The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-09-07
THE PACIFIC
Observation-Disclosures
SATURDAY. SEPTEMBER :.
SUPREME COURT OF THE HAWAIIAN
ISLANDs-July Term, 1878, In Banco.
w. IL. SToSE vs.. y. HrTcHNsoS.
Harris. c. j.; JUDD y McCuLLY. J.J.

Plea in bar of a former judgment between the
same parties, based on the same facts, was sus-
tanned by the Chief Justice, holding the trial to
which exceptions are taken to the Court in
Banco.
The plaintiff ia the present action complains
that the defendant wroDgfully and Inaliciously
contriying and intending to i%njure, harass and
distress the plaintiff, and to compel him., through
fear and duress of arrest, imprisonment and cri-
mInal accusations and proceedings, TO give up
and Telinquish to him, the said defendant, GER
tam papers, to wit the labor contracts OF j.
Mott & Co., a firm formerly conducting a sugar
plantation in kau-wbich labor contracts were
then in the lawful custody Of the plaintiff as
agent and attorney in fact of the said j. Mott Il
Co., heretofore-to wit, on or about the 22d day
of March. a. ID. l877-went before c. A. Akau,
at that time District Judge of Kau, and then
and there unJustly and maliciOusly continuing
and intending as aforesaid, and to procure the
arrest and Imprisonment of the plaintiff, and to
harass, Cypress and injure him, through fear
and duress Of arrest, Imprisonment and criminal
accusations and proceedings, to deliver up the
said labor contracts in his lawful custody as
aforesaid; falsely and maliciously charged the
plaintiff with having committed the offense of
malicious injury by taking the labor contracts
aforesaid, and by instructing the laborers OF j.
Mott & Co. that if the defendant came they
should not go to work, and that in consequence
thereof they refused to go to work and that
the defendant thereupon maliciously caused
and procured the said judge to issue his warrant
for the apprehending of the plaintiff, and for
bringing him before the said judge to be dealt
with according to law for the said supposed
offense and the defendant, by virtue of the said
warrant, . was arrested and held to bail,
and on the following day was conveyed before the
Judge and there and then the defendant re-
newed such charge, with the further accusation
that the said Mott 81 Co. were damaged by such
malicious injury over one thousand dollars, and
proceeded to the prosecution of said charge until
the plaintiff, through fear and duress of impri-
sonment and criminal proceedings, was forced to
give up said labor contracts, lawfully in his pos
session as aforesaid, and did so give up and re-
linquish the same whereupon the defendant
desisted from the prosecution of the said pro-
cecdings and permitted them to be discontinued,
and the plaintiff to be discharged for want of
prosecution. By means of which several pre-
misses the plaintiff suffered great %ignominy and
reproach and injury, &c.
The complaint in the former case between these
parties was published in the opinion of the Court
rendered as of the April term, and may be COM
pared with the complaint in this case. There
will be found an almost literal similarity and q
complete substantial similarity between the two.
The complaint IN the first case was held by the
plaintiff 8 counsel, the same who now represents
him, to be 9 for malicious arrest and abuse of
legal process to compel the plaintiff to give up
certain papers, and the Court held that it was
a complaint for malicious prosecution in the
ordinary and common form, and subject to the
rules of law governing such actions.
The motion at the trial was for ~non-suit, or n
verdict ordered for the defendant on the ground
that the prosecution which was the subject of
the complaint was not determined by a judgment
in favor of the plaintiff. This being overruled,
came up on exceptions, which were sustained by
the Court in Banco.
Thus, it appearing that the Court has held that
a complaint similar to the present, and based on
the same facts, cannot be maintained, it is i-
evitable that the doctrine of res ddjNdicdta must
apply in bar. The non-suit or verdict for the
defendant was ordered on a point of law, and not
upon a failure to make proof of the declaration.
The Court held that the facts therein laid consti-
tuted a prosecution, and that the prosecution not
having terminated by a judgment in favor of the
plaintiff, but being Withdrawn on a compromise.
Here we have the same facts which this Court
has decided to constitute a prosecution, and there
fore subject to the principles governing proceed
ings for malicious prosecution. If the case pro-
ceeded to trial, it must be held that the action
would not lie, and, IN iinine, 1T must be held that
the matter has been previously adjudicated, and
must hereafter be at rest between these parties
and their privies.
The plaintiffs counsel urges that this action is
not for illegal arrest and Imprisonment, but for
a malicious abuse of legal process to extort from
the plaintiff property lawfully in his possession,
and that the arrest and imprisonment were mere
circumstances in the proceeding complained of.
We are unable to perceive the distinction. If
the process of the Court had not been executed
the plaintiff could not have been coerced-he
would have suffered no injury, and could have
made no complaint. W hat he complains of in
both these actions is, not that the defendant
asked OF the magistrate a paper warrant, but that
he was arrested, imprisoned, taken before the
Court and prosecuted. If this proceeding had
been shown to be malicious and without probable
cause, and had resulted in a judgment of ac-
quittal, the plaintiff could have maintained his
action for malicious prosecution. Without con-
siderIng the first two points, the Court found by
the pleadings as well as the proofs that the third
essential condition was wanting. The final judy
ment of the Court was therefore one which went
to the gist of the action. 1t was not a judgment
of non suit for any defect of proof which can be
repaired in a new action. 1t was in effect n
Judgment for the defendant non DISTANT UeredictO.
The pleadings in the matter before us disclose
precisely the same case. If the declaration dis
close Il state of facts constituting an action for
malicious prosecution, it cannot be made an
action for abuse OF legal process and malicious
arrest by calling it such.
The plaintiffs counsel stands on Granger VS..
Hill, 4 Bing.. cited in Bigelow ON Torts, p. 1S4.
In that case the defendants were charged with
abusing the process of the law in order to obtain
property to which they had no color of title, by
4OSAAAh q - VI oAASC VI q OSOh NLiSb
was not due, in order to obtain possession Of a
vessels register, which by the terms of their
mortgage was to remain in keeping of the plain
tiff and they instructed the officer if the register
should be given up not TO make the arrest. We
distinguish that case essentially from this, as will
be seen by examination of the portion of the
complaint above cited.
1t will not be necessary to cite authorities to
show that the rule of res adJudcatd applies here.
That rule is much more extensive than is re-
quired to include this case. The declarations
being identical as to every allegation, and every
necessary matter having been determined in an
issue of law in the former case, this action must
be held to be barred.
S. B. Dole for plaintiff; Castle & Hatch and
E. Preston for defendant.
Honolulu, Aug. 9th, 1878.
BEACoNsFIELD THIRTY-FIvE YEARS AGo.-I re-
member him well, says q writer in the Cincinnati
when l was q young man, full of the
same ambition as had animated himself fuIl twantv