ing and disturbing to a mind already in a diseased or abnormal condition, it is by no means certain that the consequences would be more serious than those likely to follow from the sudden arrest and removal for confinement in the asylum of a person who believes himself perfectly sane. "An insane person," said the astute justice, "does not necessarily lose his sense of justice, or of his right to the protection of the law; and when he is seized without warning, and without the hearing of those whom he might believe would testify in his behalf, and delivered helpless into the hands of strangers, to be dealt with as they may decide within the limits of a large discretion, it is impossible that he should not feel keenly the seeming injustice and lawlessness of the proceeding." "Nothing but actual insanity," said Campbell, C. J., "will authorize the seclusion of one who makes known his objections, and claims against reception. If no objection is made by a sane person to his own seclusion he cannot complain of it afterward. The authorities are uniform that there must be consent or actual insanity": Van Deusen v. Newcomer, 40 Mich. 90, 142; Anderson v. Burrows, 4 Car. & P. 210; Rex v. Turlington, 2 Burr. 1115; Hall v. Semple, 3 Fost. & F. 337; Fletcher v. Fletcher, 1 El. & E. 420; Look v. Dean, 108 Mass. 116; 11 Am. Rep. 323; Colby v. Jackson, 12 N. H. 526.

Insanity has a multitude of forms, and while a dangerous maniac may be restrained temporarily, even by a private citizen without warrant, until he can be safely released or arrested upon legal process, or committed to an asylum under legal authority, this is not the case in the milder forms of insanity, and even a desire to promote the welfare of the unfortunate indi vidual does not justify an arrest, for nothing is more harmless than some of the milder forms of insanity. The right of personal liberty is deemed too sacred to be left to the determination of an irresponsible individual, however conscientious. The law gives insane persons the safeguards of legal proceedings, and the care of responsible guardians: Keleher v. Putnam, 60 N. H. 30; 49 Ain. Rep. 304. A complaint charging one with being insane need not necessarily be preferred by a physician, but the machinery of the investigating power may be set in motion by the affidavit of a layman: Matter of Zimmer, 15 Hun, 214.

Notice. If it is true, as held in Territory v. Sheriff of Gallatin County, 6 Mont. 297, that the law providing for the examination and commitment of persons alleged to be insane is constitutional, though imperfect in its protective requirements, that the law in such summary proceedings is mandatory, and that every step provided must be strictly pursued (State v. Baird, 47 Mo. 301; Meurer's Appeal, 119 Pa. St. 115), it would seem that, in lunacy proceedings, an inquisition is void unless notice is given or it appears from the proceedings why it was not given, or defendant's presence required: McCurry v. Hooper, 12 Ala. 823; 46 Am. Dec. 280; Dutcher v. Hill, 29 Mo. 271; 77 Am. Dec. 572; and it has been held that a commission to examine a person alleged to be an imbecile, etc., issued without the requisite notice, and neither preceded nor followed before judgment by the appointment of a guardian ad litem, is not aided by the presence of the imbecile and his representative by counsel, even when the counsel gives his consent to the judgment appointing the guardian, it appearing that the commission issued one day was executed the next, and that the judgment appointing the guardian followed immediately. "The object of notice," it is said, “is that there may be due warning to make objection for legal cause to the commission or any of the commissioners as well as to prepare for adducing evidence on the main question": Morton v. Sims, 64 Ga. 298.

We have always understood that no judgment of a court is supported by due process of law if rendered without jurisdiction of the subject matter and notice to the party; but some of the courts have not been over strict in applying the doctrine of notice to cases of insanity. The very object of requiring notice to be given to a party charged with insanity, or of requiring him to be produced in open court when possible, would seem to be designed to prevent fraud in the procuring of verdicts of insanity without affording the defendant an opportunity of being heard. Yet it has been held that an inquisition in lunacy will not be set aside for want of notice of the inquisition in the absence of proof that the alleged lunatic did not have notice of the inquisition, and suffer prejudice for that reasou: In re Lindsley, 46 N. J. Eq. 358. In this case a constable, eleven days prior to the taking of the inquisition, attempted to serve a written notice thereof upon the alleged lunatic at the house of her brother, where she lived. The brother refused to admit the constable, who then served the notice upon the brother. Upon the same day the constable served a similar notice upon the attorney who had represented the alleged lunatic in similar proceedings which had there. tofore been had; and the attorney thus served appeared at the taking of the inquisition in behalf of the alleged lunatic, and examined and cross-examined witnesses for her without objecting that she had not been properly notified. In New York it is requisite, before the court may proceed in lunacy pro ceedings, that personal and written notice be served upon the alleged lunatic, in addition to the notice required by section 2325 of the Code of Civil Procedure, unless upon a clear case, showing it to be improper or unsafe to give such notice, an order has been made by the court dispensing with it: Matter of Blewitt, 131 N. Y. 541. In this case it was said that a very clear case should be made before the court should proceed in lunacy proceedings, in the absence of actual personal and written notice to the party, and that, unless such a case is made by the petition or affidavits, and an order made by the court dispensing with personal notice and providing for notice to relatives or others in lieu of personal notice, an adjudication in the absence of such notice should be set aside. "The cases," said the court, "must be very rare in which a notice may not be served on the alleged lunatic, and it seems to us the better practice would be to require service of notice upon the party (if within the jurisdiction) in all cases, in addition to notice to relatives and others as required by section 2325 of the code. Attempts by interested persons to get control of the person and property of another by the aid of lunacy proceedings, or proceedings on the ground of habitual drunkenness are not infrequent, and no precaution should be omitted which may apprise the party of the proposed action, and enable him to appear and defend. The authorities and text-writers assume that the party proceeded against should have notice of the time and place of executing the commission": See Matter of Blewitt, 131 N. Y. 541, 547; In re Demelt, 27 Hun, 480. These observations were called out from the fact that the statute providing for notice to relatives and others did not touch the question of the right of the alleged lunatic to have notice also: Matter of Blewitt, 131 N. Y. 541, 547. In the later case, however, of Gridley v. College etc., 137 N. Y. 327, the court makes a distinction between notices. A proceeding de idiota inquirendo was instituted by a parent of the person proceeded against, and a committee was appointed. Some years afterward this proceeding was attacked collaterally in an action to recover moneys paid by mistake. The attack was made when the papers in the proceeding were offered in evidence, on the ground that the papers showed that the

court never acquired jurisdiction of the proceeding, and further, upon the ground that no notice of the proceeding was ever given to the idiot.. It did not appear from the record that all proper notices were not given, and no proof was offered upon the trial to show that the court did not, in fact, acquire jurisdiction. The appellate court upheld the jurisdiction on the ground that, "though the existence of any jurisdictional fact may not be affirmed upon the record, it will be presumed, upon a collateral attack, that the court, if of general jurisdiction, has acted correctly and with due authority, and its judgment is as valid as though every fact necessary to jurisdiction affirmatively appeared," citing Freeman on Judgments, section 124. As to the question of notice, the court said: "It was not necessary that she (the idiot) should have notice of the application for the commission. Without hearing her and without notice to her the court could constitute the tribunal which was to make inquiry into her mental condition. In pursuance of the order (appointing the commissioners), a time and place for the execution of the commission were appointed, and a jury was summoned by the sheriff, and it appears by proof contained in the record of the proceed. ings that the idiot had notice of the time and place of the execution of the commission. The record does not disclose that she had notice of any of the subsequent proceedings confirming the findings of the jury and appointing the committee. We do not deem it important now to determine whether the proceedings would be absolutely void and a nullity if no notice whatever had been given to the idiot of any of the proceedings instituted upon the petition of her mother, who had charge of her. They would have been invalid undoubtedly in the sense that they would have been set aside as irregular upon the application of any person who had a right to be heard, as we held in Matter of Blewitt, 131 N. Y. 546. But if notice was necessary, the notice given of the time and place of the execution of the writ was sufficient to give the court jurisdiction of the matter. The person proceeded against by such a writ should have notice of the motion to confirm the finding of the jury and for the appointment of the committee, and if such notice be not given, upon the motion of any person entitled to be heard, a court having jurisdiction of the matter may set those proceedings aside. But where the person proceeded against has had notice of the vital part of the proceeding, to wit, the execution of the writ, there is no ground for saying that the proceedings are absolutely void."

The supreme court of Iowa, in Chavennes v. Priestley, 80 Iowa, 316, has probably gone further than any other in attaching little importance to notice in such cases, proceeding, doubtless, upon the assumption that notice in many cases of insanity would be but an idle form. That case was an action for damages for calling the plaintiff insane. The defense was that he had been adjudged insane according to the statute, and that the adjudication had never been revoked or the plaintiff discharged from custody. The plaintiff, in reply to the defendant's answer setting up the adjudication of insanity, alleged that he had no notice of the pendency of the proceedings before the commissioners, and was not present in person or represented by an attorney; that the act creating the board of commissioners of insanity was void, because it did not provide for notice of such actions; and that the effect was to restrain a person of his liberty without due process of law." The court held, however, that the constitutional provision that "no person shall be deprived of life, liberty, or property without due process of law" does not require notice to a person, or his appearance, before he can be law. fully adjudged insane, and accordingly restrained; and that the statute was

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valid, and not unconstitutional, because it contemplates that a person may be adjudged insane, and restrained accordingly, without notice or appear. The court assumed that plaintiff's absence was justified by the facts, and said: "It is not a case in which he is adjudged at fault, or in default, and for which there is a forfeiture of liberty or property, but only a method by which the public discharges its duty to a citizen. The misfortunes of citizens sometimes place them where, for their care and preservation, restraints are necessary, and such restraints are even justified at the hands of private persons. They are not in such cases 'deprived of their liberty' within the meaning of the constitution." It seems clear, from the later cases, especially those from New York, that, in lunacy proceedings, a presumption will be indulged that all proper notices were served, in the absence of any thing in the record to show that they were not served: Grid. ley v. College etc., 137 N. Y. 327; that a failure to give notice of the application for the appointment of a committee to all the next of kin does not deprive the court of jurisdiction; and that it is sufficient, upon the hearing of the alleged lunatic's motion to set aside the order appointing the commission, that all the parties interested have an opportunity to be heard: In re Demell, 27 Hun, 480. In lunacy proceedings, or proceedings for the appointment of a guardian for an alleged incompetent person, the heirs, whether resident or nonresident, have no absolute right to notice: Mohr v. Manierre, 101 U. S. 417; Munger v. Judge of Probate, 86 Mich. 363; In re Rogers, 9 Abb. N. C. 141.

Evidence-Hearing-Setting Aside Inquisition.—In a lunacy proceeding the unsoundness of mind is the essential thing, and must be clearly established as an independent proposition: In re Shaul, 40 How. Pr. 204. An inquisition de lunatico inquirendo simply makes a prima facie case; and where there is no reason to suspect fraud, the test, in cases where mental unsoundness is charged, is, Did the person whose act is challenged possess sufficient mind to understand, in a reasonable manner, the nature and effect of the act he was doing, or the business he was transacting? Hill v. Day, 34 N. J. Eq. 150. The opinions of witnesses, who are not physicians or experts in matters of insanity, are entitled to little or no weight as evidence in a trial involving the sanity of a person. They should state the facts and incidents in the life and conduct of the party, from which the court alone is authorized to draw inferences and legal deductions touching the true condi tion of the mind of the person on trial for interdiction; but great weight and legal effect will be given to the opinion and report of physicians and experts appointed to inquire into the condition of the party: Eloi v. Eloi, 36 La. Ann. 563. If the party charged testifies, his conduct is to be considered by the jury as the conduct of any other witness is considered: Fiscus v. Turner, 125 Ind. 46. And he has the right to appear and testify before the jury: In re Dickie, 7 Abb. N. C. 417. In Commonwealth v. Haskell, 2 Brewst. 491, we find the following propositions, viz: That insanity is a mental disease, and must indicate a change in the normal condition; that a change is not, of course, conclusive evidence of insanity, for it may be unattended by any symptoms of disturbance, and may be marked by propriety and moderation; that mere eccentricity or peculiarity is not evidence of insanity where it is shown to be the normal characteristic of the defend. ant; that mere weakness of intellect is not of itself sufficient to establish insanity, for it may coexist with some degree of power; that one who alleges the insanity of himself or of another must prove it; that the presence of insanity is to be detected by comparing the symptoms of the defendant with

the standard of health, taking into consideration the habits and peculiari. ties of the defendant when sane, and looking to the causes producing the change; that evidence of insanity in the defendant's family is entitled to consideration; that the test in cases of insanity lies in the word "power"— has the defendant in a criminal case the power to distinguish right from wrong, and the power to adhere to the right and to avoid the wrong ?-in other cases, has the defendant, in addition to the capacities mentioned, the power to govern his mind, his body, and his estate; that the issue in a proceeding of lunacy is, whether the defendant has been so far deprived of his reason and understanding as to be unable to govern himself or to manage his affairs; that, on the trial of a traverse of a finding in lunacy, the commencement and conclusion are with the commonwealth; that the finding of the original jury upon the petition is not evidence before the jury who try the traverse; that the commonwealth, having first shown that the defend. ant in a lunacy proceeding was insane before the filing of the petition, may prove his mental condition up to the time of the trial; that it, having shown violence of the defendant toward his wife, may ask the witness "What was the conduct of the wife"? and that it having read in evidence as proof of delusion a letter from the defendant charging others with serious crimes, it is competent for the defendant to prove that one of the charges was not a delusion, but a fact. It is not necessary that the presumption in favor of the sanity of the alleged lunatic should be rebutted by evidence not admitting of a doubt before a verdict can be properly rendered for the commonwealth: Commonwealth v. Haskell, 2 Brewst. 491, 508. Evidence voluntarily offered in such cases may be received and acted upon the same as that obtained under compulsory process: Matter of Kings County Insane Asylum, 7 Abb. N. C. 425. Under the law of New York the inquiry as to sanity must be confined to the incompetency of the person at the time the inquisition is held, and it is error to include in it a statement that the incompetency existed for any definite period prior thereto: In re Demelt, 27 Hun, 480.

Upon the hearing of a motion, made by an alleged lunatic, to set aside the order appointing the commission, it is sufficient if all the parties interested have an opportunity to be heard: In re Demelt, 27 Hun, 480. An inquisition in lunacy may be traversed, but, in New Jersey, this cannot be claimed by the alleged lunatic as an absolute right. To permit it lies within the discretion of the court. But, when leave is requested, the chancellor may privately examine the alleged lunatic, to ascertain if he deliberately and understandingly desires the privilege asked for: In re Lindsley, 46 N. J. Eq. 358. In that state, at a personal examination of an alleged lunatic by the commissioners and jurors, all other persons, including counsel, may be excluded, so that the commissioners and jurors may be at liberty to exercise their own observations: In re Lindsley, 46 N. J. Eq. 358.

An inquisition in lunacy will not be set aside for mere irregularity when there is no doubt as to the lunacy of the party concerned: Matter of Rogers, 9 Abb. N. C. 141. The previous service of a juror upon a similar inquisition touching the lunacy of the same person is no ground for setting the inquisition aside, there being no actual bias or misconduct imputable to the juror: In re Lindsley, 46 N. J. Eq. 358. But a refusal to adjourn an inquisition for a reasonable time to enable the party charged to make necessary preparation for trial, when he has been prevented from making that preparation by the day named in the notice, is good ground for setting aside the inquisition: In re Jewell, 26 N. J. Eq. 299.

Jury Trial.-One cannot be secluded in invita as an insane person until