ON THE

LAW OF INFANCY,

INCLUDING

GUARDIANSHIP AND CUSTODY OF INFANTS,

AND THE

LAW OF COVERTURE,

EMBRACING

DOWER MARRIAGE AND DIVORCE,

AND THE

STATUTORY POLICY OF THE SEVERAL STATES

IN RESPECT TO

HUSBAND AND WIFE.

BY RANSOM H. TYLER,

COUNSELOR AT LAW.

ALBANY

WILLIAM GOULD & SON,

LAW BOOKSELLERS AND PUBLISHERS.

1868.

LIBRARY OF THE

LELAND STANFORD JR. UNIVERSITY.

A 28935

Entered according to Act of Congress, in the year eighteen hundred and sixty-eight, by

WILLIAM GOULD & SON,

In the Clerk's Office of the District Court of the Northern District of New York.

WEED, PARSONS AND COMPANY,

PRINTERS AND STEREOTYPERS,

ALBANY, NEW YORK.

PREFACE.

THIS treatise upon the Law of Infancy and Coverture has been prepared from a conviction that there was a necessity for such a work. It is now over fifty years since Judge Reeve issued his valuable treatise upon the domestic relations, and in the interim very great changes have occurred in the rules and principles by which these relations are governed. Especially has the reformer been at work with a relentless hand, in that branch of jurisprudence which pertains to the rights and duties of married women, and it is but recently that the subject has been systematized and wrought into permanent shape. Several English works, and one or two American treatises, upon the law of husband and wife, and marital rights, have been issued within the last fifty years, and some within the last ten years; but it is believed that none of them occupy the entire field, or supersede the necessity of a new work.

Infancy and coverture may be regarded as cognate subjects, and it seems eminently proper that they be treated together. The common law disabilities of both infants and married women are in many respects quite similar, and it is convenient to be able to open to the rules governing each, in the same volume. I have endeavored, in this treatise, to bring out fully and plainly all the rules of the common law now in force upon these two subjects, and, at the same time, to present in comprehensive form the changes and modifications which have been made by statute. The policy of the several states in respect to married women and marital rights is particularly important and interesting, and this statutory policy is fully treated in this work. I have sought to examine all the statutes upon the subject, and, so far as practicable, all the reported decisions of importance touching the question, and then to embody the law in a clear and comprehensive statement, noting the

statute and the authority upon which the statement is made. Thus it has been my design to make the work reliable, and to a certain extent an authority, upon the subjects treated. It is not the province of the text writer to make law, but rather to ascertain and state what it is. We have the lex non scripta-the unwritten or common law; and the lex scripta-the written or statute law; and the law as a whole is contained in the constitution and statutes of the state, in books of reports and judicial decisions, and in the treatises of learned sages of the legal profession, preserved and handed down to us from the highest antiquity. All these different sources it has been my effort to examine, and bring together all that relates to the subjects discussed. In some instances I have given the law in the language of the statutes or judges, but more generally, I have given the substance of the statute, and extracted the principles enunciated by the opinions pronounced, or settled by the judgment of the court. In all cases where statutes have received judicial construction, I have adopted the construction given by the court, although occasionally I have ventured an opinion as to the scope or object of a statute, but in a way that the reader will readily discover that it is not the language or determination of a judicial tribunal. I have sought to collect, from the reported decisions, all the principles settled, and the rules adopted, in respect to the subjects treated; and, while a great number of cases are cited, the repetition of a doctrine enunciated has been studiously avoided. Enough has been taken from the cases referred to, to bring out clearly the doctrine inculcated, in order that the text might be reliable and free from mistake. Throughout the whole I have labored "to combine accuracy and conciseness," and to this end I have endeavored to verify by personal examination all the cases referred to, though in some instances I have been obliged to depend upon the fidelity of digests for the correctness of my citations.

I have had liberty to use freely the American edition of Mr. Bingham's work on the "Law of Infancy and Coverture," the English editions of Mr. McPherson's treatise oninfancy, and Mr. Bright's "Treatise on the Law of Husband and Wife, as Respects Property," and have appropriated all that I thought would be practically useful. Besides, I have received essential aid from Judge Reeve's work upon the "Domestic Relations," the last edition of which is still a very valuable book, Mr. Scribner's

treatise on the law of dower, Mr. Bishop's "Commentaries on the Law of Marriage and Divorce," and Mr. Cord's "Treatise on the Legal and Equitable Rights of Married Women;" and especially am I under obligations to these authors for the reference to cases, many of which I have used. But a very important feature in this treatise is, the elaborate exposition of the statutory policy and local peculiarities of the several states, in respect to husband and wife and marital rights. Lawyers are often consulted in respect to the laws of neighboring states concerning dower, divorce, and the rights of married women; and it will be a convenience which the profession will appreciate, to have a volume at hand in which is embodied the substance of the legislation upon these subjects, together with the results of the litigation which a radical change in the law always engenders. It will be observed that the statutes of many of the states are somewhat similar, so that the decisions of the courts under them have a common application, and may be used as an authority beyond the particular forum in which they were pronounced. While I have made use of all the works within my reach treating upon kindred subjects, for the purpose of ascertaining the law, I have not followed the beaten track of any previous author. The plan which I have adopted is my own, and I trust that it will prove satisfactory and convenient. I flatter myself that the work will be found useful to the profession, and should it receive the approbation of the bar I shall be more than gratified.

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