The Hawaiian gazette., 1890-02-25

The defendant pleaded in abate-
ment of the action, that the COM
plant is not signed as required by
law and is not the complaint of the
Hawaiian Government, and that
there is no warrant or authority of
law for an action to be filed on be-
half of the Hawaiian Government
by an attorney other than the At
torney General. The body of the
complaint opens with the following
words "The undersigned the
Hawaiian Government by Clarence
w. Ashford, Attorney General of
the Kingdom plaintiff herein, COM
plains etc., and is signed "The
Hawaiian Government by Clarence
w. Ashford, Attorney General by
A. P. Peterson plaintiffs attorney"
The complaint is sworn by A. P.
Peterson "as attorney for and on
behalf of the plaintiff"
The decision appealed from, over
ruling the plea in abatement, is as
follows:
"This suit is brought in the form
required by the statute of 1888.
The plaintiff is the Hawaiian Gov
eminent by the Attorney General.
Though the complaint is attested
by the oath of the attorney who
acts for the Attorney General,
there is here no delegation of au-
thority to one unauthorized by the
statute to bring a suit. 1t is not as
if the suit had been brought by the
Hawaiian Government by A. P.
Peterson, plaintiffs attorney.
do not see the necessity of the
Attorney General signing and
swearing to every complaint of the
Government in person, if indeed
any oath is necessary to such a
complaint, where the action is
brought by the Attorney General,
ex-oficio. And there is nothing in
the law to prevent the Attorney
General appearing by counsel in a
civil action of the Government.
Defendants in these cases ought to
be assured that the suit was in fact
instituted by the Government. In
the case before me, the appearance
of the Attorney General on this
plea is a sufficient assurance.
This was the view taken by the
Court in Commonwealth VS.. Conn.
r. R. R. Co. Is Gray, 447,-After
the Attorney General has appeared
in the Court of Common Pleas and
authorized the further prosecution
of an action, there pending on
appeal, commenced in the name of
the Commonwealth in Police
Court, to recover a penalty, the de-
PENDANT cannot object that the suit
was instituted and prosecuted in
the Police Court without the auth
ority or knowledge of any public
prosecutor.
| therefore override the plea and
the defendant may answer in ten
days"
The case comes to us on the de-
PENDANTS appeal from this decision.
1t seems to us that the complaint
is within the "act to provide for
the bringing of suits by or against
the Hawaiian Government" The
requirements of the statute in the
case of suit by the government,
is that the Attorney General may
bring and maintain such suits and
that they "shall be entitled in the
name of the Hawaiian Government
by the Attorney General of the
Kingdom against the party or
parties or thing sued as defendants
or respondent"
Section 1899 of the Civil Code
provides that every civil action
hereafter to be tried in any of the
courts of record of this King
dom, shall be commenced by
petition, which petition shall be
verified by the oath of the
plaintiff, or some one in his behalf,
depOsing to the best of his know
ledg and belief. +" Under this
statute it has become a matter of
accepted practice that attorneys at
law may sign such petitions for
their clients as well as verify them
by oath. The law for bringing
suits by the Hawaiian Government
does not provide that the petition
of the Hawaiian Government shall
be signed and sworn by the Attor-
ney General, but simply that he is
competent I" to bring and main
tain" such suits, and that they
must be entitled in the name of
the Hawaiian Government by the
Attorney General of the Kingdom"
AS long as the latter requirement is
observed, as we consider it has been
in this case, the Attorney General
may being the action through coun-
sci according to the recognized
practice, and such counsel, as in
the case of other suitOrs, may sign