
    SUPREME COURT—IN BANCO.
    JANUARY TERM—1883.
    
      Judtl, C. J-, Me Gully and Austin. J.J.
    
    Elikapeka vs. The Ookala Sugar Company.
    on EXCEPTIONS.
    The TESTIMONY" of a witness that he saw a royal patent in the- possession of the patentee is stronger evidence that the patentee was alive when the patent was issued, than the testimony of a witness that the patentee was dead prior to date of patent.
   Opinion of the Court by

Austin, J.

This is a motion for a new trial by defendant in. ejectment on exceptions taken at the trial to rulings of the Justice presiding at the October term, 1882.

First, the defendant claims that by the proofs in the case, it appears that the patentee in the- royal patent under whom the plaintiff claims was dead when the patent was executed, and delivered in his name. This was a land grant, and not a royal patent, confirming an award of the Land Commission.

By the dates proved, when the plaintiff closed his case, this would seem to be true.

A motion for non-suit on that ground was made, which was denied, and the defendant excepted.

Had the case closed here, it may be that the defendant should prevail.

But tbe defendant offered proofs, and tbe counsel went to tbe jury on tbe facts, wbo found for tbe plaintiff'.

On tbe argument tbe defendant’s counsel waived bis right on tbe motion for non-suit — and properly so, as we held recently in Liena vs. Mary Pahau et al., April term, 1882, and makes bis main argument here on tbe ground that tbe verdict •is against tbe evidence.

On examining tbe defendant’s evidence, which is available to tbe plaintiff, we find that Kahue swore that he saw tbe royal patent in tbe lifetime of tbe patentee claimed to be dead ; that witness saw it in patentee’s bands. And Kuapuu swears that be knew the getting of tbe royal patent; that both tbe patentees got it, both paid, and got tbe land together ; and tbe witness saw tbe paper in their hands.

This seems strong proof. True, tbe evidence was. direct that tbe patentee under whom tbe plaintiff' claimed died at a date previous to tbe date of the royal patent. But dates rest very lightly in most memories, and may be mistaken. An incident like seeing the royal patent in tbe bands of tbe patentee would be much more likely to be remembered. The facts were submitted to tbe jury, and they found that tbe patentee was alive when the patent was made. W e think that there is evidence amply sufficient to sustain the verdict. Even if the plaintiff' bad not recovered at law, we think she would have had a remedy in equity upon tbe other facts proved by her as remote heir of tbe patentee, and therefore entitled to the patent if it was made in tbe name of the patentee after bis death, and if it was error so to do..

Tbe defendant’s counsel moved for tbe direction of a verdict for tbe defendant, because tbe plaintiffs claimed as heirs of tbe patentee, and proved that they were heirs of his heirs.

We think this was not such a defect in pleading, if it were a defect, as to entitle tbe defendant to relief here. We think the plaintiffs may be termed by privity the remote heirs of tbe patentee. 0

W. R. Castle for plaintiffs.

E. Preston and R. E. Bickerton for defendant.

Honolulu, February 19, 1883.

The judgment must be affirmed, with costs.  