OCR Interpretation


The Hawaiian gazette. (Honolulu [Oahu, Hawaii]) 1865-1918, May 09, 1877, Image 4

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Persistent link: http://chroniclingamerica.loc.gov/lccn/sn83025121/1877-05-09/ed-1/seq-4/

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AGRICULTURAL IMPLEMENTS !
PARIS PLOWS, PARIS PLOWS, PARIS PLOWS!
Warranted the Genuine Article, and none made but for
CASTLE & COOKE,
sole jaxsosKrtPs
And to Arrive by the Bark Coringa, from Boston.
Trr. are prcimrcd to rirr these plows, so weli. and favorably
kstwa at tat best bruUa; np ricw for Cane Land crer J in M, eoaetrr.
At Lower Rates than Ever 'before Sold.
Extra Seams, Handles, Points and Sides also to urrive per Corinffa.
HAWAIIAN GAZETTE
DEVOTED TO HAWAIIAN PROGRESS.
HEXRY 51. WHITNEY-.
GEORGE IL DOLE, -Associatk Knrron.
. ALSO. ON HAND AND TO ARRIVE.
jrU Xa, saw I I OrnkMni Hoes. Cane Kieet best quality.
SutnCui Steel Horn Tfwt. I J""' Snerelt and Spade,.
2fo. Se i I Cast Steel l!.Ime Hut Wow,. M l aoa ier make, cf :-r.df . ui Miorell aijo
r.ri. Mtw, Jfa, . rTr Plow lr one r to I on n.nd.
lef eiMuT lllee, Sraoe. Ate. .Ue. Pick and .s-IeJce bandies.
Im.m Be J.V 1 ul :. S-U ul S-5 reek, rule. Tra.h Ftk.. Bath ?Jlk'.
Met u Ast Vtuaeks. Put Am. 1 Aim. Care riatcbet,, Ceatniactl Brasbet,
Csntrifuga! Wire riates, 12 ar.114 inch by 8 feel. Fins.
lUliac'iied Clotb, lllWti tsesa,
y IWt crwaaitj Lactnc Leather
ienor Assortment of Machine Bolts and Cold Punched Nuts.
Luther JWhjc. Zgi, i ui j: lata,
ASep
Tk ha tt 1 in. wire V; Ifi inch Us;.
liirtac. acnuweu Sr-fte,.
TYricftt Sik. 2 M 4 Jack, prvti,
H..f Irax. i u4 .
Bhfti, Iu44ft It;, Ceatrcr Keels cl Ben,
'Wrcsehe,, ta 21 Laett. A. O. Ce' Eike,
Strte Ssa.et. NV X liA fore and hied.
.1 SUFERIOK STOCK OF FILES,
iXD JIALF J2 O CXD,
HiotstT frrif. A Otats,
Dewncr's and rrttt't Kerosene Oil,
Tarr-eatiae. Varnish. ltotWd and IUw OH,
CtVl, Ox Bows. 15, 1J and 3 inch.
A fall assortment Auger Bit. Wl caeKty.
Bel braces. Sket, Firmer and Framing Chisel. I
la - icrfa.
BarMen' Material.. Locks, BatU, Scrt.l,
Pa&lwcki, Disnm, Leeds, Jte-
EOUXD. SOUARE TAPJSX,FZAT
ts o ,
I Ftee.t. Tine and Median T. ..( Cttn. i
I Haul, Ftte and MJ.om ITbUt All Wol riannel.
WEDSESDAY. 3TAY 9. 1S77.
SuprtnteCourt of the Hawnllnn !
land January Term, 1TT.
J. JT KAAIHDEll), UAAZIPO EAl
IJAXC t, rs. ELIZABETH .V.
CRABBEand H. (7. CRABBE,
Alien, C. J ana JaJd, J.
Opinion of a cujoritv of Ibe Cocrl, 3elirerJ by
This is an action of ejectment for a lot of Us3
on tbe .Nonaca Valley Roai, Honolnla, liich
tbe plaintiff; claim as beitu; ibe lepil repreen
taivei of Kalisiaa, decifJ. 10 wbutn the land
vas aa-irJeJ br Ind Onmmifiion Aard, cum
ber -J700 B. Tbe award is dated April Ijt,
Section 9, Xo coorl of justice flull take
" jndicial rxigrjizance or any inslroment required
lir laar to be recorded, nbich ehall not be eer
' tiSed eo to hare been by the registrar of coo
" TeJ'ances.,,
A ocr act on tbe subject of registration, nb
etantially the same as in tbe Civil Code, was
passed by the Legislator. 27th Joly, 1S32, re
pealing the law above quoted. So. whatever
effect this law might have had in 1850. at tho
lime this deed is dated, in preventing such' a
document from being; pat in evidence, it had no
effect at the lime of the sail, for the law was re
pealed.
Iiat we do sot snderstand llut the non record
of a deed, has by tbe act oflS46, any farther
effect than to prevent courts of justice from tat
ing judicial cognizance r 'u mner word; it
does not mate the deed a nullity, though it
would eeni that the jury so regardod iu 'The
Legtslalute deemed it aJvi.'able that deeds of
landed property should be recorded, and the law
requiring this to bo done enacted that in default
of this record no such unrecorded document
should be valid against another document con
veying the fame right or luierest subsequently
executed, but prer!ou.ly acknowledged and re
corded, and as a further penalty no court of just
ice was to take judicial cognizance of such an in
strument. In 2d Washburn, p. p. 5901, we find it laid
down that " the purposes of this record are chief
ly to give notice to all jtereons having occasion
1S50. and the survey accompanying it March I " "ceua wasmer tuem uas oeeu any pr.or
... in. t-- i t- conveyance or incumbrance of anv real estate:
... ... -
and wlten it is made it becomes constructively
Slli. 1S50. to K. Keo for Kalamas.
Tbe plaintiff Kaaihue daicis that he is the
purchaser of Ibe interest of one Oapa. Ibe bro- ' "u , " iwrjoo...,
her .f Kularuaa. and be shows a deed dated . Ien ,he W ? lw B!rc,,Nl b.T ' ms.r
March 3rd, 1S7S, Irani Kaoao. the widow and
devisee of Oopa (now deceased), by will admit
ted to probate April 30th. 1S75, and he avers
thai he is entitled to the possession ot this land
npoa the farther claim that Oopa had a title to
it bv prescription for 20 Tears previous 10 the
lilt March. 1S73.
The defendant, Mrs. Crabbe, claims as devisee
of Capt. John Meek, deceased, nnder . will duly
therefore be eiated in general and nearly un-
; qualified terras, that between the parties to the
deed, or the hec1 or devisees of the crantor and
the grantee, aid those claiming under him. the
validity of the deed is not affected by the want
of record."
I Xo direct evidence was offered by the plain
I tiff to impeach this deed, and we are. unable to
see how any of tbe circumstances above referred
Pianos,
Pianos,
To arrive by the IMcoverj-.
Pianos
admitted lo probate, an ibal the said land wa a "J w' ,n ' "F
conveved bv Ibe woman Kalaman to CapU.n ! XV fully.recogoize Ihe principle so frequently
Meet bv deed dated the 26tb Fehru.rv, 1S50, ; u. rd't
and farther thai OopaV occspancy'of Ibe land
was as a tenant of Meet's and was nol adverse.
Two Hrst-Class Pianos which will he Sold at Bargains,
By CASTLE & COOKE.
Sewing Sacliincs at Reduced Mates.
.Wheeler & Wilson, 850 00- .Old Price, 75 00
Wilcox & Gihhs, $50 00 Old Price, 62 50
A suit was brought by Capt. Meek in Decem
ber, 1S72, against Ibe said Oopa in tbe Police
Court tf Honolulu, onder Article LI. of the
Civil Code, claiming the possession of the land
from O.ipa as bis tenant by parole, alter a ten
days notice to quit. Tbe Police Justice found
lht there was tenancy and issued a writ of
possession abich was finally executed by ousting
Ooj.a on ihe 14th March. 1S73.
An effort was made lo perfect the appeal
which Ibe magistrate refused lo allow, and pro
ceedings were bad by mandamus lo compel the
appeal, out 11 was snany reiuseo oy toe supreme
! be set aside merelv when tbe court would have
: arrived at a different conclusion irora thejary;
I bat in this case ihe deed does not seem to us to
i be impeached by the circumstances above re
' ferred to.
Hot it is stid that as there was evidecce of an
' adverse occupancy by Oopa for 20 years and over
previous to March, 1S73, the jury might have
based their verdict upon this in favor of tue plain
, lift's title, even lbougu they ionnd that the deed
! wa well proven, and as lha verdict is a general
' oi e for the plaintiff, we cannot tell upon ahieh
croand they found for the plaintiff.
We again quote from 2. Washbarn, p. 490, as
expressing our view as to what instructions
Warranted Equal to the Best In the Market.
Hurry I Hurry! Hurry I
TO 'J VI M
. . r . I
TO 'J VI M
INTO. SO PORT STREET I
OKA
IN A FEW DAYS
OtfR FIRST CONSIGNMENT
. W JLL.IL be closed out.
RiS.-r-iE GOODS ON THE ROAD.
Court 'in Banco, it belru: found br ibe court that fho,1ld t0 ,he jttrT in ihe niatter of
the appeal was nol perfected in lime. , iitie ov prescriptioo.
The plaintiff, then commenced an action of j " rto ooesuoa whether the possession H bos
ejectment again.i Capl. Meek which was par- 1 i"6 w "fe-'6 " one partly ot law and partly of
ualiy heard at lie April Term. 1S73. This ac- '"V-. . . - , . ,
uob was discontinued upon a compromise beicg ! . " hf ther tte poMMSun m fact is adverse, or
agreed upon bet.een the parties, which how-1 ,!. ?od'r IK0""" "f i one for the jury,
ever .was never completely executed. Jdean-1 T.'"1 ,bli auUon te burden ofshoing
xViIe MeeT: and Oopa deceased, and lie present lhe Po , have been adverse is upon ihe
action was.broaihl at Ibe October Term, 1S75. P1"? "'W0? But what consUtules an ad
It came on to be heard at the Januarv Term possession, & ""at evidence of its being
1S76. before a mixed jury. The first jurr dis- I faci " offiaenl. " quesUons of law for the
agreed and were discharged. The second trial i faTU A ,ie PfSse"o " character
resulted in a nnanimoas verdict lhe plaintiffs. 1 "" loe ,ant ",a ","cu 11 "r"s ul;e0 """" is
We deem this history of the case lo be ceces-1 beU-,l ,s ope"' UJ "ie declarations
tarv to its complete -understanding. ' oT the occupant made dannr the occupancy lhat
A motion for a new trial is made on the t he d"1 I01 bM ""'f'j- w . Iherelore ono
ground lhat the verdict of the jary was contrary itat(u ,a subserviency to lie title of the real
lo the law and the evidence and the instrae- "."" tue". m0!t dear- Pitire and con
lions or tbe court, and lcauselbe court erred ! Unued disclaimer and disavowal cJ lhe title under
in rrfusinc tbe instroclions asked for by the de- ' " h,eh he f eler"- assertion of an adverse
fendanls. "and in giving thuse asked for bv the "Cat bcghl home lo the owner, in order to lay
plaintiffs, and also because ibev have discovered i o"f"o "e operaUon of the statute of
new evidence. This last ground the court find I '"a"ons."
radifSculir in dispone of. as il appears quite I The mere possession. Ihea, of Oopa, however
elearlv that these witnesses whose testimony is ' ,oa? continaed would give him no tiUe, unless
alleged la be oealv discovered were accessible ' ecompanied with a claim of right, and a distinct
to Ifce defendants the trial and should Lave "'sro"" " -Peek's liUe lo Ihn land,
been produced then. The burden, then, was on Oopa to prove that
iifi .os row consider whether the verdict is Pofe' adverse, std evidence that
contrarv to the evidence. Capt. Meek had the land assessed to In m and
" The 'Record shows that a Seed was produced lb" ! Pid the lazes on it, that he exercised
shown lo have come from the posseVsioa oT cl f owneralip bver It oy pattine op fences
MetK. stamped with lie old stap in nse many xai I!lnS portions of it, by dealing with tbe
vears aro. government with respect bo taking a portion of
" As this Is the most important feature in this U lor widemng lhe road, should have been allow,
case, we recite tbe deed in fufl. Itjs f0aowi: t J to to lhe jury aieviderice tending to show
"ft ft lhat Oopa s possession was subordinate to Meet s
" nt- I aJ 001 ree- To tie same effect would
- Know ali men by these presents, that I Kala- ' ajso be evidence of sarvevs of this land made at
maa, of Hondulo. Oahu. Hawaiian Islands, J0ba Meek's insunce, aid of Koyal Patents of
- and wife or Keo, late deceased, for and in con- adjoinicir lands describing tho land in question as
- sideraiioa of the ssm of one hondred and fifty . Meek's "land. This woald not of course show
- dollars, to me in hand paid bv John Meek, of that it- was Meek's land." but il woald tend to
" Honolulu, Oahu. Hawaiian Islands, lhe receipt , show that Oopa's possession was not so nolori-
- whereof 1 hereby acknowledge. Lave bargained, , o0-ly adverse to Meet's as to raise lhe presump
tion lhat he was aware of Oopa's claim
As regards possession of the original awards
and surreys or what are often called - muniments
of title," we do not attach much weight to them,
as the law mates certified conies equally valua
ble as evidence ; but such testimony is not irrel-
GREEN. HACFARLANE & CO.
JPJTJLVfcOS 11AD ASI) nil! SALE
Tiie FoUowina; Articles:
Best Bar Iron,
la la ta MR rvrcThasen.
KhrrraM "VWW2vnZa& OnatW. wtt be kM W lo
Tmm.mL Wtre, c Ac j
rm CtaC- fP! ---s3rr. far r.tnTrtnn mt,
-EM Erv la k ih EaaUx. eqDU U frtjl-aM
OW-i V i 1 "Sa. Z qaavlrtj-.
k SUGAR HILL, ROLLERS 20 BY 3S IN.,
TKliJt ct r ceapjrtt. vuuV tor Straus. 3C3xiOaC, TaCt at
VAMttupHr. JLfaVaOTtmafCt Ctf
BRAXDIES.IK WOOD AND BOTTLE.
Aavoaka, eoada aa Iriaa WhiaUes,
WISES A3TD CBAarACiTS
centoi.lat2aatac.a?weIYTO4aa
a.Baia Betaas asa IMuirr, atewaa-a. El.'
xfi acber acaada.
200 M Cood China Bricks.
IfiuaVa Scwptw. aag sort.
Se6aae,aajea siaea, Ae- e- Ac
ta, ta UKEEX. 3tACFACLAXi: Jt Caw
NOTICE.
Tin: T7cxnisic?rn b-cg to -xotitt
PX.AXS AXD ESTIMATES :
Cart & Carriage Work.
LiMber el all Kinds,
JOoont, ios-V, .VctZs, Faints, OS, tic
AlTrUa4VMK aa aowvsx prloea. C2- Lsnalier
maajrfaaiwi.&ota;a a at iwen
a. f3attre-er)aaa, or t 7tm u abDae
"H". s. ITaUGiTT.
Pacific Buhber Paint Company's
PAINTS!
rVvHIS ASTXCXX X5 FOK. KAXX ST
BOLLES & Co.
lWCvMniaaVrfwIai lTctmll atrial fc3T
i ii 11 1 it IT Tte mmo&t& t & cocn! tMtV
at af ad Caasn aVStl sXblM. va tr? t2e aasari
c BfK.TKfafcOa.
SUGAR MACHINERY, &C.
Tin: rsnnnsicvcD .utcritcpiKCDTo
rirmi-h esumalea far Migar lachtaerr. eiter
ta be maoe at Ue 1IO.NOLCLC IKOX kOP.KS.or to be
Inrorled rnMn GLAsOO W ar a TesaW ta leave taal mk
aiwat Jnlj- or Aacnat aext, or tr aaottier veasel u leave j
ta rearnarjr, is.
Tlley TTa-c-o on. XXzajrtd,
For Sale ONE SUGAR MILL AND GEAR,
ALSO. ONE OH TWT) SIZES OF
Second - Hand Sugar Mills !
ALSO, FOR SALE TO ARRIVE !
Frca Glasgow. Dee in Jae Sext, j
6,t300 Cellon Clariflers.
rar rsln Mrlou. Onlrirnsal Xaelilue.
XIAO. OX IIXXD JLSD rOK SAI.E, j
Cbt&t IIcDSec r.rtcta. ranlio! Oatcl. reixrtnr w-et '
Bmp Xraa. Siert aswrtea Bar Xros, aatliM!la Btae.
caiaa v.rr;t; Ac. to
TT7.teft tri2 le Sold in tpientida ta Suit,
ctthe jOoKtft jSisrtrf Hates. j
y. E-TUoc nuiters bo are eoeteisliUtiiif tncreaar
ir ta eapadtrca'taeSr nsiEa, may bear of a iireaaatn
toe Ibeir aMaaiaa. rear tor .n mh. .prvTv.t....
tiKKl'J, JtACTABXAXE At CO. '
I
A. W. PEIRGE & CO. !
Offer for Sale
SHIP liAiDLEM
Now j
WHJLE BOATS AND BOAT STOCK, ;
GROCERIES,
Plour c3 Bread !
Lime and Cement,
California Hay,
ASD
By StttUBc r from San Francisco,
Potatoes, Onions, &c.
a ETOJ3.ta roxr
SrsarTs Sostb Lsxces,
PenT-'I)Ti, Pairkiller,
Pmdoa EaltWorli
soM and quit claimed, and bv these presents
" do barcain. sell and quit claim onto the said
" John Meek, and to bis heirs and assigns Tor
ever, all my right, title, interest, estate, claim
- and demand, both r-t law and in equity, and as
" well in possession as in expeclanev ot. in and
to ail tn.1 certain piece or parcel or land situa- ertnt, aoj nBiei3 explained was entitled to go
""""" , . .ti iu.., to me jury as stresgtnening me endeace or the
- and immediately adjoining the first Stone deliverv of the deed under the award.
" a- ti aat a Honolulc. over ' it seems to have Iwen lost sight of on tbe
which bridge said road passes. hich property trial that the rwsscssion of Oopa if found to be
is tnowo as the property and residence of my Averse could oal v inure to the benefit of the
aforesaid husband Ketytate deceased, with all pl3lntiff Kaaihne," The other plaintiffs must
and singular lhe hereditaments and appar- stand or :all by the failnre or othenviseof the
1 tehees thereunto belongitg. In witness itei Kalaaau to Meek for it is not claimed
"f;JSlrea?lost?-Tb;odaoiI that they ever had the actual possession of
this 26th day of February, in tie rear one i,aij
- thousand eight hundred and Sfty. I One point remain to be settled, the effect
- s,i ,a ii;i"J?ie?l) A"4f' LS-J f the jndgment of the police conrt of 1S73. It
Sealed and oehvered .n jnc. of fr .j, Vlce
Te,Umony wi;S thohTsig. -der article 51 of the
wirwhlftJnu
Keo. Kalamau. and CapL Meek, andwaTac XT""3, f C"
quainted with his transacLon, that he knew tie Sf,C,ed ;Jhi: l 1,? of ,-enaoC-T "
singnature and handwriUcg oT KaUman. and . b 5 f?," their pmnes was
that her signature to this deed was cenuine. ; settled by the rxJice court.
Il was urged against ibis deed itat it was in : Ala?lful CE"?ln?Uoa,,of. sta,t.ote leada
the Eoclisb langnage and Kalamau being a Ha- cs ,t. th,c a(n!"? PI'ce court
waiianAhe inference was drawn that she aid not ?D,d ,os?-r Jonsd'Ctioa in cases where
onderstaad iti contents, there being no certiS- "? rel,stl.on of lIordaad tenant confessedly
cate on the deed thai it was translated lo her. i. question for the court beinrr
We hold that a grantor is pressmed to have eto f forfeiture for non-payment of rent
known the contents or the deed he has executed ' .r bl?"of covenants, or expiry, if by par
unless tbe contrarv be aSrotatirelv shown. 2 o1e "er dae cotlce to 101t
Washburn, E. P. 57C, Kimball t tatoa S V ' whether tliere was any tenancy
H. 391. " a' adl was, disputed in that court, the judg-
The burden of proof of wast of tnowledce of ment its execution by writ of possession
the contents of the deed was on tie pUictiffs. J?6? E? Warier than to Interrupt the statute of
and liey adduced no leslimooy on this poiat! linaitatioas.-'
This court rasst casticue ta bold parties to be It is ta be regretted that this litigation has
prima fjcii responsible for their deeds. Se beea so protracted, and the court is well aware
Kaopca et al vs. Keelikolani, JoJv Term. 1S75. of the difficulties that have stood in the way
It is farther erred that the fact that the deed ' a speedy settlement of this case owing to
is not acknowledged or recorded, rebuu the pre- e deaths of some of the parties, changes in !
campuon lhat il was execated aad delivered. organization of the court, and of the coon-
But it is dear that this deed was delivered. se! engaged. But, feeling as we do, that full
Tbe fact that it came froa the grantee's posses- justice has not yet been done, we "have come
ei on presums delivery. to the coadesioo that the verdict should be
- II a oeed is round in tbe grantee a bands, a ' sel aside son a new trial granted, ana we have
thought it necessary to touch upon some of the
questions of law which axe iavolvcd although
tie Bill of Exceptions raising them does not
show that the points, were duly excepted to at
the trial.
KlXSHA H. AtXEX,
A. FHJO.CIS Je-DD.
Hon. A. S. Hartwell for plaintiffs, W. C.
1 Jones and E. Preston for defendants.
Honolulu, Jan. 30, 1E77.
delivery aad acceptance is always presumed."
Z Washburn. K. P. 5;1, aad many eases there
cited. Moreover, the witness Jasper attests
that it was - sealed aad delivered."
- Wtere a deed appears to bare been duly
timed aad sealed aad is attested, the dehverr
wiH be inferred to have taken place,"
Batting vs. Palerson. 9 Carr and P. 57a
Where the attestation chase was the same as
in this case " sealed and delivered " Lord EJdnn
said -.there would be a miscarriage ia a judge !
was sigsed in lie presence of tie sine witefcaej . .. .. , T .
as it professed to be." j Dissenting opiaioa of Mr. JuiUce Harm.
McQaeea Ts.Farquhar. 11 Vesey 47S. ; I aa reluctantly compelled to dissent from the
But it is said that the statste of registration in foregoing opinion.
forcalU;erUecJti"isdee,forrAi;iadeearx)t , Begaraing tie evidence which, in the opinion
acknowledged or recorded beicg offered la eri- of the majority of tbe Court, as indicated above,
dence has tie effect of rebutting the presets p- ' should hare been alio red lo go to the jury, it
lion lhat the deed was eiened and delivered, seems to toe safaaent to tay teat the law is ex.
The statute reads: press and particular upon that subject, t-tde 35
"S. 7 Stilate, 155. All deeds of landed Section of the Civil Code "If any party shall
" property aad leases for a longer period than " think himself aggrieved by any such opiaioa,
" one year, however eecsted. all releases of ! " direction, or order, and the Justice shall cot
- dower, and all mortgages or other rjledre ot ! " thick fit ta reserve the case upon his motion,
"real estate in secsrity for the payment of
" Doner, all deeds and declarations of trust of
"real property aad all evidences of interest ia
" the saae shall be recorded with the registrar
" of cocveyances wUhiaSO days alter tie exeea
" tioa thereof, ia oefaclt of which so ssch doca
" meat shall be vaSd against another doesntest
eouvericg the same right or interest cabse
" qnectly execsted, bat preriocily tcksoakdg
" ed tad recorded.
" the party may aMege exceptions to soch opin
" ion. direction, or order, aad the same being
" redaced lo wriliaz in a samraary mode, aad
" presented to tie Justice before the final ad
journment of the Court for the term, and
"beiiagibsod conformable to truth, shall be al
- lowed aad signed by tbe Justice ; and if said
" Justice shall refuse to allow and sign said ex
" cepuocs, the trcli of the aHegatioai therein
" cactiiaed, rasy, LtrertheJess, be established be-
" fore the full Court, and the exceptions allowed
" by ihem."
It is not enfficient therefore that tome passing
exceptions should have been noted to the ruling
of the Judge at the trial, which is only a com
pliance with lhe seventh rule or Coaru But
they litewise, according to the statute above
quoted, must be presented to the Jndge before
Ihe final adjournment of Ibe. Court for the term
and be signed by him.
No such exceptions were presented to me or
signed by me.
On the 2Gih of January 1S76 I signed a paper
purporting tu be a I!. II vt Exceptions, oeing eu
trrrly misled. This paper atlerward recalled,
vhen I bad read it over carefully, anil found it
inconsistent with the law, having first called
both Counsel, and pointed out to theui the man
ner in which I had been misled and tha impro
priety of the paper. How that piper appears
again on the Record, I am al a loss to under
stand : it should bo taten off the file. I then
give the Counsel foe defendants the opportunity
10 file exceptions, if he could, as or the last day
of the term, and he did file the following : "In
" the Supreme Court of the Hawaiian Islands.
" ot the January Terra 1S76.
Kaaihue et al vs. Elizabeth Crabbe ct al.
" Action of recunent.
Bo it remembered lhat during th trial of
M the above cause, the defendants attorney of
' fered in evidence acopyol lha judgment of
the Police Court, Honolulu anil the writ of
- possession therein dated day ol 1873,
' in the case of John Meek vs. Oopa. In a pos
" SfM)ry action in said Police Court, iu order to
" show an act of possession and a tenancy of
Oopa under John Meek, wlten tho Court re
" plted that it was no evidence of a tenancy, bat
' only evidence ol the Police Magistrates' opin
" ion lo that effect, but it was evidence lhat the
' alleged prescnplion was brokeu that day snd
" could be admitted for lhat purpose, to which
" ruling of the Court, lh defendants attorney
" excepted, by observing that he would havo the
point on said ruling.
" That after evidence bad been closed, lhe de
" fendanls' attorney, among others, asked the
14 tollowing instruction : That the fact of a legal
' ouster of Oopa by a writ of possession based
" on a judgment of tha Police Coon in favor of
" John Meek vs. Oopa, teeda to show a tenancy
" of Oopa under John Meek." Which instrue
" lion was refused oy lha Court, to which opin
" ion or the Court in refusing said instruction,
" the defendants attorney excepted, by using the
" words that he saved lhe poiul on all instroe
" lions asked by him and refused by the Court.
" (signed) W. C Jones.
' Attorney for Defendants.
This I refused to sign on Ihe ground lhat
they had alleged nothing in accordance with the
seventh rule of Court, and in fact they had made
no such exception, at the time I then' reduced to
writing my remembrance of lhe case from my
notes and memory and gave Defendants' Coun
sel the opportunity to show by affidavits that
my memory or statement was inaccurate. This
he declined to do, and therefore by tha very
force of the statute there were no exceptions
before lha Appellate Court, and I cannot but re
gard it as exceedingly dangerous for the Court
to take up points which are nol raised by Coun
sel iu lhe regular way, and express an opinion
upon them. It is likewise a mistake to suppose
that il aas lost sight of ali the trial, whether or
not lhe possession of Oopa would inure only to
the benefit of Kaainaa orot Kaaihaa and all the
other plaintiffs. Bat on lha contrary, in point
of facte it was suisrested by the Counsel for tha
defendants and abandoned by him because it
was conceived that if Oopa had held at all he
had held for himselt and Lis co-heirs and that if
the prescription should be found to have run in
faro.- of Oopa. it could make no difference to de
fendant whether he held tha Ian J fur himself
alone or for himself and others. His petition
filed Ihe 17th of March 1S73. sets forth and de
clares thai he claimed it for hioiseit and his co
heirs. It will be observed then that the points
alleged in the Bill of Exceptions which were re
fused on tha 10th of Apnl 1S76 resrarded only tha
effect of the possessory suit in the Police Court
and judgment thereon, and lhal lhe majonty of
the Court concurred with ma in lhe opinion
Ihea expressed, that said suit hid no effect
other than lo interrupt the Statute of limita
tions. Therefore, as it seems to me, the only point
which remained Tor Ibe Court to decide on the
motion for new trial is whether the verdict of
the jury iscoutrary to lhe law and evidence.
Tee grounds upon which the plaintiffs claimed
this property were that they were the direct
heirs of Kalamau to whom lha Land Commis
sion made lhe original award which award is
dated April 1st 1S50 that Oopa had been put
in possession of it by Kalamau herself previous
lo her departure lor Hawaii whether she bad
gone being sick, as Mr. Divsett says about 1E50
and lhat he continued to hold it from lint time
for Kalamau during her tile time, and after her
death for Kalamau'e heirs of which he was one, up
lo the 14th of March 1S73, al which time, ha was
ousted by a process from the Police and District
Court of Honolulu. Plaintiff was claiming thai
Oopa did not "enter in subserviency to the title
of the real owner" calling Meek thereat owner,
but under Kalamau and therefore lie had no
occasion lo briog home his adrerse right to
"Meet as tbe owner. But he was in possession
under Kalamau's title and that hers was tbe only
recorded title. His whole plea was thai be
never knew or recognized Meek as having any
title, and if that was the fact, ha could not give
Meek any notice of tbe nature of his holding
any more than any person claimiog lo hold in
fee simple, gives notice to any particular person
of bis so holding. His whole claim was lhal he
cever had eclere I in subserviency lo Meek.
On the part of the defendants it was claimed
lhat he bad a Deed from Kalamau dated 26th of
February ISoOin favor of Captain Meek and
lhal Oopa bad been placed in possession there
by Captain John Meek
Evidence was introduced on both sides ; on
the side of the plaintiff lo show thai he was put
in possession by Kalamau and that he had con
tinued to bold possession as he alleged ; on the
part of the defendants il was sought lo show
thai Captain Meek put Oopa in possession and
that he continued lo occupy by the pennssioo of
Captain Meek.
The object of tha plaintiff was to impugn the
Deed. This hi endeavored to do by showing
that it wa written in the English language,
which the tirantee confessedly did not under
stand; that it was never acknowledged, although
the law, as il stood at lhal lime and for many
years afterward, prohibited a Deed so noac
knoalcdged even from being considered br a
Court of Justice and that Kalamau. dunn; her
life lime cociioued io possession for herself and
after her death which occurred sometime in the
year 1 So J. Oopi had continued in possession
as her heir for himself and others heirs, for a
period of twenty three years subsequent to the
execution of the Deed. It was litewise advert
ed to lhal the witness Jasper did not state in
his attesting clause lhat it was translated
to her or even signed in bis presence, and
in as much as tbe acknowledgment was necessa
ry in order lhat it might be osed ia evi
dence in a Court Justice, that atl these facts
were evidecce lo the jury that the woman would
not act no .ledge it in her life time, and that
Meek must have had good reasons for cot en
deavoring lo obtain possession under lha Deed,
during this long period of lime.
Thus evidence upon tha occupation was ad
duced upon the one side and upoo the other, and
it was argued lhal if they believed the testimony
which the defendants offeved and thai Oopa during
that Ion: period of time had bell for Meek, his
possession was Meet's possession and would
support the Deed to a lo make it quite irrefra
gable. And the defendants even asked the Court to
instruct "that aa unacknowledged and unrecord
ed Deed was good against tbe Grantor tad bis
heirs and if tbey believe from the evidence that
Kalamau execated Ibe Deed produced before tbe
Conrt to John Meet, and Oiat he h'ld potsmitm
umJ-t tiij Deed, they will find a verdict for de
fendants." This instruction was given iptiiri
nu verbis.
This was the issue that the defendants put to
the jary plainly and distinctly of their own mo
tion ; tie effect of the verdict was, therefore,
either that the jury either did not believe that
Kal tmia bad ever executed tbe deed, or that
they either did not believe that Meek ever
held possession under that Deed during those
twenty years.
Now, the undoubted rule it, that tie verdict
will not be set aside where there has been eri
rer.ee oa both sides and co rule of law violated
nor manifest injustico done, so tn this case, there
was evidence on both sides and lha Jury were
the proper Judges which scale preponderates
Graham and Waterman on New Trials p. 330.
Tho defendants asked that the Jury be in
structed "that if thoy believed that Meek placed
Oopa there, then Oo'pa'a possession was Meek s
possession, and stilt again, that if thoy belieted
lhat Kalamau conveyed tha land in question to
Meek, neither iho nor those claiming under her
could dispute the title thus conveyed." Il was
charged in tha words lhat the defendants asked.
There hail been n previom Irial which was pre
sided over by Mr. Justice Judd, in which the
Jury were divided seven to five; and in this, lhe
Jury was unanimous for the plaintiff, Iherelore
thai did not find lhal Meek, put Oopa in pos
session or else did nol find lhal KaUtnau con
veyed the land.
The previous litigation had been prolonged
and exhaustive.
No new trial has ever twea granted In this
Court under such circumstances, and tho words
ol Chief Jq.ttcw Parker in the case uf Itaker vs.
Hrigg. 8 Pick, PJ6 appear to me most applicable.
" It is moved to set aside this verdict, on the
ground thalit is against evidence, notwithstanding
there was a great deal of evidence un both tides to
cunlrudictorv lhat on a former trial tha Jury conld
nol agreo, and on this trill it was the subject "f
elaborate argument, and scrupulous comparison ol
testimony. If under those circumstance, a ver
dict con bo set aside as against evidence, no
action can be tried which may nol be, brought
in review before tho Court npon the facts,
and the trial by Jury will ba virtually super
seded. Perhaps no causo which really has two
sides toil, can" bo determined without n serious
belief in his Counsel, lhal the verdict was wrong
and against the weight of the evidence. Bui
disputes mnt bo settled and finished, and our
law and constitution having given tha ultimate
decision upon the facts lo the Jnry. to set nid
their verdict, unless in extraordinary cases where
il is manifest that they havo mistaken or abased
their trust, will bo to usurp a power which has
been carefully and properly withheld from nj."
For these reasons I I hint that a new trial
should be refused. Cn is. C. Harris J,
SAM'L G. WILDER,
AGENT
Hawaiian Steamer KILATJEA!
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lm US OFKICK WTTII WILDER A Co.
CHINA BRICKS.
Have nrnvctl per Willnrtl Xutlcrctt
from Hone; Konxc.
10,000 KXTIl.V I.AIlGi: SIZE. Ruil
Uo TO 100,000 SECOND SIZE,
All ct at te.t qnanrjr hard tirtcU, and wUl V. aoM
low, br
eio notXEM a Co.
Iron Water Wheel for Sale.
MAXi'i'Acrx'iinn BYTiiE jtcoxiirs. w
nlaow. Tha wbeel I. In perfect pnler. and almo.1
new 1 121 feet tn diameter br 3 feet on tha face. There
are two spare s.'etlatu of aide plate, of backets belonainr.
to It. rot farther pirtlcnlars. terms, Ac , apptr to
I)r. J. IVIOltT. KohaU. Hawaii,
tzt Or toJ.T. WATEKIIOl'SE, Ilonolntn.
6RfiN. lAGr'AlUiAITE & (ft,
or FEB
For Solo to ,ATartT-
THE CARGO
or
TIIE It A UK jr. I TTIE MA CLEAY
Now Duo from Portlan J,Orogon(
CuntUlintj ttf
Cases Oregon Fresh Apples,
lixs. Herrings, cases unl, Uavs
Cases Urcul, Hags Oatmeal,
14 31 Feet Flooring, VJ II Shingles,
Barrels Oregon Flour,
Halt liarrcls coiumuin luvcr salmon,
Sacks Bran, Sacks Wheat,
ICitts Salmon Bellies, Cases Salmon,
Cases .Bacon,
Cases Ham!, Cases Dried Beef,
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CST an dllEEX. MACVAHLAXr. r
DR. J. COUIS BROWSE'S
2 1, J-j Jta VJJJ JC IV
IS THE 0BT0IXAL Arts OHLT OCTCTI
1 railtla I'UliaU.ls V.lvllW.ir,U AW
ftiM iafnird CJ wi. uusVtvta .-. Army
Elavil. IBU a xtauteami a J him- hi bm
t ljtb by tb tint CbMt f U Uy, TW
vaJ twertt of th pcrpAntwti ntr .IhiWil
T- t J-Wt r I id ttalUYttl fIItJlatAflVwea t
REMEDIAL C3ES AND ACTIO.
lkwQ.abtl (timaUtr WaUISt rtl f tfc Mmiwtj
t ...(.. Il, nu rJ nauaim. t M.I aataaf vtatta u taafc. t -
rrtMt QtMBtltIla tU tAUmlme tin w wCWwi-v a
mgiat, noppiag wvga, up iijaisma. .
KXTRACT3 FROU MEDICAL 0PWI03.
Mrm.lLkn l.a l a-fTrl that I Sat tl fonawfr avi
In Cholera m CULORODYN Latxt, De. Jt, m
sVafll-M It WMU DOt tblf b BtttCaUliT tWeCSW ttU
afrJr a tut kbU 811 pt.'
vu.tk. ii...hI d .r ir.?iv tA
arc K MMMilr ttt tvlaM'itac il la U
v a at J WMijiw.wsa mw unnatwiHi n w atiihi vsr 1
blmlai( Boltcal tMtiBKWJ aVCccJHpmitw wttrb WotW j
Mnaff turr J T. UAVESPDft,
33.Cml RaoxwUfC, KUmVmn UUtyJ
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iTilll, 3M
i. a ait n nm i mm"T I t."t t nTk 1 T.nn rmTTi
h v .v. rs a in ;a , kka . n vn
-- aV- fV -4V. -4-aV. Ve .A. V -A A ,A,. JL. AjLA aV -M. St J a.
-AT TIIE-
Old Honolulu Hale Building, Merchant SU
(ADJOIXINR THE POST OFFICE,) j
Imioitei and. Dealer in
BOOKS, STATIONEKTj
ACCOUNT BOOKS.
And every nriicle of utility and fancy connected with the line, adapted to the Coaaa;
ifonse and Office, and to Artists, Teachers, Professional Gentlemen,
Travelers, etc., on as reasonable terms as can bo had
here or in San Francisco, among which are
the following Staple Goods:
Eojllib ui French Letter Fiprr, i&tia flarfice ni
extra fine, plain and H edfei
Do. Billft and Xote di. d. do., ia boxet.
Do. Letter and Note Kn ret ope, to match the abort
Mooroloc Paper and Eorelope, aa assortment coo-
itactlj on hand
American Cap. Letter, aod Xota Taperf. from tha
bet maker?, ufalmoit eTery deMriptlon
Kaamelled inrfaee and rarl tarfact Cardi
Embottred and Friend taip Cardi
Perforated Bardi, for Cbenelle work and Mot toe i
Tt9e and Fanej-colore-1 Papera
Morocco and Emboaied, aad 17 Ml and Silrer Papers
Be-t London Qiilli and Qn.11 Pen
1.600 GrojJ of Steel Pens, from the bit maltert
Engtiib. Re and Colored Wafers, and Seal.
Eaclih Seallre Wax, red and fancy
KUJerf and Parton'i IndelibTe Tnk
film Pen, for warkioc wUb Indian Ink
Blae, Blaek and Red Writing Ioki, ui Carmine
Thertnometerf. Tootb-picli
Maps ef llavaiUn Iland. Charti
PorUUt Writ it e Desk-, from IS to ZZ Incbei. Ma-
bepaay and Roiemrood, adapted for ladiea' aad
jrentlemen'j nr
School Bookr. of all kind, in general ate
Family and Pocket Bible. Telarae&t, ete.
Teaehen' new Reference Bible. Prayer Bookf
5,000 Standard EnyHfh and American Books
Paper corer Book, Soap and Mono Book
Englitb and Amerieaa JaTcnHe and Toy Books, of
erery dererition
Beit Drawioe; Paper, all rixe. from demy to double
elephant, aad n rotli of 2tf and 40 yarda
Briitol Boards, of erery me and thick net
Fern Board and Monnttog Board
Choice Chrotno of Aoeriean and European Scenery,
framed or naframed
lSfereepe and Eterevcop Views
All the late Piano Mnrie, So opr. and Sons; Books
Tracing Papers and Tracing Cambric, In rolls
Newman's Water Color, in boxes
Beit Sable and Camel's TTiir Brashes
Faber's fopcrior Drawing Pencil i, la boxes
Clored Pencils, Cretalerii do , Copyinf do.
Mathematical or Drawiog In trn menu, tn eases,
from $1 to f 10 each
Chet Men, wood aad irory
Baekemmon and Chess Boards
Intellect nil Card Games, Playing Cards
Dominoes, of Tarions patterns
Geld and Stlrer Pencil Cases
Gold Pens, with Gold Cases
Gold Pens, with Stlrer Cases and Diamond Points,
from $1.54 to $3.24 each
Steel Pcaknires. 1 tn 4 blades, of pearl, shell. Irory,
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Porcelain Slates and Drawin- Slates
Photograph Albams. card aad cabinet sixes, in gTeat
Irory Tablets, Paper Cattcrs, etc. J
Cash and Deed Boxus. Check Ca Iters saJ CaSeStZcj
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Inkttaadi, In great variety j
Elastic Bands and Bins;. Alphabet Books
Pen Wipers and Racks, Rulers
Sehaol Slates and SUta Pencils
All kinds of Tin goods aad Caih Boxes
PoeUoffieo and EortUpaTin Racks
Children's Sets Tenpins
Children's Drawing Card and Teys,ia cratrsnaT
Copjiag Presses, Oil Sbta aad Brnskas
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Desk Folios. Pads and Weights
White and Colored Blotting Papers
Drawiog. Drafts, Note, Order an 1 Receipt &mI
250.000 Earelopes, of all sixes aad raruty.
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EyeleU and Eyelet Machines
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Antograph Albams. of aI sites and prices
Initial Paper aad Earelopea
laCATIIER OOODSi.
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riCTUBE FBAME.H.
In treat Tariety, froa eatiael aist 4 faes"
neaey (ilt-ioek soaUiaj,, for larieat
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PRINTING- of Bill Heads, Circulars, Cards, Etc., Eta,
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examine my Mock before purchasing chevhere. ST" Jill orders teiU U 0ol
vromptnest and aexoatch.

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