The Hawaiian gazette., 1869-08-25
POINTS FOR THE PLAINTIFF, BY S. H. PHIL

JOINTS FOR THE GLAINTIFF, BY ,. II. fHlL-
LIPS, ESQ:
Two questions are presented
l. Does section 939 of Civil Code, enlarg-
ed by Statute 1S64-5, p. IA, give an exclusive,
or cumulative remedy?
.. Does the Statute, even if exclusive, ap-
ply in this case?
1.-The remedy is cumulative:
]. The two propositions are in the same
Statute; if anything depends upon order,
s. 939 precedes 5. Ills.
2. The law does not abhor concurrent rem
edies.-Metcalf V. Kapai; l Towards S. c.
R., DPS; Adams V. Richardson, 43 n. H., 2l2.
g. Subsequent Statutes do not, by implca-
ton, repeal or limit previous ones giving
jurisdietion.-Wood V. U. States, 16 Peters S.
c., 1858; Williams V. Potter, RembOur S. c.,
S19; York '. Chapman, 10 Ad. & E., 209;
McCarterv. Orphan Asyl., 9 Con-, 500. Even
in criminal csses.-Rex V. Carlisle, 3 B & A,
161; Rex V. Jackson, Cowper, 297.
4. Most especially, if, by implication, the
jurisdiction of Court of general jurisdic-
ton will be ousted.-Dwarris on Stat, Csc;
Crisp V. Bembury, s Bling, 374 Beaubieu V.
Brinkenhof, Scam, 269; Wells V. Mason,
Scam, 81; State V. Abram, 4 Ala, 272; State
V. Coleman, l Green, IS; State V. Bell, 5
Port, $685.
5. Courts always incline against exclusive
remedies, considering the old law, the mis-
chief, the remedy contemplated, and the rea-
son thereof. As to the mischief and remedy,
see Taylor on Landlord and Tenant, s. 713;
King v Dickman, 2 Gray, 81.
6. The remedy contemplated by S. Ills,
presumes a continuance, not termination,
of the relations of landlord and tenant.-Row-
an '. Lyle, IL Wend., go In this case it
had not ceased, the lease not being void, but
voidable on the breach of condition subse
quent-an entry or equivalent action being
reqnired.-Co. Lift, 202 on jackson q Els
worth, 20 john, IS; Fifty Associates, V.
Rowland, IL Met, 90; Elliot V. Strong,
Gray, 573; Willard '. Henry, n. H, l2O;
Stuyyesant v Davis, Paige, 527; Taylor, L.
& T., s. 296.- In case of forfeiture, the de-
mandant is in of his original estate, not by
Lift, 142 a.
z. The summary landlord and tenant laws
of other countries are not considered as lin
iting the right to bring real actions, or ac
Man. q Ry., 694; Dolby V. Miller, 2 Gray,
1856; Stratton V. Lord, % Wend., GIL; Tay-
lor, Landl. 81 Ten, S. rs, note.
1.-THE summaT; process act does not pro-
vide remedy adequate to this case:
l. There is no mode Of recovering dam
ages-not BY action sounding in contract, of
which the Inconsistency is obvious.-Taylor,
3S7
2. The old English process of ejectment
being fictitious, fiction was invented for
the recovery of mesne profits, for which
there is no equivalent by our Statutes. A
simple remedy being provided BY the general
Statute, giving real remedy, recourse must
be had to that alone.
Hit is not understood that the question
whether a case for the forfeiture of the
lease has arisen is now to be considered,
but it is obvious that there has been an un-
der-letting. Payment of stated rent is not
essential.-Hunt V. Comstock, IS Wend.,
COZ.
HARTwELL, j.: The Statute provides for
Bills of Exceptions in summary" form
Civ Code, $685. When counsel agree upon
what evidence they deem material, time may |
De saved, but otherwise, all the evidence, |
md not differences, on material points, should |
lppear. In considering the exceptions, all
he law bearing upon the case is to be re-
Tiewed, and not solely the reasons urged by
counsel, or assigned by the Court in giving |
he judgment Munro VS.. Potter, 81 Bar,
IS
First, as to the Jurisdiction. Sec Ills Civ.
code, under which this action was brought, /
eads as follows: "In actions to recover at
aw any specific property, real or personal,
II any specific share or interest, or right to
property, real or personal, in kind, as in cases