but had not been found to be so by inquisition, died, seised of a small freehold estate, but not possessed of any personal property. His stepfather had received the rents of the estate, and had expended more than the amount of them in maintaining the lunatic; he had also paid the lunatic's funeral expenses. It was held that he was not entitled, under 3 & 4 W. 4. c. 104., to be paid either the surplus expenditure, or the amount of the funeral expenses out of the lunatic's freehold estate. Under the 1 W. 4. c. 65. (a), the Lord Chancellor has power to sell or charge the real estates of a lunatic, for the payment of his debts or engagements, or the costs of obtaining the commission of lunacy; but the powers are expressly limited. (b) That power has not been exercised, and upon the death of the lunatic, the Lord Chancellor had no longer the power to charge the estate, which then became the estate of the heir, and was not the estate of the lunatic. Mr. Pemberton, Mr. G. Turner, and Mr. Willcock, in support of the bill. In the case of a lunatic the law raises a contract, by implication, for necessaries, in the same way as it does in the case of an infant, and, as against a husband, for necessaries supplied to his wife. Manby v. Scott. (c) Baxter v. Lord Portsmouth (d), Wentworth v. Tubb. (e) Lord Brougham con In Howard v. Lord Digby (g), (a) Sect. 28. (d) 5 B. & C. 170. ship, (e) 1 Y. & C. (Ch. Ca.) 171.; affirmed by the Lord Chancellor, Nov. 11. 1842. (g) 2 Cl. & Fin. 654. 1842. WILLIAMS v. WENTWORTH. 1842. WILLIAMS V. ship, after stating the facts of Lord Portsmouth's case, said, "The practice is the same in Chancery on matters of lunacy. Nothing is more common than for the ChanWENTWORTH. cellor to confirm a Master's report making allowances to A. B. for monies paid for the use of the lunatic- to C. D. for having maintained the lunatic; to E. F. for having clothed the lunatic. Upon what ground are all these allowances made? Not from kindness, not from charity, not for the convenience of the parties, but because they are debts; because, in the eye of that Court, be it a court of law or a court of equity, or the Chancellor sitting in lunacy, they are valid debts incurred by the insane person, and are discharged by the justice of the Court." In Carter v. Beard, the Vice-Chancellor of England conceived that the expenditure by the lunatic's stepfather beyond the rents, for the maintenance of the lunatic, "was an act of bounty," and that the funeral expenses were "not a debt contracted by the lunatic;" in fact, that they could not constitute a debt of the deceased party, as they were not due at his death. The words "simple contract" comprise an implied contract as well as any other. The personal estate of the lunatic would formerly have been liable to this demand, and now, by the statute, the real estate is equally liable. They also cited Brown v. Joddrell (a), Dane v. Lady Kirkwall (b), The Earl of Bath v. The Earl of Bradford. (c) Mr. (a) 3 Car. & P. 30. (c) 2 Ves. sen. 587, Mr. Kindersley, in reply. The MASTER of the ROLLS. I will consider this case. The MASTER of the ROLLS. It was argued in this case, that however beneficial to the lunatic, the expenditure may have been, yet, as the lunatic was incapable of contracting, no debt could be constituted; but I am of opinion, that in the case of money expended for the necessary protection of the person and estate of the lunatic, the law will raise an implied contract, and give a valid demand or debt, against the lunatic or his estate, and that under the circumstances of this case, a debt was constituted, and that payment of it may be obtained out of the real estate, if the personal estate be insufficient. Any other conclusion would, as it appears to me, be extremely dangerous, as well as contrary to the principles upon which several cases have been decided. That which is necessary for the protection of the person and estate of the lunatic, may well be subject to question and consideration; but when a demand is made in respect of a necessary of that kind, I do not see how it is to be distinguished, in principle, from a demand arising in respect of the supply of food and clothing. A debt is constituted by reason of a contract, which, in such cases, the law will supply, and it rests, as I conceive, upon a far better foundation than the rule which has sometimes been referred to, that a man shall not be allowed to stultify himself. Overrule the demurrer. 1842. WILLIAMS v. WENTWORTH. August 1. 1842. July 22. Where a suit abates after a demurrer has been filed, but before it has been heard, the Plaintiff and those representing him may file a bill of re vivor and supplement for the purpose of having the demurrer dis posed of; but the equity of the original bill being challenged by the demurrer, the Plaintiff in the second bill is not at liberty to claim the same or addi- the purpose The 34th of the general THE BAMPTON v. BIRCHALL. HE demurrer to the Plaintiff's previous bill having been allowed (a), the Plaintiff, in June 1842, filed a new bill. It stated that on the 14th of May 1832 an original bill was filed by William Blackburn, as the assignee, under an act for the relief of insolvent debtors, of Thomas Standish otherwise Stanley, and representing that Sir Frank Standish, on the 12th of May 1812, died seised of real estates intestate and without issue, leaving Thomas Standish or Stanley his heir at law, but that on the death of Sir Frank Standish, Frank Hall Standish took possession of the estates without having any title thereto, and that the Plaintiff had commenced an action of ejectment to recover possession of the estates, but that there were outstanding terms and incumbrances, which Frank Hall Standish intended to set up as a bar to the action; and that the bill prayed, that he might be restrained from so doing, and that all impediments to the fair trial of the action might be removed, and for further relief. That to this bill a general demurrer for want of equity had been put in, but had never been disposed of. That eight years after the bill was filed, namely, in December 1840, Frank Hall Standish died, and that the Defendants by virtue of some pretended will of the said F. H. Standish, "by which they pretended they had become the devisees in fee, or legal personal orders of August 1841 (a) Antè, p. 67. does not apply to a cause which became abated before those orders came into operation. personal representatives of the said F. H. Standish” entered into possession of the estates without having any title thereto. That the insolvent died in July 1836, leaving, as this bill alleged, James Standish his heir and the heir of Sir Frank Standish. That the Plaintiff Blackburn died in March 1841, and soon after his death the present Plaintiff was appointed assignee of the insolvent's estates: and that in this way all the rights and interests of the Plaintiff in the original bill had devolved upon the Plaintiff to the present bill; and that all the rights and interests of Frank Hall Standish, the Defendant to the original bill, had devolved upon the Defendants to this bill, who were entitled under the will of Frank Hall Standish. The present bill also alleged the continued existence of outstanding terms of years, and that certain mortgages and leases were subsisting: - that some satisfied terms had become vested in the Defendants, and that some of the mortgages or incumbrances were vested in Frank Hall Standish at the time of his death, and had since become vested in the Defendants, and that others were vested in other persons; that the action brought against Frank Hall Standish by the original Plaintiff had become wholly abated, and that the Plaintiff had commenced a new action against the Defendants or their tenants, and that the Defendants threatened and intended to set up the outstanding terms, mortgages, &c. as a defence; that the Plaintiff was under the circumstances unable to recover at law; that very little was due on the mortgage, and that it had been paid out of the rents. It charged that the original bill became abated by the death of Frank Hall, otherwise Frank Hall Standish, and that the Plaintiff as such assignee as aforesaid was entitled to have the same revived, and it charged that Frank Hall Standish and the Defendants 1842. BAMPTON v. BIRCHALL. |