The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-11-07

cred the defense a valid one and sc
waived it. 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 unles.
otherwise provided by statute, be
| pleaded. 1t will not be raised by the
| Court unsolicited. Wood Linn. OF Ac-
tons, sec. Z, and cases cited. 'TThe
plea of the statute of limitations is
| generally a personal privilege, and
may be waived by defendant or as
serted at his election" Id, sec. Al.
In the case before us the plaintiff
| (the defendant at law, in his answer
| 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
dencs 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 overruled it, though it was, in the
opinion of Court of Equity, errone-
ously so decided, equity would not re-
173.) 4 fOrtjori, equity will not re-
lieve when the defendant omitted to
secure a 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 ground for new trial,
he would be refused, because he had
not asked the Court to rule upon it;
and an exception to this refusal would
not avail him. Omission to charge
upon any points of law arising in
case, unless desired or requested, is no
ground for a new trial. Hilliard, y.
L. 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 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
cannot grant him relief. The only
case cited by the plaintiff bearing
upon the equity of this case is Pei
ger Manufacturing Co. ". Hamburg
Bremen Fire In. Co. 81 Fed. Rep.
% Plaintiff brought several actions
against q number of insurance COM
panies for losses occasiOned by the
same fire. The jury found in his favor
in one action, and it was agreed that |
the same verdict should be entered in |
the other actions. In one OF these,
plaintiff had declared on two policies |
issued by the same defendant, each |
policy being made the subject OF a
separate count. By haste and mad |
vertence, a verdict was taken on only |
1ne count, the judgment entered there
On was affirmed, and, the amount |
thereof being paid, satisfaction was |
entered on the record. The omission
20 take judgment on the second count
was not discovered until three years
after, when it was too late to move for
1 new trial or to appeal. Held, that
only remedy was in equity,
IN the ground of mistake in the ver-
lict and Judgment" The Court held
hat the verdict and judgment omitted
he damages on one count through
lccident, mistake and inadvertence,
md sustained the jurisdiction in
quity. We have no such allegations
n the bill before us except such as
we're previously adjudicated in for
ner case between the parties.
We dismiss the appeal and sustain
he demurrer.
A. S. Hartwell and +. NJ. Hatch for
laintiff; z. Neumann, Carter IL
,arter for defendant.
Honolulu, October %, 1894.