The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-01-30
OPINION OF THE COURT BY JUDD, C,

OPINION OF THE COURT BY JUDD, CD.
The plaintiff brought an action in
the District Court of Honolulu to re-
cover possession of a horse and
claimed and obtained its delivery to
him upon an affidavit. The defend
ant j. Alapai disclaimed all interest In
or possession of or control over the
horse. The defendant, Mary Alapai,
moved that "the case be stricken
from the calendar and dismissed for
that the conditions precedent TO the
issue OF writ of keplevin under the
provisions of the statute have not
been complied with" The motion
was granted and the plaintiff appeal
ed to this Court on the point OF law
involved. Objection is made by de
PENDANTS attorney that the appeal is
not perfected in that the certificate
of appeal does not distinctly set out
the point OF law appealed from. We
think that it does. The motion to
dismiss is In writing and it sufficient
" appears therein what the law
point appealed to this Court is.
Counsel for defendant has indicat
ed the particular condition precedent
which he says has not been complied
with-the Noncompliance OF plain
tifss affidavit with subdivision 3 OF
Sec 2 of Chap. 80 of the Laws Of
1884 respecting actions to recover
personal property. This reads In the
English version-The affidavit must
show that the property "has not been
taken for q tax. assessment or tlne
pursuant to statute" &c. The Ha-
waiian version is "Aole j laWeia IA
waiwai nei no kekahi ale q hoopsi
paha like me ke kanawai," &c.
Counsel for defendants contends
that the phrase In the English YER
sion that the property has not been
taken for "a tax, assessment or fine
pursuant to statute" is not COM
piled with by the allegation that the
property was not taken mo kekah
ale q hoopai paha like me ke
kanawai." He claims that the word
'Aie" which literally means "debt,"
and the word "hoopai" which liter
ally means q "fne," do not express
the phrase a ~ta1, assessment or
fine"
It Is evident that the translator Of
the statute took the general word
Haie" as expressing the idea OF the
two English words tax or assess
ment. We think it well might mean
them. "Aie" means In its context,
an obligation, an owing or an in
debtedness created by law. Ii a
persons property Is taken for tax
or assessment In pursuance or law 1t
can only be SO because ne has incur
red some obligation therefor. At
any rate the Legislature considered
the two expressions In the several
versions Of the statute to be equlva-
lent and we do not find that the
difference between them Is 80 radical
and irreconcilable as to compel Us to
hold that the English version should
control. We think the affidavit was
sufficient.
But it was error to dismiss the
cause even IL the affidavit did not
comply with the statute. Reference
to the Statute OF Replevin makes 1t
clear that the proceedings by which
plaintiff may obtain Immediate pos
session Of personal property for
which he brings action to recover are
entirely independent Of such action.
He may not desire the immediate
fie any a6idsTit. In sneh case the
action would proceed and the title to
the property be tried. The legal
effect Of defective AFFIDAVIT In re-
plevin would be merely TO annul the
delivery taken in pursuance OF it.
The legality Of the seizure is the
only question involved and not the
right in the property. We 30 held
in All Leong '. Kee You, 8 Haw. Alb.
The appeal is sustained and the
cause remsnded 10 the District Court
Of Honolulu for further proceedings.
w. &. Achi for plaintiff; V. V.
Ashford for defendant.
Honolulu, January 2, 1895.