The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-04-27
DE BOLT UPHELD
IN WASHINGTON
Bierce Wins Over Hutchins---
Celebrated Case---May
Be Rehearing.

the Judgment of the Supreme Court c
the Territory of Hawaii for defendar
in the suit of William W. Bierce, Ltd
v. c. J. Hutchins, trustee, was revers
!. ed by the Supreme Court of the Unite
, States.
the highest court of the nation, as b
gave judgment for the plaintiff whic1
the Territorial appellate court sc
aside.
1t. was to enable his case to be ap
pealed to Washington that an amend
ment to the Organic Act, introduced
as a rider to an appropriation bill, wa!
passed by Congress which permitted
appeals to be taken from the Territorial
to the Federal Supreme Court in civil
cases involving not less than $4,000 re-
gardless of questions of Federal law
Previously the Territory was in the
same position, relative to it's courts
as a State.
This, too, is the first civil case de.
cided under the amendment in ques-
ton. Though the decision in Harrison
". Magoon was the first heard of here
it was announced by cable promptly
on its rendition a few days ago. The
Bierce v. Hutchins decision was first
made known in Honolulu by the arri-
val to Mr.. Hutchins, in yesterdays
mail, of a printed copy Of it.
Mr.. Hutchins says that the matter
Of moving for rehearing Is under con-
sideration. 1t is felt that the Washing
ton court did not give a sufficient op-
~portunity for a thorough presentation
of the case. When counsel reached
Washington the court had put Hawai-
ian cases over for the vacation, but
nevertheless set this case for hearing,
at very short notice, on March Is.
Mr.. A1drich, who was Solicitor Gen
eral under the Harrison administra-
ton, presented the ase for the plain
tiff, n A. B.. Browne and Alex. But
ton of Washington and John w. Cath
cart, VIM. r. Castle and David T..
Wilmington of Honolulu were on the
brief for the defendant.
THE HAWAIIAN DECISION.
The Hawaiian decision said it was
an action of replevin for certain rails,
cars, locomotives, equipment and ma
terials of a railroad on the plantation
Of the Kona Sugar Co., Ltd, all Of he
property Of which company had been
purchased by the defendant at a re-
ceiver's sale. The plaintiff had deliv-
cred this railroad property to the COM
pany under an agreement clained by
the plaintiff to be a conditional sale.
This claim was sustained by Judge
De Bolt, who heard the case jury
waived, and he rendered Judgment for
the return of the property and $1,000
damages, and an alternate Judgment
for $22, 900 in case the property should
not be returned.
The case was taken to the Hawaiian
Supreme Court on many exceptions,
but that court took a view in which
it deemed it sufficient" as the opin-
ion says, ito decide the single point
as to whether the plaintiff is estopped
from bringing this action of replevin,
based on the theory that the title to
the property is in itself"-that is, in
the Bierce company-for the reason
that it had previously elected to pur-
sue an inconsistent remedy, namely.
by. bringing an action for the price
the property and TO enforce a ma
terialman's lien for the same, on the
theory that the title to the property
had passed to the vendee, the Kona
Sugar Co.
In the discussion of this question: the
court, by Chief Justice Frear, said: 1T
is a well settled principle of law that
when a person adopts one of two or
more inconsistent positions, whether in
litigation or in pals, he cannot after
ward repudiate that position and adopt
another"
Following out tilis line the conclu-
sion of the court was as follows:
THE exceptions, so far as they raise
the question of election, are sustained,
the judgment of the trial court is re-
versed and the case is remanded to
court for such further proceedings
as may be proper"
Kinney, McClanahan & Cooper, S. H.
Derby and former Supreme Court Jus,
G. A. Galbraith were the attorneys
for the plaintiff. and j. w. Cathcart,
& Wilmington and w. L. Whit,
ney for the defendant. The case was
argued on November Il, 1904, and de-
January %, 1906, and it's quoting
reference is 18th Hawaiian 41S.
THE FEDERAL DECISION.
The opinion of the United States
Court, delivered by Justice
Holmes, says:
1T is quite true, as we nave said,
the assertion of a lien is incon-
istent with the assertion of a title
Van Wrinkle ". Crowell, lac L. S. 42),
md, therefore, if a lien had been es- !,
by judgment or decree, the
tile would be gone by force of an
djudication inconsistent with its con- /
lnuance. But the assertion Of a lien /
y n who has title, so long as it is
My an assertion and nothing more, is
lerely a mistake. 1t does not purport y
D be a choice, and it cannot be one 4
ecause the party has no right to Il
hoose. The claim in the lien suit, as +
as said in a recent case, was not an u
but an hypothesis" 4
1T had been shown that the lien suit +
as dismissed before anything had Il
lone in it. q
On the question whether the sale to Il
lie Kona Sugar Co. was conditional,
lstice Holmes says: 81
Such sales sometimes are regulated u
7 statute and put more or less o.. the 8
'oting of mortgages. With the de- Il
of its effects there has been N