Volume 12 — Hawaii Reports

<p>In ¡partition, if one ¡eotenant has laid out necessary and reasonable expenditures for taxes, purchase Of the common estate, and litigation in its ¡behalf, repayment may ¡be directed.</p>

<p>A motion to quash, an answer to an alternative writ of mandamus was overruled on the ground that the allegation of ia certain fact in the answer was a sufficient har. The 'petitioner could not inabe an issue of fact because he had made the same allegation in his petition. Held, the proper practice was to dismiss the petition and not allow a discontinuance.</p>

<p>■Where a hill of revivor states facts showing that a party plaintiff who was a minor at the institution of the original suit has attained his majority and the answer shows that such minor claims rights adverse to the other plaintiffs, he may have 'his name stricken from the record as a party plaintiff in the original suit.</p> <p>Although as a general rule a hill of revivor puts in issue only -the question of who the heirs or representatives -of the deceased party are, and no new matter on the merits of the original suit should he set forth in the answer nor relief, which goes to the merits of the original suit prayed for, yet where such answer shows ¡that the party filing it ¡has interests adverse to 'those of the other plaintiffs such matter .may then ¡be material in determining whether or not such defendant in the hill of revivor is entitled to 'have his name stricken from the record's as a party plaintiff in the original suit.</p> <p>Where it appears ¡from the whole record that a party having .such adverse interests to the other parties plaintiff has had his name stricken from ¡the record .as a party plaintiff by this court on an appeal from a decree on the merits of such original suit, and has thereafter. when again brought before the court on other proceedings, sought to contest the claim, of the other parties .plaintiff, he is entitled to have his day ¡in court on such adverse claim.</p>

<p>A grant of a remedy at law by a statute wbicb is merely permissive does not exclude or abrogate a similar remedy previously existing in equity.</p> <p>A subsequent vendee is not a proper party to a suit in equity by a prior vendee against tbe common vendor to recover tbe first deed.</p>

<p>An answer to a bill in equity should be signed by respondent, and sworn to by him, unless tbe oath be waived by tbe bill.</p> <p>An unsworn answer, .signed by an attorney for defendants, is no answer.</p> <p>A receipt for money by a wife in .part payment of land .of bis wife, her name being written by her husband and orossmark affixed by her, she having agreed verbally to tibe sale, and .the party purchasing immediately entering into possession of tbe premises, binds tbe wife, and .entitles the purchaser or bis heirs to a decree of specific performance.</p>

<p>A devise to John, and if he dies and leaves no living son, then to his sister Elizabeth, first, and if she has died, to her sisters then living with their daughters and granddaughters share and share alike. Elizabeth survived John. Held, 'on the death of John without a son living an estate in fee passed to Elizabeth.</p>

<p>Marriage of a female ward under guardianship as a spendthrift does not of itself terminate such guardianship, but the guardian may he discharged “by any judge in probate when it shall appear to him, on the application of the ward, or otherwise, that said guardianship as no longer necessary.” (See Civil (L., Section 1975.)</p> <p>The court denied motion to discharge guardian.</p>

<p>The Constitution of the United States was designed to meet the requirements of a sovereign nation and must be construed with reference to recognized principles of municipal and international law; it implies the power to acquire territory by cession or conquest, and that power carries with it all necessary and proper incidental powers; among these is the power, recognized by the law of nations and founded on necessity, to permit, either through inaction or by positive provision, the government of a newly acquired country to continue for such reasonable time as may be deemed necessary and proper by the political department of the acquiring government; and this is so whether the country is acquired by conquest or cession, by treaty or joint resolution.</p> <p>The Joint Resolution of Congress to provide for annexing the Hawaiian Islands to the United States provided, among other things, that, “Until legislation shall be enacted extending the United States customs laws and regulations to the Hawaiian Islands the existing customs relations of the Hawaiian Islands with the United States and other countries shall remain unchanged.” Held, that until such legislation by Congress the government of Hawaii may lawfully collect the customs duties prescribed by its laws, notwithstanding the provisions of the Constitution of the United States that, “all duties, imposts and excises shall be uniform throughout the United States” and “nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another” and ©yen if the words “United States” and “State” in said provisions are to he construed as including, for the purposes of ordinary or permanent legislation, the territory belonging to the United States as well as the several States proper.</p>

<p>During the present .transition period, felons may be prosecuted without the intervention of a grand jury and convicted by nine out of. twelve petit jurors, as permitted by Hawaiian statutes, notwithstanding the fifth and sixth amendments to the Constitution of the United States and the clause in the Joint Resolution of annexation which provides for the continuation of Hawaiian municipal legislation not inconsistent with the Constitution of the United States.</p>

<p>Verdicts by nine out of twelve jurors as permitted by Hawaiian statutes may be received n civil cases notwithstanding the seventh amendment to the Constitution of the United States. The reasoning in RepwbUe v. Edwards, ante -p. 55, followed.</p>

<p>Appeals From Circuit Judge, First Circuit.</p>

<p>A structure, with the .machinery essential to its' working, used exclusively for taking coal from a ship and discharging it into the cars of the Oa'hu Railway & Land Co., to be delivered to purchasers along the road of 'the Company is property within the exemption from taxation being, in the words of the statute, property “fairly necessary for the reasonable maintenance and operation of the road of the Company.”</p> <p>Exemptions from taxations are strictly construed.</p>

<p>The plaintiff discontinued liis action. A commission to take 'testimony issued on motion of defendant, and the commissioner’s fee was ordered by the circuit judge to be made costs of court and the plaintiff’s attorney was held liable under Rule 24 (C) to pay this to the clerk as costs of court incurred by his client.</p>

<p>Every case in which an equitable estoppel is set up as a defense to a documentary title must be decided in the light of all the surrounding circumstances.</p> <p>Defendant’s grantor expended large sums of money in constructing a railroad oyer land of plaintiff’s grantor under a parole license from plaintiff’s grantor and in pursuance of a prior understanding entered into between said parties for their mutual advantage, and for many years afterwards the plaintiff and its grantor shared in the-benefits of said road without claiming any control over or ownership in the same. Held, that the plaintiff was estopped to bring an. action of ejectment.</p>

<p>The court sustains a ruling of the trial judge granting a new trial for misconduct on the part of an attorney by persisting in his argument, against the warning of the judge, in keeping the attention of the jury directed to the fact that at a former trial of the case the jury had found for his client and to the amount of damages so found, the trial judge being of the opinion that prejudice had resulted from the improper remarks notwithstanding his instruction to the jury to disregard them.</p>

<p>Appeals Prom District Magistrate of South Hilo, Island of Hawaii.</p>

<p>The statute authorizing a court of record or judge to order a commission to issue for the examination of witnesses, vests a discretion in the court or judge to direct the method of examination.</p> <p>The refusal to order a commission to issue, directing oral examination, not an abuse of discretion under the circumstances presented in tbis case.</p> <p>Mandamus the proper remedy in such cases only when an abuse of discretion is clearly shown.</p>

<p>A testator devised certain lands to his wife, sons, daughters and grandchildren, concluding the devise with the following language: “The above enumerated property is for them all and their heirs and representatives forever.” By a subsequent clause in the will, it is provided that, “if one of them should die, his or her share shall not go to his or her husband or wife, but if he or she shall leave children, then .his or her share shall go to such child or children, and any of them who shall have no children, his or her share shall go to those remaining without any division of his or her share.”</p> <p>Held; Under the first clause the devisees take a fee simple absolute, which was by the subsequent clause cut down to a fee simple, defeasible on the death of the respective devisees, without leaving a child or children, in which event the property vests in the survivor or survivors by way of executory devise.</p> <p>The expression “if one of them should die” has reference not to the death of the devisees in the lifetime of the testator, but to death at any time. The enjoyment of the estate by those ultimately entitled being postponed to a future day by a supervening estate, it is but just to make the chances of survivorship applicable to such future day.</p> <p>The preamble, or proem, of a will may he considered in construing the instrument, and, in doubtful cases, it may control.</p> <p>A deed from the owners of the contingent fee, together with a release from the executory devisees, will convey a good and sufficient title; and an agreement for the sale of land entered into between the owners of a contingent fee and the executory devisees with a second party will he specifically enforced against such second party. ¿</p>

<p>A subdivision of a Code is not a law, and its subtitle is not a title within the meaning of the constitutional provision which provides that, “Each law shall embrace but one subject, which shall be expressed in its title.”</p> <p>The subtitle of Chapter XXXVII, Penal Code, is “Vagrants — Disorderly Persons.” The title of Act 36, Laws of 1896, is “An Act to amend Chapter XXXVII of the Penal Code relating to vagrants and disorderly persons,” &c. This title is sufficient under the constitutional provision referred to.</p> <p>Sec. 370, Penal Laws, provides for the punishment of “any person * * who is found by night without lawful excuse (the proof of which excuse shall be upon such person) in or upon any dwelling house,” &c. The parenthetical clause is separable from the rest of the section and therefore if unconstitutional does not invalidate the rest of the section.</p> <p>Sec. 370, Penal Laws, provides that any person who does any one of a number of enumerated acts shall be punished,. &c. The petitioner was charged with the commission of two of such acts and found guilty as charged. The mittimus recited that he had been convicted of the offense of violating Section 370, &e. -Held, the mittimus was not void on its face and, the record, showing a proper judgment by a court having jurisdiction, the defendant was not entitled to a discharge on habeas corpus.</p>

<p>Charges against the respondent as a member of the bar held not sustained by the evidence.</p> <p>The acts proved to have been done by the respondent were done by him ■in his capacity as Attorney-General and were not of such a nature-as would justify proceedings against him as a member of the bar.</p> <p>The Attorney-General cannot be held to account by the court for his; official acts done within his legal powers.</p>

<p>The Department, not the Minister of Public Instruction, is the proper party plaintiff in an action of ejectment to recover school land.</p>

<p>Where a party before swearing out a warrant for a criminal offense presents all the essential facts and obtains thereupon advice of responsible counsel that he has reasonable grounds to believe that such offense has been committed, it is a defense to an action for malicious prosecution for such arrest.</p>

<p>By deed K doth “sell, convey and give” to J and D “all personal property belonging to her, tbat is, bonds, stocks, leases,” &c. * * * and at tbe same time delivers to them certain certificates of stock in tbe Waimanalo Sugar Company, a corporation of which G is treasurer, but K did not endorse tbe certificates.</p> <p>Tbe treasurer refused to record tbe transfer, cancel the certificates and issue new certificates to J and D.</p> <p>Tbe statute, Sec. 2016, Civil Laws, provides tbat tbe transfer of shares may be by endorsement and delivery. Tbat tbe endorsee shall be entitled to a new certificate upon surrendering the old one, and no transfer shall be valid, except between the parties thereto, until such new certificate shall have been obtained, or the transfer shall have been recorded on tbe books of tbe corporation, so as to show tbe date of tbe transfer, the parties thereto, their places of abode, and the number and description of the shares transferred.</p> <p>Held that as between 'K and J ana D the title to tbe stock was in J and D.</p> <p>Held that tbe transfer not being by endorsement, nor in compliance with tbe statute, tbe treasurer of tbe corporation rightly refused to record tbe transfer and tbat tbe remedy of J and D was to obtain an order of the court in equity which would be equivalent to tbe required endorsement.</p>

<p>Sections 90-93, Act 64, Laws of 1896, which impose a fee of five dollars for each 'theatrical performance, may be sustained, so far as the amount of the fee is concerned, as a valid exercise of the taxing power, whether as a valid exercise of the police power or not.</p> <p>The Minister of the Interior is not obliged to deliver the license until payment of the fee.</p> <p>The -Minister cannot arbitrarily refuse an application for a license on the ground that the applicant has not procured from the marshal an approval of the application.</p>

<p>A verdict in ejectment held contrary to t!he law and the evidence.</p> <p>Adverse possession does not begin to run in favor of one holding under a tenant, even under an attempted transfer in fee from the tenant, until at least notice of the adverse nature of the occupant’s claim is brought clearly to the attention of the landlord.</p> <p>.Judgment non obstante veredicto may be awarded under our practice on the evidence as well as on the pleadings, but not where the facts are contested.</p>

<p>Appeal from District Court, North Kona.</p>

<p>H signed two deeds, one purporting to release her dower right, the other all her right, title and interest, in certain lands which had previously been mortgaged by her husband (she not joining or releasing her dower) and sold on foreclosure. H afterwards was informed that Tier grantee claimed that there was a defect in the foreclosure sale and that she had inherited through her daughter all the estate of her husband, the daughter and husband having died, and that con-' sequently a fee simple title had been conveyed by her deeds. She then brought a bill for the cancelation of the deeds upon the ground of false and fraudulent representations that she had only a dower Tight. She did not show any defect in the foreclosure sale or show that she had more than a dower right or ihat she executed the deeds in reliance upon any false representation that she had only a dower right. She alleged also that she did not know that her deeds purported to convey more than a dower right, but she did not allege that her grantee had misled her as to what they purported to convey or show why she did not know what they purported to convey.</p> <p>Held, on demurrer, that the bill was insufficient.</p>

<p>Section 76 of the Land Act, 1895, which permits a holder of an Olaa ■ Crown Land lease covering less than 200 acres to obtain a patent for that and additional land, in all not exceeding 200 acres, upon the improvement of 30 acres thereof and other conditions, does not permit one who has obtained a patent for the entire area covered by his lease to obtain a patent for additional land after the termination of his lease and in consequence of improvements made thereon after the termination of his lease and his acquisition of the fee.</p>

<p>It is error to award costs against the appellee in actions at law where appellant plaintiff fails in the circuit court, on appeal, to recover at least one-fifth more than the amount recovered in the district court. Costs should have been awarded in the circuit court in such case to the appellee, and against the plaintiff appellant, under Civil Laws, Sec. 1495, Sub-sec. 3.</p>

<p>1. Sec. 370, Chap. 37, Penal Laws. Vagrancy. Objection to the charge on the ground that it alleged two distinct offenses is overruled.</p> <p>2. Under Sec. 370, Penal Laws, to constitute a lawful excuse for visiting the house of married persons in the night time at the request of the wife, there must be an invitation by her for a lawful purpose, and if accepted, the acceptance must be for a lawful purpose.</p> <p>3. A request to charge the jury, “if you believe that the defendant went to the house of A at the request or solicitation of Mrs. A his presence there was lawful and you must acquit,” was properly refused under the circumstances of the case.</p> <p>4. The instruction given held proper: “if the defendant went to the house of A in the night time for the purpose of having sexual intercourse with A’s wife, then he was there without lawful excuse and is guilty as charged, even though A’s wife invited him to come for that purpose. The invitation of a married woman to a man, not her husband, to come to her home and bed for the purpose of having sexual intercourse with her, is not a lawful excuse for doing so.”</p> <p>5. Sickness of a juror. A mere temporary attack of sickness, though it may for the time being incapacitate a juror, is not necessarily a reason for discharging him. When the circumstances permit, it is proper to wait a reasonable time for the juror’s recovery, and if he so far recovers as to permit the trial to proceed, and there is no reason to suppose that he was mentally incapacitated by his sickness, the verdict will not be disturbed.</p>

<p>The provision of the statute (Act 38, Laws of 1898) “that no license shall he issued for any lodging or tenement house, hotel, boarding house or restaurant to be established or maintained in any location which in the opinion of the Executive Council is unsuited for the purpose, or which the Executive Council believes to be objectionable,” is void, for the reason that it subjects the constitutional rights of person® to the arbitrary discretion of the Executive Council and contains nothing to guide or control the exercise of its discretion.</p>

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

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

<p>Non-suit. Reversed.</p> <p>The court ordered a non-suit, as a part of the chain of title claimed by plaintiff was a deed from K. (w) to K. (k), and there was evidence that they were husband and wife at the date of the deed, but-it further appearing that K (w) the alleged wife died in 1864, leaving no issue and that the husband survived and was her sole kindred, the court reverses the order of non-suit on the ground that under Sec. 1448, Civil Code of 1859, then in force, the husband inherited all his deceased wife’s estate as her heir, and if so the chain of title would be complete.</p> <p>Sec. 1448, Civil Code, 1859 * * * if the intestate be a woman and leave no kindred but her husband, then he shall inherit all her estate.”</p>

<p>Where two persons living together as husband and wife have conducted a common enterprise, no action lies by her against him, or his representative after his death, to recover the excess of what she put in over what he put in, not as a loan to him or at his request.</p> <p>Ordinarily one partner cannot sue at law another partner for a balance until there has been an accounting and a balance has been struck.</p> <p>The evidence in this case Is too uncertain and vague to justify a submission of the issues involved to the jury or, if submitted, a finding thereon for the plaintiff.</p>

<p>The'^plaintiff, a lessee, alleged that before he accepted his lease, his /lessor represented to him that the demised premises were bounded on one side by “Bridge Street,” and also that the boundary of said I premises on that side was described in the lease as running along J the side of “Bridge Street,” but that he afterwards found that the i land mentioned as “Bridge Street” belonged to private parties. He contended that a covenant or warranty that the land described as | “Bridge Street” was a public street was implied from the descripi tion in the lease. Held, on demurrer,</p> <p>That an action of tort for such false representations and an action for breach of such covenant, if any, could not be joined.</p> <p>That, while the lessor and those claiming under her might be estopped from claiming that there was no such street, if she owned the land described as a street at the date of the lease, yet no covenant that such a public street existed could be implied from the description of the demised premises in the lease.</p> <p>That the complaint in so far as it was based upon the false representations made before the acceptance of the lease was insufficient in that it failed to show that the lessor made the representations with knowledge of their falsity (or without knowledge as to whether they were true or false) and in contemplation of defendant’s relying upon them and that the defendant did rely upon them.</p>

<p>It is not essential that the testimony at the preliminary examination of a person accused of a crime should he taken by the hands of the committing magistrate himself. It suffices if it be done under his supervision and direction.</p> <p>Where the accused is committed for trial the indictment presented against him must be for the offense charged in the complaint upon which he was examined or one included therein, but the prosecuting officer is not limited by it in the mode of charging the offense. It is competent for him, so long as he does not undertake to proceed against the accused for a different transaction, to put his information or indictment in such form as will enable him to try the offense on its merits.</p> <p>An indictment for murder in the first degree contained several counts, one charging the killing “with deliberate premeditated malice aforethought” and another charging the killing with “extreme atrocity or cruelty,” held that the different counts merely charge the same offense in different ways.</p> <p>Where two persons, A and B, had been killed at the same time under the same circumstances, it was competent to admit evidence of the killing of B as a part of the res gestae, although the killing of A alone was charged in the indictment.</p> <p>The defendants were'1 Japanese. Witnesses for the prosecution gave their evidence in English, Portuguese, Chinese and Hawaiian languages which was interpreted into English by sworn interpreters, but was not again interpreted into Japanese; defendants were represented by competent counsel wbo understood tbe English language which is the language of the court; no objection was raised during the trial to this procedure and no request made by defendants or their counsel to have the evidence interpreted to the Japanese in their own language. Held, no ground for a new trial. If the accused has counsel who understands the testimony either directly or through an interpreter, the constitutional requirement, Art. 6 of the Constitution, which says that an accused person has the right to meet the witnesses produced against him face to face, is complied with. The King v. Ah Bar, 7 Haw. 319. The accused can waive the right to have the testimony, if in a language foreign to him, interpreted to him, when represented by counsel who understands the testimony either directly or through an interpreter, in capital eases as in those of a less degree.</p> <p>Murder. Accessories before the fact. Conspiracy. Reasonable doubt. Charge of the court to the jury given in full.</p> <p>Verdict held not contrary to the evidence.</p>

<p>An authority to sell is held to he an authority to make a binding contract to convey and not merely an authority to find a purchaser, under the circumstances of this case.</p> <p>An authority to sell authorizes a sale for cash only, unless it is usual or customary to sell on credit where the sale is to take place.</p> <p>The evidence in this case is held insufficient to justify a finding that it is usual or customary here to sell partly on credit in large land transactions.</p> <p>A note to run several months is held not the equivalent of cash, even though the banks would receive it endorsed without recourse.</p> <p>Where an agent makes a contract which is unauthorized in one particular, the mere fact that the principal, in repudiating it, gives as his reason that it is unauthorized in another particular, in which however, it is authorized, does not constitute a ratification, where the third party is in no way injured by the form of the principal’s objection, so as to raise an estoppel.</p> <p>Such subsequent act of the principal may be considered as evidence tending to show what authority he intended to grant originally, but in this case his subsequent objection to the purchaser alone and failure to object because credit was given is held insufficient to show that he intended originally to authorize a sale upon credit.</p> <p>Specific performance is denied on the ground that the agent exceeded his authority in contracting for a sale partly on credit.</p>

<p>An unattested written agreement purporting to be executed by two parties may be introduced in evidence by either party upon proof of claim by the other of a substantial and abiding interest thereunder, without further proof of execution.</p> <p>And since the question ^ such a case is only prima facie proof of execution, or waiver of prior proof of execution, it is immaterial whether the agreement purport to be executed by the parties in person or through attorneys in fact.</p>

<p>A verdict against four of five defendants for the whole sum claimed on a joint and several contract and against the remaining defendant for one-fifth of that sum, cannot stand.</p> <p>An allegation that defendants are partners need not be proved if it can be shown otherwise that they are jointly liable.</p> <p>The rale that parol evidence is inadmissble to vary the terms of a written instrument or that a contract cannot rest partly in writing and partly in parol,, does not apply to a case where several entered into an oral contract the terms of which were afterwards put in writing and signed by some only of the parties.</p>

<p>Acceptance of money for taxes on the land from the true owner of Bin undivided half toy the owners of the other undivided half who were in possession is held, wiith either slight evidence, sufficient to support (a finding by the jury thlait the possession Was not adverse, in (an action to quiet title.</p>

<p>An oral agreement of counsel, to extend the time of filing an appeal notice, and to waive the filing of such notice within the statutory-time, was afterwards reduced to writing and filed and passed upon and allowed by the court. Held, that the appeal was complete, and that the requirements of the statute under the circumstances of this case could be waived by counsel.</p>

<p>A decree 'of divorce « vinculo matrimonU cuts off all right to dower in the wife.</p>

<p>Specific performance may be decreed ¡of a contract ¡to sell and assign a ranch though it consists of only -leasehold interests -and -other personal property.</p> <p>Although specific performance may be decreed of a part only -of a contract which is by its terms divisible, ¡or, under some circumstances, ■ of so -much -of a contract as cam be performed with ¡am abaf'emiemt of the -price aj to- the part that cannot be performed, yet, under the circumstances of the -present case, where -specific performance cannot be decreed of ¡the portion of the contract which provides -for ¡the sale ¡of the cattle and horses on the ranch, it should not he decreed -of the portion ¡that provides for the sale of the leases, although these are provided for in a separate clause -and at a separate price.</p> <p>The cattle were tbo he paid for ¡at $10 a head, -the number tio be ascertained -by la drive by the vendor and a count by both parties. The cattle wer-e, many of them, wild and roamed over an 'extensive country covered largely by forests and lantana. It would require £noun -three ¡bo six -months to mahe a complete drive. It was provided that the drive should be made by the vendor partly because of his special knowledge of the cattle amd the country amd his interest 'in haying the drive as complete as possible. The rule that equity wBi not undertake to enforce specific performance of acts which require the exercise of peculiar skill or knowledge or which extend over a long period and require continuous supervision would have little or no ■jpplicaition in this case, if the vendor were living, because his own interests would compel Mm to -make as complete a drive as possible and it wouia be immaterial to- -the vendee whether the drive were complete or not, as he would get all the cattle there were -on the ranch but would have to pay for only those that were driven. No time having been agreed upon within WMch the drive -should be made, the count comía fix a reasonable time.</p> <p>Th-e rule that equity Will not compel a party to complete a contract, as by naming a price or appointing a valuer, where such a method is prescribed in the contract for ¡the determination of fihe price, perhaps would molt apply to- the case of a sale of cattle a't a certain price per head, the number to he determined by a d-rive by the vendor, — if the vendor were still alive.</p> <p>But in view of the nature of ithe drive and the provision of the contract that it was to be by ¡the vendor, without maiming his adminisitrato-r, if is held that in the present ca-se itlhe intention .was that the making of the drive should he the personal privilege or act of the vendor -and th'alt equity could mot properly compel his actanlilnistraibor to ¡complete the oomtraot by miakimg Ifhe drive himself.</p>

<p>By the will -of A. P. property was left to M. for life with remainder to J. A. and others "’he -administrator with will annexed transferred the property to am attorney of M. th-e life tenant, but th'i-s was dome out of court and without any ord-er -of the court and there was no settlement of his accounts in court. M. the life tenant died and the remaindermen claim the estate of the administrator. The question raised is one of ‘hot, “Did the administrator pay over the funds belonging to t. i ©state to the attorney of the life -tenant at the request of or with the subsequent knowledge -and approval of the remaindermen ?”</p> <p>Held, on the evidence, that no direct authority appeared for the transfer and also that the evidence did not prove a ratification by the remaindermen of the settlement between administrator and life tenant.</p>

<p>In summary proceedings by a landlord to recover possession of the ■demised premises upon a forfeiture of the lease,</p> <p>Quaere, whether the lessees’ mortgagees if not in possession may properly be joined as co-defendants with tbe lessees who are in possession.</p> <p>Quaere, whether a plea of tbe general issue is prima facie evidence that the defendant is in possession.</p> <p>If it .were necessary for the mortgagees to be in possession in order to join them as defendants, and if evidence outside of tbe plea of tbe general issue were necessary to show that they were in possession, then, since the plaintiff adduced no such evidence, tbe trial, Judge should have granted defendants’ motion made at tbe close of the plaintiff’s case for a nonsuit as to the mortgagees.</p> <p>But, since the mortgagees, upon the overruling of their motion, did not rest; hut themselves introduced evidence from -which the jury could infer that they were -in -possession, the error, if any, in overruling the motion for nonsuit -was cured.</p> <p>Rent 'is not apportionahle as to time, and where it was paid in advance for six months in pursuance of the terms of the lease and the -lessor entered to enforce a forfeiture before the expiration of that period, she was- not obliged to tender -back a part of the rent proportioned •to the unexpi-red -portion of the period. The retention of -the entire rent did -not operate as -a waiver of breaches subsequent to the acceptance of the rent and up to the time of the entry.</p> <p>In the case of continuing -covenants, such as to maintain fences and allow a -right of -way, an acceptance of rent, While i-t operates as a waiver of all kno-wn breaches up to that time, does not operate as a ■wa-iver of the continuation of such breaches -thereafter, even though no change -occurs thereafter..</p> <p>The mere fact that -the lessor delayed bringing proceedings to recover ¡possession for -a few weeks after she entered and -claimed a -forfeiture, even though the lessees ¡meanwhile with plaintiff’s knowledge repaired ¡the ¡breaches for which the forfeiture was claimed, does not operate -as a waiver or an estoppel as (matter of law.</p> <p>Where -there was a breach of a covenant to ¡maintain fences so as to prevent -the -passage of -stock and a provision -that ¡the lessee should ■be liable for ¡all damages resulting from the passage of stock, and a condition -for forfeiture in case of the breach of any covenant, &c., a forfeiture may be enforced; the .payment of damages is not an exclusive penalty ¡for ¡the breach of the covenant.</p> <p>In determining whether there ¡was a ¡breach of such covenant the question is .whether -the fences would, -not whether they did, ¡prevent the passage of stock.</p> <p>The lessees covenanted that the lessor should (have an unrestricted right of w-ay twelve feet ¡wide through the demised premises along the Hauula boundary, &c. Although -the lessees were not ¡bound under this covenant to maintain the way, yet it would be a breach of their covenant if they by tbeir positive acts should restrict it by digging into it on one side, even though the plaintiff could fill it up if she wished to.</p> <p>The ¡demised -premises were described in the lease by reference -to a map .which showed that a stone wall was the boundary of the premises on the Hauula side, and the covenant provided that the right of way should be through the demised premises along the Hauula boundary. The court rightly instructed the jury that the Hauula ■boundary must be taken for the purposes -of this case to lie along the line of the wall.</p> <p>Testimony as to what the parties understood to be the boundary, held to he either harmless error or admissible to explain, not to contradict, the terms of the lease.</p> <p>The motive of the plaintiff in enforcing a forfeiture is immaterial, if she otherwise makes out a case.</p>

<p>See. 1, Ch. 61, Laws of 1898, provides that “in any district, town or place in which there is a license in existence for the selling at retail of spirituous liquors and the business of vending spirituous liquors at retail is actually carried on no” light wine and beer “license shall be issued within two miles from the place where business is being carried on under such license.”</p> <p>Held, that a renewal of a light wine and beer license cannot be issued within the prescribed limits after the issuance of a spirituous liquor license therein, even though the latter was not issued until after the light wine and beer license was issued in the first instance.</p> <p>That the restriction is not unconstitutional as not being uniform legislation.</p>

<p>A testator bequeathed, as part of the residue of 'his estate, shares of stock in a corporation to trustees in trust to pay the income thereof to certain persons for life with remainder over. The corporation afterwards issued a stock dividend of -two shares of new stock for every three shares of old stock and appropriated as payment therefor at par an equal amount of its net earnings all of which had’ •accumulated since the death of the testator. The old stock before the issue of the new stock was at a premium of over $400 a share and after the new issue the stock was at a premium of over $200 a share.</p> <p>Held, that so much of the new stock held by the trustees as represented earnings, that is, up to the par value of the new stock, should go to the life tenants and .that the balance representing the .right to take the new stock at par or the depreciation in the value of the old stock should be held as part of the corpus of the trust.</p>

<p>In a prosecution for polygamy, the first marriage, if any, being on© by proxy in China where the defendant was, the other party being in these islands, held, assuming that marriage by proxy is lawful in China, and that the defendant so far as she was concerned complied with the Chinese law and that such a marriage in China would be held valid here, still there was no proof that ■the proxy was given or that the alleged husband consented.</p>

<p>Handing in a resignation absolute in form to tbe proper officer does not necessarily ipso facto vacate tbe office. Whether tbe office is vacant or not depends upon tbe intention and understanding of tbe parties considered with reference to tbe public interests.</p>

<p>The words “time of entry” as used m Session Laws 1874, Chap. 48, Civ. Laws, Sec. 1787, relating to foreclosure of mortgaged property by entry and possession, mean the “date or day” of entry and not the “hour -and minute” of the day.</p> <p>The certificate of entry is evidence of all facts therein stated necessary to the foreclosure. “All the facts necessary to the foreclosure must appear in the certificate which is the only proper evidence of them. The certificate however is not conclusive evidence that there has, been a breach of the condition of the mortgage.”</p> <p>The statement of facts, on which the submission without action is based;, not showing with certainty that a material fact is agreed upon, itreauiring evidence to establish the same, is dismissed without: prejudice.</p>

<p>The principal and surety on a guardian’s bond were sued jointly, but no service of summons was made on tbe principal, nor did be appear to defend. Hold, not necessary to serve all joint obligors under Sec. 1222, Civ. L.</p> <p>It is not necessary for plaintiff to first exhaust all bis rights against ■tbe principal before proceeding against tbe surety.</p> <p>Tbe complaint sets forth a cause of action, and tbe evidence supports tbe judgment.</p>

<p>Attorney’s fees under Civ. Laws, Sec. 1491, are not allowed upon the quashing of the summons or service.</p>

<p>Nonsuit. On motion of defendant 'after plaintiff rested, an order of dismissal was made by tbe district magistrate on tbe ground tbat tbe plaintiff in .an assumpsit action bad failed to prove tbat it was “a corporation duly organized and existing under tbe laws of Hawaii,” it having so alleged in its complaint. Before a decision was made, the plaintiff asked leave to reopen the case and introduce •testimony of .its corporate character. Held, under the circumstances of the case and the evidence already produced, that at the most only slight further formal proof was necessary, and the case ought to have been reopened; that the granting of the nonsuit cannot be sustained, and it is reversed and the case remanded.</p>

<p>Under our mechanic’s lien law, the owner of the property upon which a lien is claimed is a necessary party .defendant in an action by a subcontractor to enforce the lien, and a .special execution may issue upon .a judgment for the enforcement of the lien against 'the property covered by it, .even though judgment cannot be entered against the owner personally.</p>

<p>Under the material-man’s lien law, where there is a presumption that materials furnished to be used in a building were used in the building, proof that a portion of the materials were not so used does not as matter of law destroy the presumption as to. the remainder of the materials.</p>

<p>Under our statute a mechanic’s or material-man’s lien is in force only from the date of filing -and continues in force for three months and no longer after the completion of the building, &c., unless it shall have been satisfied or unless proceedings shall have been commenced to enforce it. The principal contractor abandoned his contract before the completion of the building and the owner completed the building by 'day labor. Held, that a material-man who furnished materials at the request of .the contractor before the latter abandoned his contract need not file his lien and bring suit within three months after the abandonment but may do so within three months after the completion of the building.</p> <p>A subcontractor’s lien is not limited to the amount due the principal contractor.</p>

<p>In equity, where a bill is brought by a part of the members of a hui to set aside a lease made by the hui, it is necessary to make all parties in interest parties to the suit so far as practicable, or allege or show some proper ground for non-joinder, either as parties plaintiff or defendant. The plaintiffs sued for themselves, not for the hui, or for those of the same interest with themselves; neither the hui, (the lessor,) nor any officers or members of the hui other than named plaintiffs are made parties plaintiff or defendant to the suit, nor any excuse alleged or shown why they are not made parties. The case is remanded to Circuit Court with leave to plaintiffs to amend.</p>

<p>Sections 304-306, Pen. L., are not unconstitutional because they divide the offense of making and publishing a libel into two degrees without distinguishing between them except by the amount of the penalty and leave it to the court or jury authorized to decide on the facts to determine the degree.</p>

<p>To create 'a resulting trust where the purchase money is paid by one and the title is taken by another, the entire purchase money must have been paid by such party, or if a part only be paid such payment be paid for some aliquot part of the property, ¡as a fourth, a third or a moiety, and there must be no uncertainty as to the proportion of the property to which the trust extends. And again such trust must arise at the time of the purchase; it cannot arise by after advances:</p> <p>A wife is not entitled to dower in lands of her husband, of which he was not beneficially seised. Where a husband is seised of an estate to hold in trust for another, it is a familiar rule that the wife shall not be endowed of such estate although he is manifestly seised of the fee.</p>

<p>T. O. B. Rooke devised-and -bequeathed as follows: “I give and bequeath all my real and personal estate, of what nature or -kind soever, to my wife Grace Kamaikui Rooke (to be used and enjoyed by her during the term, of h-er natural life, and from and immediately after her decease, I give and devise the same to my adopted -daughter Emma Rooke, * * * to- be used and enjoyed by her during the term ■of her natural life, and -her children for ever, but should the aforesaid Emma Rooke decease before me, the said testator, or decease without leaving any issue, then I hereby give and bequeath the- same unto my Nephew and Godson, Creswell Charles Kean-e Rooke, * * * and his heirs for ever.”</p> <p>The will was dated Feb. 28, 1852. Emma married King Kame'hameha IY, June 2, 1856, and gave birth to the Prince of Hawaii May 20, 1858. The testator made a codicil, changing one of the executors, May 29, 1858, and died November 28, 1858. Grace died soon after. The Prince died in-1862, the King in 1863 and Emma in 1885. Held,</p> <p>(1) At common law, including the early statute de donis, Emma would take an estate tail, in which case C. O. K. Rooke would take a vested remainder; but</p> <p>(2) Estates tail cannot exist in these islands.</p> <p>(3) At common law, before the statute de donis, Emma would take a fee simple conditional, in which case C. C. K. Rooke would take byway of remainder if a remainder cou'ld be limited on a fee simple conditional, and, if not, he would take by way of executory devise, ■if the words “without leaving issue” import a -definite failure of issue and perhaps even if they import an indefinite failure of issue, and, if •not, the -heirs general of the testator would take the possibility of reverter; hut</p> <p>(4) Fees simple conditional cannot exist in these islands.</p> <p>(5) Under Hawaiian law, Emma would take either (a) a fee simple or (b) a life-estate with (1) a vested ‘remainder in the Prince or (2) alternate contingent remainders in the Prince and C. C. K. Rooke.</p> <p>(6) In either case the words “without leaving any issue” must be read in their natural sense meaning “without leaving any issue surviving” and not in either of their artificial senses meaning “without having ■had issue” or importing -an indefinite failure of issue.</p> <p>(7) In either case the word “or” must he read in its natural sense and not as “and.”</p> <p>(8) In either case, therefore, upon the death of Emma without leaving issue surviving her, C. C. K. Rooke became entitled in fee simple in possession, by way of executory devise or remainder as the case might he.</p>

<p>A title to an easemerut — a water right — is a title to real estate within the meaning iof the ‘Statute (Givil Laws, Section 1119) which provides that districts courts “shall not have cognizance of real actions, nor actions in which the title to real estate shall come in question.”</p> <p>A plea of title in defendant accompanied by a sufficient affidavit, as required by Rule iof Supreme Court of March 1st, 1895, ousts the jurisdiction of the district court in actions involving title to real estate, without the production of evidence.</p>

<p>A grant of the right to “take and use,” for certain demised premises and for certain purposes, all the Avater in certain rivers outside of the demised premises, and to enter upon such outside premises and construct “such dams or other Avorks” as may be necessary in order to “obtain and use such Avater” for said purposes is held, under all the circumstances of the case and the other language in the lease, more fully set forth in the opinion, to carry the right to divert the Avater for use on the demised premises, but not the right to erect vrorks on such outside premises for the purpose of generating electricity by means of the water power, even though, for the purpose of conducting the electricity, so generated to the demised premises for use thereon.</p>