reference to lodging-house licenses, and that the Minister has not discretionary power to refuse to issue a lodging-house license to an applicant who has complied with the terms and conditions set forth in Secs. 68-74.</p>

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

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

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

<p>A testator devised his property, real and personal, to his wife without words of inheritance, “and further after the death of my wife my property is to he divided; one-third for the heirs of my wife, and the remainder for my children G. B. Koekoe and Ruta Kapehe, and if they shall have died before then for their children.” The wife and children survived the testator and afterwards the wife died. Held, the wife took only a life estate, with remainder, as to one-third of the real estate, to Ruta.</p>

<p>The defense of failure of consideration need not be specially pleaded under our statutes.</p> <p>Particular acts of misconduct cannot be shown for the purpose of impeaching the general credibility of a witness.</p>

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

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

<p>AbEEALS BROM ClR’GUIT JUDGE, FlRST CIRCUIT.</p>

<p>It is censurable conduct for attorneys While acting for a client in one matter to bring an action closely connected with it against bim baying as its ulterior object actual and prospective gains to themselves.</p>

<p>The facts averred, and not the name given by the pleader, determine the offense charged.</p> <p>A finding of “guilty” means “guilty as charged.”</p> <p>The facts averred showed conspiracy in the third degree only, but the offense was called conspiracy in the second degree. The evidence showed conspiracy in the third degree as charged. The Magistrate made a finding of “guilty” without specifying the degree. Held, the defendants were charged with, tried for, and found guilty of conspiracy in the third degree, and there was no error.</p>

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

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

<p>Where there is no statute regulating the resignation of a trustee, a person, after the acceptance of a trust, cannot renounce and resign the office of trustee merely of his own act and caprice. He can only he discharged (a) by a decree of court, (b) by force of a provision in the deed or instrument creating the trust, or (c) by consent of all parties interested.</p> <p>The acceptance of the resignation of the trustee should not be made final by the decree of the court until after an accounting and the appointment of a new trustee and a decree transferring and conveying the estate of the trust to a new trustee.</p>

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

<p>Decree dismissing a bill for the cancelation of a deed on the ground that its execution was procured by fraud, affirmed on the evidence.</p>

<p>A person born in tbe Hawaiian Islands of British parents domiciled in this country is subject to the jurisdiction of this country and is a Hawaiian subject or citizen.</p> <p>George W. Maefarlane being a Hawaiian subject, and having received a bill of sale of the British Steamship “China,” is the legal owner of the said vessel, within the meaning of the Hawaiian statutes on the subject of Registry of Vessels and entitled to have the said vessel registered in his name as a Hawaiian vessel.</p>

<p>The stamp duty upon a bill of sale of a ship should be estimated upon the consideration for the sale without respect to the value of the ship.</p>

<p>A contract for a lease or sublease of lands is “a contract for the sale” of an “interest in or concerning lands” within the meaning of the statute of frauds.</p> <p>Part performance of an original oral contract will not take a subsequent oral modification thereof out of the statute for the purposes of specific performance in equity.</p> <p>A document drawn partly in pursuance of an oral contract but rejected because of material variations therefrom is not such a written memorandum of the contract as will take it out of the statute.</p>

<p>Appeal erom Minister oe Finance.</p>

<p>Taxation ok Costs.</p>

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

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

<p>Set-off. Registration of Copartnership.</p> <p>The only penalties for non-registration of a copartnership, under Chap. 28, Laws'of 1880, are a fine and a liability of one partner for all partnership debts, and where the firm, is a defendant, the plaintiff is relieved of the consequences of non-joinder of a partner as defendant.</p> <p>A firm or partnership not registered as required by law, is not liable for the individual or personal debts of one partner, nor can the debt of one partner due to defendant be set off by defendant against a partnership claim.</p> <p>The statute of set off contains nothing authorizing a judgment for the defendant, who pleads set off, for a larger amount than the plaintiff’s claim. It is doubtful if such judgment can be given.</p>

<p>Wages payable by a tramway company to a driver only on condition that the driver return a larger amount deposited with him for use in making change with passengers, are not subject to garnishment.</p>

<p>Under the Act of 1892 (Chap. 73) respecting the opening of highways, land in Honolulu was taken by the Government over which to open a street. The statutory commissioners made their award and the Minister of the Interior paid the sum into the Supreme Court to abide its decision as to who the rightful claimant is. Held, that the proceeds of the land should” retain the same character as the original real estate and in this case it should be paid according to the will of the testator who devised the land to his daughter S. for life. The reversioners not being now ascertained, and who' they will be depending upon certain named contingencies, the fund is ordered paid to the guardian of the daughter S. for investment, the income to be used for the benefit of the ward.</p> <p>The bond securing this fund to be given by the guardian is to be approved by the Probate Court.</p> <p>Compensation to the guardian in his capacity as counsel in attending the commissioners’ court and the proceedings on this bill to be fixed by the Probate Court and paid out of the current income of the ward.</p> <p>No compensation can be allowed out of the fund to the petitioner as counsel for the contingent remainder men, they not employing him.</p>

<p>Following Vierra v. Ropert, 10 Haw. 343, the Court declines to allow a re-hearing.</p>

<p>Appeal prom Tax Appeal Court.</p>

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

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

<p>Sec. 78, Act 64, Laws of 1896, reads: '“No person holding a merchandise license shall be permitted by virtue thereof, to sell or furnish opium or any preparation thereof, nor any poisonous drugs, nor alcohol, spirituous liquors or other intoxicating drink.” Held, this section does not prohibit the selling or furnishing of the enumerated articles, but merely provides that the selling or furnishing of these things are not permitted by the merchandise license, and hence the defendant, who while holding a merchandise license furnished spirituous liquor to certain persons, should have been charged if at all, not under this section, but under some other section or statute prohibiting the furnishing of spirituous liquor without a license.</p>

<p>The appellate court may remand a hill of exceptions to the trial court for an amendment to supply an omission inadvertently made and grant a continuance for that purpose.</p>

<p>Arrears erom Tax Ai>pear Courts.</p>

<p>The evidence in the case well sustains the decision of the .trial court in ordering judgment for plaintiff.</p>

<p>Assumpsit does not lie in favor of a party against an attorney for costs under the Rule of Court which provides that “attorneys shall be liable for costs of court incurred by their respective clients.”</p>

<p>Wages of an employee are not exempt from attachment under the garnishee process, even though .the debtor (employee) has not a dwelling house with over ¡j>250. Civil Laws, p. 566.</p>

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

<p>The rule that each of several counts must be complete in itself is not violated where promises are alleged in several counts and breaches of all the promises are alleged in a separate paragraph at the end of the complaint.</p> <p>Allegations that a police officer took a sum of money from the person of the plaintiff and placed the sum under the control of the defendant, his official superior and Deputy Marshal, in consideration whereof the defendant promised the plaintiff to pay the same, do not show a cause of action against the defendant officially.</p> <p>Where money is taken tortiously from a person, he may waive the tort and sue in assumpsit.</p>

<p>Decree vacated 'and the bill remanded to a Circuit Judge of the First Circuit with leave to plaintiffs to make such amendments as they may be advised, and for such further proceedings as may be necessary.</p>

<p>A title to an easement is a title to real estate within the meaning of Sec. 1119, Civ. U., which provides that District Courts “shall not take cognizance of actions in which the title to real estate shall come in question.”</p> <p>In such case the action may be brought in the Circuit Court without respect to the amount in controversy.</p>

<p>Appeal erom Circuit Judge, Fourth Circuit.</p>

<p>A District Magistrate may permit a next friend to bring an action, for an infant in bis court.</p>

<p>Appeal prom the District Court op Honolulu.</p>

<p>Appear prom Circuit Court, Fourth Circuit.</p>

<p>District Courts have no power to suspend sentences indefinitely.</p>

<p>1. Special terms of the Circuit Court when called in pursuance of and in accordance with tihe statute, have jurisdiction to try all indictments presented, whether presented at a previous regular term or not and though the accused had been committed to be tried at .a term subsequent to the special term. District Magistrates should commit accused for trial at the “next term” of the Circuit Court and not designate the date of the term.</p> <p>2. An indictment for murder in the first degree describing the offense is hot fatally defective because in its conclusion it does not name the deceased.</p> <p>3. Where a cause has been tried by an impartial jury, the disallowance of a juror for a cause of questionable sufficiency is not ground for reversal; nor when a juror once accepted is thereafter challenged peremptorily; nor when once accepted he is recalled to answer questions suggested either by the juror himself or from the examination •'of other jurors, and is thereafter challenged peremptorily or excluded by the court, provided the jury is not sworn and no evidence has been taken.</p> <p>4. It is not reversible error for the court to decline to order the marshal to allow counsel for defense to have a private interview with certain witnesses for the prosecution who .are in custody of the marshal held under a statutory commitment.</p> <p>5. Questions on the redirect may he allowed in the discretion of the court to enable the witness to make his meaning clear, though not directly connected with any matter brought out on the cross examination, the witness having admitted that he had told some untruths in his previous testimony.</p> <p>6. Where evidence has been introduced on behalf of the defense without objection and undisputed by the prosecution, showing the commission of larceny by a witness for the prosecution of the goods of one of the family of defendants and the demand of a certain sum of money to stop prosecution was paid by the said witness, it is harmless error to forbid further evidence on the facts of the larceny, there being no express' proof of ill will or bias on the part of the witness towards or against the owner of the goods stolen.</p> <p>7. 'Admission of a defendant that he opposed and forbade the commission of a murder is admissible as evidence of his knowledge of tlhe intention to commit the murder.</p> <p>8. On the trial of a person for the offense of murder in the first degree, where there is no evidence upon which the jury can find the defendant guilty of an offense of a lesser degree than the one charged, it is not error to charge the jury that if they believed the evidence of the prosecution they should find the defendant guilty of murder in the first degree or not guilty if they disbelieved the evidence. ,</p> <p>9. By statute questions of law are for the court and the instructions of the court in relation to' the law are binding on the jury. (Chap. • 57, Sec. 4, Laws of 1892.)</p> <p>10.The statute (Page 250, Penal Laws) requires that in a capital case at least forty-eight hours shall intervene between a verdict of guilty and the sentence. The term of the court would expire by limitation within forty-eight hours after verdict. Held, it was not error to postpone the rendition of sentence to the next term of the court.</p>

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

<p>It is not contrary to Article S8 of the Constitution for a Judge to preside over a jury on the second trial of a case, where on the first trial, the same Judge presiding, there was 'a disagreement of the jury and the Judge had given no judgment.</p> <p>Questions on the admissibility of certain evidence stated and considered.</p> <p>Courts should not allow counsel to make comparisons and comments on the acts of jurors in previous cases of the same character as the ■case on trial. The action of a jury in a former case affords no rule for their action in the case before them.</p> <p>Bribery cannot be inferred from the expenditure by a juror who is a poor man, in improvements on his premises, without other incriminating evidence.</p> <p>Quere; if affidavits of jurors of their discussions are admissible?</p>

<p>Verdict held not contrary to the evidence.</p> <p>Evidence as to the value of 'buildings, erected by the defendant or those under whom he claims, on the land in dispute is not admissible in an action of ejectment when there is no claim for mesne profits.</p> <p>A mortgagor is entitled to possession as against all persons other than the mortgagee and those claiming under him.</p> <p>Payment of the mortgage debt when or before it is due revests the title in the mortgagor without a reconveyance.</p> <p>A motion to direct a verdict for the defendant on the ground that the plaintiff had made a deed" absolute on its face to a third party and there had been no reconveyance, held properly refused where the defendant himself had shown by parole evidence that the deed was intended as a mortgage ana that the mortgage debt had been paid and no question had been raised as to the admissibility of such parole evidence in an action at law.</p>

<p>A breach of a condition subsequent in a. deed does not of itself work a forfeiture. The grantor may waive the breach. If he desires to enforce a forfeiture he should ordinarily re-enter, if out of possession. If in possession, his continuing to hold will be equivalent to re-entry provided such continuance is with the intention of enforcing a forfeiture. The presumption, if any, of such intention from the mere fact of possession, is rebuttable, and in this case the finding of a trial judge that such presumption, if it existed, was rebutted by the evidence cannot be disturbed, the evidence not having been brought to this court.</p>

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

<p>OPINION OF THSE JUSTICES. OF THE, SUPREME COURT TO THE ACTING PRESIDENT.</p>

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

<p>The constitutional qualifications required of a person in order to he eligible to the elective office of President, do not apply to the Minister of Foreign Affairs who acts as President, by virtue of the Constitution, during the temporary absence from the country of the President.</p>

<p>Arread erom Circuit Judge, First Circuit.</p>

<p>A covenant in a charter-party to surrender the vessel to the owner at the expiration of the term in as good condition as she now is in, ordinary wear and tear excepted, is presumably made on the assumption of the continued existence of the vessel, and hence, in the absence of any intention shown to the contrary, the loss of the vessel before the expiration of the charter and through no fault of the charterer will excuse performance of the covenant.</p>

<p>Sec. 71, Act 64, Laws oí 1896, provides that lodging or tenement house, 'hotel, hoarding house and restaurant licenses shall he issued upon certain conditions, one of which is “that no intoxicating liquor .shall he furnished or sold therein, except as authorized by law.” The defendant, a licensed restaurant keeper, without a liquor license, gave intoxicating liquor to various persons at various times on the restaurant premises. He, his partner and employees slept on the premises. Held,</p> <p>That the building did not lose its character as a restaurant because a portion of it was occupied as a dwelling.</p> <p>The word “furnish” in the statute may include “gifts” under some ■circumstances’ on the restaurant premises.</p> <p>Ignorance that an act was a criminal offense does not excuse, if the act was done intentionally.</p> <p>The condition relating to the sale or furnishing of intoxicating liquor is not unconstitutional either as being class legislation and not applying to all occupations, or as not being embraced in the subject of the Act which is "An Act to amend, add to and consolidate the laws relating ¡to certain licenses,” &c.</p>

<p>Petition for a Writ or Prohibition.</p> <p>Original Jurisdiction.</p>

<p>Section 69, Gh. 57, Laws of 1892, -as amended by Gh. 109, Laws of 1892, which requires an appellant on appeal from am order of a Circuit Judge at ohambens to pay the costs accrued and file a bond for costs further to- accrue within ten days after the filing of the order appealed from, applies when such appeal is taken to á 'Circuit Court as well as when taken to the Supreme Court.</p>

<p>The G-ovemm&nit is not liable for stamp duty upon its deeds.</p>

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

<p>Plaintiff had a lease of the lower floor and basement of a building. A leak from a W. O. in, the upper story of the building had existed for some time owing to the defective condition of the closet. The water percolated through the floor to plaintiff’s premises. On the night of May 31 an overflow of water from the bowl of the W. C., owing to the clogging of the discharge pipe, occasioned damage to plaintiff. The defendant had notice of the W. C.’s needing repairs, but failed to repair. There was nothing to indicate to plain-' tiff that the overflow would .take place the might that it did. Shutting off the water from the entire building by a cock in the basement, of which the plaintiff had knowledge, would have prevented the overflow, but it would have prevented also the use of the closet and of water for other purposes, by the plaintiff and ■other tenants.</p> <p>Held, that the failure of plaintiff to close the basement cock was not contributory negligence. Judgment reversed and a new trial ordered.</p>

<p>Sec. 1430, Civ. L., which requires an appellant to “deposit a sufficient bond,” &e., does not require the bond to be signed by the appellant himself.</p> <p>Sec. 1459, Civ. L., which provides that no appeal shall be dismissed for insufficiency of the appeal bond unless upon neglect to comply with an order of a Judge directing an amendment, would apply where the bond was not signed by the appellant himself, if his signature were necesary.</p> <p>Sec. 1853, Civ. L., which provides that unrecorded chattel mortgages shall not “be binding to the detriment of third parties, or conclusive upon their rights and interests” does not protect mere strangers or trespassers.</p>

<p>It is the duty of the court to dismiss of its own motion an action against the Government if it appears not to have been brought within the time limited by the statute. An executive officer cannot waive the statute.</p> <p>A statute which alters or repeals a prior statute permitting suits to be prosecuted against the Government to final judgment but without any provision for the enforcement of such judgment, is not unconstitutional as being retrospective.</p> <p>An action against the Government cannot, under our statutes, and for the purpose of taking the case out of the statute of limitations, be held to have been brought when the claim was first presented to the Executive Department.</p> <p>Sec. 524 of the Civ. Code provides that moneys paid for duties under protest shall not be held by the collector to await the ascertainment of duties or the result of litigation; “but whenever it shall be shown to the satisfaction of the Minister of Finance that in any such case more money has been paid than the law requires, he shall refund the same.” Held, under this statute the right of action, if any, accrues when the money is paid, not when demand is made upon the Minister.</p>

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

<p>Gross neglect of tlie duties required of an administrator may subject him to loss of statutory commissions.</p> <p>Where an administrator, in good faith under the sanction of the court, . and with the consent of the parties interested, purchases goods which are used to keep up the stock in trade of his decedent’s business and is held personally liable to the vendor therefor, justice requires that he be reimbursed from the estate.</p>

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

<p>Error to the Circuit Court, First Circuit.</p>

<p>It is not proper cross-examination to ask questions of a witness not relating to anything testified' to by him on the direct.</p> <p>Facts testified to tending to show a want of probable cause for the arrest complained of, reviewed.</p> <p>Tax Collectors are not protected from suits if they issue warrants of arrest of delinquent taxpayers without probable cause and with malice.</p>

<p>Defendant .pleaded guilty in the District Court to the following charge: “District 'Court of Honolulu, Island of OaJhu. Saturday, January 22, 1898. The -Republic of Hawaii ys. Kanalo. Charged with violating Section 5, Act 21, ’Laws Provisional Government during one week prior to January 22, 1898, by conducting and maintaining a certain banking game, to wit, ‘Russian War,’ at which money or something of value is lost or won.”</p> <p>(1) Held, on appeal, that the statement of the venue In the margin of the charge was sufficient.</p> <p>(2) Objections .to the sufficiency of the charge should have been made before pleading.</p>

<p>Defendant ¡had long 'been in undisturbed possession of a railroad track over complainant’s land; complainant, having long maintained a private railroad track to its warehouse near defendant’s track, recently extended its track across defendant’s track and then brought a bill in equity to enjoin defendant from tearing up the newly laid track, to command defendant to quit the land on which its own track was laid,’ to declare this track a fixture and for damages for -continuing trespasses, relying for equity upon “irreparable injury,” want of a “plain, adequate and complete remedy at law” and “'multiplicity of suits.” Held, the ¡bill was properly dismissed on demurrer.</p>

<p>In ejectment where neither party proves title the party having the better right to possession should prevail. One who has been in possession for some time, who claims title under documents purporting to convey it, and who actually has title to an undivided half of the land, ¡has a better right to possession of the other half than one ■who has only just talken possession by force, has no- title, and claims title only on a mistaken idea as to the identity .of the land.</p> <p>A parity producing a witness who proves adverse in the opinion of the court may be permitted to ask the witness whether he has not made inconsistent statements at other -times and prove that he has ■made such statements.</p> <p>The allowance of questions as to the relative sizes of the adjoining plantations of the parties and as to whether the land held hy defendant had not been .put in 'his name hy another to avoid suit, held to be within the discretion of the trial Judge under the circumstances.</p>

<p>In 1866, upon a sworn petition to a Justice of the Supreme Court praying for the adoption of an illegitimate child whose mother was dead, the adoption was decreed. Held, that .the court had the power under Section 853 of the Civil Code to do this and that the order could not he impeached collaterally.</p>

<p>The trial judge granted a new trial on the ground that the damages were excessive, and without allowing a remittitur or restricting the issues to the question of damages. Held, no error, under circumstances.</p>

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

<p>A contract fixing tile charge for expenses of a patient at a hospital to include everything would include a surgeon’s charge for capital operations though not expressly mentioned.</p>

<p>Appeal on points op law prom the District Magistrate of Hilo, Hawaii.</p>

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

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

<p>A party to be entitled to apply to a Commissioner of Water Rights must be “interested” in the controversy respecting a water right, and this interest may be shown by proof of possession under claim of title of the land to which the alleged water right is appurtenant.</p> <p>Where land has a water right, the obstructing of the conduit through which the water is entitled to flow on to the land is a “controversy respecting water rights” within the meaning of Section 3 of Chapter 26 of the Session Laws -of 1888.</p>

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

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

<p>Motion bor Rehearing.</p>

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

<p>Held, under the circumstances set forth in the opinion, that the possession of the mortgagee under a chattel mortgage, covering after-acquired as well as original stock, was sufficient to perfect his title so as to protect him against a distraint of the chattels by the landlord of the mortgagor, although he, the mortgagee, retained the mortgagor to take charge of the chattels for him.</p>

<p>Motion for a Rehearing.</p>

<p>Appeal prom Circuit Court, Fourth Circuit.</p>

<p>Appear prom Circuit Judge, Fourth Circuit.</p>

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

<p>Exceptions can be taken from an opinion of a circuit judge in a jury-waived case.</p> <p>The land demised was described as follows: “All that parcel of land situate in Hamakua, Hawaii, H. I., being 840 acres, more or less, (the amount to be ascertained by actual survey) and being the makai portion of the Ahupuaa of Kukaiau, being that portion of the said land suitable for the cultivation of sugar cane, and being bounded on the north by the ocean, on the east by a deep-gulch, on the west by a deep gulch', and on the south by the northern line of a two hundred acre tract under contract 'of lease to be made in December, A. D. 1883, between the said party of the first part and the said party of the second part, together with all the appurtenances appertaining thereto.”</p> <p>Held: the boundaries of the land demised are sufficiently certain and definite and include all the land within the bounds. The evidence that portions of it are not “suitable for the cultivation of sugar cane,” does not show a latent ambiguity.</p> <p>Held: a description “bounded by a deep’gulch” means to the bottom or middle of the gulch, the lessor owning to the middle.</p>

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

<p>Where the will provides that the trustees shall have “the most ample power to sell and dispose of any lands” and “generally to make such investments as they consider best,” and that “said trustees shall not sell any real estate” but to “continue and manage the same unless in their opinion a sale may be necessary for the establishment or maintenance of said schools (the Kamehameha Schools) or for the best interest- of my estate;”</p> <p>Held: the trustees in the exercise of a sound discretion as to the best interest of the estate may sell lands without application to ' a court of equity for permission so to do.</p>

<p>Appeal on points of law from District Court of Honolulu.</p>

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

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

<p>Appeal on Points of Law from District Court of Honolulu.</p>

<p>On appeal, a decree ordering specific performance of a written contract to assign a lease, affirmed, there appearing to he no defense, -</p>

<p>Appeal prom Circuit Court, Fourth Circuit.</p>

<p>A general appropriation far the pay of appraisers and examiners in the custom house may be disbursed by the collector-general in his discretion according to the agreements he may make with such employees.</p> <p>Where there is a definite amount agreed upon for compensation for services to be rendered by an employee of the government an action upon a quantum meruit for increased duties subsequently performed will not lie.</p>

<p>Exceptions prom Circuit Court, First Circuit.</p> <p>Writ of Error to same Court.</p>

<p>(1) Upon the refusal of the Collector-General of Customs to register a vessel under Chapter XXXII., Laws 1898, the applicant may apply to a. judge of the Circuit Court for a writ of mandamus directing •that registry of such vessel be made. Such application is not. a suit upon a claim against the Hawaiian government, and the Circuit Judge has jurisdiction of the subject matter thereof.</p> <p><2) The registry of vessels is a domestic privilege conferred upon Hawaiian citizens by municipal legislation of the Republic, and is not inconsistent with the joint resolution accepting the cession of the Hawaiian Islands, nor contrary to the Constitution nor any existing treaty of the United States.'</p>

<p>A defect, omission or mistake in one part of the description of land conveyed by grant does not violate the grant, if from the whole description and the reference therein the extent, location and identity of the land can be aseer tained.</p> <p>If in a deed the land conveyed is stated to be that which is described ' in another deed, duly recorded, fr om a third person to the grant- or, the reference to such deed becomes an essential part of a description which may otherwise be ambiguous or insufficient.</p>

<p>■One may be charged in different counts in 'the same indictment as principal and as accessory before the fact in a.n attempt to commit a crime. Such pleading finds support in the general principles of criminal pleading and practice independent of Statutory authority.</p> <p>Where orne is charged in an indictment as principal and as accessory ■before the fact he is not entitled to his discharge because of t'he acquittal of his alleged principal.</p> <p>'There being no errors of law in the record the court will not disturb ■the verdict of a jury where it is supported 'by the evidence.</p>

<p>A Circuit Judge acting by authority of law in a judicial capacity has the right to punish for a contempt of Court.</p> <p>A fine for contempt of court having been, imposed and not paid 'the offender may be imprisoned until it is paid.</p>

<p>Every sovereign matron, has the inherent right to deny 'to aliens the privilege of entering its territory and even to expel them therefrom.</p> <p>It is also the right of every independent state to prescribe the conditions upon which i't will admit 'aliens into its territory and further to.revoke at will a permission or license already granted to an alien to enter, and this, too, without notice to such alien of its intention to thusi revoke the license.</p> <p>The Joint Resolution passed by the Coingress of the United States on July 6, 1898, relating to" the Annexation of the Hawaiian Islands, provided, inter alia, that “there shall be no further immigration of Chinese into the Hawaiian Islands, except upon such conditions as are now or may hereafter be allowed by the laws of the United States.” Held, that by virtue of this provision the United States laws relating to the immigration and exclusion of Chinese were extended to and put in force in the Hawaiian Islands, and are now in force in this country; and, further, that Chinese, whether residing in this country or not prior to July 7, 1898, to whom permits to enter the Hawaiian Islands were issued prior to said date by the Hawaiian Government, are not excepted by the Resolution from the operation of said United States laws, but are also subject to the provisions thereof.</p> <p>'This Court is not a Court of the United States and has no jurisdiction, in habeas corpus proceedings or otherwise, to pass upon the validity of the appointment of a Federal officer or the extent of his powers under Federal laws or the legality of the detention by him under such laws of persons who claim to be illegally in such custody.</p>

<p>Upon a petition to a Commissioner of Water Rights alleging title in certain water by prescriptive use, that it was diverted by defendant and praying for an injunction to prevent its further diversion, it was not competent for the Commissioner to 'award one-half of the water in controversy to petitioner. Such decision is not responsive to the prayer. ¡Held, that the weight of evidence does not sustain the petitioner’s right to' the use of the water sufficiently in order to authorize the injunction. Controverted Water Rights in the lands of Halawa aind Halaula, North Kohala, Hawaii, discussed.</p>

<p>This Court has jurisdiction, in habeas corpus proceedings brought to inquire into the legality of the detention of the petitioners, to construe the United States laws relating to the immigration and exclusion of Chinese, which laws have been extended to these Islands, and to pass upon the validity of the appointment of an officer claiming to act under such laws and the extent of his powers thereunder.</p> <p>The decision in re 'Wpng Tuck and others, ante p. 600, in so far as it holds to the contrary, reversed.</p> <p>The Colleotor^General of Customs of the Hawaiian Islands still has authority to prevent t‘he landing on these shores of Chinese who are prohibited by existing laws from landing.</p>

<p>Appeal erom the District Court of Honolulu.</p>

<p>The finding of facts amid decision of a trial court, jury waived, will not be disturbed unless clearly contrary to the evidence.</p>

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

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

<p>The pnefer&nce given 'by statute to the parents in the order o± appointment of guardians of minors may be deviated from by the judge in Mb discretion for good cause other than the parents’ imc’ompbtency respectively to transact their own business.</p> <p>In this case neither parent had petitioned for the appointment.</p> <p>The welfare of the child is the “polar star” to guide the discretion of the judge.</p>

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

<p>Defendant’s Appeal from District Court of Honolulu, on Points of Law.</p>

<p>Where land owes its value, above the purchase-price from the government, to the fact that it is used for the cultivation of coffee It should not be taxed at the increased valuation, since by the statutes “to encourage the cultivation of coffee and ramie” that which creates the increased value is exempt from taxation.</p>

<p>A Circuit Judge of the Hawaiian Islands has jurisdiction in Admiralty, notwithstanding the annexation -of these Islands to the United States.</p> <p>The obligation resting on the master of a vessel at sea to maintain order and prevent the commission of crime, will, in a proper case, justify his arrest and detention of suspected persons. But the master, if a felony has been committed may not punish a passenger therefor, or one suspected oif being accessory thereto. He may only confine the same, using no more harshness or force in the detention than is reasonably necessary, until investigation by the proper authorities.</p>

<p>A master of a ship confined a passenger in order to .preserve discipline and good order, the llilbellamit, the daughter of said -passenger, insisted -on sharing her mother’s confinement and was .put together -with her mother in a looker for an hour o.r less. Held confinement volun'tarlily submitted -to is no ground of action for .damages against the ship.</p>

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

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

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

<p>(1) A court, -in trying a libel of divorce on the ground of leprosy of the I'iheilee, must he satisfied that the libellea has contracted, the disease known os Chinese leprosy 'and is incapable of cure, amid it is mot sufficient that the evidence ought to satisfy an ordinary and reasonable mam.</p> <p>(2) 'Where a libel for divorce charges the U-bellee -with adultery, it must be shown, that the libel wias filed within one year from the discovery of the illicit intercourse.</p> <p>(3) Where the proofs show by the admission of the libellant that she was aware of the adulterous intercourse of her husband for several years prior to 'tbe filing of her .libel, -the decree should be refused and «the statute admits of mo discretion in the court.</p>

<p>A certificate of approval by the Cabinet, 'im accordance with the 'statutes, of the location of 'the Oahu Railway & Land Company does mat carry ■with it the night to condemn land under navigable waters of 'the harbor of Honolulu and a right of way ver the harbor, where the contemporaneous correspondence between the parties and a contemporaneous lease between them plainly indicate that .the government -had a contrary intention, even though the location approved covers land under navigable waters.</p> <p>The State has the 'possession and control of 'the navigable waters of 'the said harbor and is a trustee 'thereof for the public and cannot absolutely alienate such interest.</p>

<p>Case lies for malicious misuse of process.</p> <p>The action, of trespass quare clausum fregit may embrace the circumstances which accompany and give '■haraete-r to the trespass, irrespective -of whether or not such circumstances might be the subject- of a substantive cause of action.</p> <p>Accordingly a petition in trespass quare clausum fregit, which charges the defendant with fraudulently obtaining a temporary injunction restraining plaintiff from interfering with or preventing the continuous trespasses of the defendant upon the property of the plaintiff, is not open to demurrer on the ground of duplicity or misjoinder of actions, where such additional -matter is averred generally and by way of aggravation, and not with such certainty and particularity -or in s-u-ch a manner as to constitute a distinct, substantive cause of action in case.</p>

<p>A photographer has no lien upon pictures left with him from which to make enlarged copies, for the value of the copies.</p>

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

<p>Errors occurring in circuit courts in actions at law, i. e., term cases, can be considered by this court only when brought up on exceptions, or on a bill of exceptions, or by a writ of error.</p> <p>Appeals do not lie in such cases.</p> <p>In an action of debt a term case, instituted in a circuit court, and disposed of therein at a term thereof upon the pleadings, without any evidence being adduced, and without a trial upon the merits; Held, that defendants’ exceptions therein, which were taken, reduced to writing, allowed and signed by the judge, and filed, was and is in accordance with Sec. 2, of Act 40 of the Laws of 1898, which amends Sec. 74 of Chap. 57 of the Laws of 1892; and that Rule 15 of the Rules of the Circuit Courts does not apply in thisi case; and that defendants are entitled to be heard upon their exceptions, without the same being incorporated in a bill of exceptions.</p>

<p>A widow dowress whose husband died ±n 1849 before the enactment of the statute iof 1852 which gives a widow the right to occupy with the heirs otf tlhe die,ceased her ibusbain'd’is lands after his death so long as the heirs do not object thereto, • taking possession of land previously leased by the guardian of the heir, in which lease the widow joined for her right of dower, has no fiduciary relation, to the heir. She is not a tenant in common with .the heir, therefore, no actual ouster need be proven. If her occupancy satisfies all the necessary 'elements of a title by adverse possession she cannot be disturbed.</p>

<p>A® alleged equitable ‘owner of lamd is mot entitled to an inijumctioin to restrain tibe prosecution of condemnation proceedings against ■tbe bolder of tbe legal title, during the pendency of a suit to have the bolder of the legal title declared trustee of -the land to tbe use of tbe equitable claimant, on tbe ground that tbe bolder of tbe legal title will mot protect tbe interests of .the equitable claimant, there being mo collusion between the plaintiff in tbe condemnation proceedings and tbe bolder of .tbe legal .title.</p>

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

<p>On the ground .of excessive damages a new trial is. granted, and, under the special phases of the case, the new trial is not restricted to the issue of the quantum of damages.</p>

<p>Appeal prom District Court of Honolulu.</p>

<p>A new 'trial is ordered on ¡t/he ground that the evidence was not sufficient to support the verdict on a charge of rape.</p>

<p>Appeal from a Decree of a Circuit Judge of the First Circuit Overruling a Demurrer.</p>

<p>At Chambers, Before Chief Justice Judd.</p>

<p>Unlawful Possession of Opium.</p>