CH. II.

be deemed the domicile of his nativity; if he be an illegitimate child INTRODUCTION. he will follow the domicile of his mother. The domicile of birth of minors continues until they have obtained a new domicile, and they are in general incapable proprio marte of changing their domicile. during their minority, and, therefore, they will retain the domicile of their parents; if the parents change their domicile, that of the infant children follows it; if the father dies, his last domicile is that of the infant children (o).

(0) Story Conf. L. 44; Burge Comm. 1, 32.

INTRODUCTION.

CH. III.

CHAPTER III.

Of the mode in which the Court will inform itself of the existence of
Infancy, and judge of the age of Infants or their legitimacy.

Ar common law the mode of trial and ascertaining of infancy is by inspection of the Court or by jury. By the latter mode only when he is of age at the time of the plea (a).

In Chancery where the fact of the infant's being under age and not his particular age is to be ascertained, inspection is a mode which may be adopted in summary proceedings, the infant being brought into Court by the messenger or serjeant. As in the case of clandestine marriages of wards (b).

But whenever the question is doubtful, or ulterior proceedings are to be taken, or it is needful to ascertain the exact age, the Court issues its order for a reference to the Master unless the fact be admitted. Thus, in Dinely v. Foot (c), the age of the petitioner being disputed, it was referred to the Master to inquire if he were of age or not, and notice was to be given to the parties to attend and contest the matter.

So where there is any question as to maintenance or the amount of it, for the determining of which the age must be ascertained, it is always done by a reference to the Master (d). In some cases under particular circumstances, a reference to the Master is dispensed with, in which case the matter is disposed of by affidavit in Court. (e)

With respect to coming of age, if the fact be doubtful, it is apprehended a reference to the Master will always be made as in other cases. If a ward of Court, or former proceedings have been taken, as his age will be of record, no reference can be required, but any order may be obtained on affidavit in Court.

The Court informs itself of the legitimacy of infants if disputed, either by reference to the Master, upon whose report, if satisfied therewith it will act; or if the matter be doubtful, and in all cases where the opposing parties require it, the Court will direct an issue to be tried at law (ƒ).

(a) Bac. Ab. Inf. D.

(b) Millet v. Rowse, 7 Ves. 419.

(c) Dick. 401.

(d) See the order in Wellesley v. Beaufort, 2 Russ. 28; and the cases post, as to

maintenance, marriage, and guardianship, passim.

(e) See the cases specified under the above heads, post.

(f) Forbes v. Taylor, 1 Ves. J. 98.

CHAPTER IV.

Of the Extent and Nature of the Jurisdiction in respect of Infants.

Cu. IV.

IT has been already observed, that the three Courts of Equity INTRODUCTION. (with the exception of the Court of Exchequer), possess in all respects a concurrent jurisdiction in all questions relating to infancy. It is, however, further to be observed, that the appellate jurisdiction from the two inferior Courts, is vested in the Lord Chancellor, and from him in the House of Lords, in exactly the same mode as in other equitable questions. But there seems to be no instance of original proceedings in such like matters being commenced in the House of Lords.

The Court of Exchequer also, though having no peculiar jurisdiction over infants, yet when a cause is instituted respecting their property, has the same powers as other Courts.

This authority extends both to the CONTROL as well as the PROTECTION of infants (a), and this control and protection extends both to their PERSONS and to their PROPERTY (6). But it would seem it can only extend to the person in respect of the property (c). Lord Eldon, in Wellesley v. Beaufort (d), adverting to the observation, that "the Court had not exercised its jurisdiction, unless where there was property belonging to the infant to be taken care of in this Court," says, "whether that be an accurate view of the law or not; whether it be founded on what Lord Hardwicke says (e), that there must be a suit depending relative to the infant or his estate (applying, however, the latter words rather to what the Court is to do with respect to the maintenance of infants), or whether it arises out of a necessity of another kind, namely, that the Court must have property, in order to exercise this jurisdiction, that is a question to which, perhaps, sufficient consideration has not been given. If any one will turn his mind attentively to the subject, he

(a) Tremain's case, Str. 168. Hall v. Hall, 3 Atk. 721. Beaufort v. Bertie, 1 P. Wms 704. De Manneville v. De Manneville, 10 Ves. 52. Tombes v. Elers, Dick. 88. Shipbrook v. Hinchinbrook, ib. 547. Jeffrey v. Wanteswarstwarth, Barnard. 143. Newport v. Moore, Dick. 166, where the

infant, (a ward) wrote to the Lord Chan-
cellor for protection.

(b) See Reports, passim.

(c) Ambl. 303. Wright v. Naylor, 5

Mod. 77.

(d) 2 Russ. 20.

(e) Amb. 303.

CH. IV.

INTRODUCTION. must see that this Court has not the means of acting, except where it has property to act upon. It is not, however, from any want of jurisdiction that it does not act, but from a want of means to exercise its jurisdiction, because it cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this . jurisdiction usefully and practically, only where it has the means of doing so, that is to say, by its having the means of applying property for the use and maintenance of the infants." In the same case on appeal before the House of Lords (e), Lord Redesdale, in delivering his judgment said, that the jurisdiction extended to the care of the person as far as was necessary for protection and education; that the care of the person to protect from violence belonged to the King's Bench, but that the care of the person with respect to education belonged to the Court, and that in that case, the Court might, perhaps, have exercised the jurisdiction against the father for the purpose of education independently of the suit instituted. From these dicta, it is perhaps, inferrible, that where the Court acts concurrently with the common law Courts, as for instance, on writs of habeas corpus, the existence of property belonging to the infants is not an indispensable requisite.

The general rule and object on which the Court acts, and has always in view both as to the person and property of the infants, is to direct that which is most for their benefit (f).

"The jurisdiction is not profitable to the crown, but for the benefit of infants themselves, who must have some common parent," (g) which dictum, it will be observed, is consistent with the notion that the Court acts in this case as parens patriæ.

And the Court will interfere not merely on the ground of an injury actually done, or attempted against the infant's person or property; but also if there be any likelihood of such an occurrence, or even an apprehension or suspicion of it (h).

The jurisdiction is exercised sometimes by way of punishment on such as have done any act to the prejudice of the infants, but it is more usefully exercised to restrain persons from doing anything to disparage infants where the act has not yet been completed (¿).

The Court will interfere not only to punish an evil committed, but

(e) Wellesley v. Wellesley, 2 Bl. N. S.

137.

(ƒ) Powell v. Cleaver, 2 B. C. C. 501. De Manneville v. De Manneville, 10 Ves. 64. Lyons v. Blenkin, Jac. 262. Colston v. Morris, ib. 258, n. Wellesley v. Beaufort, 2 Russ. 28. Stephens v. James, 1 M. & K. 629, and Reports, pass.; and see cases as to maintenance and marriage under those heads, and as to advancement, Evans v. Massey, 1 Y. & J. 196.

(g) Per Lord Hardwicke, Smith v. Smith, Atk. 305.

(h) Per Lord's Comms. 2 P. Wms. 112, Eyre v. Shaftesbury. De Manneville v. De Manneville, 10 Ves. 65. Per Lord Macclesfield, 1 P. Wms. 703. If a guardian in socage be suspected to be insufficient, the Court will make him account yearly, Hanbury v. Walker, 3 Rep. Ch. 59.

(i) Per Lord Hardwicke, Smith v. Smith, 3 Atk. 305.

CH. IV.

to prevent evils likely to ensue (k). In Beaufort v. Bertie (1), INTRODUCTION. Lord Macclesfield said, that preventing justice was to be preferred to punishing justice, and that he ought rather to prevent the mischief and misbehaviour of guardians, than punish it when done. That if any wrong steps had been taken which might not deserve punishment, yet if they were such as induced the least suspicion of the infants being likely to suffer from the conduct of the guardians, or if the guardians chose to make use of methods that might turn to the prejudice of the infant, the Court would interpose. This doctrine was quoted with approbation by Lord Eldon (m), in Wellesley v. Beaufort, and in that case (n), he said that it had always been the principle of the Court not to risk the incurring of damage to children which it could not repair, but rather to prevent the damage being done.

That the Court will punish those who act or attempt to act to the prejudice of infants, whether they be wards or not, we shall have frequent opportunities of seeing hereafter, premising here that when the infants are wards, both the preventive and punishing powers of the Court can be more conveniently and effectually exercised than when they are not so.

The Court may do many things, ex officio, for infants; it may give extrajudicial directions, may hear a stranger as amicus curiæ, may on his complaint of the guardian, and of abuse of the infant's estate, and undertaking to pay costs, direct the Master to examine the receiver's accounts (o).

In respect of duration of time, the general rule of the Court may be stated to be, that in all matters the jurisdiction, in regard of infancy, ceases on the minor obtaining full age, whether he be a ward or not. With regard to the control and protection of the persons of infants, this rule is probably without exception. With relation to females, indeed, marriage, unless it be a contempt of Court, in many important particulars determines its authority over her person, provided the wife be of years of discretion; wholly it is presumed as to any control over her residence, education, or cohabitation with her husband, or personal behaviour. If the marriage be a contempt we shall find that even in this respect the Court will retain authority over her person so long as it can be exercised for her benefit.

With respect to the estate and property of infants, the general rule is the same, but is subject to many important exceptions. Thus we shall hereafter find that if a ward be married clandestinely, in contempt of the Court, its jurisdiction will extend over any period of

(k) 2 Fonbl. Eq. 249, n.

() 1 P. Wms. 703.

(m) 2 Russ. 22.

(n) Ibid. 18.

(0) Per Lord Hardwicke, 2 Ves. 472.