Hopkins v. Chung Wa

4 Haw. 650, 1883 Haw. LEXIS 19

• Court: Hawaii Supreme Court
• Decided: February 6, 1883
• Status: Published

Opinions

Opinion of the Court by

McCully, J.

I concur in tbe conclusions -readied by tbe Chief Justice, and substantially in tbe expression of bis views upon tbe two points to wbicb exception is taken. As bis decision lias been published, it will not be necessary to repeat tbe matter wbicb has been presented by him with ample learning. Tbise case must rest upon tbe rules of law declared in tbe Banbury peerage case, and most fully discussed in tbe House of Lords’ case of Morris vs. Davis. Tbe decision of the Chief Justice having been made a part of tbe bill of exceptions in this case, I take from it this statement of fact by tbe Court, viz. : “ In the case before me there was no attempt to show non-access of tbe husband. The evidence of an intimate acquaintance of tbe family is to the effect that, during tbe period covered by a year or more previous to tbe birth of plaintiff, Kaiawa and his wife lived together up stairs in a bouse in which Hopkins, senior, lived.” Upon this statement, it appears to me that by the third answer in the Banbury peerage case no other evidence is admissible to show that another person than the said husband was the father of the wife's offspring. If this rule be abandoned in the case of such facts as above stated, I am unable to rest upon any other definite rule for the determination of legitimacy. If we once admit evidence to show that while a wife cohabits with her husband, he not being shown to be incapable of begetting offspring, another man also shares her bed, and her offspring are to be assigned to the one or the other as they may appear from the complexion and other resemblances to belong to either, we shall find ourselves called upon to disturb the security of descents upon every suspicion of unfaithfulness, which, after a long time, may be offered in proof.

There is a special propriety in applying the rule in the case before us — where the question is of the legitimacy of the offspring of a Hawaiian woman, as the ancient Hawaiian rale was to regard chiefly the mother in questions of descent, for it could always be certainly determined who was the mother.

In respect to the term of the lease, I hold that the privilege of “ another term of ten years, or so long as he or his representatives may desire the same,”, gave the lessee nothing more, at the most, than a second term of ten years, and that this having expired he holds by a tenancy terminable by a sufficient notice to quit, and that the notice herein is sufficient.

March 21, 1883.

2.adhere to the opinion rendered by me February 6, 1883.

A. Feakcis Judd,

Chief Justice Supreme Court.

.March 21, 1883.