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§ 3.

BASTARDS
-CUSTO-

DY.

till the child is able to do for itself. This alimentary claim has been found to fall under the triennial prefcription".

Mother en- THE mother, in general, is the fittest person to have the titled dur- charge of the child during the period of infancy P. The fa ing infancy. ther has no title to infift for the custody of his natural child; in fuch cases, the court of feffion exercises a diferetionary power according to the circumftances of the cafe. In general, unless good cause be fhewn for the contrary, the court Daughter. allows a daughter to remain with her mother till fhe arrive at the age of ten years, and a fon till he arrive at seven years.

Son.

--FATHER'S
POWER.

A MOTHER, even after her marriage, was preferred to the cuftody of a child, though the father offered to take

him home ".

THE father has no power over his natural children; he is

fore, it had no influence whatever on their judgment.

• Dict. Vol. iv, p. 105.

P Dr. Burn obferves, "In practice,

the continuance of the payment for
aliment fought by the mother, was
protracted to 10 years, the child be-
ing a female; yet, in the present,
which refpects the aliment of a boy," it is feldom, if ever known, that a
feven years appear a more proper
period. The lords therefore adhered
to the interlocutor of the lord ordi-
nary.-Fac. Coll. The reporter ob-
ferves, that the lord ordinary's inter-
locutor contained this ratio decidendi:
"In respect from the nature of the
"bufinefs carried on by the father,
"the defender, being that of bleach-

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"reputed father, who applies to have "the child taken off from the parifa " into his own management, even fo "much as pretends any advantage to "the child thereby, but merely h's "own intereft to fave charges." Vide Bastards.

9 4th March 1758, Burgess again Halliday. And, in a late cafe, where the father pretended anxiety for the morals of the child, and on that account craved to have the cuflody of the child, mentioning the place where he meant to board it, the court did not indulge him. 11th July 1804. Farquharfon against Anderfon.

BASTARDS

not their tutor, guardian, nor adminiftrator, in law. He $3. does not fucceed to them, nor they to him. He is no other---FATHER'S wife their father, except in poenam, that he may be burdened with their maintenance.

IN France, M. Pothier fays, that baftards were fubfidiarie Table in the maintaining their parents, failing lawful children.

BASTARDS do not fucceed as heirs at law, nor as nearest of kin to any person; not even to their mother either in moveables or heritages. And if they die without lawful children, the king takes up the fucceffion as ultimus hæres.

POWER.

-SUCCES

SION.

BASTARDS may fucceed to property heritable or moveable, succes by deftination. A baftard having children may make a teftament, even in favour of ftrangers: and though he should have no lawful iffue, is abfolute proprietor of his whole gift away. eftate; and may even fettle his heritable property by a deed, May fettle not to take effect till his death a..

G

BUT our later customs, contrary to the opinion of Craig,

Profeffor Chriftian obferves, that " ply the defect of a furrender of a England, "though he is confidered " copyhold in a conveyance, or de"vife by a father to a natural child, "as it will in favour of a legitimate "child." Gilb. For. Rom. 256, 2. Vef. 582. Blackst. V. i, 459, Note 12.

* filias mullius with respect to inherit. ances and fucceffions, yet the law takes notice of his connection with his natural parents for fome other purpofes, as it has been decided, "that if a baftard marries under

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r Droit Civil, &c. Tom. iii, p. 314.
$ By the civil law, fpurii fucceeded
both to mother and grandmother.
L. ii, 4 & 8 ff. unde cognati. Juftinian
makes an exception, which Craig
fays is wonderful (mirum eft) that
fpurious children did not fucceed to
their mother if she was illuftris. L. v,
AD SC. Orphitianum.

a Erfk. Inft. P. iii, t. 10, § 6.
R

He may

heritage by a deed mortis caufa.

§ 3.

BASTARDS

have adopted the doctrine of fome other states, that baftards -SUCCES- having no lawful children, are incapable of making a tefta

SION.

$4.

ATED

ment b.

IV. THE fovereign, the fountain of honour, can remove th LEGITIM- ftain of bastardy by letters of legitimation; which enable th CHILDREN. baftard to make a teftament, and even to affume the nam and arms of his putative father's family, (only marked wit a croís barr): letters of legitimation, however, do not mak his property as in right of blood, descendible to his agnates that is, his relations by the father, unless they contain a exprefs clause to that effect. But they never entitle him as in right of blood, to fucceed to any perfon; because tha would interfere with the rights of third parties.

b Erfk. ib.

c Children legitimated by fubfequent marriage being, to all intents, lawful children, bear their father's arms without any fuch diminution.

"I cannot," fays fir George Mackenzie," be fo partial here as not to reprove an error of my own coun"trymen, who make the mark of "baftardy to be a ribbon fable, and "make it extend from the dexter "corner of the fhield to the finifter; "for the mark of baftardy fhould "fill be finifter: nor is it called a "ribbon in any nation.

"And though we have received "an opinion, that the baftard's dif

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CHAP. X.

1.

Of Perfons under Age.

A CHILD is under pupillarity, if a male, till fourteen,

fr.

PUPILLARI

TY..

and if a female, till twelve years of age. Minority begins where pupillarity ends, and continues till majority, Male. that is, the age of twenty-one years complete.

Female.

PUPILS cannot in any degree act for themselves. They are Pupil. protected from imprisonment on civil debts. But if pupils be guilty of thieving, or other crime or mifdemeanour, they are liable to be punished as the circumftances of the cafe and their knowledge of the criminality of the act may feem to require. In cafes of peculiar aggravation, their guilt may perhaps even be fuch as to be capitally punishable.

THE father has the right of naming tutors: if he name Tutors named by none, the nearest relation by the father's fide is entitled to the father.

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PUPILS.

act as tutor-in-law, the perfon of the child being entrusted to the mother till it attain the age of feven, if the remain Cuftody of unmarried, and failing her to the next cognate, i. e. relation by the mother.

his perfon.

Factor, loco tutoris.

Tutory dative.

Inventory.

$2.

MINORS.

Father, if curator.

May they

If no tutor at law demand the office of tutor, a stranger may apply to the barons of exchequer for a tutory dative; or the court of feflion may, upon the application of any kinfman, and under certain regulations, appoint a factor loco tutoris for the management of the pupil's eftate.

TUTORS must make up an inventory. The office of a female tutory falls by her marriage. A tutor cannot act where he has a personal interest: he cannot be auctor in rem fuam. A larger fum than the interest of the pupil's stock, or the rent of his eftate, fhould not be employed for his education and maintenance.

II. MINORITY begins where pupillarity ends, and continues till twenty-one years of age, when both boys and girls become major.

THE father cannot on death-bed name curators to his children. Even in liege poustie, he cannot name them to his grandchildren, nor to his forisfamiliated children.

THE father, if alive, is curator as well as tutor, that is, administrator in law, to his children. Otherwife, the minor chooles curators to himself.

CURATORS may encroach upon the ftock, for giving the the floc.? young man neceffary education, or putting him into a way

encroach on

Reftitutio.

of bufinefs.

MINORS, not having curators, may be restored against all deeds that are hurtful to them, granted by them in their mi

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