CH. IV.

INTRODUCTION. time for the purpose of compelling a proper settlement of her fortune, whether it remain directly under the control of the Court or not (p). And in cases where there is no contempt, and whether the ward marry before age or after age, where the Court has a control over her property before marriage, her right to a settlement is preserved, and it will be enforced unless she come into Court and waive it (q).

So in Austen v. Halsey (r), Lord Eldon said, that though a female ward, when of age, might make what settlement she pleased, by consenting personally in Court, or under a commission, yet where this was not done her property would never be discharged from the protection of the Court, except by order of Court, and until that proceeding, she and her property must always be considered as having the protection of the Court.

So the jurisdiction will continue as to any acts, suits, agreements, and matters, whether during the progress of a cause or otherwise, by or on behalf of infants, begun but not completed during infancy. Thus the Irish Master of the Rolls allowed the accounts of a receiver of the property of a ward to be reviewed by the Master on his attaining full age, on his shewing errors and neglect (s). So on the marriage of a ward, at full age, the treaty being begun during minority, the settlement was referred to the Master for his approval, and if necessary to settle a new one (t). So Lord Chancellor Hart said (u), that an intended husband objecting to execute the settlement approved by the Master, could not, by waiting till the infant came of age, elude the jurisdiction, and the ward's fortune being in Court, he would be held to that settlement at any future time. So where a ward's fortune had, on a marriage, been paid out fraudulently on an affidavit she was of age, on its replacement after age by order of Court, it was held to remain entirely at its disposal, and could not be the subject of any agreement (x).

So too where a guardian after his ward (who was not a ward of Court) attained full age, and before any settlement of the accounts was made, continued to manage his property, it was held in equity in effect a continuance of the guardianship, and that he must account as if his ward were still a minor (y). And the protection of the Court is continued in such matters to infants after they have attained twenty-one, until they have acquired all the information they might have had in adult years (≈).

So gifts, securities, and other benefits obtained by guardians or

(p) See Ball v. Coutts, 1 V. & B. 300. Hodgens v. Hodgens, 4 Cl. & Fin. 324.

(9) Re Walker, Ll. & G. Hodgens v. Hodgens, supra.

(r) 2 S. & S. 123, n. And see Long v. Long, ibid. 119.

(s) Wildridge v. M'Kane, 2 Moll. 545.

(t) Re Donne, 2 Moll. 490.

(u) Ibid. n.

(a) Re Barrington, 1 Beat. 199; 2 Moll. 249, Ch. Hart.

(y) Mellish v. Mellish, 1 S. & S. 138. () Per Lord Eldon, Walker v. Symonds, 3 Lev. 69.

CH. IV.

other parties, from an infant after attaining age, in consequence INTRODUCTION. of their influence over him whilst under age, will always be set aside by the Court.

The infant has the privilege either after coming of age, or before, of calling his guardian or trustee, or other party who has had the management or possession of his property to an account for it, and such party will be made answerable for any breaches of trust, or losses occasioned by his misconduct or negligence.

The Court will constantly, on the application of the infant, take his property under their management, and if consisting of money or stock, will cause it to be paid or transferred into Court.

The Court has a general control over the custody, maintenance, education, and marriage of the infant.

So the Court will in many cases aid the disabilities of infants at law, and act in their behalf for their benefit, partly authorised by statutes and partly by virtue of the general jurisdiction.

And finally, suits by and against infants, may, and constantly are, brought in the Courts of Equity, and they afford great privileges and facilities to and in behalf of infants in such suits.

INTRODUCTION.
CH. V.

CHAPTER V.

Of the general mode to be adopted in order to bring Infants within the Jurisdiction.

THE particular modes to be followed, in order to subject infants and their property to the controlling and protecting power of Chancery, will, of course, appear more largely developed as we proceed to consider the individual cases to which its jurisdiction is applicable.

However, it may here be generally laid down that the Court will not act of itself, unless informed, and its authority and interference be solicited on behalf of the infant, at least there is no instance of such intervention, for the Court has the care, but not the guardianship of infants (a). The Court has however acted for the protection of an infant's person on a mere letter written by him to the Lord Chancellor (b.)

Any person whatever may inform or solicit the aid of the Court on behalf of an infant, even without his consent (c), as we shall see in the course of the following Treatise, and more particularly when we come to consider the subject of Suits by and against infants.

He may proceed either by bill, by petition, or motion in the cause; by petition Ex parte; by motion Exparte; by writ of habeas corpus, or homine replegiando, or ne exeat, in those cases to which these several remedies are applicable.

The Court, however, will, as a general rule, never decide on the right of the property and estates of the infant, or of the control and protection of his person, completely and ultimately, unless he be a Ward of Court, in the full sense of the term (d). Infants may, indeed, in some sense be said to be Wards of Court, when on petition. or motion, they are brought within its authority. "Properly speaking," says Mr. Story (e), "a Ward of Chancery is a person who is under a guardian appointed by the Court of Chancery," but the jurisdiction, we shall find, may then be but limited and partial, and confined to that particular subject and occassion. But if made a

(a) 2 P. Wms. 117.

(b) Newport v. Moore. Dick. 166,

(c) Andrews v. Cradock, Prec. Ch. 376. Anon. 1 Atk. 570. Per Lord H. 2 Ves. 472.

(d) See Ex parte Hopkins, 3 P. Wns.

153. Per Lord Hardwicke, Ambl. 302. Goodall v. Harris, 2 P. Wms. 560. Contra, as to the right of guardianship, 2 P. Wms. 118, sed q.

(e) Comm. 2, 581.

ward by bill the infant is in every sense under its protection and INTRODUCTION. control.

The mere filing a bill, to which the infant is party, makes an infant a ward of Court (f), even if it be only on the very day the act complained of, or to be guarded against occurred (g), and when the infant is once a ward, any matter then may be determined on petition or motion.

Applications by petition are made use of among other cases in those of guardianship or maintenance, as for instance, for the appointing or even superseding of guardians, and giving of maintenance, when the case is strong and simple, or nothing be in dispute or likely to be so. So also for the protection of the infant as to his marriage or property, of which we shall have to consider numberless cases in the sequel.

On application by homine replegiando, or habeas corpus, whether at Common Law or under the statutes (h), the Court has jurisdiction under these writs, precisely on the same principle as Courts of Law (i). It was formerly a question whether these writs were grantable in vacation by the Chancellor (k). This point was in dispute in Crawley's case (), when Lord Chancellor Eldon decided that they might be then issued.

The writ of habeas corpus considered relatively to infants in Equity, seems applicable to two cases. First, to restore infants to the legal custody from which they have been taken or detained (m). Secondly, to free them from duress, cruelty or oppression, respecting which, Lord Eldon said (n), that his jurisdiction in this respect was exactly the same as if it were before a judge, and he apprehended that a judge attended to nothing but cruelty or ill usage in taking a child from his father, and to no other collateral circumstances, as he might do on petition.

CH. V.

PART I.

OF THE JURISDICTION AND PRACTICE OF COURTS OF
EQUITY IN REGARD TO THE PERSONS OF INFANTS.

BOOK I.

OF THE CONTROL EXERCISED BY COURTS OF EQUITY OVER THE
PERSONS OF INFANTS.

CHAPTER I.

Of the rule of the Court that Infants must be kept within the
Jurisdiction.

PT. 1.-BK. I.

Infants must

SECTION I.

The General Rule.

WHEN the persons of infants are by due and proper course of law CH. I. S. I. brought before the Court, it will take especial care that they remain within its jurisdiction and obey its directions therein, and will not in the jurisdiction. general, whether they be actually wards or not, permit them to be taken or go out of it.

remain within

Thus, in Shaftesbury v. Hannam (a), upon a suggestion that the mother, the testamentary guardian, intended to take the infant beyond sea, she was ordered (although denying it) to enter into a recognizance in a penalty of 1000%., not to send or willingly permit the infant to be sent beyond sea. In Ex parte Hales (b), on petition of the grandfather, the mother being guardian, a homine replegiando was issued against a party who had taken a child abroad. So in Foster v. Denny (c), where the mother was testamentary guardian, and the uncle having got possession of the boy, sent him to a Pro