
    J. F. HACKFELD et al., vs. ING CHOI et al.
    
    Appeal erom the Decision oe Judd, Chancellor.
    July Term, 1883.
    Judd, C. J., and Austin, J. McCully, J., absent.
    In the absence of the Clerk of the Court from his office, a paper for filing should be taken to a Deputy Clerk, or left on the Clerk’s desk, and his attention called to it; if lost, meanwhile, it is at the risk of the person leaving it.
    Hie Court allows an appeal to be heard, in view of exceptional circumstances, although it was not perfected seasonably.
   Opinion oe the Court by

Judd, C. J.

This is a bill in Equity. The judgment of the Chancellor was filed May 2, 1883, and the case was put on the calendar to be heard on appeal by the Court in Banco. The counsel for the plaintiff moves to dismiss the appeal on the ground that it was not perfected seasonably. The affidavit of counsel for the defendant sets forth that on the 5th of May he filed a notice of appeal, and on the 10th day of May he filed a bond to secure the costs to accrue on the appeal, by placing it on the desk of the Chief Clerk, in his absence. The bond was not- found by the Clerk until some time in June, when the Clerk was making up the calendar of cases for the July term. The affidavit further sets forth that, within ten days from the date of the decision, the defendant asked the Clerk to make up the costs in the said case, which the Clerk promised to do. The affidavit sets forth that the Clerk (our late respected and much lamented friend, Mr. Barnard, now deceased,) was ill and absent from his office. The costs were finally paid some time in June.

Buie 4 of the Supreme Court requires that appeals from a Justice at Chambers must be taken within ten days from the rendition of the decision, by paying costs accrued, and filing with the Clerk of the Court a bond in the sum of $50 for costs to accrue, with the notice of appeal.

¥e think that when a paper is presented for filing and the Clerk is absent, it should either be taken to the Deputy Clerk, or left on the desk of the Clerk, and his attention should be called to it seasonably, and if lost meanwhile, it is at the risk of the person leaving it. The Court is, however, aware of the embarrassment occasioned to counsel by the sudden atta'cks of illness to which our late Clerk was subject, and in view of these exceptional circumstances, which may never again occur, we are inclined to excuse the counsel for appellants, and to allow his appeal, and it is so ordered.

B. F. Biekerton, for plaintiffs.

W. B. Castle and C. Brown, for defendants.

Honolulu, July 27, 1883.  