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Decisions of the Superior Courts of New South Wales, 1788-1899

Flanagan v. O'Sullivan [1857] NSWSupCMB 5

married women's legal disabilities - lunacy - fieri facias, sale at undervalue

Supreme Court of New South Wales, Moreton Bay

Milford J., 20 April 1857

Source: Moreton Bay Courier, 25 April 1857, p. 2

In Equity.

FLANAGAN v. O'SULLIVAN.

This was an application for an injunction. Mr. Pring, instructed by Mr. Rawlins, appeared for the plaintiff.

The circumstances of the case are briefly these: The plaintiff, Peter Flanagan, who possessed some property in Ipswich, Little Ipswich, and Drayton, was committed some time ago to the Tarban Creek Lunatic Asylum as being of unsound mind; and the defendant, Patrick O'Sullivan, lately a storekeeper in Ipswich, to whom he was indebted in the sum if £238, obtained a judgment against him, by default, while he was confined in the Asylum; execution followed, and that part of the plaintiff's property which is situated in Ipswich and Little Ipswich, was sold by the Sheriff's bailiff at much less than its real value, it is alleged; the present defendant being the purchaser. The amount derived from the sale did not satisfy the execution by the sum of £74, and the defendant had instituted other proceedings against the plaintiff, and the object of the injunction was to restrain him from proceeding against the property at Drayton, or against the furniture of the house occupied by the plaintiff's wife at Little Ipswich. If the estate were properly realised, it was said there would be sufficient to satisfy all the creditors, and have a balance for the plaintiff, his wife, and family.

His Honor said that in the present state of the case he could not interfere. He directed that a notice of the application, and also a copy of the bill, should be served on the opposite party, that he might be able to appear.

The application was accordingly postponed, and the Court adjourned till Wednesday.

It was stated in the course of the proceedings that the bailiff's charges in the case of O'Sullivan against Flanagan amounted to £50.

Milford J., 13 May 1857

Source: Moreton Bay Courier, 16 May 1857, p. 2

Equity Business.

FLANAGAN v. O'SULLIVAN.

THIS was an application for an injunction to restrain the defendant from proceeding against the plaintiff's property on an unsatisfied execution for the sum of £74, or from obtaining judgment on a promissory note for £100 given by the plaintiff to the defendant. The application was first made on the 20th of last month, but postponed in order to allow of notice being served on the opposite party.

Mr. Pring appeared in support of the application, and it was opposed by Mr. H. Milford. The plaintiff's attorneys were Mr. Rawlins and Mr. Cooke; the defendant's attorneys, Mr. Roberts and Mr. Macalister.

Two affidavits made by the plaintiff's wife were read in support of the application, and from them it appeared that Peter Flanagan, the plaintiff in this case, resided at Drayton until within a short time back, and carried on the business of a farrier there. He had for about three years exhibited symptoms of insanity, and in the latter part of the year 1855 he was committed to Brisbane Gaol for three months under the Vagrant Act for using indecent language. At the time he possessed property in Ipswich, Little Ipswich, and Drayton. During her husband's incarceration, Mrs. Flanagan removed to Little Ipswich, where she opened a store, obtaining goods from Mr. O'Sullivan, a storekeeper in Ipswich , to a considerable amount. After the plaintiff had been released from gaol, he gave the defendant a promissory note for £100 in part payment of goods supplied. The plaintiff was committed to Tarban Creek on 4th April as a lunatic, where he has remained to the present time. Shortly after the plaintiff's committal to Tarban Creek, the defendant obtained judgment against him for the sum of £238, and part of his property was sold by the sheriff's bailiff. An allotment in Ellenborough-street was sold for the sum of £190, a Mr. Johnston being the purchaser; but he failing to complete the purchase, the allotment was resold, and Mr. O'Sullivan, the defendant, became the purchaser for £160. The plaintiff's wife now alleged that this property was sold for much less than its real value, it being valued at £600; that the sale was not made sufficiently public; that there were not more than ten persons present; and that the bailiff's charges were more than double the proper amount. There were still £74 due to the defendant on an unsatisfied execution, besides the £100 on the promissory note, for which it was feared a judgment would be obtained at the next Civil sittings. The plaintiff's wife believed, that if the remainder of the property were sold in a proper manner, there would not only be sufficient to pay off the defendant's claims, but there would be a surplus for the benefit of herself and children.

Several affidavits in opposition to the application were put in. It appeared from affidavits made by the defendant, that Mr. Flanagan opened an account with him on the 15th November, 1855; and he received the title-deeds of the Ellenborough-street property in security for the goods supplied. This property was bought at the sheriff's sale by Mr. Johnston, but in consequence of representations made to him by the plaintiff's wife he refused to complete the purchase, and the property was again put up for sale. Mrs. Flanagan tried to prevent the sale, and bills were posted up in the streets cautioning the public against purchasing the property. At the sale there was a large attendance. The property was knocked down to him for £160, the next highest bid being £155. Some other property was sold for £200. He only received £173 from the proceeds of the sale, leaving a large balance still due to him. The prices he paid were full prices at the time. He has never enforced the writ for the balance of £74, though he might have done so. While Flanagan was confined in Brisbane Gaol, he received a letter from him, thanking him for the attention he had paid to plaintiff's family.

Several other affidavits were put in on the same side. Dr. Challinor deposed that he was present at the sale, at which there was a fair attendance. The sale was conducted with perfect fairness, and had it not been for the defendant, the property would not have realised so much as it did. Mr. Gill deposed that he had sold an allotment in Ellenborough-street, only five removes from the plaintiff's property, for £105. Mr. Daly, the sheriff's bailiff, deposed as to the sale being properly advertised and conducted, and as to the reasonableness of the charges made by him; he believed that the property realised more than it was worth. Affidavits by Mr. Ransom and Mr. Lord were also produced; Mr. Lord did not think the plaintiff was insane, as he had always conducted his business in a proper manner.

Mr. Pring addressed the Court, and said that from the fact sworn to by Flanagan's wife, that her husband was insane for three years, they were bound to set aside any transactions between him and the defendant. He maintained that the plaintiff was a lunatic at the time he was sent to gaol, and no attempt was made by the opposite side to deny it. He submitted as a general rule that a man, while confined as a lunatic, was not bound by the acts of his wife. The affidavits on the opposite side did not touch the main question; they referred principally to the value of the land. The statement of Mrs. Flanagan that her husband had been insane at the beginning of 1854 was not contradicted.

His Honor said that the evidence was that of wife for her husband, and he was not sure whether it was admissible; but as no objection had been made, he would allow it.

Mr. Milford characterised the affidavits of the plaintiff's wife as scandalous, as they imputed the worst of motives to Mr. O'Sullivan and the sheriff's bailiff. With all due respect to the gentlemen of the Press, hr thought that the publication of the ex parte statements in this case was unfair.

Mr. Pring objected to this. The Press had done no more then it was entitled to do in reporting the case. Nothing was reported except what was stated on affidavit.

His Honor said that where there was an affidavit the Press was perfectly right in reporting the case.

Mr. Milford continued: he would not refer to the sale of the property, but would come to the main point, whether Flanagan was a lunatic at the time of those transactions. He did not think the fact of Mr. Flanagan having acquired a considerable amount of property was in favour of the supposition that he was insane; and it did not appear that any attempt had been made by the plaintiff's wife to treat him as a lunatic. There were three facts against the supposition that he was a lunatic---that no commission had been issued to enquire into his lunacy; that he had acquired property; and that he was sent to Brisbane Gaol under the Vagrant Act. The fact of his giving written a letter to O'Sullivan during his imprisonment, was a proof that he was not insane. He confessed that up to the time of his being sent to Tarban Creek, he was in a proper frame of mind to transact his business; and he submitted that there was no ground for the injunction being granted.

Mr. Pring made a few observations in reply.

His Honor said that it did not appear that the defendant had acted with any fraudulent intention, nor did it seem that he was aware that the plaintiff was insane. The simple point was, whether the plaintiff was a lunatic at the time of the transactions; and he did not think that it was proved that he was insane at that time. From the course the proceedings had taken, the evidence of the wife had been admitted; but it could not be allowed to weigh in the mind of the judge in equity. They had evidence that the plaintiff carried on business up to the time of his being sent to gaol; and though he might be insane when drunk, there was nothing to show that he was insane when he executed the promissory note. This note might be considered as a ratification of the original transactions between his wife and the defendant. As to the sheriff's sales, nothing was adduced to allow that O'Sullivan had acted unfairly. He did not think there was any ground for granting the injunction; and he would therefore dismiss the motion with costs.

Milford J., 12 August 1857

Source: Moreton Bay Courier, 15 August 1857, p. 3

IN EQUITY.

FLANAGAN v. O'SULLIVAN

This was a motion by Mr. Roberts on behalf of the defendant to stay all proceedings in this suit until a new friend had been appointed, and security given for costs. The application was grounded on an affidavit of the insolvency of the next friend,

Mr. Pring opposed the application on the grounds that unless in the case of the next friend of a feme covert the  Court  would not stay proceedings, and it was only done in such a case for the reason that a feme covert holding no property a defendant would have no security for his costs.

His Honor thought this case must be treated in the same way as that of a feme covert, and granted the application. The order made was: " That all proceedings be stayed until the next

friend be changed, and a new one appointed who must give security for past costs and find sureties to join in such security as the Master shall fix.

Published by the Division of Law, Macquarie University