Year: 1875

gust, 1862 he was lawfully married 10 the city Of
Canton in the Empire Of China, to one All 1uk,
and the said An Yuk is now living, has never
been divorced from the petitioner, and remains
and is his lawful wife. That on the 18th of De
cember, 1870, the petitioner was married in Hon
olulu to Kinimaka, that she deserted petitioner
10 1871. and is now living. That no children
we're born Of the said marriage with Kinimaka.
Both parties. All Fai and Kinimaka, were pres
ent in Court and the latter makes no opposition
to the petition.


l regard the two marriages as sufficiently
proved by the testimony. find difficulty,
however, in pronouncng sentence Of nullity of
the second marriage, upon the petition Of the
party whose PRIOR marriage is the ground for the
annulment of the second marriage. The petition
er knew, when he married the respondent, that
he had an undivorced wife living, and that his
second marriage was null and void. He was
guilty. therefore, Of fraud upon the respondent,
for there is no evidence that she knew of the
prior marriage; the Withholding from the respon-
dent the fact that be had a wife living was legal
fraud on the part Of the petitioner. How then
can the petitioner ask TO be freed from the mar
riage contract in which his own fraud entered, 10
order to procure the assent of the respondent?


Bishop on Marriage and Divorce, Sec 10,
says. we may presume that the guilty party
would not be permitted so far TO take advantage
Of bis own wrong, as to maintain a suit for nulli
ty solely on that account"


The counsel for the petitioner quotes per con-
ira, Sec 1915 of the Civil Code, which reads as
follows: "A marriage may be declared null on
the ground that one Of the parties has an und
vorced husband or wife living, on the application
of either of the parties during the lifetime of the
other, or on the application of such former hus-
band or wife,


regard this as meaning that the application
may be made by either the husband, if his wife
have an uDdivorced husband living or by wife, if
her husband have an undivOrced wife living but
not that the party may set up his own fraudulent
and criminal acts as ground for relief by the
Court.


This is not the case of marriages contracted
by error, duress or fraudulent representations,
where the parties imposed upon may waive the
tort and confirm the marriage, and thus render
good what was previously vOidable. The State
has an interest in the marriage relation, and the
law Of this Kingdom is that in order to validate
the marriage contract, it shall be necessary that
the man shall not have at this time q wife living,
aud that the woman shall not have at the time
husband living. Civil Code, Sec 1884.


The Legislature of 1874 has enacted the fol-
lowing law on this subject " No marriage of
Hawaiian woman with Chinaman shall be in
valid by reason Of a previous marriage of such
Chinamnn in China; provided, such previous
marriage shall have been unknown to such Ha-
waiian woman at the time of such marriage"


L cannot however, give retrospective action
to this law and apply it to the marriage of petit
toner with respondent in 1870; for by the laws
in force at the time the respondent, if she chose
would have right to be relieved from this mar
riage, aud would be entitled to Just allowance
for the support of herself and family out of the
property of the petitioner.


Petitioners counse! has cited from Bishop TO |
the following effect: But where the marriage
is void by reason of some statutable or common
aw nfrmity, as a former marriage undissolved,
which has an existence quite independent of the
plaintiff s misconduct, there he may proceed, not
n consequence, but in spite Of his fraud, aud al
ege, not the frand, but the other in6rmity. 1t is
or the interest Of the public, not only that the
status Of the parties themselves sbonld be known,
,ut that the legitimacy or illegitimacy of the
,hildren should be ascertaned and set at rest,
which otherwise might be subject to doubt aud
Of Judicial decision"


It is difficult to reconcile the above with other
stations from this learned text writer, and re-
ret that we do not possess the reports contain
ng the cases from which this doctrine is drawn.
As there are no children the issue of the mar
iage Of petitioner with respondent part of the
easou fails Considering the number of Chinese
Who are migrating to these islands and intermar-
ying with Hawaiian females, public policy would
eem to require that the Courts should not en-
ourage suits Of this character. The opposite
curse might result in the frequent discarding of
Hawaiian wives and the importing of Chinese
emales under the claim that they were former
rives.


On the ground that no one can be the gamer
rom bis own wrong, refuse to grant the prayer
{ the petition.


a. s. Hartwell for petitioner.


A. Francis JUDD,


Justice of the Supreme Court.