Collins v. Toppin. without the leave of the court, were valid up to and including the appointment of the receiver, and, after that, invalid. Lord-Justice James (at p. 91) says: "The law of the court of chancery undoubtedly is that, in certain cases, where there is a person of unsound mind, not found so by inquisition, and therefore incapable of invoking the protection of the court, that protection may, in proper cases, and if and so far as may be necessary and proper, be invoked on his behalf by any person as his next friend. But every person so constituting himself officiously the guardian, committee and protector of a person of unsound mind does so entirely at his own risk, and he must be prepared to vindicate the necessity and propriety of his proceedings if they are called in question, and to bear the consequences of any unnecessary and improper proceedings. He takes the risk, moreover, of having his proceedings wholly repudiated by the lunatic, if he should recover his reason, just as the next friend of an infant runs the risk of having his proceedings wholly repudiated on the infant attaining his full age." These citations from the English authorities seem to show that the practice prevails there. The practice of suing by a next friend was adopted in the case of Kidder v. Houston, decided by Vice-Chancellor Emery, and reported in 47 Atl. Rep. 336. There a person of weak mind, not declared a lunatic, brought suit by a next friend by leave of the court. I venture to suggest that the lack of power in this court to entertain a bill filed, by its leave, by the next friend of a person incapable of managing his affairs, by reason of mental incapacity, would show a serious defect in our system of jurisprudence. Numerous cases arise where persons have recently become insane whose rights may require protection by the aid of this court before it is possible to procure a finding of lunacy by an inquisition and the appointment of a committee, and the estate of the lunatic would suffer materially by the delay resulting from the taking of such proceedings and from their liability to miscarry. Again, there is a large class of persons who are mentally incapable, by reason of age and the like, of managing their affairs, and whose affairs are properly looked after by competent friends, Collins v. Toppin. who refrain, out of regard for the feelings of their relatives, from taking proceedings to have them judicially determined incapable. A convenient and proper mode of protecting the pecuniary rights of these persons is by the action of a next friend appointed by the chancellor. The present case is a striking illustration of the importance of this practice. By the bill and affidavits annexed it appears that the complainant was the wife of Martin Collins, who died in October, 1900, and, by his death, she became the owner of valuable and productive real estate in Jersey City. Twice in his lifetime she had been committed to the insane hospital at Morris Plains, upon physicians' certificates and at the instance of her husband, and was there at the time of his death. She has no children, and her sole next of kin and heir presumptive is her brother, the next friend named in the bill. He instituted proceedings in this court in December, 1900, to have her declared a lunatic and a guardian appointed. In the due course of that proceeding a jury was empaneled, and the physician in charge of the hospital at Morris Plains and Dr. John D. McGill, of Jersey City, who had been her family physician, both testified to her insanity, and that she was not likely to recover. county physician of Hudson county and the warden-a physician-of the county hospital for insane paupers, after a single examination of the complainant, testified to the contrary, and the jury found her of sound mind. She was then discharged from the Morris Plains hospital, and went to live with the defendant in Jersey City. In June, 1901, she conveyed the real estate here in question to the defendant, and a few weeks afterwards was, without the knowledge of her brother, who lived in New York City, committed to the pauper lunatic asylum of Hudson county, under the care of the very physician who had testified before the jury to her sanity. The Under these circumstances, unless a bill could be promptly filed, accompanied by a lis pendens, or followed by an injunetion, this valuable real estate might, by conveyance, come to the hands of a bona fide purchaser before another successful inquisition could be carried through, and the complainant compelled to pass the remainder of her days in a pauper's bed. Von Schuller v. Commercial Invest. Bldg. & Loan Ass'n. The result of my examination of the subject is that I conclude-first, that a suit may, by leave of the court, be maintained in this court by a next friend in behalf of a lunatic, who has not been so found upon inquisition; second, if the bill be filed in behalf of a lunatic by next friend, without leave of the court, the proper mode open to a defendant, to take advantage of want of leave, is by motion to take the bill from the files; and, under a like motion, the propriety of the original order for leave to file the bill may be drawn in question. This conclusion does not necessarily hold that a demurrer was not the proper remedy in the case dealt with by Vice-Chancellor Grey, where the lunatic was one of several complainants. The foregoing has been submitted to the chancellor, and he concurs therein. MARIE VON SCHULLER υ. THE COMMERCIAL INVESTMENT BUILDING AND LOAN [Submitted and decided April 14th, 1902. Filed September 8th, 1902.] A mortgagee promptly delivered to the proper register a mortgage covering both real and personal estate, informing him of such fact and directing him to record the same accordingly. The register entered it as a real estate mortgage on his private index, and in about two weeks recorded it in the book of real estate mortgages. Nearly thirty days afterwards it was entered in his private index for chattel mortgages, and, in due course of business, recorded in the book for chattel mortgages. The register retained possession of it in his office until after it was recorded as a chattel mortgage. An inspection of the instrument indicated its character. The private indexes kept by the register were not recognized by the statute. P. L. of 1898 pp. 686, 687 §§ 41. 42, require that instruments be recorded without delay.-Held, that the mortgagee was entitled to the benefit of the recording acts as of the date the mortgage was delivered to the register, and therefore a subsequent execution creditor could not claim the property covered by the mortgage. Von Schuller v. Commercial Invest. Bldg. & Loan Ass'n. Heard on bill, answer and proofs. Mr. Max Salinger, for the complainant. Mr. Henry V. Condict, for the defendant. PITNEY, V. C. The contest in this cause is over a sum of money in the hands of the sheriff of Hudson county, the proceeds of the sale of certain goods and chattels. The complainant claims by virtue of a judgment and execution recovered against one Witz, and the defendant claims under a chattel mortgage made by the same person, executed and recorded prior to the entry of the judgment and the levy of the execution. Two objections are made by the complainant to the defendant's right of priority-first, that the affidavit annexed to the chattel mortgage is insufficient (a careful reading of it discloses no defect); and second, that the mortgage was not recorded promptly after its execution and delivery. The facts are that the mortgage covers both real and personal property, and was promptly delivered to the register of the county of Hudson, where the parties all reside and where the property is situate, for record. The evidence satisfies me that the messenger who delivered the mortgage to the register's deputy stated to him at the time that it was a mortgage of both real and personal property, and should be recorded as suchonce as a mortgage of real estate, and once as a mortgage of chattels. This was probably misunderstood by the deputy receiving the paper. He entered it immediately on a book, which he kept for his own convenience, called an index, but which I have always heard called a tickler. At the time of entering it he stamped on the back the date of delivery, with the blank for the hour filled in in ink. The register kept two of these indexes, one for mortgages of real estate, and one for mortgages of chattels; and the entry of the receipt of this mortgage was in the book of mortgages of real estate only. It was transcribed, in the regular course of business, about two weeks or a little more after it was received, in the book of mortgages of real estate. Von Schuller v. Commercial Invest. Bldg. & Loan Ass'n. Twenty-seven days after it was so delivered it was entered as a mortgage of chattels in the index, or tickler, of chattel mortgages, and, in due course of business, recorded in the proper book of chattel mortgages. In the meantime it was safely kept by the register among the instruments left with him for record, and was not taken from the office. Upon these facts I am clearly of the opinion that the mortgage is entitled to the benefit of the recording acts. The mortgagee performed his whole duty, under the statute, when he delivered the mortgage to the recording officer, with directions how to record it; and I may add that an inspection of the document at once disclosed its character to be both that of a mortgage of land and a mortgage of chattels, for attached to it, and, when folded, immediately covering the acknowledgment, was the proper affidavit required by the statute for a chattel mortgage. There was nothing in the endorsement on the mortgage, when delivered to the register, to indicate whether it was a mortgage of chattels or a mortgage of land; and, in addition to the affidavit of which I have spoken, an examination of the body of the instrument disclosed the fact that it was a mortgage of chattels. If the register had made no entry whatever of the mortgage upon his temporary index, or tickler, the record of it would have been perfect, and, when transcribed, would relate back to the day of its delivery for record. The memorandum of the receipt of the instrument in a book kept for that purpose is not a record, in any sense of the word, upon which any person searching in the clerk's or register's office has a right to rely. It is not kept in pursuance of any provision in the statute regulating that subject. The statute (Rev. of 1898 pp. 686, 687 §§ 41, 42) makes it the duty of the clerk to provide certain books, and to record, without delay, every instrument of the character mentioned in section 20 in the proper book; but it is a matter of common knowledge that such instruments cannot be, and are not, immediately recorded. Every person who examines the records for instruments of that kind knows that there are a number of instruments waiting to be transcribed, and it is his duty to look among those instruments if he wishes to make a complete search to date; and he has no |