The Hawaiian gazette., 1904-10-18

| Four cases were determined by unanh-
nous opinions of the Supreme Court
rendered yesterday. In all the appeals
were dismissed The gist of each de-
liverance is given below.
MRS. PRATT WINS.
BY unanimous opinion of the Su-
lpreme Court, written by Justice Hart
WELL the verdict for the plaintiff Is sus-
tanned In the suit of Elizabeth X. Pratt
der the firm name of Y. Ahln Co. The
case was tried before Judge De Bolt
| C. w. Ashford appeared for plaintiff,
and Castle & Wilmington for defend
ants. The syllabus of opinion is as
follows:
| Assignment of lease by consent OF
lessor, followed by acceptance of rent
from the assignee, does not release the
lessee from its covenant to pay rent.
although the lease did not prohibit as
signment, and the assignee was a part
her III t1e leSSeeS f1rm.
"a verdict for the plaintiff for ss,S
and interest at six per cent is not
invalid for uncertainty in an action OF
covenant for nonpayment of rent pay
able In semi-annual instalments, fixing
the date from which to compute in
terest.
| Defense of payment is a question of
fact for the jury, concerning which no
question of law is raised by general
exception to the verdict as contrary to
law and evidence"
The last part refers to a claim that
$50 was paid to the plaintiffs agent.
which the agent in evidence denied. and
the verdict was conclusive on that
point.
KALANIANAoLE LOSES.
The suit of ]. X. Kalanianaole VS.. w
w. Dimond & Co., Ltd, assigning at
error the order of the First Circuit
Court in dismissing an appeal taken
by the plaintiff in error from a judg-
ment by default made against him by
-
w. Ashford and c. a. Long for plaintiH
In error: Thayer x Hemenway for de-
PENDANT in error. The law given is
in effect that, though there is an appear
from a district magistrate, 1.-The rca.-
sons If any exist, for the removal OF
a default should be presented to the
court which has ordered it," These
words are adopted from a former Ha..
waiian decision, Luce VS.. Chin Wa, 6
Haw. 629 QSS6)
MATTER OF COMMISSIONS.
Justice Hatch writes the unanimous
decision of the Supreme Court in the
matter of the estate of August Kraft.
deceased, sustaining Judge De Bolt in
refusing to allow w. L. Howard, adj.
ministrator, q commission of $707.7i, be-
ing five per cent commission on the
sum of l4,15i.15 the appraised value
of the real and personal property elect
ed to be taken by the legatees in lieu OF
the proceeds of the sale of such prop
erty.
1t is found that the practice for thirty
years in this jurisdiction, as we'll as the
existing law on the subject, forbids the
payment of commissions to adminis-
traitors excepting upon the actual col
lection and disbursement of cash. On
the hearing 1t was urged that the court
should reverse the decision in the MOI
teno case, 3 Hawaiian 2SS, and follow
the rule adopted in more recent cases
in New York and some other States.
"The decisions In the different States
are not uniform" the present decision
comments Their statutes upon this
subject differ in so many respects from
ours that little aid can be gained from
a consideration of the cases upon those
statutes in any question of construc-
ton of our own statutes. Aside from
this, however. we consider that where
a rule has prevailed for so long n time
IN our own courts it should not be de-
parted from unless a very conclusive
case Is made out for the adoption Of .,
new rule. The statute is clear and posi-
tive In its terms; and scarcely allows
room for difference OF opinion in the
construction of the same"
In conclusion, however, the court in
clines TO the view that the law might
properly be changed. saying: 1T would
appear reasonable that an executor IN
cases like the present should receive
some compensation for services both In
the care Of the real estate and In pre-
pairing for "A sale. The court however,
Is without authority 30 make AN al
lowauce. The only remedy n through
the Legislature by an amendment "
the statute"
LAND TITLE
Judge De Bolt Is sustained in a de-
rlslon he made IA the case 0f Maggis
Fisher ~, Keukahl Wailshua and J.
Alfred haHnDn Oy unanimous opln4
ION af the Supreme court written ~
Iustlrs liatfh 1hs appeal IF lhs de-
PENDANTS b. dismissed. ~ y Natspa
appeared fuf plslnua }, Alfred Ma
Rauu ana iAshifnol f9f Defendant
AaRuap Tine HsllabuH esplalna lie
point arFIaed ihuf
"a deed conveying hns acres opi -
A lsfHsr lrHi ur uHtia bui nni a.
tsnpiinn ~ d. aHa Nhf nafael conveyed
lahaH euuaI HH IA convey anHa g an NhH