The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1888-10-23
JUDICIAL DECISIONS.

Holds Water.
The opinion Of the full Court bv judge
Dole Is rendered in Charles Iorsen We
j. l. NateThouse and F. S. LYMAN. ex-
ecutors OF the will of J. D. Mills. de-
ceased. 1t comes up on exceptions to
! Judge Preston's decision oyer-ru]ing the
defendants motion for new trial on
the ground that the verdict was contrary
to the law and the evidence. The YER
dICt OF the jury had given the plaintiff
the amount claimed, 81 PIG, but not al
lowed credit of $500 admitted to have
| been paid. Upon hearing argument for
and against new trial, Judge Preston ac-
| cepted plaintiffs undertaking to aban-
don the excess OF $500; when judgment
might stand for SIG, otherwise there
must be new trial. 1t is on an appeal
! from this decision that the full Court
| now UNANIMOUSLY owe r-rule the eXcep-
| IONS, refusing TO grant new trial. {.
! Creighton for plaintiff; w. .. Smith for
| defendants.
The opinion of the full Court bv Judge
| Preston is rendered upon an appeal from
| decree OF Judge Dole, dismissing the
claimants bill in the suit of Ananu, Pic
maui, MailUu and kalakoa VS. Elizabeth
| Humphreys and Sarah Tennev. As it
| seems to the Court that the bill cannot
| be amended in any way to show a cause
of action, the decree dismssing the bill
must be affirmed and with costs NJ
Thompson for plaintiffs; A. S. Hartwell
| for defendants.
The majority opinion of the Court by
Judge Preston-Judge Dole dissenting
! Is rendered in the Chinese habeas cor
pus case OF Mau Nun and All Yin These
| Chinese arrived on the steamer Aus
| tralia from San Francisco on the oath
| day of July last, holding return passports
| that were issued to other Chinese.
| Their friend All Hin had them produced
| before Chief Justice Judd under a writ
of habeas corpus, alleging that they were
unlawfully and unjustly restrained of
| their liberty by Captain Houdlette on
| board OF the steamer Australia, and that
| they were not restrained by virtue OF
any warrant or other process. At the
| hearing on July 3lst, at 9 30 Il. M, Cap
| tain Houdlette filed an answer to the
| writ, stating that he had Mau Nun and
| All Yin in his custody by virtue OF an or
der OF the Collector General of the port
of Honolulu who has ordered respondent
to hold them, that respondent does not
know the cause of such restraint and
does not hold them under any process or
warrant This answer proved to have
been prepared by the attorney for the
Chinese, and the Chief Justice ordered
the Acknowledgement to be notified, who
appeared and filed a supplementary re-
turn, stating in effect that the two China
men were legally detained by virtue of
provisions of Chap. % of the laws of
1887 AS the Australia was to sail at
noon, the Court Wi h the concurrence of
counsel adjourned the hearing until the
3D. August, admitting the appellants to
bail in the sum of $500 each. At the
hearing it proved that neither of the APP
pellants had ever been in the Kingdom
before, but had bought their passports
from some Chinaman i'll the Hawaiian
Consulate at HOngkOng for the sum OF
| 1913 each. The Chief Justice allowed the
sutIiciency of the acknowledgements re-
turn and remanded the appellants to the
custody of the Marshal until the return
of the Australia. An appeal was taken
and with the consent OF the Attorney
! General the appellants were admitted to
| bail. The Court by its opinion now rem
| dered holds that by the law in question
| the Legislature has clearly expressed its
| intention, to prohibit the landing OF
| Chinese in the Kingdom except in the
| cases specially provided for. AS to the
| contention of appellants that the Col
| lectOr-General had no authority to order
| their detention, except Tor time neces-
sary to procure a warrant for their ar
rest, the Court says:
| But neither the Collector General
nor the Government is bound to proceed
| against persons arriving in vessels in the
manner of these appellants. They may
| take such steps as may be necessary to
prevent such persons landing. Other
| wise the whole scope and intent OF the
| law might be defeated, by the authOr-
| ties taking such persons from the vessel,
and charging them with attempting to
| land, for which a penalty of fifty dollars
might be inflicted. The enforcement of
| such fine would not deter the landing
of such prohibited persons" Again,
after reciting the circumstances of Capt.
| Houdlette's return, the Court says: " To
allow the discharge of the appellants
| under such circumstances would render
the process of this Court a means for
! enabling masters of vessels to evade the
provisions of the law with impunity."
| The Court cites authorities beginning
| with Lord Coke as to what is meant by
| ''authOrity or due process OF law, show
| ING that such " comprehends any author
| itv, lawful warrant or proceeding under
which a person may be arrested, and
proceeding and warrant, either in deed
! or i'm law, without warrant
''The Legislature in exercise of its I'M
doubted right" the Court continues,
has thought fit to prohibit the landing
of Chinese in this Kingdom, except in
certain cases which do not apply to these
appellants. And it is the duty OF tins
| Court to give effect to this Legislation
without considering its policy or wisdom.
! We cannot conceive of any higher war
rant or authority in law, than the eX-
press enactment of the Legislature, with
| in its constitutional limits, forbidding the
landing OF Chinese without permits
| The Court further holds that the Gov
arnment has full authority to prevent