such other proceedings as the nature of the case may require (q).

It seems to have formerly been a rule, that the lunatic should not join with his committee in a suit, to be relieved against any act done during his lunacy (r), though he might be a party to a suit, to enforce performance of an agreement entered into prior to the lunacy (s), and this was because it was thought, that it would subvert the old principle of law, which forbids a man's stultifying himself (t). But after the lunatic is so found by inquisition, his committee may avoid his acts retrospectively, from the time he is found to have been non compos, as has been often done (u); but the committee must file a bill for the purpose (v). In a case where a bill was brought by a lunatic and his committee, to set aside a settlement which had been obtained from him by the defendant, before the issuing of the commission of lunacy, but subsequently to the time wherein he was found to have been a lunatic-the defendant demurred, expressly upon the ground that it was against a known maxim of law, that any person should be admitted to stultify himself: but the Court overruled the demurrer, and said, that rule was to be understood of acts done by the lunatic to the prejudice of others, that he should not be admitted to excuse himself on pretence of lunacy; but not as to acts done by him to the prejudice of himself. Besides, here the committee is likewise plaintiff, and the several charges of lunacy are made by him on behalf of the lunatic; and it has been always held, that the defendant must answer in that case, although the settlement was not unreasonable in itself (w).

The Court of Chancery will not, as a matter of course, interfere to set aside contracts entered into and completed by a lunatic, without any fraud in the parties dealing with him, even where they are overreached by an inquisition taken in lunacy, and may be void at law; but the interfer

(q) In re Webb, 7 July, 1828; In re Sir T. Smith, 14 November, 1827; In re Frank, 31st Jan. 1828.

(r) Wy. Pr. Reg. 272.

(8) Attorney-General v. Woolrich, 1 Ch. Cas. 153; Vin. Abr. tit. Luna

tic, (C. 2).

(t) See ante, p. 409.

(u) See ante, Chap. vi. (v) Ex parte Roberts, 3 Atk. 6. (w) Ridler v. Ridler, 1 Eq. Cas. Abr. 279; 1 Ch. Cas. 19.

ence of the Court will depend very much upon the circumstances of each particular case; and where it is impossible to exercise the jurisdiction in favour of the lunatic, so as to do justice to the other party, the Court will refuse relief, and leave the lunatic to his remedy (if any) at law.

Thus, where a party, in May, 1800, attended a public sale by auction of building materials, which continued three days, and purchased several lots, to the amount in the whole of 39231. 11s. 6d. Immediately after the conclusion of the sale he sold stock, paid considerable sums to the defendant on account, and gave him promissory notes, and a warrant of attorney to confess judgment, for other sums. He after

wards resold, at a loss, part of the materials so purchased. He had been afflicted with an inflammatory fever in 1796; and upon the 25th of August, 1800, a commission of lunacy issued against him, under which he was found a lunatic, from the 1st May, 1797, without lucid intervals. A traverse of the inquisition was taken by the defendant upon the trial, of which a verdict was found for the Crown. A bill was afterwards filed by the lunatic and his committee, praying that the defendant might be decreed to repay to the committee the money paid by the lunatic; that the purchases of the several lots made by the lunatic might be set aside; the notes given by him in payment of part of the purchase money delivered up; and for an injunction. Much contradictory evidence was produced as to the state of mind of the lunatic, and his conduct at the sale; which, on one side, was represented to be most extravagant, in bidding far beyond the value &c., and, on the other side, as directly the reverse. The Master of the Rolls, Sir William Grant, said " it is impossible to give the plaintiff the relief he prays, or any relief, except upon the ground that he was a lunatic at the time the contract took place. The establishment of that fact is indispensably necessary. That fact is controverted by the defendant. But it is also contended, that even admitting it, there is no equity. As to that fact, upon the evidence, I should feel great doubt, and would have it tried. But it is said, it has been tried by the trial upon the traverse. It struck me at first, that there was nothing definite in

that, but that he was a lunatic at the time of the inquisition: it would have been more satisfactory, if the jury had found, in the terms of the issue tendered, that he was a lunatic on the day of the contract. The weight of evidence, as applied to the particular time of the purchase, is in favour of the defendant; and even if the evidence of insanity was clear, I must have held the lunatic to have enjoyed a lucid interval at that time upon the balance of the evidence. But, suppose him to be considered in strictness a lunatic at that time, without lucid intervals, the question is, how far the plaintiff, upon that supposition even, is entitled to the equitable interposition of this Court to restore him the possession of all the money he has paid in consequence of the contract. The ground taken is, first that whether the defendant did or did not know his situation, if the fact turns out that he was a lunatic, all his purchases are absolutely void, and all that followed upon them must be set aside; but, also, that the defendant was informed of the situation of this person; and therefore the conscience of the defendant is affected; that situation being, upon the last day of the sale, communicated to the defendant and the auctioneer. I do not believe the defendant gave credit to the information he received, and proceeded malá fide. Then it comes to the mere fact, that he was a lunatic. The question with reference to that is, how far, under all the circumstances, this Court will interfere to set aside the whole of the lunatic's transactions, supposing them void at law. That will depend very much upon the circumstances; and no general rule can be laid down upon it. With regard to purchases that have not been completed, and cases in which it is possible to replace the parties, there is no reason why this Court should not interfere to administer its ordinary equity; as it can do that in general in a much better way than a Court of law; even supposing that Court would consider the mere law of the case, in the same way as this Court would. But there may be other cases, in which the inconvenience would be so great that this Court would leave the party to law. The inconvenience of carrying back the finding is extremely great, if that is to be followed through all the legal consequences. Assuming it to be the legal con

In

sequence, that every act of the lunatic subsequent to that time is absolutely void, nothing can be more inconvenient than for this Court to give effect to that legal consequence; setting aside every dealing in the course of his trade; giving an account of all he lost; the parties who have dealt with him to take the chance of the transaction, being a losing one, and make it good; and the transaction being strictly void, this Court acting upon that, and, though the parties cannot be replaced, obliging them to refund, though producing the great injustice, that they cannot have that for which the money was paid, or cannot have it in the same manner. this case the defendant could not have it in the same manner. The money was paid, the transaction completed, the party suffered to deal with the property as his own, to sell it. If it sold to advantage, he or his family would have kept the profit, and the objection would not have been made; but now that it has turned out otherwise, not by circumstances to be imputed to the defendant, (for there is nothing upon the evidence to shew the loss was occasioned by an exorbitant price paid to him), a Court of equity is called upon to make the defendant refund; and to give to the one party all the money he has paid, and to the other, not what the property was worth, but what that property, under all the circumstances, produced to the lunatic. That would be most inequitable and unjust; and if this is the principle, I must act upon it in all cases, where the lunacy is carried back ten or twelve years.

"If the plaintiff is right, therefore, in saying all this is void at law, let him resort to law, and recover if he can. But there is no ground for a Court of equity to advance his remedy; when it is impossible to exercise the jurisdiction so as to afford any chance of doing justice to the other party. Where this Court does interfere, it endeavours to put the parties in the same situation; that is, where the contract is void. Here, if the defendant could be placed in malá fide, as having notice, that would be a distinct and different ground for the interference of a Court of equity. But, the simple ground, that the contract may have been void (and whether it was or was not I will not determine), the consequences are so extensive and so inconvenient, that I

upon

cannot think this Court ought to give the plaintiff the relief he prays." And the bill was accordingly dismissed, without costs (y).

An order, upon petition of the committee, although no bill has been filed, will be made to restrain tenants of a lunatic's estate from committing waste (≈).

A writ of ne exeat regno will be granted, upon an affidavit made by the committee of a lunatic on his behalf (a).

A bill will not lie in a lunatic's lifetime to perpetuate the testimony of witnesses to his will, made before his lunacy (b). For, in order to support a bill to perpetuate testimony, the plaintiff must have in contemplation of law a present interest, although it is immaterial how minute the interest may be; and how distant the possibility of its falling into possession. On the other hand, though the contingency may be ever so proximate and valuable, yet, if the party has not, by virtue of that, an estate, the Court does. not deal with him; and, therefore, although a lunatic is intestate, in the most hopeless state, under a moral and physical impossibility (though the law would not so regard it,) that he should ever recover, even if he was in articulo mortis, and the bill was filed at that instant by the heir-at-law, or by the next of kin, of the lunatic, they could not qualify themselves as having an interest in the subject of the suit (c). But they may enter into contracts with respect to their expectations and possibilities; the evidence upon which they may perpetuate (d).

Where a creditor, under a commission of bankruptcy, is deranged, and unable to superintend his business, the Court of Chancery, although no commission of lunacy has issued, will, upon petition, order another person to prove on his behalf, and to vote in the choice of assignees (e); and where a creditor is disabled, by age and imbecility of mind,

(y) Niell v. Morley, 9 Ves. 478— 482.

(c) Smith v. Attorney-General, cited 6 Ves. 269; Allan v. Allan, (z) In re Creagh, 1 Ball & Beatty, 15 Ves. 133; and see 2 Jac. & Walk. 108; ante, p. 348. 451; Mitf. Pl. 51-53, 4th ed.

(a) Stewart v. Graham, 19 Ves. 312.

(d) 6 Ves. 261.

(e) Ex parte Maltby, 1 Rose, B. C.

(b) Sackvill v. Ayleworth, 1 Vern. 387. 05; ante, p. 336.