The Hawaiian gazette., 1893-04-11

OPINION OF THE COURT BY FREAR, J.
This action was begun in the
Police Court of Honolulu on the
18th of October, 1892, and is
founded on judgment rendered in
the same Court on the 9Th of Janu-
airy, 1885. The defendant pleaded
the statute of limitations. The
plaintiff relied on a new promise to
take the case out of the statute.
Judgment was rendered for the de-
PENDANT.
The plaintiff appealed to JUS
tice of the Supreme Court in Cham
bers, and the appeal was heard by
Bickerton, j., who affirmed the de-
cision of the Court below, holding
that the plaintiff had failed to prove
by preponderance of evidence a
new promise sufficient to revive the
judgment. The plaintiff appealed
to this Court on the ground that
the decision of the Justice is con-
trary to the law and the evidence.
On examining the papers in the
case we find that the document
prepared by counsel and filed as
certificate of appeal is incomplete,
inasmuch as it contains only reci-
tails of the hearing and decision,
and nothing whatever in regard to
an appeal. But as the question of
the sufficiency of the certificate
was not raised on the argument,
we prefer to dismiss the appeal on
other grounds which are deemed
sufficient, rather than call for re-
argument on this point as would
otherwise be required by the sta
tute
By the Act of 1856 (Ch. LxI1)
the plaintiff, having been defeated
in the Police Court and appealed
to Justice of the Supreme Court,
is allowed no further appeal on
any question of fact. This is an
appeal on the question Of law whe-
ther there is evidence to sustain
the decision appealed from, and is
analogous to an exception to a YER
dict as contrary to the law and the |
evidence. This Court cannot ''try |
the case ode novo" on the facts but |
can only examine the evidence so
far as to see if there was sufficient |
to sustain the judgment appealed
from" Castle VS.. Bowler, decided |
by this Court February &c, 1892.
If the Justice had found as a ques-
ton of fact just what words were
used by the defendant, and as a
question of law that those words
did not amount to a promise suffi-
cient to toll the statute, there would
be pure question of law for this
Court to decide. But such findings
were not made or requested. The
finding that was made is in the
nature of a general verdict, and
cannot be reviewed except so far as
to see whether there was evidence
to support it. Was there evidence
to support it?
The plaintiff endeavored to prove
promises made by the defend
ant on two separate occasions.
AS to the first of these there is
the indefinite testimony of one
witness on each side. On
one side former attorney of the
plaintiff testifes in substance
that about three years ago the de-
PENDANT said, 81 know the debt is
due, the money will be paid; go to
Cartwright and he will pay it" or
like that; and on the
other side the defendant testifies
that he did not remember meeting
the attorney, or saying anything
about the matter. As to the other
alleged promise, there is the posi-
tive testimony of one witness on
each side. On the one hand, ano-
Their attorney of plaintiffs testifes
that shortly prior to the bringing
Of this suit the defendant distinct
" promised to pay the debt, if it
had not been paid by Cartwright;
and on the other hand, the defend
ant testifies that he asked the at
.orney why the bill had not been
presented before, and told him that
ne had no money to pay it with,
hat Cartwright ought to have paid
t long ago, and that his accounts !
With Cartwright had not been set
led, and he explicitly denied hay
ng made any promise to pay if l
Cartwright had not paid.
1t is clear from the foregoing !
hat there was evidence to sustain +
he finding that the plaintiff failed I
o prove by a preponderance of
a promise sufficient to re-
i've the judgment.
1t IS unnecessary to consider the r
urther question raised by counsel, 5
whether a Judgment of Court not L