Volume 9 — Hawaii Reports

<p>An executor of a deceased wife’s estate filed a petition to revoke an order admitting to probate the will of K., who it was claimed was the uncle of petitioner’s testatrix, and a plea in bar thereto was sustained. {8 Haw. 93.) The same person filed another petition with the same object, claiming to be a purchaser of the rights of another person alleged to he a niece and heir of the testator, K. A party in interest pleads the former proceedings in bar. The plea is overruled.</p> <p>A demurrer was also filed on several grounds, and also overruled.</p> <p>Respondent claimed that" petitioner’s deed only amounts to an assignment of a chose in action, which cannot he assigned. Held, that under the deed in question, the petitioner had a right of action. This deed was on the same footing with many deeds under which claimants came into shares of the Charles KaDaina estate.</p>

<p>A agreed in writing with B to sell and deliver (at a future time) certain paddy to he grown. The agreement contains certain conditions as to quality, time of delivery, quantity and price precedent to the delivery and acceptance of the paddy. Held, that it was only an executory agreement and did not effect an absolute and complete sale, or pass the title to plaintiff; and that replevin could not he maintained under it.</p>

<p>A landlord cannot lawfully break open an outer door of- a building to levy a distress for rent.</p> <p>Trover lies for the value of goods wrongfully distrained.</p> <p>The measure of damages is the value of the goods at the time of conversion, with interest to the time of trial, without deducting the amount of rent due.</p>

<p>The declaration was for Trespass in Case, by a tenant against a landlord, for gratuitous repairs of a tenement unskillfully and negligently done. The proofs and findings of fact supported an action, upon a covenant that the building was fit and suitable for the intended use of it by the plaintiffs. Held, there was a variance between the declaration and proofs and the judgment is reversed.</p>

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

<p>A new trial will not be granted (1) on the ground that the verdict is against the weight of evidence, when it does not appear that there is a manifest preponderance of evidence against the verdict; or (2) on the ground of surprise as to the defence of title by adverse possession set up under an answer of general denial, when it does not apirear that the plaintiff had sufficient reason for believing that such defense would not be set up; or (3) on the ground of newly discovered evidence, when the evidence might have been discovered before the trial by the exercise of reasonable diligence, or when the evidence is merely cumulative, or when it is not of such a nature as to make it probable that a new trial would result in a different verdict.</p> <p>Surprise is not a favored ground for granting a new trial.</p> <p>In case of surprise the better practice is for the party alleging surprise to move for a continuance of the trial or for a non-suit.</p> <p>A sheriff’s deed of land sold in pursuance of an execution issued upon a judgment of a District Court, a transcript of which judgment has not been docketed in the Supreme Court, does not pass a legal title to the land.</p> <p>A sheriff’s deed of land upon an execution sale conveys only the interest which the judgment debtor has in the land at the time of the sale.</p> <p>A title afterwards acquired by the judgment debtor does not inure to the benefit of the purchaser at the execution sale.</p>

<p>Por a Writ of Habeas Corpus.</p> <p>Appeal from Circuit Judge Erear.</p>

<p>There being sufficient evidence to sustain the decision of a Justice of the Supreme Court in Chambers, sitting in Intermediary Court, an appeal from such decision on the ground that it is contrary to the law and the evidence is dismissed.</p>

<p>The appellants from a decree settling an account, not showing that the decree is wrong, and the evidence appearing to support the decree, it is affirmed.</p>

<p>An appeal bond which does not designate the decision appealed from, nor the cause or Court in which it was rendered, is insufficient.</p>

<p>Where a former judgment is claimed as an estoppel, the record must show that the issue was the same in both cases, and that the party . claimed to be estopped is either the same or is in privity with the party in the former adjudication.</p> <p>The principle of Keáhi vs. Bishop, 3 Haw., 546, does not apply to the present case.</p>

<p>Ejectment. Exceptions.</p>

<p>In an action against a common carrier for non-delivery of goods destroyed by fire, the carrier being by special contract exempted from liability for losses by fire not due to its negligence, evidence of changes in the general conduct of its business made by the carrier after the fire, is inadmissible to show negligence at the time of the fire.</p> <p>The acceptance without objection of a bill of lading prepared by a shipper and accepted by him at the time the goods are delivered to the carrier, is, in the absence of fraud, imposition or mistake, evidence of the shipper’s assent to a provision contained in the body of the bill exempting the carrier from liability for losses by fire not due to its negligence.</p> <p>A consignor “ prima facie ” has authority to bind the consignee by special contract exempting the carrier from liability for losses by fire not due to its negligence.</p>

<p>A receipt was given by the defendant steamship company for goods forwarded by its steamer to be delivered at Paia, an inland place on Maui, the exemptions in the receipt being “dangers of fire and navigation, or any other accident or danger of the seas, rivers or steam navigation, of whatsoever kind and nature.” The goods were landed and destroyed by fire in the warehouse before they were forwarded to Paia. Held, that the exemption from liability for loss by fire, is limited to loss by fire occurring at sea, and does not attach to the land route.</p>

<p>Question Reserved.</p>

<p>Question Reserved.</p>

<p>A verdict finding the defendant guilty of embezzlement of the money of others, is not contrary to the law and the evidence on the ground that the defendant was interested in the money as a partner with the others, there being evidence to sustain a finding that the defendant was only an agent of the others, and the jury being instructed that if they so find, they must also find that the money belonged to the others and not to the defendant, and there being evidence to .show that the defendant was merely to receive and had already received a 5 per cent, commission on the money collected by him.</p>

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

<p>Petitioner was convicted in a District Court of a misdemeanor and fined. He paid the costs, and his attorney stated in Court, “ We will appeal,” and paid $1.10, the cost of the certificate of appeal. No Court was stated to which petitioner wished to appeal. By statute appeals must he perfected in ten days after judgment. After the lapse of twelve days the attorney went to the Magistrate to have his appeal completed. The Magistrate declined to grant the certificate, and the attorney received back the $1.10, costs of certificate. Held, on this showing, that this Court is not authorized to order the Magistrate to allow the appeal.</p> <p>Rights lost by negligence of an attorney cannot be restored by the Court.</p> <p>The remedy is by action against the attorney.</p>

<p>A devise and bequest of all the téstatelas property to “my daughter and her heirs, the same to be held in trust, however, by my executors during the natural life of my said daughter, and the same is to be managed and controlled by them for her use and benefit, they accounting for and paying over to her the income from the same upon her reasonable request, and upon her decease, in case she has . not during her lifetime disposed of the said estate by will or otherwise, it is my will that my executors shall distribute the said estate and any increase thereof among' the legal heirs of my said daughter,” gives to the daughter the fee in the testator’s real estate and absolute ownership of his personal estate.</p>

<p>It is not error to order stricken from the record a paper purporting to be defendants’ answer, which does not conform to the statute — ■ Section 1106 of Compiled Laws. This paper having been stricken off it was proper to declare the defendants in default, upon the Clerk’s certificate that the summons had been duly served,"and that no answer complying with the statute had been filed within the time prescribed by law.</p> <p>The record of the Court cannot be impugned by the Clerk’s minutes. Where two acts done appear to be dated the same day, the presumption is that they were done in their proper logical order.</p>

<p>The defendant had been convicted in July last of a violation of Chapter 41 of the laws of 1886 relating to gaming, and appealed. In the Circuit Court, First Circuit, to which the appeal went for trial, he moved to dismiss the charge on the ground that the Act of 1886 had heen repealed by the Lottery Bill of January 13th last and specifically by Act 21 of the Legislature of the Provisional Government on March 7th last. Section 12 of Act 21 prescribes that pending prosecutions under the repealed law shall not be affected by the repealing Act, and Section 23 of the Civil Code is in general terms to the same effect;</p> <p>Held, that the prosecution of defendant should be proceeded with under the Act of 1886.</p>

<p>Action against the Hawaiian Government for damages for personal injuries to plaintiff for allowing an excavation in a street in Honolulu to remain without sufficient warning- lights at night, into which excavation plaintiff, driving a horse and buggy, was precipitated and injured. The Court was requested by defendant’s counsel to charge the jury as follows : “If the jury find that the Road Board made the excavation, it was their duty to place lights at the scene of the accident; and whether .they failed to do so or not, you .must find a verdict for the defendant, as the Road Board, and not the defendant, is liable.”</p> <p>The statute, Section 2 of the Act of 1890, prescribes that the Road Boards shall have the entire charge and control of the public labor on all roads, bridges and public highways, supervision and control of the expenditure of road taxes and moneys appropriated by the Legislature. The Minister of the Interior appoints the road supervisors on the nomination of the Road Board, and removes them at their request.</p> <p>Held, it was not in error to refuse to so charge.</p>

<p>A was a servant of B, advertising his employer and soliciting orders, the customers forwarding the orders to he, the goods being sent to the parties ordering them;</p> <p>Held : That soliciting and advertising was not forwarding within the meaning of Section 2, Chapter 67, Laws of 1888.</p>

<p>A general power of attorney will not authorize the attorney to convey land, unless it contains words clearly granting such authority.</p> <p>When several parties join in a power of attorney authorizing the agent to settle up an estate in which they are all interested, the agent receives no authority by such instrument to act in matters connected with the estate in which the interests of his principals conflict with each other; for instance, to admeasure the dower of one of the principals in the estate in question, unless such intention is clearly expressed.</p>

<p>Acquiescence in acts alleged to have been done in pursuance of a written agreement made by an attorney in excess of Ms authority, cannot estop a party from denying the agreement, unless he knew of it and that the acts were done in reliance upon it.</p> <p>To entitle one to specific performance of an oral contract on the ground of part performance, it must appear, among other things, that the acts of part performance are referable to a contract such as that alleged, and to no other title, and that the party sought to be charged knew that they were being done on the faith .of the contract; and there must be proper parol evidence of the contract itself.</p>

<p>Upon, the stipulation of parties that an action may be beard, jury waived in vacation, the same may be heard to final decision, and judgment may be entered in vacation thereon.</p>

<p>Where a claim against a bankrupt'is disputed by the assignee, the Judge sitting in Bankruptcy has jurisdiction to bear and determine the validity of the claim, and the alleged creditor is not driven to an action at law.</p> <p>An appeal being allowed from such adjudication by the bankrupt law to a jury, the law is not unconstitutional.</p>

<p>There is no offense known to our law as “an -assault with a dangerous weapon.” A verdict, the mittimus corresponding, finding the defendant guilty of such an offense, is void. The sentence must be void upon its face in order to entitle the petitioner to a discharge on “habeas corpus.”</p> <p>If a sentence within the jurisdiction of the Court and regular on its face, be found by an inspection of the record to he not responsive to the indictment, it is voidable and can only he set aside on appeal or by a writ of error, and is not cognizable on “habeas corpus.”</p>

<p>An exception may be allowed to tbe refusal or denial of a motion for a new trial, on tbe ground that tbe verdict is contrary to the weight of evidence.</p> <p>The statute of limitations of real actions may run in favor'of a married woman. The husband’s possession in law, inures to the benefit of his wife.</p> <p>An invalid or defective title, if believed to be good, will be operative to give effect to a possession taken and held under it.</p> <p>In addition to evidence of title by inheritance, defendant put on evidence showing open, adverse and continuous possession of the land for over twenty years. This was not rebutted by plaintiff. Held, the jury must have disregarded this defense.</p> <p>New trial ordered.</p>

<p>Section 69 of the Act to Reorganize the Judiciary Department requires that a notice of appeal from a Circuit Judge to the Supreme Court must he made in writing and filed.</p>

<p>A person who puts his name in blank on the back of a negotiable note before delivery, and before it is indorsed by the payee, he being a stranger to the note, becomes prima facie a first indorser, in default of evidence of the intention of the parties. There being no date to the indorsement or evidence as to when it was made, the presumption is that it was made before delivery. An indorser is entitled to notice and demand, in order to fix his liability. The complaint in the suit should contain allegations of facts sufficient to show his liability as an indorser.</p>

<p>An opinion was filed by this Court ordering a new trial. Plaintiff’s counsel moved the Court to restrict the order for new trial to only one issue, and also claimed that a remittitur or remanding order was necessary before the case could go on the calendar.</p> <p>.Held, that the Court had power to restrict the new-trial to certain issues, hut the exercise of that power depended on the circumstances of the case. That there was no rule or statute which required a remittitur or remanding order to be made before the case could be placed on the trial calendar.</p>

<p>Under a contract for sale of “ pineapples in good condition to weigh, three pounds and upwards,” defendant {the seller), weighed in the crown or top with the edible part. The Gourt charged the jury that “under the contract the defendant was obliged to deliver the plaintiff pineapples which include the fruit with the crown, and defendant had no more right to multilate the crown than the fruit itself.” Held, no error, since the defendant is held to have admitted by weighing the crown with the fruit that the crown was a part of the “ pineapple ” sold, and it was left to the jury to find whether the crown was mutilated by defendant so that it deteriorated or spoiled the fruit part.</p> <p>Evidence commented on, showing that the jury had data before them upon which to find a verdict for actual damage suffered by plaintiff and for loss of probable profits.</p> <p>In an action by buyer against seller, if the seller fails to deliver the goods, the buyer may recover the difference between the contract price and the market value at the time and place of delivery.</p>

<p>A patent for a combination is not infringed by tbe substitution of an element that performs a substantially different function, or of one not known at the date of the patent as a proper substitute for the omitted element.</p> <p>The burden of proof upon a question of infringement lies upon the party alleging infringement.</p> <p>A patent raises a presumption that- the device is patentable.</p> <p>A device to be patentable need not perform its work better than the same kind of work has previously been performed.</p> <p>A change in the form of one element of a patented combination, though slight, if it works a new and useful result, may avoid infringement. A patent does not cover more than is claimed, nor more than is — described in such a way as to enable others to construct it. Infringement of a patent for automatic feed rolls with longitudinal ribs is not proved by the mere fact that automatic feed rolls with spiral ribs with a pitch of half the circumference of the rolls have been manufactured and sold.</p>

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

<p>Appeal from Whiting, Judge.</p>

<p>Act 1 of the Provisional Government was passed by the Executive and Advisory Councils, sitting together, January 20, 1893. It conferred upon the President the same powers by law theretofore vested in the Sovereign of the Kingdom. One of these powers was the appointment of Judges o£ Courts of Record. Mr. Justice Prear was appointed by the President on the 7th March, 1893. On the 21st January, 1893, Act 4 was passed “ Relating to the Enactment of Laws,” which prescribed that the Executive Council should act jointly with the Advisory Council in the exercise of legislative powers.</p> <p>Held, affirming Sheldon’s case, 9 Haw. 32, that the said Councils derived their legislative authority to enact Act 1 from the Proclamation of January 17, 1893, and not from Act 4.</p>

<p>The Executive and Advisory Councils of the Provisional Government were given general legislative power by the Proclamation of January 17, 1893.</p> <p>Art. 77 of the Constitution of 1887, which provides that “ every law shall embrace but one object, and that shall be expressed in its title,” should be liberally construed.</p> <p>One section of a law may be constitutional, although another- section embraces an object not expressed in the title.</p> <p>Section 5 of Act 3 of the Provisional Government is not contrary to Article. 77 of'the Constitution of 1887.</p> <p>An offense may be described in a warrant of arrest by reference to an affidavit on the same page.</p> <p>Act 38 of the Provisional Government which provides that in certain cases of arrest “the person arrested shall not be admitted to bail without the consent of the Attorney-General,” is constitutional.</p> <p>An Act which is described in its title as an amendment to a preceding Act and which expressly repeals- the preceding Act, is not thereby itself repealed.</p>

<p>Appeal eeom District Court op Honolulu.</p>

<p>Appeal erom District Court’ oe Honolulu.</p>

<p>1. A charge In the District Court in these words held sufficient— ** Defendant is charged with murder in the first degree, in that he did at Honolulu, Oahu, on the 18th day of March, 1892, make a murderous assault with a loaded pistol upon one D. L. Huntsman, in consequence of which said assault the said D. L. Huntsman died on the morning oí Mareh 20th, 1892;” the Magistrate having corrected in his mittimus of committal the year 1892 to 1893.</p> <p>2. It was proper practice to name the Provisional Government of the Hawaiian Islands as the prosecuting party.</p> <p>3. The validity of the appointment of Judge Cooper who presided at the trial, was settled by this Court in a decision rendered June 27th, 1893, on the question raised as to the validity of Mr. Justice Frear’.s appointment — both appointments resting upon the same law.</p> <p>4. An indictment charging that the person killed was “one D. L. Huntsman ” held to be not had, as the Court in the absence of evidence will not presume that he has any Christian name other than such letter or letters. The presumption that every person has a Christian name does not obtain in this country.</p> <p>5. An indictment charging in one count murder, without designating the manner and means of death as authorized by statute is not bad for duplicity when a second count is inserted giving the particulars of such offense.</p> <p>6. A demurrer to the Indictment having been overruled and exceptions taken thereto, it was not error to proceed with the trial, pending the hearing on the exceptions.</p> <p>7. The defendant stood mute, and refused to plead. It was proper by statute {Section 36, Crim. Procedure Act, p. 348, Compiled Laws) to enter a plea of “ not guilty.”</p> <p>&, It was not error to allow a Magistrate to read from his notes of evidence of a witness taken down in the preliminary examination, from an interpreter, the evidence having been given in the Hawaiian language, the interpreter having been sworn as a witness and giving his own statement of what the witness had said, the two statements agreeing substantially.</p> <p>9. The deceased, a lew hours before his death from certain pistol-shot wounds, said good-bye to his friend, and on being told by him that he would call and see him in the morning, replied : “ I don’t think you will see me in the morning.” Deceased also gave his books to-a friend and requested that his trunk, containing his clothing- and other personal effects, be sent to his mother at Haley, in Idaho, U» S. A. Held satisfactory evidence that deceased believed he was about to die, and his statements then made as to who his assailant was and as to other circumstances, were properly admitted as ““dying declarations.”</p> <p>10. This admission is not prohibited by the Constitution. Art. T.</p> <p>11. The burden does not rest upon the prosecution of showing, where the wound is adequate to produce death, that the medical treatment was skillful, and did not in any way contribute to the death, or that deceased had no latent disease or ailment to which his death might be attributable.. “Where the wound caused by defendant is adequate and calculated to produce death, neglect o.r maltreatment will not excuse defendant.</p> <p>12. It was not error for the Court to paáa sentence for manslaughter in the second degree, on a written verdict in the Hawaiian language finding the defendant guilty of manslaughter in the second degree, the character for “second” being the figure 2.</p>

<p>Appeal erom Commissioner oe Private Wats, District oe Honolulu.</p>

<p>The Government owed defendant a balance due on a contract to build a bridge. The plaintiffs garnisheed the Minister of the Interior.</p> <p>Held : That the said balance due the defendant could not be attached, and that defendant was not a Government beneficiary within the meaning of Chapter 50, Laws of 1890.</p>

<p>(1) In the absence of an express warranty to that effect, none can be implied from the relation of landlord and tenant that the building the subject of the demise is safe, well built and reasonably fit for the purpose for which it was demised.</p> <p>(2) The failure to- give opposing counsel opportunity to inspect a bill of exceptions before it is allowed, as provided by Rule 15 (C) of the Circuit Court, would not warrant the dismissal of the bill. The rule being directory the proper course for the Circuit Judge would be to withdraw the bill and allow the opposing counsel the opportunity provided for hy the rule.</p>

<p>The statute (1864) to facilitate the recovery of rents does not give the landlord a lien for rent in arrears upon the goods of the tenant from the commencement of the tenancy. It gives him the right to dis-train the goods of the tenant upon the demised premises, which lien attaches only from the time of the levy.</p> <p>The right of distress is not defeated by a mortgage of the goods by a tenant, the mortgagor remaining in possession.</p> <p>The appointment of a receiver of mortgaged property does not change the title of the property. Property rightfully in the hands of a receiver is not the subject of a landford’s distress for rent. The ■ landlord should apply to the Court for an order to the receiver to pay the rent or to be allowed to proceed' by distress.</p> <p>Property in one tenement is not liable to be distrained upon for rent due on another tenement under another lease.</p> <p>The relation of landlord and tenant must exist between the parties to give a right of distress.</p> <p>A tenancy by parol from month to month is a contract for a “term " within the statute above considered.</p>

<p>Motion for Rehearing.</p>

<p>Appeal from Cooper, Judge.</p>

<p>Following Provisional Government vs, O. A. Hering (decided July 24th, 1898), the Court declines to entertain exceptions from the Circuit Court, First Circuit, to the overruling of a demurrer to indictrnentw — no final disposition having been made of the case in the Circuit Court.</p>

<p>Where there is evidence to justify and support a verdict, it will not be set aside.</p> <p>It is not error for a Court- to take notice of and censure a person for leaving the Court room and communicating to witnesses waiting outside, the censure being made in 'good faith and not likely to prejudice the jury against the defendant.</p>

<p>The District Court, in an action for summary proceedings for possession of land, overruled defendant’s plea of title and rendered judgment in favor of plaintiff for possession of the land, whereupon defendant noted an appeal to the Circuit Court without a jury and remained in possession of the land, but did not file a bond to pay the rent that might accrue after the appeal;</p> <p>Held, That the contention of the defendant that his plea of title should be sustained, and that the District Court had not jurisdiction to hear the case, did not obviate the necessity of his filing the bond required by the statute, it appearing to this Court that the case was one within the jurisdiction of the District Court under the statute for summary proceedings to recover possession of land.</p>

<p>Upon a charge of “ keeping a disorderly house, to wit, a house kept for the sale of intoxicating drink without license,” a conviction cannot he sustained upon proof of a single act of sale, without proof of other facts or circumstances tending to show that the house was kept for that purpose.</p>

<p>The case of Mary Kaleialii et al. vs. M. S. Grinbaum et al. decided April 27fch, 1893, followed, bolding that notice of appeal shall be reduced to writing and filed under Sections 68 and 69 of the Judiciary Act.</p>

<p>The Court declines to reverse the decision of the Circuit Court setting aside the verdict and ordering a new trial on the ground that the verdict is contrary to law and the evidence.</p>

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

<p>The question submitted to tbe jury was, “Ts tbe proposed will a good and valid will in law H” Tbe contestants claim that tbe signature of one of tbe subscribing witnesses was a forgery. Tbe verdict was. for tbe contestants. Tbe proponents moved for a judgment non obstante veredicto.</p> <p>Held, This is not a case of- confession and avoidance, and does not come within tbe .class of cases-where such a judgment can be given.</p>

<p>The case of T. Metcalf, B Haw., (>14, followed, holding that an appeal lies to a jury in probate matters only upen issues touching the validity of a will or the descent of property.</p>

<p>A publication maybe libellous, although it refers to a person indirectly, as where it is allegorical.</p> <p>A publication may be libellous, although it does not impute a criminal offense.</p> <p>It is for the Court to say whether a publication is capable of the mean* ing attached to it by the innuendoes, and for the jury to say wheth* er that is the true meaning.</p> <p>Where words are libellous only when read in the light of, extrinsic facts, such facts must be averred, and the words must be connected with them by colloquia.</p> <p>An innuendo can explain words, but cannot add to them a sense which they do not ordinarily bear.</p> <p>An indictment for words capable of a libellous meaning may, upon demurrer, be amended by the insertion of averments and colloquia to show that the meaning is libellous.</p>

<p>It is unnecessary to -set forth in a ■complaint the substance of the contract sued on, a copy of which is attached to and made a .part of the complaint. If a part but not all of the contract is so set forth, the objection of variance does not lie.</p> <p>A general averment of performance is-sufficient, where great prolixity is thereby avoided and where the covenants and conditions are all in the affirmative and conjunctive.</p> <p>-If defendant’s promise contains an -exception to his liability, the complaint must show t’hat the alleged -breach does not come within the exception.</p> <p>That the defendant refuses to allow the plaintiff to 'perform his part of the contract or to pay him therefor-, is a Sufficient allegation of a breach of covenant to pay.</p> <p>The plaintiff agreed to work “in a skillful and proper manner ” and “ to the satisfaction ’’ of the defendant. Held, 'the defendant is bound to be satisfied if the work is done in a skillful and proper manner.</p>

<p>"She evidence sustaining the verdict,-the-Court. refuse tiiset it aside,</p>

<p>Where the trial Judge allowed and gave a request for instruction in writing and modified it by an addition thereto, the addition being taken down by a stenographer and thereafter transcribed and filed-, the statute (Chap. 66, Laws of 1892), was complied with.</p> <p>Part payment on a note made by an assignee under an assignment by the maker of all his property to realize upon and distribute among his creditors pro rata, is not a payment from which a new promise-of the original debtor could be inferred to take the note out of the statute of limitations.</p> <p>Mere acceptance of a pro rata dividend on an assignment for the benefit of creditors does not imply an agreement to relinquish the residue of the debt.</p> <p>The deed of assignment did not contain an agreement that the receipt by the creditor of his proportion of the proceeds of the debtor’s property should be in full satisfaction of the debt and the creditor made no promise to that effect: Held, it was erroneous to instruct the jury that if they find that the acceptance of a smaller sum by the creditor was in full satisfaction for the note, they might find for the defendant. The charge should have been that there was no-evidence of a release or of any agreement for a release of the claim by the plaintiff.</p> <p>A collateral benefit such as the prompt payment - of proceeds of a debt- or’s property to his creditors would be a valid consideration to support an agreement for the relinquishment of the residue of the debt — if such agreement had been made.</p>

<p>An Act of the Legislature prescribing that a company operating a street railway “ shall pay to the Department of the Interior the sum of ten dollars per annum as a license tax upon each passenger ear used by it and no greater sum shall be exacted as car license,” does not exempt the licenses so issued from the stamp duty imposed by law upon licenses issued from the office of the Minister of the Interior or other Government department.</p>

<p>Section 68 of the Act to Reorganize the Judiciary Department, approved November 25th, 1892 (Chapter LVII. Laws of 1892), does not allow the trial of a defendant in a criminal case, on appeal, by the Circuit Court, or Circuit Judge in vacation, the jury being waived.</p>

<p>It is not a ground for a new trial, that a jury was drawn, against the objection of the defendant, from the remainder of the regular panel after the names of twelve jurors who were sitting in another case had been withdrawn by order of the Court, no prejudice being-shown to have resulted therefrom to the defendant.</p> <p>Section 9, Chapter LVI, Laws of 1892, does not give the defendant the right to tbe closing argument when he presents no evidence. Instructions need not be given in the form requested, if as given they correctly state the law and cover the ground.</p> <p>The unexplained presence of opium in a case of goods imported by the defendant is evidence from which the jury may infer an intent on the part of the defendant to import the opium.</p> <p>Making an entry of goods, and describing the goods in the entry as exempt from duty and as imported by the steamer “Australia” from San Francisco, is evidence from which the jury may infer that the steamer came from a foreign port.</p>

<p>Four Indictments for Fmbezzlement.</p> <p>The quashing of an indictment does not terminate proceedings which were commenced before a committing magistrate. A second indictment, may be presented without a re-examination before the committing magistrate.</p> <p>Jeopardy does not attach until a jury has been impanelled and sworn, nor unless the indictment is valid.</p> <p>Failure to prosecute upon an invalid indictment, or at a term of court during' which a person is committed by a, magistrate, does not. operate as an acquittal.</p> <p>Where a person is committed by a magistrate during one term of the trial court, the term next succeeding the commitment is the n'ext term of the court.</p> <p>Former acquittal is not a proper ground for a motion to quash.</p> <p>A plea of former acquittal should show that the same person Was acquitted of the same offense in a court of competent jurisdiction upon a valid indictment, and should he supported by proper evidence.</p>

<p>(1) A written notice by a notary public to the executors of a deceased indorser of a promissory note, describing it, after their qualification as such executors, on maturity, that demand had been made at the place of payment and the note dishonored, and that the holders looked to the executors for payment, is a sufficient presentation of thfe claim under the probate statute of non-claim.</p> <p>(2) Semble, that the presentment of a claim before the liability of the indorser had been fixed by reason of the dishonor of the note, would not be sufficient under the statute.</p> <p>(3) Where the note designates a place of payment a presentment for payment at that place is sufficient without personal demand on the maker.</p> <p>(4) The notice of the notary to the executors need not have stated who the holders of the note were.</p> <p>(5) An erroneous instruction as to the effect of certain evidence is not ground for a new trial, if the jury would be obliged as a matter of law to find the same verdict on other legal evidence in the case.</p> <p>(fi) The contents of a document being discovered after verdict to be different from what was supposed, is not a good foundation for a motion for new trtal for surprise, if the document was in the party’s possession at the trial and known by him to be there.</p>

<p>The Court cannot notice facts showing- non-joinder of a necessary party defendant in error, where the facts appear in no other way than by defendant’s statement unsupported by affidavit.</p> <p>The petition for a writ of error should contain an alleg-ation that the judgment is not fully satisfied, but the defendant cannot take advantage of the omission of such allegation after joinder, although the Court may of its own motion dismiss the writ, if it appears by the record that the judgment has been fully satisfied.</p> <p>A writ issued August 25,1893, judgment having been rendered February 25, 1893, is issued “within six months from the rendition of judgment,” as required by the statute.</p> <p>All the defendants below should be named in the writ, and all should join in error, unless sufficient cause be shown for the non-joinder.</p> <p>Questions which do not relate to the error assigned, should be raised by demurrer, special plea, or motion to quash or dismiss.</p> <p>Judgment upon a joint note is propei’ly rendered against the “defendants ” simply. Such judgment is a joint judgment, but a joint and several obligation.</p>

<p>Where a salary has been paid to an officer de facto, acting under a color of title, the officer de jure cannot recover from the Government the salary of the office while he was out of the same. The Government is protected from paying it a second time, the title to the office not having been determined by a competent tribunal.</p>

<p>The Court, refuses to reverse an order of the lower Court, setting aside the verdict and ordering a new trial, on the ground of misconduct of the jury, certain jurors having’ held conversations with parties defendant showing hostility towards them.</p>

<p>i. 1 i A schooner completed taking in her cargo of sugar at the port of Makaweli, ICauai, at dusk and soon after started 'on her Voyag’e to Honolulu. Held, leaving the port in the night time was not per «■ evidence of neglig-enee.</p> <p>dj The fact that the salving vessel and the schooner from which the sugar was salved belonged to the same owners does not prevent salvage being awarded against the cargo salved.</p> <p>( ;!) The libellants were under contract to convey the sugar from Makaweli to Honolulu and their vessels were under general orders to assist each other. These facts do not prevent the rescue of the sugar from being a salvage service.</p> <p>Í4) The action of the winds and the waves being the proximate cause of the disaster and the miscalculation of the master being the remote cause, the loss was occasioned by a peril of sea.</p> <p>(o) The schooner L. was loaded and started in the early evening' to g'O to sea from the port of Makaweli, Kauai. The master was at the helm; the crew hoisted the foresail and mainsail, hove on the anchor until it broke ground, then began to hoist the jib. The wind was light and off shore on the port how, as the schooner was coming round. The course out of the harbor was S.W. The wheel was hard to port and lashed. The schooner payed off very slowly and the mate fearing she might touch the reef let the anchor g'O. Shortly after this it was again hoisted, the mainsail-peak was lowered and jib-sheet hauled to windward and belayed, and when the schooner was within two points of her course she struck the reef on the windward or port side of the harbor near the entrance, and stuck fast. The steamer Iwalani was sent for- a.nd when she arrived she anchored, and fastened a hawser to the schooner and kept a steady strain on it to keep her from being- lifted more on the reef 'by the swell, and discharged the sugar rapidly with her own boats, and finally pulled the schooner off into deep water. The L. had knocked a hole in her and afterwards sank, and was a. total loss. This service was attended with hut little danger to the libellants' salving vessel, the sea- being smooth and the wind light, and did not require great skill or any extra expense, and occupied only about twelve hoars: Held, that one-quarter of the net proceeds of the cargo salved would under these circumstances be proper compensation for the service.</p>

<p>On a. motion for a rehearing' it appearing that the Court had before it an account sales which was not before the jury, and on production of the account sales which had been produced before the jury, it appearing that they did not alter the situation of the case — the ('ourt declined to grant the motion.</p>

<p>A decree was made on the 21st September, 1893, that as no ouster was shown, there was no liability to account by the complainant to respond for its use of the common property.</p> <p>After the decree, respondent moved that an account be taken for the use of the common property since the litigation began, on the 16th June, 1891, on the ground that this showed an ouster and an exclusion of the respondent.</p> <p>Held, that the decree found no liability to account for the whole period to its date, covering the time now mentioned in the motion a,nd it was res adjudicóla.</p> <p>Where an accounting between parties is ordered it covers the damages that arise pending the litigation up to the date of the closing of the account.</p>

<p>An executrix who withholds, without just excuse for an unreasonable time, money which she should have paid over to the legatees is chargeable with interest.</p> <p>The executrix not using or investing the money withheld, the rate at which the interest is charg’eable against her is that which the legatees could have obtained upon a safe investment, say six per cent.</p>

<p>Bill in Equity to Declare a Trust.</p>

<p>The statutes concerning divorce and separatiou do not authorize the granting of a separation to the libellee on an answer and cross-bill to libellant’s libel for divorce.</p>

<p>The Court refused to disturb the order awarding alimony, on a petition for separation.</p>

<p>Appeal op B. R. Banning.</p>

<p>Appeal oe B. E. Banning.</p>

<p>An appeal does not lie from a ruling upon exceptions to a Master's report, no final order having been made.</p>

<p>It is not an abuse of discretion for a Circuit Court to grant a motion i'or change of venue from Maui to Honolulu iu a criminal case, for the reason that it may be necessary to produce in evidecce the records and hooks of the General Post Office in Honolulu, and that it would be detrimental to the public service and contrary to public policy to remove such hooks and records to another island.</p>

<p>The judgment of the District Court finding the defendant guilty of an escape from imprisonment is affirmed, there being evidence to support it.</p>

<p>L. contracted to build a dwelling bouse for P. and gave a bond to deliver the building' free of liens and claims. A. was surety on the bond and delivered materials to L. for use in the building.</p> <p>Held A. is not estopped to assert his matei’ial man’s lien by reason of being surety on the bond.</p>

<p>A woman who married and acquired laud prior to the passage of the Married Woman's Act (Ch. XI, Laws 1888) may after its passage execute without the consent of her husband a valid lease of such land so as to entitle the lessee to possession after the death of the husband.</p>

<p>Am affidavit in support of a motion to open a default alleging that affiant “verily believed.” that an answer had been mailed to the clerk is insufficient: the affidavit stating that defendant has a g-ood and meritorious defense is insufficient. It should set out the facts relied upon in defense so that the Court can judge of the question of merits.</p> <p>A letter was identified by a witness against plaintiff’s objection. The letter was not admitted in evidence. Held, as the identification of the letter did no harm, it not being read to the jury, it is not reversible error.</p> <p>An action for breach of promise of marriage admits of punitive damages for injury to feelings, affections and wounded pride which are within the sound discretion of the jury. The verdict for $400 where $5000 were claimed as damages does not of itself, considering the evidence, show that the jury acted with bias or partiality and is not ground for a new trial.</p> <p>A person who stands in the relation of father to defendant, on the day before the trial of this case, asked for and obtained the names of the persons who had been summoned as jurymen, and endeavored to influence one in favor ol defendant; (this juror having- been after-wards drawn on the case and challenged) and was seen talking in a low tone of voice with another juryman whom he had sought out. who served on the case. The inference is not a violent one that he endeavored to influence the second juryman also, taken in connection with the fact that no explanation was offered as to the character of his conversations with the juror, and with his treating- several of the jurymen to spirituous liquor. The cireumstauces disclose misconduct sufficient to warrant the Court in setting- aside its verdict and ordering- a new trial.</p>

<p>To constitute a surrender of a lease by operation of law there must be a change of possession, by consent of the parties, inconsistent with the continued existence of the lease.</p> <p>A tenant may not deny the title of his landlord and attorn to another unless he is actually evicted or at least in imminent danger of eviction.</p> <p>Mere knowledge of a landlord that his tenant paid rent to another is not sufficient to show his acquiescence in the tenant’s so doing. Money once paid as rent but afterwards returned cannot be again recovered as rent.</p> <p>■Such money having beeu included in the judgment of the lower court, a new trial is ordered unless the plaintiff remits so much of the judgment.</p>

<p>The clause of Section 1, Chapter 3(5, of the Laws of 1884 making the. possession of spirituous liquors distilled in these islands prima facie evidence of the distillation thereof is not repealed specifically nor by implication by Chapter 108 of the Laws of 1892-8.</p> <p>The “distilled liquor"’ was found in the defendant’s house. He said to the officer arresting him that “he did not make it but his wife did ; ’"</p> <p>Hold, that as the jury did not believe it the Court cannot say as a matter of law that it rebutted the presumption of guilt.</p>

<p>A decree ordering' a commissioner in partition to sell certain lands at public auction, remained unexecuted for several years; in the meantime, some of the owners sold their interests to an outside party. He moved the Court to have the decree executed, when several of the remaining owners filed a discontinuance of their bill for partition.</p> <p>Held, that where the discontinuance would result in injury to any of the parties it is not allowable. That after decree a cause cannot be discontinued against objection.</p>

<p>Luka who owned property died intestate leaving an infant son and a husband Ehu by name. The son inherited the property. .The sou then died and the father inherited. Then the father Ehu died. Held, that a half brother of Ehu, or his children by right of representation, inherited equally with Ehu’s sisters.</p> <p>In statutes of descent an ancestor is one from whom the estate is immediately inherited. A father in such statutes is considered to be “ of the blood ” of his son.</p> <p>The proviso in the latter part of Sec. 1454 of the Civil Code, excluding-from the inheritance those who are not “of the blood” of the* ancestor from whom the estate came to the decedent intestate, does not exclude those of the half blood of such ancestor.</p>

<p>Verdict under the circumstances held not to be contrary to the law and the evidence.</p>

<p>The defendant was found guilty of an offense by a district magistrate, arid received a sentence authorized by law. During the progress of the trial the magistrate erroneously refused certain questions to be asked by defendant’s counsel of a witness in order to affect his credibility. After sentence the defendant appealed to the Supreme Court on the point of law — i. e. the refusal of the magistrate to admit the evidence, and asked for his discharge.</p> <p>Held : The law point sought to be raised is not appealable from the district court being an interlocutory ruling.</p> <p>A ruling of law to be thus appealable must be one that is vital to the case and involved in arriving at the final decision.</p>

<p>Sec. 37, Ch. LVIT, Laws of 1892. does not give a Circuit Judge power to issue a writ of habeas corpus in the case of a person conv.ioted, or in execution upon legal process.</p>

<p>Libel for divorce held, under the circumstances, improperly dismissed for want of service of an amendment upon the libellee.</p>

<p>Appeal prom District Court op Honolulu.</p>

<p>In Equity. '</p> <p>Appeal from First Circuit Judge, First Circuit.</p>

<p>The report of commissioners for the partition of lands is in the nature of a verdict of a jury or a decision of a Judge without a jury, and should not be set aside as against the evidence, unless the evidence clearly shows error in fact, and that the commissioners did not follow the evidence produced before them.</p> <p>Partition is not a statutory proceeding and a Court of Equity has jurisdiction, and the equitable rights and principles governing partition apply.</p> <p>The lay of the land, contiguity, value, location and availability and occupation are among the equities applicable to partition.</p>

<p>Upon appeal from a District to a Circuit Court, the bond for costs to accrue should be to the Clerk of the Court and not to the appellee.</p>

<p>A Circuit Judge in Probate may order a guardian to pay counsel fees to Ms ward’s Avife to enable her to defend in proceedings brought to deprive her of the custody of her infant child.</p>

<p>Larceny.</p> <p>Exceptions from Circuit Court, Fifth Judicial Circuit.</p>

<p>The evidence on the question whether defendants’ occupation of land was adverse and continuous being conflicting, the Court declined to disturb a verdict for the plaintiffs, there being evidence to sustain plaintiffs’ contention that defendants’ possession was not adverse nor continuous.</p>

<p>Appeal prom Cooper, Judge.</p>

<p>A motion for a new trial which is not-founded upon error of law, is addressed to the judicial discretion of the trial court.</p> <p>A stronger case must he made for interfering with the exercise of such discretion where a new trial has been granted than where it has been refused.</p> <p>A note containing a recital of “ value received ” is prima facie evidence of a valuable consideration.</p> <p>Under the circumstances of this case, the order granting a new trial is sustained.</p>

<p>The court helow found that the bankrupt had $200 in his possession the same being part of the assets of his estate, and held that before the bankrupt could have his discharge he must pay the said $200 to the assignee.</p> <p>No reason appearing for this Court to reverse this ruling, the appeal is dismissed.</p>

<p>Bill to Cancel Deed.</p> <p>Appeal from Circuit Court, First Circuit.</p>

<p>Section 7 of Chapter 22 of the Laws of 1888, authorizing a Circuit Court to imprison a bankrupt, if on his examination or on his application for discharge it shall appear that he has done or omitted to do certain acts, held to be unconstitutional. Such acts or omissions not being punishable criminally when committed, cannot be made so on the happening of another event which has no connection with them. Such proceedings are not an exception to the general provision in Article 7 of the Constitution that no person shall be held to answer for any crime or offense unless upon indictment.</p> <p>The petition against the bankrupt alleged that he failed to deliver up his cash book — the finding of the Court that he had not kept such a book is not responsive to’the charge.</p>

<p>Appeal prom Decision op Circuit Judge Cooper, sitting in Probate.</p>

<p>The plaintiff brought a bill in equity to set aside a deed. The defendant pleaded in bar a decision in a law case (ejectment) where the court hadheld the said deed to be a conveyance of certain interests in land. Held that the decision pleaded in bar was no bar to the proceedings in equity, either to set aside or reform a deed.</p>

<p>Appeal from District Court of North Hilo.</p>

<p>Writ or Certiorari.</p>

<p>The Court will not order a default set aside, and a case re-opened for a rehearing, where it does not appear that there has been a clear case of abuse of discretion by the court.</p>

<p>Question Reserved.</p>

<p>Appeal erom Cooper, Judge.</p>

<p>Boad Controversy.</p>

<p>Submission of the Case without Action.</p>

<p>(1) A demurrer to a declaration was sustained in the Circuit Court on a particular point and exceptions taken to the Supreme Court and there overruled. The Supreme Court held the declaration deficient on another point and sustained the demurrer on this point and said that the plaintiff should be allowed to amend and remanded the case to the Circuit Court for further proceedings. The defendant then caused judgment to be entered in his favor: Held, the judgment</p> <p>so entered was null and void, because the decision of the Supreme Court showed that the case was not finally disposed of, and was premature because there was then no opportunity for the plaintiff to ask allowance of his amendment, the Circuit Court not being iu session.</p> <p><2) A decree iu equity in a former suit between the parties was pleaded in bar to the present suit. The decree did not indicate upon which of several contested points it was founded : Held, it was competent to ascertain by extrinsic evidence the precise point which had been determined in t he former suit. An inspection of the decision disclosing that the point in the present case was not determined in the former case it is open in the present case.</p>

<p>A plea of former judgment though not made in the District Court may be entertained when made in the Circuit Court on general appeal.</p>

<p>A new trial should not be granted for an erroneous rejection of evidence of such slight importance that there is no reason to believe that a new trial, if granted, would result differently, espeeiallj’ after two juries have already rendered the same verdict.</p>

<p>1. It is within the province of a bankruptcy court (where the evidence shows a variance between the allegation as to who constituted the partnership of the debtor firm and the facts as found) to make such an order as the facts would justify without dismissing the petition.</p> <p>2. The non-service of a partner who is without these islands is no cause to abate the proceedings. Its only effect is to exempt the said partner’s property from liability for the partnership debts.</p> <p>3. Objections to the indemnity bond should be made in the bankruptcy court to be appealable to this Court.</p> <p>4. The petitioners alleged themselves to be a firm consisting- of three partners, but only proved two of them to be such : Held, no objection to this variance having- been made in the court below, where the evidence could be supplied, it cannot be considered on appeal.</p> <p>5. This Court has authority to remand the proceedings to the Circuit Judge in Bankruptcy for the purpose of allowing amendments to the petition to make it correspond with the facts and the order.</p>

<p>Appeal prom Cooper, Judge.</p>

<p>In Equity. Appeal prom Whiting, Judge.</p>

<p>The contestant upon appeal from a decision of the probate court admitting the will to probate did not show prima facie that she would inherit property from the decedent if the will should be refused probate. Held, that she was not entitled to a trial by jury.</p>

<p>(1) An indictment charging that “one A. B. * * * O. D. did assault, strike, cut,” &c., is not bad on the ground that the object comes before the verb.</p> <p>(2) Under the statute making murder of two degrees (Chap. 71, Laws of 1890),the omission in the indictment of the words “ deliberate, premeditated ” before the word “ malice ” charges murder in the second degree.</p> <p>(3) Where the second count in the indictment fully and plainly sets out the manner and means by which the death was caused, it does not become necessary to consider whether the first count which is the form authorized by statute (page 342 of Compiled Laws), is contrary to Article 7 of the Constitution of 1887.</p> <p>(4) Chapter 49 of the Penal Code (Sec. 5) authorizes an arrest without a warrant by an officer of justice in a seaport or town when the defendant is found under such circumstances as would justify the suspicion that he has committed or intends to commit an offense.</p> <p>(5) If the defendant attempts to escape, the officer is authorized to detain him, and if the officer is immediately attacked by defendant with a dangerous weapon, allowing- no opportunity for the officer to declare that he is an officer of justice, this fact alone does not render him a trespasser.</p> <p>(6) The law does not require that a person attempting to escape from an officer should be notified of his official character before the officer places his hand upon him. The notification may be coincident with the placing the hand on the defendant and may not be made at all if the circumstances render this impossible.</p> <p>(7) Deputy clerks of the Judiciary Department are clerks of the Circuit Court, First Circuit, and as such are authorized with a circuit judge to draw juries.</p> <p>(8) The Qveen vs. Lecmg Man, 8 Haw. 339, affirmed.</p> <p>(9) In a case not capital it is within the discretion of the court to allovt the jury to separate during the trial.</p> <p>(10) The jury must be satisfied that the deceased came to his death as d consequence of the wounds inflicted by the defendant.</p> <p>(1,1) Instructions not pertinent to the facts of a case need not be given.</p>

<p>A married woman could, even prior to the Married Woman's Act oí 1888, make a valid contract, provided her husband consented thereto, under Sections 1286 and 1287 of the Civil Code.</p> <p>An action upon such contract, if brought after said Act, should he against the wife alone, although, if broug'ht before the Act, it should have been against both husband and wife.</p> <p>The creditor's claim against.the husband for the debt ol his wife, under the Code, was not a vested right, and might be taken away by statute.</p> <p>A new trial is ordered on the ground that the decision of the trial court, against husband and wife is contrary to the evidence, which shows a cause of action against the wife alone.</p> <p>The plaintiff' is given leave to amend by striking out the name of the husband, as defendant, in view of the circumstances of the case, and especially of the fact that the statute of limitations has become a bar to a new action since the commencement of this action.</p>

<p>Circuit courts may grant new trials in criminal cases.</p> <p>Verdict held supported by evidence of an extra-judicial confession corroborated by proof of the corpus delicti.</p> <p>Evidence that a witness had previously lived under a different name is irrelevant and inadmissible for the purpose of discrediting him.</p> <p>A motion for a new trial on the ground of newly discovered evidence should be filed within ten days of the trial.</p> <p>A new trial should not be granted merely because a witness for the prosecution stated afterwards that his testimony was false, especially if there is no reason to believe that a new trial would result differently.</p>

<p>(1) Held, following Republic of Hawaii vs. Saku Tokuji, page 548 ante, that circuit courts have the power to grant or deny new trials iu criminal cases.</p> <p>(2) Affidavits in support of motion for a new trial, on the ground of newly discovered evidence, must show that the evidence was newly discovered, and that the exercise of reasonable diligence could not. have secured the evidence for use at the trial.</p> <p>(3) Affidavits disclosing’ the existence of evidence cumulative to that offered by defense, furnish no ground for a new trial. ■</p> <p>(4) Evidence which goes only to impeach the credit or character of a witness, is not sufficient ground for a new trial.</p>

<p>Appeal in Equity from Circuit Judge, First Circuit.</p>

<p>Verdict held not contrary to the evidence.</p>

<p>Bill in Equity to Cancel a Deed. Appeal from the Circuit Court of the First Circuit.</p>

<p>■Costs incurred under a commission to take testimony, held, under the circumstances, not improperly taxed as costs in the cause by the Circuit Judge in the exercise of his statutory discretionary power.</p>

<p>In Equity. Appeal prom Whiting, Judge.</p>

<p>(1) A conveyance of land claimed to be a mortgage was made 11th April, 1872. Under it the grantee took and held possession of the land until 29th November, 1893. Held, the right to redeem was barred by the lapse of time.</p> <p>(2) In considering equitable claims to land, equity will adopt the statutory period for limitations of real actions.</p> <p>(8) When the language of an instrument renders it doubtful whether the contract be a mortgage or a conditional sale, the intention of the parties, as ascertained by their situation and acts, must govern.</p> <p>(4) Though the courts will in doubtful cases construe the contract to bo a mortgage rather than a conditional sale, when a conditional sale is clearly established by the acts of the parties and the instrument is susceptible of it, it will be enforced.</p> <p>(5) An instrument conveying land in fee, and if the purchase money is repaid in six months to remain the property of the grantor, and if not repaid in that time, the property to be the grantee’s, held to be a conditional sale, the acts of the ijarties showing that they thus understood it.</p>

<p>On Appeal prom First Judge, First Circuit Court, denying a Writ of Mandamus.</p>

<p>An allegation of a seizure of goods by the Collector-General for the purpose of confiscation is sufficient to give the Admiralty Court jurisdiction over the goods, without a further averment that the goods are still in his possession, and without a further seizure by the Marshal, under Section 667, Compiled Laws.</p>

<p>A charge of maim by biting and tearing oft an ear under Penal Code, Chap. 9, Sec. 3, is sustained by proof that a portiou of the rim of the ear was bitten off.</p>

<p>A n affidavit in replevin required by sub-division 3, Sec. 2, Chap. 38, Laws of 1884, following the Hawaiian version, is sufficient — it not appearing to the Court that there is any radical and irreconcilable difference between the English and Hawaiian versions of said statute.</p> <p>Defects in an affidavit in replevin do not affect the cause of action itself —only the right to obtain immediate possession.</p>

<p>Writ of Error.</p>

<p>In Equity. Appeal . from Circuit Judge, Third Circuit.</p>

<p>In Equity. Bill to Reform a Deed.</p>

<p>Following Hana i;s. Mehehda, 4 Haw. 447, and Briggs vs. Briggs, id. 448. the Court, finding evidence upon which to sustain the decree made denying the divorce, overruled the exceptions.</p>

<p>Assault and Battery with a Weapon. Exceptions.</p>

<p>Where persons are charged with adultery as having been committed within one month prior to date of the warrant to arrest them, evidence tending to show an offense of the same character committed i fter the time laid in the charge is admissible as proof of the continuing adulterous relations between the defendants, and the jury should have been so instructed. It was error to charge the jury that proof of adultery “ at or previous to the time of the arrest was sufficient to convict.”</p>

<p>No appeal lies to the Circuit Court at term from an order of a Circuit Judge at Chambers refusing to revoke the probate of a will.</p> <p>An appeal to the Circuit Court at term was dismissed by the court; Held, that an appeal from the order was not the proper method of bringing the case before this Court, it being a term matter the question should have been presented on a bill of exceptions.</p>

<p>In Equity. Bill to Reform a Lease.</p>

<p>A mortgagee of a rice plantation took possession of the premises for breach of condition, put the husband of the mortgagor in charge of the premises, hired and paid for the labor in harvesting the crop of rice, had it put in bags marked with his agent’s initials. Thereafter, and before the rice was removed from the premises, it was levied upon under an attachment by a judgment creditor of mortgagor. Held, the replevy of the rice by mortgagee (plaintiff) from the custody of the Marshal was good.</p> <p>The mortgagee contained an agreement to sell to mortgagee future crops not growing' on the premises at the time the mortgage was executed. It was contended that a sale and delivery of the crop levied upon had not been made as required by the agreement. Held, that as the crop was still standing on the premises when the mortgagee took possession it was covered by the mortgage.</p>

<p>[n a,n action in the District Court of Honolulu of trespass quart dausinu frcyit, for digging a ditch, on plaintiff’s land, the defendant “ admitted the acts complained of, claiming title in himself and pleaded to the jurisdiction, denying' title of plaintiff.’’ The statute, Section 10. Judiciary Act of 1892, prescribes that district courts shall not have cognizance of real actions, nor actions in which the title to real estate shall come in question ; Held, in the absence of a statute or a rule requiring more, the plea, is sufficient to oust the District Court of its jurisdiction.</p>

<p>Affidavits on motion for a new trial showed expressions of opinion on the part of one of the trial jurors, which amounted, to bias and prejudice against the defendant. Held, that this was sufficient ground for granting a new trial, it appearing that such ill-will was unknown to the defendant and his attorney at the time of the trial.</p> <p>On the examination as to his qualification one of the jurors was asked if he could sit on the case and give a fair verdict according to the evidence, to which he answered, “yes sir, I am unbiassed, and would be governed by the evidence.” Held, to be a sufficient examination as to his bias, and that it was immaterial that the question was asked by the prosecuting officer and not by the defendant’s attorney.</p> <p>The, juror was not put upon his voir dire when examined in regard to his fitness to sit. Held, that it was sufficient if the defendant had reason to believe from the answers of the juror, that he could have a fair trial at his hands although he was not sworn.</p> <p>A new tria-l will be granted when good cause is shown. Held, that under our practice a motion for a new trial is not addressed solely to the discretion of the trial judge, and the granting or refusing a new trial is ground for exception, and will be reviewed as such. Following Kawai K. George vs. Hanakaulani Holt, 9th Haw., page 135.</p>

<p>Defendants pleaded guilty to a charge of selling spirituous liquor without a license and sentence was suspended. Thereafter they were again arrested for another offense of the same character. On being brought into court a nolle prosequi was entered and the court imposed sentence in the previous case. Held, it was no error to thus pass sentence though proof of the second offense was not made to the court.</p>

<p>Appeal from Commissioner of Water Rights, Honolulu.</p>

<p>The fact that costs are not deposited by plaintiff at the time the suit is filed does not constitute an error.</p> <p>There can be no reversal on error of any finding depending on the credibility of witnesses or weight of evidence.</p> <p>The cases of Hang Fook vs. Republic of Hawaii, 9 Haw. 593, and Vierm vs. Hackfeld, 8 Haw. 438, affirmed.</p> <p>An assignment of error, genei’al in its nature and indefinite, is not a, proper assignment of error and is not considered by tbe Court.</p>

<p>A declaration in an action on a judgment in favor of one who thereafter died, is demurrable when brought by the legatees and not by the executor — it not appearing why the executor has not brought suit.</p> <p>An allegation that the court in which the judgment was entered was a court of “ general jurisdiction ” is not equivalent to an allegation that it is a court of record.</p>

<p>In a district court defendant pleaded to the jurisdiction, pleading title in real estate; the court sustained the plea and a general appeal was taken to the circuit court, where the same plea was made and overruled and the case was tried on its merits with a jury. Held, that the district court had jurisdiction; that the appeal should have been on a point of law; that the case should have been remanded to the district court for hearing on its merits.</p> <p>The verdict is set aside and case remanded to district court for trial.</p>

<p>(1) A person named in the will as executor renounced the trust on the will being proved, in the probate court and an administrator with tho will annexed was appointed who wound up the estate and was discharged. The will was contested and tho caso carried on appeal to a jury who sustained the probate. After the discharge of the administrator a writ of error was sued out alleging error in the charge of the court and the assignments of error were served upon the executor named in the will, as defendant in error. Held, that the writ should be quashed because served upon tho wrong person.</p> <p>Semble, if the administrator had been made defendant in error, plaintiif in error would be remediless so far as tho property of the testator was concerned, it having been delivered to the devisee.</p> <p>(2) Any person “ aggrieved ” may apply for a writ of error.</p>

<p>(1) A defendant was committed for trial for instigating others to commit an offense. The Attorney-General declined to indict him on this charge and ho was discharged from custody and again arrested, committed, indicted, tried and convicted on the charge of being an accessory before the fact to the commission of the said offense, Held, that the former proceedings were no bar to the conviction and there was no “ mistrial.”</p> <p>(2) A person exercising the functions of a district magistrate is a de facto magistrate and a de ./tin? magistrate to all parties except the State. Where a warrant issuing from a district magistrate is offered in evidence it is not necessary to prove its legality that the commission of the magistrate be produced. Circuit courts can take judicial knowledge of the appointment of the inferior magistrates.</p> <p>(3) Reference was made in tho body of a warrant, for the names of all but one of the parties to he arrested, to the information which preceded the warrant on the same paper, and contained the names of tho parties complained against. Held, the warrant complied with the statute.</p> <p>(4) Extreme strictness is not required in writing in English a Chinese or Japanese name. “ Ois ” as pronounced by a Hawaiian would he idem sonans with “Oishi.”</p> <p>(5) Where the evidence shows that a person incited others to assault police officers generally if they came for a certain purpose, the person inciting is responsible even though the officers were armed with legal warrants.</p> <p>(6) To hold a person guilty of inciting another to commit an offense it is not necessary to show that he exercised so great an influence over him as to deprive him of the freedom of his will.</p> <p>(7) In order to distinguish between certain defendants and an accessory before tho fact tried with them, a separate verdict against these defendants was rendered, finding them “ guilty of the charge of resisting the officers.” Held good. The verdict if free from uncertainty, is good though it does not contain tho particulars of the ' indictment in describing the offense.</p>

<p>Water Controversy.</p>

<p>Appeal from Decree of Cooper, Judge.</p>

<p>Replevin.</p> <p>Heard in vacation by consent as of the April Term, 1892, the jury having been waived.</p>