Dissenting opinion of
Mr. Justice Harris :I am reluctantly compelled to dissent from the foregoing opinion.
Regarding the evidence which, in the opinion of the majority'of the Court, as indicated above, should have been allowed to go to the jury, it seems to me sufficient to say that the law is express and particular upon that subject, vide 836th Section of the Civil Code : “ If any party shall think himself aggrieved by any such opinion, direction, or order, and the Justice shall not think fit to reserve the case upon his motion, the party may allege exceptions to such opinion, direction, or order, and the same being reduced to writing in a summary mode, and presented to the Justice before the final adjourn*777ment of the Court for the term, and being found conformable to truth, shall be allowed and signed by the Justice; and if said Justice shall refuse to allow and sign said exceptions, the truth of the allegations therein contained, may, nevertheless, be established before the full Court, and the exceptions allowed by them.”
It is not sufficient therefore that some passing exceptions should have been noted to the ruling of the Judge at the trial, which is only a compliance with the seventh rule of the Court. But they likewise, according to the statute above quoted, must be presented to the Judge before the final adjournment of the Court for the term and be signed by him.
No such exceptions were presented to me or signed by me.
On the 26th of January 1876 I signed a paper purporting to be a bill of exceptions, being entirely misled. This paper I afterward recalled, when I had read it over carefully, and found it inconsistent with the-law, having first called both counsel, and pointed out to them the manner in which I had been misled and the impropriety of the paper. How that paper appears again on the record, I am at a loss to understand; it should be taken off the file. I then gave the counsel for defendants the opportunity to file exceptions, if he could, as of the last day of the term, and he did file the following:
“ In the Supreme Court of the Hawaiian Islands, of the January term, 1876.
“ Kaaihue et al. vs. Elizabeth Crabbe et al. Action of ejectment.
“Be it remembered that during the trial of the above cause, the defendants’ attorney offered in evidence a copy of the judgment of the Police Court, Honolulu, and the writ of possession therein dated — day of- 1873, in the case of John Meek vs. Oopa, in a possessory action in said Police Court, in order to show an act of possession and a tenancy of Oopa under John Meek, when the Court replied that it was *778no evidence of a tenancy, but only evidence of the Police Magistrate’s opinion to that effect, but it was evidence that the alleged prescription was broken that day and could be admitted for that purpose, to which ruling of the Court, the defendant’s attorney excepted, by observing that he would save the point on said ruling.
“ That after evidence had been closed, the defendants’ attorney, among others, asked the following instruction : That the fact of a legal ouster of Oopa by a writ of possession based on a judgment of the Police Court in favor of John Meek vs. Oopa, tends to show a tenancy of Oopa under John Meek.’ Which instruction was refused by the Court, to which opinion of the Court in refusing said instruction, the defendants’ attorney excepted, by using the words that he saved the point on all instructions asked by him and refused by the Court.
“(Signed) W. C. Jones,
Attorney for defendants.”
This I refused to sign on the ground that they had alleged nothing in accordance with the seventh rule of Court, and in fact they had made no such exception; at the' time I then reduced to writing my remembrance of the ease from my notes and memory and gave defendants’ counsel the opportunity to show by affidavits that my memory or statement was inaccurate. This he declined to do, and therefore by the very force of the statute there were no exceptions before the Appellate Court, and I cannot but regard it as exceedingly dangerous for the Court to take up points which are not raised by counsel in the regular way, and express an opinion upon them. It is likewise a mistake to suppose that it was lost sight of all the trial, whether or not the possession of Oopa would inure only to the benefit of Kaaihue or of Kaaihue and all the other plaintiffs. But on the contrary, in point of fact, it was suggested by the counsel for the defendants and abandoned by him because it was conceived that if Oopa had held *779at all lie had held for himself and his co-heirs and that if the prescription should be found to have run in favor of Oopa, it could make no difference to defendant whether he held the land for himself alone or for himself and others. His petition filed the 17th of March, 1878, sets forth and declares that he claimed it for himself and his co-heirs. It will be observed then that the points alleged in the bill of exceptions which were refused on the 10th of April, 1876, regarded only the effect of the possessory suit in the Police Court and judgment thereon, and that the majority of the Court concurred with me in the opinion then expressed, that said suit had no effect other than to interrupt the Statute of Limitations.
Therefore, as it seems to me, the only point which remained for the Couit to decide on the motion for new trial is whether the verdict of the jui’y is contrary to the law and evidence.
The grounds upon which the plaintiffs claimed this property were that they were the direct heirs of Kalamau to whom the Land Commission made the original award, which award is dated April 1st, 1850, that Oopa had been put in possession of it by Kalamau herself previous to her departure for Hawaii, whither she had gone being sick, as Mr. Howsett says, about 1850, and that he continued to hold it from that time for Kalamau during her life time, and after her death for Kalamu’s heirs, of which he was one, up to the 14th of March, 1873, at which time he was ousted by a pi’oeess'from the Police and District Court of Honolulu. Plaintiff’ was claiming that Oopa did not “enter in subserviency to the title of the real owner” — calling Meek the real owner — but under Kalamau, and therefore he had no occasion to bring home his adverse right to Meek as the owner. But he was in possession under Kalamau’s title, and that hers was the only recorded title. His whole plea was that he never knew or recognized Meek as having any title, and if that was the fact, he could not give Meek any notice of the nature of his *780holding any inore than any person claiming to hold in fee simple, gives notice to any particular person of his so holding. His whole claim was that he never had entered in subserviency to Meek.
On the part of the defendants it was claimed that he had a deed from Kalamau dated 26th of February, 1850, in favor of Capt. Meek, and that Oopa had been placed in possession there by Capt. John Meek.
Evidence was introduced on both sides, on the side of the plaintiff to show that he was put in possession by Kalamau and that he had continued to hold possession as he alleged; on the part of the defendants it was sought to show that Capt. Meek put Oopa in possession and that he continued to occupy by the permission of Capt. Meek.
The, object of the plaintiff’ was to impugn the deed. This he endeavored to do by showing that it was written in the English language, which the grantee confessedly did not understand; that it was never acknowledged, although the law, as it stood at that time and for many years afterward, prohibited a deed so unacknowledged even from being considered by a Court of Justice, and that Kalamau, during her life time continued in possession for herself and after her death which occurred sometime in the year 1858. Oopa had continued in possession as her heir for himself and other heirs, for a period of twenty-three years subsequent to the execution of the deed. It was likewise adverted to that the witness Jasper did not .state in his attesting clause that it was translated to her or even signed in his presence, and in as much as the acknowledgment was necessary in order that it might be used in evidence in a Court of Justice, that all these facts were evidence to the jury that the woman would not acknowledge it in her life time, and that Meek must have had good reasons for not endeavoring to obtain possession under the deed, during this long period of time.
Thus evidence upon the occupation was adduced upon the *781one side and upon the other, and it was argued that if they believed the testimony which the defendants offered and that Oopa during that long period of time had held for Meek, his possession was Meek’s possession and would support the deed so as to make it quite irrefragable.
And the defendants even asked the Court to instruct “ that an unacknowledged and unrecorded deed was good against the grantor and his heirs and if they believe from the evidence that Kalamau executed the deed produced before the Court to' John Meek, and that he held possession under said deed, they will find a verdict for defendants.” This instruction was given ipsissimis verbis.
This was the issue that the defendants put to the jury plainly and distinctly of their own motion; the effect of the verdict was, therefore, either that the jury either did not believe that Kalamau had ever executed the deed, or that they did not believe that Meek ever held possession under that deed during those twenty years.
Now, the undoubted rule is, that the verdict will not be set aside where there has been evivence on both sides and no rule of law violated nor manifest injustice done, so in this case, there was evidence on both sides and the jury were the proper judges which scale preponderates. Graham and Waterman on New Trials, p. 880.
The defendants asked that the jury be instructed “that if they believed that Meek placed Oopa there, then Oopa’s possession was Meek’s possession, and still again, that if they believed that Kalamau conveyed the land in question to Meek, neither she nor those claiming under her could dispute the title thus conveyed.” It was charged in the words that the defendants asked. There had been a previous trial which was presided over by Mr. Justice Juddj in which the jury were divided seven to five; and in this, the jury was unanimous for the plaintiff, therefore they did not find that Meek, put Oopa in possession or else did not find that Kalamau conveyed the land.
A. S. Hartwell, for plaintiffs. W. C. Jones and E. Preston, for defendants. Honolulu, January 30th, 1877.The previous litigation had been prolonged and exhaustive.
No new trial has ever been granted in this Court, under such circumstances, and the words of Chief Justice Parker in the case of Baker vs. Brigg, 8 Pick. 126, appear to me most applicable. “It is moved to set aside this verdict, on the ground that it is against evidence, notwithstanding there was a great deal of evidence on both sides so contradictory that on a former trial the jury could not agree, and on this trial it was the subject of elaborate argument, and scrupulous comparison of testimony. If under these circumstances a verdict can be set aside as against evidence, no action can be tried which may not be brought in review before the Court upon the facts, and the trial by jury will be virtually superseded. Perhaps no cause which really has two sides to it, can be determined without a serious belief in his counsel, that the verdict was wrong and against the weight of the evidence. But disputes must be settled and finished, and our law and constitution having given the ultimate decision upon the facts to the jury, to set aside their verdict, unless in extraordinary cases where it is manifest that they have mistaken or abused their trust, will be to usurp a power which has been carefully and properly withheld from ns.”
For these reasons I think that a new trial should be refused.