Volume 17 — Hawaii Reports

<p>Approval of official bond, mandamus — powers and duties of approving officer.</p> <p>Although a circuit judge, in passing upon the bond of a county supervisor, may and should require the latter to show himself prima facie entitled to the office, he cannot go back of the proper credentials and pass upon the question of the validity of the nomination. If the supervisor shows himself prima facie entitled and the bond is sufficient, it is the duty of the judge to approve it, even though he is informed that quo warranto proceedings are to be brought to contest the applicant’s title on the ground that the nomination papers were fraudulent and forged.</p> <p>• The doctrine that a writ of mandamus is not always a matter of absolute right even to enforce a clear duty, and may be denied when to issue it and enforce the duty would aid in the perpetration of a fraud, does not apply where the facts are disputed and the fraud is merely a matter of suspicion or accusation. Mandamus is not a proper method of trying title to an office and the court should not, any more than the officer whose duty it is to pass on the bond, go back of the apparent title of the applicant and pass upon the validity of his nomination.</p> <p>The circuit judge should pass upon the sufficiency of the bond with reasonable promptness. He should not postpone action upon it until quo warranto proceedings, whether pending or impending, to test the title to the office shall terminate, and upon such postponement he may be compelled by mandamus to act.</p> <p>Makdamus — when appeal lies and when act judicial.</p> <p>Mandamus lies to compel a circuit judge to pass upon the sufficiency of a supervisor’s bond when he refuses to do so, even if passing upon the bond is an act of a judicial or discretionary nature and even if an appeal would lie from a disapproval of the bond.</p>

<p>Prohibition — circuit judge has jurisdiction in quo warranto even though grayer for relief may be too broad.</p> <p>A circuit judge is not without jurisdiction of a quo warranto proceeding merely because the petition prays for putting the relator in office as well as for ousting the respondent, even if the statute permits only a judgment of ouster.</p> <p>Quo Warranto — jurisdiction of circuit judges over election questions under county act.</p> <p>Under the county act (L. 1905, Act 39) the original jurisdiction of the supreme court in election contests is confined to certain classes of questions, and even if it is exclusive as to those it does not exclude jurisdiction of circuit judges over other questions in quo warranto proceedings.</p> <p>Counties are corporations — within meaning of quo warranto statute.</p> <p>Counties, which are naturally quasi corporations and by the county act are made bodies corporate and politic and permitted to sue and be sued in their corporate names, are corporation® within the meaning of the quo warranto statute, although they may not be within the meaning of all statutes.</p>

<p>Term op court — does not lapse by failure to open on day designated by statute when such day is legal holiday.</p> <p>Under the special provisions of the Rev. L., Secs. 1644, 1646, as amended by L. 1905, Acts 34, 37, it is held that the September term, 1905, of the circuit court of the first circuit did not lapse by reason of a failure to open the same until the day after the first Monday of September, although the statute prescribed that it should open on the first Monday, which, however, was a legal holiday.</p>

<p>Question Reserved by Circuit Judge, First Circuit.</p>

<p>Contract fob constructing public works.</p> <p>A petition claiming extras under a contract for the construction of public works and alleging that they were ordered by the Territory and the superintendent of public works, were not required by the contract, and were and became necessary in the judgment of the superintendent of public works by reason of unforeseen exigencies and errors which required more work to be done than called for, is demurrable.</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, the contractor does not acquire any right or title to any of the old material removed and appropriated by the Territory between the awarding and execution of the contract, and the Territory is not liable therefor unless said old material is fit to be used in the new structure.</p>

<p>Covenant — power of the governor to make.</p> <p>The plaintiffs having conveyed certain land to the Territory in exchange for other land and upon a covenant by the governor to cause buildings and fences on the land to be removed therefrom and placed on the other land in good condition within sixty days, claimed damages for delay in removing and for not leaving them in good condition: held, on demurrer, that no law of Hawaii authorized the covenant.</p>

<p>Question Reserved by Circuit Judge, Eirst Circuit.</p>

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

<p>Question Reserved from Circuit Judge of the First Circuit.</p>

<p>Mortgage foreclosure under power of sale — accounting not condition precedent.</p> <p>A mortgagee is not obliged to render an accounting to the mortgagor as a condition precedent to foreclosure under a power, even though the amount secured by the mortgage was left with him to be applied, and was so applied in part at least with the mortgagor’s consent, to the cost of improvements on the mortgaged premises.</p> <p>Id. — not barred, though claim- against administratrix barred.</p> <p>The right to foreclose may not be barred by the statute of limitations, though a claim upon the note against the administratrix is barred.</p> <p>Id. — not advertising by posters or selling in parcels.</p> <p>Ordinarily, unless required by the mortgage, it is not necessary to advertise a foreclosure by posters in addition to newspapers, or to sell in parcels a lot mortgaged as a whole.</p> <p>Id.- — in absence of statute.</p> <p>A foreclosure sale cannot be set aside if made in accordance with the provisions of the mortgage, even if the statute relating to foreclosures under powers of sale is unconstitutional in whole or in part.</p> <p>Id. — prior entry; equity jurisdiction to set aside sale.</p> <p>Assuming that, when a mortgage authorizes the mortgagee upon a breach to enter and foreclose, entry is a condition precedent to foreclosure and that if such entry is not made equity may set aside the foreclosure sale (Silva v. Lopez, 5 Haw. 262), it is held in this case that the bill does not clearly show that such entry was not made.</p>

<p>Deed — description of property.</p> <p>A deed granting “the whole of that piece of land mauka Uhao by name and a part of the piece makai here being the portion of the land remaining out of my sale to Samuela o Bartow” is sufficient under the circumstances of this case to convey the property in dispute.</p> <p>Id. — acknowledgment.</p> <p>As between the parties acknowledgment of a deed is not necessary.</p> <p>New trial.</p> <p>Rulings on questions during cross-examination of witnesses, on the allowance of amendments to pleadings and on the offering of evidence by the plaintiff after the defendant has rested, are largely in the discretion of the trial court and do not warrant a new trial unless such discretion is abused.</p>

<p>Estoppel — landlord—judgment against tenant.</p> <p>A landlord is not estopped as against the plaintiff by a judgment against his tenants in an action of ejectment against himself and them, by reason of his knowledge of the action and opportunity to defend them hut making no defense for them.</p> <p>Estoppel in pais — no basis for plaintiff’s claim in ejectment.</p> <p>A plaintiff in ejectment cannot establish his title on the basis that the defendant is estopped by his conduct from disputing it.</p> <p>Non-suitinq a cestui que trust wiio was co-plaintiee.</p> <p>A cestui que trust probably should not be joined as co-plaintiff, but as she presents no exception tocher non-suit, and it does not appear that any right of the other plaintiff was thereby affected, the question of its correctness is not properly presented.</p> <p>Evidence.</p> <p>The ruling in 16 Hawn. 435 upon the admissibility of the evidence of F. M. Hatch is applicable in this case. The record in the former ejectment case was properly admitted upon the question of adverse possession.</p> <p>Directed vebdict — power to review in absence of all the evidence.</p> <p>An exception to a direction of a verdict for the defendant may he passed on by this court, although the entire evidence is not incorporated in the bill of exceptions, if tbe trial judge in allowing tbe bill has certified that it contains all the evidence necessary for passing the exception.</p>

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

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

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

<p>Appeal prom District Magistrate, Honolulu.</p>

<p>Finding of fact — held supported ~by evidence.</p> <p>A finding of fact by the trial court jury waived that one purporting to execute a lease as agent of another was given authority go to do, is held supported by the evidence.</p> <p>Statute of frauds — error as to, held not prejudicial.</p> <p>An erroneous ruling by the trial court that an authority to an agent to make a lease must be in writing in order to be valid even, as between the parties to the lease, is held not prejudicial to defendant because, if such error had not been made, judgment would still have to be for the plaintiff and for as large or a larger sum.</p>

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

<p>Practice — final judgment on overruling exceptions.</p> <p>The defendant’s exceptions at the trial of an action of ejectment in the circuit court, having been overruled, the defendant’s motion that this court make a final judgment or order affirming the judgment in the circuit court is denied, there being no statutory authority therefor. The defendant’s desire to appeal to the United States Supreme Court from final judgments of this court does not authorize this court to assume the power.</p>

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

<p>Pleadings, construction op — corporation indorsing note for accommodation of maker — holder for value or without notice — inference from taking after maturity and dishonor a note so indorsed.</p> <p>In an action against the indorser by the holder of a note signed “Honolulu & Hawaiian Paper Co., Ltd., by Walter Gasset, Manager” and indorsed “Whitney & Marsh, Ltd., by H. T. Marsh, Secretary, H. T. Marsh, Fitzgerald Trunk Co., H. F. Fitzgerald,” the complaint averred in substance that the note was made and delivered to pay for certain goods on the credit of the indorsement; that the defendant indorsed the note for the purpose of procuring for the maker a credit with the drawee; that the maker of the note in consideration of the indorsement agreed to deliver to the defendant the said goods purchased by the maker from the drawee, and that at the date the note was delivered to the drawee the maker was insolvent and unable to obtain goods on credit, of all of which the defendant had knowledge; that after the note had matured and been dishonored the drawee indorsed and delivered it still unpaid to the plaintiff. Held, it is to be inferred that the plaintiff, having been permitted to amend his original complaint in order to show that the indorsement was not made for accommodation, has stated the facts as favorably to himself as the case permitted; that he has pleaded facts sufficient to show that the indorsement was made for accommodation but failed to aver facts showing that this was done in connection with the defendant’s business or required by the exigencies of that business. Therefore the amended complaint shows an indorsement given for the accommodation of the maker of the note.</p> <p>The plaintiff having taken the note after maturity and after it was dishonored is, in the absence of averment to the contrary, presumed to have taken it with notice that the indorsement was not in the usual course of business and was for the accommodation of the maker. The plaintiff therefore is in no better position than the drawee and the same defense which the defendant corporation could make to an action by the drawee can be made in this action. The facts that the indorsed note was given in payment of goods which the insolvent buyer could not obtain on its own credit and that the defendant indorsed the note for the purpose of procuring for the buyer credit with the seller, preclude an inference that the indorsement was made by the defendant in its ordinary course of business.</p> <p>Corporation — authority to issue accommodation paper — consideration for indorsement moving from maker of note — transaction outside of scope of corporate business — defense of illegality.</p> <p>An indorsement by a corporation may or may not be valid according to whether it appears that the collateral transaction involved in the maker’s promise of benefit to the indorser is within the scope of the indorser’s corporate powers. Consent of all the stockholders cannot add to powers of a corporation given or authorized by statute. A corporation cannot indorse for accommodation of another paper in which it is not interested. A corporation may set up the defense of illegality of its indorsement in an action on its ultra vires indorsement brought by one who is not a bona fide holder for value without notice.</p>

<p>Mortgage foreclosure — name of mortgagee.</p> <p>Where the name of the mortgagee in a note and mortgage was-through a mistake erroneously described as the Hawaiian Evangelical Association instead of the Board of the Hawaiian Evangelical Association,- a corporation, the party intended and for whose benefit the note and mortgage were executed and delivered, and there was in existence a voluntary unincorporated association-known as the Hawaiian Evangelical Association, a bill to foreclose said mortgage may be brought by the assignee of the Board of the Hawaiian Evangelical Association, a corporation, without first reforming the note and mortgage and witliout joining the voluntary unincorporated association as a party.</p> <p>Id. — variance between mortgage and decree in description of the premises.</p> <p>An objection that there was a variance between the description of the premises in the mortgage and the decree is not considered in the absence of a transcript showing the testimony on that point.</p>

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

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

<p>Exteas under contract — amending petition.</p> <p>Demurrers to a petition and amended petition for extras under a contract for a wliarf Raving been sustained because tbe requirement that orders for extras should be in writing was not shown to have been complied with or waived, leave to file a second amended petition so as to show that most of the items in question were not extras but were made necessary by the contract, specifications and plans, but were not contemplated by the parties owing to an alleged error in the plan’s, and so as to show that other items were ordered or approved in writing, is denied because, as to most of tbe items, tbe plans, which are made part of tbe petition, do not support tbe allegation of error, and because, as to tbe minor items, assuming that they are allowable, tbe proposed amended petition as a whole should be in different form.</p>

<p>County act — power of ■sheriff to appoint police officer — approval of such appointments by board of supervisors or high sheriff.</p> <p>By Sec. 67, chapter 15 of Act 39, Laws of 1905, known as the County Act, the sheriff of the county of Hawaii may legally appoint police officers in that county. Neither Sec. 110a of the Act providing that “Any county officer may, with the approval of the . board of supervisors, employ such clerks and other assistants as may be necessary to aid him in the performance of the duties of his office,” nor paragraph 2 of Sec. 62 of the Act, which gives the board of supervisors power “to appoint such subordinate officers as they may deem necessary for the public service,” refers to appointments of police officers. Such appointments made by the sheriff are not required to be approved by the board of supervisors or by the high sheriff.</p>

<p>Countt act — auditor—warrant.</p> <p>The county auditor may refuse to draw a warrant on the treasurer for an invalid claim against the county although such claim has been examined, allowed and ordered paid by the board of supervisors.</p> <p>Id. — appointment of sheriff’s clerk.</p> <p>Under the county act the board of supervisors has no power to appoint a sheriff’s clerk, that power being in the sheriff subject to the approval of the board of supervisors.</p>

<p>-' Income tax — corporation assessable in what taxation division.</p> <p>Under the income tax law which requires each corporation to make a return in “its taxation division” and also all persons and «‘Corporations to make their returns in the taxation division in which they "reside, locate or do business,” corporations as well as '■ipersons should in general make their returns in the division in " which they reside, if they reside in the Territory, and in the «¿(division in «which they do business, if they reside without the Territory; not in the division in which their property is situated, if that is a different division.</p> <p>•Corporation residence — where, for purposes of taxation.</p> <p>The residence of a Hawaiian corporation is necessarily in the Territory of Hawaii — the place of its creation. As between different taxation divisions within the Territory, its residence is in that in which it holds its stockholders’ and directors’ meetings, keeps its stock books, directs the management of its business, conducts its general financial transactions and performs its corporate functions, especially if the place of its principal office is declared by its charter or articles to be in that division; not in that in which most of its property is situated and in which it conducts most of its business so far as actual production is concerned and keeps most of its books of original entry, if that is a different division. The mere fact that its directors’ meetings also are held in the latter division is not sufficient to make that its residence; nor is the fact that most of its stock is owned by one person who resides in the latter division and manages the property much as he pleases sufficient. If its meetings are held and its general corporate functions performed without the Territory and its charter -does not designate its principal office the latter division is its place of taxation — as being either its residence or its place of business in the Territory.</p> <p>Mandamus — denied, when no legal duty.</p> <p>There being no legal duty on the part of the assessor of one division to send tax returns filed with him to the assessor of another division where similar returns should have been filed, mandamus to compel him to do so is denied.</p> <p>'Id — denied, when useless.</p> <p>Mandamus to compel the assessor of the division in which a corporation should have made its return, to assess and collect Us income tax, is denied, it appearing that it had no assessable income during the year in question.</p> <p>Id. — parties.</p> <p>When a statute requires one half of the income taxes collected by the Territory to be turned over to the county in which they are collected, and the assessors of two taxation divisions, covering two counties respectively, act on the theory that certain corporations should be assessed in one of those divisions, and mandamus is brought to compel the assessor of the other division to make such assessments, the county in the first division is not a necessary party.</p>

<p>Ejectment — practice—question of legality of substitution of executor as plaintiff by acquiescence of defendant not raised at trial, not open on general exception to decision.</p> <p>At the trial suggestion was filed by one of the attorneys in plaintiff’s case that she had died, that her will was probated and that he, as executor, had letters testamentary and asked to be substituted as plaintiff. The defendant’s attorneys saying they made no objection the court allowed the executor to be entered as plaintiff. The defendant, in arguing the exceptions, urged that the question that the executor was not a proper plaintiff was presented by the exception to the decision as “contrary to the law and the evidence and the weight of the evidence.” Held, no ruling upon this question having been made at the trial and no question of law relating to it having arisen there, in view of defendant’s acquiescence in the substitution of the executor as plaintiff, although in law not entitled to possession of land, his right in this judgment cannot properly be questioned by the general exception to the decision, the defendant being regarded as having waived objections to the plaintiff’s capacity.</p> <p>id. — adverse possession as against a minor — exceptions to rulings denying nonsuit and excluding evidence which afterwards went in or was immaterial.</p> <p>The defendant moved for a nonsuit on the ground that the plaintiff’s evidence showed adverse possession for ten years. The exception to refusing the nonsuit is not sustained since the statute would not run against the minor child living when as the defendant clamed adverse possession began, and also since evidence of adverse possession of a house on the premises would not include the entire parcel in which were six taro patches unless possession was taken under a paper title or colorable claim. . Exceptions to excluding or striking out evidence which afterwards went in are overruled because no harm was done. Exceptions to ruling out certain other evidence, being a foreclosure affidavit and mortgage and that the widow said when possession of the house was . taken, are overruled because the evidence was immaterial. Evidence of attempts to prove that a certain person was an officer of a company which bought the land and letters to that company and to the defendant demanding possession do not require discussion. Evidence properly allowed in rebuttal.</p>

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

<p>Infamous punishment — unlawfully imposed by jailer on misdemeanant.</p> <p>Compelling a prisoner to go through the public streets and labor on the public parks in public view in jail uniform, though not striped, is infamous punishment, and cannot lawfully be imposed •on one convicted of a misdemeanor, even on the pretense that it is for the health as distinguished from the punishment of the prisoner; but the fact that such misdemeanant when held under a lawful sentence is subjected to such punishment by the jailer, without ■ authority of law, does not entitle him to a discharge on habeas •corpus, at least when the unlawful punishment was inflicted only for a brief period and had ceased sometime prior to the application for the writ.</p>

<p>Equity — quieting title.</p> <p>Equity has no jurisdiction to quiet title by removing a cloud where there is no cloud alleged.</p> <p>Id.</p> <p>In a suit in equity to quiet title to land where the bill shows that defendant had an interest in the land in common with the plaintiffs and the answer denies that plaintiffs have any title, a decree based on the pleadings without any evidence having been taken that plaintiffs are the owners of the land and that defendant has no estate,’right, title or interest in the land cannot be sustained.</p>

<p>Ordinances — legislature may delegate to county supervisors power to malee.</p> <p>The legislature may delegate to county boards of supervisors power to make police ordinances of a local nature, such as ordinances relating to gambling.</p> <p>Id. — construction of statute authorizing.</p> <p>Under an act authorizing county boards of supervisors “to regulate by ordinance * . * * local police * * * and other regulations * * * and affix a penalty for the violation of such ordinances,” held: “regulate” should be construed as “make”; the act authorizes county boards of supervisors but not the people of a county to make ordinances against gambling, but not to impose imprisonment as a penalty, nor to make a violation a misdemeanor, nor to confer jurisdiction on district magistrates.</p> <p>Id. — enacting clause.</p> <p>An ordinance need not contain an enacting clause; it may be valid if in fact made by the board of supervisors though purporting in its enacting clause to have been made by the people of a county.</p> <p>Id. — prosecutions under, are criminal in nature.</p> <p>Prosecutions for violations of county ordinances are criminal rather than civil in their nature, as shown by various provisions of the county act.</p> <p>Id. — jurisdiction of offenses against.</p> <p>In the absence of statutory provision as to what courts shall have jurisdiction of offenses against county ordinances, the appropriate Territorial courts have jurisdiction according to the general laws defining tbeir jurisdiction over offenses against the Territorial laws. The provision of the county act that the county attorney shall be the public prosecutor for the .county and attend the circuit court in and for the county and conduct all prosecutions therein for offenses against the laws of the Territory and the ordinances of the board of supervisors of the county, is held, especially in view of other provisions, not to give circuit courts exclusive jurisdiction of offenses against ordinances.</p> <p>1!d. — prosecution for offenses against, should he in name of Territory.</p> <p>Prosecutions for offenses against county ordinances should "be in the name of the Territory.</p> <p>Mandamus — requiring magistrate to take jurisdiction.</p> <p>The district magistrate having declined to take jurisdiction of a complaint for a violation of a county ordinance, and being held to have such jurisdiction, is required to take jurisdiction, but is not required to act in a particular manner.</p>

<p>County Act — warrants on county treasurer issued to chairman of road hoard in payment of hills' approved by board of supervisors.</p> <p>The board of supervisors of the county of Oahu having approved certain elainis of certain laborers who had been employed in road work by the chairman of a road board, and who had given him their receipted bills in the form of a payroll, held: The auditor properly issued to him a warrant on the county treasurer for payment of the claims.</p> <p>The county treasurer has no power to decline to pay a warrant issued by the county auditor upon a claim which has been legally examined, allowed and ordered paid by the board of supervisors.</p>

<p>.Judge not disqualified — having been nominally of counsel.</p> <p>A justice of this court is not disqualified to sit in a case by reason of having been counsel of record as a member of a partnership which had been retained in the case, he having taken no •active.part in the case nor advised upon the questions in issue, and there being no statutory provision disqualifying him by reason -of having been of counsel.</p>

<p>Extras — when not ordered in writing as required Try contract — modification of proposal not accepted.</p> <p>Under a contract providing that extras shall not he paid for unless ordered in writing, no recovery can he had for an extra even when ordered in writing, if the order was made on the claim that the extra work was required by the contract and on the condition that it should not be paid for as an extra, notwithstanding the reply of the contractor that the work would be done subject to the right to payment if there was such right, the proposed modification not having been accepted by the party making the order.</p> <p>Contractor- — when not liadle for wages of inspector employed dy other party to contract.</p> <p>A contractor is not liable as for labor furnished to him, for the wages of an inspector voluntarily employed by the other party to the contract for Ms own benefit even after the time when the contractor should have completed the work. The liability, if any, would be for damages for breach of contract.</p>

<p>Appeal prom District Court, Ewa.</p>

<p>Title of act — not too broad or too narrow.</p> <p>The provision of the Organic Act that “each law shall embrace but one subject, which shall be expressed in its title,” should be liberally construed. The title may be broader than the act, provided it is not delusive; the act may cover different matters, provided they have a natural connection and are fairly embraced in -one subject. A provision limiting civil jury trials, unless by consent, to the first sixty days of each term in the first circuit, may .properly be included in an act purporting in its title to amend a ■certain section of the Revisea Laws “relating to terms of the circuit courts,” the other provisions of which act relate to the length, adjournment and extension of the terms in the several circuits.</p>

<p>Question reserved by Circuit Court, First Circuit.</p>

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

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

<p>Pleading — motion to strike out portions of plaintiffs’ petition not required in action at low.</p> <p>The plaintiffs declaring for breach of an agreement, the defendant moved to strike out portions of their petition as irrelevant: Held, although the petition is in the form of code pleading the defendant is not required to admit or deny each averment, but under our practice denies generally, pleads a special defense or demurs. The motion is not required and is denied.</p>

<p>Assessment — of land under special conditions.</p> <p>The owners cultivated at a loss certain cane land, the crop from which was milled for 7-16 thereof hy a corporation under the terms of a lease of other land made hy the owners to the corporation, the owners having the alternative under the terms of the lease of renting the land to the corporation for 1-30 of the product. Held: the land was improperly assessed as cane land free of conditions; and the growing crop was improperly assessed on the basis of a high price of sugar of a particular time instead of a price that could reasonably be expected during a considerable period and without making sufficient deductions for the cost of cutting and milling.</p> <p>Id. — enterprise for profit.</p> <p>Combined property, though properly assessed as a whole as the basis of an enterprise for profit, should be assessed by itself and not in connection with other property, though owned by the same persons, leased to others and assessed separately.</p>

<p>Embezzlement — instructions appropriate to defense of accounting to-on.e assuming to be the owner’s agent — wrong instructions, effect upon, of right instructions — comment upon frivolous exceptions.</p> <p>Instructions which might be appropriate in a civil action for recovery of the money entrusted to the defendant are not appropriate in a charge of embezzling money. The effect upon a jury of wrong instructions is not removed by giving right instructions, upon the same subject, the jury not being instructed to disregard, the wrong ones. The practice of taking frivolous exceptions in the trial of a case deserves censure and is condemned by the court.</p>

<p>Appeal prom Tax Appeal Court, Fourth Taxation Division.</p>

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

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

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

<p>Territory — action- against for its breach of agreement made in 1849, between the Hawaiian government and ■American Board.</p> <p>This court has jurisdiction of an action of assumpsit by the successors of the American Board .of Foreign Missions brought upon a breach by the Territory of an agreement made between the board and the Hawaiian government in 1849.</p> <p>Id. — agreement—construction of-7-new term not added by acts of parties.</p> <p>A transfer was made by the American Board to the Hawaiian government of the Lahainaluna school property on condition that “the said institution shall be continued at its expense as an institution for the cultivation of sound literature and solid science, and further that it shall not teach or allow to be taught any religious tenet or doctrine contrary to those heretofore inculcated by the mission,” etc., and that in case of nonfulfilment of the condition the sum of $15,000 should be paid. From the date of the transaction until 1903, religious instruction continued to be taught at the school as previously, both parties appearing to regard such instruction as required by their agreement. Held: the express agreement does not require that the specified instruction should be given, and the terms of the agreement being clear and unambiguous the practical construction which the parties have made does not introduce a new term in the agreement.</p> <p>The school was changed by the Territory to a technical school under the name of the “Lahainaluna Agricultural School.” Held: this is not a breach of the agreement to continue the institution for the cultivation of sound literature and solid science.</p>

<p>.Circuit courts — jurisdiction to naturalize.</p> <p>Under the naturalization laws of the United States and the-Organic Act the circuit courts of this Territory have power to naturalize.</p>

<p>Bona fide purchaser for value — no relief against inequity.</p> <p>The Territory acquired of the plaintiff certain land for street extension and for the use of the H. R. T. & L. Co. tracks and cars as required by statute, with an agreement to move plaintiff’s buildings in good order to another portion of his land and make the highway in front thereof and of ether land obtained from the trustees of the B. Estate for him passable for vehicles, which agreement was inserted as a covenant in a conveyance executed by the governor, but which, it had been held, he was not authorized by statute to make. Held: the Transit Co. is a bona fide purchaser for value without notice of nonperformance of agreement by the Territory so that the relief prayed for cannot be granted. Demurrer to the bill on this ground is sustained, but without deciding that upon the facts alleged the plaintiff is without remedy, if pursued within the time limited by statute, for nonperformance of an agreement made by authority of law by the superintendent of public works.</p>

<p>Will — revocation of probate.</p> <p>A decree dismissing a petition to revoke the probate of a will on the ground of forgery is affirmed on the evidence.</p> <p>Id. — practice.</p> <p>The rule announced in Territory v. McCandless, 16 Haw. 728, and Texeira v. American Dry Goods Association, ante 41, that it is not correct practice in equity to dismiss a bill at the close of plaintiff’s case on motion of defendant without resting is applicable to a proceeding of this kind.</p>

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

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

<p>County ordinance — prohibiting spraying clothes in laundering them by water projected from the mouth — not unreasonable and not class legislation.</p> <p>A county ordinance prohibiting laundrymen from sprayirg clothes with water projected from the mouth is not invalid on the grounds that it is unreasonable or is class legislation directed against Chinese.</p> <p>Id. — imprisonment for nonpayment of a fine for violation of ordinance.</p> <p>Imprisonment cannot lawfully be imposed for nonpayment of a fine for violation of this ordinance.</p>

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

<p>Habeas Cobpus — contempt—refusal to answer question of grand jury because self incriminating and immaterial — adjudication in defendant’s absence.</p> <p>The petitioner, having refused to answer the grand jury’s question whether he was maintaining a gambling game on the grounds that it might injure him to answer and that the question was immaterial, was cited to appear and appeared before the judge to show cause why he should not be punished for contempt. The judge, after hearing the case, orally sentenced him to ten days’ imprison, ment or until he should purge himself of contempt by answering the question. Upon the afternoon of the same day the judge signed an order which was filed the following day formally adjudging the relator to be guilty of contempt and sentencing him as aforesaid, it not appearing that the defendant was then present. Held: The</p> <p>witness could be compelled to answer, as the statute exempts him from prosecution on account of his testimony and as a witness has no privilege at common law to decline to answer immaterial questions; also, the adjudication was properly made although the defendant was not present.</p>

<p>Oath of secrecy — to witness before grand jury, not authorized.</p> <p>An oath, of secrecy cannot be required of a v/itness before a grand jury by one of the judges of the circuit court of the first circuit.</p> <p>Oontejipt — violation by witness of unauthorized oath, not.</p> <p>It is not a contempt of court for a witness before a grand jury to violate an oath of secrecy which was unauthorized, and one imprisoned for such alleged contempt may be released on habeas corpus.</p>

<p>Specific performance — defendant’s misunderstanding of agreement— whether induced hy plaintiffs or not — unfairness of agreement.</p> <p>A bill to enforce performance of a written agreement to partition land was dismissed because of its unfairness and of the defendant’s apparent mistake as to its contents. Held: The decree i.s, affirmed, the evidence justifying a finding that the written agreement sought to be enforced did not conform to the oral agreement or to the defendant’s understanding of its contents in failing to-provide that the land apportioned to her should be that on which, her house stood.</p>

<p>Petition eor Rehearing.</p>

<p>Statute, title of — concurrent jurisdiction.</p> <p>The title of “An Act to Authorize Licenses for the Retail of' Wines, Beers and Ales of Low Alcoholic Strength” is sufficient-to authorize a section providing a penalty for violation of conditions expressed in licenses so authorized and conferring jurisdiction upon “all district magistrates to ¿ear and determine all prosecutions authorized under the provisions of this act.” This jurisdiction is not exclusive; circuit courts have jurisdiction of “all' criminal offenses, cognizable under the laws of the Territory, committed in their respective circuits.” Sec. 1647, R. L.</p> <p>ID. — charge of furnishing leer on premises — evidence indicating premises to which license referred — cross-examination, ashing witness whether he had leen drinhing — other offenses — reluttal.</p> <p>The evidence showed that the heer was furnished, as charged, at the defendant’s saloon. The refusal of the court to allow the defendant, in cross-examining a witness, to inquire whether he had “been drinking before that day” in the saloon or at his homo or elsewhere, although the questions, when renewed, were said to be asked in order to test the witness’ memory; held: not error, there being no suggestion that the defendant proposed to show that the witness was under the influence of liquor.</p> <p>The defendant having in direct examination testified that liquor had never been sold on Sunday in his saloon, the prosecution was allowed, in rebuttal, to show that the saloon had been known to be open and doing business on preceding Sundays; held: as the defendant claimed that he had not authorized furnishing beer on the Sunday charged, evidence of previous sales on Sundays was material and the evidence in rebuttal was properly admitted.</p>

<p>Eminent domain — statutory proceedings to determine value of land required for public street — right of Territory to discontinue.</p> <p>The Territory had extended Kukui street under the provisions of 'Sec. 750, R. L., acquiring, under the provisions of Chap. 52, lb., the land within the surveyed limits, except the claimant’s, on ■whose claim for damages commissioners, appointed as prescribed by statute, made and delivered to the claimant a decision awarding her $419.30 damages, from which award and decision she appealed to the circuit court. Upon the case being called for trial the Territory and superintendent of public works filed a discontinuance and «abandonment of the proceedings which the court refused to allow, ordering the trial to proceed in their absence with the result of a verdict for the claimant in the sum of $1250. Held: The Territory had no right to discontinue the proceedings at the time it sought to do so, since it had so far completed the extension that it could not discontinue its public use and, in fact, had not sought to do so, and the claimant’s land was required in order to make the extension conform to the statute. •</p>

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

<p>Order for new trial — when and when not interlocutory for purposes of writ of error.</p> <p>An order granting a new trial is usually interlocutory and not reviewable on error, whatever may be the rule on exceptions, until after the new trial has been had and final judgment entered; but if there was no jurisdiction to make the order, it is final in its nature and may be brought up immediately on error.</p> <p>Bond on new trial — must he filed within 10 days after verdict, though judgment not entered.</p> <p>Under R. L., See. 1805, on a motion for a new trial, the bond, for costs and against disposition of property to plaintiff’s detriment, as well as the motion itself, should be filed within ten days, after verdict, whether judgment has been entered or not.</p> <p>Id. — may he waived, how.</p> <p>The filing of such bond within the time prescribed by the statute may be waived, either expressly or by implication, but the mere fact that plaintiff’s counsel did not raise the objection that no bond had been filed on the seventh day after verdiet when defendants’ counsel intended to present the motion according to notice given by him, but instead sent word to the court that he was not ready, and desired a postponement, being then otherwise engaged, would not constitute a waiver or prevent his raising the objection on the eleventh day after verdict, which was the day to which the postponement was made on the seventh.</p>

<p>Physicians and surgeons — statute requiring annual fee held void.</p> <p>That portion of Act 48 of the Session Laws of 1905, which act amends the first paragraph of Section 1068 of the Revised Laws, providing that “no license shall he granted under the provisions of this section unless the applicant shall pay an annual fee of $10,” is invalid and void on the ground that it discriminates between the holders of licenses under the amending act and the holders of licenses issued prior thereto.</p>

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

<p>Error to the Circuit Judge oe the Eirst Circuit.</p>

<p>Garnishment — ¡seamen’s wages cannot be made subject to.</p> <p>A seaman’s wages cannot be attached or made subject to garnishee process. U. S. Tt. S., Section 4536.</p>

<p>Tax appeal — burden on appellant.</p> <p>A valuation made by tbe tax appeal court is sustained, tbe evidence not showing that it was erroneous.</p>

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

<p>Judge — disqualification.</p> <p>A justice of this court is not disqualified from sitting in a case which requires consideration of an act of which he expressed approval to a member of the judiciary committee of the legislature when the bill was before it.</p> <p>Statute — partial repeal.</p> <p>Act 59 of the Laws of 1905, which provides that infamous punishment shall not be imposed on persons convicted of misdemeanors, repeals that portion of Sec. 3179, R. L., authorizing hard labor in the sentence of imprisonment but does not repeal that portion which authorizes imprisonment.</p> <p>Indictment — infamous punishment — fifth amendment — confinement in Honolulu jail.</p> <p>A sentence to imprisonment for a misdemeanor does not become infamous punishment requiring an indictment under the fifth amendment by reason of the convicted person being confined in Honolulu jail.</p> <p>Id. — trial by jury — sixth amendment — waiver of jury.</p> <p>Under the sixth amendment a misdemeanor for which imprisonment may be imposed for as long a term as one year requires a trial by jury although it does not require an indictment as for an infamous offense; but the right to a trial by jury in the first instance is waived under Sec. 1664, R. L., by a defendant not demanding a jury when brought before a magistrate for trial but submitting to the jurisdiction of the magistrate. The act authorizing trial by the magistrate in a case like this, provided the defendant does not demand a jury, is constitutional.</p>

<p>New tbial — order for, when not interlocutory.</p> <p>Although an order granting a motion fox- a new trial is ordinarily interlocutory and not reviewable on error before final judgment, it is final and reviewable if it is made in what must be considered a new proceeding, as when the court had no power to make it. In order to be final for the purposes of review it need not be absolutely void so as to be subject to collateral attack.</p> <p>In. — when too late for court to order of own motion.</p> <p>A trial judge cannot grant a new trial of his own motion in a civil case at the second term after that in which the verdict was rendered and judgment entered, and, a fortiori, his successor cannot in vacation after the third term after verdict and judgment; but it is held in this case that the decision of the trial judge and the order of his successor for a new trial were not made of their own motion but in response to motions by the defendants.</p> <p>Id. — power or duty of trial judge's successor to order.</p> <p>The rule that a successor to a trial judge should grant as matter of course a motion for a new trial which has been made and perfected within the proper time — because the movant has a right to have the motion decided and the succeeding judge cannot decide it for want of knowledge of the facts and the trial judge cannot because of his death or the expiration of his term of- office — has no application when the movant has no right to have the motion •decided for the reason that it was not perfected by the filing of. a bond within the prescribed time. Ip. — writ of error which brings up order for, brings up decision on which order was based.</p> <p>Wien. aDi order for a new trial made by a succeeding judge is merely the formal order entered in pursuance of the decision of the trial judge and not an independent order, a writ of error brought within six months to review the order brings up also the decision though the latter was filed more than six months before the writ.was issued. In such case the attack upon the decision is not collateral.</p>

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

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

<p>Divorce — notice to libelee without the Territory.</p> <p>In order to obtain jurisdiction over tbe libelee in a divorce case by personal notice to him without the Territory, under R. Tj., Sec. 2231, he should be notified, among other things, when to appear. It is not sufficient for a private person to leave with him in the foreign state a copy of the libel and of a summons- in the usual form for personal service by an officer within the Territory.</p> <p>Appearance after decree — when general.</p> <p>An appearance after decree to move to open the default and set aside the decree on the grounds of excusable inadvertence and want of jurisdiction and for leave to answer and present a defense is a general appearance, rendering unnecessary further service or notice in order to obtain jurisdiction over the libelee.</p>

<p>Biel to set aside wife’s deed to husband through M., the intermediary GRANTEE, ALLEGED TO HAVE BEEN OBTAINED FROM HER BY FRAUD, UNDUE INFLUENCE AND DURESS.</p> <p>The deeds were made April 15, 1890, the wife died the following February and the husband November 17, 1902. A suit to set aside the deed was brought July 18, 1903. M., the intermediary grantee, was the witness mainly relied upon by the plaintiffs. He had refused to give them information to support a bill to set aside the deed prepared by an attorney at tbe request of tbe plaintiff Trask in behalf of himself and the other heirs of the wife during tbe husband’s lifetime. Held: That there was no evidence of</p> <p>fraud or undue influence and that the evidence of duress was no* sufficient to justify a decree setting aside the deed, particularly in view of the delay in bringing tbe suit.</p> <p>In- — practice—misjoinder of administrators — summons giving certain defendants more time to appear than required by rule — issuing second summons to a■ defendant in place of one objected to as not served by an authorized officer.</p> <p>Held: The administrators of the respective estates of the wife and husband were not properly joined, the one as a co-plaintiff and tbe other as a co-defendant. Motions to quash the second summons, as well as that which allowed more time than was requested, were properly denied.</p> <p>Id. — joinder of M., as co-defendant — amendment to bill during trial— praying for more than equitable relief.</p> <p>M. was a proper co-defendant. The court properly allowed an amendment of the bill at the trial to show the interest of a eoplaintiff, T. If a bill prays for more than equitable relief and a decree grants it, it is good as far as equitable relief is prayed for or granted.</p>

<p>Husband’s liability on wife’s express contract.</p> <p>A wife as well as any other person may act as her husband’s agent and if as his agent she hires a house for both at a fixed rent, he is liable for the rent irrespective of his legal liability to support her. In this case the plaintiff’s evidence is held sufficient to show prima facie that the express contract was made by the husband himself or was authorized or ratified by him if made by her and hence a nonsuit should not have been granted.</p>

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

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

<p>Witness fees — not allowed, when witness is a party.</p> <p>A witness who is a party is not entitled to mileage and attendance fees — at least when it does not appear that he attended solely as a witness.</p> <p>Attorney’s fees — allowed in chambers as well as term cases.</p> <p>The provisions of R. L., Sec. 1889, allowing attorneys’ fees applj to cases before circuit judges at chambers as well as to term cases in the circuit courts proper.</p>

<p>Fixtures — water tanks connected loith roof gutters from house.</p> <p>Water tanks resting on posts and connected with gutters upon the roof of a house by spouts or pipes nailed to them, are not removable by a tenant under a lease for a stated term after the expiration of the term, the premises meanwhile having been leased to the defendants, the plaintiff’s lease containing a covenant to yield up the premises at the end of the term with all erections, buildings and improvements placed upon the same.</p>

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

<p>Appeal from: Circuit Judge, Eifth Circuit.</p>

<p>Gu Audi.oís — accounting.</p> <p>Guardians should file annual accounts.</p> <p>In.- — maintenance of ward.</p> <p>A guardian may be allowed a reasonable sum for the maintenance of bis ward, to be paid to the mother, which in this case is fixed at $15 a month.</p> <p>Id. — reasonable necessity of expenditures.</p> <p>A guardian will be surcharged with expenditures not shown to have been reasonably necessary.</p> <p>Id. — commissions.</p> <p>A guardian’s commissions may be reduced for neglect of duties.</p>

<p>In an action by a vendee under a time purchase of land to recover from the vendors the only two instalments paid on account of the purchase price, no deed to be delivered until full payment, and time being of the essence of the contract, the jury being instructed that under the contract the vendee was entitled to the immediate possession of the land and that he could recover if the vendors failed or refused upon request by the vendee to put him in possession, and the evidence being conflicting whether the vendee requested the vendors to put him in possession, a verdict for defendants cannot be disturbed.</p>

<p>Appeal prom Court op Land Registration.</p>

<p>Dower — jurisdiction of circuit judge.</p> <p>In a suit brought against a widow for the admeasurement of dower, where the widow denies she has any dower right, a circuit judge at chambers has no jurisdiction to determine the right of dower.</p>

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

<p>^Furnishing intoxicating liquor to a minor — evidence of dealer's knowledge of age of the minor.</p> <p>At an evening entertainment at the defendant’s liquor saloon there was a minor among the musical performers furnished with beer served by one of the defendant’s employees but placed on a table, where the beer was drunk, by one not in the defendant’s -employ; the defendant was in and out during the evening. Held; The evidence justified the inference that the defendant knew ’.the beer was being indirectly furnished to the musicians. It was for him to show, which he did not undertake to do, that he did not know or had no reason to1 suppose that any of them were minors.</p>

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

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

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

<p>Attorney — disbarred for altering document and making false certificate.</p> <p>An attorney is disbarred for materially altering an executed document without tbe authority of its signers and adding to it a false certificate of acknowledgment.</p>

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

<p>Counties — power to maintain parks.</p> <p>The county of Oahu has power to appropriate county funds for the maintenance and up-keep of Kapiolani Park and the roads therein.</p>

<p>Ejectment — evidence—authentication of clergyman’s record of baptism, — wife’s testimony as to non-access — cross-examination—evidence of being lawfully begotten.</p> <p>Plaintiff as trustee for T. M. brought ejectment for T. M. as the only surviving lawfully begotten child of F. M. (1) A clergyman’s entry of the baptism of W. T. M., shown to be T. M., was authenticated by proof of his handwriting, he being in Australia. Held: No error. (2) The wife of F. M., having testified for the defendant that she had two other sons living, bom after she had become separated from her husband, the plaintiff showed hy her testimony in rebuttal non-intercourse with her husband after they had become separated and until his death, the sons having been born several years after the separation began. The defendant was not allowed to cross-examine her concerning her illicit relations with the plaintiff. Held: The evidence was inadmissible under the rule in Ooodright v. Moss, Cowp. 591, which appears to be law in England still and to have been adopted'generally in the American cases, but the evidence and the refusal to allow cross-examination were harmless in the view that the verdict can stand for the plaintiff even if the sons George and Harry, designated in the evidence of the defendant, were co-tenants.</p>

<p>Tort — rnonsuit.</p> <p>In an action of tort for shooting at plaintiff with a pistol if the evidence on behalf of plaintiff justifies an inference that she suffered damage as a necessary consequence of the tort, a nonsuit should not be granted.</p> <p>Id. — exceptions.</p> <p>On motion of plaintiff an order of nonsuit, to which no exception was taken, may be set aside at the same term of court.</p>

<p>Appeal — jurisdiction of district court to try title to land.,</p> <p>A judgment of the circuit court on an appeal from the district court in an action in which title to land was involved is void.</p> <p>Ebbok — practice.</p> <p>A writ of error lies to revise an erroneous ruling of the circuit court upon the question of jurisdiction although an exception to this ruling had previously been overruled by this court because it was not in such form as then to permit its adjudication.</p>

<p>Injunction against trespass — right to.</p> <p>A bill for an injunction against trespassing on plaintiffs’ land cannot be based on a void adjudication of tbe title to tbe land.</p>

<p>Action tor money had and received — by mortgagor’s assignee against mortgagee’s attorney — no privity necessary.</p> <p>An action for money had and received may be maintained by the mortgagor’s assignee against the mortgagee’s attorney on foreclosure, to recover an excess of fee retained by or paid to the latter out of, and with knowledge on his part that it came out of, the proceeds of the sale. There need be no privity other than what is implied in law between the plaintiff and defendant.</p>

<p>Exception to verdict — statement as to time when taken.</p> <p>A statement in a bill of exceptions that an exception to the verdict was taken at the time of its rendition is sufficient to show that it was taken in the presence of the jury and before its discharge.</p> <p>Exceptions- — should he incorporated in hill.</p> <p>A statement in a bill of exceptions to the effect that various exceptions were taken during the trial as will appear by the transcript, when made, of the stenographer’s notes, is insufficient. The exceptions should be set forth in the bill itself.</p> <p>Bill oe exceptions — amendment of.</p> <p>A bill of exceptions cannot be amended by inserting additional exceptions in it after the time prescribed by statute for the incorporation of exceptions in a bill and the presentation thereof to the judge.</p>

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

<p>Verdict — held supported hy evidence.</p> <p>A verdict for $25,000 for the loss of a dredger through the alleged' negligence of the defendants, who hired her from the plaintiff in the harbor of Honolulu and after using her there took her to tliebar at the entrance to Pearl Harbor, where she was lost, is held supported by the evidence.</p> <p>Trial judge’s opinion — that verdict is contrary to evidence, what weight to he given to.</p> <p>An opinion expressed by the trial judge that the verdict is against the evidence — in this case on the question of negligence— is not conclusive. In this instance it was expressed in a ruling that was set aside as beyond his jurisdiction, but, assuming that' some weight might nevertheless properly be given to it, it cannot control in view of the inadequacy of the reasons given for it by the trial judge and the clear adequacy of the evidence to support the verdict.</p> <p>Estoppel — none by consent upon condition when condition not performed.</p> <p>Consent, if given, by the plaintiff to the defendants to take the dredger to Pearl Harbor upon condition that the latter should give an adequate bond for her safety, which condition was not performed, would not estop the former from recovering damages for the latter’s negligence in taking her there, if that were negligence.</p> <p>Id. — none by mere Knowledge and silence, when.</p> <p>The plaintiff would not be estopped by the mere knowledge of its assistant superintendent of public works that the defendants were to take or had taken the dredger to Pearl Harbor, if that were negligence, and his failure to object — it not appearing what authority he had in the matter or what knowledge he had as to the rights of the defendants, and the latter, who had dealt with the superintendent of public works, having full knowledge of the extent of their rights.</p> <p>Id. — none by consent to use without specifying place of use, when.</p> <p>Consent, by contract, to the use of a dredger for a specified iim=> without specifying the place of use, does not necessarily permit its use in any place however remote or dangerous.</p> <p>Id. — consent to do a thing is not consent to do it negligently.</p> <p>Consent, if given, to take the dredger to Pearl Harbor and use her there would not estop the plaintiff from recovering damages for the defendants’ negligence, if any, in placing or keeping bor there under dangerous conditions.</p> <p>Negligence — preponderance of evidence, proximate cause, failure to provide against contingencies.</p> <p>Evidence tending to show that the defendants kept the dredger without proper protection where she was liable to he swamped in rough weather and that she was swamped in such weather, is sufficient to support a verdict that she was lost through the negligence of the defendants, even if there was no evidence of any special negligence during the last two hours before she sank and even if it was not negligence to place and use the dredger there in calm weather and there was no available means of taking her to a place of safety after rough weather arose, the defendants having failed to provide such means.</p> <p>Hypothetical question — form of.</p> <p>A nautical expert may properly be asked whether it would be “safe or prudent” to moor a dredger as described. It is not necessary to ask instead whether such mooring would be such an act as an ordinarily careful and prudent man would exercise as to hi? own property under similar circumstances.</p> <p>Value — evidence of, at time of loss.</p> <p>Evidence that the value of the dredger was $45,000 only eight months before she was lost and that during that time she had been used only in a quiet harbor and that she was then considered in sufficiently good order to be taken without further repairs for extensive use on a rough bar, would be sufficient to support a finding that she was worth $25,000 at the time she was lost — but there was direct evidence tending to show that she was worth that then.</p>

<p>Habeas Corpus.</p>