We have thus illustrated, so far as our limits would allow, the subject of this chapter; but there remains one subject which, though uot strictly a part of equitable jurisdiction, is so closely allied to it, that it may, with advantage, find its place at the close of a description of the power of the court.

Idiots and lunatics not as such within the jurisdiction of the court of chancery.

In the same category, of those who, like infants, require a quasi parental care, are persons who, being either idiots (g) or of unsound mind, are unable to take care of themselves or their property. We have already remarked that the sovereign, to whose care these fall, entrusts the charge to the chancellor. But the care of idiots and lunatics does not form part of the general jurisdiction of the court of chancery. The master of the rolls and the vice-chancellors have no jurisdiction whatever to interfere with the affairs of a lunatic, which would not be the case if such interference were considered to be part of the inherent jurisdiction of the court, because in that case all applications would be heard in the first instance by one of them. It is convenient, however, in this place, to The care of them mention the law relating to lunacy, because, the care of lunatics being part of the lord chancellor's duties (r), which duties are lord chancellor. shared by the other judges of the court of appeal in chancery (s), it is closely allied in its operation, as well as * its nature, with much [* 83 ] of the common jurisdiction of the court. Moreover, the court, in the exercise of its general jurisdiction, has, where a small property under its care belonged to a person who appeared to be incapable of taking care of himself, directed that the income should be applied for his maintenance (†).

is part of the duties of the

The custody of an idiot and of his lands was formerly vested in the lord of the fee (u) (and therefore still, by special custom, in some manors the lord shall have the ordering of idiot and lunatic copyholders (x)); but, by reason of the manifold abuses of this power by subjects, it was at last provided by common consent, that it should be given to the king, as the general conservator of his people; in order to prevent the idiot from wasting his estate; and reducing himself and his heirs to poverty and distress (y). This fiscal prerogative of the king is declared in parliament by statute 17 Edw. 2, c. 9, which directs (in affirmance of the common law (z)) that the king shall have ward of the lands of natural fools, taking the profits without waste or destruction, and shall find them necessaries; and after the death of such idiots he shall render the estate to the heirs: in order to prevent such idiots from aliening their lands, and their heirs from being disinherited. (476) By the old common law there was a writ de idiota inquirendo, to inquire whether a man be an idiot or not (a): which must be tried by a jury of twelve

(9) An idiot is one who from his birth has shown no signs of reason. It is rarely that any one is legally proved to be an idiot, but rather the conclusion arrived at is that he is a lunatic, or of unsound mind though not from birth.

(r) See ante, p. 29.

(8) The Lords Justices, under a recent act (30 & 31 Vict. c. 87, s. 13) exercise these powers when sitting separately.

(t) See Shelford on Lunacy, 214, 2nd edit.
(u) Flet. 1. 1, c. 11, § 10.

(x) Dyer, 302; Hutt. 17; Noy. 27.
(y) F. N. B. 232.

(2) 4 Rep. 126. Memorand. Scacc. 20 Edw. I. (prefixed to Maynard's Yearbook of Edw. II.) fol. 20, 24.

(a) F. N. B. 232.

(476) As to the history of the jurisdiction in chancery over idiots, lunatics, etc., see Parsee Merchant's Case, 3 Daly, 529; S C., 11 Abb. N. S. 209. In the several States of the Union the whole care of this unfortunate class of persons is made the subject of statutory regulation, and the statutes of the particular State should be consulted.

men: and, if they find him purus idiota, the profits of his lands and the custody of his person may be granted by the king to some subject, who has interest enough to obtain them. This appropriation of property to the use of the crown was long ago considered as a hardship upon private families: * and as early as in the 8 Jac. 1, it was under the consideration of [*84] parliament, to vest this custody in the relations of the party, and to settle an equivalent on the crown in lieu of it; it being then proposed that this and the slavery of the feudal tenures, which has since been abolished, should share the same fate (b). Yet few instances can be given of the oppressive exertion of it, since it seldom happened that a jury found a man an idiot a nativitate but only non compos mentis from some particular time; which formerly had an operation very different in point of law.

A man is not an idiot (c), if he has any glimmering of reason, so that he can tell his parents, his age, or the like common matters. But a man who is born deaf, dumb, and blind, is looked upon by the law in the same state with an idiot (d); he being supposed incapable of any understanding, as warting all those senses which furnish the human mind with ideas (e).

*

A lunatic, or non compos mentis, is one who has had understanding, but by disease, grief, or other accident, has lost the use of his reason (f). A lunatic is indeed properly one that has had lucid intervals: sometimes enjoying his senses, and sometimes not, and that frequently depending upon the changes of the moon. But under the general name of non compos mentis (which sir Edward Coke says is the most legal name) are comprised not only lunatics, but persons under frenzies, or who lose their intellects by disease; those that grow deaf, dumb, and blind, not being born so; or such, in short, as are [* 85] proved to be incapable of conducting their own affairs. To these also, as well as idiots, the king has always been guardian, but to a very different purpose. For the law always imagined that these accidental misfortunes might be removed; and therefore only constituted the crown a trustee for the unfortunate persons, to protect their property, and to account to them for all profits received, if they recover, or after their disease to their representatives. And therefore it was declared by the statute 17 Edw. 2, c. 10, that the king should provide for the custody and sustentation of lunatics, and preserve their lands and the profits of them for their use, when they came to their right mind; and the king should take nothing to his own use; and if the parties die in such estate, the residue should be distributed for their souls by the advice of the ordinary: of course now (by the subsequent amendments of the law of administration) the residue goes to their executors or administrators.

Formerly, also, there was a writ de lunatico inquirendo, upon which persons were ascertained to be lunatics, which was tried much like the writ de idiota inquirendo. These writs are now superseded by the modern methods which have been introduced and improved as experience has pointed out the most convenient and beneficial measures to be adopted. At the present time the

(b) 4 Inst. 203; Com. Journ. 1610. (c) F. N. B. 233.

(d) Co. Litt. 42; Fleta, 1. 6, c. 40. (e) In Yong v. Sant, Dyer, 56 a, it was held that one who had become deaf, dumb, and blind by accident, not having been born so, was to be deemed non compos mentis. The presumption that a person deaf, dumb, and

blind from his nativity is an idiot, is only a legal presumption, and is therefore open to be rebutted by evidence of capacity. (Chitty's Med. Jur. i. 301, 345.)

Mem.

(f) Idiota a casu et infirmitate. Scacch. 20 Edw. I. (in Maynard's Yearbook of Edw. II.) 20.

whole care of lunatics is regulated by acts of parliament (g), both as to those who are so found, after solemn inquiry or inquisition, and those who, though of unsound mind, have not been so found by inquisition, either by reason of the expectation of their recovery entertained by their friends, or from their not being possessed of any property. Both private madhouses and public *86] asylums erected for the various counties are now visited and inspected by, and subject to, the control of public officers appointed for that

[*

purpose (h).

*

When it is necessary to prove a person a lunatic, so that a proper legal control may be exercised over both his person and property, application is made to the lord chancellor, and if allowed by him (or the lord justices of the court of appeal), the inquiry is conducted by certain officers called the masters in lunacy, either with or without the assistance of a jury, according as the lord chancellor may deem fit. As soon as the lunacy has been established, a committee of the person, and another of the estate, are appointed by his lordship, and a scheme is prepared for the management of the person and estate; this, when sanctioned by the judge, regulates the maintenance of the lunatic and the management of his estate. Every change that may be requisite afterwards is only made under an order of the same high authority (i).

[*87]

*CHAPTER VI.

A SUIT IN CHANCERY.

WE will endeavour, in this chapter, to exhibit to the reader a general view of the proceedings in a chancery suit, so as to enable one who is not familiar with the course of the court to understand the principal events which take place, their effects, and relative importance; but it will not be possible, within the limits to which we are confined, to give much account of the numerous rules which require to be observed in conducting the proceedings.

of the court.

In the course of years, innumerable disputes have, as may be easily supposed, arisen as to procedure, and in order to prevent their recurrence in similar cases, General orders and also to provide for the due management of business, rules have been from time to time laid down. Some of these, called the general orders of the court, have been promulgated by the chancellor, or more recently by the chancellor and other judges, acting for that purpose under legislative authority (a). These, not having been made merely for the purpose of deciding any particular case, are binding upon all the judges. Other rules have become established as rules of practice by being laid down in the course of deciding particular cases, and adopted subsequently by other judges

(g) See the following acts :-8 & 9 Vict. cc. 100, 126 (which repealed a number of earlier acts), amended by 16 & 17 Vict. cc. 96, 97; 25 & 26 Vict. c. 111; 26 & 27 Vict. c. 110; and 28 & 29 Vict. c. 80. In these acts the word "lunatic" includes "every insane person and every person being an idiot or lunatic or of unsound mind."

(h) See the acts cited in preceding note. (i) See the Lunacy Regulation Act, 1853 (16 & 17 Vict. c. 70), regulating the inquiries and all the other proceedings; and the Amendment Act, 25 & 26 Vict. c. 86.

(a) 15 & 16 Vict. c. 86, s. 63; and 23 & 24 Vict. c. 128. See Short v. Roberts, L. R. 2

Ch. 13.

as binding precedents. In the year 1852, The Improvement of Jurisdiction of Equity Act (b) was passed, and in the year 1860, all the then existing general orders were abrogated, and a new series was issued, which consoli- [*88]

*

dated and amended the former orders. These enactments and orders, with a few subsequent acts (c) and general orders and regulations, together with a vast collection of reported cases decided upon points of practice, now constitute the law of the court.

It would be tedious, and it is unnecessary for our purpose, to give any historical account of the various proceedings, when and how they originated, and how they gradually assumed their present form. We shall, therefore, confine our description to the practice as existing at the present time.

The bill.

A suit in chancery is commenced by filing in the office of the clerk of records and writs in chancery a document called a bill (d). (477) This bill, a model of which is given in the schedule of the consolidated orders above referred to, is a petition addressed to the lord chancellor in a particular form. At the head of it appear the names of the parties to the suit, then follows an address to the person holding the great seal, the terms of which are prescribed by the court upon every change of the custody of the seal, or alteration in the style of the person to whom it is committed. The description and address of the plaintiff are then stated. After this is set forth a statement of all the facts and circumstances, and the purport, or sometimes even the words of the documents, upon which the plaintiff intends to rely. In this part is introduced any inference of law or fact which the plaintiff thinks it advisable to state, and there sometimes is added that which the plaintiff conceives will be the defence, together with the matter which he thinks sufficient to avoid such defence. This stating part of the bill is succeeded by the prayer, in which the plaintiff asks for the particular relief he thinks him[* 89] self entitled to, always (e) concluding with a prayer for general relief. The bill must be signed by counsel (ƒ). It is printed, and a printed copy is filed (g). On it there is an indorsement equivalent to a writ or command from her majesty to the defendant to cause an appearance to be entered in the court (h). When the bill has been filed, a copy of it is stamped by the clerk

(b) 15 & 16 Vict. c. 86.

(e) 21 & 22 Vict. c. 27; 25 & 26 Vict. c. 42; 23 & 24 Vict. c. 149.

(d) When the Attorney-General, as representing the crown, is plaintiff, the document filed is called an information, not being a petition. Informations are often, but not always, filed at the "relation" of some person who takes the risk as to costs. They must, however, always be sanctioned by the Attorney-General.

(e) Except when the bill is merely to obtain discovery, and not asking for any relief, a bill

which, now that common law courts have the power of interrogating parties, is comparatively rare.

(f) Cons. Order, viii. 1.

(g) Cons. Order, ix. 3. In cases where timo is of urgent importance, a written copy is allowed to be filed; but a printed copy must be filed within fourteen days afterwards. lb. r. 4.

(h) For the form of the indorsement, see the schedule to 15 & 16 Vict. c. 86; and Cons. Order, ix. 2.

(477) Under the Reformed Codes of Procedure adopted in many of the States of the Union the distinction between actions at law and suits in equity is expressly abolished, and legal and equitable relief may be asked for in the same action. The first pleading on the part of the plaintiff is the complaint or petition. See Bowen v. Aubrey, 22 Cal. 569; Dewitt v. Hayes, 2 id. 463; Bradley v. Aldrich, 40 N. Y. (1 Hand) 504; Clark v. Harwood, 8 How. 470; Danforth v. Carter, 1 Iowa, 546.

As to the mode of commencing cases in equity in Massachusetts, see Belknap v. Stone, 1 Allen, 572; in Maine, see Stephenson v. Davis, 56 Me. 73, 76.

of records and writs, which is served on the defendant; and if there be more than one defendant, such a copy is served on each. If the defendant be out of the jurisdiction, the court, upon application of the plaintiff, showing where he probably may be found, will order service upon him abroad, giving him a reasonable time to appear (i).

If the defendant, having been duly served with the bill, do not enter an appearance, the plaintiff may enter an appearance for him, so as to be able to Appearance of proceed with the suit. After the appearance of the defendant, defendant. the next step, if the plaintiff wishes, as he usually does, to examine the defendant, and thus elicit information in support of his case, is to file (k), and then serve interrogatories (1), in which the plaintiff Interrogatories. puts to the defendant such questions relative to the subject matter of the suit as he thinks proper (m).

[*90]

Answer.

*When interrogatories have been served, the defendant is bound to answer them within twenty-eight days (n), on pain of imprisonment; but the time will be readily extended on application to the court if a sufficient reason be given. The answer to the bill is the statement of the defendant made, on oath, in answer to the interrogatories; it usually constitutes the commencement of the defence to the suit: in it the defendant is bound to reply fully to every question in the interrogatories. But besides these replies, he may also state any facts which he thinks material to his defence. If he have not been interrogated, he may if he pleases, within a limited time (o), make a voluntary answer. An answer, like a bill, being an important part of the pleadings, must be signed by counsel; it is, like a bill, printed and filed. An answer is not however the only mode of defence.

Demurrer.

If any ground of defence is apparent on the bill itself, either from the matter contained in it, or from some defect in its frame or in the case made by it, the defendant may, instead of answering it, demur to it; and this is then the proper mode of defence. A demurrer is an allegation by a defendant which, admitting for the purpose of argument the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer (p). The grounds of demurrer are various; the commonest is, that, the subject of the suit is not within the jurisdiction of a court of equity, or, what is much the same thing, that there is not stated in the bill such a case as entitles the plaintiff to any discovery or relief in a court of equity: other grounds are, that the plaintiff is not entitled to sue by reason of some * personal disability, or want of interest on his part; or, although the [*91] plaintiff may have an interest in the subject-matter, and may be under no disability, and may have a good title to sue, yet that the defendant is not the proper person to be sued by the plaintiff, either from not having any inter

(i) Cons. Order, x. 7. This order has been, after much discussion, decided to give a general power to the court, as stated in the text. See Drummond v. Drummond, L. R. 2 Ch. 32. (k) The interrogatories must be filed within eight days after the time limited for appearance of the defendant who is to be interrogated. Cons. Order, xi. 2.

(7) A form of interrogation is given in schedule B. of the Cons. Orders.

(m) Usually the interrogatories follow the