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Aliment.—The father's liability for aliment appears to have generally affected the question of custody. In extreme youth, the father is compelled to aliment the child, while the mother is entitled to its custody; but a disposition has been shown in cases where aliment is compulsorily exacted from the father, to let him have the alternative of taking the child from the mother's custody at an earlier age than that at which the proceeding is in other circumstances sanctioned. Thus, a tradesman was found entitled to take his son home and teach him his trade at the age of eight, instead of supplying aliment. It is said that whichever parent can afford to do so, must aliment the child, and that if both are able to do so, they are equally liable.2 It does not appear, however, that the woman can ever be called on to supply part of the wages of her labour where the father is alive and well, though but in the condition of a labouring man, and the father is almost invariably the party bound. It is held that on the father's death, his heir is liable. The amount of aliment is entirely arbitrary, and dependent on the rank and circumstances of the parties, the lowest being £5 a-year.3 The child must be alimented even after it has grown up, if infirmity prevent it from supporting itself.4 Where the father bound himself to aliment till the age of twelve, the mother relieving him of all claim thereafter, the stipulation was held not to bar the child from claiming against the father after he had reached that age. The provisions of the Poor-law Act above stated (p. 34), apply to natural as well as to legitimate children.
When the paternity is denied, the mother is entitled to give her oath in supplement, on circumstances being proved, which do not merely found a suspicion but give ground for a reasonable belief (though it be not fully proved that the defender is the father.
GUARDIAN AND WARD.
Sect. 1.— Tutors. The guardians of minors during the period of pupillarity (which lasts till the age of twelve in females, and of fourteen in males), are termed Tutors. During that period the minor is held incapable of and not responsible for the undertaking of any obligation, the sole disposal of his property being vested in his tutors. 2
Tutor Testamentary.—The power of naming Tutors with the full privileges of the office in testamentary deeds is solely in the father,—the mother, grandfather, and other relatives being only entitled to nominate individuals for the management of any special estate left by them to the pupil.3 A Tutor named by the father is termed a Tutor Nominate or Testamentary.4
Tutor at Law.-In the absence of a Tutor Testamentary from omission to appoint, non-acceptance, resignation, or death, the custody of the minor falls to a Tutor at law, or Tutor Legitim, who is the nearest Agnate or male relation on the father's side of the age of twenty-five. When there are more than one of the same degree, the person who is nearest the succession is preferred. The agnate must enter by a brieve from chancery, on which a jury have to make inquest as to his relationship and qualifications. The tutor at law is entitled to the disposal of the pupil's person, and may fix his place of residence, direct his education, &c.7 The mother. however, is entitled in all cases of tutory where she is not expressly excepted, to the actual custody of her child, at least to the age of seven, unless she marry again; and in the case of a tutor at law, the nearest Cognate or relation by the mother's side is preferred for the custody of the child.8
Tutors Dative. Failing Tutors Nominate and Tutors at Law, Tutors Dative are appointed in exchequer, the next of kin having been cited, or the two nearest giving their consent.9
A Tutor Testamentary may enter at once on his duties without finding caution, or giving oath of faithful administration, which are incumbent on the other two classes. All classes of tutors must make up Inventories, under the responsibility of being each individually liable for all omissions or defects of management, either by himself or his colleagues, and of not being remunerated for lawsuits carried on for the pupil. The next of kin on both sides are called to the making up of the inventory, unless they be beyond the jurisdiction of the court, when dispensation may be given. Three copies of the inventory are lodged, one for each of the next of kin on either side, and one to be recorded. Where the tutor is himself the nearest of kin on either side, the next to him must be cited. Married women cannot be tutors, as they are themselves under the guardianship of their husbands; and when an unmarried woman is appointed to the office, she vacates it on being married. Where the affairs of a pupil who has no tutors are in a state which calls for immediate superintendence, the court will appoint a Factor or interim Tutor.7
Sect. 2.-Curators. A minor who has passed the period of pupillarity, is no longer subject by the law to personal restraint, and is presumed capable of undertaking a legal obligation. At the same time, such persons are presumed to be liable to mismanage their affairs, and to be the ready subjects of fraud; and the administration of their property is generally committed to curators. If a father nominates a Curator to his minor child, such nomination supersedes any other general choice, though a third party leaving property to the minor is entitled to put it under what trusteeship he may think fit.8 If the father has not appointed curators, the minor may, by a judicial process, in which two of the nearest of kin on either side are cited, have Curators appointed to himself.9 The minor has no second choice, and a curator once judicially appointed is entitled to hold his office till his ward's majority, unless he be superseded by the court.10 The minor cannot restrict the responsibility of the curators so appointed, but the father may do so with regard to those named by
himself. In the case of a natural child, where there were no legal next of kin to be cited, the court on one occasion appointed curators, dispensing with the citation, and a natural child to whom his father leaving him property had appointed guardians, was found entitled to apply for the appointment of curators.3
Curators must find caution and prepare inventories in the same manner as tutors. (See preceding Section.) A curator cannot, as a tutor may, direct the disposal of the minor's person. He does not supersede the minor in the management of his affairs, but merely assists him. An obligation incurred by the curator alone in the minor's name is therefore null, and every valid obligation of a minor who has curators must be undertaken by the minor, and consented to by the curators.
Sect. 3.- Powers and Responsibility of Guardians.
Tutors and curators have no claim to be remunerated for the performance of their duties. Where there are several guardians, the number necessary to form a quorum is generally fixed by the terms of the appointment, and one is occasionally named as indispensable, or “sine quo non," without whose presence no act is valid. The quorum can never be less than a majority. “Tutors and curators have power to sue for and levy the minor's rents, interest, and principal sums, if his necessities call for it; to grant acquittances to the debtors, and to name factors or stewards with reasonable salaries."8 These acts must, in the case of curators, of course, be with the concurrence of the minor. They may remove tenants and grant leases. Those granted by tutors cannot, in the ordinary case, extend beyond their period of office ;9 the court will, however, give authority where it is necessary, to lengthen the period of the lease, though not where it is merely expedient to do so.10 It is held, however, that a minor above pupillarity may, with the consent of his curators, grant a lease beyond the period of minority.11
Guardians “ have power to sell the minor's moveables. without which his personal estate would frequently be lost
to him.” A minor, with consent of his curators, may dispose of his landed property, though the person who acquires it is liable to restoration if the bargain prove prejudicial.? (See below, Sect 4.) It was formerly understood that the court would interfere to sanction such transactions, but in a case in 1817 they refused to interpose, leaving the matter to the discretion of the curators. Tutors cannot sell the heritable property of their pupil without consent of the court, · which is only adhibited on a case of necessity being made out. Tutors cannot by any act alter the succession to the pupil's property, and so, if they take heritable securities for the money intrusted to them, the property remains personal as to succession. “Neither tutors nor curators can, contrary to the nature of their trust, authorize the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's estate. And where a tutor or curator makes such acquisition in his own name for a less sum than the right is entitled to draw, the benefit thereof accrues to the minor, though the right should have been bought with the tutor's own money."7 Tutors and curators must educate the minor according to his property and position in society, preserve his estate from dilapidation, pay debts, and put the free returns out to interest. It has been found that a tutor is bound to accumulate rents every three years into a capital bearing interest.
Tutors or curators having once accepted a trust cannot resign it.10 Curatory ceases with the marriage of a female ward.11 Both tutory and curatory fall by any supervening incapacity, whether natural or legal, which may disqualify the tutor or curator from discharging the office. 12 The Court of Session will, on complaint supported by cause shown, remove tutors and curators as “suspect.” 13 Guardians, at the termination of their office, can be compelled by action to account for all receipts and expenditures, and to restore all documents and property ;14 and they have, on the other hand, a counter action on the expiry of their office, for reimbursement of their expenses, and discharge from their responsibility.15 Persons who without any formal authority perform the duties of tutors and curators to minors,-called Pro-tutors and Pro-curators, are liable in the same responsibility as tutors and curators.16
' E. Pr. i. 7, 10.–2 E. i. 7, 17.–3 Ibid.—4 Wallace v. Wallace, 8th March 1817. See Montgomery, 29th Jan. 1839.-5 E. i. 7, 17. Finlay. Bons o. Finlaysons, 22d December 1810, B. C. i. 132.— Iv. Er. 175, n. 213. Graham v. Hopeton, 6th March 1798, M. 5599.47 E. Pr. i. 7, 11.—8 E. i. 7, 25.–9 Hamilton 'v. Marshall, 25th February 1813.-10 E. i. 7, 29." Ibid. 12 Ibid.-13 Ibid. 14 Ibid. 31._15 Ibid.°7, 32. _16 Ibid. 28.'