356 COLEGATE D. OWINGS' CASE.—1 BLAND.

* It is the special duty of the State to take care of those
379 who suffer under any natural infirmity which incapacitates
them from taking care of themselves. And, therefore, to adopt a
maxim which in its operation casts them out from the protection
of the law, of which they stand so much in need, and leaves them -
to be stripped of their property by the most palpable fraud, ap-
pears to be exceedingly unjust and cruel. The reason of this
maxim does, in effect, declare, that the unfortunate are to be left
unprotected, because they are unfortunate; that no care is to be
taken of an innocent lunatic, because, being a lunatic, he knows
not what he does, and cannot take care of himself. While on the
other hand, it virtually proclaims, that iniquity shall be protected,
and that the defrauder shall be allowed to profit by his own wrong,
and to enjoy his plunder in perfect security.

It is said, that " if the common law had given a writ of non
compos mentis to him who has recovered his memory after aliena-
tion, certainly the law would have given him remedy for the main-
tenance of himself, his wife, children and family, although he re-
covered not his memory but continued non compos mentis." Bev-
erley's Case, 4 Co. 124. I do not clearly see the force of this infer-
ence; but it would seem, from what is said, that because a man
cannot have a deed set. aside *in order to recover his prop-
380 erty, he is therefore utterly without remedy for the main-
tenance of himself and family during the continuance of his in-
sanity.

This, however, is not altogether correct. A right of property
necessarily implies, that its owner has a remedy for the recovery
of it; and also, that he is invested writh the means of protection
in the enjoyment of such property as the law allows him to dis-
pose of without any other limit than that in doing so he shall not
injure his fellow-citizen. But if the owner has a wife and children
he is bound to maintain them, at least so far as his property affords
him the means. This maxim applies only to the contracts of the
lunatic; it does not prevent him from vindicating his right to his
property by an action of ejectment, trespass, trover, &c. 3 Bac.
Abr. 541. Nor does it release him from any obligation, which his
property will enable him to discharge. Now it is in execution of
this his own right, and in fulfilment of this his duty to his family,
that the Court of Chancery has always acted, in taking care of
persons who are non compos mentis, and their estates. For the
Court is bound, in behalf of the State, to keep the lunatic, his
wife, children and household with the profits of his lands and

ferred, that by a legal appearance at the trial, in criminal cases, is meant the
actual presence of the mind as well as the body; thus recognizing the posi-
tion, that in a state of insanity the mind has left the body, and cannot be
brought before the Court with it.—4 Blac. Com, 25.