Volume 2 — Hawaii Reports

<p>An award of a lot of land by the Board of Land Commissioners, by metes and bounds, does not extinguish a right of way passing through a portion of such lot, and enjoyed by the defendant up to the time the award was made.</p> <p>A right of way merely is not, properly speaking, a claim for land, and it was not necessary for the preservation of such right that a specific claim should be presented to the Land Commissioners for confirmation.</p> <p>A nomuser of the easement for the term of five years would raise a presumption of an abandonment, particularly if the servient tenement had passed into the hands of a purchaser without notice of the easement.</p> <p>The owner of the dominant tenement must enjoy his right of way over the servient tenement in such a manner as not to interfere unnecessarily with the rights of the owner of the latter.</p>

<p>A babe possession, without title,may enable the plaintiff to maintain his action, as against a mere stranger or wrong-doer, but is not sufficient as against the Government purchaser of the land, who has acquired that general property, which draws to it the possession.</p>

<p>A Seaman leaving his ship in the course of the voyage, without objection from the Master, is not guilty of such a desertion as would work a forfeiture of wages earned antecedently to his quitting the ship.</p> <p>But having left the ship of his own free will, without just cause, such seaman is not entitled to any wages for the remainder of the voyage.</p> <p>Saits for damages, founded on trivial causes, to be discountenanced; but where the complainant makes out a clear case of wrong and injury, the Court would not hesitate in its discretion to award suitable damages.</p>

<p>The rule, in assessing damages for assault and battery, was stated by the Court to the jury in the charge, to be a just compensation, based upon the degree of bodily injury or suffering endured by the plaintiff, amount of physician’s bill, loss of time and mental suffering, if any; and if it appeared that the defendant had been actuated by malice, or committed the assault without provocation, then exemplary or punitive damages might also be awarded.</p> <p>The pecuniary ability of the defendant furnished no criterion by which to assess damages, where no appreciable injury had been shown, still the law would imply some injury and give a right to recover nominal damages.</p>

<p>An attorney and counsellor at law is admitted to practice during good behavior.</p> <p>It is not necessary to constitute contempt that the act should be done in open Court.</p> <p>Anything done intentionally to insult the Court, in the exercise of its legal powers, is a contempt, which may be punished summarily.</p> <p>Publications libelling Superior Courts may be punished as contempt.</p>

<p>' After essential services have been rendered to a vessel, yet the subsequent misconduct of the salvor may not only diminish the amount of his reward, but his entire claim may be forfeited.</p> <p>Persons attached to a ship, which has been wrecked, may claim as salvors, when their services exceed the proper duty of seamen, and when their connection with the ship has been defacto, or, by operation of law, dissolved.</p> <p>No fixed rule for the ascertainment of the rate of Salvage. The circumstances entitled to most consideration are, the value of the property saved, the extent of the service and the degree of merit and gallantry in accomplishing the enterprise.</p> <p>Except in extraordinary cases, a moiety of the property saved is the highest compensation, which Courts of Admiralty are in the habit of awarding.</p>

<p>The procuring of an order to tlie Marshal to dispose of the libelled property in the manner decreed by the Court below, is not such an act as bars the libellants’ right of appeal.</p> <p>An appeal in Admiralty may be taken at any time within six months after decree, unless said decree is fully executed.</p> <p>An appeal operates as a stay of execution, subject to the necessary order for the safe custody, delivery or security, or sale of the property proceeded against.</p>

<p>By the Laws of 1839, as subsequently amended by the organic acts of 1846, the entire fishing ground, lying between low water mark and the outer edge of the coral reef, or kuanalu, along the seaward front of an ahwpuaa of land» is the private property of the landlord or konohiki, subject always to certain piscatorial rights of the tenants or Jioaainas.</p> <p>The defendant’s brother having received from the konohiki a conveyance of a portion of land of the dhupuaa of Honouliuli, by metes and bounds, but not including any portion of the fishing ground adjacent; it was held, that he acquired a common right of piscary as a tenant or occupant of the ahupuaa, appurtenant to the land purchased, and subject always to the rights of the grantor.</p> <p>It would not have been in the power of the landlord to grant an exclusive right of fishery in the fishing ground, adjoining the land in question, and it was doubtful whether said landlord could convey her special rights therein, so as to divide the fishery into two or more parts, without infringing on the rights of tenants.</p> <p>Where the exact legal signification of the terms of a deed could not be expressed in Hawaiian without great difficulty, recourse was had to the English original.</p>

<p>The wife of a lunatic agreed to release her right of dower in the entire real estate of her husband, upon receiving a fee simple of certain premises in Honolulu; but afterwards applied to the Court that the said property be put into the hands of Trustees for the benefit of herself and children. Subsequently she filed a petition praying that the fee simple might be awarded to her alone.</p> <p>The Court decreed her a life estate only in the premises, and the remainder to the children.</p>

<p>The Court, under the circumstances, declined to take jurisdiction, remitting the case adforum loci contractus.</p> <p>The respondent filing a good and sufficient bond to the libellant.</p>

<p>No privity of contract exists between a public disbursing agent of the Government moneys and the officers or servants of the Government, among whom such funds may be ultimately distributed. ' Therefore, the money passing through the hands of such agent can not be attached by the process of garnishee, by the creditor of a Government official.</p>

The petitioner, David Kalakaua, sets forth in his petition, that L. H. Kaniu, a female chief of this Kingdom, deceased, at Honolulu, in the year 1848 ; that he was the adopted son of the deceased, and grandson of her brother ; and that at the time of her death she was possessed of a considerable amount of real property, which she bequeathed verbally, in accordance with ancient usage, to the petitioner, directing her husband, the late Kinimaka, to take care of the said…

<p>Mot in the power of a konohiki to alienate a single right, conferred by law to the tenant (hoaaina.)</p> <p>A hoaaina, holding his land by virtue of a fee simple title, is forever freed from the labor formerly due (under the ancient system) to the Government and the konohiki.</p> <p>If he performs such labor, it is neither by force of law or custom, but in fulfillment of a private contract.</p> <p>At the passage of the Act of the 6th August, 1850, the former rights of the hoaaina to pasture his animals on the lands of the konohiki, ceased to exist. The term people, as used in the seventh section of the Act of 1850, held to be synonymous with the term tenants, as used in the law relating to private fisheries.</p> <p>Whatever private agreement, as to pasturage, that may have been made between the tenant and the konohiki can not affect the rights of the konohiki’s lessee of land, unless he had special notice of such agreement and bouad himself to respect its terms.</p>

<p>A French seaman, one of the crew of a French ship, wrecked in the Arctic Ocean, was taken on board of an American whaleship, brought to the port of Honolulu, and was here shipped before the American Consul as boat-steerer on board the same vessel, and subsequently arrested by order of the American Consul as a deserter from the said vessel: Upon the petition of the Commissioner of France, he was brought before the Court on a writ of habeas corpus, claimed as a French subject, and alleged to be legally incapable, under the laws of France, of entering into the contract.</p> <p>Held, that the mariner's relation to the vessel was dissolved de facto and by operation of law, when the master abandoned his ship as a hopeless wreck, and that the mariner was at liberty to enter into a new contract of shipment on board the American vessel.</p> <p>Also, that the laws of France, admitting the seaman to be liable for a penalty under them for having enlisted on a foreign ship, can not have force to control the sovereignty or rights of any other nation within its own jurisdiction.</p> <p>Municipal laws must always be restricted in their construction to places and persons upon whom the Legislature have authority and jurisdiction.</p> <p>Penal laws are strictly local, but a different rule obtains in relation to contracts.</p>

<p>On appeal from the decision of Chief Justice Allen, at Chambers.</p>

<p>It is a general rule in the Admiralty, in cases of derelict, to allow a moiety of the property saved to the salvors.</p>

<p>The Guardian of the plaintiff, in 1848, previous to the enactment of Section 54 of the “ Act regulating guardians and wards,” passed on 4th August, 1851, rightfully exercised under the-law of this Kingdom, the control and management of the plaintiff’s property.</p> <p>A grant of a right of way over land of the ward by the Guardian, or any conveyance of any part of his estate, considered as of the same force and binding effect, as if done by the ward on arriving at full age.</p> <p>In the absence of any statutory requirement on the subject, no particular form is requisite in the dedication of land to the public use by the owner of the soil. It may be either express or implied.</p> <p>The question whether such dedication was made, is one of intent, to be decided upon the evidence, and if found to have been made for a special purpose, the public must take and enjoy the way secumdum formcm doni.</p>

<p>The chief mate of a whaleship, having been wrongfully dismissed from service by the master, before the commencement of the voyage, the amount of damages awarded was discretionary and controlled by the circumstances of the case.</p>

<p>Tino act of an executive officer can not be examined by mandamus, which invades the exercise of his judgment or discretion; but where the mode and requisites of the law, regarding the entry of goods, had been complied with, by the authorized agent of the importer, upon a refusal by the Collector to ' permit the entry, the Court held the remedy at law to be inadequate, and ordered a peremptory mandamus to be issued.</p>

<p>An error of judgment in not properly securing a whale which had been killed and anchored in the ice on the part of an officer of a whaleship, is not such a dereliction of duty as will warrant a forfeiture of wages.</p> <p>It is not every slight act of disobedience which will authorize such a penalty, but the Court must be satisfied that the seaman has been reckless and faithless in his duties and exhibited a habitual disregard for the interests of the voyage.</p>

<p>The voyage being described in tlie Shipping Articles as a whaling voyage, if, by the act of the master, it was changed to a trading or freighting voyage, and the original purpose was neglected to accomplish other objects, it is a violation of the contract, for which damages in the shape of wages may be awarded, according to the circumstances of the case, to the persons employed under the contract of shipping.</p> <p>An exchange of articles for provisions for the ship, or trading which does not interfere with the original objects of the voyage, held not to be a deviation, etc.</p> <p>Parol evidence cannot be admitted to vary the contract of wages in the Shipping Articles.</p>

<p>Although the general rule of law is, that merely gratuitous services afford no consideration upon which to raise an implied promise of payment, an exception is allowed by the maritime law in cases of salvage service, on account of its peculiar character.</p> <p>The assistance rendered by the libellants, who were part of a shipwrecked crew, to the respondents, on a shoal in the open ocean (outside the limits of any State or Government), in capturing seals ; held to be a maritime service, cognizable in the Admiralty.</p> <p>By the provisions of the Act of Congress of the United States, relating to the discovery of guano deposits, all acts done or crimes committed on any island, rock or key, upon which such deposits may be found, or in the adjacent waters shall be deemed to have been done on the high seas, on board of a merchant vessel of the United States, thus placing them by statute under the jurisdiction of Admiralty Courts.</p> <p>The value of the salvage service, rendered by the libellants, awarded upon a consideration of the facts and circumstances of the case.</p>

<p>According to the general rule, affidavits or declarations of jurors, showing misconduct in making up their verdict, will be rejected.</p> <p>And if in any exceptional case, affidavits of such a character should be admitted, the names of the jurors whose misconduct was relied on, would be required to be specified, so that counter affidavits by the opposite party might be filed. ■</p> <p>Repeatedly ruled by this Court, that a new trial will not be granted, for the reason urged, that the verdict is against the weight of evidence, unless it clearly appears that the verdict is so manifestly against evidence as to lead to the conviction, that either a mistake has been committed, or that injustice has been done through an abuse of power on the part of the jury.</p> <p>Proof of a new, distinct, and material fact, of which no evidence had been given at the former trial, though such specific fact had a bearing upon the main'faet put in issue by the defense; as for example, proof of certain declarations made by the plaintiff after his connection with the defendant had ceased, and shortly before the action was commenced, and which were inconsistent with the facts adduced by said plaintiff at the trial, held not cumulative, and the defendant’s motion for a new trial granted.</p>

<p>By the common law of this Kingdom, prior to the law approved 4th August, 1851, guardians had, from time immemorial, possessed and exercised the absolute right to dispose of the real and personal estate of their wards.</p> <p>As between the parties, acknowledgment and registry of a legal conveyance, are not necessary.</p> <p>An assignment of lands, belonging to the intestate, made by the guardian of the heir to the widow, which she accepted, together with some personal property in satisfaction for her claim of dower in the estate of her husband, forms a title in equity sufficient to repel the complainant’s claim, and would authorize the Court to decree a conveyance of the legal estate from the heir, if it were in him.</p> <p>Evidence to give a construction to an agreement inadmissible, it being clear and explicit in its terms and free from ambiguity.</p>

<p>The Oorn-t adhered to the rule, established in the case of Walker vs. Grimes, (1st Hawaiian Reports, page 34), that a motion for a new hearing, on the ground of newly discovered material evidence, must be supported by the affidavits of the newly discovered witnesses as to what they could testify.</p>

<p>A deed duly registered is good against a prior unregistered deed, if the second purchaser have no notice of the prior conveyance.</p> <p>Love and affection for brothers and sisters, nephews and nieces, or heirs at law, is a good consideration.</p>

<p>As to the legal age of majority at -which a person becomes bound by a contract for goods furnished him, the lex looi eontractus aut actus must govern.</p> <p>The father of the minor son can not be hold liable for articles furnished the latter on his own individual credit, nothing being shown to raise an implied obligation on the part of the parent.</p>

<p>Every seaman is bound to the business of the voyage, and to bestow his best efforts for the preservation of the ship and cargo.</p> <p>He is ordinarily excluded from claims as a salvor.</p> <p>When, however, his connection with the ship, in the capacity in which he shipped, has been, de facto, or by operation of law, dissolved,, he may claim as salvor.</p>

<p>Ik am, cases of salvage service, the amount tobe awarded rests in the discretion of the Court, guided by an enlightened judgment upon all the circumstances of the particular case; but where the saving of life was connected with the saving of property, although no personal peril was incurred by the salvors, yet the former act was regarded bythe Court inadjudicatingupon the measure of the compensation to be paid to the libellants.</p>

<p>I» levying upon a ship or any other chattel owned in common, the officer may levy upon the whole, but he can sell .oniy the individual share of the judgment debtor.</p> <p>A plaintiff in execution does not ipso facto become a co-trespasser with the Marshal or Sheriff, if the latter attaches and sells the property of a third party; but by giving bonds of indemnity to the Marshal and directing him to sell the entire chattel, including the property of said party, an'd by receiving only a portion of the gross undivided fund, renders himself a co-trespasser.</p> <p>Held also, that such plaintiff received a proportionate amount of the undivided share of such third party, who has a right to follow and reclaim it in the hands of such plaintiff.</p> <p>Where property is tortiously taken, a party may waive the tort, affirm the sale and sue simply for the proceeds, alleging that they came to the defendant’s hands.</p> <p>And in such aetion founded upon the tortious conversion of the property, not necessary to show privity between the plaintiff and defendant, as in cases purely ex contractu.</p> <p>A motion to set aside the verdict rendered in favor of a plaintiff and enter a nonsuit, is a motion addressed to the sound discretion of the Court, as controlled by legal principles.</p>

<p>IPisoper mode of proceedure set forth to entitle a party to the writ of error under the statute.</p> <p>Upon an assignment of errors, the errors must appear upon the record and not upon the copies of the papers served upon the party.</p> <p>Upon default being made, an exception to the verification of a petition comes too late when raised on a writ of error, but should be raised at the commencement of the trial and ought not to prevail, if raised after judgment, in any case, certainly not after judgment by default.</p> <p>A plaintiff in error can not assign for error matter which he might have pleaded in abatement. ^</p> <p>A party can not assign for error matter contrary to the record.</p> <p>Plaintiff’s petition and declaration must show a sufficient legal right of action in him to support a judgment in his favor, if not, any judgment that he may obtain is erroneous and without foundation in law.</p>

<p>After an agreement has been reduced to writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve or annul the former agreements, or in any manner to add to, or substraet from, or vary or qualify the terms of it, and thus make a new contract, which is to be proved partly by the written agreement and partly by the subsequent verbal terms engrafted upon what will be thus left of the written agreement.</p> <p>And whether the parties did make such subsequent agreement is a question of fact.</p> <p>"Where by the terms of an agreement or obligation, the interest accruing on a loan is payable at certain specified periods, a demand for the payment of the interest at the time it becomes due, must be shown before compounding of the interest can be allowed.</p> <p>Under a plea of the general issue, a defendant, when sued for interest due on a promissory note higher than the rate allowed by law, may advance by way of defense any matter of fact or of law, without being required to plead the statute specially.</p>

<p>Goods landed from a ship, reported to he unseaworthy (under a permit from' the Custom House), for the purpose of allowing a survey to be made on the ship, and the said goods, as well as the ship, being subsequently sold at public auction, without payment of duties:</p> <p>Held, that the property being once legally in the Kingdom, forfeiture cannot attach it} and the title of the property not affected in the hands of innocent purchasers:</p> <p>Held — That the transaction may be regarded as an incomplete entry, to b® perfected when the sale has fixed the valuation, la such a case the Collector can require security for the duties, whatever they may be, as ascertained upon subsequent enumeration and valuation at public sale.</p> <p>A peremptory mandamus issued to the Collector General of Customs, who had refiised to receive the duties tendered him by the purchasers of the Ml of a vessel, sold in bond at public auction, and which had been seized as for a.violation of the revenue laws*.</p>

<p>The certificate of an award of the Land Commission, with its accompanying survey, are admissible .in evidence, and when they appear to be genuine, are prima fade evidence of the right of the party in whose favor the certificate is issued.</p> <p>The term “ Kuleana noho pa,” as used by the Land Commission, means nothing more than a right of residence during the life time of the party in whose favor the award was made.</p> <p>The plaintiff originally presented a claim in her own name, but declared that she had no right in the land, being merely an occupant under the real heir. The Board granted an award to the latter, with the knowledge and acquiescence, as it appeared, of the plaintiff; upon an action brought, after the lapse of many .years, to recover possession of the land, it was held she.had no title in the premises, although her name, as owner or grantee of the lot, was incidentally used in the records of the Land Commission to designate the part where the heir should have his right of residence.</p>

The plaintiff is the widow of Charlie (Pihaole,) late steward on the American bark “ Frances Palmer,” who is alleged to have come to his death by the act of the defendant. She brought the action to recover damages for the loss thus sustained by her. The most important of the motions preliminary to the trial, was that to dismiss the cause for want of legal ground of action, which was debated at great length.

<p>Where it is stipulated in a mortgage of personal property, that the mortgager shall remain in possession until breach of the condition, and if before suca breach the mortgager is declared bankrupt, tbe mortgagee has a right to immediate possession of the mortgaged property, provided always that the mortgage is valid.</p> <p>A failure under the Law of Bankruptcy of 1848 defined to be a refusal or inability to make payment of just demands for ten days after maturity, whereupon the party may be declared bankrupt.</p> <p>Where a person had committed acts of bankruptcy more than ten days previous to being declared a bankrupt: Held, that any transfer of property then made (except upon a good consideration to a bona fide purchaser, having no notice of such insolvency or failure) is void by tbe statute, and the property must pass to the assignees for the benefit of all the creditors.</p>

<p>Ip one contract to labor for another for a specified term, and leave the service of the employer before the expiration of the term, without any cause attributable either to the employer or the act of Providence, he cannot recover his wages for the time he has actually labored.</p> <p>But where damages were claimed for personal suifering in consequence of the non-fulfillment of the contract by the employer, upon a cause made, the Court awarded the value of the labor actually rendered to the defendants.</p>

<p>In a case where error was alleged in the making of an award by the Board of Land Commissioners, the Court permitted evidence to be adduced, in order to ascertain whether such error existed or not upon the record of adjudication of the said Board, but not for the purpose of reviewing the decision of the Commission.</p>

<p>Writ of mandamus is a matter of discretion with the Court, to be exercised upon legal and equitable considerations.</p> <p>Proper remedy when an inferior tribunal refuses to act upon a subject properly brought before it.</p> <p>The Court will never direct an inferior tribunal how to. decide, but will require it to proceed to judgment.</p> <p>Will not lie to control or coerce the discretion of a subordinate tribunal.</p> <p>Not the proper remedy to correct irregularities in the proceedings ; they ought to be excepted to and made the basis of an application for a writ of error, or brought up on appeal in the ordinary way.</p> <p>When goods have been distrained by'the Tax Collector, under Section 503 of the Civil Code, and an order for their sale applied for, from the Magistrate, the proceedings on such an application are unlike a suit at law between parties, and not subject to the rules affecting such suits, and the Justices may adopt and pursue such a mode as may seem fair and reasonable in the discharge of their duty; full latitude allowed in the introduction of testimony, that the Magistrate may be informed as to the propriety of the Tax Collector’s acts, with a view to authorizing him to sell the goods distrained.</p> <p>Duty of the Magistrate to issue the order of sale, when the official requiring the order is proved to be the legally appointed Tax Collector, that the property seized is at least prima facie the property of the person by whom the tax Í3 due, and that it is a reasonable quantity, and that a legal notice of the sale is given.</p> <p>The application for an order to sell is directed to the sound legal discretion of the Magistrate, and it is his duty to exercise it.</p> <p>No Police or District Justice authorized to cite and apply the provisions of the fourteenth section of the Civil Code in any case whatever.</p>

<p>The master of a ship, wlio permits his mate to inflict an unjustifiable and excessive beating upon a seaman in his presence, is responsible to said seaman in damages for the assault.</p>

This action, in another form, was commenced in the Police Court, in February last, by a requisition upon Waterhouse to show cause why the Tax Collector should not sell certain of his goods, distrained for taxes. The District Attorney having then established such a case as he thought necessary, rested ; on which the counsel for Waterhouse, Mr. Harris, moved for judgment.

<p>As between the seller and buyer, it is not the mere inadequacy of price, unaccompanied by other circumstances, which will avoid the contract in a Court of Equity. But where a party has held a situation of confidence, and has acquired information respecting the value and extent of the subject of the contract, and has not imparted it to his cestui qui trust, and uses it to his own advantage, it is sufficient ground for the interference of a Court of Equity; as for example, where the excess of land, over and above the extent represented by the buyer, was so great as to shock the moral sense, the difference being as between 1200 or 1500 acres and 50,000 or 60,000 acres.</p> <p>Inadequacy of price may be sufficient ground for refusing to enforce specific performance of a contract, when it would not be for setting aside a sale.</p>

<p>A Party respondent, kept in custody under process of attachment for noncompliance with the final decree of the Court, sitting as a Court of Chancery, prayed to be discharged, alleging want of funds, and that he had remitted a large amount, subsequent to the filing of the bill, to his kindred in a foreign country.</p> <p>Held, that a contingent liability having arisen against the respondent by the institution of the suit, it was his duty to have kept his property in the Kingdom to enable Mm to meet whatever judgment might be awarded. Petition dimissed.</p>

<p>Where one of several part owners of the ship or ships, engaged in the whaling business, acts as agent to purchase supplies and outfits for the ships from third parties, he will not be permitted to take beyond a reasonable compensation for his services (or that agreed upon), nor to hold any profits incidentally obtained in the execution of his duty, even if sanctioned by usage.</p> <p>"Where said part owner had furnished the supplies for the said vessels from his own stock in trade at the lowest market rates, with the knowledge of and without objection by the other owner, the latter must be held in law to have waived his right to open up the accounts of said disbursements, they having been furnished him according to the usage of the business.</p> <p>Where said part owner, acting for the others, furnished them, from time to time,</p> <p>' with accounts of the disbursements, and charged interest on advances made by him in fitting out the vessels, without having first made a demand for contribution ; Held — That the furnishing of the accounts must be regarded . as notice to the said part owners and equivalent to an express demand, rendering them liable for interest from the time the accounts were so furnished. An agent or trustee can not become the purchaser of property confided to his care. Such sale not absolutely void, but voidable by the cestui que trust.</p> <p>A party can not ask for gains for which he has incurred no hazard and made no contribution.</p> <p>Although agents are not legally entitled to any incidental profits, arising from the management of the business confided to them by their principals, yet, where it appeared they had exercised due diligence in making their contracts of freightments, and made the most advantageous bargain they could, their principals could not vacate their contracts or make them liable, if at some other period, before or after, a less rate of freight had attained. And if put on board their own ships, the lowest rate of freight in the market only could be charged.</p> <p>A claim for the individual services of one partner can not be joined with the amount due the firm for services rendered by the partnership itself.</p>

<p>The defendant, claiming a right of way across the plaintiffs land, as being a highway used by the public at large from time immemorial, can not extend such right by using the path in a different or more enlarged manner than what had been the usual custom of using the same.</p>

<p>Where no fraud or corrupt misconduct is alleged on tlie part of the jury, the fact that the amount of the verdict was arrived at by a compromise or mutual adjustment among the jurors is not a ground for a new trial.</p> <p>Likewise, mistake in a verdict, in order to warrant the granting of a new trial, should be a pure mistake, apparent upon the face of the record, and not a mistake which is to be shown by the statements of any member of the jury, or other proof extraneous to the record.</p> <p>To grant a new trial on the ground of newly discovered evidence, it must appear that the evidence is material to the issue, is not cumulative, and that the party did not lose the opportunity to produce it by his own laches.</p> <p>Granting a new trial rests in the sound legal discretion of the Court.</p>

<p>A seaman to be treated as a deserter under the United States Act of 1790, must be shown to have quitted the ship without leave by an entry made in the logbook, and had been absent forty-eight hours, and by the general maritime law, to have left the ship with an intention to desert.</p> <p>The usage that a seaman is bound to remain eight days by the vessel after she is anchored in port in safety, must be sufficiently established, and also be definite and reasonable, otherwise his leaving the ship during that period, would not be regarded as a desertion.</p>

It appears from the return made to the writ of habeas corpus, that Charles Kauffman was arrested on the .1st of November instant, by the Marshal .of the Hawaiian Islands, in virtue of a written requisition from the Consul of the United States, representing him to be a deserter from the American whaling bark “ Gratitude,” whereof William Davis, Jr., is master.

<p>A Court of Equity will enforce the exercise of mutual good faith between parties, where they have respectively assumed relations towards each other, which peculiarly require it.</p>

<p>' It is the duty of the Courts of this Kingdom, sitting as Courts of Admiralty, to exercise jurisdiction in suits between foreigners, in cases of special necessity, and in order to prevent a failure of justice.</p> <p>The Court will exercise such jurisdiction in accordance with the general, well known principles which govern the Admiralty Courts of civilized nations, and under a sound judicial discretion, based upon the circumstances of each particular case.</p> <p>Where the libel contained allegations of peculiar injustice and long continued injury, and the domestic forum was in a distant country where it would be •impossible to procure the testimony of witnesses, to deny its consideration would be a dereliction of duty to the laws of the sea, and a virtual denial of justice, and the protest of the Consul of the United States to the exercise of the jurisdiction, in such a case, overruled.</p> <p>By a plain construction of the twenty-first article of the French treaty, the jurisdiction of crimes, committed on the high seas, as well as of marine torts, “ as causes of actions for damages ” on the Admiralty side of the Court, remains as it was before the treaty was made.</p> <p>A tort, disconnected from and having no relation to the internal order of the vessel is not within the purview of the stipulation of the French treaty.</p> <p>In the meaning and intent of the French treaty a seaman, shipping on board of a foreign vessel, does not become, by that act of shipment, a citizen or subject of the nation to which said vessel belongs.</p> <p>To give the Consul exclusive cognizance of any tort or crime, committed on board of any vessel of his country, while in the ports of this Kingdom, the contending parties must be of the same nationality as that to which the vessel belongs.</p> <p>There is no such comity of nations as requires the approval or consent of the Foreign Bepresentative to confer jurisdiction; there may be cases where such acquiescence would be indispensable and proper, and others where it is not necessary, from the inability of the Consul to afford redress, and where a failure of justice would ensue.</p>

<p>Respondent filing no answer, ,tlie libel was taken pro confesso, and libellant permitted to support his libel by ex parte proofs.</p> <p>The protest by the Consul of the United States to the jurisdiction, overruled on the same grounds that were assigned by the full Court in the recent case of Enos vs. Sowle.</p>

<p>In a question of jurisdiction by the Courts of this Kingdom under the 21st Article of the Treaty with Prance, the right of the Court to'take jurisdiction at its discretion, is governed as well by the general principles of maritime law as by the pTovisions of the Article.</p> <p>The approval of the foreign Consul does not confer jurisdiction, but simply invoices, or assents to, the exercise of the jurisdiction which is inherent in our Courts.</p> <p>The jurisdiction of the Courts to take cognizance of civil controversies between foreigners is affected to some extent by the French Treaty. But to render it necessary to have the consent or approval of the Consul, that the Court may take cognizance of the case, it is not only essential that the contending parties should be exclusively of the same nationality, but they must still be attached to the vessel by the terms of the contract of shipment.</p> <p>If the complaining party has been discharged or forced to leave the vessel, having a just cause of action, while attached to the vessel, said party may maintain a suit in the Courts of this Kingdom, if they are willing to entertain it, unless he has bound himself by his contract of shipment to resort to no tribunals but those of the home forum.</p> <p>The Courts of this Kingdom, sitting as Courts of Admiralty in common with Admiralty Courts in the United States and Great Britain, may exercise jurisdiction in cases like the present, where the termination as well as the inception of the contract is at the ports of these islands, and where an entire failure of justice would ensue, should the complaints be dismissed.</p> <p>Protest of the Consul of the United States overruled, and cause remanded for hearing.</p>

<p>In a case of culpable rashness in the conduct of the master of a vessel, resulting in hardship and personal suffering to the complainants, (belonging to the crew of said vessel,) as well as a loss of time and breach of the contract of shipment, the owners of the vessel were held responsible in damages, for the acts of the master, as being within the scope of his authority, the same as if the acts had been committed by the owners themselves.</p> <p>Where, by the fault of the master, a vessel was detained in the Northern Seas, so late as to render it impossible to return to the port where the contract of shipment was made, and whereby the term of service had expired, the Court fixed a date at which the accounts under the contract should be closed, and decreed that a quantum meruit should be paid to the libellants for the ensuing period of service, forming a reasonable extra allowance, to be based upon the shares they were to receive during the first term of service.</p> <p>Where a charge is based upon a usage, the usage must be satisfactorily proven, before it can be allowed.</p>

<p>A receipt given by a seaman, in full of all demands, is open to explanation, and the degree of weight to be attached to it must depend upon the circumstances under which it is given.</p>

<p>A Brand, of itself, is not conclusive evidence of tlie ownership of an animal any more than is the fact of an animal being unbranded.</p> <p>The law regulating the brands and marks of private owners, is not intended to apply to the wild herds roaming on the sides of Maunakea, which are universally recognized as the “mountain cattle of the King and Government.”</p> <p>These cattle cannot be regarded as animals fera natura, and therefore do not belong to that class recognized by the law as not being the subject of property-in any person until reduced to possession by the captor.</p> <p>The grantee of those unbranded mountain cattle from the Government, can not be allowed to enter upon the lands of private parties for the purpose of capturing these cattle, without the consent of the owners of such lands; nor can he convert the cattle of private owners because found unbranded upon lands leased by him.</p> <p>The owners of private lands have no right to convert the said unbranded cattle of the King and Government because found upon their lands.</p>

<p>Where a permissive use of a right of way only has been allowed, not amounting to a dedication or prescription, the owner of the premises may revoke the license at his pleasure, and resume the possession of the locus in quo.</p>

<p>Where the defendant, as master of a packet running to California, had conveyed a debtor of the plaintiff out of the Kingdom, without a passport, as required by Sec. 651 of the Civil Code, and for justification pleaded that he had no knowledge of the indebtedness, nor of the debtor being on board: Held, that unless a careful diligence had been shown, such as the thorough and faithful search of the vessel, previous to passing the boundaries of the jurisdiction of the Kingdom, the master, under the provisions of the statute, would be liable for the debt.</p>

<p>Under the last clause of the 84th Article of the Constitution of 1852, declaring the judicial power of the Courts of this Kingdom to extend to all cases of Admiralty and maritime jurisdiction: Held, that it embraces two great classes of cases, viz: torts and contracts, the jurisdiction in the first depending upon locality, and in the last upon the nature of the contract; and also that it comprises casps arising under the general maritime law of the world, together with those appertaining especially to the admiralty jurisdiction of the nation, which last branch may be enlarged or circumscribed by the Legislature from time to time. -</p> <p>A party plaintiff may appeal to a Court of Admiralty for redress, if the act prohibited is a marine tort and the remedy prescribed by the statute is such as a Court of Admiralty is competent to afford, although a Court of common law may also have concurrent jurisdiction of the matter.</p> <p>Where the master of a vessel conveyed a person out of the Kingdom without a passport in contravention of law (Section 651, Civil Code): Held, that a creditor of such person conveyed away might institute a suit on the Admiralty side of the Court against the master to recover his debt, though as against the master, the like remedy might be sought at common law.</p>

<p>The liability of the master of a vessel for tbe debts of passengers, departing this Kingdom without passports, attaches when he has conveyed them across the exterior line of the exclusive jurisdiction on to the high seas.</p> <p>If a person be taken on board, beyond such boundary, with the preconcert and complicity of the master, or any one under his command, said collusive acts being prior to passing the limit of exclusive jurisdiction, such conveying away of the debtor would be a violation of the law, Sec. 651, Civil Code.</p> <p>A thorough and faithful search of the vessel previous to passing the boundaries of our jurisdiction, with a view to guard against persons making their escape : Held, to be a compliance with the law.</p>

<p>Where the legal meaning and effect of the language used by the party, who prepared the instrument offered for Probate, differed materially from that of the language used by the testator in delivering his instructions : Probate of the instrument refused,</p> <p>Besides mere formal proof of execution, the conscience of the Court must be satisfied that the instrument propounded.is the last will of a free arid capable testator.</p>

<p>An agent executing his authority within the usual scope of the business en- . trusted to him, binds the principal by his acts.</p> <p>If 'there are any express or unusual limitations, binding the exercise of such authority in the ordinary course of the business, they cannot affect the right of the purchaser, who dealt with the agent in -ignorance of them.</p> <p>An authority to sell, implies an authority to sell on a credit, if that be usual. The allegation of fraud is not su&cient; it must be proved, not surmised. The Court will be cautious in sustaining charges of this character.</p>

<p>In cases of shipwreck, seamen are entitled to recover their wages out of the proceeds of the wreck saved by them.</p> <p>Where it is proved to the Court that the only security for the seamen is their lien on the property within our jurisdiction, the voyage being broken up and abandoned, the Court dispensed with a fulfillment of the conditions of their contract of shipment, as to the mode and time of payment, and decreed them a compensation equivalent.</p> <p>Seamen are bound to exert themselves to the utmost to save the vessel and cargo from peril, and as a general principle are not entitled to any consideration for such service, beyond the means'furnished by the property saved for the payment of their wages.</p> <p>As recognized in tlie case of tlie ship “ Natchez,” decided by this Court, (Hawaiian Rep., Yol. 2, p. 34,) before the seaman can be entitled to any extra remuneration for services, in saving the vessel and property, his relation to the vessel must be dissolved, and the obligations of his contract cease to be binding, as by an abandonment of the voyage, etc.</p> <p>Courts of Admiralty will re-examine, if necessary, settlements made with sear-men, and decree equitable compensation for services rendered, notwithstanding a receipt in full may have passed from the seaman.</p>

<p>The right of stoppage in transitu is properly exercised only upon goods which are in passage and are in the hands of some intermediate person between the vender and vendee in process, and for the purpose of delivery.</p> <p>The right to retain possession of goods, is controlled by the Law governing the' right of lien; but the right to regain possession, when parted with, is controlled by the Law of stoppage in transitu.</p> <p>Where a party had given his promissory notes in payment for the purchase of goods, and the goods thereupon set apart in the vender’s warehouse in a place hired by the vendee, and allotted for the reception of his goods: Held, that an absolute transfer, both of the property and possession took place, putting an end forever to the vender’s lien; and that the Plaintiffs as assignees of the purchaser were entitled to the goods.</p>

<p>A public officer, acting in his official capacity as agent for the Government, is not personally liable on contracts negotiated by him within the line of his public duties.</p>

Messrs. Bates and Montgomery, for defendant, having filed a demurrer, on the 28th of February last, to the bill filed in this suit, the points were argued before the Chief Justice on the 2d and 4th of March following, and on the 6th of that month the Chief Justice delivered his decision as follows : This is a bill in Equity, in which it is alleged there was an agreement in writing between Kalaimoku and said defendant, in the following terms, viz : “ Know all men by these…

<p>Where it appeared that the magistrate had competent jurisdiction to try and decide the case, the Court refused to inquire into the legality of the sentence on a writ of habeas corpus, further than as to the power to pass the particu-’ lar sentence.</p> <p>Whether a sufficient ground was laid in the information to authorize the Police Magistrate to issue a warrant of arrest outside of his own particular district, can not be inquired into, on a writ of habeas corpus, after conviction and judgment passed, though it might be on a commitment before trial.' irregularities in the proceedings in the lower Court, should be availed of before judgment, or made the ground of an appeal.</p> <p>In future, before allowing the writ (habeas corpus) to issue, in cases like the present, the Court will adopt the practice of granting a rule to show cause.</p>

<p>On appeal from the Circuit Court for the Island of Hawaii.</p>

<p>A party having been arrested as an absconding debtor, under Section 953 of the Civil Code, and affidavits having been filed both by the defendant and plaintiff, embracing counter allegations, as to the validity of the claim, the Court proceeded to hear evidence in order that it might judge whether, prima facie, there was any indebtedness to the plaintiff by the party arrested.</p> <p>When the writ of ne exeat regno is prayed for against a departing debtor, it is not necessary to allege that the defendant is going abroad to avoid payment of the debt, but sufficient to allege that the debtor is about to quit the Kingdom, without leaving any provision for the payment of the debt.</p> <p>By a strict construction of the terms of the Statute, if he secretes.his property, or transfers it to third parties, or is making an effort to remove it out of the jurisdiction, or if the debtor is about to quit the Kingdom, it is a seeking to avoid the payment of the debt, and the Court is empowered by proof of either of these acts to order the.arrest and detention of a debtor, and may at its discretion, on the examination of the circumstances of each case, decide whether it is reasonable that security should be given to abide the result of a suit, and pay the amount of such judgment as may be rendered.</p> <p>The Court will examine, if the party arrested desires it, into the merits of the case, in order that he may not be detained on a groundless claim and for a malicious purpose. Upon such examination the Court will ascertain whether the rights of a party are endangered by his debtor leaving the Kingdom; and if they are, the process of arrest is legitimate and proper.</p> <p>The Passport Law sustains the above construction of the Statute. (Article 41, Civil Code.)</p> <p>The writ is a writ of right when the provisions of the Statute are complied, with.</p>

<p>It is the duty of seamen to render all the aid in their power to the ship in distress; but where the ship, after being taken into port, was found to be so much injured as to be rendered unseaworthy, so that'material repairs were necessary, held that the seamen were entitled to a reasonable compensation beyond their ordinary wages, for labor done in repairing and in the necessary-preparation for repairs,- such as unlading and restowing the cargo on board, at the port where the repairs were made.</p> <p>No discrimination, in this respect, between seamen engaged in the whaling ser- • vice and those in the merchant service.</p> <p>Duty of owners to keep the ship in a seaworthy condition, and when she ceases to be so, they must incur the expense of repairs and not impose it on the seamen.</p> <p>The principle that it was not customary to pay for the extra labor of the seamen in repairing the ship, unless she was insured, regarded as unsound.</p> <p>To make a statute forfeiture of wages, on account of desertion, under the Laws of the United States, it is indispensable that the Log Book should contain an entry of the name of the seaman on the day when the absence takes place, and that he is absent without leave.</p>

<p>To limit the jurisdiction of the Court sitting as a Court of Admiralty under the provisions of the 21st Article of the Treaty with France, in suits brought by foreign seamen, it must appear that the term of service, under their shipping contract, has not yet expired, within the meaning of the decision in Young vs. Phillips, (Hawaiian Reports, Yol. 2, page 349.)</p> <p>The contract being determined by its own terms, the seamen cannot thenceforth be arrested under treaty stipulations upon the Consul’s requisition.</p> <p>The cause of difference giving rise to the suit must relate to the internal order of the vessel, and the contending parties be exclusively of the ship’s nationality to affect the jurisdiction of the Court, under the provisions of the 21st Article of the French Treaty.</p> <p>l'n a suit between American citizens brought to recover wages claimed from an American vessel, the Court adhered to the principle which had been repeatedly declared by the Courts of this Kingdom, sitting as Courts of Admiralty, that they would entertain jurisdiction, where it was for the common benefit and convenience of the parties interested, and when a remission to the distant domestic forum would be attended with great delay and probable loss of material testimony.</p> <p>International comity, in certain cases, requires tke Oourts of tkis Kingdom to exercise jurisdiction as a friendly act to tke citizens of a friendly nation.</p> <p>It is incumbent upon tke masters or agents of wkaleskips, to make up, at tke expense of tke owners, tke accounts between the ship and each officer or seaman of tke crew, and any usage to tke contrary deemed unreasonable and would not be sustained by tke Court.</p>

<p>Protest of American Consul and Commissioner of the United States, against the jurisdiction of the Courts of this Kingdom, sitting as Courts of Admiralty in a case like the present, overruled.</p> <p>Held, that the exeroise of jurisdiction is discretionary in entertaining suits between foreigners, but in a case of special necessity to prevent a failure of justice, the duty is imposed to exercise the jurisdiction.</p> <p>Distinction drawn (as to the necessity of exercising jurisdiction) between engagements entered into and to be-terminated within this Kingdom, and those made at a foreign port for a cruise to end at the same port.</p> <p>The provisions of the 21st article of the French treaty do not lessen the jurisdiction of the Courts in adjudicating upon contracts for mariners’ wages, according to the general principles of the maritime law affecting such contracts.</p> <p>Although the jurisdiction of crimes and misdemeanors has been yielded, to a certain extent, by the treaty with France ; still, the case of mariners’ wages, arising from a contract terminating here, does not come within what is meant _ by matters of difference touching the internal order of the vessel as expressed in the treaty, and would not, therefore, in such a case, limit the jurisdiction of the Court.</p> <p>A demand, on the part of the libellants, for a settlement and payment regarded as indispensable before suit brought.</p> <p>When the parties agree to settle at the Consulate, and the master or agent of the ship deposits there the money due the seamen, presenting a true account of the catehings of the vessel, he has complied with his duty.</p> <p>The question of the commission, charged by the Consul for such settlement at his office, and deducted by him from the amount to be paid the seaman, is a matter between the seaman or his agent and the Consul.</p> <p>Judgment of the Court below, so far as it relates to the question of jurisdiction, confirmed ; but reversed wherein the claims of the libellants are sustained — Robertson, J., dissenting from the latter portion of the judgment of the full Court.</p>

<p>Where parties liad transacted business with each other in a loose manner, rendering it difficult for the Court to measure the amount of pecuniary damage, sustained by the party invoking its aid, the Court, sitting as a Court of Equity with the consent of the parties, adopted the principle of cy pres in assessing the damages to be awarded.</p> <p>A party complainant having retained accounts furnished him by the defendant, for a great length of time, without objection as to their correctness, having had opportunity, was held to have waived the right to make such objections, and said acts were regarded as conclusive against him.</p>

<p>Seamen in the whaling business, before bringing a suit for their share of the proceeds.of the voyage, are required to make a demand of settlement, and it is the duty of the owner or his agent to make out the accounts, the accurate knowledge of the data of settlement being with him and not with the seamen,</p> <p>in the absence of any contract with the seaman, the lay should be the highest out bf the port for good men in the same capacity.</p> <p>The libellant having quitted the vessel during the cruise without reasonable cause, but at the same time with the acquiescence of the master, was held entitled to his share of the catchings in the proportion of the time"he was engaged in the service to the whole time of the cruise.</p> <p>It is a custom applicable to American whaleships, that in the absence of a stipulated price, the prices for the products of the whale fishery fixed by the American Consulate at Honolulu are to govern in the settlement of the voyages of seamen who ship to be discharged at this port.</p>

<p>One of the partners of the firm having rendered extraordinary services in winding up the affairs of the concern, consequent upon the death of a partner, and during the absence of the third or remaining partner in the United States, a remuneration for extra labor, not in the nature of a commission, but as for extra expenses incurred, was allowed.</p>

<p>General demurrer to the bill; that at the early settlement of these Islands by foreigners, there was no law of inheritance: overruled — the Court being of opinion that there was a common law of inheritance liable to be modified or defeated, but perfectly good until such an event.</p> <p>An inheritance recognized by the King, as alleged in the. bill, would be valid. A tenant can neither deny his landlord’s title in ejectment, nor set up an outstanding or paramount title in himself or a third party; but he must first restore the possession which he obtained from his landlord, and then as plaintiff, he may avail himself of any title he may have acquired.</p> <p>General demurrer overruled, when there is any equity in the bill.</p> <p>An eviction under a paramount title must take place before the lessee or grantee can avail himself of it as a defense on his own contract.</p>

<p>In the year 1827 there was no fixed or uniform law of inheritance, such as has existed for the last twelve or fifteen years; and, although the fact of a general transmission of the possession of lands seems well established, yet such transmission was not governed by well defined rules or uniform custom.</p> <p>The complainant, as the representative of the original owner of .the premises in question, not having ever obtained a Land Commission Award of the said premises, was considered as entitled to a fee simple patent from the Government upon payment of the usual commutation, said patent to be based upon the award made in favor of her co-tenant and bailiff.</p> <p>Under the agreement made by the respondent with the ancestor, by which the respondent should occupy and improve a certain wharf premises in Honolulu, and account and pay over one half of all the monies received for the use of the said wharf and premises to the original owner, his heirs, etc.' — one half of the expenses in repairing, improving, etc., to be borne by each; the respondent was regarded as a co-tenant. Also, having recognized, for thirty-four years, the successive heirs to the property and those claiming an interest by making payments to them from time to time, and suffering no disturbance in his possession, the Court refused to adjudicate upon what might be the rights of the Government or any third parties — no such counter claims being before the Court — and the heirship of the complainant having been proved, the respondent was decreed to account to her for all the monies received for the use of the said wharf and premises.</p>

<p>The writ of injunction must be specifically prayed for in the bill or it will not be granted.</p> <p>When the allegations of the bill are based upon the fraudulent conduct of a party, an injunction may be issued as a matter of precaution, although an intention to dispose of the property at issue can not be proved.</p> <p>The granting or refusal of an injunction rests in the sound discretion of the Court, in view of the nature of the case and of the whole allegations in the bill.</p> <p>The rule admitted that it is usual to dissolve an injunction, where the whole merits of the bill are satisfactorily denied by the answer, yet there exist exceptions to this general doctrine ; and after the coming in of the answer, the question of dissolution of a special injunction is one, addressed to the sound legal discretion of the Court.</p> <p>If by the bill and answer questions of law were involved of a doubtful character the injunction should be sustained.</p> <p>Proceedings at law imposing restraint upon the disposition of property as authorized by the statute, not considered as analogous to the issuing of an injunction in equity.</p> <p>In the present case, the facts alleged in the answer, being derived from personal knowledge and in direct and explicit denial of the allegations in the bill, the injunction was dissolved.</p>

<p>A, the owner of a valuable estate, conveyed it to B for a nominal consideration, to be held in trust by the latter for the benefit of the complainant, the 'aforesaid A — B to manage the same, and to receive for his compensation as manager one-third of the profits arising from the estate, and the complainant the remaining two-thirds. B, after holding the estate for a term of years, at the request of the complainant, executed a deed, also for a nominal consideration, to 0, the complainant’s brother, the respondent in this suit, the habendum in the said deed, reciting that C was to hold the property in Wee manner as B had held the same. There was a verbal agreement that the complainant should draw from the receipts of the estate a certain sum per month, and that the respondent should receive for his services one-third of the profits of the business, and complainant two-thirds; the monthly payments to be accounted for on the final settlement. The respondent paid the monthly stipend for a space of time, but made no settlement; latterly, the respondent refused to pay the complainant anything, and denied that he had any interest in the estate.</p> <p>The complainant prays that an account may be taken, and the amount due him ascertained, and the respondent decreed to pay the same, and that he be ordered to convey the estate to the complainant.</p> <p>Held: that a resulting trust may be established by parole evidence, although the grantee denies the trust in his answer; but the evidence must be full, clear and satisfactory.</p> <p>The general rule of law is, that parole evidence is not admissible to create or modify interests in real estate, except in cases of fraud or mistake. But trusts, resulting by operation of law, are expressly excepted from the statute of frauds.</p> <p>A trust may be established, when the consideration of a deed moves, as ,in this case, from the complainant, and not from the grantee; and the facts on which the trust arises may be shown by parole proof, in opposition to the language of the deed.</p> <p>The trust being proved, parole evidence is also admissible to define its nature and operation.</p> <p>The cestui que trust is regarded, in a Court of Equity, as the real owner, for the beneficial interest vests in him; and the respondent purchasing th'e estate with the knowledge of the trust, the conveyance would be subject to it.</p> <p>The beneficiary has a right in equity to dispose of the estate, and such disposition is binding on the trustee. .</p> <p>The main question in determining whether the trust has been created, is upon the sufficiency of the evidence by which it is sought to be established.</p> <p>The cestui que trust having resumed the legal ownership of the estate from the hands of the first trustee, and directed to whom a fresh conveyance should be made, without consideration: Held, that a resulting trust arose in favor of the complainant.</p> <p>Despondent decreed to convey the estate and render an account of his administration.</p>

<p>The ancestor agreed to pay a certain stipulated sum for one-balf of the estate, and take upon himself its sole management for the term of five years, without remuneration, one-half of the net annual proceeds of the estate to be applied in payment of the purchase money and interest, but died after the original term had expired, without having been able to liquidate the agreed price for his moiety : Held, that it was an entire contract, and must be fulfilled before any advantage could be claimed under it by the heir, and consequently that no proportionate part of the estate could be conveyed to the heir, as for a fulfillment pro tanto, arising from labor performed by the ancestor or partial payments made.</p> <p>The opportunity of paying the amount due on the original contract was afforded the complainant, in order that she might avail herself of the benefit to be derived from it.</p> <p>There are rights of moral or imperfect obligation appealing to the sense of justice of the party, but which, under certain circumstances, can not be enforced at law or equity.</p>

<p>Real Estate, purchased with partnership funds, and held and dealt with as partnership property, will, in equity, so far as may be necessary, be treated as • personal property.</p> <p>The share of a deceased partner in the proceeds of the real estate of the partnership, sold for the purpose of a distribution of assets, between the representatives of the deceased partner and the surviving partners, regarded as real estate in the hands of the eseentors, and to be dealt with as such under the provisions of the deceased partner’s will.</p>

<p>The law prohibiting the sale of intoxicating drinks to natives of this Kingdom, contained in Section 1, Chapter 42d of the Penal Code, held to be constitutional and in accordance with the policy of Hawaiian legislation from the earliest foundation of the present system of Government.</p> <p>Likewise that the law does not contravene the obligations entered into by the Government in its treaty stipulations with foreign powers.</p>

<p>The libellant claimed ten months wages as master of a vessel, and the respondent denied any indebtedness. An account in any further detail is unnecessary for the purpose of making a demand.</p> <p>A careful consideration is given to the testimony in relation to the alleged agreement for sailing the vessel.</p>

<p>The testator being unable to read the will himself, and there being no express proof that it was read over to him, the o?uis probandi is cast upon the proponent of showing that the testator had a knowledge of the contents, from which he may fairly be considered to have discharged himself, upon proof of the due execution of the will and the full capacity of the testator, in the absence of any evidence of undue influence or fraud.</p> <p>The fact that the writer of the will was himself a large beneficiary under it, over and above the portions bequeathed to the near relatives of the testator, is not singly of itself sufficient to found a presumption of fraud or undue influence ; but it is a circumstance which requires the Court to look narrowly to the evidence.</p> <p>In such a case the onus is upon the contestant to show affirmatively the undue influence or suspicious conduct on the part of the proponent.</p> <p>Loose declarations or conversations attributed to the testator, to be received with caution, if not distrust.</p>

<p>Thb plaintiff, in ejectment, claiming a piece of land, as tbe adopted son of the former owner, who died in 1848, failing to prove the legality of the adoption, according to Section 3d, Chapter 1st, Part 4th, and Article 3d, Chapter 2d, Part 5th, Statutes of 1846, judgment was entered in favor-of the defendant.</p>

<p>Whether the complainant, who was in trouble and anxiety of mind, had a right to convey away his property to a trustee for the benefit of his son, depends upon the fact, whether he was in debt, which he had no means to pay, and whether done to defraud creditors.</p> <p>A conveyance of property is not ipso facto void, though the person making it may be under a prosecution for embezzlement.</p> <p>The direct mode of creating a trust, is by some writing signed by the party from whom it emanates; yet there are resulting trusts implied by law from the manifest intention of the parties, and the nature and justice of the case.</p> <p>If the trust has taken effect, it cannot be defeated by a re-conveyance of the property to the party who created it.</p>

<p>A trust was alleged in the complainant’s bill, not evidenced by any writing, in opposition to an absolute deed, conveying tbe ebtate of tbe cestui que trust to the respondent; tbe deed stated to have been given without consideration: Held, that if tbe estate was conveyed to the nominal grantee, as a gift to tbe cestui que trust, it is tbe same in principle as if paid for by bis own money, and must be regarded as a trust, resulting from, the original transaction, which may be established by parol proof, against tbe answer of tbe grantee denying it; but such proof must be of tbe most conclusive character.</p>

<p>As tub profession of the law is practiced in the Courts of this Kingdom, the same person often performing the duties of attorney and advocate, a reasonable compensation for services rendered should be awarded.</p> <p>The withdrawal of a counsel, during the progress of the cause, by mutual accord, does not justify the client in refusing to pay the retainer.</p> <p>An agent, holding himself out as a principal, incurs the liability to the same extent as if he was principal.</p>

<p>Co-Executors having a several right to receive the debts and assets of the estate, are not compellable like co-trustees to join in receipts; but if they do join, it is equivalent to an admission of willingness to be jointly accountable for the money.</p> <p>Inventories not required to be filed, until after probate of the will, and not regarded as conclusive, but as prima facie evidence of the property that has come to the possession or control of the executor.</p> <p>If there be several executors, it is the duty of .all to see that the estate, or the income arising from it, is applied to the purposes designated by the testator, and for negligence in the discharge of this duty, all the executors regarded as responsible.</p> <p>A, an executor, was allowed by his two co-executors to retain the possession and use of a large sum of money for upwards of two years, without security, payment of interest or any effort whatever on their part to compel its investment or proper application in a due course of administration, although knowledge of the existence of the fund was brought home to all alike: In such a case, the Court, with a due regard for the interests of the minor heir, refused to grant the application of an executor for a discharge until the fund appropriated by the co-executor should have been accounted for.</p>

<p>Submitted, by agreement, to the Court.</p>

<p>Under the general provisions of the 851st Section of the Oivil Code, full powers are vested in the Probate Courts of this Kingdom to compel executors to perform their trusts, by making any necessaiy order, as the circumstances of the particular case may require, upon a proper application for the purpose beiDg made before the Court.</p> <p>By a fair construction of the statute, such Probate Court possesses all the power that a Court of Equity could exercise in the premises.</p> <p>Duty of the executor to have invested the funds of the estate, when they came to his hands, for the benefit of the infant devisee.</p>

<p>The discharge of the libellant, without a trial under the provisions of Section 1178 of the Civil Code, operates merely as a technical acquittal, creating a bar to his being prosecuted criminally, and does not preclude the masters or owners from setting up as a defence to the libellant’s claim for wages, the plea, that he attempted to fire the vessel.</p> <p>Such attempt being established, his claim for wages is conclusively barred.</p>

<p>The boats of a whaleship in the Northern Seas pursued and got fast to a bow-head whale, and after repeatedly lancing it, were obliged to cut from it, and night coming on, relinquished the pursuit, returning to the ship. The following morning a whale was seen from the mast-head, which subsequently proved to be the same as that wounded the previous evening, and the pursuit was resumed ; but the boats of another ship nearer the whale, had already commenced pursuit of the same whale, and afterwards succeeded in killing it, though warned by the officers of the first ship that it had been previously attacked by them, and some of their irons were found in its carcass. The whale was given up to the first ship. Upon the question as to the division or share, if any, to be awarded to the second vessel: Held, that the rule of the common law, touching the rights of pursuers and captors of animals ferae naturae, did not apply to cases like the present arising on the high seas, but in the absence of any positive rule of maritime law, the Court was bound to decide according to equity and natural right. And that as the whale had at first been partially disabled by the crew of the first vessel, and a diligent search maintained, though finally killed by the boats of the second ship, it might be regarded as the joint prize of both ships, and the Court decreed the libellant one-half of the proceeds (oil and bone.)</p>

<p>History of the nature of land tenures in this Kingdom, and construction of the Act of 7th June, 1848, as affecting the rights of dower and inheritance in the lands set apart to the Crown by the instrument of reservation, executed by Kamehameha III. on the 8th March, 1848.</p> <p>By the said Act, which is entitled “An Act relating to the lands of his Majesty the King and of the Government,” the lands reserved to the then reigning sovereign, descend in fee, the inheritance being limited to the successors to the throne, each successive possessor having the right to dispose of the same as private property, subject however to her Majesty’s right of dower, there being nothing in the said Act, taking away the Queen’s right to dower in the reserved lands, therein named : Nor, is there any law of the Kingdom, making the matrimonial rights of the wife of the King, any less or different from those of the wife of any private gentleman.</p> <p>The descent of that part of his late Majesty’s estate, other than the lands, reserved to the Crown by the Act of 1848, must be governed by the general law of inheritance and distribution, and her Majesty Queen Emma is entitled as statutory heir to one-half of that property, instead of dower, the latter right being merged in the superior right of heir, after payment of such debts as are not specifically charged upon the reserved lands.</p>

<p>An agriculturist purchasing in bond, articles, included in that portion of the 517th Section of the Civil Code, denominated the Free List, from the original consignee, can not be regarded as the importer of the goods, and therefore not exempted from the payment of the duties.</p>

<p>Remittances and re-shipments of goods made by the assignee of a debtor to> the creditor, at the instance of the latter, can not be regarded as items of set-off or payments, so as to prevent the statute bar of limitations from running against the plaintiffs’ demand.</p> <p>The Hawaiian statute, limiting the time for the commencement of actions, contains no provision exempting merchants’ accounts from the operation of the usual bar; neither does public policy at the present day require any such exemption.</p> <p>Evidence of fraud in making the assignment could not be held, upon authority, to prevent the operation of the statute of limitations.</p>

<p>On appeal from the decision of Justice Davis.</p>

<p>A verdict on one count, although silent as to the others, is an acquittal as to them; but the jury should respond distinctly as to all, as being a more precise mode of proceeding.</p> <p>As is provided for by statute, the jury may return a verdict for any lesser degree of the same offense, when the evidence will not warrant a verdict of guilty in the degree for which the prisoner is indicted. The proof however must sustain the charge of the lesser degree.</p>

<p>Allegations as to time and place of the commission of an offense should be made with greater certainty before the appellate tribunal (the Circuit Court) than may be required to be shown upon the record of the District Magistrate.</p> <p>The Court regard the proceedings of an appeal from a District Justice with less technical precision than on an indictment.</p> <p>In an indictment for selling spirituous liquors without license, the burthen of proof is on the defendant to show that he had a license. ></p>

<p>A parole agreement to take eharge of a plantation for three years, alleged to have been made with the plaintiff by the defendant’s agent, the latter to find all monies, required to carry on the business, said monies to bear interest from date of payment, and at the end of the three years, the sums advanced and interest to be paid back to defendant, plaintiff receiving one-half of the balance of receipts as his wages: Held to be an agreement not to be performed within a year and, therefore, such as the statute of frauds (Sec. 1053, Civil Code) declares invalid to found an action upon at law. unless it be in writing, etc.</p> <p>Such an agreement, unattested by any writing signed by the plaintiff, can not form a ground of defence to a suit for services rendered, based on a quantum meruit.</p> <p>The defendant who, with every opportunity for observing the mode of cultivation pursued by the plaintiff upon the estate, which is shown to be unprofitable, retains him in employ for a long period, can not resist his claim for some wages on the ground of inefficiency.</p> <p>Held; that by permitting the plaintiff to remain for such a length of time, he accepted his services such as they were, their value to be measured as nearly as possible by the nature and extent of the services rendered.</p>

<p>The provisions of Section 1474 of tlie Civil Code, limiting the time for the probate of wills, have no reference to the wills of testators deceased prior to the passage of that law, and the limitation therein imposed, does not apply to them.</p>