1 From Nash.

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 and 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.

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.

…

Citation profile

How this case has been treated — in progress