
    Berry vs Rogers.
    ChANOERY.
    
      Case 103.
    Error to the Bath Circuit.
    Jurisdiction. Lunacy. Parties in chancery r
    
    
      April 30.
    The case stated.
    In suits in equity, affecting the Tights of lunatics, they are not always indispensable parties, though they may 'be proper defendants.
    In such case, •where the lunatic is a necessa'ry party on demurrer sustained, leave should be given to amend and not dismiss absolutely.
    Courts of Chancery in Ky; have no authority to decree a sale of any portion of the estate of a lunatic to pay his debts, and the committee of lunatics have no Interest in their property, they are merely curators.
    
    The Chancellor’s power in N. Y.
   Chief Justice Robertson

delivered the Opinion of the Court.

f/. This is a bill in chancery, filed against the committee of a lunatic, for a decree upon a covenant dated before the occurrence of the lunacy, for paying all damages that had resulted from the shooting of a slave of the complainant’s intestate.

The .Circuit Court sustained a demurrer to the bill and thereupon dismissed it absolutely.

Had the omission to make the lunatic a co-party with his committee, been the only objection to the bill, we should not doubt that the decree was erroneous; because, 1st, in a suit in equity, in personam, the lunatic should not be deemed an indispensable, though he may be a proper defendant: Executors of Brashear vs Van Courtland, (2 Johnson’s Chy. Repts. 245.) And, 2ndly, if the lunatic be, in such a case, a necessary party, the Circuit Judge ought to have given leave to amend after hearing the demurrer, and it was also erroneous to dismiss the bill absolutely for want of parties: 8 Vezy, 398; 11 Ib. 72; 3 Cranch, 220; 3 Bibb, 314.

But there is, we apprehend, a more radical objection to the bill—an action in a court of common law was the only appropriate remedy.

The committee has no interest in the property of the lunatic, he is curator merely. And although, under the statutory law of this State, a court of equity is charged with a supervision and ultimate control of the estates of lunatics, in the custody of their committees, so far as may become necessary for maintenance, still our local law vests in a Chancellor no authority to direct the sale of any portion of such estate for payment of the lunatic’s debts.

A statute of New York empowered the Chancellor to order a sale of the lunatie’s estate for paying his debts; and moreover, provided that it should not be alienated otherwise than by the Chancellor’s order or permission. Chancellor Kent, therefore, decided that, in.that State, the estate of a lunatic, in his committees hands, was placed by law under the power of the Chancellor, in trust for his creditors, as well as for maintenance; and that, as it could be alienated only with the consent of the Chancellor, a creditor’s remedy for his debt was in equity and exclusively there: Brashear vs Cortlandt, (2 Johnson’s Chy. Repts. 401.)

And in England, since the 43d year of George III.

By the common law the Chancellor had no jurisdiction to assess damages for a breach of covenant, or for a tort, or even to establish a controverted debt, where a lunatic is a party, and so the law remains in Ky.

Apperson for plaintiff; Morehead fy Reed for defendant.

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 estate for the payment of his debts; and even since the enactment of a statute, yn that year, giving such power to the Chancellor, he would not take cognizance of a bill to establish the indebtedness when it was a question of controversy, or even reasonable doubt, but always deferred the decision to a common law tribunal in every qase in which the appropriate remedy would have been in such Court had there been no lunacy: Ex parte M’Dougal, (12 Vezey, 384.

And it is undeniable that, according to the common law, equity has no jurisdiction to assess damages for a breach of covenant or for a tort, or even .to establish a controverted debt, merely because one of the parties had become a lunatic.

The law here, as to remedies against lunatics, is just what it was in England prior to the 43d year of George III. And, according to that law, lunacy did not affect the remedial jurisdiction of Courts: Shelford on Lunatics, passim.

As our Legislature has not seen fit to change that law, we, whose power is only administrative and expository, must decide that, in this case and in all such cases, a court of equity has no jurisdiction, however eligible or useful such a jurisdiction might be deemed to be.

Consequently, the decree of the Circuit Court is affirmed.  