DAVIS v. LUMBER CO.

to make such a motion? No one except the defendant. No other creditor has been prejudiced or misled. If the defendant is now given the drafts or every dollar of their proceeds, it will get no more than it would have gotten in the first instance. Why not let it have them. Simply because it elected to treat them as the property of the bank by bringing a suit, which we say it had no right to bring. Why hold it to an election with one hand, and with the other wrench from it every benefit of its election? It had already elected to take back the drafts by vainly demanding them from the receiver. But we say that it re-elected when it brought its action. Why not let it elect a third time? This is a court of equity, dealing with equitable principles; the fund is intact, and all necessary parties are before the court.

I think that as the court has restrained the defendant from pursuing the remedy it elected, it thereby remitted the defendant to its original right of election. In 6 Enc. Pl. & Pr. 366 (c) it is said that "If the suitor has in his first action mistaken his remedy and adopted a mode of redress incompatible with the facts of his case and is defeated on that ground, he is still free to elect and proceed anew." Again, on the same page the rule is thus laid down: "V. The power to choose between conflicting remedies is substantially co-extensive with the right to prosecute or defend an action. Logical and legal consistency would seem to require that the right to litigate and the power to elect should stand on the same footing, the one co-ordinate with the other."

In the case at bar, the defendant has not sought to obtain its money from different funds, but has persistently followed the identical money in Burgan's hands, either indirectly through the surrender of the drafts or directly by attachment. Therefore, the inconsistent rights between which it was required to elect were rather in the nature of remedies. All that it wanted was the money in Burgan's hands. "Only

IN RE ANDERSON.

this, and nothing more." Moreover, it would seem that the defense of an inconsistent election, being in the nature of estoppel, should be pleaded to be effective. CLARK, C. J., concurs in the dissenting opinion.

IN RE ANDERSON.

(Filed March 24, 1903.)

1. INSANITY—Inquisition of Lunacy-Revised Statutes, Ch. 57-The Code, Sec. 1670, 1671.

Where, in an inquisition of lunacy, the jury finds the defendant to be of unsound mind and incompetent for want of understanding to manage his own affairs, but not an idiot or lunatic, the court should appoint a guardian.

2. JURISDICTION-Superior Court-Clerks of Courts-Appeal-Acts of 1887, Ch. 276-Actions-Special Proceedings.

Whenever any civil action or special proceeding begun before a clerk of the superior court shall be for any ground whatever sent to the superior court, the said court shall have jurisdiction, although the proceedings originally had before the clerk were a nullity.

A SPECIAL proceeding for the appointment of a guardian of J. T. Anderson, heard by Judge H. R. Bryan, at September Term, 1902, of the Superior Court of PENDER County. From a judgment appointing a guardian, J. T. Anderson, through his attorneys, appealed.

Bruce Williams and John D. Kerr, for the ward appellant.

Stevens, Beasley & Weeks, for the guardian.

MONTGOMERY, J. This proceeding was originally commenced before the Clerk of the Superior Court of Pender County, for the purpose of having a guardian appointed for J. T. Anderson, under the provisions of Section 1670 of The Code. The affidavits on which the proceeding was based did

IN RE ANDERSON.

not contain matter in which it was averred that Anderson was an idiot, or an inebriate, or a lunatic, but it was affirmed substantially that he was "incompetent for want of understanding, to manage his own affairs." A most serious matter, both to the public and to the individual person, was involved in the question presented to the clerk, and he should have seen that every requirement of the statute had been strictly complied with. That officer however, without notice. to Anderson and without a jury of twelve men who should inquire into the state of Anderson, as the statute plainly requires, made an adjudication himself of the matter, and appointed the guardian. A motion was afterward made to have that appointment revoked for the reasons above mentioned, which motion the clerk declined to allow. Upon the hearing of the appeal of Anderson from the ruling of the clerk, his Honor ordered and adjudged that "this action be and is hereby remanded to the clerk to convene an inquisition of idiocy or lunacy upon notice as is required by law, upon notice of ten days to J. T. Anderson." Under that order a jury of inquisition was summoned and convened, and two issues were submitted to them, First, "Is J. T. Anderson an idiot or lunatic, or either?" and Second, "Is J. T. Anderson of unsound mind, and incompetent for want of understanding to manage his own affairs?" The jury answered the first issue "no" and the second issue "yes". An appeal was taken by Anderson to the Superior Court from the order of the clerk appointing a guardian for Anderson upon the verdict of the jury, and at the next term of the Superior Court the judgment of the clerk was in all respects confirmed and the appeal dismissed.

As we said in the beginning of this opinion the matter involved in this appeal is a most serious one. The question is, can the custody of the body and property of one, who is declared by a jury of inquisition to be incompetent for want

IN RE ANDERSON.

of understanding to manage his own affairs, be committed to a guardian? If such be the law, then it is plain that abuses may grow up under its practice which will be almost certain, in many cases, to produce most harmful and pernicious consequences. It may appear wise and proper under general principles to restrain drunkards and spendthrifts from wasting their property, but when in doing so we confer upon juries the power to judge of the grade, the quality of the mind, the understanding, we are in peril of subjecting to restraint persons whose free agency ought not to be restrained by law. But the legislature has the right to enact such a law, and if such a law has been enacted it is our simple duty to uphold it. Under Chapter 57 of the Revised Statutes (Acts 1784, Ch. 228) the County Courts were authorized and required to appoint guardians for any idiot or lunatic possessed of property either real or personal, upon the finding of a jury of idiocy or lunacv; and in the Revised Code the same provision of law was brought forward. In The Code, Sec. 1670, other classes of persons than idiots and lunatics are added, for whom guardians may be appointed. Those added classes are "inebriates" and those who are incompetent for want of understanding to manage their own affairs by reason of the excessive use of intoxicating drinks or other cause." The additions to The Revised Code were made originally in the Code of Civil Procedure, and brought forward in The Code. The law, The Code, Sec. 1670, now reads "Any person in behalf of one who is deemed an idiot, inebriate or lunatic, or incompetent from want of understanding to manage his own affairs by reason of the excessive use of intoxicating drinks or other cause, may file a petition before the Clerk of the Superior Court of the County where such supposed idiot, inebriate or lunatic resides, setting forth the facts duly verified by the oath of the petitioner; whereupon such clerk shall issue an order upon notice to the sup

IN RE ANDERSON.

posed idiot, inebriate or lunatic, to the sheriff of the county commanding him to summon a jury of twelve men to inquire into the state of such supposed idiot, inebriate or lunatic. The juries shall make return of their proceedings under their hands to the clerk who shall file and record the same; and he shall proceed to appoint a guardian of any person so found to be an idiot, inebriate or lunatic by inquisition of a jury, as in case of orphans."

The above section of The Code clearly makes four classes of persons for whom guardians may be appointed, namely, idiots, lunatics, inebriates and those who are incompetent from want of understanding to manage their own affairs by reason of the excessive use of intoxicating drinks or other

cause.

An idiot or natural fool is one that has no understanding from his nativity. 1 Blk. Com., 302; Chitty on Contracts,

149.

A lunatic is one who has possessed reason, but through disease, grief or other cause has lost it. The term is especially applicable to one who has lucid intervals and may yet in contemplation of the law recover his reason. 1 Blk. Com., 304; 16 Am. & Eng. Enc., p. 562.

An inebriate is defined in Section 1671 of The Code to be "a person who habitually, whether continuously or periodically, indulges in the use of intoxicating liquors to such an extent as to stupify his mind and to render him incompetent to transact ordinary business with safety to his estate." There is a proviso that the habit of indulging in such use of strong drink shall have been, at the time of the inquisition, of at least one year's standing.

The fourth class of persons mentioned in section 1670 of The Code must really be embraced under the head of lunatics, that is, their want of understanding in order to render them incompetent to manage their own affairs must be complete. As in lunacy there must be a total privation of under