The first question we propose to examine, is, was the record of the orphans’ court of St. Clair, purporting to be an inquisition of lunacy, to ascertain if George L. Patrick was sane, or non compos mentis, evidence for any purpose ?
These proceedings purport to be had on the application of the friends of Patrick. The writ was issued, and the jury certified that he was incapable to transact business ; that he was liable to be imposed upon by designing persons; and that he was non compos mentis. This verdict was returned with the writ, and thereupon, a guardian was appointed, the defendant in error, to take charge of his property and person. It does not appear that George L. Patrick had any notice whatever, of the time, and place, of making this inquisition ; or that the jury saw him, or made any application, or effort to see him. It does not appear that he had any notice of the application to the court for the writ, or that he had any notice of the action of the court, on the return of the writ — r-but the proceedings were ex parte merely; and by the judgmentof the orphans’ court, the defendant in error is invested with the control of the property, and person of Patrick.
I think it is a fundamental principle of justice, essential to-the rights of every man, that he shall have notice of any judicial proceeding that is about to be had, for the purpose of divesting him of his property, or the control of it, that he may appear and show to them, who sit in judgment on his rights, that he has not lost them by the commission of a crime; nor should those rights be taken from him by reason of any misfortune. That he has the right to appear before the jury, and the court, and to show that ho is not insane, that he, and his property should not be put in charge of another is a self-evident truth, and is denied by no legal authority. [See 12 Ves. 444; Ex parte Cranmer, Stock on Lunacy, 100.] This being his right, to appear, and defend himself, the ques*827tion is, what effect is the law to give to a proceeding that has denied this right ?
In the case of Wait v. Maxwell, 5 Pickering, 219, this precise question came up, and the court held, that the proceeding of the court of probate, and the grant of letters of guardianship, were null and void, because the non compos had no notice of them. And in 14 Mass. R. 222, it was determined, that it was the right of an individual, against whom proceedings in the court of probate were taken, to appear and controvert the fact of insanity, and that an inquisition taken without notice, was void.
These authorities seem to be, in unison with the first principles of justice, and are not opposed by any authorities that have fallen under our observation. We therefore come to the conclusion, that the proceedings of the county court, in the nature of an inquisition, and determining said Patrick to be non compos mentis, are void; that they are not evidence for any purpose in the trial of the issues in this case, and should have been rejected, and not allowed to go to the jury.
This cause must be reversed for this error, and we will therefore lay down the rules of law, applicable to the evidence shown in the bill of exceptions, instead of examining each question seperately.
It is clearly the law, that in an action of detinue, the plaintiff must show title in himself, and an unlawful detainer by the defendant, consequently, if the bill of sale was obtained by fraud, or imposition, the plaintiff cannot recover; nor can he recover, if Patrick, was insane at the time of its execution, for in either event it would not give the plaintiff a title, and the defendant could show that the title to the slaves was still in Patrick, or if he be dead, in his representatives. [See 8 Porter, 314; 14 John. Rep. 128; 15 Ib. 207; 11 Wendell, 58.]
When it becomes necessary to prove an individual insane, the usual evidence is, his acts, declarations, and conduct, inconsistent with his previous charact er, and habits, and leading to the conclusion of an aberation of the mind. The jury are to draw their conclusion from those acts, declarations, and conduct, whether the party is sane or not; but the mere opin*828ion of the witnesses, whether the individual is sane, or insane, is not evidence. [5 Ala. Rep. 243.]
True, if the witnesses were medical rxien, acquainted with all the facts, they are permitted to give their opinion ; but the law limits the rule to medical men. [Stock on Lunacy, 43 ; 2 Phil. Ev. 759, note 290.]
A subscribing witness to a will, is permitted to give his opinion, as to the sanity, or insanity, of the testator , but this is an exception to the rule, established rather on authority, than on any reason — and seems to be too well established to be departed from; but this is the only exception to the. rule. That on the question of sanity, the witnesses must speak to facts, declarations, acts, and conduct of the party, conducing to prove insanity, and are not permitted to give their opinion, merely, that the party is sane, or insane.
Before we dismiss! his case, we will express our opinion of the practice that seems to be growing up, of permitting the whole evidence to go to the jury, and then for the judge, either in his charge, or before his final charge is given, to exclude, or take back from the jury, such portions of the evidence as is illegal. After he has informed the jury, that the testimony of a particular witness, or some parts of it, is illegal, or that what they have heard read from a particular paper, or some part of it is illegal, is he able to say, that he has obliterated from the mind of each juror the eifect or impression produced? May not the juror be unconsciously influenced by such impression, to some extent ?
The better practice, is, to pursue the well established rules, and when evidence is offered, and objected to, the court should then exclude it, or permit it to go to the jury. e
It is true, that a departure from this rule is frequently necessary, upon a question of the relevanby of the testimony. ’But then it is usual for the party offering it, to state to the court, that he intends proving some other fact, specifying what that fact is, which will connect it, and make the proof relevant. If he fail to do this — that is, to prove the connecting fact — the court should then reject the irrelevant proof. By this course of practice, we know that no impression is made on the mind of the jury by illegal evidence ; but under the practice adverted to, we do not, and in cases of doubt, *829this impression made by illegal proof, may determine the verdict, and if so, an injury will result, that may not be remedied.
Let the judgment be reversed, and the cause remanded.