The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-01-18
These exceptions are overruled.

These exceptions overrued.
Sirh alleged that the motion for new trial on the
grounds of the alleged misconduct of of the jurors should
have granted We inclined the ruling of
the Judge this point under the rule announced by the
Supreme Court of the Republic of Hawaii wherein Mr. Justice
Far speaking for the court said "a question great
potance determining whether trial should be granted
is due diligence exercised ascertain the dsaua
fcaon before the jury If due diligence was not
used party would be in position that he
would be in had he used due diligence and ascraned the dis
qualification and made objection before the jury was sworn
in which he would generally be entitled to new trial"
Rep o. Coelho, II Haw 2145.
The affidavit and application for shows that the
defendant and its counsel knew of the alleged
the Friday morning. the second day before the end Of
the trial. that they did call the court the
rnor but continued with the the defendant remained
and continued with the trial knowledge
alleged misconduct of the juror and made attempt
call the attention of the until after the verdict
of the jury returned against think diligence
shown and that by such silence and nacton the right
to trial this ground any existed was waived and
lost.
The exceptions the charges of the jury
67 and 6S have been argued the brief ar
abandoned 1t appears from the record that the defend
offered affirmative evidence of fraud but relied entirely
the examination of the plaintiff and his wife
this branch of the defense The court seems gave to defend
proper latitude and submitted the question the
jury under proper instructions and the verdcts against
defendant
We find sufficient for reversal The exceptions are
therefore overruled and Judgment affirmed.
A. :. Humphreys and j. r. De Bolt for plaintiff
htaney, Ballou Dc McClanahan for defendant
IN THE SUPREME COURT OF THE TERRITORY OF
HAWAII
SEPTEMBER TERM 1900
JOSEPH soHARscH o. THE KILAUEA SUGAR COM
PANY.
Exceptions FROM C1Rou1T CouRr FIFTH C1Rourr
SUBMITTED SEPTEMBER 90 1900 DECIDED JANUARY TO- 1901
FREAR, CJ. GALBRA1rH PERRY, JJ.
In action for damages for infringement of right the
rendered verdict plaintiff
in support
lot that sum- in other words that the verdict was excessive
The owner OF dominant estate substantially
ton of ditch acquired
prescription
implied, of the
OPINION COURT PERRY
In this action, the plaintiff claims of the defendant the
of $3.50 damages alleged wrongful diversion by
defendant of the of which the plaintiff
claims be entitled and the further $4,000 as dam
ages for the alleged wrongful discharge of plaintiff by defend
ant from its employ The tried before jury and
verdict rendered for the plaintiff for the of $31O6
motion for new trial overuled pro forna by the Court
lhe bill sets forth number of exceptions rulings made
The trial. to the charge of the given, the refusal
give certain instructions requested by the defendant the Civ
ing of certain instructions requested by the plaintiff the
dict the ground that it and contrary and
to the evidence and the weight of evidence and
ruling of the motion for trial Only questions how
ever argued and relied upon by the defendant in this
court to w.t. whether there any evidence support
verdict against the defendant for $780, and whether
n evidence support verdict against the defendant
for any sum.
Evidence adduced the trial tending to show that the
plaintiff is and has been 1884, owner in fee simple