Thursday, September 10.

Tuapeka Times, Volume VII, Issue 391, 16 September 1874, Page 5

Thursday, September 10.

DEMURRER.

Isaacs and Another v. Gallagher — Argument of demurrer.

Mr Stout appeared in support of the demurrer ; Mr Macassey, with him Mr Chapman, in support of the pleadings. The plaintiffs are Woolf Isaacs and R M. Marks, and the defendant John Gallagher. The acfion was brought on a bill of exchange for Ll5O. It was tried at the last sittings of the Court, aud tne jury gave a verdict for the amount; of the bill. The question now in dispute between the parties had been raised by a plea pleaded puts darrein continuance, in which it was alleged that Isaacs was lunatic at the time of action brought, but only so found, after action brought, by inquisition, and the committee of his estate had been appointed. To this plea there were both demurrer and replication. The demurrer urged that the plea was no defence to tbe action, and the replication asserted that the action had been contiuued with the consent of the committee of the estate. The real point for consideration was, does the lunacy of a plaintiff abate or discontinue an action ?

Mr Stout submitted five grounds : 1. That the said plea disclosed no defence to this action. Under that head be submitted that the rulea of that Court did not provide for a plea of the character involved The distinction between those rules and the Common Law Procedure Act was plain. This was a matter of misjomder or nonjoinder. He cited rules from 117 to 125. and the .'i6th section of the Common Law Practice aud Procedure Act. It should not be by pica in abatement, but by notice. The plea, if it amounted to anything, wa? a plea in abatement, and was no answer to the action. Th rt next point was, " That the matters alleged iv the said plea do not affectthe right of the said Robert Michael Marks to maintain this action." In respect to that ground he cited Diesy's Treatise ou the Parties to an Action, 10S ; Emery and another v. Maeklow, 10 Biag., 23 } Whitehead v. Hughes, 2 Dowl., P.C, 258. If the. partnership still subsisted between Isaacs and Marks, r.his action was prnperly brought, and, to show that it did not subsist, he would cite several cases and text-books. The third ground was, "That as the said plea does not show that the partnership between the said Robert Michael Marks and Woolf Isaacs has been dissolved, this action is maintainable by them as plaintiffs." Under this head, the learned counsel cited the Lunatics Act, 1868 ; Waters v. Taylor, 2 Vesey and Beame, 303 ; Sayer and Bennett, 1 Oox ; Liadley on Partnership, 223 ; Dixon on Partnership, ; and Gow on Partnership, 221 ; also several cases. The fourth ground was, ' ' That it is not alleged in the said plea that Abigail Adelaide Isaacs, therein mentioned, has become entitled, on behalf of the said Wolf Isaacs, to a share of the partnership property of the firm of Isaacs and Marks, or to any of the moneys sued for in this action." Mr Stout cited various sections of the Lunatic Act, 1808. The fifth ground followed from the previous one simply as a corollary. All the cases showed that Courts of Equity did not consider a partnership at an end merely by the lunacy of one of the partners. If Marks was entitled to bring the action at all, it must be in the names of the parfcnei s j he could not bring it ia the name of the committee, because the oommictee were not his part'uePd. The action, therefore, was properly brought. Mr Macassey, on rising to address the Court in support of the pleadings, referred to the decision in the recent case of Mordaunt v. Mordaunt — that the House of Lords ha»i held that the action could be continued, not withstanding the lunacy of the respondent, Lady Mordaunt ; but the decision did not say in what form, and therefore that case did not jjtrictly apply here ; but the contention was aoi&ewhat similar. The learned counsel then argued, oft' authorities which he cited, that lunacy, so far '»s t^e purposes of this action were coucerned, were equivalent to outlawry or death, and that the civil rights cf the lunatic ceased. The rules mentioned by his learned friend could have no application, #nd he therefore did not clearly see for what purpose they were cited. If at the time of action fraught the plaintiff had been found to be a lunatic, and a committee had then been appointed, the argument would have been intelligible, but hare ihe report showed that although the person in question was of unsound mind at the time of action brought, the inquisition was sometime afterwards. Touching the affect of the death pf one of two persons, he gitgd Fe]U y. Linnell, L. Eep. 3, C.P.,-441; also, Bar»weljy. Sutherland, 19 LJ., C, P., 290. Thgre was no decision in common law exactly in pojnt, and the rules of that Court did not provide for a suggestion of lunacy. Bacon's Abridgement — tit. Abatement, 283— showed that the action had abated by the lunacy. In Courtt of Equity the committee was the proper party to bring and defend suits. He cited jWggry. Stewart, 9 W. Rep., 226; Timpson v. Lpndoft and North- Western Hailway Company, VV, B^p., 558 j Bryan v. Twjgg. 3 W. Kep., 42 } Ly»U y. Mercer, 1, S. and S., 356 ; Brangan v. Gorges, 7i I- K - Reps , 225 ; Stanton v. Peroival, 5, H. of L. Cases, 284 ; and re Marshall, 1, Curtis, 297 Also, Daniel's C. P., 1,390, 2nd vol., on the subject of abatement. The Court had power, un4Gr 3 aad 4, William iV., to make the co,mm£t.te/? a party to the suit, after its commencenjeui. if either the plaintiff or the defendant had hgSQgtf hmatic. An important pintwas whether wsi^ff^pt would follow the equity or common law practice $t Home. Mr iStout was heard in reply. The'quektion as to partnership had been left untouched. The committee did not become a pjirjbn.er of Marks ; aor did the committee have tfoe ejitate vested in it. In other partnership scions, in case of death, insolvency, or marriage, » yar.tnersb.ip, ipso facto, dissolved, except umler ao vg&iaitmb to the' contrary, and under special circumstances. Here the partnership was not dissolved, and could it be said that the party^ers could not sue ? ' iifs Ho^or §^d he was of opinion that upon this 'demurrer the judgment of the Court must be for the plaintiff. He thought the plea —the after plea: — disclosed no answer to tjje action ; and he lounged his judgment entirely upon' the principle laid down in all t^e^opks.tjhat lunacy, even after jthe inquisition, the .finding t/jj!ts party lunatic, and also after the appoiulmeijyJf tine cpmm^ttge, did not operate 3g * d^solutjibn or j% partnership, he could not see how £t was possible to resist the corollary from that prjncjple that the sane partner retained the right to sue ja his own name. But all he (the learned Judge) decided was that the action had been properly brought in the name of both parties Hitj judgment was merely for the plaintiff, and upon the whole record. Tho Court then adiourned.