The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-06-27

the claim for damages TO an action q
law ask that the case be set dow
for next week when the amount OF tn
damages can be ascertained- / agre
10 the bill OF costs, and also conside
that the attorneys fees asked are rea
sonAble for the amount OF work In
volyed In the trial"
Mr.. Mechanism, who appeared 70
the Rapid Transit Company. said Their
J were cogent reasons why the damage
should be assessed by the court
First. said he. the damages consis
largely OF attorneys fees. which wouiC
more properly come before your honol
than To be determined by jury. Sec
ond. the damages 10 the Rapid TRANSIT
1 Company were sustained In such a way
as 10 be difficult OF proof. For instance
the four months delay. while entailinl
| considerable loss OF profits, etc. could
1 hardly be determined or proven. and
We are willing TO waive that. We will
| show. however. that We put into the
purchase OF rails and other material
| for the use OF the extension. over $1,000
and we do claim the interest on that
amount for the four months which the
money was laying idle. because OF the
Issuance OF this injunction. i think the
Tramways Company will pay the
amount OF damages awarded by the
court. There Is no dispute as TO the
attorneys fees. and the amount OF in
terest on the money is easily shown.
witli no chance OF contradiction, so /
can see no cogent reason for post
ponement at this time"
THE decision OF the Supreme Court
In the case OF See Yick Wal VS.. All
Soon. 18th Hawaiian. does. as counsel
suggests, govern this case. and my re-
marks may be regarded as a purely
academic criticism OF that decision.
said Judge Humphreys The Supreme
Court of Hawaii held in that case that
the court might In an equity suit exer-
else its discretion and award damages
on an injunction bond or might dele,
gate the parties TO an action ut law. 1t
was held also that attorneys fees
should be considered as an element OF
damages The court based its decision
in that case upon Russell VS.. Farley. %
United States. The United States SUI
preme Court has held, however, in a
number OF cases that attorneys fees
cannot be considered an element OF
damages. The Supreme Court of the
Territory probably thought IL was fol- |
lowing the decision OF the United States |
Supreme Court when. In fact. they |
were overruling the United States Su- |
prcme Court While we might not feel
that IL Is the duty OF Territorial courts |
TO construe the decisions OF the United /
States Supreme Court as controlling /
because OF the fact that Hawaii exer-
cises the same privileges OF a State /
Supreme Court. yet i consider Ter
ritory to be but municipal govern
ment OF the United States. which may
be compared to a county in a State
The law giving the Hawaiian Supreme
Court the same powers as g State Su-
preme Court does not in my opinion
give them the right to overrule the
United States Courts. Still consider
that / am bound by the Supreme cour.
Of the Territory, and must follow its
decisions. SO you will consider this nor
\ decision but a purely academic dis
.ussion."
Mr.. Breckons stated that the very
'act that the United States Courts hac
decided that attorneys fees could not
good reason why the court should dele
gate the defendants in this suit To an
action at law. He stated further that
while he agreed that the amount OF at
orneys' fees was reasonable. yet he
lid not agree that the amount should
D. assessed against the plaintiffs.
Judge Humphreys stated at this
,oint that any damages allowed by him
would be for the total amount. and not
imply for attorneys fees. III the wal
liki Land and Loan Association and
lanes Mckee desired to reserve their
light To sue for damages upon the
,ond. the whole amount must be taken
nto consideration. as the court con-
idered the award OF any amount OF
damages a satisfaction OF the entire
Judgment Mr.. Milverton. who appear
d for the remaining two defendants.
aid that he was wiling TO withdraw I
he disputed clause as To the WAIKIKI
and and Loan Association, but that I
IL could not do so as TO Mckee until :
fter consultation. Mckee is the con- ,
ractor on the work. and the injunction ,
nay have damaged him by his being ,
nable TO complete the contract within
he specified time.
Eyx-fd introduced
rove the claims made by the various l
efendants. Manager Ballentyne OF /
,apid Transit Company testified that I
be company had purchased supplies d
D the amount OF $S,096. which were TO Y
g used on the Waikiki extension. and
ecause of the injunction this material
emained idle for four months. He tes-
fled also that the current rate OF in
crest upon money at that time was i
etween seven and nine per cent, max c
X the lost interest for the TOUR
iouths SIZES. Ip
Mr. McClanahan also took the stand o
, testify as to the charge OF $3.50 made /,
v his firm for services in dissolvtnS \,
lie injunction. and MIR. Milverton testi- =.
ID that Hatch & Silliman's charge toI
le Waikiki Land and Loan Associa-
on was 1915 and TO James Mckee the
Ime amount.
Judge Humphreys Immediately rem
.red a decision allowing the attor-
,ys' fees asked. though protesting
at he had his doubts as to the legal
Y of the action. but in view of the
ipreme Courts decision he would do 4
. He disallowed the claim of SlI2.6o
r interest claimed by the Rapid Tran
Company. saying he had grave
,ubts as to his right tn do so. and
ouId be on the safe side by disallow-
q the claim. He stated further that
!, believed the attorneys fees were
asonable as counsel on both sides
"a worked hard. and case had been
tremely well tried. The signing OF
. final decree was postponed until
onday. at which time James Mckee -
"a the Waikiki Land and Loan Asso-
A ton will be required TO put in proof
further damage IL they have sus-
lned any. The order was a tentative
e and will not be signed until Mon
y. a: