Volume 23 — Hawaii Reports

<p>Statutes — Sec. 2032 R. L. 1915 — construction—ejusdem generis.</p> <p>The rule of ejusdem generis is applicable in the construction of Section 2032, R. L. 1915, and held, that the words “other food products” are limited to food products of like kind with those expressly mentioned in the statute, and do not include manufactured raw sugar.</p>

<p>Appeal prom Circuit Judge, First Circuit.</p> <p>Hon. C. W.. Ashford, Judge. .</p>

<p>Motion for Summary Judgment.</p>

<p>Reseeved Questions from Circuit Court, First Circuit.</p> <p>Hon. W. L. Whitney, Judge.</p>

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

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

<p>Reserved Questions prom Circuit Court, First Circuit.</p> <p>Hon. T. B. Stuart, Judge.</p>

<p>Taxation — enterprise for profit — net profits — depreciation.</p> <p>In ascertaining the net profits of an enterprise for profit under R. L. 1915, Sec. 1241, moneys laid out in necessary improvements, as well as the bare running expenses, are to be deducted, but a further sum for estimated depreciation of plant is not deductible.</p> <p>Same — factors to be considered,.</p> <p>The earning power of an enterprise for profit is a potent factor, but not the only factor, to be considered in assessing an enterprise for profit. The value of the separate items of property making up the whole is to be taken into consideration.</p>

<p>Records — decree of land court — construction—description of land.</p> <p>A surveyed description of land contained in a decree of the land court, if it requires construction, is subject to the same rules of construction as a description contained in an instrument inter partes.</p> <p>Boundaries — questions of law and of fact.</p> <p>What is the boundary between certain lands is a question of law, but the location of that boundary upon the ground is a matter of fact.</p> <p>Same — construction of description.</p> <p>The general rule that course and distance will yield to known. visible and definite objects whether natural or artificial will be applied when the description explicitly states that the object is the boundary.</p> <p>Same — meander lines.</p> <p>Where a decree of the land court determined the boundary of land to be the bank of an auwai, the bank- must be regarded as the true boundary, and not the meander points or lines which describe the sinuosities of the auwai.</p> <p>Appeal and Error — appeal from decree of land court.</p> <p>Under Sec. 3145, R. L. 1915, an appeal from a decree of the land court may be taken to the supreme court upon points of law only.</p>

<p>Taxation — property on military reservation.</p> <p>Property on a United States military reservation owned by individuals is subject to taxation by tbe Territory.</p>

<p>Appeal and Error — dismissal of writ.</p> <p>In. an action for summary possession, where defendants bring error to review the judgment ■ of a circuit court in plaintiff’s favor, the writ will be dismissed on motion where it is made to appear that tbe judgment and execution thereon have been fully satisfied before the suing out of the writ.</p> <p>Landlord and Tenant — summary possession — execution.</p> <p>Judgment in plaintiff’s favor having been entered by a circuit court in an action for summary possession execution thereunder, namely, a- writ of possession, may issue at any time thereafter unless stayed as provided by law.</p> <p>Same — same—jurisdiction.</p> <p>In this case held, that a plea to the jurisdiction of the court which purports to, but does not in fact, allege that the title to real estate is involved, was properly overruled.</p>

<p>Appeal and Error — exceptions—order granting new trial.</p> <p>For the purpose of exceptions an order granting a new trial is regarded as a final order.</p> <p>Same — statement of case — briefs.</p> <p>A summary of the evidence contained in the appellant’s brief which is not controverted by the appellee may be adopted by the court as being a fair statement of the case.</p> <p>New Trial — verdict—sufficiency of evidence.</p> <p>A circuit judge should not grant a new trial on the ground merely that a verdict for the defendant was against the weight of the evidence where it cannot he said that there was no substantial evidence to support it.</p> <p>Master and Servant — negligence—omission of precautions to prevent accident.</p> <p>The true question for the jury is not whether the master could have done something to prevent an injury to his servant, but whether he omitted any precaution which a prudent and careful man would or ought to have taken.</p> <p>Negligence — primarily question for jury.</p> <p>The question of negligence is primarily one for the jury under proper instructions, and becomes a matter of law for the court only where there is no conflict in the evidence and but one inference can reasonably.be drawn from the facts.</p> <p>Trial — verdict—instructions.</p> <p>A verdict cannot be said to be contrary to law because the jury supposedly overlooked certain instructions in a case where varying instructions were given to meet the facts as the jury might find them. It will be assumed that the jury found the facts to have been as contended for by the successful party.</p>

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

<p>Appeal prom Tax Appeal Court, First Circuit.</p>

<p>Counties — liability for torts — defective highway.</p> <p>A county in Hawaii is liable in damages for nonfeasance in failing to repair a defect in a public highway or to guard against injury therefrom resulting in personal injury to one lawfully traveling on the highway.</p>

<p>Appeal and Error — reserved questions.</p> <p>A question may be reserved by a circuit court of its own motion, notwithstanding a motion for a reservation has been interposed by one of the parties, the court not having ruled on the question.</p> <p>Criminal Law — accessory after the fact — brother of felon.</p> <p>A brother of one convicted of the crime of burglary in the seeond degree, which is punishable by imprisonment at hard labor for a term of not more than ten years, is not punishable as an accessory after the fact to that offense under Sec. 3675, R. L. 1915.</p>

<p>Parent and Child — liability of adoptive father for support of abandoned child.</p> <p>An adoptive father who has abandoned his child may be held liable upon an implied contract to one who has furnished the child with necessary support, for the value thereof not in excess of what is reasonable considering the child’s station in life.</p> <p>Executors and Administrators — statute of non-claim — waiver.</p> <p>The statute of non-claim constitutes a special regulation of probate law; it cannot be waived; and need not be specially pleaded.</p> <p>Appeal and Error — necessity of raising question in trial court — exception to -rule.</p> <p>In a jury-waived case against an administratrix, under a general exception to the decision, the defendant may raise for the first time in the supreme court a point that she could not have waived, namely, that the plaintiff had failed to prove that the claim sued on had been rejected and action thereon commenced within two months as required by statute.</p>

<p>Error to Circuit Court, Fourth Circuit.</p> <p>Hon. C. F. Parsons, Judge.</p>

<p>Words and Phrases — “unlawfully.”</p> <p>The words “unlawful” and "unlawfully” are commonly used as meaning “without authority of law” or “not permitted by law.”</p> <p>Criminal Law — explosives-—injury to property.</p> <p>In a prosecution under section 4028, R. L. 1916, charging the unlawful use of dynamite with intent to injure or destroy property, it is not necessary to allege or prove that the property was actually injured.</p> <p>Same — evidence—specific intent.</p> <p>The burden is on the prosecution to prove that an act charged to have been done with a specific intent was done with that intent. But it is sufficient in such cases to prove facts from which such intent may be inferred.</p> <p>Statutes — penal laws — construction—intention.</p> <p>The mere fact that the language used in a penal statute is open to two constructions, one of which would include the acts charged and the other not, does not require that the latter view must necessarily prevail, and the former view will be adopted if the court is well satisfied that such was the sufficiently expressed intention of the legislature.</p> <p>Appeal and Error — objections to evidence — exceptions.</p> <p>An exception to the admission of evidence, to be available in an appellate court, should point out the particular part of the evidence which was objected to. If any of the evidence was admissible, a general objection is not sufficient.</p> <p>Trial — instructions—motive.</p> <p>Evidence of motive, or lack of motive, being a matter properly to be considered by the jury in a criminal case, an appropriately framed instruction on the point, if requested, should be given. The instruction requested in this ease was properly refused because incomplete and misleading.</p> <p>Same — extra judicial statements — restriction of relevant evidence.</p> <p>The operation of evidence of an extra judicial statement relevant on the question of motive will not be limited by an instruction where the evidence went in generally and without objection.</p>

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

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

<p>Error to Circuit Court, First Circuit.</p> <p>Hon. T. B. Stuart, Judge.</p>

<p>Limitation oe Actions — statute and exceptions — contract stipulation.</p> <p>Where parties by contract stipulate that no action shall be commenced upon the contract unless commenced within a certain time, the time being reasonable for the purpose, such stipulation becomes a condition of the contract, is binding on the parties, and neither the statute of limitations nor the exceptions thereto apply.</p> <p>Same — pleading ly demurrer — insurance.</p> <p>Where it appears upon the face of the complaint in an action upon an insurance policy that the parties stipulated in the policy that the defendant, the insurer, should not be liable in an action thereon unless the same was commenced within one year from the date of the death of "the insured, and the insured had been dead more than one year before the action was commenced, a demurrer to the complaint upon the ground that the action was not commenced within the stipulated time is proper and should be sustained.</p> <p>Pleading — demurrer—waiver.</p> <p>Where defendant demurs to plaintiff’s complaint on the ground that it appears therefrom that the plaintiff’s cause of action is barred by contract of the parties and the trial court and the parties treat such demurrer as properly raising the question, the plaintiff, after the demurrer is sustained, should not, on appeal, for the first time, be permitted to question the right of the defendant to raise, the question by demurrer but should be held to have waived the question of procedure.</p>

<p>Deeds — conveyance of land under lease■ — severance of rent from, reversion.</p> <p>A deed conveying land, which is under lease, to certain grantees but containing a, clause providing that the rents shall go to the children of the grantor, held not to create a trust, but a conveyance of the fee to the grantees and a grant of the rents accruing under the lease to the grantor’s children. A corresponding construction placed upon another deed executed at the same time conveying other land under lease to the same grantees for life, remainder to their children and the children of the grantor, and providing for the division of the revenues between the life tenants and the grantor’s children.</p>

<p>Appeal and Error — certificate of appeal — points of law.</p> <p>On appeal from a judgment of a district magistrate to this court the points of law upon which the appeal is taken must be stated in the district magistrate’s certificate of appeal and if not so stated the appeal must be dismissed.</p>

<p>CONSTITUTIONAL Law — deductions from wages of laborers.</p> <p>Sections 3446, 3447 and 3448, R. L., which, make it a misdemeanor for an employer to retain or deduct any part or portion of the wages of a laborer in his employ without the written consent of such laborer; or, to collect any fine, store account, offset or counterclaim out of such wages unless by action in court and judgment therefor first obtained, do not impair the obligation of contracts, do not deprive persons of property without due process of law, do not provide for imprisonment for debt, do not deny the equal protection of the laws, and are not unconstitutional on any of said grounds.</p>

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

<p>Costs — where government officer a party.</p> <p>Where one of two parties against whom a final decree is entered is a public officer and, therefore, not liable for costs, and the other party is a contractor who was acting for his own profit, and who defended against the suit on the same general grounds as the officer, but under his own pleadings, through his own counsel and in his own right, held that all recoverable costs should be taxed against the latter.</p> <p>Same — in equity cases — on appeal.</p> <p>The rule that costs in suits in equity are in the discretion of the court applies only to costs in the trial court. The costs on appeal of such cases go to the party who prevails in the supreme court under R. L. 1915, Sec. 2548.</p> <p>Same — taxable disbursem.ents.</p> <p>Held, that the cost of photographs of the locus in quo', of a transcript of the testimony; of typing the record on appeal; and. the amount of the premium on an injunction bond, were taxable as reasonable disbursements in this case. The cost of a duplicate transcript held not taxable as a disbursement or allowable as a counterclaim.</p> <p>Same — expert witness fees.</p> <p>Compensation paid by a party to an expert witness is not recoverable as a taxable disbursement.</p>

<p>Equity — pleading—demurrer.</p> <p>A bill in equity to restrain the defendant from selling or otherwise disposing of his property unless he satisfies or secures the payment of an unsecured promissory note given by him, which note has not matured, wherein' it is alleged that the defendant is absent from the Territory, a fugitive from justice, does not intend to return to the Territory, and is selling and disposing of his property in the Territory to evade payment of such note and to defraud the payee and other creditors, does not state facts sufficient to entitle the plaintiff to the relief sought, and a demurrer on that ground should be sustained.</p> <p>Same — fraud—creditor’s Mil — discovery.</p> <p>A court of equity will not entertain a creditor’s bill which seeks relief from a fraudulent conveyance, made or contemplated, and a discovery of assets of the debtor in the hands of others, in advance of the maturity of the creditor’s demand, especially where the creditor has no lien on the property conveyed or about to be conveyed. The maturity of the creditor’s claim in such case is a condition precedent to the granting of such relief.</p>

<p>Trusts — gifts by implication — accumulations—resulting trusts — wills.</p> <p>A testator devised and bequeathed all his property to a trustee upon trust to pay the income thereof to his wife during the term of her natural life, and from and after her death to apply so much of the income as may be necessary for the maintenance and education of his daughter until she should attain the age of twenty-oné years, also to pay to his sister-in-law the sum of $500 per annum; and if the daughter should die leaving lawful issue to pay and deliver over to such issue, if of age, the whole of the property, and if not of age, to continue to hold it, using the income therefrom for their maintenance until they should become of age, and then to deliver over the property to the issue; and after the death of the wife, sister-in-law, and daughter (if without issue), to convert the estate into money and divide the same as directed in the will. Held, that the testator did not give the income to the daughter during her life after reaching the age of twenty-one (his wife and sister-in-law having died) by implication; that he did not intend that the income should accumulate; but that there was a resulting trust as to such income, as an undisposed of beneficial interest, in favor of the daughter as sole heir.</p>

<p>Specific Performance — suit against executor — 'parties.</p> <p>Under Chap. 15.9, R. L., where a testator, during bis lifetime, sold to plaintiff certain real estate and received the full purchase price thereof and executed a written agreement wherein he promised to make, execute and deliver to the plaintiff a deed for such real estate, but died before doing so, a suit may be maintained for specific performance of such written contract against the executor of testator’s estate without joining the heirs or devisees of the testator.</p>

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

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

<p>Petition for Reinstatement.</p>

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

<p>Error to Circuit Court, Fourth Circuit.</p> <p>Hon. C. F. Parsons, Judge.</p>

<p>Adoption — effect of not recording agreement — guardianship.</p> <p>An agreement of adoption which was executed before but not recorded until after a guardian had been appointed for the child, held, under R. L. 1915, Sec. 3119, to be ineffective as against the guardian’s right to the custody of the child.</p>

<p>Motions for Allowance of Attorneys’ Fees.</p>

<p>Criminal Law — warrant of arrest, — jurisdiction of person.</p> <p>A warrant of arrest in a criminal case is tbe writ or process by tbe service of wbicb upon tbe accused tbe court acquires jurisdiction of bis person. But tbe issuance of a warrant, or tbe service of a valid warrant, may be waived and jurisdiction of tbe person conferred by a general appearance and plea to the charge.</p> <p>Indictment and Information- — verification of information — constitutional law.</p> <p>Tbe Fourth Amendment does not require that an information be verified or supported by affidavit except as it is used as tbe basis for the issuance of a warrant. As a charge or accusation, in tbe absence of statute, an information may be presented and filed by a public prosecuting officer upon bis official oath.</p>

<p>Appeal and Error — equity 'procedure — dismissal.</p> <p>It Is reversible error for a circuit judge, sitting in equity, to dismiss plaintiffs bill during tbe cross-examination of a witness for tbe defendant, thereby preventing further cross-examination of such witness, thereby taking from the defendant the opportunity of offering further evidence and thereby denying to the plaintiff the opportunity. of offering evidence in rebuttal.. .</p> <p>Evidence — document not offered — appeal and error.</p> <p>It is prejudicial error to consider as evidence an entry in a book shown by defendant to a witness for plaintiff on cross-examination, the authenticity of which is disputed, where such book is not identified and introduced in evidence.</p>

<p>Landlord and Tenant — liability of subtenant to the landlord.</p> <p>A subtenant is not liable upon a covenant to pay rent contained in the contract of lease between the landlord and the tenant under whom the subleasing exists; but where the subtenant enters with the assent of the landlord under an agreement, express or implied, to pay rent to the landlord, an action for use and occupation is maintainable by the landlord against the subtenant.</p> <p>Assumpsit — pleading—misjoinder of defendants.</p> <p>In an action of assumpsit against several defendants a defendant against whom a cause of action is stated cannot demur on the ground that the declaration shows no cause of action against another defendant.</p>

<p>Prohibition — equity—jurisdiction.</p> <p>Where a bill in equity shows that the controversy between the parties is such as a court of equity may properly take cognizance of, prohibition does not lie to restrain the proceeding because the bill shows that the complainants have an adequate remedy at law, or is demurrable on some other ground which does not go to the jurisdiction of equity over the subject matter.</p> <p>Contempt — order to show cause — sufficiency of form.</p> <p>In a case of constructive contempt of court, where a proper showing has been made for the issuance of an order to show cause why the alleged contemnor should not be punished, the order is sufficient in form if it states in a general way the nature of the charge made against the party.</p>

<p>Equity — application of maxims — “he who comes into equity must come with clean hands.”</p> <p>Tbe equitable maxim that “he who comes into equity must come with clean hands” has no application in a case where the relief sought is entirely proper and legal and in no way dependent upon the complainant’s previous wrongful (criminal) act.</p> <p>Trusts — evidence—weight and sufficiency.</p> <p>A constructive trust must be established by evidence which is clear, definite, unequivocal and satisfactory. Decree herein reversed on the evidence.</p>

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

<p>Statutes — Workmen’s Compensation Act — construction.</p> <p>One purpose of the Workmen’s Compensation Act is to provide compensation to a workman for injuries received while working in the business of the owner or operator thereof, from such owner or operator, regardless of questions of negligence, whether the injured workman is employed directly by the owner or operator of the business, or indirectly through a contractor, and the act must be broadly and liberally construed in order to effectuate such purpose.</p> <p>Same — same—same.</p> <p>A sugar company let a contract to H to build a road-bed on its plantation to be used in its business, furnishing H with camps, tools and appliances, the work to be to the satisfaction of the company’s engineer; the claimant, a workman employed by H who alone had the right to discharge him, was injured while working on the road-bed and filed with the industrial accident board his claim for compensation against the company and H; the question of the liability of the company was reserved to this court: Held, that the company is liable, it being an employer of claimant within the language and intent of the act.</p>

<p>Landlord and Tenant — covenant for renewal — exercise of option hy lessee.</p> <p>A covenant to renew a lease gives the lessee an option which ordinarily he must act upon by giving notice of his intent to .renew at or before the end of the term demised. But time is not of the essence of the agreement, unless made so, and the notice being for the benefit of the lessor may be waived by him.</p> <p>Specific Performance — covenant to renew lease.</p> <p>Equity will decree the specific performance of a covenant to renew a lease where the lessee, within a reasonable time after the expiration of the lease in exercise of the option pays, and the lessor accepts and retains, the rent for the first period upon a new term.</p> <p>Same — parties—decree.</p> <p>Persons who, after the making of a contract to convey or lease land, acquire an interest in the land from the vendor or lessor are necessary parties to a bill for the specific performance of the contract. In the absence of a necessary party, the appellate court, if it cannot make a decree which will finally dispose of the controversy, may remand the cause for the purpose of bringing him in.</p>

<p>Submission Without Action.</p>

<p>ERROR to Circuit Court, First Circuit.</p> <p>Hon. T. B. Stuart, Judge.</p>

<p>Trusts — costs—trustees’ commissions — principal—income.</p> <p>Under R. L. 1915, Sec. 2542, the commissions of trustees wbicb are chargeable on principal should be paid out of the principal and those chargeable on income should be paid out of the income.</p>

<p>Wills — vested, remainder — defeasance—condition impossible of performance.</p> <p>Where by a last will and testament a remainder in fee is vested in a devisee subject to defeasance by a condition subsequent and prior to tbe performance of tbe condition sucb condition becomes impossible of performance, tbe vested remainder becomes absolute in tbe devisee and no longer subject to tbe defeasance provided for in tbe will.</p>

<p>Reserved Question prom Circuit Court, First Circuit.</p> <p>Hon. C. W. Ashford, Judge.</p>

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

<p>Appeal fkom Circuit Judge, First Circuit.</p> <p>Hon. C. W. Ashford, Judge.</p>

<p>Malicious Prosecution — essential elements — pleading.</p> <p>A complaint which, alleges that a criminal proceeding was instituted against the plaintiff by the defendant; that it was done without probable cause and with malice on the part of the defendant; that the proceeding terminated in favor of the plaintiff; and that the plaintiff sustained damage, states a case of malicious prosecution.</p> <p>Same — termination of original proceeding — nolle prosequi.</p> <p>A nolle prosequi, when not entered at the instance or with the consent of the defendant, is a sufficient termination of the proceeding upon which to found a claim for damages for malicious prosecution.</p> <p>Same — liability of prosecuting officers.</p> <p>A public prosecuting officer is not to be held liable in damages for an honest mistake or mere error of judgment in instituting criminal proceedings; but if he proceeds maliciously and without probable cause, he will render himself liable in damages to the party injured.</p>

<p>Judgments — default—reasons for opening — discretion.'</p> <p>The statute, R. L. 1915, Sec. 2363, authorizing the opening of defaults, should be liberally applied by the courts. On appeal the question is whether the trial court abused its discretion. Good and sufficient reasons for opening a default will not be shown to exist unless it be made to appear that the defendant moved with diligence after the default was entered, that he has a meritorious defense, and that he has a reasonable and satisfactory excuse for not having answered..</p> <p>Same — setting aside judgment after default.</p> <p>Where a final judgment has been entered in a case after an order of default the application should be to set aside the judgment as well as to open the default.</p>

<p>Appeal and Error — Mil of exceptions — extension of time.</p> <p>While an order extending the time in which to present a hill of exceptions indefinitely would he void, yet an order made within the time in which the hill of exceptions might have been presented, extending the time for presenting the bill of" exceptions twenty days after typewriting and filing transcript of the evidence ~by the official court stenographer with the clerk of the court, is not void for uncertainty; reference in the order to the filing of the transcript of the evidence made the time of extension certain, fixed and definite.</p>

<p>ERROR to Circuit Judge, Fourth Circuit.</p> <p>Hon. C. F. Parsons, Judge.</p>

<p>Appeal FROM Circuit Judge, Second Circuit.</p> <p>Hon. W. S. Edings, Judge.</p>

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

<p>Appeal and Ebror — criminal procedure — remanding cause for further proceedings.</p> <p>When the trial court sustains a demurrer to a criminal charge, discharging the defendant from custody, and on writ of error the order sustaining the demurrer is reversed, the cause will he remanded to the trial court for further proceedings.</p>

<p>Beneficial Associations — validity of declaration■ — change in by-laws.</p> <p>A declaration designating the beneficiaries of a death benefit which was valid under the by-laws in force at the time it was made and valid also under those in force when the declarant died, will take effect according to its terms, unaffected by changes which occurred in the interim.</p> <p>Same — death benefits — by-laws construed.</p> <p>The by-laws of a mutual benefit society provided that upon the death of the wife of a member he should be paid a benefit through an assessment of twenty-five cents levied upon each married member of the society. Upon the death of the wife of a member he was paid such a benefit amounting to $262.25. Subsequently, by amendments to the by-laws the system was changed, and it was then provided that upon the death of the wife of a member he would be paid a benefit in the fixed sum of $400; it was provided also that upon the death of a member his beneficiaries would be paid a benefit in the sum of $1500 if he “shall not have at any time received a death benefit by reason of the death of his wife,” and that if he “shall have at some time received a benefit upon the death of his wife” the sum payable to his beneficiaries would be $1100. Held, that upon the death of the member who had received the benefit of $262.25, upon the death of his wife, his beneficiaries were entitled to demand from the society only the sum of $1100.</p>

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

<p>Lotteries — slot machine- — -criminal law.</p> <p>Defendant conducted a slot machine whereby each nickel played into it brought to the player a package of gum, and, at irregular and uncertain times, dropped into a cup for the player trade checks redeemable in merchandise at five cents each, and in multiples of two, the maximum number of trade checks which might be received being twenty; the machine is so arranged that each operation shows just what the succeeding one will distribute; by a series of operations the player may or may not receive trade checks exceeding in value the amount of money which he deposits: Held, that the distribution of merchandise other than the gum involves the element of chance and is a lottery within the meaning of Secs. 4169, 4170, R. L.</p>

<p>Appeal aNd Error — probate—decree of distribution.</p> <p>Por tbe purpose of appeal a decree of distribution is regarded as a final decree.</p> <p>Divorce — judgment—collateral attack,.</p> <p>A decree of divorce rendered by a court having jurisdiction of the subject matter and of the parties cannot be collaterally attacked for errors or irregularities; that lihellee'is not notified of the time of the second trial, the original decree having been vacated, is not such a jurisdictional defect as will render the second decree void.</p> <p>Same. — same—effect of vacating.</p> <p>Where a decree in a suit for divorce is vacated because thirty days had not elapsed after the completion of service of summons on the lihellee, it is proper for the court to treat the suit as still pending and retry the same, after the expiration of the thirty days limited by statute, upon the evidence then adduced.</p>

<p>Appeal and Error — what constitutes -final order.</p> <p>What constitutes a final decision or order for tbe purpose of appeal depends rather upon the nature and effect of the decision than on the stage at which it is rendered. An order determining that a respondent in a suit in equity alleged to be of weak mind and under the undue influence and domination of another may appear, and would be recognized, only through a guardian ad litem appointed by the court, the alleged weakness of mind and undue influence being controverted, is a final and appealable order.</p> <p>Same — review of interlocutory rulings.</p> <p>An appeal from a final order in a suit in equity brings up for review all interlocutory rulings which affected the appellant, but not those which affected only a co-party who has not appealed, and which did not enter into the order appealed from.</p> <p>Insane Persons — persons under undue influence — appointment of next friend or guardian ad litem.</p> <p>A next friend or guardian ad litem may be appointed for a person who, though not insane, is alleged to he weak minded and, because of the undue influence and domination of another, is not a free agent. But where an issue is raised by the party’s denial of such weak mindedness and undue influence, that issue must be heard and determined in limine and before further steps are taken in the suit.</p> <p>Equity — pleading—interest of complainant in subject matter.</p> <p>A bill in equity is demurrable which does not show that the complainant has an interest in the subject matter of the suit. The next of kin of a living person has no estate or interest at law or in equity in the property of that person. Nemo est haeres viventis.</p>

<p>Criminal Law — usury.</p> <p>The offense prohibited by Sec. 3444 R. L. is committed by receiving interest in excess of the rate of two per cent, per month, and not by entering into a contract whereby the defendant is to receive interest at a rate greater than two per cent, per month.</p> <p>Instkuctions — eliminating questions of fact.</p> <p>An instruction in a prosecution for receiving usury, which makes the guilt of the defendant to depend upon the value of a note and securities taken by the defendant to secure the loan, and which eliminates from the consideration of the jury the question of fact as to whether or not the defendant actually received interest at a rate greater than that permissible under the statute, constitutes reversible error.</p> <p>Criminal Law — principal—accessory before the fact.</p> <p>Under Sec. 3674 R. L., and Sec. 3807B, added to the Revised Laws by Act 215 S. L. 1915, one who aids in the commission of an offense or is an accessory before the fact may he charged and punished as a principal and in the same manner and to the same effect.</p> <p>Evidence — prosecution for receiving usury.</p> <p>In a prosecution for receiving interest at a rate greater than two per cent, per month, where a note, hill of sale and an order were given to secure the loan, it is proper to admit in evidence such written instruments, and other pertinent evidence, for the purpose of showing the transaction between the parties.</p> <p>Same — same—application of payment.</p> <p>It is proper to admit evidence of payments to the defendant and the application of such payments when the defendant is tried upon the charge of receiving interest at a rate greater than two per cent, per month.</p> <p>Criminal Law — usury—securities for loan.</p> <p>When money is loaned at a rate of interest greater than two per cent, per month the offense punishable under Sec. 3444 R. L. is not committed merely by taking securities for the loan; the acceptance of security for the loan is not the receiving of interest, discount or consideration upon the loan within the meaning of the statute.</p>

<p>Constitutional Law — municipal corporations — taxation by special assessment.</p> <p>A statute providing that the cost of a highway improvement shall be assessed against the lands benefited by the improvement cannot be said to provide .for or constitute a taking of private property for public use without just compensation or without due process of law because it does not' expressly provide that the amount of an assessment shall not substantially exceed the special benefit conferred. Much latitude must be left to the legislature in determining the method of assessment, and a statute can be successfully called in question only when it is so devoid of any reasonable basis as to constitute an arbitrary abuse of power.</p> <p>Municipal Corporations — indebtedness—bonds payable only out of special fund.</p> <p>The issuance of bonds payable only out of a specific fund raised by a special tax for a public improvement does not constitute municipal indebtedness within the meaning of fundamental limitations upon such indebtedness. That a contingent future liability on the part of the municipality may exist in connection with such issuance does not alter the rule.</p> <p>Same — proceedings under improvement statutes — special assessments.</p> <p>Where a statute authorizes highway improvements to be made at the cost of property specially benefited upon assessments levied according to area or frontage, one improvement district may include a combination of improvements, and the assessment as to some be made according to area and as to others according to frontage.</p> <p>Same — public contracts — time limit for execution of contract.</p> <p>The provision of R. L. 1915, Sec. 1798, that no bid for a contract for a highway improvement shall be considered unless accompanied by a certified check payable to the city and county, which check shall be forfeited unless the bidder shall sign the contract and furnish an approved bond within ten days after the contract is awarded, held to be a provision for the benefit of the municipality which does not prohibit the signing of the contract and furnishing the bond after the expiration of ten days, or prevent the board of supervisors from reasonably extending the time for so doing.</p>

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

<p>Damages — pain and suffering endured pendente lite — evidence.</p> <p>Where the plaintiff sues upon only one cause of action to recover damages for a personal injury received by reason of the defendant’s negligence he may recover for pain and suffering endured by him after the action was commenced if the evidence shows that such pain and suffering were caused by the defendant’s alleged negligence.</p> <p>Same — medical services — evidence.</p> <p>In an action to recover damages sustained by reason of the defendant’s negligence the plaintiff to recover for expenses incurred for medical services must show that such services were necessary and the charges therefor reasonable.</p> <p>Same — Workmen’s Compensation Act — negligence of third party.</p> <p>Where an employee is injured by reason of the negligence of a third party he may under the Workmen’s Compensation Act bring an action against such third party to recover damages caused by such negligence.</p> <p>Cóunties — costs.</p> <p>In an action against the county for personal injuries received by reason of a defective condition of a public highway the plaintiff cannot recover from the county expenses incurred in procuring evidence as section 2543 R. L. exempts counties from payment of costs.</p> <p>Exceptions — new trial — remitting portion of judgment.</p> <p>Where on exceptions to this court it appears from the record that the trial court improperly admitted evidence of items of expense incurred in certain particulars which probably were included in the judgment, no other error appearing, the appellate court will overrule the exceptions upon the condition that plaintiff within a given time remit that portion of the damages apparently recovered by reason of such erroneous evidence, and order that upon plaintiff’s failure to remit such items of damage a new trial be granted the defendant.</p>

<p>Equity — cancelation of instrument.</p> <p>In a suit In equity to obtain judgment canceling a deed It was alleged that the consideration moving to the plaintiff was defendant’s promise to “sufficiently and comfortably support her during her natural life,” and that defendant had failed and refused so to do; the evidence showed that defendant and his family had lived on the premises conveyed with the plaintiff for nearly four years after the execution of the deed, during which time defendant had furnished plaintiff with clothing and had furnished the food used; plaintiff occasionally complained that she did not get a sufficient amount of poi, but never so complained to the defendant; plaintiff finally left the premises without the knowledge or consent of the defendant, who wrote her asking her to return and testified that he had at all times supported, and has at all times been ready and .willing- and able to sufficiently and comfortably support, plaintiff in - accord with her rank and station in life, pursuant to his promise so to do; held, that the plaintiff’s suit is without equity and the judgment in her favor reversed with instructions to dismiss plaintiff’s bill.</p>

<p>Wills — mortgage l>y remainderman — termination of mortgagor’s estate.</p> <p>B., by will, devised bis real estate to bis wife for life, and after ber death certain portions to bis son W. K. B.; tbe will provided that if any devisee should die before tbe testator’s wife died tbe share which otherwise would have fallen to such devisee should go to his heirs; W. K. B. mortgaged the property so devised to him, after which he died prior to the death of the widow of testator, leaving children surviving him who are admitted to be his heirs: Held, that whatever estate W. K. B. took under the will terminated with his death and that his surviving children, as heirs, took free from any lien of such mortgage.'</p>

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

<p>Motion to Dismiss.</p>

<p>Ejectment — estoppel.</p> <p>In ejectment by the second assignee of a lease the plaintiff Is estopped by the oral promise of his assignor to the lessor, in consideration of the latter’s necessary consent to the assignment, to take only a part of the leased premises, where, pursuant to such promise the consent was given and the part relinquished leased to the defendant.</p> <p>Estoppel — landlord and tenant — parol agreement.</p> <p>W desired to procure the assignment of a lease; the written consent of the lessors was necessary to the assignment; W agreed with the lessors in advance that if they would consent to the assignment he would take the leased premises less a certain portion; the lessors consented in writing and the lease was assigned to W; the boundaries were changed so as to exclude the portion agreed to be relinquished, and lessors leased such portion to the defendant; W assigned, with the written consent of the lessors, the lease assigned to him by B, to the plaintiff; the defendant, prior to commencement of action in ejectment by plaintiff, had fenced the portion which W agreed to relinquish. Held; W’s promise estopped him from claiming the land in controversy, and that plaintiff is in no better position than was his assignor.</p> <p>Evidence — 'proving matter in estoppel l>y parol.</p> <p>Parol evidence is admissible to establish acts and declarations made by a party under such circumstances as will in equity estop him from denying such acts and declarations.</p>

<p>Statutes — construction—repeal of special provision.</p> <p>Where a statute prescribes a special rule applicable to a certain class and there is another statute which prescribes a general rule applicable to all but the excepted class the repeal of the special statute will render the general statute applicable to the class formerly excepted.</p> <p>Same — application of new remedy for enforcement of pre-existing right.</p> <p>A statute relating to procedure and giving a new and additional remedy may be applied to the enforcement of the obligation of a contract which was entered into prior to the enactment of the statute.</p> <p>Officers — official bonds — clerks of circuit courts.</p> <p>After the repeal of section 60, Chap. 57, S. L. 1892, circuit judges were authorized to require the clerks of their respective courts to give bonds for the faithful performance of their duties under the act of October 4, 1894 (R. L. 1915, Sec. 150) and upon breach of condition thereof the obligation could be enforced by the summary procedure authorized by section 149, R. L. 1915.</p>

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

<p>Appeal and Error — appeal from equity decree.</p> <p>The proceeding in the supreme court' upon an appeal from a decision of a circuit judge sitting in equity is not a hearing de novo, but a review of the decree and of the ■ issues determined thereby.</p> <p>Abatement and Revival — suit by taxpayer — death of appellee.</p> <p>A suit by a resident taxpayer to restrain the illegal expenditure of public money will not be dismissed because of the death of the complainant after a decree has been entered in his favor and after the time for the filing of his brief in the supreme court on' an appeal by the respondents has expired but the appeal will be decided nunc pro tunc as of a day prior to the death of the appellee.</p>

<p>Judges — disqualification—pecuniary benefit.</p> <p>Where a majority of the justices of the supreme court acting under a power of appointment contained in a will, the justices receiving no reward or pecuniary benefit, fill a vacancy among the trustees under such will, they are not thereby disqualified from sitting in a case on appeal involving the validity of the appointment.</p> <p>Wills — construction—appointment of trustees.</p> <p>The will of B named five trustees to execute a certain trust therein created, provided that the number of trustees should be kept at five, and provided that vacancies among the trustees should be "filled by the choice of a majority of the justices of the supreme court;” at the time the will took effect the justices, severally, exercised original jurisdiction in equity subject to appeal to the supreme court in banco; later all original jurisdiction in equity was transferred to circuit judges sitting at chambers in equity. Held, in construing the will, that it was the intention of the testatrix to vest the power of filling vacancies in the justices, as individuals, and not in the court which should exercise original jurisdiction in matters of the trust, and, consequently, that the transfer of sole original jurisdiction to circuit judges at chambers in equity did not transfer from the justices of the supreme court to the circuit judge the power of filling vacancies among the trustees under the will.</p> <p>Same — same—words and phrases.</p> <p>Where an instrument creating a trust named trustees, fixed the number of trustees and provided that vacancies among the trustees “should be filled by the choice of the majority of the justices of the supreme court,” the word “choice” therein is synonymous with and means “appoint,” and an appointment so made is not subject to confirmation or rejection by the circuit judge exercising original jurisdiction in matters relating to the trust.</p> <p>Trusts — appointment of trustee — judicial junction.</p> <p>"While a grantor of a trust cannot delegate a judicial function to any court, such function being created by law, the naked power of appointing in succession the trustees of a trust is not a judicial function but a power which may be delegated by the grantor.</p>

<p>Exemptions — truckman,</p> <p>PlaintiS, a married woman, owned an auto-truck with which she did the business of a truckman on her own separate account;' she did not drive the truck but her husband drove it for her, and by its use she actually earned a living: Held, that plaintiff is a truckman within the meaning of section 2470 R. L., and that the truck is exempt from attachment or execution.</p> <p>Same — claim of exemptions.</p> <p>It is not necessary for an attachment or execution defendant to make a claim of exemption as to property specifically exempt from seizure and sale under attachment and other process where the exemption statutes • do not provide for the making of such claim but do make the officer seizing the same liable to an action for damages for such seizure.</p> <p>Husband and Wife — statutory construction — exemptions.</p> <p>Section 2959 R. L. does not amend or repeal any of the provisions in the statutes exempting specific personal property from seizure under attachment or execution, and where the certificate therein provided has not been filed with the treasurer, property of the wife, engaged in business on her own account, which is specifically exempt from seizure under attachment or execution, is not subject to attachment for the debt of her husband.</p>

<p>Exceptions prom Circuit Court, Fourth Circuit.</p> <p>Hon. C. F. Parsons, Judge.</p>

<p>Appeal prom Water Commissioner.</p> <p>Hon. C. F. Parsons, Commissioner.</p>

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

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

<p>Indictment and' INFORMATION — allegation l>y inference.</p> <p>An indictment charging bribery which substantially follows the language of the statute but alleges a material fact by inference is sufficient under our criminal procedure, supplemented by Act 215, S. L. 1915, adopting section 3791E R. L., under which an allegation that the accused gave a bribe to an officer with intent to influence him in the discharge of his dirty, alleges by inference that the accused had knowledge of the official character of such officer and is sufficient.</p> <p>Bribery — allegation and proof — directed v&rdict.</p> <p>An indictment charging bribery of an officer to influence him to refrain from arresting players in a che fa game alleged that such game was then being carried on; thé evidence failed to show that any such game had been carried on; .the defendant moved for an instructed verdict in his favor, which motion was denied: Held, that the motion for an instructed verdict should have been granted.</p> <p>Same — corrupt intent — completed crime.</p> <p>The gist of the crime of bribery is the corrupting or the attempt to corrupt an official in the discharge of his duty and is complete when the accused has done all that he can do to consummate the crime, it not being necessary that the officer accepting the bribe do so with a corrupt intent.</p>

<p>Appeal From Tax Appeal Court, Third Circuit.</p>

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

<p>Criminal Law — motion to change plea after verdict — discretion of court.</p> <p>It is not an abuse of discretion for the trial court after a plea of guilty and sentence in a misdemeanor case to refuse defendant’s motion to change his plea from that of guilty to that of not guilty where there is no showing that the defendant was misled by anything said or done by the court or prosecuting attorney although the defendant was sentenced to pay a larger fine than he believed from statements made by a police officer would be imposed upon him.</p>

<p>Error to Circuit Judge,.Fifth Circuit.</p> <p>Hon. L. A. Dickey, Judge.</p>

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

<p>Trusts — corporations—apportionment of extraordinary dividends tie-tween life tenant and remainderman.</p> <p>Where shares in a corporation are left in trust for the benefit of remaindermen, the annual income therefrom being payable to another, an extraordinary stock; dividend declared upon accumulated earnings of the corporation which accrued partly before and partly after the institution of the trust should be apportioned between the respective interests, so much of the dividend as represents earnings which accrued after the creation of the trust, less any premium on the shares in the market immediately after the declaration of the dividend, being distributable to the person entitled to receive the income, the remainder belonging to the corpus.</p> <p>Same — same—extraordinary dividend based on increased value of corporation’s property.</p> <p>A stock dividend upon shares held in trust which represents a natural increase in the value of land owned by the corporation is merely a change in the form of ownership and belongs to the corpus of the trust fund.</p>

<p>Landlord and Tenant — lease—construction.</p> <p>A lease, like any other contract, is to be construed so as to give effect to the intention of the parties and to every part of the instrument if possible, especially to conditions expressed therein.</p> <p>Same — same—words and phrases.</p> <p>No particular form of words is necessary to constitute a lease. Any language which shows the intention of the parties that the lessor will surrender his property and the lessee will take it for a specified term and upon stated conditions is sufficient.</p> <p>Same — same—appurtenances.</p> <p>A lease demised to the defendant four parcels of land on one of which was an artesian well; in the premises of the lease nothing was said about the privileges and appurtenances, while the habendum read “To have and to hold” with all “privileges and appurtenances,” followed by a stipulation that the defendant should have the right to use as much of the water from such well as should be necessary for the proper irrigation of the lands demised to him, it being áhown that one-third of the water from the well is and for three years last past had been sufficient for the proper irrigation of the lands demised to the defendant and that the surplus (two-thirds) of the water from the well had been used in the necessary irrigation of adjacent lands: Held, that such surplus water was excluded from the operation of the lease to the defendant and did not pass to him as an incident necessary to the use of the lands demised.</p>

<p>Reserved Questions from Circuit Judge, Fourth Circuit.</p> <p>•Hon. C. K. Quinn, Judge.</p>

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

<p>Trusts — expense of litigation — counsel fees</p> <p>Where conflicting interests of beneficiaries under a trust require the institution of a suit in order to determine the proper disposition of certain funds, and the litigation is for the general benefit of the parties interested in the trust, reasonable fees may be allowed to be paid to counsel for the respective parties out of the corpus of the trust estate.</p>

<p>Limitation of Actions — acknowledgment of debt — promise to pay.</p> <p>A clear, definite and unqualified acknowledgment made by the maker of a promissory note, after the statute of limitations has run against it, that the note is a yalid and subsisting obligation for which he is liable will give rise to an implied promise to pay it.</p> <p>Same — giving security or substituting collateral.</p> <p>iThe giving of security or the substituting of collateral to secure payment of a note is a sufficient acknowledgment to remove the bar of the statute.</p> <p>Same — acknowledgment made to stranger.</p> <p>An acknowledgment made to a mere stranger, where it is not shown that it was made with the intent on the part of the debtor that it should be communicated to the creditor, nor that it was in fact communicated to him and lulled him into inaction, is ineffective to remove the bar.</p>

<p>Attachment — sufficiency of affidavit.</p> <p>An affidavit for attachment which shows the indebtedness of the defendant to the plaintiff “over and above all just credits and offsets” is sufficient without stating that the indebtedness is upon contract, express or implied, a fact to be determined from the complaint in the action.</p> <p>Same — undertaking for attachment.</p> <p>Under section 2783 R. L. an undertaking for attachment in a sum not less than double the amount sued for is required, and where the undertaking for attachment is less than double the amount for which judgment is asked the attachment should be discharged on proper motion made.</p> <p>Principal and Agent — assumpsit—liability of agent.</p> <p>An agent who receives money for his principal under promise to deposit it in bank for the principal and neither deposits the money in bank to the credit of the principal nor pays it to the principal, hut delivers it to another who appropriates it to his own use, is liable therefor to the principal in an action of assumpsit.</p>

<p>Exceptions from Circuit Court, Third Circuit.</p> <p>Hon. J. W. Thompson, Judge.</p>

<p>Ejectment — variance—failure of proof.</p> <p>In an ejectment case where the plaintiff sought to recover 1 1-2 acres of land, and proves title to but one acre, and the proofs further show that the plaintiff is in possession of an acre and the defendant is in possession of an undefined parcel not exceeding a quarter of an acre in area, a nonsuit is properly granted for variance between allegation and proof, and failure of proof.</p> <p>Same — pleading and proof — description of land in dispute.</p> <p>A declaration in ejectment should describe the land sought to be recovered with sufficient certainty that the land can be identified with the description given, and the proofs should show that the land of which the defendant is in possession is the land described in the declaration.</p>

<p>Larceny — unknown owner.</p> <p>Section 3924 R. L. was intended to relate only to cases of larceny where the owner of the property is unknown and not to cases where the owner .of the stolen property is known.</p> <p>Same — ownership.</p> <p>The ownership of property alleged to have been stolen is a material fact and must be proved as alleged.</p> <p>Criminal Law — necessary evidence.</p> <p>Every material allegation in an indictment or information or charge against a defendant in a criminal case must be proven as alleged.</p>

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

<p>Petition for Writ of Certiorari.</p> <p>Robertson, C.J., Quarles and Coke, JJ.</p>

<p>Fraud — elements—intent.</p> <p>A promise, accompanied with an intention not to perform it, and made by the promisor for the purpose of deceiving the prom-isee and inducing him to act where he otherwise would not have done so, constitutes fraud.</p> <p>Cancelation' oe Instruments — fraudulent representations.</p> <p>Where a parent secured from his children the conveyance to himself of valuable property upon the promise to form a corporation and to transfer the property thus obtained, together with other property owned by him, to the corporation and to prorate the stock in said corporation among those originally owning the property, when he in fact had no intention of fulfilling his promises but used them merely as a pretense to induce his children to execute the deed, equity will come to the relief of the defrauded parties and decree a cancelation of the deed thus obtained.</p> <p>Deeds — undue influence — burden of proof.</p> <p>Where the grantors are of mature age and sound mentality the mere fact that they are the children of the grantee does not raise a prima facie presumption of the invalidity of the deed from the children to their father thereby casting the burden of showing the fairness of the transaction upon him.</p> <p>Pleading — defective., aided by absence of demurrer and the introduction of evidence to support.</p> <p>A complaint which only inferentially avers a material fact, in the absence of a demurrer and where much evidence is given without objection to sustain the fact improperly pleaded, held, the defect was thereby cured.</p>

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

<p>Exceptions from CiRCurr Court, FiRST Circuit.</p> <p>Hon. T. B. Stuart, Judge.</p>

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

<p>Trial — evidence—cross-examination of witness.</p> <p>While the trial court may permit the defendant on cross-examination of a witness to go into the merits of his defense by inquiring into matters not testified to by the witness on direct examination, it is better practice not to permit him to do so.</p> <p>Appeal and Error — stating reasons for decision.</p> <p>A general finding that plaintiff should recover a certain sum of money from defendant and that defendant has failed to make out his alleged defenses of want of consideration and set-off or counter-claim and that plaintiff has established her case as alleged in her complaint by a preponderance of the evidence does not comply with the provisions of section 2380 R. L. which requires the trial court in a jury-waived case to state in its decision the reasons therefor, and the failure to state such reasons is reversible error.</p>

<p>Appeal prom Circuit Judge, Third Circuit.</p> <p>Hon. J. W. Thompson, Judge.</p>

<p>Exceptions from Circuit Court, Fourth Circuit.</p> <p>Hon. C. K. Quinn, Judge.</p>

<p>Contract — release on conditions subsequent.</p> <p>The release of an existing debt upon conditions subsequent merely suspends the right of action thereon until such time, if ever, the event contemplated occurs. The release -will be avoided if the conditions are not complied with.</p> <p>Same — illegal contract not to he enforced by court.</p> <p>A party to an illegal contract cannot come into a court of law and ask to liave liis illegal objects carried out; nor can lie set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim. Courts of justice will never recognize or uphold any transaction which in its object, operation or tendency is calculated to be prejudicial to the public welfare.</p> <p>Same — void as against public policy.</p> <p>The state has a general interest in the freedom of its people in the exercise of their legal and normal rights and any contract that is subversive of those rights without any benefit to the re-strainor is against public policy.</p> <p>Same — same.</p> <p>A contract which attempts to restrain another from incurring indebtedness in the sum of one thousand dollars and upwards without limit as to time or place, without benefit to the covenantee, is an unreasonable restraint of trade and void because against public policy.</p> <p>Pleading — rule of court.</p> <p>A rule of court requiring a defendant to give notice that the defense of illegality will be relied upon does not apply where the illegality appears upon the face of the plaintiff’s complaint.</p>

<p>Exceptions from Circuit Court, Third Circuit.</p> <p>Hon. J. W. Thompson, Judge.</p>

<p>Exceptions 'from Circuit Court, Second Circuit.</p> <p>Hon. W. S. Edings, Judge.</p>

<p>Evidence — publication of libel.</p> <p>The publication of a libelous article in defendant’s newspaper is sufficiently shown by production of a copy of the newspaper containing the libelous article and by evidence that the morning following the issue of such newspaper a third party called plaintiff’s attention to the article and that ten or twelve persons later spoke to him about it where an inspection of the article shows that no one could tell that it referred to the plaintiff without reading the body of the article.</p> <p>Libel and Slander — attorney—misconduct.</p> <p>An article printed in a newspaper to the effect that an affidavit had been filed in a civil case stating that plaintiff, an attorney, had settled a case without the knowledge or consent of his client imputes malpractice or professional misconduct to the plaintiff and is libelous per se.</p> <p>Same — presumption of malice.</p> <p>The law presumes malice from the publication of a libel that is actionable per se and it is not necessary to prove actual malice.</p> <p>Same — privileged communication.</p> <p>The privilege extended to a litigant to charge in a judicial proceeding libelous matter pertinent to the issues therein does not extend to third parties or the press. The republication of libelous matter contained in the pleadings or other papers in civil actions prior to hearing is an adoption and indorsement of such libelous matter by the one republishing it and. such republieation is not privileged.</p> <p>Appeal and Error — exceptions—point not raised in trial court.</p> <p>On exceptions the appellate court will not consider the question of excessive damages when that question was not raised in the trial court by exception or by motion for a new trial based on the ground that the damages awarded are excessive.</p>

<p>Reserved Questions prom Circuit Court, Fourth Circuit.</p> <p>Hon. C. K. Quinn, Judge.</p>