Gambar halaman

signment, and the acceptance of the sub-tenant by seeing that somebody must lose by this deceit, it is the landlord with the intent to substitute him in more reasonable that he who employs the deceiver

should be a loser than a stranger." But in every the place of the original lessee. The case of Thomas

case where the doctrine of constructive notice is v. Cook, 2 B. & Ald. 119, sanctions the rule that a maintained, the knowledge of the agent has been surrender in law will be implied or raised up from imputed to the principal for the benefit of a third the facts that a tenant has put a third person in party, who has dealt with the agent in good faith. possession of the demised premises, and that such

The court, in the case at bar, says that it can have third person has been accepted as tenant with the responsible to the public by way of indictment,

no application here. “ The plaintiff would not be assent of the original tenant ; but this case was without showing an actual knowlege of the intended criticised strongly in Lyon v. Reed, 13 M. & W. 285. wrongful use of his premises, and, surely, the law The court, in the principal case, says : “To ascribe

will not impute turpitude to him, by charging him

with a knowledge which he did not actually have, the effect of a surrender to the mere act of the

for the benefit of a defendant who sets up his own landlord accepting the assignee as his tenant, and execution of such criminal design in his defense. receiving rent from him, would be going beyond See, also, on the general subject, Iill v. North, 34 the precedents. To warrant the inference that the

Vt. 604; Lawrence v. Tucker, 7 Greenl. 795; Bracken

V. Miller, 4 Watts & S. 102. original lease has been annulled the facts ought to be of an entirely conclusive character." See, also,

In Gokey v. Knapp, 44 Iowa, 32, it is held that Mills v. Auriol, 1 Smith's L. C. (Phil. ed. Hare & Wal

where an agent for lending money lent it at usulace's notes) 1239, where it is said by Lord Kenyon rious rates, he would not be presumed to have had that “It is extremely clear that a person who enters

the authority to make the loan upon such conditions, into an express covenant in a lease continues liable

and that his act would not affect his principal. The

rule in this case is supported by numerous authorion his covenant notwithstanding the lease be as

ties. In Dagnell v. Wigley, 11 East, 43, a bill of exsigned over. If the lessee assign over his lease and change was held not to be usurious, upon the ground the lessor accept the assignee as his lessee, either that the person advancing the money received no tacitly or expressly, it appears from the authorities

more than legal interest. The person receiving more

was a broker, who acted as agent between the parthat the action of debt will not lie against the ties. In Condit v. Baldrin, 21 N. Y. 219, an agent original lessee, but all those cases with one voice intrusted with money to invest at legal interest exdeclare that if there be an express covenant, the ob- acted a bonus for himself as a condition of making ligation on such covenant still continues.” See,

the loan, without the knowledge or authority of

his principal, and the court held that this did not also, Griffith v. Hodges, 1 C. & P. 419; Talbot v.

constitute usury in the principal, nor affect the Whipple, 14 Allen, 180; Stobie v. Dills, 62 Ill. 432; security in his hands. The court says (following Baker v. Pratt, 15 id. 568; Hegeman v. McArthur, Bacon's Abr., title Mast. & Serv.): "If a master

command his servant to do what is lawful and he 1 E. D. Smith, 147; Dodd v. Acklom, 6 Mann. &

do an unlawful act, the master shall not answer, but Gr. 673; Grimman v. Legge, 8 B. & C. 324.

the servant for his own misbehavior, otherwise it

would be within the power of every servant to subIn Stanley v. Chamberlin, 39 N. J. Law, 565, the ject his master to what penalties he pleasedl." See, agent of plaintiff, wbo was the owner of real estate, also, Middleton v. Fouler', 1 Salk. 282; Commonrented the premises to the defendant, knowing that wealth v. Frost, 5 Mass. 53. In Baxter v. Buck, 10 he intended to use them for gaming purposes. Vt. 548, an administratrix gave to her son to prePlaintiff had no actual knowledge of the intended sent to defendant for payinent a note of $250. The use. In an action for the rent the defense set up son and defendant, without the knowledge of the was that the renting was for an unlawful purpose. administratrix, made an agreement whereby the The court held that the knowledge of the agent time of payment was to be extended one year, at was not to be imputed in this case to the principal, the usurious rate of twelve per cent. A new note and that plaintiff was entitled to disown the agent's was given for the principal sum, and another note contract and to recover on a quantum ralebat for the to the son for the interest. The court held that use of the premises. The general rule is well estab- the note for the principal was valid as between the lished, that knowledge of the agent is knowledge administratrix and defendant, See, also, North v. of the principal, and that the principal must be Sergeant, 33 Barb. 350; Bell v. Day, 32 N. Y. 165. charged with a notice of such facts as are com- In the latter case only the dissenting opinions are municated to the agent in the particular employ- given, but the court sustained the rule in Condit v. ment which has been committed to him. Cornfoot Baldwin. The Court of Errors and Appeals of New v. Fowke, 6 M. & W. 358; Cooper v. Slade, 6 H. Jersey acknowledge the same rule in Muir v. Newark of L. Cas. 793. And in Dresser v. Norwood, 10 Sav. Inst., 16 N. J. Eq. 537, 539. See, also, ConJur. (N. S.), it is held that the principal is affected over v. Van Muter, 3 Green, 481; Rogers v. Buckingby the knowledge of his agent acquired in transac- ham, 33 Conn. 81; Hopkins v. Baker, 2 P. & H. 110. tions other than those belonging to his agency. See, however, as favoring a different rule, Wilson See, also, Hern v. Nichols, 1 Salk. 289, where a mer- v. Truman, 6 Mann. & Gr. 238; Bush v. Buckingham, chant employed a factor to sell silk for him, and 2 Ventris, 83; Buckley v. Guildbank, Cro. J.; Austin the factor sold one sort of silk for another, and the v. Harrington, 28 Vt. 130. But the current of doubt was whether this deceit could charge the authority is so strongly in favor of the doctrine of merchant. Holt, C. J., was of the opinion

" that

the principal case that it may be deemed estabthe merchant was answerable for the deceit of his lished. Any other doctrine would open the door to factor, though not criminaliter yet civiliter, for, numerous frauds.

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


“A correct statement of the rule governing THAT most violent of all presumptions: that “every where a party pays an illegal demand with a full

such cases as this would probably be as follows : man knows the law,” and the resulting maxim, knowledge of all the facts which render such dethat “ignorance of the law excuses no one,” have

mand illegal, without an immediate and urgent led to many apparent hardships, not least of which is the rule that money paid for taxes illegally assessed necessity therefor, unless to release his person or cannot be recovered unless paid under compul- ate seizure of the same, such payment must be

property from detention, or to prevent an immedision.

deemed to be voluntary, and cannot be recovered An excellent illustration of this rule was afforded 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 peared that a tax was assessed on land under a statute afterward decided to be unconstitutional.

make the payment involuntary.” Prior to such decision the owner paid the tax, under

But in a subsequent case the same court, while protest, to prevent a threatened sale. It was held affirming the foregoing rule, held that taxes paid

under protest could be recovered back where the that the payment was voluntary, and that the money

tax had been assessed, the time for its correction could not be recovered back; and this conclusion was reached on the ground that a sale, under the passed, and nothing remained to be done but to

issue the warrant for its collection, which the statcircumstances, would not have constituted a cloud

ute required to be done. Kansas Pacific R. R. Co. upon the title.

v. Commissioners of Wyandotte Co., 16 Kans. 587. The Court of Appeals of New York have recently examined the question when money paid for taxes

In Massachusetts, in Boston Glass Co. v. Boston, illegally assessed may be recovered back. Peyser v.

4 Metc. 181, it is held that “payment of taxes to a Mayor, 16 Alb. L. J. 283. The court held that collector, who has a tax-bill and warrant in the money paid upon an erroneous judgment, or tax form prescribed by law, is to be regarded as comlevy which has been reversed after payment, may be pulsory payment, and if such taxes were assessed recovered back provided the payment was involun

without authority, they may be recovered back in tary, or under compulsion from coercion, either in

an action for money had and received, although the fact or law. Among the instances of coercion in party made no protest before payment.” This case law the court included the levy of a tax, regular follows Preston v. Boston, 12 Pick. 7, where it is upon its face, which may be demanded and enforced held, “if a person pay an illegal tax in order pre-, in due course of law, by sale of the property of the vent the issuing of a warrant of distress with which one assessed. The levy or assessment must, how- he is threatened, and which must issue, of course, unever, be prima facie regular so as to furnish evidence less the tax is paid, the payment is to be deemed of its own validity, for if the validity must be compulsory, and not voluntary." shown aliunde the action is maintainable. Folger, In Grim v. School District, 57 Penn. St. 434, it is J., who delivered the opinion of the court, said:

said to be settled law, that “a party who, when “ Coercion by law is where a court having juris-threatened with a distress, pays an illegal tax under diction of the person and the subject matter has protest and notice of suit, may maintain an action rendered a judgment which is collectible in due to recover it back.” See, also, Henry v. Horstick,

There the party cast in judgment may not 9 Watts, 412. In Allen v. Burlington, 45 Vt. 202, resist the execution of it. His only remedy is to obtain a reversal, if he may, for error in it. As he

the court says: “If the plaintiff was constrained to cannot resist the execution of it when execution is pay the tax to save his property from distress, and attempted he may as well pay the amount at one to avoid a penalty and costs, it was not a voluntary time as at another and save the expense of delay. It payment.” Bubcock v. Granville, 44 Vt. 326; Henry may be well to say, that if the judgment is not afterward reversed, but is invalid for any collateral

v. Chester, 15 id. 460. reason, or the process issued upon it is illegal, pay

In Fellows v. School District, 39 Me. 559, a party ment with knowledge of the fact would perhaps be was arrested for non-payment of a tax, promised to voluntary, which seems a sound distinction taken

pay if released, was released and about a week after by Emott, J., in Lott v. Sueezy, 29 Barb. 87--92.”

paid the tax and costs; this payment was held not In Wabaunsee Co. v. Walker, 8 Kans. 431, the plain- to be voluntary; so in Gachet v. McCall, 50 Ala. tiff redeemed lands which had been sold for taxes, 307, the owner of land which was advertised for and was charged by the county treasurer interest on sale for non-payment of taxes, promised the tax-colsaid taxes at the rate of fifty per cent per annum. lector that, if he would postpone the sale, he would Plaintiff paid the same under a written protest,

The sale was postponed and the tax claiming that the interest should have been only at paid according to agreement, but under protest. the rate of twenty-five per cent. The court held Held, that the payment was voluntary and could not that he could not recover the money so paid. Val- be recovered,


pay the tax.

In Meek v. McClure, 49 Cal. 623, which was an the coercion or duress. In this case the defendant action against a tax-collector to recover back was not informed by the protest that the plaintiff money paid under protest for taxes alleged to have claimed that the action of the board of equalization been not duly assessed-in this that the assessment was void; and there was nothing in the assessment made by the assessor had been irregularly and un- roll or other document which came to the hands of lawfully increased by the board of equalization, the defendant, as the tax-collector, which would the court held that the money could not be recov- impart notice to him that the action of the board of ered, because the protest was not sufficient to indicate equalization in increasing the valuation of the to the defendant the grounds upon which the plain- plaintiff's property was void, because the order was tiff claimed the demand to be illegal. Rhodes, J., made without any complaint having been filed bedelivering the opinion of the court, said: “It was fore the board, stating that the valuation was too held in Hayes v. Hogan, 5 Cal. 243; McMillan v. low. The protest, in our opinion, was not sufficient Richards, 9 id. 417; Falkner v. Hunt, 16 id. 167, and to entitle the plaintiff to maintain an action to reother cases in this court, that if money which is not cover back the amount paid on account of the inlegally due is exacted by means of duress or co- crease of the valuation of the property." ercion, it may, if paid under protest, be recovered

In Hendy v. Soule, Deady, 400, it was decided back. The purpose and effect of the protest is not that when taxes are paid on the demand of an offisatisfactorily defined in any of those cases.

cer having authority to collect them by distraint, of them it is said that one purpose of the protest there is sufficient duress of the property to make is to take from the payment its voluntary charac- payment involuntary. ter; but it is manifest that it is involuntary only In Jersey City v. Ricker, 20 Am. Rep. 386; 9 because of the coercion, the duress, or the undue Vroom, 225, it was decided that when an assessment advantage exercised or possessed by the party to has been set aside by a court, one who has paid it, whom the payment is made. If money is paid, under though voluntarily, may recover the money back. these circumstances, to a party for his own use, no As to when money, voluntarily paid, may be reprotest is necessary in order to lay the foundation of covered back, see Town of Ligonier v. Ackerman, 15 an action. In most of the cases in which the effect

Am. Rep. 323; S. C., 46 Ind. 552, and note to Black of a protest is considered, the payment was made

v. Ward, 15 Am. Rep. 171; Chandler v. Sanger, to a public officer; and the only purpose of the pro- 19 id. 367. test was to give the officer notice that the money was not legally due, and thus to enable the officer


feudal system, law of Eng

In one

officer is thereby put on inquiry as to whether the

er they happened to belong to the class of villeins remoney is legally due; and if he finds that the de- gardant, or villeins in gross, they appear to have been mand is illegal, he may protect himself by refusing equally uncared for by the sovereign authority of the to receive the money; or, if he finds that it is of realm. Inasmuch, also, as they were simply base doubtful legality, he may take the proper steps to

tenants, a people living in servitude to the lord of the

soil, like the cattle upon it, the loss of mind in any one avoid, or protect himself against responsibility. If

of them produced as little effect upon the legal status the officer has notice of the matter which renders

of things in the manor, as would the death or incathe demand illegal, another notice in the form of a pacity of any beast of burthen. Neither justice nor protest would be useless; but if he has no knowl- humanity toward men could be expected to spring edge of such matter, he ought not to be subjected

from a system of predial servitude, which, reflecting

its influences upon jurisprudence, left charity to to the costs and consequences of an action to re

flourish only in the bosom of the church. Laws were cover money from him—and that, too, perhaps,

then made only for free men and freeholders, and after he has paid over the money in the usual course paupers, whether sane or insane, bad to find proteoof official business—without notice from the party tion and sustenance whenever they could at the hands paying the money of the grounds upon which he

of private benevolence. See History of Lunacy Legisclaims that the demand is not legally due. Wher

lation, ante.

We seek in vain, therefore, for any general laws ever a protest is essential, it is, therefore, necessary

desiguating the duties of the State toward them as to state the grounds upon which the party paying charitable objects. And it is perhaps as much from the money claims that the demand is illegal. The this cause as from the teachings of the church that statement of the precise amount which is claimed sprang up the abundance of gifts to charitable uses in to be illegal, when a part of the demand is legal, is

England. of but little moment, for that, as in this case, can * The following is from advance sheets of Prof. Ordroreadily be ascertained by the official to whom the

naux's Commentaries on the Lunacy Laws of New York,

and on the Judicial Aspects of Insanity at Common Law money is paid, upon being informed of the ground and in Equity, including Procedure, as expounded in Eng

land and the United States, now in the press of Mr. John upon which payment would be refused, except for D. Parsons, Jr.

But as soon as the element of property asserts its presence in the history of a class, we perceive the seusitiveness 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 iu 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 moderu times. Originally they consisted of writs issued in chaucery, of which only two forms were known, viz. : the writde 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 idiotu inquirendo and the writ de lunatico inquirendo, aud if the jury could not find that the party came within either of these classes, 110 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 luuacy, 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 Euglish 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 Chaucery 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 imbe. cility 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.

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 of well-established lunacy, where the expense of a compos mentis." Co. Litt. 246, b.

commission was not warranted by the value of the An inquisition may, therefore, be awarded for any estate to be protected. cause which substantially incapacitates a party to If the alleged lunatic be a non-resident of the State, manage his affairs. It matters not, therefore, whether having property here, the petitioner must establish the party be reduced to this condition by disease, or this fact by proof, since it will not be sufficient to alold age, or habitual intoxication. Ex parte Tracy, 1 | lege it in affidavits annexed to the petition. Without Paige, 580.

such proof, there is nothing on which a court can Any thing which reduces the mental capacity of an found its jurisdiction. Matter of Neally, 26 How. Pr. individual to such a degree as to permanently unfit | 402. him to comprehend the nature and necessities of his Upon an order being granted and filed with the clerk own affairs; to take in the position which those affairs of the court, the commission will then issue. The occupy to others, and the provision necessary to be commission should be previously prepared, according made to secure himself against the ordinary risks and to the required form, and handed to the clerk to be contingencies of business, may be said to render him, indorsed and sealed. Three persons are usually named in contemplation of law, unfit to manage his affairs. in it, of whom one should be a counselor of the court, Although not properly a lunatic, he is still in the eye and one a physician. The technical inquiries as to the of the law non compos mentis, and a proper subject for lunacy, the value of the real and personal estate of the an inquisition of lunacy.

lunatic, and the annual rents and profits of the same, However probable may be the existence of the fact and who are his relatives, are legal questions to be of lunacy, it must still be sufficiently well substairtiated passed upon by the jury, and none of them, conseto satisfy the judgment of the court to which applica- quently, must be omitted in the commission. tion for a commission is made, since the court cannot The execution of the commission must be public act on conjecture alone. Therefore, in Sherwood v. and openly, as in case of any issue tried by jury. Sanderson, 19 Ves. 286, Lord Eldon observed that "be- Hence, it has been held that a person proceeded fore a commission issues, the duty of that person who against as a lunatic, except in cases of confirmed and has authority to issue it requires him to have evidence dangerous madness, is entitled to reasonable notice of that the object of the commission is of unsound mind the time and place of executing the commission, and and incapable of managing his affairs, and for that a reasonable time within which to produce his witpurpose the evidence of medical men is generally pro- nesses. And in order to compel their attendance he duced.”

is entitled to subpoenas from the commissioners, as any But it is not every case of mental weakness or im- other defendant. A neglect or refusal on their part to becility which will authorize a court of equity to exer- issue them will invalidate their proceedings. Ex parte cise the power of appointing a committee of the person Plank, 3 Am. L. J. 518; Ex parte Lincoln, 1 Brewst. and estate. In order to justify the exercise of such a 392. Nor is this rule suspended in the case of nonpower, it has been held that the mind of the individual residents. Matter of Pettit, 2 Paige, 174. But it is not must be so far impaired as to be reduced to a state necessary that notice should be served on him perwhich, 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; way to avoid service. And should any circumstances Matter of Shaul, 40 How. Pr. 204. Although there cer be present which afford a satisfactory reason for not tainly are degrees in idiocy, it is doubtful whether the serving such notice upon him, they should be stated standard thus selected, as popularly understood, is not in the petition, so that the court may authorize a susa lower one than courts could generally or even safely pension of the rule in the commission itself. Matter adopt in exercising guardianship over the feeble- of Tracy, 1 Paige, 580. minded. Every day furnishes evidence of the exist

PLACE OF EXECUTING COMMISSION. euce of certain minds which, far above idiocy in in

The fact of lunacy may be ascertained wherever tensity and extensity of power, are yet shown by most convenient to the parties concerued. And it is experience to be incapable of governing themselves or

immaterial for this purpose whether the alleged managing their affairs. Without being idiots, they are

lunatic be an actual resident or not of the State. Prostill capable of being included among the non compos

vided only he have property within the jurisdiction of class. It was to this feeble class that Lord Hardwicke

the court, its process may issue. Ex parte Southcote, referred, when he observed that it might be well if a

2 Ves., Sr., 401; Ex parte Baker, 19 Ves. 340. Where, curator or tutor should be set over prodigal and weak therefore, a lunatic having property in this State was persons, as in the civil law. E. parte Barnsley, 3 Atk.

domiciled in an adjoining one, the court authorized 169.

the commission to be executed in the neighboring ISSUING THE COMMISSION.

county which was most convenient and nearest the When a case appears prima facie to be one of idiocy, | lupatio's residence. Matter of Pettit, 2 Paige, 174; lunacy, unsoundness of mind, or habitual drunken- | Matter of Perkins, 2 Johus. Ch. 124. ness, the court will, in general, grant the application

POWERS AND DUTIES OF COMMISSIONERS. for a commission, though it is not by law compelled to The commissioners are empowered to issue subdo so. 2 Barb. Ch. Pr. 229. In Ex parte Tomlinson, 1 ponas, and may, in case of necessity, obtain attachVes. & Bea. 57, Lord Eldon observed that the court was ments to compel the attendance of witnesses. They not bound to issue a commission of lunacy merely be- may also issue a precept to the sheriff requiring him cause the fact of lunacy was established. That matter to summon a jury of not less than twelve, nor more was in the discretion of the court, and to be regulated thau twenty-four good and lawful men of the county, alone by the benefit to the lunatic, with reference to to come before them at a certain time and place menthe care of his person and property, but not of course. tioned therein, for the purposes named in the commisIn saying this be evidently meant that there were cases sion. They may also compel the production of the

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