ARTICLE L.—EQUITY, ADMIRALTY, AND PROBATE MATTERS.

 

§1228.  All applications for the foreclosure of any mortgage of real or personal property; for the abatement of nuisance, public or private; for the annulment of charters and other corporate rights, or for restraint or prohibition in the exercise thereof; for proclamation by scire facias; for sequestration of property upon legal or equitable grounds; for divorces and separations; for the affiliation of bastards; for the partition and division of real property; for the admeasurement of dower; for enquiries of lunacy or insanity; or for enquires de ventre inspiciendo to determine the right of property, shall be by sworn petition addressed to some court, or justice, having jurisdiction thereof.

 

§1229.  Upon the filing of such petition, the court or judge shall determine, ex parte, upon the propriety of granting the process prayed for.  In cases not demanding secrecy, or occasioning doubt, the court or judge may, before issuing process, grant an order to show cause, and make any interlocutory order in the matter which may appear necessary to the ends of justice.

 

§1230.  When process is issued in any such case, it shall be served by delivery of a copy of the petition and of the summons to the defendants, or in case they cannot be found, by leaving such copy with someone upon the premises involved in the controversy, or in such other manner as the court or judge may direct.  The officer charged with service of the process shall also, if so directed by the court or judge, publish in the Government Gazette a notice of such suit or proceeding, calling upon all persons interested to appear and show cause against it, at the time and place appointed for the hearing.

 

§1231.  The court or judge may assess the amount due upon mortgages, whether of real or personal property, without the intervention of a jury, after hearing of the parties, and adduction of the proofs, and shall order judgment or decree to be entered for the amount awarded, and execution to be issued thereon, subject to appeal in all cases except where the judgment or decree is rendered by the Supreme Court.

 

§1232.  All prior and subsequent mortgage creditors, whose names are or can be discovered by the party foreclosing a mortgage, shall be made parties to his application, and if discovered before the day appointed for hearing, they shall be served with a copy of the petition.

 

§1233.  Mortgage creditors shall be entitled to payment according to the priority of their liens, and not pro rata; and decrees of foreclosure shall operate to extinguish the liens of subsequent mortgages of the same property, without enforcing prior mortgages to their right of recover.  The surplus after payment of the mortgage foreclosed, shall be applied pro tanto to the next junior mortgage, and so on to the payment, wholly or in part, of mortgages junior to the one assessed.

 

§1234.  The mortgagor, or any subsequent mortgagee, may appear and answer matter of fact or of law, pleadable in defense to the application or petition for foreclosure, and shall be allowed to show any matter in legal or equitable avoidance of the mortgage.

 

§1235.  All applications for the foreclosure of any hypothecation or other maritime lien, upon any vessel, domestic or foreign, or for the enforcement of the rights of salvors, or of material men, or for damages in cases of collision, or for the forfeiture of any vessel or other property for a breach of the revenue laws, or in causes of damage where the right of action arose without the jurisdiction of this Kingdom, shall be by sworn petition, in the nature of a libel, addressed to the Chief Justice, or first associate justice of the Supreme Court.

 

§1236.  Upon the filing of any such petition, the justice shall determine, ex parte, upon the propriety of granting the process prayed for.  He may, before issuing process, grant an order to show cause, if in his opinion advisable to the ends of justice.

 

§1247.  When process is issued in any such case, it shall be served by delivery of copy of the petition, and of the judge’s citation to the defendants, or in case they cannot be found, by leaving such copy with some one upon the vessel libeled for foreclosure, or attached for payment of a maritime lien or liability, or for a breach of the revenue laws; or if service cannot be made as aforesaid, it may be made in such other way as the justice shall specially direct.  As soon after service as may be, the marshal or his deputy shall, in the discretion of the justice, publish in the Government Gazette, for such period as he may deem equitable, a notice of such action or proceedings, attachment, intended foreclosure, or sale upon hypothecation, or maritime lien, or forfeiture, and inviting all persons interested to show cause against it on or before the day assigned for the hearing.

 

§1238.  In all such cases, the justice may hear and determine the controversy, without the intervention of a jury; or he may cause a jury to be impannelled, for the purpose of trying the facts involved in the cause, in accordance with the provision of Section 854.  After hearing of the parties, and adduction of the proofs, and the verdict upon the facts being rendered, or the decision being pronounced by the justice, he shall order the clerk to enter up judgment thereon, subject to appeal, or to a motion for a new trial, and to issue execution thereon as in cases not maritime.

 

§1239.  When an appeal is taken in any such cause, from a decision rendered by the justice without the intervention of a jury, the case on appeal shall be heard and determined by the Supreme Court in banco.

 

§1240.  Hypothecations and maritime liens shall follow the course of the law of nations, the law of the place of the contract, the law maritime and the law merchant in like cases, which the judge or court shall apply thereto, and to the apportionment and distribution of the proceeds arising therefrom.

 

§1241.  Matters of probate and of administration shall be heard and determined by the judge or court having jurisdiction thereof, without the intervention of a jury (a).

 

TO AUTHORIZE THE TRYING OF ISSUES OF FACT IN MATTERS OF PROBATE AND ADMINISTRATION BY A JURY.

 

WHEREAS, the 1241st Section of the Civil Code has been held not to permit an appeal to a jury, on the validity of any will, or testamentary devise, or any facts touching the descent of property, when such will or testamentary devise is a matter of investigation in probate; therefore, be it enacted, &c.

 

Section 1.  That from and after the date of the passage of this Act, whenever the value of the estate of any deceased person shall exceed five hundred dollars, any person claiming, before any judge, sitting as a court of probate, such estate, or any part thereof, or any interest therein, by virtue of any will or testamentary devise, or by virtue of the statutes of descent of property in this Kingdom, who may deem himself aggrieved by the decision of such probate judge at chambers, may, upon taking his appeal to the circuit court or Supreme Court, if any matter of fact is in issue, move the appellate court that the issue of fact may be tried by a jury, and his motion shall not be denied.

 

Section 2.  Whensoever an appeal may have been taken by the party against whom judgment has been rendered by the judge of probate at chambers, the appellee may likewise move the court that any issue of fact may be tried by a jury, and his motion shall not be denied.

 

Section 3.   On all appeals from a decision of a probate judge at chambers, whether the same be tried before a jury or before the court, without the intervention of a jury, the record of the court below may be read as testimony, and either party shall be at liberty to introduce such further testimony as he may be enabled, and also to re-examine orally before such court or jury on such appeal, any witness or witnesses whom he may have produced and examined on the original hearing at chambers.

 

§1242.  In all cases in which any person, whether a subject of this Kingdom or otherwise, shall decease in any part of this Kingdom leaving a will in this Kingdom of his or her property within its jurisdiction or abroad,  or having died abroad, and there left a will bequeathing or disposing of his or her property in this Kingdom, it shall be incumbent upon the person named as executor of such will, or on the person to be benefited thereby, or on the person in whose charge the same was deposited, or some person in behalf of those interested, to apply to some judge of a court of record, at chambers, for probate of such will, and for citation of the witnesses thereto, and of the next of kin of the deceased.

 

§1243.  It shall in like manner be incumbent on the person entitled and desirous to administer, according to the priority of right hereinafter prescribed, upon the estate of any person dying intestate in this Kingdom, and leaving property therein, or dying abroad and leaving property in this Kingdom, to apply by petition to some judge of a court of record, at chambers, for power to administer thereon.

 

§1244.  All applications for probate of wills, or for letters of administration, shall be by sworn petition, in which the party shall set fort circumstantially all the facts upon which his application rests.

 

§1245.  In the appointment of administrators upon the property of deceased person, the following order of priority shall be observed:

 

1.  The husband of a deceased wife;

 

2.  The wife of a deceased husband;

 

3.  The children being major;

 

4.  The brothers and sisters of the deceased;

 

5.  The cousins germain of the deceased;

 

6.  Any bona fide creditor applying for administration;

 

Provided, however, that the judge may, for satisfactory cause, disregard the order of         priority herein prescribed.

 

§1246.  The judge shall make the necessary orders for, and prescribe the length of time during which, executors and administrators shall give notice to creditors and debtors of the estate, and for the filing of inventories of the assets.

 

§1247.  Executors and administrators shall in no case be liable to suit, until the expiration of six calendar months after probate, or letters of administration granted. (a)

 

TO LIMIT THE TIME WITHING WHICH CLAIMS OF CREDITORS, AGAINST THE ESTATES OF DECEASED PERSONS SHALL BE PRESENTED, AND SUITE BE COMMENCED TO ENFORCE REJECTED CLAIMS; AND AMEND SECTION 1247 OF THE CIVIL CODE.

 

Section 1.   Immediately after the appointment of any executor or administrator of any estate, he shall advertise in the newspapers, published in the city of Honolulu, for as long a time as the court shall direct, at least once a week for four weeks, a notice to all creditors of the deceased to present their claims, duly authenticated, and with the proper vouchers, if any exist, even if the claim is secured by mortgage upon real estate, to him, either at his residence or place of business, within six months from the day of such publication.  And if such claims be not presented within six months from the first publication of the notice, or within six months from the day they fall due, they shall be forever barred, and the executor or administrator shall not be authorized to pay them.

 

Section 2.   Repealed 1876, Chapter X.

 

Section 3.   If the claim be rejected by the executor or administrator, a suit must be brought upon it against the executor or administrator, within two months after such rejection, or within two months after the same becomes due, or it will be forever barred.

 

Section 4.   It shall not be lawful to allow any claim that is barred by the Statute of Limitations of the Kingdom.

 

Section 5.   That Section 1247 of the Civil Code be, and the same is hereby amended, by inserting therein after the word “granted,” in the third line of said section, the words, “except in cases of claims rejected by the executor or administrator,” as provided in Section 3 of this Act.

 

§1248.   In all cases contemplated by the provisions of this article, the court or judge shall have power to issue all such letters rogatory, or commissions to take testimony, as may be necessary and proper in any particular case.

 

RELATING TO THE JURISDICTION OF THE PROBATE COURTS OF THIS

KINGDOM REPECTING THE SALE OF REAL ESTATE OF DECEASED PERSONS,

FOR THE PRUPOSE OF PAYING THEIR DEBTS…

 

WHEREAS, doubts have arisen as to the jurisdiction of the Probate Courts of this Kingdom to order the sale of real estate of deceased person for the purpose of paying their debts; and it is expedient to move such doubts, therefore,

 

Be it Enacted by the King and the Legislative Assembly of the Hawaiian Islands in the Legislature of the Kingdom assembled:

 

Section 1.   That the Probate Courts of this Kingdom have had from the time of their establishment, and now have, and hereafter shall continue to have jurisdiction to order and decree the sale of any real estate of deceased persons for the purpose of paying their debts, whensoever the personal estate of such deceased persons shall prove to be insufficient for the purpose.

 

RELATING TO THE WRIT OF HABEAS CORPUS.

 

Section 1.   Every person restrained of his liberty, except in the cases mentioned in the following section, may prosecute as of right, a write of Habeas Corpus, according to the provisions of this Act, to obtain relief from such restraint, if unlawful.

 

Section 2.   The following persons shall not be entitled, as of right, to demand and prosecute the said writ:

 

First. –Persons committed for treason or felony, or for suspicion thereof, or as accessories before the fact, to a felony, when the cause is plainly and specially expressed in the warrant of commitment, unless when excessive and unreasonable bail is required.

 

Second. –Persons convicted, or in execution upon legal process, civil or criminal.

 

Third.  –Persons committed on mesne process, in any civil action, on which they were liable to be arrested and imprisoned, unless when excessive and unreasonable bail is required.

 

Section 3.   Application for such writ shall be made to the court of justice authorized to issue the same, by complaint in writing, signed by the party for whose relief it is intended, or by some person in his behalf, setting forth:

 

First.  –The person by whom, and the place where, the party is imprisoned or restrained, naming the prisoner and the person detaining him, if their names are know, and describing them if they are not known.

 

Second.  –The cause or pretence of imprisonment or restraint, according to the knowledge and belief of the applicant.

Third.  –If the imprisonment or restrain is by virtue of any warrant or other process, a copy thereof shall be annexed, unless it shall be made to appear that a sufficient reason exists for not annexing the same.

 

Fourth.  –The facts alleged shall be verified by the oath of some credible person, to be administered by any person authorized to administer oaths.

 

Section 4.   The court or justice to whom such complaint shall be made, shall, without delay, award and issue a write of Habeas Corpus, which may be in the following form:

 

[STAMP.]

KAMEHAMEHA V., by the grace of God, of the Hawaiian Islands King.

To ________ greeting.

We command you that immediately upon the receipt of this write, you have and produce before our justice of ________ at ________the body of ________ who is unjustly imprisoned and restrained of his liberty, as it is said, to do and receive what shall then and there be considered concerning him in this behalf.

And have you there this writ, with your doings thereon.

Witness the Honorable ________ Chief Justice of our Supreme Court and Chancellor of our Kingdom, at ________ this ___ day of ________ in the year one thousand eight hundred and ________

[SEAL.]          Justice of________

 

Section 5.   When the writ is issued out of court, it shall be signed by the presiding justice, otherwise, it shall be signed by the justice issuing the same.

 

Section 6.   The court of justice issuing such writ, shall have power to issue subpœnas, to compel the attendance of witnesses, or the production of any documents.

 

Section 7.   Whenever the writ shall be issued by any circuit judge, the same may be made returnable before himself, or before the circuit court, or the supreme court, or any justice thereof.

 

Section 8.   Whenever the writ is returnable before the court, and the court shall be adjourned before it is returned, the return may be made before any justice of said court; and if the writ is in any case returnable before one judge, when the court of which he is a member, is in session, he may adjourn the case into court, to be there heard and determined in the same manner as if the writ had been returned into the same court.

 

Section 9.   If the name of the person by whom the prisoner is alleged to be restrained of his liberty, in unknown or uncertain, he may be describe by an assumed appellation, and whoever shall be served with the writ, shall be deemed to be the person intended thereby.

 

Section 10.   The person to be produced shall be designated by his name, if known, and if that is not known or is uncertain, he may be designated in any other manner, so that it can be known who is the person intended.

 

Section 11.   If the party is confined in any prison, or is in the custody of any civil officer, the court or judge granting the writ shall certify thereon, the sum to be paid for the expense of bringing him from the place of imprisonment, and the officer to whom the same is directed shall not be bound to obey it, unless that sum be paid or tendered to him.  But this section shall not be construed to require the payment in all cases, of the full statute fees, but the court in its discretion may require the payment of any sum less than the statute fees, and the residue shall be paid as in cases of the service of criminal process.

 

Section 12.   Any person to whom a writ of Habeas Corpus shall be directed, shall, upon payment or tender of reasonable charges and expenses for its execution, make return thereof with as much promptness as the nature of the case will permit.

 

Section 13.   The party making the return shall state therein, in writing, plainly, and unequivocally:

 

First.  –Whether he has or has not that party in his custody or power, or in any manner under his restrain or control:

 

Second.   –If he has the party in his custody or power, or under his restraint or control, he shall set forth at large the authority, and the time and whole cause of such imprisonment or restraint, with a copy of any process or warrant under which the party is detained:

 

Third.  –If he has had the party in his custody or power, or under his restraint or control, and has transferred such custody, restraint or control to another, or if he has any knowledge or suspicion that any other person exercises or claims to exercise such custody, power, restraint or control he shall state all that he knows or suspects.

  

And no return shall be adjudged sufficient when the respondent has once held the party in his custody or power, or under his restraint or control, unless it states fully all that the respondent knows or suspects, or alleges unequivocally that he neither knows nor suspects, no has any cause to suspect anything as to the custody or restraint of the party alleged to be detained, up to the time of making such return.

 

Section 14.  The return shall be signed by the person making it, and sworn to by him, unless he is a sworn public officer making the return in his official capacity.  Such return shall be evidence in the case, but not conclusive.

 

Section 15.  The person making the return shall bring the body of the party, if in his custody or power, or under his restraint or control, according to the command in the writ, unless prevented by the sickness or infirmity of the part.  But this shall not prevent the party making the return, if a private person, from demanding in advance actual necessary expenses of travel and transportation.

 

Section 16.  When from sickness or infirmity of the party he cannot properly be brought to the place appointed for the return, that fact shall be set forth, and if verified by affidavit and established to the satisfaction of the court or judge, the hearing may be adjourned to such other time or place, or such order may be made as justice may require.

 

Section 17.  Upon the return of the writ, the court or justice, shall proceed without delay to examine the causes of imprisonment or restraint; but the examination may be adjourned, from time to time as circumstances may reasonably require. 

 

Section 18.  If the party is detained on any process under which any other person, who can be notified without unreasonable delay, provided such person or his attorney be within the Kingdom, has any interest in his detention, the party shall not be discharged until such part or his attorney shall have had an opportunity to be heard.

 

Section 19.  If the party is imprisoned on any criminal accusation, reasonable notice shall be given to the Attorney-General, or his deputy, lawfully appointed, to appear and object if he thinks fit.

 

Section 20.  The party imprisoned or restrained may deny any of the facts sets forth in the return and may allege other material facts, and the court shall proceed in a summary way to examine the causes of imprisonment or restraint and to hear evidence which may be offered by any person interested or authorized to appear, both in support of such imprisonment or restraint or against it, and thereupon to dispose of the party as law and justice may require.

 

Section 21.  If no legal cause for the imprisonment or restraint shall be shown, the party shall be immediately discharged therefrom.

 

Section 22.  If the party is detained for any cause or offense, for which he is liable, he shall be admitted to bail if sufficient bail be offered, and if not, he shall be remanded, with an order of the court or justice, expressing the sum in which he shall be held to bail and the court at which he shall be required to appear.

 

Section 23.  If the party is committed on mesne process in any civil action for want of bail, and the bail which is required shall appear to be excessive or unreasonable, the court or justice shall decide what bail is reasonable, and shall order that upon giving such bail the party shall be discharged.

 

Section 24.  If the party is lawfully imprisoned or restrained, and is not entitled to be enlarged on bail, he shall be remanded to the person or officer having lawful authority to detain him.

 

Section 25.  Until judgment be given, the court or justice may remand the party, or accept bail for his appearance from day to day, or may place him under special care and custody, as circumstances may require.

 

Section 26.  Any person who shall neglect or refuse promptly to perform any duty imposed upon him by virtue of any writ of habeas corpus, conformable to be the provisions of this Act, shall be responsible in a civil action to any person aggrieved for damages occasioned thereby, and may be punished in any court of competent jurisdiction, by fine not exceeding five thousand dollars, or by imprisonment at hard labor not exceeding ten years, or both, in the discretion of the court.

 

Section 27.  The liabilities and penalties of the preceding section shall also be imposed upon any person who, having in his custody or under his power, any person entitled to a write of Habeas Corpus, and who shall, with intent to elude the service of such writ, or to avoid the effect thereof, transfer such person to the custody or place him under the control or power of any other person, or conceal him, or change his place of confinement.

 

Section 28.  Whenever it shall appear by satisfactory proof, by affidavit or otherwise, to any court or justice authorized by law to issue writs of habeas corpus, that any one is illegally held in custody, confinement or restrain, and that there is good reason to believe that such person will be carried out of the jurisdiction of such court or justice, or will suffer some irreparable injury before compliance with a writ of habeas corpus can be enforced, such court or justice may cause a warrant to be issued, reciting the facts, and directed to the marshal or his deputy, or to any constable, commanding such officer to take such person thus held in custody, confinement or restrain, and forthwith bring him before such court or justice, and held there until a writ of habeas corpus can be duly issued and served, after which the party alleged to be illegally restrained, shall be deemed to be before the court in obedience to such writ.

 

Section 29.  Any writ or process authorized by this Act may be issued or served on Sunday.

 

Section 30.  No person who has been discharged upon a writ of Habeas Corpus, shall be again imprisoned or restrained for the same cause, unless he shall be indicted therefore, or convicted thereof, or committed for want of bail, by some court of record, having jurisdiction of the cause, or unless after a discharge for default of proof, or for some material default in the commitment in a criminal case, he shall be again arrested on sufficient proof, and committee by legal process, for the same offense.

 

Section 31.  Nothing in this act shall be construed to restrain the power of any court of record to issue a writ of habeas corpus, ad respondendum,  when necessary, to bring before them any prisoner for trial, in any criminal cause, lawfully pending in such court, or on a writ of habeas corpus, ad testificandum,  to bring in any prisoner to be examined as a witness in any suit or proceeding, civil or criminal, pending in such court, when they shall think the personal attendance and examination of the witness necessary for the attainment of justice.  Such may be issued by any court of record in the exercise of a sound discretion, and with due regard to confliction interests and liabilities, anything in this Act to the contrary notwithstanding.

 

Section 32.  Nothing in this Act shall be construed to restrain the power of the Supreme Court, or any justice thereof, at their discretion to issue a writ of habeas corpus, ad subjiciendum,  in case where it is not demandable of right, and thereupon to bail any person for whatever cause he may be committed or restrained, or to discharge him as law and justice may require, except only, persons committed by command of His Majesty, the King, or the Legislative Assembly, in the manner and for the causes provided by the Constitution.

    

But such discretionary power shall only be exercised by the Justices of the Supreme Court.

 

Section 33.  All the provisions of this Act shall be subject to the right of His Majesty, the King, to suspend the privilege of the writ of habeas corpus, in cases of rebellion or invasion, conformable to the Constitution.

 

Approved this 19^th day of July, A.D., 1870.

 

 

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