If a person be improperly confined under pretence that he is a lunatic, the remedy is by habeas corpus, directing the keeper to bring the party into court; but if it appears on affidavit of some competent person that the party is actually lunatic, and in such a state of mind that he is not fit to be brought into court[[498]], and more especially if a commission of lunacy is about to be issued, the court will enlarge the time for the return of the writ according to the nature of the case, (Rex v. Clarke, 3 Burr R. 1363.) And if liberty to have access and inspection of such lunatic be applied for, it must be on behalf of some person who has pretension to demand it, or the Court will reject the request (ibid.)[[499]].
But though no commission has issued, the Court of Chancery will interpose, as where the Lord Chancellor stopped a lunatic from being carried out of the jurisdiction of the Court (into Scotland), Lady Marr’s case, cited in Lady Annadale’s case. Amb. 82. The Court also retains some jurisdiction after the death of the lunatic, Ex parte Grimstone, Ambler. 706; Ex parte Armstrong, 3 Bro. Ch. Ca. 238; Fitz-gerald’s Case, 2 Sch. and Lef. 439.[[500]].
Formerly the inquiry respecting idiots and lunatics was made by Writs to the Escheator or Sheriff as an officer to enquire of the revenues of the Crown, (F. N. B. p. 531: 1 Collinson, 117: Ex parte Southcote, 2 Ves. 401:) but these being very strict as to the wording, and as no person could be found idiot or lunatic under them, except those who came under the strict definition of either denomination, the Writs have been superseded by Commissions[[501]] of a more comprehensive character under the great seal[[502]]. These Commissions are directed to five Commissioners,[[503]] who, or any three or more of them, are openly to enquire on the oaths of twelve or more good and lawful men, whether the person be or not an idiot, lunatic, or non compos: 1 Collinson, 120. And they have power to issue their warrant to any person to produce the non compos[[504]], ib. 143; which, if not obeyed, will be enforced by the Lord Chancellor, and costs decreed, if required against the persons having the custody of the party. Ex parte Southcote, 2 Ves. 401. 405: see also Lord Wenman’s case[[505]] ubi supra. The Commissioners have also power to summon witnesses as incident to their office. Ex parte Lund, 6 Ves. 784.[[506]]
Where there is any misbehaviour in the execution of a Commission, whether by the Commissioners, or Jury, (Ex parte Roberts, 3 Atk. 6.) the Chancellor will quash it, and direct a new Commission.
If there has been a finding against the king, there may be a melius inquirendum, but this is for the Crown only (3 Atk. 6.), which cannot traverse as the subject can.
The remedy of the subject is by traversing the inquisition, or by bringing the question to an issue at law. The right of traverse has been disputed; Sir John Cutt’s case, Ley. 26. 3 Atk. 6.; and it was held that permission to traverse was a favour granted by the Court, and not a right; ibid. but it is now established to be de jure under the 2 Ed. 6. c. 8. § 6. Ex parte Wragg, and ex parte Ferne, 5 Ves. 450. 832. But the petition of a stranger for this purpose will be dismissed with costs: Ex parte Ward. 6 Ves. 579.
The manner of pleading a traverse is very short, (5 Ves. 452). An idiot must traverse in person. Smithson’s case was on motion to be permitted to traverse by attorney, which was opposed; it was agreed that a traverse was given by 2 Ed. 6, but it must be in propriâ personâ: precedents were shown, but there was no case where an idiot had traversed by attorney, though many where a lunatic had: 3 Atk. 7. Vide Stone’s case in Tremaine’s Pleas of the Crown, 653, a precedent of a traverse, and for the doctrine of traversing an inquisition, vide 4 Co. 54. b; (the case of the Commonalty of the Sadlers), and 8 Co. 168. Xaris Storeghtors’ case. Sir T. Jones, 198. Show. 199. Skinner, 45. Moseley, 71. 1 Collinson, 171. But though a lunatic may by permission of the Lord Chancellor traverse by attorney, the better rule is that he attend in person. Amb. 112.
The appeal in lunacy is to the King in Council, and not to the House of Lords. Ex parte Pitt, 3 P. Wms. 108: Rochfort and Ely, 6. Bro. Par. Ca. 329; Sheldon v. Aland, 3 P. Wms. 107.
If the party be found lunatic the next consideration is as to the disposal of his person and estate. “To prevent sinister practices, the next heir is seldom permitted to be this committee of the person; because it is his interest that the party should die. But it hath been said there lies not the same objection against his next of kin, provided he be not his heir; for it is his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy. The heir is generally made the manager or committee of the estate, it being clearly his interest by good management to keep it in condition; accountable however to the Court of Chancery, and to the Non compos himself if he recovers; or otherwise to his administrators, 1 Bl. Comm. 305. But this rule is not in all cases adhered to, Ex parte Cockayne, 7 Ves. 591: Neal’s case, 2 P. Wms. 544, and ex parte Ludlow, ibid. 635.” The Court will not give the custody of a lunatic to one who may make a gain of it, Lady Cope’s case, Cha. Ca. 239, or allow the committee any thing for his trouble, whether as to the person (In re Annesley. Amb. 78) or as to the estate, 10 Ves. 103.
A stranger may have the custody of a lunatic, Ch. Ca. 239. And where no one could be procured to act as committee of a lunatic, a receiver was appointed with a salary, but nevertheless to be considered and give security as a committee. Ex parte Warren, 10 Ves. 622.