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TILE PAC1PIC COMMERCIAL ADVERTISER: HONOIUIU, NOVEMBER 7, 1S94.
5 in the Supreme Court of the Ha waiian Islands. September Term. 1894. IN EQUITY. Samuel Nokris v. Emily De Her-ijlay. ered the defense a valid one and so waived it. It was not the duty of the Court to have passed upon it, of its own motion. The bar of the statute of limitations must be interposed by the dilligeuce of the debtor and unless otherwise provided by statute, be pleaded. It will not be raised by the iJourt unsolicited. Wood Lim. of Ac tions, sec. 7, and cases cited. The plea of the statute of limitations is generally a personal privilege, and may be waived by a defendant or as serted at his election." Id., sec. 41. Ladies' Column. (5tnrral Ujorriisfmrnta. EItRE JUDD, C. J., BICKERTON WM. I03TIR, ESQ. The demand for white cot ton Dress Goods during the last week has induced us to continue the sale of those on hand until they are all sold. Re in the case before us the plaintiff mpmw fu:Q mponc fVmf vni' (the defendant at law), in his answer memoer Ims means ttiat YOL and I stated that he relied upon the statute I bity titfv at jpst what tttf.v SCHILLER ! SCHILLER SCHILLER SCHILLER On appeal from Ciicuit Judge Whit ing, sustaining Demurrer. 'Mr. Foster, a member of the bar, j-at in place of Mr. Justice Frear, dis qualified by reason of his having been counsel.) cost us, not one cent more or one cent less. We ain't mak ing any money on these kind of sales, but it give3 us room for the immense stock of new goods that have arrived by the "Australia." AN "AMERICAN" Cabinet Grand A IIa rf the statute c.f limitations was rule in an action at law by the present iW fc ii(i:int aaint the jreent plaintiff. The Court hearing tiie ca-o lil not pas upon nor decide the defense thus made and counsel did not support the plea by argument, nor request the Court to pas upon it: Held, the omis sion to decide upon the plea is no .'round for equitable relief against the judgment. t of limitations. lis did not, however, call it to the notice of the Court. He also stated in his answer that he relied upon fraud, illegality and payment aa defenses and equally did not press tnese defenses, nor present any evi uenca to prove them. e can come to no other conclusion than that he waived all these defenses. The rule is undoubted that if the law Court had passed upon the plea and overruled it. though it was. in the opinion of a Court or Equity, errone- we Want to move 01 OUT Altai v r j-v 1 r- , M it I 4 wv -r t j 9 - f I neve. (Holmes v. state, 2s n.j. Eq. Hosiery at our Quick Sales LOOK WELL. ;x jurtcu, , cu.i ana amau rronc rrices, so tne secure a decision upon his plea. LALULo JJLALlY blULJA. If the plaintiff had failed t the plea passed upon, through gence or because he waived it, and at last week S Prices. Or the Sii "1 s- r per uozen ones at birjj per dozen, while the S5 per dozen i i jk m ones will co at 54 per dozen. Upright p lano WAKKANTED FOK 5 YEAKS. had after decision, asked the law Court to allow him an exception on this point as a ground for a new trial, he would be refused, because he had not asked the Court to rule upon it; WJSAK WELL, SOUND WELL. S7"Exa:nine these beautiful Instruments at the (Etaural SUitttrtisrmrttta. JUST RECEIVED ! J. T. Waterliouse No. 10 Store ladies' and gent's BATHING SUITS ! Ladies' and Children's Cloaks and Jackets, Children? Pinuforen, Silk, Shetland and Wool Shawls opinion of the coukt BY JUDD, c. J. and an exception to this refusal would The Same with MEN'S SOCKS: This is the second IJill in Kquity by the defendant in a suit at law, to va cate the judgment against him and to enjoin its collection. The bill alleges iu substance that in the suit at law the defense of the stat ute of limitations which was pleaded not avail him. Omission to charge upon any points of law arising in a case, unless desired or requested, is no ground for a new trial, liilliard. r. T. p. 207 and numerous cases there cited. The jury was waived in this case, but we apprehend that the same rule would apply, inasmuch as the was inadvertently omitted to be passed rulings of the Court on matters of law upon by the Justice who heard the in a jury waived case are of the same a.e, the jury being waived, and that general nature as the instructions of the cauae of action was barred by the the Court to the jury and are subject statute of limitations of six years and to exceptions. that the omission and failure of the Justice to rule upon and decide the said issue so made was due to no fault or negligence of the plaintiff or his attorney ; that no appeal at law lay from the said omission or failure of the said Justice to rule upon or decide the issue on the legal effect of the statute of limitations, inasmuch as no ruling had been made and so no exception could have been taken. The bill prays that the judgment be vacated because barred by the statute of limitations, and that the collection of the judgment be enjoined. The defendant demurred to the bill as disclosing no equity. The plaintiff had his day in Court and then and there failed to present the defense he now offers. Kquity cannot grant him relief. The only case cited by the plaintiff btaring upon the equity of this case is Pel zer Manufacturing Co. v. Hamburg Bremen Fire In. Co. C2 Fed. Rep. ' Plaintiff brought several actions against a number of insurance com panies for losses occasioned by the same fire. The jury found in his favor in one action, and it was agreed that the same verdict should be entered in the other actlous. In one of these, plaintiffhad declared on two policies issued by the same defendant, each The ground claimed for equitable policy bein made the subject of a relief, is, concisely stated, the omis sion of the Justice who heard the case to pass upon and decide whether the action at law was barred by the stat ute of limitations. The affidavits show that the Justice did not pass upon nor decide the Isue raised by this plea, and that counsel of plaintiff (the defendant at law) did not present nor argue the question, nor ask of the Court for a finding upon it. The precise question before us is, separate count. Bv haste and inad vertence, a verdict was taken on only one count, the judgment entered there on was affirmed, and, the amount thereof being paid, satisfaction was entered on the record. The omission to take judgment on the second count was not discovered until three years after, when it was too late to move for a new trial or to appeal. Held, that plaintiff's only remedy was in equity, on the ground of mistake in the ver- the S3 per dozen ones are now $2 25 per dozen. We also want to call Special Attention to the magnificent White Cot ton Embroidered Handker chiefs offered this week. They are not cheap ones, its the price of them that is cheap. The interest also increases W V 1 a 1 in our volcano trip ana it is quite evident from late re ports that Madame Pele is making great preparations to do her part for she has been throwing up fountains of fire fifty feet high during the last week and every indication goes to show that by the time you are leady to go sue will be in her glory. Remember and save every check, if you do not have enough you can give them to friends who are makinc: up MUSIC DEPAETMENT, SlJWJXXJN NEWS COMiP-A-IST y I KID GL0VES- JOHN NOTT. clubs. This week week for buyers. is a great B. F. SHLEKS & CO. whether a defense of a legal nature, I diet and judgment." The Court held omitted to be passed upon and decided by the law Court and not brought to the notice of the Court, and upon which no finding was requested, is good ground for equitable relief. I'omeroy says it is not. We quote from 3 Pom. Eq. Jur., Sec. 1361: "Equity will not restrain a legal ac tion or judgment, where the contro versy would be decided by the court of equity upon a ground equally avail able at law, unless the party invoking the aid of equity can show some special equitable feature or ground of relief; and In the case assumed this special feature or ground must neces sarily be something connected with the mode of trying and deciding the legal action, and not with the cause of action or the defense themselves. It is not such a special equitable ground of interference that the party has, by his own act or omission, failed to ef fectually avail himself of a valid de fense at law, nor that the court of law has decided a question of law or of fact erroneously. The principle is well established and is universal in its application, that when a cause belongs to the jurisdiction of the law courts, equity will never Interfere to restrain the prosecution of the action, nor to stay proceeding on the judgment or that the verdict and judgment omitted the damages on one count through accident, mistake and inadvertence, and sustained the jurisdiction in equity. We have no such allegations in the bill before us except such as were previously adjudicated in a for mer case between the parties. We dismiss the appeal and sustain the demurrer. A. B. Hartwell and F. M. Hatch for plaintiff; P. Neumann, Carter & Carter for defendant. Honolulu, October 25, 1S04. DER. CONCURRING OPINION BY WILLIAM FOSTER, ESQ. I dissented from the decision of the Court on the issues presented in this matter at the last June Term, and have since seen no rearon to change my opinion: on the contrary, the affi davits of Mr. Justice Dole, attached to the record now before us, confirm my former belief that be did not consider the question of the statute of limita tions. The sole issue now before this Court is whether such omission of the Trial Justice to consider that question is, for any reason, an equitable ground for now disturbing the judgment: and l execution, upon cnij mere leaal fround, although it may be demon- bJf thi3 Court couU, now further, rlf i ta5herfTnP unJ S! iJiX d And what lapse of time bars a fori a?"ld defense wni?h was not n i"dent, it would be more satis, a aiiu iegai ueiense, wnicn was noi n mm tn inpnrmrat that find- made available, either through the er ror of the court in determining the law or the facts, or the omissions of himself or his counsel in presenting it or in obtaining the evidence by which it could have been supported." Note 1 on page 3i.3. 'It is imma terial whether the question or matters relied upon by the complainant in equity was considered by the law court or not. Omission to present or make out a defense at law Is not a ground for equitable relief." In Day v. Cumming, 19 Vt. oOO, the Court. i?r Iledfield. J., say: "It has &lwav tip An hld. that anv defense. wJiich miqht be interposed at lair to ueieat me recovery, or a poruou oi ii, must be so interposed, or it Is con cluded bv the Judgment." In Simnson v. Eord Howden, 14 Eng. Chan. Kepts., 10$, it was held by 1-ord Chancellor Cottenham: "That a party has not effectually availed him self of a defense, or that a Court of law has erroneously decided a point of pure law is no ground for equitable interference." In 1S07 Lord Eldon said in Ware v. Horwood. 14 Ves.. 31. "Giblett has had an opportunity of defending him self at law; and iu fact a judgment was recovered against him; and, I agree, generally speaking, that a jur isdiction does not arise here from the mere circumstance that a party has omitted to make a proper defense at law." In Hungerford v. Siegerson, 20 How., 1I, the Supreme Court of the United states say: "Where a party has failed to make a proper defense at law through negligence, equity will not aid him." The defense of the statute of limita tions is a legal defe nse. It was not passed upon by the trial Court, be cause it was uot argued and the Court Was not xisked to decide it. It is not necessary to charge counsel with neg ligeuce in not bringing the matter to the attention of the Court, for counsel for defendant may not have consid- factory to me to incorporate that find ing in this decision: but the majority of the Court deem this unnecessary and inadvisable, and their judgment must prevail. m m Moonlight Concert Tonight. ihe Hawaiian band will cive a moonlight concert this evening at Thomas Square, commencing at the usual hour. The ne.v waltz, "Jolly Fellows." which made a big hit on Monday night, three encores being demanded, is included in the programme. This waltz was brought from the States by Judge Cooper and was presented to Pro fessor Berger. PART I. 1. March -"Belle of New York"... - Clarke '2. Overture "La Dame Blanche" -Boieldieu 3. Cornet Solo "Sea Flower" (by request) Rollinson 4. Selection "The Mikado". Sullivan PART II. o. "Reminiscences of Offenbach" Conradi 6. Waltz "Jolly Fellows" (by re quest) Vollstedt 7. Schottische "Pretty Women" Berger 5. March "Joyce's Post" -Boyer "Hawaii Pouoi." Walking Jackets Steel and iron Ranges, Stoves and Fixtures, E0U8EK2EPIK8 GOODS A!H) KITCHEN STXNSILS. AGATE WAKE IN GKREAT VARIETY. V7bUe, Gray and Silver-p!at-d RUBBER HOSE ! LIFT AND FORCE PUMPS, WATER CLOSETS, METALS, Plumbers' Stock, Water and Soil Pipes, Plumbing, Tin, Copper and Sheet iron Work, CHAMOIS GLOVES, LADIES AND CHILDREN 8 ats aod Bonnets ! TRIMMED AND UNTRIMMED, Dress Goods in preat variety, Rainbow and Embroidered Crape, Feathers and Flowers New Curtain Materials, Silk and Velvet Ribbons, Leatber and Silver Belts, Novelties in Rucliing Chiffon Handkerchiefs and Ties, LACE AND EMBROIDERED FLOUNCING S ! ?.ft?3 Wholesale and Retail ONE DOLLAR, liuilt Like a Cassuis. Admiral Ito, tLe Japanese hero of the day, who is known amoLg Lis devoted sailors as "the Lean Ad miral." -n account of bis extreme tbinne?f, has a duagbter xvbo is one cf JapuB very few blonde beauties. Get one now as they will be on Sale but a few days at this price. J. J. EGAE. DIMOND BLOCK. 95 asd 97 EIKQ ST&EBI. JXJST ARRIVED PER BARK C. T. BRYANT. BABY CARRIAGES of all styles, CARPETS, RUGS, and MATS in the latest patterns, DEioiaseliolci 99 Sewing: Ivlacliiries HandSewing Machines, all with the latest improvement.. Also on hand Westermayer "s Celebrated Cottage Pianos Parlor Organ?. Guitars and other Musical Instruments. GT"For sale by ED. HOFFSCHLAEOER & CO. Kin Street, opposite Castle & Coone FULL LINE OF JAPANESE GOODS Silk and Cotton Dress Goods, SILK, LINEN AND CREPE SHIRTS of complete stock made by Yama toya of Yokohama. Straw Hats, Neckwears, Sashes, Shawls, etc PROVISIONS in general. TEAS OF LATEST IMPORTATION Etc., Etc., Etc., Etc. When you are in need of any line of Japanese Goods, t?ive us first call and save your going all around town. Give the Baby 3819-tf METHODIST Episcopal Church Services BEGINNING ON SUNDAY, OCTO ber 14th, regular morning and evening services will be held by the Methodist Epicopal Church of Hono lulu. REV. II. W. PECK, Pastor, in the Hall, at the corner of Fort and Hotel streets (formerly Annexation Club Rooms). A formal organization of this Church will take place on the first Sundav in November. All Christians not affiliated with any other Evangelical church are invited to unite in this organisation. oSll-lm 6 AND FOR INFANTS 'ri J ! ITii r ram n J INVALIDS. A Perfect Nutriment for growing Children, Convalescents, CONSUMPTIVES, DYSPEPTICS, and the Aced,and In Arnte Illness and all Wasting Diseases. THE Best Food for Hand-fed Infants. Orit BOOK for the Instruction of mothers. "The Care and Feed, inc of Inant," will be naalledre to any address, upon request. OOLIBCR-GOODALC CO, BOSTON, MASS.. U. S. A. ITOHAN, Importer of Japanese Goods 206 Fort St., near Custom House. 3395-tf CENTRAL MARKET! ITJXJANTJ STREET. First-clasa Market in every respect ; be sides carrying a full line of Meats, we make a specialty of Breakfast Sausages, Head Cheese, Pressed Corn Beef. BENSON, SMITH CO., WESTBR00K & GARES, 343 7-q Proprietor. An Open Letter TO TIIE LADIES OF HONOLULU ! sol Agent for tri Hawhi'.Hn Inland. Daily Advertiser, 75 Cents per Month I WILL FOR THE SEXT TWO weeks SELL GOODS AT COST to mafce room for Holiday Goods. gZSm"Tbe Goods are all fresh and of the latest rtylee. M. HANNA, DELIVERED BY CARRIER 1 2811-Im FORT STREET.