1 Haw. 45 (Haw.Super. 1851), Howard v. Hubertson

Citation:1 Haw. 45
Opinion Judge:LEE, CHIEF JUSTICE
Party Name:WILLIAM HOWARD v. GEORGE F. HUBERTSON.
Attorney:Mr. Harris and Mr. Burbank for plaintiff. Mr. Bates and Mr. Montgomery for defendant.
Judge Panel:LEE CHIEF JUSTICE
Court:Superior Court of Hawai'i
 
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Page 45

1 Haw. 45 (Haw.Super. 1851)

WILLIAM HOWARD

v.

GEORGE F. HUBERTSON.

Superior Court of Hawai'i.

April Term, 1851.

Syllabus by the Court

The Court laid down several rules relating to the postponement of trials.

A ship, if pawned, cannot be used by the pawnee without the consent of the pawner.

Mr. Harris and Mr. Burbank for plaintiff.

Mr. Bates and Mr. Montgomery for defendant.

LEE, CHIEF JUSTICE

This was an action brought to recover the value of certain vessels, which the plaintiff alleged he placed in the defendant's hands, as a pledge or security for his appearance at the last January term of this Court, Mr. Hubertson having signed his bail bond. He further alleged that notwithstanding he made his appearance at the time named in the bond, yet the defendant refused to restore the vessels.

The defendant's counsel moved for a continuance of the trial, on the usual affidavit of the absence of a material witness, who would swear that one of the vessels set forth in the plaintiff's petition, was never pawned to the defendant. This motion was opposed by Howard's counsel, and the Court laid down the following rules relative to the postponement of trials.

1. At least two days' notice of an intended application to put off a trial should be given to the plaintiff's attorney, with a copy of the affidavit to be produced as a foundation for the motion, if the necessity for it was at the time known to the defendant.

2. When the ground of the application is the absence of a material witness, the affidavit should state the name of the witness, the facts he is expected to prove, and that without his testimony the defendant cannot safely proceed to trial. It should also state what exertions have been used to procure the desired evidence, and at what time the witness is expected to return.

3. Where the adverse party admits, that the absent witness would, if present, testify to the facts stated in the affidavit, a continuance will not be granted.

The plaintiff's counsel admitted the facts which the defendant stated that he expected to prove by the absent witness, and the Court ruled the parties to proceed to trial.

It appeared in evidence that Howard being arrested and imprisoned on a charge of assault and battery, gave bail for his appearance at the last January term, and that Hubertson became his...

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