The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-09-21

REFUSAL OF JDe uelenuanJS is OfeacN !
of the trust created by said deed /
and is fraud upon the complain.
ants and they submit that the de
PENDANTS ought to he compelled to
approve said clsim and to pay the
same pro rutu with other debts OF
His Majesty the payment whereof is
in said deed of trust directed
The complainants by their bill as
amended pray for decree that the
defendants do approve said claim
and pay the same pro rata with
other debts of His Majesty the pay
ment whereof is in said deed of trust
directed and rs alternative relief
that their claim of $7l 600 be estab-
lished by the Court, and that the
defendants he directed to pay the
same pro r0tU, etc.
The defendants, by their answer
as amended admit the execution of
the deed Of trust but deny that said
deed was intended for or was upon
the uses and trusts named in the
bill and aver tho truth to be that
said deed was given Solely for the
benefit of those creditors of the
grantor whose claims upon eXamina.
tion should appear to the trustees
TO be Just and whose claims should
be presented to them within three
months of the date of the deed or
allowed by n Court of competent
jurisdiction. They admit the resig-
nation of j. o. Carter and the APP
pointment of the defendant Cart
wright and that they have accepted
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 by the terms of said
deed the allowance or rejection of
all claims against the grantor was
coniided to the defendants, that they
have exercised the discretion grant
ed TO them and have rejected said
| claim because it was not shown to
| their satisfaction to be Just and cor
| rect and that said claim has not been
allowed by 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 a bribe
to gain the influence Of the King in
obtaining of the Hawaiian Govera-
ment the licence for the sale of
opium and that for said reason COM
plainants are not entitled to any re-
lief in u 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
tue 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 furtherance of u 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 i'll p"ri Heiicto."
To this general proposition there
can be no dissent But does it ap'
ply to this case!
In the first place | cannot con
ceiye upon what grounds the de-
defendants can ask the Court to in
vestigate or consider the defence O
ilIegality set up by their answer.
The defence implies, and must bc
taken to allege, a corrupt agreemen
between His Majesty and Aki
This seems to me impossible O
proof in any Court of this Kingdom
See Article 50 of the Constitution
"The King cannot be sued or helc
to account in any Court or Trihun
al of the Kingdom.
1t cannot be assumed that tn
: King could be Il party TO any illega
. transaction.
, 1t is said this money was ''intend
ed TO be offered and was offered L
{. the King rs q brihe." but IN the ey
OF the law, the King cannot b
) brihcd, or accept bribe, or he cap
able of doing wrong.
: | therefore hold that the matte
set up in this part of the answe
| cannot be investigated or consider
5 ed by me, and on full consideration
: / am satisfied that ought not L
have allowed the allegation to re
: main on the record.
If however it is proper for me t
T consider this matter, | should hol
that this defence cannot avail til
defendants here, as ! think tn
plaintiffs can maintain their cas-
without reference to the alleged il
legal transaction.
This was insisted upon by coun
sci for the plaintiffs who clted man,
authorities in support of his conten