Volume 16 — Hawaii Reports

<p>Judicial notice — street railway act of public nature.</p> <p>The court takes judicial notice of Chapter 69 of the Act of 1898, authorizing a street railway in Honolulu, but if this were not so the defendant’s admission that it was a corporation organized under the Act would dispense with proof of the Act.</p> <p>Right of way — due care required in its exercise.</p> <p>The right of way mentioned in Section 11 of the Act does not require that persons lawfully using the highway shall not pass in front of the defendant’s cars under any circumstances, nor authorize defendant’s cars to cross intersecting streets at times and under circumstances endangering the lives or property of persons attempting to cross in front of the cars. The defendant corporation’s duty requires it to exercise due and proper care to avoid injury to other persons.</p> <p>Contributory negligence peb se — not in walking along stepping board of car.</p> <p>It is not contributory negligence on the part of the plaintiff to step upon the outer platform of defendant’s car while stopping for passengers and to walk forward on the standing board to find room to sit in the car, it appearing that the car was full.</p> <p>Negligence — verdict cannot be set aside if negligence reasonably inferred from evidence.</p> <p>The evidence in the case is not such as to permit of but one reasonable inference concerning the defendant’s negligence; consequently a decision by the court, jury waived, in favor of the plaintiff cannot be set aside on the ground that there was no evidence on which defendant’s negligence might reasonably be inferred.</p> <p>Physical examination — must be applied for before trial, if right exists at all.</p> <p>Whether in a case like the present a defendant is entitled to obtain physical examination of the plaintiff is not required to be determined in this case, since if such right exists in any case the examination ought to be applied for before entering upon the trial.</p>

<p>Guardianship — jurisdiction to allow counsel fees.</p> <p>A Circuit Judge sitting in probate has jurisdiction to allow counsel fees to counsel, representing a ward, in an unsuccessful attempt to obtain revocation of an order of guardianship.</p> <p>Error.</p> <p>The amount of such allowance is not reviewable on writ of error, except in case of abuse of discretion by the Probate Judge.</p>

<p>Assumpsit — allegation of promise.</p> <p>It is sufficient in general assumpsit for goods sold and delivered to allege the facts from which a promise may be implied, without alleging the promise itself.</p> <p>Evidence — general objections to.</p> <p>A general objection to the admission of evidence on the ground that it is incompetent is as a rule insufficient if the evidence is admissible for any purpose or if the objection can be obviated.</p> <p>Promissory note — unstamped, recovery on original consideration.</p> <p>A note originally unstamped may be stamped afterwards in the manner prescribed by statute, and, if it is not stamped and was given in payment for goods sold and delivered and was not paid at maturity, a recovery may be had on the original consideration.</p> <p>Verdict — scintilla of evidence.</p> <p>A mere scintilla of evidence is insufficient to support a verdict.</p>

<p>Partnership — authority of partner to sign, allegation of.</p> <p>In an action on a note signed in a partnership name by one partner, it need not he alleged that the partner had authority to sign or that the partnership was a trading partnership. An allegation that the defendant partners made and delivered the note, etc., is sufficient.</p>

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

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

<p>Exceptions — no jurisdiction of questions not raised by.</p> <p>This Court has not jurisdiction of a motion to discharge the defendants on the ground presented here for the first time that the record shows no sentence passed in the court helow.</p> <p>Evidence, labcent — propriety of particular question under the circumstances,</p> <p>A witness for the prosecution having testified that he visited a locality at night to watch his cattle may properly testify “We had been missing cattle right along and proposed to go up that night and watch for cattle thieves.”</p> <p>Same.</p> <p>It is not prejudicial error to rule out on cross-examination of a witness for the prosecution the question whether one of the defendants had a short time before purchased certain cattle lor butchering purposes, the defendant himself afterwards having testified fully on the subject.</p> <p>Same.</p> <p>A witness having testified for the prosecution that he had found the hide of the stolen steer under C’s house the question asked on cross-examination whether there was “No attempt to hide it?” is properly ruled out.</p> <p>Indictment — averment of ownership of stolen property.</p> <p>The question of an alleged defect in an indictment for larceny of a steer averring the property to be in one The Estate of Wm. H. Rickard, deceased, ought to be raised by demurrer or motion in arrest and not for the first time in this Court on an exception that the verdict is contrary to law and the evidence; but the Court is of the opinion that the indictment is sufficient under the statute.</p>

<p>Writ of error — parties.</p> <p>All of the parties to an action must join in a 'writ of error, unless there has been a severance of interests.</p> <p>Judgment — must conform to findings.</p> <p>It is error to enter several judgments in ejectment where several parties are made defendants and one cause of action only is set out. Judgment must conform-to the verdict or findings.</p>

<p>Motion to dismiss.</p> <p>An oral motion to dismiss a complaint for not stating a cause 'of action having been argued in the Circuit Court and overruled and exception taken and allowed to such overruling, the case showing a formal demurrer for the same cause filed in the District Court from which, after a hearing upon the merits and judgment for the defendant, an appeal was taken to the Circuit Court, the motion is treated as a demurrer.</p> <p>Liabilitt bob causing another to bring a malicious suit.</p> <p>Whether the averment that the defendant assigned to one M. a judgment with the intention that M. should bring an action upon it is a sufficient averment to make the defendant responsible for an action brought by him, quaere; the complaint in this case disclosing no cause of action against the defendant if he had brought the action himself.</p> <p>Malicious pbosecution — abuse of process.</p> <p>An action for malicious prosecution of a civil suit imperatively requires a termination of the suit in favor of the defendant. In this case the defendant was alleged to have acquired by assignment a judgment against the plaintiff wihch he knew had been paid, partly in cash and the balance in a promissory note of the plaintiff’s husband upon which the defendant had obtained judgment. He assigned the former judgment to M. with the intention that M. sue upon it, which he did, recovering judgment, for which the plaintiff is now liable, and levying upon her personal property.</p> <p>Held, that this was neither an action for malicious prosecution of a civil suit, the suit having terminated in favor of its plaintiff; nor an action for malicious abuse of process, there having been no unlawful or unauthorized use of process and that the complaint sets forth no actionable wrong.</p>

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

<p> Scire facias, writ of. </p> <p>Application for a writ of scire facias on a judgment made November 20, 1868, in an action of ejectment: denied, it appearing by tbe application that the surviving defendant in the action claims by adverse possession.</p> <p>Plea or statute op limitations.</p> <p>A plea of the statute of limitations in a proceeding for a writ of scire facias is good in law if sustained by evidence.</p>

<p>Motion for Rehearing.</p>

<p>Contract — Guaranty—What constitutes absolute guaranty.</p> <p>A written instrument addressed to a firm of contractors, and signed by the respective agents of two corporations, which recites that the agents knowing that the directors of the corporation “have this day pledged the above companies to pay you $26,000 upon the opening of Pearl Harbor, by the completion by you, and the acceptance by the United States Government of a channel into said Pearl Harbor of 200 feet wide at the bottom and 30 feet deep, do hereby guarantee said payment as per resolutions passed, copies of which are in your possession,” is an absolute and independent undertaking on the part of those signing it to make the payment upon the contingency stated, and not a collateral contract of guaranty dependent for its validity upon the existence of another contract between the corporations and the contractors.</p> <p>Id — Id—acceptance of offer.</p> <p>The action of the contractors in such a case in entering into a contract for the dredging of Pearl Harbor, and their completion of the work to the satisfaction of the United States Government, which accepted the work, was sufficient acceptance of the guaranty contained in the written instrument signed by the defendants, and is sufficient to support a finding of an acceptance of the offer.</p> <p>Id — -Id—consideration—assumption of obligation.</p> <p>Where the contractors, after the receipt of such writing from the defendants, entered into a contract with the United States Government to dredge Pearl Harbor, relying upon the undertaking of the defendants to pay them the sum of $26,000 in addition to the amount of their bid, the entering into such contract with the United States Government constituted a valuable consideration for the promise of the defendants to pay them the $26,000 additional, regardless of whether or not the defendants would be benefited thereby.</p> <p>Id — Id—satisfaction loitU work.</p> <p>The fact that the resolution of the directors of one of the companies pledged the company to pay part of the $26,000, provided that the agents of the company “are satisfied that the opening of the channel to Pearl Harbor will open the same to commerce,” and that the contract of the defendants was to “guarantee said payment as per resolutions passed,” did not render it necessary, in order to make such agents liable on their contract, for the contractors to prove that the agents were satisfied after the work was completed, that it opened the harbor to commerce, as the action of the agents in signing the contract amounted to an unequivocal expression of satisfaction on their part that the opening of the channel, according to the specifications, would open the same to commerce.</p> <p>Id — Id—meaning of “guarantee.”</p> <p>While due weight should be given to the use of the word “guarantee” in an instrument, its use is not, by itself, conclusive as to the legal effect of the instrument; as it may be used to express an original undertaking, and a qualified guarantee may be expressed even without its use.</p> <p>Id — offer—notice of acceptance — evidence—actual knowledge.</p> <p>Notice of the acceptance of an offer need not be proven by direct testimony but may be inferred, and may come from any source. Knowledge that the offer has been accepted is equivalent to notice when notice is necessary.</p> <p>Id — consideration—what constitutes — evidence.</p> <p>Consideration for a contract involves the surrender of a legal right or the ineurranee of a legal obligation. It need not be expressed in the contract but may be shown by evidence aliunde.</p>

<p>Process — Amendment, seal and signature.</p> <p>Tlie copy of a summons served on the defendant may be amended, at least under the statute authorizing amendments of process, by adding the seal of the court if the copy already bears the signature of the clerlt.</p>

<p>Rehearing — denied, no palpable error shown.</p> <p>A rehearing should not be granted merely that the case may be presented again as at the first hearing in the hope that the court may be induced to come to a different conclusion, and in the absence of a showing of palpable error or grievous wrong.</p>

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

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

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

Exceptions from Circuit Court, First Circuit. STATEMENT OF CASE. The principal question presented by the plaintiffs’ bill of exceptions is whether a certificate of award of the Fire Claims Commission is the subject of garnishment.

<p>Wateb eights — ancient, prescriptive, appurtenant.</p> <p>Ancient water rights appurtenant to taro lands by reason of their use in connection with such lands, although such use was permissive before the issuance of Land Commission Awards, are often referred to as prescriptive rights, although the latter arise from adverse user; and they were intended to be included in “prescriptive rights” in the decisions in 9 Haw. 651 and 14 Haw. 50.</p> <p>Rehearing — denied.</p> <p>A motion for a rehearing based on the ground that the court erred in holding that “prescriptive rights” were intended in those decisions to include all appurtenant rights and that it otherwise failed to follow those decisions, is denied — the contentions not being sustained by the decisions.</p>

<p>Embezzlement — Chief clerk of department of public works.</p> <p>The defendant was appointed by the superintendent of public: works as chief clerk of the department of public works and clerk of the market, his duties as such clerk being prescribed by the-superintendent, amongst them being the charge of public money-received at the department, the salary for his office being appropriated by the legislature but no statute specifically authorized his-appointment or placed him in charge of public money: held that the defendant was within the class of persons designated in section. 158, P. L., viz.: “Whoever, being a collector, cashier, clerk or other person employed in the Government Treasury, or in any other department of the Government, is guilty of embezzlement of any-money, note, or other effects or property belonging to the Government.”</p> <p>Offense of embezzlement.</p> <p>Defendant’s receipt of $3,289.53 as chief clerk of the department of public works, receipted for by him as such clerk, his failure on demand to account for the money, offer to give his check for it, asking that the matter be kept quiet, his failure, when asked, to say what he had done with the money, and his concealment of it, not making any deposit of it in the official safe in the office, and failing to pay it into the treasury, constitute in law the offense of embezzlement as defined in Sec. 157, P. L.</p> <p>'Conversion — intent.</p> <p>The foregoing acts and conduct of the defendant are evidence of his fraudulent conversion or disposition of the money to his own use and benefit or the use and benefit of another than the owner or person entitled thereto under Sec. 157, P. L.</p> <p>Defendant’s suspension — evidence of.</p> <p>A witness for the prosecution testified that the acting superintendent of public works told the defendant that he suspended him. The objection made by the defendant to the evidence that “conversations could not be shown until proof of embezzlement of some specific sum” did not sufficiently raise the question as to the relevancy of the evidence of the suspension of the defendant.</p> <p>Evidence — of stub book, cash receipt book, and auxiliary book kept by clerks in office of superintendent of public works.</p> <p>A stub book of receipts, cash receipts, and auxiliary cash hook kept by clerks in the department of public works under the defendant’s supervision were admissible in evidence to show the method of transacting business in the office and that no entry was made in those books of the receipt of the money alleged to have been embezzled; the audit act of 1898 not requiring that the Auditor General establish a uniform system of keeping public accounts, the absence of evidence that he had done so does not take from these books their character as public records.</p> <p>'Cross-examination — of witness to defendant’s signature.</p> <p>Refusal of the court to allow a witness to the defendant’s signature to a receipt for money to be asked on cross-examination whether he had compared the writing with other writings of defendant held not to be prejudicial error, the defendant having substantially admitted the receipt of the money.</p>

<p>A bill of exceptions cannot be amended by incorporating therein entirely new exceptions after the time prescribed by statute for incorporating the exceptions in the bill, even though it may be amended so as to make exceptions previously incorporated therein, available.</p>

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

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

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

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

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

<p>Bill op exceptions — extension of time for.</p> <p>Under C. L. Sec. 1438, as amended by Laws of 1903, Act 32, Sec. 18, an extension of time in which to file a bill of exceptions must be allowed before the expiration of the twenty days allowed by statute or the extended time previously allowed by the judge under the statute.</p> <p>Id. — time for, in case of motion for new trial.</p> <p>The date when such twenty days begins in the case of an exception to a ruling on a motion for a new trial is the date of such ruling and not the date of the judgment entered in the case before the motion was made.</p> <p>Exception — to dismissal of motion for new trial.</p> <p>An exception lies to a dismissal, as distinguished from a denial or overruling, of a motion for a new trial. The remedy, if any, by mandamus, is not exclusive.</p> <p>Motion — for new trial proper in case of involuntary nonsuit.</p> <p>A motion for a new trial lies for errors committed during the trial, including an error in ordering a nonsuit, although the exceptions to the rulings alleged to be erroneous may be brought directly to this court by bill of exceptions, without first being made the basis of a motion for a new trial.</p> <p>Motion for new trial — notice of.</p> <p>G. L. Secs. 1462, 1463, do not make the right to move for a new trial on grounds other than that the verdict is contrary to the law and the evidence, conditional upon giving notice of the motion at the time of rendering the verdict or judgment.</p>

<p>Licenses — hack-drivers, knowledge of English language.</p> <p>Under a statute requiring an officer to give to an applicant a certificate that lie is a “competent driver,” if lie, the officer, so finds upon examination, he can not refuse such certificate on the ground of the applicant’s imperfect knowledge and understanding of the English language.</p> <p>Id.</p> <p>Under a statute authorizing an officer to make “rules regulating licensed drivers and licensed vehicles, and the fares to be charged by them,” the officer can not make a rule requiring the applicant for a license as a driver to “prove to the satisfaction of the competent authorities that he is sufficiently conversant with the English language for the conduct of his business.”</p>

<p>Iaee tenant — remainderman, stockholder’s right to purchase new shares at par.</p> <p>A stockholder’s right to purchase at par new shares issued by a corporation is not “income, profits or gain” of the shares held by him, but belongs to the principal as an incident of its ownership accruing to the remainderman and not to the life tenant or beneficiary, the new shares being issued for payment of corporation debts, following Carter v. Crehore, 12 Haw. 309.</p> <p>Trustee — liability of, for failure to exercise right of stockholder to buy •new shares at par, or to sell such purchase right.</p> <p>A trustee holding shares of the corporate stock of a corporation which has voted to issue new shares in payment of the corporate indebtedness, and to allow shareholders to take a pro rata number •of new shares at par, is not required to borrow money on trust securities or use uninvested funds for purchase of the new shares; hut is liable for the value of the rights to purchase them, which rights he released without pecuniary consideration to the life beneficiary, although he acted on legal advice and believing that the life beneficiary was entitled to the rights. Decision in Banning-Estate, 9 Haw. 453, followed.</p> <p>Master’s report — failure to except.</p> <p>Rule discussed that master’s report presumed correct unless obvious error in applying the law or serious mistake in considering the evidence. No occasion to apply the rule in this case.</p>

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

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

<p>An assessment, made by the assessor and sustained by the tax appeal court, of the lessors’ interest in certain land at more than the amount of eight years’ rental, is affirmed under the circumstances set forth in the opinion.</p>

<p>Circuit judges at chambers — independent jurisdiction in equity and probate matters, not impliedly repealed by Organic Act.</p> <p>The equity and probate jurisdiction of circuit judges at chambers existing under the Hawaiian constitution, which vested the judicial power in one supreme court and such inferior courts as the legislature might establish, was not impliedly repealed by the provision of the Organic Act which vested such power in one supreme court, circuit courts, and such inferior courts as the legislature might) establish. Although the powers of judges at chambers are usually limited to matters incidental or ancillary to causes pending in court, judges at chambers, so-called, have in Hawaii not only such incidental powers but also independent jurisdiction in equity and probate matters. But such independent jurisdiction is exercised by such judges as courts of record, and not privately or summarily, —the phrase “circuit judge at chambers” being in such case merely a method of describing such courts.</p> <p>'Construction — rules of, applied.</p> <p>In construing a doubtful provision of an act, other provisions, the act as a whole, and its reason and spirit, may be considered; also the circumstances under which it was adopted, the history which preceded it, and the consequences of proposed constructions; weight may be given to long continued, unquestioned and contemporaneous construction; if the provision is borrowed, the construction placed upon it previously may be considered; repeals by implication are not favored; expressio unius est exclusio alterius.</p>

<p>Pbactice — evidence—plea of general denial in an action by a corporation.</p> <p>In an action before a district magistrate by a corporation evidence that the plaintiff was. indebted in the sum claimed to- “Gonsalves & Company, Ltd.,” is evidence that the plaintiff firm is incorporated; but in a plea of general denial in such an action it is. unnecessary to- prove- the corporate capacity of the plaintiff.</p>

<p>Error to Circuit Court, Third Circuit.</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>After having left a team of gentle mules, hitched in a narrow place between the sidewalk and car tracks where they had been hitched on previous occasions and from where cars could be seen when several hundred yards away, the plaintiff unhitched the mules and took his seat on the wagon, when he saw defendant’s electric car coming about fifty feet away. He tightened the reins and put on the brake. When the car was abreast of the mules, they suddenly shied towards the car, in consequence of which one of them was struck and injured, so that it had to be killed. The car, although on a down grade, was then stopped in about sixty-five feet. Plaintiff and another witness testified that the car was going at an unusually rapid rate. In an action for damages, a nonsuit was ordered. Held,</p> <p>Street car accident — contributory negligence — proximate cause — rights of public and electric cars on streets.</p> <p>It was not as matter of law such contributory negligence as would preclude a recovery, to hitch the mules in a narrow place, or not to look to see if a car was approaching before unhitching or not to delay unhitching until the car had gone by. If such acts or omissions constituted negligence, that would not necessarily relieve tlie defendant of responsibility. Plaintiff and defendant bad equal rights to the use of the street, and, although defendant had superior rights to some extent in the use of the tracks, its-servants were bound to exercise due care to avoid injury to the plaintiff’s person or property. Though one places himself or his. property in a position of danger, another cannot wilfully or recklessly or carelessly injure him or it, even by doing what ordinarily may rightfully be done. The latter, upon being apprised of the danger, must avoid it if he can reasonably. If he does not, he is liable, his negligence in such case being the proximate, and the other’s negligence only the remote cause of the injury.</p> <p>Id. — negligence—proof—rate of speed.</p> <p>The burden of proof is on the plaintiff to show negligence on the, part of the defendant. It is not sufficient to show that the accident occurred, or to show facts as consistent with care and prudence as; with negligence. Nor is negligence shown when the circumstances, were such that the car might properly run at a usual or proper speed and was running without unusual sights or sounds, and there was only indefinite testimony that it was running at an “unusual speed” and definite testimony by plaintiff himself that, though on a down grade, it was stopped in about sixty-five feet, that there were no indications that the mules were frightened until the car was abreast of them, that the accident would not have happened but for their sudden shying and that there was no time to avoid a collision after they did shy.</p>

<p>Trespass de bonis asportatis — evidence of conversion — demand for property unidentified.</p> <p>The complaint averred that defendant “unlawfully and without the consent of plaintiff took into' its possession and converted to. its use” certain goods and chattels which the plaintiff in its evi-. dence showed were left on certain premises in its possession September 22, 1902, at the end of which day the premises were under' landlord and tenant’s process for forfeiture of lease placed in defendant’s possession. The following day plaintiff’s representatives, finding the premises locked and in charge of defendant’s, keepers, told a keeper that “they had some stuff there in the mill and we come to get it;” that it was “some stock of mouldings and different things there,” but “the keeper refused to open the gate or let us have it,” saying he was put there by Mr. High of the Enterprise Mill Company, and he gave instructions not to let us. take anything away.” One of the men acting for the plaintiff saw High, manager of the defendant corporation, enter the premises, and “sang out” to him, hut got no reply. Held: That it was not a sufficient demand to place the defendant in the position of a wrong-doer, or to justify a finding of the plaintiff’s conversion of these chattels; also that a nonsuit asked for lack of proof of demand ought to have been granted and instructions to have been given in conformity therewith.</p> <p>Damages in trespass de bonis — mitigation by offer to return chattels.</p> <p>An offer to return chattels for the taking and converting of which «lamages were claimed was admissible in evidence, the evidence showing no unlawful taking of the chattels.</p> <p>Evidence — opinion of value two years before inspecting chattels.</p> <p>Witnesses who have inspected the condition of a lot of wooden mouldings and of boards may properly state, their opinion of their value two years before they inspected them, and it was not necessary for them to know the precise kind of weather or exact piace of the exposure.</p>

<p>Motion for Order to Show Cause.</p>

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

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

<p>Xbase — no estoppel of lessor to claim rent 6y reason of refusal of two months’ rent accompanied hy promise of new lease.</p> <p>A lessor by declining rent for two months after the burning off of the buildings on the leased premises, there being about five years unexpired on the term of the lease, and by-telling the tenant that he would give him a new lease for a longer term, but without mentioning the rental or the length of the term, is not estopped from claiming the rental on the existing leases after offering a new lease to the tenant, which the tenant declined; nor is the lessor thereby estopped from denying that the leases had been surrendered.</p> <p>Id. — leasing premises to a third person subject to existing leases.</p> <p>The lessor, by granting a lease for fifty years to a third person subject to the existing leases, does not thereby grant to such third person the right to the rental for the' residue of the terms of the. prior leases.</p> <p>Id., evidence — unrecorded certificate that new lessee takes 'lease subject to former leases.</p> <p>The defendant having shown a lease of the premises demised to him made by the plaintiff to a third person for a term of fifty years,, the plaintiff may place in evidence an unrecorded certificate by the. new lessee that he took his lease subject to the former leases.</p> <p>In. — destruction of buildings on leased premises by fire ordered by the-board of health.</p> <p>The destruction of the buildings on the leased premises ordered by the board of health does not operate as a surrender of the lease,, the lessee not having taken steps to surrender it.</p>

<p>Street railway company — action by wife.</p> <p>An action may be maintained by a wife in her own name against a street railway company, the husband having paid her fare in her presence on her behalf, and she having ratified his act.</p> <p>Id.' — connecting line.</p> <p>The Hotel street line of the H. R. T. & L. Co. and the King street line of said company become connecting lines at the point where said Hotel street line enters King street on the north side of Nuuanu stream. A passenger on said King street line going toward Palama is entitled to a transfer to a King street car going toward Fort street.</p> <p>Id. — ejection of passengers — failure to produce ticket.</p> <p>A rule requiring a passenger to pay a fare or present a transfer in order to be entitled to ride upon a car of a street railway company is a reasonable rule. Where a passenger is entitled to a transfer, but has failed to obtain it through the fault of an agent or conductor of a street railway company, it is the duty of the passenger upon boarding a car upon a connecting line to pay the fare demanded by the conductor and seek redress against the company for a violation of the passenger’s right in refusing the transfer.</p> <p>Id. — damages.</p> <p>including damages for humiliation, mental suffering, injured feelings, etc.</p> <p>A passenger wrongfully refused a transfer to a connecting line by a street car company is entitled to compensatory damages,</p>

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

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

<p>Nonsuit — when some essential evidence excluded, and other essential evidence not offered.</p> <p>When a plaintiff has rested, and much evidence essential to his case has been struck out or excluded, but other essential evidence has not been offered, a nonsuit may be ordered and the striking out or exclusion of the essential evidence is harmless.</p> <p>'Corporation sole- — Bishop of Catholic Church, not a.</p> <p>The Bishop of the Roman Catholic Church in Hawaii is not a sole corporation and cannot take by succession from his predecessor in office. To sustain ejectment, he must show a privity of title or estate between himself and his predecessor, if he claims under his predecessor, whether he claims by paper title or adverse possession.</p>

<p>“Writ of error.</p> <p>An exception taken during tke trial is not necessary in order to support a writ of error.</p> <p>Assault — with intent to murder.</p> <p>On a charge of an assault with intent to murder the intent is an essential ingredient. It must he proved as is any other .fact. It may be proved by circumstantial evidence. Tbe jury may infer intent from the manner of the accused' in committing the assault, the nature of the weapon used and of the wound inflicted, the; absence of provocation or excuse, and the motive, if a criminal motive is shown.</p> <p>Interpreter.</p> <p>An objection to the competency of an interpreter or to the correctness of his interpretation does not raise a question of law.</p> <p>Evidence — rebuttal.</p> <p>The admission of evidence in rebuttal which might have been, offered in chief ¡S' within the discretion of the trial court. Evidence to disprove an alibi may be received in rebuttal, although, it tends to support the testimony in chief of the prosecution.</p>

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

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

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

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

This is an appeal by the tax assessor for' the island of Oahn from the decision of the tax appeal court in failing to find a valuation of six miles of cable lying below low water mark and all being within three miles from land. It was returned for nothing, the Cable Company claiming it was not legally assessable, and it was assessed at $42,800. The tax appeal court held that it was not legally taxable.

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

<p>Practice — conditional withdrawal of plea of not guilty in order to file plea in abatement.</p> <p>The defendant, January 19, had been arraigned and had pleaded not guilty to an indictment charging him with gross cheat. February 3 his attorney moved for leave to withdraw the plea in order "to file'a plea in abatement,'stipulating that if the plea in abatement -should be overruled he would be “ready immediately to go to trial upon the merits- of -this cause.” Upon the overruling of the plea' in abatement the case went to trial, defendant’s attorney malting no objection, and the case was tried on the theory that the defendant had pleaded not guilty. Held: That under the stipulation and in conformity with the plain understanding of the court and the parties the plea of not guilty was re-instated.</p> <p>Id. — instructions given for defendant with the remarle of the judge that he gave them “hut not as the law of this country.” '</p> <p>The defendant asked for four instructions, of which the trial judge remarked to the jury, “The defendant has asked me to giv9 you certain instructions which I shall give, but not as the law of this country.” Held: That the instructions which were given with this ungracious and inappropriate remark were inapplicable to the facts of the case and therefore ought not to have been given at all; but the jury might have inferred from the remark that the law was directly the other way and that a verdict of guilty would be proper based upon a broken promise to pay, and therefore that a new trial should be ordered.</p>

<p>Circuit court or judge — case pending before which.</p> <p>Under the circumstances sét forth in the opinion, it is held that a proceeding for the removal of a guardian was brought and pending before the circuit judge at chambers and not before the circuit court, although some of the papers were endorsed in the circuit court.</p> <p>Circuit judge — power to enjoin proceedings before another circuit judge.</p> <p>A circuit judge at chambers in probate is not absolutely without power to restrain a guardian in a guardianship matter pending before him from procuring a hearing on the merits of a suit for partition begun by the guardian on behalf of his ward before another circuit judge pending proceedings for the removal of the guardian before the judge issuing the restraining order. A writ of prohibition against further proceedings under the restraining order and to annul that order is denied.</p>

<p>Election between inconsistent remedies — materialman’s lien and replevin, in case of conditional sale.</p> <p>An election, of a remedy based on one theory, as, for example, in the case of a conditional sale, the enforcement of a materialman’s lien, which assumes that the property is in the defendant, estops the plaintiff from afterwards pursuing a different remedy based on an inconsistent theory, as, for example, an action of replevin, which assumes that the property is still in the plaintiff. An election is of rights rather than of remedies, though usually referred to as the latter, and, once made, is final, even though the action which evidences it is not carried to final judgment.</p> <p>Id. — distinguished from mistalce of remedies.</p> <p>There is no election where the first remedy is adopted through ignorance of the facts or under some circumstances through ignorance Of legal rights and would necessarily be ineffectual, but in this' case the court cannot say that the first remedy was adopted through such ignorance or that it would have been ineffectual.</p> <p>Matebialman’s lien — lienable and nonlienable items under entire contract.</p> <p>A materialman’s lien cannot be enforced for lienable items under an entire contract which covers nonlienable items also, but in this case the court holds that the prices of at least some of the lienable items is severable.</p>

<p>Error — return of service — garnishee summons — appearance of a corpo-ration by its manager’s cleric in answer to a garnishee process.</p> <p>A garnishee summons was issued by a district magistrate in a suit by H. H. & Co. v. the K. Y. Co. defendants and against Y. H. and twenty-one others named “No. 5 Gang’’ as garnishees. The officer’s return showed service on the manager of K. Y. Co. and on Y. H. and nine others of the twenty-two named as garnishees. No appearance was made for the defendants or the garnishees and judgment was made against them by default. The next day another garnishee summons was issued in an action on this judgment by the same plaintiff against the garnishees named in the first case as defendants and the Honokaa Sugar Co. as garnishee. The return of service on the defendants was as follows: “Served the within summons on Young Hin et als., as therein named as defendants by handing each of them a true and attested copy thereof and at the same time showing them the original at Honokaa this 16th day of April, 1904.” The return of service on the garnishee was: “Served the within summons on H. S. Comp. Ltd., therein named as garnishee by leaving with him a true and attested copy thereof at - this 16th day of April, 1904.” There was no appearance for the defendants at the hearing of the second suit. The H. S. Co., garnishee, filed a statement that it was indebted to the defendants in more than the amount sued for, signed “Honokaa Sugar Company, per K. S. Gjerdrum, manager, per C. H. Bragg” and sworn to by Bragg. Judgment was rendered for the plaintiffs in the second suit and the garnishee was ordered to pay the amount. There was nothing in the record of the second case showing that the judgment was based on the judgment in the first case. The garnishee summons in each of the above cases was upon the printed form commonly used. Held: (1) The return of service in each case was sufficient; (2) the plaintiffs’ complaint in the second ease was not defective in failing to aver their ownership of the judgment sued on; (3) there was no error in the magistrate taking judicial notice in the second case of his judgment in the previous case; (4) the rights of the plaintiffs in error not being injuriously affected by the unauthorized appearance (if any there was) of the H. S. Co., they could not assign such unauthorized appearance as error.</p>

<p>Courtesy — duration of.</p> <p>Under the former statute, under which the husband had an estate in the wife’s lands after her death until the children attained majority, the estate ceased as to each child’s portion upon that child’s attaining majority.</p> <p>Id. — tenant Toy, power to lease.</p> <p>Such tenant by courtesy had no authority to lease the land beyond, the age of majority of the children.</p> <p>Parent — power of, to lease child’s lands.</p> <p>A father as such or as natural guardian has no authority to lease his child’s land.</p> <p>Adverse possession — claim of, under lease, after lessor’s estate ceased.</p> <p>In order to sustain a defense of adverse possession, there must he shown not only possession but a claim of ownership-. A claim of a term of years is not sufficient. Heirs may recover from one who- claims solely under a lease made by a tenant by curtesy to extend beyond the estate by curtesy, even though the period prescribed by the statute of limitations has elapsed since the termination of the estate by curtesy. In such case the term of years is in recognition of and not contradictory to- the fee, and the lessee holds over permissively or by sufferance.</p>

<p>Contract for public works — compliance with terms of advertisement.</p> <p>The superintendent of public works advertised for proposals for the performance of certain public work, and required that each proposal must be accompanied by a certified check of 3 per cent, of the amount of the proposal, payable to the superintendent of public works as surety that if the proposal be accepted a contract would be entered into. W. filed a proposal and with it a bill of exchange upon a commercial house, certified by the latter, for the requisite amount payable to the order of the superintendent of public works.</p> <p>Held, within the discretion of the superintendent of public works to take the security tendered by W. as a substantial compliance with the terms of the advertisement calling for tenders.</p>

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

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

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

<p>Rehearing.</p> <p>A rehearing is granted upon a ground duly presented by counsel and not duly considered by the court.</p>

<p>Ejectment — evidence—marriage—estoppel—adverse possession.</p> <p>The administrator with the will annexed of the Estate of Kalakaua (from whom the plaintiff in the present case claimed title) retained counsel to defend an action of ejectment by one Oku against Cummins, Kalakaua’s lessee. Held: Evidence of the defense of the action at the instance of the administrator was inadmissible for the purpose of showing that Kapiolani, the devisee of Kalakaua, was estopped by the judgment in the case against Cummins.</p> <p>The plaintiff in this action introduced evidence that one Oku was married to one Kahoopuipui at Ewa in February, 1861, by Rev. A. Bishop, who gave them a certificate of marriage which was lost. The defendant offered in evidence a marriage record kept by the clergyman mentioned for a term of years including the year 1861, and which had no record of the marriage. Whether the record is admissible for the purpose of disproving the alleged marriage, quaere.</p> <p>Certain deeds executed by Kahoopuipui and one Keawe as husband and wife were properly admitted in evidence to rebut the disputed evidence of a ceremonial marriage of Kahoopuipui to another man.</p> <p>Conveyances and mortgages made by Kalakaua and Kapiolani and by tbe trustees of Kalakaua were improperly admitted as evidence to rebut defendant’s evidence of adverse possession, and on that ground a new trial is ordered.</p>

<p>Judge disqualified — from sitting on new trial by reason of having given previous judgment, may sit on motion for change of venue.</p> <p>Section 84 of the Organic Act, which provides that “no judge shall sit on an appeal, or new trial, in any case, in which he may have given a previous judgment,” does not prevent a circuit judge who had ordered a nonsuit, which was set aside by the supreme court, from entertaining a motion for a change of venue based on the ground that an impartial jury cannot be obtained in the circuit in which the action is spending.</p> <p>Mandamus — requiring judge of circuit to which venue has been changed to hear case.</p> <p>Mandamus lies to compel a judge of a circuit to which the venue has been changed to hear the case, after such judge has declined to hear it upon the erroneous view that the judge of the circuit in which, the action originated was disqualified, hy reason of having given a previous judgment in the case, from ordering a change of venue to another circuit the judge of which had ordered a further change of venue to the circuit in question.</p>

<p>Duty of circuit court stenographer, subject to direction of court, to furnish to attorney general without charge copy of transcript of evidence in law action instituted for use of Territory.</p>

<p>Rehearing — denied, the petition therefor being based on misapprehension of former decision.</p> <p>A rehearing is denied where the court based its former decision on the ground that the contract sued on was incomplete, and not, as contended, on the ground that it was not several as well as joint, or that, if it was only joint, a recovery could not be had against such of the parties thereto as had undertaken without due authority to bind all.</p> <p>Amendment — by appellate court, no error being found in judgment below.</p> <p>Although the statute permits amendments to be made after judgment and on appeal, and amendments should be allowed more freely when, as in this case, a new action would be barred by the statute of limitations, this court should not allow the plaintiff an amendment which would he ineffective without a new trial and then arbitrarily reverse the judgment helow and grant a new trial in order to make the amendment effective, when no error is found in the judgment helow.</p>

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

The court having held {ante, p. 377) that instructions numbered 7, 8 and 9, given at the defendants’ request, were erroneous and that therefore the verdict should be set aside as to defendant Rowland and a new trial ordered, and having further expressed its opinion that instructions numbered 13, 14 and 16, given at the defendants’ request, were erroneous, and having overruled the defendants’ contention that a conveyance made in 1875 by Metcalf, life tenant under a will to…

<p>Mortgage — reformation.</p> <p>Decree of circuit judge dismissing bill to reform mortgage affirmed.</p> <p>Mortgage — foreclosure sale — in lots or as a whole.</p> <p>Discretion of circuit judge to order a foreclosure sale of tbe mortgaged lands in lots, instead of as a whole, not interfered with. Cooper v. Island Realty Co., 16 Haw. 92, followed.</p>

<p>Spirituous liquors — furnished by an incorporated social club not licensed to sell to its members and guests ccmstitutes selling and violates statute imposing penalty for selling without license.</p> <p>Tbe Pacific Club, a Hawaiian corporation, by its own admissions furnished spirituous liguors to its members and guests wbopaid tbe club tberefor, tbis being done not for profit or as a business, but solely for mutual convenience. Held: Tbe transaction was a selling and subjects tbe club to tbe penalty provided by section 444 of the Penal Laws for selling spirituous liquors without a license as provided by statute.</p> <p>Id. — Organic Act, section 55.</p> <p>In view of the provision of the Organic Act, section 55, “Nor shall spirituous or intoxicating liquors be sold except under such regulations and restrictions as the territorial legislature shall provide,” a failure on the part of the legislature, if any there be, to provide for licenses for such clubs would not be a defense for selling without license as provided by law.</p>

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

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

<p>On September 15, 1904, F. appealed to circuit court from decision of district magistrate convicting him of assault and battery. Nolle prosequi was entered in circuit court November 1, 1904. On October 28, 1904, F. was indicted for malicious injury, on which indictment there was a mistrial entered on November 15, 1904. Case again set for trial November 28, 1904, and then postponed until December 1, 1904. Motion by prosecution for continuance from December 1, 1904, to December 9, 1904, was denied. Nolle prosequi entered as to this indictment. On December 30, 1904, F. again indicted for malicious injury and for assault and battery. On motions to quash and pleas in bar to said indictments, held:</p> <p>(1) After appeal from district magistrate effect of nolle prosequi in circuit court no bar to subsequent prosecution for same offense. King v. Manner, 3 Haw. 339, followed.</p> <p>(2) Speedy trial not denied.</p> <p>(3) Former jeopardy not shown.</p>

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

<p>Accounting — denied on the evidence.</p> <p>An accounting sought by a principal as to storage charges and rates of commissions charged by an agent is denied, — the evidence, particularly statements of accounts and letters when in conflict with oral testimony adduced by the principal, showing that no more had been charged than was proper.</p> <p>Id.- — when commissions paid to each of two alleged co-agents.</p> <p>One claiming to be sole agent charged commissions on orders secured by an alleged co-agent at the rate usually charged on orders sent through others than the agent. After he had ceased being agent, and had sent his statement of accounts to the- principal showing these charges, the principal paid the alleged co-agent certain special commissions on these orders. Held, the principal was not entitled to recover from the agent the commissions so charged by him.</p>

<p>Accounting — Mil for, dismissed on failure of plaintiff to account.</p> <p>One of two co-agents for the sale of goods upon commission who-procures orders and receives commissions while excluded from the agency by the other who conducts it alone under an honest belief that he is sole agent, cannot require the latter to account in equity without also accounting himself.</p> <p>He who seeks equhy must do equity — application of.</p> <p>Equity cannot act arbitrarily in the application of this maxim and generally will not as a condition of granting the plaintiff relief' require him to do what the defendant would not be entitled to as. plaintiff, but to the latter rule there are exceptions, of which the present case is one.</p>

<p>Evidence — order of proof.</p> <p>The order of proof rests largely in the discretion of the trial judge, not subject to review except in case of abuse, as, for instance, in admitting under certain circumstances oral evidence of the contents of a note before proof of its destruction.</p> <p>Peomissoey note — action at law on destroyed note without bond of indemnity.</p> <p>An action at law may be maintained on a note accidentally destroyed by fire while in the possession of the payee and unendorsed, and no bond of indemnity need be given in such case.</p> <p>Yerdict — may be directed for plaintiff, ioben.</p> <p>A verdict may be directed in favor of the plaintiff when he has clearly proved his case and the defendant has offered no evidence and made no attempt to contradict the plaintiff’s evidence.</p>

Statement of the case: The Pacific Guano & Fertilizer ■Company was a corporation organized for “exploiting the guano beds on Laysan island.” It is obtained from an expert an estimate of the probable available guano there as 84,000 to 85,000 tons and in 1894 paid $85,000 therefor.

Statement of the case: The property of the Ewa Plantation Company, Limited, was returned at $4,000,000, assessed at $5,448,000 and valued by the tax appeal court at $4,400,000, from which valuation the assessor appealed. The tax appeal court valued the property by taking the selling price of its stock (250,000 shares at $20), and deducting 20 per cent., as was done in the case of the Rapid Transit & Land Go. approved' in 15 Haw. 3, adding outstanding bonds for $400,000.

Statement of case: The case is thus stated in the tax-payer’s brief: “The loss in question in this case ($150,000) arose by reason of advances to the Hawaii Mill Co., Ltd. It was shown that the total indebtedness of this company to the taxpayer was about $381,000, that, in the taxation year and after a consultation among the directors of H. Hackfeld & Co., Ltd., and a careful examination of the assets of the company and the prospects for the payment of the whole amount…

Statement of tbe case: The assessor valued the tax-payer’s interest in the property in question at $240,000, the tax-payer claiming that its interest had no taxable value. The tax appeal court sustained the assessor’s valuation and the tax-payer appealed.

The assessor’s brief thus presents the case: “In this case the tax-payer claimed a loss in its income tax return of the sum of $18,500 under the head losses incurred in trade.’ The assessor allowed $1,000 and this appeal involves $17,500, which the tax appeal court allowed. The assessor appeals. “It appears that in 1878 Wilder’s Steamship Company built a steamer called the ‘Mokolii’ at a cost of $18,500.

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

<p>Steeet kailboad — passenger’s rights.</p> <p>After defendant accepted plaintiff as a passenger on a trailer attached to a motor car and took his fare and provided him with a seat, held, under the circumstances of this case, it had no right to detach the trailer from the motor car before plaintiff’s destination was reached and insist on plaintiff proceeding in the motor car unless it furnished to plaintiff as good accommodations in the motor car as he had had on the trailer.</p>

These are appeals by the tax assessor from the tax appeal court involving' the assessor’s valuation of plantation agency contracts. Some of the contracts are written, having definite terms, others are oral without definite date for termination.

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

<p>Street car accident — contributory negligence — proximate cause.</p> <p>One may be liable for injuring another even though the latter has. negligently placed himself in a position of danger, and even though it was possible for him, if he had chosen the right course, to extricate himself from such position in time to avoid injury, if it was apparent or ought to have been apparent to the former that the course actually pursued was not likely to be effectual, as, for example, when an electric car going at an ordinary or excessive speed ran into and killed a boy who was riding horseback ahead of the car in a narrow space between the track and one side of the street, and it was or ought to have been apparent to the motorman that there was danger of a collision owing to the fright and fractiousness of the horse and the probable failure of the boy to keep it away from the track on the narrow side, — which the boy was trying to do rather than cross over to the other and wider side of the street.</p> <p>Instructions — applicability.</p> <p>It is not error to refuse to give instructions that are inapplicable to the facts of the case even though they may be correct as abstract propositions or as applicable to other facts.</p> <p>Id. — refused—substantially covered by other instructions.</p> <p>It is not error to refuse requested instructions the substance of which is sufficiently covered by other instructions that are given.</p> <p>Evidence — what admissible on question of damages in action for death by wrongful act.</p> <p>In an action by a father for the death of his son, evidence is admissible, on the question of damages, tending to show the capability of the son to earn certain wages in the class of work in which his father is engaged, the kind and value of the services actually performed by the' son for his father before his death, and the size and character of the father’s family.</p> <p>Death by wrongful act — action for.</p> <p>An action may be maintained in this jurisdiction by a father for the death of his son caused by the negligence of another.</p> <p>Id.- — damages—not excessive.</p> <p>A verdict of $3000 in an action by a father for the death of his son is not so excessive as to require a new trial, when there was: evidence that the son was 15 years old, healthy and strong, that he performed services worth $25 a month to his father and which might be worth $35 a month to others, that he might earn $2 a day in the occupation in which his father was engaged, that the father had a wife and ten children, and that the funeral expenses were $2Í6.50.</p>

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

<p>Costs on appeal — attorneys' fees not allowed defendant when plaintiff’s judgment reduced one-fiflh.</p> <p>Attorneys’ fees in actions of assumpsit payable under Rev. L., Sec. 1892, by tbe losing party and consisting of percentages of tbe amount for wbicb judgment is obtained by tbe plaintiff or tbe amount sued for if judgment is obtained by tbe defendant, are not allowable to tbe defendant under Sec. 1893, wbicb provides, as an exception to tbe general rule, that costs shall be awarded to a defendant appellant if tbe amount recovered by tbe plaintiff in tbe court below is reduced one-fiftb or more on tbe appeal.</p>

Statement of the case: As set forth in the respondent’s brief, the petitioner sought by mandamus to “compel the superintendent of public works of the Territory of Hawaii to make a survey and estimate of certain dredging work, claimed to have been performed by petitioner under the provisions of a contract entered into by the petitioner and respondent, and to compel respondent to 'draw and approve a voucher for the payment of such estimate.

<p>Lands.</p> <p>Land in dispute held not included in Royal Patent Grant 1629.</p> <p>Ckown lands — adverse possession.</p> <p>Adverse possession of Crown Lands from 1873 to the present time cannot be shown.</p> <p>Evidence.</p> <p>Proceedings on which Land Commission Award and Royal Patent Grant issued held not admissible in this case.</p>

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

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

<p>The board of health ordered destroyed by fire as infected by plague all the buildings in a particular portion of a certain block. The fire department, which was requested to execute the order, first burned three buildings in the middle of the block outside of but near the condemned area. This fire spread accidentally not only to the condemned buildings but to others in the same block and from building to building and block to block until it reached the building covered by the policy of insurance upon which this action was brought. The policy excepted losses caused “by order of any civil authority.” There was evidence tending to show that the three outside buildings were burned for the purpose of making room for the firemen to work in or to prevent the spread of the fire .when the condemned buildings should be burned, or by mistake under the impression that these buildings were covered by the order of the board of health; also that the spread of the fire was due to a wind, claimed to be extraordinary, which arose after the fire was started. Held,</p> <p>Hebe insurance — loss caused by order of civil authority.</p> <p>The fire should be regarded as caused by the order of the board of health, though started in buildings outside of but near the condemned area, if it was so started for the purpose of preventing a spread of the fire from such area to other uncondemned buildings and was reasonably necessary or reasonably supposed to be necessary for that purpose, hut not if, though done in good faith, it was so started by mistake or merely to make room for convenience to work in when burning the condemned buildings. A new trial is ordered for erroneous instructions upon these points.</p> <p>Instructions — inapplicable.</p> <p>It is not error to refuse instructions that are inapplicable to the evidence, as, for instance, instructions based on the theory that che fire might have been started in the buildings outside the condemned area on the belief that those buildings would soon be condemned, there being no evidence tending to show that the fire was started on that belief.</p> <p>Evidence — minutes of board of health.</p> <p>A statement of certain proceedings of the board of health is admissible as minutes of a meeting of the board to show the resolution of the board condemning the buildings and ordering their destruction by fire, although such statement is not headed “minutes of a meeting of the board” as other minutes in the same volume are, and although the volume contains some other matter than minutes of meetings of the board, it appearing otherwise that such statement was the minutes of a meeting of the board.</p> <p>Such minutes are admissible also in the present case although the meeting was a special one called for a purpose other than that in question — whether they would be admissible or not in a proceeding between the board and one affected by its action. There was also evidence tending to show that all the members of the board were present at the meeting, in which case no question as to notice to absent members could arise.</p> <p>Burden oe proof — distinguished from burden of producing further evidence.</p> <p>The burden of proof rests upon the party who is required to ultimately establish his case by a preponderance of evidence in a civil case and does not shift. The burden or duty of going forward with the evidence may shift according as presumptions that have .to be met by the opposite party are raised by the evidence of either party, but all that is necessary to sustain such burden or duty is to introduce sufficient evidence to balance the evidence which it is intended to meet and so bring the evidence on both sides into equilibrium.</p>

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

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

<p>Code pleading, construction op — common count — theory of case — surplusage.</p> <p>Plaintiff’s complaint averred his .employment by defendant to obtain remission of duties assessed on three lots of goods imported by defendant from the Philippines; that defendant at the time of thé employment “promised and agreed to pay plaintiff for his services so much as the same should be reasonably worth according to the usual custom and standard for such services in similar cases prevailing at Honolulu, San Francisco and New York;” plaintiff’s performance “to defendant’s benefit and advantage in the sum of $17,871.08, the aggregate amount of said assessment;” that the reasonable value of the services “according to tne standard oi compensation in similar cases prevailing in Honolulu, Washington and New York was one-third of the amount saved to the importer,” being $5,957.02, in which sum the defendant is indebted to plaintiff.</p> <p>At the opening of plaintiff’s case, in answer to the defendant’s inquiry whether he claimed that “an express contract was entered into under the terms of which one-half was to be paid to the plaintiff,” plaintiff said, “We are sueing on a quantum meruit.' To the defendant’s further inquiry, “And counsel states that there was an express contract entered into?” answer was made, “That there was an express contract entered into at that time.” Held: The complaint evidently counts upon a special agreement of hiring for an agreed price, but applying the rule of favorable construction of Code pleadings and the rule that the theory of the pleading on which the case was tried will not be changed by the appellate court, if it may fairly be so construed, this is treated as a cause of action indebitatus assumpsit or quantum meruit, anu ¡the averment of the defendant’s agreement to pay is taken not as an express stipulation for price, but as averring the obligation implied by law to pay the plaintiff what he reasonably deserved for his service, the'words “according to the usual custom,” etc., being surplusage.</p> <p>Id., — evidence—express agreement in quantum meruit — liability of defendant on agreement made prior to its incorporation — novation of contract — value of service — unreasonable custom.</p> <p>The evidence showed an express agreement of hiring made with a third person in respect of the first and second lots of merchandise. The defendant was not incorporated by organization until after the importation of the second lot and dealt with the plaintiff concerning duties upon the third lot only. The third person or the firm of L. T. & Co. of which he was manager, sold all the merchandise to the defendant L. T. & Co., Ltd., 'the remitted duties and the goods when released from bond were delivered to it, and its manager told plaintiff he would be paid, but he charged too much. Held: A special agreement of hiring for what the plaintiff reasonably deserved does not preclude an action on the common count for quantum meruit after performance of tbe service.</p> <p>Upon the theory of novation the corporation, having taken over the assets and business of the incorporated firm of L. T. & Co., the facts justify the inference that it assumed the obligations of the firm in respect of the service performed concerning all of the duties, the plaintiff consenting thereto by bringing this action.</p> <p>Plaintiff’s evidence of his talk with L. T. (of defendant corporation) about reshipping cigars was properly admitted; and evidence of C. C. (president of defendant corporation) of dealing with plaintiff concerning a protest made prior to defendant’s incorporation was properly admitted, but not so of plaintiff’s evidence that in his opinion Congress would shortly enact a law (as it did) to authorize such duties, and that the law if enacted would include these goods held in bond, and therefore it was important promptly on hearing of a decision of the United States Supreme Court in a case pending when plaintiff undertook the service to get an order to the collector to release the goods. This evidence probably enhanced the value oí the plaintiff’s services in the opinion of the jury and was inadmissible.</p> <p>The verdict (of $3,500) was unsupported by evidence. The plaintiff’s evidence of a custom in Honolulu and San Francisco to pay one-half of the amount saved to the importer was not evidence of what the plaintiff deserved for his services, since such a custom, if it exists and applies in all cases regardless of the nature of the services, is unreasonable. Plaintiff when he undertook the service knew that all he could do was to file protests and that a case was then pending in the United States Supreme Court, the decision of which would determine the legality of all those duties.</p>

<p>Oveblease or grant of land subject to lease — rent goes with reversion, hut may he severed and reserved to lessor or grantor.</p> <p>An overlease as well as a grant of land subject to outstanding leases carries with it as an incident the right to the rent thereafter accruing, but the rent may be severed from the reversion and reserved to the lessor or grantor by a clear expression of intention to' that effect.</p> <p>In. — effect of words subject to” outstanding leases.</p> <p>A mere certificate by the overlessee that lie knew of the outstanding leases and took his lease subject to them would not operate to sever the rent from the reversion and reserve it to the lessor or to postpone the commencement of the overlease until the termination of the outstanding leases, although it would relieve the lessor from liability for a breach of the covenant of quiet enjoyment so far as the outstanding leases were concerned.</p> <p>Id. — agent for lessor and overlessee when acting for lessor against lessee not presumed to he acting for overlessee also.</p> <p>Ntor would .the mere fact that a third person was an agent for both the lessor and the overlessee and that he caused an action to be brought on behalf of the lessor for the rent under the outstanding leases show that the overlessee was not entitled to such rent.</p> <p>Id. — lessee may refuse to pay lessor rent though overlessee has not demanded it.</p> <p>Although the lessee would be -protected in paying rent to the lessor if he had no knowledge of the overlease, he would be justifided in refusing to pay him when he learned of the overlease, even though the overlessee had made no demand on him for the rent.</p>

<p>Action against Territory — petition.</p> <p>In an action against the Territory the petition is not demurrable for failing to show that petitioner, if a. foreign corporation, is entitled to sue the Territory, when the petition does not show that petitioner is a foreign corporation.</p> <p>Contract eor constructing public works.</p> <p>A petition claiming extras under a contract for the construction of public works, which does not show that the extras were furnished upon the written order of the superintendent of public works, aq required by the terms of .the contract, is bad on demurrer.</p> <p>Under a contract for the reconstruction of a warehouse involving the removal of an existing structure and providing that all old material was to be preserved and used in the construction of the new building unless unfit in the opinion of the superintendent of public works, a claim for the value of old material removed and appropriated by the Territory without alleging that such material was fit to he used in the new structure and that the contractor was forced to secure other material for the new building in place of that which was removed is demurrable.</p> <p>Under a contract to remove an existing structure and construct a new wharf and shed, which contract was held invalid, the Territory is not legally liable on an implied contract for the removal of the structure, such removal having been completed before the contract was declared invalid.</p>

<p>Petition roe Rehearing.</p>

<p>Obstruction of highway — proof.</p> <p>The trial judge dismissed the plaintiff’s bill to restrain the respondent from obstructing a highway by a fence cutting off a portion of the highway, regarding the evidence as not justifying him in saying that the fence was in the highway. Held: The burden being upon the complainant to prove that the enclosed space was part of the road, the decree dismissing the bill cannot be reversed without taking a different view of the accuracy of the plaintiff’s testimony than was taken by the judge who heard it. The decree is affirmed, but without prejudice.</p> <p>Id. — practice.</p> <p>Dismissing a bill on close of plaintiff’s case before defendant presents or rests his case is not correct practice in equity.</p>

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

<p>Exceptions, evidence — objections other than those made at trial, not considered on appeal.</p> <p>When the only objection made in the trial court to a question in regard to the plaintiff’s reputation was that the witness had not qualified to testify on that subject, other objections made to the form of the question for the first time on the appeal will not be considered.</p> <p>Id. — responsiveness of answer.</p> <p>In an action for malicious prosecution, it is not error to refuse to strike out as not responsive an answer that the plaintiff’s reputation was good before his arrest — to a general question as to what his reputation was.</p> <p>Id. — harmless error, facts otherwise proved.</p> <p>It is not reversible error to allow an improper question when the facts to prove which the question was asked are otherwise proved.</p> <p>Directing verdict — -at close of plaintiffs case, defendant not resting.</p> <p>It is not reversible error to refuse to direct a verdict for the defendant at the close of the plaintiff’s case, even though the plaintiff has not made out his case, unless the defendant rests.</p>

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

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

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

Original. This is an information for the disbarment, suspension or other punishmentw of J. Alfred Magoon, an attorney at law, for professional improprieties, malpractice and gross misconduct in substance as follows: (1) That on or about July 14, 1902, while acting as one of the attorneys for the plaintiffs in the case of H. E. Hitchcock, L. H. Dee, H. L. Evans and Charles J. Eishel on behalf of themselvec and all other stockholders in the Eamalo Sugar Company, Ltd., v. Erank…

<p>Submission on Agreed Facts.</p>

Action for damages for taking a bull and several cows and calves and selling them on execution. Appeal by plaintiff.

This is an application for a writ of prohibition directed to the district court of Honolulu to restrain said district court from further proceeding in the case of Irene B. Cornwell, plaintiff, v. John F. Colburn, defendant, a proceeding to obtain summary possession of land imder the landlord and tenant act.

This was an action of assumpsit on defendant’s promissory notes in the circuit court of the first circuit. Summons issued December 15, 1903; service of process December 16; answer filed January 6, 1904, being twenty-one days after service, no order of default having been then entered or moved for.

Exceptions from circuit court of the first circuit. The plaintiff brought assumpsit before the district magistrate of Honolulu upon the defendant’s promissory note. The magistrate rendered judgment for the plaintiff and the defendant appealed to the circuit court of the first circuit, ■ waiving jury, and the case stood on the calendar of the January, 1904, Term as number 463.

Assumpsnt by defendant, who was plaintiff below, upon the following instrument: “Honolulu Nov. 8th 1-8. On demand I promise to pay to Mrs. J. A. King or order the sum of one-hundred and sixty dollars ($160.00), payable monthly in advance. Beginning from the first- day of Jan. 1st 1899, at ten dollars ($10.00) monthly until the sum of one hundred and sixty dollars in full is paid.

This is an appeal by the taxpayer from a valuation by a majority of the tax appeal court of $125,000, the minority finding a valuation of $97,297.45. The return was $82,552.22 and the assessment was $125,000. This concern was assessed as an enterprise for profit. It appears that it dealt in jewelry, optical goods, etc. Its capital stock is $125,000, all paid up. It made a net profit in 1903 of $22,762.27, a little over 18 per cent.

Appeal by the assessor from tax appeal court, first taxation division. The assessor added to the taxpayer’s return of his income the sum of $1,500, being the sum allowed him by his employer, the Pacific Hardware & Steel Company, of San Francisco, for his expenses during the year, at the rate of $125 a month. The taxpayer claimed that this was no portion of his income and that .the assessor had no authority to add any item to his return.

Exceptions from circuit court, first circuit. Exceptions. A bill of exceptions, including exceptions to rulings taken during the course of a trial, and an exception to the overruling and motion for a new trial, cannot be dismissed in consequence of defects in connection with the motion for a new trial. As to exceptions taken during the trial, the bill of exceptions being perfected and allowed, will be retained.

Motion by L. A. Dickey as trustee for Grace D. Merrill for an order to the clerk to pay him $91.30, paid to the clerk by the high sheriff upon an execution in this case. The facts are as follows: The defendant herein, O. Lai Young, obtained a judgment against one Pomaikai in the district court of Koolaupoko, island of Oahu, which was assigned to the movant Dickey, and in execution upon which the deputy sheriff of that district collected the money now in question.

Land, buildings, power jdant, track, overhead line, rolling stock, electrical equipments, tools, supplies, etc., assessed as a whole as an enterprise for profit as of January 1, 1901. Returned at $682,-082.80; assessed at $1,109,200; assessment reduced by tax appeal court to $1,351,015.95. Appeal by taxpayer as to excess over $1,000,000.

Exceptions from circuit court, first circuit. Assumpsit by broker for commissions on sale of real estate. Verdict for $1000.