Aldrich

I dissent. I think petitioner is entitled to a determination upon the merits under his application to the superior court.

Temple, J., concurred in the dissent.

This is an original petition for a writ of mandate to he directed to the said respondents, commanding them “to proceed to take testimony, and try, hear, and determine a certain application of said George A. Aldrich, praying for a determination judicially that said applicant is of sound mind, capable of taking care of himself and his property, and for restoration to capacity.”

It appears from the affidavit, answer, and admissions of counsel that in the year 1888, upon proceedings regularly instituted under the provisions of the Political Code concerning insane persons, the said petitioner, Aldrich, ivas, by a judge of the superior court of the county of Alameda, regularly examined *141 and committed to the state insane asylum at hTapa as a person dangerously insane within the meaning of said provisions of ■the Political Code; and that at the time of the commencement of the proceedings in the superior court hereinafter mentioned said Aldrich was not actually confined in said asylum, but had been permitted to leave the same on his parole. It appears further that the father of said petitioner, who is now deceased, had devised certain property to certain trustees, to be held by them…