heirs, and assigns, within the meaning of the act; and he approved of one of the executors as a proper person to convey on behalf and in the name of the lunatic. The mortgagor then presented a petition, praying, that, upon the payment of the principal and interest due on the mortgage, the executor named might be appointed and ordered to convey the premises to the petitioner and his heirs. The executors were willing to receive their principal and interest, and the only question was, as to the costs of the proceedings and the petition-Lord Chancellor Lyndhurst said, the jurisdiction of the Court is limited to the person petitioning and to the person found to be of unsound mind, either by inquisition or by the Master under a reference made in pursuance of the statute, and the Court has no authority to make an order affecting a person who is neither a petitioner nor a person of unsound mind, unless he consents. The Court cannot order these executors to pay costs, it cannot order them to receive the principal and interest due to them; they are willing to be redeemed upon payment of their costs; but the mortgagor must take the boon upon the terms offered. In Ex parte Richards (y), the lunatic was the person beneficially entitled to the mortgage debt, and the Court, by virtue of its jurisdiction in lunacy, had full authority to deal with his interest according to its discretion. The only other interest which existed there, was that of the mortgagor; and he, by preferring his petition, gave the Court jurisdiction. So, in Ex parte Pearse (≈), the person of unsound mind was a trustee-first, for the grantee of an annuity, and then for the grantor; who having both concurred in a petition, Lord Eldon thought that the costs ought to be borne by them equally; but if the grantor had been the sole petitioner, the Court could have had no jurisdiction over the grantee, and could not have thrown upon him any portion of the costs. The Lord Chancellor ordered all the costs to be paid by the mortgagor, the petitioner (a).

By statute 11 Geo. 4 & 1 Will. 4, c. 60, s. 25, it is enacted, that the Lord Chancellor, intrusted as aforesaid, may

(y) Ante, p. 391. (z) Ante, p. 390.

(a) Ex parte Clay, In re Towers, 7th Aug. 1830.

order the costs and expenses of and relating to the petitions, orders, directions, conveyances, and transfers to be made in pursuance of that act, or any of them, to be paid and raised out of or from the land or stock, or the rents or dividends, in respect of which the same respectively shall be made, or in such other manner as the said Lord Chancellor shall think proper (b).

(b) See orders for payment of costs since this statute, ante, pp. 382, 384, 389, and the Appendix.

CHAPTER IX.

OF PROCEEDINGS AT LAW, BY AND AGAINST LUNATICS AND THEIR COMMITTEES.

SECTION I.

Of Actions by and on the behalf of Lunatics. IT was formerly held, that idiots, madmen, and such as were born deaf and dumb, were incapable of suing, on account of their want of reason and understanding; but actions can now be maintained in their names and prosecuted on their behalf (a). The committee of an idiot or lunatic being considered as a bailiff or servant, and having no interest, except for their benefit, cannot maintain an action on their behalf in his own name, but such action must be brought in the name of the non compos, whether it be an action of trespass, ejectment, covenant, or of any other kind (b).

If an idiot sue, it is said that he must appear in person; and any one who prays to be admitted as his friend may sue for him: so, if an action be brought against him, he must appear in his proper person, and any one who can make a better defence shall be admitted to defend for him: but if an idiot has been allowed, however irregularly, to plead by attorney, and the parties proceed to trial, the verdict and judgment will be binding upon him; but a lunatic, or one

(a) Co. Litt. 135. b.

(b) Drury v. Fitch, Hutt. 16; Cox v. Dawson, Noy, 27; Thorn v. Cow

ard, 2 Sid. 124; Fulcher v. Griffin,

Poph.140; Cook v. Darston, Brownl. & Goulds. 197; Knipe v. Palmer, 2 Wils. 130.

who becomes non compos mentis, must appear by guardian if he be within age, and by attorney if he be of full age (c).

It is the common practice, on the petition of the committee, to refer it to the Master to inquire whether it will be proper to commence an action on behalf of the lunatic, and, on his reporting in favour of a particular action, to direct the committee to commence it. Thus, an inquiry was directed to be made by the Master, whether proceedings ought to be instituted against a tenant for recovering compensation in damages for dilapidations which he had suffered of a messuage in his occupation belonging to the lunatic, in breach of the covenants contained in his lease (d). And in another case, an order was made, founded on the Master's report, that the committee of the lunatic's estate should be at liberty to bring actions of ejectment against such of the tenants of the estate mentioned in the report, of which the lunatic was seised as tenant in tail, as refused to attorn and pay rent to such committee (e).

It seems that a person may be held to bail upon the oath of the committee of a lunatic (f). And judgment was allowed to be entered on an old warrant of attorney, where the plaintiff, being a lunatic, did not swear that the money was unpaid, but another person did, who had received the interest upon the bond ever since the plaintiff had become lunatic (g).

It may be proper to observe in this place, that, where a man has been found a lunatic by inquisition in England, it will not enable the committee to sue for a debt owing to the lunatic in the Courts of Scotland, but the suit must be carried on there in the lunatic's own name; and that a curator of a lunatic's estate appointed in Scotland, cannot on that title maintain an action in England (h).

(c) Brook's Abr. tit. Idiot; 4 Rep. 124 b; Co. Litt. 135. b., and note by Harg.; Dennis v. Dennis, 2 Saund. Rep. 328; Dennis v. Phrasier, 2 Keble, 691, 752; Bac. Abr. title "Idiots and Lunatics" (G).

(e) In re Lewis, 16th June, 1829. (f) Stewart v. Graham, 19Ves.315. (g) Coppendale v. Sunderland, Barnes, 42.

(h) Morison v. Earl of Sutherland, 2 Vol. of Suppl. to Dict. of Deci

(d) In re Buckle, 13th Jan. 1830. sions, 199.

The writ of habeas corpus lies in all cases for inquiring into the cause of any person being deprived of his liberty; and therefore, where any person is confined as a lunatic, such writ may be obtained on proper affidavits, directing the person who has the custody of the alleged lunatic to bring him before the Court for examination as to the cause of his detention; but, if it appears by the affidavit of a physician or some competent person, that the party is actually a lunatic, and in such a state of mind as not to be fit to be taken out of the custody in which he has been placed, and more especially if a commission of lunacy is about to be issued to inquire of his lunacy, the Court will enlarge the time for the return of the writ according to the circumstances of the case (i). Before a writ of habeas corpus is granted in a case of this kind, a previous inspection by a medical man is sometimes directed (k).

Upon motion for a habeas corpus to bring up the body of a party who was confined in a lunatic asylum, the Court granted only a conditional rule; but ordered that a physi cian in the mean time, and at all reasonable times, should have free access to the alleged lunatic at such asylum, in the absence of the physician in whose care and custody he was. Upon shewing cause, it appeared that a commission of lunacy had issued against the party, upon which an inquisition was soon to be taken; and it not appearing satisfactorily from the affidavits that the party was free from derangement, the Court enlarged the time for shewing cause until the first day of the following term, in order that the fact of the party being a lunatic or not might be ascer tained under the commission (l).

The Court will refuse to grant liberty of access to, and inspection of, a lunatic, where the application comes from a party who had no pretence for demanding it (m).

If the party confined as a lunatic, upon being brought into Court, appears to be free from insanity, he ought to be set

(i) Rex v. Clarke, 3 Burr. 1362. (k) Rex v. Turlington, 2 Burr. 115; Rex v. Wright, Id. 1099; Rex v. Harty, cited 1 Smith & Batty, 82.

(1) Ex parte Carpenter, 1 Smith & Batty, 81.

(m) Rex v. Clarke, 3 Burr. 1363.