The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-11-16
BROWN WINS
LONG FIGHT.
appeal to Washington
Will Probably Be
Taken.

tory, in the long fight for Hilo water
/ front property 1t is said that thu
Spreckelses will appeal to Washing
ton
In a unanimous opinion of the Su
preme Court, written by Chief Justice
Frear. the Judgment of the First Cir
cult Court is affirmed in the case OF
| Charles \. Brown VS.. John D. Spreck-
| els. AdoIph 3. SpreckeIs and c. August
| Spreckels, partners under the name OF
j. D. Spreckels Bros, and A. G. Ser
rao, D. Lycurgus, S. c. Guerrero, w
| c. Borden. w. K. Akana, Wing Sing,
| Kwong We Kee, c. Aho, Peter Miguel,
| Tang Sing and Mrs John Waterhouse.
The judgment affirmed is for plant
| iff, Brown.
| Exclusive of the syllabus reaching
into its fifth page, the opinion of the
court occupies % pages of typewrit-
| ing.
This case has been tried over and
over again, in three circuits and more
| than once in each of two circuits. as
the following historical sketch at the
beginning of the opinion shows:
This is an action of ejectment for
two pieces of land, referred to as the
Bates and Kalaeloa lands, on the wa
terfront at Hilo. 1t was begun in the
fourth circuit in 1899. At the first trial
the jury disagreed. At the second a
nonsuit was ordered. which was set
aside by this court GA Haw. 399). At
the third trial. in the third circuit, to
which the venue was changed, the jury
disagreed At the fourth trial, in the
first circuit to which the venue was
changed. the jury disagreed. 1t was
then held that the venue had not been
changed from the fourth circuit on the
theory that the order for the change
was void owing to disqualification Of
the judge, but this court held other
wise and directed by writ of manda-
mus the court in the first circuit to try
the case dc Haw. 476). Then after a
long and careful trial the plaintiff OBJ
tanned a verdict which the defendants
now seek to have set aside on writ of
error
j. A. Magoon and ]. Lightfoot for
Ballou Chimney, McClanahan & Derby
and Ballou & Marx on the brieD for
the defendants
It was on the last of the trials that a
question of publication in the papers
arose. The Bulletin published a report
Of a remark made by Judge De Bolt.
trying the case, in the absence of the
jury while ruling on a motion for a
directed verdict in favor Of the
plaintiff. In declining to grant the mo-
ton, as there was still a doubt in his
mind, he said that, should the jury
render a verdict for the defendants and
should a motion to set aside that YER
dict be made, he might do so
Upon an Advertiser reporters inter
viewing the judge on this report, the
latter admitted its accuracy, saying he
made the remark to save the time of
counsel in arguing for the motion.
When, the same day, the judge re-
quested the jury not to read the papers
of that afternoon and next morning,
counsel for defendants said they had
no objection to allowing the jury to
read the papers. Judge De Bolt then
withdrew the request, but there was a
row over the publica tons next morn .
ing.
The Supreme Court finds no reason
for saying that the judge erred in
everything the motion for a new trial
on the ground of such publications
Judge De Bolt had taken the waiver of
defendants to publicity as it was made
With regard to the contention that the
article was far more dan !
gerouS thar that in the Bulletin mas
much as it contained an interview
with the Judge etc, the court COM
ments on the fact that no complaint
was made about the Advertiser article
before the case was submitted to the
jury. Indeed the court says, at |
would probably have been easy to have
prevented the morning paper from re-
ferring to the matter at all; at any
rate. apparently no attempt was made
% do So"
Affidavits of the jurors that the
newspapers had not Influenced them
should rot have been admitted on the
notion for a new trial, the opinion
says, adding: IF the trial judge had
BASED his decision upon them the re-
suit at most would be not the re-
-ersal Of the verdict and the ordering
If new trial. but the reversal of the
decision on the motion for a new trial ,
md a remand Of the case to the judge
or passing again upon that motion.
SUIT apparently the decision was un-
influenced by these affidavits and ,
would have been precisely the same ;
f they had been rejected and in our 8
opinion that decision was right" :
LAW OF THE CASE. E
Following is the syllabus of opinion: I
A deed of release, when made for i
considera ton. may be construed as a t
eed of bargain and sale, in order To c
ffectuate the intention of the parties c
nd avoid its validity because of the
elea sees want Of possession g
Even if such a deed would not be t
aid under such circumstances At h
ommon law, it would be valid here r
nder Hawaiian usage and decisions f
An award and patent described f;
nd