The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1881-06-04

1le pldllLlu ClaluS III luis dGtISu HUN Al
defendant, as administrator OF Charles hanalna,
eight hundred dollars for so much money had
and received BY the said kanalna In his lifetime,
for rents of certain property IN Honolulu alleged
to be the property OF the Hawaiian Government.
This complaint was filed 18th of January, 1881,
during the progress 0! the last term and 1t sets
forth that the defendant was appointed admins
traitor of the estate of Charles Kanaina, on the
5th day of April 1877.
The defendant answers that, Immediately on
his appointment, he caused the advertisement to
be made, IN accordance with the Statute, calling
upon all creditors Of the deceased 20 present their
claims within six months from the date OF the
publication of that notice, or the same would be
forever barred, and that the plaintiff presented no
claim within such six months and therefore the
defendant submits that the plaintiff 5 claim Is
barred. To which the plaintiff replied that no
Statute of limitations would have effect against
the Government.
The Chief Justice who held the term, said that,
for the time being, he should hold that the
Government was barred by the Statute in ques-
ton, in like manner as all other creditors and
therefore the plaintiff alleged exceptions and they
have been certified TO this Court.
Sec. l of an act to limit the time within which
the claims Of creditors on the estate of deceased
persons shall be presented, page 81 Session laws
of 1868, euacts that. - Ii such claims be not
presented within six months from the
first publication of the notice, or within six
months from the day they fall due, they shall be
forever barred and the executor or administrator
shall not be authorized ID pay them"
The case of the United States VS. Samuel Hoare,
administrator of the estate of Colonel futile, 2
Mason 80, is quite parallel to this case. The
Statutes of Massachusetts, at that time limited
suits against executors and administrators to
four years after the acceptance of the trust,
where our Statute limits it to six months after
the notice. The action was brought after the
expiration of the four years as this is brought
after the expiration OF the six months. The
Massachusetts action vas for money had and
received, as is this.
Judge Story, in announcing the opinion of the
Court, says:
Now, | think. it may be laid down as Il safe
proposition, that DO Statute of limitations has
been held to apply to actions brought by the
Crown, unless there has been an express pro Tis-
ion including it. For it is said that where a
Statute is general, aud thereby any prerogative,
right, title, or interest is Invested or taken from
the King, in such case the King shall not be
bound, unless the Statute Is made by express
words to extend to him." And again, - 1t is
clear from the authorities, that the rule, except
lug the crown from the operation of the Statutes
of limitation, has for several centuries universally
prevailed-and the true reason is to be found in
the great public policy of preserving the public
rights, revenues and property from injury and
loss by the negligence of publie officers"
And again, g We find accordingly in our own
State (Massachusetts) the doctrine is well settled,
that no laches can be imputed to the Govern
ment, and against it no time runs SO as to bar it's
rights. So that it is clear that the Statutes Of
limitations pleaded in this case would be no bar
to a suit brought to enforce any right of the
state in it's own courts. That learned Judge con-
tinues. "Where the Government is not expressly,
or by necessary implication included, it ought 10
be clear from the nature of the mischiefs to be
redressed, or the language used, that the Govern
ment itself was in the contemplation of the
legislature, before a court of law would be
authorized to put such en- Interpretation upon
any statute" In general, acts OF the Ieglsla-
and rights of citizens and in nus nus .no | ,Lo
reasoning, applicable to them, applies with very
different and often contrary force to the Govern
ment itself" "It appears to me. therefore m
be a safe rule founded in the principles of the
common law, that the general words Off Statute
ought not to include the Government. or affect
Its rights, unless that construction be clear and
indisputable upon the text of the act" In the
case of the United States VS. Thompson. % United
States, 49S October 1879 the Court remarked.
. The rule OF nuAuna tenpuS OccurH reQi has
existed as an element of the English law from a
very early period. 1t is discussed in Bracton
and has come down to the present time. - '.Limi-
tations derive their authority from Statutes. The
King was held never to be included unless
expressly named. No laches was imputabIe to
him, these exemptions were founded upon consi-
deratiOns Of public policy"
This action was for money belonging to the
United States alleged to have been received by
the defendant prior to March Both, 1865 which
it was alleged he had converted to his own use.
The case of People VS. Gilbert Is johnson 227, is
much in point.
This is the first action which has been brought
by the Government of this country, for the
recovery of personal property, in which there has
been occasion to plead a Statute of limitation as
a bar, though in the case of a. Kahoomana VS.
the Minister of the Interior (3rd Hawaiian, 635)
it was held that the Statute of limitations of real
actions does not run against the Government.
Some excellent reasons have been adduced before
us, why we should adopt the rule that the Statute
in question shall be Of universal application
against the Government as against every one else.
These reasons have had the greatest consideration
by us, and we may say have had great weight in
our minds. But we think that more injury will
be done by setting up the new rule than by
adhering to that which mas prevailed for centuries
IN the countries from which, for the most part,
we derive our jurisprudence. If the legislature
shall be of the opinion that these Statutes ought
to apply with equal force to the Government as
to citizens, they can easily modify the Statutes SO
as to make the point indIsputable.
We therefore adjudge that the Statute of
Limitations cited by the defendant is no bar to
calendar Of the next term.
CHAs. G. HARRIS,
a. FRANCIS JUDD,
LAWRENCE MCCULLY.
w. o. Smith, Deputy Attorney General for
plaintiff. a. S. Hartwell for defendant.
Honolulu March 3rd, 1881.