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1862.

HENDERSON the sh

HENDERSON

LLOYD.

in the hands of the wife would probably not be got at by the sheriff, the settlement was with intent to delay or defeat a creditor, and so would be void ; for that, if it defeated the sheriff, it would defeat a creditor; and it was enough if Lloyd, the particular creditor, had been delayed or defeated by the deed. It appeared, however, that the other debts had been paid, and at the time of the deed he had not any idea that he would be called upon to pay the present debt, for which he was only surety. At that time he swore the debt to Lloyd did not enter into his mind at all, nor had be any desire or intent to delay or defeat the creditor. Indeed, the money was in Court, and the creditor might have it if he pleased, without the costs, and he asked the creditor Lloyd, if he would accept the money, but Lloyd objected to accept it without the costs.

The case therefore went on, and

ERLE, C. J., told the jury the question would be, whether the deed was entered into with intent to defeat or defraud creditors.

The jury thereupon said they had made up their minds upon that question.

The plaintiff, the trustee, was called, and the attorney who had prepared the deed, and who swore that he considered the assignor was solvent, and had told him that he must be so to make the deed valid.

There were no witnesses called to controvert the facts thus proved.

Wood went to the jury on behalf of the defendant, the execution creditor, urging that this was not an ordinary marriage settlement, as it conveyed all chattels, down to the smallest articles, and could only have been to avoid execution.

Erle, J., left it to the jury, whether the deed had been entered into with intent to delay or defraud creditors. No

LLOYD

doubt, if the sheriff were defeated or delayed, the creditor 1862. would be so, and it would probably be very difficult to get HENDERSON at the money in the hands of the wife, although, if he got at it, he could seize it under a fi. fa. (a); and the debts could not be taken under a writ of execution, and the deed assigned every chattel, the effect must have been to delay or defeat any creditor who pursued his remedy. But whether that was the object and intent was for the jury. If they thought that it was made with that intent, they should find for the execution creditor, the defendant; if not, then for the trustee under the deed, the plaintiff.

The jury found for the plaintiff, thinking (they said) that the deed had been fairly entered into.

Verdict for the plaintiff (6). (a) Vide 1 & 2 Vict. c. 110. (6) Vide Michael v. Gay, Vol.

I., p. 409.

LOVATT 2. TRIBE..

Spring Assizes. THIS was an action for 201., money lent on an 1 O U, On a plea of

insanity at the dated the 29th of June, 1861. The defendant denied the time of making

a contract, the debt, and pleaded that at the time of the contract he was opinion of the of unsound mind, as the plaintiff well knew.

medical men

who gave cerChambers, Q. C., and Philbrick were for the plaintiff.

tificates on which the de

fendant was Shee, Serjt., for the defendant.

confined as in. The case for the plaintiff was, that on the 29th of June, about the time,

sane, at or 1861, the defendant having applied to him for a loan of is only evidence

' for the jury,who 201., he (the plaintiff) sent, through one Hebden, a cheque, must judge of

the grounds on which Hebden cashed, and then handed the money to the which it was defendant, bringing back to the plaintiff the I O U. And formed.

V. And Where the in order to sustain his case he had to show some personal plaintiff him

self, according communication with the defendant, as it was not set up that to his own

evidence, was Hebden was his general agent.

in personal The case for the defendant was, that the money was not

it communication

with the de

fendant at the time, that, in itself, is some evidence that the plaintiff knew of the insanity, supposing the jury find the fact of insanity established.

1862.

LOVATT

u. TRIBE.

really lent to or borrowed by him at all, but obtained by Hebden for his own purposes; and that his signature to the IOU was obtained from him while he was in a state of mental incapacity. The defendant was about seventy years of age, and, having lost his wife, had married again in his old age, and had not lived happily with his second wife, who was called on behalf of the plaintiff, and described bis conduct towards her as violent, on account of which, she said, she had since left him. Before this, however, on the 24th of June, 1861 (five days before the I O U was given), two medical men signed certificates that he was of unsound mind. The certificate of one of the medical men stated as the grounds, derived from personal observation, that the party used violent language, and fancied himself to be very wealthy, &c.; and secondly, under the head of facts communicated by others, this certificate stated that the writer was told that a few days before the party had threatened to destroy himself. The certificate of the other medical man stated as the grounds of belief, founded on personal observation, “violent conduct, incoherent language and attempting injury to unmolesting persons ;” and, secondly, stated, under the head of facts derived from others, that the wife had said that he had left home without reasonable cause, wantonly spent large sums of money and taken home with him a woman, &c.

The medical men were called on the part of the defendant, and gave evidence in accordance with their certificates, and were cross-examined as to the grounds of their belief. The medical witnesses described the defendant's derangement, moreover, merely as “mania resulting from delirium tremens.And the defendant, after having been for some few days placed, upon these certificates, under the care of a physician in an asylum, was liberated and restored to his own house, where, on the 29th of June, he gave the IOU in question. On the 25th of June a medical man examined

1862.

LOVATT

TRIBE.

the defendant, and said he thought him sane and of sound mind, and it was suggested on the part of the plaintiff that the defendant only suffered for a short time from the influence of drink.

Erle, C. J., in summing up the case, said, the question for the jury lay in the smallest compass, being simply this, whether, when the I O U was given, the defendant was sane. The jury would do well, however, in deciding the question, to form their own judgment upon it, not disregarding, but not relying upon, the opinions of the medical men (a). The evidence showed some temporary derangement caused by drink; but the question was, whether the defendant was not of sound mind on the day when the IO U was given.

The jury consulted together some time, and then returned a verdict for the defendant, on the ground that he was of unsound mind on the day in question.

(a) In an action of trespass by plaintiff had been a promoter of the the alleged lunatic, the certificate, commission, or other proceeding &c. would be conclusive evidence in lunacy, he could not set up the of the insanity (if bona fide); sanity of the defendant at or about Norris v. Seed, 3 Exch. Rep. 782; the same time; Cumming v. Ince, but this is because of the sta 11 Q. B. Rep. 112. But here that tutable effect of the proceeding was not so; though on the other as a justification for the confine- band, as the plaintiff professed to ment, in analogy to a summary have been in personal communicaconviction. But at common law, tion with the defendant whom the even an inquisition of lunacy is jury found to have been insane, traversable. And, as between the that was some evidence that the alleged lunatic and a person suing plaintiff knew him to be so. The him on a contract, the effect of a note here was made just after liberaproceeding between the lunatic and tion, but that if it had been while third parties, to which the plaintiff under confinement, the law would was no party, is not conclusive, any have been the same, vide Martin more than, on an interpleader issue, v. Johnstone, Vol, I., p. 122, where an admission by the debtor behind the plaintiff set up the validity of a the back of his creditors ; Crole v. devise made while in confinement Braham, 3 Esch. 183; there being as a lunatic, but during an alleged nothing like an adjudication by a lucid interval. See also Ferguson court of law, in the nature of a v. Borrett, Vol. I., p. 613. sentence in rem. If, indeed, the

1862.

LOVATT

0. TRIBE.

Erle, C. J., asked whether they found that the plaintiff knew of it (a).

The jury said they had not considered that question.

ERLE, C. J., said it was necessary to have their verdict on it, and sent them back to consider it.

The jury again retired, and eventually returned with a verdict for the defendant on that point also, which amounted

to a

Verdict for the defendant. (u) Beavan v. MDonald, 23 L. J., Ex. 326, C. P. 474.

Coram Wightman, J.

WATTS v. AINSWORTH AND OTHERS. Spring Assizes. m. When, on let- THIS was an action on an alleged contract of sale, for ters, it is doubtful whe- not accepting three acres of white globe turnip seed. The ther there has defendants denied the contract. been a complete contract Hawkins and Addison were for the plaintiff. within the Statute of Frauds,

Lush and Prentice for the defendants. by reason of the absence of

The plaintiff was a seed merchant at Hythe, who conan answer in writing to a tracted with the farmers and turnip-growers to buy the written offer by the defendant, seed at so much per acre, taking the chance of the crops it is enough that there has as they stood, and resold to seedsmen. The plaintiff in been a subse- March, 1861, wrote to the defendants offering them five assent by the acres of white globe turnip seed at 18s. 6d. per bushel. plaintiff, there being a "note The defendants wrote that they could perhaps take two or or memorandum signed by three act

three acres at 16s. 6d. The plaintiff replied to this that he the party to be could not take their offer, and saw no reason to take less charged," i.e. the party sued. than 18s. To this the defendants wrote an answer, which

ran thus:-“We will take the produce of three acres at 18s., to be delivered as soon as harvested. Let us know what other sorts you may have to offer. Waiting your reply, we remain, &c.” To this there was no reply in

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