Volume 8 — Hawaii Reports

<p>The outlying boundaries oí an Ahupuaa having been settled, whatever land is not shown to be of the Hi, within the Ahupuaa, belongs to the Ahupuaa.</p> <p>A well considered judgment of a Boundary Commissioner is entitled to great respect, and should not be set aside on slight grounds.</p> <p>It is impossible that there be an Ili within an Hi.</p>

<p>Exceptions From Fourth Circuit Court.</p>

<p>On the 27th March, 1888, a voluntary deed was made by-Cayford to Cook, of personal property, upon certain trusts in favor of his, Cayford’s, wife. A judgment was recovered by Colburn against Oayford, 25th April, 1889. Oayford was adjudged bankrupt Aug. 20, 1889, and defendant was appointed assignee. The action was by the Trustee to recover the property from the assignee in bankruptcy.</p> <p>Held, that as Oayford was not indebted .to any one when he made the deed, and as Colburn did not become a creditor until after the deed was signed, the case falls within the principle of Dowsett vs. Kapilau, 3 Hawn., 709, that “ a voluntary conveyance, not fraudulent in fact, is good as to subsequent creditors, though void as to antecedent creditors.”</p> <p>The deed held good, and judgment for plaintiff affirmed.</p>

<p>A person holding a Commission as a Special Constable, unpaid, is not thereby disqualified from sitting as a Juror on a Criminal Trial.</p>

<p>A lease of land, the property of the Government, exceeding $300 in value, made subsequent to the enactment of the statute of 1876, is invalid when it is made privately and not at public auction, after advertisement, and as prescribed by the statute.</p> <p>It is not made valid by the written consent of the Minister of the Interior to an assignment..</p> <p>Third parties acquire no title by the payment of rent.</p> <p>An action of ejectment may be brought, although rent has been paid in advance of the time of bringing the action.</p> <p>The exceptions are overruled.</p>

<p>Appeal prom Order op Judd, C.J.</p>

<p>The respondent refused to pay the salary of the relator as Chamberlain to His Majesty.</p> <p>Held, that the appointment of Chamberlain was personal to His Majesty, an.d did not require the approval of the Cabinet.</p> <p>Held, that the salary of office follows the title to it.</p> <p>The Writ of Mandamus is made absolute.</p>

<p>Appeal prom Dole, J.</p>

Submission without Action. Submission. The undersigned, C. P. Olsson, Master of the Swedish bark Ida, plaintiff, and Theo. H. Davies & Co., Agents of Lloyds and the Indemnity Mutual Marine Insurance Company, respectfully represent: That there is a question in difference between them which might be the subject of a civil action in the Supreme Court, based upon the following facts which are agreed upon.

Exceptions to Order of Judd, C.J. By the Court. Upon consideration of the pleadings and the law in this case, we are opinion that the demurrer should be sustained, and we therefore confirm the decision of the Chief Justice, upon the reasoning and authorities therein.

<p>In an action of tort, the defendant, a school teacher, having cut the hair of a pupil, the plaintiff’s daughter, without consent:</p> <p>Held, that an,officer of the Board of Health had no authority to direct the school teacher to do it, and that the school teacher, being without authority to cut the hair as a sanitary measure, could not, either, do it as a punishment.</p>

Appeal prom Preston, J. Excision op Preston, J., Appealed prom. This is a suit for a declaration that a purchase of land, made by the defendant Kauhi in his own name, was made by him as the agent and for the use of the plaintiff Mahoe and the defendant Keahi. The defendant Kauhi denied the agency, and averred that if there had been an agency it had been determined. The defendant Keahi, at the hearing, disclaimed any interest in the purchase.

<p>Appeal from Bickerton, J.</p>

<p>The provisions of the Act “Relating to the Fire Department of Honolulu,” approved September 6,1888, constitute the Board of Representatives of the Fire Department the judges of the validity of elections of officers of the department.</p> <p>The writ of Quo Warranto will not lie to inquire into the validity of the election of First Assistant Engineer.</p> <p>Demurrer to the petition sustained, and writ quashed.</p>

<p>The findings of fact of a justice trying a case, with jury waived, will only be set aside when the verdict of a jury would be set aside.</p>

<p>An estate having been sold on the 21st day of September, with a covenant against incumbrances, and with no express agreement concerning the payment of the taxes:</p> <p>Held, that the taxes became a fixed charge against the owner of the property on the first of July preceding, although the valuation of the property had not then been determined by the assessor ;</p> <p>Held, that when a case has been tried by a Justice of the Court with jury waived, the Court in banco will not on a bill of exceptions review his findings of facts, otherwise than it would the verdict of the jury.</p>

<p>Appeal erom Commissioners op Ways.</p>

<p>Question Reserved by McCully, J.</p>

<p>The Supreme Court has jurisdiction to hear cases relating to the assessment and collection of taxes, notwithstanding the provision of a Tax Appeal Court, from which there is no appeal, whenever it appears that there are involved questions touching the constitutionality or construction of the Statute.</p> <p>The existence of a clause in a lease providing that the lease shall not be assigned by the lessee without the previous consent of the lessor, under penalty of forfeiture of the lease, does not exempt such leasehold premises from the tax to which leaseholds axe liable.</p> <p>A tax which was based on an estimate of the income derivable through the remainder of the term of the lease, held to be virtually an income tax, and not legal.</p>

<p>Under Section 1330 of the Civil Code, the question of the husband’s having reduced to possession choses in action of his wife, who obtains a divorce from him on the ground of his adultery, or other offense amounting thereto, is not applicable.</p>

<p>The covenant on the part of the vendors in a bill of sale of merchandise in a store and the good-will of the business, for the time of five years within a radius of five miles, was that “they will not during such time or in said area engage in or interest themselves in carrying on or conducting a mercantile business, and if they, or either of them, shall so engage in mercantile business, they or he shall thereupon forfeit and pay to the said party of the second part, and his executors, administrators and assigns, one thousand dollars.”</p> <p>Held, although the sum of one thousand dollars is liquidated damages, equity has jurisdiction to enjoin the defendant from committing a breach of the covenant, it not appearing that the payment of the one thousand dollars was an alternative which the vendor (defendant) had the option to adopt, in lieu of a strict performance of the contract.</p>

<p>Appeal from Commissioners of Ways.</p>

<p>Appeal from Bickerton, J.</p>

<p>An administrator was sued on a promissory note of Ms intestate. He testified for the plamtiff that the claim had been duly presented to him withrn the six months required by statute, and that after he had rejected the claim suit was commenced witMn two months from such rejection,</p> <p>Held, that a motion for non-suit by defendant, administrator, on the ground that he, the administrator, had not complied with the law requiring publication of notice to creditors, was properly deMed. It will not lie in the administrator’s mouth to say that he had neglected Ms duty.</p>

<p>A bill by a Tax Assessor for discovery upon a Bank to disclose tbe names and amounts of its depositors, beld demurrable.</p> <p>Tbe ordinary deposits in a bank become tbe property of tbe bank, and tbe bank becomes tbe debtor of tbe depositor tberefor. Tbe bank, therefore, and not tbe depositor, is liable for taxes on tbe deposits that were in tbe bank on tbe 1st July.</p>

<p>The fixed rent in a lease was $5,000 per annum. The lease contained also an agreement that four per cent, of the produce of the demised premises might be paid in lieu of rent; but in no case should the percentage amount to less than $5,000 per annum. There was also an executory agreement in the same instrument for the sale of wood growing on the land for $5,000 of paid-up stock in the plantation.</p> <p>Held, that the instrument required seven dollars stamp duty; five dollars on lease, one dollar on agreement and one dollar on the executory agreement.</p>

<p>Appeal from Bickerton, J.</p>

<p>The defendant was charged with malicious injury in wounding a dog, the property of another, while trying to drive him from his premises, where the dog was trespassing and committing depredations.</p> <p>Held, that the defendant was not acting without justification or excuse, and that the charge was not sustained.</p>

<p>Appeal from Order op Judd, C.J.</p>

<p>Assessments for the betterment of estates •will be limited to estates abutting on the highway or street which has been opened or widened.</p>

Submission without Action. Submission of Case without Action, under Section 1140, Civil Code. The facts agreed upon are : 1st. The Papaikou Sugar Company, a corporation, is- the owner of the Ahupuaa of Papaikou, on the Island of Hawaii. The said Ahupuaa is that awarded to Aarona Keliiahonui, being Apana 1 of L. C. A. 11,215. 2nd.

<p>Appeal prom McCully, J.</p>

<p>A Sugar Plantation returned to the Assessor its various tracts of lands, held by it under lease, at a value of $15 per acre, which wap raised by the Tax Appeal Board to $20, as the value of cane land held in fee simple; and paid the taxes thereon. The Plantation was assessed on these same lands the sum of $19,113.25, as the value of their leasehold interest in the same.</p> <p>Held, that as the leasehold interest was assessed close up to the assessment on the reversion, it was double taxation, and taxes paid thereon under protest can be recovered.</p>

<p>Appeal from Police Justice of Honolulu.</p>

<p>• The license for the Chinese Theatre contained a condition, “ There shall be no playing of musical instruments, beating of gongs and other noisy musical instruments later than 10 o’clock at night.”</p> <p>Held, that the Minister of the Interior had authority to insert conditions in the license, but they must be reasonable. That the condition was not reasonable.</p>

<p>The plaintiff having attempted to set tip an equitable defense in a suit at law brought by this defendant against him, was prevented from doing so by the ruling of the Court, and judgment was rendered against him. The defendant now pleads that judgment in bar.</p> <p>Held, that the judgment is not a bar to his action in equity, based on this equitable claim.</p>

<p>Appeal prom Police Justice op Honolulu.</p>

Submission Without Action. Submission op Controversy. The Oahu Railway and Land Company, duly incorporated under the laws of the 'Hawaiian Islands, is the owner of a railway connecting Honolulu with Ewa, on the Island of Oahu. The said railway is in good order, thoroughly equipped and is in active operation. Besides the railway and its equipment, the said company owns certain other property consisting of lands and chattels.

<p>The defendants, livery stable proprietors, owned several hack carriages. Their mode of business was to let or give them to be plied as hacks to drivers for whom they procured driver’s licenses. The drivers paid the defendants $30 per week for a hack with two horses, maintained by the defendants and running from their stand. The drivers sought business and took for their own benefit the proceeds above the reserved receipts. The defendants exercised the right to discharge or temporarily suspend a driver for misconduct.</p> <p>Held, that these circumstances and the statute, Chapter 27 of the Laws of 1884, constituted the driver a servant of the defendants, rendering them liable for damage resulting from collision.</p>

<p>Appeal prom Order op Bickerton, J.</p>

<p>The Charter of Incorporation of .the “Anglican Church in Hawaii” contained the following section: “The trustees shall be presided over by the Bishop or his commissary, who may or may not be one of the trustees; provided, however, that in case of a vacancy of the See, or if there be no commissary especially authorized in this behalf, the Archdeacon may preside; and if there be no Archdeacon, the Senior Priest; and if there be no Priest, the trustees shall appoint their own president, and it shall be the duty of the said president to call a meeting on receiving a written request so to do from one third of the whole body.”</p> <p>Held, this section means that the presiding officer of the corporation for the time being, whether he is the Bishop, or his commissary, or the Archdeacon, or the Senior Priest, or the appointee of the trustees, is subject to the requirement of calling meetings at the written request of one-third of the members of the corporation. The calling of a meeting is a ministerial act and the presiding officer has no discretion in the matter, but must call the meeting upon receiving a legal request so to do, and not look to the object of the proposed meeting.</p>

<p>A motion to re-open a judgment of non-suit, made at the next term, is too late. The power of the Court over its judgments ceases upon the final adjournment of the term in which they are rendered.</p>

<p>Exceptions from Fourth Circuit Court.</p>

<p>A judgment debtor was arrested upon allegations of fraud, in pursanee of Section 953 of tbe Civil Code. On the evidence adduced no fraud was found and the debtor was discharged from custody.</p> <p>Held, on appeal, that the authority to issue a warrant of arrest, on a charge of fraud, implies the power to discharge from custody when the fraud is disproved.</p>

<p>On the first day of July, 1888, the plaintiffs were in possession of the property of the Hawaiian Tramways Company, limited, and engaged in the work of constructing the street railways under the franchise to said company. While in such occupancy, and after the first day of August, the Assessor for Honolulu assessed to plaintiffs the said franchise. The tax was paid by plaintiffs under protest, and they brought action to collect the same. The Hawaiian Tramways Company, limited, did not file their corporation papers and notices in the Interior Department until August 29th, 1888. The plaintiffs made no return of the franchise, and did not disclose to the Assessor the names of their principals, or the fact that they were in possession merely as agents and contractors.</p> <p>Held, that the corporation had no existence under the Hawaiian laws on the first of July, 1888. That the plaintiffs were in possession of the franchise. That it was the duty of the Assessor to make an assessment according to the best information within his reach. That, under the circumstances, the plaintiffs were liable for the taxes.</p>

<p>Omission of names in two places in blank forms, used in petition for letters of administration, and in the order therefor, are not fatal, as the real meaning and intent of the petition and order can be gathered from other parts of the same.</p> <p>The Clerks of the Supreme Court are authorized to issue and sign orders and notices of hearings in probate.</p> <p>The action being assumpsit by the administrator to recover claims of the deceased intestate, it is not open to the defendant to contest the appointment of plaintiff as administrator, or to question collaterally the validity of his apponitment.</p> <p>Plea in abatement overruled.</p>

<p>The defendant having made the return to the Assessor of estate belonging to his wife, claiming to own an interest therein, and in all other respects acting in her behalf and stead, may properly be made defendant and sole defendant in an action by the Tax Collector for the recovery of the tax.</p> <p>The law prescribing no other rule of valuation of estate than its full cash value, or the price it might bring if sold at auction, the mere judgment and appraisement of the Assessor or the Board of Tax Appeals cannot be set aside by this Court, on account of a valuation claimed to be excessive.</p> <p>Exceptions overruled.</p>

<p>Motion of tiie prosecution to dismiss appeal from conviction in Police Court of Honolulu of violation of Chapter XL., Laws of 1886, amending Vagrancy Act, on the ground that no appeal lies from conviction of vagrancy under common law rules:</p> <p>Held, that under Hawaiian statute law, appeals lies in all cases, both civil and criminal, from Police and District Courts, unless an exception is made by statute.</p> <p>Held, that vagrancy being a status and not an act, the addition of offenses to the vagrancy statute under the amended law, which are distinctively acts, does not thereby attach the quality of vagrancy to the commission of such acts.</p>

Submission without Action. Submission. The undersigned, Mioshi, a Japanese by birth, and the Hilo Sugar Company, respectfully represent that they are parties to a question in difference which might be the subject of a civil action. That they have agreed upon a case containing the facts upon which said controversy depends, which are as follows: 1. That said Hilo Sugar Company is a Hawaiian corporation, doing business in the District of Hilo, Island of Hawaii. 2.

<p>If a pound-keeper has not followed the statute in the acts required of him up to and including the sale, the owner of .the legally impounded animal, illegally sold, can recover its full value of the pound-keeper without allowance of pound fees and expenses.</p> <p>The pound-keeper delayed three days after the impounding before posting the notices. Under the statute requiring the notices to be posted “ as soon as possible after the impounding, ” the statute was not complied with. “ As soon as possible ” means “ within a reasonable time, with an undertaking to do it within the shortest practicable time. ”</p>

<p>The facts, upon which the alleged misconduct of an attorney is based, not having been an issue in a case passed upon by the Court, and not occurring in the presence of the Court, the attorney is entitled to have specific charges preferred against him, and an opportunity for meeting them.</p>

<p>A peremptory writ of mandamus issues, as a matter of course, after a decision directing it to be issued.</p> <p>If the issue of such a writ is delayed, when it is issued it relates back to the time of filing the decision directing it to be issued.</p> <p>In case of such delay and a performance of the substance of the command of the writ before it is issued, such performance would be a sufficient answer to a prosecution for contempt for violation of .the writ.</p>

<p>Contempt of Court.</p>

<p>When the verdict in an action oí ejectment was for the possession of land, without damages, the bond by defendant, on his motion for a new trial, not to remove property liable to execution, is not necessary.</p>

<p>A bond by defendant to plaintiff for costs, on a. motion for a new trial, is a sufficient compliance with the Statute, Sec. 1156, of the Civil Code.</p>

<p>In an action of ejectment, the plaintiff’s title being by purchase upon a foreclosure of mortgage, there appearing to be some variation between the name of a foreign investment company as set forth in the mortgage and as registered in the office of the Interior Department:</p> <p>Held, that there being no doubt of the sale having been made in pursuance of mortgage executed by the mortgagor, the defendant could not (the corporation not being a party) sustain a contention which would invalidate this mortgage.</p>

<p>The defendant being charged with the illicit sale at Hilo, Hawaii, of spirituous liquors, offered the defense that he was the servant of a licensed spirit dealer in Honolulu.</p> <p>Held, that the license of such dealer not being produced in Court, he was to be considered as unlicensed, by Complied Laws, page 699, Section 35.</p> <p>Held, that the dealing of the defendant as a servant or agent of the licensed dealer in transferring or disposing of spirituous liquor is to be considered an illicit sale, in view of the provisions of sections two and three of Chapter 67 of the Session Laws of 1888.</p> <p>Exceptions are overruled.</p>

<p>An infant who hires a horse for pleasure driving is not liable for damages for the death of a horse, it appearing that the horse died from immoderate and careless driving merely, and not in consequence of a willful tort on the part of the infant bailee.</p> <p>An infant who hires a horse for pleasure driving is liable in damages for injury to the horse arising from immoderate driving, if it appears that the same was willful on her part.</p> <p>Evidence of age and experience of the infant may be considered by the jury on the question of willful disregard of the implied stipulation for ordinary care.</p>

<p>The defendant took into his possession some horses, etc., which were claimed by the plaintiff (the wife of the bankrupt) to be her own property, she having acquired them previous to the year 1888.</p> <p>Held, that the property was her husband’s, and was part of the assets of the bankrupt estate.</p>

<p>If a question to a witness is objected to as leading, it should be reported in the exceptions exactly in the form in which it was proposed to the witness.</p> <p>When an error in admitting or refusing testimony is alleged to have been made, judgment will not be reversed if the error could not affect the result. ^</p>

<p>Appeal from Dole, J.</p>

<p>The Justice below declined, “for the present,” to discharge the bankrupt.</p> <p>Held, that as this decision was not final, the appeal therefrom must be dismissed.</p>

<p>Upon a motion for a new trial, after verdict rendered in damages, the defendants’ bond to plaintiff not to remove or dispose of, to his detriment, any property they may have liable to execution on judgment, (Civil Code, Sec. 1156) must be in a sum not less than the amount of the verdict.</p>

<p>Exceptions prom Fourth Circuit Court.</p>

<p>The judicial oath in use in our courts is a legal oath.</p> <p>It is sufficient in an indictment for perjury to allege that the defendant was “duly sworn,” without setting forth the form in which the oath was administered.</p> <p>In an indictment for perjury, if the sworn statement alleged to be false is so related to the issue or the “material fact to be proved” as to tend circumstantially to its proof, it is sufficient.</p>

<p>Exceptions to Order oe McCully, J.</p>

<p>The petitioner not showing a right of way by prescription, a right of way by necessity awarded him.</p>

<p>Exceptions from Fourth Circuit Court.</p>

<p>(1) A motion for a new trial, on the ground that defendant has discovered new and material evidence, overruled, it appearing that though aware of the plaintiff’s-claim before the trial, defendant used no diligence to procure evidence to rebut the same.</p> <p>(2) An examination of the evidence shows that the verdict is sustained by-considerable and definite testimony.</p>

<p>The defendant pleaded guilty, in the Police Court of Honolulu, to charge of larceny in the third degree, and was sentenced; he appealed to the Supreme Court and moved that he be allowed to withdraw his plea of guilty and plead not guilty. The Presiding Justice denied the motion, and defendant excepted. Held, no error.</p>

<p>The Court ordered an amendment t<5 be made to an indictment, it having been found to be insufficient.</p> <p>Held, that the Court, under Section 33 of the Act to regulate the practice and procedure in criminal cases, has authority to order the amendment, and is not limited by the statute as to the character of the amendment.</p>

<p>Before Full Court, by Agreement.</p>

<p>On appeal to a jury from a conviction of horse stealing, and no specific charge asked for, the presumption is that the charge was the same as in the lower court.</p> <p>Irregularities and harmless errors, where defendant’s rights are not prejudiced, are not grounds for a new trial.</p>

<p>The Supreme Court has concurrent jurisdiction with the Police and District Courts over an assault with a weapon, obviously and imminently dangerous to life; and when an indictment charging such an offense is presented, it need not be averred that the accused has been committed for trial, for the reason that the committing magistrate was of opinion that the penalty which he was authorized to impose was inadequate. The fact of such commitment affords the conclusive presumption of law that such was his opinion.</p>

<p>Appeal prom Judd, C.J.</p>

<p>(1) The Court will not consider the constitutionality oí a law unless its repugnancy to the Constitution is pointed out by counsel.</p> <p>(2) Where the defendants are charged, under Chapter 40 of the Laws of 1886, with being by night without lawful excuse in an enclosed premises, it is not necessary for the prosecution to show that they are vagrants and have no visible means of subsistence.</p> <p>(3) The evidence sustains the charge.</p>

Agreed Submission. Statement of Facts. W. H. Daniels, of Wailuku, on the 1st day of May, 1889, then commencing business as a retail trader, made a mortgage to said M. Phillips & Co., a copy of which is hereto annexed and made a part hereof, which was duly placed on record. Said mortgage was given to secure the account of said M. Phillips & Co. for goods sold and goods agreed to be sold to said Daniels.

<p>The taxation of a contract to cultivate sugar cane on the one part, and to manufacture it on the other part, is illegal, for the value of the property affected by the contract has been enhanced by whatever value there is in the contract, and being assessed therefor, any assessment of the contract would be an additional assessment of a value already assessed, which would involve double taxation.</p> <p>Labor contracts are not taxable, not being assignable, and having no assessable value in themselves.</p>

<p>The respondent had been convicted of the offense of adultery and had appealed therefrom; a decree of divorce had been entered against him on the ground of adultery; he lived outside of the district wherein his court was situated, and he had failed to make returns of fines and costs for a period of four months : Held, that good cause had been shown for his dismissal from office.</p>

<p>Certain misconduct of a District Justice reviewed, and held to be sufficient ground for his removal.</p>

<p>Instructions to Assignee.</p>

<p>Appeal prom Police Justice op Honolulu.</p>

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

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

<p>Money of a principal in a bank was drawn by an agent without authority, and misapplied to the payment of a debt of the agent. Held, that although by a suit at law the principal might recover it of the payee, it solvent, equity has jurisdiction in order to declare the payee trustee of the said principal, in respect to the money, and of the mortgage given by the agent. The principal would be entitled to security upon the property purchased with his money.</p>

<p>The exercise of a discretionary power by an officer will not be interfered with under an application for a writ of mandamus.</p> <p>Official duties, arising from contract relations solely, will not be enforced by mandamus.</p>

<p>1. Proper practice indicated in regard to transcripts of notes of evidence by the sbort-band reporter.</p> <p>2. A deed conveying “ two enclosed lots ” (elna pa) “ at Kaakopua,” held, not to be a patent ambiguity, it not appearing on the face of - the deed that the grantor had other lots in Kaakopua.</p> <p>3. Parol testimony admissible to identify and locate the lots.</p> <p>A R. Keelikolani made a deed of gift of two lots at Kaakopua to Kalaikuewa in 1871, which deed was recorded. R. Keelikolani made a deed of the same land to Keaweamahi in 1878. Held, the silence of Kalaikuewa. who was present when the deed was made, did not estop her or her privies from asserting a claim against it; first, because, under peculiar circumstances in the opinion set forth, she might not be aware of the state of her own title; and, secondly, because the record of the deed was sufficient to put Keaweamahi on his inquiry as to the true state of the title.</p> <p>5. At the same time of the deed of R. K. to Kalaikuewa, her kahu, she, R. Keelikolani, gave to W. P. L. Kalahoolewa, her adopted son, a deed of all the Ili of Kaakopua, which was recorded before that of Kalaikuewa. Held, that the two deeds were parts of the same transaction, and the deed of the Ili of land is subject to that of a portion of the Ili-</p> <p>fi. The deed from R. K. to Kalaikuewa contained a covenant of warranty. Held, that a deed from the successors to the title of R. K. through Kalahoolewa to the defendant is inadmissible as against the privies of Kalaikuewa, for it (the covenant of warranty) should enure to her and their benefit.</p> <p>7. Tenants in common may join in action of ejectment and recover mesne profits.</p>

<p>A deed of gift to a woman, who afterwards married the grantor, was signed by the grantor and kept by him until his death, without mentioning it to the grantee. Some time after his death it was passed, with other papers, to the attorney of the grantee by D. M., the husband of one of grantor’s heirs, having been found presumably among grantor’s papers after his death;</p> <p>Held, there was no valid delivery of the deed, and it is inoperative.</p> <p>As the deed was inoperative, the Court dismissed a petition by the grantee to set aside a decree of partition of the estate, the petition being based upon the allegation that the decree was made in ignorance of the existence of the deed.</p>

<p>It is within the discretion of the trial court to re-open the case at the request of a party, for the purpose of allowing him to introduce additional evidence.</p> <p>Such discretion is not subject to review, except in cases of gross abuse.</p> <p>Interest may be allowed on a foreign judgment, by way of damages. The rate of such interest is not that of the country where the judgment was obtained, but that of the country where the judgment is sued upon.</p> <p>The plaintiff’s complaint asked for interest at six per cent, per annum, and will be limited to this rate, though the legal rate in this country is greater.</p>

<p>Exceptions prom Third Circuit Court.</p>

<p>A president oí a corporation is not authorized, virtute officii, to bring suits in the name of a corporation. He must have authority from the corporation to do so, in order to bind the corporation.</p> <p>A by-law of a corporation, that its president, “ subject to the advice and control of three-fourths of the shares represented at any meeting shall have general superintendance of the affairs of the company,” is not sufficient authorization to him to commence a suit at law, without the approval of the stockholders or proof of their acquiescence or ratification of his act.</p>

The defendant was arrested on the 15th July, 1891, on the written order of the plaintiff, and taken before the Police Justice of Honolulu to show cause why he should not be sentenced to be imprisoned at hard labor until he discharge the amount of his taxes.

<p>Appeal prom Judd, C. J.</p>

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

<p>The defendants were tried and acquitted, at the last July Term, upon an indictment charging them with the murder of one Lum Yun Kun, on the 15th day of May, 1891, at Kamoiliili, Honolulu, Oahu. The evidence for the prosecution was, that the death of Lum Yun Kun was caused by burns he received during the burning of his house.</p> <p>These defendants áre now charged with arson in the first degree, in that they did at Kamoiliili, Honolulu, Oahu, on the 15th day of May, 1891, in the night time of said day set fire to and bum the dwelling-house of one Lum Yun Kun there situate, the said Lum Yun Kun being then and there an occupant and inmate of said house. The defendants plead their former acquittal in bar of the second indictment. Plea held good, and prisoners discharged.</p>

<p>The defendant pleaded guilty in the Police Court of Honolulu, to a charge of assault with a weapon obviously and imminently dangerous to life, to wit, a pistol, on Julia Kauhane. He was sentenced to pay a fine of $200 and to imprisonment at hard labor for two years, and appealed to this Court.</p> <p>Held, that Chapter 7 of the Laws of 1870 conferred jurisdiction upon the Police Court of Honolulu to hear and determine the case.</p> <p>Held, affirming Regina vs. Young Quai, 8 Hawn., 282, that the statute gives the option to the Police Court, in cases of this character, to proceed to judgment or commit for trial.</p>

<p>Section 1449 oí the Civil Code (of the descent of property) being a particular enactment, will control where the facts are applicable, and is not repugnant, but is an exception to the general rule of descent, laid down in section 1448: So where J. M. died intestate leaving a widow M. and two daughters R. and K., and K. died under age and unmarried, the other daughter R. takes the share of K-., and not M., the widow.</p> <p>A deed of partition between M., R. and K. does not estop R. from claiming as heir of K. the estate which came from their father, set off to K. in the partition deed.</p>

<p>A man, claiming to be the father of a certain child, complained to the Marshal that a native man was going to take his child to Kauai. The Marshal directed a police officer to go to the wharf to prevent any disturbance, and, if the matter could not be settled there, to bring the parties up to the Station House to settle it, but did not order the arrest or detention of any one. The officer brought a woman, the child and others to the Station House, where they remained until the Marshal came in.</p> <p>The woman brought an action of trespass against the Marshal, and the jury rendered a verdict for the plaintiff.</p> <p>Held, that the Marshal was not liable, there being no sufficient evidence that he ordered the police officer to arrest the woman, or to detain her at the Station House.</p> <p>Held, that the Marshal is only liable for the acts of his deputies.</p>

<p>. A devisee to a daughter, E. Y. W. and her heirs, the same to be held in trust by Executors during her life, and upon her decease, in case she has not during her life disposed of the said estate by will or otherwise, to be distributed to the legal heirs of the devisee, held not to be within the Rule in Shelley’s Oase.</p>

<p>The testator devised land to his sons M. and J. for the term of their natural lives, to share and share alike, and after the decease of M. one half to his heirs, and after the decease of J. one half to his heirs.</p> <p>Held, M. and J. are tenants in common for life.</p> <p>By the Buie in Shelley's Case, M. and J. would have the whole estate absolutely. But the Rule in Shelley’s Case, by virtue of its being a part of the Common Law of England, is not in force in this kingdom, the Common Law as such not being in force here. Though free to adopt the rule, the Court declines to adopt it as the law of this kingdom.</p> <p>The intention of the testator should govern in the construction of wills. The intention of the testator was to give only a life estate to M. and J. This would be defeated by the operation of the Rule in Shelley’s Case.</p> <p>The “ heirs ” of J. are whoever are entitled to his property by the statute of descent, if he had died seized of this property and intestate. J. died leaving a widow but no issue nor father nor mother ;</p> <p>Held, that his “ heirs ” are his widow as to one half, and his brother and sisters as to the other half.</p> <p>A devise of real and personal property to executors in trust, “ the income from the same to be paid to J. N. R. for the term of his natural life, and after his death I give, devise and bequeath the said”one-eighth to his heirs,” creates a valid trust, and J. N. R. has the income for life and at his death the eighth goes to his statutory heirs, who in this case are his widow, as to one half, and his brother and sisters as to the other half.</p> <p>A widow is an “ heir ” by our statute of descent.</p>

Appeal prom Bickerton, J. This is a bill for separation brought by the wife against her husband. After several hearings, in which a great deal of testimony was taken, Mr. Justice Bickerton, who heard the case, filed his decision, dated 5th September last, in which he decreed a separation of the parties from bed and board forever, and awarded the custody of the minor children to the plaintiff, and alimony for her and their support of $30 a month, etc. The respondent apppealed.

<p>An employee is liable for the conduct of his servant, whether it is lawful or not, if it is within the scope of the authority conferred upon him, either expressly or by fair implication.</p> <p>The defendant company, not having participated in the act complained of by plaintiff, is liable to him only for the actual damages attending the act of the master, if that act was unlawful, and no exemplary or punitive damages can be allowed against defendant.</p>

<p>Appeal from Dole, J.</p>

Mandamus. The petitioner prays for a writ of mandamus, to be addressed to Henry Smith, Samuel E. Graham and George N. Shaw, Inspectors of Elections of the 2d… Held: in Kekaula’s Case, that as a conviction in 1882 for felonious cattle branding did not, under the laws then in force, disqualify one from voting, the disqualification imposed by Article 73 of the Constitution of 1887, of one “who shall have been convicted of felonious cattle branding,” did not disqualify Kekaula.

<p>In order to the binding effect of conditions and restrictions to be imposed upon immigrants (from countries with which we have no treaty to the contrary), upon which they may be allowed to enter this Kingdom, the immigrants must have knowledge of them before they come to this Kingdom. Subdivision 4 of Section 1 of Chapter 67 of the Laws of 1890, held to be unconstitutional.</p>

<p>An objection to the competency of a juror, when overruled, must be excepted to in order to be of avail to the defendant.</p> <p>A Representative was summoned as a talesman in a criminal case: Article 20 of the Constitution forbids the appointment of a member of the Legislature, during the time for which he is elected, to any civil office under the Government:</p> <p>Held, the summoning of a person to serve as a juror is not his appointment to a civil office under the Government.</p>

<p>Writ of Error.</p>

<p>All the partnership property being sold to a third party by the two partners, the purchaser assuming all the firm debts ;</p> <p>Held, that it operated as a dissolution of the partnership.</p> <p>It was ascertained, at the time of the sale, that defendant was indebted to plaintiff. Six years having elapsed since the date of the sale of the partnership property, and no new transactions having taken place between the partners within six years ;</p> <p>Held, -that the statute of limitations has run against the plaintiff.</p>

<p>To sustain an action on a debt discharged .by defendant’s bankruptcy, the promise to pay it must be express. There being evidence of such promises, the Court declined to set aside the verdict.</p>

<p>The action was for breach of a covenant by an adopting parent that he would properly clothe, feed, educate and care for the minor son of the plaintiff as a good, faithful and prudent father should. The part of the charge of the Court, i.e., “ that if, in his opinion, the King thought it was proper for the boy to live with his mother, he had a right to allow him to do so. * * * It was a matter for the King alone to judge of, whether to send the boy to live with his mother or notheld erroneous, as taking away from the jury the right to pass upon the question whether the act was that of a “ good, faithful and prudent father.”</p> <p>But as the whole case shows no damages proven, the Court allows a new trial only to ascertain if there had been a breach of the covenant, and if so found, the damages to be nominal with costs.</p> <p>An instruction to the jury that “ defendant was not liable for the willful acts of the minor in not going to school,” meaning that the defendant was not liable for such acts done without the knowledge or consent of the adopter, held not erroneous.</p>

<p>Water for irrigation purposes was diverted by the lessee of certain kuleanas from the kuleanas to Ms other land during the continuance of the lease.</p> <p>Held, this user of water was not adverse to the owner of the kuleanas, and therefore a claim of title to the water by prescription fails.</p>

J. Opinion op the Full Court. Having well considered this case and the arguments of counsel, we hold that a Justice of the Supreme Court has jurisdiction in Equity, at Chambers, to entertain a bill for partition of real estate, for we consider that the power granted in the 852d Section of the Civil Code, to partition real estate, is in harmony with the 1228th Section, providing for the bringing of proceedings in Equity to partition real estate by sworn petition, and is…

<p>Evidence, upon -which the boundary between the Crown Land of lumuula and the Government land of Kaohe was settled by the Commissioner of Boundaries for the Island of Hawaii, discussed.</p> <p>Where the oral testimony as to a boundary is conflicting, resort may be' had to intrinsic evidence. Where a gulch is conceded to be a boundary for a portion of the line between two lands, it is a natural inference that the main branch of the gulch continues to be the boundary as far as it goes.</p> <p>Where a voluntary relinquishment of a portion of a land is made by an owner, and it is not included in the Boyal Patent for the land, the portion belongs to the Government.</p>

<p>In an invoice of Chinese goods there was found a case of pills containing opium. Held, that the said case, together with all the merchandise named in the same invoice, was forfeited and confiscated to the use of the Hawaiian Government.</p>

<p>Exceptions prom Fourth Circuit Court.</p>

<p>Appeal from Police Justice op Honolulu.</p>

<p>Appeal from Judd, C.J.</p>

<p>The Election Law of 1890 does not prescribe in what language, Hawaiian or English, the ballots shall be printed.</p> <p>Held, the printing of the ballots in English was a compliance with the law, as would also be the printing of them in Hawaiian, or in both said languages.</p>

<p>Appeal prom Dole, J.</p>

<p>The first Section oí Chapter LVC. of the Penal Code authorizes a warrant to be issued on the complaint of the wife against her husband who deserts her and neglects to maintain, provide for and support her, “ as provided in Section 1286, Civil Code.”</p> <p>The re-enactment of the same provisions making the support, etc., of the wife obligatory on the husband by the Act of 1888 (Chapter 11 Section 7) keeps the penal law (Chapter 56 Penal Code) alive, although Section 1286 is nominally repealed.</p> <p>Cases under Chapter 56 of the Penal Code are civil cases, and the plaintiff has the right of appeal.</p>

<p>Evidence of an ancient flow of water from kalo land to lower land, and use of the same for cultivating the lower land, tends to prove an easement oí the lower land in such flow.</p>

<p>Appeal From Dole, J.</p>

<p>Exceptions from Fourth Circuit Court.</p>

<p>A tenant, under a lease for fifteen years, who planted algaroba trees on the demised premises, has the right to cut and sell the same, such trees not being “timber” trees.</p>

Mandamus. Writ. Whereas a petition for a writ of mandamus has been filed by Fong Kee in our Supreme Court, alleging : 1. That a Chinese person by the name of Lau Cheu (Low Choiv), a resident of Honolulu and doing business as a shoemaker, is indebted to said petitioner upon a certain promissory note for eighty-five dollars, made by said Lau Cheu at Honolulu upon the first day of January, 1892; 2.

<p>An attorney of the Lower Courts suspended from -practice for two years for not making inquiries, the circumstances being suspicions, which would have led him to ascertain that a deed, whose execution he procured to be proven, was a forgery. The Court will hesitate to disbar an attorney on the evidence of participes criminis.</p>

<p>An Indictment was signed “ H. A. W., Attorney-General ad interim, by his Deputy, O. 0.”</p> <p>Held, that since under the Constitution of 1887 the tenure of a Cabinet officer is not at the pleasure of the Sovereign, but it is terminable only on the passage of a vote of Want of Confidence by the Legislature, and since the laws requiring Cabinet majorities for certain legal acts would be subverted by an ad interim appointment, the Indictment is bad, on a motion to quash.</p> <p>Rex vs. Kanaau, 3 Hawn., 669, and</p> <p>Rex vs. Ah Lin, 5 Hawn., 59, distinguished.</p>

<p>A written contract will be read by the Court, and the parties will be bound by its legal effect. The construction oí the Bill of Lading should not have been left to the Jury.</p>

<p>A writ of mandamus was issued commanding the Collector-General o Customs to show cause why he should not deliver to petitioners a cask of gin owned by them, on them paying the duties.</p> <p>Writ discharged, as it appears that there are other legal remedies open to petitioners.</p>

<p>The act oí managing or conducting or assisting in the managing or conducting oí a lottery are both punishable offenses under Section 3, Act of 1886; the proof of either managing or assisting in the management would be sufficient, and as in this casé the charge was in the alternative, the proof of either of them is sufficient. Here there was abundant proof of assisting, and the appeal was dismissed.</p>

<p>Exceptions prom Second Circuit Court.</p>

<p>A Commissioner of Water Eights being disqualified from interest in a given ease, a Special Commissioner was appointed in pursuance of the statute. The acceptance of the appointment by the Special Commissioner gave him complete jurisdiction over the case, and the regular Commissioner could not resume jurisdiction of the case on the removal of his disqualification.</p> <p>The Special Commissioner entertained and granted a motion for a continuance, while outside of the District for which the controversy arose. Neither party appearing before him on the day to which the hearing was continued, it is not necessary to pass upon the validity of his act.</p> <p>An agreement between counsel alone to try a case on a stated day does not necessarily bind the Court to hear it on that day.</p>

<p>Tlie Writ of Quo Warranto as defined and regulated by the Act of 1876 is confined to officers in corporations and is not applicable to officers of the Government.</p>

<p>A request was made by defendant to be released from his engagement to ' marry, and to have Ms engagement ring returned to him ; the reply by the mother of the plaintiff was that the ring should thereafter be returned, but the ring was not returned, and the plaintiff declined to release defendant from Ms engagement.</p> <p>Held, these facts do not establish a release.</p>

<p>Actions for tort may be brought against the Hawaiian Government under the provisions of Chapter 51, Laws of 1888.</p> <p>The Boad Supervisor for the District of Honolulu, under Chapter 9 of the Laws of 1887, was an officer and agent of the Government, which was liable for the acts of such officer done in the scope of his authority.</p> <p>The Government, by its agents, turned storm water, which had collected on a street, into private property, by cutting trenches through the sidewalk, and then shut off the egress of such water from the private property by filling in the channel by which such water might escape :</p> <p>Held, that the Government was liable for the damages that resulted to the proprietor.</p>

<p>Question Reserved.</p>

<p>Where, in an action of trespass, the issue is the title to the property alleged to be trespassed upon, the burden is upon the plaintiff to prove his title, and he, having put on such evidence in chief, may not in rebuttal introduce evidence of the same character after the defendant has closed his case.</p>

<p>Notaries Public and similar officers are officers within the prohibition of Article 20 of the Constitution, and are not eligible to election to the Legislature.</p>

<p>Section 24, subdivision first, of the Election Law of 1888, requires that an Elector for Nobles shall have resided in the district in which he offers to vote for not less than three months before the election. The district here meant is the island (or group of islands) to which the Nobles to be voted for are apportioned, and not the districts mentioned in Section 13 of the Act.</p> <p>Subdivision second of said Section 24 requires that the Elector for Nobles shall have actually received an income of not less than six hundred dollars during the year next preceding his registration for such election. The market value of the board and lodging of such elect o when given him by his employer in addition to his wages, is not to be reckoned to make up the prescribed income.</p>

<p>Whenever by the Constitution and laws the Sovereign is required to act upon the advice of the Cabinet, the advice of the majority of the Cabinet must be taken.</p>

<p>The advice of a majority of the Cabinet must be followed by the Sovereign, though the Attorney-General be of opinion that the action so advised is unlawful. The Supreme Court having interpreted the Constitution and the laws (in the Opinion of April 10, 1890) to mean that advice of a majority of the Cabinet must be followed by the Sovereign, it is the duty of the Attorney-General to advise in accordance with such opinion.</p>

<p>Restrictions limiting proposing immigrants to this country as to length of residence, character of employment, etc., can be imposed by statute law upon citizens of countries with which this Kingdom has no treaties to the contrary, as a condition of their being allowed to enter this Kingdom. ,</p>

<p>If the Cabinet of His late Majesty Kalakaua, holding oyer under his successor, Queen Liliuokalani, were, according to the true intent and meaning of the Constitution, the Cabinet of Her Majesty, they could not be removed except under the circumstances set forth in Article 41 of the Constitution.</p>

<p>The Constitution is silent as to the status of the Cabinet on the death of the Sovereign who appointed them.</p> <p>Held, that the successor to the throne has the power to call for their resignations.</p>

<p>When, the appointment of an officer is by law to be made, or the act is to be done, by the King in Privy Council, the law is rendered inoperative by the Constitution thereafter promulgated, which deprived the Privy Council of this function.</p>

<p>The offense of felonious branding of cattle was committed by J. K. previous to the promulgation of the Constitution of 1887. This offense is enumerated in the 73d Article of the Constitution of 1887 as one that disqualifies the offender from voting, and renders him ineligible to holding office under the Government.</p> <p>Held: That this Article of the Constitution does not apply to instances of this offense, committed previous to the date of this Constitution; this offense not being mentioned as operating to disqualify J. K. under the Constitution of 1864, which was in force at the time his offense was committed.</p> <p>Held: That the term “other high crimes and misdemeanors,” which work disqualification of voters and office holders under the 73d Article of the Constitution of 1864, does not include “ felonious branding of cattle,” it not being a felony.</p>

<p>Section 44 of the Election Law of 1890 Requires that the person wishing to register as a voter must appear in person before the inspectors.</p> <p>Sections 55 and 56 of the said law permit the Minister of the Interior, in having the ballots printed, to insert after the foreign name of candidates the Hawaiian version of such name.</p> <p>Sections 63 and 72 of said law do not permit the Inspectors of Election to assist a voter, who can neither read nor write, in marking his ballot.</p>

<p>1. No one can vote for Representative whose name does not appear on the corrected list of Electors for Representatives.</p> <p>2. A person whose name appears on the list of Voters for Nobles must apply in person to the Inspectors to have his name put on the list for Electors of Representatives.</p> <p>3. When a Special Election is to be held at the same time as the General Election, it is in the discretion of the Executive to provide either a separate or a joint ballot.</p>

<p>A vote of want of confidence in a Cabinet is required by the 41st Article of tbe Constitution to be “ passed by a majority of all the Elective members of tbe Legislature.”</p> <p>Held : That this means a majority of tbe full quota of tbe Elective members required by tbe Constitution, not diminishing tbe number by vacancies in tbe seats.</p> <p>In tbe Legislature of 48 Elective members, 25 is a majority.</p>

<p>The law required that persons must have paid their taxes as a qualification to vote for Nobles. The collection of the property tax could not be enforced as delinquent until after December 15. The election was ordered for October 4 Held, the payment of this tax was not a requisite to the privilege of voting.</p>

<p>Personal taxes are due July 1st. At an election to be held October 1th, the voter must have paid this tax to entitle Mm to vote.</p>

<p>In computing time under a law which required that a request be filed not less than fourteen days before the day of election, the day on which the request was filed is to be counted as the first of the fourteen days.</p> <p>A person ineligible for election as Representative, by reason of holding office under Government, may remove the disqualification by resigning said office before election.</p>

<p>Article 82 of the Constitution does not require the signature of the Sovereign to an amendment of the Constitution that has passed the Legislature at two consecutive sessions.</p>

<p>Exceptions to Police Court op Honolulu.</p>

<p>The statute of descent of property provides for the ascent of property no further than the parents and the brothers and sisters of such parents of a deceased intestate.</p> <p>A cousin of the father of an intestate (deceased) is of the fifth degree of kindred and cannot inherit.</p>

<p>A deed absolute on its face, the Grantee giving an agreement to Grantor to reconvey the property to him on payment of the debt within a time stated, which was the consideration of the deed, held to be a mortgage. Notes given to cover accumulated compound interest held to be not void.</p>

<p>Appeal from McCully, J.</p>

<p>Appeal prom McCully, J.</p>

Appeal prom Harris, C.J. Decision of Harris, C.J., Appealed from.

<p>Instructions to Executors.</p>

<p>The testator by will, after certain life estates were disposed of, devised all Ms estate to trustees, directmg them to sell and invest the proceeds until the aggregate sum should amount to $25,000, and then to expend tMs sum in the erection of a budding for certain charitable purposes. The estate realized much more than tMs sum.</p> <p>Held, that the alleged heirs of testator had no claim on the residue after the charity was established.</p>

Equity Appeals. Decision of Judd, J., Appealed from. These are bills in Equity by the Assignees in bankruptcy of Thomas Spencer, praying among other things that an infant, Thomas Spencer, Jr., may be declared to hold as Trustee for Thomas Spencer certain lands situate on the Island of Hawaii, alleging that the lands are in fact the property of Thomas Spencer, and that the title was put in the name of Thomas Spencer, Jr., for the purpose of defrauding his creditors.

<p>The Plaintiff prayed for specific performance of a writing which was as follows : “ I have received the sum of $100 from M. Opunui, being the money for one-half of the real estate of Kaaikaula (w), deceased. G. Kauhi.” The land was the separate estate of Kaua, the wife of the said G. Kauhi.</p> <p>Held, the contract was void and could not be enforced against either the wife or her husband.</p>

<p>Interest on damages is not recoverable as interest in an action of tort, unless specifically authorized by statute.</p> <p>The action was trespass vi et armis, and the plaintiffs claimed §35,150.39 with interest, for damages resulting to them for injury done to their property by the defendant, etc. The only property of the plaintiffs in this’case was the steamship “Madras,” and there was no evidence of injury done by the defendant to her.</p> <p>New trial ordered, as the verdict for plaintiffs was contrary to law.</p>

<p>An easement appurtenant to land will pass by a grant of the land, without mention being made of the easement.</p> <p>A riparian proprietor has a right, as an incident to his estate, to use the water for irrigation and domestic purposes, provided he does not materially diminish the supply of water or render useless its application by others; but his riparian rights are subject to the prescriptive rights of others.</p> <p>The owner of an Ahupuaa may apply the water belonging to it to what land he pleases, but upon his conveyance of portions of the Ahupuaa to several persons, each grantee, in the absence of an additional grant of water rights to any of them, will hold the right to all the water which the portion of land purchased by him had enjoyed from time immemorial; the grantee of the larger portion of the Ahupuaa has no superior rights as lord paramount.</p> <p>A party who has acquired a prescriptive right to use a certain quantity of water in a certain ditch for certain purposes on a certain piece of land, may alter the course of the ditch and use the water for other purposes on another piece of land, provided the changes do not affect injuriously the rights of others.</p> <p>No prescriptive right can be acquired to the overflow of water from adjacent lands, however long continued, where the overflow is merely by way of drainage and not in a regular water course or under a claim of right.</p>

<p>The Court, in the exercise of its discretion, declines to allow a trustee to sell a portion of the trust property, the only party interested in the trust objecting to such sale.</p> <p>Where husband and wife conveyed property to a trustee in trust for the sole benefit of the wife and upon the death of either husband or wife to convey the same free of the trust as the wife might direct or by will appoint; Query, whether a divorce between the husband and wife terminates the trust.</p>

<p>Appeal from Police Court op Honolulu.</p>

<p>Contested Election.</p>

<p>Sec. 6 of Chap. 28 of the Laws of 1887 requires the Minister of Foreign Affairs to issue a permit to land to a Chinese person coming within the descriptions in that section, although a permit might have been procured from a Hawaiian Consul at the port of embarkation.</p> <p>This duty of the Minister being ministerial, the performance of it may be enforced by writ of mandamus.</p>

<p>If an alteration be made in a conveyance, even after its execution and delivery, and for the benefit of the grantee, if made with the knowledge and consent of the grantor, it will be valid.</p> <p>If upon the production of an instrument it appears to have been altered, it is incumbent on the party offering it in evidence to explain the appearance or alteration.</p>

<p>Under a Statute providing for the payment by the Hawaiian Government of such mortgages upon the Crown Lands as should remain unsatisfied after the exhaustion of the private estate of the late King (K. IV.) and that such lands should thereafter be inalienable, the Minister of Finance paid a mortgage on certain private land of the King, under the mistaken idea that it was Crown Land and that the private estate of the King had already been exhausted.</p> <p>Held, that the Hawaiian Government had a lien on the private land to the extent of its value at the time the mortgage was released.</p>

<p>The right, to impound animals for trespass is altogether a statutory right.</p> <p>There is no statutory authority for impounding animals trespassing upon the public roads.</p>

<p>A copyright is not infringed where the extracts are trifling, or where the resemblance does not amount to substantial identity.</p>

<p>Appeal from Police Court of Honolulu.</p>

<p>A stockholder may be given leave to defend, in his own name and at his own costs, a suit brought against the corporation, where the corporation does not answer and cannot be made by the stockholders to take any corporate action, owing to the shares being held in such proportions that no majority vote can be obtained.</p> <p>A stockholder who cannot procure corporate action to defend the suit should come in with his answer and ask leave to file it, rather than ask such leave by independent petition.</p> <p>A stockholder in a defendant corporation should not be allowed to defend the suit in his own name, where he controls the plaintiff corporation..</p>

<p>An insurance policy contained a stipulation that it should be void if the assured should have any other insurance on the insured property without the consent of the company, written on the policy. There was such other insurance (taken out by the assured’s agent) and no such consent. But the applicant, in answer to a question as to prior insurance, had referred the company to his agpnt, he himself not knowing what insurance might have been taken out by his agent.</p> <p>Held, that the company had notice that there might be other insurance, and, if it issued the policy without making inquiry of the agent, it is estopped to set up the stipulation as a defense.</p> <p>The word “void” is to be construed as if it read “voidable” in stipulations avoiding insurance policies.</p>

<p>In an indictment for perjury, the statement upon which the perjury is assigned must be averred to be material to the issue in which it was given, or it must be clear to the court that it was material from the nature of its information.</p>

<p>Sec. 14. Oh. 35, Laws of 1884, which provides that the bankrupt shall be divested of all of his property “except the necessary clothing of himself and family and such other necessaries, not to exceed the value of Three Hundred Dollars, as the Justice may designate,” means that the clothing and such other necessaries together shall not exceed the value of Three Hundred Dollars, and that it may be as much less as the Justice may order, he being guided by the circumstances of the case.</p> <p>A Justice sitting in bankruptcy has no jurisdiction to hear a claim of the bankrupt’s wife to property held by the assignee, and alleged to be the wife’s separate property.</p>

<p>Mandamus lies to compel Inspectors of Election to count ballots erroneously rejected, and to reject ballots erroneously counted, and then to deliver a certificate of election to the successful candidate.</p> <p>A ballot should be rejected if the cross mark upon it is enclosed in a parenthesis.</p> <p>Whore inspectors of election had withdrawn a ballot because the number of ballots exceeded by one the number of names checked off on the list of voters, they should, upon discovering that they had by an oversight omitted to check off the name of one person who had voted, recount the ballots, including the one they had withdrawn.</p>

<p>A ballot should be rejected if the cross mark upon it is on the left hand side of the name of the candidate.</p> <p>Persons registered at a meeting of the inspectors, held less than five days prior to the election, cannot lawfully vote.</p> <p>The Minister of the Interior cannot, under Sec. 108, Subdiv. 9, of the Election Law of 1890, authorize inspectors to hold a meeting for registering voters less than five days prior to the election.</p> <p>Under Sec. 87 of the Election Law, the court may annul elections for other causes than those mentioned in Sec. 84, for which the Legislature may declare a seat vacant.</p> <p>An election, at which certain persons illegally registered voted, should be annulled if the result might have been different had such persons not voted; the court cannot, under the statute, require proof as to how these persons voted.</p>

<p>Receiver’s Petition.</p>

<p>Compound interest cannot lawfully be demanded upon a contract for such interest to accrue; but, after simple interest has become due, interest upon it may be contracted for and collected upon a special agreement. The acceptance, without protest-, by the payor, of periodic accounts furnished by the payee, transferring accrued interest to the principal, is sufficient evidence of new promises to pay interest upon such accrued Interest, changed to principal.</p> <p>A new promise to pay interest upon interest accrued need not be in writing, even though secured by mortgage upon real estate.</p>

<p>A foreign firm, whose agent had not taken out a license, as required by Oh. 55, Laws of 1888, cannot recover the value of goods sold and delivered by such agent in this country.</p>