
    C. D. PRINGLE v. HILO MERCANTILE CO., Ltd.
    Error to the Circuit Court, Fourth Circuit.
    Submitted December 3, 1901.
    Decided December 18, 1901.
    Frear, O.J., and Perry, L
    Unanimity of verdicts is essential under the provisions of the Organic Act, hut it may be waived, and it is waived by a request for ian instruction, which is given, that a verdict may be rendered by nine jurors.
   OPINION OF THE COURT BY

FREAR, C.J.

The only assignment of error that need be noticed is that the verdict of the jury was rendered by nine only of the twelve jurors, the other three dissenting. The action was trespass and was tried at the last January Term of the Circuit Court. ,

"Whatever force the former statutes of Hawaii, which permitted verdicts to be rendered by nine of twelve jurors, may have had during the period intervening between the annexation of these islands to the Hnited States and the establishment of the territorial government (see Haw. Star Newspaper Co. v. Saylor, 12 Haw. 64; Ex parte Ah Oi, ante, 534), it would seem to be clear that since the latter event, unanimity o*f verdicts has been essential. See Org. Act, Sections 5, 6, 55; American Publishing Co. v. Fisher, 166 D. S. 464; Springville v. Thomas, Id. 707; Thompson v. Utah, 170 Id. 343; Capital Traction Co. v. Hof, 174 Id. 1.

C. C. Bitting for plaintiff.

F. W. Hankey for defendant.

But since in a civil case a trial by jury may be waived altogether, one element, namely, that of unanimity, may likewise be waived. See Evans v. Gee, 11 Pet. 80; Cowles v. Buckman, 6 Ia. 161.

In this case the plaintiff in error must be held to have waived the requirement of unanimity, for the instruction of the court to the jury that a verdict might be rendered by nine jurors, was given at his express written request.

The writ is dismissed and the case remitted to the Circuit Court.  