*Orangeburgh.*

Tried before Chancellor James.

case *rsxni.*

#### Exparte James E. Glen.

The Court will not set aside an inquisition taken under a coUU mission of lunacy, obtained with a view to set aside the marriage of tho alleged lunatic, when the jury have found that the woman was not an ideot or lunatic, though of weak understanding. Some irregularity in the proceedings of the commissioners and jury, will not induce the court to set aside the inquisition, and to order a new one, in a case of su'ch delicacy, and when tire court is satisfied that' substantial justice has been done.

JUNE, 1816.

Maria RoriNson was alleged to be a young woman of a very weak mind. Her father had bequeathed her certain property, with a contingent limitation over to her sister, who intermarried with James E. Glen the petitioner. Maria Robinson intermarried with John Frederick, and has had issue by him. The marriage took, place at her sister’s house, and no objections were then, made, by her relations. Afterwards James E. Glen obtained an order from a Chancellor at Chambers, ground, cd on affidavits, for a com. ission de lunático inquirendo, respecting the said Maria Robinson, alias Frederick, Tho jury made an inquisition, and returned that the woman was neither an ideot nor a lunatic, but was of weak mind. Whereupon a petition was presented by Mr. Clifton; on behalf of James E. Glen, to the Circuit Court' of Orangcbqrgh, and a motion was made to- quash this *547inquisition, and the return made thereon, and to order a new writ, on the ground of irregularity in conducting the inquisition, principally on account of the commissioners and the jury refusing to allow further time to procure witnesses to prove the idiocy or lunacy of Maria Robinson. But Chancellor James, then holding the Circuit Court, rejected the motion, and confirmed the inquisition ; because it appeared to him that substantial justice liad been done in the case, notwithstanding there mightbe some irregularity in conducting the proceedings ; and because of the delicacy of the subject, and the impossibility of restoring the woman to her former condition ; more espe - cially too, as it did not appear that she had been entrapped and carried off from her friends, but had been married at her sister’s house, and the ceremony performed by the very person whose testimony was now wanted to prove her idiocy or lunacy.

From *this*opinion and judgment of the Circuit judge, an appeal was made, and Mr. Clifton for the appellant, furnished the following brief;

This was a motion to quash an inquisition of lunacy. A writ had been issued' to inquire into the idiocy or lunacy of Maria Robinson, otherwise called Maria Frederic. It appeared that Maria Robinson had intermarried with John Frederic. It was stated also in the affidavit of Benjamin Tarrant, that Maria Robinson was an idiot, and never possessed a mind capable of taking care oi* herself and her estate; and that Frederick had married her by the interference of her sister, Mrs. Millhouse. This writ had been ordered by a judge at Chambers, and upon the meeting of the commissioners and jury, they proceeded to examine the woman herself; and then Mr. Clifton who attended for the petitioner, requested the commissioners to adjourn (it being late in the afternoon) in order to hear further evidence the next day; and he produced several letters to shew that the commissioners having delayed acting to so late a period, and that he having had a very short notice of their intention to execute the writ, he had not had time to produce the necessary witnesses. This motion was opposed by Maj. Felder, *548who appeared for John Frederic, the pretended husband*-wh0 urged that the commissioners had no right to adjourn fr°m day to day, and as the petitioner could no shew subpoenas served on the witnesses, they ought not to do so. The motion for adjournment was overruled, and the case was heard without witnesses on the part of the petitioner. The commissioners examined a Mr. Mill-house, l|er brother-in-law, upon which another question arose, *“*whether the jury were hound to return, or report the real state of her mind, or whether they were bound to return idiot or not, lunatic or not.” Mr. Clifton insisted on the former, and Mr. Felder for the latter form of return.

The witness was asked if she Was an idiot according •to the definition read ? Who replied she was not. The jury found accordingly that she was neither idiot nor lunatic; but of weak mind. Clifton then moved the court upon affidavits to quash the inquisition, and to order a new writ, which was overruled by his honor, and the inquisition affirmed.

From this order the petitioner appeals on the following grounds:

First, — That the inquest ought not to have been *affirmed;*the affidavits exhibited, shewing that the com-niissioners precipitated the conclusion of the case, ref-fusing to adjourn for further evidence.

Second, — Because the commissioners restricted the jury to find and return that she Is idiot or not, lunatic or not, without shewing the real state of the mind.

Third, — Because the comm ission well lies ta enquire of the sanity or insanity of a woman, though pretended to be married, when found to be incapable of contracting or transacting the common affaire of life, or never to have been of sound mind.

Mr. Clifton contended that where there is any misconduct in the commissioners, in executing the writ, the court may quash it, and order a new commission. Ex-parteRoberts, 3 Atk. 6,169, IT'D- 174. They havepow. cr to summon witnesses as incidvit to their office. Ex-porte Lund; 6 Yes. jr. 784. -Esparto Pounufort, 3 Ait.*--*549170,174. Exparte Ashton, 171, 174. And the enqui-ry may be made as to the state of a married woman at the time of the alleged marriage. 5 Yez. 832. 8 Yez. 65-.

The appeal was heard at Columbia, and the court delivered the following judgment:

A petition was preferred to the 'Circuit Court to quash an inquisition taken under a commission to enquire whether Maria Robinson, who married John Frederic, was a lunatic or not. The petition charged misbehaviour in the commissioners and jury, in hurrying the proceedings and refusing to allow sufficient time for procuring witnesses. The Circuit Court rejected the application and confirmed the return : and this appeal is now made on the same grounds which before ware insisted on.

There is no doubt that any misbehaviour in the execution of a commission, is a good ground for quashing it, and the circumstances shewn in this case would induce us to order a new commission, if the regularity of the proceedings were alone considered. But it appears to us from the examination of Mrs. Frederic by the commissioners, that another inquisition is not necessary. The answers given by her, certainly shew some understanding, although a defective one, and these afford higher evidence of the true state of licr mind, than the opinions of any witnesses on the subject could do. There may possibly be so much imbecility, as to render her incapable of making contracts which would bind her estate, but this imbecility does not appear to exist in so great a degree as to incapacitate her from contracting marriage, which seems to be the chief object of the petitioner. It is also a strong reason against any further interference, that she ivas not enticed away from her friends, but was married in her sister’s bouse, in which she lived, and the ceremony was performed by the very person who the petitioner states to be his principal witness. If the petitioner, who has a contingent remainder in the estate of Mrs. Frederic, wishes to secure it from waste, he must fde his bill for that purpose ; but the court will not, as the case now presents itself, subject her to another inquisition*

*550It is therefore ordered and adjudged that the decree of the Circuit Court be affirmed.

Thomas Watte s,

HeNky W. Desaussure,

W. D. James.