The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-09-25

said trust and the entry into posses
sion Of the assigned premises and
the presentation and refusal of the
complainants claim. The defend
ants aver that 10y the terms of said
deed the allowance or rejection of
all claims against the grantor was
conGdcd to the defendants, that they
have exercised the discretion grant
ed to them and have rejected said
claim because il was not shown to
their satisfaction to be just and cor
rect and that said claim has not been
allowed 10y any Court of competent
jurisdiction. The defendants also
aver that no Just debt is due from
their grantor to the complainants
and that the sum of money claimed
by the complainants to have been
paid to their grantor if any was so
paid was not paid to the use of the
said Aki. And that the said money
was intended to be offered and was
offered by the said Aki as bribe
to gain the influence of the King in
obtaining of the Hawaiian GovcrN-
ment the liccnce for the sale of
opium and that for said reason COM
plainants are not entitled to any re-
lief in q Court of Equity.
In all other respects the defend
ants deny the allegations in the bill.
The cause was heard by me on
the 18th and 18th inst. and it was
strongly insisted by counsel for the
defendants that the Court could not
and should not entertain the bill on
the ground of the supposed illegal
nature of the original transaction
between Aki and His Majesty.
Many authorities we cited by the
defendants counsel in support of
the proposition that "money paid
by one party, in part performance
and in furtherancc of contract in
violation of law or of public policy,
which is capable of execution by the
acts of the parties themselves can
not be recovered back, where both
parties are in pdrj delictd. l."
To this general proposition there
can be no dissent. But does it APP
ply to this case?
In the first place l cannot con-
ceive upon what grounds the de-
defendants can ask the Court to in
vestigate or consider the defence of
illegality set up by their answer.
The defence implies, and must be
taken to alIege, corrupt agreement
between His Majesty and Aki.
This seems to me impossible of
proof in any Court of this Kingdom.
See Article 80 of the Constitution,
"The King cannot be sued or held
to account in any Court or Tribun-
al of the Kingdom"
1t cannot be assumed that the
King could be party to any illegal
transaction.
1t is said this money was ''intend-
ed to be offered and was offered to
the King as q bribe," but IN the eye
of the law, the King cannot be
bribed, or accept bribe, or be cap
able Of doing a wrong.
| therefore hold that the matter
set up in this part of the answer
cannot be investigated or consider
ed by me, and on full consideration
| am satisfied that | ought not to
have allowed the allegation to re-
main on the record.
If however it is proper for me to
consider this matter, | should hold
that this defence cannot avail the
defendants here, as | think the
plaintiffs can maintain their case
without reference to the alleged il
legal transaction.
This was insisted upon by coun'
sci for the plaintiffs who cited many
authorities in support of his conten
tion amongst others.
Gregg V. Wyman Cush 1927.
Smith V. Barstow ? Mich 1856
where the subject is fully considered
The principle has been recognised
by this Court. (See Refs V. Wen
dell Haw. l40).
1t becomes necessary to consider
how this principle applies TO The
case before Inc.
The matter is to some extent his
torical. Rumors of existence of ;
claim by Aki against His Majesty
had been current for some time ant
had been freely commented upol
in the public press.
On the 30th of June, 1887, at
mass meeting held in Honolulu, ant
which eliminated in Revolution ant
the promulgation of a new Constitu
tion, this matter was among others
taken into consideration and certain
resolutions or demands of which tn
following is one were forwarded t
His Majesty:
"Third. In order, so far a
possible, to remove the stain nov
resting on the Throne, we request o
the King that he shall cause immedi
ate restitution to he made of tn
sum to wit: seyenty-one Thousand
dollars (S7l ,000) recently obtained
by him in violation of law and of hi
oath of office, under promise tha
persons from whom the same wa
obtained should receive the licenc
to sell opium, as provided by tn