5. Where a person committed to an insane asylum is restored to reason, and the authorities refuse to discharge him, he may be enlarged on habeas corpus sued out of the chancery or common-law court under act of April 2d, 1898. P. L. 1898 p. 231.

On application for leave to traverse inquisition.

Mr. John W. Wescott, for the motion.

WALKER, V. C.

On October 17th, 1908, a commission in the nature of a writ de lunatic inquirendo was issued out of this court to inquire. into the lunacy of Percival A. Hannah, of the county of Salem. The inquisition was taken on November 2d and returned on November 7th, 1908, the subject, Percival A. Hannah, being found to be a lunatic and of unsound mind and that he did not enjoy lucid intervals, so that he was not capable of the government of himself, his lands, tenements, goods and chattels, and that he had been in the same state of lunacy for the space of one month then last past and upwards.

On December 15th, 1908, a decree was made confirming the proceedings and ordering the transmission of the record to the orphans court of the county of Salem.

And now, June, 1909, Norman H. Hannah, of Philadelphia, in the State of Pennsylvania, a son of Percival A. Hannah, the lunatic, petitions and shows that his father has since been and still is confined in the Cumberland County Insane Asylum, and avers that his lunacy was acute and that he has now so far recovered that his mental faculties are in healthy and normal condition, and his physical state such as to enable him to attend to his affairs, and he prays that his father may have leave to traverse the inquisition or that an issue may be awarded to try the fact of his lunacy.

By the common law no traverse of the inquisition was allowed, but right to traverse was first granted by statute in the time of Edward III. Shelf. Lun. 113. The statute of Edward never has become a part of the law of this state. Lindsley's Case, 46 N. J. Eq. (1 Dick.) 358, 364. With us a traverse will be allowed only upon the exercise of sound judicial discretion. Ibid.

By the English practice a lunatic might traverse the inquisition either in person or with the chancellor's permission by attorney. Shelf. Lun. 118. And where the lunatic was confined in prison for debt, and a petition to traverse had been presented, the lord chancellor ordered a habeas corpus to bring the lunatic before the chancellor at the sitting of the court two days afterwards. Ibid. And the party may apply either in person to the chancellor to be inspected or his friends may sue out a writ returnable in chancery for that purpose. Ibid. 119.

In the matter of Heli, a lunatic, 3 Atk. 635, Lord Chancellor Hardwicke had before him the question whether a person could traverse an inquisition of lunacy without bringing the lunatic in propria persona before the court, and he observed that as to an inquisition de idiota, the subject may in person or by his friends come into chancery and show the matter and pray that he may be examined before the chancellor, and if, upon examination, he be found no idiot, then the inquisition shall be taken as void. He held that the same practice obtained with reference to lunacy.

In Covenhowen's Case, 1 N. J. Eq. (Saxt.) 19, Chancellor Vroom said (at p. 21): "It is clear that a stranger has no right to interfere in a proceeding of this nature. He can neither sue out a commission, nor can he make himself a party to it by any application he may make to this court. I take it to be equally clear, that when a person has actual interests, either equitable or legal, which are affected by the inquisition, he may apply to this court for relief." The chancellor was dealing with the case of one who had acted as attorney in fact for the lunatic, and who alleged that by reason of the finding of the jury he was greatly. endangered in the matters transacted by him as attorney. The chancellor considered that the attorney's petition should be dismissed, but remarked (at p. 23): "Taking all cases together, it is fairly to be inferred, as I think that applications on the part of third persons, in matters of this nature, are not to be encouraged, yet that they will be listened to and granted when actual bona fide interests and rights are endangered." The petitioner for this traverse is certainly a stranger to the proceedings, but, as the son of the subject of the inquisition, he has an actual bona fide interest, filial and sentimental rather than substantial,

though it may be, to have the question of his father's lunacy tried out.

It would be an anomaly, indeed, if children could not intervene to protect parents declared to be lunatics in these proceedings on inquisition.

But, assuming the verity of the allegations in the petition under consideration, still, the subject of the inquest is not entitled to traverse the inquisition. That remedy is available only on an allegation that lunacy has been untruly found. Shelf. Lun. 113, 114. Where a party is aggrieved by the finding of an inquisition of lunacy, the proper procedure is by a direct appeal to the court by means of a traverse. 10 Encycl. Pl. & Pr. 1202. As the petition does not deny that lunacy was properly found, but, on the contrary, admits the insanity of the subject at the time of office found by the assertion that the lunacy was acute and that the subject has now recovered, no case for a traverse is presented.

On this application it is not shown whether a guardian was appointed for the lunatic by the orphans court to which the proceedings were transmitted according to the statute, and the application is not one in form to supersede the inquisition under our practice, in which cases it is the usual course to refer the matter to a master to take proofs as to the state of mind of the petitioner, and to report the proofs with his opinion thereon. In re Rogers, 5 N. J. Eq. (1 Hal. Ch.) 46; In re Price, 8 N. J. Eq. (4 Hal. Ch.) 533; In re Weis, 16 N. J. Eq. (1 C. E. Gr.) 318; In re Ellis, 62 Atl. Rep. 702.

If, as alleged in the petition, the subject has now recovered from his lunacy, he is entitled to be liberated under the statute. Our act concerning the commitment of insane persons to hospitals provides that such persons shall be confined therein until restored to reason or removed or discharged according to law. P. L. 1898 p. 220 (bottom of p. 221); amended, P. L. 1906 pp. 679, 681.

If Mr. Hannah has been restored to reason and the authorities of the institution in which he is confined refuse to discharge him, he may be enlarged on habeas corpus, and the proceedings may

be had before the judge of a common law court, or this court. P. L. 1898 p. 231; In re Lee, 55 Atl. Rep. 107.

Unless the petitioner chooses to pursue the remedy by habeas corpus, an application to supersede the inquisition upon the ground of the restoration to sanity of the subject of the inquest will be entertained. The application for a traverse must be denied.

ALBERT SERVIS

V.

JOHN H. DORN et ux., et al.

[Decided July 12th, 1909.]

1. Surplus money arising upon a sale of land under a decree of foreclosure stands in the place of the land itself in respect to liens upon or vested rights therein.

2. When husband and wife hold lands by an estate in entirety, the wife, during the joint lives of herself and husband, is entitled to her share of the usufruct of the land, and the right of survivorship in the fee still exists as at common law.

3. Judgments recovered against a husband, who. together with his wife, owns land by an estate in entirety, are liens against the husband's interest and are enforceable against the land if he survives his wife, but are subject to be defeated as to that land in the event of her surviving him.

4. Surplus money, arising upon a sale of land owned by husband and wife by an estate in entirety, will not be paid to the husband and wife upon their petition when there are judgments against either one of them. but will be held under the control of the court to wait the severance of the estate by the death of one of the parties, when the fund will or will not become available in satisfaction of the judgments, accordingly as the judgment debtor survives or dies before the other tenant by entirety.

On petition for surplus money.

Servis v. Dorn.

76 Eq.

Mr. Warren R. Schenck, for the petitioners.

Mr. John A. Coan, for the South River Brick Company.

Mr. George S. Silzer, for August Splatter.

WALKER, V. C.

The defendants John H. Dorn and Rosie Dorn, his wife, were the owners of an estate by the entirety in the fee to the mortgaged premises sold in this cause. By the report of the master in the foreclosure proceedings it was certified that the defendant the South River Brick Company had obtained a judgment against the defendant John H. Dorn for principal, interest and costs, amounting to $90.12, and that the defendant August Splatter had obtained a judgment against the defendant John H. Dorn for principal, interest and costs, amounting to $24.78, in the order of priority just mentioned, but that the said two judg ments are not at the present time liens upon said mortgaged premises, inasmuch as the said John H. Dorn and Rosie Dorn, his wife, the owners thereof, are seized of said lands and premises by an estate in entirety.

By the final decree it was adjudged that the master's report and all the matters and things therein contained do stand ratified and confirmed, and that there was due to the complainant on his mortgages the sum of $1,041.09, and to the South River Brick Company on its judgment against John H. Dorn the sum above mentioned, and to the defendant August Splatter, on his judgment, the sum above mentioned; and it was further adjudged that the mortgages of the complainant are first in priority of lien over the respective judgments of the defendant South River Brick Company and August Splatter, and are entitled to be first paid, and that so much of the mortgaged premises as necessary should be sold to pay and satisfy, in the first place, the amount due the complainant with interest and costs, and that a writ of fieri facias issue for the sale of the mortgaged premises, and that out of the money arising from such sale the sheriff, in the first place, pay to the complainant his debt, interest and costs, and in case more money should be raised by the sale than shall