The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-18

tors was considered TO be sufficiently
proved, since the OrderJecites that the
debtors shave become bankrupt with
in the true meaning and intent Oh Tue
law regulating bankTu Jtcy in the Ha-
waiian islands, But there is no sep
arate finding in this respect made Soy
the Court.
In2B ach, Modern Equity Practice,
Sec. 974, we find the general rule III
equity to be that, "with some eXcep-
tions, il is we'll settled by numerous
decisions that objections will not be
considered 10y the Appellate Court IN
reviewing case unless they were pre-
scented and insisted on in the Court
below as shown toy the record" nj
what particularly applies to this case,
San 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, aud cases cited.
The Justice of this rule il manifest,
for if the objection is made when the
evidence is introduced it would be
within the discretion of the trial Court
to allow the omitted evidence to be
admitted.
Greenleaf Ev Sec. $40, and
Bond vs.. Dunlap, / Johus. Oh. 4S4.
We consider that this rule of equity
practice is applicable TO proceedings
in bankruptcy. II would be anala-
gous to the rule at law that u variance
of this character is cur, d by verdict.
Fowler VS.; Wild, 81 Mo. 4O4: This
case also holds that where suit was
brought in the firms name and
the plaintiffs individual names
were not set out, the defect was
not sufficient ground for granting
a motion in arrest of judgment, the
Court saying that advantage should
be taken of the defect Shy suitable
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) i member of the
firm of Tai Wo Chan Company,
it does not appear in the petition that
he is a party defendant; that is, the
petition was not amended by insert
ing Lam Pun's nam-, 80 a to conform
to The proofs. This amendment would
undoubtedly have been allowed III the
lower Court, if It's necessity ha been
suggested.
"Where upon the final hearing, or
from the evidence that the complain
ant has "A 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 a 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
add the na me of Lam Pun as mem
Der of said firm of Tai Wo Chan.
Upon the allowance 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 18th, 1894.