whatsoever within my said manor without my consent.] GIVEN under my hand and seal, this

day of

X. Game

keeper to Kill Game, &c.

SIGNED, SEALED, AND DELIVERED, in the presence of

[lord] L. S.

infantry, and styling him an esquire, does not create such a person an esquire, because the lord lieutenant cannot confer honours; and the Court said there was no pretence to call such a gentleman an esquire: Talbot v. Eagle, 1 Taunt. 510. Although, according to Mr. Serjt. Lens's opinion, 2 Burn's Clergymen. Justice, Chetwynd's ed. 505, that "the eldest son of a clergyman is not as such qualified under any of the descriptions of the stat. 22 & 23 Car. 2, c. 25, s. 3; and that it makes no difference in this respect that the father is a Master of Arts in an English university, and in the commission of the peace:" still it seems that a clergyman in the commission of the peace, lord of a manor, would have been considered as not being under the degree of an esquire, according to the description in the repealed statute. The ground of the learned serjeant's opinion perhaps is, that such a clergyman is neither an esquire, nor a "person of higher degree."

As married women and widows are entitled to the same rank Ladies of among each other, as their husbands would respectively have manors. borne between themselves, except such rank be merely professional or official, and unmarried women to the same rank as their eldest brothers would bear among men, during the lives of their fathers (1 Bla. Com. 406, n.), it seems that these ranks must be the criterion by which to judge, whether, as ladies of manors, they were enabled to appoint gamekeepers to seize engines, &c. Willes, C. J., appears to have mistaken the words of the statute, when he says, a lady of a manor cannot bear the title required by the statute of Charles the Second: Mallock v. Eastly, 7 Mod. at p. 488. The daughter of a peer, the widow of a knight, &c., are not under the degree of an esquire, and, most clearly, under the statute of Charles the Second, they had authority to appoint a gamekeeper to seize engines, &c.

authorize an

The person to appoint a gamekeeper under the recent Act The lord of a must (except as to Wales) be dominus pro tempore; for under manor cannot the rule delegatus non potest delegare, a man cannot give or con- other person vey to another the power of appointing a gamekeeper, without a to appoint a conveyance also of the manor itself. Such a power is a mere gamekeeper. emanation of the manor, &c., and inseparable from it. It is a mere shadow, accompanying the substance: Calcroft v. Gibbs,

5 T. R. 20.

In rivers not navigable the proprietors of the land have the FISHERY. right of fishery on their respective sides; and it generally Who have the extends ad filum medium aquæ. But in navigable rivers the right of fishproprietors of the land on each side have it not the fishery is ing in rivers. common; it is, prima facie, in the king, and is public. If any one claims it exclusively, he must show a right. If he can show

Appointment.

Grant of a

XI. APPOINTMENT of a GUARDIAN by an Infant.

KNOW ALL MEN BY THESE PRESENTS, that I [infant], of &c., spinster, aged years, or thereabouts, daughter his wife, also

of -, late of &c., deceased (r), by

a right by prescription, he may then exercise an exclusive right; though the presumption is against him, unless he can prove such a prescriptive right. Therefore he may have an exclusive privilege of fishing, even in an arm of the sea; such a right shall not be presumed, but, on the contrary, prima facie; but it is capable of being proved: Carter v. Murcot, 4 Burr. 2164; Rex v. Ŵharton, 12 Mod. 519; Lord Fitzwater's case, 1 Mod. 105; The Corporation of Orford v. Richardson, 4 T. R. 437. A grant of a several fishery several fishery passes nothing but the liberty of fishing, and not does not pass the ownership in the soil; being therefore an incorporeal and not a territorial hereditament, it cannot be granted even for a term of years without deed: Co. Litt. 4 b.; Duke of Somerset v. Fogwell, 5 B. & Cr. 875. But it should seem that where the owner's claim is founded on prescription, and the terms of the grant are not known, it would be presumed that he was the owner of the soil: 5 B. & C. 886.

the soil.

Stamp, 10s.

ON GUARDIAN

See further, Com. Dig. Justices of the Peace (B. 44); 2 Burn's Justice, 548, 30th ed.; Fish and Fisheries, I.; 3 Edw. 1, c. 1; 2 Inst. 152.

For the appointment of a gamekeeper, under stat. 1 & 2 Will. 4, c. 32, a deed stamp of ten shillings is required. A mere authority to seize nets, &c. requires neither seal nor stamp.

(x) The right of making a guardian by election of the infant SHIP BY ELEC- himself only arises, when, from a defect of law, the infant finds himself wholly unprovided with a guardian: Harg. n. Co. Litt. 88 b. (16).

TION.

Different

kinds of guardianship. Guardian in Focage;

For the purpose of ascertaining when the infant may exercise this right, it will be requisite to state a few particulars concerning the different kinds of guardianship.

Guardianship by socage springs wholly out of tenure; and therefore the title to it cannot arise, unless the infant be seised of the legal estate in lands, or other hereditaments lying in tenure, holden by socage, as most of the lands in England now are: Rex v. Inhabitants of Toddington, 1 Barn. & Ald. 560. As to guardianship by custom, see 2 Watk. Cop. by Cov. 79; Scriv. Cop. 6th ed. 21, 76; Robinson on Gavelkind, 237. As to the custom of London, which is now obsolete, see Frederick v. Frederick, 1 P. Wms. 710; Com. Dig. Guard. (G. 4); Rutter v. Rutter, 1 Vern. 180. This kind of guardianship takes place on a descent only, Quadring v. Downs, 2 Mod. 176, and the title to it is in such of the infants next of blood as cannot have the socage estate, in respect of which the guardianship arises, by descent: Bract. 876; Co. Litt. 87. b. Thus, if the lands have descended to the infant from his father or any paternal relation, his mother, if living, will be his guardian in socage, see Rex v. Sutton, 5 Nev. & M. 353; S. C., 3 A. & E. 597; she not being competent to inherit them. If the infant has no mother, then his next maternal relation will be his guardian. In looking round, however,

deceased, hereby appoint [guardian], of &c., to be the guar- XI. Guardian. dian of my person and estates, and to do, execute, and per

amongst the infant's next of kin for a guardian, it must be borne in mind that the statute, 3 & 4 Will. 4, c. 106 (stated ante, p. 135), has let in relations of the half-blood, and thereby incapacitated them to become guardians in socage. The descent, however, is still traced as formerly from the last purchaser: and therefore in the case first supposed of a descent from the father, or any other paternal relation, the mother could not inherit, though lineal ancestors are by the statute rendered competent to inherit, she not being of the blood of the first purchaser. See Carill v. Cuddington, Plowd. 299. Where there are two relations of equal degree, the male or the elder relation is preferred: Harg. Co. Litt. 88 b. An infant not being liable to account, Oliver v. Woodroffe, 4 Mee. & W. 650, cannot be guardian in socage. See Co. Litt. 88 b. Guardianship in socage ends when the infant, whether male or female, attains fourteen; Hargr. n. Co. Litt. 88 b. (13); 3 Atk. 624; 1 Ves. sen. 91; even although the father be guardian on a maternal, or the mother on a paternal descent: Litt. s. 123. The heir may then elect a guardian; Mendes v. Mendes, 3 Atk. 624; 1 Ves. sen. 91; Ex parte Watkins, 2 Ves. sen. 470; see Id. 375: and at law he is then entitled to occupy the lands himself if he will, and call his guardian to account, although his own parent; Litt. s. 123; for the father or other ancestor, being guardian in socage, shall account with the infant for the profits; otherwise it would be more for the infant's advantage to have another person for his guardian: Co. Litt. 88 b.; 3 Bac. Abr. 404 (a). Guardianship by nurture only occurs by nurture; where the infant is without any guardian; and none can have it except the father or mother: It extends no further than the custody and government of the infant's person, and determines at fourteen, in the case both of males and females: Bro. Abr. Garde, pl. 70. Guardianship by nature is more extensive; for by nature; not only the father and mother, 2 Atk. 15, but every other ancestor may be guardians by nature, though with considerable differences, such as denote the superiority of the father's claim. The father has the first title to guardianship by nature, the mother the second; and as to other ancestors if the same infant happens to be heir apparent to two, as to both a paternal and a maternal grandfather, perhaps in this equality of rights, priority of possession of the infant's person may decide the preference, according to the general rule, in æquali jure melior est conditio possidentis: Plowd. 296. This guardianship extends no further than the custody of the infant's person; Carth. 386; Rex v. Sherrington, 3 B. & Ad. 714; Villareal v. Mellish, 2 Swanst. 536; which it yields to the guardian in socage, until the infant attains fourteen, but guardianship by nature continues till the infant attains the age of twenty-one: Hargr. n. Co. Litt. 88, b (12); 3 Bac. Abr. 404. However, the proper age to apply to the Court to remove a parent from being guardian, in a male is fourteen, in a female twelve; but the Court will never do it without some misbehaviour in the parent: Roach v. Garvan, 1 Ves. sen. 158. As to the parental right to the guardianship and custody of in

XI. Guardian. form during my minority, all such acts, matters and things whatsoever for me, and in my behalf, relating to me and my

by the father's appointment.

12 Car. 2, c. 24, s. 8.

fants, see Wellesley v. Duke of Beaufort, 2 Russ. 1; 2 Bligh, N. S. 124; 1 Dow, 154; Ball v. Ball, 2 Sim. 35. See also Rex v. Greenhill, 4 Ad. & El. 624; Rex v. Joley, 5 Ad. & El. 441 ; Ex parte Bailey, 6 D. P. C. 311; stat. 2 & 3 Vict. c. 54; Talbot v. Earl of Shrewsbury, 4 Jur. 380; 4 My. & Cr. 672; Re Taylor, 4 Jur. 959, 983; Re Goldsworthy, 2 Q. B. D. 75; Re Besant, 11 Ch. D. 508; Re Agar-Ellis, 10 Ch. D. 49; S. C., 24 Ch. D. 317; and see ante, p. 525. By virtue of the 12 Car. 2, c. 24, s. 8, the father, although under twenty-one, may by deed, or (if of age) by will, appoint who shall be guardians of his children after his decease, until they attain twenty-one, or for any less period; and thereby he will disappoint the mother and other ancestors of the guardianship by nature, Talbot v. Earl of Shrewsbury, 4 Jur. 380, and the next of blood of the guarAppointment dianship by socage. The testamentary power of appointing by will. guardians of their children given by this statute to minors has been taken away by the stat. 7 Will. 4 & 1 Vict. c. 26, s. 7. See sect. 1. Although a deed of appointment of guardianship under this Act is revocable, and has been said to be of a testamentary character, and revocable by will (Earl of Shaftesbury v. Lady Harman, Finch, 323; Lecone v. Sheires, 1 Vern. 442), yet as the Act has itself drawn a distinction between a deed and a will, and as it has been held that a mere appointment of a guardian, though in a testamentary form, is not a subject of probate (Lady Chester's case, Vent. 95; Ex parte Earl of Ilchester, 7 Ves. 364), it seems that an infant may still appoint a guardian of his children by deed. This kind of guardian has the custody not only of the lands descended or left by the father, but of all lands and goods any way acquired or purchased by the infant, which the guardian in socage had not: Bedell v. Constable, Vaugh. 177; 2 P. Wms. 102.

An infant

above seven, having no guardian,

may elect one

Although this power of appointing guardians does not extend to infant children, married at the father's death, yet, if they are then unmarried, the guardianship is not afterwards determined by marriage: Earl of Shaftesbury's case, cit. 3 Atk. 625. The statute has been held not to interfere with the lord's right to the guardianship of his infant copyhold tenant: Clench v. Cudmore, 3 Lev. 395. A father may, under this statute, by will give authority to a surviving guardian to nominate a person in the place of one who has died: In the goods of Parnell, L. R. 2 P. & M. 379.

A testamentary guardian stands in loco parentis, and has accordingly a right to the custody of the infant, enforceable by writ of habeas corpus, which the Court has no discretion to refuse if the applicant is a fit and proper person, and the infant too young to choose for himself: Re Andrews, L. R., 8 Q. B. 153.

The right to elect a guardian may therefore happen before fourteen, when the infant, whether male or female, Co. Litt. 88 a, has no such property as attracts a guardianship by tenure: 2 Fonbl. Eq. 225, 5th edit., and the father is dead, without having executed his power of appointing a guardian for his child, and there is no mother; but if the child be of such tender years that he can make no choice, that is, under seven years of age, see

XI. Guardian.

estate, as a guardian may or ought to do. [But such guar- Guardianship dianship to cease in case the said [guardian] should go to

to cease on

guardian's incapacity, &c.

Fitzgib. 164, then the next of kin, to whom the inheritance cannot descend, should have the custody of him, Co. Litt. 87 b, until a guardian be properly appointed by the Lord Chancellor, or by the infant himself. Or the right of making a guardian by election may happen after fourteen, when the custody of the guardian by socage terminates; and in case of the father's decease, from the want of his appointment, there is no other guardian ready to succeed to the trust, and to take care of the infant or his property: Harg. n. Co. Litt. 88 b (16); 1 Bla. Com. 426. And therefore a minor, after fourteen, although freed from custody, is at liberty, if willing, to put himself a second time under guardianship, until he is of full age. But if a minor, being an adult, does not consent to receive a new guardian, then no Court would appoint a guardian, unless ad litem: Harris's n. Just. Inst. lib. i. tit. xxiii. s. ii. Formerly, in case an Power of ininfant was of the years of discretion, namely, fourteen, any pay- fants over ment made to him would have been good; for at that age the their prolaw held him able to govern and manage his own lands in perty. socage, and consequently to receive the rents thereof: Wentworth's Office of Executor, 219, Wilson's ed.; 1 Powell's Swinb. on Wills, 295, par. iii. s. 14. So, formerly an infant could be an executor at seventeen; but since the 38 Geo. 3, c. 87, s. 6, he cannot act till he is twenty-one; and where he is sole executor, administration with the will annexed must be granted to his guardian, or to such other person as the spiritual Court shall think fit, until the infant attains twenty-one, at which period probate of the will may be granted to him. The power of an infant has been gradually restrained, and he is now thought to stand in need of a guardian of his person and property until twenty-one. See 2 Watk. Cop. by Cov. 76. As Lord Coke mentions the right of choosing a guardian by a male ward in socage after fourteen, Co. Litt. 78 b, even in his time a guardian must have been deemed necessary after that age. But it is remarkable that he omits mentioning it in the case of a female after fourteen. However, since the 12 Car. 2, c. 24, s. 8, it has been usual, for want of a guardian by the father's appointment, to allow infants, whether males or females, 1 Bla. Com. 463, and whether heirs or not (see Harg. n. Co. Litt. 88 b (12)), to elect guardians for themselves. But the appointment of a guardian by the infant Infant's aphimself, even after the age of fourteen, does not exclude the pointment of jurisdiction of the Court; and therefore, where a petition for the guardian does appointment of a guardian to an infant was resisted on the not exclude the jurisdicground that the infant, who was of the age of seventeen, had by tion of the deed appointed a guardian for himself, Sir J. Leach, V.-C., Court. referred it to the master to consider a proper person, observing, that the infant's appointment would not supersede the duty and authority of the Court: Curtis v. Rippon, 4 Madd. 462.

Lord Coke omits stating how, and before whom the election The election should be made; nor does it appear that any prior or contem- is usually porary writer supplied the defect. Lord Hardwicke said it was made by deed.