the personal estate would probably increase during the life of the lunatic, and it was consequently for the advantage of the next of kin to preserve and be careful of such life. And his Lordship appointed one of the petitioners committee of the person (c).

The relations of a lunatic are not, without some specific and strong grounds of objection, to be passed over in the appointment of committees, and have their affliction increased by the insidious imputation which must be the consequence, for the mere purpose of introducing a stranger. The feelings of relations are not to be put in competition with the benefit of the lunatic; but a relation will not in general be excluded from the office of committee unless proved to be unfit. The governing principle has always been, that, if the connections by blood and affinity of the lunatic can supply a proper person for the office, the influence of the family, which ought to be confined in its own circle, is not to be transferred to a stranger (d).

But the claims of consanguinity, although entitled to great regard, create no right with respect to the appointment of a committee of the person; in case of misconduct or incapacity, the nearest relations will be set aside in favour even of strangers. In the case of a lady found a lunatic, the custody of whose person was committed to a stranger; the sister of the lunatic, who had proposed making considerable gain by the allowance for maintenance, preferred a petition, insisting, that, as next of kin, she would be the most proper committee; that, being entitled to administration upon the death of the lunatic, she would be most

(c) Ex parte Ludlow, 2 P.Wms. 636. The distinction, upon which, in the two cases last cited, that rule was considered not applicable to the next of kin, from their interest in the probable increase of the personal estate during the life of the lunatic, is not satisfactory. To those upon whom the suspicion which was the foundation of that rule could attach,

immediate gain is a stronger temptation than the hope of future advantage, subject to disappointment not only by the casualties of life, but also, where the state of the lunatic admits it, by the liberal application of his income for maintenance. See 7 Ves. 590 a, note 44, 2nd edition.

(d) Ex parte Le Heup, 18 Ves. 227.

careful of the property; and that the objection to a guardian who was next of kin entitled to the inheritance did not apply to the present instance, there being no inheritance. The Lord Chancellor, however, held the appointment to be a matter of prudence, and no right; and would not remove the custody from the stranger, nor ever appoint a person committee of a lunatic, who would make a gain of the office. The sister was directed to render a yearly account before the Master; and the stranger was continued in the situation of committee (e).

And in another case it was held, that a person proposed as committee had rendered himself unfit for the office by an agreement to give to another person three fourths of the profits as committee (ƒ).

In a case where it appeared by the Master's report that the lunatic's property amounted only to the sum of 5231.; and that the lunatic was a pauper belonging to, and supported by a parish; and that the brother and sisters of the lunatic were in very indigent circumstances, and some of them absent-the Lord Chancellor appointed the rector, and two other inhabitants and freeholders of the parish where the lunatic resided, committees of her person and estate, on their giving the usual security; and, after payment of the taxed costs, the dividends from time to time to accrue in respect of the lunatic's estate, were ordered to be applied in her maintenance (g).

Where the non compos is a female, and unmarried, the custody of her person will be given to one of her own sex, in preference to one of the other. In a case where two persons related in the same degree to a female lunatic, the one a man and the other a woman, and neither of them being heirat-law to the lunatic, contended for the custody, and the objections against the one were no stronger than those against the other; the custody was granted to the woman, as being of the same sex, and so probably better knowing how to take care of the lunatic; and as it had been found

(e) Lady Cope's case, 2 Ch. Cas. 239; 1 Eq. Cas. Abr. 277.

(f) Ex parte Fletcher, 6Ves. 427. (g) In re Jones, 5 Aug. 1825.

by experience, that granting it to two had proved inconvenient, by occasioning lawsuits, and putting the estate to great expense, the custody was granted to one only (h).

Unless there exist strong reasons for exclusion, the custody of the person of a married man non compos will be committed to his wife; and the custody of a married woman non compos, to her husband. Even in a case where the wife had been committed for a contempt of Court, in not producing her husband before the commissioners under a commission of lunacy, the custody of his person was granted to the wife, on her being discharged from the commitment (i).

In most cases, the strongest presumption is, that the wife of a lunatic is the most proper committee of his person, as being most capable of administering to his comfort, and most likely to alleviate his calamity; but, if the wife insists upon acting upon a system of her own, inconsistent with that recommended by the best advice, and her treatment is so injudicious as probably to promote his disorder, whether from her being under the direction of another person, or acting with her own inclination from want of judgment, or from motives of mistaken affection, although she is not on that account absolutely disqualified for the appointment, yet another person will be named to act with her.

The Master having approved of the wife of a lunatic and his uncle, as committees of his person, and of another person, who was not related to him, as committee of his estate, rejecting a proposal of the uncle and a friend of the family, a petition was presented by the mother of the lunatic, praying, that she and the uncle might be appointed committees of the person, and not the wife; and that the uncle and the friend might be appointed committees of the estate, instead of the person approved by the Master. Lord Chancellor Eldon said, that he should have felt great pain in exposing the wife to the possible consequences of being sole committee of her husband, and thought the Master quite right in not appointing her the sole committee. All who were acquainted with the subject, knew that a person who filled that of(h) Ex parte Ludlow, 2 P. Wms. (i) Lord Wenman's case, 1 P.

fice, in the exercise of which affection must be tempered with firmness, was often under the necessity of doing what was unacceptable to the object of his care; and a rooted, though unjust, aversion was the usual effect of a line of conduct, ungrateful perhaps to the feelings, but essential to the recovery of the lunatic. Difficulty arose from the different views of the parties; but, considering the circumstance by which the wife was influenced, meaning extremely well, but much mistaken and misled by circumstances she could not understand, though her affection might produce a wish to be constantly with her husband, she must intrust his medical care and treatment to some persons in whose judgment and humanity she could confide; and as his Lordship could not be induced to take from her the care of his person, he must declare that it was for them not for her to determine what

was medically right or wrong. He was therefore glad that the uncle, who was a physician, was willing to co-operate with her, and he appointed them joint committees of the person (k).

An order is sometimes made, that the committees of the person of a lunatic be at liberty to appoint physicians to visit the lunatic from time to time as they may think proper (1).

The unfounded prejudice of a lunatic against a person proposed as committee has been taken into consideration in a case, where it appeared that the appointment as committee of one in the profession of the law would have a tendency to irritate the lunatic (m).

Sometimes the Court, on a reference to the Master to ap point committees, will recommend the Master to approve of such proper person or persons, if such should be proposed or could be found, whose place or places of residence in the county was or were such as to admit of his or their frequently visiting the lunatic, and inspecting the management of his concerns (n).

(k) Ex parte Le Heup, 18 Ves.

221.

(l) In re Worsley, 8 Aug. 1829.

(m) Ex parte Fletcher, 6 Ves. 427. (n) Ex parte Fermor, In re Errington, Jac. Rep. 405.

The custody of a lunatic may be granted to a feme covert, though not sui juris, but under the power of her husband. It is usual, however, to join the husband with her in that office (0).

If, when a committee of the person has been appointed, the parties in whose power the non compos is refuse to deliver him up, possession of his person may be obtained, either by habeas corpus or by application to the Lord Chancellor, who will make a summary order for the delivery of the non compos to the committee, or any other person appointed by him, and commit the parties in case of disobedience (p).

The committee of the person of a lunatic has an important and delicate trust reposed in him: it is his duty to administer all the comfort and amusement which the nature of the case will admit, and the funds of the lunatic will afford; and if the unhappy person be not under his immediate care, the committee ought to engage humane and proper persons to take charge of him, and to consult such intelligent and kind physicians as will employ their utmost skill and efforts for the purpose of restoring the individual to the enjoyment of his senses and his liberty, and not, as it is apprehended is too often the case, prolong and aggravate his disease by unnecessary and petty acts of tyranny, by insults and by provocations, which even a person of sane mind would find much difficulty in bearing with perfect composure. Cases undoubtedly occur, in which it is necessary to put lunatics under much restraint; but in the present age it is admitted, that kindness and reasonable indulgences not only promote their immediate comfort, but have a tendency to increase the probability of their being restored to a sound state of mind, a result which interested motives ought not to be allowed to retard or frustrate.

The Lord Chancellor will in some cases make orders for

(0) 3 P. Wms. 111, note; Ex parte Lyne, Cas. tempore Talbot, 143; Ex parte Mildmay, 3 Ves. Jun. 2.

(p) Ex parte Cranmer, 12 Ves. 456.