The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-08-12
bad no right in good conscience to retain,

II may De rec0Yereu DICK IN action of IN.
debilatus assumpsit whether such mistake
be one of fact or Of law; and this we insisi
may be done upon. the principle of chris
tan morals and sthe common law" This
principle was reafirmed in StedloeH VS.
anderson 81 Conn. 139.
j think it is clear from the above cases
that where reasons exist in equity and
good conscience why the relief should be
granted, the fact that the mistake was one
of law should not prevent the granting OF
the relief
From 2 Pomeroy Sec $40, 1 take the
following: Courts have felt the impera-
tive demands of Justice and have aided the
mistaken parties, although they have often
assigned as the reason for doing so. some
negotiable conduct of the other party
which they have inferred or assumed.
The real reason for this judicial tendency
is obvious, although it has not always been
assigned. A private legal right, title,
estate, interest, duty or liability is always
very complex conception. 1t necessary
depends SO much upon conditions of fact,
that it is difficult, if not impossible, to
form distinct notion of a legal right, in
terest or liability, separated from the
facts in which it is involved and upon
which it depends Mistakes, therefore, of
a person with respect to his own private
rights and liabilities, may be properly re-
garded-as in great measure they really
are-and may be dealt with as mistakes of
fact. Courts have constantly felt and
acted upon this view, though not always
avowedly. Lord Westbury openly de
clares that such misconceptions are truly
mistakes of fact"
In the case before me the Minister
thought that Honolulu Hale" was Crown
Land. The fair inference from the bill is
that he did not know that it was not listed
in the statutory schedule of the lands re-
served by Kamehameha III, to his heirs
and successors. He may have thought, as
many have, that all the lands of which
Kamehameha LII. died seized were Grown
lands whether in the schedule or not.
cannot hold that this was a mere mis-
take OF law, with full knowledge of the
facts. 1t was not naked mistake of fact
unattended with any special circumstances,
for it seems to me that the Minister may
have reposed special confidence in the
representations and peculiar knowledge
of the Administrator of Kamehameha Tvs
estate who held the evidences of title that
the premises in question was Grown
Land.n 1t is to be presumed that the
Administrator thought it was. Fraud or
deception on his part is not to be pre-
sumed. 1t seems to me that it was a
mutual mistake. In fact the error was
common to all who participated in the
transaction
think the Minister of Finance repre-
senting the public Treasury is shown by
the bill to have lien upon the Honolulu
Hale" premises to the extent of the amount
OF its value at the time the mortgage was
released
The demurrer is overruled.
Attorney General Neumann for plain
tiff; A. S. Hartwell for Mr.. and Mrs.
Bishop; i. NJ. Hatch for Queen Emma.
Honolulu, July %, 1885.
In the supreme Court of the Hawaiian
Islnnds--In Equity. In Bnnco July Term
1885.
MS GRINBAUM & Co. VS.. THE HEE1A SUGAR
PLANTATION Co. EFT. AL.
Before JEdd, O. j., MeCnlly and Prestoa,J J. Opbi
to' Of The Court by PrestoH,J.
This is an appeal by the defendant The
heeia Sugar Co. from a decision of the Chan
cellor made on the 18th instant denying a mo-
ton made on behalf of the said defendant to
resciad the decree Of foreclosure and sale
made herein. rr, r.H
On behalf of the defendant it was contended
that as the ctmplainant's had not kept sep
arate account of the moneys due oil account
OF the mortgage and of tie account current
for advances for carrying in the plantation and
as they had received payments in cash from
the defendant, it was their duty to appropriate
the moneys received in payment of the inter
est due on the mortgage, or at all events con
sidering their position as agents for the de-
fendant, to have given notice of their intention
not TO apply it for that purpose.
Counsel for the defendant argued that the
rule of the Civil law respecting appropriations
should be adopted in this case.
The Court however sees no reason for de-
parting from the course hitherto taken of
adopting the rule Of the Common Law.
The Court adopt the reasoning of the Chan
cellor as contained in his decision and affirm
the order made by him.
a. S. Hartwell for complainant; P. Men,
mann and f. NJ. Hatch for defendant.
Honolulu, July 3lst 1855.