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

Is the law OF forum, anu operates upon
all who submit themselves to its
Jurisdiction 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.u 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
reasonable transfer of Il certain part
of the estate as settlement of rights of
dover; it was undoubtedly benefit
to the wards estate to- have such
rights settled i'll the way it was done.
If it was an important matter to this
discussion to question the correctness
of the last quotation, it might be done
by reference to Section 81 of the above
mentioned Act of 1851 Civil Code,
Section 1850, which legalizes all pre-
vious sales and transfers by guardians
of their wards property; surely if
such transfers were already legal ''by
the common law of the Kingdom
the Legislature could hardly have
considered it necessary to legalize
them by statute; moreover, the case
Of Lao1ui as. PUOhW 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 RQmehdmeltd as. KdhOO-
EunO 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 1885,
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
ettectuate all previous non-perfOrm-
ance, neglect or acknowledgement of
guardians as the n-performance,
neglect or mismanagement of their
infant wards.
Whittingham's case 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 a 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 authorize
ton of the use of their names, by
which the company was misled, or
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., 373).
"Where infants are deprived of APP
parent rights by a decree of Court
they have the power, in new action,
to attack it, and this too whether or
not they were made parties to the
first suit" (Joyce Us. Joyce, D Cal,
I6I, syllabus, and Bank Of United
States Us. Richie, Pet, 1851 In
joyce Us. Joyce, the guardian dd Wem
fraudulently confessed bill in equity
against the rights of the minor de
PENDANTS.
In the case of V'dliey ct a., plaintiffs
in error, rs. Hart ct al, defendants i'll
error III 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
from the Justices Judgment to the
Court of Common Pleas, and that,
where an appeal lies, error does not
lie, and cited SdUagC IN error rs. Put
Huer a Mass, I'D. The Court said
&" The very minority of the party,
which is assigned for error in this
case, and which is not denied, dis
abled him from appealing. The de-
cision in the case cited in support of
the motion, is very guarded, limiting
it to cases where the party may APP
peal, and the Court explicitly state
their opinion that the statute in Civ
ing an appeal, has not taken away
the remedy by error i'll cases where
the aggrieved party, without any
laches on his part, cannot avail him
self of an appeal, which it is very
clear an infant cannot"
If an infant cannot avail himself of