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

IeSal capacity 10 OrlDS or mall lalH
this action. The wording of the de-
| murrer is somewhat SUI generis but
! is sufficient to present the question as
above stated. Plaintiff joins issue up
| on this demurrer, and the Judge OF
| the Circuit Court First Circuit. re-
serves the question as to the suffici-
ency of this demurrer and certifies the
same to this Court for its opinion
thereon.
The words 'mOn cOnpOS D2entis"
! are defined by Bowler as constituting
"a generic term, including all the
| species of madness, whether it arise
| from idiOcy, sickness, lunacy, or
| drunkenness" These words them
selves import the condition of a person
| not of sound mind, memory, or under
standing. In their legal accepta-
| 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 cOnfided 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 cOn1pOS mentjS, and a 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, Mass.
| 147.
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-
coded, constitutes good and sufficient
ground for divorce if the action was
| brought by a 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 a di-
vorce? End. 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" 2, 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 limo. |
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 |
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 adiudged to be non COM
pos nleHtis until January 81, 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 in 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; and 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 n guardian, at a time
when the ward is incompetent to give
any rational expression to his wishes
in the premises, is to so deprive him.
If rational he might be rot only will
Ing 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
il desirable for him to continue the
marriage relation Notwithstanding the
wrong committed. His silence for two
years lacking two weeks before the
commencement Of this suit, and during
the time of the commission of |
those offences by the respond
ent, ought not to be ignored by
Court. His right, personally to elect
or reject conformation cannot be de-
- rnuaH at the will Of q ON ,..Ii.,r, nf