Volume 21 — Hawaii Reports

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

<p>Statutes — consideration of — letter—intent.</p> <p>In the absence of an obviously mistaken or inaccurate use of words the letter of a statute will not be extended by construction to meet the alleged intent of the legislature where no injustice, absurdity, repugnance or inconvenience will result from a literal interpretation.</p> <p>Same — Act 143, Laws of 1911, construed.</p> <p>The statute making an appropriation for the purpose of repaying moneys wrongfully collected as merchandise license fees under sections 764 to 768 of the'Penal Laws, 1897, did not include license fees paid prior to June 14, 1900, in advance for a period extending beyond that date.</p>

<p>Pleading — charge—keeping liquor for sale.</p> <p>A charge that the defendant, at a time andi place named, he not being a licensee, or the agent or employee of a licensee, did unlawfully keep for sale intoxicating liquor, is sufficient.</p> <p>Motions — hill of particulars.</p> <p>A motion “that the prosecution be required to furnish defendant with a bill of particulars,” without pointing out the particulars desired, is not sufficient.</p>

<p>Corporations — by-laws, amendment or waiver of.</p> <p>A by-law of a corporation may be waived or set aside for tiie time being of permanently amended, without formal action, by a course of corporate conduct inconsistent therewith in which all the stockholders have acquiesced notwithstanding another by-law provides that all motions to amend the by-laws shall require a three-fourths vote of the shares of the company.</p> <p>Same — change of date for annual meeting . tyy acquiescence.</p> <p>A by-law provided that the annual meeting of the corporation should be held in the month of October, but following an informal agreement or understanding had between some of the stockholders present at a meeting held on June 5, 1902, the annual meeting thereafter was held in the last week of February of each year without protest or objection on the part of any stockholder. Another by-law provided that the officers should hold office for one year from their appointment and thereafter until the appointment of their successors. Held, that a stockholder whose stock was represented and voted at the annual meeting held in the last week of February, 1911, could not demand that an annual meeting for the election of officers be held before the last week of February, 1912, though he was riot present at the meeting held on June 5, 1902, and now owns the majority of the stock of the corporation,</p>

<p>Municipal Corporations — powers of board — rules of procedure.</p> <p>A municipal board can neither enlarge nor restrict its charter powers. A so-called rule of procedure, which purports to restrict the powers of the municipality is without force as against the validity of an ordinance passed in pursuance of statutory authority.</p> <p>Id. — rules not invoiced — how waived.</p> <p>A municipal hoard may waive its rules of procedure either by formal action, or by failure to invoke them, or by ignoring them, if no objection is interposed.</p> <p>Id. — ordinance, title of.</p> <p>The title of an ordinance is sufficient if it fairly indicates to the ordinary mind the general subject of the ordinance, is comprehensive enough to reasonably cover all its provisions, and is not calculated to mislead.</p> <p>Id. — ordinance in conflict with statute.</p> <p>No ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or statutes ol the Territory, whether such ordinance is in conflict with any such statute or statutes or otherwise.</p>

<p>Fish — close season for amaama.</p> <p>The preservation of fish is within the proper domain of the police power. The legislature may provide by statute for a close season for the protection of amaama notwithstanding the declaration contained in section 95 of the Organic Act.</p> <p>Same — sale of fish taken from a private pond.</p> <p>The prohibition against selling amaama during the close season contained in Act 110, Daws of 1911, will apply to fish .taken from a private pond unless it is made to appear that there is no passageway connecting such pond with the sea, or other waters, through which amaama may pass. The sale of amaama taken from privately owned ponds during the close season may be prohibited if such prohibition is found to be necessary in the endeavor to protect the amaama of the sea waters of the Territory.</p> <p>Constitutional law — invalidity of portion of statute.</p> <p>The invalidity of a portion of a statute will not defeat the whole act if the unobjectionable part is separable, complete and capable of enforcement.'</p>

<p>Excebtions erom: Circuit Court, First Circuit.</p>

<p>Indictment and information — common nuisance, sufficiency of infor. motion for.</p> <p>An information, which, charges that defendant did, during a certain period, continually, wilfully and unlawfully turn loose, and continually, wilfully, unlawfully and knowingly permit, “certain dairy cattle” to go abroad, roam about, lie about, graze and assemble together in and upon a certain public highway, thereby obstructing, hindering and disturbing the lawful use thereof, and endangering the safety of the public, is fatally defective, in that it does not show that defendant was the owner of or had control over the cattle referred to.</p>

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

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

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

<p>Juey — jurors excused prior to service of summons.</p> <p>The excusing of jurors prior to service of summons and of the court’s own motion, if not contemplated by the statute, is, at most, a mere irregularity of which a defendant under indictment has no reason to complain, if the grand jury finding-the indictment and as finally constituted is composed wholly of qualified jurors, and if the defendant is not injured by the proceedings.</p>

<p>Appeal prom Circuit Judg-e, First Circuit</p>

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

<p>Equity — purpose of suit — remedy in personam.</p> <p>A suit in equity, the essential purpose of which is to establish a trust with reference to, as well as to establish a title in, certain land, is purely a proceeding in personam, and jurisdiction of the persons of the defendants, non-residents, cannot be acquired by substituted service.</p>

<p>Officers — letting of public contracts.</p> <p>Under a statute providing for the letting of public contracts to the lowest responsible bidder, the refusal of the awarding officers to award a contract to the lowest bidder can be justified only when it has been made to appear upon a public hearing and investigation conducted with fairness, impartiality and thoroughness that he is not a responsible bidder.</p> <p>Same- — meaning of “responsible bidder".</p> <p>The phrase “responsible bidder” means one who is not' only financially responsible, but who is possessed of the judgment, skill, ability, capacity and integrity requisite and necessary to perform the contract according to its terms. In determining tbe question of the responsibility of a bidder awarding officers have a wide discretion, but that discretion must be exercised fairly, honestly and judicially.</p> <p>Same — uncertainty iy, specifications.</p> <p>The specifications for a public contract upon which bids are requested should include every element essential to furnish a common standard by which to measure the respective bids, and where they are so indefinite or misleading as to prevent real competition between the bidders, no valid contract can be based upon them. Where, in a call for tenders for the construction of a road, no time was fixed" within which the work should be completed, but the bidders were required to state in their bids the time in which they would agree to complete the work, and neither the call for tenders nor the specifications stated the value which would be placed upon the difference in time, and the awarding officers were not bound to consider the difference in time in which the bidders agreed to complete the work in determining who was the lowest bidder, held that the specifications were fatally defective and no ■ contract could be awarded on them.</p>

<p>Error, to District Magistrate or Honolulu.</p>

<p>Public Hands — freehold agreement — planting and care of trees.</p> <p>Under section 326, R. H., trees growing naturally upon the land may be counted as in compliance with the requirement as to “the planting and care of not less than an average of ten timber, shade or fruit trees per acre;” the word “and” in the sentence quoted is to be construed as “or.”</p> <p>Same — maintenance of home.</p> <p>Under chapter 22, R. L., a distinction exists between “residence” and “home.” The occupying of a house on a certain piece of land, for the length of time required to obtain title, without making it a home within the proper meaning of the term, but for the purpose merely of making a showing to obtain a patent to the land, and with the intention of going to live elsewhere immediately upon the expiration of that time, does not constitute a compliance with the requirement of section 326, R. L., to maintain a home on the premises, for the intention and good faith inseparably involved in the idea of the maintenance of a home are not present.</p> <p>Same — assignment of interest under freehold agreement.</p> <p>An agreement between a freeholder and another whereby the former, for a valuable consideration, gives to the other the right to enter upon the land held under a freehold agreement and to grow and harvest crops of sugar cane thereon constitutes an assignment of a part of the freeholder’s interest under the freehold agreement within the purview of section 326, R. L.</p> <p>Same — cultivation of land.</p> <p>The cultivation of premises in compliance with the statute must be done by the freeholder or for him by his servants or agents. The crops grown must be the crops of the freeholder and not those of another.</p>

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

<p>Landlord and Tenant — :-relief in equity against forfeiture of lease.</p> <p>Equity will relieve against the forfeiture of a lease for the lessee’s failure to pay taxes where such failure was not due to gross negligence and was not persistent and wilful. Where the lessee has keen lulled into non-action ky equivocal conduct on tke part of the lessor the failure to pay the taxes may he regarded as not wilful and persistent.</p>

<p>Exceptions Erom Circuit Court, First Circuit,</p>

<p>Street Railroads — obligation to pave street.</p> <p>The duty imposed on the street railway company by section 838, R. L., to pave or macadamize the portions of the streets occupied by its tracks whenever the other portions of the streets are paved or macadamized is not limited to original construction, but requires the company to lay a pavement corresponding with a new pavement laid down by the proper governmental authority though the portion of the street occupied by the company had previously been macadamized.</p> <p>Same — obligation to conform to street improvements.</p> <p>Under section 864, R. L., the duty is imposed on the street railway company to pave its portion of the street so as to conform to a new pavement laid down on the rest of the street by the city and county of Honolulu, whether the duty is enjoined by section 838, R. L., or not. The word “Territory” as used in section 864, is equivalent to “Government” and includes street improvements made by the municipality.</p> <p>Same — discretion of superintendent of public works as to- directing kind of pavement.</p> <p>The obligation of the street railway company as to paving is defined and fixed by the franchise act. The superintendent of public works has no discretion to authorize or direct the laying of a pavement of a kind different from that used by the government.</p> <p>Same — necessity for repaving streets.</p> <p>The necessity for repaving the streets is to be determined by the governmental authorities having charge of such work. And in prescribing the kind of pavement to he used the authorities ' are not limited to that which was in ordinary use at the time of the granting of the franchise.</p> <p>Same — reasonableness of requirement to repave street.</p> <p>Notice to the railway company that it shall conform to a patented bitulithic pavement laid upon a concrete foundation put down on a certain section of King street, in Honolulu, by the municipal authorities does not constitute an unreasonable requirement, it not appearing that the cost would be excessive or that the owner of the patent contemplated exacting conditions other than payment of the price of the material and the cost of laying the pavement, and no claim being made that the pavement was not an approved one, or that the action of the municipality in laying it was in any way improper or inappropriate, though nearly one-half of the life of the franchise has expired, and at the end of the term of the franchise the ties could be taken up only with much difficulty.</p>

<p>Contracts — evidence of modification.</p> <p>Where the undisputed evidence shows that W. employed T. in Chicago to perform as a singer in. Honolulu for a period of twelve weeks at a stated salary, without any condition as to the theater or theaters in Honolulu at which T. was to appear, . evidence that during a conversation between the parties in San Francisco, while T. was on her way to Honolulu under the contract, W. informed T. that she would appear at a theater operated by the H. A. Co. does not in itself justify a finding that the contract was thereby modified by the addition of a provision that T.’s performance would be at the theater so named.</p> <p>Evidence — mere scintilla.</p> <p>A mere scintilla of evidence is insufficient to support a finding of fact.</p> <p>Certain findings in this case held to be unsupported by evidence.</p>

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

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

<p>Costs — transcript of evidence.</p> <p>Money paid for a transcript of evidence necessary to the consideration of a bill of exceptions may be taxed as costs.</p> <p>Id. — preparation of record, for review.</p> <p>Money paid to tbe clerk of tbe circuit court for comparing, certifying and typewriting tbe record on exceptions to this court may be taxed as costs.</p>

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

<p>Submission Upon Agreed Statement oe Pacts.</p>

<p>Appeal from Circuit Judge, First Circuit, sitting as Commissioner of Private Ways and, Water Rights. Motion to strike papers from the files.</p>

<p>Appeal erom: Court oe Land Registration.</p>

<p>Equity — injunction bond — counsel fees — costs.</p> <p>Counsel fees, as well as costs and other charges or damages, paid or sustained to obtain a dissolution of a restraining order are damages directly and proximately resulting from the issuance of the injunction are recoverable; and such damages may be assessed and awarded in equity, it being within the sound discretion of the circuit judge as to whether or not in each particular case he will himself' dispose of the matter or leave the parties to an action at law.</p> <p>Id. — bond, form and substance of.</p> <p>There is no specific statutory provision relating to injunction bonds. The form and substance of the bond to be filed must necessarily be such as the well established principles of equity require, the determination of which, as well as the application, are matters resting in the sound judicial discretion of the circuit judge.</p>

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

<p>Bond — right of action — happening of contingency.</p> <p>In an action by tbe assignee of tbe executors of W. upon an undertaking to bold tbe executors harmless from a certain judgment, a request addressed by the executors to tbe plaintiff to pay tbe judgment being an essential element of plaintiff’s ease, it is immaterial whether tbe request originated with tbe executors or came from them by way of acceptance of a suggestion made by another.</p> <p>Bond — defenses—failure of contingency to happen.</p> <p>It is a good defense to such an action by tbe plaintiff that tbe payment of tbe judgment was not by tbe plaintiff or at tbe request of the executors hut was by a third person purely in fulfilment of his duty under a separate and distinct written undertaking to hold the executors harmless.</p> <p>Evidence — burden 0† proving happening of contingency named in bond sued on.</p> <p>In such an action the burden is upon the plaintiff throughout to prove the existence of all the facts which would cause the defendant’s liability to accrue and includes the duty to prove, among other things, payment of the judgment under such circumstances that in accordance with the law the rights of the executors as against the defendant survived and were transferred to the plaintiff.</p>

<p>Municipal Corporations — validity of health ordinance.</p> <p>Section 1 of Ordinance No. 30 of the city and county of Honolulu, making it unlawful to expose for sale or to sell from any stock in trade within the municipality any game meat, poultry meat, butcher’s meat, fish or sea food unless the same'shall he protected from dust, dirt, and from contact of and contamination by flies and other insects and from promiscuous handling, and section 4 of said ordinance making it the duty of certain officers to enforce the provisions of the ordinance, and authorizing them to have access to any market, stall, store, stand or other place mentioned in the ordinance for the purpose of inspection, held to he within the power of the city and county of Honolulu to enact; held also that the provisions of those sections do not take property without due process of law; are not unreasonable, uncertain or indefinite or impossible of enforcement; and do not involve a void delegation of legislative power.</p> <p>Same — sufficiency of charge for violation of ordinance.</p> <p>A charge of violating section 1 of said ordinance, in that the defendant “unlawfully and wilfully did expose for sale and sell certain foodstuffs, to wit, meat,” is not demurrable on the ground that it does not designate the kind of meat which the defendant is accused of having exposed for sale and sold.</p>

<p>Evidence — circumstantial—inferences.</p> <p>In a case of circumstantial evidence, there being evidence of certain facts, if believed by the jury, from which facts inferences of guilt can reasonably be drawn by the jury, the verdict cannot be disturbed. In reaching its conclusion the jury is at liberty to accept and act upon the evidence consistent with the theory of guilt and to reject the evidence inconsistent therewith, provided the verdict returned id supported by evidence as to all the essential and material elements of the crime charged.</p> <p>Id. — admissibility of testimony.</p> <p>At the time the defendant was arrested the officers, for the purpose of making an examination of his person, directed him, but without the use of any force, or threats,' or the holding out of ' any inducement,' to remove a portion of his clothing, which he did without objection. The purpose of the examination thus made was to obtain proof of a physical fact, and not to compel the defendant to be a witness against himself. At the trial of the defendant testimony by one of the officers as to the result of the examination was admissible.</p> <p>Id. — admissibility of evidence.</p> <p>A statement in the nature of a confession made by a person while in jail and before any charge is entered against him, made in the presence of the deputy city and county attorney and police officers, and without the advice of counsel, but made freely and voluntarily, is admissible in evidence.</p>

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

<p>Appeal from Circuit Judge, First Circuit. Motion for extension of time for filing necessary papers on appeal.</p>

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

<p>Set-off and Counter-claim- — judgment.</p> <p>D having obtained a judgment against S, husband of the plai.n- , tiff in this action, assigned the judgment to K, one of the defendants. The defendants sought to set up this judgment as a partial defense against the plaintiff’s claim against them. Held, that the plaintiff’s claim, a promissory note delivered to her by the defendants for a valuable consideration moving from her, was her individual property and free from any claim which the defendants may have against her husband.</p> <p>Exceptions, Bill of — sufioiency.</p> <p>The mere statement in a bill of exceptions that the defendants “except to the decision” of the court, is not sufficient to bring to this court any question or error for review. One of the essential, purposes of an exception is, that the attention of the trial court is thereby specifically called to a particular point of law going to the legal sufficiency of the ruling made, thus affording the court an opportunity to correct the supposed error.</p>

<p>Petition eor Writ oe Prohibition.</p>

<p>Appeal erom District Magistrate oe North Kona.</p>

<p>Estoppel — nature of representation essential to constitute an estoppel in pais.</p> <p>A representation in order to give rise to an estoppel need not necessarily have been made directly to the person claiming the estoppel with the intention that he in particular should act upon it. It, is enough that it was made under such circumstances as would warrant the assumption that the party making the representation must have understood that one knowing of it might reasonably believe it to be true and act upon it. A representation may consist of acts and conduct as well as of words, but in any case, in the absence of a fraudulent intent, the act, conduct or words must have been so clear, definite and unambiguous as to cause one, as a reasonable person, to form a belief of an existing fact.</p> <p>Same — when question of law.</p> <p>When the facts which are claimed to constitute an estoppel are undisputed the question whether an estoppel exists is one of law.</p> <p>Costs — liability of sheriff for.</p> <p>In an action of replevin brought against a sheriff to recover property held by him under a writ of attachment issued in an action between private persons where the plaintiff obtains judgment the costs may be taxed against the defendant.</p>

<p>Taxation ok Costs.</p>

<p>Divorce — extreme cruelty.</p> <p>Extreme cruelty, as a ground of divorce, implies physical injury either actual or apprehended. Personal violence need not he shown, hut a state of unhappiness involving mental suffering which is not such as to impair the health does not amount to extreme cruelty.</p>

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

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

<p>Ejectment — prima facie case.</p> <p>In an action of ejectment the plaintiffs make out a prima facie case by evidence of adverse possession which shows that title to the land in controversy was acquired by one from whom the plaintiffs take! title by right of inheritance through their adopting parent.</p> <p>Adoption — agreement for — Act 83, L. 1905.</p> <p>If an agreement of adoption, by which the adopting parent “cov- - enants and undertakes to give” the adopted child the same rights in her estate after her decease as though the child were her natural child, is not sufficient of itself to confer the right of inheritance, the statute (Act 83, L. 1905), gives the agreement full force and effect in that regard by clothing the adopted child with the right of inheritance.</p> <p>Limitation oe Actions — conflicting evidence — nonsuit.</p> <p>It is error to grant a motion for a nonsuit at the close of the plaintiffs’ case, in an action of ejectment, even if there is some evidence tending to show that the defendant took possession of the land more than ten years before the plaintiffs began the action, there being also evidence tending to show the contrary. The court should not grant a motion for a nonsuit on conflicting evidence.</p>

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

<p>Courts — opinions—confession of judgment.</p> <p>Tbe statutory requirement that in jury-waived cases tbe trial court’s “decision shall be rendered in writing stating its reasons therefor” does not apply in a case in which the defendant confesses judgment for a specified sum and the plaintiff accepts the confession.</p> <p>Judgments — coillateral attack, — evidence delwrs the record.</p> <p>The recital in .a formal judgment regular and valid on its face that it was entered by the court cannot be contradicted in a collateral proceeding by evidence dehors the record.</p>

<p>Reserved Question from Circuit Judge, First Circuit,</p>

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

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

<p>Elections — nomination- papers construed.</p> <p>A nomination paper which is dated at Wailuku, Maui, in the second senatorial district, which recites that an election for senators for the second senatorial district has been ordered, and requests the addressee to be a candidate for “senator for the Territory of Hawaii,” and nominates him as a candidate for “said position,” and is signed by the required number of electors, all of whom are electors of the second senatorial district, and to which is appended a written acceptance and declaration signed by the addressee that he is “qualified to be a candidate for senator for the second senatorial district,” is construed and held to be a request to and nomination of the addressee to be a candidate for senator for the second senatorial district of the Territory. A paper in general form similar to that above described purporting to nominate the addressee to be a candidate for “representative for the Territory of Hawaii,” held to be a request to and nomination of the addressee to be a candidate for representative for the third representative district of the Territory.</p> <p>Same — statement by candidate of party affiliation or nompartisansMp.</p> <p>The failure of a candidate to state, at the time of filing his nomination paper, by what political party he is nominated or his non-partisanship, will not require or justify the omission of the candidate’s name from the official ballot.</p>

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

<p>Prohibition — general rule — exceptions.</p> <p>The general rule is, that prohibition will not be granted until the question of jurisdiction has been raised without success in the lower court. To this general rule, however, which is one of practice rather than of jurisdiction, there are exceptions.</p> <p>Id. — enforcement of execution, prevented.</p> <p>A writ of prohibition to prevent the enforcement of an execution on the ground of the invalidity of the judgment will be refused where there is an adequate remedy, either by motion in the lower court, or by appeal.</p>

<p>Appeal prom Tax Appeal Court Second Judicial Circuit.</p> <p>Appeal prom Tax Appeal Court Eourti-i Judicial Circuit.</p>

<p>Equity — injumction—bond—oounsel fees- — costs.</p> <p>Damages consequent upon the dissolution of a temporary injunction are not recoverable in the absence of a bond to secure their payment, unless malice and want of probable cause in the procurement of the injunction are shown. In such a case counsel fees are not taxable as costs.</p>

<p>Arbitration and Award — jurisdiction—entry of submission as a rule of court — revocation.</p> <p>Under chapter 142, R. L., relating to arbitration, to give the court jurisdiction over the subject matter and the parties it is necessary that the written submission he entered as a rule of court; and until the submission is so entered either party may revoke the agreement, regardless of whether the award has been already placed on file..</p> <p>Id. — entry of rule of court, mine pro tunc.</p> <p>In a proceeding under the chapter named a submission to arbitration may not, after revocation of the agreement by one of the parties, he entered as a rule of court as of the date ¡of the acknowledgment of the submission before the judge.</p> <p>Id. — judgment without rule of court.</p> <p>A judgment entered upon an award without the submission having been first lawfully entered as a rule of court is invalid.</p>

<p>Landlord and Tenant — relief in equity against forfeiture of lease.</p> <p>Equity will not relieve a lessee from a forfeiture for breach, of condition where the breach has been wilful and persistent and was not induced by any act of the lessor.</p>

<p>UsurY' — transaction not usurious.</p> <p>There being no evidence ol any benefit or advantage exacted by the lender from the borrower in addition to the agreed rate of interest of twelve per cent, per annum, the transaction is not usurious.</p> <p>Landlord and Tenant — taxes on improvements.</p> <p>Where a lease requires that the lessee pay the taxes on the improvements made or erected on the land, the lessee is not liable for taxes on increased value due to the filling in of the land.</p>

<p>Appeals erom Tax Appeal Court, Third Judicial Circuit.</p>

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

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

<p>Exceptions from Circuit Court, First Circuit. Motion to amend opinion.</p>

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

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

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

<p>Records — registration of title to land — nature of proceeding — unassigned dower.</p> <p>A proceeding to bring land under the statute providing for the registration of titles partakes of the nature of a suit in' equity, and the court of land registration has power to decree in whom the title or any- interest, legal or equitable in land is vested, whether in the applicant or in any other person. The court, in the exercise of its powers, will recognize the right and power of a widow over her unassigned dower, and will sustain her contracts in relation thereto, when fairly made, and will also protect the rights of the assignee of such dower.</p> <p>Equity- — amendment of decree l>y motion.</p> <p>A decree, if the right has not been lost by negligence, or by unreasonable delay, may be amended on motion as to mere clerical errors, or by the insertion or striking out of any matter which would have been inserted or omitted as a matter of course if it had been asked for at the hearing as necessary or proper to carry into effect the decision of the court.</p>

<p>Principal and Agent — agent to procure purchaser — procuring cause of sale.</p> <p>A broker employed to procure a purchaser for land who finds a prospective purchaser who is able and willing to buy and starts negotiations which result in the coming together of the owner and purchaser in the final relation of vendor and vendee will be regarded as the procuring cause of the sale.</p> <p>Same — ability of purchaser to perform — deed taken in name of trustee.</p> <p>The ability of a purchaser to perform is not open to question where a sale has been effected upon the vendor’s terms, and it does not affect the broker’s right to a commission on the sale that the purchaser borrowed the money with which to pay the purchase price and the deed was. taken in the name of a trustee.</p> <p>Same — transaction closed through second broker — right to commission on sale.</p> <p>The broker who was the procuring cause of a sale will not be deprived of his right to a commission because the transaction was closed through a second broker where the principal had taken no steps to terminate the agency before the purchaser had been procured.</p>

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

<p>Costs — transcript of evidence — effect of stipulation.</p> <p>An expenditure for a transcript ordered by the opposing parties under an unqualified agreement entered into by them that each would pay one-half of the expense is not taxable as costs in favor of the prevailing party.</p> <p>Id. — prevailing party.</p> <p>Costs will be awarded in favor of a party whose exceptions to rulings allowing certain items as costs in favor of the opposite party are sustained, even though other exceptions to the judgment in chief do not prevail.</p> <p>Id. — unnecessary papers.</p> <p>Expenditures incurred in the preparation and filing of papers unnecessarily made a part of a bill of exceptions are not taxable as costs of the appeal.</p>

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

<p>Mortgages — foreclosure for default in payment of interest — insuffieency of tender.</p> <p>In a suit for the foreclosure, for default in the payment of interest, of a mortgage providing that upon default in payment of the principal or the interest the mortgagee may foreclose and apply the proceeds of the sale as far as necessary to the payment of the principal, the interest and the costs, including a reasonable attorney’s fee, tender of the amount of the interest and the costs of court is, in the absence of other defenses, and without a tender of a reasonable attorney’s fee for services to date of tender, insufficient to ward off foreclosure.</p> <p>Pleading — replication in equity — curing failure to reply.</p> <p>If a complainant has omitted to file a replication within the time limited by rule, the court may grant leave to file it after-wards. When proof is necessary to a proper understanding of the case and a hearing upon bill and answer alone may work injustice to the complainant and the filing of a replication will cause no prejudice to respondent, leave to file one should be granted, at least when applied for without unreasonable delay and before the trial is commenced.</p>

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

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

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

<p>Evidence — judicial notice — Hawaiian language.</p> <p>In this jurisdiction tbe Hawaiian language is not to be regarded as a foreign language, but as one of wbicb tbe courts and judges must take judicial notice, and in rendering into English a will written in tbe Hawaiian language tbe courts and judges are at liberty to use tbeir own knowledge of tbe Hawaiian language and may resort for assistance to such trustworthy sources of information as they may deem advisable, or to wbicb tbeir attention may be directed.</p> <p>Wills — construction of — irreconcilable clauses.</p> <p>Where in a will two clauses are found to be in irreconcilable conflict tbe later will generally prevail over tbe earlier unless thereby tbe manifest intent of tbe testator gathered from tbe will as a whole would be defeated.</p> <p>Same — devise of income, rents and profits of land.</p> <p>A gift of the income or the rents, issues and profits of property is to he construed as a gift of the property itself unless from some language in the will it appears that the testator intended something different.</p>

<p>Appeal and Error — second, appeal — record.</p> <p>A previous appeal having been taken in the same cause, it is not necessary on a second appeal to duplicate the copy of the record of the lower court already on file in this court, which copy, together with a copy from, the lower court of so much of the proceedings as have taken place since the cause was remanded on the first appeal, make a complete record.</p> <p>Equity — practice—cause remanded for further proceedings.</p> <p>The complainant, a judgment creditor of a corporation, having filed his bill to reach unpaid subscriptions to the capital stock of the corporation in satisfaction of his judgment, execution having been returned nulla bona, and the trial judge declining to admit the judgment in evidence, the complainant rests and the respondents also rest without putting on any evidence, whereupon a decree is entered dismissing the bill. The complainant appeals and the decree is reversed and the cause remanded with instructions to the trial judge “to receive the judgment in evidence and for such further proceedings as may be proper,” which instruction, in effect, is a direction to the trial judge to resume the hearing at the point where the judgment was offered in evidence and, not only to receive the judgment in evidence, but to proceed according as law and justice might require, the case being reopened for the respondents as well as for the complainant.</p> <p>Evidence — presumptions as to continuity.</p> <p>It is a rule of evidence that where the existence of a fact, condition, or state of things is once established, the law presumes that such fact, condition or state of things, continues to exist as before, until the contrary is shown, or a different presumption is raised. Thus, the original corporators and stockholders of a corporation are presumed to continue the same as when the corporation was organized, and such presumption will so continue until the contrary is shown, or a different presumption is raised.</p>

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

<p>Contracts — effect of illegality — parties in pari delicto.</p> <p>Contracts founded upon an illegal consideration or which contemplate the performance of that which is either malum in se or prohibited by some positive statute are void and one. who has paid money in pursuance of such a contract will, after the contract has been performed and when the parties are in pari delicto ordinarily be denied the aid of the courts in recovering the money so paid.</p> <p>Id. — parties not in pari delicto.</p> <p>Though both parties to the transaction are particeps criminis still if they are not in pari delicto the one less guilty will ordinarily not be denied the assistance of the courts.</p> <p>Id. — malum prohibitum — where penalty on one party only.</p> <p>Where the law has prohibited the act of one only of the parties to a transaction, the one whose act is not prohibited is, when the offense is merely malum prohibitum, not in pari delicto.</p> <p>Id. — unlawful intention on one side only, together with fraudulent representations. '</p> <p>One who, desiring to act lawfully, is induced to purchase contraband opium by the fraudulent representation of the seller, believed and relied upon, that the opium was lawfully imported prior to the enactment of the federal act of February 9, 1909, is not in pari delicto with the seller and will not be denied relief by the courts.</p> <p>Assumpsit — money had and received — money obtained by fraud.</p> <p>An action for money had and received will lie to recover money obtained by the defendant from the plaintiff by deceit. The law implies a promise by the defendant to repay it to the plaintiff.</p> <p>Id. — defense that money was paid to another.</p> <p>One who has induced another to purchase opium by the fraudulent representation that the opium was lawfully imported and is a lawful subject of commerce and has by means of the representations obtained money from the purchaser, cannot set up, in defense to a suit for the money so obtained by fraud that he acted as agent for the United States and has paid over the money to his principal.</p>

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

<p>Appeal prom District Magistrate oe Makawao.</p>

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

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

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

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

<p>Statutes — prospective and retrospective — construction.</p> <p>The rule that a statute is to he construed as having only a prospective and not a retrospective operation has no application to a' statute where the legislature in plain and unambiguous terms has expressly made it retrospective. With, such a statute there is no room for construction.</p> <p>Taxation — rate on. income derived during the year 1912.</p> <p>The rate of the so-called conservation tax on income derived during the year 1912 was reduced from two per cent, to „one per cent, by Act 164, Laws of 1913, the act being expressly made retrospective in its operation whereby the year 1912 was, in effect, designated as the first taxation period thereunder.</p>

<p>Assumpsit, Action of — definition—breach of contract.</p> <p>A declaration for the recovery of damages for the non-performance of a parol contract to give plaintiff employment for a stated time at a specified compensation states a cause of action in assumpsit.</p> <p>Costs — assumpsit—attorney’s commissions.</p> <p>In such a case attorney’s commissions are, under R. L., §1892, -taxable as costs in favor of the prevailing party.</p>

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

<p>Submission Upon Agreed Statement or Facts.</p>

<p>Limitation oe Actions — action for taxes.</p> <p>The statute of limitations does not run against the Territory in an action to( recover taxes.</p>

<p>Principal and Agent — implied authority — revenue stamps.</p> <p>An agent instructed to collect a sum named as the purchase price of certain leases, which the "principal had agreed to transfer to the purchaser by a “good and sufficient deed of assignment,” and to deliver the assignment, has implied authority to permit the purchaser to1 retain out of the agreed consideration the amount of the cost of the revenue stamps required by law to he affixed to the instrument.</p> <p>Id. — ratification of authorised act of agent.</p> <p>A principal must disavow the unauthorized act of his agent within a reasonable time after the fact has come to his knowledge or he will he deemed to have ratified it.</p> <p>Id. — burden of proof — presumption as to silence.</p> <p>The burden of proving a ratification of the unauthorized act of an agent is upon the party relying upon it. There is no presumption, either of law or of fact, that a principal was silent when it was his duty to speak or that circumstances existed upon which a claim of ratification may he based.</p> <p>Id. — breach of duty — burden of proving damage.</p> <p>In an action on the case for breach of duty by an agent by paying, contrary to his instructions, claims presented against the principal, the burden is upon the plaintiff to prove the extent of his damage by showing that the claims were unfounded either in whole or in part or that facts existed which would have reasonably enabled plaintiff to make a favorable compromise of the claims. Covenants — collection of rents — breach.</p> <p>The collection of rents payable in advance under the terms of the leases, at the times prescribed in the leases and prior to the assignment, is not a breach of a covenant, in an assignment of the leases, that “no rents reserved * ■ * * have been collected * * * except such rents as are now due and payable pursuant to the terms of the leases.”</p>

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

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

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

<p>Appeal prom District Magistrate op Wailuku.</p>

<p>Evidence — attested instruments — mode of proof.</p> <p>In this jurisdiction it is not necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite. Such an instrument may be proved by admissions or otherwise as if there were no attesting witness thereto.</p> <p>Names — variance—Anglicizing foreign names.</p> <p>In pleading extreme strictness is not required in writing in English a Japanese name.</p> <p>Evidence — inconsistency with pleading.</p> <p>In assumpsit an answer admitting that the amount sued for is due to seven persons named renders untenable at the trial a claim that the debt is due to the seven persons and certain others as partners.</p>

<p>Appeal and Error — when writ of error may he had — execution subsequently satisfied. '</p> <p>Under Sec. 1869, R. L., “a writ of error may be had by any party deeming himself aggrieved by the * * *” judgment of any court, “except the supreme court, * * * at any time before execution thereon is fully satisfied, within six months from rendition of judgment;” and, where a writ of error is had at 2:05 p. m. and execution, which was issued at 11:45 a. m., is returned at 3:30 p. m. satisfied, the writ, notwithstanding the subsequent satisfaction of the execution, was properly had and the assignments of error may be examined.</p> <p>Id. — application for writ of error — prayer therefor.</p> <p>A writ of error in civil cases issues as a matter of right upon application ‡0 the clerk, by any party to the original cause or by any personal representative of a deceased party, and such application need not contain a prayer for the writ.</p> <p>Parties — garnishee without interest in proceedings in error not a necessary party.</p> <p>Where a bank as garnishee appears in the court below and makes disclosure showing funds in its possession to the credit of the defendant in excess of the amount of the plaintiff’s claim, as well as in excess of the judgment thereafter rendered, and there being no question or dispute as to the amount of the deposit in the bank to the credit of the defendant, and it appearing that the garnishee has no interest in the litigation or in the result thereof, such garnishee is not a necessary party to the proceedings in error brought by the plaintiff in error (defendant below).</p>

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

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

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

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

<p>Reserved Questions erom Circuit Court, Eourth Circuit.</p>

<p>Appeal erom Tax Appeal Court, Eirst Taxation Division.</p>

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

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

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

<p>Courts — stare decisis.</p> <p>The court declines to reconsider the questions decided in Natíaolelua y. Heen, 20 Haw. 372 and 613, nothing new or different having been advanced in the way either of argument or authorities and the court being satisfied that the conclusion reached in that case was correct.</p>

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

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

<p>Carriers — 6ill of lading — presumption of ownership.</p> <p>The presumption of ownership of property arising from the possession of a hill of lading indorsed to the order of the holder may •be explained or rebutted by other evidence showing where the real ownership lies.</p> <p>Estoppel — till of lading — warehouse receipt.</p> <p>The plaintiff being the owner of certain cement in Los Angeles shipped the same by rail to San Pedro, the bill of lading therefor being indorsed to the order of T, a special agent of plaintiff for the sale of the cement in Honolulu. On arrival of the cement in Honolulu it was stored in warehouses in the name of T, who, by the terms of the agency agreement, was to assume all expenses of unloading, storing and marketing the cement. T bartered the cement for a ship. Held, that the plaintiff, in an action of trover, was not estopped to assert its title to the cement as against the defendants who received certain of the cement or proceeds of sales thereof crediting same against antecedent debts of the former owner of the ship.</p>

<p>Contracts — substantial performance — right of recovery.</p> <p>When a structure has been completed in accordance with the specifications save only as to slight or unimportant defects caused by inadvertence or unintentional omissions and capable of being remedied at a comparatively small, ascertainable cost, and the building is not unfit for the use for which it was intended, the builder has a right of action against the owner for the unpaid balance of the contract price less the sum which it will cost to remedy the minor defects.</p> <p>Mechanics’ Liens — completion of building — abandonment.</p> <p>A building is to be deemed complete, within the meaning of the statute relating to the liens of mechanics and materialmen, upon abandonment by the contractor when the building is substantially but not entirely completed and the owner takes no steps to complete it.</p>

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

<p>Executions — officer's return.</p> <p>A sheriff’s return to an execution is not conclusive against a stranger to the proceeding in which the writ was issued whose rights are affected by it.</p> <p>Same — levy on growing crop.</p> <p>Where an officer purporting to levy an execution on a growing crop of sugar cane merely read the writ to the execution defendant and posted the usual notices of sale in public places, but did not go to the premises where the cane was growing, did not see the property sought to be levied on, never obtained possession of it, and made no indorsement of the attempted levy on the writ until the return was made after the sale of the property, held, that no valid levy was made.</p> <p>Same — title of purchaser where levy invalid.</p> <p>In order that a sheriff’s sale of personal property taken upon execution shall vest in the purchaser a good title it is indispensable that a valid levy shall have been made.</p>

<p>Easements — statute of frauds.</p> <p>A way appurtenant to land is an easement — an interest in the land across wbicb it runs — which under the statute of frauds, as well as at common law, may not be created by parol.</p> <p>Licenses — ¡parol license revocadle.</p> <p>A parol license for a right of way over the land of the licensor, where no expenditures of money have been made or improvements constructed in reliance upon its assumed permanency and the status quo may be restored without loss to the licensee, may be revoked at the will of the licensor.</p>

<p>Judgments — construction—reference to other parts of record.</p> <p>If from the decree in a cause there he uncertainty as to what was really decided, resort may he had to the pleadings, the testimony, the findings and the opinion of the court.</p> <p>Id: — decree in partition — adjudication of title.</p> <p>Examined in the light of the pleadings, the evidence and the opinion of the court, a decree that the complainants in a suit in equity for partition “take nothing hy the bill” is held to have been an adjudication that the. petitioners had no title to certain land sought to be partitioned.</p> <p>Id. — res judicata — determination of title in equity suit for partition.</p> <p>The determination of the title to real estate hy a court of equity in a suit for partition, made without objection by any of the parties and not appealed from, is valid and binding upon the same parties and their privies in a subsequent action involving the same land.</p>

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

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