
    William Niblo, Plaintiff, v. George Harrison (by his guardian ad litem) et al., Defendants.
    1. Where, pending a suit brought by a creditor to reach the assets of his debtor, the latter is, by proceedings previously commenced in another Court, adjudged to be an habitual drunkard, and a committee is appointed of his estate, the Court in which the former suit is pending cannot properly proceed to final judgment.
    2. The plaintiff in such case, if he commenced his action in good faith, may be permitted to retain it; but his proceedings therein should be stayed, until the reformation of the defendant and the discharge of his committee, if such event should occur.
    3. If a Receiver has been appointed, he should be discharged, on paying the moneys in his hands into Court.
    4. It seems, that if the suit were in the nature of an action at law, the plaintiff might be permitted to proceed to judgment, upon which he may apply to the Court having jurisdiction of the estate to require payment from the committee.
    Special Term,
    March, 1863.
    Before Barbour, J.
    . This action, which was in the nature of a creditor’s bill, was brought by the plaintiff against George Harrison, Henry Harrison, as the Receiver of the estate and effects of the said George Harrison, Horace B. Olaflin, William H. Mellen, Hathaniel Miller, Daniel H. Oonkling and Henry Stone, the latter of whom were judgment creditors of the defendant, George Harrison.
    The complaint alleged that the plaintiff had obtained a judgment against the defendant, George Harrison, upon which some forty parcels of land in the City of Hew York, belonging to the judgment debtor, were sold by the Sheriff, on execution; that such debtor had no further property liable to sale on execution, and that the execution had been returned unsatisfied as to a considerable amount, which still remained due upon the judgment; that the defendant, Harrison, was still in the possession of the premises, and in the receipt of the rents, amounting to some twenty or thirty thousand dollars a year; and that several months of the time fixed by law as the period within which the property might be redeemed from the Sheriff’s sale was yet unexpired; and the plaintiff prayed for the appointment of a Eeceiver of the rents, with directions to apply the same, or so much thereof as might be necessary, to the payment of the balance remaining due upon the judgment.
    Before the action was brought, proceedings had been instituted in the Supreme Court, by petition, presented by the friends of. the. defendant, George Harrison, but without the actual knowledge of the plaintiff in this action, for the purpose of having Harrison declared an habitual drunkard, and obtaining the appointment of a committee; upon which proceedings a commission de inquvrendo had been issued, and so far executed that a Jury-had found the defendant to be an habitual drunkard.
    After the commencement of .this action, and before an answer was put in, the report of the commissioners, in those proceedings, was made and confirmed; and, thereupon, a committee of the drunkard were appointed, who duly qualified, and entered upon the discharge of their duties. An application was then made to one of the Justices of this Court, founded upon an affidavit setting forth the foregoing proceedings in the Supreme Court and under its order, for the appointment of a guardian ad litem to defend this suit for and on behalf of the defendant Harrison, and, also, that a Eeceiver of the rents, pendente lite, be appointed; which application was granted.
    The answer interposed by the guardian ad litem, so appointed, set up all the above proceedings in the Supreme Court, including the acceptance of the trust by the committee. Ho answer was put in by the defendants, the judgment creditors.
    Upon the trial at Special Term, allthematerial facts alleged in the complaint and answer, respectively, were fully proven, and the case was argued and finally submitted for judgment.
    
      John Townshend, for the plaintiff.
    
      B. F. Dunning, for the defendant Harrison, and his guardian ad litem.
    
   Barbour, J.

As-between the plaintiff and the defendant Harrison, considering the latter as of sound mind and unembarrassed by the proceedings before the Supreme Court, the plaintiff, is* doubtless, entitled to the relief he asks for in his complaint. There is, certainly, no reason why a. judgment debtor should be permitted to receive and enjoy the rents of real estate, to the amount of thousands of dollars; after his legal estate in the premises has been divested by a sale on execution, to the exclusion of creditors whose judgments remain unsatisfied. But the question here is-, whether the defendant has such a standing- before the Court, or is so represented in this action by the guardian who has been appointed to defend his interests, as will authorize the pronouncing of a judgment against him.

Under the old system of jurisprudence in this State, it was well settled, that, upon and by the appointment of a committee, on the return of a commission de pnquvrendot all the estate of the lunatic dr habitual drunkard, together with the guardianship - of his person, became and was wholly vested in the Court making such appointment, and that the drunkard or lunatic was, thenceforth, incapable to make a valid contract, or to transact any business whatever; that no person other than the committee would' be allowed to meddle with the property without their consent, and that any one, even a Sheriff with an execution in his hands, would be punished for contempt if he interfered with it; that no suit in equity or action at law could be brought against the drunkard or lunatic subsequent to his being so declared, nor, except upon leave granted by the Court of Chancery on petition, against the committee; and that, where an action at law had been brought against a-lunatic before the report of the commissioners, but after the filing of the petition, such action would be stayed by injunction, if brought to the notice of- the Court of Chancery. (Matter of Heller, 3 Paige, 199; Matter of Hopper, : 5 Id.; 489.) Where, however; the progress of such action was not stopped by injunction, but the same proceeded regularly to judgment, the judgment was held not to be irregular and void; although, as we have seen, the creditor would not be permitted to enforce it without leave of the Court, granted upon petition. (Id.; Robertson v. Lain, 19 Wend., 649; Clark v. Dunham, 4 Denio, 262; Brown v. Betts, 13 Wend., 29.)

Although many of the distinctions between suits in equity and actions at law are now abolished, those rules in regard to lunatics and habitual drunkards are still as operative and binding as when first promulgated, for the reasons upon which they were founded remain unchanged.. If* therefore, the action now under consideration was in the nature of an action at law under the former system, the plaintiff might, probably, be entitled to recover his judgment ; a judgment, to be sure, that he could not enforce by execution, but which would enable him to apply, by petition, to have it paid by the committee. The case in hand, however, is not an action at law, but is, entirely, a suit in equity by which it is sought to obtain the payment of the plaintiff’s judgment, through the equity powers of the Court, after its power as a law Court has become exhausted upon its final process of execution; and the judgment prayed for is, in few words, simply that a Receiver, to be appointed by this Court, shall take out of the hands of the committee, the property which has become vested in the Supreme Court, by the proceedings against the defendant as an habitual drunkard, and apply it to the payment of this claim.

I have no hesitation in deciding that this Court cannot, with propriety, render a final judgment in this action, as the matter now stands. If there was no other reason, the rules of comity, always observed toward each other by Courts of concurrent jurisdiction, would prevent the granting of a decree, as prayed for; while, on the other hand, it seems equally clear that the complaint should not be dismissed, but the plaintiff ought to be permitted to retain Ms suit, commenced* as it was, in good faith, so, that- he may proceed to judgment against the defendant, upon Ms. reformation and the discharge of his committee, in case that event shall occur.

An order must, therefore, be entered, directing the Eeceiver, who has been appointed pendente lite, to pay into Court, to the credit of this action, all the moneys which shall have come to his hands, as Eeceiver herein, less his commissions; and that, upon such payment, the order appointing him be set aside and vacated; and also providing and directing that all further proceedings in this action be stayed, until the committee, so appointed by the Supreme Court, shall have been discharged, or until such further order of this Court, in the premises, as may be made, upon the motion of either party, on notice to the other.

Order accordingly.  