
    In the matter of Mason, an alleged lunatic.
    
      Feb. 25, 1840.
    
      March 10.
    
      Lunatic. Inquisition
    
    Where a person is proceeded against under'the statute of lunacy, if he be not strictly a lunatic or idiot, the inquisition should find him of unsound mind. It is not enough to return’that “he is so far weakened and impaired in the faculties ofhis mind as to be mentally incapable of the government of himself, &c.”
    A commission, in the nature of a writ de lunático inquirendo, had been issued ; and the jury had found “ that the said John Mason, at the time of the taking of this inquisition, is so far weakened and impaired in the faculties ofhis mind as to be mentally incapable of the government of himself and of the management of his goods and chattels, lands and tenements, business and affairs; and that he had been so incapable for the space of four years now last past, &c.”
    On the coming in of the inquisition,
    Mr. Bidwell asked for a reference to appoint a committee.
    The court took the papers ; and on this day,
   The Vice-Chancellor said :

:I do not consider the finding of the jury to be the best in point of form or even, strictly, sufficient. The inquisition does not say that the party was of unsound mind, but “ so far weakened and impaired in the faculties of his mind as to be mentally incapable, &c.”

The revised statutes declare that “ the Chancellor shall have the care and custody of all idiots, lunatics, persons of unsound mind and persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness,” &c.

Here are different classes of persons designated ; persons of “ unsound mind” are such as may not fall within the designation of idiots or lunatics ; and the phrase “ incapable of conducting their own affairs” is made to apply to habitual drunkards only: 2 R. S. 52, § 1.

The term unsound mind, is recognized in the English Chancery ; and is the proper return where a party is not found an idiot or a lunatic: Shelford’s Law of Lunatics, 108, 109. “The proper return,” says Shelford, “ to a commission of idiocy or lunacy, where the party is not found an idiot or lunatic, but is considered by the jury as an object fit to be under the superintendence of the court of chancery is, that the party is of unsound mind so that he is not sufficient for the government of himself, his lands and tenements ; and, therefore, where the return was that the party was so far debilitated in his mind, as to be incapable of the general management of his affairs and had been in the same state of mind for six months last past, the inquisition was quashed and a new commission issued. It is settled that if the jury find merely the incapacity of the party to manage his affairs, but do not infer from that and other circumstances 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. A return finding that a party was, from great weakness of mind, incapable of governing himself and his lands, was held to be illegal and void. An inquisition may be supported finding a person of unsound mind although neither an idiot nor a lunatic. An inquisition finding a party not a lunatic, but of unsound mind, so as not to be sufficient for the government of herself, her lands, &c., was considered good. For, “ of unsound mind,” are legal and technical words—indeed, they are the proper terms of a plea—it would be improper in pleading to describe a man lunaticus instead of non sana mentis

The leading case with us is that of the old man Barker: (2 J. C. R., 232) ; and which occured before the revised statutes were passed. There, the petition showed that he had , ‘ . . . been, for four months past, so far deprived of reason and understanding as to be wholly unfit and unable to manage his affairs.” However, even there, the inquisition found the party to be of “ unsound mind.”

Perhaps, in the case now before the court, the jury considered that they had found sufficient to show the party to be of unsound mind and meant so to return ; but it would have been more satisfactory if they had done so in express terms. I admit it to be a pretty strong case. And no traverse has been taken.

Instead of sending it back, I am disposed to let the matter take the following course:—A copy of the present inquisition is to be served with notice of motion for a committee for next motion day ; the same to be served on the party alleged to be of unsound mind; and this service to be made by a person who is competent to and will properly explain the nature of the inquisition and the object of the notice.

If neither the party nor his friends take any measures to oppose, the court may be warranted in appointing a committee.  