The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-10-25
NOT HELD
FOR FIRE
De Bolts Decision
In Stockyard
Case.
RETURN MADE TO
AUSTIN MANDAMUS
New Phase of the Holt will Case.
Brown AUST Return to the
Territory.

Judge De Bolt rendered written
opinion yesterday everything the de-
Imurrer in the case of NJ L. Smith VS..
Honolulu Stockyards Co., and holding
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 s1S,SO0 and the
structure to be completed by August
Both. Under the contract Smith was to
receive the sixth payment of $4,000 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 Stcckyards 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
inasnuch 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: II hold the complaint
to be sufficient in law and accordingly
override the demurrer, granting de-
PENDANT leave to answer within such
time as may be fixed upon applica-
tiot,."
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
in 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
titionef 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
whereon 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, IL 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 goth day