The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-12-08

was continued until Monday next,
when the Attorney General will have
made return for the High Sheriff The
petitioner is contesting his sentence for
keeping a lodging house without a Ii
cense. Judge Gear held the law uncon-
stitutional in another case, and now
Judge Robinson will pass on the ques-
ton Independently. Should his deci-
sion sustain the law, there will be a
chance to let the Supreme Court final
| ly settle the question:
| The Parker guardianship case is con-
tinued until January 4 al 10 a. m.
| The -Hackfeld injunction
suit relative to the Little Joker to-
bacco agency is set for January 16 at
10 a. m.
JUDGE GEARS FITTING.
Before Fastening out to board the
transport Sheridansfor San Francisco,
Judge Gear wrote and signed the fol-
lowing order:
I'm the Circuit Court of the First
Circuit Territory of Hawaii. At Cham
bers.
TT is hereby ordered that all matters
now pending before me at Chambers,
excepting cases on trial and not con-
Guided be transferred to the Hon. w.
j. Robinson. Third Judge of the Circuit
Court for the Territory of Hawaii
GEO. D. GEAR"
Dec. It'll, 1904"
JUDGE ROBINSON PRESIDES.
Judge Robinson takes charge of Grim
inal matters remaining eff the present
term, under the following order signed
by the three First Circuit Judges yes
terday:
1T is hereby ordered that from and
after Wednesday, December eth, A. d.
1904, Hon. w. j. Robinson, Third Judge
Of the above entitled Court, be and he
is hereby designated and constituted
Presiding Judge of the above-entitled
Court for and during the remainder of
the September, A. d. 1904, Term of this
Court, in the place and stead of the
Hon. George D. Gear, Second Judge of
said Court"
DIFFERENT CASE ENTIRELY.
Judge Robinson made an order over
ruling the plea in bar of defendant in
the covenant suit of Chung See VS.. Ka-
hanu Meek. 1t discusses the legal points
at length. The plea in bar set up a
judgment in the case of Kahanu Meek
VS.. Chung See and j. r. Mills, for an
undivided half interest in the premises
involved and s156.56 damages and COSTS
as an estoppel. That judgment was on
the strength of paramount title.
Chung See is now suing for breach of
covenant in lease which was assign
ed to the present defendant, who was
plaintiff in the lawsuit just mentioned,
claiming damages for the curtailment
of tenancy and the value of improve
ments.
The court finds that "a judgment
against a defendant is not conclusive
as to setoff or counter claim which
he might have pleaded to an action. In
the absence of a statute a defendant
having a cross-demand against the
plaintiff may, at his option, either use
it in the pending suit as a setoff, or
reserve it to be used as the basis of
an Independent action. This failure,
therefore, to plead it does not preclude
him from bringing a subsequent action
for it," The order concludes:
The case at bar presents an entirely
different cause of action from that pre-
sented in the former case, the judgment
in which is relied upon as bar to the
present action, and in my opinion such
Judgment operates in the case at bar as
an estoppel only as to those matters in
issue or points of controversy which
were actually litigated or decided in
the former action and upon which the
judgment therein was based.
TT is ordered that the defendants
plea in bar be and the same is hereby
overruled."
THE HOLT ESTATE
Judge Gear signed an order appoint
ing Carlos Long in place of Henry
Smith. resigned. as administrator de
bonis non cum testamente annexo of J
r. w. Holt who died on or about
some day in November, 1862. under
$4,000 bond. The estate is stated in
the order TO be of the value of $110,- |
000- George A. Davis represented the /
petitioner.
HABEAs CORPUS DENIED.
In the case of Fukunaga, the Japa- |
nesa fisherman imprisoned in default |
of paying a fine of $50 and costs for |