The Hawaiian gazette., 1885-10-27

bill Even "if the plaintiff should mis-
tale tbe relief to which he is entitled in
his special prayer, the Court may yet at
ford him the relief to which he has right
under the prayer for general relief"
Storys Fd. Pl. sec. 4041 note z.
Cook VS.. Martin Ack. 3.
Milfords Eq. Pl. ed 1882 1923.
The same conclusion may be reached by
the doctrine that equity will exercise its
powers to prevent multiplicity OF suits.
BY THE CoURT-Weha have considered the
several points and arguments advanced on
behalf Of the parties and are OF opinion
that the plaintiff J. r. Silva and the de
PENDANTS D'Andrade and Cunha are not
entitled to the resulting damages claimed
and awarded to them.
1t is true that under prayer for gen
eral relief the Court may give such relief
as it may think the plaintiff IS entitled to
on the case as made out at the hearing.
! But in this case the Court gave the plain
tiffs all the relief asked for by their bill
and no further relief was asked for at the
hearing, or by the bill itself, and had it
been asked for we do not think it should
| have been granted.
We think the decree of the 9th day of
January. was made in error, that it is not
in accordance with the decisions of the
learned Judge (Austin) and of the full
Court. and that all proceedings under it
were irregular
This matter has now been before the
Court for more than a year, and the
defendant Lopez, having been restrained
from realizing his security, we think it
advisable to deal with the whole case now,
and thus avoid further delay and expense
to the parties.
On review of the testimony taken at
the hearing and before the Master, it ap-
pears that the plaintiff Silva was present
at the sale and so far from Directing, he
then and subsequently delivered parts of
the property sold, (cattle and horses) to
the purchasers.
Under the original decision, which was
affirmed. Silva is entitled to have the pro-
perry returned to him or to be paid its
value. but no more, neither do we think
that under the circumstances of the case
as made either he or the defendants Cunha
and D'Andrade, can recover for conse-
quential or resulting damages.
We think on an examination OF the test
mony that the amount awarded to the
plaintiffs for the value Of the cattle and
horses not returned is too much and there
fore allow to the plaintiff Silva the sum of
twelve hundred dollars instead of $500,
for such value.
We allow to the defendant Cunha, the
sum of four hundred dollars, the amount
paid by him for the cattle returned by him
also the sum of forty dollars for expenses
of driving the cattle to Waimalu, and re-
turning same making together four hun
bred and forty dollars, with interest al the
legal rate. We disallow the other items
as not recoverable.
We allow to the defendant D'Andrade,
the sum of one hundred and seventy five
dollars. cash paid for the lease purchased
by him. also 1890 for 20 head of cattle,
sixteen dollars for receiving and deliver
ing the cattle, one hundred and twenty
dollars for rent paid by him, and SIS e1-
penses of lease, and bill of sale making
altogether the sum of S719, with legal
interest. We disallow the other items as
not recoverable.
An account must be taken of the amount
of principal and interest due to the defen-
dant Lopez under his mortgage, in which
account he must be allowed the sum of
Sl20, ordered to be paid to the defendant
D'Andrade for rent, and after deducting
the sum of s., 200 with interest at the rate
specified in the mortgage, the balance
must be paid by the plaintiffs to Lopez.
The property comprised in the mortgage
must be sold under the direction of one of
the Judges of the Court, at the expiration
of one month from the date, the balance is
ascertained and proceeds paid into Court,
unless the amount found to be due is pre-
viously paid.
Each party to pay his costs of this ap-
peal and of all proceedings subsequent to
the decision Of this Court of the 10th
December, last. The defendant Lopez, to
pay the compliments costs of the suit up
to and including the first appeal
A decree embodying the foregoing
orders and directions will be prepared and
may be perused by the parties before
final signature.
Ashford & Ashford, Counsel for plain
tiffs; F. NJ Hatch and Cecil Brown, for
defendant Lopez; iona. Austin for defend
ants Cunha and D'Andrade.
Dated Honolulu, October 9Th, 1886.