The Court of Chancery is very careful to guard against the improper or unsuitable marriage of its ward, and will punish all persons aiding or abetting such a marriage without its express sanction, for a contempt. Where the marriage has been celebrated, it will not discharge the husband from commitment for the contempt, until he has made a suitable provision for the wife.1 In a flagrant case, it may express its disapprobation, not only by the punishment which it inflicts, but by framing the settlement in a manner so unfavorable to the offender, as would be contrary to the policy of the law, with reference to such instruments in ordinary cases.

would be promoted. The only approach in England to the American practice, is under the statute 1 William IV., Ch. 65: authorizing a Court of Chancery to grant leases of infant's lands, when it shall appear to be for their benefit. Vide Hoffman's Chancery Practice, Vol. 2, page 209.

1 Where the husband has married a ward in Chancery, without the consent of the Court, or her legal guardians, the Court has jurisdiction to interfere, on the application of the friends of the infant wife, even without her consent, to restrain the husband and his creditors from intermeddling with her estate, until a proper settlement is made for the support of the wife and the issue of the marriage; 6th Paige's Rep., 366.

CHAPTER XXXVI.

IDIOTS AND LUNATICS.

1. JURISDICTION OF EQUITY OVER IDIOTS AND LUNATICS.

1. What jurisdiction do Courts of Equity exercise over idiots and lunatics ?1

The jurisdiction is a branch of the prerogative of the crown, usually, but not necessarily, committed to the officer holding the

1 Imbecility of mind, whether constant from the party's birth, or the consequence of old age, or accident, may, though not strictly amounting to lunacy, be made the foundation of a commission, in the nature of a writ de lunatico inquirendo; 8th Ves., 65; 19th Ves., 286; 4 Russ., 182. The same doctrine was recognised by Chancellor Kent, in the matter of Barker, 2nd J. C Rep., 232; and by the Court of Appeals of Kentucky, in Naylor vs. Naylor, 4th Dana, 343. "To constitute, however, a case of unsoundness of mind, which will justify the Court in taking the person and property of a freeman into its possession, and committing them to the custody of another, his mind must be so far impaired that if it had never been elevated above that state of capacity, from his birth, it would have constituted a case of idiocy. But mental imbecility may exist in various degrees between absolute idiocy, and the ordinary state of mental capacity, as it exists among mankind in general. To authorise the Court, therefore, to act on an inquisition, upon the presumption, that the mind had become so far impaired as to resemble a state of idiocy, the jury should, in terms, find that he is of unsound mind, and mentally incapable of governing himself, or managing his affairs." Chancellor Walworth, in the matter of Morgan, 7th Paige R., 236.

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great seal; from whose orders, there lies an appeal directly to the King, in council. Upon a proper petition, the chancellor, acting under the special warrant of the crown, appoints commissioners, who summon a jury to try the fact of lunacy. As the determination of this question affects the liberty of the subjeet, the inquisition is always made by a jury. If the party is found a lunatic, by the inquisition, it may still be avoided by a traverse, a right, which under the II. Edw., 6, may be exercised by all persons aggrieved. On a traverse, the record goes into the King's Bench, which either gives judgment, or grants a new trial. On the return of the inquisition, the custody of the lunatic's person and estate devolves on the crown; and the chancellor appoints committees to take care of either or both. The chief consideration in the choice of the committee of the person, is the comfort of the idiot or lunatic; and with reference to the committee of the estate, that proper securities are taken against its mismanagement. As a general rule, the committee

2

In the matter of Wendell, 1 J. C. R., 600, it was held, that Chancery having the whole jurisdiction in regard to lunatics and idiots, will direct the course of proceeding on the traverse of the inquisition returned, in such manner as may be most useful and expedient, so as best to inform its conscience, and afford the safest conclusion as to the fact of lunacy. The lunatic may be brought into Court, after the inquisition is returned, and an enquiry be made by inspection, as to the fact of his lunacy, or an issue be awarded, to ascertain by a verdict at law, its existence or continuance. The most usual and proper course is, to have the issue made up and prepared for trial, under the direction of the Court, instead of delivering over the record and traverse, after the Attorney General has joined issue thereon, as practised in England, under the Statute of II. and III. Edw., 6. In the matter of Tracy, 1 Paige, 580, the Chancellor said, that it was not a matter of course in New York, to allow an inquisition to be traversed, but that it rested in the sound discretion of the Court.

2 The comfort of the lunatic receives so much consideration from the Court, that though it can never desire to see creditors defrauded of their just demands, no order will be made, for the payment of a lunatic's debts, out of funds in Court, unless it clearly appears that a sufficient maintenance will remain, or is securely provided for him. Until the 43d year of George III., the Chancellor of England, even in his prerogative capacity, had no authority to direct the sale of a lunatic's es

cannot enter into any transaction or contract, respecting the property of the lunatic, without the authority of the Court.

tate for the payment of his debts; and even since the enactment of a statute, in that year, giving such power to the Chancellor, he will not take cognisance of a bill to establish the indebtedness, when it is a question of controversy, or even of reasonable doubt, but always refers the decision to a common law tribunal, where the appropriate remedy would have been in such Court, had there been no lunacy; 12th Ves., 384. In Kentucky, it has been held, that Courts of Chancery have no authority to decree a sale of any portion of the real estate of a lunatic, for payment of his debts; 2 B. Monroe's Rep., 308. It is otherwise in New York; 2 J. C. R., 242; 7 Paige, 312. The crown, it is said, takes a very different interest in the estate of an idiot, from that which it can claim in the estate of a lunatic. An idiot, according to judicial defininition, is one, who from his nativity, by a perpetual infirmity, is non compos mentis; and the entire profits of the estate, both real and personal, of such a person, during his life, and subject to a provision for his maintenance, are at the absolute disposal of the crown. But of the estate of

a lunatic or non compos, who once possessed sound memory, "the King shall only have the custody, and therewith maintain the lunatic and his family, not taking any part of the profits to his own use," and upon the recovery or death of the lunatic, shall restore the whole of the property, and all surplus property, derived therefrom, in the first case, to the party himself; in the latter alternative, to his heirs, executors, or administrators; Hoveden's note to 1 Ves., jr., Exparte Bromfield, 463.

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CHAPTER XXXVII.

MARRIED WOMEN.

1. HOW CONTRACTS BETWEEN HUSBAND AND WIFE ARE VIEWED IN

A COURT OF EQUITY.

2. MANNER IN WHICH A FEME COVERT MAY ACQUIRE A SEPARATE

PROPERTY.

3. POWER OF A FEME COVERT OVER HER SEPARATE PROPERTY.

4. WIFE'S EQUITY TO A SETTLEMENT.

5. WHEN COURTS OF EQUITY WILL ALLOW ALIMONY TO A MARRIED WOMAN.

1. In what light do Courts of Equity regard contracts between husband and wife?

Courts of Equity have greatly meliorated the harsh and absurd rules of the common law, in reference to married women. The fiction that by the marriage union they become one person for all purposes; that all previous contracts between them, to be performed during coverture, are thereby extinguished; and an absolute incapacity to enter into any future agreement in duced, is controlled, wherever it would defeat the ends of jus. tice. Thus, a bond given by a husband to his wife, before

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1 A wife may contract with her husband, even by parol, after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a bona fide and valuable consideration; and she may have that property limited to her separate use. This was so held in the case of Livingston vs. Livingston, 2nd Johns. Chy. Rep., 537; and as