*370DISSENTING OPINION OF
HARTWELL, C.J.I agree that the Territory, and not the superintendent, should be the plaintiff, but I think that the petition could be amended as was done in Chappell v. U. S., 160 U. S. 499, and in conformity with the suggestion in Meek v. Aswan, 7 Haw. 750, 754, in which it was held that “the objection to the complaint (that an action by a guardian 'to recover rent for use of the minor’s land should be brought in the name of the minor, by her guardian, and not in the name of the guardian), even if tenable, should not have been visited with a dismissal, but an amendment should have been allowed.” In this view the other questions presented by the demurrer would require adjudication, namely, the jurisdiction of the Territory to condemn land for highways, the necessity of á prior appropriation for the purpose, the averment that preliminary steps, without specifying them, have been taken, and the failure to accompany the petition with a map, all of which exceptions, I think, should have been overruled except that relating to' the map, which would permit, as I think, an amendment.