
    Armstrong and Arrington v. Short.
    From Nash.
    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 ho is of insane mind:
    
    An inquisition, finding- the party “ to be incapable of managing his af- “ fairs” only, is defective and void.
    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.
    But such inquest, when offered in evidence, is only presumptive proof against persons not parties or privies.
    
      Held, therefore, in debt on bond, given after office,ftiin’d, 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 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 ip 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 nodded to appeal" 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 talcing 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.
    
      The case was argued by Seawell for the Plaintiffs, and ^ ^on^ecai for the Defendant.
    
      Seawell,
    
    insisted that the inquisition was, in itself, defective and void, because it did not, in express terms, find Short to be an idiot or a lunatic : But at all events, the Plaintiffs ought to be allowed to traverse the truth of the finding. It is against the. first principles of justice to conclude a person by ex parte proceedings, — and adjudged cases shew, that it is a matter of right to traverse an office found. 2 Atk. 412 — 5 Ves. jun. 450.
    
      Mordecai, for the Defendant.
    The Plaintiffs have acquired their interest since the office found, and, therefore, cannot have a traverse. The acts of a person labouring under mental derangement, cannot prejudice him ; because he has not the command of his will, which alone gives efficacy to, and stamps a character upon them. Wherever this want of will can be established, the, act is void. But because of the difficulty of proof of the state of a man’s mind at particular moments, and to avoid the fraud that, would be committed upon such unfortunate persons, should such proof be received, tiie law has appointed this method by inquisition ; and, as long as the finding continues, all persons are concluded from acquiring any interest which' the Law will protect. If a lunatic beymed on a bond, while the office is in force, a supersedeas may be sent to the justices. The right" of traverse is given by stat. 2 Ed. 6, which provides “ if any shall be untruly found lunatic or “ idiot, that every person grieved by such office or inqnisi-ee lion, shall and may have his traverse to (be. same, imme- '•* diately or after, at his pleasure.” Now the person having the right to traverse, must be such a one as ¡night., at Ms pleasure, do so immediately or after. He must be interested. otherwise lie could not he grieved; and he must be interested at the Lime, for otherwise he could not use his pleasure whether to traverse then or after. But persons, vhio had an interest which was affected by the relation °f a finding to a time past, have the right of traverse secured to them, and they may exercise it when they please.
    
    But even if the Plaintiffs be entitled to a traverse, they must go to the Court, into which the inquisition- was returned, and there fender it. An issue could then be taken and tried ¿ and if it be found, that the person had been improperly found to be non compos, the first verdict would lose its efficacy'. But, by the present mode of proceeding, the same man may be found to be sane and insane, according to the capacity of the Jury who try the matter, or the capacity of those, interested, for procuring testimony'. A Jury of Nash will say he is insane, while one in Halifax will find him to be sane: and all this takes place, too,, while the record of a Court of competent authority shews, that he has been duly pronounced insane. -The course in England is, to apply to the Court of Chancery, where the inquisition is returned, and tender a traverse; then an issue is made up and sent to King’s Bench.
    
    
      
       Act of Assembly, 1784, c. 15, s. 3.
    
    
      
       4 Co. 126.
    
    
      
       1 Ch. Ca. 113.
    
    
      
      
         Ex parte Wragg, 5 Ves. 833.
    
   Tavlor, Chief-Justice-.'

As the Legislature, designed that guardians 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, pro sent the same meaning. Yery 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 ag.-ncy the law had not restrained, however wise, it might he thought on general reasoning to tie up the hands of spendthrifts and drunkards, as is done in some of the States.

An inquisition should, theretosr, 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 aífairs; ^or c'oe‘s not import a total privation of understanding, and, consequently, 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 iS of nonsano memory f’ 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. 6, 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. 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 clairning under a deed from a lunatic after the inquisition, was a stranger, and had no right to a traverse. But the true enquiry 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 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 ho was neither party nor privy, ought not to find an exception in a case v;here the whole proceeding may be consummated without any notoriety beyond the neighborhood in. which it is transacted. The case cited from 2 Atkyns, is an authority to shew that such an inquisition is not conclusive,- for the Chancellor heard witnesses to disprove .the. lunacy found hy it, and, on the strength of their testimony, decreed that a purchase made by the supposed lunatic’ should stand. This shews that the sense in which he .used the word tra-versable was, that it might be contradicted by witnesses. In the case ex parte Barnsley, the Chancellor says, that inquisitions of lunacy are not at all/conclusive; for they may bring actions at law, or a bill vio aéji. aside conveyances, so that it may be disputed afterwards upon the issue to be directed. In Collinson on idiots an'dq lunatics, it is distinctly laid clown that an inquisition is only- presumptive evidence of insanityq and not conclusive; so that in an action in respect of any contract or deed, it is for a Jury to determine whether, atibe 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 strange)- when the office was found. Hut if he had contracted with a lunatic, who was not so found by office, the defence 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 he set aside and anew trial granted, and tite Plaintiffs be al-*()',ve(^ °frhr evidence to verify the replication.

Haul, Judge.

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, 1 concur in the opinion that the inquisition is only primee 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.

Henderson, Jiqlge, having been concerned in this cause at the Bar, did not sit; and Murphey, Judge, sat for him, and concurred. 
      
      
        4 Reeves’s Hist. 462.
     
      
       3 Atk. 184.
     
      
       1 Fonb. 65, n. x. 3 Bro. C. C. 441.
     