The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1896-08-04

it is not only the right, but it may be
the duty, of the officer to leave the
parties to settle their differences in
court But even in such case, either
of the parties may after proper demand
institute a suit against the officer to
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 defendants
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 1.-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 ana
whether the record should
pledge and perhaps also obviate the
necessity of formally making the trans
ferrees parties of record. In this view
of the case it was immaterial, 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 10 that of the pledgor after the
commencement of the suit was i'm
proper. 1t is contended 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
commended, 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
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. IT.
win should not be considered, because
it was forced from him by void process.
Mr.. Irwin was summoned as witness
for the plaintiff by a subpoena regular
on its face but on advice of counsel
did not appear because, as is contended,
the day upon which he was summoned
to appear had not been set for hearing.
Thereupon, at the instance of plain
tiff's counsel, he was brought in by
and compelled, against OBJ
lection, to give his testimony AS to
the validity of the attachment, that is a
matter that concerns Mr.. Irwin rather
than the defendant, but we may state
for guidance in the future that in our
opinion, even though no hearing has
been set, witness duly subpoenaed
should appear and then state his OBJ
jections, if any, to being examined. If
he fails to appear, he may according to
the circumstances be brought in at
once by attachment or required to show
cause why he should not be attached.
As to the admission of Mr.. Twins
testimony, assuming that no hearing
had been set, we think that the de-
PENDANT was not prejudiced thereby,
for the facts testified to by this witness
were fully proved by the testimony of
other witnesses. This being an ap-
peal in equity, the Appellate Court
may consider the whole case on it's
merits.
The decree appealed from is affirmed.
Hartwell, Thurston & Stanley for
plaintiff.
Kinney & Ballou for defendant.
Honolulu, July o. 1896.