The father of the plaintiff appearing to be fufficiently com- Where a father is fufficiently petent, his Lordfhip would give no direction with regard to competent, the her maintenance, for he faid, that whether an infant fhould court will give have an allowance of maintenance during the life of the fa- no direction with ther, depends always upon the particular circumftances of the fant's mainte cafe.

Vide title Portions, under the divifion, At what Time they shall be

A

raifed, &c.

Vide title Cufom of London.

С А Р. LXIX.

Marriare.

(A) Where it is clandeftine.

December the 20th, 1737.

Hill v. Turner.

regard to an in

nance.

See ftat. 26 G.2.

C. 33. 21 G. 3. c. 53.

2 Tr. Atk. 668. pl. 675.

2 Bürr. 898, 899.

Bill had been brought against an executor for an account Cafe 246. of a teftator's eftate, and alfo prayed that there might be a guardian affigned, and maintenance for an infant; the mother was appointed guardian, and 100l. per ann. allowed

for his maintenance.

The infant being made drunk at an alehouse near the Fleet prison, was drawn in to marry a woman in mean circumftances and of bad character; and upon an application to this court, the wife was committed to the Fleet. The infant's mother, as he had no eftate fufficient to maintain a wife till of age, has put him out an apprentice to a merchant in Hole land, upon which the wife immediately inftituted a fuit in the ecclefiaftical court, for alimony and for reftitution of conjugal rights; a fentence there that the husband fhould cohabit, and if not, that he should pay alimony; and an order made likewife by that court, upon the guardian, to pay the fum of 10l. to the wife towards alimony, and afterwards a monition to the guardian to pay a further fum as an increase of alimony, and a fentence of excommunication pronounced against her for not obeying the monition, and also against the infant, the husband, for not receiving his wife.

Mary Stewart, the mother of the plaintiff, petitioned the court that a prohibition might be granted to ftay the proceedings upon the decree, and excommunication against her in the fpiritual court.

Lord Chancellor I have no doubt at all as to the propriety of applying to this court, but the misfortune is, the want of of a fufficient law to reftrain fuch clandeftine marriages, which are not only introductive of great mifchiefs, but put courts of

L12

judi

court cannot be

fummary way,

judicature under great difficulties; but notwithstanding this defect in the law, it is incumbent on this court to prevent, as far as they can, perfons from profiting themselves by fuch infamous methods.

Notwithstanding the wife may have been discharged from the order of commitment, yet, till fhe has paid the colts of the court for the contempt, fhe is ftill under the authority and jurifdiction of this court, though fhe goes at large.

The fentence of I cannot reverse the fentence which has been pronounced the ecclefiaftical in the ecclefiaftical court, that can be only done by appeal reverfed in a to the proper judges, for it cannot be reverfed in a fummary way, nor can I, upon a petition, grant a prohibition to the but by appeal ecclefiaftical court, for that can only be upon fhewing they judges; nor can have no jurifdiction, which must be done by motion, and a a prohibition to proper fuggeftion: Befides, there is no colour to say the ecthat court be clefiaftical court want jurifdiction, for the authority they exgranted upon a petition; by mo. ercife in matrimonial cafes is the general law of the land, and tion and a proper extends to perfons not only of full age, but under, profuggeftion it vided they are old enough to contract matrimony.

may.

An injunction does not deny, but admits the jurifdiction of the court of common law; and the ground

But the question will be, Whether this is not a particular cafe, and fo circumftanced as to give me an authority to retrain the perfon, without meddling with the jurifdiction of the ecclefiaftical court? For an injunction, when awarded, does not deny, but admits the jurifdiction of the court of on which it if common law; and the ground upon which it iffues is, that fues is, that they they are making ufe of their jurifdiction contrary to equity are making ufe and confcience. The fame with regard to the ecclefiaftical of their jurif, court in cafe of a legacy left in truft, where the truffee is futo equity. So ing for payment into his own hands, the court will restrain where a truffee is him, out of regard to the intereft of ceftuique truft; and will do it likewife in the cafe of a portion devised to a daughter clefiaftical court for payment of upon marriage, where the hufband is fuing for it before he ceftuique truft's has made an adequate fettlement. legacy into his

diction contrary

fuing in the ec

own hands; or

in the cafe of a portion, where the husband is fuing for it there, before a fettlement made ; this court will, upon the fame grounds, reftrain them from proceeding.

The power of

this court over

back to them

It is upon this footing I fhall proceed, for if I was not to reftrain the wife, all the care the court has exercifed with regard to the eftate and perfon of the infant, would be vain and ufelefs: It has been rightly faid, that this court will not only take care of the infant's maintenance and education, but that he does not marry likewife to his difparagement, and though there is no particular order to reftrain, yet the marriage is a contempt of the court.

This court hath the care and ordering of infants, and tho' infants refulted by act of parliament the court of wards had a particular power again, upon the over them and lunaticks, yet, in every other refpect, the law diffolution of the as to infants continued as before; and as the ftatute of the 12 Car. 2. c. 24, has diffolved the court of wards and liveries,

court of wards

and liveries, by the 12 Car. 2.

the

the power of this court over infants is refulted back to them again The law of England is favourable to infants, no decree fhall be had against them here, but what they may fhew caufe for, when they come of age; this court will make strangers accountable to infants, in cafe they take upon them to receive the profits of their eftates; this court can also afcertain the quantum of an infant's maintenance, and to whom it fhall be paid; and this is conclufive to all parties.

perion who has

The allegation of faculties is, a term in the ecclefiaftical court, Tho' this court in regard to the ability of an infant to allow alimony, and is cannot on petition prohibit according to the quality of the perfon, and the quantity of the the ecclefiaftical maintenance; it is this makes them judges of the application court, yet they of the maintenance, and incroaches upon the jurifdiction of will restrain a this court; and for whom have they now interpofed? for the married a ward benefit of a wife, who has in a fcandalous manner inveigled an of this court infant, and ftolen him away from this court; but though. I clandeftinely, from proceeding cannot upon a petition prohibit the ecclefiaftical court, yet I on an excommuwill restrain the wife from proceeding either upon the excom- nication, either munication pronounced against the infant, or upon the ex- fant, or his guarcommunication against the mother the guardian of the infant; dian. for as there is a certain fum allotted for his maintenance, the guardian is to be confidered as very little more than the hand of this court; for if the guardian applies it to other purposes, it is a mifapplication, and fhe would be liable to the cenfure of

the court.

ried with the

an increase of

Suppofe this woman had even married the infant in a fair Tho' a ward of way, and with the confent and approbation of friends, ftill the court is mar there ought to have been an application to this court for an in- confent of his crease of maintenance, and I have known fuch inftances, and friends, yet there it is highly improper to inftitute a fuit in the ecclefiaftical court must be an application here for for that purpose. His Lordship ordered, that Mary Hill who feduced the plain- maintenance. tiff the infant by ill practices to marry her, while he was under the care of this court, in contempt thereof, be reftrained from proceeding in the Spiritual court against the petitioner the guardian of the infant, for payment of alimony, and that the be also restrained from proceeding there against the infant himself, for reftitution of conjugal rights and alimony.

And on motion or other application to be made to the Spiritual court on the behalf of the infant, or his guardian, or either of them, to abfolve them or either of them, from the fentences of excommunication awarded against them or either of them; His Lordship ordered, that Mary Hill do confent thereto in the Spiritual court, to the end that fuch fentence or fentences may be effectually removed out of the way.

Vide title Conditions and Limitations, under the divifion, In whats
Cafes the Breach of a Condition will be relieved against.

Vide title Agreements, Articles, and Covenants.

Cafe 247. The plaintiff's fon was put apdefendant for

prentice to the

mitufed, and on

CA P. LXX.

Halter and Servant.

(A) What remedy they have againữ each other.

BY

November the 26th, 1739.

Argles v. Heafeman,

DY indenture of apprenticeship of the 28th of August 1732, the plaintiff's fon put himself apprentice to the defendant a Mercer for feven years, and he, in confideration of twenty pounds, covenanted to inftruct the plaintiff's fon in his trade, years, but quitted and the plaintiff agreed to pay the defendant 207. more, if his him on being fon lived to the 24th of June 1734, and gave the defendant a bond for it, on fuch contingency. After the 24th of June 1734, the plaintiff's fon quitted the defendant upon being mifufed and evil treated, in being compelled by the defendant to take care of his horses, and to do other fervile offices; and upon the defendant's proceeding at law against the plaintiff very of the bond. Upon the bond, he brings a bill for an injunction, and for the A court of delivery of the bond.

defendant's pro

ceeding at law on abond given by the plaintiff, he brings a bill for

an injunétion,

and for the deli

equity has no ju

rifdiction in matters of this nature, but belongs to juftices of peace, and therefore the plaintiff ordered to pay cots at law, and in this court.

Lord Chancellar: A very unneceffary fuit in this court, and if I should take upon me to determine it here, it would be a vast expence to the masters and apprentices, and would be assuming a jurifdiction which does not at all belong to me, but by the Eliz. cap. 4. ftatute of Eliz. is left intirely to juftices of the peace, as a matter most proper for their determination.

fec. 35.

coming into

Mifufer of an ap The only pretence for bringing it into equity, is the misuser, prentice is not a and why cannot this be as well determined at law, for if an foundation for action is brought by a mafter against the father of an apprenequity, for if an tice, for a breach of covenant in the fon's quitting his fervice, action is brought and it fhould appear there has been a misuser of the apprentice, I fhould certainly direct a jury, that this is no breach, for an apprentice may leave his mafter upon misuser.

by a mafter

against the father

of an apprentice,

for a breach of Covenant in

quitting his fer vice, if mifufer Appears, this is no bleach.

The only question is, Whether the mijufer is a difcharge of the apprentice, which is a mere matter of law, nor is there the least pretence for coming into this court.

But, with the confent of the defendant, his Lordship decreed, that the injunction already granted be made perpetual, and

that

that the bond be delivered up to the plaintiff to be cancelled, and at the fame time he ordered the plaintiff to pay the defendant his cofts at law, on the action upon the bond, and also his cofts in this court.

CA P. LXXI.

Defne Profits.

Vide title Occupant.

WH

CA P. LXXII.

Money.

February the 12th, 1738,

Anon'.

HERE money by an order of this court is paid into Cafe 248. the accountant general's hands, to be placed in the bank, till it can be laid out according to the directions of a decree, if you move for an application of this money, you must not only have a certificate that the money was paid into the bank, but that it is actually in the bank at the time of the motion made.