capable of holy orders; and though that were dispensed with, yet he was utterly disqualified from holding any dignity in the church; (k) but this doctrine seems now obselete; and in all other respects there is no distinction between a bastard and another man. *3 And really any other distinction but that of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring of his parent's crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted of for its equitable decisions, made bastards in some cases incapable even of a gift from their parents. (1) A bastard may, lastly, be made legitimate, and capable of inheriting by the transcendent power of an act of parliament, and not otherwise; (m) as was done in the case of John of Gant's bastard children, by a statute of Richard the Second. 29

k Fortesc. c. 40. 5 Rep. 58.

1 Cod. 6. 57. 5.

m 4 Inst. 36.

estate. 1 Wood. 397. 308. And so likewise in the case of personal estate, where a bastard dies intestate, and without issue, the king is entitled, and the ordinary of course grants administration to the patentee or grantee of the crown. Salk. 37. 3 P. Wms. 35. See H. Chitty's Law of Descents, 27, 8.

28) Bastards are not favoured in equity as legitimate children. The court will not supply the defect of a surrender of a copyhold in a conveyance or devise by a father to a natural child, as it will in favour of a legitimate child. Gilb. For. Rom. 256. 2 Ves. 582.

See farther concerning bastards, 2 vol. 247. and 506.

(29) The father of an infant legitimate child is entitled to the custody of it; but the mother of an illegitimate child in preference to the putative father, 5 East, 221. 1 Bos. & Pull. N. R. 148. 7 East, 579.; and if the putative father of a bastard child obtain possession of it by force or fraud, the court will order it to be restored on the application of the mother, 5 East, 224. n.; and see further as to who is entitled to the custody of the bastard, 2 Nol. P. L. 4 ed. 330 to 335. Chitty. But though he is considered filius nullius with respect to inheritances and successions, yet the law takes notice of his connection with his natural parents for some other purposes, as it prohibits him from forming an incestuous union by marriage; and it has been decided that if a bastard marries under age by license, he must have the consent of his putative father, guardian, or mother, according to the 26 Geo. Il c. 33. 1 T. R. 96.

In the case of Horner v. Liddiard, which was decided in the consistorial court in London in Trinity term 1799, the circumstances were these:

Miss Liddiard was a natural child, her father was dead, and he by his will had appointed her mother her guardian, but that circumstance was immaterial, as a putative father cannot appoint a guardian. Whilst she was under age she was married by license, with the consent of her mother, to Mr. Horner. The husband afterwards instituted this suit to have the marriage declared void. Sir William Scott admitted that bastards were so far within the marriage act, that if the marriage had been solemnised by license with the consent of a guardian of the court of chancery, the marriage would have been valid; but he decided, that neither an illegitimate father nor mo. ther were competent to give consent to a marriage by license, and that in the present case the marriage was therefore null and void. In delivering his judgment, the most learned judge was pleased to say; "I observe that the learned editor of the last edition of the Commentaries has laid it down, that it has been decided, that if a bastard marries under age by license, he must have the consent of his putative father, guardian, or mother, according to the statute." If the observation is to be understood according to this arrangement, I cannot agree that it has been so decided. For what guardian can be so interposed between the natural father and mother? If my construction of the marriage act in note 21 p. 438, is erroneous, then the word guardian, ought to have been placed after mother, and not before. But I meant only to state, that it had been decided by the court of king's bench, that bastards were to be considered as legitimate children under the marriage act. As the courts of law not only in settlement cases, but in all claims of inheritance, prosecutions for polygamy, and wherever the validity of a marriage can be questioned, are as competent to construe the marriage act as the ecclesiastical courts, notwithstanding the very able arguments adduced to support the judginent in Horner v. Liddiard, I trust I do not speak irreverently when I predict that the subject will undergo much further discussion and investigation before that judgment will be adopted by the temporal courts. See Dr. Croke's case of Horner v. Liddiard. Christian.

Also may be reckoned among his disabilities, that an estate limited to a bastard unborn, is void; though contra if the child were legitimate. Archbold.

Reeve's Dom. Relations, tit. Parent & Child, Comyn's Dig. same title.

* Co. Litt. 3 b 1 P. Wms. 529.

CHAP. XVII.

OF GUARDIAN AND WARD.'

THE only general private relation now remaining to be discussed, is that of guardian and ward; which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being only a temporary parent, that is, for so long a time as the ward is an infant, or under age. In examining this species of relationship, I shall first consider the different kinds of guardians, how they are appointed, and their power and duty; next, the different ages of persons, as defined by the law; and, lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship.

1. The guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was the committe of the person, the curator the committee of the estate. But this office was frequently united in the civil law; (a) as it is always in our law with regard to minors, though as to lunatics and idiots it is commonly kept distinct.

2

Of the several species of guardians, the first are guardians by nature; viz. the father and (in some cases) the mother of the child. [461] For, if an estate be left to an infant, the father is by common law the guardian, and must account to his child for the profits. (b) 3 And with regard to daughters, it seems by construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will assign a guardian to any woman-child under the age of sixteen; and, if none be so assigned, the mother shall in this case be guardian. (c) There are also guardians for nurture; (d) which are, of course, the father or mother, till the infant attains the age of fourteen years: (e) and in default of father or mother, the ordinary usually assigns some discreet person to take care of the infant's

5

a Ff. 26. 4. 1.

d Co. Litt. 88.

b Co. Litt. 88.
e Moor. 758. S Rep. 38.

c 3 Rep. 39.

(1) As to the law applicable to this chapter in general, see Co. Lit. 88. b.; Com. Dig. Guardian, id. Enfants; Bac. Ab. Guardian, and id. Infancy; Cruise Dig. Index, Guardian in Socage, and id. tit. Infant; Bridg. Ind. Guardian and Ward and Infant; Bingham on Infancy.

(2) See Co. Lit. 105. note 12.

(3) But an executor is not justified in paying to the father a legacy left to the child; and if he pays it to the father, and the father becomes insolvent, he may be compelled to pay it over again. i P. Wins. 285. Christian.

(4) See Bac. Ab. Guardian, A. 1. It has been considered, that the power of a father to ap point a guardian under the act 4 & 5 Ph. & M. c. 8. extends to natural children, 2 Stra. 1162; but according to 2 Bro. Ch. R. 583. it does not. However where the putative father by a will names guardians for his natural child, the court will in general appoint them to be so, without any reference to the master, unless the property be considerable. Id. ibid. 2 Cox, 46. Bac. Ab. Guardian, A. 1 Jac. & W. 106. 395. An appointment of a testamentary guardian by a mother is absolutely void. Vaughan, 180. 3 Atk. 519. A father's appointment by deed of a guardian may be revoked by will. Finch, 323. 1 Vern. 442. Any form of words indicative of the intent suffices. Swimb. p. 3. c. 12. 2 Fonbl. on eq. 5 ed. 246, 7. A guardian appointed by the father cannot delegate or continue the authority to another. Vaughan, 179. 2 Atk. 15. Nor is a copybolder within the act. 3 Lev. 395.

(5) See Bac. Ab. Guardian, A. 1. Co. Lit. 119. b. note 13.
VOL. I.
47

Chitty

6

personal estate, and to provide for his maintenance and education. (ƒ) Next are guardians in socage (an appellation which will be fully explained in the second book of these Commentaries), who are also called guardians by the common law. These take place only when the minor is entitled to some estate in lands, and then by the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend as, where the estate descended from his father, in this case his uncle by the mother's side cannot possibly inherit this estate, and therefore shall be the guardian. (g) For the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust. (h) The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who is the next to succeed in the inheritance, presuming that the next heir would take the best care of an estate to which he has a prospect of succeeding: and this they boast to be summa providentia." (i) But in the mean time they seem to have for

7

gotten, how much it is the guardian's interest to remove the incum[462] brance of his pupil's life from that estate for which he is supposed to have so great a regard. (k) And this affords Fortescue, (1) and sir Edward Coke, (m) an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession is "quasi agnum committere lupo, ad devorandum.” (n) These guardians in socage, like those for nature, continue only till the minor is fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose his own guardian. This he may do unless one be appointed by the father, by virtue of the statute 12 Car. II. c. 24. which, considering the imbecility of judgment in children of the age of fourteen, and the abolition of guardianship in chivalry (which lasted till the age of twentyone, and of which we shall speak hereafter) enacts, that any father, under age or of full age, may by deed or will dispose of the custody of his child, either born or unborn, to any person, except a popish recusant, either in possession or reversion, till such child attains the age of one-and-twenty years. These are called guardians, by statute or testamentary guardians.

8

f 2 Jones, 90. 2 Lev. 163.

g Litt. $123.

h Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliqued jus in ipsa haereditate clamare. Glany. 1. 7. c. 11.

i Ff. 26. 4. 1.

The Roman satyrist was fully aware of this danger, when be puts this private prayer into the mouth of a selfish guardian; -pupillum o utinam, quem proximus haeres Impello expungam

1 c. 44.

Pers. 1. 12.

m 1 Inst. 88.

n See Stat. Hibern. 14 Hen. III. This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiq. b. 1. c. 26) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardianship and right of succession might always be kept distinct. (Petit. Legg. At. l. 6, £. 7.)

(6) A widow is guardian in socage to her daughters until they are fourteen years old, as well of freehold as of copyhold, 10 East, 491. 2 M. & S. 504.; and by residing on the ward's estate for forty days gain a settlement in the parish, and cannot be removed from the possession of it at any time. Id. ibid. She has a right as such to elect whether she will let the estate, or occupy it for their benefit. Id. ibid. Such a guardian has not a mere office or authority, but an interest in the ward's estate: she may maintain trespass and ejectment; avow damage feasant, make admittance to copyhold and lease in her own name Id. ibid. Chitty.

(7) See objections to this rule, 2 P. W. 263. 9 Mod. 135. 3 Bro. P. C. 341. and Mr. Christian's observations in his edition in favour of the rule.

(8) By this statute, the father may dispose of the guardianship of any child unmarried under the age of twenty-one, by deed or will, executed in the presence of two or more witnesses, till such child attains the age of twenty-one, or for any less time. And the guardian so appointed has the tuition of the ward, and the inanagement of his estate and property.

There are also special guardians, by custom of London, and other places; (0) but they are particular exceptions, and do not fall under the general law.'

o Co. Litt. 88.

The mother cannot appoint a guardian under this act, Vaugh. 180. 3 Atk. 519.; nor can a guardian already appointed by the father. Vaugh. 179. 2 Atk. 15. A copyholder is not within the act. 3 Lev. 335.

A disposition of this nature by deed may be revoked by will, Finch, 323.; but not so if the deed contain a covenant not to revoke. 1 Vern. 442.

A will appointing a guardian for this purpose, need not be proved in the spiritual court. 1 Vent. 207.

No material form of words are necessary to create the appointment. Swinb. p. 3. c. 12. See 2 Fonbl. on Eq. 5 ed. 246, 7. notes. But the power of the guardian exists only during the time for which he is expressly appointed. Vaugh. 184.

Though under this act a testamentary guardian has the custody of the infant's real estate, a lease granted by him of such real estate is absolutely void. 2 Wils. 129 135.

The marriage of the infant before he becomes twenty-one years of age, does not determine the guardianship. 3 Atk. 625. Chitty.

(9) The king is also an universal guardian of infants, who delegates it to the lord chancellor. See 2 Fonbl. on Eq. 5 ed. 225. Chit. Prerog. Regis. 155.

By virtue of this power the chancellor may appoint guardians to such infants as are without them, Bac. Ab. Guardians, c. 2 Fonbl. 5 ed. 225. And in a case where the infant, of the age of seventeen, had appointed a guardian by deed, it was decided that the chancellor had still a power to appoint a guardian, 4 Madd. 462.; and guardians at common law may be removed or compelled to give security, if there appear any danger of their abusing the person or estate of the ward, 3 Cha. Ca. 237. Style, 456. Hard. 96. 1 Sid. 424. 3 Salk. 177.; but it has been considered that a statute guardian cannot be wholly removed, 3 Salk. 178. 1 P. W. 698. 2 P. W. 112. 2 Fonbl. 22. and guardians are appointed by him where such appointment is necessary to protect the infant's general interest, or to sustain a suit, or to consent to the infant's marriage, 1 Madd 213.; but he never appoints a guardian to a woman after marriage. 1 Ves. 157. A guardian cannot be otherwise appointed in chancery than by bringing the infant into court, or his praying a commission to have a guardian assigned him. 1 Eq. Ca. Ab. 260. One of the six clerks may be appointed. 2 Cha. Ca. 164. Nels. Rep. 44. As to when the court of chancery may appoint a guardian in the place of another, see post. And see the jurisdiction of court of chancery in general on this subject. 2 Fonbl. 226. n. a. The infant himself may also appoint a guardian, and this right arises only when from a defect in the law (or rather in the execution of it), the infant finds himself wholly unprovided with a guardian. This may happen either before fourteen, when the infant has no such property as attracts a guardianship by tenure, and the father is dead without having executed his power of appointment, and there is no mother; or after fourteen, when the custody of the guardian in socage terminates, and there is no appointment by the father under the 12 Car. II. Lord Coke only takes notice of such election where the infant is under fourteen; and as to this, omits to state how or before whom it should be made. See 1 Inst. 87. b. Nor does this defect seem supplied by any prior or contemporary writer. As to a guardian under fourteen, it appears from the ending of guardianship in socage at that age, as if the common law deemed a guardian afterwards unnecessary. However, since the 12 Car. II. c. 24. it has been usual in defect of an appointment under the statute, to allow the infant to elect one for himself; and this practice appears to have prevailed even in some degree before the Restoration such election is said to be frequently made before a judge on the circuit, 1 Ves. 375.; but this form does not seem essential.

:

The late lord Baltimore, when he was turned of eighteen, having no testamentary guardian, and being under the necessity of having ne for special purposes, relative to his proprietary government of Maryland, named a guardian by deed, a mode adopted by the advice of counsel. It seems in fact as if there was no prescribed form of an infant's electing a guardian after fourteen, any more than there is before; and therefore election by parol, though unsolemn, might be legally sufficient. The deficiency in precedents on this occasion is easily accounted for, this kind of guardianship being of very late origin, unnoticed as it seems by any writer before Coke, except Swinburn. (Testam. edit. 1590. 97. b.) And there being yet no cases in print to explain the powers incident to it, or whether the infant may change a guardian so constituted by himself, Coke, though professing to enumerate the different sorts of guardianship, omits this in one case, whence perhaps it may be conjectured, that in his time it was in strictness scarcely recognised as legal. 1 Inst. 88. b. in notes. For these observations, see Toml. Law Dict. tit. Guardian. Though an infant thas appoint a guardian, yet it does not preclude the court of chancery from appointing another. 4 Mad. 462.

Guardians are also appointed ad litem. All courts of justice have a power to assign a guardian to an infant to sue or defend actions, if the infant comes into court and desires it; or a judge at his chambers, at the desire of the infant, may assign a person named by him to be his guardian. F. N. B. 27. 1 Inst. 88. b. n. 16. 135. b. 1. See post.

As to who is usually appointed, and the mode, &c. of appointing a prochein amy or guardian to . an infant in the common law courts, see Tidd. Prac. 8 ed. 95, 96. Chitty

The power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father and child; and therefore I shall not repeat them; 10 but shall only add, that the guardian, when the ward comes of age,

is bound to give him an account of all that he has transacted on his [463] behalf, and must answer for all losses by his wilful default or negli

gence." In order therefore to prevent disagreeable contests with

(10) The learned author has already shewn the general object of the appointment of these guardians; it may be further observed as to the guardian's duty, that he can do nothing but for the profit and beneât of the infant, nor intermeddle with any thing but of what he may render an ac

count.

Thus he cannot present to a church, Cro. Jac. 99. Co. Lit. 89. a. 3 Atk. 710.; but quære whether the court will not control the presentation by the infant, if improperly obtained without the concurrence of the guardian. See 1 Fonbl. on Eq. 5 ed. 84. Bing. on Infancy, 76.

A guardian in socage of a manor may gant copyhold estates in his own name, and which will bind the heir, Cro. J. 55. 99. Poph. 127. ; and he may grant copyholds in reversion. Bac. Ab. Guardian, G. Leases made by him are good if they expire within the infant's minority; but though they expire afterwards, they are not absolutely void, but merely voidable by the infant. Bro. Gard. 70. Cro. Jac. 55. 98.

A prohibition of waste, as well as an action of waste, will lie against a guardian in socage, for a voluntary, but not for permissive waste, or waste done by a stranger. 2 Inst. 305.

A guardian for nurture cannot make leases for years, either in his own name or that of the infant, for he hath only the care of the person. Bingh. on Inf. 151.

A partition made by the guardian shall bind the infant, if equal. 2 Roll. Ab. 256.

A guardian ought to sell all moveables in a reasonable time, and turn them into land or money, except the minor is near of age, and may want such goods himself; and he will be liable to pay interest for money in his hands which might have been put out at interest, in which case it will be presumed the guardian made use of it himself. 3 Salk. 177.

A guardian cannot change the nature of the ward's estate, unless by some act manifestly for the ward's advantage, or by leave of the court of chancery. Amb. 370. 2P. Wms. 278. 1 Vern.

435.

A guardian, by taking a bond for arrears of rent, makes it his own debt, and is liable for it to the infant. 2 Ch. Rep. 97.

A guardian may pay out of the profits of the estate the interest of any real incumbrances, as a judgment, and the principal of a mortgage, that are direct and immediate charge on the land, but not any other real incumbrances. I Esq. Ab. 261. 2 Vern. 193. 606.

But where a guardian borrowed money to pay off incumbrances on an infant's estate, and promised to give the lender security, but died before it was done, though the lender's money was duly applied, the court would not decree him satisfaction out of the infant's estate. 2 Vern. 280. However, if the sum disbursed exceed the profits of the estate, for so much A shall have an aç count, as for money due to the guardian, and it shall be raised out of the infant's estate. Id. If the guardian buys off an incumbrance of 600l. with 100%. he cannot charge the infant 600l. 2 Ch. Ca. 245.

Guardians appointed ad litem, may acknowledge satisfaction upon the record for a debt recovered at law for the infant. T. T. 23. Car. 2. B. R.

When the particular measure proposed is doubtful in its tendency, the more prudent course for guardians to pursue, is to seek the indemnity of a court of equity, which will direct one of its officers to inquire and report whether the measure be, or be not, in its probable effect beneficial to the infant. 2 Vern. 224. Bingh. 155.

The guardian cannot claim out of the estate any compensation for his trouble. 2 Ves. 547. Where there has been some doubt of the sufficiency of a guardian in socage, the court of chancery has obliged him to give security. 2 Mod. 177.

Á guardian may be ordered to enter into security by recognizance not to suffer the infant to marry while in his custody, and to permit other relations to visit her, &c. 2 Lev. 128. 2 Ch. Rep.

237.

The answer in chancery of an infant by his guardian, cannot be read against him on a trial at faw, 2 Ventr. 72. Carth. 79.; for the law, out of tenderness to infants, will not permit them to be prejudiced by the oath of a guardian, Gilb. Ev. 51. Vent. 72. 3 Mod. 258. 2 Stark. 366.; but it seems that the answer of the guardian for the infant may afterwards be used in evidence against himself for it is the answer of the guardian, and not of the infant. 3 P. Wms. 237.

If the ward be taken away from the guardian, the statute of Westm. 2. c. 35. gives him a writ of ravishment of ward, in which he recovers the body of the ward, and not damages, as at common law, by the action of trespass. 2 Inst. 90. 438. 9 Co. 72.

Guardians of a female under age are justified in stopping her elopement, and in detaining her clothes if she has cloped; and a carrier by whom she has sent them may deliver them up to the guardians. 1 Carr. Rep. 101. Chitty.

(11) This rule, that the guardian is compellable to account only when the infant comes of age. or until she marries, is applicable only to testamentary or other guardians not in socage, and exsts only in a court of law; for under the general protection afforded to infants by the court of