
    In the Matter of Brown.
    The New York Superior Court will not take jurisdiction to issue a commission of lunacy.
    The nature and extent of the power, to take the persons and property of lunatics and habitual drunkards into judicial custody, reviewed.
    (Before Hoffman, J.)
    At Special Term; Dec., 1854.
    Application for a writ in. the nature of a commission & luná-tico inquirendo.
    
    
      P. Y. Cutler for petitioner.
   Hoffman, J.

The question, whether this court has jurisdiction to issue such a commission as is sought, and jurisdiction in a number of similar cases, distinct from equity authority in an action, has been found to be so novel and unsettled that it has engaged the consideration of most of the Judges.

The-custody of lunatics was not vested in the English Court of Chancery as such. • It was lodged in the crown. That branch of the prerogative might be exercised by any officer the king thought fit. It was ordinarily delegated to a great officer of state, but not necessarily to the Keeper of the Great Seal. A warrant under the sign manual was usually delivered to the lord chancellor or lord keeper upon his coming into office. (4 Bro. Ch. Pr. 228; Shelford on Lunacy, 157.) But the right of the crown to the management and control of lunatics and their estates did not commence until the finding of the office or inquisition of lunacy. (8 Rep. 170 b.) . And the method of ascertaining whether the party was a lunatic, was a petition to the lord chancellor, suggesting the lunacy, and verified by affidavits. He then issued a writ to the sheriff of the county where the party resided, to try by a jury, and personal examination, whether the suggestion was true or not. It was the ordinary writ upon a supposed forfeiture to the crown. (Natura Brevium, 581.)

As rights accruing to the crown, by forfeiture or other means, ■were inquirable into by commission as well as writ, tbe former superseded tW latter in practice. (Ex parte Soutbcot, Ambler, 111.) Botb issued under tbe great seal from tbe common law side of tbe Court of Chancery, and were returnable to tbat court. (Ibid.)

In Sherwood v. Sanderson, (19 Ves. 285,) tbe lord chancellor says, tbat tbe application is made to tbe lord chancellor, not as chancellor, but as tbe person baying, under the especial warrant of tbe crown, tbe right to exercise tbe duty of tbe crown, to take care of those who cannot take care of tbemselyes. Tbe application has therefore no concern with any thing passing in tbe Court of Chancery; but is made to tbe person bolding tbe great seal in whom tbe crown has usually thought proper to yest this jurisdiction, as it would be made to any other person baying tbat authority. (See also Lord Redesdale, Ex parte Fitzgerald, 2 Sch. & Lef. 435.) Justice Story, (Eq. Jur. § 1,364, n.) sums up bis yiew of tbe origin of tbe jurisdiction thus: “ Tbe truth seems to be, tbat tbe lord chancellor acts merely as delegate of tbe crown, and exercising its personal prerogative as parens patrios in chancery, and not as a Court of Equity.”

And M. Eonblanque, in bis learned note upon Mr. Hargrave’s ■ observations, expressly considers tbe custody of lunatics as a delegation of a power conferred by Parliament; noticing tbe fact tbat at common law tbe custody of lunatics and idiots, at least such as held lands, was not in tbe king, but in tbe lord of tbe fee. (2 Eonblanque, 230, n.) To some extent, at any rate, it is inaccurate to say tbat tbe custody of tbe estates of lunatics existed before tbe statute- of Edward, and was independent of it. (Ambler, 707; 2 John. Cb. R. 237.)

Upon our revolution, tbe people succeeded to tbe duties and prerogatives of tbe crown; and at a very early period they expressly delegated tbe authority in this matter to tbe chancellor. Tbe successive statutes were substituted for tbe king’s sign-manual, to each lord chancellor or lord keeper. It is on this basis tbat tbe jurisdiction in our state is most clearly and safely vested, and tbe express delegation of tbe authority of tbe state as to tbe custody of tbe person and estate of lunatics, implied tbe right of judicially ascertaining who were such; and tbe course of proceeding almost necessarily followed tbat of tbe English chancery.

The statutes of Edward, chs. 9 and 10, afford the model on which our statutes have been framed. The first of these was the act of February 6, 1588, (2 Greenl. 25,) enacting that the chancellor should have the care, and provide for the safe-keeping, of all idiots, and of their lands and tenements, goods and chattels. (§ 1.) The second section gives the care and custody of persons and estates of lunatics to the chancellor, in like manner, and very nearly in the words of the statute of Edward.

The statute of the 10th March, 1801, embodied these two sections into one. Such was also the enactment in the revision of 1813. (1 Rev. Laws, 147, § 1.) The Revised Statutes of 1830 adopt it, with slight change of language. (2 Rev. Stat. 52, § 1.)

The circuit judges, under the Constitution of 1822, and the Revised Statutes of 1830, were vested (in cases within their circuits) with all the original jurisdiction and powers which now are, or hereafter may be, vested in the chancellor, in all causes and matters in equity, and in all causes or matters of which the cognizance is or shall be vested in the chancellor by virtue of any statute (2 Rev. Stat. 108, § 2.)

The act of 1831, appointing a vice-chancellor, gave to him the same powers in the first circuit, and under this act the vice-chancellor issued commissions of lunacy. (3 Edw. Rep. 380.)

As it is admitted that the jurisdiction was not in the chancellor, by reason of his being the head of the Court of Chancery, it follows, that the jurisdiction of the vice-chancellor and circuit judges was conferred by that clause of the act giving them power, “ in all causes or matters of which the cognizance is or shall be vested in the chancellor by virtue of any statute.”

It results, also, that the establishment of a court with general equity jurisdiction would not confer this particular power. This would also result from the general doctrine, that a newly created court can have no other jurisdiction than such as is expressly conferred. A new court cannot prescribe. (4 Just. 200.)

The original jurisdiction of the Superior Court, conferred by the statute of 1828, and as varied or enlarged by any statute down to 1847, confessedly does not extend to such a case.

By the Constitution of 1846, (art. 6, § 5,) it was provided, that the legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity as they have heretofore possessed; and by the 14th section, inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities. By the 12th section of article 14, the Superior Court was to remain, until otherwise directed by the legislature, with its then existing powers and jurisdiction.

It is important, in order to determine the present question, to advert to the legislation in respect to habitual drunkards. The first act upon that subject was that of the 10th of March, 1821, entitled, “ An Act concerning the estates of habitual drunkards.” (Laws of 1821, ch. 119.) It was declared to be lawful for the Court of Chancery of the state to exercise a jurisdiction and power in regard to the estates of persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness, similar to the jurisdiction and power exercised by'that court in regard to the estates of lunatics.

The second section provided that the overseers of the poor might make application to the chancellor for the exercise of such power. By the third, a mode of revising the action of the overseers by a jury before a justice of the peace was pointed out.

Under this statute, the court had no power over the person of the drunkard, but only over his estate. This was so held in ex parte Lynch, 5 Paige, 120. By the Revised Statutes, the power of the court was extended to the person as well as the estate, and its authority was placed precisely upon the same footing as over lunatics and idiots. It was declared that the chancellor should have the custody of all idiots, lunatics, persons of unsound mind, and habitual drunkards, and of their real and personal estate; and he was to provide for their safe-keeping and maintenance out of their real and personal estates. (2 Rev. Stats. 52, § 1.) This statute, the chancellor observed, gave the court a perfect control over the person of an habitual drunkard, which it could exercise through a committee. (Ibid.)

The statute of 1880 gave the like jurisdiction to the Court of Common Pleas of the county, as to the chancellor, where the drunkard’s property was less than $250. In vacation, the application might be made to the first judge of the county. There was an appeal to the Court of Chancery. (2 Rev. Stats. 52, §§ 3, 4, 5, 6.) Other sections provided for the mode of obtaining a sale or mortgage of the real estate to satisfy debts. (§§ 11, 12, 13.) This statute formed a. complete and uniform system upon the whole • subject, down to the 1st of March, 1856, when the third edition of the Revised Statutes was published. In defining the jurisdiction of the Court of Common Pleas, the Revised Statutes, (2 Rev. Stats. 208,) declared, among other things, that they should have and exercise the power and jurisdiction conferred upon them by law, over the persons and estates of habitual drunkards,

Down to this period, the Courts of Common Pleas had no jurisdiction as to lunatics, and a defined jurisdiction as to drunkards, nearly coextensive with that of the chancellor, where the property was less than $250.

The Constitution of November, 1846, (see article 6, § 14,) provided for the election of a county judge, who should hold the county court, and that the county court should have such jurisdiction in their county as the legislature should prescribe.

Then followed the Judiciary Act of May 12,1847, and the 29th section of article 4 provided, that the county courts should have jurisdiction to hear and determine all matters and proceedings especially conferred upon, and heretofore triable and cognizable by Courts of Common Pleas of the several counties.

It appears to me, that the power of the Courts of' Common Pleas as to drunkards, vested in the county courts by force of this provision.

Then, in the 31st section, it was provided, that the said county court “ should have equity jurisdiction in suits, and proceedings in the following cases,” among them — “ for the care and custody of lunatics and habitual drunkards residing in such county.”

The clause as to drunkards was, as I view it, superfluous. What extent of jurisdiction was then given by the words as to lunatics ? It is to be,observed that it is a legislative grant of new jurisdiction to a tribunal of limited powers created by statute, and must be construed strictly. I apprehend it could not possibly be extended beyond the care and custody of the person.

The separation between the power over the person and over the estate, is strikingly shown by the case before Chancellor Wal-worth, in 5 Paige, 120, befoye noticed, where he held, that the statute of 1821 only gave him power over the estate. And in England it is quite common to have separate committees, espec-' ially if the lunatic is a female; when the committee of the person is generally one of her own sex; and a male for the committee of the estate. (Shelford, 138, &c.)

The 21st section of the amended Judiciary Act of December, 1847, enacted, that the Superior Court and Court of Common Pleas of the city and county of New York, shall, respectively,* have and possess the same equity jurisdiction which is conferred upon the several county courts of the state, by § 31 of the chapter referred to, (the Judiciary Act,) or by any other act. See also the 22d section.

At this period, then, the Superior Court may be considered as having jurisdiction as to the person, but none other.

The Code of April, 1848, provides, first, that the courts enumerated (among them this court) shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act. (Title 1, § 10.)

. The 29th section of the same Code, repealed all statutes then in force, defining or conferring the jurisdiction of the county courts so far as they conflicted with that act; and declared, “ that those courts should have no other jurisdiction than that provided in the next Section.” The 30th section then proceeded to enumerate the cases in which the county court should have jurisdiction, and among them is the authority as to idiots, lunatics, and drunkards.

But a marked distinction between the provisions of the Code and those of the act of 1847, must be noticed. The whole enactment of the latter was, that the county court should have equity jurisdiction “ in a suit or proceeding for the care and custody of lunatics and habitual drunkards residing in such county.” .But in the Code the provisions are, first, by subdivision 8 of section 30: The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard residing within the county,” and next, by subdivision 6: “ The sale, mortgage, or other disposition of the real property, of an infant or a person of unsound mind, situated within the county.”

The jurisdiction expressly conferred by the Code upon this court, does not include the power in question. The 33d section read in connection with the 123d, bestows jurisdiction in certain enumerated cases where the cause of action shall have arisen, or the subject of the action shall be situated within the county, and in the other cases specified, of personal residence or the service of a summons -within the same. These actions are enumerated in prior subdivisions of section 128. Among them is an action for partition and for the foreclosure of a mortgage. But this express delegation of power is in actions, and relates to actions in the legal sense, — between contesting parties, — and as distinguished by the Code from special proceedings.

The legislature in this provision has selected two of the cases of equity proceedings from the 31st section of the act of 1847, and gives this court authority in those cases by express enactment. It omits the other cases, such as admeasurement of dower, sale of infants’ estates, and the care of lunatics. The argument that this amounts to an implied exclusion of such cases is very strong.

The Court of Common Pleas was placed by the 33d section of the Code in almost precisely the same situation as this court, in regard to jurisdiction, expressly or by implication conferred. The judiciary act, as amended, had placed each court in a similar position as to its authority in the present case. Yet it was deemed advisable or necessary to pass an act on the 12th of April, 1854, declaring that the Court of Common Pleas has power and jurisdiction of the following proceedings': to remit fines, &c.; and to exercise all the powers and jurisdiction now or hereafter conferred upon or vested in the said court, or in the county courts in their counties, and the powers and jurisdiction which were vested in the Court of Common Pleas for the city and county of New York, before the enactment of the Code of Procedure, passed April 12, 1848.

By this express enactment, all the jurisdiction given to county-courts by the 30th section of the Code, is now vested in the Common Pleas. It is true, the language pf the act is a declaration that “ the said court has power and jurisdiction to exercise all the authority,” &c., — but even supposing the phraseology has been intentionally and technically used, it is too slight a ground on which to imply our own authority. - ,

It is clear, that if this court possess any jurisdiction, it could only be to issue the commission and appoint a committee of the < person. We could do nothing as to the estate, and a very inadequate power would thus be vested in us.

The result of my examination is, that at least the point of jurisdiction is, even as to the person, so doubtful as to warrant our refusal to attempt its exercise in a matter where questions of title, as well as other serious consequences, may depend upon its existence, and when the most ample and sure relief is open in other tribunals.

Application denied. 
      
       What jurisdiction is the legislature competent to' confer, on the County Courts? Vtde Kundolf v. Taalheimer, et al,, 2d Kern. 593.
     