Where land is vested in a lunatic upon trust, or by way of mortgage, or stock is standing in the name of a lunatic. as a trustee, the Lord Chancellor, or other person intrusted by the King's sign manual with the care of lunatics, may appoint before inquisition a person to convey or transfer such land or stock in the place of such lunatic (t). The practice, in such cases, upon a petition being presented for a conveyance or transfer, is, for the Lord Chancellor to refer the matter to a Master in Chancery, to inquire whether the party is a trustee, and of unsound mind; evidence of which must be laid before the Master, who makes a report, upon which the order to be obtained is founded (u). By statute 9 Geo. 4, c. 40, s. 38, upon its being made known to any justice of the peace of any county, that a poor person chargeable to any place within such county is deemed to be insane, one justice may require the overseers of the parish to bring such insane person before two justices, who, if satisfied upon view and examination of such poor person, or from other proof, that such poor person is insane, shall make inquiry into the place of last legal settlement of such poor person, and may cause such person to be sent to the lunatic asylum for the county, or to some public hospital or house licensed for the reception of insane persons. It remains to observe, that in actions, or in the trial of issues directed by the Court of Chancery, where the question turns upon the sanity of a party at the time a particular instrument was executed, and in criminal cases, it is the province of the jury, assisted by the direction of the Judge, to determine whether the party was insane or not. The capacity of parties, appearing before Judges or Commissioners for the purpose of levying fines or suffering recoveries, is determined by such Judges or Commissioners, on their inspection and examination of the parties (v). (t) 11 Geo. 4 & 1 Wm. 4, c. 60, chap. viii. s. 3. s. 5. (u) See ante, p. 35, note; post, (v) See post, chap. vi. s. 1. SECTION II. Of the Circumstances under which the Commission of Lunacy may be issued. THE object, in issuing a commission of idiocy or lunacy, is to ascertain whether the party shall be allowed to exercise acts of dominion over his property, or whether his person and estate shall be taken into the custody of the Crown, for the benefit and safety of the lunatic, and his estate. Commissions were at first confined to cases of idiocy and lunacy; but, in progress of time, this part of the prerogative was enlarged and extended to one who is non compos mentis; but here it stopt; and that at least, the Court of Chancery insisted, must be found, to entitle any one to prosecute a commission-the finding of the jury, that one is incapable of managing his affairs, is not sufficient, but they must expressly find the party to be of unsound mind (w). Lord Chancellor Hardwicke observed, that though he was desirous of maintaining the prerogative of the Crown in its just and proper limits, yet, at the same time, he must take care not to make a precedent of extending the authority of the Crown, so as to restrain the liberty of the subject, and his power over his own person and estate, further than the law would allow. And notwithstanding what had been said of the change of the law, his Lordship thought the prerogative of the Crown and the rule of law still the same, and could not be altered but by act of Parliament; for it was only the form of returns which had been changed by the Court (x). Lord Eldon remarked, that it seemed to have been a very long time, before those who had the administration of justice in this department thought themselves at liberty to is (w) Lord Donegal's case, 2 Ves. sen. 408. sue a commission, when the person was represented as not being idiot or lunatic, but of unsound mind, importing by those words the notion that the party was in some such state as was contradistinguished from idiocy and from lunacy, and yet such as made him a proper subject of a commission to inquire of idiocy or lunacy. From the moment that was established, it appears however to have been also settled, that whatever may be the degree of weakness or imbecility of the party, whatever may be the degree of incapacity of the party to manage his own affairs-if the finding of the jury is only that the party was of extreme imbecility of mind, and they would not infer from that that he is of unsound mind, they have not established a case upon which the Chancellor can make a grant constituting a committee either of the person or of the estate. All the cases decide that mere imbecility will not do, and that incapacity to manage affairs will not do, unless such imbecility and such incapacity amount to evidence that the party is of unsound mind, and the jury find him to be so (y). It seems that the Court did not, in Lord Hardwicke's time, grant a commission of lunacy in cases in which it has been since granted. And that of late years the question has not been, in many cases, whether the party is absolutely insane; but the Court has thought itself authorized (though many difficult and delicate cases with regard to the liberty of the subject occur upon that,) to issue the commission, provided it is made out, that the party is unable to act with any proper and provident management, liable to be robbed by any one, under that imbecility of mind, not strictly insanity, but as to the mischief calling for as much protection as actual insanity (≈). There are numerous instances of commissions, the objects of which were clearly persons not lunatic in the strict sense, the disorder of mind arising from causes that could not possibly admit lucid intervals, old age for instance; a glimmering (y) Per Lord Eldon, In re The Earl of Portsmouth, 22 April, 1815. 65. (z) Ridgway v. Darwin, 8 Ves. only of understanding left: a state produced by no sudden cause, but by the gradual effect of time upon the mind (e). In one case, the party was not insane; but his mind by years and attention to business was worn out. Epileptic fits may produce a mind in the same state at a much earlier period. Such cases have been thought proper subjects of the writ in the nature of a writ de lunatico inquirendo. In another case the commission stood upon the same principle. The party, when he could be kept sober, was a very sensible man, but in a constant state of intoxication he was perfectly incapable, and in a continual state of insanity (f). Lord Chancellor Erskine thought there ought to be an act of Parliament, not from any defect in the jurisdiction, but on the immense moment that the Lord Chancellor should not assume an authority which did not belong to him by the ancient jurisdiction, as that might press sorely on the liberty of the subject; but, on the other hand, agreed with Lord Eldon, that such persons, as above all others are entitled to protection, ought not to go unprotected. He put the case of a man having passed a great and illustrious life, and his faculties decaying by the course of nature, so that he might not be fit to govern either himself or his affairs; and said, it is unseemly, that he should be put upon the footing of a lunatic, and that a commission should issue in the ordinary course, which might affect the families of such persons in other times (g). And his Lordship asked, why should not a man be entitled to protection in this second state of infancy, as well as the first? And added, the whole prerogative is this: "That it falls to the King to take care of those who cannot take care of themselves” (1). It has been said, that, to support a commission in the na (e) 12 Ves. 447. Dean Swift, and Lord Mansfield, (f) 8 Ves. 66. But see Cory v. might, at the close of their lives, Cory, 1 Ves. sen. 19. have been made the subject of such a commission. See 2 Mad. Ch. 732. (i) Ex parte Cranmer, 12 Ves. 449. (g) Such is the perishable fabric even of the finest genius, that Lord Somers, the Duke of Marlborough, ture of a writ de lunatico inquirendo, it is sufficient that the party is incapable of managing his own affairs (k). If a man loses his speech by an apoplectic fit, though he shew signs of sense, it is said a commission may be granted against him (1). There may be such weakness of mind as may render a man incapable of governing himself from violence of passion, and from vice and extravagances, and yet not sufficient under the rule of law and the constitution of this country, to warrant the issuing of a commission against him (m). In a case where a person had been found a lunatic for the period of ten years past, and who subsequently, and up to a late period, had been, with the knowledge of all persons, who had either any interest in, or feeling about, the management of his affairs, doing all the acts the most sane man was intrusted to do; and with regard to his occupations, amusements, mode of life, and every circumstance belonging to the question of sanity, he had for ten years been permitted to act at his own discretion; and it was then averred, that so long as a particular topic (about a forged will) was not resorted to, for the purpose of inducing him to dissipate his fortune, his family permitted him to act without restraint. Lord Chancellor Eldon observed, "there certainly may be persons, proper objects of this commission, and understood to be so for many years, to whose case, either from true affection or mistaken tenderness, the proper process may not have been applied. There may be persons insane upon particular points, who, if those points are not touched upon, not only act discreetly in their own affairs, but even as trustees for others." His Lordship added, that he did not doubt the fairness of the motives of the parties, but said, it is of the last consequence, that the officer intrusted with this jurisdiction should be very careful, before he established the lunacy of a person ten years ago, who had during that time been permitted to act as if sane, and to deal with a (k) Gibson v. Jeyes, 6 Ves. 273. (1) Com. Dig. Idiot, (B). (m) Ex parte Barnesley, 3 Atk. 173. |