In re Hanks , 3 Johns. Ch. 567 ( 1818 )

The Chancellor.

The English practice in such cases seems generally to be for the lunatic himself to attend upon the hearing of the petition, that he may be inspected by the Chancellor. (Ex parte Bumpton, Moseley, 78. Ex parte Ferrars, Id. 332.) The court is, no doubt, to exercise a sound discretion on the question of superseding a commission, and if serious doubts be entertained of the sanity of the party, the commission may be retailed for a time, though the party be restored to his personal liberty, as was done in the case of Ferrars ; or the Chancellor may award an issue to ascertain the truth. In the late case of Manistre, (of which the proceedings are given in 2 Collinson on Lunacy, p. 746. and which I take this occasion to say, is a valuable work, both for doctrine and precedents, on this melancholy subject of the human mind in ruins,) there was an order, on the hearing of the petition of the lunatic, for all parties concerned to attend, by a given day, and of which notice was to be forthwith given; and on the day of the hearing, there were twenty affidavits read of the committee, and physicians, and others, and counsel heard for the petitioner and for the next of kin.

It is difficult to determine when the mind is restored, and - the force of the testimony must depend on the circumstances, whether the party has been led to those topics upon which his mind was affected. The disease is often very insidious. I have frequently been visited by lunatics against whom an inquisition has been returned, and a committee appointed. Their object was always to complain of the proceeding, or of the committee; and I have rarely been able, on such occasions, to detect the mental infirmity. Lord Eldon has observed, that he once, as counsel, succeeded in getting Lord Thurlow to supersede a commission, and was satisfied from many conferences with the party that he was perfectly rational. But when he obtained the order of supersedeas, and the party came to thank him for his services, he discovered the disorder, in five minutes, and regretted all he had done.

In the present case, the affidavits do not detail, in a circumstantial manner, the grounds upon which the opinions therein contained are formed, nor do they profess to be the affidavits of medical men. I should prefer, in this case, as the safest course, to refer the petition to a Master to take proof as to the allegations in the bill, on giving the committee due notice, and to examine the lunatic, if he should deem it advisable, and to report such proof with his opinion thereon. If it should, afterwards, be necessary, the lunatic can be brought before me.

Order accordingly.