sheriff or escheator of the county where his residence was, to try by a jury, and personal examination of the party, whether that suggestion was true or not (f). The writs were returnable into the Court of Chancery; the forms of them are various. The first form of the writ, to the escheator, suggesting that the party "Fatuus et idiota existit: ita quod regimini sui ipsius, terrarum, tenementorum, bonorum, et catallorum suorum non sufficit," directed the inquiry," Si A. fatuus et idiota sit, sicut prædictum est, necne; et si sit, tunc utrum a nativitate suá, aut ab alio tempore; et si ab alio tempore, tunc a quo tempore; qualiter et quomodo; et si lucidis gaudeat intervallis; **** et quis propinquior hæres ejus sit, et cujus ætatis." Another form of the writ to the escheator, reciting, "Quia A. idiota, et adeo impotens ac mentis suæ non compos existit, quod regimini sui ipsius, terrarum, vel aliorum bonorum, non sufficit," directed an inquiry-“ Si idiota sit, et mentis suæ non compos, sicut prædictum est, necne.” By another form, the inquiry is whether "Idiota et fatuus a nativitate sud, an alio tempore." According to another form, the sheriff is ordered to inquire, whether, &c., “A nativitatis suæ tempore semper hactenus purus idiota extiterit **** an per infortunium vel alio modo in hujusmodi infirmitatem postea inciderit; **** et si per infortunium vel alio modo, tunc per quod infortunium, et qualiter, et quomodo, et cujus ætatis fuerit." By another form the sheriff is to inquire whether primævá ætate suâ fatuus extiterit.” 66 α In the writ intitled "De idiotá coram consilio," the description is, "Idiota est et non sanæ mentis existit”(g). It is to be observed, that the language of the writ, supposing a commencement and cause of the calamity unconnected with birth, does not correspond with the description of an idiot generally received, and adopted by Lord Coke (h). (f) F. N. B. 581, ed. 1652; 2 Vol. p. 232, ed. 1794. (g) See Reg. Brev. 266. (h) See 12 Ves. 450, 2nd ed. n. 11. Although a man was found idiot before the escheator or the sheriff, taken by their examination, and that had been returned into Chancery, yet he who was so found idiot might, in person or by his friends, come into the Court of Chancery, or before the Chancellor and the King's council (i), and shew the matter, and pray that he might be examined before them, whether he were idiot or not; or he might sue forth a writ out of Chancery to certain persons, to bring him who was so found idiot before the King and his council at Westminster, to be there examined; and if he was brought thither and examined, and found to be no idiot, then the inquisition found before the escheator or sheriff, and also the examination which the sheriff had made and returned thereupon, and the office, became void, without any other traverse (j). The same rule applied to an inquisition of lunacy, though the consequences are different (k). Lord Chancellor Hardwicke said, "he could not find one writ directed to the escheator to inquire of lunacy. The escheator was an officer for the Crown revenue, and in case of lunacy, where no profits go to the Crown, the writ was never directed to the escheator" (l). This does not however appear to be correct; for, under the first form of the writ to the escheator inserted above, if the party had been found fatuus et idiota from a certain period of time, in consequence of an ascertained cause, and in the enjoyment of lucid intervals, the Crown could have derived no profits under the statute de prærogativá regis (m). When persons non compotes mentis became distinguished into the two classes of idiots and lunatics, distinct commissions in the nature of the old writs were framed for each of them, one de idiotá inquirendo, and the other de lunatico inquirendo. (i) It is said that the words " COram rege in concilio," have been considered to mean the Court of Chancery. Ex parte Southcot, Ambl. 112. (j) See F. N. B. p. 583, ed. 1652; 2 Vol. p. 233, ed. 1794; Staundf. de Pr. Reg. 36. G (k) In re Heli, 3 Atk. 635. (1) Ex parte Southcot, Ambl. 111. (m) 17 Edw. 2, c. 10. See ante, pp. 10, 11; West's Symb. Part 1, s. 370; Vin. Abr. tit. Lunatic, (E. 2); 2 Ves. sen. 405. Rights accruing to the Crown by forfeiture and other means were inquirable either by writ or by commission, the latter is more large and general, and has in practice been adopted in preference to the former (n). Commissions in the nature of the ancient writs are made by letters patent under the Great Seal, directed to five persons as Commissioners, who, any three or more of them, are to inquire, upon the oaths of good and lawful men of the county, as well within liberties as without, by whom the truth of the matter may be better known, whether the party against whom the commission has issued be an idiot and without understanding from his nativity, or (according to the commission) a lunatic, or in the enjoyment of lucid intervals, so that he is not sufficient for the government of himself, his manors, messuages, lands, tenements, goods, and chattels; and if so, from what time, after what manner, and how; and whether, whilst in the same state of mind, he hath alienated any lands or tenements; and if so, what lands and tenements, to what person or persons, where, when, after what manner, and how; and what lands and tenements, goods, and chattels then remain to him; and of what person or persons, as well the lands and tenements so alienated as the lands and tenements by him retained, are held; and by what service, after what manner, and how, and how much they are worth by the year in all issues, and who is his nearer heir, and of what age (o). The Commissioners, three or more of them, are further commanded, at certain days and places, which they shall appoint for the purpose, diligently to make inquisition in the premises, and to send the same without delay, distinctly and plainly made, under their seals, and the seals of those persons by whom it shall be made, into the Court of Chancery, together with the letters patent. And the sheriff is directed at certain days and places, which the (n) Ex parte Southcot, Ambl. as another form of the writ, by very 111; 2 Ves. sen. 405. clear expression, applies that inquiry to the person who is the subject of the commission. 12 Ves. 451, 2nd ed., n. (11). (0) These words, and of what age, are said in practice to be referred to the age of the heir. That doubtful construction is the more questionable, Commissioners shall make known to him, to cause so many and such good and lawful men of his bailiwick, as well within liberties as without, as the Commissioners shall direct, to come before the Commissioners, any three or more of them, by whom the truth of the matters in the premises may be better known and inquired into (n). The commission of lunacy, like all other commissions which pass under the Great Seal, issues from the common law side of the Court of Chancery (o). In case of the death or incapacity of the Commissioners before the commission has been executed, it will be superseded, and a new one directed to issue (p). The Lord Chancellor, on issuing the commission, can, if he thinks proper, order the sheriff to return a special jury of gentlemen of the neighbourhood of the residence of the supposed lunatic (q). It is understood, that, without an or (n) See the form of the commis- sion in the nature of a writ de lunasion in the Appendix. tico inquirendo, to be directed or addressed to any one or more person or persons, who shall make inquisition thereon, and return the same into the High Court of Chancery, and who for that purpose shall have the same power to issue precepts to the sheriff to summon a jury, and to compel the attendance of witnesses, and the production or attendance of the alleged lunatic, and all other the powers hitherto possessed by the three or more Commissioners in such commissions named; and such inquisition shall be good and valid to all intents and purposes, as if the said commission in the nature of a writ de lunatico inquirendo had been directed or addressed to, and the said inquisition returned by, three or more Commissioners as heretofore. A bill is now in progress through Parliament (which will be found in the Appendix in case it be passed during the present session), whereby, after reciting that great expense and inconvenience had been experienced from the practice of directing commissions in the nature of writs de lunatico inquirendo, to three or more persons, therein named as Commissioners; and that doubts had arisen whether such commissions could be directed to one such Commissioner only; it is declared that the Lord Chancellor or the Lord Keeper, or Commissioners of the Great Seal of Great Britain, or other the person or persons for the time being intrusted by the King's sign manual with the care and commitment of the custody of the persons and estates of persons found idiot, lunatic, or of unsound mind, (in case he or they shall deem it advisable), to cause any commis (0) 4 Inst. 80, 81. (p) In re Parker, 24 Oct. 1828. der for the purpose, the jurors are usually selected from the class of persons who serve on special juries. 6 The direction in a commission of lunacy to inquire who is next heir,' seems to be given, in order that the Crown may know to whom the property ought to be delivered when the necessity of its superintending care has ceased. The inquisition indeed is not conclusive; the person so found to have been heir may not be the heir; the finding of the jury may be wrong; but prima facie he is to be taken as heir (r). It has not been the practice in England, for thirty years past, to make particular inquiries before the commissioners and jury respecting the heir-at-law, or the property of the lunatic; but those facts, as well as who are the next of kin of the lunatic, are subsequently ascertained and reported by the Master to whom the matter of the lunacy is referred after the inquisition has been returned. The jury generally return their ignorance of those facts as well as of the lands which the lunatic has aliened. It will be proper in this place to point out some other methods provided by the law of England for determining the insanity of a party. In case a person, who, if of sound mind, would be entitled to take advantage of the insolvent act, shall become of unsound mind when in prison; the gaoler of the prison is directed to require one or more justice or justices of the peace for the place wherein the prisoner shall be, to attend at the prison, and inquire into the state of mind of such prisoner; and thereupon, and in case any such justices shall receive information by other means, that any prisoner is of unsound mind, such justice or justices shall go to the prison, and by his or their own view, and by examination on oath of such persons as he or they shall think fit to examine, and shall inquire into the state of mind of such prisoner; and if it shall appear upon such inquiry, that such prisoner is of unsound mind, such justices shall make a record of the fact, and certify the same to the Insolvent Debtors' Court; and the creditors are bound by the certificate (s). (r) Inre Fitzgerald, 2 Sch. & Lef. Cooke's Practice of the Insolvent 440. Debtors' Court, p. 145. (s) 7 Gco. 4, c. 57, s. 73. See |