Volume 19 — Hawaii Reports

<p>Public lands — right to patent by lessee of right of purchase lease.</p> <p>A lessee under a right of purchase lease of public lands who applies for a patent satisfies the statutory prerequisite that he “has resided thereon not less than two years” by showing that he has for that period maintained on the premises a permanent and fixed abode with the present intention there to remain.</p>

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

<p>Counties — bonds—limitation with respect to taxable property.</p> <p>The limitation in Sec. 55 of the Organic Act of bonded indebtedness of a subdivision of the Territory to a certain percentage of the assessed value of taxable property of such subdivision refers to property taxable by such subdivision, and a county without the power of taxation has no power to issue bonds.</p>

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

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

<p>Petition for Rehearing.</p>

<p>Trust — termination of.</p> <p>The will of Queen Emma, made October 21, 1884, appointing a trustee, bequeathed $2100 in four life annuities directing their payment by the trustee in monthly payments, $600 per annum to St. Andrew’s Priory for maintenance of four yearly scholarships of $150 each, and devised seven tracts of land to the trustee in trust to devote its rents, income and profits to payment of the annuities and scholarships, giving him power upon the death of all the annuitants to sell one or more pieces of land if the rest would in the opinion of the supreme court produce a yearly income sufficient for the scholarships, one-half of the proceeds going to the Queen’s Hospital and the other one-half to be invested by the trustee who was to pay the income to Albert Kunuiakea for life and the principal, at his death, to his issue, dividing any surplus income equally between the hospital and Kunuiakea during his life and, upon his death, his lawful issue; the trustee being further empowered in his discretion, after the death of the life annuitants, to sell the remaining lands investing the proceeds and, after payment of the scholarships out of the income, dividing., the surplus between the hospital and Kunuiakea for life and, upon his death, his lawful issue. Two of the life annuitants, whose annuities were $600 and $300 respectively, had died and also Kunuiakea without issue, leaving the hospital, which was the residuary legatee, the sole beneficiary, besides the other annuitants, of the trust property. The trustee has received $35,785 for land taken by the United States government which had previously brought little or no revenue and about $9000 in bonds and mortgages, proceeds of land taken for street widening,, yielding an income of over $406, the rest of the lands, valued at upwards of $68,000, yielding an income of over $5000 which is more likely to increase than decrease.</p> <p>Held: The court will not, at suit of the hospital resisted by tbe</p> <p>annuitants, declare the trust to he terminated in respect of property not required for the remaining annuities nor direct the trustee to transfer to the hospital such portion of the trust property as is not so required.</p>

<p>Landlord and tenant — summary possession.</p> <p>An action of summary possession against a lessee cannot he brought by one owning an undivided two-thirds interest of the lessor without alleging at least that the lessee is not entitled to the other one-third.</p> <p>Practice — appeal on points of law.</p> <p>On appeal from a district magistrate on the point of law that a demurrer was erroneously sustained the judgment will he affirmed if any one ground of demurrer, though not passed upon, was well taken,</p>

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

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

<p>Garnishment — procedure under sequestration statute.</p> <p>Under R. L. Sec. 2115A and 2115B a garnishee is entitled to any lawful set-off accruing before final judgment, but may be ordered to pay a sum equal to 25 per cent, of the salary of an employee accruing from and after judgment irrespective of set-off.</p> <p>Statutes — construction.</p> <p>The intent of the legislature is to be gathered from the language used, and general considerations of motive should not be resorted to unless the language is obscure or ambiguous.</p> <p>Set-oee and counter claim — store account of employee.</p> <p>Under R. L. Sec. 2698 the written consent of an employee to the set-off of his store account may be general and given in advance.</p>

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

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

<p>Equity- — jurisdiction.</p> <p>Equity lias jurisdiction to enjoin the diversion of water long-used under claim of right, upon proper proof of that right, which jurisdiction is not ousted by the creation of a statutory tribunal with authority to decide water controversies.</p> <p>Equity — parties.</p> <p>A bill is not demurrable because a person against whom no relief is sought and who, upon the allegations, asserts no right adverse to the plaintiff, has not been made a party.</p> <p>Equity- — pleading.</p> <p>A bill for an injunction is not demurrable because certain matters are alleged as averments of fact based upon information and belief.</p>

<p>Contracts — construction of condition.</p> <p>A condition attached to the transfer of a school that the grantee shall not teach or allow to be taught any religious tenet or doctrine contrary to those theretofore inculcated by the grantor and summarized in the correspondence, is not, as interpreted by surrounding circumstances and subsequent practice, broken by a course of study including morning and evening prayer, compulsory attendance at Sunday school with preparation of the International Sunday school lessons, and compulsory attendance at Christian Endeavor exercises.</p> <p>Contracts — construction of condition.</p> <p>A condition that a school shall be continued as an institution for the cultivation of sound literature and solid science is satisfied by a curriculum including classic and modern literature, geography, physiology, history, agriculture,. arithmetic, bookkeeping, algebra and geometry.</p> <p>Deeds — construction.</p> <p>A claim for a liquidated sum of money, arising as an alternative from the refusal of a third party to convey land upon condition broken, is not assigned by a previous conveyance of ail lands in or to which the grantor has any claim or demand.</p>

<p>Internal revenue — stamp duty — conveyance in consideration of corporate shares.</p> <p>A conveyance from certain persons' to a corporation organized by themselves in consideration of shares of stock of the corporation is chargeable with stamp duty under R. L. Sec. 1315.</p>

<p>New tbiaL' — transcription of stenographer’s notes.</p> <p>A new trial is not a matter of right when the stenographer fails to file his transcribed notes within the time specified m R. L. Sec. 1800.</p> <p>Assault and battery — dangerous weapon.</p> <p>An assault with a sheathed sword cane is an assault with a weapon obviously and imminently dangerous to life.</p>

<p>Master and servant — fellow servant.</p> <p>The foreman in charge of a gang excavating an earth hank is a fellow servant of the laborers and the employer is not responsible for injury to a laborer resulting from his negligence.</p>

This is a motion by the garnishee, the plaintiff in error, to have the record amended by eliminating therefrom the statement that it appeared by one Makekau as attorney, and by adding to it certain documents referred to during the trial. In response to the order in the writ to send up the record to this court the district magistrate certified that everything had already been sent up pursuant to a writ of error and an appeal previously issued and taken.

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

<p>Executors and administrators — unnecessary legal expenses.</p> <p>Estates of decedents should not be subjected to unnecessary legal expenses, and an attempted sale of the real estate of minors to pay unnecessary fees is expressly disapproved.</p> <p>Executors and administrators — sale of real estate.</p> <p>An order for the sale of real estate to pay debts is properly vacated, before confirmation of the sale, when it appears that it was made before the time for filing claims had expired, with no . showing that the personalty had proved insufficient, upon insufficient jurisdictional allegations, and with no notice to the heirs.</p>

<p>Highways — effect of lease.</p> <p>The leasing of public land under a right of purchase lease does not extinguish a highway existing across it, particularly when the highway is marked as an “old road” upon the government map referred to in the lease.</p> <p>Hioiiways — method of closing.</p> <p>A public highway can be closed only by the method prescribed by statute, and no representations by public officers would justify a land owner in closing it by fencing.</p>

<p>Mandamus — right of citizen and taxpayer.</p> <p>The right of a citizen and taxpayer to mandamus against public officers acting under a statute alleged to be void, based upon an anticipatory refusal, is not passed oil in view of waiver of the point by defendants and the sustaining of a demurrer on other grounds.</p> <p>Municipal corporations — creation in Hawaii.</p> <p>Sec. 56 of the Organic Act authorizes the creation of county and city municipalities by special act, superseding, in respect to Hawaii, the general prohibition of act of July 30, 1886, ch. 818. The provisions in Sec. 55 prohibiting the granting of private charters and special franchises do not apply to municipal corporations.</p> <p>Constitutional law — statute void in part.</p> <p>The qualifications for voters under the Municipal Act (S. L. 1907, Act 118) being in conflict with those defined by the Organic Act may be disregarded without impairing the validity of the remainder of the act.</p>

<p>Appeal from Clerk re Taxation of Costs.</p>

<p>Officers — employees.</p> <p>A clerk of court who made typewi’itten copies of the report of the tax commission working out of office hours is not an officer or employee of the Territory within the meaning of the appropriation bills.</p>

<p>Reserved Questions erom Circuit Judge, Eirst Circuit.</p>

<p>Appeal andjerror — amending record from district court.</p> <p>An appellate court has no power to amend the record of a trial court by original action. A party impugning tlie verity of a record should make application to the court in which the error is alleged to have occurred.</p>

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

<p>Appeals erom Tax Appeal Court, Oahu.</p> <p>Appeal erom Tax Appeal Court, Maui.</p> <p>Appeal erom Tax Appeal Court, Hawaii.</p> <p>Appeal erom Tax Appeal Court, Kauai.</p>

<p>Reserved Question prom Circuit Court, Fourth Circuit.</p>

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

<p>Territories — continuance of former law by Organic Act.</p> <p>R- L. Sec. 3151, defining and punishing fornication, was continued in force as one of the laws of Hawaii by the Organic Act, notwithstanding the Edmunds-Tuclier Act of 1887 covering the same subject.</p>

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

<p>Habeas corpus — detention of leper suspect.</p> <p>- Upon habeas corpus questioning the legality of the detention of a leper suspect, the only issue is the regularity of the proceedings under the statute, and the existence or nonexistence of leprosy will not be determined collaterally.</p> <p>Leprosy — construction of statute.</p> <p>R. L. Sec. 1122A applies to all persons in custody as leper suspects, whether arrested under warrant or not.</p> <p>Leprosy — proceedings under statute.</p> <p>A leper suspect in custody having selected a physician to examine her in accordance with the statute, and being thereafter required without legal cause to select another, cannot he held to have waived her rights; and subsequent x>roceedings with the second physician are void.</p>

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

<p>Reserved Questions prom Circuit Court, First Circuit.</p>

<p>Taxation — exemption of growing crops of pineapples.</p> <p>Under S. L. 1907, Act 77, exempting all property, real and personal, used in the cultivation and production of pineapples, provided that such exemption shall not apply to land in excess of forty acres, growing crops of pineapples on land in excess of forty acres are not exempt.</p>

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

<p>Appeal and error — findings in jury waived, cases.</p> <p>The findings of fact of a circuit court in a jury waived case cannot be reversed on exceptions where there is evidence on both sides and the issue turns upon the credibility of the witnesses.</p> <p>Ejectment — title from common source.</p> <p>When it appears in an action of ejectment that both parties claim title from the same grantor neither can take advantage of alleged defects in the chain of title prior to the common source.</p> <p>Appeal and error — general exception.</p> <p>A general exception to the decision of a court, jury waived, finding for the plaintiff, does not bring to the consideration of this court a possible defense disclosed by the evidence but not called to the attention of the trial court.</p>

<p>Divorce — jurisdiction.</p> <p>A libel for divorce cannot be brought in a circuit other than that in which the parties' last lived together as man and wife, notwithstanding a waiver of all jurisdictional objections.</p>

This is an action at law in the circuit court of the second circuit in which defendant’s motion for a continuance was denied. Tlie circuit judge deeming it advisable for a more speedy termination of the case allowed an interlocutory appeal to this court from his ruling and certified up to the same.

Exceptions from Circuit Court, Second Circuit. STATEMENT OP THE CASE.

<p>Costs — attorneys’ fees in assumpsit.</p> <p>Defendants’ attorneys’ fees under Sec. 1892 R. L. are not taxable in an action of assumpsit dismissed for failure to comply with an order to give security for costs.</p> <p>Costs — several defendants.</p> <p>In an action of assumpsit against several defendants separate cost bills are not allowed under tbe circumstances of this case.</p>

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

<p>Elections — pleading—petition.</p> <p>A petition in an election contest alleging that a certain number of ballots cast for the petitioner were not counted for him by the inspectors, and failing to allege that all the ballots were in the same condition as when cast, is sufficient on demurrer.</p> <p>Elections — validity of ballots.</p> <p>Rulings as to the validity of ballots, as held in Brown v. Iaulcea, 18 Haw. 131 Oornwell v. Kaiue, 18 Haw. 167, and Holstein v Young, 10 Haw. 216, are followed. The following ballots are held valid: Where the intersection of the cross was exactly upon the line between the marking spaces for two candidates, and where the arms of one of the crosses were unusually heavy.</p>

<p>Partition — cotenant’s right to, — allowance for improvements — finding that partition in kind is not possible.</p> <p>A cotenant is entitled to a partition of his share in the common estate, or a sale if partition would greatly prejudice the parties. The fact that there are minor cotenants unable to purchase does not affect such right.</p> <p>A cotenant cannot be allowed in case of sale for money expended for. improving a small portion but not materially enhancing the value of the entire estate.</p> <p>A finding that under the circumstances of this case a partition in kind is not possible is not reversed for error.</p>

<p>Elections — petition for contest — immaterial alleyations.</p> <p>Averments in a petition to contest an election, that in one precinct a certain number of persons voted after five o’clock when the polls should have been closed and that in another precinct a tally clerk was unlawfully allowed to remain in the polling place and by conversing in Chinese he attempted to and did influence Chinese voters, are immaterial unless further shown that these matters invalidated or changed the result of the election.</p> <p>Elections — contest by voters.</p> <p>An election cannot be contested by thirty voters unless they all have direct knowledge or information of one or more irregularities which would invalidate or change the result of the election.</p> <p>Elections — districts.</p> <p>Under the Municipal Act of 1907 there is but one election district in which the mayor is elected.</p>

<p>Motion to Docket and Dismiss Appeal.</p>

<p>Exception's from Circuit Court, First Circuit.</p>

<p>Principal and agent.</p> <p>The acts of an agent made with the knowledge and concurrence . of his principal cannot thereafter be repudiated by the latter.</p> <p>Tendee — effect of acceptance.</p> <p>The acceptance of an absolute and unconditional tender is binding.</p>

<p>Appeal from District Magistrate oe Hamakua, Haavaii.</p>

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

<p>Police regulation — county ordinance.</p> <p>A comity ordinance making it a misdemeanor to construct or erect any building or structure designed or intended to be used for a lodging or tenement house within five hundred feet of any public school premises is not an exercise of power granted to boards of supervisors by Act 39 S. L. 1905, Sec. 62, Par. 5, “To regulate by ordinance within the limits of the county all local police, sanitary and other regulations.”</p>

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

<p>Executors and administrators — liability for disposition of personalty.</p> <p>A bill originally charging conspiracy and fraud and now sought to be maintained against an executor for wrongfully disposing of a leasehold of the estate is properly dismissed upon the finding of the trial judge, warranted by the evidence, that the executor received consideration and was acting in what he believed the best interests of the estate.</p>

<p>Appeal from Tax Appeal Court, Eourtii Division.</p>

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

<p>Dower — right of widow of beneficiary of income for life.</p> <p>Under a trust to pay income to the testator’s widow and children and the survivor of them, and upon the death of any of the children to his or her children; the estate to be divided upon the death of the survivor of the testator’s widow and children, the widow of a child dying during the continuance of the trust has no present right of dower from the trust estate.</p>

<p>Statutes — corporations—stare clecisis.</p> <p>An ambiguous statute relating to incorporation haying been construed by the court and the construction subsequently affirmed, the court will not now adopt a different construction.</p>

<p>Easements — estoppel—sale of land with reference to intended roads.</p> <p>Where lots on a road shown on a map are sold with a representation that the road, then surveyed and staked out, but not taken over by the government, would be kept open, being an easy and convenient route to reach a park and from there the center of the town, the purchaser of the lots may enjoin the proposed closing of the road.</p>

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

<p>Submission Upon Agreed -Statement oe Facts. .</p>

<p>Municipal act — appointing power.</p> <p>Under the Municipal Act (Act 118 S. L. 1907) the board of supervisors has no power to appoint or employ employees of the road department.</p> <p>Municipal act — power of treasurer.</p> <p>Under Sec. 138 of the Municipal Act the city-and county treasurer may refuse to pay a warrant based on an illegal claim.</p>

<p>Contracts — consideration—compromise of doubtful claim.</p> <p>An agreement by the defendant to pay a certain sum as the value of a horse claimed to have been killed by defendant’s horse is based upon sufficient consideration.</p>

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

<p>Evidence — cross-examination.</p> <p>A witnéss may be cross-examined as to matters brought out on direct examination which would otherwise be inadmissible.</p> <p>Malicious prosecution — advice of counsel.</p> <p>In malicious prosecution the defendant may show that in causing the arrest of plaintiff he acted on the advice of counsel.</p> <p>Evidence — translation of interpreter.</p> <p>In order to impeach a witness the English translation of evidence which he gave in Chinese through an interpreter at a former trial cannot be testified to by one unacquainted with the Chinese language, even though the interpreter was absent from the jurisdiction, at least until it appears that there-was no one else available who could testify to what the witness said in Chinese.</p> <p>Malicious prosecution — instructions—probable cause.</p> <p>In malicious prosecution an instruction that “A person commencing a prosecution for a crime committed against his person or property is not required to act with the same impartiality and freedom from prejudice in drawing his conclusions as to the guilt of the accused as a person entirely disinterested would be,” in addition to other proper instructions as to probable cause, is not erroneous.</p>

<p>Ejectment — venue may he changed.</p> <p>In an action of ejectment the venue may be changed. R. L. Secs. 1647, 1649.</p>

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

<p>New trial — newly discovered evidence.</p> <p>Exception to granting a new trial on the ground of newly discovered evidence is not sustained the evidence appearing to he material.</p>

<p>Mortgage — injunction against foreclosing — statute of limitations.</p> <p>A bill to restrain foreclosure of a mortgage on the ground that the mortgage debt had been paid is properly dismissed upon a finding sustained by evidence that payments of interest in advance had been made to include a period within ten years.</p>

<p>Ejectment — verdict contrary to Taw.</p> <p>In ejectment a verdict for plaintiff claiming title by inheritance, the evidence showing that the paper title was in defendant, and the jury being instructed that plaintiff could not also claim by adverse possession, is contrary to law and must be set aside.</p> <p>Ejectment — death of plaintiff.</p> <p>Plaintiff in ejectment having died after a verdict in her favor and before defendant’s bill of exception was allowed, a motion in this court by plaintiff’s heirs to be substituted will be denied. Kiikea v. Keahi, 10 Haw. 505.</p>

<p>Courts — jurisdiction—effect of defective declaration.</p> <p>A garnisliee summons should not be quashed for lack of jurisdiction because the declaration omits some of the statutory allegations, there remaining sufficient to set the machinery of the court in motion.</p>

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

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

<p>Principal and surety- — discharge of surety 6y variation of risk.</p> <p>The plaintiff in a replevin action having alleged in its declaration and replevin bond the actual value of the property replevied to be $15,000, and the defendant in that action having given a return bond in double the amount reciting the valuation as alleged, subsequent amendments whereby the plaintiff increased the valuation to $22,000 and recovered alternative judgment for that amount are a variation of the risk of the sureties on the return bond and discharge them from liability.</p>

<p>Appeal from Circuit Jittk+e, First Circuit.</p>

<p>Motion for Allowance of Counsel Ekes on Appeal.</p>

<p>Forfeiture — lessee’s nonpayment of taxes.</p> <p>The forfeiture of a lease upon the failure for about two weeks to perform a lessee’s covenant to pay taxes may be relieved in equity.</p>

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

<p>Garnishment — government beneficiaries.</p> <p>By the provisions of ch. 136 R. L. the salary of a territorial senator is subject to garnishment to the extent of twenty-five per cent, for payment of his debts, and as the clerk of the senate pays the salary on the warrant of the territorial auditor those officials are properly served with garnishee process. The statute is not against the 14th amendment nor in conflict with Secs. 25 or 55, Organic Act.</p>

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

<p>Constitutional law — costs.</p> <p>The statute, Sec. 1893 B. D., is not unconstitutional and does not impair the obligation of a contract by requiring a plaintiff to pay the costs when a judgment recovered by him in the district court is reduced one-fifth in the appellate court although the costs exceed the sum awarded him for breach of the contract sued on.</p> <p>Appeal and ereoe — finding in jury waived case.</p> <p>There was evidence in this case to sustain the judge’s finding, jury being waived, of an express agreement for payment of a stated sum.</p>

<p>Appeal asd error — decision of land court, not appealable.</p> <p>An appeal to this court does not lie from a decision of the court of land registration.</p>

<p>Reserved Question erom Circuit Court, First Circuit.</p>

<p>Trusts — hill to declare.</p> <p>Bill dismissed on the evidence. Decree affirmed.</p>

<p>Courts — opinions, operation and effect of.</p> <p>Opinions like other instruments are to he read as a whole, eaeh part in the light of the remainder.</p> <p>Interest — time from which it runs.</p> <p>On rent accrued on an instrument in writing interest runs, under R. L., Sec. 2693, from the date when the rent became due, even though its amount was not expressed in the instrument.</p>

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

<p>Husband and wife — attorney’s fee for defending wife in divorce suit.</p> <p>The husband is not liable at law for the fee of an attorney in defending the wife in a libel for divorce.</p>

Reserved Question from Circuit Court, First Circuit. This was an action to quiet title in land. The presiding judge at the trial, after directing a verdict which the defendants claimed to be contrary to law, reserved for the consideration of this court the question “whether the verdict is contrary to law” upon the statement of facts submitted.

<p>Highways — ownership of fee.</p> <p>In the absence of ajiy showing to the contrary, land taken in 1902 and thereafter used as a public highway is presumed to be owned by the Territory in fee simple.</p> <p>Highways — statute as to trees in.</p> <p>R. L. Sec. 636, which limits the amount of damages to be recovered for injury to trees in the public highways, is constitutional.</p>

Motion to Dismiss Appeal. The plaintiffs move to dismiss the defendant’s appeal for want of prosecution. The appeal was taken November 9, 1908, the appeal bond filed November 17. An affidavit of the circuit court clerk was filed with the motion alleging that no request or order for a transcript had been made.

<p>Appeal and error — exceptions—transcript.</p> <p>A transcript of evidence not made a part of a bill of exceptions by reference or otherwise, cannot be considered.</p> <p>Id — Amendment of bill of exceptions.</p> <p>A continuance in this court for the purpose of applying to the trial court for an amendment of a bill of exceptions will not be granted in the absence of a showing of grounds for the amendment.</p> <p>Id. — Burden of sustaining error.</p> <p>The burden of sustaining allegations of error is upon the appellant. Exceptions for the determination of which a transcript is necessary must, in its absence, be overruled.</p>

<p>Infants — disaffirmance of deed.</p> <p>On the undisputed facts it is held as a matter of law that mere silence for two years and ten months after majority did not prevent an Hawaiian girl from disaffirming her deed made when fifteen years of age, and that she was not estopped from so doing by a foreclosure sale of the land during her minority.</p>

<p>Reserved Question jfkom Court oe Land Registration.</p>

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

<p>■ Pleading — action against Territory.</p> <p>In an action against the Territory on a contract made hy certain officers of the house of representatives the petition should show that they had authority to make the Same.</p>

<p>Piíoqess — return of service.</p> <p>A return of service is not invalidated by failure to show that it was made as required by statute by delivery of a certified copy of summons and petition.</p> <p>Husband and wife — contract for necessaries — scire facias.</p> <p>A married woman may contract to pay for articles which are necessaries, and confess judgment in an action therefor. A defense available in the action cannot be made in scire facias proceedings for the first time if there was jurisdiction over the case.</p>

<p>Jury — harmless irregularity in drawing.</p> <p>Advantage cannot be taken of an irregularity in the drawing of trial jurors unless it clearly appears that the party objecting was injured.</p> <p>Evidence — harmless admission.</p> <p>The admission of incompetent evidence of a mat,erial fact is an error without prejudice when the fact is proved by other competent and undisputed evidence.</p> <p>Counties — liability for unauthorized or prohibited acts of servant.</p> <p>A county is liable for injury to private property caused by the negligent act, done in the course of their employment, of road employees engaged to repair a public highway, even though the act was not authorized or was expressly forbidden by the county or was in itself a trespass on the land of third parties other than the plaintiff.</p>

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

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

<p>Pleading — action against Territory.</p> <p>In an action against the Territory on an unautliorided contract made by certain officers of the house of representatives the petition showing that such contract was ratified by the house is good on demurrer.</p>

<p>- Landlord and tenant — fire claim award.</p> <p>Under Act 15 of the Laws of 1901 a lessee whose only right with reference to the buildings on the demised land is to use them during the unexpired term of the lease, is not entitled to damages for the loss of such use.</p>

<p>Exceptions, bill or — extension of time for.</p> <p>An. extension ot time for filing a bill of exceptions can be validly granted only within the time allowed by statute or within any prior extension of time.</p> <p>The ruling on a motion for a new trial does not suspend the judgment or operate as an extension of time within which to incorporate in a bill exceptions otherwise barred.</p> <p>Id. — Dismissal of hill.</p> <p>If one or more exceptions are properly incorporated in the bill and presented in time, neither the bill nor the remaining exceptions can be dismissed.</p> <p>Evidence — sufficient to support verdict.</p> <p>The evidence in this case held sufficient to support the verdict.</p>

<p>Constitutional law — inheritance tax statute.</p> <p>The inheritance tax statute (Laws of 1905, Act 102) does not violate the United States Constitution.</p> <p>Taxation — inheritance tax — property within Territory.</p> <p>Under the inheritance tax statute shares of stock in domestic corporations, owned by a nonresident decedent, are property within this Territory and subject to the provisions of the act.</p>

<p>Appeal and error — appeals in insanity cases.</p> <p>Since the enactment of Act 149 of the Laws of 1909 no appeal lies to a circuit court from the decision of a district magistrate adjudging a person to be insane.</p> <p>Constitutional law — creation of hoard of commissioners of insanity.</p> <p>The provisions of Act 149 creating a board of commissioners of insanity are not in violation of Sec. 81 of the Organic Act.</p> <p>Insane persons — due process of law.</p> <p>The procedure prescribed by Act 149 relating to the examination and committal of persons alleged to be insane secures to such persons due process of law within the meaning of the constitutional requirements on the subject.</p> <p>Constitutional law — validity of Act 149 of 1909.</p> <p>Assuming that sections io and 14 are unconstitutional, the remainder of the act is not for that reason invalid.</p>

<p>Taxation — stamp duty — instrument assessable as agreement, not as mortgage.</p> <p>.An instrument effectuating a reduction in the rate of interest on bonds secured by an existing mortgage and a change in the optional time of payment and continuing the mortgage as security for the new bonds issued bearing the reduced rate of interest, should be stamped as an agreement and not as a mortgage.</p>

<p>Judgments — estoppel.</p> <p>In an action of ejectment a judgment lor defendants on demurrer is a bar to a second action for the same piece of land brought by the same plaintiff against the same defendants where the allegations in the complaints in the two actions are the same in all material respects.</p>

<p>Dower — mutual "benefit society fund.</p> <p>Under the by-laws of a mutual benefit society a member could designate to whom after his death it should pay a donation fund. The decedent directed it to be paid to his executor for the benefit of his estate. Held, the widow has no statutory dower in this fund although a part of the estate of the decedent.</p>

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

<p>Pleading — sufficiency of allegation.</p> <p>The declaration held to sufficiently allege (a) an express promise by an accommodation party to a promissory note to save the other accommodation party harmless in the transaction and (b) a consideration for the promise.</p> <p>Trial — instructions.</p> <p>A party cannot be heard to complain of the giving of instructions requested by himself.</p> <p>When the law is sufficiently stated in the instructions given, the refusal of- additional instructions is not error.</p> <p>Frauds, Statute oe — promise to save harmless.</p> <p>The promise to save the maker of a note harmless from any claim on the note is an. original undertaking and not within the statute of frauds.</p>

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

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

<p>Commerce, interstate. — original packages.</p> <p>Defendant received in Honolulu a consignment from California of five wooden cases each addressed to him and each containing five tins, each of the latter in turn containing twenty 5 tael tins of opium. Each of the 5 tael tins bore the marks and stamps placed on them by the custom house officer at San Francisco upon the original importation from Hong Kong, as required by treasury regulations. Held, under the decisions relating to the interstate commerce clause of the constitution, the wooden cases and not the 5 tael tins were the “original packages.”</p>

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

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

Statement of case. It is averred in the complaint that about February 28, 1906, “an account was stated by and between plaintiff and defendant whereby it was found that the defendant was indebted unto the plaintiff in the sum of $220.69 as balance due for goods, wares and merchandise sold and delivered by plaintiff to said defendant at defendant’s special instance and request, at divers times and dates prior to and including the said 28th day of February, 1906,” the complaint…

<p>Habeas corpus.</p> <p>Writ denied in behalf of a person confined at the insane asylum-it being discretionary in such case, the illegality of the confinement having already been considered in several aspects [In re Atcherley, 19 Haw. 535,) and other grounds of alleged illegality being named in a writ of certiorari now pending; the remaining grounds being reviewable, if at all, on error.</p>

Extract from minutes of Clerk of Supreme Court, “The supreme court desires to hear you tomorrow morning at ten o’clock upon the question whether a county attorney or deputy county attorney ought to be permitted to conduct the above case against the Territory. “Yours truly, “J. A. THOMPSON, “Clerk Supreme Court.” The chief justice called their attention to the fact that the attorney general would not for a moment allow his appointed deputy to appear in a proceeding against…

<p>Contract — teacher’s appointment — estoppel.</p> <p>An accepted appointment as principal of a scliool is by rules and regulations of the department of public instruction subject to removal or transfer whenever the efficiency of the department would thereby be promoted. An appointee by bringing action claiming that a removal in contemplation of transfer was wrongful is estopped by the pleading from claiming that the department had not acted by a quorum.</p>

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

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

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

<p>Reserved Question erom Circuit Court, First Circuit.</p>

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

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

<p>Reserved Question erom Circuit Court, First Circuit.</p>

<p>Contracts — right of action by creditor of promisee.</p> <p>G. & M. doing business as copartners UDder the firm name of “Hawaiian Office Specialty Company” purchased of plaintiff in 1905 certain merchandise for the purposes of the business- and in 1907 sold to P. the property of the business, P. making no promise to pay the debts of the concern. P. conducted the business under the same name and subsequently sold the property to defendant, the latter agreeing to pay a certain note of $2000 and “the other and remaining debts of the said Hawaiian Office Specialty Company.”- Plaintiff brought an action at law against defendant for the $2400. Held, that if an action is maintainable at all by. a creditor of the promisee against the promisor, the creditor not being privy to the contract or to the consideration, the very foundation of any right the creditor may have is the promisor’s contract and that in the cáse at bar plaintiff’s claim was not one of the debts “of the Hawaiian -Office Specialty Co.” at the date of the agreement and therefore there was no promise by defendant to pay it.</p>

<p>Statute — constitutional.</p> <p>Act 96 S. D. 1907. requiring a license fee of $5 for a fishing boat with a beam of 30 inches or more, is not in conflict with Sec. 95 Organic Act, declaring the fisheries in the sea waters of the Territory not included in any fish pond or artificial enclosure free to all citizens of the United States, or under Sec. 55 prohibiting the granting of special privileges or. immunities, or because it is discriminatory class legislation or unreasonably classifies boats required to be licensed or prohibits a useful occupation or denies equal and uniform protection of the law, although at the date of the act native Hawaiian outrigger ca,noes with a beam of less than 30 inches had mainly been replaced in fishing for profit with Japanese boats with a beam of 30 inches or more, since the act applies to all who use such boats for .profit.</p>

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

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

<p>Aiteai, and error — finding of fad l>y a court jury waived.</p> <p>There being evidence to sustain a finding of fact made by a circuit court jury waived, it will not be reversed.</p>

<p>Exceptions, bile of — presentation.</p> <p>A bill of exceptions must be presented to the judge who presided at the trial. "With certain exceptions not applicable in this case, presentation to another judge will not suffice.</p> <p>Id. — absence of judge.</p> <p>Mere absence of the presiding judge from the court house the judge being in the city and accessible, will not excuse failure to present to him a bill of exceptions.</p>

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

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

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

<p>Petition eor Rehearing.</p>