Volume 18 — Hawaii Reports

<p>Error to Circuit Judge, Second Circuit. ■</p>

<p>Peactice — amendment to transcript of evidence.</p> <p>The plaintiff, haying obtained a decree in his favor in equity case which the defendants had brought on error, applied to the trial judge to amend the transcript of evidence in accordance with an affidavit of one of the plaintiff’s attorneys and appealed from the denial of the motion. Held, on the showing made, the appeal must be dismissed.</p>

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

<p>PleadiNG- — 5ill in equity — multifariousness.</p> <p>A bill is multifarious which joins two defendants who are trustees under a will with another defendant who is trustee under-the will but in respect of a distinct and separate trust for the performance of which the other defendants are not accountable.</p>

<p>EXCEPTIONS EROM CIRCUIT COURT, FlRST OlRCuiT.</p>

<p>Income taxes — depreciation of property not deductible.</p> <p>In estimating the amount of taxable net income depreciation of property due to climate and wear and tear is not deductible under the head of losses actually sustained or incurred. Expenses for repairs or replacements when actually made may be deductible under the head of necessary expenses actually incurred.</p> <p>Id. — sinking fund not deductible.</p> <p>In estimating the net Income of the corporation in question for the purposes of taxation, there cannot be deducted the amount which the corporation is permitted by its franchise act to set aside as a sinking fund (besides operating expenses and an 8% dividend) before dividing equally with the Territory the balance of the income.</p> <p>Pbopekty taxes — “capital issues” do not include bonds.</p> <p>“Capital issues” do not include bonds, in a statutory provision that the combined property of every corporation holding a public utility franchise other than such as are required to pay the Territory. a percentage of its gross income shall be assessed at not less than' the total amount of the “par value of the capital issues emitted” by it.</p> <p>Id. — franchise taxable.</p> <p>The franchise of the corporation in question is not excluded or exempt from taxation by the Territory either under the provisions of the franchise act or as being a federal franchise.</p> <p>Tax appeal — powers of this court not restricted by action of tax■ court.</p> <p>Tliis court may assess the property of a corporation as combined property even if the tax appeal court assessed it as separate items. The appeal is general.</p>

<p>EXCEPTIONS PROM ClROuiT 0OURT, TlIIBD 0IROUIT.</p>

<p>■Unrecorded power of attorney to convey real estate — not valid as to third 'parties.</p> <p>An unrecorded power of attorney for the transfer of real estate is not valid or binding to the detriment of third parties even .though the latter have actual knowledge of it.</p>

<p>Homicide — evidence.</p> <p>In a prosecution for murder where the plea is self defense, the defendant testifying that the deceased had a bad feeling towards him, had abused him frequently, struck him with his fist, spit on him, chased him with a knife, and threatened to take his life, and that he was afraid that he would take his life, and it also appearing in evidence that the reputation of deceased for being a violent, dangerous, vindictive, revengeful man was very bad, which reputation was known to defendant, it was not erroneous to refuse to allow defendant to show that the rest of the Japanese community were in fear of the deceased, that the defendant knew of a certain assault made by the deceased on a third party, that the deceased stated to defendant acts of violence he had committed, that defendant knew of the violent character of deceased, and that defendant knew of acts of violence committed by deceased.</p>

<p>Water commissioner — decision reversed for want of sufficient petition and, notice.</p> <p>A decision of a water commissioner is reversed because based on a petition which merely alleged that the petitioner was the owner of certain land and entitled to the surplus water thereof and asked that the petitioner be allowed to use all the water as it saw fit, there being no allegations as to any controversy or other persons interested or disputing the claim or what use of the water was desired and no prayer for process, and the record not showing service of process on any one personally or by posting or newspaper publication.</p>

<p>Appeal prom Circuit J udge, EiRst Cibouit.</p>

<p>Jury law — workable notwithstanding botchy amendments.</p> <p>The jury law is still workable although several of its provisions were not amended sufficiently to harmonize clearly with amendments made in other provisions by Act 74 of the Laws of 1905.</p> <p>Leading question — what is and when harmless.</p> <p>The question “did you want him (the defendant) to do this or not,” put to the complaining witness in a case of rape after she had testified what the defendant had done to her, is not leading, and if it were its allowance would not be reversible error.</p> <p>Confession, evidence — plea of guilty before committing magistrate, magistrate’s minutes.</p> <p>A plea .of • guilty by an accused before a committing magistrate is admissible as a confession, and may be proved by the magistrate’s reading the charge as entered in his record book and testifying that he read the charge as so entered to the accused and that the latter pleaded guilty to it. If the record was not admissible as such, its admission was harmless error as it merely repeated what the magistrate had testified.</p> <p>Rape — utmost resistance excusable by fear of great bodily harm.</p> <p>In a case of rape it is not necessary to show that the complaining witness resisted to the utmost of her physical power if she was deterred from doing so by fear of great bodily harm from the threats and conduct of the accused.</p>

Submission on Agbeed Statement op Facts. STATEMENT OP THE CASE. This is a submission on a case agreed between the heirs of the late George Galbraith and the executors and trustee under his will asking adjudication of certain matters in controversy between them.

<p>Appeal eeom Circuit Judge, First Oiecuit.</p>

<p>EXCEPTIONS PROM C1RCUIT COUET, ElRST ClRCuiT.</p>

<p>Mandamus — to record deed.</p> <p>Mandamus lies against tlie registrar of conveyances to record a ' deed in tlie Hawaiian language in which, the expressed consideration is $25 and on which a -$1 stamp has been placed and properly cancelled when it does not appear that the actual consideration is different. An English translation of the deed is not necessary to ■be attached to the pleadings in this case.</p>

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

<p>FOREIGN CORPORATION, CONSTRUCTION OP STATUTE-“its Capital” held no* to mean “all its capital.”</p> <p>A statute winch provides that no ioreign corporation, with certain exceptions, “which does not invest and use its capital in this Territory,” shall have án office in this Territory, unless it first pays a prescribed annual license fee, does not apply to a Xoreign corporation engaged in selling beer in the Territory which in good 1’aith invests a substantial amount of its capital in the Territory in land, buildings, bottling plant, stock of beer, etc.</p>

<p>Adverse possession.</p> <p>Exclusive use of land fenced off by the owner under mistake of her true boundary if continued for the statutory length of time would bar an action of ejectment by the owner although the adjoining land was held under lease and the lessee claiming the intervening strip by adverse possession knew that the fence was not on the true boundary.</p> <p>Id. — continued adverse possession try one not in privity of estate or contract.</p> <p>Two years after the making of the fence on the wrong line the lessee of the adjoining land assigned the lease to the lessor of the defendants who took possession of the intervening strip of land. Held, in the absence of a transfer of this strip of land, whether oral or written, the taking possession of it hy the defendants’ lessor was a separate act of disseisin on her part and that in respect of this title there was no privity or succession of relationships created by deed or other act or by operation of law.</p>

<p>Territorial supreme court — need, not follow federal supreme court, when.</p> <p>The supreme court of this Territory may now, notwithstanding the amendment of March 3, 1905, which permits appeals from this court to the federal supreme court in cases involving more than $5000, follow decisions previously rendered by this court, although contrary to decisions of that court, on other than federal questions.</p>

<p>INCOME tax — 'profit on stock, transaction not derived, in any one taxation period.</p> <p>One who bought stock in 1898 and sold it in the latter half of 1905 at a profit of $120,000 is not liable to pay an income tax on such profit for the half year taxation period immediately preceding January 1, 1906.</p>

<p>Election contest- — not a recount, allowed by statute. '</p> <p>The statute relating to county elections does not permit a recount as such. It provides merely for a contest, to sustain wliieli the petitioner should allege of his own knowledge or on information and belief and not as mere guess-work, facts sufficient to change the result of the election</p> <p>Ballots as evidence — must have been kept safely.</p> <p>Before being admitted as evidence, ballots cast at a county election should be affirmatively shown to have been kept in their original condition.</p> <p>Ballots — classes of, held valid.</p> <p>The following classes of ballots are valid, when the defects mentioned are inconspicuous or appear to be the result of accident, carelessness, ignorance or want of skill or not of evil intent: ballots marked with an instrument other than a lead pencil; ballots on which the crosses are imperfectly formed, as when the lines are irregular or repeated or have small hooks at the ends of the arms, or when the lines are of varying lengths so as to give the cross the appearance of a Y or T or Y, or when the cross' has the appearance of a figure 4; ballots on which the lines of the cross are perpendie ular and horizontal instead of oblique, or on which the crosses are unusually heavy or one of which is unusually heavy, or in which there are small punctures; ballots on which there are small dots or other marks near the crosses; or on which there are other accidental irregular indefinite marks; ballots on which crosses have been made and well erased; ballots on which there are impresses of other crosses, the result of marking one ballot on top of another or of marking on a colored shelf or of folding after marking with a soft pencil; ballots on which the cross marks are substantially though not entirely within the proper space.</p> <p>Id.- — classes of, held invalid.</p> <p>The following classes of ballots are invalid: ballots on which a cross is not in a proper place, as when it is on the left of the name or in the name space or to the right of a blank space; ballots on which there are marks that might be regarded as distinguishing marks, such as a single line left after starting to make a cross in a proper place and not completing it, or small dots or other marks made in checking off names not voted for, or a heavy line made under a cross for emphasis; ballots on which there are conspicuous erasures, or through which there is a large hole caused by repeated rubbing with a pencil. A voter who spoils his ballot should surrender it and obtain another.</p> <p>Id. — may he counted for one class of officers though too many of another class voted for.</p> <p>A ballot marked for too many of one class of officers is not thereby invalidated as to other classes.</p> <p>Ip. — comity officers of all classes to he on one ballot.</p> <p>The county act requires the names of candidates for all classes of county officers elected at one election to be placed on the same ballot.</p>

<p>FORECLOSURE by entry — right to subsequent rents — certificate of entry„</p> <p>A mortgagee, after peaceable entry for foreclosure, is entitled to the rents although a foreclosure sale was substituted for the foreclosure by entry. The certificate of entry intended by the statute (Sec. 2166, R. L.) does not require averment of default in the conditions of the mortgage.</p> <p>Mortgagee’s assignment oe mortgage — power of sale.</p> <p>The W. A. Go., mortgagee, in order to secure its bonds, assigned, property, which may have included the above mortgage, by deed of trust which authorized the W. A. Co. until default on its part to “possess and enjoy the said premises with the appurtenances and all and singular the rights and privileges hereinbefore described, to manage and use the same and receive and take the income, earnings, rents, issues and profits thereof.” This gave that' company the right to exercise the power of sale in the mortgage.</p>

<p>Appeal eeom Cibcuit Judge, Fiest Oiecuxt.</p>

<p>Divorce — revision of decree as to custody of children after.</p> <p>The mother of two white children (hoys), whose ages are in the neighborhood of five and seven years respectively, having been awarded their custody on her divorce from her husband for nonsupport, a showing that she has since married an Hawaiian is not of itself sufficient to authorize a change in the decree concerning their care and custody.</p>

<p>Ballots — classes of, held invalid.</p> <p>Tlie following ballots, all cast in the same precinct, are held invalid: four ballots, .each having a small circle at or near the end of the lower right leg of the cross opposite the. first name on the ballot; five ballots, each having all the crosses well formed except one, which was not a cross such as is required by the statute, but was so made in itself and added to by other marks as to indicate an intention to render the ballot distinguishable.</p>

<p>Appeal from Ciecuit Judge, First CiRouxt.</p>

<p>Appeal eeom Ciecuit Judge, Eiest Cieouit.</p>

<p>Taxation — capital stock authorized,.</p> <p>Act 91, Laws of 1905, requiring tliat upon the filing of a certificate of incorporation in the office of the treasurer of the Territory there shall he paid “twenty-cents for each thousand dollars of the total amount of capital stock authorized,” imposes a tax upon the amount of capital stock issued or authorized by the company not including the additional amount which, by the articles of association, the company has the privilege of issuing by increasing its capital stock.</p>

<p>Appeal from Circuit Judge, Eiest Oiecuit.</p>

<p>Trading stamp statute — constitutionality.</p> <p>Act 85 oí the Session Laws of 1905, in so far as it prohibits a person from selling property on the representation and inducement that the purchaser shall have the right to select and receive some other property as a gift or premium, which is unselected and unidentified by him at or before the sale, and the issuance of trad ing stamps for that purpose, is unconstitutional and void.</p>

<p>Income tax.</p> <p>Under the income tax law (R. L., Ch. 99, as amended- by Act 87 Laws of 1905) the income of certain plantation corporations for the period between July 1, 1905, and January 1, 1906, is held to have been the difference between the gross amount of sales of movable property during that period less the amount expended in the production of the same.</p>

<p>EXCEPTIONS PROM CIRCUIT COURT, ElRST ClRCuiT.</p>

<p>EXCEPTIONS PROM ClECuiT ÜOURT, FlKST OIRCUIT.</p>

<p>Appeal eeom: Ciecuit Judge, Fiest Cieouit.</p>

<p>Appeal ebok CiRcuit Judge, First Circuit.</p>

<p>Stamp duty — instrument modifying terms of mortgage assessable as agreement, not as mortgage.</p> <p>An instrument reducing the rate of interest on bonds secured by an existing mortgage, extending the time of payment of the bonds, providing for new coupons, and permitting the trustees to. take possession of the mortgaged property and manage it and apply the income for the benefit of all concerned, should be' stamped as an agreement and not as a mortgage.</p>

<p>PbacticE' — judgment by default, entry of, and appeal from.</p> <p>November 28 the parties appeared before the magistrate and a garnishee was examined, cross-examined and discharged. The case was continued to November 30, when the parties again appeared, the defendant demurred to the complaint and, his demurrer being overruled, moved to dismiss the suit on the ground that no copy of the complaint had been served on him. The ease was continued to December 3 when the plaintiff appeared and the defendant, not appearing, was defaulted. The magistrate, upon evidence taken ex parte, gave judgment for the plaintiff from which the defendant appealed to the circuit court which dismissed the appeal. Held: The demurrer was a general appearance involving waiver of service; the motion to dismiss was not such as would have entitled the defendant upon its denial to further continuance had he appeared on the day set; the entry of the default was authorized by the statute, R. L., Sec. 1767, which, by analogy, is applicable to proceedings before a district magistrate; the dismissal of the appeal was within the rule of Luce v. Chin Wa, 5 Haw. 631.</p>

<p>QUESTION RESERVED BY OlRCuiT ÜOURT, FlRST ClRGuiT.</p>

<p>Appeal eeom Disteiot Magisteate, Ewa,</p>

<p>Reheaking — liability of husband for necessaries furnished to wife.</p> <p>A petition for rehearing in this case on the ground of mistake and error is denied, no mistake or error appearing.</p>

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

<p>Exceptions ebom: Ciecuit Couet, Fiest Ciecuit.</p>

<p>"Will — construction—nonapplication of ejusclem generis rule.</p> <p>A gift to husband of “all property known belonging to me and appearing in my name, situate at K., with intention to bequeath the same as hereinafter described: One bay mare, one black mare, one frame wooden house and other houses owned by me, as well as all other property ownéd by me,” carries real estate in Honolulu, there being no reason for applying the ejusdem generis rule restricting the latter clause to property at K. in order to effectuate expressed intention.</p>

<p>Tax lien foreclosure — appeal.</p> <p>In a suit to foreclose a tax lien tried on December 1, in which, the circuit judge on December 14 filed a judgment or order that plaintiff recover of defendant the amount found due and in which on December 18 he filed a final (although styled supplemental) decree, an appeal by defendant filed on December 19 from the judgment of December 14 should be dismissed.</p>

<p>Motion fob Decree.</p>

<p>Appeal ebom Oiecuit Judge, Fiest Ciecuit.</p>

<p>Disteict magistrate’s JURISDICTION — action on judgment for taxes.</p> <p>An action does not lie in the court of a district magistrate on a judgment recovered for taxes of ever $300.</p>

<p>Equity — diU for cancelation of deed obtained by fraud.</p> <p>Held that the testimony fails to show that the plaintiff w»3 induced to execute the dee.d by fraud and deceit, or by misrepresentation of its contents.</p>

<p>Appeal eeom Cieouit Judge, Eiest .Ciecuit.</p>

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

<p>Appeal erom Circuit Judge, Fibsx OiRouit.</p>

<p>Exceptions — frivolous.</p> <p>In assumpsit on a promissory noto where defendant pleaded the general issue and gave notice of intention to rely also on fraud and failure of consideration, an exception to the denying of a motion to, strike out the plea of fraud is frivolous.</p> <p>Id. — judgment supported by evidence.</p> <p>A judgment of a circuit court jury waived cannot he reversed if there is sufficient evidence to support it.</p>

<p>Equity — execution sale of land set aside, when.</p> <p>An execution sale of land pending an order by a district magistrate restraining the sale, whether the order be authorized by law or not, will be set aside in equity when grossly inadequate prices were obtained.</p> <p>Phactice — service of district court summons — levy of execution against real property — tax suits — appointment of new collector of taxes between judgment and execution — non-averment that money sued for is for use of Territory — alias execution.</p> <p>A district court summons is properly served by delivery of a true copy to the defendant. A writ of execution is levied upon real property by posting the officer’s notice of sale describing the property in three conspicuous places within the district, publishing it in a Honolulu daily newspaper during thirty days prior to sale and posting the notice upon the premises. In a suit for taxes no revivor is required upon the appointment of a new tax assessor and collector between judgment and execution. It is unnecessary to aver in such suits that the money sued for is for the use of the Territory — a second execution may be issued on a judgment for taxes within one year after return of preceding execution.</p> <p>Shekiee’s sale to a subobdikate — requiring cash deposit on bids by judgment debtor.</p> <p>Repeated promises of tlie judgment debtor to pay the judgment not having been kept the high sheriff was justified in requiring his bids at the execution sale to be accompanied by a cash deposit. A sale to the high sheriff’s confidential clerk is not illegal as it does, not appear that there was fraudulent collusion between them.</p>

<p>Landlord and tenant — leasing land, on share of sugar annually produced..</p> <p>Under a lease made October 1, 1898, to commence January 1, 1906, providing for a rental of 3% per cent, of the gross amount of sugar annually produced on the premises, the land being subject meanwhile to an outstanding lease which was assigned to the lessee on June 7, 1898, the lessors are entitled as rent for 1906 to their proportion of sugar produced from cane grown on the land, which cane was harvested in March, April and May of 1906, although cultivated for a period of from nineteen to tnirty-one months prior thereto.</p>

<p>Mutual benefit association — effect of change of hy-law.</p> <p>R., as member of the defendant society, a corporation, from August 25, 1889, paid his monthly dues and received no benefit until his death April 3, 1904, a period of over fourteen years. A by-law of the society when he became a member provided as follows: “The society gives the following assistance to * * * children of ils members: To the children of loss than 12 years of age, orphans of members who during 10 years have contributed without having received benefits, the society shall give a pension until they complete the age of 12 years. This benefit shall be of 50 cents daily if member belongs to the first class and of 25 cents if to the second class.” November 20, 1903, a little over four years after the end of the ten years of his membership and a little more than four months before his death, thp by-law was amended by substituting fifteen years for ten years. R. did not consent to the change but, being a resident of Wailuku, was not entitled to notice of meetings which was required to be given only to residents of Honolulu. Held, Prear, C. J., dissenting, the amended by-law did not affect the pension right acquired under the by-law prescribing ten years as the term and does not purport to apply to such cases.</p>

<p>EXCEPTIONS EROM ClRGÜIT CoUET, SECOND OlRCuiT.</p>

<p>Mobtgage — foreclosure—pleading.</p> <p>A bill to foreclose a mortgage of all the right, title and interest of the mortgagor in a certain piece of land alleging the execution and delivery of the mortgage and describing the interest of the mortgagor as set forth in the mortgage, which was “all his right, title and interest in and to those certain premises situate on Union Street and Adams Lane in said Honolulu, being portions of L. C. A. 1086 to Mary Dowsett and of L. O. A. 801 to A. Adams and more particularly described as follows,” setting forth the metes and bounds, and also attaching a copy of the mortgage, is sufficient on demurrer to show the title of plaintiff and of its mortgagor, and it is not necessary to allege the amount or equity of the interest mortgaged.</p> <p>Id. — cross dill.</p> <p>In such a suit a defendant holding an inferior mortgage of the right, title and interest of plaintiff’s mortgagor cannot by cross bill have a mortgage from some one else of an undivided one-fifth interest in the same land foreclosed first or at least at the same time, the relief sought by the cross bill having nothing to do with the interest sought to be foreclosed in the original bill.</p>

<p>Specific pebfoRMANce — proof of contract.</p> <p>Decree dismissing bill for specific performance on ground of lack of satisfactory proof of meeting of minds on one point, affirmed with, modification that dismissal he without' prejudice to action at law.</p>

<p>EXCEPTIONS TEOM OIRCUIT C0URT, THIRD C1RCUIT.</p>

<p>Appeal PROM Circuit J udge, First Circuit.</p>

<p>Foreclosure sale, agbeement eor immediate Possession — agreement not-merged in deed, consideration, attorney’s authority, statute of frauds.</p> <p>At a foreclosure sale under a power the auctioneer announced, by authority of the mortgagee’s attorney in general charge of the-foreclosure, that immediate possession would be given,' and inserted -in the memorandum signed by him “possession given at once.” A deed without covenants was delivered to the purchaser but immediate possession was not given. Held, in an action for-breach of contract, the agreement as to immediate possession was not merged in the deed, was not nudum pactum, was within the scope of the attorney’s apparent authority, and was in compliance with the statute of frauds.</p>

<p>Mohtgage — surplus after foreclosure.</p> <p>In an action by a mortgagor to recover from the mortgagee tbe surplus arising from a statutory foreclosure of a first mortgage the fact that a third person holds a second mortgage on the same premises which has not been satisfied is no defense.</p>

<p>Appeal eeoM Commissioner op Peivate Ways and Watee Rights, HoNolulu.</p>

<p>I ANDLOKD AND TENANT-eviction. *</p> <p>In an action by a landlord against bis tenant for rent the removal of a barn from the demised premises by the landlord without the consent of the tenant is held, on the evidence, not to constitute an eviction, and, therefore, no defense to the action.</p>

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

<p>Exceptions ebom CiRcuit Court, Eiest Circuit.</p>

<p>Administrator — insolvent intestate — rights of secured creditor who disposes of security after presenting claim.</p> <p>Where a creditor of an intestate whose estate is insolvent holds security for his claim, and after his claim is presented disposes of the security, the sum realized operates as a partial payment to reduce his claim pro tanto, and he is thereafter entitled to dividends only on the amount remaining due on the claim.</p>

<p>Peactice — further proceedings after decision by supreme court of the United States.</p> <p>The decision of this court sustaining defendant’s exceptions upon a decisive point having been reversed by the supreme court of the United States, the defendant is entitled to a consideration of the other points presented by his exceptions, so far as they are not concluded by the opinion of the supreme court.</p>

<p>Appeal PRom Circuit Judge, Eirst Cibouit.</p>

<p>Exceptions from Circuit Court, FiRst Oibcuit.</p>

<p>Creditor's suit — Mil to set aside conveyance Toy insolvent corporation to director.</p> <p>A bill by a judgment creditor to set aside a conveyance, alleging a secret transfer of all the property of an insolvent corporation for inadequate consideration to a creditor who was its vice-president, director, general manager and principal stockholder,, held good on demurrer.</p>

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

<p>Botjkdaky — former adjudication — p atent — estoppel.</p> <p>A boundary line shown by an unambiguous survey with metes and bounds, adjudicated by a commissioner of boundaries and followed in a land patent, is not to be modified by extraneous evidence. The Territory is estopped from disputing the description contained in the patent.</p>

<p>Caín'GELATION OP INSTRUMENTS.</p> <p>A decree dismissing a bill to cancel a deed is affirmed on the evidence.</p>

<p>Constitutional law — intoxicating liquors — statute, title of — hoard of license commissioners.</p> <p>Constitutional questions raised by persons not affected by tbe alleged unconstitutionality are not considered.</p> <p>Tbe boards of license commissioners authorized by Act 119, Session Laws of 19 07, entitled “An Act To Regulate Tbe Sale Of Intoxicating Liquors, Repealing Act 67 Of Tbe Session Laws Of 1905,” are not courts.</p> <p>Act 119, Session Laws of 1907, embraces but one subject which is sufficiently expressed in its title.</p> <p>Tbe refusal of a- license under Act 119, to one who has on hand intoxicating liquors bought while holding a license under a former act, which, on termination of the license, cannot be sold by him, is not a taking of his property without due process of law.</p>

<p>Administrator — power to exchange securities.</p> <p>An administrator may exchange securities for shares of greater value to which the decedent was entitled.</p>

<p>EXCEPTIONS EltOM CIRCUIT COURT, ElliST C1RCUI.T.</p>

<p>Equity — >quieting title.</p> <p>Equity has not jurisdiction to declare a plaintiff’s title and to remove a cloud upon it created by assertion of an adverse claim followed by acts of trespass and annoyance to the plaintiff, where the respective claims depend upon the settlement of a legal controversy under a will.</p>

<p>Taxation.</p> <p>A valuation made by the tax appeal court is sustained not being shown to be erroneous or based on a wrong theory or insufficient or defective data.</p>

<p>TaxatioN — national bank, shares.</p> <p>National bank shares are not “public stocks" and cannot be taxed as such.</p>

<p>A.CCOUXT STATED.</p> <p>Evidence lield sufficient to support decision.</p> <p>Statutes — construction.</p> <p>R. L. 1747 does not require the decision of a circuit court in a jury waived case to contain special findings of fact.</p>

<p>Equity — practice-—intervention.</p> <p>A bill for an injunction having been sustained on appeal from a decree dismissing it and the cause remanded for “such further proceedings as may be proper not inconsistent with this opinion,” the judge, at the hearing of plaintiff’s motion for an injunction, properly denied the defendant’s offer of evidence, claimed to be a new defense, and also the motion of a person interested in the subject matter of the suit to be allowed to intervene.</p>

<p>.EXCEPTIONS PROM (JIROUIT COURT, ElRST C/IRCUIT.</p>

<p>Deeds — construction—vested and contingent remainders.</p> <p>A direction to a trustee to convey the estate upon the happening of a certain future event “to such of the said children as shall then be living and to the heirs and legal representatives of any who shall have hereaftor deceased” creates a contingent remainder, and the heirs of a deceased child take to the exclusion of the sole devisee under his will.</p>

<p>l.-AXDT.ojio and tenaxt — constructive eviction.</p> <p>In the absence of an express covenant by the landlord to repair, a tenant leasing a house lot with buildings thereon is not relieved of his liability to pay rent by abandoning the premises on the ground that the buildings have become so insanitary as to be uninhabitable.</p> <p>In. — relettiny—surrender.</p> <p>Reletting the premises after abandonment by a tenant is not acquiescence in a surrender when accompanied by express disclaimer of this intent.</p>

<p>Frsinnnr, action to establish — change of venue.</p> <p>A circuit court lias power witli the consent oí hotli parties to change the venue in an action to establish a fishing- right under the Organic Act.</p> <p>In. — whether within Organic Act.</p> <p>A fishery claimed in the Hanapopo River, Kauai, is held not to be included under sections 95 and 9 6 of the Organic Act.</p>

<p>Exobl>tj.ons jfROAt Circuit Court, Eirst Circuit.</p>

<p>Eyjdexok — execution of document.</p> <p>A bail bond, purporting to be signed by a defendant, offered in evidence for the purpose of identifying him by means of a recital therein, is inadmissible unless accompanied by evidence that it was executed by the defendant.</p>

<p>AIoTroiY koií Admission to Bait.</p>

<p>Kxckptions krom Giuouit Court, Plrst Circuit.</p>

<p>Exceptions fjíojí Cikcoit CouRt, Eibst Oibcuit.</p>

<p>Reserved QUESTION FROM. .FIRST CuiOUJX COURT.</p>

<p>AlM’HAL KRO.M. CIRCUIT JuiXlli, PlRST CIRCUIT.</p>

<p>PETITION KOR TÍE1I BARING.</p>

<p>EkkoR to OiRcuit Court, Seoond Circuit.</p>

<p>Liens — creation of equitable lien ty express contract.</p> <p>An agreement by the grantees of extensive real and personal property to pay an annuity to a charitable institution from all the property conveyed to them creates no equitable lien on the real estate.</p>

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

<p>PleadiNG — complaint in action to collect taxes.</p> <p>A complaint in an action brought in a district court “for ■taxes assessed against the person and property” of the defendant for two years is not demurrable on the ground that it contains separate causes of action without being separately stated.</p>

<p>EXCEPTIONS PROM ClRCuiT COUET, SECOND OlRCuiT.</p>

<p>Contempt — nonoomplianee with decree.</p> <p>Defendant, having admitted the maintenance over the land of another of a pipe line claimed to be an easement to adjoining lands but decided to be a trespass, cannot justify his disobedience of a decree enjoining its further maintenance upon the ground that his cotenant in and mortgagee of the adjoining lands will not allow him to remove it.</p>

<p>Judges — disqualification of — Sec. SI Org. Act.</p> <p>By tile terms of See. 84 Org. Act a justice is not disqualified from sitting in a cause in which a corporation is a party by the fact of a relative by affinity or consanguinity within the third degree holding shares of stock in the corporation, the justice having no pecuniary interest in the issue of the case either directly or through such relative.</p>

<p>Election — waiver—estoppel.</p> <p>There can he no waiver of a right which does not exist, consequently a decision that the plaintiff in bringing a lien suit did not show its election of a right to treat the property as sold precludes the possibility of a waiver if not of an estoppel, hut the facts-in the case do not show estoppel in pais or by record.</p> <p>Replevin — pleading—evidence.</p> <p>It is not error to allow a plaintiff to amend his petition by increasing the alleged value of the property sought to he replev-ied or by striking out the word “supplementary” prior to “contract.” The exclusion of certain evidence of the condition ot the property is not error.</p>

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

<p>Pleading — amendment of complaint.</p> <p>The opinion of this court in 18 Haw. 81, ordering a new trial and laying down a rule of apportionment applicable to the facts as then found, does not entitle plaintiff to amend its complaint.</p>

<p>Appeal imoM Tax Appeal Coüet, Eiest Division.</p>

<p>Taxation — deductions under income tax law.</p> <p>Under the income tax law oí Hawaii a corporation is not entitled to deduct from its gross income the estimated depreciation of its plant, either as an amount expended in the production of movable property under Sec. 1280 nor as an expense or loss actually sustained or incurred under Sec. 1281. ■"</p> <p>Id. — notice of assessment — waiver of objection.</p> <p>Under Sec. 1287, by reference to Sec. 1243 as amended, the tax assessor is reauired to give notice on or before April 1 of an assessment of income in excess of the return, but a taxpayer who has taken his appeal cannot object to lack of notice for the first time in the supreme court.</p> <p>Id.- — evidence of expenses admissible under circumstances.</p> <p>A taxpayer having made his return under an understanding with the treasurer of the Territory that depreciation would be allowed, is entitled, upon offer to the tax appeal court, to show expenses actually incurred in case of the disallowance of the estimated- depreciation.</p>

<p>Appeal prom Circuit Judge, SbooND Oirouit.</p>

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

<p>Statute of limitations — evidence of new promise.</p> <p>In an action of assumpsit in order to remove the har of the statute of limitations the evidence must show, which it does not in this case, either an express promise or an unqualified and direct admission of debt which the party is liable and willing to pay, without accompanying circumstances which repel the presumption of a promise.</p>

<p>Exceptions pkoíu Cieouit -Court, Eiest Ciecuit.</p>

<p>Process — summons—amendment.</p> <p>After service of a district court summons by delivery of a copy it can be amended by inserting the magistrate’s name.</p>

<p>Submission on Ac-hikicd Statement of Facts.</p>

<p>ErrcSr to DistRict Magistrate oe Hamakua, Hawaii.</p>

<p>Taxation — deductions under income tax law. .</p> <p>Under the income tax law of Hawaii the cost of new buildings cannot he deducted from gross income.</p> <p>The cost of a replacement may he allowed if the old article is practically hut not totally abandoned.</p> <p>The expenditure for a- steel and concrete bridge to replace a wooden one is deductible as a replacement only up to the cost of a new bridge like the old one.</p> <p>Additional machinery installed in a sugar mill is a betterment notwithstanding the fact that it is necessary to keep the plantation up to its former efficiency.</p> <p>Necessary expenses' of a business are deductible during the year in which they are incurred; amounts expended in the production of movable property are chargeable against the sales of that property irrespective of the year in which the amount was expended.</p>

<p>Judge- — disqualification of.</p> <p>A judge is not disqualified in a case by having gratuitously advised the defendants’ agent that he was doubtful whether the defendants were liable to the plaintiff on their bond given to her by them for a deed, the agent saying that the plaintiff had not performed her part of the agreement.</p> <p>Id . — app ear anee.</p> <p>General appearances made for the defendants by attorneys engaged by their attorney-in-fact authorized to “do and transad all and every kind of business of what nature and kind soever," upon whom, in the absence of the defendants from the Territory, service had been made, is a waiver of any objection to the service. » In the absence of evidence that the defendants did not ratify or acquiesce in the engagement of their attorneys the proceedings will not be vacated on the ground of their unauthorized appearances</p> <p>Id. — pleadings—enforcible contract.</p> <p>The bill as amended shows an enforcible contract, and not merely an unaccepted offer, by averring an agreement between the parties whereby the defendants should purchase certain land and hold it as the property of the plaintiff and defendants jointly using the profits for cultivating it towards payment of the purchase money and should convey the land .to the plaintiff for $410, of which sum $200 was paid and the balance tendered and refused on the ground that the defendants had in their possession money of the plaintiil sufficient to pay the same.</p> <p>Id. — frauds, statute of.</p> <p>A bond entitled “Bond for Deed,” given to the plaintiff by the defendants requiring them to pay her $820 if they should not by a certain date convey certain land to her on her payment to them of $410 is a sufficient memorandum of an agreement to comply with the statute of frauds and is supported hy certain letters of the defendants evidently referring to the agreement.</p>

<p>Appeal i'hom District Magisteate, Honolulu.</p>

<p>Appkau FROM District Magistrate, TToNouuuu.</p>

<p>Counties — power to duplicate territorial legislation.</p> <p>Under legislative authority to regulate all local police, sanitary and other regulations not in conflict with the general laws of the Territory, a county has no power to prohibit by ordinance an act already made penal by territorial statute.</p> <p>Id.' — ordinance held void.</p> <p>Ordinance 9 of the county of Oahu, relating to gutters on awnings, is void as conflicting with R. L. Sec. 959 covering the same subject.</p>

<p>Appeal erok Couet oe Laud Registration.</p>

<p>Tanijlobd and tenant — summary proceedings — affidavit to oust jurisdiction of district court.</p> <p>An affidavit in the district court, in support of a plea that title to real estate is involved, is insufficient under supreme court rule 15 wlien no facts are alleged showing title in the defendant or in some third party under whom he claims.</p> <p>Id. — pleading—right to bring action — judicial notice — clerical error.</p> <p>An action for summary possession for violation of conditions of a lease of land formerly crown land may properly be brought in the name of the Territory by the commissioner of public lands.</p> <p>The court takes judicial notice that the title in the lands formerly known as crown land is now in the United' States and that the Territory is by law entitled to ’ reenter and recover possession for nonpayment of rent.</p> <p>A clerical error, explained in an instrument annexed to the complaint and made part of it, is harmless.</p> <p>Couets — judicial question — croton lands.</p> <p>A claim that Art. 95 constitution of the Republic of Hawaii • is invalid, which declares that the portion of the public domain theretofore known as crown lands then was, and theretofore had been, the property of the Hawaiian government, does not present a question for judicial inquiry.</p>

<p>Licenses — fee—exhibiting pictures.</p> <p>A fee of $5 a performance is chargeable under Sees. 1402, 1403, 1405 R. L. for making an exhibition of pictures moved by mechanical contrivance.</p>

<p>Adverse possession — crown lands.</p> <p>Adverse possession of crown, lands cannot be shown.</p> <p>Courts — judicial question — crown lands.</p> <p>Following Territory v. Kapiolani Estate, 18 Haw. 640, a judicial question is not presented by a claim requiring a ruling upon the constitutionality of Art. 95 of the constitution of the Republic of Hawaii concerning the ownership of crown lands.</p> <p>Practice — exceptions.</p> <p>An exception by the defendants to a denial of their motion to order judgment for the defendants at the close of plaintiff’s case on the ground that the plaintiff had not shown title does not present the question whether judgment for the defendant M. P. ought to have been given in the absence of evidence of his possession admitted for themselves by the other defendants, nol-is the question presented by a general exception to the judgment as contrary to law and the evidence.</p>

<p>Appeal from tax appeal comí, fourth taxation division.</p>

<p>Petition for rehearing.</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>Appeal from circuit judge, .fourth circuit.</p>

<p>Exceptions from circuit court, first circuit.</p>

<p>Exceptions from circuit court, first circuit.</p>

<p>Exceptions from circuit court, second circuit.</p>

<p>Exceptions from circuit court, first circuit.</p>

<p>Appeal from tax appeal court, Oalxu.</p>

<p>Prohibition — writ of.</p> <p>A writ of prohibition will issue only “on the ground that the cognizance of the said cause does not belong "to such court, or that the cause or some collateral matter arising therein is beyond, its jurisdiction, or that it is not competent to decide it." Sec. 2028 R. L.</p> <p>New tRial — bond to satisfy judgment.</p> <p>The filing of a bond to satisfy judgment with a motion for new trial is not required by Act 83, S. L. 19 07, m order to authorize the court to entertain the motion.</p>

<p>Contempt — mittimus.</p> <p>The statute, Sec. 3073 R. L., is imperative which requires the mittimus to state the circumstances of the contempt.</p>

<p>Bee’ore Hartwell, C. J., at Chambers.</p>

<p>Appeal from Ciecuit Judge, Second Ciecuit.</p>