The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-09-01


Court will not grant a new trial on the
ground that the verdict is against evidence,
even though they deem that the conclusion
reached by the jury is erroneous. Mitchell
vs. Latham, 6 Cow, $50; Fleming VS.. Hal
lenback, Bar, 27l; Mackay VS.. n. Y. C. R.
R. Co., q Bar, 52s; stoddard VS.. Long Isl
R. r. Co., 6 Sandf, $50; l Hilton, n. Y, $50. ]
AZ. JUDD FOR APPELLEEs.
l. The general law on the subject of new
trials is admitted; but in this case, there is
an irreconcilable conflict of testimony on the
part of the claimant, not alone between the
claimants testimony and that of the appel
lees.
2. OF the three witnesses who testify as to
the act of adoption, one says it was at the
Sandalwood Expedition, at Waialua, in
another says he was present at the giving
away of the child BY her parents a half year
after this expedition, and that she was then
as high as the clerks rail; and another says
she was given away when twenty years old,
about 1916. If the adoption was since
1871, it is invalid, there being no writing to
support it, as required by Statute
If the claimants own witnesses prove three
distinct adoptions, it shows that their tes-
timony is false, and not that one corroborates
another; for, if one is good, why make an
other? The claimants witnesses contradict
each other as TO her age, which shows that
1t is all a made up story.
8. The jury found that Kaoaopa was the
keiki hAnai of both Puhalahua and Nakuapa;
but the testimony points to Puhalahua alone.
4 The marriage of Puhalahua and Naku-
apa, whether in 1884, as Konoa testified, or
in 1887, according to the evidence of Kaai-
hue, was subsequent to the times of the al
legged acts of adoption.
5. The property in question was Nakuapa's,
not Puhalahua's, and the claim of Kaoaopa
TO this property alone is to be considered, as
by Puhalahua's will, made in 1855, and ad-
mitted to probate in 1866, Nakuapa became
the sole owner Of this property.
6. The evidence of those more personally
acquainted with the parties is, that they
never heard of this alleged adoption, and
that the claimant lived with decedent's fam
lily as friend or servant.
z. Claimant lived with her own parents as
well, and inherited the land of her own
father, Kaahumanu.
HARTwELL, j.: The counsel, very properly,
have cited in their briefs the full evidence
hoo - NTH 10
the pages on the Clerks record.
The cases cited by the appellants counsel,
so far as they are accessible to the Court, are
found TO sustain the views advanced in re-
gard to granting new trials.
There are strong authorities that mere pre-
ponderanee of evidence against verdict,
will not warrant setting it aside, and that
the jury alone are TO judge of the weight of
evidence. billiards New Trials, 1851 The
preponderance should certainly be clear
and strong. [Smith VS.. Hicks, 5 Wend., 4S.
And the result arrived at by the jury must be
so manifestly wrong, as to make it apparent
that it was produced by prejudice, bias or
mistake. [Hunnewell VS.. Hobart, 40 Me-, Is.
1t may be regarded as a settled point, that
this Court will not disturb verdict, in cases
Of conflicting evidence, when the verdict can
be sustained upon any theory consistent with
the testimony.
This case, especially, precludes the Court
from interposing their own views of the
evidence of native witnesses given before
a native jury, on matter peculiar to the
customs of this country. Whether the date
or another of the claimants witnesses, or
whether their recollection failed them or not,
as to her age when adopted, or whether or
not some of the evidence was manufactured,
we can not say that they all testified falsely.
The jury may have believed either of the
witnesses who referred the adoption TO a
period antecedent to 1S41, and may have felt
satisfied that some mistake existed in regard
to the age of the child. The witnesses GER
tainly give varied statements upon these
matters, but who can say, now, that no one
statement was true? /. must be borne in
mind, that the aged witnesses were testifying
to events that occurred thirty or forty years
ago, and the jury may have seen in their
bearing and statements of which only
hastily-rendered translation is given us
enough to satisfy them, if not the Court, of
the fact which they found in their verdict.
The fact that the decedent's husband
adopted the appellant before their marriage,
does not affect her rights, especially as she
lived with both as their "keiki haDai," after
the marriage. Nor is any claim of the appel
liant in this estate, if she have any, affected
by her having inherited the property of her
own parents.
New trial refused
LIVERPOOL, August 3.-Capt. Kendrick