Page:The English Reports v1 1900.pdf/699

On the 29th of April 1758, the appellants, George Rochfort and his wife, presented their petition to the Lord Chancellor of Ireland, setting forth the appellant Alice's title to the estate of Sir Gustavus Hume under a settlement, on failure of issue male of her sister Mary; that the respondent the Earl of Ely, then Ni-[451]-cholas Loftus Hume, was a minor, and had been from his infancy of unsound mind and understanding, and incapable of conducting his own affairs in the most ordinary occurrences of life; and praying a commission to be granted, to inquire into the capacity and understanding of the said minor, and whether he had ability sufficient to manage and transact his own affairs. And on the 5th of June following this petition was heard, when, upon reading several affidavits on behalf of both parties, the Lord Chancellor ordered, that a commission should issue to inquire whether the said Nicholas Loftus Hume, the minor, was an idiot, or a person of unsound mind; and if he was, whether he had been so from his nativity, or from any other and what time?

From this order the minor, by his guardian, appealed to the House of Lords; and the matter of the appeal having been taken into consideration, their Lordships, on the 15th of February 1759, resolved, "That no appeal to the House lies against an order, awarding a commission of idiocy or lunacy, by the Lord Chancellor, Lord Keeper, or Lords Commissioners of the Great Seal."^[1] (Jour. vol. 29. p. 425.)

On the 19th of December 1766, in consequence of another application by Rochfort and his wife, a commission issued, directed to certain persons therein named, to inquire whether the respondent the Earl was an idiot, or person of unsound mind. But before this commission was executed, the appellants applied by petition to the Lord Chancellor, praying, that the sheriffs of Dublin might return the grand pannel of freeholders, and that one of the Masters of the Court of Chancery might thereout strike a jury. This petition was grounded on an affidavit, that the Earl was intimately acquainted with one of the sheriffs, and that there was therefore great reason to apprehend, that an impartial jury would not be returned. But upon hearing this petition, on the 6th of January 1767, the Lord Chancellor refused to make any order, and dismissed it.

The jury having examined many witnesses, and also the Earl himself, returned a verdict, that his Lordship was not an idiot, or person of unsound mind. Whereupon Rochfort and his wife presented another petition to the Chancellor, praying, that this inquisition might be set aside, and that his Lordship would be pleased to examine the Earl personally, or that a new commission might issue. But on hearing this petition, on the 13th of March 1767, the Lord Chancellor declared, that he saw no reason for making any order, and therefore dismissed it.

Notwithstanding the declaration of the House upon the former appeal, the appellants thought proper to bring another, from the orders of dismission of the 5th of January and 13th of March 1767. And in support of this appeal it was said (C. Yorke, A. Forrester), that the former declaration of the House did not affect the present case, because that declaration was grounded on this certain principle, that such [452] commission being in nature of a writ de idiota, or de lunatico inquirendo, was a writ of right, and the subject entitled thereto ex debito justitiae; whereas the new commission now prayed, was no writ of right, but of discretion; and whether that discretion had or had not been properly exercised in making these two orders, must surely be a matter cognizable by the House; otherwise, be the error never so great, the unhappy Earl was deprived of the Royal protection which the law entitled him to, and left a prey to all who would take advantage of his weakness. But it is objected, that these orders being made on the petty bag side of the court, proceeding according to the rules of the common law, are not reviewable by appeal. Admitting this to be so, yet they are surely removeable by writ of error; for though the proceedings on this side of the Court of Chancery are not made up in parchment rolls, like those of other courts of law, yet they all remain regularly filed, and are as easily removed as any parchment record. Nor would the calling them interlocutory orders stand in the way, an interlocutory order being an intermediate direction of the court, in some stage of the cause between its commencement and