UNITING SEVERAL CAUSES OF ACTION.

§ 1259. The plaintiff in a civil suit may unite several causes of action in the same complaint when they all arise out of

1. Contracts, express or implied; or,

2. Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same; or,

3. Claims to recover specific personal property, with or without damages for withholding thereof; or,

4. Claims against a trustee, by virtue of a contract, or by operation of law; or,

5. Injuries to character; or,

6. Injuries to the person; or,

7. Injuries to property. But the causes of action so united shall all belong to oue only of these classes, and shall effect all the parties to the action, and shall be separately stated.

8. Every holder of a banker's cheque, promissory note, bill of exchange, or other negotiable security, may join as defendants in any action for the recovery of the amount secured by any such instrument all or any of the antecedent parties to the same, whether maker, drawer, acceptor, or endorser.

AMENDMENTS.

§ 1260. Whenever a plaintiff in any action shall have mistaken the form of action suited to his claim, the court, on motion, shall permit amendments to be made on such terms as it shall adjudge reasonable; and the court may, in furtherance of justice and on the like terms, allow any petition or other pleading to be amended in any matter of mere form, or by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.

SET-OFF AND TENDER.

§ 1261. It shall be competent to the defendant in any civil action to plead an offset of like kind and denomination, existing in the same right between him and the plaintiff, or having made a legal tender of money in full payment of the plaintiff's demand, to plead such tender, and bring the amount thereof into court in bar of further interests and costs, after such tender.

§ 1262. If the demand set off is founded on a bond or other contract having a penalty, no more shall be set off than the sum equitably due. § 1263. If there are several plaintiffs, the demand set off shall be due from them all jointly; if there are several defendants, the demand set off shall be due to them all jointly, except as is provided in the following section.

§ 1264. When the person with whom the contract is made has a dormant partner, and a suit is brought on such contract, by or against such partners jointly, any debt, due to or from the person with whom such contract was made, may be set off in like manner as if such dormant partner had not been joined in the suit.

§ 1265. When an action has been brought by one person in trust, or for the use of another, the defendant may set off any demand against the person for whose use or benefit the action is brought, in like manner as if that person were the plaintiff in the suit.

§ 1266. The plaintiff shall be entitled to every ground of defense against such set-off of which he might have availed himself in an action brought against him on the same ground.

§ 1267. The statute limiting personal actions, if applicable to the setoff, shall be applied in the same manner as if an action thereon had been commenced at the time when the plaintiff's action was commenced.

DEPOSIT IN COURT, &C.

§ 1268. When it is admitted, by the pleading or examination of a party, that he has in his possession or under his control any money or other thing capable of delivery, which, being the subject of the liti gation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same, upon motion, to be deposited in court or delivered to such party upon such conditions as may be just, subject to the further direction of the court.

§ 1269. Whenever, in exercise of its authority, a court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the court, besides punishing the disobedience, may make an order requiring the chief sheriff or any of his deputies to take the money or thing and deposit or deliver it in conformity with the direction of the court.

DEPOSIT OF MONEYS IN THE PUBLIC TREASURY.

§ 1270. Whenever any money shall be paid into or deposited in any court of this Territory to abide the ascertainment of the right to such money or the determination or suit, the court shall have power, upon the application of any party interested or without such application, to order such money to be deposited in the public treasury, subject to the further order of the court.

§ 1271. Every administrator, guardian, receiver, or other fiduciary appointed by judicial authority may be required by order of any court or justice having jurisdiction of the subject-matter about which such fiduciary is employed, upon the application of any party interested or without such application, to deposit any money accruing in his hands in virtue of his trust in the public treasury, subject to the further order of some competent court or justice.

§ 1272. The provisions of sections 1270-1272 shall not be held to affect the power vested by will in any executor or guardian.

MISCELLANEOUS PROVISIONS.

§ 1273. The several courts of record may, from time to time, make such rules as they may deem necessary for the guidance of their respective clerks in making up calendars of the causes, civil and criminal, coming on for trial in said courts.

§ 1274. Causes placed upon the calendar shall be taken up and disposed of in the order in which they stand, unless postponed by the court at the request of the plaintiff or the defendant.

§ 1275. When a cause is reached upon the calendar, the plaintiff shall be called by the clerk, and if the plaintiff be not present nor represented by counsel who is present, or if he or his counsel, being present, decline to answer when so called, he may be declared nonsuit with costs. If, upon calling the plaintiff, he does appear, and the defendant, having joined issue, does not appear or auswer when called, the court

may order judgment by default to be entered against such defendant, and allow the plaintiff to proceed ex parte before the court or jury, and the verdict of the jury or decision of the court shall be rendered on such ex parte showing, unless good cause appear to the court for postponing the case.

§ 1276. At the trial of every civil suit, the plaintiff shall have the right to open the case, and first to introduce his witnesses and vouchers, and he shall also have the right to sum up the entire evidence and close the debate after the defendant has fully ceased. The defendant may cross-examine the plaintiff's witnesses, and he shall have the right to introduce his witnesses of defense when the plaintiff has rested his cause. The plaintiff may, in turn, cross examine the defendant's witnesses. When all the evidence has closed, the defendant shall sum up his defense to the court or jury: Provided, That the justices of the supreme court may, by standing rule, modify the application of the foregoing provisions, should it appear expedient to do so.

§ 1277. Whenever two or more actions are pending at one time between the same parties and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated into one.

§ 1278. The time within which an act is to be done, as provided in any part of this chapter, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.

NOTE TO CHAPTER 86.

§§ 1215-1217 are C. L., §§ 1099-1102; § 1218 is S. L. 1898, act 5; § 1219 is S. L.1888, ch. 57; § 1220-1251 are C, L., §§ 1103-1113, §§ 1115-1135; § 1252 is S. L., 1884, ch. 39; §§ 1253-1254, 1256-1269 are C. L., §§ 1138-1154; § 1255 is S. L. 1898, act 18; §§ 1270-1271 are S. L. 1862, C. L., p. 334; § 1272 is S. L., 1872, ch. 15; C. L., p. 334; §§ 1273-1278 are C. L., §§ 1161-1166.

Cases in Hawaiian Reports:

§ 1215 Frag v. Adams, 5 Haw., 668; Re Congdon, 6 Haw., 635; Cleghorn v. Macfarlane, 7 Haw., 317; Govt. v. Luce, 8 Haw., 18.

1216 McGrew v. McGrew, 9 Haw., 480; Waterhouse v. Spreckles, 5 Haw., 251.

§ 1217 Ashford v. Titcomb, 5 Haw., 490.

1218 Hoffschlaeger v. Han Same, 4 Haw., 418; Lishman v. Giles, 6 Haw., 262. 1220 Purdy v Janion, 2 Haw., 453; Byrne v. Allen, 10 Haw., 668.

§§ 1222-1226 Macfarlane v. Gilmore, 1 Haw., 43; May v. Haalelea, 2 Haw., 191; Hecia v. McKeague, 5 Haw., 102; Ashford v. Titcomb, 5 Haw., 490; Okuu v. Kaiaikawaha, 7 Haw., 312; Wailuku v. Dean, 8 Haw., 113; Walker v. Peterson, 9 Haw., 93; Bowler v. McIntyre, 9 Haw., 309; Ayers v. Mahuka, 9 Haw., 379; Dayton v. Hopkins, 10 Haw., 540; Gomez v. Gazette Co., 10 Haw., 108.

§ 1230 Bishop v. Everett, 6 Haw., 158.

§§ 1231-1226 Waterhouse v. Spreckels, 5 Haw., 251; Frag v. Adams, 5 Haw., 668; Kerr v. Hyman, 6 Haw, 301.

1232 Dowsett v. Drown, 3 Haw., 815; Dias v. Gililand, 5 Haw., 542; Puuku v. Kaleleku, 8 Haw., 80; High v. Govt., 8 Haw., 549.

1234 Nanie v. Namea, 3 Haw., 628; Un Wong v. Kan Chu, 5 Haw., 226; Est. Kanaina, 8 Haw., 636.

§ 1240 Holmes v. Soper, 6 Haw., 565.

1241 Day v. Day, 8 Haw., 715.

66 1242-1243 Macfarlane v. McCandless, Ayers v. Mahuka, 9 Haw., 379.

Ó 1244 Alau v. Everett, 7 Haw., 84.

§ 1245 Keanu v. Kino, 10 Haw., 106.

§§ 1252-1253 Ahin v. Widemann, 7 Haw., 334.

1255-1258 Thurston v. Ross, 8 Haw., 13; Board of Immigration v. Hakalau, 7

Haw., 254; Black v. Castle, 7 Haw., 273.

1259 Kerr v. Martin, 7 Haw., 657.

§ 1260 Dowsett v. Jones, 9 Haw., 517.

1261 Lazarus v. Trousseau, 4 Haw., 567; Watson v. Akanaliilii, 6 Haw., 571; Boyd v. Kaikainahaole, 10 Haw., 456; Lopez v. McChesney, 10 Haw., 225.

§ 1278 Reelection, 8 Haw., 603.

CHAPTER 87.

ABATEMENT OF ACTIONS.

§ 1279. The death of a plaintiff or defendant shall not cause an action to abate, but it may be continued as hereinafter mentioned; and where an action would but for the provisions of this chapter, by reason of the death of either party, and in which the proceedings may be revived and continued under this chapter, the defendant or person against whom the action may be so continued may apply by summons to compel the plaintiff, or person entitled to proceed with the action in the room of the plaintiff, to proceed according to the provisions of this chapter, within such time as the judge shall order; and in default of such proceeding, the defendant, or other person against whom the action may be so continued as aforesaid, shall be entitled to enter a suggestion of such default, and of the representative character of the person by or against whom the action may be proceeded with, as the case may be, and to have judgment for the costs of the action and suggestion against the plaintiff, or against the person entitled to proceed in his room, as the case may be, and in the latter case to be levied of the goods of the testator or intestate.

§ 1280. If there be two or more plaintiffs or defendants, and one or more of them should die, if the cause of such action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the action shall not be thereby abated; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants.

§ 1281. In case of the death of a sole plaintiff or sole surviving plaintiff, the legal representative of such plaintiff may, by leave of the court or judge, enter a suggestion of the death and that he is such legal representative, and the action shall thereupon proceed; and if such suggestion be made before the trial, the truth of the suggestion shall be tried thereat, together with the title of the deceased plaintiff; and such judgment shall follow upon the verdict in favor of or against the person making such suggestion as if such person were originally the plaintiff.

§1282. In case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may make a suggestion either in any of the pleadings, if the cause has not arrived at issue, or on the record, if it has so arrived, of the death, and that a person named therein is the executor or administrator of the deceased, and may thereupon serve such executor or administrator with a copy of the suggestion and with a notice signed by the plaintiff or his attorney requiring such executor or administrator to appear within twenty days after service of the notice, and that in default of his so doing the plaintiff may apply for judgment against him as such executor or adminis trator; and the same proceedings may be had and taken in case of nonappearance, after such notice, as upon a summons against such executor or administrator in respect of the cause for which the action was brought; and in case the defendant shall not have pleaded or answered before the death, the new defendant shall plead or arswer at the same time to the petition and suggestion; and in case the defendant shall have pleaded before the death, the new defendant shall be at liberty to plead to the suggestion only by way of denial, or such plea as may be appropriate to and rendered necessary by his character of exec

utor or administrator, unless by leave of the court or a judge he shall be permitted to plead fresh matter in answer to the petition, and the pleadings upon the petition and the pleadings upon the suggestion shall be tried together, and in case the plaintiff shall recover he shall be entitled to the like judgment in respect of the debt or sum sought to be recovered, and in respect of the costs prior to the suggestion and respect of the costs of the suggestion and subsequent thereto, he shall be entitled to the like judgment as in an action originally commenced against the executor or administrator.

1283. The death of either party between the verdict and the judgment shall not hereafter be alleged for error, if judgment be entered during the term in which such verdict was rendered, and if the plaintiff in any action happen to die after an interlocutory judgment and before a final judgment obtained therein, the said action shall not abate by reason thereof, if such action might be originally prosecuted or maintained by the executor or administrator of such plaintiff; and if the defendant die after such interlocutory judgment and before final judg ment therein obtained, the said action shall not abate if such action might be originally prosecuted or maintained against the executor or administrator of such defendant and the plaintiff, or if he be dead after such interlocutory judgment, his executors or administrators shall and may have a writ of revivor in the form contained in the schedule to this chapter, or to the like effect against the defendant if living after such interlocutory judgment, or if he be dead, then against his executors or administrators, to show cause why damages in such action should not be assessed and recovered by him or them, and if such defendant, his executors or administrators, shall appear at the return of such writ and not show or allege any matter sufficient to arrest the final judgment, or shall make default, and inquiry of damages shall be thereupon held, or the amount for which final judgment is to be signed shall be referred to the clerk of the court; and upon return of the writ or delivery of the order with the amount endorsed thereon to the plaintiff, his execu tors or administrators, judgment final shall be given for the said plaintiff, his executors and administrators, prosecuting such writ of revivor against such defendant, his executors or administrators, respectively. §1284. The marriage of a woman plaintiff or defendant'shall not cause the action to abate, but the action may notwithstanding be proceeded with to judgment; and such judgment may be executed against the wife alone, or by suggestion or writ of revivor pursuant to this act judgment may be obtained against the husband and wife, and execution issued thereon; and in case of a judgment for the wife, execution may be issued thereupon by the authority of the husband, without any writ of revivor or suggestion; and if in any such action the wife shall sue or defend by attorney, appointed by her when sole, such attorney shall have authority to continue the action or defense, unless such authority be countermanded by the husband, and the attorney changed according to the practice of the court.

§ 1285. The bankruptcy of or assignment by the plaintiff in any action which the assignees or trustees might maintain for the benefit of the creditors shall not be pleaded in bar to such action, unless the assignees or trustees shall decline to continue and give security for the costs thereof, upon a judge's order, to be obtained for that purpose within such reasonable time as the judge may order; but the proceedings may be stayed until such election is made, and in case the assignees neglect or refuse to continue the action and give such security within the time limited by the order, the defendant may, within eight days