The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1878-08-24
THE PACIFIC
Commercially
SATURDAY Y. AUGUST "a.
COURT OF THE HAWAIIAN
ISLANDS-JULY TERM, 1873.
KAUHASE n HUsBASD rs. KALI.
HARRIS, &. j., JUDD AND MCCULLr, j. j.
Opinion By Judd, j.

Opinion by Judd, j.
1t appears that although in the declaration the
plaintiffs claimed the entire premises IN Zee, the
fact was that they were only entitled 30 one-hali,
and were tenants in common with the defendants
wife, whose infant son held the widows assign
ment of dower.
The title was admitted by the parties to stand
thus, and the plaintiffs asked to be heard on their
claim for damages.
The defendant then moved to dismiss the cause,
on the ground that the declaration showed no
cause of action for damages as against a co-tenant.
The declaration, as we have seen, claimed the
whole land.
In Mammal vs. Lai, 3 Haw., 3l7, this Court
held that, on a declaration to recover the entire
estate, the verdict being for a moiety only, Judg-
ment could be pronounced CD the verdict for the
moiety, although there was a variance between
the allegations and proof. The Court there says
that our statute would allow an amendment even
after verdict, to make the declaration correspond
with the verdict.
in the case at bar there was clear evidence of
an actual custer of the plaintiffs by the defend
ant, which is requisite In order to enable a CO.
tenant to bring e~jectment.
The declaration AYERS that the possession of de-
PENDANT Is in contravention of plaintiffs legal
rights and to their damage of 81 900.
This, coupled with defendants disclaimer as to
an undivided half. and plaintiffs admission at
the trial that defendant was entitled TO one I'M
divided half, would certainly be sufficient to
charge the defendant with damages for the custer,
an actual custer having been proved. But coun-
sci for defendant argued at length the further
question, that the allegation of damage is not
sufficient to charge defendant with mesne profits,
whereas the damages found by the verdict were
mesne profits.
Silloway VS.. Brown, II Allen, 80, is cited by
defendant. Here the Court say There is no
reason why a tenant in common, rather than any
othar nnrcon mt n = Gapf ont IF nOsSaGSiop of his
estate, should be denied the election of suing in
trespass and limited to a writ Of entry, IN which
he could recover no damages for the injury to him
by the expulsion or custer. We are therefore
satisfied that upon principle and according to the
weight of authority, he may under such circum-
stances maintain trespass qudre CLduSuDp Jreglt."
But in this case the Court held that the tenant
was not liable IN an action Of repleyin for taking
all the crops.
In Badger vs.. Holmes, 6 Gray, lis, the Court
said that : : the facts do not show that the defend
ant has occupied the premises to the exclusion OF
the plaintiff, -" and therefore held that the plaintiff
could not recover for use and occupation.
In Livingston VS.. Tanner, II Barb. 4S1, it was
held that the New York Code, while it allows
damages for the custer and the rents and profits
to be recovered in the same action, recognizes the
distinction between them and also in Larned VS..
Hudson, 81 N. Y. Isl (1874), it was decided
that O claim for damages for Withholding pos
oCoCAOh VI 1Cd CChdbO OOOo hOG AhNluuO II III
and profits thereof during the time the possession
has been wrongfully withheld that is a separate
and distinct cause of action.
We have a similar provision in our Code, sec
tion / IA, which allows the uniting in one action
'' claims to recover specific real property, with or
without damages, for the withholding thereof, or
for waste committed thereon, and the rents and
profits of the same" These last authorities IN.
" seem strong in favor of the defendants posi-
ton, that as the proofs must correspond with the
allegations, and as there is no specific claim for
rents and profits, the plaintiff cannot recover
them as damages for Withholding the possession
of the real estate.
drews, 6 Cush. 265, it was held that the provi-
sions of the Revised Statutes, chapter I0l, for
the recovery by the demandant in a writ of entry
of damages for rents and profits and for waste,
supersede all previously existing remedies there
for at common law, and such damages need not
be specifically demanded on the writ. The sta
tute provides that if the demandant RECEIVERS
Judgment in a writ of entry, he shall be entitled
to recover in the same action damages for the
rents and profits of the premises from the time
when his title accrued, also for waste. In this
case, Chief Justice Shaw says: " IS a claim for
mesne profits is incident to a legal claim to the
land, a writ containing a demand for the land
does necessarily draw in question and put in issue
a claim for the damage, if any exists"
a similar practice prevails in California.
Section l18 of our Code prescrlbes that in
actions to recover at law any specific property,
real or personal, or any specific share or interest
or right to property, real or personal, in kind,
&C.. as in e~jectment, the plaintiff may file a petit
ton according to a form prescribed.
In this form the expression is used, 9 or If in
eiectment, state in lieu of the value, to the
damage of said plaintiff - dollars and
allows damages for the detention of the real
estate to be prayed for. This form is snbstan-
tally followed by the plaintiff in this case, and it
is the form which has been used in this Court for
many years, and upon this allegation of damages
mesne profits have been recovered in eiectment
without question. We think the plaintiff is safe
in following the statutory form, in that the words
g to the damage of the plaintiff - dollars :"
arc sufficiently full to apprise the defendant that
a claim is made for whatever damages can be
shown are incidental to a legal claim for the
land, which will fairly include mesne profits.
This exception is therefore oyerruled. A con-
trary ruling might admit the right of parties to
bring suits for mesne profits on all the actions of
eiectment entertained in this Court for six years
past, where merely nominal damages had been
recovered, or even where general damages for the
detention of the real estate had been recovered.
The second exception is that there was no evil
dence on which defendant could be charged with
damages or for rents and profits. As we find
that there was evidence tending to so charge the
defendant, on which the verdict was based, there
was no ground for non-suit, and overrul. this
exception.
CHAs. c. HARRIS.
a. FRANCIS JUDI.
LAWRENCE MCCULLY.
j. NJ. Davidson for plaintiffs a. S. Hartwell
for defendant.
Honolulu, August 18th, 1878.
July TERN, 1S7S-KAUHANE tw.) Ell AL. VS.. KALU.
Findings of the Court.
l find it to be proved that Keliikoa, the
grantee in the Royal Patent No. 1896, deceased,
leaving a widow and two daughters, one of which
daughters is the plaintiff in this action-Kau-
hane; the other daughter was the wife of Kalu.
the defendant, and the mother of his children.
She is now deceased. Consequently the widow
was entitled to her right of dover and each one
of the daughters TO half of the land subject to
the widows DOVER. The widow assigned her
dover to her grandson by a deed dated 23d of
June, 1873. The defendant is the father of the
said grandson and his guardian, and conse-