The Hawaiian gazette., 1901-01-15
A TRIO Of
DECISIONS
Supreme Court Acts in
Three Cases.
HEALTH BOARD REbUKED
D. |. Akwai Wins His Suit Estate
Of Joseph lazarus--WiIlard
Matter.

Three supreme Court decisions were
rendered yesterday. The first was in the
matter of the appeal of ]. A. McCandless.
Superintendent of Public Works, from
decision in the Circuit Court
ID. l.. Akwai, the plaintiff, had applied
to McCandless for permit to build, and
had been refused, under authority of
resolution passed by the Board of Health
to the effect that permits to build
should be issued to erect buildings with
in a specified area, bounded by Beretania,
Nuuanu, Kukui and River streets, be-
cause of its insanitary condition, low al
titude and bad drainage. The plaintiff
petitioned for a writ of mandamus to
compel the Superintendent to issue the
desired permit, under certain sections of
the Penal Laws, which had been fully
complied with.
The Circuit Court held that the Board
of Health had no jurisdiction in the mat
ter, and that while 1t had wide power
for the protection of the public health it
could not interfere in the granting of
permits to build so long the require
ments of the law on the subject were
complied with, and this had been done.
The sections in question seek only to
guard against danger by fire and the
danger from bad building, etc. The plans
and specifications had been submitted
and were entirely satisfactory.
On appeal the Supreme Court affirmed
the decision. Justice Frear in his opinion
stated that the Board of Health had
gone entirely beyond its proper scope, and
pointed out that there might be many
good reasons for obtaining a permit upon
certain premises even though in an in
sanitary condition, without any intention
of doing anything prejudicial to the pub
lie health or safety 1t also stated that
the Board of Health could no more pro-
hibit the granting of building permit
than 1t could prohibit the execution of a
lease of the premises or the execution of
a contract to erect a building thereon"
The decision of the Circuit Court, sit
ting in probate, in the matter of the es-
tate OF Joseph Lazarus, was affirmed by
the Supreme Court, Justice j. Perry CIV
ing the opinion. The executor of the Will
arreals from the lower courts decision.
which charges him with the sum of $40,
and further with 1864, as interest unac-
counted for, and with 500 masters fee.
1t seems that in the original inventory
the executor charged himself with $40,
which he does not afterwards account
for. His defense Is that 1t was a false
entry, having been made by him upon the
information of the son of the deceased,
who told him that sum was in his faith
ers safe at the time. The son is now
dead, and his mother. who was mention
ed as possibly being present, was not
The charge of interest is for the sum
of s455O, which the executor withdrew
from the bank and held without account
ing for, for twelve months. The infer
ence is that the money was personal
loan to himself. and as he has made no
record of its disposal for that time. he is
charged with interest at the legal rate.
The masters fee was adjudged to be
properly a disallowance of commissions
to that extent, the masters services hav7
ing been required on account of the ex-
ecutor's fault in accounts, and this sum
was also affirmed as chargeable against
the executor.
Justices c. A. Galbraith and A Perry
concurred in the opinion.
The third decision was in the case of
John D. Willard VS.. Antoine Vincent and
T. Ledward, and it remands the matter
to the Circuit Judge of the Fifth Circuit
for taxation of costs and such other pro-
ceedings may be deemed proper.
Willard, the plaintiff acting as assignee
of respondent Ledward, voluntary
bankrupt, in bill of equity prayed for
the cancellation of two bills of sale of
certain personal property for $500 to re-
spondent Vincent, on the ground that
the contract was entered into fraudu-
lently and with the purpose of defraud-
ing creditors. The lower court filed a
decision and decree Diminishing the bill
and the plaintiff took an appeal
The decree is affirmed by the Supreme
Court. Upon the pleadngs and evidence
it was found that the sum paid for the
property by Vincent was full and fair
value; that the transaction as to Vincent
was bona fide, and that at the time of
the purchase Vincent had no reasonable
cause to believe Ledward to be insolyent
or In contemplation of insolvency or
bankruptcy.
Henry Gehring and Chas. Butzke.
plumbers, filed a complaint in assumpsit
against Lee Chin in which it is alleged
that defendant is indebted to plaintiffs in
the sum of s21O for balance due on ac-
count.
In re David Dayton. guardian of the es-
tate of Thos. Metcalf, minor, VS.. Helen
Rowland ct al. the defendant Helen
Rowland has filed an answer to the com
plant denying each and all the allega-
lions and announcing that fraud will be