Volume 20 — Hawaii Reports

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

<p>Appeal and error — rulings not revieioable on error.</p> <p>A ruling upon a motion, orally made at the first trial and based upon the evidence, for leave to amend the answer so as to plead the statute of limitations cannot be reviewed on a writ of error issued more than six months after entry of the judgment and subsequent to its reversal and a second trial, the rendition of a verdict and entry of a second judgment.</p> <p>Id. — amendment of answer and vacating of judgment.</p> <p>After a second verdict and judgment thereon, motion for a new trial and overruling of exceptions, it is too late to move for the first time for leave to amend the answer so as to plead the statute of limitations or to vacate the judgment on the ground that the cause of action is barred by the statute.</p>

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

<p>Master and servant — fellow servant.</p> <p>A master owes to a servant the duty of providing reasonably safe tools, appliances and machinery for the accomplishment of the work. If instead of personally performing this obligation the master engages another to do it for him he is liable for the neglect of that other, which in such case is not the neglect of the fellow servant no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform as such.. The question of liability turns rather on the character of the act than on the relations of the employes to each other.</p> <p>Evidence — directed verdict.</p> <p>The evidence required submission of the case to the jury. Directed verdict set aside.</p>

<p>Appeal and error — dismissal for lack of prosecution,.</p> <p>Failure of tbe stenographer to furnish a transcript of the evidence does not excuse delay in filing the necessary papers on error, .unless within ten days after judgment the appellant has obtained from the trial court a direction to the stenographer to prepare and furnish the transcript.</p>

<p>Appeal and error — extension of time.</p> <p>Under the circumstances stated in the opinion, an extension of time for the preparation and filing of appeal papers is refused. .</p>

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

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

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

<p>Deeds — estates—condition in restraint of alienation.</p> <p>A deed conveying “absolutely” to A “and ber beirs forever” reserving all rights and income for lives of grantor and wife upon condition that grantee “cannot” sell or mortgage and that after her death the land “is to descend” to her son and any after born children “and their heirs and assigns forever” gives the grantee the fee which is'not reduced to a life estate by the condition against alienation.</p>

<p>Appeal from District Magistrate of Honolulu.</p>

<p>EXCEPTIONS EROM CIRCUIT COURT, PlRST CIRCUIT.</p>

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

<p>Criminal law — withdrawal of plea of guilty.</p> <p>An application for leave to withdraw a x>lea of guilty is addressed to the sound discretion of the trial court and the appellate court cannot interfere in the absence of abuse of discretion.</p> <p>Upon the evidence in this case the magistrate is held not to have committed an abuse of discretion.</p>

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

<p>Evidence — sufficient to support verdict.</p> <p>The evidence in this case held sufficient to support the verdict.</p>

<p>Costs.</p> <p>Attorneys’ commissions and fees are not recoverable against the Territory (following Bowler v. Board of Immigration and Oleghorn, Collector of Customs, v. Luce, 7 Haw. 715, 1889).</p> <p>Judgment — nunc pro tunc.</p> <p>A judgment in this case is entered at the date of its rendition, and not “as of” the date of a former judgment which was reversed on appeal to the United States supreme court.</p>

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

<p>Habeas Corpus — Denial of writ.</p> <p>The writ of habeas corpus to obtain release from imprisonment under sentence imposed by the judgment of a circuit court on the claim by the petitioners that the court had no jurisdiction and that the judgment was void is denied since the claim based on the same grounds has been presented on exceptions which were overruled and is therefore finally adjudicated by this court and the result of issuing the writ would be to remand the prisoners.</p>

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

<p>Judgment — motion to set aside.</p> <p>Sufficiency of evidence to support a finding by a district magistrate cannot be inquired into on a motion to set aside judgment made six months after judgment.</p> <p>Process — service by publication.</p> <p>Act 34, S. L. 1909, relating to service by publication, does not appljr to district courts.</p> <p>Process — substituted service — leaving at last place of abode.</p> <p>A and his family occupied a dwelling at Waikiki, Honolulu, and then left the Territory with intention of abandoning his residence in Hawaii and establishing a home in Australia. Subsequently he returned to Honolulu on business, remaining one month and occupying a room at 184 S. Hotel street. Held, the latter was his "last and usual place of abode” within the meaning of R. B., Sec. 2114.</p> <p>Constitutional law — due process of law — substituted service..</p> <p>The provision of R. B., See. 2114, for service on the principal defendant by leaving a copy of the summons at his last and usual place of abode meets the requirement of the Constitution as to due process of law.</p>

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

<p>Appeal from circuit judge, first circuit.</p>

<p>Evidence — supports findings.</p> <p>There was evidence in this ease to sustain the findings of the trial court.</p>

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

<p>Waters and water courses — dams, duty of owner.</p> <p>The owner of a dam. must use reasonable care and skill in so constructing and maintaining it that it will be capable of resisting the water of a stream in times of ordinary, usual, and expected freshets, and if he does not do so he will be liable for any injuries resulting from his neglect.</p> <p>Evidence — supports findings.</p> <p>There was evidence in this case to sustain the findings of the. trial court.</p>

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

<p>■ Mechanics’ Liens — not maintainable upon structure alone.</p> <p>Under Section 2173, R. L., a lien cannot exist or be enforced against any of the structures there named separately from the interest of its owner in the land upon which it is situated.</p> <p>Id. — notice of lien.</p> <p>The instrument set forth in the opinion held not to be a notice of the existence or claim of a lien upon the owner’s interest in the land.</p>

<p>Equity — principal and agent — money had and received.</p> <p>Where an agent receives money for his principal for certain mining stock and fails to remit the same, a bill in equity for an accounting is not proper, there being a plain, adequate and complete remedy by an action at law for money had and received.</p>

<p>Courts — opinions—written statement of reasons.</p> <p>The provision of R. L., §1747, as amended by Act 117 of the Laws of 1909, relating to a statement of the reasons for the decision of the trial court in jury waived cases is mandatory and the failure to comply therewith is reversible error.</p>

<p>New trial — newly discovered evidence — diligence.</p> <p>Affidavits in support of motion for new trial on the ground of newly discovered evidence should show positively, not only that the evidence was not Irnown before the verdict, hut that the applicant or his attorney used due diligence to discover and produce the new evidence at the trial.</p> <p>New trial — evidence—cumulative, impeaching and material.</p> <p>Affidavits must also show affirmatively that the new evidence is not merely cumulative to the evidence adduced at the trial, nor merely impeaching in character, and that it is material.</p>

<p>Abbitkation and awabd — conclusions of arbitrator not revietmble on appeal.</p> <p>On an appeal from the decision of a circuit court causing an award by an arbitrator to be entered as a judgment, the correctness of the arbitrator’s findings of fact and rulings of law cannot be inquired into, the only issue being whether the award was made in accordance with the terms of the submission or was made by collusion or fraud.</p> <p>Courts — jurisdiction—none, as to subject matter, by mere consent.</p> <p>A clause in the submission allowing an appeal from rulings of law cannot of itself give jurisdiction to this court where none is conferred by law.</p>

<p>Evidence — declarations concerning pedigree.</p> <p>Declarations of deceased persons who were de jure related by blood or marriage to the family in question may be given in evidence in matters of pedigree.</p> <p>Id. — relationship of declarant.</p> <p>A qualification of the rule is that before a declaration can be admitted in evidence the relationship of the declarant with the family must be established by some proof independent of the declaration itself, but such proof may be slight.</p> <p>Id. — order of proof.</p> <p>The mere order of proof is immaterial. That is a matter resting largely in the discretion of the trial court.</p> <p>Id. — declarations not secondary evidence.</p> <p>If the declarant is dead, the declarations are not to be excluded merely by reason of the fact that living members of the same family can be examined on the same point.</p> <p>Id. — narration of past events, inadmissible.</p> <p>A mere narration of past events, not against interest, though made by a claimant while in possession of the land in controversy, is but hearsay and not competent to be proven.</p> <p>Id. — receivable only to give character to possession.</p> <p>The doctrine that self-serving declarations of a claimant to land are admissible assumes that the declarations were made while the declarant was in possession of the land and that they are not offered except as coloring the occupation and showing that' it was hostile.</p> <p>Appeal and error — instructions—necessity of exceptions.</p> <p>A party who fails to object and except to an assumption or omission of certain facts by a trial judge in his instructions to the jury, and who fails to request other instructions on the point, cannot, the verdict having been rendered in conformity with the' instructions, upon an exception to the verdict on the ground that it is contrary to the law and the evidence, obtain a review of the alleged error in the assumption or omission.</p> <p>Evidence — sufficient to support verdict.</p> <p>Upon the evidence in this case a motion for a directed verdict held to have been correctly denied.</p> <p>Costs — witness fees — defective service of subpoena.</p> <p>Mileage and witness fees are taxable as costs even though the subpoena is served by an officer not authorized by law to serve it, provided the witness waived the defect, attended and testified.</p>

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

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

<p>Equity — decree. ■</p> <p>A decree bearing date July 1; but signed and filed on July 7, takes effect on the latter date and not before.</p> <p>If the form of decree was actually signed on July 1, but not filed until July 7, it did not take effect as a decree until the latter date.</p> <p>Id. — appeal.</p> <p>An appeal filed on July 5, purporting to be from a decree rendered on July 1, but which decree was not signed and filed until July 7 — at least not filed until the latter date, was premature and invalid.</p>

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

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

<p>Evidence — supports verdict — inferences.</p> <p>There being evidence of certain facts, if believed by the jury, from which facts inferences of guilt could reasonably have been drawn by the jury, the verdict cannot be set aside.</p> <p>Court — comment on evidence.</p> <p>It is not error for the court to rule in the presence of the jury that certain evidence is competent, relevant and material, or that the circumstantial evidence adduced is sufficient to require submission of the case to the jury.</p>

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

<p>Limitation of actions — injuries to land,.</p> <p>Act-113 S. L. 1907, limiting to one year the time for bringing actions for physical injuries to land, repeals Sec. 1971 R. L., as to such limitations of time, by implication.</p>

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

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

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

<p>Appeal and error — contempt■—order to appear and answer before grand jury.</p> <p>An order to appear before tbe grand jury on a day stated and answer a certain question upon tbe pain of being adjudged guilty of contempt is not reviewable on a writ of error.</p>

<p>Appeal prom District Magistrate or Souti-i Kohala.</p>

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

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

<p>Contracts — duress—sewer rates.</p> <p>Tbe defendant’s agreement “to pay such rates annually for the ,use of the sewer as may be fixed,” made with the superintendent of public works in order to obtain permission to connect premises with the public sewer, is enforceable under the decision in Territory v. Brown, 19 Haw. 41, for rates fixed prior to the act of 1904 (Sec. 1036 R. L.), and is not made under duress by reason of a statement to the defendant by an inspector of the board of health that the defendant would be prosecuted for nuisance if he did not connect with the sewer.</p> <p>Contracts — defense of illegality not available.</p> <p>The defendant having obtained permission to connect his premises with the public sewer upon his promise to pay the rates and having paid them for a year and a half without protest and stopped payment without any claim that the rates were illegal and having continued the use of the sewer for his premises, is not in a position to assert the illegality of the rates or the unconstitutionality of the act under which they were fixed.</p>

<p>Reserved Questions from Circuit Court, Eirst Circuit. Oral motion to amend decision.</p>

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

<p>Appeal and error — right of appeal from decision of boundary commissioner.</p> <p>At tbe hearing of a petition for the determination of the boundaries of certain land the Territory of Hawaii appeared and contested the boundaries as claimed by the petitioner. The issue of fact was tried at length, the parties producing, at considerable expense, all of the evidence known to them. Nearly four years later the commissioner filed his decision dismissing the petition “without prejudice, at the petitioner’s costs,” on the ground of failure of proof of petitioner’s title to the land the boundaries of which were sought to be adjudicated. Held, that the Territory was aggrieved, and had the right of appeal from the decision.</p> <p>Dismissal and non-suit — proof of title in boundary case.</p> <p>In the petition, the applicant alleged title in itself. This allegation was not disputed and the trial was conducted on the theory that the applicant had title. Under these circumstances the commissioner may not, of his own accord and without giving opportunity to the parties to cure the supposed defect, dismiss the petition on the ground of failure of proof of title.</p> <p>Appeai and error — boundaries—newly discovered evidence.</p> <p>In the supreme court, on appeal from a boundary commissioner, additional evidence may be admitted .even though strictly not “newly discovered” within the meaning of the law applicable to motions for new trials in ordinary cases.</p> <p>Boundaries — finding on the evidence.</p> <p>Upon the evidence in this case the westerly or mauka boundary of the ahupuaa of Kahua 2 in the district of South Hilo, Hawaii, is held to be at a point called Kananaka and not at a point called Huinawai or Nahuina.</p>

<p>ELECTION CONTEST.</p>

<p>Election Contest. Petition (second) for Rehearing.</p>

<p>Habeas Corpus — expiration of commitment.</p> <p>A commitment to a sheriff to detain M. “to await until the Governor of the State of California shall have the opportunity to issue a requisition to the Governor of the Territory of Hawaii and the’Governor of the Territory of Hawaii order the delivery” of M. to the Governor of California, even though validly issued, does not justify the detention of M. after the issuance of the requisition and the order.</p>

<p>Elections — what constitutes a “decision” by inspectors.</p> <p>The mere acceptance and the counting of ballots unlawfully exhibited by voters constitute “decisions” within the meaning of Sections 56 and 57 of Act 118, L. 1907, irrespective of whether the exhibiting was seen by or known to the inspectors prior to the acceptance or counting.</p> <p>Elections — exhibited ballots.</p> <p>In order to render, under R. L., Sections 87 and 88, an exhibited ballot invalid, it is requisite that the ballot be exhibited wilfully to another after it has been marked, and that the person to whom it is exhibited see its contents so as to be informed thereby for whom ft is cast.</p>

<p>Elections — withdrawal of petitioners — effect of.</p> <p>In an election contest brought by thirty voters under Section 56 of Act 118, D. 1907, any one or more of the petitioners may withdraw as such, at least before answer filed and with leave of the court, subject only to an appropriate order as to costs. In that event the contest may not be maintained by the remaining petitioners.</p> <p>Id — amendment—parties plaintiff.</p> <p>After the expiration of the time limited by statute for the bringing of election contests a petition by thirty voters, one or more of whom have discontinued, may not be amended by adding the names of new parties plaintiff.</p>

<p>Wills — construction.</p> <p>In the will of Bernice Pauahi Bishop the direction to the trustees “to devote a portion of each year’s income to the support and education of orphans and others in indigent circumstances” refers to support and education at the Kamehameha Schools only and not to support independently of education.</p>

<p>Submission upon Agreed Eacts.</p>

<p>Criminal Law — evidence obtained illegally — constitutional rights.</p> <p>The admissibility of evidence is not affected by the illegality of the means through which it. has been obtained. The admission of such evidence, if obtained without order or sanction of the court, violates no constitutional rights.</p> <p>Statutes — construction.</p> <p>In the enactment of sections 3173-3178, R. L., and of Act 44, L. 1909, the legislature intended to include in each section all the elements essential to its individual completeness, and did not contemplate that on a charge for the violation of one section a conviction should be had solely upon evidence of the violation of another section.</p> <p>New Trial — lottery-—che fa — proprietor of — player does not assist.</p> <p>The defendants were convicted on a charge that they did “assist in maintaining and conducting a certain lottery, to wit, che fa,” and the evidence tending to show that one of them was the proprietor and that two assisted, their conviction must be sustained, but as to the other three, the evidence tending to show that they only purchased tickets, were present and played, they did not come within the charge as assisting in the maintenance of the lottery and were wrongfully convicted. New trial granted as to them.</p> <p>Appeal and Error — instruction—ambiguous and misleading.</p> <p>Even though an instruction is ambiguous and misleading,, the mere saving of an exception to it without request for further instructions, presents no error on appeal.</p>

<p>Exceptions, Bill or — sufficiency.</p> <p>The mere statement in a hill of exceptions that “the court filed its decision in said action, to which the plaintiff duly excepted,” is not sufficient to firing to this court any question or error for review.</p>

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

<p>Equity — res judicata.</p> <p>A decree of the court of land registration that the grantees named in a deed were the owners of the land therein described, is a bar to a bill to reform the deed alleged to have been executed by the grantor by mistake and in consequence of the fraud of one of the grantees.</p>

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

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

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

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

<p>Limitation op actions — judgments—appeals.</p> <p>No action lies on a judgment pending an appeal, and therefore the statute of limitations does not then begin to run.</p>

<p>Deeds — construction—trusts.</p> <p>A deed by E. to C. and N., conveying land to them in trust for the use of E. until her marriage with H. and after the marriage to pay the net income, to her during her coverture with H. and in case of her death after the marriage and during the life time of H., leaving issue of the marriage, to apply the net income to the maintenance of such issue during minority, and upon such issue attaining majority to convey the land to them; Held,- — H. having died in the life time of E., — -that the possibility of such issue acquiring an interest in the land entirely vanished upon the death of H.</p> <p>Id. — trusts—revocation.</p> <p>A conveyance in trust, although the deed contains no express power of revocation, may be revoked by the consent of all parties in interest.</p> <p>Id. — construction.</p> <p>A deed to E. and “the heirs of her body,” habendum to E. and “the heirs of .her body forever,” conveys a life-estate to E., remainder in fee simple to her children.</p>

<p>Limitation oe Actions — •minors—actions against former guardian.</p> <p>The general rule is that the right oí action by a ward against a former guardian accrues upon the ward’s attaining majority or upon her marriage and that the statute of limitations commences to run from that date.</p> <p>Release — evidence.</p> <p>Payment and release may be inferred from facts shown by the evidence.</p> <p>Evidence — assumpsit—burden of proof.</p> <p>In assumpsit for money had and received from sales of plaintiffs cattle the burden is upon the plaintiff to prove the essential facts by evidence sufficiently clear and satisfactory to enable the jury to intelligently make the necessary findings.</p>

<p>Negligence — master and servant — evidence by servant — hazard of employment — directed verdict.</p> <p>In an action by a servant against his master to recover damages for personal injuries alleged to have been sustained by him as the result of the master’s negligence, it was incumbent on the servant to show affirmatively a neglect of some duty on the part of the master, which the master owed to him while so employed, and which neglect was the sole and proximate cause of the injury. There being no evidence of negligence, the injury must be considered one of the usual and ordinary risks incident to the employment, which the servant assumed, and an order of court directing a verdict for the master is correct.</p>

<p>Embezzlement — county employee — second clerk of district court of Honolulu — indirect consent of county to entrusting him unth hail money.</p> <p>Bail money forfeited in the district court of Honolulu belongs to the county and when collected by the second clerk of the district court, appointed by the magistrate and by him charged with the duty of collecting, is subject to embezzlement by the clerk as a county employee entrusted with the custody of the money by the indirect consent of the county.</p> <p>The second clerk is properly appointed by the magistrate and not by the mayor under the provision in the County Act for the appointment of county officers, and may he lawfully charged by the magistrate with receiving hail moneys.</p>

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

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

<p>Reserved Question from Circuit Court, First Circuit. Petition for Rehearing.</p>

<p>Evidence — spontaneous exclamations — statement of opinion.</p> <p>In an action for damages for negligence in the operation of an automobile testimony was offered tending to show that one who witnessed the collision exclaimed shortly afterward that (referring to the plaintiff), “It was all his own fault and if he had taken our advice and had been careful the accident would not have happened.” Held, that even though in other respects admissible the statement was the expression of the mere opinion and conclusion of the declarant and was therefore inadmissible.</p> <p>Appeal and Error — instructions■—record on exceptions.</p> <p>Ordinarily the inclusion in the record of a copy of the charge of the presiding judge to the jury is essential to the consideration of exceptions to the giving or the refusal of instructions.</p>

<p>Constitutional Law — delegation of powers.</p> <p>It is an established general doctrine of constitutional law that the power conferred upon the legislature to make laws cannot be delegated to any other authority.</p> <p>Same — taxing poiaer — health regulations.</p> <p>The power of taxation may not be delegated to administrative officers. The power to enact health regulations, having the force of law, may be delegated to municipalities' and local boards of health.</p> <p>Taxation — sewer rates, a tax.</p> <p>The sewer rates provided for by section 1036 of the Revised Laws, in view of the provisions of ordinance No. 6 of the City and County of Honolulu and the plumbing regulations of the board of health constitute a tax, and are, therefore, subject to the principles which govern the imposition and assessment of taxes.</p> <p>Same — illegal delegation of power.</p> <p>Sections 1036, 1037 and 1038, Revised Laws, in so far as they relate to the imposition, assessment and collection of rates for the use of the public sewers in the City and .County of Honolulu constitute an illegal delegation of the taxing power, and are invalid.</p> <p>Mandamus — remedy liy.</p> <p>Mandamus lies to compel the superintendent of public works of the Territory of Hawaii to grant the application of a property owner for permission to connect his premises with the public sewer when such owner has complied with all legal requirements to entitle him to connect, and no valid reason is shown for a refusal to issue the permit.</p>

<p>Pleading — amendment—substantial change of claim.</p> <p>An amendment to a bill in equity intended to conform the pleadings to the facts proved will not be allowed when its effect would be to substantially change the petitioner’s claim.</p>

<p>Negligence — proof of, question for jury.</p> <p>Under the circumstances set forth in the opinion, the questions whether a collision between defendant’s street car and plaintiff’s wagon was caused by defendant’s negligence, or by plaintiff’s contributory negligence, or was the result of a mere error of judgment on the part of the motorman, were for the jury to decide under appropriate instructions.</p> <p>Same — rights of street cars and vehicles on streets.</p> <p>The rights and obligations of persons using vehicles on the streets and of street railway companies operating cars thereon are mutual and reciprocal. A street ear cannot overtake and run down a vehicle under ordinary circumstances without negligence or willful wrong.</p> <p>New trial — motion for — sufficiency of evidence.</p> <p>In this Territory the circuit judges are not authorized to set aside a verdict and grant a new trial where the sole objection to the verdict is that it is against the weight of the.evidence when there is more than a scintilla of evidence to support the verdict.</p>

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

<p>Witnesses — recognizances to appear before grand jury — inherent power of circuit judges to require.</p> <p>Circuit judges at chambers have not inherent power, aside from statute, to require proposed witnesses to give recognizances to appear and testify before the grand jury, when the accused has not been committed for trial or held io await the action of the grand jury and no indictment is actually under consideration by the grand jury or to commit the witnesses to jail without giving them an opportunity to furnish the recognizances.</p> <p>Id. — statutory power of circuit judges.</p> <p>Under the circumstances above stated circuit judges at chambers have not the said power to require recognizances or to commit to jail, either under R. L., §1899, or under R. L., §1648, or under Org. Act, §83, or under all of said sections.</p>

<p>Costs — territorial officer exempt from.</p> <p>In proceedings instituted by one as superintendent of public works on bebalf of the Territory costs are not taxable against the plaintiff upon the sustaining of a demurrer on the ground that the Territory, and not the superintendent, should be the party plaintiff.</p>

<p>Partition — sale—mortgage.</p> <p>Upon a sale of land in a suit for partition between tenants in common, where some of the moieties are subject to a mortgage, the mortgagee having been made a party to the suit, the land ■ should be sold clear of the incumbrance, and the mortgagee’s claim paid out of the shares of the proceeds belonging to the mortgagors.</p> <p>Same — proof of impracticability of partition — report of commissioner.</p> <p>Where the allegation in a bill for partition that the premises cannot be partitioned without great prejudice has been traversed it must be proved, but the defendants cannot complain of a finding by the circuit judge, based upon and supported by the report of a commissioner, that the allegation has been proven, where the defendants were given an opportunity to adduce evidence on the subject' but failed to.</p> <p>Pleading — ultimate facts.</p> <p>An allegation in such a bill that a partition “cannot be made without great prejudice” is not objectionable as a mere conclusion. It is a proper statement of an ultimate fact.</p> <p>Same — prayer for partition.</p> <p>Where, in a bill for partition, the prayer is for a sale of the land, and for general relief, a partition in kind may be decreed without a specific prayer therefor.</p> <p>Same — MTl in equity — signature of counsel.</p> <p>The failure of counsel to sign a bill in equity may he taken advantage of, if at all, by motion; it is not a subject for demurrer.</p>

<p>Exceptions from Circuit Court, First Circuit. Petition for Rehearing.</p>

<p>Taxation ok Costs.</p>

<p>Oath — administration of.</p> <p>An oath administered to a witness by the clerk that the evidence he shall give “shall be the truth, the whole truth and nothing but the truth,” omitting the invocation, “so help you God,” which was correctly interpreted to the witness, the interpreter adding thereto the words, “so help you God,” is valid.</p> <p>Evidence — ■cross-examination of interpreter.</p> <p>The right to subject an interpreter, on the witness stand, to cross-examination on the foreign expressions and terms used by him as interpreter, or used by the witness for whom he has acted as interpreter, is a right well recognized by law, and is founded upon the general rules and principles which govern cross-examination of other witnesses.</p> <p>Trial- — remarhs of court — argumentive instructions.</p> <p>Remarks and instructions of the court to the jury which are argumentive comparisons relative to the credibility of witnesses, commending one and disparaging the other, their testimony being vital and diametrically in conflict, are unfair, prejudicial and erroneous.</p> <p>Trial — instructions, theory of.</p> <p>Instructions are given on the theory that they are expositions of the principles of the law applicable to the case, or some branch or phase of the case, which the jury are bound to apply in order to render a verdict responsive to the evidence adduced. They should be pointed, concise and definite, covering, however, the whole case, i. e., “the points of law involved therein.” R. L. Sec. 1801. They should not be ambiguous, inconsistent or contradictory; nor should they extend to abstract propositions of law.</p> <p>The court has no right to attempt to discredit instructions already given.</p>

<p>Territories — legislative powers under Organic Act.</p> <p>By section 55 of tlie Organic Act the Legislature of this Territory was vested with the, power of taxation and also the right to legislate in exercise of the police power.</p> <p>Constitutional law — taxation and regulation of business of emigrant agent.</p> <p>The business of emigrant agent is one which may lawfully be regulated as well as taxed.</p> <p>Act 48 of the Session Laws of 1911, constitutes a lawful exercise by the Legislature of the power of taxation and of the police power and so far as the petitioner in this case is in a position to raise constitutional objections to its validity it is held to be not unconstitutional.</p> <p>Constitutional objections to a statute will ordinarily not be considered when raised by a person whose rights are not affected.</p>

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

<p>Evidence — diagram of place of accident.</p> <p>A diagram exhibited to a witness for the purpose of illustrating a question need not be prepared by an expert surveyor.</p> <p>Negligence — contributory negligence — standing on running board of street car.</p> <p>In an action against a person operating an automobile to reqover damages for negligence causing injury to the plaintiff, the fact that the plaintiff while a passenger on a street car remained on the running board does not necessarily constitute negligence, irrespective of whether there were vacant seats in the car. Whether or not the plaintiff was guilty of contributory negligence is a question to be determined by the jury in view of all the circumstances of the case.</p> <p>Trial — argument of counsel — comments on conduct of party atnd of witnesses.</p> <p>Comment before a jury on the fact, disclosed by the evidence, that one of the parties paid for the lunches of two witnesses on two days during the trial is within the hounds of legitimate argument.</p> <p>Trial — instructions—form and arrangement.</p> <p>Instructions need not be given in the precise words requested if they are substantially given in another form.</p> <p>Damages — punitive—when recoverable.</p> <p>Punitive damages are recoverable in actions of tort when the defendant’s misconduct has been wilful or when he has acted with a reckless indifference to the rights of others.</p>

<p>Motion to Quash Writ ok Error.</p>

<p>Appeal and Error — error to decision in jury-waived case.</p> <p>A writ, of error does not lie t.o a decision, of a circuit, court in a case tried without a jury where final judgment has not been entered in the case.</p>

'This is an appeal from a ruling made by the territorial auditor by which he refused to issue a warrant upon the treasurer on tire claim of John A. Cummins for the sum of five thousand dollars.

<p>Pbocess — certificate of copy by sheriff.</p> <p>Under R. D., §1721 the copy of the summons and of the petition may be certified by any one of the officers designated to whom the documents have been entrusted for service.</p> <p>Judgment — reopening default — necessity of stating facts constituting defense.</p> <p>In an affidavit in support of an application to set aside a default the statement that the appellant has a good and meritorious defense is insufficient. The facts relied upon should be set forth in order that the court may judge whether the defense is meritorious.</p> <p>Courts — power to make rules.</p> <p>The rule of the circuit court of the first circuit which assigns all jury-waived cases to the third judge for trial is, if intended to deprive the other judges of jurisdiction to hear such cases, invalid.</p> <p>Judges — cLisqiialifloation.</p> <p>Under section 84 of the Organic Act a judge is not disqualified to hear an action of ejectment by reason of the fact that he was of counsel in an earlier action (for summary possession) in which the title to the same land was involved.</p>

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

<p>Municipal Corporations — ordinance, title of.</p> <p>It is sufficient if the title of an ordinance fairly indicates to the ordinary mind the general subject of the act, is comprehensive enough to reasonably cover all its provisions, and is not calculated to mislead; but an act Which contains provisions neither suggested by- the title, nor germane to the subject expressed therein, is, to that extent, void.</p> <p>Sections 2, 3 and 4 of ordinance No. 6 of the City and County of Honolulu, held to be inoperative for the reason that the provisions therein contained for the registering, licensing and bonding of persons to do “any plumbing work” are not expressed in or suggested by the title of the ordinance.</p>

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

<p>Trial- — cross-examination—matter of defense — direction of verdict.</p> <p>Evidence, in support of an affirmative defense, improperly admitted on cross-examination of one of plaintiff’s witnesses during his case in chief cannot, at the close of the plaintiff’s case, be made the basis of a directed verdict.</p>

<p>Trial — direction of verdict — conflicting evidence.</p> <p>The evidence being sufficient to support a finding that P. was full brother of the intestate, it was error to direct a verdict based on the theory that the two were half brothers.</p> <p>Appeal and Error — grounds of affirmance — questions not raised below.</p> <p>While a judgment may, under some circumstances, be affirmed upon a ground other than that which influenced the trial court, the general rule is that an assumption of fact adopted by a trial court with the acquiescence of the parties will be followed by an appellate court to which the cause is taken; and such rule-will be applied where the ground relied on in the appellate court to support a judgment otherwise erroneous involves a question of fact not fully developed at the trial to which the attention of neither the trial court nor opposing counsel was called.</p> <p>Descent and Distribution — '‘Ancestors,’’ under §2513, R. L.</p> <p>The word “ancestor” in the proviso of section 2513, R. L., embraces all persons from whom a title by descent could be derived under any circumstances.</p> <p>The ancestor from whom “the inheritance came” is the person from whom it immediately passed-, and not the remote source of the gift.</p> <p>Id. — deed from wife — hindred of half blood not excluded.</p> <p>A., the wife of K., for a nominal consideration conveyed to M. certain land which M. thereupon conveyed to K., the intestate. M. and K. were not related to each other by blood or marriage. Held, that the alleged gift “came” to K. from M. and not from A. and that the children of P., a deceased half brother of K. and not of the blood of A., were not excluded by the provisions of section 2513, R. L., from inheriting the land of K.</p>

<p>Taxation — enforcing payment of tax unpaid when due„</p> <p>Where the amount of a tax is certain, and the liability of the tax-payer has become fixed, the tax being due and payable, an action of assumpsit for its recovery may be maintained under section 1269 of the Revised Laws, as amended by Act 89 of the Session Laws of 1905, though the tax has not become delinquent.</p>

<p>Taxation — enforcing payment of tax unpaid when due.</p> <p>Where the amount of a tax is certain, and the liability of the tax-payer has become fixed, the tax being due and payable, an action of assumpsit for its recovery may be maintained under section 1269 of the Revised Laws, as amended by Act 89 of the Session Laws of 1905, though the tax has not become delinquent.</p>

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

<p>Taxation — income tax — annuity from property held in trust.</p> <p>Under chapter 99, R. L., the income tax on an annuity paid out of income derived from property held in trust is assessable against the annuitant, and not the trustee.</p> <p>Id. — income tax on accumulations.</p> <p>Surplus income arising from property held in trust and accumulating in the hands of the trustee pursuant to the terms of a will is not taxable under said chapter prior to the arrival of the time for its distribution.</p>

<p>Infants — female infant■ — marriage of — disability.</p> <p>Notwithstanding the marriage of a female infant her disability of minority continues until she attains the age of eighteen years.</p>

<p>Pleading — amendmew.t.</p> <p>Plaintiff having mistaken the name of the defendant should have been allowed to amend by substituting the true name. Husband and wipe — contract for necessaries.</p> <p>A married woman may contract to pay for articles which are necessary.</p>

<p>Territories — legislative power of.</p> <p>A statute providing for the discharge of a moral obligation by means of an appropriation of public funds is rightful legislation within the meaning of the Organic Act.</p> <p>Statutes — construction of — restricted meaning.</p> <p>Every reasonable view which may he taken of the language used in a statute. should he resorted to in order to save the act from invalidity, and if .it is capable of a restricted construction which would avoid conflict with the fundamental law that construction should be adopted.</p> <p>Same — office of title and preamble.</p> <p>Neither the title of a statute, nor its preamble, may be used to control positive provisions in the body of the act, but may be resorted to where the language of the enactment is ambiguous and the intent doubtful.</p> <p>Samf — enactment of — three readings.</p> <p>Where a statute which originated in the house of representatives passed three readings in that branch of the legislature, and also in the senate where it was amended, it was not necessary, after the senate amendments had been concurred in by the house, to read the bill three times as amended.</p> <p>Same — doubt or uncertainly as to legislative intent.</p> <p>Legislation is not to be nullified on the ground of uncertainty if it is susceptible of any reasonable construction that Will support it.</p> <p>Same — appropriations—inadequacy of fund.</p> <p>Under Act 143 of the Session Laws of 1911, claims should be paid ’ in the order of their presentation till the fund is exhausted, the appropriation being insufficient to pay all the claims presented.</p>

<p>Partition — trial of title.</p> <p>A hill for partition cannot be made the means of trying a disputed legal title.</p> <p>If, in a suit for partition, an issue is in good faith raised concerning the extent of the petitioner’s interest in the land, the proper course is to suspend the bill and give the petitioner an opportunity to sue at law.</p>

<p>Deeds — construction of, 6y parties.</p> <p>The rule that where the language of a deed is ambiguous and a certain construction has been given to it by the parties themselves, that construction will be accepted as the true one- unless it contravenes some rule of law, does not apply unless all the parties interested participated in such construction.</p> <p>Action to quiet title — title from common source — agreed facts.</p> <p>In a statutory action to quiet title where from the facts agreed upon it appears that1 both the1 plaintiffs and defendant claimed title from a common source it is not error to exclude evidence of title anterior to that source.</p> <p>Appeal and error — exceptions in jury-waived cases.</p> <p>The statute requiring that the decision in a jury-waived case must be filed in writing, an exception to a so-called oral decision is ineffective for any purpose.</p> <p>In a jury-waived case an exception to the judgment does not serve to bring up the 'merits of the decision.</p> <p>In such a case an exception to the denial of a motion for a new-trial which was made and passed on before a written decision was filed presents nothing for the consideration of the supreme court.</p>

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

<p>Mortgages — foreclosure of — statute of limitations.</p> <p>Foreclosure of a mortgage, is not barred merely because the statute of limitations has run against the note for which the mortgage was given as security.</p> <p>Same — deficiency judgment.</p> <p>The decree in a suit to foreclose a mortgage may not provide for entry of a deficiency judgment against the defendant when action on the note secured by the mortgage has been barred by limitation.</p>

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

<p>Arbitration and Award — pending action■ — jurisdiction of court to order reference.</p> <p>In an action of law pending in one of the circuit courts of this Territory the court, without the aid of statute, has jurisdiction with the consent of the parties to refer the issues to arbitrators named by the parties, the stipulation further providing for the entry of the award as the judgment of the court.</p> <p>Id.- — maintenance of action — validity of judgment.</p> <p>In such a case the reference to arbitrators does not of itself operate as a discontinuance of the cause and the judgment entered in pursuance of the stipulation and order of reference is valid.</p> <p>Id. — awards not lightly set aside.</p> <p>Awards of arbitrators are generally regarded by courts with favor and are not to be lightly set aside.</p> <p>Id. — disqualification of arbitrator — evidence.</p> <p>A charge that an arbitrator is disqualified, based solely upon a hearsay affidavit presented nearly two years after the filing of the award, cannot be sustained.</p> <p>Id. — findings of fact — evidence.</p> <p>In the absence, at least, of a transcript of the evidence, an award will not be set aside on the ground that certain interest claimed was not allowed or on the ground that the arbitrators accepted as true evidence claimed after the filing of the award to be false,</p>

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

<p>Equity- — jurisdiction—constructive service.</p> <p>Section 1840, Revised Laws, which authorizes constructive service upon non-resident defendants in suits in equity is valid and operative only in those cases in which equity has jurisdiction according to the general principles of equity to proceed in matters in which the decree may operate directly upon property.</p> <p>Same — removal of ‘cloud — remedy in personam.</p> <p>In the absence of statute a court of equity has no inherent power by the mere force of its decree to annul a deed or to establish a title.</p> <p>The relief sought in this case being the removal of a cloud upon title by the delivering up and cancellation of an alleged fraudulent deed is purely in personam, and jurisdiction' of the person of the defendant, a non-resident, cannot be acquired through service by publication.</p>

<p>Tenancy in common — ouster—answer, effect of.</p> <p>Where the plaintiff in an action of ejectment .sues for and claims the entire interest in and the right to the possession of all the land involved in the action, and the defendant, instead ol claiming only a moiety, files an answer denying generally all the allegations contained in the plaintiff’s complaint, the answer constitutes ouster, and relieves the plaintiff from the necessity of proving it by any other evidence.</p> <p>In. — recover to extent of title.</p> <p>A plaintiff in ejectment may take judgment as co-tenant according to the extent of his title.</p>

<p>Courts — stare decisis.</p> <p>The court declines to consider de novo the question involving the construction of section 2513, R. L., decided in TJulvw v. Kaio, ante, p. 567, nothing new or different having been advanced in the way either of argument or authorities.</p> <p>Evidence — proceedings in probate for distribution of personal property as evidence in an action to quiet title.</p> <p>A claim of title to land in an action to- quiet title is not prejudiced by reason of the failure of one claiming as an heir to appear and make claim to a share of the personal property of the decedent in a probate proceeding had upon the administrator’s petition for allowance of accounts and discharge.</p> <p>A decree of distribution made in such a proceeding is not evidence in an action to quiet title to land against one not a party to the proceeding.</p>

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

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

<p>Arpear jbom District Magistrate oe Honolulu.</p>

<p>Statutes — construction, of.</p> <p>Under Act 143 of tlie Session Laws of 1911, merchandise license fees paid after June 14, 1900, for annual licenses hearing date anterior to the date mentioned are to he refunded only as to a portion corresponding to the fractional part of the year which remained unexpired on that date.</p>

<p>Exceptions from Circuit Court, Fourth Circuit. Motion for Continuance.</p>

<p>Appeal erom District Magistrate oe Wailuku.</p>

<p>Speodpio pereormance — agreement to convey — construction.</p> <p>A contract to convey certain land by “a good and sufficient warranty deed” is in law an undertaking, not to furnish a deed good in form only, but to convey the title free from all encumbrances.</p> <p>Id. — order to show cause — release of mortgage — evidence.</p> <p>° Upon an order requiring the respondent in a suit in equity to show cause why he should not, in compliance with a decree directing him to specifically perform such a contract, furnish to complainant a release of an outstanding mortgage, evidence offered by the complainant is, at least under the circumstances of this case, admissible which tends to show that the mortgagee is willing to release the mortgage upon payment of a sum not exceeding the agreed purchase price, even though the evidence was not offered at the hearing before'decree.</p> <p>Appeal — stay of execution — specific performance.</p> <p>In such a suit, pending an appeal from the discharge of an order requiring the respondent to show cause why he should not furnish a release of an outstanding mortgage as well as a warranty deed, the fund deposited in court by the vendee for payment of the agreed purchase price should not be paid over to the vendor.</p>

<p>Landlord and tenant — action for rent — proof of - title.</p> <p>In an action by a lessor against a lessee to recover rent the plaintiff is not required, as part of his case in chief, to prove title to the demised premises. •</p>

<p>Mechanics’ liens — right of material-man — contract against liens.</p> <p>The right to a lien which is given by statute to a material-man can not be destroyed by a provision against liens contained in the contract between the owner of the building and the contractor, to which contract the material-man was not a party and of which he had no knowledge.</p>

<p>Courts — stenographers, duties of.</p> <p>The attorney-general is not entitled to receive free of cost a transcript of the evidence and proceedings in a case tried in the court of land registration in which the Territory was a party by reason of the fact that the stenographer who reported the case was an official stenographer of the circuit court of the first circuit, such stenographer not having been assigned the duty of acting as such reporter under section 1692 of the Revised Laws.</p>

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

<p>Landlord and tenant — sxmmary possession — action purely possessory.</p> <p>Prqceedings under R. L. §§2089 and 2090 are purely of a .possessory nature and do not. involve questions of title and their object is merely to put out of possession those who are in possession. -</p> <p>Id. — parties defendant — sublessee in possession.</p> <p>In an action of summary possession of land under the statute a sublessee .in possession is a necessary party defendant.</p> <p>Id.' — parties plaintiff — grantee of lessor.</p> <p>A conveyance of leased premises carries with it the right to sue for the possession upon a forfeiture for breach of condition.</p>

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

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

<p>Adverse possession, — cotenants.</p> <p>One cotenant may, by an adverse holding of the common property, of which the other has notice, acquire title to the whole as against the ousted tenant.</p> <p>Appeal and error — improper admission of evidence.</p> <p>A decision of the trial court in a jury-waived case which is amply supported by evidence will not be disturbed because of the improper admission of testimony when it appears improbable that such testimony influenced the conclusion arrived at by the trial court.</p> <p>New trial — newly discovered evidence.</p> <p>A new trial will not be granted on the ground of newly discovered evidence where the evidence referred to was known to counsel before the trial was concluded.</p>