The Pacific commercial advertiser. [volume], April 21, 1898, Page 12, Image 12

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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12
Uvivr ul" a jud-c in iiin 1 1 vs to ! tried ei(Yc a jury, tin.
juiliM' w!m-!' lf-i-i iu j!i!u!ii'iit, on lor or decree i- aj))'al(.l
i'rnni iJ.inll not piv-Mr at tin- trial of mh-Ii appeal iK-fure a jury,
out -uch appeal hall In- in order for licarinir at tlie next regular
term of the Circuit Court of The Circuit in which the cause -was
tried in chambers, and the Circuit Judge of ome other Circuit,
who .hall 1m; thereto authorized by the written request of the
Chief Justice, or other Justice of the Supreme Court, shall pre
side at the trial of such appeal: but further provided, that in
case such appeal shall be taken from the decision, judgment,
order or decree of one of the judges of the First Circuit in
chambers, it shall be in order for hearing at the? next regular
term of such circuit, but the Judge whose decision, judgment,
order or decree is appealed from shall not preside at the trial of
such appeal. v
It will be seen that only in the first part of this statute which
provides for appeals from decisions, judgment?, orders or decrees
of Circuit Judges in chambers to the Supreme Court is any
condition made as to time of noting an appeal, paying costs and
filing a bond of fifty dollars for costs to accrue, if defeated.
The rest of the section provides for appeals from decisions, judg
ments, orders or decrees of Circuit Judges in chambers to a
jury of the Circuit Court in term. It also provides that a Circuit
Judge other than the one whoso decision, Sec, is appealed
from shall preside at the trial of such appeal. Ihit it does not
provide for the time and manner in which such appeal shall
be made.
Appeals from a District Magistrate to the Circuit Court at
term with a jury, require a bond of one hundred dollars and by
analogy would require the same amount of security when the
appeal to a jury at term is from a Circuit Judge at chambers.
"Whether a rule of court would supplement this omission we
cannot consider, for there is no such rule existing. The general
understanding seems to have been that payment of costs and fil
ing a bond for $100 was required in all appeals to a jury.
Finding no authority for requiring that appeals from a Circuit
Judge at chambers in probate to a jury of the Circuit Court at
term shall be made by noting the appeal in five days and paying
costs and filing a bond within ten day after the decision, &c,
appealed from, the appellants' exceptions should be sustained and
the appeal allowed and the ease remanded for trial in the Circuit
Court, First Circuit.
IN THE SUPREME COURT OF THE HAWAIIAN
ISLANDS.
)1ai:ch Tkijm, 1S0S.
J E. C. 3IACFAttLAXE r. REPUBLIC OF HAWAII.
Okioixal.
Submitted Lvkcii 21, 1808. Dfx-iukd Amir. 15, 1808.
Judd, C.J., Erkak and "Whiting, JJ.
The Government is not liable for stamp duty upon its deeds.
OPINION OF THE COURT BY FREAR, J.
The plaintiff alleges that he purchased of defendant for
$40,000 the Hawaiian Hotel Premises situated in Honolulu, at
a sale at puhlic auction made in pursuance of an advertisement
which contained nothing as to who should hear the expense of
the deed or the stamp duty thereon; that defendant tendered
him an unstamped deed; that he accepted the same under pro
test; that it is the universal custom and usage of business and
commercial men in these Islands for the vendor to deliver a
stamped deed unless otherwise agreed. The stamp duty in
question amounts to $184, for which plaintiff now sues as money
paid bv him to defendant's use.
The defendant admits the sale and its refusal to pay the
stamp dutv, but denies its liability to pay the fame. It also
admits that it is the usual practice between private parties in
these Islands for the vendor to pay the stamp duty unless other
wise agreed, but alleges that it has been the universal custom
and usage in the case of deeds from the Hawaiian Government
for the vendee to pay the stamp duty unless otherwise agreed.
To this answer the plaintiff demurs.
Much of the argument relates to the law of usages and cus
toms, the plaintiff contending that the usage set up by the
defendant is bad as amounting merely to the habit of an indivi
dual and lacking the generality said to be requisite for a usage;
also, that, even if such usage be good, it being merely the usage
of an individual though that individual be the State, there can
be no presumption that the plaintiff bad knowledge of it and
there is no allegation that he had knowledge of it; and con
sequently that, tlie defendant is in the position of the defendant
in YYumerxley r. Dally, '20 L. J. Exch. 210 (Lawson, Us. &
Cus. 5).
The plaintiff further contends that, aside from the question
of uago, an agreement to sell or convey, that is, by a good deed,
must mean by a stamped deed, that is, a deed stamped by the
vendor, in view of the provision of the stamp act (Civ. L. Sec.
027) tiiat, "Xo instrument requiring to be stamped shall he
recorded by the "Register of Conveyances, or be of any valid it if
in any court of this Tiepublie, unless the same shall be properly
stamped. Provided," Szc.
It will be unnecessary for us to pass upon these contentions,
or upon a number of other questions that, would naturally arise
from them.
Either alleged usage (that set up by the plaintiff or that set
up by the defendant) could go only so far as to determine which
party (vendor or vendee) should pay the stamp duty in case any
stamp dutv should be payable. Xeither could create a liability
to pav what the statute does nor require to be paid. A usage
cannot be of oreater force than a statute to the same effect
would be. Let us therefore assume that the statute expressly
provided that as between vendor and vendee, whenever any
stamp duty should be paid at all, it should be paid by the
vendor, unless otherwise agreed. The question would then
arise whether under such statute any stamp duty would be
payable upon a deed from the Government. In Win Smjar
Co. r fin.Ju, 8 Haw. 201, the question arose whether a labor
contract required a stamp. The statute expressly provided that
the stamp duty upon such contracts should be paid by the em
ployer. The court held that, as the Government was the em
ployer in that case, no stamp was required.
THE PACIFIC COMMERCIAL ADVERTISE!!: HONOLULU, APRIL
The plaintiff contends that the better law is contained in the
dissenting opinion in that ea-e, and -ubmits that if the stamp
dutv is paid by the Government to it-elf n loss will result,
and that it is inadvisable for tlie court to M ttle the question as
between the various departments of the Government instead oi
allowing them to settle it for thein-elves and that often ir i
necessary for one department to pay nionev To another m order
to keep the accounts separate. On the other hand it may be
said that the dissenting opinion referred to was based, on the
view that the Government was not the employer in that ca
quite as much as upon the view that if it were the employer ir
would be liable for the stamp duty; also that there is in general
a presumption that laws are made for the regulation of the right
and affairs of subjects rather than of the Government itself and
consequently that the Government is not bound unless an inten
tion that it should be bound appears, either expressly or by
implication, and that, although this presumption is not strong
and may be easily overcome bv the nature and object or the
language of the act, yet in this case it is rather supported both
bv the nature of the act which is one to provide revenue for tlie
Government and by the language of the act which provides
(Civ. L. Sec. 01 S) that "there shall be due and payable to the
Government,' Arc, and which provides (Sec. 02t) for affixim:
to instruments not liable to duty a stamp denoting such fact.
We say this much for the purpose of showing that, whichever
be the better view, the question is of such a nature that having
once been decided it should not be reopened.
AVo decide merely that the Government is not liable to pay
stamp duty upon its deeds in the absence on an agreement upon
the subject, and consequently that the plaintiff has no valid
claim against, the Government for the stamp duty in question.
AVe do not decide that a vendee is liable for stamp duty on a deed
from the Government. If he is liable, the plaintiff has merely
done his duty. If he is not liable, he has paid the money
unnecessarily. It seems clear in the case of Charters, Royal
Patents, Licenses, Entries and some other documents that duty
is to be paid by the party with whom the Government deals.
Put with respect to deeds, leases and other documents it may be
a question whether the party with whom the Government deals
should pay duty or whether the document is not liable to duty
at all. It may be advisable for the Legislature to make this
clear.
Judgment is ordered for the defendant.
Kinney tC- Ballon for plaintiff.
Deputy Attorney-General 77. P. Hole for the defendant.
I Mnn iinsinf" ri nn
a nuuat rim
(Continued from Page 9.)
ships cargoes we shall have to force
them to do so, just as the Germans
have done, and Ave are better able to
do this than Germany. All we need
is to recognize our own capabilities.
"What material advantages would
result to this country from ,a revival
of American shipping, aside from a
patriotic point of view?"
"Very decided advantages in the way
of increased business in every way.
For instance, in my yard I have now
over a hundred men at work at good
wages, using material 'produced in
this country, which means that more
money ;has been spent for wages in
Pennsylvania, or werever the steel was
made. This number will be increased
as soon as work on the new ship be
gins, and if more could be built, more
money 'that is now spent in Scotland
would be spent in the United States,
and this would mean increased pros
perity for every American producer,
whether he be farmer, manufacturer,
or only a day laborer, for it would
mean an increased demand for all com
modities, with the result of the reten
tention of all the profits from the hand
ling of them in this country. Con
gressmen, in considering this matter,
should remember that wherever ships
are built there their maintenance and
repairs and profits naturally will go.
One 'Of the heaviest drams upon this i
Nation today is the enormous amount
of freight money paid to foreigner
shipowners and spent in foreign lands,
with no resulting benefit to us. Aside
from any question of patriotism, there
is an immense profit, as a Nation, in
encouraging our shipping.
"With this encouragement it would
not be long before we should build
more steel tonnage than ever we built
of wood, and it would not be long
before, from Eastport to the Florida
Keys, our coast would be lined with
thriving yards. It is urged against
us that we could not build with profit.
Today, as I ihave said, our material is
the cheapest in the world. People who
say that the Delaware will monopolize
whatever building we may have, on
the ground that Bath's supremacy in
wooden ship-building was due to our
being in the land of lumbering forget
that for the last fifty years we have
been importing our pine and other
materials from the South. Freights to
Bath would not be a factor in our build
ing, for we have the advantages of
climate, men, prestige and experience.
"All over the land we have tool
making works which are unrivalled,
and which can produce plants for build
ing steel vessels unrivalled in quality
at the lowest cost. There is not a
wooden ship-building yard in Bath
which could not be changed within
sixty days into a modern plant for
making modern steel ships. Why, I
could get the machinery and the mate
rials to build ten ships in this yard (as
easily as I now build one) in less time
than' it would take me to get out the
designs. Only give us the encourage
ment and we will give you the ships
in less time than you can think about
it.
"This hesitancy about recognizing
our own strength is not limited to our
shipping interests. We den't konw our
own strength. We don't need to spend
millions for ships and defences. Our
strength lies in ourselves. Our inher
ent strength is our main strength.
There is not a nation in the world
that would dare attack us. What if
thev did destroy every city on the
tlantic Coast from Eastnort to Key
West and drive us into the interior?
They know that it would take millicns
of dollars, thousands of men and the
very -iiie blood or their nation to keep
us from arising in new strength and
paying "back our debts with heavy in
terest. Look at the experience of Ger
many. See what the war with France
has cost her. It would have saved her
the enormous expense of her great
army if she .had let France kerp Al
sace-L.orraine, and ihad not bad to
keep on the watch against France.
"What we need is confidence. We
haven't got enough of it as a Nation
We can do anything if we try. I know,
for I have personally tried the experi
ment of keeping ahead, and I have
managed to keep the Sewall flag flying
after over seventy years, and I think,
!as a Nation, we can do the same thing.
It was because cf my devotion to and
faith in America that I always gave
preference to an American workman.
and today over 90 per cent, of my
workmen are American citizens."
Arthur Sewall, the present head of
the Sewall shipping-house and ship
yard, is a man of about htty, with a
strong, massive face, penetrating blue
eyes, large, stalwart figure, most
strongly built, a firm friend, an uncom
promising enemy, with all the courage
nf his convictions, and a confidence
and determination that make him in
tolerant of the failure of others. He is
a well-known man for other reasons
than his connection with the old house.
He is prominent in railroad circles as
well as in politics, having been presi
dent of -the Maine Central and other
important roads, and now being a di
rector in many. He is a bank presi
dent, a director and heavy owner in
the Bath Iron Works and the New
England Shipyard, and is one of the
principal man in the famed 'Maine ship-
ping city.
Forty or fifty years ago the Kenne
bec, from Augusta, at the head of na
vigation, to Phippsburg, fifty miles be
llow, was -one continuous shipyard, with
countless firms engaged in the busi
ness. Of all these firms but one re
mains, the Sewalls. for, although there
are vet many yards in Bath, they are
all in different hands. This fact is
due to two causes. First, with few ex
ceptions the Sewalls have built for
themselves, breaking this rule only to
oblige close friends; and second, from
the days of the first chubby little Di
ana, built in 1823, to the great steel
ship now building, this house has led
the country in designs for merchant
vessels. Beginning under William D.
Sewall in 1S23, this house has been
continued, and today has built and
owned the largest sailing merchant
men afloat under our flag. William D.
ms succeeded by his sons un
der the name of E. & A. Sewall, which
firm has since become legally Arthur
Sewall & Co.. with Mr. Sewall at its
head and with the nephew, Samuel b.
Sewall, and his son, William D. Sewall.
associated with him. 1 hese men,
(yTd M Sewall, iMr. Sewall's youngest
con and the present United States Min
ister to Hawaii, the superintendent o,
the yard, and Arthur Sewall's sister,
occupy houses in the "Sewall colony,
just above the Sewall yards.
The Sewalls are of an old and illus
trious family on both sides of the wa
ter The first American Sewall came
here in 1634, and was born in Coven-
; 1 f!l 1 cn hp was a
trv ijngiauu, m ii-i, "
? . 'U rr.iOt Willi AT
vounsr man to go into iutr Sir"
rang man iu s
ne
which New-i-msiana as ul lh.- l-uu'-'u -;Hod.
His sons were Samuel. John.
Stephen and Nicholas, bamuel wa
brave old judge of witchcraft fame.
John was the direct ancestor of the
Sewalls in Maine. Hummer bewa;
the grandfather of the first saipbmldei .
came to Bath from York, wmch was
also in the district of Maine. ,n l.b-.
and purchased the tract ot land on
which even now stand tne hPw.nl
vards. the houses in the "-.ewall co -ony"
and the old origina homes.ead.
CliUW, a
which has been rengiuuy
,,.(,r-v i-io -nrp-pnt day.
In William D. Sewall's time the fami- ,
21, 1S9S.
ly owned the whole of this large tract,
which bare upon it the forest primeval
of the banks of the Kennebec. In 1JS23
William I). Sewall cut down some of
the trees, sawed them in a little mill
run by water-power on his own
grounds, and built the Diana, the first
ship to carry the Sewal; flag. This was
a small brig of 199 tons burden, and
was launched on November 5, 1S23. so
that the seventy-fifth anniversary of
the yard will come next fall, and will
be celebrated, in all probability, by
the completion of the third steel ship
to be built by the Sewalls. which also
will be the third steel ship to be built
in this country. In the seventy-four
years which have intervened since that
date the Sewalls have been building
for thmselves. and they have owned
and some member of the family has
usually captained almost all the ves
sels they have turned out, the total
number of which, to and including the
Dirigo, but not counting the one now
being built, nor the one which will
soon be laid down, is ninety-six. This
includes four barks, seven brigs, sev
enteen schooners and no less than sixty-eight
full-rigged ships.
Every year since the first more or
less tonnaee has been turned out from
that yard. The history of the Sewall
firm is a condensed history .of Ameri
can shipping, and a description of its
ships is a description of the types of
American marine from lS2o to the
present day, with the notable exception
that the Sewall ships have always been
in advance of or better than then-
class. The first ships were small, ana
were engaged in the Cuban trade, from
which, in about 1S30, they began to be
engaged in the cotton trade to English
ports. Cotton is a cargo with bulk,
but without proportional weight, so
the Sewalls .began to build their ships
larger, with the greatest possible cargo
capacity, with full lines, bluff bows,
square sterns and not much speed.
The discovery -of ge.d in 1S4! led to tne
profitable San Francisco trade of the
fifties, which called for speed above all
else. So the Sewalls turned to build-
ing tast cupper snips wiui buaip mir
and heavy spread of canvas ships that
for speed and beauty have never been
duplicated. But when the rauroaus
crossed the continent in the latter six
ties, the sorely depleted shipping left
after the war was useless tor tast
freight nurnoses. and s the modern
medium model came into vogue, ships
with moderate speed and good earn
ing capacity, engaging in the Pacific-
Atlantic trade, sailing from New York
and Philadelphia to Asia with oil, to
San Francisco with miscellaneous car
go, and thence with grain to European
ports, and home again in ballast or
with nominal freight. To this class
the three big wooden ships, the Dirigo
and the two new steel snips, belong.
Tf t,. So-aii hn his way. yet more
will follow.
ga
HERE'S A HINT.
German System for the Destruct
ion of Kodents.
The military provision cats which
have hitherto been maintained by the
German Government at its provision
stores and magazines, for the destruc
tion of mice, at an annual cost per cat
of IS marks, are to be dismissed from
the service. It has been found by ex-
Trrvont oars n Fn rone an paper, that
more mice and rats can be killed by the
Loeffler bacillus system of inoculating
at n mnrli smaller cost. By the
Ul 1 VV. r -
Loeffler system (which has been effect
uaaly tried both on a large and small
scale in agriculture and in various pub
lic departments) solely by infecting
some food placed for mice and rats
with a culture of a certain bacillus,
harmless to everything but these ro
dents, the latter, soon after eating of it,
die, and before doing so spread the in
fection among the other mice.
PRINTERS ARE STILX. OUT.
Eacli Side Claims Victory Neither
Wants to Yield.
The Chronicle says: The striking
printers gathered about their head
quarters yesterday in small knots to
discuss the situation, although nothing
new developed during the day. Presi
dent Hawkes of the Typographical
Union said that overtures had been
made to the striking printers by their
bosses, w-ho wan: the men to return to
their work, and they were eager for
some sort of a compromise, but the
men insisted upon the terms demanded.
Inquiry among numerous employers
failed to locate the source whence the
proposition for a compromise emanat
ed. Appearances indicated that the
men will gradually return to the shops
and all differences will be settled with
in a few days.
Civil Snlt Airalnt Zola.
PARIS. April S. The officers com
posing the court martial which ac
quitted Count Esterhszy met today and
decided to begin civil actions for libel
against Emile Zola and M. Perrieux,
publisher of the Aurore. who were re
centlv sentenced to imprisonment and
who were also fined for making charges
which were not sustained against the
i nt the court martial
Fifty years ago the double wedding
of M and Mrs. Aoner v .
ot Mrs. C. F. Moore took place at
;i ;V,ineton. Mass. Both couples have
celebrated the gohKn anniversary
3at the interesting event. In neither
ily has there been a death in the
half centurv, though Mr. and Mrs.
Moore have two sons, three daughters
and Several grandchildren, while Mr.
nd Mrs. Witt have about as many.
lOKEKiN i:WS NOTES.
CHICAGO, April 0. The remains of
Miss Francis K. Willard were cremated
today.
COPENHAGEN, April S. The SOth
birthday of King Christian IX of Don
mark was celebrated today, the day
being Good Friday.
LONDON, April 'J The Marquis of
Exeter (Brownlow Henry George Civil)
died this morning as the result of a
bieyling arcident.
NEW YORK, April S. Henry Staf
ford Little, formerly Clerk in Chancory
i moooo to
in rsew jersey, ins -."
Princeton University. This gift will
i ... -k til A
complete the quaurangie uu
campus.
NEW YORK, April 7. Gold is being
. . 4 1
shipped from Cuba to tins cu. -Already
$600,000 has been received and
$400,000 more was engaged for ship
ment. This gold is shipped from Ha
vana because war is imminent.
MADRID, April 10. Dispatches from
Manila say that the insurgent y-v
tured Ceba, but were expeueu laiei u.
. M "
the Spanish garrison witn an iasiu
lass of 500. The Spanish losses are de
scribed as insignificant.
LANSING, (Mich.). April S.-Gover-
nor Pingree's bill for increasing ti
taxes on railroads failed to pass the
Senate today by two votes. It baa
passed the House by an almost unani
mous vote.
WASHINGTON, April 7. Senator
Morgan made a speech today in which
he said he was willing to make a de
claration of war against Spain because
of the blowing up of the Maine. He
believed the cause a just one.
LONDON, April S The Peking cor
respondent of the Times says: The
extension of British territory at Kau
lung, opposite Kongkong, will follow
immediately after the French occupa
tion of the new coaling station at
Kwang-chau-wan.
CHICAGO, April 0. Jockey Tod
Sloan arrived in Chicago today from
California on bJs way East. Sloan has
agreed to give Featherstone & Bromley,
the Chicago racing men, the second call
for his services. He leaves for New
York today.
OMAHA, (Neb.), April S The Unit
ed States Government has filed a peti
tion for a deficiency judgment to the
amount of $C,5SS,900 against the Union
Pacific Railroad. The suit grows out
of the isale of the Kansas Pacific. The
matter is set for hearing before Judge
Sa'nford at St. Paul on April lGth.
WASHINGTON, April S. The Am
erican colony and Consul Hanna have
fled from San Juan, Porto Rico, to the
Danish West Indian Island, St.
Thomas. They spent last night on
board the British steamer Virgi'nus.
Excitement is intense, and an outbreak
against foreigners is momentarily ex
pected. LONDON, April S. According to a
special dispatch from Shanghai advices
have been receive-d there from Shun-
king, province of Se-Chuen, that the
region around the city is in a state of
open rebellion. The local authorities
are powerless to arrest the men who
recently murdered the American mis
sionary, and a mob is sacking a French
mission in the neighborhood.
LONDON, April 9. The Peking cor
respondent of the Times says: China
has voluntarily declared Woo-sung a
treaty port and given England formal
notice of a desire 'for a revision of the
tariff in accordance with Article 27 of
the treaty of Tien-tsin.
About 150 Japanese who arrived in
Tacoma on April 0th are bound for the
Klondike.
SACRAMENTO, (Cal.), April 0.
The Pattern storehouse of the Southern
Pacific Railroad Company, a large
three-story building, was entirely gut
ted by fire last 'night and the loss is
anywhere from $200,000 to $1,000,000.
There were at least $40,000 patterns in
the building and were all consumed.
It is estimated that it will take 20 men
23 years to duplicate the patterns de
stroyed. OLD POINT COMFORT, (Va.), April
9. The hurry and bustle of war pre
paration was interrupted for a short
time today, when, in the little chapel of
Fort Monroe, navy and army officers
attended the wedding of Miss Elizabeth
McCall, the daughter of Commander
McCall of the Marblehead, and Lieut.
William G. Miller of the United State
Navy, who has just returned from the
Asiatic squadron.
WASHINGTON, April 11. In the di
vorce proceedings of Mrs. Frances
Hodgson Burnett, the authoress,
against Dr. S. M. Burnett of this city,
an order was signed today for an ex
aminer to take testimony, Dr. Burnett
having made no answer to the charges
filed. ;
j WASHINGTON, April 11
i
The Post
! Office Department today awarded to p.
, C. Richardson of Seattle, Wash., the
j contract for carrying mail between St.
Michael and Weare, Alaska, a distance
of 900 miles. The contract, which was
let for $23,000 per annum, is for a
period of four years, from July l, 1S98.