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Chap. 414. Mr. E. L. Smith's, amending the laws corporating the Beet Sugar Cooperative Commurelative to the poor in Herkimer county.

Chap. 415. Mr. Gardenier's amending the banking law providing for filling vacancies in trustees of banking institutions.

Chap. 416. Senator Mullin's bill, defining the liability of towns for the construction and care of public buildings.

Chap. 417. Senator O'Sullivan's bill, providing that the mayor of each city of the State may issue certificates of transportation to policemen and firemen and telephone certificates for use in the performance of official duty.

Chap. 418. Senator Mullin's, to amend Laws of 1886, entitled "An act to provide for the taxation of fire and marine insurance companies."

Chap. 425. Mr. Ainsworth's, to amend Laws of 1881 providing for the raising of taxes for the use of the State upon certain corporations, joint stock companies and associations.

Chap. 426. Senator Guy's, to amend the Code of Civil Procedure relative to judicial settlement of

accounts of execution and administrators.

Chap. 427. Mr. Gardiner's, to extend time for the completion of the New York, Boston, Albany and Schenectady Railroad Company.

Chap. 428. Mr. Fuller's, amending the act incorporating the New York Northern Railroad Company.

Chap. 429. Mr. Siebert's, amending an act to incorporate the River Bridge Company.

Chap. 430. Mr. Cutler's, to provide compensation for the members of boards of health in incorporated villages.

nity.

Chap. 459. Mr. Wilds', amending the act providing for the supply of hospitals with pure water. Chap. 460. Mr. Brush's, raising the age of consent to 18 years.

Chap. 462. Mr. Schoepflin's, amending the law for the incorporation of villages.

Chap. 469. Mr. Sherwood's, amending the law providing for the supply of villages with water.

Chap. 473. Mr. Howe's, providing that the State lunacy commission, in place of the president of the State board of charities, shall be a member of the commission to determine the value of articles manufactured in the State prisons for use in public insti

tutions.

Chap. 477. Senator Mullin's, providing that the presiding officer of each of the legislative branches may designate five persons to remain for thirty days after adjournment to do clerical work.

Chap. 480. Mr. Nixon's, amending the county law relative to the compensation of supervisors.

Chap. 485. Mr. Ballard's, amending act authorizing towns to raise funds for celebrating Memorial day.

THE RIGHTS AND RESPONSIBILITIES OF

IT

PARENTS.

T is pleasing, in reviewing the legal nature of the bond between parent and child, to discover that, except in the feudal times, the welfare of the child has been the guiding influence of our statutes and leading cases in deciding the difficulties and disputes that have arisen. It is, on the other hand, a disappointment to realize that these difficulties and disputes have arisen more often than not through the inability of husband and wife to agree. Indeed, the revenge often adopted by the husband or wife to punish his or her partner in life has generally been the attempting to gain the exclusive possession of the children of the marriage, to wean away their affections, or to instil into them some form of religion known to be the special abhorrence of the other parent. The history of the relation of

Chap. 435. Mr. Niles', incorporating Charles A. Dana, Oswald Ottenndorfer, Andrew H. Green, William H. Webb, Henry H. Cook, Samuel D. Babcock, Charles R. Miller, George G. Haven, J. Hampton Robb, Frederick W. De Voe, J. Seaver Page, Rush C. Hawkins, David James King, Wager Swayne, Charles A. Peabody, Jr., Charles E. Whitehead, Charles R. Flint, Samuel Parsons, Jr., Morray Williams, Henry E. Gregory, Isaac W. Macray, Isaac Rosenwald, Hugh N. Camp, Andrew D. Parker, Cornelius Van Cott, William F. Havemeyer, Fred-parent and child may be divided legally into three erick Shannard, William W. Thompson, Alex. Hadden, Edward L. Owen, John H. Starin, Rush S. Haidekofer, William W. Goodrich, Albert H. Gallatin, Frederick S. Church, Edward C. Spitzka, Robert L. Niles, Madison Grant, C. Grant La Farge and William Van Valkenburgh as the New York Zoological Society to establish a zoological garden in the city of New York.

Chap. 454. Mr. Percy's, amending the railroad law relating to foreclosure and sale of property under decree of United States courts.

periods: (1) Feudal; (2) 1656-1857; (3) 1857 to our own times. First of all, there are the feudal relations arising from the tenure of lands. In these cases the lord stood in loco parentis to the child under the following circumstances: One of these relations was called "guardianship in chivalry." It could only arise where the estate vested in the infant by descent, and provided that the male infant was under the age of twenty-one, and the female infant under the age of fourteen. (These ages were not settled in Bracton's time, but were finally de

Chap. 457. Mr. Rogers', amending the act in-termined in Littleton's.) It embraced the power

over the person of the child, and also the right of administration of its lands and tenements. As it gave to the guardian the rents and profits of those lands, it was more of a profit than a trust, and was saleable. Where the lord was king, he took the guardianship of the person of the child, no matter what was the age of the tenure; but if there were several lords, of which the king is not one, then the lord whose tenure was most ancient took charge of the person of the child by priority. This lasted until the male infant was twenty-one, and the female infant was sixteen or married.

But here note the most important point. This guardianship of the person of the child was entirely subject to the rights of the father (but father only; it did not extend to any other relation), if the infant was the father's heir apparent. The only obligation of the guardian was one of maintenance. It is somewhat incredible that the ghastly idea of selling this moral responsibility with the rents and profits of the infant's estates continued up to the reign of Charles

II.

selves live in. Two other relations of this nature were in existence in the very early feudal times. "Guardianship by soccage," which was dependent upon the infant becoming entitled to soccage lands and took place by descent only. That is, the infant must have inherited qua infant soccage lands. It differed from guardianship in chivalry in that it was a personal trust for the benefit of the child, was not saleable, and gave the ward a right to call upon the guardian for an account of the profits of the lands. The other office was one accruing by custom of the manor, where the infant inherited copyhold land. The nature of it was entirely dependent upon the custom of the manor. If now any infant found itself without any guardian, that is, if all these four relations failed, there were four others which could supply the infant with a protector. The first was the election of a guardian by the infant itself, which took place generally by application to the judge on circuit, but which might be by a deed, or even by parol appointment. Curiously, even in 1818, in a case (Anon. 2 Ves. Sen. 374), the judge is reported to have said: "If the infant has any soccage land and is of the age of twelve if female, or fourteen if male, they may choose their guardian, as is frequently done on circuit." In this case the judge allowed the rightful guardian to keep the management of the estate, and gave to another the custody of the infant. The second guardianship, failing all others, was an appointment by the lord chancellor, and the origin of this is unknown, it being alleged by some to be on the same basis as the case of lunatics, whose interests are in the hands of the lord chancellor. The remaining two appointments were by the ecclesiastical courts and by any court. These two only arose where there was an inheritance in dispute, and where a next friend was required to act in a suit. Up to the reign of Charles II, what was then the relation? We may say: (1) If the infant (males under twenty-one and females under sixteen) inherited by descent any lands in knight's service, and was not heir or heiress to any lands which his or her father held, and the lord of whom he or she held lands became his or her guardian, as guar

This right of the father over the child, greater than the right of the lord of whom other lands were held, was called the "guardianship by nature," it alone in its primary condition appertained to the heir apparent of a father; but this is in a measure contradicted, because it is said that the existence of the writ of trespass, Quare consanguineum ei heredem cepit, which could be issued by the mother, seemed to infer that the power possessed by the mother to gain guardianship signified the survival of such an office in the mother on the death of the father. As time went on the idea of "guardianship by nature relaxed its limited meaning until we find that the father was only guardian by a right superior to that of all other relations. On his death a mother, and failing her the other relations in turn of their degree of consanguinity, could obtain the office. This natural guardianship, it must be remembered, only applied to the heirs apparent, and only to female heiresses apparent on a presumptive basis that at any time an heir apparent could be born. Whatever was the character of this relation of "nature," it, in its exclusiveness as only apply-dian in chivalry, both as to person and estate. The ing to the eldest son or daughter, was feudal. relation between the parents and the other children was on different basis, it was called "guardianship by nurture," and lasted until the child, male or female, was fourteen, and not a day longer; it only applied to the father or mother, and no other relation could hold it. When we remember the early age of marriage, the early age at which sons went out into the world to do knight's service, we can well understand that the age of fourteen was to the generation we are now speaking of a relatively much more advanced age than it is to the one we our

The

guardianship ended when the male infant became twenty-one, when the female became sixteen or married. The lord was liable for maintenance. (2) If the infant was heir apparent to his father, the father took the custody of the child, which was called the guardianship of nature, and lasted in the case of males till twenty-one. (3) Infants who were not inheritors of land by descent were under the guardianship of the father, and if the father died, of the mother, by virtue of the guardianship of nurture. It ceased at the age of fourteen. (4) The guardianship of infants taking soccage lands by de

scent differed from that chivalry in that it was not saleable and ceased when the ward became fourteen years of age. (5) Guardianship by the custom of a manor over infants taking copyhold lands. (6) Failing the foregoing, (a) an infant if under fourteen could apply for a guardian, if over fourteen was considered not to require one; (b) or it could have one appointed by the lord chancellor, and in case of litigation, (c) by the ecclesiastical court, (d) or by any court where a suit was entered.

however, pointed out that a habeas corpus can only be sued out where a subject is kept under restraint against its will, and to explain what "against its will" means, the court has had to determine at what age a child has a will. Judges have been careful to explain that precocity of intellect is not the evidence of will; but on the other hand, it shows a weakness tending rather to injure than to enable a child to say what is best for it. The courts have gone back then to ancient history to fix the age of discretion for boys at fourteen and for girls at sixteen in determining at what age they may be allowed to decide whether they are under restraint against their will or not, and that a boy under fourteen and a girl under sixteen is under restraint against its will when in the custody of a third person, unless it is with its natural protector. For this argument compare Rex v. Greenhill, 1835, 4 Ad. & Ell. 643, "where the custody of a child is in the

Hence, we may say that, except in cases of land tenure by infants the early law only looked upon the necessity of a guardian up to the age of fourteen, and may we argue that maintenance would only be enforceable up to that age by the same reasoning? Now comes a great change which Lord Justice Lindley in Thomasset v. Thomasset (July 17, 1894), very rightly said was an extension of a parent's rights by statute. The statute of 12 Car. 2, ch. 24, § 8, gave the father right to appoint a guard-hands of a third person a presumption arises in favor ian to his child up to the age of twenty-one. When Lord Justice Bowen reviewed the question he said, in Agar-Ellis v. Lascelles, 1883, 50 L. T. Rep. N. S. 161; 24 Ch. Div. 317, said: "The strict common law gave to the father the guardianship of his chil- | dren during the age of nurture, and until the age of discretion. The limit was fixed at fourteen years in the case of a boy, and sixteen in the case of a girl, but beyond this, except only in the case of an heir apparent, the father had no actual guardianship, in which case he was guardian by nature till twentyThat was what was called guardianship by nature in strict law. But for a great number of years the term guardian by nature has not been confined, so far as the father is concerned, to the case of heirs apparent."

one.

It seemed natural to Lord Justice Bowen, as it did to others before him, that what a man may grant by will he should himself possess, and no doubt custom long before the reign of Charles II. had enlarged the power of father from the age of fourteen to twenty-one. [Note-it is interesting to compare the case of alienation of land by will being more ancient than the alienation of land inter vivos.] We pass now from this part of the subject, assuming that at this date the father had by custom power over the person of his child until that child was twenty-one, to different classes of cases which arose by reason of the powers of a court of common law over the body of a subject under restraint, and of a court of chancery over an infant who was a ward of the court. The powers of a court of common law arose by reason of the habeas corpus, and had nothing whatever to do with the relation of parent and child. Counsel has in various cases attempted to argue that the decisions on habeas corpus cases are decisions on the relation of father and child. Every judge has,

of the father," and this can be rebutted by special evidence of cruelty, etc. And again, Reg v. Clarke, 1857, 7 Ell. & B. 186, where the judge says that the court must consider what the father would have wished had he lived, as was the natural protector of his child. By Reg. v. Howes, 1860, 3 E. & E. 332, we get a decision in favor of the father in the case of a girl of the age of sixteen. Rex v. Delavel, 3 Bur. 1435, is very definite, for in that case the court freed a girl over sixteen from restraint, but refused to make any order as to custody, at the same time declaring that in that respect it had discretion. We should submit the court had no discretion at hat time: cf. also Re Spence, 2 Ph. 247. And in recent times we have the doctrine fully explained by Lord Esher.

It was contended in Re Agar-Ellis; Agar-Ellis v. Lascelles ante, that because when a girl is sixteen the father cannot, by a habeas corpus, get a return of his child, that therefore at that age the father has no control; but the master of the rolls refused to accept such an argument, because that a habeas corpus is only granted where a person is in illegal custody and without his or her consent. Although the law gives a father absoluted control over his children until they attain the age of twenty-one, the father, in order to sue out a habeas corpus, must prove that there is custody without consent. The law has fixed the ages of fourteen and sixteen for boys and girls respectively, at which they may consent. Hence, a father will only be able to use a habeas corpus while the child is under the age which the law says it cannot refuse or consent. By this process of argument the Court of Appeal held that the comparative argument of cases under a habeas corpus was not available. The father will have the custody of his child by right unless there

are grave reasons against it, reasons why the court | body who is suggested to be improperly detained.

think will imperil the future of the child. The annotator in ex parte Hopkins, 3 P. Wms. 55, very pertinently says, as regards the habeas corpus, "the court will not, in a proceeding of that nature, determine private rights, as the right of guardianship evidently is."

Passing then from the jurisdiction of the common law courts we turn to that of the Court of Chancery over a ward, and we find that this jurisdiction was far in excess of any other court, and Courts of Chancery have by a series of luminous judgments always regarded the equity of the cases brought under their notice. In Hall v. Hall, 3 Atk. 721, those courts indorsed the rights of a guardian to choose a school, and in one case the judge sent his tipstaff to take charge of a recalcitraut undergraduate to Cambridge. And coming to more recent times, the policy of a Court of Chancery is well reviewed in Re Magrath, 67 L. T. Rep. N. S. 636 (1893); 1 Ch. 143. A new era set in after the Judicature Act, 1873, when courts of common law assumed the powers of the old Courts of Chancery. By section 25, clause 10, it was especially laid down that, "In questions relating to the custody and education of infants, the rules of equity are to prevail." We cannot here do better than quote the words of one or two very enlightened judgments. It is by this section we have quoted that the judges will now, no matter what court they are sitting in, consider that the welfare of the child is the cardinal principle to be considered. Lord Esher said in Reg. v. Gyngall, 69 L. T. Rep. N. S. 481 (1893); 2 Q. B. 232, "The court is placed in a position, by reason of the prerogative of the Crown, to act as a supreme parent of the children, and must exercise that jurisdiction in the manner in which a wise, affectionate and careful parent would act for the welfare of a child. The natural parent in any particular case may be affectionate, and may be intending to act for the child's good, but may be unwise, and may not be doing what a wise, affectionate and careful parent would do; the court may say in such a case, although they find no misconduct, say that they will not permit that to be done with the child which a wise, affectionate and careful parent would not do." The master of the rolls added that the court had to consider (1) the position of the parent; (2) the position of the child; (3) the age of the child; (4) the religion in so far as a child can have any.

This court interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patrioe, and the exercise of which is delegated to the Great Seal," and the principle is very well put in general terms by Lord Bowen in Agar-Ellis v. Lascelles (sup.): “Judicial machinery is quite inadequate to the task of educating children in this country. It can correct abuses, and it can interfere to correct the parental caprice, and it does interfere when the natural guardian ceases to be a natural guardian, and shows, by his conduct, that he has become an unnatural guardian; but to interfere further would be to ignore the one principle which is the most fundamental of all in the history of mankind, and owing to the full play of which a man has become what he is."

The most remarkable feature in all the cases which we have recited, seems to be the absence of any case which ordered a father to maintain his child. This is explained by the fact that the court of equity never interfered with the father except the child was a ward of court, and in that case the child, having generally separate estate of its own, there was no reason to order maintenance. There seems to have been a common-law duty of a father to maintain his children if he was in a position to do so: Andrews v. Partington (1790, 3 Bro. C. C. 60), but this has always been left to the conscience of the parent, excepting as regard the scanty provision enforceable by the poor laws. So much,

then, for the law which applies whilst the father

and mother are living together, and whilst only one is alive. The statutes which regulate divorce upon a new era of possibilities. By 20 and 21 Vict., c. 85, s. 35, in any suit for judicial separation or divorce, etc., the court was granted power to make proper provision for the custody, maintenance, and education of the children of the marriage; and by 22 and 23 Vict., c. 61, s. 4, this power was extended to enable the court to make the same orders subsequent to the time of granting the divorce or judicial separation. This statutory power is far in excess, as we see, to any power which any court held before. It is a new jurisdiction, converting a moral duty into a legal duty by reason of any conduct justifying judicial separation or divorce. Lord Justice Lindley, in his judgment of the case, Thomasset v. Thomasset, supra, says at once that, had he interpreted these statutes apart from subsequent

cases, he should have said at once that the welfare of the children, which was imperilled by judicial separation or divorce warrants the allowance of maintenance up to the age of twenty-one.

The reader is also referred to Re Spence, 2 Ph. 247, per Lord Cottenham, L. C.: "I have no doubt about the jurisdiction, i. e., of a Court of Chancery over infants. The cases in which this court interferes on behalf of infants are not confined to those in which there is property. Courts We have not paused to distinguish between cusof law interfere by habeas for the protection of any-tody, maintenance and education. The first only

differs from the last two, in that the happiness of N. S. 392 (1892), Prob. 148. Now the learned the child may be imperilled by forcing on a child a | judge saw no reason why the power of the divorce custody unsympathetic to it after the ages of four-courts should be so restricted. If the welfare of teen and sixteen for boys and girls respectively. the children was the one point considered by the But it is superfluous to point out that the welfare of the child demands maintenance and education where it may not demand custody. This was well brought out in Rex v. Delavel already quoted. Lord Justice Lindley was then hampered by the following decisions: Ryder v. Ryder (1861), 3 L. T. Rep. N. S. 678; 2 S. W. & T. R. 225, a case where the court declined to order maintenance for a child

The

courts of law and equity, and if that welfare did
not allow an enforced custody of a child over six-
teen, what was the reason to restrict maintenance
to sixteen? He pointed out that the words of
Lords Esher and Bowen, in Agar-Ellis v. Lascelles,
and of Lord Esher in Re Magrath were not words
which would limit the power to grant maintenance
for children over sixteen, and that the most humane
reasonings which those judges employed tended to
give the judges the powers which Ryder v. Ryder
had been the first to so narrowly restrict.
case, therefore, of Thomasset v. Thomasset, now
reads the period of infancy to mean twenty-one
years as regards maintenance and education, and
the Court of Appeal has, in our opinion, swept
away a great mass of false reasoning in those cases
to which we have referred. The law of the courts
of chancery of common law, and of divorce, is,
therefore, this: The welfare of the child is the one
and only consideration. Where the parents are not
judicially separated or divorced, the courts will

and happiness of the lawful issue. Where the parents have invoked the aid of the divorce court, then that court will secure to the issue the full benefit which a child has to expect from its parents. Up to the age of twenty-one a child requires maintenance and education, and the courts will secure for it these benefits. The growing litigation between unhappy married people requires that the object of marriage should be carried out, that society may not be shaken in its foundation, that the ills which misguided parents bring upon themselves should not be visited upon the innocent and unprotected offspring.-Law Times.

over sixteen, because it said it could not order custody, and the false reasoning of this case is well set out by the learned judge: "Ryder v. Ryder was a decision of the full court, consisting of Sir Cresswell Cresswell, Mr. Justice Willes and Baron Channell, and it was there decided that the court had no jurisdiction to make any order as to the custody of children over sixteen. The main ground for this decision appears to have been that courts of common law did not make orders disposing of the custody of children over sixteen, and the divorce court had not the children before it, and could not therefore enforce against them any order it might make. This reasoning does not appear to me satis-only interfere as a last resource to secure the health factory. The divorce court could decide between the parents which parent should have the custody of the children. And even if the divorce court could not bring the children before it and exercise jurisdiction over them, still, if the divorce court had made an order binding on the parents, such an order might, if necessary and proper, have been enforced by proceedings in chancery. The effect of Ryder v. Ryder (ubi sup.) practically was to enable a delinquent father to set up the age of his infant child as an answer to an application for an order for its custody. This was, in my opinion, an unfortunate decision, but it is one from which the judicature acts have, in my opinion, set us free. It was also wrong to hold, as a matter of law, that maintenance followed custody, and that the court had no jurisdiction to order maintenance for a child over sixteen. This was decided in Webster v. Webster (1862), 6 L. T. Rep. N. S. 11; 31 L. J. 184, although Mr. Justice Willes, in Ryder v. Ryder (ubi sup.) had pointed out that it did not follow from that decision that maintenance could not be ordered for a child over sixteen. Even before the Judicature Act, 1873, the cases, in my judgment, went too far. But after that act, I confess my inability to understand how it can be right to hold that the statutory discretion conferred upon the court is restricted within the narrow limits previously supposed.

The precedent in Webster v. Webster had been followed in Blandford v. Blandford, 67 L. T. Rep.

IN

HER FIRST LAW CASE.

N September, 1894, a farmer from the western part of our State came to me for advice. It appears that in December, 1893, he had entered into an oral agreement with a New York milk dealer to send him pure milk daily for and in consideration of being paid exchange price at the beginning of each month.

The farmer carried out his part of the contract faithfully, but the milk dealer did not. He failed to pay at the agreed time, and after the first month did not pay exchange price. Still the farmer continued sending the milk until May 1, 1894, at which time he failed to receive the usual check. He wrote to the milk dealer asking for an explanation. The milk dealer answered and said: "Unable to

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