Gambar halaman
PDF
ePub

no fuch procefs, and the mother cannot be compelled to discover the man, with whom the has been criminally connected. This defect of our law, has however in fome measure been supplied by the practice of fome midwives--who in cafes, where a private fettlement had been made, and the women were anxious to conceal the name of the perfon, have refufed to yeild them any affiftance until they discovered the names of their paramours. But the law will not authorise a midwife to refufe her affiftance to a woman in travail, for the purpose of compelling her to difclofe a fecret: and when a midwife is employed and refufes affiftance, for fuch purpose, action would lie against her for fuch a neglect of duty and violation of humanity.

3. The only legal difability to which a baftard is fubjected, is that he is incapable of inheriting, being fometimes called the fon of nobody, and fometimes the fon of the people. This is the only difability, which a bastard, upon the principles of reafon and juftice can be made to fuffer, because he cannot be refponfible and ought not to be punished for the crimes of his parents. But as he cannot come within the legal defcription of an heir, on account of the uncertainty of his father, he must be excluded from this privilege. A bastard is capable of gaining a name by reputation.

CHAPTER SEVENTH.

OF GUARDIAN AND WARD.

THE father is confidered as the natural guardian to his children,

and during their minority has the care of such estate as they may have, and is accountable for the profits to the children, when they arrive to full age, but the common understanding of guardian, is where the father is dead, and the guardian is fubftituted in his ftead and fucceeds to all the powers and duties of the parent. In the investigation of this fubject, I fhall confider, 1. The ages of minors and wards, for different purpofes. 2. The appointment of guardians. 3. Their power and duty. 4. The capacity of minors to contract. 5. Their liability for acts done by them. 6. The mode in which they muft fue and be fued.

1. Perfons

1. Perfons within the age of twenty-one, are, in the language of the law denominated infants, but in common fpeech, minors. Those who are under the government of guardians, are called wards. By statute, males at the age of fourteen and females at the age of twelve, are capable to chufe guardians, m and by common law may confent or difagree to marriage, being then arrived at years of maturity or difcretion, which is called the age of puberty. By the ftatute law, at feventeen years of age, both fexes are nder a capacity to difpofe of their personal estate by will, By common law, at the fame age, a male may be an executor, and a female an executrix. By the statute law, at twenty-one, they become of full age, are liberated from parental power and become free, which is compleated on the day proceeding the birth-day.

By the Roman law, perfons having no fathers, are under the control of tutors till they are fourteen, and curators till they are twenty-five which is the age in all cafes, when they are of full age, fo as to be capable of contracting.

2. • Guardians are appointed by the courts of probate, to minors under the age of fourteen. Minors of the age of fourteen have a right to chufe their guardians, who are to be allowed by the courts of probate. When there are minors of age to chufe guardians, who have neither parents, guardians, or masters, the judges of courts of probate, in whofe diftrict they live or refide, must notify them to appear, and elect guardians, which fuch courts may allow of-In cafe of neglect or refufal, fuch judges may appoint guardians, with the fame powers as if elected by fuch minors. The judges of probate, on allowing or appointing guardians, mu take fufficient fecurity for the faithful difcharge of the truft according to law, and render their account to the judge, or the minor, when he arrives at full age, or fuch other time, as faid court of probate upon complaint to them inade, fall fee caufe to appoint.

It has been adjudged, that where a guardian is appointed to a minor by the court of probate, under the age of chufing one, he is in judgment of law, guardian till the minor arrive at full age, unlefs the guardian be removed from office, or another be chofen after the minor is of fufficient age, or unless the guardian be appointed with exprefs limitation of time.

[blocks in formation]

3 The

" Juftinian's Inftitute. DiKirb. 287.

3. The guardian being confidered as a fubftitute for the father, the confequence is, that the power and duty of guardian and ward, in a great meafure correfpond to that of parent and child. The guardian is intrufted with the care of the perfon and estate of the minor. He has power to do every act that is neceffary for the use and improvement of the estate, and may execute leases of lands.

9

Where one or more joint-tenants, or tenants in common, are minors, the guardians with the affiftance of fuch perfons as the courts of probate fhall appoint, are impowered to make partition with the other tenants, which fhall be conclufive upon the minors, their heirs and affigns. When a minor is interested in a mortgaged or other real eftate, which in equity ought to be conveyed to any other perfon, the court having cognizance may enjoin the guardian under a fuitable penalty, and the guardian is authorifed to make a conveyance in behalf of the minor, that fhall be effectual in law, and if there be no guardian at the time of bringing the fuit, the court may appoint one, with full power.

It is the duty of the guardian to take reasonable and prudent care of the estate of the ward, and to use and improve it in the most advantageous manner. But he cannot maintain an action in his own name, for any injury done to the land of his ward, fuch action must be in the name of the ward.

When the ward arrives at full age, the guardian must account for the rents and profits of the eftate, and fhall be allowed a reasonable compenfation for his expenfe and trouble. He must aufwer for all damages arifing by his misconduct and neglect. Whenever a guardian is appointed, the court of probate take bonds. for a faithful discharge of the truft, and if the guardian mifbehave, and there be danger that he will injure or wafte the eftate, the court on complaint, may put the bond in fuit at any time, and call the guardian to account, which feems to be the proper mode for mi. nors to call on their guardians to account during their minority: but at common law, a minor may inftitute a fuit against his guardian under fuch circumftances, by his next friend. When the minor arrives at full age, and the guardian neglects to account, the bond may be put in fuit, or an action of accouut at common law, may be brought. In

[blocks in formation]

4

Eaftman; vs. Camp, S. C. 1790

[ocr errors]

4. In refpect of the capacity of minors to contract, the general rule is, that minors have the power of making contracts for their benefit, which are voidable by their own act; but that they can never make a contract to their difadvantage, that is obligatory upon them, for fuch contracts are void. If a minor makes a contract for his benefit, that is by which he acquires fomething, as a purchase of lands, or any perfonal property, or where there is a femblance of benefit, he may at full age diffent to the contract and avoid it, or affirm it and render it obligatory but when he has once made a contract to his benefit, he cannot diffent to it, till he becomes of full age: because this would be an act in the nature of a contract, that operates to his difadvantage. Therefore a minor cannot execute a release, or discharge of a beneficial contract, without receiving an adequate confideration. Thus, if a minor holds a note against a man, and executes to him a discharge, the promiffor cannot take advantage of the difcharge, but muft fhew that he has paid the fum due on the note, or he fhall be holden. A receipt under the hand of the minor, fhall not be evidence of the payment of money on a note or other debt, if the minor denies the reception of it; but the party muft make abfolute proof of the payment of money to avoid the note; for it is clearly correfpondent to reafon and juftice, that the payment of a debt, or fum of money due by contract to a minor, shall difcharge the debt, because the reception of the money, is in the nature of a contract to his benefit, and if the contract be obligatory, an actual performance must be effectual to discharge it.

A minor cannot make a contract to his difadvantage, or without an apparent benefit, or femblance of bencût, that will be obligatory, but the fame is abfolutely void. He cannot execute a deed of his lands, or transfer his perfonal property. He cannot obligate himfelf by fimple contract, or specialty. But tho the contract be not binding on the minor, yet it fhall be on the perfon of full age contracting with a minor; for the law refpecting the contracts of minors is intended to protect and fecure them against fraud and impofition, and is calculated folely for their benefit. w Therefore if one deliver goods to a minor upon a contract, knowing him to

# Co. Lit. 2. " Show. 171.

w Sid. 129.

be

be a minor, he fhall not be chargeable in trover, or any other action for them; for the contract being void as to the minor, the delivery shall be confidered as a gift to him.

[ocr errors]

If a minor gives a note, and when he arrives to full age, acknowledges it to be justly due, and promifes to pay it, the note becomes obligatory, and if he pleads infancy in bar, it may be avoided by fuch special matter.

y But to thefe general rules, there are fome exceptions. The acts of an infant which do not touch his intereft, but take effect from an authority which he is trufted to exercife, are binding; as if he be an executor, as he may be when seventeen years of age, by statute; all the acts which he does in performance of that trust, are binding.

::

An act done by an infant, which was right to be done, and which he was compellable by law to do, is obligatory: as if an infant mortgagee, on pay ment of the money due by the mortgagor, reconvey, the deed is valid, and cannot be avoided because by law he might have been compelled to have reconveyed. Lord Mansfield fays, that this privilege is given to minors as a shield and not as a sword, and that therefore it shall never be turned into an offenfive weapon of fraud and injustice.

[ocr errors]

By the common law, a minor can bind himself by his contract for neceffaries, for diet apparel, education, and lodging. But the statute law of this ftate, fuperfedes the common law, and provides that no perfon under the care of a parent, guardian or master, fliall be capable to make any contract, which in the law shall be accounted valid, unlefs authorised or allowed fo to contract, or bargain, by the parent, guardian, or master, and that in such case, the parent, guardian or master, fhall be bound thereby. The action muít be brought on the contract directly against the parent, guardi an, or master, as tho made by them for their benefit. What fhall be deemed an authorifing, or allowing to contract, fo as to bind the parent, or guardian, is not exprefsly mentioned. It has been adjudged by the fuperior court, that a general licence by the guardian, to the minor to trade, fhall render the contracts of the

* Lawrence vs. Gardener, S. C. 1792. 93 Burr. 1802. • Statutes 142. Kirb. 286. 4 Spring vs. Evans S. C. 1795.

minor

z Powel. 34.

« SebelumnyaLanjutkan »