And by the second section, The provisions of the act relating to a lunatic are declared to extend to and include any idiot or person of unsound mind, or incapable of managing his affairs, unless there be something in the subject or context repugnant to such construction.

It was formerly the practice of the court to refer it to a Master to consider and report whether it would be for the benefit of the lunatic to make a lease; and, if it would, the committee received directions for that purpose (z), the committee paying the expenses of the inquiry, to be allowed on passing his accounts; and the lessee, the expenses of the lease (a). But by a recent Act of Parliament (6), after noticing the expediency of altering and amending the practice and course of proceeding under commissions in the nature of writs de lunatico inquirendo, the Lord Chancellor (c) was empowered (d), to appoint two persons to be "The Commissioners in Lunacy" (e), and it was declared and enacted (ƒ) that it should be lawful for the Lord Chancellor to order and direct that any of the inquiries and matters connected with the persons and estates of lunatics usually referred to the Masters in ordinary of the High Court of Chancery, should be referred to such commissioners, or one of them. And the Lord Chancellor was empowered (g) from time to time to make such orders as to him should seem fit and proper for regulating the form and mode of proceeding before and by the said commissioners, and the practice in matters of lunacy. In pursuance whereof, Lord Lyndhurst, C., has ordered (h)

(z) Knipe v. Palmer, 2 Wils. 131. (a) Ex parte Prickett; Mre The Duchess of Norfolk, 3 Swanst. 130.

(b) 5 & 6 Vict c. 84.

(c) The words "Lord Chancellor " include the Lord Keeper or Lords Commissioners for the Custody of the Great Seal, or other the person or persons for the time being entrusted by virtue of the Queen's sign manual with the care and commitment of the custody of the persons and estates of

persons found idiot, lunatic, or of unsound mind; Sect. 17.

(d) Sect. 1.

(e) Now called "Masters in Lunacy," 8 & 9 Vict. c. 100, s. 2; and they are invested with all necessary powers of inquiry by sect. 96. (f) Sect. 3. (g) Sect. 7.

(h) See Orders of 27 Octr., 1842, No. 2. 3 Beav. lxix.

that all the inquiries and matters connected with the persons and estates of lunatics theretofore usually referred to the Masters in ordinary of the High Court of Chancery (except inquiries under or by virtue of the Act of 1 W. 4. c. 60 (i), and except where the Lord Chancellor shall from time to time otherwise specially direct), shall be hereafter referred to the Commissioners (now Masters) in lunacy for the time being. And (j) that the Commissioner (now Master) shall be at liberty, without special order, to receive any proposal or conduct any inquiry as to managing, setting, or letting the estate, or otherwise respecting the person or property of any lunatic, and may report thereon as he shall see fit; but that such report shall be submitted for confirmation as was then done with respect to such reports when made upon special reference.

It would appear, however, that the report will not always be adopted because no one objects to its confirmation. In a late case (k), decided before the passing of the act of 5 & 6 Vict. c. 84, the Master having reported that it was expedient to grant building leases for nine hundred and ninety-nine years of part of the lunatic's estate, the Lord Chancellor, on a petition to confirm the report, although no party opposed it, refused to make the order, and directed the Master to review his report.

Application was lately (1) made to the Lord Chancellor to sanction a lease by the committee of a lunatic tenant in tail for an absolute term of twenty-one years; and it was contended, that, as by the 24th section of 1 W. 4. c. 65, the Lord Chancellor might direct the committee to make such leases of the lands of the lunatic according to his interest therein, and the nature of the tenure of the estate, and for

(i) Entitled "An Act for amending the laws respecting conveyances and transfers of estates and funds vested in trustees and mortgagees; and for enabling Courts of equity to give effect to their decrees and orders in

certain cases."

(j) No. 13 of Orders, sup.

(k) Mre Starkie, 2 Russ. 197. (7) In the Matter of Starkie; Ex parte Clayton, 3 Myl. & K. 247.

such term of years, as he the Lord Chancellor should approve; and as by the act for the abolition of fines and recoveries (m) the tenant in tail in possession might grant leases for any term, the Lord Chancellor might authorise the committee to make the lease required, because such lease would then be "according to the interest" of the lunatic in his estate; but his Lordship was clearly of opinion that the act 3 & 4 W. 4. c. 74, did not empower him to permit the committee to make any lease which the Lord Chancellor on behalf of the lunatic tenant in tail could not have authorised prior to the passing of that act; that to make such an order as was prayed would in fact be to enable the committee to bar the estate tail pro tanto, which his Lordship considered not to be within the intent of the act; and he added, that, in his opinion, the object could only be accomplished by means of a private act of parliament, if the parties thought it worth while to go to that expense.

The clauses of the act of 11 Geo. 4. & 1 W. 4. c. 65, relating to the renewal of leases by or to persons of unsound mind will be noticed in a future page; though here it may be permitted to add, that a renewed lease must be taken in the name of the lunatic, if the original lease was so made; but if the demise was originally made to a trustee for him, the renewal may be taken in the committee's name (n).

The recent act (0) above referred to, for the regulation of the care and treatment of lunatics, has provided (p) that it shall be lawful for the Lord Chancellor from time to time to make orders for the appointment of a receiver, or otherwise, for the protection, care, and management, of the estate of the lunatic, and that such receiver shall have the same powers and authorities as a receiver of the estate of a lunatic found such by inquisition had when the act was passed.

(m) 3 & 4 W. 4. c. 74. s. 15. (n) Ex parte Jermyn, 3 Swanst. 131, n..

(0) 8 & 9 Vict. c. 100.

(p) Sect. 95.

111.-Weak and aged Persons.

The weakness of the lessor is not of itself a ground for annulling a lease granted by him (a). But, if obtained by fraudulent practices, the grant, even if valid at law, cannot be supported in equity (b). And, therefore, where A., a man poor and weak in his intellects, was prevailed on by B., his neighbour, to sign a paper, alleged to be an appointment of B. to be the receiver of the rent of a small estate belonging to A., and then let at 207. per annum on a lease almost expired, but which afterwards turned out to be an agreement for a lease of the estate to B., at only 147. per annum, and B. soon after obtained an actual lease from A. of the estate, for the term of 41 years, at the yearly rent of 147., in consideration of 58., for which a receipt was signed and witnessed, but no notice was taken of the agreement, it was held that the lease was void, being obtained by fraud and imposition (c).

Nor does old age, simply, incapacitate a person from granting a lease (d). The lady in the case quoted was nearly 75 years old. Fraud or imposition would, of course, defeat the lease in equity, if not at law; but the circumstance of age is not of itself a ground to presume imposition; for, as Mr. Justice Buller observed, we have seen the greatest abilities displayed at a greater age than 75.

(a) Gartside v. Isherwood, 1 Bro. C. C. 558, Appendix. And see White v. Small, 2 Ca. in Ch. 103. Willis v. Jernegan, 2 Atk. 251. Osmond v. Fitzroy, 3 P. Wms. 129; S. C. 2 Eq. Ca. Ab. 186, pl. 8. Griffin v. Deveuille, or De Veulle, Cox's note, 3 P. Wms. 130. 3 Woodd. Vin. Lect. Appendix, p. xvi. Smyth v. Smyth, 2 Madd. 75. 93.

Bridgeman v. Green, Wilm. 58.

(b) Ibid. White v. Small, 2 Ca, in Ch. 105. And see Portington v. Alexander, Com' Eglinton, 2 Vern. 189.

(c) Webb v. St. Lawrence, 5 Bro. P. C. 30; Toml. ed. vol. 3, p. 640; Jour. vol. 27, p. 581.

(d) Lewis v. Pead, 1 Ves. jun. 19.

IV.-Persons intoxicated.

At law, the stability or instability of a lease made by a man under the influence of intoxication would appear from some of the cases (e) to depend on the extent of his inebriety at the time; and it is laid down that such a degree as totally subdues the reasoning faculties deprives the party of the power of forming any legal engagement (f). Lord Ellenborough, however, ruled at nisi prius, that intoxication, without reference to the degree, was good evidence upon a plea of non est factum (g). Whether the distinction obtains in this country, as in Scotland (h), is not fully established by authority.

Whatever may be the rule of law, the practice of equity on the subject is clearly ascertained. That court, considering its interference likely to operate as an encouragement to drunkenness, wisely abstains, in the absence of fraud, from enforcing or annulling the contract (i). Even particular acts of excessive drinking are insufficient to defeat the transaction in a court of equity; for the party injured may resort to his legal remedy (j).

But if by artifice the lessor be allured to drink, and advantage be taken of his condition, the Court will interfere for his protection, and rescind the contract (k). Thus, in the case of

(e) Cooke v. Clayworth, 18 Ves. 16. Smith v. Downing, Rep. temp. Hardw. by West, 93. Nagle v. Baylor, 3 Dru. & War. 60-4. Gore v. Gibson, 11 Mees. & Wel. 623.

(f) Ibid.

(g) Pitt v. Smith, 3 Campb. 33. Fenton v. Holloway, 1 Stark. 126. And see Cole v. Robins, Bull. N. P. 172. See now, as to the plea of non est factum, Reg. Gen. Hil. Term, 4 W.4., 5 Barn, & Adol. viii., ante, p. 31. n. (r). (h) "Persons while in a state of absolute drunkenness cannot oblige themselves; but a lesser degree of drunkenness which only darkens reason, has not the effect of annulling the

contract." Stair, July 29th, 1672. Lord Hatton, Ersk. Inst. 447. s. 16; Ivory's edit. vol. 2, p. 593, s. 16.

(i) Johnson v. Medlicott, 3 P. Wms. 131, n. [A]. Cory v. Cory, 1 Ves. 19. Cooke v. Clayworth, 18 Ves. 14. Cragg v. Holme, Rolls, May, 1811, cited 18 Ves. 14. Nagle v. Baylor, 3 Dru. & War. 60-4. And see Malins v. Freeman, 2 Keen, 25. 34.

(5) Smith v. Downing, Rep. temp. Hardw. by West, 90.

(k) See cases in note (i), and Rich v. Sydenham, 1 Ca, in Ch, 202. Butler v. Mulvihill, 1 Bli, P. C. 137. Dunnage v. White, 1 Swanst. 137.