For orders for guardian. See Hand's Pract. 236. 1 Turn. Pract. 385.

For order upon death of guardian. See Hand's Pract. 237.

NOTES.

(1) Order for Guardian on Petition.

The form of a decree for a guardian and maintenance is the same with that of an order on petition.

It seems that the first case to be found of a guardian appointed by the Chancellor on petition, without bill, was in 1696, in the case of Hampden. See Co. Litt. 88. b. note 16.

But it has been frequently done since. See Mellish v. De Costa, 2 Atk. 14. S. C. (Villareal v. Mellish) 1 West, 299. 2 Swan. 533. note. Ex parte Birchell, 3 Atk. 813. Ex parte Jordan, 1 Dick. 294. Ex parte Champney, 1 Dick. 350. Ex parte Salter, 2 Dick. 769. S. C. 3 Bro. 500. Ex parte Mountfort, 15 Ves. 445. Corbet v. Tottenham, 1 Ba. & Be. 60.

So the right to guardianship may be determined on petition. Eyre v. Countess of Shaftesbury, 2 P. & W. 120. Teynham v. Lennard, 2 Bro. P. C. 539. Ex parte Earl of Ilchester, 7 Ves. 348. But see Ex parte Hopkins, 3 P. W. 154.

So where a testamentary guardian declines to act, a guardian may be appointed on petition. O'Keeffe v. Casey, 1 Sch. and Lef. 106.

But a testamentary guardian cannot be removed for misconduct without a bill. S. C.

An order may be obtained for delivery of the custody of an infant upon the infant being brought up by habeas corpus. In the matter of the children of the Earl of Westmeath, Appendix (1). Lyons v. Blenkin, Ib. But see Ex parte Hopkins, 3 P. W. 154. note A.

But the better mode of proceeding is by petition. See Lyons v. Blenkin, Jac. 254. and case referred to in note.

Order for Maintenance on Petition.

Sir Joseph Jekyl was the first judge who made orders for maintenance on petition, without a bill being filed. See Ex parte Richards, 3 Atk. 518. Ex parte Odel, and Ex parte Peploe, cited 2 Atk.

315.

And the precedent has since been followed. Ex parte Whitfield, 2 Atk. 315. Ex parte Thomas, Ambl. 146. Ex parte Kent, 3 Bro. 88.

Ex parte Salter, 3 Bro. 500. S. C. 2 Dick. 769. Ex parte Mountfort, 15 Ves. 445. Ex parte Myerscough, 1 J. & W. 151.

And the costs of the petition will be allowed to the guardian in his accounts. Ex parte Thomas, supra. Ex parte Salter, supra.

But maintenance will not be ordered on petition, except in special cases, as where there is a specific fund for maintenance. Ex parte Mountfort, 15 Ves. 448. Or where the property is very small. S. C.

In Ex parte Mountfort, supra, it is said that if the property of the infant exceeds 1007. a year, a bill must be filed. But in Ex parte Myerscough, supra, maintenance was ordered on petition, though the property was stated to be about 2007. a year.

Where the infant had not an absolute interest, the Court refused to confirm the Master's report upon a petition, but directed a bill to be filed. Fairman v. Green, 10 Ves. 47. But see Ex parte Kebble, 11 Ves. 606.

When it is necessary to take accounts in the Master's office, a bill must be filed. Corbet v. Tottenham, 1 Ba. & Be. 60.

So where trustees have a discretionary power as to maintenance. S. C.

Where Infant entitled to Real Estate.

Formerly, where an infant was entitled to real estate, an order might be obtained for a guardian and maintenance on petition, although the property was worth 2007. a year. In re Man, Appendix (2).

But of late, where an infant is entitled to real estate, maintenance will not be allowed without a bill, unless the property is under 1007. a year. In re Molesworth, M. R. 25th June, 1825. MS. In this case the Master of the Rolls said that he had conferred with the Lord Chancellor on the point.

It seems that formerly, where the infant was entitled to real estate, the appointment of a guardian was thought sufficient without the appointment of a receiver. In re Man, supra. In re Patton, Ib.

And where a receiver was thought necessary, an order for a receiver has been made on petition. Ex parte Odel, cited 2 Atk. 315.

But it has since been held that the Court has no jurisdiction to appoint a receiver unless upon a bill filed. Ex parte Whitfield, 2 Atk. 315. Ex parte Mountfort, 15 Ves. 445. And see Anon. 1 Atk. 489. S. C. 1 West, 347.

(2) Reference as to Guardians.

Where the property of the infant is very small, a reference as to the guardianship will be dispensed with; as where it consisted of a pension of 157. during minority. In re Jones, 1 Russ. 478. And see cases referred to in Ex parte Wheeler, 16 Ves. 266.

But the Master of the Rolls refused to make the order without a reference, although the property did not exceed 15001. Ex parte Wheeler, supra. And see Ex parte Janion, 1 J. & W. 395.

Where the infant is of the age of fourteen, he may choose a guardian, who will be appointed without a reference. Ex parte Edwards, 3 Atk. 519. In re Man, Appendix (1).

Where a person had been appointed guardian by the will of the father, but declined to act, a reference was directed, with liberty to the person to attend the Master. In re Patton, Appendix (2).

In Elwes v. Const, 1 Mad. Chan. 334. note. where a father by will named persons as guardians of his illegitimate children, it was held, that a reference was necessary, to see if they were proper perBut persons so named, have been appointed guardians without a reference. Peckham v. Peckham, 2 Cox, 46. Ward v. St. Paul, 2 Bro. 583. Chatteris v. Young, 1 J. & W. 106.

sons.

One of three persons jointly appointed guardians having died, the survivors were appointed without a reference.

2 Sim. 41.

Hall v. Jones,

That a joint appointment of guardians by the Court does not survive. See Bradshaw v. Bradshaw, 1 Russ. 528. Otherwise in the case of testamentary guardians. See Eyre v. Countess of Shaftesbury, 2 P. W. 103.

(3) The order is that the Master shall approve, not that he shall appoint, as in the case of a receiver. See Bowersbank v Colasseau, 3 Ves. 165.

(4) In all reports of guardians and maintenance of infants mention should be made of the age of the infants, and of the nature and amount of their fortunes, and of the evidence or grounds upon which any particular persons are approved of as guardians. And where guardians are approved of, it should be stated whether such guardians are willing to enter into a recognizance before the Master, duly to account for such part of the infant's fortune as shall come to their hands, as the Court shall direct. See Circular Letter of the

Secretary of the Lord Chancellor to the Masters, of the 6th of August, 1777. 1 Turn. Pract. 397.

(5) Reference as to Maintenance.

Where the property of the infant is very small, a reference will also be dispensed with as to maintenance. Ex parte Green, 1 J. & W. 253. Ex parte Dudley, Ib. 254. note.

Where the property of the infants did not exceed 207. a year each, an order was made for maintenance without a reference. Kilpatrick v. Kirkpatrick, M. R. 27th July, 1829. MS.

APPENDIX (1).

Order for Habeas Corpus for Delivery of Children to Father. [The order was made on petition.]

His Lordship doth order that a writ of Habeas Corpus do issue, returnable immediately, directed to the said Emily Mary Marchioness of Salisbury, and Emily Anne Bennett Elizabeth Countess of Westmeath, to bring before his Lordship the bodies of Lord Delvin and Lady Rosa Nugent, at his Lordship's room at Westminster, on Saturday morning the 19th instant, at 11 o'clock. In the matter of the Children of the Earl of Westmeath, L. C. 16th June, 1819. Reg. Lib. A. 1818. fol. 1359.

Order on Habeas Corpus for Delivery of Children to Father.

His Lordship doth order that the bodies of the said Lord Delvin and Lady Rosa Nugent, the children of the said Earl of Westmeath, be delivered to him. In matter of Children of Earl of Westmeath, L. C. 23d June, 1819. Reg. Lib. A. 1818. fol. 1534. S. C. Jac. 251. noté.

Order for Habeas Corpus for bringing up Children on application of Father.

[The order was made on motion.]

His Lordship doth order that a writ of Habeas Corpus do issue, directing the said defendants George Blenkin and Mary his wife to bring into this Court the plaintiffs Mary Lyons, Frances Lyons and Jane Beatson Lyons the infant children of the said John Lyons, at the sitting of this Court, at Westminster Hall, on the 10th of February next. Lyons v. Blenkin, L. C. 15th January, 1820. Reg. Lib. B. 1819. fol. 208. S. C. Jac. 247.

Writ of Habeas Corpus in the above case.

George the Third &c.-To George Blenkin and Mary his wife, greeting. We command you, that you do on Thursday, the 15th day of February next, bring before us in our Court of Chancery, at the sitting thereof at Westminster Hall, the bodies of Mary Lyons, Frances Lyons, and Jane Beatson Lyons, or by whatsoever name cr addition they are known or called, who are detained in your custody, to perform and abide such order as our said Court shall make in their behalf. And hereof fail not, and bring this writ with you. Witness ourself, at Westminster, the 29th day of January, in the 60th year of our reign. [From a MS. of Mr. Jacob.]

The Return to the above Writ.

The within named George Blenkin and Mary his wife do hereby certify to the Right Honourable the Lord High Chancellor of Great Britain, that the within-named plaintiffs Mary Lyons, Frances Lyons, and Jane Beatson Lyons, are detained by and are under the protection of the said Mary Blenkin, in the parish of Sculcoates in the county of York, for the purpose of their being educated and maintained by her as their guardian, under the will of their grand-mother Mary Beatson deceased, and according to the trusts and directions for those purposes contained in the said will. Dated the 9th of February, 1820. (From a MS. of Mr. Jacob.) S. C. Lyons v. Blenkin, supra.

APPENDIX (2).

Order appointing Guardian in the nature of Receiver. Whereas the said John Man, on the 9th day of October last, preferred his petition to the Right Honourable the Lord High Chancellor, setting forth that the petitioner is entitled, by virtue of the settlement made on the marriage of the petitioner's late father and mother, to a real estate of about the clear yearly value of 2001.; that the petitioner's father and mother are both dead, without appointing any person guardian to the petitioner; and the petitioner being now about the age of nineteen years, is not, in law, capable to manage the said estate, and is desirous that W. B., of Lincoln's Inn, Esq. should be appointed guardian to the petitioner; and forasmuch as &c. It was prayed that &c. Whereupon all parties concerned were ordered to attend &c. And counsel for the petitioner this day attending accordingly, upon hearing the said