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3 W. UI1,'GLEY.
'J. W. HINGKBEY w CO;,
'Fferte ha.va.jSta. cigars i
AMI IIEAI.EIIS. IS
Smoking & Chewing Tobacco
Lxlrtv 'jtifffitj 11 iy .111.1, IVjnnlvaiila, Connect. rill, Manila, Sumatra, ami
Dutch Lear Toliacco for Sale.
Cigars made to order from any Desired Leaf Tobacco.
r iftn m Hi- Jlirr . !! ulicllrd anA will rwHrr nmpt a'l ittlon n
I. . .a,,!,!,, ,,, .t.t IllnrV "O 1 irt Vrril and It Hotel Mrcrl. limn 'nlii. II I tin
Silver! Silver! Silver!
GRBAT SILVER GIFT SALE!
Saturday, November 29, 1884,
.T o. ar. Sussex'
$5,000 WORTH OF SILVER PRESENTS
Will be GIVEN AWAY during this Sale !
Butter Knives, Butter Dishes, Castors,
Elcx, to Every Customer Purchasing 32.50 "Worth of Goods.
?0"E"S, TOYS, TOYS,
OF TOYS --$2,500
-And Xmas Presents will he given away during- this Sale to
Customers buying 31 worth or more.
Don't Buy Toys for Christmas, but call at
OH! AS. T. FISHEL'S
w.t Corner Fort and Hotel Streets. ,
104. Fort St., - - - - Honolulu
On Saturday Next, October 25
INDIA RICE MILLS
107, 109 & 111 FREMONT STREET
rrm inih !:hi.mii,i., rri:i:aa i KAirsoriMiAcruAi.
" .' """""" ! n jnali Kular-rd liy lltrcm lmproicmcnlt.itcnoir III. to perfection
j LJmCIjL Tl' T " . I.' l""'"??;.?' ami r nr nrlttiey riaiid anriTtllr.1 Th. rlrlil at these
'?5l",J' I"11" rhible Itlc twin Ill prnimU nt rtldr, to qualllT of tlic l'addy. tiMctl
- By HujUlcciantM and Hie 1'ror.rictor
h, enabled la Largely induce the Rales for the Hulling & Cleaning of Paddy.
2xcstziz:;xm ,tiiATua r imiidi TovvxntA.xisio
am iiAiiMi it ii.);tM:ri attiii;.n ika.ncimo jhu.n.
tiii; r(ii,Mui: n nt:
IM. tlriirllj f Ui J at Hi.-San Fianciwo
(mI Sntlucln llirjlrlit or Mtrrfaatttilili' IClcr
In! akln;r in Itntrifwr Clcatilnp
Itli I rMiur Hiitl Mciiiicsh In Qua lit of
l ttilnrtnH nml ClrntillniH of rtVr
CONSIGNMENTS OF PADDY SOLICITED.
Gen oral CommUflon Me reliant and Proprietor of th)
" INDIA RICE MILLS. Sun Frnncisco. Cal.
JWew m1 by Late Arrivals
FROM SAN FRANCISCO,
NEW YORK & ENGLAND,
Received by Castle & Cooke
ALSO, TO AIUUVE BY VESSELS DUE FROM ABOVE PORTS, AND
To be SOJL.U at JLOWJE8T B ATBiJS
Suitable for Plantations,Country Stores
Or FAMILIES. Onlors at Sliorlot .Notice ami with
to Purchasers. Addition Is Called to Our
Improved 3?ai?is PL O "W
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rtomt mi IUb4 f Mtfliac I'Ut Co.. John Ucrrc &X'oM Ac llanc I 'Jo t
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Maliln.rj OII lard, ca.lotalidcjlliidir. ialB tul.i oil.
DISSTON'S CELEBRATED SAWS AND PILES, ALL SIZES;
"' ' .UfW tf su,kV llamitiru for Carpriilrr. JlatljInHIm niacV.mltliF A
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nmwwn9 &..mi.b ojm iiairp iiDUDnck c
BtaVr Umtla. tmll.fl .... Mraiu I- id. lnlnllna. and
Brtl Win. I- am rtnrini; c, lialiauUril lloofinj;,
S 3? .. E J. 2iJ i
iii ji ati. Titkinc .AC A. Hand I Ilteachcd and VnblrachrdOottonr. Iluttla Ularcr,
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STAi'LE UIWUERIKS, Golden
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For Kerpsene Oil We OfFer THEPAULCE, andGuarante
itcannotbebeatfor quality or price; also, THE
vulCAN, a good oil and above test:
WOODWARD & BROWN'S
TIip Cheapest (Jood I'lano; Xcw
Fowlor!s -Patent Tramway,
WithPatent Steel Sleepers
t C BKEWEB CO.
l.lli l.lnlillll loMretll.
Till l.iillrr I'rrrluit from Miii Miirll,' ?
oflm cnmpltlnrd of In rlrnnnl Itlcc
MonMuttli rnsar toito
AM) tti Tlir Itcllrr ItiUrw i (..wavi com-in
in "If over IplnndClcaii'nl. particularly In
India Until r Steam 1'acLtiir t
in, Shelf. Hardware
J nr.caDU .a... KcU ! . 1 Ziuc. . Small .. 11 . . til In V'1'
acnam rural... W.Ttou'a 1'aUnl Cratrifmi,
3L"S" CS- O O ID S
Gale, Slur & Supeifuio Flour
.' i i
Harcn Organ Co.'g l'arlor Organs
f , . ron
PORTABLE OR PERMANENT
IB ft, lengths; 14 lbs. to the yard
tBTAppljlo W. I.. UUEKN. or
U. W. MACFAULiSB & Co.
1USHI Axtnta ror Jno. FoltrJ4Co.
GEO. WOOD. wrnvESTiAV. JAXITAKY 1 18BS
Supreme Court or tie Hawaiian
Chamber. Is Equity.
K. SVLTA, ST AL. TS. ASTOMO J.
Loraz, rr au
Opinion by An$Unt J.
Tliis i an aclion.bronglit to set aside a silo
under a power in a morlsse of rest and
properly upon Hie ground lint the l
was not advertised as rcfinircd by the p tr
or iniliatcil as provided bj tlio niortj;3;c and
rvas improperly conducted, and sales illegally
made to different pnrcliasers; and for an injunction
against a further sale of part of the
property mortgaged, and for relief in accordance
with the facts alleged.
I shall first consider whether the sale was
properly advertised under tho poncr. The
power provides that the aale shall be at public
anction "fiist giving three weeks notice in the
EnirlMi and Hawaiian lancuaccs in to news
papers published and printed in Honolulu, nf
the timo and place ol sncli aale.
The nndiarjulod fact is that tho first advertisement
was made fn the HawaiiaS Gazette
of June 1th, 'Wednesday, announcing the sale
for June 21lh, Tuesday, the intervening time
being only twenty days. The Gaiettk is a
weekly nctispaper published on Wednesday
morning. Tho proofs show publications therein
on June Jtlif 11th, and 1 Bill, only, before
Is this riving three weeks notice in accord
ance with the power. Had the notice been of
a sale opon Wednesday, June 25th, 1681, this
advertisement wonld have been sufficient in
time, I think, though it would bare been better
to say June 2Glb; but as it was, 1 think,
the advertisement was defective. I have examined
with care the authorities cited by Counsel
on both sides and I find none which would
hold this advertisement to be enough. A distinction
is made between statutes or powers
requiring publication for a crtain ptTiudoftimt
and those requiring the insertion of the notice
a certain number nf times in a newspaper.
Sec Wade on tho Law of Notice Sec. 1077.
I think this distinction substantially explains
and renders inapplicable tho cases cited
by the defendant's counsel.
Had the power required a notico published
onco a week for three successive week", what
was dono would havo complied with it.
In Alcott vs. Itobinson, 21 N. Y. 150 cited
by defendant there was a sale of real estate on
execution under a statntc w Idch required "that
tho time and place of holding any sale of real
estate on execution should bo advertised previously
for six weeks successively as follows
1st, a written or printed notice shall bo fastened
up in tlirco public places in the town
where such real estate shall be sold. 2nd, a
copy of such notico shall be printed onco in
each week in a newspaper of such county if
there be one."
In this caso it was held sufficient to post a
uoticc as required by the statute forty-two
dajs previous to the sale, and publish a copy
thereof in six successive numbers of a weekly
newspaper although tho first publication be
less than six weeks prior to Uie salo.
In Priest vs. Tarlton ct al 3 X. H. 93-1 citod
by defendant, the holding is that "When a
computation of timo is to be mado from tho
time of an act, the day when the act is done
is to bo included."
That was a case of the discharge of an insolvent
debtor from imprisonment. Tho statute,
enacts that "said debtor may, at the expiration
of fifteen days from the timo of his
commitment, apply to have said oath (for his
discharge) administered to him.'"
Tarlton was committed on the lCth of Sept.
1822, and on Oct. 1822, applied to take tho
oath. This was held snfiicient, but the time
mtervcuiic was fifteen days without counting
the day tho oath was applied to be taken.
In l3cxtcr vs. Shcpirrl, 117 Miss. ISO also
cileil by defendant tho holding is that "the
hret publication ol a notice of salo under a
mortgago power which requires the notice to
be published once each week for threo successive
w ccks; need not be m ado three eeks
before tho timo appointed for the sale."
See also Bachelor vs. Bachelor, 1 Mass. 2'G
to a similar effect. In Sheldon vs. Wright, 7
Barb. the statute required the order to
be published four weeks successively in two
or more newspapers and it was held sufficient
though four weeks aid not intervene between
first publication and the day to show cause.
In Swctt vs. Spragne, 55 Maine 190-2 cited
by defendant, a statute requiring publication
tlirco weeks successively in a certain newspaper,
is complied with by three publications
though the time intervening between first publication
and sale is not three weeks.
TIicbo arc the strongest cases that have been
found countenancing an intervening time of
less thin the whole period specified tor nctice.
These view s are strongly combatted in several
cases, and by threo dissenting judges in
Alcott vs. Itobicson, 21 X. V. ISO, above cited;
but if correct, they fail to sustain the publication
in the caso at bar.
In Karly vs. Doe. in 1G How. 317 tho Sup
reme Court of the United States holds that a
notice nf a lax sale required to bo advertised
onco in each week for In clvo successive weeks
6 not riven unless the first notice preceded
the salo eighty-four days.
bco also. Itonkcndoru vs. Taylor s lessees 4
Peters 319-39. Bunco vs. Iteed, 10 Barb.
In Howard vs. Hatch, 29 Barb. 297-300-1 it
is held that twelve successive weekly publications
arc sufficient, though less ttian 81 days
iutcrvene between the first and last, provided
the salo is advertised to be at least Si dajs
after tho first publication.
The rule of computation is to include the
day of tho first publication and exclude the
day, tte act is advertised to lie done.
bco Ward on the Liw of Police, Section
1070. Publication for three calendar months
was held accomplished by publishing first
January 10th, and last April 9tb, To the end
of April Oth,-was just three months.
Id. Sec. 1071, 32 Cal. 317.
In Townscnd vs. Tallant, 33 Cal. 45-51 tho
order for hearing in Probate was required to bo
published for at least 4 successive weeks-26
days only intervened and the notico was held
In tho Peoplo ex rel Dcmarcst vs. Gray, 10
Abb. Pr. It. N. Y. 108, it is held that whoro
notice is required to bo published for ten
weeks, seventy days must intervene. See
also anon 1 Wend. 90.
In the light of these authorities, nearly all
of which havo been cited by tho respective
Counsel, I feel that I must decide in this caso
that the sale under tho power requiring tho
first giving three weeks notico requires three
weeks to interveno between tho first publication
and tho timo of sale mentioned, and that
tho notice of sale was therefore insufficient:
and under all the authorities mentioned
if the notico is insufficient the salo under it is
void and not merely voidable.
See also Perry on Trusts Sec. C02 p.
Bloom vs. Burdick 1 Hill 130-11.
Sherwood vs. lteade, 7. Hill 431-4.
Shabcr vs. Kobinsou, 97 U. S.
Wado on Notico Sec. 1105.
Itorcr on Judicial Sales Sec 99.
Second. If the advertisement were to be held
sufficient, very serious objections are mads to
tho method of conducting tho sale of the live
Block. They consisted of a promiscuous lot
of cows, oxen aud horses. The. cows were
sold in lots of twenty, the horses in lots often,
and 1 oxen, and 1 cart wcro sold together.
The sale was at Adams auction room in Honolulu,
none of tho property sold was present
but was at Manoa valley, 3 miles away. No
opportunity was given for inspection and the
lots were not separated but sold generally as
lots of so many. Under such a method ol sale
they could not fail to be sacrificed, as n as
admitted on the stand by the Attorney, who
conducted the sale. In fact every sale of livo
stock mado wad shown to be a sacrifice. I do
not think such a sale can stand.
No actual fraud is claimed, and it is the
fact that the plaintifTSylva was present and
consented to the sale, and afterwards delivered
stock under it, but manifestly be was a eimplo
ignorant man and believed ho was bound.
Other mortgagors were not present, and are
not bound by whatSylva did, but I do not
think bo is estopped from now making the objection
he makes herein.
Tb6 sale would seem to be void for -uncertainty.
Definito lots of particular animals
were Tiot eold but general large lots.- One
lot of 20 cows, sold in form, were not found
or delivered in fact.
See 4 Barb. 481.
In this caso IIS sheep were sold out of 21 or
22 pretenU On being askedVhicli sheep be
sold; tho constable said "tho best and fattest;"
all were driven away by. purchaser and selection
made and driven back.
The Bale was heldToid.
The Court, Judge Marqtn, says. It was the
sale of a right to select out 13 sheep from tho
flock. A constable baa no pwer to make such
a sale or contract. If the owner sheuld make
ench a contract no title would pass till selec
tion was made until then the contract would
be executory. At a sale of personal property
by a public officer the property must be present
and it oust be pointed out and specifically
designated so that the purchaser may know
precisely what he purchases.
We think this reasoning is conclusive.
In New York State it is provided by statute
that tbo goods and chattels eold shall bo present
and pointed out to the inspection and
examination of bidders.
But before any statute and at common law
such a salo was held void.
See Sheldon vs. Soper, 14 John K. 352
vs. Striker, 1 Johns, cases 281-7.
Freeman on Executions Sec. 290.
For this reason also as well as for the defects
in tho notice of the sale I think lbs sale must
be held void.
Third. Tbo regularity of thp sale was
farther objected to on two grounds; first, that
the mortgago provides that upon failure to
pay, the raortgagco is authorized and empowered
to enter into and take possession of the
property and chattels mortgaged and that this
was not done: and second that Mr. Brown, the
plaini ids solicitor bought several lota of tho
sold -which be was unauthorized to
o by law.
A . to the point that no entry was mado
suit, I think enough was dono to
the advertisement for a sale. Tho interest
due was demanded, and a threat mado of salo
undi r ilie power, unless payment was made.
T'ie mortgagee continued to neglect to pay.
To enter and take actual possession of tbo
slock till immediately before tho time of tho
sale would have been inconvenient and expensive.
The power docs not in terms require, it
only "authorizes and empowers" entry to be
Upon the point that the solicitor of the
mortgagee bought some of the property sold,
the authorities cited bj' plaintiffs Counsel seem
btrtmg, but I am inclined In doubt tho wisdom
of tho rule. Provided the sale be fairly conducted
I do not see that injury can arise by allowing
the mortgagee or his solicitor to buy. The
mortgagee is interested at least to bid up to
the amount oi Ins mortgage. Al mo3l Die bate
would be voidable, and if at fair prices and
some" time passed before objection was nude
certainly the sale should stand.
But for the reasons first and second abovo
given, the sale must be set aside and the conveyances
made thereunder must bo cancelled.
There are several purchasers upon whom
this decree will operato as a hardship. They,
howover have no remedy against tho nl.iiiitifls
because thereof. Somoofthe animals liought
are shown to havo been re-sold by the pur
chasers. The animals still remaining must bo
given up to the plaintiffs and those not forthcoming
mnt b"e accounted for by the pur
chasers on reasonable terms, and proots rela
tive to the samo and tho values, and also the
expenses of returning tho animals returned,
may bo taken before the Clerk and on his re
port an cqmtablo decree will be mado in regard
A computation may also bo made by the
Clerk of the amount duo on the mortgage to
tho end that the plaintiffs may pav the same
Upon presentation, a proper decrea will bo
signed under this decision.
C. W. Ashford, for plaintiffs; F. Jl. Hatch,
Honolulu, October, 9th; 1851.
Snpremo Court of tho Hawaiian Islands.--
At chambers in -vacation.
Is TUX MATTER or THE PETITION Ol-
ui, Kealoiia and 1'oLiKAru ron bit or
Before Chief Jvttict Jmhl. Opinion of lite Court.
By tho petition in this caso and tho annexed
exhibit it appears that on tho 8th
of November 1681, an action of trespass
was begun in tho District Court of North
Kona, Island of Hawaii by 15cn Tcnorio
and Moeawakca ngainst tho petitioners,
alleging that they had wrongfully entered
a fenced close at Kahalnu in North Kona
and built a houso thereon, contrary to tho
rights of tho plaintiffs to their dninago
54U also tuat tuo caso was beard by J. j.
Hoapili tho District Justice, on tho 10th
of November and tho petitioners answered
that thoy had entered tho land but
that thoy had a right so to do under tho
authority of ono Holani (w) who claimed
tho land; and that J. G. Hoapili District
Justico rendered judgment that tho petitioners
should removo tho houso from tho
land or pay damages ?10 and costs of Court
$20.10 and that execution has been or
is about to bo issued therefor. Tho petition
prays for a "Writ o Prohibition, to bo
directed to tho Jndgo and the parties
sueing in tho inferior Court, forbidding
them to proceed further in tho causo on
tho ground that tho causo is beyond its jurisdiction.
Tho plaintiffs in tho trespass suit, respondents
herein, demur and say that ,tho
petition doos not set forth such a caso as
entitles them to tho relief prayed for. Tho
issue of law thus raised is whether a District
Court has jurisdiction to try an
action of trespass quart clnuttiin f regit when
tho defendants plea is libcrum tenementum
or title in themselves.
Tho petitioners counsel, J. 31. Poepou
and W. L. Holokahiki rely upon Coney vs.
Manelo 4. Hawn. 151. in support of tho
proposition that District Courts cannot try
titles to land; also that petitioners nro
not bare but that there is a
privy of contract between them and
who has tho legal title. Referring to
G "Waits Actions and Defences p. 90 and
Tho respondents counsel, Kinney and
Peterson, urge that an action of trespass
determines nothing in respect to tho title
of the land in question beyond tho action
tried, and rely upon Chandler vs. "Walker
21 N. H. 282 and cases cited: "Waterman
on Trespass 1119 ct seii., also "Waits
Actions and Defences ir;jra.
l'er euriitm. Tho caso of Coney vs.
was an action for summary possession
of land whero tho defenso was mado of
titlo in tho defendant, and it was there
held that tho District Magistrates havo no
right to try titles to land. This is not
disputed by respondents, but they claim
that tho title to the land is not involved
in this case.
In "Waterman on Trespass, Sec. 1119 tho
author says that " a judgmont for tho defendant
in an action of quart etautum frcqit
would not bo conclusivo upon tho title
bocauso tho right of possession only and
not tho titlo is involved in tho action of
trespass." '-Yet tho titlo innv
bo litigated as a matter directly involved
mtuo issue; anu when that question is
adjudicated and a judgment rendered in
this form of action by n Court of
icnt jurisdiction, tho judgment will con
clude uio parties and operate as an
if tho matter appears on tho fnco of
tho record, or as evidenco conclusivo in
relation to the titlo in any subsequent litigation
of tho matter between them." -1
Cowcn, 589, 11 N. Y., 420.
In 2 Greenleaf's Evidence, Section G13,
tho author in speaking of trespass says,
"Though tho right of property may, and
oftea does come into controversy in this
action, yet the gist, of tho action is injury
to tho plaintiffs' possession." And in Section
G26, "Tho plea of liberum tenementum
admits tho fact that tho plaintiff was in
Sossession of tho close described in tho
eclaration: and that tho defendant did
tho acts complained of; raising only the
question whether tho closo described was
the defendant's freehold or not"
An inspection of tho petition shows that
tho defendants admitted tho acts complained
of, but set up titlo of a third party
to tho land, under whom they acted. To
properly decido this suit tho titlo must bo
upon, and in tho law Courts of
lecord of this Kingdom thero wonld bo
no difficulty in tho way of this procedure.
But it would not bo. right to allow tho I
tiuo to real estato to bo thus settled by a
District Justice, for a judgment of this
character in an action of trespass would
work an effectual estoppel in a subsequent
action of ejectment certainly so far as
tho particular part of tho land trespassed
upon was concerned.
Assuming it to bo law that actions to
try titles to land nro boyond tho jurisdic
tion of District Courts a position not denied
by the respondent's counsel I think
it must follow that theso Conrts havo no
jurisdiction to try trespass ware clautum I
regit wliero tuo plea is liberum tenementum
and x Uioreioro overrnlo tne demurrer.
Honolulu, Dec. 20th, 1881.
Supreme Court of the Hawaiian Islands
In Banco October, Term 1884.
J. T. WATEltKOTJSK VS. J. I). Sl'IIF.CKKLS
ami W. G. Inwijf.
Juttd C. J., HeCully amt Antin'J.J. Opinion of
the Court by Attttin J MeCuIly J. eoiicnrrintj:
Jmbt C. J. tfiientin!j.
This is an action to recover damages for
personal injury. .The defendants demurred to
the complaint; the Chief Justice overruled the
demurrer, and tho defendants appealed to this
The allegations of the complaint, in substance,
aro that tbo plaintiff in 186! wrote to
W. L. Green a letter which is quoted, being
an apology for misstatements acknowledged
therein to havo been mado to injure the said
W. L. Green, and tho firm of which lie was a
fiartner, in their business and reputation and
n which the writer says that he encloses a
check for S300 to pay expenses in a suit for
slander then iiending against tho writer, also
to pay for 100 printed copies of the apology
should Mr. Green desire to print the same, in
order to give him opportunity for circulating
them to repair any injury which he might havo
suffered by what the writer had said or done.
And further the complaint alleges "That on
the 7th day of June, 1881, the defendants intending
to injure tho character, feelings and
reputation of the plaintiff, did, without the
knowledge or consent of the said W. L. Orccn,
orofthe plaintiff, wrongfully and injuriously
print, publish and circulate, or cause, to lie
printed, published and circulated, a large number,
that is to say, several hundred copies of
lb? said letter, and did so wrongfully and injuriously
cause the sail copies of the said let-
tcr to bo distributed and dolivcrcd to divers
residents of Honolulu, aud other persons residing
in this Kingdom." All rf which actions
and doings by tbo defendants, the plaintiff
alleges were dono in contravention of bis
vato rights under tho laws, and to the damago
of tho plaintiff to the amount of $50,000.
The first question to bo considered is the
natnre of tbo action. Tho Chief Justico held
that it is not and cannot be treated as an action
for civil damages for a libel, fin turther examination
of tho complaint and the law we
think that under our statute the holding of the
Chief Justico was error,. , ,
Our statute declares Section 1 , Penal Codo)
that "A libel is a publication in writing, print,
or by a picture, statue, sigr'or a representation
other than by words merely spoken which
directly tend to injure tho fame, reputation or
good name of another person, aud to bring him
into disgrace, abhorrence, odium, hatred, contempt
or ridicule, or ilo cause him to be excluded
Irani society." Section 5jJci.jreti "In
every prosecution for writing or publishing a
libel, tho defendant may give in evidence, in
his defence liion the trial, tho truth of the
matter contained in tho publication charged lo
bo libellous: Provided, however, that such
evidenco shall not be deemed u justification,
unless it shall be further made lu appcur on
the trial that the matter was published with
good motives and for justifiable cads."
Therefore in an indictment for libel, whatever
may bo usual, it is not necessary, to
allege that tho matter is false. Falsity is presumed
until it is shown to be true, and then it
is not a justification unless it appears in tho
case that ihe publication was made with good
motives and for justifiable ends.
Tho principle that in criminal prosecutions
for a libel the truth was no defence unless
published with guod motives and for justifiable
cud;, is now substantially matter of statute in
Knglaiid: 6 and 7 Vic. Sco Otijer on Libel
una Sland'r, p. 390; and is I most universally
the law in America. l.y statute, or constitution,
Prior to the statute of Vic. in England, sinco
Ihe reign of James the I, the truth was no justification
in a criminal case. 2 Kent 19.
But in civil cases for libel or slander, for
over a hundred years, the law has been settled
everywhere, that tho truth when pleaded and
proved is a defence, whsther the damages
claimed are general or special, and however
malicious tho publication may have been.
sec Aent, pages I a and 2a.
Odgers on Libel and Slander, pages 109 and
The reason of the distinction is apparent.
Criminal punishment is attached to libel be
cause it is believed to tend to a breach of the
pcacr. Slander has never been so punished
because from its comparatively ephemeral nature
it was held not to endanger such a breach.
Iu civil actions for a libel, as tho very action
brought shows that no breach of the peace is
likely or intended, tbo trntli is a defence. 2
Kent, pages 10, 19.
Inactions for civil damages foralibo.iu
Chitty and tho well settled English precedents,
tlio allegations aro that tho libel is falso.
In tho proofs at tho trial however, falsity
need not bo first shown though averred, but
truth comes in as a defence, aud properly, the
averment of falsity should not be required, nor
is it required here.
Seo Odgers on Libd and Slander, p. 169.
Our Btatnte defines a libel to bo a publication
in writing, etc., which directly tcmh to
injure the fame, reputation or good name of
another person, and to bring him into disgrace,
It is libel if it tends to disgrace a person,
aud to injure him in cither of tho particulars
named. Proof of injury in all these respects
is not necessary nor need it be alleged.
The allegation in tho case at bar is of injury
to tho character, tho feelings and tho reputation
of the plaintiff. The publication as quoted
in tho complaint is manifestly libellous in its
nature, and tho time and manner of its publication
as averred, after twenty years of silence,
against a merchant, a private citizen, mado it
libel, punishable under our slatulo uhcthcr
true or false.
The complaint positively affirms that the
article published is true, but tho other
alleged, if taken as true show libel of
which .dcfen.l.mti might be convicted on indictment.
The defendants have the benefit of
the allegations iu tho complaint as though
written in tho answer; and upon these and
upon all the facts set forth, there can be no
recovery in this action unless wo overturn tho
well settled authorities of a hundred years.
Whether published matter n liicli is counted
on, is a libel depends upon its nature, and not
upon tho kind of action in which it is set forth
or npon its truth or falsehood.
It is alto held that an injunction to restrain
tho publication of a libel will not lie except
after verdict of a jury declaring the publication
to be libellous.
Seo Odgers on Libel and Slander, pages 13
and 10, and ca scs thero cited.
If this action therefore were brought against
the defendants to restrain tho further publication
of what manifestly appears in itself to bo
a libel, it could not on lh.it ground prevail; but
it miy be, under the authoritici quoted by the
Chief Justice, and by roison of tlio plaintiff's
properly in the Bubstanco of I lie writing, as its
author, that the defendants having it in hand,
however obtained, might, because of such
property bu restrained from its further publi
The publication however being made, that
act done, as wo have slionii, constitutes it a
libel, and tho damages thereby occurring arc
damages in consequence of a libel, and cannot
bo otherwise recovered for. Those damages
cannot be severed, and classed partly as in
juries by libel, and partly by unauthorized
publication or a private letter, which might
have been enjoined.
For theso reasons the decision below must
oc reversed and the demurrer sustained.
cocvnniNO onxios or Jin. justice
In tiii matter I arrive at tho samo conclusion
with Mr. JuBtico Austin that tho demurrer
should be sustained, and had wrilteirmy opinion
at somewhat greater length than is hero
appended. It will bo unnecessary to restate
the case a third time.
It seems very eleir that action cannot Iio
sustained on tho complaint in this case as for
a libel, for it is tho plaintiffs own letter. The
counsel for the plaintiff concedes this in his
argumeft before m, although citing Cooley
on Torts p. 208, note for authority that tho
tiuth of tho publication is not always a
iu civil ciscs. Wc find this nolo to bo
only an expression of the learned authors opinion
of what tho law ought to be, against his
statement in tho text of what it is. Ho says
in tho noto "It is questionable whether tho law
ought nut to hold truthful publications
in samo cases where they rcl.ito to matters
that no ono has any business to bring
the public at all ami nro with no
other purposu than to annoy and subject to
ridicule. Thus it is conceivable that tho most
imnoccnt acts in a man's private lifo or personal
peculiarities for which ho is in no wai
rcsponsiblr may be so mado uso of by a mischievous
person as to destroy tho comfort of
lifo and it seems unreasonable that no personal
redress can bo had. It would seem
that thero ought to bo somo remedy besides
such as the public authorities may see fit to
We havo then the opinion of this distinguished
jurist that for such a class of cases as
lie instances, there is no remedy by civil action,
although contrary to a bcdso of justice.
Tho law in respect to words of most injurious
character to feelings and reputation has been
characterized by Lord Campbell as "unsatisfactory"
and Lord Brougham would substitute
tho word "barbarous."
Chancellor Kent says "Thero is much justice
and sound policy in the opinion that in
privato as well as public prosecutions for
libels the inquiry should be pointed to the
iniMCcnco or malico of the publishers intentions.
Tho trulhouglit to bo admissible iu
evidenco to explain that intent and not in every
instanco to justify it."
I understand the effect of theso eminent
authorities to bo that a plaintiff cannot maintain
a civil action for libel by tho publication
of bis own letter, although they regret that
a mischievous or malicious publication may
not be a ground of action for recovery of damages.
But if it is not to be maintained is a libel
although it Js a publication of and concerning
the plaintiff what grounds of action appear?
It is clear by the authorities that Equity will
enjoin the publication of letters on tho ground
of exposing privato confidence, but it does not
follow that if the publication of tho latter class
havo been made that damages can be recovered
for injury to tho feelings or reputation of
the writer. There cannot bo said in the present
case to be a violation of confidence for
the writer bad sent the letter with leave to
publish and it had been published. There is
no allegation of a loss to the writer by a
second publication and his claim is notforloss
but for damago to reputation.
The plaintiff also relies upon the provisions
of section 1110 of our Civil Code.
This rives a form in which actions may be
brought npon unliquidated demands: It is
the compliment of the form given in section
1100, for actions on vouchers certain or computable
by the Court, and of the form given
in section 1118 for the recovery of specific
property.. It (that of sec. 1110) coven the
wide range of all common law actions not coming
within the specific limits of the other two.
But it cannot be considered that this meager
form thcrby dispenses with the application of
all the settled principles of common law actions.
If it would this action might be treated
as a libel whatever requisites of such an action
as held by all the it might lack.
The form leaves all these to be maintained by
this parenthetical clause ("here set forth the
cause and tho.nianner in which tho injury was
done, circumstantially with the vjew to
proof,") that is to say set forth a legal causo
of action with legal claims for damago.
If an action is broucht for a nublication it
must set fort'i grounds for recovery of
'.imn - -"- !('! piblication produced a
Uss l ... , ' .nO" . i ling this tho form is
dissextixo ormox or cuicr justice
I feel obliged to adhcro to ray former opinion
on tho Demurrer. I think that thero is a
remedy in Case for the injury complained of,
distinct from the conventional action of libel;
and for tliitreason respectfully dissent from
tho abovo opinions of my learned brethren.
A. S. Hartwcll and E. Preston for plaintiff.
Paul Neumann and F. M. Hatch for
Baled Honolulu, December 30. 1S5I.
Supremo Conrt of the Hawaiian IsHndt -In
Ejhia AT. Becklet vs. C Aroxo, F.
Helex Rowland. Julia Peosset. et al.
Itefoie Channlfor JnJ'l. Opinion rflhr Chtnrelfor.
A demurrer in this caso was overruled
April 2nd 1881.
Referring to my decision on tho demurrer
for n statement of tho bill, it now
necessary to consider tho caso upon
tho further pleadings and proofs.
Tho pica and answer of C. Afong makes
profcrt of the proceedings had in 1859 before
tho acting Chief Justico in tho case
of Theophilns Itetcalf against Emma
iletcalf, tho present plaintiff, and avers
that tho record shows no fraud, collusion
or error in law and that tho decree therein
is final and conclusivo upon tho plain
tiff. It also pleads the records of tho
Court and shows that on tho Gth clay
of July 1874 tho administrator with tho
will annexed of tho estato of Theophilns
Mctcalf deceased, filed his petition for
salo of tho real estato of decedent
for payment of his debts, that an order
was mado appointing a timo for hearing
and for thoso interested to show causo
why tho samo should not bo granted, that
at tho hearing it was proved that notico
had been served on the plaintiff, that she
appeared by counsel and opposed tho
granting of tho petition, and nfter full
hearing, an order of salo was mado by tho
Probato Court on tho 17th day of September,
1874, and that after tho salo had been
made, tho administrator filed his petition
for conformation and for authority to exe
cute a deed of convoyanco therofor to this
defendant and that after notico tp tho
plaintiff, an order confirming such sale
and authorizinir tho convoyanco was
mado; that plaintiff appeared personally
or by counsel at all said hearings and
that sho 'is precluded by tho orders
herein fromnow contesting said salo; also
that defendant paid SGG.GOO for tho land
sold to him and that at or beforo tho execution
of tho deed ho had no notico that
tho claim of tho plaintiff that tho decreo of
July 1st 1859 in Chancery, was contrary
to law or that tho samo defrauded her of
her propel ty or that sho claimed to bo tho
legal or equitable owner of tho real estato
otherwise than as a doviseo thereof under
her said father's will and that defendant
nover had notico of plaintiffs claims until
immediately beforo tho filing of this bill.
Tho answer further specifically denies or
admits or avoids tho allegations in tho
It is necessary to restate a few o tho
facts of this caso. In 1852 Theophilns
Metcalf bought of tho Government tho
land of Kanpakuca and procured tho Royal
Patent therefor to bo mado in his
daughter's name, (tho present plaintiff.)
In 1859, in pursnanco of a decreo of Air,
Jrtstico Robertson acting Chief Justico of
tho Supremo Court, this land was convoyed
to Mr. Alotcalf by tho Guardian ad
litem of tho plaintiff. Mortgages wero
mado by Air. Jlctcalf, on this estato upon
which was conducted a sugar plantation.
Jlr. Alctcalf died, heavily indebted, in 1870
leaving by will this land to his daughter
tho plaintiff. Tho real estato of decedent including
tho land in question was sold in
order to satisfy tho debts of tho decedent
by order of tho Probato Court beforo
which Court tho plaintiff appeared and
contested many points, but said nothing
as to tho present claim that tho decreo of
1st of July 1859 was a fraud upon her
rights, and contrary to law. If sho had at
this timo knowlcdgo that tho Patent of
the land of Kapakuca was in her own
namo and had been improperly convoyed
to her father, it would havo been her dnty
to mako tho objection then. But sho says
in evidence sho supposed up to that timo
that her only titlo to tho land was by virtue
of tho demiso of her father and that
sho ascertained tho facts now presented
in her bill after the administrators salo to
tho defendant Along. Thero is no proof
that tho defendant Afong had auy direct
notico of her claims upon this land except
as mado to him by plaintiff in conversa
tion. But this conversation was subso
quentto tho administrators deed, as it was
only then that tho plaintiff herself knbw
tho facts sho communicated to Afong.
So far then as direct knowlcdgo of this
claim is concerned Afong had none when
ho bought this land. But it is urged that
AIr.Af ong took by tho administrators deed
whatever estato 3Ir. Metcalf had and no
moro and that ho is charged with notico
of tho record of 1859.
It is to bo presumed that tho deed of
tho guardian ad litem to Theophilns Mot-calf
in pursuanco of tho decreo is on record.
But there -would bo nothing in this
to put tho purchaser on inquiry as to the
alleged frand and illegality of tho decreo
obtained fifteen years previous.
I am of tho opinion that Mr. Afong
must bo regarded as a bona fido purchaser
for value, without notico of tho
matters now set up against tho decree,
and as this is conclusivo of tho caso I do
not deem it necessary to pursuo further
tho inqmry whether the original decreo
is now roversible.
F.M. Hatch for plaintiff. A. S.
for defendant; Afong.
Honolulu, December 23, 1SS1.
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