« EelmineJätka »
of his children as are infants and unmarried at his death, or born posthumously, to any person he pleases, and this as against all persons claiming to be guardians in socage or otherwise. The guardian thus appointed has the custody both of the person of the ward (.x) and also of his or her estate, both real and personal (y). But the statute having made no mention of the mother, she therefore remained incapable of appointing a guardian to her children (2). Her incapacity in this respect has, to some extent, been removed by the Guardianship of Infants Act, 1886, already mentioned (a).
5. Guardianship by election, which is a species of guardianship recognised by the law, though not of frequent 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 the election, at whatever age it is made, in no case superseding the authority of the court to interfere for the infant's protection, this kind of guardianship is now almost wholly disused (6).
6. Guardianship by appointment of the High Court of Justice.—This species of guardianship is of comparatively modern origin ; for, it being found expedient to provide for cases in which the father failed to exercise his statutory power, the court, on an application made to it on behalf of an infant possessed of property, appointed a guardian
(2) Re Andrews (1873), L. R. 8 Q. B. 153.
(y) Helyar v. Beckett,  1 Ch. 391.
(z) Ex parte Edwards (1747), 3 Atk. 519,
(a) 49 & 50 Vict. c. 27 ; vide supra, p. 340.
(1) Co. Litt. by Harg. 88; Curtis v. Rippon (1819), 4 Madd. 462.
for the protection both of the person and of the property of the infant (c). And indeed this jurisdiction would be exercised, if sufficient reason appeared, notwithstanding the existence of a guardian in socage (d). And the Court interfered in favour even of bastards ; so that where the father had named a guardian by will for his bastard child (which he had no authority under the statute to do) (e), the court in general appointed that person the guardian, confirming the putative father's appointment (f). So, also, where there had been a guardian appointed under the statute, the court would regulate his conduct, and even deprive him of all authority where necessary for the real interests of the infant (g). And by the institution of a suit as to the estate of an infant, and even by a payment into court to the credit of the account of an infant in an administration action, though the infant is not a party, the infant becomes a ward of the court (h). Any person marrying a ward, without permission, is guilty of a contempt of court, and is punishable by commitment to prison ().
But an infant not possessed of property will not, in general, be made a ward ; nor will the court in general appoint a guardian for an infant so circumstanced. This is due, however, not to a want of jurisdiction in the court, but merely to the difficulty of exercising such jurisdiction in the absence of property ; and the court has in proper cases repeatedly appointed guardians of infants not possessed of any property (k). Statutory powers of
(c) Co. Litt. 88 b, Hargrave's note 16; 3 Bl. Com. 427; 2 Fonb. Tr. Ea. 228 n.
(d) 2 Fonb. Tr. Eq. 235.
(e) Sleeman v. Wilson (1871), L. R. 13 Eq. 36.
(f) Peckham v. Peckham (1816), 2 Cox, 46.
(9) Spence, Equitable Jurisdiction, vol. i. p. 613.
(h) De Pereda v. De Mancha (1881), 19 Ch. D. 451.
(i) Herbert's Care (1731), 3 P. Wms. 116; Re Martindale, (1894) 3 Ch. 193.
(k) Re Fynn (1848), 2 De G. & Sm. 457 ; Re Spence (1849), 2 Ph. 247; Re McGrath, (1893] 1 Ch. 143.
appointing guardians have been conferred on the court in particular cases. Thus by the Infant Felons Act, 1810, the court may take any infant (whether possessed of property or not) who has been convicted as a felon, out of the control of his parent or other guardian, and may assign the custody of him to any other person willing to be entrusted with his charge, and able to provide for his maintenance and education. By the Criminal Law Amendment Act, 1885, s. 12, the custody of a girl under sixteen years of age may, for the reasons mentioned in the Act, be taken away from her parents and committed to any person willing to have the charge of her. Under the Prevention of Cruelty to Children Act, 1894, ss. 6, 7, the court may (for good cause) take away from the father, or step-father, or other quasi-guardian, and commit to some other fit person, the custody or care of a child under sixteen years of age. And, apart from all statutory provisions, the court has power in extreme cases to take away from a guardian and even from a father the custody of his child, and to commit it to fit and proper persons, when such a course for the benefit of the child (1).
7. Guardianship ad litem. This is where a person (usually the father or other ordinary guardian) is appointed by any court of justice to prosecute, or more commonly to defend, on behalf of an infant in any action or litigious proceeding therein pending, to which such infant may be party ; a practice to which we have already had occasion to refer in the course of this chapter.
8. Guardianship by custom.—This species of guardianship is described in the books as being of two kinds : first, that which exists in lands of copyhold tenure, and which, of common right, belongs to the next of blood to whom the copyhold cannot descend, though, by special custom,
be claimed by the lord of the manor or his nominee (m); and, secondly, that which is founded on the custom of London, which entitled the mayor and aldermen, in their Court of Orphans, 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. Such custody lasted, in the case of males, till twenty-one, and in the case of females, till eighteen or marriage ; but this custom (with other like customs in certain other municipal places) is now fallen
(1) Shelley v. Westbrook (1822), Jacob, 266 ; Wellesley v. Beaufort
(1827), 2 Russ. 21 ; Re Besant
in disuse (n).
III. The rights and duties of guardians.-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 out a writ of habeas corpus, to have his ward brought before the court, and delivered over (if of tender age) to himself (o). Where the father is the guardian, he is entitled in general to this remedy, even as against -the mother (p), though, on the other hand, the mother of an illegitimate child may claim the possession of it upon habeus corpus, in preference to the reputed father (9). A child, however, who is of an age sufficiently mature to exercise a choice on the subject, will in no case be delivered over upon lubeas corpus to its legal guardian, not even to the father, but will be allowed to leave the court in
This rule is peculiar to applications by corpus,
the foundation of which is that some person is being detained against his will ; and the law recognises and protects the right of the father to the
freedom (1). habeas
(m) 2 Watk. Cop. 101 ; Co. Litt. by Harg. 88; 3 Salk. 177.
(n) Co. Litt. 88 b; Pulling, Customs of London, kinson v. Milex (1665), 1 Sid. 250 ;
196 ; Wil
(1857), 7 El. & Bl. 186; R. v. Barnardo (1890), 24 Q. B. D. 283.
(p) R. v. De Vannerille (1804), 5 East, 223; R. v. Greenhill (1836), 4 A. & E. 624.
(9) Ex parte Anne K'nee (1804), 1 Bos. & P. 149.
(r) R. v. Clarke (1857), 7 El. & Bl. 186.
(0) Earl og Westmeath', Case (1821), Jacob, 251 ; R. v. Clarke
control and custody of his infant children, even after they have attained years of discretion (s). The guardian may not, unless by the leave of the court, take his ward out of the jurisdiction of the court (t).
2. With respect to the property of the ward, a guardian in socage is said to have, not barely an authority over, but the legal possession of the land as dominus pro tempore, and therefore he has a right either to demise it, or to occupy it himself for the ward's benefit (u); and he is entitled, in his own name, to bring actions against trespassers (w). And a testamentary guardian is equally entitled to possession of the infant's land (y). But no guardian can (apart from the statute) aliene the ward's estate, except by way of lease during the ward's minority ; and a demise for a longer period becomes void, or at any rate voidable at the ward's option, as soon as the period of guardianship determines (a). A guardian by appointment of the court has, in some respects, even less power over the ward's property, for he can receive of the profits of the infant's estate no more than the court shall think fit to allow him for the infant's maintenance ; and such guardian can grant no leases except with the sanction of the court, though, on the other hand, such sanction will, under the Infants' Property Act, 1830, enable him to make a lease that will bind the infant even after he attains twenty-one, or to surrender, with a view to the renewal thereof, a lease vested in the infant (b). Further powers of selling, leasing and otherwise dealing with the real estate of infants have been given by the Settled Land Acts, 1882 to 1890, under which, when a person who is in his own right entitled in
(8) Re Agar Ellis (1883), 24 Ch. D. 317.
(t) Elliott v. Lambert (1884), 28 Ch. D. 186.
(u) Plowd. 293; R. v. Sutton (1835), 3 A. & E. 597.
(2) Wade v. Baker (1697), Lord Raym. 131.
(y) Helyar v. Beckett,  1 Ch. 391.
(a) Bac. Ab. Leases, I. 9; Roe v. Hodgson (1750), 2 Wils. 129, 135.
(b) 11 Geo. 4 & 1 Will. 4, c. 65, s. 17 ; Re Griffiths (1885), 29 Ch. 1). 248.