The daily herald. [volume] (Honolulu, Hawaiian Islands) 1886-1887, 1886-11-08
INTERMEDIARY COURT.
Judicial Decision.

decision in the Intermediary Court,
on an appeal from the Police Court,
Honolulu, in the case Of Henry Birch
VS. Anna Long, executrix of John
Russell
The plaintiff sought to recover one
hundred dollars, being fee paid to
the late Mr.. Russell for proceedings to
be taken in the Supreme Court, which
the plaintiff alleged we're not taken, to-
gether with $3.50 for interest. In
plaintiffs complaint he alleged that
since the death of Russell he probated
his claim to said $too and caused it to
be presented to defendant for payment
in May, 1886, and that the defendant
refused and continued to refuse pay
ment of it. AT the hearing the de
PENDANT by her counsel pleaded the
general issue" His Honor proceeds
as follows:
The appeal was heard by me on
the 18th inst, when counsel for the
plaintiff commended that under the plea
of the general issue, he had proved all
that was necessary, and that the de-
iendant should have specially traversed
the allegations of the complaint and
should have specially pleaded the
statute of limitations, and therefore the
decisions Of the Police Judge were
erroneous. In support OF these views
counsel cited numerous authorities to
the effect that everything appearing in
the pleadings that is traversabe and
that is not traversed, is admitted and
therefore need not be proved.
"T'here is no doubt about the prin-
ciple contended for, being correct
under the rules of pleading in force in
England and other countries, but in
this Kingdom special pleading has been
abolished by statute, and the only an
swer in common law actions in courts
of record is general denial of allega-
tons in the complaint, which is known
as the general issue.
"rhe practice in the Police Courts
has been for the defendant, when he
disputes his liability, simply to plead
orally the general issue, which puts
the plaintiff upon the proof Of every
material allegation IN the complaint.
"rhe plaintiff introduced evidence
in support of his claim, but did not
prove that the defendant was execu-
trix, or that the plaintiff had sent in his
claim to the defendant within the time
limited by statute, or that the claim was
rejected and suit brought within two
months after rejection.
"The defendant moved for a non.
suit, which was granted. Subsequently
and within five days from this decision,
the plaintiff applied to the Police
| Judge to set aside the nonsuit and rein
state the case for the following reasons:
81. That the Court erred in dismiss
ing the case.
az. That the dismissal of the case
was a surprise and disappointment to
the plaintiff and his attorney.
"3. That the exigency of the case,
and the state of the pleadings, and the
evidence, and the practice of courts
under like circumstances and condi;
tons, did not warrant or justify such
dismissal, and the same works great
hardship and injustice to the plaintiff
"a. That the dismissal is against
law and the rights of the plaintiff anc
the justice of the case.
"lhis application was denied and tht
plaintiff appealed from both decisions
/ at would be very inconvenient i
the practice Of special pleading were
adopted in the Police Courts, anc
would in my opinion be improper.
) therefore hold that the nonsuit wa
right.
, "With respect to the motion for re
Installing the case, it may be that thu
plaintiff has suffered hardship by it
being denied, but the plaintiff reliet
E solely on the ground that the decision
| of the Police Judge was wrong in law
, and as | have held that his decision II
! granting the nonsuit was correct,
: must hold that he was right in refusln
e the motion.
S "Had the application been made t
| the discretion of the magistrate, or o
e affidavit of merits, it is possible h
!. might have decided differently unde
!. the peculiar circumstances, but, as TIL
d was not d me, | must dismiss tn
!. appC al with costs"
e M. Thompson for plaintiff, Kline
p & Peterson for defendant,
y Escape of DAVIS.
lc Co... all, LoJ n tonoihla cuhiact N