The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-11-05

instituted in a civil suit for the purpose
Of securing an attachment, which ne
claims is sufficiently averred 10 have
been obtained malicfousIy and without
probable cause.
Regarding The case as brought for
a wrongful attachment ancillary 70 the
main action and requiring malice and
also, in view perhaps Of the exemplary
damages sued for. requiring want OF
probable cause, but not requiring
favorable termination of the main
cause, the complaint is not de-
rnurrable for falling TO aver that the
main cause was brought maliciously
and without probable cause ana that
it terminated in the plaintiffs favor
While the complaint has the unneces-
sarv and embarrassing verbiage TO
which the court refers in the similar
case of Congdon V. Alderman, Haw.
569 the averment that in making the
complaint averring removal of prop
erty, etc, and praying for an attach
ment, the plaintiff acted with deIDer-
ate malicious intent and purpose
against this plaintiff and without prop
able cause may be treated as a SUM
cient averment of malice and want OF
probable cause in procuring the at
tachment which is good after verdict
and as against the objections named IN
the demurrer, 'for had the attention
of the court been specifically called TO
the form of the allegation the defect
might have been cured by amend
ment" Byersdorf " Stump, 80 Mimi.
439. The exception to overruling the
demurrer is therefore not sustained.
Referring next to the exception to
the denial of a nonsuit, which the
plaintiff claims was waived by the de-
PENDANT in going on with his defense,
it has been held here as elsewhere that
when the deficiency is supplied by one
side or the other the error of refusing
nonsuit is cured or is deemed to have
been waived. Elikapeka V. The Ookala
Sugar Company, 4 Haw. 626; Liena V.
Pahau, ID. 476; Carter V. Wing Chong
Wal Co., u ID. 296; Gagnon V. Dana,
SO n. H 264; Accident ms. Co. V.
Crandal, 12O U. S. 527; Northern Pa
cific Railroad V. Mares, 123 U. S. 40.
Columbia Railroad Co. V. Hawthorne,
IA L. S. 202, 206, refuses to consider
such an exception upon the ground
that "a request for ruling that upon
the evidence introduced the plaintiff is
not entitled to recover cannot be made
by the defendant, as matter of right,
unless at the close of the whole evil
dence; and that if the defendant, at
the close of the plaintiffs evidence,
and without resting his own case, re-
quests and is refused such ruling,
the refusal cannot be assigned for err
ror'' In the view which we have TAX
en- of the facts in this case, which bear
upon the question of probable cause,
it is unnecessary to pass upon this
exception.
There is no doubt that the court, and
not the jury, must pass upon the ques-
ton of probable cause or its absence
if there is no dispute about the facts
on which the plaintiff bases his claim
of want of probable cause or on which
the defendant bases his claim that it
existed. All Chew V. Wong Kwai, 3
Haw. So; Alau V. Parke, Ib. 2, re-
versing judgment for the plaintiff
on the ground that the court refused
to find upon the facts but submitted
to the jury the question whether there
was probable cause
The evidence was undisputed that
owing TO an unfortunate hotel venture
the plaintiff was financially embar-
raised and unable to pay his debts and
that with the exception of leasehold
of no immediate value to his creditors
his property was mortgaged at the
time when this collection of stamps,
which was attached, was sent by him
from the Haleiwa hotel on Oahu to an
employee in his Honolulu store, of
which the defendant was in charge,
with instructions to consign it to San
Francisco addressed to son of his
sister who was one of his creditors.
These facts became known to the de-
PENDANT and upon laying them before
his attorney he brought the attach
nent suit, reluctantly consenting to
the averment complained of upon the
attorneys advice that it was neces-
sary. The long and intimate business
relations between the parties imply
ing mutual confidence and esteem and
the plaintiffs reputation for business
integrity would, it is said, lead the
defendant to believe that the plaintiff
did not intend to defraud his creditors.
1t was mainly upon these considera-
tions that the trial judge denied the
defendants motion for new trial
expressing his opinion that the case,
instead of showing cause, showed the
lack of it and that the defendant did
not believe that the plaintiff entertain
ed a fraudulent intent.
But the facts were clear; presenting
a question for the court alone to pass
upon. The jury could, with no more
certainty than the court, divine the
inner or underlying motive of intent.
The plaintiff having long delayed pay
ment of this debt to the executor on
the ground that he had not the means
to pay it, it was reasonable to think
that his object in sending the stamps
away was to sell them and to do this
not in order to pay this debt, for if
that was his intention he would have
been likely to mention it to the de-
PENDANT. but with intent to use the
proceeds for other purposes which
would be legal fraud upon a creditor
who received no benefit from them.
1t was anything but unreasonable for
the defendant, as executor, to get the
property attached which was about to
be removed from the Territory in or