The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-01-17

Tor the BldlntIu Tor ST. and costs.
The fact that Defendant animals were on
Plaintiffs land for the time charged. without
license, - not IN controversy, but the Defendant
pleads that this action IL barred by an action and
judgment between the same subject matter, on
the 18th Of March, and submits the record Of the
District Court, which is substantially as follows:
KIwaha
vs. District Court Of Eva.
Makue- March 18th, 1879.
a trespass suit between Kiwaha, owner of land,
and Makue, owner Of animals, for the trespass
(komOheWa) Of eight horses on Hanaloa, on the
I2th day Of March, which horses were lawfully
impOunded on the 18th Of March. Judgment Is
given for the Plaintiff for two dollars and the
costs Of Court.
Ii will be observed that the above record is in
complete, in not setting forth the amount for
which Plaintiff sued. We are not furnished
with the summons IN this case, which might state
the nature OF the action more particularly, and
in order to learn what was the issue in the first
case and the relation it may bear to the second,
we resort to such testimony as was presented.
We do this upon the principle that it might be a
denial OF justice IN reviewing proceedings OF Dis
trict COurts, where IL - alleged that there was
error Of law, to cOnine our view TO the very I'M
perfect record which Is generally kept by them.
In the Intermediary Court, the same motion was
made to dismiss on the ground Of res GdJudicGtG,
but the Magistrates record was not then submit
ted and the motion was OverTuled.
From the Plaintiffs testimony, and the above
incomplete records, 1t is made TO appear that the
land IN question came into Plaintiff 8 possession
September 9th 1878. That there were then run
ming thereon the Defendants eight horses, as
well as horses and mules belonging to several 9TH
CT persons. That about a week prior to March
18th, the Plaintiff notified the Defendant and
others to remove their stock and demanded g
per head as a charge for pasturage up to that
time. The Defendant refused to pay. On the
18th. the Plaintiff arrested the Defendants ami
mals and impOunded them on the 18th. The 9TH
err owners OF ANIMALS paid the demand of 81 per
head, and It does not appear whether these ami
mails were taken up, or payment made on the de-
mand. March 18th, the parties came before the
District Court on the case above quoted. We are
LETT to infer, that the proceeding was the one I'M
der the Statute where the owner of impOunded
animals deposits the amount claimed, OF a bond
with the District Judge, who issues an order for
the release from the pound and afterwards tries
the question Of the legality Of the impOunding or
of the amount Of damage. We must conclude
this was the case before the Court, Tor otherwise,
the PIaintihis demand would have been collected
by the pOund-keepeT.
In the Intermediary Court, Plaintiffs testi-
mOuy herein IL as follows :. After / arrested
the horses, MIakue came and asked how much
damage per head, / SAID 8 each. lie refused
and 1 put animals IN the round. Case was tried
and Statute damage awarded for single trespass.
Then / brought action for trespass claiming pas
turuge, and judgment was given IN my favor
mus 10 appears LuaL Il1luLiu presented TIE
same case in bis action Of March 18th, and IN
that Of March 9th, OF at least the latter covered
everything except the trespass existing ON the 18th
Of March, when the horses were taken up, and
the Erst case included what was claimed in the
record.
We are OF opinion that the whole matter was,
IN the first case, before the District Magistrate.
Under the Plaintiff claim be had jurisdiction to
consider tme amount due for a trespass OF n single
day or tUat had continued over several months
and terminated by ImpOunding. The claim was
for the pasturage during the time from Septem-
Der 9Th to March l2th upon a gI1Hfum meTu1f,
and tor this he awarded the Plaintiff tor all the
horses two dollars, or 20 cents each.
II the Plaintiff were not satisfied with this, he
might have taken his appeal, instead of which he
brings the second action. From the fact that
the Magistrate gave him judgment again, and for
nearly the amount claimed, 10 ~ probable that
he refused to allow the claim IN the tTst instance
on the ground that be could In an action concern
ing rmpounding, award only the damage for the
trespass Of the single day, when the horses were
taken mp. This point, or the whole case WAS
subject to appeal, and we think that the Plain
tiff, by not taking that course Is closed of farther
action in that subject matter. He rested in the
adjudication made and cannot institute another
action.
Thejudgment Of the Intermediary Court con-
frming the Judgment Of the District Court is set
aside
Judgment for the Defendant with costs.