The Hawaiian gazette., 1905-11-03
WITH GREAT
DIFFERENCE

Henry E. Highton, counsel for COM
plainants in the suit OF v. o. Telxeira,
A. ]. Lopez. ]. G.. Perregil, Victorino
Carreira and Manuel Souza against the
American Dry Goods Association, Ltd,
l.. b. Kerr & Co., Ltd, and l.. b. Kerr.
has presented strongly worded petit
ton to the Supreme Court. for a re-
hearing. He says that the decision of
the court against the compliments
was mot in conformity with the law
as therein declared" and that, upon
the evidence, the conclusions of fact
as stated by the court are evidently
inadvertent, and are not justified by
the record"
Mr.. Highton asks that the briefs be
re-examined and alleges that the deci-
sion as made is not in harmony with
the system of United States jurispru-
dence. on the only question of mere
law In the case" the attorney says:
THE court holds in favor of the appel
lents and then takes from them the
benefit of the ruling and perpetuates
the identical error II had condemned"
He contends that. where the judge be-
low was found TO have erred in con-
sdering n motion to dismiss the case.
the judges view OF the testimony was
not legitimately before the appellate
court. The court had exercised 1.-The
exact function that belonged to the trial
judge or to an advisory jury" and this
action Mr.. Highton, with great defer
ence." submits was inadvertent and
cannot be legally sustained" In this
connection ne relates story from ju-
dicial annals, thus:
I'm Elk Parte Archer 8 California 147,
q young Kentuckian had brought a
slave to that State and proposed to
take him back. Habeas corpus pro-
,ceedings were instituted and, in a
lengthy and we'll reasoned and fortified
opinion, the Supreme Court held that
the alleged owner was neither tray
eler' nor visitor and, therefore, was
not entitled to hold his supposed chat
| tel upon soil that had been constitu-
ltionally dedicated to freedom. But,
after an irrefragable argument, result
ing in this conclusion, 1t was said that
the owner had not realized that the
constitutional provision Immediately
became effective and. therefore. an ex-
ception would be made In that in
stance, but that afterward the law
would be strictly enforced. According
lly, under a decision which declared
him free, the slave was remanded and
restored to the custody of his master.
The case was subsequently character
lied as having given the law to the
North and the niger to the South "
| With regard to the statement in the
decision that much that was imma-
terial was in the complaint, Mr.. High
ton argues from authorities that In
Questions of fraud the greatest partic-
lularity is required by equity both in
the United States and England. Fur
Their on he says that the court never
considered in its decision the facts
which in the minds of the appellants
land their counsel are the most i'm
Iportant and conclusive" stating as q
fact that blocks of evidence that SEEM
attracted notice"
Counsel says he repeats, "as colo
point of law, that the status of the
Appellants, as Portuguese citizens. ant
the disparity between them and the
lappellees, are matters which ought t
materially affect the analysis of the
proofs. Equality before the law is moi
a sounding phrase, but definite prin-
IClplt, cllloICtu potu IL
the courts of the land and by the ex'
ecutive department Of the Federal Gov
ernment. If the appellants here. with
out fault of their own and through the
diplomacy of the appellees. have lost
their Investment, as large to them al
heavier investments by weather. cor
porations or individuals. then, in on,
instance at least. equality before thu
law cannot be practically enforced
This is not legal rhetoric but plain an,
obvious common sense"
In conclusion Mr.. Highton review
some of the undisputed evidence 4
show at least legal fraud in the un
dermining of the American Dry Good
Association and its ultimately complete
wrecking and extinction. and. calling
, attention to the fact that neither de
murrer nor exceptions had ever beef
made to the complaint, contends "tha
the case was prima facie proved AM
that, even II 1t had not been proved
! the appellants are entitled to an &C
! counting, based on the unaudite
a books"
=