The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1871-02-15
Il HONOLULU. WEDNESDAY. FEBRUARY Is. 1871
Supreme Court of the Hawaiian
IsIands-January Term, ls71.
ALLEN, c. j., HARTwKLL AND wIDEMANN, J. J.
John z Darts u.s. Francis Spencer.

lslands-JanuaryT Term, ls71.
ALLEN, c. j., HARTwELL AND wIDExANs, j. j.
John Z. Darts u.s. Francis Spencer.
Trespass for depasturing ten thousand head Of
sheep on the Plaintiffs land in the Ahupuaa of Wal
koloa, island of Hawaii from September 25th, 1870,
to the day of commencing this suit. Complaint
filed Nov 29th service acknowledged by the Defend
ants attorney Dec. 2rd, dd dannlng $500 Plea Not
Guilty. Jury waived and the cause heard by the
full Court The following documentary evidence is
presented by the Plaintiff, viz Exhibit B2-Deed of
Geo. Davis and wife conveying waikoloa to John
Y. Davis for sS0O0 purporting to be written June
nth, 1868, acknowledged June sOth, and recorded
July 4th, 1868.
Exhibit B. admitted by Defendanp Copy of P1ei-
c Commercial Adverttser of Oct LIST, 1s7U containing
the following:
'.Notice.-Notice is hereby given that Edward As
egut, of Waimes South Kohala, Island of Hawaii
will act as our agent under power of attorney IN
gard to all matters concerning the Ahupuaa of Wal
koloa, South Kohala, Island Of Hawaii.
GEO. D. HUEU,
| JOHN Y DAVIS.
September oath, 1870"
Notioe.-All persons are hereby forewarned not to
take Cattle, Horse Mules, Donkeys, Sheep Goats
and Swine, which are not branded marked ac-
cording to law, on the Ahupuaa OF Waikoloa, South
Kohala, Island of Hawaii, or otherwise commit
trespass on the said Ahupuaa. Any person found
trespassng after this notice the above named land
will be held responsible according to law.
GEO. and JOHN Y DAVIS
E. AsEGUr Agent.
September oath, 1870"
Exhibit Nv L. Green's letter TO Plaintiff of July
Goth, 1865, saying 81 have consulted Mr. Austin and
Mr.. Montgomery about the correctness of the form
| in which we have the lease of Waikooa from you
and your father and they inform that all that is
required to make everything quite in order now is
for you to reconvey the land back TO your father
citing that the conveyance from your father to you
was merely a form and not for bona fde consider
alton. you say SO, will send up properly made
out conveyance for you to your father, for you to
sign and when that is done, will pay the other
s200"
Exhibit J-Draft of conveyance referred to in Ex-
hibit l.
Exhibit R-Plantiff's s answer to Green, dated July
30th 1885, refusing to sign the conveyance as "my
father does not assent to my doing So"
Exhibit L-Demand on Green to "pay to Mr. Rob't
Lett the sum Of 5000: due on the leasing of Waiko
loa, aud per Bill rendered by Capt W. Berrill,"
dated Sept. oath, 1870, and signed
"GEo. DAVIS and JOHN Y. DAVIS,
Per E. AsEGUT."
Exhibit M-Notice signed as the preceding, dated
Sept. oath, 1870, informing Green that "we have
taken possession and entered into the land, Ahupuaa
of Waikoloa and call the lease made by us July 2,
null and void, on account of default Of payment
your side as promised in the said lease with request
TO pay $500 amount due on lease"
Exhibit O-Geo. Davis letter to Asegut, dated
Sept. 10Th, 1870, instructing him to demand Of
Green $500 rent for Waikoloa, and to put end to
the lease for Green's failure to pay according to its
provisions; the writer saying he wishes to reenter
for that
Exhibit P-Plaintif's demand of $500 of the de-
fendant for this trespsss dated Nov. 9TH, 1870
The defendants documentary evidence is as fol-
lows, viz:
Exhibit A-Defendant's letter to Macfarlane, say
ing sc l have this day rendered the money to G. Da-
wis., which he at first refused, but when he was led
to understand that it for rent to Sept. a. and
not in advance he accepted it, aud enclose you his
receipt But if the lease reads that the rent shall be
paid in advance, there should be tender of $4,000
without delay, as that money was due to Sept oath,
1870"
E1hibn 4, 2-Geo. Davis receipt enclosed in the
preceding.
Exhibit H.-Plaintiff's agreement that &c. Davis
has authority to make and conclude the lease made
between him and w. L. Green, and that whatever
may be done by him is right-that assent of mine
refers to the land of Waikooa. For the truth OF my
assent to the aforesaid hereby sign my name this
nth day of june A. d. 1868, at &c.
JOHN Y. DAVIS"
Acknowledged July 18th, 1868; recorded June 18th,
1870.
Exhibit O-In native, translated thus:
"Ledse.-I the undersigned, do lease to W. L.
Green the laud of Walkaloa etc, for 80 years The
consideration of my agreeing to this lease, is w. L.
Green's giving me $500 every year from this day for
the said 80 years. and his consenting that keep, all
those years. 800 CATTLE fifty horses 500 sheep; but
this is for Hueu and his family only.
/, W. L. Green, agree first to pay G. ID. Hueu,
s., 900 rent for two years.
W. L. GREEN
Kawaihae, March "a, 1868.
This document is not recorded b.
Exhibit D-Receipt of July I'd, 1868 by George
Davis Hueu and John Y Davis OF 81, ,00000 from
Green as rent of Waikoloa for two years from
March a. 1865 $500 remaining to complete the rent
due for those two years"
Exhibit E-Lease OF Waikoloa from Geo. Davis
Huehu TO W. L. Green for 20 years, from March
"a, 16s, for 10000 year; payable semianuualy in
advance, and providing that in default of payment
thereof, according to said terms, "Geo. Davis, his
heirs and assigns, may reenter and take possession
and put end to the lease, reserving to the lessor
the right to pasture of 1000 head OF cattle, 100
horses, 1000 sheep. Signed and acknowledged July
9, 1858; recorded July IS, 1868. Opposite the sig
natures of the parties, the plaintiff writes: ZAP
proved by me, this 2nd of July, A. d. 1868, John Y
Davis, and Acknowledges the same with the par
tics
Exhibit F-Purports to be An badeztuTs between
Green and the Waimea Grazing and Agricultural
Company, reciting that George Davis had leased
Wsikoloa to Green for 20 years from March "a, 1868
in trust for said company, who now request an as
sigument OF the legal estate TO them
Signed by W. L. Green. Recorded September 5th,
1868
Exhibit G.-Iudenture whereby the said company.
by its President, W. l. Green. ard Secretary, Tn
Davies assign the lease Of Wakoloa TO the Defend
ant: recorded Sept 5th 1865 Part Of the consider
alton expressed is the defendant agreeing 10 release
to the Company certain privileges to pasture cattle
on said land.
EzhibR L-Charter Of the said Company for ten
years from July, 25th, 1851