Library of Congress 
 
 UNITED STATES OF AMERICA. 
 
 
 Shelf.. 
 
STATUTOKY LAW 
 
 or 
 
 NE"V\^ YORK 
 
 EEGAEDING THE INSANE. 
 
 By EDMUND WETMOEE, Esq. 
 
 -♦♦^ 
 
 TJTICA, 2sr. y. 
 
 ROBERTS, PRINTER, 60 GENESEE STREET. 
 

N 
 
 I STATUTORY LAW OP NEW YORK REGARD- 
 
 ./'^^ 
 
 ING THE mSANE.'^^ 
 
 BY EDMUND WETMOEE, ESQ. 
 
 I. STATUTORY DISABILITIES OF THE INSANE. 
 
 The laws in wMch tlie ordinary disabilities of tlie in- 
 sane are referred to, are as follows : 
 
 1. Aliening Lands. — Every person capable of holding 
 lands (except idiots, persons of unsound mind, etc.,) 
 seized, or entitled to any estate or interest in lands, may 
 alien sucb estate or interest at bis pleasure, with tbe ef- 
 fect and subject to tbe restrictions and regulations pro- 
 vided by law. 
 
 2. Marriage and Divorce. — ^Wben either one of tbe 
 parties to a marriage sball be incapable for want of un- 
 derstanding of consenting to a marriage, tbe marriage 
 sball be void from tbe time its nullity sball be declared 
 by a court of competent authority. 
 
 The Supreme Court may by a sentence of nullity de- 
 clare void the marriage contract for the cause existing 
 at the time of the marriage that one of the parties was 
 an idiot or lunatic. 
 
 3. Statute of lAmitations. — If a person entitled to com- 
 mence any action for tbe recovery of real property, or to 
 make an entry or defence founded on the title to real 
 
 * This abstract of the principal laws of the State of New York 
 respecting the insane, was compiled some years ago, for the simple 
 purpose of facilitating a comparison between the legislation of 
 our own and our sister States upon that subject. The paper was 
 not intended to be a complete digest even of all our statutes, much 
 less an orderly statement of the law of insanity in ISTew York, as 
 far as settled by legislative enactments and judicial decisions : it 
 merely collates the substance of the statutes referred to, for the 
 convenience of any who desire to know their general and most im- 
 portant provisions. 
 
property, or to rents or services out of the same, be, at 
 tlie time sucli title shall first descend or accrue, insane, 
 the time during which such disability shall continue 
 shall not be deemed any portion of the time limited for 
 the commencement of such action, or the making of such 
 entry or defence ; but such action may be commenced, 
 or entry or defence made, after the period of twenty 
 years, and within ten years after the disability shall 
 cease, or after the death of the person entitled who shall 
 die under such disability ; but such action shall not be 
 commenced, or entry or defence made, after that period. 
 If a person entitled to bring certain enumerated ac- 
 tions other than actions for the recovery of real property, 
 be, at the time the cause of action accrued, insane, the 
 time of such disability is not part of the time limited 
 for the commencement of the action, except that the 
 period within which the action must be brought cannot 
 be extended more than five years by such disability, 
 nor longer than one year after the disability ceases. 
 
 4. Wills. — (a.) Heal JProperty. — All except idiots, 
 persons of unsound mind, married women, and infants, 
 may devise their real estate. 
 
 (^.) Personal Pro'perty. — Every male of the age of 
 eighteen, and every female not married of the age of 
 sixteen, of sound mind and memory, and no others, may 
 bequeath personal estate. 
 
 n. APPOESTTMEISTT OF COMMITTEES FOE THE INSAJS^E. 
 
 [The following proceedings will be found treated of at length in 
 ** Creary's Special Proceedings," and the present statement of them 
 is taken mainly from that work.] 
 
 1. Courts which have Jurisdiction. — ^In this proceed- 
 ing the old method, in accordance with the ancient prac- 
 tice of chancery, remains substantially unaltered. The 
 general power of chancery has been transferred to the 
 
Supreme Court, wHcli now supercedes the former Court 
 of Chancery in this State. It is enacted that the Su- 
 preme Court shall have the care and custody of all idi- 
 ots, lunatics, and persons of unsound mind, and of their 
 real and personal estates, so that the same shall not be 
 wasted or destroyed ; and shall provide for their safe 
 keeping and maintenance, and for the maintenance of 
 their families and the education of their children, out of 
 their personal estates and the rents and profits of their 
 real estates, respectively. It is also enacted that the 
 County Courts shall have the care and custody of the 
 person and estate of a lunatic, or person of unsound 
 mind, residing within the county, and also such courts 
 shall have jurisdiction with respect to the sale, mortgage 
 or other disposition of the real property of such persons 
 situated within the county. 
 
 The same authority is also given to the Court of Com- 
 mon Pleas of the city and county of New York, where 
 the lunatic or person of unsound mind resides in that 
 city, or the propeii^y is situated therein. And the like 
 authority is also given to the Superior Court of the city 
 of Buffalo, where the lunatic resides in that city, or the 
 property is situated therein. 
 
 In the case of a non-resident lunatic, the Supreme 
 Court may appoint a committee to enable the said com- 
 mittee to obtain control of property in this State. And 
 the court may issue a commission to inquire as to the 
 lunacy of a non-resident, but it cannot be executed be- 
 yond the limits of the State. In such case the court 
 will direct it to. be issued in such county as may be 
 most convenient. 
 
 2. Who f)iay apply fo?' a Commission. — There is no 
 restriction: a stranger may apply, though the applica- 
 tion of relatives will be entertained in preference, if 
 there is no valid objection to them. 
 
6 
 
 3. Method of Application, — Tlie application is "based 
 upon a petition to the court of proper jurisdiction, 
 whicli should be accompanied with affidavits, setting 
 forth the unsound condition of mind of the party, and 
 stating some instances of conduct or language which 
 plainly indicate it. Where the lunatic is a non-resident 
 of the State, the petition must also show that he is the 
 owner of property situated in this State. 
 
 4. The Commission, — Upon the granting of the j)eti- 
 tion and entering an order to that effect with the clerk 
 of the court, the commission usually prepared by the 
 attorney for the 23etitioner will issue. It is usually di- 
 rected to three persons, commanding them to inquire 
 into the alleged insanity, the time when it began, con- 
 dition of the alleged lunatic's estate, etc. 
 
 5. Notice that the Commission has issued. — The party 
 proceeded against as a lunatic is entitled to reasonable 
 notice of the time and place of executing the commis- 
 sion, even though a non-resident. A requisition to this 
 effect is usually inserted in the commission. Dangerous 
 madness, or peculiar circumstances, may excuse this 
 notice. 
 
 6. Place of executing the Commission, — The order 
 usually directs the commission to be executed at or near 
 the place of residence of the alleged lunatic. Non- 
 residence will dispense with, and other circumstances 
 may modify, however, this provision of the order. 
 
 7. Witnesses, — Subpoenas may be issued by the com- 
 missioners, and the court mil enforce them. 
 
 8. Precept for a Jury. — ^The commissioners may 
 issue a precept to the sheriff of the county in which 
 the commission is to be executed, commanding him to 
 summon a jury. 
 
 9. Duty of the Sheriff. — The sheriff will summon not 
 less than twelve nor more than twenty-four jurors. It 
 
is also his duty, if required, to attend tlie execution of 
 the commission, for the purpose of guarding the jury 
 room, etc. 
 
 10. Proceedings hefore tlie Commissioners. — ^The party 
 23roceeded against is entitled to be present and may 
 have counsel. Before proceeding with the examination 
 the commissioners should require proof of the due ser- 
 vice of notice of the execution of the commission. The 
 leading commissioner, usually the first one named in 
 the commission, instructs the jury in the duty assigned 
 them, and administers the oath to them and to the wit- 
 nesses. The party himself may he inspected and exam- 
 ined. The commissioners, or one of them, after the tes- 
 timony is closed, should submit the question to the jury 
 in the form of a charge, without arguments of counsel 
 on either side. It is necessary that twelve of the jury 
 should concur in the verdict. The verdict being re- 
 turned, 
 
 11. The Inquisition is onade up accordingly^ signed 
 and sealed hy the Commissioners and hy the Jury. — ^The 
 inquisition states the finding of the commission whether 
 the party is a lunatic or not, or any other facts con- 
 cerning which inquiry was to be made, relative to prop- 
 erty, etc. 
 
 12. Return of Commission. — This is done by annexing 
 the inquisition to the commission, duly indorsing them, 
 and filino; them with the clerk of the court. 
 
 13. Proceedings on Peturn. — Upon the filing of the 
 return, a motion is made to confirm the finding of the 
 jury. The alleged lunatic or his friends may also apply 
 at the same time for an order to set aside the inquisi- 
 tion, or for leave to traverse it, or for an issue. 
 
 14. Who may he appointed Committee. — There is no 
 particular restriction as to the person who may be ap- 
 pointed committee. The court will exercise its discre- 
 
8 
 
 tion, and consult tlie interests of the lunatic. The 
 custody of the person is usually committed to some of 
 the nearest kin. 
 
 15. Appointment of Committee. — ^The committee is 
 appointed upon application to the court. The same 
 person may be appointed committee both of the person 
 and of the estate, but where the estate is large it is 
 usual to have a separate committee for each. A refer- 
 ence is frequently directed to ascertain the suitable 
 person to be appointed committee. 
 
 16. Bond of Committee. — This is required before the 
 committee can enter upon their duties, and must have 
 two sufficient sureties and be approved by a judge of 
 the court. Security may sometimes, however, be dis- 
 pensed with by the court. 
 
 17. Traverse of Inquisition^ etc. — In England the 
 inquisition may be traversed as a matter of right by 
 the alleged lunatic or his friends. In this State they 
 will order a jury trial to decide the fact, in their discre- 
 tion. Application for jury trial is founded upon peti- 
 tion, notice to the opposite party, and, usually, affidavits. 
 The inquisition may be set aside for irregularity, or 
 upon proof of an erroneous verdict by the jury in the 
 first instance. •If the lunatic is restored to his reason, 
 application may be made to the court to supercede or 
 suspend the commission, or the commission may be 
 superceded if it has remained unexecuted several years, 
 or for other reasons. So the commission may be super- 
 ceded for a particular purpose — as, in one instance, to 
 enable the lunatic to make a will, though the case cited 
 is of doubtful authority. If the lunatic be sufficiently 
 recovered to make a will, he is sufficiently recovered to 
 be free from the control of the committee altogether, in 
 most instances. In case of the death or incapacity of 
 the commissioners on the original inquisition, a new one 
 may be directed to be issued. 
 
9 
 
 in. THE DISPOSITION^ OF THE ESTATES OF LU]S^ATICS, AND 
 THE DUTY OF COMMITTEES. 
 
 1. Duty and cmtliority of the Committee^ fil^'^^ -^" 
 ventory^ &c. — Every committee of the estate of any 
 idiot, lunatic or person of unsound mind, shall, within 
 six months after their appointment, file in the office of 
 the clerk of the court which appointed such committee, 
 a just and true inventory of the whole real and per- 
 sonal estate of such idiot, lunatic or person of unsound 
 mind, stating the income and profits thereof, and the 
 debts, credits and effects, so far as the same shall have 
 come to the knowledge of such committee. And when- 
 ever any property belonging to such estate shall be 
 discovered after the filing of any inventory, it shall be 
 the duty of such committee to file as aforesaid a just, 
 and true account of the same from time to time, as the 
 same shall be discovered. Such inventories shall be 
 verified by the oath of the committee, to be taken be- 
 fore a judge of any court of record. The filing of such 
 inventories may be compelled by the order and process 
 usual in such cases, of the court which appointed the 
 committee. 
 
 Receivers and committees of lunatics, appointed by 
 any order or decree of the Supreme Court, may sue in 
 their own names for any debt, claim or demand trans- 
 ferred to them or to the possession of which they are 
 entitled as such receiver or committee ; and when 
 ordered or authorized to sell such demands the pur- 
 chaser thereof may sue and recover therefor in his own 
 name, but shall give such security for costs to the de- 
 fendant as the court in which such suit is brought may 
 direct. In an action prosecuted by a person expressly 
 authorized by statute to sue in his own name, as in the 
 case of the committee of a lunatic, the costs shall be 
 chargeable only upon or collected of the estate, fund or 
 
10 
 
 party represented, unless tlie court sliall direct tlie same 
 to be paid by tlie plaintiff or defendant personally, for 
 mismanagement or bad faitli in such action. A person 
 so exj)ressly authorized by statute may sue without 
 joining with him the person for whose benefit the action 
 is prosecuted. 
 
 Under the direction of the court, and subject to the 
 law imposing upon those having the care of lunatics the 
 duty of sending them to the asylum, the entire control of 
 the person of the lunatic rests with the committee, and 
 they are bound to provide for his personal ease and 
 comfort. As a general rule the committee cannot enter 
 into any transaction or contract respecting the property 
 of a lunatic without the authority of the court. If the 
 lunatic's estate is large, and its interests require the em- 
 ployment of an agent or clerk, the court, upon the peti- 
 tion of the committee, will allow him to employ such 
 agent or clerk, and pay him a reasonable compensation 
 for his services out of the income of the estate ; but 
 the committ^ee himself can not receive a compensation 
 for services as such clerk beyond his allowance for com- 
 missions as the committee. 
 
 If waste is committed upon the lands of the lunatic, 
 it is the duty of the committee to apply to the court 
 for an order to restrain it. 
 
 Where the lunatic resides in another State and has 
 property in the hands of his committee appointed at 
 the place of his residence, that property is the primary 
 fund for his support, and should be first applied for 
 that purpose by the committee who has control of his 
 person. 
 
 2. Sale^ Mortgage or Lease of Lunatic's Heal Estate, — 
 ia?) For payment of debts. — Whenever the personal 
 estate of any idiot, lunatic or person of unsound mind, 
 for whom there is a committee appointed, shall not be 
 
11 
 
 sufficient for the discharge of his debts, it shall he the 
 duty of the committee of his estate to apply by peti- 
 tion to the court by which they were appointed, pray- 
 ing for authority to mortgage, lease or sell so much of 
 the real estate of such idiot, lunatic, or person of un- 
 sound mind as shall be necessary for the payment of 
 such debts. The said petition shall set forth the par- 
 ticulars and amounts of the estate, real and personal, 
 of such idiot, lunatic or person of unsound mind, the 
 application which may have been made of any personal 
 estate, and an account of the debts and demands exist- 
 ing against such estate. 
 
 On the presenting of such petition, it shall be referred 
 to a referee, or to the clerk of the court, to inquire into 
 and report upon the matters therein contained, whose 
 duty it shall be to examine into the truth of the repre- 
 sentations made, to hear all parties interested in such 
 real estate, and to report thereon with all convenient 
 speed. 
 
 If, upon the coming in of the report and an examina- 
 tion of the matter, it shall appear to the court that the 
 personal estate of the idiot, lunatic, or person of un- 
 sound mind is not sufficient for the payment of his 
 debts, and that the same has been applied to that 
 purpose, as far as the circumstances of the case rendered 
 proper, an order shall be entered, directing the mortgage, 
 leasing or sale of the whole or such part of the said 
 real estate as shall be necessary to discharge the said 
 debts. 
 
 The court may require any additional security to be 
 given by any such committee, for the faithful applica- 
 tion and accounting for the proceeds of such mortgage, 
 lease or sale ; and may require an account thereof to be 
 rendered from time to time. 
 
12 
 
 In tlie application of any moneys raised "by any sucli 
 mortgage, lease or sale, the committee shall pay all 
 debts in an equal proportion, without giving any pref- 
 erence to such as are founded on sealed instruments. 
 
 (5.) For Support — When the personal property and 
 the rents, profits, and income of the real estate of any 
 such idiot, lunatic, or person of unsound mind shall be 
 insufficient for his maintenance, or that of his family, or 
 for the education of his children, a similar application 
 may be made by the committee to the Supreme Court, 
 or to the court having jurisdiction, for authority to 
 mortgage or sell the whole or so much of the real es- 
 tate as shall be necessary for that purpose ; upon which 
 the same reference and proceedings shall be had, a like 
 order shall be entered, as hereinbefore directed in the 
 case of the application for a sale, mortgage, or lease in 
 order to pay the debts of such insane person. 
 
 In the case last mentioned, the court shall direct the 
 manner in which the proceeds of such sale shall be se- 
 cured, and the income or produce thereof appropriated. 
 
 The court shall give such orders respecting the time 
 and manner of any sale herein mentioned as shall be 
 deemed proper ; and no conveyance in pursuance of any 
 such sale shall be executed until the sale shall have been 
 reported on the oath of the committee, and confirmed 
 by the court directing the same. 
 
 (<?.) Sale where the Interest of the Lunatic will he Pro- 
 moted, — By a late statute, a lunatic may by committee, 
 or by the husband if the lunatic is a married woman, 
 apply to the Supreme Court for the sale of any estate 
 or interest in lands belonging to such lunatic. On such 
 application the said committee, or the said husband, 
 shall give bond to the lunatic (in addition to the bond 
 given on the appointment of such committee,) to be 
 
13 
 
 filed witli the clerk of tlie court, in such penalties and 
 with such sureties as the court shall direct, for faithful 
 performance of the trust imposed, accounting for all 
 moneys received, and obeying all orders and directions 
 of the coiu't in relation to the trust, which bond if 
 forfeited shall be prosecuted, by direction of the court, 
 for the benefit of the party injured. Upon the filing of 
 the bond the court may proceed in a summary manner, 
 by reference, to inquire into the merits of the applica- 
 tion, and whenever it shall appear satisfactory that 
 the disposition of any part of the real estate or interest 
 in lands of such lunatic, including the separate estate of 
 any married woman who may be a lunatic, is necessary 
 and proper either for the support and maintenance of 
 such lunatic or for his education, or that the interest of 
 such lunatic requires or will be substantially promoted 
 by such disposition, on account of any part of such pro- 
 perty being exposed to waste and dilapidation, or on 
 account of its being wholly unproductive, or when the 
 same has been contracted to be sold and a conveyance 
 thereof cannot be made by reason of such lunacy, or 
 for any other peculiar reasons or circumstances, the 
 court may order the letting for a term of years, or the 
 sale or other disposition of such real estate or interest, 
 to be made by such committee in such manner and with 
 such restrictions as shall be deemed expedient, or may 
 order the fulfillment of said contract by conveyance by 
 such committee according to the terms of the contract 
 but no such real estate or interest shall be sold, leased, 
 or disposed of in any manner against the provisions of 
 any last will or of any conveyance by which such es- 
 tate, or term, or interest was devised or granted to such 
 luiLatic. 
 
 The agreement to sell, etc., must be reported to the 
 court as in other cases, and if the report be confirmed 
 
14 
 
 a conveyance will be executed under the directions of 
 tlie court. 
 
 All sales, etc., made in good faith by such committee, 
 in pursuance of such orders, shall be valid and effectual 
 as if made by such lunatic when of sound mind. 
 
 The disposition of the proceeds of the |)roperty sold, 
 etc., shall be made according to the order of the court, 
 so as to secure the same for the benefit of such lunatic ; 
 and shall require accounts to be rendered periodically 
 by any committee or other person who may be intrusted 
 with the income of such proceeds. No sale, made in 
 the manner provided, shall have the effect of giving the 
 lunatic any other or greater interest or estate in the 
 proceeds of the sale than he had in the estate sold, but 
 the proceeds shall be deemed real estate of the same 
 nature as the property sold. Acceptance of a gross 
 sum may be granted in lieu of dower when a dower 
 interest is the subject of sale, where the person entitled 
 thereto shall consent in writing, or may direct the se- 
 curing of a reasonable annuity in lieu of dower. But 
 before any such sum shall be paid, or such annuity 
 secured, the court shall be satisfied that an effectual 
 release of su6h right of dower has been executed. 
 
 3. Application for Conveyance ivhere the lAinatic is 
 Trustee^ Specific Performance of Ms Agreements^ Parti- 
 tion of ids Estate^ (&c, — Whenever any such idiot, luna- 
 tic, or person of unsound mind shall be seized or 
 possessed of any real estate by way of mortgage, or as 
 trustee for others in any manner, his committee may 
 apply to the Supreme Court for authority to convey 
 and assure such real estate to any other person or per- 
 sons entitled to such conveyance or assurance, in such 
 manner as the said court shall direct; upon which a 
 reference and the like proceedings shall be had as in 
 the case of an application to sell real estate, as before 
 
15 
 
 mentioned ; and tlie eonrt, upon hearing all the parties 
 interested, may order such, conveyance or assurance to 
 be made. 
 
 On the apj^lication of any person entitled to such 
 conveyance or assurance, by bill or petition, the com- 
 mittee may be compelled by the Supreme Court, on a 
 hearing of all parties interested, to execute such convey- 
 ance or assurance. 
 
 Every conveyance, mortgage, lease and assurance, 
 made under the order of the Supreme Court, or of any 
 court having jurisdiction, shall be as valid and effectual 
 as if the same had been executed by such idiot, lunatic, 
 or person of unsound mind when of sound memory and 
 understanding. 
 
 The Supreme Court shall have authority to decree 
 and compel the specific performance of any bargain, con- 
 tract or agreement which may have been made by any 
 lunatic, idiot, or person of unsound mind while such 
 lunatic or other person was capable to contract; and 
 to direct the committee of such person to do and execute 
 all necessary conveyances and acts for that purpose. 
 
 The real estate of any idiot, lunatic or ]3erson of un- 
 sound mind shall not be leased for more than five years^ 
 or mortgaged or aliened or disposed of otherwise than 
 as above directed. 
 
 In case any lunatic or other such person shall be 
 restored to his right mind, his real and personal estate 
 shall be restored to him. 
 
 In case of the death of any idiot, lunatic or person of 
 unsound mind, the power of any trustees appointed as 
 above shall cease, and his real estate shall descend to 
 his heirs, and his personal estate be distributed among 
 his next of kin, in the same manner as if he had been of 
 sound mind and memory ; but nothing in the foregoing 
 provisions contained shall be held to affect the provi- 
 
16 
 
 sions of any last will and testament duly made, and 
 wliicli sliall be duly admitted to probate. 
 
 4. Effect of Issuing Commission^ and of Inquisition. — 
 After a commission has been issued, persons purchas- 
 ing property of, or otherwise dealing with the alleged 
 lunatic, with a knowledge that the same has been issued, 
 will do so at the risk of having their whole proceedings 
 declared illegal and void. 
 
 The acts of a lunatic before he has been judicially 
 declared to be of unsound mind are not void, but void- 
 able. The courts of this State will not interfere to ex- 
 onerate a lunatic from liability on his contract for pro- 
 perty sold to him, if he has actually had the benefit of 
 the property, and the contract was made in good faith, 
 without knowledge of the incapacity, and where no ad- 
 vantage has been taken of the situation of the party. 
 But, after his incapacity has been judicially ascertained, 
 he can, as before stated, make no contract, nor delegate 
 any power, nor waive any right, until his restoration to 
 capacity is, in like manner, judicially declared. 
 
 With respect to acts done by a lunatic before the is- 
 suing of a commission, and which are over-reached by 
 the finding of the jury on the commission, that is, where 
 the jury by their return find that the lunatic was insane 
 at the time of the acts in question, the inquisition is pre- 
 sumptive but not conclusive evidence of their invalidity. 
 
 rV. LEGAL PEOCEEDIITGS IN WHICH LUNATICS AEE PAETIES, 
 AND THE SERVICE OF LEGAL PROCESS UPON THEM. 
 
 1. Actions hy or against an Insane Person for whom a 
 Committee has been appointed, — (^.) Py such person, — 
 B-eceivers and committees of lunatics, appointed by any 
 order of the court, may sue in their own names for any 
 debt to the possession or control of which they are en- 
 titled ; and, when ordered or authorized to sell such de- 
 
17 
 
 mands, the purcliaser may sue and recover therefor iii 
 liis own name, but shall give such security for costs as 
 the court may direct. 
 
 Other actions affecting the person or property of the 
 lunatic, except those above enumerated, must, by com- 
 mon law, be brought in the name of the lunatic, and 
 not in the name of his committee. The New York 
 Code has still further enlarged the power of the com- 
 mittee to sue. It is enacted that a trustee of an express 
 trust, or a person expressly authorized by statute, may 
 sue without joining with him the person for whose 
 benefit the action is prosecuted, and that " a trustee of 
 an express trust," shall be construed to mean a person 
 with whom, or in whose name, a contract is made for 
 the benefit of another. It has been held that the com- 
 mittee of an insane person is the trustee of an express 
 trust, within the meaning of this section. 
 
 (^.) Actions against such Persons, — Leave to sue. — 
 After a person is declared by inquisition to be insane, 
 it is a contempt of court for a creditor, or other person, 
 who is informed of the proceedings to sue the insane 
 person, or levy an execution on his property, or other- 
 wise interfere with it, without the leave of the court. 
 And such creditor or other person, upon a proper appli- 
 cation from the committee, will be restrained from such 
 interference. 
 
 The proper course for the creditor, under such cir- 
 cumstances, when his claim is disputed or refused by 
 the committee, is to apply to the court, by petition, for 
 the payment of his debt out of the insane person's 
 estate ; or for leave to collect his claim by action, or to 
 have a reference. If the court is satisfied that the debt is 
 justly due, it will order the committee to pay it out of the 
 estate ; or, if doubtful, order a reference, or permit the 
 party to establish his claim by action, in their discretion. 
 
18 
 
 * Mode of Conducting the Action, In general the ac- 
 tion should he against the insane person alone, — In a 
 case in wMcli tlie committee lias a personal interest 
 in tlie controversy whicli may conflict witli tlie insane 
 person's, both, should be made parties, and the court 
 will appoint a guardian ad litem for the insane person. 
 
 Service of the Summons. — A civil action is com- 
 menced by the service of a summons. If the action be 
 against a person judicially declared to be of unsound 
 mind, and for whom a committee has been appointed, 
 the summons may be served by delivering a copy 
 thereof to such committee and to the defendant per- 
 sonally. 
 
 Provisional Remedies in an Action, — ^An insane per- 
 son for whom a committee has been appointed, is not, of 
 course, liable to arrest. 
 
 Effect of Judgment — ^The judgment will bind the 
 estate of the lunatic, and, as has already been seen, the 
 committee may be compelled to perform his contract. 
 
 2. Actions hy or Against a/n Insane Person for whom 
 no Committee has heen appointed, (a,) Actions hy such 
 person, — Until a person is judicially declared to be of 
 unsound mind, there is nothing to prevent the com- 
 mencement of an action in his own name. The proper 
 course in such a case would be for the opposite party 
 to apply to the court to have a conunittee appointed in 
 the usual way. 
 
 (J.) Actions against such Persons, — ^A civil action 
 may be carried on against an insane person, etc., in the 
 same manner as against a sane person, the process being 
 personally served. The insanity of the party defend- 
 ant, however, would be good ground for opening a 
 judgment rendered against him. 
 
 Provisional Remedies in such Action, — If any per- 
 son imprisoned on attachment, or any civil process, be- 
 
19 
 
 comes insane, the county judge of tlie county wliere 
 lie is confined shall institute a careful investigation, 
 call two respectable physicians and other credible wit- 
 nesses, and if necessary call a jury, notice of the pro- 
 ceedings having been first given by mail or otherwise 
 to the plaintiff or his attorney, if in the State ; and if 
 it shall be proved to the satisfaction of said judge that 
 the. prisoner is insane, he may discharge him jfrom im- 
 prisonment, and order him into safe custody, and to be 
 sent to the asylum. Nevertheless, the creditor may 
 renew his process, and arrest again his debtor when of 
 sound mind. ♦ 
 
 3. Other Legal Proceedings. — In special proceedings, 
 such for instance as summary proceedings before jus- 
 tices of the peace, for the ejectment of tenants, the 
 insanity of the party proceeded against would not be 
 a defence. The proceeding would be conducted as 
 usual, the committee, if there was one, being made a 
 party. 
 
 Legal papers and process affecting an insane person 
 must be served upon the insane person personally, if no 
 committee has been appointed. K a committee has 
 been appointed it should be served upon both, in 
 most instances. In some cases, service upon the com- 
 mittee alone would be sufficient. 
 
 Sometimes a petition or affidavit is sworn to by one 
 who has been found by an inquisition to be of un- 
 sound mind. In such a case the officer before whom it 
 is sworn should state in the jurat that he had examined 
 the petitioner or deponent for the purpose of ascertaining 
 the state of his mind, and whether he was capable of 
 understanding the nature and object of the petition or 
 affidavit, and that he was apparently of sound mind, 
 and capable of understanding the same. And if the 
 party is blind the officer should also certify that the 
 
20 
 
 petition or affidavit was carefully and correctly read 
 over to Mm, in the presence of sucli officer, before it 
 was sworn to. 
 
 V. LAWS REaAEDrN-G- THE ADMISSION OF THE INSANE TO 
 ASYL¥MS, AND THEIE DISCHAEGE THEEEFEOM. 
 
 1. Persons Furiously Mad, — (a.) Who 7)iay commit 
 such Persons to custody, — "WTien any person, by lunacy 
 or otherwise, becomes furiously mad, or so far dis- 
 ordered in Ms senses as to endanger his own person 
 or the person or property of others if permitted to 
 go at large, and who is possessed of sufficient property 
 to maintain himself, it shall*be the duty of the commit- 
 tee of his person and estate to send him to the State 
 Lunatic Asylum, or to such public or private asylum as 
 may be approved by a standing order or resolution of 
 the supervisors of the county. 
 
 If such person is not possessed of sufficient property 
 to maintain himself^ it shall be the duty of the father 
 and mother and the children of such person, being of 
 sufficient ability, to send him to the State Asylum or to 
 a public or private asylum, as above mentioned. 
 
 In case of the refusal or neglect of any committee of 
 such lunatic or mad person, or of his relatives, to send 
 such person to the asylum, as aforesaid, or when there 
 is no such committee or relative of sufficient ability, it 
 shall be the duty of the overseers of the poor of the city 
 or town where any lunatic or mad person shall be found, 
 to apply to any two justices of the peace of the same 
 city or town, who, upon being satisfied upon examination 
 that it would be dangerous to permit such lunatic to 
 go at large, shall issue their warrant, directed to the 
 constables and overseers of the poor of such city or 
 town, commanding them to cause such lunatic or mad 
 person to be apprehended, and to be safely locked up 
 
21 
 
 and confined in sucli secure place as may be provided 
 by the overseers of tlie poor to wliom tlie same shall be 
 directed, within the town or city of which such over- 
 seers may be officers, or within the county in which 
 such city or town may be situated, or in the county 
 poor-house in those counties where such houses are es- 
 tablished, or in such private or public asylum as may 
 be approved by any standing order or resolution of the 
 supervisors of the county in which such city or town 
 may be situated, or in the Lunatic Asylum of the city 
 of New York ; but such lunatic or mad person shall not 
 be so confined for longer than the space of ten days, 
 but within that time shall be sent to the said State 
 public or private asylum, as before mentioned. 
 
 Any two justices of the peace of the city or town 
 where any such lunatic or mad person may be found, 
 may, without the application of any overseers of the 
 poor, and upon their own view or upon the information 
 or oath of others, whenever they deem it necessary, 
 issue their warrant for the apprehension and confine- 
 ment of such lunatic or mad person, for not longer than 
 ten days, as aforesaid, and such lunatic or mad person 
 shall in like manner be sent to the said State or private 
 asylum. 
 
 In all the above cases it is provided that the lunatic 
 shall be sent to the asylum within ten days. Tempo- 
 rary confinement in other places, not exceeding ten days, 
 may be allowed. No such insane person, however, can 
 be so temporarily confined in any prison, jail or house 
 of correction, unless an agreement shall have been made 
 for that purpose with the keepers thereof, nor shall 
 such person be confined in the same room with any 
 person charged with or convicted of any crime. 
 
 (5.) How the duty of committing such Persons to cus- 
 tody may he enforced^ and the mode of such commit- 
 ment, — ^The overseers of the poor shall have the same 
 
22 
 
 remedies to compel relatives of insane persons, being of 
 sufficient ability, to fulfill the requirements of tlie pro- 
 visions above recited, and to collect the costs and 
 cliarges of non-fiilfillment as are given by law in tlie 
 case of poor and impotent persons becoming chargeable 
 to any town, and it shall be the duty of the overseers 
 of the poor to whom a justice's warrant shall be di- 
 rected, as above provided, to procure a suitable place 
 for the temporary confinement of such lunatic, as therein 
 directed. 
 
 An overseer of the poor, constable, keeper of a jail, 
 or other person, who shall confine any lunatic or mad 
 person in any other manner or in any other place 
 than such as are by law prescribed, shall be deemed 
 guilty of a misdemeanor, and on conviction shall be 
 liable to a fine not exceeding two hundred and fifty 
 dollars, or to imprisonment not exceeding one year, or 
 to both, in the discretion of the court before which the 
 conviction shall be had. 
 
 The county superintendents of the poor shall have 
 all the powers and authority above given to overseers 
 of the poor of any town, and both superintendents and 
 overseers are severally enjoined to see that the provis- 
 ions of law regarding the transfer of the. insane to the 
 asylum be carried into effect in the most humane and 
 speedy manner, as well in case the lunatic or his rela- 
 tives are of sufficient ability to defray the expenses as 
 in case of a pauper. 
 
 In every case of confinement of a lunatic or mad per- 
 son, as herein above mentioned, (in the asylum or else- 
 where,) whether of a pauper or not, neither justices, 
 superintendents or overseers of the poor shall order or 
 approve of such confinement without having the evi- 
 dence of two reputable physicians under oath as to the 
 alleged fact of insanity, and such testimony shall be 
 
23 
 
 reduced to writing, and filed, with a "brief report of all 
 the other proofs/facts and proceedings in the case, in 
 the office of the county clerk ; and said clerk shall file 
 said papers and register, with dates, the names and resi- 
 dence of the lunatic and officers, severally, in tabular 
 form, in the book of miscellaneous records kept in said 
 office, and the certificate of said clerk, and seal of the 
 court, verifying such facts, shall warrant such lunatic's 
 admission into the asylum. 
 
 If any lunatic confined under the laws herein before 
 mentioned, or any friend in his behalf, be dissatisfied 
 with any final decision or order of the justices, or of 
 any overseer or superintendent of the poor under such 
 laws, he may, within three days after such order or de- 
 cision, appeal to one of the judges of the county, making 
 complaint on oath, and such judge shall thereupon stay 
 his being sent out of the county, and forthwith call a 
 jury to decide upon the fact of lunacy ; after a fall and 
 fair investigation, aided by the testimony of two respect- 
 able physicians, if such jury shall find him sane the 
 judge shall forthwith discharge him, otherwise he shall 
 confirm the order for his being immediately sent to an 
 asylum. In case the justices refuse to make an order 
 for confinement, they shall state their reasons for such 
 refusal in writing, so that any person aggrieved thereby 
 may appeal as above to a county judge, who shall hear 
 and determine the matter in a summary way or call a 
 jury, as he may think most fit and proper. In every case 
 of appeal the judge shall have the same power to take 
 testimony and compel the attendance of witnesses and 
 jurors as a justice has in civil cases. 
 
 2. Indigent Persons^ not Pawpers, — When a person in 
 indigent circumstances, not a pauper, becomes insane, 
 application for a certificate of admission to the asylum 
 may be made in his behalf to the county judge of the 
 
24 
 
 county where lie resides ; but no sucIl certificate can "be 
 granted unless the person has become insane within one 
 year next prior to the granting of the certificate by the 
 judge. It is the duty of the judge, when such an appli- 
 cation is made to him, to cause such notice thereof, and 
 of the time and place of hearing the same, to be given 
 to one of the superintendents of the poor of the county 
 chargeable with the expense of supporting such person 
 in the asylum, if admitted, or, if such expense is charge- 
 able to a town or city, then to an overseer of the poor 
 of such town or city, as he may deem reasonable. The 
 judge, at the time and place of hearing, must call two 
 respectable physicians and other credible witnesses, 
 and fully investigate the facts of the case, and (either 
 with or without the verdict of a jury, at his discretion, 
 as to the question of insanity,) must decide the case as 
 to his indigence. He must also enquire as to the time 
 when the person became insane. He has power to com- 
 pel the attendance of witnesses and jurors. Upon all 
 the facts being proven, according to law, it is the duty 
 of the judge to make and execute a certificate that satis- 
 factory proof has been adduced showing the person to 
 be insane, and that he became insane within one year 
 next prior to the date of the certificate, and that his es- 
 tate is insufficient to support him and his family, (or, if 
 he has no family, himself,) under the visitation of 
 insanity. 
 
 The certificate must be authenticated by the county 
 clerk, under his hand and the seal of the county court, 
 and when authenticated is authority for carrying such 
 insane person to the asylum, and must be taken by the 
 friend having such person in charge, and delivered to 
 the superintendent of the asylum. Such person is then 
 to be admitted, and supported at the expense of the 
 coxmty until restored to soundness of mind, if effected 
 in two years. 
 
25 
 
 It is the duty of tlie judge to file the certificate of the 
 physician called before him, taken under oath, and other 
 papers, with a report of his proceedings and decisions, 
 with the clerk of the county, and also to report the facts 
 of the case to the supervisors, whose duty it is, at their 
 next annual meeting, to raise the money requisite to 
 meet the expenses of support accordingly. 
 
 When an indigent patient, under a judge's certificate, 
 has remained in the asylum two years and has not re- 
 covered, it is the duty of the superintendent to send no- 
 tice thereof, by mail, to the overseer of the poor of the 
 town from which the patient was sent, or to the county 
 judge, stating that he should be removed from the asy- 
 lum, and that if he is not removed his expenses will be 
 chargeable to the county until the removal is made ; but 
 in every case of an indigent patient who has remained 
 in the asylum two years and not recovered, the mana- 
 gers may, in their discretion, return him to the county 
 from which he came, and charge the expense of the 
 removal to the county. 
 
 When an insane person, in indigent circumstances, 
 shall have been sent to the asylum by his friends, who 
 have paid his bills therein for six months, if the super- 
 intendent shall certify that he is a fit patient, and likely 
 to be benefited by remaining in the institution, the su- 
 pervisors of the county of his residence are > authorized 
 and required, upon an application under oath in his 
 behalf, to raise a sum of money sufficient to defr'ay the 
 expenses of his remaining there another year, and pay 
 the same to the treasurer of the asylum ; and they shall 
 repeat the same for two succeeding years, upon like ap- 
 plication, and the production of a new certificate each 
 year of like import from the superintendent. 
 
 The county judge of each of the counties of this State 
 is hereby authorized to send all such indigent lunatics 
 
26 
 
 belonging to eacli county as may "be brongM before 
 liim, either to tlie county poor-bouse or to the State Lu- 
 natic Asylum, as in bis judgment may be for tbe best 
 interests of all concerned. 
 
 Whenever a county judge shall be precluded from 
 acting in the proceedings above mentioned by reason of 
 relationship by consanguinity or affinity to any lunatic 
 in indigent circumstances, application may be made in 
 behalf of such lunatic to one of the justices of the 
 sessions resident of the county in which such lunatic 
 resides, and the same proceedings had before such justi- 
 ces as might be had before the county judge, but for 
 the latter's disability. 
 
 3. Cnminals, a7id Per sons under Criminal Charge^ and 
 Persons in Prison^ <&c,- — When a person shall have es- 
 caped indictments, or shall have been acquitted of a 
 criminal charge upon trial, on the ground of insanity, 
 the court, being certified by the jury, or otherwise, of 
 the fact, shall carefully inquire and ascertain whether 
 his insanity, in any degree, continues; and if it does 
 shall order him in safe custody, and to be sent to the 
 asylum. 
 
 If any person in confinement under indictment, or 
 under sentence of imprisonment, or under a criminal 
 charge, or for want of bail for good behavior, or for 
 keeping the peace, or for appearing as a witness, or in 
 consequence of any summary conviction, or by order 
 of any justice, or under any other than civil process, 
 shall appear to be insane, the county judge of the 
 county where he is confined shall institute a careful in- 
 vestigation, call two respectable physicians and other 
 credible witnesses, invite the district attorney to aid in 
 the investigation, and, if he deem it necessary, call a 
 jury, (and for that purpose is fully empowered to com- 
 pel the attendance of witnesses and jurors,) and if it 
 
27 • 
 
 "be satisfactorily proved tliat lie is insane may discharge 
 liini from imprisonment and order Ms safe custody and 
 removal to tlie asylum, wliere lie sliall remain until re- 
 stored to his right mind ; and then, if the said judge 
 shall have so directed, the superintendent shall inform 
 the said judge and the county clerk and the district 
 attorney thereof, so that the person so confined may, 
 within sixty days thereafter, be remanded to prison 
 and criminal proceedings be resumed, or otherwise dis- 
 charged; or if the period of his imprisonment shall 
 have ex23ired, he shall be discharged. 
 
 If, as already stated, a person imprisoned on attach- 
 ment or any civil process, or for non-payment of a militia 
 fine, becomes insane, the county judge shall institute like 
 proceedings as are provided for in the last-mentioned 
 case ; but notice shall, in such case, be given by mail or 
 otherwise to the plaintiff or his attorney, if in the 
 State ; and if it shall be proven to the satisfaction of 
 said judge that the prisoner is insane, he may discharge 
 him from imprisonment, and order him into safe custody, 
 and to be sent to the asylum. Nevertheless the credi- 
 tor may renew his process, and arrest again his debtor 
 when of sound mind. 
 
 Persons charged with misdemeanors and acquitted 
 on the ground of insanity, may be kept in custody and 
 sent to the asylum in the same way as persons charged 
 with crime. 
 
 4. Idiots^ Paupers^ and oilier' Insane Persons not in- 
 cluded in the previous classes. — The county superintend- 
 ents of any county, and the overseers of the poor of any 
 town, to which any person shall be chargeable who shall 
 be or who shall become a lunatic, are required to send 
 such lunatic within ten days to the State Lunatic Asylum, 
 or to such public or private asylum as shall be approved 
 by a standing order or resolution of the superintendents 
 of the county. 
 
28 
 
 It is made the duty of superintendents and overseers 
 (as before mentioned,) to see tliat the provisions of law 
 in reference to sending the insane to the asylum, be 
 carried into effect in the most humane and speedy 
 manner. 
 
 Idiots, — ^There shall be received and supported gratu- 
 itously in the State Asylum for Idiots one hundred 
 and twenty pupils, to be selected in equal numbers, as 
 near as may be, from each judicial district, from those 
 whose parents or guardians are unable to provide for 
 their support, therein to be designated as State pupils ; 
 and such additional number of idiots as can be conven- 
 iently accommodated may be received into the asylum 
 by the trustees, on such terms as may be just. But no 
 idiot shall be received into the asylum without there 
 shall have been first lodged with the superintendent 
 thereof a request to that effect, under the hand of the 
 person by whose direction he is sent, stating the age 
 and place of nativity, if known, of the idiot, his chris- 
 tian and surname, the town or city and county in 
 which they severally reside, the ability or otherwise 
 of the idiot, his parents or guardians to provide for 
 his support in whole or in part, and if in part only 
 then what part, and the degree of relationship or 
 other circumstance of connection between him and the 
 person requesting his admission ; which statement shall 
 be verified in writing by the oath of two disinterested 
 persons, residents of the same county with the idiot, 
 acquainted with the facts and circumstances so stated, 
 and certified to be credible by the county judge of the 
 same county; and no idiot shall be received into said 
 asylum unless the county judge of the county liable for 
 his support shall certify that such idiot is an eligible 
 and proper candidate for admission to said asylum, as 
 aforesaid. 
 
29. 
 
 Discharge of Patients from the State Asylum, — ^The 
 managers, upon tlie superintendent's certificate of com- 
 plete recovery, may discliarge any patient^ except one 
 under a criminal charge, or liable to be remanded to 
 prison. And t\ej may discliarge any patient admitted 
 as dangerous, or any patient sent to tbe asylum by tlie 
 superintendents or overseers of tlie poor, or by a county 
 judge, upon tlie superintendent's certificate tbat lie or 
 slie is harmless, and will probably continue so, and is not 
 likely to be improved by farther treatment in the asy- 
 lum, — or, when the asylum is full, upon a like certificate 
 that he or she is manifestly incurable, and probably can 
 be rendered comfortable at the poor-house ; so that pref- 
 erence may be given, in the admission of patients, to re- 
 cent cases of insanity of not over one year's duration. 
 
 The managers may discharge and deliver any patient, 
 except one under criminal charge, as aforesaid, to his 
 relatives or friends who will undertake with good and 
 approved sureties for his peaceable behavior, safe cus- 
 tody and comfortable maintenance, without further pub- 
 lic charge. A. patient of the criminal class may be 
 discharged by order of one of the justices of the 
 Supreme Court, if upon due investigation it shall ap- 
 pear safe, legal and right to make such order. 
 
 The whole duty of the discharge and removal of 
 patients (except in criminal cases,) is devolved upon 
 the managers and the superintendent of the asylum. 
 The county judges, justices, superintendents and over- 
 seers of the poor have no authority to discharge or re- 
 move them. When a discharge is desired, application 
 must be made to the superintendent, so that it may be 
 considered. 
 
 The managers are, by a late law, authorized to appoint 
 two or more of the attendants and employees of the 
 asylum as policemen, whose duty it shall be, under the 
 
30 
 
 orders of the superintendent, to arrest and return to 
 the asylum insane persons who may escape therefrom. 
 
 Discharge of patients from County poor-Tiouses^ etc, — 
 No insane person confined in any county poor-house or 
 county asylum shall be discharged therefrom by any 
 keeper of such establisment, by any superintendent of 
 the poor, or by any other county authority, without an 
 order from a county judge or judge of the Supreme 
 Court, founded upon satisfactory evidence that it is 
 " safe, legal and right" to make such discharge, as re- 
 gards the individual and the public. The violation of 
 this provision shall be deemed a misdemeanor, and be 
 punishable by a fine not exceeding five hundred dollars 
 nor less than one hundred dollars, in the discretion of 
 the court. 
 
 YI. LAWS EEGAEDI^a INSANE CONVICTS. 
 
 1. Admission into State Asylum for Insane Convicts, — 
 Whenever the physician of either of the state prisons 
 of this State shall certify to the board of inspectors or 
 to the inspector in charge that any convict confined 
 therein is insane, it shall be the duty of such board or 
 of such inspector in charge to make immediately a full 
 examination into the condition of such convict, and if 
 satisfied that he is insane the said board of inspectors 
 or the inspector in charge may order the agent or war- 
 den of the prison where such convict is confined forth- 
 with to convey said convict to the State Asylum for 
 Insane Convicts, at Auburn, and to deliver him to the 
 superintendent thereof, who is hereby required to re- 
 ceive him into the said asylum and retain him there 
 until legally discharged. 
 
 Whenever any convict in the State Asylum for In- 
 sane Convicts shall continue to be insane at the expira- 
 tion of the term for which he was sentenced, the 
 
31 
 
 board, of inspectors, upon tlie superintendent's certifi- 
 cate that lie is harmless and will probably continue so, 
 and that lie is not likely to be improved by farther 
 treatment in the asylum, or upon a like certificate that 
 he is manifestly incurable and can probably be rendered * 
 comfortable at the county alms-house, may cause such 
 insane convict to be removed, at the expense of the 
 State, from said asylum to the county wherein he was 
 convicted, or to the county of his former residence, and 
 delivered to and placed under the care of the superin- 
 tendent of the poor* of such county, and the said su- 
 perintendent is hereby required to receive such insane 
 convict under his charge ; they may also discharge and 
 deliver any convict whose sentence has expired, and 
 wlio is still insane, to his relatives or friends who will 
 undertake, with good sureties, to be approved by said 
 superintendent of the State Asylum for Insane Convicts, 
 for his peaceable behavior, safe custody and comfortable 
 maintenance without further public charge ; and no 
 convict shall be retained in the said State Asylum for 
 Insane Convicts after the expiration of his sentence to 
 the state prison, unless by the order of the county judge 
 * of the county in which said asylum is situated; and the 
 said county judge, upon the application of the said 
 superintendent, shall proceed to investigate the question 
 of the insanity of such convict, and shall cause two re- 
 spectable physicians to be designated by him to exam- 
 ine said convict, and upon their evidence under oath, 
 and upon such other testimony as he shall require, shall 
 decide the case as to his insanity, and if he is satisfied 
 that such convict is insane shall make an order that the 
 said convict shall be retained in the said asylum until 
 he is recovered of his insanity, or is otherwise dis- 
 charged according to law. 
 
 2. Discharge of Insane Convicts from the Asylum,^— 
 Whenever any convict who shall have been confined in 
 
32 
 
 tlie said asylum as a lunatic sliall have become restored 
 to reason, and tlie medical superintendent of said 
 asylum sliall so certify in writing, lie sliall be forthwith 
 transferred to the Auburn State Prison, and the agent 
 and warden of said prison shall receive said convict 
 into the said prison, and shall in all respects treat such 
 convict as if he had been originally sentenced to im- 
 prisonment in said prison, though said convict may 
 have been conveyed to the said asylum from either of 
 the other prisons of this State. 
 
 EECAPITULATION OF THE FOREGOING LA*WS. 
 
 1. Disabilities of tlie Insane, — The incapacity of the 
 insane to perform any legal act is a familiar part of the 
 law of all the United States, as well as of all civilized 
 countries. 
 
 The only questions of dijfficulty arise in the applica- 
 tion of this principle to actual cases, when it becomes 
 necessary to define the degree of insanity which amounts 
 to legal incapacity, particularly in regard to criminal 
 responsibility, or the power to make a will. The rules 
 established in New York upon these points are only to 
 be gathered from the reports, and constitute no part of 
 our statutory law. 
 
 2. Custody of the Person and Estate of tlie Insane, — 
 The general care of the insane is committed to the Su- 
 preme Court. To that tribunal application must be 
 had to obtain the appointment of a committee, and the 
 question of the insanity of the alleged lunatic is de- 
 cided by a jury. Upon the recovery of the insane 
 person for whom a committee has been appointed he is 
 himself at liberty to apply to the court, and the question 
 whether the commission should be superseded will be 
 judiciously investigated. 
 
 The policy of the statute, which substantially follows 
 the common law and exhibits the same jealous regard 
 
83 
 
 ■-1 * "" • 
 
 for personal liberty, is to tirow the protection of a jury 
 
 trial and open judicial investigation around every case 
 of alleged insanity, and to prevent, as far as possible, the 
 deprivation of liberty or the control of property with- 
 out ample proof of the necessity of such deprivation, 
 and to supply ready means to obtain both liberty and 
 property when the necessity for restraint no longer 
 exists. 
 
 Those who are intrusted with the property of the in- 
 sane stand on the same footing with other guardians, 
 and by heavy bonds and severe penalties are held to 
 the faithful performance of their trust ; abuses undoubt- 
 edly occur from the occasional dishonesty of commit- 
 tees, just as others acting in a fiduciary capacity some- 
 times take advantage of their position, and are not 
 detected, but the fault lies not in the law itself but in 
 the neglect, ignorance or corruption of those who ad- 
 minister it. 
 
 3. Legal Proceedings Affecting the Insane, — ^There. 
 is no difficulty in conducting legal proceedings for or 
 against the insane when a committee has been appointed, 
 and in case such proceedings become necessary, the 
 proper course is to immediately apply for the appoint- 
 ment of a committee. Otherwise, although the course 
 of proceeding will be the same as in case of a person of 
 sound mind and memory, a judgment obtained or other 
 judicial determination made will be liable to be set 
 aside at the instance of the insane person, upon his re- 
 covery. It will be seen, however, that there is no ade- 
 quate protection afforded to an insane person in the 
 possession of property, for whom no committee has 
 been appointed, against designing relatives or others 
 who might enforce fraudulent claims against the prop- 
 erty of such an one, and inflict an injury which could 
 
 never be remedied. It would be well if there was a 
 3 
 
34 
 
 « 
 
 Statute requiring all legal process sougLt to he served 
 upon a patient at an asylum to be submitted to tlie su- 
 perintending physician, and to make it tlie duty of tlie 
 latter to report the fact to the court where the proceed- 
 ings have been instituted. It will be seen that in some 
 instances personal service upon the insane person is 
 proper, as part of a formal proceeding, but the mode 
 suggested would give immediate information to the 
 court of any attempt to make an improper use of the 
 forms of law. 
 
 The only protection against the imprisonment of the 
 insane on civil process is the power given to the county 
 judge to discharge one so imprisoned, and send him to 
 the asylum. 
 
 4. Admission to and Discharge from Asylums.-— 
 When a person becomes violently insane, so as to eh- 
 danger the security of himself or of others, the duty of 
 sending him to the asylum is compulsory, and may be 
 enforced by legal proceedings. This duty, it will be 
 seen, devolves upon various parties in succession, first 
 upon the relatives, and then upon the public officers of 
 the town or county where such insane person resides. 
 So criminals, or persons under criminal charge, or per- 
 sons in prison, if insane and their insanity satisfactorily 
 established by the mode directed in the statute, not only 
 may but must be sent to the asylum ; and the omission 
 to do so is a breach of duty upon the part of the county 
 judge within whose jurisdiction the case arises. The 
 proper county or town officers, also, are required to send 
 to the asylum those insane persons who would otherwise 
 become a public burden. 
 
 In the case of all other insane persons, it is left to 
 their own option, or the option of those having them in 
 charge, whether or not they will send them to the asy- 
 lum. Certain provisions are made for indigent persons 
 
^5 
 
 Hot panpers, and idiots are provided for at the State 
 Asylum for Idiots, at Syracuse. 
 
 As has already been said, the whole duty of discharg- 
 ing patients, other than criminals, depends upon the 
 managers and superintendent of the asylum. In case of 
 a wrongful detention hy these officers, the remedy would 
 be an action of false imprisonment. 
 
 0. Insane Convicts, — The duty of sending insane con- 
 victs to the asylum for such persons devolves primarily 
 upon the physician of the prison, whose duty it is to 
 certify to the insanity of the convict. There is an old 
 statute which allows the warden or inspector to institute 
 an investigation into the sanity of any convict ; and in 
 event the physician should neglect to perform his duty, 
 it is possible the statute referred to would enable the 
 warden to remedy the neglect. The point, however, has 
 never been decided. 
 

 STATUTOKY LAW 
 
 OF 
 
 NE1\^ YORK 
 
 REGARDING THE INSANE. 
 
 BY EDMUND WETMORE, Esq. 
 
 H