The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-01-22

tiff is not embraced by that statute
1t does not, and never was intended
that it should apply to claims for the
recovery of which the party entitled
| thereto could not maintain an action.
The statute does not eXtinguish the
debt or claim; it only forms bar to
the remedy of the party to recover 1T
by action; but it is perfectly clear
that if the right to maintain an ac-
ton for it were never vested IN him,
the statute can be no bar to it, because
it would be contrary to reason to hold
that the statute operated upon and
took that away which never existed"
| (LeuSla'C as. Mub0Hing Township, )
Watts So, and Angel on Linn. So.
In relation to the contention that
no disability not mentioned in the
statute of limitations may be censid-
cred, [ find contrary doctrine held
bv hopkins as. Bel, Is Cranch 49,,
Hanger as. Abbott, IS Wall. $50 and
Bro10R rs. SauerWein, 90 Wall. ~,
besides several similar cases in the
State Courts. The Court say in
BrotCn as. ,SoUer7OeiB, the creditor
has been disabled to sue by superior
power, without any default of his
own none OF the rea-
sons which induced the enactment of
the statutes apply to his case; that
unless the statutes cease to run dur
ing the continuance of the superven-
/ ing disability, he is deprived of por-
I ton of the time within which the law
contemplated he might sue. Itseems
therefore, to be established, that the
| removing of statute of limitations
may be suspended by causes not men
toned in the statute itself" These
words without modification might
have referred to the status of an in
FAINT so far as intrinsic evidence goes;
as u matter of fact they referred to the
case of creditor who was prevented
from sueing by the American Civil
War.
The case of Fdnce rs. Vance, DOS L.
S. 521) and Pryor rs Ry6uy7',- DC Ark.
GU have some appearance of being
in opposition to my views OH this
point, but in the former it is shown
that the minor is reasonably protected
by the statute which makes it the
duty of an officer of the court to act
for him. The case of Pryor rs. Ry-
burn, have not been able to find eX
cept in digests.
In view of all the foregoing cases,
find my original opinion upon this
point rather strengthened than other
wise. Not Il single ease has been re-
ferred to in which an infants rights
have been disposed as il is proposed
to do in this case; it is reasonable to
suggest that there are no such cases
on record. [ find no authority to sup
port the view that Hawaiian guard
ians or parents, before the Act Of 1851,
might injuriously effect their wards
estates, except as injurious transfers
might have been legalized 10y that Act;
and | think that Under its legalizing
| provisions / may safely dissent from
the argument that IF the law was
that all acts of a guardian or father
respecting the disposition of an in
fant's property bound the infant, his
| failure to present claim for land is
an act, the consequences of which
would be equally binding upon the
infant"
But is suggested that even if Lot
Kamehameha was not bound by the
limitations of the statute during his
minority, sit was his duty to as
sert his claim to this land within q
| reasonable time after his coming to
full age.n 1t must be borne in mind
that the time in which the Land
Commission had authority to receive
| claims had expired before Lot Kane
! hameha became of age. What use,
then, would it have been for him to
present his claim when the Land
Commission had ceased to exist as a
committee for receiving claims? No
court would have issued a mandamus
to compel the Land Commission to
do what was not their duty and what
they have no power to do unless they
should be thereto duly authorized by
the Legislature; and it is too much to
demand that under the circumstances,
it was necessary that Lot Kameha
meha should set in motion the un-
certain and unwieldly machinery of
legislation in order to protect his in
terest. He asserted his interest in the
land so far as was in his power by
continuing to occupy the premises.
| do not think that it is claimed
that his interest in the premises has
ripened into perfect title, but there
has been no valid forfeiture of his
interest whereby the Government has
acquired a right of possession. He
and his representative are entitled to
their " day in COURT that is, their
opportunity to present and prove their
claim before the Land Commission,
or similarly constituted authority;
they have never had such opportH-
nifty.
Justice and equity and the prevail
ing sentiment of legal decisions, un-
der common law principles through a
long period, alike forbid the destruc-
ton or injury of the rights or estate
of infants, except through legal pro-
proceedings in which, beyond any
doubt, they are fully and faithfully
represented.
Not finding in this case as pre-
sented any evidence to show that the
natural guardian of Lot Kamehameha
took any action whatever in the way
of proving his sons claim to the
premises in question, it is fair to pre-
sumo that he was guilty of laches,
which conduct cannot prejudice his
minor child.
From the foregoing authorities and
reasoning, | am compelled to dissent
from the opinions of the majority of
the Court, and to hold as before, that
the plaintiff has not shown right of
possession to the disputed premises.