person, except a popish recusant, either in possession or reversion, till such child attains the age of one-and-twenty years (6). These are called guardians by statute, or testamentary guardians. There are also special guardians by custom of London and other places (o); but they are particular exceptions, and do not fall under the general law.

dians.

The power and reciprocal duty of a guardian and ward are Power of guarthe same pro tempore, as that of a father and child; and therefore I shall not repeat them: but shall only add, that the guardian, when the ward comes of age, is bound to give him [*463 ] an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of Chancery, acting under its direction, and accounting annually before the .officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes will proceed to the removal of him, and appoint another in his stead (p).

2. Let us next consider the ward or person within age, for 2. The ward. whose assistance and support these guardians are constituted by law; or who it is that is said to be within age. The ages of male and female are different for different purposes. A male at twelve years old may take the oath of allegiance; at fourteen is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his dis(0) Co. Lit. 88. (p) 1 Sid. 424; 1 P. Will. 703.

his estate and property.

A father cannot appoint guardians under this statute to a natural child; but where he has named guardians by his will to an illegitimate child, the court of Chancery will appoint the same persons guardians without any reference to a master for his approbation. (2 Bro. 583).-CH.

(6) By this statute, the father may dispose of the guardianship of any child unmarried under the age of twentyone, by deed or will, executed in the presence of two or more witnesses, till such child attains the age of twentyone, or for any less time. And the guardian so appointed has the tuition of the ward, and the management of

cretion be actually proved, may make his testament of his personal estate; at seventeen may be an executor; and at twentyone is at his own disposal, and may alien his lands, goods, and chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is entitled to dower; at twelve is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty-one may dispose of herself and her lands. So that full age in male or female is twentyone years, which age is completed on the day preceding the anniversary of a person's birth (q) (7); who till that time is an infant, and so styled in law. Among the antient Greeks and [*464] Romans, women were never of age, but subject to perpetual guardianship (r), unless when married, "nisi convenissent in

(q) Salk. 44, 625; Lord Raym. 480, 1096; Toder v. Sansam, Dom. Proc. 27 Feb. 1775.

(r) Pott. Antiq. b. 4, c. 11; Cic. pro Muren. 12.

(7) If he is born on the 1st of Ja-
nuary, he is of age to do any legal act
on the morning of the last day of De-
cember, though he may not have lived
twenty-one years, by nearly forty-eight
hours; the reason assigned is, that in
law there is no fraction of a day; and
if the birth were on the first second of
one day, and the act on the last se-
cond of the other, then twenty-one
years would be complete; and in the
law it is the same whether a thing is
done upon one moment of the day or
on another.-CH.

[Our law rejects fractions of a day
more generally than the civil law does;
(Lester v. Garland, 15 Ves. 257; Rey-
nolds v. Nelson, 5 Mad. 61); but there
are cases in which it may be abso-
lutely necessary to determine the rights
of parties by their actual priority on
one and the same day. (Ex parte
Dobree, 8 Ves. 83; Godson v. Sanc-
tuary, 4 Barn. & Adol. 264; 1 Nev.
& M. 57, S. C.).
fiction of law to

As it is a mere consider the whole

day as one particle of time, and as the sole object of legal fictions is, or ought to be, to promote the ends of justice, whenever that object would be best answered by disregarding the common maxim, it may, on such occasions, be laid aside. (Wydown's case, 14 Ves. 87; see post, Vol. 2, p. 141, n.) That, in computing time from an act or an event, when the law is not express as to the mode of computation, there is no inflexible rule for including, or excluding, the day on which such act was done, or such event took place; but that the court before which the question is brought is at liberty to look at the circumstances of the individual case, see Lester v. Garland, 15 Ves. 254; Pellew v. Inhabitants of Wonford, 9 Barn. & Cress. 144; 4 Man. & R. 140, S. C.; Hardy v. Ryle, 9 Barn. & Cress. 609; 4 Man. & R. 299, S. C.; and see post, Vol. 2, p. 277. A bill is now (1836) pending before parliament relative to this subject.-ED.]

in

manum viri:” and, when that perpetual tutelage wore away process of time, we find that, in females as well as males, full age was not till twenty-five years (s). Thus, by the constitution of different kingdoms, this period, which is merely arbitrary, and juris positivi, is fixed at different times. Scotland agrees with England in this point; both probably copying from the old Saxon constitutions on the continent, which extended the age of minority "ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt" (t); but in Naples they are of full age at eighteen; in France, with regard to marriage, not till thirty; and in Holland, at twenty-five (8).

privileges and

3. Infants have various privileges, and various disabilities: 3. Infants, their but their very disabilities are privileges; in order to secure disabilities. them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise (u): but he may sue either by his guardian, or prochein amy, his next friend who is not his guardian. This prochein amy may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his prochein amy (9), institutes a suit in

(s) Inst. 1. 23. 1.

(t) Stiernhook de Jure Sueonum, 1. 2, c. 2. This is also the period when the king, as well as the subject, arrives

(8) Some parents and testators give their estates to young persons, but with a condition or restriction that they shall not have possession until they are twenty-two or twenty-five.

The practice is unwise, because at the age of twenty-one they are competent to convey those contingent estates, and probably upon much more injurious terms than if they were in possession.-CH.

(9) A court of equity will not be disposed to throw difficulties in the way of such a suit, by directing the prochein amy to give security for costs; for the case of an infant differs materially from that of a feme coverte, who selects her own next friend. (Pennington v. Alvin, 1 Sim. & Stu. 265; Davenport v. Da

at full age in Modern Sweden. (Mod.
Un. Hist. xxxiii. 220.

(u) Co. Lit. 135.

venport, Ibid, 101; and see ante, p.
444, n. 31).

A new prochein amy cannot be sub-
stituted, and the party first named as
such be allowed to withdraw, unless
the latter will give security for all costs
incurred in his time. (Witts v. Camp-
bell, 12 Ves. 493; Melling v. Melling,
4 Mad. 261).

A plaintiff may, on coming of age, abandon a suit commenced on his behalf whilst he was an infant; but he cannot leave the prochein amy to pay the costs; unless he can shew that the bill was improperly filed: if this be not established, the suit will not be dismissed, except on condition that the (late infant) plaintiff shall give an undertaking to pay the costs both of the de

equity against a fraudulent guardian. In criminal cases, an infant of the age of fourteen years may be capitally punished for any capital offence (w): but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the infant shall, generally speaking, be judged prima facie innocent; yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death (10), though he hath not attained to years [*465] of puberty or discretion (). And Sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and, in such cases, the maxim of law is, that malitia supplet ætatem (11). So, also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges (y).

With regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters (12): but this may

(w) 1 Hal. P. C. 25.

(9) Foster, 72.

fendant and the next friend. (Anon. 4
Mad. 461). But where, after an issue
directed and a verdict found against
him, the prochein amy was dead, and
the infant on whose behalf the bill was
filed did not choose to proceed with it
when he came of age, Lord King, C.,
determined that the defendant could
not, by bringing on the cause, make
the (late) infant liable for costs: (Turn-
er v. Turner, 2 Str. 709): though it
seems that the defendant might, after
a decree, have moved in prosecution of
the suit. (Bracey v. Sandiford, 3 Mad.
468; Lancaster v. Thornton, 1 Dick.
346).

The name of an infant co-plaintiff
may be struck out, on motion, in order
to make him a defendant: (Tapper v.

(x) Ibid. 26.

Norman, 11 Ves. 563): and, it should seem, he cannot in such case be called upon to give security for costs previously incurred, as an adult plaintiff might be required to do. (Lloyd v. Makean, 6 Ves. 145; and see Walker v. Easterley, 6 Ves. 613).

(10) See Vol. 4, pp. 23, 24.

(11) In such cases, I conceive that justice tempered with mercy would inquire whether the malice is of such a hardened degree that a slighter punishment might not eradicate or correct it, and whether a milder sentence might not be sufficient to deter other boys of the same age from a repetition of the crime.-CH.

(12) See Vol. 2, pp. 292, 462, 497, and the notes to pp. 21, 474.

OF GUARDIAN AND WARD.

be said in general, that an infant shall lose nothing by nonclaim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases.

It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any But still to all these manner of contract, that will bind him.

rules there are some exceptions (13): part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true that infants cannot aliene their estates: but infant trustees or mortgagees are enabled to convey, under the direction of the court of Chancery or Exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint (z) (14). Also, it is generally true that an infant can do no legal act: yet an infant who has an advowson may present to the benefice when it becomes void (a) (15). For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk, who, if unfit, may be rejected by the bishop, rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse (16) to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he (z) Stat. 7 Ann. c. 19; 4 Geo. III. c. 16.

*

(a) Co. Lit. 172.

[ *466 ]

At

(13) If an infant practises a fraud, he is liable for the consequences. law an infant is liable in tort, and cannot plead his infancy; as where (a very strong case) an action of assumpsit was brought against an infant for money embezzled. (Cory v. Gertcken, 2 Mad. 49; Earl of Buckinghamshire v. Drury, 2 Eden, 72; Evroy v. Nicholas, 2 Eq. Ca. Ab. 489; Watts v. Cresswell, Ibid. 515; Beckett v. Cordley, 1 Br. 358; Savage v. Foster, 9 Mod. 37).

(14) The acts cited by Blackstone for this position have been repealed,