[* § 1325 a. And the same rule applies to other contracts generally, no doubt. But where the party (or his agent), who is entitled to the benefit of the forfeiture, has waived such benefit, and treated the contract as still subsisting for some purposes, he will not be allowed to insist upon the forfeiture for any purpose. As, where a life-policy was subject to a condition making it void if the assured went beyond the limits of Europe, without license; and an assignee of the policy, on paying the premium to a local agent of the company, at the place where the insurance had been effected, informed him that the assured was resident in Canada, but the agent stated that this would not avoid the policy, and received the premiums until the assured died; it was held that the company was precluded from insisting on the forfeiture.1] § 1326. Where any penalty or forfeiture is imposed by statute upon the doing or omission of a certain act, there courts of equity will not interfere to mitigate the penalty or forfeiture, if incurred, for it would be in contravention of the direct expression of the legislative will. The same principle is generally (perhaps not universally) applied to cases of forfeiture founded upon the customs of manors, and the general customs of certain kinds of estates, such as copyholds; for, in all these cases, the forfeiture is treated as properly founded upon some positive law, or some customary regulations, which had their origin in sound public policy, and ought to be enforced for the general benefit.3 [* § 1326 a. In a recent case, where the subject is a good deal discussed, and the authorities carefully canvassed, it was held, that where a deed was conditioned for the performance of a covenant for the maintenance of the grantee, equity will relieve the grantor from a forfeiture, which was accidental, or at least unintentional, and not attended with irreparable injury to the grantee; but that it rested in the discretion of the court when relief should be 1 [* Wing v. Harvey, 5 De G., M. & G. 265.1 2 Peachy v. Duke of Somerset, 1 Str. 447, 452 to 455; Keating v. Sparrow, 1 B. & Beatt. 373, 374; [Powell v. Redfield, 4 Blatch. C. C. 45. Equity follows and enforces the law, and does not contradict and contravene an express rule of law or statute]. 8 Peachy v. Duke of Somerset, 1 Str. 447, 452; s. c. Prec. Ch. 568, 570, 574. But see Nash v. Earl of Derby, 2 Vern. 537, and Mr. Raithby's note (1); Thomas v. Porter, 1 Ch. Cas. 95; Hill v. Barclay, 18 Ves. 64. 4 [* Henry v. Tupper, 29 Verm. 358; Dunklee v. Adams, 20 Verm. 421. granted in this class of cases. Such a deed is regarded as a 1 In giving the opinion in the case of Henry v. Tupper, it was said: "But equity, as a general thing, will relieve the party from such a forfeiture. It will do it in all cases, it is said, where compensation can be made. 2 Greenl. Cruise, 36, § 29. "Chancellor Kent lays down the rule in regard to relief in such cases, that it is confined to cases where the forfeiture has been the effect of accident, and the injury is capable of compensation; Livingston v. Tompkins, 4 Johns. Ch. 431, citing Rolfe v. Harris, 2 Price, 207, note; Bracebridge v. Buckley, 2 Price, 200; and this seems to be putting the matter upon reasonable grounds. "But if the matter is really capable of compensation, it is more doubtful, perhaps, whether the cases will warrant any denial of relief, upon the ground that the forfeiture was not the result of accident. It is certain no such thing is required to be shown in the naked case of a pecuniary debt. The non-payment may be wilful, and the party is still entitled to relief, as matter of right. But the case of Dunklee v. Adams seems to have settled the question in this State, that relief for nonperformance of collateral duties is matter of discretion in the courts of equity, to be judged of according to the circumstances of each particular case. "And in Hill v. Barclay, 18 Vesey, 56, which is a very elaborate case upon this point, although the chancellor, Lord Eldon, says a great deal about the difficulty of making compensation, in money cases even, and shows very clearly that the payment of money and interest, in most cases, is no compensation for not having it when due, and so shows pretty conclusively, I think, that there is no settled principle in the books in regard to what cases the court will relieve from 2 Austin v. Austin, 9 Verm. 420; Lanfair v. Lanfair, 18 Pick. 299; Opinion of the Court, in Henry v. Tupper, 29 Verm. 371, where it is said: "The deed seems to us to be substantially a mortgage. It forfeiture, and what cases they will not; and that, after all, it does not depend so much upon the difficulty of making compensation as upon other circumstances often; yet Lord Eldon says, if the covenantee offers to overlook the forfeiture, there would seem to be no difficulty in allowing subsequent performance of a specific act, as making repairs. But, if the tenant still refused, upon what ground,' asks his lordship, having wil fully refused and violated all his covenants, could he desire a court of equity to place him in exactly the same situation as if he had performed them?' And this point of wilful neglect and non-performance is many times referred to in that case as an invincible obstacle to relief. These two points seem to me to have been very generally mixed up, most inextricably, in the equity decisions upon this subject. In cases where the condition is for the payment of money, or for the performing of a certain value of services, expressed in currency, as one hundred dollars of necessary repairs upon buildings leased, it has been, I think, the more general practice of the court to grant relief, as matter of right, without reference to the inquiry whether the default was accidental or wilful. But in all cases where the thing to be done was something collateral, where the issue quantum dannificatus, must be sent, either to a jury, or masters, before the court could grant relief, they have pretty generally, I think, required to be satisfied that the omission to perform was not wilful, but accidental; and by surprise; and it has been held always in such cases to depend very much upon the circumstances of the particular case. That relief might be granted in equity, even where the condition was for the performance of collateral acts, seems to be admitted in most of is a deed subject to defeasance by the ful- the cases upon this subject. Webber v. Smith, 2 Vernon, 103; Hack v. Leonard, 9 Mod. 90; Cox v. Higford, 2 Vernon, 664; Sanders v. Pope, 12 Vesey, 282. These are cases of non-repair of premises leased; and the chancellor, Lord Erskine, says in the last case, 'I cannot agree it is necessary the non-performance of the covenant should have arisen from mere accident or ignorance.' The cases are abundant where relief has been granted against forfeiture of title by nonperformance of other collateral acts, as for not renewing a lease; Rawstorne v. Bentley, 4 Br. C. C. 415; or for cutting down timber when covenanted against, on pain of forfeiture. Northcote v. Duke, Ambler, 511; Thomas v. Porter, 1 Ch. Cas. 95. But it has been held, relief will not be granted where the forfeiture arises from an act incapable of compensation, although of no essential damage to the other party, as the breach of a condition not to assign. Wafer v. Mocato, 9 Mod. 112. The same rule obtains where the forfeiture arises from an omission to insure. Rolfe v. Harris, 2 Price, 206. "It seems, however, to be pretty well established in England, that relief for non-repair of premises will not be granted as matter of course, and especially when there was a wilful default. Bracebridge v. Buckley, 2 Price, 200; Hill v. Barclay, 16 Vesey, 402, and 18 id. 56. But where the failure is from 'accident, fraud, surprise, or ignorance, not wilful,' relief will be granted; 2 Lead. Cas. in Equity, 464, 465; Eaton v. Lyon, 3 Vescy, 693; the result of all which seems to be, that there is no well-settled rule upon the subject, or none which is not liable to considerable variation, and to be affected by the circumstances of the particular case. "It certainly cannot be maintained, from the authorities, that relief is, in all cases, limited to the non-payment of money. Nor is there any principle whereby it can be made to appear that such cases are the only ones where compensation can be made. Many collateral duties are just as susceptible of compensation as a covenant to pay money; as undertakings to deliver goods, to repair premises, or to afford support even; for in all these cases the non-performance, at the time, is not fully compensated by the payment of the same value and interest at an after-time. The non-payment of a sum of money, at a particular time, may, under circumstances, be one's ruin, and at others it may be a positive benefit, if the interest be subsequently paid; and so of any collateral duty. And in regard to this support, it is no doubt capable of being stated in strong terms, and quite consistent with supposable emergencies. But the case would not be different, in fact or in principle, if it was a stipendiary sum in money, for the purposes of support either in fact or in terms expressed in the contract. “But the apprehension that this equitable relief shall be absolutely confined to cases of pecuniary debts is certainly presenting a very shortened view of the range of equitable principles. Such a limit, to be held absolutely binding in all cases, would certainly look like an evasion of just and reasonable discretion. "But we must all feel that cases of the character before the court should be received with something more of distrust, and relief afforded with more reserve and circumspection than in the ordinary cases of collateral duties. "And although we are not prepared to say that it must appear that in all cases the failure arises from surprise, or accident, or mistake, we certainly should not grant relief when the omission was wilful and wanton, or attended with suffering or serious inconvenience to the grantee, or there was any good ground to apprehend a recurrence of the failure to perform, as was held in Dunklee v. Adams, 20 Vt. 421. "The court very readily perceive that the subject under consideration may admit of many cases where no relief should be granted in equity. This very class of cases will afford abundant illustrations of the essential necessity and manifest propriety of holding the subject under the control of the courts of chancery, and making the relief dependent, to some extent, upon circumstances. The case might occur where the refusal to afford daily support would be wanton and wicked: indeed where it might pro ceed from murderous intentions even; and it is even supposable that the treatment of those who were the objects of the services should be such as to subject the grantor to indictment for manslaugh ter, or murder even, and possibly to ignominious punishment, and to death. To afford relief in such a case, for the benefit of the heirs, would be to make the court almost partakers in the offence. "And the case upon the other hand is entirely supposable, and of not infrequent occurrence, when, through mere inadvertence, a technical breach may have occurred in the non-performance of some unimportant particular, in kind or degree, where, through perhaps mere difference in construction, or error in judgment, one may have suffered a forfeiture of an estate, at law, of thousands of dollars in value, where the collateral service was not of one dollar's value, and attended with no serious inconvenience to the grantee. Not to afford relief in such a case would be a discredit to the enlight ened jurisprudence of the English nation and of those American States that have attempted to follow the same model." "The argument, by which the propositions in the text are maintained, in the case referred to, is inserted, because it covers the main ground of the question of forfeitures, in courts of equity, which is one of great practical importance to the profession, and attended with consid erable uncertainty; and it contains all that may be said in regard to the present state of the authorities, and their possible conflict, and acknowledged indefiniteness and unsatisfactory character.] CHAPTER XXXV. INFANTS. 1* § 1327. Jurisdiction in equity over infants, idiots, lunatics, and married women. § 1328. Origin of the jurisdiction obscure. § 1329. Jurisdiction over infants in court of chancery; over idiots and lunatics, by special commission. § 1330. Guardianship not an equitable trust. § 1331. Guardianship not traceable to writ of ravishment of ward. § 1332. Some have called it a usurpation. § 1333. Referable to the crown as parens patriæ. § 1334. It naturally devolved upon the Court of Chancery. § 1335. Appeal lies to House of Lords from order of chancellor in case of infants, but to Privy Council in case of idiots and lunatics. § 1336. Ground of special commission for lunatics and idiots. § 1337. The jurisdiction over infants is now firmly established. § 1338. Will appoint guardians over infant's property. § 1338 a. Will not interfere with testamentary guardians, except for good cause. § 1339. Will, for cause, remove, or control, guardians. § 1340. Will aid guardians in control of wards. § 1341. Will even remove infants from the control of parents. § 1341 a. Will determine which parent shall educate child. § 1342. This portion of the jurisdiction firmly established. § 1343. The father, primâ facie, may control his child. § 1847 a, 1347 b. But it must be upon very good grounds. The interference of the court more tolerable than that of strangers. § 1347 c. The court will not enforce contracts affecting guardianship. § 1847 d. The court of appeal will not ordinarily control appointments of guardians by inferior courts. § 1347 e. The will of the father carried into effect in the courts of equity in regard to the education of his children, especially in regard to religious teaching. § 1347 f. The income of infant's estate applied for his maintenance where father not of ability to maintain. § 1348. Origin of jurisdiction not more difficult than many others. § 1349. It is an incident of its jurisdiction of the property. § 1350. Rules of the civil law on the subject. § 1351. This jurisdiction is limited to cases brought by bill. § 1352. Any infant whose property is in litigation in equity is regarded as a waru of the court. § 1352 a. But an infant may be put under guardianship, in equity, whose property and guardian are in a foreign country. § 1353. Equity exercises special vigilance in regard to its wards. § 1354. Will direct the mode of maintenance. § 1354 a. The infant's property can only be used when father not of ability. § 1354 b. Will sometimes make such orders as to infants resident abroad. § 1355. Will not ordinarily expend more than income. § 1355 a. Court cannot exercise discretion reposed in trustees. § 1356. Will exercise vigilance over infant's property. § 1357. Will not commonly sanction the conversion of estate. § 1358. Contempt to marry its ward without sanction of court. § 1359. Recognizance that ward shall not marry in contempt of court. § 1360. Will interdict marriage by injunction. § 1361. Will fix settlement, and require husband to make it. § 1361 a. Courts of equity will not interfere with the duties of foreign guardians except in cases of abuse.] § 1327. We shall next proceed to the consideration of another portion of the exclusive jurisdiction of courts of equity, partly arising from the peculiar relation and personal character of the parties, who are the proper objects of it, and partly arising from a mixture of public and private trusts, of a large and interesting nature. The jurisdiction here alluded to, is that which is exercised over the persons and property of infants, idiots, lunatics, and married women. § 1328. And, in the first place, as to the jurisdiction over the persons and property of INFANTS. The origin of this jurisdiction in chancery (for to that court it is practically confined, as the Court of Exchequer, as a court of equity, does not seem entitled to exercise it) 1 is very obscure, and has been a matter of much 1 3 Black. Comm. 427; 2 Fonbl. Eq. B. 2, Pt. 2, ch. 2, § 1, note (a). Mr. Justice Blackstone (3 Black. Comm. 427) has said: "The Court of Exchequer can only appoint a guardian ad litem, to manage the defence of the infant, if a |