Coltman v. Hall , 31 Me. 196 ( 1850 )

Shepley, O. J. orally.

The statute of 1821 provided that, in a case like this, the defendant should have judgment. The mere fact that the defendant was guardian, was a defence. Bridges v. Bridges, 13 Maine, 408. The provision of the Revised Statute is different. Under it the defendant must show something further than his guardianship. He is to show himself entitled to the custody of the child, as his ward. Has this been done ? By chap. 110, sect. 5, the custody pertains to the guardian, only when there is no father or mother competent to transact their own business. In this case, the child had neither father or mother. The mother-in-law is not within the statute. There was then no person entitled to the custody, above the guardian. True, the plaintiff was educating the child under a gift by the father. But the gift was not by last will; it was merely verbal ; it cannot operate against the statute. Nonsuit confirmed.