Penington ex rel. Thompson v. Thompson

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

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

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.”

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

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

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

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 com

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

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

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

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

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

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 de

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 ex

Row, assuming,-for the purposes'of the discussion, that John Thompson, at the time of the- execution of the deed

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:

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

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 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

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

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.]