The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-10-28
NOT HELD
FOR FIRE
De Bolts Decision
In Stockyard
Case.


that plaintiff could not be held respon-
sible for the destruction of the defend
ants building by fire.
The building occupied by the Homo
lulu Stockyards CO., on King street was
constructed by NJ. l.. Smith, the con-
tract price being slS,SOO and the
structure to be completed by August
Both Under the contract Smith was to
receive the sixth payment of $500 upon
the acceptance of the structure. and the
last payment of $500 was not to be
made until thirty-five days thereafter
The building, however, was completed
before the time called for in the con-
tract and was accepted by the Homo
lulu Stockyards Co., on July Sth. There
after the structure caught fire and was
destroyed.
Judge De Bolt in his opinion says:
THE demurrer goes to the point that
inasmuch as the plaintiff agreed to-
erect and complete the building by
August 21st and because he did not,
therefore, he cannot recover There
can be no question but that the general
rule of law is as stated by counsel and
contended for on behalf of the defend
ant But this general rule, like all
other general rules, has it's exceptions,
which are founded upon the indispen-
sable principles of common sense and
of justice, and which are as well estab-
lished and binding as the rule itself"
After quoting numerous authorities in
support of this contention Judge De
Bolt concludes: Il hold the complaint
to be sufficient in law and accordingly
overrule the demurrer, granting de-
PENDANT leave to answer within such
1N.. syA liRn-
ton"
THE AUSTIN CASE GOES OVER.
The Austin mandamus case set for
hearing yesterday morning before
Judge Gear was continued for one week
at the request of c. w. Ashford for the
petitioner. A. S. Humphreys appeared
i'm court just as this motion had been
granted and was placed on record as
attorney for Austin also. The return
of the defendants was also filed yester-
day, there being an admission of the
facts connected with Austin's objection.
Then the answer says:
Respondents allege that on the 25th
day of September, 1902, Sanford b.
Dole, Governor of the Territory of Ha-
wall, by virtue of the authority in him
vested by law, suspended the said pc
titioner Herbert C. Austin from the
office Of Auditor of said Territory for
good and sufficient cause, and statu-
tory cause, to his satisfaction shown
and proved, and to him confessed by
the said Austin.
THAT the said Governor then and
there notified the said petitioner, in
writing, of such suspension and of the
reasons thereof, and of the charges
wherein said Governor had acted.
THAT thereafter and on the 26th day
of September, 1902, the said Governor
notified the said petitioner Herbert c.
Austin to show cause, if any he had
why such suspension should not be
continued in force until his Official
conduct as Auditor of the Territory OF
Hawaii could be submitted to and act
ed upon by the Senate of the Territory
of Hawaii; and appointed as the time
and place for said hearing the 29th day
of September, 1902, at 10 o'clock in the
forenoon of said day at the Executive
Chamber.
That, pursuant to the notification
last referred to, said petitioner appear
ed before the said Governor at thu
time and place set and thereupon sale
Governor offered to produce before sale
petitioner the witnesses to the facts II
and to introduce the testimony in sup
port thereof; that the said petitione
declined and refused to be present up
on the examination of such witnesse
and declined and refused to hear sucl
testimony, and then and there declined
to show any cause why the said sus
pension should not remain in force
and claimed that he was not, and, un
der the law, could not be, legally sus
pended from said office.
THAT the said petitioner Herbert {
Austin declined and refused to compl
with the order of said Governor mad
on the 9th day of September, 1902, sus
pending said petitioner as aforesaid
and declined and refused to vacate tn
rooms set apart for the use of the au
diting department of said Territor.
aud persisted IN retaining the offic
and functions thereof from which h
had been suspended; and thereupon. q
the eth day of September. 1902, sal
Governor ordered and directed the re
spondent Edmund r. Dole, as Attol
ney General of said Territory, TO 50
that the order of suspension was dul
executed; and In that behalf the r,
spondent Edmund p. Dole, as Attorne
General and -ofiicio head of the p,
ice department OF sald territory, II
structed the respondent Arthur
Brown, as High Sheriff, TO station
police officer at the door OF the ON,
of the Auditor to prevent said pet
toner Herbert c, Austin from retail
ing and exercising the functions Of Il
office from which he had been so su
pended and the said respondent A
thur M. Brown as High Sheriff, obey,
said inStTngtipng and Stationed n
lice officer for the purpose aforesai
that the respondent Henry @, Meyer
by direction Of the Governor OF q
Territory of Hawaii, upon the suspe
sion OF the petitioner Herbert @, Au
tin assumed ana has continued 10 pc
form all the duties and functions OF 1
said Office
THAT said respondents In all OF th'
ania And dnInns In The nranaIaDs IN