The Hawaiian gazette., 1894-08-03

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band'' to "wife' and rice rersa to
make it dit this case: "For the crime
of adultery with which the wife is
charged, the law has provided punish
ment and the father or friend may
prosecute at their will; but whether
after gross and repeated infidelities,
the husband will continue to regard
her as his i0ife and live with her as
her husband, 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"
In Birdzell V. Birdzell, SO Kan. 4SS,
the Court uses the following LAM
guage: Marriage is personal status
and relation assumed for the Joint
lives of the parties and can never be
created or brought into existence ex-
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, SO Ill. rs was
an action to set aside a decree of d.
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 a suit
for mere legal separation or 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 in Massachusetts,.
Second: Do the statutes of Hawaii |
confer such right or power?
Sec. 1851 Comp. Laws gives to the |
guardian when duly appointed "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
ward.
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.u
This section and section 1851 were |
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 litigaDt, 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, 80 Cal. H..
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
full 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
it is held both in England
and the United States that an action
Tor divorce is an action in rem and
not IN l)ersOndDl.