The Hawaiian gazette., 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 it
| by action but it is perfectly clear
that if the right to maintain an ac-
| ton fer 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
| (Ledst0'e as. MdboHing Township,
Watts 90, and Angel on Linn. 59).
In relation TO the contention that
no disability not mentioned in the
statute of limitations may be consid-
cred, I find contrary doctrine held
by Hopkins as. Bell, g Cranch 454),
Hanger as. A6bott, IS Wall. $50 and
BroUB as. SduerWeiR 40 Wall. ODD,
besides several similar cases in the
State Courts. The Court say in
BrO1Cn as. SduerlOeiR, the creditor
has been disabled to sue by a 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. 1t seems
therefore, to be established, that the
removing of n 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 Il matter of fact they referred to the
case of a creditor who was prevented
from sueing by the American Civil
War.
The case of Tdnce Us. Vdncc, (10S L.
5. SD and Pryor rs Ry5ur75,. (16 Ark.
GID have some appearance of being
in opposition TO my views on this
point, but in the former it is shown
that the minor is reasonably protected
by the statnte which makes it the
duty of al officer of the court to act
for him. The ease of Pryor as. Ry-
burn, / have not been able to find eX-
cept in digests.
In view of all the foregoing cases, L
find my original opinion upon this
point rather strengthened than other
wise. Not a single case has been re-
ferred to in which an infants rights
have been disposed as il is proposed
to do in this case; il 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 by that Act;
and | think that Under its legalizing
provisions 1 may safely dissent from
the argument that off 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 a claim for land is
an act the consequences of which
would be equally binding upon the
infant.n
But is suggested that even if Lot
KameEameha was not bound by the
limitations of the statute during his
minority, "it was his duty to as
sert his claim to this land within
reasonable time after his coming to
full age.o 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
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 I'M
certain and unWieldly machinery of |
in order TO protect his in
terest. He asserted his interest in the |
land so far as was in his power by !
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 right of possession. He
md his representative are entitled to
heir ebay in court,n that is, their
to present and prove their
'laim before the Land Commission,
Dr similarly constituted authority;
hey have never had such opportu-
lity.
Justice and equity and the prevail
ng sentiment of legal decisions, un-
Ter common law principles through a
ong period, alike forbid the destruc-
ion or injury of the rights or estate
If infants, except through legal pro-
in which, beyond any
Ioubt, they are fully and faithfully |
represented.
Not finding in this case as pre-
ented any evidence to show that the
natural guardian of Lot Kamehameha |
Ook any action whatever in the way
# proving his sons claim to the
in question, it is fair to pre-
ume that he was guilty of laches,
Which conduct cannot prejudice his
minor child
From the foregoing authorities and
easoning, | am compelled to dissent
rom the opinions of the majority of
he Court, and to hold as before, that
he plaintiff has not shown a right of
to the disputed premises.