As the Legislature, designed that guardians should be appointed for idiots and lunatics alone, it is highly necessary that the inquisition, upon the authority of which the County Courts .exercise the power confided to them, shall distinctly state, that the person is an idiot or lunatic, or, by an equivalent description, pro sent the same meaning. Yery mischievous consequences might ensue from a laxity in this respect,.since by a Jury undertaking to measure the degrees of intellect, persons might be subjected to this guardianship, whose free ag.-ncy the law had not restrained, however wise, it might he thought on general reasoning to tie up the hands of spendthrifts and drunkards, as is done in some of the States.
An inquisition should, theretosr, be. regarded as a nullity.' which barely found that the party was of such weakness *14of mind as to be incapable of managing his own aífairs; ^or c'oe‘s not import a total privation of understanding, and, consequently, does not meet the legal acceptation of lunacy. The objection taken to this inquisition is, that it uses the terms “insane mind” and does not find Short to be a lunatic; but I think those words are of like signification, and do substantially conform to the requisites of the act. “ Unsound mind/’ which has the same meaning, in the law, with insanity, is frequently used in statutes in that sense. Lord Coke translates non compotes, “ persons iS of nonsano memory f’ and “ insanity,” both in law and according to the Latin word whence it is derived, imports madness.
It is argued by the appellee, that none can traverse the inquisition but those who had an interest at the time it was found; and, in support of this position, the words of the statute 2 Ed. 6, are cited, and several authorities relied on. In the technical sense of a traverse to an inquest of office, this is certainly correct; for the specific design of passing the statute was for the benefit of such persons as were sometimes deprived of their rights by untrue findings of offices. Persons holding terms for years were often put out of possession by reason of inquisitions, because such terms for years were not found; after which they had no remedy during the King’s possession, either by traverse or monstrans de droit, because such interests were not freehold.* Those persons only are entitled to traverse the inquisition; which is done by suing out a scire facias, according' to the statute. Hence, a person clairning under a deed from a lunatic after the inquisition, was a stranger, and had no right to a traverse. But the true enquiry here is, in what degree shall an inquisition be considered as evidence against a person claiming from a lunatic who is under guardianship. It is possible that a person may be found a lunatic, who is really not so; and very probable that a lunatic may have lucid intervals, *15in which no one could detect his incompetence. Hence, Serious mischiefs might arise to innocent persons, if they were concluded by an office. The rule of law, that no one shall be bound by a proceeding to which ho was neither party nor privy, ought not to find an exception in a case v;here the whole proceeding may be consummated without any notoriety beyond the neighborhood in. which it is transacted. The case cited from 2 Atkyns, is an authority to shew that such an inquisition is not conclusive,- for the Chancellor heard witnesses to disprove .the. lunacy found hy it, and, on the strength of their testimony, decreed that a purchase made by the supposed lunatic’ should stand. This shews that the sense in which he .used the word tra-versable was, that it might be contradicted by witnesses. In the case ex parte Barnsley,* the Chancellor says, that inquisitions of lunacy are not at all/conclusive; for they may bring actions at law, or a bill vio aéji. aside conveyances, so that it may be disputed afterwards upon the issue to be directed. In Collinson on idiots an'dq lunatics, it is distinctly laid clown that an inquisition is only- presumptive evidence of insanityq and not conclusive; so that in an action in respect of any contract or deed, it is for a Jury to determine whether, atibe time of executing it, the party was non compos, though, by- the inquisition, he was found to be non compos at such period. When, therefore, it is said in Bacon, that if a lunatic contract with another after office found, it is at the peril of him who makes the contract with him, it must be understood in reference to the risk he runs in not being able to disprove the inquisition. In such case, he would be concluded; since he would have no right to a traverse under the statute, being a strange)- when the office was found. Hut if he had contracted with a lunatic, who was not so found by office, the defence could not be set up against him, since no man can stultify himself. The reason of the thing, therefore, coincides with the authorities; and the nonsuit, must he set *16aside and anew trial granted, and tite Plaintiffs be al-*()',ve(^ °frhr evidence to verify the replication.
Upon the strength of the case of Faulder v. Silk, cited 2 Mad. Chan. 578, and that in 2 Atk. 412. as well as some others that might be referred to, 1 concur in the opinion that the inquisition is only primee facie evidence, and that evidence, contradictory, is admissible, If a lunatic, so found by inquisition, afterwards have lucid intervals before such inquisition be superseded, and ’during’ such interval enter into a contract, the other party may certainly prove the. fact, and have the benefit of it-* The effect of an inquisition is to permit the committee of the lunatic to plead the lunacy, which, without such inquisition, the lunatic himself could not do.
Henderson, Jiqlge, having been concerned in this cause at the Bar, did not sit; and Murphey, Judge, sat for him, and concurred.