The Hawaiian gazette., 1894-08-03

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this action. The wording of the de-
murrer is somewhat sal qeneriS bu
is sufficient to present the question a:
above stated. Plaintiff joins issue up
on this demurrer, and the Judge o.
the Circuit Court First Circuit. re.
serves the question as to the sutfici'
ency of this demurrer and certifies the
same to this Court for its opinion
thereon.
The words 'nOn compos meRtis''
are defined by Bowler as constituting
"a generic term, including all the
species of madness, whether it arise
| from idiocy, sickness, lunacy, or
selves import the condition of person
not of sound mind, memory, or under
standing. In their legal aceepta-
ton they import such want of mind
or understanding as renders the
! person incapable of contracting, or OF
managing or conducting his own bus
mess affairs with ordinary prudence
and discretion. In all civilized gov
ernments such persons are eontided TO
the care of certain courts, and by
statute such courts are, upon proper
showing and proceedings had, author
lied and empowered to appoint guard
ians of the estate of such party, and
in cases where such disability renders
him incapable of caring for himself,
then of his person as well as of his
estate.
Sec. 1850 of our Comp. Laws, taken in
| connection with Sec. 1872, provides
for the appointment of such guardian.
Under the provisions of this statute,
this libellant has been duly adjudged
non cOnpOs mentiS, and guardian
of his person and estate has been duly
appointed, and such adjudication, so
long as the guardianship continues, is
conclusive evidence of the disability
of the ward. White V. Palmer, 1 Mass.
l47.
The demurrer interposed by the de
PENDANT must be held to admit all the
allegations of the bill, including the
adultery charged, and that, it is con-
ceded, constitutes good and sufficient
ground for divorce if the action was
brought by libellant of sound mind
and without the intervention of a
guardian. The questions arising upon
this record are: LIST. Can guardian
of an incompetent person, at common
law, institute and maintain, in the
name of his ward, an action for di-
vorce? 2nd. If not at common law,
do the statutes of these Islands confer
the power upon, or make it the duty
of the guardian to commence and
prosecute such action?
First: 1.-THE remedy by divorce is
purely civil and private prosecution,
under the control and at the volition
of the party aggrieved, and he may
bar himself of the remedy in several
ways by his own act" ., Kent's
Com. 100.
There is no offense which either of
the spouses can commit, except the
actual killing of the one by the other,
which, per Sc, operates to annul the
marriage, neither is there any act or
offense by the guilty party, however
heinous or revolving, which the inno-
cent party may not condone. That
the respondent in this case has often
and with divers persons been guilty
of acts of adultery, running back
through period of two years imme-
diately preceding the commencement
of this action, is admitted by her
pleading. 1t is true she is not finally
nor necessarily bound by such admis-
sion, for should this demurrer be
overruled, upon proper application,
she would doubtless be permitted to
answer and deny all the accusa-
tons made against her, should she be
so advised; but as the case now stands
all charges against her are admitted,
but il will be observed that the plain
tiff was not adjudged to be non COM
pos meHtis until January "a, 1894,
and this action was commenced only |
fifteen days afterward, and until such |
adjudication he is, in law, presumed |
to have been sane and in the full pos
session of sound mental faculties, so
that it appears from PLAINTIFF own
showing that these acts of adultery |
now complained of had been running |
through a period of twenty-three |
months and half of his sanity, and |
during which time he was, presump- |
lively, continuously living and cohab- |
iting with her as his wife. In his |
complaint it is not averred that he |
was ignorant of these several Offenses,
and as it is always presumed that a |
pleader will state his case in his own |
behalf as fully as the facts will war
rant, it is legal to presume that he |
had such knowledge; and yet, during |
all this time, he took no steps looking |
to divorce from his wife, or ia any |
way terminating his marital relations
with her.
The power to condone is personal, |
and can be exercised at the will and |
pleasure of the innocent party, but by |
no other person; aud it would seem
equally clear that he cannot be de-
prived of this personal right and pri-
vilege by any other person; and yet,
to successfully prosecute this action to
final decree, by guardian, at time
when the ward is incompetent to give
any rational expression to his wishes
in the premises, is to so deprive him.
II rational he might be rot only will
ling but eager to condone the wrong.
There may exist, for aught the Court
or his guardian can know, many
reasons, which, to the ward, when
sane, would overcome all resentment
against the guilty party, and make
it desirable for him to continue the
marriage relation notwithstanding the
wrong committed. His silence for two
years lacking two weeks before the
of this suit, and during
the time of the commission of
those offences by the respond