Gambar halaman

signment, and the acceptance of the sub-tenant by the landlord with the intent to substitute him in the place of the original lessee. The case of Thomas v. Cook, 2 B. & Ald. 119, sanctions the rule that a surrender in law will be implied or raised up from the facts that a tenant has put a third person in possession of the demised premises, and that such third person has been accepted as tenant with the assent of the original tenant; but this case was criticised strongly in Lyon v. Reed, 13 M. & W. 285. The court, in the principal case, says: 66 To ascribe the effect of a surrender to the mere act of the landlord accepting the assignee as his tenant, and receiving rent from him, would be going beyond the precedents. To warrant the inference that the original lease has been annulled the facts ought to be of an entirely conclusive character." See, also, Mills v. Auriol, 1 Smith's L. C. (Phil. ed. Hare & Wallace's notes) 1239, where it is said by Lord Kenyon that "It is extremely clear that a person who enters into an express covenant in a lease continues liable on his covenant notwithstanding the lease be assigned over. If the lessee assign over his lease and the lessor accept the assignee as his lessee, either tacitly or expressly, it appears from the authorities that the action of debt will not lie against the original lessee, but all those cases with one voice declare that if there be an express covenant, the obligation on such covenant still continues." See, also, Griffith v. Hodges, 1 C. & P. 419; Talbot v. Whipple, 14 Allen, 180; Stobie v. Dills, 62 Ill. 432; Baker v. Pratt, 15 id. 568; Hegeman v. McArthur, 1 E. D. Smith, 147; Dodd v. Acklom, 6 Mann. & Gr. 673; Grimman v. Legge, 8 B. & C. 324.

In Stanley v. Chamberlin, 39 N. J. Law, 565, the agent of plaintiff, who was the owner of real estate, rented the premises to the defendant, knowing that he intended to use them for gaming purposes. Plaintiff had no actual knowledge of the intended use. In an action for the rent the defense set up was that the renting was for an unlawful purpose. The court held that the knowledge of the agent was not to be imputed in this case to the principal, and that plaintiff was entitled to disown the agent's contract and to recover on a quantum valebat for the use of the premises. The general rule is well established, that knowledge of the agent is knowledge of the principal, and that the principal must be charged with a notice of such facts as are communicated to the agent in the particular employment which has been committed to him. Cornfoot v. Fowke, 6 M. & W. 358; Cooper v. Slade, 6 H. of L. Cas. 793. And in Dresser v. Norwood, 10 Jur. (N. S.), it is held that the principal is affected by the knowledge of his agent acquired in transactions other than those belonging to his agency. See, also, Hern v. Nichols, 1 Salk. 289, where a merchant employed a factor to sell silk for him, and the factor sold one sort of silk for another, and the doubt was whether this deceit could charge the merchant. Holt, C. J., was of the opinion that the merchant was answerable for the deceit of his factor, though not criminaliter yet civiliter, for,


seeing that somebody must lose by this deceit, it is more reasonable that he who employs the deceiver should be a loser than a stranger." But in every case where the doctrine of constructive notice is maintained, the knowledge of the agent has been imputed to the principal for the benefit of a third party, who has dealt with the agent in good faith. The court, in the case at bar, says that it can have no application here. "The plaintiff would not be responsible to the public by way of indictment, without showing an actual knowlege of the intended wrongful use of his premises, and, surely, the law will not impute turpitude to him, by charging him with a knowledge which he did not actually have, for the benefit of a defendant who sets up his own execution of such criminal design in his defense. See, also, on the general subject, Hill v. North, 34 Vt. 604; Lawrence v. Tucker, 7 Greenl. 795; Bracken v. Miller, 4 Watts & S. 102.

In Gokey v. Knapp, 44 Iowa, 32, it is held that where an agent for lending money lent it at usurious rates, he would not be presumed to have had the authority to make the loan upon such conditions, and that his act would not affect his principal. The rule in this case is supported by numerous authorities. In Dagnell v. Wigley, 11 East, 43, a bill of exchange was held not to be usurious, upon the ground that the person advancing the money received no more than legal interest. The person receiving more was a broker, who acted as agent between the parties. In Condit v. Baldwin, 21 N. Y. 219, an agent intrusted with money to invest at legal interest exacted a bonus for himself as a condition of making the loan, without the knowledge or authority of his principal, and the court held that this did not constitute usury in the principal, nor affect the security in his hands. The court says (following Bacon's Abr., title Mast. & Serv.): "If a master command his servant to do what is lawful and he do an unlawful act, the master shall not answer, but the servant for his own misbehavior, otherwise it would be within the power of every servant to subject his master to what penalties he pleased." See, also, Middleton v. Fowler, 1 Salk. 282; Commonwealth v. Frost, 5 Mass. 53. In Baxter v. Buck, 10 Vt. 548, an administratrix gave to her son to present to defendant for payment a note of $250. The son and defendant, without the knowledge of the administratrix, made an agreement whereby the time of payment was to be extended one year, at the usurious rate of twelve per cent. A new note was given for the principal sum, and another note to the son for the interest. The court held that the note for the principal was valid as between the administratrix and defendant, See, also, North v. Sergeant, 33 Barb. 350; Bell v. Day, 32 N. Y. 165. In the latter case only the dissenting opinions are given, but the court sustained the rule in Condit v. Baldwin. The Court of Errors and Appeals of New Jersey acknowledge the same rule in Muir v. Newark Sav. Inst., 16 N. J. Eq. 537, 539. See, also, Conover v.. Van Mater, 3 Green, 481; Rogers v. Buckingham, 33 Conn. 81; Hopkins v. Baker, 2 P. & H. 110. See, however, as favoring a different rule, Wilson v. Truman, 6 Mann. & Gr. 238; Bush v. Buckingham, 2 Ventris, 83; Buckley v. Guildbank, Cro. J.; Austin v. Harrington, 28 Vt. 130. But the current of authority is so strongly in favor of the doctrine of the principal case that it may be deemed established. Any other doctrine would open the door to numerous frauds.

RECOVERING MONEY PAID FOR TAXES entine, J., delivering the opinion of the court,


said: "A correct statement of the rule governing such cases as this would probably be as follows: a party an illegal demand with a full

HAT most violent of all presumptions: that "every

Iman knows the law," and the resulting maxim, Worledge of all the facts which render such de

that "ignorance of the law excuses no one," have led to many apparent hardships, not least of which is the rule that money paid for taxes illegally assessed cannot be recovered unless paid under compul


mand illegal, without an immediate and urgent necessity therefor, unless to release his person or property from detention, or to prevent an immediate seizure of the same, such payment must be deemed to be voluntary, and cannot be recovered in Detroit v. Martin, 34 Mich. 170, wherein it ap- making the payment, files a written protest, does not back; and the fact that the party, at the time of

An excellent illustration of this rule was afforded

make the payment involuntary."

peared that a tax was assessed on land under a statute afterward decided to be unconstitutional. Prior to such decision the owner paid the tax, under protest, to prevent a threatened sale. It was held that the payment was voluntary, and that the money could not be recovered back; and this conclusion was reached on the ground that a sale, under the circumstances, would not have constituted a cloud upon the title.

The Court of Appeals of New York have recently examined the question when money paid for taxes illegally assessed may be recovered back. Peyser v. Mayor, 16 Alb. L. J. 283. The court held that money paid upon an erroneous judgment, or tax levy which has been reversed after payment, may be recovered back provided the payment was involuntary, or under compulsion from coercion, either in fact or law. Among the instances of coercion in law the court included the levy of a tax, regular upon its face, which may be demanded and enforced in due course of law, by sale of the property of the one assessed. The levy or assessment must, however, be prima facie regular so as to furnish evidence of its own validity, for if the validity must be shown aliunde the action is maintainable. Folger, J., who delivered the opinion of the court, said:

"Coercion by law is where a court having jurisdiction of the person and the subject-matter has rendered a judgment which is collectible in due course. There the party cast in judgment may not resist the execution of it. His only remedy is to obtain a reversal, if he may, for error in it. As he cannot resist the execution of it when execution is attempted he may as well pay the amount at one time as at another and save the expense of delay. It may be well to say, that if the judgment is not afterward reversed, but is invalid for any collateral reason, or the process issued upon it is illegal, payment with knowledge of the fact would perhaps be voluntary, which seems a sound distinction taken by Emott, J., in Lott v. Sweezy, 29 Barb. 87--92."

In Wabaunsee Co. v. Walker, 8 Kans. 431, the plaintiff redeemed lands which had been sold for taxes, and was charged by the county treasurer interest on said taxes at the rate of fifty per cent per annum. Plaintiff paid the same under a written protest, claiming that the interest should have been only at the rate of twenty-five per cent. The court held that he could not recover the money so paid. Val

But in a subsequent case the same court, while affirming the foregoing rule, held that taxes paid under protest could be recovered back where the tax had been assessed, the time for its correction passed, and nothing remained to be done but to issue the warrant for its collection, which the statute required to be done. Kansas Pacific R. R. Co. v. Commissioners of Wyandotte Co., 16 Kans. 587.

In Massachusetts, in Boston Glass Co. v. Boston, 4 Metc. 181, it is held that "payment of taxes to a collector, who has a tax-bill and warrant in the form prescribed by law, is to be regarded as compulsory payment, and if such taxes were assessed without authority, they may be recovered back in an action for money had and received, although the party made no protest before payment." This case follows Preston v. Boston, 12 Pick. 7, where it is held, "if a person pay an illegal tax in order to prevent the issuing of a warrant of distress with which he is threatened, and which must issue, of course, unless the tax is paid, the payment is to be deemed compulsory, and not voluntary."

In Grim v. School District, 57 Penn. St. 434, it is said to be settled law, that "a party who, when threatened with a distress, pays an illegal tax under protest and notice of suit, may maintain an action to recover it back." See, also, Henry v. Horstick, 9 Watts, 412. In Allen v. Burlington, 45 Vt. 202, the court says: "If the plaintiff was constrained to pay the tax to save his property from distress, and to avoid a penalty and costs, it was not a voluntary payment." Babcock v. Granville, 44 Vt. 326; Henry v. Chester, 15 id. 460.

In Fellows v. School District, 39 Me. 559, a party was arrested for non-payment of a tax, promised to pay if released, was released and about a week after paid the tax and costs; this payment was held not to be voluntary; so in Gachet v. McCall, 50 Ala. 307, the owner of land which was advertised for sale for non-payment of taxes, promised the tax-collector that, if he would postpone the sale, he would pay the tax. The sale was postponed and the tax paid according to agreement, but under protest. Held, that the payment was voluntary and could not be recovered,

In Meek v. McClure, 49 Cal. 623, which was an action against a tax-collector to recover back money paid under protest for taxes alleged to have been not duly assessed-in this that the assessment made by the assessor had been irregularly and unlawfully increased by the board of equalizationthe court held that the money could not be recovered, because the protest was not sufficient to indicate to the defendant the grounds upon which the plaintiff claimed the demand to be illegal. Rhodes, J., delivering the opinion of the court, said: "It was held in Hayes v. Hogan, 5 Cal. 243; McMillan v. Richards, 9 id. 417; Falkner v. Hunt, 16 id. 167, and other cases in this court, that if money which is not legally due is exacted by means of duress or coercion, it may, if paid under protest, be recovered back. The purpose and effect of the protest is not satisfactorily defined in any of those cases. In one of them it is said that one purpose of the protest is to take from the payment its voluntary character; but it is manifest that it is involuntary only because of the coercion, the duress, or the undue advantage exercised or possessed by the party to whom the payment is made. If money is paid, under these circumstances, to a party for his own use, no protest is necessary in order to lay the foundation of an action. In most of the cases in which the effect of a protest is considered, the payment was made to a public officer; and the only purpose of the protest was to give the officer notice that the money was not legally due, and thus to enable the officer to protect himself the consequences of an


notion to recover the money back from him. The Und made no provision for pauper lunatics. Wheth

NDER the feudal system, the common law of

officer is thereby put on inquiry as to whether the money is legally due; and if he finds that the demand is illegal, he may protect himself by refusing to receive the money; or, if he finds that it is of doubtful legality, he may take the proper steps to avoid, or protect himself against responsibility. If the officer has notice of the matter which renders the demand illegal, another notice in the form of a protest would be useless; but if he has no knowledge of such matter, he ought not to be subjected to the costs and consequences of an action to recover money from him-and that, too, perhaps, after he has paid over the money in the usual course of official business-without notice from the party paying the money of the grounds upon which he claims that the demand is not legally due. Wherever a protest is essential, it is, therefore, necessary to state the grounds upon which the party paying the money claims that the demand is illegal. The statement of the precise amount which is claimed to be illegal, when a part of the demand is legal, is of but little moment, for that, as in this case, can readily be ascertained by the official to whom the money is paid, upon being informed of the ground upon which payment would be refused, except for

er they happened to belong to the class of villeins regardant, or villeins in gross, they appear to have been equally uncared for by the sovereign authority of the realm. Inasmuch, also, as they were simply base tenants, a people living in servitude to the lord of the soil, like the cattle upon it, the loss of mind in any one of them produced as little effect upon the legal status of things in the manor, as would the death or incapacity of any beast of burthen. Neither justice nor humanity toward men could be expected to spring from a system of predial servitude, which, reflecting its influences upon jurisprudence, left charity to flourish only in the bosom of the church. Laws were then made only for free men and freeholders, and paupers, whether sane or insane, had to find protection and sustenance whenever they could at the hands of private benevolence. See History of Lunacy Legislation, ante.

We seek in vain, therefore, for any general laws designating the duties of the State toward them as charitable objects. And it is perhaps as much from this cause as from the teachings of the church that sprang up the abundance of gifts to charitable uses in England.

the coercion or duress. In this case the defendant was not informed by the protest that the plaintiff claimed that the action of the board of equalization was void; and there was nothing in the assessment roll or other document which came to the hands of the defendant, as the tax-collector, which would impart notice to him that the action of the board of equalization in increasing the valuation of the plaintiff's property was void, because the order was made without any complaint having been filed before the board, stating that the valuation was too low. The protest, in our opinion, was not sufficient to entitle the plaintiff to maintain an action to recover back the amount paid on account of the increase of the valuation of the property.”

In Hendy v. Soule, Deady, 400, it was decided that when taxes are paid on the demand of an officer having authority to collect them by distraint, there is sufficient duress of the property to make payment involuntary.

In Jersey City v. Ricker, 20 Am. Rep. 386; 9 Vroom, 225, it was decided that when an assessment has been set aside by a court, one who has paid it, though voluntarily, may recover the money back. As to when money, voluntarily paid, may be recovered back, see Town of Ligonier v. Ackerman, 15 Am. Rep. 323; S. C., 46 Ind. 552, and note to Black v. Ward, 15 Am. Rep. 171; Chandler v. Sanger, 19 id. 367.

*The following is from advance sheets of Prof. Ordronaux's Commentaries on the Lunacy Laws of New York, and on the Judicial Aspects of Insanity at Common Law and in Equity, including Procedure, as expounded in England and the United States, now in the press of Mr. John D. Parsons, Jr.

But as soon as the element of property asserts its presence in the history of a class, we perceive the sensitiveness of the law to immediately secure it against waste or spoliation. Hence, in England, the king, as the sovereign lord of the domain, and assumed protector of all his subjects, as soon as he was judicially informed that any one possessed of lands and tenements was an idiot, claimed the right of a beneficial use therein to himself, in return for the protection afforded by him. "And, therefore," says Fitzherbert (de Nat. Brev. 232), “when the king is informed that one who hath lands or tenements is an idiot, and is a natural from his birth, the king may award his writ to the escheator or sheriff of the county where such idiot is to inquire thereof." The whole transaction seemed to turn as much upon the opportunity to increase the revenues of the crown, being in fact regium munus, as it did upon humanity to the idiot. For Lord Hardwicke, in Ex parte Southcote, Ambl. 111, observed that he could not find a single writ directed to the escheator to inquire of lunacy, because the escheator, being an officer of the crown, in cases of lunacy where no profits go to the crown, the writ was never directed to him.

Previous to the passage of the statute "de prerogativa regis (17 Edw. 2, ch. 10) the custody of an idiot and of his lands was vested in the lord of the fee. Fleta, Lib. 1, ch. 11, § 10. And it is probable that the number of these persons may have been great enough to give rise to the necessity of extending a more disinterested supervision over them, and their estates, than would be likely to happen at the hands of their immediate lord. The writer above cited says, in fact, that these trusts were much abused, an evident reason, therefore, for removing them from the grasp of private cupidity, and placing them under the immediate care of the crown. These would seem to be the causes in which originated the necessity for an intervention of the king's prerogative over lunatics, through his chancery, in the form of writs of inquiry in cases of alleged mental incapacity.

Commissions of lunacy are proceedings of comparatively modern times. Originally they consisted of writs issued in chancery, of which only two forms were known, viz.: the writ" de idiota inquirendo et examinando," and the writ "dum fuit non compos mentis." Fitzherbert N. B. 202 and 232. The writ *de lunatico inquirendo" is of recent date, not being mentioned by Fitzherbert. It will be remembered that Lord Coke did not consider the word "lunatic" material as a term of definition, but included it in the general class of "non compos," of which he made four varieties. The term "lunatic" as a designation does not appear in any of the old writs, and Lord Hardwicke condemned its use as founded in error and superstition. Ex parte Barnsley, 3 Atk. 168. Even as late as his day, there were in England but two forms of writ for inquiring into the mental capacity of an alleged non compos, viz.: the writ de idiota inquirendo and the writ de lunatico inquirendo, and if the jury could not find that the party came within either of these classes, no committee could be appointed.

The manifest injustice of thus leaving many weakminded persons without the protection of a court of equity led to a relaxation of the former rule, and in Lord Eldon's day commissions began to be issued in cases where they would not previously have been granted. These were not technical commissions of lunacy, but commissions in the nature of writs de lunatico, where

in it was not necessary to establish lunacy, but simply that the party was of unsound mind and incapable of managing his affairs. Thus in Gibson v. Jeyes, 6 Vesey, 272, which was a case of imbecility, Lord Eldon observed that it was a question "whether this case might not support a commission, not of lunacy, but in the nature of a writ de lunatico, in which, it must be remembered, it is not necessary to establish lunacy, but it is sufficient that the party is incapable of managing his own affairs." And in another similar case this same high authority said that "a commission of lunacy is not confined to strict insanity, but is applied to cases of imbecility of mind, to the extent of incapacity from any cause, as disease, age or habitual intoxication. Ridgway v. Darwin, 8 Ves. 64.


Lord Erskine in Ex parte Cranmer, 12 Vesey, 445, reiterated the views expressed by Lord Eldon, and held that a commission of lunacy was applicable to incapacity from causes distinct from lunacy. It will be evident from these rulings how strongly the tide had turned since Lord Hardwicke in Ex parte Barnsley, 3 Atk. 169, A. D. 1744, decided that, although there might be mental incapacity in a party, still no return to the inquisition would be good which did not find the party of unsound mind. And the ground upon which he rested this ruling was, that while he was desirous of maintaining the prerogative of the crown in its just and proper limits, yet, at the same time, he must take care not to make a precedent of extending the authority of the crown, so as to restrain the liberty of the subject and his power over his own person and estate, further than the law would allow. In our own State, Chancellor Kent gave an early assent to the doctrine announced in the English decisions. And on a similar question coming before him, in the case of Barker, 2 Johns. Ch. 233, gave his entire approbation to the course pursued by Lords Eldon and Erskine. Barker was not a lunatic, nor yet an idiot, but a feeble-minded old man, incapacitated by advanced age for the management of his own affairs. A commission was accordingly issued and a finding of unsound mind returned. In referring to the duty of courts of equity to issue commissions in the nature of writs de lunatico, wherever there was a reasonable doubt of a party's capacity to manage his own affairs, the chancellor, while reviewing the English authorities, said:

"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.

[ocr errors]

And proceeding further to justify the issuing of com missions in cases of general mental incapacity without the presence of actual insanity, he observed: "It is evident that Barker is not a lunatic, within the legal meaning of the term. He is not a person who sometimes has understanding and sometimes not. He is,

rather, of that class described by Lord Coke as non compos mentis." Co. Litt. 246, b.

An inquisition may, therefore, be awarded for any cause which substantially incapacitates a party to manage his affairs. It matters not, therefore, whether the party be reduced to this condition by disease, or old age, or habitual intoxication. Ex parte Tracy, 1 Paige, 580.

Any thing which reduces the mental capacity of an individual to such a degree as to permanently unfit him to comprehend the nature and necessities of his own affairs; to take in the position which those affairs occupy to others, and the provision necessary to be made to secure himself against the ordinary risks and contingencies of business, may be said to render him, in contemplation of law, unfit to manage his affairs. Although not properly a lunatic, he is still in the eye of the law non compos mentis, and a proper subject for an inquisition of lunacy.

However probable may be the existence of the fact of lunacy, it must still be sufficiently well substantiated to satisfy the judgment of the court to which application for a commission is made, since the court cannot act on conjecture alone. Therefore, in Sherwood v. Sanderson, 19 Ves. 286, Lord Eldon observed that "before a commission issues, the duty of that person who has authority to issue it requires him to have evidence that the object of the commission is of unsound mind and incapable of managing his affairs, and for that purpose the evidence of medical men is generally produced."


When a case appears prima facie to be one of idiocy, lunacy, unsoundness of mind, or habitual drunkenness, the court will, in general, grant the application for a commission, though it is not by law compelled to do so. 2 Barb. Ch. Pr. 229. In Ex parte Tomlinson, 1 Ves. & Bea. 57, Lord Eldon observed that the court was not bound to issue a commission of lunacy merely because the fact of lunacy was established. That matter was in the discretion of the court, and to be regulated alone by the benefit to the lunatic, with reference to the care of his person and property, but not of course. In saying this he evidently meant that there were cases

of well-established lunacy, where the expense of a commission was not warranted by the value of the estate to be protected.

If the alleged lunatic be a non-resident of the State, having property here, the petitioner must establish this fact by proof, since it will not be sufficient to allege it in affidavits annexed to the petition. Without such proof, there is nothing on which a court can found its jurisdiction. Matter of Neally, 26 How. Pr. 402.

Upon an order being granted and filed with the clerk of the court, the commission will then issue. The commission should be previously prepared, according to the required form, and handed to the clerk to be indorsed and sealed. Three persons are usually named in it, of whom one should be a counselor of the court, and one a physician. The technical inquiries as to the lunacy, the value of the real and personal estate of the lunatic, and the annual rents and profits of the same, and who are his relatives, are legal questions to be passed upon by the jury, and none of them, cousequently, must be omitted in the commission.

The execution of the commission must be public and openly, as in case of any issue tried by jury. Hence, it has been held that a person proceeded against as a lunatic, except in cases of confirmed and dangerous madness, is entitled to reasonable notice of the time and place of executing the commission, and a reasonable time within which to produce his witnesses. And in order to compel their attendance he is entitled to subpœnas from the commissioners, as any other defendant. A neglect or refusal on their part to issue them will invalidate their proceedings. Ex parte Plank, 3 Am. L. J. 518; Ex parte Lincoln, 1 Brewst. 592. Nor is this rule suspended in the case of nonresidents. Matter of Pettit, 2 Paige, 174. But it is not necessary that notice should be served on him per

But it is not every case of mental weakness or imbecility which will authorize a court of equity to exercise the power of appointing a committee of the person and estate. In order to justify the exercise of such a power, it has been held that the mind of the individual must be so far impaired as to be reduced to a state which, as an original incapacity, would have consti-sonally, when it is evident that he keeps out of the tuted a case of idiocy. Matter of Morgan, 7 Paige, 236; Matter of Shaul, 40 How. Pr. 204. Although there cer tainly are degrees in idiocy, it is doubtful whether the standard thus selected, as popularly understood, is not a lower one than courts could generally or even safely adopt in exercising guardianship over the feebleminded. Every day furnishes evidence of the existence of certain minds which, far above idiocy in intensity and extensity of power, are yet shown by experience to be incapable of governing themselves or managing their affairs. Without being idiots, they are still capable of being included among the non compos class. It was to this feeble class that Lord Hardwicke referred, when he observed that it might be well if a curator or tutor should be set over prodigal and weak persons, as in the civil law. Ex parte Barnsley, 3 Atk. 169.

way to avoid service. And should any circumstances be present which afford a satisfactory reason for not serving such notice upon him, they should be stated in the petition, so that the court may authorize a suspension of the rule in the commission itself. Matter of Tracy, 1 Paige, 580.


The fact of lunacy may be ascertained wherever most convenient to the parties concerned. And it is immaterial for this purpose whether the alleged lunatic be an actual resident or not of the State. Provided only he have property within the jurisdiction of the court, its process may issue. Ex parte Southcote, 2 Ves., Sr., 401; Ex parte Baker, 19 Ves. 340. Where, therefore, a lunatic having property in this State was domiciled in an adjoining one, the court authorized the commission to be executed in the neighboring county which was most convenient and nearest the lunatic's residence. Matter of Pettit, 2 Paige, 174; Matter of Perkins, 2 Johns. Ch. 124.

POWERS AND DUTIES OF COMMISSIONERS. The commissioners are empowered to issue subpoenas, and may, in case of necessity, obtain attachments to compel the attendance of witnesses. They may also issue a precept to the sheriff requiring him to summon a jury of not less than twelve, nor more than twenty-four good and lawful men of the county, to come before them at a certain time and place mentioned therein, for the purposes named in the commission. They may also compel the production of the

« SebelumnyaLanjutkan »