The Hawaiian gazette., 1869-08-25

The Plaintiff having rested his case, the
Defendants Counsel moved for Judgment of
non-suit, on the following grounds:
"First-Because the action is wrongfuliy
brought in this Court, in that il should have
been instituted under chapter 16, article XL,
Of the Civil Code, entitled, OF Summary
Proceedings to recover possession OF Lands
in certain cases
''Second-This is an action of ejectment,
aud notice to quit should should have been
proved.
'Third-No proof of the violation of the
conditions of the lease, or of any forfeiture
/ thereof, nor of claim of forfeiture is shown,
even if 1t had been pleaded, which 1t has not
been; no sub-letting or transfer is shown.
"Fourth-No damage is shown"
The Court, after hearing argument, grant
ed said motion, whereupon the Plaintiff 5
Counsel filed bill of exceptions, to the allow
ing of which, many objections by Defendants
/ Counsel, We're filed. The presiding Judge
allowed the bill, in so far as the same con-
| forms to the pleading and record, including
the Clerks notes of evidence, which were all
made part of the bill.
At the Supreme Court in Banco, R. G. Da-
Wis, and R. II. Stanley, Esqs., for Defendant,
made the following points:
THE action IS wrongfally brought in
this Court
The allegation in the Plaintiffs declaration
is, that the Defendant 'has uniustly and con-
trary to law and the rights of Plaintiff, taken
into his possession and converted TO his &C.
cupation.n The Statute, by sections $50 and
$40 contemplates this Kind of grievance.
If the lessee has violated any of the con-
ditions of his lease, the remedy is in an infe-
rior Court, and the Jurisdiction of this Court
is simply appellate, because the Statute pro-
vides more speedy remedy; section Ills of
Civil Code contemplating another aud more
numerous class of cases than those arising
under differences between land-holders and
tenants.
In the latter class, the title of the plaintiff,
however defective, cannot be disputed by the
defendant. In the former, the title of the
plaintiff aud his right to possession may
form, as it generally does, the very gist OF
the issue
II. Courts discourage variety of remedies
and do not favor forfeituTes.
III. Where action is brought between
landlord and Tenant, claimant must show
that the tenancy is determined. How have
they attempted TO show it? BY evidence OF
sub-lettingy 1t is not commended, that any
sub-letting of the entire premises is shown
by the testimony; for that is, that the origi-
nal lessee is still in possession, has for sew
eral successive quarters made tender of the
rents to his landlord, which have been
refused.
sive portion of the premises, and if any were
shown, il still might be 4 grave question,
whether that were sub-letting or transfer
under the lease
V. If it is merely condition (and not
cOvenant) where is the right of re-entry uu-
der the lease? where is the covenant of for
fixture in the lease if the condition be held
violated? And if there be none in the lease,
then most certainly the Special Statute bars
this action in the Court. This Court could
not decree upon it.
VI. There is no proof Of any violation
of this lease, even if it had been pleaded
The evidence introduced, attempting to
show il, was merely admitted de beRe on ex-
ception by defendant, and might be wholly ex-
cluded from the consideration OF the appel |
late Court.
VII If this be an action of ejectment,
notice to quit should have been proved.
When the relations of landlord and tenant /
is once established. notice TO quit is neees-
sary, 10 Johns, 106; 10, 800; 6 10, 46; 3 |
ID, 422 vol. Greenleafs Ey., sections S2l |
and 325
VIII. The plaintiff has shown no damage \
suffered by him, on the contrary he has |
shown that defendant has been and is ever |
ready TO pay the rents quarterly arising, at |
the order of the plaintiff. No act is shown |
which could vary the nature or value of the /
property in question.
X. Conditions precedent or subsequent
relate more especially to contracts of diff
ferent nature from those between landlords
and tenants; the only conditions which the
Court can regard in this latter class of cases,
are those plainly expressed in the lease
Itself
If there be any condition precedent which
The tenant has violated, in order to form the
basis of the plaintiffs action, that remains
70 be shown, and the absence of any was
he material ground upon which the Court
1t nlisi pr'ias founded its judgement of non
suit.