The Hawaiian gazette., 1871-10-25
supreme Court. sept. II. 1871.


discovered evidence, and for an alleged pay
ment by one of the plaintiffs to K,aimakani
for testifyipg in their behalf The action was
Ejectment, to recover possession Of piece Of
land with the buildings thereon. situate in Homo
lulu, and which was granted by Royal Patent to
oae Keoni. The plaintiffs claimed that he was
The son Of Kaiana, and the defendants that he
was The son Of Kaahaaina and the parties claim
inheritance accordingly. 1t is agreed by both
parties that his mother was Kaakau.
1t appears that both parties introduced wit
nesses to prove who the father of Keoni was !;
the plaintiffs contendng that his name was Kai-
ana, and the defendants that his name was Kaaha-
alma. The defendants now aver that they can
produce additional testimony to prove that Keoni
was the son Of Kaahaaina, although they fail to
produce the afliiavits Of the witnesses by whom
they propose to make this proof
From the statement of counsel, it remains un-
certain whether they can obtain the testimony
they seek. They say in their brief, that the de-
PENDANTS did not succeed in procuring any afi-
davits at Koolau as to the paternity Of Keoni,
the said Kaukanaka lone Of the deiendanis) being
a stranger at Koolau. The evidence offered is
merely cumulative and it is generally easy to
find some additional evidence after trial
1t is not pretended that the discovered evi-
dence was placed beyond the control Of the de-
PENDANTS by means Of the other party, but it is
simply neglect to procure witnesses which it
is alleged will strengthen the testimony already
given.
1t is not apparent to the Court that there
could have been surprise on the defendant. for it
appears that Abela, one Of the plaintiffs, was
appointed administrator Of the Estate of Keoni
in May, 1867, and on the testimony. which is
declared now by the defendants to be eorruplly
obtained. The defendants have certainly had
fair warning, and any omission or neglect to pro-
cure additional testimony in corroboration Of
what they have already given, is no ground for a
new trial.
regard it as unnecessary to present authori-
ties to show that newly discovered evidence,
merely cumulative, is no ground for new trial.
1t must appear alirmatyely that The evidence is
not cumulative. Ililliard, in his valuable work
on New Trials, page 3Sl, recognizes the following
authority in relation to The multiplication Of wit
uesses to one point " Il is said that If a new
trial is granted, there are two witnesses who
were not known to the defendant at the time Of
the destruction of the Catherine This was the
fact principally controyerted at the former trial.
and we are now applied to for another, because
all the witnesses who knew something Of the
matter have not been examined This is anal
ognus to the case at bar 90 the subject OF
relationship in very many cases, there might be
several trials and yet additional witnesses could
be procured who could give evidence upon the
fact in controversy. Courts must adhere to settled
principles, aud perhaps there is none sustained
by more numerous and reliable authorities than
that newly discovered evidence, merely oumu-
latiye, is no ground Cor a new trial
The second ground Tor a new trial is that one
Of tho witnesses on the part Of the plaintiffs was
suborucd to testify falsely Kuaiwa fes an ali
davit that Keamakani, a witness for The plaintiffs,
told him that he was hired to give testimony for
the plaintiffs. aud was 70 receive $40 and also
the affidavit Of keaumu, that keaimakani told
hm that he had received $40 Tor tesiyiug for the
plaintiffs
by his affidavit appears that be heard one Of the
material witnesses examined by The plaintiffs 10 .
this trial, declare in prcseuco ol himself and /
others, that he and another witness examined I
for the plaintiffs had received $40 zach irom one f
oC the plaintiffs, to induce him 10 give testimony .
TO sustain the paiuuas allegation Rat kaiaaa .
vas the father Of Keoni This AFFIDAVIT is very '
lceccnt in not stating who the witnesses were (
who made these declarations
The oaidayit Of kcamakan s introduced in
which he sWcars that he never said 70 Kauka-
naka or any one else, he bad received any prom.
scd $40 or any other sun OF money 20 induce
nim to testify rs he testified, aud that the state
ncnt is wholly hse, and That he never was
promised any sum, or received any money Tor
osi0ipg as he did testify. Ahela and Raloka.
ami. who with their sister lokapeh are the
,lainufs Gle an affidavit ia which they swear in
ubsRueo, tha, they never offered TO pay money.
inl mover dad pay money. 20 influence any one Of
he witnesses 60 testify as ttoy did testify at The
rial or 20 tes,liy falsely,
Gaulhl who ssyoare, a. eri,ssss ty BE ahiavit
hat ho has not met seen, or spoken to kauka.
aka lrom the day Of tho trial to ,ho present
Law, that Is the DAY he made cath to The affidavit
md that he has not said 10 him, or any ono else.
hat he had received $40, OF any other sum nom
he plaintiffs, or either o. them or from any o,hor
,ersou on their behalf, nor has be been promised
ny gntuiiy Of any hind To induce him to ,oaliiy
: he testified, or for any other purpose. nor has
e received from tho plaintiffs any money to
influence his testimony. This witness and Keai-
nskanl we're the only witnesses 20 the paternity
( Keoni introduced at the trial by the plaintiffs.
The afidavils Of the parties are N direct con-
radiction to each other The denial 10 the
fidavits introduced by the plaintiffs is direct to
he statements made in the afidayits Of defend
nts and those introduced by them
Courts regard with great caution the atiiavits ,
{ this character, when introduced as a ground
,r new trial but in this case they are 50 fully
and by testimony as much TO Be
alied upon as that introduced by the defendants,
hat the Court can not regard them as sustaining
he charge Of bribery. II
Motion for q new trial overruled IN
THE following census Of mortality indicates the
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