The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface By the American Editor.
• A Memoir of Sir William Blackstone,
• Introduction. of the Study, Nature, and Extent of the Laws of England.
• Section I.: On the Study of the Law. †
• Section II.: Of the Nature of Laws In General.
• Section III.: Of the Laws of England.
• Section IV.: Of the Countries Subject to the Laws of England.
• Commentaries On the Laws of England.
• Book the First. of the Rights of Persons.
• Chapter I.: Of the Absolute Rights of Individuals.
• Chapter II.: Of the Parliament.
• Chapter III.: Of the King, and His Title.
• Chapter IV.: Of the King’s Royal Family.
• Chapter V.: Of the Councils Belonging to the King.
• Chapter VI.: Of the King’s Duties.
• Chapter VII.: Of the King’s Prerogative.
• Chapter VIII.: Of the King’s Revenue.
• Chapter IX.: Of Subordinate Magistrates.
• Chapter X.: Of the People, Whether Aliens, Denizens, Or Natives.
• Chapter XI.: Of the Clergy.
• Chapter XII.: Of the Civil State.
• Chapter XIII.: Of the Military and Maritime States.
• Chapter XIV.: Of Master and Servant.
• Chapter XV.: Of Husband and Wife.
• Chapter XVI.: Of Parent and Child.
• Chapter XVII.: Of Guardian and Ward.
• Chapter XVIII.: Of Corporations.
• Book the Second. of the Rights of Things.
• Chapter I.: Of Property, In General.
• Chapter II.: Of Real Property; And, First, of Corporeal Hereditaments
• Chapter III.: Of Incorporeal Hereditaments.
• Chapter IV.: Of the Feodal System.
• Chapter V.: Of the Ancient English Tenures
• Chapter VI.: Of the Modern English Tenures.
• Chapter VII.: Of Freehold Estates of Inheritance.
• Chapter VIII.: Of Freeholds, Not of Inheritance.
• Chapter IX.: Of Estates Less Than Freehold.
• Chapter X.: Of Estates Upon Condition.
• Chapter XI.: Estates In Possession, Remainder, and Reversion.
• Chapter XII.: Of Estates In Severalty, Joint-tenancy, Coparcenary, and Common.
• Chapter XIII.: Of the Title to Things Real, In General.
• Chapter XIV.: Of Title By Descent.
• Chapter XV.: Of Title By Purchase and I. By Escheat.
• Chapter XVI.: II. Of Title By Occupancy.
• Chapter XVII.: III. Of Title By Prescription.
• Chapter XVIII.: IV. Of Title By Forfeiture.
• Chapter XIX.: V. Of Title By Alienation.
• Chapter XX.: Of Alienation By Deed.
• Chapter XXI.: Of Alienation By Matter of Record.
• Chapter XXII.: Of Alienation By Special Custom.
• Chapter XXIII.: Of Alienation By Devise.
• Chapter XXIV.: Of Things Personal.
• Chapter XXV.: Of Property In Things Personal.
• Chapter XXVI.: Of Title to Things Personal By Occupancy.
• Chapter XXVII.: Of Title By Prerogative and Forfeiture.
• Chapter XXVIII.: Of Title By Custom.
• Chapter XXIX.: Of Title By Succession, Marriage, and Judgment.
• Chapter XXX.: Of Title By Gift, Grant, and Contract.
• Chapter XXXI.: Of Title By Bankruptcy.
• Chapter XXXII.: Of Title By Testament, and Administration.
• Appendix.
• No. I.: Vetus Carta Feoffamenti.
• No. II.: Modern Conveyance By Lease and Release.
• No. III.: An Obligation, Or Bond, With Condition For the Payment of Money.
• No. IV.: A Fine of Lands Sur Cognizance De Droit, Come Ceo, &c.
• No. V.: A Common Recovery of Lands With * Double Voucher.

CHAPTER XVII.

OF GUARDIAN AND WARD.

The only general private relation, now remaining to be discussed, is that of guardian and ward;1 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 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 committee 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.

**461]Of the several species of guardians, the first are guardians by nature: viz. the father, and, in some cases, the mother of the child. 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)2 And, with regard to daughters, it seems by construction of statute 4 & 5 Ph. and 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)3 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 persons to take care of the infant’s personal estate, and to provide for his maintenance and education.(f)4 Next are guardians in socage,5 (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 to 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 forgotten, how much it is the *[*462guardian’s interest to remove the encumbrance of his pupil’s life from that estate for which he is supposed to have so great a regard.(k) And this affords Fortescue,(l) 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)6 These guardians in socage, like those for nurture, 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 twenty-one, 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.7 These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London, and other places;(o) but they are particular exceptions, and do not fall under the general law.8

The power and reciprocal duty of a guardian and ward are the same, protempore, as that of a father and child; and therefore I shall not repeat them, but shall only add, that the guardian, when the ward comes of age, is bound to give *[*463him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence.9 In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice of many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under its direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the court will check and punish him; nay, sometimes will proceed to the removal of him, and appoint another in his stead.(p)10

2. Let us next consider the ward or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twenty-one is at his own disposal, and may aliene his lands, goods, and chattels A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twenty-one years, which age is completed on the day preceding the anniversary of a person’s birth,(q)11 who till that time is an infant, and so styled in law. Among the ancient Greeks and Romans, women were never *[*464of age, but subject to perpetual guardianship,(r) unless when married, “nisi convenissent in manum viri:”(s) and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty-five years.(t) Thus by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; both probably copying from the old Saxon constitutions on the continent, which extended the age of minority “ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt;”(u)(v) but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty; and in Holland at twenty-five.

3. Infants have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise:(w)12 but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant’s cause, and it frequently happens, that an infant, by his prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases an infant of the age of fourteen years may be capitally punished for any capital offence:(x) but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima facie innocent; yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or **465]discretion.(y) And Sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and in such cases the maxim of law is, that malitia supplet ætatem. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges.(z)

With regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract that will bind him. But still to all these rules there are some exceptions: part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint.(a) Also it is generally true, that an infant can do no legal act: yet an infant, who has an advowson, may present to the benefice when it becomes void.(b) For the law in this case dispenses with one rule, in order to maintain others of far **466]greater consequence: it permits an infant to present a clerk, who, if unfit, may be rejected by the bishop, rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement.(c) It is, further, generally true, that an infant, under twenty-one, can make no deed but what is afterwards voidable: yet in some cases(d) he may bind himself apprentice by deed indented or indentures, for seven years; and(e) he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him:13 yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries;14 and likewise for his good teaching and instruction whereby he may profit himself afterwards.(f) And thus much, at present, for the privileges and disabilities of infants.15

[1 ] The equity books supply the practical details of this title, particularly 2 Fonbl. Tr. Eq. 236; Maddock’s Prin. and Prac.; and Mr. Hargrave’s notes 63, 71, on pa. 88, Co. Litt., exhaust the learning upon the title. The same title occurring in Com. Dig. and Bac. Abr. may be consulted, and also in Tomlin’s Law Dictionary.—Chitty.

[(a) ]Ff. 26, 4, 1.

[(b) ] Co. Litt. 88.

[2 ] 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. 1 P. Wms. 285.—Christian.

This guardianship confers no right to intermeddle with the property of the infant, but is a mere personal right in the father or other ancestor to the custody of the person of his heir apparent or presumptive until attaining twenty-one years of age. See 5 Mod. 224. Co. Litt. 88, n. 63, 71.—Hargrave.

Mr. Francis Hargrave, the learned annotator on Co. Litt., holds that the term natural guardian or guardian by nature, when not applied to an heir-apparent, signifies only that nature points out the parent and the proper guardian where positive law is silent.—Stephens.

[(c) ] 3 Rep. 39.

[3 ] See Bac. Abr. Guardian, A. 1. It has been considered that the power of a father to appoint a guardian under the act 4 & 5 Ph. and 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. Abr. Guardian, A. 1 Jac. and 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. Swinb. p. 3, c. 12. 2 Fonbl. on Eq. 5 ed. 246, 247. A guardian appointed by the father cannot delegate or continue the authority to another. Vaughan, 179. 2 Atk. 15. Nor is a copyholder within the act. 3 Lev. 395.—Chitty.

[(d) ] Co. Litt. 88.

[(e) ] Moor, 733. 3 Rep. 38.

[(f) ] 2 Jones, 90. 2 Lev. 163.

[4 ] It might be questionable whether the ordinary would be permitted to interfere further than to appoint ad litem. 3 Atkins, 631. Burr. 1436. For, where a legitimate child, even at the breast, is withheld from the custody of the father, habeas corpus may be brought. The King vs. De Manneville, 5 East, 221. See also 1 Bl. R. 386, and 4 J. B. Moore, 366.

But of an illegitimate child the mother appears to be the natural guardian. 4 Taunt. 498, ex parte Knee, 1 N. R. 148. And habeas corpus lies at her instance. See The King vs. Hopkins, 7 East, 579. 5 id. 224, n. Also 5 T. R. 278.

The guardian upon record is liable to the costs of the suit. 2 Est. 473.—Chitty.

This power of the ecclesiastical court to appoint guardians is questionable. Lord Hardwicke expressly denied it; and lord Mansfield seems to have considered it as limited to the appointment of a guardian ad litem, where an infant was a party to a suit in the court. 3 Atkins, 631. 3 Burr. 1436.—Coleridge.

The guardianship by nurture, like that by nature, has no reference to the infant’s property, but relates merely to his person.—Kerr. Kline vs. Beebe, 6 Conn. 494. Perkins vs. Dyer, 6 Geo. 401.—Sharswood.

[5 ] 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 gains 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.

[(g) ] Litt. 123.

[(h) ]Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hæreditate clamare. Glanv. l. 7, c. 11.

[(i) ]Ff. 26, 4, 1.

[(k) ] The Roman satirist was fully aware of this danger when he puts this private prayer into the mouth of a selfish guardian:—

• — pupillum o utinam, quem proximus hæres
• Impello, expungam.
• Pers. 1, 12.

[(l) ] C. 44.

[(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. Att. l. 6, t. 7.

[6 ] Lord chancellor Macclesfield has vehemently condemned the rule of our law, that the next of kin, to whom the land cannot descend, is to be the guardian in socage; and has declared that “it is not grounded upon reason, but prevailed in barbarous times, before the nation was civilized.” 2 P. Wms. 262. But, as the law has placed the custody of the infant under the care of one who is just as likely to be in a near degree of kindred as the heir,—one who probably will have the same affection for his person, without having any interest in even wishing his death, and therefore removed from all suspicion, however ill founded,—I cannot but think there is more wisdom in placing the infant under the guardianship of such a relation than under that of the next heir.

A socage guardian can only be where the infant takes lands by descent. If he has lands by descent both ex parte paterna and ex parte materna, then the next of kin on each side shall respectively be guardians by socage of these lands; and of these two claimants the first occupant shall retain the custody of the infant’s person. See Mr. Hargrave’s notes to Co. Litt. 88, b., where these different kinds of guardianship are with great learning and perspicuity discriminated and discussed.—Christian.

[7 ] 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 management of his estate and property.

A father cannot appoint guardians under this statute to a natural child; but where he has named guardians by his will to an illegitimate child, the court of chancery will appoint the same persons guardians, without any reference to a master for his approbation. 2 Bro. 583.—Christian.

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. 395.

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 is necessary to create the appointment. Swinb. p. 3, c. 12. See 2 Fonbl. on Eq. 5 ed. 246, 247, 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.

[(o) ] Co. Litt. 88.

[8 ] The king is also a 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. Abr. 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. Wms. 698. 2 P. Wms. 112. 2 Fonbl. 232;) 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. Abr. 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 one 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 thus 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.

On the subject of guardians of different kinds, I refer the student to a series of notes by Mr. Hargrave on the passage of Co. Litt. so often referred to in the margin, as well as to a note by Mr. Ames, on Fortescue, c. 44, and Fonblanque’s Treat. of Equity, b. 11, p. 2, ch. 2, s. 2. The guardianship to which it is practically the most important to attend is that by testament, of which a sufficiently accurate outline is drawn in the text. I will mention only one or two circumstances that seem to have been omitted. In the first place, the statute empowers fathers only to make the appointment: this was probably an unintentional omission; but the consequence is, that, where a mother is the surviving parent, the children, upon her death, will be left to find guardians according to the provisions of the common law. In this case, where none other can be found, the jurisdiction of the chancellor arises on the part of the crown to protect the infant subject, and he will delegate the care to some proper person. As to the origin of this jurisdiction, see vol. 3, p. 427.

The effect of the appointment by testament is rather more extensive than the text implies, because the statute annexes to the office the custody and management of the infant’s real and personal estate, and empowers the guardian to bring all such actions relating thereto as a guardian in socage might. On the other hand, this appointment, as stated in the text, does not so far supersede the general duty and power of the chancellor, as delegate of the crown, to protect infants, but that he may interfere in cases of gross misconduct, or legal incapacity, such as that of lunacy or bankruptcy, to control or even to remove him.—Coleridge.

The jurisdiction of the court of chancery, whatever may have been its origin, is non firmly established and beyond the reach of controversy,—it being a settled maxim that the sovereign is the universal guardian of all the infants in the kingdom. This court, therefore, will appoint a suitable guardian for an infant where there is no other or no other who will or can act; for if there are testamentary guardians the court has no jurisdiction to do so. It will also in general abstain from interference unless the infant has property,—not from any want of jurisdiction, but from the want of means to exercise its authority with effect. When, however, guardians are appointed, and their nomination is entirely a matter of discretion, they are treated as officers of the court and held responsible accordingly.

The court of chancery will not only remove guardians appointed by its own authority, but it will also remove guardians at the common law, and even testamentary or statute guardians, whenever sufficient cause can be shown for so doing. For guardianship is always looked upon by the courts of equity as a delegated trust for the benefit of the infant; and in case, therefore, any guardian abuses his trust, the court will check and punish him, nay, sometimes will proceed to the removal of him, and appoint another in his stead. The court will sometimes also require security to be given by the guardian, and, on the other hand, will assist him in the performance of his duties, as well in obtaining the custody of the person of the ward as otherwise.

The jurisdiction of the court of chancery extends to the care of the person of the infant so far as is necessary for his protection and education, and to the care of his property, for its management and preservation and proper application for his maintenance. It is upon the former ground that the court interferes with the ordinary rights of parents as guardians by nature or by nurture; for whenever a father is guilty of gross ill treatment of or cruelty to his children, or is in constant habits of drunkenness and blasphemy or low and gross debauchery, or professes atheistical or irreligious principles, or his domestic associations are such as tend to the corruption and contamination of his children, the court will interfere and deprive him of the custody of the infants, appointing at the same time a suitable person to act as guardian and superintend their education. And this interference may be obtained on the petition of the infant himself, or of any of his friends or relatives: nay, a mere stranger may at any time set the machinery of the court in motion. In most instances, however, its jurisdiction arises from a suit being actually pending relative to the person or property of the infant; and in such cases, although not under the care of any guardian appointed by the court, the infant is treated as a ward.

And a ward in chancery is in all cases under the special protection of the court; for no act can be done affecting the minor’s person, property, or estate unless under its express or implicit direction, every act done without such direction being considered a contempt, exposing the offender to be attached and imprisoned. Thus, it is a contempt to conceal or withdraw the person of the infant from the proper custody, or to disobey any order of the court relative to its maintenance or education, or to marry the infant without the approbation of the court. For the court, in approving a person to be guardian, usually gives him express direction how to exercise the powers which it has conferred; prescribes the residence and settles a scheme for the education of the infant, and regulates, if necessary, his choice of a profession or trade; approves or prohibits the minor’s marriage; and performs all the other duties of guardians by nature or for nurture. With respect to the property of the ward, the court not only superintends its management during the owner’s minority, but directs a proper settlement on the marriage of its ward; and this protection is not always removed upon the minor’s attaining twenty-one, but is, for some purposes, continued afterwards, especially with regard to the marriage of female wards. In these and other respects, therefore, guardians appointed by the court of chancery have extensive delegated powers,—this species of guardianship being one far more capable of adaptation to the various requirements of modern society, the intentions of testators, the wants and wishes of the infants themselves, and the different kinds of property which may call for administrative care, than all or any of the other guardianships known to the law.—Kerr.

[9 ] 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 exists only in a court of law; for under the general protection afforded to infants by the court of chancery, an infant may in that court, by his prochein amy, call his guardian to account, even during his minority. 2 Vern. 342. 2 P. Wms. 119. 1 Ves. 91.

Guardians in scoage are by the common law accountable to the infant, either when he comes to the age of fourteen, or at any time after, as he thinks fit. Co. Litt. 87.

The guardian in his account shall have allowance of all reasonable expenses: if he is robbed of the rents and profits of the land without his default or negligence, he shall be discharged thereof in his account; for he is in the nature of a bailiff or servant to the infant, and undertakes no otherwise than for his diligence and fidelity. Co. Litt. 89, a., 123.

If a man intrudes upon an infant, he shall receive the profits but as guardian, and the infant may have an account against him as guardian, or the infant may treat him as a disseisor; and if a person during a person’s infancy receives the profits of an infant’s estate, and continues to do so for several years after the infant comes of age, before any entry is made on him, yet he shall account for the profits throughout, and not during the infancy only; and so it seems at law he should be charged in an action of account, as tutor alienus, (1 Vern. 295. 1 Atk. 489. 2 Fonbl. 5 ed. 235, 236;) and where a guardian, after his ward attains full age, continues to manage the property at the request of the ward, and before the accounts of his receipts and payments during the minority are settled, it is in effect a continuance of the guardianship as to the property, and he must account on the same principle as if they were transactions during the minority. And, under these circumstances, an injunction was granted on terms to restrain the guardian from proceeding in an action to recover the balance claimed by him on account of the transactions after his ward came of age. 1 Simons and Stu. Rep. 138.

A receiver to the guardian of an infant, whose account has been allowed by the guardian, shall not be obliged to account over again to the infant when he comes of age. Prec. Ch. 535.—Chitty.

Guardians are regarded with great liberality by the courts. Common skill, common prudence, and common caution are all that are required of them in the administration of their trust. Ordinary men are to be compared with, and judged by, the standard of ordinary men. Konigmacher vs. Kimmel, 1 Penna. Rep. 207. So guardians, like other trustees, are not answerable for the acts of agents necessarily employed by them, where proper care has been taken in their selection, unless there is an omission of ordinary diligence on their part in compelling their agents to perform their duties. Hennessey vs. The Western Bank, 6 W. & S. 300. A guardian using the money of his ward, or neglecting to invest it, is chargeable with interest; and the method of ascertaining the amount is to strike a balance of the money in the guardian’s hands every six months, and charge simple interest thereon, allowing a reasonable sum to remain in his hands to meet expenses. Say vs. Barnes, 4 S. & R. 112. Karr vs. Karr, 6 Dana, 3. Bryant vs. Craig, 12 Ala. 354. White vs. Parker, 8 Barb. 48. A guardian should keep his ward’s property separate from his own; otherwise he will make it his own so far as to be accountable for it if lost. If he takes notes or other securities for money belonging to his ward in his own name, he converts the property to his own use and is prima facie accountable for it. He cannot trade with himself on account of his ward, nor buy or use his ward’s property for his own benefit. If he attempts to do so, and the business is unsuccessful, all the loss shall be his own, and he shall be liable to his ward for the capital with interest; if, on the other hand, it turn out to be profitable, all the profit shall belong to the ward. The guardian cannot convert the personal estate of his ward into real. If he buys land with the ward’s money, the ward, at full age, may, at his election, take the land with its rents and profits, or the money with interest. White vs. Parker, 8 Barb. 48.—Sharswood.

[(p) ] 1 Sid. 424. 1 P. Wil. 703.

[10 ] Testamentary guardians are within the preventive and controlling jurisdiction of this court; and, if there be reason to apprehend that such a guardian meditates an injury to his ward, it will interfere, and prevent it. 1 P. Wms. 704, 705. 2 Fonbl. 5 ed. 249. 3 Bro. P. C. 341. 1 Sid. 424.

If a person appointed guardian under statute 12 Car. II. c. 24 dies, or refuses the office, the chancellor may appoint one, (1 Eq. Ca. Abr. 260, pl. 2. 1 P. Wms. 703;) and if he become a lunatic he may be removed. Ex parte Brydes, H. T. 1791. So if he become a bankrupt. But, generally speaking, a guardian appointed by statute cannot be removed by this court, (2 Cha. Ca. 237. 1 Ves. 158. 1 Vern. 442,) unless the infant be a ward of the court. 2 P. Wms. 561.

The court of chancery will in some cases, on petition, make an order of maintenance of the infant, (3 Bro. C. C. 88. 12 Ves. 492;) but, in general, payments to the infant during his minority are discountenanced. 4 Ves. 369.

In a case where a father left a legacy payable to a child at a future day, though he was silent respecting the interest, the court allowed maintenance, (11 Ves. 1;) and so in a case where the interest was directed to accumulate. Dick. 310. 1 Mad. 253. But an order of maintenance was refused, though so directed, the father being living, and of sufficient ability to maintain the infant. 1 Bro. C. C. 387.

In allowing maintenance, the court will attend to the circumstances and state of the family. 2 P. Wms. 21. 1 Ves. 160.

In some cases it will allow the principal to be broken in upon for the maintenance of the infant. 1 Vern. 255. 2 P. Wms. 22.

The court may interpose even against that authority and discretion which the father has in general in the education and management of the child, (1 P. Wms. 702. 2 P Wms. 177; and cases cited in 2 Fonbl. 5 ed. 232;) but quære if such a child must not be a ward of the court. 4 Bro. C. C. 101, 102.

The court will permit a stranger to come in and complain of the guardian and abuse of the infant’s estate. 2 Ves. 484.

The court will not suffer an infant to be prejudiced by the laches of his trustees or guardian. 2 Vern. 368. Prec. Ch. 151.

It must not be inferred that a court of equity will at any period, or under any circumstances, act upon a too indulgent disposition towards him; for, if an infant neglect to enter his property within six years after he comes of age, he is as much bound by the statute of limitations from bringing a bill for an account of mesne profits, as he is from an action of account at common law. Prec. Ch. 518; and see 1 Scho. & Lef. 352. 2 Fonbl. 5 ed. 235; id. 1 vol. 159, 2 n. (m.)

The court of chancery will assist guardians in compelling the wards to obey their legal desires; and where an infant went to Oxford contrary to the orders of his guardian, who wished him to go to Cambridge, the court sent a messenger to carry him from Oxford to Cambridge; and, on his removing to Oxford, another messenger was sent to carry him to Cambridge and keep him there. 1 Stra. 167. 3 Atk. 721.

Where a presbyterian having three laughters bred up in that persuasion, and three brothers, who were presbyterians, made his will, appointing his brothers and also a clergyman of the church of England guardians to his three infant daughters, and died, having sent his eldest daughter to his next brother, and the clergyman got possession of his two other daughters, and placed them at boarding-school, where they were educated according to the church of England, and then filed a bill to have the eldest daughter placed out with the other daughters; and the three presbyterian brothers brought their bill to have the two daughters delivered to them, offering parol evidence that the testator directed that he would have his children bred up presbyterians, but the court declared that no proof out of the will ought to be admitted in the case of a devise of a testamentary guardianship, any more than in a case of a devise of land, and that the decision of the majority of the guardians ought not to govern; and directed that the master should inquire whether the school at which the two youngest daughters were placed was proper; and as to the eldest, who was of the age of sixteen, she was brought into court, and asked where she desired to be, and, on her declaring her wish to be with one of her uncles, it was ordered accordingly. 3 P. Wms. 51. 2 Ves. 56. 1 P. Wms. 703.

Marrying a ward of the court of chancery without the consent of the court is a contempt, for which the party may be committed or indicted, though he was ignorant of the wardship. 3 P. Wms. 116. 5 Ves. 15. But to render third persons so liable it should appear that they were apprized of the party’s being a ward. 2 Atk. 157. 16 Ves. 259.

A marriage in fact is sufficient to ground the contempt, though the validity of the marriage be questionable. 6 Ves. 572.

To clear such a contempt, a proper settlement must be made on the ward. 1 Ves. Jun. 154. But the making such settlement does not necessarily cure the contempt. 8 Ves. 74. It is not cleared by the ward’s attaining the age of twenty-one. 3 Ves. 89. 4 id. 386.—Chitty.

[(q) ] Salk. 44, 625. Lord Raym. 480, 1096. Toder vs. Sansam, Dom. Proc. 27 Feb. 1775.

[11 ] If he is born on the 16th of February, 1608, he is of age to do any legal act on the morning of the 15th of February, 1629, though he may not have lived twenty-one years by nearly forty-eight hours. The reason assigned is, that in law there is no fraction of a day; and if the birth were on the last second of one day, and the act on the first second of the preceding day twenty-one years after, then twenty-one years would be complete; and in the law it is the same whether a thing is done upon one moment of the day or on another. 1 Sid. 162. 1 Keb. 589. 1 Salk. 44. Raym. 84.—Christian.

A person is of full age the day before the twenty-first anniversary of his birthday The State vs. Clarke, 3 Harring. 557. Hamlin vs. Stevenson, 4 Dana, 597.—Sharswood.

[(r) ] Pott. Antiq. b. 4, c. 11. Cic. pro Muren. 12.

[(s) ] “Unless when they shall come into the power of a husband.”

[(t) ] 1 Inst. 1, 23, 1.

[(u) ] “To the one-and-twentieth year; and, until then, the young remain under guardianship.”

[(v) ] Stiernhook de Jure Sueonem, l. 2, c. 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii. 220.

[(w) ] Co. Litt. 135.

[12 ] This is incorrectly expressed. 1st. The infant is sued in his own name alone, as any other person; but he appears to defend his cause by guardian, being supposed, without discretion, to appoint an attorney for that purpose. 2d. He does not necessarily appear by his regular guardian, as the text implies, but by any person whom the court shall appoint guardian ad litem to defend that particular suit. It is within the province of every court to appoint a guardian ad litem, where a party in a suit is an infant. See vol. iii. p. 427.—Coleridge.

[(x) ] 1 Hal. P. C. 25.

[(y) ] Ibid. 26.

[(z) ] Foster, 72.

[(a) ] Stat. 7 Anne, c. 19. 4 Geo. III. c. 16.

[(b) ] Co. Litt. 172.

[(c) ] Ibid. 2.

[(d) ] Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179

[(e) ] Stat. 12 Car. II. c. 24.

[13 ] It has been considered that a bill of exchange, or negotiable security, given by an infant during his minority, is in no case binding on him, though given for necessaries, (2 Camp. 562, 563. Holt, C. N. P. 78. 1 T. R. 40. 4 Price, 300. Chit. on Bills, 5 ed. 22;) and most clearly so, if not given for necessaries. Carth. 160. But, infancy being a personal privilege, the infant only can take advantage of this. 4 Esp. 187.

An infant is not liable on an account stated, even though the particulars of the account were for necessaries. 1 T. R. 40. See 2 Stark, 36, where otherwise in equity. 1 Eq. C. Abr. 286.—Chitty.

[14 ] This rule is providently intended for the benefit of the infant, that he may be enabled to gain credit for such things as are suited to his degree and station. The term necessaries, used by lord Coke, is a relative one; and the question, as to what are necessaries, must be determined by the age, fortune, condition, and rank in life of the infant, (see 8 T. R. 578. 1 Esp. Rep. 212. Carter, 315,) which must be real, and not apparent. Peake, 229. 1 Esp. Rep. 211. The question, as to what are necessaries, is for a jury. 1 M & S. 738.

Liveries ordered by a captain in the army for his servant have been considered necessaries. 8 T. R. 578. Regimentals furnished to a member of volunteer corps may be recovered as necessaries. 5 Esp. 152. But it has been held that a chronometer is not necessary for a lieutenant in the navy, when he was not in commission at the time it was supplied. Holt, C. N. P. 77.

An infant has been held liable for a fine on his admission to a copyhold estate. 3 Burr. 1717. But it has been said, that if an infant is the owner of houses, and it is necessary to have them put in repair, yet the contract to repair will not bind him at law; for no contracts are binding on an infant but such as concern his person. 2 Roll. Rep. 271. But in equity, an agreement by an infant to pay compound interest on mortgage to prevent foreclosure is binding. 1 Eq. C. Abr. 286. 1 Atk. 489.

An infant is liable for necessaries furnished to his wife and family, (1 Stra. 168,) or for the nursing of his lawful child, (Bacon, Max. 18,) but not for articles furnished in order for the marriage. 1 Stra. 168. He is liable for so much goods supplied him to trade with as were consumed as necessaries in his own family. 1 Car. Rep. 94.—Chitty.

[(f) ] Co. Litt. 172.

[15 ] The general rule is that the contracts of an infant are voidable by him. Oliver vs. Houdlet, 13 Mass. 237. Whitney vs. Dutch, 14 ibid. 457. Yet there are some contracts so clearly prejudicial that they are held to be not merely voidable, but absolutely void. Such is the contract of suretyship. Maples vs. Wightman, 4 Conn. 376. So a negotiable note, as such, is merely void, though the contract which forms the consideration of the note may be otherwise. The infant cannot be precluded (as is the maker of a negotiable note as against an endorser or bona fide holder) from going into an examination of the consideration. Earle vs. Reed, 10 Metc. 387. McMinn vs. Richmond, 6 Yerg. 9. Although it be true that all the contracts of an infant are voidable, it would be manifestly unjust to allow him to retain the consideration received by him and reclaim that which he has parted with. Therefore, if an infant sell goods and receive the money for them, he shall not be permitted to recover back the goods without returning the money Badger vs. Phinney, 15 Mass. 359. Kitchen vs. Lee, 11 Paige, 107. Bailey vs. Barn berger, 11 B. Monroe, 113.

Infants are liable for their torts in the same manner as persons of full age. Bullock vs. Babcock, 3 Wend. 391. Wherever, however, the inducement to the action is a contract, and the gravamen is fraud in the contract, the infant cannot be ousted of his privilege by an election of a form of action ex delicto. Thus, infancy is a good bar to an action founded upon a false and fraudulent warranty upon the sale of a horse. West vs. Moore, 14 Verm. 447.

An infant is liable in trover, although the goods were delivered to him under a contract, and although they were not actually converted to his own use. Vasse vs. Smith, 6 Cranch, 226. Lewis vs. Littlefield, 3 Shep. 233. When property is bailed to an infant, his infancy is a protection to him for any non-feasance so long as he keeps within the terms of the bailment; but when he departs from the object of it, it amounts to a conversion of the property, and he is liable to the same extent as if he had taken it in the first instance without permission. Towne vs. Wiley, 23 Verm. 355. An infant who has represented himself to be of full age, and thus procured a credit, is not estopped by such representation from setting up his infancy in avoidance of the contract. Burley vs. Russell, 10 N. Hamp. 184. He is answerable, however, to the party injured in action on the case in damages. Fitts vs. Hall, 9 N. Hamp. 441. Wallace vs. Morss, 5 Hill, 391.

An infant may, however, be liable for the debts contracted by his wife before marriage; for, as he is competent by law to enter into the marriage relation, he must also be competent to bear all the responsibilities of such relation. It is evident that, as the wife’s personal property becomes his, though an infant, the creditor of the adult wife would be deprived of all remedy if the husband could set up his infancy as a bar to the action. Butler vs. Brick, 7 Metc. 164.

An infant who has a guardian or parent who supplies his wants cannot bind himself for necessaries. Guthrie vs. Murphy, 4 Watts, 80. Wailing vs. Toll, 9 Johns 141. Angel vs. McLellan, 16 Mass. 28.

If a minor is supplied—no matter from what quarter—with necessaries suitable to his estate and degree, a tradesman cannot recover for any other supply made to the minor just after. The rule of law is that no man may deal with a minor: the exception to it is that a stranger may supply him with necessaries proper for him, in default of supply by any one else; but his interference with what is properly the guardian’s business must rest on an actual necessity,—of which he must judge in a measure at his peril. It is the tradesman’s duty to know not only that the supplies are unexceptionable in quantity and sort, but also that they are actually needed. When he assumes the business of the guardian for purposes of present relief, he is bound to execute it as a prudent guardian would, and, consequently, to make himself acquainted with the ward’s necessities and circumstances. The credit which the negligence of the guardian gives to the ward ceases as his necessities cease; and, as nothing further is requisite when these are relieved, the exception to the rule is at an end. Gibson, C. J. Johnson vs. Lines, 6 W. & S. 82. Kline vs. L’Amoureux, 2 Paige, 419. Perrin vs. Wilson, 10 Missouri, 451.

The promise of an infant cannot be enforced against him upon a mere acknowledgment, nor upon a partial payment after he comes of age. A direct promise to pay is necessary, or an express agreement to ratify his contract. Yet no new consideration is necessary. The moral obligation resting upon him to pay a just debt—or, perhaps more accurately, to compensate a benefit actually received and enjoyed—is sufficient consideration to sustain an express promise to pay. Whitney vs. Dutch, 14 Mass. 457. Thompson vs. Lay, 4 Pick. 48. Wilcox vs. Roath, 12 Conn. 550. Curtis vs. Patton, 11 S. & R. 305. Ordinary vs. Wherry, 1 Bailey, 28. Hinely vs. Margarite, 3 Barr. 428.—Sharswood.