lunatic before them for their inspection and that of the jury, if deemed desirable, and this, in all cases wherever possible, should be done. 2 Barb. Ch. Pr. 233; Matter of Russell, 1 Barb. Ch. 38. Should any custodian of the lunatic or other person interpose to prevent this inspection he may be punished. Thus, in Lord Wenman's case, his wife, who was an Irish peeress, and had charge of his person, was committed for contempt for not producing him when required (1 P. Wms. 701), or if the persons having charge of the lunatic carry him out of the State, the commission may still be executed in his absence. Ex parte Halse, 2 Ves., Sr., 405.

So, also, the commissioners must act with judicial impartiality, and in no way interfere with the course of procedure in selecting a jury. Hence upon the execution of a commission de lunatico, it is the duty of the sheriff alone to select and to summon the jurors. and it is both improper and irregular for the commissioners to dictate what persons are to be summoned. Matter of Wager, 6 Paige, 11.

No statute requires that the commissioners should be sworn, the order granting the commission giving them plenary authority to act without taking any preliminary oath of office.

In conducting the trial it is usual for the person first named upon the commission to act as president; to administer the oath to the jury; to read and explain the commission to them; to swear and examine the witnesses, who must testify both as to the lunacy of the party, his next of kin, and the value of his real and personal property. And some one of the commissioners should also charge and instruct the jury as to the matters to be found by them in their verdict. 2 Barb. Ch. Pr. 233.

In the case cited below, Chancellor Walworth, in directing the manner in which the jury should be charged, says, "but without argument of counsel on either side." Now since it was always a settled rule of practice in our Court of Chancery, that any party against whom a commission of lunacy was awarded could be represented by counsel (1 Moulton's Ch. Pr. 110), we know of no principle of law which would authorize the commissioners to refuse permission to such counsel to address the jury. For it might become a very essential part of his duty to enlighten the jury upon the value or significance of the evidence intro duced, and we do not well see, how, without great injustice to the parties interested, any counsel could legally be restricted to the examination of witnesses alone. Such a restriction has certainly never existed in England, and the question, therefore, has never called for special adjudication. Nor if raised before any of our courts do we believe it would receive any countenance.

In the Matter of Arnhout, 1 Paige, 497, Chancellor Walworth laid down the following as the rules to be observed by the commissioners in charging the jury, viz. The jury are to be instructed that, if twelve or more of them find that the party is not incompetent, they are to deliver their verdict accordingly, or if the same number decide against his competency, that they then find and determine the other facts directed to be inquired of, and that if twelve of them cannot agree either way, they report the fact to the commissioners in order that their return be made accordingly. And in relation to every legal question arising in the execution of the commission, a majority of the commissioners must decide.

DUTY OF SHERIFF.

The duty of the sheriff in executing the precept of the commissioners is to select and summon the jurors ta attend at the time and place named therein, and without suggestions from any one, not even the commissioners, as to the persons to be selected; to attend the inquisition in person, yet not to remain in the room with the jury during their deliberations. Matter of Wager, 6 Paige, 11.

When once the jury are sworn, although the number may be larger than is necessary for a legal inquisition, no "one can be withdrawn without impairing the validity of the proceedings. Tebout's Case, 9 Abb. 211. And if any challenges to jurors are made, it is for the commissioners to decide upon their validity. Matter of Wager, 6 Paige, 11.

INQUISITION.

An inquisition or inquest of office at common law was an inquiry made by the king's officer, being either a sheriff, coroner, or escheator virtute officii, or by commissioners specially appointed, concerning any matter relating to the king's revenues. It was in the nature of a suit brought by the king to establish his title by proof of the facts upon which his title depends. The object of an office was to provide a remedy for enforcing the right. Tomlyn's Dict., Inquest; Co. Litt. 310, b. Under the statute 32 Henry VIII, ch. 46, the court of wards and liveries was established to superintend and regulate these inquiries. The abolition of this court at the restoration and the substitution of commissions in the nature of writs of inquiry long ago changed the whole significance of this method of procedure in England. In our own country the old doctrine of inquest of office in relation to real property has only come up for adjudication in a few cases of alienage, but has been so modified by treaties, acts of Congress and statutes, as to be seldom alluded to now. Fairfax v. Hunter's Lessee, 7 Cranch; United States v. Repentigny, 5 Wall. 211. The subject is now generally merged in that of Escheats, as provided for by statute. Johnson v. Hart, 3 Johns. Cas. 322.

In the execution, however, of commissions of lunacy, the inquisition or inquest of office retains its usual significance. It is still a proceeding tending to the forfeiture of civil rights over one's person and property, dependent upon the degree of mental incapacity established. Its effects are legally tantamount to an office found for the State, with this condition, that, upon a restoration to reason, of the party once insane, he may have a supersedeas, and resume the control of his property. The forfeiture although continuous with the insanity is not, therefore, an absolute one. No change in this respect has been made in the trust assumed by the State, through its courts, in the estate of a lunatic, since the statute 17 Edw. 2. Its spirit still animates mutatis mutandis, our jurisprudence. The usual manner of holding an inquisition of lunacy is this:

The commissioners, sheriff and jurors, together with the witnesses, being assembled at the place and time appointed, counsel in behalf of the commission and of the lunatic may also be present. The trial thereupon proceeds, with or without the presence of the lunatic, as the case may be. But the commissioners and the jury may demand a view of and question the lunatic, and as before shown may compel the person having him in custody to produce him. If a previous order for this purpose has not been issued, and if, on the order so

given, the lunatic, if able to be removed (if not, the jury or some of them may visit the lunatic aud report to the rest), is not produced, the commissioners should return the fact to the court, whereupon an attachment will issue against such parties as for a contempt, with costs. 1 Moulton's Ch. Pr. 110; 1 Grant, 204; Ex parte Southcote, 2 Ves., Sr., 401; S. C., Ambl. 111; Lord Wenman's case, 1 P. Wms. 701; Matter of Russell, 1 Barb. Ch. 38.

The alleged lunatic may always be present if he pleases. It is a privilege, from which he cannot be excluded without invalidating the proceedings. Ex parte Cranmer, 12 Ves. 445; Ex parte Russell, 1 Barb. Ch. 38; Hinchman v. Richer, Bright. 181; Ex parte Lincoln, 1 Brewst. 392. The witnesses are then examined first as to the lunatic; next as to the value of the real and personal property of the lunatic, and lastly as to who are his next of kin. Counsel may then be heard on either side, and the jury having been duly charged by one of the commissioners as to the matters to be determined by their finding, thereupon retire to deliberate by themselves. It is illegal for any one, even the sheriff, to be present at such time. Matter of Arnhout, 1 Paige, 498. The jury having deliberated upon the matter of inquiry, the inquisition which has previously Deen prepared with blanks is read to them, and they direct in what way these blanks are to be filled. The commissioners and jury then sign and seal the inquisition, which, when executed, should be a full response and return to the commission, in relation to all matters therein to be inquired of. The inquisition is thereupon annexed to the commission, with the following return, viz.: "The execution of this commission appears in the schedule hereunto annexed," and the whole should be filed in the office of the county clerk. 1 Moulton's Ch. Pr. 111; 2 Barb. Ch. Pr. 233.

It is the usual practice on the return of a commission to move for an order confirming the same, upon reading the commission, return, and inquisition. But the commission may be quashed and a new one directed, in case of misconduct, or apparent insufficiency of the return; or a motion may be made for leave to traverse the same by any party aggrieved. And when. ever any finding is to be contested, the court will direct notice to be given to the other party, so that as many of these applications as can, may be heard together. Matter of Christie, 5 Paige, 242. Under such circumstances the first order granted may be one directing that the lunatic be brought into court for inspection, and if the court be not satisfied, the next order may award an issue at law to be made up under the direction of the court and conducted as directed; and a provisional order may, meanwhile, be made for the care of the lunatic's estate, until the fact of the lu nacy be decided by a verdict. The proceedings on the feigned issue and on return of verdict being as above directed, if no new trial or appeal interpose any further obstacles, the petition for the appointment of a committee which had been prepared and presented on the return of the commission and inquisition may then be acted upon. 1 Moulton's Ch. Pr. 111.

NEW COMMISSION.

It being entirely within the discretion of the court to confirm or not the finding of an inquisition, it follows that such a proceeding may be set aside whenever it is found to have been either irregular in its execution, in violation of the statute, or whenever again the verdict is plainly against evidence.

Thus an inquisition has been set aside because the alleged lunatic had no notice given him of its occurrence (Matter of Tracy, 1 Paige, 581); because a stranger was appointed committee without the assent of the relatives of the lunatic and without a reference (Lamoree's case, 11 Abb. 274; S. C., 32 Barb. 122, and 19 How. Pr. 375); because the commissioners directed the sheriff to summon certain persons as jurors (Matter of Wager, 6 Paige, 11); because the sheriff entered the room where the jury were deliberating upon their verdict and conversed with them (Matter of Arnhout, 1 Paige, 498); because the inquisition did not, in its return, conform to the statute, and find the party an idiot, lunatic, or person of unsound mind (Matter of Morgan, 7 Paige, 236; but see Matter of Mason, 1 Barb. S. C. 436); or because the commissioners refused to issue subpoenas in behalf of the alleged lunatic (Ex parte Plank, 3 Am. L. J. 518). An inquisition may also be set aside upon the personal examination of the luuatic by the court, and of the evidence adduced upon the trial, showing that the jury erred in finding their verdict. But in such case the introduction of new evidence, where no valid reason can be shown why the same was not produced upon the trial, will not be permitted ex parte to contradict the verdict, unless there has been gross error or undue prejudice exhibited on the part of the jury. Matter of Russell, 1 Barb. Ch. 38; Matter of Tebout, 9 Abb. 211.

But a misnomer merely of the lunatic in the inquisition and other proceedings will not, of itself, invalidate them. For it may be corrected by an order, entering such correction into future documents in which such lunatic's name is mentioned, the only point to be considered being the establishment of his identity. In re Crawford, 1 Myl. & Cr. 240.

The death or incapacity of one of the commissioners will render it necessary to suspend the execution of the commission, and to issue a new one. Shelford, p. 83, 1st ed.

Where the inquisition and proceedings have been set aside, for any cause, a second commission cannot be issued on the original petition, because the continuance of the reasons upon which the first was based cannot be presumed at law, but must be proved de novo. Hinchman v. Richie, Bright. 144, 182.

FEES OF COMMISSIONERS.

On the execution of a commission of lunacy, etc., the commissioners, for every day they are necessarily employed in hearing the testimony and taking the inquisition, shall be entitled to an allowance to be fixed by the court. The committee of a lunatic, idiot, or drunkard, may pay to the petitioner on whose application the commission was issued, or to his attorney, the costs and expenses of the application, and of the subsequent proceedings thereon, including the appointment of the committee, and without an order of the court for the payment thereof, when the bill of such costs and expenses has been duly taxed and filed with the clerk in whose office the appointment of such committee is entered, provided the whole amount of such costs and expenses does not exceed fifty dollars. where the costs and expenses exceed fifty dollars, the committee shall not be at liberty to pay the same without a special order of the court directing such payment. Supreme Court Rules, No. 86; Matter of Clapp, 20 How. Pr. 385.

But

And when no attorney is employed, they are entitled to the same fees that he would be for the same services

The jurors sworn upon any inquest of office are each entitled to twelve and a half cents. 3 R. S. 912.

The prosecutor of a charge of lunacy, if the same be made in good faith, will not be compelled to pay costs, even though the inquisition fail to establish the fact charged. Brower v. Fisher, 4 Johns. Ch. 440.

It has also been held that a solicitor has no legal claim against a lunatic for opposing, unsuccessfully, a commission against him. But the court may, in its discretion, allow him costs, where the fact of the lunacy was so much in doubt that the chancellor, if applied to, would have directed such opposition upon the execution of the commission. Matter of Conklin, 8 Paige, 450.

RECENT ENGLISH DECISIONS.

ACT OF GOD.

Statutory construction: shipping: crew compelled to leave vessel.-A statute which refers to the matter of a common law liability, and declares to whom it shall attach, will not thereby create a new and extended application of that liability, unless it contains words expressly declaring such a purpose. The 10 Vict., c. 27 (the Harbors, Docks and Piers Act, 1847,) enacted that "the owner of every vessel, or float of timber, shall be answerable to the undertakers for any damage done by such vessel or float of timber, through whose willful act or negligence any such damage is done; shall, also, be liable to make good the same; and the undertakers may detain any such vessel, or float of timber, until sufficient security has been given for the amount of damage done by the same." There was a proviso exempting the owner from liability in cases where the vessel was in charge of a licensed pilot, whom the owner was "bound by law to employ and put his vessel in charge of." Held (affirming the judgment of the Court of Appeal), that, in a case where the damage to the pier had been occasioned by a vessel through the violence of the winds and waves, at a time when the master and crew had been compelled to escape from the vessel, and had, consequently, no control whatever over it, the owners were not liable. Per the Lord Chancellor (Lord Cairus): The clause is a clause of procedure only, dealing with the mode in which a right of action already existing shall be asserted, but not creating a new and extended liability. River Wear Commissioners v. Adamson, L. R., 2 App. Cas. (H. L.)

743.

COMMON CARRIER.

Limitation of liability by special contract: unreasonable condition. A railway company made contracts to carry animals from a port of Ireland to a town in England, on "through "tickets. The paper or ticket contained, in substance, the following condition: "That with respect to any animals, etc., booked through by them or their agents, for conveyance partly by railway and partly by sea, or partly by canal and partly by sea, such animals, etc., will only be so conveyed on the condition that the company shall be exempt from any liability for any loss or damages which may arise during the carriage of such animals, etc., by sea, from the act of God, etc., accidents from machinery, etc., and all and every other damages and acci

dents of the seas, rivers, and navigation of whatever nature and kind soever, in the same manner as if the company had signed and delivered to the consignor a bill of lading containing such condition. Nor will the company be responsible for loss of, or damage to, animals, etc., arising from damages or accidents of the sea, or of steam navigation, the act of God, etc., jettison, barratry, collision, careless or unskillful navigation, accidents connected with machinery or boilers, or any default or negligence of the master or any of the officers or crews of the company's vessels." Held, that the words "master and crew of the company's vessels," in this condition applied to all such vessels as the company should employ, and not merely to vessels owned or worked by the company itself; and that the condition was unreasonable and void. If a railway company is guilty of an illegality by working steamboats, not being authorized by law to work them, it cannot set up such illegality as an answer to a claim for damages arising out of the working of such steamboats. Doolan v. Midland Railway Co., L. R., 2 App. Cas. (H. L.) 792.

CRIMINAL LAW.

Venue in case of embezzlement.-A clerk, whose duty it was to remit at once to his employers, in Middlesex, all moneys collected by him as their clerk, collected at York, on the 18th of April, a sum of money as such clerk, but never remitted any portion of it. On the 19th and 20th of April he wrote and posted from places in Yorkshire, to his employers in Middlesex, letters, making no mention of the money so collected, and on the 21st of April he wrote and posted at Doncaster, in Yorkshire, to his employers, in Middlesex, a letter which was intended to make them believe that he had not then, in fact, collected the money in question. These letters were duly received by the employers in Middlesex. Held, by Kelly, C. B., Field, Lindley, and Manisty, JJ., that the receipt of the letter of the 21st of April, in Middlesex, was sufficient to give jurisdiction to try the prisoner in Middlesex. Held, by Huddleston, B., contra, that no part of the crime was committed in Middlesex, and that the prisoner was wrongly indicted in that county. The Queen v. Rogers, L. R., 3 Q. B. D., C. C. R. 28.

LIBEL.

Person convicted of felony: effect of enduring the punishment: justification: 9 Geo. 4, c. 32, s. 3.-In an action by the editor of a newspaper for libel in calling him a "felon editor," the defendants justified, alleging that the plaintiff had been convicted of felony and sentenced to twelve months' hard labor. The plaintiff replied that after his conviction he underwent his sentence of twelve months' imprisonment and hard labor, and so became as cleared from the crime and its consequences as if he had received the queen's pardon under the great seal. On demurrer: Held, a good reply. Semble, that it is defamatory to call a person who has been convicted of felony "a convicted felon," if he has received a pardon or suffered his sentence. Leyman v. Latimer, L. R., 3 Ex. D. 15.

MINES.

Liability for overflow resulting from working mines.— A mine owner will not be liable to the owner of au adjacent mine for injury occasioned to such adjacent mine, where such injury proceeds from natural causes, in themselves beyond his control, though his own acts may have conduced to produce the injury,

if his acts have only been those of the proper and ordinary working of his own mine, without default or negligence. But where for his own convenience he does something, e. g., divert the course of a stream, he must take care that the new course provided for it shall be sufficient to prevent mischief from an overflow, so that, even if that overflow should be directly and mainly occasioned by an act of nature, his own conduct in not so forming the new and diverted course for the stream, of form and of sufficient capacity to carry off an accidental overflow of water, even of an exceptional kind, will be matter for consideration in determining the question of his liability. Fletcher v. Smith, L. R., 2 App. Cas. (H. L.) 781..

RIPARIAN RIGHTS.

Navigation of river above tide, not a public right.— Per Lord Hatherley: These are two totally distinct and different things; the one is the right of property, and the other is the right of navigation. The right of navigation is simply a right of way. Per Lord Blackburn: The public, who have acquired by user the right to navigate on an inland water, have no right of property. Per Lord Yordon: The right which the public have is a mere right to use the river for the purposes of navigation, similar to the right the public have to passage along a public road or foot-path through a private estate. Orr Ewing v. Colquhoun, L. R., 2 App. Cas. (H. L.) 839.

2. Proprietor's rights on both sides: right to build mill dam.-Per Lord Blackburn: The owner of the banks of a non-navigable river may, without any illegality, build a mill-dam across the stream within his own property, and divert the water into a mill-lade without asking leave of the proprietors above him, provided he does not obstruct the water from flowing as freely as it was wont; and without asking the leave of those proprietors below him, if he takes care to restore the water to its natural course before it enters their land. Ib.

SALE OF LAND.

Implied covenant for adjucent and subjacent support: injunction to restrain acts calculated to endanger.-The vendor of land adjoining other land of his own under which are mines and minerals, and who knows at the time of the sale that the vendee is about to erect upon the land so purchased substantial buildings, implied covenants that he will not use or permit the adjoining land to be used in such a manner as to derogate from his grant. A sold land to B for the purpose of an iron-foundry. Adjoining the land so sold to B, A had other land under which was coal. A afterward leased the minerals to C, who commenced working the coal within such a distance from the land of B as to be reasonably calculated to endanger its stability. Held, ground for an injunction against A and C, although no actual damage had been sustained by B. Siddons v. Short, Harley & Co., L. R., 2 C. P. D. 572.

RECENT BANKRUPTCY DECISIONS.

ARREST.

Bankrupt not entitled to release from arrest in civil action.- An adjudication of a bankrupt, who was under arrest in a civil action at the time the proceedings were commenced, does not entitle him to a release from such arrest. Sup. Ct., New Hampshire. Brandon National Bank v. Hatch, 16 Nat. Bankr. Reg. 468.

INDORSEMENT.

Where notice and protest not necessary to charge indorser.-Where a firm, which has indorsed a note of one of the partners, becomes bankrupt before the maturity of such note, protest and notice to the firm of its dishonor is not necessary in order to prove it against the joint assets. U. S. Dist. Ct., Massachusetts. Ex parte Russell; In re Paul, 16 Nat. Bankr. Reg. 476.

LIEN.

Rights of lien creditors against bankrupt estate and purchaser from assignee.- Where a suit against the bankrupt to enforce a lien is pending at the time of adjudication, the lien creditor may, before any final disposition of such suit, prove his demand in the Bankrupt Court, and have it allowed as a lien claim, with all the rights and privileges belonging to it under the bankrupt law. Where property has, by order of the. Bankrupt Court, been sold subject to a lien, the assignee's deed providing that such lien is to remain in full force, the purchaser is estopped to deny the validity of such lien. Where the Bankrupt Court has adjudged a claim to be a lien upon property of the bankrupt, it has jurisdiction of an action to enforce such lien against third parties who have purchased said property subject to the lien at a sale by the assignee. U. S. Dist. Ct., Maine. Bucknam v. Dunn, 16 Nat. Bankr. Reg. 470.

PARTIES.

Any creditor may intervene on return day.-Any creditor, whose interests are directly affected by the proceedings, may intervene and contest the allegations of the petition with regard to acts of bankruptcy, notwithstanding the debtor fails to appear on the return day. U. S. Dist. Ct., California. In re Jonas, 16 Nat. Bankr. Reg. 452.

PARTNERSHIP.

Petition against firm: who may join in: involuntary petition procured by debtor.—Where the requisite number of creditors join in a petition against a firm, it is not necessary that they should all be creditors of the firm. The taking of partnership property, when the firm is insolvent, to pay a debt not a debt of the firm, although each of the partners may be liable for it, is an act of bankruptcy. Where the requisite number of creditors have signed the petition, an adjudication will not be set aside on the ground that such petition was procured by the bankrupts as an involuntary one to avoid the necessity of procuring the assent of the necessary number of creditors in case of a deficiency of assets; there can be no legal fraud in procuring an adjudication on involuntary proceedings unless it should be followed by a discharge that could not be had on voluntary proceedings. An adjudication by default can only be opened at the instance of a party to the default. U. S. Dist. Ct., Vermont. In re Matot, 16 Nat. Bankr. Reg. 485.

PENDING ACTION.

Who may prosecute.-A bankrupt may continue to prosecute an action pending at the time of adjudication where the cause of action is one which does not pass to the assignee. Where the cause of action is one which passes to the assignee, he should be notified and, in case of his refusal, the action must be dismissed. An order that a nonsuit be entered in case the assignee did not appear within a specified time, held to be erroneous. Sup. Ct., New Hampshire. Towle v. Davenport, 16 Nat. Baukr. Reg. 478.