The Hawaiian gazette., 1877-06-27
PUBLISHED AND EDITED BY
WEDNESDAY, JUNE %. 1877.
Supreme Court of the Hawaiian Is
Iands-APrii Term, 1877.
JAMES l. DOWSE7'T Us. GODFREY
BROWN, eL al.
Harris, c. j.; Judd and McCully, J. J.
Opinion Of the Court by McCaIIy, J.

THIS is a motion in arrest OF Judgment aud by
request of parties was heard by the court in
banco 10 the first instance. The case was en-
titled an Action OF Assumpsit," on which the
jury the present term, rendered a verdict for the
plaintiff. The defendant now moves that judg-
men; be arrested:
lst. Because The compliant shows no con-
sideraiion lGF the alleged promise.
End. Because it does not appear, neither can
il be gathered from the petition. whether the
action Is founded upon personal injury or wrocg
done 10 the plaintiff against his private and per
sUna rights, or Tor breach OF some implied pro-
mise OF the defendants.
The plaintiff, in mis- petition, "cln;ms of the
defendants the sum of FIVE thousand aad FIVE
hundred dollars for damages resulting to she
plaintiff by reason Of injury and wrong done by
the said defendants TO the said plant q in man
ner and form as follows to VIII: in substance
that al their request he had acted as their agent
aud factor in the management of their vessel
tue d" PouIare, aud Us such had paid for the use
and benefit OF defendants, and ut their request
q certain sum of money which said SUN Of
money is now due and owing unto plaintiff by
the defendants" with also counts charging the
like sum iur merchandise sold aud delivered, for
labor aud services rendered, for interest and
and agreed to, all at request of defendants.
" which said sum of mOuey in consideration
thereof the SAID defendants promised to pay
but have neglected. although demanded, all
-" which the plaintiff alleges Is 10 cOniraventIon
OF his private rights under the law, aud TO his
damage, etc. the declaration being accompanied
with an account 10 detail.
L. Preston for defendants No present con-
sideration is expressly pleaded. aud it not being
alleged cannot be aided by proof or verdict !;
there is no promise TO pay at time which had
expired Al commencement Of the action. The
action is eutitled assumpsiL, but II does not APP
pear by its form, il il be assumpsit or tOrt,-it
claims damages by reason OF wrong aud injury
done the plaintiff. and it claims by reason OF u
promise 10 pay; neither is il contract.
Cited: , Meeson and Wellsby Hayter vs.
Moat; II Clarke and Finely, Brown vs.. Boor-
man 2 Sergeant and Rawle, Whna vs. Morse;
Pickering. Hemenway vs.. Hlckes; 3 Conn,
Grafin VS.. Pratt.
o HalIoran and Davidson for plaintiff. Contra.
The consideration and the promise are fully set
forth in the declaration, which follows the form
prescribed IN the Statute, and besides contains
the common law counts IN asSumpslt Any de-
feet is now ccred by plea and verdict
Cited section ZIG OF the Civil Code. Ste
phen on Pleading. PIP. SO. LAG to $50 2 TIdd 5
Practice, p p. 9l9, 920; 90 Name, Barrett vs..
Black; Bowler last. p. 5l7.
BY THE COURT: Our Statutes furnish
three forms for common law actions brought IN
Courts OF Record, in section HOO of the Civil
Code, for suits for the recovery of money upon
vouchers certain; in section Ills for actions to
recover specific property, real or personal and
in section lll6 for all other civil cases, iuvol-
wing uuiq1idated demands, which after section
will bn IN rafar IN ~ ha IL,
enough in its terms to cover any case not in
Guided in the other two. 1t specifies iatsI'-dlia
actions on any verbal understanding, contract,
or agreement" between parties.
This form the plaintiffs declaration follows
literally.
Thus the plaintiff comes into court in the form
prescribed by our law with substantially this
case, that at the request OF defendants he be-
came their agent aud paid out sums of money
for them which are due aud have been demanded
and not paid, and this being tried on It's merits
the jury fad ia a certain amount for the plain
tif The court would be reluctant in any case
where plain issue had been tried on Its merits
10 sci aside the verdict or arrest the Judgment
on purely technical ground. Courts OF Justice
are open for the settlement in the most simple,
direct, and common sense method, which is con.
slstent with regular proceedings, of such cuntro-
unable to ADJUST without their aid They are in
tended TO facilitate business not to obstruct it..
The tendency of modern law Is to abandon tech
meal niceties in pleading, and to seek the sub
stantial points OF the controversy. We fail to
fnd any material defect in the declaration before
u.s. 1t Is true there are expressions in it which
are not necessary, such as the averment of dam
ages resulting by reason of injury and wrong.
which belongs rather to tort than assumpsit, but
this redundancy results from following the Sta
tule form which is given at once for the greatest
variety of cases. The presence of unnecessary
expressions does not yitate ii there be also
sufficient to lay the proper action which is in
tended to be brought. 1t is safe method to
follow Statute forms.
But if the declaration were insufficient, and
we fail to see that it is materially so, the doc.
trine of alder by verdict now comes in to support
1t. This has been adopted by this Court in
Name VS.. Namea ct al, April 1875, Bird Haw.
Reports; that case and the authorities therein
cited fully meet the argument OF the learned
counsel Tor the plaintiff.
Motion overruled
Honolulu, April Term, 1877.