
    KEPOLA vs. AHOLI.
    Motion for New Trial.
    Before Judd, J.
    October Term, 1881.
    Alleged newly-discovered evidence being merely cumulative, new trial refused.
   Decision of

Judd, J.

This is an action of ejectment tried at the July Term of this Court, the jury rendering a verdict for the defendant.

Castle & Hatch, for plaintiff.

J. L. Kaulukou, for defendant.

Honolulu, October 29, 1881.

The plaintiff claimed that she was the niece of the original patentee of the land, Keliikuhoe, Pakinikini, plaintiff’s mother, being Keliikuhoe’s sister.

In order to recover she was required to show this relationship to the satisfaction of the jury, and she had her day in Court to do this.

The motion is now made for a new trial on the ground of newly-discovered evidence, and the affidavit of counsel discloses that after trial some persons, who had heard of the circumstances of the case, declared that they knew the relationship of the plaintiff and could give testimony substantiating it.

It seems to me that when the plaintiff comes to the Court with her complaint, she must be prepared to prove it, and the failure to make diligent search in the locality where the paten-tee’s family lived for sufficient testimony to establish the case, is one that cannot easily be remedied.

The evidence offered is cumulative. I understand the law to be that no new trial will be ordered if the newly-discovered evidence is merely cumulative, and this rule will be relaxed only with great caution.

The new evidence must differ in kind and relate to distinct and independent facts. That offered in this case does not take it out of the general rule of law.

New trial refused.  