to a third Person, as an Instrument, not privy to the Fraud, it would be different; and so if the Deed is set aside upon paying so much Money; there, till payment, the Estate remains in the Grantee (a).

In general, indeed, where Deeds are set aside for Fraud, they will be permitted to stand as a security for what is really due (b).

CHAP. IV.

INFANTS.

HIS Majesty, as Pater Patriæ, is entitled to the care (c), (not the guardianship) (d), of Infants, and this care is delegated by the King to his Court of Chancery (e), and, as it seems, to that Court only, for the Court of King's Bench has not any of that delegated authority that belongs to the Chancellor (ƒ); neither, it seems, has the Court of Exchequer. "That Court," says a learned Writer, "may appoint a Guardian ad litem; it may also, when the interest of an Infant comes before it, provide for its security; but whether it can appoint a Guardian to an Infant for general purposes where none is appointed, or whether it can, in an equal extent, exercise that protective power which watches over the Interest of Infants in

(a) Hawes and Wyatt, 3 Bro. C. C. 156.

(b) See Wharton v. May, 5 Ves. 69. Purcell v. Macnamara, 14 Ves. 106. Pickett v. Loggon, ibid. 244.

(c) Bract Lib. 3. c. 9. Fleta, Ch. 2. Stamford Prær. 39.

(d) Eyre v. Countess of Shaftsbury, 2 P. Wms. 117.

(e) Berty v. Lord Falkland, 2 Vern. 333, 342. 2 P. Wms. 119; and see 2 Atk. 315. 3 Atk. 305. Butler v. Freeman, Ambl. 301. De Manneville and De Manneville, 10 Ves. 59. (f) 2 P. Wms. 118.

the Court of Chancery, is a point which I do not find any where solemnly determined" (g).

The Court of Chancery, therefore, it seems, has the exclusive care over Infants; and though by Act of Parliament the Court of Wards had a particular power over Infants and Lunatics, yet in every other respect the Law as to Infants continued as before; and when the Court of Wards and Liveries was dissolved by the 12 Car. 2. c. 24, the power of the Court over Infants resulted back to them again in its original extent (h).

The Court of Chancery, however, it must be observed, exercises no control over Infants, unless they are Wards of Court; filing a Bill on their behalf makes them Wards of Court (i).

The strongest instance, perhaps, in which the Court of Chancery has exercised its Jurisdiction in regard to Infants, is where it has taken from a Parent, the custody of its Child; but this has been done in many cases; for though, in general, a Father has a natural and legal right to such Custody (k), yet a Child has been removed from the control of a Father in constant habits of drunkenness and blasphemy (1); and so in case of gross ill treatment (m); and even where (a strong case) the Father had become insolvent (n). Acting under the same power of control,

(g) Treatise of Equity, by Fonbl. 2 vol. 229, in note.

(h) Hill v. Turner, 1 Atk. 516; and see Roach and Garvan, 2 Ves. 159.

() Ambl. 303. Lord Raymond's Case, For. 60, S. C. MS.

(k) Ex parte Hopkins, 3 P. Wms. 154.

(1) Vide Case mentioned in De Manneville v.De Manneville, 10 Ves. 61, 2.

(m) Whitfield v. Hales, 12 Ves. 492.

(n) Wilcox v. Drake, 2 Dick.

631.

a Father has been prevented taking his Child abroad, with an intention to educate him there (o); and even if it be suspected that the Child will be taken abroad, the Court will interfere (p), and oblige the Parent to give security that he will not remove it, or do any act towards or for the purpose of removing it out of the Jurisdiction (q).

If a Child, a Ward of Court, would not be safe, the Chancellor would not permit it even to go to Scotland (r); nor will it, at the instance of a Guar dian, make an order to take the Infant out of its Jurisdiction (s); and if taken out of the Jurisdiction, he will be ordered to bring him home (t)..

As it is beside the plan of this Work to enter into the Common-Law doctrine as to Infants, (of which there is an abundance to be found in the Common-Law Writers,) what is here said will be confined to the peculiar doctrine of the Court of Chancery on that subject; and this, (exclusive of the privilege of Infants, as allowed in the practice of the Court) principally respects, 1st, the Guardianship, 2dly, the Maintenance, and 3dly, the Marriage, of Infants.

1. By the Common Law, a Testator could not by any Testamentary Disposition affect either his Land or the Guardianship of his Children (u); nor does the Guardianship of Children appear to have been made the subject of Testamentary Disposition until the (q) De Manneville v. De Manneville. 10 Ves. 52. (r) Ibid. 56.

(0) Cruse v. Orby Hunter, mentioned in De Manneville and De Manneville, 10 Ves. 55 and 63; and in Ex parte Warner, 4 Bro. 101; and in 1 P. Wms. 704, note 1.

(p) Eyre v. Countess

of

(s) Mountstuart v. Mountstuart, 6 Ves. 363.

(t) Foster v. Denny, 2 Cha. Ca. 237.

12 Car. 2. c. 24 (x), which Statute was drawn by Lord Ch. J. Hale (y), and enables the Father (not the Mother) (), to dispose of the Guardianship of the Child, until twenty-one, but not beyond that period (a): and though a Male Infant marries, the Guardianship does not determine until twenty-one (b); but by the marriage of a Female Infant before that age, the Guardianship is determined (c).

It has been recently decided, upon the Statute, that a Father may by Will dispose of the Guardianship of Children born and to be born, including Children by a second Wife (d). It has been holden also, that a Testamentary appointment of a Guardian is not revoked by a subsequent testamentary appointment, not executed according to the Statute, and not directly importing a Revocation (e).

Strictly speaking, a Father cannot appoint Testamentary Guardians to a natural child; but where he names Persons in his Will as Guardians, the Court, on Petition, will appoint those Persons Guardians, and, as it has been held, without a reference to the Master (ƒ). Where a married Woman was appointed Guardian, the Money of the Infant was ordered to be paid to her upon her separate receipts (g).

(x) Ex parte the Earl of Ilchester, 7 Ves. 370.

(y) Eyre v. Countess of Shaftsbury, 2 P. Wms. 125. (2) Ex parte Edwards, 3 Atk. 519.

(a) Ex parte Ludlow, 2 P. Wms. 638.

(b) Mendes v. Mendes, 3 Atk. 625. S. C. 1 Ves. 90. Roach v. Garvan, 1 Ves. 160.

(c) Ibid.

(d) 7 Ves. p. 348.

(e) Ex parte Earl of Ilchester, 7 Ves. 348.

(f) Ward against St. Paul, 2 Bro. C. C. 583. Peckham v. Peckham, 2 Cox, 46. Sed vid. Elwes v. Const, 10 Feb. 1818, where V. C. Leach held a reference was necessary to see if they were fit and proper persons.

(g) Wallis v. Campbell, 13 Ves. 517.

A Testamentary Guardian, by Statute, has all the remedies at Law which a Father has (h), and his power is considered as a continuation of the paternal Authority (i); but still he is viewed as a Trustee, on whose misbehaviour, or giving occasion of suspicion, the Court of Chancery will interfere (k). And it has been holden, that a Testamentary Guardianship is not assignable (1), it being but a bare Power or Trust; and as it is but an authority coupled with an Interest, if one or more of several Guardians die, the authority survives (m), and will not pass to Executors or Administrators (n).

A Guardian appointed for a Child by a stranger, during the Life of the Parent, is ineffectual (0). "It cannot be conceived," says Lord King, "because another thinks fit to give a Legacy, though never so great, to my Daughters, therefore I am by that means to be deprived of a right, which naturally belongs to me, of being their Guardian (p);" but the Court will take care in such case that a Child is educated according to his expectations (q).

So a Grandfather has no power to appoint Guardians of his Grandson, it being a right vested in the Father; but any one can give his Estate on what conditions he pleases; and there are instances where

(h) Butler against Freeman, Ambl. 302.

(i) Eyre v. Countess of Shaftsbury, 2 P. Wms. 115.

(k) Duke of Beaufort v. Berty, 1 P. Wms. 702.

() Mellish and De Costa, 2 Atk. 14. 2 Mod. 40. Vaugh. 180. 2 Ch. Rep. 237. Eyre v. Countess of Shaftsbury, 2 P.

(m) Eyre v. Countess of Shaftsbury, 2 P. Wms. 103. (n) 2 P. Wms. 121; and see Vaugh. 179, &c.

(0) Powell v. Cleaver, 2 Bro. C. C. 500. Ex parte Warner, 4 Bro. 101.

(p) Ex parte Hopkins, 3 P. Wms. 154.

(q) 2 Bro. C. C. 500. 4 Bro.