The Hawaiian gazette., 1889-04-16

GledulUE over Is u waiver w lht
party who might have taken advan.
tage of informality or irregularity al
the proper time. The only exception
is where the complaint states no cause
of action. The doctrine is everywhere
held that no assignment of error can
be entertained for the first time on
assignment of error under the writ Oi
that name.
By THE COURT We will deal with
the fifth assignment of error first.
The assignment itself shows that il
cannot be maintained. 1t appears
that Judgment was entered on the
18th October, and the motion in arrest
of Judgment was not made until jan
uary. This was too late. A motion
in arrest of Judgment must be made
before the judgment is entered The
Court was therefore correct in refus-
ing the motion.
But if the Court had been wrong in
such refusal an exception TO the rul-
ing would have been the correct pro-
ceeding and not writ of error.
1t seems to us that counsel for the
defendant in error, states the law in
correctly when he argues that the
plaintiff in error should have demur-
red and therefore that writ of error
should not issue.
We are of opinion that if any dec
laration contains more than one
count, and one count should be bad,
and general verdict is given, such
verdict may be reversed on error.
In OCOnReU rs. The Queen, l Cox
c. c. p. IA, Tindal, c. j. drawing a
distinction between criminal and civil
proceedings Though it was held in
that case there was no distinction)
says: "In Il civil action indeed, if
the same state OF facts be supposed
that is, one count in the declaration
good in law, and others bad--a YER
diet finding general damages against
the defendant upon all the counts;
and n judgment upon the whole rec
ord for the plaintiff; the whole iudg-
ment would undoubtedly be reversed
upon a writ of error, and a UeTyie de
moro awarded. Because in that case,
the Judgment is for damages, which
are given rs well upon the bad count
rs the good; the jury having no power
to find a verdict for the plaintiff, upon
any one count, without finding in
of law, some damages
also upon that count, so that the whole
of the damages found must be
the aggregate of the separate sums
found upon the good and bad counts to-
gether and the Court cannot see how
much arises from the good count and
now much from the bad. OF Yeces-
;ity therefore, and to do justice be- |
.Ween the parties, and in order to as
certain the real damages sustained |
~ the plaintiff upon the good count |
he judgment must be set aside. No |
Judgment of court can be given on
IN uncertain verdict, and the verdict
becomes uncertain the moment the
damages, or any part OF them are re-
cradle to bad count"
Understanding this to be the law,
S contended for by the plaintiff in
rror, it becomes our duty to consider
whether the second count is bad, as
LEGGED by counsel, and if We should
e Of that opinion our judgment must
e for the plaintiff in error.
Section 1l44 of the Civil Code allows
he plaintiff to unite several causes of
elton when they all arise out of IS.
INJURIES to character"
In the case at bar the first count is
Notwithstanding it is called trespass)
count in case for malicious prosecu-
on in procuring the arrest of the de-
.ndant in error maliciOuSly and with
ut probable cause on a charge of en-
ezZlement.
The second count is, we consider,
$50 in case in maliciously and with
ut probable cause procuring the
suance of a search warrant.
1t must be admitted that the count
very loosely drawn and contains
Guidance of irrelevant matter, alto
ether unnecessary to be alleged.
ut we do not think the allegations
) to the arrest of the defendant in |
TOR makes the arrest a trespass, it
as part of the duty of the officer ex-
uting the warrant to make the :
rest, it is required by law, and the q
lrty obtaining the warrant must by I
w accompany the officer to identify
e property. The application for a
arch warrant involves an applica-
On to arrest
Wyatt as. White, 3 Hurl. and n. ).
The other allegations complained of
to damage to property and injury 4
the feelings OF the defendant and Z
5 wife and family may be cOnsid-
ed, and we do consider them, as
alters in aggravation, and not as
gued by counsel for plaintiff in
ror, substantive causes of action. -
lie form of pleading is to be depre- 90
ted, but it appears to us that the
arge made is for the maliciously
using the search warrant to be .
ued, and that the other matters are
arged as incidental thereto.
The case of HeHS,UOrh as. FdWkes, t
and Adolf. 449, is precisely in point
e head note is as follows:
Declaration lin plea OF trespass
the case) stated that the defendant,
ending to injure the plaintiff in his 81
Od name, and to cause his dwelling u
use to be searched for stolen goods, r.
to procure him to be imprisoned,
MT before justice and falsely, ma D
iOusly and without probable cause, D
lrged that certain specified goods
the defendant had been feloniOusly
len, and that he suspected that the St,
d goods were concealed in the
intiffIs Westinghouse and upon ST
IN charge the defendant procured '
justice to grant warrant author Oh
lg a constable, with necessary as
.ance, to enter plaintiffs house to 81
rch for the said goods, and the de- i
dant with the OtherpersOns, caused d
| procured the dwelling-house of So
plaintiff to be searched and rum
ged for the said goods by such per- ",
: and the door of such house and a
TRY thereto to be broken to pieces, t