Volume 14 — Hawaii Reports

<p>An order of this court remanding an equity cause to a Judge of the Circuit Court with direction to receive evidence on an issue raised by amended pleadings filed after the close of the original hearing before said Judge, and in support of which evidence was offered and rejected, does not direct a “new trial” and is not within the inhibition of Sec. 84 of the Organic Act disqualifying a Judge from ■sitting “on an appeal, or new trial, in any case, in which he may have given a previous judgment.”</p>

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

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

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

<p>The exemption in the income tax law (Laws of 1901, Act 20, §4) of "inheritances otherwise taxed as such” applies only to inheritances otherwise taxed as such under the territorial laws and not,to those so taxed under the federal laws.</p> <p>An inheritance of personal property is “acquired” within the meaning of §3 of the income tax law when it is received or at least when it is receivable and not immediately upon the death of the decedent.</p> <p>The income tax should be assessed on the balance only of the inheritance after deducting the federal succession tax if the latter has been paid.</p>

<p>In a controversy over the probate of an alleged will, the verdict of a jury in favor of the contestants, being supported by the evidence, is affirmed.</p>

<p>In an action for damages for removing and appropriating a division fence, the property of the plaintiff, and for the, construction of a new fence on plaintiff’s land near the division line, being a picket fence 30 feet in length and six feet high, a judgment in favor of the plaintiff for $336 is excessive.</p> <p>Where an appeal is taken from a judgment of a district magistrate to a circuit judge at chambers, the circuit court has no jurisdiction ,to hear and determine the cause.</p>

<p>A decree is binding between co-defendants, when they are adversary to each other and when their rights as against each other are adjudicated, whether there are cross-pleadings between them or not, if the matters could he adjudicated under the pleadings between the plaintiffs and defendants.</p> <p>One who appears generally and is made a party at his own request is bound by the decree so far as it properly goes under the pleadings, even though he appeared in consequence -of a published notice which was not -so broad as the complaint.</p> <p>The doctrine of -splitting eauses distinguished fro-m that of res judicata.</p> <p>So far as the ultimate matter adjudicated is concerned, all intermediate matters are conclusively presumed to have been adjudicated whether in fact raised or adjudicated or not.</p> <p>As to other ultimate matters, only those intermediate matters are regarded a-s adjudicated which were in fact adjudicated.</p> <p>Other ultimate matters -themselves -are not regarded as adjudicated if they were not in fact adjudicated although they might have been so far as the pleadings were concerned.</p> <p>A decree is binding as to necessary inferences though not as to possible or probable inferences from it.</p> <p>Under a complaint ttuat the defendant unlawfully constructed and maintained a dam and by means thereof diverted water, a decision ■that the dam need not be removed because it might 'be lawfully used "for a diversion to certain land and does not appear to be used ■for a diversion to any land, does not settle that it might lawfully he used for a diversion to other lands.</p> <p>Nor does a decision 'that a certain quantity of water may lawfully be diverted at other dam-s settle that the same or -a-ny less quantity may lawfully he diverted at this dam.</p> <p>A decision 'that a certain quantity of water may be taken from an ancient ditch by means of a new flume to lands that have no water rights because of a discontinuance in the use of a certain other quantity of water on other lands that have water rights, does not settle that an additional quantity may afterwards be so taken at the same point, or even the same quantity if the use of water on the old lands has been resumed, or an additional quantity in lieu of using it on still other lands that have water rights.</p> <p>Under a complaint that defendant enlarged ancient ditches and took more water than it was entitled to and took water to lands that had no water rights, it was proper to decide that the defendant ■had acquired a right to take all the water in controversy by day and the plaintiffs a 'similar right by night, as a basis for the conclusion that the defendant’s acts were not prejudicial to the plaintiff’s rights, since if it had the right to take all such water at certain points during certain times it was immaterial whether it took it in large or small ditches or to lands that had or to lands that had not water rights.</p> <p>Such intermediate finding of an alternate day an>d night use is res judicata in other suits between the same parties as to the same or other acts complained of.</p> <p>The decision in Lomaea v. WailiOm Hagur Go., 9 Haw. 651, that the defendant had an exclusive day right to water (subject to certain exceptions), referred to prescriptive rights only and did not cover surplus or storm water. It was not intended to cover surplus wafer, nor is it ia necessary inference 'that it did, in spite of an actual contrary intention.</p> <p>That decision did not (aside from the finding as to a.n exclusive prescriptive day right) adjudge that the defendant had a general right to a fair proportion of the surplus water, or that it was not •then taking more than its proportion, if it had such a right. The court did not intend to so decide, nor is it a necessary inference that it did, even if ithe pleadings were broad enough to have permitted it to do so.</p>

<p>On the- itrial of a libel for divorce based on tbe ground of th© alleged ■adultery of tbe libeliee, circumstantial evidence may suffice to prove tbe commission of t)be alleged offense; but when, as under tbe circumstances stated in tbe opinion, if is not a necessary inference from tbe other facts shown that adultery was committed, a finding by the trial court that- tbe main allegation of tbe libel was not proved, cannot be set aside on tbe ground that it is contrary to tbe evidence or unsupported by any evidence.</p>

<p>■K. employed P. “as collector and clerk to collect her rents, settle and piay bills, pay her -servants and generally to attend ito her domestic financial concerns under her order and direction -and from time to time to make due and proper accounts thereof.” P.’s employment in that capacity continued for two years and more, at the end of which time she was discharged by K. P. then instituted an -action at law -against K. for compensation alleged to be due her for her services. Shortly thereafter K. -brought a suit -in equity against P. for an accounting as to the moneys received and paid out by P. -on K.’s behalf.</p> <p>Held, that P. was a quasi-trustee for K. and that ia fiduciary relation existed -between the parties, that under tihe circumstances the court of equity properly took jurisdiction to determine the state of -the account between them and that in, iso doing it took jurisdiction of matters not then before the court of law.</p> <p>If jurisdiction has once been properly assumed, a court of -equity may retain it throughout the -litigation until full justice has been done between -the parties, even though -in so doing it m-ay decide questions which, standing alone, would furnish no basis of equitable, jurisdiction. Equity in this case properly retained jurisdiction to determine the issues of compensation and of the lawfulness of the agent’s discharge and other incidental questions and properly enjoined the prosecution of -the -action -aJt law.</p> <p>Under the circumstances stated, P. was not entitled to a trial by jury under Section 3, Airt. 6 of the -Constitution of 1894 in force at the date of -the institution of these proceedings.</p>

<p>A fee allowed an auctioneer in partition proceedings is reduced on appeal as being clearly excessive.</p>

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

<p>A royal patent issued in 1866 by Kannehameha V to land covered by ¡the mahele of 1848, which describes the seaward 'boundary line, as “running to the sea; thence along the sea at low water mark,” conveys the land lying between high and low water mark within such boundary line, the (king having power to convey land between high and low water mark.</p> <p>The resolution of the Privy Council of August 29, 1850, did not have •the effect of a law, ais -the Privy Council had no authority to enact laws.</p> <p>The words, “koe nae ke kuleana o na kanaka” or, in their English equivalent, “reserving however the people’s kuleana therein,” as used in conveyances in this Territory, mean's ¡a reservation of the house lots, taro patches, or gardens of natives lying within the boundaries of the land conveyed.</p>

<p>A -decision overruling a plea of former conviction is interlocutory and cannot be taken to tbe Supreme Court on exceptions before tbe final disposition of tbe case in tbe Circuit Count, except by permission of tbe Circuit Judge.</p> <p>An exception to an interlocutory decision may, -if reduced to writing in a summary mode and presented to t-he judge within -the time ■prescribed by statute and allowed and signed by the judge, be ■brought to tibe Supreme Court -after the final disposition of the case without a formal bill of exceptions though -the usual and better practice is to have a formal bill of exceptions.</p> <p>A trial judge may take a reasonable time in whioh to examine and pass upon a bill of exceptions after the expiration of t'he time within which it must be presented to him, but he cannot refuse to sign it until the final disposition of the case when he is satisfied with its correctness and the case may not 'be finally disposed of until long afterwards.</p> <p>The Supreme Court may allow a bill of exceptions upon the refusal of the -trial judge to do so, it being ishown to be conformable to the truth.</p>

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

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

<p>One does not cease to be the owner of a tract of land for the purposes of taxation by merely entering into am executory agreement to convey the same upon certain conditions not yet performed.</p> <p>Under a statutory provision that different items of property land different interests in property should be assessed separately, an assessment in good faith to one person of a whole tract which was previously owned by him and which could properly he assessed as. a whole to him if wholly owned by him is not wholly void merely because he had sold ia small portion of the tract without .the knowledge of the assessor.</p> <p>In such case, as in cases of mere overvaluation, the sole remedy is. hy an appeal from the assessor to the tax appeal court atnd not 'by an action or defense in an action 'at law, .and if the party has neglected to make a return as required by the statute he cannot appeal to the tax appeal court and has no remedy.</p>

<p>A tax on income is in isubstan.ce and effect a, tax on the property producing the income.</p> <p>Income derived from property exempt from taxation by contract, authorized by statute, is also exempt.</p> <p>An Mvtmal subsidy granted by the Legislature is mot “fairly necessary •to the reasonable construction, operation. iamd mainterauuce” of a railroad after the road is completed and 'being operated at a profit; mor is such subsidy exempt from taxation under ia contract exempting all the property of the railroad “fairly necessary to. the reasonable construction, operation and maintenance” of the railroad.</p>

<p>In a prosecution for adultery, an admission by one of two eodefendants a sbont time before 'that she was then married to a third person, is competent and sufficient evidence of such marriage as against herself, but not as against her co defendant.</p>

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

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

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

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

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

<p>Expenses of tlie last illness of a decedent, are not entitled to priority of payment over ordinary debts.</p>

<p>Under tlie provisions of the election law that candidates, shall be nominated by writing signed by not less than twenty-five qualified electors of the district and deposited together with twenty-five dollars with the Secretary of the Territory not less than a prescribed time before the election, and that the ballots shall contain the names) of all candidates so nominated and no other name, the Secretary cannot lawfully inquire into and pass upon the qualifications of a candidate or decline to place his name upon the ballots if he is duly nominated, even though he, the Secretary, may believe him to be disqualified, nor can the counts compel him to do so,— although the Secretary may inquire into and pass upon the question of due nomination and omit from the ballots the name of a candidate if the law prescribing the requirements of a 'due nomination has not been complied with and may be compelled by the courts to perform his duty in that respect.</p>

<p>“What ara dieta and what weight should be given to them, discussed. Under our divorce statute alimony in gross may be awiarded.</p> <p>The granting of alimony is ancillary to the granting of the divorce and great particularity is not required in the prayer for alimony.</p> <p>In estimating the amount of alimony in gross it is not necessary to use fables of mortality and annuities.</p> <p>In this case the amount of alimony allowed by the Circuit Court is held to ‘be clearly excessive and the time within which if should be paid too short.</p>

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

<p>Appeal erom Clrouit Judge, Eirst Circuit.</p>

<p>A writ of error may issue from this Court to a Circuit Judge sitting, in. , Probate, lalt Chambers.</p> <p>A Circuit Judge, at Chambers, has no jurisdiction to revise or modify a decree of divorce rendered in the Circuit Court.</p> <p>The consent of the parties cannot give the Judge or Court jurisdiction over the subject matter of a controversy.</p>

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

<p>One who has the fee in one half and remainder in the other half of a piece of land may have partition as against the life-tenant of the latter half.</p> <p>A conveyance in fee simple with a reservation or exception of a right in the grantor “to jointly use and occupy said property during her natural life, together with the grantee,” does not leave in the grantor a life interest in more than one half the property, nor does it create such a personal relation between the grantor and grantee, who were mother and daughter, as to prevent the latter from alienating her interest.</p>

<p>Appeal from the Assessment of Stamp Duty made by the Treasurer.</p>

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

<p>In. a suit in equity to foreclose a mortgage on real estate, the mortgagor and mortgagee being the only parties to the suit and 'the bill and answer being silent as to taxes delinquent, it is error for the court to decree that the taxes are ia prior .lien and must be paid first from proceeds of the sale of property.</p>

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

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

<p>Under the Bankruptcy Act of 1898 (30 U. S. Stait. alt L. 544) it is one of the essentials of a voidable preference that the person receiving it or his agent shall, at the time of its receipt, have had reasonable cause to believe that it was intended thereby to give a preference and this necessarily includes reasonable cause to believe that the debtor was at the time insolvent.</p> <p>Upon the evidence in this case, held that it is noit satisfactorily shown that ‘the alleged preferred creditor 'had at the time of the transfer, reasonable cause to believe that the debtor was insolvent.</p>

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

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

<p>On hateas corpus to test the validity of a judgment for contempt, the court may consider questions of jurisdiction only and not questions of mere irregularity or error.</p> <p>Ail reasonable intendments are made in favor of the jurisdiction of superior courts of record When their judgments are attacked collaterally.</p> <p>Whether an answer under oath by one cited for contempt operates as a'purger or not depends on the circumstances.</p> <p>Whether all three Judges of the First Circuit may sit together as a court 'or not is immaterial if, when they do sit together, the presiding judge for the term substantially conducts the proceedings and finally pronounce® judgment as if he alone constituted the court, the others being deemed to act in an advisory capacity only.</p>

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

<p>The record or a certified copy of a deed, duly recorded, is competent evidence where the original would be admissible. That the record or certified copy would tend t'o> impeach the validity of the original deed, is not a good objection to its admission in evidence.</p>

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

<p>Appeal from the Auditor.</p>

<p>One who is out of possession of real property, though entitled thereto, may not, taking the law into his own hand®, recover such possession by force.</p> <p>One who is in the actual peaceable possession, of real -property, may 'defend that possession by the use of such force as may be reasonably necessary for that purpose.</p> <p>What is actual peaceable possession within the meaning of this rule, is to be determined in view of the ci 'cumstances of each particular case.</p> <p>Where .an illegal sentence has been imposed, the case may be remanded to the trial court for the imposition of a legal sentence.</p>

<p>The provision, of the Federal Constitution conferring the right of trial hy jury in suits at common law where the value in controversy exceeds twenty dollars, is sufficiently complied with in eases within the jurisdiction of District Magistrates under our statutes if a trial hy jury is allowed on appeal in the Circuit Court.</p> <p>An entire claim cannot be split for the purpose of bringing separate actions on the different parts within the jurisdiction of an inferior court.</p> <p>The amount for which judgment is asked and not the amount due determines whether the oase is within the jurisdiction of the court.</p> <p>A portion of an entire claim may be waived for the purpose of bringing action on the balance within the jurisdiction of an inferior court.</p> <p>An ordinary continuous running book account is such an entire claim as cannot be split for the purpose of bringing several actions on the different parts.</p> <p>If action 'is brought on a part only of an entire claim, the rest will be deemed to be waived.</p> <p>If action is brought 'on a part of an entire claim, the pant being within and tlie whole being beyond the jurisdiction of the court, the result will be, not that the court will not have jurisdiction, but (that the judgment wi'll bar further action on the balance of the claim.</p> <p>Nemble, that .attorney’s commissions and costs allowed by statute, though prayed for, should not be included in determining whether the amount sued for is within the jurisdiction of the court, but</p> <p>Interest, whether allowed by the terms of the contract or by law as damages for the detention of money, should be included if .prayed for.</p> <p>While interest may be waived either expressly or by omission to pray for it, so as to bring a case within the jurisdiction of an inferior court, or, if not prayed for, may be remitted in case the judgment Includes it, yet, if prayed for and allowed in the judgment, the error cannot be cured by remitting the excess beyond the jurisdictional amount, since the court never acquired jurisdiction over the case and its judgment is absolutely void.</p> <p>The question of want of jurisdiction may be raised in this court although the record of the lower court does not show that it was raised there except in the notice of appeal filed after judgment was rendered.</p>

<p>When, an appeal bond is made out to the court instead of to the clerk, the remedy 'is not to dismiss the appeal but to order an amendment of the bond, under Civ. L., § 1459.</p> <p>Points of law on appeal from a District Magistrate 'held set out with sufficient clearness under the circumstances.</p> <p>Lewers cf Coolie v. Redhousc, ante 290, followed as to the splitting of claims so as to bring them within the jurisdiction of a District Magistrate.</p> <p>When a claim is .split for such purpose, the proper course is to show in the second action that the claim has been 'adjudicated in the first action, and not to object to the jurisdiction of the court on the ground that the claim sued on is only a part o'f a larger claim, irrespective -of whether the balance has been adjudicated or sued on.</p>

<p>The certificate of the District Magistrate that an appeal was 'duly noted, etc., on certain points, enumerating them, is sufficient to show that the points were raised in his court.</p> <p>A debt owing to a partnership cannot be garnished in an action against one of the partners.</p>

<p>Under Act 40 of the Laws of 1898 an exception to an order granting a new trial in a term case may be certified to tbe Supreme Court by tbe presiding judge, whenever sucb judge in bis discretion may think the same advisable for a speedy termination of the case.</p> <p>An order of the trial judge granting a new trial may be set aside, in a case Where there was ample evidence to support the verdict of the jury, and -no sufficient cause for the order exists.</p>

<p>Indecent exposure in a public place, where it may he seen by others if they pass by, is, even though actually seen, by one person only, punishable under Section 324 of the Penal Laws.</p>

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

<p>Under former Circuit Court Rule 15C, if that rule is still in force, providing that a hill of exceptions may.he filed with the Clerk in • the absence of the Judge, absence of the Judge from his chambers during a part of a day only, as during the noon hour, is not sufficient.</p>

<p>An application for a continuance of a cause is addressed to the sound legal discretion of ithe court.</p> <p>Every motion for a continuance should stand on its own merit.</p> <p>A circuit judge has no right to make a rule or to follow the practice of allowing a continuance of causes for the term, on payment of costs, without sufficient showing therefor.</p>

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

<p>Where no error is pointed out in the former decision and no sufficient reason given for reopening the cause the motion for re-argument and reguest for modification of the decision will he denied.</p>

<p>When one is shown to have been, for more than the statutory period, in actual, open, notorious, continuous and exclusive possession of land, apparently as owner, and such possession is unexplained as hy showing that it was under a lease from or ether contract with or otherwise hy permission of the true owners, the presumption is that such possession was hostile.</p>

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

<p>It is not error to refuse to instruct the jury that -a certain article of .a certain constitution was in force during a certain period, without stating the substance of the article, even if the article were applicable to the case.</p> <p>Time does not run against the state even though the state does not acquire title until after the period of limitation has begun to run against the prior owner.</p> <p>The rule that time does not run against t'he king applied to the King of Hawaii in his capacity as sovereign only, and not in his private capacity.</p> <p>Article 39 of the Constitution of 1864, which provided that, “The King’s private lands and other property are inviolable,” though -applying to his strictly private lands' as distinguished fr-o-m crown lands, did not prevent the statute of limitations from operating upon such private fends.</p> <p>Evidence held sufficient to justify the giving of instructions as to the law of tacking successive adverse possessions.</p> <p>Where one is shown to. have been in possession for the period -of limitation apparently -as owner, and the possession is not -explained or otherwise -accounted for, it will be presumed 'to have been -adverse, although the presumption is open to rebuttal.</p> <p>Instructions -need not be given in the form requested if given substantially in other f-orm.</p> <p>Evidence held -sufficient to support the verdict.</p>

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

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

<p>•In a statutory action to quiet title, the judgment may, in a proper case, include an award of possession and he enforced hy a writ of possession.</p> <p>■-Quere, whether an unexecuted judgment for possession stays the running of the statute of limitations.</p>

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

<p>A testator devised certain land, which was subject to a 25 year lease at a rental of $6,000 a year, to his -wife, three sons and six daughters, ■ as follows: (1) To his wife a life estate of $2,000 or, in case of a change in the lease, ione~third the net income, and, in case of her death, said $2,000 a year or one-third to be equally divided among all his children or surviving children, .aind to each of the children or surviving children an 'equal shore of the remaining $4,000 or two-thirds of the income; (2) * * * (3) At the expiration, of the lease, to his sons or then surviving sons or son, the land, provided such sons or son should then pay $5,000 to each of the daughters or surviving daughters, but, in ca-se one or two, of ithe sons should be unable to pay such amounts within a year from that time, the other son or sons to have the right to buy the whole by paying (a) to each daughter or surviving daughter $5,000, (b) to, the short-coming son or sons each $5,000, and that by doing so, the sons or son will enter into full possession, and their or his right and title be undisputable, provided they comply with the said conditions, and (c) to ■the wife, a life rent of $2,000 a year, to be a charge 'on the estate; (4) Should none of the sons be able to pay these amounts, then the land to be sold or leased again according to the best interests of the family, the proceeds to be equally divided among the children or their lawful heirs and assigns, after the distributive share of dower is given to the wife. The wife and all the children survived the testator. Held,</p> <p>The widow took a life estate in one-third the land, subject to be divested upon the performance of the conditions prescribed in the third item, in which case she would thereafter have a fixed sum of $2,000 a year, which would be .a charge on the land.</p> <p>The children took, subject to the widow’s interest, equal estates until ■the expiration of the lease, with vested remainders in fee, the former merging in the latter so as to make present vested estates in fee, defeasible as to the interests of the daughters and short-coming son or sons upon the performance of the prescribed conditions by the other son or isons, the sons meanwhile having contingent executory devises as to such interests.</p>

<p>No appropriation was made by Act 10 of the Laws of 1901 for payment of the compensation of the bailiffs whose appointment was thereby ■provided for, nor was the Treasurer by that Act authorized to pay suoh compensation.</p>

<p>Parol evidence is inadmissible to vary or contradict tbe terms -of a deed, as, for instance, to sbow that tbe survey notes made one distance longer tbian tbat described in tbe deed.</p> <p>Evidence is inadmissible to sbow tbe usual meaning of ordinary words, as, for instance, tbe broader popular or tbe narrower legal meaning of tbe word “beacb”. Tbe Courts take judicial notice of such meanings.</p> <p>Tbe beacb between bigb and low water marks could be granted to private persons 'before tbe annexation of these islands to tbe United States.</p> <p>Even if the law were now different, titles to beacb property previously acquired would remain valid.</p> <p>Crown lands were alienable by tbe King -in 1853.</p> <p>Accretion belongs to tbe littoral proprietor.</p> <p>A description in a deed, first by monuments, one boundary being represented as adjoining or coinciding with tbe edge or tbe shore of the sea; then by courses and distances, which apparently do ■not go quite to high water mark, and finally by a diagram representing the space between the land as described by courses and distances and the sea as “beach”, carried title to high water mark at least.</p> <p>The words “with the right of extension to low water mark” added to a specific description of certain land near the sea, carry the fee to the land in front of the specifically described land, so far as tbe grantor has the fee.</p> <p>As a rule land cannot be appurtenant to land.</p> <p>In construing a deed, tbe court will, in order to- give effect to tbe intention of tbe parties, construe a word in a popular or technical or purely arbitrary sense, provided tbe intended sense can be ascertained in a legal manner. Ordinarily tbe ordinary meaning will be given to a word, but that it was used in some other sense may be shown by the context, or by proof that it had a different meaning in the particular trade or locality, or, in case of a latent ambiguity, by parol evidence of tbe special circumstances of the-case.</p> <p>The word “beach” may be used in a legal sense as meaning the space between higb and low water marks or in a popular sense as. including more or less land according to tbe circumstances, above high water mark.</p> <p>When a deed described certain land by courses and distances and then ■added, “And also tbe sea beach in front of the same down to low water mark,” and the particularly described land extended nearly to higb water mark and the land between was of little value and was used in connection with the rest and no reason appeared for not including it or for granting ‘the beach between 'high and low water marks alone, and possession of the strip between was taken by the grantee without question, it was error to direct a nonsuit on the ground that the word “beach” had a fixed legal meaning covering the space between- high and low water marks alone.</p>

<p>A notice of “intention to appeal” is not a notice of appeal within the meaning of Section 1, Act 40, Laws of 1898.</p>

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

<p>A partner may represent and bind tbe partnership and its other mem'bers in matters within the scope of the partnership business.</p> <p>A partnership was formed for the purpose of engaging “in the business of administering the formulas known as the Hagey Gold Cure, and in the establishment and disposition of Institutes for the purpose of administering said formulas.” The articles also contained clauses -prohibiting any of the partners from creating any liability on behalf of the company, providing for the contribution by the partners to a fund for the establishment and maintenance of institutes, and reciting that the members would not be bound for any debts and obligations incurred otherwise. Held, that, assuming that it was within the power of a partner to sell or dispose of the right to establish and conduct institutes in certain portions of the field owned by the partnership, nevertheless no partner as such had authority, in making such a sale, to bind the -other partners by a contract to guarantee to the extent of £2000 satisfaction with the Hagey business and thus create, a liability to pay that amount in case of dissatisfaction.</p> <p>A partner has no authority as such to form a new partnership to include within its membership the original partnership or its members.</p> <p>A power of attorney authorized the agent to act for the principal “in all matters connected with the A. P. & I. H. Co. and for that purpose to establish institutes and to sell the medicines compounded under the formulas belonging to the company; to sell and dispose of the said formulas in the district where he may be operating; and to do and perform all other acts and things that may be necessary and proper in the prosecution of the business of the said company”. Held, that no authority was by this instrument granted to the agent to form a new partnership including within its membership the original association or its members.</p> <p>General words in a power of attorney must be construed with reference-to the specified objects to be accomplished.</p> <p>Where a principal accepts the benefits of an unauthorized act of an. agent with knowledge, actual or constructive, of all the material, facts, he is deemed to have ratified the act and is bound thereby; but if the -acceptance -be in ignorance or under misapprehension-of any of the essential circumstances relating to the transaction,, this will absolve the principal from all liability by reason of any supposed assent to the previously unauthorized act of the agent...</p> <p>A cancellation of one agreement is a good consideration for the execution of another.</p> <p>It is a sufficient consideration for an agreement that the party claiming a benefit thereunder caused to be executed a release of an encumbrance standing against the property of the other party.</p>

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

<p>Chapter 64 of the Civil Laws of 1897, relating to Stamp Duties, is not inconsistent with the provisions of Section 8 of Article 1 of the Constitution of the United States and was continued in force by the Organic Act.</p> <p>The item in the schedule of that .chapter relating to stamps on deeds does not provide for unequal taxation and is not invalid.</p> <p>A decree in equity required the respondent to give to the complainant a good and sufficient deed of certain land. Held, that the giving of an unstamped deed was not a full compliance with the decree.</p>

<p>A partnership of indefinite duration may be dissolved at will, and one formed for a specified period may be dissolved dn equity for . cause, and probably it may be dissolved at will before rtihe expiration of such period, though the -one so dissolving it will be liable to an action for damages for breach of contract and may be denied assistance in equity.</p> <p>But if the agreement of partnership, though specifying a definite term, also provides that the partnership may be dissolved at the will of any partner at any time, any partner may so dissolve it at will without liability to action for breach of contract or denial of assistance in equity in respect to an accounting and winding up.</p> <p>• The agreement in question is held to be of this character.</p> <p>The court should not interpolate words dn a contract unless necessary to effectuate the intention of the parties as gathered from the whole instrument.</p> <p>An agreement to arbitrate which is general and does not make submission to arbitration >a condition precedent to the right to -sue •does not prevent suit without first submitting to arbitration.</p>

<p>If a guardian mixes the trust funds with his own and keeps no separate account which is complete, reliable or satisfactory, he must be charged with interest upon money which he permits to lie idle for an unreasonable length of time.</p> <p>A guardian is chargeable not only with rents actually received by him from the property of his ward but also with such additional •rents as he would have obtained had he faithfully and diligently discharged his duties.</p> <p>While a guardian should be allowed all sums reasonably necessary for the maintenance of the ward and paid 'by him for such purpose nut of the income of the estate, still, where it appears- that such payments were made by a deceased guardian, not at regular intervals or in regular amounts, but only irregularly as necessity required, the guardian’s estate cannot, upon 'an accounting by the executor of the will of the deceased guardian, be allowin addition to payments shown to have been actually made, a lump sum for further payments not shown to have been made but based merely upon conjecture.</p> <p>A guardian who is guilty of gross negligence in the performance of his duties is not entitled to commissions.</p>

<p>A material-man of a sub-contractor Is one of the class designated by Secti-on 1 of Chapter 21 of th-e Laws of 1888 as entitled to the lien therein -provided for.</p> <p>Such material-man is given the lien by the statute even though no contract to furnish the materials is entered into by him with the owner of the structure.</p> <p>A material-man has a right to rely upon the lion given him by law as well as upon the personal liability of the sub-contractor and the presumption is, in the absence of any showing to the contrary, that in furnishing the materials he intends to avail himself of both remedies so far as necessary.</p> <p>The fact that the materials are charged on the material-man’s books to the contractor alone affords some evidence that they were furnished on his credit, but is not prima facie evidence that his credit was relied on to the exclusion of the credit of the building.</p> <p>Cash advanced to a sub-contractor to be used by him in paying the laborers engaged in grading the line of a railroad, is not, within the meaning of the statute, either labor or material to be used in the construction of such railroad.</p> <p>When the declaration has been filed and process issued, with the intent that service be made promptly, proceedings have been “commenced” within the meaning of the provisions of Section 2 of Chapter 21 of the Laws of 1888 that “the lien shall continue for three months, anu no longer, * * * * unless the same shall have been satisfied or proceedings commenced to collect the amount due thereon by enforcing the same.”</p>

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

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

<p>The Hawaiian statutes giving Ironohikis, or landlords, special privileges in. the sea fisheries adjoining their land were not grants of property or covenants in the nature of grants but were public statutes In which no one could acquire -a vested right.</p> <p>The phrase “private property” used in these statutes denoted no more than the special rights, or privileges, given by the .law over the sea fishery.</p> <p>When the statutes were repealed by the Organic Act the kcmohiki, or landlord, no longer had any “private property” in such fishery. Exclusive rights in a sea fishery surrounding these islands could not be acquired by prescription or -ancient custom.</p> <p>The konohiki’s, or landlord’s, “private property” in the sea fishery could not pass as an appurtenance to the land.</p> <p>A Royal Patent containing, after the description of the 1-and conveyed and before the habendum clause, a recital that “there is also attached to this land a fishery right in the sea adjoining” without express words of grant referring to the fishery does not convey any right in the fishery.</p>

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

<p>. It is not necessary to obtain an order in. equity for tbe . execution of an ordinary power of sale given to ¡a life tenant under ¡a will;-</p> <p>Nor to set forth in the deed the facts that make the sale necessary or ¡advisable where by the will tbe sale is authorized in ease it is necessary or advisable.</p> <p>Under the circumstances of this case as set forth in the opinion, the life tenant is held to be the sole judge of the advisability of selling.</p>

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

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

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

<p>An appeal may be tallen by a party in person or by a new attorney without a substitution of attorneys of record, from an order in respect to a matter, such as counsel fees, in which the interests of such party and his attorney are adverse.</p> <p>Exception and writ of error, and not appeal, lies in divorce cases.</p>

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

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

<p>A motion to set aside a default is addressed to the discretion of the trial judge and is not subject to review on exceptions in the absence of an abuse of discretion.</p> <p>The finding of a jury on a question of fact will not be set aside by this court where there is evidence to support it.</p>

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

<p>A writ of error is dismissed for the reason- that the plaintiff in error failed to comply with the rule of this court in regard to filing hriefs.</p>

<p>That part of Section 1435, Civil Laws, permitting execution to issue on judgments pending appeal does not apply to District Court cases wherein a jury trial is demandable as of right.</p> <p>The District Magistrate has no authority to issue execution in such cases on a judgment rendered by him pending an appeal.</p>

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

<p>Motion eor Rehearing.</p>

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

<p>The Circuit Court of this Territory and the Circuit Judges in Chambers have jurisdiction of actions at law and suits in equity brought by trustees in bankruptcy to recover money or other property transferred by the bankrupt to third parties in fraud of the Federal Bankruptcy Act before the institution of the proceedings in bankruptcy, and should exercise such, jurisdiction when occasion arises, at least in the oases in which the Federal Court -for this Territory has not jurisdiction. Bardes v. Hawarden Bank, 178 U. S. 524, followed.</p> <p>A trustee’s remedy is by an action at law and not by a suit in equity, when the sole relief sought is the recovery of money so- transferred ■by the bankrupt.</p>

<p>K.’conveyed to A.a lot of land which was described in tbe deed by metes ■and bounds. According to that description the westerly side of the ■lot ran “along Lot 3 and proposed road” and the rear side “along Lot 5”. Subsequently K. conveyed to B. other land adjoining the lot first mentioned. In an action at law by A. -against B. for damages for alleged obstruction by the latter of a road called in the declaration “Rear Road” and therein described as “appurtenant to said lot” and as “running from the rear of said lot” to a point named, the plaintiff claimed -at the trial that the words “and proposed road” had been inserted by mistake in the description of the westerly side of the lot and that it should have been inserted in the description of the rear side, and, in -support of the allegation of the existence of said rear road and of his right to use the same, offered parol evidence tending to show that when he purchased the lot he did so “according to” -a map or plat of a -larger piece of land of which his -lot was a part, which map or plat showed the proposed road -as running from the rear and not from the westerly side. The map or plat was not .attached to or in any way referred to in the deed. Held, that the parol evidence offered was inadmissible, under the circumstances, its effect being .to. vary or contradict the terms of the deed.</p>

<p>Equity may grant maintenance to a wife without special statutory authority and independently of a suit for divorce or separation, ■on the ground that the remedy at law through the pledging of the (husband’s credit for necessaries is inadequate.</p> <p>This being deemed the better and more prevalent view at present in the United States, the court is not required to follow the old English rule to the contrary.</p> <p>The old English rule need not be followed, for the,reasons stated in the opinion, -although (1) our statute (Civ. 1., § 1498) defining equity jurisdiction was copied from the statutes -of Massachusetts where the old English rule is regarded -as the correct rule, and (2) -our -statute (Id. § 1109) adopts the common law, as ascertained -by English -and Amerioan decisions, -and (3) the legislature has made express provision for -alimony in connection with divorce -and separation (Id. -Ch. 125).</p> <p>Temporary maintenance may be granted in an equity -suit for maintenance.</p> <p>An order for such temporary maintenance is -appealable.</p> <p>The Circuit Judge 'is without jurisdiction to enforce sudh order by contempt proceedings pending an -appeal.</p> <p>Under a prayer for a writ -of prohibition -against further proceedings in -a cause, -a writ may be allowed -against further proceedings in ■one branch of the cause ia-nd denied as to the remainder.</p> <p>The rule that the writ will not be granted unless the question of jurisdiction has first -been presented to the lower court, does not apply to summary proceedings -of a quasi-criminal nature, -as in cases of contempt.</p>

<p>Probable cause as ground for a suit for malicious prosecution does not depend on the actual state of tibe ease in point of fact, but upon the honest and reasonable belief of the party commencing the prosecution.</p> <p>A judgment for the defendant is found -to he supported by the evidence and the exception 'is overruled.</p>

<p>Motion for Re-hearing.</p>

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

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

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

<p>A. leased -to B. a whole ahupu-a-a situate in the District of North Kona -and extending from the -sea to -at least the upper government road. Tthere was some lantana on the demised premises ten years prior to the commencement of the term of the le-ase. Held, that evidence that the lessee had permitted the land to become overgrown with lant-ana, is not of itself a prima facie showing -of a breach -of the covenant n-ot to suffer waste.</p>

<p>Service by' publication in divorce cases, when required by the statute to be made in certain named newspapers, cannot be made in other newspapers.</p> <p>That is so even though the newspapers named in the statute have - ■ ceased to exist at all or at least under such names.</p> <p>That is so also even though since such cessation of such named newspapers service by publication has been mad© in other newspapers in a number of cases by order of various Circuit Judges covering a period of several years. The arguments of contemporaneous and long continued construction and hardship, if otherwise shown by the facts, do not apply in a case where the statute is explicit and does not admit of construction.</p>

<p>The value of sugar mills, buildings and a plantation railroad discarded ’on account of the erection of larger mill at a different location and the construction of a different railroad connected therewith, is not a* loss “actually- sustained during the year incurred in trade, or arising from loss by fire not covered by insurance, or losses otherwise actually incurred,’ and cannot be deducted in computing the net income of the plantation subject to taxation under the Income Tax law of the Territory. (Act 20, Session Laws, 1901).</p>

<p>Appeals from District Magistrate, Honolulu.</p>

<p>Tie exceptions taken in this case to tie verdict, -to overruling motion for new -trial -and to refusal to give instruction, not presenting ans prejudicial error, are overruled.</p>

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

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

<p>A copy of a summons that does not have the impress of the seal or the signature of the cleric of the court, when issued from a cout of record and delivered to a garnishee, is defective in substance. Such defect cannot be corrected by amendment.</p>

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

<p>Motion for Rehearing.</p>

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

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

<p>An exception to the order of a Circuit Judge granting a motion and directing a verdict for the defendant in an ejectment suit, one of the grounds of the motion being that the undisputed evidence showed title to the premises in controversy to have vested in the defendant by adverse possession, is overruled.</p>

<p>A decree of sale in a partition suit need not contain a particular description of the property involved if by reference a precise description set forth in the bill of complaint is sufficiently and by apt words made a part of such decree. The better practice, however, is to incorporate a precise description in the decree.</p> <p>The evidence in this case held to disclose no circumstances justifying the appointment of a receiver to take possession of the property and collect the income thereof.</p> <p>In partition suits the better practice i's to set forth, either in a separate decree' or in the same decree with the order of sale, an express statement of the findings of the court concerning the right of the parties to a partition and their respective interests or at least, in a cabe where the truth of the averments of the bill on. those subjects is admitted by the- answer, a recital of such agreement of the parties.</p> <p>Upon the evidence in this case, the Circuit Judge correctly found (a) that the property is incapable of partition in kind without great prejudice to the parties and (b) that a sale should be ordered.</p>

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

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

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

<p>The repeal of the provisions of the Federal Stamp Act that required stamps to he placed on promissory notes does not affect notes made before such repeal,' — the provisions that impose penalties, make instruments invalid or inadmissible as evidence until stamped and that provide how they shall be stamped afterwards if not stamped when made, not having been repealed.</p> <p>Instruments not stamped when made can be legally stamped after-wards only as prescribed by law, that is, by going before the Collector.</p> <p>A rehearing is denied.</p>

<p>Motion for Rehearing.</p>

(1) Property fronting on Hotel and Front streets, Honolulu, containing an area of 26,437 square feet. Returned at $75,000; assessed at $150,000 and reduced by the Tax Appeal Court to $129,554. (2) Property on Emma street, Honolulu, containing an area of 5.21 acres. Returned at $30,000; assessed at $75,000 and reduced by Táx Appeal Court to $50,000, Appeal by the Assessor.

<p>Appeal from Tax Appeal Court, First Taxation Division.</p> <p>I^and at Honuakaha, Honolulu, containing an area of 196,891 square feet. Returned at $2800; assessed at $35,000, and valued at $2800 by Tax Appeal Court. Appeal by the Assessor.</p>

(1) 4.23 acres, south side of Wilder Avenue, between Reeaumoku and Makiki streets, Honolulu, subject to' lease for 20 years from May 11, 1896, at annual rental of $400. Returned at $3200; assessed at $24,000. Valued by Tax Court at $3200. (2) 11,325 square feet, north comer of Ring and Alakea street?, Honolulu. Returned at $30,000; assessed at $40,000. A^alued by Tax Court at .$30,000. (3) 162.61 acres, Mokauea, Ralihi, Honolulu. Returned at $50,000; assessed at $300,000.

(1) 15,800 square feet, north comer Nnuanu and Pauahi streets, Honolulu. Returned at $12,000; assessed at $30,000. Reduced by the Tax Court to the amount of the return. (2) 45,990 square feet, Pauoa, Honolulu. Returned at $6000; assessed at $8500. Reduced by Tax Court to the amount of the return. Appeal by Assessor.

Lessee’s interest in land and buildings, known as Anthon Premises, situate oil Queen street, near Kaahumanu. Lease dated January 11, 1899; term, as returned, twenty years; rent-reserved, $150 per month; rental value, $250 per month. No value stated in return; assessed at $22,765. Valued by Tax Court at $8000. Appeal by Assessor.