The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-07-15

I ton. If the bonds could be considered
| fair security at that time their value
is certainly largely enhanced by reason
/ Of the expenditure and development of
} the property of the COMPANY"
! Justice Perry is the author OF a
! unanimous opinion of the Supreme
I Court in the case of L. Ahlo vs.. c.
Bolte and the KaneOhe Ranch Co, Ltd.
/ This was an equity case in which plain
! tiff filed q discontinUance and then
! moved for a decree of dismissal with
/ out prejudice, stating that he followed
I that course because he believed it to
/ be to his best interests TO seek a rene
| dy at law Respondents moved for a
| decree dismissing the bill with preju-
dice, basing their motion on an affi-
daVit TO the effect that David Rice had
come all the way from Boston to testi-
! fy in the case and that they lad incur
red large expense and great inconVeni-
ence in preparing for the trial Plain
tiff made another move for dismissal
without prejudice.
Judge Gear declined to decide wIeth-
er the dismissal should be with or with
out prejudice, and signed decree read
ing, upon motion of plaintiff and pay
ment of costs to be taxed. the bill
stands dismissed He specifically held
that the question of whether the dec
rec would operate as a bar to other pro-
ceedings between the same parties and
concerning the same subject matter
was one to be passed upon when raised
in some subsequent proceeding. The
complainant appealed.
The Supreme Court says that in
equity a simple decree of dismissal
without saying anything more is pre-
sumed to have been upon the merits
and is a bar. Therefore. when a party
is entitled to a dismissal without pref
udice the court should say so in its
decree and thus avoid the possibility of
future controversy on that point. The
appeal is sustained and the cause re-
manded to the Circuit Judge with in
structions to amend the decree by adj
ding thereto the words without preju-
dice"
complainant; Robertson & Wilder for
respondents.
LIABILITY OF PARENTS.
Justice Galbraith writes the unani-
nous opinion of the Supreme Court
sustaining Judge Hardy of Kauai in
the case of Victoria by Pihaleo, her
next friend, VS.. Palama. The syllabus
reads thus:
I'm an action against the father for
damages resulting from the wrongful
act of his minor child, of the age of
seven years and nine months, it is not
error for the court to instruct the jury
that the father is responsible in dam
ages where 'the evidence clearly shows
that the minor itself would be liable at
the common law"
Victoria, a minor, by her next friend
brought an action in trespass against
the defendant to recover $1,000 damages
for personal injuries resulting from
gunshot wounds inflicted by the de-
PENDANTS son. The jury found a YER
dict of 5000 for the plaintiff. The opin-
ion gives the follow ing statement of
the cause of action:
1T appears that the defendants son, !
a minor. while playing with a shotgun, |
CLAIMING that he did not know it was !
loaded pointed it at the plaintiff who |
happened to be near by, and went |
through the act of shooting, with the |
result usual in such cases. The gun /
was loaded and the. charge of birdshot |
took effect in the plaintiffs face and !
one eye, completely destroying the !
sight of the eye and injuring her other |
wise The gun belonged to a Japanese |
employed by the defendant and was |
taken by the boy from the ver,inda of |
the house where it had been placed by |
the owner. The shooting was not in |
the presence of the father and it does |
not appear that he knew that the boy |
was playing with the gun prior to the |
Judge Hardy charged the jury that |
the defendant was liable for the injury |
done by his minor son. Defendant eX-
cepted to this instruction, contending
that the question of liability should
have been submitted to the jury under
proper instructions. On this exception
and on the refusal of the court to give
two instructions requested the defen-
dant appealed. Justice Galbraith says
Of the latter ground of appeal: These
instructions set out a reasonably fair
statement of the law relating to the
criminal liability of infants, but this
was not the law applicable to this
case"
The exceptions are overruled. there
lore the verdict stands. Smith & Lewis
md Louis ]. Warren for defendant; no
1rief for plaintiff.
ODD NOTES.
The First National Bank of Hawaii
md NJ L. Calm, assignee, have sew
rally discontinued their suits for debt
gainst the Hawaiian Supply Co, Ltd,
A'i tAS It II oman > L NIiu 4ISui SillCS ~
/ al, garnishees.
In the case of MacfarIane & Co, Ltd,
s. d. H. KahauleIio, defendant an
wers with a general denial.
Marian Reed Austin for herself an
wers the complaint in foreclosure Of
mortgage made by Geo. +. -,enton Z
gainst her and her husband, Herbert Z
:. Austin. She admits that she exc
uted a certain instrument the tenor 4
{ which she did not nor does not know {
kept by hearsay, but denies that it
as a mortgage and, if it was, that
le conditions have been broken to the
Stent of meriting foreclosure.
aughtsman for the same concern.
The trustees of the Lunalilo Estate
ave brought a suit to foreclose mort
age against NJ. G. Silva and w. Z.
Usher, receiver in the Silva divorce