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3.

Dickinson v. BARBER, Sept. T. 1812, 9 Mass. Rep. 225, 3d

ed. 215. But the

Slander. facts on which they The counsel for the defendant offered the depositions of Meground their opin

dad Pomeroy and Charles Blake, two physicians, who testified jons, are to that in their opinion, the defendant had been insane from the from physi time of speaking the words, to the admission of which deposiwell as oth tions the counsel for the plaintiff objected, and they were excluers.

ded by the judge.

Per Cur. The deponents state no facts, on which they ground their opinion. This is to be required from physicians as well as others. Juries are to judge of facts; and although the opinions of professional gentlemen on facts submitted to them, have justly great weight attached to them, yet they are not to be received as evidence, unless predicated upon facts, testified either by them or by others.

IV, OF THE JURISDICTION OF THE COURT OF CHAN

CERY.

1.

IN THE MATTER OF Heller, 1832, 3 Paige's Ch. Rep. 201. The court

Walworth, Chancellor. The statute has given this court exof chancery clusive jurisdiction orer the estates of idiots and lunatics; and has exclu sive juris

over the estates of habitual drunkards, except in a few cases diction of where a concurrent jurisdiction is given to the courts of comof idiots mon pleas; 2 Rev. Stat. 52, s. 1, 3. and luna tics.

If any person has a legal or equitable claim against the estate, which is under the care and management of the committee, who refuses to allow the same, he must apply to this court by petition, to enforce his claim. And he will not be permitted to obtain payment by means of a suit at law, except where the suit is brought under the express direction or sanction of this court. Although the lunacy of the defendant may not always form a legal defence, this court, upon a proper application by the committee, will restrain such a proceeding, and compel the plaintiff to come here for justice; 1 Jac.& Walk. Rep. 636, 646; 5 Mad. Rep. 406; 2 Sch. & Lef. 229; 1 Hogan's Rep. 98. And even if a party succeeds in an action at law, it will be a contempt of this court, for him to interfere with the property which is under its exclusive control. Although he may afterwards come here for the payment of his claim, he must again establish it in such a manner as this court may think proper to prescribe. He must also give up his proceedings at law, and pay his own costs, before this court will interfere for his relief.

5.

Ard over

cases ot

IN THE MATTER OF JAMES BARKER, 1816, 2 Johns. N. Y. Ch.

Rep. 232. S. P. JACKSON v. KING, 4 Cowen's N. Y.

Rep. 217. A petition of John Barker and Mary Dederick was presented, stating, that they are the children of James Barker, and that he mere inbe is so far deprived of his reason and understanding, as to be whol-coling of ly unfit to manage his affairs, and praying that a commission, in amounting the nature of a writ de lunatico inquirendo might issue. Many lunacy. acts of his were also stated, showing the imbecility of his mind, and his want of understanding.

Kent, Chancellor. The case, as stated, appears to be deeply interesting to humanity, and to present a strong appeal to the powers and justice of this court. The difficulty which has aris en with me, is as to the extent of my jurisdiction. Mere imbecility of mind, not amounting to idiocy or lunacy, has not, until very lately, been considered in the English court of chancery, as sufficient to interfere with the liberty of the subject over his person and property. I have not met with a case prior to our revolution, which has gone so far.

Lord Hardwicke disclaimed any jurisdiction over the case of mere weakness of mind; yet it is certain, that when a person becomes mentally disabled, from whatever cause the disability may arise, whether from sickness, vice, casualty, or old age, he is equally a fit and necessary object of guardianship and protection. The court of chancery,is the constitutional and appro. priate tribunal to take care of those who are incompetent to take care of themselves. There would be a deplorable failure of justice, without such a power. The object is protection to the helpless; and the imbecility of extreme old age, when the powers of memory and judgment have become extinct, seems as much as the helplessness of infancy, to be within the reason and necessity of the trust. I am aware, however, that the inquiry must, in many cases, be peculiarly delicate, because it concerns the character of the party and his natural rights, and because of the difficulty there is in ascertaining the extent of the decay of the mind, necessary to form a proper case for the interference of the court. Under this impression of the subject, I have follow

ed carefully the progress of the decisions, with a view to discover, as far as I was able, my authority and duty in the case.

The learned chancellor, after elaborately reviewing the English authorities, concludes thus: I shall, therefore, award a commission, in the nature of a writ of lunacy, to enquire whether James Barker, be of unsound mind, or mentally incapable of managing his affairs.

V. OF THE COMMISSION.

1.

IN THE MATTER OF TRACY, 1829, 1 Paige's N. Y. Chan. Rep.

p. 581.

It is the pri Walworth, Chancellor said, it was the privilege of a party vilege of a party a

against whom a commission of lunacy is issued, to have nogainst tice, and to be present at its execution. That if there were any whom a commis peculiar circumstances in the case, which rendered it improper or sions iofslunda unsafe to give notice to the party, as in some cases of furious to be pres madness, the facts should be stated in the application to the ent at its ex ecution.

court, so that a provision might be inserted in the commission, dispensing with the necessity of notice.

2.

IN THE MATTER OF Pettit, 1850, 2 Paige's N. Y. Chan. Rep.

p. 174.

obtain the

A commit In this case the alleged lunatic was a resident of the state tce must be appointed

of Connecticut. A petition was presented by her brother-inin this state law, setting forth that she was of unsound mind, and was entisident luna tled to an undivided share of certain real property in this state, tic, to ena ble him to

and praying that a commission of lunacy be issued and directed

to certain persons in the state of Connecticut, as commission. control of

ers. property here; and a

The Chancellor. It was settled in the case of Perkins, 2 John. commission may issue

issue" Ch. Rep. 124, that a committee must be appointed by this court, to ascertain for a non-resident lunatic, to enable him to obtain the control of but it can property in this state; and that a commission might issue for cuted be

But as the commissioners cannot authorize the yond the

empannelling of a jury beyond the jurisdiction of this court, limits of the state. the commission cannot be executed out of the state; Southcots'

case, 2 Ves. sen. 402.

The usual order, directing the commission to be executed, at or near the residence of the lunatic, must be dispensed with in such a case; and it may be executed in such county as may be

not be exe

that purpose.

most convenient. In this case, the residence of the lunatic is near the line of this state; the commission must, therefore, be executed in the adjoining county, which is most convenient and nearest to her residence. The commissioners must also give her due notice of the time and place of executing the commission, that she may attend, if she think proper to do so.

VI. OF THE INQUISITION.

1.

Den v. CLARK, Nov. T. 1828, 5 Hals. N. J. Rep. 217. Per Cur. Ewing, C. J. After revieving the English cases, of an inqui says; “From these citations the following conclusions are dedu- sition of lu cible:

macy: 1. An inquisition of lunacy is not conclusive against any person not a party to it.

2. When an inquisition is admitted in evidence, the party against whom it is used, may introduce proof that the alleged Tunatic was of sound mind, at any period of the time, covered by the inquisition. This position is, indeed, a corollary from the former, as it would be inconsistent to say, the inquisition was not conclusive, and at the same time to refuse to receive any evidence to contradict the fact stated it.

3. The party, against whom the inquisition is received, may impugn the finding by contrary evidence, without first pursuing the proceedure technically called a “traverse of the inquisition."

2. IN THE MATTER OF PERKINS, A Lunatic, 1816, 2 Johns. N. Y.

Chan. Rep. 124. Petition, stating that Daniel Perkins of Massachusetts, had Aninquisi been there duly found, by inquisition, a lunatic, and that the cy, taken petitioner had, by the competent authority in that state, been in another appointed guardian of the person and estate of the lunatic. state, is not That the lunatic had 70 acres of land in this state, and that the authorise a

sale of the same yielded very insufficient rents and profits; and that it was lunatic's es necessary, and he, therefore, prayed, that the same might be tate here;

but it is sut sold, for the expense and maintenance of the lunatic.

ficient to Kent, Chancellor. It is necessary, that a commission of luna. warrant the

issuing a cy issue here; the inquisition abroad was not sufficient to au- new com thorise a sale of the real estate; 1 Schoales and Lefroy. The mission, powers given by the statute, (Sess. 24, ch. 30,) apply only to may' per

haps, be sufficient

cases arising under the authority of this court. Perhaps, the groud or inquisition in Mass. may be sufficient ground, or evidence, to evidence to warrant an

warrant the inquisition here, according to what was said in Gilinquisition, lam's case; 2 Vesey, Jun. 587. It is, at least, sufficient to warhere on such new com rant the issuing a commission; and there is no doubt, from the mission.

case ex parte Southcote, (Amb. 109,) that a commission of lunacy may issue against a person resident abroad.

3.

IN THE MATTER OF M'CLEAN, A Lunatic, 1822, 6 Johns. N. Y.

Ch. Rep. 440. On the peli tion of a la This was a petition by the lunatic, for the discharge of his natic for the committee on the ground of returned sanity. discharge of his commit Kent, Chancellor. I am still of opinion, that the petitioner is tee, on the in a state of confirmed and unchanged lunacy; yet, in order to ground of a returned give satisfaction to those persons who appear to entertain a difsanity, it is in the sound ferent opinion, I will give the petitioner an opportunity to travdiscretion

erse the former inquisition, or to try the question of returned of the court toallow him sanity, upon a feigned issue. The granting the one or the other, the inquisi no doubt, rests in sound discretion. tion, or to try the ques tion by a feigned is

VII. TO WHOM THE CUSTODY OF THE LUNATIC'S

PERSON AND ESTATE MAY BE COMMITTED.

sue.

1.

tic's

and estate,

IN THE MATTER OF MARY Livingston, a LUNATIC, 1815, 1

Johns. N. Y, Ch. Rep. 436. The custo dy of a luna Petition of Alexander Crofts, and Mary his wife, stating, that person

on a commission, in the nature of a writ de lunatico inquirendo, real and per Margaret Livingston was found a lunatic; that she is the widow be conmik of Robert T. Livingston, deceased, and entitled to real and perted to the

sonal estate ; that the petitioner, Mary, is the only child of the next of kin or heir at lunatic; that the lunatic is in a state of deplorable helplessness law.

and lunacy, and has been so for many years, and is now and has been,since the death of her husband, in the care of the petitioners.

Prayer, that they may be appointed to the custody of her person and estate.

Kent, Chancellor. I agree with what was said by Lord Mansfield, in Dormer's case, (2 P. Wms, 262,) that there is no sufficient reason for the old rule against committing the custody of the person and estate of a lunatic to the heir-at-law. The rule in many cases under our statute, would take a child from its pa

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