The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-08-05

| OH pal CoOC0s tAto Ol0Ol Il
signed by Mr.. Justice, Robertson
fthe petition setting out the names Of
the parties plaintiff, including Kane
I haokalani by .Malaihi- her next
friend, was before the Justice at che
time, and can it not u be- fairly said
that in making this order the Jus
tice gave his sanction to Malaihi ap-
tpearing as next friend of the minor
/ Kamehaoka1ani. The. rule does NOT
require the appointment OF, gro
.clteia ami or next, friend, ut only re
luires the sanction of the Court, or q
Justice thereof, for person to sue
in that capacity. Itseens to me by
allowing process TO issue on that
petition, the Justice gave his sane
ton, and that the minor ,Kamehao-
kalani was properly represented in
Court, The legal presumption. tcsr-
tainly at this distanceiaof itime} is,
lithat all things in ajudicial proceed
ling which ought to be done; were
done I find in the record 'of the
former case, that Mr.. &C. Harris,
one Of. the respondents, referring to
the minor. says. Kamehaokalani
is. still a minor and here
by next friend.h But lceun-
sci for Mrs Haalelea, the
respondent in this case contends that
even the utter failure to procure the
appointment of a next friend is only.
an irregularity to be taken adyan !
,tage of by motion at, the time, and
does not affect the jurisdiction of the
Court. ,"5s .l-,-.. a.-. 9tp
Il "Ihe Court entertained jurisdie-
ton in the former CASE. 's-' e'i'
80 The general rule is that the
omission. to procure the appointment
Of a guardian or prOehein ana for the
infant plaintiff is no ground for non
suit and can only be taken advantage
of as an irregularity by motion. ~
,- est is not indispensable in ali
cases that the proceedings show q
formal order of Court" admitting a
next friend or guardian to prosecute
the suit for an infant plaintiff; the
leave of the, Court may be inferred
from its entertaining the action III
its early stages o-..a 9, .s4a
-,'"Tyler on Infancy and Coveture,
2 Ed.:pp. 1876 and 1877. 49, ,'j,''st='i'i
"There are number of cases cited
in support of the above. . 49, ~. u
can infant is bound by a decree
in a. cause where he is plaintiff, and
after coming of, age he is uotallowed
by new bill to dispute anything
that was done during his minority.
The rule of law is, that an infant is
as much bound by Judgment in his
own action as person of full age.
Gregory vs.. Molesworth 3 Atk.
626, az
''Chitty Equity Index, vol. 5, p,
1t is contended that in any, case
of improper action by prOcheia ami,
where the infant might obtain relief,
the application to the Court must be |
made by the infant promptly on be:
coming of age, otherwise the infants
silence will amount to confirmation,
This contention / understand to be
correct, persons cannotsleep on their
rights for all time. In this case the
infant who was sixteen years of age
at the time of the former case was
decided, lived until 1862, consequent
" she slept on her rights (if she had
any, for about sixteen years remain
ing silent up to the time of her
death. and her husband, the petit
Toner, has remained silent for about
sight years. In the case of Thurston
vs., Bishop VII Hawaiian Repts., the
Court held that it was the duty Of
minor to assert his claim within q
time after his coming. to,
tull age. ..,- a.., 'sa..a
'After careful examination of this
,ase, and of the authorities; con-
'ider that the petitioner is estopped
rom what would amount to a re-
hearing of the original petition in
he case before Mr.. Justice Robert
'on.. Both that petition and the one
n this case allege the same grounds.
Why the probate should be revoked,
liz: THAT the will is forgery. II
Inc plea IN bar is sustained"
y By THE CoURT. -' n
We support the decision appealed j
rom.
The rule which required ''the \
auction of the Court, or of one of \
he Justices thereof, before the issu-
ng of process" upon the application
f one DESTROYS of suing as next !
riend of a minor, was Substantially
omplied with. The Judges order
or the issue OF. process endorsed +,
lpon the petition, was a sufficient
sanction" or, authority for the per-
on DESTROYS of acting as the next t
riend of the minor, to act through
ut the proceediugsin such capacity.
Moreover, the minor in question
7as joined with several adult plain
ifs, and all were represented by |
ounsel, and the case heard upon its /
lerits. There is no claim that the
ase was not fully and adequately
resented and tried.
June 25th, 1890.
G. L.. Carter for petitioner, ap-
ellant.
f. M. Hatch for Mrs HaaleIooj 1