The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-10-18
THE LAW IN
FOUR CASES
Appeals Are Dismissed
BY Supreme
Court.

Four cases Were determined by unani-
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 a unanimous opinion of the SUI
preme Court, written by Justice Hart
well, the verdict for the plaintiff is sus-
tanned in the suit of Elizabeth K Pratt
VS.. Y. Ahin and zee Nam, partners I'M
der the firm name of Y Ahin 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
ner in the lessee's firm.
"a verdict for the plaintiff for $3.50
and interest at six per cent is not
| invalid for uncertainty in an action of
covenant for nonpayment of rent pay
able in semi-annua1 instruments, 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 a general
exception to the verdict as contrary to
| law and evidence
The last part refers to claim that
| $3.50 was paid to the PLAINTIFFS agent,
which the agent in evidence denied, and
the verdict was conclusive on that
point.
KALAMAZOO LOSES.
The suit of j. K. Kalanianaole VS.. w.
w. Dimond & Co., Ltd, assigning as
error the order of the First Circuit
Court in disrnissing an appeal taken
by the plaintiff in error from a judg-
ment by default made against him by
the district magistrate of Honolulu. C.
W. Ashford and C. A. Long for plaintiff
in error; Thayer & Hemenway for de-
PENDANT in error. The law given is
in effect that, though there is an appeal
from district magistrate, 1.-THE rea-
sons, if any exist, for the removal of
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, 5
Haw. 629 (18S6).
NATTER 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, commission of $707.74, be-
ing five per cent. commission on the
sum of s14,154.75, 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 admins
traitors excepting upon the actual coll
lection and disbursement of cash. On
the hearing it was urged that the court
should reverse the decision in the Mol
teno case, Hawaiian 2SS, and follow
the rule adopted in more recent cases
in New York and some other States.
..The decisions in the different States
tot
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 time
in our own courts it should not be de-
parted from unless a very conclusive
case is made out for the adoption of a
new rule. The statute is clear and posi- +,
tive in its terms, and scarcely allows
room for difference of opinion in the
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 to make an al
lowance. The only remedy is through |
the Legislature by an amendment of
the statute"
LAND TITLE.
Judge De Bolt is sustained in a de-
cision he made in the case of Maggie |
Fisher vs. Keukahi Wailehua and ]. |
Alfred Magoon, by a unanimous opin- |
ion of the Supreme Court written by |
Justice Hatch. The appeal of the de- |
PENDANTS is dismissed. E. NJ. Watson !
appeared for plaintiff; ]. Alfred Ma |
COON and J. Lightfoot for defendant |
Magoon. The syllabus explains the |
point decided. thus:
"a decd conveying fifty acres out of /