The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1894-03-23

complainant 10 respond for Its use oi
the common property.
After the decree. re pendent moved that
an account be taken for the use Of the
common property since the Hugauon
began. on the 10th June, 1891. on the
ground that this showed an custer and
an exclusion OF the respondent.
Held. that the decree found no liability 70
account for the whole period TO its
date. covering the time now mentioned
in the motion and II was res dGj"aioHfa.
Where an accounting between parties is
ordered il covers the damages that
arise pending the litigation mp 70 the
date OF the closing of the account.
OPINION OF THE COURT By JUDD, CT.
On the 18th September, 1898, this
Court. on appeal. held that no custer
hsd been shown to have been made
BY the plaintiff corporation OF the
respondent. and therefore the de-
fendsnt corporation was not entitled
to an account of the profits made by
plaintiff out of the common estate.
Aud on the Dist September, decree
was signed, stating that the Court
having found as fact that there has
been no custer by the complainant
of the respondent in re-pect to any
portion OF the land held IN common
by the parties nor any exclusion by
the complainant OF the respondent
from said land; and being Of opinion
that the complainant Is not subject
TO be charged in an accounting for
Its use Of any portion OF the land
held in common by the parties"
ordered, adjudged and decreed that
the decree of the Chief Justice be
confirmed and that the WsIkspu
Sugar Company respondent Is not
entitled TO recover or to be allowed
any rent or dsmsges for use and &C
cupstion by the ssid complainant OF
spv portion of the land named in
their complaint owned by the parties
in commoE. and is not entitled to an
account of the profits arising from
such occupation"
On the 3rd October, 1898, the re-
spondent moved the Chief Justice as
follows:
And now comes the ss;d q. W.
Mscfarlane on behalf of the defend
ant and shows unto this Court that
on the sixteenth day OF June, a. ID.
1891, the said Wsikapu Sugar Com
psny brought against the said Hawai-
ian Commercial and Sugar Company
its action of ejectment, praying to be
let into possession of its undivided
half of the premises. and damages
for exclusion therefrom, to which
action the said Hawaiian Commercial
aud Sugar Company, besides a plea
in abatement and disclaimer filed
an answer Of general denial, which
said action was terminated by the
Court sustaining said plea
"Tnst on the fifth day Of Septem-
Der, 4. D. 1891, the said Hawaiian
Commercial and Sugar Company
brought q bill of complaint against
the said Wsikspu Sugar Company,
praying for a partition of said prem
ises, aud for an accounting, TO which
said bill the said g. ". Mscfsrlsne,
defending the same in behalf OF said
Sugar Company, filed an
answer claiming that the said Wal.
kspu Sugar Company had been
illegally excluded by the said Hawai-
ian Commercial and Sugar Company
from use of the common property |
and praying for an accounting there
for 10 be ordered. on which said peti- /
ton and answer the Court found |
that such exclusion or custer had |
not been shown, and denied 10 the
ssid Wsikapu Sugar Company the
accounting in its behalf prayed for
IS aforesaid.
That from the date Of the fling OF
said action Of ej-ciment and OF said
answer of general denial until the
present time, the ssid Hawaiian
and Sugar Company
has continually excluded and ousted
the said Wsikspu Sugar Company
from 8 large aud very valuable por-
ton Of the common property during
that time exclusively held, used and
cultivated By it, the said Hswsiian
and Sugar Company,
and now refuses, the request OF the
said u. ". Macfsrlane in behalf Of
the said Waikspu Sugar Company
for any accounting therefor or any
payment for the use thereof.
Wherefore the said q. W insofar
LaDe. in behalf Of the ssid Waikspu
Sugar Company, moves this Court
Tor an order directing the said Haw-
allan Commercial and Sugar Com
oany to account to the said Waikspu
Sugar Company for the rents aud
profits OF those portions of the com
non premises under its exclusive use
md occupation since the said SIX
zenith day Of June. a d. 1891"
On the 14th November, the Chief
Justice decided that no ouster or ez
,lusion OF the respondent bT the
had been shown as T.
such portion of the premises owned
q common by the parties as was 10
he occupation OF the complainant
IN the 10Th June 1891, (the date OF
suit il ejectment) and q
decree was sigred On the 22nd Nov
smber TO the same feet. and also