after such neglect or refusal, by way of afterplea, plead the bankruptcy or assignment.

§ 1286.

"The Territory of Hawaii to

SCHEDULE.

esquire,

Chief Sheriff of the Territory or his deputy, greeting: "You are hereby commanded to summon

of

to be and appear before our supreme court (or circuit court, as the case may be), at the term thereof, to be holden at the court room of in the island of

on

the

the court house at day of next, to show cause why damages should not be assessed and recovered by A. B. (or C. D., as executor of the last will and testament of A. B., deceased, or as the case may be), against you (if against a representative, here insert as executor of the last will and testament of deceased, or as the case may be), on an interlocutory judgment rendered in favor of the said A. B. (or as the case may be), on the day of in the said court against you (or as the that in default of his doing

6.

case may be). And notify the said

so the said A. B. (or as the case may be) may have the said damages assessed and proceed to execution. Witness, etc.

NOTE TO CHAPTER 87.

§§ 1279-1286 are S. L. 1876, ch. 34, C. L., p. 385.

Cases in Hawaiian Reports: Bishop v. Lokana, 6 Haw., 557; Kukea v. Keahi, 10 Haw.,

505.

CHAPTER 88.

STATUTE OF LIMITATIONS.

THE TIME OF COMMENCING PERSONAL ACTIONS.

§ 1287. The following actions shall be commenced within six years next after the cause of such action accrued, and not after:

1. Actions for the recovery of any debt founded upon any contract, obligation, or liability, excepting such as are brought upon the judg ment or decree of some court of record.

2. Actions upon judgments rendered in any court not being a court of record.

3. Action of debt for arrearages of rent.

4. Actions for trespass upon lands.

5. Actions for taking, detaining, or injuring any goods or chattels, including actions of replevin.

6. Special actions on the case for criminal conversation, for libels, or for any other injury to the persons or rights of any, except such as are specified in the next two sections.

§ 1288. The following actions shall be commenced within four years after the cause of action accrued, and not after; actions for the recovery of any debt founded upon any contract, obligation, or liability, where the cause of action has arisen in any foreign country, except such as are brought upon the judgment or decree of a court of record. § 1289. The following actions shall be commenced within two years after the cause of action accrued, and not after:

1. Actions for assault and battery;

2. Actions for false imprisonment;

3. Actions for words spoken slandering the character or title of any person;

4. Actions for words spoken whereby special damages are sustained; 5. Actions against the chief sheriff, sheriffs, or other officers, for the escape of prisoners, or upon any liability incurred by them by the doing any act in their official capacity, or by the omission of any official duty.

§ 1290. In all actions of debt, account, or assumpsit, brought to recover any balance due upon a mutual, open, and current account, the cause of action shall be deemed to have accrued from the time of the last item proved in such account.

§ 1291. If any person entitled to bring any action in this chapter specified (excepting actions against the chief sheriff, sheriffs, or other officers) shall, at the time the cause of action accrued, be either1. Within the age of twenty years; or,

2. Insane; or,

3. Imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than his natural life; or,

4. A married woman;

Such persons shall be at liberty to bring such actions within the respective times in this chapter limited, after such disability removed. §1292. If any person entitled to bring any action in this chapter specified shall die before the expiration of the time herein limited for the commencement of such suit, if such cause of action shall survive to his representative, his executors or his administrators may, after the expiration of such time and within one year after such date, commence such action, but not after that period.

§ 1293. If at any time when any cause of action specified in this chapter shall accrue against any person he shall be out of the Territory, such action may be commenced within the terms herein respectively limited after the return of such person into this Territory; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this Territory, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.

§ 1294. Whenever the commencement of any suit shall be stayed by an injunction of any court of equity, the time during which such injunction shall be in force shall not be deemed any portion of the time in this chapter limited for the commencement of such suit.

§ 1295. When a suit shall be alleged by a plaintiff to have been commenced within the time required by law and such allegation shall be put in issue by the defendant, it shall be competent for the defendant to prove on the trial that the process issued by the plaintiff was not issued with the intent or in the manner required by law, or that any means whatever were used by the plaintiff or his attorney to prevent the service of the writ or to keep the defendant in ignorance of the issuing thereof.

§ 1296. Upon any such matter being established, or upon its appearance in any other way that any process was issued without any intent that it should be served, such process shall not be deemed the commencement of a suit within the meaning of the provisions of this chapter. § 1297. No person shall avail himself of any disability enumerated in this chapter unless such disability existed at the time his right of his action accrued.

§ 1298. Where there shall be two or more such disabilities existing at the time the right of action accrued, the limitations herein prescribed shall not attach until all such disabilities be removed.

§ 1299. The provisions of this chapter shall not extend to any action which is, or shall be, limited by any statute to be brought within a shorter time than is herein prescribed; but such action shall be brought within the time limited by such statute.

§ 1300. If any person who is liable to any of the actions mentioned in this article shall fraudulently conceal the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within six years after the person' who is entitled to bring the same shall discover that he has such cause of action, and not afterwards.

§ 1301. All the provisions of this chapter shall apply to the case of any debt on contract alleged by way of set-off on the part of a defendant, and the time of limitation of such debt shall be computed in like manner as if an action had been commenced therefor at the time when the plaintiff's action commenced.

§ 1302. Every judgment and decree, in any court of record of this Territory, shall be presumed to be paid and satisfied at the expiration of twenty years after the judgment or decree was rendered.

§ 1303. When a cause of action has arisen in any foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this Territory, except in favor of a domiciled resident thereof, who has held the cause of action from the time it accrued.

§ 1304. No suit brought for the recovery of any debt contracted after the promulgation of this section for spirituous liquors sold or furnished to any person, by any licensed retail dealer in such liquors, shall be maintained in any court of this Territory.

ACTIONS TO RECOVER THE POSSESSION OF LAND.

§ 1305. No person shall commence an action to recover possession of any lands, or make any entry thereon, unless within ten years after the right to bring such action first accrued.

§ 1306. If such right first accrued to any ancestor or predecessor of the person bringing such action or making such entry, or to any persons from, by, or under whom he claims, the said ten years shall be computed from the time when the right first accrued to such ancestor, predecessor, or other person.

§ 1307. In the construction of sections 1305-1313 the right to make an entry or commence an action shall be deemed to have first accrued at the times respectively hereinafter mentioned, that is to say:

First. When any person shall be disseized, his right of entry or action shall be deemed to have accrued at the time of such disseizin. Secondly. When he claims as heir or devisee of one who died seized, his right shall be deemed to have accrued at the time of such death, unless there is an estate by the curtesy or in dower, or some other estate intervening after the death of such ancestor or devisor, in which case his right shall be deemed to have accrued when such intermediate estate shall expire, or when it would have expired by its own limitation. Thirdly. When there is such an intermediate estate, and in all other cases where a party claims in remainder or reversion, his right, so far as it is affected by the limitation herein prescribed, shall be deemed to accrue when the intermediate or precedent estate would have expired by its own limitation, notwithstanding any forfeiture thereof, for which he might have entered at an earlier time.

Fourthly. The preceding clause shall not prevent any person from entering, when entitled to do so, by reason of any forfeiture or breach of condition, but if he claims under such a title, his right shall be deemed to have accrued when such forfeiture was incurred or condition broken.

Fifthly. In the cases not otherwise specially provided for, the right shall be deemed to have accrued when the claimant, or the person under whom he claims, first became entitled to the possession of the premises under the title upon which the entry or action is founded.

§ 1308. If, when such right of entry or of action shall first accrue as aforesaid, the person entitled to such entry or action shall be within the age of twenty years, or insane, or imprisoned, such person, or anyone claiming from, by, or under him, may make the entry or bring the action at any time within five years after such disability shall be removed, notwithstanding the ten years before limited in that behalf shall have expired.

§ 1309. If the person first entitled to make such entry or bring such action shall die during the continuance of any of the disabilities mentioned in the preceding section, and no determination or judgment. shall have been had of or upon the title, right, or action which accrued to him, the entry may be made or the action brought by his heirs, or any other person claiming from, by, or under him, at any time within five years after his death, notwithstanding the said ten years shall have expired.

§ 1310. If, when such right of action shall first accrue, the person entitled thereto shall be under any of the disabilities before mentioned, and shall die without having recovered the premises, no further time for making such entry or bringing such action, beyond what is hereinbefore prescribed, shall be allowed by reason of the disability of any other person.

§ 1311. No person shall be deemed to have been in possession of any lands, within the meaning of this chapter, merely by reason of having made an entry thereon, unless he shall have continued in open and peaceable possession of the same for the space of one year after such entry; or unless an action shall have been commenced upon such entry within one year after ouster.

§ 1312. Sections 1305-1313 shall take effect from and after the first day of January, A. D. 1899: Provided that action may be commenced upon any such right then existing, and which would otherwise be barred by the provisions of said sections, within one year from said date, and the same may be carried to final determination under the provisions of chapter 22 of the session laws of 1870 as heretofore exist ing; provided also that nothing herein shall be construed to extend the time within which any such action may be brought under said provisions.

§ 1313. If any action, of which the commencement is limited by sections 1305-1313, shall be abated by the death of any party thereto, or if, after verdict, the judgment shall be arrested, or if the judgment be reversed on error, the party bringing the action or any person claiming by, through, or under him, may bring a new action for the same cause, within one year after the determination of the original action, on the reversal of the judgment thereon.

NOTE TO CHAPTER 88.

§ 1287 is C. L., § 1036; § 1288 is S. L. 1892, ch. 26; §§ 1289-1302 are C. L., §§ 10371051; 1303 is C. L., § 1167; § 1304 is S. L. 1865, C. L., p. 511; §§ 1305-1313 are S. L.

1870, ch. 22, C. L., p. 540, but §§ 1305, 1306, 1308, 1309, 1312 are as amended by S. L. 1898, Oct. 19.

Cases in Hawaiian Reports: Pustan v. Rixman, 2 Haw., 730; Kahoomana v. Minister, 3 Haw., 635; Akowai v. Lupong, 4 Haw., 259; Kalakaua v. Keaweamahi, 4 Haw., 571, 577; Kaia v. Kamaile, 4 Haw., 352; Beckley v. Afong, 6 Haw., 547; Ahlo v. Hayselden, 8 Haw., 440; Defries v. Cartwright, 10 Haw., 249.

CHAPTER 89.

THE PREVENTION OF FRAUDS AND PERJURIES IN CONTRACTS, AND IN ACTIONS FOUNDED THEREON.

§ 1314. No action shall be brought and maintained in any of the following cases:

First. To charge an executor or administrator, upon any special promise to answer damages out of his own estate;

Second. To charge any person upon any special promise to answer for the debt, default, or misdoings of another;

Third. To charge any person, upon an agreement made in consideration of marriage;

Fourth. Upon any contract for the sale of lands, tenements or hereditaments, or of any interest in or concerning them;

Fifth. Upon any agreement that is not to be performed within one year from the making thereof;

Unless the promise, contract or agreement, upon which such actions shall be brought, or some memorandum or note thereof, shall be in writing, and be signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.

§ 1315. The consideration of any such promise, contract or agreement need not be set forth, or expressed, in writing signed by the party to be charged therewith, but may be proved by any other legal evidence. § 1316. No action shall be brought and maintained to charge any person upon, or by reason of, any representation or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance shall be made in writing and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.

§ 1317. No contract for the sale of any goods, wares, or merchandise, for the price of one hundred dollars or more, shall be allowed to be good, unless the purchaser shall accept part of the goods, so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or some note or memorandum, in writing, of the said bargain be made and signed by the party to be charged by such contract, or by his agent, thereunto by him lawfully authorized.

§ 1318. When any person, who is bound by a contract in writing to convey any real estate, shall die before making the conveyance, the other party may have a bill in equity in the supreme court to enforce a specific performance of the contract by the heirs, devisees, or by the executor or administrator of the deceased party, such bill to be filed within one year after the grant of administration.

§ 1319. The court shall hear and decide every such case, according to the proceedings in chancery, and shall make such decree therein as justice and equity may require.

§ 1320. If it shall appear that the plaintiff is entitled to have a deed of conveyance, the court may authorize and require the executor or administrator of the deceased party to convey the estate in like manner as the deceased person might and ought to have done, if living;