The English cases take the ground,
that even when the father is unfit to
be trusted with the care and education
of his children, the only remedy is
in chancery, and that a common law
court cannot interfere actively with his
rights, although it may deny him its
assistance to render them effectual ;
The King v. GreenhiU, 6 Nevile &
Manning, 244; In re Halcewill, 12 C.
B. 223. " The point," said Cresswell,
J., in In re Halcewill, " was expressly
determined in this court in Ex parte
Skinner, 9 J. B. Moore, 278, (E. C.
L. R. vol. 17.) So, in The King v.
GreenhiU, 6 N. & M. 244, (E. C. L.
R. vol. 36,) it was held by the Court
of Queen's Bench, that the father is
entitled to the custody of his children,
to the exclusion of their mother, al-
though they be within the age of nur-
ture ; and that, where a child is in the
custody of the mother, the court will
compel her to deliver it into the cus-
tody of the father, unless it appear to
the court that the child will be im-
properly restrained, or its morals con-
taminated by being placed in the
father's custody. ' The custody of
the father/ says Lord Denman, ' is
the proper legal custody. Where
there is danger to the infant, in in-
trusting it to the care of the father,
the court will not act upon the juris-
diction which they possess. There-
fore, if there were well-founded ap-
prehensions of the father's acting
with extreme harshness or cruelty, or
with gross profligacy or immoral con-
duct, so that the child would be in
danger of contamination, the court
would not order the child to be de-
livered to him.' And Littledale, J.,
said : ' Upon general principles of law,
the father is entitled to the custody
of the children. If they be of an
age to judge for themselves, they have
a right to determine where they will
go : but, if they be not, it is the
bounden duty of the court to put
them in that custody which the law
points out. Supposing the children
were in the custody of a third person,
and the question was, whether the
father or the mother should be intrust-
ed with them, there could be no doubt
that the court would order them to be
delivered to the custody of the father,
and any application of the mother
would not be attended to.' If these
children were of an age to judge for
themselves, we might compel their
production. But this application does
not embrace the only one of these chil-
dren who is of such age : it is not
suggested that she is in any improper
custody. As to the other children, I
think the cases abundantly show that
the primary right of custody of chil-
dren is in their father. I do not re-
EYRE V. COUNTESS OF SHAFTSBURY.
277
member any case where a court of com-
mon law has interfered in any way
with that right. Nor is there any
dictum that I am aware of which goes
to any such extent. The case of
illegitimate children obviously stands
upon a totally different footing."
And there are dicta which look the
same way in this country, and treat
the title of the father, when actually
in possession, as too sacred to be af-
fected by anything short of the full
and searching examination of a bill
in chancery; The State v. Stigal, 2
New Jersey, 286, 288 ; Armstrong v.
Stone, 9 Grattan, 102; In the matter
of Kottman, 2 Hill, S. C. 363 ; al-
though the point has not yet, as it
would seem, been expressly determin-
ed, and still remains open for future
investigation. But there can be no
doubt of the right of the court to de-
liver minors, who have attained an
age to judge for themselves, from an
improper restraint placed upon them
by the father, and leave them to choose
their own future residence ; In the
matter of Wolstonecraft, 4 Johnson,
Ch. 180; In the matter of Kottman;
The State v. Paine; TJie United
States v. Green.
In The People v. Mercein, 3 Hill,
399, the court were clearly of opinion,
that the father could not be debarred
from claiming the care and custody of
his children, by a covenant that they
should remain with, and be educated
by the mother, which had been in-
serted in an agreement, by which both
parties had stipulated to live separate-
ly and apart from each other, on the
ground that the paramount right of
the father is given to him for the be-
nefit of society, and not for his own,
and cannot be made the subject of a
contract of sale or alienation, as if it
were a mere right of property. And
the view thus taken is in some mea-
sure sustained by the cases of Farns-
worth v. Richardson, 35 Maine, 267;
and Richardson v. Richardson, 32
Id. 560 ; where, however the question
grew out of a contract with strangers,
and not between the wife and husband.
In The State v. Smith, 6 Greenleaf,
462, 464, a different view was taken,
and a covenant between a husband,
and a trustee for the wife, that the wife
should be entitled to withdraw from
her husband, if ill-treated, and take her
children with her, held to deprive him
of all right to the society or care of his
wife and offspring. There can, how-
ever, be little doubt, that the agree-
ment thus sanctioned, was void ab ini-
tio, as assuming to authorize and pro-
vide for a future separation, and hold-
ing out incentives to mutual discord,
which no court should have sanctioned
with its approbation ; The People v.
Merlin, 8 Paige, 47; 3 Hill, 399;
post, note to Stapilton v. Stapilton.
The principles which govern, where
a father is seeking to keep or obtain
the care and possession of his chil-
dren, also prevail when an application
is made, after his death, by the mo-
ther, except that while the rights
which she derives from the law, are
perhaps less clearly defined than his ;
The Commonwealth v. Murray, 4
Binney, 487 ; her claims to the cus-
tody of a child of tender years, are
sustained by the strongest considera-
tions of humanity and good feeling,
and should not be disregarded, unless
she is manifestly unfit for the perform-
ance of a task which is her privilege ;
The People v. Wilcox, 22 Barbour,
178 ; Armstrong v. Stone, 9 Grattan,
278
GPARDIANSHIP OF MINORS.
102. The welfare of the infant is,
however, the primary object in this,
as in all other cases, and will be para-
mount to the claims of either, or per-
haps both of its parents, at all events,
when the question arises on a habeas
corpus; The People v. Wilcox.
The rights of parents to the cus-
tody of their children, have been
made the subject of legislative enact-
ments in England, and in some of the
states in this country, which reduce
the somewhat undefined and arbitrary
power exercised by chancery in sus-
pending or superseding the parental
authority where its exercise will be
peculiarly injurious to the offspring,
to greater precision and certainty.
The acts were reviewed in the recent
case of Tarhington v. The State, 1
Carter, 171, where Smith, J., who
delivered the opinion of the court,
held the following language : " By
the common law, the father, in pre-
ference to the mother, was entitled to
the custody of the children of the
marriage ; and this paternal right was
always enforced in cases like the pre-
sent, except under the most peculiar
circumstances ; The King v. Grecnhill,
4 Ad. & El. 624. See also, 10 Ves.
58 ; Jae. 264, n. ; 2 Russ. 1 ; 2 Sim.
35. When it was clearly established
that the father was of immoral and
irreligious principles, and that thus
his children were likely to be corrupt-
ed, the aid of the courts to compel
their delivery to him has been refused,
but there is no pretence that such was
the fact in this case. An absolute
want of ability to provide for them,
would also, no doubt, have been good
cause for such refusal, but the proof
in this case falls short of establishing
such want of ability.
" Very recently, the common law,
by which the father, when the hus-
band and wife lived in a state of se-
paration, was entitled to the absolute
dominion over the children, to the ex-
clusion of the mother, has been ma-
terially modified by the statute, both
in England and in this country. By
stat. 2 & 3 Vic. c. 54, a mother,
(unless an adulteress,) may, by peti-
tion to the lord chancellor or master
of the rolls, obtain an order for access
to her infant children, but at such
times only, and subject to such regu-
lations, as the court shall think pro-
per; and if such children are within
the age of seven years, the mother
may obtain an order that they shall
be delivered to her and remain in her
custody until attaining such age. See
10 Sim. 291; 11 Id. 178. In New
York, a wife living separate from her
husband, but not divorced, may, by a
statutory provision, sue out a habeas
corpus to have the minor child of the
marriage brought before the Supreme
Court, which may award the custody
of the child to the mother, for such
time, and under such regulations, as
it may see fit to prescribe, the court
retaining power, from time to time, to
vary, modify, or annul its order; 2
N. Y. R, S. 148. The object of these
statutes is, doubtless, to confer upon
the courts a greater discretionary
power, in these painful cases of con-
flict between husband and wife for
the custody of their infant offspring,
than they were at liberty to exercise
under the more rigid rules of the com-
mon law. For cases on this subject,
see Ex parte M'Dou-ley, 8 Johnson,
328; Ex parte Waldron, 13 Id. 418;
Ex parte Chegary, 18 Wend. 637 ;
Ex parte Xickerson, 19 Id. 16; Ex
WARMSTREY V. LADY TANFIELD.
279
parte Barry, 8 Paige, 47 ; 25 Wend.
68 j 3 Hill, 399. The present Re-
vised Statutes of this state, provide,
that when any husband and wife shall
live apart, without being divorced,
either party may apply to the court
having jurisdiction, for a writ of
habeas corpus to have a minor child
of the marriage brought before it, and,
on the return of such writ, the court,
on due consideration of the age and
sex of the child or children, and the
respective fitness and conditions of the
parents, may award the custody of
the child or children to either parent,
under such regulations and restric-
tions, and with such provisions and
directions, as the case may require;
R. S. p. 606, §§ 73, 74. The whole
matter, therefore, is now left to the
sound discretion of the court, having
regard to the welfare and true interest
of the child, as well as the permanent
interests of society, in the due en-
forcement of matrimonial obligations.
This statute, however, was not in force
when this case was before the Circuit
Court. As the law then stood, the
decision was unquestionably correct."
EQUITABLE ASSIGNMENTS.
*WARMSTREY v. LADY TANFIELD.
4 CAR. 1.
REPORTED 1 CH. REP. 29. 1
[*610]
Possibility Assignable in Equity.] — A grant of a future possibility not
good in law, yet a possibility of a trust may be assigned in equity.
The plaintiff's title appeared to be, that one William Freeman, being pos-
sessed of the third part of the parsonage for the whole term to come, granted
all his interest therein, to one Alborough, in trust for the use of the said
William Freeman and Alice his wife, during their lives, and after to the use
of such issue male of their two bodies as the said William should by will
appoint; and after, the said William appointed the premises after the death
of the said Alice unto Richard Freeman, son of the said William and Alice ;
and that the said interest in law of the said Alborough came by mesne convey-
ance unto John and Robert Palmer ; and that the said Richard Freeman,
during the life of the said Alice, who not long after died, assigned the pre-
mises unto the plaintiff, and also released to the plaintiff, and the said Palmers
assured their interest in law in the said premises to the plaintiff.
The defendant insists, for title, that the said Richard Freeman, about two
years after his assignment aforesaid to the plaintiff, made a lease of the premises
to Walter Thomas and John Makerith, who passed their estate to one Evans,
> L. A., fol. 151 ; 1 Eq. Ca. Ab. 46, pi. 10 ; 10 Co. 47.
230 EQUITABLE ASSIGNMENTS.
and Hawkins, in trust for the defendant the Lady Tanfield, and had possession
given her.
This Court, 1 with the judges, taking consideration of the said assignments,
grants, and release, were of opinion, and declared, that howbeit a grant of a
future jyossibility is not good in laic* yet a possibility of a trust in equity
*might be assigned, and the said Richard Freeman's assignment of his
*â– said trust unto the plaintiff is also confirmed by the assignment of the
said Palmer, who had the interest in law, and the said plaintiff's assignment
is also precedent to the deed made to the said Thomas, by which the said de-
fendant, the Lady Tanfield, claimeth the said lease.
[*612] *ROW v. DAWSON.
NOVEMBER, 27, 1749.
REPORTED 1 VES. 33 1. 3
Chose in Action assignable in Equity.] — A. borrows money ofB., and
gives him a draft upon a fund due to him (A.) out of the Exchequer, which
was deposited with the officer from whom the fund teas payable. A. after-
wards becomes bankrupt ; this is an assignment thereof to B. for valuable
consideration, tchich shall prevail against the general assignees under the
commission of bankruptcy.
A chose in action, though not assignable at law, is assignable in equity, and
no particular form of words is necessary.
Tonson and Conway lent money to Gibson, who made a draft on Swinburn,
the deputy of Horace Walpole, viz. : " Out of the money due to me from
Horace Walpole out of the Exchequer, and what will be due at Michaelmas,
pay to Tonson and Conway, value received."
Gibson became bankrupt ; and the epiestion was whether the defendants
Tonson, and the executors of Conway, were first entitled by a specific lien
upon this sum due to the estate of Gibson ; or whether the plaintiffs, the
assignees under the commission, are entitled to have the whole sum paid to
them ; it being insisted for them, that this draft was in the nature of a bill of
exchange, and that the property was not divested out of the bankrupt at the
time of the bankruptcy, in law or ecpuity.
Lord Chancellor Hardwicke. — At first I little doubted about my own
jurisdiction, and whether the plaintiffs ought not to have gone into the
1 Lord Coventry was Lord Keeper. 2 See Lampet's case, 10 Co. 47, a, 48, b.
3 Reg Lib. 1749, B., fol. 89.
ROW" V. DAWSON. 281
Exchequer, as *being a court of revenue ; for this is not a personal r*gig-i
credit given to, or demand upon the officer, but to be paid out of that
money issued out of the Exchequer to the officer ; and this is on warrant, to
be paid out of the revenue of the Crown for public services. But there is
something in the present case delivering it from that : the officer admits he
has received a sum of money applicable to this demand, which brings it to the
old case of a liberate, which a person has under the Great Seal for the pay-
ment of money ; upon admission that the officer had money in his hands appli-
cable to the payment, and proof thereof, that would give courts of law a juris-
diction, so that an action of debt might be maintained on the liberate.
This demand, and the instrument under which the defendants claim, is not
a bill of exchange, but a draft, not to pay generally, but out of his particular
fund, which creates no personal demand ; therefore, not a draft on personal
credit, to go in the common course of negotiation, which is necessary to bills
of exchange, by draft on the general credit of the person drawing, the drawee,
and the indorser, without reference to any particular fund. The first case of
which kind, I remember to have been determined in B. B. not to be a bill of
exchange, was a draft by an officer on the agent of his regiment, to be paid
out of his growing subsistence. Then what is it, for it must amount to some-
thing ? It is an agreement, for valuable consideration beforehand, to lend
money on the faith of being satisfied out of this fund ; which makes it a very
strong case. If this is not a bill of exchange, nor a proceeding on the per-
sonal credit of Swinburn or Gibson, it is a credit on this fund, and must
amount to an assignment of so much of the debt : and, though the laic does not
admit an assignment of a chose in action, 1 this Court does ; and any words
will do, no particular words being necessary thereto.
In the case of a bond, it may be assigned in equity for valuable considera-
tion, and good, although no special form used. Suppose an obligee receives
the money on the bond, and there is wrote on the back of it, " Whereas I have
^received the principal and interest from such an one, do you the r*pi4i
obligor pay the money to him." This is just that case ; only it is not
a debt arising from specialty : therefore, like an assignment of rent, by direc-
tion to a tenant or steward, to pay so much of a year's rent to a third person.
The case of Ryall v. Rowles,post, now under the consideration of the Court,
occurred to me. There the assignment of debts, of which no possession, came
in question ; but those are debts depending on partnership, and mentioned
there how far the assignment of a bond should be supported against the
assignees under the commission; and it is clear that they have been supported
where the bond has been delivered over ; but if not, some doubt has been,
whether it should be supported on the foot of the clause in the statute Jac. 1.
But this is clear of that doubt, because this was a debt due to Gibson with-
out any specialty. This draft, which amounts to an assignment, is deposited
with the officer Swinburn, and therefore it attached immediately upon it ; so
1 And so is a possibility for valuable consideration : 1 Ves. 391. And see Warmstrey
v. Lady Tanfield, ante, p. 610.
282 EQUITABLE ASSIGNMENTS.
that Swinburn could not have paid this money to Gibson, supposing he had
not been bankrupt, without making himself liable to the defendants ; because
he would have paid it with full notice of this assignment, for valuable consi-
deration.
[*615] *RYALL v. ROWLES.
FEBRUARY 24, 1747-8; JANUARY 27, 1749-50.
reported 1 ves. 348. 1
Assignment op Debts without Notice to Debtor, invalid against
Assignees in Bankruptcy.] — Assignee by way of mortgage of goods
and chattels, or choses in action, allowing the assignor to continue in the
possession, or in the order and disposition of them, will, upon the construc-
tion of 21 Jac. 1, c. 19, ss. 10, 11/ have no specific lien on them against
his assignees in bankruptcy.
William Harvest, a trader within the several statutes concerning bank-
rupts, in June, 1732, borrowed from Benjamin and Joseph Tomkins £1500,
and, as a security, conveyed and assigned his dwelling-house and brew-house
at Kingston, and all the coppers and utensils in trade belonging thereto, by
way of mortgage, subject to redemption.
He afterwards took Jonathan Stephens into partnership with him, and in less
than a month after the partnership, December 22, 1736, made a second mort-
gage to Potter, in trust for Jonathan Stephens, of his moiety of not only the
utensils, but the stock in trade, debts, profits, &c, for securing a sum of
money then lent to him by Jonathan Stephens, and any future sums that
should be lent.
December 10, 1737, he made a third mortgage of the seventh part of his
undivided moiety of all the stock in trade, utensils, debts due or to groio due,
to Sir James Reynel.
April 24, 1738, he made a fourth mortgage of the seventh part of his
undivided moiety, with the same description, to Skip.
I"*P1 n *September 7, 1738, he made a fifth mortgage to Jonathan Stephens,
for securing to him £2000, which Stephens had paid to one Baugh,
who had the original mortgage on the freehold estate ; the real premises, which
were conveyed by way of lease to Tomkins, having been mortgaged to Philip
1 S. C, 1 Atk. 165 ; nom. Ryall v. Rolle.
2 Repealed, but in effect re-enacted, by 6 Geo. 4, c. 16, s. 72, which has since been re-
pealed, and also in effect re-enacted, by 12 & 13 Vict. c. 106, s. 125.
RTALL V. ROWLES. 283
Stone in 1725, and assigned to Baugh, who assigned to Stephens upon heing
paid the £2000.
He afterwards made a sixth mortgage to George Harvest, his son, of the
seventh part of his undivided moiety of the partnership, stock in trade, debts,
utensils, and pro/its, in consideration of a sum of money lent.
Notwithstanding these several mortgages, he continued in possession of the
utensils and stock in trade as before, altered, disposed, and mortgaged them
as his own, and received the debts in partnership with Stephens, without any con-
trol from any of the mortgagees till 1740, when he failed and became bankrupt.
Then the assignees and mortgagees insisted on the right to the several
goods, stock, &c, comprised in their several assignments, in opposition to the
general creditors claiming under the commission.
The cause was heard before Lord Chancellor Hardwicke, the Seal after
Michaelmas, 1747, and it being a new case, his Lordship ordered it to be
argued by two counsel on each side, assisted by the Judges, upon the ques-
tion, whether all or any and which of these mortgages came within the stat.
21 Jac. 1, c. 19, particularly the latter part of the tenth, and the whole of the
eleventh section, or not ? It was argued February 24, 1747-8.
1 Solicitor- General (the Hon. William Murray, 2 ) and Mr. Noel, for the
assignees under the commission. — The questions upon the construction of this
statute are two : first, whether any conveyance of goods or chattels by way of
mortgage, or with condition of redemption, is within that statute ? The second,
if the Court should think so, whether any of these six mortgages are within
the clause as to any goods comprised therein ; the consequence of which is,
that they must be as creditors under *the commission, and not be pre- r^pi^-i
ferred to the other creditors ?
The first will depend on the true construction of the Act itself: to find out
which three things are to be resorted to : the circumstances at the time of
making the Act, — for to them the law was adapted, — the remedy intended,
and the mischief designed to be prevented thereby, and judicial explanations
of the Act since. It will appear, that some conditions of redemption are within
this clause, and that it was calculated for this. When this Act was made,
fraudulent conveyances were sufficiently guarded against by 13 Eliz. cc. 5, 7.
Twyne's case, 3 Co. 80, upon the construction of that Act, was considered so
strongly within it, that the party was punished criminally ; and particular pro-
visions are made by that statute in case of bankruptcy. Fraudulent convey-
ances, then, being provided for before^ were never intended by the Act now in
construction, but the thing intended was an equal distribution amongst credi-
tors, which was very unequal, some creditors getting prior liens several ways,
as by bond, judgment, &c, to take away; which priority, unless where satis-
faction by execution and recovery before the bankruptcy, was the intention of
the Act, and to reduce creditors who had trusted the bankrupt generally to
1 Feb. 24, 1747-8. 2 Afterwards Lord Mansfield.
284 EQUITABLE ASSIGNMENTS.
equality. Another way creditors had of gaining a priority was by pledged
o-oods • and after that, a new way, by conveyance without delivery of the goods.
Anciently, as appears from the Year Books, 5 Hen. 7, fol. 1, delivery was
necessary to a sale, and was often done by parol. The pledge must be deli-
vered over to the pawnee himself at the time of borrowing, otherwise no pro-
perty vested in him. But that doctrine was afterwards exploded, as in Yelv.
164, and 2 Leon. 30, {Clark's case,) where the property was held vested,
though no delivery at the time. And Owen, 124, held, that such pawnee
might assign over his property ; so that wherever the conveyance was under
hand and seal, it was not necessary to vest the property by delivery of goods
pledged. There is no real distinction between the words mortgaging and
r*nsi pledging: the first *being generally applied to lands, the other to
goods; and they are in effect synonymous terms. As to lands, the
mortgagee holds by title ; and the title deeds always are, or should be, in his
possession. But as to goods, there is no hold where the pawnor keeps them
in his possession. The end of the Act, therefore, being to reduce creditors to
equality, it is but reasonable to put such creditors who took pledges and left
them in the hands of the bankrupt or pledger, to dispose of and alter them as
he pleased, upon equality with other creditors ; for the mortgagees give the