Volume 24 — Hawaii Reports

<p>Trial — decision of court in civil cases, jury-waived.</p> <p>In the trial of civil cases, where a trial by jury has been waived, the court shall hear and determine the case both as to the facts and the law and its decision shall'be rendered in writing stating its reasons therefor.</p> <p>Adverse PossEssiON^-w/iem once commenced will not he checked hy a conveyance to minors.</p> <p>If the ancestor or grantor of two minor children was living at the time the statute of limitations had commenced to run in favor of a third person the disabilities through non-age of his grantees could not check or impede the running of the statute.</p> <p>Same — same.</p> <p>An adverse possession which began during the life of the ancestor or grantor will continue as' against the infant heirs or grantees.</p> <p>Same — effect of.</p> <p>By adverse possession of land for the statutory period of limitation the adverse holder acquires a title in fee simple which is as perfect as a title by deed. Its legal effect is not only to bar the remedy of the owner of the paper title but to divest his estate and vest it in the party holding adversely for the required period of time.</p> <p>Same — continuity of not destroyed by deed to minors residing on property.</p> <p>Where the statute of limitations had commenced to run in favor of defendant the subsequent delivery of a deed of the property by the holder of the paper title thereto, to two minor children of defendant who were then living with defendant upon the property, would not destroy the continuity of defendant’s possession nor have the effect of tolling the bar of the statute.</p> <p>Same — claim of title.</p> <p>While it is true that the possession must be under claim of title it is not essential that there should be a rightful title. An invalid and defective title, if believed to be good, should be equally as operative as a valid one in giving effect to a possession taken and held under it.</p>

<p>Statutes — amendment—effect.</p> <p>When a statute is amended “to read as follows,” those parts which are omitted are repealed and new provisions talce effect at the time the statute as amended becomes operative (Following Weingheimer v. Lufkin, 22 Haw. 183).</p> <p>Same — same—presumption as to oversight.</p> <p>Courts will not presume an oversight on the part of the legislature in the enactment of an amendatory statute where such presumption is avoidable.</p> <p>Triad — words and phrases.</p> <p>The word “trial” as-used in See. 2270 R. L. as amended by Act 49 S. L. 1917, means a trial on the merits — the examination of the evidence for the purpose of determining the issues of fact between the parties, and does not include the hearing of an appeal from a district court solely on points of law.</p>

<p>Garnishment — property subject to attachment.</p> <p>A warrant for the salary of a government beneficiary issuable to a judgment creditor under a garnishment order is not exempt from attachment in another garnishment proceeding upon the ground that it is property in custodia legis.</p> <p>Same — same.</p> <p>The fact that by an agreement between the owner of a judgment obtained by garnishment against a government beneficiary and his attorneys the latter were to receive a certain percentage of the sum recovered, the judgment not having been assigned, would not prevent the attachment of the salary warrant in another garnishment proceeding by a creditor of the owner of the judgment, if the proceeding could otherwise be maintained.</p> <p>Same — statutory attorney’s fees.</p> <p>Statutory attorney’s fees in assumpsit cases are taxed as part of the judgment, and as between the owner of the judgment and his creditors belong to him, and not his attorneys.</p> <p>Same — attachment of debts on application of judgment creditor.</p> <p>In order to sustain a garnishment under section 2808 of the Revised Laws the applicant must show that he is a judgment creditor or has succeeded to the rights of a judgment creditor under a valid judgment.</p> <p>District Magistrates — pleadings in district courts.</p> <p>The rule which dispenses with rigid forms of pleading in the district courts does not obviate the necessity of stating all the essential facts required to entitle one to a special order in a statutory proceeding.</p>

<p>Appeal prom Circuit Judge, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Judgment — divorce—opening default.</p> <p>The technical law of default does not apply to an action of divorce and where there has been an ex parte hearing and a decree of divorce in favor of the libellant the default' should be opened, the decree set aside and the defendant permitted to defend on the showing made in this case as set forth in the opinion, although the showing might not be sufficient in an ordinary action.</p> <p>Same — same—same.</p> <p>The libellee in a divorce case was served out of the jurisdiction of the court; a decree of divorce rendered against him on ex parte hearing; a motion to open the default and set aside the decree was promptly made, the motion being supported by affidavit showing that the libeilee was anxious to defend and had cabled his attorney to appear for him, but owing to the temporary absence of his attorney libeilee was not represented at the hearing; the affidavit also showed that the libeilee denied nearly all the allegations of the libel and attempted to explain the others: Held, that the motion should have been sustained and it was an abuse of discretion to deny the same.</p>

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

<p>Easements — water rights — abandonment—nonlaser.</p> <p>Mere non-user of water of however long duration does not constitute an abandonment of an appurtenant water right where there has been no substituted use, and there are no intervening equities, or there has been no adverse user.</p> <p>Abandonment — water rights — non-user—proof.</p> <p>Non-user of a right to take water from a stream is not shown by proof that branch ditches have been filled up or disused, where it appears that the intakes and main ditches leading from the stream have been maintained, and it does not appear that water has not been diverted as it has been available under a diminished supply.</p> <p>Waters and Watercourses — private water rights — basic law.</p> <p>Private water rights in Hawaii are governed by the principles of the common law of England except so far as they have been modified by or are inconsistent with Hawaiian statutes, custom or judicial precedent. The law of priority of appropriation which prevails in the arid sections of the mainland of the United States has never been recognized in this Territory.</p> <p>Same — ancient ditches — appurtenant rights.</p> <p>Ancient ditch systems connected with running streams became incorporated into the permanent topography of the country, and upon the acquisition of private titles to lands to which such ditches were tributary the right to water therefrom, in accordance with custom, passed as an appurtenance or incident without express mention in the award or grant.</p> <p>Same — same—proportional diminution.</p> <p>Ancient ditches which were constructed and have been used for the purpose of diverting a constant flow of water from a stream and distributing it among several parcels of land are to be regarded virtually as natural water courses, and in case of drought or diminished supply the flow in one ditch may not be increased by artificial means to the detriment of lands entitled to water from another ditch, but the dams must remain as they were and all must suffer accordingly. The general principle of proportional diminution in times of scarcity applies as well to different lands along one ditch as between different ditches from the same stream, but where the supply has greatly diminished the rule will not be applied as between the several owners on a long ditch if the entire flow would be lost through seepage and evaporation.</p> <p>Same — natural use — artificial use — superior right.</p> <p>The natural use of water for domestic purposes is a superior right to its use for artificial purposes.</p> <p>Same — irrigation right — proof—quantity.</p> <p>Where a customary use of water for irrigation upon land at the time it first became the subject of private ownership is shown by satisfactory evidence the quantity is to be determined by the amount used at and immediately prior to the date of the award or grant, but the right is not to be denied merely because that quantity •was not measured and cannot be proven.</p> <p>Same — new use — burden of proof.</p> <p>Under ordinary circumstances the burden of showing that a new diversion of water does not prejudice the right of another is upon the party asserting the right to the new use, but where the extent of the right possessed by the other is not known to himself and cannot be ascertained, the new use, if a beneficial one, ought not to be restrained upon merely conjectural grounds.</p> <p>Same — right to drinking water on ahupuaas.</p> <p>The right to drinking water declared by section 471 of the Revised Laws for the people on ahupuaas privately owned is a right in gross as distinguished from an appurtenant right to water for domestic use.</p> <p>Same — change in method of diversion.</p> <p>A concrete dam to divert water from a stream may be substituted for a rubble dam of loose construction if the change works no injury to other rights in the stream.</p> <p>Same — surplus waters of stream.</p> <p>Where a stream flows through one ahupuaa into another each ahupuaa is entitled to a reasonable use of the surplus water of the stream according to the principles applicable to riparian rights at common law.</p> <p>Same — water controversy — authority of commissioner.</p> <p>In a water controversy the authority of the circuit judge, sitting as commissioner, and tlie supreme court on appeal, is limited to ascertaining, determining, defining and enforcing proven riglits.</p>

<p>Motion for Leave to Introduce Newly Discovered Evidence.</p>

<p>Mechanics’ Liens — when attached under sections 2863 and 2864 R. L.</p> <p>A mechanic’s lien comes into existence at the time notice of the claim of lien is filed in the proper clerk’s office and does not relate back to the time when the labor or materials were furnished.</p> <p>Jurisdiction — district court — question of title to real estate.</p> <p>The inhibition contained in the proviso of section 2297 as to district courts exercising jurisdiction in actions in which the title to real estate shall come in question is to the action as a whole and as to all of the parts thereof.</p> <p>Same — some—same.</p> <p>Plaintiff in an action in the district court commenced to enforce a mechanic’s lien alleged that after the materials for which the lien is claimed were "furnished, but before notice of lien was filed and served, the defendant J., without consideration and to defraud plaintiff of his lien, conveyed through an intermediary to his wife (one of the defendants) the premises upon which the lien is claimed; the wife filed a plea to the jurisdiction of the court upon the ground that title to real estate is involved, supported by affidavit tending to show that the transaction was bona fide, for a valuable consideration, and without knowledge of liability of the premises as to the lien claimed: Held, that the district court correctly sustained the plea and dismissed the action.</p>

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

<p>Error to Circuit Court, First Circuit. Hon. C. W. Ashford, Judge.</p>

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

<p>Constitutional Law — statutes—right to question constitutionality of statute.</p> <p>It is a well settled rule that a question of tbe supposed conflict of a statutory provision with the Constitution will not be considered at the instance of one whose rights do not appear to be affected by such provision, but where a statute which so regulates the correlative rights of two classes — as employers and employees — that if void as to one it should be held void as to the other, complaint of a party belonging to one class may require an examination of the statute in both aspects.</p> <p>Same — Fifth Amendment — due process of law.</p> <p>Due process of law requires that when one’s rights of life, liberty or property are to be adjudicated he must have notice of the proceeding and be given a hearing — or, at least, an opportunity to be heard — thereon. But so far as the statute providing for the proceeding is concerned it is sufficient if it provides for, or, at least does not negative, the right of the adverse party to notice that the proceeding has been commenced. Notice of the time of hearing must be given the parties by the tribunal before which it is pending whether required by statute or rule or not. The failure to give such notice may invalidate the particular proceeding in which the failure occurred, but will not draw in question the statute.</p> <p>Same — Seventh Amendment — right of trial loy jury.</p> <p>The constitutional requirement that in suits at common law the right of trial by jury shall be preserved does not extend to other than actions at common law. The right is not invaded where, as in the case of Workmen’s Compensation Acts, the common law action for damages for personal injury sustained by employees in industrial employment has been abolished and-a new and fixed measure of compensation is fixed' by statute.</p> <p>Same — 'Workmen’s Compensation Act — police power.</p> <p>The right of the legislature to establish a new system of compensation for injured employees based upon the theory underlying Workmen’s Compensation Acts does not necessarily depend upon whether the employee was engaged in “hazardous” or “extra-hazardous” employment, or on whether he is a skilled or unskilled laborer, or upon the classifying of the different kinds of industrial employment. Nor does it depend on the inclusion in the statute of a provision for a governmental compensation fund to which all employers shall contribute. The legislature having the power to abolish the common law rules with respect to the relations between employers and employees engaged in industrial enterprise for profit in the more hazardous kinds of work, the extension of the new system to all industrial employment is a reasonable and valid exercise of the police power.</p>

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

<p>Appeal and Error — mandamus—satisfaction of judgment..</p> <p>Under the statute relating to writs of error, the judgment in a mandamus case is not regarded as fully satisfied where a peremptory writ, though served, has not been complied with.</p> <p>Same — same—plaintiff in error in contempt of court.</p> <p>In this Territory the judgment of a circuit judge in a mandamus case may be reviewed by the supreme court either upon an appeal or a writ of error. The right of the respondent to a writ of error is not lost because of the fact that he may be in contempt of court for not having obeyed the mandate of a peremptory writ.</p> <p>Schools — status of teacher — contract.</p> <p>Where one who has been appointed a school' teacher by the department of public instruction enters into a contract with the Territory to serve as such teacher for a specified time, the department is under no legal obligation to reappoint him p,t the expiration of the contract, or to assign a reason for not reappointing him, or to give him a hearing in connection with its decision not to reappoint him.</p>

<p>Appeal from Public Utilities Commission.</p>

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

<p>Fraud — conveyance—intent of parties.</p> <p>The test of a fraudulent conveyance for a valuable consideration is the mutual intent of the parties. Fraudulent intent on the part of one is not sufficient without a corresponding intent on the part of the other.</p> <p>Same — same—same.</p> <p>The rule is settled that a conveyance by a debtor to one of his creditors in payment of his claim is not invalidated .by the fact that it . was made with an intent on the part of the vendor to defraud other creditors, where such intent is not known to, or participated in, by the purchaser.</p> <p>Same — same—presumption of law where vendee is in possession of property.</p> <p>The law presumes the possession of the vendee to have been lawfully acquired, and where it appears that a sufficient consideration was paid the transfer will be upheld unless it be affirmatively shown that he purchased in bad faith.</p>

<p>Equity — dismissal of bill — practice.</p> <p>It Is not correct practice to dismiss a bill in equity for want of equity in the bill, on motion of the respondent after answer filed unless the respondent admits the truth of all the facts averred in the bill and submits the case without leave to offer evidence in the event that his motion shall be denied.</p> <p>Telegraphs and Telephones — right of telephone company to equitable relief against interference with its business.</p> <p>A bill for an injunction filed by a public telephone company which shows, in substance, that the company, in performance of its duty to give good and efficient service, furnishes to its subscribers, for their convenience and information, a directory giving the names and numbers of all its subscribers, and a special directory in the Japanese language for the use of subscribers of Japanese nationality; that the company has endeavored to properly fulfil its duty in the premises, but that such duty cannot be effectively performed unless it has control of the publication and distribution of such directories to the end that their accuracy may be verified; that the respondent has published and is circulating a directory in the Japanese language which is inaccurate and incomplete and contains the names of persons who are not subscribers to the complainant’s telephone system, and which causes much trouble and annoyance to the company and its subscribers; and that in publishing the names of non-subscribers who may be reached by calling up certain telephone numbers the respondent causes an increase in the volume of the company’s operations and at the same time deprives the company of a certain amount of revenue which it is entitled to receive, states a case entitling the complainant to relief in equity.</p>

<p>Courts — objection for want of jurisdiction can be raised when.</p> <p>■Objection for want of jurisdiction, if it exists, may be raised by answer or at any subsequent stage of tbe proceedings and may be raised for tbe first time on appeal. It may, as a matter of fact, be raised by tbe court of its own motion.</p> <p>Same — jurisdiction of district courts in summary proceedings between lessor and lessee.</p> <p>Where a lease provides that the lessor may at any time withdraw all or any part of the demised premises for certain enumerated purposes, the refusal, after notice, of the lessee to part with the possession of the premises required by the lessor for one of the purposes specified in the lease constitutes a breach of a condition of the lease and works a forfeiture thereof, and the lessor may proceed under the authority of chapter 154 R. L. to regain possession of the premises by summary proceeding.</p>

<p>Ejectment — pleading—proof.</p> <p>The plaintiff in ejectment must describe in his complaint the premises which he seeks to recover with certainty and he must prove title to the land so described.</p> <p>Deeds — description of premises conveyed.</p> <p>The description of the premises conveyed by a deed must be sufficiently definite and certain to enable the land to be identified, otherwise it will be void for uncertainty.</p> <p>Same — uncertainty in description.</p> <p>A deed conveying a number of pieces' of property, which describes one piece of property as “the house lot at Halakaa, Lahaina, Territory ,of Hawaii,” without reference to any other deed, instrument or existing, condition capable of ascertainment for the purpose of identifying such house-lot, is void for uncertainty.</p>

<p>Landlord and Tenant — summary possession — jurisdiction of district courts.</p> <p>In a summary proceeding plaintiff alleged a, wrongful withholding by defendant after the termination of an alleged tenancy; defendant filed his affidavit by way of answer or plea to the jurisdiction denying the tenancy alleged and claimed ownership and right of possession by virtue of purchase from plaintiff: Held, that the title to real estate was involved and that the cause should have been dismissed for want of jurisdiction.</p>

<p>Error to Circuit Court, First Circuit. Hon. C. W. Ashford, Judge.</p>

<p>New Trial — approaching juror — waiver.</p> <p>In a case where there were three defendants, after the jury had been instructed and retired to consider of their verdict they reported to the court that one juror had been approached by a stranger and requested to find for the defendant; two of the defendants thereupon moved that the jury be discharged and a mistrial entered, which motion was denied; plaintiff did not join in the motion nor object to the ruling of the court; the jury returned a verdict against one defendant but in favor of the two defendants asking the discharge of the jury; later plaintiff moved for a new trial on the sole ground that a juror had been approached and asked to find for the defendant: Held, that the motion for new trial was properly denied; that plaintiff by his silence and inaction had waived the irregularity of which he complained.</p> <p>Same — same.</p> <p>It is proper to deny a motion for new trial based upon the ground that a stranger who is not shown to have acted by procurement or with the knowledge or consent of any party to the action approached one of the jurors with the request that he find for the defendant in the absence of a showing that the verdict rendered was not authorized by the evidence and the law of the case and no showing made that the jury or any one of the jurors were influenced by such request.</p> <p>Same — same.</p> <p>If the successful party is shown to have tampered with a juror the verdict in his favor should be set aside so as to remove the court’s proceedings from suspicion of undue influence and as punishment for wrong-doing.</p>

<p>Appear and Error — exceptions.</p> <p>A general exception to the entire charge of the court given to the jury does not bring to the attention of this court any specific question of law presented to the lower court and is too general to he considered in the appellate court.</p> <p>Homicide — intent.</p> <p>In determining the criminality of the act of killing it is immaterial whether the intent was to kill the person killed, or whether the death of such person was the accidental or otherwise unintentional result of the intent to kill someone else.</p> <p>Same — manslaughter—instructions.</p> <p>On the trial of a person accused of committing the crime of murder, if there be no evidence upon which the jury can properly find the defendant guilty of an offense of a lesser degree than the one charged it is not error to instruct the jury that it cannot return a verdict of guilty of manslaughter or of any offense less than the one charged.</p> <p>Same — same—same.</p> <p>But in a prosecution for murder, where there is some substantial evidence, however weak and inconclusive it may appear to the trial court, that would tend to mitigate the homicide to manslaughter, it is error for the court to refuse to .instruct the jury concerning manslaughter. Held, in this case, that such instruction should have been given.</p>

<p>Appeal and Error — exceptions—specific question.</p> <p>The purpose of an exception is to bring to the appellate court a specific question of law upon wbicb the trial court has erroneously ruled to the prejudice of the party excepting.</p> <p>Same — same—rejected evidence — record.</p> <p>The appellate court will not consider an exception to the action of the trial court in sustaining an objection to a question asked a witness when the record does not disclose any offer to show what the answer will be and that the answer would be material and competent evidence.</p>

<p>Appeal and Error.</p> <p>A party to a suit cannot appeal from a decree therein rendered if he is not thereby affected.</p>

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

<p>Exceptions From Circuit Court, First Circuit. Hon. S. B. Kemp, Judge.</p>

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

<p>Divorce — authority of court to grant where actual jurisdiction of defendant not acquired.</p> <p>Owing to the fact that an action for divorce is in the nature of a proceeding in rem under certain circumstances a court may render a valid decree of divorce although it never acquired actual jurisdiction of the person of the defendant.</p> <p>Same — decree for alimony — jurisdiction of defendant required.</p> <p>A decree for the payment of money as alimony is essentially in personam and it is therefore, totally void in the absence of actual jurisdiction over the person and property of the one against -whom it is awarded.</p> <p>Judgment — effect of full faith and credit clause of Federal Constitution applied to judgment of a sister State.</p> <p>Under the full faith and credit clause of the Federal Constitution a duly authenticated judgment of a court of a sister State, exercising its jurisdiction as a common law court,, and presented in a court of this Territory, would carry with it the assumption that the court of the forum rendering the judgment not only had jurisdiction of the suhject-matter of the suit hut of the parties thereto and it would not he incumbent upon one who bases a right of action upon such a judgment to aver facts essential to the existence of. jurisdiction.</p> <p>Same — same.</p> <p>But it is an established rule that where a court of general jurisdiction has special and statutory powers conferred upon it ■ which are wholly derived from statute and not exercised according to the course of common- law or are not a part of its general jurisdiction it is to be regarded quoad hoc an inferior or limited court and its judgment to he treated accordingly, that is, its jurisdiction must appear upon the record and cannot he presumed.</p> <p>Courts — jurisdiction in divorce matters.</p> <p>It is elementary that in the early history of jurisprudence in England the common law courts exercised no jurisdiction over divorce cases, jurisdiction in such matters resting entirely with the ecclesiastical courts of the realm. In the several States of the Union that jurisdiction rests alone with those courts upon which it has been expressly conferred by legislative enactment.</p> <p>Same — same—pleading.</p> <p>This being true no presumption of jurisdiction obtains in such proceedings in any court of any of the States of the Union and all courts exercising jurisdiction in any such case must he taken and held to he courts of inferior or limited jurisdiction and in pleading such a judgment of another court it is necessary to aver in appropriate language its jurisdiction over the parties and the suhjectmatter of the suit.</p>

<p>Criminal Law — term of sentence.</p> <p>When a sentence is imposed under the indeterminate sentence laws of this Territory the term of <the sentence is the maximum period fixed by the court.</p> <p>Same — parole—effect of.</p> <p>After the prisoner has served the minimum term provided by law or imposed by the sentence of the court he may be allowed to go on parole but he is still in the legal custody and control of the prison authorities and is deemed still to be serving out the sentence imposed upon him.</p> <p>Same — cumulative sentences may he imposed.</p> <p>Courts may impose cumulative sentences and in so doing the term of the last sentence should commence from the termination of the sentence next preceding.</p>

<p>Sunday — time—computation.</p> <p>In computing the time in which a summons may be made returnable if the last day falls on Sunday the summons may properly be made returnable on Monday, the next legal day.</p> <p>Appeal and Error — order sustaining motion to quash summons not appealable.</p> <p>An order of a district magistrate sustaining a motion to quash a summons is not a final order, and therefore is not appealable.</p>

<p>Continuance — abuse of discretion.</p> <p>It is not an abuse of discretion for tbe trial judge to refuse at tbe close of the hearing the verbal request for a continuance which is not supported by a showing that the accused can and will produce further evidence' material to his defense although some of the developments during the hearing may tend to surprise the accused.</p>

<p>Exceptions From Circuit Court, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Appeal and Error — instruction—illegal consideration.</p> <p>Where a requested instruction erroneously assumes that if a part of the consideration for the note sued on was illegal the burden of showing to what extent such consideration was illegal devolves upon the defendant and in the absence of such evidence the jury should find the full amount of the note in favor of the plaintiff such requested instruction is properly refused.</p> <p>Bills and Notes — illegal consideration.</p> <p>A note given in part for intoxicating liquors sold without a license to sell the same, the note not showing on its face how much of the consideration was for such liquors, is indivisible and is void on account of illegality in the consideration.</p>

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

<p>Appeal From Circuit Judge, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Equity — decree—certainty.</p> <p>A decree in equity foreclosing a mortgage securing a note payable in instalments which sets forth the note in haec verba, finds that the first instalment thereof is due and unpaid, and finds that the conditions of the mortgage had been broken.by the nonpayment of the note, is not void for uncertainty.</p> <p>Execution — equity—jurisdiction.</p> <p>An execution may issue upon a decree for money rendered in a suit in equity where the court rendering the decree had jurisdiction of the subject-matter of the suit and of the parties.</p> <p>Equity — lease—relief from forfeiture — damages.</p> <p>Equity having jurisdiction to relieve from a forfeiture for nonpayment of rent, water and sewer rates, the decree properly offset the rental value of the demised premises during the time they were withheld by the lessor from one who had purchased the leasehold at execution sale and tendered the rent due, against the rent in arrears.</p> <p>Evidence — impeaching and supporting witness.</p> <p>Evidence is not admissible to prove that the reputation of a witness for truth and veracity is good where there has been no attempt to impeach him by showing that his reputation for truth and veracity is bad.</p>

<p>Deeds — construction—repugnant clauses.</p> <p>It is a rule of law that in the construction of deeds if two clauses therein are so repugnant that they both cannot stand the first will be sustained and the latter rejected.</p> <p>Same — same—intent.</p> <p>While the intent and not the words is the principal thing to be regarded yet in searching for .the intent we are hedged about by certain positive rules of law which must be heeded. One of such rules is that a grantor cannot destroy his own grant however much he may modify it or load it with conditions. Having once granted an estate in his deed no subsequent clause, even in the same deed, can operate to nullify it.</p>

<p>Deeds — inoperative clauses.</p> <p>Where the granting clause conveys to grantee a title in fee simple phrases therein expressing the motive of the grantor for making the deed are inoperative and do not limit the grant.</p> <p>Same — words and phrases — “forever."</p> <p>The absence of the word “forever” from the granting clause of a deed does not. limit the grant to a life estate; the word was of no particular signification at common law and we have no statute requiring its use.</p> <p>Same — same—heirs.</p> <p>The word “heirs” is not necessary in a deed in order to convey the fee to the grantee.</p> <p>Same — repugnancy between premises and habendum.</p> <p>Where the granting clause of a deed conveys the title in fee to the grantee and the habendum in terms limits it to an estate for life with remainder to the lawfully begotten children of the grantee there is a repugnancy between the granting clause and the habendum, the former controlling to the exclusion of the latter, the grantee taking the fee simple title under the deed.</p> <p>Courts — land court — jurisdiction.</p> <p>The land court is a court of limited jurisdiction created for the special purpose of carrying into effect the Torrens title scheme, derives all its powers from the statute relating to it and can exercise no power not found within those statutes.</p> <p>Same — same—registering title between answering contestants.</p> <p>The land court is given power to register the title of the applicant only and has no power to register the title of answering contestants between whom exist a diversity of interests.</p>

<p>Appeal From Circuit Judge, Fourth Circuit. Hon. C. K. Quinn, Judge.</p>

<p>Appeal and Error — interlocutory exceptions.</p> <p>Where a party before final judgment seeks to have an interlocutory order in a term case reviewed in the supreme court he must reduce his exception to writing and present it to the trial judge for allowance and certification to the supreme court within ten days of the making of the interlocutory order sought to he reviewed under circumstances like those disclosed by the record in this case.</p>

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

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

<p>Deeds — naming grantee.</p> <p>Where the granting clause of a deed fails to name the grantee or it is doubtful therefrom in whom the estate is intended to vest the omission may be cured or the uncertainty cleared away by the habendum wherein the grantee is named.</p> <p>Joint Tenancy — tenancy in common — statutes.</p> <p>If there is a doubt as to whether the grantor intended by his deed to vest an estate in joint tenancy or in tenancy in common the deed must, under the provisions of section 3132 R. L., be construed to create an estate in common and not one in joint tenancy or by entirety. If, however, it manifestly appears from the tenor of the deed that it was intended to create an estate in joint tenancy the deed must be given that effect.</p>

<p>Appeal and Error.</p> <p>Where a taxpayer appeals from the decision of the tax appeal court fixing the value of his property at more than his return but at less than the assessment, and the assessor does not appeal, held: That under these circumstances the valuation fixed by the tax appeal court constitutes the maximum valuation which this court could place upon the property.</p> <p>Taxation — weight of decision of tax appeal court.</p> <p>The decision of a tax appeal court in fixing values is presumed to he correct and should not be lightly overturned.</p>

<p>Appeal and Error — exception—harmless error.</p> <p>A motion by defendant at the close of the prosecution’s case for an instructed verdict in his favor is equivalent to a demurrer to the evidence and where the motion is erroneously overruled the error becomes harmless if the defendant fails to rest his case on the evidence for the prosecution and introduces evidence in his own behalf which, with the evidence for the prosecution, justifies the verdict against him.</p> <p>Embezzlement — control by accused with owner’s consent.</p> <p>Where the defendant buys stock on margin for a client and controls the account therefor, the client instructing him to hold accruing dividends to accumulate and apply on the purchase price and to not sell the stock, the control of the stock is in the defendant with the consent and authority of the owner within the meaning of the provisions of the statute defining embezzlement.</p> <p>Same — conversion—use and benefit of accused.</p> <p>The defendant bought capital stock of a corporation for a client on margin from a broker in New York; the defendant controlled the account for the stock with the consent of his client and without the latter’s consent had the account for the stock sold and the realization therefor credited to another account for which defendant was liable: Held, that the conversion was for the use and benefit of the defendant within the meaning of the statute defining embezzlement.</p> <p>Same — jurisdiction.</p> <p>Where the defendant, operating in the Territory of Hawaii, cabled from Honolulu to New York directing a broker in New York to sell certain stock which was in his control for a client, the proceeds of which defendant embezzled, the crime being commenced in the Territory of Hawaii the trial court in Hawaii has jurisdiction to indict, try and punish the defendant for such crime.</p> <p>Evidence — criminal law — cross-examination of accused.</p> <p>Where a defendant takes the witness stand in his own behalf he may on cross-examination be asked about any matter pertinent to the issues although he has not testified on direct examination as to all of the things about which he is asked.</p>

<p>Exceptions From Circuit Court, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Appeal and Error — reserved questions — returned unanswered.</p> <p>Questions were reserved to this court touching the merits of a bill in equity raised by demurrer which the court answered, advised that the demurrer he sustained and in the opinion made suggestions whereby the bill could be amended so-as to entitle plaintiff to relief in equity; the plaintiff amended her hill in the court below to which amended bill the defendants demurred and the circuit judge has reserved the questions to this court touching the merits of the amended bill and which could be determined from the rules enunciated in the former opinion of this court: Held that this court will, on its own motion and in the exercise of its discretionary power, return the questions unanswered.</p>

<p>Exceptions From Circuit Court, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Appeal From Circuit Judge, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Landlord and Tenant — rescission of lease — damages.</p> <p>Where a member of a hui claims a specific portion of the hui lands and leases the same to the’plaintiff who is unable to get possession of the demised lands by reason of the fact that other parties are in possession and holding under the lessor the plaintiff may rescind the lease and recover damages sustained by reason of failure to obtain possession.</p> <p>Same — hui—one member holding under another.</p> <p>One member of a hui may rent and hold from another member a specific portion of the hui lands claimed by the. latter.</p>

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

<p>Abatement and Revival — set-off and counterclaim.</p> <p>Where the defendant is sued in assumpsit and in his answer pleads by way of set-off and counterclaim a cause of action in assumpsit against the plaintiff, and thereafter, as plaintiff, sues the plaintiff in the prior action as defendant upon the identical cause of action pleaded by way of set-off and counterclaim in the former action, the defendant’s plea in abatement in the last action pleading the pendency of the former action and the set-off and the counterclaim therein should be sustained and the last action abated.</p> <p>Set-off and Counterclaim — control of action.</p> <p>Under Sec. 2392 R. L. a set-off and counterclaim is not only a defense by deduction, but is itself an action,' and while the plaintiff may control his own action, and discontinue the same, he cannot control, nor discontinue, defendant’s cause of action upon the set-off and counterclaim.</p>

<p>Adoption — minors—adults—statute.</p> <p>Under a statute providing for the adoption of children, the word “minor” or other words Showing an intent to limit adoption to minors not being used, an adult may be adopted by another and the adoption creates in law the relation of parent and child.</p> <p>Words and Phrases — “children, legitimate or legitimated.”</p> <p>The phrase “children, legitimate or legitimated,” as used in a by-law of a beneficial society, is broad enough to and does include a child that has been legally adopted under the statute of adoption.</p> <p>Beneficial Associations — by-law—construction.</p> <p>Where a by-law of a beneficial association provides that on the death of a member in good standing a certain death benefit- shall be paid to his relatives in a certain prescribed order, viz., 1. To the widow; 2. To the children, legitimate or legitimated, the adopted children of a member who dies in good standing leaving no widow are entitled to such death benefit.</p>

<p>Exceptions from Circuit Court, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Petition for Rehearing.</p>

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

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

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

<p>Appeal and Error — instructed verdict — failure of allegation and proof.</p> <p>A judgment on writ of error is affirmed where the jury were instructed to find for the defendant, an examination of the record shows that a fact material to plaintiff’s recovery was not alleged or proven, and nothing in the record shows that the error was cured.</p>

<p>Taxation of Costs.</p>

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

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

<p>Motion to Dismiss.</p>

<p>Wills — residuary legatee — annuity—charge.</p> <p>Where a will devises to respondent all of testator’s estate except two small legacies and directs that respondent pay to petitioner one hundred dollars monthly during her lifetime and makes the same a charge upon the estate, the transfer is to respondent who takes subject to the charge which is a lien on the estate.</p> <p>Taxation — inheritance tax — transfer.</p> <p>The inheritance tax under the statute is upon the transfer of property in contemplation of. death, so that when property is devised to one with a charge that he pay another a monthly sum, the inheritance tax is chargeable against the devisee and not to the annuitant.</p>

<p>Judgment — default.</p> <p>The determination or sentence by a court debarring the defendant from the right to answer is in the eyes of the law a judgment and is so recognized by section 2363 R. L.</p> <p>Statutes — mandatory.</p> <p>Mandatory statutes are imperative; they must be strictly pursued; otherwise the proceeding which is taken ostensibly by virtue thereof will be void.</p>

<p>Statutes.</p> <p>Act 197 of the Session Laws of 1917 extended to every registered voter of the Territory absent from the precinct of his residence on election day by reason of having been called • into the military service of his country, either by the governor or the president, the right to vote at one of the polling places provided for by section 2 of said act.</p> <p>Same — construction.</p> <p>Statutes which confer or extend the elective franchise should be liberally construed.</p>

<p>Error to Circuit Court, Second Circuit. Hon. L. L. Burr, Judge.</p>

<p>Schools and School Districts — teachers—corporal punishment.</p> <p>A school teacher has the right to inflict reasonable corporal punishment upon his pupil for such misbehavior as has a direct and immediate tendency to injure the school or to subvert the master’s authority but in so doing the master must exercise sound discretion and judgment and adapt the punishment to the nature of the offense and the character of the pupil.</p> <p>Same — same—same.</p> <p>The law, however, does not license the teacher to inflict corporal punishment at will, but, in the words of section 270 R. L. 1915, which is substantially the common law rule, the punishment must be necessary and reasonable.</p> <p>Same — same—same—malice.</p> <p>It is not necessary for the prosecution to prove malice on the part of the teacher where the punishment inflicted is clearly unnecessary or unreasonable but such malice will be inferred from the fact that unnecessary or unreasonable punishment was inflicted.</p> <p>Same — same—same—same.</p> <p>The teacher is not liable to criminal prosecution for assault where the punishment is not clearly unreasonable unless it appears that he bore malice against the pupil and whipped the latter to gratify his malice, ill will or" grudge or for the purpose of being revenged on him.</p>

<p>Criminal Law — instructions.</p> <p>An erroneous instruction, clearly prejudicial, cannot be cured by another instruction which correctly states the law but does not call the attention of the jury to the erroneous instruction.</p> <p>Same — same.</p> <p>The defendant in a criminal trial has the right to have the court instruct the jury in the law applicable to. his contention, if supported by substantial evidence, however weak, unsatisfactory or inconclusive it may appear to the court.</p> <p>Murder.</p> <p>Murder committed in the commission or attempt to commit a crime not punishable with death and not committed with extremé atrocity or cruelty is not, per se, murder in the first degree.</p>

<p>Appeal from Circuit Judge, First Circuit. Hon. W. H. Heen, Judge.</p>

<p>Pleading — effect of evidence on nature of action.</p> <p>Where the complaint sets up a case of damages for assault and battery and tbe defendant answers by general denial, but defendant, a police officer, offers evidence tending to justify bis action on tbe ground that such violence as be used was necessary in arresting plaintiff for a penal offense committed in bis presence and plaintiff offers evidence tending to show that no offense bad in fact been committed and that more force than was reasonably necessary to effect an arrest was used, held, that this did not change tbe case to one for false imprison'ment.</p> <p>Assault and Battery — liadility of peace officer in making arrest.</p> <p>A peace officer is not liable for injuries inflicted by him in tbe use of reasonably necessary force to preserve tbe peace and maintain order or to overcome resistance to bis authority; but is liable if unnecessary violence is used to accomplish tbe purpose or if be assaults a person without just excuse.</p> <p>Same — instructions.</p> <p>In an action for assault and battery it is not error to refuse requested instructions not applicable to such a case.</p>

<p>War — authority of Congress to fix prices of foods.</p> <p>Congress possesses authority under the war-power conferred by the Constitution of the United States to enact laws regulating the prices of food and other commodities which may be helpful to the nation while engaged in war.</p> <p>Same — same.</p> <p>This authority to legislate is conferred upon Congress by those constitutional provisions which grant to it power to declare war, to raise and support armies, etc., and which is known as the war-power of Congress.</p> <p>Same — states and territories.</p> <p>The foregoing power is not enjoyed by the states and territories.</p> <p>States and Teeeitobies — authority to control private property and to fix prices.</p> <p>The states and territories may regulate common carriers, innkeepers, warehousemen, etc., whenever they enjoy extraordinary legal privileges or constitute a monopoly.</p> <p>Same — same—police power.</p> <p>The police power is broad in its scope but it is subject to the just limitation that it extends only to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect or conserve the public health, morals or safety or the general welfare.</p> <p>Constitutional Law — limitation upon the authority of the state to interfere with the privileges of the individual.</p> <p>It is unlawful to interfere with the privileges of the individual to seek and obtain such compensation as he can for his private property where he neither asks nor receives from the sovereign power any special right or immunity not given to or possessed by every other citizen and where he has not devoted his property to any public use so that the same becomes impressed with a public interest within the meaning of the law.</p> <p>Same — same—territorial statutes regulating the price of food.</p> <p>A territorial statute creating a commission clothed with authority to fix the price or prices at which food or foods shall be sold within the Territory held unconstitutional.</p>

<p>Evidence — objections—motion to strike out testimony.</p> <p>One cannot take his chances of advantage by not objecting to questions which clearly call for improper evidence and if disappointed in the answer then move to strike out the testimony.</p> <p>Same — right of trial judge to ash questions.</p> <p>The trial judge should never assume the duties of counsel, but if at any time he becomes convinced that the witness has misunderstood the questions propounded by either counsel and as a result of such misunderstanding the import of his testimony is in doubt it is not only his privilege but his duty to ask such questions of the witness as are necessary to remove such doubt and fully develop the truth in the case.</p> <p>Same — same.</p> <p>The trial judge should not in the examination of a witness intimate any opinion upon the facts, assume the prisoner’s guilt, or use any expression calculated to prejudice the rights of either party.</p> <p>Same — same—leading questions.</p> <p>It is not a valid objection that the court in examining a witness has asked a leading question. Since the court may in its discretion allow leading questions it may in the proper exercise of its right to ask questions also ask leading questions.</p>

<p>Appeal and Error.</p> <p>Exceptions do not lie to this court from the refusal of the judge of the land court to frame issues of fact for submission to a jury.</p>

<p>Equity — appeal.</p> <p>In an equity suit by a wife against her husband for separate maintenance an order issued compelling the husband to support his wife pendente lite is appealable.</p> <p>Same — same.</p> <p>A provision inserted in such an order defining it as temporary and.subject to change or modification in the discretion of the judge does not convert it into an interlocutory order nor alter its status as final and appealable.</p> <p>Appeal — effect upon contempt proceedings — prohibition.</p> <p>The circuit judge is without jurisdiction to enforce such an order by contempt proceedings when an appeal has been taken and pending such an appeal a writ of prohibition will lie to prevent its enforcement by contempt proceedings.</p> <p>Same — summary proceedings — prohibition.</p> <p>The rule that the writ of prohibition will not be granted unless the question of jurisdiction has been unsuccessfully raised in the lower court does not apply to summary proceedings of a quasi criminal nature such as proceedings for contempt.</p>

<p>Motions to Dismiss.</p>

<p>Municipal Corporations — eminent domain.</p> <p>The exercise of the power of assessment for the improvement of an existing street is by virtue of the taxing power and not of the law of eminent domain.</p> <p>Same — same—constitutional law.</p> <p>The right to take private property for taxes is distinguished from the eminent domain and is not repugnant to the Fifth Amendment of the Federal Constitution.</p> <p>Same — same—same—“due process of law.”</p> <p>An assessment for local improvement based upon frontage is not in conflict with the “due process of law” clause of the Constitution.</p> <p>Same — same—same—same.</p> <p>A party is not deprived of his property without due process of law by the enforced collection of taxes merely, because they, in individual cases, impose unequal burdens.</p> <p>Same — frontage tax — special benefits.</p> <p>An ordinance providing that all the lots abutting upon the portion of the street to be improved shall be assessed in proportion as the frontage of each lot is to the frontage of all the lots in the district, does not contravene the law that assessments for local public improvement shall be in proportion to the benefit.</p> <p>Same — same—protest.</p> <p>The word “owners” in section 1795 R. L. 1915, providing that owners might protest against local improvements, held not to include tenants or lessees prior to the passage of Act 239 Session Laws 1917.</p> <p>Same — same—limitation of actions.</p> <p>The legislature has power to prescribe the time within which actions or proceedings at law or in equity to review, question the validity or enjoin the enforcement of any improvement ordinance shall be instituted.</p> <p>Same — same—same.</p> <p>The thirty-day limitation within which actions or proceedings to review, question or enjoin the enforcement of a local improvement ordinance shall be brought commences to run from the last day of the publication of the assessment ordinance.</p>

<p>Wills — attempt to confer jurisdiction.</p> <p>Where a testator in his will attempts to confer jurisdiction upon a judge in his judicial capacity,, where the judge as a matter of law has jurisdiction in the premises, the judge acts by virtue of the law conferring jurisdiction upon him and not under the authority of the provisions of the will, and in case jurisdiction is subsequently taken from such judge and is transferred to another judge the power to act ipso facto passes to such other judge.</p> <p>Trusts — appointment of trustee.</p> <p>The will of C, dated in 1889 and probated in 1891, named two trustees to execute the trust created and provided that whenever the beneficiaries of the trust or a majority of them shall apply to a justice of the supreme court a third trustee shall he appointed. Held, that by the Judiciary Act of 1892 all original equity jurisdiction having been taken from the several justices of the supreme court and reposed in the circuit judges of the islands, the power to appoint a third trustee is now exercisable by a circuit judge and not by a justice of the supreme court.</p>

<p>Contracts — officers—public policy.</p> <p>A contract entered into by a public officer, the tendency of which is to induce such officer to become remiss in his duty to the public, is contrary to public policy and void.</p> <p>Same — public policy.</p> <p>Where an express contract for services is void as against public policy, neither recovery thereon nor for such services on a quantum meruit can be had.</p>

<p>•Boundaries — jurisdiction of commissioner.</p> <p>A boundary commissioner is authorized to decide and certify boundaries only upon the petition of an owner and his jurisdiction exists only in cases where the petitioner’s ownership of the land claimed in his petition is not contested.</p> <p>Same — same.</p> <p>In a proceeding under chapter 31 R. L. 1915 by an alleged owner of land to have the boundaries thereof decided and certified by the boundary commissioner and a contestant files a claim asserting title in himself to a definite portion of the land claimed in the petition the boundary commissioner is without jurisdiction to proceed in the matter and should dismiss the petition.</p> <p>Same — same.</p> <p>Where the dispute as to ownership arises solely by reason of adverse claims as to the location of the common boundary of two adjoining lands a proper case for the commissioner of boundaries is presented.</p>

<p>Pleading — next friend.</p> <p>Where a suit is brought by a proehein ami or next friend the petition or declaration should show upon its face that the plaintiff is laboring under some legal disability which prevents him from instituting and managing the suit himself.</p> <p>Same — fraud.</p> <p>On pleading fraud either at law or in equity the specific facts constituting the fraud must be stated in the declaration or petition, not conclusions.</p>

<p>Indictment and Information — charging in the words of the statute.</p> <p>Where a statute fully defines the offense in clear and unmistakable terms a charge in the language of the statute is sufficient, but we do not find that the statute of gross cheat, that is, section 3988 R. L. 1915, contains those descriptive elements which would bring it within the category of the statutes just mentioned.</p> <p>Same — false pretenses.</p> <p>Where the defendant is charged with false pretenses the indictment must not only set out the pretenses but must set them out with such particularity as to enable the court to determine whether they are such pretenses as come within the statute and as to apprise the accused of the charge against him.</p> <p>Same — same.</p> <p>An indictment charging that the defendant “did designedly, by false pretenses, and with intent to defraud, obtain from others, to-wit, Joe Boteilho, John de Costa, Antone S. Madeira and Joe Antone Rodrigues, money of the amount and value to-wit twenty-five hundred dollars” is confined to a bare repetition of the words of the statute and is demurrable.</p>

<p>Evidence — check.</p> <p>The admission of the indorsement of the payee on a check in evidence, without proof of its authenticity, is error.</p> <p>Same — false pretenses.</p> <p>On a trial for obtaining money by false pretenses the indorsement on a check purporting to have been written by defendant is not admissible against him until it is shown to have been in his handwriting.</p>

<p>Wiles — construction—attorney's fees.</p> <p>In cases involving the construction of a will the general rule is that where the testator has expressed his intention so ambiguously as to create a difficulty which makes it necessary to go into a court of chancery to get a construction of the will and to remove the difficulty, the costs of litigation, including reasonable attorneys’ fees to all necessary parties, must be borne by the estate and the general residue is the primary fund for the payment of such costs.</p> <p>Same — same—same.</p> <p>A contest between an annuitant and a residuary legatee as to which one is liable for the payment of an inheritance tax, to which a construction of the will is incidental, is not such a case as warrants the allowance of attorney’s fees out of the estate.</p>

<p>Error to Circuit Court, Third Circuit. Hon. J. W, Thompson, Judge.</p>

<p>Bastards — presence of child in court.</p> <p>, It is not error to permit the child whose paternity is the subject of inquiry to remain in the court room during the trial and to be held on the mother’s lap while she is giving her evidence.</p> <p>Trial — instructions.</p> <p>A requested instruction not applicable to the facts of the case is properly refused.</p> <p>Same — same.</p> <p>A requested instruction which has been covered by other instructions given in the case is properly refused.</p> <p>Bastards — judgment—amount, how determined.</p> <p>The facts upon which the court determines the amount of the judgment to enter against one who has been found to be the father of a bastard child should be judicially ascertained and disclosed by the record.</p> <p>Same — same—effect of failure of court to ascertain financial standing of defendant.</p> <p>When no error is found in the proceedings before the jury, but the court fails to ascertain the financial standing, etc., of the defendant prior to the entry of judgment fixing the amount defendant shall pay for the support of the illegitimate child, the judgment in that respect will be reversed, but so much thereof as is based upon the verdict will not be disturbed.</p>

<p>Error to Circuit Court, Third Circuit. Hon. J. W. Thompson, Judge.</p>

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

<p>Appeal and Error — verdict based upon weight of evidence.</p> <p>This court will not on error reverse a verdict where the record shows that it was based on the credibility of witnesses or the weight of the evidence.</p> <p>Courts — jtirisdiction to alter judgment.</p> <p>After a court of limited jurisdiction has entered a final judgment in the case the power of the court to alter the judgment has ceased and any attempt to do so would be extrajudicial and without force.</p> <p>Same — power to correct record of proceedings.</p> <p>A district magistrate has authority to correct the minutes of proceedings of his court where the same are incorrect before certifying the record to the appellate court.</p> <p>Same — district magistrates — damages.</p> <p>In a case where it does not appear that the magistrate attempted to exercise authority where he had none or attempted to assume jurisdiction where none existed he cannot be required to respond to damages for his acts.</p>

<p>Exceptions prom Circuit Court, First Circuit. Hon. S. B. Kemp, Judge.</p>

<p>Appeal and Error — joinder of co-parties.</p> <p>Where a judgment or decree is several and the interests represented by each of the co-parties are separate and distinct from and not adverse to. those of the others any party may sue out a writ of error to protect his own interests without joining his co-parties.</p> <p>Juries — challenge to array — trial and determination.</p> <p>If the facts alleged in the challenge to the array of jurors are sufficient, if true, to sustain the challenge, the court proceeds to try the truth of the facts alleged, but if the facts alleged present no legal grounds of objection to the jury they may be summarily overruled.</p> <p>Statutes — mandatory—jury commissioners to he of opposite politics.</p> <p>A statute which provides that jury commissioners, among other qualifications, shall be of opposite politics held to he mandatory and a challenge to an array of jurors drawn by commissioners alleged to belong to the same political party to be sufficient, if true, to invalidate the jury.</p>

<p>Seduction — promise of marriage — corroboration.</p> <p>In a prosecution for the offense of seduction under section 3902 R. L. 1915 tbe testimony of tbe female of tbe promise of marriage, alleged to bave been made to ber by tbe defendant prior to tbe sexual act, must be corroborated by evidence either direct or circumstantial.</p> <p>Same — same—same—presumption.</p> <p>The testimony of the prosecutrix to the effect that just prior to the act of sexual intercourse on the 5th day of May, 1917, the defendant had promised to marry her is not corroborated by other evidence that in July, 1917, the defendant declared his intention to be married the following Christmas. Presumptions do not run backward; they are not retroactive.</p>

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

<p>Equity — pleading.</p> <p>A married woman cannot sue her husband in equity without the interposition of a next friend.</p>

<p>Judgment — power to set aside after term.</p> <p>The rule that a court cannot set aside or alter a final judgment after the expiration of the term at which it was entered is modified by statute (Sec. 2442 R. L. 1915) to the extent that it may set aside its judgment provided a motion for a new trial is filed within ten days without regard to whether that period ends before or after the expiration of the term.</p> <p>Appeal and Error — writ of error — exception — rule where both are attempted.</p> <p>Where a writ of error which sought a review of certain rulings was dismissed in this court without being considered on its merits a review of the same rulings may be had by exceptions subsequently perfected.</p> <p>Same — nunc pro tunc order.</p> <p>Notwithstanding an order is made nunc pro tunc the time within which a bill of exceptions may be presented to the judge for allowance runs from the date the order was actually made.</p> <p>Trial — prima facie showing.</p> <p>Where plaintiffs made out a prima facie case and the defendants offered no evidence and made no effort to controvert the evidence of the plaintiffs the verdict should be for plaintiffs.</p>

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

<p>Appeal from Circuit Judge, Fifth Circuit. Hon. L. A. Dickey, Judge.</p>

<p>Stipulations.</p> <p>Tbe responsibility devolving upon tbis court to require tbe observance of its rules is secondary to its duty to maintain tbe integrity of stipulations entered into between counsel and approved by and filed witb tbe court.</p>

<p>Equity — jurisdiction to restrain destruction oj property.</p> <p>An owner in- possession of property may invoke the process of a court of equity to restrain parties who have repeatedly trespassed upon his property and caused destruction of a part thereof and who threaten future trespasses and acts of destruction.</p>

<p>Motion to Quash Weit of Eeeoe.</p>

<p>Practice — appeals.</p> <p>This court will not consider an appeal where the record transmitted to it is so incomplete as to render its judgment thereon conjectural.</p>

<p>Motion to Dismiss.</p>

<p>Decision — deed not in evidence, not considered.</p> <p>Where the court, trial by jury being waived, in considering evidence adduced refers to certain discrepancies between the description of land contained in a deed (not in evidence) and in the complaint, but it appearing that the reference to the discrepancies was a mere cursory remark and that the court in arriving at its decision did not take the deed into consideration, such reference to the discrepancies mentioned is not prejudicial error.</p> <p>Evidence — supports findings and decision.</p> <p>There was evidence in this case to sustain the findings and decision of the trial court.</p>

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

<p>Pleading — actions—tenants in common.</p> <p>One tenant in common cannot maintain an action at law against bis cotenant in respect of tbe common property unless be bas been disseized or ousted therefrom.</p>

<p>Exceptions From Circuit 'Court, First Circuit. Hon. W. H. Heen, Judge.</p>

<p>Petition for Writ of Error and Supersedeas Returnable to the United States Circuit Court of Appeals for the Ninth Circuit.</p>

<p>Evidence — judge’s right to call witnesses.</p> <p>A judge may call witnesses to supplement the evidence produced by the parties when he believes this necessary.</p> <p>Same — experts, qualification.</p> <p>The question whether a witness is qualified as an expert is largely within the discretion of the trial judge.</p>

<p>Specific Performance — contract for sale of chattel articles.</p> <p>Equity will not in general decree tbe specific performance of contracts concerning chattels because their money value recovered as damages will enable the party to purchase others in the market of like kind and quality.</p> <p>Same — same.</p> <p>Where, however, particular chattels have some special value to the owner, above any pecuniary estimate, and where they are unique^ rare and incapable of being reproduced. by money damages equity will decree a specific delivery of them to their owner and the specific performance of contracts concerning them.</p> <p>Same — same.</p> <p>And where the chattels are such that they are not obtainable in the market or can only be obtained at great expense and inconvenience and failure to obtain them causes a loss which could not be adequately compensated in an action at law a court of equity will decree specific performance.</p> <p>Equity — jurisdiction—multiplicity of suits.</p> <p>The mere fact that there exists divers causes of action which may be the foundation of as many different suits between the parties is in itself not sufficient ground to confer jurisdiction upon a court of equity.</p> <p>Same — same—same.</p> <p>In the case at bar the complainants might at their own option bring successive suits against respondents as the breaches of the contract occur or they might remain quiescent until the expiration of the contract and then bring one action at law for the recovery of the entire damages sustained by them. This being a matter entirely within their own control the reason for the interference of a court of equity fails.</p> <p>Samé — mutuality of remedy.</p> <p>A contract to be enforcible in equity must be mutual but when payment under the contract is to be made in money mutuality of remedy is not the test for the right to the remedy. The mutuality required is that which is necessary for creating a contract enforcible on both sides in some manner but not necessarily en-forcible on both sides by specific performance.</p> <p>Same — same.</p> <p>The present contract is bilateral and not unilateral. It contains mutual executory provisions, that is to say, both parties have bound themselves by reciprocal obligations and this it would seem meets the modern rule of mutuality.</p>

<p>Appeal From Circuit Judge, First Circuit. Hon.- J. T. DeBolt, Judge.</p>

<p>MOTION TO DISMISS.</p>

<p>Exceptions from Circuit Court, First Circuit. Hon. W. H. Heen, Judge.</p>

<p>Deeds — construction.</p> <p>In the construction of all deeds and grants the intention of the grantor, when ascertained, should be given full effect when not contrary to law.</p> <p>Same — same.</p> <p>The construction placed upon the instrument by the parties themselves should govern, especially after a time long enough to create prescriptive rights thereunder has elapsed.</p> <p>Equity- — practice—laches.</p> <p>Where a cause of action has accrued for over twenty years and the petitioner has remained dormant during all that time and does not set forth any excuse or justification for her delay she is guilty of such laches as will warrant a court of equity in refusing her relief.</p>

<p>Exceptions from Circuit Court, First Circuit. Hon. W. H. Heen, Judge.</p>

<p>Exceptions From Circuit Court, First Circuit. Hon. W. S. Edings, Judge.</p>

<p>Petition fob. Rehearing.</p>

<p>Appeal and Error — costs necessary to be paid as a prerequisite to appeal.</p> <p>Items of expense incurred in the course of litigation not properly termed costs of court are not required to be paid as a prerequisite to the right of appeal.</p> <p>Same — effect of service of notice of appeal on attorneys not of record.</p> <p>Notice of appeal to attorneys not shown to be of record for a party in the particular proceeding involved is not notice to that party, although they may at the time be attorneys of record for the said party in a proceeding pending in another court.</p> <p>Same — adverse party defined.</p> <p>In determining whether or not one is an adverse party (and therefore entitled to notice of appeal) the supreme test is the possession of some' substantial interest adverse to the interest of appellant in the order or decree appealed from.</p>

<p>Exceptions From Circuit Court, Second Circuit. Hon. L. L. Burr, Judge.</p>

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

<p>Statutes — section 168 B. L. 1915 construed.</p> <p>Section 168 R. L. 1915 prohibits an officer of a county from making a sale of goods or property in which he is pecuniarily interested "to the county even though he take no official action in behalf of the county in consummating such sale. An indictment under said section which charges the defendant with having, in behalf of a copartnership of which he was a member and in which he was pecuniarily interested, made an agreement with the board of supervisors, of which he was a member, for the sale to the county by said copartnership of goods, wares, etc., without charging that he as such official participated- in the making of said agreement, is good as against a general demurrer.</p> <p>Criminal Law — instructions.</p> <p>An instruction which authorizes the jury to convict without having found that the crime was committed by the defendant in the manner alleged in the indictment is prejudicial error.</p> <p>Jury — disagreement—discharge discretionary with trial court.</p> <p>The action of the trial court in discharging a jury and declaring a mistrial will not be reviewed by this court except on a clear showing of abuse of the discretion with which the judge is vested.</p>

<p>Deeds — partition.</p> <p>Tbe fact that a party wbo has no interest in the property joins in a partition deed does not vest any interest in him although the deed purports so to do, there being no consideration for the grant to him.</p> <p>Evidence — common source of title.</p> <p>The fact that a plaintiff offers in evidence a conveyance which he designates as a common source of title does not preclude the defendant from contradicting such evidence and denying that any common source of title exists.</p>

<p>Conspiracy — indictment—allegations—means and object of conspiracy.</p> <p>Where the indictment charges a conspiracy to do an unlawful act it is unnecessary to set out the means by which the act was to be accomplished.</p> <p>Same — same—same—same.</p> <p>Thu reverse is true where the object of the conspiracy is not necessarily unlawful and the criminality of the conspiracy depends upon the unlawfulness of the means contemplated to accomplish the object. In such a case the rule is that the indictment must set out the means that the court may see that there is a criminal conspiracy.</p> <p>Trial — evidence—order of proof.</p> <p>The order of proof is a matter largely within the discretion of the trial court. Especially is this true in a prosecution for conspiracy where the facts are ordinarily complicated and involved.</p>

<p>Appeal and Error — service of assignments of error.</p> <p>Where a statute prescribes that service of process upon one of several joint makers of a promissory note shall be service upon all, the same method of service of the assignments of error is sufficient the same being constructive service upon all under the statute.</p>

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

<p>Specific Performance — contract for sale of chattels.</p> <p>Equity will not in general decree tbe specific performance of contracts concerning chattels because their money value recovered as damages will enable the party to purchase others in the market of like kind and quality.</p> <p>Same — same.</p> <p>But where the chattels are such that they are not obtainable in the market or can only be obtained at great expense and inconvenience and failure to obtain them causes a loss which cannot be adequately compensated in an action at law a court of equity will decree specific performance.</p> <p>Contracts — damages for loss of profits.</p> <p>It is a rule that while under some circumstances a party has a right to recover loss of profits as a part of the damages for a breach of contract it is only where the profits are such as would have accrued and grown out of the contract itself as the direct and immediate result of its fulfillment.</p> <p>Same — same.</p> <p>But if the profits are such as would have been realized by the party from other independent and collateral undertakings, although entered into in consequence and on the faith of the principal contract, they are too uncertain, remote and speculative to be taken into consideration as a part of the damages occasioned by the breach of the contract.</p> <p>Same — measure of damages — resale.</p> <p>Where a vendor fails to comply with his contract the general rule for the measure of damages is the difference between the contract price and the market price of the commodity at the time of the breach, but if the contract of purchase is made with a view of a known resale already contracted or any known special use the damages which are contemplated to result from the vendor’s breach are those which would naturally result on the basis of the contract for resale or other special use known to the vendor when the contract was made.</p> <p>Same — same—same.</p> <p>The contemplation of damages will include such as ordinarily arise according to the intrinsic nature of the contract and the surrounding facts and circumstances made known to the parties at the time the contract was entered into.</p> <p>Same — same—same.</p> <p>. If the vendor has notice that his vendee has contracted to resell the article he will be held liable for loss of profits of such resale if he fails to fulfill his contract.</p> <p>Same — same—same.</p> <p>But where long after the contract was entered into the vendee contracted to resell the article he could not recover as damages his contemplated profits; his damages would be limited to the difference between the contract price with the vendor and the market price of the commodity at the time of the breach of the contract.</p> <p>Same — construction.</p> <p>The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles and this intention will be gathered not from particular words and phrases but from the whole context of the agreement.</p> <p>Same — reasonableness of construction.</p> <p>The rule of reasonableness of construction is that where the language of the contract is. contradictory, obscure or ambiguous, or where its meaning is doubtful so that it is susceptible of two constructions, one of which makes it fair, customary and such as prudent men would naturally execute, while the other makes it inequitable, unusual and such as reasonable men would not be likely to enter into, the interpretation which makes it a rational and probable agreement must be preferred.</p>