1846. IN THE MAT TER OF WEBB, A SUPPOSED LUNATIC. Re Braithwaite. LORD ELDON.-In its nature a lunacy inquisition is an ex parte proceeding, and where no caveat has been entered on his behalf, notice to the supposed lunatic is not in strictness necessary.-Re Braithwaite, L. C. July, 1826. In its nature a lunacy inquisition is an ex parte proceeding, and where no caveat has been entered on his behalf, notice to the supposed lunatic is not in strictness necessary. Re Southcote. From a MS. in the author's possession, S.C. Amb. 109, 2 Ves. Senr. 401, and Coxe's MSS. have the lunatic before LORD HARDWICKE.-The commissioners and jury need not always have the lunatic before them.-Re Southcote, L. C. August, 1751. It is said, 2 Ves. Sen. 401, (see also Ambler, 110,) in argument, that there were formerly two forms of writs. The first was to the escheator, the principal point of which was to take care of The commisthe sioners and jury person; and therefore was the escheator required to go in need not always person and examine, but there was no production to the jury required. The other was to the sheriff, which was with a view principally to the right of the crown; and therefore he was not required to go in person as the escheator was. The first form of writs had not issued for a long time, but the commissions, which issued now, are formed according to the last set of writs, which did not require the going in person: though that was frequently supplied by a collateral order to be produced before the jury, but that was different from the commission. them. Lord Hardwicke said it was true that in all writs to the escheator, there was a direction that he should go to the party, but was not to found his return thereon, for he must have the jury beside. Whereas the writ to the sheriff in these instances, in Fitzherbert, Nat. Brev., [vol. 2, page 233, edit. of 1794,] and the Register, [Registrum Brevium, pages 266, 267,] did not desire the sheriff to go to the person, the reason of which distinction he could not find: nor did there seem that any good reason could be given for it. But whatever was the ground thereof, the commissions had put that out of the case, for the commissions direct not to go to the person but to make the inquiry. The ensuing extract from the first writ contained in the Registrum Brevium, pages 266 and 267, sufficiently illustrates Lord Hardwicke's words. It is one of the writs addressed to the escheator, and not to the sheriff.-Vobis mandamus quod ad ipsum I. in propria persona vestra accedatis, et ipsum viis et modis, quibus super statu suo melius poteritis informari, circumspecte examinetis. Et nihilominus per sacramentum proborum et legalium hominum de balliva vestra, per quos rei veritas melius sciri poterit, diligenter inquiras, si idem I. fatuus et idiota sit, sicut prædictum est, necne. Et si sit, tunc utrum à nativitate sua an ab alio tempore. Et si ab alio tempore: tunc à quo tempore et qualiter et quo modo, et si lucidis gaudeat intervallis. The following is the form of a commission in the nature of a writ de lunatico inquirendo. It is now addressed to the two commissioners [Masters] appointed by the Act 5 & 6 Vict. c. 84, [An Act to alter and amend the Practice and Course of Proceeding under Commissions, in the nature of Writs de Lunatico Inquirendo,] to whom the Lord Chancellor may join any fit and proper person or persons. The commission assigns the commissioners, some or one of them, to inquire by the oath of good and lawful men of our county of as well within liberties as without, by whom the truth of the matter may be better known whether A. B. is a lunatic, or enjoys lucid intervals, so that he is not sufficient for the government of himself, his manors, messuages, lands, tenements, goods and chattels ; and if so from what time, after what manner, and how? * * 1846. IN THE MAT or WEBB, A SUPPOSED LUNATIC. Lord Hardwicke said (Ambl. 111; see also 2 Vesey, Sen. 405), I cannot find one writ, directed to the escheator, to inquire of lunacy. The escheator was an officer for the Crown revenue, and in case of lunacy, where no profits go to the Crown [1 Black. Comm. 303], the writ was never directed to the escheator.-This is a mistake, as the foregoing extract, from the Registrum Brevium, shows. See also the first writ in Fitzherbert, Nat. Brev. vol. 2, page 233. Lord Hardwicke has given (2 Ves. Sen. 405; see also Amb. 111) this account of the disuse, in lunacy, of writs, and the introduction of commissions. The old way was by writs directed either to the escheator or the sheriff. The modern way, and for a long time, is by commissions in nature of these writs, and so it was called [a commission in the nature of] a writ de lunatico inquirendo. The ground of turning these writs into commissions was, that as it stood by law as to lands of aliens, or on forfeitures or guardianships, where the Crown was to have the custody, &c., Lord Hardwicke's ac count of the disuse in lunacy of writs, and tion of commis. sions. the introduc. 1846. IN THE MAT they might be by writ to the officer of the king, or to the commissioners; and as they might be to one or the other, and the TER OF WEBB, Commissions were more large, they fell into that. A SUPPOSED LUNATIC. Re Clements. Where there is a commission of lunacy, none but the alleged lunatic, or per LORD BROUGHAM-Where there is a commission of lunacy, none but the alleged lunatic, or persons acting on his behalf, can take part in the inquiry without the special permission of the Lord Chancellor.-Re Clements, L. C. July, 1831. sons acting on his behalf, can take part in the inquiry without the special permission of the Lord Chancellor. Re Humpleby. It is the duty of the committee of the estate, having learnt that the LORD LYNDHURST.-It is the duty of the committee of the estate, having learnt that the lunatic has made a will, to take immediate steps to have the same deposited with the Master.-Re Humpleby, L. C. June, 1829. lunatic has made a will, to take immediate steps to have the same deposited with the Master. V. C. MOGGRIDGE v. THOMAS. A defendant, who has not appeared to the bill, and whose time for appearances has not expired, may MOGGRIDGE v. THOMAS. An order for a special injunction had been obtained, upon an affidavit of personal service upon the defendant of the notice of motion for the injunction. The time for the defendant appearing to the bill not having expired, and the safely disregard defendant not having appeared, the notice of motion was given by leave of the Court: but the notice omitted to mention that such leave had been obtained. A motion was now made on the part of the defendant to discharge the order for the injunction upon the ground of irregularity. a notice of motion, in which it is not stated that the notice is served by leave of the Court. THE VICE-CHANCELLOR OF ENGLAND.-A defendant, who has not appeared to the bill, and whose time for appearance has not expired, may safely disregard a notice of motion, in which it is not stated that the notice is served by the leave of the Court. The order for the injunction is irregular and must be discharged with costs. Mr. Cooper, Mr. Bethell, Mr. Bilton, Mr. Harrison, were the counsel. See Hill v. Rimell, 8 Sim. 632; S. C. 2 Myl. & Cr. 641, and Jacklin v. Wilkins, 6 Beav. 607. 1847. MOGGRIDGE v. THOMAS. SIR JOHN LEACH.-A defendant not having appeared to the bill, and being as yet in no default, may object to a motion that notice of it has been served upon him without the previous leave of the Court.-Cook v. Cook, V. C. February, 1826. Cook v. Cook. A defendant not having appeared to the bill, and being as yet in no deof it has been fault, may object to a motion, that notice Westcott. instances which red, of notices of motion served, without the leave of the Court having been previously obtained, upon defendants who had not yet appeared, said by SIR JOHN LEACH.-The numerous instances, which have Fairfield v. recently occurred, of notices of motion served, without the leave of the Court having been previously obtained, upon defendants who have not yet appeared, show that the reasons of the rule requiring such leave are little understood; such a course abridges that reasonable time allowed by the practice for the defendant to determine what step he shall take-whom he shall consult on finding himself involved in an equity suit. It is obvious that it is for the Court, and not for the plaintiff, to judge whether the particular case in its nature be such, that this reasonable time ought to be thus abridged, by compelling a defendant to appear upon a notice of motion, before he can be compelled to appear to the bill. Again, until the defendant has appeared to the bill he has not submitted to the jurisdiction of the Court.-Fairfield v. Westcott, V. C. June, 1824. In Hill v. Rimell, 2 Myl. & Cr. 641, Lord Cottenham said that the reason why it was not competent for the plaintiff, without the special leave of the Court, to serve a notice of motion on a defendant before he has entered an appearance is, that as until appearance the defendant has not submitted to the jurisdiction, the Court would not authorise any proceeding by which he might be prejudiced, unless a special case were made to justify its immediate interference. It will probably occur to the student that this last reason is Sir John Leach to show that the reasons of the rele the rule requiring such leave were little understood. 1847. MOGGRIDGE v. equally applicable both where the time for entering the appearance has expired, and where it has not expired. Notwithstanding this last reason an alteration in the practice has been deemed expedient. Hill v. Rimell came before Lord Cottenham in November, 1837; now by the 3rd General Order of April, 1842, the plaintiff may, without special leave of the Court, serve any notice of motion, or other notice, or any petition, personally, or at the dwelling house or office of any defendant who, having been duly served with subpoena to appear to and answer the bill, shall not have caused an appearance to be entered [by his own clerk in court] at the time for that purpose limited by the General Orders of the Court.-Beav. Ord. 198. Since the Act of the 5 & 6 Vict. c. 103, [An Act for Abolishing certain Offices of the High Court of Chancery in England,] and the General Orders of the 26th October, 1842, consequential upon that Act-Solicitors-Parties acting in person-Beav. Ord. 212, the 3rd General Order of April, 1842, should be read as if the words in brackets were omitted. - Hewitt v.Price. The 3rd General Order of April, 1842, has rendered the case of Ramsbottom v. Freeman, 4 Beav. 145, inapplicable in practice. In that case the time within which the defendant ought to have entered his appearance had (it may be presumed, although it is not stated) expired. An application was made for liberty to serve a notice of motion for a receiver on the defendant personally for the next motion day. The Master of the Rolls said he could not give the leave asked, until he was satisfied that due diligence had been used by the plaintiff to compel an appearance. By the 3rd General Order of April, 1842, a plaintiff is at liberty, without special leave of the Court, to serve any notice of motion upon a defendant, who, being served with subpoena, has not entered an appearance in due time. There is no necessity imposed upon the plaintiff of satisfying the Court, that due diligence has been used by him to compel an appearance. SIR JOHN LEACH.-In all cases where the defendant has not appeared, there can be no regular service of a notice of motion fendant has not upon him, without the permission of the Court first obtained. where the de |