Volume 5 — Hawaii Reports

<p>Appeal prom Commissioners op Water Eights.</p> <p>A Judgment of Water Commissioners, signed by only one of them, is void.</p>

Exceptions prom: Ruling op Austin, J. In an action for false imprisonment the Court refused defendant’s request to find on the question of probable cause, but left the same to the Jury ; held to be error, and a new trial ordered. Ah Cheu vs. Wong Kuai, 3 Hawaiian, 85, followed.

Equity Appeal erom the Decision op Judd, Chancellor. A manager of a sugar plantation owned by a corporation is not an officer of the corporation, and Quo Warranto does not lie to remove him : nor.would it afford the relief desired, even if he were an officer. Equity has jurisdiction by injunction to restrain assertion of doubtful rights in a manner productive of irreparable damage, as of a manager of a plantation interfering with the management after his removal.

Appeal erom the Decision oe Judd, Chancellor. In the absence of the Clerk of the Court from his office, a paper for filing should be taken to a Deputy Clerk, or left on the Clerk’s desk, and his attention called to it; if lost, meanwhile, it is at the risk of the person leaving it. Hie Court allows an appeal to be heard, in view of exceptional circumstances, although it was not perfected seasonably.

Exceptions to Rulings oe Austin, J., at Trial by Jury. In order to sustain a lost will, the jury must be satisfied, from preponderance of evidence, that the will was made and duly executed, and that its contents were substantially and in every essential respect as alleged. A lost will may be proved by competent secondary evidence; but the execution of a lost instrument need not be proved beyond a reasonable doubt. Dates need not be proved with exactness.

The Commissioners of Water Rights for the District of Honolulu having found that a certain dam in the “Kamoiliili” stream, called “Kikiakoi,” supplied water to the land of the appellant Pang Sam, and that a former owner of the springs and land had built such dam, and merely changed the location of the irrigating canal, and that the springs and land were still under the same ownership, and having decided upon these facts that the Kikiakoi dam was not entitled to water from…

Exceptions erom Circuit Court, Third Judicial Circuit. In order to sustain a conviction for knowingly uttering a forged check, the instrument need not be so made that if genuine it would be valid. A check informally and awkwardly drawn held to be valid, when coupled with the statement of defendant, the endorser, that it was genuine. The Court will take judicial notice of the condition of communities on the different islands, and their modes of transacting business.

Appeal ebom Police Coubt, Honolulu. Where a statute prescribes a penalty for a breach of its provisions, and provides that the Fire Marshal of Honolulu shall prosecute for all violations of such statute, and pay over all fines collected to the Fire Department for its benefit; held that an action for breach of the statute should not be in the form of a criminal prosecution. Actions for penalties are civil actions in form and substance.

Appeal prom Police Court, H£lo. An attorney cannot recover of the husband a fee for his legal services in defending the wife in a criminal suit brought at the instance of the husband against the wife for desertion. Such legal services are not necessaries, nor do they come under the head of alimony. Judgment of lower Court affirmed.

Exceptions eeom Circuit Court, Second Judicial Circuit. The Court declines to disturb a verdict where the evidence before the jury was sufficient to sustain it.

Citizens and taxpayers may bring mandamus against a public officer. Mandamus lies against a Cabinet Minister, to compel the performance of purely ministerial duties. Under the Loan Act of 1882, which prescribes that Government bonds, payable in United States gold or its equivalent, may be issued at not less than par, it is illegal to issue the bonds for Hawaiian silver half-dollars of less intrinsic value than their face value in United States gold coin.

. Appeal prom Judgment entered upon an award op Arbitrators. An award made bona fide and in accordance with the terms of the submission, held to be conclusive on the parties. A clause in the submission allowing an appeal, the appellate court to fix costs of the appeal, does not take the case out of the Statute. Sections of the Code, referred to in the decision, are as follows : §933.

Appeal erom Police Justice, Honolulu. Where a statute prescribes that a person violating the provisions of such statute, after written notice, shall be liable to a penalty, a printed circular, warning all persons against violations, but not calling attention to any specific breach found to exist, and not directing any specific alterations, is- not a compliance with the-statute.

Appeal ebom the decision oe Abbitbatobs on awabd. If the Court is satisfied that an award is within the terms of the submission, it will not be set aside. The Court cannot reconsider the evidence upon questions properly submitted to the arbitrators. The presumption in favor of an award will be that the arbitrators rightly performed their duties.

Appeal prom the Decision op the Chancellor. A bill to set aside the second of two alleged Royal Patents for the same land, dismissed, it appearing that the so-called second patent was the original, and that the copy made of it in the-Land Office Register had been fraudulently altered. Poverty is not a legal excuse for laches. Courts of Equity follow the statute of limitations.

Exceptions from the ruling of McCully, J. An agreement contained the following clause : “And it is also further “ agreed in consideration of the distance from said mill that “ the parties of the first part their heirs and assigns will pay “ to Charles A. Chapin his heirs and assigns the sum of three “ (3.00) dollars per ton on all the sugar produced from thirty-seven “ and one-half (37}) acres of cane, and rattoons of each crop, dur- “ ingthe above term of ten years, said…

Exceptions prom the decision of the Chief Justice. An account in a savings bank pass-book was headed “B. & Co. in account with L. Ki to order of his father, K.,” and it was a rule of the bank to pay only to the person to whose order the deposit was payable, and only on presentation of pass-book: the bank paid it to the administrator of K. (the father), who held the pass book: held that the administrator of the son could not recover the deposit from the bank.

, Sustaining Demurrer. A statute providing an adequate remedy for private parties damaged by the taking of their land for public use, supersedes the remedy at common law.

Exceptions prom the Decision op Judd, O. J. A Cabinet Minister, who holds the office of Attorney-General ad interim, held, following Bex vs. Kanaau, 3 Hawn., 669, to be de facto duly qualified to… Held: following Bex vs. Kanaau, 3 Hawn., 669, to be de facto duly qualified to present an indictment: whether he is Attorney-General de jure, will not be considered on motion to quash an indictment drawn by him.

Exceptions. After lapse of time, and under circumstances of assent and posssession^ the testimony of a grantor will not be held sufficient in law to set aside his deed. The equitable doctrine of laches may reasonably be applied to an ejectment suit depending on the validity of a deed. The Court need not submit the case to the jury, if there is no evidence upon which the jury can find a verdict for the party who has the burden of proof.

Exceptions prom Circuit Court, Third Judicial Circuit. Where the prosecuting witness, after the trial, paid for tlie dinner of some of the jurors, at their request; held not to be misconduct of sufficient gravity to vitiate the verdict. Kcdaeohehoi vs. Kahanu, 4 Hawn., 431, distinguished. Cause of a juror’s hostility, if known to defendant, must be made a ground of challenge before the juror is sworn. New trial refused.

Exceptions from Judgment of Austin, J., on Demurrer. Where a complaint in an action on a contract was demurred to because the contract was verbal and not to be performed within a year; held that it must affirmatively appear from the contract and surrounding circumstances that it could not be performed in a year.

, sustaining Demurrer. By Section 191 of the Civil Code it is provided that ‘‘The Minister of “ the Interior shall have the general charge of the*pipes or con- ‘‘ duits of water… Held: affirming the decision of Austin, J., that the supplying or withholding water for public and private use rests in the discretion of the Minister: and in the exercise of that discretion he is not liable, at the suit of a private citizen, for damage caused by insufficient water supply at a fire.

Mandamus. On Appeal erom Austin, J. Mandamus lies to compel the Minister of the Interior to present to the King in Privy Council a petition for a charter of incorporation, that being a matter in which the statute does not allow him discretion. Judd, C. J., dissenting.

Appeal prom the Decision op McCully, J. By an agreement made between the defendants and the plaintiffs, the defendants agreed to rent to the plaintiffs certain rice lands, containing from 300 to 700 acres, for a term of five years, and to put the plaintiffs in possession of all over 300 acres when the plaintiffs’ manager should elect; the rent to be at the rate of $20 per acre. The agreement Contained a stipulation that a lease in duplicate should be thereafter executed.

Exceptions prom Ruling op Austin, J. The Boundary Commissioner for the Island of Oahu, unon settling the boundaries of the lands of Honouliuli, having, with the assent of all parties, received testimony as to the extent of the fishing rights claimed by the owner of the land, although he refused to award the right as claimed, as a right or as territory: Held that the owner of an adjoining land, although represented at the hearing, was not estopped from disputing the…

Appeal prom Commissioner op Boundaries. The evidence being very conflicting, and nearly evenly- balanced, the Court affirms the decision of the Commissioner appealed from. - Ex parte surveys, not followed by adverse possession, have little force as evidence of boundaries.

Exceptions prom Circuit Court, Third Judicial Circuit. Held: that the line discriminating between such false instruments as do not bear the semblance of that of which they are counterfeits, and those which do bear it, must be determined by the complexion of each case as it arises. The King vs. Heleliilii, ante page 16, followed.

The statute as to summary possession of land applies only where the relation of landlord and tenant exists. Kaaihue vs. Crabbe, 3 Hawn. 776, and Coney vs. Manele, 4 Hawn. 154, approved. Where a lease was made subject to a mortgage, and conditioned to be annulled on a foreclosure sale of the land: the vendee at foreclosure sale may bring the statutory proceeding for summary possession against the lessee.

Exceptions. In absence of legislation forbidding it, a corporation can sustain a suit beyond the jurisdiction wherein it was constituted. A Foreign Corporation, suing in this Kingdom, must set forth in its declaration that it has complied with the laws of the Kingdom as to foreign corporations. Forms of complaints given in the Code are only guides to pleaders, and departures from them are not fatal to the complaint.

Exceptions to Findings of Judd, C. J. An Appellate Court may in its discretion allow a reargument of a case, and correct manifest errors and mistakes in its decision rendered on the first argument. Held: on re-argument, that the deed might be so construed as not to defeat the grantee’s adverse claim. Slight proof of adverse possession held sufficient, considering the nature of the land in question.

Appeal prom Decision op Judd, C. J., in Admiralty. The meaning of the word “Quarantine” considered. Held: under the circumstances-, not to have been in quarantine during the time she lay outside the harbor, pending a controversy with the Board of Health, and under a prohibition by it to enter the harbor; and therefore not liable for expenses of-the Board of Health in guarding her.

Exceptions pbom Rulings op McCully, J. A lease of lands conveyed to husband and wife, and purporting to be made by them, but executed by the husband only, on which the wife received rent after the husband’s death : Held to have been ratified by the wife. Re-argument refused.

The Court has only appellate jurisdiction from decisions of Commissioners of Private Ways and Water Rights, and will not on appeal cpmplete a decision which was never made. The principal duty of Water Commissioners is to determine upon evidence and to define what were the ancient and prescriptive rights in controversy.

Holders of awards of the Land Commission are entitled to water for irrigating purposes from the stream in the land In which their kuleanas are situated. Tenants at sufferance under the konoliiki must look to him for their supply of water.

A reservation for life, by the grantor, of two houses on the land conveyed by him, is a reservation for life of the lots of land on which they stand. The lot conveyed was described as one-third of the land: Held that the lot intended to be sold should be considered as bounded by the fence separating it from the reserved lots, as the line dividing off an actual third would cut off the edge of a house erected almost entirely upon the part unsold, and rented to tenants.

Appeal erom the Decision oe the Chancellor. Kun Sai, of the firm of Kun Sai & Aming, prior to the bankruptcy of the firm, transferred his interest in certain property, not a partnership asset, to Ing Choi, the bookkeeper of the firmsuch transfer held void, as being in fraud of creditors.

The plaintiff sought to recover damages to his carriage and for loss of its use. occasioned by the furious and reckless driving by the defendant in a public street. The defendant offered to prove in defense that at the time of the accident the parties were returning late at night from a “hula” dance promoted contrary to law by the plaintiff. The Court below excluded the testimony. Held that such evidence afforded no defense, and that the Court below was right in excluding it.

<p>Appeals erom Circuit Judge, Third Judicial Circuit.</p> <p>Question Reserved.</p> <p>An appeal lies from a decision of a Circuit Judge at Chambers to the Supreme Court.</p>

Appeal erom Fornander, Circuit Judge, Sitting in Probate. A testator devised property to his daughter, to he held in trust for her by his executors, free from control of her husband, should she marry. Held: that a valid trust, to the separate use of the daughter, vested in the executors, to pay the income from the property to the daughter during her coverture.

An instrument in form of a deed, but intended by the maker to have effect only after his death, held properly construed as a will; approving Kapela vs, Hoohoku, 4 Hawn., 513. Although Probate Courts have jurisdiction to entertain a petition for revocation of probate of a will after the time for an appeal has lapsed, sufficient grounds should be alleged in the petition, and it must not be merely a method of gaining an appeal lost to the contestant by want of diligence.

Appeal prom Police Court, Honolulu. The defendant sold to the plaintiff the stock and goodwill of his business, and covenanted not to “enter into or carry on any retail business in Honolulu for three… Held: affirming the judgment of the Court below, that the penalty” was liquidated damages.

A person taking a Mahele Award of an Ili of land, described by metes and bounds, is precluded from claiming anything more as belonging to the Ili. Boundaries of Kewalo, 3 Hawn., 9, followed. The Court, upon consideration of the evidence before the Commissioner, finding that it sustained the appellant’s case, reverses the decision of the Commissioner.

Appeal prom Judgment on Award. An award under a submission of “ all matters in dispute of every name and nature between us now existing,” will not be set aside on the ground that an item has been omitted,, unless it is shown that the matter was brought to the notice of the arbitrators and they refused or neglected to pass upon it.

Exceptions prom Circuit Court, Fourth Judicial Circuit. Defendant was convicted of an assault with intent to commit rape upon a girl of 11J- years ; held that it is not a conclusive presumption of law that a girl over ten consented to the assault unless there is proof of resistance, outcries and immediate complaint.

Divorce Appeal. The technical law of default does not apply to a divorce suit; if the defendant has a defense, it is the duty of the Court to hear it.

<p>Opinion op the Justices op the Supreme Court to the Legislative Assembly op 1884, Upon the Law to Prevent the Spread op Leprosy.</p>

<p>Opinion oe the Justices oe the Supreme Court to the Legislative Assembly oe 1884, as to the Allegiance op Aliens and Denizens.</p>

Exceptions from Decision of the Chief Justice,, Overruling Motion for New Trial. There being evidence to support a verdict, the Court will not set the verdict aside. Affidavit of a juror as to a remark made in the jury room is inadmissible. The King vs. Kahalewai, 3 Hawn., 465, followed.

<p>Taxation of Costs,</p> <p>'Statutory attorney’s fees will not be taxed in a suit for divorce or separation.</p>

-Appeal prom Commissioners op Private Ways and Water Eights. A grantor?of land is entitled to a right of way by necessity, over the' land sold, to his remaining land. The Commissioners of Private Ways and Water Eights are authorized to make such decision as may in each particular case appear to-them to be just and equitable, but not contrary to general principles of law.

Taxation of Costs. Defendant having-, oil his appeal, reduced the amount recovered by-plaintiff one-fifth: Held, under Sec. 1013, Civil Code, that plaintiff must pay costs. Held: under Sec. 1013, Civil Code, that plaintiff must pay costs.

Taxation on Costs. Final liability to pay costs is not determined till final judgment. If a new trial is ordered, the party finally losing the ease must pay all the costs, notwithstanding he prevailed in the first trial.

Appeal erom Intermediary Court oe Oahu. A widow, in possession of her husband’s land by consent of his heirs, agreed that plaintiff should plant part of the land on shares ; before maturity of the… Held: that plaintiff was entitled to harvest the crop; but he, not having been evicted by a paramount title, cannot recover damages against the widow for breach of covenant.

Defendants, without disclosing their title, allowed plaintiff to lend money on mortgage of certain land, to which the mortgagor had apparently a good title; subsequently defendants recovered the land… Held: affirming the decision appealed from, that plaintiff could recover the amount of the loan and interest from defendants.

Appeal erom Decision oe the Chancellor. A trust deed made by plaintiff for benefit of his wife and children, and containing no power of revocation : Held, under the circumstances, not to be revocable… Held: under the circumstances, not to be revocable by plaintiff on the ground of mistake; the mistake, if any, being of law.

Appeal rrom Decision op Austin, J. In an action against a trustee for an accounting, on appeal by both parties from the decision of the lower Court, the Court affirms the judgment below. A trustee should keep accurate books of account; if not, every intendment of fact will be made against him. Trustees should he allowed reasonable compensation for their time and trouble.

Appeal prom Water Commissioners. There being nothing in the testimony or the appearance of the locality pointing strongly to the fact that defendant had made taro patches on ancient kula land; and there being no data for setting aside or modifying the decision of Commissioners of Water Eights; and there being reason for the conflict and uncertainty of the evidence; the Court confirms the award of the Commissioners.

Appeal prom Decision op the Chancello», Plaintiff alleges that by fraudulent representations she Was induced to make a deed to different grantees from those she intended, and that the latter have since died ; defendants demur, on the ground that the right of action lay in the parties Who had been defrauded! Held that plaintiff is the proper person to bring the suit, as the representatives of the grantees whom the plaintiff intended could not compel execution of a deed.

Appeal eeom Decision of the Chancellor. A bill by a grantor to set aside deed on the ground of fraudulent representations, dismissed. The Court will be exceedingly cautious about setting aside conveyances upon the ground of an ignorant misunderstanding.

Appeal prom Hart, Circuit Judge, Third Judicial Circuit. A labor contract, made in a foreign country, to be executed here, need not be acknowledged. A foreign law must be proved, like any other fact. A labor contract may be cancelled for the default or misdoings of the agents and overseers of the master. An overseer of contract labor, guilty of cruelty or misusage, is a “master,” and may be punished under the law prescribing pen alties for cruelty by master to servant.

Appeal prom Water Commissioners. Commissioners of Private Ways and Water Rights are not authorized to award damages for wrongful diversion of water ; but they have authority to make such orders as may be legitimate and necessary to the effectual enforcement of their judgment. They have authority to direct the removal of dams and other obstructions of water courses. On appeals from the decision of the Commissioners, new evidence may be introduced.

Exceptions to Rulings oe McCully, J. Ejectment under our statute is not merely a possessory action; it tries the title as well. It is enough to show that the persons in actual occupancy are holding under the adverse claimants in the suit. Where plaintiff claimed the whole land, but the verdict was for an undivided half; held the verdict was proper; foilowing Nahinai vs. Lai, 3 Hawn., 317.

Writ ok Error to Police Court, Honolulu. A Writ of Error lies from the Supreme Court to Police Courts. Ka-lakaua vs. Harris, 3 Hawn., 27, reversed. A writ of error brings up only errors of law which appear on the record ; an appeal may consider errors of fact as well as of law,. Voluntary bankruptcy of lessee is not a breach of covenant not to assign without consent of lessor.

<p>Appeal prom Water Commissioners.</p>

Exceptions prom Rulings op Austin, J. Defendant bought of plaintiff sixty shares in an incorporated company ; and five certificates of stock, representing said shares, were delivered to defendant,… Held: the sale was complete by the defendant accepting the five certificates, and was not rendered incomplete by the defendant returning the five certificates to be exchanged for one.

Exceptions from Rulings of Austin, J. Payment of rent to the Land Agent of the Commissioners of Crown Lands binds the Board. Receipt of rent by lessor, after breach of covenants of lease known to him, is a waiver of the breach. Assignee of the lessee may sue lessor for breach of covenant of quiet enjoyment.

Appeal erom Decision oe the Chiee Justice on Demurrer. Held: reversing the decision of the Chief Justice, that the time and manner of the publication complained of made it a libel; that action for a libel cannot be sustained, for it is the plaintiff’s own letter; and that damages cannot be severed, and classed partly as injuries by libel, and partly by unauthorized publication of a private…

Appeal prom decree op the Ci-iiep Justice Granting a Separation. Voluntary gifts and. assistance to the wife, from members of her own family, held not to be proof of the husband’s failure to support her. “ Cruelty” defined and held not proven in this case. Evans vs. Evans, 1 Hag. Con., 35 ; 4 Eng. Ecc., 310; followed. Decree appealed from, reversed; Judd, C. J., dissenting.

Appeal prom Decision op Austin, J. On a bill to set aside a sale made under a power contained in a mortgage ; held that a demand for payment of interest due, accompanied by threats to foreclose, is not equivalent to an entry, and there being no entry, as required by the power, the sale was invalid. Where the mortgage required three weeks’ notice of time and place of sale, a sale on the twentieth day after first publication of notice is invalid.

Opinion of the Justices of the Supreme Court to the Government, Under Article 70 of the Constitution, on the Act to Regulate the Currency. The Minister of Finance may substitute United States gold coin for Hawaiian silver, under Chap. VIII., Laws of 1884.

<p>Submission on Agreed Statement.</p>

<p>Complaint por Malpractice.</p> <p>Malpractice of certain attorneys reviewed and punished.</p>

<p>Complaint foe. Malfeasance.</p> <p>Alleged malfeasance of a District Judge reviewed.</p>

Exceptions to Findings oe Judd, G. J. In a hearing before Fence Commissioners to assess amount to be paid by a person who has neglected to comply with an order to fence, such person must have notice to attend; In the absence of such notice, an order of the Commissioners held to be invalid.

Appeal prom Order oe McCully, J., Admitting Will to Probate. An appellant from an order admitting a will to probate must show prima facie that he is an heir-at-law of the decedent. A third cousin cannot inherit under our statute. The Supreme Court has power, by statute, to make rules, and its rules, made pursuant to statute, are law. An appellant, who has lost the right of appeal, cannot transfer it to another.

Exceptions prom Rulings op McCully, J. There is no time limited within which a bill of exceptions, from, an order denying motion for new trial, must be presented. A bill of exceptions, referring to the Judge’s minutes for the evidence, though informal, is not improper. Exceptions can be taken from an order refusing a new trial.

Appeal erom Commissioners oe Private Ways. Held: affirming decision of the Commissioners, that plaintiffs were entitled to a right of way by necessity over defendant’s lot. Achí vs. Poní, ante 176, followed.

Exceptions prom Rulings op MoCully, J. Under plea of general issue, in ejectment, defendant may give evidence of any right under which he claims ; and a new trial will not be granted for surprise, where defendant at the trial set up claim of inheritance, having previously, in a conversation with plaintiff’s attorney, said he claimed by adverse possession.

Exceptions to Rulings of McCully, J. The law that a will cannot be proved after expiration of five years from death of the testator, does not apply to wills executed prior to 1859; Will of Nanino, 2 Hawn., 762, A document in form of a will, held to be a deed; and to be admissible in evidence under claim, of adverse possession.

Exceptions to Rulings oe McCully, J. The actual possession of land by a party, under an unrecorded deed, is constructive notice to a subsequent purchaser of the land, whose deed is recorded.

Rule to Show Cause. An appeal from a decree of separation was not perfected within the time prescribed by Rule of Court, but counsel for appellee waived objections, and the case was heard on appeal,… Held: distinguishing Paakuku vs. Komoikehuehu, 3 Hawn., 642, counsel had the right to make the waiver; it affected the jurisdiction of the Court as to the persons, not as to the subject matter.

Exceptions to Rulings op McCully, J. The grantee of the heirs of one of several joint plaintiffs in an action of ejectment, is estopped by the judgment therein, in a subsequent suit by such co-plaintiffs against him.

Appeal fbom Decision of Austin, J. The Court declines to set aside two deeds on the alleged ground of fraud practiced upon the grantor, an aged Hawaiian, feeble in mind and body ; there being no convincing proof that he was unduly influenced. Circumstances of mere suspicion, leading to no certain results, will not be deemed a sufficient ground to establish fraud.

The time for taking an appeal from a decision at Chambers runs from the date of the decree, not from date of the decision.

A deed made by a woman to her brother, just before her marriage, held to be in fraud of the husband’s rights, and set aside by the Court.

Submission. Revenue laws are to be construed strictly. A tax on premiums of insurance companies for “policies issued during the year,” held to apply only to new policies, not to annual premiums on a life policy.

Appeal prom Decision op McCully, J. Under the bankruptcy jurisdiction of the Supreme Court the assignees cannot be compelled to make a certain sale; the remedy is Specific Performance in Equity. Held: under the terms of the advertisement, that the bids must be for cash; that an offer of $100 more than the highest bid is invalid; and that the assignees cannot be compelled to accept the highest or any bid.

Exceptions prom Circuit Court, Third Judicial Circuit. A document held to be a deed and not a will, the intent being that the property should pass to the grantee immediately, notwithstanding the use of the word “ devise” (hooilina).

Exceptions to Rulings op McCully, J. There appearing evidence upon which the jury based their verdict, the Court cannot grant a new trial in order that the case may be presented by new counsel with more exactitude, no exceptions having been taken in the Court below covering the points on which a new trial is asked for. Although damages may appear excessive, the Court will not disturb the verdict if the damages are within estimates made by witnesses.

Appeal prom Decision op the Chancellor. A sale of shares of stock set aside for the fraud of the seller; it appearing that the seller made false representations as to the value of the stock, intending that the buyer should aet upon them, and the buyer acted upon them, although he could, by diligent enquiry, have ascertained that they were untrue.

Appeal ebom. Decision oe the Chancellob, A sale of a sugar plantation, at an exaggerated price, to a person whom the vendor knew to be of impaired mind, set aside.

Appeal erom Decision oe the Chancello». • Proceedings before the Land Commission cannot now here-examined; approving Kuhiia.hu vs. Gill, 1 Hawn., 54, and Bishop vs. Ñamar hulaa, 2 Hawn., 238. Land Commission Award 721 is headed “Mahuka and Kaai,” but the land is awarded to “Mahuka; ” held there is no trust in Mahuka in favor of Kaai.

Exceptions to Findings op Judd, C. J. Neither a guardian nor his grantees will be allowed to set up possession or title in land adverse to the ward.

Exceptions to Findings oe Austin, J. A tenant, who has the right to remove fixtures, must do so before he quits possession. Plaintiff having surrendered all claim to premises under a certain lease, and admitted that he was a tenant at will, cannot recover for a house built by him on the premises for which, under the lease, he was to be paid at the end of the term.

Question Reserved, Defendant gave his infant child to plaintiff to bring up ; no articles of adoption were signed; defendant subsequently took the child, back; held, plaintiff was in loco parentis,… Held: plaintiff was in loco parentis, and cannot recover for services rendered and necessaries supplied to the infant, there being no contract by defendant to pay therefor.

Exceptions to Rulings op Judd, C. J. Defendant received money from A, in Honolulu, to be delivered to A’s mother in China ; on defendant’s return from China, having failed to deliver the money as… Held: he was guilty of embezzlement, either in China or Honolulu, wherever prosecuted.

Exceptions to Rulings of Judd, O. J. A lease need not be in duplicate; one copy, if properly executed, is enough. Held: there was a delivery of the lease. The Court having charged the jury that one lease, .properly executed, held by either party, could be enforced by either; held, it was not necessary to direct the j ury that the lease must be delivered.

Exceptions to Findings of Austin, J. Plaintiff in ejectment need not show possession within twenty years if he shows title and no adverse possession is proved. Held: in Keahi vs. Bishop, 3 Hawn., 546, that an adjudication of pedigree is binding in every subsequent action where the same question is raised; held that defendant here is estopped by the judgment in a former suit, notwithstanding the failure of the Clerk to enter judgment therein.

<p>Exceptions to Findings oe Austin, J.</p> <p>Defendant held estopped by judgment; on authority® of .Bose vs. Smith, ante, 377.</p>

<p>Exceptions to Findings op Austin, J.</p> <p>This ease is settled by Pose vs. Smith, ante, 377.</p>

Appeal prom Decision of McCully, J. Public officers, who make contracts in behalf of the public, are not personally liable. Commissioners of Crown Lands are public officers. A judgment against the Commissioners, for damages for breach of covenants in a lease made by them, cannot be enforced against their personal estate, but must be realized out of funds in their hands as Commissioners.

Exceptions to Rulings op Judd, C. J. After death of decedent, his widow put Luha on the land to plant and cultivate a crop of kalo on shares; the land was sold to pay debts of decedent.

Appeal prom Decision op McCully, J. A bill to set aside a sale of shares of stock, alleged to have been made under fear and duress, dismissed ; the evidence in support of the bill being extremely improbable.

Exceptions .to Rulings op Austin, J. In an action for malicious prosecution it is not necessary to show that the criminal charge before a magistrate, on which the action is based, resulted in an acquittal; it is enough if the charge was discontinued by the prosecution, the rule being that the proceeding must have come to an end, whatever be the form of the termination.

Appeal erom Commissioners oe Private Ways. An easement by user, so far as it depends on an award by grant, runs from date of the award, not from date of a Royal Patent on the award ; if it is based on a Kuleana Award, proof of user may run from a time antecedent to the award. There may be a gate across a private way, without assertion of the right to close the way.

Appeal erom the Chancellor. The foreclosure of a mortgage on a sugar plantation decreed; and the mortgage held, by its terms, to cover advances made for carrying on the plantation. Held: by its terms, to cover advances made for carrying on the plantation.

Where a mortgagor failed to designate to which of several debts payments by him to the mortgagee should be credited; held that the mortgagee was not bound to appropriate the payments to interest due on the mortgage, but could apply them to an unsecured debt for advances made to carry on the sugar plantation, the subject of the moitgage.

Appeal ebom the Chancellor. Fowler & Co. sold rails, cars, and appurtenances for a railway, to the Heeia Plantation, and the railway was operated by the plantation for over a year; a mortgage of the plantation, including railway, cars and appurtenances, to Grinbaum & Co. having been foreclosed, Fowler & Co. claimed the right to remove the track and ears, on the plea that the sale was conditional; held that the sale was absolute, and that the railway and its appurtenances was…

Appeal erom the Chancellor. If there is no express stipulation to the contrary, the right of possession of mortgaged chattels vests in the mortgagee immediately upon the execution of the mortgage ; only the right to redeem passes to the assignees in Bankruptcy of the mortgagor. Fallon vs. Robinson, 2 Hawn., 227, approved. Demurrer to a bill in equity sustained, on the ground that plaintiff had an adequate remedy at law; distinguishing Ahuna vs. Kaua-hikaua, 3 Hawn., 730.

A Sale under a power in a mortgage having been set aside for irregularity : held that in the action to set aside the sale, neither the mortgagor, under a prayerfor genéral relief, nor purchasers at the sale, could recover consequential damages from the mortgagee on account of the illegal sale.

, Overruling Demurrer. W. Y. Horner, having made a planting contract with defendant, assigned an interest in the contract to his brother, J. M. Horner, who brought suit against defendant for breach of the contract. Held that J. M. Horner, by the assignment, became, not a tenant in common with his brother, but a joint contractor, and therefore W. Y. Horner should have been joined as a co-plaintiff.

Exceptions to Bulings op Austin, J. Ejectment having been brought against several defendants claiming under different titles; held there was no misjoinder of defendants. Held: under the evidence, erroneous, as plaintiffs could only claim title from the time their right of possession accrued; but there being no advantage in again trying the title, judgment for possession is allowed to stand, if plaintiffs file a remittitur of damages.

Exceptions to Rulings oe Austin, J. Pkeston, J., Disqualified. Held: that by the terms of the deed, (which was in Hawaiian), no estate upon condition was created or could be inferred; and therefore there was no forfeiture of the estate on account of failure to support, and the refusal of the Court to allow evidence of the failure of the grantee to support plaintiff was correct.

Appeal erom Decision oe McGully, J. Plaintiff's, an elderly Hawaiian and his wife, sold to defendants two pieces of land, one belonging to the husband, the other to his wife, and subsequently claimed that they had been fraudulently induced to include both pieces in the deed, whereas they had only intended to sell that belonging to the wife.

Question Resebved. On January 7, a garnishee paid into Court the amount he owed defendant; on February 11, ensuing, defendant was adjudged bankrupt. Held that the fund in Court belonged to plaintiff, and not to defendant’s assignees in bankruptcy ; plaintiff might have withdrawn it before the bankruptcy, and the law should not put him in any worse position merely because he had not thought fit to draw his money from the registry of the Court.

Appeal erom Decision oe McCully, J. Plaintiff, in January 1880, paid defendant Sylva $25, on account of the purchase price of certain land, and Sylva agreed to execute a deed as soon as prepared, plaintiff to pay balance of purchase money on the execution of the deed, at the rate of five dollars per acre. The boundaries and acreage of the land were not then, or at any time “subsequently, ascertained, and no steps were taken to agree on the amount of the purchase money.

Appeal ebom Decision oe the Chancellob. The Hutchinson Plantation Company gave Akai 250 acres of land, rent free, and advanced him money to plant it with sugarcane; the cane was to be… Held: that Akai had no property in the proceeds of the sugar until the advances made by defendant were paid, and as the accounts show there is nothing coming to him, plaintiffs can take nothing under their mortgage, as all the mortgagor could assign was his prospective balance of account.

Exceptions to Rulings of McCully, J. Chapter 45, Laws of 1874, allowing any company incorporated “for the transmission of intelligence by electricity ” to construct lines along the public roads, held to be broad enough to cover the erection of poles and suspension of wires by a telephone company.

Appeal prom Decision op the Chancellor. Plaintiffs, old and feeble Hawaiians, desired to make a will in favor of their grandson, Naihe,… Held: affirming the decision of the Chancellor, that the intention of plaintiffs was to reserve a life interest and to charge Naihe with their support; that they executed the deed to Naihe under mistake of its legal effect, and that it did not express their true intention ; and that knowledge of sufficient facts to put her on enquiry was…

Exceptions to Rulings ok Judd, C. J. ■When a person takes the life of another under the plea of self-defense it is for him. to show the actual necessity for the act: that the person killed was in the act of committing some felony, or in the act of committing some grievous bodily harm upon the slayer under such circumstances as would induce a reasonable belief, from the manner of the assault and the weapon used, that the danger was imminent, and nothing short of taking the…

Exceptions prom Rulings op Austin, J. The Court is not required to put propositions to the Jury, although correct, in the very language used by counsel, nor to give again, in the terms proposed by counsel, what has already been given.

Appeal erom Decision oe Preston, J. An instrument in the form of a deed, reserving a life interest to the grantors, held not to be a will, but a valid deed. Delivery and acceptance by the grantee held to be proved sufficiently. The common law rule, that a deed creating an estate in futuro is void, has never been adopted by the Courts of this Kingdom. The common law is not in force eo nomine in this Kingdom: its technical rules are in force here only as they may be adopted.

Exceptions to Bulings op McCully, J. At the trial of an action of ejectment Defendants put in a defense of adverse possession: plaintiffs produced evidence in rebuttal: defendants then, under plaintiffs’ objections, were allowed to bring testimony contradicting plaintiffs’ evidence in rebuttal.

Question Reserved By Judd, O. J. Default and judgment were entered against defendant, in a term case, by a Judge at chambers, in vacation. Held: that all the proceedings were regular, under Section 1109, Compiled Laws; and that all reasons for setting aside default and vacating judgment must be addressed to the discretion of the Presiding Justice at the term.

Question Reserved by McCubby, J. Defendants held certain land as devisees by virtue of the adverse possession of their testator and two others. Held: that defendants’ testator, being the survivor of joint disseisors, became solely entitled to the land.

Appeal ebom Decision or1 the Chancellor. Held: that defendants, as trustees of the estate, must pay the debts; they delegated their authority, as to incurring the liabilities, to her, and are estopped from objecting to the results.

Question Deserved. An express trust in personal property may be created, by parol, and, if continuing, is not within the Statute of Limitations. Held: under the rule that the subject, the purposes, and the beneficiary of a trust must be clearly ascertained, that the evidence failed to show that a trust was created; and therefore the Statute of Limitations would run against the claim. Verdict for amount due plaintiff for the last six years allowed to stand.

Exceptions from Rulings of Chief Justice Judd. Held: that an appeal from the order admitting the will to probate was properly submitted to a jury of six Hawaiians and six foreigners.

Exceptions to Rulings oe McCully, J.' Affidavits in support of a motion for new trial, on ground of newly discovered evidence, should show that the evidence is newly discovered, and that due diligence was used to discover it. Such affidavits may be received after the lapse of ten days from verdict, in the discretion of the Court, on proper cause shown, Rule VIII. of the Supreme Court is subject to the control and discretion of the Court.

Appeal erom District Court oe Hamakua, Hawaii. A labor contract read that the laborer was to work for the term of three years from the date of the commencement of the service ; held that this meant three calendar years, notwithstanding that the contract, in another section, provided that wages were to be paid for each month of twenty-six days’ service.

Appeal erom Decision oe McCully, J. A conveyance made in May, 1884, by a party who was declared a bankrupt in February, 18S5, held to be in fraud of creditors, and set aside, there being strong evidence that the grantee was aware of the insolvency of the grantor at the date of the conveyance.

Appeal prom Decision op McCully, J. Where there is a conveyance to hushand and wife: on the death of the wife, the entire estate vests in the husband. Paahana vs. Bila, S Hawn., 725, approved. The title of tenants in common must be conceded and at rest between them, or the Court has no jurisdiction 'to partition the estate.

Mandamus. Plaintiff, being exempt from personal taxes by reason of his membership in a military company, demanded of the defendant, as Tax Collector, a certificate bearing the words “qualified to vote,” without which his vote at election for members of the Legislature would not be received; defendant’s answer was that, in accordance with custom, he had given the certificate, with those of the other members of the company, to the captain thereof.

Exceptions to Rulings op Judd, C. J. Defendant bought land from one in possession, but the grantor had no title; subsequently plaintiffs acquired title by inheritance and purchase; defendant,… Held: that defendant acquired no title by the deed from his vendor, and that the plea of estoppel failed entirely. Plaintiffs’ delay in claiming their rights held not to amount to laches, the statute of limitations not having fully run. Kamohai vs. Kahele, 3 Hawn. 533, distinguished.

Exceptions to Rulings of Judd, O. J. To justify the presiding judge at a trial in directing a verdict for defendant, at the close of plaintiff’s case, there should be a total want of evidence to support the plaintiff’s claim. There being abundant testimony in chief, for plaintiff, to sustain a verdict for plaintiff; held that the Court would have erred in directing a verdict for defendant, and that the verdict for plaintiff must stand.

Exceptions to Findings of Judd, O. J. Trespass does not lie against the Marshal of the Kingdom, acting under process of Court, for non-feasance in executing the process.

Exceptions to Rulings oe Judd, C. J. In an action for damages for a nuisance caused by smoke and soot from the furnace of an ice manufactory, it is no defense that ice is a necessity, and that the price has been reduced by the operation of defendants’ factory.

Exceptions to Findings oe McCully, J. A complaint and search, warrant for opium held to sufficiently describe the premises to be searched, and to allege probable cause, but as the complaint failed to… Held: following Hang Hang Kee vs. JBiekerton, 4 Hawn. 584, that the complaint is defective in this material point.

Appeal prom Decision op Jude, C. J., Overruling Demurrer. A complaint is not demurrable on the ground that a father, suing on behalf of his daughter, a minor, failed to obtain leave of Court (under Rule XX): it is, at most, an irregularity, which might be amended by application to a judge at chambers. A complaint for breach of promise of marriage held to sufficiently allege a promise.

Question Reserved by Preston, J. There being no feudal tenures in this Kingdom, the reason for the common law rule of joint tenancy has no existence here. A Grant by Royal Patent to two persons and their heirs, held to create a tenancy in common.

Exceptions erom Circuit Court, Second Judicial Circuit. A lottery is a “game” within the meaning of Sec. 1, Chap. XXXIX, Penal Code. The jury having convicted defendants upon the evidence of one witness; held that a new trial should not be granted.

Exceptions to Findings oe McCully, J. A lessor, desiring to oust a tenant for non-payment of rent, must pursue the legal remedy afforded him by statute; if he takes forcible possession of the premises, he makes himself liable, as bailee, for the goods of the tenant therein. In a jury-waived case, the finding of the Court on the facts will be treated like the verdict of a jury; if there is evidence to support it, it cannot be disturbed.

Exceptions to Rulings oe Judd, C. J. Marriage does not vest choses in action of the wife in the husband, unless he takes steps to reduce them to possession during cover-ture : so held as to promissory notes made to the wife by a third party, for a loan made out of her private money. A carriage and horses bought by the wife with money derived from sale of her land; held to be the property of the husband. New trial ordered, unless plaintiff files remittitur.

Exceptions prom Circuit Court, Second Judicial Circuit. Charge to the jury, as to facts constituting possession of opium, by defendant, held to be justified by the evidence, and unobjectionable. There being evidence to justify the verdict, it cannot be set aside.

Appeal prom Decision oe Preston, J. The Onomea Sugar Co., having accepted a charter, and organized by election of officers and adoption of by-laws, held to be a duly and legally organized and existing corporation.

Exceptions from Circuit Court, Second Judicial Circuit. Held: that as the officer had no search warrant, he was not in the discharge of his official duty ; and a new trial ordered.

Exceptions from Rulings of McCully, J„ The Ili of Piopio, being an ili kupono, is not subservient to the ahu-puaaof Waiakea, by which it is surrounded; and the lessee of the Ili of Piopio has no rights, as a hoaaina of the ahupuaa of Waiakea, in the sea fishery appurtenant to Waiakea.

Extradition prom California. There can be no question of the right of the Government, independent of any treaty, to surrender a fugitive criminal upon the request of a foreign State.

Taxation op Costs. Defendant was ordered to pay costs for his laches; plaintiff claims $206, for costs of witnesses; the Court allows $105 of this amount to be taxed.

<p>Appeals prom Circuit Judges.</p> <p>Chap. XXVI, Laws of 1884, limits appeals from a Circuit Judge at Chambers to the Circuit Court of the same Judicial Circuit.</p>

Appeal erom Police Justice oe Honolulu. Ching Sing made an assignment for benefit of creditors; plaintiff, a creditor not included in the schedule given to the assignee by the debtor, sued Ching… Held: affirming the judgment of the Court below, that the assignee became a trustee for the creditors, and could not be ordered to satisfy plaintiff’s claim: the validity of the assignment can only be attacked if proceedings in bankruptcy are taken.

Motion to Dismiss Exceptions. Under Rule of Court VIII, on exceptions from order denying or granting motion, for new trial a bond for further costs must be filed within ten days.

Submission by Stipulation. An agreement between Defendant and H. Barber held not to estop Defendant from denying Ms liability to Plaintiff for goods supplied to Barber.

Appear from Decree oe Preston, J. In a bill to set aside a sale made under a power in a mortgage, plaintiffs offered to pay the mortgagee any sum found due on the mortgage, upon an accounting. Held that this gave a Court of Equity power to decree that plaintiffs pay said mortgagee the deficiency following a subsequent sale on foreclosure by order of the Court.

Appeal prom Police Justice op Honolulu. Defendant plead guilty of cruelty to ten mules, and was sentenced: the next day he was convicted of cruelty to two horses that he used while driving the mules… Held: that the former conviction was no bar to the latter.

Appeal prom Police Justice op Honolulu. Sec. 12, Chap. 51, Laws of 1884, provides “that any person convicted under the provisions of this Act shall forfeit and pay any sum not exceeding twenty dollars, with or without hard labor not exceeding one month : ” Held that the statute does not authorize imprisonment, and a sentence of imprisonment under it is illegal.

Appeal prom Findings oe Preston, J. A lease was dated and acknowledged on 26th. August, and expressed no other time for beginning of rent; lessees and their assigns paid the rent at various times from the 1st to the 10th of each month, and the testimony was that this was done for convenience; held there was not evidence sufficient to support a waiver by the lessor ' of his right to collect rent on the 26th day of the month.

, adjudging Defendants in Contempt. Section 839, Civil Code, in regard to appeals to the full Court, held not to permit an appeal from the order of a Justice of the Supreme Court adjudging defendants in contempt. Canipbell’s Case, 2 Hawn. 27, approved. The Court declines to hear such an appeal.

, on Demurrer. Plaintiff filed a bill in equity to restrain defendant from opening a water-way whereby water was discharged on plaintiff’s land; but averred in the bill that plaintiff’s lessees had… Held: on demurrer, that the injury to plaintiff’s land having thus ceased, and there being no allegation that defendant threatens to re-open the water-way, the bill is demurrable on this ground.

Exceptions to Rulings of Peeston, J. In a suit for damages for malicious prosecution, defendant offered evidence as to certain keys found on… Held: this evidence was admissible, as part of the res gestae, and as tending to mitigate damages, but not as affording proof of plaintiff’s guilt. Facts sufficient to induce belief in the guilt of the plaintiff must have been known to ‘defendant before he commenced the prosecution, in order to ground upon them probable cause.

Exceptions to Rulings op Pbeston, J. It being left to the jury to say whether D. was defendant’s agent, receipts given by D. as agent are admissible in evidence. Defendant held liable, upon the evidence, to pay plaintiff, a consignor, the highest price received for any lot of similar fruit shipped by the same vessel, provided that plaintiff shipped good merchantable fruit, defendant having intermingled the consignment with his own fruit.

Exceptions erom Circuit Court, Third Judicial Circuit, A motion to quash an indictment is not a proper subject of exceptions. A motion to quash must be made before defendant has pleaded. Inspectors of Election may appoint deputies to represent them on the Board of Inspectors, when the Inspectors themselves are actually absent from the place where the meetings of the Board are held : but not otherwise.

Appeal prom the Chancellor. . A testator devised the greater part of his real estate to his daughter, and charged it with payment of debts; it was sold to pay debts. Held: that the devisee could not be reimbursed from the residue of the estate, specifically devised to others.

<p>Appeal prom Intermediary Court.</p> <p>There is no appeal from a judgment by default.</p>

Exceptions op Refusal op McCully, J., to Grant a New Trial. Held: that the refusal to grant a new trial was proper; for, even supposing the witness should Testify as expected, the evidence as to the execution of the burpt instrument is very vague; and as, according to the plaintiff’s evidence, the instrument was a will, and not proved within five years from death of testator, it would have no…

Plaintiff agreed to sell to defendant the “Nuuanu Dairy property, containing an area of 650 acres, more or less;” after defendant took… Held: that when the purchaser is willing to take a less.quantity of land than the contract calls for, he is entitled' to a pro rata reduction in price, and the words “more or less ” will not cover such a deficiency as exists in this case ; but the defendant, having sold the property soon after his purchase of it, to a corporation of which…

Exception to Rulings oe McOully, J. In a planting contract it was agreed that plaintiff should plant anew 200 acres each year, unless it was waived in writing by defendant; in an action by plaintiff… Held: the burden of proof was on plaintiff to show that the supply of water was not sufficient, in the opinion of defendant or his agent, and that under the pleadings he could not be allowed to show that defendant’s agent had not acted in good faith.

Exceptions to Rulings op Judd, C. J. Plaintiff, a Hawaiian girl, sued defendant as administrator of Ahuna, deceased, for domestic services alleged to have been… Held: that although subsequent seduction would not bar the right to recover wages for prior proper domestic service, yet in this action the jury could hot give a verdict for plaintiff as compensation for her seduction, it appearing clearly that the original bargain between plaintiff and Ahuna was for her person.

Appeal prom the Chancellor. A bill to set aside a deed, on the ground of fraud and undue influence practiced upon the grantor when in a condition of mental unsoundness, set aside; the evidence, though conflicting, failing to sustain the allegations of the bill.

Exceptions to Refusal of the Chief Justice to Grant a New Tjbial. Held: no reason for granting a new trial.

Under the the Garnishee Act, Compiled Laws, pp. 279, 280, a petition to any Court to issue a garnishee summons must be in writing and' contain a specific request for garnishee process. MeCully J., dissenting on this point. The common law rule as to an Executor de son tort does not apply here. A widow held not to be liable on a note made by the husband, the creditor having failed to comply with the statutory requirements as to claims against estates of deceased persons.

Complaint fob Malfeasance. Alleged malfeasance of a District Judge, in a ease between Master and Servant, considered, and the complaint dismissed. Errors of judgment are not matters which should be held as good cause for removal of a magistrate; but a continued career of gross judicial mistakes might establish the fact of his unfitness for the position and be good cause for removing him.

Admiralty Appeal. A ship, being chartered for a specific sum for the voyage, was wrecked near port of destination: cargo was lost, but passengers were saved : carrying of passengers was the main… Held: that in Admiralty the charter-money could be apportioned pro ruta itineris, by deducting from the full sum stipulated a reasonable amount for cargo, not delivered, and for expenses in bringing passengers to port of destination.

Appeal erom Decision oe Judd, J. In an action for cancellation of a power of attorney, and conveyances under it, on the ground of fraud… Held: that the donors had full opportunity of ascertaining the contents of the power: they acknowledged the same before the Registrar of Conveyances: a year afterwards they drew an order on the donee for proceeds in his hands: seven years elapsed before they brought the matter into Court: and they must now abide by the contract which was…

Exceptions to Rulings oe Judd, J. In an action to recover value of necessaries supplied to defendant’s wife, while she was separated from him on account of his adultery, the… Held: that if the adultery of the wife should be notorious, this Court would hereafter instruct the jury that the husband would be free from his liability, bnt there being no evidence to show notoriety of the wife’s adultery, or knowledge of that fact by the plaintiff, the instruction given was proper.