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under the order (as we have seen in a former chapter) is not released by any order of discharge in bankruptcy (e). The father is, however, entitled to appeal to quarter sessions from the order, upon entering into his recognizance to try the appeal and to pay such costs as shall be adjudged thereon, and upon otherwise complying with the prescribed conditions and regulations (f); and on the hearing of such appeal, the case is to be tried de novo.

Bastards, although their maintenance during childhood is thus provided for, labour under many disadvantages. For a bastard is, for legal purposes, filius nullius or filius populi (g); and hence is not entitled by law either to the name of his mother or to that of his father (h), although he may (if he choose) assume the surname of either, or in fact other surname (i). any A bastard cannot take property by the mere description of child of his putative parent, until he has in some way acquired the reputation of standing in that relation to him. In a will the term children prima facie means legitimate children, and an illegitimate child will not be permitted to take. But this rule is departed from where, from the circumstances or from the true construction of the will, it appears that the testator must have intended illegitimate children to take (k). With regard to the acquisition of property by inheritance, or under the Statute of Distribution, he is in a different position from others; for he can neither himself be heir or next of kin to any one, nor have any heir or next of kin except the issue of his own body. If, therefore, a bastard purchase land, though he may take in fee, so far as the

(e) Bankruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 10.

(f) 7 & 8 Vict. c. 101, s. 4; Summary Jurisdiction Acts, 1879 and 1884 (42 & 43 Vict. c. 49, ss. 31, 32; 47 & 48 Vict. c. 43); R. v. Shingler (1886), 17 Q. B. D. 49.

(g) Fortesc. de Leg. ch. 4.

(h) Co. Litt. 3 b; Wilkinson v. Adam (1812), 1 Ves. & B. 452.

(i) Falconer, Surnames, 1862, and Supplement, 1863; Doe dem. Luscomb v. Yates (1822), 5 B. & Ald. 544.

(k) Hill v. Crook (1873), L. R. 6 H. L. 265; Re Walker, [1897] 2 Ch. 238.

power of disposing of the same to others is concerned, it is not, while it remains in his own seisin, a fee in the sense of being descendible to heirs generally, but its descent is confined to the heirs of his own body (). If he die seised of such estate without having devised it, and without leaving any such heirs, it will escheat to the Crown or other lord of the fee. The Crown or lord respectively have, under the Intestates' Estates Act, 1884, a similar right to the undisposed of proceeds of sale of real estate directed by the will to be sold (m). The Crown is entitled also to the beneficial administration of the personal estate of a bastard who dies intestate and without issue, or any widow surviving him. The claim of the Crown to the real or personal estate of a bastard is not, however, strictly enforced; for the Crown's right will in general, upon the due petition in that behalf, be transferred to the nearest member of the bastard's reputed family (n).

There are some other points also, as to which a bastard is peculiarly circumstanced. Thus, he does not follow (as legitimate children do) his father's place of parochial settlement under the laws relating to the poor; but his primary settlement, if he was born before the 14th August, 1834, is in the parish where he was born (0); if he was born after that date, he takes the settlement of his mother till he attains the age of sixteen, and retains the settlement so taken until he acquires another (p). On the other hand, to authorize his marriage under twentyone, the consent of his father or mother is not required (9) ; but a license to marry may be granted to him, upon oath made that there is no person authorised to give such

(1) Idle v. Cooke (1705), Ld. Raym. 1152; 1 Prest. Est. 468.

(m) Att.-Gen. V. Anderson, [1896] 2 Ch. 596.

(n) Toller, Ex. 107; 59 Geo. 3, c. 94; 47 & 48 Vict. c. 71.

(0) Hard's Case (1697), Salk. 427.

(p) Poor Law Amendment Act, 1834, s. 71; Divided Parishes and Poor Law Amendment Act, 1876, s. 35.

(g) Priestley v. Hughes (1809), 11 East, 1.

consent (r). And though a father may in general by deed or will appoint a guardian for his infant child, he has no such privilege if the child be illegitimate.

On the other hand, the laws relative to incest, and to marriages within the prohibited degrees of consanguinity or affinity, apply to a bastard with equal force as to those who are born in wedlock; the principle of his being nullius filius having no effect in these particulars (s). And it may be stated generally, that, except in the several points above enumerated, the legal position of a bastard is the same with that of another man; and he is capable of being, by the transcendent power of Parliament, made legitimate for all purposes, even that of inheriting land, as was done by a statute of Richard II. in the case of John of Gaunt's children (t).

(r) Marriage Act, 1823, s. 14; Marriage Act, 1836, s. 12.

(*) R. v. Chafin (1702), 3 Salk. 66; Hains v. Jessell (1696), 1 Ld.

Raym. 68; The Queen v. Brighton
(1861), 1 B. & S. 447, 453.
(t) 4 Inst. 36.

CHAPTER IV.

OF GUARDIAN AND WARD.

THE fourth private relation is that of guardian and ward. And we shall consider, first, the legal condition of the ward; next, the different species of guardians; and, lastly, the rights and duties of guardians.

Infancy or

I. The legal condition of the ward. minority is the period of life, whether in males or females, which precedes the age of twenty-one, an age at which they are competent for all that the law requires them to do, and which is therefore designated as full age (a). Full age is gained on the day preceding the twenty-first anniversary of the infant's birth; and as in the computation of time the law for this purpose allows no fraction of a day, a child born on the evening of the 1st January, is of age on the morning of the 31st December in the twenty-first year afterwards (b).

[An infant has various special privileges, and is subject to various incapacities. He cannot be sued but under the protection, and with the benefit of the defence of his guardian (c), that is, of his guardian ad litem, appointed by the court for the purpose of the particular action; and, on the other hand, he may sue either by a guardian ad litem appointed by the court, or (what is much the most usual course) by his next friend or prochein amy, that is,

(a) 1 Hale, P. C. 28; Co. Litt. 171 b.

(b) Howard's Case (1700), 2 Salk. 625; 1 Ld. Rayni. 480; Fitz

Hugh v. Dennington (1704), 2 Ld.
Raym. 1096.

(c) Co. Litt. 135 b; Castledine v. Mundy (1832), 4 B. & Ad. 90.

[by any friend willing to undertake his cause (d).] It is also a privilege belonging to infants, that they lose nothing during their minority by non-claim of their rights; for though persons of full age are barred by their omission to take any step towards the recovery of their rights within a certain period of time, it is otherwise with respect to infants, who are not bound to claim upon a title or cause of action which first accrues to them while they are under age, until after the expiration of a period commencing from their attainment of majority (e). It is also laid down generally, that an infant can neither make any conveyance or purchase that will bind him (f); nor enter into a binding contract; nor be sworn as a juror (g); nor sit and vote in parliament (h); nor hold any public office of pecuniary trust, or of a judicial kind (¿); nor, in short, do any legal act. To this general incapacity, there are exceptions; and it will be proper here to advert to some of these. Thus, although an infant is generally under disability where he acts on his own account, yet he is under none when acting as agent for another person (k); for the person by whom he is appointed agent is (for that purpose) the best judge of his ability. [So an infant who has an advowson, that is, the perpetual right to present to a benefice, may present to the benefice when it becomes void (1). For the law in this case dispenses with one rule, in order to maintain another of far greater consequence; permitting the infant to present a clerk, who, if unfit, may be rejected by the bishop, rather than

(d) Co. Litt. ubi sup. ; Collins v. Brook (1859), 4 H. & N. 270.

(e) Co. Litt. 380 b; Limitation Act, 1623, s. 7; Real Property Limitation Act, 1833, s. 16; Real Property Limitation Act, 1874, s. 3; Civil Procedure Act, 1833, s. 4.

(f) Co. Litt. 171 b.

(g) Bac. Ab. Infancy, E.; 6 Geo. 4, c. 50, s. 1.

(h) Whitelock, ch. 50; 4 Inst. 47; 7 & 8 Will. 3, c. 25.

(i) Claridge v. Evelyn (1821), 5 B. & Ald. 81; Bac. ubi sup.

(k) Co. Litt. 52a; Re d'Angibau (1880), 15 Ch. D. 228, 246.

(7) Co. Litt. 89 a, note (1);

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