Loury against Reynes

JurisdictionEngland & Wales
Judgment Date01 January 1793
Date01 January 1793
CourtCourt of the King's Bench

English Reports Citation: 83 E.R. 526

COURT OF KING'S BENCH

Loury against Reynes

[217] term. sangt. hlll. anno 29 & 30 car. II. in banco regis. loury against reynes. Where an infant hath only goods, the Ecclesiastical Court may appoint him a guardian. Prohibition was prayed to the Ecclesiastical Court of York to stay a suit there by a curator, which that Court had appointed to an infant who had only personal estate, against another who detained the person of the infant from him ; and the suit was to have the person of the infant deliverer! to him. Curia. The Spiritual Court may appoint a curator for an infant that hath only personal estate, but whether such curator can maintain an action there for the custody of the person 1 they seemed to doubt. But they granted a prohibition, and ordered the plaintiff to declare that the matter might come judicially before the Court; accordingly it was done, and in Hillary term 30 & 31, the case came to be argued. The declaration was, that the title to guardianship is determinable at common law ; nevertheless, that the defendant had libell'd against him in the Spiritual Court, that by the canons and ecclesiastical constitutions any person having the tuition of an infant under age committed to him by the will of the father, or per judicem competentem, ought to have the custody of such infant and of his portion, and that if any person detain such infant or his portion, he is punishable, and compellable by ecclesiastical censures to deliver up the person and portion of such infant to his tutor or guardian, and that the custody of James Reynes, [218] an infant under the age of 14, and of Anne Reynes under the age of 12, both of them having legacies left them by their father, was upon the probate of the will committed by the Ecclesiastical Court to the now defendant, plaintiff there, 2LEV.219. PASCH. 30 CAR. IT. IN B. R. 527 grandmother of the said infanta, 'till the son should attain the age of 14 and the daughter the age of 12, and that the defendant there detained them. The defendant pleaded non pro.tecut' fuit contra prohibititmem; and pro consultatione habend' he pleaded, that by the common law used and approv'd in England, if any person by his will bequeath goods to his infant children, the Ordinary, before whom the will is prov'd, hatli us'd to commit the custody of sons and their portions 'till they come to the age of 14, and of danghters and their portions 'till they attain the age of 12, except where such...

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