Act of January 30, 1819. R. C. ch. 173.

prisoner or prisoners, according to the warrant or precept of commitment, until he shall be discharged by the due course of the laws of the United States:(b) Provided however, That no debtor or other person arrested on mesne process, or under execution by the marshal of the district of Virginia, or any of his deputies, shall be conveyed to any other jail than that of the corporation or county within which such debtor or other person may reside. From Nov. 12, 1789, c. 41; 13 Stat. Larg. 3; and Dec. 11, 1795, c. 184, R. C.

32. § 2. The keeper of every jail aforesaid shall be subject to the same pains and penalties for any neglect or failure of duty herein, as he would be subject to, by the laws of this commonwealth, for a like neglect or failure, in the case of a prisoner committed under the authority of the said laws. 1789, c. 41, R. C.(a)

33. § 3. Provided always, That the United States do pay, or cause to be paid, for the use and keeping of such jails, at the rate of fifty cents per month for each prisoner, that shall under that authority be committed thereto during the time such prisoner shall be therein confined; and, moreover, do support such of the said prisoners as shall be committed for offences. Ibid.*

Act of February 18, 1819-January 1, 1820. R. C. ch. 108.

1. § 1. Any father, (a) even if he be not of twenty-one years of age, may, by deed or last will and testament, either of them being executed in the presence of two credible witnesses, grant or devise the custody and tuition of his child,† (which had never been married,) although it be not born, during any part(1) of the infancy of such child, to whomsoever he will; and such grant or devise heretofore or hereafter to be made, shall give the grantee or devisee the same power over the person of the child, as a guardian in common socage hath, (b) and authorize him, by actions of ravishment of ward, or trespass, to recover the child with damages for the wrongful taking or detaining of him or her, for his or her use, and for the same use to undertake the care and management, and receive the profits of the ward's estate, real(c) and personal, and prosecute and maintain any such actions and suits concerning the same as a guardian in common socage may do. May 1730, c. 8, § 15, 4 Stat. Larg. 285; Oct. 1748, c. 4,5 Stat. Larg. 449; Oct. 1785, c. 86, 12 Stat. Larg. 194; 1792, c. 95, R. C.; 12 Car. 2, c. 24.

2. § 2. Any guardian, so appointed by the last will and testament of any person, which shall be legally proved and recorded in any court, shall appear openly in such court, before the exercise of any authority over the minor or his estate, and declare his acceptance of the guardianship, which shall be recorded, and shall give bond and security in manner hereinafter directed, unless the testator has otherwise directed by his will. Dec. 12, 1794, c. 172, R. C.; 1 Stat. Larg. 23, Shep. 298.

3. § 3. If any such guardian shall fail or neglect to appear in the court where such last will and testament shall be recorded, within the space of six

(a) The provisions of this section are, in substance, the same as those of the acts referred to; and they do not differ from 12 Car. 2, c. 24. See the acts.

A guardian may be appointed without using the term; no formal words are prescribed but to appoint a guardian by implication, the powers essential to the office must be conferred. Gaines et al. v. Spann's er'rs et al. 2 Brock. R. 81, 83.

(1) 'Tis advisable to specify the term, as until such an age, or "during minority," or

"until 21," &c. See Ch. J. Vaughan's opinion in Besell v. Constable, Vaugh. 184-5.

Guardian appointed by the court continues to the infant's age of 21, unless revoked. Ross v. Gill et ux. 4 Call, 250.

But the marriage of a female ward ipso facto determines the guardianship of a common law guardian. Guerrant v. Hocker, 7 Leigh, 366.

(b) (c) See Mr. Hargrave's note, Co. Litt. 886 (13); and The King v. Isley et ux. 5 Adolp. & Ellis, 441.

Act of February 18, 1819—January 1, 1820. R. C. ch. 108.

months thereafter, he may be summoned and compelled to declare his acceptance or renunciation of such trust; and if every such guardian, appointed by any such last will and testament, shall renounce the same, which renunciation shall be recorded, the said court may and shall proceed to appoint and qualify some other person or persons to the guardianship. Ibid.

Act of February 11, 1825, Ses. Acts 1824-5, ch. 9, § 3, Sup. R. C. ch. 168, § 3, p. 226.

31. 3. The courts of the several counties and corporations within this commonwealth, shall have power, when it shall appear to them necessary, to appoint guardians of the infants of insane persons, whose authority as such shall continue during the insanity of the parent, unless the court, in the exercise of a sound discretion in relation to the interests of such infants, shall see fit, at any time, otherwise to order; in which case, they may remove one guardian and appoint another, or make such other order as they shall think best calculated to protect and secure those interests. Guardians appointed under this act, shall, as other guardians, give bond and security for the faithful execution of their office; and, during its continuance, shall, like others, be subject to the control of the courts; and the securities of such guardians shall be entitled to the like benefit and protection as is granted by the first section of this act to the securities of committees. See Sup. R. C. c. 168, § 1, p. 225.

Act of February 18, 1819-January 1, 1820. R. C. ch. 108.

4. 4. The superior courts of chancery, generally, within their respective jurisdictions, and the county and corporation courts in chancery, (d) within the limits of their jurisdictions, shall have power from time to time, to control guardians, and hear and determine all matters between them and their wards; to require security from any guardian in socage, when that caution shall seem necessary for prevention of any damage his ward may suffer, by neglect, mismanagement or malversation; and, if the security be refused or delayed, or if any guardian, of any description whatever, shall appear to have been guilty of a flagrant abuse of trust, to displace him, and appoint another in his stead; (e) and to give such directions, and make such rules and orders, as they shall think fit, for the government, maintenance, (f) and education of wards, and for the preservation of their estates, and the conduct of their guardians. Oct. 1785, c. 86, 12 Stat. Larg. 195; 1792, c. 95, R. C.

5. § 5. Every guardian appointed by a court, as well as every testamentary guardian, shall, in the court(g) by which he was appointed, or in which the

(d) The county and corporation courts, have no jurisdiction of these subjects, on their common law side; and, therefore, a superior court of law has no jurisdiction, by writ of error or otherwise, to revise their proceedings. Ficklin v. Ficklin, gen'l ct. June T. 1820.

(e) See Duke of Beaufort v. Berty, 1 Peere Wms. 702; Eyre v. Countess of Shaftsbury, 2 Peere Wms. 107; in the matter of Andrews, 1 Johns. Ch. R. 99; Spencer v. Earl Chesterfield, Amb. 146; Roach v. Garvan, 1 Ves. sen. 159; Ex parte Crumb, 2 Johns. Ch. R. 439.

(f) See Ex parte Myerscough, 1 Jacob & Walker, 151; matter of Bostwick, 4 Johns. Ch. R. 102; Ex parte Lakin, in the matter of Lakin, 4 Russell, 307.

(g) The taking a guardian's bond, is a ju

dicial act, to be done by the court, in open court. The court must be satisfied with the security, and designate him to the clerk, whose duty it is then to prepare the bond, &c. and not before. Therefore, where the court directed the clerk to take a bond with good security, not fixing the penalty, nor designating the sureties, the clerk was adjudged not to be liable for having failed to take bond with good security. Page, adm'r v. Taylor et al. 2 Munf. 492.

A person appointed guardian to an infant in another state, (ex. gr. Pennsylvania,) cannot, by virtue of that appointment, receive from the administrator, here, (New York,) the legacy or portion of the infant. The guardian must be appointed here and give competent security, to be approved by the court, before the payment of the infant's

Act of February 18, 1819-January 1, 1820. R. C. ch. 108.

acceptance of the trust reposed in him shall be recorded, give bond to the judge, judges, or justices of such court, with sufficient security, conditioned for the faithful execution of his office. And, if any court shall omit to take such bond, or take such security as shall not satisfy them of his or their sufficiency, which may be done as well by the surety's affidavit as otherwise, the ward, by an action on the case, against the judges or justices so making default, may recover so much of the damages, which the guardian and security shall be answerable for, as they shall be unable to pay. Ibid. and Dec. 1794, c. 172, R. C.

6. § 6. If any guardian refuse, or be unable to give the security required of him, the court may put the estate into the hands of a curator, the fittest they can prevail upon to undertake the care of it, to be accountable to such court; and, in that case, shall not be responsible for his ability. Oct. 1785, c. 86, 12 Stat. Larg. 195; 1792, c. 95, R. C.

7. § 7. Every guardian, and every curator, appointed by a court, shall at the first or second session after he has qualified himself in manner hereinbefore directed, deliver into such court an inventory, upon oath, of all the estate he shall have received; and, within two successive courts after the receipt of any other estate of the ward, an inventory of such other estate, to be entered of record, in a separate book to be kept for that purpose; and every such guardian and curator shall exhibit to such court, once in every year, which, if it be a county or corporation court, shall be in September, or at the next session, if there be none in that month, or oftener if he be specially required, accounts of the produce of the estate, of the sales and disposition of such produce, and of the disbursements; which accounts shall be examined by the court, or by such persons as the court shall refer them to; and, being found and certified, or reported, to be properly and fairly stated, and the articles to be justified by the vouchers, and the report in case of a reference being approved and confirmed by the court, shall, with the certificate or confirmation, be entered of record in the book aforesaid. And, if any article of such account shall, at any time thereafter, be excepted to, by the ward or his representative, it shall be incumbent on him to prove or shew the falsity or injustice thereof, unless notice on his behalf shall have been given, at the time of passing the accounts, that such article would be excepted to, and a memorandum of that notice shall have been entered on

money will be ordered. Morrell et al. v. Dickey, 1 Johns. Ch. R. 153.

For remedy against principal and sureties, see Call v. Ruffin, 1 Call, 333; Spottswood v. Dandridge et al. 4 Munf. 298.

Extent of liability, see The People v. By ron, 3 Johns. Cas. 53; Monell et al. v. Monell et al. 5 Johns. Ch. R. 283.

Where there are several guardians of an infant's estate, they may act either separately or in conjunction. They are jointly responsible for joint acts; and each is separately answerable for his separate acts and defaults. Such guardians having given a joint and several bond with surety for faithful performance, their rights and duties as guardians are not thereby varied; they are not, by such bond, made sureties for each other. But the surety is liable for their joint defaults, and for the separate defaults of each. Kirby et al. v. Turner et al. 1 Hopk. Ch. R. 309; Alston v. Munford, 1 Brock. R. 266, 278.

If an administratrix settles her administration account, in which a balance is found due to the estate of the intestate, and then qualifies as guardian of the infant children of the intestate, and receives [retains] their distributive shares, the sureties in the administration bond are absolved from the claim of the distributees, and the sureties in the guardian's bond are bound to them. Myers & al. v. Wade et al. 6 Rand. 444; and see Taylor et al. v. Deblois et al. 4 Mason's R. 131; Pratt et al. v. Northam et al. 5 Mason's R. 95, 108-111.

Administrator with the will annexed sells land under power given by testator's will, and takes bonds for the proceeds, payable to himself as guardian of testator's sisters, (legatee): Held, chargeable in his character of guardian, and his sureties for the guardianship responsible. Broadus et al. v. Rosson et al. 3 Leigh, 12; Alston v. Munford, 1 Brock. R. 266-267, and Tucker, Pt. 8 Leigh, 75.

477

,

GUARDIANS AND WARDS.

st of February 18, 1819-January 1, 1820. R. C. ch. 108.

esired to be entered. (a) Mar. 1642, act 34, 1 Stat. Larg. 260; .30, c. 8, § 19, 4 Stat. Larg. 286; May 1740, c. 7, 5 Stat. Larg. lb. and 1794, c. 172, R. C.

8. § 8. Every guardian or curator, who shall not deliver in such inventory, and render such accounts as aforesaid, shall, by order of the court to which he is amenable, be summoned, and if he remain in default, be compelled to perform his duty, or be displaced; for which purpose, the summons or other proper process may be directed to, and shall be executed by, the sheriff of any county wherein the guardian may be found. (Every judge or justice of the court, sitting therein, at any time during the term of session, in which such process ought to have been ordered, if it be not ordered accordingly, shall be amerced. Ibid.

9. 9. If the testator, in the case of a testamentary guardian, shall omit to direct the sum of money, or the fund, to be applied to the maintenance and education of his infant; and if the disbursements of such or any other guardian, being suitable to the state and circumstances of the ward, shall exceed the profits of his or her estate in any year, the balance, with the allowance of the said court, may be debited in the account of a succeeding year, and paid out of the personal estate of the infant; and so much and such part thereof may, with the approbation of the court, be sold at public auction, to the highest bidder, after reasonable notice of the time and place of such sale has been given, as shall be necessary for that purpose. And the balance appearing on the contrary side may be put out to interest for the benefit of the ward, upon such security as the court shall direct and approve; or the guardian, if it remain in his hands, shall account for the interest, to be computed from the time his account was, or ought to have been, passed. Dec. 1656, act 2, 1 Stat. Larg. 416; March 1661-2, act 66, 2 Stat. Larg. 92; and Ibid.

10. § 10. The court, at any time, when it shall know or have cause to suspect that the security of the guardian is failing, may require and compel such guardian to give supplemental security, or, if he refuse or neglect so to do, may displace him. Dec. 1656, act 2, 1 Stat. Larg. 416; March 1661-2, act 66, 2 Stat. Larg. 92; 1785, c. 86, 12 Stat. Larg. 196; 1792, c. 95, R. C. 11. § 11. If any security for a guardian by petition to the court before which he was bound, setting forth that he apprehends himself to be in danger of suffering thereby, shall pray that he may be relieved, the court, after(b) a summons to answer the petition shall have been served upon the guardian, or a copy of such summons shall have been left at the place of his usual abode, shall order him to give counter-security, or to deliver the ward's estate into the hands of the surety, or some other person; in either of which cases it shall take sufficient security; or it may make such other order for the relief of the petitioner, as to it shall seem just. Oct. 1748, c. 4, 5 Stat. Larg. 453, and Ibid. 12. 12. The estate(2) of a guardian or curator, appointed under this act, not under a specific lien, shall, after the death of such guardian or curator, be liable for whatever may be due from him or her, on account of his or her guardianship, to his or her ward, before any other debt due from him or her. Ibid. Dec. 11, 1792, c. 33, § 10, 1 Stat. Larg. ed. Shep. 105; Dec. 12, (1794, R. C. c. 172,) 1 Stat. Larg. ed. Shep. 299, c. 14, § 5.

(a) Settlement of a guardian's account by the county court, is evidence, as the vouchers may be lost. Tabb v. Boyd, 4 Call, 453. (b) If on a rule granted on motion of a guardian's sureties for counter-security, the court, without the rule, or any summons to the guardian to answer, being served on him, and without any appearance by him,

revoke his appointment of guardian, such proceeding is not warranted by this act, and the revocation is void, at least as to persons dealing with the guardian as such, without notice thereof. The Bank of Virginia v. Craig, 6 Leigh, 399.

(2) See Black et al. v. Scott, ex'r of Lesslic et al. 2 Brock. R. 325.