The Hawaiian gazette., 1893-08-01

This case is presented to US upo
two questions reserved by Mr.. Jus
tice Bickerton in the following state
ment {:
4" The defendant, on the 9th day O
February, 1892, moved for a stay o
execution for the following reasons
l. Because said action is in law al
action of assumpsit, and that SAT-
action, as appears by the plaintiff !
declaration, was and is properly anC
legally barred by the Statute of Linn
itations of six years, AID that judg
ment was and is therefore erroneous
and void.
2. Because judgment herein was
entered inadvertently, erreneously
and contrary to the Rules of Court.
3. Because execution issued on the
| Judgment 50 entered is and ought tC
be stayed until the defendant can
obtain hearing upon his motion to
set aside said judgment, and to sue
out writ Of error on the same If
such motion be denied.
Stay of execution was thereupon
granted to enable the defendant to
obtain a hearing before the Supreme
Court at the next April term thereof
upon a motion to set aside the judg-
ment, and in arrest of the same, the
said defendant having filed the bond
required by statute.
On the first day of this April term
defendant moved to set aside the
Judgment, and that further judgment
be arrested on the grounds
l. That the said judgment was en-
tered pending the decision of the
Court in Banco on the defendants
exceptions and contrary to the Rules
of this Court.
2. That the pleadings in the cause
show that said action was and is
barred by the Statute of Limitations
of six years.
An affidavit was also filed showing
that no evidence was offered at the
trial of the cause of new promise
on the part of the defendant to pay
the claim sued on.
| find that said cause was COM
menced and service Of the complaint
therein made upon the defendant on
September 4th, 1890.
That said cause was tried before
Mr.. Justice Dole, jury being waived,
on August 9th, 1891. ST
That during said trial certain ex.
ceptions were noted in writing by de-
PENDANT and allowed by said Justice.
That the said Justice fled his
written decision therein on the 22nd
day of August, 1891, in favor of the
plaintiff.
That on August 18th, 1891, iudg-
ment was entered for S11, 294.23 and
$23.65 costs.
That on August 29th, 1891, defend
ant filed his bill of exceptions en-
bodying one of the exceptions taken
by him at the said trial, and two ex-
captions taken to the findings in said |
decision, and said bill Of exceptions |
was allowed.
That on December 5th, 1891, the |
said Justice allowed the plaintiffs
attorneys bill of costs for S4O1.95,
including attorneys commissions as
n assumpsit.
That on December 18th, 1891. exc
,ution issued by order of the SAID
Justice for S12,03273, to wit: ST.
iO1. 9S debt and $43O.75 costs.
That no amendment of the judg-
nent roll or additional INDIGNANT was |
That the defendants exceptions
we're oyerruled on February 9th, 1892.
/ therefore reserve for the consid
ration of the full Court in Banco
he questions:
~ Whether the judgment entered
hould be set aside.
~ Whether further Judgment
houId be arrested for the cause
LEGGED in defendants motion.
The plesdings in the case and the
ecision of Mr.. Justice Dole may be
eferred to as part hereof"
Rich. f. BIDKERToS,
Justice Supreme Court.
DECLARATION.
''The plaintiff above named, E. de
Ierblay, complains of the defendant
bove named, Samuel Norris, for
igner by birth, and for cause of
ction alleges:
That heretofore, to wit, on the 4th ,
ay of October, 1870, in the city OF
ew York, State of New York, in the t
nited States of America. the plain {
If brought her certain action at law I
gainst the defendant in the Su I
rene Court of the State of New c
ork, for the city and county, to re q
,ver from said defendant the sum
S4,68600, with interest thereon g
Id costs of suit. q
That at the time of commencement g
said action and the rendition of e
e judgment therein, hereinafter b
entioned, the said Supreme Court p
as a Court OF Record in said city a
I'd county of New York, having a
risdiction over the parties plaintiff
"A daFon1apt- z,f1 oof.or ord 4