makes no mention of the mother, who is consequently not within the benefit of its enactments (q): nor does it extend to illegitimate children (r); but where a father has by will named a guardian for any child of this description, the court of chancery, (in the exercise of that jurisdiction to which we shall presently refer,) will in general appoint the same person (s). 5. Guardianship by election; which is a mode of appointment recognized by the law, though of infrequent occurrence. For an infant having lands in socage may, after fourteen, when the guardianship in socage terminates, elect a guardian for himself, if there be no other then ready to take charge of him and his property; and, according to Lord Coke, the same thing may be done in certain cases by an infant under fourteen. But the law on this subject is obscure; and as such an election, at whatever age it is made, will in no case supersede the authority of the court of chancery to interfere for the infant's protection in the manner to be presently explained, this kind of guardianship is now almost wholly disused (t). 6. Guardianship by appointment of the Lord Chancellor (u). This species, though now so important as in a manner to have superseded that in socage, is of rather modern introduction, having gradually established itself since the introduction, by the statute of Charles the what words in a will are sufficient to appoint a guardian, see Miller v. Harris, 14 Sim. 540. As to the rights of the guardians as against each other, when more than one is appointed, see Gilbert v. Schwenck, 14 Mee. & W. 488. (q) Vaughan, 180; Ex parte Edwards, 3 Atk. 519. (r) Christian's Blackstone, vol. i. p. 462, cites 2 Bro. 583. (s) Ibid.; Peckham v. Peckham, 2 Cox, 46. There formerly existed another species of guardianship by statute, viz. that by construction of the 4 & 5 Phil. & M. c. 8, which enabled a father, by deed or will, to assign a guardian to his daughter, under sixteen. 1 Bl. Com. 461. But this statute is now repealed by 9 Geo. 4, c. 31. (t) Co. Litt. by Harg. 88; 3 Atk. 624; Curtis v. Rippon, 4 Madd. 462. (u) As to the jurisdiction of the Court of Chancery over the person and property of infants, see Spence, Equit. Jur. vol. i. p. 611. second, of guardians by the father's appointment: for, as the father may fail to exercise his power in that respect, it was soon found necessary to provide for cases in which such omission may occur; and the court of chancery is held to possess a general jurisdiction with respect to the custody of infants, derived, as is supposed, from the prerogative of the crown, which, as parens patriæ, interposes its protection in favour of all those who are not of capacity to maintain their own rights (x). The court of chancery, then, if application be made to it on behalf of an infant (whether legitimate or illegitimate), who has no other guardian, will appoint him one for protection both of his person and estate; and has a right to exercise this jurisdiction, if sufficient reason should appear, notwithstanding the existence of a guardian in socage (y); and where there is a guardian under the statute, able and willing to act, the court will regulate his conduct, and even deprive him of all authority, where it has been judged necessary for the real interests of the infant (≈). By the institution, also, of a suit in chancery, in relation to the estate of an infant, to which he is made party, he becomes a ward of the court, as it is called; the effect of which will be to place him under the more immediate protection of the court, which will in that case take the direction of his estate, and appoint a guardian for his person only (a). And any person marrying a ward of court without the court's permission, will be guilty of contempt, punishable by commitment to prison (b). But an infant not possessed of property cannot be made a ward of court; nor will the court in general appoint a guardian for an infant so circumstanced (c); though to this there (x) Vide 3 Bl. Com. 426; Co. Litt. by Harg. 88; 2 Fonb. Tr. Eq. 228, note, 2nd edit.; De Manneville v. De Manneville, 10 Ves. 52. (y) 2 Fonb. Tr. Eq. 235. (z) Spence's Equitable Jurisdic tion of the Court of Chancery, vol. i. (a) M'Pherson on Infants, 105. 556. are certain exceptions; for under the Marriage Act of 4 Geo. IV. c. 76, it has authority to appoint one for the purpose of consenting to the marriage of any infant having no father, or unmarried mother, or other guardian; and in certain instances also to give its judicial sanction to the marriage, where the consent of the father, mother, or guardian, cannot be obtained (d): and by 3 & 4 Vict. c. 90, it may take any infant who has been convicted and suffered the punishment of felony, out of the control of his parents or other guardians (if it shall appear expedient); and assign the custody of him to such other persons as may be willing to be entrusted with the charge, and to provide for the infant's maintenance and education. 7. Guardianship ad litem; which is, where a person (usually the father or other ordinary guardian) is appointed by a court of justice to prosecute or defend for an infant in any suit to which he may be party-a practice to which we have already had occasion in the course of this chapter to refer (e). The ordinary guardian is empowered indeed under the late statute 13 & 14 Vict. c. 35, even without an express appointment for that purpose, to concur on behalf of the infant in stating a special case for the opinion of the court of chancery upon any question cognizable by that court, in which the infant, among other parties, may claim to be interested: or a special guardian (if need be) may be appointed for the purpose by the court. 8. Guardianship by custom; comprehending, first, the species that exist in copyhold; as to which we may remark that it belongs of common right to the next of blood to whom the copyhold cannot descend (f); though, by the special custom of particular manors, it is vested in (d) Vide sup. p. 259. (e) Vide sup. p. 309. See as to this species of guardianship, Watson v. Fraser, 8 Mee. & W. 660; Duchitt v. Satchwell, 12 Mee. & W. 779; Eades v. Booth, 3 D. & L. 770. (f) 2 Watk. Cop. 101; Co. Litt. by Harg. 88; Clench v. Cudmore, 3 Lev. 395; R. v. Wilby, 2 M. & S. 504; vide 11 Geo. 4 & 1 Will. 4, c. 65, s. 3-10. the lord or his nominee (g); and that it is an office which extends both to person and estate, unless the infant have other lands to which there is a guardian in socage; for then the custody of his person belongs to the latter only. It usually ceases at the age of fourteen. Secondly, the species of guardianship that is founded on the custom of particular cities and boroughs (h), of which the custom of London is the most remarkable. This, we are told, entitles the mayor and aldermen, in their Court of Orphans (i), to the custody, of the person lands and chattels of every infant whose parent was free of the city of London (at least if he also died within the city); and such custody lasts, in the case of males, till twenty-one; of females, till eighteen, or marriage. It is said, however, to be fallen into disuse (k). III. Lastly, as regards the rights and duties of guardians in general. 1. The legal custody of the person of an infant belongs in general to the guardian; who, if the child be detained from him, may sue a writ of habeas corpus, out of any of the superior courts, to have his ward brought before the court, and delivered over (if of tender age) to himself (1); and where the father is the guardian, he is entitled in general to this remedy, even as against the mother (m); (g) 2 Watk. Cop. 101; Co. Litt. by Harg. 88; 3 Salk. 177. (h) Co. Litt. 88 b. (i) As to this court, vide Pulling's Customs of London, p. 196. (k) M'Pherson on Infants, 48. In addition to the different species of guardianship above enumerated, Mr. Hargrave mentions that which takes place by appointment of the ecclesiastical court, to which Blackstone also makes some reference, vol. i. p. 461. But whether this court has any such jurisdiction, is a point that has been VOL. II. much controverted; vide Co. Litt. by Harg. 88 b, n.; R. v. Isley, 5 Ad. & El. 441. (1) See R. v. Isley, 5 Ad. & El. 441; R. v. De Manneville, 5 East, 221; Earl of Westmeath's case, Jac. 251; In re Preston, 17 L. J. (Q. B.) 21; Queen v. Edward Smith, in re Boreham, 22 L. J. (Q. B.) 116; Reg. v. Clarke (In re Alicia Race), 5 W. R. (Q. B.) 222. (m) Murray's case, 5 East, 223; Earl of Westmeath's case, Jac. 251; Ex parte M'Clellan, 1 Dowl. 81; R. Y though, on the other hand, the mother of an illegitimate child may claim the possession of it upon habeas corpus, in preference to the reputed father (n). A child, however, of age sufficiently mature to exercise a choice on such a subject, will in no case be delivered over upon habeas corpus to the legal guardian, not even to the father, but will be allowed to leave the court in freedom (0); and where an infant, of whatever age, is possessed of property, so as to fall within the jurisdiction of the court of chancery, that court will always interfere to protect it against a guardian (even though he be also the parent), whose conduct renders him grossly unfit for the office (p). 2. With respect to the property of the ward, a guardian in socage is said to have, not barely an authority over, but an actual estate in the land, as dominus pro tempore; and to have a right either to demise it, or to occupy it himself for the ward's benefit (q); and to be entitled, in his own name, to bring actions against trespassers (r); and the law appears to be the same with respect to a guardian by statute (s); but no guardian can aliene the ward's estate, except by way of lease during the ward's minority; and a demise for a longer period becomes void as soon as the period of guardianship determines (t). A guardian by appointment of the Lord Chancellor has, in some respects, less power over the ward's property; for he can receive of the profits of the infant's estate no more than the court of chancery v. Greenhill, 4 Ad. & El. 624. As to children within the age of seven years see, however, 2 & 3 Vict. c. 54; sup. p. 301. (n) R. v. Hopkins, 7 East, 579; Ex parte Ann Knee, 1 N. R. 148. (0) R. v. Smith, Stra. 982; R. v. Greenhill, ubi sup. (p) See Ex parte Skinner, 9 Moore, 278; De Manneville v. De Manneville, 5 East, 221; 10 Ves. 59; Ex parte M'Clellan, 1 Dowl. 81; Shelly v. Westbrook, Jac. 266; Wellesley v. Wellesley, 2 Bligh, N. (q) Plowd. 293; R. v. Sutton, 3 Ad. & El. 597. (r) Wade v. Baker, Lord Raym. 131; R. v. Sutton, ubi sup. (s) Bac. Ab. Leases, I. 9; R. v. Sutton, ubi sup. ; vide Roe v. Hodgson, 2 Wils. 129, 135. (t) Ibid. |