
    In the matter of the alleged lunacy of William B. Hill.
    In a, return to a writ de lunático inquirendo, that the alleged lunatic “ is a lunatic and of unsound mind, and does enjoy lucid intervals, so that he is not capable of the government of himself, his lands, tenements, goods and- chattels,” the phrase italicized, whether read parenthetically or not, is not objectionable either in form or fact.
    
      Mr. A. G. McLean, for petitioner.
   The Chancellor.

The return is, that William B. Hill, the subject of the inquiry, “ is a lunatic and of unsound mind, and does enjoy lucid intervals, so that he is not capable of the government of himself, his lands, tenements, goods and chattels;” and the question is, whether this return should be confirmed as a return that the alleged lunatic is incompetent to govern himself or his affairs. The objection is, that it appears that he has lucid intervals, from which it must be assumed that he is at times capable of managing himself and his property. It would be enough to say, in answer to this objection, that, although the return states that he enjoys lucid intervals, it expressly declares that he is not capable of governing himself or his estate, notwithstanding the fact that he has lucid intervals. The words “ and does enjoy lucid intervals ” may be read in parentheses. In fact the lunatic has no lucid intervals. He has only occasional momentary returns of the power of recognition of a few most familiar objects, with an immediate relapse into his former condition of fatuity. It is not necessary that the return should state whether the lunatic has lucid intervals or not. Ex parte Ferne, 5 Ves. 450; Shelford on Lunacy 111.

The practice of inserting in the return a finding on the subject of lucid intervals, is derived from the ancient practice under the writ de lunático inquirendo, which was applicable only to those who were alleged to be lunatics according to the signification of the term as it was then understood. Anciently, only those insane persons who enjoyed lucid intervals were regarded as lunatics; the mental disorder being thought to be dependent on the moon, and, therefore intermittent. 1 Bla. Com. 304; Collinson on Lunatics 37. Commissions in the nature of the writ de lunático inquirendo were, therefore, devised to meet the case of persons of unsound mind who had no lucid intervals and who consequently were not considered lunatics. To such the writ de lunático inquirendo was deemed not to be applicable.

“I have reason to believe,” said Lord Eldon, “the court did not, in Lord Ilardwicke’s time, grant commissions of lunacy in cases in which it has since been granted. Of late, the question has not been, whether the party is absolutely insane; but the court has thought itself authorized (though certainly 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 tbe mischief, calling for as much protection as actual insanity.” Ridgeway v. Darwin, 8 Ves. 65, 66.

With modern views, under modern practice, there appears to be no reason, except, perhaps, the propriety of describing the malady by stating its character, for finding whether the lunatic has or has not lucid intervals. Those who are of unsound mind, but with intervals of sanity, require the protection of the courts in regard to their property quite as much as those whose condition is that of continued, unabating insanity; for, obviously, the contracts of the latter would be far more easily avoided than those of the former. And if the court takes charge of those who, though insane, have lucid intervals, of course it will do so in the case of those who have no such intervals. Lord Eldon quashed a return, “A lunatic enjoying lucid intervals, and, during such, capable of managing his affairs,” and ordered a new commission, although it was urged, on behalf of the lunatic, in opposition, that it appeared by the return that he was capable of managing his affairs. Ex parte Atkinson, Jacob 333.

The inquisition will be confirmed.  