The Equitable Jurisdiction of the Court of Chancery

Jurisdiction of the Court of Chancery in respect of Infants. 611

cised over Testamentary Guardians-Parental Authority controlled-Jurisdiction not committed to any other Court-Analogy between Jurisdiction of the Chancellor and of the Prator.

It is hardly to be expected that much should be found in the ancient records of the Court of Chancery, in regard to the exercise of this jurisdiction so far as it was merely voluntary, as distinguished from contentions. In early times, the proceedings in such cases would scarcely be recorded at all; the appointment or order would serve the purposes of the day, and that would be sufficient (a).

In the reign of Elizabeth, many suits were instituted for calling common law guardians to account (b), and many decrees were made (c). Orders relating to the custody of the persons of infants are also to be found from the time of Elizabeth (d); but it is from the later authorities only, that the nature and extent of the jurisdiction can be ascertained.

The principle that the appointment of guardians in cases not provided for by the law, is not incident to any office or magistracy, is clearly recognized (e). It is under an assumed delegation from the crown, that it is exercised by the Court of Chancery (f).

The Court of Chancery at an early period exercised a control over legal guardians, removing them when necessary, or compelling them to give security (g), even to the extent of removing the ward from his guardian in chivalry (h), where the ill-treatment of the guardian required such an interference. In the reign of Elizabeth, bills in Chancery by infants, to compel common law guardians to account, appear to have been frequent (i), notwithstanding that the common law, like the Roman law, had provided for the infant an action of account on his coming of age. [*612]

The rendering an account may be considered, according to the modern practice of the Court of Chancery, equally as it was in that of the Prætor, as almost a necessary condition to the guardian obtaining a discharge from the liabilities incurred by the guardian towards his ward (k).

From the year 1796 (1), we have a continued succession of recorded instances of the Court of Chancery assuming, as part of its jurisdiction, and apparently without complaint, almost without observation (m), to

(a) In Reg. Lib. B. 1582, fo. 177, there is an order for the appointment of a curator to receive property belonging to an infant, which is the first order of this description, I believe, that has been met with.

(b) Cal. vol. i. p. 96. 89. 293. 417, beginning A. D. 1586.

(d) In Reg. Lib. A. 1590, fo. 257, there is an order of this kind made by the Master of the Rolls, so that the jurisdiction clearly belonged to the court.

(e) Lord Eldon, De Manneville v. De Manneville, 10 Ves. 59; Lord Ellenborough, The King v. Hopkins, 7 East, 579.

(ƒ) Ibid., and Butler v. Freeman, Ambler,

302.

(g) 9 Modern, 141, Hughes v. Science, 1740, before Lord Hardwicke, Macpherson, Append. p. ii.

(h) Foster v. Denny, 2 Ch. Ca. 237, Lord Nottingham, "where there is a guardian

ship by the common law, this court will intermeddle and order," et v. 2 Fonbl. 233; also in the case of a testamentary guardian, Tombes v. Ellers, Dick. 88.

(1) Reg. Lib. 8 & 9 Eliz., fo. 248, &c., Cal. vol. i. p. 96. 89. 293. 417; these bills begin in 1586. Bills in regard to infant wards were filed at an earlier period, as noticed by Mr. Macpherson; but some of them were for the purpose of enforcing the rights of common law guardians, and principally on behalf of the king or his grantees, who, as before observed, has a prerogative right of resorting to this court at his plea

612

Appointment of Guardians-Maintenance.

appoint guardians for protecting the general interests of infants, where no testamentary guardian existed; not only where the interests of the infant, in regard to his property, were brought under the cognizance of the court by bill, but by petition without suit (a). This jurisdiction has always been exercised ex inquisitione, that is, after a due examination, through the officers of the court, of the fitness of the persons to be appointed; but as an additional security, the guardian was required to enter into a recognizance, sometimes with sureties, duly to account (b). In ancient times, the guardian appointed was in the nature of a receiver, as well as guardian; but by the modern practice, a receiver to manage the estate, who gives security, as distinct from a guardian of the person, is appointed, and a receiver is only appointed on a bill being filed (c). The Court of Chancery has also taken charge of the maintenance and education (d) of infants, giving directions for the application of a sufficient part of the income of their estates for this purpose; but, unless in case of necessity, preserving the capital (e); carrying its interference, in a proper case, to the extent of making the provision nominally made for the infant heir, subservient to the education of his younger brothers and sisters (f), and giving and enforcing, where it may be necessary, particular directions as to where and how the infant under its charge shall be educated (g). The marriage of an infant, being a ward of the [*613] Court of Chancery, is the subject of its especial superintendence and care (h). The Court, though in taking into its hands the management of the property of infants, it acts upon the principle of securing a due regard to their interests, prohibits, as a general rule, any alteration of their estates from the condition in which they stand, whether real or personal, notwithstanding any apparent advantages that might possibly result from such conversion (i).

The court will protect the property of the infant, even against the father (k). The court has exercised nearly the same control over testamentary guardians as over guardians who owed all their authority to the court; not indeed removing a testamentary guardian, but depriving him in effect of all authority where it has been judged necessary for the real

original assumption was an usurpation. Note to Co. Litt. 88 b.

(a) 2 Fonblanque, 226, et seq.

(b) Macpherson, p. 108, 9. In some cases, security to account was taken at law, Co. Litt. 89 b.

(e) See Treatise of Eq. Fonbl. ii. p. 235. (f) Lord Eldon, Wellesley v. Duke of Beaufort, 2 Russ. 23.

(g) Gilbert's Eq. Rep. 173; 2 P. Wms. 113; 8 Mod. 214.

(h) From the time of Lord Hardwicke it has been established, that a bill for the direction of the court, as to the estate or person of the infant, and for his benefit, was necessary to constitute an infant a ward, so as to make the marrying an infant without the consent of the court, punishable, as a contempt. Hughes v. Science, 1740; Macpherson, Append. p. ii. iii.; Blunt's Ambl.

302.

(i) Macpherson, 287. 297. It is completely established, that the court can nei ther give effect to a sale nor exchange of an infant's real estate, however beneficial to him, Calvert v. Godfrey, 6 Beav. 97; Peto v. Gardner, 2 Y. & Coll. N. S. 312, and see ix. Jurist, 78. An infant after 14, (that is after the age of tutorship, v. sup. p. 305, ceased.) might have made a will of personal estate, so that the conversion of personal estate into real, would have been a disadvantage to the infant, as infringing on his power of devising, and this is frequently given as the reason why it should not be done: as the new Act as to Wills, 1 Vict. c. 26, has taken away from infants all power of testamentary disposition, that reason no longer exists.

(k) Lord Hardwicke, Butler v. Freeman, Amb. 302.

Protection of Infants and their Property-Jurisdiction, &c. 613

interests of the infant (a); and the court has gone to the extent of controlling parental authority over the person of the infant (b). As regards the property of the infant originally, the rule that he whom the father had trusted might be trusted by the court was adopted, and it required circumstances of suspicion to induce the Court to call upon the guardian to give security (c); but modern decisions have put all guardians upon. nearly the same footing (d), and a fund belonging to an infant may be secured by a transfer into court merely for the asking.

[*614]

This jurisdiction has also been exercised concurrently by the judges of the Court of Chancery of the County Palatine of Lancaster. In suits relating to the property of infants, the jurisdiction of appointing guardians and maintenance was, latterly at least, exercised by the Court of Exchequer as a Court of Equity till its abolition (e). But, as before *noticed, no such authority as is exercised by the Courts of Equity has been considered by the judges of the Common Law Courts as incident to their jurisdiction, excepting so far as appointing a guardian ad litem (f), which is necessarily incident to every Court of Justice (g). Lord Hardwicke denounced the jurisdiction which the Ecclesiastical Courts (h) had claimed, of appointing general guardians to minors, as wholly unauthorized, he considering that their jurisdiction also only extended to appointing guardians ad litem (i).

On the whole it appears that the authority exercised by the Court of Chancery is more than the execution of a trust, on which it has sometimes been put (k), and that the authority of the state, which resides in the sovereign, (for such is the effect of attributing the duty of protecting infants to the sovereign in the character of parens patriæ,) (1) has been deputed to the Court of Chancery (m), at least in the eye of the law, in

(a) Tombes v. Elers, Dick. 88; Duke of Beaufort v. Berty, 1 P. Wms. 704-5. "The statute did no more,' says Lord Macclesfield, "than empower the father by will to choose a different person from him that would have been guardian in socage, and to continue that guardianship until a different time."

(b) 2 Fonbl. 232; Lord Eldon, 2 Russ. 29; Wellesley v. Wellesley, 2 Bli. N. S.

(e) 3 Bla. Comm. 427; Evans v. Massey, 1 Y. & J. 196; and see 2 Y. & J. 243.

(f) See Hargrave's Note (16), Co. Litt. 88 b; Macpherson, 95, 96; but even here the Crown has exercised a superintending control, Fitz. N. B. 21 b, 198, cited 2 P. W. 119.

(g) 3 Bla. Comm. 427. See Lord Eldon's judgment, Wellesley v. Duke of Beaufort, 2 Russ. 23; De Manneville v. De Manneville, 10 Ves. 59; Lord Ellenborough, The King v. Hopkins, 7 East, 579; and Ex parte Skinner, 9 Moore, 278.

(h) The judges of the Ecclesiastical Court had exercised, without contradiction, the Prætorian office of opening the will; they VOL. I.-37

assumed this jurisdiction as incident to it, Marriott v. Marriott, Gilbert Eq. Rep. 204, v. Dig. xxix. 3. 4. & § 3, 1.

(i) Hughes v. Science, 1740; Macphers. Append. iii. iv.

(k) Duke of Beaufort v. Berty, 1 P. Wms. 704-5.

(4)"The law of this country has reserved to the king, as parens patriæ, the prerogative for the protection of infants," Lord Redesdale, Wellesley v. Wellesley, 2 Bli. N. S. 129, et seq. "The king is protector of all his subjects (Bracton, iii. c. 9; Fleta, c. 2, and Stamford fo. 37): he is more particularly to take care of those who are not able to take care of themselves-consequently of infants." Lord Macclesfield, Eyre v. Countess of Shaftesbury, 2 P. W. 123; and see Lord Hardwicke, Butler v. Freeman, Amb. 302; Hughes v. Science, cited Blunt's Note, ib.

(m) This jurisdiction, as before observed, is not committed to the Chancellor, like the care of idiots and lunatics, which commenced before the Court of Chancery was established, but to the court, and is equally exercised by the Master of the Rolls; the appeal, also, is to the House of Lords, as in an ordinary suit. 2 Fonbl. 231-2.

614

Modern Jurisdiction as regards Infants.

Lord

this as in every other instance in which its jurisdiction is exercised, just as this jurisdiction was in fact committed to the Roman Prætor. Eldon appears clearly to have considered that there was a general delegation of the care of all infants to the Court of Chancery. In the case of Wellesley v. Duke of Beaufort (a), his lordship, in observing on the argument that the court had not exercised the jurisdiction, unless where there was property of the infant to be taken care of by the court, used the following expressions: "Now, whether that be an accurate view of the law or not-whether it is founded on what Lord Hardwicke says in the case of Butler v. Freeman (b), 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 [*615] 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 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 the court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically only when it has the means of doing so, that is by its having the means of applying property for the use and maintenance of the infants" (c). In another case, the same distinguished judge alluded to the delegated prerogative jurisdiction in the following terms: "I have no jurisdiction to prevent the commission of crimes, excepting, of course, such cases as belong to the protection of infants, where a dealing with an infant may amount to a crime, an exception arising from that peculiar jurisdiction of the court" (d). The last observations apply to the protection of the person; property here cannot be requisite to found the jurisdiction, though it is not likely to be called into action where there is none.

So far then as regards the grounds of the jurisdiction over infants and their property, that of the Chancellor and of the Roman Præses may, perhaps, be considered as almost identical; and as to the mode of its exercise, a comparison of the short summaries of the leading principles of each, which are contained in the preceding pages, may lead to the conclusion, that the Institutes of Justinian, and the 26th and 27th Books of the Digest, have been occasionally consulted, if not resorted to as authority.

Part of the jurisdiction of the Court of Chancery, namely, that which was exercised over the king's wards, was transferred by the statute 32 Hen. VIII. c. 46, to the Court of Wards and Liveries, but that statute did not affect the general jurisdiction of the court; and on the abolition of the Court of Wards at the Restoration, the ancient jurisdiction which had been so removed, returned to the Court of Chancery (e).

21.

(a) 2 Russel, 20.

(b) Ambler, 303.

(d) Gee v. Pritchard, 2 Swanst. 413.

(e) Lord Hardwicke, Hughes v. Science, ubi sup. Lord Com. Jekyll, Ĭ P. Wms. 119; it was the same as regards idiots, lunatics, and charities, ibid.

Rules as regards Infants, parties to Suits-Stat. 1 W. 4, c. 60. *616

*SECTION IV.-General Rules of Practice and Procedure in Suits by and against Infants-Posthumous Children.

An infant might sue by his next friend (a). It has already been incidentally noticed that, generally speaking, his infancy was not permitted. to be an obstacle to the attainment of justice against him. An infant was not allowed to derive advantage from another's fraud, nor was his being an infant an impediment to obtaining a decree against him in such a case (b).

In the 12 Eliz. an infant was committed to the Fleet for not obeying a decree (c). In the 37 Eliz. an infant heir was ordered to perform a decree made against him during his minority (d). In the report of Weston v. Talpett, 37 Eliz., it is stated that an infant shall be bound till he come of age, and undo it by bill (e). In the case of Cary v. Berty, A. D. 1696, the rule of the Court of Chancery is stated to be, that no decree shall be made against an infant without having a day given him to show cause after he comes of age (ƒ). In some cases infancy stopped the suit thus:-When an infant was sued at law on the specialty of his ancestor, he might plead that he was an infant, and that he ought not to answer till he was of age, upon which, in legal language, the parol demurred, that is, all further proceedings were stayed till the infant attained twenty-one (g); a corresponding rule was adopted by the Court of Chancery, and the parol was allowed to demur in that court when the suit was by creditors to affect lands which had descended on an infant heir (h). By consequence no sale of such real estates where a conveyance by an infant was necessary, could be effected until the infant came of age (i). Where a purchaser sought to recover an estate vested in an infant, the form of decree, temp. James I., was, that the plaintiff should hold and enjoy against the infant, he to convey when he comes of age (k). The practice, as regards creditors seeking to affect real estate vested in an infant, has been altered by a late statute (1): by the 10th Section, in suits for payment of debts, the parol is not to demur, and the suit is to go on in the same manner as any suit against *in[*617] fants where the parol did not demur; and by the 11th, the court may order the infant to convey where estates vested in an infant are ordered to be sold for payment of debts (m); and by stat. 1 William IV. c. 60, where any land shall have been contracted to be sold, and a specific performance of the contract shall be decreed in the life of the

(a) Cal. ii. 19, temp. Hen. VI.; Saunder v. Saunder, ib. ii. 57. 59, temp. Edw. IV. (b) Altham v. Lord Morley, 6 Eliz. Toth.

172.

(d) Also 2 Car. I. and Jas. I., Toth. 236. (e) Toth. 172. So he may now impeach a decree for good cause, as fraud, collusion, or error, by original bill, a bill of review, or supplemental bill in the nature of a bill of review. Daniel, Pr. i. 222, 1st ed. (f) 2 Vern. 342.

(2) 1 Will. IV., c. 47, § 10 & 11.

(m) But in all other cases where a conveyance is required from an infant, the law remains as before, and a day to show cause must be inserted in the decree. Daniel i. 225, et v. ib. 226. The cases on this subject are collected, and the effect of the Act

(g) Com. Dig. Enfant (D 3); Pleader (2 explained, by Mr. Shelford, On Real ProE 3); Daniel i. 222, 1st ed.

perty Acts, p. 489,

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