But the facts on which they ground 3. DICKINSON V. BARBER, Sept. T. 1812, 9 Mass. Rep. 225, 3d Slander. ed. 215. The counsel for the defendant offered the depositions of Metheir opin dad Pomeroy and Charles Blake, two physicians, who testified jons, are to that in their opinion, the defendant had been insane from the be required 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 excluded by the judge. cians as ers. The court 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. Walworth, Chancellor. The statute has given this court exof chancery clusive jurisdiction over the estates of idiots and lunatics; and over the estates of habitual drunkards, except in a few cases diction of where a concurrent jurisdiction is given to the courts of common pleas; 2 Rev. Stat. 52, s. 1, 3. has exclu sive juris the estates of idiots 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. IN THE MATTER OF JAMES BARKER, 1816, 2 Johns. N. Y. Ch. Rep. 217. mind not A petition of John Barker and Mary Dederick was presented, And over stating, that they are the children of James Barker, and that he mere imbe is so far deprived of his reason and understanding, as to be whol- cility 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 appropriate 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 to idiocy or ed carefully the progress of the decisions, with a view to discov er, 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. It is the pri vilege of a party a gainst whom V. OF THE COMMISSION. 1. IN THE MATTER OF TRACY, 1829, 1 Paige's N. Y. Chan. Rep. p. 581. Walworth, Chancellor said, it was the privilege of a party against whom a commission of lunacy is issued, to have notice, and to be present at its execution. That if there were any a commis peculiar circumstances in the case, which rendered it improper or sion of luna unsafe to give notice to the party, as in some cases of furious cy is issued, to be pres madness, the facts should be stated in the application to the court, so that a provision might be inserted in the commission, dispensing with the necessity of notice. ent at its ex ecution. A commit tee must be for a non re 2. IN THE MATTER OF PETTIT, 1830, 2 Paige's N. Y. Chan. Rep. p. 174. In this case the alleged lunatic was a resident of the state 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, and praying that a commission of lunacy be issued and directed to certain persons in the state of Connecticut, as commission tic, to ena ble him to obtain the control of property here; and a commission ers. The Chancellor. It was settled in the case of Perkins, 2 John. may 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 his lunacy, but it can property in this state; and that a commission might issue for that purpose. But as the commissioners cannot authorize the empannelling of a jury beyond the jurisdiction of this court, the commission cannot be executed out of the state; Southcots' case, 2 Ves. sen. 402. not be exe cuted be yond the limits of the state. 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 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. The effect 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: 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 lunatic 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 in 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." nacy. 2. IN THE MATTER OF PERKINS, A LUNATIC, 1816, 2 Johns. N. Y. abroad, or sufficient to sale of the An inquisi Petition, stating that Daniel Perkins of Massachusetts, had tion of luna 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 same yielded very insufficient rents and profits; and that it was lunatic's es necessary, and he, therefore, prayed, that the same might be sold, for the expense and maintenance of the lunatic. Kent, Chancellor. It is necessary, that a commission of lunacy issue here; the inquisition abroad was not sufficient to thorise a sale of the real estate; 1 Schoales and Lefroy. powers given by the statute, (Sess. 24, ch. 30,) apply only tate here; but it is suf ficient to warrant the issuing a au- new com The here, and to may per mission, haps, be sufficient ground or evidence to cases arising under the authority of this court. Perhaps, the inquisition in Mass. may be sufficient ground, or 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 warrant the issuing a commission; and there is no doubt, from the case ex parte Southcote, (Amb. 109,) that a commission of lunacy may issue against a person resident abroad. here on such new com mission. On the peti tion of a lu 3. IN THE MATTER OF M'CLEAN, A LUNATIC, 1822, 6 Johns. N. Y. 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 tee, on the ground of a returned sanity, it is Kent, Chancellor. I am still of opinion, that the petitioner is in a state of confirmed and unchanged lunacy; yet, in order to give satisfaction to those persons who appear to entertain a difin the sound ferent opinion, I will give the petitioner an opportunity to traverse the former inquisition, or to try the question of returned sanity, upon a feigned issue. The granting the one or the other, no doubt, rests in sound discretion. discretion of the court toallow him to traverse the inquisi tion, or to try the ques tion by a feigned is sue. The custo dy of a luna and estate, VII. TO WHOM THE CUSTODY OF THE LUNATIC'S 1. IN THE MATTER OF MARY LIVINGSTON, A LUNATIC, 1815, 1 Petition of Alexander Crofts, and Mary his wife, stating, that tic's 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 sonal, may be commit of Robert T. Livingston, deceased, and entitled to real and personal estate; that the petitioner, Mary, is the only child of the lunatic; that the lunatic is in a state of deplorable helplessness 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. ted to the next of kin or heir at law. 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 |