The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1908-03-27
OF INTEREST
To ATTORNEYS

1
Judge De Bolt handed down a writ.
ten decision yesterday covering point!
of law in regard to costs that is Of
| wide interest among those of the lega
fraternity, although not of general in
terest. The opinion is on the presen
tation of a bill of costs by the plain
tiff's attorney in the case of Samue
Noar, administrator of the estate OF
Isaac Noar, deceased. versus C
Bosse. In that case judgment was
rendered by Judge De Bolt for sS5 10
afterwards cut down after the judg-
! ment had been filed and sustained by
| the Supreme Court by Judge De Boil
because of the discovery of a clerica
| error.
Judge Stanley appeared for the de-
! PENDANT and presented the motion to
have the judgment amended in ac-
cordance with the proper figures, which
was done. C. W. Ashford, for the
plaintiff, presented the bill of costs,
based on the original judgment, how
ever, and on this presentation the fol-
| lowing decision is made:
Defendant moved that the judy
ment entered herein against him for
the sum of sS5.75 be reduced to the
| sum of $5S.12 SO as to conform with
! the opinion of the court. The motion
was granted against plaintiffs conten-
ton.
Plaintiff now presents for allowance
bill of costs as follows:
Costs of court as charged upon
the clerks docket. $50
Attorneys Fees
Attendance upon argument of
motion for amendment of judg-
IheHt .................-.. SUI
For drawing this bill of costs,
copy and service ........... LOO
For drawing, copy and service
of notice of taxation of this bill
OF costs ..--.................. LOO
For attendance upon taxation of
this bill of costs. LOO
Iotal ................. 2.S0
"All the items thus contained in the
bill of costs under the title Attorneys
Fees amounting to Sc, are disallowed
on the ground that defendant, and not
plaintiff, was the prevailing party.
This ruling is based upon the fol-
lowing authorities:
I'll eye. 54-55-56-57-5S-5 5 Ency. Pl.
& Pr. 221, ct sea-; Grafton Bank "
Woodward, n. H. 301; The Excelsior
Draining Co. V. Brown, AZ Ind. 10;
Williams v. Wright, l Wend 27S Ladd
V. North, 2 Mass. 513; Favor " Sar-
gent, 6 Pick. s.; Darlington ". Smith,
s Pick. 419; Gregory v Reeve, Johns
Oh. 232; O'Flyn V. Eagle, Mich. BOG;
Jacobs V. Hooker, l Bart. II; Rose v.
Smith, Z Haw. 8.
1.-The item Costs of court as charged
upon the clerks docket. $780, is al
lowed.
"(Sgd.) ]. T. DE BOLT,
First Judge, Circuit Court, First
Circuit
GRAND MAHELE INVIOLABLE.
Land at Waikiki, reserved for his
private use by King Kamehameha III.
in June 1S4S, figured in decision rem
dered by the Supreme Court yesterday,
the case being that of the Territory
versus Moses Puahi ct al. The conten-
ton of the plaintiffs was that the de-
PENDANT possessed no title to the prop
erty, the defendants setting up the
claim that as early as 1853 Paakai was
living on the land in open, notorious
and exclusive possession, claiming title
against all the world and that Moses
Puahi, the defendant, was born on the
land in 1868. The court refused to ad-
nit this evidence of adverse possession
against the government and gave judg-
ment for the Territory.
An appeal was made, the courts be-
ing asked to declare the joint resolu-
ton of annexation and Sections 81 and
80 of the Organic Act unconstitutional,
although the defendants brief stated
that "the Circuit Court of this Terri
tory are not unjustly reluctant to de-
clare such unconstitutionality."
The decision of the Supreme Court
holds that the constitutionality of the
Acts are not in question, as decided
in Territory versus Kapiolani Estate,
IS. Haw. In overruling the contentious
of the defendant the decision says:
1.-THE question of adverse possession
running against crown lands is one
upon which the language of opinions
in the past cannot be wholly reconciled.
The crown lands were those reserved
by Kamehameha III. in the great ma
hele of 1S4S, and declared by the act
of June Z, 1S4S, TO be the private lands
of His Majesty Kamehameha Ill, to |
have and to hold to himself, his heirs, |
and successors, forever; and said lands
shall be regulated and disposed of ac-
cording to his royal will and pleasure |
subject only to the rights of tenants
From that date until the act of jan
1ary 8, 1865, the crown lands we're
aIienable by the king. The question
whether title by prescription could be
acquired within this period has never
arisen and could not arise, as upon
40 theory could a claim by prescrip-
ion go back of the mahele nor ripen
Turing the sixteen and a half years
between the acts men
toned, particularly in the absence OF
/ statute of limitations"
DIVISION OF BUSINESS PROP
ERTY.
A report was filed yesterday by j.
F. Brown. commissioner in the parti-
ion suit brought by Annie A. Barton
md Helen A. Dunning against the
Hawaiian Trust & Investment Co.,
iealing with block of Hotel street
business houses. The work of the
x,-ac 70 divide eolIita hIy