Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1861-11-30

| On appeal from the Circuit Court for the Island
of Hawaii.
! The Court, per ROBERTSON, Justice:
| The plaintiff commenced an action of trespass
against the defendant, at the last September term
of the Circuit Court of Hawaii, claiming to re-
cover damages for losses and injuries sustained
through the alleged unlawful acts of the defendant,
in capturing, and in otherwise interfering with,
certain cattle running near Waimea, on the Island
of Hawaii, alleged to be the property of the
plaintiff
The defendant is not at present residing in this
Kingdom. and service of process was made upon
Mr.. VIM. l.. Green, of Honolulu, who is the ac-
knOwledged agent in this country for the transac
tiOn of the defendants business. His counsel
filed plea of not guilty, reserving the right to
move the Court to dismiss the suit, on the ground
of want of jurisdiction. After plea filed, de-
fendant made application before the first AssO-
ciate Justice of the Supreme Court, at Honolulu,
for a change of uenu. from the Hawaii circuit to
the Island Of Oahu, which application was refused.
When the cause came on before the Circuit
Court, defendants counsel moved to dismiss, on
the ground of a want of jurisdiction, and also for
want of due and proper service. The motion was
overruled, and the following exceptions were filed
on behalf of the defendant, viz:
First That the said (Cireuit) Court ruled
that 10 had jurisdiction to try and determine this
cause, service of summons and complaint on
the agent OF Jne OeIendanG at Honolulu, on the
Island of Oahu, although the defendant was nom
resident of said Island of Hawaii, but the plaintiff
residing on, and the cause of action having arisen
on, the said Island of Hawaii, whereas the de-
fendant alleges that the Court ought to have ruled
contrary.
Second That the said Court ruled that the
defendant was properly in court, by service of
complaint and summons on his agent in Honolulu,
Oahu, although it was in proof by affidavit, and
not contravened on the part of the plaintiff, that
the defendant had resided in England since the
year 1851, and had no domicil in this Kingdom,
whereas the defendant alleges that the Court
ought to have ruled the contrary
These exceptions have now been discussed before
this Court, the defendants counsel arguing both
the grounds raised by him at great length and
with much ingenuity and force. giving to the ar
gument, however, n wider range than, In our
view, the subject requires.
The decision Of the first point, namely, as to the
jurisdiction of the Circuit Court, and its power to
entertain this suit, depends upon the construction
to be given to n part of the 8S0th Section of the
Civil Code, which reads follows
s'The respective Circuit Courts shall have orig
inal Jurisdiction to hear and determine all civil
suits between individuals, or in which the Govern
ment is plaintiff, involving greater amount of
Indebtedness or claim than one hundred dollars,
and appellate jurisdiction in all such suits when
the amount claimed does not exceed one hundred
dollars. They shall have power to hear and deter
mine all private actions arising within their urls-
diction, sounding in consequential injury or dam
ages without limit as to amount OF claim"
The present action is one of the class of cases
contemplated by the second clause of the passage
Just quoted. 1t is private action arising within
the geographical jurisdiction of the Circuit Court
of Hawaii, sounding in consequential injury or
damages And such being the case, the Circuit
Court has power, in our opinion, to hear and de-
termine the cause, whether the defendant is resi-
dent of Hawaii, or of some other circuit of the
Kingdom, or in some foreign country and wheth-
er the plaintiff is q resident of Hawaii or of some
other circuit In this case the plaintiff is q resi-
dent of the circuit in which the cause of action
arose. and may we'll institute his suit there, sub
iect, of course, to a change of uenue for proper
cause.
It is contended that the Circuit Courts are Courts
of inferior and of merely local jurisdiction, and
that, in the absence of express provision in the
statute to that effect, Circuit Court has juris-
diction in such case as this, unless the defend
ant isa resident of the particular circuit in which
the action is commenced. 1t is true that the Cir
cult Courts, in their relation to the Supren n
Court, are Inferior and to extent limited, iN
their Jurisdiction. But upon a careful examina-
tion of the statutes defining the powers of the
Circuit Courts, it will be that they are to
considerable extent Courts of national as well as
of local, jurisdiction. And we cannot regard as
sound the position assumed by the learned counsel
for the defendant. The language of the statute
now before US is plain and unequlvocal, and makes
the fact that an action arises within the geograph
ica limits of any particular circuit the sole and
conclusive ground of jurisdiction in the Circuit
Court of that circuit this class of cases. The
restriction prescribed by another part of the Civil
Code touching the power of the District Courts,
which makes it necessary that the defendant in
any civil suit brought before either of them shall
be resident or for the time being shall be found,
within the district where the suit is commenced, is
not extended by the Code to the Circuit Courts,
as to limit their power, at least in cases like the
present. But we are not prepared at present to
give a positive opinion to whether or not that
limitation should be held to apply to cases contem-
plated by the first clause of the passage quoted
from Section $50.
The second ground of exception, touching the
service of process upon the defendant, is governed
by Sections ,l02 and 1,l03 of the Civil Code,
upon a careful consideration of which we regard
the execution as unsound. In our opinion, the
present case does not, is contended on behalf OF
the defendant, come within the purview OF Section
JOB, which applies only to cases in which the
defendant never was an inhabitant of the Kingdom,
but has property here, or, having once resided In
the Kingdom has removed therefrom, leaving no
agent here upon whom service be made under
the provisions of Section ,l02 in either of which
cases statutory service may be made by publica-
ton of the summons In constituting this Statute,
both of these Sections must be taken together,
and when thus considered. they clearly show, in
our opinion, the intention of the Legislature to
have been in accordance with the view adopt
ed 1t cannot be supposed for a moment that, in
cases like the present, where the defendant, al
though he has ceased to be ananhabitant of the
Kingdom, is still carrying on active business here
through an acknowledged and well known agent,
the Legislature intended that service should be
made by publication, or by sending copy of the
petition and summons to the defendant abroad.
In such case, notice of the suit brought home to
the agent, is quite as efectual, and probably bet
ter, for every useful purpose than if served upon
the nonresident defendant personally.