Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1855-03-24
Gbe polnuesiau.
SUPREME COURT.-Ix ADMIRALTY.
Decision of Chief Justice Lee.

j. d. BLAIR, Esqr., for KashOw and Hunter
Chief Justice Lee in delivering his opinion sta
ted as follows This is an action brought to re-
cover possession of the American schooner, Lady
Jane.
The libellant sets forth in his petition thaS on
1.-THE 24th day of Sept. last, Mary Kashow of San
Francisco, California. obtained decree of divorce
against Israel Kashow, in the District Court of the
fourth Judicial District of California, and also
further decree that there should be division Of the
common property of the said Israel and Mary Ka-
show that on or about the 18th day of December
last, the said lbellant was duly appointed receiver
of all the personal property belonging to the said
Israel kashOw that on or about the 18th day of
December 1854, he took into his possession and
custody the schooner Lady Jane, the property of
the said Israel Kashow, then lying in the port of
San Francisco and held the same subject to the or
der Of said court The ibellant further alleges that
as receiver aforesaid, he appointed d. p. Penhal-
low, master Of the sail vessel with instructions to
take her to Honolulu, and on his arrival to deliver
her into the custody of R. COady Co.. his duly
stituted Agents that on the said 18th day of De-
cember the said Penhallow having accepted the COM
mand of the vessel, she sailed with passengers and
cargo for Honolulu, where she arrived on the 29th
day of December 1854, and was delivered into the
possession and custody of II. COady L Co., Agents
of the libellant, who appointed William Lee Hays
master of the vessel, he having been duly author
lied by the libellant to take the command of her,
on her arrival at Honolulu and that the said Hays
was duly entered on the register of the vessel as
her master, by the American Consul at this port.
And he further alleges that the said Hays proceed
ed on board and took command Of the vessel and
that subsequently, the American Consul, at the re-
lquest of Israel Kashow, also entered the name Of
Charles III. T. Hunter the register of the vessel,
as master thereof when tile said Hunter also pro-
ceeded on board of the vessel and assumed command
of the same that both Hunter and Hays claim to
be in possession Of the vessel and further alleging
that the entire possession and control of the vessel
is wrongfully withheld from him, prays this court
to decree the possession of the schooner to be dev
cred to him, and also for damages resulting to him
from such wrongful interference and detention.
The claimant KashOw answers that he has no
knowledge of the decree Of divorce set forth in the
bellants petition, and that the vessel is register
ed in the name of one Elisha BloOmer, of New York.
whom he believes to be the legal owner of the same
that he hired the vessel Of the said BlOomer for the
sum of three hundred dollars per annum, and, as
such hirer is legally entitled to the possession of
the same. He further alleges that he has no knowl
edge of the appointment of q. B. Post the libellant
receiver aforesaid.
The first question for the court to determine is,
who is the owner of this vessel Is it Israel IA
show, or Elisha Bloomerl 1t is contended by Ka-
show that the register is the legal and proper evil
denee of ownership, behind which We cannot go,
and that by the said register, BOOmer appears to
be the owner and must be considered as such. Now,
what is the law on this subject 1t appears to be
a well established doctrine that the registry of
ship is entitled to very little weight evidence of
Ownership, and SO far from being conclusive, Is
merely prin1 tdcle evidence Professor Greenleaf,
in his valuable treatise on Evidence, q Green
leafs Evid. 3494) says, 'Where the question of
ownership is merely Incidental, the register alone
has been deemed sufficient prinnq fdcie evidence
But in favor of the person claiming as owner it is
no evidence at all, being nothing more than his own
declaration
(See also 8 Kent's Commentaries, l49 and $50.
Weston vs.. Penniman, l Mason, 500 and 3lS. Tink
Ter VS.. Walpole, IA East 226)
A vessel may be, and often is, registered in the
name of person who has not farthing's inter
est in her. while the equitable title and real own
ership is in another person, and where there is
proof Of the ownership being in some other party,
the register unless auxiliary proof is brought in
aid of the same, will avail but little. Now, mas
such auxiliary proof been furnished in this case
Most clearly not. There is not n particle of evi-
dence this point aside frcm the naked register,
and is it reasonable to suppose, that If BOOmer
was the real, bona fde owner of this valuable yes
sell he would have hired her to KashOw for the
small sum of three hundred dollars per annum
1t appears by the evidence of the master who sailed
the ship from New York TO Honolulu, and others,
that Kashow frequently declared himself to be the
owner of the schooner Lady Jane and that he
has acted as such from the time he built her up to
December last when this dispute arose 1t further
appears that while he invariably represented him.
self as the owner of the Lady Jane, he repeatedly
stated that he had caused her to be registered in
the name Of Elisha BlOomer, because he was afraid
if she stood in his own name she would be taken
away from him at the suit of Mary Kashow-
Leaving the California evidence out of the cues
ton, am convinced that Kashow is the real, and
equitable owner Of the schooner Lady Jane.
We now come to the question, whether Mary
KashCw has obtained decree of divorce against
Israel Kashow, and also decree for the division
of their common property, and finally whether the
libellant was appointed receiver of said property
had this vessel in his possession such, and sent
her to the Islands while in his custody. And here /
let us pause a moment to consider certain Obiec-
tons interpOscd by the learned counsel against re-
ceiving the evidence upon which the ibelant seeks
to establish the affirmative of these questions 1t |
has been urged with much force, and argued with |
unusual legal acumen and ability by the learned /
counsel, that the depositions and other evidence |
taken in California have not been taken in the /
manner intended by the Court or in compliance |
with the letters rOgatory issued in this cause 1t /
is contended that, instead of being taken by an Ad
miralty Court, as directed in the letters, it was
taken before commissioner, and that 1t does not /
appear that said commissioner acted by the or
der or under the direction of any Court of Ad-
mraty. To these objections it is answered by the /
learned counsel for the hbellant that these excep
tions if taken at ALL should have been taken before
the evidence was read to the Court. and that not
having been so taken, the counsel for the claimant
has waived his right to interpose them. Were we
confne the parties to the technical rules of prac
tice, we should think the objections well taken,
the counsel failed to interpose
them until after the reading of the depositiOns.-
But we do not, and ought not, 70 stand upon
such rules when there is no evidence of fraud or
wrong intention, in the manner of executing the Z
letters rogatory, and taking the evidence under