| Pa. | Jan 5, 1874
The opinion of the court was delivered, January 5th 1874, by
Issues of fact, whether by way of traverse or a feigned issue, when tried before a jury, according to the course of the common law, have always been deemed the subjects of a writ of error. The trial is conducted and bills of exception taken to the evidence or the charge as in other trials before a jury. Hence, when the legislature provided a writ of error in the case of feigned issues from the Orphans’ Court, it declared that the writ should lie in the same manner as in cases where feigned issues are directed by a Court of Common Pleas: Act 10th April 1848, 1 Bright. Dig. 603, pi. 5. Issues of fact in cases of distribution were also made subject to a writ of error: 1 Bright. Dig. 656, pi. 107. To put an end to all doubt on the subject of feigned issues, the Act of 12th February 1869 (Pamph. L. 3) extended the writ of error to all cases of feigned issue where exceptions have been or shall be taken to the rulings or charge of the court: 1 Bright. Dig. 604, pi. 9. The traverse of the inquisition of lunacy or habitual drunkenness is, by the Act of 13th June 1836, § 12, assimilated to cases
The fourth and fifteenth assignments of error raise the question as to the mode of proceeding upon the trial of the traverse. The Commonwealth gave in evidence the inquisition and finding of the jury, that John McGinniss, the traverser, was an habitual drunkard, which were objected to and received under exception, and then rested. The traverser gave evidence to disprove the finding of habitual drunkenness. The Commonwealth then offered to rebut by evidence in support of the finding, to which it was objected that such evidence was in chief, and ought to have been given before the traverser began his evidence. But the mode of proceeding was clearly right. The finding of the inquisition stands until it is set aside or disproved, and it may be unnecessary for the Commonwealth to give any evidence. This effect of the finding is primá facie, according to many decisions, throwing the burden of disproof on the lunatic or habitual drunkard: Hutchinson v. Sandt, 4 Rawle 234" court="Pa." date_filed="1833-03-18" href="https://app.midpage.ai/document/hutchinson-v-sandt-6314513?utm_source=webapp" opinion_id="6314513">4 Rawle 234; Willis v. Willis, 2 Jones 159; Gangwere’s Estate, 2 Harris 417; Klohs v. Klohs, 11 P. F. Smith 245. In Ludwick v. Commonwealth, 6 Harris 175, Justice Rogers said of the finding by the inquest: “ His incapacity in that event is a conclusion of law; it is not necessary to say it is presumvptio juris de jure, but at least it throws the burden of'capacity on the traverser.” The case of Rogers v. Walker, 6 Barr 371, really decides the point before us, for there it was contended that after the defendant’s proofs were given in rebuttal, the finding was to be laid out of the case; but Gibson, C. J., denied this, saying that, “ like legal presumption, an inquisition continues to operate till overpowered; and, standing as full proof till then, it necessarily remains before the jury till the question of sanity has been decided by them. It consequently stands as a particular in the proofs.” See also the remarks of Thompson, C. J., in Leckey v. Cunningham, 6 P. F. Smith 373. The effect of the finding, even when a traverse is put in, is to place the care and custody of the estate of the lunatic or habitual drunkard into the hands of the court: Sect. 13, Act 13th June 1836, 2 Bright. Dig. 982, pi. 16. Indeed, even before the return of the inquisition, but after a finding of lunacy, it has been held that a receiver may be appointed: Kenton’s Case, 5 Binn. 613" court="Pa." date_filed="1813-07-17" href="https://app.midpage.ai/document/cooper-v-rankin-6313723?utm_source=webapp" opinion_id="6313723">5 Binn. 613. It follows, therefore, that the Commonwealth might, in the first instance, rely on the finding, and afterwards, in answer to the evidence of the traverser, had the right to go into full proof of his habitual drunkenness. According to Sir William
It is unnecessary to say anything as to other assignments of error, except that under the Act of 13th June 1836, it is sufficient to find the person an habitual drunkard. The legal consequences flow from that fact, and not from any supposed or actual capacity of the habitual drunkard to manage his business well. When the habit of drunkenness is found, the law itself establishes the incapacity. It is, therefore, not the province of the jury, upon a traverse of the inquisition, to determine the extent of the traverser’s ability to transact his business. They decide only the habit of drunkenness: Ludwick v. The Commonwealth, 6 Harris 173; Sill v. McKnight, 7 W. & S. 244.
Judgment affirmed.