The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-01-17

or where, the agreement was made.
or by whom it was written. During
all the negotiations for years, moth
ing was heard Of this agreement,
until it came up in Court. Yet the
agreement was the basis of the
plaintiffs claim. It was the first chap
ter of the case and the Court could
never get down to the question Of
custer at all. On the evidence and
the pleadings the Court must base
its decision and these showed that
the Hawaiian Commercial Company
were trespsssers from the start. As
to the question of custer, it made a
difference whether it was claimed
by the person excluding the other,
or by the one excluded. In the first
case the tenure must be shown to be
open, hostile exclusive adverse,
under claim of right But so far
as the rights of the person ousted are
concerned, it is sufficient for him to
show that he is excluded simply.
He does not need to show that he
made a great fuss about it. The
fable of the lion and Elsop he be-
lieved was written especially for this
case, just like the prophecies in the
Bible. The speaker here read the
following fable:
"The lion and several other beasts
eptered into an alliance offensive and
defensive, and were to live very soci-
ably together in the forest. One
day, having made a sort of an excur-
sion by way of hunting, they took a
very fine, large, fat deer, which was
divided into four parts; there hap
pening to be then present his males
ty the lion, and only three others.
After the division was made, and the
parts were set out, his majesty ad-
vancing forward some steps, and
pointing to one of the shares, was
pleased to declare himself after the
following manner: This 1 seize and
take possession of as my right, which
devolves to me, as l am descended by
a true, lineal, hereditary succession
from the royal family of Lion: that
pointing to the second) 1 clam by,
think, no unreasonable demand; con-
sidering that all the engagements
you have with the enemy turn chiefly
upon my courage and conduct; and
you very we'll know, that wars are too
expensive to be carried on without
proper supplies. Then (nodding his
head towards the third) that shall
take by virtue of my prerogative; to
which, l make no question, but so
dutiful and loyal a people will pay
all the Difference and regard that 1
can desire. Now, as for the remain
ing part, the necessity of our present
affairs Is so very urgent, our stock so
low, and our credit so impaired and
weakened, that l must insist upon
your granting that, without any hest
tation or demur; and hereof fail not
at your peril"
The Spreckels Co. had done
Just like the lion. 1t had not taken
the whole deer at once, but piece by
piece. In this case the defendant
did not need to go out daily and pro-
claim his title. His title did not rest
upon his proclaiming it, but was
given him by the law. He bought
it and paid hard coin for it. More
over he continually moved for
settlement and satisfaction Of his
claim. As to the question whether
proof of custer was necessary in order
to establish a claim for damages.
The case in 33 Pa, 1872, takes the
ground that the tenant who has not
been ousted but who has simply not
been in possession is entitled TO a
share in the profits. The Court was
not yet bound by the Judiciary Act
to adopt the common law. The Court
in the Robinson viii case had aban-
doned the common law, and had re-
fused to adopt the rule in Shelley's
case because it was not common
sense. He would ask the Court to
do the same thing in this case for the
same reason. Courts in ths United
States had taken into account the
rationale of the rule, and this Court
might do the same 1t not only
might, but it would not be equity If
it did not do so. Mr.. Spreckels had
been using the power Of corporations
to crush ont rivals. and the Court
should meet it on the first instance
and stamp IL out now and here, and
a better opportunity would never
offer itself than the present.
Justice Dole stated that one of the
Mr. Thurstou, had init
mated that the trial Judge was in
huenced by the wealth of Mr. Spreck-
els, which was an uuwarrantable
Mr.. Thurston disclaimed having
to imply anything Of the
kind On the contrary, he had sx-
pressly repudiated such an interpFe-
tation of his language.
The Court expressed themselves as
entirely satisfied with Mr.. Thursson's
At 4:4O PM the Court adjourned
until 10 o'clock the next morning
Continued Oh page 81