¶1By the Court,
¶2The care and custody of persons incapable of conducting their own affairs in consequence of habitual drunkenness, as well as of idiots, lunatics and persons of unsound mind, belong to the chancellor. 2 R. S. 52, § I- If the plaintiff recovers in this action he will not be allowed to touch either the person or the estate of the defendant, but will be obliged to apply to the committee or the court of chancery for the payment of his debt. It is probable that he will then be required to establish the justice of his demand without any reference to the liquidation in this court, and without any allowance for the costs of this suit. The present proceeding is useless, to say the least; and now that the plaintiff has learned the appointment of a committee, he cannot continue the prosecution of the action without the peril of answering for a contempt of the court of chancery. Matter of Heller, 3 Paige, 199. Matter of Hopper, 5 id. 489.
¶3But I must leave the court of chancery to enforce its own jurisdiction. It is no ground for setting aside proceedings at law, that the defendant was a lunatic or otherwise incompetent to manage his own affairs at the time the action was brought, or that he has become so since. Kernot v. Norman, 2 T. R. 390. Nutt v. Verney, 4 id. 121. Anon, 13 Ves. 590. But the plaintiff will do well to consider whether he can safely proceed to judgment, until a guardian or attorney has been appointed for the defendant. Beverley's case, 4 Co. 124. Faulkner v. McClure, 18 Johns. R. 134.
¶4Motion denied.