The Pacific commercial advertiser. [volume], May 07, 1898, Image 6

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

Image provided by: University of Hawaii at Manoa; Honolulu, HI

                
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