The Hawaiian gazette., 1889-04-16

lllE TIE tlASt VI CLlpl III StAlu NGlultl
and judgment as follows:
81. That the plaintiffs complaint,
i'll the second count thereof, errone-
ously joins cause of action in tres
pass with cause of action in case.
40. That the plaintiffs complaint
enormously contains two counts fol-
wrongs alleged to have been commit
ted by the same act.
80. That the plaintiffs complaint
sets forth two causes of action for one
and the same alleged trespaSs.
"a. That the jury by their verdict
in said cause found entire damages on
both counts, and not distinct damages
in respect of each or either count, so
that il is impossible to say whether
the verdict was based wholly or in
! part on said second count.
1.-The said applicant also assigns the
! following cause of error in said cause,
/ namely, that the motion in arrest of
/ Judgment for the causes above assign
/ ed was denied by Mr.. Justice Bicker-
4 ton presiding ut the last January
| Term of said Court"
Mr.. Hartwell for the plaintiff in
error argued that:
/ The second count sets forth 4
cause of action on the case in that
/ portion where it is alleged that, Gin
pursuance of the command in
/ the warrant the officers did the in
quries complained of. " If the injury
Were committed through the medium
Of and under regular process, as in the
case of n malicious arrest or prosecu-
ton, although such injury were forci-
BILE and immediate, yet the remedy
must be case" / en-. Pr 145, 10TH
An. Ed, and also where it AYERS,
Insult, humiliation and terror of his
wife, and, "that he suffered
great distress and terror and the most
humiliating insult and that
he was greatly scandalized in his bus
mess and social relations " With
respect TO injuries To reputa-
ton and health, etc. as the
property injured cannot be affected
Immediately by any substance, the
injuries thereto, however malevolent
and however contrived, cannot be
considered as committed with force.
II. al.
1t also sets forth a cause of action
in tresp0ss in that portion where it is
ayerred that the officers "accompa-
MED by said defendant with
the aid, and at the instigation, and by
the procurement of said defendant
.. instituted and conducted
search of PLAINTIFFS resi-
dence q. and ut the request and
instigation of said defendant
took certain goods, etc, and, Ear
rested and took this plaintiff into Gus
tOdy,n etc. "a tort which one di-
reefs or advises another to commit,
he is always responsible for, jointly
with the guilty agent, and his liabil-
ity does not depend upon the subor-
dinatiOn of the agent, but upon the |
direct connection of the adviser with |
the wrong.
Cooley on Torts, p. 5S4.
The acts of the officers being alleged |
in this portion of the count to have
been done ut the instigatien, etc, of |
defendant and not under color of pro-
cess, were direct, and therefore the
cause set out is trespass. Nor can it
be sold that the "request, investiga-
ton, etc. of defendant was without
effect, and that the ayerment of ii is
officers would have done the injuries
Gull ilstliltu u 1T XII GNOHlS lluuGI |
the warrant. For, the officers are
alleged to have been acting under
search warrant, SO far as acting under
a warrant at all, and nothing is said
in this count of Il warrant of arrest,
and therefore the officer had so far as
Ibis count shows, no legal authority
10 make the arrest, assault or impris- (
1nment aYerred in it.
"TreSspas cannot be joined with
,ase.n 10. 224, Arch, Civ. Pl. 100.
If the same act, namely, swear ;
ng out the warrant of arrest and ! !
earch warrant falsely and maliciously
md without probable cause, is the ;
,nly wrong done by the defendant {
,elew, two counts for that wrong are '
improper. {
Several counts in trespass for acts :
ommitted at the same time and place I
re not to be allowed"
! Ch. Pl 431, Arch. Civ. Pl. 100. t
So even in Code Pleading, In the 5
ase of tOrts each trespass or CONVEX I
ion gives right of action and but a
ingle one.n
Boones Code Pl. Sect. IS. a
Pom. Rem. Sect. ), IS and see Neu- t
dG Canal Co. rs. Kidd, 10 Cal. 1S4. h
- In the case of misjoinder, however e
erfect the counts may be in them n
elves, the declaration will be bad on 4
general demurrer, OF in arrest of e
Ingment, or upon error I
l CHI. Pr Dds. C
" If the jury tipd entire damages c
II all counts, the judgments must be C.
ntire, in which case, if one of the is
cunts be insufficient, judgment will G.
e arrested, or a writ of error be sus-
linable.n ID. 426 and see Mass. %, b
Us, and Allen So. T
The following authorities were also
ted: Of
Ddtsou as. Brddbu.y, 30 III. 50. il
CheethdHi rs. TTUOrsOn in error, ) g
Dhns. 49, h
Cooper rs. BisseH in error, Is Johns. al
Rackos Us. Richardson in error > Ii
bins. III. ci
Campbell rs. Stakes in error, ? OF
lend. 147. st
Van Rensselaer, rs. Piatner, , Johns. sa
as. Is, p, %. pl
Ben rs. LoUctt in error, 10 Wend. ST
blanchard rs. Fisk, , Nh. 39S. il
Sprecker rs. Grant, Is Serg. q r. 81
Peakc Us. Oldham in error, Cowp. fe
8. al
rs. Parkes, Bos. & PuI. til
Corner Us. Shetc, VI. & w. $50. so
CorbeH rs. Pdckington, s B. & c. pa