Volume 3 — Hawaii Reports

<p>A certificate of award issued by the Land Commission of an Ili of land, by name, is only prima facie evidence of the nature of the award made and may be contradicted by the original record. It appearing that by the record of the Land Commission, the Ili of “Kewalo” had been awarded by surveys attached to the award it was held that a certificate of boundaries by the Commission of Land Boundaries for the Island of Oahu, covering more than the said surveys is void.</p>

<p>It is error to Impose a sentence for imprisonment only when the penalty by statute is imprisonment at hard labor. The prisoner had been discharged on Habeas Corpus ; the Attorney General was allowed to bring up the order of discharge hy petition for review.</p>

<p>“Persons coming here from China under contracts for labor made there,” personally subject to the taxes of this Kingdom.</p>

<p>Writ of Error does not lie in causes for which appeals lie. Petition for review might be granted if failure to perfect appeal were due to no laches and not from misapprehension of parties or the lower Court.</p>

<p>A majority of the Court may constitutionally hear causes in Banco. Exceptions in criminal causes lie from the Circuit Courts. Admission of the evidence of a boy who said he “ did not know the result if he testified falsely ” is correct, if the Court were satisfied of his belief in God and in his accountability. It is not error to admit improper evidence if it is afterwards ruled out. The competency of confessions is for the Court to decide. The burden of proof is on the defence to show inducements. Prisoners may be indicted jointly for crime. Confession before a Magistrate will be excluded “if made in consequence of a previous threat or promise by a person who may be supposed to have some authority or influence.”</p>

<p>Arrest oe judgment will not be ordered because an indictment for rape fails to aver the age of the prosecutrix to be over ten years; nor will a new trial be ordered because there was no evidence that she was over that age, or because the verdict was against evidence, “unless it is manifest that the jury erred through some misapprehension or mistake, or had abused their trust.”</p>

<p>A mortgage made by. an insolvent, under Civil Code, Sections 962 and 968, to a creditor aware of the insolvency, is void.</p>

<p>The charter of A church providing that its trustees should be elected by members in regular standing, and the pastor having omitted to keep records of persons admitted to the chureh, or to examine those admitted, or to celebrate the rites of the Communion and Baptism, held, that trustees elected by such a chureh were not shown to be duly elected by members in regular standing according to the charter.</p>

<p>Probate op a will is not set aside except by very clear evidence of praud.</p> <p>Lack op provision for a daughter is no reason for refusing probate of the will.</p> <p>•Additional evidence on appeal is to be closely scrutinized.</p> <p>Additional evidence being admitted on appeal, according to See. 3 of the Act passed 31st December, 1864, entitled “An Act to authorize the trying of issues of fact in matters of Probate and Administration by a Jury,” the Court was of opinion that all such additional testimony (tending to throw- discredit upon the authenticity of the instrument purporting to be a will), based upon the' loose and unguarded conversation of the witnesses to the will, and of outside parties, should be cautiously watched, and ought not to prevail against direct and positive proof that the handwriting of the entire instrument and signature was that of the testator, and his competency/ also, being unquestioned.</p>

<p>In a statute bond conditioned to sell liquor according to the law, and otherwise to forfeit the penalty “upon proof being made to the satisfaction of a common magistrate without the intervention of a jury,” the judgment of forfeiture must be made by such magistrate having original jurisdiction of all complaints for violation of LICENSE LIQUOR LAWS.</p>

<p>A voluntary assignment for the benefit of creditors gives a creditor a right to a dividend, although his claim accrued while the debtor was in fact insolvent, but did not mature until after, and the insolvency was not known, to him.</p>

<p>In an indictment for burglary under Section 17, Chapter 14 Penal Code, it is unnecessary to aver the absence of any person in the building or that the burglar was not armed.</p>

<p>In a suit for malicious prosecution, a nonsuit is properly ordered, if the plaintiff’s evidence, admitting it to be true, fails to show WANT OP PROBABLE CAUSE.</p>

<p>A new trial will not be granted for want of evidence if there is evidence to sustain the verdict, “ unless it is apparent that the jury have misunderstood or totally disregarded the instructions of the Court, or have neglected properly to consider the facts and have overlooked prominent and essential points in the evidence so that substantial justice has;not been done.”</p>

The bill of exceptions sets forth that at the June Term, 1868, of the Circuit Court for the Second Judicial Circuit, held at Lahaina, Island of Maui, and one of the Hawaiian Islands, an indictment, wherein the defendants were jointly charged with the murder of one Kaaueaina, at Hamakuapoko, on said Island of Maui, on the 13th day of January, 1868, consisting of three counts, respectively describing the offense as committed with an iron bar, by burning and suffocation, and by…

<p>In a complaint under the Masters and Servants Law, the master’s books may go in evidence.</p> <p>Wages must be paid during the renal service, and for failure to pay them, the contract is broken on the part of the master, and his complaint is dismissed.</p> <p>The lapse op time is no bar to penal enforcement of a contract of labor.</p>

<p>In a trial for Arson, evidence of threats by prisoner, is admissible.</p> <p>It is no objection to a witness’ competency that he has been committed for the same offence, but the prisoner is entitled to the evidence of the record taken of his own testimony before the magistrate who committed the witness.</p>

<p>Circuit courts have not jurisdiction to grant new trials in criminad cases, but they have in crvin causes.</p> <p>An objection to the jurisdiction must be taken if at all before the Circuit Court.</p> <p>The Supreme Court has power to grant new trials on exceptions, from the circuit courts.</p> <p>A verdict will not be set aside “because the Court would have drawn a different conclusion from that drawn by the jury,” nor “in criminal cases particularly, where there was legal evidence tending to support the verdict,” on the ground of insufficiency OF EVIDENCE.</p>

<p>Circuit Judges are not required to allow or refuse bills of exceptions to their rulings in Chambers.</p> <p>When the statute designates a sufficient mode for correcting errors of inferior courts, no other can be pursued.</p>

The plaintiffs claim certain land in Lahaina, now held by the defendants under title derived from George Lawrence, deceased, and damages for the detention thereof. The plaintiffs claim to be children of Becky Mellish, adopted daughter of said Lawrence.

Action to recover a certain lot of land, situated in Honolulu.

<p>Probate of a will will not be set aside after thirteen years, for inconsistencies in the evidence as recorded, nor for the omission in the will to provide for or name the testator’s widow or infant child, nor for 9want of recorded notice to the child of the hearing, as its mother and guardian was present.</p>

. Motion for new trial, argued by agreement before the full Court. The appellant, Kaoaopa, claimed to be entitled as heir to the estate, by virtue of being the adopted daughter of the decedent. At the hearing before the Chancellor, sitting in Probate, it was adjudged that the appellant had not established her claim to be an adopted daughter.

<p>In an action brought against the assignees of a bankrupt who sold his right, title and interest in a house to be removed in three months, the house being on land owned in common between the plaintiff and the bankrupt; held, that no title in the house was guaranteed to the vendee; and the plaintiff was propérly non-suited.</p>

Complaint under Chapter 87, Penal Code, for levying a common nuisance by obstructing a certain public highway upon the Island of .Maui, by erecting or maintaining fences across the said highway. At the trial before the Circuit Court at Lahaina, at the last June Term, the jury rendered a verdict of guilty. The defendant’s exceptions are set forth in the opinion of the Court.

Complaint for selling opium without license. Tbe defendant appealed to the Circuit Court of the Fourth Circuit, from the judgment of the District Magistrate. Two witnesses, Pahiha and- Keliipakaua, testified for the prosecution that they saw the prisoner, at his own house, turn some opium from a large box into a smaller one, which he gave to one Asii ; that they saw Asii then pay the prisoner $2 ; and that they arrested Asii after he left the house.

Tort for damages to plaintiff’s horse by collision with defendant’s team. The plaintiff’s son was driving the plaintiff’s two horse wagon down Fort street, Honolulu, upon the light hand side, and near the corner of King street, the plaintiff’s off' horse was struck in the breast by the off shaft of the defendant’s mule cart. The mule was driven by the defendant’s servant, upon the left hand side of the street, and was just turning the corner when the accident occurred.

“ Peter H. Treadway, as lie is guardian of the minor child of the late Thomas King, and also trustee of the estate of said deceased, claims that fifteen hundred dollars, being a proportionate part of the amount taken by Frank Molteno, under the supposed provisions of the will of said deceased, and the codicil thereto, should be refunded to said estate, the said Molteno not having lived long enough to discharge all the duties imposed upon him by said will and codicil.

Bill in equity, with exhibit annexed, filed May 30th, 1868; process issued, returnable June 16th, before the Chancellor; answer filed September 19th; replication filed October 3. August 5, 1869, the respondents’ counsel moved to dismiss, for want of prosecution.

Submission of case on an agreed statement. May 17th, 1868, tbe firm of Hatfield & Markle, composed of J. W. Hatfield and Jacob Markle, borrowed $100 from the said Ellis, giving therefor their note, secured on a mortgage on “eight yoke of oxen and one cart,” possession of which, by the terms of the mortgage deed, remained with the mortgagors until the note matured. This mortgage was never recorded.

Action of ejectment and for mesne profits. The case was submitted on the following agreed facts: The plaintiff claims under a lease from the Princess Victoria Kamamalu and M. Kekuanaoa, dated January 1st, 1864, for the term of twenty years from its date, which lease was duly acknowledged, and recorded March 39, 1864.

On petition of R! Charlton and others to the Board of Water Commissioners, to adjust their rights to water in Honolulu, the Board made an award September 24th, 1869, in favor of the petitioners. No notice was given of the petition. The appellant was notified of the award September 29th, by the chairman of the Board, aud another hearing was had, at which he appeared, and after which hearing, the Board affirmed their first award.

D. 1869, of the Third Judicial Circuit, Widemann, J., presiding.

Case submitted as follows : 1. The Hawaiian schooner Pauahi, then owned as to one-half thereof by William Babcock, and one-fourth thereof by Henry Macfarlane, and one-fourth thereof by Lucretia B. Green, Hawaiian citizens, was duly registered in the Custom House of Honolulu, on the 10th day of June, 1869. 2.

Case submitted on agreed statement. The following are the material facts submitted, viz: Joseph Maughan, sen., died in Honolulu, in March, 1853, testate, leaving certain land on the Island of Oahu, thus disposed of in his will, which was duly probated: “I give, devise, and bequeath to my wife, Hannah Maughan, during her lifetime, on condition that she provide for, and take charge of my son Joseph Maughan, all that property,” etc.; “at her decease, said property to be equally…

Exceptions from the August Term, A. D. 1870, of the 4th judicial circuit. Indictment for entering a shop at night with intent to steal. When the evidence at the trial was closed on the part of the Crown, the prisoner’s counsel prayed for a non-suit for want of evidence of intent, and excepted to the refusal of this motion. A motion in arrest, for like reason, was denied after the jury had rendered a verdict of guilty, and exception was taken to this ruling.

On information of the Attorney Genera], rule to show cause issued, returnable before the Court in banco. The information presents that May 25th, 1870, one Peterson was committed for trial at the July Term of this Court, for assault with a deadly weapon, two witnesses being at thq same time committed, to testify. That the respondent appeared for the prisoner at said term of Court, when proceedings were had of which the following is the record: ' “ The King vs. Orloff Peterson.

Exceptions to the finding of the Court at nisi prius, as not sustained by law and evidence, judgment having been given for the plaintiff in the sum of $100 and costs. The exceptions were overruled and the judgment was affirmed, but the Court rendered no further opinion. The following is the-statement of the cause. Appeal by the plaintiff from the Police Court of Honolulu.

<p>The Act is constitutional which prohibits suits to recover the price of .liquor sold at retail, even by a licensed vendor, and such claims are not a legal set-off.</p>

Information and complaint by the Attorney General for mal-practice, praying that the said D. B. Mahoe may ,be required to show cause why his name should not be stricken from the roll of attorneys and counsellors of this Court, and such other proceedings be had as to this honorable Court may seem meet, for the following reasons : 1. That the said I).

<p>A verdict will not be set aside as against evidence, “ unless clearly, palpably, decidedly and strongly against evidence.”</p>

<p>Written articles of adoption are not the basis of inheritance. (Allen, Ch. J., dissenting.)</p>

Ejectment to recover possession of land in Honolulu held by the defendant under Royal Patent of September 7th, 1857, and claimed by the plaintiff under Land Award issued to him November 6th, 1852.

Trespass for depasturing ten thousand head of sheep on the plaintiff’s land in the Ahupuaa of Waikoloa, Island of Hawaii, from September 25th, 1870, to the day of commencing this suit. Complaint filed November 29th, service acknowledged by the defendant’s attorney, December 2d, ad damnum $500. Plea not guilty. Jury waived and the cause heard by the full Court. The following documentary evidence is presented by the plaintiff, viz.: Exhibit B2— Deed of Geo.

<p>Administrators are not allowed commissions on specific chattels transferred in kind.</p>

<p>Taxes cannot be assessed on personal property out of the kingdom.</p>

Exceptions from the decision of one of the Justices of this Court at Chambers, refusing to grant a libel for divorce. The libel was filed July 6th, 1870, alleging adultery of the wife. Under the law in force at the date of filing the libel and return of service, the Justices of this Court had jurisdicdiction at Chambers to grant divorces.

Trespass de bonis asportatis. Jury waived. BINDINGS AND OPINION OB THE COURT. The plaintiffs complain that the defendants wrongfully took and converted to their own use, about April 20th, 1871, certain sugar cane then growing on the land of Apuuhua, Lahaina, said cane being the property of the plaintiffs, and in their possession, and lay their damages at $250. The answer is the general issue.

Exceptions from the Third Circuit Court holden at Hilo, at the last May Term, at which the defendant was convicted on an indictment for perjury, charging him with falsely testify-' ing before the Police Justice of Hilo, in a trial of one Koi and one Kapuahi for selling intoxicating liquors, that he obtained liquor of the said Koi and Kapuahi.

Action to recover land granted to one Makailuuwai, deceased intestate, under Land Award No. 1168, by right of descent in the plaintiff' Kapo. The evidence showed that Kapo and the defendant were co-heirs, and that the defendant had held possession since the ancestor’s death in 1852, whereupon the plaintiffs asked verdict for a moiety only. There was no evidence of rents and profits. A special verdict accordingly was taken, and the plaintiffs now move for judgment.

<p>By Section 485 Civil Code, property is taxable which is devised for the Roman Catholic Church, unless it be in the form named in the statute.</p>

<p>The husband does not inherit any of his wipe’s real property if she leave kindred, but he has all the personalty to which she was entitled at her death, including choses in action.</p>

<p>Rigid forms of pleading not required in the Courts not of record, and amendments can be made at any stage of proceedings.</p> <p>Assumpsit lies for money had and received, and not case. An agent is liable if he exceed his authority.</p>

The defendant was indicted for an assault with a loaded pistol, with “intent to murder, maim and disfigure.” The counsel moved in arrest of judgment on the ground that the indictment was defective: 1, in failing to specify any statutory offence, as it neitlier avers that the assault was made by one, “being armed with a dangerous weapon,” nor does it aver any of the modes enumerated in the statute, Section 3, Chapter 9, Comp.

<p>Adverse possession dates only from a land award, which interrupts previous prescription.</p> <p>A land Award of an Ili does not include house lots.</p>

<p>A nolle prosequi of an appeal is no bar to a subsequent trial.</p>

<p>A child adopted as an heir by ancient custom inherits to the excluí sion of collateral kindred, although the adopters died since the present statutes of Wills and Descent took effect. But this relation must be shown by clear and unambiguous evidence, and no judgment is sustainable merely on a verdict that the claimant is a keiki hanai, or foster-child.</p>

In November, 1852, administration on the intestate’s estate was granted by the Probate Court in Honolulu to the appellant’s parents,' Kalawa and Mahiai, the latter of whom was the intestate’s sister and died in 1862. They were also appointed guardians of the appellee as the supposed son and heir of the intestate, on the testimony of the said Kalawa and others to that effect.

in Equity. On Appeal from Decision of the Chief Justice. DECISION ON DEMURRER AND PLEA IN BAR. Bill in Equity to obtain a lot of land in Honolulu, which the respondent holds under a Royal Patent, and which the complainant claims under the following state of facts set forth in his bill: May 20th, 1847, a deed of partition was made between Wm. H. Davis, Robert G. Davis and Elizabeth Jones, of certain land which they inherited, which includes the lot claimed in this suit.

<p>Act op limitations of suits against administrators applies only to those appointed since the act;</p> <p>Such an act does not begin to run until the appointment of the administrator;</p> <p>Presenting a claim to a Probate Court for approval is not commencement of suit;</p> <p>The statute op limitations need not be specially pleaded.</p>

<p>A child inherits who is adopted by ancient custom.</p>

<p>Unless suit against an administrator be brought within the time required by law, — and merely riling a petition without causing a writ to issue, is not such suit, nor is its presentation to a Probate Court, — the claim is barred.</p>

<p>Obscene language used on the highway to a girl in presence and hearing of another girl and a woman is a public nuisance, if the jury so find.</p>

<p>On the wife’s death, her personal property vests in her husband subject to her debts dum sola.</p>

<p>Appeal prom the Police Justice op Hilo.</p>

<p>A remote connection by marriage between a juror and the deceased in a charge of murder is no ground for new trial. Juror’s affidavit-admitted.</p>

Appeal erom Circuit Judge oe Second Judicial District. It appeared on examination of the accounts of George E. Minor, guardian of the minor children of B. F. Sniffin, deceased, before A. Fornander, Esq., Circuit Justice of Maui, on the 29th of January, 1872, that there was a deficiency of $849.60, being part proceeds of a sale of personal property of the deceased by order of the Circuit Justice of Maui, A. J. Lawrence, the proceeds of said‘sale having been paid into the…

Appeal erom Decision oe Mr. Justice Widemann in Probate. P. H. Treadway, administrator with will annexed of Thos.

<p>The statute is constitutional which enacts that a verdict by nine jurors is sufficient.</p>

Biel op Exceptions. This was an action of contract to recover $47.14, for hay sold and delivered to the defendant. The plaintiff offered in evidence his bill rendered with the following endorsement thereon by the defendant, viz.: “J. Montgomery, Esq. Dear Sir — I am not aware that I have ordered or purchased any hay from you, costing over $4 per week, when I am supplied regularly from another source at $1.50 per week.

Motion eor new Trial on Exception to the Yerdict, as UNSUPPORTED BY AND CONTRARY TO EVIDENCE. The defendants were complained of for practicing medicine without license. The evidence was, that “ Hana went after Alona with the intention of having Waahia as his physician, and took him to her (Hana’s) place, February 6th, 1872. Waahia directed Hana how to prescribe (prepare) the. medicine for Alona.

<p>In an indictment of obstructing an officer in discharge of his duty, — averment of intent is sufficient to show the prisoner’s knowledge that this was an officer, and the nature of the duty need not be alleged.</p> <p>A search warrant to seize okolehao to be used as evidence of sale of liquor is illegal, and in the indictment the warrant need not be set forth, but should be produced at the trial.</p>

This was an action of contract to recover 12 per cent, interest on an account stated. Defendant’s intestate had orally agreed with the plaintiff for this rate. The defendant by approval of the Probate Court offered to pay this rate from date of publication of his appointment, but not from the death of the intestate. The Police Court gave judgment for the entire interval, at nine per cent.

A verdict for the appellees was rendered at the last January term of this Court, on the issue whether the appellant was the adopted heir of the deceased under the ancient customs of the kingdom.

<p>A writ of mandamus will not issue to compel a magistrate to grant an appeal, unless bond for costs be filed within one day, under Section 948 of Article 40, Landlord and Tenant Act. (Widemann, J., dissenting).</p>

<p>An ancient adoption of an heir must be shown by evidence that it was a clear, definite, and reasonably notorious act of adoption.</p> <p>Evidence that the kindred did not know the adoption was made is not Negative and hearsay, but is part of the case to be proved.</p>

<p>Bill of exceptions from the Third Circuit Court, at the last November term, held by Hartwell, J.</p>

Question reserved, and submitted by agreement. The Local Circuit Justice of Maui, acting as a Court of Pi’obate, decreed in favor of > a certain claimant of the estate of Poholowai, deceased intestate, to which decree an appeal was taken to the Circuit Court by the contestants. The decree of the Probate Court (of which due legal notice had been made by advertisement), was made after hearing all the evidence presented.

“ The undersigned respectfully represent unto your Honorable Court, that Owen Jones Holt, being indebted to various persons in very considerable sums of money which he is unable to pay, did on the 10th day of July, A.' I). 1871, make an assignment to the undersigned F. H. Harris, a copy of the deed of assignment being hereunto annexed, marked ‘ Exhibit A,’ and made a part hereof. “And the undersigned further represent that the said F. H. Harris did proceed to sell certain…

<p>Lapse oe time is not a bar to the penal enforcement of a labor contract, if it result from the servant’£ own act. (Hartwell J. ' DISSENTING.)</p>

P. Nahaolelua was appointed administrator on the said estate November 26th, 1862, by J. Wight, Circuit Justice of Hawaii.

Exceptions from the last April term. The defendant was convicted before the Police Justice of Honolulu of violating the provisions of the 4th Section of the Act of July 28d, 1868, Chapter 88, Compiled Penal Code, viz.: “Every licensed physician, druggist or apothecary who shall compound, sell or deliver any prescription containing any poisonous drug, or substance deleterious to human life, to be used as medicine, shall enter upon his books said prescription written out in…

<p>A new trial is not granted as against evidence unless, manifestly, a mistake has been made or injustice done, by abuse of power by the jury.</p> <p>Aeeidavits of persons who overheard discussions in the jury room can not be shown to invalidate verdict</p>

The prisoner was indicted and found guilty at the last term of this Court, before Hartwell, J., on the charge that he “ did falsely, fraudently, and feloniously forge and counterfeit a certain deed of conveyance of real estate purporting to be made by one Kauahiopelekane to one Kalauawa,” which deed is set forth in the indictment, “ with the intent then and there to deceive Kaai, Keau, Kalaniumi and Kauahiopelekane, the heirs at law of said Kauahiopelekane, and to deceive…

The prisoners were tried at the last term of this Court before Hartwell,- J., and found guilty of the-charges alleged in the indictment, and thereupon their counsel moved in arrest of judgment, alleging as grounds therefor, 1. That the indictment is double in charging two distinct offences having different penalties. 2.

<p>The act of 1868 to limit the time within which claims may be presented against the estates of deceased persons does not divest mortgagees of their titles or of their remedies against the land by foreclosure.</p>

The parties applied to the Commissioners to decide their rights in a certain artificial water-course called the Kamaauwai. The Commissioners decreed that water be apportioned to the kalo land and to eight acres of kula land, to which they found that water was allotted by Kamehar meha HE.

The plaintiff gave the defendant, master of the schooner Jenny, 154.00 'at Kauai to deliver tó one Chung Hoon, in Honolulu, taking the defendant’s receipt therefor. The said Chung Hoon was absent from Honolulu on the arrival of the schooner, but his clerk requested the defendant to deliver him the money, to which the defendant replied, that the money was deposited with Foster & Co., the agents and owners of the schooner.

Case agreed. The plaintiff’s claim of §742.46 against the said estate accrued against the intestate during his life-time, to wit, November 5th, 1862, and the question submitted is whether the Statute of Limitations requiring actions on such claims to be brought within six years from the time they accrue, ran during the time that the intestate was king, viz., from November 30th, 1863, to December 11th, 1872.

<p>The adoptive father does not inherit the property of his adopted child.</p>

<p>Where merchandise was purchased in New York, sent overland to San Francisco and thence shipped to Honolulu, the invoice being certified by the Hawaiian Consul in San Francisco, and not including the charge for overland freight, held that it was not legal to charge duty in such freight.</p>

<p>The Court in Equity has jurisdiction to decree account and distribution of estates, testate or intestate, and one absent party without notice may afterwards make his claim against executors, administrators or distributees.</p> <p>If erroneous distribution has been made in a Probate Court it is the duty of the Court in Equity to review the judgment of the Probate Court, and order new distribution.</p> <p>The adoption of a child without a declaration of its heirship in the deed of adoption, does not give it rights of inheritance.</p> <p>Chinese marriage not polygamous.</p> <p>The Hawaiian widow of a Chinaman who also had a wife in China is entitled to dower in his estate in this kingdom.</p>

Bill of Exceptions,—Action to recover for Storage of Goods in the Government Warehouse.

<p>Appeal from Decree of Hartwell, J.</p>

<p>A person under guardianship as a spendthrift is not therefore incapacitated to make a will.</p>

<p>OnAppeal from the Decision of Justice Hartwell.</p>

<p>In a criminal case where there is evidence on both sides the jury have the right to pass upon the credibility of witnesses, but when the evidence in favor of the defendant so greatly preponderates as to show mistake or prejudice in the minds of the jury in rendering a verdict of guilty, it becomes the duty of the Court to set aside the verdict.</p>

<p>The plaintiff’s land having been sold and conveyance made by his uncle with the active assistance of the plaintiff, who declared the uncle had the title to the land and the right to convey it with other conduct sufficient to constitute an equitable estoppel ; held that evidence of such equitable estoppel might be received in a Court of law and constitute a bar to the action.</p>

Libel in admiralty on appeal from Justice Hartwell to the Supreme Court in admiralty, Mr. Justice Judd delivered the opinion of the Court. The Japanese crew of the Hawaiian schooner South Sea filed a libel against J. C. Davis, master and owner of said vessel, claiming, in addition to their wages, passage money from Honolulu to Yokohama, Japan; and introduced evidence to show that the voyage of said vessel was from Japan to the South Sea Islands and return to Japan.

<p>In a prosecution for illegal rescue of cattle from a government pound, there must be evidence that such pound has been established in accordance with the statute provisions. It is sufficient if the governor of the island have recognized and adopted the enclosure • already set apart for that use, but it is requisite that legal notice be given thereof by newspaper publication. Long user might be taken as evidence that a notice according to the statute had been given.</p>

<p>The principal of a ward’s estate must be invested by the guardian, and the income and profits accruing from it are all that he may expend for the maintenance of his ward, without the order of the Probate Court to use the principal for such purposes.</p>

<p>“The adjudication of a question of descent or pedigree will be binding not only in the proceedings in which they take place, but in every other in which the same question is agitated, and the mode in which the question was brought before the Court is immaterial.”</p> <p>The Probate Court having determined that a certain relationship exists without reference to the title in any real estate, the related party is entitled to use that decision for the purpose of getting possession of and defending himself in holding any real estate Which by such relationship be inherits.</p>

<p>When a lost deed, unrecorded, is set up for basis of title it is necessary that there should be presented clear proof of the execution of the deed and proof of its contents sufficient to enable the Court to determine the character of the instrument.</p>

<p>The general statute concerning attempts, Chapter XLIV, Penal Code, is of the same force when applied to any offense as if it were especially enacted in the statute creating such offense.</p>

<p>In Equity.</p> <p>Submission without action under the Code.</p>

<p>The habendum clause of a lease being “ to have and to hold the same with all rights privileges and appurtenances to the same belonging for .the term of two years with the privilege of five from the date above mentioned.” Held, there being no specified time in the lease within which the privilege should be claimed, that the lessees continuing on the land after the termination of the two years was a virtual notice of intention to hold to the end of the five years, whereby both parties became bound to the lease for the extended term.</p>

Before Mr. Justice Judd, at Chambers.* • The bill in this case was filed 80th April, 1874; citation was issued returnable 26th May. Ou the 21st May, the respondent filed a demurrer, claiming that the bill does not show that the petitioner is entitled to the discovery or relief prayed for. Hearing was had thereon, June 2d. The causes of demurrer specified are as follows: 1.

<p>The real estate of a partnership used and applied to partnership purposes stands on the same footing as other partnership stock. The interest of any partner therein is his share in the surplus after the partnership accounts are settled. If, therefore, any partner has given a mortgage on his individual share in a partnership holding real estate among its stock such mortgage is subject to the liabilities of the firm, and if made without notice or consent of the other parties in interest is subject to liabilities subsequently accruing.</p>

<p>The plaintiffs being tbe owners of a schooner, transported defendant’s goods and demand freight therefor; it appearing that defendant’s business agents were at the time of the transaction, also the agents of the schooner, and had not charged the freight against the defendant in the account between themselves and him; held that the plaintiffs should recover the freight from the defendant.</p>

<p>A misunderstanding of language between tlie party and his counsel whereby certain testimony was not offered is not a case of “accident, misfortune or injustice,” which the Court should relieve ; new trial on this ground refused.</p> <p>The affidavit of the client not sufficient proof of such misunderstanding.</p>

<p>Devise of “the land, the house and the horse to K., the sisters shall be under him held that the said sisters took no estate which could descend to any one.</p>

<p>Where the note of a third party, viz : the defendant’s agents, was taken on account, it not appearing that the plaintiffs agreed to take it in satisfaction of defendant’s debt; held, that such note taken is not a payment or set off of plaintiffs’ demand.</p>

<p>W. & A. as agents for a certain schooner signed a memorandum of agreement for the transportation of certain freight, A. being at that time also a part owner of the schooner; but sold out his interest previous to the transportation of the freight; held that the fact of A. being a part owner and at the. same time a member of the firm of W. & A. did not make W. & A. principals in the transaction, and that it was left for the jury to find as a fact in the case whether or not W. & A. acted for the owners in signing the memorandum of contract.</p>

<p>A master of a vessel has no authority to appoint an agent in the home port.</p> <p>An agent so appointed cannot recover commissions on disbursements, nor upon cargo sold to himself.</p> <p>Pees paid by a mortgagee to any attorney for advice are nor recoverable 'of the mortgagor, there being no agreement to that effect in the mortgage.</p>

This is an appeal from the Police Court of Honolulu on points of law. It appears that on the 26th January, 1875, the defendant, who is a Chinese woman, was brought before the Police Justice of Honolulu charged with having smuggled opium. Her counsel plead to the jurisdiction of said magistrate to entertain the case, which plea was overruled.

<p>The plaintiff, alleging title by prescription, prays the court to enjoin the defendant, whose title is alleged to be by inheritance from the awardee from asserting his title — the defendant having brought one action of trespass against him and recovered; held that in the absence of a statute to authorize courts of equity to pass on questions of law and fact on the determination of which the title to relief or remedy in equity depends, equity must decline jurisdiction.</p>

<p>Matters of law which have been decided by a judge in probate can- ' not be tried by a jury on appeal.</p>

This opinion was rendered by Mr. Justice Judd as Intermediary Court of Oahu, March 23d, 1874, and was affirmed by the full Court on appeal. It is printed as originally rendered. This is an action for money had and received, for one-half of a fine imposed by the Police Court of Honolulu for smuggling opium, and for one-half of the proceeds of said opium.

<p>An unrecorded deed found after verdict is newly discovered evidence, and is good ground for a new trial.</p>

<p>Where the administrator sold a portion of his intestate’s real estate, pursuant to an order of a Judge in Probate.in 1858, and it not appearing by the record that there was subsequent confirmation of the sale by the Court; held that the statute did not require such com firmation, and the deed was good without it.</p> <p>In argument on exceptions a point not certified in the bill as having been raised in the trial and in which no request had been made for instructions, cannot be taken into consideration.</p> <p>Where a deed recites that the boundary runs along D.’s land the effect is to convey all the land up to his line, even if the courses and distances do not accurately coincide.</p>

Plaintiffs’ declaration states that they complain of defendants, that they have unjustly and contrary to law and the rights of the plaintiffs entered upon and taken into their possession and converted to their use and occupation a certain parcel of land situated at Waianae, Oahu, the land described in Royal Patent No. 396 (metes and bounds given) granted to Hoewaa, to the damage of the plaintiffs in the sum of $500.

<p>A statute passed by the Legislature which enacts that “ no marriage of a Hawaiian woman with a Chinaman shall be invalid by reason of a previous marriage of such Chinaman in China; provided that such marriage shall have been unknown to such Hawaiian woman at the time of her marriage,” — is unconstitutional and void.</p>

<p>On Exceptions erom ruling oe Mr. Justice Harris, January Term, 1875.</p>

<p>The statute of limitations of real actions does not run against the government.</p> <p>Twenty years possession of land, for which no award of the land Commission has issued, affords no presumption of a grant.</p>

<p>A bule of Court, made in pursuance of a statute has the force of law.</p> <p>After decree, counsel have no authority to allow an appeal to be taken against it, after the time for perfecting an appeal has elapsed.</p>

<p>A vessel, though in charge of a pilot, the taking of whom is compulsory, colliding with another, is not thereby exonerated from responsibility for damages caused by the collision.</p> <p>A steamship entering a harbor is bound to exercise great care and diligence, and must avoid a ship at anchor or at the wharf, if it be practicable and consistent with her own safety.</p> <p>Section 608 of the Civil Code construed.</p>

<p>Chapter 51 of the Session Laws of 1874, containing two distinct objects, is contrary to Article 77 of the Constitution and void.</p>

<p>Where a Royal Patent grants land to “K. for M.”, the heir of K. cannot recover in ejectment against the heir of M.</p>

<p>In Bankruptcy.</p>

<p>An indictment signed “J. S. W., Attorney General ad interim,” J. S. W. being also Minister of Finance, held to be good, as the duties of the office of Attorney General are not incompatible with those of the Minister of Finance.</p>

A complete answer to this objection is the fact that the opium which this prisoner was convicted of selling was proven at the trial to have* been bought by him some two months before the sale of which he was convicted, and at that date the law which authorized the sale of opium by licensed dealers was not in force, but had become abrogated by the law under discussion.

<p>Acceptance of rent by the owner of land creates a tenancy for the year'for which payment was made, but it is not an adoption of a lease made by the grantor of the land subsequent to its sale.</p>

<p>Exceptions to a verdict, as being contrary to law and evidence, &e., were noted, and a notice of a motion for a new trial was made tbe next morning after the verdict was rendered; held — too late, the statute requiring the notice of such a motion to be given “at the time of rendering the verdict.”</p>

<p>A lease dated July 15th, 1851, “for twenty-five years from this day forward,” does not terminate until twenty-five years from that date, although the term is described in the lease as “to commence to run from the 7th March, 1851.”</p> <p>Tf an ambiguity exists in a lease, such a construction must prevail, as is most strong against the covenanter.</p>

<p>The firm of A. & A. being licensed dealers sold opium in June, 1875, to the prisoner; held, that he was properly convicted of having opium in his possession in November, 1875, under the Act of 1874, which was passed in 1874, but which did not go into effect until August, 1875.</p> <p>This Act is not retrospective.</p>

<p>The trae construction of Section 1 of the Act of 13th June, 1868, entitled “An Act to regulate contracts between masters and servants” is, that each version of the contract, Hawaiian and English must be signed by both parties.</p> <p>The law does not require, in order to the validity of the contract, that the servant be furnished with a copy.</p>

<p>Where the defendants in ejectment claimed title under a lease signed by three individuals as trustees for forty persons not mentioned by name, they can only be charged with three services and copies.</p>

<p>Appeal erom Police Court.</p>

<p>A Commissioner of Boundaries has not jurisdiction to apportion water rights or other appurtenant rights of lands; he may only determine boundary lines.</p>

<p>Appears perfected after the opening of the term may be heard at the same term.</p> <p>Two Justices may constitutionally sit as the full Court in Banco.</p> <p>The sale of an intestate’s real property under an order of Court licensing him “to sell all the right title and interest of the deceased in the Ili of land known as P.” is not vitiated because the advertising posters recited that such right title and interest were to be sold, with a further particular description of the parcels to be sold, nor by the statement of the auctioneer at the sale that a certain parcel thereof was then under lease, nor by the fact that the administrator sold a portion only of the estate which he was licensed to sell.</p> <p>Administrators’ and executors’ sales under order of Court are judicial sales subject to confirmation, and the statute of frauds, requiring a memorandum in writing does not apply to them.</p>

<p>A deed which had never been in defendant’s possession except temporarily for the purpose of sheltering the grantor’s property from his creditors and not with the intention of passing the estate, was decreed to be cancelled.</p>

<p>The verdict of a jury cannot be examined on a writ of error.</p>

<p>Appeal prom Police Court.</p>

<p>The plaintiff having sued as a partner for a share of proceeds, and failing to prove partnership, is not barred from bringing an action on a quantum meruit.</p> <p>To show the value of agricultural labor, proof may be given of labor in raising a different crop from that in question.</p> <p>It is a proper instruction to the jury to find for the side on which the evidence preponderated.</p>

<p>Submission to the Court on an agreed statement of facts.</p>

<p>Probate of an earlier will revoked, but with costs against a party who had fraudulently propounded it.</p>

<p>When, in a submission under the Code the facts of the ease disclose a fundamental question decisive of the rights of the parties, although it be not the question submitted, the Court must consider it.</p> <p>The conveyance of land to husband and wife and their heirs vests the entirety in each of them, and upon the -death of one the survivor takes the entire estate.</p>

<p>The provision for proceedings on exceptions to the ruling of the Court, in Sections 834 to 839 of the Civil Code, is not controlled hy the provision in Section 1156 for a new trial, although the result of exceptions taken may be the ordering of new trial.</p>

<p>Whebe it is doubtful if the remedy by law in damages for nonperformance of contract will give adequate compensation, the plaintiff may elect to proceed by equity for specific performance.</p>

<p>Appeals from a single Justice to the Supreme Court in Banco may be heard by the Judges in Chambers before the occurring of the regular law term.</p> <p>Appeal may be taken from the ruling of a Justice in Chambers denying a Writ of Mandamus to the Court in Banco.</p>

This is an action in which $10,000 are claimed as damages for the trespass of the defendant’s cattle upon the land Honouliuli, in Ewa, Oahu, the property of the plaintiff, since October 16th, 1875.

<p>Action op Assumpsit.</p>

<p>Section 978 of the Civil Code requires actual notice of insolvency in order to invalidate a purchase bona fide and for good consideration, and it is not sufficient to show general reputation of the insolvency or “ reasonable cause to believe” it.</p> <p>The defendant cannot take up exceptions noted by the plaintiff only. Yerdiet will not be set aside where it does not appear manifestly the result of bias or misunderstanding of the evidence.</p>

<p>A labor contract cannot be enforced against the servant by and in the name of the “ owners ” of a plantation, they being all different parties from the “owners” with whom the servant contracted.</p>

<p>A lease without the words “and to his executors, administrators, &e., is a chattel interest and passes to personal representatives of the lessee deceased.</p>

<p>Section 244 of the Civil Code provides a mode for the restoration of impounded animals within twenty-four hours, but the pound master is bound to obey a magistrate’s order for their release, although made after that time has expired.</p>

<p>A deed written in English, being signed by a Hawaiian; held, that a grantor is presumed to have known the contents of the deed he has executed, unless the contrary is affirmatively shown, and the burden of proof is on the party alleging ignorance.</p> <p>The grantees’ possession of a deed presumes delivery of it, and acceptance.</p> <p>The statute of 1846 concerning the registry of deeds, did not render a non-recorded deed a nullity, by its provision that such deed should not receive judicial cognizance, and said statute being now repealed does not affect deeds made during its existence.</p> <p>Whether the possession in fact is adverse or is under the owners’ title, is one for the jury, with this limitation that the burden of showing the possession to have been adverse is upon the party alleging it, but what constitutes an adverse possession, and what evidence of its being such is sufficient are questions of law for the Court.</p> <p>The judgment of a Police Court, in an action under the Landlord and Tenant Statute, is not decisive of tenancy and title, where it is disputed that the relation of landlord and tenant exists.</p>

<p>The Minister of the Interior may lawfully issue a royal patent for a portion of a parcel of land granted by kuleana award, but it must appear by the literal agreement of the metes, bounds and description of the survey of the portion applied for with that in the award, that it is a portion of such award.</p> <p>Royal patents based on awards do not confer or confirm title.</p>

<p>Submission oe Controversy without Action.</p>

<p>Submission oe Controversy without Action.</p>

<p>The verdict of a jury on an issue of fact in matters of probate and administration, is conclusive of such fact in all further proceedings in probate, unless it be legally set aside.</p>

<p>Bequest to executors in trust for the use and benefit of a daughter, interest to be paid quarterly, with remainder to her children; held that the executors could not retain the said interest for payment of a note to the deceased made in the State of California by the said legatee and her husband.</p> <p>Likewise, that a direct bequest to said daughter could not be retained, the note not having been mentioned in the will, and she not being a debtor to the deceased under the laws of California.</p>

<p>A labor contract executed on the part of the master by his wife, who was left as manager of the plantation in his absence from the kingdom, although without his authority in writing, binds both parties.</p> <p>The agent to take acknowledgment having received his appointment in anticipation of the date when the acknowledgment statute took effect, his acts thereafter are valid.</p> <p>It will not invalidate a labor contract that it is not precise in terms as to the kind of labor to be performed and limited as to place.</p> <p>It is erroneous to bring cases under labor contracts as crown prosecutions.</p>

<p>A form of complaint held good where it conforms to statute form and plainly sets forth the matter in controversy, although the statute form may be redundant for that particular ease, and the Court does not favor technical niceties in pleading as a ground for setting aside verdicts rendered on substantial issues.</p> <p>A defective declaration will sometimes be aided by verdict.</p>

<p>Rulings on Masters and Servants labor contracts—</p> <p>An acknowledgment of contract made prior to the Act of 1876, is good if taken by any officer then authorized to take acknowledgment of deeds.</p> <p>The “copy” which may be furnished the servant is only required to be a literal transcript of the original including its signatures, and is to be certified by the acknowledging officer without charge and stamped at the expense of the master.</p> <p>Contracts executed prior to the Stamp Act of 1876 need not be stamped now.</p> <p>Contracts need not be made in a form prescribed by the Minister of the Interior.</p>

<p>The statute authorizes the condemnation of a foreign vessel from which smuggling has been committed, although the owners are innocent of knowledge.</p> <p>The fact of long continued and excessive drinking and drunkenness, it not having induced a state of insanity, cannot be pleaded in defence.</p>