Page:Federal Reporter, 1st Series, Volume 8.djvu/229

BPEIGG V. STDMP. • 215 �139, (1865,) a county judge is authorized to commit a person to an insane asylum, being "first satisfied by the oath of two reputable physicians that such person is of unsound mind, and unfit to be at large;" and even theu the party, "his or her busband or wife, or rel- ative to the third degree," may demand and have an inquisition of lunacy by a jury. �But admitting, what -we think very doubtful, that the order upon which Fulton was arrested and brought before the county judge, although in the form of the statute, -was void, as being in conflict with section 9, supra, of the constitution, concerning the issue of warrants, still the subsequent inquisition by the judge, and the order thereon committing Fulton to the asylum, are founded upon the oath of the physician who examined him and pronounced him insane. If, then, the validity of the subsequent appointment of a guardian and the sale by him of the lunatic's property depend upon the legality of the procedure in which Fulton. was declared insane, it is certaiuly sufi&cient if the inquisition and commitment were legal, even if the original arrest was otherwise. So long as the order of the county court committing Fulton to the asylum remained unreversed and in force, he could not have been discharged therefrom on habeas corpus on the ground that he was illegally restrained of his liberty, whatever might be thought of the legality of the order on which he was brought before the court. It follows that, when AUingham applied to be appointed guardian of Fulton, the latter was lawfully adjudged insane and committed to the asylum.; This application was made under sections 9 and 10 of the act of 1852, swjjra, and might have been made and heard without reference to the previous action of the court under the asylum act of 1862, in which case the question of Fultou's insanity would have been tried and determined by the county judge as an ordinary question of fact. But the application was made upon the assumption that the matter of Fulton's insanity was res judicata, and the order appointing the guardian so recites. But no particular objection is made to this order upon the ground that, in making it, the question of insanity was not considered an open and original one. The claim of the plaintiff is that all the proceedings as to the cus- tody and sanity of Fulton, and the management and disposition of his estate, depend for their validity upon the legality of the order of February 3, 1863, directing Fulton to be brought before it upon the charge of . insanity, and his arrest thereon. But, as we have seen, the order was probably well made, although upon information, noi; ��� �