Newspaper Page Text
THE PACIFIC COMMERCIAL ADVEIITISEK : HONOLULU, MAY 7, 1S9S.
tlie Mvcvilow f water from tlio lt-f ct ve --, the luty to re pair wliieh was ujMn the defendant anel ie i n -poti-ilde ir the injury .rc;i-i nel. ill the e;i-e limilllv 1 lied u ,v the lower eoiul. Moon.: I'. (Jocdel, ol- X. V. .".:;:, tin- facts weiv far lifiVn-m, from the present one, and this may he -aid of the oilier ea-es cited by defendant's counsel. "We. liold as a matter of law that the. failure of plaintiff to shut off the water hy the basement cock was not contributory negli gence. We reverse the judgment excepted to and order a new trial. J. A. Magoon and . . S Mi man for plaintiff. (iio. A. Davis for defendant. IN. THE SUPKKME COUJtT OF TIIE HAWAIIAN ISLANDS. March Ti:i:m, 1S98. AY. W. WRIGHT r. A. M. JiROWX. Al'I'KAL l'HO.M DlSTIMCT CoUUT OF HoXOLL'LU. Submitted Maj;ch i)0, LS'JS. Dix.iDKD ArniL 20, 1S0S. .Tl'DI), C.J., FlIEAlJ AND AVlIITJXG, JJ. Sec. 1430, Civ. L., which requires an appellant to "deposit a sufficient bond," &c, does not require the bond to be signed by the appellant himself. Sec. 1459, Civ. L., which provides that no appeal shall be dismissed for insufficiency of the appeal bond unless upon neglect to comply with an order of a Judge directing an amendment, would apply where the bond was not signed by the appellant himself, if his signature were necesary. Sec. 1853, Civ. L., which provides that unrecorded chattel mortgages shall not "be binding to the detriment of third parties, or conclu sive upon their rights and interests" does not protect mere strangers or trespassers. OPINION OP THE COURT BY FREAR, J. This is replevin for a wagon, horse and harness valued at $200. The case comes here on ajipeal on points of law from the District Court of Honolulu, where judgment was rendered for the plaintiff. A preliminary question was raised hy a motion to dismiss the appeal on the ground that the defendant had. not executed the appeal hond. Two other persons had executed it. The statute (Civ. L. Sec. 1430) Acquires the appellant to "deposit a sufficient bond," &c. The appellant did deposit a sufficient bond. The statute does not require him to sign it himself. See Drouilhat r. Botner, 13 Or. 403; Lin (hat r. Price, 33 Tex. 2S0; Johnson r. Johnson, 31 Oh. St. 134; Dahl. v. Tibialis, 5 "Wash. 201. Even if it. were necessary for the appellant" to join in the bond, the failure to do so could not be taken advantage of on a motion to dismiss the appeal now; for (Civ. L. Sec. 1459) "No bill of exceptions or appeal shall be dismissed for any in formality or insufficiency of any bond, unless upon neglect of the party filing such bond to comply with an order of a Judge directing an amendment of such bond after a reasonable time of not less than 24 hours, which shall be given for such purpose." Xo such order has been made in this case. See Dahl v. Tibialis, supra, and Town r. Hnydcr, 78 111. 510. Xow as to the merits. The evidence shows that plaintiff owned these chattels; that he sold them to one Cross who paid $25 on account; that Cross executed a bill of sale of them back to plaintiff in consideration of $15S due for the wagon and for moneys advanced by plaintiff in excess of wages. There 'were three witnesses plaintiff, his son and Cross. These all testify that the understanding was that the title was to remain in plain tiff until the chattels were paid for, Cross meanwhile to have only the possession. Cross says also that he gave the bill of sale as security because he was not a well man. Defendant put on no evidence. Defendant contends that the bill of sale from Cross to plain tiff, although absolute on its face, is shown by the evidence to have been intended as a mortgage and is therefore void as to third parties because not recorded. Civ. L., Sec. 1S53; IJUis v. White, 3 I law. 205; Lcnctam r. Akana, ! Haw. 533;. Black v. Castle, 7 Haw. 273; Jones, Ch. Mtgs. Sec. 275. He contends also that the evidence as a whole shows that the sale from plain tiff to Cross, was in fact an absolute sale, not a conditional sale as testified to; or, if it were a conditional sale as between the parties yet as to third parties the condition that the title should remain in the plaintiff until payment, should be considered as made merely as security and therefore as in the nature of a mortgage within the policy of the statute and therefore void. 3 Ency. of Law, 437 note; Fosdick r. Sehall, 09 U. S. 235. Let us assume that these contentions are correct. The que? tion would still remain whether the defendant is a ''third party within the meaning of the statute. It is not disputed that the plaintiff would be entitled to possession but for the fact that the alleged mortgage or mortgages were unrecorded. It does not appear under what claim or in what capacity the defendant held the chattels. ITe was and is the Marshal and we understand out side the record that he held the goods on execution against the property of Cross, but for the purposes of this case he is to be considered a mere stranger or trespasser. It is true the plain tiff must recover on the strength of his own title and not. on the weakness of the defendant's title. But the plaintiff has shown title and the defendant has shown no title. The question is merely whether the plaintiff's title must be considered void as to the defendant under the statute because the mortgage was un recorded, in other words, is a mere stranger or trespasser a "third part'" within the meaning of the statute? The statute provides that chattel mortgages shall be recorded, Arc, "in default of which no such instrument shall be binding to the detriment of third parties, or conclusive upon their rights and interests." Civ. L., Sec. 1S53. It is evident that this statute was enacted for the protection of persons who had "rights" or "interests" in the property and not for the benefit of mere strangers or tres passers. Pratt r. Harlow, in Gray 370: Johnson r. Jeffries, 30 Mo. 423; see also Fosdick v. Sehall, supra. The judgment appealed from is affirmed. J. T. Dc Bolt or plaintiff, L. A. Dickey for defendant. I AUTHORI! 1 ACT 22. An A;t t Ami:ni Suctions 75 and 70 or Chatti'i: 51 or Si:s- sion Laws or 1!H Ki:i,atin; to Tan Ai'1i:ai. 'oi kt. Be it enacted by the Legislature of the Republic of Hawaii: Section 1. That Section 75 of Chapter 51 of tin Session Laws of 1!m; he and the same is herebv amended to read as follows: "Section 75. Three suitable persons shall be appointed by the President of the Uepublic of Hawaii, for each Judicial Circuit, to hold, office for one year, who shall respectively constitute Courts of Appeal to hear and determine all appeals and objections duly taken under this Act, in their several circuits. Provided, however, that no assessor or his deputy shall be appointed to sit as a member of any such court of appeal. Section 2. That Section 70 of Act 51 of the Session Laws of 1S0G be and the same is hereby amended so as to read as follows: "Section 70. The said Court shall hold sittings in each Judicial Circuits between the lirst day of August and the 20th day of August in each year, in each Judicial Circuit in which the property is situated, on the value of which an appeal may have been taken, at such times as the presiding officers thereof may appoint, and may adjourn from time to time as may be necessarv. Section 3. This Act shall take eil'ect from and after its publication. We hereby certify that the foregoing Hill, having previously passed the Legislature, was presented to the President for his signature and approval on the 12th day of April, 1S08, and that on the 25th day of April, 189$, more than ten days having elapsed since such presentation, the President of the Kepublic of Hawaii returned the same to the Legislature, neither signed nor vetoed, and that the Legislature has not adjourned sine die prior to the expiration of such ten days from the time of such presentation. W. C. WILDEK, President of Senate. Attest: (JEOKGE MAXSOX, Clerk of Senate. JOHN LOT KAULUKOU, Speaker House of Representatives. Attest: JAMES X. K. KEOLA, Clerk of House of Representatives. ACT 23. An Act Relating to Circuit Judges, and Providing for the Appointment of a Person to Perform the Duties of the Office During the Absence or Temporary Disabil ity of a Circuit Judge, and Amending- Sections :J0 and .'54 of Chapter 72 of the Laws of 1S02, Entitled "An Act to Reorganize the Judiciary Department." Be it enacted by the Legislature of the Republic of Hawaii: Section 1. In case of the temporary disability or absence from the country of any Cirucit Judge, some other person may be appointed by the President to perform the duties of the office while such disability or absence continues. The commission of every such person so appointed may be revoked at anv time bv the President at his discretion. Section 2. The provisions of this Act shall not be con strued to conflict with the provisions of Section 45 of Chapter 57 of the Laws of 1802, entitled ''An Act to reorganize the Judiciary Department," by which the Judge of some 'other Circuit may preside at the trial of a. cause or term of the Circuit Court when so requested by the Chief Justice. Section 3. This Act shall take effect from j the date of its publication. Approved this 3d day of May, A. D. 180S. SAXFOR1) P. DOLE, President of the Republic of Hawaii. ACT 24. An Act Relating to the Penal Code and Penal Laws of the Republic of Hawaii. Be it Enacted ly the Legislature of the Republic of Hawaii: Section 1. It shall be sufficient in any charge or indict ment and in any judicial proceeding to cite or refer to any section or chapter of the compilation of the Penal Statutes made by Sydney Miller Ballon, Esquire, of the Hawaiian Bar and known as "The Penal Laws of the Hawaiian Islands, 1807," as "Section (or Chapter) of the Penal Laws," without reference to the Section or Chapter of the Penal Code, Session Laws or Statutes which may be the original enactment of the Section of the Penal Laws cited, in all cases where the section or chapter so cited or referred to correctly sets forth and recites the original enactment. Section 2. Nothing in this Act shall be construed to re peal or modify any existing law or statute defining an offense or imposing a punishment or otherwise which may not be contained in said compilation. Section :. This Act shall take effect from and after the date of its publication. Approved this 3d dav of Mav, A. D. 1808. SAXFORD B. DOLE, President of the Republic of Hawaii. NORTH KONA BOARDING HOUSE AND SANITARIUM. Situate on the beach at Kailua, N. Kona. Careful .treatment for all medical and surgical cases. Board and Lodging at reasonable rates accorded to invalids and visitors. Associated with the beach house is a mountain residence (1,500 feet ele vation) where visitors may have the benefit of a change of atmosphere. Terms, etc., on application. Medical attendant. MRS. MARY ATCHERLEY, Manageress. DR. ATCHERLEY, M.R.C.S., L.R.C.P. BICYCLE OIL, faffed lt&!WJ$S 8tet0 AT TIIE GAZETTE OFFICE. It is a well known fact among me chanics in these Islands, that their light lubricating Oils are utterly use less here. They dry up or run out of the bearings: in fact you must use a far heavier oil here than in colder coun tries. Oil bottled in the United States for sewing machine use is of no use to lubricate a Bicycle. Bicycles here, do not, as a rule, get enough lubricant. Of twenty Bicycles overhauled on Monday in The Honolulu Cyclery, 231 KING ST., Sixteen of them were absolutely dry. They needed. Bailey's Best Bicycle Oil Put up in tin cans, 25 cents each, which is just as cheap as light thin oil. o the PHD! LIFE AND FIRE I II AGENTS FOR in f iUlUliU il OF BOSTON. Eli Fife insuronce Coin OF HARTFORD. HevMdJH Lite insuronce Go PABST BREWING CO.'s FAMOUS MILWAUKEE t BREWER X CO., I'D. Queen Street, : : Honolulu, II. L AGENTS FOR Hawaiian Agricultural Company, Ono mea Sugar Company, Honomu Sugar Company, Wailuku Sugar Company, Waihee Sugar Company, Makee Su gar Company, Haleakala Ranch Com pany, Kapapala Ranch. Planters' Line, San Francisco Packets, Charles Brewer & Co.'s Line of Bos ton Packets. . Agents Boston Board of Underwrit ers. Agents for Philadelphia Board of Underwriters. LIST OF OFFICERS: P. C. Jones, President; George H. Robertson, Manager; E. F. Bishop, Treasurer and Secretary; Col. W. F. Allen, Auditor; C. M. Cooke, H. Water house, G. R. Carter, Directors. BEER IS NOT offered to the public in competition with cheap brands. It Is Absolutely the BestI And for purity, it stands un challenged, and is sold at fair market rates -BT- t ra IS Llmltod, ( i go; WM. G. IRWIN & CO., LIMITED. Wm. G. Irwin. .President and Manager Claus Spreckels Vice-President vv. M. Giffard. Secretary and Treasurer Theo. C. Porter. . Auditor SUGAR FACTORS AND COMMISSION AGENTS AGENTS FOR THE Oceanic Steamship Company Of San Francisco, CaL II 10 inn xnppiP IIIU UUUUI I LIMITED. Subscribed Capital Yen 12,000,000 Paid Up Capital " 7,500,000 Reserve Fund " 6,464,000 Sole Agents. 00 When other hoofs and other ahoea Have not been faring well, And by the language that you uu It's plain there's been a sell. In such a scene, v?e Ask you not to worry. But remember the KING STREET SHOEING SHOP OF T. B. MURRAY Every mule or horse shoe we put on Is In iteslf a perfect gem. To get the like, ring up or send your critter to the shop of T. B. M. HEAD OFFICE: YOKOHAMA. BRANCHES AND AGENCIES: Kobe, London, Lyons, New York, San Francisco, Shanghai, Bombay, Hong Kong. Transacts a General Banking and Exchange Business. Agency Yokohama Specie Bank: New Republic Bldg., : Honolulu, H. I Claus Sfbkcxels. Wjc G. Irwin CLADS SPRECKELS & CO., Bankers, HONOLULU - - H.I. dAN Francisco agents The Nevada BanV of San Francisco. DRAW EXCHANGE ON San Francisco The Nevada Bank of Sat. Francisco. London The Union Bank of London (Ltd.). tfTew York American Exchange National Bank. Chlcagc Merchants National Bank. Paris Comptoir National d'Escompte de Paris. Berlin Dresdner Bank. Horurkoncr and Yokohama Hongkong and Shanghai Banking Corporation. New Zealand and Australia Bank ol New Zealand. Victoria and Vancouver Bank of Brit ish North America. iroosacia General BanKina 5 Excnanae Business Deposits Received. Loans made on Approved Security. Commercial and Traveler!' Credit Issued. Bills of Exchange Bought and Sold. Collections" Promptly Accounted For -THE- 111 Mil II) Will Collect your Accounts for you in a Prompt and Sat isfactory Manner. FOUR ACTIVE COLLECTORS are continually on the go, and others vriU be added with the increase of business. Returns made on all bills collected the day after collection. Special rates for special classes ol bills. Ring up telephone No. 256, or call around at 210 King street, for further information. REMOVAL NOTICE. JOSE de ESPIRIT0 SANTOS Manufacturer of GUITARS, UKULELES, AND TARO- PATCH FIDDLES, Has removed to King St., near Punchbowl St. We employ first class mech&nles only. "Prices to suit the times." Telephone 692. Sausage Can't Be Very Good if its price has to be "cut" to sell it Our Sausage isn't "high" but it's easy to see why it sells more than others. It's so much richer, more deli cious, that's why. You won't (mind (paying our prices for G ARES' SAUSAGB after you've once eaten some. Central Meat Market. 214 'NUUANU ST. HUSTACE & CO., . DEALERS IN Wood and Coal ALSO White and Black Sand Which we will sell at the very lowest market rates. Telephone No. 414. Robert Lewere. F. J. Lowrey. C. M. Cooke LEWERS & COOKE. Importers and Dealers In Lumber and Building Materials. Office, 414 Fort St. LEWIS & CO., vvholesQle and Mi Grocers 111 FORT STREET. Telephone, 240. : : P. O. Box, XS HONOLULU IRON WORKS CO. Steam Engines, BOILERS, SUGAR MILLS, COOLERS, 15UASS AND LEAD CASTINGS. And machinery of every description maae to order. Particular attention paid to ship's blacksmithlng. Job work executed on the shortest notice. WING WO TAI 8c CO. 214 NUUANU STREET. Ivory, Lacquer, Silver and Crockery wares, screens, vases, Rattan Chairs, Crepes, Silks, Cigars, Etc., Etc. Fresh Whole Wheat, In 10 and 50 lb. Sacks. Graham Flour, In 10 lb. Sacks. FEED OF ALL KINDS. WASHINGTON FEED CO COR. FORT & QUEEN STS. Telephone 422. -3 J w