Penington ex rel. Thompson v. Thompson , 5 Del. Ch. 328 ( 1880 )

The Chancellor.

In the case of Gorham v. Gorham, 3 Barb. Ch. 24, Chancellor Walworth—referring to the cases of Palmer v. Parkhust, 1 Ch. Cas. 112; Ortley v. Messere. 7 Johns. Ch. 139; Palmer v. Woolrich, 1 Ch. Cas. 153; Fuller v. Lance. Id. 19, and note; Clerk v. Clerk, 2 Vern. 412; Addison v. Dawson, 2 Vern. 678 ; and Ridler v. Ridler, 1 Eq. Cas. Abr. 279—says : “ The result of these several decisions was that where the object of 'the bill was to set aside the act or deed of the lunatic, upon the ground of his mental incapacity at the time the act was done or the deed was executed, the bill might be filed by the committee or the attorney general alone, or by joining the lunatic with the committee, or with the attorney general when there was no committee, or when the interest of the committee was adverse to that of the lunatic. And the practice in England ever since that time appears to have been either to join the committee with the lunatic in bringing suits for his benefit, or to file the bill in the name of the lunatic by his committee.” The words, “ by joining the lunatic with the committee, or wit-lithe attorney general when there was no committee, or when the interest of the committee was adverse to that of the lunatic,” seem to exclude the attorney general from being a party in the cases where lunatics have committees, except when the interest of the committee may be adverse to that of the lunatic, but leave untouched the question whether the attorney general can be a party in any other case; as, for instance, where in fact a person may be a lunatic, although not found such by inquisition. Lord Eedesdale says: “ Idiots and lunatics sue by the committees of their estates; and where their interests clash with those of their committees, the attorney general files an information in their' behalf.” He also says that the attorney general is the proper person to institute a suit for one who has been found a lunatic and where no committee has been appointed ; but the - remark suggests the question whether the attorney general is such proper person for the want of the committee where one has not been found to be a lunatic. In fact all the text writers, supported by the judicial decisions, say that idiots and lunatics must sue in courts of equity by the committees of their estates, and such doubtless is the case where committees exist. I shall assume it as true, as equally settled, that where the fact of lunacy has been found and no committee of the lunatic has been appointed the attorney general may file an information in his "behalf.

In the present case John Thompson has not been found by inquisition an idiot, lunatic, or non compos mentis. He cannot therefore sue by a committee, for he has none. The attorney general cannot interpose because his interest clashes with that of his committee,'for the like reason that he has no committee. He cannot interpose because he has no committee, as for one found to be a lunatic and having no committee, for he has never been found by inquisition to be a lunatic. If the attorney general was authorized to exhibit the information in this cause, it must be for the reason that he has, by virtue of his office, the power to appear as the representative of anyone as a lunatic, solely upon the relation of a third party who chooses to assume the office of relator. Does such authority exist in the attorney general ? Ho adjudged case on this precise point has been cited, and I have been able to find no such case. It is said that the King of England, as parens patries, has the care of idiots and lunatics; ■and that he is represented in the exercise of this care in chancery by his attorney general; and that this State is to be regarded as sustaining the same relation to this unfortunate •class of persons within its limits ; and that in this court, with respect to such persons, the State is represented in like manner by its attorney general. The immediate question before me "is, Can an information on the part of the attorney general at the relation of some of the children of John Thompson be regarded as the proper mode for obtaining the redress sought, namely: a decree declaring the deed from him to his son void ? This question was argued mainly, assuming for the purpose ■of the argument that Thompson was a lunatic, or at least a person incapable of the management of himself and estate, •and properly comprehending the nature and character of his acts at the time of the execution of the deed; it being contended on behalf of the relators that, if such was his situation • at that time, an information by the attorney general was the proper mode of procedure, and on the part of the defendants "that under the laws of this State the attorney general has no ■authority to exhibit an information in behalf of a lunatic to ■annul his acts; and that, before such acts can be declared void by a decree of this court, it is absolutely necessary that the party should be found a lunatic under an inquisition by proceedings in lunacy.

Mitford (p. T) says: “ A suit to the extraordinary jurisdiction of the Court of Chancery, on behalf of a subject merely, is commenced by preferring a bill, in the nature of a petition, to the Lord Chancellor, Lord Keeper, or Lords Commissioners for the Custody of the Great Seal, or to the King himself in his Court of Chancery in case the person holding the Seal is a party, or the Seal is in the king’s hands. But if the suit is instituted on behalf of the Crown, or of those who partake of its prerogative, or whose rights are under its particular protection as the objects of a public charity, the matter ■of complaint is offered to the court by way of information .given by the proper officer, and not by way of petition.”

The duties of the attorney general in this State are not. particularly defined either in the Constitution or the laws, except in a very few instances having no relation to matters, similar to that under consideration. It may be assumed, however, that it is his duty to prosecute and defend all suits-in the results of which the people of the State are concerned..

On page 24 Mitford says: “ Bodies politic and corporate, and all persons of full age not being feme covert, idiot, ur lunatic, may by themselves alone exhibit a bill.” Again “ Those, therefore, who are incapable of- exhibiting a bill by ' themselves alone are (1) infants, (2) married women, except a. wife of an exile or of one who has abjured the realm, (3)- . idiots and lunatics.” Again (p. 29) he remarks: “ The-care and commitment of the persons and estates of idiots and lunatics are the prerogative of the Crown, and are always-entrusted to the person holding the Great Seal, by the royal, sign manual. By virtue- of this authority, upon inquisition finding any person an idiot or a lunatic, grants of the custody of the person and estate of the idiot or lunatic are made to-such persons as the Lord Chancellor, or Lord Keeper, or ' Lords Commissioners for the Custody of the Great Seal for-the time being, think proper. Idiots and lunatics, therefore,, she by the committees of their estates.” "

The cases referred to in support of this last" proposition are 1 Ch. Cas. 19, which is found at the bottom of the case: of Fuller v. Lance, relating to a bankrupt; and the whole of which is as follows : “ Note, that where committees of a-lunatic sue for anything in the right of a lunatic, in such case-the committee as well as the lunatic are made parties;” and the case of Ridler v. Ridler, 1 Eq. Cas. Abr. 379, which was-by bill brought by a lunatic and his committee to set aside a settlement which had been obtained from him by the defendant before the issuing of the commission of lunacy, but subsequent to the time wherein, by the commission, he was found to have been a lunatic; the defendant demurred to the bill, because, as he contended, a person should not be admitted to-certify himself, for that during the continuance of the lunacy he cannot be supposed to know what he did. The demurrer was overruled, the Lord Chancellor remarking that the “ rule was to be understood, of acts done by the lunatic to the prejudice of others, that he should not be admitted to excuse himself on the pretense of lunacy, but not as to acts done by him to the prejudice of himself; besides, here the committee is likewise plaintiff, and the several charges of lunacy are by him in behalf of the lunatic; and it has been always held that the defendant must answer in that case.”

Although idiots and lunatics sue by the committees of their estates, Mitford further remarks that “ Sometimes, indeed, informations have been exhibited by the attorney general on behalf both of idiots and lunatics, considering them as under the peculiar protection of the Crown, and particularly if the interests of the committee have clashed with those of the lunatic;” and he refers to the cases of Palmer v. Parkhust, 1 Ch. Cas. 112 ; Palmer v. Woolrich, Id. 153 ; and Attorney General v. Panther, 2 Dick. 748. Does Mitford mean to say that where one has been found a lunatic and has a committee, the attorney general may proceed in his behalf by information ? If the committee has a right to sue in behalf of a lunatic, is not the right exclusive ? Why in such a case should the attorney general be allowed to proceed by information in his behalf except where the proceedings should be in his behalf against his committee, or where, as Mitford expresses it, “ the interests of the committee have clashed with those of the lunatic? ”

In the first case cited by Mitford (Attorney General v. Parkhust, 1 Ch. Cas. 112), although it appears that Smith had been found a lunatic and had lucid intervals, it does not appear whether he had or had not a committee either of his person or estate. If, however, he had a committee—which may have been the case, considering the objection made at the hearing, which was “ that in case of a lunatic (where the King hath no interest in his estate, but as parens patria} commits him to another to manage it for him, the lunatic in case he recovers his senses and wits shall have his estate again, and if not it will go to Ms administrators) the lunatic himself (as in the case of an infant) ought to have been a party ”—we may discover the reason why in that case the proceeding was in the name of the attorney general, from the note in the margin; which is that generally a lunatic ought to be made a party, but the reason why it was overruled here was that he might stultify himself. We shall hereafter see that this supposed rule, enlarged upon in Beverley's Case, 4 Coke, 568, and in the earlier cases in respect to lunatics, has "long since been exploded, and has in this relation no existence anywhere.

In the second case cited by Mitford, of Palmer v. Woolrich, 1 Ch. Cas. 153, the demurrer for that the lunatic was no party was sustained, and a distinction was drawn between that case and the case against Parkhust in this: that to allow the lunatic to have been a party in the latter case would have been to enable him to stultify himself; whereas, no such consequence would result from- his being a party in the former case. In the case against Woolrich it is not stated whether the lunatic had a committee, nor that he had been so found by inquisition; but as generally a lunatic is one found to be such, it may be reasonable to presume that the lunatic had a committee. I have not had access to the case referred to in 3 Bro. P. C.

It will thus be seen, in the language of Chancellor Walworth in the case of Gorham v. Gorham, 3 Barb. Ch. 32, that it was not intended in the case of Palmer v. Parkhust, 1 Ch. Cas. 112, to decide that the attorney general or the committee could file an information or a bill for the benefit of a lunatic in all cases without joining the lunatic himself as a party; for in the case of Palmer v. Woolrich, 1 Ch. Cas. 153, which was decided in the next year by the same Lord Keeper, he allowed a demurrer to a bill filed by the attorney general for the benefit of a lunatic, upon the ground that the lunatic was not a party, the bill in that case not being brought for the purpose of avoiding any act done by the lunatic after the loss of his reason. This latter decision was in conformity with the note at the end of the report of the case of Fuller v. Lance, 1 Ch. Cas. 19. See also the cases of Clerk v. Clerk, 2 Vern. 412, and Addison v. Dawson, Id. 678. The case, of Ridler v. Ridler, before referred to, to the like effect, was subsequently decided by Lord Chancellor King. It will be observed that in none of these cases cited by Mitford was the question raised as to the power of the attorney general to file an information in behalf of the lunatic, but only the question, in those cases where the attorney general was a party, as to whether the lunatic or his committee should also be a party. We do not know as a matter of fact whether the lunatics in those cases had a committee. The reports of the cases are silent in respect to this matter. IJpon the supposition that they had such committees, the appearance of the attorney general therein would conflict with the text of Mitford, “ that idiots and lunatics sue by the committee of . their estates.”

In the case of Attorney General v. Panther, “ the committee of the lunatic, and the executors of her late husband, and who had possessed her property given for her separate use, under a deed executed in her lunacy” (2 Dick. 748, and cited by Mitford (p. 49) as a case in particular where an information was exhibited by the attorney general because the interests of the committee clashed with those of the lunatic), the right of the attorney general to file the bill, although not affirmed or denied, or any question raised in respect thereto, seems to have been recognized, because an issue was directed to say whether the party was a lunatic at the time she executed the appointment under which the executors of her husband claimed. A very good reason may have suggested itself to Lord Chancellor Thurlow why the attorney general in that case should have been allowed to file the bill, namely: that the lunatic having been found such, and the proceeding being in part against her committee, she could not be represented by any other party while her committee was continued. I apprehend at the present day, however, under the same circumstances it would be proper to dismiss the committee and appoint a new one. It is further remarked by Mitford, as we have seen, that such an information has been filed where a person found a lunatic has had no committee, for which he cites the cases of Attorney General on behalf of Maria Lepine, a lunatic, at the relation of John Fox; and also Maria Lepine against Earl and Oountess Howe and others, the name of the reporter not being given. The reason why an information in such case may be filed by the attorney general doubtless is, there being no committee for the lunatic, and the lunacy having been found by inquisition, and the lunatic thereby being made a ward of the court, and under the protection of the State as one incapable of self-protectian, the attorney general, representing the State as its law' officer, might well see that its protection should be in such a case afforded. It was decided in the case of Ortley v. Messere, 7 Johns. Ch. 139, that a lunatic is not a necessary party plaintiff with his committee on a bill to set aside an act done by the lunatic under mental imbecility, though it is the general practice to join them,'Chancellor Kent remarking that “ There does not appear to be any use in it, as the6 com mittee has the exclusive custody and control of the estate and rights of the lunatic. The lunatic may be considered as a party by his committee; and, like trustees of an insolvent debtor, the committee holds the estate in trust under the direction of this court.”

J. S., by inquisition, was, the 23d of June, 1664, found a lunatic with the retrospect of seventeen years ; it was likewise found that he assigned a debt sufficiently secured to him for the purchase of a certain manor ; and on a bill brought in his behalf by the attorney general, Justice Tyrril held that he ought to be relieved; and of the same opinion was the Lord Keeper on a rehearing, and said that it was not necessary that the lunatic should be a party, but gave the defendant leave to traverse the inquisition. 1 Eq. Gas. Abr. 278.

Shelford on Lunacy, 415, says: “ Idiots and lunatics must sue in courts of equity by the committees of their estates, and in such suits the committees, as well as the lunatics, should be parties; and if a lunatic is not named a party in a bill or information in his behalf, it is a good cause of demurrer. -Sometimes, indeed, informations have been exhibited by the attorney general on behalf both of idiots and lunatics, considering them as under the peculiar protection of the Crown, and particularly if the interest of the committee has clashed with that of the lunatic.” The remarks of Mr. Justice Story, in his work on Equity Pleading, § 64, are to the same effect. Indeed, all the text writers follow Mitford. I take it, however, to be settled law, as stated by Story, that in all cases in equity where idiots and lunatics are parties plaintiff, they, having committees, or, as with us, trustees, must sue by the committees ■or trustees of their estate ; and that there is no exception to this rule unless in cases where the interests of the committee have clashed or may clash with the interests of the idiots •or lunatics. Ho case was cited in the argument of this cause, and I have been able to find none in the modern practice of the Court of Chancery in England or in the practice of the -courts of chancery in this country, where it has been distinctly stated that an information by the attorney general was filed in behalf of a lunatic or idiot not found to be such. All the text writers not only follow Mitford, but refer to the same cases to which he refers. These cases I have commented upon, and if any of them be an exception to the general principle stated both by Mitford and Story, “ that idiots and lunatics must sue by the committee or committees of their estates,” the ■exception has not been followed or recognized in modern practice.

There is a significant remark, and one which perhaps may ",be worthy of consideration in the present case, to be found in the case of Palmer v. Woolrich, 1 Ch. Cas. 153,, and it is this : “ And the alienation of a non compos mentis as well as of an idiot, being found by office, shall be avoided;” and Shelford on Lunacy, 260, says: “It.has been already shown that an inquisition of lunacy is not conclusive as to third parties claiming under instruments previously executed by the lunatic; and the King, before the inquisition, cannot avoid the alienation of an idiot or lunatic, but afterwards a scirefacias may be sued out at the suit of the Crown against the: person in possession or the alienee of a lunatic’s estate, which writ may be traversed.”

In England the attorney general, proceeding by information, is a party to the suit; he represents the King. When he proceeds in this State by information he is a party to the-suit; he represents the State. In the case of Attorney General v. Ironmongers Co. 1 Craig & P. 218, counsel appeared for the relator, and the attorney general appeared for another-party in interest. The Master of the Polls said that he could only recognize the counsel for the relator as the counsel for-the attorney general, and could hear them only by his permission ; that the suit was so entirely under the control of the-attorney general that he might desire the court to dismiss the-information; and that if he stated that he did not sanction any proceeding, it would be instantly dropped. He held that; the attorney general ought not to be allowed to appear for-any other party than the informant. In this case the attorney general stated that he did not give his sanction to the scheme-of the relators ; and an appeal was taken to the Lord Chancellor by the attorney general and the trustees for the charity for which he appeared, when his lordship remarked that on>. an information the attorney general was a party prosecuting the cause, and was the only party whom the court could recognize in that character, and therefore that his lordship could not hear the attorney general against the relator or the re-, lator against the attorney general. How, in the present case the relators, it is true, are some of the children of John Thompson, and their husbands ; but a relator in such a case need not be a relative if the authority of the attorney general to file the information be solely that which is stated. It is said that the State is parens patria of idiots and lunatics, as the King-is parens patria of such persons in England. The attorney general in England represents the King in his courts, and if he can file an information there in respect to idiots and lunatics, it is because he represents the parens patria ; and if he can file an information here in respect to such persons is it not because he represents the State, which sustains the same relation in respect to this class of its people? Kow, if the King of England cannot avoid the alienation of a lunatic before the finding of lunacy by means of an information filed by his. attorney general, can the State of Delaware avoid such an alienation before lunacy is ascertained by inquisition ?

To present concisely and'in brief the views I have attempted to present, I remark: 1. That I consider it settled law that a person found to be a lunatic, and having a committee- or trustee, properly sues by such committee or trustee; and that the attorney general cannot be a party by information on-the relation of another or otherwise on behalf of such an one,, unless perhaps in a case where the interests of the committee and the lunatic clash. 2. Ko case has been cited in the argument, and I know of none in the modern practice of the English Court of Chancery or in this country, where the alienation of a person alleged to be a lunatic, but not found to be such, has been decreed to be void upon proceedings under an information filed by the attorney general upon the relation of anyone; but it does not follow that such an alienation may not be declared void in equity in a proceeding by a bill with proper parties, notwithstanding no inquisition of lunacy may have- been found. 3. Answer may be made in behalf of a lunatic not found to be such by a guardian appointed by the the court. If so, why may not a bill be filed in the name of a lunatic in fact, though not found to be such, by a responsible party as a next friend ?

I have been led to make these remarks, and into this discussion in respect to the power of the attorney general to file an information in cases of alleged lunacy and in respect to the proper parties in cases involving the consideration of lunacy generally, not because in the view which I take of this case the consideration of that subject was necessary to its proper decision, but because the argument of counsel was mainly directed to these questions. I have listened attentively to the reading of the depositions in this case, and I am of opinion ".that John Thompson was not and is not, in the proper meaning of those terms, a lunatic or an idiot. If he is not a person of sound mind, his mind may be enfeebled or nearly •destroyed' from old age, bodily infirmity, or other physical •causes. Whether such was in fact the state of his mind at the time of the execution of the deed to his son and daughter may not be wholly free from doubt in view of the directly •conflicting testimony of the witnesses.

A person who is non compos mentis is in the Statute Dé Prerogativa Regis described as one qui. prints habens me■moriam et intellectum non fuerit compos mentis suce. Lord 'Coke approved this definition, and in commenting upon it .says: “ Here Littleton explaineth a man of no sound memory to be non compos mentis. Many times, as here it appear•eth, the Latin word explaineth the true sense and calleth him not amens, demens, furiosus, lunaticus, fatuus, stultus, or "the like, for non compos mentis is most sure.” Imbecility is difficult of precise definition. It is most generally the result -of a gradual decline and decay, often attendant upon old age, ill health, or a long course of vicious indulgence. John 'Thompson, although not totally imbecile, may be such to an •extent as authorized him t.o be classed as one non compos mentis, and as such one who might be subject to the statutory jurisdiction of this court. But the interposition of this court under its statutory authority is not invoked, and was not necessary to be invoked, in the present case. In respect of persons of the class to which Thompson may belong, or rather in respect to certain acts done by or in respect to persons of such •class, the court of chancery will exercise jurisdiction independent of any given by statute. It is not, however, by reason of the incompetency, but notwithstanding the incompetency, that the court of chancery entertains proceedings in ■such cases. The prevention of fraud is peculiarly the subject of equity jurisdiction, and the authority to intervene for its prevention^ where it is attempted or exists, does not depend "upon the question whether the person in respect to whom ór in respect to whose rights of property it has been attempted is or is not of a sound mind. If the deed obtained from 'Thompson by his son was fraudulently obtained, or if the .grantor was mentally incompetent to make the grant, there •can be no doubt that power exists in this court so to declare, .and by its decree to annul and make of no effect the grant.

In Re Barker, 2 Johns. Ch. 232, the status of a person who from old age, sickness, or other cause becomes so weak ° and incapacitated in mind as to be unable to manage his affairs, and the authority of the court of chancery to award a commission in the nature of a writ de lunático inquirendo, were very fully discussed and ably considered by the chancellor, and the conclusion arrived at was that the authority existed. Formerly it was considered by the English Court of Chancery that the mere imbecility of mind not amounting to lunacy was not sufficient to authorize the court to interfere with the liberty of the subject over his person -and property, and in the time of Lord Hardwicke it seems to have been understood that there was no specific relief for the ■case of incapacity from mere weakness of mind. A departure from this strictly technical rule occurred subsequent to the time of Lord Hardwicke ; and Lord Eldon, in a case reported in 6 Ves. 273, remarked that evidence nnay support a •commission, not of lunacy, but in the nature of a writ de lu■natico inquirendo, in which he says it must be remembered that it is not necessary to establish lunacy, but it is sufficient that a party is incapable of managing his own affairs. In Ridgeway v. Darwin, 8 Ves. 65, Lord Eldon observed that in Lord Hardwicke’s time commissions of lunacy were not .granted to the extent to which they have been since granted; .and that he found when he came into the court a course of •cases establishing its authority where the party was not absolutely insane, but was unable to act with any proper and provident management, and was liable to be robbed by anyone, under that imbecility of mind calling for as much protection ;as absolute insanity. Lord Eldon considered such persons as ■embraced in that large class of cases mentioned by Lord Coke, • of persons non compos if their understandings had been destrayed by surviving the period that Providence had assigned to the stability of the mind ;• and in the opinion of Lord' Erskine the question in such cases was whether the party had become mentally incapable of managing his affairs. Chancellor-Kent, in Re Barber, before referred to, after referring to this-change in the practice of the English Court of Chancery, remarks : “ I am satisfied that these later decisions are not only founded in good sense and the necessity of the case, but are a- ° sound exposition of the common law which-gave to the Kingaspa/renspatriae the care and custody of all persons who had lost their intellects and become non compos or incompetent to take care of themselves. Beverley’s Case, 4 Coke,. 127, 128,. 576,-578 ; 1 Bl. Com. 304. All the cases agree that the Statute of 17 Edw. II., committing the care of persons and estates-of idiots and lunatics, -was not introductory of a new right,, but only went to regulate a right pre-existing in the Crown. 4-Coke, 126 ; Amb. 707; 2 Ves. Jr. 71, 75. I should feel that I had but very imperfectly discharged my trust if I was the-means of crippling'the jurisdiction of this court by confining it- to the strict common-law writ of lunacy. A numerous class of persons whose minds have sunk under the power of disease- or the weight of age would in that case be left without protection and liable to become the victims of folly or'fraud. This-would be a blemish on the jurisprudence of the country.”

In Owings’ Case, 1 Bland, Ch. 290, it was decided that a person who is actually non compos mentis,, but. who has not been found to be so under a writ - de lunático vngwvrendo, may be-permitted to sue as a coplaintiff -with another wdio may be-treated as his committee and.required to give bond to account-for any money directed to be paid to him for the use of the-lunatic. In this case Chancellor Bland remarked: “Generally and technically speaking, those only are called lunatics who-have been so found and returned. Without an inquest and return thereon no one can be judicially treated as a lunatic, and be.debarred of his liberty or have the management of his-property taken from him. The power to devest a citizen of his personal freedom and of his property is one of a most extraordinary and delicate nature; and should, therefore, never be exercised without observing every precaution required by the law. But, although this court will, in no case, undertake to go all lengths, and to confine or dispose of the person of any■one, as a lunatic, until he has, upon solemn inquisition, been found to' be non compos mentis; yet it will grant relief and protection to such persons without and previous to their being .adjudged to be non compos. On a proper application, the .granting of a writ de lv/natico inquirendo is generally a matter -of course ; but still it is discretionary. If the chancellor sees that the interests of the subject of it may be promoted or his health benefited by withholding or suspending it, he may do so. The object of the chancellor’s authority in matters of lunacy is to protect and take care of citizens who are intellectually unfortunate ; hence, it has been always so exercised as most ■effectually to attain that object. If the execution of a commission of lunacy would in all probability have a tendency to •confirm the lunatic in his insanity; or if his estate or income is too small to defray the expense of its execution; or if the •object in view may be attained as safely and as fully in all respects without it; the execution of the inquisition may be : suspended or dispensed with altogether. In short, there are many instances in which the court will recognize and act upon the fact that a person is in a partial or complete state of insanity, without requiring that fact to be established by a return to :a writ de lunat/ico inquirendo. I am of opinion that this may be considered as one of those instances.” In this case John •Cromwell and wife were united as coplaintiffs with Rebecca Owings, the person alleged to be a lunatic, and who it appears was of unsound mind, although not having previously been •declared such. The bill was filed to recover an annual sum •of money given to Rebecca by the will of her father, and the money was decreed to be paid to the said John Cromwell for the use of the said Rebecca—he and his wife being appointed in the decree trustees of her property.

Row, assuming,-for the purposes'of the discussion, that John Thompson, at the time of the- execution of the deed which is sought to be avoided by this proceeding, was a person whose mind had become worn out from old age, or that his mind had become so enfeebled from old age, bodily infirmity or other causes that he was incapable at that time of" comprehending intelligently the nature, character and consequences of the act he was doing, what is the proper mode- and who are the proper parties to the necessary proceedings-for avoiding his act ? Mitford, on page 30, says: “ Persons, incapable of acting for themselves, though not idiots or lunatics, have been permitted to sue by their next friend without the intervention of the attorney general.” On page 54-of the third American edition, in a note, the same remark is-' made, and it is added that Chancellor Thurlow said: “He-was not against the practice of finding a man a lunatic who was by the infirmities of age unequal to the management of" his affairs. But the more usual course in the English Court is to appoint him a guardian in the receiving and managing-his property.” In this State where, by Act of the General Assembly, the court of chancery has the care of insane persons above the age of twenty-one years, so far as to appoint, trustees to take charge of them and manage their estates ; and where the words “ insane person ” are declared by the Code-to include every idiot, non compos, and lunatic person,—a. commission of lunacy may issue in respect to those persons-who have lost their memory and understanding by sickness,, grief, or other accident, or by extreme old age, although such, persons are not lunatics within the legal meaning of the term,, not being persons who sometimes have understanding and. sometimes have not. I apprehend, however, that although desirable it is not absolutely necessary that a writ of insanity should issue in respect to such persons, in order that acts done-by them may be declared void by a judicial decree. It is true that the writ of insanity when issued commands the sheriff to inquire by a jury not only whether the party is insane, but, if so, from what time he has been insane, and whether during that period he aliened any lands, etc. Yet the universal doctrine now is that the proceedings on the inquisition and finding, although evidence, are not conclusive, but may be traversed ; and that any person whose interests-are affected thereby may be permitted to prove (when the question of sanity or insanity arises in any proceeding to avoid the acts of the lunatic or insane person) that such person was sane at the time of doing the act, notwithstanding the-finding of the inquisition.

The question recurs, how a person in the situation of John Thompson not found to be insane must sue in a court of equity. Shelford on Lunacy, 416, repeats the remark of Mitford hereinbefore cited: that persons incapable of acting-for themselves, though not lunatics or infants, have been permitted to sue by their next friend without the intervention of .the attorney general. Beall v. Smith, L. R. 9 Oh. App. Cas. 85, was a suit in chancery by a person of unsound mind, not-found so by inquisition, by his next friend. B having become-of unsound mind, his family applied to S, his agent, to render-accounts. S consulted his solicitors M and P, who in August, 1871, filed a bill in the name of B by a next friend, who was.. a stranger to the family, against S for an account. A receiver was appointed, and in December, 1871, without notice to the-family, the cause was heard as a short cause, and a decree made directing accounts and inquiries. In March, 1872, B was found lunatic, of which M and P had full notice. On the 8th of June, 1872, the chief clerk made his certificate, and on the 29th of June, 1872, the cause was heard on further-consideration, and an order made directing the costs of both parties, as between solicitor and client, to be paid out of the moneys in the hands of the receiver. In the accounts of the-receiver as passed were also included considerable sums for-his poundage and for the employment of an accountant to investigate the books. Some time after the order, on further-consideration, a committee was appointed on the lunacy. It-was held (varying the order of Wickens, V. (7.), on petition by thejunatic and his committee, that all the proceedings in the suit after the appointment of a receiver were unauthorized and improper, and that all proceedings after the finding: ■on the inquisition were irregular and void, and that M and P must make good to the lunatic’s estate the sums paid to the ¡accountant and the sums paid to themselves and the defend■ant’s solicitors for costs (less the costs up to the appointment of the receiver), and must pay the costs of the petition both before the vice-chancellor and the court of appeals, as between .solicitor and client.

It will be thus seen that the court of appeal, by allowing -the costs in the cause up to the appointment of a receiver, recognized that a suit by a person of unsound mind, not found so by inquisition, by next friend is a suit which may be properly instituted in chancery. Indeed Sir W. M. James, in deciding the appeal, remarked : “ The law of the court of chancery undoubtedly is that in certain cases where there is a person of unsound mind, not found so by inquisition, and therefore incapable of invoking the protection of the court, that protection may in proper cases, and if, and so far as may be, necessary, and proper, be invoked on his behalf by .any person as his next 'friend.” Again he remarks : “ It is to be borne in mind that unsoundness of mind gives the court -of chancery no jurisdiction whatever. It is not like infancy in that respect. The court of chancery is by law the guardian of infants whom it makes its wards. The court of chancery is not the curator either of the person or the estate of a person non compos mentis whom it does not and cannot make its ward. It is not by reason of the incompetency, but notwithstanding the incompetency, that the court of chancery •entertains the proceedings. It can no more take upon itself the management or disposition of a lunatic’s property than it can the management or disposition of the property of a person abroad or confined to his bed by illness. The court can •only exercise such equitable jurisdiction as it could under the .same circumstances have exercised at the suit of the person himself if of sound mind.” Then, after stating some cases— ■as, if there be trust property, or in case of partnership—with which the court might deal, he remarks: “ And perhaps the more common case of its interference is where the incompetent person by his next friend seeks to set aside instruments •or other gifts obtained by persons taking fraudulent advantage •of his mental weakness.”

Much was said in the argument in respect to the source of the jurisdiction of the court of chancery in England in respect •of lunatics and idiots. This subject is very briefly but satisfactorily treated of in Snell’s Principles of Equity, 3d ed. 353-356. The author says : “ The jurisdiction extends not only to idiots and lunatics properly so called, but also to all per.sons who from age or misfortune are incapable of managing their own affairs, and therefore are properly deemed of unsound mind or non compos mentis. The former is the statutory jurisdiction exercised by the Lord Chancellor and Lord ■Justices in lunacy; the latter the inherent jurisdiction of the court of chancery, exercised in appropriate cases notwithstanding the unsoundness of mind, for the protection of the property of the persons so circumstanced.” Snell remarks, page ■355, that “The recent case of Beall v. Smith affords a striking illustration of the several jurisdictions. There the plaintiff having become of unsound mind, a bill was filed in his name by a next friend, for the purpose of winding up the business in which he had been engaged; a receiver was appointed and decree directing accounts was taken. The plaintiff’s family were not consulted in the institution of the suit, and were opposed to its further prosecution. Nevertheless an order •on further consideration was made, and the costs of the suit taxed and paid out of the estate. Pending the suit, application was made in lunacy, and an inquisition having been issued, a committee was appointed of the plaintiff’s estate. It having then been discovered that further proceedings had been taken in the suit, a petition was presented by the lunatic and his committee for a declaration that the same were void ; and -on an appeal to the Lord Justices it was" ordered that all pro•ceedings in the suit, subsequent to the appointment of the receiver, should be set aside, with costs to be paid by the ■plaintiff’s solicitor,—the court expressing an opinion that all the proceedings after the inquisition were a gross contempt ■on the jurisdiction in lunacy.”

In the present case, if I should be of opinion that John Thompson was incompetent to execute the deed to his son at the time it was executed, and that the present proceeding has been properly instituted, and should grant the prayer of the information, I should do so, not under the statutory jurisdiction of the court of chancery in respect to insane persons to appoint a trustee to have the care of the person and estate of such person, but in the exercise of the “ inherent-jurisdiction of the court of chancery exercised in appropriate-cases, notwithstanding the unsoundness of mind, for the protection of the property of the person so circumstanced.” The-idea, if it exists, that a person of unsound mind, not found so by inquisition, cannot by a next friend invoke the interference of a court of chancery “ to set aside instruments or-other gifts obtained by persons taking fraudulent advantage of his mental weakness,” must be owing to the old notion on the subject of a person not being permitted to disable or stultify himself. We have already seen that this maxim, at one time so fixedly adhered to, is no longer adhered to—to the extent that it once was. “The true and only rational exposition,”' says Story (1 Story, Eq. § 226),“of the maxim-—which has been adopted by courts of equity—is that the maxim is to be understood of acts done by the lunatic in prejudice of others, as to-which he shall not be permitted to excuse himself from civil responsibility on the pretense of lunacy; and it is not to be understood of acts done to the prejudice of himself, for this can have no foundation in reason and natural justice.” I presume, also, that the opinion formerly entertained, as it would appear in some of the earlier decisions, that the attorney general must be a party in cases instituted in behalf of persons of' unsound mind, and even of lunatics, without joining the lunatic or his committee, was the result of a too strict adherence to this-much-boasted but greatly modified maxim. We have already seen, in Owings’ Case, 1 Bland, Ch. 293, 295, that a lunatic, not so found, may, under circumstances, come in with other-persons as coplaintiffs, who may be appointed to receive the-relief as her trustees ; and in Owings’ Case, 1 Bland, Ch. 373,,. 375, it was decided that the person and property of one in dotage, though not declared a lunatic, may be protected by the court; and that, too, in the case where the plaintiff alleged in her bill that she was then more than eighty-four years of age, and at a time when she was in a condition of extreme ill health, and altogether deprived of the proper use of her mental faculties, the defendant had fraudulently caused her to execute and deliver a deed which purported to be a conveyance from the plaintiff of all her real and personal estate to the defendant. The suit which had been instituted in the name of the plaintiff, a person in her dotage, having been dismissed by her under the influence of the defendant, it was reinstated and directed to be thenceforth prosecuted by her solicitor for her benefit, and the deed was ordered to be brought into court to be canceled and annulled, and the same was declared to be null and void. I have already quoted at large from the case of Beall v. Smith, L. R. 9 Ch. App. Cas. 85, which is an authority in point, that a suit by a person of unsound mind, not found so by inquisition, may be brought in chancery by such person by next friend, in which it was remarked by the Lord Justice that the more common case of the interference of the court of chancery in behalf of such persons “ is where the incompetent person by his next-friend seeks to set aside instruments or other gifts obtained by persons taking fraudulent advantage of his mental weakness.”

In Re Gordon, L. R. 10 Ch. App. Cas. 192, the statement is: a gentleman made a settlement of nearly the whole of his property in trust for himself for life, and then for four of his five children and their issue. About two years afterward he was found lunatic. A son who took no benefit under the settlement desired to have it impeached, and adduced evidence showing that there was reasonable ground for contending that the settlor was of unsound mind when he executed it. The income of the lunatic was amply sufficient for his wants. It was held that no proceedings ought to be directed at the expense of the lunatic’s estate, but that the excluded son ought to he allowed to file a bill as next friend of the lunatic, without giving security for costs, to impeach the settlement. In this case the solicitors for the excluded son asked that a bill might be filed to set aside the deed, or a bill to perpetuate testimony in respect to the settlor’s state of mind at the time of its execution. Their lordships declined to give any directions for trying the validity of the settlement at the expense of the estate, but considered that, as a case was made showing that there was reasonable ground for impeaching it, any person interested in doing so ought to be allowed to impeach it at his own risk,, which their lordships considered a more proper mode of proceeding than a bill to perpetuate testimony. Leave was accordingly given to the son to file a bill as next friend of the lunatic, to impeach the settlement; their lordships intimating their opinion that the committee ■ of the estate must be a formal defendant, but ought not to take any part in the contest. See L. E. 6'Oh. 416.

In the case of Jones v. Lloyd, L. R. 18 Eq. Cas. 265, a bill was filed by a next friend, on behalf of a person of unsound mind, not found so by inquisition, against the partner in business of the plaintiff, alleging that the plaintiff had for some time past been suffering from softening of the brain, and was of unsound mind, and that it would be for his benefit that the partnership should be dissolved, and praying that the partnership might be dissolved and accounts taken, and the share of the plaintiff in the assets secured for his benefit, and for a receiver. It was held on demurrer that the suit could be maintained, the Master of the Eolls, Sir Gr. Jesse!, remarking that he thought such a bill could be filed, and that it was within the authorities. He said: “ I take it to be settled law—and when I say I take it to be settled law I am using the very words that were used by the vice-chancellor—that the insane partner has a right to come into this court of course, in a proper case, to have the partnership dissolved. That, then, being his right, can it be exercised ? That is, can a suit * be instituted by the lunatic, not found so by inquisition, by his next friend ? I have no doubt it can.” The Master of the Rolls, after remarking that there was authority upon the subject, and that it seemed so distinct to him that he had no occasion really to refer to the reason, and after citing the cases of Light v. Light, 25 Beav. 248, and Beall v. Smith, L. R. 9 Ch. App. Cas. 85, and the unreported case of Fisher v. Melles, L. R. 18 Eq. Cas. 268, note, where he said he knew the point was discussed,—did proceed to argue the propriety and necessity from the reason of the thing. He then proceeded: “ But how stands it on authority ? In the case of Light v. Light the exact point came before my predecessor, and he decided, in a case of trust, such a bill could be filed by a lunatic not so found by inquisition, by his next friend. I find in the books of practice the proposition so laid down in the widest sense. But the question came before the Lord Justices recently in the case of Beall v. Smith, which was cited to me by the defendants’ counsel, and what do they say ? Lord Justice James says this: c The law of the court of chancery undoubtedly is that in certain cases where there is a person of unsound mind, not found so by inquisition, and therefore incapable of invoking the protection of the court, that protection may in proper cases, and if, and so far as may be, necessary and proper, be invoked on his behalf by any person as next friend ’,” etc. I have already .quoted from the opinion delivered in the case of Bead v. Smith, and now emphasize that portion of it as particularly applicable to this case, wherein Lord Justice James, speaking of the action of the court of chancery, says : “ And perhaps the more common case of its interference is where the incompetent person by his next friend seeks to set aside instruments or other gifts obtained by persons taking fraudulent advantage of his mental weakness.” It will be observed that in none of these cases was it even suggested, either in argument of counsel or in the opinion of the court, that the proceeding should or could be by information by the attorney general. I consider it unnecessary to load this opinion with a further citation of authorities or to enter into a discussion of the reasons which support them.

The conclusion to which I have come in this case—assuming, for the purpose of the consideration of the question, that John Thompson was a person of unsound mind not found so by inquisition—is that the information exhibited by the attorney general for the purpose of having a decree by this court to cancel, annul, and make void the deed executed by Thompson to his son and daughter, is not a proper proceeding; but that the proper proceeding for such purpose, if said John Thompson was at the time of the execution of said deed a person of unsound mind, not found so by inquisition, would be by bill by said John Thompson by his next friend.

The injunction heretofore awarded in this cause must therefore be dissolved and the information be dismissed, unless the form of proceeding be changed from an information in the name of the attorney general of the State to a bill in the name of John Thompson by his next friend. [See following case.]