The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-08-04

cycl. of Law. 76S, Worthy V. Worthy,
SO Ga. 10. In the last above cited case
the Court uses the following language,
excepting we change the word "hus-
band" to 'fwifen and rice rersd to
make it fit this case: " For the crime
of adultery with which the rife is
charged, the law has provided punish
ment and the father or friend may
prosecute at their will; but whether
after gross and repeated intidelities,
the husband will continue to regard
her as his rife and live with her as
her huS6dHd, is for his decision only.
Death only can dissolve the marriage
relation without his consent, and no
divorce can or ought to be had in this
or any case but through the agency
and will OF the injured party.n
In BirdZell V. BirdZell, SO Kan. 433,
the Court uses the following lam
guage: Marriage is a personal status
and relation assumed for the joint
lives of the parties and can never be
created or brought into existence eN-
cept with the free and voluntary con-
sent of the parties assuming the same,
and it can never be dissolved or de-
stroyed while both parties are living,
so as to affect an innocent party there
to, except for grievOus and essential
wrong committed against such rela-
ton by the other party, and with the
free and voluntary consent and indeed
with the active and affirmative Volt
ton of the wrOnged and innocent
party
Bradford V. Abend, 50 Ill. IS was
an action to set aside a decree of di-
vOrce granted to the wife in an action
brought by her guardian at a time
when she was insane and actually
confined in an asylum in an adjoin-
ing State. That there was collision
between the guardian and the defend
ant is patent upon the face Of the
record, but the Supreme Court of the
State of Illinois thought it unneceS-
Sary to consider that branch of the
case, and based its decision solely
upon the ground that being insane,
she could give no consent to the pro-
ceedings had in the divorce case, and
hence everything that was done in
her name was invalid. Consent in
wolves an act of reason, and when one
is bereft of reason, it follows that their
can be no consent given that comes
from reflection" In that case the
decree of divorce was set aside AS
fraudulent and void.
Under the General Divorce Statutes
of England. it has been held that the
guardian of lunatic may bring suit
for mere legal separation Or u multi
ty suit, or suit for alimOny; and in
some of the United States the Legis-
lature has expressly conferred upon
guardians the right to sue for and OBJ
tain for their insane wards absolute
divorces, but in all such cases the de-
crees have uniformly been based upon
the special statute authorizing them,
and not upon the common law. Such
is the case in Rhode Island and since
1860 ia Massachusetts,.
Second: Do the statutes of Hawaii
confer such right or power?
Sec. 1851 Comp. Laws gives to the
guardian when duly appointed 1.-THE
care and custody of the person of the
ward, and the management of all his
estate" This expresses generally his
statutory powers, but the wife consti-
tutes no part of the estate, real per-
sOnal or mixed, of the husband. The
days of such slavery and proprietor
ship have, among the civilized ma
tions of the earth long since sunk
into endless night; neither is the wife
part of the person of the husband.
The legal fiction of the unity of the
spouses never included their person
ality or individuality. The guardian,
under his letters, acquires no control
of the wife, but only the person of his
ard.
Among other duties imposed upon
the guardian by legislative enact
ment is the following found in Sec.
1857 Comp. Laws: "Every guardian
appointed under the provisions of this
chapter shall appear for
and represent his ward in all legal
suits and proceedings, unless another
person is appointed for that purpose
as guardian or next friend"
This section and section 1871 Wore
enacted with reference to the same
general subject, and to be properly
construed must be read together, and
especially so when considering such
actions as the guardian may bring
when his ward is the plaintiff. OF
course if the ward is made defendant
whatever might be the action, being
an involuntary litigant, it would
doubtless be the duty of the guardian
to appear and protect the interests of
his ward in all such litigation, but such
actions as are necessary or proper for
the protection of the person or estate |
of the ward are all, in my opinion,
which, by the provisions of this sec
ton, the guardian of his own vOlition
is authorized to bring or maintain in
the name of his ward.
"Guardians are not technically rep
resentatives OF anybody. They simply
stand in the position of protectors.
The guardian is the counsel assigned
by operation of law, to conduct the
suit" Fox V. Minor, 81 Cal. 112.
Should the estate real or personal !
be threatened with waste or loss, the
guardian could and should take any
action necessary or proper for its pro-
lection. Should he deem the bodily
presence of the offending wife harm
ful or injurious to the person
mental or physical, of his ward,
he could doubtless find ways and
means through the Courts for person
al protection from such conditions, or
he may bring any other action neces-
sary to protect the life or person of his
ward, but an action for divorce does
not come within this category; on the
contrary, it is held both in England
and the United States that an action