
    In the Supreme Court of Pennsylvania. WESTERN DISTRICT.
    McGUINESS v. THE COMMONWEALTH.
    1. It is sufficient for a jury to find the party to be an habitual drunkard, the legal consequences flow from that fact.
    2. The inquisition stands until overthrown by the evidence of the traverser.
    Error to the court of common pleas of Allegheny County.
   Opinion delivered January 6, 1874, by

Agnew, J.

Issues of fact, whether by way of traverse or a feigned issue, when -tried before a jury according to the course of the common law, have always been deemed the subjects of a writ of error. The trial is conducted, and bills of exception taken to the evidence or the charge as in other trials before a jury. Hence when the legislature provided a writ of error in the case of feigned issues from the orphans’ court, it declared that the writ should lie in the same manner as in cases where feigned issues are directed by a court of common pleas: act roth April, 1848, x Bright. Dig. 603, pi. 5. Issues of fact in cases of distribution were also made subject to a writ of error : 1 Bright Dig, 656, pi. 107. To put an, end to all doubt on the subject of feigned issues, the act of 12th February, 1869, P. L. p. 3, extended the writ of error to all cases of feigned issue where exceptions have been or shall be taken to the rulings or charge of the court: 1 Bright. Dig. 604, pi. 9. The traverse of the inquisition of lunacy or habitual drunkenness, is by the act of 13th June, 1836, § 12, assimilated to cases of traverse upon untrue inquisitions of office found : 2 Bright. Dig. 982, pi. 15. Such traverses are common law proceedings, and among them is enumerated the inquisition of idiocy a nativitate: 3 Black. Com. 258. 'The traverse of the lunatic or habitual drunkard under the act of 1836, being of like nature the writ of error lies to the rulings or charge of the court; and the motion to quash is therefore denied.

The fourth and fifteenth assignments of error raise the question as to the mode of proceeding upon the trial of the traverse. The commonwealth gave in evidence the inquisition and finding of the jury, that John McGuiness, the traverser, was an habitual drunkard, which were objected to and received under exception, and then rested. The traverser gave evidence to disprove the finding of habitual drunkenness. The commonwealth then offered to rebut by evidence in support of the finding, to which it was objected that such evidence was in chief, and ought to have been given before the traverser began his evidence. But the mode of proceeding was clearly right. The finding of the inquisition stands until it is set aside or disproved, and it may be unnecessary for the commonwealth to give any evidence. This’"effect of the finding is prima facie, according to many decisions, throwing the burthen of disproof on the lunatic or habitual drunkard: Hutchinson v. Sandt, 4 Rawle, 234; Willis v. Willis, 2 Jones, 159; Gangwere’s Estate, 2 Harris, 417; Klohs v. Klohs, 11 P. F. Smith, 245. In Ludwig v. Commonwealth, 6 Harris, 175, Justice Rogers said of the finding by the inquest, “his incapacity, in-that event, is a conclusion of law, it is not necessary to say it is fresumftio juris de it™, but, at leastit throws the burthen of capacity on the traverser.”

The case of Rogers v. Walker, 6 Barr, 371, really decides the point before us, for there it was contended that after the defendant’s proofs were given in rebuttal, the finding was to be laid out of the case, but Gibson, C. J. , denied this, saying that “like a legal presumption an inquisition continues to operate till overpowered, and standing as full proof till then, it necessarily remains before the jury, till the question of sanity has been derided by them. It consequently stands as a particular in the proofs. See also the remarks of Thompson, C. J., in Leeky v. Conyngham, 6 P. F. Smith, 373. The effect of the finding, even when a traverse is put in is to place the care and custody of the estate of the lunatic or habitual drunkard m the hands of the court: Section 13, Act 13th June, 1836, 2 Bright. Dig. 982, pi. 16. Indeed even before the return of the inquisition, but after a finding of lunacy, it has been held that a receiver may be appointed: Kenton’s Case, 5 Binney, 613. It follows, therefore, that the Commonwealth might, in the first instance, rely on the finding, and afterwards in answer to the evidence of the traverser, have the right to go into full proof of his habitual drunkenness. According to Sir Wm. Blackstone, the traverser, in the case of an inquisition of office found, must be considered the plaintiff, and must, therefore, make out his own title, as well as impeach that of the crown : 3 Com. 260. ^

It is unnecessary to say anything as to other assignments of error, except that under the Act 13th June, 1836 it is sufficient to find the person an habitual drunkard. The legal consequences flow from that fact, and not from any supposed or actual capacity of the habitual drunkard to manage his business well. When the habit of drunkenness is found, the law itself establishes tb.e incapacity. It is, therefore, not the province of the jury, upon a traverse of the inquisition, to determine the extent of the traverser’s ability to transact his business. They decide, only, the habit of drunkenness. Ludwick v. Commonwealth, 6 Harris 173; Sill v. McKnight, 7 W. & S. 244.

Judgment affirmed.  