however, by the 20th section of 15 & 16 Vict. c. 86, it is enacted, that "It shall be lawful for the Court, upon the application of any defendant in any suit, whether commenced by bill or claim, but as to suits commenced by bill, where the defendant is required to answer the plaintiff's bill, not until he has put in a full and sufficient answer to the bill, unless the Court shall make any order to the contrary, or make an order for the production by the plaintiff in such suit, on oath, of such of the documents in his possession or power, relating to the matters in question in the suit as the Court shall think right, and the Court may deal with such documents, when produced, in such manner as shall appear just." 1

It will be observed, that this order cannot be obtained by the defendant until he has answered the bill, so that he is not enabled to obtain an inspection of documents, for the purpose of enabling him to discover how to frame his defence. The practice appears to be the same with respect to the plaintiff as before set forth with respect to a defendant. The plaintiff will have to make an affidavit, similar in form to that to be made by a defendant; 2 after the affidavit is made, the same objection to particular documents may

be made.

No affidavit, however, on the part of the defendant is necessary to support the application, nor does delay in applying deprive him of his right to an order. There will also be the same necessity on the part of the defendant to show an admission by the plaintiff of possession of the required documents.*

It will be recollected that, by the 19th section of the same Act, the defendant may, without filing a cross-bill, exhibit interrogatories for the examination of the plaintiff, to which shall be prefixed a concise statement of the subjects on which a discovery is plication of the other party, in any stage of the suit, the party so having them in his possession, or under his control, will be compelled to deposit them in the hands of an officer of the Court, for the inspection of the party making such application, and that such party may take copies thereof, if necessary. Kelly v. Eckford, 5 Paige, 548.

1 This section does not enable the defendant to obtain an order for the production of documents in the possession of a co-defendant. Attorney-General v. Clapham, 10 Hare, App. 68; Barbridge v. Robinson, 2 Mac. & G. 244.

2

Ante, p. 1374; and see Attorney-General v. Clapham, 10 Hare, App. 68; Fiott v. Mullens, 16 Jur. 946; Rochdale Canal Company v. King, 15 Beav. 11. Rochdale Canal Company v. King, 15 Beav. 11.

4 As to what constitutes a sufficient admission, see Lamb v. Orton, 1 Drew, 414; Wing v. Harvey, 10 Hare, App. 68;, Reynell v. Sprye, 1 De Gex, M. & G. 656.

sought. The defendant cannot, under this section, file interrogatories for the examination of the plaintiff until he has put in a sufficient answer, if one is demanded from him.

These interrogatories are prepared and filed precisely in the same manner as interrogatories for the examination of a defendant on behalf of the plaintiff. So also the answer to the interrogatories is regulated by the same practice as the answer of a defendant, and if further time be required it is obtained in a similar

manner.

SECTION IV.

Application for the Appointment of Guardians and Orders for

Maintenance.

As a general rule, none of the powers or remedies appertaining to the original jurisdiction of the Court of Chancery can be called into operation until a bill has been regularly filed and a suit duly instituted. Exceptions, however, to this rule have now, in some instances, been established. In very many cases special powers have been conferred upon the Court by Acts of Parliament, and the statutes usually direct that the jurisdiction they create shall be exercised in a summary manner upon petition. But there is one instance of a portion of the original jurisdiction of Chancery being exercised upon petition without suit, and by the recent changes in practice this jurisdiction is now exercised by a Judge in chambers. This exception to the general rule occurs where a guardian to the person, or estate of an infant is appointed, or an order for maintenance out of his property is made in a summary manner upon petition. The power of appointing guardians and making orders for maintenance, constitutes a part of that general and important jurisdiction which the Court of Chancery exerts for the protection of the property of infants and the safe custody of their persons during their minorities.2

1 It may be observed that, in such cases, ordinary jurisdiction by bill is not excluded except by express enactment (Hyde v. Edward, 12 Beav. 160), though the party refusing to avail himself of the summary jurisdiction may have to pay the costs. Thomas v. Walker, 18 Beav. 521.

2 For the origin and history of this jurisdiction, see Co. Litt. 89 a, note 16; ? Fonb. Tr. Eq. note, p. 226, 5th edit. F. N. B. 232; Wellesley v. The Duke of

When it is desirable that the estate of the infant should be managed by the Court, or that special directions should be given concerning his education, maintenance or custody, a suit must be regularly instituted; in which case, immediately upon the bill being filed, the infant becomes a ward of Court, and thereupon any person wrongfully interfering either with his property or person, may be punished as guilty of a contempt of Court.1

In order that the benefit arising from the protection of the Court may be extended to all cases in which interference is desirable, it is permitted to any person to commence proceedings on behalf of infants, subject, however, to the risk of incurring the censure of the Court, and of being compelled to pay the costs of the suit in the event of its subsequently appearing that the proceedings were improperly instituted.2

So far as the jurisdiction of the Court relates to the appointment of guardians and the protection of the persons of infants, it does not seem absolutely necessary to allege as a foundation for the interference of the Court, that the infant is possessed of property; but, with the exception of appointing a guardian for the purpose of consenting to a marriage, there can scarcely occur a case where the Court can be called upon to interfere unless the infant is possessed of some property. According to Lord Eldon in Wellesley v. The Duke of Beaufort,3 "The Court is not in the habit of exercising jurisdiction over the persons of infants except in cases where the existence of property has brought them within the power of the Court; but it is not from any want of jurisdiction that it does not act, but from a want of means to exercise its jurisdiction, because the Court cannot take upon itself the maintenance of all the children in the kingdom. It can exercise this jurisdiction usefully and practically only where it has the means of doing so, that is to say, by its having the means of applying property for the use and maintenance of the infants."

Beaufort, 2 Russ. 20; 2 Story Eq. Jur. § 1327 et seq.; 2 Kent (10th ed.) 244, Lec. 30.

1 Batley v. Freeman, Amb. 302, and notes there quoted; see also the case of Hughes v. Science, Macpherson on Infants, p. 581; S. C. cited in Blunt's Ambler, 302, note (2); 2 Story Eq. Jur. § 1353.

Starten v. Bartholomew, 6 Beav. 143; Sale v. Sale, 1 Beav. 586; Fox v. Sowercrop, 1 Beav. 583; Raven v. Kere, 2 Phil. 692.

2 Russ. 20; Beattie v. Johnson, 1 Phil. 30; Re Spence, 2 Phil. 252; Re Fynn, 2 De G. & Sm. 481.

The cases, however, in which an infant and his property are placed under the protection of the Court in the course of a suit regularly instituted, present no peculiarities to require a detailed explanation in this place; but a summary jurisdiction has arisen under which the Courts of Equity are enabled to afford to infants and their property a certain limited amount of protection upon a summary application in chambers, and it is to this jurisdiction, and to the procedure connected with it, that the present chapter will be devoted.

The exercise of this summary jurisdiction on the part of the Court is limited to the grant of two different kinds of relief: —

First, The appointment of some person to have the custody of the person and estate of an infant, and the care of his education during minority.

Secondly, The grant of some provision for the maintenance of an infant out of his property when no sufficient fund is otherwise available for that purpose.

It is usual for both of these forms of relief to be granted upon the same application, but it will be more convenient first to consider the circumstances under which an order for the appointment of a guardian alone may be obtained.

It is stated that the earliest case upon record of the exercise by the Court of Chancery of this power of appointing a guardian upon petition without suit, "occurred in the year 1696, in the case of Hampden." It appears, however, upon reference to the Registrar's books, that cases of a similar kind occurred at an earlier period.

Where the only object is the appointment of the guardian of the person, there does not seem to be any limit to the jurisdiction of the Court arising from the size of the estate of the infant. In such a case, however large the property may be, the proper course seems to be to apply in chambers, and there is no necessity for filing a bill. The fact of a father of an infant being alive, is not in itself a sufficient reason to prevent the Court interfering; but if a sufficiently strong case is made, a person will be appointed, without suit, to act as guardian during the lifetime of the father. In Ex parte Mountfort, Lord Eldon said, "I have no doubt, that in certain cases the Court will, upon petition, without a bill, ap point, not a guardian, which cannot be during the father's life, but 1 Co. Litt. 89 a, n. 16. 2 Ex relatione, Mr. Monro.

Ex parte Mountfort, 15 Ves. 447, n.

a person to act as guardian, though in modern times the Court has professed to be very cautious upon that." 1

By statute 12 Car. II. c. 24, it was enacted, "That where any person hath or shall have any child or children under the age of twenty-one years, and not married at the time of his death, it shall and may be lawful to and for the father of such child, whether born at the time of the decease of the father, or at that time en ventre sa mère, or whether such father be within the age of twentyone years, or of full age, by deed 2 executed in his lifetime, or by his last will and testament in writing, in the presence of two or more credible witnesses, in such manner and from time to time as 1 The case of Wellesley v. The Duke of Beaufort, 2 Russ. 1, was upon a petition in a cause, but may be referred to for the principles upon which the Court appoints a person to act as guardian during the lifetime of the father; Re Fynn, 2 De G. & Sm. 457; Thomas v. Roberts, 3 De G. & Sm. 758. Whenever a father is guilty of gross ill-treatment or cruelty towards his infant children, or is in constant habits of drunkenness and blasphemy, or low and gross debauchery; or he professes atheistical or irreligious principles; or his domestic associations are such as tend to the corruption and contamination of his children; or he otherwise acts in a manner injurious to the morals or interests of his children; in every such case the Court of Chancery will interfere and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education. 2 Story Eq. Jur. § 1341; Powel v. Cleaver, 2 Bro. C. C. (Perkins's ed.) 500, 501, and notes and cases cited; 1 Macpherson, Infants, (Lond. ed. 1841,) 142, 147. The English cases on this subject are numerous. See some of them cited 2 Story Eq. Jur. § 1341, in note; De Manneville v. De Manneville, 10 Sumner's Vesey, 52, and notes. See, also, ex parte Wollstonecraft, 4 John. Ch. 80; Ex parte Waldron, 13 John. 419; People v. Mercien, 8 Paige, 47; U. States v. Green, 3 Mason, 482; In re Mitchell, R. M. Charlt. 489, 494, 495; 2 Kent (10th ed.) 245, 246, and notes; Ahrenfeldt v. Ahrenfeldt, 1 Hoff. Ch. R. 497.

In some of the United States it is expressly provided by statute that the father may by deed, executed in his lifetime, dispose of the custody and tuition of his children during their minority. 2 Kent (10th ed.) 250, note.

3

In Massachusetts, " a father may by his last will in writing appoint guardians for his children, whether born at the time of making the will or afterwards, to continue during the minority of the child, or a less time." Genl. Sts. c. 109, s. 5. The will, in such case, must be executed with the formalities required by the general law respecting the execution of wills. Wardwell, appt., decided, Essex Co. Mass., Jan. T. 1865. This power of a father to constitute a guardian by will has been pretty extensively adopted in this country. It is a personal trust, and not assignable. 2 Kent (10th ed.) 249, 250; Eyre v. Shaftesbury, 2 P. Wms. 121; Balch v. Smith, 12 N. Hamp. 441. A will merely appointing a testamentary guardian need not be proved. 2 Kent (10th ed.) 250. See Peyton v. Smith, 2 Dev. & Bat. Eq. 325; M'Allister v. Olmstead, 1 Humph. 210.