The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-07


these dates III. Hackfeld q Co. were
owners of the note In question, by
delivery and Endorsement in blank
l.. AhlO, waving notice, protest and
demand, and this firm Endorsed on
the note Reed 1st dividend Of estate
of T. l.. i, Co. Feb. IL, 'S6-$145 81 (;
July 16, 'S6-S72.76." The note also
bears the statement written across
its face Settled July II, 'S6. by l..
Ahlo. III. II. & Co. by Il. Suhr;" and
it thereby became again the property
of the plaintiff. The sum claimed in
the declaration amounted, with in
terest to 7th June, 1892, when
the declaration was sworn to,
to S929S9 The statute of limita
tons was pleaded and it had run
against the notes at the date of suit
(six years from the date of the note
being April 3, 1881, unless the last
payment made, 18th July, 1886, took
the note out of the statute. The jury
found verdict for the defendant.
The plaintiffs bill of exceptions
raises as the first point, that the
trial Judge of the Circuit Court,
First Circuit, in giving the second
instruction TO the jury asked for by
the plaintiff having modified it, did
not observe the terms of the statute
governing such cases, to wit, Sec. 5,
Chap. Sc, Laws of 1892 The charge
asked for was:
IF the jury believe from the evi
dence that defendant, or any one on
his behalf and with his sanction made
a payment on account of said note
within six years prior to June a,
1892, then the statute of limitations
has not yet run against it," The
Court allowed this instruction and
gave it, adding "That is to say,
that it is evidence that there has
been a new promise that the
statute does not run" This second
request for instruction is marked
allowed" in the margin and the
addition made by the Court was de
livered orally and taken down by the
and transcribed The
statute referred to directs the Court
TO write in the margin of requests
for instructions, "given" or ''re-
fused" according as the Court shall /
approve or disapprove of them lie |
also prescribes that it is competent !
for the Court to modify an instruc-
ton and to give in its modified form,
'but in such manner that it shall |
distinctly appear what instruction
was given and what refused, IN /
whole or in part. All written re
quests for instructions shall be filed
n the cause, and shall be part of the
.ecord therein; aud the Court shall
n no case orally qualify, modify or
explain the same to the jury" Sec. =
If the Act requires the Court to re-
luce its charge to writing and read
t to the Jury. Sec. ) is as follows:
In cases where an official steno
-rapher is present and taking notes
f the trial proceedings, it shall not
70 necessary for the Court to reduce
IS charge to writing, but such
barge may be orally given and .
loted by such stenographer." Then
ollows directions IN regard to tran
cribing these notes, certifying and
ling them, etc. This last quoted (
ection must be read together with ]
he last clause of Sec. ) and the two !
1ean together that the Court shall
ot orally qualify, modify or explain ;
he charge to the jury unless the
Thole charge shall be taken down at {
he time by the stenographer and {
hereafter transcribed and filed. The /
bject of these provisions is to Sc i
ure in writing as part OF the rec {
rd of the case the exact words of {
ne Court in giving the law to the T
Try so that it would not be Deepen I
ent on mere memory for its repro |
uction. We consider that the sta I