Volume 13 — Hawaii Reports

<p>Ejectment does not lie against the government under the Act of March 16, 1895, relating to suits against the government.</p>

<p>’The time agreed upon for the payment of the 'balance of the purchase price of certain land is 'held under the circumstances not to he of the essence of the contract.</p>

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

<p>(1) “Without ’awful excuse,” in section 370, Penal Laws, 1897, means without lawful authority or a reasonable belief in lawful authority.</p> <p>(2) One who goes upon the premises of another, by night, for a lawful purpose, and on the invitation of one rightfully occupying the premises, without the knowledge or consent of the owner, remains over night, is not there “without lawful excuse.”</p>

<p>Section 60 of tiie Organic Act, which prescribes the qualifications for voters in this Territory, applies to the first election as well as to subsequent elections, to the exclusion of Section 1859 of the Revised Statutes of the United States, which prescribes the qualifications of voters at first elections in the Territories in general.</p> <p>The requirement in said Section 60 that the voter shall have resided in the Territory not less than one year preceding the time at which he offers to register, should be construed as requiring such term of residence in the Hawaiian Islands, and not necessarily after the establishment of a territorial government over said islands.</p>

<p>One who has no place of abode except on a steamer engaged in the inter-island trade is not a resident of a particular precinct within the meaning of the election laws, although the steamer when at Honolulu docks at a wharf in such precinct and Honolulu is her home port.</p>

<p>An exhibit filed at the trial in the lower court, held, not to have been sufficiently referred to in the bill of exceptions so as to make it a part of said bill.</p> <p>L. and M. executed a deed of certain property therein described to S. L., F., K. and N., the operative words used being, “We make, give, sell and convey absolutely and release absolutely, and by this instrument we make, give, sell -and convey absolutely and entirely release unto our beloved sons L., F., their heirs, executors, administrators and assigns forever, and to K. and N. our beloved daughters, their heirs, executors, administrators and assigns forever.” A later clause in the deed reads as follows: “Nevertheless, all the property conveyed by this instrument remains in our hands, and in our possession, and care, and we are to collect all the receipts, and the things growing on the pieces of land described above, and take them for our benefit, and at the decease of one of us, the (rights) power of this instrument goes to the other of us, until the death of both of us; then the pieces of land, revenues, benefits, rents and all other profits, will go to our beloved children, Lo, Felix, Keanuenue and Nune, as set forth above in this instrument.”</p> <p>Held, that a present interest passed to the grantees named, subject only to a life estate reserved by the grantors to themselves.</p>

<p>The Congress of the United States by a Joint Resolution, “To Provide for annexing the Hawaiian Islands to the United States,” approved July 7th, A. D. 1898, provided, inter alia, that “the municipal legislation of the Hawaiian Islands * * * * not inconsistent with this joint resolution nor contrary to the Constitution of the United States * * * * shall remain in force until the Congress of the United States shall otherwise determine.” On August 12th, A. D. 1898, there were certain ceremonial functions held in Honolulu at which the Hawaiian Government was formerly notified by the United States Minister Plenipotentiary and Envoy Extraordinary of the adoption and approval of the joint resolution aforesaid and at which the Hawaiian Government made an unequivocal transfer and cession of its sovereignty and property. Held—</p> <p>(1) That by virtue of the language of the Joint Resolution above quoted all municipal legislation of the Hawaiian Islands contrary to the Constitution of the United States was ex vi vertae and not by amplication merely, annulled and ceased to be of force or effect after the 12th day of August, A. D. Í898. The question as to whether the joint resolution took effect so as to operate as a repeal of Hawaiian municipal legislation, contrary to tlie Constitution of the United States, at the date of its approval or on the 12th day of August, A. D. 1898, is one not necessary to the decision of this case.</p> <p>(2) No person could be put upon trial for an infamous crime in the Hawaiian Islands after August 12th, 1898, without having been first indicted by a grand jury; nor could one be convicted of such crime save by the unanimous verdict of twelve jurors.</p> <p>(3) Section 616 of the Penal Laws of 1897 providing for the finding of an “indictment” by a Circuit Judge, and that part of Section 1315 of the 'Civil Laws of 1897 authorizing nine jurors to return a verdict in criminal cases is municipal legislation contrary to the Constitution of the United States and is null and void.</p> <p>(1) Sodomy is “an infamous crime” within the meaning of the Fifth Amendment to the Constitution of the United States.</p> <p>(5) The petitioner in this case having been put to his trial on the 16th day of August, A. D. 1898, upon an “indictment” — so-called, found by a circuit judge, charging him with the crime of sodomy and thereof convicted by a verdict less than unanimous, is entitled to be discharged.</p>

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

<p>Section 1768, Civ. L., does not authorize a claimant of goods seized by the Sheriff on execution to apply for an order of interpleader. The Sheriff is the proper applicant.</p> <p>Such unsuccessful claimant may be required to pay the Sheriff’s possession money caused by a stay of proceedings in consequence of such claim.</p>

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

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

<p>1 A prisoner who has been properly and legally sentenced cannot be released on habeas corpus simply because there is am' imperfection or ambiguity in the mittimus; when placed in the proper custody he is thereafter restrained by virtue of the judgment and mot by the mittimus.</p> <p>2 The statutes of the Territory make ample provision for bringing the record of the Circuit Court before the Supreme Court for review. The writ of habeas corpus oanmot be made to serve such purpose.</p> <p>3 A prisoner sentenced by a court having jurisdiction of the crime charged and of the person of the prisoner is not entitled to his discharge on habeas corpus unless it affirmatively appears that the judgment under which he is confined is void.</p>

<p>Original Action to Quiet Title.</p>

<p>The general rule is that when a steamship and a sailing vessel approach each other at seia, it is the duty of the steamship to keep out of the wiay of the other vessel, and in such case it is the duty of the sailing vessel to keep her course. Possible exceptions may arise, but the case at bar is not one of them.</p> <p>In such ia case, it is the duty of the steamship, from the moment the sailing vessel is seen, to watch with the highest diligence her course and movements so as to be able to adopt such timely • measures1 of precaution as will necessarily prevent the two boats coming in contact.</p> <p>In a case of collision, the fact that the lights of the sailing vessel were not placed as required by law, will not defeat recovery by her owners for her loss, if such. misplacing of the lights did not in any way contribute to the collision and the same was caused by the negligence and incompetence of the officer in charge • of the steamship. . .</p> <p>Upon the evidence in this case, the steamship held to be in fault.</p>

<p>Appeal prom Circuit Judge, Third Circuit, in Chambers.</p>

<p>Where the valuation placed on property for taxation by the Tax Appeal Court is fair and just an appeal by the tax assessor cannot be sustained.</p>

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

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

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

<p>Insured property was destroyed by fire which spread from other build* ings which had been set on fire by order of the Board of Health because of infection by bubonic plague. The policy provided that the insurer should “not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority; or iby theft;” &c. Held,</p> <p>The words “directly and Indirectly” apply in the case of loss caused “by order of any civil authority” as well as in the case of loss caused “by invasion,” &c.</p> <p>Loss caused directly or indirectly by order of a civil authority includes loss of property destroyed by fire which hais spread, unaided by any independent efficient intervening cause, from the buildings which were ordered burned. It is not confined to the loss of the particular buildings intended to be burned.</p> <p>To exempt the insurer, it is not necessary that the order of the civil authority be lawful and justifiable in the particular case. It is sufficient if the civil authority may lawfully order buildings burned when necessary for purposes within the scope of its duties and in the particular case acts officially and in good faith and within the apparent scope of its powers.</p> <p>YTrere buildings are set on fire by order of a civil authority on account of infection by plague, and loss caused by order of any civil authority is excepted but loss caused by plague is neither insured against nor excepted, the order and not the plague should be regarded as the cause of the loss within 'the meaning of the policy.</p>

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

<p>The decision of the trial court held supported by the evidence.</p>

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

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

<p>A devise to husband and wife,' before the Married Women’s Act of 1888, created an estate in entirety.</p> <p>A devise of “all my properties, real and personal, and of whatever kind,” though without words of inheritance, carries the fee.</p> <p>Three clauses of a will were in substance: 2. All my properties are .hereby devised to my wife and two grandchildren. 3. If my wife dies then it shall pass to my grandchildren and to their heirs forever. 4. If one of my grandchildren shall die first, or they both perhaps, then it shall pass to their children and so on. The wife 'died before the testator. Held, the grandchildren took the whole property in fee simple under clauses 2 and 3. Clause 4 never became operative, and also did not show that the grandchildren were to have only a life estate with remainder to their children.</p>

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

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

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

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

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

<p>1. The latitude allowed to counsel in the cross-examination of witnesses is largely in the discretion of the trial court, and is not a proper cause for reversal, unless such discretion has been oppressively abused.</p> <p>2. Where proofs of loss are prepared in the office and ander the advice, aid and instruction of the company’s authorized agent, the company thereby waives the right to object to defects in the proofs.</p> <p>3. Evidence of previous fires in which the plaintiff had suffered loss, and collected insurance, not admissible, unless the previous fires were a part of a system of frauds of which the fire in question was an essential step.</p> <p>4. An instruction asked by the defendant and modified hy the court and given in the following language, “If you find that the insured did not truly state his interest in the property covered by either of the policies, as hy stating that he owned property which in fact belonged to his wife, and did so deliberately knowing the statement to he false, then such policy is void and the plaintiff cannot recover” — :held to be a correct statement of the law.</p> <p>5. The trial of the cause commenced on Tuesday and closed Saturday evening; on Friday morning defendant’s agent and attorney learned of certain rumored misconduct of one of the jurors indicating, on the part of the juror, strong bias and prejudice against insurance companies. No notice of this fact was brought to the attention of the court, and the trial continued to verdict without objection. Held, that the defendant did not use proper diligence to entitle it to make the alleged misconduct of the juror the basis of a motion for a new trial; that by silence and inaction it waived such right, if any existed.</p>

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

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

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

<p>The Superintendent of Public Works must grant a building permit under Sections 1078-1085 of the Penal Laws when the applicant has complied with the provisions of the statute, notwithstanding ...the executive officers of the Board of Health refuse to approve the premises in question and the Board decides that the premises are deleterious to the public health and passes a resolution forbidding the granting of a permit to build on the premises.</p>

<p>•Upon the evidence the court affirms a charge against the executor oí a will of a sum of money reported by him in his inventory as being in his possession and not accounted for in his statement of receipts and expenditures.</p> <p>Under the circumstances stated in the opinion, a charge against the executor of interest for one year at the current rate on the sum of $4550., and an order that he pay a master’s fee of $100. out of .his commissions, sustained.</p>

<p>The probate court did not have jurisdiction in 1871 to 'declare the heirs of a decedent in a proceeding Instituted for that purpose- as distinguished from a proceeding for the distribution of property, nor did it have jurisdiction to decree a distribution of real property.</p> <p>An adjudication of a question of heirship or relationship in >a proceeding in probate for a distribution of personal property is not binding in a subsequent action of ejectment with respect to real property as to one who did not appear as a party or claimant, though she appeared as a witness, in the probate proceedings.</p>

<p>Appeal from Tax Appeal Court, Island of Oahu.</p>

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

<p>In 1881, one of the Associate Justices of the Supreme Court, after due hearing, made an order authorizing the guardian, of the property of a minor ito mortgage the property of hi® ward to secure payment of a sum of money to be borrowed for the purchase of a piece of land, known as Lot 5, adjoining land owned by the minor and known as Lots 2, 3 and 4, and for repairs on the buildings on •the land last mentioned. The mortgage executed in pursuance of that authority passed by assignment to A. who subsequently foreclosed for breach of the condition, and the mortgaged premises were sold under a power of sale contained in the mortgage. The minor, on coming of age, brought an action of ejectment for said premises against one claiming under the purchaser at said sale.</p> <p>Held: The order of the court authorized the mortgaging of Lot 5 as well as of Lots 2, 3 and 4.</p> <p>The order authorized the execution by the guardian of a mortgage containing a power of sale.</p> <p>Guardians of the property of minors did not in 1881, and do not now, possess the power formerly possessed by such guardians under Hawaiian common law to mortgage the real estate of their wards without authority from any court.</p> <p>The Justices of the Supreme Court had in 1881, and the Circuit Judges have now, sitting, in Chambers, as Courts of Probate, the power to authorize the mortgaging of a minor’s real estate whenever in their discretion it shall appear to be to the best interests of the minor to follow that course. This power should be exercised only with great caution.</p>

<p>Where a policy of fire insurance is written on oral application of the insured and. no unusual circumstances exist affecting the subject ■of the insurance the insured is under no obligation to volunteer information about his past life or losses by fire.</p> <p>And where such policy contains clause “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof,” and the insurer made no specific incpiiry as to previous fires, it was not error to disallow proof that the insured had suffered four different losses by fire before coming to the island®'.</p>

<p>Original Submission.</p>

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

<p>A valuation of $2,800,000. placed on the Lihue Plantation Co.’s sugar plantation by the Tax Appeal Court is sustained and the appeals of both the company and the assessor are dismissed.</p>

<p>Section's 764-768, Penal Laws, which impose a license tax upon the sale of imported goods, are unconstitutional.</p>

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

<p>A bill in equity was brought to set aside a deed on the ground that it was obtained by misrepresentation and fraud. Gross inadequacy-of consideration, tie existence, between the grantee and the grantor, of the relation of brother and sister, the reposing of great trust and confidence by the sister in the brother, and the making ¡of false representations by him to her concerning the value of the land conveyed, were averred and relied upon as tending to show fraud. Held, that the essential averments of the bill were not sustained by the evidence adduced. Bill dismissed.</p>

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

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

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

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

<p>a stranger to a promissory not wbo writes his name across the back thereof, before delivery, is prima facie, an endorser and entitled to notice of the default of th maker.</p>

<p>The statute prescribing the compensation of executors, administrators and guardians is followed in fixing the compensation of trustees in regard to which there is no statute.</p> <p>Trustees purchased stock for $21,000 and sold it for $50,000. A commission of 2%% is allowed on the increase of $29,000. as “moneys realized from securities, investments, and from sales of personal property.”</p>

<p>A clause in a will read: “My bought land” (aina kuai) “that is the pa at Pawaa adjoining the pa belonging to Kauka on the Waikiki side of the government road running to Waikiki Kai that pa is for A. F. Judd that is his land which I devise to him.” The testator at the time of his death owned 6.46 acres of land adjoining a lot belonging to the Kauka referred to in the will and 1.05 acre additional adjoining the piece first above mentioned. These two pieces, 7.51 acres in all, were together enclosed by a substantial stone wall and used by the testator as one lot, and are situate at Pawaa on the Waikiki side of the government road to Waikiki Kai. The 6.46 acre piece was acquired by him from the government by purchase; the other by award of the Land Commission.</p> <p>Held, under the circumstances of the case, that the word “pa” was intended to include the entire enclosed lot of land and that, if the word “kuai” was used by the testator in its ordinary acceptation as distinguishing land -acquired by purchase from that acquired by an award of the Hand Commission and not in its technical sense, the latter word must be rejected as false description, and that the whole land within the substantial enclosure passed under the terms of the will.</p> <p>Whether or not a witness has qualified as an expert translator, is a matter largely within the discretion of the trial court. Under the circumstances stated in the opinion, there was no abuse of discretion in refusing to permit a witness to testify as such an expert.</p> <p>The refusal to admit in evidence a certain map was, if erroneous, not prejudicial error, because other evidence in the case proved the facts sought to 'be shown by the introduction of such map and such facts were found by the trial court.</p> <p>Under the circumstances stated in the opinion, it wias not error to exclude the testimony of a witness as to what land was devised by a certain clause of a will, even though such witness was an expert surveyor and translator, the question calling for a construction of the clause, which was a matter for the court.</p> <p>A witness was permitted to testify as to the meaning of the word “pa”. The witness 'had qualified as an expert in Hawaiian. Held, no error.</p> <p>After oral decision by the trial court, plaintiff moved for leave 'to re-open the case to introduce furtner evidence on certain points stated. The court granted the motion on condition that plaintiff pay $300. attorney's fees of counsel for defendant. Plaintiff declined to take advantage of the ruling* on account of the condition imposed and excepted. Assuming that said ruling was in effect a denial of the motion and that it wias erroneous, the error, under the circumstances stated in the opinion, held to be not prejudicial.</p>

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

<p>Mandamus .as a rule does not lie to compel a reversal of an order of an inferior court where such order is within the discretion of the court (as where a juror has been excused from further duty) or where there is another adequate remedy (as where the court has ordered .a forfeiture of the juror’s fees and the clerh has after-wards with the approval of the court drawn them from the treasury for the use of the petitioner) or where demand has not previously been mad'e upon ithe court or judge.</p>

<p>Where a District Magistrate has imposed a sentence of both fine and imprisonment at hard labor for an offense for which the statute prescribes a fine only, and defendant appeals to the Supreme Court solely on the point of law that the sentence is excessive and illegal, the Supre; e Court may, as the circumstances of the case and justice may require, either correct the sentence by striking out the reference to imprisonment or remand the case to the District Magistrate with directions to make such correction or to impose a sentence within the limits allowed by law. The King v. Tai Wa, 5 Haw. 598, overruled.</p>

<p>G., H., the defendants and certain other persons entered into a written agreement to form a copartnership to engage in a certain business in Tasmania. In said instrument it was agreed, inter alia, “that if at or before the expiration of a period of six months” from a certain date, “the said G. or the said H. is not satisfied with the condition of the said partnership business in Tasmania,” certain of the partners “will give the said G. or the said H. stock of the market value equal to the amount paid by him of the 2250 £ men- • tioued in clause 2 hereof in some other district of the company’s field of operation in exchange for the portion of the said 2250 £' taken by him.” The clause 2 referred to shows that G. and H. “together paid 2250 £ for a nine-twentieth interest in the partnership, and another clause that of this sum G. paid 250 £ for a one-twentieth interest and H. 2000 £ for a two-fifths interest. H. brought an action to recover damages for breach of the said agreement to deliver stock. Held, on demurrer:</p> <p>Either G. or H. or both may, upon the happening of the contingency stated, recover -damages, G. for the failure to deliver to him the stock named of the market value of 250 £ and H. for ithe failure to deliver to him such stock of the market value of 2000 £, that the said agreement gives neither to G. nor to H. the right to recover stock of the market value of 2250 £ or damages for failure to deliver said last named amount of stock and that it is unnecessary for H. to allege in this ease that G. has not sued for or recovered any of said stock or damages for failure to deliver the same.</p> <p>In the said agreement the said promisors and not the promisees took the risk as to whether or not at the time of the (happening of the contingency stated the stock mentioned would he in existence, and It is therefore unnecessary for the plaintiff to ailege that such stock is or was in existence.</p> <p>The statement in the declaration that plaintiff “made demand upon said partners that under the terms of paragraph 4 of said agreement they should deliver to him stock,” etc., is a sufficient allegation of a demand for such stock in accordance with the terms of said paragraph 4, to wit, in exchange for plaintiff’s interest in ■“the partnership hereby formed,” and of an offer to give such ■ interest in exchange.</p> <p>The said promise to deliver stock to the plaintiff was based upon a valuable consideration, to wit, the payment by the plaintiff of the sum of 2000 £ and his agreement to proceed to Tasmania to conduct the business of the partnership.</p> <p>-Assuming that the language of the agreement is ambiguous as to what stock is meant and that this fact might prevent the maintenance of a hill for specific performance of the contract to deliver such stock, -an action at law for recovery of damages may nevertheless be maintained because it appears from the face of the declaration that the defendants have failed and refused to deliver •any stock and have thereby committed a breach of the agreement, giving the plaintiff the right to recover at least nominal damages.</p> <p>While the present action is one between persons who are partners in a certain business, the plaintiff is not suing any partnership of which he is a member; the agreement sued on is an express personal contract between individuals who are partners, but not in their capacity of partners, is wholly distinct from partnership ¡affairs and does not involve the consideration or require the examination of the partnership accounts; and. under the circumstances an action at law may be maintained.</p> <p>«■On the subject of jurisdiction, it is sufficient to allege in a declaration on a foreign judgment “that at the time of said action and the rendition of the judgment hereinafter mentioned, the said court was a court of record in said city, having jurisdiction over the parties plaintiff and defendant, and also of the subject matter in and of itihe said action;” ,and this even though it appears by inference or otherwise from the face of the declaration that ait the time of the institution of the action in the foreign court or of the rendition of judgment therein, the defendants were nonresidents. It is not necessary to allege more specifically that direct personal service was made or that the defendants voluntarily submitted to the jurisdiction of such foreign court.</p> <p>Where a foreign court upon a joint cause of action renders judgment against isome and not all of the joint defendants, such error in the proceeding, assuming but not deciding that the judgment was erroneous, is at most a mere irregularity and not matter affecting the jurisdiction of the foreign court and therefore not open to review in an action on such foreign judgment.</p> <p>An action on a judgment is, within the meaning of Section 1259 of the Civil Laws of 1897, an action arising out of an implied contract, and a count on such a judgment may, under said statute, properly be joined with a count on an express and entirely distinct contract between the same parties.</p> <p>A plaintiff may properly join in the same action a count on a foreign judgment and a count on the original 'cause of action ('between the same parties) on which the foreign judgment was based and rendered.</p> <p>The agreement to deliver stock first hereinabove recited is, in view of the language of the instrument which is quoted in full in the-opinion, held to be a joint and several contract. Under Section 1222 of the Civil Laws of 1897, it is necessary to join as defendants: in the action all of the parties to the said joint and several contract.</p> <p>In an action on a judgment, it is necessary tn join as parties defendant all the living judgment debtors, except those who are out of the-jurisdiction.</p>

<p>By Act XVIII, Session Laws 1884, William R. Austin and associates were granted a franchise to build and operate for a period of thirty years “a single track street railway with all necessary curves, switches and turnouts or a double track street railway” along and over certain enumerated streets in the city of Honolulu. A time limit was fixed by the legislature for the commencement of the railway at one year and for its completion at three years. The time for completing the road was by subsequent Act extended to September 15, 1889. The Act extending the time limit provided “that said railway must be completed and equipped and ready for transportation of passengers,” etc., within the time fixed and if not so completed “all rights hereby granted shall terminate and the franchise hereby granted become void and of no effect. Provided that for such portions of said road as shall at that time be completed and equipped as above required, the right herein granted shall stand and be of full force and effect.”</p> <p>Held: That the assignee of Austin having elected to construct, equip and complete a single track street railway within the time limit fixed by law has no right under the terms of the franchise to now construct a double track railway.</p> <p>The granting clause of the franchise to Austin and associates being silent as to the motive power to be used in propelling the cars along said railway; held that it was intended 'by the legislature that only such motive power should be used as was iat that time in general and common use by street railway companies, and that the right to use electric traction was not intended to be given, at least, if its use would add an additional servitude to the street.</p> <p>Section 3 of the Act of 1884 of the grant to Austin and associates reserved the right to give to one other corporation the right to use the tracks of said railway for a distance of 1700 feet on compliance with the conditions named therein, and did not grant to Austin and assigns an exclusive franchise for the use of the streets enumerated beyond the distance of 1700 feet.</p> <p>Assuming, but not deciding, that under Act 69, Session Laws 1898, the Honolulu Rapid Transit and Land Company has a valid franchise and that it can acquire the right to lay its track along King Street between Nuuanu stream and Thomas Square in the manner stipulated in the agreed facts: Held that under the agreed facts said company has the right to construct and operate its railway over said street.</p>

<p>In a suit in equity brought to restrain respondents from interfering with water rights alleged to be appurtenant to certain land of the 'complainants, held, that the burden is upon tlhe complainants to •establish by a preponderance of the evidence the rights claimed by them and that in this case such burden has not been successfully ■borne and that the evidence is too conflicting, uncertain and unsatisfactory to permit or justify a finding on the point in favor of the complainants.</p> <p>From time immemorial a dam, known as the Paaluhi dam, has been maintained at a certain point across the Manoa stream, with a certain opening in said dam, however, as more particularly described in the opinion, the object of such opening being to permit all of the water in the stream, except so much as is diverted under the circumstances by the ditch leading off from said dam, to flow ■on to irrigate other lands. Held, that the lands watered by the ■ditch just mentioned have no right, in times of drought, to close ■said opening or otherwise to divert through such ditch all of the water in the stream at that point, and that in such times the conditions at the dam and ditch must be permitted to remain the same as in times of plenty and that all must suffer accordingly.</p> <p>Counsel fees paid to obtain the dissolution of a temporary injunction in an equity suit are recoverable as a part of the damages provided against in the condition of a bond filed to secure the granting of such injunction.</p> <p>A court of equity in the original suit may, in its discretion, as against the complainants and principals in such bond, either assess and -award the amount of such damages, or leave the parties to an action at law to recover the same.</p>

<p>Appeal prom District Court, North Kona, Hawaii.</p>

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

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

<p>Deed held to have been procured through undue Influence — as shown by the existence of the confidential relationships of attorney and client and principal and agent between the parties, the mental weaknesses of the plaintiff and the inadequacy of the consideration.</p> <p>Acts held not to show acquiescense or ratification when done while tlhe influence of the defendants over the plaintiff continued though after the termination of the relationships of attorney and client and principal and agent.</p> <p>Failure of the grantor to tender to the grantee before suit what the grantee had paid to or on account of the grantor under the agreement, cannot be relied on when the question was not raised in the lower court and when the grantor alleged in his bill that he had requested an accounting which had been refused, had prayed for an accounting and the grantee had received .rents and profits and it did not appear how much the grantee had paid for or on account of the grantor, and the grantor had offered at the hearing in the lower court to pay whatever the grantee had paid on his account.</p> <p>Under the circumstances the grantee under a deed obtained through undue influence is declared to be a trustee for the grantor and ordered to convey the property to him subject to leases made after the execution of the deed.</p>

<p>1. Objections to tbe manner of drawing and empanneling tbe grand jury returning an indictment must be presented and urged to tbe court at tbe first opportunity, or -they will be deemed waived.</p> <p>2. Every presumption is in favor of the regularity of the proceedings of the trial court. When the record is silent as to the manner of drawing the grand jury this court will presume that it was regularly and properly drawn.</p> <p>3. The time and place of execution are by law no part of the judgment. There is no statute in this Territory authorizing the court in pronouncing the death sentence to name the place and day of execution.</p> <p>4. Where the court in pronouncing the death sentence names the place and day of execution the sentence is not thereby rendered void. That part of the sentence in excess of the authority of the court being separable from the legal part may be stricken out or the prisoner may be taken before the court and resentenced.</p>

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

<p>A mortgage cannot operate as security for -a greater sum than that expressed on its face, even though it may operate to secure future advances without so indicating on its face.</p> <p>Money paid under a mistake of fact may be recovered, as where plaintiff, who had assumed the payment of a mortgage, asked the mortgagee how much w.as due and upon being told the whole amount of the mortgagor’s indebtedness paid it, including an amount not covered by the mortgage.</p>

<p>A contract debt due tbe defendant from tbe plaintiff arising out of a transaction independent of tbat sued on may be plead and established as a set-off to tbe plaintiff’s demand.</p> <p>In an action in assumpsit based on a written contract a claim for unliquidated damages growing out of a negligent or willful failure to perform tbe same contract cannot be properly plead as a set-off or counter-claim. Such a demand can only be recognized and allowed when presented by way of recoupment.</p>

<p>Objections to the charge of the court to the jury must be taken promptly and before the jury retire and preserved in a bill of exceptions in order to present the same to appellate court for review. Errors complained of must be clearly set forth in bill of exceptions and appear to be prejudicial to tihe party excepting.</p>

<p>One who gratuitously takes a child to treat and maintain as a child’ cannot recover compensation therefor from the child’s guardian until after notice to the guardian that further maintenance of the child will not he gratuitous.</p> <p>The guardian may properly show by way of defense that the maintenance of the child was gratuitous. He is not required to prove a contract that there should be no charge for the maintenance. Under the circumstances a new trial is granted though much of the evidence that was held inadmissible had been introduced and waanot stricken out.</p>

<p>A endorsed a certificate of stock in a corporation and delivered to B as a pledge to secure the payment of note and interest, also gave to pledgee a power authorizing the sale of stock if default was made in payment of debt at maturity. No new certificate w.as demanded or issued nor was the transaction recorded in the stock book of the corporation. A died intestate and insolvent. His administrator claims tihe right to the possession of the stock from the pledgee without paying the debt the stock was pledged to secure.</p> <p>Held, that by the endorsement and delivery of the certificate of stock with the power of sale the legal title to the stock passed to the pledgee and that the pledgee has the right to sell the stock and apply the proceeds to the payment of the debt, interest and costs, accounting to the administrator for the excess, if any,</p> <p>•Held, also, that Section 2016, Civ. L. 1897, relating to the transfer of stock in corporations and prescribing as prerequisites to a valid transfer of stock, except as between the parties, that either the certificate be surrendered and a new one issued to the transferee, •or that the transaction be recorded in the stock books of the corporation, was enacted particularly for the benefit of corporations and corporation creditors, and does not prevent a stockholder from selling or pledging his stock or passing title thereto, without complying with the terms of said statute, at least, against the claim of the pledgor’s administrator.</p>

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

<p>A judgment rendered by a District 'Magistrate in a summary proceeding to recover possession of land is void where the summons was made returnable in a less time than that required by the statute and where the complaint did not dhow the existence of the relation of landlord and tenant between the plaintiff and defendant, and where for these reasons the defendant declined to plead and the judgment which was for the plaintiff was forthwith rendered.</p> <p>A void judgment may be set aside on motion even though an appeal had been taken previously but dismissed for informalities.</p> <p>An appeal may be taken from a decision overruling a motion to set aside a judgment where a substantial right is involved and the judgment is1 clearly void as appears upon the face of the record.</p>

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

<p>On the evidence, the grantor in a certain deed is found to -have been, at the time of the execution thereof, mentally unsound to such a degree that she was incapable of making a Valid deed, and the instrument of conveyance is therefore declared null and void.</p>

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

<p>A Sheriff cannot bind the Territory to pay -a surgeon for an operation upon a private citizen made necessary by am. unauthorized act of a polieeman.</p>

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

<p>A power of attorney is not revoked by the mere giving of a similar power to another person.</p> <p>An oral acceptance of a written offer miay be sent through third persons who need not be formally authorized to act for the acceptor. A letter, set forth in the opinion, is held to contain an offer and not a mere request for an offer.</p>

<p>The Territory of Hawaii is not liable for injuries from defective streets.</p>

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

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

<p>The verdict of a jury will not be set aside by tbe appellate court where there is evidence to support it, and no prejudicial error of law 'appears.</p>

<p>The word “heirs” was not essential to convey a fee simple in a deed executed prior to the enactment of the ¡statute which adopted the common law.</p> <p>That statute did not affect titles which had vested prior to its enactment.</p>

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

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

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

<p>The by-laws of 'a mutual benefit society permitted a sick member to elect either “$1.25 a day during his illness” or “medical attendance, medicine and half a dollar a day,” or the amount of his hospital bill up to $1.25 a day. A sick member elected "medical attendance,” &c.,- but afterwards went to a hospital after being informed by the Society’s officers that if he did so he could have only $1.25 a day. He also signed a note for $400 loaned by tbe Society to pay for an operation at the hospital. Held, he changed his election from the second to the third class of benefits and that therefore the note was mot void for want of a consideration, assuming that the Society would have been liable for the operation as “medical attendance” in case the member had continued under his first election and that the note would In such case have been void.</p>

<p>In an action of ejectment for the possession of a tract of land, a deed in the chain of plaintiff’s title containing a recital .that the grantor was the brother and only surviving ¡relative of the patentee of the land, was properly admitted in evidence after the relationship and death of the parties had been established by evidence aliunde.</p> <p>An exception that attempts to embrace the objections to numerous rulings of the court on the admission of evidence, Held to be too general and indefinite to ¡require consideration by t'he appellate court.</p> <p>The judgment of the court in a jury waived case will not be disturbed where there is evidence to support it and no prejudicial error of ■law appears.</p>

<p>Alleged formal defects appearing upon tbe face of a petition in condemnation proceedings could not be taken 'advantage of by answer after tbe defendant bad demurred :and afterwards by leave of court withdrawn tbe demurrer and also by leave filed a plea and later tbe answer.</p> <p>Tbe mere fact that a defendant consented to tbe plaintiff’s constructing ■and operating a pipe and flume over tbe land , in question does not prevent tbe latter from instituting or further prosecuting proceedings to obtain a better title.</p> <p>When a defendant conveys tbe land in question to another after suit begun, tbe proper, course is to substitute tbe latter for tbe former and not to dismiss the petition as to him.</p> <p>But where the grantee has already been made a 'defendant as a claimant and the cause is afterwards dismissed on its motion as to its grantor because the latter no longer had any interest after conveyance, the grantee cannot have the cause dismissed as to itself also on the ground that no attempt was made by the plaintiff prior to suit to agree with it — the plaintiff having attempted and failed to agree with the grantor when it was owner and the statute requiring as a condition precedent to bringing .suit inability to agree with the then owner only.</p> <p>Where a party is made defendant and is alleged to “claim ownership,” and demurs and later pleads without raising the question of the sufficiency of the allegation as to its ownership, and afterwards answers denying that .a co-defendant is owner and averring that it itself is owner, and the proofs show that it is owner, it cannot say that no judgment can be rendered against it for want of a definite allegation in the petition that it is owner.</p>

<p>A Justice of the Supreme Court is not disqualified from sitting in a case with which he has had no previous connection, merely because a question of law is involved wihich was involved also in certain other and distinct cases 'at the trial of which he had presided whijn a Circuit Judge. The provision in Section 84 of the Organic Act that, “No judge shall sit on an appeal, or new trial, in any case, in which he may have given a previous judgment,” does not apply to such a case.</p> <p>Under our statutes, an appeal lies to the Supreme Court from a Circuit Judge at Chambers in a habeas corpus case, whether the order of the Circuit Judge be for the discharge or the remand of the prisoner.</p> <p>During the period between the annexation of these islands to the United States and the establishment '*of Territorial government, persons accused of crimes could lawfully be prosecuted without the intervention of a grand jury and convicted by nine out of twelve trial jurors.</p>

<p>A Justice of the Supreme Court is not disqualified from sitting on an appeal in a habeas corpus case 'brought to obtain the release of a prisoner under a sentence of imprisonment previously pronounced by isuch Justice when a Circuit Judge in a criminal case. The provision in Section 84 of the Organic Act that, “No judge shall sit on ■an appeal, or new trial, in any case in which he may have given a previous judgment,” does not apply to such a ease.</p> <p>During the period between the annexation of these islands to the United States and the establishment of Territorial government here, persons accused of crime could- lawfully be prosecuted without the intervention of a grand jury and convicted by nine out of twelve trial jurors.</p>

<p>An appeal lies to the Supreme Court of this Territory from the order of a Circuit Judge, in Chambers, dismissing a writ of habeas corpus and remanding the petitioner into custody.</p> <p>A commitment for an alleged contempt which consists in the disobedience of an order made without jurisdiction, is void. Relief from restraint under such void commitment may be had on habeas corpus.</p> <p>The marriage of a female ward under guardianship as a minor, terminates the guardianship.</p> <p>A Circuit Judge in Chambers, sitting in probate, at the hearing of a guardian’s petition for approval of accounts and discharge, to which proceeding A., a third person, is not a party, has no jurisdiction to order A. to reconvey to the ward land conveyed to Mm by her after her marriage or to commit A. for contempt for disobedience of said order.</p>

<p>A portion of the description of a kuleana in a Land Commission Award reads: “Hema 36° Ko. 1.22 Kh. e pili ana me Kahawai” (referring</p> <p>to the Iao Stream, Wailuku, Maui). Held, under the circumstances of the case as stated in the opinion, that the bed or channel of the stream is not included in the land awarded.</p>

<p>Parts of a statute may be invalid without rendering the statute invalid: as a whole. No opinion is expressed as to the invalidity of certain clauses of the income tax law which are claimed to violate the constitutional guarantees against self-incrimination, unreasonable-searches and seizures, excessive fines and cruel and unusual punishments, inasmuch as no action has been taken under those clauses, and they would not, if invalid, affect the remainder of the-statute.</p> <p>If the Territorial legislature cannot tax the interest from United' States bonds and the salaries of the judges of the Supreme and' Circuit Courts of the Territory, still the income tax law would not. be invalid as a whole though general in terms and not expressly-excepting such interest and salaries. A law may in cases be invalid or impliedly inapplicable to some of the objects within its. letter without 'being void as a whole. The invalid part, to avoid*, affecting the remainder of the law, need not he in a separate clause.</p> <p>The legislature may classify tihe objects of taxation, provided the classification is not merely arbitrary.</p> <p>The legislature may place individuals in one class and corporations in. another class, exempting the incomes of the former up to one thousand dollars in lieu of a deduction for personal and family expenses, and not allowing a similar exemption to corporations, they having no such expenses, a deduction of other necessary expenses being allowed in both cases.</p> <p>An exemption of incomes to the amount of one thousand dollars is not invalid on the ground that it is excessive.</p> <p>Such exemption is valid though allowed only for the aggregate income of all members of a family composed of one or both parents and one or more minor children, or husband and wife; and for each ward except where two or more wards are comprised in one family, in which case the aggregate deduction shall not exceed one thou^ sand dollars.</p> <p>In estimating the income from sales of personal property, a taxpayer may lawfully be permitted to omit products produced and consumed by himself and not sold.</p> <p>The 'legislature may lawfully put foreign insurance companies in a class by themselves, and tax them one per cent, on their gross income and other persons and corporations two per cent, on their net income and one per cent, on their property.</p>

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

<p>When a lessee fails to pay the rent reserved in a lease, the lessor has a plain, speedy and adequate remedy at law, to recover either the amount of such rent or summary possession of the land. In such case, equity has no jurisdiction to declare a forfeiture of the lease. So also, the aid of equity to- declare such forfeiture cannot properly be invoked on the ground that the lessee pays each installment of rent only after legal proceedings to recover summary possession of the land have been instituted.</p>

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

<p>The acceptance of a lease 'by the tenant for a part, or the whole, of the demised premises from a stranger Is an act inconsistent with his duty to the landlord and is a ground of forfeiture of the estate created by the prior lease. The forfeiture may be waived by the landlord.</p> <p>If a forfeiture is to be enforced the tenant is entitled to notice. The commencement of an action of ejectment against the stranger and the tenant without causing the tenant to be served with process is not notice to tlhe latter of the intention of the landlord to declare a forfeiture.</p>

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

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

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

<p>Bill far an Injunction, against 'depositing earth, stone and other material in a stream so as to obstruct the flow of water therein, dismissed because the averments on which the prayer for relief was based were not clearly established by the evidence.</p>

<p>Appeal from Tax Appeal Court, Honolulu.</p>

<p>Under our statutes, one who returns land for assessment purposes as sole owner without mention of a lease to which it is subject, cannot on appeal iset up the lease to show that (he had a less interest than that returned.</p>

<p>Upon the evidence, t)he decision of a Tax Appeal Court is reversed and a higher valuation placed upon certain property.</p>

<p>In an action for damages resulting by reason of the negligence of the defendant, a druggist, in filling a certain prescription, the plaintiff alleged in the declaration, inter alia, (that the liquid sold and delivered by the defendant to her and purporting to be the lotion ordered “contained some poisonous and deleterious ingredient not 'included in the prescription ordered.” Tfhe evidence tended to show that the liquid furnished contained 5.24 grains of bichloride of mercury to the ounce and not four grains only .as required by the prescription and that tihe bichloride of mercury was harmless in the quantity ordered but harmful in the quantity furnished. Held, that the variance, if any, between the pleadings and the proofs was immaterial.</p> <p>A chemist may testify ais an expert as to the effect on the human face of applications of bichloride of mercury.</p> <p>The evidence in this case held sufficient to support a finding by the jury that the increase of 1.24 grains of bichloride of mercury to the 'ounce caused the injury complained of to the plaintiff’s face.</p>

<p>Under a contract of sale of specific Chattels at a stipulated price, when nothing remains to he done to designate the property sold or the price to he paid, the title, independent of the statute of frauds, immediately vests in the buyer, an’d a right to tiihé price in the seller, unless it can be sihown tlha't such was not the intention, of 'the parties.</p>

<p>The valuation of certain property fixed, upon the evidence, at $10,000.</p>

<p>F. wrote to S. that T. intended to purchase goods, asked S. to treat her well, and let her select goods to a certain amount land look to him for payment. S. sold and delivered the goods to T., charged them to her, afterwards received part payment from her, and later brought action against F., alleging failure of T. to pay. Held, F’s promise was 'one of guaranty, only.</p> <p>A guarantor should have notice of tlhe acceptance of th'e guaranty. This notice need not he formal and may be inferred from eireumstances.</p> <p>A guarantor is released from liability to the extent to which he is injured by the failure of the creditor to prosecute his claim with reasonable diligence against the principal debtor.</p> <p>Civ. L. Sec. 1222 does not require the principal debtor to be joined as defendant with the guarantor.</p>

<p>Error to Circuit Judge, Fourth Circuit.</p>

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

<p>A low valuation is placed upon an ordinary lease of a small tract of land made only a few months before the date of assessment, there being no evidence that the rent reserved was less than the rental value or that the land had since increased in value.</p> <p>The combined values of the lessor’s and the lessee’s interests may, according to the circumstances, be greater or less than or equal to the value that the land would have if it iwere not subject to the ■lease.</p>

<p>Appeal from District Court South Hilo, Hawaii.</p>

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

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

<p>Under Civil Laws, Section 2113, which provides that kindred of the half blood shall inherit equally with those of the whole blood in the same degree, but shall be excluded when not of the blood of the ancestor from whom the inheritance came to the intestate hy descent, devise or gift, cousins of an intestate on his mother’s side inherit in preference to his half-brother on his father’s side where the estate came to him by descent from his half-sister on his mother’s side.</p> <p>Evidence of ouster or adverse possession must be much clearer as between co-tenants than as between strangers in title. The circumstances must be such as to bring home to the ousted co-tenant the adverse character of the possession or such as would bring it home to him if he paid proper attention to his rights. Notice or knowledge of the adverse possession may be implied or constructive as well as actual.</p> <p>But this rule as to adverse possession as between co-tenants does not apply where the possession of the one co-tenant is not at its inception in recognition of or subserviency to the other’© title; as, where the co-tenant in possession claims sole ownership and is not aware of the existence or claim of title in the other co-tenant.</p> <p>One in possession claiming title but having no title may purchase the outstanding title of one of two co-tenants and continue to hold without thereby acknowledging the similar title in the other co-tenant or holding in subserviency to that title.</p>

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

<p>A mortgage ■with covenant on the part of the mortgagors to cultivate the coffee now or hereafter growing on the mortgaged premises “to the satisfaction” of the mortgagee and with further covenant that upon a “breach in the performance or observance” of any one of the covenants contained therein, the indebtedness thereby secured should thereupon “become wholly due and payable,” gives to, the mortgagee 'an option to 'declare >a forfeiture whenever he may bona fide become, dissatisfied with the cultivation of the coffee.</p> <p>The finding of the trial judge that the mortgagee was not dissatisfied with the cultivation of the coffee is 'Sustained and the decree dismissing the bill is affirmed.</p>