The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-11-09

! cred the defense valid one anu so
: waived ii. 1t was not the duty of the
/ Court to have passed upon it, OF its
/ own motion. The bar of the statute of
/ limitations must be interposed by the
/ diligence of the debtor and unless
/ otherwise provided by statute, be
/ pleaded. 1t will not be raised by the
! Court unsolicited Wood Linn. of Ac-
! lions, sec. Z, and cases cited. THE
! plea of the statute of limitations is
/ generally a personal privilege, and
/ may be waived by a defendant or as
serted at his election" Id, sec. Al.
In the case before us the plaintiff
I the defendant at law, in his answer
( stated that he relied upon the statute
| of limitations. He did not, however,
| call it to the notice of the Court. He
also stated in his answer that he relied
upon fraud, illegality and payment
as defenses and equally did not press
! these defenses, nor present any evil
dence to prove them. We can come
to no other conclusion than that he
waived all these defenses.
The rule is undoubted that if the
law Court had passed upon the plea
and oveTruled it, though it was, in the
opinion of Court of Equity, errone-
ously so decided, equity would not re
lieve. Holmes V. State, % \. J. Eq.
49, A JOrtiOri, equity will not re-
lieve when the defendant omitted to
secure decision upon his plea.
If the plaintiff had failed to have
the plea passed upon, through negli-
gence or because he waived it, and
had after decision, asked the law
Court to allow him an exception on
this point as a ground for a new trial,
he would be refused, because he had
not asked the Court to rule upon 1t;
and an exception to this refusal would
not avail him. Omission to charge
upon any points of law arising in a
case, unless desired or requested, is no
ground for new trial. Hilliard, n.
t. p. 207 and numerous cases there
cited. The jury was waived in this
case, but we apprehend that the same
rule would apply, inasmuch as the
rulings of the Court on matters of law
in a jury waived case are of the same
general nature as the instructions of
the Court to the jury and are subject
to exceptions.
The plaintiff had his day in Court
and then and there failed to present
the defense he now offers. Equity
cannot grant him relief. The only
case cited by the plaintiff bearing
upon the equity of this case is Pei
ger Manufacturing Co. V. Hamburg |
Bremen Fire In. Co. 60 Fed. Rep. |
" Plaintiff brought several actions |
against a number of insurance COM |
panies for losses occasioned by the |
same fire. The jury found in his favor |
Z |
the same verdict should be entered in |
the other actions. In one of these, /
plaintiff had declared on two policies |
policy being made the subject of
vertence, a verdict was taken on only |
one count, the judgment entered there
on was affirmed, and, the amount
thereof being paid, satisfaction was
on the record. The omission
to take judgment on the second count
was not discovered until three years
after, when it was too late to move for
a new trial or to appeal. Held, that
plaintiffs only remedy was in equity,
on the ground of mistake in the ver-
dict and judgment" The Court held
that the verdict and judgment omitted
the damages on one count through
accident, mistake and inadvertence,
and sustained the jurisdiction in
equity. We have no such allegations
In the bill before US except such as
were previously adjudicated in q for
mer case between the parties.
We dismiss the appeal and sustain
the demurrer.
A. S. Hartwell and F. NJ. Hatch for
plaintiff; P. Neumann, Carter &
Carter for defendant.
Honolulu, October %, 1894.