In the matter of The Insanity Act of 1884 AND in the matter of J. R. NEWMAN-WILSON, A PERSON OF

UNSOUND MIND.

pointed out that a lunatic could not either by himself or a next friend commit a voluntary act of bankruptcy, but said that possibly if he had

insane person.

The court has power to sanction the presentation of a petition in insolvency or for the liquidation of the affairs of an insane person by his committee. APPLICATION by the committee of J. R. NewmanWilson, a person of unsound mind, for leave to present a petition for the liquidation of the affairs of the said J. R. Newman-Wilson, referred to the Full Court by Griffith, C.J.

Rutledge, in support of the application, cited re Cahen (10 Ch.D., 183), re Lee (23 Ch.D., 216), re James (12 Q.B.D., 332).

GRIFFITH, C.J.: This application really raises the question whether a person who has been declared a lunatic, and is therefore under the supervision of the court in its Lunacy Jurisdiction, can take advantage of the provisions of the Insolvency Act. The old law clearly was that a lunatic could not commit an act of bankruptcy, and could not by any act of his own bring himself under the provisions of the bankruptcy law, while he was insane. That law appears never to have been explicitly altered. It may be remarked, however, that at that time proceedings in bankruptcy were always hostile proceedings by the creditor against the bankrupt. Lunatics who were creditors were allowed to take advantage of the bankruptcy proceedings, which were considered civil actions for that purpose, and bankrupts who afterwards became lunatics were allowed to take proceedings in the bankruptcy to get their discharge. That being the old law, and it not having been altered in this colony by any statute, I was asked to give leave to the committee of this estate to present a petition for liquidation of the lunatic's estate. I asked for authority to show that the court had power to do so, and reference was made to several cases, of which three only have been referred to here. The first is that of ex parte Cahen (10 Ch. Div., 183). in which Lord Justice James, exercising jurisdiction in lunacy,

Lunacy might think it would be for his interest to do so, and might be able to act on his behalf that is, as I understand it, might allow his his committee to commit an act of bankruptcy for him. That was in 1879. In re Lee, in 1883, under the same law, leave was given to the committee to consent to an adjudication in bankruptcy against a lunatic. That is the first instance that I know of in which the committee of a lunatic was allowed to do anything which would have the effect of bringing his estate within the jurisdiction of the Court of Bankruptcy. Then in 1884 came the case of re James (12 Q.B.D., 332), in which an application was made by the committee of a lunatic for leave to file a declaration in the name of a lunatic of inability to pay debts, or to petition in his name against himself. That case came before a court consisting of Lord Selborne, Lord Coleridge, and Lord Justice Cotton. Lord Selborne is reported to have said that it appeared to be for the benefit of the lunatic that he should be made a bankrupt, and he was therefore of opinion that the court ought to make the order asked for. The other members of the court concurred, and the leave was given. The cases I have mentioned were referred to, as was also s. 148 of The Bankruptcy Act, 1883. That section expressly provides: "For all or any of the purposes of this Act a corporation may act by any of its officers authorised in that behalf under the seal of the corporation, a firm may act by any of its members, and a lunatic may act by his committee or curator bonis." It is hardly possible, however, to suppose that the court based its decision on that section, which apparently means that a lunatic may do, through his committee, such things as a corporation may do by its manager. Such a provision would have no application to a case of this sort. The only inference I can draw is that the court intended to adopt the suggestion thrown out by Lord Justice James in ex parte Cahen. I

think, therefore, that we ought to treat re James as a decision that the court has power to give leave to the committee of a lunatic to present a petition in insolvency or for liquidation. But I think that the matter should be referred back to the Judge of first instance to consider the propriety of granting leave to the committee to present a petition for the liquidation of the lunatic's affairs. HARDING, J. From the first I have felt myself considerably embarrassed by the question that has been raised here for decision-whether or no an insane person's estate can be rendered subject to the Insolvency Laws, on the initiatory of his committee. I am embarrassed by that, because the question was only argued by the person who desires to sustain that jurisdiction in the court. If this case is decided er parte, persons may arise who may have interests in disputing that question, and who would be entitled to litigate that question with the persons who now support the jurisdiction. Consequently, the court on a subsequent occasion will be embarrassed by a direct decision upon the existence or non-existence of the actual jurisdiction. I consider that it is unnecessary to hold that the estate of an insane person is subject to the Insolvency Laws for the purposes of the decision in this case, and I decline to take part in any decision of the kind. If it would be for the benefit of the estate that it should be placed under the Insolvency Laws, I think the court would give its sanction to the initiation of the proceedings to bring the estate under the Insolvency Laws, in the course of which proceedings the question of jurisdiction would be decided, and would be decided not in the absence of the parties having an interest to sustain the opposite view. I think it would be for the benefit of the estate that it should be placed in insolvency, and I think the court will give its sanction to the initiation of the proceedings to bring it in insolvency, without at all deciding what will be be the result of those proceedings.

REAL, J. The question for decision in this case is whether the court has jurisdiction to authorise the committee of the lunatic to consent

to or be a party to insolvency proceedings on behalf of the lunatic. That question is in substance whether the court can by its authority give a status to a lunatic to commit a voluntary act of bankruptcy by or through his committee. Until very recently the law appeared to be clear that a lunatic could not commit an act of bankruptcy, and by no process could he be supposed to do it. The cases show, however, that the lunacy of a man does not prevent or deprive other persons of their rights, which can be enforced against the property of a lunatic. Consequently, upon that principle, the creditors of a lunatic could always petition against a lunatic. The court in that case could also authorise the committee to protect the interests of the lunatic, and appear on such petition to prevent it being made, if the circumstances were not such that the law authorised the creditor to obtain that particular relief. Again, the cases show that when a person having been made insolvent, becomes a lunatic after the insolvency, the property having been disposed of in the manner provided by the Insolvency Act, he can, if his conduct and dealings have been such that his certificate ought to be granted, obtain it after mere formalities, such as the making of an affidavit, have been complied with. In one case it was held that the committee might make the affidavit, or, if the court thought proper, the certificate might be granted without the affidavit ; but the court held in all these cases that the committee could apply for such relief on behalf of the insolvent as the facts showed him to be entitled to if he were competent to make an application. That seems to me to be the great distinction between an application to make the lunatic insolvent, and an application to obtain his discharge. In one case it was held that unless an act of bankruptcy had been committed by him neither the creditors nor anyone else could make him insolvent. That, until recent years, was believed to be the law. The courts have always held that the mere fact of lunacy neither prevented others obtaining their relief against him, nor did it prevent him obtaining relief against others—

that was in cases in which committees were entitled to enforce their rights against debtors. We are now asked to decide or authorise a committee to commit an act of insolvency on his behalf. I would not have said more than that I agree with my brother judges, had it not been for the fact that my brother judges do not appear to fully agree upon what the effect of our decision would be. Mr. Justice Harding seems to think that by our giving leave to file a petition we do not, so to speak, find that we have authority to permit a committee to commit an act of insolvency on behalf of the lunatic. If we have not that authority, then I think that our decision should be that the court has not power to permit a petition to be filed against a lunatic, or to authorise a committee to commit an act of insolvency on behalf of a lunatic, because the committal of that act would amount to insolvency. It therefore becomes incumbent to consider whether we have that power. Now, in my view of the law, ascertained from the decisions antecedent to the decision in James' case, it is clear that the court has no such power-that no act which depends on the will of the insolvent can be performed when the insolvent is a lunatic. Lunacy does not deprive a person who has the right of relief against the lunatic of that right, and it does not deprive the lunatic of the relief which can be enforced by him against others, but lunacy would deprive the lunatic of the power of rendering himself liable to some law which is inoperative unless by an act done by his own will. The view of the law which I would be led to form by the cases antecedent to ex parte James is inconsistent with the statement of Lord Justice James, that it was possible that in a case in which a lunatic was so found by inquisition, the court in its jurisdiction over lunatics might take that course followed by the case in which Jessel and the other judges decided—that is, the case of Lee (23 Ch. Div.)-that a committee could consent to an adjudication. The only ground on which a committee could consent to an adjudication was that he could be a party to the lunatic's committing an

act of insolvency. The act of insolvency which must be the foundation of the petition or adjudication in any bankruptcy can only be assented to by the committee as having been committed since the declaration of the lunacy. The case of re James, in 1884, was a clear authority that the court could authorise a committee to commit an act of insolvency on behalf of the lunatic by consenting to an adjudication. In that case the court distinctly decided the very point being raised here that he could file a liquidation petition. These decisions are precisely in point, and following them I think we must come to the conclusion that the earlier cases were decided under a misconception of the law, and that the court has power to authorise the committee of a lunatic to file a liquidation petition against the lunatic. The difficulty which presses on my brother Harding presses equally on me, but it only presses to this extent, that it might furnish a reason why the law would be more reasonable if it did not allow the court to give such relief. It also furnishes a reason-but we are not considering that—why, unless a very strong case is made, such relief should not be given, but I feel in deciding this question that the court has power to give the committee leave to file a petition. It necessarily follows that when that leave is granted it should not be futile. There is this, however, to be remembered: the Court of Appeal does not in an ex parte matter bind itself to its decision in the same way as if the matter has been argued both for and against. To that extent I feel that the decision should be limited.

GRIFFITH, C.J.: I desire to add, if I did not make myself sufficiently clear in the point that I entirely agree with my brother Real that our decision necessarily involves the result that when the court gives leave to the committee to present a petition, the leave so given is effective. The order will be that the matter be referred to the judge of first instance, with the intimation of our opinion that the court has power to sanction the presentation of the petition.

Solicitors: Foxton & Cardew.

MAY SITTINGS OF FULL COURT, TOWNSVILLE,

LEE GOW V. WILLIAMS, Ex parte WILLIAMS. Goldfields Act 1874 (38 Vic., No. 11), ss. 32, 67Jurisdiction-Small Debts Court-Sale of resi

dence area.

A Small Debts Court has jurisdiction to hear a complaint for the balance of money due on the sale of a residence area on a goldfield.

S. 32 of The Goldfields Act, 1874, does not confer exclusive jurisdiction on a Warden's Court in such a case. MOTION to make absolute an order nisi, granted by Cooper, J., on application of the defendant to quash a judgment of the Small Debts Court at Ravenswood, in favour of the plaintiff.

The action was for £17, balance of £26 purchase money due on sale of a house, ground, and appurtenances, the ground in question being a residence area on the Ravenswood goldfield. At the hearing the defendant admitted the debt, and the court gave judgment for the plaintiff.

The rule was granted on the ground that a Small Debts Court has no jurisdiction to hear and determine a claim for money due in respect of a residence area on a goldfield.

Beaumont, for the defendant, moved the rule absolute, and contended that the action should have been brought in the Warden's Court at Ravenswood, which court had exclusive jurisdiction in such matters. (The Goldfields Act, 1874, s. 32.) CHUBB, J., referred to s. 82, conferring on District Courts, holding sittings on goldfields, the jurisdiction of the Warden's Court.

Macnaughton, for the plaintiff, showed cause The Small Debts Court has a concurrent jurisdiction where the claim is a mere debt. The proviso to s. 32, when carefully examined, does not oust the jurisdiction of the Small Debts Court. (Small Debts Act of 1867, s. 2.) Subject to the exceptions in the section they have "power and authority to hear and determine in a summary way all actions whatsoever. . . . . for the recovery of any debt, demand, or damage," &c. By s. 9 of The Goldfields Act, 1874, a residence area is personalty; it is declared to be a "chattel interest."

COOPER, J. Plaintiff in this case sues defendant for balance of purchase money on sale of a residence area. It is contended that the Petty Debts Court has no jurisdiction to entertain such a complaint, because of the wording of s. 32 of The Goldfields Act of 1874. The wording of this section at first sight seems to indicate that no such claim as that which arises here, or is connected in any way with a residence area, could be entertained except in a Warden's Court; but a little further consideration of the whole section shows that this view is not correct. I think that any person who wishes to recover" any debt, demand, or damage, whether liquidated or unliquidated, to any amount not exceeding £30," may do so in the Petty Debts Court, whether a Warden's Court happens to be established in that district or not. I think that the rule should be discharged, with costs.

CHUBB, J.: In my opinion the Small Debts Court has jurisdiction in claims like these. The debt was admitted, and the warden has no peculiar jurisdiction to exercise to give effect to the judgment. By s. 67, a residence area (being land held under a business license) can be taken and sold under any execution from "The Supreme Court, District Court, Small Debts Court, or any other competent court," and the proper officer appointed to sell the same has "full power to give an effectual transfer of the interest sold by him.” S. 32 merely regulates the procedure on suits instituted in Wardens Courts in regard to the place where the hearing is to be had. It does not confer the exclusive jurisdiction contended for. Rule discharged, with costs.

Solicitors for the plaintiff: Roberts & Leu. Solicitors for the defendant: Daly & Beaumont.

HALL V. LEYSHON, WALKER, AND ROGERS, Ea parte E. HALL, BY HIS NEXT FRIEND, S. H. HALL.

Part ownership—19 Vic., 24 s., No. 10—Unlawful detinue of Goods-Notice of Claim.

An order will not be made under 19 Vic., No. 24, s. 10, against a person for wrongfully detaining goods in which he is a part owner, and there is no evidence

of his having parted with his interest to the persons complaining.

Notice of the claim may be given on behalf of the claimant.

MOTION to make absolute an order nisi granted by Chubb, J., on the application of the defendant to quash an order made by the Court of Petty Sessions, Charters Towers, against the defendant. A number of persons at Charters Towers voluntarily formed themselves into an unregistered musical society called "The Apollo Orchestra." It was stated at the bar that they had rules; these were not before the court. From fees paid to the orchestra for playing at entertainments, instruments to the value of £100 were acquired by purchase. The defendant was a member of the orchestra. One of the instruments was a piccolo. It had been first borrowed from one Perkins by the defendant, and while in the latter's possession it was purchased by the orchestra from Perkins for £15. The defendant always had possession and charge of it, and played it in the orchestra; and he had possession of it at the time of these proceedings. The defendant discontinued attending the orchestra meetings after the annual meeting in September, 1894. On 10th January, 1895, a deed vesting the property in the instruments in the respondents as trustees for the orchestra was executed by 10 out of the 14 members of the orchestra; the remaining four, among them the defendant, did not execute it. The deed recited that the 14 persons (including the defendant) mentioned therein had been for some time past members of the orchestra, and as such had acquired an interest in the musical instruments and other property of the orchestra. On the 9th March following, the solicitors for the respondents demanded from the defendant the delivery of the piccolo, and subsequently on the same day gave him notice of the demand. Proceedings were then taken under 19 Vic., No. 24, s. 10, and at the hearing the justices ordered the piccolo to be returned to the respondents forthwith.

The rule was granted on the following grounds :

1. Notice of the claim was not made by the person complaining.

2. No evidence of property in or possession of the piccolo by the respondents as against the appellant.

evidence shewed a co-ownership between the 3. No jurisdiction to make the order, as the appellant and the other members of the orchestra. Macnaughton, for the appellant, moved the rule absolute.

Jameson, for the respondents, showed cause. It was in evidence for the respondents that the appellant had ceased to be a member of the Society. [Cooper, J. But that did not divest him of his share in the property. Chubb, J.: The evidence only is that "he was formerly a member, that he left the orchestra taking the piccolo with him, and that he discontinued attending meetings after the annual meeting in September, 1894." Besides, the recital in the deed of 10th January, 1895, where you declare him to be a member, estops you up to that date. You do not show that he ceased to be a member after that date, even if that fact would help you.] There are rules- [Chubb, J.: Which are not before the court, even if of any assistance. There is another point. By what right can the respondents alone sue as trustees? Gray v. Pearson (L.R. 5, C.P. 568), and Erans v. Hooper (1 Q.B.D. 45), are against you.] Woollam (5 B. and A., 769), is in my favour. [Cooper, J.: No. That was an action on a bond which was held to be good at Common Law, as the statute did not avoid securities given to treasurers of friendly societies neglecting to register.]

Jones v.

Macnaughton was not called on to reply.

COOPER, J. In this case I am of opinion that Hall, at the date of deed, was part owner of the piccolo. It appears to me that he never lost any right in it. This being so, he could not be sued. This being the position, the magistrates were wrong in law, and their decision cannot be upheld. The rule must be made absolute, with costs.

CHUBB, J. The application for the rule in this case was made to me on behalf of an infant by