The Hawaiian gazette., 1889-10-01

T
that he knew off," that is not suffi-
cient a party must use due dilie
gence to procure all the. important
evidence that exists, he must
search for it wherever there is a
probability of finding it. In the
case at bar it appears by the affida-
Wits filed in support of the motion
that both of the alleged newly dis
covered witnesses were employees
of Mrs. King and worked for her
upon the same fence that plaintiff
worked on, and one of them is still
living at Halawa, on Molokai, the
residence of Mrs. King during the
time when the plaintiffs services
are alleged to have been performed.
The other new witness is now liv-
ing at Waianae, on the island of
Oahu. 1t seems to us that both of
these men would naturally have
been thought of by the plaintiff as
probable important witnesses for
his contention, but it does not APP
pear that he made any effort to
find them or took the trouble to ask
them what they knew, or that there
were any obstacles to his procuring
them for the first trial. 1t looks
very much as if the same diligence
shown in looking up evidence for
new trial would, if it had been put
forth, have procured this newly
discovered evidence in time for the
first trial.
We therefore confirm the ruling
of Mr.. Justice Bickerton denying
the motion for new trial.
A. Rosa for plaintiff; Cecil Brown
for defendant.
Honolulu, Sept. u, 1889.
In the Supreme Court of the Ha-
waiian Islands-In Banco. July
Term, 1889.
THE HAWAIIAN GOVERNMENT VS..
THE HAWAIIAN TRAMwAYs
COMPANY LIMITED, A FOREIGN
CORPORATION; AND THEODORE
GRAHAM GRIBBLE.
In Equity. Appeal from Decree of
Dole j.
BEFORE JUDD CD, M'CULLY, PRESTON, BECKER
TON AND DOLE, u.
Opinion of the Court by Preston, j.
This is an appeal from a decree
of Mr.. Justice Dole allowing a de-
murrer for multifariousness and
dismissing the plaintiffs bill.
The substance of the bill and de-
murrer is sufficiently set forth in
the opinion of Mr.. Justice Dole.
We agree with the result arrived
at in the case, but desire to point
out more specifically where we con-
slider the frame of the bill objec-
tionable.
"To lay down any rule applicable
universally, or to say what consti-
tutes multifariousness, as an alb
stract proposition, is, upon the au-
thorities, utterly impossible. The
cases upon the subject are extremely
various; and the Court, in decid-
ing them, seems to have considered
what was convenient in particular
rather than to have
attempted to lay down any absolute
rule" Campbell as. MacLeay,
Mylne & Craig 617, per Lord Chan
cellor Cottenham).
But although this bill is multi
farious, no advantage has been
taken of it by the pleadings, nor
was the objection stated at the hear
ing. The objection must be taken
by demurrer or plea, or be set up
in the answer, and if it is not, the
defendant cannot claim any benefit
from such defect. But though the
party may waive the objection, the
Court, propriO j1tre, may dismiss
the bill, and will do it, where the
form of the bill embarasses the
Court in the administration of JUS
tice." (St0ayze as. Stoayze ct a., 9
n. J. Eq. 279, per Williamson,
ChancelloD.
Adopting these principles as cor
rect, we proceed to consider some
of the allegations and prayers in
the bill.
1t is alleged that the defendant,
the Hawaiian Tramways Company,
is a foreign corporation, and that
the defendant, Gribble, is the agent
or manager of the company, and
so acts in and about the
construction and operation of the
street railways of said company in
Honolulu, and that said company
claims to be possessed of the fran
chlses concerning the construction
street railways conferred upon w.
r. Austin, his associates successors
and assigns, by Chapter XXXIV.
of the Laws of 1884, Chapter XVIII.
of the Laws of 1886 and Chapter
of the Laws of 1888, and
that the plaintiff believes the COM
pany to be so entitled.
Paragraph four of the bill is i'm
pOrtant and is as follows: