#### Arrington v. Short.

1 From Nash.

An inquisition of lunacy, which appeared to have been taken by the Coroner and twelve freeholders, and returned to the County Court, and by it confirmed, and from which it did not appear that the lunatic was present, was offered in evidence to support the plea of non compos mentis; held, that having’ been received by.the County Court, as an inquest, and a guardian having been appointed under it, it was too late to question it as an inquest.

Debt, on Defendant’s bond,

Defendant appeared by his guardian and pleaded the general issue, payment, set off, that Defendant was an idiot, and non compos mentis, at the time of executing the bond,' and so found, by the inquest of a Jury, that the bond was obtained by fraud, and the consideration thereof fraudulent; to which pleas there was a replication and issue.

The signing of the bond was proved, and the sole question was, as to Defendant’s capacity to contract; on which point much contradictory evidence was offered.

The inquisition of lunacy, which appeared to have been taken by the Coroner and twelve freeholders, and returned to the County Court, and by it confirmed, was prior, in point of time, to the execution of the bond, and was offered in evidence. It was objected to for two reasons : 1st, it did not appear to have been taken by proper authority j and 2d, it did not appear that the pretended lunatic was not present before the Jury.

The proceedings on the inquiry, as to Defendant’s ■sanity, appeared to have commenced by an order of Nash County Court, directing the Coroner to summon a Jury to enquire. The Court permitted the proceedings to be read, subject to such remarks as it might ináke thereon, in instructing the Jury, and after explaining in his charge what the law intended by the reason *72and understanding sufficient to contract; the presiding Judge remarked on the proceedings, that if regular, they would be but prima facie evidence of Defendant’s incapacity, but that here they were irregularly taken and void as an inquisition, though the Jury might give to them the same weight, which they would to the opinions of any twelve respectable men. — Verdict for the Plaintiff; new trial refused; judgment and appeal.

Mordccai, for Appellant.

By the pleadings, no traverse is taken to the inquisition; it is confessed and avoided.

The Judge should, therefore, have said to (he Jury, that the incapacity of Short, on the day of the inquisition, was admitted, and that the burden lay on the Plaintiff to show capacity when the bond was executed.

The County Courts have jurisdiction of- matters, relating to inquisitions of lunacy. These proceedings cannot be set aside thus; they must stand. — Meadows v. Duchess of Kingston, (Jliribler, 761.) — Nod v. Wells, (1 Levinz, 235.) — King r. Gardel, (cited McNally, 434 — 1 Strange, 481, 703' — 2 Strange, 733 — McNally, 454 — 6 Mass. R. 227.)

It does not appeal* that any evidence was offered to impeach the proceedings in the County Court; the allegation of irregularity is, therefore, merely gratuitous.

The judgment is wrong, for the damages adjudged exceed the amount claimed in the declaration.

Fraud was pleaded, the evidence was relevant, whatever might have been its weight; but the Judge told the Jury that Short’s capacity, was the only question; thus disposing of the question of fraud himself.

Hillman, contra.

No traverse, technically so called, is here necessary. The inquisition is only prima fade evidence, and may be contradicted. The effect of the inquisition is to permit the Committee of the lunatic ti> *73plead the lunacy, which, without such inquisition, the lunatic, himself, could not do. This point has already been decided in this case. — (1 Hawks, R. 11.)

The confession and avoidance of an inquisition, finding a party to be a lunatic, by no means admits the fact that he is a lunátic. The confession admits that there is such an inquisition, and the avoidance denies the conclusion drawn from it. The only effect is to change tlie enus probandi.

But the requisites of our act of Assembly, in cases of lunacy, havé not been complied with in this case. There was no petition •, the writ was not directed to the Sheriff ; Short was not present, which was essential. — (Ex-parte Crammer, 12 Ves. 445.) No person was author-ised, by law, to administer an oath to the Jury. These* things were all necessary, (1 New Rev. ch. 228,) and the inquisition, taken without them, is void, and should not have been received in evidence. — (1 Phillips Ev. SOI__2 H. Bl. 437.)

No evidence was offered to support the plea of frauds, and it was, therefore, unnecessary for the Judge to say any thing on that point.

As to the excess of damages, it is heard now for the first time; had it been objected below, the Court would have permitted an amendment, and this Court should now permit Plaintiff to enter a remittitur for the excess. ‘ It is no ground for a new trial j it does not affect the merits.

Hall, Judge,

delivered the opinion of the Court.

It seems to me, that the Court erred, in stating to the jury, the paper writing purporting to be an inquest of Bunacy, was not, and ought not to be considered in the light of an inquest. I think it was too late to question it; it had been received by the County Court as such $ they had proceeded to appoint a guardian in consequence of it, and the proceedings shew that, that guardian had been, by tk& Plaintiff kimself, made a party to tills suit; *74It is true, the writing or inquest was read to the Jury j but its effects might have been weakened, by stating to them, that it was only the opinion of twelve honest men, but not such evidence as a lawful inquest would be. Although received as an inquest, it would not be conclusive evidence; yet it ought to have been given to them in that character. We, therefore, think a new trial ought to be granted.