DISSENTING OPINION OP
GALBRAITH, J.I do not concur in tbe argument or conclusion announced in the foregoing opinion. •
The rule recognized by the Supreme Court of the United States, and absolutely binding on the Courts of this Territory, is that, “where a party returns to a court of chancery to obtain its aid in executing a former decree, it is at the risk of opening up such decree as respects the relief to be granted on the new bill.” Lawrence Mf'g Company v. Janesville Cotton Mill, 138 U. S. 552, 561.
This rule clearly gave the trial court the power in hearing the bill to open up and re-examine the decree of 1858, and, it seems to me, that with the possession of the power there was an implied duty to exercise it. Aside from this consideration a decree that has been permitted to remain dormant for 4A years needs a “clear bill of health” to enable the doctrine of stare decisis to be invoked in its behalf and to authorize a court after so long a time to decree its specific performance.
This decree of 1858 did not divest the respondent’s grantor of the legal title to the property in dispute, nor did it pretend to do so. It merely ordered Armstrong, as guardian, to convey the property. This he did not do. Why we do not know. The fact that complainant and. its grantor remained passive so far as this decree was concerned for all these years while the legal title to property was in another and took no step to force a conveyance of title under the decree is difficult to reconcile with the claim that they felt secure in the legality of the decree. I do not deem it necessary to go into the merits of this decree further than to state that there is sufficient on the face of the bill to raise a serious question in my mind a.s to its correctness.
I do not consider the claim well taken that the respondent and her predecessor in title “acquiesced” in this decree by the fact, that no action was taken to have the same reversed or set aside. *667They were not compelled to take the initiative or to do anything; so long as no attempt to execute the decree was made. The decree was harmless to them so long as no attempt was made to enforce it. The burden of action was on the complainant. The legal title was in the respondents’ grantor and so. long as nothing was done to compel him or them to convey, his, or their, inaction cannot be said to be “acquiescence^ to her prejudice.
The doctrine of «tare decisis has been invoked in behalf of this decree. It seems to me that this doctrine will prohibit the granting of the prayer of the bill. Blackstone says relative to this doctrine “Eor it is an established rule to abide by former precedents. Where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion; as also because the law in that case being solemnly declared and determined,, what before was uncertain, and perhaps indifferent, is now become a permanent rule which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.” 1 Blackstone 69.
I understand that it is the “former precedents” of this Court not the uncertain precedents of the Circuit Court (which can only be ascertained by a tedious search of the files of that Court), that this Court should “abide by” and that it is in this way that we may “keep the scale of justice even and steady and not liable to- waver with every new judge’s opinion.”
This Court has decided in a suit- by a minor to collect rent due, that the action should be commenced in the name of the minor by its guardian. (Meek v. Aswan, 7 Haw. 750). The converse of this proposition is that a suit against a minor shorild be against him by his guardian and not against his guardian alone. This is admitted so far as this case is concerned. “It may be that this is the better rule; that it should apply as well to actions against minors, that the weight of modem authorites, elsewhere is in support of this view and that such is the practice at the present *668day in. this Territory.” Notwithstanding this admission the decision in the Aswan case is not followed, nor is it overruled, in express terms, for the reason that a “contrary practice prevailed in our Courts prior to the decision in the Aswan case.” This “contrary practice” may have been permissible prior to the decision in the Aswan case but that decision having- declared the practice wrong we cannot now approve of such practice without overruling that case. That case ought not to be overruled for the reason that it is good law and is supported by the great current of judicial authority elsewhere.
Again what is the evidence of this contrary practice? No decisions were cited in this jurisdiction to support it. "We are referred to the files of some seven or eight cases in the Circuit Court where the papers are entitled as were those in the case in which the decree in question was rendered. It is not contended that the correctness of the procedure was raised in any of these cases or that the ruling of a Circuit Judge supported it, hut it is contended that there was an “implied acquiescence” in the practice “from the very silence of Court and counsel.” So we have only the “implied acquiescence” of the Court and counsel in seven or eight cases in the Circuit Court extending over a. period of thirty or forty years to support the majority of the Court in Refusing to follow the decision of this Court rendered at a time when the Court was composed of five judges. This reasoning followed to its logical conclusion, it seems, would prevent this Court from overruling a practice or procedure of the Circuit Court no matter how erroneous provided “court and counsel” had by silence acquiesced in it in a few cases, extending over a number of years.
Again the practice of digging up the files of the Circuit Court ■and referring to them to estapblish a practice or psrocedure does not appeal to me very strongly. There is enough difficulty in determining such questions when reference is made to reported cases where the evidence of the question passed upon is supposed to he preserved in practicable form. To search through a lot of files of the trial court and examine .the entitling of the papers and the endorsement on the summons is not in any way a satisfac*669tory method to establish a question of procedure, let alone to justify an appelate court in passing by one of its own solemn decisions.
The heirs of Ninimaka were the real parties in interest in the suit resulting in the decree of 1858 and sought to be enforced by the bill. These heirs were not made parties to that suit, were not served with process therein and made no, appearance, although their guardian was a party, was served and appeared and contested the cause still the heirs were not parties and were not bound by the decree nor is the respondent in this case and the decree ought not to be enforced without a re-trail of the cause.
The decree sustaining the demurrer to the bill should be affirmed, and the appeal dismissed.