Volume 4 — Hawaii Reports

on question reserved. In order to entitle a person lawfully to practice as a physician or surgeon for compensation, he must have a certificate… Held: not sufficient. Plaintiff cannot recover fees charged for medical attendance on defendant's deceased intestate, as the statute is not for the purposes of revenue, no fee for license or certificate being chargeable, and the practicing of medicine for compensation without license and certificate being prohibited and punishable.

ON APPEAL ON POINTS OE LAW PROM CIRCUIT JUDOE L5TMAN, Of THE THIRD JUDICIAL DISTRICT. Where the defendant agreed to work for the plaintiffs on the Waiohinu Plantation, or in ease of the transfer thereof, for their assigns, for a specified term; Held (Judd, J., dissenting), that the clause to work for assigns distinguishes the case from the “ Waihee Plantation vs. Kalapu,” 3d Haw. R., 760, and the contract remains in force in favor of the assignee.

ON QuESTIONS RESERVED.. X. M. was sued-in ejectment for a piece of land bought by-him of P. P. by a warranty deed, and gave notice to P. P. to defend,, which he refused, to do,-… Held: the judgment in. the former action was good though obtained by consent, the then defendant having given his grantor notice to defend, and he refusing so to do, and no-fraud, appearing. Also, plaintiff entitled to recover the damages and costs and counsel fees paid by him in the former suit.

These cases were submitted under the statute. The plaintiff, Bishop, owed a mortgage on his real estate in Honolulu, and was also the owner of S5,000 stock in a corporation whose entire property is on Maui, and is there assessed. The plaintiff, Armstrong, is the owner of a mortgage and note on real estate in Honolulu.

The. ofpeNSE. of “illicit cohabitation” is not one- known to- the law.. Unlawful sexual intercourse is, under the statutes of this Kingdom, either adultery or fornication, and the cohabiting of a man and woman who are not married to each other must be prosecuted as one or the other of these offenses.

The Statute of LIMITATIONS does not run against a tenant in common unless there has been an ouster or its equivalent. A lease made by a tenant in- common for a specific portion of the land, no partition having been had, is not good against the other tenant in common.

ON EXCEPTIONS. The PRISONER with three others was indicted for conspiracy to charge a felony with intent to extort money. Held: that the prisoner was not entitled to an acquittal on the ground that the conspiracy had become merged in the subsequent felony.

The DEPENDANT signed a labor contract of A. B. with the plaintiff, and on the contract was written the word “security,” over defendant’s signature; Held; that the defendant was liable as security or guarantor for the default of the laborer. Case remanded to Police Court for judgment.

ON EXCEPTIONS. The defendants had contracted as laborers to work for the owners, of “Waihee Plantation,” who then were Messrs. Held: that the defendants are held by their contracts to work for W., and in his absence to obey the orders and directions of those in charge of his property and labor, but not in the service of other persons. The plaintiff taking no exceptions, cannot ask for a better judgment than he obtained in the Court below.

<p>In an INFORMATION charging a criminal offense against an attorney, he should have the benefit of reasonable doubts.-</p>

LIBEL BOB, DIVORCE;. 1st a libel for divorce on the ground erf willful desertion for three-years, the fact that the libellant was living in adultery came out in evidence; Held, this recrimination was… Held: this recrimination was a good defense. Decree of divorce refused.

The Plaintiffs alleged that the Haiku Sugar Company and the-Wailulcu Sugar Company were incorporated under the general law, and paid in full on the island of Maui all the taxes assessable to said corporations upon their real and personal property for the year 1877, and that thereafter, on November 30, 1877, the plaintiffs, who were owners of shares of stock in said corporations, respectively, were assessed upon the same as personal property the sum of §662.50, which sum they…

A right BY prescription to a footpath along the border -of a kaloi patch does not confer the right to a road sufficiently wide for carriages. An easement can only be continued in the manner and to the extent in which it was acquired.

In an action of assumpsit for use of water, the verdict of the jury was that the defendants had-no right to-the water. Held: that this was a mis-trial, the verdict not being responsive to the issue, anda new trial ordered.

ON EXCEPTIONS- His late Majesty Lunalilo devised to plaintiff “the premises-at Waikiki known as my Marine Residence.” The defendants surrendered to plaintiff certain premises at Waikiki, about… Held: it was no error for the Court to admit evidence to show what was “known as the Marine Residence,” on the ground that there was a latent ambiguity in these words.

JUSTICE MoCULLY. The defendant’s intestate conveyed a piece of land in fee in which, he had only a life estate ; the deed contained a covenant to execute to the purchaser all such further assurances… Held: that as the deceased’s estate has no further title to convey, specific performance cannot be compelled. Plaintiff’s remedy is at law for damages.

ON EXCEPTIONS. A contract was made to sell defendants the clip of wool from the Island of Niihau, to be delivered about “the month of May, 1877;” Held, that the wool tendered in June, July and August… Held: that the wool tendered in June, July and August was not a compliance with the contract.

ON EXCEPTIONS.. The- defendant received from- one Christie three- diamond shirt studs as security for his draft on the plaintiff of $575, which the plaintiff paid.

ON EXCEPTIONS. AN action FOR dower is not a possessory action and may be brought against the party claiming title though not in possession oí the land. The failure of a widow to elect to accept her dower instead of the provision made for her benefit in her husband’s will does not bar her right of dower in lands aliened during coverture.

ON EXCEPTIONS. The Court, in an action for malicious prosecution, admitted evidence .of the pecuniary ability of defendant to respond in damages but afterwards excluded the evidence from the consideration of the jury. .Herd, no error, unless it appear that the jury based their verdict on the excluded testimony.

ON EXCEPTIONS. Tins was a complaint for malicious prosecution- ancf'arrest. The complaint averred an arrest on a criminal charge, but failed to show that the defendant was acquitted thereon. This Court in a former case between the same parties,, substantially similar to this in allegations, held that the failure to allege and show an acquittal of the charge wasfatal to the plaintiff’s right to recover. This is res adjudicatee, and' the plaintiff cannot recover in this case.

on APPEAL. Chapter 52 op the Laws of 1874, being an “ Act to Quiet Title in Lands claimed by Inheritance,” declared unconstitutional as depriving a defendant of the right to try by a jury the title to the land in his possession.

ON APPEAL. An AGREEMENT to convey real estate was signed by a cross mark; Held, a sufficient memorandum within the Statute of Frauds if the signature be proved. Held: a sufficient memorandum within the Statute of Frauds if the signature be proved. A plea in bar reciting an agreement that judgment in favor of defendant may be entered, held good.

At the hearing- on-a bill in equity for the cancellation of a deed of land as being fraudulent, the defendant offered testimony to prove that the ancestor from whom plaintiffs claimed was not the… Held: that the Court had jurisdiction to proceed with the plaintiff’s-bill as to the validity of the deed without determining the claim of Kahula.

The defendant in ejectment disclaimed as to one undivided half of the land, and plaintiff admitted defendant to' be entitled to the other half. An ouster was proved. The declaration averred that “the possession of defendant was in contravention of plaintiffs’ legal right and to their damage of $1,000 Held,, that the declaration. was sufficient upon which to recover mesne profits from defendant.

oh questions reserved. A Married MAN adopted an infant on the 21st of May, 4871, orally, and supplied the infant with food and clothing and bestowed care upon it, and died on the 27th of August, 1873… Held: that the contract being with him alone, it was dissolved on. his death, and his widow could not recover from the infant’s father for necessaries furnished the infant during the above period, the infant having been taken back by its parents.

ON ABEEAL. A Bill in Equity to dissolve a sub-partnership and for an account' was filed 20th March, 1878. Held: no error, as the complainant was entitled to> the use of his-money from the time when its amount could seasonably hav-e been ascertained.

• In an action brought in the Police Court to recover possession of land under Article 40 of the Civil Code, the complaint claimed title- in the land and alleged that the defendant held unlawfully; the defendant denied in writing that he is or ever had been the lessee of the plaintiff, or that the relation of landlord and tenant ever existed between them, and claimed a life estate in the land; Held,, that the complaint in such an action should set forth the tenancy and all…

LIBEL E0R DIVORCE — ON QUESTION RESERVED. The Act op 1878 forbidding, in libels for divorce on the ground of extreme cruelty and desertion, the recrimination of respondent’s adultery subsequent to desertion, is not unconstitutional.

on a request erom the. trustees eor instructions. Held: that no part of the said sum of $25,000 can be used for any purpose but the erection of buildings, and that the Trustees proceed at once to purchase the ground and erect the buildings required.

ON EXCEPTIONS PROM THE CIRCUIT COURT OP THIRD JUDICIAL DISTRICT, NOVEMBER TERM, 1878. A judgment in a District Court not having been docketed in the office of the Clerk of the Supreme Court, the execution issued thereon and Sheriff’s sale of the land attached are Illegal and void. In this Kingdom a judgment of a Court of Record is not a Hen upon real estate in the nature of a subsisting encumbrance.

HEARD BY FULL COURT BY CONSENT — JURY BEING WAIVED. Held: that notes and securities in this country owned by non-residents have a situs here, and are properly taxed; Also, held, the fact that the mortgaged property is also taxed does not make the tax on the credit thus secured a case of double taxation.

The offestse of SMUGGLING opium is punishable only according to Chapter LVT, of the Laws of 1874, Section 1, and Chapter LXIII, of the Laws of 1876, and not under the general Jaw against smuggling, L e. Chapter LXX, of the Penal Code.

The CONVICTION op a person holding a retail liquor license, of the offense of smuggling opium, is not a “contribution to the violation of a (any) law of this Kingdom,” as contemplated and intended to be covered by the terms of the licensee’s bond, it not being shown that the licensee made his business contribute towards the violation of any law.

A party may BRING!- an action to test- the legality of the impounding of his animals, though he does not procure the release of the animals from the pound. Held: that until this agreement was rescinded, the animals of one party on the land of the other were not in trespass, and the impounding of animals so taken is illegal.

ON EXCEPTIONS. The plaintiff’s Ancestor had parted with the possession of the land in question by a parol exchange, under which defendant held possession for over twenty'years ; Held, that plaintiff… Held: that plaintiff could not recover it in ejectment.

Money loaned by a married woman during coverture, cannot be recovered in an action by the widow.-after the husband’s death. The debt not being in law due the widow, it is not revived to her by a promise to pay it.

ON EXCEPTIONS. The plaintiff tícoüght it sufficient to prove he Was'“'cousin” to the person last seized, not proving the exact genealogy to establish this. Held: that a new trial should be granted in order to further the ends of justice.

Against a good title by inheritance to land which, prior to defendant’s occupation! five years before the action was commenced,, was unfenced, uncultivated and not in the actual… Held: a title by prescription not shown. It being uncertain on the proofs whether the house and cane of defendant were on this land, the trial Court left the question of the title to the improvements open between the parties; Held, that the judgment was not erroneous, being dual as to the land.

The land owner claimed damages for the trespass of the single day when the animals were arrested and recovered, and brought a second suit for damages, for pasturing the animals for about six months;… Held: the second suit must be dismissed on the ground of res adjuclicata.

MOTION IN ARREST 0E JUDGMENT HEARD BY BULL COURT BY CONSENT. Held: that the discretion of the Court in discharging the jury after seventeen hours of deliberation was not subject to review; Also, that such discharge of the jury did not operate as an acquittal of defendant; Also, such a matter should properly have 'been raised by a plea in bar at the second trial.

By the statutes of descent, the inheritance of collaterals terminates with the brothers and sisters of the parents of the intestate and their direct descendants. Plaintiff’s grandfather being brother to intestate’s grandmother, he as intestate’s second cousin cannot inherit from her. The relationship of grand-uncle to a desceased intestate is not an inheriting relationship.- Semble. A grandfather cannot inherit from his grandson.

In this case the relationship relied upon by .the plaintiff is that of grand-uncle to the person who died last seized. The reasoning in .the case of Makea, k., vs. Nalua, k., will apply, and therefore judgment must be entered for the defendant, non obstante veredicto.

submission of pacts under the civil code. Held: payment was a- condition precedent and the property did not pass to the purchaser’s assignees in bankruptcy.

EJECTMENT — ON WRIT 0E ERROR. THE parties to THE suit agreed to take a verdict for one-half of the land each,' Held, that a Writ of error will not lie to correct the mistake of the plaintiff in.… Held: that a Writ of error will not lie to correct the mistake of the plaintiff in. consenting to such a verdict.

OAHU, Thjg Fourth Section of an Act to Promote Fencing (page- 424 of the Civil Code), authorizes the Fence Commissioners, where in their opinion it is “inexpedient” to establish a fence between-… Held: that the expensiveness of the fence contemplated, in comparison with the value of the land, or the poverty of one landowner, do not render the erection of the fence “inexpedient.”

TRESPASS — ON APPEAL FROM THE POLICE COURT. The Statute of Limitations of real actions does not run against the holder of a grant to a tenant (kuleana) in favor of the owner ■of the land from which the kuleana is taken (konohiki), unless the possession of the konohiki of the kuleana is actual. The general possession by the konohiki of the ili or ahupuaa is not hostile to the owner of the kuleana.

This case is precisely similar in principle with that of Akowai vs. Lupong, and is against tbe same defendant. The' kuleana is awarded to Ai, who leased it to tbe plaintiff. It consists of 32-100 of an acre, and tbe crop taken by defendant from it amounted to 700 pounds of paddy. Damages $15 and costs. Judgment for the plaintiff. Appeal noted in both cases.

ON APPEAL. A document' in Hawaiian placing- defendant in charge of a tract of land as a “kahu, or superintendent, perpetually, from the 15th day of December, 1874,. reciting that the defendant was,… Held: that no life- estate was created in defendant,, but that' he was appointed plaintiff’s agent of this land with the obligation to account for rents and profits.

W. S. 'Conveyed his land to his brother J. S. by deed dated February 3, 1876, duly recorded. Held: the lease was not good as against the prior conveyance, a majority of the Court finding that J. S. had made no representation to plaintiffs to induce them to believe that the daughter of W. S. had authority to deal with the land; Also, an equity which would procure an injunction in equity could create an estoppel in law; Also, an…

ON EXCEPTIONS. The Plaintiffs and others were partners in a “Ditch Company,” having a concession from the Government of the right to take water front certain streams, and the company having… Held: that they were not riparian proprietors, and, they not having treated their interest in the water from the ditch as appurtenant . to their land, the property of the Ditch Company was rightly taxed as a distinct piece of property.

ON APPEAL. Where the plaintiffs conveyed to the defendant half the real estate left by his wife, because they supposed he was entitled to inherit it as her husband, and by law he was-not so entitled,… Held: that the plaintiffs are entitled to relief against the mistake, but that a lease executed by defendant after the conveyance to> him, to lessees without notice of plaintiffs' rights, shall stand,, they attorning to the plaintiffs'.

On exceptions to the ruling of the court, An agreement by defendant to endorse bills drawn by His Majesty the King in favor of the plaintiffs to the amount of about $8,000, when presented by Bishop & Co.-, in consideration of a, commission of 12| per cent, for guaranteeing the said amount, With further agreement that His Majesty will take all goods sent 'him by said plaintiffs, where from the facts it appears that goods of said plaintiffs to the amount of £1,106 2s. were…

The guaIvDIANs kept their wards’ funds in their business, crediting-no interest and expended the principal in maintaining the wards. Held, that this was without authority. Held: that this was without authority. The guardians ordered to pay over to the wards the principal sum charged to themselves when the trust began, less commissions. The principles of Rosa B. Duncan’s case reaffirmed. BEFORE McCÜLLY, J., IN CHAMBERS.

ON QuESTION RESERVED. The Plaintij'i' was the issue of a woman by a man not her husband, he being married to another woman. Held: that the Act of 1866, that children born out ’of wedlock are rendered legitimate on the marriage of the parents with each other, does not apply to this case, and the plaintiff being the offspring of #n adulterous intercourse is not legitimate, and cannot inherit from her putative father.

ON EXCEPTIONS. A judgment was rendered in the Probate Court that all the parties-to this suit are heirs at law of O'. Held: conclusive as-to the relationship thus established. Kealii vs-Bishop, 3 Haw. Rep., 546, reaffirmed.

The Circuit and District Courts have concurrent jurisdiction in actions claiming consequential damages where the- ad damnum does not exceed two hundred! dollars.

A brother of one of the jurors drawn to try a case for selling liquor without a license had offered a reward to the prosecuting witness for the detection of any person guilty of this offense in the neighborhood ; Hjbud, that the juror was not disqualified, he having answered that he was not thereby biased.

ON EXCEPTIONS. The trial. Justice, considered counter affidavits-filed against the motion for new trial on the ground of newly-discovered evidence ; Held, counter affidavits may be filed to throw… Held: counter affidavits may be filed to throw light upon the question as to whether the evidence is in fact newly discovered and not accessible to the party at the trial-upon the-exercise of reasonable diligence.

ON EXCEPTIONS. IN action to recover the amount of a policy of life insurance, the Court refused to rule, on a motion for a non-suit, that the plaintiff could not recover, inasmuch as she- had not… Held: no error, as the burden is on the defendant to show that the representations were untrue.

ON ARPEAR. Opium was smuggled from a vessel. It appearing to the Court that the facts in evidence did not exculpate the mate from complicity with and guilty knowledge of the transaction, the vessel was condemned.

An Act of the Legislature providing for the erection of public laundries, forbidding tbe carrying on of tbe business of laundry keeping or washing for hire within a circuit of three miles from the junction of Nuuanu and King streets, in Honolulu, is an exercise of the police powers of the State with regard to the comfort,, welfare and safety of society, and is constitutional.

The PLAINTIFF CLAIMED in his declaration a “life estate with right of present possession;” the evidence showed that the estate to which the plaintiff was entitled was during the joint lives of A. B.… Held: that the declaration claiming a life estate, merely meant an estate for his own life, and a verdict for plaintiff could not be sustained on the evidence; Also, that it was too late to amend the declaration in the Appellate Court. Non-suit ordered.

ON EXCEPTIONS. The words in a deed in the Hawaiian language, “ Ka aiha kulá a pau o Kahanui, ahupuaa ma Molokai, ma ko maua kuleana mahele hoi, construed to mean, “the entire kula (dryland) of the ahupuaa of Kahanui on Molokai, according to our right or share therein,” that is, “our share in the land of Kahanui.”

ON EXCEPTIONS. While a TRE&criptive eight by adverse possession may be acquired in one piece of land without regard to the holding of other parcels granted bythe same royal patent, it is not error, in an action of ejeetment for one piece of land, to consider evidence relating-.to another piece held under the same royal patent, where the acts of possession relied on as to the piece not sued for were involved with the .facts relating to the piece claimed in the declaration.

The evidence showed that the parties plaintiff and defendant were . co-heirs and tenants in common, and that the plaintiffs had never been ousted by the-defendants;' the Court charged the jury that… Held: no error, as the-evidence was conclusive that thei’e had been no ouster and that the plaintiffs- were co-heirs.

Where repairs have been made or necessaries supplied to- a foreign ship, the general maritime law gives the party furnishing same a lien upon the ship itself for his security. He may enforce the same by a libel in rem on the ship, and even though the owner be present, if the credit was in fact given to the vessel. A Justice of the Supreme Court is a Court having admiralty and maritime jurisdiction.

ON EXCEPTIONS. The plaintiff sought to recover $19,800, being amount of principal and interest claimed due on two promissory notes made by defendant dated October 1, 1872. Held: that the agreement of February 17,. 1875, on the evidence under the pleadings, was to be treated as a nullity, and that the agreement of September 11, 1877, being favorable to defendant, was-properly executed under the-power of attorney, and the verdict of the jury cannot be disturbed.

ON EXCEPTIONS TO RULING OF CHIEF JUSTICE HARRIS ON 'THE 'DEFENDANT’S PLEA. The Minister of Interior brought an action to recover rents collected by defendant’s intestate from Government lands. Held: that the statute is no bar to a claim by the Government.

on exceetions.- TRe intestate Samuel L. Lewis was insured' by the defendant and in his contract made a warranty'when the policy was issued that,.(1st), he “had not been afflicted since childhood with… Held: that the warranty in that respect was broken. The warranty that he was then in good health was also broken.- Judgment ordered for defendants.

on exceptions.. A firm which owed more than the-value of their property, mortgaged it all to secure a creditor whose debt' was overdue-and'who knew the firm was insolvent. Held: the mortgage so taken was void as against other creditors.

The Trustees.appointed under the will of His late Majesty Luna-lilo have no power to lease the real estate, but must sell.the same.

ON APPEAL. Hpecific performance decreed of an agreement for a lease' unrecorded, notwithstanding that a subsequent lease for the samfe land was recorded,- it being shown that ’the lessee had notice of the prior agreement.

The Acts op 30th December, 1864, and 23d June, 1868,, giving to the King in Privy Council the authority to make rules- and regulations for the good government and control of immigrants and constituting a Board of Immigration to superintend, the introduction of immigrants are constitutional.. The regulations, quoted at length in the opinion, made in pursuance of this authority, are constitutional.

on APPEAL. M DEED to THE RESPONDENTS, and a will in favor of- the wife,, wens procured to he signed by the complainant, when he was weak in mind and body, from long continued… Held: on the facts proved, that the complainant intended to dispose of all his property by will, to take effect after his- death, and not a deed, and, consequently, acts of complainant tending to show ratification must be treated as ratification at what was in. his mind, i. e„ a will and not a deed.

ON EXCEPTIONS. A Vessel was INSURED against total loss on a policy Which expired June 6th, at midnight. Held: no actual total loss shown; and as she was not abandoned to the underwriters while the policy Was in force, there was no constructive'total loss. The verdict being for plaintiff, new trial ordered.

Turkeys whose remote PARENTS were brought to this Kingdom, running wild on the land of G. S., not being in his custody, control or possession, are not the subjects of larceny.

on exceptions from Circuit court of fourth judicial circuit. The defendant was convicted in the District Court of larceny in the night time of property over the value of $25. Held: as the offense was larceny of the second degree, over which the District Court h'ad jurisdiction only to examine and commit for trial, the Circuit Court had no jurisdiction to try the case on appeal.

The DEFENDANTS’ aNcestoe, previous to his purchase of the land of Kahaluu, agreed with the plaintiffs’ grantor to sell him a portion of the land at the same price per acre paid for it, and made a… Held: that neither party has a title by prescription to the use of the water, sufficient' time not having elapsed; that plaintiffs are entitled to use the water in their ditch for any purpose they see • fit, and that the complaint against the defendants should be-dismissed.

<p>ON APPEAL EROM THE COMMISSIONERS OE PRIVATE WATS EOR Honolulu.</p> <p>A permissive use of a right of way will not create an easement, however-long continued.</p>

ON EXCEPTIONS TO A RULING SUSTAINING THE DEMURRER- In an action against the indorser of a promissory note, the com.plaint, in order to hold the indorser, should contain either an-averment of demand on the maker and his non-payment,, and notice of the dishonor to the indorser,,or the excuse for the nonperformance of these conditions; Copies of promissory notes merely-fastened to the complaint, and not referred to therein as annexed to and to form a part of the complaint, are…

HEARD BY THE COURT, JURY BEING WAIVED, A body OF over 700 Chinese immigrants were taken from the steamer Séptima, to be kept in quarantine on shore, having or having had the small-pox among them. Held: that these words in the bond cover the bill of the physician for medical attendance in inspecting the men, and the amount paid guards employed to maintain the quarantine.

'The plaintiff, having deposited $500 with defendant as stakeholder, the amount of a bet with M. on a horse race, demanded the money to… Held: that the defendant as stakeholder was a mere depositary with authority to deliver it over on the proposed contingency, and this authority being revoked the money remains a deposit to the use of the depositor, and plaintiff can recover it in an action for money had and received ; Also, that the jury were not authorized to consider the…

The dependants being Hawaiians by birth made a contract in writing in the Hawaiian language to work for plaintiffs, who were also of Hawaiian birth. • ■ The Act oí June, 1868, required that all… Held: this law did not require that such contract should be made in English where both parties were of Hawaiian birth.

Justice op this Couet had tried the ease in' the Intermediary-Court and had rendered a Judgment which was appealed to a jury presided overby the same… Held: that Section 820 of the Civil Code and Article 72 of the Constitution, that “No Judge or Magistrate can sit alone on an appeal or new trial in any case on which he may have given a previous judgment,” do not apply to such a case, and such Justice is not disqualified to preside alone over the jury which retries the facts.

ON. EXCEPTIONS.. Ti-ijske is-No. appeal on the-faets from a decree of a Justice of the Supreme Court sitting- at term on a matter: of divorce; but exceptions will lie as in other eases.

on APPEAL, All THE FAR-TiEs to this suit claimed in the Probate Court to be heirs of Charles Kanaina, deceased, through Kaneikolia, his aunt. Held: the question as to Who were heirs of Kaneikolia was still open. Demurrer overruled.

ON EXCEPTIONS.- The list of 48 jurors for the term had been-properly drawn.-. The return of the Marshal to the venire showed that seven had not been summoned, being out of the jurisdiction. Held: that the objection to the jury on this ground was properly overruled.

ON EXCEPTIONS. An action was brought to recover money paid by plaintiff to defendant as rent in advance for land under a written lease. Held: as both parties were in jpari delicto, and the contract executed, the plaintiff cannot recover. In this ease the plaintiff seeks to avoid an executed contract in itself fraudulent. This differs from the ease where a party seeks to affirm an illegal contract still executory.

O'n exceptions to a- Judgment of a Justice of the Supreme Court in' a divorce case, as against evidence; it appearing' that there was* evidence to sustain the decree, the*exceptions wez*e overruled.

0N EXCEPTIONS. In divorce cases under the Act of 1870 and the amendment of 1878,-there is no appeal on the facts as found by a Justice of this Court sitting in the Circuit Court. There is a right Of exception on the-law to the Supreme Court in Banco ; When an exception is taken to a decree in divorce as against the evidence, the Appellate Court will only examine the evidence to ascertain whether or not there is evidence to sustain the decree made.

®N EXCEPTIONS.. A verdict Was rendered October 11th. Held: that the evidence could not be considered, since a motion for new trial on the ground of newly discovered evidence was not filed in ten days after the verdict. Section 1156 of the Civil Code is imperative as to time of filing such motion.

ON EXCEPTIONS. A petition in bankruptcy sworn to by an attorney in fact was properly sworn to Where the power authorizes the attorney “to take all lawful mean's by suit or otherwise for the recovery… Held: this return does not admit property to be the plaintiff’s. But if so, defendant owed no duty to plaintiff and his admission is not a conclusive admission.

. The defendant, over whose land a right of way was claimed by plaintiff, having dug away and reduced in width the banks between kalo patches anciently used by plaintiff and his grantors as a right of way, the Court awarded him a right of way by necessity.through another and more convenient portion of defendant’s land.

<p>ON EXCEPTIONS FROM THE THIRD CIRCUIT.</p> <p>A seal is not essential to the validity of an instrument in writing for the conveyance of land.</p>

The plaintiff claimed under a royal patent to Paewahine, dated July 19, 1862, in confirmation of the “Mahele” of 1848, and of an award of the Minister of Interior dated January 15,1882, granting… Held: it was the intention of the patent to Jose 'to convey only the remaining or eastern half of the land. Also, that in case of conflict the title to Paewahine should prevail.

A rule of this company that no owner should rent out the right of pasturage without the consent of the manager ; Held, such rule, until rescinded, was binding upon the owners and' lessees having… Held: such rule, until rescinded, was binding upon the owners and' lessees having notice.

ON EXCEPTIONS. The Complaint set forth a written agreement dated October 22, 1881, reciting the receipt of the first annual premium for a policy of' life-insurance, application for which was made to… Held: the contract was not ambiguous and as no time was expressed therein when the money should be refunded, the law implies that it must be a reasonable time. Parol contemporaneous evidence not admitted to vary or contradict a written agreement.

ON EXCEPTIONS. IN an action for malicious arrest the Court charged the -jury, tliat if they found defendant was not actuated by malice the verdict must be for defendant ; Held, this instruction,… Held: this instruction, given without qualification and definition of legal malice, was likely to mislead the jury and so a new trial ordered.

SUBMISSION 0E CASE WITHOUT ACTION.- TAe- statutes requiring- notice by advertisement and sale at public auction of Government lands and property and leases thereof, do not apply to the Hawaiian Hotel property.

ON EXCEPTIONS. The plaintiff claimed to recover one undivided half of the lands described of which he showed that he was tenant' in common with defendants, and of which he alleged the defendants had… Held: this must mean also that they have taken this exclusive possession. At the close of the plaintiff’s testimony the defendants moved for non-suit on the ground that there Was no evidence'that defendants had had exclusive possession.

<p>There being sufficient evidence to sustain the verdict a new trial refused.</p>

ON EXCEPTIONS. An agreement to discharge the defendants’ indebtedness in consideration of the surrender by defendant of all his property to plaintiffs is an accord, and if executed by delivery of the property there is a satisfaction which is a complete defense to an action to recover the indebtedness. i-

ON EXCEPTIONS. A record oe an estate in Probate containing evidence material ,to ■ plaintiff’s case was offered by plaintiff after the… Held: no error. The Court charged, “ that if one living on land by consent of .the owner and while so living began to hold adversely to the owner,, in order to derive title by twenty years adverse possession the owner must have notice of the beginning of his adverse holding Held, no error, it being in accord with Kaaihue ■ v. Crabbe, .3;…

ON EXCEPTIONS. Written agreements made by parties owning land in common, in regard to the management of their property, should be enforced by the Courts as far as possible. Held: provided the luna or manager was asked; Held, to mean that a special meeting for the transaction of business could be called by a majority of the members, in case the luna had been asked to do so and had refused.

ON EXCEPTIONS. The dependant had legally assigned his right to the proceeds of certain sugar cane in the hands of the garnishee to C. A.; Held, that the garnishee must be discharged. Held: that the garnishee must be discharged.

Land, the title to which was in Mrs. Eugenia. Held: that the surplus was reduced, with the consent of Mrs. Briggs, to personalty, and as such having been demanded by Robert Briggs, it was his property and liable for his debts.

A person whose relationship to the intestate is that of great uncle cannot inherit under our statute of descent — following Makea v. Nalua, October, 3879. The rule of stare decisis does not authorize the Court in this case to reverse Makea v. Nalua, but this is a matter forlegislative action.

ON- APPEAL. A bill in' equity alleging that a deed had’ been procured to be made by a grantor by undue influence and false representations and under the belief that it was a will devising his land to all his heirs at law, and praying for an injunction against defendants taking possession of the land under a judgment previously obtained, and' that the deed may be delivered up for cancellation, will not sustain, under the prayer for general relief (the proofs having failed), a…

ON APPEAL. H. K. and S. W. W. both, apparently being heirs at law of decedent, were appointed administrators. Held: the Probate Court had no jurisdiction to decide upon the merits of the claim. H. K. must resign as administrator and bring his suit at law, and if he recovers S. W. W. must proceed with the order of sale of the real estate.

A DEFENDANT was indicted for forgery of an endorsement on a draft with a count, for uttering the same knowing it to be forged. Held: the Verdict of guilty must stand.

In a libel against a vessel- trading between the ports of Honolulu and San Francisco, the master was represented by counsel and left port having given a bond to respond to the judgment. Held: respondent was not allowed ten days after his return to port to complete his appeal. Notice to attorney is notice to client..

ON APPEAL EROM THE COMMISSIONERS OE WATER RIGHTS, A STONE DAM was built by defendant across a natural stream to turn the water, to which they were entitled by prescription, on to. their land. The plaintiffs were entitled to water from another source and only to such water from this stream as escaped through and under the. old dam of defendants. The Court declined to order the dam to be removed, inasmuch- as the same quantity of water escaped through the dam as formerly.

ON APPEAL. The sole g-bounds of belief in equity against a judgment of a Court of law are for accident, fraud, mistake or surprise, and where, on account of one or more of these causes, it would be against conscience to execute the judgment. A judgment at law should not be lightly interfered with in equity.

t)N EXCEPTIONS. The DEFENDANTS were tried together with Aki for the offense oí having opium in possession. Held: that a joint trial did not amount to a charge of a joint offense, and that the defendants were properly tried together.

AN INSTRUMENT conveying land in the form of a deed from husband to wife, having been déclared by the maker to be a will and that it should take effect after his death, being attested by three… Held: to be properly construed as a will, and defendant allowed to propound it as such before the Probate Court having jurisdiction.

ON APPEAL. A deed was executed conveying land to the plaintiff's moopuna (grandson) in consideration of the grantor’s affection for him and the sum of $5 ; Held, that the grantor was bound by the… Held: that the grantor was bound by the recital. By the deed the title was to vest in defendant on plaintiff’s death, he reserving a life interest in the land. Held, that such a deed is valid and takes effect according to its terms.

ON APPEAL. A bill IN equity was brought' to'compel the defendant to- accept payment of a mortgage and surrender the premises, which alleged mortgage was in the form of a deed and a separate defeasance deed. A majority of the Court found that the defeasance was fraudulent and rendered'judgment for the defendant.

on APPEAL. The pacts show T. Spencer insolvent on December 12, 1876. Held: void as against the plaintiffs, assignees for all ‘the creditors of T. S. who are prior and subsequent. Whereas here the debtor and grantor was insolvent when he made the grant, no principle of estoppel by consent could be applied to him.

ON APPEAL EROM GIRCUIT JUDGE EOUKTH JÜDICIAL CIRCUIT ON POINTS 0E LAW. The dependants contracted to work for plaintiff. Held: that the whole plantation was substantially sold and intended to be sold, and, therefore, that the case of Waihee Plantation v.s. Kalapu, 3d Haw. Rep., 769, is decisive of this ease for the defendants, and they cannot be compelled to work on this plantation.

ON EXCEPTIONS. The occupation of land of a decedent m this Kingdom, in 1819; before the enactment of the statutes of descent, by a widow, is not necessarily as dowress and may be adverse to the heirs. The question, as to whether such possession is adverse or not, should be left to the jury.

ON EXCEPTIONS. A verdict sustained, having sufficient evidence to support it. The fact that the plaintiffs now claiming heirs of Kane, did not contest proceedings in probate in Kane’s estate, not having been made parties, does not bind them. A statement by one plaintiff that she was not a party to the suit nor was she aware of her relationship to Kane is not sufficient to set aside a verdict in her favor.

ON EXCEPTIONS. I-N an action nor damages on false representations, it was proved that at tbe public sale of land at auction the defendant offered for sale the Ahupuaa of Waikapu, subject to alease to the plaintiff having five years yet to run. At the sale defendant exhibited a map which included a certain specific tract which hafi been leased to the plaintiff, and of which he at the time of the sale held possession. The sale was made as including such specific tract.

The defendant contracted to labor for the plaintiff on Kauai for thirty-six months. Held: that he was bound to work as required.

ON EXCEPTIONS. The plaintiff in ejectment claimed as daughter and sole heir of the patentee of the land in question. The prooi was mainly in the nature of pedigree. It was sufficient to establish the valid marriage of the plaintiff’s parents, and that they lived together as husband and wife, and the plaintiff’s legitimacy. ’.It was not necessary in the case for the plaintiff to prove affirmatively that her ancestor died intestate.

ON APPEAL. An intention of G. W. to give his brother, E. G. W.-, an interest ’in his business, does not make him a partner. The fact that E. G. W. held G. W.’s power of attorney and signed his brother’s name as his attorney in fact” considered as evidence to show no partnership. The use of the words “¡us” and “we” by G. W., in his business correspondence with E. G. W., is not sufficient proof of partnership between.them. ■> Opinion of the Chancellor appealed from.

ON APPEAL. The plaintiff and defendants entered into partnership September 1, 1871, as general shipping and commission merchants,… Held: under the contract, that defendants had a right to write off these supposed losses, believed by them to be final, for the purposes of periodical accounting and to conform accounts current thereto ; and that, so made up, the account showed that plaintiff had been largely overpaid the amount at.principal. due. him.; Held, further, that…

ON EXCEPTIONS. Motion for new trial as against the evidence. Held not against evidence, and that motion for new trial for newly discovered evidence not having been first presented to the Justice who presided at 'the trial was irregular, but if allowed to be argued the evidence offered was cumulative and nothing showed, but that it might have been obtained with due diligence at the trial.

on exceptions. The dependant, in an action of assumpsit (there having been no verdict after two trials), paid into Court the full amount due plaintiff as charged in his complaint, and thereafter a… Held: an unequivocal admission of the whole claim, and to amount to a cognovit or confession of judgment, upon which, under our law, on motion in Court the plaintiff was entitled to judgment for the whole sum paid in, with full costs.

ON EXCEPTIONS. Action op assumpsit for board and also for small items, proper charges against administrator. Held: that the plaintiff could not recover, the Court having directed the administrator to pay the other small items which were not enough to carry costs in this Court.

The plaintiffs claim in ejectment. The defense is the Statute of Limitations. Held: that as such administrator he was not thereby a trustee for the plaintiffs and their privies, so that the Statute of Limitations did not run as to them ; also held, that the defense of the Statute of Limitations was fully made out.

The dependants demurred to the bill on the ground of laches, and that the Statute of Limitations was shown to have run. Held: that Moehonuar was not a trustee, and that the plaintiffs cannot recover because of laches, and because the statute has. run, which facts appear in the bill.

A search warrant was issued by the defendant as District and Police Justice upon an affidavit that the affiant had probable cause to suspect, and did suspect that opium was concealed on the premises… Held: on appeal by defendant Biokerton only, adopting opinion of Chief Justice below, that the warrant was improperly issued and the defendant Biokerton was liable for damages.

Equity will intervene to enforce a verbal contract for tlie sale of lands, notwithstanding the Statute of Frauds, where one party-lias done certain acts in part execution, and upon the faith of the contract, with the knowledge and consent of the other; if the contract is so far executed that for the latter to repudiate it would amount to a lraud upon the other.

Where after verdict a motion is made before the Judge who presided at the jury trial for a new trial, on the ground that the verdict is contrary to the evidence, a “ bill of exceptions ” is not necessary. When, however, this motion has been ruled upon, a bill of exceptions is necessary in order to pass the case to the Appellate Court. Such a bill of exceptions should embody the evidence.

A CONTRACT op guaranty was executed by defendant that C. L. T. would faithfully carry out and perform a contract made by C. L. T. with plaintiff for teaming two crops of sugar cane, and that… Held: no error ; as the bill for teaming was disputed there was no default and the sugar was seized at C. 1,. T’s. risk.

Section 1,065 of the Civil Code prescribing that the Supreme Court shall have the power to admit as practitioners in the Courts such persons “being Hawaiian subjects,” etc., etc., is not declaratory but mandatory upon the Court. The petitioner, being otherwise qualified, not having been naturalized as a Hawaiian citizen refused admission to the Bar. The provisions of the British Treaty with this Kingdom do not conflict with the above statute.

ON EXCEPTIONS. Under the Act of 1874, restricting the importation and sale of opium, and the amendments thereto, the possession by a defendant of any appreciable quantity of opium for the purpose of smoking is an offense punishable.

on EXCEPTIONS. The TESTIMONY of a witness that he saw a royal patent in the- possession of the patentee is stronger evidence that the patentee was alive when the patent was issued, than the testimony of a witness that the patentee was dead prior to date of patent.

The bill and cross bill are to be taken together and treated as one cause. Defective allegations in the bill are aided by those in the cross bill. In this cause there was enough to give jurisdiction. The death of one of several defendants before decree, but after the evidence was closed and submitted does not render decision made void or irregular.

A parol agreement for the exchange of lands will be compelled to ■ be executed, if it has been carried into effect with the knowledge and conserit of the other contracting party, so that it would be… Held: this was notice to defendants of plaintiff’s interest in the land

ON EXCEPTIONS. Where a husband and wife of pure Hawaiian blood were shown to have been iiving together for several years before and after the birth of a child by the wife, there being no' evidence… Held: after the expiration of the second term of ten years (1st April, 1878), there was a tenancy from year to year which terminated by a notice to quit.

A Police Justice having resigned on the 1.6th of August, entered a judgment on a case which had been fully submitted to him, on the 27th of August “ as of the 13th of August Held, the judgment was… Held: the judgment was rightly entered nunc pro tuno and was valid.

Where an appeal has been taken in a criminal case from a- convic- ' tion in a Police Court to the Supreme Court in Banco on a point of-law, and the defendant’s law is not sustained, the Supreme Court cannot modify the* sentence imposed below.

When the bill shows in an action to set aside a royal patent for fraud, that defendants claim possession under patentee, to whom patent was issued on or after June 6, 1855, and alleges no possession after the last date in any other than defendants, it shows that adverse possession and title are in the defendants, and, unexplained by allegations which do not appear in the bill, is conclusive against the plaintiff and the demurrer must be allowed.

Assumpsit upon an award will lie where there was a plain and clear v agreement to submit certain matters in difference to arbitration and where the arbitrator makes a decision after a hearing— finding a sum due from one party to the other — though the agreement to arbitrate, and the proceedings under it, do not follow the statute of arbitrations. The objection that the action ought to have been brought under Section 1,100 of the Civil Code is untenable.

<p>ON APPEAL.</p> <p>The title in land is conveyed by delivery of deed without registry thereof or entry by the grantee.</p>

jury WAIVED, A grantee under a second but prior recorded deed held not to have had notice of the prior unrecorded deed, or to have been put upon inquiry by reason of statements made to persons assisting the grantee under the second deed in purchasing the land, that some persons were cultivating the land under the prior grantee, it not being shown that this was brought to the knowledge of the grantee under the second deed.