The Hawaiian gazette., 1871-11-29
Supreme COurt-lR EsancO.
ocroBEz rERN. A. D. lSJI.

-'-r-fst-@ tt-ss@ n. ~ AttS " scs LII.
Action to recover land granted TO one Makai-
iauwai, deceased intestate, under Lard Award
No, lies, by right Of descent in the plaintiff
Hapo. The evidence showed that Kapo and the
defendant were eo-heirs, and that the defendant
had held possession since the ancestors death in
1882, whereupon the plaintiffs asked verdict for
a moiety Only. There was 10 evidence Of rents
and profits A special verdict accordingly was
taken, aud the plaiuufs now move for Judgment,
W. c. Jones and A. F. Judd for plHs.
J. Montgomery and F. IT, Harris for def.
OPINION OF 7HE COURT BY HARrwxII, J.
The difficulty Of allowing this amendment. Of
issue after trial seemed to me to be great but on
reflection I think that the verdict can stand and
judgment be pronounced on it.
Ii is true that the tenancy in common entitled
the defendant to the possession of the whole
land, aud that exclusive occupancy is not OF itself
enough to show hostile possession adverse to CO.
tenants It IS also true that the defendant went
to trial DOT on the amended issue bat on the
issue Of the plaintiffs being sole owners
Actual custer is always said to be required
before co-senaut can bring ejectmeut; bat it
may be inferred BY long occupancy with claim Of
exclusive ownership. If the demaniant claim as
sole heir. and the tenant fail to suggest that he
claims but mOiety. think the demandant may
treat him as claiming the whole and as dis
seizor Of whateSsr portion he may himself be
entitled to. Jackson vs. Whitbeek, Cow. 633;
Riekard IS, Riekard. Is Pick. 253; Wyman vs.
BrOWn. 80 Ne, I43 Prescott vs. Neyers, 4 Ma
sou. $50; Colburn vs.. Grover. A Me-. 435;
Cummings vs.. Wyman. 10 Mass, as; Emerson
IS Thompson, . Pick, SOP.
In regard TO amending the issue betore verdict
I think English Common law and Statutes Of
jeoiails allowed this in the writ Of entry HuDer
05iiL q class Of actions which the present resem-
bles- Com. Dig, 80 Booths Real Actions,
2O4- pa, PIG; Inglis vs.. Sailors Snug Harbor,
3 Pet,-ani cases there cited; Heyer IS Dun
ming, Johns Gas. 1O3; Great Falls Co. vs..
Wooster, Is y u, 462
And further: there are principles of pleading
which do not rest on statute on which this mat
ter may safely rest 1t is true, as the de-
fsOdans nov admits the PLAINTIFF claim Of
moiety, that judgment Is only necessary to carry
costs Our statutes also provide for only two kinds
OF answers, demaTers and general deuials, and al
low any matters Of defence to be given under the
latter- Bot special pleas in bar or in abatement
and motions to dismiss are common IN practice
and frequently serve to avoid expense and delay,
and 10 present points Of law seasonably and With
precision. Special pleas may always be made,
under or practice, and it Is JUST that if party
fail 10 plead specially what Is peculiarly within
bis own knowledge be should pay the costs which
be might have avoided. party is always pre-
sumed 70 know the particulars Of his own title
aud not to kaoE those Of bis adversary. The
presumption rests o. the fact that sach Is Usually
the case. he can, If he Ike, set forth those
particulars, disclaiming or pleading uouisnure Of
al else He thereby narro1s the issue and e1a-
blss bis adversary 70 modify or Withdraw the
claim. The plaintiffs rscited their pedigree and
the defendant omitted to do So The pIaintifs'
pedigree IS proved as reciied bat tks additional
fLcI not presumed 10 hare been Known bJ them
aud presumably kuOSn BY the defendant appears,
that The dsfsudlHi q alsO az heir. think it Is
the dsisndaat's fault tia. the issue vas not naE-
-ozsd, and trial thereby avoided
Area. Civ PL 2Ol, 22s; sseph. PL 300. q saq.
Gogld's Pl 81
As f5r a variaues betzeeu the allegations and
proOf if it we're deemed material, our statute Of
lmendmsats would remedy it.
stePh- PL 800; Bris,OE Ts- Wright & Notes.
smiihs Lead Gases, 737 Arch PL II6, lls
Jadg1sszi oa he esTdia.