The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-06-23

OPINION of THE COURT PER JUDD, c. J.
This is peculiar case. An ac-
ton of covenant is brought to re-
cover damages laid at SIS, 900 by the
plaintiff, the father of one Math las
B. Rose, a minor, who gave him
during his minority in adoption to
the late King. The articles of
adoption are dated the 9th Deem
Der, 1886, and they show that Nj.
Rose gave absolutely to His Maj.
esty the King to keep as his child
Matthias B. Rose, aged Is years, in
Honolulu, the minor son OF said
Moritz Rose upon condition that
His Majesty the King do treat said
Matthias B. Rose as his own son in
all respects, and properly clothe,
feed, educate and care for him until
he shall have arrived of legal age"
And His Majesty the King cove
nanted with M. Rose "to care for
said Matthias B. Rose in all respects
as good, faithful and prudent
father should, and to properly feed,
clothe, support and educate said
minor until he shall have arrived
of age"
The complaint alleges breach Of
the covenant in that the King dur
ing his lifetime and during the
minority of said Matthias B. Rose
did not nor would care for said Ma
thias B. Rose as good, faithful
and prudent father should and did
not properly clothe, feed, support
and educate said M. B. Rose, and
the administrator since the decease
of the King has not cared for,
clothed, fed, supported and educat-
ed the said minor.
The case was tried by jury who
rendered a verdict for the defend
ant.
The only exceptions relied upon
by the plaintiff are to the Courts
certain instructions to the jury.
First, the Court said: ssif in his
opinion the King thought it was
proper for the boy to live with his
mother he had right to allow him
to do so. He was not bound to
keep the boy at his own house. It
was a matter for the King alone to
Judge of, whether to send the boy
to live with his mother or not"
Second: "That defendant is not
liable for the willful acts of the mi
nor in refusing to go to school,"
The Court charged the jury that
"the first point for them to con-
slider was whether there had been
any breach of the agreement of
adoption on the part of the King"
elias His late Majesty the King
carried out to the best of his ability
what he agreed to do? That will
be your first consideration" The
question of breach was thus prop
erly left to the jury, in general
terms. But further on in the
charge the Court said: "Something
has been said in regard to the boy
living with his mother. The King
under his agreement was bound to
use or exercise proper care over the
boy, but was not bound under this
contract to have him live in the
same house with him." We can
see 10 objection TO the charge thus
far. The Court continued: off in
his opinion as a prudent parent, he
thought that the boy would be bet
ter off with his mother, who was
married at that time to her present
husband, if he thought it was
proper for the boy In his judgment
to live with his mother, he had the
right to send him there. He was
not bound, as I have said, to keep
the boy in his house." This part
of the charge would seem to imply
that the King was not to be held
responsible for any act respecting
the boy if in his judgment it was a
wise and prudent thing to do,
whereas the wisdom of any act Oh
its nature and whether it constitu-
ted a breach of the agreement
should have been left to the jury.
The Court here characterized the
particular act in sending the boy to
live with his mother as one which
he had q right to do. The jury
were properly the judges of this
and not the Court. But upon a
careful review of the whole case,
we do not see that the plaintiff
could have recovered any damages,
even if the charge had been without
error. The complaint alleges a
breach of the covenant to the DAM
age of the plaintiff, who is the
father of the boy adopted and who
made the agreement with the King.
The Court properly instructed the
jury that ''if they believed the con-
tract was not kept by his Majesty,
nloin%ip -, o,,al~ r1a-~,