For such bonds, although good at law, yet being introductive of infinite mischief, have upon great consideration been condemned in equity. 3 P. Will. 394. [Ib. 76. And see Herrington v. Du Chatel, 1 Bro. 124. (a)]

But a guardian, upon account, shall have allowance of all reasonable costs and expences in all things. Litt. § 123.

And if he receive the rents and profits, and be robbed without his default or negligence, he shall be discharged thereof. 1 Inst. 89.

By the statute of the 4 An. c. 16. actions of account may be brought against the executors or administrators of guardians.

By the 6 An. c. 18. § 5. Any person who as guardian or trustee for any infant shall hold over after the determination of the particular estate, without consent of the person next entitled, shall be adjudged a trespasser, and shall pay damages to the value of the profits received.

By the 7 An. c. 19. § 1. Infants seized or possessed of lands in trust, or by way of mortgage, shall and may, on direction of a court of equity, signified by an order made on hearing all parties, on petition of the person for whom such infant shall [122] be seized in trust, or the mortgagor, or guardian of such infant, convey and assure the said lands, as such court shall direct.

[By 4 G. 3. c. 16. § 1. the same provision applies where such lands, &c. are situate within the duchy of Lancaster, or in either of the counties palatine, or in Wales; under direction of the court of duchy chamber of Lancaster, or of exchequer of Chester, of the courts of chancery, of Lancaster, and Durham, and of great sessions in Wales. By 7 A. c. 19. § 2. and 4 G. 3. c. 16. § 2. such infants being only trustees or mortgagors may be compelled by such order to make such conveyances in like manner as trustees or mortgagees of full age.]

By the 29 G. 2. c. 31. Guardians on application to a court of equity, may obtain an order for infants to surrender leases, in order to accept new ones.

[And by the 4 G. 4. c. 76. (tit. Tarriage.) Guardians may consent to the marriage of such infants.]

And may bring such actions in relation thereto, as by law a guardian in common socage might do] And he may also submit matters to arbitration; for though the infant cannot submit to an award, yet the guardian may do it for him, and bind himself that the infant shall perform it. Comb. 318.

An infant may sue either by his guardian or next friend;

(a) If the consideration of such a bond is void as contrary to general policy, upon the principles laid down by the court of C. B. in Collins v. Blantern, 2 Wils. 347. it might be pleaded at law.

Guardians to natural children.

Appointing of executors.

but must defend by his guardian. [Simpson v. Jackson,] Cro.

Ja. 641.

And if an infant refuseth to name a guardian to appear by; the plaintiff, by order of the court, may do it for him. [Stone v. Atwoll. Shipman v. Stephens, 2 Wils. 50. S. P.] Str. 1076.

And the prochein amy, or next friend, need not to be a relation; but he must be a person of substance, because liable to costs. 1 Atk. 570.

And when an infant brings an action by his guardian, the warrant for him to appear by guardian ought to be entered upon record, because it is the act of the court; for the court takes care of infants, that none shall sue for them, but those that are responsible; for if the infant be prejudiced, he may have this action against him. [Pechey v. Harrison,] Ld. Raym. 232.

But the suit is not in the name of the guardian, but of the infant; for at this day a guardian doth not act in any cause for a minor in his own name, as guardian; but the minor acts in his own name by his guardian. 1 Ought. 337. 359.

Though, strictly speaking, testamentary guardians cannot be appointed to natural children, yet on the petition of the infant, and the consent of the guardians named by the putative father, the court of chancery will appoint them, without reference to the master. Ward v. St. Paul, 2 Bro. C. C. 583. [Peckham v. Peckham, 2 Cox. 46. 2 Bro. C. C. 584. S. P.] And in The King v. Cornforth, 2 Stra. 1162., the court of king's bench granted an information against the defendant for taking away a natural daughter under sixteen, from under the care of her putative father, being of opinion this was within 4 & 5 P. & M. c. 8. § 3.

8. By the 9 & 10W. c. 32. Persons [denying the Trinity (5)] or asserting that there are more gods than one, or denying the [123] christian religion to be true, or the holy scriptures to be of divine authority, shall for the second offence be disabled to be ex

ecutors.

By the 5 G. 1. c. 27. § 3. Artificers going out of the kingdom, and exercising their trades in foreign parts, shall be incapable of the office of executor.

And by the acts for the qualification for offices, persons not having taken the oaths and performed the other requisites for qualifying, who shall execute their respective offices after the time limited for their qualification shall be expired, shall be disabled to be executors.

An infant may be made executor, how young soever he be. Swin. 331.

And if the infant executor be so young, that he hath no discretion (for it is not only lawful to make such an one executor,

(5) Repealed, as far as relates to denying the Trinity by 53 Geo. 3. c. 160. § 1.

but also the child in the mother's womb and unborn at the death. of the testator); in that case the ordinary, or other to whom the approbation of the testament appertaineth, after the birth of the child, doth commit the execution of the will to the tutor of the child for the child's behoof, until he be able to execute the same himself; which tutor hath authority to deal as executor until the child be able to undertake the executorship, that is to say, until he be of the age of seventeen years. (6) During which minority, the administrator to the child's use cannot sell or alienate any of the goods of the deceased, unless it be upon necessity; as for the payment of the deceased's debts, or that the goods would otherwise perish; nor let a lease for a longer term than whilst the executor shall be in minority, because having that office for the good and benefit of the child only, he may not do any thing to his prejudice. Swin. 359, 360. (6)

And after his age of seventeen years, before he shall come to the age of twenty-one, an act done by such infant as executor, as (for instance) the releasing of a debt due to the testator, or the selling or distributing of the testator's goods, is said to be sufficient in law (6): Which is to be understood, upon true payment and satisfaction of the due to the deceased, made to the executor in minority; for then he may acquit and discharge the debtor for so much as he doth receive; for therein he doth perform the office and duty of an executor, which he is enabled to do; and so doing, his act shall bind him. But if he shall release without satisfaction, this act is not according to the office and duty of an executor; and therefore being without the compass of his office and duty, shall not bind or bar him from recovery thereof: for if it should, then should it be a devastavit, [124] and charge the minor out of his own proper goods; which cannot be by law for an infant may better his estate, but not make it worse, by contracting with or acquitting of another person. Swin. 358, 359. 2 Bac. Abr. 377.

M. 1730. Jones and The Earl of Strafford. In the case where an administration is granted during the minority of an infant executrix being under the age of seventeen years, and she marries a husband of age, King lord chancellor and Raymond chief justice strongly inclined against the opinion reported by lord Coke in Prince's case, that such administration during the mi

(6) But by 38 Geo. 3. c. 87. § 6, 7. (extended to Ireland by 58 Geo. 3. c 81. § 1, 2.) where an infant is sole executor, administration with the will annexed shall be granted to his guardian, or to such other person as the spiritual court shall think fit, until such infant has attained the full age of twenty-one years; at which period, and not before, probate shall be granted to him. And the person to whom administration shall be granted, shall have the same powers vested in him as an administrator, durante minore ætate, of the next of kin ; and see infra, IV. 2. 14.

[125]

nority of the executrix is determined: the same being extrajudicial in that case, and not taken notice of by other cotemporary reporters; and the author of the book intitled The Office of Executors, mentioning this opinion, a little marvels thereat, considering (as he observes) that these things are managed in the spiritual court, and by the canon law, which intermeddles not with the husband in the wife's case; and that by that law, and not by the common law, comes in this limitation of seventeen years; and he adds, that he hath seen that case otherwise reported in this point. 3 P. Will. 88.

Swinburne says, If a wife during the coverture be named executrix, she alone cannot sue for any debt due to the testator, without her husband. But (he says) she alone may do an act extrajudicial, as the paying of debts or legacies, or the receiving or releasing of any debts due to the testator. Swin. 417.

And the husband and wife being but one person in law, she cannot be executrix without his assent; for if she might, then he would be executor against his will: therefore, if she is made executrix, she cannot bring an action alone, but her husband must join with her; and if he should refuse, he cannot be compelled, nor can she be compelled to plead without her husband. Swin. 417, 418.

But (he says) although she cannot sue or be sued without him, yet she may deliver any of the testator's goods to another to keep; and may pay legacies, and receive debts, and give acquittances without her husband; and if any devastavit is made by giving acquittances, it shall bind them both, because she could not administer without his assent; and it shall be accounted his folly to suffer such a person to administer. Swin. 418.

But it seemeth that this must be understood only according to the spiritual law, which in this case maketh no difference betwixt married and sole: for otherwise it is by the common law.

For by the common law, the assent to a legacy by a feme covert executrix is not good, unless her husband assent to it also: otherwise it is void: but the assent to such legacy by her husband is good. Law of Ex. 264. 2 Bac. Abr. 378.

And the release of a feme covert executrix is not good; for she can do nothing to the prejudice of her husband: but without question the release of the husband is good. Curson, 53. 1 Roll's Abr. 924.

And this not only during the marriage, but also after the death of the husband. But if the wife die, the husband cannot convert any of the goods and chattels belonging to the first testator to his own proper use; for of such goods the wife herself may make a testament (Swinburne says) appointing an executor, without the licence of her husband. Swin. 417. (b)

(b) Vide supra, I. 7.

And if the husband commits waste, and then she dies; there is no remedy at common law against her husband, but only in the spiritual court, where he will be compelled to make restitution. 1 Roll's Abr. 919.

In the case of Taylor and Allen, Oct. 29. 1741. The testator made the defendant Allen, who was a feme covert, his executrix, the husband being then in England, but at the death of the testator the defendant's husband was in the West Indies. It was moved for an injunction to restrain the defendant from getting in the assets of her testator, and for a receiver to be appointed. By lord Hardwicke: There are several instances where this court hath interposed to prevent an executor from getting assets of a testator into his hands upon particular circumstances; and this is one of those cases, for the husband being in the West Indies, and not amenable to the process of this court, the plaintiff can have no remedy, if the executrix should waste the assets, or refuse to pay, because the husband must be joined in the action. And a receiver was appointed, to collect in the assets, and to bring actions in the name of the executrix for recovery of debts due to the testator; on giving security to indemnify the executrix and her husband on account of such actions brought. 2 Atk. [126]

213.

9. Although an executor becomes a bankrupt, yet adminis- [Executor, tration cannot be committed to another; but if an executor bankrupt, become non compos, the spiritual court may commit administration. 2 Bac. Abr. 376. (7)

And in the court of chancery, forasmuch as an executor is considered only as a trustee; if he be insolvent, that court will oblige him, as they will any other trustee, to give security before he enters upon the trust. 2 Bac. Abr. 377. (c)

(7) Hill v. Mills, 1 Salk. R. 36. The appointment by formal instru. ment, of a party to be an executor, which is in law a beneficial office, can only be revoked expressly or by necessary implication. Where, therefore, by a first appointment, A., B., and C., were made executors, and by two codicils B. and C.'s appointments were revoked, and D. and E. were named in their places, this does not revoke the appointment of A., who was not noticed in the subsequent alterations, and A., D., and E. are the executors. Sherard v. Sherard, 2 Phil. R. 251. An executor for whom an appearance had been given may be dismissed; for it is not unusual for the court to dismiss an executor, who has not intermeddled with the effects, or gone to such a length in a cause as to render himself liable to costs. Panchard v. Weger, 1 Phill. Rep. 212.

(c) If it appear that an executor is insolvent, or the fund in danger,

the court will appoint a receiver, or order as much as he admits to have in hand to be paid into the bank. Ex parte Ellis, 1 Atk. 101. Strange v. Harris, 3 Bro. C. C. 365. ; [see also Duncumbar v. Stint,

or non

compos.]