
    *HARTFORD COUNTY,
    FEBRUARY TERM, 1859.
    Present, ■ Storks, O. J., Hinman, Ellsworth, Sanford and -Waldo, Js.
    Edwin D. Litchfield and others; Appeal from Probate.
    A judgment was recovered in tlie state of Massachusetts against a lunatic residing in this state and under a conservator appointed here, upon personal service made upon the lunatic in Massachusetts, for goods sold to him in the state of New York, by a party who did not know at the time of the sale that he was a lunatic, but knew when the suit was brought that he was such, and that he was under a conservator, and also that he had sufficient property in this state. The goods were fairly sold to him, and he had the benefit of them, and had also sufficient capacity to understand the transaction ; but when the service of the writ was made upon him, he had not sufficient capacity, by reason of insanity, to understand his rights and duties as a party sued, and did not appear in court, nor did any one in his behalf, nor was a guardian ad litem appointed. In taking judgment, a payment of §50 made by him after he was sued, was not credited in the account. The lunatic died soon after, and the creditor presented his claim for allowance to the commissioners upon the estate, such presentation being of both the judgment and the original account. On an appeal from the decision of the commissioners rejecting the claim in both its forms, it was held,— 1. That «the judgment, as such, could not equitably be enforced [ *12S ] against the estate of the lunatic; 2. That equity, in interposing against the judgment, would require that justice be done to the creditor, who, in the circumstances, was equitably entitled to payment of whatever was due upon the account; 3. That the superior court, exercising equitable as well as legal jurisdiction in adjudicating upon the claim, ought to reject the judgment and allow the account.
    Appeal from the report of commissioners on the estate of James Ives, deceased, disallowing a claim of the appellants. The case was referred to an auditor, who made a special report of the facts.
    The deceased was a resident of Suffield, in the county of Hartford, and died in January, 1856. On the 19th day of April, 1854, the appellants, residents of the state of New York, brought a suit against him to the court of common pleas, for the county of Bristol, in the state of Massachusetts, upon the claim hereinafter described; attaching, in the suit, a quantity of oil-casks belonging to him, and service of the writ being made on him personally, at New Bedford, in said county, on the 20th day of April; and at the next term of the court obtained judgment against him, by default, for the sum of $949.05, damages, and $9.77, costs of suit; in the obtaining of which judgment all necessary formal proceedings were had, to make the same a valid judgment under the laws of the state of Massachusetts.
    Afterwards, on the 23d of January, 1855, the appellants brought an action of debt on this judgment, to the superior court of this state,-at its session then next following in Hartford county, in which real estate belonging to Ives in this state was attached, and personal service made on him, and which was pending at the time of the death of Ives; and costs had at that time accrued in the suit, in favor of the plaintiffs, to the amount of $67.74.
    The claim of the appellants, as presented to the commissioners on the estate of Ives and by them disallowed, consisted of the above judgment, with interest thereon, and the costs that had accrued, as above stated, in the action of debt on the judgment, and also of the original account on which the judgment *was founded, amounting at the time the judg- [ *129 ] ment was rendered to $949.05, with interest from that date. The claim was presented-in both these forms before the auditor.
    The account on which the judgment was rendered, was for oil-casks, sold by the appellants to Ives, in the city of New York, in the years 1852 and 1853, to the amount of $822.83 ; and a few other items of small amount, for cash lent, storage of casks, <fcc., amounting to $48. For the former items, three notes had been given by Ives, all on demand, and at the times when they bear date : one dated Dec. 14, 1852, for $96.84 ; one dated Jan. 18, 1853, for $420 ; and one dated April 13, 1853, for $305.99; none of which had been 'paid when the judgment was rendered. It was found by the auditor that Ives had the benefit of all the articles thus charged to him by the appellants, and that the casks so charged were sold to him at fair prices; and that the account was justly due from Ives to the appellants at the time when the suit was brought, unless rendered otherwise by facts hereinafter to be stated. It was also found that the casks attached by the appellants, in the suit on which the judgment was rendered, were sold under proper legal proceedings for that purpose, and the net proceeds indorsed on the execution issued on the judgment, and that the same amounted to $170 ; also, that Ives paid to the appellants, on the 20th day of April, 1854, the sum of $50, which, by mistake, was not deducted from the amount for which the judgment was taken.
    The appellees claimed that the judgment was of no validitv, and that the account was not justly due from Ives to the appellants, because that, during all the time covered by the transactions, Ives was insane, and incompetent to make the contracts in question or to understand his rights and duties in court, and because he was during all the time under the charge of a conservator. The evidence offered by them in support of this claim was objected to by the appellants on the ground that the judgment could not be thus attacked, and was received [ *T30 ] by the auditor subject to the objection. *On that evidence the auditor found that Ives, from the year 1836 down to his death in January, 1856, was partially insane, that he had been, at the commencement of that period, confined in the Insane Retreat at Hartford, for about twelve months, asan insane man, and had been dismissed at the end of that time without being cured; that his insanity continued without amelioration, and'with gradual increase, down to his death ; that it was of a harmless kind, manifesting itself in extreme eccentricities and partial loss of memory, and not in acts of violence towards himself or others ; that he was regarded by his family and friends as entirely disabled from managing his property, (of which he had at the time, principally in real estate, situated in Suffield, about $4,400 in value;) and that in the year 1838, his son, John Ives, was legally appointed, by the county court for Hart-. ford county, his conservator, and assumed the charge of his property, after which appointment he took no further care of his property. It appeared by the record of the appointment of the conservator by the county court, which was annexed to the report, that the court found the fact that Ives was at that time insane. It was found, however, that from a time soon after the appointment of the conservator down to a few months before his death, Ives lived almost constantly away from home, generally at Springfield, in the state of Massachusetts, and carried on to a considerable extent the business of buying up old oil-casks and forwarding them to Boston, New Bedford, and other markets ; that he had naturally a great fondness for bargaining, and in carrying on this business seemed to retain his original shrewdness ; that he used to make his purchases at the city of New York, and in various places in the country; that he kept himself familiar with the market prices in the different places where he purchased and where he sold; that he. forwarded the casks by railroad or water, with judgment and economy, and sometimes accumulated at his market from 1200 to 1500 casks, and frequently sold from $200 to $400 worth of them at a time, making his purchases and sales at reasonable prices; and it was found that he had intelligence enough to understand *this business and all the contracts which it ordinarily [ *131 ] involved, and in all the transactions with the appellants, upon which their account was founded, was able to understand, and did understand, the contracts which he made ; but that in any transactions aside from those ordinarily pertaining to the business which he was carrying on, he was incapacitated for a proper understanding of them and for the management of ordinary business, and that, at the time when he was sued by the appellants, in New Bedford, as before stated, he had not any adequate understanding of his rights and duties as a party to a cause in court, and that this incapacity was caused by insanity; and that no guardian ad litem was appointed over him in the suit.
    The conversator took all necessary care of the property of Ives, from the time of his appointment to that of the death of the latter, but during all that time little or no care of his person, allowing him to go where he pleased, though knowing generally that he was engaged in the business of buying and selling oil-casks in other states. The family of Ives, however, which remained in Suffield, and the conservator, often endeavored to persuade him to stay at home, but he refused to do so, and they thought it not best to use force to detain him. Neither the conservator not the family took any measures to ascertain where or with what persons he was transacting business, or to give any notice in such places or to such persons of his supposed insanity.
    It was found that, at the time when the account was made by Ives with the appellants, they did not know that he had a conservator, or that he was claimed to be insane, and did not suppose him to be insane; but that, when the suit was brought by them in the state of Massachusetts, as before stated, they knew that he was under a conservator, and that he was claimed by his famity to be insane.
    The auditor found the amount due, if the judgment was allowed, with' the costs in the action brought upon it, (after deducting the two items of $50 and $170,)_to be $983.13 ; if the judgment was not to be allowed, but the account was allowed, that the amount due was $909.35 ; and if the court should [ *132 ] *be of opinion that neither the judgment nor the account constituted a legal claim on the estate of Ives, that there was nothing due to the appellants.
    Upon the facts thus found, the question as to what judgment should be rendered was reserved for the advice of this court.
    
      Hungerford and Cone, for the appellants.
    1. A contract of record by a lunatic is valid to every intent. Hobart, 224. 4 Com. Dig., tit. “ Idiots,” D., 6. 3 Bac. Ab., tit. “ Idiots,” F. .12 Petersdorf Dig., 392, note. 12 Coke, Index, “ Idiots and Lunatics.” Beverly's case, 4 Coke, 124 a.
    2. The process served on Ives in the Massachusetts suit was a valid process to bring him before the court. If there is any mode of bringing a lunatic before the court, it must be by personal service, as in this case. Steele v. Alan, 2 Bos. & Pul., 362. Pillop v. Sexton, 3 id., 550. Kernot v. Norman, 2 T. R., 390. Nutt v. Verney, 4 id., 121. Ibbotson v. Galway, 6 id., 133.
    3. The judgment is not a nullity, .but valid until set aside by some appropriate judicial proceeding within the jurisdiction where it was rendered. Walker v. Clay, 21 Ala., 797, 807. Allison v. Taylor, 6 Dana, 87. Parkhurst v. Sumner, 23 Verm., 538. King v. Robinson, 33 Maine, 114. Robertson v. Lain, 19 Wend., 649. Sternberg v. Schoolcraft, 2 Barb., 153. Crippen v. Culver, 13 id., 424. Person v. Warren, 14 id., 488. Clark v. Dunham, 4 Denio, 262. McRae v. Mattoon, 13 Pick., 53. 4 Phill. Ev., (C. & H.,) 898.
    . 5. The judgment having been rendered in Massachusetts, no court of law or equity in Connecticut can constitutionally either directly or indirectly render it ineffectual. The case of Bissell v. Briggs, 9 Mass., 462, is a leading one on the subject. The same principle has been laid down by a multitude of decisions. since. If a court of chancery here could in ant, manner interfere with the judgment, yet it could go no further than the courts of chancery of Massachusetts could have gone ; and the chancery powers of the courts of that *state do not [ *133 ] reach such a case. Terrill v. Merrill, 17 Mass., 117. Black v. Black, 4 Pick., 234. Charles River Bridge v. Warren Bridge, 6 id., 376. Stone v. Hobart, 8 id., 464. Pratt v. Bacon, 10 id., 123. Holland v. Cruft, 20 id., 321. Whitney v. Stearns, 11 Mot., 319. Goodrich v. Staples, 2 Cush., 258.
    6. If the judgment is void, the appellants are still entitled to recover upon the account. Equity will not interfere in favor of the lunatic, further than to see that no injustice has been done him. Loomis v. Spencer, 2 Paige, 153. Carr v. Holliday, 1 Dev. & Bat., Eq. R., 344. Ballard v. McKenna, 4 Richardson Eq. R., 358. And such a claim is good in law. Dane v. Kirkwall, 8 Car. & P., 679. Molton v. Camroux, 2 Exch., 487. La Rue v. Gilkyson, 4 Penn., S. R., 375. Wright’s appeal, 8 id., 57. Beals v. See, 10 id., 56. Beavan v. McDonnell, 24 Eng. L. & Eq. R. 484.
    7. The fact that Ives was under a conservator in this state can have no effect upon his contracts made in another state. Story Conf. Laws, secs. 103, 499. Powers v. Mortell, Am. Law Reg., May, 1856, p. 427. He still had all the mental capacity necessary to render his contracts valid. It is expressly found that he had such capacity. Kinne v. Kinne, 9 Conn., 102. Cadwell v. King, 4 Cow., 207. Clark v. Cartwright, 1 Phill., 47. In re Barker, 2 Johns. Cha., 232. Odell v. Buck, 21 Wend., 142.
    
      T. C. Perkins and C. E. Perkins, for the appellees.
    1. The judgment obtained by- the appellants against Ives, in the state of Massachusetts, was not a valid judgment against his person, because no legal service -was made upon him. It is found that he was insane at the time of the service and did not know what it meant. The service must be such as to give fair notice to the party against whom the suit is brought, and such notice cannot be given by a mere ordinary service, where the defendant is an idiot or a lunatic. The proper course would have-been to have had service made upon the conservator or informal notice given to him, and a guardian ad litem should have been appointed. Snow *v. Antrim, [ *134 ] Kirby, 174. Robertson v. Lain, 19 Wend., 649. The circumstances in which the service was made may always be inquired into. Wood v. Watkinson, 17 Conn., 500. Pearce v. Olney, 20 id., 544.
    
      2. Even if the judgment be regarded as a valid one at law, yet equity will interfere to prevent its collection out of the lunatic’s estate, and the claim is here presented as one against the estate. A court of chancery will go behind the judgment, and look at the facts which raise an equity against its enforcement here. L'Amoreux v. Crosby, 2 Paige, 422. In re Heller, 3 id., 200. In re Hopper, 5 id., 489. Crippen v. Culver, 13 Barb., 424. Robertson v. Lain, 19 Wend., 649. We are not thus impeaching- the judgment of the Massachusetts court, and so are not brought within the effect of the constitution and laws of the United States with regard to the credit to be given by one state to the judgments of a sister state. We are only claiming that the judgment, if valid in itself, ought not, for equitable reasons, to be enforced against the estate of the lunatic. A judgment like this, rendered by one of our own courts, would be'restrained in the same way by our courts of equity. It is merely the remedy that is in question, not the judgment itself. The remedy is always within the control of the state where it is sought. Wood v. Walkinson, supra. 3 Story Com. on Const., sec. 1307.
    3. The contract of Ives was void because he was insane. An insane man can not bind himself by contract, unless, perhaps, for necessaries. Fitzhugh v. Wilcox, 12 Barb., 235. Seaver v. Phelps, 11 Pick., 304. The county court, in appointing the conservator over him, found him to be insane, and this finding is conclusive. Leonard v. Leonard, 14 Pick., 280. Wadsworth v. Sherman, 14 Barb., 169. The proceeding was inrem, and therefore notice to all the world. Griswold v. Miller, 15 Barb., 520. Goodrich v. Thompson, 4 Day, 220. 1 Stark. Ev., 241, 258. The reason why a fine levied by a lunatic is held in England to be unimpeachable, is because it is certified by the judges that he was an able and discreet person. [ *135 ] Hobart, 224. 5 Cruise Dig., tit. 35, sec. *10. Snowden v. Dunlavey, 11 Penn., 522. If an insane man, under a conservator, can, by going out of the state, or in any circumstances, make a contract that will bind his estate, it will wholly defeat the object of the appointment of the conservator, and take away the protection which the statute intended to provide for his property. The intention of the statute was to preserve his property for himself and his family, and to prevent his becoming a public chárge as a pauper. In both respects this object would be defeated.
   Sanford, J.

The original suit in which the Massachusetts judgment was rendered, was commenced by the attachment of' the defendant’s property found within the jurisdiction of the court, and by the service of the process upon his person; and so far . s concerns the property attached and its appropriation toward the payment of the plaintiff’s debt, the validity of that judgment, and its sufficiency to justify that appropriation, are not denied. Bik it is claimed by the appellees that, as against the defendant’s person- and his property in this state, that judgment is invalid and ought not to be enforced.

It seems now to be generally conceded that the records and judicial proceedings referred to in the fourth article of the federal constitution, are those only to which the defendant has been made a party by personal service of the process, or has become such by his voluntary appearance in the court. Without such service or appearance, the court obtains no jurisdiction of the defendant’s person. As to him, its proceedings are ex parte, its record is no record, and its judgment is, in another state at any rate, entitled to no “ faith or credit,” and ought to have no “ effect.” And the right of the party against whom such judgment is sought to be enforced, to show such want of jurisdiction, is also generally conceded. Notice of the institution or pendency of the suit, or an appearance, which presupposes notice, is an indispensable pre-requisite to the rendition of any judgment -which the courts of another state are, under the constitution and laws of the United States, bound to recognize as conclusive on the defendant, and accordingly enforce. Kibbe v. Kibbe, Kirby, *119. Aldrich v. Kinney, 4 Conn., 380. [ *136 ] Denison v. Hyde, 6 id., 516. Wood v. Watkinson, 17 id., 500. Borden v. Fitch, 15 Johns., 141. Noyes v. Butler, 6 Barb., 616. Starbuck v. Murray, 5 Wend., 148. Dobson v. Pearce, 2 Kern., 156. Pendleton v. Weed, 17 N. York, 73. M'Elmoyle v. Cohen, 13 Pet., 324. Bissell v. Briggs, 9 Mass., 462.

In the case before us service of the process was made in fact upon the person of the defendant in the suit, but he was then insane—incapable of transacting ordinary business—and “ had no adequate understanding of his rights and duties as a party to a cause in court.” He did not appear, no guardian was appointed for him, and no one appeared in his behalf. Of what avail could be the service of legal process upon the person of such an individual ? Like service of legal process upon an infant three years old, or upon an idiot a nativitate, it was but an idle ceremony, which, as it conveyed to the individual no adequate idea of its import or effect, ought in reason to have imposed upon him no obligation, and conferred no jurisdiction on the court.

But if the judgment was not impeachable at law, >a court of equity-would have restrained the appellants from its enforcement. The appellants knew, or at any rate are chargeable with knowledge, of the decedent’s insanity and incapacity, as well as of his abundant property in this state, and of his subjection here to the guardianship of a conservator ; for whatever is sufficient to put a party upon inquiry, is, in equity, sufficient to charge him with notice of the facts, which due inquiry would have elicited; and the appellants had made to the decedent at least three distinct sales of personal property of considerable value upon credit; their debt of nearly nine hundred dollars had been due and remained unpaid for an entire year before the commencement of their suit; and at that time they knew that the decedent had a conservator, and was claimed to be insane. These are facts quite sufficient to put the appellants upon inquir3r, and, indeed, it is almost as difficult to resist the conclusion that they had in fact ascertained the truth found by the auditor in relation to the incapacity and pecuniaiy ability of the decedent, as it [ *137 ] is to *avoid the application of the principle alluded to. It is unnecessary to pronounce the procurement of the original judgment fraudulent. It is enough that it was taken for fifty dollars more than was then justly due to the appellants, whether by fraud, accident or mistake, is immaterial.

The attempt to enforce such a judgment by suit, knowing the circumstances under which it w'as obtained, was inequitable. If, as the appellants claim, that judgment was one by which the decedent was conclusively bound at law, a case was presented for the application of the general rule, cited and approved by Hinman, J., in giving the opinion of this court in the case of Pearce v. Olney, 20 Conn., 554, that “ equity will interfere to restrain the use of an advantage gained in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, in all cases when such advantage has been gained by the fraud, accident or mistake of the other party.” See also Carrington v. Holabird, 17 Conn., 530. Truly v. Warner, 5 How., 141, 2 Story Eq. Jur., sec. 887, and 2 Sw. Dig., 138.

As therefore a court of equity would have enjoined against the prosecution of the suit upon the Massachusetts judgment, and as commissioners, in regard to the allowance and rejection of claims against insolvent estates of deceased persons, exercise, in effect, the powers, and apply the principles, which govern courts of equity as well as courts of law, the judgment, as a ground of claim in favor of the appellants, was proper!jr rejected.

But equity affords its aid only upon the terms and to the extent of doing exact justice between the parties. While therefore, for the reasons suggested, it would restrain the enforcement of the judgment, it would require the payment by the judgment debtor of the debt justly due from him to the creditor. And in regard to that, it is found by the auditor, that, at the time the original debt was contracted, the decedent, in all the transactions between him and the appellants upon which their account is founded, was able to understand and did understand the contracts which he made, that the property was sold to him at fair prices, and that he had *the benefit of it [ *138 ] all, and that the account is justly due to the appellants. Justice, therefore, requires that the original account and interest, deducting therefrom the net proceeds of the property attached at New Bedford, and the fifty dollai’s paid after the commencement of the original suit and before the judgment was rendered, should be allowed to the appellants, but that the judgment and the costs of the suit thereon should be rejected ; and in this we think the justice and the law of the case coincide.

The superior court therefore should be advised, that the claim of the appellants for the amount of their judgment against the decedent, James Ives, and the costs of their suit thereon, ought to be rejected, but that the amount due on their account as found by the auditor, to wit, the sum of $909.35, with additional interest, amounting in all to $943.70, ought to be allowed to the appellants against the estate of said Ives.

In this opinion the other judges concurred.  