January, 1843, Shipman was, in New-Jersey, discharged as a bankrupt, and the defendant Charles T. Gray was appointed his assignee. In the vacation preceding the November term, 1842, of the supreme court, an attachment was issued out of that court, against the goods, &c. and lands and tenements of Brooks, at the suit of the defendants Smull and Gilman, by virtue of which the premises described in the mortgages were attached as the property of Brooks, subject to the mortgage to the complainant.

The bill is filed by Longstreet, to foreclose his mortgage. It states the foregoing facts, and makes Shipman and his wife, Gray his assignee in bankruptcy, Brooks, Pierce and Thorn the assignees of Brooks in trust for his creditors, Waddell his assignee in bankruptcy, Smull and Gilman the attaching creditors, and certain judgment creditors of Shipman, parties defendants.

The controversy is between the defendants Smull and Gilman, the attaching creditors of Brooks, and the defendants Pierce and Thorn, the assignees of Brooks in trust for all his creditors. There is no difficulty as to the mortgage of the complainant,

The cause was heard on the pleadings and proofs.

A. Whitehead, for the defendants Pierce and Thorn.

Gifford, for the defendants Smull and Gilman, the attaching creditors, and for the complainant.

THE CHANCELLOR. The attaching creditors insist, that by the deed from Shipman and wife, the mortgagors, to Brooks, the second mortgagee, Brooks became the owner of the property, subject only to the Longstreet mortgage; and that they have become entitled to this interest of Brooks, under the attachment. The defendants Pierce and Thorn insist, that the deed from Shipman and wife to Brooks, was made without the knowledge or consent of Brooks, and was never accepted by him; and that therefore, the bond and mortgage to Brooks remained unextinguished, and were valid securities when assigned to them, and are still valid securities in their hands.

The opposing defendants admit, that the bond and mortgage from Shipman and wife to Brooks, were bona fide; and as between them, the question presented is, whether under the testimony in the cause, the proceeds of this property, after paying the first mortgage, shall go to the attaching creditors only of Brooks, or to Pierce and Thorn in trust for all his creditors equally.

If the deed from Shipman and wife to Brooks was a business transaction between them; if Brooks really bought the property and agreed to take it in payment of the bond which the mortgage on it was given to secure; then the bond and mortgage were extinguished, and Brooks became the owner of the property, subject to the first mortgage; and this interest would be bound by the attachment, and the attaching creditors would take the proceeds of the property, subject to complainant's mortgage. But, under the evidence in the cause, I am satisfied that the deed from Shipman to Brooks was not made on a sale of the property. The making of that deed and causing it to be recorded, was an arrangement by Shipman, for purposes of his own. And if Brooks never assented to it, it would be no extinguishment of his bond and mortgage: he might assign his bond and mortgage notwithstanding. He swears he never did assent to it. So far, then, as this property may be worth more than the first mortgage, and what is due, if any thing, on the second mortgage, the creditors of Shipman are entitled to the benefit of it.

But if the deed from Shipman and wife to Brooks, should be considered as extinguishing his bond and mortgage, so that they could not afterwards be assigned, and as vesting the title of these premises in Brooks, yet the attaching creditors are in no better situation; for the assignment by Brooks to Pierce and Thorn, was made in March, 1842, previous to the issuing of the attachment, and was an assignment of all his estate, real and personal.

In reference, therefore, to the matter in controversy between the particular creditors of Brooks, who have joined in the attachment issued in New-Jersey, and Brooks's assignees in trust for all his creditors, the investigation of the case conducts us to a result which, even if it were at all doubtful, would still yield

the satisfaction of being agreeable to the doctrine of this court, that among creditors, equality is equity. The attaching creditors are still left, in reference to all that can be obtained from these premises for the benefit of Brooks's creditors, on an equal footing with all the other creditors of Brooks.

It is the opinion of the court, therefore, that the said attachment is no lien on the mortgaged premises. A reference will be ordered, to ascertain the amount due the complainant on his mortgage, and the amount due on the mortgage given by Shipman and wife to Brooks, and by him assigned to Pierce and Thorn; and a sale will be decreed, and so much of the proceeds as will be necessary, will be applied to the payment of the sums found due on the mortgages, and the residue will be directed to be paid to the assignee in bankruptcy of Charles T. Shipman.

Order accordingly.

In the matter of the alleged Lunacy of DAVID ROGERS.

A guardianship in lunacy may be superseded, on its being made to appear that he who had been found lunatic, is restored to sanity.

The usual course is, to refer it to a master to take proofs as to the state of mind of the petitioner, and to report the proofs and his opinion thereon. But though the master reports the proofs and his opinion thereon that the petitioner is restored, the chancellor, in his discretion, may direct the pe titioner to appear before him for inspection and examination.

The chancellor, in his discretion, may discharge the guardianship, on the ground of restored sanity, or direct an issue to try the question.

IN 1843, a commission in the nature of a writ de lunatico inquirendo, was issued, directed to commissioners therein named, to inquire of the lunacy of David Rogers. The commission was executed in 1843, and an inquisition returned, finding that said Rogers was a lunatic.

In February, 1845, a petition was presented to the court by Rogers, supported by affidavits of different individuals, praying that his guardians may be discharged, and that the in

quisition and the proceedings thereon may be vacated and set aside.

An order was thereupon made, referring it to a master to inquire, whether the said David Rogers is restored to his reason and understanding, and is of sound and disposing mind and

memory.

The master made his report on the 8th of April, 1845, that the petitioner was restored to his reason and understanding, and was of sound and disposing mind and memory; and sent up the testimony on which his report was founded.

This report was not satisfactory to the guardians; and the chancellor directed an argument before him, and ordered that the petitioner be brought before the court for inspection and examination. This was done, and on that occasion he was subjected to a protracted examination, under the direction of the court, by questions propounded to him, by his counsel and the counsel of the guardians.

The matter of the petition was then argued, on the testimony returned by the master, and the answers of the alleged lunatic to the questions which had been propounded to him.

Stratton and H. W. Green, for the petitioner.

Spencer and W. L. Dayton, for the guardians.

Cases cited for the petitioner. sec. 12; 49, sec. 14; 328, sec. 15;

Collinson on Idiots, 48, Saxton, 24.

Shefford on Lunatics, 43,
Ibid, 277, 441; 1 Eng.

Cases cited for the guardians. 51, 206; 3 Brown's Ch. Rep. 403; Eccl. Rep. 296; 4 Ibid, 186, 191; 13 Ves. jr. 88; 11 Ibid, 11; 1 Collinson, 324, sec. 3.

THE CHANCELLOR. I am clearly of opinion, that on the testimony and the inspection and examination of the petitioner, a final order should not be made against the prayer of the petition. The only doubt I have been able to entertain is, whether an issue should not be awarded. But on consideration of the whole case, I am satisfied that a final order vacating the in

quisition should be made. I do not propose to go at large into an examination of the testimony, or into a statement of the reasons which have brought me to this conclusion. It is a subject on which the ordinary rules of reasoning furnish no certain guide, and in reference to which, deductions apparently the most correct, are not to be relied on.

Is the petitioner now capable of managing his own affairs? Looking at the testimony without reference to the finding of the inquisition, it is my decided opinion that he is so. What influence, then, should be allowed to the fact, that two years ago he was found to be incapable? It is certainly entitled to some influence; but not on the ground, that though sane now he may again be, and perhaps is more likely to be afflicted in the same way. The court can act only in reference to his present state of mind; the future is inscrutable to us all.

The only influence it can properly exert on the mind of the court, is, in causing apprehension that all the evidences of his restored sanity, derived from all the sources to which we may address ourselves, may, from the insidiousness of a distemper of the mind, be fallacious. This apprehension should influence the court to proceed with caution, in vacating an inquisition. Yet there are frequent instances of restoration.

This brings us to the consideration, what degree of doubt the court should indulge, arising from the inquisition two years ago, against the idea of his present capability.

On one side it was contended, that the present question should be determined without reference to the finding of the inquisition two years ago; that not only the future, but the past should be shut out. If mind is what some suppose it to be, this may be correct; but it is not consistent with my ideas of it, and of the laws that govern it.

On the other side it was contended, that the inquisition should not be vacated, unless the court be satisfied beyond all doubt, of a permanent restoration of sanity. This may do when we come to be so well acquainted with the nature of mind, as to be able to say of the mind of a sane individual, that he will, beyond all doubt, always remain sane.

I suppose it to be an approach to the true rule for the present action of the court, to say, that if, taking the finding of the