The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-10-26

OPINION OF THE COURT BY BECKER
TON, J.
The libel and complaint in this
case alleges First, that the steam
ship Gaelic arrived at the port of
Honolulu from Yokohama, port
in Japan, having on board foreign
merchandise, including the goods
and merchandise mentioned in the
exhibit attached, which were in
voiced to S. Ozaki, of said Homo
lulu.
Second. That on, to wit, the
18th day of May, A. D. 1894, the
said goods were entered at the Gus
tom House in said Honolulu, by
said S. Ozaki, as and for a total
value of, to wit, One Thousand and
Ninety-one and S3-l0O Dollars
Isl, 091. S3) whereas in truth and in
fact the said goods then and there
were of the value of, 70 wit, Three
Thousand Six Hundred and Sixty
four and 2S-100 Dollars 1864. 81,
as this libellant is informed by
competent appraisers, and so be-
lieves."
Third. That the invoice of said
goods, as libellant is likewise in
formed and believes, was false and
fraudulent invoice in respect of the
value of said gools, and in such
false and fraudulent condition, was
by the said S. Ozaki, passed through
the said Custom House"
Fourth. That said goods there
upon became liable to seizure and
confscation, and that this ibellant
has seized the same for said pur-
pose"
Fifth. That all and singular
the matters herein stated are true,
and within the jurisdiction of this
Honorable Court" And prays for
process against the said goods, and
that said Ozaki and all other per-
sons claiming any interest therein
may be summoned to appear to
answer the libel and that said
goods may be declared forfeited and
confscated to the Hawaiian Gov
eminent and be sold as required
by law and for such other relief or
order as may be Just.
The order for process as prayed
for was made and return of
service made on the summons
August IA, 1894. On the 31st
of the same month, said S. Ozaki
filed a plea to the jurisdiction
wherein he submits and says,
that it does not appear from said
complaint or libel that this Court
has any jurisdiction to hear and de-
termine this cause, for the reason
that it does not appear from and
by said complaint or libel that the
goods therein alleged to have been
falsely and fraudulently entered
and passed through the custom
house at Honolulu, or any of the
same, are now, or were at the time
of the filing of said complaint or
libel, in the custody of said Col
ector-General, or elsewhere within
the territorial Jurisdiction, or within
the custody or control of this Court,
or of any of its officers. Wherefore !
this appearer submits and prays
that said complaint or libel may be |
dismissed, with costs to this APP
pearer."
After argument by counsel on
both sides the libel was dismissed, |
and the Attorney. General, on be- |
half of said libellant, appealed |
from the said order dismissing the |
libel to this Court.
The only question now before this
Court for consideration is: Are
the allegations in the libel suffi-
cient to bring the matter within the
jurisdiction of the Admiralty |
Court! we are OF the opinion |
that they are.
1t is commended by respondents
counsel, that it is essential to the
Jurisdiction of the Court that the
res should be in the custody and
under the control of the Court.
Such custody may be either actual
Or constructive, but it must exist,
and should be alleged in the libel
Dr. otherwise be made to appear as
This, in the main, is
Dur understanding of the law, and
S undoubted. Several other points
are raised and argued by respond
.nt's counsel, which may, perhaps,
De properly raised in the trial of
he case on its merits, but are not
or our consideration now on this
,Dneal.