The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-01-10
ORGANIC
ACT CITED
The Kamalo Case
In Supreme
Court.
DEMURRER HAS
BEEN DENIED
humphreys Rules in favor OF the
Orpheum Co.-Master's Report
in Robinson Estate.

The organic act and it's relations to
| the Hawaiian judiciary, formed the
principal bone Of contention before the
| Supreme Court yesterday in the ap-
plication for a mandamus to compel
Judge Humphreys to hear further evil
dence in the Kamalo case.
J. A. Magoon. attorney for the plain
tiffs, contended that the decision OF the
Supreme Court was explicit; the case
had been remanded back to the Cir
cult Court for the hearing of additional
evidence, and it was clearly the duty
of Judge Humphreys to obey the man
date of the Supreme Court. He SAID
there was nothing in the decisions cited
by Humphreys which would justify
him in refusing to hear the matter.
He dwelt also upon the need Of imme-
date action, as the case had been
dragging along For months. while the
plaintiffs were suffering loss every
day.
In reply, Attorney Robertson quoted
from the Organic act the section
which prohibited judges from sitting
in case upon which they had already
passed. He contended Judge Hum
phreys was clearly Disqualified; that
he had passed upon the case, and it
made not the slightest difference
whether he had heard all the evidence,
or only a part of it. His former rul-
ing was final. and to reopen the case
was the same as a new trial.
McCants Stewart replied, contending
that the case had been but partially
presented, and the Supreme Court had
renanded the case to Judge Hum
phreys with instructions to hear addi-
tional evidence. That this meant
new trial, he said. was absurd; the
Supreme Court was not in conflict with
the organic act in sending the case
back to the First Circuit; it had SIM
ply ordered that evidence be heard.
This is not a new trial and cannot be
considered as such. The matter was
submitted without fruther argument.
GALBRAITH DISQUALIFIED.
The case of C. a. Brown vs. }. d.
Spreckels ct al. was not heard yester-
day as intended. Justice Galbraith is
disqualified, having formerly been at
torney for one of the defendants. The
tute justice, though Judge Dickey and
]. T. De Bolt were both agreed upon,
but could not be found.
IN CIRCUIT COURT.
In a written opinion filed yesterday
Judge Humphreys sustains the demur
rer of defendant in the case of ]. ].
Byrne VS.. Orpheum Co, Ltd. The suit
was a bill for $3.50 go by the Metro
politan Meat Company. In the decision
the court holds:
| THE declaration fails to allege that
| the goods were sold at the special in
stance of the defendant, or otherwise to
state any consideration for the con-
tract; nor does 1t allege any promise
to pay on the part of the defendant.
But even if promise were alleged to
have been made by defendant the dec
laration would still be bad in that it
fails to allege any consideration to
support promise. The law implies
promise of the defendant to pay under
certain circumstances but it will not
/ imply q consideration in assumpsit on
demurrer except where the action Is
| brought on a promissory note, bill of
exchange, or sealed instrument. De-
murrer sustained.
THE ROBINSON ESTATE
Henry Smith, master, to examine the
annual accounts of S. c. Allen and NJ
p. Robinson, trustee under the will OF
James Robinson, filed his report yes
! terday.
The master finds that the trustees
failed to charge the estate with their
! commissions, and finds they are emit
! tied to s42 So He refers also to the
conversion of $4,000 in Hawaiian gov
eminent bonds into cash, and again in
to Hilo Railroad Company bonds, and
the court is asked to decide the ques-
! ton OF commissions on this amount,
no charge having been made. The mas
ter finds the trustees to be entitled TO
$500 additional commissions. The
| trustees charge themselves with s41,-
CO.. 4s. and ask to be allowed sS9,174.51.
The matter is set down for hearing
next Monday
COURT NOTES.
A discoRtinuance was filed yesterday
in the case of d. Tells VS.. John ka-
lua, action in tort.
Charles r Hemenway as admins
traitor OF the estate of H. G.. Biart. has
filed a petition for permission TO sell
the jewelry stock of the estate. He
alleges that on the morning Of January
g 1902. fire occurred in the building
adjoining that occupied by the store OF
the late Henry G. Biart. in which the
fixture. and tools were damaged. He
further says he has been ordered by