
    *Alexander Howard and Louisa, his Wife v. Mary M. Faber and Maria Faber, Executrixes of Faber.
    ^Ordinaries can appoint guardians of the persons and personal property of infants.
    This bill was filed by the complainants against the defendants, to recover funds to which they alleged they were entitled, as heirs and distributees of Dr. Adam Petsch. The defence set up was that the fund had been paid over to one Brown, the complainants’ guardian. The complainants replied that Brown had been appointed their guardian by the court of ordinary, which had no such power, and that therefore the payment was not such as would preclude the complainants, having been made to a person not legally authorized to receive it. That the ordinary had no power to appoint a guardian to an infant, either by the common or statute law. That if such had been the usage of this State, it could not make law.
    DeSaussure, Chancellor. There is, no doubt, a considerable apparent difference in the authorities on the question, whether in England the ordinary can appoint a guardian to an infant. The language of Lord Hardwicke in 3 Atk. 631, and Lord Mansfield in 3 Burr. 1436, seems to bear strongly against such a power. On the other hand there are several express authorities in its favor. Sir M. Hale so determines it. 2 Lev. 162, 217. Comyns, in his digest, lays it down as clear law. Swinburn in his Treatise on Wills and Testaments, Vol.I. Powell’s edition, 209, 289, and Burn in his Ecclesiastical Law, Vol. IV. 103, adopt the same doctrine. Dr. Cooper, in his notes on Justinian’s Institutes, 455, speaks of it as settled. And Hargrave in *his rt-A4j note to Coke on Littleton, 89, c. 16, in which he examined the *- apparently conflicting opinions, evidently leans in favor of the affirmative. If, indeed (as wrell we may,) we consider the language of Lord Hardwicke as applying to a case in which the ordinary had appointed a guardian for the lands of an infant, which was clearly beyond his jurisdiction, all the authorities may be easily reconciled. The dictum of Lord Mansfield when explained by the case in which it was used, will not, in any manner, shake the general principle. But if this point be unsettled in Europe, it seems to be well warranted by the long continued usage of South Carolina. The royal governors before the revolution, who, with the council, formed the court of chancery, uniformly, as ordinary of the province, exercised this power. The constitutions of this State, of 1776, sec. 16, and of 1778, sec. 28, specially provide for ordinaries, who should exercise the powers formerly exercised by that officer, and from that to the present time, under successive officers, some of them highly respectable and able men, and on the application of the first lawyers in the State, the ordinaries have granted the guardianship of the person and personal estate of infants in a multitude of cases which have never been questioned. The power has been indirectly recognized by the legislature. For in the act of 1791, establishing the fee bill, which has since been repeatedly published, the fees of the ordinary are allowed for doing services, which it is alleged are illegal. It will not be seriously contended, that the legislature would allow a compensation for doing an illegal act. It must also be remembered that property to a large extent must, in a lapse of so many years, have passed under these guardianships; and were the court to hold them illegal, no foresight can anticipate the evils to which such a decision (which would *necessarily be retrospective) might lead. It should seem too, that after such a lapse of time, a grant of power to the ordinary may be legally presumed. 1 Cowp. 103, 110. 12 Coke, 5, and 1 P. Wms. 107. Usage too has sometimes altered the law ; and I am not aware that we have any other foundation than usage, now established by legal decisions, for the maxim that a sound price warrants a sound commodity, and in opposition to the rule in England. The case of the executors of Wood and others against the executors of Radcliffe has, in this State, settled that executors are not entitled to the residue undisposed of. On the whole I am clearly of opinion, that the appointment of Brown, as guardian, by the ordinary wms a valid appointment, and all payments made, to him in that capacity are good against complainants. This point disposes of the whole case.
    It is ordered and decreed, that the bill of the complainants be dismissed, without costs, except as to the heirs of J. Williamson.
    From this decree there was an appeal.
    April 3, 1827. Pjetigru, Attorney General, for the appellants.
    Lord Mansfield and Lord Hardwicke treat the power exercised by the ordinary of appointing a guardian, and denounce it, as a plain usurpation. The right to appoint a guardian as to real estate the ordinary could not pretend to, and how could an infant have a guardian for the personal, and another for the real estate. 3 Burr. 1346, 1436. 3 Atk. 639. If an inferior tribunal has not jurisdiction over the subject, no usage, however inveterate, can give effect to it. And so of assuming the power of issuing process, wffiich does not fall within their province. F°ster’s Cr. Law, 311. Stephenson’s *Case, 19 State Trials, 846. 3 Campb. 388. 16 Ves. 346.
    Grimke, contra.
    By the custom of Kent, the lord has the power to appoint a guardian; and so by the custom of London. Coke Lit. 88-9. These instances shew that jurisdiction may be created by custom, and on this subject the records of the court of ordinary for one hundred years shew that they have exercised this power. 1 Black. Com. 76. The constitution of 1776 (see Acts of 1823, p. 154, 16, 160) constitutes the office of ordinary, and invests it wdth ail the powers before used. They then exercise the power of appointing guardians.
    King, same aside.
    In England, the king, as parens patrise, is the fountain of ail power, civil, military, and ecclesiastical, and as such had the power of appointing guardians, and this power, in time, was distributed out to the several courts. Watson, E. L. 336, 7. Under the regal government of the State, the governor was the representative of the king, and as such exercised the powers of ordinary, and hence the origin of the power exercised by the ordinaries in this State. It is no disparagement to Lords Mansfield and Hardwicke to say that Lord Hale was at least as well acquainted with the rules of the common law as they were, and he expressly recognizes the power in the ecclesiastical court. 2 Lev. 162. Co. Lit. 88,9, a. note 16. 3 Keble, 384. 4 Burn’s Ecc. L. 103. Grimke’s Law of Ex. 84. ] Powel, 269, 289. Cooper’s Just. 384, 5. Usage will make law. 12 Coke, 4, 5. Cowp. 1045. There is another view of the subject. Under this custom an immense amount of property has been disposed of, and now to unsettle it would create inexplicable confusion. *The fee bill of 1791, contains a fee of 14s. to the ordinary for guardianship bond, and letters, &c.
    W. H. DeSaussure, in reply.
    The court of chancery is the only court having power to appoint guardians. 3 Bac. 410, tit. Guardian C. The ecclesiastical court has no power over guardians in socage or testamentary guardians. The ecclesiastical court of York claims the power under a local custom, but even this is questioned in modern times. Before the revolution the powers of the chancellor and ordinary were vested in the governor and council, and nothing can be inferred from the exercise of this power by that court, which had jurisdiction in the character of a court of chancery. By the act of 1745, Pub. Laws, 202. 1 Brev. 345, guardians are required to make returns to the office of the secretary of State, and not to the ordinary. See the act of 1824, p. 26.
    March, 1827.
   Curia, per

Nott, J.

The court concur in opinion with the chancellor in this case; and I will add, that although under the royal government the governor and council constituted the court of equity, the governor alone was ordinary. The appointments therefore of guardians by him were made in the capacity of ordinary and not as chancellor. The constitutions of 1776 and 1778 confer on the ordinaries then to be appointed the power heretofore exercised by the ordinary. And the judges of the county courts, to whom was confided the powers of the ordinary, always exercised the power of appointing guardians. And the clerk was allowed compensation for entering guardian’s accounts, and all matters relating thereto, binding out poor orphans, and appointing guardians, &c. P. L. 387. The long exercise of the power of appointing guardians by the ordinary, and the

frequent recognitions of such a power by the legislature, although it does not appear anywhere* to be directly conferred, certainly authorizes the exercise of it at this day, and makes it the duty of the court to support the authority of guardians so appointed. The decree is therefore affirmed.

Decree affirmed.  