The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-09-22
DIGEST OF HAWAIIAN LAWS.
BY M. Thompson, of the Honolulu
Bar.
Movable and Immovable Fixtures-Con-
tinued.


Fixtures cannot be taken or removed
under writ of repleUin. writ of repIevin
is effectual for the delivery of personal prop
erty only, and it furnishes no justification to
an officer who, under it, sewers and de-
livers part of the realty (19 Penn. st., III.
But if a fixture or other part of real esta te
be wrongfully detached from the freehold
the thing detached becomes the personal
property of the owner of the soil, and he
may, in general, maintain, trover or re-
plevin for it's recovery. (35 Barb, 3d.
Fixtures, when severed from the freehold,
again resume the characteristics of personal
chattels, and the action in regard to them is
governed by the rules similar to those appli-
cable in ordinary actions relating to personal
property. When severed and carried away
the proper way is by an action Of trespass de
bOniS aspOrtatiS. C19 Barb, 317; Mees.
and W., ia; II Penn. St., 3O4; and see Act
for recovery of personal property, Session
Laws of 1884, p. II, ct seq And the land
lord owner of the soil is entitled to the
same remedies for the recovery Of the things,
whether taken away by the tenant or by
stranger. And although the property in
fixed articles may belong to the landlord by
the terms Of the demise or otherwise, the
tenant may nevertheless maintain trespass
de 6onis osportatis against stranger who
wrOngfully removes them; for he has, dur
ing his term, a special property in them. q
Or. NJ. and M, III; Mees. and W., 400;
and see also Session Laws 1884, p. II ct seq
1t has been held that the tenant and land
lord may both maintain actions at the same
time for injuries done to the estate; the ten
ant for the interruption of his estate and
diminution of profits, and the land
lord for the permanent injury to
the property. $50 N. H., 80; z
Mich, 423) But none can maintain an
action of trespass guare clansuna fregit,
but he who has possession in fact of the
land. Thus, one who has leased his land for
years, or even at will, cannot maintain this
action against stranger for any injury to
the possession, while in the actual occupa-
ton of his tenant. (8 Mass. AIS; 1 Johns,
511; but see IL Mass, $50 Nor can land
lord maintain an action of trespass qatare
clGnsu1r1, pending the term, against tenant
who has wrongfully severed from the free
hold articles put up by himself during the
term, or which were demised to him, to-
gether with the premises. 81 Penn. St., 155;
Amos. i Fer. on Fixtures, 1921
The remedy by an action at law for in
juries done to the freehold by the removal
of fixtures is slow and frequently made
quate. The Courts of equity, therefore, in
many cases, interpose their aid by means
of an Injunction; but relief by this means
will not be granted on slight or uncertain
grounds, and it must be made to appear
that there has been actual waste, or some
act from which the intention to commit
waste is fully evinced. q Atk. 1873; z YES,
800; IL Wis, 1881 Where lessee began to
pull down and remove a brick building on
the land, an injunction was ordered, with
damages. (19 CAL, 354.) So, a perpetual
injunction was granted against the
removal of greenhouses built in
a garden, and constructed of wooden
frames fixed with mortar to the
foundation walls of brickwork. az W. R.,
1897 And an Injunction was likewise
granted to restrain the purchaser of boilers
supported by brickwork from removing
them and other trade fixtures. e Johns. i
Hern., 500. An injunction against waste
will not, however, be granted where the
article in question is mere movable fix
ture and not annexed to the freehold; as
for instance, in case of doyecote, and the
removal of locks from the doors of house,
the chains from lawn, the statues, images
and fences from pleasure grounds, ward
robes, presses and closets, forming part of
the wainscOt of the house. 2 Yes. 4 B.,
349). But the fact that injunction is
denied does not at all affect the right of the
party to any remedy he may have in an
action at law for the injury or wrong done.
The test by which the amount of damages
is to be ascertained is in general
the same both in contract and in tort, with
this distinction, that the intention with
which contract is broken is perfectly i'm
material, while the intention with which
tort is committed may fairly be regarded by
the jury in assessing the amount of damages;
and generally the Court is not particularly
careful to weigh Gin golden scales the dam
ages recoverable in tort. brownies Dict,
1922 In both cases, however, the general
rule is that damages are, and ought to be,
purely compensated They should be pre-
cisely commensurate with the injury, neither
more or less. III Johns, 136; Waits Law
and Pr, GAS; 16 Am. Rep, 27O; Mass, ESQ;
DALI, 207.) But there are certain cases in
which the Courts permit a jury to give dam
ages which exceed the measure OF legal COM
pensation, and this by way of punishment to
the wrong-doer. (53 n. Y. / 8 Sick. al.
The subjects of the next chapter will be
''Notaries Public, Law Merchant, Bills and
Notes, etc.
While the Rev, G. E. Grosser, assista at
the Reformatory School, his wife and family