Opinion of the Court by
Judd, J.This was an action of assumpsit, the plaintiff claiming one hundred and fifty dollars from the defendants for three years use of the water from a certain ditch in Kohala, Hawaii.
The Justice who presided at the trial reserved- for the con-sideration of this Court the question whether a non-suit or judgment for the defendants should not have been ordered on their motion, on the ground’ that the complaint alleged a joint use of the water by the defendants, whereas the evidence showed a separate use.
The jury returned a verdict that the defendants had no right to the water. The complaint asks for damages, hut the jury did not find any, nor did they find for the defendants, and *82there-is, therefore; no-verdict upon which judgment could be-entered.
Hon. A. S. Hartwell for plaintiff'. E. Preston for defendants. Honolulu, February 2, 1878.The- Court cannot now consider the- question reserved, for its determination, whether favorable to the plaintiff or to the-defendants would be without effect upon a verdict which is in itself bad.
We are-not called upon to-perform useless labor.
There being a mis-trial, the- plaintiff has leave to apply for a- new trial upon, the complaint as it stands, or he may amend it, as he-sees fit, each party to-pay its own costs, and the eosts-of the jury to-be divided.