bedell versus constable refer to in the good of Parnell l r p d by the Act of  car cap it be among other thing enact that where any person have or shall have  any child or child under the age of one and twenty year and not marry at the  time of his death it shall and may be lawful to and for the father of such  child or child whether bear at the time of the decease of the father or at  that time in ventre sa mere or whether such father be within the age of one  and twenty year or of full age by his deed execute in his life time or by his  last will and testament in write in the presence of two or more credible  witness to dispose of the custody and tuition of such child or child for and  during such time as be or they shall respective remain under the age of one  and twenty year or any lesser time to any person or person in possession or  remainder other than Popish recusant and such disposition of the custody of  such child or child make since the four and twenty of February or hereafter to  be make shall be good and effectual against all and every person or person  claim the custody or tuition of such child or child as guardian in soccage or  otherwise and such person or person to who the custody of such child or child  have be or shall be so dispose or devise as aforesaid shall and may maintain a  action of ravishment of ware or trespass against any person or person which  shall wrongful take away or detain such child or child for the recovery of  such child or child and shall and may recover damage for the same in the say  action for the use and benefit of such child or child and such person or  person to who the custody of such child or child have be or shall be so  dispose or devise shall and may take into his or their custody to the use of  such child or child the profit of all land tenement and bereditaments of such  child or child and also the custody tuition and management Vaughan of the good  chattel and personal estate of such child or child till their respective age  of one and twenty year or any lesser time accord to such disposition aforesaid  and may bring such action or action in relation thereto as by law a guardian  in common soccage may do by the will be devise in these word I do bequeathe my  son Thomas to my brother Robert Towray of Rickhall to be his tutor during his  minority before this Act tenant in soccage of age may have dispose his land by  deed or last will in trust for his heir but not the custody and tuition of his  heir for the law give that to the next of kin to who the land can not descend  but tenant in soccage under age can not dispose the custody of his heir nor  devise or demise his land in trust for he in any manner now by this statute he  may grant the custody of his heir but can devise or demise his land in trust  for he for any time direct for if he shall the devise or demise be as before  the statute as I conceive which be most observable in this case I say direct  he can but by a mean and oblique he may for nominate who shall have the  custody and for what time by a consequent the land follow as a incident give  by the law to attend the custody not as a interest devise or demise by the  party this difference be very material for if the father can devise the land  in trust for he until his son come to one and twenty as he can grant the  custody then as in other case of lease for year the land undoubted shall go to  the executor or administrator of he who the father name for the tuition and  the trust shall follow the land as in other case where land be convey in trust  but when he can ex director devise the land in trust then the land follow the  custody and not the custody the land and the land must go as the custody can  go and not the custody as the land can go as where a house or land belong to a  office or a chamber to a corody the office or corody be grant by deed the  house and land follow as incident or belong without livery because the office  be the principal and the land but pertain to it Vaughan er p Vaughan a second  consideration be that by this Act no new custody be institute but the office  of guardian as to the duty and power of the place be leave the same as the law  before have prescribe and settle of guardian in soccage but the modus to have  of that office be alter by this Act in two circumstance the first it may be  hold for a long time videlicet to the age of the heir of one and twenty where  before it be but to fourteen it may be by other person hold for before it be  the next of kindred riot inheritable can have it now who the father name shall  have it so it be as if a office grantable for life only before shall be make  grantable for year by parliament or grantable before to any person shall be  make grantable but to some kind of person only the office as to the duty of it  and its essence be the same it be but the modus to have alter if therefore  this new guardian be the same in office and interest with the former guardian  in soccage and vary from it only in the modus to have then the ware have the  same legal remedy against this guardian as be against the old but if this be a  new office of guardianship differ in its nature from the other the heir have  no remedy against he at all in law for though this new guardian be enable to  have such action as the old may have yet this Act enable not the heir to have  like action or any other against he as he may against the guardian in soccage  the intent of this statute be to privilege the father against common right to  appoint the guardian of his heir and the time of his wardship under one and  twenty but leaves the heir of all other ancestor ware in soccage as before  therefore I hold that such a special guardian can transfer the custody of the  ware by deed or will to any other that he have no different interest from a  guardian in soccage but for the time of the wardship when a Act of parliament  alter the commonlaw the meaning shall not be strain beyond the word except in  case of public utility when the end of the Act appear to be large than the  enact word but by the word the father only can appoint the guardian therefore  the guardian so appoint can appoint another guardian Vaughan the mother have  the same concern for her heir as the father have but she can by the Act name a  guardian therefore much less can the guardian name by the father the father  can by the Act give the custody to a papist but if it may be transfer over by  he who the father name or by Act in law go to his executor or administrator it  may come to a papist against the meaning of the Act office or act of personal  trust can be assign for the trust be not personal which any man may have at  the commonlaw none can have the custody and marriage of a man son and heir  apparent from the father yet the father can not grant or sell the custody and  marriage of his heir apparent though the marriage be to his own benefit as be  resolve by the great number of the judge in the Lord bray case who by  indenture have sell for eight hundred pound the custody and marriage of his  son and heir apparent in the time of Henry the eight to the Lord Audley  chancellor of England Lord Cromwell Lord privy seal sir William Paulett  treasurer of the household the marquis of Winchester Lord treasurer the reason  give be that the father have no interest to be grant or sell to a stranger in  his old son but it be inseparable annex to the person of the father two judge  differ because a action of trespass will lie for take away a man heir apparent  and marry he whence they conclude he may be grant as a chattel but a action of  trespass will lie for take away one servant for take away a monk where he be  cloister in punishment pro wife lead away cum good man yet none of these be  assignable by the statute of Westminster the first if the guardian in chivalry  make a feoff of the ware land in his custody during his minority the heir may  forthwith Vaughan er p have a writ of novel seize against the guardian and  tenant and the land recover shall be deliver to the next of kin to the heir to  be keep and account for to he at his full age Vaughan this be neither guardian  in soccage nor chivalry but a special guardian appoint by the statute and such  a guardian can not assign over nor shall it go to his executor by the express  book this case likewise and common experience prove that guardian in soccage  can assign nor shall the custody go to his executor though some ancient book  make some doubt therein for express by the statute of h the next of kin be to  answer and be Accountable to the heir in soccage as this special guardian be  here by Westminster the first these several sort of guardian trust for the  heir can neither assign their custody nor do it go to their executor because  the trust be personal and they have no interest for themselves the trust be as  personal in this new guardian nor have he any interest in it for himself and  therefore he shall not assign it a guardian in soccage can transfer his  custody because it be a personal trust but the trust of this special guardian  be more personal therefore that he shall transfer it conclude strange the  office of a philizer be a office of personal trust to do the business of the  court and not assignable no execution can be upon it sir George Reynels case a  office of trust and confidence can be grant for year because then it may go to  person that be to executor or administrator never trust or confide in so be  Littleton express that all office of trust as steward constable bedlary  bailiffwick must be personal occupy unless they be grant to be occupy by a  deputy and be not assignable and a more near or tender trust can be than the  custody and education of a man child and heir and preservation of his estate  it may be say that in these case the law do particular appoint the guardian  and therefore no other can be but in the case at bar the father appoint the  person not the law it be true there be a difference in the case but not to  make the trust more assignable in the one case than the other Vaughan where  the law appoint who shall be trust the trust can be refuse as in the several  guardian before mention but where the person name the trustee the trust may be  refuse but once accept it can be transfer to other more than where the law  name the trustee a executor have a private office of trust for we speak not of  public and be name by the testator not by the law therefore he may refuse but  can assign his executorship but it be true a executor may make a executor due  circumstance observe who shall discharge the first testator trust but the  reason be that after debt pay and legacy the surplus of the good belong to the  executor to appropriate jure a administrator have a private office of trust he  can assign nor leave it to his executor he be not name by the intestate but by  the law in payt for he but not peremptory he may not claim it if he will  because it must pass through the ordinary a man bailiff or receiver be office  of personal trust and not assignable so be the office of every servant a  arbitrator or one authorize to sell a man land to give livery or receive it  can assign it be a personal confidence a custody be not in its nature  testamentary it can pay debt nor legacy nor be distribute as nourishing it be  not Accountable for to the ordinary as intestates good be the heir ought to  have a guardian without interruption but a executor may be long before he  prove the will and may at length refuse a administration long before it be  grant and after may be suspend by appeal and in these time the ware have no  certain guardian responsal for his estate or person and where it may be say  that these be naked authority and the person have Vaughan er p no interest but  a guardian have interest he may let and set the ware land during minority avow  in his own name grant copyhold estate and the like Vaughan it be a interest  conjoin with his trust for the ware I speak not here of equitable trust  without which interest he can not discharge the trust but it must be a  interest for himself which be transferable or shall go to his executor all  executor and administrator have interest and property necessary to their trust  for they may sell the good or lease of the testator or intestate without which  they can not execute the trust a monk make a executor may do the like who in  his own right can have no interest or property but such interest prove not  that the executor or administrator may assign their trust or that it shall go  to their executor for it be agree in that case of Shopland that such interest  as a guardian in soccage have shall not go to his executor but be annex to his  person and therefore not transferable so as I take the sense of the Act  collect in short to be whereas all tenor be now soccage and the next of kin to  who the land can descend be guardian until the heir age of fourteen yet the  father if he will may henceforth nominate the guardian to his heir and for any  time until the heir age of one and twenty and such guardian shall have like  remedy for the ware as the guardian in soccage by the commonlaw have another  exposition of this Act have be offer as if the father do devise his land by  way of lease during the minority of the heir to he to who he give the custody  in trust for the heir and so the land be assignable over and go to the  executor but follow with the trust this be a force exposition to carry the  custody to any stranger to the father or to the child or to any that may  inherit the land contrary to the ancient and excellent policy of the law by  such a exposition the heir shall have no account of such a lessee as he may  against a guardian but must sue in equity for this statute give action such as  guardian may have to he who have the custody but give none against he if such  lessee shall give the heir marriage the heir have no remedy but the guardian  in soccage shall account for what the marriage be worth Vaughan the statute  only say that such person nominate by the father may take to his custody the  profit of all land tenement and hereditament of such child and child and also  the custody tuition and management of the good chattel and personal estate of  such child or child and may bring such action in relation thereto as a  guardian in soccage may do nun of which word will charge he with the value of  the marriage if he have nothing for it if the heir be in custody of such a  lessee and be guardian by nearness of kin to another infant the guardian of  the heir by law be guardian to both but such a lessee have no pretence to be  guardian of the second infant by any word of the Act for he be neither a  hereditament or good or chattel of the first infant as to the second part if  the father be of age shall devise his land to I S during the minority of his  son and heir in trust for his heir and for his maintenance and education until  he be of age this be no devise of the custody within this statute for he may  have do this before the statute if the father under age shall make such a  devise it be absolute void for the same syllable shall never give the custody  of the heir by the father under age which do not give it by the father which  be of age but in both case a devise of the custody be effectual and there be  no reason that the custody devise shall operate into a lease when a lease  devise shall not operate into a custody which it can do if a man devise the  custody of his heir apparent to I S and mention no time either during his  minority or for any other time this be a good devise of the custody within the  Act if the heir be under fourteen at the death of the father because by the  devise the modus to have custodiam be change only as to the person and leave  the same it be as to the time Vaughan er p but if above fourteen at the father  death then the devise of the custody be mere void for the incertainty Vaughan  for the Act do not intend every heir shall be in custody until one and twenty  non ut so long send ne still further therefore he shall be in this custody but  so long as the father appoint and if he appoint no time there be no custody if  a man have power to make lease for any term of year not exceed one hundred and  he demise land but express no time shall this therefore be a lease for one  hundred year there be no reason it shall be a lease for the great term he can  grant more than for the least term he can grant or indeed for any other term  under one hundred therefore it be void for incertainty and the case be the  same for the custody for if the father may intend as well any time under that  no reason will enforce that he only intend that and to say he intend the  custody for some time therefore since no other can be it must be for that will  hold as well in the lease and in all other case of incertainty if a man devise  ten pound to his servant but have many none shall have it for the incertainty  it may be demand if the father appoint the custody until the age of one and  twenty and the guardian die what shall become of this custody it determine  with the death of the guardian and be a condition in law and the same as if a  man grant to a man the stewardship of his manor for ten year or to be his  bailiff it be employ by way of condition if he live so long a copyholder in  fee surrender to the lord ad thought that the lord shall grant it back to he  for term of life the remainder to his wife till his son come to one and twenty  remainder to the son in tail remainder to the wife for life the husband die  the lord at his court grant the land to the wife till the son full age the  remainder ut above the wife marry and die intestate the husband hold in the  land the wife administrator and to who the lord have grant the land during the  minority of the son enter upon the husband this entry be adjudge unlawful  because it be the wife term but otherwise it have be if the wife have be but a  guardian or next friend of this land the like case be in Hobart if it be  insist that this new guardian have the custody not only of the land descend or  leave by the father but of Vaughan all land and good any way acquire or  purchase by the infant which the guardian in soccage have not that alter not  the case for if he be guardian in soccage without that particular power give  by the statute he be equal guardian in soccage with it and be no more than if  the statute have appoint guardian in soccage to have care of all the estate of  the infant however he come by it beside that prove direct that this new  guardian do not derive his interest from the father but from the law for the  father can never give he power or interest of or in that which be never his  the court be divide videlicet the chief justice and justice wile for the  plaintiff justice Terrell and justice archer for the defendant Vaughan hill  car two c b rot