The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-06-01

out" He gives no reason for the
delay. So far as the Court is in.
formed, he made no move and took
no action whatever toward carrying
out this statutory requirement until
three days had elapsed, and then he
woke up to the call of duty and pro.
ceeded to put out the notices. Was
this the shortest practicable time,'
or was 1t " as soon as circumstances
permitted" the authoritative defni.
tions of the statutory words as
soon as possible 2" Clearly it was
not.
The defendant stated that notices
were placed in prominent places, one
at the bottom of pail. one at Chinese
store, one at Heeia" There is no
evidence as to the locality of the
Chinese store, but as to Heeia and
the foot of the pail, the distance be-
tween them by the road is no obsta-
Gle to man living at Heeia, which
is defendants place of residence, to
posting notices in both places in one
day or in one forenoon for that mat
ter, even If he had to go afoot, which
is not likely with a Hawaiian; and if
the Chinese store was between
these localities, as is probable from
the fact that in giving his testimony
defendant places it between them in
the sequence of his narrative, then
no good reason can be easily imagin-
ed for putting off till the fourth day
this important work.
In case like this a delay of three
days before acting, puts on the
party complained of the necessity of
introducing testimony that such de-
lay was reasonable, i. g., that the
duty was performed as soon as cir
cumstances permitted or within
the shortest practicable times" fail
ing to do this the Court has nothing
before it to show that a delay which
is prima facie unreasonable, is on
account of some circumstances or
other, reasonable and necessary.
In Commonwealth VS.. Boston ZIG
Pick, 44S), the city was indicted for
not putting in order new public
road in South Boston authorized by
statute; the Court held that the city
having decided that the work of
completing this road and making it
pas5able as street should be taken
up, they were bound to complete it
within a reasonable time of such
and as to reasonable
time, the Court said, I" if the city had
to defend on the ground
that they had proceeded and were
proceeding with reasonable dill
gence, to make and complete this
and that they had not had |
reasonable time after passing the |
order to complete it, they should |
have set forth the facts necessary to |
maintain such defense that the
Court might Judge of Them"
The statute under which a pound
master is authorized to sell estrays,
must be construed strictly against |
him. The owner of the estrays is |
entitled to have the law strictly car
RED out. The law requires that |
sstrays that are not claimed shall |
be sold at auction at noon on the |
first Saturday ensuing after the ex-
oiration of twelve days from the
lime of impounding. A delay of
5hree days. therefore, in posting the
notices materially diminishes the
owners chances of being in
formed of the impounding of |
his animals and that they are
liable to be sold to the highest bid
der; he is entitled to have the no
tees made according to law, that is,
'as soon as possible" i. e., within
the shortest practicable time," i. g.,
'as soon as circumstances permit"
after the impounding, for he or his
friend may, passing along the road,
on the second or third day, be in a
position to see the notice that ought |
to be there, and miss seeing them,
because of an unwarrantable delay |
in posting them and so he be injured |
in his property.
We are satisfied that a delay of |
three days is not in accordance with |
the statute unless good reasons
be shown for such delay, which has
not been done in this case.
at is incumbent on the defend
ant to show that all his proceed
ings have been in entire conform
ity with the provisions of these sta
tutes, and any failures in this res
pect being an abuse of authority
given him by law, will make him
trespasser alb initiO."
Smith VS.. Gates, Il Pick. Sc;
Merrick vs.. Work, 10 Allen, 544;
Sherman VS.. Brannan, Ii Met. 407.
We are therefore of the opinion
that the sale was illegal and that the
plaintiff is entitled to the full value
of his horses at the time of sale
without offset for pound fees.
Exceptions overruled.
w. r. Castle for plaintiff; j. l..
Kaulukou and j. A. Msgoon for
defendant.
Honolulu, April IL, 1891.