69 
GUARDIAN. 
to appoint a guardian of the perfon and eflate, and de¬ 
clared their appointment, except when a fuit was de¬ 
pending, to be an interference with his power as chan¬ 
cellor; and even recommended to .the attorney-general 
to confider whether a quo warranto would not lie in fuCh 
a cafe againft the ecclefiaftieal court. 2 Atk. 631. In a 
fubfequent cafe in the court of king’s-bench, (mifs Cat- 
ley’s,) the power of appointment in the ecclefiaftieal 
courts was confidered as confined to guardians ad litevi, 
and therefore perfedtly infignificant. 3 Burr. 1436. 1 Inji. 
88 b. 
Guardianfhip is cognifable by the temporal courts, 
where a devife is made of it; which courts are to judge 
whether the devife be purfuant to the ftatute. 1 Vent. 
207. The hulband of a woman under age cannot difa- 
vow a guardian made by the court for his wife. 1 Vent. 
185. An infant cannot revoke the authority of his guar¬ 
dian: but the court may difeharge one guardian, and 
aflign another, at their diferetion ; and the juftices of 
nifi prius may aflign a new guardian. Palm. 252. 1 Danv. 
Abr. 604. 
If a woman hath iffue a fon by a former hulband, and 
marries afecond hulband, feifed of focage lands, by whom 
Ihe has ifl'ue another fon, and the hulband and wife die, 
leaving the fecond fon under fourteen, his brother of the 
half-blood lhall be guardian in fpcagb as next of kin, 
but to whom the inheritance cannot defeend. Cro. Elis. 
825. Moor, 6 35. 
It is clearly agreed, that the king, as pater patria, is 
univerfal guardian of all infants, ideots, and lunatics, 
who cannot take care of themfelves; and as this care 
cannot be exercifed otherwife than by appointing them 
proper curators or committees; it feems alfo agreed, 
that the king may, as he has done, delegate the autho¬ 
rity to his chancellor; therefore at this day, the court 
of chancery is the only proper court which hath jurif. 
didtion in appointing and removing guardians, and in 
preventing them and others from abufing their perfons 
or eftates. 2 Inji. 14. 4 Co. 126. And as the court of 
chancery is now inverted with this authority, hence in 
every day’s pradtice we find that court determining, as 
to the right of guardianlhip, who is the next of kin, and 
who the molt proper guardian ; as alfo orders are made 
by that court on petition, or motion, for the provifion 
of infants during any difpute therein; as. likewife guar¬ 
dians removed, or compelled to give fecurity; they and 
others punilhed for abufes committed on infants, and 
effedtual care taken to prevent any abufes intended them 
in their perfons or eftates; all fuch wrongs and inju¬ 
ries being reckoned a contempt of that court, it having, 
by an eftablilhed jurifdiction, the protection of all per¬ 
fons under natural difabilities. 2 Mod. 177. 
As the law hath inverted guardians not with a bare 
authority Only, but alfo with an intereft till the guardian- 
Ihip ceafes ; 1 fo it hath provided feveraf remedies for 
guardians againft thofe who violate that intereft: at com¬ 
mon-law there were remedies both droitural and poffef. 
fory, to recover the guardianlhip, 2 Inji. 90. 9 Co. 72. A 
guardianfhip of a minor is an intereft in the body and 
lands of one within age. Guardians to infants, appointed 
by the court to fue, may acknowledge fatisfadlion upon 
the record, for a debt recovered at law for the infant, 
A guardian in focage may keep courts, in the infant’s 
manors, in his own name, grant copies, &c. He is dominus 
pro tempore, and hath,an intereft in the lands.' Cro. Jac .91. 
Such guardian may let the land for years, and avow in 
his own name and right; and his leflee for years may 
maintain ejedlment: but he cannot prefent to an advow- 
fan, for which he may not lawfully account;.and the 
infant mull prefent, of wluitfoever age. Though it is 
faid, if, the infant be within the age of diferetion, his 
guardian may-prefent. 8 Edzu. II. 10.' 1 Inji. 89. a. 
In another place lord Coke extends the dodtrine fo far 
as to fay that the infant (hall prefent, whatfoever his age 
may be. 3 Inji. 156. But fome fuppofe the guardian to 
Vox. IX. No. 366.- 
have the right of prefetvting in the name of the infant, 
in general; others admit the right of the infant ; but 
add, that if lie be of fuch tender years as not to have 
any diferetion, then the guardian ffiould prefent for him, 
Vin. Abr. tit. Guardian Q. pi. 2. But the law feems now 
fettled in the full extent of lord Coke’s opinion, by a 
determination of lord-chancellor Kitig. An advowfon 
was conveyed to truftees on truft to prefent fuch perfon 
as the grantor, his heirs and affigns, fliould by deed ap¬ 
point: and, on the principle that, an infant of arty age 
may prefent, the chancellor confirmed an appointment 
by an infant heir, though it appeared that the child was 
not a year old, and that the guardian guided the child’s 
hand in making his mark and putting his feal. 2 Eq.Ab. 
Infant B. pi. 3. Vin. Abr. 3 Aik. 710. It (Fill remains how¬ 
ever undecided, whether fhe want of diferetion might 
not induce a court of equity to controul the exercife 
of this right by an infant, in cafe a prefentation fliould 
be obtained without the concurrence of his guardian. 
1 Inf. 89 a. 
A guardian for nurture of the minor, appointed by 
will, hath power to make leafes at will only. Cro. Eliz. 
6 78. A teftamentary guardian cannot make a leafe of the 
infant’s lands; but fuch leafe is abfolutely void. 2 
129. Guardians are to take the profits of the minor’s 
lands, See. to the ufe of the minor, and account for the 
fame : they ought to fell all moveables in a reafonable 
time, and turn them into land or money, except the 
minor is near of age; and may want fuch goods him- 
felf: and they (hall pay intereft for money in their hands, 
which might have been put out at intereft; in which 
cafe it lhall be prefumed the guardians made ufe of it 
themfelves. 3 Salk. 177. 
The power and reciprocal duty of a guardian and ward, 
are the fame pro tempore as that of a parent and child ; but 
the guardian, when the ward comes of age, is bound to 
give him an account of all that he has t ran fa died on his 
behalf, and muft anfwer for all Ioffes by his own wilful 
default or negligence. In order therefore to prevent dif- 
agreeable contefts with young gentlemen, it has become 
a pradlice for many guardians, of large eftates efpecially, 
to indemnify themfelves by applying to the court of 
chancery, adding under its diredtion, and accounting an¬ 
nually before the officers of that court. And that court, 
in cafe any guardian abufes his truft, will check and 
punifti him, and appoint another in his Head. 1 Sid. 424. 
1 P. Wins. 703. 1 Covrn. 463. c. 17. 
By the common-law, guardians in foeage are account¬ 
able to the infant, either when he comes to the age of 
fourteen years, or at any time after, as he thinks fit. 
Co. Lit. 87. And fo is one who is guardian by nature af¬ 
ter the infant’s age of twent.y-one. But the guardian on 
his account, ffiall have allowance of all reafonable ex- 
pences; and if he is robbed of the rents and profits of 
the land, without his default or negligence, lie (hall be 
difeharged thereof upon his account; for he is in the 
nature of a bailiff or fervant to the infant, and under¬ 
takes no otherwife than for his diligence and fidelity. 
Co. Lit. 89 a. But againft a teftamentary or other guar¬ 
dian, whofe authority doth not determine till the infant 
is twenty-one) or being a female, attains that age, or 
marriesj the infant cannot have adtion of account before: 
for the rule of the common-law is, that account ffiall not 
lie while the guardianfhip continues. But in equity the 
infant may by prochein amie fue his guardian for an ac¬ 
count during the minority. 2 Vern. 342. 2P.Wms.119. 
A guardian cannot be charged in account as.a receiver: 
becaule then he would lofe his cofts and expences; thefe 
it is faid being in general allowed only to guardians and 
bailiff's, and not to receivers. See 1 Inji. 89 a. 
A guardian fliall anfwer for what is loft by his fraud, 
negligence, or omifiion ; but not for any cafual events, 
as where the thing had been well, but for fuch an acci¬ 
dent. Lift. 123. By ftatute Mag. Cart. 9 Hen. III. c. 3, 
guardians were to retain the lands till'the heir comes of 
T age. 
