The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-08-03

, it is not only the right, but it may b.
the duty, of the officer TO leave th'
parties to settle their differences il
court. But even in such case, either
Of the parties may after proper demand
. institute a suit against the officer tC
compel him to record the transfer, and
the proper course then is, not to ask
TO have the bill dismissed because the
parties are not in accord, but to inter
plead and ask that the parties be re-
quired to contest the matter between
themselves. In this case, the trans
| Terror demanded a record of the trans
fer as a pledge and, upon defendant
refusal to comply with the demand on
| the ground that the parties were not
| in accord, instituted this suit. This
/ he was entitled to do. If he could,
| by reasonable effort before suit, have
satisfied the defendant that the parties
were in accord, and failed to do so,
he might be required TO pay the costs
of suit but the suit would not on
that account be dismissed. The latter
result would not necessarily follow even
| if the parties were not in accord up
to the time of final decree. There
were introduced in evidence in this
case letters of the transferrees them
selves written after suit was brought,
demanding that the transfer be re-
corded as a pledge. This evidence was
admissible, not for the purpose of
showing a demand (the demand which
was made by the transferror alone be-
fore suit having been sufficiently but to
show the consent of the transferrees to
the form of record demanded, and thus
render it unnecessary for the court to
decide as between the transferror and
transferrees whether the record should
be absolute in form or by way of
pledge and perhaps also Obviate the
necessity of formally making the trans
ferrees parties of record. In this view
of the case it was immateriaI, except
as to the question of costs, whether the
parties to the pledge were in fact in
accord before the commencement of the
suit or whether, if so, the defendant
knew it.
4. That the special replication set
ting up demand by the PLEDGES SINH
lar to that of the pledgor after the
commencement of the suit was i'm
proper. 1t is commended that this mat
ter should have been set up, if at all. |
by supplemental bill. The argument |
is that if the special replication should |
be struck out, the evidence of the trans |
ferrees' demand would also have to |
be struck out, for the reason that, as |
contended, there would then be no |
in the pleadings under which
such evidence would be admissible.
But, as has been stated, evidence of
this demand was admissible for other
reasons, and therefore the defendant |
was not prejudiced by the special repli-
cation. AS a matter of correct prac-
tice the special replication was, in our
opinion, unnecessary and should not
have been allowed
5. That the testimony of w. G.. r.
win should not be considered, because
t was forced from him by void process.
Mr.. Irwin was summoned as a witness
or the plaintiff by subpoena regular
On its face but on advice of counsel
lid not appear because, as is contended.
he day upon which he was summoned
o appear had not been set for hearing.
Thereupon, at the instance of plain
lifts counsel, he was brought in by
and compelled, against OBJ
to give his testimony. AS to
he validity of the attachment, that is
natter that concerns Mr. Irwin rather
han the defendant, but we may state
or guidance in the future that in our
'PlAAOh, CNCh I1OuSI uO nearing mas
)een set, witness duly subpoenaed :
should appear and then state his OBJ =
ections, if any, to being examined If
lie fails to appear, he may according to
he circumstances be brought in at
nee by attachment or required to show
ause why he should not be attached
As to the admission of Mr. Irwin's
estimony, assuming that no hearing {
lad been set, we think that the de-
endant was not prejudiced thereby,
or the facts testified to by this witness
we're fully proved by the testimony of
'ther witnesses. This being an ap-
zeal in equity, the Appellate Court
nay consider the whole case on it's
merits.
The decree appealed from is affirmed.
Hartwell. Thurston e Stanley for a
plaintiff s
Kinney & BallOu for defendant
Honolulu, July % 1896.