OPINION OF THE COURT BY
CIRCUIT JUDGE WHITING.
The plaintiff sues in ejectment to recover one-half of certain land at Ewa, Oahu, claiming as heir of Liliu the patentee, and produced evidence tending to show that she and Pilipo were at a certain period in his life time the sole equal heirs surviving of Kaapaahili, a brother of the patentee. Pilipo died about 18 months ago, but just before his death conveyed the whole of the premises to defendant Iaea. The charge of the Court confined the issue to the question of pedigree. A ver-[100]*100diet was rendered in • favor of plaintiff for one-half of tbe premises and defendant duly excepted thereto and moved for a new trial on tbe ground tbat tbe verdict was contrary to tbe law and tbe evidence, and tbe motion was overruled, and defendant excepted.
Tbe jury are tbe judges of tbe evidence, witnesses and facts and we can now only examine tbe case so far as to see wbetber there was evidence produced before tbe jury upon which they could base their verdict. "We find tbat there is ample evidence.
Testimony of IToaliliamanu. In answer to Mr. Kinney.
I live at Ewa, was born at Waiawa. I know tbe land in dispute. My borne is about two miles from this land. I was born in 1838. I know this girl. I knew her parents before she was born and knew her when she was born. Her father was Kamai and her mother Kamealani. They were married and lived at Waiau and she was born. I don’t know when she was born. Kamai and bis wife were living on this land in dispute. Kaapaahili was tbe father of Kamai and Keild-keuhane tbe mother. There were six children in tbe family of Kaapaahili. Kamai was tbe oldest. Tie was born before they came to EAva, be was brought doA?n from Molokai. Liliu and TIoaai my father came and then Kaapaahili and bis Avife came. This boy Kamai came doAAm with them from Molokai and became the.father of this girl. Liliu was tbe patentee of this land. Kaapaahili and his Avife and Liliu lived on the land and tbe children lived there with their parents. Liliu and Kaapaahili lived there together and this same woman in the same house on the land. My father said that Liliu and Kaapaahili were two brothers, the elder and younger one. I knew Kaapaahili. Liliu died at the time of the smallpox, I don’t recollect seeing him. After Liliu died Kaapaahili lived on the land Avith his children and wife. At that time Pilipo was small. He was the fourth child. The first child was Kamai, the next a daughter Kiowai, the next a daughter Lili, the next was Pilipo and after Pilipo a daughter named Maka~ monamona and then a son named Luahine. Kiowai and Lili' [101]*101died. They never bad any husbands or children. 'Maka-monamona had no children but she had a husband named Alohe. I think they were married because they lived together and in those times they were very strict about those matters and they must have been married. I assume they were married because they lived together. Maka-monamona was a hunchback. Luahine was not married. He went up to Maui and lived with a woman. He came back and died and he had no children. Kamai had one child, this Ana Monamona. After Kaapaahili’s death all these children lived on the land, Kamai and his brothers and sisters. Kamai died at "Waiawa and he was buried on this land in question. His wife Kamealani died on the land in question. Kamai died first. After her husband’s death she continued living on the land. All these people lived there equally, one was not living under the other. Cross Exami/nation. I think Kaapaahili died in 1866. Keikikeuhane died about 1860. Liliu died of smallpox in 1853. Kaapaahili told me that is what killed him. I never saw Liliu. Kaapaahili himself told me that they were two brothers that my father came with them from Molokai.
(This witness gave full testimony as to the family of Kaa-paahili always living on this land in unison.)
Testimony of Kapuakela. My father was Kamai, my mother Kamealani. My father’s parents were Kaapaahili and Keiki-keuhane. Kaapaahili came from Molokai with Liliu this eldest brother, the patentee of this land. My grandmother came from Molokai with Kaapaahili and Liliu. I don’t know of Makamonamona’s having any husband. She was a cripple. I was born and lived on the land in dispute. My parents lived there and my uncles and aunt. All of that family lived there together. I never heard that it had been given by Liliu to Pilipo to the exclusion of the other children. We all lived there equally. Never heard my right to live there disputed until after the sale made by Pilipo to Iaea. Pilipo is dead over a year and the deed was made a few days before his death. [102]*102Pilipo in Ms life time never to my knowledge asserted an absolute ownership to that property. Pilipo had a memoran-dmn of the time of my birth but since his death it cannot be found. I heard about all these people from my own father and from Pilipio himself. They told me when I was born but I have forgotten. I never saw my grandfather or grandmother. I was never told the year that they died.
Lavinia Kapu testifies: She lived at Ewa from 1860; know plaintiff Kapuakela and defendant Iaea; known plaintiff for several years, from when she was a child, a small child. Plaintiff resided when I first knew her on the property before the Court today. At that time I first knew Kapuakela, Kamai was in possession of the land. I only heard that Liliu was uncle of Kamai. I only heard, I don’t know the mother’s name. There wére two men that came from Molokai. I went to live at Ewa when I got acquainted with the children of Kaapaahili who was the father. I never knew the mother at all. Liliu was Kaapaahili’s son, I heard that. Kamai had three brothers and a sister. One was Kamai, Luahine, those were two boys; sister was Makamonamona. I heard of other children but I never knew them. Kamai married Kamealani, had one child Ka-puakela. Kamai is dead. Pilipo is dead. Luahine and Makamonamona are dead. They left no children except Ka-mai. They were all unmarried as far as I knew excepting Kamai. I have talked with the members of that family about the events as they took place. I heard that the reason these two men came from Molokai was to play a game of maika with my husband; two men Liliu and Kaapaahili. Also the wife of Kaapaahili. Did not know the wife. That is all I heard about their coming down here to challenge my husband to this maika. I have heard Pilipo talk about it. I always heard that Liliu and Kaapaahili were kaikuana and kaikaina; when I came to live down here both Liliu and Kaapaahili were dead and also the wife. "When I first knew the family the members were Kamai, Pilipo, Luahine and Makamonamona. I know the land in dispute; they were all together on the land, [103]*103but be was tlie only one tbat bad a bouse on tbe place. It was 1861 or 1862 tbat I first saw Kamai on tbe land using it. Kamai, Pilipo, kfakamonamona and Lnabine were brothers and sisters. I never beard tbat Lilin was not related to Kaapaa-bili, grandfather of these children; I always beard tbat they were related. I beard about this relationship of Lilin and Kaapaahili from others and also from members of this family; all these children tbat I have named.
Tbe defendant produced testimony in contradiction of plaintiff’s testimony, tbe larger part of which was tbe testimony of several witnesses for tbe defendant who did not know tbe pedigree of this family, nor were they acquainted with tbe members of Pilipo’s family when alive, but such testimony cannot prevail against tbat of witnesses who did know not only tbe pedigree but also tbe members of tbe family when alive.
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OPINION OF THE COURT BY
CIRCUIT JUDGE WHITING.
The plaintiff sues in ejectment to recover one-half of certain land at Ewa, Oahu, claiming as heir of Liliu the patentee, and produced evidence tending to show that she and Pilipo were at a certain period in his life time the sole equal heirs surviving of Kaapaahili, a brother of the patentee. Pilipo died about 18 months ago, but just before his death conveyed the whole of the premises to defendant Iaea. The charge of the Court confined the issue to the question of pedigree. A ver-[100]*100diet was rendered in • favor of plaintiff for one-half of tbe premises and defendant duly excepted thereto and moved for a new trial on tbe ground tbat tbe verdict was contrary to tbe law and tbe evidence, and tbe motion was overruled, and defendant excepted.
Tbe jury are tbe judges of tbe evidence, witnesses and facts and we can now only examine tbe case so far as to see wbetber there was evidence produced before tbe jury upon which they could base their verdict. "We find tbat there is ample evidence.
Testimony of IToaliliamanu. In answer to Mr. Kinney.
I live at Ewa, was born at Waiawa. I know tbe land in dispute. My borne is about two miles from this land. I was born in 1838. I know this girl. I knew her parents before she was born and knew her when she was born. Her father was Kamai and her mother Kamealani. They were married and lived at Waiau and she was born. I don’t know when she was born. Kamai and bis wife were living on this land in dispute. Kaapaahili was tbe father of Kamai and Keild-keuhane tbe mother. There were six children in tbe family of Kaapaahili. Kamai was tbe oldest. Tie was born before they came to EAva, be was brought doA?n from Molokai. Liliu and TIoaai my father came and then Kaapaahili and bis Avife came. This boy Kamai came doAAm with them from Molokai and became the.father of this girl. Liliu was tbe patentee of this land. Kaapaahili and his Avife and Liliu lived on the land and tbe children lived there with their parents. Liliu and Kaapaahili lived there together and this same woman in the same house on the land. My father said that Liliu and Kaapaahili were two brothers, the elder and younger one. I knew Kaapaahili. Liliu died at the time of the smallpox, I don’t recollect seeing him. After Liliu died Kaapaahili lived on the land Avith his children and wife. At that time Pilipo was small. He was the fourth child. The first child was Kamai, the next a daughter Kiowai, the next a daughter Lili, the next was Pilipo and after Pilipo a daughter named Maka~ monamona and then a son named Luahine. Kiowai and Lili' [101]*101died. They never bad any husbands or children. 'Maka-monamona had no children but she had a husband named Alohe. I think they were married because they lived together and in those times they were very strict about those matters and they must have been married. I assume they were married because they lived together. Maka-monamona was a hunchback. Luahine was not married. He went up to Maui and lived with a woman. He came back and died and he had no children. Kamai had one child, this Ana Monamona. After Kaapaahili’s death all these children lived on the land, Kamai and his brothers and sisters. Kamai died at "Waiawa and he was buried on this land in question. His wife Kamealani died on the land in question. Kamai died first. After her husband’s death she continued living on the land. All these people lived there equally, one was not living under the other. Cross Exami/nation. I think Kaapaahili died in 1866. Keikikeuhane died about 1860. Liliu died of smallpox in 1853. Kaapaahili told me that is what killed him. I never saw Liliu. Kaapaahili himself told me that they were two brothers that my father came with them from Molokai.
(This witness gave full testimony as to the family of Kaa-paahili always living on this land in unison.)
Testimony of Kapuakela. My father was Kamai, my mother Kamealani. My father’s parents were Kaapaahili and Keiki-keuhane. Kaapaahili came from Molokai with Liliu this eldest brother, the patentee of this land. My grandmother came from Molokai with Kaapaahili and Liliu. I don’t know of Makamonamona’s having any husband. She was a cripple. I was born and lived on the land in dispute. My parents lived there and my uncles and aunt. All of that family lived there together. I never heard that it had been given by Liliu to Pilipo to the exclusion of the other children. We all lived there equally. Never heard my right to live there disputed until after the sale made by Pilipo to Iaea. Pilipo is dead over a year and the deed was made a few days before his death. [102]*102Pilipo in Ms life time never to my knowledge asserted an absolute ownership to that property. Pilipo had a memoran-dmn of the time of my birth but since his death it cannot be found. I heard about all these people from my own father and from Pilipio himself. They told me when I was born but I have forgotten. I never saw my grandfather or grandmother. I was never told the year that they died.
Lavinia Kapu testifies: She lived at Ewa from 1860; know plaintiff Kapuakela and defendant Iaea; known plaintiff for several years, from when she was a child, a small child. Plaintiff resided when I first knew her on the property before the Court today. At that time I first knew Kapuakela, Kamai was in possession of the land. I only heard that Liliu was uncle of Kamai. I only heard, I don’t know the mother’s name. There wére two men that came from Molokai. I went to live at Ewa when I got acquainted with the children of Kaapaahili who was the father. I never knew the mother at all. Liliu was Kaapaahili’s son, I heard that. Kamai had three brothers and a sister. One was Kamai, Luahine, those were two boys; sister was Makamonamona. I heard of other children but I never knew them. Kamai married Kamealani, had one child Ka-puakela. Kamai is dead. Pilipo is dead. Luahine and Makamonamona are dead. They left no children except Ka-mai. They were all unmarried as far as I knew excepting Kamai. I have talked with the members of that family about the events as they took place. I heard that the reason these two men came from Molokai was to play a game of maika with my husband; two men Liliu and Kaapaahili. Also the wife of Kaapaahili. Did not know the wife. That is all I heard about their coming down here to challenge my husband to this maika. I have heard Pilipo talk about it. I always heard that Liliu and Kaapaahili were kaikuana and kaikaina; when I came to live down here both Liliu and Kaapaahili were dead and also the wife. "When I first knew the family the members were Kamai, Pilipo, Luahine and Makamonamona. I know the land in dispute; they were all together on the land, [103]*103but be was tlie only one tbat bad a bouse on tbe place. It was 1861 or 1862 tbat I first saw Kamai on tbe land using it. Kamai, Pilipo, kfakamonamona and Lnabine were brothers and sisters. I never beard tbat Lilin was not related to Kaapaa-bili, grandfather of these children; I always beard tbat they were related. I beard about this relationship of Lilin and Kaapaahili from others and also from members of this family; all these children tbat I have named.
Tbe defendant produced testimony in contradiction of plaintiff’s testimony, tbe larger part of which was tbe testimony of several witnesses for tbe defendant who did not know tbe pedigree of this family, nor were they acquainted with tbe members of Pilipo’s family when alive, but such testimony cannot prevail against tbat of witnesses who did know not only tbe pedigree but also tbe members of tbe family when alive.
This exception is overruled.
Tbe above is tbe only assignment of error set out in tbe bill of exceptions. But there appears in tbe bill tbe following:
“The Clerk’s minutes, tbe notes of evidence as taken by tbe stenographer, the exceptions noted by defendant’s counsel as appears by the stenographer’s notes,” &c., &c., &c., “are hereby referred to and made a part of this bill of exceptions.”
Tbe defendant at tbe bearing before this Court on examination of tbe evidence picked out two exceptions to tbe admission of testimony and asked tbat they be considered as if set out in tbe bill. This cannot be allowed, all assignments of errors must appear on tbe face of tbe bill of exceptions and none others can be beard. ”
Tbe words “The exceptions noted by defendant’s counsel as appears by tbe stenographer’s notes are referred to and made a part of this bill of exceptions” cannot be construed to cover tbe omission to set out tbe alleged errors in tbe bill itself. To entitle appellant to argue any assignment of error it must appear on the face of tbe bill, and be is not entitled to be beard or to rely upon any error not appearing therein.
[104]*104Tbe alleged exceptions set forth in the stenographer’s notes are as follows:
1st, Cross-examination of Mrs. Lavinia Kapu.
Q. In regard to the relationship, what you heard about the relationship between Liliu and Kaapaahili, was it from your husband alone or from others?
A. I heard it from others and also from members of this family, all these children that I have named here.
Q. Is that the way you testified, or did you testify the same in the equity suit?
A. I think I did.
Q. And how about Kaapaahili’s wife, did you see his wife?
A. No.
Q. So what you stated before is only what you heard from your husband?
A. From my husband.
Q. Not from the family, but from your husband?
A. From my husband; he was well acquainted with them.
Motion to strike out on the ground that there is no proof that her husband was a member of the family of Liliu and Kaapaa-hili or of the family of Pilipo and Kamae.
The Court: I think she has now qualified herself to be a witness.
Motion disallowed. Exception.
Second. From the stenographer’s notes of evidence, counsel for defendant selected from the testimony of Iaea, the defendant, the following:
Iaea: I have the land in my possession now, and hold it under a deed from Pilipo. ;
Testimony as to contents of deed objected to; objection sustained; evidence stricken out.
Cross-Examination:
Mr. Kinney: Did Pilipo make a deed to you?
Objected to; objection overruled. Exception.
Garter & Kinney, for plaintiff.
J. A. Magoon, for defendants.
Iaea: Pilipo made a deed to me of this property. This is tbe ■deed.
But these alleged exceptions could not avail tbe defendant. As to tbe first, tbe evidence moved to be stricken out should have been specially stated in detail, and a motion to strike out evidence of a witness generally must be overruled where there was other evidence given by that witness which was proper. In this instance, evidence given by witness as to pedigree obtained from members of the family was admissible, and the mere fact that she also heard the same matters from her husband, an improper source of testimony, he not being of the family, cannot ■destroy her proper evidence. If there was any evidence which she gave as coming from her husband only, then that should have been specified to the Court and a ruling obtained thereon. The alleged exception was not properly taken by appellant.
Second. The question on cross-examination: “Did Pilipo make a deed to you?” is clearly a proper question. The defendant had already on direct examination testified that “I have the land in my possession now, and hold it under a deed from Pilipo,” and the foundation was laid by defendant himself for the plaintiff to call for the deed.