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24 Miss. L.J. 79 (1952-1953)
Lunacy - Writ De Lunatico Inquirendo

handle is hein.journals/mislj24 and id is 93 raw text is: 1952]

Thomas Y. Minniece*
The writ de lunatico inquirendo is an old common law writ which
was and is now used for the purpose of inquiring concerning the lunacy
of an individual. There is a difference of opinion among the courts of this
country as to the exact procedure in using the writ under the old common
law. This difference of opinion has arisen in the numerous cases in which
the contention has been made that the commitment of a person as a lunatic
or the appointment of a guardian for an alleged lunatic was void because
the alleged lunatic did not have a jury trial.' All of the courts seem to
agree that the matter was not handled as a regular trial, but was more in
the nature of an inquest. The difference of opinion arises on the issue of
whether the right to a jury trial was ever abandoned under the old com-
mon law. The two positions are best stated in the cases of In re O'Connor,2
and Sporza v. German Savings Bank3. The California Court contended
in their opinion in the O'Connor case that under the common law, in its
earlier history, the profits of the lands of one found to be a lunatic passed
to the crown, and that, therefore, as a protection to property rights, the
issue was tried by a jury of twelve men. It further contended that in
later common law history, after mental diseases came to be recognized
as curable, such proceedings were summarily conducted or prosecuted
without the intervention of a jury, due provision being made for the care
and preservation of the patient's estate for his benefit while he remained
mentally incompetent. The Court of Appeals of New York in the Gernwn
Savings Bank case took the position that forfeiture to the king was always
for the benefit of the insane person; that the king as parens patriae under-
took the custody and care of such persons, and that the seizure of the
property was not for the benefit of the crown, but to prevent its dissipa-
tion by the lunatic and to use it in the upkeep of the insane person aS
a ward of the king. According to this Court, the property and person were
entrusted to curators who might be either the feudal lord or the next cif
kin. They were given the custody of the estate under the obligation of
applying the profits to the support of the incompetent, retaining the excess
to be returned with the estate in case of recovery. The court goes on to
state that this duty was afterwards transferred to the lord chancellor, not
as a part of his equitable jurisdiction, but as the king's delegate to ex-
ercise his special jurisdiction. The Court points out that the legislature
*Chancellor, 12th Chancery District, Meridian, Mississippi.
191 A.L.R. 88-99.
229 Cal. App. 225, 155 Pac. 115 (1915).
3192 N.Y. 8, 84 N.E. 406 (1908).

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