231.

GUARDIANS, domestic relations. Guardians are divided into, guardians of the person, in the civil law called tutors; and guardians of the estate, in the same law known by the name of curators; for the distinction between them, vide article Curatorship, and 2 Kent, Com. 186.

Theob. P. & S. ch. 2 and 3; Smith | The person over whom a guardian is on Mer. Law, ch. 10; 3 Saund. 414, appointed must be an infant; for n. 5; Wheat. Dig. 182; 14 Wend. after the party has attained his full age he is entitled to all his rights, if of sound mind, and, if not, the person appointed to take case of him is called a committee, (q. v) No guardian of the person can be appointed over an infant whose father is alive, unless the latter be non compos mentis, in which case one may be appointed as if the latter were dead.— 4thly. After his appointment the guardian of the person is considered as standing in the place of the father, and of course the relative powers and duties of guardian and ward correspond, in a great measure to those of parent and child; in one prominent matter they are different. The father is entitled to the services of his child, and is bound to support him; the guardian is not entitled to the ward's services, and is not bound to maintain him out of his own estate.

2. A guardian of the estate is one who has been lawfully invested with the power of taking care and managing the estate of an infant. 1 John. R. 561; 7 John. Ch. R. 150. His appointment is made in the same manner as that of a guardian of the person. It is the duty of the guardian to take reasonable and prudent

1. A guardian of the person is one who has been lawfully invested with the care of the person of an infant, whose father is dead. The guardian must be properly appointed; he must be capable of serving; he must be appointed guardian of an infant; and after his appointment he must perform the duties imposed on him by his office. 1st. In England and in some of the states, where the English law has been adopted in this respect, as in Pennsylvania, Rob. Dig. 312, by stat. 12 Car. II. c. 24, power is given to the father to appoint a testamentary guardian, for his children, whether in esse, or in ventra sa (leur) mere. According to Chancellor Kent, this statute has been adopted in the state of New York, and, probably, throughout this country. 2 Kent, Com. 184. The statute of Connecticut, however, is an exception, there the father can-care of the estate of the ward, and not appoint a testamentary guardian. 1 Swift's Dig. 48. All other kinds of guardians (to be hereafter noticed) have been superseded in practice by guardians appointed by courts having jurisdiction of such matters. Courts Guardians have also been divided of chancery, orphans' courts, and into guardians by nature; guardians courts of a similar character having by nurture; guardians in socage; jurisdiction of testamentary matters testamentary guardians; statutory in the several states, are invested guardians; and guardians ad litem. generally with the power of appoint- 1. Guardians by nature, is the ing guardians.-2dly, The person father, and, on his death, the mother; appointed must be capable of perform- this guardianship extends only to the ing the duties, an idiot therefore custody of the person, 3 Bro. C. C. cannot be appointed guardian.-3dly, 186; 1 John. Ch. R. 3; 3 Pick. R.

manage it in the most advantageous manner; and when the guardianship shall expire, to account with the ward for the administration of the estate.

213; and continues till the child shall acquire the age of twenty-one years. Co. Litt. 84 a.

2. Guardian by nurture, occurs only when the infant is without any other guardian, and the right belongs exclusively to the parents, first the father, and then the mother. It extends only to the person, and determines, in males and females at the age of fourteen. This species of guardianship has become obsolete.

3. Guardian in socage, has the custody of the infant's lands as well as his person. The common law gave this guardianship to the next of blood to the child to whom the inheritance could not possibly descend this species of guardianship has become obsolete, and does not perhaps exist in this country; for the guardian must be a relation by blood who cannot possibly inherit, and such a case can rarely exist.

4. Testamentary guardians; these are appointed under the stat. 12 Car. II., above mentioned; they supersede the claims of any other guardian, and extend to the person, and real and personal estate of the child, and continue till the ward arrives at full age.

in a civil action, has power to appoint a guardian ad litem when he has no guardian, for as the infant cannot appoint an attorney, he would be without assistance if such a guardian were not appointed. The powers and duties of a guardian ad litem are confined to the defence of the suit. F. N. B. 27; Co. Litt. 88 b, note (16); Ib. 135 b, note (1).

GUARDIANS OF THE POOR. The name given to officers whose duties are very similar to those of overseers of the poor, (q. v.), that is, generally to relieve the distresses of such poor persons who are unable to take care of themselves.

GUARDIANSHIP, persons, is the power or protective authority given by law, and imposed on an individual who is free and in the enjoyment of his rights, over one whose weakness on account of his age, renders him unable to protect himself. Vide Tutor.

GUEST. A traveller who stays at an inn or tavern with the consent of the keeper. Bac. Ab. Inns, C 5; 8 Co. 32; and if after having taken lodgings at an inn, he leaves his horse there, and goes elsewhere to lodge, he is still to be considered a 5. Guardians appointed by the guest. But not if he merely leaves courts, by virtue of some statutory goods for which the landlord receives authority. The distinction of guar- no compensation. 1 Salk. 388; 2 dians by nature, and by socage, ap- Lord Raym. 866; Cro. Jac. 188, pear to have become obsolete, and The length of time a man is at an have been essentially superseded in inn makes no difference, whether he practice by the appointment of guar-stays a day, or a week, or a month, dians by courts of chancery, orphans' or longer, so always, that, though courts, probate courts, and such other courts as have jurisdiction to make such appointments. Testamentary guardians might, as well as those of this class, be considered as statutory guardians, inasmuch as their appointment is authorised by a statute.

6. Guardian ad litem, is one appointed for the infant to defend him in an action brought against him. Every court when an infant is sued

not strictly transeuns, he retains his character as a traveller. But if a person comes upon a special contract to board and sojourn at an inn, he is not in the sense of the law a guest, but a boarder. Bac. Ab. Inns, C 5; Story, Bailm. § 477. Innkeepers are generally liable for all goods, belonging to the guest, brought within the inn. It is not necessary that the goods should have been in the special

H.

brought before him that he might be liberated. Dig. 43, 29, 1.

contained in many of the state constitutions. In order still more to secure the citizen the benefit of this great writ, a heavy penalty is inflicted upon the judges who are bound to grant it, in case of refusal.

It is proper to consider, 1, when it is to be granted; 2, how it is to be served; 3, what return is to be made to it; 4, the hearing; 5, the effect of the judgment upon

it.

1. The writ is to be granted whenever a person is in actual confinement, committed or detained as aforesaid, either for a criminal charge, or, as in Pennsylvania and New York, in all cases where he is confined or restrained of his liberty, under any colour or pretence whatsoever. But persons discharged on bail will not be considered as restrained of their liberty so as to be entitled to a writ of habeas corpus directed to their bail. 3 Yeates, R. 263; 1 Serg. & Rawle, 356.

The habeas corpus act has been substantially incorporated into the jurisprudence of every state in the union, and the right to the writ has been secured by most of the constitutions of the states, and of the United States. The statute of 31 Car. 2, c. 2, provides that the person imprisoned, if he be not a prisoner convict, or in execution of legal process, or committed for treason or felony, plainly expressed in the warrant, or has not neglected wilfully by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, may apply by any one in his behalf, in vacation time, to a judicial officer for the writ of habeas corpus, and the officer upon view of the copy of the warrant of commitment, or upon proof of denial of it after due demand, must allow the writ to be directed to the person in whose custody the party is detained, and made returnable immediately before him. And, in term time, any of the said prisoners may obtain his writ of habeas corpus, by applying to the proper court. By the habeas corpus law of Penn-ers. sylvania, (the act of 18 February, 1785,) the benefit of the writ of habeas corpus is given in "all cases where any person, not being committed or detained for any criminal or supposed criminal matter," who "shall be confined or restrained of his or her liberty, under any colour of pretence whatsoever." A similar provision is contained in the habeas corpus act of New York. Act of 21st April, 1818, sect. 41, ch. 277.

The constitution of the United States, art. 1, s. 9, n. 2, provides that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it;" and the same principle is

2. The writ may be served by any free person, by leaving it with the person to whom it is directed, or left at the gaol or prison with any of the under officers, under keepers, or deputy of the said officers or keep

In Louisiana it is provided that if the person to whom it is addressed shall refuse to receive the writ, he who is charged to serve it, shall inform him of its contents; if he to whom the writ is addressed conceal himself, or refuse admittance to the person charged to serve it on him, the latter shall affix the order on the exterior of the place where the person resides, or in which the petitioner is confined. Lo. Code of Pract. art. 803. The service is proved by the oath of the party making it.

3. The person to whom the writ is addressed or directed, is required to make a return to it, within the time prescribed; he either complies or he does not. If he complies, he

when he is detained for a contempt, specially and plainly charged in the commitment, by some existing court having authority to commit for contempt; and 5, when he refuses or neglects to give the requisite bail in a case bailable of right. The judge is not confined to the return, but he is to examine into the causes of the imprisonment, and then he is to discharge bail, or remand, as justice shall require. 2 Kent, Com. 26; Lo. Code of Prac. art. 819.

must positively answer; 1, whether er is not bailable; 3, when he is a he has or has not in his power or convict in execution, or detained in custody, the person to be set at lib-execution by legal civil process; 4, erty, or whether that person is confined by him; if he return that he has not, and has not had hitn in his power or custody, and the return is true, it is evident that a mistake was made in issuing the writ; if the return is false he is liable to a penalty and other punishment for making such a false return. If he return that he has such person in his custody, then he must show by his return further by what authority and for what cause he arrested or detained him. If he does not comply, he is to be considered in contempt of the court under whose seal the writ has been issued, and liable to a severe penalty, to be recovered by the party aggrieved.

5. It is provided by the habeas corpus act, that a person set at liberty by the writ, shall not again be imprisoned for the same offence, by any person whomsover, other than by the legal order and process of such court wherein he shall be bound by recognizance to appear, or other court having jurisdiction of the cause. 4 Johns. R. 318; 1 Binn. 374; 5 John. R. 282.

Vide, generally, Bac. Ab. h. t.; Vin. Ab. h. t.; Com. Dig. h. t. ; Nels. Ab. h. t. ; the various American Digests, h. t.; Lo. Code of Prac. art. 791 to 827; Dane's Ab. Index, h. t.

HABEAS CORPUS AD DELIBERANDUM ET RECIPIENDUM, practice, is a writ which lies to remove a prisoner to take his trial in the county where the offence was Bac. Ab. Habeas Cor

4. When the prisoner is brought before the judge, his judicial discretion commences, and he acts under no other responsibility than that which belongs to the exercise of ordinary judicial power. The judge or court before whom the prisoner is brought on a habeas corpus, examines the return and papers, if any, referred to in it, and if no legal cause be shown for the imprisonment or restraint; or if it appear, although legally committed, he has not been prosecuted or tried within the periods required by law, or that for any other cause the imprisonment cannot be legally continued, committed. the prisoner is discharged from cus-pus, A. tody. For those offences which are HABEAS CORPUS AD FACIbailable when the prisoner offers suf- ENDUM ET RECIPIENDUM, ficient bail, he is to be bailed. He practice, is a writ which issues out is to be remanded in the following of a court of competent jurisdiction, cases; 1, when it appears he is de- when a person is sued in an inferior tained upon legal process, out of court, commanding the inferior some court having jurisdiction of criminal matters; 2, when he is detained by warrant, under the hand and seal of a magistrate for some offence for which by law, the prison

judges to produce the body of the defendant, together with the day and cause of his caption and detainer, (whence this writ is frequently denominated habeas corpus cum causâ,)