The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-07-20

tors was considered to be sufficiently
proved, since the order recites that the
debtors "have become bankrupt with
in the true meaning aud inteut OF the
law regulating bankruptcy In the Ha-
waiian Islands" But there is no sep
arate finding In this respect made by
the Court.
In b ach, Modern Equity Practice,
Sec. ga, we find the general rule in
equity TO be that, with some excep-
tions, IL is well settled by numerous
decisions that objections will not be
considered by the Appellate Court in
reviewing II case unless they were pre-
scented and insisted on in the Court
below as shown by the record" nd
what particularly applies to this case,
''an objection TO variance between
pleadings and proof must be raised
when the evidence is offered and not
for the first time on appeal
Id. p 94s, and cases cited.
Tie justice of this rule IL manifest,
for if the objection is made when the
evidence is introduced 1t would be
within the discretion OF the trial Court
to allow the omitted evidence to be
admitted.
Bond vs.. Dunlap, Johns. CHI. ASA.
We consider that this rule of equity
practice is applicable TO proceedings
in bankruptcy. 1t would be anala-
gous TO the rule at law that u variance
of this character is cured by verdict.
Fowler VS.. Wild, 81 Mo. 404. This
case also holds that whers suit was
brought in the firms name and
the plaintiffs individual names
were not set out, the defect was
not sufficient ground for granting
motion in arrest of judgment, the
Court saying that advantage should
be taken OF the defect "by suita NE
motion before the trial is closed so as
TO give the parties an opportunity to
amend" Id.
We therefore decline to consider the
objection here.
Another objection is made by the
respondents, that though the order of
the lower Court finds that Lam Pun
NOW in China) is a member of the
firm of Tai Wo Chan Company,
it does not appear in the petition that
he is party defendant; that is the
petition was not amended by insert
ing Lam Puu's name, so as to conform
TO the proofs. This amendment would
undoubtedly have been allowed in the
over Court, if its necessity had been
suggested.
"Where upon the final hearing, or
even after appeal, it appears clearly
from the evidence that the complain
ant has case which entities him to
relief. but which, by reason of some
defect or omission in the charges or
allegations in the bill, is not brought
fairly within the issue, he Will be
permitted to adapt the allegations of
the bill to the case as proven"
Beach, Sec. III, and cases cited.
1t Is urged that this Court, being
solely appellate in jurisdiction, can
not allow the amendment here. With
out passing upon this, we have power
to remand it to the lower Court for
such amendments, wide Sec. 20 OF the
Judiciary Act;) proceedings in bank
ruptcy being in the forum OF Circuit
Judge at Chambers.
We therefore remand the case to
the Circuit Judge who heard the mat
ter, with directions TO allow the said
amendment to the petition, i. e., to
aid the name of Lam Pun as n mem
Der of said firm of Tai Wo Chan.
Upon the allow ,nce and filing of
these amendments, the order appealed
from is affirmed.
w. A. Kinney and Carter & Carter
for petitioning creditors; G. w. Ash
ford for respondents
Honolulu, July llth, 1891.