Volume 25 — Hawaii Reports

<p>Mandamus — ministerial official duty — performance compelled by mandamus.</p> <p>Where a plain official duty, purely ministerial, requiring the exercise of no discretion, is to be performed and performance is refused, mandamus will lie upon ttie application of the party aggrieved to compel its performance.</p> <p>Elections — duty of canvassing officer ministerial.</p> <p>In the matter of canvassing the returns and issuing certificates of election the duty of the canvassing officer is purely ministerial.</p> <p>Same — canvassing officer has no right to inquire into eligibility.</p> <p>The canvassing officer has no right to go behind the returns and inquire into the eligibility of a candidate but must issue a certificate of election to the one who on the face of the returns has the highest number of votes.</p> <p>Same — certificate of — mandamus—eligibility not an issue.</p> <p>In a mandamus proceeding to compel the canvassing officer to issue a certificate of election to the one who on the face of the returns has the highest number of votes the petitioner’s eligibility to be elected is not an issue.</p> <p>Same — same—same—issuance of certificate to another no defense.</p> <p>The wrongful issuance of a certificate to a candidate not receiving the highest vote is not a defense in a mandamus proceeding by the party rightfully entitled thereto.</p>

<p>Appeal from Circuit Judge, First Circuit. Hon. W. S. Edings, Judge.</p>

<p>Elections — mandamus to compel issuance of certificate — defense.</p> <p>It is no defense to a mandamus proceeding to compel the canvassing officer to issue and deliver to petitioner a certificate of his election that one other than the petitioner has taken possession of and is holding the office for which petitioner sought a certificate of election.</p>

<p>Dower.</p> <p>Under Sec. 2977 R. L. 1915 tbe widow is entitled to one-third part of the movable effects in possession or reducible to possession of her husband at the time of his death after the payment of his just debts.</p> <p>Same.</p> <p>The term “movable effects in possession or reducible to pos: session” is less comprehensive than the phrase “personal property.”</p> <p>Same — life insurance.</p> <p>The proceeds of policies of insurance upon the life of the husband which were made payable to his executors, administrators or assigns and collected by them subsequently to his death were not his movable effects in possession or reducible to possession at the time of his death and the widow possesses no dower right therein.</p>

<p>Assignments — public officers — salaries.</p> <p>An assignment by a public officer of his unearned or anticipated salary is void as being against public policy.</p> <p>Compromise and Settlement.</p> <p>The compromise of a suit neither admits the validity of the claim urged nor ascertains any amount as being due and amounts to no more than saying that so much is paid to be rid of the controversy.</p>

Motion to Dismiss Appeal. On May 31, 1919, T. Brandt, of Waimea, County of Kauai, made application by petition to the judge of the circuit court of the fifth judicial circuit for a writ of mandamus to compel the appellant, J. Mahiai Kaneakua, county clerk of the County of Kauai, Territory of HaAvaii, to cause the name of said T. Brandt to he, as a candidate for the office of supeiwisor for the district of Waimea, printed on the official ballots for the county election to be…

<p>Petition for Appeal to the United States Circuit Court of Appeals for the Ninth Circuit.</p>

<p>Indictment and Information — motion to quash indictment and a special plea in dar distinguished.</p> <p>A motion to quash an indictment is addressed to the discretion of the court and is usually based upon matters of record. A special plea in bar presents some matter extrinsic of the record which completely bars the proceeding and in regard to which the court may exercise no discretion but is bound to sustain the plea if it be well taken.</p> <p>Appeal and Error.</p> <p>The Territory is not entitled to a writ of error to review a judgment sustaining a motion to quash an indictment.</p>

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

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

<p>Municipal Corporations — contracts.</p> <p>Where there is a definite fund on hand and the receipt of additional funds is contemplated it is not illegal for the city and county authorities to let a contract obligating the City and County to the extent of the funds on hand and reserving the option to require additional work should the funds therefor be provided before the expiration of the period specified for the completion of the contract..</p> <p>Same — same—awarding contract for public improvement.</p> <p>In the absence of any allegation or showing of fraud or collusion on the part of the awarding authorities their decision in determining who is the lowest bidder is conclusive, the presumption being that the authorities acted faithfully and honestly and for the public good after due and full investigation of the matter.</p> <p>Same — same—calling for tenders — modification of specifications.</p> <p>Plans and specifications for work to be done by contract requiring competitive bidding therefor cannot be changed after the call for bids has been published without readvertising, but the unauthorized attempt of the city and county engineer to require supplemental bids without advertising, after publication of a call for tenders, cannot affect the plans and specifications as theretofore adopted and approved by the proper authorities and cannot affect the validity of the bids submitted nor of the contract entered into with the successful bidder.</p> <p>Same — same—time of completion of work.</p> <p>Where it is provided in the specifications that “any shortening or lengthening of the road made necessary by lack or increase of funds shall decrease or increase the period allowed for construction proportionately as may be determined by the board” and the only necessity of curtailing the work that could arise would be from the lack of funds the reasonable construction of the language quoted is that the two years period specified for the completion of the entire work should be reduced in the same proportion that . the money available bears to the amount of the bid.</p> <p>Same — same—method of handling excavations.</p> <p>The fact that unit prices are cailed for on the method of handling excavations instead of the various character of the materials to be excavated does not vitiate the specifications nor the contract based, thereon.</p>

<p>Appeal aud Error — Mil of exceptions — extension of time.</p> <p>An order extending the time for presenting and serving a bill of exceptions twenty days from and after the filing of the transcript of evidence is not void for uncertainty.</p> <p>Same — same—questions previously decided.</p> <p>When a bill of exceptions brings up only questions which have been decided on a former appeal the exceptions will be dismissed, but questions arising on necessary proceedings subsequent to the mandate and not covered by the former appeal are a proper subject of exceptions.</p>

<p>Liens — common law artisan’s lien — effect of voluntary delivery to owner.</p> <p>When one entitled to a lien upon a chattel for its repair voluntarily delivers such chattel to its owner the lien is extinguished.</p> <p>Same — same—resumption of possession does not revest the lien.</p> <p>When the lien has been extinguished by delivery of the chattel the lien does not revest upon possession being restored.</p> <p>Chattel Mortgages — liability of purchaser of mortgaged chattel without consent of mortgagee.</p> <p>One who converts to his own use a chattel subject to a duly recorded chattel mortgage without the consent of the- mortgagee is liable to the mortgagee for its value.</p>

<p>Appeal from Tax Appeal Court, Fifth Circuit.</p>

<p>Appeals prom Circuit Judge, First Circuit. Hon. W. H. Heen, Judge.</p>

<p>Reserved Question from Circuit Judge, First Circuit. Hon. J. T. DeBout, Judge.</p>

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

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

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

<p>Motion to Strike Brief From The Files.</p>

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

<p>Bankruptcy — jurisdiction of courts of bankruptcy.</p> <p>District courts of tbe United States as courts of bankruptcy have jurisdiction to determine tbe validity of a mortgage executed by tbe bankrupt whether the alleged invalidity is due to provisions of the bankruptcy act, the common law or statutory enactment.</p> <p>Same — same—effect of adjudication by bankruptcy court.</p> <p>Where the petitioning creditors in an involuntary bankruptcy proceeding elect to litigate in the bankruptcy court the validity of a mortgage given by the bankrupt neither they nor the trustee who represents them will again be heard upon the same issue in another court.</p>

<p>Corporations — bonds.</p> <p>A corporate bond payable to bearer and secured by a mortgage trust deed is a negotiable instrument.</p> <p>Negotiable Instruments.</p> <p>A corporate bond payable to bearer and secured by ?. mortgage trust deed is a negotiable instrument.</p> <p>Same — theft—rights of true owner.</p> <p>A bona fide holder for value of a lost or stolen negotiable bond taken in the usual course of business acquires a good title thereto even as against him from whom it was stolen.</p>

<p>.Error to Circuit Court, Fourth Circuit. Hon. C. H Quinn, Judge.</p>

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

<p>Motion for Suit Money, Counsel Fees and Temporary Alimony Pending Appeal.</p>

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

<p>Landlord and Tenant — leases—covenants.</p> <p>A covenant in a lease tbat tbe lessee will during tbe term pay all taxes, water rates and assessments of every description which. , may be payable in respect of said premises to whomsoever levied or assessed is an obligation to pay assessments for street improvements even though such assessments are levied under an ordinance passed subsequent to the execution of the lease.</p>

<p>Costs — equity cases — on appeal.</p> <p>Sec. 2548 R. L. 1915, which provides that “If the defendant against whom judgment is rendered appeal and the amount recovered in the court below be reduced one-fifth or more costs shall he awarded to the appellant,” governs the allowing and taxing of costs on appeal in equity cases, and where the decree appealed from is reduced one-fifth or more the appellant is entitled to his costs of appeal.</p>

<p>Contracts — modification—requisites of modifying agreement.</p> <p>It is competent for tbe parties to a simple contract in writing to modify it or to vary or qualify its terms by oral agreement and thus make it a new one, but tbe new agreement must bave all tbe requisites of a valid or enforceable agreement or it will not be binding. While no particular form is required mere indefinite expressions' cannot constitute a modification.</p>

<p>Pleading and Practice — amendments.</p> <p>An attempt to change the nature of the action from one in contract to one in tort or vice versa is properly not an amendment but a substitution of a cause of action different in nature and substance from that originally stated and is unauthorized hy the laws of this Territory.</p>

<p>Specific Performance.</p> <p>Specific performance will be decreed of a contract for tbe sale of land when there does not appear to have been any unfairness, injustice or inequality such as to require a court of equity to refuse its aid and the consideration is not grossly inadequate.</p> <p>Same.</p> <p>One who purchases land with knowledge of a contract of sale thereon is bound by all of the equities enforceable against his grantor as a party to said contract.</p>

<p>Wills — testamentary capacity — presumption_ of law — burden of proof.</p> <p>Tbe presumption of law is in favor of testamentary capacity and be wbo insists on tbe contrary bas tbe burden of proof, except where insanity in tbe testator bas been shown to exist at a time prior to tbe execution of tbe will in which event tbe proponent must show that it was executed at a lucid interval.</p>

<p>Abatement and Revival — grounds of abatement — another action pending.</p> <p>If a suit is commenced while a prior suit is pending in the same court for the same cause between the same parties the pendency of the prior suit is a good plea in abatement unless a dismissal, discontinuance or other termination of the first suit is had before the plea of the pendency of such suit is filed in the second suit.</p> <p>Dismissal and Nonsuit — voluntary termination — necessity of leave of court.</p> <p>A formal order or judgment of the court is unnecessary to enable a plaintiff to discontinue his suit before trial but the consent of the court, either express or implied, is necessary.</p>

<p>Exceptions From Circuit Court First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Criminal Law — evidence—exhibits.</p> <p>In a trial of two defendants indicted jointly of the crime of larceny of one red colored steer it appeared in evidence that certain butchers’ tools, some of which were identified as having recently been in possession of one of the defendants, were found in close proximity to where the steer was found tied; that both defendants were seen in close proximity to the tied steer prior to the finding of the tools; that a dog identified as belonging to one of the defendants was baying the steer when first seen and the next morning was lying on the bundle of tools. Held, that under these circumstances it was not error to admit the said tools as exhibits in the case.</p> <p>Trial — instructions.</p> <p>Where the court has given an instruction sufficiently covering the points covered by a requested instruction it is not error to refuse the same although in itself correct.</p> <p>Same — same—larceny—ownership.</p> <p>Where an indictment for larceny alleges ownership of the steer alleged to have been stolen in A it is necessary to prove that fact as alleged to authorize a conviction and an instruction which authorizes a conviction without proof of ownership as alleged is error.</p> <p>Same — same—same—felonious intent.</p> <p>Under our statute defining larceny the felonious taking required is a taking with the intent to deprive the owner of the thing taken and to appropriate it to the use of the one taking and an instruction which authorizes a conviction, if the taking was with the mere intent to deprive the owner of the possession of the thing and without any intention of appropriating it to the use of the one taking, is error.</p>

<p>Error to Circuit Court, First Circuit. Hon. C. S. Franklin, Judge. •</p>

<p>Pleading — action to quiet title — cross complaint — sufficiency of.</p> <p>In an action to quiet title under the statute even if the defendant may file a cross complaint against his codefendants which is dofibtful a pleading of a defendant which sets up his title but fails to . ask affirmative .relief against his codefendants can not be regarded as a cross complaint.</p> <p>Evidence — stipulation—effect of stipulation.</p> <p>When parties to an action stipulate certain facts to be true and further stipulate that certain witnesses if called would testify to other facts, both the facts stipulated to be true and the facts which it is stipulated the witnesses would testify to if called are before the court as evidence when the stipulation is filed.</p> <p>Dismissal and Nonsuit — action to quiet title — failure of plaintiff to prove title.</p> <p>In an action .-to quiet title, under the statute it is incumbent upon the plaintiff to prove a title in or to the land in dispute and' if he fails to do so it will be unnecessary' for the defendant to make any showing.</p> <p>Same — same—same.</p> <p>The plaintiff having failed to prove the title in or to the land in dispute, there being nothing to authorize a litigation, of the title between codefendants, the only judgment which the court was authorized to render was to nonsuit the plaintiff.</p>

<p>Landlord and Tenant — covenants—construction.</p> <p>Covenants in a lease oí land, upon the breach of which a forfeiture is claimed, must be strictly construed.</p> <p>Same — same—same.</p> <p>A lease provided that the acceptance of rent by the lessor should not be deemed to be a waiver by it of any breach by the lessee of any covenant therein contained. After a breach of covenants by the lessee known to the lessor the lessor accepted rent. Held that this provision of the lease prevented the acceptance of rent from being a waiver of the breach of covenant but did not prevent such acceptance from being a waiver of the right to declare a forfeiture for such breach.</p> <p>Same — same—samé.</p> <p>A lease provided that the lessee will permit the lessor at all seasonable times to enter the leased premises and examine the state of repair and condition thereof and will repair and make good all defects of which notice shall be given within thirty days after the giving of such notice. Held that in the absence of such notice and a failure for thirty days thereafter to make repairs and remedy defects in the condition of the premises no right to declare a forfeiture for violation of the covenants to make repairs and keep the premises in a sanitary condition had been shown.</p> <p>Trial — conduct of trial — view and inspection.</p> <p>In the trial of a case, jury waived, involving the question of whether or not a covenant to repair and keep in a sanitary condition had been violated it appeared that the premises at the time of the trial were in practically the same state of repair and sanitary condition as they were when the forfeiture was declared, held not error for the trial judge to view and inspect the premises.</p>

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

<p>Ejectment — tenancy in common — judgment.</p> <p>The rule obtaining in this jurisdiction is that a plaintiff who has been ousted may in an action in ejectment have judgment to the extent of the title proved by him as against his cotenant in possession.</p> <p>Equity — partition—trial of title.</p> <p>Before a court of equity will assume jurisdiction in a suit for partition the legal title of the property must first be set at rest.</p>

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

<p>Cross-Appeals prom Tax Appeal Court Fourth Circuit.</p> <p>Appeals From Tax Appeal Court Fourth Circuit.</p> <p>Cross-Appeals prom Tax Appeal Court Third Circuit.</p>

<p>Petition for Rehearing.</p>

<p>Reserved Questions from Circuit Court Fourth Circuit. Hon. O. K. Quinn, Judge.</p>

<p>Eehearing of Motion to Dismiss.</p>

<p>Seduction — evidence.</p> <p>In a case in which, the defendant is charged with the crime of seduction it is not error to permit the prosecutrix to testify that she became pregnant as the result of- the intercourse with the defendant and that she thereafter gave birth to a child, of which the defendant is the father.</p> <p>Same — same—leading questions.</p> <p>Leading questions are permissible to arrive at facts when ignorance or modesty prevents a full answer to a general interrogatory.</p> <p>Same — same—letters written by defendant.</p> <p>When the prosecutrix in a seduction case produces letters which she claims to have received by mail from the defendant and testifies that she is familiar with defendant’s handwriting and that said letters are in his handwriting, the letters are admissible in evidence without any further evidence to connect the defendant with the writing.</p> <p>Same — same—same—corroboration.</p> <p>Letters identified only by prosecutrix may be considered as corroborative of her testimony on the issues requiring corroboration, since her testimony need be corroborated only as to the sexual intercourse and the promise of marriage.</p> <p>Same — corroboration.</p> <p>Whether in a given case there was any corroboration of .the testimony of the prosecutrix is a question of law.</p> <p>Same — same—instruction to the jury.</p> <p>Under a statute which provides in effect that the court may charge the jury whether there is or is not evidence (indicating the evidence) tending to establish or rebut any specific fact involved in the case it is not error for the court to instruct the jury “that the court has ruled that there is some evidence in corroboration of the testimony of the prosecutrix in this case but the weight and sufficiency of that'testimony is for the jury to determine” without indicating to the jury what evidence the court considered corroborative of the prosecutrix’ testimony.</p>

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

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

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

<p>Municipal Corporations — debt limit.</p> <p>The Organic Act provides in effect that the legislature may authorize loans by any municipal corporation for certain specified purposes but provides that the total of such indebtedness incurred in any one year shall not exceed 1% of the assessed value of its property. Held, that this is a limitation upon the power of the legislature to authorize the incurring of indebtedness as well as upon the municipality to incur it.</p> <p>Same — same.</p> <p>An act of the legislature transferring a water and sewer system to a city and requiring it to devote the revenues derived therefrom to the maintenance of said systems and the payment of interest and sinking fund on bonds issued by the Territory for the building of said systems and in the event of a deficiency in said revenue to make up said deficiency out of the general revenue of said city does not authorize nor require said city to incur an indebtedness.</p> <p>Attorney and Client — county attorney — appearance for county officer.</p> <p>A county attorney being elected by the people and his duties prescribed by statute is not subject to the orders of the board of supérvisors and may in a proper case represent an officer of the county when sued in his official capacity although instructed not to do so by the board of supervisors.</p>

<p>Appeal and Error — law of the case.</p> <p>A question before this court and decided on an appeal cannot be reheard or examined upon a subsequent trial and appeal of the same case.</p> <p>Same — same.</p> <p>An opinion of this court reversing a judgment of the circuit court and remanding the cause for further proceedings does not preclude the parties from raising questions on a subsequent trial and appeal not involved in the former appeal.</p> <p>Mechanic’s Lien- — enforcement—defense.</p> <p>Any matter that would constitute a good defense to an action of assumpsit on the account which is the basis of the lien is a good defense to a suit to foreclose the lien.</p> <p>Same — same—same.</p> <p>If it appears that the account which is the basis of the lien was not due when the suit to foreclose the lien was begun there can be no recovery, and this defense may he set up by other defendants than the debtor.</p>

<p>Real Actions — statute of limitations distinguished from the common law presumption of a lost grant.</p> <p>There is a marked difference between a title acquired by prescription under the statute of limitations and a title acquired through the medium of the common law presumption of a lost grant.</p> <p>Same — same.</p> <p>Under the statute of limitations the rule is an arbitrary one and the presumption is conclusive, whereas the common law presumption is rebuttable.</p> <p>Same — same.</p> <p>The statute of limitations cannot be invoked against the State but where sufficient facts are shown the common law presumption of a lost grant may be indulged in and the rule will be applied as a presumptio juris et de jure even as against the State.</p> <p>Same — common law presumption of a lost grant.</p> <p>Where the evidence is sufficient to apply the common law presumption of a grant it may also be assumed in the absence of circumstances repelling such conclusion that all that might lawfully have been done to perfect the legal title was in fact done and in the form prescribed by law.</p> <p>Same — same.</p> <p>Tbe doctrine of tiie common law presumption of a lost grant may be invoked in favor of tbe State as well as against it.</p>

<p>Taxation — counties.</p> <p>A county is not entitled to tbe general property taxes collected upon property situated in said county during a given year even though the taxes collected were levied and assessed for a former year until the Territory has received and retained the full amount which it is authorized to retain under Sec. 1299 R. L. 1915 for the purposes specified in subdivision 5 of Sec. 1236 R. L. 1915 during the year in which the collection is made.</p> <p>Statutes — construction—contemporaneous construction.</p> <p>Contemporary construction and official usage for a long period by persons charged with the administration of the law are among the legitimate aids in the interpretation of statutes.</p>

<p>Reserved Question From Circuit Court First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Indictment and Information — construction.</p> <p>An indictment under section 2214 R. L. 1915 which alleges in effect that the defendants who constituted the board of supervisors of a county did incur, authorize, contract and aid in incurring, authorizing and contracting liabilities and obligations for the purposes of said county in excess of the amount of money available for the purposes of said county during the fiscal year is an indictment for having incurred liabilities in excess of the amount of money available for all county purposes and is not an indictment for having incurred liabilities in excess of the amount available In any particular account.</p> <p>Same — same.</p> <p>An indictment should contain such a specification' of the acts and descriptive circumstances as will on its face fix and determine the identity of the offense with such particularity as to enable the accused to know exactly what he has to meet.</p>

<p>Error to Circuit Judge First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Exceptions From Circuit Court First Circuit. Hon. J. J. Banks, Judge.</p>

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

<p>Territories — limitation on legislative power.</p> <p>An appropriation of money by the legislature to pay to a defaulting homesteader any sum in excess of the value of his improvements as legally ascertained would -amount to a gift or gratuity and is void.</p> <p>Payment — fund from which payment is made not material.</p> <p>A payment by the Territory to one for whose benefit the legislature has made an appropriation, although not paid out of the fund contemplated by the appropriating act, will nevertheless be applied as a credit upon the amount appropriated when it appears that the payment was made on account of the claim for which the appropriation was made.</p>

<p>Motion to Amend Decision.</p>

<p>Habeas Corpus — errors and irregularities not to Be reviewed l>y.</p> <p>It is well settled that a writ of habeas corpus will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing errors or irregularities in proceedings of a court having jurisdiction over the person and the subject-matter.</p> <p>Same — same.</p> <p>Where the evidence is insufficient to support a verdict finding a defendant guilty of a crime the conviction would be voidable but not void and the defendant’s remedy would be by exception or error.</p> <p>Same — same.</p> <p>The writ of habeas corpus will not issue unless the court under whose warrant the prisoner is held is without jurisdiction. The writ cannot be used to correct errors.</p>

<p>Appeal from Circuit Judge First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Equity — dismissal of lili — practice.</p> <p>Where the bill of complaint is to be attacked for reasons extraneous of the record the correct mode of procedure is by the interposition of a proper plea and not by motion to dismiss.</p> <p>Same — same.</p> <p>The rule obtaining in this jurisdiction is that where the bill itself is deficient the proper defense is by way of demurrer. If for reasons appearing upon the face of the hill the suit ought not to be maintained a plea in abatement or other appropriate plea should he interposed.</p>

<p>Motion for Counsel Fees, Etc.</p>

<p>Criminal Law — trial—public trial — what constitutes.</p> <p>Under the Sixth Amendment to the United States Constitution declaring that in all criminal prosecutions the accused shall enjoy the right to a public trial it is error to exclude all persons excepting officers of the court and any one particular person whom the defendant would like to have present.</p> <p>Same — same—same—same—presumption of enforcement of order.</p> <p>In the absence of a showing to the contrary it is to be presumed that an order excluding the public from the courtroom during a criminal trial was enforced and that it was prejudicial to the rights of the defendant.</p> <p>Same — same—same—same—denial of constitutional right — presumption of prejudice — burden of proof.</p> <p>Where a defendant is denied the constitutional right of a public trial he is presumed to be prejudiced and the burden is not upon him to show injury by reason of the deprivation.</p>

<p>Error to Circuit Judge First Circuit. Hon. W. H. Heen, Judge.</p>

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

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

<p>Trial — nonsuit.</p> <p>This court will not disturb the ruling of a circuit judge denying defendant’s motion for a nonsuit at the close of plaintiff’s evidence in rebuttal in a jury-waived trial if the evidence would have justified submitting the questions of fact to a jury.</p> <p>Same — same.</p> <p>To authorize the court to take the question from the jury the evidence must be of such a character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.</p> <p>Evidence — sufficiency.</p> <p>A mere scintilla of evidence is insufficient tp support a finding of fact and to amount to more than a mere scintilla the evidence must be of a character sufficiently substantial in view of all the circumstances of the case to warrant the jury (or judge) as trier of the facts in finding from it the fact to establish which the evidence was introduced.</p>

<p>Suggestion of Death of Plaintiff and Motion by His Executors for Substitution.</p>

<p>Suggestion of Death of Plaintiff and Motion by His Executors for Substitution.</p>

<p>Tbial — findings of fact — credibility of witnesses.</p> <p>Issues concerning the credibility of witnesses and the weight of the evidence are to be determined by the trial court and the findings cannot be disturbed if supported by evidence.</p> <p>Attachment — motion to dissolve — exemption of property levied on as ground.</p> <p>It is not a sufficient ground for dissolving a writ of attachment that the property levied upon is exempt from seizure under the writ.</p>

<p>Appeal from Circuit Judge First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Reserved Question From Circuit Court First Circuit. Hon. J. T. DeBolt, Judge.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. J. T. DeBolt, Judge.</p>

<p>Criminal Law — verdict—sufficiency of evidence to sustain.</p> <p>Where in a criminal prosecution the jury upon evidence which the law recognizes as sufficient finds the defendant guilty it is beyond the province of this court to disturb the verdict.</p> <p>Same — same—same.</p> <p>The question for our determination is not whether we would or would not have convicted the defendant upon the evidence as disclosed by the record before us but whether there was evidence sufficient to support the verdict as returned.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. J. T. HeBolt, Judge.</p>

<p>Exceptions from Circuit Court First Circuit. Hon. J. T. DeBout, Judge.</p>

<p>Contempt — record.</p> <p>A recital in the mittimus that the accused “in a contemptuous and insulting manner * * * made certain statements intimating, and intending to intimate, the incompetency of the judge,” etc., is not a compliance with the provisions of section 4056 R. L. 1915 which provides that “Whenever any person shall be adjudged guilty of any contempt or sentenced therefor, the particular circumstances of the offense shall be fully set forth in such judgment and in the order or warrant of commitment.”</p> <p>Same — same.</p> <p>The language itself should be set out in the mittimus to enable the reviewing court to determine whether the judge of the court below properly assumed that the petitioner intimated, or intended to intimate, the incompetency of the judge.</p> <p>Same — legislative authority.</p> <p>The right to punish for direct contempt is inherent in every court of record and it is doubtful if that right can be taken away by legislative enactment, but the procedure is purely statutory and compliance with the statute in respect thereto must be had.</p>

<p>Appear, from Circuit Judge First Circuit. Hox. J. T. DeBolt, Judge.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Appeal and Error — law of the case — decision on reserved, questions.</p> <p>The rule generally referred to as the law of the case does not apply to interlocutory decisions and decisions on reserved questions so as to prevent this court from re-examining the same question when the case comes before it on a subsequent appeal.</p> <p>Deeds — construction.</p> <p>In case of a grant to “E, her lawfully begotten children, their heirs and assigns,” without such words as “after her decease” and E has no children at the time of the grant, the words “lawfully begotten children” become words of limitation and at common law E would take an estate tail.</p> <p>Same — same.</p> <p>But since estates tail cannot be created • or exist here E will be held to take an estate in fee simple unless in order to give effect to other provisions of the deed a different holding is necessary.</p> <p>Same — same.</p> <p>Where such deed contains an additional provision forbidding E from selling the land it will more nearly carry out the expressed intention of the grantor to hold that E took a life estate with remainder in fee to her lawfully begotten children.</p>

<p>Courts — attorneys—disbarment.</p> <p>By the provisions of section 2331 R. L. 1915 circuit courts in this Territory possess the authority to dismiss attorneys from the roll of practitioners, at least so far as the roll of the court acting is concerned.</p> <p>Same — same—same.</p> <p>The power to disbar an attorney rests upon very different grounds from the power to puniáh foi contempt.</p> <p>Same — same—same.</p> <p>An attorney holds his office during good behavior and can only be deprived of it for .misconduct ascertained and declared by a court of competent jurisdiction after opportunity to be heard has been afforded the accused.</p> <p>Same — same—same.</p> <p>Where the judge of the circuit court called the attention of the attorney general to certain alleged misconduct of the attorney and requested him to investigate the matter and to prefer charges against the attorney in the supreme court if in his opinion the facts warranted the judge of the circuit court was entirely without jurisdiction to prejudge of the guilt of the accused and to summarily suspend his license without a hearing.</p>

<p>Appeal and Error — assignment of errors — sufficiency.</p> <p>An assignment of error general in its nature and indefinite is not sufficient and will not be considered.</p>

<p>Judgment — modification of after expiration of term.</p> <p>The jurisdiction of a court over its judgments terminates with the close of the term at which they were rendered and they cannot be set aside or altered after the expiration of the term at which they were entered unless the proceeding for that purpose was begun during the term.</p>

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

<p>Indictment and Information — requisites of.</p> <p>A complaint which alleges that the defendant did unlawfully and furiously and heedless of the safety of others drive an automobile and did thereby imminently endanger the personal safety of others (without naming the person or persons whose personal safety was imminently endangered) although substantially in the language of the statute (Sec. '4100 R. L. 1915) is insufficient.</p>

<p>Appeal from Circuit Judge First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Appeal from Circuit Judge First Circuit. Hon. C. S. Franklin, Judge.</p>

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

<p>Statutes — construction of statutes imposing taxes.</p> <p>It is a cardinal rule of construction that statutes imposing taxes are to be construed strictly against the government and in favor of the taxpayer and that no person and no property is to be included within their scope unless placed there by clear language.</p> <p>Same — same.</p> <p>It is the established rule not to extend their provisions by implication beyond the clear import of the language used or to enlarge their operation so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government and in favor of the citizen.</p> <p>Same — sections 1305 and 1307 R. L. 1915 differentiated.</p> <p>Sections 1305 and 1307 R. L. 1915 were intended to serve separate and distinct purposes. The first levies an income tax upon the gains, profits and income derived from certain definite and plainly enumerated sources and fixes the rate of taxation, while the latter merely prescribes the method to be pursued by the taxpayer in returning his gross income from which his net taxable income is to be computed.</p> <p>Girts — gratuities inter vivos not deemed to Be income.</p> <p>While gifts causa mortis usually fall within the scope of inheritance tax enactments Christmas gifts and other gratuities inter vivos are not deemed to be income and are not taxable as such under any of the existing laws of this Territory.</p>

<p>Appeal from Circuit Judge Second Circuit. Hon. L. L. Burr, Judge.</p>

<p>Estates — rights to letters of administration — order of priority.</p> <p>Under section 2490 R. L. 1915 the first right to receive letters of administration is accorded to the wife of a deceased husband and the second right thereto is in the children of decedent who have reached their majority, but the widow is not entitled by filing her written request for the appointment of a stranger to the estate to advance the stranger to the same class and rant which she enjoys and especially is this true under a statute which recognizes no right of nomination in those entitled to administer.</p> <p>Same — same—same.</p> <p>Our statute requires that the order of priority contained therein be observed by the probate judge unless satisfactory cause is shown which in the eyes of the law will justify a disregard of the order of priority.</p> <p>Same — same—saSme.</p> <p>A mere show of hands or a poll of the heirs of the decedent by which a majority register a preference for the appointment of a stranger to the exclusion of a son of legal age who is in all respects shown to be qualified does not in our opinion constitute a satisfactory cause.</p> <p>Same — same—same—effect of nomination of stranger ~by widow.</p> <p>In the present case the widow by nominating a stranger as administrator of the estate attempted to arrogate to herself a right which the laws of this Territory do not confer, hence the effect of her action was to renounce her own right to the appointment and to pass it on to those within the next group in the order of priority; that is, to the children of legal age.</p>

<p>Appeal from Circuit Judge First Circuit. Hon. J. J. Banks, Judge.</p>

<p>Courts — jurisdiction in equity matters.</p> <p>Under section 2472 R. L. 1915 the several circuit courts throughout the Territory possess jurisdiction of matters where relief in equity is prayed for without regard .to where the rem is located or where in the Territory the parties may reside.</p> <p>Same — same.</p> <p>But a complainant in equity does not enjoy as a matter of of right a roving commission to institute and maintain his suit in any of the circuit courts which he may choose.</p> <p>Same — same.</p> <p>Where concurrent jurisdiction in equity cases is reposed in several courts whether that jurisdiction will be exercised or declined by one of such courts rests largely in the discretion of the judge and depends upon the circumstances of each case.</p> <p>Same — same.</p> <p>The attempt of the petitioner in the present case to draw the respondents away from the jurisdiction where all the parties reside was properly held by the judge of the court below to be inequitable and unjust.</p>

<p>Appeal prom Tax Appeal Court Fourth Circuit.</p>

<p>Penalties — frontage tax.</p> <p>Where one is called upon to pay a street assessment under the frontage tax laws, which he believes to be illegal, he has two courses open to him. He may resist payment at the hazard of all penalties in case the decision shall be against him, or he may pay the assessment under protest and then in case of a decision in his favor demand the return of his money.</p> <p>Same — same—injunction.</p> <p>The fact that the property holder in good faith sues out a temporary injunction restraining the City and County from collecting the assessment does not suspend the operation of the statute which levies a penalty of one per cent, per month for the period of default.</p>

<p>Statutes.</p> <p>Section 2930 R. L. 1915 held to be a valid and subsisting statute..</p> <p>Divorce.</p> <p>Tbe term “divorce” in its accurate sense denotes dissolution or suspension by law of the marital relation. The expression is broad and comprehensive and includes every kind of divorce recognized by the statutes of the Territory.</p> <p>Same — cross-lit) el.</p> <p>Where a party sets in operation the machinery of the law for the purpose of obtaining a divorce, and without regard to whether the divorce sought be complete dissolution or merely suspension of the marital relations, the other party may interpose a cross-libel and have relief thereon as fully and effectually as in an original petition for divorce.</p>

<p>Appeal and Error.</p> <p>The requirement in the statute (Sec. 6 of Act 44 S. L. 1919) making it necessary where there is a money judgment that a bond shall be filed in favor qf the prevailing party obviously refers to a money judgment in favor of the appellee. Where the only money judgment recovered in the cause is in favor of the plaintiff in error a bond to require the payment of the judgment would serve no useful purpose and no bond is required as a prerequisite to the writ.</p>

<p>Commercial Paper — dills of lading.</p> <p>The bill of lading represents the goods. It is the symbol of the goods. Its negotiability is that of the goods. Thus in general the transferee of a bill of lading takes the title of the transferor just as the transferee of goods takes the title of the transferor.</p> <p>Same — dills of exchange — transfer dy dlank indorsement.</p> <p>The legal title to a bill of exchange may be transferred by blank indorsement and the holder to whom such bill is transferred has absolute control thereof.</p> <p>Same — same—same.</p> <p>.The possession of a bill of exchange indorsed in blank to the payee is prima facie proof of ownership and sufficient in the absence of other evidence to entitle the holder to recover on proving the indorsement.</p>

<p>Reserved Questions from Circuit Court Fifth Circuit. Hon. L. A. Dickey, Judge.</p>

<p>Petition eor Rehearing.</p>

<p>Statutes — construction—meaning of language.</p> <p>It is a general rule that language used in a statute or constitution must be presumed to have been used in its known and ordinary significance unless that sense be repelled by the context.</p> <p>Same — same—meaning of phrase “office of the Territory of Hawaii.”</p> <p>In its known and ordinary significance the phrase “office of the Territory of Hawaii” does not include offices purely local or municipal, but includes only such offices as were created for the purpose of carrying on the business of the territorial government.</p> <p>Same — same—disqualification .of citizen for election to office.</p> <p>Statutes providing for disqualification of citizens for election to office are construed strictly and will not be extended to cases not clearly within their scope.</p> <p>Officers — election of officer to another vacates first, when.</p> <p>The acceptance of an office by one already holding another, where the holding of the two offices by one person at the same time has been prohibited by law or the two offices are incompatible at common law, automatically vacates the first office held.</p> <p>Same — election of officer to another does not vacate first, when, not</p> <p>If the law doesAforbid the holding of the two particular offices by one person at the same time and they are not incompatible at common law the acceptance of the second does not vacate the first and the person so elected could legally hold them both at the same time.</p> <p>Same — acceptance by legislator of office of supervisor of City and County of Honolulu, effect of.</p> <p>Section 17 of the Organic Act prohibits any person holding office “in or under or by authority of the government of * * * the Territory of Hawaii” from holding the position of a member of the legislature while holding said office. Held, that the office of supervisor of the City and County of Honolulu is an office by authority of the government of-the Territory of Hawaii and therefore the acceptance of the office of supervisor by a member of the legislature automatically vacated the office of member of the legislature.</p>

<p>Petition for Rehearing.</p>

<p>Trover and Conversion — demand when necessary.</p> <p>In actions of trover the general rule recognized by all of the authorities is that where the original taking is lawful and there has been no illegal assumption of ownership or illegal user a demand and refusal, must be shown as evidence of a disposition to convert to the holder’s own use or to divest the true owner of his property.</p> <p>Same — demand when not necessary.</p> <p>Where the taking itself is wrongful or where there is an illegal assumption of ownership or an illegal user a demand and refusal need not be proved.</p> <p>Same — conversion defined.</p> <p>Any distinct act of dominion wrongfully exerted over one’s property in denial of his right or inconsistent with it is a conversion.</p> <p>Same — trover and replevin distinguished.</p> <p>In the common law action of trover the plaintiff seeks solely the recovery of damages for the conversion of his property and the action is thus distinguishable from an action of replevin in which the primary relief sought is recovery of the specific property in question though by statute damages based on the value of the property, if its return cannot be obtained, may be recovered.</p> <p>Same — effect of return or offer to return property.</p> <p>As a general rule an offer to return property wrongfully converted is not admissible even in mitigation of damages, but where the conversion is technical, inadvertent or the result of a mistake and the property is still in status quo an offer to return it may be shown in mitigation of damages.</p> <p>Same — measure of damages.</p> <p>In this class of cases the measure of damages ordinarily would be the fair reasonable value of the property at the time of the conversion. If the plaintiff has accepted the return of the property this would not bar an action for conversion but would mitigate the damages and fix the measure thereof at the reasonable value of the property at the time of the conversion less its value when returned.</p>

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

<p>Libel and Slander — pleading—falsity of publication need not be alleged.</p> <p>It is not necessary for tbe plaintiff in a civil action for libel to allege tbe falsity of tbe libelous publication, but if tbe defendant desires to justify the publication by showing it to be true that comes in as a defense under a proper pleading in bis behalf.</p> <p>Same — same—special damages when not necessary.</p> <p>If tbe publication complained of is libelous per se special damages need not be alleged or proven but general and punitive damages may be recovered.</p> <p>Same — publication libelous per se when.</p> <p>If tbe language used of and concerning tbe plaintiff (when construed to mean what persons of ordinary intelligence reading it would reasonably understand it to mean) would tend to render bim contemptible or ridiculous in public estimation or expose him to public hatred or contempt it is libelous per se.</p> <p>Same — same.</p> <p>To publish of a person that be has not a sufficient job because be is a loafer or a slacker is libelous per se as such a charge tends to subject tbe person charged to social degradation and to the contempt of all right thinking people.</p>

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

<p>Replevin — evidence—possession.</p> <p>When it appears that from the time plaintiff claims to have acquired title to the property in controversy from the defendant, he has had possession of said property, it is proper to show the attitude of both himself and the defendants toward that possession.</p> <p>Same — parties defendant — joinder of principal and agent.</p> <p>An agent or servant of a corporation may be joined with the corporation in replevin even though all that he did in the way of talcing and detaining the property was merely as the agent and _ servant of the corporation.</p> <p>Trial — verdict—correction of errors.</p> <p>Where the jury attempt's to return a verdict for an amount greater than is justified by the undisputed evidence it is proper for the court to refuse to receive the verdict and instruct the jury to retire and correct its verdict so as to conform to the uncontradicted evidence to which he calls its attention.</p>

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

<p>Error to Circuit Court First Circuit. Hon. C. S. Franklin, Judge.</p>

<p>Motion to Open Default and Extend Time Within Which to File Brief.</p>

<p>Reserved Questions from Circuit Court First Circuit. Hon. J. T. DeBolt, Judge.</p>

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

<p>Taxation — reduction from, value of assets of corporation when ascertained by market price of its stock.</p> <p>In estimating for taxation purposes the value of the assets of a corporation forming an enterprise for profit, whose stock is quoted on the markét, a small reduction is usually made from the total value of the assets of the company as indicated by the prevailing market price of the stock of the company on the assumption that it is too high because based upon the value of the shares of stock in small lots and that if the whole of the stock or large blocks thereof were put upon the market the price for that reason would be less than the market quotation.</p> <p>Same — reduction from value of nontaxable assets.</p> <p>Where a reduction is allowed upon the total assets of the company in determining their value the same rate of reduction should likewise be allowed upon the nontaxable assets of the company.</p> <p>Same — value of stock in other Hawaiian corporations owned, by the enterprise.</p> <p>In order to ascertain the proper deductions to be made by reason of the shares of stock in other Hawaiian corporations owned by the enterprise the reasonable market value thereof should control instead of the par value or the book or so-called assessed value of the stock.</p> <p>Same — stock held in foreign corporations — exempt from taxation when.</p> <p>Under section 1259 R. L. 1915 holders of shares of stock in corporations are not liable to be assessed in respect to their individual shares or interest in such companies, yet by the provisions of section 1257 R. L. 1915 the word “company” is held to mean only such corporations as are incorporated under the laws of the Territory and foreign corporations carrying on business in the Territory.</p>

<p>Petition for Rehearing.</p>

<p>Trial — nonsuit.</p> <p>The erroneous denial of a nonsuit for want of sufficient evidence is harmless error where after such denial the defect in plaintiff’s proof is supplied by evidence introduced by either party.</p> <p>Pleading — amended pleadings.</p> <p>Under our statute of amendments (Sec. 2371 R. L. 1915) it is proper for the court to allow the plaintiff to amend his complaint-after all the evidence is in where the amendment serves to malee the pleadings conform to the proof.</p> <p>Carriers — duty to warn passenger of danger — instruction.</p> <p>In an action for damages for personal injuries by a passenger against the owner of a vessel an instruction to the effect that it was the duty of the officers in charge of the vessel to warn him of any danger which may be apprehended or foreseen with reference to the place of riding, and which fails to tell the jury that there was no duty to warn him if the conditions which constituted the danger were as observable by him and as obvious to him as they were to them, is erroneous.</p>

<p>Appeal and Error — party not appealing not to he heard.</p> <p>. It Is elementary that where a party to a suit does not appeal from the decree entered therein he must be held to acquiesce in it .and cannot be permitted to ride into an appellate court upon the appeal of another party to the suit, except that under certain circumstances not existing in this cause a nonappealing party may be heard in the appellate court on the appeal of another by virtue of Act 45 S. L. 1919.</p> <p>Same — trustees’ right of appeal.</p> <p>It is the general rule that executors, administrators and trus-. tees are in their official capacity indifferent persons as between the real parties in interest and they cannot litigate the interest of one of such parties as against the other at the expense of the estate.</p> <p>Same — appealing party must have interest.</p> <p>A party to a suit cannot appeal from a judgment or decree if he is not thereby affected. While section 2508 R. L. 1915 is extremely broad it requires that the appellant in order to entitle him to prosecute an appeal must be aggrieved by the judgment or decree complained of.</p>

<p>Motion for Allowance of Attorney’s Fees.</p>

<p>Exceptions prom Circuit Court First Circuit. Hon. J. J. Banks, Judge.</p>

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

<p>Appeal and Error — party appealing must have interest.</p> <p>The appellate jurisdiction of this court can only be invoked by a party aggrieved by the decision, judgment, order or decree appealed from.</p> <p>Same — same—Act 1/5 S. L. 1919 construed and applied.</p> <p>Act 45 S. h. 1919 provides that “In case the decision, judgment, order or decree sought to be reviewed was rendered against two or more persons * • * all such cases shall be determined as if all such persons had joined in the appeal;” but where the decree appealed from is not against one of the parties he cannot prosecute an appeal nor will he be permitted to be heard upon the appeal of some other party against whom the decree was rendered.</p> <p>Trusts — attitude of trustees in controversy between real parties in interest.</p> <p>The trustees should occupy a neutral and indifferent attitude in any controversy between the real parties in interest and clearly they ought not to be allowed to litigate the claim of one such interested party as against another suph party.</p> <p>Same — duty to protect estate.</p> <p>If the estate itself as an entity is attacked it would be the duty of the trustees to defend and if such defense requires that an appeal be prosecuted it would be their right and duty to prosecute the appeal.</p> <p>Same — same.</p> <p>So if the interests of the estate require the bringing of a suit such suit should be brought by the trustees and in the event of an unfavorable judgment the trustees should appeal therefrom if such appeal would be proper to protect the interests of the estate.</p> <p>Same — same.</p> <p>But with controversies which affect the individual interests alone of those who may be interested in their trust the trustees have nothing to do and consequently cannot be aggrieved by a decree which affects only those individual interests. .</p>

<p>Petition for Rehearing.</p>

<p>Sodomy.</p> <p>The morbid rule announced by some early day English and American courts to the effect that in a prosecution for sodomy emission must be proved, cannot be accepted as the true doctrine of the common law.</p> <p>Indictment and Information — charging crime in cliferent 'forms of expression.</p> <p>The fact that the one crime is charged more than once in equivalent or synonymous expressions is not fatal to the indictment.</p> <p>Appeal and Error — instruction.</p> <p>Where the instruction is not couched in the identical language of the statute and might be misunderstood the mere saving of an exception to it without request for further instructions presents no error on appeal.</p> <p>Same — rejected evidence.</p> <p>The refusal of the trial court to allow an answer to a question propounded by counsel for the ’ defendant to a witness is not reversible error 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>