The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1905-11-03
WITH GREAT
DIFFERENCE
t1ishton Tells Supreme
Court It Has
Erred.

Henry E. Highton, counsel for COM
/ plainants in the suit of V. o. Teixeira,
a. ]. Lopez, J. G. PerregiI, Victorino
Carreira and Manuel Souza against the
American Dry Goods Association. Ltd,
L. B. Kerr e. Co., Ltd, and L. 3. Kerr
has presented a strongly worded petit
ton to the Supreme Court, for re-
hearing. He says that the decision of
the court against the compIainants
was mot in conformity with the law
las therein declared" and that, upon
the evidence, the conclusions of fact
as stated by the court are evidently
linadvertent, and are not justified by
the record"
Mr.. Highton asks that the briefs be
Ire-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
lants and then takes from them the
benefit of the ruling and perpetuates
the identical error it had condemned"
He contends that, where the judge be-
low was found to have erred in con-
sidering a motion to dismiss the case,
the judges view of the testimony was
not legitimateIy before the appellate
court. The court had exercised the
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 he relates a story from jul
diciaI annals. thus:
In Elk Parte Archer California lat,
a young Kentuckian had brought a
slave to that State and proposed to
take him back. Habeas corpus pro-
ceedings were instituted and, in
lengthy and well reasoned and fortified
opinion, the Supreme Court held that
the alleged owner was neither a 'trav-
eler' nor visitor and, therefore, was
not entitled to hold his supposed chat
tel upon soil that had been constftu-
tiOnaliy dedicated to freedom. But
after an irrefragable argument, result
ing in this conclusion. it 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
". 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-
uIarity 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
and their counsel are the most i'm
portant and conclusive" stating as a
fact that blocks Of evidence that SEEM
ed to be relevant and material have not
attracted notice.
Counsel says he repeats, 'as a, cold
point OF RtWI tHaI the status oL Tue
appellants. as Portuguese citizens and
the disparity between them and the
appeliees, are matters which ought to |
materially affect the analysis of the |
proofs. Equality before the law is not |
a sounding phrase, but definite pr1n- |
cipley recognized and enforced both in |
the courts of the land and by the eX- |
ecutive department of the Federal Gov |
eminent 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 as |
heavier investments by weather. cor !
porations or individuals, then, in one |
instance at least, equality before the |
law cannot be practically enforced. |
This is not legal rhetoric but plain and |
obvious common sense"
In conclusion Mr.. Efghton reviews |
some of the undisputed evidence to |
show at least legal fraud in the I'M |
dermining of the American Dry Goods |
Association and it's ultimately complete |
wrecking and extinction, and, calling |
attention to the fact that neither de-
nor exceptions had ever been
made to the complaint, contends that
the case was prina facie proved and
that, even if it had not been proved,
the appellants are entitled to an ac-
counting, based on the unaudited |
books"