
    SUPREME COURT—IN BANCO.
    JANUARY TERM—1883.
    
      Judd, O* J, Me Gully and Austin, J.J.
    
    D. Kahakalau vs. Lepoloa.
    ON EXCEPTIONS.
    Motion for new trial as against the evidence. Held not against evidence, and that motion for new trial for newly discovered evidence not having been first presented to the Justice who presided at 'the trial was irregular, but if allowed to be argued the evidence offered was cumulative and nothing showed, but that it might have been obtained with due diligence at the trial.
   Opinion of .the Court by

Judd, C. J.

This is an action of ejectment for the possession of a piece of land at Waipio, Island of Hawaii, being Apana 1, Royal Patent No. 1,816 B, to Puaanui. The plaintiff claimed by purchase from the heirs of Kawahineainiu, patentee’s brother. The defendant claimed by deed from Ioane Paele alleged to be husband and heir of Naihe, a daughter of Puaanui the patentee. After the evidence was in, the plaintiff’s counsel admitted that Naihe was a daughter of Puaanui, and that defendant was-entitled to one-half of the land by purchase from Ioane Paele her husband, and claimed that the plaintiff’s, grantors were entitled to the other ’half as her heirs at law through Kawahineainiu. The jury found a verdict for the plaintiff for one undivided half of the land.

On a careful review of the evidence we find it was amply sufficient to sustain this verdict.

The counsel for the defendant has filed a motion for a new trial on the ground of newly discovered evidence, but he did not present it in the first instance- for the consideration of'the-Justice who presided at the- trial.. This was irregular unless done by consent.

C. Brown for plaintiff.

W. L. HolokahiM for defendant.

Honolulu, January 29, 1883.

An examination of the affidavits -in-'support of the motion discloses that the testimony is not only cumulative, but there-is nothing in them showing that, by the - exercise of ordinary diligence the witnesses could not have been produced: at the trial.

The exceptions are overruled and new. trial.denied..  