The Hawaiian gazette., 1889-01-22


is the law of forum, and operates upon
all who submit themselves to its
| iurisdiction.n An infant cannot be
said to have submitted himself to its
jurisdiction, except through the ac-
ton of a guardian acting for his
| benefit.
In Ldanui as. Puohu, the Court
uses strong language in relation to
the powers of guardians previous to
the enactment of the Statute of
Guardians and Wards of 1851. 1t says
"they possessed and exercised (by
| the common law of the Kingdom)
the absolute right to dispose of the
real and personal estate of their wards
as might suit their own will" This,
however, cannot be interpreted to
mean that they might exercise such
| powers to the injury of their wards !;
the disposition of the property by the
guardian disputed in that case, was u
reasonable transfer of certain part
of the estate as settlement of rights of
| dover; it was undoubtedly benefit
to the wards estate to- have such
rights settled in the way it was done.
Ii it was an important matter to this
GOIIGtIllGSS
of the last quotation, it might be done
by reference to Section 81 of the above
mentioned Act. of 1851 Civil Code,
Section 1880, which legalizes all pre-
vious sales and transfers by guardians
of their wards property; surely if
such transfers were already legal tby
the common law of the Kingdom
the Legislature could hardly have
considered it necessary to legalize
them by statute; moreover, the case
of Ldd1lui Us. PuOAW applies to statu-
tory guardians, that being the capa-
city of the guardian whose acts were
questioned in the case; and there is
nothing to show that the Court in
tended to include natural guardians
or parents in its statements of the
powers of guardians
The case of Rdnlehdnleha as. KdbOO-
kdRO at first sight has the appearance
of being an authority for the right of
natural guardian to iniuriously
dispose of his minor child's estate
previous to the Act of 1851, but upon
examination / find that it was the
legalizing Act above referred to which
led the Court to its conclusions. 1t
says: "Any grant of right of way
over the plaintiffs land, or any con
veyance whatever of any part of his
estate, made by Governor KekuanaSa
during the plaintiffs minority, and
before the enactment of Section 81 of
the Act Regulating Guardians and
Wards Civil Code, Section 1880,
passed on the fourth day of August,
1851, must be considered absolutely
conclusive and binding upon the
rights of the plaintiff" If am right
in this view the case has no signifi-
canoe whatever to the present issue,
as the legalizing Act of 1851 cannot
by any stress of argument be said to
etfectuate all previous non-perform-
ance, neglect or acknowledgement of
guardians as the on-perfOrmance
neglect or mismanagement of their
infant wards.
Whittingham's ease does not appear
to have any direct application to the
question at issue.
! have found, on the other hand,
cases which support the doctrines that
a minor may not be prejudiced in his
rights of property i'll any proceedings
iii which he is not represented, and
that guardian may not injuriousIy
affect his minor wards interests by
admissions or negligence.
1t is not possible "to preclude the
minor heirs from asserting their rights |
to property received from their father;
by reason of any negligence of their
guardian There is no cir
cumstance here upon which an
estoppel against the plaintiffs can be |
raised. To create an estoppel against
them there must have been some act |
or declaration indicating an authoriza-
ton of the use of their names, by |
which the company was misled, or a |
subsequent approval of their use by |
acceptance of the moneys received |
with the knowledge of the transfer.
No act or declaration is mentioned |
either of the guardian or her children
which tends in the slightest degree to
show that any assent was given to
the use of their names.n Telegraph
Company Us. Davenport, 81 Z. S., 373l.
where infants are deprived of ap-
parent rights by a decree of Court
they have the power, in new action,
to attack it, and this too whether or
not they wore made parties to the
first suit" (Joyce Us. joyce, . Cal,
ISL, syllabus, and Bank of United
States Us. Richie, Pet, I28.) In
Joyce Us. Joyce, the guardian al LHen
confessed a bill in equity
against the rights of the minor de
In the case of Vdlier ct a., plaintiffs
in error, rs. Hart ct al, defendants in
error I'll Mass, 299), the error
assigned was the minority of one of
the original defendants. The de-
PENDANTS in error moved to quash the
writ on the ground that an appeal lay
rom the Justices Judgment to the
Court of Common Pleas, and that,
where an appeal lies, error does not
lie, and cited SdUdgc IN error rs. Put
iger a Mass, I'D. The Court said
The very minority of the party,
which is assigned for error in this
.ase, and which is not denied, dis
Ibled him from appealing. The de-
.isiOn in the case cited in support of
he motion, is very guarded, limiting
t to cases where the party may APP
zeal, and the Court explicitly state
heir opinion that the statute in Civ
ng an appeal, has not taken away
he remedy by error in cases where !
he aggrieved party, without any
aches on his part, cannot avail him
elf of an appeal, which it is very
lear an infant cannot"
If an infant cannot avail himself of
II appeal, much less can he institute