the Master to state special circumstances, and to examine any of the parties on interrogatories (o). In Lord Portsmouth's case, on the order for reference as to maintenance of the lunatic, it was also referred to the Master to tax and settle the reasonable costs which had been incurred by the committee of his estate, and by the Countess of Portsmouth, who opposed the commission (p). After it has been ascertained that the lunatic has funds applicable to the payment of costs, which have been taxed and allowed, an order may be obtained, on petition, for payment of them. It seems, that if parties vexatiously oppose an application for a commission, which is absolutely necessary for the protection of the lunatic, the Court will compel them to pay the costs incurred by such opposition (q). The costs incurred by a solicitor in opposing a commission, where the party is found to be of sound mind, must be paid by the person who employs him, unless the Lord Chancellor orders the person who prosecuted the commission to pay the costs of an improper application for one. Even if the Lord Chancellor will not award costs in such a case, yet an action may be maintained for taking out a commission of lunacy maliciously, and without sufficient cause; and the costs incurred by the party in resisting it can be taken into consideration by the jury in assessing damages (r). In a recent case, a rule was obtained in the Court of Exchequer against an attorney, to shew cause why his bill of costs, for defending a party against a commission of lunacy, under which he was found sane, should not be taxed. It was contended, on the part of the defendant, that the bill could not be taxed by a Court of law or the Court of Chancery, because the inquiry did not partake of the nature of a proceeding either at common law or in equity; and on the other side, that a Court of common law could tax the attorney's (0) In re Frank, 26 March, 1831. (p) In re The Earl of Portsmouth, 3 June, 1823. (q) In re Smith, 1 Russ. 348, 8 March, 1826. (r) See post, Chap. ix. s. 1. bill, as the writ de lunatico inquirendo issued from the petty-bag office, and was returnable there. Chief Baron Lyndhurst, after having taken time to consider the question, expressed his opinion, without deciding the point before the Court, that the officers of the Court of Chancery were more competent to entertain the subject than those of the Court of Exchequer, as the former had more experience in such matters (s). When the jury is ready to return their verdict, and offer to do so, the commissioners must receive it, or they will incur a penalty of 1007. (t). The inquisition, by statute 36 Ed. 3, c. 13, is required to be made by indenture; and an inquisition not indented was held void (u). The inquisition must be under the seals of twelve jurymen, otherwise the officer by whom it is taken will be liable to a penalty of 1007. (v). If the jury agree upon their verdict, and deliver it in writing to the commissioners, it will be void, unless indented and sealed (w). The commissioners are to deliver to the jury, and the jury is to receive, a counter-panel of the inquisition by them presented, indented and sealed, which the juryman first sworn is required to keep, lest the commissioners should alter or embezzle the inquisition; in default of so doing, the commissioners are to forfeit 100%. and each juryman 20s. (x). The commissioners are required to execute the commission within a month after it has issued; and to return the inquisition with the commission into Chancery, within a month after it has been taken; in default they are liable to a penalty of 401. (y). In a case, where the commission had not been returned for two years and more after it had been executed, and the solicitor who prosecuted it refused on application to give any (s) Bywater v. Davis, in the Court of Exchequer, 3rd & 9th May, 1832. (t) 1 Hen. 8, c. 8. (u) Barantine's case, Dy. 170 a. (v) 1 Hen. 8, c. 8. (w) Lord Powis's case, Dy. 170 a. (x) 1 Hen. 8, c. 8. (y) 18 Hen. 6, cc. 6, 7; 23 Hen. 6, c. 16; 1 Hen. 8, c. 8. information respecting it, and a petition was presented that the inquisition might be returned, which was afterwards done; the solicitor was ordered to pay the costs of the petition (≈). A person's keeping a commission of lunacy by him for several years, without ever putting it into execution, is a contempt of Court; and such commission, as well as a petition under it, was discharged with costs, on account of its dangerous tendency, and the improper use which in many respects might be made of it, particularly to terrify and distress the person against whom it issued (a). The clerk of the petty-bag office of the Court of Chancery, or his deputy or other officer having authority to receive any office or inquisition, which ought to be returned into Chancery, must receive the same and put it on the files, to remain of record, within three days after it has been received or offered to him, or in default forfeit 40%. And if such clerk, or his deputy or other officer, refuse to receive such office or inquisition when offered, the commissioners are relieved from the penalty to which they would otherwise be liable for not returning such office or inquisition, provided it be returned within a month. The clerk of the petty-bag of the Court of Chancery must certify the transcript of every office or inquisition taken before any commissioners, to the Court of Exchequer, the next term after the receipt thereof, upon pain of forfeiture for every default of 51. (b). On the accidental loss of a commission of lunacy, upon which an inquisition had been taken, and signed by the jury and three commissioners, an order was made for the clerk of the custodies to make out a duplicate of such commission, bearing the same teste, and directed to the same commissioners; and for the three acting commissioners under the former commission to annex to such duplicate, when sealed, the inquisition which had been taken, and to return the same forthwith (c). (z) In re Matthew, 18 Nov. 1828. (a) Anon. 2 Atk. 52. (b) 1 Hen. 8, c. 8. (c) Ex parte Ruine, 19 Ves. 589. SECTION V. Of the Inquisition under the Commission of Lunacy. THE commission and the verdict must be consistent upon the face of the record, which cannot be, unless the verdict is either in the words of the commission, or in equipollent words. But, in inquiries under commissions, the jury have not been strictly limited to the question whether lunatic or not; but if they find that the party is of unsound mind, it has been held a sufficient finding. The Lord Chancellor has no authority to act upon the liberty and property of the subject, except upon a verdict expressed in legal terms; and if the jury should return a special verdict, stating, that they could not say whether the party was lunatic or not, and the evidence, the Court cannot on such a verdict determine the fact of insanity (d). Where a special return to a commission of lunacy was made and filed, the commission was quashed, and another commission issued; if the return had not been filed it would have been a void return (e). The proper return to a commission of idiocy or lunacy, where the party is not found an idiot or a lunatic, but is considered by the jury as an object fit to be under the superintendence of the Court of Chancery, is that the party is of unsound mind, so that he is not sufficient for the government of himself, his lands, and tenements: and therefore, where the return was, 66 that the party was so far debilitated in his mind, as to be incapable of the general management of his affairs; and had been in the same state of mind for six months last past," the inquisition was quashed, and a new commission issued (ƒ). (d) Ex parte Cranmer, 12 Ves. 449. (e) Ex parte Freak, Sel. C. C. 47. (f) Ex parte Cranmer, 12 Ves. 445. It is settled, that if the jury find merely the incapacity of the party to manage his affairs, but do not infer from that and other circumstances unsoundness of mind, though the party may live where he is exposed to ruin every instant, yet upon that finding the commission cannot go on (g). A return, finding " that a party was, from great weakness of mind, incapable of governing himself and his lands," was held to be illegal and void (h). Inquisitions have been quashed, with returns finding persons in the following condition, namely—“ Not sufficient to manage his person and estate" (i); "not of sufficient understanding to manage her own affairs" (k); "not a lunatic, but incapable" (7); "not a lunatic, yet not proper to take care of his affairs during his fits" (m); "weak for the last twenty years" (n); "worn out with age, and incapable of managing her own affairs" (o); "had been a lunatic, but that, at that time, he enjoyed a lucid interval, and that he was not at present capable of the management of his own affairs, and that he had been in the same state from the 9th of February last" (p). An inquisition may be supported, finding a person of unsound mind, although neither an idiot nor a lunatic. An inquisition finding a party "not a lunatic, but of unsound mind, so as not to be sufficient for the government of herself, her lands," &c. was considered good' (q). For, "of unsound mind" are legal and technical words, indeed they are the proper terms of a plea; it would be improper in pleading to describe a man lunaticus instead of non sanæ mentis (r). (g) Sherwood v. Sanderson, 19 Ves. 286. but we judge him a person not proper to be trusted with the manage (h) Ex parte Barnesley, 3 Atk. ment of his affairs during the con168. tinuance of his epileptic fits." In re (i) Ex parte Read, 1 Atk. 160; Hals, 30 Nov. 1743. 2 Inst. 405. (n) Hulsey's case, 3 Atk. 173. (q) Sherwood v. Sanderson, 19 Ves. 280; S. C. Coop. C. C. 108. (k) Ex parte Harvey, 3 Atk. 169. (1) Ex parte Ashton, 3 Atk. 169. (m) Ex parte Hals, 2 Ves. sen. 405. It appears, that the lunatic in this case was an infant, and had been secreted from the jury, who returned 352. the following verdict "not a lunatic, (r) Dennis v. Dennis, 2 Saund. |