| N.C. | Jun 5, 1824
The signing of the bond was proved, and the sole question was as to defendant's capacity to contract; on which point much contradictory evidence was offered. The inquisition of lunacy, which appeared to *38 have been taken by the coroner and twelve freeholders and returned to the county court, and by it confirmed, was prior in point of time to the execution of the bond, and was offered in evidence. It was objected to for two reasons: First, it did not appear to have been taken by proper authority; and, second, it did not appear that the pretended lunatic was not present before the jury.
The proceedings on the inquiry as to defendant's sanity appeared to have been commenced by an order of Nash County court directing the coroner to summon a jury to inquire. The court permitted the proceedings to be read, subject to such remarks as it might make thereon in instructing the jury, and after explaining in his charge what the law intended by the reason and understanding sufficient to contract, (72) the presiding judge remarked on the proceedings that if regular they would be but prima facie evidence of defendant's incapacity, but that here they were irregularly taken and void as an inquisition, though the jury might give to them the same weight which they would to the opinions of any twelve respectable men. Verdict for the plaintiff; new trial refused; judgment, and appeal. It seems to me that the court erred in stating to the jury the paper-writing purporting to be an inquest of lunacy was not, and ought not to be considered in the light of an inquest. I think it was too late to question it. It had been received by the county court as such; they had proceeded to appoint a guardian in consequence of it, and the proceedings show that that guardian had been, by the plaintiff himself, made a party to this suit. It is true, the writing or inquest was read to the jury; but its effect might have been weakened by (74) stating to them that it was only the opinion of twelve honest men, but not such evidence as a lawful inquest would be. Although received as an inquest, it would not be conclusive evidence; yet it ought to have been given to them in that character. We, therefore, think a new trial ought to be granted.
PER CURIAM. New trial.
Cited: Parker v. Davis,