Volume 22 — Hawaii Reports

<p>Husband and Wife — agency of wife for husband.</p> <p>The marital relation does not create a wife the agent of her husband to state an account on his behalf.</p> <p>Id. — necessaries—proof of delivery.</p> <p>In an action against the husband for goods sold and delivered to the wife, recovery cannot be had without proof of delivery.</p>

<p>Mutual Benefit Insurance — expense incurred in suit to recover mortuary benefit.</p> <p>A member of a benefit society having designated a beneficiary, thereafter designates the same beneficiary with- others. In a suit brought by the beneficiary first named against the society to recover the mortuary benefit, • the expense incurred by the society in the suit, under the by-laws of the society, shall be deducted from the benefit when paid, notwithstanding that the suit was decided in favor of the beneficiary and against the society.</p>

<p>Estoppel — misrepresentation—knowledge of facts.</p> <p>In order to establish an estoppel- based upon a misrepresentation of a material fact the party asserting the estoppel must show that he relied on the truth of the representation, and it is a rule of general application that there can be no estoppel for misrepresentation where the party asserting it knew the facts or had at hand ready means of ascertaining them before he acted,</p>

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

<p>Costs — on appeal — irrespective of final judgment.</p> <p>The party who prevails upon a writ of error is entitled to the costs of the appeal even though final judgment in the original action is against him.</p>

<p>Deeds — validity—menlal capacity.</p> <p>Where advantage has been taken of a person of weak or impaired mind to consummate with him an unconscionable bargain, equity will set it aside.</p> <p>Evidence — mental condition — opinion.</p> <p>An ordinary witness called to testify as to the mental condition of another should be required to state, at least in a general way, the facts upon which his opinion is founded.</p> <p>Same — sufficiency of offer of proof.</p> <p>Where offers of proof were made of the opinions of witnesses as to the mental condition of the plaintiff without outlining the facts upon which the opinions were based, held, that the objections being on general grounds only the witnesses should have been examined.</p>

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

<p>Statutes — language of — opium—yen shee.</p> <p>A statute (Act 144, Laws of 1913) which declares that “any person who shall use or smoke opium or have the same in his possession,” except as provided in sections 1399 and 1401, R. L., “shall be guilty of a misdemeanor and shall be punished” as therein prescribed, is not violated by one who uses or smokes yen shee or has the same in his possession.</p>

<p>Trusts — contingent interest — resulting trust — interest by implication.</p> <p>H, on March 27, 1909, delivered to C a certificate of stock in a corporation made out in_the name of C as trustee for L, a recently married daughter of H, together with a letter in which it was stated inter alia that “the trust for Lottie Lee is to cause the dividends to be paid to her during the three years from January 1st next and if she shall then he living to transfer the shares to her or hold them in trust for her benefit as she may in writing request, unless at the end of three years she shall have no child living, in which case the trustee is to hold the stock paying' her the dividends during her lifetime, with power to change the investment and vary it at any time at discretion and at her death to divide the trust funds or securities equally among her sisters who shall then he living, and if none shall then he living among their children then living, my object being, as Mr. Chafer will observe, that as to these additional 585 shares they shall remain in my family.” The letter contained other directions with reference to other certificates of stock given at the same time either directly or in trust for other daughters. L gave birth to a son on August 30, 1909, and died on September 3, 1909. After the delivery of the letter and certificate to C the dividends on the stock were forwarded to L by H or C, receipts therefor being given by L to C as trustee. After the death of L, C paid the dividends to H and finally endorsed and delivered back to H the certificate of stock which thereupon was given by H to his daughter M. Held, that the gift of the stock to L was contingent upon her being alive on January 1, Í913; that the gift lapsed upon the death of L and the trust resulted to H; that there was not an implied gift to L’s son upon the death of his mother; and that the gift of the dividends was intended to he solely to L personally, was contingent upon her being alive at the time the direction to pay was to take effect, and lapsed by reason of her death before that time.</p>

<p>Evidence — admissions in pleadings in another suit.</p> <p>The allegations in a pleading in one suit, while open to explanation or rebuttal, are receivable as against the party in a subsequent suit as his solemn admission of the truth of the facts so alleged.</p> <p>Quieting Title — admission in pleadings in another suit as proof of title.</p> <p>Upon the trial in a statutory action to quiet title the defendant’s admission in a pleading in another suit of the truth of the fact that at a time stated the title was in a person from whom the defendant then claimed and from whom the plaintiff also claims in the action on trial constitutes evidence, available to the present plaintiff, of the fact mentioned and is prima facie proofs of that fact.</p> <p>Trusts — statute of uses — trust to protect estate. ■</p> <p>If the purpose of a trust is to protect the estate for a given time or until the death of some one, the operation of the statute of uses is excluded and the trusts or uses remain mere equitable estates.</p> <p>Trusts — ratification of lease by trustee — icaiver of right to occupy trust property.</p> <p>Where land is conveyed in trust to pay the rents, issues and profits to D during his life “or in the discretion” of D “to permit him to reside upon” the land “and while so residing to use the same for grazing or agricultural purposes”, ratification by D of a lease by the trustee to another operates as a waiver of D’s right to reside upon and use the land in the manner mentioned.</p>

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

<p>Master and Servant — defective appliance — injury—proximate cause.</p> <p>The defendant having negligently continued the use of a defective cable on its coal conveyor which, by reason of its defective condition, came off certain pulleys designed to hold it in position, and the plaintiff, an employee of the defendant on the conveyor, in attempting to restore the cable to its proper position was injured. The question, whether the proximate cause of the plaintiff’s injury was the negligence of the defendant in failing to furnish a reasonably safe cable for use, is not a question of science or legal knowledge, but a question of fact for determination by a jury.</p>

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

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

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

<p>Territories — legislative powers under Organic Act.</p> <p>By section. 55 of the Organic Act the legislature of this Territory was vested with the power of taxation with all the completeness and effectiveness with which that power is vested in and exercised by the legislature of any of the States, and also the right to legislate in exercise of the police power. — In re Craig, 20 Haw. 483.</p> <p>Constitutional Law- — taxation.</p> <p>Act 99, Session Laws of 1913, was enacted by the legislature of the Territory in the exercise of the power of taxation, and so far as the petitioner in this case has questioned its validity it is held to be not unconstitutional.</p> <p>Same — licenses, payment in full of all taxes as condition precedent to issuing.</p> <p>That portion of Act 99, Session Laws of 1913, which act amends section 1323 of the Revised Laws, as amended, providing “that no license shall be so issued until the applicant therefor shall have filed with the treasurer of the county or city and county a certificate showing the payment in full of all taxes due from said applicant on the date of said application,” does not impose any penalty for the past delinquency nor attempt to punish the applicant for any past offense, hence the same is not invalid as being in conflict with the provision of the Federal Constitution prohibiting the passage of ex post facto laws.</p> <p>Statutes — construction of — proviso.</p> <p>It is not a universal rule that a proviso applies only to the paragraph or clause immediately preceding it. Its application must be gathered from the context and a comparison of all the provisions relating to the subject-matter. The manifest intent of the legislature must be given effect even though the statute should be thereby invalidated. Because the act may be invalid if meaning what it says does not make the words of the act either dubious or ambiguous. In this case held, that the manifest intent of the legislature, as expressed in plain and unambiguous, language, is to require all applicants for licenses, whether to do business in the county or city and county or throughout the Territory, to pay all taxes due, including those delinquent, as a condition precedent to the issuing of the license.</p>

<p>Motions — scope of motion to strike.</p> <p>When an official report, made at the request of the court, responds to the purpose for which it is intended, but contains matters which, in the opinion of a party affected thereby, are unnecessary and objectionable, his remedy is not by motion to strike the report as a whole, but by motion to strike out or expunge the objectionable matter.</p> <p>Attorney and Client — disbarment—preliminary iiwestigation — evidence.</p> <p>In a preliminary investigation to determine whether charges made against a practicing attorney should be prosecuted, ex parte affidavits are admissible, and an official report requested to determine the propriety of prosecuting such charges should not be stricken from the files for the reason that it was made upon evidence and ex parte statements made in the absence of the accused attorney who did not have the opportunity to confront and cross-examine the witnesses.</p>

<p>Indictment and Information — grand jury.</p> <p>An indictment is not rendered invalid by reason of the participation in the finding of it of a grand juror who had been instructed by the court to take no part in the deliberations of the jury concerning another and different charge against the accused, as to which the juror had formed an opinion adverse to the accused in the absence of evidence of general bias or prejudice on the part of the juror.</p> <p>Embezzlement — county employee — evidence of office routine.</p> <p>Where the duties of an officer or employee of a county are not defined by any law or ordinance the prescribed or established v practice and routine of the office or department in which he is engaged may be shown in evidence in proof of the allegation that such officer or employee was charged or entrusted with the possession, custody or control of moneys belonging to the county, it not being necessary that his custody of public money as such officer or employee should be expressly authorized by statute or ordinance.</p> <p>Same — ownership of moneys embezzled.</p> <p>On the trial of an employee of a county charged with the embezzlement of certain moneys which were the proceeds of a sale of rock taken from a certain quarry of which the county was in possession it is immaterial that the county had no title or only a defective title to the quarry, the defendant claiming no right or title thereto himself.</p> <p>Same — receipt of money wider color of authority — estoppel.</p> <p>One who has collected money under color of authority cannot defend against a prosecution for embezzlement on the ground that he was not authorized to collect it.</p> <p>Same — proceeds of sale of county property — validity of sale.</p> <p>It is no defense to a charge of embezzlement of moneys derived from a sale of property by a county that the sale was not made in the manner prescribed by statute.</p>

<p>Landlord and Tenant — summary possession — title—jurisdiction.</p> <p>In a summary proceeding, plaintiff alleged a wrongful withholding by defendant after expiration of a parol lease; defendant filed a plea to the jurisdiction of the district court, supported by affidavit, denied the tenancy alleged, and alleged possession and right of possession under a written lease for years executed to another and by the latter assigned to him: held, that the title to real estate had “come in question,” and the district court was ousted of jurisdiction.</p> <p>Same — primary question.</p> <p>In a summary proceeding by the landlord, to obtain possession of land from the tenant, the primary question is the restoration of the landlord to possession, and issues of title cannot be determined.</p> <p>Courts — jurisdiction of district courts.</p> <p>District courts are courts of limited jurisdiction and can only act within the authority vested in them by law.</p>

<p>Trial — improper remarles of judge.</p> <p>In a criminal prosecution, where there is no lack of evidence to support a conviction, impatient and improper remarks of the court to defendant’s counsel will not warrant a reversal. The evidence must be looked to to ascertain whether the verdict is responsive to it or to extraneous matter. In this case held, that while the remarks of the judge were improper and apparently uncalled for they do not warrant a reversal of the case.</p> <p>Exceptions, Bill op- — exception to instruction — too general.</p> <p>A general exception to the oral charge given by the court, when such charge consists of a series of propositions, cannot be sustained if any portion thus excepted to is sound.</p> <p>Criminal Law — leeeping house of ill fame.</p> <p>Under section 3162, Revised Laws, the term “house of ill fame” is no doubt a synonym for “bawdy house,” having no reference to the fame of a place but denoting a fact. The gist of the offense is the keeping and use of the house for purposes of prostitution and lewdness and not its reputation. The statute does not require that the place be used habitually or for any considerable length of time for the prohibited purposes in order to constitute the offense in question.</p>

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

<p>Bills and Notes — statute of limitations — payment l>y co-malcer.</p> <p>The payment of interest by one of two joint and several makers of a promissory note within the period of limitation will start the statute of limitations to run afresh as to the other, as well as the one who made the payment, though the payment was made without the knowledge or authorization of the other.</p>

<p>Statutes — Act 52 of the Session Laws of 1913 construed.</p> <p>The reference in "section 3 of Act 52 of the Laws of 1913 to sections 2 and 3 of Act 143 of the Laws of 1911, had the effect of making the provisions of those sections applicable to claims to be paid under the Act of 1913; and held, therefore, that the auditor was justified in refusing to issue warrants for the payment of claims under the later act which had not been examined and approved by the treasurer in accordance with the requirements of the earlier act.</p>

<p>Garnishment — seaman’s wages.</p> <p>The wages of a seaman who has not shipped through a shipping commissioner, but directly employed by the owner of a vessel engaged in the merchant trade between ports in this Territory, are subject to garnishment. Affirming SohnaoTc v. Glarh, 21 Haw. 661.</p>

<p>Bankruptcy — Act of 189S — jurisdiction to determine debtor’s claim for exemptions.</p> <p>The adjustment of the debtor’s claim for exemptions is a matter which pertains to the administration of the bankrupt estate over which the court in which those proceedings are pending has exclusive jurisdiction.</p> <p>Same — trover for property claimed as exempt.</p> <p>As a predicate to the right to maintain trover for the conversion of property claimed as exempt the bankrupt must first show that the property with respect to which he seeks to prosecute his action has been determined by the court in which he was adjudicated a bankrupt to be exempt property.</p> <p>Exemptions — burden of proof.</p> <p>The burden of proving the exemption is on the party claiming it and his right thereto must be shown by conclusive proof.</p>

<p>Pleading — MU in equity — exhibits.</p> <p>Where a record or other writing constitutes a substantial part of the claim upon which a complainant seeks relief it may be pleaded by describing it and averring its substance and legal effect, or it may be referred to in the bill and a copy annexed as an exhibit, but a judicial record merely referred to with a prayer that it be judicially noticed as if set out in full is not thereby made a part of the bill of complaint.</p> <p>Landlord and Tenant — failure of lessor to deliver ■possession — relief in equity.</p> <p>The failure of the lessor to give the lessee possession, or the. inability of the latter to obtain possession of the demised premises, is available by way of defense in an' action at law to recover rent irrespective of the presence or absence of fraud on the lessor’s part. Such an action, or the enforcement of a judgment obtained therein, will not be enjoined where the defense was not presented through the choice or fault of the defendant in the. action unmixed with any fraud, fault or negligence on the part of the plaintiff, nor, under such circumstances, will equity compel the return of money paid in satisfaction of such a judgment.</p> <p>Same — tenants in common — possession—rent.</p> <p>Where the lessor and lessee are also tenants in common an ouster of the lessee by the lessor would constitute a defense to» a claim for rent, but tbe mere retention of possession by tbe lessor would not constitute an ouster of tbe lessee nor terminate tbe obligation of the latter to pay rent.</p> <p>Same — claim for rent voluntarily paid — laches.</p> <p>Complainant’s laches will defeat a claim in equity for tbe return of rent voluntarily paid under a lease where, if complainant ever bad any ground for making such claim, over fourteen years have elapsed since it arose.</p>

<p>Statutes — effect of amendment — amendment of statute previously amended.</p> <p>Where a statute amends a prior act or section of a statute “so as to read as follows,” making changes in or additions to the original enactment, and setting forth the law as so amended, those provisions of the original enactment which are retained are regarded as having been in force from the time of the original enactment and continued in operation by the amendatory statute, the omitted parts being repealed, and new provisions becoming operative as of the time when the amendatory act took effect. A second amendatory act need not purport to amend the first amendatory act, but will be effective if it refers to the original enactment only.</p> <p>Mortgages' — foreclosure by sale — publication of notice.</p> <p>Under R. L. Sec, 2161, as amended by Act 108, Laws of 1911, it is sufficient to publish mortgage foreclosure notices in the English language only.</p>

<p>Aureal prom Circuit Judge, Hirst Circuit.</p>

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

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

<p>Judgment — nonsuit.</p> <p>A judgment of nonsuit is no bar to another action for tbe same cause. Yivas v. Aswan, 11 Haw. 282.</p> <p>Same — nonsuit—res adjudicata.</p> <p>A judgment of nonsuit is not an adjudication on tbe merits but leaves tbe parties in tbe same condition, so far as tbe cause of action is concerned, as tbougb no action bad been instituted, and bence cannot constitute res adjudicata.</p>

<p>Submission Upon Agreed Statement op Eaots.</p>

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

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

<p>Courts — circuit judge at chambers — jurisdiction—garnishment.</p> <p>The expression “circuit judge (or court) at chambers” has two meanings in the statutes of this Territory. It may refer either to the independent jurisdiction exercised at chambers pursuant to R. D. Sec. 1648, or to the incidental jurisdiction exercised at chambers in connection with or ancillary to an action at law. A proceeding for the attachment of a debt due a judgment debtor pursuant to R. L. Secs. 2117, 2118, may be had in exercise of the jurisdiction of the latter kind.</p> <p>Garnishment — attachment of debt after judgment — form of order citing judgment debtor.</p> <p>Under R. L. Sec. 2117, the direction to the judgment debtor should be to appear for examination as to any and what debts are owing to him, but it is not such a defect as to require the quashal ' of the order that the direction was to appear and show cause why a particular debt due to him should not be attached and paid to the judgment creditor. Both debtor and garnishee may be summoned at the same time and pursuant to the one order.</p>

<p>Quieting Title — statutory action — adverse claim.</p> <p>One in possession of land claiming title thereto in fee simple under a will, may maintain an action to quiet title under R. L. Chap. 132, against one who, under the same will, claims a remainder in fee in the land contingent upon the death of the party in possession without heirs of his body, such claim being an adverse one within the meaning of the statute.</p> <p>Wills — construction—^repugnancy—general mid, specific provisions.</p> <p>The rule that where two clauses in a will are in irreconcilable conflict the later one will prevail does not apply where a contrary intent has been manifested. Where there is an inconsistency between a general and specific provision the latter will prevail regardless of the order in which it stands in the will, the presumption being that the testator intended that the specific provision would operate upon the property mentioned in it and the general provision upon other property.</p>

<p>Equity. — pleading—proper parties to bills.</p> <p>One who has an interest in the subject matter of a suit in equity, -though not interested in the controversy between the immediate litigants, is a proper party to the suit.</p> <p>Same — misjoinder of defendants' — who may raise objection.</p> <p>An objection for misjoinder of defendants may be made only by the defendant improperly joined, at least where his joinder will not affect the decree against the proper defendant.</p>

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

<p>Reserved Questions from Circuit Judge, First Circuit.</p>

<p>Pleading — new parties.</p> <p>The plaintiff in a partition' suit presented a supplemental hill and motion seeking to have A made a party defendant, alleging that he, during a portion of the time the suit had been pending, had collected certain rents for a moiety of the land, but did not show that he was a lessee or otherwise interested in the subject matter of the suit; an order directing A to show cause why he should not he made a party defendant was made, and he appeared specially and moved that the order he vacated which was done: Held, that the order to show cause was properly vacated.</p> <p>Parties — partition—lessees.</p> <p>While the lessee of a cotenant of land sought to he partitioned is a proper party to a suit for partition, the rule does not extend to one who is merely shown to have collected rents without showing that he is interested in the subject matter of the suit.</p>

<p>Judgment — partition—res adjudieata — replevin.</p> <p>K, one tenant in common, built a bouse on tbe undivided lands, after which, in partition, the land upon which the house stood was allotted to. another cotenant without reservation to K of the house; held, the decree is res adjudieata, and binding upon K.</p>

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

<p>Counties- — board of supervisors — committee.</p> <p>The power of a county to do ordinary business, and to buy and sell property, is vested in its board of supervisors which may, through one of its members, acting as a committee, sell property, and supervise road work in a given district.</p> <p>Same — presumption from am- agreed custom.</p> <p>It having been stipulated by the parties that P, a member of the board of supervisors for the district of H, sold certain crushed rock; supervised the road work in his district; made up false pay-rolls for road work; approved same and presented them to the board of supervisors which allowed same, after which he received and cashed warrants for the fraudulent claims, and converted money from such sales and fraudulent claims; and, that he acted under a custom existing in the county under which a supervisor made such, sales, supervised road work in his district and looked after the pay-rolls, the law presumes, in the absence of any showing to the contrary, that the board of supervisors had authorized him, as a committee of the board, to make such sales, and supervise such road work, and look after the pay-rolls therefor; and that he was acting in a matter in which he was authorized to act.</p> <p>Principal and Surety- — liability of surety — county supervisor.</p> <p>Where the bond of a county supervisor is conditioned that he will faithfully perform the duties of office prescribed by law, and pay over as directed by law all moneys received by virtue of his office, his surety is liable for money which he receives while acting in a matter in which he is authorized to act, if he wrongfully misapplies such money; as, in doing so, he is not faithfully performing his duty as a county supervisor, but guilty of official misconduct.</p> <p>Officers — bon d — surety.</p> <p>Where an officer acting in a matter in which he is authorized to act, is guilty of official misconduct, he is not faithfully performing his official duties, and he and his surety are liable for resultant damages on his official bond.</p> <p>Pleading — defective, aided by stipulation of facts and judgment.</p> <p>A complaint was defective in that a material fact was not alleged; defendant answered; at the trial the material fact, with other facts, was stipulated, without objection; the plaintiff recovered judgment. Held, that the defect was cured by the stipulation and judgment.</p>

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

<p>Statutes — primary election — construction.</p> <p>The proviso to section 16, Act 151, S. L. 1913, in the following language, to wit, “Provided, however, that any candidate receiving the votes of a majority of the registered voters voting of the district in which he is a candidate shall be thereby duly and legally elected to the office for which he is a candidate at such primary,” construed to require a majority of the votes voted at such primary for all purposes, and not merely a majority of those voting for candidates for the particular office.</p> <p>Same — interpolation in statute.</p> <p>Statutory construction permits the implication of words apparently intended for the purpose of upholding and giving force to the legislative will, hut does not authorize the interpolation of conditions into a statute — additional terms — not found in the statute considered as a whole.</p>

<p>Motion to Dismiss.</p>

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

<p>Garnishment — nature of proceeding — nonresident defendant.</p> <p>The garnishment of a debt due to a nonresident, unless he appears in the action, is a proceeding quasi in rem. Actual service upon the garnishee within the Territory gives the court jurisdiction over the res. Service of process on the defendant is not necessary, but reasonable constructive notice of the attachment must be given.</p> <p>Same — service of process on garnishee sufficient notice to nonresident defendant.</p> <p>Under Sec. 2114 R. L. service of process upon the garnishee is sufficient notice to a nonresident defendant who has never resided in this Territory to enable the plaintiff to bring the action to trial though the garnishee be the mere debtor of the defendant. But before judgment be entered the defendant should have had a reasonable opportunity to contest the plaintiff’s claim.</p>

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

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

<p>Equity — interest of complainant in subject-matter — cancellation.</p> <p>In order to maintain a suit in equity the complainant must have an interest in the subject-matter. In a suit to cancel two deeds, alleged to be forgeries, on the ground that they constitute clouds upon complainant’s title, where it appeared that the complainant had no title to the land described in the deeds, the bill was properly dismissed.</p> <p>Deeds — forged deed void.</p> <p>A forged deed is void and passes no title. The fact of forgery-may be shown at law as well as in equity.</p>

<p>Beneficial Association — scope of poicers of.</p> <p>An incorporated beneficial association is limited to the purposes or object expressed in its charter and when the charter of the association prescribes who shall be the beneficiary of a membership after the death of the member it is not in the power of the company or the member or of both to alter the rights of those who by the charter are declared to be the beneficiaries except in the mode and to the extent therein indicated;</p> <p>Same — by-law—when void.</p> <p>A by-law which is inconsistent with the charter is unauthorized and void.</p> <p>Same — sanie—beneficiary of mortuary fund.</p> <p>Where the charter expressly provides who shall be entitled to receive the mortuary fund after the death of a member the corporation cannot make a by-law extending or limiting the right thus regulated.</p> <p>Same- — sarnie.</p> <p>The designation of a person not entitled to take under the charter of the society does not invalidate the contract but only the designation so that the benefit will go to the person rightfully entitled to take under the charter of the society.</p>

<p>Husband and Wipe — necessaries—legal services.</p> <p>A complaint in assumpsit for legal services rendered by an attorney at the request of a married woman in procuring warrants of arrest against her husband upon charges of assault and battery, in the absence of allegations to the effect that the public officials whose duty it is to issue warrants and prosecute offenses had refused to act, and that the accusations were well founded, and that the services rendered were necessaries, does not set forth a cause of action against the husband.</p>

<p>Reserved Questions erom Circuit Oourt, First Circuit.</p>

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

<p>Appeal from Circuit Judge, First Circuit. Petitions of Respondents for Rehearing.</p>

<p>Equity — finding of trial judge — weight.</p> <p>On an appeal in an equity case the findings of fact made by the circuit judge are not binding on the supreme court, but where the findings rest upon the credibility of witnesses and the weight of oral testimony, and inferences to be drawn from such testimony, and involve the consideration of opinion evidence, the findings of the judge who saw and heard the witnesses are entitled to much weight.</p> <p>Principal and Agent — transactions between — conveyance by principal to agent.</p> <p>'The rule that an agent to sell property may not sell it to himself is not involved in a transaction whereby the principal himself conveys property to his agent.</p> <p>Same — conveyances from principal to agent closely scrutinized — application of rule.</p> <p>Gifts procured by agents and purchases made by them from their principals will be closely scrutinized, and an agent may purchase property from his principal only where he acts in entire good faith and makes full disclosure of all facts within his knowledge affecting the value of the property. The reason for the rule does not apply, however, where there was no prior confidential • relation and the execution of a power of attorney creating the relation and the making of a conveyance of property are parts of one transaction. In such a case, it not appearing that the agent possessed any information concerning the property not possessed by his principal, there being no misrepresentation, concealment, or undue influence on the agent’s part, nor mental incapacity on the part of the principal, a deed conveying property to him will not be set aside though the consideration was inadequate.</p>

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

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

<p>Landlord and Tenant — quiet enjoyment — specific performance — remedy at law.</p> <p>The legal remedy of a lessee for the breach of a covenant for quiet enjoyment is an action of ejectment or an action on the covenant for damages. Specific performance is a purely equitable remedy and is obtainable only in cases where the legal remedy would be inadequate, impracticable or doubtful.</p>

<p>Appeal and Error — failure to find material fact — new trial.</p> <p>Plaintiff, in an action to quiet title, relied upon a deed to her ancestor in which his initials had been inserted by interlineation; some circumstances impressed upon the face of the deed tended to show that the interlineations were made before execution, while others tended to show that they were made after execution, but there was no direct evidence to show when they were made; the trial court failed to find whether the interlineations were made before or after execution of the deed, but gave judgment for defendants: Held, that the time of making the interlineations was a material fact and the failure to find when they were made was reversible error for which plaintiff’s exception to the decision on the ground that it was contrary to law and the evidence must be sustained, and a new trial granted.</p> <p>Alteration of Instruments — evidence■—presumptions.</p> <p>Where a deed, the original draft of which appears to have been altered by interlineations, is introduced in evidence and some circumstances connected with the deed tend to show that the interlineations were made before execution, while others tend to show that they were made after execution, no presumption as to whether the alterations were made before or after execution should be indulged, but the court should find, as a fact, whether the alterations were made before or after execution of the deed.</p>

<p>Divorce' — cross-libel for separation — affirmative relief.</p> <p>Under Act 121, Laws of 1913, which provides that a cross-libel may, be filed in any action for divorce and affirmative relief granted thereon as fully and effectually as in original petitions for divorce, a cross-libel may be filed by the libellee in a divorce action praying for a separation from libellant and in a proper case the relief prayed may be awarded to the libellee upon such cross-libel.</p> <p>Same — public hearing.</p> <p>Under Sec. 2229, Revised Laws, providing that no divorce case shall be heard except openly in the public court-rooms, while it may in certain cases be proper to exclude from the court-room persons of immature years, the circuit judge has no power to hear a case except openly in the public court-room and the taking of testimony by the judge in his private chambers behind closed doors is error for which the case must be reversed.</p>

<p>Appeal prom Circuit Judge, Eirst Circuit. Hon. O. W. Ashpord, Judge.</p>

<p>Executors and Administrators — partial distribution — surcharging account.</p> <p>Where, prior to final settlement, an administrator, by ex parte petition, procures an order permitting him to distribute nearly all the funds in his hands, one-third to the widow, and two-thirds to a son, of the deceased, stating in his petition that they are the heirs of deceased, and makes such payments, after which another child of deceased, a daughter, appears and claims a distributive share in the estate, it is proper to surcharge the accounts of the administrator to the extent of one-half of the amount paid by him to the son.</p>

<p>Arread and Error — instructions—record on exceptions.</p> <p>The general rule applied, that on exceptions to instructions given or requests therefor refused, the charge given to the jury should he in the record</p> <p>Same — writ of error — questions reviewable.</p> <p>Only errors of law apparent on the record are reviewable on error. Facts which do not appear in the record may not be brought to the attention of the supreme court by means of exhibits attached to briefs of counsel.</p> <p>Contracts — maintenance and services — members of family.</p> <p>Where maintenance and services are rendered between relatives living together as one household there is a presumption that they were intended to be gratuitous. In order to recover therefor the plaintiff must overcome this presumption by proving affirmatively either an express contract for remuneration or circumstances showing a mutual understanding or expectation between the parties that there would be compensation.</p> <p>Evidence — scintilla—verdict. .</p> <p>To amount to more than a scintilla the evidence must be of a character sufficiently substantial, in view of all the circumstances of the case, to warrant the jury, as triers of the facts, in finding from it the fact to establish which the evidence was introduced.</p>

<p>Error to Circuit Court, First Circuit. Hon. W. J. Robinson, Judge.</p>

<p>Exceptions prom Circuit Coi/rt, First Circuit. Hon. W. L. Whitney, judge.</p>

<p>Equity — jurisdiction■—master in chancery.</p> <p>It is the usage and practice of courts of equity to refer causes to a master in chancery with directions to hear evidence, and to report findings of fact, and such other matters pertinent to the cause of which the court should be advised, and the power to do so has not been abrogated by section 1648, R. L., but is recognized by section 1834, R. L.</p> <p>Prohibition — want of jurisdiction.</p> <p>.The writ of prohibition will not lie to prevent a master in chancery from proceeding under a reference made in an equity suit, the circuit judge sitting at chambers in equity having jurisdiction to order the reference, as it is only in case of want of jurisdiction that this writ will lie.</p>

<p>Error, to Circuit Court, First Circuit. Hon. W. L. Whitney, Judge.</p>

<p>Contempt — procedure in cases of constructive contempt — formal complaint. In cases of constructive contempt where the facts constituting the alleged offense do not appear of record and are not evident to the court it is necessary to give the court jurisdiction to proceed against the contemnor that a formal affidavit, complaint or information stating the facts he filed as a basis upon which an order to show'cause or attachment may issue.</p> <p>Prohibition — contempt proceedings — void order.</p> <p>A writ of prohibition may be had to Testrain the enforcement of a void order by a circuit court or judge through contempt proceedings though the question of jurisdiction was not first raised in the court below.</p>

<p>Appeal from Circuit Judge, First Circuit. Hon. T. B. Stuart, Judge.</p>

<p>Error to Circuit Court, Third Circuit. Hon. J. A. Matthewman, Judge.</p>

<p>Motion to Dismiss Reserved Question. Hon. O. W. Ashford, Judge. '</p>

<p>Error to Circuit Court, First Circuit. Hon. W. J. Robinson, Judge.</p>

<p>Appeal and Error — exceptions.</p> <p>An exception in the following lahguage, “That thereafter and on to wit: the 14th day of October, 1914, a decision was filed in the above entitled cause by the judge, and to the filing of which decision, the defendant duly excepted and the exception was allowed,” brings to the attention of this court no specific question of law presented to the trial court, and is too general to be considered in the appellate court.</p>

<p>Exceptions prom Circuit Court, Second Circuit. Hon. S. B. Kingsbury, Judge.</p>

<p>Exceptions from Circuit Court, Eirst Circuit. Hon. W. J. Robinson, Judge.</p>

<p>Reserved Question erom Circuit Judge, Eourti-i Circuit. Hon. C. E. Parsons, Judge.</p>

<p>Exceptions from Circuit Court, First Circuit. Hon. C. W. Asi-iford, Judge.</p>

<p>Replevin — right of possession — evidence.</p> <p>In an action of replevin for goods and chattels alleged to have been unlawfully taken and detained, where plaintiff proves ownership and possession at the time of the alleged unlawful taking he has made out.a prima facie case, and the burden of proving any special right of possession in himself is on the opposite party. Same — same—justification.</p> <p>Where a sheriff or party seeks to justify the taking of personal property by virtue of an execution issued upon a judgment, the judgment record and execution must be produced and a levy shown under it.</p>

<p>Exceptions ejrom Circuit Court, Eirst Circuit. Hon. T. B. Stuart, Judge.</p>

<p>Injunction — right to must be clear.</p> <p>Temporary injunctions do not issue as a matter of right except in cases where the right to such relief is- clear and beyond doubt.</p> <p>Same — pleading.</p> <p>The probative facts — not conclusions — showing the right to a temporary injunction must be stated in the bill for injunction, else it will be denied.</p> <p>Same — statute relating to contracts for personal service.</p> <p>Section 10, of the Organic Act creating the Territory of Hawaii, which prohibits suits upon contracts for personal service, except actions for damages for breaches thereof, does not prohibit injunctions to restrain the exhibition or dealing in motion picture films in violation of a contract not to exhibit or deal in such films.</p> <p>Appeal and Error — wrong reason for correct judgment.</p> <p>It is a well established rule that a judgment, order or decree will be affirmed on appeal if the record shows it to be correct, although the trial court may have given a wrong reason for making it.</p>

<p>■Clerks oe Courts — tenure of office.</p> <p>A clerk of the circuit court holds his office during the pleasure of the appointing power.</p> <p>Same — appointment and removal — Sec. 2314 L. 1915 construed.</p> <p>Under section 2314 R. L. 1915, which provides that there shall be as many clerks of the circuit courts as may be necessary, appointed and removable by the judge or judges thereof, as the case may be, beld, that in a circuit where there are more judges than one, the appointment or removal of a clerk requires the presence,, actual or constructive, of all the judges and the concurrent action of a majority.</p> <p>Same — right of de facto officer to compensation.</p> <p>The salary of an office follows the title and when an individual' claims by action the office, or the incidents to the office, he can. only recover upon proof of title.</p> <p>Same — same—title to the office in issue.</p> <p>An officer seeking to compel payment of compensation by mandamus must show that he is an officer de jure and not merely an officer de facto. In such a proceeding his title to the office may be put in issue.</p>

<p>Motion to Quash.</p>

<p>Equity — injunction—jurisdiction.</p> <p>Equity has jurisdiction to protect a legal right in property hy injunction where plaintiff’s right is clear and the court is of the opinion, on the evidence before it, that there is no substantial dispute as to it, though the right is denied and it has not been established at. law. ></p> <p>Same — restraining commission of crimmal acts.</p> <p>Where the issuance of an injunction is warranted by the neces-, sity of protection to legal rights in property, the commission of criminal acts may incidentally be enjoined.</p> <p>Words and Phrases — “or”—“mid.”</p> <p>The word “or” is sometimes used in the copulative sense and as synonymous with “and” in deeds and contracts as well as in statutes. The word will bé so construed whenever it is evident that it was intended to have that effect.</p> <p>Easements — injunction—irreparable injury.</p> <p>Injunction will lie to protect the owner of an easement in its enjoyment when the injury complained of is irreparable, or the interference is of a continuous character, or the remedy at law for damages will not afford an adequate remedy.</p> <p>Appeal and Error- — decree—questions not raised in lower court.</p> <p>While an appeal from a final decree in equity brings up the whole case- for review, a proper decree granting appropriate relief need not be modified merely because it has not expressly covered matters incidental to the main issues as to which no question was raised in the lower court.</p> <p>Injunction — modification of.</p> <p>Where an injunction awarded by a decree in equity is broader than the decree it may be modified upon application to the circuit judge, and the affirmance of the decree on appeal will not preclude such action.</p>

<p>Appeal prom Circuit Judge, First Circuit. Hon. T. B. Stuart, Judge.</p>

<p>Mandamus — courts—jurisdiction.</p> <p>Under the statutes of this Territory in cases of mandamus where the writ is directed to individuals original jurisdiction is vested in circuit judges at chambers, the jurisdiction of the supreme court in such cases being appellate only.</p> <p>Courts — supreme court — appellate court.</p> <p>The supreme court of this Territory is primarily a court of appeal and has such original jurisdiction only as has been expressly, or by necessary implication, conferred upon it by law.</p>

<p>Reserved Question from Circuit Court, First Circuit. Hon. O. W. Ashford, Judge.</p>

<p>Appeal prom Circuit Judge, First Circuit. Hon. W. L. Whitney, Judge.</p>

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

<p>Indictment — demurrer—obstructing the course of justice.</p> <p>An indictment which charges the defendants in one count with having unlawfully, maliciously and fraudulently combined and mutually undertaken and concerted together to obstruct the course of justice by giving to a witness a sum of money to evade giving his testimony in a civil proceeding before the board of license commissioners on a hearing of an application for a license to sell intoxicating liquors; in another count with having unlawfully, maliciously and fraudulently concerted together and did suppress the evidence of a certain witness in such proceeding; in another count with having wilfully intended to prevent and obstruct the course of justice, wrongfully, unlawfully and wilfully, evaded, hindered and prevented the said witness from appearing before said board to give his evidence, and did there and then and thereby suppress the evidence of said witness in such proceeding, is good as against a demurrer on the ground of insufficiency, and such demurrer should be overruled.</p> <p>Same — motion to quash — irregularity in mahing grand jury list.</p> <p>A motion to quash an indictment on the ground of irregularities in selecting the list of persons to act as grand jurors should be overruled, as challenges to the panel, and to individual jurors, can only be made by the prosecuting officer, or by some person held to answer a criminal charge, and must be made before the grand jury is sworn.</p> <p>Statutes — construction—penal statute.</p> <p>Penal statutes should be construed liberally in favor of the accused and should not be extended in terms by construction; but, the object and purpose of such statutes should not be defeated by refusing to give to the language used its obvious and usual signification.</p> <p>Same — same—words and phrases — civil proceeding.</p> <p>In construing a statute which makes it an offense “to obstruct the course of justice * * * in any suit or proceeding, criminal or civil,” the word “proceeding” must be considered as having been used in a broad sense, and not in a restricted one; and, so considered, an application pending before a board of license commissioners for renewal of a license to sell intoxicating liquors is a civil proceeding.</p> <p>Same — same—referring to common law for meaning of statute.</p> <p>Where a statute punishes an act which was a criminal offense at common law, and the statute defines the act in general terms, resort may be had to the common law to ascertain the meaning of the statute.</p>

<p>Error to Circuit Court, Second Circuit. Hon. W. S. Edings, Judge.</p>

<p>Courts — disqualification of judge — pecuniary interest.</p> <p>A circuit judge is not disqualified to hear or determine a partition suit hy reason of a pecuniary interest therein because of his having made an order directing the payment of an attorney’s fee for services rendered for the judge in a prohibition proceeding growing out of the partition suit, out of a fund in court belonging to the parties to the suit, such order having no connection with the subject-matter or issues of that suit.</p> <p>Appeal and Error — final order or decree — order directing payment of money.</p> <p>An order or decree directing the payment of money, other than the payment into court for further disposition, is final in its nature and appealable.</p>

<p>Wills — omissions—supplying words.</p> <p>Where, in a will, there is an entire absence of designation of the object of an intended gift the attempt to make the gift must be held to have failed. Words omitted by the testator may be supplied by the court only when it is clear from the words used what words have been omitted.</p> <p>Same — intention of testator — evidence of surrounding circumstances.</p> <p>Where a will contains a latent ambiguity, or its language is uncertain and indefinite, extrinsic evidence is admissible to show the facts and circumstances that surrounded the testator at the time he executed his will so as to assist the court in ascertaining his intention. But where the testator has omitted to designate, expressly or impliedly, the object of an intended gift, the omission may not be supplied upon extrinsic evidence of intention.</p> <p>Same — extrinsic evidence — declarations of testator.</p> <p>Evidence of declarations made by a testator as to the intent of his will is not admissible to supply an omission consisting in the entire failure to designate the object of an intended gift.</p> <p>Quieting Title — statutory action — litigating title l)etween defendants.</p> <p>Whether in an action to quiet title to land under Ch. 153, R. L. 1915, when the plaintiff has failed to show title, the defendants may litigate a disputed title between themselves, quaere.</p>

<p>Appeal erom Circuit Judge, First Circuit. Hon. T. B. Stuart, Judge.</p>

<p>Exceptions prom Circuit Court, Eirst Circuit. Hon. T. B. Stuart, Judge.</p>

<p>Error to Circuit Court, First Circuit. ITon. W. J. Robinson, Judge.</p>

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

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

<p>Adverse Possession — declarations of person in possession — res gestae.</p> <p>In an action of ejectment, the defense being adverse possession, the declarations of the party in possession of the land as to the nature of his claim are admissible as part of the res gestae and as tending to prove hostility of claim, but statements as to the source of claim or manner of acquiring the possession, being narrations of past transactions, are not so admissible.</p> <p>Same- — declarations made after expiration of statutory period of limitation.</p> <p>It is no objection to evidence of declarations admissible as part of the res gestae that they were not shown to have been made before the expiration of the statutory period of limitation.</p> <p>Same — evidence sustaining burden of proof of hostility of claim.</p> <p>Where one is shown to have been for the statutory period in actual, open, notorious, continuous and exclusive possession of land, apparently as owner, and such possession is unexplained, the presumption is that such possession was hostile.</p> <p>Same- — acceptance of lease hy party claiming title l)y adverse possession from disseisee.</p> <p>The rule is that while a recognition of title of the true owner by the one who has acquired title to land by adverse possession upon the completion of the statutory period will not alone defeat the title so acquired such recognition is evidence to be considered in determining whether the prior possession of the adverse claimant was in fact adverse.</p> <p>Same — continuity of possession — recognition of superior title.</p> <p>Interruption of the continuity of possession occurs when the adverse claimant recognizes the title of the true owner.</p> <p>Evidence — instruments requiring to l>e stamped.</p> <p>The admission in evidence of an unstamped instrument required by law to be stamped, where it has been used by the trial court as the basis of a finding of fact or conclusion of law, is error.</p> <p>Apeeae and Eeeoe — jury waived case — erroneous admission of evidence.</p> <p>Reversible error appears where it is shown that the decision • of the circuit court in a jury waived case was based partly upon assumed facts of which there was no evidence or which were attempted to be shown only by evidence improperly admitted over objection, and the evidence on the main issue was conflicting.</p> <p>Same — exceptions in jury icaived case.</p> <p>Exceptions, in a jury waived case, to an oral decision of the court, and to the overruling of a motion for a new trial which was made before the written decision was filed, present nothing for the consideration of the appellate court.</p>

<p>Prohibition — when writ lies — proceeding without jurisdiction.</p> <p>Prohibition lies to restrain the continuance of a receivership where the order appointing the receiver was beyond the power of the judge to mate, even though the judge has jurisdiction of the subject matter of the suit in which the order was made.</p> <p>Same — remedy 6y appeal.</p> <p>Prohibition does not ordinarily lie where the party may obtain relief by appeal, hut where a void interlocutory order results in the seizure of property, and under the circumstances there is no other adequate relief for the party whose rights have been invaded, a case permitting the use of the writ appears.</p> <p>Same — raising question of jurisdiction in loioer court.</p> <p>The question of jurisdiction should, as a general rule, he raised first in the lower court, hut if the question has once been raised in the case and ruled on adversely, it need not be repeated in immediate connection with the order attacked.</p> <p>Receivebs — ground for appointment — danger of loss or injury.</p> <p>As a basis for the appointment of a receiver the plaintiff must show, not only that he has an interest in or right to the fund or property, but that the possession of the property by the defendant was obtained by fraud; or that the property itself, or the income arising from it, is in danger of loss from the neglect, waste, misconduct or insolvency of the defendant.</p>

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

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

<p>Trusts — investment of trust funds.</p> <p>In this jurisdiction the rule as to the investment of trust funds is that the trustee must act with honesty, prudence and faithfulness, and exercise such sound discretion as prudent business men exercise in the investment of their own moneys, having regard not only to the income, but to the security of the principal, and to the permanency of the investment.</p> <p>Same — investment in second, mortgage.</p> <p>The application of the rule to an investment of trust funds in a second mortgage upon real estate, assuming the existence of the requisite honesty and good faith, would involve the question whether, under all the circumstances, it could be regarded as a sound and prudent business transaction. The two« principal matters to be considered are, (1) the value of the security, and (2) the ability of the trustee to protect the investment in the event of the foreclosure of the senior mortgage.</p> <p>Same — same.</p> <p>Under the special facts of this case the taking of a second mortgage for the purchase price upon the sale of incumbered property held proper.</p>

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

<p>Garnishment- — request for process — summons.</p> <p>A prayer contained in plaintiff’s complaint in an action in a circuit court that the garnishee “be summoned to appear and answer this demand as is by law provided,” is a sufficient request for the issuance of a summons to the garnishee in a form appropriate to the requirements of R. L. 1915, Sec. 2801.</p> <p>Same — garnishee summons — copy—certification.</p> <p>A copy of the original summons served upon a garnishee as required by law, which is certified by a deputy sheriff to be a true copy, need not bear the original signature of the' clerk nor the impress of the seal of the court out of which it issued, if it shows upon its face that the original was signed by the clerk and bore the seal of the court.</p> <p>Same — time for appearance of garnishee — waiver of irregularity.</p> <p>The time specified in the summons for the appearance of the garnishee should be the same as that of the defendant. An irregularity in the designation of the time for appearance will be waived by making a general appearance in the cause.</p> <p>Same — travelling fees and expenses of garnishee.</p> <p>The status of an order for execution entered against a garnishee who has not appeared is not affected by the failure to tender him the amount of his fees and expenses.</p> <p>Same — non-appearance of garnishee — notice of hearing — judgment.</p> <p>Where no action is had or order made in court on the return day, the defendant having previously confessed judgment, the garnishee is entitled to notice of any proceeding subsequently to be had affecting his rights. Before a valid judgment can be entered against a garnishee who has not appeared the plaintiff must show by evidence the value of the property in the garnishee’s hands belonging to the defendant, or the amount of the debt due to the defendant. Where judgment has been obtained against the defendant upon his default or confession, the garnishee may appear and make liis disclosure at any time before judgment has been entered against him.</p>

<p>Appeal and Error — final and interlocutory decrees.</p> <p>An order made in an injunction suit assessing damages on an injunction bond against a surety thereon, directing that if the complainant does not pay such damages to the defendants to whom awarded, or to the attorneys of such defendants, within ten days, then a judgment to be entered in favor of the defendants against such surety, is an interlocutory order, and not a final decree, hence not appealable, although the order directs the surety to pay the sum awarded into court.</p> <p>¡Same — final judgment.</p> <p>For the purposes of appeal an order, judgment or decree which finally determines the rights of the parties as to the controversy, or some material portion thereof, and provides the means for carrying the order, judgment or decree into effect, is final and appealable.</p> <p>;Same — interlocutory order or decree.</p> <p>An order, judgment or decree is not final, but interlocutory, when further action by the court is necessary to determine the final rights of the parties as to the matters affected by such order, judgment or decree, and from such order, judgment or decree an appeal does not lie as matter of right, but only by allowance of the circuit judge hearing the cause.</p>

<p>Error to District Magistrate op Makawao.</p>

<p>Reserved Question from Circuit Judge, First Circuit. ' Hon. T. B. Stuart, Judge.</p>

<p>Error to Circuit Court, Second Circuit. Motion to require attorney to pay costs.</p>

<p>Equity — motion to vacate decree.</p> <p>An appeal does not lie from an order overruling a motion to open a decree in equity.</p>

<p>Counties- — negligence of employees — demurrer.</p> <p>A demurrer to a complaint alleging facts showing an injury to private property 'resulting directly from the negligence of road employees of a county acting within the scope of their employment is properly overruled. Following decisions in Matsunvura v. County of Hawaii, 19 Haw. 18 and 496.</p> <p>Dismissal and Nonsuit — dilatory motion.</p> <p>A motion for nonsuit made after the defendant has introduced evidence in support of his defense comes too late and should he denied on that ground.</p> <p>Damages — contributory negligence.</p> <p>In an action for damages on account of injury to a growing crop of cane caused by a fire negligently started by defendant’s servants on a highway near the plaintiff’s cane-fields the fact that the plaintiff, who had no notice that the fire was to be started, had permitted dead grass and dry leaves to remain on the space between such highway and cane-fields would not permit a finding by the jury of contributory negligence on the part of the plaintiff. The requested instruction submitting the question of contributory negligence was properly refused.</p>

<p>Appeal prom District Magistrate oe Wailuku. ■</p>

<p>Appeal by tax payer from tax appeal court, third taxation division.</p>

<p>Reserved Questions erom Circuit Court, Eirst Circuit. Hon. T. B. Stuart, Judge.</p>

<p>Error to Circuit Court, Second Circuit. Hon. W. S. Edings, Judge.</p>

<p>Exceptions from Circuit Court, First Circuit. Hon. C. W. Ashford, Judge.</p>