Imágenes de páginas
PDF
EPUB

such evidence was material. The testimony which the to compel the proper authorities to do so, but no action plaintiff in error is charged with having falsely and cor for the money can be brought against the city. No ruptly given may have been entirely immaterial, each action is authorized by the statute, and it would defeat count being vitiated by all of the defects above pointed the object of the law, which plainly means to have the out, and each defect being a fatal one. It is unneces fund brought into court and the right to it, as between sary to consider any of the other points made as to the all claimants for it, determined as in cases of claims to validity of the indictment on any of the questions surplus moneys, etc., if any such action as the present arising as to the admissibility of evidence offered at the were sustained. Jndgment affirmed. Fisher v. The trial. Judgment of the court of general sessions Mayor, etc., of the City of New York. Opinion by reversed. The People, etc., v. Geston. Opinion by Cardozo, J. Barnard, J.

WAIVER AND AFFIRMANCE. 2. In an indictment for perjury, charged to have been In the case on appeal, the sheriff allowed testimony committed on the trial of a cause before the court, or to be taken in several other cases, before submitting an officer thereof, it is essential, 1st. That the name of this case to the jury. Held, that this was clearly the court should be stated, and that such court shall irregular. Van Waggoner v. McDonald, 3 Wend. 478, have a legal existence; 2d. That the offense should be cited. This might have been waived by defendant; charged to have been committed in the county in but some definite act on their part was necessary to which the indictment was found; and, 3d. That it show acquiescence in the irregularity. There was should appear on the face, or be alleged in the body of nothing to indicate this here. After their case had the indictment, that the evidence on which the assign- | been closed there was no time for them to object and, ment of perjury is based was material to the determin- | therefore, that they did not do so, cannot be deemed a ation of the issue, or, at least, proper to be offered on consent upon their part to the irregular course adopted. the trial of such issue. Ib.

Samuels v. Bryant, etc. Opinion by Cardozo, J.
PLEADINGS. See Husband and Wife.

NEW YORK COMMON PLEAS.
RECEIVERS. See Corporations.

OPINIONS DELIVERED DECEMBER, 1871.
REFERENCE. See Appeal.

ATTORNEYS AT LAW.
SHERIFF'S JURIES. See Waiver and Affirmance.

1. Unauthorized appearance.—The plaintiff was a fire

man on board of a rescuing vessel at the time of the UNKNOWN OWNERS.

salvage service. He came with her to New York, but Awards to unknown owners.- In 1860, certain prop left immediately thereafter for Boston. During his erty then belonging to the plaintiffs was taken for pub absence from the city, the vessel for which the salvage lic use as a street, by proceedings duly instituted by service was performed was libeled for the benefit of the mayor, etc., of New York, pursuant to the statutes the salvors, and the defendant was directed by the in relation to the opening and laying out of streets in master and owner of the salvor to appear as plaintiff's that city. The commissioners of estimate and assess proctor in the United States district court so as to ment in that proceeding awarded to unknown owners enable an adjudication of the whole matter to be had. the damages consequent upon the taking of such prop Held, that defendant should have been allowed to show erty for public use, fixing the amount at $13,800. In the directions of the master and owner to appear for April, 1862, the defendants paid into court $11,049.43 plaintiff. The appearance, it is to be assumed, was benfrom the said award, retaining the $2,740.57, which they eficient to him, as a suitable allowance is made him in claimed to be then due and payable to them for the the deoree. When an attorney or proctor appears principal and interest of an assessment imposed upon under such circumstances as these, and acts throughsaid premises for widening Centre street, in said city, out in good faith for the benefit of a party he does not. in the year 1837. On the 28th of August, 1869, this know and has never seen, he should be protected. Potaction was brought to recover the amount so claimed. ter v. Parsons, 14 Iowa, 286, and case cited. It was not The complaint was dismissed, and judgment entered in only commendable, but the duty of the master to see favor of the defendants, and thereupon the plain- that a seaman, who was not present to protect himtiffs make this appeal. Held, the statute of 1813 self, should be adequately represented in a proceeding (Valentine's laws, p. 1202), after providing, by the affecting his rights. Harrington v. Huntley. Opinion 193d section, as to awards made to persons by name, by Daly, C. J. proceeds, by the 194th section, to provide as to 2. If an attorney appears without authority, his apawards to unknown owners, infants, etc. The design pearance is good, and the court will not, after judgof the statute was plainly to protect the city from ment, disturb the proceeding on that account, unless harrassing actions and from payments to the wrong the attorney is shown to be irresponsible, because the persons. It provides a perfect system. As to those party has a remedy by action against the attorney for as to whom there could be no point or doubt, the any loss or injury he may have suffered. Originally payment was to be made direct to them, and, in the remedy of the defendant was a writ of deceit case of neglect to make the payment within the time against the attorney to recover the damages which had allotted for that purpose, an action was authorized to been sustained. To warrant a substantial recovery in be brought. § 193. But, as to unknown owners or such an action, therefore, the party must have been infants, etc., as to whom the question of right to injured, for if no injury resulted from the appearance receive the award might be disputed and doubtful, the of the attorney, though without authority, there is legislature designed to protect the city against a mul either no cause of action, or the damages would be tiplicity of claimants and the hazard of payment to the nominal. The amount in the decree in the plaintiff's wrong person, and therefore provided for bringing that favor would, prima facie, be the measure of damage, money into court to be disposed of properly. If the in an action against a proctor for giving a satisfaction city do not bring it into court, a mandamus may issue of a judgment without the plaintiff's authority. That

"pack

cases.

would be presumed to be the measure of his loss; a pre $50 each. The receipt of defendants was produced on sumption, however, which the defendant would be at the trial by plaintiffs, and was relied on by them as the liberty to rebut, by showing that what was done, evidence of defendants'obligation. On appeal, held, instead of being an actual loss, was a positive benefit. that the parties contracted with reference to a Ib.

age,” which, as they yet expressed, consisted of three BROKERS.

They thus made reference to the particular 1. What is authority to sell.— The defendants, who subjects of their contract (Woodruff v. Conn. Mut. are brokers in New York city, acting as agents for the

Ins. Co., 2 Hilt. 122, and case cited), and had in conplaintiff in buying and selling stocks, had in their pos templation the necessity of defining with particularity session as such agents and brokers on September 20,

their meaning of the word “article," as constituting a 1867, one hundred shares of the capital stock of the designated part or number of the whole package. The Chicago & North Western R. R. Co., which they had effect of thus specifying the contents of the package. purchased by order of the plaintiff. On that day they

evidenced that their minds contemplated something sold all the one hundred shares, leaving in their hands,

beyond its general description, and for the purposes of to the credit of the plaintiff, $17.20 of the margin orig

the contract extended its operation to the particularly inally deposited by him with them. The plaintiff designated articles as “three cases, ” intended as dis claims that such sale was unauthorized and made tinguished from the term “package.” In Earle v. Cadwithout notice of the time and place of sale. Defend mus, 2 Daly, 237, it was decided that the term "any ants rely upon letters of plaintiff as their authority for article" in such a receipt as in question, referred to the sale. The essential portion of the correspondence any separate article. This decision is authoritative in is as follows: On September 12th, the plaintiff wrote the case at bar. Judgment affirmed. Wetzell et al. v. to defendants that should Northwest look like reaction Dinsmore, President of Adams Express Co. Opinion or weaken, or have a downward look, to sell him fifty by Robinson, J.

CONTRACTS. or one hundred shares, as the case may look. On September 14th defendants replied that they thought the 1. Construction of contracts: measure of damages in market would recover from its present depression. On contracts of service.-By the agreement between plainSeptember 20th, telegraphed and wrote to defendants tiff and defendants, the defendants employed plaintiff of the sale in question. On October 16th plaintiff as a clerk in their mercantile agency establishment for wrote that he would hold defendants for the amount four years from April 15, 1857, at a salary increasing by of his margin with them. Held, that, if the sale was $100 a year from $600 to $1,000, payable in equal unauthorized, the plaintiff would be entitled to a ver monthly installments, and plaintiff agreed so to act for dict under the authority of Markham v. Jandon, 41 N. them and their successors and assigns, under their Y. 335. The letter of September 12th from plaintiff direction and control, in all things for that period. It was, however, an authority to sell in the event named was provided that, if defendants or their successors therein, and subsisted until revoked by implication. became dissatisfied with plaintiff, they might discharge The letter of September 14th from defendants was an him from employment at any time, on giving him ten expression of their opinion that the market would days' notice. Defendants' firm dissolved July 1, 1859, recover from its depression. The market falling rap and were succeeded in the business by a firm of which idly to the 20th September, justified defendants in the defendant Dun was one, with whom plaintiff conselling under the standing order to sell, and they per tinued in such service until about September, 1859, formed their duty to plaintiff by so selling. There was when plaintiff was peremptorily and without previous nothing here to submit to the jury. The only ques notice discharged, on an allegation of drunkenness and tion, that of authority to sell, was of law upon uudis abuse of one of the senior partners. The referee finds puted facts. The plaintiff is entitled to $17.20 and that the alleged causes for discharge were not true, and interest, as by the defendants' account, which should has awarded $500 damages (exceeding a half year's salbe credited on defendants' judgment for costs. Davis ary) to plaintiff, on account of his being dismissed for v Gwynne et al. Opinion by J. F. Daly, J.

an alleged cause that was unsustained by proof, and 2. Exceptions to the dismissal of the complaint.— The not, as he finds, in the exercise of the power reserved plaintiff did not ask the court to submit the question in said agreement. Held, that the action for wages to the jury to draw any inferences or conclusions from was properly brought on the express agreement of the the facts, as he might have done. His exception to the defendants that, notwithstanding a change of firm or dismissal of the complaint only brings up the question succession of others to the business, they would pay whether, on the conclusions of the court on undis the salary. The referee, however, erred in his award puted facts, the plaintiff had failed to make out his of damages. The power to dismiss at discretion on

Barnes v. Perrine, 12 N. Y. 23; Winchell v. Hicks, giving ten days' notice was absolute, and without the 18 id., and cases cited. Ib.

existence or any necessity for the defendants assigning any cause, and although they may have assigned one,

as inducing their conduct, which was capricious and Construction of express receipt.- The plaintiffs deliv- | unfounded, their right to this act was none the less ered to defendants for transportation a package con assured to them by the agreement. Lynch v. Stone, 4 taining three cases of drugs, of the actual value of Denio, 356. It is not a case where the employee was $113.50 for each case, and took a receipt from the discharged before the end of the term of hiring, upon defendants for "one package (3 cases drugs).” In this a groundless cause being assigned, or where the emreceipt it was specified and agreed that, in no event, ployer is compelled to justify the discharge on grounds should the holder of the receipt “demand beyond the different from those first assigned, but one where the eum of fifty dollars at which the article forwarded is power of dismissal was expressly contemplated and hereby valued, unless herein expressed.” Through reserved, upon the giving of notice for a definite time, defendants' default two of the cases of drugs were lost, and the only prejudice the plaintiff under this conand judgment has been given therefor at a valuation of tract could have sustained by his peremptory dismissal,

case.

COMMON CARRIERS.

was proba on by the

On are the agreement of notice. Judgment reversed and new

mense ter Consista

to the gr

[ocr errors]

and bit

[ocr errors]
[ocr errors]

s of the

hlated rtber

the pin

[ocr errors]

and without fault on his part, was in the loss arising

JOINDER OF PARTIES. from want of ten days' notice, and the measure of dam 1. Action to recover damages for the unlawful taking ages would ordinarily be the wages for a time equal to and wrongful conversion of five checks, drawn to the

order of the plaintiffs by different persons or firms, and trial ordered. Smith v. Douglass and Dun. Opinion upon which the plaintiffs' firm-name was forged. The by Robinson, J.

checks were received by the defendants — the Camden Also, see Common Carriers and Reference. and Amboy Railroad Company - for value, and with

out notice of the forgery of the indorsement. They CONVERSION.

were deposited by that company with the defendantConversion of United States securities.—This action the Mechanics' National Bank - who caused them to

is brought for the alleged conversion of a (seven-thirty) be presented to the several banks upon which they le pake note of the United States, issued under the act of con

were drawn, and they were duly paid. gress of March 3, 1865 (13 U. S. Stats. at Large, 468), Defendants below moved to dismiss the complaint on which, when held by the First National Bank of New the following grounds : 1. That the evidence was insuffiAlbany, Indiana, under whom plaintiffs assert title, cient to charge the said defendants jointly with any

was substantially in this form: “$1,000. Three years wrongful conversion of the said checks; 2 and 3. That intende

after date the United States promise to pay to the the evidence was insufficient to charge either defendant order of $1,000, with interest at 7 3-10 per cent, severally with any wrongful conversion of the checks;

payable semi-annually in lawful money." Signed by 4. That the evidence failed to establish that the plaintion,

the proper officer of the Treasury. It was on May 22, tiffs were ever the owners of, or were entitled to the authi

1868, intrusted by that bank to plaintiffs (common car possession of, the said checks. Motion denied, and

riers) for remittance to Washington for conversion exceptions taken. The court ordered a verdict for the is fall into five-twenty bonds, as allowed by that act, being plaintiffs, and ordered the above exceptions to be heard

indorsed by their cashier • Pay to the bearer at general term. Held, the title of plaintiffs to

(printed), Secretary of the Treasury for redemption, the checks was evidenced by their being made ce of domes W. Mann, Cash.” The package containing this note payable to their order, as well as by proof of the : htter was, in course of transportation, stolen from the plain transactions in which they were given as payment. popely tiffs and taken to Liverpool, England, where the The proof showed the alleged indorsement by the talib indorsement, having been obliterated or extracted by plaintiffs through which title to and authority to colTEM some chemical process, so that it could not be observed, lect these checks was a forgery, but it is claimed by the satie it was, in good faith and for full value, purchased by the defendants that neither a joint or several action for

firm of Bemas & Co., bankers, who thereafter remitted the conversion can be maintained. This position is not it to the defendants, bankers, and their correspondents tenable. Each defendant has dealt with these checks in New York, for conversion. Defendants sent the in derogation of plaintiffs' title, claiming through the full value of the note to Bemas & Co., without notice forgery, and they have, by their concurred action, made affecting the validity of their title, and they subse a conversion of the checks and realized therefrom their quently converted it by accepting substituted security, full value. Although the bank does not appear to have in conformity with the provisions of the act of 1865. acted except as collecting agent for the railroad, they Held, that the note, although issued by the United are equally liable for their acts on behalf of a principal States government, was subject to the common-law who could give no such authority. Both defendants rule applicable to commercial paper. As issued, no have contributed to the same injury, and are to render payee being named, it was payable to any bona fide but a single satisfaction. The plaintiff had his election holder before maturity. The payee's name being in either to sue in trover or for money had and received. blank, he could insert his own name or that of any

Judgment ordered. White v. The Mechanics' National other person. But until such restriction was placed Bank et al. Opinion by Robinson, J. upon the negotiability of the instrument, it continued 2. Action for conversion of several checks payable an obligation through the law merchant payable to to the order of the plaintiffs, and upon which the any one who, in good faith and before maturity, be indorsement of plaintifts was forged. Upon such came its holder. Indorsements or other minutes on forged indorsement the defendant Frink, in good its back or otherwise, so long as they continued appa faith, cashed the checks and passed them to the derent, operated at most by way of notice or of guaranty, fendant Sweeny, for full value and in good faith. but otherwise in no way interfered with the negotia- Sweeny deposited them in the National Park Bank bility of the instrument, which, until its restriction by and received credit for them. The bank admits the the insertion of the name of a payee, continued paya- possession of the checks at the time of the alleged conble to bearer. Defendants' title to the note was in no version, and by its answer claims them as its property. way acquired through any indorsement of the bank, Held, the right of the plaintiffs to maintain an action and was in no way affected by any obliteration or for the conversion of their property in these checks is forgery of the indorsement made by the bank's cash well established (1 Hill, 295), as is the right to form ier.

Judgment should be in favor of defendants. successive transferees in one action. 23 N. Y. 264. No. Dinsmore, President, etc., of Adams Express Company demand was necessary as to either defendant. Frink v. Duncan et al. Opinion by Robinson, J.

and Sweeny had transferred the checks, and the Park Also, see Joinder of Parties.

Bank had collected them; besides, they had severally

put the plaintiffs' title in issue. In bringing this action CORPORATIONS. See Common Carriers and Negligence. the plaintiffs do not, until satisfaction of their claim,

conform or assent to the acts or title of any wrongDAMAGES. See Contracts and Negligence.

doer, except that they probably affirm the payments DISMISSAL OF COMPLAINT. See Brokers.

made by the banks on which the checks were drawn,

and their absolute conversion by means of payEXPRESS COMPANIES. See Common Carriers. ments made by the drawer. In recognizing the agency

[ocr errors]
[ocr errors]

ves

[ocr errors]

they do not impair their remedy against the agents and securities to the value of more than $100,000. through whom a wrong had been done. Under these Shortly after his arrival here he became insane, and views the mere return to plaintiffs of these paid and has since been confined in a lunatic asylum, under the canceled checks after suit brought, the extinguish care and custody of the court, the circumstances attendment of which as a subsisting liability was recognized | ing his insanity are well known. The application for by the bringing of a suit for their conversion, is no de the removal is made by the wife of the lunatic, who fense for the parties through whom the wrong has resides at Bombay, for the reasons : been consummated. Judgment for plaintiff affirmed. 1st. That Colah's entire life before he quitted BomWhite et al. v. Sweeny et al. Opinion by Robinson, J. bay had been passed in that place; that he, all his relaMASTER AND SERVANT. See Contracts.

tions, and nearly all his connections and friends are

Parsees whose religious habits and customs are totally NEGLIGENCE.

different from those of the people of the United States; 1. Action to recover damages for injuries sustained

that there are no Parsees resident in this city, nor any by the plaintiff in consequence of an accident to a

priest or minister of that religion in this country, and,

that, in the event of his decease here, his remains train on defendants' railway, in which plaintiff was a passenger. On the trial the plaintiff proved that he

would be deprived of the performance of certain rights was in the car of a train on defendants' road; that, by

and ceremonies which are deemed essential and vital reason of the breaking of one of the rails, the car over

by all persons of the religious faith in which he has turned; and that plaintiff had his collar bone broken,

been educated, and has always professed.

2d. That the difference between this climate and that without imputation of negligence on his part. Plaintiff proved surgical treatment, the time during which

of Bombay, and the difference in diet and the mode of he was disabled, and the character and value of his earn

living, are unfavorable to his health, and have a prejuings. Held: The fact that the accident arose from the

dicial effect upon his mental condition. car running off the track and upsetting showed some de

3d. That he has ceased to be violent or dangerous, fect in the road or machinery by which it was oper

and is now quiet and easily managed; that he rarely ated as presented a prima facie case of negligence

speaks, or takes notice of or exhibits any interest in entitling him to recover. They had contracted to carry

what is passing around him; that it is very difficult to him safely, but failed to do so, through defect in

arouse his attention, and that the only hope of restorthe track. They were bound to have their track in a

ing him lies in his return to his native country, the sound and safe condition. The burden of proof was

society and care of his wife, the presence of his chilfor them in this case, to prove that the accident occur

dren, and the renewal of former associations with relared without fault on their part.

tions and friends in the scenes to which he has been 2. Measure of damages. — There was no error in in

accustomed from his infancy. structing the jury that, in fixing the measure of dama

The first of these grounds, the importance in the ges, they might take into account the probable earn

religious belief of the Parsees of certain rites and ings of the plaintiff, during his disability on account of

ceremonies over the body after death, was denied; the injury. Brignolo v. Chicago and Great Eastern

but the other grounds were sustained. The case was R. R. Co. Opinion by Robinson, J.

submitted to five physicians, who unanimously re3. The judge was requested to charge, that if the

ported that, in their opinion, Colah's removal to Bomtrack and rails were sound immediately before the

bay will not prove injurious to his physical or mental accident, and there was no defect in the rail which

health, and, in case he is properly attended, that it could have been discovered by any examination, the

would be a very expedient measure. The learned defendants were not responsible. This was refused, judge, in granting the application, says: "The juristhe judge saying it was a question for the jury. The

diction assumed to be inherent in a State over that proposition was abstractly correct. It involved a pro

unfortunate class of persons within its limits who are position of law, and if at all relevant, could not be

deprived of the use of their mental faculties may be left to the jury to pass upon as a question of fact.

said to rest upon two grounds: It could not be deemed immaterial, if there was any

First. Its duty to protect the community from the testimony at all in the case upon which to predicate it,

acts of those who are not under the guidance of reason, and I think there was such testimony. Dissenting

and secondly, its duty to protect them, as a class incaopinion by Daly, C. J.

pable of protecting themselves, which has its founda

tion in the reciprocal obligations of allegiance and proNEGOTIABLE INSTRUMENTS. See Conversion and join

tection, which extends to aliens and strangers who, der of parties.

while they are within the limits of a State, are under See Negligence.

the obligations of a temporary and local allegiance, (To be continued.)

and are entitled to its protection. 1 Bl. Com. 370; Cockburn on Nationality, p. 139; The case of the Princess Bariatinsky, 1 Ph. 375; Highmore on Lunacy,

p. 18; Powell on Legeance and Protection, pp. 169, 205. INSANE PERSONS.

In England, whence our law respecting idiots and Chief Justice Daly has recently given the following lunatics is derived, the custody and care of this class opinion, at the special term of the court of common of persons and their property is a part of the prerogapleas for the city of New York, in the matter of the tive of the sovereign. Anciently, by the common law, application for the transfer of Bomanjee Byramjee Colah, it was intrusted to tutors, or, more properly, curators, a lunatic, to Bombay, in India. Colah is a native of the curator being either the feudal lord or the next of Bombay, of the age of twenty-six years, a Parsee, a kin, who, in the case of an idiot, as his disability was well-known race in India, of peculiar religious tenets, permanent, took his land and the profits, as the next habits and customs. In the year 1870 he left Bombay, in succession, subject to the obligation of supporting and came to New York city, bringing with him money him during his life; but, in the case of a lunatic who

RAILROAD COMPANIES.

care

may be restored to his reason, the curator simply had since 1854, having committed to it by statute the the custody of the estate, under the obligation of ap and custody of the person and estate of a lunatic or plying the profits to his support, and retaining the person of unsound mind,” when he resides in the city excess that it might, together with the estate, be and county of New York. Code of Procedure, $ 30; restored to him if he recover his reason, and if not, Laws of New York of 1854, p. 464, $ 6. that it might be secured to his heirs. Bracton, lib. 1, An authority that carried with it all the power that cap. 10, lib. 5, c. 20; Fleta, lib. 1, cap. 11, $ 10, p. 6; Mir

was exercised in such cases by the lord chancellor in ror of Justices, pp. 46, 74, 98, 123, 130; Year Books, 32 Great Britain, or by the court of chancery in this Edw. I, p. 272; Beverly's Case, 4 Cos. 127; 1 Bl. Com. State, when this jurisdiction was intrusted exclusively 302; Fitz. N. B. 232; Shep. Ct. Keeper, c. 22, 172; Bacon's to that tribunal. Justice Harris has said, in John MaDiscourse on the Laws of England, from Selden's son's Case, 1 Barb. S. C. 441, that, as our statute has Notes, pp. 175, 176; Reeve's History of the Eŋglish conferred this jurisdiction “without restriction or Laws, by Finlason, introduction, xc to ci, vol. 2, c. xii, limitation, the manner in which the control thus given p. 193 and note a.

is to be exercised by the court is entirely a matter of But this practice being attended with great abuses, discretion; which, however, must be understood the king, as parens patrice or common curator of the with this qualification, that it is a discretion regulated realm, assumed, as early as the reign of Henry I, ex and restricted by certain rules and principles that have clusive jurisdiction over this class of persons and their always been acted upon, both in this country and in estates; and in the statute De Prerogitiva Regis, England. passed in the reign of Edward II (17 Edw. II, c. 9, 10), It may be said, in general terms, in relation to the it was placed among the king's prerogatives. That nature and extent of this jurisdiction, that the care statute declaring that the king should have the custody and custody of a lunatic, and of his estate, necessarily of the lands of “natural fools,” and the profits, with imply both the right and the duty on the part of the the obligation of maintaining them, and that, with court to do, in respect to either, whatever is most conrespect to those who had had “their wit and memory,' ducive to his interest; to see, in respect to his person, but had lost it, the king should provide that their that he is maintained as comfortably as his unfortulands should be safely kept; that they and their house nate situation will admit of and his pecuniary reholds should be maintained out of the profits of their sources will allow; that every thing is done that can estates, and that the residue should be kept to their be done by care, skill and medical treatment, to prouse, to be delivered to them when they came to “their mote his general health, or which will or may contribright mind; a jurisdiction or power which was not, ute to the restoration of his reason. His interest is the as has been supposed, derived from the statute, but chief consideration, and, therefore, great care has rests on the broader ground of the duty of a sovereign, always been taken not to intrust the custody of his as parens patrice, to take care of those who, by reason person or his estate to those who may be pecuniarily of their imbecility or want of understanding, are inca benefited by his death, or whose interest it is to keep pable of taking care of themselves, a principle intro his property from diminishing, unless the officer exerduced into the common law at a very early period cising the power is satisfied that it would be to the from the Roman law of the Twelve Tables. Inst. B., advantage of his bodily and mental condition, that tit. 23, SS 3, 4; Dig. 27, 10, 1, 67; Maynz Elements du those who stand in the relation to him of blood and Droit Romaine, tom. 1, § 106; Ortolan's generalization natural affection should have the custody and care of du Droit Romaine, 94, 95, 96, 97 ; Shep. Abm. part 3, p. 71. him. Nor will the interest of heirs or next of kin be And which, upon the authority of Selden, was one of at all considered in any outlay that may be made for the liberties and privileges secured by Magna Charta. his comfort or benefit, or in determining what is most Bacon's Discourse on Selden's Notes, p. 176, 5 m.

conducive to his interest, either in the care of his perThis duty was first discharged by the king's commit son or in the management of his estate. ting the custody of such persons and of their estates “The king” said Lord Hardwicke, in Roberts' Case, to proper committees in each particular case; but it 3 Atk. 309, “is quasi, a trustee for the lunatic's benefit was afterward transferred to the lord chancellor, not only.” Lord Macclesfield declared that, in the eye of in his capacity as chancellor, or as a part of his equi the law, a lunatic is never looked upon as beyond the table jurisdiction, but as the king's delegate in the possibility of recovery, and added, “it is his benefit exercise of this special jurisdiction. Fleta, p. 6; Reeves' and comfort I am to take care of, and not to heap up History of English Law, by Finlason, vol. 2, ch. 12, p. wealth for the benefit of his administrator or next of 193, and note a; Staunf'd Pr. Reg. 33; 1 Bl. Com. 303; kin.” Dormer's Case, 2 P. Wms. 265. 3 id. 427; In the matter of Heli, 3 Atk. 635; Ex parte And Lord Northington afterward declared that, “in Phillips, 19 Ves. 122. And the exercise of it in Eng the management of the lunatic's estate, the ruling land, through many centuries, has resulted in the for principle is to do what is for the benefit of the lunamation of a body of precedents and rules constituting tic.” Ex parte Grimstone, Amb. 707. a distinct branch of jurisprudence.

Lord Loughborough, in adverting to the precedents So much of the law as formed a part of the king's and orders of previous chancellors in the exercise of prerogative, and was applicable under our republican this delicate jurisdiction, said, “that there was one form of government, was, upon our separation from pervading principle, which was that the trust was Great Britain at the revolution, vested in the people, administered solely in the interest of the lunatio himand this especial jurisdiction was, in this State, by self, that nothing could be more mischievous than to legislative enactments, transferred to certain judicial consider how his successor might be affected by what tribunals that have administered it in accordance with was done, and that the chancellors had always shut the rules and principles which the course of experience out of their view all consideration of eventual interests, in England has pointed out as the most just, practica and considered only the interest of the person under ble and judicious.

their care.” Oxenden v. Lord Compton, 2 Ves. Jr. 72. This court has been one of those designated tribunals “A lunatic,” says Lord Eldon, in Chamley's Case,

« AnteriorContinuar »