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A return, finding a party “insanæ mentis, et sic deprivatus rationis et intellectus, ita quod regimini sui et ipsius status omnino incapax existit," was held good (s).

Where a party was found "an idiot, not having lucid intervals for the space of eight years last past," Lord Chancellor Nottingham held this repugnant; but it was decided good at law, on the ground that idiocy implied an infirmity a nativitate, and consequently the eight years were surplusage (t).

Where a jury returned "that the party, at the time of taking the inquisition, is a lunatic enjoying lucid intervals, and during such lucid intervals is competent to the government of himself and the administration of his own affairs;" and a petition was presented, praying a reference to approve of a committee, or such other order as the Court might think fit-Lord Chancellor Eldon said, that he could not make a grant of the committeeship upon that finding, and directed a search to be made as to the course of proceedings in similar cases. After several precedents of inquisitions had been produced from the office of the Secretary of lunatics, the Lord Chancellor thought nothing could be done but to issue a new commission. There was no instance of a melius inquirendum in such a case. It was then objected, on the part of the supposed lunatic, that a commission was unnecessary, the evidence shewing that he was in such a state of mind as to be competent to the management of himself. His Lordship said, that a short petition might be presented against the issuing of the commission; which, having been done, and affidavits filed on both sides, his Lordship thought it a proper case for a commission, and a new one was issued (u).

It is a rule of law, where a jury state their premises, and draw a conclusion, which does not of necessity follow from the premises, that the conclusion is not to be taken by itself. Thus, where, under a commission of lunacy, the jury found "that the party is not a lunatic, but that partly from paralysis, and partly from old age, his memory is so much im43; 1 Vern. 16.

(s) Ex parte Pauncefort, 3 Atk.

(u) Ex parte Atkinson, Jacob, Rep.

170.
(t) Prodgers v. Frazier, 3 Mod. 333.

paired, as to render him incompetent to the management of his affairs, and consequently of unsound mind, and that he had been so for the term of two years last past:" the inquisition was quashed, and a new commission was ordered to issue (v). Under the second commission, the jury found the party to be of unsound mind.

An inquisition may be good, notwithstanding the omission to state whether the party has or has not lucid intervals. Thus, a return finding a party a lunatic and of unsound mind for the space of six years and upwards, was objected to as irregular, in not finding whether the lunatic had or had not lucid intervals. It was in evidence, that the commissioners neglected to state that circumstance to the jury; that the foreman took no notice of it; that it was not omitted through accident; for, in a conversation about settling the inquisition, some discourse arose as to its insertion, when one of the commissioners said it was better not to insert it; and it was accordingly omitted in the presence of the greater part of the jurors, if not of all. Lord Rosslyn observed, if the usual course is to find expressly, whether the person does or does not enjoy lucid intervals, this inquisition is not returned in the usual form; for he could not take the fact of lucid intervals to be found either way. He considered, however, the inquisition as not having in express terms, but by implication, negatived lucid intervals; and directed an inquiry, whether there had been an uniform course. After an interval of a few days, his Lordship said, that he had caused search to be made; and that, in Ex parte Barnesley (w), no objection was taken upon that ground; and that the return was certainly according to the usual course, as very few of the numerous references in that case stated whether the party had lucid intervals; and all that could be done was to allow a traverse (x).

Where there is any misbehaviour in the execution of a commission, it must be examined into; and if the Court see cause, they may quash the inquisition, and direct a new commission to issue (y).

(v) In re Holmes, 4 Russ. 182. (w) 3 Atk. 168, 184.

(x) Ex parte Ferne, 5 Ves. 450. (y) Ex parte Roberts, 3 Atk, 6.

When a regular return is made, and there is sufficient evidence in the case to satisfy the Lord Chancellor that the party is the proper subject for a commission, a new one will be directed to issue.

In one case, three commissions were applied for against a party before he was found non compos (z).

Lord Chancellor Hardwicke, on quashing an inquisition as repugnant, ordered a new one to issue (a). Lord Erskine, after quashing an inquisition for uncertainty, was strongly inclined to direct a melius inquirendum; but finding, upon inquiry, that it had never been directed in lunacy, he issued another commission (b). And the same course was pursued by Lord Eldon (e), and afterwards by Lord Lyndhurst (d).

In one case, where an inquisition found a person of sound mind, who appeared to be in a state of imbecility, Lord Eldon directed two physicians to visit the party, for the purpose of determining whether the state of her mind was competent to the management of her affairs; and instead of issuing a second commission, an order was made to restrain the party from executing any deed or will disposing of funds in Court, except in the manner directed by the order (e).

SECTION VI.

Of Traversing the Inquisition of Lunacy.

BY the common law, when the King became seised of any estate of freehold or inheritance, by matter of record,

(*) Lord Wenman's case, cited in 2 Ves. sen. 408.

(a) Hals's case, 2 Vez. sen. 405. (b) Ex parte Cranmer, 12 Ves. 454. r parte Roberts, 3 Atk. 5.

(c) Ex parte Atkinson, Jac. Rep.

333.

(d) In re Holmes, 4 Russ. 182. (e) Ridgway v. Darwin, 8 Ves. 65. See post, Chap. x. s. 3.

whether judicial or ministerial, or by matter of fact found by office, the party aggrieved could have no traverse of the inquest; but he was put to his petition of right, in the nature of a real action, to recover his right; in some cases, including chattels real as well as higher interests, there was another remedy called a monstrans de droit; and that was where office was found for the King, and by the same office the title of the party was also found. As, if a disseisor aliened in mortmain, and the special matter was found by office, namely, the disseisin and alienation, the disseisee had his monstrans de droit; but if the office omitted the title of the party, he was put to his petition of right (ƒ). But a traverse was allowed only in those cases, where, by the inquest of office, land was not in the King's hands; but the King was only entitled to a scire facias in the nature of that action, to which a subject would have been entitled under similar circumstances. In such cases, the party, being in the nature of a defendant, might appear and traverse the office, without shewing any title in himself (g). So, at common law, if the King, by false office, was possessed of the custody or interest in any land, by reason of idiocy, or the like, the party aggrieved could not have a traverse, but was put to his petition (h). The remedy by petition having been found inconvenient, the statute 34 Edw. 3, c. 14, provided, that, in certain cases, after the return of the office into Chancery, the party aggrieved might traverse the office in Chancery, and the process was directed to be sent into the King's Bench, to be tried according to law. And by statute 36 Edw. 3, c. 13, the right of traversing was extended to all kinds of offices taken before escheators; and other provisions, not material to be here stated, were afterwards made respecting traverses (i).

By the statute of the 2nd & 3rd of Edw. 6, c. 8, s. 6 (k), it is provided, that if any person shall be untruly found lunatic or idiot, every person and persons aggrieved by such See ante,

(f) 4 Rep. 54; Gilb. Exch. 172. (g) 4 Rep. 54.

(h) 4 Rep. 56 a.

(i) 8 Hen. 6, c. 16; 18 Hen. 6,

c. 6; 1 Hen. 8, c. 10.
pp. 76, 77, 78.

(k) See 2 Inst. 688.

office or inquisition shall and may have his or their traverse to the same, immediately or after, at his or their pleasure, and proceed to trial therein, and have like remedy and advantage as in other cases of traverse upon untrue inquisitions or offices found. This statute is considered as not confined to particular inquisitions only, but to apply to all inquisitions (). The Irish statute, 15 Car. 1, c. 4, s. 3, contains a similar provision as to Ireland. By stat. 6 Geo. 4, c. 53, (which extends to Ireland), it is enacted, that, where any person shall be desirous of traversing any inquisition of lunacy, a petition for that purpose shall be presented to the Lord Chancellor, or other person intrusted by the King's sign manual with the care of lunatics, within three calendar months from the return of such inquisition, who is required to hear and determine such petition; and the person so intrusted shall, in every order to be made upon any such petition, limit a time, not exceeding six calendar months from the date of such order, within which the persons desiring to traverse, and ail other proper parties, are to proceed to trial of such traverse; and the person so intrusted as aforesaid, upon every such traverse, may order the persons traversing, not being the party who has upon such inquisition been found idiot or lunatic, or of unsound mind, within three weeks after such order, to give sufficient security to one of the Masters in Chancery, and to his satisfaction, for all proper parties proceeding to the trial of such traverse within the time to be for that purpose limited.

The second section of the same act enacts, that every person who shall have right to traverse any such inquisition, who shall not present his petition within the limited time, or who shall neglect or refuse to give such security, or who shall not proceed to the trial of such traverse within the time limited, and the heirs, executors, and administrators of every such person, and all others claiming under him, shall be absolutely barred of such right of traverse, unless the person intrusted as aforesaid shall, under the special circumstances of any particular case, think fit, upon petition, to allow such traverse to be had or tried after the time limit

(1) Co. Litt. 77. b.; 12 East, 115.

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