petition read, and what was alleged by the petitioner's counsel, and the said petitioner John Man being of the age of nineteen years and upwards, and in court desiring that the said W. B. may be assigned his guardian, his Lordship doth order that the said W. B. Esq. be appointed guardian to the said petitioner J. M. the infant, and that it be referred to Mr. A. one &c. to consider of a proper maintenance for the said petitioner J. M. the infant, as well for the time past as to come, and state the same to the Court; whereupon such further order shall be made relating thereto as shall be just. And that what shall be allowed for the past maintenance of the said petitioner J. M. the infant, be paid to the person or persons that have maintained him; and what shall be allowed for the time to come be paid to the person who shall maintain him. On the behalf of John Man, an infant, L. C. 4th November, 1747. Reg. Lib. B. 1747. fol. 5.

The like Order.

[Mr. Drummond was appointed guardian to the petitioner by the father's will, but declined to act.]

Upon consideration this day had by the Right Honourable the Master &c. of the humble petition of the said William Patton, shewing that E. N. deceased by her will dated the 7th of May, 1736, devised to the petitioner, his heirs and assigns, some freehold chambers in Lincoln's Inn New Square, in the county of Middlesex, and that David Patton, Esq. the petitioner's father, died some time since, having made his will, dated the 25th of June, 1743, and thereof appointed the petitioner's sister, Dorothea Patton, sole executrix; and did thereby &c. That the petitioner's said sister, some time since, on behalf of the petitioner, caused the said chambers so devised to him to be repaired, and afterwards let the same; but for want of a person properly authorised to take care of the petitioner's estate and interest in the said chambers, and to receive the rents and profits thereof for the petitioner's use, the tenants refuse to pay their rent, and thereby the petitioner will be greatly prejudiced, unless some person be speedily authorised to receive the same. It is ordered, that it be referred to Mr. S. one &c. to approve of a proper person to be guardian to the petitioner; and the said Mr. Drummond, and all other parties concerned, are to have notice to attend the said Master, and to be at liberty to propose a guardian, or guardians, for the said petitioner; and after the said Master shall have

made his report, such further order shall be made as shall be just. On the behalf of William Patton, an infant, M. R. 12th July, 1748. Reg. Lib. B. 1747. fol. 392.

No. IX.

ORDER CONFIRMING REPORT OF GUARDIAN.

His Honour doth order, that the said report be confirmed, and that the said Dorothea Patton, the petitioner's sister, be appointed guardian to the petitioner William Patton, to take care of and manage the petitioner's person and estate. In matter of Patton, M. R. 5th August, 1748. Reg. Lib. B. 1747. fol. 412.

For order for confirming report of guardian. See Hand's Pract. 187. Do. of Maintenance. Ib. 189.

NOTE.

Order confirming Report.

In Cavendish v. Mercer, 5 Ves. 195. note, the Master's report as to maintenance was confirmed on motion. See Greenwell v. Greenwell, 5 Ves. 199. But the practice of confirming these reports on motion is irregular. Greenwell v. Greenwell, supra. And consequently exceptions do not lie to them. Ex parte Nicholls, 1 Bro. 577. Whittaker v. Marlow, 1 Cox, 285. 732. Otherwise with respect to receivers. Receivers, No. I. Note (7), post. The report is brought before the Court upon petition, when the Court will confirm or vary it. Price v. Shaw, supra. And see Whittaker v. Marlar, supra.

Price v. Shaw, 2 Dick.
See Decrees respecting

The order contains no restriction as to marriage. In matter of Patton, supra. See Eyre v. Countess of Shaftesbury, 2 P. W. 113. But see Recognizance, post.

Recognizance.

The guardian must enter into a recognizance, duly to account for the infant's property. See 1 Turn. Pract. 388. 397.

The recognizance must be with two sureties. Dr. Davis's case, 1 P. W. 698.

It must also be conditional, that he shall not permit or suffer the infant to marry without the consent of the Court. S. C. Eyre v. Countess of Shaftesbury, 2 P. W. 112.

But under special circumstances the form may be altered, as that

the infant shall not be married without leave of the Court by the consent, privity, or connivance of the guardian. S. Cs.

No. X.

DIRECTION FOR REFERENCE WHETHER FATHER OF ABILITY. (1)

His Honour doth think fit &c. that it be referred to Mr. A. one &c. to see what is fit and proper to be allowed for the maintenance and education of the defendants the infants for the time past (2) and to come, and whether the plaintiff William Bailey the father is of sufficient ability to maintain the said defendants the infants or not, and state the same to the Court, and thereupon such further order shall be made relating thereto as shall be just. Bailey v. Arscot, M. R, 20th May, 1747. Reg. Lib. A. 1746. fol. 378.

NOTES.

(1) Ability of Father.

Generally, maintenance will not be allowed out of the property of infants during the life of the father, where he is of ability to maintain them. See Fawkner v. Watts, 1 Atk. 408. Jackson v. Jackson, 1 Atk. 514. Butler v. Butler. 3 Atk. 60. Darley v. Darley, 3 Atk. 399. And this rule has been held to apply notwithstanding the gift to the infants has contained an express provision for maintenance. Hughes v. Hughes, 1 Bro. 387. And see Andrews v. Partington, 3 Bro. 60. S. C. 2 Cox, 223. Mundy v. E. Howe, 4 Bro. 224. Unless amounting to an express gift to the father. Hughes v. Hughes, 1 Bro. 388. Andrews v. Partington, supra. But the con

trary has been since held. Hoste v. Pratt, 3 Ves. 733.

The ability of the father is to be estimated not merely with reference to his own circumstances but to the state of his family and the expectations of the infants. See Buckworth v. Buckworth, 1 Cox, 80. And on this principle maintenance has been allowed where the father had 60007. a year. Jervoise v. Silk, Coop. 52.

The father not being of ability, maintenance will be allowed, although there is no express provision in the gift to the children for that purpose. See Erratt v. Barlow, 14 Ves. 202. Cavendish v. Mercer, 5 Ves. 195. note. Fendall v. Nash, 5 Ves. 197. note. The father having become bankrupt, maintenance was ordered

without a reference as to his ability. Kilpatrick v. Kirkpatrick, Rolls, 27th July, 1829. MS.

Ability of Mother.

In Hughes v. Hughes, 1 Bro. 388. the Lord Chancellor said, that it was the practice to refer it to the Master to inquire whether the parents were of ability (not confining it to the father.)

But in Haley v. Bannister, 4 Mad. 275. it was held, that if the father was not of ability, maintenance would be allowed, without reference to the ability of the mother, who had a separate estate. And see Cavendish v. Mercer, 5 Ves. 195. note.

In Fawkner v. Watts, 1 Atk. 408. Lord Hardwicke seems to have thought, that where the father was dead, maintenance would not be ordered, without reference to the ability of the mother. And see what is said by Ashhurst, in Billingsly v. Critchet, 1 Bro. 268.

But where the father is dead, it seems that maintenance will be allowed without reference to the ability of the mother. Lanoy v. Duchess of Athol, 2 Atk. 447. Ex parte Lord Petre, 7 Ves. 403. Where the mother was insolvent, part of the maintenance was diHeysham v. Heysham, 1 Cox, 179. Where the mother has married a second time, maintenance will be allowed. Billingsly v. Critchet, supra. And see Tubb v. Harrison, 4 T. R. 118. Greenwell v. Greenwell, 5 Ves. 194.

rected to be paid to her.

(2) Maintenance for time past.

It was formerly held, that although the father was not of ability to maintain his children, maintenance could not be allowed for the time past. Hughes v. Hughes, 1 Bro. 387.

2 Bro. 231. Andrews v. Partington, 3 Bro. 60.

Hill v. Chapman,

S. C. 2 Cox, 223.

But the practice has since been altered in this respect, and maintenance will be allowed to a parent, if not of ability for the time past, as well as to come. Sherwood v. Smith, 6 Ves. 454. Reeves v. Brymer, 6 Ves. 60. And see Sisson v. Shaw, 9 Ves. 288. Maberly v. Turton, 14 Ves. 500.

An allowance for past maintenance cannot be deducted from the legacy to a child by a father. Jeffreys v. Jeffreys, 3 Atk. 123.

Nor from a debt due to a child from a father, except in favour of creditors. Bank of England v. Morris, cited Ib.

A reference with a view to an increased allowance for maintenance for the time past has been made under special circumstances. Rainsford v. Freeman, 1 Cox, 417.

Special Directions.

A liberal allowance will be made for the maintenance of an infant with a view to the circumstances of his family. See Pierpoint v Lord Cheney, 1 P. W. 493. Harvey v. Harvey, 2 P. W. 22. Lanoy v. Duke of Athol, 2 Atk. 447. Petre v. Petre, 3 Atk. 511. Roach v. Garvan, 1 Ves. 160. Hill v. Chapman, 2 Bro. 231.. Heysham v. Heysham, 1 Cox, 179. Exp. Lord Petre, 7 Ves. 403. Tweddell v. Tweddell, Turn. 13. Even in favour of an illegitimate child. Bradshaw v. Bradshaw, 1 J. & W. 647. In Burnet

v. Burnet, 2 Dick. 602. S. C. I Bro. 179. a special direction for this purpose was refused. But see Hoste v. Pratt, 3 Ves. 733. Mundy v. Earl Howe, 4 Bro. 227.

No. XI.

REFERENCE FOR MARRIAGE OF WARD. Whereas the said defendants John Middlemarsh and Thomas Dawson did, on the 27th instant, prefer their petition unto the Right Honourable the Master, &c. shewing, among other things, that &c.; and therefore it was prayed that &c. Whereupon the parties concerned were ordered to attend his Honour on the matter of the said petition. And counsel for the defendants the petitioners, the defendant Hester Williams, and the plaintiffs this day attending accordingly. Upon hearing the said pettion read, and what was alleged by the counsel for the said parties, his Honour doth order that it be referred to the said Master to see whether the match proposed for the defendant Hester Williams, the infant, be a fitting match for her or not. And the said John Le Keux is to lay proposals before the said Master, of what settlement he intends to make on the said defendant Hester. And the said Master is to state the same, with his opinion thereon to the Court. And after the said Master shall have made his report, such further order shall be made relating thereto as shall be just. Lawrence v. Middlemarsh, M. R. 31st October, 1746. Reg. Lib. B. 1746. fol. 2.

For like order. See 2 Turn. Pract. 427.