Jurisdiction of Court under ments Act, 1855. apparently for the sake of the fortune; and the Court has generally refused to give him any interest in the property;' but where he is of equal rank and fortune with the wife, and makes an equivalent provision for her out of his own property, it does not seem that the same rule would be enforced; and where the husband had no property, and the contempt was not a flagrant one, the costs of the settlement (including the husband's) were ordered to be paid out of the funds; and even in a very flagrant case, in which the husband had been convicted of a conspiracy, he was allowed to receive a sum of £2000 out of his wife's fortune, in order to pay debts which he alleged he had contracted for her. હૈ The matter may be thus shortly put: The Court may vindicate its jurisdiction by committing the contemnor to prison; but when he is a person of equal rank and fortune with his wife, and is willing to make an equivalent provision on his side, the Court will give him an interest in his wife's fortune, if necessary, which it would refuse to a needy adventurer. 4 In a The Court has claimed the power under the Infants' Settlements Infants' Settle- Act, 1855, to direct a settlement of a male or female infant's property, being a ward of Court, even after the marriage has taken place. But whether this claim is rightly founded is a question which calls for a clear decision from the highest tribunal." late case the Court held it had no jurisdiction under this Act to compel an infant ward of Court to make a settlement of his own property because he had been guilty of contempt in marrying without leave." Taking wards out of the urisdiction. The Court of Chancery will not, as a rule, allow its wards to be removed out of the jurisdiction; if they could be so removed without its leave, it would have no guarantee that they would be brought up and treated in a manner of which it would approve; and they might contract marriages which it never would have sanctioned; in fact, it would lose all control over them both in the present and in the future. The Court will enforce its orders not only against strangers, but against guardians, and even against the father himself." It will order its wards to be brought back who have been taken abroad without its permission." 10 1 Ball v. Coutts, 1 V. & B. 292, 303. 2 Anon. 4 Russ. 473. 3 Pearce v. Crutchfield, 16 Ves. 48. Dav. Prec. vol. iii. Pt. I. 659. 4 18 & 19 Vict. c. 43. 5 Re Sampson and Wall, 25 Ch. D. 482; Re Phillips (an Infant) 34 Ch. D. 469. 6 See Seaton v. Seaton, 13 App. Cas. 61; Re Leigh, Leigh v. Leigh, 40 Ch. D. 290. 7 Re Leigh, Leigh v. Leigh (ubi sup.). 8 Newport v. Moore, 1 Dick. 166. 9 Re Fynn, 2 De G. & S. 457; Re Plomley, Vidler v. Collyer, 47 L. T. 283. 10 Foster v. Denny, 2 Ch. Cas. 237. out leave To remove an infant out of the jurisdiction is a serious contempt, Removal withwhich the Court will punish severely by commitment to prison; serious conand privilege of Parliament will be no protection against such com- tempt. mittal.1 5 granted. cation and its benefit. Before an infant ward can be properly removed out of When leave the jurisdiction, the leave of the Court must be first obtained. The Court was wont not to grant it very readily, but did accede from time to time to the request to remove them." Its practice was to refuse an order permitting its infant wards to be removed out of the jurisdiction, with a view to their residing permanently abroad, except in a case of imperative necessity, as where it is clearly proved that a constant residence in a warmer climate is absolutely essential to their health; and such an order, if made, Court must be informed of; comprised a scheme for the education of the infants, as well as a ward's proprovision for informing the Court from time to time of their gress in eduprogress and condition, and an undertaking to bring them within whereabouts. the jurisdiction when required. But in modern times the Court Infant's is less strict in the exercise of this jurisdiction, and leave is now given to take an infant ward out of the jurisdiction without a case of necessity being shown; but the Court must be satisfied that the removal is for the infant's benefit, and that future orders will be obeyed. Security in this respect is generally attained by appointing a guardian to act jointly in this country with the parent. Where it is intended that the wards should go abroad for a temporary residence, for the purposes of health and recreation, or for education, leave is more readily granted; but the Court will insist upon security being given for the due return of the wards, and especially that they should not be married without its leave. The Court will not allow its wards without leave to enter the army, or navy, thereby becoming liable to be removed out of the jurisdiction; though where it is for their benefit that they should remain in the service, leave will be obtained." If a father is obliged to leave the jurisdiction, and his children are wards of Court, he will in general be permitted to take them with him; but in such a case he will be compelled to keep the Court informed from time to time by proper vouchers of the plan of the education of the wards, and of their residence ; so, too, a sick mother who travels abroad to recruit her health, will be permitted to take her infant child (a ward of Court) with her." And where 6 8 10 1 Wellesley v. Duke of Beaufort, 2 Russ. & Myl. 639. 2 See Mountstuart v. Mountstuart, 6 Ves. 363, and De Manneville v. De Manneville, 10 Ves. 52. 3 Jackson v. Hankey, cited as Anon. Jac. 265 n. Campbell v. Mackay, 2 Myl. & Cr. 31. 6 Re Callaghan, Elliott v. Lambert, 28 Ch. D. 186. 5 Ibid. 7 Jeffreys v. Wanteswarstwarth, Barn. Ch. 141; Re Medley, 6 Ir. R. Eq. 339. 8 Rochford v. Hackman, Kay, 308. 10 Jackson v. Hankey (ubi sup.). Harrison v. Goodall, Kay, 310n. 11 Lyon v. Watson, cited Chamb. Inf. 32. to reside the intention is not to keep the wards permanently abroad, or, in the case of females, where they have arrived at years of discretion, leave of the Court to go abroad will be granted, for travelling purposes, or on account of ill health, or to visit relations, or a Wards allowed sick parent. Wards, too, have been allowed to reside abroad; thus, two sisters, wards, arrived at years of discretion, were allowed to live with their aunts (their only relations), who resided abroad ;* a female ward was allowed to join her stepfather in India, the Court being satisfied that she would be properly looked after on the voyage, and on her arrival in India; and a girl of eighteen was allowed to reside with her brother abroad, her guardian consenting." abroad, if for their benefit. A case for removal must be made out. infant made But since, under ordinary circumstances, a ward of Court cannot be removed out of the jurisdiction, those who seek its removal must make out a case for that purpose. But where an Except where infant is made a ward of Court solely for the purpose of preventward of Court ing his removal from this country, the obligation is shifted, and the onus of showing that it is not for his benefit to remain at home lies upon the party seeking to restrain his removal. Leave may now be given to take a ward out of the jurisdiction without a case of necessity being shown, if the Court is satisfied that the removal would be for the infant's benefit, and there is sufficient security that future orders will be obeyed." purposely to prevent his removal. Disclosure of residence of ward. It is not only a contempt to take away, or attempt to take away, a ward out of the jurisdiction, but also to conceal from the Court the place of residence of the ward, whether it be within or outside of the jurisdiction; and all parties who either know, or are supposed to know, of its place of residence, can be summarily ordered to give such information as is within their knowledge. This jurisdiction of the Court is not based upon the law or theory of contempt of Court, for the parties ordered to supply the information may be quite innocent of any contempt, constructive or actual, but on the power of the Court of Chancery as the protector and upholder of the interests of infants, exercising the delegated powers of the crown as parens patriæ.' It is not absolutely necessary that the infant should be a ward to give the Court jurisdiction to insist upon those who are aware of its place of concealment affording the requisite information." There is no 1 Spencer v. Earl of Chesterfield, Amb. 146. 2 Wyndham v. Lord Ennismore, I Keen, 467. 3 Ex parte M Key, 1 B. & B. 405. 10 Biggs v. Terry, 1 Myl. & Cr. 675. 5 Jeffreys v. Wanteswarstwarth, Barn. Ch. 114; see also Dawson v. Jay, 23 L. T. 6 Campbell v. Campbell, cited Chamb. Inf. 30. O. S. 239. 7 Cloystoun v. Walcott. 9 Jur. 649. 8 Per Jessel, M.R., in Re Plomley, Vidler v. Collyer, 47 L. T. 283. 9 Re Callaghan, Elliott v. Lambert, 28 Ch. D. 185. 10 Rosenberg v. Lindo, 48 L. T. 478. 11 Re Spence, 16 L. J. Ch 309. 3 doubt an expression of opinion by Lord Cottenham in the case of Re Spence,' to the effect that the Court cannot compel parties who have not the infants in their custody to disclose facts of which they are the mere witnesses; but, as was pointed out by Chitty, J., in Rosenberg v. Lindo,' the observation was not material to the decision of that case. The contrary practice has been clearly established, and it is now settled that no person whatsoever is entitled to conceal the residence of a ward, or do anything which will prevent the Court from having access to its wards, and putting them under proper protection. Thus, a solicitor has been held bound to give to the Court any information which may lead to the discovery of the residence of a ward of Court whose residence is being concealed from the Court, although such information may have been communicated to him by his client in the course of his professional employment, and was ordered to produce the envelopes of letters which he had received from her as her solicitor, with the object of discovering her residence from the postmarks. So, too, a Roman Catholic bishop and the superior of a Roman Catholic convent were in one case ordered summarily to attend before the Court on a prima facie case for supposing that they were able to give information as to the place of residence of a ward of Court who was not in the custody of her parents.5 1 Ebi sup. 2 Ubi sup 3 Ramsbotham v. Senior, L. R. 8 Eq. 575. Ibid.; Burton v. Earl of Darnley, L. R. 8 Eq. 576 n. 5 Rosenberg v. Lindo (ubi sup.). As regards the person. Habeas corpus for illegal detention. THIS chapter will be divided into two portions: First, the remedies possessed by infants in respect of wrongs done to their persons; secondly, remedies in respect of wrongs done to their property. 1. As Regards the Person.-If an infant is detained in illegal custody, he is just as much entitled to be liberated from that illegal custody or restraint as if he were an adult; he is, thereThe father or mother,1 fore, entitled to a writ of habeas corpus. 2 or legal guardian, is prima facie entitled to the writ; but by 1 See ante, Part II. Parent and Child, chap. ii. pp. 496 et seq. 3 See Re Brown, 13 Q. B. D. 614; Reg. v Gyngall, [1893] 2 Q. B. 232; 54 & 55 Vict. c. 3. |