The Hawaiian gazette., 1893-01-10

prietor.
-
ONION OF THE COURT By DOLE, J
The plaintiff claimed of the de
tndant S352.40 for damages to hi.
flaming mill on the essterly side o.
Aakea street, in Honolulu; in tina
Z defendant failed to provide sufh
cint drainage for the surface watel
ofthe said street. and unlswfully
sd wrongfully cut trenches acros:
theidewalks of said street, whereby
lare quantities OF surface water
wel caused and suffered to flow
froi said street to and upon the
platiff's premises, causing great
injUy to the betting, pulleys and
msainery Of said mill, and putting
hinto crest expense in pumping the
saiC water therefrom. and causing
hinto lose much time IN the carry
ingn OF his business.
Tie defendant demurred to the
deckation, and for cause of demur-
rer, said that the " complaint does
not tate facts sufficient to constitute
a case of action The demurrer
was,verruled, and no appeal taken.
A. the trial Of the case on
the merits, the defendants coun-
sci, at the close of the evidence
for ae plaintiff, moved the court to
instIct the jury to find g verdict for
the isintiff, on the ground that no
habity had been shown on the part
of tb defendant. which motion was
overuled and exception noted.
TIE defendant asked the court TO
giveertsin instructions to the jury.
whih the court refused. deeming the
ehsEe already given TO be sufficient.
Nc gception was made to this by the
deASdant The charge. as given,
substantially covered that portion OF
the Instructions requested by the de-
fendnt, which II was entitled to
haveto go to the jury
Tn verdict was for the plaintiff.
whielwss excepted TO by defendant,
and il motion for q new trial was
thereafter overruled by the presiding
Judge from which decision excep-
tions rere taken to this ceurt. The
grouis of the motion for new trial
were aese:-
1. Errors of law occurring at the
trial ad duly excepted TO by de
tendst
2. lat the verdict is contrary TO
the lsvand the evidence
8. lie verdict is against the !
weight)f evidence.
At te argument before the full |
court tie point was raised IN behalf |
of the defendant that the govern
ment islot liable for torts. As this
contentin hsd not been made before
in the curse of the proceedings. We
have hal some doubt whether 1t can /
be mad now. But no objection
having ben taken against its con
sideratiu BY the plaintiffs counsel,
we havesoncluded to admit il under
the genial exceptions TO the refusal
of the curt to grant the motion for
non suit which was based on the
ground tat no liability of defendant
had beeI shown. and upon the see
ond exce6on to the refusal Of the
court 70 low the motion for new
trial, j. e that the verdict was con-
trary to te law and the evidence.
1t is aditted that the government,
as such, onnot be sued by private
parties whout its consent; and the
question pom this point is merely
whether te consent given by Chap
ter 81 of te Lsws Of 1855 includes
claims airing from torts ss well as
contracts, : is limited to contracts.
The see9d section of said chapter
is as follos: Whenever any citizen
of this kDdom, or other person,
shall have sclsim or claims sgainst
the Hawaan Government which
ssid government shall refuse or neg
lect TO salty or adjust, It shall be /
competentor such person to bring
and msintil & suit or suits against
said government in any appropriate /
court Of reod of the kingdom for |
the purpos of adjudicating such
claim or Clans
The defdant counsel contend :
that these pris only authorize suits
against tn government based on
contracts. I'd although the word
''elsim" IL e statute Is of general {
signifeane6t Is argued on behalf of /
the defendt that its meaning is 6
controlled 7 Section of the same 9
act, which provides for bringing i
suits by theaawsiisn Government. '
IN order tosollecf or recover any S
money or patty, or torecoTer or OBJ {
tain the passion Of any specific 5
property. Teahr personal, or TO en- {
force am otsr right, except in q
respect to ermsl prosecutions I
IEn Ne MT {, 4 =,