The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1911-01-06

Court has authority or Jurisdiction 20
Issue n process OF the court compell-
Ing the Consul OF n foreign country
10 bring a document which under his
instructions. or alleged instructions.
he could not properly bring. My view
Of the entire matter is briefly this.
The plaintiff is this case has brought
an action for criminal libel against
the defendant and has introduced in
evidence language which on It's face
constitutes a libel. Counsel for the
plaintiff then very reasonably says,
that, the language constituting prima
facie libel, the burden is upon the de-
PENDANT to prove that It Is true. But
the burden OF going forward at this
present time is upon the plaintiff, be-,
cause of this: It certainly is an
axiom of law that when the evidence,
the controlling evidence, in any case
is shown to be in the control ana
custody of one of the parties to
suit and that party refuses to pro-
duce this controlling evidence the law
| creates presumption which is hostile
to the party by virtue of this fact.
and in this case l should say that
J the Consul, having shown on the
stand that the order on which he
relies as being his justification for
taking this census and which the de-
! PENDANT relies on to show the consul
! had no authority to take the census,
! is in his sole custody and possession
! Che mas made that clear by his own
| admission on the standl in that case
the law takes the presumption that f
the Consul refuses to bring that do
! Cument into court it is because if the
document were produced in court the
! contention of defendant would be
! found to be true We must distin-
guish between the burden Of proof and
the burden of going forward; the
burden of proof is still on the defen-
dant, but the plaintiff having shown
that he holds in his possession this
document upon which defendant re-
lies the presumption exists that the
order if produced would have the eff
feet Of supporting the defendant. In
my view at the present time, the
plaintiff is in this dilemma If he
feels that for patriotic reasons he can
; not bring this document into court
4 a presumption has arisen which is
: hostile to him and the court will have
tC hold that the contention of the de-
fendant that tile charge was true must
r be accepted. The plaintiff now can
bring this document into court and
rebut this presumption and then the
burden of proof is shown at once to
lie on the defendant"
Attorney Mcbride argued that a
privileged communication was ex-
empt from the general rule Sof pre-
sumption and the court had no power
to draw any inference from the nom
production of a privileged document
He challenged Judge Humphreys, or
any other attorney, to prove that the
court on the cross examination of a
witness could direct that witness to
leave the stand and proceed to get a
= paper and bring it into court.
Judge Lymer replied that he appre-
ciated the question of privilege but
held that the Consul had waived that
!! privilege by bringing the present suit
which put at issue at once the exist
ence or non existence of the order
and the nature of the order. He
doubted whether the court had power
to Issue process to demand the pro-
duction of the document, but he
! thought that that was beside the
. question.
Mcbride then asked whether the
/ court would hold, even if the consul
, had acted with or without authority,
, or in excess of authority, that it
would negative that portion of the
libel.
Judge Lymer replied in the mega
tive. He held that the presumption
existed that the order did not dis
close any authority, not that the con-
sui had forced the census"
Mcbride wanted to show that the
document was privileged and offered
to produce. authorities, while Hum
phreys was ready with pile of
books to show there was no privilege,
or if there were that it had been
waived
The point was left over for consi-
deration at later time, Judge Lymer
remarking that he would like Nc
= Bride to submit his authorities, as
the question was an interesting one.
The hearing of evidence was then
! proceeded, with,