Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/12

INFANT already. The person who supplies goods primci fade necessary to an infant must, it would seem, take the risk of their turning out to be unnecessary. An infant fraudu lently passing himself off as of full age and contracting on that footing will be hold bound in equity. The protection of infants extends sometimes to transactions completed after full age : the relief of heirs who have been induced to barter away their expectations is an example. " Catch ing bargains," as they are called, throw on the persons claiming the benefit of them the burden of proving their substantial righteousness ; and, although the youth of the party charged is not an essential point, it is generally one of the facts relied on as showing undue influence. At common law a bargain made by an infant might bo ratified by him after full age, and would then become in all respects binding. Lord Tenterden s Act required the ratification to be in writing. But now by the Infants Relief Act, 1874, "all contracts entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to bo supplied (other than contracts for neces saries), and all accounts stated, shall be absolutely void," and " no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new con sideration for such promise or ratification after full age." It has been held in a recent case that this action applies to promises of marriage, so that where an infant had promised marriage, and after attaining full age continued to recognize the promise, no action arose on the breach. But an actual contract of marriage may be lawfully made by persons under age. Marriageable age is fourteen in males and twelve in females. So, generally, an infant may bind himself by contract of apprenticeship or service. Since the passing of the Wills Act, an infant is unable to make a will. Infancy is in general a disqualification for public offices and professions, e.g., to be a member of parlia ment or an elector, a mayor or burgess, a priest or deacon, a barrister or solicitor, &c. The custody of an infant belongs in the first place, and against all other persons, to the father, who is said to be " the guardian of his children by nature and nurture ;" and the father may by deed or will dispose of the custody or tuition of his children until the age of twenty^one. If the father is dead, and has appointed no testamentary guardian, themotheris recognized as "guardian by nature andnurture." But the children must be brought up in the father s religion, even when he has given no directions on the subject ; and it appears that no agreement between husband and wife to the contrary effect will be sustained. When, however, the father has in his lifetime suffered the children to be educated in their mother s religion, he may be held to have waived his rights. The Court of Chancery is unwilling to embarrass itself by departing from the strict rule, and an instance is recorded of a child which had been educated from eight to fifteen in the tenets of the Plymouth Brethren being ordered by the court to be educated in the religion of the Church of England. The right of the father to the custody of the child will be enforced, except where he has been guilty of gross immorality, by writ of habeas corpus, as long as a child is within the age of nurture, which for males at least may bo taken to be fourteen years. The infant then acquires a right of election. In two cases a boy over fourteen but under sixteen has been permitted by the court to choose, when the father had sued for the custody under a habeas corpus. In the case of female infants, tho courts have held that they do not acquire the right of election till sixteen, following the statute of Philip & Mary which punishes the abduction of maidens under that age as a criminal offence. These rules do not apply to illegitimate children, as they are not under the legal guardianship of the putative father or the mother. The rights of the father or mother may be interfered with by the Court of Chancery under special circumstances, such as cruelty, immorality, &c. A recent Act (36 & 37 Viet. c. 12) gives power to the court to make orders for the mother of an infant under sixteen, to have or retain the custody of such infant, or to have access thereto, &c. The same statute legalizes agreements by the father to give up the custody and control of children to the wife. The Divorce Court has also very extensive powers of regulating the custody and maintenance of children, in exercising which it observes the same limits of age as the courts of law and chancery. There is not at common law any corresponding obligation on the part of either parent to maintain or educate the children. The legal duties of parents in this respect are only those created by the poor laws and the Elementary Educa tion Act. In the case, however, of debts contracted by a child for necessaries, the authority of the father would, to use a common phrase, be " easily implied." Besides the natural guardianship of parents, children may in various other ways come under the authority of guardians. A recent author gives the following as a com plete list of guardians : guardian in chivalry, in socage, in nature, by nurture, by election of the infant, by statute (4 Philip & Mary c. 8, 12 Chas. II. c. 24), by custom, by appointment of the ecclesiastical courts and of the Court of Chancery, foreign guardians, and guardians ad litem (Simpson s Law of Infants, London, 1875). Some of these have already been noticed, and others are obsolete or nearly so. The Act of Chas. II. enables the father to appoint a testamentary guardian to his children during infancy or any less period, who shall have the charge of the infant s real and personal estate. The Act is not to prejudice any customary guardianship, such as that of the City of London, where, according to ancient but now disused custom, the goods and lands of the orphans of freemen are in the custody of the lord mayor and aldermen in their court of orphans. By the custom of Kent, and by the special customs of certain manors, the lord has the right of appointing guardians to infant tenants. Guardian ship by socage extends only to lands of socage tenure, and belongs to the next of blood of the infant, other than those who might succeed to the estate when the infant dies. It ends when the infant reaches the age of fourteen ; after that age, or before if there was no guardian, infants were formerly allowed to elect a guardian, but that practice is now superseded by the action of the Court of Chancery which appoints guardians in all cases where it is for the benefit of the infants to do BO. An infant under a guardian appointed by the Court of Chancery is properly a " ward of court," but the term is also applied to infants brought under the authority of the court although no guardian be appointed. The office and duty of the guardian extend to the custody and control of the infant, to his education, maintenance, and advancement out of any property that may be available therefor, and to the prevention of im proper and disparaging marriages. The office of guardian is strictly a trust, the ordinary duties and responsibilities of a trustee with respect to property being accompanied by peculiar rights and duties with respect to the person of the cestui que trust. He must act in all cases for the benefit of the infant, and may not put himself into any position in which his interest would be hostile to that of the infant. The Court of Chancery has full jurisdiction over guardians of every kind, whether appointed by itself or not, and if it cannot actually dismiss a testamentary guardian, it may supersede him and entrust the charge of