Volume 6 — Hawaii Reports

<p>The Court declines to revoke the probate of a will, granted in 1855, upon a petition filed over eleven years later, alleging said will to be a forgery.</p> <p>The same amount of proof should be demanded in support of such petition as would be required to convict the parties implicated upon a, criminal prosecution for forgery.</p> <p>Not being convinced beyond a reasonable doubt that the will is a forgery, the Court declines to revoke probate.</p>

<p>In a suit for damages by a sailor against his captain for flogging; the Court awards libellant $100.</p> <p>Relative duties of master and crew, defined and considered.</p>

<p>The Court construes a will to intend that the testator’s property shall he held in trust for the benefit of his widow and son during the widow’s life, with remainder in fee to the son; holds that the devise to the son did not lapse by his death before his mother, and orders the trustee to pay half the income to the son’s representatives during the widow’s life, and after her death to transfer the whole estate to the son’s heirs.</p>

<p>Courts of Equity have no more discretionary powers than Courts of Law; they decide cases on principles as fixed and certain as those of common law.</p> <p>A deed set aside for fraud, it appearing that the grantor was aged and ignorant; that the price was inadequate, and that the grantor reposed trust and confidence in the grantee, of which the latter took undue advantage.</p>

<p>Demurrer is not a plea in bar; if overruled, judgment on the record is given.</p> <p>Plea in abatement suggests defects in form and substance; if overruled, Defendant may answer over.</p> <p>A Taxpayer, who had not paid taxes till after they were delinquent, held to be “qualified to vote;” and mandamus issued to compel Inspectors of Election to give him a certificate.</p>

<p>Habeas Corpus.</p>

<p>When carrier receives goods, burden is on him to show safe delivery, or prove that loss occurred by excepted causes; then the libellant may show negligence of the carrier.</p> <p>Lamotte vs. Angel, 1 Hawn. 140, considered.</p> <p>Damage to cargo held to be caused by perils of the sea, and libel dismissed.</p>

<p>Decree of distribution, made by Probate Court, does not bar an adverse claim by a party who has not had proper notice to appear.</p> <p>Testimony as to conflicting claims of heirship considered, and half of the land awarded to each party.</p>

<p>A deed ordered to be cancelled on the ground of fraud of the grantee, it appearing that the grantor, an illiterate man, supposed the deed was a power of attorney; that relations of trust and confidence existed between the parties; and that the grantee derived an inordinate advantage from the transaction.</p> <p>Prior decisions of this Court, as to rescinding conveyances, considered.</p>

<p>Motion For New Trial.</p>

<p>An absolute bill of sale of a vessel, although made in fraud of creditors, cannot be varied by the purchaser by parol evidence that the conveyance was merely as security for advances, the vessel having been lost after the transfer.</p>

<p>History of land titles in this Kingdom reviewed.</p> <p>The Mahele does not give a title; a subsequent award by the Land Commission or Minister of Interior is necessary.</p> <p>A grantee under the Mahele, who failed to take proper steps to perfect his title, is barred from asserting it.</p>

<p>Real and personal property, as defined by Sections 483 and 484 Civil Code, must be held to be the same kind of property so designated in American, English, and Continental law.</p> <p>A custom of natives in former times to remove houses does not warrant the conclusion that a house is personal property.</p>

<p>A wife cannot convey her lands to her husband during coverture.</p>

<p>A condition in restraint of marriage, in a trust deed, made by a husband for benefit of his wife and children, held to be void, so far as it tends to forfeit the widow’s interest in the estate.</p> <p>Widow’s claim for dower held to be repugnant to provisions and intent of trust-deed made for her benefit, and disallowed, she having failed to elect between the deed and her dower within the statutory period.</p> <p>A son by former marriage held to acquire no title under a trust-deed made for benefit of second wife and her children.</p> <p>Trust-deed held to be terminated by marriage of the widow for whose benefit it was made; and the property decreed to be divided among the beneficiaries, the widow to have a life interest in one-third.</p>

<p>A Justice of this Court, sitting in probate, approved the accounts of an administrator and distributed the estate. The heir-at-law was decedent’s mother, who had died in England, leaving a will by which she devised all her interest in her son’s estate to her other children, also in England. A certified copy of the will was produced in the Probate Court here, upon the proceedings in administration, but the will was not probated here, and the Probate Court remitted to the heirs under said will the amount due them, receiving their receipt in due course.</p> <p>In an action by said heirs to foreclose a mortgage held by them as part of said estate, held, on demurrer, that although the proceedings in the Probate Court were irregular, yet no appeal or writ of error was taken from them, and they cannot be attacked in the present action.</p>

<p>The Court declines to set aside a deed, and a mortgage made by the vendee, there being no sufficient proof of fraud in regard to the deed, and the mortgagee having no notice of fraud, if there had • been any. ,</p>

<p>A deed held not to be a forgery, in an action of ejectment.</p> <p>The Court is strongly of opinion (although obiter in this case) that evidence tending to defeat a sealed instrument is not admissible in actions at law, under our statutes.</p>

<p>A steamer having been seized for clandestinely introducing a contagious disease into this Kingdom, contrary to Section 295, Civil Code; and it appearing that a passenger who landed from the steamer had the small-pox, but that it was not clearly developed, and that the captain and surgeon of the steamer had no knowledge of the passenger’s illness:</p> <p>Held, that if the vessel introduced the disease clandestinely, it must be through the instrumentality or neglect of its own agents; and the vessel is hot liable for any secret conduct of its passengers, which reasonable vigilance could not prevent or detect.</p> <p>Libel dismissed.</p>

<p>Defendant, being indebted to plaintiff’s intestate on a note, conveyed his property to his wife; when the note became due, defendant gave a new note for the same amount, with interest.</p> <p>Held, that the deed was void as against the second note: the latter being a renewal, and not payment, of the first note.</p>

<p>An attorney punished for obtaining a fee for work he had neglected to perform.</p>

<p>An attorney punished for neglecting to appear in a case after he had been retained; and for appropriating the whole of an amount collected by him for a client.</p>

<p>A parol assignment of a mortgage of real estate, accompanied with endorsement of mortgage note and delivery of mortgage deed, is valid under our statutes.</p>

<p>The firm of Walker & Allen made a voluntary assignment to plaintiff for benefit of creditors, which was recorded at 2 P. M.; at 6 A. M. on the same day the firm had transferred to defendants certain sugar on board a steamer in port, as per an agreement made several days before, by which defendants, as bankers, allowed said firm to draw $3,300, to be paid in sugar upon the next arrival of the steamer from the sugar plantation:</p> <p>Held, the transfer of the sugar was not void and in fraud of creditors, it being made in good faith, and defendants not being certain that Walker & Allen were insolvent.</p> <p>The provisions of our Bankruptcy Statutes, and the theory of the laws of other countries as to voluntary assignments, held not to apply to voluntary assignments in this Kingdom.</p>

<p>All persons legally or beneficially interested in the subject matter of an equity suit should be made parties.</p> <p>The heirs of a decedent being interested in the case, but unknown: held, that probate proceedings should be instituted to ascertain who they are, before decree in the equity suit.</p> <p>The Court will not take jurisdiction where it is apparent on the record that it cannot proceed to final judgment and execution.</p> <p>Demurrer sustained for non-joinder of parties.</p>

<p>Plaintiffs ask for partition of lands to which they claim title under an anomalous document, in the nature of a trust-deed, which was admitted to probate as a will: Defendants claim under an absolute deed of the same property, subsequently made by the testator:</p> <p>Held, the first document, having been construed to be a will, to take effect after death, conferred no rights as against grantees under a later deed: and no fraud being proved as to the deed, the Court dismisses the bill.</p>

<p>Seamen, who shipped at Japan for a whaling voyage, and to San Francisco as port of discharge, claimed to he discharged at Honolulu and to receive wages and passage to San Francisco, the ship being about to proceed to New Bedford.</p> <p>Held, if the vessel were bound to San Francisco, calling here would not be a deviation; but the Court would interfere to prevent libellants being taken to New Bedford.</p> <p>It appearing that the whole matter is within the American Consul’s jurisdiction, and that the only object of the suit is to avoid payment by the ship of consular fees: Held, that it is no part of the duty of this Court to interfere to prevent the consul from doing his duty, or to assist United States citizens to evade the force of the laws of their own country.</p> <p>Jurisdiction declined.</p>

<p>A firm having made an assignment for benefit of creditors, one of the creditors files a bill against the assignees to compel an accounting and payment:</p> <p>Held, on demurrer, that all the creditors named in the deed of assignment are necessary parties to the suit.</p> <p>Demurrer sustained.</p>

<p>In a statutory proceeding by a creditor to declare a debtor bankrupt, the Court has jurisdiction to hear a plea of equitable estoppel: following Kamohai vs. Kahele, 3 Hawn., 530.</p> <p>The promise of a creditor that he would not press respondent for payment of a note, held not to estop the creditor from bringing proceedings to put respondent into bankruptcy; the misrepresentation being of intention only and not of fact.</p> <p>The creditor’s promise held not to be a new contract extending time of payment, but a nudum pactum; or, if a contract, only execu-tory.</p> <p>The claim of petitioner being held good, respondent is adjudged bankrupt.</p>

<p>A Police Court summons, if no written complaint is filed, should contain, in brief all that is essential to a complaint; but objections as to form must be made before trial in lower court.</p> <p>An agreement containing “apt words of present demise,” held to be a lease, and not void for uncertainty as to beginning of the term.</p> <p>A lease stipulated that the lessee could renew, at end of term: held, following Campbell vs. Akana, 3 Hawn., 571, that occupation and payment of rent by lessee, after end of term, was virtual notice of his intention to hold the premises for the additional term.</p>

<p>Defendant pleaded guilty before a Police Justice, and appealed to the Supreme Court for mitigation of sentence. In the Supreme Court, a jury trial was held, without objection.</p> <p>Held, the verdict must be set aside by the Court, on its own motion, upon the matter being brought to its attention, and the judgment of the Police Justice stands.</p>

<p>The bankrupt having petitioned for a discharge from his debts, under Section 983, Civil Code: and having obtained “consent of a majority of his creditors in value and number within this Kingdom:”</p> <p>Held, that creditors resident in California, although represented here by power of attorney, are not “within this Kingdom:” and that treaty provisions as to foreigners resident in this country do not apply to them: they may allege their reasons for refusal of a discharge, but are not entitled to vote on the matter.</p> <p>Theory of our bankrupt law considered: and the bankrupt held entitled to his discharge.</p>

<p>The question as to whether a wife can by will bar her husband of curtesy-held not necessary to be decided in this case: the question being as to ownership of crops on the wife’s land, and it appearing that the husband, living apart from his wife, assented to cultivation of the land by a tenant, who supported the wife: the tenant has, therefore, a reasonable time to harvest his crop.</p>

<p>The Marshal, upon receiving an execution, read it over to defendant, but did not take any property in his custody or make an inventory: a garnishee process in another suit was subsequently served on defendant:</p> <p>Held, there was no levy of execution, and the subsequent garnishment was good.</p> <p>A judgment debtor can be held as garnishee of a judgment creditor. Part-owners of a vessel are tenants in common.</p>

<p>Taking of testimony, on collateral facts involved upon demurrer, allowed, under Sections 1112, 1113, Civil Code.</p> <p>Part-owners of a vessel held to be partners.</p> <p>Garnishee process cannot hold debt of garnishee to a partnership, in an action of assumpsit against one of the partners for a private debt.</p> <p>Demurrer sustained.</p>

<p>In a suit for injunction against proceedings at law to enforce a judgment, held: that a bill in equity is an “action,” and an alleged gift of lands “a contract for sale of lands,” within the Statute of Frauds: and said gift being by parol, the bill must be dismissed.</p>

<p>In an action for accounting of partnership transactions, held, that a sale by one partner, of all the partnership porperty, dissolved the partnership ; and as this suit was not brought within six years thereafter, it is barred by the Statute of Limitations.</p> <p>Bill dismissed.</p>

<p>Under §1478, Civil Code, driftwood, found on or near the shore, belongs to the finder: and the finder is one who not merely sees it, but who exercises some act of ownership.</p>

<p>The escape of a debtor from the Kingdom, to avoid arrest and punishment on a criminal charge, held to be with intent to defraud creditors, and therefore an act of bankruptcy.</p>

<p>To authorize probate of a lost will by parol proof of its contents, the evidence must be strong, positive and free from all doubt.</p> <p>The effect and history of “Kauohas” considered, with reference to ancient Hawaiian law and custom.</p> <p>An award of the Land Commission, made after the date of an alleged lost will, is conclusive against the right to prove such will now, if the will differs from the award..</p> <p>Probate refused.</p>

<p>A Police Justice noted on his record that a party appealed to the Supreme Court. Persons present in Court, including the interpreter, testified that the appeal was expressed to be to the Intermediary Court.</p> <p>The Court’ orders the appeal certified to the Intermediary Court.</p>

<p>The introduction in evidence, by plaintiffs, of an unrecorded contemporaneous memorandum, contradicting a recorded lease on which defendants relied, held to be a surprise, and a new trial ordered.</p>

<p>No right to bring suit for possession of land can accrue to a plaintiff unless the possession by defendant is adverse.</p> <p>Although- in the early days of this Court administrators held the realty of their decedents, yet after the discharge of an administrator he ceased to have any such authority, and his possession became adverse to the heirs.</p>

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

<p>Plaintiff claims a resulting trust in lands, on the ground that he furnished the purchase price and his name was fraudulently omitted from the Royal Patent.</p> <p>Held, that while there is no resulting trust in favor of a husband, in lands of the wife, paid for with the husband’s money; in this case it appears that the wife’s name was fraudulently inserted in the Patent, against the will of the husband, and the Court establishes the trust.</p>

<p>The Court admits parol contemporaneous evidence to explain a patent ambiguity in a lease, so that the Court may be placed as nearly as possible in the situation of the.party whose written language is to be interpreted.</p>

<p>The Mahele of 1848, and ancient Hawaiian land tenures, considered, and defined.</p> <p>A release by the Mahele from the King to his Queen is good.</p> <p>Ahupuaa, Ili, and Ili Kupono, defined.</p> <p>Although the grant of an ahupuaa ordinarily includes all the land within its boundaries, yet as all the Ilis recognized in the Mahele and awarded by the Commission were undoubtedly Ili Kuponos, having their own distinct identity, the Court holds that such Ili Kuponos were not included in the grants of the ahupuaas within whose boundaries they lie, it not being clearly expressed or manifestly intended that they should be so included.</p> <p>Although there is no prescription against the state, the King, as an individual, cannot claim this immunity.</p> <p>The King did not have to go to the Land Commission for confirmation of his titles in his reserved lands.</p>

<p>Whether an alteration in a promissory note is material is a question of law for the Court: but whether there is an alteration is a question of fact for the jury.</p> <p>Under §49, Chap. 32, Laws of 1876, the maker of a note may deny that he has signed it: and evidence that he has been heard to deny it is admissible.</p>

<p>If credit for necessaries is given solely to the wife, the husband is not responsible.</p>

<p>In actions for injuries to persons, the jury may give vindictive damages; but in trespasses to property, unless special misconduct and aggravation appear, the measure of damages is actual compensation to the injured party.</p> <p>A verdict for $1500, for damage caused by overflow from a dam, held to be excessive, and reduced to $1000.</p>

<p>A tax-payer neglected to furnish the assessor with a list of his property, and the assessor made an assessment ex parte: held, that this did not deprive the tax-payer of his right to appeal from the assessment, under the statutes.</p> <p>Minister of Interior vs. Glover, 3 Hawn., 697; and Widemann vs. Minister of Finance, 3 Hawn., 791, distinguished.</p> <p>Mandamus issued to compel the tax-collector to grant petitioner a certificate of appeal.</p>

<p>Salvors allowed one-third of the amount saved: it not being a case of derelict or extra-perilous service.</p>

<p>Plaintiff claims rescission of a contract of - sale of a vessel, on the ground of fraud, and seeks an accounting.</p> <p>Held, on demurrer, that equity has jurisdiction, and that plaintiff has not an adequate remedy at law by suit for damages.</p> <p>On the merits, the Court finds that plaintiff was not deceived as to defendant’s title, and, if he was, has suffered no damage thereby; and orders an accounting.</p> <p>The mortgagee of a vessel, in possession, is not vested with the legal title until foreclosure, although the mortgagor is unable and unlikely to redeem.</p>

<p>Motion for new trial may be made after expiration of ten days from verdict, or after the close of the term, on the ground of new evidence discovered too late to bring the motion within the time allowed by statute: it would be reasonable to entertain such motion at the next term, provided the judgment had not been executed or the status of parties changed.</p> <p>In this case, the defendant having surrendered possession to plaintiff after judgment, the motion is denied.</p>

<p>The dedication by a church of a portion of its land, for a Royal Mausoleum, held to be of such a character that it ought not to be revoked or interfered with.</p> <p>The mausoleum held to be property of the trustees under the will authorizing its erection: and the Minister of Interior has no right to its possession, notwithstanding the Legislature have made an appropriation for pay of a keeper of the mausoleum: the Government is under no obligation to care for the property, as it does not belong to the state.</p>

<p>Assignees in bankruptcy, suing to set aside a conveyance as in fraud of creditors, held not to have a plain and adequate remedy at law.</p> <p>Equity can decree conveyance of a minor’s interest in land, where the conveyance to the minor was fraudulent.</p> <p>The assignees need not aver that the minor’s lands are needed to satisfy debts of the estate: but the Court orders the bill held till the assignees file a report showing condition of the estate.</p>

<p>Specific performance decreed, of a contract for sale of land, in favor of the vendee, as against the vendor and a purchaser from him: it appearing that the contract of sale was absolute and not conditional: that the vendor, by his actions, waived any tender by the vendee of a deed or the purchase price: and that the subsequent purchaser from the vendor was put upon enquiry and had sufficient notice of the first sale.</p>

<p>Plaintiff hired of Defendant a horse to use in an express wagon: Defendant warranted the horse as fit to drive in a milk-wagon: the first time Plaintiff harnessed and drove the horse, it kicked and broke the wagon and harness.</p> <p>Held, from the evidence, that the horse was of previous good character and the trouble must have been due to Plaintiff’s unskillfulness in harnessing or driving: and that the warranty, if any, was only that he was a good horse for a milk-wagon, not for an express wagon.</p> <p>It appearing that Plaintiff had the horse on trial, Defendant is not liable ■ for direct or consequential damage.</p>

<p>Under §513, Civil Code, exempting from personal taxes “all clergymen of any Christian denomination regularly engaged in their vocation:” held, that a Mormon Minister is entitled to the exemption.</p>

<p>Damage to cargo, by rust, held to be a peril of the sea, and not due to bad stowage.</p>

<p>Chapter 33, Laws of 1876, relating to Interpleader, does not apply to District and Police Magistrates.</p> <p>The words “Court” and “Judge” import a Court of record or a Judge thereof.</p> <p>Such power as is conferred by this statute is never given to Courts of inferior jurisdiction.</p> <p>A Police Justice having no jurisdiction to proceed under this statute, Mandamus does not lie to compel him to certify up an appeal from his decision.</p>

<p>Service of garnishee process on the manager of a corporation, at the corporation’s office, the president being out of the country, held to be service on the corporation.</p>

<p>Delivery of bunches of bananas, on the steamer wharf, to a servant of the buyer, who counted, sorted and ticketed them with names of consignees, held to be a sale and delivery: and the claim of the buyer, that the contract called for a delivery on board the steamer, held not proven.</p>

<p>Taxes on growing crops of cane, planted on land of a sugar company by outside planters, to be ground on shares, held to be .wrongly assessed to the company: the crops being the property of the planters.</p>

<p>The Court deprecates loose and epistolary pleading, and suggests that practitioners be personally mulcted in costs, as the only way of bringing them to a proper sense of their duty.</p> <p>Demurrer sustained for loose pleading in the bill.</p>

<p>While the bona fide holder of land, under a title proved to be defective, who has made improvements, may be entitled to recover their value, less rent, from the legal owner: yet, in the case at bar, it appearing that plaintiff made improvements on land to which she had no title, knowing the title was in another, the Court holds that she cannot recover the value of the improvements, notwithstanding that the real owner of the land was aware of the improvements and did not object to their being made, and in spite of the fact that similar cases frequently occur among Hawaiians.</p>

<p>A Court of Equity may enquire into the jurisdiction of a Court of Probate, although both jurisdictions are exercised by Judges of the same Court.</p> <p>A commissioner, appointed by a Probate Court to partition and sell at public auction real estate of a decedent, is not obliged to hire a licensed auctioneer to conduct the sale, but may do it himself.</p> <p>The Court refuses to grant an injunction to restrain the sale by the commissioner, upon the prayer of plaintiffs, who are the only licensed auctioneers in Honolulu, although not in partnership.</p>

<p>Houses, built on land by the husband of a tenant in fee, are fixtures.</p> <p>A house resting on stones held not to be a fixture.</p> <p>A house built by a father on his son’s land held, under the circumstances, not to be a fixture.</p> <p>Plaintiffs having recovered certain land by a suit in ejectment, and there being a crop of taro on the land; held, that so much of the crop as was planted by the father of the owner of the land, before the owner’s death, goes to the father, the remainder to plaintiffs.</p>

<p>The subjects enumerated as being within equity jurisdiction by the Statute of 1878 (Compiled Laws, page 389) are thus made matters for Equity, and the Statute finds that there is not an adequate remedy for them at common law.</p> <p>“Suits between co-partners” being one of the subjects mentioned, it is not necessary for plaintiff, in a suit for dissolution of partnership, to aver that he has not an adequate remedy at common law: nor need he aver that an accounting will show a balance in his favor, for he is equally entitled to know if he is liable for indebtedness of the firm.</p> <p>Demurrer overruled.</p>

<p>A steamer, with Chinese passengers, two of whom had the small-pox, arrived at Honolulu, and the passengers were landed and placed in quarantine: the Board of Health' declined to allow the vessel to depart, until a bond was given to cover' all expenses incurred by the Board of Health: the Master admitted his liability for the two sick passengers, but claimed that the ship was not liable for the others:</p> <p>Held, the steamer was liable for the expenses of all the passengers landed, and the action of the Board of Health, in requiring a bond, was proper.</p>

<p>A landlord’s claim for rent is a lien on a bankrupt’s estate, and has priority over ordinary debts.</p>

<p>A wife was under the age required by law at her marriage, and died before she reached that age: held, the marriage was not void but voidable, and the voidability ceased upon the wife’s death: the husband, therefore, is entitled to all his rights in the wife’s estate.</p>

<p>A steamer having been libelled for quarantine expenses, a bond was given for her release, upon which a common law action was brought; the next arrival of the steamer, she was again libelled for the same cause of action:</p> <p>Held, that as the common law suit was still pending, and the Admiralty suit was for the same cause of action, the latter must abate.</p>

<p>Under §1287, Civil Code, a wife cannot, without the consent of her husband, alienate her property: and the subsequent death of the husband has no effect to validate such a conveyance.</p> <p>A deed takes effect from its delivery, and if void then, is void always.</p>

<p>Plaintiff sues for damage caused by defendants falsely swearing that plaintiff was secreting his property, and thus procuring a writ of attachment on all plaintiff’s property, which destroyed plaintiff’s business and caused him to be put in bankruptcy.</p> <p>Held, that the validity of the attachment could not be raised in the former suit, for the jury, while trying the question whether Kerr owed Hyman, could not award Kerr damages for a wrongful attachment.</p> <p>The present suit being, in effect, an action for malicious prosecution, plaintiff must aver malice and want of probable cause: and as the averments of the complaint are not sufficient in this regard, the demurrer is sustained.</p> <p>Plaintiff, not his assignee in bankruptcy, is the proper person to bring the suit.</p>

<p>Motion for New Trial.</p>

<p>Under §820, Civil Code, a Justice of the Supreme Court, who has heard a case in the Intermediary Court, cannot hear the case again in the Supreme Court on appeal without a jury, and the objection cannot be waived by parties.</p>

<p>Demurrer to bill for dissolution of partnership sustained: 1st. For non-joinder of representatives of deceased partner: 2d. Because the partnership agreement, though annexed to the bill, was not made part thereof.</p> <p>It appearing that the bill discloses matters of equitable jurisdiction, leave ■ to amend is granted.</p>

<p>Where a party has obtained judgment on demurrer on some of his grounds, he is not barred from presenting grounds overruled in the first demurrer, in another demurrer to an amended complaint.</p> <p>In a suit for damages in the nature of malicious prosecution, the party injured, and not his assignee in bankruptcy, is the proper plaintiff.</p> <p>The complaint, in an action for malicious prosecution, held to sufficiently traverse the facts which led to the prosecution now claimed to have been malicious.</p>

<p>Demurrer sustained to indictment for libel, because the indictment fails to charge a malicious publication.</p> <p>It is libellous to say of a Government official that his conduct is treason to the state.</p>

<p>The Court declines to set aside certificate of a Commissioner of Boundaries and Royal Patents issued thereon: it appearing that plaintiff had sufficient notice of the proceedings before the Commissioner and acquiesced in the line found by him: and that a Royal Patent was issued upon said certificate, merely to give the metes and bounds, there being a former Patent for the same land by which the title passed.</p>

<p>A proceeding for collection of delinquent taxes is in rem, and also in personam: where the owner of real estate is known and judgment is asked against him, it is in personam, and the owner must be served with process or a judgment against him will not be good.</p> <p>In such a proceeding, an averment of demand for payment of taxes is . fundamental.</p>

<p>On the question of over-valuation by a tax-assessor, a failure to appeal to the Tax Appeal Board leaves the assessment fixed; and the tax-payer cannot obtain a reduction by an action at law.</p> <p>To tax an irrigation ditch and also the water flowing through it, is double taxation.</p>

<p>Motion for New Trial.</p>

<p>Defense of adverse possession held not proven.</p> <p>A right of fishery, appurtenant to an Ili, held to belong to defendants.</p>

<p>Under our fishery laws every resident on a land has -the right to fish in the sea appurtenant to the land and to sell the fish caught by him.</p>

<p>The presumption in favor of legitimacy of children born in wedlock, even though adultery be proven, must be held to apply to the ancient times in this country before marriage was introduced.</p> <p>A claim of heirship, based on the alleged affiliation, by a chief, of a child whose mother habitually consorted with another man as her “kane,” disallowed.</p> <p>The Court distributes the estate of decedent among the claimants whose heirship is proven.</p>

<p>Habeas Corpus.</p>

<p>By decree of Water Commissioners, plaintiffs were held entitled to water at certain times, sufficient for their taro: it appearing that defendants have diverted a portion of plaintiffs’ water, the Court awards damages: but as plaintiffs have not complied with the ' order of the Commissioners to clean out the water course, and have allowed defendants to neglect to furnish water on the designated days, the amount of damages is proportionately lessened.</p>

<p>A verdict and judgment in ejectment have same force as other judgments; but, in analogy to old rules and reasonings, a little more liberality should be exercised in granting a new trial in ejectment than in other cases.</p> <p>New trial granted for newly-discovered evidence.</p>

<p>Plaintiffs, as lessees of a sea-fishery, ask for an injunction against trespass and fishing by defendants; on the ground that some of defendants are insolvent and could not respond in damages, and because to sue for damages would occasion multiplicity of suits:</p> <p>Held, that no irreparable damage to the fishery is shown: and plaintiffs have an adequate remedy at law both by an action for damages, and also, under §396, Civil Code, by a criminal proceeding.</p> <p>Injunction refused.</p>

<p>The borrowing of money by an executor, and the pledging by him of securities in his hands, held to be unauthorized: but the pledgees not being put upon enquiry as to the executor’s misapplication of funds, and the misapplication not being fraudulent, the Court declines to compel the giving up of the securities by thé pledgees.</p>

<p>Plaintiffs in equity seek to set aside a judgment at law against them, on the ground that an accord and satisfaction pleaded against them in the action at law was obtained by fraud:</p> <p>Held, that although equity will in proper cases set aside a judgment at law, in this case the fraud could have been set up in the action at law as a part of plaintiff’s case; and as this was not done, the Court sustains demurrer to the bill.</p>

<p>§1007, Civil Code, allows an appeal on points of law to the Supreme Court in Banco from decision of a Circuit Judge in Probate.</p> <p>An absolute deed, admitted to probate as a will, is' conclusive on all parties, unless probate is revoked.</p>

<p>A partnership held to be proved by circumstances, there being no written agreement: and an accounting ordered.</p>

<p>The Government having assumed control of the Honolulu Water Works, mandamus will lie against the Superintendent of Water Works for a plain violation of his duty.</p> <p>The Government may make. reasonable rules and regulations in respect to the use of water from its pipes: and may deprive a party, transgressing, the rules, of his water privilege.</p> <p>It appearing that petitioner has violated reasonable regulations as to use of water, on account of which his water supply has been cut off, the Court declines to issue a writ' to compel the water privilege to be restored to him.</p>

<p>The Court declines to declare a deed, absolute in form and of record for fifteen years, to be a trust-deed; there being no fraud by the grantee and no proof of mutual mistake.</p>

<p>Intermediary Court.</p>

<p>Habeas Corpus.</p>

<p>Adverse possession held to be proven by cultivation of the land and payment of taxes: and the fact that defendant took out a Royal Patent for the. land, in the name of plaintiff, held not to be an admission of plaintiff’s title.</p>

<p>Where a fraud is charged to have been committed against a corporation in regard to allotment of shares, the corporation, and not aggrieved shareholders, is the proper party plaintiff.</p> <p>It appearing that certain shares, held by defendant, were not obtained without consideration or by fraudulent misrepresentations, the Court declines to order them delivered up for cancellation.</p>

<p>A collision at -night between two schooners, one running before the wind, and the other close-hauled on the port tack, held to have been caused by-lack of proper lookout on the former vessel, afid absence of lights on the latter: and damages divided.</p>

<p>District and Police Justices have jurisdiction of actions to recover summary possession of land only where relation of landlord and tenant exists between the parties.</p> <p>It appearing that the Police Magistrate had jurisdiction, the Court here declines to enquire whether he decided correctly on the evidence: and orders the writ of prohibition dissolved.</p>

<p>Under §1448 and §1454, Civil Code, the estate of a decedent held to descend, one-half to his widow and one-half to the child of his half-brother: and the grandson of decedent’s sister is excluded.</p>

<p>A party taking under a will does not take the property subject to the construction placed upon the will by the Probate Court: such construction is obiter dictum.</p>

<p>The Minister of Interior, as custodian of Government property, is the proper party to file a bill for an injunction against laying rails for a tramway in the streets of Honolulu.</p> <p>The Minister of Interior, under the laws investing him with control of public property and internal improvements, has no right to grant a franchise for a street railway in Honolulu: the right to grant such franchise rests entirely with the Legislature.</p> <p>It appearing that the contract, if any, as to a tramway, between the Minister of Interior and defendant, was in the nature of a franchise, the Court grants permanent injunction against the laying of the tramways.</p>

<p>A Court of Equity has jurisdiction to relieve against a forfeiture of land by landlord for non-payment of rent: and the objection that the tenant has a plain and adequate remedy at law, overruled.</p>

<p>A manager and part owner of an incorporated sugar plantation held to be a surety, and not a principal debtor, in a mortgage given by the corporation as security for advances: and therefore entitled to bring suit against the corporation to compel it to pay the debt, or indemnify him.</p> <p>Demurrer to bill sustained on other grounds, with leave to amend.</p>

<p>Plaintiff, as heir of Kamehameha IV., held entitled to certain lands described in Land Commission Award 10,806, said lands being the private property of said King, and not Crown Lands, although in possession of the Commissioners of Crown Lands, under claim of title.</p> <p>The conveyance by plaintiff of all her interest in Crown Lands, “and of all lands commonly known, called or reputed to be Crown Lands,” held not to include the land in question.</p>

<p>The publisher of a newspaper held responsible for an article in the paper reflecting upon a decision of the Chief Justice: and fined for contempt.</p>

<p>Plaintiffs, as the heirs of Kamehameha IV., held entitled to premises on Merchant street, Honolulu, known as Honolulu Hale, as against the Commissioners of Crown Lands: said premises being the private property of said King, and not Crown Lands, although in possession of the Commissioners under a claim of' title.</p> <p>A conveyance by Ruth Keelikolani of all her interest in Crown Lands, held not to include the land in question.</p>

<p>A corporation, named as grantee in a deed, held to he a necessary party defendant in a suit to cancel the deed: the fact that it is a foreign corporation, not registered under our laws, makes no difference.</p> <p>It must be alleged that the deed is in Defendant’s possession or that the claims an interest in it.</p> <p>Where one agreement refers to another of even date as an additional consideration: some averment disposing of the latter agreement should be made in the bill.</p>

<p>A contract for planting sugarcane by one party and grinding it by another is assignable by either, and enforceable by the assignee of each against the assignee of the other.</p> <p>Sundry planting contracts construed as to amount of plantcane and ratoons to be furnished by one party and ground by the other.</p> <p>Injunction will not be granted to restrain the bringing of suits in law and equity, upon the mere apprehension or fear that such suits will be brought.</p>

<p>A tenant by curtesy has the right to lease the land inherited by his children from their mother, until the children become of age.</p> <p>A father, as such, has no authority to lease his children’s land.</p> <p>Upon the majority of the children, a notice to quit must be given by tenant by curtesy, as a pre-requisite to a suit.</p>

<p>Cousins of the whole and half-blood held to have title to land, in spite of their failure to assert it for a long time.</p> <p>Defendants having acquired possession without notice of plaintiffs claim, nominal damages only are awarded.</p>

<p>Defendants held to be trustees for plaintiff as to ■ certain lands purchased by them: the facts as to plaintiff’s claim being such as to put defendants on enquiry, and to constitute notice in equity.</p> <p>Such a trust can be proved by parol and is not within the Statute of Frauds.</p>

<p>The sale of a sugar plantation set aside: it appearing that the grantor was of weak mind, that false representations were made by the grantee, and that there was a failure of consideration.</p>

<p>A set-off held to be properly pleaded, and to be a demand of like kind with plaintiff’s claim.</p> <p>Defendant, in ejectment, will not be held liable for mesne profits taken, prior to his own entry, by those under whom he claims title.</p>

<p>A mortgage given two months before the' bankruptcy of the mortgagor held not to be in fraud of creditors: the mortgagees not having reasonable cause to believe that the mortgagor was insolvent.</p>

<p>A deed set aside, it appearing that the grantor, an aged Hawaiian woman, was of feeble mind, and that the grantee unduly influenced her.</p>

<p>Plaintiff held entitled to recover full interest on a mortgage, the defense of tender not being made out.</p>

<p>Questions of over-valuation or wrong ownership should be settled by the Court of Tax Appeals: but the Supreme Court has jurisdiction of cases involving construction of the statutes, or where principles of law are violated: which would include double taxation.</p> <p>Under the Tax Law of 1882, taxation of a “debt” is illegal.</p>

<p>The taxing of water as the property of a Ditch Company, and again as giving increased value to land irrigated by it, held to be double taxation, and illegal.</p> <p>The question involved is not merely one of valuation.</p>

<p>The signing of an assessment blank by the person making and filing it, held to be waived by the failure of the assessor to require it at the time of filing: and the assessor having refused to grant a certificate of appeal because said blank was not signed, the duty of the tax-payer to file a written notice of appeal was also waived. Mandamus issued to compel the assessor to grant a certificate of appeal.</p>

<p>A chattel mortgage of a trader’s stock held to be in fraud of creditors and set aside: the mortgagee having reasonable cause to believe that the mortgagor was insolvent.</p> <p>The acknowledgment of a chattel mortgage being defective, for failure of the notary public to attach his seal and comply with the statutory forms: held, it was not entitled to be recorded, and the recording of it must be treated as a nullity.</p>

<p>District and Police Justices have no jurisdiction to try trespass quare clausum fregit, where the plea is liberum tenementum.</p>

<p>A decree of the Probate Court was made in June, 1859, ordering that the guardian ad litem, of a minor convey the minor’s estate: on a petition by the minor to set this decree aside, made in April, 1884, held, that the plaintiff is not barred by the statute of limitations, because she married before she attained majority, and the disability of coverture was not removed till her husband’s death in 1881.</p> <p>The minor, being a trustee at the date of the decree of 1859, was not entitled to her day in Court, after her majority, to disaffirm.</p> <p>A decree made by consent of counsel, without fraud or collusion, cannot be set aside.</p> <p>The purchaser, at an administrator’s sale of real estate, made by order of a Probate Court, held to be a bona fide purchaser without notice, as against the claim of an heir to the estate, made ten years after such sale, that the sale was in fraud of her rights.</p>

<p>New partners, taken into a firm after the making of a note by the firm, held not to be liable on the note, there being no proof of a new promise by them to pay it.</p>

<p>The “reserve fund” of a corporation, consisting of credits, is not taxable.</p> <p>Sugar was laden on a vessel at Honolulu prior to July 1st, and the bills of lading signed and mailed to foreign consignees: the vessel sailed from Honolulu at noon of July 1st: held, that the sugar was, for purposes of taxation, still in the possession and control of the shippers, and taxable to them.</p>

<p>An action of trespass qua/re clausum fregit, held to abate upon death of plaintiff.</p>

<p>Contracts of sale of a sugar plantation construed to mean that all indebtedness of the plantation, prior to July 1st, 1883, was to be assumed by defendants: and plaintiff held entitled to recover back all of such amount paid by him on plantation account.</p>

<p>An execution must be postponed to the lien of a prior attachment.</p>

<p>The vendor of land has no implied lien for the unpaid purchase price, as against the vendee and a subsequent purchaser with notice.</p>

<p>Plaintiffs, on a country road, left their horses by the roadside and went into a restaurant: defendant impounded the horses, claiming that they were tied to his fence and had pulled the rails off:</p> <p>Held, the horses were not estrays and were not liable to be impounded: and even if they were tied to defendant’s fence and damaged it, the damage cannot be recovered under the statutory proceedings for impounding.</p>

<p>In an action for foreclosure of mortgage, against several defendants, one of them cannot plead as a set-off his claim for damages against plaintiff for breach of contract.</p> <p>The mortgagee of a sugar plantation, who had made entry and carried on the plantation, held entitled to allowance for advances, commissions and interest.</p>

<p>The Court declines to issue an injunction against proceedings in an action of ejectment: for although plaintiff in ejectment had delayed bringing suit for eighteen years, with full knowledge of adverse claims, yet his right to recover was a legal one and could only be barred by the full running of the statutory period of twenty years.</p> <p>Temporary injunction granted against the ejectment suit, in order to allow the settlement of a question in the Probate Court as to a matter material to the action of ejectment.</p>

<p>“Pak Kap Pio,” a Chinese lottery, is a “game.”</p>

<p>Defendants having been decreed to be owners of the premises known as “Honolulu Hale” as against the Commissioners of Crown Lands, the Minister of Finance now sues defendants to recover amount of a mortgage on said property, formerly paid by the Government under the belief that the property was Crown Lands.</p> <p>Held, on demurrer, that the Commissioners of Crown Lands are not necessary parties defendant: that the devisee, not the personal representative, of a deceased. owner is the proper person to be sued; and that the Public Treasury, having paid a mortgage on the property under the mistaken idea that it was Crown Land, has a lien on the premises to the extent of its value at the time the mortgage was released.</p>

<p>Equity may enforce, by injunction, the negative part of an agreement, although the affirmative part cannot be specifically enforced by decree.</p> <p>Demurrer sustained, to bill for injunction, for lack of allegation of irreparable injury.</p> <p>An agreement for use of telephones held to be a license without consideration, revocable by the Telephone Company: and injunction to prevent removal of telephones and the bringing of suits at law for use thereof, refused.</p>

<p>An action for damages caused to the credit of a trader by the conversion, of his goods by a creditor, whereby the trader was forced into bankruptcy, does not pass to the assignee.</p>

<p>A recital in a deed, informally drawn in Hawaiian, held to be a covenant of warranty, but only as to the title recited in the deed, and not as to other or better titles.</p>

<p>Although a transfer of all a trader’s property may in most instances be ■' treated as an act of bankruptcy, yet the assignees, by admitting proof of claim and paying a dividend on balance of the debt secured by the mortgage now sought to be attacked, are precluded from contesting the validity of the mortgage.</p>

<p>A transfer of property by an insolvent trader, to a creditor who had reason to believe the insolvency, held to be in fraud of creditors under our statute, and set aside.</p>

<p>Partnership debts are joint and several: a creditor may proceed against the estate of a deceased partner, whether the surviving partners be solvent or insolvent.</p> <p>The discharge of executors of a deceased partner postponed until after the partnership has been wound up.</p>

<p>Covenant of warranty in a deed held to he a warranty only of the grantor’s title and not of a perfect title.</p>

<p>A creditor took possession of a trader’s stock under an agreement: held, the creditor was liable to the trader’s assignee in bankruptcy for all goods bought by the bankrupt from outside parties: and the value of the goods at date of conversion, as per an inventory taken at that time, less expenses of auction sale, held to be the measure of damages.</p>

<p>A deed set aside for fraud of the grantee: it appearing that the grantor,an aged Hawaiian, was imposed upon, and induced to make.-an absolute conveyance' under the belief that he was signing a trust-deed.</p>

<p>Our garnishee law does not authorize the attachment of property in the hands of a third party in aid of a judgment: but only “debts” due by the garnishee to the principal defendant.</p>

<p>Judgment in ejectment may be rendered severally against defendants, for the portion of land held by each, notwithstanding that they were sued jointly.</p>

<p>A claim paid by a debtor of an intestate, after the intestate’s death, to a creditor of the intestate, cannot be set-off against the debtor’s own promissory note to the intestate.</p>

<p>Applications to set aside deeds should be discouraged, unless fraud is clear and palpable.</p> <p>Plaintiffs haying failed to allege or prove that a deed, sought to be set aside, is different from what the grantor intended, the bill is dis- • missed.</p>

<p>Although a Justice of the Supreme Court has the right, on Habeas Corpus, to review the acts by which the arrest of a party, on mesne process in a civil action, was obtained from another justice, yet the best course is to apply to the justice who issued the writ, on a motion to discharge the writ.</p> <p>A seal is not necessary to the validity of a bond.</p> <p>In a complaint for the arrest of a. debtor, alleged to be about to quit the Kingdom, an averment verified by oath, on information and belief, that defendant is about to quit the Kingdom, is sufficient: and it is not necessary to add “with intent to evade payment of his debts.”</p>

<p>Appeal prom Award op Commissioners.</p>

<p>A trust deed expressed that the property conveyed was for a wife’s separate use and was not to be mortgaged or alienated. Husband and wife mortgaged the property to secure a debt for lumber to repair the family dwelling:</p> <p>Held, the mortgage was invalid: and the plaintiff’s claim stands' on its common law footing and cannot be.enforced in equity.</p>

<p>A widow may be barred of dower by adverse possession of heir or devisee of her husband: but her ouster must be shown.</p>

<p>Under modern pleading it is not proper to style an action of assumpsit “trespass on the case upon promises:” but it appearing from the declaration that the action is assumpsit, the objectionable averment is treated as surplusage.</p>

<p>Plaintiff in equity alleged eviction from leased premises by the Government under alleged right of eminent domain: held, on demurrer, that the allegation was sufficient, and whether the Government took legal steps in the eviction is a matter of proof.</p> <p>If plaintiff’s allegations are true, he is entitled to an apportionment of rent, unless he has deprived himself of it by his conduct or neglect.</p>

<p>Section 915, Civil Code, as amended, giving District Justices jurisdiction of civil cases under $200, does not conflict with Section 1423 giving a special jurisdiction over masters and servants.</p> <p>The pendency of a suit by a contract servant for wages is no bar to an action by him to cancel the contract for a breach by the master.</p>

<p>Process of garnishment against W., who .was out of the Kingdom, was served ón his attorney in fact: held, not a proper service.</p>

<p>A release by a creditor to the administrator of a deceased partner, held to bar a further claim by the creditor against the firm.</p> <p>The manager of a partnership held entitled to wages from the re- ' ceiver.</p>

<p>Habeas Corpus.</p>

<p>A tenant holding over after end of term,' failed to pay rent, and the landlord distrained and. removed goods, prior to the bankruptcy of the tenant: Held, the landlord was entitled to the proceeds as against the assignee in bankruptcy.</p>

<p>The Court may, by mandamus, compel Inspectors of Election- to place a voter’s name on the list.</p> <p>In a petition by a voter for mandamus against the Inspectors, he must state his title to the right claimed.</p> <p>Application for an extraordinary remedy must he perfect in the first instance, and amendments cannot be allowed.</p>

<p>A receiver, appointed to carry on a sugar plantation upon which there were outstanding mortgages, held to have a prior lien upon receipts of the plantation, but not upon the corpus of the property as against the mortgagees.</p>

<p>The prosecution cannot, by search warrant, compel the production of the books of account of a defendant, to be used as evidence against him.</p>

<p>A Court of Equity can only interfere with a judgment at law where the complainant has an equitable defense of which he could hot avail himself at law; or had a good defense at law, of which he could not avail himself, owing to fraud or accident, without his negligence.</p>

<p>Plaintiff avers that defendant claims title to plaintiff’s land under an alleged lease, which claim is a cloud on plaintiff’s title: and asks that the lease he cancelled and defendant enjoined from trespassing.</p> <p>Demurrer sustained, because it is not alleged that any trespass has been committed or would cause irreparable injury: and the mere statement that defendant claims the land is not sufficient.</p>

<p>A devise by a husband to his wife of all his property, to go to their children at her death, held not to come within the Rule in Shelley’s Case, and to give the wife only a life estate.</p>

<p>An estate in fee held to be created by a devise in a will, although there was no limitation to heirs of the devisee: and a condition against alienation held to be incompatible with the estate to which it is annexed, and therefore void.</p> <p>The devisee held not to be estopped by his conduct from claiming his estate in fee.</p>

<p>Pledging of certificates of stock as collateral security, made by a mere delivery of certificates, without endorsement or transfer, vests only an equitable title in pledgee: the legal title remains in .pledgor, and passes to his assignee in bankruptcy.</p>

<p>Long acquiescence in adverse possession, though not a bar till after twenty-years, held to he significant.</p> <p>Plaintiffs in ejectment held not to have sustained the burden cast on them of-proving their title.</p>

<p>Habeas Corpus.</p>

<p>A fraudulent interlineation in a written contract, made after its execution, by one of the parties, renders the instrument void in toto.</p>

<p>Salaries in the Appropriation Bill are payable monthly.</p> <p>A petition for Mandamus alleged that His Majesty appointed petitioner as Chamberlain: the return of respondent denied that petitioner had been legally appointed: held, not a sufficient denial of the allegation; if respondent intended to question the validity of the appointment, he should have alleged the grounds on which he relied.</p> <p>The office of Chamberlain is personal to His Majesty; there is no legal necessity for the appointment to be by commission or in writing, and it does not require the approval of the Cabinet.</p> <p>But the Chamberlain having been absent from the Kingdom during the period for which he claims salary, he was not in a position to perform the duties of his office, and was therefore not entitled to the salary appropriated by the Legislature: and the Court declines to issue a writ of mandamus to compel the Minister of Finance to pay the salary.</p>

<p>At Common Law the Attorney-General has the right, on his sole responsibility, to enter a nolle prosequi in a criminal prosecution: but the Common Law is not in force, as such, in this country.</p> <p>The uniform practice in the Supreme and Circuit Courts of this Kingdom has been that the Attorney-General “asks leave of the Court” to enter a nolle prosequi, giving some satisfactory reason therefor.</p> <p>The Attorney-General cannot continue a criminal case, except by leave of the Court, for cause' shown: and the same rule must be applied as to entry of a nolle prosequi.</p> <p>The Court will not compel the Attorney-General to prosecute, nor punish him for contempt if he declines: but it may refuse to consent to the entry of a nolle prosequi, and consent is refused in the present case.</p> <p>Note. — Mr. Hartwell and Mr. Neumann, of counsel for the defendant, requesting, immediately on the rendering of this' opinion, that this Justice should himself hold the trial, he assented to do so. Trial was had later in the Term, resulting in a verdict of Not Guilty.</p>

<p>Rights of persons in this Kingdom, -under Writs of Habeas Corpus, are as fully secured by Constitutional and Statutory provisions as if the enactments of English law in this respect were spread on our statute books: and in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.</p> <p>Apuna was sentenced by a Circuit Court to pay $300 fine, and costs, for selling opium without a license: he was imprisoned at hard labor by the Marshal: Held, as the sentence and the mittimus failed to express that the defendant should be imprisoned at hard labor in default of paying his fine, the imprisonment was illegal, and he must be discharged.</p> <p>Costs can be imposed by the Court as part of a sentence.</p>

Obscene Publication. Brief of A. S. Hartwell for Defendant. The facts shown by the prosecution do not constitute or show a criminal offense.

Assumpsit. Agreed Statement of Facts. The respective parties hereto, by their attorneys, agree for the purposes of this trial, that the following are the facts which exist and would be proved in this cause, were witnesses called for the purpose of making proofs, to wit: 1. That said defendants were, on January 1st, 1886, and have ever since that date continued to be partners in business at Kahului, in the Island of Maui, under the firm name of See Hop & Company. 2.

<p>Equity has concurrent jurisdiction with law in matters of account, where from their complexity and length Courts of Law are incompetent to examine them with necessary accuracy.</p> <p>Plaintiff’s claim for unpaid customs duties on liquor withdrawn from bond by defendant, held not to be so complicated that it could not be submitted to a jury.</p> <p>Plaintiff held to have a plain and adequate remedy at law, by an action of Debt, or a submission to Referees, or a statutory action for Discovery.</p> <p>The fact that defendant made an assignment for benefit of creditors, after this cause of action arose, does not give Equity jurisdiction: nor will it occasion a multiplicity of suits.</p> <p>Demurrer sustained.</p>