A guardian named by a father to his natural child, entitled to demand the custody of the child, from a person to whom the father had committed it.
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Andrew Clark, residing in the island of Jamaica, put under the care of Margaret Clark, his sister, who lived in this country, a natural son of his, while an infant. By his testament, he “nominated Duncan Johnston guardian to the person and estate of his said reputed son.” Some years after the arrival of the child, the father being then dead, Johnston brought an action against Margaret Clark, concluding for delivery to him of the person of the boy; in defence against which, she
Pleaded: The law does not recognise any man as the father of a bastard, nor confer on him, as such, that patria potestas, or fatherly guardianship, from which alone can spring the power of naming tutors to his child. He is viewed in no other light than any stranger, who, though he may appoint persons to manage an estate bestowed by him on a pupil, will not acquire the authority over his person. The pursuer, then, is not a legal tutor, and cannot sue in this action. The defender, it is true, received the child from her brother; but the question is not as to re-delivery to him. It is demanded to be made to the pursuer, and in a character which is not authorised or known in law.
Answered: It is not necessary here to maintain the pursuer's legal appointment as tutor. If Andrew Clark, who committed to the defender the custody of his son, had himself the right of redemanding that custody, and if he has conferred that power on the pursuer, in clear and direct terms, by appointing him “guardian to the person of the child”, the present claim must of course be sustained.
The pursuer's argument was adopted by the Court; and it was farther observed, That if a person bestows an estate on a child who has not a lawful father, he may appoint a guardian to that child, to the effect of directing his education, as well as of taking charge of his estate.
The Lord Ordinary decerned in terms of the libel; and
The Court adhered to the interlocutor of the Lord Ordinary.
Lord Ordinary, Hailes.Act. Nairne.Alt. H. Erskine,Clerk, Colquhoun.
Fac. Coll. No. 239. p. 368.
