Page images
PDF
EPUB

ILLEGITIMATE CHILDREN.

127

A bastard has no rights but such as he can acquire, for he can inherit nothing, being looked upon as the son of nobody, yet he may gain a name by reputation, though he has none by inheritance (f). A bastard cannot be heir to any one, neither can he have heirs but of his own body; for being nullius filius, he is of kin to nobody, and has no ancestor from whom any inheritable blood can be derived; and can only be made legitimate by act of Parliament (g). To authorise the marriage of a bastard under twenty-one, the consent of his father or mother is not required, and is of no avail; but a guardian may be appointed by the Court of Chancery for the purpose, or a license may be granted on oath made that there is no person authorised to give consent. And it may be added, that though in general a father may appoint a guardian for his infant child, in the event of his decease, he has no such privilege if the child be illegitimate (h).

CHAP. XVI.

GUARDIAN AND WARD.

[See 1 Black. Com. ch. 17; 2 Steph. Com. B. III. ch. 4.]

Guardians are of several kinds: 1. 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 the child for the profits. By the construction of 4 & 5 Phil. and Mary, c. 8, the father may assign a guardian to any woman-child under the age of sixteen; and if none be so assigned, the mother shall be guardian (a). 2. Guardians for nurture, which are of course the father or mother, till the infant attain the age of fourteen years; and, indeed, substantially, till he attains the age of twenty-one (b). 3. Guardians in socage, or by the common law. These take place only when the minor is entitled to some estates in lands, and then this species of guardianship devolves upon his next of kin, to whom the inheritance cannot possibly descend; for the law judges it improper to trust the person of an infant in his hands, who may by possibility become heir to him. These guardians in socage, like those for

GUARDIAN AND WARD.

129

nurture, continue only till the minor is fourteen years of age, except in the case of gavelkind lands; for then, in both cases, he is presumed to have discretion so far as to choose his own guardian (c). 4. Testamentary guardians are created by 12 Car. 2, c. 24, which 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 attain the age of twenty-one years (d). 5. Guardianship by appointment of the Lord Chancellor. The Court of Chancery, if application be made on the behalf of an infant (whether legitimate or illegitimate), having, or in some cases not having property, who has no other guardian, will appoint him one for protection both of his person and estate; and has a right to exercise this jurisdiction, if sufficient reason should appear, notwithstanding the existence of a guardian in socage; and though where there is a guardian under the statute, able and willing to act, the court is not entitled to remove him, it will regulate his conduct, or appoint some other person to superintend the infant and his estate, where any case arises to call for such interposition (e). Under the 3 & 4 Vict. c. 90, the Court of Chancery is empowered to take away infants convicted for felony out of the control of their parents or other guardians (if it shall appear expedient), and to assign the custody of them to such other persons as may be willing to be entrusted with the charge (f). 6. There is a guardianship ad litem, that is, to sue or defend for the infant (g).

There are also special guardians by custom of London and other places; but they are particular exceptions, and do not fall under the general law. The power and reciprocal duty of guardian and

ward are the same, pro tempore, as that of a father and child; but the guardian, when the ward comes of age, is bound to account, and shall answer for all losses by his wilful default or negligence (h). The practice of many guardians, therefore, is to apply, account to, and act under the direction of the Court of Chancery; for the Chancellor, by right derived from the Crown, is the general and supreme guardian of all infants, as well as idiots and lunatics.

CHAP. XVII.

PROPERTY IN GENERAL.

[See 2 Black. Com. chaps. 2, 5, and 6; 1 Steph. Com. chaps. 1 and 2.]

Having in the preceding chapters considered persons, we have have now to treat of property.

Property is distributed into two kinds, real and personal. Real property is such as is permanent, fixed, and immoveable, and the rights and profits annexed to or issuing out of these, as lands, tenements, and hereditaments, and incorporeal rights thereout. Personal property consists in goods, money, and all other moveables, which may attend the owner's person wherever he thinks proper to go.

Land.]-Land is a word of a very extensive signification, and comprehends all things of a permanent, substantial nature, not only gardens, arable grounds, meadows, pastures, moors, waters, rivers, marshes, furze, heath, but also messuages-that is, houses, tofts, or places where houses once stood, mills, castles, &c., in short, any ground, soil, or earth whatsoever, with all buildings thereon. Land also is of indefinite extent, upwards as well as downwards, cujus est solum ejus est usque ad cœlum (a); and

« PreviousContinue »