In re Wendell

The Chancellor.

The order of the 6th of September last was entered provisionally, leaving the course of proceeding to be afterwards settled. In England, the traverse of an inquisition of lunacy, or idiocy, is now considered as a matter of right under the statute of 2 and 3 E. VI., and it stops the commission at once; and the record is to be carried to the K. B., in order that the traverse may be tried. This was the opinion of Lord Loughborough, in the cases, ex parte Wragg and ex parte Ferne ; (5 Ves. 450. 832.;) and the record of such a traverse, and issue thereon, in chancery, and subsequent trial at law, is to be seen in the precedent of Rex v. Stone, in Tremaine’s Pleas of the Crown, 652.; and the proceeding is, also, stated in the case of Rex v. Roberts, (Sir. 1208.) But Lord Hardwicke did not seem to consider the statute as operating in so peremptory a manner; • and though he was very cautious of extending the prerogative of the crown, in restraining the liberty and property of persons labouring under a charge of lunacy, yet, in the case ex parte Barnsley, (3 Atk. 184.,) he rejected an application to traverse *602 a second inquisition of lunacy, as tending to delay, expense, and oppression; and he said, in another case, (ex parte R ober ts, 3 Atk. 5.,) that if the party was entitled, by law, to the traverse, he need not apply to him, though he thought the custody of the estate, or person, could not be suspended without leave. But we need not stay to discuss the construction of the statute referred to, for the provision in that of 2 E. VI. has not been re-enacted or adopted. The care and custody of idiots and lunatics, being confided to this court, the whole control of the inquisition, and the manner in which that control shall be exercised, would seem to depend entirely on the discretion of the court.

The lunatic may be brought into court, and an inquiry made, by inspection, after the inquisition is returned, as was declared in Heli's case ; (3 Atk. 634. ;) and in the case of returning sanity, this is frequently the course, aided, also, by affidavits and the certificates of physicians. So, on the execution of the commission, the commissioners and the jury have a right to inspect and examine the lunatic. (Ex parte Southcote, Amb. 109.) An issue may also be awarded to ascertain, by a verdict at law, the existence, or continuance, of the lunacy, as was done in the case ex parte Holland. (11 Ves. 10.) If a traverse be tendered and allowed, and the attorney general has filed a replication and taken issue upon it, the course, in England, is, undoubtedly, to transmit the record to the K. B., to have .the question tried at law. But as the whole jurisdiction of the subject is in this court, the object, in either mode, must be merely ad informandam conscientiam, and to arrive at a safe conclusion as to the existence of the fact. The decision of a jury will afford the most satisfactory evidence; and the only question is, whether the course shall be by an issue made up and prepared for trial, under the direction of this court, or by delivering over to the supreme court the record of the inquisition and traverse, after the public prosecutor shall have been called to join issue upon it, according to the *603 practice under the English statute. I do not perceive the necessity, or utility, of following the latter mode; and the other appears to be preferable, as being more conformable to the ordinary practice of the court, in those cases in which it becomes expedient that a jury should pass upon a matter of fact.

A trial at law is the more desirable, and the more necessary, in this case, since the petitioner’s sanity has never been questioned until now, though, according to the finding of the inquisition, he has been a lunatic for thirty years.

I shall, accordingly, direct an issue to try the allegation of lunacy, to be made and prepared by the parties concerned, to be tried at the next circuit court, in and for Albany county ; and if it shall be found necessary, I shall make a provisional order for the care of the lunatic’s estate until the lunacy be determined. This was a precaution taken in the case of Heli, just now mentioned.

Order for an issue accordingly,

■ The order was, “ That an issue be made and settled to try the question, whether E. H. W. be a lunatic, or mentally incapable of managing his own affairs; that the' said issue be tried at the next Albany circuit; that the counsel for the lunatic, in the first instance, prepare the issue, and submit it to the counsel, or agent of the party suing out the commission; and that, if they cannot agree as to the form, &c. that application be made to the court; that if the counsel for E. H. Wendell shall omit to prepare, and serve on the opposite party, such an issue, in six weeks after service of a copy of this order, then the order for an issue, shall be deemed discharged.”