qualified it, and enable a man or his representatives to prove that he was so lunatic or drunk as not to know what he was about when he made a promise or sealed an instrument. This special verdict hardly shows any such state of mind; but even if it did, the modern cases show that when the state of mind was unknown to the other contracting party, and no advantage was taken of the lunatic, the defence cannot prevail, especially where the contract is not merely executory, but executed in the whole or in part, and the parties cannot be restored altogether to their original position." It is evident, then, that "when a person, apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and the property, the subject-matter of the contract, has been paid for and fully enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside either by the alleged lunatic or those who represent him." If an action is brought to recover money paid under a contract upon the ground of the plaintiff's lunacy, and the issue is, whether at the time of the particular transaction the fact of the plaintiff's insanity was known to the defendant, evidence as to the plaintiff's conduct upon various occasions both before and after the date of the particular transaction, with a view to showing that the malady under which the plaintiff labored, was of such a kind as would make itself apparent to the defendant at the time of the said transaction, will be admissible. Yet a man, by bare execution of an instrument under seal, does not make it his deed, if, at the time of the execution, he was so weakminded as to be incapable of understanding it when explained to him; but a deed executed by a lunatic during a lucid interval is binding upon him, but the onus of proving that it was so executed lies upon the party claiming under the deed. Mere imbecility is not of itself sufficient to render void a contract, unless an appreciable incapacity of understanding and acting with discretion in the ordinary affairs of life re ן 1 Judgm. 2 Exch. 500. See also Dane v. Kirkwall, 8 Car. & C. 679; Brown v. Jodrell, 3 Car. & P. 30; Niell v. Morley, 9 Ves. 478; Alcock v. Alcock, 3 Man. & G. 268· Tarbuck v. Bispham, 2 Mees. & W. 2; Frost v. Bevan, 22 L. J. Chanc. 638. *Beavan v. McDonnell, 10 Exch. 184. Shelf, Lunatics, 2d edition, p. 338. sults therefrom. Such incapacity, it has been said, affords the true test of what amount of unsoundness of mind will avoid a deed at law. While mere weakness of mind will not render void the contracts of the party laboring under this disability, it will be a material circumstance in establishing an inference of unfair practice, fraud, or imposition.' In America, it was for a long time held that both executed and executory contracts, unless they were for necessaries, were void,2 but more recent decisions have brought the law into conformity with the English rule.3 28. Commission of Lunacy.-"The Lord Chancellor, to whom," says Blackstone, "by special authority from the king, the custody of idiots and lunatics is entrusted, upon petition or information, grants a commission in the nature of the writ, de idiota inquirendo,' to inquire into the party's state of mind, and if he be found non compos, he usually commits the care of his person, with a suitable allowance for his maintenance, to some friend, who is thus called his committee. However, to prevent sinister practices, the next heir is seldom permitted to be this committee of the person, because it is his interest that the party should die. But it hath been said there lies not the same objection against his next of kin provided he be not his heir, for it is his interest to preserve the lunatic's life in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy. The heir is generally made the manager or committee of the estate, it being clearly his interest, by good management, to keep it in condition, accountable, however, to the Court of Chancery, and to the non compos himself, if he recovers, or otherwise to his administrators."5 In the theory Kent Com., 10th ed., vol. ii. p. 609. See per Lord Cranworth, C., 6 H. L. Ca. 45. See also Story Eq. Jur. § 234-238; Longman v. Ledger, 2 Gif. 157; Nottidge v. Prince, 2 Gif. 246; Rhodes v. Bate, 1 L. R. Ch. 256; Seeley v. Price, 14 Mich. 541. La Rue r, Gilkyson, 4 Barr. 375; Mitchel v. Kingman, 5 Pick. 431; Rice v. Peet, 15 Johns. 503; Grant v. Thompson, 4 Conn. 203; Lang v. Whidden, 2 N. H. 435; Fitzgerald v. Reed, 9 Smedes & M. 94; Seaver v. Phelps, 11 Pick. 304. 3 Beals v. See, 10 Barr. 56; Hovey v. Hobson, 53 Me. 457; Miller v. Craig, 36 Ill. 109; Somers v. Pumphrey, 24 Ind. 231; Cram Admr. v. Cram, 33 Vt. 15. The writ de lunatico inquirendo is of the same nature as that of de idiota in quirendo. Bl. Com., b. i. ch. 8. See also 16 and 17 Vict., c. 70, and 25 and 26 Vict. c. 86. of the law, the Queen, or her Lord Chancellor and Lords Justices, on her behalf, have the care of all the lunatics in this country. Other people can, under equal laws and a fair administration of them, look after themselves and their own affairs, but those who, by reason of mental disease, are deprived of that sense and prudence which are required for such management, require that there should be some care exercised not only over their estates but over their persons; and this care is undertaken, in the first instance, by the Queen, and then, by delegation and appointment, by some friend or relative of the person who labors under the incapacitating mental infirmity. In case a commission is issued, and in case a personal care of the lunatic and his estates is upon that inquiry found necessary, and a committee is appointed, the insane person is deprived of his civil rights as to the exercise of liberty and the disposal and management of his own affairs. It follows, then, that it is of much importance to ascertain upon what grounds the Court of Chancery will deprive an individual of these franchises and will appoint a committee. We shall see that the law is clear and distinct upon this point, but we must, in the first instance, say a few words as to the procedure in such cases. 3 29. The Procedure of a Commission.'-The procedure of an inquisition commences with a petition for inquiry, and if the lunatic is within the jurisdiction,2 notice of the presentation of the petition must be given to him. The inquiry which follows may be held before a jury or it may not. Formerly, it always took place before a Master, but by a more recent statute, it is enacted that the Lord Chancellor may direct the issue as to the alleged insanity to be tried in one of the Superior Courts of common law at Westminster. The alleged lunatic is examined, and the facts which bear upon the question of his soundness or unsoundness of mind are investigated. Where a jury has not been demanded or As to the similar process of appointment of Tutors at Law in Scotland, see Fraser's Family Relations," vol. ii., 317 et seq.; Craig, 1, 12, 29; Ersk. 1, 7, 50; Bell's Princ. 2111. See also McAdam & Walker v. McAdam, 1 Dow. 177; Jardine v. Currie, 8th July, 1825; Bryce v. Graham, 25th Jan.,, 1828. allowed, and the evidence has been led, and where the Master has personally examined the alleged lunatic, he proceeds to certify his finding, and such certificate is deemed to be an inquisition, and has the effect of an inquisition taken upon the oath of a jury; the effect of such inquisition being that the individual found to be of unsound mind is deprived of the management of his property and affairs, and committees of his person and estate are appointed. An inquisition finding a man a lunatic may be traversed upon petition; and even when a traverse is inadmissible, as it is where the inquisition has been made on the trial of an issue in a common law court, the Lord Chancellor may, upon petition, order a new trial, or a new inquiry, and where the Lord Chancellor is convinced of the expediency, he may, with the consent of the lunatic and of the other persons concerned, order the inquisition to be superseded." One other particular is to be noted in relation to the process by means of which the rights of one man are transferred into the keeping of another, and that is, that the inquiry, however made, is confined to the question of lunacy of the individual at the time of the inquiry, and no evidence as to what the alleged lunatic said or did, as to his demeanor or state of mind at any time more than two years before the time of the inquiry is to be given, unless the Judge or Master otherwise directs.' But it is to be borne in mind that the real object of inquiry in all such cases is the general incompetency of the individual to manage his affairs, and not a question as to his capacity to do any particular act. The affidavit which is filed in proof of 16 and 17 Vict., c. 70, § 42, 44. See Fry's Lunacy Acts, London, 1864, p. 3; Sabbin & Browne's Handbook of Law of Lunacy, London, 1872, p. 58. * See 2 and 3 Edw. VI., c. 8, § 6. 3 This practice in most of the United States is almost exactly similar to that of the Court of Chancery in England. See Black's Est. 6, Harris, 434; Hulings v. Laird, 9 Harris, 268. In America, however, they are in the habit of issuing an inquisition on the case of drunkenness as well as on that of unsound mind. The drunkenness which will warrant an inquisition must be habitual (a fixed habit of drunkenness.} See Hitchman v. Richie, Brightly Rep. 143; Com. v. Kirkbride, 2 Brews. 400; Sill v. McNight, 7 W. & Ser. 245; State v. Pratt, 34 Vt. 323; Ludwick r. Com., 6 Harris, 173. Aud see Lackey v. Lackey, 2 B. Monr. 478; Matter of Russel, 1 Barb. C. R. 38; Matter of Lasher, 2 Barb. C. R. 97; Matter of Mason, 1 Barb. C. R. 436; John Beaumont's Case, 1 Wharton's Rep. 52. See Bryce v. Graham, 25 Jan. 1828; 4 Irvine, 506. and Ederline's Tutor, and 2 Fraser's Family Relations, 330. 25 and 26 Vict., c. 86, § 3. lunacy in such proceeding may be founded upon facts ascertained aud observations made at a number of interviews with the alleged lunatic, and differs in this respect from the certificate of a medical man which is given with a view to the incarceration of an insane person in an asylum, hospital, or licensed house, in which the general declaration as to the mental condition of the individual must be supported by facts observed upon the day when the certificate is signed; and all information quoted in such certificate must also have been obtained upon the same occasion. 230. Incapacity which will justify an Inquisition.[Commissions of lunacy were originally granted for the purpose of inquiring whether the individual was either an idiot ex nativitate, or a lunatic, in the meaning of the term attached to it by Lord Coke. Ultimately, however, the phrase, "unsound mind," was used in the writ with the view of embracing all those who were considered proper subjects of the commission, and who did not fall under either of the terms used in the writ which was originally issued. Lord Hardwicke and Lord Eldon made attempts to give this phrase a definite connotation; and Mr. Amos, at one time Professor of Medical Jurisprudence in the London University, said that "the term unsoundness of mind, in the legal sense, seems to involve the idea of a morbid condition of the intellect, or loss of reason, coupled with an incompetency of the person to manage his own affairs;" but it has been decided "that if the jury find merely the incapacity of the party to manage his affairs, and will not infer from that and other circnmstances 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." It has been argued that the necessity which the law casts upon the jury of inferring the "unsoundness of mind," especially when the phrase is not itself clearly understood, or at least defined by some of our ablest lawyers, is inexpedient, and that in many cases the finding of the jury that the individual was incapable of man 19 Vesey, 286. In Scotland, curators have been appointed to deaf and dumb persons, though they are of sound judgment, where it appeared that they were unable to exert that judgment in the management of business. |