The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-09-21

''(Signed)

N
mark. .
The Halakaipo who signs this paper was the
owner of the land, and the person from whom
the present title is derived. She died in the
month OF June, 1876, not having executed the
deed. kuawela, the plaintiff, has been on the
land, ever since the date of this paper, and before
that date, and has built a cottage on it. But il
IS objected to this writing that it is signed by a
mark, and the signature is unwitnessed by any
one, and therefore the writing is not within the
spirit OF the IO53d Section of the Civil Code,
which states that 81 no action shall be maintained
to charge a person upon any contract for the sale
OF lands unless the promise, contract or agree
ment, or some memorandum or note thereof.
shali De IN writing and is signed by the party to
be charged herewith"
The Court is of opinion that this is a sufficient
memorandum if the signature be proved. OF
course such n signature would have to be proved
either by direct testimony of people who saw it
written, or by undoubted admissions of the marty
sought to be charged but if fully proved would
be as good a signature as though the woman had
signed it by letters.
But there IS a plea in bar set up to the effect
that a bill similar to this, was filed on the 9th
August, 1877, and summons duly issued that
on the Sd of September the defendants filed their
general and special demurrer, and on the 2oth of
November a decree was made dismissins the said
bill and further, that on the 18th day of Octo.
Der, preceding said 18th of November, an agree
ment was made between the parties, that If no
injunction were ordered in pursuance of the prav-
er of said bill, the defendant in the bill, who was
plaintiff in a suit of ejectment then pending.
might take judgment and it is argued here that
according to the memorandum of the Clerk the
bill was dismissed generally without reference to
the points of demurrer. On consultinp the
Clerks memorandum, such appears to be the
fact. But this was merely the Clerks memo
randum, and as soon as the Judge was apprised
of 1t, it was his right and duty to make whatever
corrections were necessary, and be did SO. saving
that he dismissed the bill for it's formal inaccura7
cies, without prejudice to the plaintiffs right TO
bring a new bill. He says he preferred that
course to allowing them to file an amended bill.
because the inaccuracies were so numerous.
As we understand the agreement of the 4tb of
October, it was an agreement that the defend
ants In the bill should take judgment in the eject
ment suit, providing the injunction was denied.
Now no injunction was denied but as the Judge
says, in his opinion, the bill was dismissed with
out prejudice and they were advised to bring a
new bill. But on the 18th of February, 1878,
the plaintiffs counsel filed a new agreement in
the following words:
In the Supreme Court.
Burgess VS.. kuawela. Action at law for Eject
ment.
Kuawela vs.. Burgess. Suit in EQUITY for In
junction against action.
Consent for judgment. Judgment in favor Of
Burgess may be entered in the above entitled
cause. {
W:R: CASTLE, Attorney for Kuawela. c
Honolulu, Ii. l., February 18th, 1878. c
This Is a positive agreement, made seven c
months after the proceedings have been COM +
nenced in the case, with a full knowledge of all !
he facts, and we think it binding upon all the I
PARTIES. Judgment was entered upon it and T
of possession was duly issued. There is no Il
eason shown why this last agreement shall not II
re taken as conclusive between the parties. for v
ught that appears in the bill or is made to ap- n
ear at the hearing. There could have been no II
Their intention. for unless such be the intention. q
be agreement is absolutely useless. a
The plea in bar is sustained and the bill is o.
ST
CHAS. c. HARRIS. VI
a. FRANCIS JUDD. d:
LAWRENCE MCCULLY. ID
Castle q Hatch for plaintiff A. S. Hartwell eT
II defendants. tn
Honolulu, Aug. 18th, 1878. W