The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-26

nature and indefinite, IS not a prope
assignment of error and is not cOnsid
cred by the Colrt.
OPINION OF THE COURT BY BECKER
TON. J.
This was an action for trespast
and came on for hearing at the Octo
Der Term, 1893, of the Third Circuit
Court, holden at Kohala, Hawaii
The Jury returned q verdict for the
defendant In error, with $50 damages
to which said verdict exceptions were
taken and notice was given of a
motion for a new trial, which said
motion was never presented. On
December Both, 1893, the Court taxed
and allowed the bill of costs of the
defendant in error, the presiding
Judge endorsing on the same ''No
brief having been filed by defendants
attorney. as promised, proceed to
tax plaintiffs costs as per bill sworn
to by plaintiff John Mcguire. The
amount allowed is $63.50 as per the
bill, Dec. Both, 1893.
S. l.. Austin.
Circuit Judge Ill Circuit"
The matter is now here on a writ
of error, allowed by this Court aud
addressed to the Clerk Of said Cir
cult Court.
The assignments of error are:
81. That said suit was fled with
out any deposit having been made
with the Clerk of said III Circuit, or
elsewhere or otherwise, on that be-
half; and the same had not been
deposited at the date Of the entry of
said cause for trial, at the said Octo-
Der 1893, Term: nor had the same
been paid up to the time of the said
trial on, to wit, the 9th day Of October,
1885,
"2. That the verdict Of the Jury
at said trial was contrary to law and
to the evidence adduced at the said
trial"
SO. That the trial Judge erred in
his order OF said 3Ush of December,
1893, In taxing certain costs against
your petitioner, the defendant there
In, contrary TO the Hawaiian Laws,
and to the decisions of the Court"
50. And other errors Of law, as
appear by the records In the said
cause"
As to the first assignment, we are
OF the opinion that this does not con.
stitute an error; this is a matter for
the clerk to see to; it is often the
case that attorneys have a running
Costs Account with the Clerk; the
Clerk issues the process and makes
himself responsible for the costs, it
being presumed that Le has it in
hand. a motion could be made at
any time that the costs be deposited I;
before trial, we hold that the fact
that the costs had not been deposited
is not fatal to the case.
AS to the second assignment, we
have examined tue evidence In the
case and the charge of the Court,
which is as follows: Gentlemen of
the jury. This is a case in which
the plaintiff claims $500 damages
from the defendant for trespsss bv
building stone wall on the land of
Ohlkl 10 the possession of plaintiff
defendant disputes the possession
o the land and claims the possession
himself.
IF you find that John Msgnire bad
the possession of the land when the
alleged trespass occurred then You
will proceed to find whether the de-
PENDANT committed the trespass as
charged And if you find there was
9 trespass, you will proceed to assess
the amount of the damages not to
exceed the amount sued for, $500.
IF you find that the possession of
the land at the time defendant built
the stone wall, was In the defendant,
then your verdict will be for defend
ant"
This left the question of posses.
sion entirely to the jury. They were
to find that fact from the evidence.
We find that there Is evidence upon
which the jury could find the verdict
they did.
In the case of Hang Fook v. The
Republic of Hawaii, decided by this
Court on the 18th of January, 1895,
We cited Sec. 5, of the Act ''to define
Writs Of Error" Law of 1892, %. 272,
which reads: There shall be no
reversal on error of any finding de-
pending on the credibility of witness
ses or the weight of evidence" In
the case at bar, as In that case, the
verdict OF the jury could only have
been based on ''the credibility of the
witnesses or the weight OF evidence"
See also Vierra V. Hackleld, s Haw.
As to the third assignment, we are
unable to find that the Judge erred
In taxing and allowing the defendant
10 errors bill of costs; it is plain
from the Judges enforcement thu
the other party had an opportunity
to contest this bill, but failed to do
So The verdict was on October 5tb
and the Court waited until December
3oth before taking action on this