lands across which it is desired to acquire such right of way, and all the facts and diagrams necessary for the understanding of the case.

§ 1778. After service of such petition as now required by law for hearings at chambers, the judge to whom the petition is addressed shall proceed to take testimony in regard to the propriety and utility of granting such right of way, and the amount of damages, both direct and consequential, which may be suffered by the owner or owners of the proposed servient lands. If such judge shall find that the acquisition of such right of way is reasonable, proper, and useful, he shall enter judgment authorizing the construction of the same and awarding damages; but no right of way as provided by such judgment shall be acquired unless the amount awarded and costs shall be paid by the petitioner within thirty days from the rendition of the judgment. Such payment may be made to the party in whose favor the award is given, or to the court.

§ 1779. Such judgment, if in favor of the petitioner, shall set forth the route of the proposed railway, drain, flume, water pipe or ditch, and what fences, bridges, and crossing places, if any, shall be maintained by the petitioner. After the construction of such railway, drain, flume, water pipe or ditch it shall be incumbent on the owner of such railway, drain, flume, water pipe or ditch, his heirs and assigns, to keep such railway, drain, flume, water pipe or ditch, fences, bridges and crossing places in proper repair, and for that purpose shall have the right of entry at all reasonable times; and such owner of such railway, drain, flume, water pipe or ditch, his heirs or assigns, shall be answerable at all times to the owner of the land, his representatives or assigns, for any damages which may occur or result by reason of any overflow of water, or other damage caused by the failure to keep such railway, drain, flume, water pipe or ditch, as the case may be, in proper repair, or failure to keep the fences and bridges and crossing places in proper repair. If the judge before whom any such case may be heard shall find that the proposed right of way is unreasonable or inexpedient, he shall enter judgment for the respondent.

§ 1780. If either party shall be dissatisfied with the decision of any judge before whom any cause arising under this chapter shall be brought, he may appeal to the supreme court, and his appeal shall be heard upon the record; but either party may adduce before such court further testimony. If the respondent shall appeal and shall not succeed in reversing the judgment below or increasing the damages by one-fifth, he shall pay the costs of the appeal, but in all other cases the cost of said appeal shall be borne by the petitioner.

§ 1781. The word "person," as used in this chapter, shall be held to mean not only individuals, but any and all associations or corporations, the commissioner of public lands, and shall also include owner as well as occupier.

NOTE TO CHAPTER 114.

S$ 1777-1781 are S. L., 1895, act 18.

CHAPTER 115.

SALE OF MORTGAGED PROPERTY.

§ 1782. When a power of sale is contained in a mortgage the mortgagee, or any person having his estate therein or authorized by such power to act in the premises, may, upon a breach of the condition,

give notice of his intention to foreclose such mortgage, by publication of such notice in the Hawaiian and English languages for a period of three consecutive weeks before advertising the mortgaged property for sale; and also give such notices and do all such acts as are authorized or required by the power contained in the mortgage; and he shall, within thirty days after selling the property in pursuance of the power, file a copy of the notice of sale and his affidavit setting forth his acts in the premises fully and particularly in the office of the registrar of conveyances in Honolulu. The affidavit and copy of the notice shall be recorded by the registrar, with a notice of reference thereto, in the margin of the record of the mortgage deed, if recorded in his office. WHEREAS doubts have arisen as to the true intent and meaning of section 1782; and whereas the true intent and object of said section and of any law to provide for foreclosure of mortgages without suit ought to be to reduce expenses and outlay to the mortgagor, while giving the widest publicity to the sale of the mortgaged premises, in order to obtain the greatest possible price: Therefore, Be it enacted, etc.

§ 1783. That the true intent and meaning of section 1782 has been and now is: That the notice of intention of foreclosure might also contain a description of the mortgaged property and a statement of the time and place proposed for the sale thereof at any time after the expiration of three weeks from the date when first advertised; and also that the affidavit contemplated by said section might lawfully be made by any person duly authorized to act for the said mortgagee, and in such capacity conducting the foreclosure.

§ 1784. If it appears by such affidavit that he has in all respects complied with the requisitions of the power of sale in relation to all things to be done by him before selling the property, and has sold the same in the manner required by such power, the affidavit, or a duly certified office copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.

§ 1785. If the mortgage was executed by a man having at the time no lawful wife, or if, being married, the wife of the mortgagor joined in the deed in token of her release of dower, the sale of the property in the mode aforesaid shall be effectual to bar all claim and possibility of dower in the property.

§ 1786. No sale or transfer by the mortgagor shall impair or annul any right or power of attorney given in the mortgage to the mortgagee to sell or transfer the mortgaged property as attorney or agent of the mortgagor. And when public sale shall be made of the mortgaged property under this chapter the remainder, if any there be, shall be paid over to the owner of the mortgaged property, after deducting the amount of claim and all expenses attending the same.

§ 1787. After breach of the condition, if the mortgagee, or anyone claiming under him, is desirous of obtaining possession of the premises for the purpose of foreclosure, he may proceed in either of the following ways, viz:

First. He may enter into possession and hold the same by consent in writing of the mortgagor or the person holding under him.

Second. He may enter peaceably and openly, if not opposed, in the presence of two witnesses and take possession of the premises, in which case a certificate of the fact and time of such entry shall be made and signed and sworn to by such witnesses before any judge of a court, and such written consent and such certificate shall be recorded

in the registry of conveyances, and no such entry shall be effectual unless such certificate or consent in writing shall be recorded within thirty days next after such entry is made.

§ 1788. The mortgagee in possession is authorized to make such expenditure as is necessary to carry on the estate or to keep the same in good condition, giving credit for the income, and the balance shall be placed in the account for or against the estate, as the case may be, if the mortgagor makes a tender for redemption.

§ 1789. Such possession obtained in either of the two modes above described being continued for the term of one year shall forever foreclose the right of redemption.

NOTE TO CHAPTER 115.

$1782 is S. L. 1874, ch. 33, §1 C. L., p. 563. $1783 is S. L. 1890, ch. 9. §$17841786 are S. L. 1874, ch. 33, SS 2-4. S$ 1787-1789 are S. L. 1874, ch. 48, C. L., p. 569. Cases in Hawaiian Reports: Watson v. Akanaliilii, 6 Haw., 572; Wailuku v. Dean, 8 Haw., 108.

CHAPTER 116.

BANKRUPTCY.

§ 1790. Every person owing debts to the amount of five hundred dollars who shall refuse or fail to make payment of any of his just demands for ten days after the same shall mature, or who shall depart the Territory with the intent to hinder, delay, or defraud his creditors, or who shall secrete himself, or keep his house, to hinder, delay, defraud, or avoid his creditors, or to hinder or delay the service of legal process for the collection of any debts, or who shall make any fraudulent or secret conveyance of his property to any person or persons, or make any secret removal or other disposition of his property for the purpose of hindering, delaying, or defrauding his creditors, may, upon the petition to any circuit judge by any creditor or creditors, the total of whose claim or claims shall amount to two hundred and fifty dollars, be declared bankrupt.

§ 1791. Any person owing debts to the amount of five hundred dollars, which have not been created in consequence of defalcation as a public officer, or executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity, may file his petition, verified by oath, before any circuit judge and ask to be adjudged a bankrupt, which petition shall be heard and acted upon forthwith.

§ 1792. Any petition to declare a person bankrupt shall be verified by oath, and state the act or acts of bankruptcy relied upon. Such petition shall be accompanied by a bond, the penalty thereof to be fixed in such a sum as the judge may think proper, which bond shall be conditioned for the payment of all costs of proceedings and damages accruing to the party petitioned against in case of failure to prove him bankrupt.

§ 1793. Upon receiving such petition and bond, as mentioned in section 1792, or when any person shall be declared bankrupt upon his own petition, as provided in section 1791, the judge shall issue an order to the chief sheriff of the Territory or his deputy, or to the sheriff of an island, as the case may be, to take possession of the debtor's store and counting-house, goods, chattels, property, books, and papers, and hold the same until the election or appointment of an assignee or assignees: Provided, however, That in all proceedings where any of the property

and effects of the debtor ought, in the discretion of the judge, to be sold and that such sale would be for the benefit of the bankrupt's creditors, that the said chief sheriff or his deputy, or the sheriff, as the case may be, shall, upon the order of the judge, sell the same and hold the proceeds of such sale until the election or appointment of an assignee or assignees.

§ 1794. After the filing of the petition and bond, as provided in section 1792, the judge shall fix a time for hearing the alleged bankruptcy, and notice of such hearing shall be made by serving a copy of the petition upon the party petitioned against, or by leaving a copy of such petition with some agent or person transacting the business of the alleged bankrupt, or at the last known place of residence of the alleged bankrupt, or in such other manner as the judge shall direct.

§ 1795. Whenever any person shall be declared a bankrupt, either upon his own petition or that of his creditor or creditors, he shall immediately file with the clerk of the court a schedule of all his creditors, with the amounts due such creditors, respectively, which such schedule shall contain all secured and unsecured accounts, and if secured, the nature of such security; he shall also file an inventory of all assets, including such as may be exempt by law, which schedule and inventory shall be made under oath.

ASSIGNEE AND PROOF OF CLAIMS.

1796. Upon the adjudication by the circuit judge of any person as a bankrupt the circuit judge shall order a notice to be published in some newspaper, notifying the creditors of such bankrupt to come in and prove and file their claims upon a day to be named in such notice, and shall also cause the chief sheriff, his deputy, or sheriff, as the case may be, or either of them, to serve notices by mail upon the creditors of such bankrupt of such meeting, and all creditors who have so proved and filed their claims on or before the day named in said publication and notice may proceed forthwith to elect one or more assignees of said bankrupt estate as hereinafter provided; and in case of failure of the creditors to elect an assignee or assignees on the day named in said notice and publication, then the circuit judge shall appoint an assignee or assignees, who shall immediately give notice by publication of such appointment or election. Any person duly authorized by law to administer oaths shall be, and he is hereby, authorized and empowered to take and administer oaths to all creditors proving their claims against the bankrupt's estate.

§ 1797. A secured creditor shall file with the clerk of the court a statement showing the amount of his claim and a description of the security; and shall therein state whether such security is relied upon, or whether such creditor intends to release the same and claim as an unsecured creditor only. If any secured creditor shall fail to file such statement within sixty days after such adjudication of bankruptcy he shall have no claim over against the estate of such bankrupt for any deficiency after the exhaustion of his security. If any such creditor shall, within sixty days after such adjudication, file with the clerk of the court a statement that he intends to rely upon both remedies, he shall thereupon proceed without any unnecessary delay to realize upon his securities, and, after exhausting the same, he may present a claim for the deficiency; but he shall participate only in such dividends as may be declared after the proof of his claim for such deficiency.

1798. Any creditor may object to the filing or proof of any

claim, and the hearing shall be had before the circuit judge, and any creditor whose claim is so objected to shall have no voice in the choice of assignees; provided, however, that the creditor or creditors making such objection file an affidavit that such objection is bona fide, and is not made for the purpose of depriving the creditors objected to of having a voice or vote in the election of assignees. Either party or the assignees may take an appeal from the decision of the circuit judge to a jury, and upon complying with the requirements in regard to appeals contained in section 1812.

The assignee or assignees shall within one month after his or their appointment, or within the same time after the receipt by him or them of any claim proved against the bankrupt's estate, notify the person or parties who have so proved whether such claim is disputed by him or them.

§ 1799. Creditors may prove their claims at any time before the discharge of the debtor, but shall participate only in such dividends as may be declared after the proof of their claims. Debts not due may be proved allowing a discount for interest, and all persons who are endorsers or surety for the debtor, or who have demands against him as drawer or endorser of any note, or upon any other demands or undertakings whatsoever, may be considered as creditors, provided that the bill, bond, note, or other contract be made before bankruptcy and that the debt demanded shall become absolute before the final dividend of the bankrupt estate.

§ 1800. Upon the election or appointment of an assignee or assignees, as the case may be, the chief sheriff, or his deputy, or the sheriff of the island where the property may be situate, shall immediately deliver all property in his possession or under his control to the assignee or assignees, and the election or appointment of an assignee or assignees shall immediately vest all property, real, personal, or mixed, of said bankrupt in such assignee or assignees.

§ 1801. Claims may be proved before any person duly authorized to administer oaths, by the oaths of the creditors, and to entitle any creditor to have a vote in the election of assignees, he must first prove his claim and file the same with the clerk of the court. All elections for assignees shall be by ballot, and no creditor to an amount less than one hundred dollars shall be entitled to vote. A majority in number and value of all the creditors who have proved their claims shall be necessary to elect an assignee or assignees, and upon a failure the circuit judge presiding shall appoint one or more assignees, as he may think proper. The circuit judge may order the assignee or assignees so elected or appointed to give bonds for the faithful performance of his or their duty, in such sum as he may deem sufficient.

§ 1802. The assignee or assignees shall have full power in his or their own name or names to sue for and collect debts due the bankrupt, and also bring any suit in his or their own name or names which has for its object the recovery of any portion of the bankrupt's property. The assignee or assignees may dispose of all property belonging to the bankrupt of whatever name, nature, or kind at either public or private sale. Such private sales, however, shall be valid only upon confirmation of the court having jurisdiction of the proceedings. If any assignee dies or becomes incapacitated to perform his duties the judge may appoint some other person to fill his place. The assignee or assignees may at any time examine the bankrupt upon oath before the judge as to such matters connected