The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1909-12-16

land must be made within ten years
after he was ousted when his right ac-
crUed to bring an action to recover it's
posessioT
II it be said that the jury would have
takun the popular meaning of ENTRY
upon land" and that the legal mean
ing ought to lave been defined by the
court the cnswer is that failure TO do
this when not requested by the defen-
dart. is lOl error.
In the expression IN the instruction
within the period Of ten years from
the date the title or right to such land
was first vested" the word "or" may
be regarded not as an alternative but
as equivalent to meaning" A right
to land does not necessarily imply ow-
nership. 1t lis generally treated as the
right to property not in possession, as
distinguished from jus in re, which i'm
plies the absolute dominion" Bou-
vier's Law Dict. 73. And this, in
deed, is the accurate expression for
every case of that speciec of jus in
personam which is styled jus ad rem.
In every ase of the kind, the party en-
titled mas jus In personam ad jus in
rem acquirendam. That is to say he
has right, awaiting against a deter
inmate person, to the acquisition OF a
right availing against the world at
large. And, by consequence, his right
is right to an act of conveyance or
| Mt Of ho
obliged" Austin, Jur. AZ.
No other meaning than that which
! is above outlined can properly be given
tc the instruction ir accordance with
the statute upon which it is based and
it does not appear that-any other was
placed upon it at the trial If the
plaintiffs attorney had thought that
the jury could suppose it meant that
the defendant could not lawfully have
gone upon its own land while in pos
session of another, unless within ten
years after it acquired it, he would
not have failed to urge this view upon
them, in which case, if it can be sup
posed, he would promptly have been
! checked by the court. On the other
hand, if the defendants attorney had
supposed this to be a possible meaning
Of the instruction he would wisely have
rested the case upon an exception to
F, it, 1t is difficult to believe that any
jury would draw this meaning from
the instruction or that the court in
tended that they should find that one
could not rightfully go on his own
land, while held by another, ten years
after he got it. 1t is to be regretted
that juries are instructed on the law
so deliberately that even the appellate
court may find it difficult to under
stand the instructions. But to set
aside a verdict because the instruction
is susceptible of meaning not in
I.tended by the trial court and not adopt
ed at the trial by counsel on either side
would not tend to promote the ad-
ministration of justice.
Few verdicts could stand If the law
essays often read to the jury as ms
tructions were required to be so word
e. that the jury would understand
their legal meaning.
Upon consideration of the argument
made upon the partial rehearing which
was granted we see no reason to mo-
dity our former opinion, argument up
ON the petition for rehearng the rest
Of the case being denied under the rIle
S. NJ. Mallou for the petitioner.
R. P. Quarles contra
Following is Justice Perry's dis
senting opinion on the matter of the
instruction to the jury:
Even in the light of the common law
discussion contained in the above opin-
ion l am unable to construe the ms
tructlon as it is there construed.
Unless words and phrases capable of
both technical and an ordinary signi-
fication are specially defined by Judge
who is instructing jury as to the law
of the case, the language used by the
judge will be given by the jury it's
ordinary every day meaning, the only
meaning which it is familiar with.
All of the jurors who sat in this case
were, it may be safely said wholly
ignorant of the history of writs of
right and writs of entry and of any
technical meaning at the common law
OF the word ENTRY" and of the words
title to land" and right to lanG."
Listening to the statement of the law
contained in the instruction, in all
probability for the first time in their
lives, they would, l believe, naturally
understand II than oc updarctoud a.
now, to be a direction that the defend
ants going upon the land was wrong
full if it took place within ten years
from the time when the defendant or
its predecessors acquired title to the
land. In the instruction itself the
judge showed in the use of the words
'as shown by the evidence" that the
entry he was talking about was the
act of going upon the land which the