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If persons

ordinary transactions of life, but, on some particular subjects, suffer under an aberration from sound reason. of this description make an application for credit to a tradesman, who is not aware of their infirmity on some particular points, and he bona fide supplies them with goods, which are suitable to their state and degree, it would be most unjust, that his claim in a Court of law should be defeated by the fact that a commission of lunacy had been awarded, and his debtor found, on inquest, to be insane. There is no suggestion that the plaintiffs have not bond fide given the defendant credit. Exhibiting about him no appearance of mental incapacity, he goes to the plaintiff's house and orders carriages, which are afterwards used by him. They are suitable to his condition and degree in life, and such as would have been supplied by other persons, if not by the plaintiffs. Under these circumstances, law and justice require that the plaintiffs should be allowed to maintain an action against the lunatic. If the friends and relations of such a person are satisfied that he is incapable of conducting his own affairs, it is competent for them to adopt such measures as shall prevent him from exposure to imposition: but an imposition would be practised upon the plaintiffs, if, under the circumstances of this particular case, the plea of lunacy could prevail” (r).

The relations of a party who has been found a lunatic by inquisition, will not be allowed to set up his lunacy as a defence to an action, unless it be shewn that he has been imposed upon, in consequence of his mental imbecility. Thus, in an action of assumpsit for work and labour and goods sold and delivered, where the defendant was charged as a member of an institution called the Athenaion, of which he acted as president during the time the demand was accruing, and had been subsequently declared a lunatic under an inquisition, from a period before that time; and the defence, which was conducted by his relations, was, that he was of unsound mind at the time the goods were supplied, and therefore incapable of contracting. At that time, his rela

(r) Bagster v. Earl of Portsmouth, 7 Dowl. & Ryl. 617, 618; S. C. 2 Carr. & Payne, 178.

tions had not interfered, but had allowed him to conduct his affairs as usual, and no facts were stated to shew that the plaintiff was aware of the defendant's malady, or had in any way been guilty of fraud. Lord Tenterden said, that he was not unwilling to receive the evidence offered; he thought, however, the defence would not avail, unless it was shewn that the plaintiff imposed on the defendant. The old cases went the length of saying, that a party should in no case be allowed to set up his own insanity. That was too general a rule, if it could be shewn that any means had been used to impose upon a person of weak or unsound mind, that, in such a case as this, as in all other cases of fraud, was an answer (s). And in a case where an action was brought for goods sold and delivered and money lent, and it was proved that, at the time of the transaction in question, the defendant was manifestly insane, and that fraudulent advantage had been taken by the plaintiff—Chief Justice Best left it to the jury to say, whether the plaintiff, at the time he dealt with the defendant, knew of his insanity; if he did, it was a gross fraud, and the jury ought to find for the defendant; as they accordingly did (t). So, where a person who was perfectly imbecile in mind was imposed upon, and induced to sign a promissory note drawn in an unusual form, such note was held bad, even in the hands of an indorsee (u)-Lord Tenterden, C. J. told the jury, "That the question was, whether the defendant, at the time he put his name to the note, which was drawn in an unusual form, was or was not conscious of what he was doing; for, if he was, there must be a verdict for the plaintiff; but should they be satisfied that he was not conscious of what he was doing, and that he was imposed upon, by reason of his imbecility of mind, they ought to find for the defendant. It was a hard case either way, but it was very important that Courts of justice should afford protection to those individuals who were unfortunately unable to be their own guardians."

(s) Browne v. Joddrell, 1 Moody Malk. N. P. C. 105; S. C. 3 Carr. yne, 30.

Levy v. Barker, 1 Moody &

Malk 106, note (b).

(u) Sentence v. Poole, 3 Carr. & Payne, 1.

CHAPTER X.

OF PROCEEDINGS IN COURTS OF EQUITY BY AND AGAINST LUNATICS AND THEIR COMMITTEES.

SECTION I.

Of Proceedings in Equity by Lunatics and their
Committees.

IDIOTS and lunatics must sue in Courts of equity by the committees of their estates, and, in such suits, the committees, as well as the lunatic, should be parties; and if the lunatic is not named a party in a bill or information on his behalf, it is good cause of demurrer (a). Sometimes, indeed, informations have been exhibited by the Attorney-General on behalf both of idiots and lunatics, considering them as under the peculiar protection of the Crown (b), and particularly, if the interest of the committee has clashed with that of the lunatic (c). But, in such cases, a proper relator ought to be named; and, in a case where an information was filed at the relation of a lunatic, the Court directed, that all further proceedings should be suspended until a proper person should be named as a relator, who might be responsible to the defendants for the costs of the suit, in case the information should be dismissed (d).

(a) 1 Cas. in Ch. 19, 153; 1 Eq. Cas. Abr. 279; Wy. Pr. Reg. 272.

(b) Attorney-General v. Parkhurst, 1 Cas. in Ch. 112; AttorneyGeneral v. Woolrich, Id. 153.

(c) Attorney-General v. Parnther,

3 Br. C. C. 440; S. C. 2 Dick. 748. See ante, pp. 222, 223.

(d) Attorney-General at relation of G. Vaughan, a lunatic, v. Tyler and Others, 2 Eden, 230. See 1 Dick. 378.

Where a person found a lunatic has had no committee, such an information has been filed, and the Court has proceeded to give directions for the care of the property of the lunatic, and for proper proceedings to obtain the appointment of a committee (e).

Persons incapable of acting for themselves, though not idiots or lunatics, or infants, have been permitted to sue by their next friend, without the intervention of the AttorneyGeneral (ƒ).

In a case where a bill was filed by a son to avoid a lease granted by his father, on the ground that the latter was a lunatic when it was granted, the Court would not relieve the plaintiff, because he had not made the Attorney-General a party, but ordered him to amend his bill if he thought fit (g).

If an idiot or a lunatic exhibiting a bill appears, upon the face of it, to be thus incapable of instituting a suit alone, and no next friend or committee is named in the bill, the defendant may demur; but if the incapacity does not appear upon the face of the bill, the defendant must take advantage of it by plea. This objection extends to the whole bill, and advantage may be taken of it, as well in the case of a bill of discovery merely, as in the case of a bill for relief. For the defendant, in a bill for a discovery only, being always entitled to costs after a full answer as a matter of course, would be materially injured by being compelled to answer a bill exhibited by persons whose property is not in their own disposal, and who are therefore incapable of paying the costs (h)-If a bill is filed in the name of an idiot or lunatic, so found by inquisition, the defendant may plead the inqui

(e) Attorney-General on behalf of Chancery, Decree 1st Dec. 1760. Maria Lepine, a lunatic, at the rela- Decree on supplemental bill, 4th tion of John Fox, and also Maria March, 1779. See Wartnaby v. Lepine, and Earl and Countess Wartnaby, 1 Jac. R. 379. Howe and Others, 26th March, 1793; 3rd April, 1794.

(f) Eliz. Liney, a person deaf and dumb, by her next friend, against Thomas Witherby and Others, In

(g) Leigh v. Wood, Rep. temp. Finch, 135.

(h) Mitf. Pl. 153, 4th ed. See Wartnaby v. Wartnaby, 1 Jac. R. 377.

sition in abatement of the suit (i). A bill for tithes by the bishop and sequestrator during the incapacity of the incumbent, was dismissed, because neither the incumbent nor his committee was party (k).

It seems that a bill may be ordered to be taken off the file, if filed in the name of a plaintiff who is in a state of mental incapacity; but where a suit has been instituted by the direction of the plaintiff when in a sound state of mind, the proceedings will not be stayed on the ground of the plaintiff's having subsequently become imbecile (7). If a plaintiff become a lunatic, a supplemental bill may be filed in the joint names of the lunatic and of the committee of his estate, in order to answer the same purpose as a bill of revivor, in procuring the benefit of the former proceedings (m).

It was held, that a charge in a bill " that a person was of a weak and feeble understanding, approaching almost to idiocy," was an allegation sufficiently precise, (no demurrer having been taken), to put in issue that such power was of nonsane memory, but that such allegation would not have been sufficient on a plea, nor on a bill if demurred to (n). But the Court will not retain a bill to examine the point of lunacy only (o).

The committee ought, previously to instituting a suit on behalf of a lunatic, to obtain the sanction of the Lord Chancellor, and therefore it is usually referred to the Master, to inquire into the nature of the right or interest of the lunatic in the property claimed, and to certify whether it will be proper, that any proceedings should be adopted for recovering it, or for ascertaining the rights of the lunatic (p). If the Master reports, that it will be proper for the committee to institute a suit, he will be ordered, in the name and on the behalf of the lunatic, to file a bill in Chancery, or to take

(i) Mitf. Pl. 229, 4th ed.

(k) Bishop of London v. Nicholls, Bunb. 141.

(1) Wartnaby v. Wartnaby, 1 Jac. R. 377.

(m) See Brown v. Clarke, 3 Wood. Lect. 378, note, where the form of

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such a bill is stated.

(n) Carew v. Johnstone, 2 Sch. & Lef. 280.

(0) Bonner v. Thwaits, Toth. 130. See ante, p. 262.

(p) In re Reynolds, 3 April, 1827

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