The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-11-19
OPINION OF THE COURT BY JUDD, c. ].

OPINION OF THE COURT BY JUDD, c. J.
For a statement of the plaintiffs
title see Dowsett V. Maukeala ct al,
Haw. 233. On the last trial of this
case the Circuit Judge presiding
charged the jury that the evidence
showed that the entry of the defend
ants or their ancestors was a 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 plaintiff, and
the jury returned 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 stenOgrapheTs notes
when prepared. See our decision on
such a bill of exceptions in Kappa
kela V. Iaea, filed July 26. 1895, and in
De Fraga V. 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
minutes do not agree in every respect
with the notes of the stenOgrapher.
We account for this from the omission
of the stenOgTapher to note, in the dis
cussiOns between the Court and the
counsel for defendants, Mr.. Rosa, all
that transpired. The best conclusion
we can come to is that the objec-
ton to the courts allowing the
jury To be drawn as it was,
that is, all the six Hawaiians
first and then six foreigners, was not
formally made until after they had
been sworn on their COir dire and
accepted. Without deciding whether
the statute which prescribes that the
mixed jury must be drawn alternately
Compiled Laws, p. $3.50 is mandatory
or directory, we hold that the objec-
ton was waived by accepting the jury.
Counsel, if he 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 aud 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 a disagreement; at that time the /.
plaintiff asked for instructions which |
practically amounted to 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 to give the instructions .
asked for and sent the case to the jury. /
After a more careful review of the .
evidence in the former cases and /
strict attention to the evidence as
given in this case, | am inclined 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 py direct chain of paper title
tina, he is the owner of this portion of .
the ahupuaa of Halawa; those dOcu-
=
their contents and would vest the
title in the plaintiff subject to any
adverse possession which the defend
ants might have shown you.
Adverse possession is of two or three
qualities; first, where a man goes into
possession under a paper title with a
claim of title; second, by oral agree
ment; thirf, as a mere usurper.
Where the occupation has been with
the permission of the owner of the
land, in order that adverse possession
may begin to- run il is necessary that
some direct notice tie given to the
owner that the Occupier Is holding
hostile to himself.
The statute of limitations which Is
the basis of adverse claims, Is in the
nature of a penalty ami Il never en-
'OTced unless il - shown that the
owners of the land have slept upon
heir rights for the period of twenty
years.
I feel compelled to instruct you as a
matter of law, that the evidence has
shown that the entry of these persons
)ne; that they held subject to the
thief or konohiki, and that there is
10 evidence 10 establish adverse pos
essiOn in this case, the defendants
having failed to occupy the land notO-
'iOusly and completely, - cOntinu-
'usly for the requisite period of twenty
years adversely to the claim of the
plaintiff"
The defendants claim that the court