The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-08-02
OPINION OF THE COURT BY FREAR J.

OPINION OF THE COURT BY FREAR, J.
The plaintiff moves for a rehear-
Ing on the grounds that the Court
decided the case o. as if the
plaintiff was not receiver, or as
II the defendant had asked and OBJ
tanned leave of the Court to dis
train, and (2) as if the question
submitted was whether part of the
goods distrained could be held for
part of the rent, which facts and
questions, it is alleged, were not
agreed upon or submitted to the
Court.
Defendants counsel contends
thatarehearihg cannot properly be
allowed before this Court as at
present constituted, there having
been a change in it's membership
since the former hearing. While
this may be entitled to some weight
as a reason why the Court should,
in the exercise of It's discretion, re-
fuse a rehearing, we cannot 60 go
far as to hold that as a matter of
right a rehearing cannot be allowed
in any case where the Court has
become differently constituted. To
so hold, might occasionally work
great injustice. The Court remains
the same, whatever changes may
occur in its membership.
The first ground for the motion
was argued by plaintiff counsel
at the former hearing, or at least In
his brief then filed, and was also
passed upon by the Court ia its de-
cision in the following words: las
the submission raises the question
whether Mr.. Campbell was legally
entitled to distrain for his rent, we
do not consider that it is embar-
raised by the fact that he did not
apply to the Court for an order.
That method would have raised
the same question that is now
raised" Where a point is raised
at the first argument and is not
overlooked by the Court in its de-
cision, it is not, except perhaps In
n very clear case of error, proper
ground upon which to base a mo-
ton for rehearing. The question
submitted was whether the defend
ant could legally distrain, and not
whether any particular method OF
making t. distraint was legal.
This is)the view the Court took and
it decided that a distraint could be
legally made.
AS to the second ground for the
motion, the Court did not hold
that the goods taken from both
stores could be held for the rent OF
one of them, but that the goods
taken from one could be held fol
the rent of that one alone. But II
is contended that the claim was
not Invisible, and that therefore
the Court could not properly de-
eide as it did. This point was moi
raised ut the first hearing. lr
general, except where decision
is in conflict with an express sta
tute, or with q controlling decision
to which the attention of the Cour
was not drawn" a motion for re
argument should be founded or
papers showing clearly that some
question decisive of the case, anc
duly submitted by counsel, ha!
been overlooked by the Court.
Kenway VS.. Motley, 5 Haw., 129
Payne VS.. Treadwell, Is Cal, 247
Dougherty VS.. Henarie, 49 Cal.
CSC. As already said, the frs
point was not overlooked by thu
Court. The second point was no
raised by counsel. We may ado
that it does not clearly appear tina
the claim is indivisible. Th'
amount of rent due in respect o
each store is separately stated IL
the submission, and it is also statet
that a distraint was made upon tn
goods in each store. There wa
evidently no intention to make tn
question of the right to distraln II
one case depend upon the right t.
distrain in the other. The poln
raised is an exceedingly techniea
one at best, and not in accord witt
the spirit of the submission, or tn
evident understanding of the de
PENDANT. We think it would no
be in the interests of justice t
grant n rehearing, and, in the ex
ercise of our discretion, decline t
do so.
A. S. Hartwell for plaintiff; {
Brown for defendant.
Honolulu, July %, 1893.
zyt~,&.<, ,,o1rJsfs, enid