Volume 15 — Hawaii Reports

<p>“Full cash value” under the tax law means the value for purposes of sale, if the property is salable, and not either the value to the owner or the cost of reproduction.</p>

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

<p>An award of the Fire Claims Commission of $5,835 under claim 2703 as follows, viz: “without qualification, $505, subject to interest of claim 240, $2,680”, and similarly subject to other claims, the several claimants being interested as landlord and tenants of the same property, is not all payable to the holder of claim 2703.</p>

<p>A claimant is not entitled to a warrant for tiie entire amount upon a certificate from tire Fire Claims Commission that a certain amount is the correct award, when the certificate also states that that amount is correct “as per record of judgments” and that it was “made subject to the interest of” another claim.</p>

<p>A statement in an award made by the Fire Claims Commission to the owner of destroyed property, that the award was made subject to the subrogation of that claimant to an insurance company, giving the name of the company, the number of the policy and the amount, cannot be considered as an award of that amount to the company so as to entitle it as an awardee to a warrant therefor.</p>

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

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

<p>“Enterprise”, as used in the third paragraph of Section 820, O. L., means “the combined property which forms the basis of an enterprise”. Inter-Island. Steam Navigation Co. v. Shaw, 10 Haw. ‘624, followed.</p> <p>Under the term “combined property” as used in that section no property is made taxable which is- not included within the definitions of the terms “real property” and “personal property” set forth in Sections 818 and 819.</p> <p>The stocks and bonds of private corporations are not taxable under existing laws in this Territory.</p> <p>Sugar plantation agency contracts are “contracts” within the meaning of that word as used in Section 819, and taxable; but neither promissory notes’ nor accounts receivable are such “contracts”, nor are they taxable.</p> <p>'■Where by reason, of the skill, experience and integrity of the officers and servants of a corporation, its good will and the unity of ownership and the unity of use of its various items of property, the value of the tangible property of such corporation is increased, such increase of value is nevertheless the value of such tangible property and the latter is taxable under our statute at such increased value.</p> <p>'When the combined property forming the basis of an enterprise for profit consists in part of taxable and in part of non-taxable property and by reason of unity of ownership and unity of use and other intangible elements the aggregate value of all of such combined property is increased, such increment of value in so far as it is due to the non-taxable property is not taxable; and when the increment of value of the taxable property is due wholly to its unity of ownership and use with the non-taxable and not to the unity of ownership and use of its own parts, — when, in other words, the taxable property, considered independently of the nontaxable, is of no greater value when combined in use as an enterprise for profit than the total of its separate parts — such increment is not taxable.</p> <p>In ascertaining the aggregate value of all the property owned by a corporation the amount of the debts, if any, of the corporation should be added to the selling price of the shares of its capital stock.</p>

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

<p>A mortgagee lias sufficient title or interest after default by tbe mortgagor to enable bim to bring a statutory action to quiet title against third parties.</p> <p>A court of law cannot, in tbe absence of statute, allow fees, in tbe nature of counsel fees, to guardians ad litem to be paid by the opposite parties.</p>

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

<p>A lessee’s interest cannot be arbitrarily valued for purposes of taxation by fixing the value of tbe land without the lease and deducting therefrom eight times the annual rental supposed to be the value of the lessor’s interest.</p> <p>The value of a leasehold varies with the length of the term of the lease as well-as with the income derived therefrom.</p> <p>An assessment of unreturned property is held unappealable.</p>

<p>A document purporting to be a notice of appeal from a District Magistrate to a Circuit Court which is not signed by tlie appellant or some one on bis behalf, is not a notice of appeal within the meaning of the statute.</p>

<p>EXCEPTIONS FROM CIRCUIT COURT, FIFTH CIRCUIT.</p>

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

<p>EXCEPTIONS FROM CIRCUIT COURT, FOURTH CIRCUIT.</p>

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

<p>The Governor has not authority to suspend an officer, who, by the terms of Section 80 of the Organic Act, must he appointed and may be removed by the Governor by and with the advice and consent of the Senate and who is to hold for four years unless sooner removed.</p> <p>The provisions of the Audit Act (Laws of 1898, Act 39) relating to the suspension of the auditor were repealed by implication by the provisions of Section 80 of the Organic Act, which are not only inconsistent therewith but indicate an intention to cover the whole subject.</p>

<p>When the .boundaries of an ili, determined by a Commissioner of Boundaries, are set forth by the Commissioner in a general description and also in a particular description made and entered in the record immediately thereafter, the particular description must prevail over the general in case of a conflict.</p> <p>A call in a general description reading, “returning on the eastern bank of the river in all its windings and turnings to place of commencement”, does not necessarily place the line at the water’s edge but is capable of being understood as meaning that the line is on the bank at a reasonable distance from the water, and will be so construed where from the remainder of such description and from the particular description made in pursuance of the general and from a map accompanying the particular and made a part thereof, the intent is apparent that the line should so run on the bank following bearing's and distances given.</p>

<p>The evidence in the case held sufficient to support a finding that the possession of certain land hy the defendant and her predecessors in interest, even though permissive at its inception, was, for more than twenty years next preceding the commencement of the action, hostile and under such circumstances as to bring home to the true owner notice of its adverse character.</p>

<p>EXCEPTIONS FROM CIRCUIT COURT, FIFTH CIRCUIT.</p>

<p>Where a complainant asks for and is entitled to a decree of dismissal without prejudice, the fact that such dismissal is without prejudice should he made clearly to appear on the face of the decree.</p>

<p>EXCEPTIONS FROM CIRCUIT COURT, FIRST GROUP.</p>

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

<p>Exceptions taken to a judgment of a Circuit Court to this court do not suspend such judgment so far as to prevent the running of the six months’ limitation within which a writ of error may he issued under Section 1443, C.L.</p>

<p>A party who neglects to claim his right of challenge to the grand jury, before they retire, waives it, although he may be imprisoned at the time.</p> <p>The right, if any, of an accused to have the assistance of counsel at the impanelment of the grand jury, is waived if he neglects to claim it, even though imprisoned at the time.</p> <p>Where one who is detained in custody awaiting action by the grand jury does not notify the court that he is financially unable to employ counsel for his defense and does not request the assignment of counsel, it is not error for the court to fail to make such assignment prior to the arraignment.</p> <p>At the arraignment a deputy of the Attorney General may read the indictment.</p> <p>Upon a motion to discharge a defendant, made after plea of not guilty, on the ground that he has not been duly arraigned, one who, with the acquiescence of all concerned, acted at the term of court at which the indictment was presented as a deputy of the Attorney General must be presumed, in the absence on any showing to the contrary, to have been duly authorized to act in that capacity.</p> <p>The use of intoxicating liquors by members of the jury pending the trial, and before the final submission of the case, such liquor having been furnished by one of their own number, will not, in the absence of a showing that prejudice to the defendant resulted therefrom, vitiate the verdict.</p> <p>A court of record may, even at a subsequent term, cause amendments to be made to the minutes of its proceedings, kept by the clerk, to' the end that the same may conform to the actual facts and truth of the case.</p> <p>Verdict held not contrary to the evidence.</p>

<p>Directors stand towards the corporation in the relation of trustees to a cestui que trust and when they vote to themselves salaries or other compensation for services such salaries or other compensation cannot he allowed to stand unless shown to he fair and reasonable.</p>

<p>An attorney is not permitted to serve a new client against a former client in the same matter in which he represented his former client. If he does, the penalty will depend upon the circumstances. Ordinarily, it will be disbarment, but in this case it is made suspension for one year, in view of the circumstances — especially the looseness, of the attorney’s relations to his former client.</p> <p>It is gross misconduct — meriting disbarment — for an attorney to attempt, by appeals to friendship and by threats and otherwise, to induce an opposing attorney to betray his, the latter’s, client, an aged and weak-minded man, by advising him to consent to an unfair proposal of compromise and the taking of extortionate fees.</p>

<p>It is gross misconduct, meriting disbarment, for an attorney to impede and delay a settlement satisfactory to a client solely for tie purpose of securing an extortionate fee from some one, in a case brought by such client for the purpose of protecting an aged, weak-minded relative by placing him under guardianship, and to abuse the process of the courts in order to compel such weak-minded, aged man, who has a dread of litigation, to purchase his peace by paying a large sum of money even though it be for the benefit of a client, and to compel such aged man by means of threats and intimidations to pay a fee substantially larger than he was willing to pay.</p>

<p>An attorney should not be punished quasi-criminally in a proceeding for disbarment or suspension instituted by the Attorney General for charging his client a fee which the court deems excessive, even though the client is an aged man of weak mind and easily influenced, when it appears that the client is satisfied, that the attorney acted honestly and in good faith, and that he did not use threats or other improper methods to induce the payment of the fee, and that there is fair ground for a difference of opinion as to the reasonableness of the fee.</p>

<p>Under the provisions of the Organic Act and the County Act, there can he no new registration of voters for the first county election, in 1903. The registration list of voters for 1902 alone can he used.</p>

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

<p>The actions of de facto officers, as, for example, a Board of Medical Examiners, appointed by the Treasurer instead of by the Governor, cannot be questioned collaterally.</p> <p>The Treasurer cannot lawfully revoke licenses of physicians and surgeons issued by him on the recommendation of the Board of Health upon the report of the Board of Medical Examiners, merely because of a defect in the mode of appointment of the latter Board. Injunction lies to prevent such revocation by the Treasurer, there being no plain, adequate and complete remedy at law. Certiorari has not so wide a scope under our statute as at common law.</p>

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

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

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

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

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

<p>In an equity suit to quiet title, in -which the plaintiff relies on adverse possession, an objection that the title had not previously been determined at law, comes too late when made for the first time in this court and this court should not of its own motion dismiss the bill because of such alleged want of equity.</p>

<p>A. passenger on the ears of the Honolulu Rapid Transit and Land Company may not lawfully he charged more than five cents for a continuous ride from the corner of King and Keeaumoku Streets, along King, MeCully, Beretania and Alexander Streets to Wilder Avenue. Such a passenger is entitled, without the payment of an extra fare, to transfer from the King Street to the MeCully Street line and to receive a transfer ticket therefor.</p>

<p>A devisee and her husband formed a corporation and conveyed all their lands to it through a trustee and stock was issued to her, her .husband and her children, respectively. Held, that, assuming that ;:she took only a life interest and that her children took remainders :in fee by the devise, the latter were not entitled to have the conveyances set aside or to have the stock that was issued to the hus-Iband and wife transferred to a trustee to pay the income to the .‘husband and wife for her life and at her death to assign it to the .'plaintiffs, even though the husband and wife claimed to have con'veyed the fee, inasmuch as, for one reason, the husband and wife ; purported to convey only their interests, whatever they were.</p> <p>'The Supreme Court had previously decided- that the first devisee took the fee under the will, but the children asked to have that decision declared void as to them on the grounds, (1) that the court was «composed in part of two substitute members, although, as con- ' tended, the Constitution' allowed only one substitute, (2) that it rendered the decision on questions reserved by a Circuit Judge at ■chambers, although the statute allowed questions to be reserved - only by a Circuit Judge in court, (3) that it could not as a court ■of equity go on and construe the- will as to the quantity of estate • devised after construing it to the effect that a trust created by it had terminated, and (4) that the rights of the plaintiffs who were 'infants could not be waived by their next friend. Held, that the decision. was not absolutely void and could not be collaterally attacked even by the infants, and so could not be declared void as ■■ to them, even if equity could declare void or even enjoin the. enforeement of a decision that was absolutely void on its face...</p>

<p>An exception to a decision of a Circuit Court in a divorce suit on the-ground that it is contrary to law and the evidence and the weight of the evidence, is not well tafeen when the decision is supported" hy the evidence.</p> <p>It is not error for a trial court to sustain an objection to a question on-cross-examination on the ground that it is “incompetent, irrelevant and immaterial,” if the evidence is incompetent for any purpose..</p>

<p>A motion to quash a writ of error on the ground that no such suit or proceeding as that described in the writ is now or ever was pending in the court to which it is directed, being supported by the return of the clerk and not controverted, is granted and the writ dismissed.</p>

<p>A lessee covenanted to pay “all taxes -which may be imposed upon”' the demised premises during the term and two sublessees in turn covenanted that “all taxes upon the demised premises * * * together with the improvements and crops thereon shall be paid, by lessee without claim against the lessor.” Held, that the sub-lessees are liable to pay, in addition to the taxes on their own interest in the demised premises, not only the taxes on the interest therein of the original lessor but also the taxes on the inter- ■ est of the lessee.</p>

<p>In view of Secs. 454-455 of Act 31, Laws of 1903 (the County Act),, which provide for contests of county elections in general by candidates and in Circuit Courts, such contests cannot he instituted! by electors or in the Supreme Court.</p> <p>In.Secs. 465-466 of said Act, which make “all of the provisions of law”" applicable to the first county election, those words refer to provisions of law other than those contained in that Act itself, and not to Secs. 454-455 of that Act, which provide for contests of county elections .in general by candidates and in the Circuit Courts.</p> <p>Section 109 of the rules and regulations for holding elections was. repealed by the Organic Act in so far as it made the decisions of Inspectors of Elections as to the validity of ballots subject to. revision by the Supreme Courts.</p> <p>Section 8 and the following sections of Act 8 of the Laws of 1894-5r (C. L., Sec. 1092 et seq.) relating to. contests of elections in the Supreme Court, related to legislative elections alone and were repealed by the Organic Act.</p> <p>The provisions of law which formerly gave to the Supreme Court jurisdiction in election cases, having been repealed, were not made applicable to the first county election by the provision of the-County Act that “all of the provisions of law” should be so applicable.</p> <p>In construing a doubtful statute, the court may take into consideration the title of the statute, the context, other statutes in pari materia and the circumstances under which the statute was-enacted.</p>

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

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

<p>If tie elimination of a portion of an Act as void, would make the remainder, if allowed to stand, mean something different from what the Legislature intended by that remainder, the latter cannot stand.</p> <p>The provision in Section 52 of the Organic Act that appropriations shall be made biennially, does not prevent the Legislature from dividing the biennial period into two parts, namely, six months before and eighteen months after the inauguration of county government, for the purpose of making different appropriations for each, of those parts.</p>

<p>When the valid and invalid parts of an act are so mutually connected with or dependent on each other as to warrant a belief that the Legislature intended them as a whole and that, if the invalid parts could not be carried into effect, the Legislature would not pass the valid parts independently, the whole must fall.</p> <p>So much of Act 31, Laws of 1903, known as the County Act, as provides new features in Territorial taxation not incidental to county organization or government, is void under the provision of Section 45 of the Organic Act, “that each law shall embrace but one subject, which shall be expressed in its title.”</p> <p>Said void portion is such an essential feature as to vitiate the' whole Act.</p>

<p>APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT.</p>

<p>The rendering of a previous judgment held not to disqualify a judge, because such judgment was rendered in another case and upon-a question not involved in the case in which the objection of disqualification is presented.</p> <p>That a judge on three different occasions some years ago punished an attorney for contempt of court does not of itself show bias or-prejudice on the part of such judge against the attorney.</p> <p>Upon the facts stated in the opinion a judge of the court held not to be disqualified by reason of interest as alleged.</p> <p>A rehearing will not be granted on the ground that the Chief Justice of this Court, not called at the trial, is a necessary and material' witness, no intimation having been given at or before the trial that the proposed witness could give any testimony or as to what testimony, if any, he could give, if called, and no desire having been-expressed that he testify and no intimation being even now given as to what he could testify to; or, in a disbarment case, on the ground that the party supposed to be aggrieved by the misconduct of the attorney was not called by the Attorney General as a witness; or on the ground that a necessary and material witness was absent from the jurisdiction at the time of the trial, where no showing is made as to what his testimony would be, if called, and where, in submitting the case to the Court for decision, the party now asking for the rehearing expressly said that he would not call the witness but would close without his testimony.</p> <p>In a disbarment case no complaint by the party supposed to be aggrieved is necessary. An information may in such case be filed by the Attorney General.</p> <p>Ratification, if any, by a client or other party most interested, of misconduct of an attorney, does not bind the Court or affect its duty in a proceeding for disbarment.</p> <p>In a disbarment case, it is not a defense that at the time of the alleged misconduct the attorney was a District Magistrate.</p> <p>This Court may in a proper case disbar an attorney whose license was originally granted by the Supreme Court of the Republic of Hawaii, and who since the Organic Act took effect has not received a new license from this Court or taken the oath prescribed by Section 19 of the Organic Act.</p>

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

<p>A guardian who is an attorney at law may, in a proper case, be allowed extra compensation for professional services rendered for the benefit of the ward.</p> <p>Under the circumstances of this case, a fee of $1250 held excessive and $250 allowed as a reasonable fee.</p>

<p>The return in a case of substituted service of process should show on its face the existence of the conditions under which the statute permits such service. Extrinsic evidence is inadmissible to show this.</p> <p>A motion to amend a complaint by substituting- an alleged newly appointed trustee in the place of an alleged deceased trustee, one of five joint trustee defendants, is properly overruled, when no showing is made that the proposed substitute has been so appointed.</p> <p>A defect in the service oí summons apparent on the face of the return may he taken advantage of by motion to quash.</p> <p>At common law, service must he made on all of several joint trustee defendants.</p> <p>The statute (C. L., Sec. 1222), which permits service on less than all of joint or joint and several makers of notes, &c., does not apply to joint trustees in a statutory action at law to quiet title.</p> <p>A summons or Its service may he quashed for failure of the return to show a service on one of five joint trustee defendants, when no alias summons or service is asked for and no amendment of the return is made showing a good original service.</p>

<p>A rehearing will not he granted merely because the court in its former opinion did not set forth its reasoning upon a certain point now claimed to have been overlooked, provided the point was not in fact overlooked and the court’s conclusion thereon was in fact stated.</p>

<p>Appeal from Assessmeht of Stamp Tax.</p>

<p>The writ of ne exeat is not now available, in an action of assumpsit, to prevent a defendant from going away from the Territory or to compel him to give security for the payment of the judgment that may he recovered.</p> <p>The execution of the writ would subject the defendant to imprisonment for debt contrary to the provisions of the Organic Act.</p>

<p>Appeal eeom Ciecuit Judge, Eiest Ciecuit</p> <p>Eeeoe to Ciecuit Judge, Eiest Ciecuit.</p>

<p>An assessor of taxes may sue for unpaid taxes assessed by bis predecessor in office as well as for those assessed during bis incumbency.</p> <p>Assessment books or tax rolls are admissible in evidence in support of an assessor’s claim for delinquent taxes assessed prior to tbe plaintiff’s incumbency.</p> <p>An action of assumpsit for delinquent taxes may be brought by an assessor or deputy assessor in bis own name on behalf of tbe Territory of Hawaii. In the declaration and summons in this case it sufficiently appears that tbe action is so brought.</p>

<p>EXCEPTIONS PROM ClRCuiT C0URT, TlIIRD OlRCuiT.</p>

<p>EXCEPTIONS PROM CIROUIT ÜOURT, FoüRTH ClRCÜIT.</p>

<p>A trial judge cannot be said to have erred in refusing to determine the amount of temporary alimony to be paid by the husband, libellee, or in denying a motion for such alimony, where the only showing in support of such motion is an averment in the libel that the libellee “is possessed of large property besides enjoying a good salary” and the fact that shortly after the institution of the proceedings the libellee, in consideration of the libellant’s agreement to an early hearing on the merits, agreed by written stipulation to pay her the sum of ten dollars per week as temporary alimony.</p>

<p>EXCEPTIONS FROM ClRCuiT C0URT, ElRST ClRCuiT.</p>

<p>An appeal from a District Magistrate to this Court on points of law, alleging error in excluding testimony, the record being silent and not sustaining the point, presents no question of law for decision.</p>

<p>Appeal peom Distexot Court, HoNolulu.</p>

<p>In deciding tiie question whether there is sufficient evidence of undue influence in the making of a will to go to the jury, the evidence must he considered in the light most favorable to the contestants; the proponents must he considered as admitting not only the facts which the contestants’ evidence tends to establish hut also every inference which a jury might fairly draw from such evidence; in order to justify the direction of a verdict for the proponents, there must he such insufficiency of evidence in fact as to amount to insufficiency in law; there must he an absence of material and substantial evidence, which, if believed by the jury, would in law justify a verdict for the contestants; the question is not whether the evidence shows in the opinion of the court that the will was procured by undue influence but whether it was such that the jury could reasonably have so found.</p> <p>Although in order to set aside a will on the ground of undue influence, it must be proved that such influence operated at the very time of making the will, this may be shown by indirect or circumstantial evidence, but in such case the evidence must be of a very clear and convincing character.</p> <p>The subsequent execution of a codicil, when such influence is not operative, expressly confirming the will, makes it immaterial that the will itself was procured by undue influence, if such were the fact.</p> <p>Undue influence which will vitiate a will is distinguishable from mere influence and from mere bad influence. It must amount to fraud or coercion, or the substitution of another’s will for that of the testator.</p> <p>Where it was contended by the wife and children that the will and codicils of the husband and father were procured by the undue influence of a niece who had been brought up in the family as a daughter but where there was no direct evidence of even an attempt to influence the testator, whether duly or unduly, in the making of his will or codicils, and uncontradicted affirmative evidence that she was not present at the execution of the will or either codicil, and the uncontradicted evidence showed that the testator was of sound and strong mind, and the evidence, although it showed that there had been more or less friction in the family due in part at least to the presence and conduct of the niece and that the uncle and niece were very fond of each other and possibly that the latter had the disposition and opportunity to attempt to influence the former in the disposition of his property, yet did not show that she had a general controlling influence over him, and the will itself was not unnatural and its provisions were fully accounted for on other grounds than the undue influence of the niece, it was not error to direct a verdict for the proponents.</p> <p>A testator may make even what is sometimes called an unnatural will if he does so freely and with a sound mind, but in this case the will was not of that character.</p> <p>Mere suspicion or conjecture of undue influence is insufficient to justify nullifying an exercise of one’s right to dispose of his property by will.</p>

<p>'The “full cash value”, within the meaning of the tax statute, of a stock of goods, wares and merchandise is not necessarily the value represented by the inventory and carried on the books of the owner for business purposes. It may be less, and it may also be more.</p> <p>The "full cash value”, under the tax law, of a stock of goods, wares and merchandise, is what such goods would bring at a sale for cash (on the date of assessment), whether as a whole or in lots or separately, — by whatever of these methods the highest aggregate returns would be obtained, provided all the goods were sold on the same day.</p>

<p>EXCEPTIONS PROM ClRCuiT C0URT, FOURTH OIROUIT.</p>

<p>A notification to the defendant in a District Court summons that “upon default to attend at the time and place above mentioned judgment will be rendered against him ex parte by default,” which is the form set forth in C.L., §1210, is sufficient, although Sec. 1209 prescribes in general terms that the summons “shall contain a notification to the defendant that if he fails to attend at the time and place of trial designated in the writ, judgment will be rendered upon default according to the evidence taken ex parte.”</p> <p>A police officer is a constable within the meaning of our statutes and may serve process directed by a District Court to a constable.</p> <p>When summons, returnable at 1:30 p. m. of a certain day, is not served until that day, and the District Court grants a continuance, it will be presumed that the service was made before the order of continuance.</p> <p>A District Court summons may be served under our statutes and practice by showing the defendant the original and leaving a copy with him. It is unnecessary to read the original to him.</p> <p>An alias execution issued after the dismissal of an appeal may be good even though the original may have been bad because issued pending an appeal from a District Court.</p>

<p>In a deed of “all that piece of land situate at * 8 * , containing 15-100 of an acre and being the same described by metes and bounds” in a certain royal patent, the area of the land described in the patent being 1 5-100 acres, the description in the patent 11 controls.</p> <p>An allowance of undue latitude in tlie cross-examination of one of plaintiff’s witnesses, resulting- in bringing out matters of defense, is not reversible error, unless the plaintiff is prejudiced thereby.</p>

<p>Under the provision, in the income tax law of 1901 allowing deductions of “all losses actually sustained during the year incurred in trade or arising from losses by fire not covered by insurance, or losses otherwise actually incurred,” losses of capital used in business may he deducted, if they occur during the tax year, as, for example,, bank loans lost during the year though made prior thereto, notes given in payment for merchandise hut which become valueless during the year, etc.</p>

<p>Appeal eeom GiRcuxt Judge, Fiest Oiecuit.</p>

<p>An exception to the verdict of a jury, in a criminal case, on the ground that it is contrary to the law and the evidence and against the weight of the evidence and one to an order denying a motion for a new trial based on the same ground are overruled, the verdict being found ta he not contrary to the law and the evidence and not against the weight of the evidence.</p>

<p>Appeal eeom the Auditoe op the Teeeitoet.</p>

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

<p>■The mere omission to notice in the opinion a certain point submitted - is not good ground for a rehearing if the point was in fact considered by the court, particularly where its determination is necessarily involved in a determination of the other points which are referred to.</p> <p>A rehearing will not be granted on the ground that the petitioner failed to argue certain points on the hearing.</p> <p>The rule in equity as to transactions wth “expectant heirs” does not apply in a case where the grantor’s interest had become vested, accompanied with the right to immediate enjoyment, prior to the execution of the deed complained of.</p> <p>In equity eases, on appeal, while the findings of the circuit judge are given weight and under certain circumstances, especially on pure issues of fact, would be allowed to control, the Supreme Court nevertheless is authorized and has always exercised its right and duty to weigh the evidence and to make its own findings.</p>

<p>The Legislature failed at its regular session in 1903 to provide for the necessary expenses of the government for the succeeding biennial period. In its extra session immediately after, it passed complete appropriation bills for the first six months of the biennial period, and bills providing for a portion of the necessary expenses of the last eighteen months, but failed to provide for perhaps a half of the necessary expenses for those eighteen months on the supposition that those expenses would be borne by counties under an act v/hich turned out to be void. Held,</p> <p>That the expenses so unprovided for could be paid out of the last appropriation bills by the Treasurer with the advice of the Governor under section 54 of the Organic Act, and</p> <p>That “the last appropriation bills,” within the meaning of that section, were those of 1901 and not the six-months bills of 1903.</p>

<p>A granted to B for a term of years, at an annual rental of $8000, the right to enter upon three certain parcels of land, to dig tunnels and ditches, to construct dams, reservoirs, flumes, pipe-lines and electrical and other power works and to take all water found and which might thereafter he found on the lands named. The lessee used the land in accordance with the rights so granted. The lessor returned one of the tracts as exempt from taxation under C.L., §897, claiming that it was fenced and that cattle were excluded therefrom. Held, that such tract was not exempt, as “other use” was made of it.</p> <p>"Where the language of a memorándum of assessment is ambiguous, the construction placed upon it by the parties before the Tax Appeal Court and by that court itself will prevail.</p>

<p>A prescriptive right to water for a certain tract of kula land held nnfr to exist, as the use relied upon is shown by the evidence not to have been hostile or continuous for the statutory period.</p> <p>Water may be diverted by the owner from land entitled thereto to-other land of his, provided no injury is thereby done to- others. But where the overflow from certain taro land from which such diversion is sought to he made belongs by prescription to lower-lands adjoining, only as much water may be diverted as is consumed on the servient land itself in the cultivation of taro.</p> <p>Certain of the water rights of Palolo Valley defined.</p>

<p>An unrecorded chattel mortgage is not valid or binding to the detriment of third parties.</p> <p>The registry of a chattel mortgage not "entitled to be recorded is a. nullity.</p> <p>Actual knowledge of the existence of a chattel mortgage is not a substitute for recording.</p> <p>It is a prerequisite to the valid registry of a chattel mortgage that the-acknowledging officer endorse on such mortgage a certificate of the fact of acknowledgment.</p> <p>A certificate that on a day named “personally appeared before me Chan Choon and Sing Kee, known to me to be the persons described in, and who executed the foregoing instrument, who executed the-same freely and voluntarily and for the uses and purposes therein set forth”, does not state the fact of acknowledgment and is for that reason insufficient and invalid.</p> <p>Testimony of the acknowledging officer to the effect that the parties did in fact acknowledge before him the execution of the instrument can not cure the defect and is inadmissible to aid the certificate- and to support the validity of the registry and mortgage.</p>

<p>A was at the time of his death administrator with the will annexed of the estate of H. A petition for the appointment of B as “trustee" of the said estate “in the place and stead of” A, “lately deceased”, and an order of court, made in reference to such petition, that B he appointed “trustee” of said estate, construed to he respectively a petition and an order for the appointment of B as administrator with the will annexed of the said estate, and letters of administration issued in pursuance of such order held to be valid.</p> <p>The petitioners for such appointment, having appeared and submitted themselves to the jurisdiction of the court, and their successors in interest are hound by the proceedings had, even though it be assumed that there was no publication of notice to parties interested and that such publication was required by rule of court.</p> <p>JL resignation by B “as such trustee”, and the acceptance thereof held, under the circumstances of this case, to be a resignation of his office as administrator with the will annexed, and the appointment of S “as trustee to succeed” B “in the trust under the will of” H “deceased”, held to constitute S administrator with the will annexed of the said estate.</p>

<p>A petition for a writ of prohibition dismissed without prejudice, no necessity appearing, under circumstances stated, for the issuance of the writ .at the present time.</p>

<p>Attorney’s commissions and costs allowed by statute should not be included in determining whether the judgment rendered by a District Court is within the jurisdiction of the court;</p> <p>'The word “applicant” in the first proviso of Sec. 71 of Chapter 57, Laws of 1892, as amended by Sec. 17 of Act 32, Laws of 1903, should be read as though it were written “appellant.”</p> <p>'The requirement from an appellant of a bond conditioned for the prompt prosecution of the appeal and for the payment of the judgment, in order to secure a stay of execution in a District Court case involving more than $20 where the Magistrate finds that otherwise good cause is shown for the issuance of execution pending the appeal, does not unduly obstruct the right of trial by jury guaranteed by the Seventh Amendment to the Constitution and is not invalid on the ground of inequality.</p>

<p>On exceptions to the overruling of a challenge to the array of jurors and motion to quash the venire, the presumption is that the officers-complied with the law except in so far as the contrary appears; and grounds not made the basis of the challenge and motion in the lower court will not he considered.</p> <p>Where a venire for named persons selected under the statute was issued and also an open venire, with an oral order to summon the same persons, it is immaterial whether the latter was invalid or whether an open venire could issue at all under our statutes, if the venire under the statute was valid.</p> <p>To refuse to allow the clerk of the court to testify in support of the challenge and motion, if error, is harmless when the ^grounds of the challenge and motion are insufficient in law.</p> <p>From the establishment of Territorial government until the jury law of 1903 took effect, it was proper to obtain trial juries in the mode prescribed by the Hawaiian statutes as amended by the Organic Act. The Organic Act did not repeal so much of such statutes as to leave the rest inoperative.</p>

<p>APPEAL FROM DISTRICT COURT, HONOLULU.</p>

<p>In the absence of any showing to the contrary the presumption is that the grand jurors who found an indictment were good and lawful men and that not less than twelve concurred in the finding.</p> <p>A person accused of an offense has no right to appear before or to have witnesses heard in his behalf by the grand jury.</p> <p>A deputy of the attorney general for the Territory is an executive officer and may decide and act upon matters that come or are brought before him, within the meaning of Section 255 of the Penal Laws.</p> <p>An attempt by a promise of a gift of money to influence a deputy of the attorney general for the Territory, even before the intended commission of an offense, in his decision and action concerning the criminal prosecution of the offender, is punishable under §255 of the Penal Laws.</p> <p>A conviction based upon the uncorroborated testimony of an accomplice is legal.</p> <p>A person who has sworn falsely in a case but has not been convicted of perjury, is not thereby rendered incompetent as a witness in a subsequent case.</p>

<p>EXCEPTIONS EROM ClRCuiT O0UKT, ElRST ClROÜIT.</p>

<p>Sec. 17, Act 32, Laws of 1903, relating to executions pending appeals, applies to proceedings for summary possession as well as to1 other proceedings.</p> <p>Under that, section, execution cannot issue pending appeal unless upon upon good cause shown and an opportunity given to stay execution by filing a supersedeas bond.</p> <p>In passing upon the question of issuing an execution in such case, the-magistrate acts judicially, and certiorari lies in case he issues execution without allowing the defendant a hearing or an opportunity to file a supersedeas bond.</p>

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

<p>Appeal ebom Distbict Magistbate, HoNolulu.</p>

<p>EXCEPTIONS PROM ClRCuiT COURT, FlRST ClRCuiT.</p>

<p>The stamp duty, payable under Sec. 941, C.L., is assessed upon the deed of conveyance and the consideration therein expressed and not on the separate considerations for several contracts set out therein.</p> <p>The assessment is not on the contracts or necessarily on the considerations therefor.</p> <p>A rehearing is denied.</p>

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

<p>EXCEPTIONS FROM ClROuiT C0URT, ElRST C1RCUIT.</p>

<p>Money may lawfully be appropriated by tbe legislature for the benefit of the Queen’s Hospital, an institution conducted for the relief of indigent sick without distinction as to nationality, creed or otherwise.</p>

<p>Witnesses confined in jail by virtue of an order of arrest made by a circuit judge, prior to the trial in the circuit court, under author ity of Section 1367, C.L., are entitled to be discharged after the trial, on the indictment and cannot be restrained under such order pending the hearing of the defendant’s exceptions in this Court.</p>

<p>C.L., Sec. 1688, which in terms requires the defendant to file a bond •for rent to accrue in order that he may retain possession pending appeal from a judgment against him in a summary proceeding for possession, is repealed by implication by L., 1892, Ch. 57, as amended by L. 1903, Act 32.</p> <p>This court may on certiorari issue a writ of restitution but does not do so at present in this case because no notice of the issuance of the writ of certiorari was given to the plaintiff below and no motion for a writ of restitution was made or notice thereof given to the plaintiff below.</p>

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

<p>A rehearing should not be granted merely in order that the entire case may he presented again as at the first hearing in the hope that the court may he induced to come to a different conclusion.</p>

<p>The Board of Health ordered the Fire Department to destroy by fire, because of infection by bubonic plague, the buildings within a certain described area. The engineer of the department before burning the condemned buildings set fire to three buildings in clore proximity to but outside of the area named, from which three buildings the fire accidentally spread until it reached and destroyed property insured by the defendant. The policy provided that the-insurer should not be liable for “loss caused directly or indirectlv * * * by order of any civil authority.” Held, that if the burning of the three buildings was necessary or was reasonably believed to be necessary to prevent the spread of the fire from the condemned block to the remainder of the city and if the fire was set for that purpose, the order of the Board of Health was the proximate cause of the loss of the insured property, within the meaning of the exception, and the insurer is not liable .</p>

<p>In an equity suit for the foreclosure of an equitable lien and for the appointment of a receiver, objections that the lien averred extended to a part only of the property sold, that the averment of insolvency was insufficient and that the decree of sale was, for these reasons and otherwise for want of equity in the complainants’ case, beyond the jurisdiction of the court, will not avail when made for the first time in this court.</p>

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