pending in this court. Had they acted under a claim of title other than that of the defendant, their conduct, so far as regards this proceeding, must have been considered as entirely justified. Their ignorance of the act committed by them having been prohibited by an injunction of this court, and of its having any injurious bearing upon the matter in litigation in this suit, may be heard in mitigation of the wrong; but it cannot be deemed a justification of their conduct. A pragmatic trespasser subjects himself to all the consequences of his acts, as well in an action at common law, as on an attachment in this court. (m) I cannot make the defendant Gilbert Murdock pay the costs and take down the fence, because he is entirely innocent; and it would be highly unjust to throw the costs and the trouble of doing so upon the plaintiff William Brewer, because he is the party grieved. I shall, therefore, cast the whole upon these two trespassers.

Whereupon, it is Ordered, that Gilbert Murdock be and he is hereby discharged with his costs. And it is further Ordered, that the said William Murdock and Zachariah Johnson be, and they are hereby commanded and required, without delay, to take down and remove the fence erected by them, as stated in the proceedings, and to pay all the costs of this proceeding, to be taxed by the register, and to stand committed until the said costs are fully paid,

CORRIE'S CASE.

The jurisdiction of the Chancellor as to infants and lunatics.-In all cases where the jurisdiction of the ordinary tribunals falls short, the Chancellor may, on petition without suit, appoint a guardian to an infant; and provide for his education and maintenance, and the management of his estate.-But under a habeas corpus, the judicial authority extends no further than to the discharge of a citizen from illegal restraint. The several kinds of personal incapacity to contract.-The state is bound to take care of all its own citizens; particularly infants, lunatics and paupers.Every one is permitted to remove his property out of the state at pleasure.-The property of a debtor or deceased person, may be detained in the country where it is found, for the benefit of his creditors there residing, or of the state, in opposition to any foreign administration or bankrupt, or insolvent laws.-Land is governed by the law of the country in which it is situated.-The succession to personal property, on intestacy, is regulated by the law of the deceased owner's last domicil. The contract of marriage, if valid where made, is, with few exceptions, valid every where; but the right to personal property, as a consequence thereof, is regulated by the domicil of husband and wife.-The appointment by

(m) Childrens v. Saxby, 1 Vern. 207.

the Chancellor of a guardian, to a citizen infant, resident here, should be recognized every where, so as to enable such guardian to collect and bring his ward's property within the jurisdiction of this state.

James Corrie, by his petition, stated that his brother John Corrie, late of the Island of Trinidad, had died there, leaving a considerable real and personal estate, which, by his last will, he had given to the children of his six brothers and sisters; that the petitioner had eight infant children, who were consequently entitled to onesixth part of the estate so devised and bequeathed; and that by the laws of Trinidad, the estate so given to his infant children, could only be recovered by their guardian. Whereupon he prayed, that he might be appointed their guardian for that purpose.

31st May, 1830.-BLAND, Chancellor.-It is clear, that in all ordinary cases, arising wholly within the jurisdiction of Maryland, this court, when it may be proper for it to act at all, may make an appointment of a guardian to an infant upon petition only, without any bill filed or suit in court; (a) and therefore, if this be a case in which it may act with propriety, there can be no doubt,

(a) Eyre v. Shaftsbury, 2 P. Will. 118, 120; Ex parte Birchell, 3 Atk. 813; Ex parte Salter, 2 Dick. 769, S. C.; 3 Bro. C. C. 500; Ex parte Wheeler, 16 Ves. 266. In the matter of Woolscombe, 1 Mad. Rep. 213; O'Keeffe v. Casey, 1 Scho, and Lefr. 106; Villareal v. Mellish, 2 Swan. 536, note; Pratt v, Pratt, ante 429.

Ex parte Ross.-Oliver Bond Ross, by his father and next friend, James Ross, filed his petition here, in which he stated, that his father had purchased for him ten shares of stock in the Union Bank of Maryland, for the paying of the instalments, drawing the dividends, &c. on which, it was necessary he should have a guardian appointed; and therefore prayed, that his father might be appointed his guardian, &c.

16th April, 1805.-HANSON, Chancellor.-The Chancellor has considered the petition of Oliver Bond Ross, and is by no means satisfied that it is necessary, or that it will be deemed proper for him to exercise the power of appointing a guardian in the present case. From the 101st act of 1798, ch. 12, it clearly appears, the idea of the legislature, that a father is by nature, entitled to act as guardian of the property as well as the person of his child, unless, &c. &c. The Chancellor makes these remarks, in order that his decision may not be considered hereafter, as a precedent, respecting the right, or power of a natural guardian. And as it is impossible, that his appointment, concurring with the order or institution of nature, can be injurious; it is Decreed, that James Ross, of Baltimore, father of the petitioner, be, and he is hereby constituted guardian of the said Oliver Bond Ross, for the purpose only, of superintending and managing the shares and interest of the said Oliver B. Ross, in the Union Bank of Maryland; and of paying the said bank or receiving from it, money for the said Oliver; and of acting in the premises, to all intents and purposes, as the said Oliver, if of full age, might act for himself. And it is hereby declared the intent of this decree, to give to the said James Ross, authority to act as guardian in no other respect whatever.

that it may, upon this petition alone, make such an appointment as is called for, without a suit. But it would be idle to act at all, if it should clearly appear, that the action of the Chancellor could be of no avail; and therefore, it will be proper to consider the nature of the Chancellor's authority in relation to the guardianship of infants; and the principles of international courtesy upon which an appointment of a guardian to an infant made in one nation, may be recognized in all others.

This petition asks for the appointment of a guardian to eight infants, of different ages and sexes; and consequently, it may be well, before we proceed with the principal matter, to make some observations as to the nature of that incapacity, for which it is here proposed to provide by the appointment of a guardian.

There are two kinds of personal incapacity; the one natural, the other artificial; or first, that which arises from bodily or mental defect; and secondly, that which is declared by positive law. Of the first kind, is that of lunacy. A lunatic is every where held to be incompetent to contract in any way whatever, by reason of his mental defect; (b) and because of incurable impotence, arising from injury, or malconformation, a person is every where held to be incompetent to contract marriage; which requires a bodily as well as a mental ability so to contract. (c) Of the second kind of personal incapacity, is that of a married woman; whose incapacity, (regarding the mere bond by which the parties are bound together as husband and wife, as that alone which is recognized by the law

Some doubts having arisen, and objections having been made as to the extent of the authority of the guardian under this order, the matter was again brought before the court.

26th June, 1805.-HANSON, Chancellor.-The Chancellor having heretofore passed an order, authorizing James Ross, the father of Oliver Bond Ross, to superintend and manage certain shares and interest of the said Oliver B. Ross, in the Union Bank of Maryland, and of paying the said bank, or receiving from it money for the said Oliver B. Ross; and of acting in the premises, to all intents and purposes, as the said Oliver, if of full age, might act for himself; and doubts being, as is stated, entertained as to the extent of the authority of the said James Ross; it is hereby adjudged and Ordered, that the said James Ross be, and he is hereby authorized to sell and transfer the said shares, or any of them, in the same manner, as if the said shares belonged to himself; and in all respects, relative to the said shares and interest, to act for the said Oliver Bond Ross, as the said Oliver, if of full age, might act for himself. (Such guardians now required to give security, &c. 1816, ch. 203, s. 1.)

(b) Ex parte Lewis, 1 Ves. 298; Ex parte Annandale, Amb. 80; Ex parte Gillam, 2 Ves. jun., 587.-(c) Sabell's case, Dyer, 179; Bury's case, 5 Co., 99; Guest v. Shipley, 4 Eccles. Rep. 548.

of nations as being every where alike obligatory,) is in each state of positive institution; and varies in form and degree with the various nations by whose laws it is regulated; or within which country, she, with her husband, may, for the time being, have their domicil. (d) The incapacity of an infant, is, in some respects, both natural and artificial. For some time after birth, the incapacity of an infant, both bodily and mental, being natural and alike in all countries, must accordingly be every where so considered. Yet after that period of mere infantine imbecility, there is a space of non-age established by law, which is different in different countries.

But as the exact point of full age has been every where regulated, chiefly with a view to the disposition of property, what is to be deemed full age, must therefore be determined, in each state, according to that right of disposition. Claims to land and immoveable property are always regulated by the law of the place where it is situated; and hence, although these female infants would here, on their attaining the age of eighteen, have a right to dispose by will, of their real estate here; (e) yet, they may not be allowed to make any such disposition of their land in Trinidad, until they attain the age of twenty-one years. And as the disposition of personal property is, with some qualifications, allowed by all nations to be governed by the law of the owner's domicil, it follows, that full age, as established by that law, must give a capacity to dispose of such property, wherever it may be found. Except however, that every person, whether temporarily or permanently living in a country, must, as to all his personal capacities, during his residence there, be governed by the law of the place; as, in general the personal capacity is regulated by the law of the country. (ƒ) And consequently, in the case under consideration, no great difficulty can arise in fixing the exact termination of the infancy of these children, or the duration of the guardianship, that may be here assumed over them.

Among the important duties which a state owes to itself, is wrapped up, that obligation by which it is bound to take care of all

(d) Feaubert v. Trust, Prec. Cha. 207; Doe v. Vardill, 11 Com. Law Rep. 266.-(e) 1798, ch. 101, sub ch. 1, s. 3.—(ƒ) Ex purte Gillam, 2 Ves. jun., 587. In the matter of Houston, 1 Russ, 312; Male v. Roberts, 3 Esp. N. P. Rep. 163; Dalrymple v. Dalrymple, 4 Ecclesi. Rep. 485; Herbert v. Herbert, 4 Eclesi. Rep. 535; Ruding v. Smith, 4 Ecclesi. Rep. 551; Harford v. Morris, 4 Ecclesi. Rep. 575; Middleton v. Janverin, 4 Ecclesi. Rep. 582; Doe v. Vardell, 11 Com. Law Rep. 266.

its own citizens. Upon which obligation each member of the community, as a component part of the whole, has a clear and undeniable claim upon the state for its assistance, in all cases, where, either because of the over-ruling circumstances in which he may be placed, or because of his own peculiar imbecility, he is incapable of sustaining himself. Hence it is, that, according to all law, a state is bound to take care of and protect its own infants, lunaties, and paupers. (g) And such has always been the practice, and the admitted obligation and law of Maryland.

In England, many doubts and much contrariety of opinion have been expressed as to the sources from which the Chancellor derives the power he exercises in cases of infancy and lunacy. It is admitted, on all hands, that the state is under an obligation to put forth its power for the protection of such persons in some way, the only difference of opinion there, being as to the extent to which that power, looking to the manner in which it has been delegated to the Chancellor, shall be exercised by him for the benefit of those who may be found in that imbecile condition. (h) The Chancellor, or any court of common law may, by means of a habeas corpus, relieve an infant or lunatic as well as an adult of sound mind from any illegal restraint, or set him free, without making any provision whatever for him, under that form of proceeding. But the general care which he has a right to claim, as a due from the state, can only be obtained from the Chancellor upon the ground of that parental authority with which he has been clothed as the representative of the state for the benefit of all such persons. (i)

Here it has always been admitted, apparently without any refe rence to the sources from which the Chancellor of England had derived his authority, that the Chancellor of Maryland was invested with all the powers in relation to infants and lunatics, with which the Chancellor of England had been clothed; as founded on an obvious necessity, that the law should place somewhere the care of individuals who could not take care of themselves, particularly in cases where it was clear, that some care should be thrown around them. And consequently, the broad principle may be safely as

(g) Eyrie v. Shaftsbury, 2 P. Will. 118, 123; Vattel, b. 1, ch. 2; Montesq. Sp. Law, b. 23, ch. 29.-(h) Co. Litt. 89, a. note 16; 2 Fonb. 226; 1 Blac. Com. 302, 304, 460; De Manneville v. De Manneville, 10 Ves. 63.—(i) De Manneville v. De Manneville, 10 Ves. 58; Lyons v. Blenkin, 4 Cond. Cha. Rep. 115, and notes; The King v. Hopkins, 7 East. 579; The Case of the Hottentot Venus, 13 East. 195; Ex parte Skinner, 17 Com. Law Rep. 122.