The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1895-11-19

come to the Appellate Court in the bill
OF exceptions, 1t cannot be considered.
OPINION OF THE COURT BY JUDD, C 7
For statement Of the plaintiff.
title see Dowsett V. Maukeala ct al, {
Haw. 233. On the last trial of thi.
case the Circuit Judge presiding
charged the jury that the evidence
showed that the entry of the defend
ants or their ancestors was q permits
sive one, they holding subject TO the
chief or konohiki and that there was
no evidence to establish their posses
sion as adverse to the plain iff, and
the jury returned a verdict for plaintiff
without leaving their seats. The case
comes to Us on a bill of exceptions.
The first part of the bill is objection
able because not exhibiting in detail
the various exceptions taken during
the trial, but referring to them as to
appear in the stenographer's notes
when pre- AIRED. See our decision on
such bill of exceptions in Kappa
kels V. Iaea, filed July 26 1895, and in
De Fraga Portuguese Mutual Ben.
Soc, filed October Is, 1895.
AS this bill was allowed before a
decision of this Court upon this ques
ton, We consider the only point raised
in this connection. The case called
for a mixed jury The defendants
counsel claims that the trial court
erred in not drawing the names of the
Hawaiian and foreign jurors alter
nately from the box. The clerks
r,aintafao a. In
with the notes of the stenographer.
We account for this from the omission
Of the stenographer to note, in the dis
cussions between the Court aud the
counsel for defendants, Mr.. Rosa, all
that TRANSFERRED. The best conclusion
we can come to is that the objec-
ton to the courts allowing the
jury to be drawn as ii was,
that is, all the six Hawaiians
first and then six foreigners, was not
formally made until after they had
been sworn on their Uoir dire and
accepted. Without deciding whether
the statute which prescribes that the
mixed jury must be drawn alternately
Compiled Laws, p. 359) is mandatory
or directory, We hold that the objec-
ton was waived by accepting the jury.
Counsel, if be insisted upon the Objec
ton, should have moved that the jury
be discharged and a new jury drawn.
We cannot find that the method pur-
sued by the court prejudiced the de-
PENDANTS in any way, and we override
the exception on this point.
The Judges charge is as follows:
Gentlemen of the jury, this is the
third trial of this case, the first trial
being before Judge Whiting, for which
a verdict for the defendants was rem
dered. A new trial was granted by
Judge Whiting and his order was
sustained by the supreme Court, and
the decision of the Supreme Court in
that case has now become the law in
this case. The trial which TOOK place
before myself in November resulted
in disagreement; at that time the
plaintiff asked for instructions which
practically amounted 10 the statement
of the law of the case as rendered by
the Supreme Court, but for fear that
there had been evidence different from
the trial upon which the decision of
the Supreme Court had been based, |
declined 10 give the Instructions
asked for ami sent the case to the jury.
After more careful review of the
evidence. in the former cases and
strict attention TO the evidence as
given in this case, | am incliued to
the opinion that my giving the case
to the jury in the former trial was
error under the instructions which |
did give.
The plaintiff in this case has shown
you 10y direct chain of paper title
that he is the owner of this portion of
the ahupusa of Halawa; those docu-
ments are prinad fdcie evidence of
their contents aud would vest the
tide in the plaintiff subject to any
adverse possession which the defend
ants might have shown you.
Adverse possession is of twoor three
qualities; first, where man goes into
possession under a paper title with
claim of title; second, by oral agree
ment; thir', rs mere usurper.
Where the occupation has been with
the permission of the owner of the
land, in order that adverse possession
may begiu to run it is necessary that
some direct notice be given to the
owner that the occupier il holding
hostile to himself.
The statute of limitations which is
the basis of adverse claims, is in the
nature of a penalty and is never en-
forced unless it IS shown that the
owners of the land have slept upon |
their rights for the period of twenty
years.
| feel compelled to instruct you as a
matter of law, that the evidence has |
shown that the entry of these persons
or their ancestors was a permissive |
one; that they held subject TO the
chief or konobiki, and that there is
no evidence to establish adverse pos
session 10 this case, the defendants
having failed to occupy the land noto-
riously and completely, - continu-
ously for the requisite period of twenty
years adversely to the claim of the
plaintiff"
The defendants claim that the court