The Hawaiian gazette., 1869-07-28
Supreme Court-JuIy Term.

clulme0 INC lduu TUG uciIs VI DCShl
Mellish, the adopted daughter of George Law
renee, the original patentee of the land. A
jury was empanneled, and the plaintiffs intro
duced evidence showing the adoption of Becky
the mother of plaintiffs by George Lawrence,
that be had no other heir, and that defendants
were in possession of the property; plaintiff
also showed notice to quit, and exhibited the
patent to George Lawrence. After the evi-
dence was closed on part Of the plaintiffs, the
attorney for defendants moved for a nonsuit
on the ground that the plaintiffs had failed to
prove that there was an ancient law Of adop-
ton or inheritance in this Kingdom. The at
torneys for the plaintiffs contended that such
law of adoption and Inheritance, before the
enactment of any written code in this King
dom, was part of the common law of Hawaii,
and the Court was bound, judicially, to know
and recognize this law; that our Probate
Courts, since the organization Of the Govern
ment, had acted on such law in the distribu-
ton of estates, and that such law had been
recognized by the several Justices of the Su-
preme Court, and by the Chief Justice but q
few days since, in the matter of the Estate of
Nakuopa; that the Court was bound to know
a general custom which amounted to law, with
out proof that this was the rule laid down in
Blackstone and all the elementary works, and
recognized by all the authorities of the COM
mon law. The Court, however, sustained the
motion for non-suit, on the ground that there
was no evidence of the ancient custom of
The plaintiffs, by their attorneys, excepted,
and fled their motion to set aside the non
suit, and to re instate the case.
George Morris Us. Joseph MOrris.-This was
an action intended to be brought under Sec.
ZIG of the Civil Code, to recover $500 dam
ages, for alleged trespasses of defendants
cattle on the lands of the plaintiff. The COM
plant in substance AYERS that the plaintiff, for
fifteen years has lived at Kalihi, Oahu, and
has been during that time, improving his
grounds, planting a variety of fruit and orna-
mental trees, and otherwise identifying and
raising the value of his property, and that he
had tract of pasture land, for the use of his
own cattle; that the defendant occupied ad-
joining lands, and for several years as herein
after mentioned, has pastured large number
of cattle and horses on his lands, and that his
pasture lands are insufficient for the amount
of stock pastured upon them, and that in con-
sequence thereof, for two and half years
past or whereabouts, the said cattle have broken
in upon the pasture lands of the plaintiff, and
injured the pasturage and destroyed the orna-
mental and fruit trees, and committed great
damage and a variety of trespasses upon the
plaintiff land, so that it has become an intol-
cradle nuisance that ought to be abated.
The defendant filed the plea of the general
issue, denying the trespasses, saving and re-
serving all manner of exceptions to the mani
fold errors in form and substance, in said com
plant contained.
Before the jury was called, on Friday the
23d inst, W. c. Jones, Esq, counsel for the
defendant filed motion to dismiss the suit, on
the following grounds
LIST. That the Statutes of this kingdom pro-
vide full, complete and adequate remedy for
all damages done by cattle, in the pound laws,
contained in the Civil Code from Sec. 231 to
$50 inclusive. That such proceedings were
summary, avoided delay and costs of litiga-
ton in the higher courts, and afforded a
speedier remedy than by proceeding in the
higher tribunals. That all our remedies were
derived from our Statute Laws and when these
failed to point out specific redress for wrongs
and injuries, we could not resort either to the
common law OF the civil law.
I'd. That all applications for the abatement
of nuisance, either public or private, must
be in Equity, under the provisions Of Sec. 1928
of the Civil Code.
Sd. That there is no certain or definite allie
CATION of the time in said complaint, when
such trespasses were committed, as required
by law, but that the statement of the time was
vague, indefinite and uncertain.
4th. That there was no allegation that the
plaintiff had his lands enclosed by a lawful
fence, or that he awaited himself of the bene-
fit of the law to promote fencing" contain
ed in the Act of the 14th of February, 1859,
in the Civil Code, page 434.
5th. That there was no scienter alleged
that is, that the defendant had any knowledge
of the vicious propensity of his cattle before
the acts of the alleged trespass.
The argument on these points commenced
before the Court, but before it was concluded,
J. Montgomery, ESQ.,, attorney for the plain
tiff, asked and obtained leave to amend his
related to the abatement of a nuisance. The
case was then submitted after full argument
on the remainder of the points, and after ma
ture consideration and consultation, the Court
decided in substance
LIST. That the question was one of great i'm
portance and had never been brought up be-
fore that if the remedy under the pound law
had been full and complete, the Court would
sustain the motion to dismiss; but the Court
had arrived at the conclusion that the remedy
was not full under that law, and that party
had right to resort to a remedy under the
1I16th Section of the Civil Code.
I'd. That there was no allegation that the
plaintiffs land was lawfully enclosed, which
was necessary; however, the Court would not
dismiss the complaint on that ground, but
that proof of the existence of a legal fence
would be required on the trial.
Sd. That as it regards the seieHter, there
was some averment of notice, bat that the
complaint was very loosely and inartistically
drawn, and although the averment was not
full as to the defendants previous knowledge
of the vicious propensities of his cattle, yet
the Court would pass over that objection.
4th. As it regards the question of time, the
Court held that it was vague, uncertain and
indefinite. That the complaint was very in
artistic and devoid of form, and stated three
several periods of years, without any definite
allegation as to when the trespass began or
when they terminated I; that there was no con-
tinnando, or allegation of continuous trespass
that three periods of time were stated, first
period of fifteen years, second, period of sew
eral years, and then a period of two and
half years that the latter period was made to
refer to some former period, but it was uncer-
tain which that the complaint was wholly
defective as it regards time, bot that our laws
were very indulgent, and the Court would