Opinion
June Term, 1820.
1. It is most proper that an inquisition should distinctly find the party to be a lunatic or an idiot, but it will be sufficient if an equivalent description be used, as that he is of insane mind.
2. An inquisition finding the party "to be incapable of managing his affairs" only is defective and void.
3. No person is entitled to a traverse to an inquest of office in its proper and technical sense, under st. 2, ed. 6, so as to vacate the office, unless he be interested at the time of finding it.
4. But such inquest, when offered in evidence, is only presumptive proof against persons not parties or privies.
5. Held, therefore, in debt on bond given after office found, where an inquisition was pleaded for the defendant, that the plaintiff might in his replication traverse the truth of it, and, upon the trial, give evidence to verify the replication.
THIS was an action of debt from NASH, on an obligation executed by the defendant to the plaintiffs, and on the trial in the court below the plaintiffs had been nonsuited and appealed to this Court. The case as stated in the record, for the decision of this Court, is as follows: Short was found by inquisition before the execution of the bond "to be of insane mind and incapable of managing his affairs," whereupon the county court appointed S. Westray his guardian, who, being duly notified to appear and defend this suit, did appear accordingly and pleaded the inquisition. The plaintiffs replied, and therein, confessing that Short was found to be of insane mind, said that Short was not at the time of executing the obligation nor of taking the inquest, nor at any other time, non compos mentis, but that he had a sound mind and memory, and they traversed the truth of the finding in the said inquisition. The plaintiffs offered evidence to support their replication, which the court rejected because the bond declared on had been executed after the inquisition which, being still in force, was conclusive.
Seawell for the plaintiffs.
Mordecai for the defendant.
As the Legislature designed that guardians (13) should be appointed for idiots and lunatics alone, it is highly necessary that the inquisition, upon the authority of which the county courts exercise the power confided to them, shall distinctly state that the person is an idiot or lunatic, or by an equivalent description present the same meaning. Very mischievous consequences might ensue from a laxity in this respect, since by a jury undertaking to measure the degrees of intellect persons might be subjected to this guardianship whose free agency the law had not restrained, however wise it might be thought on general reasoning to tie up the hands of spendthrifts and drunkards, as is done in some of the States. An inquisition should therefore be regarded as a nullity which barely found that the party was of such weakness of mind as to be incapable of managing his own affairs, for this does not import a total privation of understanding, and consequently (14) does not meet the legal acceptation of lunacy. The objection taken to this inquisition is that it uses the terms "insane mind," and does not find Short to be a lunatic; but I think those words are of like signification and do substantially conform to the requisites of the act. "Unsound mind," which has the same meaning in the law with insanity, is frequently used in statutes in that sense. Lord Coke translates non compotes, "persons of nonsane memory"; and "insanity," both in law and according to the Latin word whence it is derived, imports madness.
It is argued by the appellee that none can traverse the inquisition but those who had an interest at the time it was found; and, in support of this position, the words of the statute, 2 Ed. VI, are cited, and several authorities relied on. In the technical sense of a traverse to an inquest of office, this is certainly correct; for the specific design of passing the statute was for the benefit of such persons as were sometimes deprived of their rights by untrue findings of offices. Persons holding terms for years were often put out of possession by reason of inquisitions, because such terms for years were not found; after which they had no remedy during the king's possession, either by traverse or monstrans de droit, because such interests were not freehold. 4 Reeves's Hist., 462. Those persons only are entitled to traverse the inquisition, which is done by suing out a scire facias according to the statute. Hence, a person claiming under a deed from a lunatic, after the inquisition, was a stranger, and had no right to a traverse. But the true inquiry here is, in what degree shall an inquisition be considered as evidence against a person claiming from a lunatic who is under guardianship? It is possible that a person may be found a lunatic who is really not so; and very probable that a lunatic may have lucid (15) intervals, in which no one could detect his incompetence. Hence, serious mischiefs might arise to innocent persons if they were concluded by an office. The rule of law, that no one shall be bound by a proceeding to which he was neither party nor privy, ought not to find an exception in a case where the whole proceeding may be consummated without any notoriety beyond the neighborhood in which it is transacted. The case cited from 2 Atk. is an authority to show that such an inquisition is not conclusive; for the Chancellor heard witnesses to disprove the lunacy found by it, and on the strength of their testimony, decreed that a purchase made by the supposed lunatic should stand. This shows that the sense in which he used the word "traversible" was that it might be contradicted by witnesses. In the case Ex parte Barnsley, 3 Atk., 184, the Chancellor says that inquisitions of lunacy are not at all conclusive; for they may bring actions at law, or a bill to set aside conveyances, so that it may be disputed afterwards upon the issue to be directed. In Collinson on Idiots and Lunatics it is distinctly laid down that an inquisition is only presumptive evidence of insanity, and not conclusive; so that, in an action in respect of any contract or deed, it is for a jury to determine whether, at the time of executing it, the party was non compos, though, by the inquisition, he was found to be non compos at such period. When, therefore, it is said, in Bacon, that if a lunatic contract with another after office found, it is at the peril of him who makes the contract with him, it must be understood in reference to the risk he runs in not being able to disprove the inquisition. In such case he would be concluded, since he would have no right to a traverse, under the statute, being a stranger when the office was found. But if he had contracted with a lunatic, who was not so found by office, the defense could not be set up against him, since no man can stultify himself. The reason of the thing, therefore, coincides with the authorities, and the nonsuit must be set aside and a new trial granted, and the plaintiffs (16) be allowed to offer evidence to verify the replication.
Upon the strength of the case of Faulder v. Silk, cited 2 Mad. Chan., 578, and that in 2 Atk., 412, as well as some others that might be referred to, I concur in the opinion that the inquisition is only prima facie evidence, and that evidence contradictory is admissible. If a lunatic, so found by inquisition, afterwards have lucid intervals before such inquisition be superseded, and during such interval enter into a contract, the other party may certainly prove the fact and have the benefit of it. The effect of an inquisition is to permit the committee of the lunatic to plead the lunacy, which, without such inquisition, the lunatic himself could not do.